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BA-24FC-611-04/2016

PLAINTIF Tan See Hiang @ Tan Ah Moy DEFENDAN 1. Malayan Banking Berhad 2. Pentadbir Tanah Daerah Petaling

17/10/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8e05693b-96dd-4522-bf0f-30f24422dd74&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO: BA-24FC-611-04/2016 Dalam Perkara Seksyen 418 Kanun Tanah Negara 1965 dan Rayuan terhadap keputusan Pentadbir Daerah Petaling Dan Dalam Perkara mengenai suatu Hartanah bernombor Suratan Hakmilik HSM 12298 PT 46 Mukim Sungai Buluh Daerah Petaling Selangor Darul Ehsan dan perkara mengenai suatu Gadaian Undang-Undang dalam Kanun Tanah Negara 1965 Dan Dalam Perkara Cagaran kepada Malayan Banking Berhad (3813-K) melalui Perserahan No. 3498/94 2 Jilid: 71 Folio:47 dan Perserahan No 4197/2005 Dan Dalam Perkara mengenai suatu Perintah Jualan bertarikh 24hb Januari 2015 dan/atau 20hb September 2013 serta Jualan Lelong pada 14hb Mei 2015 di Pejabat Tanah Petaling, Selangor Darul Ehsan Dan Dalam Perkara di bawah Seksyen 260, 261, 262 dan 263 Kanun Tanah Negara 1965 serta Perkara mengenai Aturan 55A, Kaedah- Kaedah Mahkamah 2012 ANTARA Tan See Hiang @ Tan Ah Moy ...Plaintif (No. K/P: 360530-01-5584/4056114) 3 DAN 1. Malayan Banking Berhad 2. Pentadbir Tanah Daerah Petaling …Defendan- Defendan ALASAN PENGHAKIMAN (Kandungan 1- Rayuan menurut seksyen 418 Kanun Tanah Negara (KTN) 1965 untuk mengenepikan Perintah Jualan dan Lelongan Awam) A. PENGENALAN [1] Plaintif (Tan See Hiang @ Tan Ah Moi) yang bersandarkan kepada peruntukan seksyen 418 Kanun Tanah Negara (KTN) 1965 telah memfailkan Saman Pemulanya bertarikh 29.4.2016 untuk memohon daripada Mahkamah ini perintah-perintah seperti berikut: i) Satu Perintah membatalkan Perintah Jualan bertarikh 24hb Januari 2015 yang dibuat oleh Pentadbir Tanah Petaling. ii) Satu Perintah dan Deklarasi bahawa segala tindakan dan perbuatan dibawah Perintah Jualan tersebut termasuk Lelongan Awam bertarikh 14hb Mei 2015 adalah tidak sah dan terbatal kerana bertentangan dengan peruntukkan Kanun Tanah Negara 1965. 4 iii) Satu Perintah bahawa semua pihak yang terlibat dikembalikan kepada keadaan asal dan Lelongan Awam yang telah dijalankan pada 14hb Mei 2015 adalah tidak sah dan terbatal. iv) Lain-lain perintah yang Mahkamah dapati sesuai dan berpatutan. v) Kos [2] Mahkamah ini perlu menyatakan di sini bahawa jika merujuk kepada intitulement atau hal perkara yang tertera di Saman Pemula Plaintif, Plaintif telah menggerakkan tindakannya di Mahkamah ini bersandarkan kepada peruntukan seksyen 418 KTN. Seksyen 418 memperuntukkan berikut: 418. Appeals to the Court (1) Any person or body aggrieved by any decision under this Act of the State Director, the Registrar or any Land Administrator may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court. 5 (2) Any such appeal shall be made in accordance with the provisions of any written law for the time being in force relating to civil procedure; and the Court shall make such order thereon as it considers just. (3) In this section “decision” includes any act, omission, refusal, direction or order. [3] Walaupun Plaintif telah bersandarkan kepada prosedur rayuan menurut seksyen 418 KTN iaitu merayu terhadap keputusan Pentadbir Tanah tetapi di dalam Saman Pemulanya juga Plaintif telah juga menamakan Malayan Banking Berhad sebagai Defendan Pertama. [4] Memandangkan seksyen 418 KTN memperuntukkan tempoh had masa tiga bulan dari tarikh keputusan disampaikan kepada orang yang terkilan bagi memfailkan rayuan mereka, Defendan Kedua (Pentadbir Tanah Daerah Petaling) telah menimbulkan bantahan terhadap Saman Pemula Plaintif atas isu had masa. Isu ini akan dipertimbangkan kelak pada tajuk isu permulaan. B. KES PLAINTIF 6 [5] Saman Pemula Plaintif telah disokong oleh afidavit sokongannya di dalam Kandungan 2. Di dalam Kandungan 2 tersebut, Plaintif telah mendeposkan pengataan-pengataan berikut: 5.1 Plaintif adalah tuanpunya berdaftar hartanah yang terdiri di atasnya sebuah rumah berkembar dua tingkat yang beralamat No.10, Jalan 19/6, Seksyen 19, 46300, Petaling Jaya, Selangor Darul Ehsan yang terkandung di HS (M) 12298 PT 46 Mukim Sungai Buluh, Daerah Petaling Negeri Selangor Darul Ehsan (“hartanah tersebut”). 5.2 Hartanah tersebut telah dilelong oleh Defendan Pertama di lelongan awam yang telah dijalankan di Pejabat Daerah dan Tanah Petaling, Selangor pada 14hb Mei 2015. 5.3 Terdapat dua gadaian yang telah didaftarkan ke atas hartanah tersebut. Pada tahun 1994, Pacific Bank Berhad telah mendaftarkan gadaian perserahan No.3498/94 Jilid 246, Folio 47 (Gadaian Pertama) apabila hartanah tersebut telah 7 dicagarkan oleh Plaintif sebagai jaminan untuk kemudahan pinjaman yang diberikan oleh Pacific Bank Berhad bagi membiayai pembelian hartanah tersebut. Kemudian pada tahun 2005, Defendan Pertama pula telah mendaftarkan gadaian perserahan No.4197/2005 17 (Gadaian Kedua) apabila Plaintif telah mencagarkan hartanah tersebut kepada Defendan Pertama sebagai jaminan kepada pinjaman yang diberikan kepada anak lelakinya bernama Wong Yew King (Wong). 5.4 Plaintif seterusnya menyatakan bahawa pinjaman hutang bagi gadaian pertama telahpun dibayar dengan sepenuhnya pada tahun 2006. 5.5 Plaintif telah mendakwa bahawa lelongan hartanah yang dijalankan oleh Defendan Pertama pada 14hb Mei 2015 adalah berasaskan gadaian pertama. Adalah menjadi dakwaan Plaintif seterusnya bahawa Defendan Pertama telah menguatkuasakan haknya atas gadaian pertama yang telahpun selesai, maka apabila tidak ada gadaian makanya tidak ada keingkaran yang 8 wujud. Menurut Plaintif lagi, oleh itu segala notis-notis keingkaran yang dikeluarkan oleh Defendan Pertama atas gadaian pertama tersebut adalah salah dan tidak sah dan justeru itu perintah jualan dan lelongan hartanah tersebut yang telah dijalankan oleh Defendan Pertama itu adalah juga tidak sah dan patut dibatalkan. 5.6 Berhubung dengan gadaian kedua pula, Plaintif telah mendakwa bahawa walaupun beliau adalah peminjam bersama, namun segala urusan mengenai pinjaman telah dibuat oleh Wong dengan Defendan Pertama. Beliau hanya merupakan peminjam atas nama sahaja kerana semua jumlah pinjaman telah dilepaskan kepada Wong dan beliau tidak pernah menerima sebarang wang dari Defendan Pertama, 5.7 Plaintif juga mendakwa bahawa beliau tidak mempunyai sebarang pengetahuan mengenai apa-apa proses perintah jualan dan lelongan awam oleh Defendan Pertama atau 9 Defendan Kedua ke atas hartanah tersebut kerana Wong tidak pernah memaklumkan kepadanya. [6] Berdasarkan pengataan-pengataan di atas, Plaintif telah cuba untuk mengenepikan dan membatalkan Perintah Jualan bertarikh 20.09.2013 dan Lelongan Awam yang dijalankan pada 14.05.2015 dengan membangkitkan alasan-alasan berikut: i) Plaintif tidak pernah menerima apa-apa Notis mengenai sebarang keingkaran di dalam bayaran pinjaman daripada Defendan Pertama dan hartanah tersebut telah dilelong tanpa pengetahuannya sebagai tuanpunya berdaftar. ii) Defendan Pertama telah mendapatkan Perintah Jualan dan melelong hartanah tersebut berdasarkan gadaian yang salah iaitu dengan No. Perserahan 3498/1994 gadaian pertama yang telah selesai dan bukannya ke atas gadaian kedua. iii) Serahan Notis 16D adalah tidak sah kerana Notis 16E telah tidak diserahkan kepadanya. 10 iv) harga rezab lelongan hartanah tersebut adalah tidak adil dan tidak menasabah kerana ianya di bawah harga pasaran [7] Mahkamah perlu menyatakan di sini bahawa melalui Perintah Perletakkanhak (Vesting Order) bertarikh 22.12.2000 yang dikeluarkan Mahkamah Tinggi di dalam kes No.D9-24-239-2000, Pacific Bank Berhad telah bergabung dengan Defendan Pertama dan keseluruhan aset-aset dan liabiliti-liabiliti Pacific Bank Berhad telah dipindahkan sepenuhnya kepada Defendan Pertama. B. Isu Pemulaan Rayuan seksyen 418 KTN adalah di luar tempoh masa. [8] Defendan Kedua telah membangkitkan bahawa rayuan seksyen 418 KTN yang difailkan oleh Plaintif terhadap Defendan Kedua adalah di luar tempoh had masa. Menurut peguam Defendan Kedua, seksyen 418(1) KTN telah memperuntukkan bahawa apa-apa rayuan terhadap keputusan Pentadbir Tanah bolehlah dibuat dalam masa 3 bulan dari tarikh ia dimaklumkan kepada pihak yang terkilan. 11 [9] Di dalam kes ini, semasa siasatan-siasatan untuk perintah jualan dijalankan, Wong telah mengemukakan kepada Defendan Kedua satu Surat kuasa Wakil (Power of Attorney) bertarikh 2.12.2012 yang ditandatangani Plaintif yang memberi kuasa kepada Wong untuk mewakili Plaintif berhubung dengansegala hal/perkara hartanah tersebut. Selain daripada menghadiri siasatan-siasatan yang dijalankan di hadapan Defendan Kedua, Wong juga telah hadir pada tarikh lelongan awam dijalankan pada 14.5.2015 yang mana pada tarikh 14.5.2015 ini hartanah tersebut telah berjaya dijual. [10] Oleh itu, adalah dihujahkan oleh Defendan Kedua bahawa memandangkan rayuan ini telah hanya difailkan oleh Plaintif pada 29.4.2016 sedangkan perintah Jualan telah dikeluarkan oleh Defendan Kedua pada 24.1.2014/20.9.2013 dan lelongan awam pada 14.5.2015, di mana terdapat kelewatan selama dua (2) tahun dari tarikh perintah jualan dikeluarkan dan satu (1) dari tarikh lelongan. Menurut Defendan Kedua lagi bagi kelewatan tersebut, tidak ada alasan yang telah diberikan oleh Plaintif. Untuk hujahan ini peguam Defendan Kedua telah merujuk kepada Mahkamah ini 12 kepada peruntukan undang-undang had masa dan kes-kes yang telah diputuskan berhubung dengan isu ini seperti berikut: i. Seksyen 38 Akta Prosiding Kerajaan 1956 Limitation of Acts 38. Any written law relating to the limitation of time for bringing proceedings against public authorities may be relied upon by the Government as a defence in any civil proceedings against the Government. ii. Alias bin Ismail v Hairuddin bin Mohamad & Anor [1997] 4 CLJ 669 di mana Mahkamah Rayuan telah memutuskan bahawa Mahkamah tiada budi bicara untuk mengenepikan pembelaan had masa: “The Court has no discretion to set aside a defence of limitation.” iii. Credit Corp. (M) Bhd. V. Fong Tak Sin [1991] 1 CLJ 69, Mahkamah Agung telah memutuskan bahawa: 13 “The limitation law is promulgated for the primary object of discouraging plaintiffs from sleeping on their actions and more importantly, to have a definite end to litigation. This is is accord with the maxim interest reipublicae ut sit finis litiup that in the interest of the State there must be an end to litigation. The rationale of the limitation law should be appreciated and enforced by the Courts.” [11] Di dalam perkara ini, Mahkamah ini bersetuju dengan hujahan peguam Defendan Kedua bahawa berdasarkan peruntukan seksyen 418 KTN, rayuan Plaintif terhadap keputusan-keputusan Defendan Kedua sememangnya adalah di luar had masa yang ditetapkan. Plaintif juga telah tidak langsung mengemukakan sebarang alasan ke atas kelewatan tersebut. Justeru itu, atas isu had masa ini sahaja rayuan Plaintif terhadap Defendan Kedua semestinya gagal. [12] Namun, memandangkan Plaintif telah juga mencabar tindakan dan perlaksanaan penguatkuasaan hak statutori Defendan Pertama di bawah gadaian atas alasan-alasan yang dibangkitkan di perenggan 5 alasan penghakiman ini, maka Mahkamah ini akan seterusnya 14 mempertimbangkan samada alasan-alasan Plaintif itu mempunyai merit atau sebaliknya. C. JAWAPAN DEFENDAN PERTAMA [13] Defendan Pertama telah membantah permohonan Plaintif dengan sekeras-kerasnya. [14] Defendan Pertama di dalam membantah permohonan Plaintif telah memfailkan Afidavit Jawapan (1) Defendan Pertama yang diikrarkan oleh Sukbir Singh a/l Gurbachan Singh (Kandungan 4) yang merupakan Pengurus Bad Debt Recovery, Asset Quality Management, Defendan Pertama. [15] Latar belakang pinjaman yang diterima oleh Plaintif dan Wong serta kronologi tindakan-tindakan yang telah diambil oleh Defendan Pertama sehingga hartanah tersebut dilelong pada 14.5.2015 telah dinyatakan dengan terperinci di dalam Kandungan 4. 15 [16] Pada tahun 1994, di atas permintaan Plaintif, Pacific Bank Berhad telah memberikan kepada Plaintif satu kemudahan pinjaman perumahan (pinjaman 1) untuk membiayai pembelian hartanah tersebut. Bagi kemudahan pinjaman perumahan 1 tersebut, Plaintif telah mencagarkan hartanah tersebut sebagai jaminan pembayaran balik pinjaman perumahan 1 tersebut dan oleh itu Gadaian pertama telah dilaksanakan bagi maksud tersebut. [17] Walaubagaimanapun, sebelum pinjaman 1 tersebut diselesaikan, pada tahun 2005 Plaintif dan Wong telah memohon untuk mendapatkan Pinjaman Perumahan Semula (Re-Financing) daripada Defendan Pertama bagi tujuan pelaburan “personal investments”. Pinjaman Re-Financing tersebut telah ditawarkan kepada kedua Plaintif dan Wong melalui satu Surat Tawaran bertarikh 03/08/2005. Surat Tawaran bertarikh 03/08/2005 tersebut telah membutirkan pinjaman Re-Financing seperti berikut:- No. Nombor Akaun Jenis Pinjaman Jumlah Pinjaman 16 1. 514561301354 Pinjaman Overderaf RM 700,000.00 2. 414561104031 Pinjaman Terma RM 340,000.00 MRTA RM 10,724.00 JUMLAH RM1,050,724.00 [16] Sebagai sekuriti atau jaminan kepada Pinjaman Re-Financing tersebut, Plaintif telah mencagarkan hartanah tersebut kepada Defendan Pertama melalui Borang Gadaian (16A) yang telah ditandatangani oleh Plaintif pada 15/08/2005. Seterusnya Gadaian Kedua tersebut telah didaftarkan di Pejabat Tanah Daerah Petaling, Selangor. [18] Plaintif sendiri dan Wong telah menandatangani Perjanjian Pinjaman Re-Financing bertarikh 15/08/2005 bagi membolehkan Pinjaman tersebut diluluskan oleh Defendan Pertama atas terma-terma berikut: i. Pinjaman Overderaf Bayaran balik Pinjaman adalah berdasarkan kepada tuntutan yang dibuat oleh Defendan Pertama di mana Defendan Pertama 17 mempunyai hak untuk menarik balik dan/atau menamatkan Pinjaman Overderaf tersebut pada bila-bila masa tanpa sebab melalui Notis secara bertulis. Kadar Faedah Kadar Pinjaman Asas Semasa + 0.60% yang dikira pada kiraan harian (di mana Kadar Pinjaman Asas Semasa pada 03/08/2005 adalah 6% setahun). Walaubagaimanapun, Kadar Pinjaman Asas Semasa tersebut sentiasa berubah-ubah pada bila-bila masa tertakluk kepada budi bicara Defendan Pertama. iii. Pinjaman Terma dengan Kadar bayaran balik Pinjaman seperti berikut: (a) Untuk Tahun Pertama-RM1,129.00 sebulan; (b) Untuk Tahun Kedua-RM1,857.00 sebulan; (c) Untuk Tahun Ketiga hingga Kelima-RM2,063.00 sebulan; (d) Untuk Tahun Keenam hingga Tahun Ketiga Puluh-RM2,090.00 sebulan sehingga penyelesaian penuh. Walaubagaimanapun, kadar bayaran ansuran bulanan dan juga tempoh bayaran ansuran bulanan tersebut sentiasa berubah-ubah pada bila- bila masa tertakluk kepada budi bicara Defendan Pertama. 18 Kadar Faedah a) Untuk Tahun Pertama- Faedah pada kadar 1% setahun yang dikira pada kiraan harian daripada tarikh pengeluaran; b) Untuk Tahun Kedua- Faedah pada kadar 5% setahun yang dikira pada kiraan harian; c) Untuk Tahun Ketiga hingga Tahun Kelima- Kadar Pinjaman Asas Semasa + 0.00% yang dikira pada kiraan harian; dan d) Untuk Tahun Keenam hingga Tahun Ketiga Puluh- Kadar Pinjaman Asas Semasa + 0.15% yang dikira pada kiraan harian sehingga penyelesaian penuh (di mana Kadar Pinjaman Asas Semasa pada 03/08/2005 adalah 6% setahun). Walaubagaimanapun, sekiranya terdapat kemungkiran di dalam pembayaran Pinjaman Overderaf dan Pinjaman Terma tersebut, Defendan Pertama mempunyai hak untuk menukar kadar Faedah di (a) hingga (d) di atas kepada kadar Faedah yang lebih tinggi. [19] Justeru, wang pinjaman Re-Financing tersebut telah dilepaskan kepada Plaintif dan Wong sebagai peminjam-peminjam bersama. Kegagalan Plaintif dan Wong membuat pembayaran balik pinjaman Re Financing. 19 [20] Namun, Plaintif dan Wong telah mengingkari terma-terma dan syarat-syarat yang terkandung di dalam Surat Tawaran dan juga Perjanjian Pinjaman Re-Financing tersebut apabila gagal menjelaskan bayaran ansuran bulanan ke atas pinjaman Re- Financing tersebut. Lima (5) Notis-Notis Tuntutan dan Penamatan dikeluarkan oleh Defendan Pertama kepada Plaintif dan Wong. [21] Atas kegagalan Plaintif dan Wong membuat pembayaran ansuran terhadap pinjaman Re-Financing tersebut, sebanyak lima (5) Notis Tuntutan dan Penamatan masing-masing bertarikh 03/12/2007, 31/12/2008, 22/01/2010, 10/05/2010 dan 16/11/2010 dikeluarkan oleh Defendan Pertama kepada Plaintif dan Wong. Notis Kemungkiran Mengenai Sesuatu Gadaian Borang 16D KTN (Borang 16D) telah dikeluarkan dan diserahkan kepada Plaintif. [22] Borang 16D bertarikh 01/11/2011 telah dikeluarkan oleh Defendan Pertama dan diserahkan kepada Plaintif. 20 Pemfailan Borang 16G KTN dan enam (6) siasatan telah dijalankan oleh Defendan Kedua dengan kehadiran Wong pada tarikh-tarikh siasatan. Siasatan telah ditangguhkan sebanyak lima (5) kali. [23] Defendan Pertama seterusnya telah memfailkan Borang 16G di Pejabat Tanah Daerah Petaling, Selangor pada 05/12/2011. i. Siasatan kali Pertama telah ditetapkan pada 31/01/2012 tetapi telah ditangguhkan kerana Wong yang mewakili Plaintif telah membuat permohonan untuk Penjadualan Semula (Re- scheduled) Pinjaman Perumahan tersebut dengan Defendan Pertama. Namun, Plaintif dan Wong telah memungkiri persetujuan untuk membuat pembayaran ansuran pinjaman Re-Financing tersebut dan tarikh siasatan kali kedua telah ditetapkan pada 27/03/2012. ii. Siasatan kali Kedua pada 27/03/2012 juga telah ditangguhkan kerana Wong telah hadir dan berjanji untuk membuat bayaran dengan Defendan Pertama. Plaintif dan Wong masih gagal 21 membuat bayaran ansuran bulanan sepertimana yang telah dijanjikan. iii. Siasatan kali Ketiga pada 28/08/2012 sekali lagi ditangguhkan kerana Wong yang mewakili Plaintif telah hadir dan berjanji untuk membuat bayaran dengan Defendan Pertama. iv. Siasatan kali Keempat telah ditetapkan pada 18/12/2012 juga telah ditangguhkan kerana Wong yang mewakili Plaintif telah hadir dan berjanji untuk membuat bayaran pinjaman tetapi gagal untuk membuat bayaran ansuran pinjaman. v. Siasatan kali Kelima telah ditetapkan pada 14/05/2013 telah sekali lagi ditangguhkan kerana Wong yang mewakili Plaintif telah hadir dan sekali lagi telah berjanji untuk membuat bayaran dengan Defendan Pertama. vi. Siasatan kali Keenam telah ditetapkan pada 20/09/2013 dan atas kegagalan Plaintif dan Wong membuat bayaran ansuran 22 bulanan sepertimana yang dipersetujui dan Perintah Jualan telah dikeluarkan oleh Defendan Kedua. Lelongan Awam yang dijalankan dan pemakluman kepada Plaintif mengenai tarikh-tarikh lelongan i. Hartanah tersebut kemudiannya telah ditetapkan untuk Lelongan Awam kali Pertama pada 24/04/2014 pada harga rizab sebanyak RM1,500,000.00 namun tetapi telah ia ditangguhkan oleh Defendan Kedua kerana Defendan Kedua telah mendapati terdapat perbezaan penilaian pada harga rizab di antara pihak Penggadai dan pihak Pemegang Gadaian. Pejabat Tanah kemudiannya telah mengemukakan permohonan penilaian semula hartanah tersebut di Jabatan Penilaian dan Perkhidmatan Harta Shah Alam, Selangor. ii. Melalui surat bertarikh 26.3.2014, Plaintif telah dimaklumkan berkenaan Lelongan Awam yang dijalankan pada 24/04/2014. Lelongan Awam juga telah pun diiklankan di akhbar The Malay Mail pada 07/03/2014. 23 iii. Lelongan Awam kali Pertama telah dijalankan pada 25/09/2014 pada harga rizab sebanyak RM1,800,000.00 berdasarkan kepada Laporan Penilaian yang dikeluarkan oleh Jabatan Penilaian dan Perkhidmatan Harta Shah Alam, Selangor. iv. Melalui surat peguam Defendan Pertama bertarikh 3.9.2014, Plaintif telah dimaklumkan mengenai Lelongan Awam yang akan dijalankan pada 25/09/2014. Pengiklanan di akhbar The Malay Mail pada 08/09/2014. Lelongan Awam pada 25/09/2014 tidak berjaya kerana tiada Pembida/Pembeli. v. Lelongan Awam kali Kedua telah diadakan pada 29/01/2015 pada harga rizab sebanyak RM1,620,000.00. Tarikh lelongan awam ini telah dimaklumkan kepada Plaintif melalui surat bertarikh 02/01/2015 dan pengiklanan di akhbar The Malay Mail pada 13/01/2015. Lelongan Awam tersebut juga tidak berjaya kerana tiada Pembida/Pembeli. 24 vi. Lelongan Awam kali Ketiga telah diadakan pada 14/05/2015 pada harga rizab sebanyak RM1,458,000.00. Tarikh lelongan ini telah dimaklumkan kepada Plaintif melalui surat bertarikh 13/03/2015. Pengiklanan di akhbar The Malay Mail pada 31/03/2015. Hartanah tersebut telah berjaya dijual secara Lelongan Awam pada tarikh ini pada harga RM1,458,000.00. [24] Mahkamah ini telah juga meneliti afidavit jawapan Defendan Kedua (Kandungan 7). Kandungan 7 ini pada asasnya telah mengesahkan kebanyakan pengataan Defendan Pertama berkenaan perintah jualan dan lelongan yang dijalankan olehnya. [25] Defendan Kedua juga telah mendeposkan bahawa walaupun pinjaman perumahan tahun 1994 telah dibayar sepenuhnya oleh Plaintif, Plaintif tidak pernah pada bila-bila masa pun membuat permohonan kepada Defendan Kedua untuk membatalkan gadaian pertama. 25 [26] Defendan Kedua telah juga mengesahkan bahawa Wong telah mengemukakan kepadanya Surat Kuasa Wakil bertarikh 22.12.2012 yang memberi kuasa kepada Wong untuk mewakilinya bagi apa-apa yang melibatkan hartanah tersebut dan mengesahkan kehadiran Wong pada tarikh-tarikh siasatan. Menurut Defendan Kedua, semasa Wong hadir pada tarikh-tarikh siasatan tersebut, Wong tidak pernah pada bila-bila masa membangkitkan isu berkenaan nombor perserahan gadaian yang didakwa salah oleh Plaintif. Malah, Wong telah menyebabkan siasatan-siasatan telah ditangguhkan beberapa kali atas alasan memohon masa untuk membayar hutang pinjaman Re Financing yang tertunggak. [27] Berbalik semula kepada alasan-alasan yang dibangkitkan oleh Plaintif bagi mendapatkan perintah-perintah yang dipohon di dalam Kandungan 1. Alasan 1: Plaintif tidak pernah menerima apa-apa Notis mengenai sebarang keingkaran di dalam bayaran Pinjaman Re-Financing daripada Defendan Pertama dan hartanah tersebut telah dilelong tanpa pengetahuannya sebagai tuanpunya berdaftar. 26 [28] Plaintif telah cuba membangkitkan alasan kononnya beliau tidak pernah menerima apa-apa notis mengenai sebarang keingkaran pinjaman Re-Financing daripada Defendan Pertama dan lelongan hartanah tersebut yang dijalankan oleh Defendan Pertama adalah di luar pengetahuannya. [29] Dengan merujuk kepada kes Sykt. Kewangan Melayu Raya Bhd v Malayan Banking Bhd. [1984] 1 CLJ (Rep) 363, peguam Plaintif telah menghujahkan bahawa apabila Plaintif tidak menerima notis- notis keingkaran dan penamatan serta tidak mengetahui mengenai wujudnya keingkaran, proses-proses siasatan, perintah jualan dan lelongan awam yang dijalankan maka kesemua-kesemua notis dan proses undang-undang yang dilaksanakan terhadap hartanah tersebut adalah defektif dan tidak sah. [30] Peguam Defendan Pertama sebaliknya telah menghujahkan bahawa Defendan Pertama telah mengikuti dan mematuhi segala peruntukan undang-undang berhubung dengan penguatkuasaan hak statutorinya 27 di dalam mendapatkan Perintah Jualan dan seterusnya melelong Hartanah Plaintif tersebut. Oleh itu, Plaintif tidak mempunyai asas untuk membatalkan Perintah Jualan dan juga Lelongan Awam tersebut. Apatah lagi, Wong, anak lelaki Plaintif yang mewakili Plaintif telah mengetahui mengenai proses Lelongan Awam dan telahpun hadir pada tarikh-tarikh siasatan dan juga lelongan awam. [31] Peguam Defendan Pertama seterusnya telah berhujah bahawa di Lampiran ‘Annexure’ Gadaian juga telah meperuntukkan peruntukan keperluan penyerahan apa-apa notis-notis di bawah gadaian yang ditandatangani Plaintif di mana peruntukan Klausa 7.16 (a) telah memperuntukkan seperti berikut:- “ SECTION 7.16 SERVICE OF LEGAL PROCESS (a) The service of any Legal Process may be given by Prepaid Registered Post sent to the respective address for service of the parties hereto and such legal process shall be demed to have been duly served after the expiration of five (5) days from the date it is posted and if delivered by hand, on the day it was delivered”. 28 [32] Menurut peguam Defendan Pertama lagi di dalam kes ini adalah jelas bahawa segala surat-menyurat/notis-notis berhubung dengan lelongan awam tersebut telahpun diserahkan kepada Plaintif di alamat Plaintif di No. 10, Jalan 19/6, 46300 Petaling Jaya, Selangor dan ini boleh dirujuk kepada bukti-bukti pengeposannya yang telah dieksibitkan di dalam Kandungan 4. [33] Bagi menyokong hujahannya bahawa Defendan Pertama telah mematuhi segala peruntukan undang-undang di dalam perlaksanaan penguatkuasaan hak statutorinya, peguam Defendan telah merjuk kepada kes-kes berikut: i. Hew Hai Woon -v- Citibank Bhd [2013] 2 MLJ 278 (Mahkamah Rayuan telah memutuskan antara-lain: “As the submissions did not address the question whether it was true no notice of the land enquiry had been served on the appellant in accordance with law, it followed that the submission the land enquiry was a nullity because of the lack of notice, failed, and the order of the land administrator in the land enquiry remained valid”. 29 ii. Amanah Merchant Bank Bhd -v- Lim Tow Choon (1994) 1 MLJ 413. “Once it was established that the Notice of Demand was sent through the post in an envelope addressed to the last known place of address of the defendant, cl 17 applied. It was not necessary for the appellant to show that the AR card has been returned duly acknowledged for there to have been effective service of the notice of demand”. It is sufficient for the appellant to show tat the notice was correctly addressed, prepaid and delivered to the post office and acknowledged for service by the postal authority. Once these fact have been established the deeming provision will inevitably apply” iii. MBF Finance Bhd -v-Tiong Kieng Seng [2001] MLJU 405 “where service is effected by post, the party resorting thereto has only to show proof of posting so as to be able to rely on the presumption of service.That party must therefore show that he has correctly addressed, prepaid and delivered to the post office the letter enclosing the summons and that it has been acknowledged as received by the postal authorities”. 30 [34] Mahkamah ini telah meneliti keterangan-keterangan dokumentar yang dikemukakan oleh Defendan Pertama. Notis-notis Tuntutan dan Penamatan bertarikh 03/12/2007, 31/12/2008, 22/01/2010, 10/05/2010 dan 16/11/2010 dan 04/07/2014 (kesemua notis-notis Tuntutan dan Penamatan telah dieksibitkan di Eksibit “SS-F”, Kandungan 4) telahpun diserahkan kepada Plaintif dan Wong di alamat terakhir Plaintif yang diketahui berdasarkan kepada Carian Alamat daripada Jabatan Pendaftaran Negara (JPN) iaitu di No. 10, Jalan 19/6, 46300 Petaling Jaya, Selangor dan juga alamat surat menyurat Wong iaitu di B-12B-07 Millennium Place Condo 98, Jalan 14/1, 46100 Petaling Jaya, Selangor. [35] Manakala Borang 16D bertarikh 01/11/2011 juga di Ekshibit SS-F, Kandungan 4 telah dikeluarkan oleh Defendan Pertama telah diserahkan kepada Plaintif. [36] Mahkamah ini perlu menyatakan di sini bahawa Plaintif telah cuba menimbulkan alasan yang beliau tidak menerima notis-notis tuntutan dan penamatan serta Borang 16D tersebut kerana menurutnya Defendan Pertama telah dengan cuai menghantar notis-notis 31 tersebut ke alamat lama di No. 10, Jalan 19/6, 46300 Petaling Jaya, Selangor dan kononnya beliau tidak lagi tinggal di alamat tersebut. Untuk dakwaan itu Plaintif telah mengeksibitkan satu surat tidak bertarikh (Ekshibit “TSH-5”, Kandungan 2) yang ditandatangani oleh Wong yang ditujukan kepada Defendan Pertama memaklumkan pertukaran alamatnya dari No. 10, Jalan 19/6, 46300 Petaling Jaya, Selangor kepada B-12B-07 Millennium Place Condo 98, Jalan 14/1, 46100 Petaling Jaya, Selangor. [37] Mahkamah ini bersetuju dengan hujahan peguam Defendan Pertama bahawa pertama, surat ini adalah surat yang tidak bertarikh, maka bilakah surat ini telah ditulis dan dikemukakan kepada Defendan Pertama adalah tidak diketahui. Kedua, kalaupun ada pertukaran alamat, menurut surat “TSH-5” tersebut yang bertukar alamat surat- menyurat adalah Wong dan bukannya Plaintif. (I would like to inform you the change of my mailing and future correspondence address to the following: ..) Oleh itu, Plaintif masih lagi tinggal dan menetap di No. 10, Jalan 19/6, 46300 Petaling Jaya, Selangor berdasarkan kepada carian alamat yang diperolehi daripada Jabatan Pendaftaran Negara. Adalah tidak dipertikaikan bahawa Notis-notis tersebut telah 32 juga dihantar kepada Wong di alamat B-12B-07 Millennium Place Condo 98, Jalan 14/1, 46100 Petaling Jaya, Selangor. [38] Di samping itu segala penghantaran surat-menyurat/notis-notis yang dihantar kepada Plaintif dan Wong telah dibuktikan dengan bukti- bukti pengeposan di Eksibit “SS-F”, Kandungan 4. [39] Mengenai surat “TSH-5” pula, penerimaan dan pengetahuan Plaintif dan Wong mengenai surat-menyurat dan notis-notis adalah tidaklah boleh dipertikaikan oleh Plaintif kerana Wong telahpun menghadiri setiap kali tarikh Siasatan diadakan dan dijalankan di Pejabat Tanah Petaling, Selangor iaitu pada 31/01/2012, 27/03/2012, 28/08/2012, 18/12/2012, 14/05/2013 dan 20/09/2013 di mana Perintah Jualan telah diberikan oleh Pejabat Tanah sehingga perintah jualan dikeluarkan pada 20/09/2013. Adalah tidak dipertikaikan bahawa siasatan di hadapan Defendan Kedua telah ditangguhkan sebanyak lima (5) kali di atas permohonan Wong yang kononnya akan menyelesaikan segala bayaran-bayaran yang tertunggak bagi memulihkan keingkarannya dan Plaintif terhadap pinjaman Re Financing tersebut. 33 [40] Plaintif semestinya mempunyai pengetahuan berkenaan proses siasatan dan lelongan yang dijalankan kerana Wong telah menghadiri siasatan-siasatan di Pejabat Tanah dan kehadirannya adalah juga bagi mewakili Plaintif berdasarkan Surat Kuasa Wakil bertarikh 2.12.2012 (Eksibit “SS-K”, Kandungan 4). Surat Kuasa Wakil tersebut jelas dan nyata memberikan kuasa kepada Wong melaksanakan segala urusan yang dinyatakan di perenggan 1 sehingga 16 di dalam hal berkaitan hartanah tersebut bagi pihak Plaintif. [41] Adalah menjadi dapatan Mahkamah ini bahawa kehadiran Wong pada setiap kali siasatan diadakan dan dijalankan, kesimpulan yang tidak dapat dielakkan adalah; surat-menyurat dan notis-notis keingkaran dan penamatan dan notis-Notis Siasatan/lelongan awam tersebut sememangnya telah sampai kepada Plaintif dan Wong. Segala proses berkaitan perintah jualan dan lelongan adalah sememangnya di dalam pengetahuan Plaintif dan Wong kerana Plaintif sendiri telah memberikan kuasa kepada Wong untuk mewakili diriya di dalam segala hal melibatkan hartanah tersebut. 34 [42] Kini Plaintif cuba berdalih dengan mengatakan bahawa tujuan beliau menandatangani Surat Kuasa Wakil tersebut hanyalah memberi Wong kuasa untuk menjual hartanah tersebut kepada pihak ketiga dan bukan untuk tujuan menghadiri siasatan di Pejabat Tanah kerana Plaintif tidak mengetahui adanya proses lelongan terhadap hartanah tersebut. [43] Mahkamah ini bersependapat dengan peguam Defendan Pertama bahawa alasan Plaintif yang Wong tidak memaklumkan kepada Plaintif berkenaan surat-menyurat dan notis-notis keingkaran dan penamatan dan notis-notis siasatan/lelongan adalah tidak timbul sama sekali. [44] Di samping itu, setelah hartanah tersebut ditetapkan untuk Lelongan Awam sebanyak tiga (3) kali atas alasan-alasan yang telah dinyatakan pada awal tadi, dan hartanah tersebut telah berjaya dijual pada lelongan yang dijalankan pada 14/05/2015 harga RM1,458,000.00, Wong yang juga mewakili Plaintif telah hadir pada tarikh 14/05/2015 tersebut dan telah menyaksikan sendiri proses 35 lelongan awam tersebut yang berlangsung di Pejabat Tanah Daerah Petaling, Selangor. [45] Adalah tidak dipertikaikan bahawa pengiklanan-pengiklanan mengenai Lelongan Awam ke atas hartanah tersebut di dalam akhbar The Malay Mail pada 08/09/2014, 13/01/2015 dan 31/03/2015 telah dibuat oleh Pelelong sepertimana yang diperuntukkan di dalam undang-undang. [46] Berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah bahawa dakwaan Plaintif mengenai ketidakterimaan surat-surat dan notis-notis berhubung dengan perintah jualan dan lelongan yang dijalankan dan proses undang-undang yang telah diambil dan dilaksanakan adalah di luar pengetahuannya adalah tidak benar sekali. Dakwaan Plaintif ini merupakan penafian kosong belaka dan ianya adalah alasan yang telah direka-reka Plaintif. Alasan ii. Defendan Pertama telah mendapatkan Perintah Jualan dan melelong hartanah tersebut berdasarkan gadaian yang salah iaitu dengan No. Perserahan 3498/1994 (gadaian pertama 36 yang telah selesai) dan bukannya ke atas gadaian dengan No. Perserahan 4197/2005 (masih lagi sah dan terpakai) [47] Benarkah dakwaan Plaintif bahawa Defendan Pertama telah mendapat Perintah Jualan dan seterusnya melelong hartanah tersebut berdasarkan gadaian pertama yang telah selesai dibayar sepenuhnya pada tahun 2006? Berasaskan dakwaan ini juga Plaintif telah mengatakan bahawa tidak ada keingkaran yang wujud di pihaknya. [48] Untuk itu, Mahkamah ini perlu merujuk kepada Borang 16D KTN berserta dokumen-dokumen yang berkaitan yang difailkan oleh Defendan Pertama ke Pejabat Tanah Petaling, Selangor pada 08/12/2011 bagi mendapatkan Perintah Jualan hartanah tersebut. Di Eksibit “SS-B” dan “SS-C”, Kandungan 4 adalah Borang-Borang Gadaian 16A bagi Gadaian Pertama dan Gadaian Kedua. Eksibit “SS-B” adalah Gadaian Pertama yang dilaksanakan melalui No. Perserahan 3498/1994, manakala Eksibit “SS-C adalah Gadaian Kedua yang dilaksanakan melalui No. Perserahan 4197/2005. 37 [49] Defendan Pertama tidak menafikan bahawa gadaian pertama sudah tidak lagi terpakai kerana pinjaman perumahan telahpun diselesaikan sepenuhya pada tahun 2006. Gadaian yang boleh dikuatkuasakan oleh Defendan Pertama sekiranya berlaku keingkaran terma-terma pinjaman Re Financing adalah Gadaian Kedua. [50] Merujuk kembali kepada Notis-notis Tuntutan dan Penamatan bertarikh 03/12/2007, 31/12/2008, 22/01/2010, 10/05/2010 dan 16/11/2010 dan 04/07/2014 (kesemua notis-notis Tuntutan dan Penamatan serta bukti pengeposan adalah di Eksibit “SS-F”), Mahkamah ini bersetuju dengan hujahan peguam Defendan Pertama bahawa notis-notis tersebut adalah merujuk kepada pinjaman Re Financing kerana notis-notis tersebut merujuk kepada Pinjaman Overderaf dan Agreement No. 514561301354 dan juga Agreement No. 41456110403 (Sila lihat nombor-nombor agreement di perenggan 15 alasan penghakiman berkenaan pinjaman Re Financing). Nombor kedua-dua agreement tidak ada kena mengena pun dengan pinjaman 1 yang diberikan kepada Plaintif. Oleh itu, 38 tidak syak lagi notis-notis tersebut sememangnya telah dikeluarkan kepada Plaintif dan Wong atas tuntutan pembayaran dan kegagalan pembayaran wang pinjaman Re Financing oleh Plaintif dan Wong. Lanjutan daripada notis-notis tersebut, Defendan Pertama telah seterusnya mengeluarkan kepada Plaintif Borang 16D bertarikh 01/11/2011 yang mana di dalam notis tersebut juga tertera nombor- nombor Agreement No. 514561301354 dan juga Agreement No. 414561104031 yang merujuk kepada pinjaman Re Financing. Daripada nombor-nombor agreement ini Plaintif sendiri akan mengetahui bahawa keingkaran terma-terma pinjaman adalah terhadap pinjaman Re Financing dan langsung tidak berkait dengan pinjaman 1 yang diberikan pada tahun 1994. Bagi Mahkamah ini, Borang 16D bertarikh 1.11.2011 ini adalah sangat jelas merujuk kepada akaun-akaun pinjaman Re Financing dan ianya langsung tidak menimbulkan sebarang keraguan. Di dalam Jadual Notis Borang 16D yang telah di hantar ke Pejabat Tanah Daerah Petaling, Selangor juga telah tertera nombor perserahan kedua-dua gadaian tersebut. 39 [51] Mahkamah ini bersetuju dengan peguam Defendan Pertama bahawa walaupun surat-surat daripada Pejabat Tanah Daerah Petaling, Selangor bertarikh 24/12/2011, 17/02/2012, 30/07/2012, 03/12/2012 dan 05/08/2013 hanya tertera gadaian pertama sahaja, akan tetapi surat-surat daripada Pejabat Tanah Daerah Petaling, Selangor yang berikutnya bertarikh 24/01/2014 dan surat bertarikh 04/07/2014 tertera kedua-dua gadaian pertama dan kedua. Malahan Notis-Notis Iklan Lelongan bertarikh 07/03/2014 dan juga Perisytiharan Jualan juga tertera kedua-dua gadaian tersebut. [52] Oleh yang demikian, adalah menjadi dapatan Mahkamah ini bahawa berdasarkan semua dokumen-dokumen yang telah dirujuk di atas, Plaintif tidak boleh mengatakan bahawa perintah jualan yang diperolehi Defendan Pertama dan lelongan awam yang dijalankan adalah berdasarkan kepada gadaian yang salah. [53] Di samping itu juga, Mahkamah ini bersependapat dengan peguam Defendan Pertama bahawa isu gadaian salah dan menimbulkan kekeliruan di pihak Plaintif adalah tidak timbul sama sekali kerana 40 kedua-dua gadaian tersebut adalah atas hartanah yang sama iaitu hartanah tersebut yang terkandung di HS(M) 12298, PT 46, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor dan bukanlah hartanah yang lain. Di sini Plaintif sendiri telah mengetahui bahawa Gadaian Pertama ke atas hartanah tersebut tidak lagi berkuatkuasa apabila bayaran penuh pinjaman 1 telahpun diselesaikan pada tahun 2006. [54] Justeru itu, bagi Mahkamah ini terteranya kedua-dua nombor perserahan Gadaian Pertama bersekali dengan nombor perserahan Gadaian Kedua tidak langsung mencacatkan perintah jualan dan menjadikan penguatkuasaan hak statutori Defendan Pertama terhadap Gadaian Kedua itu tidak sah bagi membolehkan Mahkamah ini membatalkan Perintah Jualan dan juga lelongan awam yang telah dijalankan pada 14/05/2015. Walhal kesemua dokumen-dokumen (notis-notis tuntutan dan penamatan, Notis Borang 16D dan notis- notis siasatan) merujuk kepada pinjaman Re Financing yang telah dijamin oleh Gadaian Kedua iaitu gadaian yang masih lagi sah dan terpakai. 41 [55] Bagi Mahkamah ini, Plaintif tidak langsung dikelirukan ataupun disalah arahkan (misled). Justeru itu, adalah menjadi dapatan Mahkamah ini bahawa perintah jualan dan lelongan awam yang telah dijalankan pada 14/05/2015 tidak boleh dipersoalkan akan keteraturannya. Perintah Jualan dan lelongan awam yang dijalankan pada 14.5.2015 tersebut adalah sah dan teratur (regular) di sisi undang-undang. Alasan iii. Serahan Notis 16D KTN kepada Plaintif adalah tidak sah kerana Notis 16E KTN tidak diserahkan kepadanya [56] Plaintif telah menyatakan bahawa memandangkan pinjaman Re- Financing yang dipohon olehnya dan Wong adalah melibatkan Gadaian Pihak Ketiga (Third Party Charge), maka adalah menjadi dakwaannya bahawa segala notis-notis menurut undang-undang seperti Notis Siasatan, Notis 16D dan Notis 16E KTN hendaklah diserahkan secara kediri kepadanya. 42 [57] Adalah dihujahkan bagi pihak Plaintif bahawa kegagalan Defendan Pertama menyerahkan secara kediri Notis 16E kepada Plaintif menjadikan penyerahan Notis 16D kepada Plaintif tidak sah. Untuk hujahan, peguam Plaintif telah merujuk sekali lagi kepada Sykt. Kewangan Melayu Raya Bhd v Malayan Banking Bhd. [1984] 1 CLJ (Rep) 363. [58] Mahkamah ini merujuk kepada Seksyen 254 (1) dan (3) KTN yang memperuntukkan: “(1) Where, in the case of any charge, any such breach of agreement as is mentioned in sub-section (1) of Section 253 has been committed for a period of at least one month or such alternative period as may be specified in the charge which shall not be less than one month, the chargee may serve on the chargor a notice in Form 16D…..” (3) If at the expiry of the period specified in any such notice the breach in question has not been remedied- 43 (a)……….. (b) the chargee may apply for an order for sale in accordance with the following provisions of this Chapter” [59] Di dalam kes Bank Islam Malaysia Berhad v Pasaraya Peladang Sdn Bhd [2004] 7 MLJ 355 telah diputuskan bahawa: “Form 16D of the NLC may be used whether or not the principal sum was payable on demand. Therefore, the issuance of the statutory demand by the plaintiff in Form 16D of the NLC was valid”. [60] Bagi Mahkamah ini, Plaintif di dalam kes ini sememangnya telah gagal untuk menjelaskan bayaran ansuran bulanan ke atas pinjaman Re-Financing, maka atas kegagalan terma pinjaman Re-Financing tersebut, Defendan Pertama sebagai pemegang gadaian berhak mengeluarkan Notis 16D kepada Plaintif menuntut Plaintif memulihkan atau meremedi keingkaran tersebut. Tuntutan untuk pemulihan keingkaran ini boleh dituntut tidak kira samada tuntutan tersebut adalah melibatkan tuntutan prinsipal atau pun tidak. 44 Seterusnya, sekiranya kegagalan tersebut berterusan untuk satu tempoh masa yang telah ditetapkan di mana keingkaran itu tidak dipulihkan oleh Plaintif, maka Defendan Pertama berhak untuk mendapatkan Perintah Jualan ke atas hartanah tersebut. (Sila lihat : i. Mary Michael –v- United Malayan Banking Corporation Bhd [1971] 1 MLJ 172 “…….in this case although the principal sum was payable on demand, the chargee was seeking to recover also the interest which had become due and payable and therefore the notice in Form 16D was the appropriate notice. In the circumstances the learned trial judge was right in making the order for sale” “…….It is to be observed that a notice in Form 16D applies to any charge, so that it can validly be used even in the case of a charge where the principal sum is payable on demand, even though Form 16E is specially designed for this purpose. This would be particularly true of a charge where the principal sum bears interest and the chargor is in default of payment of interest as stipulated in the charge. If there is no interest payable on the principal sum it is open to the chargee to give a notice 45 outside the provisions of the Code either orally or in writing and, in the event of non-compliance with this notice, then to issue a notice in Form 16D on the ground that the chargor is in default. In other words, in the case of a charge where the principal sum is payable on demand and there is also a stipulation as regards payment of interest thereon, the chargee can apply for sale of the charged land either on the ground that the principal sum secured by the charge is payable on demand or on the ground that there has been a default in payment of interest. In either case a notice in Form 16D would be a valid notice ………...” ii. HSBC Bank Malaysia Berhad –v- Overseas Industries Sdn Bhd [2008] MLJU 392 “………In our view, whether a notice of default with respect to a charge or charges in Form 16D is bad in law would depend on whether the chargor has been prejudiced or misled by any defect in the notice so as to render the granting of the order for sale unjust, and this in turn must necessarily depend on the circumstances of each particular case”. [61] Di dalam hal ini Mahkamah ini berpandangan bahawa Notis 16D yang dikeluarkan Defendan tidaklah bertentangan dengan mana- 46 mana peruntukan undang-undang, maka serahan Notis 16D tersebut ke atas Plaintif adalah sah dan teratur. Alasan iv: harga rizab lelongan hartanah tersebut adalah tidak adil dan tidak menasabah kerana ianya di bawah harga pasaran [62] Isu ini tidak lagi menjadi isu kerana rayuan Plaintif terhadap Defendan Kedua adalah di luar tempoh had masa. Walau apapun alasan Plaintif adalah pengataan semata-mata yang tidak disokong oleh mana-mana keterangan dokumentar. D. Hak dan kepentingan Pembida/Pembeli hartanah tersebut [63] Hartanah tersebut telah berjaya dijual pada 14/05/2015 pada harga RM1,458,000.00 kepada Pembida/Pembeli iaitu Lim Yoke Mei (No. K/P: 840804-14-5072) seorang warganegara Malaysia yang cukup umur dan beralamat di No. 25 BU 11/1, Bandar Utama, 47800 Petaling Jaya, Selangor. Wong yang mewakili Plaintif telah hadir di Pejabat Tanah Daerah Petaling, Selangor dan menyaksikan sendiri proses lelongan awam tersebut dijalankan. 47 [64] Di dalam kes ini Pembida/Pembeli tersebut telahpun membayar wang sebanyak RM145,8000.00 (10% daripada harga jualan) dan pembelian pembida ini adalah di dalam satu proses lelongan awam yang dijalankan secara sah dan yang telah juga mematuhi segala peruntukan undang-undang. Oleh itu, Pembida/Pembeli tersebut adalah merupakan bona fide Purchaser for value without notice dan mempunyai pemilikan ekuiti (equitable ownership) yang sah ke atas hartanah tersebut tersebut. Di dalam keadaan ini, hak dan kepentingan Pembida/Pembeli sebagai bona fide Purchaser for value without notice perlulah dikekalkan dan dipelihara oleh Mahkamah ini. [65] Berdasarkan alasan-alasan di atas, Mahkamah ini menolak Kandungan 1 Plaintif dengan kos sebanyak RM3000.00 masing- masing kepada Defendan Pertama dan Defendan Kedua. 48 .................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 17 Oktober 2016 Peguam Plaintif - Tetuan Iskandar Putra & Izral Iskandar Putra Peguam Defendan Pertama - Tetuan J.S. Pillay & Mohd Haaziq Yang Boon Hang Peguam Defendan Kedua - Kamar Penasihat Undang-Undang Negeri Selangor Khairul Nizam

Tika 2.6.0

WA-24C-38-06/2016

PLAINTIF PWC Bina Sdn Bhd DEFENDAN 1. Kerajaan Malaysia; 2. United Overseas Bank (Malaysia) Sdn Bhd

14/10/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=323a68e9-3fe8-48d9-a244-ae1c77931693&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-38-06/2016 In the matter of PWC Bina Sdn Bhd (Company No.: 491422-U) And In the matter of ILAJ HomeConstruction Project in Kuala Lumpur And In the matter of Bank Guarantee No. 248FG0912160 And In the matter of Judgment of the High Court of Malaya dated 25.3.2016 (Suit No: 24NCVC-163-01/2015) And In the matter of Notice of Appeal by the Government of Malaysia dated 18.4.2016 for Suit No: 24NCVC-163- 01/2015 And 2 In the matter of Order 7 rule 2 Rules of Court 2012 And In the matter of Order 29 and 92 Rule 4 Rules of Court 2012 BETWEEN PWC BINA SDN BHD (COMPANY NO: 491422-U) ... PLAINTIFF AND 1. KERAJAAN MALAYSIA 2. UNITED OVERSEAS BANK (MALAYSIA) SDN BHD ....DEFENDANT THE JUDGMENT OF YA LEE SWEE SENG [1] The Plaintiff here finds itself in an unenviable situation. It is the subcontractor of one SD Com Sdn Bhd ("SD Com"). SD Com had on 1 April 2013 been awarded a contract by the 1st Defendant ("D1"), the Government of Malaysia, through Jabatan Kerja Raya Malaysia ("JKR") for 3 the project to construct ILAJ Home in Mukim Bandar, Kuala Lumpur ("the Project"). [2] SD Com, in turn, had appointed the Plaintiff as its subcontractor for the entire Project by an agreement dated 14 May 2013. The entire work for the construction of the Project was to be done by the Plaintiff. D1 however had, pursuant to its contract with SD Com, made an advance payment of RM2,270,237.43 to SD Com. In return SD Com was required to furnish a Bank Guarantee ("BG") to secure the repayment of this sum. [3] The BG was taken from the 2nd Defendant ("D2") United Overseas Bank (Malaysia) Bhd ("UOB Bank") by the Plaintiff on behalf of SD Com. The BG no. 248FG092160 ("BG") was issued on 21 June 2013 and expired on 8 October 2014. It was extended on 20 March 2014 and was to expire on 31 January 2015. [4] On 23 January 2015 D1 had issued a Notice to unilaterally terminate the Project based on reasons that could not be avoided. Subsequent to the unilateral termination of SD Com as the main contractor, D1 made a call on the BG on 26 January 2015; five (5) days before the expiry of the BG. 4 [5] The Plaintiff rushed to Court with an urgent application (Enclosure 3A) filed under OS 24NCvC-163-01/2915 ("1st OS"), seeking inter alia an injunction to restrain D1 from calling on the BG pending the disposal of the OS (Enclosure 1). The matter was heard ex-parte and the injunction prayed for was granted on 30 January 2015. [6] At the inter-parte hearing, the ex-parte injunction granted was affirmed as there are clear serious questions to be tried and that D1's conduct was unconscionable in the circumstances of the case. Against that decision made on 23 March 2015, D1 who is the Government of Malaysia, had appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on 4 February 2016. [7] At the hearing of the OS proper, the High Court held that the call on the BG by D1 on 26 January 2015 was unconscionable and granted a declaration to that effect. Against that declarative order D1 had appealed to the Court of Appeal and the appeal has not been disposed of yet. Problem [8] Whilst the appeal in the 1st OS is still pending in the Court of Appeal and despite the declaratory order by the High Court given by Justice Hue 5 Siew Kheng, D1 made another call on the BG on 26 May 2016; more than a year after the expiry of the BG on 31 January 2015. [9] The Plaintiff, baffled and bewildered by what it considered as a brash act of D1, met up with the representatives of D2 to discuss the matter. D2 informed the Plaintiff that they will be releasing the payment in the BG to D1 unless restrained by a Court order. Prayers [10] The Plaintiff once again, rushed to Court, with the present Originating Summons seeking inter alia: a) An interim injunction against D1 from calling on the BG until the disposal of all claims, appeal between the Plaintiff, the Government and SD Com; b) An interim injunction against D2 from paying under the BG till the disposal of all claims, appeal between the Plaintiff, the Government and SD Com; c) A declaration that D1's action in calling for the BG on 26 May 2016 is unconscionable; 6 d) A declaration that the BG had expired and the sum paid for the BG to be reverted to the Plaintiff; and e) An order that the Defendant returned the Plaintiff the original copy of the BG. [11] On 7 June 2016 when the Plaintiff's counsel, Mr C K Foong, implored upon this Court to hear the Application on an urgent ex-parte basis, this Court had granted an ad-interim injunction with respect to prayers (a) and (b) above, having been satisfied that the matter was of sufficient urgency as D2 might be releasing the sum secured by the BG and that there is no prohibition against the grant of an ad-interim injunction against D1. [12] When the matter came up again on the next return date on 13 June 2016, the learned Senior Federal Counsel ("SFC"), Encik Hanir Ahmad, requested for time to file an affidavit to oppose the Application. This Court then fixed 22 July 2016 to hear the OS in Enclosure 1 as the prayers in Enclosure 11 are a subset of the prayers in Enclosure 1. [13] The ad-interim injunction granted was extended until the next hearing date of 22 July 2016. 7 Principles Whether there is any prohibition against granting an ad-interim injunction against the Government [14] Order 29 Rule 1 of the Rules of Court 2012 ("ROC") provides: "An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party’s originating process, counterclaim or third party notice, as the case may be." [15] Section 51(1) of the Specific Relief Act 1950 states as follows: (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure. [16] The locus classicus on the law and guiding principles on interlocutory injunction is the House of Lord's case of American Cynamid Co v Ethicon Ltd [1975] 1 All ER 504 which have been adopted and applied time and again in our Courts. 8 [17] The principles propounded in the House of Lord were adopted and applied in the Court of Appeal case of Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1995] 1 MLJ 193. Keet Gerald (supra) was recently reaffirmed in the Federal Court case of AV Asia Sdn Bhd v Measat Broadcast Networks Systems Sdn Bhd [2014] 1 CLJ 821. [18] In essence, the Court in granting the interlocutory injunction pursuant to Order 29 Rule 1 of the ROC must consider the factors as set out below: (i) whether the claim against the Defendant on the facts before the Court discloses a bona fide serious issue to be tried; (ii) the Court must then proceed to consider the balance of convenience between parties, namely, whether the harm would be greater in granting the injunction or by its refusal and arrive at a finding which party would suffer greater injustice; and (iii) whether damages is an adequate remedy. [19] I agree with learned counsel for the Plaintiff that although s 54(d) of the Specific Relief Act 1950 provides in general that an injunction cannot be granted to interfere with the public duties of the Government, s 29 of the Government Proceedings Act 1956 does not prohibit this court to grant 9 temporary or interlocutory injunctions against the Government. S 54(d) of the Specific Relief Act 1950 is under Chapter X under "OF PERPETUAL INJUNCTIONS" whereas s 51 which comes under Chapter IX and refers to injunctions generally draws a distinction between temporary injunctions and perpetual injunctions. It provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. [20] S 29(1)(a) of the Government Proceedings Act 1956 reads as follows: "29. (1) In any civil proceedings by or against the Government the court shall, subject to this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that- (a) where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties;" (emphasis added) [21] If there has been doubts in the past as to whether an interlocutory or interim injunction lie against the Government, this has been clarified by the 10 Court of Appeal in Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122, where Gopal Sri Ram JCA (later FCJ) held at page 134, para c-d as follows: “It has been settled since at least 1978 that s. 29 of the 1956 Act does not prohibit the grant of temporary injunctions against the Government. In Tengku Haji Jaafar & Anor v Government of the State of Pahang [1978] 2 MLJ 105 it was held that the section “does not take away therefore the right of the court to grant an interlocutory injunction”. This court in Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd [2003] 3 CLJ 378 CA (refd) treated the ratio in Tengku Haji Jaafar & Anor v. Government of the State of Pahang as settled law. Although the Federal Court reversed our decision in that case on the constitutional point, our judgment on this point was approved sub silentio. Accordingly, it is too late in the day to argue that s. 29 bars the grant of an interlocutory or even an interim injunction against the Government.” [22] The Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321 at page 347 & 348 at para 71 has given tacit endorsement to this approach: 11 “[71] In that case the Court of Appeal held, inter alia, that the courts have jurisdiction to grant interim and permanent injunctions against any servant of the Government. It also held that it is too late in the day to argue that s. 29 of the GPA bars the grant of an interlocutory or even an interim injunction against the Government. That is not the issue before us, as such I would not venture to say anything more on this save that the courts have moved away from the traditional stand that no order of injunction may be granted against the Government.” (emphasis added) [23] This Court therefore was satisfied that there was no prohibition against the grant of an ad-interim injunction against the Government of Malaysia, and more so when the status quo needs to be preserved pending the disposal of the Application inter-parte or pending the hearing of the main action. At the hearing of the main action, no matter how justified the injunction is, the Court may only grant a declarative order declaring of the rights of the parties. [24] Learned SFC submitted that by virtue of Sec 29(2) Government Proceeding Act, the Court cannot issue an interim injunction against D1. He referred to Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, where Salleh Abas LP stated as p. 19: 12 “... the issue of the interim injunction ... is absolutely contrary to the express words of Section 29 of the Government Proceedings Ordinance 1956, as it has in effect indirectly restrained the government...” [25] He also referred to Superintendent of Lands and Surveys Kuching Division & Ors v Kuching Waterfront Development Sdn Bhd [2009] 5 MLJ 607 where the Court of Appeal stated at p. 614: “[10] ... Even though the High Court has the discretion to grant it (i.e injunction), s 29 of the GPA does not permit the granting of any injunction against the government, and likewise s 54 of the Specific Relief Act has the same bar for any department of any government in Malaysia ... At p. 617 – 618: “[19] Needless to say the words of s 29(1)(a) of the GPA are quite clear and there is no reason to depart or whittle away what has been built into it. In Lim Kit Siang v United Engineers (M) Bhd & Ors [1987] 1(2) CLJ 195, the Supreme Court affirmed the view of the High Court judge as regards the express prohibition in s 29, though not the extension of its scope ...” 13 [26] Learned SFC further submitted that the principle again was affirmed recently by the Court of Appeal in Tan Bun Teet & Ors v Menteri Sains, Teknologi dan Inovasi Malaysia & Ors [2013] 2 CLJ 1115, Azahar Mohamed JCA (now FCJ) stated at p. 1117: “(3) ... Further, an injunction, interim/interlocutory or permanent, could not be granted against the government under s. 29 of the Government Proceedings Act 1956 (‘GPA’) and s. 54 of the Specific Relief Act 1950 (‘SRA’) (Lim Kit Siang v United Engineers (M) Bhd). If the relief sought for was granted, this would interfere with the public duty of the second respondent under the AELA and as such, s. 29 of the GPA protects the second respondent, being a public authority, from any form of injunctive orders.” [27] The learned SFC concluded that the above decisions clearly stated that even interim injunction cannot be issued against D1 and hence the declaration does not prohibit D1, from calling on the BG. However the Court of Appeal on an appeal from the High Court's decision on the 1st OS where the interim injunction is concerned, had dismissed the appeal of D1. It would seem that at the Court of Appeal level there is a divergence of views as to whether an interim injunction may be granted against the 14 Government or that it may only be granted at the interim stage but not as a final relief. [28] Where there is a conflict of 2 decisions of the Court of Appeal, the High Court is free to follow either one. His Lordship Abdul Aziz J (later JCA) in Yap Piew Chuan v. Araca Enterprise Sdn Bhd [1998] 2 CLJ 234, at 242-243, as follows: "As regards the affidavits, there are two conflicting pronouncements by the Court of Appeal on the question. In Perbadanan Nasional Insurance Sdn. Bhd. v. Pua Lai Ong [1996] 3 CLJ 321, the Court of Appeal, after considering a number of High Court decisions, confirmed the decision in Wing Tiek Holdings Bhd. v. Yong Chee Thiam & Anor [1994] 1 LNS 215; (to delete) [1994] 3 MLJ 379 that O. 32 r. 13(2)(b) applies to the affidavit in reply in a summary judgment application. In Structural Concrete Sdn. Bhd. & 3 Ors. v. Wing Tiek Holdings Berhad [1997] 1 CLJ 300; (to delete) [1997] 1 AMR 589, the Court of Appeal adopted the observation of the learned judge in PB Securities Sdn. Bhd. v. Abdul Rashid bin Mohamed [1994] 3 CLJ 209; (to delete) [1994] 2 AMR 33: 1694 to the effect that O. 32 r. 13(2) does not apply to the procedure for summary judgment. In view of the conflicting decisions, I shall adhere to my decision in Pelasari Sdn. 15 Bhd. v. Reebok Sdn. Bhd. & Anor in Guaman Sivil No. S3-22-303- [1994] (unreported), which I delivered on 18 July 1995, in which, after considering the conflicting High Court decisions in the Wing Tiek Holdings and the PB Securities cases, and giving my own reasons, I decided that O. 32 r. 13(2)(b), does not apply to affidavits in reply in O. 14 proceedings.". [29] As there is a conflict of decisions on this point, this High Court is at liberty to follow that which would yield a just and fair solution while awaiting the hearing of the final reliefs depending on the exigencies of each case and whether the conduct of the government has been egregious. This is one case where an ad-interim injunction ought to be given pending the hearing of the OS filed and the final reliefs claimed. [30] The Plaintiff here conceded that whilst a perpetual injunction may not be granted against the Government in the final reliefs prayed for, this Court may nevertheless grant a declaration in lieu of a perpetual injunction. Indeed the Plaintiff had only prayed for in the final reliefs a declaration that the second call on the BG by D1 is unconscionable and for consequential order that the BG be returned to the Plaintiff, having been procured by funds furnished by the Plaintiff. 16 Whether it would be unconscionable for the Government to make another call on the BG after a previous Court has declared that the first call is unconscionable [31] The Federal Court has placed beyond peradventure the proposition of law that unconscionability is a ground to restrain a beneficiary from calling on a BG as separate from fraud. In Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Company Sdn Bhd [2012] 4 MLJ 1, the Federal Court speaking through his Lordship Hamid Embong FCJ, endorsed the approach taken by the Court of Appeal as follows: “[17] The Court of Appeal used the following tests and principles in coming to its conclusion, in determining the issue at hand as found in the following passages from its judgment: (i) The principle concerning ‘unconscionability’ was initially propounded by Lord Denning in the case of Lloyds Bank v Bundy [1975] QB 326 where it was held that unconscionable transaction between parties may be set aside by the court of equity. This ‘unconscionable’ category is said to extend to all cases where unfair advantage has been gained by an unconscientious use of power by a stronger party against a weaker (see also Halsbury’s Law of England, (3rd Ed), Vol 17 [1956] at p 682). 17 (ii) On an application for relief against unconscionable conduct, the court looks to the conduct of the party attempting to enforce, or retain benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so (see Commercial Bank of Australia Ltd v Amadio and Another [1983] 46 ALR 402). (iii) In the Singapore High Court, Lai Kew Chai J in the case of Min Thai Holdings Pte Ltd v Suniable Pte Ltd & Anor [1999] 2 SLR 368 opined that ‘the concept of unconscionability involves unfairness, as distinct from dishonesty or fraud, or conduct so reprehensible or lacking in good faith that a court of conscience would either restrain the party or refuse to assist the party’. (iv) It is not possible to define ‘unconscionability’ other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute ‘unconscionability’ would have to depend on the facts of each case. This is a question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization (see Dauphin Offshore Engineering and Trading Pte Ltd v The Private Office of HRH Sheikh Sultan bin 18 Khalifa bin Zayed Al-Nahyan [2000] 1 SLR 657; and Shanghai Electric Group Co Ltd v PT Merak Energi Indonesia [2010] 2 SLR 329) (v) Based on the above considerations, we are of the view that there is no simple formula that would enable the court to ascertain whether a party had acted unconscionably in making a call on an on- demand performance bond or bank guarantee. In the final analysis, whether or not ‘unconscionability’ has been made out is largely dependent on the facts of each case. In every case where ‘unconscionability’ is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith. (vi) In Bocotra Construction Pte Ltd v AG (No. 2) [1995] 2 SLR 733, the Singapore Court of Appeal, stated that ‘a higher degree of strictness applies, as the applicant will be required to establish a clear case of fraud or unconscionability in the interlocutory proceedings. It is clear that mere allegations are insufficient’.” (emphasis added) 19 [32] With respect to the threshold test of a seriously arguable case, the Federal Court in Sumatec Engineering (supra) explained as follows: “[39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a ‘strong prima facie case’ was utilized by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish ‘unconscionability’ there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of ‘unconscionability’ which would basically mean establishing a strong prima facie case. In other words, the respondent has to place sufficient evidence before the court so as to 20 enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of ‘unconscionability’ being committed by the beneficiary (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of ‘unconscionability’ should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man.” (emphasis added) [33] Applying the above test of unconscionability to the facts of this case, I would say that as a High Court in the 1st OS had declared that D1's call on the BG is unconscionable, it is not open for D1 to then again make another call on the BG as they did here. No Courts, especially a superior court, would act in vain. An order of the Court, even if it be wrong, must be complied with until it is set aside or stayed for the time being. Otherwise there would be chaos and anarchy. Ours is a government of laws and the decrees of a Court cannot be breached with impunity. No one is above the law and it applies equally to all whether they be the Government of the day or its subjects. [34] The learned SFC submitted that the declaration granted by the High Court in the 1st OS does not prohibit the D1 from calling on the BG. He stressed the fact that there is nothing in the order of the High Court 21 prohibiting D1 from calling on the BG. The learned SFC further extrapolated by arguing that the finding of the High Court is not to be construed as a prohibition or injunction as it will go against the settled law that no injunction can be issued against the Government. He referred to Section 29(2) Government Proceeding Act 1956 which reads: (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government. [35] He further argued that the above statutory provision does not just prohibit any injunction against government but it clearly stated any order in the effect of granting the injunction would also be prohibited. He then drove home what is the inexorable conclusion which is that if the said declaration is to be construed as prohibiting D1 from calling on the BG, it will be caught by this provision. He concluded on a confident note that the declaration was not ordered with the intention to prohibit or have the effect of an injunction against the Government. 22 [36] I must be pardoned for not being able to follow the logic of that line of argument. Surely the learned SFC is not suggesting that the declaration that the call on the BG is unconscionable has no effect whatsoever on D1. If that be so, then the learned SFC is in effect saying that whenever the Government is unhappy with a declaratory order, they will just have to do the very same act again in defiance of the declaratory order and there is nothing that could be done to prevent it for there can be no injunction against the Government. That would bring the order of the Court into disrepute as it now can be disregarded with impunity. [37] The learned SFC underscored the fact that a declaratory judgement is issued for the purpose of declaring a right and nothing more. He referred to the Federal Court case of Pengarah Tanah Galian dan Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, where Raja Azlan Shah Ag CJ Malaya (as His Royal Highness was then) stated at p. 149: “Secondly, all that a declaration does is to declare the rights of the parties, and the effect of making a declaration would be that it would give the Land Executive Committee an opportunity of having second thoughts at the problem” 23 [38] Indeed Suffian LP anticipated the question that would be raised by many and answered it astutely at pp 146-147 as follows: "Question 2 After holding that the Committee does not have the power it claims, should this court order it to approve the developer's applications but leave intact its freehold title? I do not think so. As was said by Lord Greene M.R. at page 685 in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 685, the power of a court to interfere in these planning matters is not that of an appellate authority to override a decision of the approving authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the approving authority has contravened the law by acting in excess of the powers which Parliament has confided in it. This statement was cited with approval by Lord Jenkins at page 521 in Fawcett Properties v Buckingham County Council [1960] 3 All ER 503. 24 I would therefore agree with my brother Raja Azlan Shah F.J. that these applications should be remitted for reconsideration by the Land Executive Committee in light of the law set out in this judgment. In reconsidering this matter, it is hoped that the Committee will bear in mind that, in our view, the letter of March 22, 1976, is not a mere letter containing counter-proposals, as contended by its counsel before us, but conveyed the Committee's decision approving the developer's applications, subject to the conditions set out therein, and that it is now too late for it to contend that the applicant had not complied with section 136(1)(b) of the Code, since the letter made no mention of this section nor of non-compliance with anything by the applicant. It should also be said that this is not an ordinary case of, say, padi land whose proprietor has unsuccessfully applied for the condition to be changed to commercial nor of, say, residential land whose proprietor has unsuccessfully applied for the condition to be changed, so that he can build a factory or other commercial building in a residential area. The land here is in a commercial zone, the City Planner has no objection to the proposed development, and the Land Executive Committee has approved the various applications of the applicant, and the developer has agreed to all the 25 conditions imposed, except the one which the trial judge and this court say the Committee has no right to insist on. In reconsidering these applications, the Committee should act fairly and not arbitrarily. There must be no bad faith and no dishonesty, though in fairness to everybody concerned nobody has suggested that on the part of the Committee. There must be no unreasonableness, no attention to extraneous circumstances, no disregard of public policy, and things of that sort — things mentioned by Lord Greene, M.R., at page 682 in Associated Provincial Picture House v Wednesbury Corporation [1947] 2 All ER 685. Above all, in the Malaysian context, the Committee should bear in mind avowed official policy to promote development, to provide as much housing as possible ("property-owning democracy"), that promptness in approval enables purchasers to acquire property and homes at more or less current prices, that delay in approval, on the other hand, apart from causing dissatisfaction and breeding corruption, leads to delay in completion of projects and forces purchasers to pay prices swollen over time by inflation, and hinders national development. It is a mistake to suppose that delay in approval harms developers. Delay inflates the value of their land and 26 they can get round increased building and other costs by simply passing them down to their customers. The order of the court is that the orders of the learned trial judge be set aside and instead there shall be an order that these applications be remitted for reconsideration by the Land Executive Committee in accordance with the law. What would happen if the Committee were to ignore the order of the court? As to this, I wish to make two observations. First, in my experience, no Government department or ministry has ever set the courts at defiance. Secondly, it would not be out of place to reproduce the following words from the judgment of the Privy Council at page 28 in Fischer v Secretary of State for India in Council (1898–99) 26 IA 16 : "But then, it was asked, what would happen if the Collector ignored the order of the Court? What remedy would the appellant have if he had omitted to ask for specific relief against the Collector? It is highly improbable that any officer of the Government would set the Court at defiance. It is impossible to suppose that the Government would countenance such conduct as that. But the 27 remedy in such a case, if it did occur, would be simple enough. Every order such as that which the appellant asks for carries with it liberty to apply. On a proper application and on proper notice being given it would be found that the arm of the Court would be long enough to reach the offender, whatever his position might be." (emphasis added) [39] I need not say more nor can I usefully add to what has been so succinctly said in all its stark seriousness. What was so remotely distant has now come to ruse at our very doorsteps. It is no less than setting the Court at defiance. This Court would not allow it! [40] Granted the Government of Malaysia is unhappy with the decision of the Court in the 1st OS. Like all litigants who are disappointed with a decision of the Court, the proper course is to appeal and this D1 has done. [41] In the event that D1 is successful on appeal, the declarative order of the High Court in the 1st OS would be set aside with the consequence that the first call on the BG is valid and the monies secured will have to be paid out to them. 28 [42] It cannot degenerate into a situation where the Government of Malaysia can make another call on the BG and the Plaintiff cannot do anything but to wring its arms and stand hapless and helpless because there was no injunction to restrain the Government of Malaysia to call on the BG but merely a declaration that the call is unconscionable. [43] The Plaintiff would have no alternative but to rush to Court to restrain another call on the BG and the same issues would have to be agitated again. I would say that res judicata does not apply in that the present call on the BG is a different call on the BG, being made on a different date. More importantly it was a call made on the BG after it has expired. [44] Here is a case where D1 having precipitated this situation where the Plaintiff has no choice but to come to the court again, D1 cannot then be heard to say that the Court should dismiss the Plaintiff's claim on ground of res judicata. It would be tantamount to saying that "head I win and tail you lose!" It was D1 itself that deliberately disregard the declarative order of the previous High Court Judge that has compelled the Plaintiff to come back to Court once again for protection. 29 [45] I am emboldened by the dicta of the Court of Appeal in Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321 pp 332-333 where it was clarified that a Court may decline to follow the doctrine of res judicata where to do so would lead to an unjust result. At pp 332-333 it was explained as follows by Gopal Sri Ram JCA (later FCJ): "Now, there is a dimension to the doctrine of res judicata that is not always appreciated. It is this. Since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, a court may decline to apply it where to do so would lead to an unjust result. And there is respectable authority in support of the view I have just expressed. In Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd and Others (No 2) [1966] 2 All ER 536 , 573, Lord Upjohn said: As my noble and learned friend, Lord Reid, has already pointed out there may be many reasons why a litigant in the earlier litigation has not pressed or may even for good reasons have abandoned a particular issue. It may be most unjust to hold him precluded from raising that issue in subsequent litigation (and see Lord Maugham LC's observations in 30 the New Brunswick case ([1938] 4 All ER at p 755; [1939] AC at p 21). All estoppels are not odious but must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind. (emphasis added.) In Arnold v. National Westminster Bank Plc [1991] 2 AC 93, 109, Lord Keith of Kinkel expressed the following view: In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result, as was observed by Lord Upjohn in the passage which I have quoted above from his speech in the Carl-Zeiss case [1966] 2 All ER 536 at 573, [1967] 1 AC 853 at 947. (emphasis added.) 31 In a later passage, I find Lord Keith saying: Estoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process. In the present case I consider that abuse of process would be favoured rather than prevented by refusing the respondents permission to reopen the disputed issue. These views were very recently reaffirmed by the House of Lords in Johnson v. Gore Wood & Co (2000) (Unreported, speeches published on 14 December 2000). See, in particular the speech of Lord Bingham of Cornhill, at pp. 8-10 of the transcript. On the authorities discussed thus far, the principle comes to this. Whether res judicata in the wider sense should be permitted to bar a claim is a matter that is to be determined on the facts of each case, always having regard to where the justice of the individual and particular case lies." (emphasis added) [46] I am left in no doubt that the justice of this case requires this Court to hear the Plaintiff and to say in no uncertain terms to the Government of Malaysia that it cannot deliberately set the Court at defiance by 32 disregarding the Court's declarative order and then raise res judicata to bar the Court from hearing the Plaintiff once again. [47] At any rate such a call is unconscionable as a previous call had been made and declared by the Court in the 1st OS to be unconscionable. There is no change of circumstance that D1 has shown that would justify another call on the BG. This second call on the BG has all the elements of an unfair advantage that makes it unconscionable as just because an injunction could not be granted against the Government of Malaysia as a final relief but merely a declaration, it does not mean that the Government of Malaysia may leverage and latch on to this with the effect of denuding the Court's declarative order of its dictate altogether. It would be unconscionable to allow the Government of Malaysia here to undermine the Court's order declaring that the earlier call on the BG is unconscionable. [48] It is unconscionable as to allow a second call on the BG would be inconsistent with equity and good conscience in as much as it would be unfair and certainly lacking in good faith. [49] The learned SFC referred to the Court of Appeal’s decision in Superintendent of Lands and Surveys, Kuching Division & Ors v 33 Kuching Waterfront Development Sdn Bhd [2009] 6 CLJ 751 at p. 752- 753 where it was held as follows: “[2] Subject to certain statutory restrictions, a court may issue declaratory decrees pertaining to the status or right of any person entitled to any legal character, or to any right as to any property. He is entitled to institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make a declaration that he is so entitled ... [8] Once the respondent had successfully established its rights vide the declaration action, it could sue for damages without impediment ...” [50] No doubt a person is entitled to sue for damages if there has been breach of a declarative order given in its favour. However that is not the only remedy and in a case that warrants it, like here, the Court is entitled to grant an ad-interim injunction to restrain a second call on the BG by the Government of Malaysia and in the hearing of the final relief, to grant the necessary declaration that the second call on the BG is unconscionable and to grant consequential reliefs. 34 [51] Learned SFC quoted from a book written by the Rt. Hon. The Lord Woolf (Lord Chief Justice of England and Wales) and Jeremy Woolf entitled ‘The Declaratory Judgement’, London Sweet & Maxwell [2002] at p 4. However he only quoted the words in bold below and I think for context and completeness, the whole passage should be included as set out below: “1.07 However, whilst the defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant then acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings. By contrast the claimant may then again go to court, this time for damages to compensate for the loss he has suffered or to seek a decree to enforce the rights established by the declaration. A defendant, being aware of these consequences, will usually comply with the declaratory judgment. However, where the claimant has grounds to fear that the declaration will not be strictly observed, he may - in cases in which he is entitled to a remedy which can be enforced - claim additionally an award of damages, an order of 35 specific performance, an injunction or any other remedy to which he is entitled." (emphasis added) [52] Here in the OS the Plaintiff had prayed for in Enclosure 1 a further declaration that the BG had expired and that the monies secured by the BG be returned to the Plaintiff and further that the BG be returned together with copies of it to the Plaintiff for disposal. The Plaintiff is constrained to ask for these incidental reliefs as the Government of Malaysia has shown that it has no intention to abide by the declaration of the Court in the 1st OS that the call was unconscionable. [53] D1 cannot be heard to say that the Plaintiff is entitled to damages only for that would be undermining the very basis for the Court's earlier decision in the 1st OS in granting the injunction as damages would not be an adequate remedy and finally to grant the declaration prayed for by the Plaintiff. It would be a back door way of getting the same result what they could not get in the 1st OS! Whether there can be a valid call on the BG after it has expired [54] In Development Bank of Singapore Ltd v Eng Keong Realty Pte Ltd [1990] 3 MLJ 89 the Bank Guarantee that was procured by the second defendant contained a clause that the guarantee would be effective from 15 36 October 1987 to 14 April 1988 and was conditional upon a claim being made in writing and received by the plaintiffs on or before the expiry date, and thereafter the guarantee would automatically cease to have any effect whatsoever whether or not it was returned to the plaintiffs for cancellation. It was held by the Singapore High Court that since no valid demand had been made under the guarantee before the expiry date on 14 April 1988, the first defendants as beneficiary of the guarantee were no longer entitled to rely on it and the second defendants that procured the guarantee were entitled to the return of the monies put up as security with the plaintiff bank for the issuance of the bank guarantee. See also the case of Sigur Ros Sdn Bhd v Malayan Banking Bhd & Anor [2013] 8 CLJ 86 where it was held that as the BG had expired as of 21 March 2013 when D2 made a demand under it and as such D2 was not entitled to call on the BG. [55] In this case before the Court, any call on the BG shall be made before its expiry on 31 January 2015. D1 had already called on the BG on 26 January 2015. It was before the expiry of the BG on 31 January 2015. However D2 the Bank did not make any payment to D1 because of the interim injunction issued by the previous High Court pending the hearing of the 1st OS. After the hearing of the 1st OS the Court granted a declaration that the call on the BG was unconscionable. 37 [56] Hence, the learned SFC submitted, D1 cannot be faulted as there was an interim injunction against calling for the BG till disposal of the 1st OS. No one is talking about fault here. Like everyone going to Court or being brought to Court, sometime the decision is in one's favour and sometime the decision is against. One then would exercise one's right of appeal if the decision is not in one's favour and while awaiting appeal, one may apply for a stay of the order if it is an order amenable to stay. Generally a declarative order is not amenable to stay. See the case of Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No.3) [2010] 2 MLJ 141 at para [6]. That is the position of the law for the time being and through no fault of D1, the Government of Malaysia. [57] The learned SFC submitted that the letter written by D1 on 26 May 2016 calling for the BG was only written after the disposal of the 1st OS. He further submitted that in any event, the first letter dated 26 January 2015 should be considered as the demand for the BG. [58] I agree that the first demand on the BG before the BG expired on 31 January 2015 is the demand that is in issue. That is the subject matter of the pending appeal in the Court of Appeal. If the appeal is in favour of D1 in that the first call is valid and not unconscionable, then the Bank would have to release the monies guaranteed under the BG to D1. To make another 38 call on the BG and this time after its expiry, is not just invalid and ineffective but also an abuse of the declarative order of the Court and an affront to the authority of the Court. It is axiomatic that obedience to an order of the Court is the foundation on which its authority is founded as was held in Re Jokai Tea Holdings Ltd [1993] 1 All ER 630. [59] Much has been argued by the learned SFC on the lack of locus standi of the Plaintiff to bring this action as the contract is between D1 and SD Com and the BG was taken out in the name of SD Com, though it is the Plaintiff that had provided the funds for the BG. Irrespective of the rightness of the decision of the High Court in the 1st OS action, that matter has been argued and dismissed. At any rate I am in agreement with observation of the High Court in the case of Sigur Ros Sdn Bhd v Malayan Banking Bhd & Anor [2013] 8 CLJ 86. There on a similar issue it was held by Nallini Pathmanathan J (now JCA) as follows: “[91] In short, both lines of cases recognise that s. 41 of the Specific Relief Act 1950 is not exhaustive in relation to the grant of declarations. Whether it be under O. 15 r. 16 of the Rules of Court 2012 (‘Rules of the High Court 1980’) or the inherent jurisdiction of the court, this court is entitled to look outside of s. 41 of the Specific 39 Relief Act in determining whether or not the plaintiff has locus standi to initiate this current originating summons in relation to the validity of the BG. The test, as I understand it, is whether the plaintiff has an interest in the subject matter of the dispute or whether the plaintiff’s interests would be ‘peculiarly affected’ by the call on the BG. [92] It is clear that the Plaintiff’s interests would be directly affected by an honouring of the BG because it is the Plaintiff’s funds that would be utilised to honour the BG. If the BG has indeed expired the plaintiff would be out of pocket of that sum. In these circumstances I am satisfied that the plaintiff has a valid and legitimate interest in the dispute pertaining to the validity of the BG. More significantly I am also satisfied that the Plaintiff’s interests would be peculiarly affected by the honouring of the BG and to that extent the plaintiff has locus standi or standing to bring the current originating summons. The fact that the plaintiff has no direct cause of action in respect of the BG does not preclude the plaintiff from seeking the declaratory relief because its interests are peculiarly affected.” [60] In the above case, the bank in question had already taken a stand not to honour the call of the BG because the BG had expired. In the case 40 before this Court, D2 had verbally informed the Plaintiff that they have agreed to honour the call of the BG despite its expiry in January 2015. This Court cannot stand idly by in the face of an application for an ad-interim injunction pending the hearing of the OS and thereafter for a declaration that the second call on 26 May 2016 is unconscionable. To accede to D1's arguments that the Plaintiff's application ought to be dismissed would be an affront to the authority of the Court, undermining its dignity and rendering its previous sanction superfluous and its order otiose. This the Court would not allow. Pronouncement [61] For the reasons given above, this Court granted a declaration that the call by D1 on the BG on 26 May 2016 is unconscionable and that in any event the BG had expired and become void upon its expiry on 31 January 2015. To ensure no further call on the BG again, D1 is the return the original copy of the BG together with all duplicate copies of it to the Plaintiff forthwith for its cancellation. I also ordered costs of RM10,000.00 to be paid by D1 to the Plaintiff. [62] As D2 had agreed to abide by any order of this Court, the Plaintiff had discontinued its action against D2. 41 [63] As a matter of postscript there was a subsequent application of D1 to stay the order for the return of the BG to the Plaintiff and the Plaintiff had graciously agreed to the stay pending the disposal of the appeal in the Court of Appeal. Dated: 14 October 2016. - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : Shahir Abd Razak, Abdullah Khubayb and C K Foong (Messrs Foong & Tan ) For the Defendant: SFC Ahmad Hanir Hambaly @ Arwi (Attorney General's Chambers) Date of Decision: 22 July 2016

Tika 2.6.0

BA-24NCVC-100-04/2016

PLAINTIF Perusahaan Otomobil Nasional Sdn. Bhd. DEFENDAN 1. Meka Automotive Industries Sdn. Bhd dan 2 Lagi

13/10/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a35d09d6-4c2f-4a64-8e6d-361d8c380f67&Inline=true

Microsoft Word - BA-24NCVC-100-04-2016 Perusahaan Otomobil Nasional Sdn Bhd v Meka Automotive Industries Sdn Bhd & 2 lagi 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO. BA-24NCVC-100-04/2016 In the matter of Perusahaan Otomobil Nasional Sdn Bhd And In the matter of Section 50 of the Specific Relief Act 1950, Section 51 of the Specific Relief Act 1950, Section 52 of the Specific Relief Act 1950 and Section 53 of the Specific Act 1950 And In the matter of Order 7 of the Rules of Court 2012 And In the matter of Order 92 rule 4 of the Rules of Court 2012 BETWEEN PERUSAHAAN OTOMOBIL NASIONAL SDN BHD …PLAINTIFF 2    AND 1. MEKA AUTOMOTIVE INDUSTRIES SDN BHD (Formerly known as Dominant Motor Sdn Bhd) (Company No. 800977-T) 2. TCM STAMPING PRODUCTS SDN BHD (Company No. 72982-T) 3. DYNAMIC MFG. (M) SDN BHD (Company No: 325496-U) ...DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 3 - Mandatory Injunction) A. BACKGROUND FACTS [1] The present case before this Court is a clear cut application for a mandatory injunction under Section 53 of the Specific Relief Act 1950. The Plaintiff by its Enclosure 3 had applied to this Court for an order to compel the Defendants to return the Plaintiff’s own properties in which, the ownership to the properties were explicitly admitted and acknowledged by the 1st Defendant and the retention of the Plaintiff’s properties by the Defendants is legally wrong. 3    [2] The 1st Defendant’s defence and objection against this Application is overwhelmingly nonsensical and begs this Court to question the 1st Defendant’s truthfulness at all fronts. There is no reason for this Court to dwell on this case at length considering the obvious merits of the Plaintiff’s Application. And this Court adds very early in this judgment that, there is no necessity for the present Application to be elevated into a writ action, as the evidences, inclusive of the 1st Defendant’s own admissions is utterly telling of the Application’s merits. [3] Alluding to the facts, the Plaintiff {Perusahaan Otomobil Nasional Sdn Bhd (“Proton”)} a national car manufacturer had entered into numerous agreements with Meka Automotive Industries Sdn Bhd {formerly known as Dominant Motor Sdn Bhd (“ 1st Defendant”)} in which Proton agrees to purchase, and the 1st Defendant agrees to manufacture and supply Exora (Proton’s Car Model) Parts to the Plaintiff. This sale and purchase agreement was concluded in a Parts Purchase Agreement (“PPA”) between the Plaintiff and the 1st Defendant. The list of Exora Parts in the PPA was supplemented by numerous documents which were even signed by the 1st Defendant itself. There are overwhelming evidences in the Affidavits to indicate that the 1st Defendant has acknowledged 4    its obligation to manufacture and supply, on the Plaintiff’s demand specifically Exora Parts to the Plaintiff. [4] In light of the PPA, the 1st Defendant does not have the proper equipment and tools to manufacture the Exora Parts that the 1st Defendant is contractually obliged to supply to the Plaintiff. In remedying this fact, Proton has entered into two separate Tools Provisioning Agreements (“TPAs”) in which Proton had licensed the use of the Proton’s own Exora Toolings to the 1st Defendant to manufacture the parts required under the PPA. [5] In light of the TPAs, the Exora Toolings were transferred by the 1st Defendant to TCM Stamping Products Sdn Bhd (“2nd Defendant”) as well as Dynamic MFG (M) Sdn Bhd (“3rd Defendant”) (collectively referred to as “subcontractors”) in which the 1st Defendant had subcontracted its obligations under the PPA and the TPAs to the subcontractors. It is pertinent to note that the subcontractors have no objection to the present Application, and never contested on the Plaintiff’s rights for the return, and the ownership of the Exora Toolings. 5    [6] It was resoundingly clear and uncontested that amidst all of the 1st Defendant’s lame excuses, that at the core of the case, the 1st Defendant has ultimately failed to comply with the PPA and TPAs and supply Exora Parts to Proton on Proton’s demand. The factum of breach of the PPA and TPAs is very obvious and clear. The 1st Defendant did not even attempt to disprove the fact of the breach and instead went off on an irrelevant tangent supposing a “grand scheme” of a “financial strangulation” which hinders the 1st Defendant’s performance to comply with the PPA and TPAs. In essence, it remains undisputed that when Proton called for the delivery of Exora Parts on 19.4.2016, to be delivered in 15.3.2016, the 1st Defendant had ultimately failed to perform its end of the bargain. Further adding gravity to the 1st Defendant’s arrogant breach, was the fact that the Plaintiff had found that the 1st Defendant’s plant was closed and a notice of cessation of workers was issued by the 1st Defendant. [7] It is this undisputed breach that forms the basis of Proton’s present Application to compel the return of the Exora Toolings which were held at ransom by the 1st Defendant. It is remarkably simple. The 1st Defendant had breached the PPA and TPAs, allowing the Plaintiff to rightfully and legally terminate the PPA and TPAs, which 6    naturally entails that the Plaintiff has all the rights to take possession of the Exora Toolings which are still unlawfully held by the 1st Defendant through its subcontractors. There is really no reason at all for the Exora Toolings to be held by the Defendants owing to the fact that the tools were unique to produce Exora models, and that the Plaintiff no longer orders Exora Parts from the 1st Defendant. B. THE 1ST DEFENDANT IS CLEARLY OBLIGATED TO SUPPLY EXORA PARTS TO THE PLAINTIFF [8] The 1st Defendant had the audacity to contend, in total disregard of their own admissions, and evidences that they are not obligated to supply Exora Parts under the PPA. This contention is one of the many reasons that this Court believes that the 1st Defendant had not been totally candid and frank with the Court. Just reiterating the contention is ridiculous. The factum of the Exora Toolings being in the 1st Defendant’s possession is uncontested and admitted. The factum of the tools to be Exora Toolings being unique to the Exora Model is uncontested. Contrasting this contention to these two former facts, it makes no legal or logical sense that the 1st Defendant would be licensed to use these Exora 7    Tools and take the same into their care and possession if the 1st Defendant is not obligated to manufacture and supply Exora Parts. Why would the 1st Defendant take possession of the Exora Tooling if it was not incumbent upon the 1st Defendant to manufacture and supply Exora parts? Clearly here, the 1st Defendant admits and acknowledges their obligation to manufacture and supply Exora Parts. [9] Adding further dent to the 1st Defendant’s truthfulness and overall defence is the fact that the 1st Defendant had on numerous documents admitted to receiving Exora Toolings particularly three Lists of Toolings respectively dated 7.3.2014 and 15.4.2013. These Lists were even signed by the representative of the 1st Defendant. The First List dated 7.3.2014 is riddled with clear indications of the tools being tools used for the specific and unique manufacturing of Exora Parts. It is written in the table, “Dies Exora(MPV)”, “Jigs Exora(MPV)”, and “Mould Exora(MPV)” [10] Not only that, other signed documents such as the Supplemental Letter dated 18.7.2011 as well as the Parts Price Revision (“PPR”) dated 12.9.2013 had indicated the 1st Defendant’s own 8    agreement and admission to be obliged to supply Proton with Exora Parts. [11] There is no room at all for the 1st Defendant to contend otherwise than the fact that it is incumbent upon the 1st Defendant to manufacture and supply Exora Parts for Proton. Thus, this Court similarly finds that the 1st Defendant is indeed obligated under the PPA and the TPAs to manufacture and supply Exora Parts to the Plaintiff. C. THE PLAINTIFF IS THE OWNER OF THE TOOLS [12] Adding further damage to the 1st Defendant’s truthfulness and overall defence, is the fact that the 1st Defendant, against its own admission and acknowledgment of the Plaintiff’s full ownership of the Exora Toolings, had contended that the Plaintiff was not the owner of the Exora Toolings, and that the Exora Toolings were owned by another third party company. Again, this Court does not have to go at lengths to see the glaring lack of merit in the 1st Defendant’s contention. 9    [13] The 2nd and 3rd Defendants had never contested Proton’s ownership over the Exora Toolings. Furthermore, the 1st Defendant itself had repeatedly, times and times again, admitted and acknowledged the fact that the Exora Toolings were in fact fully paid for by the Plaintiff, and is indeed fully owned by the Plaintiff. The 1st Defendant had even acknowledged this fact in numerous instances. Admission of Proton’s proprietorship vide the List of Toolings dated 7.3.2014 [14] Beneath the table listing all of the Exora (MPV) toolings licensed and sent to the 1st Defendant, the 1st Defendant had explicitly signed, admitted and undertook the following: “I, the authorised representative of DOMINANT MOTOR SDN BHD (“the Company”) (now the 1st Defendant), hereby unconditionally undertake, acknowledge, and agree: (a) that title to and ownership of the abovementioned Tooling (“said Tooling”) is/are vested with and 10    owned by Perusahaan Otomobil Nasional sdn bhd (“PROTON”) (b) that the Company undertakes to maintain the said Tooling in good repair and condition at all times and make good any damage caused to the same; (c) that the said Tooling shall be returned/caused to be returned to PROTON forthwith on demand; (d) that the Company agrees and undertakes to obtain the prior written consent from PROTON in respect of any disposal, transfer, attachment, pledge, or otherwise any dealing whatsoever of the said Tooling. [15] The same was similarly admitted by the 1st Defendant in agreeing to enter into the two TPAs. Clause 4.1 of the two TPAs are identical, and both explicitly state that the proprietorship of the toolings shall vest in Proton. Moreover, Recital D (which is identical in both TPAs) also states that the parties, especially the 1st Defendant agrees that Proton had dully paid the price of the toolings. 11    [16] It is illogical and nonsensical that the 1st Defendant would make the above admissions under its own signature, if the 1st Defendant is not entirely sure of the Plaintiff’s proprietorship over the toolings. If so, then the 1st Defendant had indirectly came forth to this Court openly contending that the 1st Defendant had willingly out of its own volition, agreed to enter into a sham agreement where the content of the agreement is untrue. [17] Nonetheless, no parties shall be allowed to deal injustice by approbating and reprobating its stance. This Court refers to the decision of the Court of Appeal in the case of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16 regarding the Defendant’s conduct of blowing hot and cold with its stance: “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two 12    inconsistent attitude towards another : he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” (See also Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331) [18] Thus, the 1st Defendant cannot now, after admitting that Proton is the rightful proprietor of the Exora Toolings and that Proton had fully paid for the Exora Toolings, be allowed to go against its words and stance, for allowing such would bring grave injustice against the Plaintiff. [19] Thus, it is this Court’s finding that the Plaintiff is undoubtedly the owner and proprietor of the Exora Toolings. D. THE 1ST DEFENDANT HAD BREACHED THE PPA and the TPAs [20] There is no reason to dwell for long in this issue. The 1st Defendant had never contested the fact that it had failed to comply with 13    Proton’s order when demanded. Instead, what was afforded to this Court, were a lame narrative of a supposed ‘financial strangulation’ on an altogether different and separate aspect of the 1st Defendant’s business and complaints of short payments and delay of payments in which the 1st Defendant itself had admitted to have been settled. The 1st Defendant’s claim for short payment and delay in payment untenable [21] These claims are untenable for the simple fact that the parties have already reached a final settlement in which concludes whatever short or delayed payment by the Plaintiff. The 1st Defendant claimed a total amount of RM5,974,874.18 for short and/or delayed payment. [22] However, as rightfully pointed out by the learned counsel for Proton, the parties have already reached a final settlement over the above sum and the 1st Defendant had explicitly admitted that it no longer held any other lawful claims against the Plaintiff. 14    [23] Now, the 1st Defendant contended that the evidence used to prove this settlement is inadmissible for the reason that the document is a ‘without prejudice’ document. However this Court does not hesitate to dismiss this misconceived notion the 1st Defendant laid on the Document. It is trite that a document would be without prejudice if the document is proof to a negotiation to settle, and not proof of the settlement itself. But that is altogether not the case in the present Application. The parties are no longer negotiating for a settlement. A settlement had already been reached, and any document to prove this settlement, is not any proof of negotiation, but proof of the settlement itself. [24] The 1st Defendant itself in its own letter had admitted to the final conclusion of the settlement and that the settlement is “free from without prejudice” in its own letter accepting the settlement dated 3.3.2016 (“Settlement Acceptance”). Paragraph 3 of the Settlement Acceptance stipulates the following: “MEKA hereby irrevocable agrees and declares that it shall accept this Settlement Letter free from without prejudice basis wholly and unconditionally and shall have no further and/or other claims whatsoever against 15    PROTON…and unconditionally and completely releases and discharges PROTON of and/or from any and/or all claims…” [25] A settlement had already been reached, and the 1st Defendant itself admitted to the inapplicability of the without prejudice rule. [26] In fact, following the Settlement Acceptance, the 1st Defendant followed up with a statutory declaration dated 7.3.2016 (“SD”) absolving the Plaintiff from claims and liabilities in relation to the short and/or delayed payments. The SD reads: (2) That MEKA AUTOMOTIVE SDN BHD has submitted all its claims against Perusahaan Otomobil Nasional sdn bhd (PROTON) as set out in… the Settlement Letter dated 3/3/2016 (the Settlement Acceptance in the present case) and that Meka Automotive Sdn Bhd has no other or further claims whatsoever against PROTON … 16    (8) That in accepting this Letter of Settlement, MEKA AUTOMITIVE SDN BHD irrevocably agrees to waive all its rights to further claim, demand and/or pursue PROTON with regard to the claims [27] It has long been trite that without prejudice documents shall cease to be without prejudice when a settlement has been reached. This is simply because the documents now stand to be admissible evidence to prove the terms of the agreement. This principle is echoed in the Federal Court’s decision in Malayan Banking Berhad v Foo See Moi (1981) 2 MLJ 17, FC: “it is also settled law that where the negotiations conducted without prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement” [28] And rightfully so, the Settlement Acceptance and the SD now, is good admissible evidence to prove that the 1st Defendant no longer has any rights to claim for the purported short and/or delayed payment. 17    Whatever external ‘financial strangulation’ irrelevant to the present Application [29] In utter desperation, the 1st Defendant turned to attempt to justify its outright failure to comply with the PPA. And the 1st Defendant attempted so by supposing that the Plaintiff had set up a ‘grand scheme’ in which had put ‘financial strangulation’ hindering the 1st Defendant from performing its end of the bargain under the PPA. Even this contention is self-defeating the 1st Defendant’s own defence. On one hand, the 1st Defendant contends that it owes no obligation to supply Exora Parts to Proton under the PPA, and bewilderingly on the other, the 1st Defendant suddenly contends that it does owe such obligation but was unable to perform the obligation due to a self-conceptualised ‘grand scheme’ putting the 1st Defendant in a financial chokehold. This ideation of financial strangulation has no relevance at all in the present Application. Not only that, no real proof of such strangulation or deprivation had ever been appended in any of the 1st Defendant’s affidavit. All that was furnished is a loathsome narrative that the 1st Defendant was not able to perform its obligation because another spectrum of the 1st Defendant’s business was somehow hindered. The case is utterly plain and simple. The 1st Defendant had not proven any 18    valid monetary claims under the PPA, TPAs, and other supplementary documents that would justify the retention of the Exora Toolings. In fact, there were only glaring evidences that the 1st Defendant instead owed an obligation to the Plaintiff, which is the same obligation which was to date never been performed. This lame narrative of a financial strangulation was loosely hinged on the reports of the mainstream media stating that the Plaintiff is in a financial turmoil and that the Plaintiff generally owes millions of Ringgits to its vendors. However this lame narrative lacks any respectable cohesion and relevance to the present Application, simply because it proves nothing against the Plaintiff in relation to the PPA and the TPA which binds the 1st Defendant with Proton. It matters not if the Plaintiff owes other vendors monies at whatever earth-shattering magnitude. At the end of the day, Proton owes nothing to the 1st Defendant, and the 1st Defendant has no excuse whatsoever for failing and refusing to perform its obligations under the PPA, the TPAs and other supplementary documents. And the 1st Defendant has no excuse to retain the Exora Toolings ransom with hopes that the Plaintiff would endeavour to somehow dig the 1st Defendant out of its financial woes which is entirely not any concern for the Plaintiff. The 1st Defendant out of its own volition had agreed to shoulder its obligations under the PPA and the 19    TPAs. Thus, it would be against the sheer principle of commerce and the law for this Court to absolve the 1st Defendant’s liability for the breach simply because the 1st Defendant had found itself in a financial trouble which is entirely foreign to the PPA and the TPAs. [30] Therefore, it is this Court’s finding that the 1st Defendant clearly have failed and refused to perform its obligation under the PPA and TPAs and is in clear breach of the PPA and TPAs. E. IT IS WELL WITHIN PROTON’S RIGHTS TO HAVE THE EXORA TOOLINGS RETURNED [31] It is clear that the present case is a clear cut case for this Court to award a mandatory injunction to compel the Defendants to return the Exora Toolings to its rightful owner and proprietor which is the Plaintiff. The 1st Defendant had breached the PPA and TPAs and the same agreements had been lawfully terminated. There are no logical or legal reasons at all for the Exora Toolings to be retained by the 1st Defendant’s subcontractors. [32] This Court finds that the Plaintiff’s case is extremely and exceptionally clear and that a similar injunction would have been 20    granted had the case be disposed on trial and that refusing the injunction would have caused unnecessary and grave damage and inconvenience against the Plaintiff. Even at this stage in the Originating Summons, there is already a clear case for a breach of contract in which overwhelming evidences met out that the 1st Defendant is the delinquent party breaching the contract. It is overwhelmingly clear that the Plaintiff had rightfully terminated the PPA and the TPAs. It is overwhelmingly clear that the Defendants have no rights whatsoever in retaining the Exora Toolings. It is overwhelmingly clear that the Defendants have no justifiable reasons at all to retain the Exora Toolings since there will no longer be orders for Exora Parts placed by Proton on the delinquent 1st Defendant to manufacture. This immediate fact is infinitely more overwhelming considering the fact that the Exora Toolings can only produce Exora Parts and no other car models. [33] It is also overwhelmingly clear that the refusal of this mandatory injunction would cause undue damage and inconvenience to the Plaintiff in which damages will not be an adequate remedy. The unique Exora Toolings are the only tools capable of manufacturing the Exora Parts to exact specifications. Without the same Exora Tools, Proton would remain without the proper tools to ensure 21    smooth manufacturing of its car. Damages clearly would not remedy this glaring lack of appropriate toolings. Proton is simply out of any options and no amount of monies could replace what Proton is in dire need of to continue manufacturing and meeting orders – and that is exactly the irreplaceable Exora Toolings. Without the Exora Toolings, Proton could not even go to any other vendor to manufacture and supply the Exora parts. All manufacturing of Exora car models would go to a complete halt unless the Exora Toolings are returned to the proper and rightful owner that is the Plaintiff. This Court shall never allow the delinquent party (1st Defendant) to hold Proton’s property at ransom so as to allow the 1st Defendant to extort money from the Plaintiff. [34] On the balance of convenience, clearly greater harm would befall the Plaintiff in the event the injunction is refused. In fact, the 1st Defendant stands to suffer no harm or hardship at all if the injunction is allowed. This is simply because the Exora Toolings are worthless unless orders for Exora Parts are placed. And entailing the valid termination of the PPA and TPAs, the 1st Defendant shall no longer be placed with any order for Exora Parts from the Plaintiff. This is infinitely clearer considering Proton is the 22    only manufacturer of Exora Model Cars in the entire world. The Exora Toolings are not even in the possession of the 1st Defendant at the time of this Application. [35] Thus, it is this Court’s finding that the Plaintiff has successfully fulfilled all of the requirements to succeed in an application for mandatory injunction under Section 53 of the Specific Relief Act 1950. (see Redland Bricks Ltd v Morris & Anor [1970] AC 652; Tinta Press Sdn Bhd v Bank Islam (M) Bhd [1987] CLJ (Rep) 396 SC; Vistanet (M) Sdn Bhd v Pilecon Civil Works Sdn Bhd [2005] 6 MLJ 664) F. MISCELLANEOUS [36] Just for the sake of convenience and completion, this Court shall deal with the preposterous contention by the 1st Defendant that it now alleges that the TPAs were a forgery and fabrication merely for the reason that there were two different but identical TPAs which were executed. It is essential to note that it remains undisputed that the 1st Defendant and its subcontractors have long 23    had the benefit of use of the Exora Toolings. It is erroneous just to consider that the 1st Defendant would out of its own will, for no apparent reason at all, attain possession of Exora Toolings from the Plaintiff. It is infinitely more probable than not that there would be an agreement of between the 1st Defendant and the Plaintiff. The 1st Defendant, after having the benefit of the use of the Exora Toolings, cannot now suddenly aver that it questions the authenticity of the TPAs. Both the TPAs bore the exact same signature and company stamp of the 1st Defendant’s representative. Both TPAs by and large has the exact similar content, save for one miniscule typographical error. And it is more probable than not that the 1st Defendant is well aware of the reason behind the execution of both the TPAs (in rectifying the typographical error), considering that the 1st Defendant had for years enjoyed the use of the Exora Toolings without any queries or concerns asked. G. COURT’S DECISION [37] In view of all of the findings and deliberations above, this Court grants order-in-terms to the Plaintiff’s Enclosure 3 with costs of RM10,000.00. 24    [38] This Court also orders that all of the Exora Toolings as stipulated in Appendix A of the Plaintiff’s Originating Summons be returned to the Plaintiff. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 13th October, 2016 For the Plaintiff - Messrs Shearn Delamore & Co. K Shanti Mogan Wong Lien Lien For the 1st Defendant - Messrs Kamil Hashim Raj & Lim Ahmad Nazri Ibrahim For the 2nd Defendant - Messrs Scully Yoon Ng Shi No Terrence Lee

Tika 2.6.0

WA-24C-11-04/2016 & WA-24C-22-05/2016

PLAINTIF 1. ) BM City Realty & Construction Sdn Bhd 2. ) Merger Insight (M) Sdn Bhd DEFENDAN 1. ) Merger Insight (M) Sdn Bhd 2. ) BM City Realty & Construction Sdn Bhd

23/09/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=68e092aa-1fbf-4091-a789-96917450c1e3&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-11-04/2016 In the Matter of an Adjudication Between Merger Insight (M) Sdn Bhd (Claimant) and BM City Realty & Construction Sdn Bhd (Defendant) [Ref No. KLRCA/D/ADJ-0196-2015]; And In the Matter of the Adjudication Decision by Mr Ernest Jai Kumar Azad dated 4.4.2016 [Ref No. KLRCA/D/ADJ-0196-2015]; And In the Matter of Section 15, 16, 18, 24, 25 and 27 under the Construction Industry Payment and Adjudication Act 2012; And In the Matter of the PAM Contract 2006 (Without Quantities) dated 28.4.2014 between BM City Realty & Construction Sdn Bhd (Company No: 941446-P) and Merger Insight (M) Sdn Bhd (Company No: 261853-A) And 2 In the Matter of Orders 7 and 28 of the Rules of Court 2012 and the inherent jurisdiction of the Court BETWEEN BM CITY REALTY & CONSTRUCTION SDN BHD (COMPANY NO: 941446-P) ... PLAINTIFF AND MERGER INSIGHT (M) SDN BHD (COMPANY NO: 261853-A) ... DEFENDANT (heard together with) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-22-05/2016 In the matter of an Adjudication Between Merger Insight (M) Sdn Bhd and BM City Realty & Construction Sdn Bhd And In the Matter of the Adjudication Decision dated 4.4.2016 and Letter dated 4.4.2016 made by Mr Ernest Jai Kumar Azad And 3 In the Matter of Section 28 of the Construction Industry Payment and Adjudication Act 2012 And In the Matter of Orders 7, 28, 42 and 92 or the Rules of Court 2012 And In the Matter of Section 11 of the Civil Law Act 1956 BETWEEN MERGER INSIGHT (M) SDN BHD (COMPANY NO: 261853-A) ... PLAINTIFF AND BM CITY REALTY & CONSTRUCTION SDN BHD (COMPANY NO: 941446-P) ... DEFENDANT THE JUDGMENT OF Y.A. LEE SWEE SENG Parties and the Project [1] There are two Originating Summonses that are, by consent of the parties, heard together as one is the flip side of the other. The first Originating Summons ("the Setting Aside OS") where BM City Realty & 4 Construction Sdn Bhd ("BMCRC") is the Plaintiff and Merger Insight (M) Sdn Bhd ("MISB") is the Defendant is with respect to BMCRC's application to set aside the whole of an Adjudication Decision under s 15 of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA"). [2] The second OS ("the Enforcement OS") is with respect to MISB's application to enforce the Adjudication Decision under s 28 CIPAA against BMCRC where MISB is the Plaintiff and BMCRC is the Defendant. [3] The parties shall be referred to as BMCRC and MISB and when reference is made to them in the Adjudication, as Respondent or Non- Paying Party and Claimant or Unpaid Party respectively. [4] BMCRC as Employer under a PAM Contract 2006 (Without Quantities) had engaged MISB to be the Main Contractor to carry out a mixed development project in Seberang Perai ("Project") for a contract sum of RM104,600,000.00. [5] The Project consisted of a 23 storey building block complex comprising of shop offices, kiosks, motorcycles and car park, recreational facilities, swimming pool, jacuzzi and 3 blocks of business suites. 5 [6] The Contract between the parties consisted of: (a) MISB's submission of Tender dated 3 September 2013, Letter of Award dated 25 September 2013 to be read together with MISB's letter dated 16 October 2013 and BMCRC's Architect's letter dated 18 October 2013; and (b) Agreement and Conditions of PAM Contract 2006 Private Edition (Without Quantities) as adopted by the Parties. Problem [7] Disputes had arisen between the parties. MISB complained that it had not been paid on time for 3 Progress Claims and so pursued these as payment claims under the statutory adjudication scheme under CIPAA. [8] MISB also submitted 6 Re-calculation of Quantity Interim Progress Claims based on the actual measurement of quantities as reflected in the Construction Drawings given by BMCRC to MISB. [9] The Employer BMCRC on the other hand complained of the delay caused by MISB and terminated the employment of MISB as its Main Contractor by its letter of 11 April 2015. It cited the reason as that MISB had failed to proceed regularly and/or diligently with the Works and that 6 pursuant to Clause 25.2 of the PAM Contract, the employment of MISB was forthwith determined and terminated. [10] Essentially, the Adjudicator allowed MISB’s claim under Certificate No. 15, 16 and 17. He however dismissed the re-evaluated claims No. 1 to No. 6 and payment claims No. 15, 16, and 17 which were based on re-measurement and re-evaluated BQ items and the disputed, re-valued contract price as he found, inter alia, that he did not have the jurisdiction to determine the contract sum for the Contract without agreement from the parties to extend his jurisdiction and he did not have the power to review and revise any certificate or valuation of the parties under section 25(m) of CIPAA on a revised and disputed contract sum. [11] The learned Adjudicator's Decision delivered on 4 April 2016 with respect to the amounts payable is reproduced below in paragraph 52: "52. Adjudication Determination I now direct as follows: (a) [BMCRC] pay the sum of RM4,164,117.98 to [MISB] within twenty-one (21) days of the date hereof; (b) [BMCRC] pay the interest sum of RM148,701.23 on the sum of RM4,164,117.98 to [MISB] within twenty-one (21) days of the date hereof; 7 (c) [BMCRC] pay the sum of RM30,989.00 as the cost of Adjudication within twenty-one (21) days of the date hereof; (d) [BMCRC] pay the sum of RM27,000.00 as legal costs to [MISB] within twenty-one (21) days of the date hereof” [12] He also awarded interest at the simple interest rate of 4.2% per annum on the Adjudicated Sum from the due date for payment until the date of the Adjudication Decision. [13] Pursuant to section 18(1) of CIPAA, costs shall follow the event and the Adjudicator decided to award MISB cost of Adjudication in the sum of RM30,989.00 and legal costs of RM29,000.00. Payment Claim and Payment Response [14] The Payment Claim filed on 30 September 2015 was for the Total Interim Progress Claim Sum amounted to RM11,560,191.18 and that of the Total Re-Calculated Quantity Claim Sum amounted to RM4,735,900.99 making a total claim of RM16,296,092.17. [15] BMCRC in its Payment Response filed on 9 October 2015 raised the following as Defences: 1. That BMCRC as the Non-Paying party states that its liabilities and obligations to make payment to the Unpaid Party MISB are premised entirely upon the respective Interim Certificates issued 8 by the Architect and not on the Interim Claims made by the Unpaid Party; 2. That the Unpaid Party's Interim Claims (which were not accepted by the Quantity Surveyor and/or Architect for the construction Project) are ultra vires CIPAA; 3. That following the breach of contract by the Unpaid Party in regularly and diligently proceeding with the Works, its employment was duly determined and terminated vide a "Notice of Determination of Contract under Clause 25.2 of the Contract" dated 11 April 2015; 4. The Non-Paying Party pursuant to Clause 25.4(d) of the Terms and Conditions of the PAM Contract 2006 is not bound by any provisions of the Contract to make further payments to the Unpaid Party, including payments which have been certified but not yet paid when the employment of the Unpaid Party was determined; 5. The Unpaid Party's rights and entitlements to all or any unpaid monies under the Contract (which is not admitted) should and can only be properly calculated and determined upon the completion of the Works as defined and as provided under the provisions of the Terms and Conditions of the PAM Contract 2006; 6. The Works for the construction Project is, as at the date of the filing of the Payment Response, still uncompleted; 9 7. The contractual rights of the Unpaid Party to receive payment for any unpaid monies shall only arise upon the completion of the Works; 8. The Unpaid Party's claim under the Payment Claim is pre-mature; 9. The Non-Paying Party denies in entirety, the claims of the Unpaid Party stated in the Payment Claim; 10. The Non-Paying Party has lodged a police report (Ref: BK Mertajam /008955/15) against the Unpaid Party for cheating with the use of forged documents and the same is being investigated under sections 420, 468 and 470 of the Penal Code; 11. The Non-Paying Party reserves all its rights and remedies against the Unpaid Party. Prayers [16] The Employer BMCRC applied by the first OS to set aside the whole of the Adjudication Decision on the ground that the Adjudicator had exceeded his jurisdiction in holding that the 3 Certificates issued by the Architect were due for payment when under clause 25.4(d) of the PAM Contract 2006 the payment is deferred until the completion of Works upon determination of the employment of MISB by BMCRC. 10 [17] BMCRC also contended that there was a breach of natural justice when the Adjudicator held that there was no evidence to prove that a sum of RM1,824,805.60 had been paid by BMCRC direct to 3 Nominated Sub-contractors when in fact it had been paid and therefore the decision amounted to an unjust enrichment of the Unpaid Party. Principles Whether the Adjudicator had exceeded his jurisdiction in holding that the Payment Claims under the 3 certificates issued by the Architect were due when under clause 25.4(d) of the PAM Contract 2006 the payment is deferred until the completion of Works upon determination of the employment of MISB by BMCRC [18] The learned Adjudicator had found as a matter of fact that the mode of payment under the Terms and Conditions of the PAM Contract 2006 was that the Architect is to certify the Progress Claims submitted by the Main Contractor MISB within 14 days of receipt of the submission. Upon the Architect certifying the Progress Claims the Architect will issue the Interim Certificates which are due for payments by the Employer BMCRC within 30 days of the date of issuance of the Certificates. [19] The Architect of course would have to independently verify the Unpaid Party's submissions of Progress Claims to verify the scope of work done and the value of the work. The Architect did value the 11 Progress Claims No. 15, 16 and 17 and issued Payment Certificates 15,16 and 17. The Adjudicator found as a matter of fact in paragraph 46.1 as follows: "46.1 ...Payment Claim No. 15, 16 and 17 based on re- measurement and re-evaluated BQ items and the disputed, re- valued contract price are also not allowed for the grounds stated in my determination of the core issues. I have reviewed the Architect's Certificate No. 15,16 and 17 and I find that they were properly issued by the Architect based on the contract price. 46.2 There is no dispute that the Respondent did value claims No. 15,16 and 17 and issued payment certificates. These are as follows: a) Interim Certificate No. 15 Amount:RM2,026,441.27 dated 26/03/2015. Date for Payment 25/04/2015 (within 30 days from date of certificate) b) Interim Certificate No. 16 Amount: RM1,467,229.31 dated 9/04/2015. Date of Payment 8/05/2015 c) Interim Certificate No. 17 Amount: RM 670,447.40 issued on 30/09/2015. Date for payment 29/10/2015. _____________ Total RM4,164,117.98 12 47. In its Payment Response, the Respondent admits that its obligations to make payment to the unpaid party are premised on interim certificates issued by the Architect..." [20] Learned counsel for BMCRC pointed out that termination of the contract was on 11 April 2015 whereas Certificate 15 dated 26 March 2015 due on 25 April 2015 which is after the termination. Certificate 16 dated 9 April 2015 was due on 8 May 2015 which is also after termination. [21] As for Progress Claim 17, it was made on 31 July 2015 which was clearly after termination. The Adjudicator found as a matter of fact that it must be certified within 14 days. However it was not so certified until Certificate 17 was issued on 30 September 2015 and was due on 29 October 2015, when had it been issued timeously it would have been due much earlier and certainly before the filing of the Payment Claim. [22] The learned Adjudicator had done a comprehensive analysis on the payment provisions in the Letter of Award and the PAM Contract in paragraph 45.6 of his Decision and concluded as follows: “I determine that the payment provisions in the Letter of Award are applicable. The mechanism for payment is as follows: The Architect shall issue the payment certificate within 14 days from the date of 13 receipt of payment application and payment shall be within 30 days from the date of the Architect's certificate." [23] The Employer BMCRC relied on Clause 25.4(d) of the PAM Contract (2006) which it said, allowed it to withhold payments which have been certified but yet to be paid when the employment of the Main Contractor was determined on 11 April 2015 until the completion of the Works on the Project. [24] Clause 25.4(d) of the PAM Contract states: “...the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expense suffered by the Employer. Until after the completion of the Works under Clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment of the Contractor was determined. Upon completion of the Works, an account taking into consideration the value of works carried out by the Contractor and all cost incurred by the Employer to complete the Works including loss and/or expense suffered by the Employer shall be incorporated in a final account prepared in accordance with Clause 25.6.” (emphasis added) 14 [25] Learned counsel for BMCRC submitted that the learned Adjudicator had exceeded his jurisdiction: a) when he failed and/or neglected to appreciate that the ‘contractual due date of payment’ had been deferred by the issuance of the “Notice of Determination under Section 25.2 of the Contract” dated 11/4/2015 and the provision as set out under Section 25.4(d) of the PAM Contract 2006 (Without Quantities); and b) when he applied the Adjudication Process and/or Award under CIPAA to “override” and “substitute” the clear and unequivocal terms of the Contract Documents executed between parties that being the PAM Contract 2006 (Without Quantities). [26] The point that BMCRC wanted to drive home was that when the Contract was terminated on 11 April 2015, all the 3 Interim Certificates were not due for payment yet and so MISB as the Main Contractor would have to wait until all the Works have been completed, presumably now by the new Main Contractor appointed and final accounts prepared. It cannot be over emphasized that an Adjudicator derives his jurisdiction to decide on the issues raised by the Unpaid Party in its Payment Claim filed and the Non-Paying Party in the Payment Response filed. Clearly both the Payment Claim and the Payment Response taken together conferred jurisdiction on the Adjudicator to decide if the 3 Progress 15 Claims No. 15,16 and 17 submitted by the Unpaid Party should be allowed by the Adjudicator in the light of the Defence raised that upon the determination of the employment of the Unpaid Party, the Employer as the Non-Paying Party is not bound to make any further payments to the Contractor, including payments which have been certified but not yet paid when the employment of the Contractor was determined. [27] The Adjudicator identified this issue at paragraph 41.3 of the Adjudication Decision as one of the core issues to be decided by him i.e. “Is the Respondent entitled to rely on Clause 25.4(d) of the PAM Conditions of Contract not to pay on progress claim certified by its Architect?”. [28] The fact that BMCRC as Respondent in the Adjudication is unhappy with the decision of the Adjudicator in that it said the Adjudicator should have decided that no payments are due to the Claimant as contractually the parties have agreed under Clause 25.4(d) that the Employer (Respondent) is not bound to make any payments to the Main Contractor (Claimant), cannot mean that the Adjudicator, having jurisdiction to decide on the issue, had exceeded his jurisdiction by deciding against the Employer BMCRC. 16 [29] The Adjudicator may have arrived at a wrong interpretation of Clause 25.4(d) and thus arriving at a wrong decision, but that does not mean that he had exceeded his jurisdiction. [30] In fact the learned Adjudicator had given his reasons, which in the opinion of the Court, is both cogent and valid, for holding that so much of the Progress Claims as have been certified by the Architect, are due for payments in Interim Certificates No. 15, 16 and 17. [31] The learned Adjudicator gave his reasons as follows in his Adjudication Decision: "44.2 ...I am of the view that the statutory provisions under CIPAA override the provisions of clause 25.4(d). CIPAA provides a right to payment for work done and a mechanism to resolves disputes on payment. Termination of the contract is not a ground to refuse payment for work done or services rendered. I find that [BMCRC] for the reasons stated here, is not entitled to rely on clause 25.4(d) to refuse payments on interim certificates it had issued.” (emphasis added) [32] This Court has occasion to deliberate on this same issue in the case of Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd & Another 17 Case [2016] 5 CLJ 882. In determining the interpretation of clause 25.4(d) of the Contract, it was held as follows: "[77] In our case too, keeping in mind the mischief that CIPAA was designed to address i.e. to alleviate the cash flow problem in the construction industry for the unpaid party and to give a temporary finality to the payment claims I would follow an interpretation that would best promote the purpose and object of the Act than that which would not promote it in line with the requirement of Section 17A of the Interpretation Acts 1948 and 1967 which states that: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." [78] Further under s 35 CIPAA there is a Prohibition of Conditional Payment. S 35 reads as follows: "(1) Any conditional payment provision in a construction contract in relation to payment under the construction contract is void. (2) For the purpose of this section, it is a conditional payment provision when: 18 (a) The obligation of one party to make payment is conditional upon that party having received payment from a third party; or (b) The obligation of one party to make payment is conditional upon the availability of funds or drawdown of financing facilities of that party." [79] Mr Oon for the respondent submitted that by a "conditional payment" is meant the two definitions in s 35(2)(a) and (b) and nothing more. Mr Lam for the claimant submitted that it is open for the Court to interpret "conditional payment" to be wider than the two instances provided in s 35(2)(a) and (b) and to interpret it expansively to cover all cases of a conditional payment term which has the effect of defeating the purpose of the Act. [80] We are aware that when if the subsection had use the words "(2) For the purpose of this section, "conditional payment" means-" then we are left in no doubt that the 2 examples are exhaustive and permits of no other additional instances of conditional payment terms. If that subsection had used the word "includes" instead of "means" we would also be quite clear and confident that the examples given are by no means exhaustive. [81] However seeing that Parliament had chosen to state a general principle first in s 35(1) and has couched it to be all- encompassing as in the use of the expression "Any conditional 19 payment provision..." I would prefer a more expansive interpretation that would accord with the purpose of the Act. Parliament could have used the expression in s 35(1) as "A conditional payment provision within the meaning of subsection (2)...is void." It could be safely concluded that Parliament had left it to the Court to determine on a case by case basis as to whether a conditional payment term would be defeating the purpose of the Act. [82] For instance if a conditional payment term is merely that the unpaid party as contractor must show proof of payment to his subcontractors before the Employer needs to pay the contractor, such a condition might not be unreasonable and might be good in enhancing corporate governance and efficiency in contracts management. There might well be a myriad of conditions not all of which would be defeating the purpose of the Act. In fact the Explanatory Statement to the Bill reads: "The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow." (emphasis added) [83] On the contrary, a condition like Clause 25.4(d) has the effect, upon the termination of the contract, of postponing payment due until the final accounts are concluded and the works completed 20 and that would be defeating the purpose of the Act. Therefore such a clause is void and unenforceable and the Adjudicator may disregard it altogether." (emphasis added) [33] The position in Singapore is even more explicit in their Building and Construction Industry Security of Payment Act (Chapter 30B) ("SOPA") as it provides for no contracting out in s 36 as follows: "No contracting out 36. —(1) The provisions of this Act shall have effect notwithstanding any provision to the contrary in any contract or agreement. (2) The following provisions in any contract or agreement (whether in writing or not) shall be void: (a) a provision under which the operation of this Act or any part thereof is, or is purported to be, excluded, modified, restricted or in any way prejudiced, or that has the effect of excluding, modifying, restricting or prejudicing the operation of this Act or any part thereof; (b) a provision that may reasonably be construed as an attempt to deter a person from taking action under this Act. (3) The Minister may, for the purpose of subsection (2) (a), prescribe the type of provisions in any contract or agreement, 21 or any class thereof, which are deemed to have the effect of excluding, modifying, restricting or prejudicing the operation of this Act or any part thereof. (4) Nothing in this Act shall, except as provided in subsection (1), limit or otherwise affect the operation of any other law in relation to any right, title, interest, privilege, obligation or liability of a person arising under or by virtue of a contract or an agreement." (emphasis added) [34] Whilst we in Malaysia do not have a similar "No Contracting Out" provision, the terms of s 35(1) CIPAA are clear in that it casts a wide net to cover "Any conditional payment provision in a construction contract in relation to payment under the construction contract" and it expressly declared it to be "void". [35] The Singapore Legislature appreciates that it is not always easy to determine if certain contractual provisions has the effect of excluding, modifying, restricting or prejudicing the operation of their Act or any part thereof and so the Courts would have to determine this on a case by case basis as it comes before them under s 36(2)(a) SOPA. Likewise too the Minister in charged may prescribe the type of provisions that are deemed to have such an effect on their SOPA. This is on top of their prohibition of a "pay when paid provisions" under their s 9 SOPA. We 22 should likewise not restrict our s 35(2) two examples which are merely prohibiting "pay when paid provisions", as confining to just these 2 types of provisions that are prohibited. Any conditional payment provision in a contraction contract in relation to payment that has the deleterious effect of defeating the purpose of CIPAA has to be declared to be void. [36] For the scheme of statutory adjudication to work, having in mind the over-arching purpose of CIPAA, which is to facilitate payments for those down the chain of construction contracts for work done or services rendered, contractual terms which would be defeating the purpose of the Act should be struck down and the power and discretion is given to the Court to discern and declare if a certain contractual term would be prohibited under a statutory adjudication under CIPAA as being a conditional payment provision that is void and unenforceable under CIPAA. [37] Otherwise there would be nothing preventing an Employer under a construction contract, be it a Standard Form Contract like the PAM Contract for example, or otherwise, to rely on a contractual term to defer payment upon termination, rightly or wrongly done. That would have the effect of allowing a party to contract out of CIPAA which would have the effect of thwarting CIPAA and the mischief that CIPAA was intended to 23 address. Parliament does not act in vain and such a conditional payment provision is void and unenforceable under CIPAA. [38] Learned counsel for BMCRC cited the dicta below in Koh Siak Poo v Perkayuan OKS Sdn Bhd & Ors [1989] 3 MLJ 164 as a reminder to the Court that it must enforce the terms of a contract that parties have contractually agreed and perhaps more so when it is an industry's prescribed Standard Form Contract such as the PAM Contract (2006): “It is clear that the action by the appellant was to enforce the terms of the deed and the letter of guarantee. It was a claim based on the respondent’s contractual obligation arising from the deed and the letter of guarantee which are couched in words which are clear and unambiguous. Where the written contracts are clear and unambiguous the court should not go behind the written terms of the contract to introduce or add new terms to it.” [39] Again that is misplaced and misconceived. Parliament has on various occasions interfered with the freedom of contract to further its legislative purpose of protecting often times the weaker party and also consumer at large who might not have much of a bargaining power where the freedom to contract is concerned. 24 [40] One example is in S 8A of the Housing Development (Control and Licensing) Act 1966 which reads: "8A. (1) Notwithstanding anything contained in any agreement, a purchaser shall at any time be entitled to terminate the sale and purchase agreement entered into in respect of a housing development which the licensed housing developer is engaged in, carries on, undertakes or causes to be undertaken if - (a) the licensed housing developer refuses to carry out or delays or suspends or ceases work for a continuous period of six months or more after the execution of the sale and purchase agreement; (b) the purchaser has obtained the written consent from the end financier; and (c) the Controller has certified that the licensed housing developer has refused to carry out or delayed or suspended or ceased work for a continuous period of six months or more after the execution of the sale and purchase agreement." (emphasis added) [41] Another example of Parliament intervening in the freedom of contract of the parties can be seen in s 10P(3) of the Moneylenders Act 1951 as follows: 25 "(3) Any moneylending agreement which does not comply with the prescribed form shall be void and have no effect and shall not be enforceable." [42] Sometimes Parliament would use the device of prohibiting contracting out. For example in s 149 of the Strata Management Act 2013 we read: "(1) The provisions of this Act shall have effect notwithstanding any stipulation to the contrary in any agreement, contract or arrangement entered into after the commencement of this Act. (2) No agreement, contract or arrangement, whether oral or wholly or partly in writing, entered into after the commencement of this Act shall operate to annul, vary or exclude any of the provisions of this Act." (emphasis added) [43] Having appreciated the prophylactic properties of CIPAA as intended by Parliament, the learned Adjudicator was perfectly entitled to proceed to adjudicate on the 3 Certificates of Payments filed in the Payment Claim and to make a decision ordering the amount due to be paid. 26 Whether there was a breach of natural justice when the Adjudicator failed to consider the evidence of payment of RM1,824,805.60 made by the Employer to the Nominated Sub-Contractors [44] The Non-Paying Party, BMCRC, had in its “Adjudication Response” dated 14 January 2016 stated that the sum of RM1,824,805.60 had been paid by the Plaintiff to the Nominated Sub- Contractors (“NSCs”). It was submitted that this fact and/or statement had never been disputed, denied nor challenged by the Unpaid Party, MISB, in the Adjudication Proceedings. [45] BMCRC had again in its Affidavit In Support of the OS to set aside the Adjudication Decision, averred that very same fact supported by the Statutory Declaration made by the Nominated Sub-Contractors. [46] This fact, averment and/or statement was never disputed, denied nor challenged by MISB in its Affidavit affirmed by Wong Chin Fah on 23 May 2016. Learned counsel for BMCRC submitted that it is an undisputed fact that BMCRC had paid RM1,824,805.60 to the Nominated Sub-Contractors. [47] In support of this proposition BMCRC relied on the dicta below in Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 at page 286: 27 “Now, it is a well-settled principle governing the evaluation of affidavit evidence, where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted” (emphasis added) [48] Learned counsel for BMCRC concluded that: (a) since RM1,824,805.60 paid by the Plaintiff to the Nominated Sub- Contractors; (b) the Adjudication Decision is in error when the sum of RM4,164,117.98 [such which includes the RM1,824,805.60 paid by BMCRC to the Nominated Sub-Contractors] was awarded to MISB. [49] Learned counsel for BMCRC submitted that this Adjudication error if not corrected would lead to an ‘unjust enrichment’ to MISB in the Adjudication Decision which would amount to grave ‘denial of natural justice’. BMCRC prayed therefore that the whole of Adjudication Decision has to be set aside. [50] The learned Adjudicator had in his Adjudication Decision found as follows: 28 "48 ...The Respondent [BMCRC] has provided no evidence of payment to nominated sub-contractors. Perusal of certificates No. 15,16 and 17 under the items nominated sub-contractor shows no deductions made. I find that the Respondent [BMCRC] is not entitled to deduct this amount from the certified sums." [51] Strictly speaking this is a matter of assessment of the evidence before the Adjudicator and it is at the end of the day a finding of fact, which this Court should not intervene, as this is not an appeal. [52] This finding, based as it is on the evidence submitted, even if there be error in its finding, is not the subject matter of a setting aside. To bring it under the ground of a "breach of natural justice" would be disingenuous as the learned Adjudicator has come to a decision after looking at the documents presented before him by both sides. [53] Further, if the Respondent BMCRC had wanted to raise the fact of payment to NSCs in diminution of the Claimant MISB's Payment Claim, it should have been raised specifically in the Payment Response. However it was raised only in the Adjudication Response. [54] Reliance on the above dicta in Ng Hee Thong is misplaced as, if the finding of fact of the Adjudicator cannot be challenged based on ground of wrong assessment of evidence, then an advantage cannot be 29 had in a setting aside application based on a non-reply by the other side to a specific allegation raised, in this case payments to NSCs. [55] BMCRC further exhibited the Statutory Declarations of the 3 Nominated Sub-contractors all affirmed on 11 April 2016 stating the various amounts received direct from BMCRC under Claims No. 15 and 16 and the dates on which payments were received, which were mainly before the termination of the employment of MISB and before the commencement of the filing of the Payment Claim. [56] It is true that those Statutory Declarations were never produced at the Adjudication Proceeding. In fact, MISB came across the Statutory Declarations for the very first time through the exhibits of BMCRC's Affidavit in Support of the Setting Aside OS. I agree with MISB's counsel that this is not the appropriate forum for BMCRC to now show evidence of payment to the NSCs. It ought to have produced evidence of such payment during the Adjudication. [57] BMCRC further alleged that the Adjudicator in considering the issue of quantum ought to have exercise his powers under section 25(i) of CIPAA and seek clarification from the parties whether payment was made to the NSCs. 30 [58] In the first place, to properly raise the fact of payment to NSCs in diminution of the Unpaid Party's claim, the Non-Paying Party must raise it in the Payment Response under s 6 CIPAA. Then only would it be an issue that falls within the jurisdiction of the Adjudicator to decide for s 27(1) and (2) CIPAA clearly provides as follows: "27. Jurisdiction of Adjudicator 1) Subject to subsection (2), the adjudicator’s jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6. 2) The parties to adjudication may at any time by agreement in writing extend the jurisdiction of the adjudicator to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6." (emphasis added) [59] As it was not so raised and as there was no agreement in writing by both the parties, the Claimant and the Respondent, to extend the jurisdiction of the Adjudicator, then the Adjudicator cannot proceed to decide on whether a certain sum ought to be deducted from the sum claimed. Raising the matter of payment to the NSCs by BMCRC in its Adjudication Response is a tad too late for the Adjudicator to consider. [60] The question that the learned Adjudicator should have exercised his power under s 25(i) CIPAA to "Inquisitorially take evidence to 31 ascertain the facts and the law required for the decision" does not arise as, strictly speaking, it was not an issue for the learned Adjudicator to decide. [61] At any rate he did consider what was being presented by the Non- Paying Party and concluded that there was no evidence of such a payment having been made. [62] I agree with learned counsel for MISB that even if there was a failure to take into account of payment made to the NSCs, it is merely an error of findings of facts/law. Such an error does not require the Adjudication Decision to be set aside. There will not be a denial of natural justice if the Adjudicator had addressed all the right issues even in the wrong way. The adjudicator’s decision will nevertheless be temporary binding. It is only when the adjudicator has answered the wrong issues that his decision will be a nullity. See Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2001] 1 All ER (Comm) 1041; Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] 8 CLJ 728. [63] In Bouygues (UK) Ltd's case, the Court of Appeal in UK laid down the following tests with respect to determining if an adjudicator has acted within jurisdiction though arriving at a so-called wrong decision. 32 Alluding to the scheme of statutory adjudication in UK Chadwick LJ gave this helpful guide at pp 1047-1048: "26. The purpose of those provisions is not in doubt. They are to provide a speedy method by which disputes under construction contracts can be resolved on a provisional basis. The adjudicator's decision, although not finally determinative, may give rise to an immediate payment obligation. That obligation can be enforced by the courts. But the adjudicator's determination is capable of being reopened in subsequent proceedings. It may be looked upon as a method of providing a summary procedure for the enforcement of payment provisionally due under a construction contract. 27. The first question raised by this appeal is whether the adjudicator's determination in the present case is binding on the parties—subject always to the limitation contained in s 108(3) and in paras 4 and 31 of the Model Adjudication Procedure to which I have referred. The answer to that question turns on whether the adjudicator confined himself to a determination of the issues that were put before him by the parties. If he did so, then the parties are bound by his determination, notwithstanding that he may have fallen into error. As Knox J put it in Nikko Hotels (UK) Ltd v MEPC plc [1991] 2 EGLR 103 at 108, in the passage cited by Buxton LJ, if the adjudicator has answered the right 33 question in the wrong way, his decision will be binding. If he has answered the wrong question, his decision will be a nullity. 28. I am satisfied, for the reasons given by Buxton LJ, that in the present case the adjudicator did confine himself to the determination of the issues put to him. This is not a case in which he can be said to have answered the wrong question. He answered the right question. But, as is accepted by both parties, he answered that question in the wrong way. That being so, notwithstanding that he appears to have made an error that is manifest on the face of his calculations, it is accepted that, subject to the limitation to which I have already referred, his determination is binding upon the parties." (emphasis added) [64] I have no doubt if these evidence in the Statutory Declarations had been before the learned Adjudicator, his decision would have been different. [65] I had asked learned counsel for MISB to confirm if these payments of RM1,824,805.60 had indeed been received by the 3 NSCs, for if they had, then there is no need for MISB to pay these 3 NSCs from the undeducted amount decided by the Adjudicator to be paid by BMCRC to MISB. 34 [66] Learned counsel for MISB on the adjourned date for decision of this Court was candid in confirming to this Court that from their investigation, the said amount had indeed been paid by BMCRC direct to the 3 NSCs. [67] MISB through its counsel also consented to have this sum deducted from the amount decided by the learned Adjudicator to be paid by BMCRC to MISB, leaving a balance sum of RM2,339,312.38 (RM4,164,117.98 - RM1,824,805.60) to be paid by BMCRC to MISB. [68] Both parties were also able to agree on the reduced interest amount that should correspondingly be paid by BMCRC to MISB which is RM77,471.71 with BMCRC maintaining that it would still want to reserve its rights to appeal on the point of excess of jurisdiction as set out above. [69] This Court therefore with the consent of the parties had made the necessary orders set out below. [70] It must be stressed that ordinarily, if not for the consent of the parties, this Court would not be able to set aside part of an Adjudication Decision or vary it as there is no provision in law under CIPAA allowing for it to be done on a setting aside application. 35 [71] This Court, in a case where there is incontrovertible evidence of payment having been made direct to an NSCs, whether disclosed at Adjudication or in a setting aside application, may allow only so much of the adjudicated amount that is the amount paid direct to the NSCs to be stayed. [72] The powers of the Court to stay an Adjudication Decision is provided in S 16(1) CIPAA as follows: "16 Stay of Adjudication Decision 1) A party may apply to the High Court for a stay of an adjudication decision in the following circumstances: a) An application to set aside the adjudication decision under section 15 has been made; or b) The subject matter of the adjudication decision is pending final determination by arbitration or the court. 2) The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit." (emphasis added) [73] As can be seen, the High Court may make any other order as it thinks fit, and that must necessarily include an order that would result in a fair and just payment of the adjudicated amount or so much of it as 36 should be deducted as there is incontrovertible evidence of payment having been made by the Respondent direct to the NSCs. [74] If judgment is to be entered pursuant to s 28 CIPAA then judgment may be entered less the amount stayed by the Court. Even if there is no amount stayed by the Court though there is evidence of payment having been made, there is nothing preventing the Court when the Claimant applies for enforcement of the adjudicated sum, for the Court to allow enforcement of only so much of the adjudication amount that has not been paid to the Claimant after taking into consideration the amount paid by the Respondent to the Claimant's sub-contractors. S 28 CIPAA provides as follows: "28. Enforcement of adjudication decision as judgment 1) A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court. 2) The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable. 3) The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court." (emphasis added) 37 [75] If judgment had already been entered pursuant to s 28 CIPAA, then in an application to stay the judgment, this Court may be inclined to stay so much of the judgment sum that is represented by the amount already paid direct to the NSCs. [76] As the Adjudication Decision is only of temporary finality, the Non Paying who claims that such a payment has been made to NSCs must immediately commence an action in litigation or arbitration to recover a double payment made, once directly from an Employer to NSCs and another time to make the same payment to the Main Contractor pursuant to the Adjudication Decision. Whether the Adjudicator had acted in excess of jurisdiction in granting costs to the Claimant and the quantum of the costs [77] The Unpaid Party MISB as Claimant had claimed for costs of the Adjudication and legal costs as well in its Payment Claim. The Adjudicator clearly had acted within its jurisdiction in awarding costs for Section 18(1) of CIPAA confers this power on him: “The adjudicator, in making the adjudication decision in relation to costs of the adjudication proceedings shall order the costs to follow the event and shall fix the quantum of costs to be paid.” (emphasis added) 38 [78] I agree with learned counsel for MISB that the Adjudicator has the discretion to decide on the quantum of costs by taking into account of all relevant circumstances including those set out in Regulation 7 of the Construction Industry Payment & Adjudication Regulations 2014. The relevant circumstances include: (a) the complexity of the claim or matter arises from the claim and the difficulty or novelty of the issues relating to the claim; (b) specialized skill, knowledge and responsibility of, and time and labour expended by, any party to the dispute, its consultant, expert or representatives; (c) the preparation of documents in the adjudication proceedings; and (d) the amount or value of the adjudication claim. [79] As for the meaning of “Costs to follow event” it means that the unsuccessful party has to pay the costs to the successful party in the Adjudication Proceedings. See Malaysian Newsprint Industries Sdn Bhd v Bechtel International, Inc & Anor [2008] 5 MLJ 254. [80] Given that the Adjudicator had decided in favour of MISB and MISB was the successful party in the Adjudication proceeding, MISB is statutorily entitled to costs and the Adjudicator has the jurisdiction to determine the quantum of costs on such basis as he thinks fit. Further, 39 parties were given opportunity and had addressed the Adjudicator on the issue of costs. [81] The Adjudicator had reasoned as follows: "51.2 The Claimant has sought legal costs of RM51,400.00. I have considered the matters and issues brought up by the Parties, the complexity of the Adjudication Claim and Adjudication Response and the degree of difficulty of the issues raised, special skills required, knowledge, time and labour expanded. I find that the sum of RM27,000.00 is a fair assessment of the Claimant's legal costs. The Claimant's claim for disbursements is not substantiated. The Parties each had paid the sum of RM30,300.00 toward the Adjudicator's fees and the KLRCA administrative costs. The Claimant is entitled to the reimbursement of RM30,300.00 from the Respondent. The Claimant also can claim reimbursements of the sum of RM689.00 inclusive of GST for Adjudication registration and Adjudicator appointment fees. The total sum of RM30,989.00 shall be described as the cost of Adjudication." [82] Where quantum of costs is concerned, it is something within the discretion of the Adjudicator unless it can be shown that he has acted on 40 wrong principles. This is certainly not an area for this Court to interfere and clearly not a case where the learned Adjudicator had acted in excess of his jurisdiction. Whether the Adjudicator had acted in excess of jurisdiction in his failure to consider the issue of set-off for LAD claimed by BMCRC [83] BMCRC further alleged that the Adjudicator has acted in excess of his jurisdiction in failure to consider the issue of set-off for damages. This allegation is unsubstantiated. The issue in relation to BMCRC’s alleged set-off for Liquidated And Ascertained Damages (LAD) was identified, dealt with and dismissed by the Adjudicator at paragraph 45.7 of the adjudication decision : “LAD Set Off in Adjudication Response 45.7 The Respondent’s Notice to exercise its right of set off or Liquidated and Ascertained Damages (LAD) is found in its Adjudication Response. Clause 22.1 of the Conditions of Contract clearly provides that the imposition of LAD shall not be taken into account by the Architect in the issue of payment certificates and is not subject to set off procedures under Clause 30.4 and Adjudication. The Clauses referred to under Clause 30.4 do not cover LAD. 41 A claim for set off, even if it can be claimed under the contract requires the Respondent to comply with CIPAA by making a statutory claim as an unpaid party. The Respondent has not done so. The alleged set off therefore cannot be considered in this Adjudication and is disallowed.” [84] In the first place for the Adjudicator to properly consider the issue of LAD claimed as a set-off, BMCRC must raise it in its Payment Response under s 6 CIPAA so as to allow the Adjudicator to assume jurisdiction in determining the issue before him. [85] It was not raised as a specific Defence of set-off but only raised for the first time in the Adjudication Response. That simply would not do. At any rate, I agree with the Adjudicator that it is not to be deducted from the Payment Certificates by the Architect as contractually agreed. [86] Whilst the Adjudicator had stated that BMCRC may proceed to file a separate statutory adjudication claim as an unpaid party, this Court would highlight that the LAD claim must first qualify to be a payment claim within the meaning of "payment" under s 4 of CIPAA and within the meaning of a "payment claim" under s 5 CIPAA. 42 [87] "Payment" under s 4 CIPAA is defined as "a payment for work done or services rendered under the express terms of a construction contract." [88] A "payment claim" under s 5(2)(a) includes the due date for payment of the amount claimed and (c) a description of the work or services to which the payment relates. [89] Clearly an LAD claim is a damages claim which would not fit into the definition of a "payment claim" that is susceptible to adjudication under CIPAA. It is undeniably and indisputably a claim for damages for breach of contract in failure of the contractor to complete on time by the completion date and it has to be pursued by way of arbitration or litigation and not an adjudication under CIPAA. Whether the Adjudicator had failed to act independently or impartially [90] Under s 15(c) CIPAA, an Adjudication Decision may be set aside on ground that the Adjudicator has not acted independently or impartially. [91] BMCRC had sought a declaration that the Adjudication Decision be declared null and void on the ground that the Adjudicator had not 43 acted independently or impartially. BMCRC did not indicate and substantiate its allegation therein. It is therefore a bare averment as pointed out correctly by the learned counsel for MISB. [92] It is more an attempt at clutching at straws to try to set aside the Adjudicator's Decision should the other 2 grounds of excess of jurisdiction and breach of natural justice fail. [93] BMCRC may disagree with the Adjudicator and even be convinced that the Adjudicator's Decision is wrong in law, but that is no justification for accusing the Adjudicator of having failed to act independently and impartially. [94] Such a ground should not be lightly latched on as reflecting a lackadaisical attitude in setting aside an Adjudicator's Decision considering the seriousness of the accusation that goes to the character of the Adjudicator. [95] Under s 24 CIPAA the Adjudicator shall at the time of the acceptance of appointment as an adjudicator make a declaration in writing that - a) There is no conflict of interest in respect of his appointment; 44 b) He shall act independently, impartially and in a timely manner and avoid incurring unnecessary expense; c) He shall comply with the principles of natural justice; and d) There are no circumstances likely to give rise to justifiable doubts as to the adjudicator’s impartiality and independence. (emphasis added) [96] An affidavit in support of the ground under s 15(c) CIPAA must descend to particulars of failure of the Adjudicator to comply with s 24(a)-(e) CIPAA such as the Adjudicator's failure to disclose a conflict of interest in the matter before him or that because of family relationship, familiar relationship or financial relationship with the parties or their counsel or firm appearing before him. It may perhaps arise from the Adjudicator's unilateral communication with one party, excluding the other party altogether as in WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd & Other Case [2015] 1 LNS 1236. It may arise in a case where the Adjudicator was involved in another adjudication involving one of the parties arising from the same project as was the case of Beumer Group UK Ltd v Vinci Construction UK Ltd [2016] EWHC 2288 (TCC). [97] Bereft of that, the accusation would not bite and must be dismissed for being scurrilous and not deserving any serious 45 consideration. It might be apposite in closing to echo the advice of Fraser J of the TCC in UK in Beumer Group UK Ltd (supra) as follows: "The Law 12. It is trite law that adjudication is a speedy process designed only to provide what is called “interim finality” on construction disputes. Parliament intended that the parties should be given a quick answer, and that quick answer should be binding on the parties until the dispute, whatever it may be, is resolved finally either by litigation or arbitration. It has been said in a case concerning what is called the statutory Scheme, namely the statutory instrument entitled the Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”), by Chadwick LJ in paragraph [86] of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 [2006] BLR 15 that: “The need to have the 'right' answer has been subordinated to the need to have an answer quickly.” Although made in a case under the Scheme, that statement is of wide application to adjudications generally, whether under the Scheme or otherwise. Adjudicators' decisions will be enforced by the court by summary judgment regardless of errors of fact and/or law by the adjudicator. Aggrieved losing parties can and should 46 comply with the adjudicator's decision, as long as that decision was made by an adjudicator with jurisdiction over the dispute, who has conducted the adjudication fairly and in accordance with the rules of natural justice. 13. The rules of natural justice have two limbs, and these are firstly, that a party must have an opportunity to present his own case and meet the case against him, and secondly, that the matter is decided by an impartial tribunal. It is the second of those two limbs that concerns bias, both actual and apparent. 14. The submissions concerning natural justice relied upon by Vinci encompass both limbs of the rules of natural justice, although the first limb is emphasised more than the second. Chadwick LJ in paragraph [85] of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 [2006] BLR 15 stated that a decision should be enforced: “…unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair”. In paragraph [87] he continued: “To seek to challenge the adjudicator's decision on the ground that he has exceeded his jurisdiction or breached the rules of 47 natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense…” The proper course is to comply with the decision – which is after all only an interim solution – and resolve the dispute with finality if the losing party considers it is wrong." (emphasis added) Pronouncement [98] Therefore, for the Enforcement OS, the Court allowed judgment to be entered for the balance sum of RM2,339,312.38 and interest as decided by the adjudicator shall run on this balance sum from the dates stated which parties agree to be the sum of RM77,471.71. Interest thereafter shall run at 5% per annum from date of judgment to realization. The rest of the Adjudicator's decision remains and so judgment was correspondingly entered for the Adjudication Costs and Legal Costs of RM30,989.00 and RM27,000.00 respectively. [99] As for the Setting Aside OS, by consent the Adjudicator's Decision was thereby also varied accordingly such that the sum as decided by the learned Adjudicator was reduced accordingly taking into consideration the sum of RM1,824,805.60 already paid to the Nominated 48 Sub-contractors, leaving a balance of RM2,339,312.38 and reduced interest of RM77,471.71 to be paid from the payment due date. [100] I had exercised my discretion that in the circumstances of this case each party shall bear its own costs for both OS. Dated: 23 September 2016. - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff in : KL Chan, PL Lim, KK Yap and OS WA 24C-11-04/2016 : BK Ong and for the Defendant in : OS WA 24C-22-05/2016 : (Messrs JB Lim & Associates) For the Plaintiff in : Ashok Kumar, Jocelyn Lim OS WA 24C-22-05/2016 : and Eg Kaa Chee and for the Defendant in : OS WA 24C-11-04/2016 : (Messrs Skrine) Date of Decision: 27 June 2016.

Tika 2.6.0

WA-24C-45-06/2016

PLAINTIF Scomi Transit Projects Sdn Bhd DEFENDAN Prasarana Malaysia Berhad

13/09/2016

YA DATO' LEE SWEE SENG

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-45-06/2016 In the Matter of a Kuala Lumpur Monorail Fleet Expansion Project Contract Agreement dated 3.6.2011 between Prasarana Malaysia Berhad and Scomi Rail Bhd; And In the Matter of a Novation Agreement dated 3.6.2011 between Prasarana Malaysia Berhad, Scomi Rail Bhd and Scomi Transit Projects Sdn Bhd; And In the Matter of a First Supplemental Agreement dated 16.4.2014 between Prasarana Malaysia Berhad and Scomi Transit Projects Sdn Bhd; And In the Matter of a Second Supplemental Contract dated 15.4.2015 between Prasarana Malaysia Berhad and Scomi Transit Projects Sdn Bhd; And In the Matter of Section 11(1)(h) of the Arbitration Act 2005; And In the Matter of Order 69 of the Rules of Court 2012; 2 And In the Matter of Section 51 of the Specific Relief Act 1950 BETWEEN SCOMI TRANSIT PROJECTS SDN BHD (COMPANY NO: 908438-K) ... PLAINTIFF AND PRASARANA MALAYSIA BERHAD (COMPANY NO: 467220-U) … DEFENDANT THE JUDGMENT OF Y.A. LEE SWEE SENG [1] Until people can travel by the "folding of space" as a science fiction would have us imagine, it is still the transportation from one place to another by roads, rails, by sea and air transport. A reliable and efficient mode of public transportation in a capital city is important both for commerce and industry, for work and play, for its people and for tourists as well. It is part of the factors that go into determining how livable a city is - convenience, comfort and connectivity. 3 [2] There has been for some time now the Kuala Lumpur Monorail connecting some important locations in the Kuala Lumpur city from the connecting hub of KL Sentral through the iconic Jalan Imbi/Jalan Bukit Bintang and even passing by the nostalgic Chow Kit. The experience of being sardine-packed with only standing space during rush hours is a common one. It would not be an exaggeration to say that what started off as a system of seamless connectivity of transport is now bursting at the seams. Hence the move to expand the number of trains by 12 more four- coach trains and also extending the number of stations. Project [3] The Defendant and Scomi Rail Bhd on 3 June 2011, entered into the Kuala Lumpur Monorail Fleet Expansion Project Contract (“Principal Contract”) for the purposes of undertaking the engineering, procurement, construction and commissioning and provision of warranty (“Works”) for the Kuala Lumpur Monorail Fleet Expansion Project (“the Project”). On the same day, the Defendant, Scomi Rail Bhd and the Plaintiff entered into a Novation Agreement where all the rights and liabilities of Scomi Rail Bhd under the Principal Contract were novated to the Plaintiff. Along the way the Plaintiff and the Defendant (“the Parties”) entered into other 4 agreements during the course of the Principal Contract with the aim of an orderly completion of the Works. The relevant agreements are the First Supplemental Agreement dated 16 April 2014 (“FSA”) and the Second Supplemental Contract dated 15 April 2015 (“SSC”). The Principal Contract, the FSA and the SSC are collectively referred to as the "Contract". Problem [4] There were considerable delays in construction and commissioning of the Works. The Principal Contract being in June 2011, the Completion was supposed to be in July 2013. The Defendant has only delivered 5 out of 12 trains so far. [5] The Defendant as Employer, issued a Notice of Termination dated 9 June 2016 to the Plaintiff as Contractor. It was a term of the Principal Contract in Clause 4.2.1.2 that the agreed Performance Bond must be kept valid until the completion of the Works and the remedying of any defects. [6] The Plaintiff did not renew the Performance Bond in spite of reminders by the Defendant. The Defendant by its letter of 25 April 2016 requested the Plaintiff to renew the Performance Bond, failing which it 5 would exercise its right under Clause 15.2 of the Principal Contract to terminate the Contract. However, instead of extending the Performance Bond which had expired on 25 April 2016, the Plaintiff wrote on 18 May 2016 to the Defendant requesting for a waiver of the requirement of the Performance Bond until 30 June 2016. This request was rejected by the Defendant pursuant to its letter dated 2 June 2016. [7] The Defendant's Notice of Termination to the Plaintiff was pursuant to clause 15.2.2 of the Principal Contract by virtue of the Plaintiff’s failure to comply with its obligation under clause 4.2.1.2 of the Principal Contract to maintain and renew the performance bond so that it remained in full force and effect until the Plaintiff has fully executed and completed the Works. [8] The Plaintiff contended that the Defendant's termination of the Contract was unconscionable and unlawful and that the Defendant was at all material time, estopped from terminating the Contract as the delay was attributable to the Defendant and further that parties were negotiating a fresh Remedial Plan for the completion of the remaining stations and the delivery and commissioning of the balance 7 trains of coaches. 6 Prayer [9] The Plaintiff rushed to Court on 20 June 2016, filing Enclosure 4 and 5, essentially seeking to injunct the Defendant from terminating the Contract pending arbitration on the ground that the Defendant’s Notice to Terminate is unlawful, unconscionable and issued in bad faith and therefore invalid in fact and law. The relevant provision under the Arbitration Act 2005 ("AA 2005") is that of s 11(1)(h) under which the Plaintiff's application is made where a High Court is empowered to grant an interim injunction to a party to an intended arbitration or arbitration, either before or during the arbitral proceedings, pending the disposal of the arbitration. [10] Enclosure 4 and 5 are the Originating Summons ("OS") and the Notice of Application respectively and as the prayers for Enclosure 5 are subsumed into the main OS prayers, both Enclosures were by the consent of the parties heard together. [11] This Court had earlier heard Enclosure 5 on an ex-parte basis and granted the said injunction subject to the usual undertaking by the Plaintiff on damages. This hearing before the Court now is for the inter-parte 7 hearing of Enclosure 5 and the full hearing for Enclosure 4, which decision of the Court will fully dispose of the whole of the OS in Enclosure 4. [12] The Plaintiff submitted that the following serious questions arise for consideration at the arbitration of this matter for which a Notice to Arbitrate has been issued: 1. Whether the Defendant as the party in breach in failing to fairly and properly value and pay for work done by the Plaintiff and to consider and approve extension of time was entitled to take advantage of that breach to terminate the contract. 2. Whether the parties had agreed to extend the time for completion by way of a Remedial Plan with outstanding issues such as extension of time and variation claims to be resolved by an independent 3rd party or by arbitration. 3. Was the Defendant under a duty in law to cooperate so that the Remedial Plan could be finalized? 4. Having continued to negotiate with the Plaintiff to work out a Remedial Plan to complete the Project even after expiry of the Performance Bond, was the Defendant estopped from relying on the alleged failure to provide a Performance Bond as a ground to terminate? 8 5. On the true construction of clause 4.2.1.2 of the Contract whether the Plaintiff was at all in breach where the duration of the bond could not be fixed because time for completion of the work under the Contract was at large and the parties were still in negotiation to fix an extended completion date. 6. Whether, having reached an agreement as to how the parties’ disputes were to be resolved, the Defendant was under an obligation of good faith in all continuing discussions and negotiations, so as to achieve the agreed intentions of the parties. 7. Whether that duty of good faith was breached where the Defendant; (a) Abruptly and unconscionably threatened termination when details of a Remedial Plan were still under discussion. (b) Acted in bad faith, in walking away from an agreed settlement plan. [13] It further took the stand that damages would not be an adequate remedy and that the balance of convenience, taking into account the public interest element of the Project, would lean in favour of the Plaintiff. [14] The Defendant opposed Enclosures 4 and 5 broadly based on the following main grounds as reproduced from its submissions: 9 1. The performance bond is a critical and key security feature of a typical infrastructure contract. There is no justification for dispensing with it at all times while the Works remains unperformed. The Defendant is independently entitled to terminate the Principal Contract read with the FSA and SSC for failure by the Plaintiff to renew the Performance Bond. 2. Consequently, it is the Defendant that will be prejudiced by the lack of a renewed/extended Performance Bond that is in place throughout the performance of the Works. Given the Plaintiff’s financial position, it is simply beyond the Plaintiff’s ability to compensate the Defendant in damages. An injunction should accordingly be refused. 3. The Plaintiff had failed to satisfy the test and requirement in Section 11(1)(h) AA 2005. 4. An injunction under Section 11(1)(h) AA 2005 cannot and should not be granted for the purpose of preventing the termination of a building, infrastructure, engineering, technology contract: (a) A contract of this nature cannot be subject to a decree of specific performance for the many reasons in law and equity, including but not limited to the provisions of the Specific Relief Act 1950 ("SRA") and the principles of equity. 10 (b) The trust and confidence required for such a decree are plainly and obviously not present and hence no specific performance can be decreed. (c) No injunction can be issued, even under any interim preservation jurisdiction under Section 11(1)(h) of the AA or under law generally under these circumstances. (d) The Plaintiff’s claims under the Variation Order ("VO") and Extension of Time ("EOT") Claims would rightly and easily be characterized as totally and purely monetary in nature and the Plaintiff has no compelling reason to insist that termination rights arising from other separate, unconnected clear breaches of contract must be restrained. (e) The Plaintiff’s claim under the Contract is only monetary in the sense that if it is demonstrated that the Defendant was not entitled to terminate the Contract under clause 15.2 of the Principal Contract (in respect of which the Defendant unequivocally says it can lawfully terminate), the Plaintiff is entitled to an assessment of damages relating to the losses (directly foreseeable and other related losses) that it would be 11 contractually entitled had it been allowed to perform the remaining unperformed portion of the Works. (f) Damages therefore constitute an adequate remedy and an injunction must on well-settled principles be refused. 5. There is absolutely no legal or factual link between the resolution of the Plaintiff’s EOT and VO Claims with the Plaintiff’s separate, independent obligation to ensure that at all times, there is a valid, effective and enforceable Performance Bond in place while the Works are being executed. 6. The Plaintiff has been paid in full for all progress payments submitted for all Milestones to date and cannot be heard to claim that alleged failure to pay amounts due under the Contract is purportedly the reason why the Plaintiff cannot renew or extend the Performance Bond. 7. Even on orthodox principles relating to interim injunctions, the balance favours the Defendant. An injunction will constitute an interference with an infrastructure project of a public nature for the greater good of the inhabitants of the Klang Valley. 12 8. Further or alternatively, the Defendant will be prejudiced because the undertaking in damages that the Plaintiff purports to offer is illusory and not worth powder and shot. 9. Alternatively, in the event this Court is in favour of preserving the status quo by granting the injunction in favour of the Plaintiff, the Court should make a consequential order that the Plaintiff either: (a) Furnishes the extended Performance Bond as per the terms of the Contract; or (b) Makes payment into Court of an amount equivalent to the amount of the Performance Bond with parties having the liberty to apply to Court, inter alia, for the utilization, release and/or adjustment of the amount deposited (in whole or in part) in the same manner as provided in the contract for the utilization, release and/or adjustment of the amount of the Performance Bond. Preliminaries [15] The Plaintiff’s application is made pursuant to Section 11(1)(h) of the AA 2005 which states: “Arbitration agreement and interim measures by High Court 13 11.(1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for: .... (h) an interim injunction or any other interim measure.” [16] The interim injunction is sought to prevent the Defendant from terminating the Contracts until the dispute between the Parties is disposed of in the arbitration. Even though arbitral proceedings has not yet commenced, it was held in Bumi Armada Navigation Sdn Bhd v Mirza Marine Sdn Bhd [2015] 5 CLJ 652 that Section 11(1) allows for an interim injunction to be granted even before arbitral proceedings have commenced. With that I agree. [17] In the case of Plaza Rakyat Sdn Bhd v Datuk Bandar Kuala Lumpur [2012] 7 MLJ 36, the Court in hearing an application for interim injunction pending arbitration under Section 11 of the AA 2005, adopted the elements laid down in the case of Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193. [18] The principles laid down in of Keet Gerald Francis are as follows: 14 (a) The judge must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried; (b) if so, he must weigh the harm the that the injunction would produce by its grant against the harm that would result from its refusal; (c) the judge must remember that the remedy is a discretionary remedy intended to produce a just result. Accordingly the judge must take into account matters such as whether other remedies such as damages would be adequate alternative remedy. Principles Whether there are serious questions to be tried in the Defendant terminating the Contract for breach by the Plaintiff is its failure to extend the Performance Bond after it had expired on 25 April 2016. [19] The requirement for the renewal of the Performance Bond is provided for under Clause 4.2.1.2 of the Principal Contract which states: “4.2.1 Performance Bond ... 4.2.1.2 The Contractor shall maintain and renew if necessary the Performance Bond so that it shall remain in full force and effect until the Contractor has executed and completed the Works and 15 remedied any defects. In the event that an Extension of Time for the Completion is granted, then the validity of the Performance Bond shall be extended correspondingly to take into account the extension period granted. For the avoidance of doubt, the Performance Bond shall be valid and effective until the issuance of the Performance Certificate.” (emphasis added) [20] The Plaintiff said it had obtained the requisite Performance Bond for the Project on 3 January 2011 and consistently maintained the Performance Bond required under the Principal Contract and procured the extensions on 17 March 2014 and 17 April 2014. That of course is what is contractually required and nothing commendable if what the Plaintiff was looking for was for some credit and commendation to be given to it. [21] It is factually true that the last extension of the Performance Bond extended the bond until 25 April 2016. The Plaintiff was seeking sympathy and support if not from the Defendant, then from this Court, when it said in a rather sad tone that it fully intended to extend the Performance Bond but the financial institutions financing the Project informed it that they would consent to the new financing arrangements in favour of the Plaintiff and extend the Plaintiff’s facilities including the Performance Bond once a 16 satisfactory draft Supplementary Agreement be made available to them by 15 June 2016. This Supplementary Agreement was supposed to contain the agreement of the Parties on a Remedial Plan forward. [22] The Plaintiff, through its learned counsel, submitted with some exasperation, that the Defendant was fully informed of this but nevertheless demanded that the Performance Bond be extended knowing that the Plaintiff needed the Remedial Plan to be put in place before the banks could provide the extension of the requisite bond. The Notice to Terminate stopped the Plaintiff being able to obtain the bond. The Plaintiff further argued that these issues will eventually be canvassed before the Arbitrator and it would not be appropriate for this Court to pronounce on their merits. See Keet Gerald. [23] The Plaintiff further contended that the Defendant is in breach of the Principal Contract and the SSC in issuing the purported Notice to Terminate which inter alia, amounts to a repudiation and accordingly a breach of the Contract in particular the Principal Contract and the SSC (“the Dispute”). The Plaintiff further explained that the aforesaid wrongful termination by the Defendant is now the subject of reference to the Dispute Adjudication Board ("DAB") under Clause 20.2 and 20.4 of the Principal 17 Contract which is integral and a necessary step to arbitration. The Plaintiff fully intends to refer the current dispute to arbitration bypassing the DAB process, to expedite resolution of the disputes. Pending arbitration, the Plaintiff argued that an interim injunction restraining the Defendant from acting on the purported Notice of Termination so that the status quo may be maintained. The Plaintiff concluded that the threatened termination vide the purported Notice to Terminate by the Defendant was unconscionable, done in bad faith, was unlawful and is a repudiatory breach of the Contract. The Plaintiff castigated the Defendant's conduct of abruptly and without justification ignoring the settlement brokered through the Ministry of Transport on or about 26 April 2016. In support of its proposition that where parties have agreed to resolve a dispute by discussion an obligation to do so in good faith is implied, learned counsel for the Plaintiff cited the case of Emirates Trading LLC v Prime Mineral Experts Pte Ltd [2015] 1 WLR1145. [24] This Court must at the outset, dispel the mistaken notion that each time an applicant raises a question of validity of termination, that issue automatically becomes a serious issue to be tried and hence, justifying the preservation of the status quo by the grant of an injunction. If that be the law, then it can easily become a weapon of oppression in the hands of 18 unscrupulous applicants for an Injunction to restrain termination. That cannot and has not been the law. The Court must always enquire into whether there is any basis for the termination and if there is, then the Court may conclude that there is no serious issue to be tried and dismiss the injunction application. [25] The Defendant could not emphasize enough that until the Plaintiff has completed the Works and remedied the defects, the Plaintiff has a continuing contractual obligation to renew the Performance Bond and if it should fail to renew the bond then the Defendant shall be entitled to terminate the Contract under clause 15.2.1(a) of the Principal Contract. [26] Clause 15.2.1(a) of the Principal Contract reads: “Without prejudice to the other rights and remedies contained in these Conditions and/or the Contract, the Employer shall be entitled to terminate these Conditions and/or Contract if the Contractor: (a) fails to comply with Clause 4.2 (Performance Security) or with a notice under Clause 15.1 (Notice to Correct) to correct a failure to a material obligation under the contract” [27] Clause 15.2.2 of the Principal Contract reads: 19 “In any of these events or circumstances, the Employer may, upon giving 14 days’ notice to the Contractor, terminate the Contract and expel the Contractor from the Site. However, in the case of sub- paragraph (e) or (f), the Employer may by notice terminate the Contract immediately.” [28] Whilst it is not necessary for this Court to definitively decide at this stage, on the validity of the termination of the Contract by the Defendant, this Court may nevertheless decide whether for the purpose of the injunction applied for, the issue of the termination of the Contract is a serious question to be tried. Therefore when faced with diametrically opposing affidavits with each side espousing its entrenched position, this Court must eschew any approach that unquestioningly and uncritically accept everything said merely because it is contained in an affidavit affirmed under oath. It is entitled to weigh and consider the relative probabilities of the positions posited by the parties, rejecting the preposterous and that which is plainly indefensible on the one hand and reserving for consideration at another forum at trial or arbitration the plausible and probable on the other hand. The salutary and sagacious speech of Lord Diplock in the Privy Council case of Eng Mee Yong & Ors 20 v Letchumanan [1979] 2 MLJ 212 at page 217D-F would speak to our present situation: “Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as he "may think just" the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth.” (emphasis added) [29] This principle was applied by his Lordship Gopal Sri Ram JCA (later FCJ) in the Court of Appeal case in Khidmas Capital Sdn Bhd & Anor v NRB Holdings Ltd and other appeals [2006] 4 MLJ 194. In this 21 case, the plaintiff obtained an ex parte injunction to freeze the defendant's assets worldwide. The judge who granted the order did not produce any written reasons for his decision. In the appeal, learned counsel for the defendants challenged the freezing order on two grounds, namely: Firstly, there was no urgency in the matter warranting the making of the order; and Secondly, there had been non-disclosure of material facts by the plaintiff. [30] His Lordship Gopal Sri Ram JCA at paragraph [10] reasoned as follows: “Having examined the evidence, we were satisfied that there was really nothing in complaint about non-disclosure. It is crystal clear from the documents that all negotiations between the parties were conducted after the freezing order had been obtained. The evidence relied on by the appellant as showing that there had been negotiations pre-dating the freezing order is vague and imprecise. A reasonable tribunal properly directing itself would have given that evidence no weight whatsoever. And this is something well within the province of the learned judge 22 in this case. See, Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212 where the Privy Council approved the rejection by the first instance judge in an interlocutory proceeding of vague and imprecise assertions.” (emphasis added) [31] The Defendant had by their notice dated 8 March 2016 requested the Plaintiff to submit their Remedial Plan as the Plaintiff had failed to comply with the Stage Gate Schedule which was the new schedule for the completion of the Works under the SSC. [32] In the present case, there was no agreement reached between the Parties where the Remedial Plan is concerned. Parties are properly and plainly in negotiation; and until the negotiated terms have prevailed over the previous terms of the Contract, either party are permitted to walk away. There is no implied term that once parties started negotiation, then they must negotiate until a settlement is reached, otherwise no one is allowed to walk away. That itself would introduce extraneous factors like undue influence into a negotiation. No one would dare to commence a bona fide negotiation to explore possibilities of a settlement and a workable way forward in a contract that is right and ripe for termination for falling behind 23 schedule for fear that one might be guilty of terminating the negotiation in bad faith. [33] In a negotiation, there will be offers and counter-offers and the basic principle of contract law applies; that a counter-offer cancels the original offer and is a fresh offer altogether. Likewise too a counter-offer not accepted may at any time be withdrawn and further negotiations terminated unless there is a "lock-out period" of some sort where the status quo is maintained until the time frame is over. Otherwise parties would loath to put anything in writing even on a without prejudice basis for fear that if some proposals were made and one does not accept, then the offeror might argue that it would be unconscionable not to pursue an offer to a settlement and to walk away in what is said to be a unreasonable rejection of a reasonable offer. That itself would place an intolerable burden on all parties open to negotiation to avoid litigation; it would be a dampener and even dangerous to come to the negotiation table even when here, it is at the behest of the Minister in charged whose presence was there at the first meeting of all stakeholders after the initial stalemate. As was said long ago by John F Kennedy in his presidential inaugural speech on 20 January 1961: "Civility is not a sign of weakness and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate." 24 [34] Both the parties were cautiously careful in reserving and preserving their positions as can be seen in the various correspondence between the parties on the negotiations with respect to the details in the proposed Remedial Plan. The Plaintiff's letters maintained the mantra of "Subject to Contract" in all their correspondence on the exchange of terms between the parties with respect to the Remedial Plan. That of the Defendant ended with the expression that "all rights are reserved in the interim." Indeed the Plaintiff's own rule for the negotiations was that both parties shall not be required to waive any of their legal rights. [35] The fact of the matter was that there was no concluded contract arrived at with respect to the completion of the balance Works which had gone way past the completion date. [36] It is not sufficient for the Plaintiff to take the stand that the Heads of Agreement had been agreed when as we know, the body of the agreement is equally important for as they say, the devil is in the details and here the parties could not agree. Otherwise what is said to have been concluded is nothing more than a contract to enter into another contract with terms still having not being agreed which is no contract at all. 25 [37] The Parties' accrued rights would perforce apply unless some fresh terms have been agreed upon as varying previous terms. [38] The Plaintiff had relied on the case of Emirates Trading LLC v Prime Mineral Experts Pte Ltd [2015] 1 WLR 1145 for the proposition that the Defendant must negotiate in good faith. In that case, there is a dispute resolution clause which provides that the parties shall seek to resolve a claim by friendly discussion. The use of the word “shall” in clause 11 indicates that the obligation is mandatory. In the present case, no such clause exists in either the Principal Contract, Novation Agreement, FSA or even in the SSC. [39] As a matter of first principle, the parties’ obligations under a contract are strictly determined by the contractual obligations that they have entered into. In Aseambankers Malaysia Bhd & Ors v Shencourt Sdn Bhd & Anor [2014] 4 MLJ 619, the Court of Appeal at paragraph [325] held that “on the state of the current law, there is no general duty of good faith and fair dealing at common law”. [40] In the case of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (Trading as Medirest) [2013] EWCA Civ 200, the English Court of Appeal reinforced the proposition that there is no 26 general duty of good faith between contractual parties. Lord Justice Jackson at paragraph [105] said the following: “In addressing this question, I start by reminding myself that there is no general doctrine of 'good faith' in English contract law, although a duty of good faith is implied by law as an incident of certain categories of contract: see Horkulak at paragraph 30 and Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB) at paragraphs 120–131. If the parties wish to impose such a duty they must do so expressly”. (emphasis added) [41] The Defendant submitted that the facts of the present case is similar to that of I-Expo Sdn Bhd v TNB Engineering Corp Sdn Bhd [2015] 10 MLJ 20. The plaintiff in that case contended that the issuance of the NTP dated 23 March 2006 (B3/670) fixes the commencement date of the LOA to be 22 March 2006 and shows that the plaintiff has fulfilled all pre-conditions under the LOA meaning that the requirement for the production of the performance bond and the payment of the further payment was somehow varied. Lau Bee Lan J at paragraph [46] held that: “The plaintiff submits there is no provision in the LOA to suspend the works of the plaintiff at the Perai Power Station and for the defendant 27 to instruct the plaintiff to vacate the Perai Power Station unless the LOA is properly terminated. With respect I cannot accept the plaintiff’s contention. My reasons are these. The issuance of the NTP (23/3/206) must be taken in the context of the ongoing discussions between the parties as a result of the request from the plaintiff to vary the terms of the agreement which I alluded to in paras 45-45.5 above. It was an indulgence given by the defendant. I agree with the defendant’s submission that once there is a repudiatory breach of contract, the innocent party has an option or elect either to affirm the contract or accept the repudiation and terminate the contract. Support for this proposition is found in the case of Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 at p 607 para 13, where Gopal Sri Ram FCJ, speaking on behalf of the Federal Court) stated: He or she may elect to accept the repudiation, treat the contract as at an end and sue for damages... Alternatively, he or she may elect to reject the repudiation and treat the contract as subsisting. Whether the one or the other course was adopted by the promise the innocent party is a fact that is to be inferred 28 by the court from the objective facts, including the words and conduct of the parties....” [42] It cannot be said here that the Defendant had not acted in good faith by indulging in the Plaintiff’s request to negotiate. The Defendant had even at the behest of the Minister met up with the Plaintiff’s financiers. At the end of the day the parties could not agree on the details regarding the key clauses in the Remedial Plan. Where there is no agreement ad idem, this Court cannot substitute one for them. [43] I am in agreement with the Defendant's submission that, more importantly, it is succinctly clear that the Plaintiff’s obligation under Clause 4.2 of the Principal Contract is wholly independent of any other assertions, contentions, disputes, claims, breaches, complaints and allegations that may exist between the parties. [44] There is thus absolutely no link or nexus between a wholly independent obligation to furnish a Performance Bond, and the monetary claims by the Plaintiff. The clear failure by the Plaintiff to comply with its obligation under the Principal Contract can be taken cognizance of by this Court without the need to call for further investigation. 29 [45] The Defendant submitted that it is trite that performance bond is a form of financial security for the performance of the underlying contract between contracting parties. In construction industry, performance bond functions as an effective safeguard against non-performance, inadequate performance or delayed performance and its production provides a security as readily available to be realized, when the prescribed event occurs, vis-a- vis simply failing to complete the work which had been contracted to carry out: See Lotteworld Engineering & Construction Sdn Bhd v Castle Inn Sdn Bhd & Anor [1998] 7 MLJ 105 at page 111G, and ‘Law of Guarantee' by Geraldine Andrews and Richard Millet, (6th Ed), Sweet & Maxwell, 2011 at paragraph 16-003, page 621. [46] At paragraph 16-004, page 622 in 'Law of Guarantee' by Geraldine Andrews and Richard Millet, (6th Ed), Sweet & Maxwell, 2011, the learned authors state that: “In the construction industry, both in England and abroad, cash-flow problems are common, particularly in a time of recession. The employer therefore runs the risk of a project worth millions of pounds being abandoned at a critical stage because the contractor or a subcontractor has suddenly become insolvent… 30 …Many building contracts are commissioned by government (or local government) departments or bodies, after seeking bids for the tender from various contractors. Anyone awarding large contracts out of public funds will usually be particularly concerned to ensure that the successful bidder for the contract has sufficient technical and financial resources to undertake the project in accordance with its terms. Such employers are often equally concerned to ensure that moneys advanced on account will be used for the purposes of the project, and not as part of the contractor’s general working capital.” (emphasis added) [47] To appreciate the importance of performance bond as security to guard against the potential risks of contractor insolvency, the Defendant referred to the article “Constructing safety nets” by Ebony Alleyne in Construction Law October 2014 as follows: “A contractors’ worth is frequently in his receivables, such as debts, claims, retention and work in progress, and given contractors are still contending with rising material and energy prices (giving rise to fairly low profit margins) there are enduring concerns surrounding the effect of extended payment terms on the supply chain, in terms of cash flow and solvency. 31 All things considered, while the financial recovery is well under way; the power imbalance between employers and contractors means employers will continue to require informal forms of security, outside the construction contract. The common approach is for employers to require a performance bond or guarantee, and take comfort from the assumption it will provide a sizeable all-purpose safety net should things go wrong… …Performance bond is generally a condition precedent to the construction contract, and the employer is usually reassured by the option to call on a solvent paymaster should the contractor default or become insolvent.” [48] In Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd & Anor [2011] 7 CLJ 442, Ramly Ali JCA (as he then was), in affirming the commercial significance of performance bonds at paragraph [61] held as follows: “A performance bond is basically a form of security for the performance of the underlying contract between the parties. Usually the underlying contract between the parties provides for the requirement of a performance bond to be issued by a bank for the 32 benefit of the beneficiary in the event of non-performance of the other party of the contractual obligations between them. The underlying purpose of a performance bond is to provide a security which is to be readily, promptly and assuredly realisable when the prescribed event occurs, as stipulated in the underlying contract.” (emphasis added) [49] This principle was first enunciated by Ackner LJ in Esal (Commodities) v Oriental Credit [1985] Lloyd's Rep 546 at page 549. [50] The Federal Court in The Pacific Bank Bhd (sued as guarantor) v Kerajaan Negeri Sarawak [2014] 6 MLJ 153, speaking through Zainun Ali FCJ observed at paragraph [173] as follows: “…In this kind of situation, contractors in construction works are required to provide a performance bond as security to complete the construction project. It is a 'guarantee' in layman's term by the contractor to construct and complete the construction project until completion. It differs slightly from a letter of guarantee in terms of value attached to it where the bond is of the amount of a percentage of the value of the contract sum of the project. As a condition prior to commencement of the contractor's works, the 33 contractor provides a performance bond to the employer. In the event a breach or default occurred during the construction works of the project, a party's rights would depend on the provisions of the contract and the bond, but where it is an unconditional bond, the employer (the owner or occupier of the construction project) is allowed to make its claim by demanding for the bond without giving any reason.” (emphasis added) [51] The Defendant highlighted that given the significance and gravity of performance bond in construction and infrastructure contracts, such form of financial security shall remain in full force and effect at all material times to guard against the potential risks of contractors being unable to fulfill its obligations under the contract for reasons, inter alia, its inadequacy, incapacity, inadvertence, negligence, error, or occurrence of supervening events. [52] The Defendant submitted with considerable support from case law that a failure to provide and/or renew or maintain a performance bond is a fundamental breach, entitling the employer to terminate the contract: see Hudson’s Building and Engineering Contracts (12th Edition), at 34 paragraph 10-053, page 1329 which refers to the case of Swartz & Son (Pty) v Wolmaransstad Town Council 1960 (2) S.A. 1. [53] In Langkawi R & D Academy Sdn Bhd v Ketua Setiausaha, Kementerian Pertahanan Malaysia & Ors [2012] 5 MLJ 662, there was a failure on the part of the contractor to provide the performance bond within 14 days from the date of the contract. Abdul Malik Ishak JCA in delivering the judgment of the Court of Appeal stated at paragraph [45] as follows: “The failure on the part of the plaintiff appellant to provide the performance bond within 14 days from the date of the contract must necessarily fall on 25 October 2001 — calculated from 11 October 2001 being the date of signing of the contract. Whereas the breach as to the delivery of one unit of flyable technology demonstrator occurred on 15 November 2001. These breaches entitled the defendants respondents to terminate the contract and to prevent the plaintiff appellant access to the TUDM Butterworth premises.” (emphasis added) [54] Further, in I-Expo Sdn Bhd v TNB Engineering Corp Sdn Bhd [2015] 10 MLJ 20, the letter of award stipulated, inter alia, for the requirement of the performance bond to be furnished. One of the grounds 35 of termination of the contract was the failure to provide the performance bond. Lau Bee Lan J held that the termination was valid and at paragraph [54], observed as follows: “As the plaintiff failed to provide the performance bond and the further payment within the stipulated periods… the defendant was entitled to revoke the LOA…" [55] Likewise, the position under English law is similarly strict. In Multi Veste 226 BV v NI Summer Row Unitholder BV and others [2011] EWHC 2026, Lewison J (as he then was) held that the failure to provide the bank guarantees was certainly a repudiatory breach. Lewison J held at paragraph [186] as follows: “It is common ground that the failure to provide the bank guarantees and to complete the other documents required by cl 2.5 within five working days after satisfaction of the council pre-condition was a breach of contract by the NI Unitholder…” (emphasis added) [56] In considering whether such a breach is repudiatory in nature, at paragraph [202], Lewison J held as follows: “I do not, I think, need to decide whether failure to provide one (or even all three) of the three NI bank guarantees would on its own 36 amount to a repudiatory breach. The fact is that the NI investors refused to complete. In my judgment that did amount to a repudiatory breach, which in principle entitled Multi to terminate the USA.” (emphasis added) [57] I agree with the Defendant, as amply shown in light of the above, that performance bond is a critical and key security feature of a typical infrastructure contract. Performance bond under this kind of contract is a separate and standalone obligation, not dependent on any other conditions, i.e. progress payment being maintained. [58] This fact cannot be overlooked or ignored, that the Plaintiff has failed to renew and maintain a performance bond that will remain in full force and effect until the Plaintiff has fully executed and completed the Works. There is absolutely no justification for dispensing with it at all times while the Works remains unperformed. As such, the Defendant has the absolute and independent right to terminate the Principal Contract as clearly stipulated in clause 15.2.2 of the Principal Contract when it issued its Notice to Terminate dated 9 June 2016. There is no basis for saying that such a termination is unlawful, unconscionable and in bad faith and therefore 37 invalid in fact and law. At the very least such a termination is not a serious issue to be tried for the purpose of this injunction. [59] As pointed out by the Defendant, the Plaintiff had previously provided a Performance Bond pursuant to clause 4.2.1.1 of the Principal Contract dated 1 August 2011 which was renewed on 17 March 2014, 14 April 2014 and the most recent renewal expired on 25 April 2016. As early as 25 April 2016, the Defendant had written to the Plaintiff requesting the Plaintiff to extend the validity period of the Performance Bond and notified the Plaintiff that should they fail to extend the validity of the Performance Bond, the Defendant would exercise its right under clause 15.2 of the Principal Contract. The Plaintiff sent a letter dated 18 May 2016 to the Defendant requesting for a waiver of the requirement of the Performance Bond until 30 June 2016. At paragraph 3(g) of this letter, it is stated that “We request that Prasarana waives the requirement for Scomi to renew the Performance Bond until 30th June 2016 while the remedial plan is being discussed and until the necessary agreements are reached". [60] The Defendant rejected the said request in its letter of 2 June 2016. The Plaintiff was reminded by the said letter dated 2 June 2016 to ensure that the Performance Bond was renewed within 14 days from 25 38 May 2016. Despite the reminders, the Plaintiff failed, omitted and neglected to renew the Performance Bond. Thereafter the Defendant issued its Notice of Termination dated 9 June 2016. [61] I agree with the Defendant that, as such, the Plaintiff’s argument that the Defendant had earlier failed to assert its right under the Principal Contract and is now estopped from exercising its right under Clause 14.2.1 of the Principal Contract in issuing the termination notice is clearly baseless. [62] It cannot be gainsaid that at all material times, the Plaintiff is well aware of the continuing obligation to maintain a performance bond that will remain in full force and effect until the completion of the Works. Further, the Defendant argued that, unlike in the case of I-Expo Sdn Bhd [2015] 10 MLJ 20 wherein the defendant stance initially changed when it agreed to the plaintiff’s proposed variation (but the agreement did not materialise as the plaintiff could not agree to the condition outline by the defendant), based on our current facts, the Defendant submitted that it has always been consistent with its stance on keeping the Performance Bond subsisting throughout the Works. 39 [63] I could not agree more with the Defendant that besides that, the importance for the Plaintiff to furnish a performance bond can be seen in various clauses within the Principal Contract, namely, in Clauses 8.1.2(a), 8.1.3, 8.1.4, 14.2.1, 15.2.1(a) and Schedule B paragraph 1.4(a). All these clauses show that the Principal Contract is conditional upon this Performance Bond and that no payment will be made by the Employer to the Contractor until a valid Performance Bond is in place. Crucially and critically, the failure to furnish a Performance Bond would ultimately result in the termination of the contract. [64] This Court agrees that it is unjustifiable and inexcusable for the Plaintiff to now assert that the obligation to renew the Performance Bond is “onerous” as it was at all material times, part of the terms of the Principal Contract and is a normal, standard requirement in any contract of this kind. To hold otherwise would amount to a rewriting of the Principal Contract and fundamentally changing the law relating to contracts of this kind. [65] This Court agrees that the Defendant's position will be prejudiced by the lack of a renewed/extended Performance Bond that is in place throughout the performance of the Works. Given the Plaintiff’s financial position, it is simply beyond the Plaintiff’s ability to compensate the 40 Defendant in damages. Therefore, the termination notice is legally valid and was issued by the Defendant in exercise of its rights under clause 15.2.2 of the Principal Contract by virtue of the Plaintiff’s failure to comply with its obligations under Clause 4.2.1.2 of the Principal Contract. [66] Under the Principal Contract, the Project was to have been completed within a period of 31 months from the Principal Contract. During the Project period, the Plaintiff said they had completed 83% of the Works by value including: (i) completing and delivering the new stations; and (ii) delivering up to six new four-car trains. [67] The Plaintiff admitted that there were delays in the Project. However the Plaintiff blamed it on the Defendant’s own delays in assessing the Plaintiff’s claims for payment and further delays in making payment even when the claims had been assessed and approved for payment. The Plaintiff argued that there were serious payment delays from as early as 2014, particulars whereof are as follows: 41 Plaintiff’s Invoices Nos. Sum claimed (RM) Invoice Submission Date (Payment due date) Actual Payment Date Delay in making payment (days) 26 2.58 million 18.12.2014 (3.2.2015) 17.4.2015 73 27 9.06 million 21.1.2015 (9.3.2015) 29.4.2015 41 28 3.02 million 22.1.2015 (10.3.2015) 30.4.2015 51 29 5.44 million 4.3.2015 (15.4.2015) 14.5.2015 29 30 10.87 million 4.3.2015 (15.4.2015) 14.5.2015 29 31 3.02 million 4.3.2015 (15.4.2015) 14.5.2015 29 32 5.44 million 13.3.2015 (24.4.2015) 14.5.2015 20 33 4.82 million 13.3.2015 (24.4.2015) 14.5.2015 20 34 1.26 million 16.3.2015 (27.4.2015) 14.5.2015 17 Total 45.5 million 309 Days [68] The Defendant was visibly upset with the Plaintiff in what the Defendant said is a case of the Plaintiff being economical with the true facts and less than candid with this Court. The Defendant highlighted that subsequent to the entry of the SSC, the Plaintiff had in fact re-submitted most of its Contract Payment Applications after clarifications were sought by the Engineer as stipulated in Clause 3.2 in Schedule B of the Principal 42 Contract. The relevant dates for key events leading up to payment would therefore be as follows: Invoice No Date of receipt of Original Invoice Engineer’s Request for Details Date of receipt of Resubmitted Invoice Date of issuance of Engineer’s Certificate of Payment Payment by Defendant Business Days between Payment by Defendant and issuance of Certificate of Payment 26 18.12.2014 - - 20.1.2015 17.4.2015 SSC applies 27 21.1.2015 - - 27.1.2015 17.4.2015 SSC applies 28 22.1.2015 - - 16.2.2015 29.4.2015 SSC applies 29 4.3.2015 20.3.2015 15.4.2015 27.4.2015 14.5.2015 11 30 4.3.2015 - 15.4.2015 27.4.2015 14.5.2015 11 31 4.3.2015 - 15.4.2015 27.4.2015 14.5.2015 11 32 13.3.2015 20.3.2015 15.4.2015 27.4.2015 14.5.2015 11 33 13.3.2015 20.3.2015 22.4.2015 27.4.2015 14.5.2015 11 34 13.3.2015 20.3.2015 15.4.2015 27.4.2015 14.5.2015 11 43 36 18.6.2015 13.7.2015 2.9.2015 14.9.2015 13.10.2015 19 37 10.9.2015 5.10.2015 4.11.2015 16.11.2015 15.12.2015 21 38 23.12.2015 15.1.2016 22.1.2016 15.3.2016 5.4.2016 15 39 26.1.2016 29.2.2016 - 15.3.2016 5.4.2016 15 40 22.4.2016 - 27.4.2016 4.5.2016 8.6.2016 25 [69] There is basis for the Defendant's argument that based on the above table read in light of the terms of the SSC, the Defendant had in fact made payments within due time. In this regard, Invoices No. 26, 27 and 28, which were defined as the Approved Invoices in the SSC, were accordingly paid following the execution of the SSC. Further, Invoices 29 to 34 which were defined as the Pending Invoices in the SSC were all paid within the 20 Business Days from the issuance of the respective Contract Payment Certificates by the Engineer. [70] From the Defendant's table above, it can fairly be said that the Defendant made payment within the prescribed time limit from the date of receipt of the Engineer’s Certificate of Payment. It can also be seen that 44 the Defendant was not slow in addressing the various payment claims which were outstanding, including but not limited to Invoices 38 and 39. The Defendant explained that Clauses 3.1.1, 3.1.2 and 3.1.3 of the SSC merely set out the Invoices submitted by the Plaintiff and in no way can these clauses be deemed to be an acknowledgement of any alleged delay. The Defendant further expressed its difficulty in understanding how a mere alleged delay in respect of each payment ranging from 17 days to 73 days (which the Defendant does not admit) could have resulted in the Plaintiff’s dire financial situation or the Plaintiff’s overall financial position to date. It would be impudent for the Plaintiff to blame the Defendant for its own imprudent financial shortcomings, and for the mismanagement of its own finances. This is not a case where the Defendant’s delays in making progress payments had impeded the Plaintiff’s ability to carry on the Works or caused a delay in the Works schedule. This was more a case where there was serious and persistent delay by the Plaintiff in carrying out the Works because of the Plaintiff's lack of financial resources to expedite the Project when it had fallen behind schedule. [71] I accept as more probable the Defendant's explanation that the 45 objective in entering into the FSA was to facilitate the Works by the Plaintiff by means of an upfront advance against the Contract Price in the amount of RM50 million (“Offsite Payment”) to address the lack of cash-flow of the Plaintiff which in turn was leading to the undisputed delay in execution of the Works. Contractually there was no such provision for an upfront payment of this kind in the Principal Contract. The Defendant submitted that the RM50 million advance payments was provided in absolute good faith by the Defendant to the Plaintiff in circumstances where the Defendant was clearly not obliged in law or by contract to do so. This has not been denied by the Plaintiff. It was meant to be utilized for the purposes for letters of credit to vendors and suppliers and issuing post-dated cheques to the Plaintiff’s sub-contractors for the rolling stock component, services and parts of the Rolling Stock Vehicle (“RSVs”). [72] I can accept the Defendant's version as to why the SSC was entered into: (a) First, in light of the fact that the progress of the Works had not progressed on schedule based on the agreed Milestones in the Principal Contract, which the FSA was meant to address; and (b) Second, the SSC was meant to facilitate resolution of a small number of unpaid and/or unapproved progress payments which 46 the Defendant was entitled to withhold payment of. This is because at the time of the SSC, the accumulated and accrued agreed Liquidated Damages (as defined in the Principal Contract) due to the Plaintiff’s persistent delay in executing the Works had risen to approximately RM84,768,000.00 as at 6 March 2015, which the Defendant would have been entitled to deduct from any progress payments under the Contracts. Again, in total good faith, the Defendant agreed not to enforce its rights to such Liquidated Damages in accordance with clause 3.4 of the SSC despite the fact it was not obliged whether in law or under contract to do so. [73] The Plaintiff's position is that there had been an agreement in principle with respect to the Remedial Plan and that once the Remedial Plan had been refined and fine-tuned and then approved by the Defendant and formalized and finalized in writing then the Plaintiff's financier would extend the Performance Bond and indeed the financier was expecting a supplementary agreement to that effect by mid June 2016. [74] The Defendant, at the behest of the Minister, even met up with the Plaintiff's financier on 18 May 2016 to understand and appreciate why the 47 financier could not extend the Performance Bond until a supplementary agreement incorporating the Remedial Plan has been put in place. [75] The Plaintiff seemed to be suggesting that since the Remedial Plan was so close to being finalized, the Defendant cannot then resile from the last negotiated position and then, as it were, terminate the Contract on ground of failure to keep the Performance Bond subsisting throughout the Contract. [76] Based on the aforesaid, the Plaintiff believes that the Defendant, notwithstanding Clause 15.2 of the Principal Contract, is estopped from exerting its contractual right under the Principal Contract. [77] The Plaintiff cited in support the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 that in proving estoppel, all the representee needs to do is place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent’s acts. The application of this principal was reaffirmed by the Court of Appeal in First Count Sdn Bhd v Wang Yew Logging & Plantation Sdn Bhd [2013] 4 MLJ 693 where the court held that the plaintiff is estopped from insisting on the performance of 48 the terms of the original contract when it had failed to earlier assert as such when it had the opportunity to do so earlier. [78] Whether or not estoppel would apply would be fact-centric and fact- sensitive. However, here the Plaintiff cannot have the cake and eat it. It cannot have the best of both worlds in that its position under the Contract is reserved and preserved and that when the Remedial Plan for some reason could not be agreed, then it would be unconscionable for the Defendant not to have agreed! It had chosen to conduct all negotiations on the basis of "Subject to Contract". It cannot now be heard to say that the negotiations on the Remedial Plan had reached the final phase such that it would be unconscionable for the Defendant not to agree on the terms or issues raised in the last lap as it were, whatever these terms may be. [79] Either there has been a concluded contract in the Remedial Plan or not at all. If there is then it is for the Plaintiff to sue for specific performance of the new contract if it is the type of contract that is amenable to specific performance. If there is no concluded contract on the Remedial Plan then the question is whether the Defendant may proceed to terminate the Contract on ground of the Plaintiff's breach of Clause 4.2.1.2 of the Principal Contract which reads: 49 "....For the avoidance of doubt, the Performance Bond shall be valid and effective until the issuance of the Performance Certificate." [80] The Defendant then proceeded to terminate the Contract under Clause 15.2.1(a) and by giving the notice under Clause 15.2.2 of the Principal Contract. [81] Having negotiated on the basis that the Principal Contract is binding at all times until its terms are varied by a concluded contract on the Remedial Plan, the Plaintiff cannot now be heard to say that that the termination of the Contract for breach of the said Clause is a serious question to be tried. At any rate it cannot now blame the Defendant as the cause of its failure to persuade its financier to extend the Performance Bond. Neither can it say that the Defendant having found out for itself why the Plaintiff’s financier is not going to extend the Performance Bond until the Remedial Plan is formalized and finalized into a contract, it must then be held responsible if the Performance Bond cannot be issued by the financier because the Defendant could not agree on the Remedial Plan! That would be to hold the Defendant to ransom! [82] The duty and responsibility as well as the legal obligation has, at the outset and throughout the Contract, been with the Plaintiff to secure the 50 Performance Bond. The Plaintiff cannot now shift that contractual obligation to the Defendant on account of its financier not agreeing to extend the Bond because the Defendant has not agreed in the Remedial Plan. What the Plaintiff is trying to do is to blame the Defendant for the predicament it now found itself with its financier and to make itself the victim of the failure of the Defendant to agree to the Remedial Plan. [83] It would have been better for the Defendant not to have met the Plaintiff's financier for once it had understood why the financier is not extending the Performance Bond, then it becomes the cause of the failure of the Plaintiff to procure the Performance Bond from its financier all because it was within the Defendant's power to agree to the Remedial Plan which it chose not to! This Court cannot interfere with the choice that the Defendant may want to make for it alone has the autonomy and authority to decide on issues of the further extension of time to complete the remainder Works and the terms governing it. This Court must respect the freedom of contract of the Parties. [84] Whilst these issues may be canvassed at the intended arbitration, for the purpose of this injunction, I cannot see how these may be serious questions to be tried, for all the reasons referred to above. 51 [85] Assuming for a moment that there are serious questions to be tried, this Court would nevertheless agree with the Defendant, that damages would be an adequate remedy in the circumstances of this case for the reasons considered in the next discussion. Whether damages would be an adequate remedy and that the injunction should be refused [86] The Plaintiff stated that the balance of convenience favours the Plaintiff for the following reasons: (a) The Project is a public infrastructure project. Any termination of the Plaintiff will cause enormous delay and thereby cause inconvenience to the general public. It will not be in line with the Government’s aspiration of quickly providing safe, reliable, responsive, accessible, efficient, planned, integrated, affordable and sustainable land public transport system in Kuala Lumpur to enhance economic growth and quality of life and reduce traffic congestion. (b) The Plaintiff’s employees, materials and equipment for the Project still remain at the Project site. In the circumstances, if the Defendant is not restrained, the Plaintiff will be constrained to evacuate their employees and remove their materials and equipment from the site 52 and if the Plaintiff is successful in their dispute with the Defendant, unnecessary and unreasonable time and costs will have to be incurred by the parties to remobilize the work force and relocate the materials and equipment to the Project site. (c) The Defendant’s conduct inviting the Plaintiff to be their subcontractor after the termination of the Principal Contract shows that without the Plaintiff, they would not be able to complete the Project especially when the Plaintiff has completed some 83% by value of the Works and is familiar with the entire the Project as they have been involved in the Project since 2011; and (d) If the Defendant is not restrained, a total 300 of the Plaintiff’s employees and those of their subcontractors will potentially be terminated. [87] It appears from the posture and position taken by the Plaintiff, that it behooves Defendant who is now beholden to them, to bear with them for the completion of the Project for any other options especially in engaging another Contractor would cause further delay in the Works and might even affect the integrity of the Works. The Plaintiff admittedly, as if in sounding the alarm, is now raising serious concerns of public safety and delays to the project if a third party is now appointed to complete. 53 [88] The Plaintiff further contended that damages could by no means be an adequate remedy in a case like this where the termination threatens serious damage to the Plaintiff’s business reputation, credibility and standing in a very small and specialized international industry where the Plaintiff is a well known player both locally and internationally. See Arif v Yeo & Anor [1989] 2 SLR (R) 236. [89] The Plaintiff further warned that upon termination of the Contracts it is required to surrender the designs to the Defendant to be given to the subsequent Contractor. Should the termination be held unlawful, damages would not adequately compensate the Plaintiff for the trade secrets that has already been surrendered to the Defendant. [90] In support of this proposition the Plaintiff referred to the case of Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ 297, where the court held that in cases of trade secrets and confidential information, damages will not be an adequate remedy because it is always difficult to quantify them. [91] Therefore, the Plaintiff concluded, should the contract now be terminated and the Plaintiff forced to surrender the designs before the issue 54 be first determined through arbitration, the Plaintiff surely cannot be adequately compensated with damages. [92] Apart from the aforesaid, in the event that the Defendant is not restrained from terminating the Contracts, the Plaintiff said it will suffer irreparable damage for the following reasons: (a) The core business of the Plaintiff is train-building (in particular monorails) which is a niche industry. Any termination of the Contracts will therefore gravely affect the Plaintiff’s reputation which will be known to the industry. (b) The Plaintiff’s parent company, Scomi Engineering Bhd (“SEB”), is a public listed company and therefore, any termination of the Contracts will require an announcement being made in Bursa Malaysia. (c) It is also worth noting that the Plaintiff is the only Malaysian company who has the experience in building monorails outside the country. In the circumstances, a termination of the Contracts will also damage the reputation of Malaysian companies overseas. In particular, a termination in Malaysia, the Plaintiff’s home country, is likely to be perceived extremely negatively by the international market. These reputational issues are reasons for granting and injunction. See Ariff v Yeo [1989] 2 SLR(R) 236. 55 (d) Any damage to the Plaintiff’s reputation will affect SEB, the parent company of the Plaintiff and their current projects in various countries and several other projects which they have submitted bids. (e) The termination will result in potential termination of over 300 employees of the Plaintiff and those of their subcontractors which have been specifically employed or assigned for the Project. (f) It will trigger a recall of the banking facilities currently enjoyed by the Plaintiff, not only for this Project, but also those given for the other projects and those enjoyed by the other companies within the SEB Group of Companies and will expose the Plaintiff to risk of litigation due to the actions of the Defendant. [93] Further and in any event, SEB, the parent company of the Plaintiff and a public company listed in Bursa Malaysia has provided a further undertaking as to damages. SEB has assets which far outweigh any potential damages as a result of the injunction. SEB’s last audited accounts as at 31 March 2015 shows that SEB has net assets of approximately RM269 million and is well capable of giving further undertaking as to damages. 56 [94] In the case of Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd [1948] 2 MLJ 143, the court, taking into account the Plaintiff’s undertaking as to damages and also a further undertaking of a like nature by the Plaintiff’s parent company, the sufficiency of whose undertaking the Defendants do not contest, made and Order restraining the Defendants, its servants or agents from disposing of or dealing with any part of the net proceeds of the sale of the disputed property. [95] Similarly here, the Plaintiff’s parent company also provided their own undertaking for the matter in support of the Plaintiff. [96] Thus, there should be no concern on the Plaintiff’s ability to undertake to pay damages for the interim injunction and the Defendant’s doubt on the matter is baseless. In any event, SEB’s further undertaking is more than sufficient to assuage any fear of Plaintiff’s ability to compensate for any potential damage arising from the order. [97] For all the aforesaid reasons, the Plaintiff urged upon this Court to grant the application with costs. [98] On the other hand, the Defendant submitted that the Plaintiff can be adequately compensated by damages for losses suffered, if any. The 57 Defendant referred to the celebrated case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 wherein Lord Diplock at page 408B-C held that: “... the governing principle is that the court should first consider whether, if the plaintiff were to succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable would be [an] adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. …It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises.” (emphasis added) [99] The Defendant's stand is that even if it is demonstrated that the Defendant was not entitled to terminate the Contract under clause 15.2 of 58 the Principal Contract (in respect of which the Defendant unequivocally says it can lawfully terminate), any losses suffered by the Plaintiff (directly foreseeable and other related losses) is confined and limited to an assessment of damages that it would be contractually entitled had it been allowed to perform the remaining unperformed portion of the Works. [100] The Defendant clarified that there is unfounded fear on the part of the Plaintiff that its trade secrets would be breached and that it would be impossible to assess damages. At the outset, in respect of paragraph 35 to 37 of the Plaintiff’s Submission, the Defendant submitted that no evidence was led by the Plaintiff in any of its earlier five (5) affidavits filed herein. Such practice amounts to giving evidence from the Bar and is to be deprecated. If authority is needed one can refer to the Court of Appeal's case of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, where Gopal Sri Ram JCA (later FCJ) at page 287 held that “it is a principle fundamental to our system of adversarial litigation that evidence upon a matter must be given on oath”. [101] This principle was followed in the case of AmFinance Berhad (Company No: 8515-D) (Formerly known as MBF Finance Berhad and 59 previously as Arab-Malaysian Finance Berhad) v Jong Joo Tze and Anor [2010] MLJU 1330 where at page 4, the following was observed: “The Defendants had alleged that there are payments debited in the account without detailed explanation. The Plaintiffs simple reply to this was that the argument is raised only in the submission and not in the affidavit. This is tantamount to evidence from the bar which should not be permitted by the Court. This issue should have been raised by the Defendants at the beginning itself when the application for amendment was filed by the Plaintiff but the Defendant chose not to do anything until now causing the bank to be deprived of the opportunity of explaining the charges which has been imposed which occurred 3 years back…” [102] It is critical for the Plaintiff to adduce affidavit evidence to support its contention that its trade secrets would have to be surrendered to the Defendant and that damages would not be an adequate remedy. In this regard, the Defendant submitted that upon termination by the Employer pursuant to Clause 15.2 of the Principal Contract (which includes Clause 15.2.2), Clause 15.2.4 of the Principal Contract provides as follows: “The Contractor shall then leave the Site and deliver any required Materials, all Contractor’s Documents, and other design 60 documents made by or for him, to the Engineer. However the Contractor shall use its best efforts to comply immediately with any reasonable instructions included in the notice (i) for the assignment of any subcontract, and (ii) for the protection of life or property or for the safety of the Works.” (emphasis added) [103] Further Clause 15.2.5 of the Principal Contract provides that: “After termination, the Employer may complete the Works and/or arrange for any other entities to do so. The Employer and these entities may then use any Materials, Contractor’s Documents and other design documents made by or on behalf of the Contractor.” (emphasis added) [104] In fact, after a notice of termination under Clause 15.2 of the Principal Contract has taken effect, under Clause 15.4.1 of the Principal Contract, the Employer may amongst other “withhold further payments to the Contractor until the costs of design, execution, completion and remedying of any defects, damages for delay in completion (if any), and all other costs incurred by the Employer, have been established...” (emphasis added) 61 [105] Finally, under Clause 16.3.1 of the Principal Contract, it is stated that “after a notice of termination under Clause 15.5 (Employer’s Entitlement to Termination), Clause 16.2 (Termination by Contractor) or Clause 19.6 (Optional Termination, Payment and Release) has taken effect, the Contractor shall promptly (b) hand over Contractor’s Documents, Plant, Materials and other-work, for which the Contractor has received payment.” (emphasis added) [106] Whereas here, the Parties had negotiated and agreed under the Principal Contract on the obligation of the Plaintiff to hand over the drawings upon the termination of the Contracts, rightly or wrongly, it would be absurd to say that these drawings are in the nature of trade secrets. It would also be incongruous for the Plaintiff to now argue that it has entered into a bad bargain and to try escaping its contractual obligation: His Lordship Zulkefli Makinudin (CJM) in the Federal Court case of Pembinaan Perwira Harta Sdn Bhd v Letrikon Jaya Bina Sdn Bhd [2013] 2 MLJ 620, at paragraph [10] referred to English case of Trustees of the Stratfield Save Estate v AHL Construction Limited [2004] EWHC 3286 (TCC), wherein Justice Jackson at paragraph [35] held that: “However, the cases do show that reasonably clear words are needed in order to remove work from the contractor simply to have it 62 done by somebody else, whether because the prospect of having it completed by the contractor will be more expensive for the employer than having it done by somebody else, although there can well be other reasons such as timing and confidence in the original contractor. The basic bargain struck between the employer and the contractor has to be honoured and an employer who finds that it has entered into what he might regard as a bad bargain is not allowed to escape from it by the use of the omissions clause so as to enable it then to try and get a better bargain by having the work done by somebody else at a lower cost once the contractor is out of the way (or at the same time if the contract permits others to work alongside the contractor).” (emphasis added) [107] On irreparable loss of reputation, the Defendant submitted that the Plaintiff here was misguided in relying on the case of Arif v Yeo [1989] 2 SLR(R) 236 and the case can be distinguished from our present facts. The case of Arif concerns mismanagement in a partnership business. It is pertinent to note that partnerships are by law presumed to be based on mutual trust and confidence of each partner in the integrity of every other partner. As for the highly touted issue of a loss of reputation in business, the Defendant referred to the case of Johnson v The Shrewsbury and 63 Birmingham Railway Company (1853) 3 D.M. & G. 914, where Lord Justice Knight Bruce at page 364, line 38-49 held that: “... The inconvenience and mischief to the Defendants, to say nothing of the interest of society at large, would be greater if the Court should interfere than anything that could possibly happen to the Plaintiffs by declining to interfere, especially since, as in the case of Pickering v. The Bishop of Ely, all that the Plaintiffs require (and I use the expression not otherwise than respectfully towards them) is money, and if they are entitled to money, they will be able to recover it in the ordinary course of law. With regard to their reputation, I do not see why it should suffer because they happen to have differed with a particular railway company. It seems just as likely that the reputation of the railway company, if impeached, may suffer by differing from the Plaintiffs. If the Plaintiffs' reputation does however suffer, there is a remedy open to them at law. For these reasons I think it impossible to interfere by injunction in this case.” (emphasis added) [108] I agree with the Defendant that in light of the above, the decision in Arif v Yeo (supra) should be confined to cases involving partnerships 64 where the cornerstone of the relationship of the parties is governed by mutual trust and confidence. [109] In any event, the Defendant submitted, and I am inclined to agree, that on the balance of convenience, the Defendant and its stakeholders which includes, its subsidiaries, the Ministry of Finance, the Ministry of Transport and Suruhanjaya Pengangkutan Awam Darat (SPAD) would suffer greater reputational damage. [110] I further agree with the Defendant that, without a shadow of a doubt, no interim injunction should be granted as the Plaintiff can be adequately compensated by damages for losses suffered, if any. The shareholders of the Defendant are none other than the Ministry of Finance and the Federal Land Commissioner. The Plaintiff had not alluded to anything that come near to expressing any valid fears that the Defendant would not be able to pay damages save to say that it would be a very colossal sum. If need be experts may be called in to assist the Court in assessing damages. As for reputational damage no Court has expressed difficulties in assessing damages for instance in defamation cases which is a specie of reputational loss. 65 [111] The converse is not true. Based on a recent company search conducted on the Plaintiff, it is clear that the Plaintiff is in no financial position to undertake any damages. Even though its current liabilities do not exceed its current assets, however they merely cancel each other out. Not only that, the Plaintiff has made a loss in the last financial year. The Plaintiff has also clearly failed to service its obligations under the financing arrangement with its bankers, and this further jeopardizes its precarious financial position: See Exhibit “U” to Enclosure 10 [112] Even if the parent company of the Plaintiff were to give its supporting undertaking, the ability of the Defendant to pay damages is clearly less in doubt compared to that of the Plaintiff and its parent company. [113] As this Court is satisfied that damages would be an adequate remedy and that the Defendant is more than able to meet any damages that may be assessed, their shareholders being agencies of the Federal Government, the ad-interim injunction given should be discharged. Whether the justice of the case and the balance of convenience are in favour of the Defendant 66 [114] In Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah [1995] 1 MLJ 193 at pages 207B-D it held as follows: “….In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal. He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the injunction especially if he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief….” (emphasis added) [115] The Plaintiff painted a catastrophic picture of the chaotic complication that would arise, should the Defendant hire a new contractor. It will be faced with huge safety, reliability and timeline challenges from the moment they take over the Project. It is reproduced below in all its stark reality: 67 "As stated in the Plaintiff’s 3rd Affidavit, the construction of the Project is not just copying a design and building a train as if they were easily assembled from off-the-shelf components. Any new contractor must practically design, fabricate, assemble, integrate the carriage systems into the existing systems, test, commission and then deliver new carriages. The work is about building a train and then running the train on a set of tracks which only the current contractor understands in terms of its science and technical abilities. There are various safety and reliability issues that will immediately arise should another contractor take over the Works: (a) Weight – the weight of the carriages are crucial to the stability of the carriage while in motion. The existing structure has limitations, and any error in the weight, which can very well occur if tight timelines are imposed by the Defendant on a new contractor, will almost surely result in catastrophic failure. (b) Turning Radius – the Project’s objective is primarily to deliver additional carriages which will fit and run safely and reliably on an existing monorail system. There is currently no other manufacturer who has the proven track record on small turning radius on the existing beam structure with limited weight-carrying capacity (70.0m 68 at mainline and 49.5m at depot) other than the Plaintiff. Any new contractor will have to start design, design testing, fabrication, further testing post fabrication and system integration which will take a very long time. Failing to carry out fresh tests will result in catastrophic failure which will happen if the trains are not tested and validated for the smaller radius. (c) Bogie – the bogie is the undercarriage with six wheels pivoted beneath the railroad car. The safety challenge is to ensure that the bogies’ limitations stay within the existing train Kinematic Envelope (allowable movement) in any conditions. Failing to do so will cause damage to wayside or trains during testing and degraded operations (collision). Any failure of the bogie e.g. its inability to negotiate a curve on the beam at a certain speed, can be catastrophic. (d) Timeline – the lengthy testing would mean that the delivery of the remaining 6 trains would take between 24 to 32 months which is exponentially longer than the time the Plaintiff will take to complete the remaining works which is 9 to 12 months once the Remedial Plan and the requisite financing (which is dependent on the Remedial Plan) is in place. 69 The matter at hand is not a purely commercial dispute as the Defendant is portraying. It is a public interest project concerning public transportation that will be used by the masses. The balance of convenience thus rests on the public safety concerns." [116] The Plaintiff cited the Australian case of Australia Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited (No 2) [2015] FCA 1090, where the court there granted an injunction to the Applicant as the Respondent was disseminating false information on whooping cough which the court held is injurious to public. In another case, Director of Consumer Affairs Victoria v Midas Trading (Aus) Pty Ltd [2009] VSC 141, the court granted an injunction against the Defendant due to, inter alia, fear that the Defendant would again supply toys which did not follow safety regulations and inflict substantial damage to the public. [117] These cases, according to the Plaintiff, illustrate that the Court can grant an injunction if it is in the public’s best interest. The Plaintiff reiterated that public safety would be in jeopardy if another contractor were to take over the Works for the Project. It is in the best interest for the public, that the Plaintiff as the contractor with the necessary expertise, to continue and complete the Works. 70 [118] The Defendant castigated the Plaintiff's assertions as speculative and scurrilous, fanning the fire of fear so as to fasten their hold of the Contracts, forbidding the Defendant from terminating it on ground that Project in the hands of a substitute contractor would be doomed to catastrophic failure involving as they say safety issues. According to the Defendant, there are many monorail systems specialists in the industry with sufficient information that could carry out all the necessary Works which includes but not limited to the systems integration work. The selection of the contractor to complete the Works would be drawn from one of these specialists. To date, there has already been unacceptable delay caused by the Plaintiff. With the current status of the Project lingering in doubt and with the Plaintiff’s precarious financial standing, I cannot blame the Defendant for disbelieving the Plaintiff when it gave its assurance that it only requires 12 months to complete the Project. Its track record or the lack of it has shown that the Plaintiff has taken 5 years from what was a 31 month Project to deliver 5 trains out of 12. [119] The Defendant speaks with a reassuring tone when addressing the challenges that a new contractor would face. It submitted as follows: "In manufacturing the current 4-car trains, the Plaintiff was required to meet a range of Employer’s Requirements together with design, 71 manufacturing, test and commissioning and safety standards. These would also apply to any other contractor. The challenges faced by the ‘potential new contractor’ are not insurmountable. Currently in the market, both Chinese and Japanese manufacturers are developing smaller vehicles for use in second tier cities with lower patronage and challenging environments. This goes to show that there are other manufacturers who can manufacture similar sized trains. As regard turning radius and bogie, other manufacturers can perform and meet the requirements of the Project. Further, other monorail systems specialists also have access to test tracks for off-site testing." [120] The Defendant emphasized that the Project, being a Federal Government of Malaysia initiative and being handled by the Defendant, a public company, is answerable not only to its shareholders, being the Ministry of Finance and the Federal Lands Commissioner but also to the Government and to the public at large. I have no doubt that the Defendant would have in the forefront of its mind the safety of the commuters which must not be compromised at all and that they must ensure that a specialist contractor who has the know-how and skill would be appointed to ensure that the safety and reliability of the Project is addressed at all times. 72 [121] The Defendant pointed out that the two Australian cases relied by the Plaintiff is misconceived. In both cases, the injunction were granted on the basis that failing to do so will pose a grave risk of serious harm to the health and safety of the consumer. This is extremely different from the present case where the injunction was to halt the progress of an infrastructure project which is for the benefits of the public. [122] The Defendant persuaded this Court that it is the Defendant who would suffer the greater injustice by the grant of an injunction as an injunction will constitute an interference with an infrastructure project of a public nature for the greater good of the inhabitants of the Klang Valley. [123] In the Malaysian Court of Appeal case of Tenaga Nasional Bhd v Dolomite Industrial Park Sdn Bhd [2000] 2 MLJ 133, Gopal Sri Ram JCA (later FCJ) at page 138F-I held that: “…The evidence on record shows that the offending pylon forms part of the national grid for the conveyance of electricity. It is therefore clear that if a mandatory injunction is maintained there will be disruption of electricity supply in Peninsular Malaysia. It is not in the public interest that such a disruption should occur. 73 In Smith v Inner London Education Authority [1978] 1 All ER 411, Browne LJ held that public interest was always a relevant consideration in granting specific relief. This is how he put it (at p 422 g–h of the report): … I think counsel for the authority is right in saying that where the defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. No doubt that was said in the context of an interlocutory injunction. But we do not regard the principle to be any different in the case of a final injunction, whether prohibitory or mandatory in nature. The learned judge in this case failed to take into account public interest. If the learned judge had done so he would have held that the public interest outweighs the respondent's interest. Accordingly we would set aside the mandatory and prohibitory orders made by the court below…” (emphasis added) [124] The Defendant invited this Court to draw an analogy from the above case above and the case of Maldives Airports Co Ltd and another v 74 GMR Male International Airport Pte Ltd [2013] SGCA 16, in that the KL Monorail Fleet Expansion Project is a Federal Government of Malaysia initiative for the purposes of alleviating the congestion in the existing Monorail services and to upgrade the services provided to the public in the KL Monorail system. To date, the project has already been delayed for 3 years from its original completion date and the Plaintiff’s work may probably be delayed until as late as mid-2017 which is a completely unacceptable situation. The Defendant has its obligations to the Malaysian Government and the Malaysian public as a whole. I find considerable force in the Defendant's submission that if it is not allowed to exercise its rights to ‘step in’ and take over to remedy the breach committed by the Plaintiff it would result inter alia the following: 1. Further bottlenecking in stations given the lack of car trains (Currently 2 car trains); 2. Continuous delay in the completion of the Works which would affect the interest of the many other stakeholders including the Ministry of Finance, Ministry of Transport, Suruhanjaya Pengangkutan Awam Darat (SPAD), the Defendant and its subsidiaries; 75 3. More costs will be incurred to maintain the inefficiencies of the current system; and 4. Directly affecting the country’s economy, tourism industry, local traffic congestion and public interest as a whole. [125] The Defendant implored this Court that it would be against public interest for this development to be delayed any further. It is imperative that the Defendant appoint a new contractor in place of the Plaintiff to complete the Works, and any injunction, if granted, would render it unlikely for the Defendant to achieve this targeted date as there would then be a stalemate to the Project. It is this very same stalemate that the Court was seeking to prevent in Kong Wah Housing Development Sdn Bhd v Desplan Construction Trading Sdn Bhd [1991] 3 MLJ 269 at page 271. [126] This Court can follow the conclusion of the Defendant that in the circumstance, considerations of public interest and the practical realities of the situation at hand would combine to significantly shift the balance of convenience in favour of the Defendant to refuse the injunction. [127] The Singapore Court of Appeal case of Maldives Airports Co Ltd and another v GMR Male International Airport Pte Ltd [2013] SGCA 16 is both illustrative and instructive. The High Court in that case granted an 76 injunction under Section 12A of the Singapore International Arbitration Act, which is the equivalent provision under Section 11(1)(h) of the AA 2005. The injunction inter alia, sought to restrain the Maldives Government and the state owned enterprise which oversaw the operations of the airport from taking possession and or control of the Airport or its facilities pending further order by the Singapore court or the arbitral tribunal. This High Court decision was subsequently overruled. In the Court of Appeal, Sundaresh Menon CJ raises inter alia, three issues which are relevant to our present facts. [128] First, as highlighted by the Defendant, as regards to damages being an adequate remedy, Sundaresh Menon CJ had this to say: [56] “…Whatever the relevant period for assessing damages may be, while it is true that passenger numbers and airline traffic may fluctuate, historical data for the Airport and other airports that are similarly situated should provide some basis for prescribing and calculating the loss of profits that may be sustained by the Respondent. In fact, it is reasonable to expect that such data would be recorded by the operators of the Airport, whether this be the Respondent or MACL. Moreover, there are experts who would be able to assist in this task. Thus, any direct loss of profit is 77 calculable, even though the difficulties involved should not be underestimated. At the same time, the difficulties inherent in assessing the damages accruing to the Appellants if the Injunction should ultimately turn out to be unjustified also should not be underestimated. These damages would likely be of a different order of complexity for the reasons outlined below at [68]–[71].” (emphasis added) [129] Likewise here the Defendant submitted that in the event it is shown that the Defendant is not entitled to terminate the Contracts, any losses suffered by the Plaintiff (directly foreseeable and other related losses) is confined and limited to an assessment of damages that it would be contractually entitled had it been allowed to perform the remaining unperformed portion of the Works. There is in short, nothing novel or extraordinarily difficult to assess damages arising out of a wrongful termination of a construction contract. [130] Secondly, in assessing the practicality in granting an injunction, Sundaresh Menon CJ at paragraph [69] stated that: “Moreover, the Injunction reached beyond the scope of the contractual dispute between the parties into the realm of 78 restricting the operations and duties of domestic regulators whose regulatory functions encompass aspects related to the operation of the Airport. According to the Appellants, the Respondent had already relied on the Injunction by writing to the Maldives Civil Aviation Authority requiring it not to cancel the Respondent's aerodrome license. The Respondent had also informed the Maldivian Department of Immigration and Emigration that the latter would be acting unlawfully and in contempt of the Singapore court if visas for any of the Respondent's employees were cancelled. It is crucial here to bear in mind the potential for an interim injunction to affect third parties because of the principle that third parties must not aid or abet a breach, or deliberately frustrate the purpose of an injunction: Steven Gee, Commercial Injunctions (Sweet & Maxwell, 5th Ed, 2004) at para 4.001." (emphasis added) [131] The Defendant summarized by saying that the real source of difficulty in terms of compliance and enforcement of the injunction was due to the vague terms and sheer width of the injunction. It would be extremely cumbersome, particularly for the Maldives Government, to have any certainty of what was required of them in order to ensure that they were acting in compliance with the terms of the Injunction. 79 [132] The Defendant drew a parallel to the present case in that here, the Contracts are in relation to a highly technical and sophisticated Project. It goes without saying that practically, there will be complications in terms of compliance and enforcement of the injunction. As such, the Defendant submitted that there are bound to be practical difficulties and complications involved if the Court is minded to grant the interim injunction. [133] Thirdly, as distilled by the Defendant, Sundaresh Menon CJ stressed that the impact in granting the interim injunction would spill over into and affect the operations of other governmental entities and agencies in the Maldives as seen in paragraph [70] whereby it was stated that: "Other Maldivian governmental bodies involved in the regulation of transportation, tourism and even defence might also have been affected had the Injunction remained in place. The uncertainty in the full extent and reach of the Injunction therefore worked against the Respondent. This was not a point that arose purely as a matter of the drafting of the Injunction. The relationship between the parties was one that concerned the operation of the national airport of a sovereign State. The Respondent wanted to preserve its right to continue that operation under and in accordance with the terms of a complex concession agreement. In these circumstances, it 80 was simply inevitable that the actions of the Respondent would spill over into and affect the operations of other governmental entities and agencies in the Maldives. This was the real source of the difficulty.” (emphasis added) [134] In light of the nature and complexity of the operations at issue, the injunction if granted would place potential restrictions on the Maldives’ State machinery in respect of airport operations. [135] In the present matter, the Defendant analogize that the policy consideration and practical problems in ensuring compliance with the injunctions has to be taken into account when deciding whether an interim injunction should be granted. The affected third parties include government agencies such as the Ministry of Transport, Ministry of Finance, and SPAD. Thus, in the event an interim injunction is granted, the affected parties are not limited to the Plaintiff and Defendant but would involve various stakeholders and third parties. [136] In considering the overall justice of the case, the Defendant stressed that not only has the Project been delayed for 3 years (which may probably be delayed until as late as mid-2017), it should also be noted that the Plaintiff’s Rolling Stock progress in September 2015 was recorded as 81 68.95% whilst in March 2016, it was recorded as 71.0%, a mere 2% progress in 6 months as against the Plaintiff’s planned progress of 21.5%. As at 8 June 2016, the progress was recorded as 71.7%, which is merely a 0.17% increase from March 2016: see exhibit “V” in Enclosure 10. [137] I agree with the Defendant that given the Plaintiff is clearly unable to comply with the timelines stipulated in completing the Works, this Court should not grant an injunction for status quo to remain. Otherwise, not only the Defendant and its stakeholder would be prejudiced, the public at large will further suffer the inconvenience caused by the Plaintiff’s failure to complete the Works. Whether Injunctions are Generally not Allowed to Prevent Termination of a Building, Engineering or Technology Contract [138] There is support for the proposition that generally an injunction is not given to prevent the termination of a building, engineering or technology contract. In Keating on Building Contracts (9th Edition) paragraph 12- 022 at pages 426 and 427, it was stated as follows: “It is thought that the decision in American Cyanamid does not affect the principle that in the ordinary case the contractor cannot obtain an injunction restraining forfeiture by the employer, since 82 this would equate to the ordering of specific performance of the contract. The contractor can be adequately compensated in damages for any wrongful forfeiture.” (emphasis added) [139] Similarly, in Hudson’s Building and Engineering Contracts (12th Edition) at paragraph 7-077, page 1056 it is stated that: “In many of the cases the issue of whether there should be specific performance arises where one party wishes to terminate, and the other wishes to continue. In such circumstances an injunction to stop termination has the practical effect of compelling specific performance on the unwilling party, and the court has to weigh that consideration in its discretion. It should normally be decisive, and the court will not give an order compelling the Employer to allow the Contractor back on to the site: “…an ordinary building contract enables the building contractor to go upon the land for the purpose of conducting building operations so that he can perform his contract and earn his expected profit. His right continues to exist even if the building owner wrongfully repudiates the contract. But the only remedy of the building contractor for infringement of the right is in damages. If he goes on the land against the will of the owner 83 he may be treated as the trespasser.” (This passage was cited from Cowell v Rosehill Racecourse Co Ltd (1937) 56 C.L.R. 605, page 621, line 26-33). (emphasis added) [140] The same text at paragraph 7-072 observed that “a building, engineering or technology contract is unsuitable for specific performance because it is difficult for the court to supervise, and it is a contract for services” (emphasis added). [141] The Defendant further referred to the case of Ericsson AB v EADS Defence and Security Systems Ltd 127 ConLR 168 where the subcontractor’s application for an injunction to prevent the contractor from terminating the contract was refused. Akenhead J at paragraph [47] held that: “In all the circumstances, I do not consider having considered the competing positions of the parties that the “balance of convenience” or, as Lord Donaldson put it, justice requires me to prevent EADS from exercising what is at least on its face and subject to proof of facts a right to terminate. The effect of an injunction to restrain termination would be in effect to require two parties who have fallen out with each other and one of whom has lost confidence 84 in the other to continue to work together in circumstances where they have a sophisticated contract which purports to provide commercial solutions and remedies when a lawful or unlawful termination occurs.” (emphasis added) [142] Conversely, the Courts have generally been inclined to grant injunctions to enforce the employer’s rights arising from a termination. This can be seen in the following two cases below as cited by the Defendant. [143] In the case of Porter v Hannah Builders Pty Ltd [1969] V.R. 673, the parties therein had entered into an agreement for the construction of a school which agreement provided, inter alia, that if the contractor failed to maintain a satisfactory rate of progress a written notice could be served specifying the default and requiring it to be remedied. The plaintiffs here sought an injunction to restrain the defendant from continuing in possession of a building site after the defendant’s employment as contractor had been terminated. Lush J at page 680, line 31-38 held as follows: “To refuse the injunction would mean that the first plaintiff would be compelled to accept performance from the defendant, or that nothing would be done in performance of a contract of 85 public importance for a considerable time. The first of these alternatives is against the general policy of the law to which I have referred; the second is obviously undesirable. If a breach of contract is involved in the resumption of possession by either of the plaintiffs, the defendant will be entitled to damages covering any losses sustained in consequence.” (emphasis added) [144] Our case in point is that of Kong Wah Housing Development Sdn Bhd v Desplan Construction Trading Sdn Bhd [1991] 3 MLJ 269, where the Court upheld an injunction sought by the plaintiff against the defendant from entering, remaining, occupying and/or trespassing on the site and from obstructing and/or disrupting the plaintiff’s endeavours to develop the site after the plaintiff had terminated the defendant’s employment under the contract. It was stated in the headnotes that: “2. A building owner could not be compelled to re-employ a slow contractor, who had his own remedy in damages if the determination was wrongful, and it is virtually impossible for the court to supervise such a building contract.” [145] In the present matter, the Defendant submitted that the Plaintiff’s claims under the VO and EOT claims, would rightly and easily be 86 characterized as totally and purely monetary in nature and the Plaintiff has no compelling reason to insist that termination rights arising from other separate, unconnected clear breaches of contract must be restrained. The Plaintiff’s claim under the Contract is only monetary in the sense that if it is demonstrated that the Defendant was not entitled to terminate the Contract under clause 15.2 of the Principal Contract (in respect of which the Defendant unequivocally says it can lawfully terminate), the Plaintiff is entitled to an assessment of damages relating to the losses (directly foreseeable and other related losses) that it would be contractually entitled had it been allowed to perform the remaining unperformed portion of the Works. With that this Court agrees. [146] Therefore the interim injunction sought vide Enclosures 4 and 5 should be dismissed as the Plaintiff’s remedy, if at all, lies in damages and monetary compensation. [147] Further, an injunction in terms of Enclosures 4 and 5 would in effect be indirectly the interim equivalent of a decree of specific performance of the Principal Contract and SSC, whereby the Defendant would be compelled to continue the relationship with the Plaintiff under a highly 87 technical and sophisticated contract. This is a situation not countenanced in law. [148] I agree with the Defendant that the relationship of trust and confidence required in executing such an intricate technical construction contract is plainly and obviously lacking after the repeated delays and unfulfilled promises of the Plaintiff and hence no specific performance should be decreed. Whether the grant of an Injunction would be contrary to Section 54(f) of the Specific Relief Act 1950 ("SRA") [149] Section 54(f) of the SRA 1950 provides that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. In this regard, Section 20(1) of the SRA 1950 sets out certain types of contracts that cannot be specifically enforced, which includes: 1. Contract for the non-performance of which compensation in money is an adequate relief (Section 20(1)(a)); and 2. Contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, 88 or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms (Section 20(1)(b)). [150] The Defendant referred to the case of Vethanayagam v Karuppiah & Ors [1968] 1 MLJ 283, where the question was whether it was proper to grant an interim injunction (which was sought by motion) at the suit of a member of an unlawful society to restrain other members of that society from violating its rules. The question fell to be decided in relation to paragraph (f) of Section 54 of the Specific Relief (Malay States) Ordinance 1950, of which the present Act is a revised version. The motion was dismissed. Raja Azlan Shah J (as His Royal Highness then was) at page 284C-F held that: “An order for a temporary injunction can be sought only in aid of a prospective order for a perpetual injunction. If, therefore, in the event of the plaintiff's success, he cannot obtain a decree for perpetual injunction, it is not competent for him to ask for a temporary injunction (see Bishun Prashad Sashi Bhusan AIR 1923 Pat 133). In other words, a temporary injunction will not be granted in cases where a permanent injunction is not available under sections 52 to 54 of the Specific Relief (Malay States) Ordinance, 1950. Section 54(f) enacts that an injunction cannot be granted to 89 prevent the breach of a contract the performance of which would not be specifically enforced. This means that a court will not grant an injunction to prevent the breach of a contract if the contract be such as cannot be specifically enforced under the provisions of Chapter II of the Ordinance, for example section 20(b). The grant of injunction therefore is always guided by the same principles as the grant of specific performance of a contract, and if the contract is such as not to be capable of being specifically enforced, no injunction can be granted to prevent its breach.” (emphasis added) [151] The plaintiff in Vethanayagam appealed. The Federal Court (whose judgment was delivered by Suffian FJ) dismissed the appeal but for different reasons: reasons not relevant for present purposes. Their judgment is to be found in [1969] 1 MLJ 146. [152] The case of Vethanayagam was referred in the Federal Court case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147, wherein Abdul Aziz Mohamad FCJ at paragraphs [86] and [87] states the following: - 90 “…The difference between Vethanayagam, on the one hand, and Tan Suan Choo and Bina Satu, on the other, is this, that while the two latter cases came to a stop on the construction that s54 applies to perpetual injunctions, and does not apply to temporary injunctions, Vethanayagam went a step further in thinking that where a perpetual injunction is not available under s54, a temporary injunction cannot be available, not because s 54 applies also to temporary injunctions but as a matter of logic and commonsense on the basis that an order for a temporary injunction 'can be sought only in aid of a prospective order for a perpetual injunction'. Vethanayagam and the thinking in it were not considered in the two other cases. Vethanayagam, however, can only apply in cases where, in the main action, a perpetual injunction is sought which is disallowed by s 54, and, by an application in the main action, an interlocutory injunction to the same effect is sought under O 29 r 1 of the Rules of the High Court 1980 to preserve the status quo pending the trial of the action. In such cases the interlocutory injunction cannot be granted because it would be futile as an aid 91 to a permanent injunction that in any event cannot be granted. To that extent Vethanayagam is still good law.” (emphasis added) [153] In this regard, by analogy, the underlying logic of Vethanayagam and Subashini would apply to an application for an interim injunction pending an arbitration under Section 11(1)(h) of the AA 2005 with the only difference being that instead of a trial, there would be an arbitration. In such instances, the applicable test is very clear. In the event a perpetual injunction is sought in the main suit and is disallowed by Section 54 of the SRA 1950, it will follow that an interlocutory injunction to the same effect sought under inter alia, Section 11(1)(h) of the AA 2005 and/or Order 29 Rule 1 of the ROC 2012 to preserve the status quo pending arbitration will also be disallowed. [154] In Enclosure 4, the Plaintiff contended that an injunction should be granted to injunct the Defendant from terminating the Principal Contract and the SSC pending arbitration on the ground that the Defendant’s Notice to Terminate is unlawful, unconscionable and in bad faith and therefore invalid in fact and law. [155] It is clear that Section 54(f) SRA is enacted by legislature to address cases like the present one. The interlocutory injunction cannot be granted 92 in favour of the Plaintiff because to do so would in substance and in effect amount to granting relief for specific performance of the Principal Contract and SSC. [156] I agree that to grant the injunction would be to produce an unenviable situation where the Defendant would be compelled to continue the relationship with the Plaintiff under a highly technical and sophisticated contract, a relationship where trust and confidence required for such a decree is plainly and obviously not present given the Plaintiff’s conduct in not complying with the Principal Contract requirement in furnishing the Performance Bond. The Defendant will therefore be forced to bear all the risk, including and not limited to the risk of a multi-million project being abandoned at a critical stage because the contractor is not financially capable to continue. [157] On that score alone, this Court would be loathed to grant the interlocutory injunction given that a permanent injunction cannot and should not be granted in the first place. The relief afforded to the Plaintiff, if any, should confine itself to damages. 93 Pronouncement [158] Overall there was no justification for the interim injuction to remain and this Court had discharged the injunction and dismissed both Enclosures 4 and 5. After hearing the parties on costs, this Court awarded costs of RM20,000.00 to be paid by Plaintiff to the Defendant. [159] The Defendant is at liberty to apply for assessment of damages if any suffered because of the injunction based on the undertaking as to damages given by the Plaintiff earlier. Dated: 13 September 2016. - signed - LEE SWEE SENG Judge Construction Court Kuala Lumpur 94 For the Plaintiff : Kevin Prakash and Zaid Abdul Malek (Messrs Mohanadass Partnership) For the Defendant : Rabindra S Nathan, Harjinder Kaur, Oazair Huneid Tyeb and Neoh Jin Kiat (Messrs Shahrizat Rashid & Lee) Date of Decision : 22 July 2016 [This judgment is subject to editorial corrections of typo errors.]

Tika 2.6.0

12AC-7-09/2015

PLAINTIF Lu Strong International Sdn Bhd PEMOHON Petrojet Asia Sdn Bhd DEFENDAN 1. Petrojet Asia Sdn Bhd; 2. Cheng Mong Hee; 3. Anthonysamy A/L Savarimuthu RESPONDEN Lu Strong International Sdn Bhd

19/08/2016

YA DATO' LEE SWEE SENG

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) CIVIL APPEAL NO: 12AC-7-09/2015 BETWEEN PETROJET ASIA SDN BHD (COMPANY NO: 831615-T) ... APPELLANT AND LU STRONG INTERNATIONAL SDN BHD ... RESPONDENT (COMPANY NO: 807216-H) IN THE SESSION COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO: B52C-25-09/2014 BETWEEN LU STRONG INTERNATIONAL SDN BHD (COMPANY NO: 807216-H) ... PLAINTIFF AND 2 1. PETROJET ASIA SDN BHD (COMPANY NO: 831615-T) 2. CHENG MONG HEE (I/C NO: 540527-04-5051) 3. ANTHONYSAMY A/L SAVARIMUTHU (I/C NO: 480114-05-5157) ... DEFENDANTS THE JUDGMENT OF Y.A. TUAN LEE SWEE SENG [1] This is an appeal by Appellant/First Defendant ("D1")) to this Court by a Notice of Appeal dated 7 September 2015 (pages 1-3 Record of Appeal, Vol.1) against the decision of the Sessions Court Judge dated 26 August 2015, wherein the Sessions Court Judge allowed the Respondent’s/Plaintiff’s (“Plaintiff's”) application for leave to record summary judgment (hereinafter referred to as the “Plaintiff's Application”) (pages 4-6 and 7-8 Record of Appeal, Vol. 1). Preliminaries [2] D1 submitted that the Sessions Court Judge erred by failing to take into consideration the chronology of the case as well as the various documents which show that there are disputes and triable issues which can only be resolved by way of a full trial. 3 [3] D1 had set out in its written submission the following chronology of the case: (a) The Plaintiff commenced proceedings on 2 September 2014 by filing the Writ dated 2 September 2014 and the Statement of Claim dated 27 August 2014 against 3 Defendants (pages 11-18 Record of Appeal, Vol. 1). (b) The Plaintiff’s Solicitors did not serve or notify the D1's Solicitors although they had knowledge that the said Solicitors were acting on behalf of D1. (c) The Plaintiff’s Solicitors obtained a Judgment In Default of Appearance dated against D1. (d) Upon D1 having knowledge of the same the D1 applied to the Sessions Court to set aside the Judgment In Default and the Sessions Court dismissed the said application to set aside the Judgment In Default. (e) D1 then appealed to the High Court and the appeal was allowed by consent and the matter was sent back to the Sessions Court. (f) The Plaintiff, without leave of the Sessions Court, amended the Statement of Claim and served the same on the D1’s Solicitors. 4 (g) The Sessions Court allowed the Plaintiff's Application for leave to record summary judgment against D1 and D1 then appealed to this Court against the said decision. [4] Looking at the chronology of events as narrated, I cannot see how they are relevant to this present application of the Plaintiff for summary judgment against D1 other than by way of providing background context. As for the amendments without leave of Court, learned counsel for D1 had later admitted that the Amended Statement of Claim had been endorsed by the Court on 16 April 2015 and that it had been subsequently served on D1's solicitors on 21 April 2015. The amendment was made pursuant to O 20 r 3(1) Rules of Court 2012 ("ROC"). In the event D1 is aggrieved by the amendment, it should have applied to the Court to disallow the amendment under O 20 r 4 ROC but no such application had been made. In that sense I do not find the Table of Comparison of the changes effected by the amendments helpful or relevant in the comparison done to the various paragraphs of the Statement of Claim before and after amendment with respect to paragraphs 2, 4, 5, 6, 8, 15. Clearly there was a mistake in the description of the Plaintiff and D1 with respect to Plaintiff as Sub-Contractor and that it was D1 that had obtained a contract for construction from Jabatan Kerja Raya. 5 [5] In any event the Defendants including D1 could file their Amended Defence and so it cannot be said that any serious prejudice had been caused. Having disposed of the preliminaries, this Court shall proceed the substantive grounds of appeal from the decision of the Sessions Court in granting the Plaintiff summary judgment against D1. Pleadings [6] By the Amended Statement of Claim the Plaintiff had claimed for the payment of RM300,000.00 being agreed compensation for termination of contract, interest at the rate of 8% per annum from 25 June 2014 to the date of judgment and interest at the rate of 5% per annum from date of judgment to the date of full realization. [7] In the Amended Statement of Claim the Plaintiff had pleaded the following facts: (a) The 2nd and 3rd Defendants ("D2 and D3") had arranged for D1 to appoint the Plaintiff as the Sub-Contractor for 10% of the Sub- Contract works. (b) On 4 June 2012 a Sub-Contract was executed between the Plaintiff and D1. 6 (c) The Plaintiff paid D2 and D3 a sum of RM300,000.00 being the finders’ fee and D2 and D3 agreed to refund the said sum in the event the Sub-Contract works did not take off 60 days from the date of the Official Receipt for the payment of the finders’ fee. (d) The Plaintiff gave notice of termination of the Sub-Contract by letter dated 22 January 2014. (e) D1 by letter dated 3 March 2014 agreed to the mutual termination and agreed to make payment of RM300,000.00. [8] D1 by its Statement of Defence had pleaded the following defences and in the Affidavits in Reply had raised the following issues: (a) There are 2 conflicting Statements of Claim with contradicting facts as submitted above. (b) The capacity of the parties are not clear and requires clarification. (c) There is no final agreement between the parties as the same was varied. (d) The letter dated 26 June 2014 is a without prejudice letter and ought not to have been adduced by the Plaintiff. (e) The Plaintiff's Solicitors' letters dated 11 June 2014 and 2 July 2014 are contradicting with the Plaintiff's claim. 7 Whether there is a triable issue of the capacity of the parties [9] Learned counsel for D1 pointed out that in the Original Statement of Claim it was stated as the Sub-Contractor, where the Plaintiff had awarded a Sub-Contract to D1. However, in the Amended Statement of Claim D1 was the one who awarded the Sub-Contract to the Plaintiff. The capacities of the parties were stated differently at 2 different times. [10] May I state the obvious here, which is this, that amendments are allowed to be made where there has been a genuine mistake on stating the description of the parties. Here the mistake was instead of stating the Plaintiff was the Sub-Contractor, it had mistakenly stated D1 to be the Sub- Contractor. Clearly from the Sub-Contract parties are left on no doubt as to who is who in the contract. This is the kind of error where no one should capitalise on it and so justifying a full trial. [11] As can be seen from the Sub-Contract Agreement dated 4 June 2012 at pages 138-151 of the Record of Appeal Vol 2, the Plaintiff is referred to at page 138 as the Sub-Contractor and D1 as the Main Contractor. It was further stated at Recital A that: "The Main Contractor has secured a contract to undertake the contract works in respect of the project known as "Cadangan Projek 8 Menaik Taraf Jalan Morak- Kebakat Cabang Empat, Tok Mek Ngah, Fasal 2 (Reka dan Bina) (hereinafter referred to as "the Project"). The owner of the Project is Jabatan Kerja Raya, Government of Malaysia (hereinafter referred to as "the Client").” If there could be a doubt as to any mistaken identity the Sub-Contract Agreement further spelt out in Recital B as follows: "The Main Contractor is desirous of appointing and the Sub- Contractor hereby accepts the appointment by the Main Contractor to carry out the works in respect of the Project (the "Contract Works" (as sub-contractor) as authorized and stipulated under the Sub-Contract." [12] Again at paragraph 5 or the Amended Statement of Claim (page 20 Record of Appeal, Vol. 1), the Plaintiff had pleaded that D2 and D3 had arranged for D1 to appoint the Plaintiff as the Sub-Contractor. D1 at paragraph 7 of the Statement of Defence (page 26 Record of Appeal, Vol. 1) had denied having knowledge of any arrangement with D2 and D3. That of course was something that D1 was at liberty to plead. The question is: does that have a jot on the Plaintiff's claim which is based on a contract by D1 to pay the Plaintiff' the agreed sum of RM300,000.00 after the mutual termination of the Sub-Contract? I cannot see how the mere denial by D1 9 could justify the need to proceed to trial as the fact of a Sub-Contract having been entered into between the Plaintiff and D1 is what is relevant and not who was instrumental in arranging for this Sub-Contract to be entered into. [13] D1's learned counsel drew the Court's attention to paragraph 7 of the Amended Statement of Claim (page 20 Record of Appeal, Vol. 1), where the Plaintiff had pleaded that in consideration of the arrangement as stated above, the Plaintiff paid the D2 and D3 a finder's fee of RM300,000.00, which D2 and D3 agreed to return in the event the Sub-Contract works did not proceed. [14] It appears that the Sessions Court Judge had misconceived the facts as at paragraph 4 of the Grounds of Judgment (page 6 Supplementary Record of Appeal), when the Sessions Court Judge stated that, “Atas lantikan, Plaintif telah membayar RM300,000.00 kepada Defendan Pertama sebagai finders’ fee yang merupakan 3.5% daripada kos keseluruhan pembinaan bagi projek tersebut”. As this appeal is by way of a re-hearing this Court need not have to agree with the Sessions Court Judge on this particular finding which is contrary to the Plaintiff's pleaded case. However, as I have said before, between the Plaintiff and D1, the 10 question is whether D1 had also agreed to pay the Plaintiff this sum of RM300,000.00 and for that, this Court must be satisfied if there is a concluded contract as pleaded for such a payment that is borne out by the documents referred to in the Plaintiff's affidavits. [15] Further, it was further highlighted that at paragraph 5 of the Grounds of Judgment (page 6 Supplementary Record of Appeal), the Sessions Court Judge stated that, “Resit Rasmi tersebut menyatakan persetujuan Defendan Kedua dan Ketiga bahawa bayaran finders’ fee tersebut akan dikembalikan kepada Plaintif sekiranya projek tersebut tidak dapat dilaksanakan di dalam tempoh 60 hari dari tarikh penerimaan bayaran finders’ fee”. [16] Moreover, it was submitted that the Official Receipt at page 152-153 Record of Appeal, Vol 2, is executed by D2 and D3 and that these D2 and D3 do not have any relationship D1 and so the question was raised: so why is the payment of the finders’ fee related to D1? This question has not been answered and can only be answered with the D2 and D3 giving oral evidence during the full hearing of this matter. [17] I must be pardoned for not been able to appreciate this line of argument. A trial is not to be had for the purpose of satisfying our curiosity 11 of some intriguing inquiries. Here, there is no need for one to know why D1 had agreed to pay RM300,000.00 to the Plaintiff for payment which the Plaintifff had paid to D2 and D3 now that the contract between the Plaintiff and D1 had been mutually terminated. It had not been pleaded that there had been fraud or coercion or misrepresentation and there had been no suggestion that there had been no consideration for the contract. [18] It was further argued by D1's learned counsel that in the Official Receipt it is stated that the works are to be implemented within 60 days from the date of payment of the finders’ fee. However, in the Sub-Contract, there is no mention of any time period for the commencement of works (pages 152-153 Record of Appeal, Vol 2). By reason thereof the question was raised by D1: on what basis is D2 and D3 able to specify the time period? D1 further said that the role of D2 and D3 is important as there are no documents or Affidavit evidence by D2 and D3. By reason thereof, it was argued, a trial ought to be held to ascertain the role of D2 and D3. [19] Again I fail to see the rationale for a trial merely because D2 and D3 had chosen not to file any application and affidavit to set aside the judgment in default entered by the Plaintiff against D2 and D3. 12 [20] Learned counsel for D1 further asked: Is the Plaintiff’s claim about the refund of the finder's fee? It was argued that this is a triable issue that can only be resolved by a trial as the Plaintiff is claiming RM300,000.00 from D1 as well as from D2 and D3. [21] However, as can be seen from the Amended Statement of Claim at page 17 of Record of Appeal Vol 1, the Plaintiff's claim against D1 is for agreed compensation under the mutual termination of the Sub-Contract whereas the Plaintiff's claim against D2 and D3 is for the return of the finders’ fees of RM300,000.00. At any rate D2 and D3 are perfectly capable of defending themselves or at least D1 would be in a position to inform them about a default judgment that had been entered against them. [22] Alternatively, if the stand of D1 is that the payment to the Plaintiff should come from D2 and D3 jointly being the parties that had received the money from the Plaintiff, then D1 could always file a claim against D2 and D3 for an indemnity in the event that D1 is found liable to pay the Plaintiff. D1 had not seen it fit to do this and surely it cannot now be a ground for saying that a trial ought to be proceeded with so that the whys and wherefores of the agreement to pay the sum of RM300,000.00 as 13 consideration for the mutual termination of the Sub-Contract Agreement may be explored further! Whether there is a triable issue on the agreement to pay agreed compensation of RM300,000.00 by D1 to the Plaintiff [23] In the Sub-Contract there were no terms as to the time period for the commencement of the Sub-Contract works. However in the Official Receipt dated 6 June 2012 (at page 153 of the Record of Appeal Vol 2) issued by D2 and D3 for the receipt of the part payment of the finders' fees of RM300,000.00, it was provided that the said sum shall be refunded to the Plaintiff in the event that the Project fails to be implemented within a period of sixty (60) days from the date of receipt of this money. [24] Pursuant to the aforesaid the Plaintiff by its letter dated 22 January 2014 (pages 172-173 Record of Appeal, Vol. 2), proceeded to terminate the Sub-Contract as follows: "Please be informed that the above project which (was) scheduled to start work in 2012 but until today there is no sign of site possession in order to start work. 14 As such, we have no choice but to proceed with mutual termination of contract and demand a sum of RM300,000.00 (Ringgit Three Hundred Thousand Only) as compensation of delay from you." [25] The above letter was captioned: "Re : Cadangan Projek Menaik Taraf Jalan Morak-Kebakar Cabang Empat, Tok Mek Ngah, Fasal 2 (Reka dan Bina) - Mutual Termination of Contract" [26] D1 by its letter dated 3 March 2014 (pages 154-158 Record of Appeal, Vol. 2), agreed to this proposal of a mutual termination and to the payment of compensation of RM300,000.00 on or about 15 March 2014 “in full and final settlement by reason of the termination of the said Sub- Contract Agreement." This letter is the lynchpin of the Plaintiff's claim and is reproduced in full below for its import and implication: PETROJET ASIA SDN BHD (Company No. 831615-T) The Petroleum Project & Technical Consultations Company Our Ref: Petitioner/Mal/Kel/Tumpat/03032014/1530-jfa Date : 3rd March 2014 LU STRONG INTERNATIONAL SDN. BHD A-2-1 Level 2, 157 Hampshire Place No. 1, Jalan Mayang Sari 50405 Kuala Lumpur 15 Attention: Mr. Liu Zhi Fu Managing Director Dear Sir, Re: “Cadangan Projek Menaik Taraf Jalan Morak-Kebakar Cabang Empat, Tok Mek Ngah, Fasa (Reka Dan Bina)” Mutual Termination of Sub-Contract Agreement. _______________________________________________________ Reference is made to the above matter and to you letter dated 22/1/2014 under Ref No: LS/PA/CKH/PC1803 and your letter dated 11/2/2014 under Ref No: LSI/PA/CKH/PC 1102 as well as our emails to your dated 29.1.2014 and 14.2.2014 respectively. 2. Please be advised that a Sub-Contract Agreement dated 4th June 2012 was executed between Yourself and Petrojet Asia Sdn. Bhd., in respect of the abovementioned Project (hereinafter referred to as the said Sub-Contract Agreement). 3. Further be advised that by your letter dated 22.1.2014 you had proposed a mutual termination of the said Sub-Contract Agreement and a payment of RM300,000.00 (RM: THREE HUNDRED THOUSAND ONLY) as compensation for the termination of the said Sub-Contract Agreement. 4. Pursuant to the above by our email dated 29.1.2014 we had informed you that we are agreeable to your request to mutually terminate the said Sub-Contract Agreement and to pay a compensation in the sum of RM300,000.00 (RM: THREE HUNDRED THOUSAND ONLY) on or about 15th March 2014 in full and final settlement by reason of the termination of the said Sub-Contract Agreement. 5. In view of the above we hereby confirm that the said Sub- Contract Agreement has been mutually terminated as agreed and that upon the payment of RM300,000.00 (RM: THREE HUNDRED THOUSAND ONLY) in full and final settlement as stated above, you shall have no further claims whatsoever against Petrojet Asia Sdn Bhd. 16 6. Kindly acknowledge the above by signing herein. Yours faithfull, Petrojet Asia Sdn.Bhd. (Company No. 831615-T) Witnessed by: - sgd - - sgd – Johnathan Francis Arokiasamy Ananda Kumar Rajalingam Executive Chairman Chief Executive Director We, Lu Strong International Sdn. Bhd., acknowledge the acceptance of the above. Yours faithfully, Witnessed by: Lu Strong International Sdn. Bhd. (Company No: 807216-H) - sgd – - sgd – Li Zhi Fu Chen Keng Hong Managing Director MyKad No. 540813-08-5853 [27] One can see that the Plaintiff's letter of 22 January 2014 read together with D1's letter of 3 March 2014 as reproduced above, have all the elements of a valid, binding and enforceable contract in that there is an offer and acceptance, a considerations and a clear intention to create a legal relation. Even D1's letter of 3 March 2014 is by itself a valid, binding and enforceable contract as the Plaintiff had acknowledged acceptance of the terms and conditions of the agreement by signing at the last page of the said letter, acknowledging and accepting the terms and conditions. 17 [28] D1's letter of 3 March 2014 constituted a concluded contract arising out of a mutual termination of the Sub-Contract Agreement. As at 3 March 2014 a concluded settlement contract had come into being. There could well be further letters between the parties or through their solicitors after the above date, but unless they constituted further terms that the parties have subsequently agreed, these letters cannot unmake what has been made i.e. a concluded contract in D1's letter of 3 March 2014. [29] We shall take a look at some of these letters to ascertain if further terms have been agreed to either vary, alter or add or subtract from the concluded contract of 3 March 2014. There was the letter at pages 190-191 of the Record of Appeal Vol 2, from the Plaintiff's solicitors Messrs Azwar & Associates dated 11 June 2014 to D1 in the form of a Letter of Demand to demand for the sum of RM300,000.00 within 14 days failing which the Plaintiff shall treat the Sub-Contract Agreement as having been breached by D1 whereupon the Plaintiff shall be entitled to exercise its right under the same and charge interest on a daily basis at the rate of 8% per annum. [30] D1 replied through its solicitors Messrs Soraya Jabid, Deborah & Co in a letter dated 26 June 2014 at pages 193-194 of the Record of Appeal 18 Vol 2. What is relevant is at paragraph 6 and 7 of the said letter reproduced below: "6. We have been instructed by our client that there was no agreement by our client by letter dated 3 March 2014 on the payment of interest of 8% per annum as stated at paragraph 4 of your above mentioned letter (of 11 June 2104) and by reason thereof your client does not have any claim for interest as stated in your said letter. 7. Further, we have been instructed by our client that by reason of the delays in the implementation of the said Project, our client had explained to Mr. Chan Keng Hong on the current financial situation of our client. In view of the aforesaid our client has instructed us to request for your client's indulgence to grant an extension of time until the end of October 2014 to make full payment of the sum of RM300,000.00 to your client." (emphasis added) [31] Plaintiff's solicitors replied by their letter of 2 July 2014 to say that they would consider giving an extension of time till end of August 2014 for D1 to make full payment of RM300,000.00 on condition that one Mr Johnathan Francis Arokiasamy who is D1's Executive Chairman and another Mr Ananda who is D1's Executive Director, each give a written personal guarantee to pay the said sum by end of August 2014. The 19 Plaintiff's solicitors further reiterated their right to charge interest at the rate of 8% per annum for such extended time as the Plaintiff may give. [32] At the hearing of the appeal, learned counsel for the Plaintiff conceded that the interest term of 8% per annum cannot be unilaterally imposed subsequently as it was not contained in the concluded contract of 3 March 2014 in D1's letter that they had agreed and countersigned. That however does not and cannot mean that what had crystallized into a contract in D1's letter of 3 March 2014 has now been abrogated and dissolved merely because D1 is asking for the Plaintiff's indulgence to extend time for D1 to pay and the Plaintiff was unwilling to give an extension of time without the payment of interest and without D1 furnishing 2 guarantors in the persons suggested. As the parties could not agree on the further terms, what had been concluded remains. The Plaintiff is thus perfectly entitled to sue and proceed with summary judgment on the sum claimed. [33] The learned Session Court Judge referred to the Court of Appeal case no. B-02-1288-08/2014 Lim Ban Kay @ Lim Chiam Boon v Kilang Kelapa Sawit Morib Sdn Bhd & 2 others, where Justice David Wong Dak Wah held that: 20 “16. In our view the just mentioned provisions were crystal clear in that the intention of the contracting parties was that no amendment to the four agreements could be made unless by a subsequent written document. In the case of Perry v Shaffields (1916) 2 Ch 187 at page 192 Lord Cozen Hardy made a pertinent point when he said: “Though, when a contract in letters, the whole correspondence should be looked at, yet if once a definite offer has been made, and it has been accepted without qualification, and it appears that the letter of offer and acceptance contained all the terms agreed on between the parties the complete contract thus arrived at cannot be affected by subsequent negotiation. When once it is shown that there is a complete contract, further negotiations between the parties cannot, without the consent of both, get rid of the contract already arrived at.” (emphasis added) [34] Applying the above dicta to the facts of the present appeal, a concluded contract having been arrived at by D1's letter of 3 March 2014, 21 that contract cannot be rendered less than final or unenforceable as being still in a state of flux as the parties were continuing to negotiate. The terms of payment of RM300,000.00 as agreed consideration for the compensation had been agreed for the mutual termination of the Sub- Contract Agreement. Though the parties could not agree on the extension of time to pay and on interest payable and on the 2 guarantees to be furnished, that does not reopen or annul for fresh negotiation the whole of the settlement. [35] This Court is also in agreement with learned counsel for the Plaintiff when he referred to the case of Hasrat Usaha Sdn Bhd v Pati Sdn Bhd [2011] 2 CLJ 863, where Court of Appeal held at page 871: “[10] ... Although the plaintiff disputed the correctness of the amount stated in the said letter, ... there was a clear and unequivocal admission by the defendant that there was a balance of RM1,310,806.02 due to the plaintiff. Up to that amount, the defendant was under obligation to pay to the plaintiff. It does not make any difference that the defendant was merely enquiring and seeking confirmation of the correctness of the figure. The facts still remained that the defendant's own accounting records 22 show that there was an outstanding sum of RM1,310,806.02 payable to the plaintiff. Accordingly the appeal of the defendant is dismissed with costs." (emphasis added) [36] In the present appeal, not only was there a clear unequivocal agreement to mutually terminate the Sub-Contract Agreement with the payment of the agreed compensation sum of RM300,000.00 but there was also the further letter of D1's solicitors dated 26 June 2014 seeking the Plaintiff's indulgence for an extension of time till end of October 2014 to make the agreed payment. Whether the letter of 26 June 2013 marked "Without Prejudice" is admissible [37] Learned counsel for D1 argued that the letter dated 26 June 2014 is marked as “Without Prejudice” and ought not to have been adduced and the Court ought not to have taken the said letter into consideration (pages 192-194 Record of Appeal, Vol 2) [38] Learned counsel for D1 referred to the Federal Court case of Malayan Banking Berhad v Foo See Moi [1981] 1 MLRA 641 (pages 53- 60 “ABOA”) it is stated that “... it is settled law that letters written without prejudice are inadmissible in evidence”. Further, in the case of Oh Kuang 23 Liang v Associated Wood Industries Sdn Bhd [1995] MLRH 78 it was stated that all correspondences marked as "without prejudice" cannot be adduced in any affidavit and the Court pursuant to Order 41 Rules of Court 2012 is able to strike out the said paragraph and exhibit. [39] The Plaintiff’s learned counsel submitted that D1’s solicitor’s letter dated 26 June 2014 was a letter requesting for an extension of time for D1 to make payment to the Plaintiff. Prior to this letter, both parties i.e. the Plaintiff and D1 had already agreed to terminate the Sub-Contract Agreement and D1 had agreed to pay the Plaintiff a compensation sum of RM300,000.00. In such a situation, when the debt is not in dispute, “without prejudice” had no application. [40] As authority for that proposition the Plaintiff referred to the Federal Court case of Ted Bates (M) Sdn Bhd v Balbir Singh Jholl [1979] 2 MLJ 257, where Federal Court held that: “... The learned Judge considered that that letter should have been regarded as written without prejudice. With respect, we think he is wrong. This has no application to a case where a man says he owes another a certain sum but merely asks for time to repay the sum. ... 24 The question of prejudice has no application unless a person is in dispute or negotiation with another at the time.” [41] With that proposition of law this Court would agree. [42] Further as correctly pointed out by the Plaintiff, D1 had used that letter in their affidavit in support which been affirmed by Johnathan Francis on 11 November 2014 in their application to set aside the Judgment in Default. [43] In D1's affidavit in support which was affirmed by Johnathan Francis on 11 November 2014, D1 had adduced its solicitor’s letter dated 26 June 2014 as exhibit JFA-5. Therefore, D1 had waived the privilege of the said letter. [44] There is merit in that argument. Learned counsel for the Plaintiff referred to the case of Dusun Desaru Sdn Bhd & Anor v Wang Ah Yu & Ors [1999] 5 MLJ 449, where Abdul Malik Ishak J (as His Lordship then was) held that: “... The veil of privilege may be waived, but both parties must consent to the waiver. As with the forms of other privilege, a waiver may be implied by conduct. There was thus a waiver on the part of the 25 plaintiffs of the privilege shield when they first introduced the ‘without prejudice’ letter in encl 4...” [45] I have no good reason to disagree with that sound proposition of law. At any rate even without reference to the said letter, there is more than ample evidence for the Sessions Court Judge to have come to the conclusion that there has been a concluded contract on the settlement in D1's letter of 3 March 2014 which terms and conditions of the settlement were agreed by the Plaintiff as indicated in their counter signing the said letter in the acknowledgment and acceptance of the terms and conditions. Whether this is a case where for some other reason there ought to be a trial [46] The law on summary judgment is clear. I need only to refer to the Supreme Court case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, which Supreme Court held that: “Held (1) in an application under O.14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. 26 A complete defence need not be shown. The defence set up need only show that there is a triable issue. (2) Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application.” (emphasis added) [47] In the case of HSBC Bank Malaysia Bhd (formerly known as Hong Kong Bank Malaysia Bhd) v LH Timber Products Sdn Bhd (formerly known as Ho Lim Sawmill Sdn Bhd) & Ors [2005] 6 MLJ 625, Justice Abdul Malik Ishak J. (as His Lordship then was) observed as follows: “25. I must categorically say that this appeal was unique – in that it did not involve any dispute as to the facts. That being so it was certainly suitable for summary judgment and I was rather 27 surprised that the SAR had dismissed the plaintiff’s application for summary judgment in encl 5. The defendants themselves have admitted that they were and are owing to the plaintiff the sum of RM5,020,294.29. In a letter dated 28 October 1999 from the first defendant to the plaintiff, the defendants readily admitted owing to the plaintiff the sum of RM5,020,294.29 and appealed for re- structuring of the load repayments. Again, letters from the first defendant dated 16 December 1999 and 24 December 1999 showed that the defendants admitted owing that sums. All these three letters of admissions by the first defendant were exhibited in the relevant affidavits and they were certainly damning evidence against the defendants. In the face of such solid evidence, summary judgment should have been given against the defendants in favour of the plaintiff and the appeal in encl 10 should be allowed with costs. The file should be closed forthwith bearing in mind that it was a 1999 file. But, in an attempt to write a speaking judgment, I must not stop here. I must proceed further and I have this to say. ... 28 28. In my considered view, in the context of the present appeal, it was rather obvious that the defendants have no defence on the merits against the plaintiff’s claim ...” (emphasis added) [48] Based on the principles enunciated above I have no hesitation in granting summary judgment for the sum claimed except that interest should not be at 8% per annum because clearly there was no agreement on that. The learned Sessions Court Judge had ordered interest to run at 8% per annum on the sum of RM300,000.00 from 25 June 2014 presumably from the Notice of Demand of the Plaintiff's solicitors dated 11 June 2014 giving D1 14 days to pay up failing which interest at 8% per annum shall be charged. Learned counsel for the Plaintiff had conceded this. [49] Other than the issue of interest for which this Court on appeal can make the necessary order, should the whole of the decision of the Sessions Court be set aside and the matter to be sent back for trial in the Sessions Court? [50] Learned counsel for D1 said that this case on appeal is one that falls under the category of where "there ought for some other reason to be a trial" under O 14 r 3(1) ROC. The following cases were cited. 29 [51] In the case of Miles v Bull [1968] 1 QB 258 at pages 265-266, the Court stated: “... the defendant can obtain leave to defend if the defendant satisfies the court that "there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial"... If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated then the concluding words are invoked.” [52] In the case of Concentrate Engineering Pte Ltd v United Malayan Banking Corp Bhd [1990] 1 LNS 41 the Singapore High Court stated. “The words there ought for some other reason to be a trial seem to give the court adequate powers to confine O 14 to being a good servant and prevent it from being a bad master”. [53] Further, in the case of Chiew Soon v Tay Tai Aun [1990] 1 CLJ (Rep) 726 at p 728, the Court stated that “A complete defence need not be shown. The defence set up need only show that there is a triable issue of question or that for some reason there ought to be a trial”. 30 [54] This principle had also been applied in the case of Lin Securities Pte v Noone & Co Sdn Bhd & Anor [1989] 2 CLJ (Rep) 76 at p 77, the Court stated that, ”Order 14 provides that a defendant may show cause against an application for summary judgment by affidavits or otherwise, and as such the defendant is entitled to show at the hearing of the O 14 application that over and above what has been pleaded in the statement of defence he had other defences”. [55] Whilst there may be cases that would justify going for trial where witnesses are called and where triable issues may be fully tried and determined, here is a case where no useful purpose may be served by going for trial. There is no need to go for trial merely to uncover the relationship between D2 and D3 with D1 in an investigation exercise. Both D2 and D3 have not bothered to defend this suit by the Plaintiff. They are perfectly able to protect their interest if so minded. The same documents that have already been produced in this application would be produced at the trial. As the documents speak for themselves this Court sees no justification of going for trial to satisfy one's curiosity as to the relationship that D2 and D3 may have with D1. 31 Pronouncement [56] This Court had therefore dismissed the appeal and as learned counsel for the Respondent/Plaintiff had conceded that there was no agreement on interest at 8% per annum from 25 June 2014, this Court had varied that part of the judgment to normal Court interest of 5% per annum on RM300,000.00 to run from date of Amended Statement of Claim i.e. 16 April 2015 to date of realization. [57] I had also ordered costs of RM5,000.00 to be paid by D1 as Appellant to the Plaintiff as Respondent in this appeal. Dated: 19 August 2016 - signed - LEE SWEE SENG Judge High Court Kuala Lumpur For the Appellant : Deborah Kaur (Messrs Soraya Jabid, Deborah & Co.) For the Respondent : S C Cheah and Noor Amirul Nazreen Anas (Messrs Azwar & Associates) Dates of Decision: 3 March 2016

Tika 2.6.0

BA-24-49-01/2016

PLAINTIF Modern Freight Express DEFENDAN 1. Afzarizzal bin Abdul Wahab 2. Pengarah Kastam Negeri 3. Ketua Pengarah Kastam 4. Kerajaan Malaysia

08/08/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=751191dd-52e0-4b0f-8511-231fb79df4a4&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO: BA-24-49-01/2016 Dalam perkara Seksyen 128(3) & Seksyen 128(4) Akta Kastam 1967 (Akta 235) Dan Dalam perkara Seksyen 132 Akta Kastam 1967 (Akta 235) Dan Dalam perkara Perintah Kastam (Larangan Mengenai Import) 2012 Dan Dalam perkara Seksyen 41 Akta Relif Spesifik 1950 (Akta 137) Dan Dalam perkara Aturan 15 Kaedah 16 Kaedah-Kaedah Mahkamah 2012 ANTARA 2 MODERN FREIGHT EXPRESS ...PLAINTIF DAN 1. AFZARIZZAL BIN ABDUL WAHAB 2. PENGARAH KASTAM NEGERI 3. KETUA PENGARAH KASTAM 4. KERAJAAN MALAYSIA ...DEFENDAN- DEFENDAN ALASAN PENGHAKIMAN (Kandungan 1) A. PENGENALAN [1] Plaintif di dalam kes ini adalah sebuah perniagaan perkongsian bernama Modern Freight Express. Perniagaan yang dijalankan Plaintif adalah menyediakan perkhidmatan penghantaran perkapalan termasuk membuat pengisytiharan dan pelepasan barangan yang dibawa masuk atau keluar kawasan zon bebas Pelabuhan Klang Malaysia. 3 [2] Defendan Pertama (Afzarizzal bin Abdul Wahab) adalah Penolong Pengarah Kastam di Bahagian Penguatkuasaan, Jabatan Kastam DiRaja Malaysia, Selangor. [3] Defendan Kedua adalah Pengarah Kastam Negeri Selangor yang merupakan pegawai kanan yang bertanggungjawab mengelola, mengawasi dan mengawalselia Defendan Pertama. [4] Defendan Ketiga adalah Ketua Pengarah Kastam Malaysia yang juga adalah pegawai kanan yang bertanggungjawab mengelola, mengawasi dan mengawalselia Defendan Pertama dan Defendan Kedua. [5] Defendan Keempat adalah Kerajaan Malaysia dan merupakan majikan kepada Defendan Pertama, Defendan Kedua dan Defendan Ketiga. Defendan Keempat pada setiap masa yang matan adalah bertanggungan secara vikarius ke atas segala tindakan, keingkaran dan/ atau peninggalan oleh Defendan Pertama, Defendan Kedua dan Defendan Ketiga tersebut di dalam menjalankan kewajipan statutori mereka. 4 [6] Defendan Pertama, Defendan Kedua, Defendan Ketiga dan Defendan Keempat selepas daripada ini kadangkala akan dirujuk sebagai Defendan-Defendan. [7] Plaintif telah memfailkan satu Saman Pemula (Kandungan 1) di Mahkamah ini pada 14.1.2016. Di dalam Saman Pemulanya Plaintif bukan sahaja memohon relif berbentuk deklarasi dan ganti rugi tetapi juga memohon Mahkamah ini untuk memutuskan dua persoalan undang-undang di mana menurut Plaintif pemutusan atau jawapan kepada dua soalan undang-undang tersebut akan membangkitkan relif atau remedi yang dipohon oleh Plaintif. [8] Dua soalan undang-undang yang Plaintif memohon untuk diputuskan oleh Mahkamah ini adalah seperti berikut: 1. Samada berdasarkan kepada satu pentaksiran yang benar dan tepat terhadap subseksyen 128(3) dan subseksyen 128(4) Akta Kastam 1967 (Akta 235) bahawasanya dalam keadaan di mana tiada pendakwaan dijalankan dan dimana tuntutan sewajarnya dibuat oleh Plaintif terhadap ‘Beer’ (selepas ini dirujuk sebagai “barang tersebut”) didalam 40 buah kontena masing-masing seperti di Lampiran “A”, yang disita 5 oleh defendan-defendan pada 9.11.2015, defendan-defendan yang gagal dan/atau enggan melepaskan barang tersebut adalah tidak berkuasa disisi undang-undang untuk terus menyita barang tersebut selepas tamat tempoh satu bulan kalendar dari tarikh penyitaan tanpa dirujuk kepada Mahkamah adalah menyalahi undang-undang; dan 2. Samada berdasarkan kepada satu pentafsiran yang benar dan tepat terhadap subseksyen 128(3) Akta Kastam 1967 (Akta 235) kegagalan dan/atau keengganan defendan-defendan untuk melepaskan barang tersebut kepada plaintif dan kegagalan dan/atau keengganan defendan- defendan untuk merujuk tuntutan plaintif terhadap barang tersebut kepada Mahkamah selepas tamatnya 1 bulan kalendar dari tarikh penyitaan barang tersebut hanya menjadikan penyitaan barang tersebut sebagai tidak sah. [9] Manakala, relif yang dipohon oleh Plantif yang dipetik di dalam Saman Pemulanya adalah seperti berikut: “ MAKA Plaintif menuntut: 1. Satu Deklarasi bahawa penyitaan barang tersebut oleh defendan pertama adalah menyalahi undang-undang dan dengan demikian tidak sah. 6 2. Gantirugi khas, gantirugi am dan gantirugi teladan ditaksir oleh Pendaftar Mahkamah yang Mulia ini dan dibayar oleh defendan-defendan kepada Plaintif. 3. Faedah pada kadar 5% atas jumlah gantirugi yang diperintahkan dibawah Perenggan 2 diatas dari tarikh penyitaan barang tersebut sehingga penyelesaian penuh. 4. Kos permohonan ini dibayar oleh Defendan-defendan. 5. Lain-lain relif selanjutnya yang Mahkamah Mulia ini dianggap sesuai dan adil.” B. Latar belakang kes [10] Sebelum Mahkamah ini mempertimbangkan permohonan Plaintif, wajar kiranya latar belakang kes yang membawa kepada Plaintif memfailkan permohonan dinyatakan di sini. 10.1 Pada sekitar 16.9.2015 dan 17.9.2015, Plaintif telah dilantik oleh beberapa konsainor-konsainor untuk mengambil pemilikan dan menguruskan perisytiharan, pelepasan dan perkapalan konsainmen barangan “beer” dan “apple cider” yang diangkut di 7 dalam empat puluh (40) buah kontena masing-masing dari Pelabuhan Utara, Pelabuhan Klang untuk dihantar kepada konsignee-konsignee di Singapura secara berperingkat. 10.2 Atas perlantikan tersebut, Plaintif telah telah diarahkan untuk mengambil milikan atas barang tersebut yang disimpan di dalam empat puluh (40) buah kontena tersebut di Pelabuhan Utama, Pelabuhan Klang. Seterusnya konsainor-konsainor tersebut telah menyerahkan secara kurier kepada Plaintif sesalinan Bill of Lading, Invois dan Packing List bagi barang tersebut dalam 40 buah kontena tersebut untuk tujuan penghantaran barang tersebut dari Pelabuhan Utara, Pelabuhan Klang ke Singapura. 10.3 Menurut Plaintif, mereka telah mendapat kelulusan Lembaga Pelabuhan Klang (LPK) untuk membawa masuk barangan tersebut ke Zon Bebas Pelabuhan Utara melalui pengikraran Borang-Borang yang ditetapkan. 8 10.4 Bagi mengetahui status dan kedudukan barang dagangan di dalam 40 kontena tersebut, Plaintif telah membuat semakan secara on line melalui ‘online Container Query’ dan telah mendapati bahawa pihak kastam telah menahan 40 kontena tersebut di Zon Bebas Pelabuhan Utara. Semakan seterusnya dengan pejabat kastam, Plaintif telah dimaklumkan bahawa 40 buah kontena tersebut telah ditahan dan disita oleh pihak kastam semenjak 9.11.2015. 10.5 Plaintif melalui surat peguamcara mereka Tetuan JR Ravendren & Associates bertarikh 19.11.2015, telah menuntut Defendan Kedua supaya melepaskan barang dagangan di dalam 40 buah kontena tersebut tetapi permintaan Plaintif telah tidak diendahkan oleh Defendan Kedua. 10.6 Pada menjalankan kuasa-kuasa yang diberi di bawah Seksyen 114 Akta 235, Defendan Pertama telah mengeluarkan suatu Notis Penyitaan di bawah Seksyen 114 Akta 235 (Notis Sitaan 114) bagi mengesahkan penyitaan barang dagangan di dalam 9 40 buah kontena tersebut dan Notis Sitaan 114 ini telah diterima oleh Plaintif pada 30.11.2015. 10.7 Plaintif sekali lagi melalui surat peguamcara mereka Tetuan JR Ravendren & Associates bertarikh 30.11.2015, telah menuntut supaya Defendan Kedua melepaskan barang dagangan di dalam 40 buah kontena tersebut namun permintaan Plaintif telah tidak diendahkan oleh Defendan Kedua. 10.8 Memandangkan Defendan-Defendan telah enggan melepaskan barang dagangan di dalam 40 kontena tersebut, Plaintif telah memfailkan Saman Pemula di Kandungan 1 memohon relif-relif seperti yang dinyatakan di perenggan 8 dan perenggan 9 penghakiman. C. Bantahan Atas Afidavit Balasan Defendan-Defendan [11] Defendan-Defendan telah menentang permohonan Plaintif. Bagi menentang permohonan Plaintif, Ranjit Singh Hardev Singh (Ranjit Singh) Penolong Kanan Pengarah Kastam II, Cawangan Operasi 10 telahpun mengikrarkan afidavit-afidavit Jawapan/Balasan di Kandungan 4, Kandungan 8 dan Kandungan 11. [12] Pendeposan atau pengikraran afidavit jawapan oleh Ranjit Singh ini telah dibantah oleh Plaintif atas alasan Ranjit Singh bukanlah pegawai penyitaan (seizing officer) ataupun pegawai penyiasat bagi barang dagangan yang disita. Menurut Plaintif, Ranjit Singh tidak mempunyai locus atau kapasiti undang-undang untuk mengikrarkan afidavit jawapan Defendan-Defendan. [13] Adalah menjadi dapatan Mahkamah ini bahawa bantahan Plaintif tersebut adalah tidak berasas kerana Ranjit Singh adalah pegawai kastam yang mempunyai kelayakan wajar bagi mendepos afidavit jawapan kerana beliau adalah Penolong Pengarah Kanan II di mana Defendan Pertama adalah di bawah penyeliaan beliau. Di samping itu Ranjit Singh adalah terlibat secara langsung dengan kes ini dan beliau merupakan pegawai yang bertanggungjawab atas pengendalian sitaan 40 kontena tersebut. Maka dengan itu kapasiti Ranjit Singh untuk mengikrarkan afidavit jawapan tidaklah boleh dipertikaikan. 11 D. Kes Defendan [14] Defendan-Defendan telah menentang keras permohonan Plaintif atas dua alasan: i. Penahanan 40 kontena barang dagangan tersebut yang telah dibuat pada 9.11.2015 dan kemudiannya disita dengan pengeluaran notis sitaan di bawah Seksyen 114 Akta bertarikh 27.11.2015 adalah penahanan dan penyitaan yang sah menurut undang-undang. ii. Penahanan dan penyitaan berterusan barang dagangan tersebut adalah sah di sisi undang-undang kerana Plaintiff bukanlah tuanpunya barang dagangan di dalam 40 kontena tersebut di sisi undang-undang. Semasa penyiasatan dijalankan oleh Defendan-Defendan, tidak ada mana-mana wakil Plaintif telah hadir untuk membuktikan ketuanpunyaan mereka ke atas barangan tersebut. [15] Defendan-Defendan mengakui bahawa barang dagangan di dalam 40 kontena telah ditahan di dalam Zon Bebas Pelabuhan Utara 12 semenjak 9.11.2015. Penahanan telah dibuat berdasarkan maklumat dan melalui sistem dahulu serta telah dibuat secara berperingkat- peringkat. [16] Setelah penahanan melalui sistem dibuat, pihak Kastam telah membuat semakan ke atas 40 kontena tersebut. Pihak Kastam telah mendapati bahawa di dalam Borang Inward Manifest iaitu Borang K4, barang dagangan yang diikrarkan di dalam Borang K4 adalah berbeza dengan barang dagangan yang diikrarkan di dalam Borang ZB1 yakni Borang Zon Bebas. Perbezaan diskripsi atau jenis barang dagangan di dalam Borang K4 dan Borang ZB1 telah disenaraikan oleh Ranjit Singh di dalam jadual di perenggan 12, Kandungan 4 (Afidavit Jawapan). Jadual tersebut diperturunkan di bawah ini: 13 14 15 [17] Perbezaan-perbezaan pengikraran di dalam kedua-dua borang K4 dan ZB1 telah menimbulkan syak wasangka yang menasabah (reasonable suspicion) di pihak Kastam dan oleh itu, Pengarah Risik telah mengarahkan supaya 40 kontena tersebut ditahan dan disita menurut Seksyen 114 Akta 235 kerana disyaki melakukan kesalahan di bawah seksyen 133(1)(a) Akta 235 inter alia, “makes, orally or in writing, or signs any declaration, certificate or other document required by this Act which is untrue or incorrect in any particular”. [18] Menurut Defendan-Defendan, Notis Sitaan 114 ini bukan sahaja telah dikeluarkan kepada Plaintif tetapi juga kepada syarikat-syarikat seperti yang dieksibitkan di “R-3”, Kandungan 4. Di samping itu, menurut Defendan-Defendan Borang K4 bagi kesemua 40 kontena tersebut tidak merujuk Plaintif sebagai tuanpunya dan tambahan kepada itu Plaintif atau wakilnya juga tidak hadir pada masa siasatan bagi mengesahkan yang mereka adalah tuanpunya barang dagangan tersebut. Maka, dengan itu barang dagangan tersebut tidak boleh diserahkan kepada Plaintif. 16 E. Hujahan Plaintif [19] Peguam Plaintif di sebaliknya telah menghujahkan bahawa pengisuan Notis Sitaan 114 bertarikh 27.11.2015 oleh Defendan Pertama adalah sesuatu yang afterthought kerana pada masa Notis Sitaan 114 itu dikeluarkan, Plaintif telahpun membuat tuntutan perlepasan barang dagangan yang tersebut melalui surat peguamcara mereka bertarikh 19.11.2015. Menurut peguam Plaintif surat bertarikh 19.11.2015 ini adalah merupakan notis yang memadai bagi menekankan bahawa Plaintif adalah tuanpunya barang dagangan di dalam 40 kontena tersebut dan ianya juga merupakan satu notis tuntutan yang dibuat menurut undang-undang. [20] Peguam Plaintif seterusnya telah menghujahkan bahawa Plaintif telahpun mendapat kelulusan LPK untuk membawa masuk barang dagangan tersebut ke dalam Zon Bebas Pelabuhan Utara dan membawanya keluar bagi tujuan penghantaran melalui kapal laut ke Singapura. Penahanan berterusan barang dagangan tersebut sejak 9.11.2015 oleh Defendan-Defendan dengan tiada pendakwaan dibawa terhadap mana-mana pihak dan penahanan dan penyitaan yang melampaui satu bulan kalendar dan penyitaan barang 17 dagangan ini telah tidak dirujuk ke mahkamah, maka menjadikan penahanan berterusan barang dagangan tersebut adalah satu penahanan yang tidak sah. [21] Adalah menjadi hujahan Plaintif juga, Defendan-Defendan adalah berkewajipan statutori melepaskan barang dagangan tersebut kepada Plaintif. Kegagalan Defendan-Defendan melepaskan barang dagangan tersebut kepada Plaintif adalah satu yang bertentangan dengan Perkara 13 Perlembagaan Persekutuan yang mana Plaintif sebagai tuanpunya barang dagangan tersebut telah dinafikan hak terhadapnya. [22] Plaintif juga telah menafikan pengataan Defendan-Defendan yang Plaintif tidak hadir dengan apabila penyiasatan dijalankan oleh Defendan. Menurut Plaintif, pekongsi Plaintif telah hadir bersama peguamcara Plaintif. [23] Plaintif menghujahkan juga bahawa tidak ada sebarang permit diperlukan untuk barangan tersebut kerana barangan tersebut adalah di dalam Zon Pelabuhan Bebas kerana di bawah Customs 18 (Prohibition of lmport) Order 2012, barang dagangan hanya dianggap diimpot apabila ianya dibawa keluar dari Zon Bebas tersebut ke dalam kawasan prinsipal Kastam. [24] Plaintif telah bersandarkan kepada otoriti-otoriti yang di senaraikan di bawah ini bagi menyokong kesnya. i. Mehdi Dadashi Havadaragh v. Ketua Pengarah Jabatan Kastam Di Raja Malaysia & ors [2015] 4 MLJ 646 (CA), ii. Sunthararaju Pachayappan v. Jabatan Kastam DiRaja Malaysia [2010] 3 CLJ 865 (HC), iii. SS Legend Nautilus Sdn Bhd v Hamzah Gauth & 3 Ors [2013] 3 CLJ 947, iv. Soong Chee Kong v. Public Prosecutor [1951] 17 MLJ 5 and v. Matrix Material Sdn Bhd v Mohd Asri bin Yahya & Ors (Saman Pemula No: MT3-24M-141-2010. F. Tafsiran sebenar seksyen 128 Akta 235 [25] Dua soalan undang-undang yang diajukan oleh Plaintif kepada Mahkamah ini pada dasarnya memohon Mahkamah ini membuat tafsiran subseksyen 128(3) Akta 235, di mana apabila suatu penyitaan dan penahanan barangan telah dibuat oleh Jabatan Kastam dan sekiranya tidak ada pendakwaan dibawa terhadap 19 mana-mana pihak atas barangan yang disita dalam tempoh satu bulan dan perkara sitaan barangan tersebut telah tidak dirujuk kepada mahkamah dan barangan tersebut tidak dilepaskan, maka adakah penahanan barangan tersebut secara berterusan adalah sesuatu bertentangan dengan undang-undang dan menjadikan penyitaan barangan itu menjadi taksah. [26] Menurut Plaintif, sekiranya Mahkamah memutuskan jawapan- jawapan kepada kedua-dua soalan tersebut adalah positif maka Plaintif berhak mendapat satu deklarasi bahawa penyitaan barangan tersebut adalah menyalahi undang-undang dan dengan demikian ianya tidak sah dan Plaintif juga dengan itu berhak kepada gantirugi khas, gantirugi am dan gantirugi teladan untuk ditaksirkan oleh Mahkamah. [27] Plaintif di dalam kes ini cuba mendapatkan satu pemutusan daripada Mahkamah ini berkenaan pembacaan subseksyen 128(3) dan subseksyen 128(4) Akta 235 yang mana sekiranya pembacaannya adalah seperti dihujahkan oleh Plaintif iaitu apabila suatu penahanan dan penyitaan barangan telah dibuat oleh pihak kastam dan jika 20 selepas tempoh penahanan dan penyitaan itu telah melampaui sebulan kalendar dan tidak ada pendakwaan terhadap mana-mana pihak berkaitan dengan barangan tersebut dan penyitaaan itu juga tidak dirujuk kepada Mahkamah, penahanan berterusan barangan tersebut adalah tidak sah di sisi undang-undang dan menjadikan penahanan dan penyitaan barangan tesebut adalah tidak sah. Sekiranya pembacaan subseksyen 128(3) Akta 235 adalah sedemikian, maka Plaintif berhak untuk mendapatkan suatu deklarasi bahawa penahanan dan penyitaan barang dagangan di dalam 40 kontena itu tidak sah. Begitu juga dengan penahanan dan penyitaan berterusan barang dagangan tersebut adalah tidak sah dan Plaintif dengan itu berhak dipampas gantirugi atas penafian haknya terhadap barang dagangan tersebut. [28] Pertamanya, perlu dinyatakan di sini bahawa Plaintif telah datang ke Mahkamah ini untuk satu pemutusan pembacaan terhadap peruntukan subseksyen 128 (3) Akta 235. Untuk itu keseluruhan Seksyen 128 Akta 235 perlu diperturunkan di bawah ini. 21 Good seized in respect of which there is no prosecution, or the proceeds of sale thereof, are forfeited if not claimed within one month 128. (1) If there be no prosecution with regard to any goods seized under this Act, such goods or the proceeds of sale of such goods which are held pursuant to paragraph 115(1)(c) shall be taken and deemed to be forfeited at the expiration of one calendar month from the date of seizure of the goods unless, before such expiration— (a) a claim to such goods or the proceeds of sale of such goods is made under subsection (2); (b) a written application is made for the return of such goods under paragraph 115(1)(a) or (b); or (c) such goods are returned under the said paragraph (a) or (b). (2) Any person asserting that he is the owner of such goods or the proceeds of sale of such goods, as the case may be, and that they are not liable to forfeiture may give written notice to a senior officer of customs that he claims the same. (3) On the expiration of the period mentioned in subsection (1), or, if a decision is made earlier that there be no prosecution with regard to the goods, on the making of the decision the senior officer of customs shall, if such goods or the proceeds of sale of such goods 22 are not taken and deemed to be forfeited under that subsection, refer the claim to the Director General who may direct that such goods or the proceeds of sale of such goods or the security furnished under paragraph 115(1)(a) or (b), as the case may be, be released, or may direct such senior officer of customs, by information in the prescribed form, to refer the matter to a Magistrate of the First Class for his decision. (4) The Magistrate of the First Class shall issue a summons requiring the person asserting that he is the owner of the goods or the proceeds of sale of such goods, and the person from whom the goods were seized, to appear before him, and upon their appearance or default to appear, due service of such summons being proved, the Magistrate of the First Class shall proceed to the examination of the matter, and upon proof that an offence against this Act or any regulations made there under has been committed and that such goods were the subject matter, or were used in the commission, of such offence, shall order such goods or the proceeds of sale of such goods or the amount secured under paragraph 115(1)(a) or (b), as the case may be, to be forfeited, or in the absence of such proof, may order the release of such goods or the proceeds of sale of such goods or the security furnished under paragraph 115(1)(a) or (b), as the case may be. 23 (5) In any proceedings under subsection (4), section 119 shall apply to the person asserting that he is the owner of the goods and to the person from whom they were seized as if such owner or person had been the defendant in a prosecution under this Act. [29] Tajuk Seksyen 128 Akta 235 ini jelas memperuntukkan “Good seized in respect of which there is no prosecution, or the proceeds of sale thereof, are forfeited if not claimed within one month”. Tajuk ini menyatakan bahawa di dalam hal barangan yang telah disita di mana tiada pendakwaan berkaitan dengannya, atau hasil jualan daripada barangan tersebut, adalah dilucuthak sekiranya ianya tidak dituntut dalam masa satu bulan. Tajuk ini memperuntukkan hak untuk melucuthak barangan atau hasil jualannya kalau tiada tuntutan dibuat mengenainya di buat oleh mana-mana pihak. [30] Subseksyen 128(1) Akta 235 seterusnya memperuntukkan bahawa hak bagi menganggap barang dagangan yang disita dilucutkan hak (shall be taken and deemed to be forfeited at the expiration of one calendar month from the date of seizure of the goods) kerana tiada pendakwaan dibawa apabila tempoh penyitaan telah melampaui 24 satu bulan dari tarikh penyitaan ini akan hanya boleh digunapakai (invoked) apabila tiga keadaan di bawah ini tidak berlaku: (a) a claim to such goods or the proceeds of sale of such goods is made under subsection (2); (b) a written application is made for the return of such goods under paragraph 115(1)(a) or (b); or (c) such goods are returned under the said paragraph (a) or (b). [31] Dalam erti kata lain subseksyen 128(1) Akta 235 ini memperuntukkan bahawa apabila tidak ada pendakwaan dibawa apabila tempoh penyitaan telah melampaui satu bulan kalendar, wujud atau timbul hak ke atas pihak yang membuat penyitaan untuk tanggapan perlucutan hak barangan yang disita. Namun hak ini tidak timbul sekiranya tiga keadaan yang dinyatakan di dalam subseksyen 128(1) (a), atau 128(1)(b) atau Seksyen 128(c) berlaku. [32] Seterusnya subseksyen 128 (2) Akta 235 pula memperuntukkan bahawa mana-mana pihak yang membuat tegasan (asserting) bahawa ia adalah tuanpunya barangan tersebut dan barangan tersebut tidak boleh dilucuthak boleh memberi notis secara bertulis kepada pegawai kanan Kastam dan menuntut barangan tersebut. 25 [33] Subseksyen 128(3) Akta 235 pula memperuntukkan bahawa apabila tempoh yang dinyatakan di dalam Subseksyen 128(1) itu tamat dan keputusan mengenainya dibuat tiada pendakwaan, maka pegawai kanan kastam hendaklah sekiranya barangan atau hasil barangan tersebut tidak diambil atau dianggap dilucutkan hak merujuk kepada Ketua Pengarah yang boleh mengarahkan samada barangan tersebut dilepaskan dengan jaminan di bawah perenggan 115(1) (a) atau (b) ataupun mengarahkan bahawa perkara barang dagangan itu dirujuk kepada Majistret Kelas Pertama. [34] Subseksyen 128(4) Akta 235 pula memperuntukkan bahawa apabila perujukan dibuat kepada Mahkamah berkenaan, maka suatu inquiri atau pemeriksaan hendaklah dijalankan oleh Majistret dan keputusan mengenai barangan itu hendaklah dibuat oleh Majistret berkenaan. [35] Justeru bagi Mahkamah ini, daripada pembacaan teliti dan menyeluruh ke atas peruntukan Seksyen 128 Akta 235 ini, sebenarnya peruntukan Seksyen 128 Akta 235 memperuntukkan seperti yang berikut: 26 i. ia adalah merupakan satu peruntukan yang membolehkan satu tanggapan perlucutanhak dibuat (deemed to be forfeited) ke atas barangan yang disita atau hasil jualan barangan yang disita. ii. tanggapan perlucutkan hak ini akan timbul atau wujud di pihak yang membuat penyitaan apabila sekiranya tidak ada pendakwaan dibawa terhadap mana-mana pihak atas barangan yang disita atau hasil jualan barangan yang disita apabila tempoh penyitaan telah melampaui satu bulan dari tarikh penyitaan. iii. Namun, hak tanggapan perlucutanhak ini tidak timbul atau wujud, sekiranya tiga keadaan yang dinyatakan di bawah subsekyen 128(1) berlaku. [36] Justeru itu, pada dasarnya Seksyen 128 Akta 235 memberi hak atau kuasa perlucutanhak atau forfeiture di dalam keadaan yang diterangkan dengan jelas oleh subseksyen 128(1), subseksyen 128(2) dan subseksyen 128(3). 27 [37] Seksyen 128 tidak langsung memperuntukkan bahawa pendakwaan hendaklah dibawa dalam tempoh satu bulan dari tarikh penahanan dan penyitaan. Di dalam hal ini, Mahkamah ini suka merujuk kepada apa yang telah diputuskan oleh Hakim Rhodzariah Bujang di dalam kes The Director General Of Customs Malaysia And The Director Of Customs, Sarawak & Ors. V. Chong Yin Kim Trading Sdn Bhd & Ors And Another Appeal [2016] 9 CLJ 130 di mana Hakim Rhodzariah Bujang telah membuat tafsiran peruntukan Seksyen 128 dan Seksyen 114 Akta 235 dan perbezaan kedua-duanya dengan mengatakan berikut: “(1) Sections 128 and s. 114 of the Act are distinct provisions. Section 128 does not stipulate that the prosecution of the offence for the good seized must be done within one month from the date of seizure. Section 128 of the Act only deemed forfeiture of the goods seized if there was no prosecution within one month from the date of the seizure unless the three situations as stated in s. 128(1)(a) to (c) happened...” [38] Plaintif telah menghujahkan bahawa Defendan-Defendan berkewajipan untuk merujuk perkara penyitaan kepada mahkamah 28 sekiranya tiada pendakwaan dibawa selepas satu bulan dari tarikh penyitaan. Mahkamah ini perlu menekankan bahawa Plaintif sebenarnya khilaf mengenai undang-undang berkaitan Seksyen 128 khasnya subseksyen 128(1) dan subseksyen 128(3). Pertamanya, Plaintif telah khilaf berkenaan bahawa tempoh satu bulan yang dinyatakan di dalam subseksyen 128(3), tempoh satu bulan itu bukanlah bagi maksud pendakwaan mestilah dijalankan dalam tempoh satu bulan dari tarikh penyitaan tetapi tempoh masa itu adalah bagi maksud hak tanggapan perlucutan hak. Keduanya berkenaan rujukan kepada Mahkamah. Subseksyen 128(3) seterusnya memperuntukan bahawa sekiranya pegawai kanan kastam membuat keputusan bahawa barang dagangan atau hasil jualannya dianggap dilucutkan, ia hendaklah merujuk kepada Ketua Pengarahnya yang boleh mengarahkan samada barang dagangan atau hasil jualan tersebut dilepaskan dengan sekuriti di bawah Seksyen 115 ATAUPUN merujuk kepada Majistret Kelas Pertama. [39] Mahkamah ini perlu juga menekankan di sini menurut subseksyen 128(3) Akta 235, Ketua Pengarah hanya boleh mengarah rujukan kepada mahkamah setelah keadaan-keadaan ini berlaku: 29 (i) tempoh penahanan dan penyitaan telah melampaui satu bulan dari tarikh penyitaan dan tiada pendakwaan dibawa, dan (ii) pegawai kanan kastam telah membuat keputusan bahawa barang dagangan itu dianggap dilucutkanhak , dan iii. pegawai kanan kastam merujuk perkara ini kepada Ketua Pengarah untuk arahannya (Penekanan oleh Mahkamah ini) [40] Di dalam kes ini, keadaan dalam item (ii) dan item (iii) masih belum berlaku, di mana pegawai kanan kastam masih belum membuat keputusan untuk anggapan perlucutanhak barang dagangan di dalam 40 kontena tersebut, makanya prosidur lucut hak belum terlaksana untuk pegawai kanan kastam merujuk kepada Ketua Pengarahnya bagi arahan-arahan beliau. [41] Plaintif di dalam mengajukan soalan undang-undangnya telah memahami subseksyen 128(3) sebagai berikut: “di mana apabila suatu penyitaan dan penahanan barangan telah dibuat oleh Jabatan Kastam dan sekiranya tidak ada pendakwaan di bawa terhadap mana-mana pihak atas barangan yang disita dalam tempoh satu 30 bulan dari tarikh penyitaan dan penyitaan barangan tersebut tidak dirujuk kepada mahkamah dan barangan tersebut tidak dilepaskan, maka adakah penahanan barangan tersebut secara berterusan adalah sesuatu bertentangan dengan undang-undang dan menjadikan penyitaan barangan itu menjadi taksah.” [42] Berdasarkan pembacaan peruntukan sebenar subseksyen 128(3) Akta 235, Plaintif telah nyata khilaf di dalam pembacaannya. Oleh itu adalah menjadi dapatan Mahkamah ini soalan undang-undang yang diajukan oleh Plaintif adalah satu soalan yang salah tanggap dan pra- matang kerana di dalam kes ini persoalan atau isu penahanan berterusan tidak wujud kerana bagi barang dagangan di dalam 40 kontena yang disita semenjak 9.11.2015 walaupun telah melampaui tempoh satu bulan, pegawai kanan kastam masih belum membuat keputusan untuk ianya (barang dagangan tersebut) dianggap dilucutkan bagi tindakan seterusnya diambil. Justeru, di dalam keadaan kes ini tidak timbul persoalan mengenai wujudnya penahanan barangan tersebut secara berterusan adalah sesuatu bertentangan dengan undang-undang dan menjadikan penyitaan barangan itu menjadi tak sah. 31 [43] Memandangkan soalan-soalan undang-undang yang diajukan Plaintif adalah berdasarkan pembacaan salah akan peruntukan Seksyen 128 Akta 235 maka kedua-dua soalan tersebut tidak perlu dijawab oleh Mahkamah ini kerana Mahkamah ini telah menerangkan secara terperinci pembacaan sebenar Seksyen 128 Akta 235. Atas alasan ini sahaja, Plaintif sememangnya tidak berhak untuk deklarasi yang dipohon dan permohonannya di Kandungan 1 hendaklah ditolak. Benarkah penahanan dan penyitaan yang dilaksanakan oleh Defendan tidak sah di sisi undang-undang [44] Namun, untuk tujuan kesempurnaan, Mahkamah ini akan mempertimbangkan benarkah penyitaan yang dibuat oleh Defendan- Defendan tidak sah di sisi undang-undang. [45] Undang-undang mengenai kuasa penahanan dan penyitaan oleh pihak Kastam adalah jelas dan jitu, Seksyen 114(1) Akta 235 jelas memperuntukkan seperti berikut:- 32 “(1)All goods in respect of which there has been, or there is, reasonable cause to suspect that there has been committed any offence against this Act or any regulation made thereunder, or any breach of any of the provisions of this Act or of any regulation made thereunder or of any restriction or condition subject to or upon which any licence or permit has been granted, together with any receptacle, package, conveyance, vessel not exceeding two hundred tons nett registered tonnage, or aircraft other than an aircraft engaged in international carriage, in which the same may have been found or which has been used in connection with such offence or breach, and any books or documents which may reasonably be believed to have a bearing on the case, may be seized by any officer of customs in any place either on land or in territorial waters.” (Penekanan Mahkamah ini) [46] Apa yang dikatakan reasonable cause to suspect telah diterangkan di dalam kes Hock Huat Chan Sdn Bhd v Assan Bin Mohammad & Ors [2008] 4 CLJ 512. Hakim Mahkamah Tinggi Wong Dak Wah (YA ketika itu) telah memutuskan bahawa: 33 “In my view, there is no difference in the two tests and my reason for saying so is this. Both sec. 114(1) and sec. 132 of the Customs Act are provisions concerning seizure. The former states that as long as the relevant officers had ‘reasonable cause to suspect’, any seizure made on that promise is deemed to be legal. If that seizure is legal it is legal for the whole Act. To construe a different test for the phrase “reasonable or probable cause” appearing in sec. 132 of the Customs Act does not make sense and contrary to sensible interpretation of provisions in statute. What is “reasonable cause to suspect” can of course only be gathered from the circumstances of each individual case.” [47] Di dalam kes ini tindakan Defendan-Defendan menyita barangan tersebut adalah mengesyaki secara munasabah bahawa terdapat perlanggaran di bawah seksyen 133(1)(a) Akta 235 di mana dengan jelasnya deskripsi barangan di dalam Borang K4 adalah berlainan dengan diskripsi Borang ZB1. 34 [48] Di bawah Seksyen 52 Akta 235 jelas diperuntukkan bahawa “the master or agent of every vessel” mestilah menyerahkan Borang K4 kepada “proper officer of the customs”. Seksyen 52 Akta 235 berbunyi: “Save as provided in subsection (3), the master or agent of every vessel, other than a local craft, arriving in any customs port, shall, within twenty- four hours after arrival and before any cargo is unshipped, present to the proper officer of customs at the customs office a true inward manifest of the vessel in the National Language or in English, substantially in the prescribed form, certified by such master or agent, together with a duplicate copy thereof containing all particulars as to marks, numbers and contents of each package intended to be landed at the customs port, together with the names of shippers and consignees of the same, if known to him, and the proper officer of customs may, at his discretion, demand, in addition, a complete manifest of the whole cargo of the vessel and complete list of stores on board such vessel.” [49] Tambahan itu, ‘Customs port’ menurut Rules 11, Law And Regulations Applicable To The Malaysia Royal Customs And Excise Department 2006/07 dinyatakan berikut: “The ports, landing places, places of import and export, routes for import and export, airports inland clearance depot and inland customs stations 35 set forth in the First Schedule to these Regulations are prescribed as customs port, legal landing places, places of import and export, routes for import and export, customs airport inland clearance depot and inland customs station, for the import or export of such goods, as are prescribed in the said Schedule.” manakala Jadual 1 yang menyatakan Pelabuhan Klang merupakan ‘customs port’, “the wharves and jetties of the Port Klang Port Authority on the east bank of the Klang Straits between Sungei Tiga and Sungei Puloh”. Maka, walaupun pelabuhan itu adalah di dalam kawasan “Free Trade Zone”, Borang Manifest K4 mestilah diberi kepada pihak kastam. [50] Dengan perbezaan yang sangat ketara berkenaan jenis barangan di dalam pengikraran Borang K4 dan ZB1, adalah menjadi dapatan Mahkamah bahawa Defendan-Defendan mempunyai asas mengesyaki secara munasabah “reasonable suspicion” adanya perlanggaran di bawah Akta 235 dan keraguan menasabah bagi pihak kastam itu menyita 40 kontena tersebut. Oleh yang demikian penyitaan yang dibuat terhadap barang dagangan di dalam 40 kontena adalah atas syak wasangka menasabah yang suatu kesalahan di bawah Seksyen 133 Akta 235 dilakukan. 36 [51] Plaintif telah menghujahkan bahawa Notis Sitaan 114 yang dikeluarkan oleh Defendan Pertama adalah sesuatu yang afterthought kerana ia telah hanya dikeluarkan selepas surat Plaintif bertarikh 19.5.2015. Mahkamah ini berpandangan bahawa hujahan ini adalah tidak berasas kerana penahanan dan penyitaan yang dibuat adalah berasaskan syak wasangka menasabah “reasonable suspicion” dan menurut Seksyen 114(3) Akta 235, Defendan telah dengan mengeluarkan Notis Sitaan 114 tersebut kepada Plaintif dan dan juga syarikat-syarikat perkapalan lain seperti di dalam Eksibit “RS-3”, Kandungan 4 kerana Defendan-Defendan tidak dapat menentusahkan “ownership” barangan tersebut. Surat bertarikh 19.11.2015 bukanlah suatu surat oleh tuanpunya barangan yang menuntut barangan kepunyaannya tetapi adalah surat dari peguam yang mewakili seorang ejen. Justeru, itu Notis Sitaan 114 dikeluarkan. Seksyen 114(3) Akta 235 yang memperuntukkan seperti berikut:- “(3) Whenever any goods, conveyances, vessels or aircraft are seized under this Act, the seizing officer shall forthwith give notice in writing of such seizure and the grounds thereof to the owner of such goods, if 37 known, either by delivering such notice to him personally or by post at his place of abode, if known: Provided that such notice shall not be required to be given where such seizure is made on the person, or in the presence of the offender or the owner or his agent, or in the case of vessel or an aircraft, in the presence of the master or pilot, as the case may be.” [52] Mahkamah ini tidak dapat menerima hujahan Plaintif bahawa Defendan berkewajipan statutori untuk melepaskan barang dagangan di dalam 40 kontena tersebut kepadanya apabila tuntutan telah dibuat oleh Plaintif melalui surat peguamcaranya. Seperti yang dinyatakan awal tadi, subseksyen 128 (1) memperuntukkan bahawa barang dagangan yang disita boleh dianggap dilucutkan hak selepas tempoh satu bulan kecuali sebelum tempoh satu bulan itu tamat, 3 keadaan berlaku: 1. a claim to such goods or the proceeds of sale of such goods is made under subsection (2); 2. a written application is made for the return of such goods under paragraph 115(1)(a) or (b); or 38 3. such goods are returned under the said paragraph (a) or (b). [53] Di dalam kes Plaintif ini, Plaintif sebagai ejen telah menuntut pemulangan barang dagangan di dalam 40 kontena tersebut secara bertulis melalui dua surat pegumcaranya Tetuan JR Ravendren & Associates bertarikh 19.11.2015 dan 26.11.2015. Namun Defendan- Defendan telah enggan melepaskan barang dagangan tersebut atas alasan penyiasatan masih berjalan dan Plaintif bukanlah tuanpunya barang dagangan tersebut. [54] Oleh yang demikian, sekiranya Plaintif berpandangan bahawa Plaintif adalah tuanpunya barangan tersebut dan berhak ke atas barang dagangan di dalam 40 kontena tersebut (asserting) dan berpendapat bahawa penyitaan yang telah dilaksanakan adalah salah dan tidak sah di sisi undang-undang maka opsyen yang terbuka kepada Plaintif adalah memfailkan tindakan writ saman terhadap Defendan- Defendan bagi memohon remedi-remedi undang-undang yang sewajarnya termasuklah satu deklarasi bahawa penyitaan yang telah 39 dilaksanakan oleh Defendan-Defendan adalah salah dan tidak sah di sisi undang-undang. [55] Di dalam hal ini, di bawah satu tindakan writ inilah, Plaintif mempunyai beban bagi membuktikan keempunyaannya terhadap barang dagangan di dalam 40 kontena tersebut dengan pengemukaan keterangan-keterangan yang mencukupi untuk membuktikan kesnya terhadap Defendan-Defendan di atas imbangan kebarangkalian seperti yang diperuntukkan di bawah subseksyen 128(2) Akta 253 “any person asserting that he is the owner of such goods or ....”. [56] Tindakan melalui Saman Pemula yang difailkan oleh Plaintif di hadapan Mahkamah ini bukanlah satu tindakan yang membolehkan remedi deklarasi seperti yang dipohon Plaintif kerana pegemukaan keterangan-keterangan dan beban pembuktian ke atas Plaintif adalah sebagaimana menurut seksyen 101, 102, 103 dan 104 Akta 235 Keterangan 1950. 40 [57] Berdasarkan alasan-alasan di atas, permohonan Plaintif di dalam Kandungan 1 ditolak dengan kos sebanyak RM5000.00 kepada Defendan-Defendan. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 08 Ogos 2016 Peguam Plaintif - Tetuan J.R. Ravendren & Associates J.R. Ravendren Peguam Defendan - Kamar Penasihat Undang-Undang Negeri Selangor Norliza Zulkifli

Tika 2.6.0

22NCVC-1384-11/2012

PLAINTIF YEOH ENG KONG DEFENDAN 1. GOH BAK MING 2. Personal Representative of FEI CHONG MING, DR, deceased 3. SEE KENG LEONG 4. YAHYA BIN RAZALI 5. LEOW YANG SEONG @ LIEW PIN 6. NG WENG CHEONG 7. POH GAIK LYE 8. CHIN WOOI KEAT 9. CHIN YI NING 10. PETER CHEN HING WOON 11. YOGANATHAN A/L PARAMASIVAM 12. TACFORCE INTERNATIONAL (MALAYSIA) SDN BHD 13. WYNSUM HEALTHY LIVING (M) SDN BHD (IN LIQUIDATION) 14. STEVIGROUP CORPORATION LTD 15. LIQUA HEALTH CORPORATION BERHAD 16. LIQUA HEALTH MARKETING (M) SDN BHD

08/08/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=36580890-63c9-49b9-996e-27eca805b616&Inline=true

Failed Extraction

BA-24-415-04/2016

PLAINTIF Lembaga Pelabuhan Kelang DEFENDAN Artistic Biofuels Sdn. Bhd.

29/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6632042e-3a89-4fdb-a063-5b436fda2b60&Inline=true

Microsoft Word - BA-24-415-04-2016 Lembaga Pelabuhan Kelang Lwn Artistic Biofuels Sdn Bhd 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMON NO. BA-24-415-04/2016 Dalam perkara Kaveat Persendirian bertarikh 21.03.2016 yang didaftarkan melalui Perserahan No. 14734/2016 ke atas Pajakan Negeri Lot No. 7894, No. Hakmilik 73724, Mukim Klang, Daerah Klang, Negeri Selangor Darul Ehsan DAN Dalam perkara Seksyen 327, 329 dan 417 Kanun Tanah Negara DAN Dalam perkara Aturan 7 dan Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 BETWEEN LEMBAGA PELABUHAN KELANG [sebuah badan berkanun yang ditubuhkan berdasarkan peruntukan-peruntukan Akta Pihak Berkuasa Pelabuhan 1963 (Akta 488] … PLAINTIFF AND 2    ARTISTIC BIOFUELS SDN BHD … DEFENDANT GROUNDS OF JUDGMENT (Enclosure 1– Removal of Caveat) A. BACKGROUND FACTS [1] The present Originating Summons by the Plaintiff is an application to remove a private caveat entered by the Defendant unto the Plaintiff’s land. [2] From the outset, this Court must emphasise the Defendant’s total absence of caveatable interest against the Plaintiff’s land. The Defendant fallibly attempted to prove caveatable interest in two tranches of arguments. Firstly, vide an allegation that the Defendant had entered into an agreement with the Plaintiff that the Plaintiff had allegedly agreed to lease out the land to the Defendant. Peculiarly enough, this supposed agreement with the Plaintiff was never mentioned or included in the Defendant’s Form 19B in lodging the caveat. Secondly, vide an allegation that the Defendant had entered into an Asset Sales Agreement with the receivers of the current lessee of the land in which the same Asset Sales Agreement had already lapsed and been cancelled for the 3    Defendant’s own breach of the Asset Sales Agreement. The factum of the lapsing and cancellation was maliciously concealed by the Defendant and was only brought to the knowledge of this Court by the Plaintiff. [3] Lembaga Pelabuhan Klang (“Plaintiff”) is the registered owner of a massive plot of land held under Master Title Pajakan Negeri 7324, lot 67894, Daerah dan Mukim Klang, Negeri Selangor Darul Ehsan which is approximately a whopping 404.4 hectares in size (“subject land”). The subject land is managed by the Plaintiff’s lawful attorney, Port Klang Free Zone Sdn Bhd (“PKFZ”). PKFZ had demarcated the subject land into numerous portions, in which these smaller portions were then leased to third parties. PKFZ then collects lease rental from lessees for and on behalf of the Plaintiff. [4] One of the many lessees of the smaller portions was Biodiesel S. P. Sdn Bhd (“BSP”). The Plaintiff vide PKFZ had leased out a measly 3.2 % of the subject land (lots 141, 142, and 143 of Precinct 1) (“leased land”) to BSP. BSP had put assets into the leased land. Undeniably BSP (now under receivership) had defaulted lease rentals due and owing to the Plaintiff. Following the defaults the Plaintiff had terminated the lease with BSP. 4    [5] In the midst of receivership, BSP purportedly entered into an Asset Sale Agreement (“ASA”) whereby the Defendant agreed to purchase BSP’s assets inclusive of BSP’s assets situated on the leased land. However, it must be noted that firstly, the ASA had never included BSP’s lease over the leased land and secondly, that the same ASA had already been cancelled and terminated owing to the Defendant’s own breach against the ASA. The leased land was never BSP’s asset to be transferred over to the BSP, and the ASA only revolves around the sale and purchase of the BSP’s assets which does not include the leased land. [6] The Defendant had proposed to the PKFZ that the Defendant intends to be the subsequent lessee of the leased land after BSP (“proposition”). However, this proposition was never agreed to by the Plaintiff. This is the same proposition in which the Defendant incredulously contends as an agreement between the Defendant and the Plaintiff. [7] Therein, the failed and repudiated ASA forms the basis of the Defendant’s act of lodging the caveat upon the ENTIRETY of the subject land and not only the leased land with BSP. The 5    proposition with the Plaintiff was never mentioned in the Defendant’s Form 19B in lodging the caveat upon the entire subject land. Thus, the proposition should not and in fact, could not be the basis of the Defendant’s act of ‘protecting’ its interest on the entire subject land. This Court must stress that the Defendant had absurdly lodged a caveat not only onto the BSP leased land, but the entirety of the subject land, in which 96.8% of the subject land belonging to the Plaintiff absolutely has no relevance to the Defendant. [8] These ill-conceived supposed caveatable interests (in the failed ASA and the proposition) as well as the absurd lodgement of caveat against the entire subject land form the Plaintiff’s present Originating Summons. B. THERE IS NO CAVEATABLE INTEREST IN THE FAILED ASA BETWEEN THE DEFENDANT AND BSP [9] This Court hesitates nothing to find that there is simply no caveatable interest in the failed ASA on two grounds: 6    a. Firstly, all too conveniently (for the Defendant) and maliciously, the Defendant has omitted to disclose in Form 19B as well as to this Court that the ASA has already failed and lapsed owing to the Defendant’s own failure to pay the balance purchase price of BSP’s assets situated in the leased land. It is verily preposterous that the Defendant would have the audacity to contend on a supposed caveatable interest vide a failed contract. b. Secondly, even if the ASA was still valid (which in the present case it is far from any validity) the ASA was not enforceable against the Plaintiff (as the registered owner of the entirety of the subject land inclusive of the leased land) as the Plaintiff is not even privy to the ASA. The ASA does not include any agreement on the Plaintiff’s part to grant any subsequent leases to the Defendant. The ASA only revolves around the sale and purchase of BSP’s assets to the Defendant which ultimately does NOT include the leased land as the leased land was never BSP’s assets. The ASA would have been impossible to be performed even if the ASA was valid. If the ASA was valid the only interest that the Defendant would have is the interest over BSP’s assets 7    which does NOT include any interest or lease of the leased land, what more the entirety of the subject land. Thus, it is impossible and in fact, inappropriate for this Court to draw a caveatable interest (under Section 323(1)(a) of the National Land Code) out of the ASA when the ASA does not at all attach any form of interest which can be held against the Plaintiff (which ultimately was never a part of the ASA). BSP has no rights at all to represent and/or deal with the leased land, and thus, any agreement with BSP regarding the leased land (more so in this case, the subject land) should have no effect at all against the Plaintiff’s registered ownership of the leased land. [10] Now, in determining an application to remove a caveat under Section 327 of the the National Land Code, the Court must determine whether or not the grounds of the lodgement of Form 19B is valid and sustainable in law. The Plaintiff had rightfully referred to the case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng [1995] 1 MLJ 719 in which the Court had applied a three-stage test in determining the validity and sustainability of a caveat. 8    [11] The first stage requires the Court to ascertain from the contents Form 19B, if the Defendant has a caveatable interest on the leased land (and infinitely more preposterous, on the entirety of the subject land). Now, the grounds in which the Defendant lodged the caveat stipulated in Form 19B is just the ASA and nothing else. There were no stipulations of any agreement with PKFZ or the Plaintiff. There was only the ASA which does not and should not bind PKFZ or the Plaintiff. It has already been found earlier that the ASA, even if it was a valid contract does not stand to prove any caveatable interest that can be held against the Plaintiff as the registered owner of the land. It is preposterous that the Defendant would contend that it would have caveatable interest against the land when the Defendant had not struck any agreement with the registered owner of the leased land as well as the entirety of the subject land. It is also similarly preposterous when the ASA does not even include any mention of the lease over the land. [12] And this Court does not hesitate to state here that whatever action the Defendant has against BSP over the said ASA is verily irrelevant to this Court’s consideration in the present Originating Summons. Even if the other Court were to hold that there should be a Specific Performance of the ASA, that judgment as well as 9    the ASA does not bind the Plaintiff as repreatedly found in this judgment. It is not incumbent for the Plaintiff to grant lease to the Defendant under the ASA even if the ASA is valid and enforceable. And since the Plaintiff owes not duty to grant the same lease to the Defendant under the ASA, clearly the ASA cannot and should not derive any caveatable interest to the Defendant’s benefit. It is incredulous and impossible as well as inappropriate for this Court to find that the ASA (which is totally foreign to the Plaintiff) can be held against the Plaintiff who is not at all a party to the ASA. Thus, the Defendant had already failed the first test in proving a caveatable interest. [13] The second and third tests require the Court to examine the Affidavit and evidences to ascertain whether or not there are any support to the Defendant’s caveatable interest as stated in Form 19B and if the Defendant is entitled to maintain the caveat on the balance of convenience. It naturally entails that since the Defendant had already failed to fulfil the first test, that the Defendant’s would fail the second and third subsequent tests. There simply would not be any evidence to support a caveatable interest when there is no caveatable interest to begin with. 10    C. THERE IS NO AGREEMENT BETWEEN THE DEFENDANT AND THE PLAINTIFF UNDER THE PROPOSITION TO PROVE DEFENDANT’S CAVEATABLE INTEREST The Defendant cannot justify retention of caveat based on the undisclosed proposition [14] Entirely foreign to the grounds stated in the Defendant’s Form 19B, the Defendant now takes a different tangent in contending that the Plaintiff, very erroneously had agreed to grant a lease to the Defendant in another separate agreement, which never came into writing or even existence. In fact, it is very telling from the evidence tendered into Court that the agreement was never entered or agreed upon by the Plaintiff. [15] For convenience, the relevant portion of the Defendant’s Form 19B is reproduced here, to clearly highlight the omission of any mention of any agreement with the Defendant under the proposition. The only representations mentioned in the Form 19B were representations with regard to the ASA and not at all with the proposition: 11    (c) …Suatu perjanjian jual beli bertulis bertarikh 18.6.2015 antara BSP dan kami (“Perjanjian Jual Beli tersebut”)(in the present Originating Summons, the ASA) telah dilaksanakan di mana kami bersetuju untuk membeli loji tersebut pada harga RM9,000,000.00 sahaja daripada BSP. [16] The above portion of the Form 19B is the only mentioning of a contract and the only contract ever mentioned was the ASA between BSP and the Defendant. And the only mentioning of the Plaintiff’s or PKFZ’s representation was in reference to the ASA and not any other separate contract between the Plaintiff and the Defendant under the proposition. The proposition was never mentioned in the Form 19B: (d) … Tindakan PKFZ dalam mendapat Writ Milikan tersebut adalah suatu kemungkiran kepada representasi yang diberi oleh PKA dan PKFZ semasa rundingan-rundingan serta kemungkiran asasi kepada terma-terma Perjanjian Jual Beli Tersebut. 12    [17] If indeed the Defendant is verily sure and confident that there is indeed a separate contract with the Plaintiff under the proposition then it goes against all common sensibilities, logic, and reason that the Defendant would knowingly omit the mention of the contract under the proposition and would only mention the alleged breaches to the ASA. It is infinitely more probable than not that the Defendant itself knows that there was never any contract with between the Plaintiff/PKFZ and the Defendant which explains the Defendant’s outright omission of any mention of the proposition in Form 19B. [18] And it is made infinitely clearer when the Defendant had expressly stated that it has lodged the caveat in protecting its interest as the purchaser of BSP’s assets under the ASA, and not any other interest arising from any other contracts: (f) Kaveat ini difailkan untuk melindungi kepentingan kami sebagai pembeli Loji tersebut menurut Perjanjian Jual Beli tersebut sebelum guaman sivil ini selesai. [19] In fact, in essence this Court should not concern itself on this contention which was omitted by the Defendant itself in Form 19B. 13    It is already trite in our local jurisdiction that a caveator should not be given leeway to justify a caveat on a different ground than what was set out in Form 19B. And this Court indeed agrees to this rule as allowing a caveator to do as such would indicate that the Court condones frivolous lodgement of caveats or lodgement of encompassing blanket caveats in which a caveator is free to refer to any interest although such interest was never mentioned in Form 19B. This proposition defeats the entire spirit of the provision in that a caveator must give a precise description of the interest or rights the caveator is protecting. This Court finds valuable guidance in Kamalanathan Ratnam J’s decision in the case of Soon Seng Co Sdn Bhd v Toko Palayakat Jamal (M) Sdn Bhd (formerly known as Abdul Jamal Trading Sdn Bhd) [1999] 5 MLJ 75 in which the Court had held: “It must be noted that at the second stage the caveator is not allowed to justify the retention of the caveat on a ground different from that set out in his Form 19B, and the Court is required to subject the caveator’s affidavit evidence in support of the caveatable interest to ‘meticulous scrutiny’.” 14    See also Mok Yong Kong & Anor v Mok Yong Chuan [2002] 2MLJ 718 [20] Thus, the purported proposition is verily irrelevant to the present Originating Summons to remove the Defendant’s caveat which was which was lodged on the sole basis of protecting the Defendant’s alleged interests under the ASA and not any other contracts. [21] It naturally entails that whatever separate action the Defendant currently has against the Plaintiff (on the proposition) besides the present case, should not be of any concern to this Court in determining the present Originating Summons. The present Originating Summons was filed to remove a caveat in which was lodged on the sole basis of protecting the Defendant’s alleged interests under the ASA. There is no reason whatsoever for this Court to concern itself on a purported proposition which is altogether alien and foreign to the caveat lodged onto the subject land. [22] Nonetheless, only for the sake of convenience and completion, this Court shall still address this erroneous contention on the 15    proposition contended by the Defendant. It is well within this Court’s jurisdiction to address the existence or non-existence of the contract although the same issue is being heard in another Court as it is this Court’s duty to determine whether or not the Defendant has a caveatable interest, and the contention on the proposition is the final nail to the coffin to put the Defendant’s case (in retaining the caveat) to its inevitable demise. [23] This erroneous contention on the supposed proposition was based on two letters issued by PKFZ to the Defendant both dated 15.05.2015. The 1st letter of the same date was a reply to the Defendant’s earlier proposition to be the next lessee in line after BSP (“1st Letter”). The 2nd letter of the same date was a reply to the Defendant’s request for support in its bid under the ASA. (“2nd Letter”). It must be clearly minded from this early juncture that the two letters were referring to two altogether separate matters. The 1st Letter referring to the proposition, while the 2nd Letter referring to the ASA. [24] In the 1st Letter, PKFZ (replying to the Defendant’s proposition) had merely and only agreed to CONSIDER the proposition of the Defendant to be the next lessee after BSP. And this consideration 16    to agree was pre-conditioned with numerous considerations inclusive of the vacant possession of the leased land, which never at all material times materialised or returned to the Plaintiff. Thereto, the 1st Letter was never a representation of the Plaintiff’s agreement to the proposition in any shape or form. [25] In the 2nd Letter, PKFZ (replying to the Defendant’s request for support in its ASA bid) had merely furnished support to the ASA which does not concern the granting of any lease over the leased land at all. The ASA only concerns the assets of BSP and any support however strong or fervent by the Plaintiff, is not at all any indication of the Plaintiff’s agreement to grant lease under the proposition. [26] Clearly, the nexus and inference drawn by the Defendant regarding these two letters is infinitely ill-conceived, erroneous, and to an extent misleading. [27] The 2nd Letter does not supersede the 1st Letter. Even the Defendant treats the ASA and the proposition as two different contracts. Similarly, the two letters refer to different contracts. The 1st Letter indicates that the plaintiff only agreed to consider the 17    proposition. The 2nd Letter in the meantime only concerns the ASA which should not concern the Plaintiff at all as the Leased Land was never BSP’s asset to begin with. Thus, whatever representation in the 2nd Letter clearly does not supersede the 1st Letter. [28] Therefore, it is this Court’s finding that there is NO contract between the Plaintiff and the Defendant under the proposition that would compel the Plaintiff to grant lease to the Defendant. [29] Thus, it naturally entails that the contention on the proposition would ultimately fail the test Luggage Distributors for a total absence of a caveatable interest. D. THE CAVEAT WAS GRAVELY DEFECTIVE AND OUGHT TO BE REMOVED [30] As highlighted above, the Defendant had absurdly caveated the entirety of the subject land rather than the infinitely smaller leased land which was relevant to the Defendant’s alleged interest. The ultimate effect of the Defendant’s error and mishap is that the Defendant had effectively hindered the rights and interests of all 18    other 96.8% of other plots of the subject land which has nothing to do with the Defendant. It was never right, and utterly wrong for the Defendant to unlawfully and unduly encroach on other people’s rights in the Defendant’s overzealous bid to protect its own alleged interest. A simple reading of the Defendant’s Form 19B would reveal this grave defect: a. Firstly, instead of using the word “kepentingan” (interest) the Defendant had expressly opted to bind the caveat to the entirety of the “tanah” (land): “Kami Artistic Biofuels Sdn Bhd… memohon supaya dimasukkan suatu kaveat ke dalam hakmilik tanah yang tersebut dalam jadual bawah ini, supaya menyatakan sebagai mengikat – *tanah itu sendiri/kepentingan yang tersebut dalam jadual itu. b. Secondly, in the schedule to Form 19B, the Defendant had stated that the “Bahagian Tanah” it intends to bind to be as “Semua” or “entirety”. 19    [31] It was repeated many times in the Code (either in the sections and/or the Forms) that there is an important distinction between lodging a caveat for a specific interest and lodging a caveat against the whole land. It is the spirit of the Code that caveators must be specific, accurate, and precise in its lodgement whether it intends to bind the whole land or a specific interest on the land. And this is the exact spirit that the Defendant has defiled. [32] This grave defect had even been admitted by the Defendant in its own Submissions. It was admitted by the Defendant that: “…we (the Defendant) accept that the failure of the Form 19B to expressly limit the effect of the Caveat to protect Artistic’s interest in only the BSP Land may have resulted in the Caveat preventing PKA from dealing with the rest of the Port Klang Free Zone” [33] The Defendant admits this failure. Not even any plans were attached to the Form 19B to clearly and precisely demarcate the Defendant’s alleged interest from the rest of the subject land. And the Court’s sentiment against this grave non-compliance is time- 20    celebrated and trite. The Supreme Court in the case of Tan Heng Poh v Tan Boon Thong & Ors [1992] 2 MLJ 1 has clearly expressed the gravity and unsustainability of a defective caveat which does not make the precise demarcation between the land and the purported interest of the caveator: “The appellant’s caveat contained a serious defect in failing to comply with the requirement of Section 323(2) of the Code, as it was not expressly specified that the caveat was intended to bind only his limited interest in the eight parcels of land and not the whole land. Once the caveat was found to be legally unsustainable, the caveatee was entitled to have the caveat removed” “The main ratio of the judgment of this court in Mosbert Bhd (in Liquidation) v Stella D’Cruz is to the effect that once a caveat is shown to be defective, it is no duty of the court to save it by amendment” [34] The Supreme Court also held that: 21    “Section 323(2) expressly requires, firstly, that Form 19B should be used, and secondly, that the caveator must specify therein not only the nature of the claim on which his application is based but also to state expressly whether the caveat is to bind the land or a particular interest only. In our view, non-compliance with these requirements may be fatal and may be a valid ground for removing caveat at the instance of the appellant.” [35] Thus, on the same note, this Court also finds that the non- compliance is grave as well as serious and the caveat is ultimately defective and ought to be removed. The extent of the error was absurdly grave in that it affected a total of 96.2% of the subject land which has no relevance at all to the Defendant. [36] The Defendant in a desperate bid to salvage the gravely defective caveat had referred to the case of Upmarket Development Sdn Bhd v Sriera Development Sdn Bhd [2011] 4 MLJ in contending that the Court ought not to remove the caveat as the Defendant had substantially complied with the provision albeit not in full- compliance. However, this Court simply distinguishes the case of Upmarket Development on the simple ground that the facts of 22    Upmarket Development are massively different from the present case. The caveator in Upmarket Development had at the very least appended a plan with the caveat application which clearly demarcates the part of the land which is of the caveator’s interest. The Defendant in the present case however, did no such thing. In fact, it is more probable than not that the substantial effect of the Defendant’s grave error is that it would mislead a reasonable person to believe that the Defendant has a caveatable interest over the entirety of the subject land, which is devoid of any truth. [37] Thus, considering the grave defect and the grave effect of the caveat to the entirety of the subject land, this Court finds that the caveat is immensely defective and ought to be removed by this Court. There are also no reasons at all for this Court to exercise its discretion to amend the caveat considering the massive extent of the defect as well as the total absence of caveatable interest to the benefit of the Defendant. E. COURT’S DECISION [38] In view of all of the findings and deliberations above, it is this Court’s decision that the Plaintiff has successfully proven its case. 23    [39] It is also this Court’s decision that the Defendant has utterly failed to prove any defence to challenge the Plaintiff’s present Originating Summons. This Court hereby dismisses the Defendant’s defence. [40] Thus, this Court grants order-in-terms to the Plaintiff’s present Originating Summons under Section 327 of the National Land Code to have the caveat under Perserahan No. 14734/2016 at the Klang Land Office be removed and also grants order-in-terms to prayer (c) in Enclosure 1. [41] This Court also orders the Klang Land Office to remove the caveat under Perserahan No. 14734/2016 from the register of the subject land held under Pajakan Negeri 7324, lot 67894, Daerah dan Mukim Klang, Negeri Selangor Darul Ehsan. On the issue of costs [42] Having heard brief submissions from the learned counsels for the Plaintiff and the Defendant, this Court hereby orders the Defendant to pay the Plaintiff RM10,000.00 in costs. 24    ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 29th July of 2016 For the Plaintiff - Messrs S Murthi & Associates Mr. S Murthi Mr. A Hanafi For the Defendant - Messrs Tommy Thomas Mr Alan Adrian Gomez Ms Michelle Sunita Kummar

Tika 2.6.0

24-1337-11/2015

PLAINTIF DR. NIK ZAMRI BIN ABDUL MAJID DEFENDAN

27/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c946f504-76f8-41b3-873e-80ce93bd97d3&Inline=true

Microsoft Word - 24-1337-11-2015 Dr Nik Zamri bin Abdul Majid v Josu Development Sdn Bhd 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. 24-1337-11/2015 Dalam Perkara berkenaan tanah yang dipegang di bawah Suratan Hakmilik No. H.S. (D) 142205 PT 50607, Mukim dan Daerah Petaling, Negeri Selangor; Dan Dalam Perkara Perjanjian Usahasama bertarikh 24.06.2010 Dan Dalam Perkara Surat bertarikh 16.10.2014 Dan Dalam Perkara Kaedah-Kaedah Mahkamah 2012 ANTARA DR. NIK ZAMRI BIN ABDUL MAJID ....PLAINTIF DAN 2    JOSU DEVELOPMENT SDN BHD ….DEFENDAN ALASAN PENGHAKIMAN [1] Plaintif di dalam kes ini adalah seorang individu bernama Dr. Nik Zamri bin Abdul Majid telah memfailkan Notis Rayuannya pada 25.8.2016 kerana tidak berpuas hati atas perintah Mahkamah ini yang telah membatalkan dua permohonannya dengan kebebasan untuk memfailkan semula walaupun perintah-perintah ini telah diberikan setelah Plaintif sendiri telah memohon untuk menarikbalik kedua-dua permohonannya. [2] Bagi mendapatkan gambaran jelas kenapa Mahkamah memberikan perintah-perintah sedemikian, molek kiranya latarbelakang permohonan-permohonan dinyatakan di bawah ini. 2.1 Pada 11.11.2015, Plaintif telah memfailkan Saman Pemulanya di dalam Kandungan 1 terhadap Defendan (Josu Development Sdn Bhd) bagi mendapatkan perintah-perintah seperti berikut: 3    i. Sama ada status-quo Plaintif masih berkuatkuasa dan harus dikekalkan menurut Recital 9 Perjanjian Usahasama bertarikh 24.06.2010 (JVA), ia telah diperuntukkan bahawa Lestari Puchong Sdn Bhd (LPSB) dan Josu Development Sdn Bhd (JDSB) bersetuju bahawa Plaintif mempunyai kuasa penuh kawalan, operasi dan pengurusan Projek dan akan melaksanakan dan menyiapkan setiap fasa Projek tertakluk kepada terma dan syarat yang terkandung dalam JVAnya. (effect). ii. Sama ada Plaintif pada masa material mempunyai kapasiti untuk memasuki kontrak-kontrak seperti JVA, dan Perjanjian Perkhidmatan Profesional sebagai seorang perunding bebas dan untuk menjalankan peranan dan fungsi yang terkandung di dalamnya walaupun beliau telah diisytiharkan muflis. 2.2 Adalah tidak dipertikaikan bahawa Plaintif adalah seorang bankrap yang belum dilepaskan (undischarged bankrupt). Plaintif telah dijadikan seorang bankrap melalui beberapa Perintah Penerimaan dan Perintah Penghakiman sejak dari tahun 1982. Perintah Penerimaan dan Perintah Penghakiman 4    yang telah dikeluarkan terhadap Plaintif adalah menerusi prosiding-prosiding kebankrapan berikut: i. 29-3228-2005 (Perintah Penerimaan dan Perintah Penghukuman bertarikh 23/08/2006) ii. 29-2261-2005 (Perintah Penerimaan dan Perintah Penghukuman bertarikh 07/12/2006) iii. 29-4462-2005 (Perintah Penerimaan dan Perintah Penghukuman bertarikh 21/03/2007) iv. 29-2485-2006 (Perintah Penerimaan dan Perintah Penghukuman bertarikh 21/08/2007) 2.3 Sehingga kini Plaintif masih lagi adalah seorang bankrap yang belum dilepaskan. 2.4 Pada 20.1.2016 pula, Plaintif telah memfailkan Kandungan 5 untuk meminda Kandungan 1nya bagi memasukkan peruntukan undang-undang yang beliau bergantung untuk mendapatkan relif-relif yang dipohon di samping juga meminda 5    relif-relif yang terkandung di dalam Kandungan 1 seperti berikut: Dalam Perkara berkenaan tanah yang dipegang di bawah Suratan Hakmilik No. H.S. (D) 142205 PT 50607, Mukim dan Daerah Petaling, Negeri Selangor; Dan Dalam Perkara Perjanjian Usahasama bertarikh 24.06.2010 Dan Dalam Perkara Surat bertarikh 16.10.2014 Dan Dalam Perkara 92 Kaedah-Kaedah Mahkamah 2012 Dan Dalam Perkara 36, 37 dan 38 Akta Kebrankrapan 1967 Dan Dalam Perkara Seksyen 11, 71 Akta Kontrak 1950 Dan 6    Dalam Perkara Seksyen 41 Akta Relif Spesifik 1950 1. Sama ada bahawa status-quo Plaintif masih berkuatkuasa dan harus dikekalkan menurut Recital 9 Perjanjian Usahasama bertarikh 24.06.2010 (JVA), ia telah diperuntukan bahawa Lestari Puchong Sdn Bhd (LPSB) dan Josu Development Sdn Bhd (JDSB) bersetuju bahawa Plaintif mempunyai kuasa penuh kawalan, operasi dan pengurusan Projek dan akan melaksanakan dan menyiapkan setiap fasa Projek tertakluk kepada terma dan syarat yang terkandung dalam JVAnya. (effect). 2. Sama ada bahawa Plaintif pada masa material mempunyai kapasiti untuk memasuki kontrak-kontrak seperti JVA, dan Perjanjian Perkhidmatan Profesional sebagai seorang perunding bebas dan untuk menjalankan peranan dan fungsi yang terkandung di dalamnya walaupun beliau telah diisytiharkan muflis. 3. Bahawa kos-kos untuk dan yang bersampingan dengan tindakan ini termasuk kos-kos permohonan ini ditetapkan dan dibayar oleh Defendan kepada Plaintif atas dasar indemniti. 7    2.5 Defendan pula kemudiannya pada 23.3.2016 telah memfailkan satu permohonan (Kandungan 9) memohon supaya Kandungan 1 Plaintif dibatalkan menurut Aturan 18 Kaedah 19(1)(a) dan/atau (b) dan/atau (b) dan/atau (c) dan/atau (d) Kaedah-Kaedah Mahkamah 2012 (KKM 2012). Salah satu alasan yang ditimbulkan oleh Defendan bagi membatalkan Saman Pemula adalah bahawa memandangkan Plaintif adalah seorang bankrap yang belum dilepaskan, maka sebelum Plaintif memulakan tindakan terhadap Defendan, Plaintif hendaklah memperolehi sanksi daripada Ketua Pengarah Jabatan Insolvensi Malaysia (JIM) menurut seksyen 38 (1) (a) Akta Kebankrapan 1967. Di dalam kes ini, tiada sanksi yang telah dikeluarkan oleh JIM kepada Plaintif bagi memulakan tindakan ini terhadap Defendan, maka Plaintif tidak mempunyai locus standi atau keupayaan/kapasiti undang-undang untuk memulakan tindakannya terhadap Defendan. [3] Kandungan 1, Kandungan 5 dan Kandungan 9 ditetapkan untuk perbicaraan di hadapan Mahkamah ini pada 27.7.2016. Pada tarikh perbicaraan ketiga-tiga permohonan ini, isu locus standi Plaintif telah 8    dibangkitkan oleh peguam Defendan yang menurut peguam Defendan bahawa sehingga tarikh hari perbicaraan Plaintif masih gagal mengemukakan kepada Mahkamah apa-apa sanksi yang telah diperolehinya dari JIM bagi memulakan tindakan terhadap Defendan. [4] Plaintif kemudiannya telah mengemukakan kepada Mahkamah satu surat daripada Ketua Pengarah JIM bertarikh 26.7.2016 yang menurut beliau Ketua Pengarah JIM telahpun memberikan sanksi kepada beliau untuk memfailkan tindakan ini. [5] Penelitian rapi telah dibuat oleh Mahkamah ini ke atas surat Ketua Pengarah JIM bertarikh 26.7.2016 dan di mana perenggan 2 surat tersebut berbunyi berikut: 2. Sukacita dimaklumkan bahawa Ketua Pengarah Insolvensi Malaysia meluluskan sanksi untuk tuan memulakan tindakan di Mahkamah Tinggi Shah Alam bagi No guaman.: 24-1337-11/2015. [6] Mahkamah ini telah memaklumkan kepada Plaintif bahawa sanksi yang diperolehi oleh Plaintif bertarikh 26.7.2016 tidak boleh berkesan kebelakang (restropective). Sanksi yang baru diperolehi Plaintif 9    daripada Jabatan Insolvensi adalah bertarikh 26.7.2016 sedangkan tindakan Saman Pemula ini telahpun dimulakan terlebih dahulu oleh Plaintif lapan (8) bulan sebelum sanksi diperolehi. [7] Seterusnya Mahkamah telah memaklumkan kepada Plaintif juga bahawa sanksi bertarikh 26.7.2016 tersebut telah tidak menyatakan secara spesifik menyatakan bahawa ianya telah dikeluarkan dengan mempunyai kesan kebelakangan yakni dari tarikh guaman Plaintif difailkan. Maka, Mahkamah ini telah memaklumkan kepada Plaintif bahawa sanksi yang beliau perolehi daripada JIM tidak menyatakan dengan jelas dan spesifik samada sanksi itu terdapat kesan kebelakangannya dan telah mengesahkan “validate” guaman yang difailkan oleh Plaintif terlebih dahulu sebelum sanksi diperolehi. [8] Mahkamah ini telah membawa perhatian Plaintif kepada keputusan yang telah diputuskan oleh Mahkamah Persekutuan di dalam kes Winstech Engineering Sdn Bhd v Espl (M) Sdn Bhd [2014] 3 MLJ 1. Di dalam kes Winstech Engineering ini telah diputuskan oleh Mahkamah Persekutuan seperti berikut: 10    (1) The sanction given in the Director-General of Insolvency’s letter dated 19 August 2013 did not specify that it was to be retrospective. For the doctrine of ratification to apply, the ratification must be clear (see para 20) (2) There was no application for the official receiver’s sanction to be made retrospective. In short, there was no nunc pro tunc leave application. There was, therefore, no material before the court to consider and to justify the grant of nunc pro tunc leave (see para 23). (3) The argument that the respondent had not been prejudiced and that no miscarriage of justice had been caused did not arise as the applicant, on its own accord, failed to utilise the enabling provisions of the law to commence the legal proceedings. The court, in law, was not in a position to render assistance to such a litigant (see para 15 & 21). [9] Mahkamah telah menerangkan kepada Plaintif bahawa di dalam kes Winstech ini, sebelum Mahkamah Persekutuan mendengar permohonan kebenaran merayu yang difailkan pemohon, peguam responden telah memohon Mahkamah Persekutuan melalui Lampiran 8 untuk membatalkan permohonan pemohon atas alasan bahawa pemohon tidak mempunyai kapasiti undang-undang atau 11    locus standi. Menurut peguam responden, pemohon yang telah digulungkan telah memfailkan permohonan kebenaran tersebut tanpa sanksi Pegawai Penerima. Pegawai Penerima di dalam kes ini hanya telah mengeluarkan sanksi mereka lebih kurang tiga (3) bulan selepas permohonan kebenaran merayu difailkan oleh pemohon di Mahkamah Persekutuan. [10] Di dalam perkara pengeluaran dan kesan kebelakang sanksi Pegawai Penerima selepas 3 bulan daripada tarikh pemfailan permohonan untuk kebenaran merayu, Mahkamah Persekutuan di mukasurat 8 perenggan 20 alasan penghakimannya menyatakan berikut : “ The sanction as per the Director General of Insolvency’s letter dated 19 August 2013, did not specify that it is to be retrospective. For the doctrine of ratification to be applicable, the ratification must be clear. Furthermore, in the present case, there is no evidence to show that there is ever any application for the sanction to be retrospective”. [11] Berbalik pula kepada kes di hadapan mahkamah ini, sanksi yang dikeluarkan oleh Jabatan Insolvensi bertarikh 26.7.2016. Di dalam sanksi sememangnya nombor kes bagi guaman telah dinyatakan 12    tetapi telah tidak terdapat apa-apa penyataan yang jelas dan spesifik bahawa sanksi mempunyai kesan kebelakang “retrospective”. Oleh yang demikian, mahkamah berpandangan bahawa keputusan Mahkamah Persekutuan di dalam Winstech adalah mengikat kes ini, walaupun di dalam kes Winstech, isunya adalah sanksi Pegawai Penerima dan di hadapan mahkamah ini sanksi yang diperlukan oleh sibankrap adalah sanksi Jabatan Insolvensi bagi membolehkan Plaintif memulai satu tindakan undang-undang. Pada asasnya prinsip yang terpakai adalah, bagi sanksi yang dikeluarkan di dalam keadaan kes-kes sebegini untuk mempunyai kesan kebelakang ia hendaklah jelas dan spesifik menyatakan sedemikian. [12] Perlu dinyatakan di dalam kes ini juga, sanksi yang dikeluarkan oleh Jabatan Insolvensi Malaysia (JIM) bukan sahaja telah hanya diperolehi setelah lapan (8) bulan dari tarikh pemfailan tindakan oleh Plaintif dan ianya juga tidak spesifik atau jelas untuk mewujudkan kesan kebelakangan. Apa yang dinyatakan oleh Jabatan Insolvensi di dalam sanksi tersebut adalah Ketua Pengarah Insolvensi telah meluluskan Plaintif memulakan tindakan, walhal tindakan telahpun dimulakan oleh Plaintif lapan bulan terlebih dahulu tanpa sanksi. 13    [13] Untuk lebih jelas, ayat-ayat yang digunakan di dalam surat JIM tersebut diperturunkan sekali lagi seperti berikut: 2. Sukacita dimaklumkan bahawa Ketua Pengarah Insolvensi Malaysia meluluskan sanksi untuk tuan memulakan tindakan di Mahkamah Tinggi Shah Alam bagi No guaman.: 24-1337-11/2015. (Penekanan oleh Mahkamah ini) [14] Mahkamah ini telah berpandangan bahawa perkataan yang digunakan oleh Jabatan Insolvensi adalah memberi kebenaran kepada pihak sibankrap untuk memulakan tindakan 24-1337- 11/2016, walhal tindakan telahpun dimulakan oleh Plaintif sebelum pemerolehan sanksi lagi. Sekiranya sanksi yang dikeluarkan oleh JIM memberi kesan kebelakangan maka penyataan JIM hendaklah secara spesifik dan jelas bahawa sanksi ini berkuatkuasa dari tarikh pemfailan tindakan yakni pada 11.11.2015. Ini tidak diyatakan oleh JIM di dalam sanksinya. [15] Bagi kes Plaintif di hadapan Mahkamah ini, adalah tidak dinafikan bahawa daripada awalnya lagi Plaintif sememangnya tidak 14    memperolehi sanksi Jabatan Insolvensi bagi membolehkan Plaintif pertama memulakan tindakan terhadap Defendan. Bersandarkan kes Winstech Engineering, pada pandangan Mahkamah ini bahawa sanksi yang dikeluarkan oleh JIM perkataan memulakan tidak menepati peruntukan seksyen 38(1) (a) Akta Kebankrapan yang memperuntukkan seperti berikut: (1) Where a bankrupt has not obtained his discharge – (a) the bankrupt shall be incompetent to maintain any action (other than an action for damages in respect of an injury to this person) without the previous sanction of the Director General of Insolvency. (Penekanan oleh Mahkamah ini) [16] Dengan pandangan yang sedemikian, Mahkamah ini telah mencadangkan kepada Plaintif agar beliau menarikbalik permohonan-permohonan beliau sebagaimana di Kandungan 1 dan Kandungan 5 bagi membolehkan beliau membetulkan kertas kausa sebelum memfailkan tindakan beliau terhadap Defendan. [17] Plaintif kemudiannya telah menarikbalik permohonan- permohanannya dan seterusnya Mahkamah ini telah membatalkan 15    Kandungan 1 dan Kandungan 5 dengan kebebasan memfailkan semula. Mahkamah juga telah memerintahkan Plaintif membayar kos sebanyak RM500.00 kepada Defendan. Memandangkan Plaintif telah menarikbalik Kandungan 1nya, Defendan juga telah menarikbalik Kandungan 9. Mahkamah seterus telah membatalkan Kandungan 9 dan memerintahkan Plaintif membayar kos RM500.00 kepada Defendan. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (Saman Pemula) Selangor Darul Ehsan Bertarikh 27 haribulan Julai 2016 Plaintif mewakili diri sendiri - Dr. Nik Zamri bin Abdul Majid Peguam Defendan - Tetuan William Leong & Co Encik Abdul Halim bin Abdul Karim

Tika 2.6.0

BA-24-14-01/2016

PLAINTIF Dato' Yasmeen binti Muhamad Shariff DEFENDAN Pentadbir Tanah Daerah Hulu Langat

20/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=af7a9cfc-ceaf-44b9-99eb-7ecfa8e240ab&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO: BA-24-14-01/2016 Dalam Perkara Seksyen 38(4) Akta Pengambilan Tanah 1960; Dan Dalam Pengambilan Tanah yang dikenali sebagai Lot 1068, No. GM 7295, Lot 1069, GM 871, Mukim Cheras, Daerah Hulu Langat, Selangor; Dan Dalam Perkara Aturan 7 Kaedah 2 Kaedah-Kaedah Mahkamah 2012; ANTARA DATO' YASMEEN BINTI MUHAMAD SHARIFF (NO. KP: 570813-10-5884) ...PLAINTIF DAN 2 PENTADBIR TANAH DAERAH HULU LANGAT ...DEFENDAN ALASAN PENGHAKIMAN (Kandungan 1) A. PENGENALAN [1] Di dalam kes ini, Plaintif adalah seorang individu bernama Dato’ Yasmeen binti Muhamad Shariff yang juga merupakan seorang pengamal undang-undang yang beramal di Tetuan Yasmeen Hajar dan Hairudin. [2] Plaintif telah memfailkan Saman Pemula di Kandungan 1 terhadap Pentadbir Tanah Daerah Hulu Langat (Defendan) bagi mendapatkan antara-lain perintah-perintah berikut: (a) Pelanjutan tempoh untuk membenarkan Plaintif membuat bantahan ke atas pengambilan tanah sebagai Lot 1068, Hakmilik No. GM 7295 dan Lot 1069, Hakmilik No. GM 871 Mukim Cheras, Daerah Hulu Langat, Selangor (hartanah-hartanah tersebut) oleh Defendan menurut Seksyen 38(4) Akta Pengambilan Tanah 1960; 3 (b) Sekiranya dibenarkan, Plaintif memfailkan bantahan dalam masa 6 minggu dari tarikh perintah; [3] Bagi kefahaman jelas mengenai permohonan Plaintif , molek sekiranya Mahkamah ini menyatakan latar belakang ringkas kes yang membawa kepada pemfailan Kandungan 1 oleh Plaintif. Ianya adalah seperti berikut: i. Tuanpunya asal hartanah-hartanah tersebut adalah Haji Mohd Shariff @ Jan Mohamed bin Haji Ghulam (Haji Mohd Shariff) yang telah meninggal dunia dunia pada 27hb Februari 1975. Suratkuasa mentadbir bagi harta pusaka peninggalan Haji Mohd Shariff telah dikeluarkan pada 28hb Jun 1976 kepada Hajjah Amina Bt Ama Din (isteri Haji Mohd Shariff) dan Mohd Akbal Bin Haji Mohd Shariff (Mohd Akbal - anak lelaki Mohd Shariff). Hajjah Amina Bt Ama Din (Hajjah Amina) telah meninggal dunia pada 23hb Jun 2006. Setelah kematian Hajjah Amina, Mohd Akbal kemudiannya telah dilantik sebagai Pentadbir tunggal bagi harta pusaka peninggalan Haji Mohd Shariff. 4 ii. Pada 31.1.2013 baki hartanah-hartanah tersebut telah terlibat di dalam pengambilan tanah bagi maksud pembinaan Lebuh Raya Cheras-Kajang. Perisytiharan pengambilannya telah dibuat menurut Seksyen 8 Akta Pengambilan Tanah 1960 (Akta) melalui Warta Pengambilan No. 636 bertarikh 31.1.2013 (warta perisytiharan tersebut). Di dalam warta perisytiharan tersebut, tuanpunya berdaftar hartanah-hartanah tersebut yang terdapat di dalam rekod adalah Hajah Amina Bt Amina dan Mohd Akbal bin Mohd Sharif. iii. Bagi maksud pengambilan baki hartanah-hartanah tersebut dan penentuan award pampasan, Defendan telah membuat siasatan bagi ke atas hartanah-hartanah tersebut pada 23.7.2014. Pada tarikh siasatan dijalankan Mohd Akbal dan Plaintif telah hadir. Selain dari kehadiran Mohd Akbal dan Paintif f , siasatan tersebut telah juga dihadiri oleh Farah binti Mat Nazri, Penilai dari Jabatan Penilaian dan Pengurusan Harta Negeri Selangor (JPPH) Bdr Baru Bangi, 5 Kompleks PKNS, 43650 Bdr Baru Bangi, Abdul Hadi bin Fadzil, wakil dari Grand Saga Lebuhraya Cheras Kajang dan Raja Abd Aziz bersama Ong Kang Seap, Penilai swasta dari Chartwell I tac Int. Sdn. Bhd. iv. Di akhir siasatan pada 23.7.2014 tersebut, Defendan telahpun mengeluarkan award pampasan bagi keluasan tanah yang diambil seluas 2596 meter persegi dari Lot 1068 dan 3029 meter persegi bagi Lot 1069 kepada pemilik tanah sepertimana di dalam Borang H yang dieksibitkan di “Eksibit MHBJ-3”, Afidavit Jawapan Responden, Kandungan 3. v. Tiada Borang N yang telah difailkan oleh pemilik hartanah- hartanah tersebut bagi membantah terhadap award yang dikeluarkan oleh Defendan dalam tempoh enam minggu yang diperuntukkan di bawah Akta sehinggalah 40 hari kemudian selepas luput tempoh 6 minggu di mana Plaintif pada 13.10.2014 telah memfailkan Borang N di Pejabat Pentadbir Tanah Daerah Hulu Langat. Memandangkan Borang N Plaintif telah difailkan di luar tempoh masa 6 (kelewatan selama 40 hari), Defendan telah menolak Borang N Plaintif . Defendan juga telah memaklumkan kepada Plaintif bahawa Plaintif perlulah mendapatkan perintah mahkamah untuk perlanjutan masa untuk memasukkan Borang N tersebut. vi. Namun, Plaintif telah tidak mengambil apa-apa tindakan untuk memohon lanjutan masa sehinggalah Kandungan 1 ini difailkan pada 6.1.2016. vii. Dengan pemfailan Kandungan 1 ini pada 6.1.2016 , Plaintif telah mengambil tindakan memohon lanjutan masa selepas 1 tahun 4 bulan 44 hari dari tarikh 23.7.2014 iaitu tarikh award dan 1 tahun 2 bulan 24 hari dari tarikh 13.10.2014 iaitu tarikh Plaintif cuba memfailkan Borang N. [4] Permohonan Plaintif ini telah ditentang keras oleh Defendan atas alasan-alasan berikut: 7 (a) terdapat kelewatan melampau atau tidak munasabah di pihak Plaintif di dalam memfailkan permohonan nya. (b) atas kelewatan melampau dan tidak munasabah tidak terdapat atau wujud keadaan-keadaan khas atau istimewa bagi kelewatan tersebut bagi membolehkan satu perlanjutan masa diberikan kepada Plaintif. (c) Defendan akan diprejudiskan/diprasangkakan sekiranya perlanjutan masa diberikan kepada Plaintif atas kelewatan melampau dan tidak menasabah tersebut. [5] Bagi menimbangkan permohonan Plaintif ini, pertamanya Mahkamah ini perlu merujuk peruntukan Seksyen 38 Akta. Seksyen 38 Akta memperuntukkan berikut: Form and content of application, etc. 38. (1) Any objection made under section 37 shall be made by a written application in Form N to the Land Administrator requiring that he refer the matter to the Court for its determination, and a copy thereof shall be forwarded by the Land Administrator to the Registrar of the Court. 8 (2) Every application under subsection (1) shall state fully the grounds on which objection to the award is taken, and at any hearing in Court no other grounds shall be given in argument, without leave of the Court. (3) Every application under subsection (1) shall be made— (a) if the person making it was present or represented before the Land Administrator at the time when the Land Administrator made his award, within six weeks from the date of the Land Administrator's award under section 14; (b) in other cases, within six weeks of the receipt of the notice from the Land Administrator under section 16 or within six months from the date of the Land Administrator's award under section 14 whichever period shall first expire. (4) The period of six weeks prescribed by paragraph (3)(a) 9 and the periods of six weeks and six months prescribed by paragraph (3)(b) shall not be capable of enlargement by any Court, except in such special circumstances as the Court may think. (Penekanan oleh Mahkamah ini). [6] Di dalam kes ini adalah tidak dinafikan bahawa terdapat kelewatan di pihak Plaintif yang telah cuba memfailkan Borang N selepas tempoh enam minggu tamat (kelewatan selama 40 hari). Fakta yang tidak disangkal juga adalah bahawa Plaintif telah hanya memfailkan permohonan untuk perlanjutan masa pemfailan Borang N selepas 1 tahun 4 bulan 44 hari dari tarikh 23.7.2014 iaitu tarikh award dan 1 tahun 2 bulan 24 hari dari tarikh 13.10.2014. [7] Seksyen 38 (3)(a) Akta jelas memperuntukkan bahawa apabila pemilik tanah hadir untuk siasatan dan tidak berpuas hati atas award yang dikeluarkan, tempoh masa untuk pemfailan bantahan yang di dalam Borang N adalah enam minggu dari tarikh Pentadbir Tanah mengeluarkan award menurut Seksyen 14. Manakala Seksyen 38(3)(b) pula memperuntukkan bahawa 10 tempoh enam minggu ini tidak boleh dilanjutkan oleh mahkamah kecuali atas keadaan-keadaan istimewa (shall not be capable of enlargement by any Court, except in such special circumstances as the Court may think fit). [8] Seksyen 38(4) Akta ini memperuntukkan kuasa budibicara kepada Mahkamah untuk melanjutkan masa bagi pemfailan Borang N di dalam keadaan-keadaan khas atau istimewa. B. Samada terdapatnya keadaan khas/istimewa di dalam permohonan Plaintif untuk membolehkan perlanjutan masa diberikan kepada Plaintif [9] Plaintif telah mendakwa bahawa walaupun pampasan telah ditawarkan kepada pada 23hb Julai 2014, namun bayaran pampasan hanya dibuat pada 10.10.2014. Plaintif juga telah mendakwa bahawa pampasan yang diawardkan oleh Defendan telah tidak mengambilkira kegunaan tanah (zoning), tidak mengambilkira harga pasaran semasa dan juga tidak mengambil kira kadar sewa semasa dan tiada faedah ke atas sewa yang diberikan itu. Plaintif telah 11 seterusnya mendakwa bahawa hartanah-hartanah tersebut telah ambil diguna pakai oleh pihak Grandsaga semenjak tahun 1997 sehingga 2014, tanpa apa-apa bayaran kepada Plaintif sedangkan Grandsaga telah mengutip berjuta-juta Ringgit Malaysia daripada pengguna lebuhraya Cheras Grandsaga (dan masih mengutip). Plaintif juga mendakwa bahawa waris-waris Mohd Shariff telah terpaksa menunggu 17 tahun untuk mendapat bayaran pampasan bagi tanah yang telah digunapakai oleh Grandsaga sejak tahun 1997. [10] Plaintif di dalam percubaannya bagi mendapatkan perlanjutan masa telah menghujahkan bahawa di dalam kes beliau terdapat atau wujud keadaan istimewa untuk Mahkamah ini menggunakan kuasa budi bicara yang ada padanya. Bagi membuktikan keadaan-keadaan istimewa atau khas, Plaintif telah membangkitkan alasan-alasan berikut: (a) Mohd Akbal telah menghidap penyakit lemah jantung dan pada masa material sedang menjalani rawatan untuk penyakit jantungnya dan buah pinggang di Subang Medical Centre dan dengan yang demikian beliau tidak dibenarkan untuk memandu 12 kereta dan berjalan kerana tekanan darahnya terlalu rendah dan kerap pitam. Justeru itu, atas keadaan kesihatannya yang agak serius beliau telah terlepas pandang dan juga tidak mampu memasukkan bantahan beliau melalui Borang ‘N’ dalam masa yang ditetapkan di bawah Seksyen 38 (3) Akta. (b) Pada masa yang material, Plaintif juga tidak dapat membantu Mohd Akbal kerana Plaintif pada kebanyakan masanya berada di luar negara atas urusan rasmi Kerajaan Malaysia iaitu sebagai Wakil Malaysia ke Bangsa-Bangsa Bersatu di Geneva (Jawatankuasa mengenai Hak Kanak-Kanak - UNCRC). Menurut Plaintiff selain dari menjadi Wakil Malaysia di Jawatankuasa UNCRC, beliau juga merupakan Naib Pengerusi dan juga menjadi fokal point bagi Jawatankuasa UNCRC ke ASEAN. Atas jawatan-jawatan yang disandangnya, Plaintif mengatakan bahawa beliau telah terpaksa kerap keluar negara yakni tiga (3) kali setahun dan setiap kali keluar negara ianya untuk masa yang agak lama sekurang-kurang 4-5 minggu. Plaintif seterusnya menyatakan bahawa walaupun beliau adalah seorang pengamal undang-undang, tetapi atas tugasan 13 rasminya tersebut, beliau telah mengurangkan lebih daripada separuh kerja-kerja amalan guamannya. [11] Di dalam menyokong hujahannya bahawa terdapat atau wujudnya keadaan-keadaan istimewa atau khas bagi kesnya, Plaintiff telah merujuk kepada kes-kes berikut: i. Penang Development Corporation v. Collector of Land Revenue Penang & Anor (1976) MLJ 89 Arulanandom J telah menyatakan bahawa: “ there is a discretion given to the court although in a qualified manner and as long as circumstances exist which in the opinion of the court are special, the court can exercise its discretion”. Arulanandom J di dalam kes Penang Development Corporation telah merujuk kepada dua kes Inggeris yang merujuk kepada keadaan-keadaan istimewa atau khas atau “special circumstances” iaitu kes Re Norman (1886) 16QBD 637 dan Re Boycott (1885) 19 Ch D 571. Di dalam kes Re Norman (1886) 16QBD 637, Lopes LJ telah menyatakan: “The statute uses the words ‘special circumstance’. Those are wide comprehensive and flexible words and i think the legislature intended them to be so and that no court can or ought to lay down any exhaustive definition of them....It is for the discretion of the 14 judge to say what are the special circumstances in a particular cases. Manakala di dalam kes Re Boycott (1885) 19 Ch D 571 Bowen LJ telah menyatakan: “special circumstances I think are these which appear to the judge so special and exceptional as to justify taxation. I think no court has a right to limit the discretion of another court though it may lay down principles which are useful as a guide in the exercise of its own discretion”. ii. Senapi Bin Long & Satu Yang Lain v. Pentadbir Tanah Daerah Langkawi Kedah [1994] 1 MLJ 459. Mohd Noor PK (YA ketika itu) antara lain telah menyatakan: “that even though Section 38 (4) of the Act was worded in a prohibitory manner, the court is vested with a discretion to enlarge it and that it is up to the court to define “special circumstances” iii. Lai Tai v. The Collector of Land Revenue [1960] 1 MLJ 82: “...It is impossible to lay down any definition of special circumstances. All that can be done is to look at the circumstances of each case and see whether the applicant was in any way to blame for her failure to apply to the collector within proper time and if not whether the circumstances which prevented her from so doing were special...” 15 iv. International Financial Society v. City of Moscow Gas Co, (1877) 7 Ch D 241 (CA) di mana James LJ ,apabila merujuk kepada kuasa Mahkamah untuk melanjutkan masa/ tempoh untuk merayu di bawah Order 58, Rules of Supreme court of Judicature di England sebelum pindaan pada (1910) telah menyatakan: “The limitation of the time to appeal is a right given to the person in whose favour a Judge has decided. I think we ought not to enlarge that time unless under some very special circumstances indeed that is to say, if there has been any misleading through any conduct of the other side , as was mentioned in the analogous case of vacating inrolment which came before Lord Cottenham and afterwards before Lord Chelmsford in which it was laid down that the right of the suitor was ex debito justitiae to keep his inrolment of the decree if it was made in due time , unless in very special cases. For instance, where there was anything like misleading on the part of the other side, or where some mistake had been made in the office itself, and a party was misled by an officer of the Court or again where some sudden accident which could not have been foreseen some sudden death or something of that kind, which accounted for the delay; in such cases leave might be given”. v. Re Cheesman (1891) 2 Ch D 289 CA “The Court has got out of the narrow groove laid down by some of the earlier cases , which decide that there must be pressure and 16 overcharge , or overcharge so gross as to amount to fraud and it is now settled by Re Boycott and Re Norman that each case must stand on its own circumstances . The court cannot lay down a hard and fast rule not imposed by the Act: it must be judged in each cases whether there are special circumstances such as to make it right and reasonable that a bil should be taxed although it has been paid.” [12] Peguam Defendan pula telah menghujahkan bahawa pada dasarnya peruntukan Seksyen 38 Akta yang telah menggunakan perkataan "shall" menunjukkan bahawa tempoh yang ditetapkan adalah bersifat mandatory yang mana sekiranya pemilik tanah atau mana-mana pihak berkepentingan yang tidak berpuas hati dengan award Pentadbir Tanah, ia hendaklah memfailkan bantahannya melalui Borang N dan peruntukan ini telah dengan jelas menetapkan tempoh masa untuk pemfailan Borang N adalah enam minggu dari tarikh award pampasan dikeluarkan oleh Pentadbir Tanah menurut Seksyen 14 Akta ataupun dalam keadaan kes-kes lain enam minggu dari tarikh penerimaan notis Pentadbir Tanah di bawah Seksyen 16 Akta yang mana tempoh akan luput terlebih dahulu. 17 [13] Menurut peguam Defendan lagi, Seksyen 38(4) Akta juga telah menyatakan dengan begitu jelas bahawa tempoh masa 6 minggu tersebut tidaklah boleh dilanjutkan oleh Mahkamah melainkan terdapatnya keadaan istimewa atau khas pada hemat Mahkamah untuk membenarkannya. [14] Adalah menjadi hujahan peguam Defendan seterusnya telah menghujahkan bahawa berdasarkan peruntukan-peruntukan Akta, undang-undang adalah amat jelas bahawa had masa perlulah dipatuhi sekiranya pemilik/ pihak berkepentingan atas mana- mana tanah berhasrat untuk membantah terhadap keputusan award pampasan yang ini dibuat oleh oleh Pentadbir Tanah. Namun, sekiranya pemilik/ pihak berkepentingan atas mana-mana tanah berhasrat untuk membantah terhadap keputusan award pampasan gagal memfailkan bantahan di dalam Borang N dalam tempoh masa yang diperuntukkan, maka tempoh masa tidaklah boleh dilanjutkan melainkan terdapatnya keadaan-keadaan khas atau istimewa yang boleh dipertimbangkan oleh Mahkamah. [15] Peguam Defendan telah merujuk Mahkamah ini kepada kes-kes 18 berikut: i. Singapore Para Rubber Estate Ltd v Pentadbir Tanah Daerah, Daerah Rembau, Negeri Sembilan [2009] 1 CLJ 13 di mana Alauddin Mohd Sheriff HBM (YAA ketika i tu) memutuskan seperti berikut : "(3) ... Any prejudice or injustice, if at all, caused to the appellant was the result of its own attitude. Had the appellant remained vigilant in making the application for the enlargement of time, i t would have had the opportunity to ventilate its case before the High Court. But it chose to remain nonchalan t and treated its right with apathy" Di dalam kes yang sama, Zulkifli Ahmad Makinuddin HMP (YAA pada ketika itu) di dalam kes yang sama telah bersetuju dengan HBM dan menyatakan seperti berikut: "(1) ... The true position in the present case was that the appellant had been out of time in filing its application for objection to the award within six weeks from the date of the LA's award. The appellant in fact had already failed in the first hundle of satisfying the high court and court of appeal of the just ification to grant an enlargement of time to file objection procedings under Form N" 19 ii. Damai Motor Kredit Sdn Bhd & Anor v Kementerian Keria Raya Malaysia [2015] 1 CLJ 44. Mahkamah Rayuan telah di perenggan [25] penghakimannya telah merujuk kepada kes Singapore Para Rubber Estate seperti berikut: "[25] In this regard, we make reference to Federal Court case of Singapore Para Rubber Estate Ltd v Pentadbir Tanah Daerah, Daerah Rembau, Negeri Sembilan [2009] 1 CU J 13, where the court said: [50] In order for the appellant to succeed under s 38(4) it had to establish that there existed special circumstances to warrant the court to exercise that discretion. The onus therefore was on the appellant. [51]The discretion to be exercised by the court was not absolute and unqualified and had to be exercised sparingly. Di perenggan [26] Mahkamah Rayuan telah menyatakan berikut: [26] Likewise, in this appeal the respondent must show special circumstances and the court must exercise its discretion to enlarge the time for filing of objection sparingly." i i i . A rthur P onn iah Gurubatham & S atu Laqi v P en tadb ir 20 Tanah Wilayah Persekutuan [2008] 3 CLJ 17, Mahkamah memutuskan seperti berikut: "(1)... Tidak dinafikan bahawa pemohon hadir di hadapan responden untuk siasatan di bawah s. 12 Akta tersebut, dan jelas siasatan telah ditamatkan pada 16 Jun 2005 di mana responden telah membuat award sebanyak RM95 skp bagi tanah dan RM100,000 bagi bangunan. Memandangkan pemohon sendiri telah hadir, maka peruntukkan yang terpakai bagi pemohon mengemukakan bantahan ialah mengikut s 38(3) (a) Akta tersebut, iaitu dalam masa enam minggu daripada tarikh responden membuat award iaitu pada 16 Jun ... Seterusnya, pemohon gagal menunjukkan keadaan khas bagi membolehkan mahkamah ini melaksanakan kuasa budibicara memihak pemohon... " iv. Tan Bun Cheonq v Pentadbir Tanah, Pejabat Derah dan Tanah Bukit Mertajam Pulau Pinang [1992] 1 LNS 85 di mana Mahkamah memutuskan bahawa; "Apakah yang dikatakan sebagai keadaan khas di dalam kes ini? Hanya satu, iaitu Pemohon menyangka dia tidak perlu membuat bantahan bertulis, tegasnya dalam Borang N. 21 Seperti yang saya katakan tadi bahawa kesilapan bona fide atau kejahilan tentang undang-undang bukanlah semestinya keadaan khas, walaupun boleh diberi pertimbangan. Di dalam kes ini saya akui memang terdapat kesusahan jika permohonan ini t idak diluluskan. Tetapi bolehkah dikatakan dia tidak bersalah (not at fault)? Pada pandangan saya dia tidak boleh dikatakan tidak bersalah. Seterusnya dalam memutuskan sama ada terdapat keadaan khas, Mahkamah perlu juga menimbang kelewatan Pemohon membuat permohonan ini. Di sini, permohonan ini dibuat selepas lebih kurang satu tahun selepas tempoh untuk membuat bantahan itu tamat. Berlainan dengan apa yang berlaku di dalam kes Lau Cher Hian dan kes Penang Development Corporation, terdapat kelewatan yang tidak munasabah di dalam kes… " DAPATAN MAHKAMAH [16] Di dalam kes ini fakta yang jelas dan tidak langsung dipertikaikan bahawa semasa Defendan membuat siasatan dan mengeluarkan perintah award, Plaintif sendiri hadir bersama Mohd Akbal dan jurunilai mereka dari Chartwell International Sdn Bhd pada 23.7.2014. Perintah telah dikeluarkan oleh Defendan pada 23 22 bulan Julai 2014 dan tempoh enam minggu berakhir pada 3.9.2014 . Plaintif telah hanya memfailkan Borang N nya pada 13.10.2014 selepas 40 hari dari tempoh masa pemfailan enam minggu tamat. Borang N yang difailkan diluar tempoh masa tersebut telah ditolak oleh Defendan dan Defendan juga telah memaklumkan kepada Plaintif pada 13.10.2014 supaya Plaintif mendapatkan perintah Mahkamah untuk memasukkan Borang N tersebut. [17] Dari tarikh 13.10.2014 sehingga permohonan Kandungan 1 difailkan pada 6.1.2016 iaitu untuk satu tempoh lebih satu tahun (lebih tepat 1 tahun 2 bulan 24 hari), Plaintif langsung tidak mengambil apa-apa tindakan lanjut. [18] Plaintif telah cuba menyakinkan Mahkamah ini bahawa keadaan kesihatan Mohd Akbal adalah penyebab Borang N tidak dapat difailkan dalam tempoh masa yang ditetapkan. Plaintif telah cuba merujuk Mahkamah ini kepada beberapa surat dari Sime Darby Medical Center (Pusat Perubatan) bertarikh 18.10.2014, 3.4.2013, 28.3.2013, 2.8.2012. Mahkamah ini telah membuat 23 penelitian teliti terhadap keempat-empat surat daripada Pusat Perubatan tersebut. Untuk itu, keempat-empat surat tersebut diperturunkan: 24 25 26 27 28 [19] Daripada surat-surat Pusat Perubatan ini, Mohd Akbal tidak dinafikan telah tidak sihat sejak dari tahun 2012 lagi. Keadaan kesihatannya bukanlah sesuatu yang baru timbul pada tahun 2014. Beliau sememangnya mempunyai masalah kesihatan sejak dari tahun 2012 lagi. Di dalam surat Sime Darby Medical Center yang awal yakni bertarikh 2.8.2012 , doktor telah mengesahkan bahawa Mohd Akbal menghadapi penyakit yang berkaitan jantungnya (suffers from coronary artery disease and heart failure) dan perlu dimasukkan ke hospital pada 6.8.2012 bagi menjalani prosedur angioplasty . Perakuan yang sama berkenaan sakit jantungnya telah juga dibuat oleh doktor tujuh (7) bulan kemudian dengan pengesahan bertarikh pada 28.3.2013 dan 3.4.2013. [20] Selepas pengesahan doktor bertarikh 3.4.2013, Mahkamah ini tidak nampak apa-apa surat doktor berkenaan kedudukan kesihatan Mohd Akbal sehinggalah surat pusat perubatan bertarikh 18.10.2014. Perlu dinyatakan bahawa pada tarikh 18.10.2014, tempoh enam minggu pemfailan Borang N telahpun luput. Oleh itu dari tarikh 3.4.2013 sehingga 18.10.2014 29 walaupun Mohd Akbal ada penyakit berkaitan jantung tetapi tiada pengesahan doktor yang beliau langsung tidak bo leh bergerak, tidak boleh menjalani kehidupan seharian atau dimasukkan ke hospital untuk rawatan. Justeru itu, walaupun terdapat pengesahan doktor yang dikeluarkan pada 3.4.2013, Mohd Akbal masih berupaya hadir untuk siasatan di hadapan Defendan bersama Plaintif dan jurunilai mereka pada 23.7.2014 . [21] Mahkamah ini perlu menekankan bahawa di sini surat Sime Darby Medical Center selanjutnya telah diberikan pada 18.10.2014 dengan doktor mengatakan berikut: “I have advised againsts unnessesary mental st ress and excessive physical activity .” [22] Apa yang jelas dan terang adalah dari tarikh tempoh 23.7.2014 sehingga 3.9.2014 , tidak ada keterangan langsung tentang keadaan Mohd Akbal samada beliau terlantar sakit di hospital atau tidak boleh bangun langsung sehinggakan tidak boleh untuk memberi arahan kepada mana-mana wakil, peguam atau Plaintif 30 sendiri untuk memfailkan Borang N. [23] Seperkara lagi surat doktor ini bertarikh 18.10.2014, adalah penyataan doktor selepas tempoh 40 hari tempoh pemfailan Borang N luput atau tamat tempoh. Seperti Mahkamah katakan tadi tidak ada apa-apa yang dinyatakan tentang keadaan Mohd Akbal dalam tempoh enam minggu dari tarikh 23.7.2014 sehingga 3.9.2014 . Kedua, walaupun ada pengesahan doktor pada 3.4.2013 yang menyatakan bahawa dari tarikh 3.4.2013 Mohd Akbal dinasihatkan rehat untuk tempoh 4 minggu dan elak dari physical exertion , namun perlu dinyatakan tempoh rehat 4 minggu itu tamat pada 3.5.2013. Maka dari bulan Mei 2013 sehingga 18.10.2014 tidak ada halangan untuk Moh d Abal menjalankan aktiviti hariannya sehingga berupaya hadir untuk siasatan pada 23.7.1014. [24] Mahkamah ini menyatakan seperkara lagi bahawa p emfailan Borang N adalah satu prosedur ringkas yakni apa pemilik tanah atau pihak-pihak berkepentingan atas tanah hanya perlu menyatakan dalan Borang N tersebut alasan-alasan 31 ketidakpuasan hati atas award. Kalau Mohd Akbal boleh hadir untuk siasatan walaupun ada perakuan kesihatannya pada bulan April 2013, pemfailan Borang N bukanlah sesuatu yang sukar dilakukan apatah lagi jurunilai mereka ada bersama semasa siasatan dijalankan. [25] Di samping itu juga, keadaan kesihatan Mohd Akbal telah diketahui oleh waris-waris sejak tahun 2012 lagi, maka Plaintif yang merupakan seorang peguam semestinya tahu apa yang harus dibuat samada menggantikan Mohd Akbal atas alasan kesihatannya, ataupun bantahan boleh dibuat oleh seorang wakil dan paling mudah dalam keadaan ini adalah melantik peguam dan memberi arahan kepada peguam. Arahan sebegini boleh diberikan dari katil hospital sekiranya Mohd Akbal berada dihospital namun tiada keterangan yang sedemikian pun. Apatah di dalam kes Plaintif mempunyai f irma peguam sendiri atas nama Tetuan Yasmeen Hajar & Hairudin. [26] Plaintif telah membangkitkan kedudukan beliau sering keluar negara atas kapasiti beliau di dalam Jawatankuasa Konvensyen 32 Mengenai Hak Kanak-anak, Bangsa-Bangsa Bersatu, di Geneva, Wakil Malaysia, Ahli Jawatankuasa dan Naib Pengerusi Jawatankuasa Konvensyen mengenai Hak kanak-kanak di Geneva. Bagi membuktikan kapasiti yang beliau pegang ini, Plaintif telah mengeks ibitkan eksibit-eksibit di dalam Eksibit “DYS-C” yang merupakan keratan-keratan akhbar/portal/laman web dan Surat Pengerusi Jawatankuasa Konvensyen mengenai Hak kanak-kanak kenyataan blog yang dikemukakan oleh Plaintif adalah bertarikh berikut: 19.10.2012, 20.10.2012, 20.12.2012 dan 19.12.2012. Kesemua berita di dalam akhbar/portal/laman web/kenyataan blog adalah mengenai perlantikan Plaintif bagi jawatan-jawatan yang disebutnya. Pengerusi Jawatankuasa Konvensyen mengenai Hak kanak- kanak yang berpusat di Geneva bernama Benyam Dawit Mezmur (Benyam) telah mengeluarkan satu surat bertarikh 14.4.2016 yang membuat pengesahan berkenaan perlantikan Plaintif f sebagai ahli bermula Mac 2013 dan pada awal Mei 2015 yang menyatakan berikut: “she is a member of the Bureau of the Committee as a Vice - 33 Chairperson. The Committee has also designated her to be the focal person to ASEAN, which among other things has meant to attend and present in consultations and seminars in AS EAN and South Asian Countries.” [27] Mahkamah ini tidak menafikan akan jawatan-jawatan yang dipegang oleh Plaintif dan atas tugasannya yang beliau terpaksa keluar negara tiga kali setahun untuk tempoh sebulan dan juga terpaksa ke luar negara ASEAN. [28] Namun, Mahkamah ini perlu menekankan disini bahawa apa yang dieksibitkan oleh Plaintif adalah petikan akhbar/laman web/kenyataan blog tahun 2012 dan 2013 mengenai perlantikan beliau akan jawatan-jawatan tersebut dan juga pengesahan Benyam bertarikh 14.4.2016 mengenai perlantikannya. Bagi Mahkamah ini, perkara-perkara berikut perlulah ditekankan: a) Pertamanya, bagi tempoh pertama yakni enam minggu dari tarikh 23.7.2014 sehingga 3.9.2014. Tidak ada keterangan langsung telah dikemukakan oleh Plaintif kenapa Plaintif tidak dapat memfailan Borang N dalam tempoh tersebut. 34 Kalau betul Plaintif bersandarkan atas kekerapannya dan kesibukannya ke luar negara untuk tugas rasmi, di hadapan Mahkamah ini tidak keterangan langsung yang Plaintif kemukakan untuk menunjukkan bahawa sepanjang tempoh enam minggu pemfailan Borang N itu beliau berada di luar negara. Begitu juga dengan tempoh 23.7.2014 sehingga 13.10.2014 , tidak ada keterangan langsung yang menunjukkan bahawa untuk sepanjang tempoh 40 hari itu Plaintif berada d i luar negara. [29] Kalaupun diandaikan bahawa pada masa tempoh itu Plaintif sibuk untuk tugas rasmi beliau, Mahkamah ini berpandangan takkanlah kesibukan itu berlarutan sehingga satu tahun 2 /4 bulan sehinggakan tidak ada satu hari pun membolehkan Plaintif memfailkan permohonan perlanjutan masa bagi pemfailan Borang N. Bagi Mahkamah ini juga, kalau Plaintif betul-betul serius dan memandang berat akan hal ini pastinya perkara ini menjadi priori ty atau keutamaan. Plaintif tidak boleh menggunakan alasan tugas rasmi yang keluar negara 3 kali setahun untuk tempoh sebulan dan keluar negara ke negara 35 ASEAN dan tugas yang mencabar dan terpaksa membuat pembentangan dan sebagainya sebagai alasan kelewatan selama lebih setahun memfailkan permohonan lanjutan. [30] Di samping itu, Mahkamah ini perlu juga menekankan di sini bahawa kita kini adalah di dalam zaman atau era dunia tanpa sempadan (borderless world) yang mana tidak ada halangan komunikasi langsung di mana-mana kita berada. Dunia tanpa sempadan membolehkan komunikasi di seluruh pelusuk dunia samada melalui telefon bimbit, internet, skype dan bermacam- macam lagi kemudahan telekomunikasi. Kalaupun Plaintif berada di mana-mana negara pun, Plaintif boleh berkomunikasi. Apatah Plaintif di dalam kes ini mempunyai f irma guaman sendiri yang mana Plaintif adalah prinsipalnya. Apa yang perlu Plaintif lakukan walaupun dimana beliau berada adalah mengarahkan peguam di dalam f irmanya samada memfailkan Borang N dalam tempoh enam minggu ataupun kalau tempoh enam minggu telah luput memfailkan permohonan lanjutan masa sesegera yang mungkin. 36 [31] Sekali lagi, di dalam perihal Borang N, Borang N adalah satu borang yang mudah dan ringkas yang hanya memerlukan pihak yang membantah terhadap award pampasan Defendan menyatakan alasan-alasan bantahan. Di dalam hal ini juga, perlu dinyatakan sekali lagi jurunilai Plaintif ada bersama semasa siasatan dijalankan. Dengan adanya jurunilai mereka bersama semasa siasatan dijalankan, sememangnya Plaintif dan/atau Mohd Akbal dengan mudah memgetahui apakah alasan-alasan ketidakpuasan mereka atas award Defendan. [32] Perlu juga Mahkamah ini tekankan bahawa Mohd Akbal telah meninggal dunia pada 29.1.2015 dan Plaintif telah hanya mendapatkan perintah menggantikan Mohd Akbal enam bulan kemudian pada 24.6.2015 dan enam bulan kemudian pada 6.1.2016 baharulah memfailkan permohonan ini . Tindakan ini menunjukkan Plaintif tidak memandang berat dan tidak memberi keutamaan kepada hak undang-undang yang terbuka pada beliau dan Mahkamah ini berpandangan ini bahawa tindakan sebegini merupakan sikap sambil lewa Plaintif di dalam memastikan haknya dapat dipenuhi. Apatah lagi Plaintif sendiri 37 adalah seorang peguam yang sepatutnya tahu mengenai prosedur, peruntukan undang-undang dan keperluan mematuhi peruntukan undang-undang serta perlaksanaan hak pihak-pihak di sisi undang-undang. [33] Mahkamah ini bersetuju dengan peguam Defendan bahawa Defendan tidak seharusnya dipertanggungjawabkan dan menerima kesan akibat daripada sikap sambil lewa Plaintif ini. [34] Maka, berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini bahawa di dalam kes ini tidak terdapat atau tidak wujud keadaan khas/istimewa untuk membolehkan Mahkamah ini menggunakan kuasa budi bicaranya di bawah Seksyen 38(4) Akta untuk melanjutkan masa pemfailan Borang N. [35] Atas alasan-alasan di atas Kandungan 1 ditolak dengan kos kepada Defendan sebanyak RM3000.00. 38 t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 20 Julai 2016 Peguam Plaintif - Tetuan Yasmeen Hajar & Hairudin Dato’ Yasmeen Haji Muhamad Shariff Peguam Defendan - Kamar Penasihat Undang-Undang Negeri Selangor Etty Eliany binti Tesno

Tika 2.6.0

24-752-06/2015

PLAINTIF 1. LER CHENG CHYE 2. LUM TUCK CHEONG DEFENDAN BILLION SHOPPING CENTRE SDN BHD

20/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6b0f2954-624b-4a14-a3af-ebefa4b69b0b&Inline=true

Microsoft Word - 24-752-06-2015 Ler Cheng Chye & 1 lagi Lwn Billion Shopping Centre Sdn Bhd (final) 1 IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO. 24-752-06/2015 In the matter of Billion Shopping Centre Sdn Bhd (Company No. 97690-X). AND In the matter of Shah Alam High Court Order dated 23.8.2010 in Petition No. 26-5-2000. AND In the matter of Order 15 Rule 16 and Order 30 Rule 3 of the Rule of High Court 2012. AND In the matter of Section 184 of the Companies Act 1965. BETWEEN 1. LER CHENG CHYE 2. LUM TUCK CHEONG … PLAINTIFFS AND BILLION SHOPPING CENTRE SDN BHD … DEFENDANT 2 Grounds of Judgment (Encosure 18 – Application to cross examine deponent) A. BACKGROUND FACTS [1] The present application before this Court is an application by the Defendant in Enclosure 18 to cross-examine Mr. Ler Cheng Chye on all the affidavits that he had deposed in support of the Plaintiffs’ Originating Summons. [2] Before this Court proceeds to consider the merits of the Defendant’s Enclosure 18, this Court will first set out the background facts that led the Defendant to file the present application. [3] Both the Plaintiffs (i. Ler Cheng Chye ii. Lum Tuck Cheong) are accountants by profession having an address at C/O Ler Lum Advisory Services Sdn Bhd, B-3-11, Megan Avenue 11, No.12 Jalan Yap Kwan Seng, Kuala Lumpur. 3 [4] The Defendant (Billion Shopping Centre Sdn Bhd) is a company incorporated under the Companies Act 1965 which operates Billion Shopping Centre in Kajang Selangor and has investments in unquoted shares in 35 other subsidiary companies throughout Malaysia. [5] In 2006, an individual by the name of Chin Keat Seng had filed a petition under Section 181 (“181 Petition”) of the Companies Act 1965 in the Shah Alam High Court vide Petition No. 26-5-2006 against the Defendant and six other individuals. Chin Keat Seng (Petitioner), at the material time was one of the Defendant’s directors and was also a shareholder. It must be noted that the Defendant here was the First Respondent in the 181 Petition. [6] Pending the hearing and disposal of the 181 Petition, the Petitioner had also filed an interlocutory application for an Interim Receiver to be appointed to take control and manage all assets, money and/or proceeds of the Defendant and to operate and manage the Defendant’s back accounts and/or cash balances. 4 [7] The Petitioner’s application was granted by the High Court on 23.8.2010 (“First High Court Order”). This First High Court Order also set out provisions for the appointed Interim Receiver’s remunerations, liabilities, payments, costs, charges and expenses relating to their tasks and duties during the receivership. The relevant terms of the First High Court Order in respect of such provisions can be found in items 1, 5 and 6 of the order which are as follows: “Item 1: Bahawa sehingga perbicaraan tindakan ini atau sehingga sebarang perintah selanjutnya, Ler Cheng Chye (No. K.P. 531103-10-5757) [Lesen Liquidator No. 871/04/11 (J/PH)] dan Lum Tuck Cheong (No. K.P. 581012-10-6389) [Lesen Liquidator No. 1005/05/11 (J/PH)] dilantik untuk mengendali dan mengurus semua aset, wang dan/atau hasil Responden Pertama dan diberi autoriti untuk mengoperasi dan mengendalikan akaun-akaun bank dan/atau baki-baki tunai Responden Pertama;” “Item 5: Bahawa Pemegang Interim diberi indemniti terhadap semua liabiliti, upah, kos, caj dan bayaran yang dibuat secara berpatutan oleh Pemegang Interim semasa menggunakan kuasa dan menjalankan kewajipan yang dinyatakan, DAN 5 BAHAWA bayaran tersebut dibuat dari aset Responden Pertama dan diberi keutamaan sebelum semua pemiutang. Item 6: Bahawa upah Pemegang Interim dibuat dari aset Responden Pertama secara bulanan menurut bil yang dikeluarkan, dan dibayar berasaskan kos masa yang dihabiskan oleh Pemegang Interim dan/atau pekerjanya pada kadar jam biasanya;” [8] Pursuant to the First High Court Order, the Plaintiffs were appointed as Interim Receivers of the Defendant. [9] To ensure that the overdraft of the Defendant does not exceed its closing balance as at the date of appointment of the Plaintiffs and the return from investment in the form of dividends is received by the Defendant, the Plaintiffs had obtained an order from the Shah Alam High Court on the 17.2.2011 (“Second High Court Order”). This Second High Court Order gave direction to the Plaintiffs to maintain the Defendant’s overdraft as at 23.8.2010 and to appoint a Corporate Representative to the subsidiaries of the Defendant. 6 [10] Five of the six individuals named as the Respondents in the 181 Petition namely; i. Chin Choon Min, ii. Lee Yoke Lam, iii. Wong Chee Leong, iv. Lee Siew Hung and v. Mak Joon Cheong filed an appeal in the Court of Appeal against the First High Court Order. [11] On 20.7.2011, the Court of Appeal had allowed the appeal in part wherein in respect of the appointment of the Plaintiffs, the First High Court Order was amended so that the Plaintiffs instead of being Interim Receivers, the Plaintiffs’ position was substituted to be Monitoring Accountants and this substitution is to take effect from the date of the Court of Appeal’s order (“Court of Appeal Order”). [12] The Court of Appeal Order reads inter-alia as follows: “1. Rayuan ini dibenarkan sebahagian seperti terma-terma dibawah:- (a) pelantikan penerima-penerima interim Encik Ler Cheng Chye (No. K/P: 531103-10-5757) Lesen Likuidator No. 871/04/11 (J/PH) dan Encik Lum Tuck Cheong (No. K/P: 581012-10-6389) Lesen Likuidator No. 1005/05/11 (J/PH) (“PI”) bukanlah suatu perkara yang diperlukan (not necessary) untuk memelihara 7 aset-aset Billion Shopping Centre Sdn Bhd (“BSCSB”) sementara menunggu pelupusan Petisyen No. 26-5-2006 (“Tindakan tersebut”). (b) … (c) PI dilantik sebagai Akauntan Pemantau BSCSB berkuatkuasa dari hari perintah ini. (d) Pengurusan BSCSB dikembalikan sepenuhnya kepada lembaga pengarah BSCSB. (e) Fi akauntan Pemantau hendaklah dibayar oleh pihak yang kalah dalam Tindakan tersebut. (f) … (g) Terma-terma dalam perintah Mahkamah Tinggi bertarikh 23.08.2010 dipinda selaras dengan terma perintah ini. [13] Having carried out their statutory duties as Interim Receivers of the Defendant pursuant to the First High Court Order until the substitution 8 ordered by the Court of Appeal and on the premise of Items 5 and 6 of the First High Court Order, the Plaintiffs had demanded for their remuneration and charges be paid by the Defendant. By issuing a letter of demand dated 18.8.2011 to the board of directors of the Defendant, the Plaintiffs demanded the payment of the sum of RM886,005.90 being the outstanding Interim Receivers’ costs and expenses due to them for interim receivership period between 23.8.2010 to 20.7.2011. Together with their letter of demand, the Plaintiffs had also enclosed a schedule (the schedule) containing full particulars of time spent and the basis of time cost for the various tasks and duties dated 21.4.2011 comprising of 197 pages. [14] This Court must emphasize here that the schedule is also exhibited as Exhibit “LCC-14” of the Affidavit in Support of the Plaintiffs’ Enclosure 1. [15] The Defendant’s board of director by its letter dated 14.9.2011 insisted that the Plaintiffs to apply to the Court for approval of their remuneration or have their charges validated by Court. 9 [16] The insistence of the Defendant’s board of director for a Court Approval had led the Plaintiffs to file an Originating Summons (Enclosure 1) on 23.6.2015. By their Enclosure 1, the Plaintiffs sought for the following reliefs: i. A declaration that the Plaintiffs are entitled to be paid their remuneration on the terms contained in the Order dated 20.7.2011. ii. That the Plaintiffs’ remuneration as Interim Receivers from 23.8.2010 to 20.7.2011 be approved in the amount of RM926,809.00. iii. That all costs and expenses incurred by the Plaintiffs from July 2010 to July 2011 be approved in the sum of RM135,496.45. iv. That the remuneration paid to the Plaintiffs totaling RM176,299.55 out of the assets of the Defendant towards 10 payment of their remuneration as Interim Receivers and out of pocket expenses be approved. v. That the Defendant do pay the Plaintiffs the outstanding remuneration and costs and expenses of RM886,005.90 as fixed by this Honourable Court. vi. That the costs of this application on solicitor-client basis be paid by the Defendant. vii. Further or other relied as this Honourable Court thinks fair and expedient. [17] The Plaintiffs’ application was strenuously opposed by the Defendant and by November 2015, the Defendant had filed two affidavits in reply in opposing the Plaintiffs’ application. While the parties were still in the midst of exchanging their affidavits in respect of Enclosure 1, the Defendant had on 12.11.2015 filed Encl.18 to seek a court order compelling the attendance of the 1st Plaintiff, Mr Ler Cheng 11 Chye (“LCC”) to be cross-examined on all the affidavits he had deposed in support of the Plaintiffs’ Originating Summons. B. THE LAW [18] The law and the principle relating to an application for cross- examination of a deponent are trite and well settled. It is trite law that where in any matter or cause which had been begun by Originating Summons and in such proceedings, on the application by any party the Court has discretionary power to order or to compel a deponent of an affidavit to attend court for cross-examination on his/her affidavit. [19] The Court’s wide discretionary power to summon attendance of a deponent to be cross-examined is clearly stipulated under Order 38 Rule 2(2) of the Rules of Court 2012 (ROC 2012) which reads; “ In any cause or matter begun by originating summons and on any application made by notice of application, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the court may, on the application of any party, 12 order the attendance for cross examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.” [20] While this Court recognizes the conferment of such general and unlimited power under Order 38 Rule 2(2) of the ROC 2012, this Court also acknowledges that this discretionary power must be judiciously exercised with due regard to the principle of law and authorities binding on it. Thus it would be apt for this Court at this juncture to address and digest the cases which were brought to this Court’s attention by both solicitors of the Plaintiffs and the Defendant in light of this discretionary power. i. In Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638, it was held in paragraph [25] that there are three prime considerations which would influence the Court in the exercise of its discretion to allow or disallow cross-examination on affidavits, namely:- 13 i) the truth of the averment in the affidavit must be challenged or the issues of fact identified. ii) cross-examination would only be allowed if the disputed fact is relevant to the issue to be decided and must be limited to that issue only; and iii) cross-examination would not advance the cause of justice and should be refused if there is sufficient affidavit evidence or contemporaneous documents to enable the court to property decide without the need of cross-examination. ii. In Regional Centre for Arbitration v Ooi Beng Choo & Anor [1998] 2 MLJ 383, it was held at page 391 that:- “It is settled law that the court retains an absolute discretion whether or not to allow to cross-examine a deponent on his affidavit. Generally, cross-examination will not be allowed unless there is a question of fact to be tried which requires viva voce testimony tested by cross-examination (see Arab- Malaysian Merchant Bank Bhd v City Properties Sdn Bhd [1992] 4 CLJ 2123), or where there are ‘special circumstances’” Re Smith & Fawcett Ltd [1942] 1 All ER 542; [1942] Ch 304. In 14 the sphere of judicial review proceedings, it is matter for the discretion of the court; it should not be allowed except where the court believes that it is necessary in order that justice may be done between the parties (per Lord Denning MR in George v Secretary of State for Environment & Anor (1979) 38 P & CR 609…” iii. In Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189, Salleh Abas FJ in considering whether to exercise his discretion as regards the respondent’s application for cross-examination at page 190 had stated this: “It is necessary for me to see how the proposed cross- examination would be relevant to the issue in the appellant’s application. An examination of this issue is therefore essential…” iv. In Emporium Jaya (Bentong) Sdn Bhd v Emporium Jaya (Jerantut) Sdn Bhd (No. 2) [2002] 5 MLJ 675, Ramly Ali J ( as he then was ) stated at page 685 C-D:- 15 “In order to enable me to exercise my judicial discretion as regards the present application made by the applicants in the present case, it is necessary for me to see how the proposed cross-examination would be relevant to the issue in the petition. An examination of this issue is therefore essential in order to enable me to determine whether the applications are made ‘without just cause, or motivated by desire to delay proceedings or without bona fide or sham or vexatious.” v. In Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd [2001] 4 MLJ 56, the Court of Appeal held inter-alia: (1) (Per Siti Norma Yaakob, NH Chan JJCA and KC Vohrah J concurring) As to whether the dismissal of the appellants' oral application fell within the ambit of ss 67(1) and 68 of the Courts of Judicature Act 1964 so as to be a judgment or order which was appealable, the instant case was concerned with a substantive application under O 38 r 2(3) of the Rules of the High Court 1980 ('the RHC'). The lack of formal application here which the parties were prepared to do away with due to a constraint of time did not change the character of the application. As such, when the judge decided that 16 the petition could proceed without the necessity of cross-examining any deponent, he had made an order on a substantive application for which a dissatisfied party could appeal (see pp 60H, 61D-E); Re Products Ltd [1985] 1 NZLR 710 distinguished. (2) (Per Siti Norma Yaakob JCA, KC Vohrah J concurring) The grant or refusal of an application under O 38 r 2(3) of the RHC was very much an exercise of a judge's power of discretion and the question which had to be determined was whether the judge had exercised his discretion judicially. He had taken into consideration that the appellants had never identified the issues for which they maintained cross-examination had become necessary, nor had they shown that the factual disputes which they alleged were raised by the respondents' affidavits were relevant to their petition to warrant cross-examination. The judge had also taken into consideration the appellants' delay in making the application to cross-examine. Under these circumstances, the trial judge had not erred in law or in principle when he exercised his discretion, as he had 17 put his mind to relevant considerations in deciding as he did (see pp 61F-I, 62A, C). (3) (Per KC Vohrah J, Siti Norma Yaakob JCA concurring) It was important to take into account all factors when considering an application for cross-examination and if it has little relevance or little weight to the issue which the judge has to decide, then cross-examination should not be permitted (see p 64B); Comet Products v Hawkex Plastics [1971] 1 All ER 1145 (folld) and Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189 (folld) followed. The judge below had certainly considered the issue of relevancy. He was mindful that although the petition was grounded under s 218 of the Act, yet counsel for the petitioners had argued that cross-examination was necessary because the basis of the petition was not only mismanagement of the affairs of the company, which fell under s 218 of the Act, but also oppression of minority rights, which fell under a different provision, s 181 of the Act. Quite clearly, the bringing in of the ground of oppression of minority rights under s 181 of the Act was completely irrelevant (see pp 64H-65A). 18 vi. Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng [2003] 5 MLJ 56), Abdul Aziz J (as he then was) held inter-alia: “It is, therefore, not true in every case that the court is equipped to deal with conflicts in affidavit evidence without resort to cross-examination. Where it is necessary to come to a determination of the matter that is the subject of a conflict of affidavit evidence and it is not possible to reject the evidence of one side for any of the stated reasons, the court is not equipped to deal with the conflict without resort to cross- examination.” [21] The Plaintiffs had objected to the Defendant’s application on two grounds, namely: i. there was delay on the part of the Defendant in making application; and ii. there are no merits in the Defendant’s application. The Defendant’s Argument 19 [22] The Defendant’s application to cross-examine LCC was grounded on the following arguments: i. the Plaintiffs by their Enclosure 1 are claiming from the Defendant payment for all charges, remuneration and expenses due to them for carrying out substantial works and tasks during the interim receivership and to substantiate their claims, the Plaintiffs had exhibited voluminous documents in their affidavits supporting Enclosure 1. The Defendant however had challenged the Plaintiffs’ necessity to carry out many of the works the Plaintiffs claimed that were necessary. The Defendant had also in their affidavits in reply alleged that the Plaintiffs’ artless discharge of its office has caused damage to the Defendant’s business. The artless conducts of the Plaintiffs according to the Defendant do not warrant the Plaintiffs to be paid any remuneration. ii. In view of the numerous challenge raised by the Defendant against the Plaintiffs’ claims, the Defendant had contended that there are 14 Disputed Matters / Issues that require this Court’s 20 determination. The 14 disputed matters / issues which have been tabulated by the Defendant in Exhibit LSH-1 of Enclosure 22 are as follows: 1. Whether the Plaintiffs are entitled to claim from the Defendant remuneration, costs and expenses for the following: (a) remuneration as Interim Receivers from 23.8.2010 to 20.7.2011 in the amount of RM926,809.00; (b) costs and expenses incurred by the Plaintiffs from July 2011 in the sum of RM135,496.45 which consist of – (i) RM25,368.75 as costs and expenses incurred; (ii) RM92,368.75 as fees for the Plaintiffs’ solicitors, Messrs Iza Ng Yeoh & Kit; (iii) RM10,000.00 as charges of Datamet Merchant Consultants Sdn. Bhd. (“Datamet”); and (iv) RM7,759.20 as charges of Anirass Gaya Security Services Sdn. Bhd. (AGSS’). 21 2. Whether it was necessary for the Plaintiffs to peruse personal files of the Defendant’s employees. 3. Whether AGSS’ the appointment as additional security guards by the Plaintiffs was necessary. 4. Whether renewal of the Defendant’s insurance policies by the Plaintiffs with Hayat Insurance Brokers Sdn. Bhd. (“Hayat Insurance”) instead of Hong Leong Assurance Berhad (“HLAB”), which was the Defendant’s existing insurers prior to the Plaintiff’s appointment as interim receivers of the Defendant, was for the best interest of the Defendant. 5. Whether the Plaintiffs’ services as interim receivers of the Defendant was required for the renewal of licenses and permits even though this was something that could have easily been undertaken by the Defendant’s existing staff. 6. Whether the Plaintiffs failed to prevent RHB Bank Berhad (“RHB”) from recalling the Defendant’s only overdraft facility. 22 7. Whether the Plaintiff’s actions in denying the Defendant’s directors from the affixing the seal on the seal on the share certificates was just and reasonable. 8. Whether the Plaintiffs were entitled to retain the Defendant’s properties as liens over the purported unpaid charges of the Defendant. 9. Whether the Plaintiffs had caused the Defendant to lose their suppliers. 10. Whether the issue of indemnity of the Plaintiffs’ charges was not challenged by the Defendant in the appeal to the court of Appeal, Civil Appeal No. B-02(IM)-2771-2010. 11. Whether the Defendant objected to the Shah Alam High Court Order dated 23.8.2010 (“HC Order”) when it was granted. 12. Whether the cash collected at the Defendant’s premises was less than the payments recommended by the Defendant’s staff. 23 13. Whether the Plaintiffs were empowered to deal with the AGM of the Defendant. 14. Whether the Defendant’s subsidiaries and their employees had to be dealt with by the Plaintiffs as interim receivers of the Defendant. iii. It was also the argument of the Defendant that these 14 issues are live issues which are crucial in determining whether the Plaintiffs are justified in their remuneration claims. iv. It was further argued by the Defendant that evidence relevant to these 14 issues can only be obtained by calling LCC to give evidence as evidence by way of affidavit is not sufficient for this Court to make its finding. The Defendant finds support from the following authorities: (Lindwall v Lindwall [1967] 1 All ER 470, Chai Chung Ching Chester v Diversey (Far East) Pte Ltd [1991] 3 CLJ 444, Kay Hian & Co v Jon Phua Ooi Yong [1989] 1 MLJ 284, Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng [2003] 5 MLJ 56). 24 C. THE DEFENDANT’S DELAY IN APPLYING FOR CROSS- EXAMINATION [23] It was submitted on behalf of the Plaintiff that there was a delay on the part of the Defendant in making the application as the Defendant had only filed its application six months after the Plaintiffs’ application was filed. In support of their contention, the counsel for the Plaintiffs has relied on the decision of the Court of Appeal in the case of Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd where the Court of Appeal had affirmed the High Court Judge’s decision and held inter alia that delay would defeat the right to cross-examine. Indrani’s decision was followed by the High Court in Dato’ Dr Henry Ooi Kwee Lim v Majlis Perubatan Malaysia [2012] 3 CLJ 619. [24] On the allegation of delay, this Court is in agreement with the Plaintiffs’ counsel that there was a delay on the part of the Defendant in applying for LCC to be cross-examined on his deposition. The Defendant here had only filed Enclosure 18 on 12.11.2015. LCC’s affidavit affirmed 19.6.2015 in support of the Originating Summons 25 was served on the Defendant on 25.6.2015 and in opposing the Plaintiffs’ application, the Defendant was able to file two affidavits in reply, namely Enclosure 14 affirmed on 27.8.2015 and Enclosure 17 affirmed on 26.10.2015 refuting the Plaintiff’s claim on without the need to cross-examine LCC. [25] It must be noted that Enclosure 14 is a 24 pages affidavit, whilst Enclosure 17 runs to 14 pages. The Defendant’s ability to file two lengthy affidavits without oral evidence of LCC is telling that the Defendant was able to address the particularized items for claims put forth by the Plaintiffs. It is more probable than not that the Defendant itself finds no real necessity to call LCC for cross-examination, owing to the delay in making the application, and the Defendant’s ability to address the Plaintiffs’ claims through the Defendant’s own affidavits. [26] It is trite law that an application to cross-examine a deponent must be made without delay and should be made once the affidavit that is intended to be cross-examined has been filed. Thus, on the ground of delay, the Defendant’s application must fail. 26 [27] For the sake of completeness, this Court would proceed to consider the merits of the Defendant’s application. D. THERE IS NO NECESSITY TO CROSS-EXAMINE LCC TO DETERMINE THE ISSUES RAISED IN THE ORIGINATING SUMMONS [28] This Court is very much guided by the principles laid down by numerous decided authorities on the exercise of court’s power under Order 38 of the ROC 2012. In the present case, for this Court to determine whether the cross examination of LCC is necessary to enable this Court to make its finding on the issues raised, this Court must firstly closely examine the reliefs sought by the Plaintiffs in their application. In prayer 1 of its Enclosure 1, the Plaintiffs are basically seeking a relief of declaratory in nature that this Court declares that the Plaintiffs is entitled to be paid their remuneration during their receivership. [29] In this connection, this Court must take cognizance of the fact that when the Plaintiffs first demanded their payment in 2011 from the 27 Defendant, the Defendant’s board of director had in its letter dated 14.9.2011, insisted that the Plaintiffs should get a court order to validate their claim. In the same letter dated 14.9.2001, despite receiving the schedule itemizing the claims by the Plaintiffs, the Defendant did not at all challenge claims made by the Plaintiffs. There were no complaints at all from the Defendant that the Plaintiffs’ claims are not justified, exorbitant, the claims are for unnecessary works, unreasonable claims, artless works and so forth. This Court must reiterate here that the Defendant merely responded to the Plaintiffs’ claims asking the Plaintiffs to channel its claims through a Court’s approval. The Defendant had never contended to challenge any of the itemized claims by the Plaintiff to be unjustified, exorbitant, unreasonable, unnecessary or artless works. [30] Now, when the Plaintiffs applied for a declaration that they are entitled to their remunerations of RM926,809.00 and costs/expenses of RM 135,496.45, the Defendant had strongly challenged the claims and contended that there are 14 disputed facts which are relevant to the issues and these disputed issues cannot be resolved by affidavit evidence. It was also the contention of the Defendant that the 28 voluminous documents exhibited by the Plaintiffs in support of their claims are in-house documents and were generated by the Plaintiffs themselves, and therefore those documents are self- serving documents and must be scrutinized vide cross-examination. The Defendant suddenly contends that there is a need to cross-examine LCC on the contents of his affidavits and for him to prove the same when all this while at the time the Defendant initially received the claims itemized in volume (through the Plaintiffs’ letter) by the Plaintiffs, the Defendant never disputed any of the claims. [31] In this regard, upon close scrutiny of the two affidavits in reply filed by the Defendant in opposing the Plaintiffs’ application, this Court is in full agreement with the Plaintiffs that what the Defendant is alleging is simply that the Plaintiffs must discharge the burden of proving that the Plaintiffs are entitled to the remunerations that they are claiming. [32] It is this Court’s considered view that all of the 14 issues raised are issues that should be determined at the hearing of the Originating Summons. However, although the 14 issues may be relevant to determine the Originating Summons, this Court nonetheless 29 disagrees with the alleged necessity to call LCC for cross- examination simply because LCC’s attendance would not advance the cause of justice. In fact calling LCC for cross-examination would be a cause to an injustice causing undue delay to the proceedings. The affidavits and its exhibits have given ample room for the Defendant to dispute the claims by the Plaintiff. The hours, particulars, nature, and charges of the Plaintiffs’ claim have been clearly itemized and particularized by the Plaintiffs. [33] In fact, the Defendant has had the room to dispute the Plaintiffs’ claim since the year 2011, five (5) years ago when the Plaintiffs first demanded payment from the Defendant. The Defendant did not even bother to dispute the particulars since then and only now at this juncture five (5) years later viciously dispute the Plaintiffs’ claim. Not only that, ample room for dispute is available merely through the due process of the Originating Summons. All that the Defendant has to do is to have its own deponents to depose its grievances against the particulars of claim and exhibit its own set of evidences to challenge the Plaintiffs’ set of depositions and exhibited evidences. 30 [34] In the simplest iteration, the Plaintiffs have put forth their claims and evidences to the claims, and the Defendant has all the room to dispute the claims and put its own evidences against the Plaintiffs’ claims via exchange of exhibits. It is not as though that the truth of the Plaintiffs’ claim cannot be proven or disproven via depositions and affidavit evidences. There were evidences exhibited to corroborate the claim, surely then the Defendant (if indeed having a defence against the claim) without the need to cross-examine LCC, would have its own set of evidences and depositions to dispute the Plaintiffs’ claim. [35] The present case is not a case of an abject lack of evidences for this Court to properly determine the case. The Plaintiffs have come forth with evidences to support their claim. The case is then open for the Defendant to disprove the claim through its affidavits. The truth or the determination of the case can be addressed without the need to call LCC for cross-examination. The Defendant in its application to cross- examine had only raised 14 issues that it intends to prove to be crucial to the determination of the Originating Summon. However, what was also crucial to be proven is that cross-examination is 31 required to determine these issues. This Court has no problem to find that the issues may be relevant to the Originating Summon. But the Defendant has utterly failed to prove that there is a dire need to call LCC for cross-examination and that there is a lack of contemporaneous evidences for the Court to make a proper finding. Proving the pertinence of an issue is a matter entirely different from proving the necessity of a cross-examination. E. COURT’S DECISION [36] Thus, it is this Court’s finding that calling LCC’s attendance for cross- examination in the present case would only cause undue delay to the proceeding. There is sufficient affidavit evidence and contemporaneous documentation to enable this Court to determine the issues without the necessity to cross-examine LCC. [37] Based on the aforementioned reasons, this Court finds no merits in the Defendant’s application. Hence the Defendant’s application in Enclosure 18 is dismissed with costs of RM 6000.00. 32 ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 20th July, 2016 For the Plaintiff - Messrs Iza Ng Yeoh & Kit Izabella De Silve Chow Yee Wan For the Defendant - Messrs Wang Kuo Shing & Co Roger Peter Karen Lee

Tika 2.6.0

24C(ARB)7-02/2015 & 24C(ARB)-16-03/2015

PLAINTIF ASEAN Bintulu Fertilizer Sdn Bhd DEFENDAN Wekajaya Sdn Bhd

18/07/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fdb317bc-60ee-4b0a-97da-62fa98f20f9d&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: 24C(ARB)-7-02/2015 In the matter of Section 42 of the Arbitration Act 2005 And In the matter of the Arbitration Act 1952 (Revised 1972) and in the matter of an Arbitration between Wekajaya Sdn Bhd (Claimant) and Asean Bintulu Fertilizer Sdn Bhd (Respondent) And In the matter of a Final Award published by Datuk Professor Sundra Rajoo on 26.12.2014 BETWEEN ASEAN BINTULU FERTILIZER SDN BHD ... PLAINTIFF (COMPANY NO. 65199-P) AND WEKAJAYA SDN BHD ... DEFENDANT (COMPANY NO. 227571-V) (Heard together with) 2 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: 24C(ARB)-16-03/2015 In the matter of Section 37 of the Arbitration Act 2005 And In the matter of Order 69 and 92 of the Rules of Court 2012 And In the matter if the Arbitration Act 1952 (Revised 1972) and In the matter of an Arbitration between Wekajaya Sdn Bhd (Claimant) and ASEAN Bintulu Fertilizer Sdn Bhd (Respondent) And In the matter of a Final Award published by Datuk Professor Sundra Rajoo on 26.12.2014 BETWEEN 3 ASEAN BINTULU FERTILIZER SDN BHD ... PLAINTIFF (COMPANY NO. 65199-P) AND WEKAJAYA SDN BHD ... DEFENDANT (COMPANY NO. 227571-V) THE JUDGMENT OF YA TUAN LEE SWEE SENG [1] The Plaintiff here, Asean Bintulu Ferlitizer Sdn Bhd ("ABF"), was desirous of increasing their bulk urea storage capacity at their existing plant in Bintulu. They had engaged the Defendant, Wekajaya Sdn Bhd ("WSB") to carry out the construction of a new bulk urea storage building ("the Works"). WSB was one of the 5 invited tenderers after a prequalification exercise. [2] ABF issued an invitation to bid ("ITB") for a fixed non-escalating lump sum type contract for the project for a contract duration of 12 months. The ITB allowed for a Provisional Sum for 25,000 m3 for hard rock excavation. WSB submitted its Bid Proposal for the total tendered sum of RM8,873,771.10 which was subsequently revised to RM9,614,898.15. WSB quoted a separate sum of RM2 million as Provisional Sum for hard rock excavation in the event that hard rock is 4 encountered during the performance of the excavation works at the unit rate of RM80.00/m3. [3] According to WSB, during a Techno-Commercial Meeting on 10 October 2000, ABF and Protek Engineer Sdn Bhd ("Protek") who is the designer of the project, verbally made representations and/or gave warranty to WSB that the rock quantity on the project site was non- existent or negligible. In reliance on this representation and/or warranty, WSB reduced the unit rate of rock excavation from RM80.00/m3 to RM50.00/m3. [4] WSB accepted the Letter of Award on 6 November 2000 for the construction of the works for a fixed non-escalating lump sum contract value of RM9,614,898.15 excluding the Provisional Sum for hard rock excavation. The original contract duration stated in the Letter of Award was 12 months, commencing from the date of acceptance and to be completed on or before 6 November 2001. [5] According to WSB, during the execution of the Works, it encountered several principal delay events for which it was not responsible. That had caused delay in the Works and it was only able to complete the Works sometime on or about 31 January 2003. Parties proceeded to refer the dispute to arbitration to a single arbitrator. WSB was the Claimant and ABF the Respondent in the Arbitration. 5 Problem [6] The following 10 issues were submitted to the Arbitrator for determination: Issue 1: Whether given that the contract provides a Provisional Sum for rock excavation of 25,000 m3, the Claimant (WSB) is entitled to an extension of time as a result of the discovery of the rock?; Issue 2: Whether the Respondent (ABF) had misrepresented any material facts or had given any warranty as to the amount of rock on site?; Issue 3: Whether the parties had agreed to an extension of time to 20 July 2002 based on excavation of 16,000 m3 of rock only?; Issue 4: Whether there are any other events of delay that would entitle the Claimant (WSB) to an extension of time beyond 20 July 2002?; Issue 5: If the above question is answered in the affirmative, whether the extension of time to July 2002 adequately takes into consideration these other events of delay?; Issue 6: Whether the delays to the completion of the Works were caused by or contributed to by WSB?; 6 Issue 7: Whether if WSB is entitled to an extension of time to July 2002 (or to another date) the amount of prolongation costs that the Claimant WSB is entitled to?; Issue 8: Whether apart from the claim for prolongation costs, WSB is entitled to any of its other claims?; Issue 9: Whether if WSB is only entitled to extension of time to July 2002, ABF is entitled to claim for liquidated damages for the delay caused by WSB?; Issue 10: Whether ABF is entitled to the increased costs of completing the works? [7] The arbitration hearing was protracted. It took 27 days but stretched over from 2007 to 2009. Thereafter the learned arbitrator only handed down the Final Award on 26 December 2014. There was some 4 years delay after the date of last submission of the parties. [8] The learned Arbitrator substantially decided in favour of WSB and dismissed the whole of ABF's claims. The Final Award is summarized as follows: 1. That ABF shall pay the sum of RM12,342,185.29 to WSB; 7 2. That ABF shall pay interest at the rate of 8% simple interest per annum on the sum of RM12,342,185.29 from 31 January 2003 to WSB to 1 August 2012; 3. Thereafter ABF shall pay interest at the rate of 5% simple interest per annum on the sum of RM12,342,185.29 from 2 August 2012 until the actual realization of the said payments; 4. That ABF shall bear and pay WSB's costs of this Arbitration on a party and party basis; 5. That ABF shall pay the costs of the Award, 6. That all other requests and claims of WSB and ABF are rejected. The heads of claims for which the learned Arbitrator had awarded RM12,342,185.29 are as follows: A. Value of work done and variations : RM 3,259,666.22 B. Loss of profit from omission of works: RM 90,277.39 C. Financial Charges : RM 4,631,647.37 D. Prolongation Costs : RM 4,360,594.31 TOTAL: RM12,342,185.29 8 Prayers [9] ABF, being dissatisfied with the Final Award, has applied to set aside the Award both under s 37 of the Arbitration Act 2005 ("AA 2005") as well as s 42 AA 2005 by way of 2 separate Originating Summonses filed in OS 24C(ARB)-16-03/2015 and OS 24C(ARB)-7-02/2015 respectively. Both Originating Summonses were, by consent of the parties, heard together. [10] Under the s 37 AA 2005 application, ABF has applied to set aside the Final Award on ground of public policy in that the learned Arbitrator had taken 4 years to hand down his Award. ABF also applied under s 37 AA 2005 to set aside the Final Award on ground that the learned Arbitrator's determination of the Issues No. 1 to 10 above had been made in breach of natural justice when the learned Arbitrator considered matters that were not pleaded and further that he had reached conclusions that are not supported by the facts, evidence or the law when he failed to consider the arguments put forward by ABF properly or at all. [11] Under the s 42 AA 2005 application, the following questions of law were referred to this Court for its determination as follows: 9 A. Where a construction contract includes a Provisional Sum item whether the contractor can claim an extension of time if it carries out these provisional sum works? B. Whether as a matter of law if the contract requires a party to inspect the site, can it derogate its responsibilities by relying on the alleged representations made by other party? C. Whether pursuant to the Arbitration Act 1952 ("AA 1952"), the Arbitrator is correct in law to grant the Respondent pre- award interest amounting to RM10,975,407.69? D. Whether if the AA 1952 is silent on the issue of the granting of pre-award interest, does the Arbitrator have the powers to grant pre-award interest? Questions C and D were added by means of an Amended Originating Summons dated 25 September 2005 in Enclosure 22. Principles - Application under s 37 AA 2005 [12] S 37 AA 2005 that is relevant to this application provides as follows: "37 (1) An award may be set aside by the High Court only if: ... 10 (b) the High Court finds that: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or (ii) the award is in conflict with the public policy of Malaysia. (2) Without limiting the generality of subpara (1)(b)(ii), an award is in conflict with the public policy of Malaysia where: (a) the making of the award was induced or affected by fraud or corruption; or (b) A breach of the rules of natural justice occurred: (i) During the arbitral proceedings; or (ii) In connection with the making of the award." (emphasis added) Whether a delay of 4 years in delivering the Arbitral Award is a breach of the public policy of Malaysia that justify setting aside the Award [13] It cannot be overstated that the delay of 4 years is most unfortunate and regrettable. To begin with the 27 days of hearing have 11 stretched over 3 years from 2007 to 2009. It must have been obvious to all and especially to the learned Arbitrator that any further delay in delivering the award would not be in the best interest of the parties. It must not be forgotten that one of the main reasons for promoting and preferring arbitration to litigation is speed of disposal and the parties' choice as to who should be arbitrator or who should constitute the arbitral tribunal. It is often perceived that the national court system and structure is so heavily burdened with endless cases such that the wheels of justice have come to attain the pathetic description of "grinding be it ever severely so slowly". This is of course no longer true of the Malaysian Court system where all cases filed at all levels of courts' hierarchy are now generally being disposed of within 9 months of filing. Even if it should take more than a year, one can be quite certain that such a case, no matter how complicated, would have come under the radar of the Managing Judge who is managing administratively the speedy disposal of such a case. [14] It is not unfair to say that in jurisdictions where the national courts are efficient, litigation has been faster than arbitration; not to mention less costly too! To continue to support arbitration as a preferred mode of dispute resolution, all parties and in particular the arbitrator chosen, must act timeously with a sense of urgency, such that a final award is 12 handed down within a reasonable time. Inordinate delay in delivering an award does not augur well for the arbitration regime where both speed and finality have been touted as its unassailable advantage over litigation. It does not engender confidence in the system and on the contrary, it undermines faith in the system. [15] Having said that, is it then a breach of public policy for an award to have been delivered after 4 long years after the submissions have been received? One has to distinguish between what is not in the public interest and what is public policy. That which is not in the public interest need not amount to a breach of public policy. It is certainly not in the public interest for an arbitrator to have delayed 4 years in handing down his Award. [16] There is a very real danger that with the passage of time, memory may fade and with that the impression made on one's mind by the witnesses. It must be appreciated that in an arbitration, an arbitrator is the master of facts and generally no one can set aside his finding of facts even if it be made based on otherwise insufficient evidence unless there has been a breach of natural justice in arriving at the factual findings. An arbitrator's finding of facts is generally sacrosanct and immune from any interference by a Court. It behoves the arbitrator then 13 to decide with all due diligence, appreciating that his findings of facts cannot generally be disturbed or challenged. [17] It is only natural that a party aggrieved by a long-delayed award would be only be too keen to canvass every reasonable ground to challenge the award including that the long delay is a breach of public policy and so the award ought to be set aside. However, here is a case where the parties are partly responsible for the delay in not having taken pro-active steps in constraining the Arbitrator to deliver his award earlier though all said, the ball was chiefly at the feet of the Arbitrator. Whilst appreciating that both parties could have played a contributing role in ensuring that an award is delivered on time, that does not in any way detract from the obligation and duty of the Arbitrator to hand down his award within a reasonable time after the submissions of the parties have been received by him. [18] What ABF could and should have done would be to write to the Arbitrator concerned a gentle reminder of the parties' anxious wait for the Award. Should ABF fear that such an action would be viewed disfavourably by the Arbitrator or worse still, might be incurring his wrath with the fearful result that the Award might be against it, it could easily get both WSB and itself to write a joint-letter reminding the Arbitrator most tactfully that parties would be expecting the delivery of his Award 14 soon. In most cases this should work and I do appreciate that parties having spent a considerable amount of time and money in preparing the case and calling their witnesses including expert witnesses, would prefer not to have the Arbitration start all over again should the Arbitrator be removed by the Court. S 16(1) AA 2005 provides that the parties may agree on the termination of the arbitrator's mandate if he fails to act without undue delay. S 16(2) further provides that if the other party disagree on the termination of the mandate of an arbitrator, the party so desiring may apply to the High Court to decide on such a termination and no appeal shall lie against the decision of the High Court. Further, the parties have an equal obligation in law to ensure that the Arbitration was proceeding without delay. They have an obligation to apply to the Arbitrator to prevent inordinate delay (see Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 (HL)). [19] The national courts where the seat of arbitration is, would of course play a supportive role and no courts would condone such a protracted delay. Indeed if delay is fully attributed to the arbitrator then the said arbitrator should not only be mulcted with costs but should also refund the parties all fees paid to him, in the event that the Court should terminate his mandate as an arbitrator. 15 [20] Here was a case where ABF was content to wait as until an Award is given, and here in favour of WSB, it would not need to pay any monies out and indeed the amount not paid out, could be reinvested in other projects. Having decided to wait, willingly if not reluctantly, both parties have lost their right to complain on account of delay with respect to the delivery of the Award. Clearly, if the Award had been in favour of ABF, it would not have complained of any delay simply because it was prepared to go along the waiting period. Now that the Award is against it, it appears quite hollow, if not hypocritical, for ABF to then say that it is a breach of public policy, for the Award to have been delivered 4 years after the last submission of the parties. For ABF to now complain about the delay smacks of them saying “set aside the award because it is not in our favour” (see Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 1 SLR (R) 510, page 528 (CA) and Coal & Oil Co LLC v GHCL Ltd [2015] SGHC 65, paragraph 65 (HC)). While patience is undeniably a virtue, yet it ceases to be one when the circumstances constrain, if not compel one to act pro-actively. Long-suffering that suffers lamentably long must give way to steadfastness and speedy action in all seriousness. [21] Further the Arbitrator did write, albeit towards the end of the 4th year of waiting, for an extension of time to make his Award. Perhaps 16 parties had little choice after having waited so long for his Award but to convey their consent to an extension of time. After that there was another request for a further extension which the parties granted. [22] All said, while it leaves much to be desired, and certainly not in the public interest and in the interest of the parties and the system of arbitration as we know it, the long delay still falls short of being a breach of public policy and more so when parties were quite prepared to play, however reluctantly, the waiting game. [23] Thankfully no similar cases have come before our Courts and hopefully this would be the last one. Cases from other jurisdictions have managed to shed some light on what is clearly an anomaly and an aberration in an otherwise attested arbitral process in this country. [24] The Singapore Court of Appeal in Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609, had to deal with a delay of about 10 years for an arbitrator to deliver his award from the completion of the hearing. The applicant there argued that after such a prolonged delay, the arbitrator would be incapable of rendering a proper award and that this is demonstrated in that he had made the award in a callous manner and did not deal with the issues raised. The Court of Appeal in rejecting this ground observed as follows: 17 "56 Another relief prayed for by the appellants in the Motion is for the setting aside of the award on the ground of misconduct on the part of the arbitrator. Four broad grounds are advanced to substantiate misconduct. First, the fact of a delay of some ten years from the completion of hearing in rendering an award. Second, after such a prolonged delay the arbitrator would be incapable of rendering a proper award and this is demonstrated in that he had made the award in a callous manner, and did not deal with the issues raised. Furthermore his reasons were deficient. Third, the imposition of interest at 8% pa for a period of twelve years, ten of which were due to the arbitrator's delay. Fourth, the arbitrator failed to deal with the counterclaim of the appellants. 57 In his grounds of judgment the learned judge below did not touch on this question of misconduct. Be that as it may, we shall briefly deal with the alleged grounds in turn. Under s 18 of the Act, an arbitrator is required, inter alia, to make an award with all reasonable despatch. A delay of the magnitude as in this case is grossly inordinate and cannot be tolerated. We deplore such a length of delay on the part of an arbitrator. It can only undermine faith in arbitration. The court would have removed the arbitrator for such a cause if an application had been made to the court pursuant to s 18. However, in this instance neither party felt strongly enough about the delay to take that step, though they (mainly the respondents) did send reminders to the arbitrator: see P 53 above. Now that the award had been rendered we do not think the delay per se could be a good ground to set aside the award. It smacks of the appellants 18 saying, set it aside because it is not in our favour. Whatever error the arbitrator made in the award should now be corrected in accordance with the procedure in s 28. 58 Turning to the second ground, that the issues were not adequately dealt with and/or the reasons in the award are deficient, this is really a ground to appeal against the award, not to set it aside. In raising this ground, it seems to us that the appellants are in substance seeking to side step the restrictions on appeals imposed in s 28. This should not be permitted. Section 28(1) does not allow the setting aside of an award on an arbitration agreement on the ground of errors of fact or law on the face of the record. 59 Turning to the third ground, the imposition of interest at 8% pa on the damages awarded, it has not been shown how that is wrong other than the fact. That the award was rendered so late. But, as between the two parties to the dispute, so long as the award was not rendered the appellants had the use of the money and thus the award of interest is not unjustified. 60 As regards the last ground, it should be borne in mind that the substance of the counterclaim was that the architect had over- certified payments and the appellants asked for repayment of the same. A perusal of the award shows that the arbitrator had in dealing with the respondents' claim under the final certificate, dealt with this aspect in working out the final accounts of the project. The counterclaim as pleaded was very much a part of the defence. Thus, we find there is no merit in this ground." (emphasis added) 19 [25] In the Singapore case of Coal & Oil Co LLC v GHCL Ltd [2015] SGHC 65, Justice Stephen Chong J. adopted the reasoning of the Court of Appeal in Hong Huat Development in the context of breach of public policy argument and ruled that delay (of 19 months) by itself is not sufficient to set aside an award: "63 The plaintiff also argues that “Singapore’s public policy demands that any arbitration and its award are presented in a fair and expeditious manner”and that the delay of 19 months in this case constitutes a violation of public policy. With respect, the plaintiff’s argument is misconceived. It trades on a conflation of the concept of public interest with that of public policy. The public interest is the wider concept. It embraces everything that is conducive to the public good ranging from the comparatively minor (clean streets) to the vital (a robust criminal justice system). An innumerable number of things could be described as not being in the public interest. However, the concept of “public policy” in the context of the setting aside of an arbitral award, as noted at [61] above, is much narrower. Violations of “public policy” only encompass those acts which are so egregious that elementary notions of morality have been transgressed. While delay in the release of an arbitral award might not necessarily be in the public interest, it cannot, in itself without more, constitute a violation of public policy. 64 In Hong Huat Development Co (Pte) Ltd v Hiap Hong &Co Pte Ltd [2000] 1 SLR(R) 510 (“Hong Huat”), the court had to consider whether an arbitral award that was released more than 20 ten years after the hearings had concluded should be set aside. The Court of Appeal held that the delay, while“grossly inordinate” and apt to “undermine faith in arbitration”, was not, per se, a sufficient basis for setting aside an award which had already been rendered (see Hong Huat at [57]). The Court of Appeal observed that the aggrieved party ought to have taken action – prior to the issuance of the award – to remove the arbitrator pursuant to s 18 of the Arbitration Act (Cap 10, 1985 Rev Ed). Having elected not to do anything, it had to live by its decision. 65 If a ten year gap between the end of the hearings and the release of the award was not a sufficient basis for setting aside an award then, a fortiori, a 19-month delay cannot be a sufficient basis for setting aside the award. If the delay were truly intolerable, the plaintiff ought to have applied under Art 14 of the Model Law for the mandate of the arbitrator to be terminated before the Award was released. However, it did not do so. It is only making the argument now because the Award that was issued was adverse to the plaintiff and not because of any delay. As bluntly observed by the court in Hong Huat at [57], an application at this late stage “smacks of the [plaintiffs]… saying, set it aside because it is not in our favour.” (emphasis added) [26] In the English case of BV Scheepswerf Damen Gorinchem v Marine Institute [2015] EWHC 1810 (Comm) paragraphs 25-26. Flaux J rejected the contention that an arbitrator’s findings of fact can be revisited if there is delay and described this as an “impermissible attempt” and held as follows: 21 [23] ... In contrast, in s 68 cases, the courts have said time and again that it is not possible for an Applicant to use the section to attack findings of fact made by the tribunal. [24] It seems to me that the furthest the analogy with the appellate decisions on which Mr Vineall QC relied can be taken on a s 68 application is that, in a case of lengthy delay between the hearing and the Award, the court might be more likely to subject the reasons to a close analysis to check that the arbitrator has dealt with all the issues put before him. However, if that analysis reveals that he has dealt with all the issues, how he has dealt with them, whether well or badly, is irrelevant on a s 68 application. As I said in my judgment in Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm), [2014] 1 All ER (Comm) 813, [2014] 1 Lloyd's Rep 255 at 40-41: “ ... Once it is recognised that [the tribunal] has dealt with the issue, there is no scope for the application of section 68(2)(d). As Mr Dunning correctly put it, once it is recognised that the tribunal has 'dealt with' the issue, the sub-section does not involve some qualitative assessment of how the tribunal dealt with it. Provided the tribunal has dealt with it, it does not matter whether it has done so well, badly or indifferently. 41 It is wrong in principle to look at the quality of the reasoning if the tribunal has dealt with the issue. This emerges clearly from the judgment of Thomas J (as he then was) in Hussman (Europe) Ltd v Al Ameen Development & 22 Trade Co [2000] 2 Lloyd's Rep 83 at 56 'I do not consider that s 68(2)(d) requires a tribunal to set out each step by which they reach their conclusion or deal with each point made by a party in an arbitration. Any failure by the arbitrators in that respect is not a failure to deal with an issue that was put to it. It may amount to a criticism of the reasoning, but it is no more than that.'” [25] Mr Vineall QC sought to overcome the fundamental obstacle that it is not open to an Applicant on a s 68 application to challenge the arbitrator's findings of fact by submitting that, because something had gone seriously wrong with the procedure in this case which he said cried out for correction, when that was corrected by sending the case back to another arbitrator, it would be open to Mr Vineall QC to challenge the findings of fact and invite the new arbitrator to make different findings. That submission simply demonstrated that this application is exactly what Mr Hill QC characterised it as being in his skeleton argument, an impermissible attempt to challenge the arbitrator's findings of fact. I consider that there is no basis whatsoever for reaching the conclusion that this restriction on the scope of s 68 applications does not apply in cases where there has been inordinate delay in producing the Award. [26] Were the position otherwise, the obvious question is where would the line be drawn in terms of the length of delay in publication of an Award required before the court would interfere and examine closely the findings of fact in the way in which Mr 23 Vineall QC suggests. Would a delay of three or four months be enough? Would the position be different if the arbitrator had a valid excuse for the delay, such as illness or if the arbitrator were able to demonstrate that despite the delay, he had in fact written the part of his Award dealing with the evidence within a matter of weeks of the hearing? The reality is that there is no principled basis for the approach which Mr Vineall QC advocates." (emphasis added) [27] As was pointed out by Mr Rajendra Navaratnam, learned counsel for WSB, the above case was decided under s 68 of the Arbitration Act 1996 (UK) where the consideration of serious irregularity apply. Under s 68(2)(d) of the Arbitration Act 1996 (UK), the failure of the tribunal to deal with all the issues that were put to it constitute serious irregularity and would be a ground to challenge the award whereas such a failure has not been provided under s 37 or s 42 of our AA 2005. [28] Learned counsel also referred the Court to the English Court of Appeal case of Grahame Henry Bond v Dunster Properties Limited & 2 Ors [2011] EWCA 455a where the appellant challenged the judge’s findings of facts on the ground that the judge did not hand down judgment until some 22 months after the conclusion of hearing. It was ruled by the English Court of Appeal that: (a) A judgment will not be automatically invalidated even where there is a long delay in rendering the judgment. 24 (b) A judge may have adopted the practice of writing the facts immediately after the hearing to mitigate the risk of mis- recollection. (c) On demeanour, a judge’s impression on the demeanour of witnesses can be revived by re-reading of the judge’s notes or alternatively an experience judge would have made notes recording the impression being made on him by the witnesses. [29] The Court of Appeal's insightful observation is reproduced below: “7. The function, however, of the court hearing this appeal is not to impose sanctions or to investigate the reasons why the delay occurred. The function of this court on this appeal, which is principally brought against the judge’s findings of fact, is to consider whether any of those findings of fact should be set aside and a retrial ordered. Findings of fact are not automatically to be set aside because a judgment was seriously delayed. As in any appeal on fact, the court has to ask whether the judge was plainly wrong. This high test takes account of the fact that trial judges normally have a special advantage in fact-finding, derived from their having seen the witnesses give their evidence. However there is an additional test in the case of a seriously delayed judgment. If the reviewing court finds that the judge’s recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgement) it will order a retrial if, having regard to the diminished importance of 25 those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion. This is the keystone of the additional standard of review on appeal against findings of fact in this situation. To go further would be likely to be unfair to the winning party. … 9. Two points need to be added to this helpful passage. First, some judges adopt strategies to mitigate the risk of misrecollection. For example, some judges adopt the practice of immediately writing up the facts required to be set out in a judgement in detail almost immediately after a hearing, and that is obviously a good practice to follow especially where the crucial events turn on oral and not contemporaneous written material… The judge has made his notebooks available and his copies of the submissions which shows that he had detailed notes to work from. 10. The second point that I would respectfully add is to agree with the thrust of two points about the judicial assessment of demeanour made by the Privy Council in Cobham v Frett [2001] 1 WLR 1775 at 1783: “As to demeanour, two things can be said. First, in their Lordship’s collective experience, a judge re-reading his notes of evidence after the lapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the re- reading. Second, every experienced judge, and Georges J 26 was certainly that, is likely to make notes as a trial progresses recording the impressions being made on him by the witnesses. Notes of this character would not, without the judge’s permission or special request being made to him, form part of the record on an appeal. They might be couched in language quite unsuitable for public record.” (emphasis added) [30] The case of Goose v Wilson Sandiford [1998] EWCA 245, can be distinguished in that it was decided on facts completely different from the present case. In that case, the trial judge decided on the issue of representation based on the oral evidence of the witness and that the Court of Appeal found that the trial judge’s assessment could not stand and was against the weight of the evidence. [31] This Court agree with Mr Rajendra that in the present case, the Arbitrator had not relied solely on the oral evidence to find as a fact that ABF made a representation to WSB. This finding of fact was made based also on documentary evidence. In fact, the Arbitrator had analysed the evidence by listing the itemised documentary evidence as well as reproduction of relevant parts of the transcript which he relied on to support its findings. [32] This Court is satisfied that the Arbitrator’s ability to decide on the case was not compromised by the delay. The present case is analogous 27 to the case of Campbell v Hamlet [2005] 3 All ER 1116, page 1124 [Privy Council], where the Privy Council held: “[32] The present case, however, is very different from Goose’s case on the facts. The delay here was, of course, considerably longer. But whereas in Goose’s case, the judge’s ability to decide the case was clearly compromised, here it was not. Here the committee had the full transcripts of all the evidence and it was able to provide a reasoned decision in reliance upon them…” (emphasis added) [33] Learned counsel for WSB further stressed that even in cases of court litigation, an appeal court will only scrutinise and interfere if the findings of fact by the trial judge are plainly wrong. On the other hand, in cases of application to set aside an arbitral award, where there is no right to appeal (which was accepted by the parties when they opted for arbitration) and the findings of fact of an arbitrator are sacrosanct, a Court could only scrutinise the Award to see if the issues are dealt with by the Arbitrator and not to dwell further to see if the findings of fact are correct (Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 1 SLR (R) 510, paragraph 58 (CA) and BV Scheepswerf Damen Gorinchem v Marine Institute [2015] EWHC 1810 paragraphs 25-26 Comm.). With that this Court would readily agree. 28 [34] He further highlighted the fact that no prejudice has been caused as the delay affects both parties to the Arbitration as was pointed out in PT Central Investindo v Franciscus Wongso and others and another matter [2014] 4 SLR 978. Here, according to learned counsel for WSB, his client was more affected by the delay in that it was out of the monies for the period of delay whereas ABF retained the benefit and use of the monies and could invest the same for a return during the period of delay. This Court would look at the problem dispassionately and observed that whatever was the inconvenience and the uncertainty of waiting, both sides were prepared to wait and so both have no right to complain when there were various avenues opened to them should they decide not to wait patiently. Whatever that WSB has suffered is more than compensated by an award of interest of 8% per annum and 5% per annum. [35] It must be pointed out that the Arbitration in the present case was an ad hoc arbitration. There was no specific procedural rules adopted nor was there any specific timeline in which the Arbitrator has to render its Award. In an ad hoc arbitration, the arbitrator has a complete discretion on how the arbitration is to be conducted so long as the procedure adopted does not offend the rules of natural justice. This was underscored in Bremer Vulkan Schiffbau Und Maschinenfabrik v 29 South India Shipping Corporation Ltd [1981] AC 909 (HL), page 985 where the House of Lords held: “I turn then to consider what the mutual obligation of the parties are in a private arbitration. By appointing a sole arbitrator pursuant to a private arbitration agreement which does not specify expressly or by reference any particular procedural rules, the parties make the arbitrator the master of the procedure to be followed in the arbitration. Apart from a few statutory requirements under the Arbitration Act 1950, which are not relevant to the instant case, he has a complete discretion to determine how the arbitration is to be conducted from the time of his appointment to the time of his award, so long as the procedure he adopts does not offend the rules of natural justice.” (emphasis added) [36] Had the arbitration been under the KLRCA Arbitration Rules, then the safeguards of Rule 11(1) would have applied in that the arbitral tribunal shall render its final award within a period which is limited to 3 months and such time limit shall start to run from the date of the closing of final oral or written submissions. Further the arbitral tribunal shall inform the Director of the KLRCA of such date. Rule 11(2) provides that 30 such time limit may be extended by the arbitral tribunal with the consent of the parties and upon consultation with the Director of the KLRCA. [37] I agree with learned counsel for WSB that there has been waiver on the part of ABF as it was (as was WSB) contented to do nothing and wait for the Award with the full knowledge of the delay. The law does not allow a party to adopt a “head we win, tail you lose” attitude nor allow a party to keep the alleged non-adherence to rules “up their sleeve” for later use to challenge the award if it is not in their favour (Hebei Import and Export Corp v Polytek Engineering Co Ltd [1999] 2 HKC 205, at page 227 [Hong Kong Court of Final Appeal]). After all, the option that ABF may request WSB to issue a joint communication to the Arbitrator is always open to it or to even jointly terminate the mandate of the Arbitrator. [38] I agree that in line with the intention of Parliament to encourage international standardisation of arbitration laws (Explanatory Note to AA 2005) this Court ought to give effect to the said intention and adopt the approach taken by these other Model Law jurisdictions to hold that a delay in rendering an arbitral award per se does not violate the public policy of Malaysia nor justify the applicant to revisit the findings of fact of the Arbitrator. The reason for this overarching intention of Parliament is 31 practical; it is for the ease of reciprocity and to maintain comity of nations and a uniform approach to the Model Law. [39] This Court is in agreement with WSB's submission that, although the concept of public policy is not exhaustively defined, it is not a license to vagueness, ambiguity or fanciful ideas. Any new category of public policy must fall within the genre of categories already recognised and the Court should be slow in expanding the recognised categories. The recognised categories are fraud, corruption, bribery or breach of natural justice. [see MMC Engineering Group Berhad & Anor v Wayss & Freytag (Malaysia) Sdn Bhd [2015] 1 LNS 705 at pages 71-72, paragraphs 148-51] [40] In the present case, ABF had failed to establish that a delay in rendering an Award is a breach of a recognised public policy or at least within the established genre of categories of public policy in Malaysia or elsewhere. The cases show otherwise. Whilst this Court must register and record its abhorrence of such an inexcusable delay that can only undermine confidence in the arbitral process as we know it, this Court must resist every temptation to set it aside on ground of a new genre of public policy of delay defeating an Award altogether especially when parties have acquiesced in waiting for the Award. Granted the categories of public policy are not closed but the Court must be cautious of creating 32 or recognizing new ones under the guise of showing contempt and censuring delay in rendering an arbitral award. Whether the Arbitrator's determination of Issues 1-10 is in breach of natural justice or of any public policy and thus justifying the setting aside of the Award [41] It is trite that an applicant challenging an arbitral award based on a breach of public policy must (i) identify the particular public policy which is said to be conflicted and (ii) provide evidence as to how it is conflicted and (iii) how the breach prejudiced their rights. [42] In The Government of India v Cairn Energy India Pty Ltd & Ors [2014] 9 MLJ 149, her Ladyship Mary Lim J (now JCA) examined the authorities from Hong Kong, New Zealand and Singapore dealing with the concept of public policy and concluded that the reasoning in these cases was equally applicable to Malaysia. Justice Mary Lim in Cairn Energy's case (supra) at p 187 observed as follows: "[141] Model Law recognises that each state has its own concept of what is required of 'public policy'. Nevertheless, it may be said that since sub-para 37(1)(b)(ii) is subject to the same overlying conditions as sub-paras 37(1)(a)(iv) and (v), and that is it is discretionary, having regard to the context of the dispute, that it 33 arises out of commercial and contractual transactions where parties have received more than adequate advice, including legal counsel; and that bargains are arms' length, the public policy that is envisaged in this provision must be read narrowly and more restrictively. [142] Although there appears to be no requirement of 'proof in this subpara, and whilst the question of what amounts to 'public policy' may be a difficult one, I would also venture to say that the court nevertheless requires sufficient basis for such allegation or ground in order that it may 'find' that 'the award is in conflict with the public policy of Malaysia'. This requirement extends to not only identifying the particular public policy of Malaysia which is said to be conflicted but also to providing basis of the alleged conflict; that is how it is conflicted or breached; and how the breach has prejudiced the rights of the plaintiff. [143] This makes the threshold high in that by its very nature, it should be immediately obvious or at least fairly rapidly apparent that there has been such a breach or conflict with the public policy of Malaysia court. From the reasons offered, the court must be compelled to agree or that a strong case has been made out that the award conflicts with the public policy of Malaysia. Otherwise, the contractual arrangements of the parties must be 34 maintained. These views were expressed in Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111; and Downer-Hill Joint Venture v Government of Fiji [2005] 1 NZLR 554 at pp 565–570, and I agree that it should be the case here. [144] Discussions along these same lines can be found in Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd [2010] SGHC 80, John Holland Pty Ltd (formerly known as John Holland Construction & Engineering Pty Ltd) v Toyo Engineering Corp (Japan) [2001] 1 SLR(R) 443; affirmed in the Court of Appeal's decision in Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR 86. [145] This narrow approach was advocated and adopted by the Singapore Court of Appeal in PT Asuransi, p 622. The Chief Justice of Singapore expressed clear views that: 59. Although the concept of public policy of the State is not defined in the Act or the Model Law, the general consensus of judicial and expert opinion is that public policy under the Act encompasses a narrow scope. In our view, it should only operate in instances where the upholding of an arbitral award would 'shock the conscience' (see Downer Connect (58) at (136), or is 'clearly injurious to the public good or … wholly offensive to the ordinary reasonable and fully 35 informed member of the public' (see Deutsche Schachbau v Shell International Petroleum Co Ltd [1987] 2 Lloyds Rep 246 at 254, per Sir John Donaldson MR), or where it violates the forum's most basic notion of morality and justice: see Parsons & Whittemore Overseas Co Inc v Societe Generalede L'lndustrie du Papier (RAKTA) 508 F 2d 969 (second Cir, 1974) at 974. This would be consistent with the concept of public policy that can be ascertained from the preparatory materials to the Model Law. As was highlighted in the Commission Report (A/40/17), at para 297 (referred to in A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary by Howard M Holtzmann and Joseph E Neuhaus (Kluwer, 1989) at 914): In discussing the term 'public policy', it was understood that it was not equivalent to the political stance or international policies of a State but comprised the fundamental notions and principles of justice … It was understood that the term 'public policy', which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural 36 respects. Thus, instances such as corruption, bribery or fraud and similar serious cases would constitute a ground for setting aside. (Emphasis added.)" (emphasis added) [43] Issues 1-10 as determined by the learned Arbitrator shall be treated together as they all suffer from the same infirmity in that the specific public policy has not been identified and no evidence has been shown as to how the public policy is said to have been breached. [44] No vague allegation that the determination of the learned Arbitrator is inconsistent with Malaysian law and the rule of natural justice and that the findings are purportedly not supported by evidence and law, would suffice. Basically ABF is unhappy with the determination of the learned Arbitrator on all the Issues 1-10 and even if there be errors of law and fact in respect of the Arbitrator's determination of these issues, that do not qualify to be a breach of public policy that justify setting aside the Award. An error of law or of fact does not engage the public policy of Malaysia. See also the strict approach taken by the Singapore courts in Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1 and in PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR 597. 37 [45] This Court agrees with the following observations of learned counsel for WSB as applying to all the 10 Issues and determination that are sought to be impugned: 1. Both the parties were given sufficient opportunities to address the learned Arbitrator as can be seen from the lengthy hearings of the arbitral proceedings which took 27 days from 2007 to 2009; 2. Both parties were represented by very competent senior counsel in the arbitration; 3. No allegation was made by ABF in respect of demand of right to be heard or anything of the nature that is in breach of the principles of natural justice; 4. The contents of the Final Award reflected the great care taken by the learned Arbitrator in arriving at his determination; 5. The learned Arbitrator considered all the evidence and submissions and deliberated and delivered a reasoned Award. [46] Time and again we must remind ourselves that an application under s 37 AA 2005 is not an appeal and this Court cannot go into the merits of the determination to examine as it were, its correctness. 38 [47] Each of the Issues shall now be dealt with singly or together as may be appropriate but only so much as may be relevant in a s 37 AA 2005 application so as to avoid overlapping with similar issues which are framed as a reference of questions of law under a s 42 AA 2005 application which shall be taken up later in this Judgment. Issue 1 - Whether given that the contract provides a Provisional Sum for rock excavation of 25,000 m3, is WSB entitled to an extension of time as a result of the discovery of the rock? [48] The key contention raised by ABF in respect of Issue 1 is that the learned Arbitrator had failed to properly consider the issue as he did not take into account the contractual provisions of the Contract. [49] The Arbitrator had taken into account the Commercial Proposal, the Techno Commercial Meeting Minutes and the Letter of Award as well as the oral evidence of the parties and the fact that he had arrived at a finding that ABF disagree with is no justification for setting aside the Award. The law does not require the learned Arbitrator to state and list everything that he had considered in arriving at his decision. The sagacious speech of his Lordship Raja Azlan Shah J (as his Royal Highness then was) in Sharikat Pemborong Pertanian & Perumahan 39 v Felda Land Development Authority [1971] 2 MLJ 210 at pp 211-212 is worthy of repetition: "... The arbitrator in the present case had carefully analysed and appraised the material and relevant evidence as he saw fit and came to a conclusion of law. He concluded by saying that: "I find on the evidence that the plaintiffs were not justified in abandoning the contract, as they did in or about the middle of March 1967, before the completion of the contract." When he used the phrase "I find on the evidence" it must be taken as axiomatic that he had taken into account all material and relevant evidence and the determination of points of law and fact to suit the particular case in hand. It would be an intolerable burden on any arbitrator if he were to mention all and every piece of evidence and questions of law and fact in his award. He is not required to do that. He need only refer to material and relevant evidence to suit the key question to the dispute ..." (emphasis added) [50] Likewise the learned Arbitrator in the present case had stated that he had considered all issues and evidence in arriving at his conclusion and determination. At page 16 of the Award the said Arbitrator declared as follows: "... having heard the parties' claims, defence and counterclaims, having reviewed and considered carefully all documents, evidence 40 presented and submissions by the parties, DO HEREBY MAKE AND PUBLISH THIS MY FINAL AWARD as set out hereafter." [51] It must therefore be understood that the learned Arbitrator had considered all issues and evidence without the need for him to list down each and every piece of evidence and submissions considered. Already the Award has stretched over 1,053 pages in 2 volumes. Surely there is a place for brevity without sacrificing brilliance and clarity in analysis of the evidence presented and the conclusion arrived at. [52] The learned Arbitrator had also made the following findings of facts as summarised by learned counsel for WSB as follows: 1. The Provisional Sum for the rock is clearly outside the total sum tendered for the Project, on a plain reading of the Commercial Proposal; 2. The present contract is different from the traditional lump sum contract where the Provisional Sum will be included in the computation of the lump sum contract itself; 3. The sum of RM 2 million as a Provisional Sum for the rock excavation was not priced and so not included in the original contract sum; 41 4. In essence, a true Provisional Sum is that which must be included mathematically in the original contract sum; 5. A true 'Provisional Sum' is used as a temporary 'placeholder' for an element of the work that is not finally decided upon or priced at the time of the signing of the contract. Once the item has been finalised, the actual sum is put into the contract price in place of the Provisional Sum; 6. This exercise is carried out at final account stage where the Provisional Sum is deducted from the contract sum and added back to the true value of the work into the contract sum. In other words, where the Provisional Sums are expended, the Contract Price shall be adjusted accordingly. 7. It is not possible to adjust the Contract Price of RM9,614,898.15 as the RM2 million for the so-called Provisional Sum was not included mathematically in the Contract Price; 8. The suggestion of ABF that earthworks included excavation of rocks is rejected as ABF by its own admission, had recognised and conceded that rock excavation as a variation to the contract; 42 9. WSB had not assumed the risk of rock excavation and that WSB's original work programme did not include rock excavation; 10. ABF had informed WSB that there was negligible amount of rock and that WSB had planned its work Programme premised upon a rock free environment. [53] Based on the above findings of fact, the learned Arbitrator found and held that given the contract provides for a Provisional Sum for rock excavation of 25,000 m3, WSB is entitled to an extension of time for rock excavation as a result of the discovery of the rock. Clearly there is a basis for the learned Arbitrator to arrive at his determination and this Court sees no good reason to interfere with what is essentially a finding of fact of the Arbitrator, he being the master of facts and his findings of facts, sacrosanct. This Court shall not venture into an Arbitrator's pure province and contradict his finding of facts, even if this Court is inclined to a different finding and conclusion (which in this case it is not) as that would fly in the face of settled principles of law in that an Arbitrator's findings of fact is sacrosanct. Issue 2 - Whether ABF had misrepresented any material facts or had given any warranty as to the amount of rock on site? 43 [54] Again most of ABF's argument here is an indirect challenge on the findings of fact of the learned Arbitrator which is not permitted in a s 37 AA 2005 application. The finding of the learned Arbitrator that ABF had misrepresented to WSB that the amount of rocks on site was negligible is a finding of fact which he is entitled to make. It is trite and settled law that an arbitrator is the master of facts and his factual findings are final regardless of whether they are right or wrong. (See Cairn Energy at paragraph 174.) Essentially ABF's contention is that the alleged misrepresentation could not have been so found by the learned Arbitrator as that is contradicted by the written terms of the Contract. That is misconceived. The Federal Court in Tan Swee Hoe Ltd v Ali Hussain Bros [1980] 2 MLJ 164 at p 18 had held that a collateral agreement (which is formed by the representation) can exist side by side with the agreement that it contradicts. The learned Arbitrator made a finding of fact that the Provisional Sum is outside the Contract. [55] There was also the submission from learned counsel for ABF, Mr Sanjay Mohan, that there are no damages that could be claimed from innocent misrepresentation. However, that does not answer the case of breach of collateral warranty on the same facts which was how the matter was pitched and presented before the learned Arbitrator. See Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 44 788 at pp 798-799, per Gopal Sri Ram JCA (later FCJ) adopting Lord Denning's approach in Esso Petroleum Co Ltd v Mardon [1976] QB 801. [56] I would agree with WSB that the contentions raised by ABF in respect of this Issue do not meet the threshold required to establish a breach of public policy. Issue 3 : Whether the parties had agreed to an extension of time to 20 July 2002 based on excavation of 16,000 m3 of rock only? [57] ABF's contention on this Issue is that the Arbitrator had decided on a point beyond the pleadings. This is misconceived. What the Arbitrator had decided and found as a matter of fact that the extension of time to 20 July 2002 was premised on the excavation of 16,000 m3 of rock only and that WSB's licensed surveyor confirmed that the volume of rock was 17,775 m3. This is found at paragraph 17 of the Reply to Defence and Defence to Counterclaim at page 544 of Exhibit D of the Affidavit in Support Vol 2. [58] The Arbitrator had found that an extension of time was expected to be given if the rock quantity was greater. This finding was reinforced by ABF's own admission in its own internal email that an extension is expected at p 47 Exhibit MBM 4 Defendant's Affidavit in Reply. The 45 learned Arbitrator agreed with WSB's submission that it must necessarily be implied in any agreement to complete the Works by a specified date necessitated by matters which were outside WSB's obligation under the Contract (in this case rock excavation or at least rock excavation beyond the negligible quantities warranted), that it must be premised on the quantity of rock known at the time of the agreement. In this regard the learned Arbitrator relied on the Federal Court's decision of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pal Leong [1998] 3 CLJ 503 at pp 532-533. [59] The learned Arbitrator further found that WSB did not agree to complete by a fixed date without knowing what was the final quantities of rock and that WSB was entitled to be compensated for all rock quantities excavated in accordance with the Contract. This would include the money and time claims arising from the rock excavation. Accordingly the learned Arbitrator concluded that ABF's contention that the agreement to extend the completion date to 20 July 2002 was not premised on the amount of rock cannot be sustained. [60] The learned Arbitrator found that ABF had not adduced any cogent evidence to rebut WSB's evidence through its surveyor that the volume of rock excavated was 17,776 m3. Being a finding of fact this Court 46 would be loathed to interfere with it. See Cairns Energy (supra) at p 196 paragraph 174. [61] At any rate, the implied term argument is not material as the learned Arbitrator had made a finding of fact, which ought not to be disturbed by this Court. Moreover the argument was raised in WSB's submission and this was not objected to by ABF. ABF cannot now take issue on this point. See Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788 at p 804. [62] Clearly there was nothing in the learned Arbitrator's decision on Issue 3 that would shock the conscience or is injurious to public good that will qualify as a breach of the public policy of Malaysia or a breach of natural justice. [63] Even if there be errors of law and facts per se, that does not make the Award contrary to public policy. Time and again this Court must remind itself that it does not sit in its appellate capacity. Issues 4 to 6 Issue 4: Whether there are any other events of delay that would entitle the Claimant (WSB) to an extension of time beyond 20 July 2002?; 47 Issue 5: If the above question is answered in the affirmative, whether the extension of time to July 2002 adequately takes into consideration these other events of delay?; Issue 6: Whether the delays to the completion of the Works were caused by or contributed to by WSB?; [64] Learned counsel for ABF was in essence saying that in the event this Court agrees with ABF on Issue 3, then this would mean that the learned Arbitrator was wrong in his conclusions on Issues 4 to 6. As this Court does not agree with ABF on Issue 3 for the reasons above-stated, it would correspondingly mean that this Court should not disturb the findings and determination of the learned Arbitrator in Issues 4 to 6. [65] In any event, a perusal of the learned Arbitrator's reasoning on Issues 4 to 6 in the Final Award shows that his findings are sustainable in law and in fact as well as supported by evidence. See pages 765-899 of Exhibit E of Affidavit in Support Vol 3 and pages 900-962 of Exhibit E of Affidavit in Support Vol 4. On Issue 4 the learned Arbitrator found that there were 3 slope failures. The instructions on how to deal with the first slope failure was only issued by ABF in January 2002. The Arbitrator found as a matter of fact that it was ABF's delay in issuing the instructions on how to deal with the 3 slope failures as the cause of the delay and that WSB was entitled to an extension of time beyond 20 July 48 2002. There were eight delay events as found by the learned Arbitrator under Issue 5 and that the extension of time to July 2002 did not adequately take into consideration the 8 events of delay set out under Issue 5. Accordingly the learned Arbitrator held that WSB was entitled to extension of time until 31 January 2003. On Issue 6 the learned Arbitrator had given his reasons why he had found that the delay in the completion of the Works was not caused by WSB. [66] Even assuming for a moment that there is a problem of sufficiency of evidence for him to arrive at his findings, that is not a ground for setting aside the Award as this is a matter within his province. [67] I agree with learned counsel's submission on behalf of WSB that the learned Arbitrator had considered the evidence for and against in arriving at his determination here and it is not for this Court to inquire into the correctness of his determination as a back door way of re- opening or re-examining the merits of the case. This Court must also guard against treating this challenge under s 37 AA 2005 as an appeal, which it is not. [68] Nothing comes close to shocking the conscience where a breach of natural justice is concerned and otherwise there is no clear public policy that has been identified as having been breached by the 49 Arbitrator. Therefore this ground of setting aside the Award must also fail. Issue 7 : Whether if WSB is entitled to an extension of time to July 2002 (or to another date) the amount of prolongation costs that the Claimant WSB is entitled to? [69] The learned Arbitrator concluded that WSB is entitled to payment of RM4,360,594.31 for prolongation costs. The Arbitrator found that WSB is entitled in law to prolongation costs arising from delay as a result of ABF's breach of contract in the misrepresentation on the quantities of rock and the implied obligation to issue instructions within a reasonable time. The Arbitrator had relied on the case of Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788 at pp 798-799 which observed as follows: " ... the statement of principle contained in the judgment of Lord Denning M.R. in Esso Petroleum Co. Ltd. v. Mardon [1976] QB 801. The Master of the Rolls there said (at p. 817): Ever since Heilbut, Symons & Co v. Buckleton [1913] AC 30, we have had to contend with the law as laid down by the House of Lords that an innocent misrepresentation gives no right to damages. In order to escape from that rule, the pleader used to allege ... that the misrepresentation was fraudulent, or alternatively a collateral warranty. At the trial we nearly always succeeded on collateral warranty... 50 [There] have been many cases... where we have readily held a representation - which induces a person to enter into a contract - to be a warranty sounding in damages. I summarized them in Dick Bentley Productions Ltd v. Harold Smith (Motors) Ltd [1965] 1 All ER 65... In the present case it seems to me that there was a warranty that the forecast was sound, that is, Esso made it with reasonable care and skill. That warranty was broken ... For this they are liable in damages ... In the earlier case of Dick Bentley Productions Ltd v. Harold Smith (Motors) Ltd [1965] 1 All ER 65, Lord Denning M.R. said (at p. 67): Looking at the cases once more, as we have done so often, it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act on it, and it actually induces him to act on it by entering into the contract, that is prima facie ground for inferring that the representation was intended as a warranty. It is not necessary to speak of it as being collateral. Suffice it that the representation was intended to be acted on and was in fact acted on." [70] Learned counsel Mr Rajendra's submission for WSB on the findings of the Arbitrator and his application of law to the facts found may be summarised as follows: 1. ABF was under an implied obligation to issue instructions within a reasonable time to enable WSB to meet its 51 obligations under the contract and that a failure to do so will expose ABF to a claim in damages by WSB. Reference was made to the passages in Duncan Wallace's QC Hudson's Building and Engineering Contract 11th Ed at pp 100 and 309; 2. The failure of Protek to issue instructions to deal with slope failures no. 1,2 and 3, which persisted until actual completion date, renders the prolongation costs by WSB for this period operative; 3. The rock related delays overlapped with that for the delay in issuing instructions for slope failure no.1 and the delay in issuing instructions for slope failures 2 and 3 persisted until S.I. Nos. 35 and 36 omitted these works in January 2003, just before the actual completion date; 4. ABF did not rebut the fact that the instructions pertaining to the various slope failures were outstanding until S.I. Nos. 35 and 36 were issued; 5. WSB is entitled in law to losses, expenses and damages that it had suffered for the entire prolongation period from end of November 2001 right up to January 2003 pursuant to s 74 Contracts Act 1950; 52 6. WSB is entitled to prolongation costs right up to 31 January 2003 as ABF's breaches, in particular the misrepresentation as to the quantities of rock and the implied obligation to issue instructions to deal with slope failures in a reasonable time, had caused the delay events and continuing until the end; 7. WSB is entitled to complete within reasonable time or at least until the actual completion date of 31 January 2003 as these delay events affected WSB's work; 8. WSB is not bound by the purported extended deadline of 20 July 2002 as it did not take into account the prevailing circumstances at the material time and not supported by any evidence. [71] Having laid the factual findings and basis for the legal entitlement to prolongation costs, the next issue of quantum of prolongation costs is something within the pure purview and province of the learned Arbitrator. It is not for this Court to disagree with the factual basis or the application of the law and in any event, this Court does not disagree with the approach that the learned Arbitrator had taken with respect of assessing this head of damages. 53 [72] Therefore this challenge on Issue 7 by ABF under s 37 AA 2005 under the public policy ground and in particular breach of natural justice has no basis whatsoever and fails. Issue 8: Whether apart from the claim for prolongation costs, is WSB entitled to any other costs or damages? [73] The thrust of this head of challenge is not on the findings with respect to the various invoices not paid or the loss of profit from omission of works, workstation but the award of Financial Charges to the tune of RM4.6 million. This sum is based on the bank interest from the overdraft facility for this Project. [74] The submission of Mr Rajendra for WSB with respect to the learned Arbitrator's findings on Financial Charges may be summarised thus: 1. WSB had obtained a loan facility for this Project and not for some other projects and had succeeded in linking these Financial Charges to this Project; 2. WSB had explained the manner by which the overdraft facility was taken and the extent by which this was affected by the non- payment of ABF; 54 3. WSB has the right to be paid on time and it is for ABF to arrange its financial affairs such that it can make payments in due time and in accordance with the contract. 4. WSB is justified in its claim for Financial Charges as a result of delayed payment by ABF as it has incurred additional interest and financial charges on its borrowings to finance the Project and loss of interest on its Fixed Rate Deposits. [75] Mr Sanjay Mohan submitted that there was insufficient evidence of these Financial Charges other than the audited accounts (pages 476 of Award) and that the learned Arbitrator's acceptance of the CW 1 is questionable as the bank officer was not called to explain the financing nor the accountant from WSB. [76] Again this Court must resist every invitation to enter into the realm of sufficiency of evidence with respect to the Arbitrator's finding of facts here. At the end of the day ABF has failed to show how the public policy of Malaysia has been breached or that there is a breach of natural justice of the kind that would prick the conscience. Issue 9: Whether if WSB is only entitled to an extension of time to July 2002, is ABF entitled to claim for liquidated damages for the delay caused by WSB? 55 [77] Learned counsel for WSB submitted that since under Issue 3 the learned Arbitrator had ruled that WSB was not bound by the completion date of 22 July 2002 as time was at large, it follows that ABF had lost its right to any alleged liquidated damages. This ruling was made on the basis that WSB is entitled to a reasonable extension of time to complete the works by 31 January 2003. Accordingly the learned Arbitrator had held that ABF is not entitled to liquidated damages that it seeks to claim from WSB. [78] He further submitted that in any event ABF had also failed to prove its actual damage or loss as required by the Federal Court in Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy [1995] 2 CLJ 374 at p 382. [79] Clearly it has not been shown how the determination of the learned Arbitrator has breached the rules of natural justice in shocking the conscience or that it is injurious to public good that would qualify as a breach of the public policy of Malaysia. Issue 10: Whether ABF is entitled to the increased costs of completing the works? [80] The learned Arbitrator found that there is no evidence produced by ABF to support its claim and in particular that it had made the alleged 56 payment to the new contractor. ABF had also failed to show who were the personnel involved in the project, what was actually paid to the completion contractor and whether the contract was performed or whether it was varied. ABF had not offered any reason for this omission. [81] Consequently the learned Arbitrator found that ABF had failed to establish this head of claim on the balance of probabilities. Again this Court must repeat the refrain that nothing came close to shocking the conscience if there has been a breach of natural justice and it has not been shown how the breach has arisen. Nothing too has been shown as to how this finding has resulted in a breach of public policy as being injurious to public good. This final ground of challenge must also fail. [82] In the result the whole of the application to set aside the Award under s 37 AA 2005 has to be dismissed for the reasons given above. Principles - Application under s 42 AA 2005 [83] The key provisions of s 42 of the AA 2005 shall be examined for the present purposes. They are s 42(1), (1A) and (2). These provisions set out the parameters of any challenge against arbitration awards: “42 (1) Any party may refer to the High Court any question of law arising out of an award. 57 (1A) The High Court shall dismiss a reference made under subsection (1) unless the question of law substantially affects the rights of one or more of the parties. (2) A reference shall be filed within forty-two days of the publication and receipt of the award, and shall identify the question of law to be determined and state the grounds on which the reference is sought.” (emphasis added) [84] The governing principles under s 42 of the AA 2005 as distilled from the cases, have been summarised in the recent Court of Appeal decision of Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 1 CLJ 617, at p 636-637 (“Perwira Bintang”), which held as follows: “[57] On the present case-authorities, a number of propositions can be stated as guidelines. We enumerate these below, without intending them to be exhaustive, since clearly the law has to be developed further. (a) The question of law must be identified with sufficient precision (Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Sdn Bhd [2010] 5 CLJ 83; Maimunah Deraman v Majlis Perbandaran Kemaman, supra; (b) The grounds in support must also be stated on the same basis; 58 (c) The question of law must arise from the award, not the arbitration proceedings generally (Majlis Amanah Rakyat v Kausar Corporation Sdn Bhd, supra, Exceljade Sdn Bhd v Bauer (Malaysia) Sdn Bhd, supra); (d) The party referring the question of law must satisfy the court that a determination of the question of law will substantially affect his rights; (e) The question of law must be a legitimate question of law, and not a question of fact “dressed up” as a question of law (Georges SA v Trammo Gas Ltd (The Baleares) [1993] 1 Lloyd’s Rep 215); (f) The court must dismiss the reference if a determination of the question of law will not have a substantial effect on the rights of the parties (Exceljade Sdn Bhd v Bauer (Malaysia) Sdn Bhd, supra); (g) The jurisdiction under s. 42 is not to be lightly exercised, and should only be exercised only in clear and exceptional cases (Lembaga Kemajuan Ikan Malaysia v WJ Construction Sdn Bhd [2013] 8 CLJ 655); (h) Nevertheless, the court should intervene if the award is manifestly unlawful and unconscionable; (i) The arbitral tribunal remains the sole determiners of questions of fact and evidence (Gold and Resource Development (NZ) Ltd v Dough Hood Limited [2000] 3 NZLR 318); and (j) While the findings of facts and the application of legal principles by the arbitral tribunal may be wrong (in instances of findings of mixed fact and law), the court should not 59 intervene unless the decision is perverse” (emphasis added) [85] A question of law must be based on the factual findings and legal analysis in an award (see Prestige Marine Services Pte Ltd v Marubeni International Petroleum (S) Pte Ltd [2012] 1 SLR 917, at p 933). In other words the factual findings cannot be sought to be altered by a so-called question of law. [86] If the factual or legal premises on which the question of law are based cannot be found in the award, the application under s 42 would be fatally flawed. A question of law then cannot be premised on facts different from what had been found by the arbitrator. In such a situation, the questions of law would not arise out of the award as they cannot be related to the findings of fact and legal analysis in the award. [87] An aggrieved party seeking to set aside the whole or part of an award under s 42 AA 2015 must resist the tantalizing temptation to try the backdoor way of getting the Court to reverse the finding of facts of an arbitrator by asking the Court to answer so-called questions of law that are not premised on facts as found by the arbitrator. A question of law cannot be posed in a vacuum but must arise from the finding of facts of an arbitrator. 60 [88] What then would constitute a genuine question of law? The Court of Appeal in Perwira Bintang (supra) at pages 637-638, adopting the analysis of Exceljade Sdn Bhd v Bauer (Malaysia) Sdn Bhd [2013] 1 LNS 1470 (“Exceljade”), at pages 14-16, and Finelvet AG v Vinava Shipping Co Ltd, The Chrysalis [1983] 1 Lloyd’s Rep 503, at page 507 (“The Chrysalis”), held: “Mustill J. Then goes on to consider the proper test or approach to be adopted by a court determining the substantive appeal which turns on a question of law arising out of the arbitration: ... Starting therefore with the proposition that the court is concerned to decide on the hearing of the appeal whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator’s process of reasoning into three stages. (1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute. (2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached. (3) In light of the facts and the law so ascertained, the arbitrator reaches his decision. 61 In some case, stage (3) will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In some instances, however, stage (3) involves an element of judgment on the part of the arbitrator. There is no uniquely “right” answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong. Stage (2) of the process is the proper subject matter of an appeal under the Act of 1979...” ... [60] In practical terms, we are persuaded that we should be looking at stage (2) of the process of reasoning as the proper focus of the inquiry under s. 42, which will mean ascertaining not so much a clear position of the “law”, without regard to the underlying facts, but, as analysed, the arbitrator will be ascertaining the “law” as a process comprising “not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached.” Typically, this process will involve a mixed consideration of relevant statutory rules, case laws and legal principles, and an identification of the relevant facts on which to apply the “law”.” (emphasis added) 62 The First Stage – findings of facts by the arbitrator [89] The first stage has nothing to do with a question of law. The arbitrator determines the facts and his findings of facts cannot be challenged. The court is circumscribed by s 42 AA 2005 to decide any question of law arising from an award premised on the basis of a full and unqualified acceptance of the findings of fact of the learned Arbitrator. The recent decisions of the Malaysian Court in Perwira Bintang (supra) page 637 (CA) and Exceljade (supra) pages 52-53, paragraph 105 (HC) underscore this approach. [90] Learned counsel for WSB referred to the decision of the English Court of Appeal in Georges SA v Trammo Gas Ltd (The Baleares) [1993] 1 Lloyd’s Rep 215 (“The Baleares”), adopted by our courts in Perwira Bintang (CA) and Exceljade (HC), and quoted from pages 227-228, the instructive exposition of Lord Justice Steyn, as follows: “This is an appeal under s.1 of the Arbitration Act, 1979 on “a question of law arising from an arbitration award”. For those concerned in this case that is a statement of the obvious. But it matters. It defines the limits of the jurisdiction of the Court hearing an appeal under the 1979 Act. The arbitrators are the masters of facts. On an appeal the Court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the Court considers those findings of fact 63 to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the Courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a Court ought never to question the arbitrators’ findings of facts”. ... ... This catalogue of challenges to arbitrators’ findings of fact points to the need for the Court to be constantly vigilant to ensure that attempts to question or qualify the arbitrators’ findings of fact, or to dress up questions of fact as questions of law, are carefully identified and firmly discouraged. It is a matter for consideration whether objectively the present case involves yet another challenge to the arbitrators’ findings of fact despite Counsel’s disavowal of such intention.” (emphasis added) [91] It is axiomatic to note that the Court of Appeal in The Baleares, at p. 232, had this to say on arguments that there is no evidence to support a finding of fact of the arbitrator: “If leave is given on one discrete point of law, it will then be possible also to argue that there is no evidence to support a finding of fact thereby compelling the Court to review the relevant and weight of the evidence before the arbitrators. The power to 64 review a finding of fact of a tribunal on the ground that there is no evidence to support it, and that there is therefore an error of law, is a useful one in certain areas of the law, notably in the administrative law field. But in the limitation appellate jurisdiction of the Court under s. 1 of the Arbitration Act, 1979 this concept has no useful role to play...” (emphasis added) The Second Stage – ascertaining the law [92] Learned counsel for WSB submitted that the second stage of the arbitrator’s reasoning process involves determining the material law, interpreting the contractual documents that are the subject matter of the arbitral proceedings, identifying the relevant facts that should be considered in the arbitrator’s legal analysis. [93] Learned counsel further explained that it is this stage of reasoning that a question of law for the purposes of s. 42 of the AA 2005 may arise. In this respect, there are two possible scenarios where an error of law may arise, as described below: (a) The arbitrator could have erred by setting out an erroneous view of the law in its reasons. The arbitrator’s finding of the law would then clearly be reviewable as a question of law (see Mustill & Boyd “The Law and Practice of Commercial Arbitration in England” (2nd Ed) – at p. 591-592). 65 (b) The arbitrator could have erred when marrying the law to the facts. An error here can only arise if the tribunal’s conclusion based on the law and the facts do not fall within an acceptable range of decisions that a reasonable tribunal could reach (see Mustill & Boyd “The Law and Practice of Commercial Arbitration in england” (2nd Ed) – at pg. 593-594). The Third Stage – Reaching The Decision [94] The third stage of the arbitrator’s reasoning process involves making a determination/decision based on its reasoning process during the second stage. If the arbitrator has gone wrong in the second stage, its determination in the third stage would almost certainly be wrong. However, it is important to emphasise that in many cases the reasoning process in the second stage can yield more than one correct answer, as recognised by Mustill J. In The Chrysalis, p 507. If this is the case, the mere fact that an arbitrator has chosen an available answer that would not have been preferred by the court reviewing its award in order to arrive at its determination in the third stage will not be a reason justifying judicial interference (see also Perwira Bintang, page 638, Exceljade, pages 27-28, paragraph 40) [95] Learned counsel for WSB also referred to the decision Justice Mary Lim J. (now JCA) of MMC Engineering Group Berhad & Anor v 66 Wayss & Freytag (Malaysia) Sdn Bhd [2015] 10 MLJ 689 where Her Ladyship has also held, at pages 16-17, that: “[32] ... the questions of law now identified for determination of this Court cannot be the same or be re-hatched questions that the parties had already referred to arbitration in the first place. This is apparent from a reading of subsection 42(2) which is couched in mandatory language requiring the applicant or the Plaintiffs to identify the question of law “to be determined”, that is, to be determined by the Court in the present proceedings. This is regardless of the Court’s powers to inter alia remit the award in whole or in part, together with the Court’s determination on the question of law to the arbitral tribunal for reconsideration. I do not believe the question of law can include the specific question that was posed for determination by the arbitral tribunal in the first instance. In that scenario, the question, albeit a question of law, remains one which the Court ought not to intervene and determine. The views expressed in Sharikat Pemborong Pertanian & Perumahan v Federal Land Development Authority [1971] 2 MLJ 210 and The Government of India v Cairns Energy India Pty Ltd & Anor [2011] 6 MLJ 441 remain good law in this respect.” (emphasis added) [96] See also: FR Absalom Limited v Great Western (London) Garden Village Society [1993] AC 592, page 602 and Government of Kelantan v Duff Company Limited [1923] AC 395, at page 409). 67 [97] Learned counsel for WSB also referred to the decision of Jackson J in Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] EWHC 727, (“Kershaw”), which was adopted by Exceljade, pages 20 and 22, as raising additional factors which ought to be considered by the Court in applying s 42 AA 2005 in the present case: (a) Firstly, for the purposes of reviewing any question of law referred to the court, the key documents that should be looked at are the award and any other documents referred to in the award which the court needs to read in order to determining a question of law; (b) Secondly, the court should read the arbitral award as a whole in a fair and reasonable way. The court should not engage in minute textual analysis; and (c) Thirdly, where the arbitrator’s experience assists him in determining a question of law, such as the interpretation of contractual documents or correspondence passing between members of his own trade or industry, the court will accord some deference to the arbitrator’s decision on that question. [98] It cannot be over-emphasised that in an application pursuant to s 42 of the AA 2005, the applicant must proceed with an unqualified acceptance of the findings of facts of the learned Arbitrator. It is settled 68 law that the court will not disturb the same as the arbitrator remains the master of the facts (Perwira Bintang, page 637, Exceljade, page 52- 53 and The Balearas, pages 227-228). Question A “Where a construction contract includes a provisional sum item whether the contractor can claim an extension of time if it carries out these provisional sum works? [99] ABF contended that the learned Arbitrator had erred in law by concluding that WSB is entitled to extension of time on the following grounds: (a) ABF premised its argument on the contract which provides for a provisional quantity of 25,000 m3 of hard rock and WSB would have to complete these works within the agreed contract period and WSB is not entitled to extension of time. In other words, the excavation of hard rock forms part of WSB’s original scope of works, and cannot be considered as a variation to the original scope of works. (b) WSB had agreed to carry out and complete the earthworks (including the excavation of hard rock) within 4 months. There was no change to their work program after being allegedly informed by ABF that the amount of earthwork on site was negligible. 69 (c) WSB would not be contractually entitled to an extension of time and it was a result of its own delays. [100] Learned counsel for WSB submitted that this Court ought not to disturb the findings of facts by the learned Arbitrator as the Arbitrator remains the master of the facts. In any event, WSB's submission is that the Learned Arbitrator’s findings are supported by overwhelming evidence. [101] In response to ABF’s contention that the learned Arbitrator had erred in law, thereby warranting the intervention of this Court, WSB proceeded to analyse the Final Award in accordance with the 3-stage analysis as laid down by Mustill J in The Chrysalis, page 507 and adopted by our Malaysian courts in Perwira Bintang, pages 637-638 (CA) and Exceljade, pages 14-16 (HC) and is reproduced below: The First Stage – The learned Arbitrator’s findings of facts The learned Arbitrator made the following findings of facts. Provisional Sum is outside the contract: (a) The contract between the parties is a fixed non escalating lump sum. However, the parties do not dispute that the total sum tendered for the project was for RM9,614,898.18 70 (A+B+C+D+E+F). WSB had only accepted the risks which it had priced and contracted for. (b) The learned Arbitrator found that the provisional sum for rock is clearly outside the total sum tendered for the project, on a plain reading of the Commercial Proposal. WSB had quoted a separate sum of RM2,000,000.00 as provisional sum for hardrock excavation in the event that hard rock is encountered during the performance excavation works at a unit of RM80.00/m3. It is this fact that differentiates the present contract from the traditional lump sum contract where the provisional sum will be included in the computation of the lump sum contract itself. (c) The learned Arbitrator further found that the sum of RM2,000,000.00 as provisional sum for rock excavation was not priced. As such, it was not included in the original contract sum. Earthwoks do not include excavation of rock (d) Additionally, the learned Arbitrator found as a fact that ABF’s suggestion that earthworks included excavation of rocks is not correct as ABF by its own admission, through 71 documentary and oral evidence, had recognised and/or conceded that rock excavation as a variation to the contract. WSB had not assumed the risk of rock excavation (e) The learned Arbitrator found that Clause 8.2.15 of the ITB obliges WSB to inform ABF should hard rock be encountered. It can be inferred from this that hard rock was never envisaged as part of WSB’s works in the first place. (f) The learned Arbitrator disagreed that WSB had assumed the risk of rock excavation because of Clause 8.2.15 of the ITB. The Learned Arbitrator found that the Clause just provides for the mechanism to determine the volume of hard rock should such a situation be encountered. WSB had planned its work programme premised upon a rock free environment (g) WSB had not assumed the risk of rock excavation because there was no change to its work programme. ABF had informed that there was negligible amount of rock. WSB had planned its work programme premised upon a rock free environment. 72 (h) The learned Arbitrator found as a matter of fact that the original 4 months programmed for earthworks as discussed in the Kick-Off Meeting dated 8 November 2000 and the Construction Progress Meeting No. 1 held on 20 November 2000 was based on rock free environment. It was clear to the learned Arbitrator that WSB’s original work programme (which did not include rock excavation) was submitted as part of the tender documents as the tendered sum did not include rock excavation. The Second Stage argument of WSB is as follows: The Second Stage – Ascertaining the Law Having made the above findings of facts, the learned Arbitrator ascertained the law relating to provisional sum: (a) In this respect, the Learned Arbitrator had correctly recognised that May L.J. in Midland Expressway Ltd v Carillion Construction Ltd & Others [2006] Con LR 235, at page 236 (CA) (“Midland Expressway”) held that for the works to be “truly provisional” as envisaged in construction contracts, the “provisional sum” is used in the pricing mechanism to refer to work which is truly provisional and it 73 must be included mathematically in the original contract price. May L.J. in Midland Expressway held: “The term ‘provisional sum’ is generally well understood in the construction industry. It is used in pricing construction contracts to refer either to work which is truly provisional, in the sense that it may or may not be carried out at all, or to work whose content is undefined, so that the parties decide not to try to price it accurately when they enter into their contract. A provisional sum is usually included as a round figure guess. It is included mathematically in the original contract price but the parties do not expect the initial round figure to be paid without adjustment. The contract usually provides expressly how it is to be dealt with. A common clause in substance provides for the provisional sum to be omitted and an appropriate valuation of the work actually carried out to be substituted for it. In the general sense, the term ‘provisional sum’ is close to a term of art but its precise meaning and effect depends on the terms of the individual contracts.” 74 (b) In essence, a true provisional sum is that which must be included mathematically in the original contract sum. Whilst the quantities of the rock excavation may be unknown at the time of entering into the contract, the make-up of the cost must be such that the Contract Price must be capable of adjustment. (c) This is because a true ‘provisional sum’ (meaning a provisional price) is used as a temporary ‘placeholder’ for an element of the work that is not finally decided upon or priced at the time of signing the contract. Once the item has been finalised, the actual sum is put into the contract price in the place of the provisional sum. (d) This exercise is carried out at final account stage, where the provisional sum is deducted from the contract sum and adds back the true value of the work into the contract sum. In other words, where provisional sums are expended, the Contract Price shall be adjusted accordingly. (e) In the instant case, it is not possible to adjust the Contract Price of RM9,614,898.15 as the RM2 million for the so-called 75 provisional sum was not included mathematically in the Contract Price. (f) This is the crucial found by the Learned Arbitrator which distinguishes this case from the general case envisaged by Question A: “Where a construction contract includes a provisional sum item whether the contractor can claim an extension of time if it carries out these provisional sum works?” (g) It therefore renders the answer to this general question academic as it is not applicable to the particular facts of this case. [102] Learned counsel for WSB wrapped up the 3-stage analysis as follows: Third stage – The learned Arbitrator’s Determination In light of the learned Arbitrator’s correct legal analysis that a true provisional sum is that which must be included mathematically in the original contract sum and the finding of fact made by the learned Arbitrator that in this case it was not, the learned Arbitrator correctly found and held that given the contract provides for a provisional sum for rock excavation of 25,000 m3 which was not 76 included mathematically in the Contract Sum, WSB is entitled to extension of time for rock excavation as a result of the discovery of rock. It is respectfully submitted that the learned Arbitrator’s finding is not wrong; it is reinforced by the fact the ABF had recognised rock excavation as a variation order. This is clearly an admission that this work was outside the original scope of contract. ABF is now estopped from claiming that rock excavation is within WSB’s obligation under the contract. Does Question A qualify as a “question of law” for the purposes of s. 42 AA 2005 in the light of the above analysis? [103] I cannot agree more with learned counsel for WSB that the law requires the Court to proceed on the basis of full and unqualified acceptance of the findings of facts of the learned Arbitrator in determining an application of s. 42 of the AA 2005 (see The Baleares, page 228, Exceljade, pages 52-53 and Perwira Bintang, page 637). [104] Learned counsel for WSB impressed upon this Court to exercise caution and discernment following the advice of the English Court of Appeal in The Baleares, page 228, (adopted by Exceljade and Perwira Bintang) which held: 77 “On an appeal the Court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the Court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the Courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a Court ought never to question the arbitrator’s findings of facts”. ... ... This catalogue of challenges to arbitrators’ findings of fact points to the need for the Court to be constantly vigilant to ensure that attempts to question of fact as questions of law, are carefully identified and firmly discouraged. It is a matter for consideration whether objectively the present case involves yet another challenge to the arbitrators’ findings of fact despite Counsel’s disavowal of such intention.” (emphasis added) [105] I agree that there can only be one conclusion by applying the 3- stage test as laid down in The Chrysalis, page 507, Question A posed by ABF is clearly not a question of law justifying the intervention of this Court pursuant to section 42 AA. Whilst it is a question of law, it is not a question of law that is applicable on the particular set of facts as found 78 by the learned Arbitrator. As submitted above, this is an attempt to review the findings of fact made by the learned Arbitrator; a backdoor way to prevail upon this Court to disturb the findings of facts of the Arbitrator under the guise of a need to answer the question of law wrongly answered by the Arbitrator, thus yielding a wrong result. [106] I agree that this is not the purpose of a section 42 AA 2005 application and this Court should not entertain it (see The Baleares, page 228, Perwira Bintang, page 637 and Exceljade, pages 52-53). [107] Learned counsel for ABF had sought to challenge the findings of facts of the learned Arbitrator by seeking to distinguish between the words ‘provisional sum’ and ‘provisional quantity’. I agree with WSB that the distinction is irrelevant for the following reasons: (a) Firstly, the term used in the contract is “Provisional Sum”. (b) Secondly, the learned Arbitrator used both terms interchangeably. (c) Thirdly, whatever the term may be used it does not change the fact that the provisional sum or provisional quantity in the present contract is expressly provided to be outside the contract as opposed to the usual traditional lump sum contracts where the provisional sum is included in the computation of the lump sum itself. This is a finding of fact of the learned Arbitrator which cannot 79 be challenged by ABF now. This is supported in law where the decision of Midland Expressway, at page 236, held that a provisional sum is included mathematically in the contract sum. [108] Further Question A is a specific question that was posed to the learned Arbitrator and the learned Arbitrator’s determination of the specific question is final in line with the Absalom exception endorsed in Chain Cycle Sdn Bhd v Kerajaan Malaysia [2016] 1 CLJ 218 para 32, deriving its name from the House of Lords' case of FR Absalom Limited v Great Western (London) Garden Village Society [1933] AC 592, page 602. The Absalom exception precludes a party from challenging an arbitrator's decision on a matter specifically referred to him for decision as in a specific question of law referred for his decision. In Chain Cycle's case it was held that this exception should be preserved in a reference under s 42 AA 2005 so as to ensure that the reference is not transformed into a wholesale appeal against the arbitrator's decision. [109] Unless the Final Award is tainted with illegality, ABF cannot now refer the same question for this Court’s decision (see the decision of MMC Engineering Group Berhad & Anor v Wayss & Freytag (Malaysia) Sdn Bhd [2015] 10 MLJ 689; Sharikat Pemborong Pertanian & Perumahan v Federal Land Development Authority 80 [1971] 2 MLJ 210, page 211 and The Government of India v Cairns Energy India Pty Ltd & Anor [2011] 6 MLJ 441, pages 459-460). [110] Learned counsel for WSB invited this Court to do a plain comparison of Question A posed here and Issue 1 submitted in the arbitration: Question A “Where a construction contract includes a provisional sum item whether the contractor can claim an extension of time if it carries out these provisional sum works?” Issue No. 1 “Whether given that the contract provides a provisional sum for rock excavation of 25,000 m3, the Claimant (WSB) is entitled to an extension of time as a result of the discovery of rock?” [111] The similarity, shorn of its cosmetic differences, between Question A and Issue No. 1 could not have been more striking. They are essentially the same question, from a plain reading of the above comparison. The subtle difference introduced to suggest a substantially different question posed does not detract from the fact that Question A is one and the same with Issue 1 that had already been decided by the Arbitrator. 81 [112] Basically the dispute in respect of Question A and Issue No. 1 centres on the interpretation of Item AA of Price Schedule A, Section C of the ITB. The learned Arbitrator, at the very outset in determining the issue, acknowledged that the parties are at variance as to the interpretation of this provision. Merely because the learned Arbitrator had not favoured ABF’s interpretation of the provision relating to the provisional sum is not a ground for challenge. The dicta of the Federal Court in The Government of India v Cairns Energy India Pty Ltd & Anor [2011] 6 MLJ 441 at page 462 speaks loudly here: “We note that the arbitrators were faced with a question on the construction of a clause in an agreement. From the reading of it, no doubt it could be given two interpretations – one in favour of the appellant and one in favour of the respondents. For that very reason, the matter was sent for arbitration. The fact that the learned majority arbitrators took one approach in interpretation (which was in favour of the respondents) over the other cannot be a ground for challenge.” (emphasis added) [113] By reason that Issue No. 1 has already been specifically posed and determined by the learned Arbitrator, the decision of the learned Arbitrator ought to be respected and no interference is possible upon the ground that the decision upon the question of law is an erroneous one. 82 [114] In this regard, the oft-repeated analogy by Scrutton LJ in African & Eastern (Malaya) Ltd v White, Palmer & Co Ltd [1930] 36 LI L REP 113, which was adopted by our Federal Court in The Government of India v Cairns Energy India Pty Ltd & Anor [2011] 6 MLJ 441 at page 462 should resonate and rest with the parties: “... if you refer a matter expressly to the arbitrator and he makes an error of law you must take the consequences; you have gone to an arbitrator and if the arbitrator whom you choose makes a mistake in law that is your look out for choosing the wrong arbitrator: if you choose to go to Caesar you must take Caesar’s judgment ...” (emphasis added) Question B : Whether as a matter of law if the contract requires a party to inspect the site, can it derogate from its responsibilities by relying on the alleged representations made by other party? [115] WSB submitted that the provisions in the Contract that are alluded to in Question B relate to Clause 4.1 of ITB and Clause 3.10 of Specific Conditions of Contract which provide as follows: Clause 4.1 of the ITB “Tenderer shall be deemed to have fully understood the requirements of the WORK, and if necessary, tenderer shall visit, inspect and examine the worksite and its surroundings and shall satisfy himself fully before submitting his tender as to the form and nature of the WORK, materials, equipment and services necessary for the completion of the WORK and in general, shall himself 83 obtain all the necessary information as to the risks, contingencies and other circumstances which may affect his tender.” Clause 3.10 of the Specific Conditions of Contract (Gathering Data and Information) “CONTRACTOR shall be responsible to gather all data and information necessary to perform the WORK including but not limited to character of the WORK, location and SITE conditions, industry practice, laws and regulations, etc. Any information or document given or forwarded by ABF to CONTRACTOR shall not relieve CONTRACTOR of its obligations under the provisions of this CONTRACT. ABF gives no warranty for the information or document either as to the accuracy or sufficiency or as to how the same should be interpreted or otherwise, and CONTRACTOR shall make use of and interpret the same entirely on his own risk.” [116] Reliance was placed on the case of Morrison Knudsen International v Commonwealth of Australia [1972] 13 BLR 114 (“Morrison Knudsen”), where the High Court of Australia held that the contractors were entitled to rely on certain site information provided by the Employer at the time of tender despite the express disclaimer of liability. Barwick C.J. held at pages 120 and 121 that: “First, Cl. 3(1) of the general conditions “The Contractor shall be deemed ... ... to have informed himself as to the site and local conditions...” I do not read these words as limiting the “information” to that which the contractor has discovered by his own independent endeavours. In my opinion, he will relevantly 84 informed himself by acceptance of the basic information conveyed by the defendant. These words, in my opinion, do not afford an answer to the plaintiff’s claim. ... The defendant sought to protect itself against responsibility for any interpretation or conclusion drawn in regard to site conditions based on the information thus conveyed. To my mind the very form of this reservation suggests a recognition that the basic information is likely if not, indeed expected to be accepted for what it is ... ... The basic information in the site information document appears to have been the result of much highly technical effort ... ... It was information which the [contractors] had neither the time nor the opportunity to obtain for themselves. It might even be doubted whether they could be expected to obtain it by their own efforts as a potential or actual bidder.” [117] Further in the same decision of Morrison Knudsen, Gibbs J. observed at page 123 that: “In all the circumstances including particularly the shortness of the time available to the contractors for the submission of a tender the contractors had to the knowledge of the defendant no opportunity of conducting any or any adequate investigation into the nature of the soils at the site of the works and in particular the contractors had to the knowledge of the defendant had no opportunity of conducting investigations comparable in scope or extent with the investigations the subject of the site information. 85 The contractors, as the defendant knew or ought reasonably to have known, were in relation to information as the soils at Tullamarine relying upon the defendant to supply accurate information and as the defendant further well knew were intending to and did in fact rely upon the information supplied in the site information as a basis for the preparation by the contractors of Żestimate and tender for carrying out the works. It was reasonable in all the circumstances...for the contractors to accept and act upon the information contained in the site information.” (emphasis added) [118] The learned Arbitrator found as a matter of fact that the tender period was too short for WSB to carry out any meaningful soil investigation. It was not feasible or practical for all five tenderers be required to carry out soil investigations on the same locations on site. In practice this was not done. This Court agrees that the finding alone would be sufficient to answer Question B in the affirmative, and therefore in favour of WSB. Although couched as a question of law, it must be answered together with an appreciation of the associated facts as found by the learned Arbitrator. Provisions in a contract requiring a contractor to inspect the site and making the necessary investigations as a means to absolve the employer from liability for reliance on any information given to the Contractor can only be relied upon where the Contractor has been given reasonable time to make the necessary investigations 86 before putting its tender, which is a matter of fact (see Morrison Knudsen, pages 120, 121 and 123). [119] WSB furthered relied on the learned Arbitrator's findings of facts as follows: (a) ABF and/or Protek had misrepresented to WSB that the rock quantity on the Project Site was non-existent and/or negligible which amounted to a collateral warranty. This misrepresentation had induced WSB to enter into the Contract and also to commit itself to the original work programme of 12 months which was based upon a rock free environment. (b) WSB had discharged its obligations pursuant to Clause 4.1 of ITB and Clause 3.10 of Specific Conditions by requesting for the Soil Investigation Report from Wong King Ping. (c) There was no reason why WSB should not rely on this Soil Investigation Report provided by Wong King Ping especially when the boreholes were within the vicinity of the construction site and 2 of them were located within 10 or 20m from the existing BUS. (d) In any event ABF had waived its right to rely on the tender requirements which require WSB to assess the site conditions in light of the collateral warranty given by ABF and/or Protek. 87 [120] In the alternative, I agree with WSB's submission that it is trite law that the fact that statements are made in a pre-contractual relationship does not preclude the person to whom the statements are made from relying on the duty of care in the making of the statements by the person who is making them (see Esso Petroleum Co Ltd v Mardon [1975] 1 QB 819). At the same time, it is also settled that a representation made in the course of dealings for a contract for the very purpose of inducing the other party to act on it, may give rise to a collateral warranty (see Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788) [121] Having regard to the particular set of facts as found by the learned Arbitrator and the position of law as submitted above, the learned Arbitrator had held that ABF had misrepresented and/or breached its collateral warranty to WSB as to the amount of rocks on site, notwithstanding Clause 4.1 of ITB and Clause 3.10 of Specific Conditions. There is no error of law as suggested by ABF in the present application. [122] This is clearly not an appropriate case for this Court to exercise its discretion to intervene pursuant to s. 42 of the AA 2005. ABF may be unhappy with such a finding of the Arbitrator but they must have realized 88 that they had agreed that his decision on facts are final and the Award is not subject to appeal. The limited grounds for setting aside or a reference of a question of law must not be transformed into a full blown appeal under the guise of correcting a wrong decision and so meeting the ends of justice. [123] In this respect, this Court agrees with WSB that the Final Award still stands by reason that a misrepresentation and/or breach of collateral contract operates outside and/or separate and/or independent of the Contract between the parties. Hence, it is not caught by Clause 4.1 of ITB and Clause 3.10 of Specific Conditions. Such a finding is not in conflict with any principle of law and is in fact an exception to the parol evidence rule. In Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 2 MLJ 16, the Federal Court, held at page 18 (per Raja Azlan Shah CJ) as follows: “Although it is trite law that parol evidence is not admissible to add to, vary or contradict a written agreement, a technical way of overcoming the rule is by invoking the doctrine of collateral contract or collateral warranty. Chitty on Contracts (24th ed) (paragraph 673) put it this way: “An assurance given in the course of negotiation may therefore give rise to a contractual obligation, provided that an intention to be bound can be shown. The rules of evidence, however, frequently prevent such an assurance from being incorporated 89 as part of a subsequent written agreement, since extrinsic evidence is as a general rule not admissible to vary, or add to the terms of a written contract. As a result, the courts have been prepared in some circumstances to treat the assurance as a separate contract, collateral to the main transaction. In particular, they will do so where one party refuses to enter into the contract unless the other gives him an assurance on a certain point.” In our view there is a growing body of authority which supports the proposition that a collateral agreement can exist side by side with the main agreement which it contradicts ... It is collateral to the main contract, but each has an independent existence, and they do not differ in respect of their possessing to the full the character and status of a contract ... We think Lord Denning MR summarised it in Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd: “Looking at the cases once more, as we have done so often, it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act on it, and it actually induces him to act on it by entering into the contract, that is prima facie ground for inferring that the representation was intended as a warranty. It is not necessary to speak of it as being collateral. Suffice that the representation was intended to be acted on and was in fact acted on.” (emphasis added) [124] See also Hartela Contractors Ltd v Hartecon J Sdn Bhd & Anor [1999] 2 CLJ 788, at pages 798-799, per Gopal Sri Ram JCA (as he then was). At all material times, ABF itself had recognised that rock 90 excavation is a variation order. This was found as a fact by the Arbitrator. With a variation order, this has time and cost implications. Article 2.2 (b) of the Conditions of Contract inter alia provides: “On receipt of any written notice requiring the variation in the Work which may, in the opinion of CONTRACTOR, involve a variation in the CONTRACT PRICE or the COMPLETION DATE, CONTRACTOR shall, before proceeding with the WORK, advise ABF to that effect by submitting Variation Proposal. If in the opinion of ABF that the submissions contained in the Variation Proposal are correct, ABF will issue a VARIATION ORDER to CONTRACTOR which shall contain details of the change and the resulting changes to the CONTRACT PRICE and COMPLETION DATE. Such VARIATION ORDER shall be deemed to form part of the CONTRACT.” (emphasis added) [125] The learned Arbitrator had found that the excavation of hard rocks and the failure of ABF to issue remedial instructions to deal with the slope failures are events entitling WSB to additional time and costs. Therefore WSB is entitled to time and cost until the occurrence of the slope failures (which the Arbitrator found to be the operative act of prevention until the very end). Consequently, the fact that WSB is entitled to time and cost will remain regardless of whether Question 2 or the issue of entire agreement is answered in favour of ABF. This Court further agreed that the application ought to be dismissed by reason of 91 the failure to comply with s. 42(1A) AA 2005 on how the question of law substantially affects the rights of one or more of the parties. [126] Learned counsel Mr Sanjay Mohan also tried to prevail upon the Court that there can be no finding of a misrepresentation in the face of an "entire agreement" clause and as such the finding of fact is perverse. However that was not the question of law that was specifically posed for the Court to intervene and new questions of law should not be allowed to be rehatched or for that matter, rehashed! [127] In any event, as a matter of law, an entire agreement clause does not preclude the liability for misrepresentation as was clarified in Inntrepreneur Pub Co v East Crown Ltd [2000] 2 Lloyds Rep 611 at page 614, where Lightman J. held: “An entire agreement clause does not preclude a claim for misrepresentation, for the denial of contractual force to a statement cannot affect the status of a statement as a misrepresentation.” (emphasis added) [128] Further, it is settled law that an oral representation which is in conflict with the printed terms of the contract must be given an overriding effect over the terms of the Contract (Tan Chong & Sons Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220 (FC) at page 230). 92 [129] Even if one were to follow the test endorsed by the Court of Appeal in SDA Architects (sued as a firm) v Metro Millennium Sdn Bhd [2014] 2 MLJ 627 which held that the error of law on the face of the award should still be adopted, the result would still be the same. Her Ladyship, Aziah Ali JCA expressed thus at page 648 as follows: “[37] The next issue to be considered is whether on the face of the award there is an error of law committed by the arbitrator as contended by the respondent.... ... [39] ... I find that on the face of the award there is no ground to support the respondent’s contention that the arbitrator has committed an error of law.....” (emphasis added) [130] At paragraph 51 of SDA Architects, Hamid Sultan JCA further held that “the error of law on the face of the award must be one that is patent and obvious as to render the award manifestly unlawful and unconscionable to subsist…” (emphasis added), thereby justifying it to be set aside. This Court finds that nothing close to that has been shown in the case here. [131] Having held that for this so-called question of law, it has not been shown that it is a question of law arising out of the award which question of law must necessarily arise from the substratum of facts as established by the learned Arbitrator, there is then no necessity to consider the next 93 requirement which is whether the question posed will substantially affect the parties' rights. [132] The suggestion that there are no damages for innocent misrepresentation does not answer the case of breach of collateral warranty on the same facts (see Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788, at pages 798-799, per Gopal Sri Ram JCA adopting Lord Denning’s decision in Esso Petroleum Co Ltd v Mardon [1976] QB 801). [133] This Court is more than satisfied that the application to set aside the Award under s 42 AA 2005 based on Question B must fail. Question C: Whether pursuant to the Arbitration Act 1952, the arbitrator is correct in law to grant the Respondent pre-award interest amounting to RM10,975,407.39? Question D: Whether if the Arbitration Act 1952 is silent on the issue of the granting of pre-award interest, does the arbitrator has the powers to grant pre-award interest? [134] As the issues posed in Question C and Question D are inextricably linked to each other, both Questions shall be considered together. Whilst the initial stand taken by learned counsel for ABF, Mr Sanjay 94 Mohan, was that the AA 1952 applies as the arbitration was commenced before the coming into force of the AA 2005, he had sought to argue subsequently that it is the AA 2005 that was applicable to the Award in spite of the fact that the questions posed were based on the AA 1952. That would be tantamount to shifting the goal post and in any event there is more than cogent argument that an arbitration that had been commenced under the AA 1952 continues under the same Act irrespective of the fact that a subsequent AA 2005 had subsequently come into force during the continuation of the arbitration leading to the handing down of the Award. [135] In any event, the submissions by ABF that the applicable Act is the AA 2005 in respect of the granting of interest is misconceived and plainly wrong. Section 51(2) AA 2005 provides: “Where the arbitral proceedings were commenced before the coming into operation of this Act, the law governing the arbitration agreement and the arbitral proceedings shall be the law which would have applied as if this Act had not been enacted”. (emphasis added) [136] That law is the AA 1952. No amount of legal gymnastics could alter the plain reading of the clear provision of s 51(2) AA 2005 with respect to the fact that the AA 1952 continues to apply to an arbitration 95 commenced under the AA 1952 though subsequently the AA 2005 had come into force. [137] The Court of Appeal's decision in Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang (Civil Appeal No: W-02 (NCC) (A)-2672-12/2013) ("Far East") has no relevance to the present application as the decision in Far East concerns the interpretation of the arbitral tribunal’s power to grant pre-award interest under s. 33(6) of the AA 2005 whereas the relevant provision here is s. 21 of the AA 1952. This is a key distinguishing factor between the present case and Far East where the Court of Appeal in answer to a question posed in an appeal from a s 42 AA 2005 reference, had held that an Arbitrator has no power to grant pre-award interest under s 33(6) AA 2005 [138] S 21 of the AA 1952 provides: “Interest on awards A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award at the same rate as a judgment debt.” (emphasis added) [139] The fact that an Arbitrator has the power to grant pre-award interest under the AA 1952 has been firmly established by a series of 96 consistent cases as follows: Leong Kum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710, Lian Hup Manufacturing Co Sdn Bhd v Unitata Berhad [1994] 2 MLJ 51, Raja Lope & Tan Co v Malayan Flour Mills Bhd [2000] 6 MLJ 228 and Shamelin Holdings Sdn Bhd v Mohd Anhar bin Ahmar (trading as ABA Architect) [2006] 6 MLJ 135. [140] It needs to be appreciated that an Arbitrator’s power to grant pre- award interest is derived from contract, i.e. the submission of the dispute by the parties to the arbitrator (which impliedly gave the arbitrator the same powers as if the dispute is heard in court), and not from the statute. The fact that this position is well settled is underscored by cases from the United Kingdom, Australia, Singapore and Malaysia as demonstrated by learned counsel Mr Rajendra Navaratnam, for WSB. Clearly the contention that the AA 1952 is silent on pre-award interest holds no water. [141] The U.K. position is exemplified by the case of Chandris v Isbrandtsen Moller Co Inc [1950] All ER 618 (“Chandris”), at page 623, where Tucker L.J held as follows: “I cannot see why any distinction should be drawn between the duty of an arbitrator to give effect to such statutes as the Statute of Limitations and his jurisdiction in his discretion to award interest. 97 An award of interest is only a part of the damages recoverable, and, adapting to the facts of this case the language of LORD SALVESEN in the case to which I have just referred – language which was approved by LORD MAUGHAM – it would read as follows: “ Although the Law Reform (Miscellaneous Provisions) Act, 1934, does not in terms apply to arbitrations, I think that in mercantile references of the kind in question it is an implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every right and discretionary remedy given to a court of law can be exercised by him.” To that there are certain well-known exceptions, such as the right to grant an injunction, which stand on a different footing. One of the reasons why an arbitrator cannot give an injunction is that he has no power to enforce it, but such an objection does not apply to an award of interest. … Counsel for the charterers argued that that judgment was based on the assumption that it was the Civil Procedure Act, 1833, which gave the arbitrator his power to award interest and that, once that Act was repealed, all such powers had gone, and, unless the arbitrator had been given fresh powers, he had none. I think, however, that the real basis of Edwards v Great Western Ry Co (2) was that the arbitrator derived his powers, not from the Act of 1833, but from the submission to him which necessarily gave him the “implied powers” referred to in the language of LORD SALVESEN which I have just quoted, and I see no reason why, since the Act of 1934, an arbitrator should not be deemed impliedly to have the same powers. Therefore, with 98 diffidence, having regard to the view expressed by the Divisional Court on this matter, I have come to the conclusion that in such a case as the present the arbitrator has power to award interest, and, accordingly, to that extent, I think this appeal should succeed and the Podar case (1) be overruled." (emphasis added) [142] Australia takes the same consistent approach. The High Court of Australia in the case of Government Insurance Office (NSW) v Atkinson-Leighton Joint Venture (1980) 31 ALR 193, observed through Justice Stephen at page 220 as follows: “The principle to be extracted from this line of authority is that, subject to such qualifications as relevant statute law may require, an arbitrator may award interest where interest would have been recoverable had the matter been determined in a court of law. What lies behind that principle is that arbitrators must determine disputes according to the law of the land… a claimant should be able to obtain from arbitrators just such rights and remedies as would have been available to him were he to sue in a court of law of appropriate jurisdiction. As Russell on Arbitration (19th ed, 1979) puts it at 356, speaking of an arbitrator’s power to award interest up to the date of his award, “it was always considered that he had power to do so, by virtue of his implied authority to follow the ordinary rules of law.” (emphasis added) 99 [143] Across the causeway In Singapore, Lai Kew Chai J in Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [1995] 1 SLR 548 (p. 556 to 557), explained as follows: “With regard to the specific exercise of awarding interest in arbitration, it is the law that generally interest should be awarded on a successful claim. An arbitrator who awards a sum of money but fails to award interest to compensate the successful claimant accordingly has prima facie misconducted himself in the technical sense of the word: Panchaud Freres SA v Pagnan and Fratelli [1974] 1 Lloyd’ at p 394. Lord Denning MR (as he then was) said: “[i]n a commercial transaction if the plaintiff has been out of his money for a period, the usual order is that the defendant should pay interest for the time for which the sum has been outstanding. No exception should be made except for a good reason. An arbitrator may decline to award any interest or award interest at a lower rate or for a shorter period but he must have reasonable grounds for doing so and he should set out these reasonable grounds in his award.” (emphasis added) [144] Back home, the Chandris reasoning was adopted in the Malaysian context in Lian Hup Manufacturing Co Sdn Bhd v Unitata Bhd [1994] 2 MLJ 51, at page 54, where it was held: “According to Chandris case, the power of an arbitrator to award interest was derived from the submission to him which impliedly gave him power to decide all matters of difference according to existing law of contract, exercising every right 100 and discretionary remedy given to a court of law. The court decided that the arbitrator had the power to award interest. In the present case, the parties have agreed in the arbitration clause in the contract … that the construction, validity and performance be governed by Malaysian law. Under s. 11 of the Civil Law Act 1956, the court has the discretionary power to award interest for the recovery of any debt or damages. See Evergrip Prestressing Sdn Bhd v Ken Construction & Trading Sdn Bhd. In my view, the arbitrator in the present case has the same power as that of the court to award interest at such rate as he thinks fit. Since it was within the discretionary power of the arbitrator to award interest in this case, the court would not interfere with the exercise of his discretionary power.” [145] The same conclusion on the power of an Arbitrator to grant pre- award interest was reached by Faiza Tamby Chik J in Raja Lope & Tan Co v Malayan Flour Mills Bhd [2000] 6 MLJ 228, p. 238-239 and Raus Sharif J (now PCA) in Shamelin Holdings Sdn Bhd v Mohd Anhar bin Ahmad (trading as ABA Architect) [2006] 6 MLJ 135, p 140-141. In Leong Kum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710 (CA), the Court of Appeal held at p. 724-725: “[32] In the first place it is well settled that an arbitrator, in the absence of a specific clause in the agreement, has power to award interest (see Lian Hup Manufacturing Co Sdn Bhd v Unitata Bhd [1994] 2 MLJ 51; Executive Engineer v DN Senapati AIR 1980 Orissa 74). In the second place, the general rule in a 101 claim for a debt (and this was a debt owed by the insurer to the appellant) is that interest must run from the date on which the debt became due and payable (see Murtadza bin Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216). In this case, it should have been from the date of the accident. Because that it when the debt accrued.” (emphasis added) [146] This Court agrees with learned counsel for WSB that the above cases were decided under the AA1952, which is the relevant Act applicable to the present case. Consequently, the Arbitrator has the power to grant the pre-award interest. [147] There was also the vague allusion by ABF that it should not be penalised because of the delay of the Arbitrator and that it has suffered a prejudice because of the interest charges from the reasonable date of completion from 31 January 2003 to date of realization. I agree with WSB that ABF had the use of the money for so long that it did not have to pay out because an award has not been delivered and accordingly the imposition of interest is not unfair. The monies not paid out of course could be reinvested in other projects and ventures by ABF whereas here it is WSB that have been kept out of the monies. The dicta of the Singapore Court of Appeal in Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 1 SLR (R) 510 (CA) at paragraph 59 that “so long as the award was not rendered the appellants had the use 102 of the money and thus the award of interest was not unjustified” would hold true here. [148] With respect to the quantum of damages under the head of Financial Charges of RM 4,631,647.37, learned counsel ABF Mr Sanjay Mohan, was heard as having argued that the learned Arbitrator's finding was not supported by evidence. Matters of sufficiency of evidence is not a permissible argument under a s 42 reference as matters of facts and hence quantum is a matter purely within the province of the Arbitrator of which he is the sole master of facts. [149] In any event this Court is satisfied that there is evidential basis to support this finding of the learned Arbitrator. The sum of RM4,631,647.37 awarded by the learned Arbitrator is derived from: (a) Overdraft Interest for year 2003 from Audited Accounts 2003, when the claims ought to have been paid – RM620,824.00 (see Page 53 of Exhibit “MHP-6”, Defendant’s Supplemental Affidavit) (b) Financial Cost arising from invoices that remains unpaid – RM 4,010,823.37. - This claim is for financial cost and loss of financial capacity arising from the unpaid invoices/claims that which was submitted to the Respondent and undisputed 103 (see Page 53(1) to 63 Exhibit “MHP-7”, Defendant’s Supplemental Affidavit). - Computation can be found at Page 21(H) and 21(K) Exhibit “MHP-5”, Defendant’s Supplemental Affidavit [150] This Court accepts as a sound proposition of law that interest may be claimed as a head of damages especially when one has been kept out of one's monies or where one has to incur charges mainly in the form of interest charged for financing. If authorities are needed one may refer to Hungerfords v Walker 84 ALR 119, where the High Court of Australia held at p 130 as follows: “30. The cost of borrowing money to replace money paid away or withheld, in consequence of the defendant’s breach of contract or negligence, is directly related to the wrong and is not too remote in the sense in which common law regarded the loss attributable to late payment of damages as being too remote. We reach this conclusion more readily, knowing that legal and economic thinking that about the remoteness of financial and economic loss have developed markedly in recent times. Likewise, opportunity cost should not be considered as being too remote when money is paid away or withheld. 31. Once it is accepted that the cost of borrowing money to replace money paid away or withheld is not too remote, it is pointless to insist on a distinction between the award of damages for loss of the use of money in the case of a liquidated claim and the award of 104 such interest in an unliquidated claim. The award of damages in accordance with Hadley v. Baxendale is unrelated to, and free from, any requirement that there is, or should be, any "wrongful" withholding of money, be it a debt or damages. 32. There can be no objection to the recovery of the cost of borrowing as consequential loss by reference to the notion that the loss is one which arises after the plaintiff's cause of action accrues or becomes complete. Such a notion is by no means an absolute bar to recovery for loss arising after that date. It was acknowledged by this Court in Johnson v. Perez (unreported, 6 December 1988) that the rule that damages for breach of contract or tort are assessed at the date of breach or when the cause of action arises is not universal. Wenham v. Ella (1972) 127 CLR 454 is a striking illustration of a plaintiff recovering loss which accrued after his cause of action became complete. There the plaintiff recovered damages for the loss of income he sustained by reason of the defendant's breach of contract for refusing to transfer income-producing land pursuant to the contract between the parties, the loss being within the contemplation of the parties: see pp 461, 463, 467, 472. In that case the Court took account of the fact that the plaintiff had paid the entire consideration payable by him as purchaser and of the fact that the defendant had had the use of the plaintiff's money. Menzies J. noted (at p 463): "In the interval between the breach and judgment, the purchaser would be out of pocket, and the vendor in pocket, by the amount of the return from the land." The significance of the decision is that by reason of the breach the plaintiff lost income after breach and damages were awarded for that head of loss. 105 Gibbs J. observed (at p 472) that it was immaterial whether the damages came within the first or second limb of Hadley v. Baxendale "or indeed whether both are applicable". There was no suggestion that the plaintiff's loss was to be attributed to the late payment of damages." [151] Likewise in Sempra Metals Ltd v Inland Revenue Commissioners and Another [2008] 1 AC 561, the House of Lords held at page 602: “100. For these reasons I consider the court has a common law jurisdiction to award interest, simple and compound, as damages on claims for non-payment of debts as well as on other claims for breach of contract and in tort.” (emphasis added) [152] However care must be taken to ensure that what is essentially damages derived from interest calculation does not on top of that carry another interest element again as that would be a charge of interest upon interest. [153] Mr Sanjay Mohan pointed out quite correctly that both the above sums which together give the Financial Charges of RM4,631,647.37 were already carrying interest up to 30 November 2006 as can be seen at at p 21(K) of Enclosure 29a which is a statement of account for RM 4,010,823.37 showing the principal and interest element (represented by 106 the debit notes) and the dates the interest was charged until 30 November 2006. [154] The learned Arbitrator had awarded interest at the rate of 8% per annum simple interest to run from 31 January 2003 which is the date the learned Arbitrator found as the reasonable time for WSB to complete the works at p 502 of the Award. [155] There is merit in ABF's submission that there should not have been interest upon interest awarded on the Financial Charges that had already had the interest element computed into it from 31 January 2003 to 30 November 2006. The charging of double interest is prohibited under s 11(a) Civil Law Act 1956 which provides as follows: "In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section - (a) shall authorize the giving of interest upon interest;" (emphasis added) 107 [156] There was therefore an error in law in awarding interest upon interest from 31 March 2003 to 30 November 2006. Interest at 8% per annum simple interest should run on the Financial Charges of RM4,631,647.37 from 1 December 2006 to 1 August 2012 and thereafter at 5% per annum simple interest until actual realization. Pronouncement [157] In a reference under s 42 on a question of law, unlike a setting aside under s 37 AA 2005, this Court is permitted to vary part of an Award as may be affected by the error of law that has been proved to have applied to the calculation of interest here. To allow double interest to be charged would be to perpetuate an injustice on ABF and would be unconscionable in the circumstances of the case as interest on the Debit Notes was already charged at 1.5% per month on all overdue accounts. This is an error of law that satisfies that requirement under s 42 AA 2005 wherein this Court would be constrained to excised the part of the award of interest affected and to leave intact the unaffected part. [158] I had therefore ordered that the interest of 8% per annum simple interest on the Financial Charges be varied such that interest at 8% per annum simple interest should only run on the Financial Charges of RM4,631,647.37 from 1 December 2006 to 1 August 2012 and 108 thereafter at 5% per annum simple interest until actual realization and not from 31 March 2003. I also allowed costs of RM10,000.00 to ABF. [159] To recapitulate, I had earlier dismissed ABF's application to set aside the Award under the s 37 AA 2005 application and after hearing the parties on costs, I ordered costs of RM50,000.00 to be paid by ABF to WSB. Dated: 18 July 2016. sgd Y.A. TUAN LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : Sanjay Mohan and Adam Lee : (Messrs Mohanadass Partnership) For the Defendant : Rajendra Navaratnam and Mak Hon Pan (Messrs Azman, Davidson & Co.) Date of Decision : 9 May 2016.

Tika 2.6.0

BA-24NCVC-14-01/2016

PLAINTIF 1. Kok Lok Kong 2. Kok Ah Kheong DEFENDAN 1. Chow Jack Seon 2. Chow Yip Jane

15/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9f6dad11-a431-4843-9519-34233423e9b7&Inline=true

Microsoft Word - BA-24NCVC-14-01-2016 Kok Loh Kong Lwn Chow Jack Seon 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO. BA-24NCVC-14-01/2016 In the matter of sections 327 and 417 National Land Code And In the matter of a land held under Title No PM 3756, Lot 13523 Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling And In the matter of Order 7 Rules of Court 2012 And In the matter of the Court’s inherent jurisdiction BETWEEN 1. KOK LOK KONG (NRIC NO: 621123-08-5529) 2. KOK AH KHEONG (NRIC NO: 641004-08-5305) …PLAINTIFFS 2    AND 1. CHOW JACK SEON (NRIC NO: 890601-14-5887) 2. CHOW YIP JANE (NRIC NO: 911115-14-5187) ...DEFENDANTS GROUNDS OF JUDGMENT (ENCLOSURE 1 – REMOVAL OF CAVEAT) A. BACKGROUND FACTS [1] The present case before this Court is a simple application by the Plaintiffs, as registered owners of a land, for the removal of caveats wrongfully lodged by the Defendants. The Defendants have wrongfully lodged the caveat on the misconceived notion that a previous co-owner of the land, one Kok Yun Thai (“KYT”) had put the land on trust for the Defendants’ benefit. But it is altogether clear to this Court that since KYT had sold her 1/3 share of the land, and also executed a Power of Attorney assigning all her rights 1/3 share of the land to the 1st Plaintiff, KYT had become defensive over her previous share, and had continuously as well as agonizingly hindered the rights of the Plaintiffs to deal with their land. KYT had twice instigated third parties to lodge caveats on the 3    same erroneous notion of Trust, of which if KYT was confident that she had never sold or assigned her rights off, KYT would have no reason at all to instigate third parties to enter caveats to ‘protect’ her rights. If KYT was utterly sure of her proprietorship of the land, there was no reason at all for her to instigate the lodgement of caveats, simply because her rights would be under total protection of the Register and the other co-proprietors cannot deal with the land without her consent. It is this agonizing attempt in instigating the Defendants to wrongfully lodge the caveats that forms the basis of the Plaintiff’s cause of action. [2] Kok Loh Kong (“1st Plaintiff”) and Kok Ah Keong (“2nd Plaintiff”)(collectively referred to as “Plaintiffs”) are the current owners of a piece land held under Title No PM 3756, Lot 13523, Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling (“Land”). KYT although having relinquished her share of the Land to the 1st Plaintiff, had continuously failed to surrender her share of the Land to the 1st Plaintiff. Thus, at the time of this Application, the Plaintiffs as well as KYT each hold 1/3 shares of the Land. [3] It is resoundingly clear that KYT had sold off her share to the 1st Plaintiff via a Sale and Purchase Agreement dated 2.1.1990 4    (“S&P”), in which the 1st Plaintiff had already paid the full purchase price RM39,210.00. KYT in executing the S&P had admitted that the 1st Plaintiff had already paid and KYT had received a sum of RM18,275.00 and the balance purchase price of RM20,935.00 was paid to KYT’s chargor, the then Southern Finance Company Berhad (“Bank”) to discharge KYT of liability under KYT’s charge with the Bank. [4] Not only that, two years after the S&P, in solidifying the sale of her share to the 1st Plaintiff, KYT had executed a Power of Attorney dated 9.1.1992, assigning all her interest, rights, and benefits in her 1/3 share in the Land to the 1st Plaintiff. [5] However, since KYT had lawfully assigned and sold her share to the 1st Plaintiff, KYT suddenly became sorely defensive, defending a share which was no longer hers. KYT had since, instigated two wrongful lodgement of caveats on the false pretext that KYT intends to put the share (which was no longer KYT’s) on trust for the benefit of the third party. The first lodgement of caveat was done on 8.10.2009 by one, Kok Bok Tai who KYT initially intended to put the share on trust for. This caveat has since been withdrawn on 18.5.2015. 5    [6] However, succumbing to her unusual paranoia, KYT again set the same modus operandi in motion to instigate Chow Jack Seon and Chow Yip Jane (“Defendants”) to lodge a caveat on the similar bogus pretext of a trust on 13.10.2015. [7] The second lodgement of caveat had hindered the Plaintiff’s proprietorship of the Land and their rights to deal with the Land. The 2nd Plaintiff recently intended to sell his 1/3 share to one, Koh Choon, in which the 1st Plaintiff has no objection of. The 1st Plaintiff and Koh Choon had also entered into a Loan Agreement with CIMB Bank Berhad (“CIMB”) on 7.8.2015 to finance the sale of the 2nd Plaintiff’s shares having the Land put as security. However, none of this can be put into effect having the caveat being an obstacle. [8] This incessant lodgement of caveat also forms the basis of the Plaintiff’s Application in the present case B. KYT CERTAINLY HAS FULL KNOWLEDGE OF THE S&P AND THE POWER OF ATTORNEY 6    [9] The Defendants have very little to nothing at all to contend against the Plaintiffs’ Application. All that was afforded to this Court were bare assertions that both the S&P and the Power of Attorney were sham forged documents. Unsurprisingly, these bare averments came with nothing in support besides one Police Report which was lodged clearly as an afterthought. No actions have ever been taken by the Police. In fact KYT, the supposed ‘victim’ of the forgery had not even taken any action in Court for this ghastly supposed sham. It is simply impossible for this Court to find any credence in the Defendants’ contention that the Defendants and KYT was taken by ‘surprise’. In fact, it is infinitely more probable than not, given KYT’s peculiar fear and agonizing attempts to ‘protect’ her rights, that KYT clearly had full knowledge and had out of her own volition agreed to the S&P as well as the Power of Attorney. [10] And it is also pertinent to note that the Defendants here have never contested the factum that the 1st Plaintiff had paid the full purchase price for KYT’s share over the land. At the most, the bare averments only deny the S&P and the Power of Attorney, not at all against the fact of payment. Thus, it is firstly, verily odd that KYT would have received these monies, and being discharged from her 7    liability with the Bank, without knowing the underlying reasons why these monies were paid to her benefit. Clearly and surely, KYT herself entered into the S&P and executed the Power of Attorney. [11] Secondly, the Court begs to question, what was the motivation behind KYT’s instigation which had led KYT to fear losing her share that she needed to put an added gloss of protection of a third party caveat, on top of her registered proprietorship (if she so genuinely believed that she had never sold, assigned, or surrendered her rights as registered proprietor of the land). If indeed KYT genuinely have no idea at all about the sale and assignment, there was no reason at all for KYT to incur costs to prepare all the documents for a Deed of Trust and requisite documents to register a caveat on the Register just to protect her interests. If indeed KYT genuinely believed her rights as registered proprietor were never in any risk of loss, then she would have been sure that her rights and her intent to create such trust would never be defeated since she was the registered proprietor of the Land. And the fact that KYT attempted to put this added protection twice, adds more weight to the probability that KYT knows well that she no longer has rights over the Land, and that she is just 8    desperate to devise any manner whatsoever to ensure that her share of the Land is not surrendered. [12] Thus, it is this Court’s finding that indeed KYT has full knowledge of both the S&P and the Power of Attorney and that both of the S&P and Power of Attorney is never a sham or forgery. C. THE DEFENDANTS HAVE NO CAVEATABLE INTEREST [13] The absence of caveatable interest is glaring that there is no reason for this Court to go to an extremity of lengths to make its finding. [14] Just the mere fact that the S&P had already been executed between the 1st Plaintiff and KYT marks the vesting of the beneficial ownership of the Land onto the 1st Plaintiff as purchaser, while KYT as vendor only has rights to the purchase price (which the 1st have paid in full). This is the exact principle upheld by the Supreme Court in the case of Yeong Ah Chee v Lee Chong Hai & Anor and other appeals [1994] 2 MLJ 614: 9    “…it is an old and well-settled rule of equity that under a valid contract for sale of land, the beneficial ownership of the land passes to the purchaser who becomes the equitable owner, while the vendor has a right to the purchase money for which he has a lien on the land.” [15] Thus, KYT no longer has ownership over the Land at the time of the execution of KYT’s trust deed in favour of the Defendants. It legally and logically entails that the trust deed is invalid for the sheer lack of certainty of subject, being the Land itself since the Land is no longer KYT’s to pass on to the Defendants. [16] It is also time celebrated principle that a vendor, upon receipt of the full purchase price becomes a bare trustee holding the land for the benefit of the purchaser and ceases to have any beneficial interest in the land. (see Temenggong Securities Ltd & Anor v Registrar of Titles, Johore & Ors [1974] 2 MLJ 45; Yeong Ah Chee v Lee Chong Hai & Anor and other appeals [1994] 2 MLJ 614) [17] The Supreme Court in Yeong Ah Chee had held the following: 10    There was no evidence to support the finding that the transfers deeds… the other trust deeds lacked certainty of subject ie the trust property, because the beneficial ownership of the lands had already passed to the purchasers when the sale agreements were executed, the Lee brothers, as trustees under the trust deeds, could not vest the lands in themselves as trustees when, at the time of signing the trust deeds, they were not owners of the lands in law and equity” [18] Similarly in the present case, it is undisputed that the 1st Plaintiff indeed had paid the full purchase price to KYT. Thus, KYT now holds the land for the benefit of the 1st Plaintiff. It naturally entails then, that KYT no longer has any beneficial interest to hold on trust for the benefit of the Defendants. Thus, the Defendants have no beneficial interest at all in the Land. [19] Thereto, it is this Court’s finding that the Defendants do not at all have any beneficial interest over the land. It follows that the Defendants do not have any caveatable interest in the Land. 11    D. THE DEFENDANTS’ CAVEAT OUGHT TO BE REMOVED [20] The law on removal of caveat is well settled. It is first incumbent for the caveator to show that he has a caveatable interest. Only if the caveator succeeds to prove caveatable interest that the caveator then must prove that he has a serious question meriting a trial. Finally, the Court would then have to look at the balance of convenience. If the balance of convenience lies with the Applicant (in that the Applicant would suffer grave damage if the caveat is retained), then the caveat ought to be removed. (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719) [21] All of the Defendants’ defence is a non-starter in regards to all of the above requisites. The Defendants have already failed the 1st requisite to prove caveatable interest. Clearly then, there would be no serious question meriting a trial. All that was afforded by the Defendants were mere bare assertions and averments which hold no weight in Court. Similarly, the issue of balance of convenience is a non-starter. The Defendants stand to lose nothing in the 12    present Application as nothing is beneficially theirs. However, the Plaintiffs stand to lose both the land, as well as the loan facilities which were already accepted from the CIMB since the Land is in a stalemate, unable to be dealt with to be transferred to Koh Choon, or to be put as security for the loan. [22] Thus, it is this Court’s decision that the Defendants’ caveat ought to be removed. E. COURT’S DECISION [23] In view of all of the findings and deliberations above, it is this Court’s decision that the Plaintiffs have successfully proven their case. [24] It is also this Court’s decision that the Defendants have utterly failed to prove any defence to challenge the Plaintiff’s present Originating Summons. This Court hereby dismisses the Defendants’ defence. [25] Thus, this Court grants order-in-terms to the Plaintiff’s present Originating Summons. 13    [26] This Court also orders the Land Office to remove the caveat No Perserahan 3181/2015 lodged by Chow Jack Seon and Chow Yip Jane registered in the Land held under Title No PM 3756, Lot 13523, Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling on 13.10.2015. [27] Finally, this Court also orders both the Defendants to pay the Plaintiffs RM 8000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 15 Julai 2016 For the Plaintiffs - Messrs Low & Partners Loke Yuen Hong For the Defendants - Messrs Hee & Lim Hee Wai Ming

Tika 2.6.0

BA-24NCVC-14-01/2016

PLAINTIF 1. Kok Lok Kong 2. Kok Ah Kheong DEFENDAN 1. Chow Jack Seon 2. Chow Yip Jane

15/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e3b92767-25fd-48a8-94eb-113f6c88b59e&Inline=true

Microsoft Word - BA-24NCVC-14-01-2016 Kok Loh Kong Lwn Chow Jack Seon 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO. BA-24NCVC-14-01/2016 In the matter of sections 327 and 417 National Land Code And In the matter of a land held under Title No PM 3756, Lot 13523 Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling And In the matter of Order 7 Rules of Court 2012 And In the matter of the Court’s inherent jurisdiction BETWEEN 1. KOK LOK KONG (NRIC NO: 621123-08-5529) 2. KOK AH KHEONG (NRIC NO: 641004-08-5305) …PLAINTIFFS 2    AND 1. CHOW JACK SEON (NRIC NO: 890601-14-5887) 2. CHOW YIP JANE (NRIC NO: 911115-14-5187) ...DEFENDANTS GROUNDS OF JUDGMENT (ENCLOSURE 1 – REMOVAL OF CAVEAT) A. BACKGROUND FACTS [1] The present case before this Court is a simple application by the Plaintiffs, as registered owners of a land, for the removal of caveats wrongfully lodged by the Defendants. The Defendants have wrongfully lodged the caveat on the misconceived notion that a previous co-owner of the land, one Kok Yun Thai (“KYT”) had put the land on trust for the Defendants’ benefit. But it is altogether clear to this Court that since KYT had sold her 1/3 share of the land, and also executed a Power of Attorney assigning all her rights 1/3 share of the land to the 1st Plaintiff, KYT had become defensive over her previous share, and had continuously as well as agonizingly hindered the rights of the Plaintiffs to deal with their land. KYT had twice instigated third parties to lodge caveats on the 3    same erroneous notion of Trust, of which if KYT was confident that she had never sold or assigned her rights off, KYT would have no reason at all to instigate third parties to enter caveats to ‘protect’ her rights. If KYT was utterly sure of her proprietorship of the land, there was no reason at all for her to instigate the lodgement of caveats, simply because her rights would be under total protection of the Register and the other co-proprietors cannot deal with the land without her consent. It is this agonizing attempt in instigating the Defendants to wrongfully lodge the caveats that forms the basis of the Plaintiff’s cause of action. [2] Kok Loh Kong (“1st Plaintiff”) and Kok Ah Keong (“2nd Plaintiff”)(collectively referred to as “Plaintiffs”) are the current owners of a piece land held under Title No PM 3756, Lot 13523, Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling (“Land”). KYT although having relinquished her share of the Land to the 1st Plaintiff, had continuously failed to surrender her share of the Land to the 1st Plaintiff. Thus, at the time of this Application, the Plaintiffs as well as KYT each hold 1/3 shares of the Land. [3] It is resoundingly clear that KYT had sold off her share to the 1st Plaintiff via a Sale and Purchase Agreement dated 2.1.1990 4    (“S&P”), in which the 1st Plaintiff had already paid the full purchase price RM39,210.00. KYT in executing the S&P had admitted that the 1st Plaintiff had already paid and KYT had received a sum of RM18,275.00 and the balance purchase price of RM20,935.00 was paid to KYT’s chargor, the then Southern Finance Company Berhad (“Bank”) to discharge KYT of liability under KYT’s charge with the Bank. [4] Not only that, two years after the S&P, in solidifying the sale of her share to the 1st Plaintiff, KYT had executed a Power of Attorney dated 9.1.1992, assigning all her interest, rights, and benefits in her 1/3 share in the Land to the 1st Plaintiff. [5] However, since KYT had lawfully assigned and sold her share to the 1st Plaintiff, KYT suddenly became sorely defensive, defending a share which was no longer hers. KYT had since, instigated two wrongful lodgement of caveats on the false pretext that KYT intends to put the share (which was no longer KYT’s) on trust for the benefit of the third party. The first lodgement of caveat was done on 8.10.2009 by one, Kok Bok Tai who KYT initially intended to put the share on trust for. This caveat has since been withdrawn on 18.5.2015. 5    [6] However, succumbing to her unusual paranoia, KYT again set the same modus operandi in motion to instigate Chow Jack Seon and Chow Yip Jane (“Defendants”) to lodge a caveat on the similar bogus pretext of a trust on 13.10.2015. [7] The second lodgement of caveat had hindered the Plaintiff’s proprietorship of the Land and their rights to deal with the Land. The 2nd Plaintiff recently intended to sell his 1/3 share to one, Koh Choon, in which the 1st Plaintiff has no objection of. The 1st Plaintiff and Koh Choon had also entered into a Loan Agreement with CIMB Bank Berhad (“CIMB”) on 7.8.2015 to finance the sale of the 2nd Plaintiff’s shares having the Land put as security. However, none of this can be put into effect having the caveat being an obstacle. [8] This incessant lodgement of caveat also forms the basis of the Plaintiff’s Application in the present case B. KYT CERTAINLY HAS FULL KNOWLEDGE OF THE S&P AND THE POWER OF ATTORNEY 6    [9] The Defendants have very little to nothing at all to contend against the Plaintiffs’ Application. All that was afforded to this Court were bare assertions that both the S&P and the Power of Attorney were sham forged documents. Unsurprisingly, these bare averments came with nothing in support besides one Police Report which was lodged clearly as an afterthought. No actions have ever been taken by the Police. In fact KYT, the supposed ‘victim’ of the forgery had not even taken any action in Court for this ghastly supposed sham. It is simply impossible for this Court to find any credence in the Defendants’ contention that the Defendants and KYT was taken by ‘surprise’. In fact, it is infinitely more probable than not, given KYT’s peculiar fear and agonizing attempts to ‘protect’ her rights, that KYT clearly had full knowledge and had out of her own volition agreed to the S&P as well as the Power of Attorney. [10] And it is also pertinent to note that the Defendants here have never contested the factum that the 1st Plaintiff had paid the full purchase price for KYT’s share over the land. At the most, the bare averments only deny the S&P and the Power of Attorney, not at all against the fact of payment. Thus, it is firstly, verily odd that KYT would have received these monies, and being discharged from her 7    liability with the Bank, without knowing the underlying reasons why these monies were paid to her benefit. Clearly and surely, KYT herself entered into the S&P and executed the Power of Attorney. [11] Secondly, the Court begs to question, what was the motivation behind KYT’s instigation which had led KYT to fear losing her share that she needed to put an added gloss of protection of a third party caveat, on top of her registered proprietorship (if she so genuinely believed that she had never sold, assigned, or surrendered her rights as registered proprietor of the land). If indeed KYT genuinely have no idea at all about the sale and assignment, there was no reason at all for KYT to incur costs to prepare all the documents for a Deed of Trust and requisite documents to register a caveat on the Register just to protect her interests. If indeed KYT genuinely believed her rights as registered proprietor were never in any risk of loss, then she would have been sure that her rights and her intent to create such trust would never be defeated since she was the registered proprietor of the Land. And the fact that KYT attempted to put this added protection twice, adds more weight to the probability that KYT knows well that she no longer has rights over the Land, and that she is just 8    desperate to devise any manner whatsoever to ensure that her share of the Land is not surrendered. [12] Thus, it is this Court’s finding that indeed KYT has full knowledge of both the S&P and the Power of Attorney and that both of the S&P and Power of Attorney is never a sham or forgery. C. THE DEFENDANTS HAVE NO CAVEATABLE INTEREST [13] The absence of caveatable interest is glaring that there is no reason for this Court to go to an extremity of lengths to make its finding. [14] Just the mere fact that the S&P had already been executed between the 1st Plaintiff and KYT marks the vesting of the beneficial ownership of the Land onto the 1st Plaintiff as purchaser, while KYT as vendor only has rights to the purchase price (which the 1st have paid in full). This is the exact principle upheld by the Supreme Court in the case of Yeong Ah Chee v Lee Chong Hai & Anor and other appeals [1994] 2 MLJ 614: 9    “…it is an old and well-settled rule of equity that under a valid contract for sale of land, the beneficial ownership of the land passes to the purchaser who becomes the equitable owner, while the vendor has a right to the purchase money for which he has a lien on the land.” [15] Thus, KYT no longer has ownership over the Land at the time of the execution of KYT’s trust deed in favour of the Defendants. It legally and logically entails that the trust deed is invalid for the sheer lack of certainty of subject, being the Land itself since the Land is no longer KYT’s to pass on to the Defendants. [16] It is also time celebrated principle that a vendor, upon receipt of the full purchase price becomes a bare trustee holding the land for the benefit of the purchaser and ceases to have any beneficial interest in the land. (see Temenggong Securities Ltd & Anor v Registrar of Titles, Johore & Ors [1974] 2 MLJ 45; Yeong Ah Chee v Lee Chong Hai & Anor and other appeals [1994] 2 MLJ 614) [17] The Supreme Court in Yeong Ah Chee had held the following: 10    There was no evidence to support the finding that the transfers deeds… the other trust deeds lacked certainty of subject ie the trust property, because the beneficial ownership of the lands had already passed to the purchasers when the sale agreements were executed, the Lee brothers, as trustees under the trust deeds, could not vest the lands in themselves as trustees when, at the time of signing the trust deeds, they were not owners of the lands in law and equity” [18] Similarly in the present case, it is undisputed that the 1st Plaintiff indeed had paid the full purchase price to KYT. Thus, KYT now holds the land for the benefit of the 1st Plaintiff. It naturally entails then, that KYT no longer has any beneficial interest to hold on trust for the benefit of the Defendants. Thus, the Defendants have no beneficial interest at all in the Land. [19] Thereto, it is this Court’s finding that the Defendants do not at all have any beneficial interest over the land. It follows that the Defendants do not have any caveatable interest in the Land. 11    D. THE DEFENDANTS’ CAVEAT OUGHT TO BE REMOVED [20] The law on removal of caveat is well settled. It is first incumbent for the caveator to show that he has a caveatable interest. Only if the caveator succeeds to prove caveatable interest that the caveator then must prove that he has a serious question meriting a trial. Finally, the Court would then have to look at the balance of convenience. If the balance of convenience lies with the Applicant (in that the Applicant would suffer grave damage if the caveat is retained), then the caveat ought to be removed. (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719) [21] All of the Defendants’ defence is a non-starter in regards to all of the above requisites. The Defendants have already failed the 1st requisite to prove caveatable interest. Clearly then, there would be no serious question meriting a trial. All that was afforded by the Defendants were mere bare assertions and averments which hold no weight in Court. Similarly, the issue of balance of convenience is a non-starter. The Defendants stand to lose nothing in the 12    present Application as nothing is beneficially theirs. However, the Plaintiffs stand to lose both the land, as well as the loan facilities which were already accepted from the CIMB since the Land is in a stalemate, unable to be dealt with to be transferred to Koh Choon, or to be put as security for the loan. [22] Thus, it is this Court’s decision that the Defendants’ caveat ought to be removed. E. COURT’S DECISION [23] In view of all of the findings and deliberations above, it is this Court’s decision that the Plaintiffs have successfully proven their case. [24] It is also this Court’s decision that the Defendants have utterly failed to prove any defence to challenge the Plaintiff’s present Originating Summons. This Court hereby dismisses the Defendants’ defence. [25] Thus, this Court grants order-in-terms to the Plaintiff’s present Originating Summons. 13    [26] This Court also orders the Land Office to remove the caveat No Perserahan 3181/2015 lodged by Chow Jack Seon and Chow Yip Jane registered in the Land held under Title No PM 3756, Lot 13523, Pekan Kayu Ara, Tempat Kg Sungai Kayu Ara, Daerah Petaling on 13.10.2015. [27] Finally, this Court also orders both the Defendants to pay the Plaintiffs RM 8000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 15 Julai 2016 For the Plaintiffs - Messrs Low & Partners Loke Yuen Hong For the Defendants - Messrs Hee & Lim Hee Wai Ming

Tika 2.6.0

BA-24NCVC-71-03/2016

PLAINTIF Lim Yong Fung DEFENDAN GBT Industries Sdn. Bhd.

14/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e27919c4-fe0b-4a4c-b042-efcddb962fe3&Inline=true

Microsoft Word - BA-24NCVC-71-03-2016 GBT Industries Sdn Bhd V Lim Yong Fung 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. BA-24NCVC-71-03/2016 Dalam perkara mengenai Aturan 7 dan Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012; Dan Dalam Perkara mengenai Seksyen 44 (1) (a) dan Seksyen 89 Kanun Tanah Negara 1965 Dan Dalam Perkara mengenai hartanah yang dipegang di Hakmilik berdaftar Geran Mukim No. 980, Lot No. 996, Mukim Semenyih, Daerah Hulu Langat, Negeri Selangor Dan Dalam Perkara mengenai Perisytiharaan Jualan bertarikh 20 November 2014 menurut Perintah Juala Atas Permintaan Pemegang Gadaian PTDHL.PPJ (PEND) 700-6/7/163-2013 bertarikh 16- 6-2014 2    ANTARA LIM YONG FUNG ....PLAINTIF (No. K/P: (Baru): 620630-10-5585) DAN GBT INDUSTRIES SDN BHD ….DEFENDAN (No. Syarikat: 299716-M) ALASAN PENGHAKIMAN (Kandungan 1) [1] Melalui Saman Pemula (Kandungan 1) yang difailkan pada 21.3.2016 ini, Plaintif (Lim Yong Fung) memohon antara-lain perintah-perintah yang berikut: (a) perintah deklarasi bahawa Plaintif adalah tuanpunya berdaftar bagi hakmilik berdaftar Geran berdaftar Geran Mukim No. 980, Lot No. 996, Mukim Semenyih, Daerah Hulu Langat, Negeri Selangor yang beralamat di Lot 996, Batu 22, Jalan Beranang, 43500, Semenyih, Selangor (hartanah tersebut) menurut 3    Seksyen 89 Kanun Tanah Negara 1965 (KTN) dan berhak untuk satu milikan kosong; dan (b) bahawa Defendan dan/atau agen Defendan menyerahkan milikan kosong hartanah tersebut kepada Plaintiff dengan aman dan dalam keadaan asal dalam tempoh tujuh (7) hari dari tarikh perintah. [2] Plaintif telah membuat permohonannya di Kandungan 1 ini dengan bersandarkan kepada peruntukan Seksyen 44 (1) (a) dan Seksyen 89 Kanun Tanah Negara 1965 (KTN). Latar belakang ringkas [3] Plaintif adalah pembida yang berjaya membeli hartanah tersebut di dalam satu lelongan awam yang diadakan pada 20.11.2014 atas kegagalan tuanpunya terdahulu hartanah tersebut yakni Lambaian Bebas Sdn Bhd (Lambaian Bebas) untuk menjelaskan hutangnya kepada pemegang Gadaian (Public Bank Berhad). 4    [4] Plaintif telah berjaya membeli hartanah tersebut dengan harga RM4,500,000.00 di mana pada tarikh lelongan awam tersebut Plaintif telah membuat bayaran deposit sebanyak RM450,000.00. Pembayaran baki wang belian sebanyak 4,050,000.00 telahpun dibayar oleh Plaintif melalui deraf bank kepada peguamcara Pemegang Gadaian melalui peguamcara Plaintif pada 4.3.2015. [5] Kemudian daripada itu, hartanah tersebut telah didaftarkan ke atas nama Plaintif. (Sila lihat Eksibit “LYF-2”, Kandungan 2 - Afidavit Sokongan). [6] Namun, Plaintif tidak dapat mengambil milikan kosong hartanah tersebut kerana hartanah tersebut berada di bawah kawalan Defendan (GBT Industries Sdn Bhd). [7] Plaintif telah seterusnya mengarahkan peguamcaranya untuk memberi Notis bertulis bertarikh 9.11.2015 kepada Defendan untuk memaklumkan bahawa Plaintif adalah tuanpunya berdaftar hartanah tersebut dan dengan yang demikian menuntut Defendan menyerahkan milikan kosong hartanah tersebut kepada Plaintif. 5    [8] Namun, Defendan telah enggan/ingkar untuk mematuhi Notis bertulis tersebut dan justeru itu Plaintif memfailkan Saman Pemula dalam Kandungan 1 ini. [9] Defendan telah menentang permohonan Plaintif dengan memfailkan Afidavit Jawapan Gan Seow Ling yang diikrarkan pada 6/04/2016 (Kandungan 3). Gan Seow Ling adalah Pengarah Defendan. [10] Defendan telah menentang permohonan Plaintif atas alasan-alasan berikut: i. Defendan berhak menduduki hartanah tersebut kerana terdapat satu perjanjian penyewaan di antara Defendan dan Lambaian Bebas bertarikh 16.5.2011 (perjanjian penyewaan tersebut) yang mana Defendan telah membayar sewaan sebanyak RM3000.00 sebulan. Menurut perjanjian penyewaan tersebut Defendan adalah berhak untuk menduduki hartanah tersebut daripada 16.5.2011 sehingga 15.5.2014 dengan opsyen perlanjutan sewaan tersebut untuk tempoh tiga (3) tahun. 6    ii perjanjian penyewaan yang dimasukki oleh Defendan tersebut mengwujudkan kepentingan Defendan ke atas hartanah tersebut. [11] Adalah menjadi hujahan peguam Defendan bahawa memandangkan Defendan adalah penyewa yang telah memasukki perjanjian penyewaan dengan tuanpunya terdahulu hartanah tersebut, maka Defendan tidak boleh dikeluarkan daripada hartanah tersebut secara prosidur ringkas summary procedure menurut Aturan 81 Kaedah- Kaedah Mahkamah 2012 (KKM 2012) kerana Defendan mempunyai kepentingan ke atas hartanah tersebut. Untuk hujahan ini, peguam Defendan telah merujuk kepada kes Chong Mee Leng v Lam Chong Seng [2005] 5 AMR 269. [12] Peguam Defendan telah juga telah membangkitkan bahawa Aturan 89 KKM 2012 juga tidak terpakai kepada Defendan kerana Defendan bukanlah berstatus setinggan. [13] Mahkamah ini telah membuat penelitian terhadap perjanjian penyewaan di Eksibit “A”, Kandungan 3 (Afidavit Jawapan Defendan) 7    dan Mahkamah ini bersetuju dengan peguam Plaintif bahawa pertamanya, Plaintif bukanlah pihak-pihak di dalam Perjanjian Penyewaan tersebut. Perjanjian Penyewaan tersebut telah ditandatangani oleh Defendan dengan Lambaian Bebas yang tidak ada kena mengena dengan Plaintif. Keduanya, adalah tidak dipertikaikan bahawa pada masa perlaksanaan atau pada tarikh Perjanjian Penyewaan tersebut ditandatangani Lambaian Bebas adalah sebuah syarikat yang telah digulungkan. Lambaian Bebas telah digulungkan pada 26.5.2010. Dengan itu, apabila Lambaian Bebas digulungkan secara sukarela pada 26.5.2010, mana-mana pegawai atau Lembaga Pengarah Lambaian Bebas telahpun functus officio dan tidak mempunyai kapasiti undang-undang atau keupayaan untuk memasukki sebarang perjanjian dengan mana-mana pihak kerana pentadbiran dan urusan hal ehwal Lambaian Bebas telah diambilalih oleh Pelikuidasi. Dalam erti kata lain, tidak ada seorang pun atau mana-mana pihak pun boleh bertindak bagi pihak Lambaian Bebas (syarikat yang digulung) melainkan Pelikuidasi yang dilantik. Pelikuidasi yang dilantik bagi menguruskan pentadbiran dan urusan hal ehwal Lambaian Bebas adalah Chong Chuan Long (Eksibit “LYF- 5, Kandungan 4). 8    [14] Kedudukan undang-undang adalah jelas berkaitan dengan kedudukan sebuah syarikat yang telah digulungkan. Mahkamah ini suka merujuk kepada kes American International Assurance Bhd v Coordinated Services L Design Sdn Bhd [22012] 1 CLJ 506 yang telah dikemukakan oleh peguam Plaintif. Mahkamah Rayuan di dalam kes ini telah memutuskan antara lain: “[25] It is trite law that once a company is wound up, the board of directors of the company becomes functus officio. The liquidator displaces the directors and the control of the activities of the company is vested with the liquidator. No one but the liquidator can act for the company…” [26] When a winding-up order is made, the directors of the company remain in office but their powers are removed. While the company is in the process of being wound up a person cannot perform or exercise, and must not purport to perform or exercise a function or power as an officer (other than a liquidator) of the company, except with the approval of the liquidator or the court.” 9    (Sila lihat: i. Tan Chee Hoe & Sons Sdn Bhd v. Code Focus Sdn Bhd [2014 3 CLJ 141 “…a void contract or agreement cannot be enforced by law. When a contract or agreement is void, the whole terms in the contract are void and cannot be enforced. No term of the said contract can be spared.” ii. HLE Engineering Sdn Bhd v HTE Letrik Bumi JV Sdn Bhd [2015] MLJU 8: “As statement of general principle that pertains to a situation involving a wound-up company, it is trite that its subsequent affairs would be in the hands of its liquidator.” [15] Di dalam hal ini, penandatangan yang menandatangani perjanjian penyewaan yang bertarikh 16.5.2011 bagi pihak Lambaian Bebas iaitu seorang bernama Chan Yen Hoong (yang tidak diketahui apakah jawatan yang dipegangnya dalam Lambaian Bebas) jelas tidak mempunyai kuasa ataupun otoriti undang-undang untuk menandatangani perjanjian perjanjian penyewaan tersebut. Maka perjanjian penyewaan ini jelas tidak boleh dikuatkuasakan. 10    Tambahan lagi, Mahkamah ini perlu menegaskan bahawa kalaupun sekiranya diandaikan bahawa perjanjian penyewaan tersebut boleh dikuatkuasakan oleh Defendan, tempoh penyewaan telahpun tamat pada 15.5.2014 sebelum lelongan awam dilaksanakan terhadap hartanah tersebut. Walaupun terdapat opsyen untuk perlanjutan tempoh sewaan, namun tidak ada dokumen yang telah dikemukakan oleh Defendan untuk membuktikan bahawa terdapatnya perlanjutan tempoh penyewaan. Kedudukan yang nyata dan jelas adalah, semasa lelongan awam dijalankan dan Plaintif telah berjaya dalam bidaannya, perjanjian penyewaan tersebut telahpun tamat. Dengan tamatnya perjanjian penyewaan tersebut, Defendan tidak berhak lagi untuk menduduki hartanah tersebut. [16] Mahkamah ini juga bersetuju dengan peguam Plaintif bahawa Perjanjian Penyewaan tersebut tidak diindorskan pada dokumen hakmilik hartanah tersebut dan ketiadaan pengindorsan ini tidak langsungkan dipertikaikan Defendan. [17] Seksyen 213(3) KTN telah memperuntukkan berikut: 11    “ (3) Notwithstanding the provision of sub-section (2), no tenancy exempt from registration granted after the commencement of this Act shall be binding on – (a) any person or body to whom the grantor subsequently transfers the reversion expectant thereon, or to whom he subsequently grants any lease, sub-lease, tenancy or charge, or in whose favour any lien over that reversion is subsequently created; (b) ……………. Unless, prior to the date on which the dealing referred to in paragraph (a) takes effect, the tenancy has become protected by an endorsement on the register document of title…’’ [18] Manakala Seksyen 267(2) & (3) KTN pula memperuntukkan berikut: “ (2) Notwithstanding that it was granted with the consent in writing of the charge, as required by subsection (1) or s. 226, no tenancy exempt from registration granted by the chargor after the date of registration of the charge shall be binding on the purchaser unless, prior to the date of registration of certificate of sale, the 12    tenancy had become protected by an endorsement on the register document of title to the land pursuant to Chapter 7 of Part Eighteen. (3) The provisions of subsection (2) shall have effect in addition to those of subsection (3) of s.213, under which, by virtue of the fact that he claims through the charge, the purchaser will not be bound by any tenancy granted by the chargor before the date registration of the charge unless it had become protected by endorsement prior to that date.” [19] Peruntukan Seksyen 213(3) dan Seksyen 267(2) & (3) KTN adalah jelas. Di dalam kes ini, tidak ada keterangan yang menunjukkan bahawa Perjanjian Penyewaan tersebut telah diindorskan ke atas dokumen hakmilik tanah, justeru itu adalah menjadi dapatan Mahkamah Plaintif tidak boleh diikat dengan sesuatu penyewaan (tenancy) yang tidak dilindungi oleh undang-undang. (Sila lihat: i. Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd [1991] 1 CLJ (Rep) 174. ii. Public Bank Berhad v Wan Leong Hup Keep Co [1992] 3 CLJ (Rep) 294.) 13    [20] Di dalam hal ini, apabila Perjanjian Penyewaan yang mana Defendan bergantung tidak mempunyai kuatkuasa undang-undang dan maka ia tidak langsung mengikat Plaintif sebagai seorang pembida yang berjaya dan telah membuat pembayaran penuh harga belian hartanah tersebut dan telah juga didaftarkan sebagai tuanpunya berdaftar hartanah tersebut kemudiannya. Sebagai pembeli suci hati dalam lelongan awam mengikut perintah bertarikh 16/6/2014, Plaintif adalah berhak untuk mendapatkan relif-relif yang dipohonnya. [21] Berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini, bahawa Plaintif-Plaintif sebagai tuanpunya berdaftar hartanah tersebut, ketuanpunyaan Plaintif-Plaintif terhadap hartanah tersebut adalah jelas terbukti dan tidak disangkal melalui keterangan- keterangan afidavit dan dokumentar. (Sila lihat kes-kes yang dirujuk oleh peguam Plaintif-Plaintif i. Holee Holdings (M) Sdn Bhd v. Chai Him & Ors [1997] 1 LNS 424 ii. Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ 26 iii. Teh Bee v. K Maruthamuthu [1977] 2 MLJ 7) 14    Keputusan Mahkamah [22] Atas alasan-alasan di atas, Mahkamah ini dengan yang demikian membenarkan permohonan Plaintif di dalam Kandungan 1 dan memerintahkan juga Defendan membayar kos sebanyak RM5000.00 kepada Plaintif. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (NCVC 8) Selangor Darul Ehsan Bertarikh 14 haribulan Julai 2016 15    Peguam Plaintif - Tetuan K.Y Sim & Co Encik K.Y Sim Encik Mohd Khairi bin Ahmad Tarmizi Peguam Defendan - Tetuan Gunaseelan & Associates Encik Gunaseelan A/L S. Thambinathan Encik Keshvin Jeet

Tika 2.6.0

BA-24NCVC-19-02/2016

PLAINTIF 1. Soo Kam Cheong 2. Soo Kam How DEFENDAN Lim Ing Tiong

14/07/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=993a71f5-00a6-4c02-84e6-6aa039855af4&Inline=true

Microsoft Word - BA-24NCVC-19-02-2016 Soo Kam Cheong & 1 lagi Lwn Lim Ing Tiong 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO. BA-24NCVC-19-02/2016 Dalam Perkara Seksyen 327, Kanun Tanah Negara, 1965 DAN Dalam Perkara Kaveat Persendirian (No Serahan 54281/2015) ke atas Tanah-Tanah yang dipegang di bawah Hakmilik HSD 43764, Lot PT 41012 Mukim Klang, Daerah Klang, Negeri Selangor DAN Dalam Perkara Kaveat Persendirian (No Serahan 54286/2015) ke atas Tanah-Tanah yang dipegang di bawah Hakmilik GRN 51163, Lot 44 Seksyen 1, Mukim Bandar Port Swettenham, Daerah Klang, Negeri Selangor DAN Dalam Perkara Kaveat Persendirian (No Serahan 54288/2015) ke atas Tanah-Tanah yang dipegang di bawah Hakmilik GRN 27307, Lot 24 Seksyen 1, Mukim Bandar Port 2    Swettenham, Daerah Klang, Negeri Selangor DAN Dalam Perkara BidangkuasaSedia Ada Mahkamah yang Mulia ini ANTARA 1. SOO KAM CHEONG (NO K/P: 610528-08-6143) 2. SOO KAM HOW (NO K/P: 680413-08-5295) …PLAINTIFFS DAN LIM ING TIONG (NO K/P: 850831-10-5657) ...DEFENDANT GROUNDS OF JUDGMENT (ENCLOSURE 1- REMOVAL OF CAVEATS) A. BACKGROUND FACTS [1] The present case is a clear and meritorious application by the Plaintiffs under Section 327 of the National Land Code 1965 to 3    remove caveats lodged by the Defendant for a resounding lack of caveatable interest. The present dispute, succinctly put, is the Defendant’s attempt to stake an interest in personam of an unsecured debt, which is totally foreign into a piece of land against the clear rights and interest of the Plaintiffs as co-proprietors of the land. It is somehow, the Defendant’s erroneous contention that an interest in personam which is not even registrable (an unsecured debt) is sufficient ground for a caveatable interest. [2] Soo Kam Cheong (“1st Plaintiff”), Soo Kam How (“2nd Plaintiff”) as well as one, Soo Kam Yew (“SKY”) are registered co- proprietors of three separate shop-houses held under HSD 4376, Lot PT 41012, Mukim Klang, Daerah Klang, Negeri Selangor, GRN 51163, Lot 44 Seksyen 1, Mukim Bandar Port Swettenham, Daerah Klang, Negeri Selangor, and GRN 27307, Lot 24 Seksyen 1, Mukim Bandar Port Swettenham, Daerah Klang, Negeri Selangor (“collectively referred to as Properties”). SKY had also executed trust deeds in which he vests the Plaintiffs with beneficial ownership of SKY’s shares in the Properties. [3] Lim Ing Tiong (“Defendant”) alleges that he is an unsecured creditor of SKY and that SKY had defaulted repayment of a 4    personal loan to the amount of RM 2,500,000.00. It is on this alleged failure to repay the loan that the Defendant had lodged private caveats onto the Properties. It remains undisputed that the alleged interest of the Defendant is one of an unsecured debt altogether foreign to the Properties. The Properties were never in any contention in relation to the unsecured debt. [4] It is this lodgement of caveats that forms the basis of the Plaintiffs’ Application in the present case. It is pertinent to note that the Defendant had contended very little to nothing at all to oppose the Plaintiffs’ Application. All that was a fallible attempt to dispute trite and time-celebrated principles of land law. B. THE ALLEGED UNSECURED DEBT IS NOT A CAVEATABLE INTEREST [5] Even before this Court delves to the other issues in the present Application, it is verily pertinent that this Court emphasises that the sheer basis and foundation of the Defendant’s caveats is legally wrong. There are great justifications behind the law’s separate treatment and demarcation between secured and unsecured debts and between claims in rem and in personam. It is ultimately trite 5    that a claim in personam cannot simply be attached and registered against an interest in rem especially when the interest in personam is totally foreign to the interest in rem. Especially in the present case, SKY’s rights and/or interests in rem in the Properties were never a contention between whatever loan agreement which SKY is alleged to have with the Defendant. SKY’s shares in the Properties was never part of the loan and SKY had never even indicated any surrender or deposit of SKY’s rights in the Properties to be security in consideration of the loan. [6] Simply put, SKY’s interests in rem in the properties is a world apart and is a total stranger to the Defendant’s alleged interest in personam against SKY. It would be dangerous and altogether legally flawed if this Court were to simply allow any claim in personam to be registered to a property when the claim in personam has no relation to the property at all. [7] This Court finds valuable guidance in the landmark case of Standard Chartered Bank v Yap Sing Yoke & Ors [1989] 2 CLJ (Rep) 500 where the following was held: 6    “…It is of course axiomatic that a personal claim (i.e. in general law terms a mere, personal, in personam claim) enforceable against the registered proprietor and not the land, is not able to be caveated. Only claims to interests in land (i.e. in general law terms in rem claims) which relates to interests capable of registration, can be caveated” [8] Applying the same to the present case, it is clear that the alleged unsecured debt (if there is any) is an interest enforceable only against SKY, but not against SKY’s properties. This Court cannot simply draw a parallel between the two distinct interests when there is no nexus between the two interests. [9] Solidifying the Plaintiffs’ case further is the fact that the Courts have time and time again decided in agreement that unsecured monetary debts or claims are claims in personam and thus are not caveatable interests. [10] The Court of Appeal in the case of Kundang Lakes Country Club v Garden Masters (M) Sdn Bhd [1999] 2 CLJ 633 had held that: 7    “It is trite law that a claim for a mere debt cannot give rise to a caveatable interest.” (see also Dusun Desaru Sdn Bhd & Anor v Wang Ah Yu & Ors (No.2) [2001] 5 CLJ 8; Saffaruan Mohamad v Kamaludin Ibrahim & Satu Lagi [2008] 8 CLJ 531) [11] Thus, even before this Court were to delve into other issues in the present Application, it is already clear even at this early juncture that the Defendant had no rights at all to lodge the caveats onto the Plaintiffs’ land or even SKY’s shares to the Properties to be exact. It matters not if the Defendant intended to put a caveats on the entirety or only SKY’s shares in the Properties. Either way, the Defendant has no business at all to lodge any caveats whatsoever over the Properties or any shares in the Properties. On the same note, it also matters not whether the trust made in favour of the Plaintiffs were valid or otherwise, as at the very essence of the Defendant’s alleged claim in personam, the Defendant has no caveatable interest to lodge caveats into the Properties. The validity or invalidity of the trust is irrelevant to the Defendant’s total absence of interest in rem as well as caveatable interest. It 8    ultimately remains constant that the Defendant has no caveatable interest whatsoever however the stone may be turned. [12] Thus, it is this Court’s finding that the Defendant has no interest in rem against the Properties and absolutely has no caveatable interest to warrant the lodgement of caveats onto the Properties. C. THE PLAINTIFFS AS REGISTERED PROPRIETORS OF THE PROPERTIES CLEARLY HAVE THE LOCUS STANDI IN THE PRESENT APPLICATION TO REMOVE CAVEATS [13] Desperate to salvage an ultimately failing defence, the Defendant attempted to contend against time-tested and trite principles in Land Law with regards to the rights of registered proprietors. It is the Defendant’s preposterous contention that the Plaintiffs have no locus standi to make the present application on two grounds: a. In that the Plaintiffs shares are separate and distinct from SKY’s shares and are not aggrieved at all from the Defendant’s caveats; 9    b. and that the Plaintiffs are not parties to the alleged personal loan agreement between SKY and the Defendant. [14] Against the contention in (a.) above, it is already settled law that co-proprietors of undivided shares in a land are entitled to use and occupy the whole entirety of the property. (see Law King Po & Ors v Sacofa Sdn Bhd & Ors [2008] 10 CLJ 258). It is also trite that co-proprietors of each share shall be entitled to the possession and enjoyment of the land as a whole and not in parts according to their respective shares. (see Wan Salimah bte Wan Jaafar v Mahmood Bin Omar [1998] 5 MLJ). And the Courts have upheld the former principles simply because no one co- proprietor can simply identify and demarcate particular portion of the land to be his (see Mohd Yusof Ujang v Tenaga Nasional Berhad [2015] 1 LNS 624; Setiawah @ Siti Hawa Abd Talib & Ors v Haji Kamaruddin Haji Abd Talib [2011] 1 LNS 41. Thus, since the portions could not be identified, any part of the land may have been a portion of each and every co-proprietor. Thus, it is clear that it matters not if the Defendant intended to only caveats SKY’s portion of the land. The Defendant of course could not identify which portion of the land to be caveats. And owing to the principles stated earlier, the Defendant’s caveats lodged onto any 10    portion of the land is as good as caveating the Plaintiffs’ portion of the Properties as the Plaintiffs’ have the rights to the use, possession, as well as enjoyment of the entirety of the Properties. And caveats to any portion of the Properties would aggrieve and affect the Plaintiffs. [15] It is baffling to this Court that the Defendant would refer to the following excerpt of the Court’s decision in Rohaya bte Ibrahim v Yusof bin Ibrahim [2008] 7 MLJ 466: “Being the registered owner of 1/3 undivided share in the said land whose title over the same is indefeasible, she is at liberty to deal with her land in the manner she things fit. She can sell or transfer or mortgage her share in the land to whomever she pleases and can pass a good title to any purchaser.” [16] All this excerpt stands to prove is that a co-proprietor owning a portion and not the entirety of the land shall enjoy indefeasible rights over his shares of the land. No doubt the Plaintiffs and SKY enjoy the same indefeasible rights over their shares, and are able to deal with their shares howsoever they deem fit. However, this 11    does not negate the principle that the co-proprietors have the rights to the use and enjoyment of the entirety of the land, and any disturbance over any portion of the land, aggrieves all of the co- proprietors. The apportionment of shares in a property may be demarcated in the sense of ownership and rights of dealing with the ownership. However the use and enjoyment of the entirety of the Properties cannot be demarcated and identified between co- proprietors and their respective shares. Not only that, even as to the indefeasible rights of SKY and the Plaintiffs to deal with their shares, the caveats would surely affect the Plaintiffs’ rights to deal with the Properties as it naturally entails that any prospective buyers would be less inclined to deal with the Plaintiffs considering the caveats lodged by the Defendant being an obstacle for all co- proprietors of the Properties. (see also Eng Mee Yong v Letchumanan [1979] 1LNS 18) [17] Therefore, it is this Courts finding that indeed the Plaintiffs in the present case are aggrieved persons under Section 327 of the National Land Code 1965 as the caveats may hinder their rights to use, possess, and enjoy the entirety of the Properties. More probable than not, a buyer would be less willing to deal with a land 12    in which a private caveats was already registered onto the tile, notwithstanding if the caveats intended to secure the entire or a portion of the land. [18] Against contention (b.) above, the factum of the Plaintiffs lack of privity of contract with the alleged loan agreement between the Defendant and SKY instead proves to defeat the Defendant’s own case. The sheer fact that the Plaintiffs were never part of the alleged loan agreement goes further to show that the alleged loan agreement is altogether alien to the Properties. And considering this fact, it further shows that it was wrong for the Defendant to disturb the Plaintiffs’ indefeasible rights to the use and enjoyment of the entire Properties when the Plaintiffs are not even parties in the loan agreement between SKY and the Defendant. [19] Thus, it is this Court’s finding that the Plaintiffs clearly are ‘aggrieved persons’ under Section 327 of the National Land Code and have the necessary locus standi to apply to have the Defendant’s caveats to be removed. D. THE DEFENDANT’S CAVEATS OUGHT TO BE REMOVED 13    [20] In defending a caveats, it is incumbent for the caveator to prove that he has a caveatable interest. If the caveator succeeds to prove caveatable interest, the caveator then must prove that he has a serious question to be tried. Finally, the Court would then have to look at the balance of convenience. If the balance of convenience lies with the Applicant (in that the Applicant would suffer grave damage if the caveats is retained), then the caveats should be removed. (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719) [21] It is not difficult to find that the Defendant had utterly failed to meet any of these requirements. It is reiterated here that the Defendant’s claim in rem is not at all a caveatable interest. The Defendant also had failed to show that he has a serious question to be tried. On the balance of convenience, the Defendant stands to lose nothing if the caveats are removed as the Defendant has no rights at all to lodge the caveats in the first place. However, the Plaintiffs stand to have their indefeasible interests and rights to possession, use, as well as enjoyment of the Properties to be disturbed unless the caveats are removed. Therefore, the balance of convenience lies in the favour of the Plaintiffs. 14    [22] Thus, it is this Court’s finding that the Defendant’s caveats in the Properties should be removed. E. COURT’S DECISION [23] In view of all of the findings and deliberations above, it is this Court’s decision that the Plaintiffs have successfully proven their case. [24] It is also this Court’s decision that the Defendant has utterly failed to prove any defence to challenge the Plaintiffs’ present Originating Summons. This Court hereby dismisses the Defendant’s defence. [25] Thus, this Court grants order-in-terms to the Plaintiffs’ present Originating Summons. [26] This Court also orders the Land Office or the proper authority(ies) to remove the following caveats lodged by the Defendant on or about 22.10.2015: 15    a. Presentation No. 54281/2015 in HSD 4376, Lot PT 41012, Mukim Klang, Daerah Klang, Negeri Selangor; b. Presentation No. 54286/2015 in GRN 51163, Lot 44 Seksyen 1, Mukim Bandar Port Swettenham, Daerah Klang, Negeri Selangor; c. Presentation No 54288/2015 in GRN 27307, Lot 24 Seksyen 1, Mukim Bandar Port Swettenham, Daerah Klang, Negeri Selangor [27] Finally, this Court also orders the Defendant to pay the Plaintiffs RM 5000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 14th July, 2016 16    For the Plaintiffs - Messrs Sia Siew Mun & Co Alvin Oh Seong Yew For the Defendant - Messrs Seah Balan Ravi & Co Kanesrau A/L Appalainadu

Tika 2.6.0

BA-24NCVC-63-03/2016

PLAINTIF 1. LEE HONG TEONG 2. LEE HOCK CHUAN 3. LEE HOCK HER 4. KHOO GUAT ENG DEFENDAN 1. TAN SIEW LIAN 2. PENGHUNI-PENGHUNI LOT 266-F DAN 266-G

01/07/2016

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 24NCVC-63-03-2016 Lee Hock Teong & 3 lagi v Tan Siew Lan & 1 lagi 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO. BA-24NCVC-63-03/2016 Dalam perkara mengenai hartanah yang dipegang di bawah hakmilik individu GM336, Lot 266, Mukim Cheras, Daerah Ulu Langat, Negeri Selangor Dan Dalam perkara Aturan 7 Kaedah- Kaedah Mahkamah 2012 Dan Dalam perkara Aturan 89 Kaedah- Kaedah Mahkamah 2012 Dan Dalam perkara Seksyen 8 Akta Relief Spesifik, 1950 Dan Dalam perkara Aturan 92 Kaedah 4, Kaedah-Kaedah Mahkamah 2012 2    ANTARA 1. LEE HOCK TEONG (NO. K/P:701021-10-5357) 2. LEE HOCK CHUAN (NO. K/P:691023-10-5557) 3. LEE HOCK HER (NO. K/P:680510-10-6115) 4. KHOO GUAT ENG (NO. K/P:420708-10-5184) … PLAINTIF-PLAINTIF DAN 1. TAN SIEW LIAN 2. PENGHUNI-PENGHUNI LOT 266-F DAN 266-G … DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (Saman Pemula- Kandungan 1) [1] Melalui Saman Pemula (Kandungan 1), Plaintif-Plaintif memohon antara-lain perintah berikut: 1. bahawa Defendan-Defendan termasuk penghuni-penghuni lot 266-F dan 266-G dalam hartanah yang dipegang di bawah hakmilik GM336, Lot 266, Mukim Cheras, Daerah Hulu Langat, 3    Negeri Selangor (hartanah tersebut) dengan serta-merta keluar daripada hartanah tersebut; 2. bahawa Defendan-Defendan termasuk penghuni-penghuni lot 266-F dan 266-G dalam hartanah tersebut dengan serta-merta menyerahkan milikan kosong, pegangan dan kawalan hartanah tersebut kepada Plaintif-Plaintif; 3. bahawa setelah sesalinan Perintah ini diserahkan ke atas Bailif Mahkamah, Bailif Mahkamah secara serta-merta menguatkuasakan dan/atau membantu penguatkuasaan perintah yang diberikan di sini sebagaimana Perenggan 1 dan 2 di atas; 4. bahawa Bailif Mahkamah hendaklah dikuatkuasakan dan diberi kuasa untuk menguatkuasakan atau membantu penguatkuasaan perintah yang diberikan di sini sebagaimana Perenggan 1 dan 2 di atas dengan kekerasan munasabah (reasonable force) dan jika perlu, secara paksa-masuk (forced entry) ke dalam hartanah tersebut; 4    5. bahawa Polis Diraja Malaysia, sekiranya dikehendaki oleh Bailif Mahkamah hendaklah dikuatkuasakan dan diarahkan untuk membantu Bailif Mahkamah untuk menguatkuasakan perintah yang diberikan di sini sebagaimana Perenggan 1 dan 2 di atas dengan kekerasan munasabah (reasonable force) dan jika perlu, secara paksa-masuk (forced entry) ke dalam Hartanah tersebut; [2] Plaintif-Plaintif (i. Lee Hock Teong ii. Lee Hock Chuan iii. Lee Hock Her dan iv. Khoo Guat Eng) telah memfailkan tindakan ini terhadap Defendan-Defendan (i.Tan Siew Lan dan ii. Penghuni-Penghuni Yang Mendiami Premis Atas Hartanah tersebut) memohon kepada Mahkamah ini untuk mengeluarkan suatu perintah supaya milikan kosong hartanah tersebut dikembalikan kepada mereka atas alasan bahawa Defendan-Defendan telah menceroboh masuk dan menduduki hartanah tersebut tanpa kebenaran mereka. Latarbelakang kes [3] Plaintif-Plaintif adalah tuanpunya berdaftar bersama hartanah tersebut. Plaintif Pertama, Plaintif Kedua dan Plaintif Ketiga adalah 5    merupakan adik-beradik dan juga merupakan anak-anak kepada Plaintif Keempat dan seorang bernama Lee Ah Pir. [4] Sebelum hartanah tersebut dipindahmilik kepada Plaintif-Plaintif pada 29.11.2013, tuanpunya-tuanpunya berdaftar asal hartanah tersebut adalah Lee Ah Pir dan Plaintif Pertama yang masing-masing memegang 44/72 dan 7/18 bahagian. Plaintif Pertama telah menjadi tuanpunya bersama hartanah tersebut apabila beliau telah telah membeli dan menerima pindahmilik 14/72 bahagian tidak terbahagi hartanah tersebut daripada Selamah binti Abdul Rashid pada sekitar tahun 2007. Lee Ah Pir (Si Mati 1) telah meninggal dunia pada 31.3.2013 dan semasa kematiannya Si Mati 1 telah meninggalkan Wasiat Terakhir (Last Will and Testament) bertarikh 15.10.2010 (Wasiat Terakhir Si Mati 1 tersebut – Eksibit “KGE-5”, Kandungan 5). [5] Atas kematian Si Mati 1 pada 11.4.2013, suatu geran probet telah dikeluarkan oleh Mahkamah Tinggi Kuala Lumpur (Eksibit “KGE-5”, Kandungan 5) kepada Plaintif Kedua (Lee Hock Chuan) sebagai wasi pesaka Si Mati 1. 6    [6] Atas terma-terma Wasiat Terakhir Si Mati 1 tersebut bahagian tanah kepunyaan Si Mati 1 sebanyak 44/72 tersebut telah dipindahmilik kepada Plaintif-Plaintif yang merupakan waris-waris Si Mati 1. Hartanah tesebut kini telah didaftarkan ke atas nama-nama Plaintf- Plaintif seperti berikut: a. Plaintif Pertama - 13/24 bahagian b. Plaintif Kedua - 11/72 bahagian c. Plaintif Ketiga - 11/72 bahagian d. Plaintif Keempat - 11/72 bahagian [7] Setelah Plaintif-Plaintif menjadi pemilik berdaftar hartanah tersebut, Plaintif-Plaintif telah melawat hartanah tersebut dan mereka telah mendapati bahawa tanpa pengetahuan Plaintif-Plaintif, Defendan Pertama telah menyewakan dua buah rumah kayu di atas hartanah khasnya Lot 266-F and 266-G yang menurut Plaintif-Plaintif telah dibina oleh Si Mati 1, kepada pihak-pihak ketiga. [8] Walaupun tuntutan telah berkali-kali telah dibuat oleh Plaintif-Plaintif termasuklah notis tuntutan yang dikeluarkan oleh peguamcara Plaintif-Plaintif bertarikh 30.12.2015 menuntut supaya Defendan- Defendan mengosongkan hartanah tersebut, namun Defendan- 7    Defendan telah tidak menghiraukan tuntutan Plaintif-Plaintif. Justeru itulah, Kandungan 1 ini difailkan oleh Plaintif-Plaintif. [9] Bagi menyokong Kandungan 1 mereka, Plaintif-Plaintif telah memfailkan empat (4) afidavit yakni: (i) Afidavit Sokongan yang diikrarkan oleh Khoo Guat Eng bertarikh 10-3-2016 (Kandungan 2); (ii) Afidavit Balasan Plaintif-Plaintif yang diikrarkan oleh Khoo Guat Eng bertarikh 6-5-2016 (Kandungan 5); (iii) Afidavit Balasan (No. 2) Plaintif-Plaintif yang diikrarkan oleh Khoo Guat Eng bertarikh 1-6-2016 (Kandungan 9); (iv) Afidavit Lee Hock Teong yang diikrarkan oleh Lee Hock Teong bertarikh 1-6-2016 (Kandungan 8). [10] Di dalam afidavit-afidavit yang menyokong Kandungan 1 mereka, Plaintif-Plaintif menegaskan seperti berikut: 10.1 Plaintif-Plaintif adalah tuan punya berdaftar hartanah tersebut. Ketuanempunyaan Plaintif-Plaintiff ke atas hartanah tersebut 8    adalah dibuktikan melalui Geran Hakmilik hartanah tersebut yakni di Eksibit “KGE-2” di dalam Kandungan 2. 10.2 Plaintif Pertama telah telah menjadi tuanpunya berdaftar bersama hartanah tersebut bersama ayahnya apabila membeli bahagian tanah kepunyaan Selamah bt Abdul Rashid pada tahun 2007. Selepas kematian Si Mati 1 (ayah/ suami Plaintif- Plaintif), bahagian Si Mati 1 telah dipindahmilik kepada Plaintif- Plaintif sebagai waris-warisnya menurut Wasiat Terakhir Si Mati 1 tersebut. Eksibit “KGE-1” di dalam Kandungan 2 membuktikan bahawa Plaintif Pertama dan Si Mati 1 adalah merupakan tuanpunya terdahulu hartanah tersebut. Justeru pindahmilik hartanah tersebut ke atas Plaintif-Plaintif adalah dibuat berlandaskan peraturan/undang-undang dan selaras dengan hak mereka sebagai waris-waris Si Mati 1 seperti yang dihasratkan oleh Si Mati 1 di dalam Wasiat Terakhirnya. [11] Defendan Pertama (Tan Siew Lan) telah menentang permohonan Plaintif-Plaintif dengan memfailkan lima (5) afidavit yakni: 9    (i) Afidavit Jawapan yang diikrarkan oleh Tan Siew Lian bertarikh 11-4-2016 (Kandungan 4); (ii) Afidavit Jawapan (II) yang diikrarkan oleh Tan Siew Lian bertarikh 19-5-2016 (Kandungan 6); (iii) Afidavit yang diikrarkan oleh Lee Kwee Ley bertarikh 20-5-2016 (Kandungan 7); (iv) Afidavit Jawapan (III) yang diikrarkan oleh Tan Siew Lian bertarikh 15-6-2016 (Kandungan 10); (v) Afidavit Lee Kwee Ley (No. 2) yang diikrarkan oleh Lee Kwee Ley bertarikh 15-6-2016 (Kandungan 11). Bantahan Permulaan [12] Sebelum Mahkamah ini mempertimbangkan merit kes Plaintif-Plaintif, terlebih dahulu Mahkamah ini akan mempertimbangkan dahulu bantahan permulaan yang dibangkitkan oleh Defendan Pertama berkenaan kemasukan Afidavit Balasan Plaintif No.2 yang dikrarkan pada 2.6.2016 dan Afidavit Plaintif yang diikrarkan pada 2.6.2016. Peguam Defendan telah membangkitkan bahawa kedua-dua afidavit Plaintif-Plaintif telah difailkan di luar had masa yang dibenarkan dan 10    sepatutnya tidak boleh diterima masuk bagi menyokong saman pemula mereka. [13] Peguam Defendan telah menghujahkan bahawa kedua-dua afidavit Plaintif-Plaintif tersebut adalah untuk menjawab Afidavit Jawapan (II) Defendan Pertama dan Afidavit Lee Kwee Ley. Menurut peguam, Afidavit Jawapan (II) dan Afidavit Lee Kwee Ley tersebut telah disampaikan kepada peguamcara Plaintif-Plaintif pada 20-5-2016, namun kedua-dua afidavit Plaintif-Plaintif tersebut telah hanya disampaikan kepada peguamcara Defendan Pertama melalui salinan faksimili pada 6-6-2016 dan salinan asal pada 7-6-2016 di mana tempoh tersebut telah melebihi masa empat belas (14) hari. [14] Di samping itu, menurut peguam Defendan lagi, pada tarikh 25-4- 2016 semasa pengurusan kes di hadapan Penolong Kanan Pendaftar (PKP), PKP telah memberikan arahan untuk Plaintif-Plaintif memfailkan afidavit sebelum 9-5-2016, Defendan Pertama untuk memfailkan afidavit jawapan sebelum 23-5-2016. PKP juga telah memberikan tarikh 16-6-2016 untuk pihak-pihak memfailkan dan bertukar penghujahan bertulis. Pendengaran telah ditetapkan pada 11    28-6-2016. Tiada arahan diberikan oleh PKP untuk Plaintif-Plaintif memfailkan afidavit selepas 23-5-2016. [15] Mahkamah ini bersetuju dengan peguam Plaintif-Plaintif bahawa Afidavit Jawapan (II) Defendan Pertama dan Afidavit Lee Kwee Ley tersebut telah diserahkan kepada peguamcara Plaintif-Plaintif pada hari Jumaat 20.5.2016 pada jam 3.36 petang dan melalui tangan pada jam 4.40 petang. Maka penyerahan kedua-dua afidavit tersebut adalah dianggap diserahkan pada keesokan harinya pada 23.5.2016 hari Isnin. Oleh itu, hari terakhir bagi Plaintif-Plaintif memfailkan jawapan adalah pada 6.6.2016. Oleh itu, kedua-dua afidavit Plaintif tersebut telah difailkan pada 2.6.2016 di dalam tempoh masa yang ditetapkan. (Sila lihat: Aturan 3 Kaedah 4 KKM 2012 memperuntukkan: “Masa tamat pada hari kelepasan mingguan (A. 3, k. 4) 4. Jika masa yang ditetapkan oleh Kaedah-Kaedah ini, atau oleh mana-mana penghakiman, perintah atau arahan, untuk melakukan apa-apa perbuatan di Pejabat Pendaftaran tamat pada hari kelepasan mingguan atau hari lain yang Pejabat Pendaftaran itu ditutup, dan oleh sebab itu perbuatan itu tidak dapat dilakukan pada hari tersebut, perbuatan itu adalah mengikut masa sekiranya dilakukan pada keesokan harinya apabila Pejabat Pendaftaran dibuka”.) 12    [16] Kalau apapun, sekiranya wujud mana-mana tinggalan atas format atau ketakpatuhan KKM 2012, Aturan 1A dan Aturan 2 KKM 2012 KKM 2012 memperuntukkan kuasa budi bicara Mahkamah untuk mempertimbangkan dan menentukan samada tinggalan-tinggalan atau ketakpatuhan itu menimbulkan prejudis/ mudarat atau tidak kepada pihak-pihak. Apa yang penting adalah kepentingan keadilan. Aturan 1A dan Aturan 2 KKM 2012 jelas memperuntukkan berikut: Aturan 1A MAHKAMAH ATAU HAKIM HENDAKLAH MEMBERI PERHATIAN TERHADAP KEADILAN Perhatian hendaklah terhadap keadilan (A.1A) Dalam mentadbir Kaedah-Kaedah ini, Mahkamah atau seseorang Hakim hendaklah memberi perhatian pada kepentingan utama keadilan dan tidak hanya kepada ketidakpatuhan teknikal dengan Kaedah-Kaedah ini. Aturan 2 Ketidakpatuhan Kaedah-Kaedah (A. 2, k. 1) 1. (1) Jika, pada memulakan atau bertujuan untuk memulakan apa-apa prosiding atau pada mana-mana peringkat dalam perjalanan atau yang berkaitan dengan apa-apa prosiding, telah berlakunya, oleh sebab apa-apa perkara yang dilakukan atau tidak dilakukan, yang tidak mematuhi kehendak Kaedah-Kaedah ini, ketidakpatuhan itu akan dikira sebagai suatu ketidakteraturan dan tidaklah membatalkan prosiding itu, apa-apa langkah yang diambil dalam prosiding itu, 13    apa-apa langkah yang diambil dalam prosiding itu, atau apa-apa dokumen, penghakiman atau perintah di dalamnya. (2) Kaedah-Kaedah ini adalah suatu kanun tatacara dan tertakluk kepada objektif utama bagi membolehkan Mahkamah menguruskan kes dengan adil. Pihak-pihak itu dikehendaki untuk membantu Mahkamah bagi mencapai objektif utama ini. (3) Mahkamah atau Hakim boleh, atas alasan bahawa telah berlakunya suatu ketidakpatuhan yang sedemikian sebagaimana yang disebut dalam perenggan (1), dan atas apa-apa terma tentang kos atau selainnya sebagaimana yang difikirkan adil oleh Mahkamah atau Hakim, dengan mengambil kira objektif utama Kaedah-Kaedah ini, menjalankan budi bicaranya di bawah Kaedah-Kaedah ini untuk membenarkan apa-apa pindaan, sekiranya ada, untuk dibuat dan membuat apa-apa perintah, sekiranya ada, dalam menguruskan prosiding itu secara umum sebagaimana yang difikirnya patut oleh Mahkamah atau Hakim untuk membetulkan ketidak teraturan itu. (Sila lihat: Structural Concrete Sdn Bhd & ors v Wing Tiek Hildings Bhd (1997) 1 CLJ 300 - “It is to be noted that the issue of late filing shall not be a problem unless the adverse party raises an objection. If he does not do so and takes a step in the action, the noncompliance will be regarded as having been waived. If an objection is taken, the Court will take the necessary steps under O.2. This will call for an exercise of discretion which would be appropriately exercised in the circumstances …”)(Sila lihat juga: i. Chong Keat Realty Sdn Bhd v. Ban Hin Lee Bank Bhd [2003] 3 CLJ 532. ii. In the High Court of Malaya At Kuala Lumpur Originating Summons No.:S7-2A-1568-2007 Karisma Saujana Sdn Bhd v. Albert A/L Antoni Tass. iii. United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2001] 2 CLJ 31). [17] Di dalam menentang permohonan Plaintif-Plaintif, Defendan Pertama di dalam afidavit-afidavitnya telah mendakwa bahawa beliau 14    mempunyai hak/kepentingan benefisial terhadap bahagian Si Mati 1 atas hartanah tersebut dan Si Mati 1 telah memegang hartanah tersebut atas amanah pihak Defendan Pertama dan suami beliau. Dakwaan Defendan Pertama tersebut adalah bersandarkan pengataan-pengataan berikut: i. Suami Defendan Pertama bernama Lee Ah Kow (Si Mati 2) telah meninggal dunia pada tahun 2012. Defendan Pertama telah berkahwin dengan Si Mati 2 pada tahun 1965. Selepas berkahwin, Defendan Pertama dan Si Mati 2 tinggal dengan ibubapa Si Mati 2 dan adik-beradik Si Mati 2 di rumah keluarga Si Mati 2 di No. 13, Kampung Baru, Batu 11 Cheras. ii. Si Mati 1 adalah merupakan abang kedua kepada Si Mati 2. Mereka mempunyai 11 orang adik-beradik. iii. Pada lebih kurang tahun 1979, Si Mati 1 telah menawarkan kepada Si Mati 2 dan Defendan Pertama untuk membeli bahagian tak bahagi lot tanah kosong daripadanya berkeluasan 6,807.50 hartanah tersebut dengan harga RM13,000.00. 15    iv. Si Mati 1 telah membuat representasi, bersetuju dan berjanji kepada Defendan Pertama dan Si Mati 2 bahawa pindahmilik nama akan dibuat apabila pecah bahagian bagi pengisuan suratan hakmilik individu diisukan oleh pihak berkuasa berkenaan dan bahawa sementara menunggu pengisuan suratan hakmilik individu tersebut, Si Mati 1 memegang hartanah tersebut atas amanah untuk Defendan Pertama dan Si Mati 2. v. Atas representasi, persetujuan, janji dan dorongan, Si Mati 1 Defendan Pertama dan Si Mati 2 telah bersetuju untuk membeli hartanah tersebut. Bayaran penuh harga jual beli sebanyak RM 13,000-00 tersebut telah dibuat secara tunai kepada Si Mati 1 pada tahun 1979 melalui gaji Defendan Pertama dan Si Mati 2 sebagai pekerja pembinaan dan penoreh getah serta pinjaman daripada adik-beradik Defendan Pertama. vi. Kemudiannya Defendan Pertama dan Si Mati 2 telah mendirikan dua (2) unit rumah atas hartanah tersebut pada tahun 1980 dengan kos pembinaan sebanyak RM25,000,00. Kos RM25,000.00 tersebut adalah ditanggung penuh oleh Defendan 16    Pertama dan Si Mati 2. Si Mati 1 sendiri dan pekerjanya telah dilantik untuk membina dua (2) unit rumah tersebut. vii. Satu unit rumah tersebut didiami oleh Defendan Pertama dan Si Mati 2 bersama anak-anak mereka sejak 1982 sehingga kini. Satu unit rumah lagi telah sewakan kepada pihak ketiga dengan sewa bulanan RM 250-00 untuk membayar hutang pinjaman daripada adik-beradik DefendanPertama. Segala bayaran untuk membaiki, mengubahsuai, meningkatkan nilai, memelihara dan menjaga hartanah tersebut adalah ditanggung oleh Defendan Pertama dan Si Mati 2. viii. Si Mati 2 telah meninggal dunia pada 2012. Sehingga kini nama Defendan Pertama dan Si Mati 2 masih belum dapat didaftarkan sebagai pemilik berdaftar bagi hartanah tersebut kerana suratan hakmilik individu untuk hartanah tersebut masih belum diisukan. [18] Defendan Pertama juga di dalam Afidavit Jawapannya (Kandungan 4) telah membuat dakwaan bahawa pindahmilik hartanah tersebut 17    kepada Plaintif-Plaintif berdasarkan Wasiat terakhir Si Mati 1 adalah tanpa pengetahuan Defendan Pertama dan Si Mati 2. [19] Di perenggan 18 Kandungan 4nya, Defendan Pertama telah menuntut balas terhadap Plaintif-Plaintif dengan memohon antara- lain relif-relif berbentuk deklarasi. [20] Defendan Pertama telah juga mendakwa terdapat perjumpaan Plaintif Pertama dan anak-anak beliau mengenai penyelesaian dan untuk ini anak perempuan Defendan Pertama, Lee Kwee Ley telah memfailkan dua afidavit yakni Kandungan 7 dan Kandungan 11. Di dalam Kandungan 11, Lee Kwee Ley telah mengeksibitkan Laporan Penilaian bertarikh 20.5.2013 yang dikeluarkan oleh Sr. Azuan Abu Mansur dari MacReal International. Lee Kwee Ley juga telah mendakwa laporan penilaian hartanah tersebut telah diberikan oleh Plaintif Pertama kepada abangnya bagi tujuan penyelesaian. [21] Berasaskan alasan-alasan ini, adalah menjadi dakwaan Defendan Pertama bahawa beliau dan anak-anaknya mempunyai hak dan 18    kepentingan benefisial ke atas hartanah tersebut setakat bahagian Si Mati 1. Penghujahan Peguam Defendan [22] Berdasarkan pengataan-pengataan Defendan Pertama dan anaknya tersebut, adalah dihujahkan bagi pihak Defendan Pertama bahawa permohonan Plaintiff-Plaintif tidak boleh dibenarkan atas alasan- alasan berikut: i. terdapatnya fakta-fakta dan isu-isu serius yang dipertikaikan dan ianya melibatkan isu-isu “equitable fraud” dan “constructive trust”. Isu-isu ini perlu dibicarakan dengan pemanggilan saksi-saksi dan p tidak boleh diselesaikan melalui Saman Pemula; ii. tuntutan Plaintif-Plaintif dihalang oleh had masa; dan iii. terdapat perbincangan di antara Plaintif Pertama dan anak-anak Defendan Pertama. 19    Alasan i : terdapatnya fakta-fakta dan isu-isu serius yang dipertikaikan dan ianya melibatkan isu-isu “equitable fraud” dan “constructive trust”. Isu-isu perlu dibicarakan dengan pemanggilan saksi-saksi dan p tidak boleh diselesaikan melalui Saman Pemula; [23] Adalah dihujahkan bagi pihak Defendan Pertama bahawa berdasarkan pengataan-pengataan Defendan Pertama, maka Defendan Pertama mempunyai hak benefisial terhadap bahagian Si Mati 1 di atas hartanah tersebut atas dakwaan pembelian hartanah tersebut daripada Si Mati 1 pada 1979. Justeru itu, wujud pertikaian fakta-fakta yang membangkitkan isu-isu serius equitable fraud dan constructive trust yang perlu dibicarakan dengan pemanggilan saksi- saksi untuk memberi keterangan. Untuk hujahan ini peguam Defendan Pertama merujuk kepada kes Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217. Alasan ii: Tuntutan Plaintif-Plaintif dihalang oleh had masa 20    [24] Peguam Defendan Pertama menghujahkan bahawa tuntutan Plaintif- Plaintif adalah dihalang oleh had masa menurut Akta Had Masa 1953, dihalang oleh prinsip estoppel dan atau ekuiti. Peguam Defendan Pertama juga menghujahkan bahawa tuntutan Plaintif- Plaintif telah dipadamkan (“entinguished”) atau hilang atau ditinggalkan (“abandoned”) atau dilepaskan (“given up”) melalui ketidakrajinan (“laches”) dan atau persetujuan (“acquisescence”). Hujahan peguam Defendan Pertama ini adalah bersandarkan pengataan-pengataan berikut: a. Si Mati 1 dan atau Plaintif-Plaintif tidak pernah meminta sewa daripada Defendan Pertama dan atau mendiang Suami Defendan Pertama sejak tahun 1980 sehingga tindakan ini difailkan; b. Si Mati 1 semasa hayatnya tidak pernah menuntut hak dan kepentingan ke atas Hartanah tersebut; c. Si Mati 1 semasa hayatnya tidak pernah mengemukakan apa-apa bantahan atau permintaan atau tuntutan atas Hartanah tersebut daripada Defendan Pertama dan Mendiang Suami Defendan Pertama; 21    d. Si Mati 1 semasa hayatnya tidak pernah melakukan apa-apa untuk menuntut hak dan kepentingan ke atas Hartanah tersebut; e. Defendan Pertama dan keluarganya mempunyai posesi penuh ke atas Hartanah tersebut sejak 1980 sehingga sekarang; f. Plaintif-Plaintif telah berlewatan secara serius dan melampau dan atau secara mala fide dengan enggan dan atau gagal mengemukakan tuntutan-tuntutannya (yang dinafikan) dalam tempoh masa melebihi 36 tahun sejak 1980 dan atau sepanjang hayat Lee Ah Pir atau Mendiang Suami Defendan Pertama. Alasan iii: Terdapat perbincangan di antara Plaintif Pertama dan anak- anak Defendan Pertama. [25] Peguam Defendan Pertama telah menghujahkan terdapat perbincangan penyelesaian di antara anak-anak Defendan Pertama dan Plaintif Pertama berkenaan pampasan untuk hartanah tersebut kerana Plaintif-Plaintif ingin membuat pembangunan di atas hartanah tersebut. 22    Penghujahan Peguam Plaintif-Plaintif [26] Adalah dihujahkan oleh peguam Plaintif-Plaintif bahawa hak dan ketuanpunyaan Plaintif-Plaintif sebagai pemilik berdaftar yang sah hartanah tersebut tidak boleh dipertikaikan dan disangkal seperti yang tertera di Suratan Hakmilik Eksibit “KGE-2” di Kandungan 2. Peguam Plaintif-Plaintif telah merujuk kepada kes-kes berikut: i. Holee Holdings (M) Sdn Bhd v. Chai Him & Ors [1997] 1 LNS 424 ii. Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ 269 iii. Teh Bee v. K Maruthamuthu [1977] 2 MLJ 7 [27] Peguam Plaintif-Plaintif menghujahkan seterusnya bahawa dakwaan Defendan Pertama hartanah tersebut telah dibeli oleh Defendan Pertama dan Si Mati 2 daripada Si Mati 1 pada harga RM 13,000.00 pada tahun 1979 adalah semata-mata pengataan kosong yang tidak disokong oleh sebarang bukti yang kukuh. [28] Peguam Plaintif-Plaintif telah menghujahkan lagi bahawa berdasarkan dokumen hakmilik tanah tersebut, Plaintif-Plaintif telah 23    didaftarkan sebagai pemilik berdaftar hartanah tersebut sebagai waris-waris sah Si Mati 1 (anak-anak/isteri Si Mati 1) selaras dengan peruntukan undang-undang. Adalah sangat jelas bahawa pindahan hakmilik yang dilaksanakan adalah berdasarkan kepada Wasiat Terakhir Si Mati 1 bertarikh 15.10.2010 dan juga Geran Probet bertarikh 11.4.2013 yang telah dikeluarkan kepada Plaintif Kedua. [29] Di dalam Wasiat Terakhir Si Mati 1 juga, adalah dihujahkan oleh peguam Plaintif-Plaintif tiada langsung tercatat nama Defendan Pertama ataupun Si Mati 2, malahan di dalam hal Wasiat Terakhir Si Mati tersebut Defendan Pertama di dalam afidavit-afidavit tidak menafikan langsung menafikan bahawa nama beliau ataupun Si Mati 2 tidak disebut disebut di dalam Wasiat Akhir tersebut. [30] Adalah menjadi hujahan peguam Plaintif-Plaintif bahawa memandangkan Defendan Pertama tidak mempunyai apa-apa kepentingan atau hak terhadap hartanah tersebut, maka pendudukan Defendan Pertama di atas hartanah tersebut adalah satu pencerobohan dan ianya merupakan satu pendudukan yang tidak sah. 24    [31] Plaintif-Plaintif telah menafikan sekeras-kerasnya pengataan yang didakwa oleh Defendan Pertama bahawa mereka telah tinggal lama dengan keluarga Si Mati 2 di No. 13, Kampung Baru, Batu 11 Cheras (rumah No.13 tersebut) sedangkan Defendan Pertama dan Si Mati 2 hanya tinggal di rumah No. 13 hanya satu tahun lebih sahaja, malahan rumah No.13 tersebut bukanlah merupakan sebahagian hartanah tersebut. [32] Plaintif Keempat seterusnya menafikan bahawa suaminya Si Mati 1 telah menjual hartanah tersebut dan tidak pernah menerima apa-apa wang daripada Defendan Pertama mahupun Si Mati 2. Malahan, suaminya tidak pernah berbincang dengannya untuk menjual hartanah miliknya itu kepada mana-mana pihakpun. [33] Berkaitan dengan dua (2) unit rumah-rumah kayu yang terdapat di atas hartanah tersebut, Plaintif Keempat telah menyatakan bahawa rumah kayu-kayu tersebut sebenarnya adalah merupakan rumah pekerja (“workers’ quarters”) yang telah dibina sepenuhnya oleh Si Mati 1 bagi pekerja-pekerjanya selepas beliau membeli hartanah tersebut. Malahan Defendan Pertama dan Si Mati 2 telah tinggal 25    sebagai pekerja kepada Si Mati 1 dan atas sebab itulah Si Mati 1 semasa hidupnya tidak pernah meminta sewa daripada Defendan Pertama mahupun Si Mati 2. [34] Mengenai perbincangan yang dihadiri oleh Plaintif Pertama dengan anak-anak Defendan Pertama, Plaintif Pertama menegaskan bahawa perbincangan itu sebenarnya telah dihadiri beliau atas permintaan anak-anak Defendan Pertama dan di dalam perbincangan tersebut, Plaintif Pertama telah meminta anak-anak Defendan Pertama menunjukkan bukti-bukti dan asas-asas hak kepentingan mereka ke atas Hartanah tersebut. Plaintif Pertama menafikan ada membuat perbincangan pembayaran apa-apa pampasan kepada mana-mana pihak pun. Keputusan Mahkamah [35] Mahkamah ini perlu menyatakan di dalam kes ini, walaupun terdapat lima afidavit telah difailkan oleh Defendan Pertama untuk menentang permohonan Plaintif-Plaintif namun penelitian rapi terhadap kelima- lima afidavit-afidavit tersebut mendapati bahawa afidavit-afidavit 26    tersebut hanya mengandungi naratif pengataan-pengataan Defendan Pertama dan anak perempuan tanpa apa-apa keterangan dokumentar yang menyokong pengataan-pengataan tersebut. [36] Mahkamah ini bersetuju dengan hujahan peguam Plaintif-Plaintif bahawa isu equitable fraud dan constructive trust yang ditimbulkan oleh Defendan Pertama di dalam Afidavit Jawapan (III) yang diikrarkan pada 15.6.2016 adalah sesuatu yang afterthought. Mahkamah berpandangan begitu atas alasan-alasan berikut: (i) isu-isu ini hanya telah ditimbulkan oleh Defendan Pertama pada saat-saat akhir di perenggan 16, Afidavit Jawapan (iii)nya (Kandungan 10) yang hanya diikrarkan pada 15.6.2016. Perlu Mahkamah ini menegaskan disini bahawa di dalam relif tuntutan balasnya di Kandungan 4, Defendan Pertama langsung tidak menimbulkan apa-apa mengenai dakwaan equitable fraud. (ii) di dalam kes ini, Si Mati 2 telah meninggal dunia pada tahun 2012 mendahului kematian Si Mati 1 yang telah meninggal 27    dunia pada tahun 31.1.2013. Sekiranya, dakwaan ini benar, apabila Si Mati 2, Defendan Pertama yang kononnya telah membeli bahagian Si Mati 1 semestinya melaksanakan sesuatu untuk menguatkuasakan hak mereka tersebut dan paling tidak pun pergi berjumpa Si Mati 1 untuk memindahmilik bahagiannya kepada mereka berdua. Ini tidak langsung dibuat oleh Defendan, ataupun Defendan Pertama boleh berjumpa Plaintif Keempat sebagai isteri Si Mati 1 memaklumkan beliau berkenaan transaksi pembelian sekiranya benar-benar berlaku. Sekurang-kurangnya apabila Si Mati 1 telah meninggal dunia dengan Si Mati 2 telah meninggal terlebih dahulu, kalau benar mereka telah membeli hartanah tersebut, demi menjaga kepentingannya Defendan Pertama hendaklah mendaftarkan kaveat. Namun, ini tidak dilaksanakan oleh Defendan Pertama. Lagipun, adalah sesuatu yang tidak logik/menasabah bahawa perkara equitable fraud dan contructive trust hanya baru ditimbulkan di saat akhir sekiranya benar pengataan-pengataan Defendan Pertama tersebut sejak dari mula lagi Defendan Pertama mengetahui akan perkara tersebut dan menyatakan 28    dengan tegasnya di dalam afidavitnya pada mula-mula sekali menentang permohonan Plaintif-Plaintif. (iii) Perlu juga Mahkamah ini menyatakan bahawa Afidavit Jawapan (III) Defendan Pertama (Kandungan 10) dan Afidavit Lee Kwee Ley (No. 2) Kandungan 11 yang diikrarkan dan difailkan pada 15.6.2016 juga adalah afidavit-afidavit yang yang telah difailkan Defendan Pertama di luar tempoh masa yang ditetapkan oleh PKP. [37] Adalah menjadi dapatan Mahkamah ini, keterangan yang tidak dapat disangkal di dalam kes ini adalah, Plaintif-Plaintif adalah pemilik- pemilik berdaftar yang sah bagi hartanah tersebut. Eksibit ‘KGE-1’ dan ‘KGE-2’ di dalam Kandungan 2 jelas menunjukkan ketuanpunyaan Plaintif Pertama dan ayahnya, SI Mati 1 terhadap hartanah tersebut yang kemudiannya dipindahmilikkan kepada Plaintif-Plaintif yang merupakan anak /isteri beliau. Bahagian Plaintif Pertama adalah ternyata lebih besar daripada Plaintif-Plaintif lain kerana beliau telah mendapat pindahmilik bahagian Selamah yang telah dibeli beliau pada tahun 2007. 29    [38] Plaintif-Plaintif telah memperolehi hak ke atas hartanah tersebut daripada Si Mati 1 apabila Si Mati 1 meninggal dunia pada 31.1.2013. Selepas kematian SI Mati 1, Plaintif Kedua, menurut Wasiat Terakhir Si Mati 1 telah memfailkan petisyen bagi pengeluaran geran probet bagi mentadbir harta pesaka Si Mati 1. Bersandarkan Wasiat Terakhir Si Mati 1, Plaintif Kedua sebagai wasi telah membuat pindahmilk. Seperti yang tercatit di dokumen hakmilik. Plaintif-Plaintif telah dijadikan tuanpunya-tuanpunya berdaftar hartanah tersebut pada 29.11.2013. Ketuanpunyaan Plaintif-Plaintif telah didaftarkan ke atas hartanah tersebut atas suratcara-suratcara yang teratur. [39] Mahkamah ini juga mendapati bahawa tiada sebarang bukti telah dikemukakan oleh Defendan Pertama bahawa ketuanpunyaan Plaintif-Plaintif ke atas hartanah tersebut diperolehi secara frod atau melalui transaksi yang tidak sah. [40] Mahkamah ini bersependapat dengan peguam Plaintif-Plaintif bahawa pengataan Defendan Pertama yang beliau dan Si Mati 2 telah membeli bahagian Si Mati 1 atas hartanah tersebut dan Si Mati 30    1 adalah Pemegang Amanah bagi hartanah tersebut bagi pihaknya dan suaminya, adalah pengataan kosong semata-mata kerana tidak disokong oleh mana-mana keterangan pun apatah lagi keterangan dokumentar (bare essertion). Mahkamah ini merujuk kepada kes John Wallingford v. The Directors of the Mutual Society [1880] 5 AC 685, di mana Lord Blackburn di dalam penghakimannya di muka surat 704 telah berkata seperti berikut: “I think that when the affidavits are brought forward to raise that defence, they must, if I may use the expression, condescend upon particulars. It is not enough to swear, " I say I owe the man nothing " Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so. So again, if you swear that there was fraud, that will not do. It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the Judge that those are facts which make it reasonable that you should be allowed to raise that defence. And in like manner as to illegality, and every other defence that might be mentioned. So looking at the affidavits (they are very long and I will not go through them) which were used before Mr. Justice Manisty, I think that in none of those particulars did the appellant satisfy the burden that was cast upon him. He makes 31    general statements of fraud, but nowhere does he condescend upon any particular of fraud, such as in my mind, if I had been in Mr. Justice Manisty's place, would have made me think that it was at all fit that he should be allowed to depend upon that ground. There are long statements resulting in saying that this society was illegal upon various grounds, which I cannot follow at all. One ground, among others, is, because there was a drawing of lots on one occasion, therefore it was illegal as coming under the Lottery Acts. I cannot think that that was a good ground of defence.” (Sila lihat juga: Fabrique Ebel Societe Anonyme v. Sykt. Perniagaan Tukang Jam City Port & Ors [1989] 1 CLJ (Rep) 537). [41] Mahkamah ini berpandangan sebegitu bukan sahaja kerana pengataan-pengataan itu tidak disokong oleh mana-mana keterangan tetapi juga atas tidak kelogikan pengataan-pengataan tersebut. Saya katakan pengataan-pengataan itu tiada logiknya atas alasan-alasan berikut: i. Defendan Pertama sendiri sebenarnya tidak tahu sebenarnya mengenai hartanah tersebut. Defendan Pertama hanya mengatakan bahagian Si Mati 1 telah dibelinya pada tahun 1979, tetapi tidak mengetahui lansung mengenai pembelian 32    bahagian Selamah oleh Plaintif Pertama pada tahun 2007. Pindahmilik telah dilaksana oleh Selamah kepada Plaintif Pertama pada 10.12. 2007 yang tertera di suratan hakmilik “KGE-2, Kandungan 2. ii. Geran Mukim (Borang 5DK) yang dikeluarkan oleh Pejabat Tanah telah dikeluarkan kepada Plaintif Pertama dan Si Mati 1 bagi Lot 266 kepunyaan mereka atas bahagian masing-masing yang tertera di atasnya telah dikeluarkan pada 22.8.2008. Keluasan tanah bagi Lot 266 adalah 20790.6919 meter persegi (5 Ekar 0 Rood 22000 Pole yang yang bersamaan dengan 223,790.90 kaki persegi). Di dalam Kandungan 4, Afidavit Jawapannya, Defendan telah merujuk kepada pembelian bahagian yang kononnya dibelinya dari Si Mati 1 pada keluasan yang spesifik iaitu 6807.50 kaki persegi. Mahkamah ini berpendapat, sekiranya tidak ada perjanjian bertulis dan tanpa sebarang dokumen adakah mungkin, Defendan Pertama boleh mengetahui keluasan sebenarnya yang dibelinya secara spesifik? Di dalam kes ini juga tiada bukti telah dkemukakan oleh Defendan Pertama menunjukkan 33    bahawa wujudnya pada bila-bila masa dari tahun 1979 hingga kematian Si Mati 1 pada tahun 2013 pengukuran telah dibuat bagi keluasan tanah yang konon dibelinya. Tambahan lagi, Mahkamah ini telah mengambil peluang mengira keluasan tanah yang didakwa telah dibeli oleh Defendan Pertama dan Si Mati 2 berbanding keseluruhan hartanah tersebut. Keluasan yang didakwa dibeli oleh Defendan Pertama adalah hanya 3.04% berbanding dengan keseluruhan tanah. Ini hanya peratusan yang sangat kecil berbanding keselurahan tanah. Justeru, jika benar terdapat pembelian tanah antara Defendan Pertama, Si Mati 2 dan Si Mati 1, maka, dengan tanah yang tidak pernah diukur, keluasan yang didakwa Defendan Pertama adalah tidak munasabah untuk ketiga-tiga pihak boleh bersetuju. Kalau benar-benar ada penjualan dan pembelian pun ukuran keluasan tanah pada tahun 1979 sepatutnya sebagai contohnya adalah; ¼ ekar ke, 0.1 ekar ke, 0.2 ekar ke atau sebagainya dan bukannya 6803.50 kaki persegi seperti yang didakwa oleh Defendan Pertama. Apatah lagi, hartanah tersebut adalah merupakan bahagian tanah yang tidak berbahagi. 34    iii. namun begitu, diandaikanlah benar hartanah tersebut telah dibelinya sejak tahun 1979, maka pastinya wujud resit-resit cukai tanah yang menunjukkan Defendan Pertama dan Si Mati 2 sama-sama telah membayar cukai tanah hartanah tersebut. Tidak ada langsung resit-resit cukai tanah telah dikemukakan oleh Defendan Pertama. Adalah sesuatu yang tidak logik dan munasabah untuk Si Mati 1 dari tahun 1979 sehingga kematiannya jika beliau telah menjual bahagiannya kepada Defendan Pertama dan Si Mati 2 terus membayar kesemua cukai tanah bagi hartanah teresebut tanpa meminta bahagian yang telah dibeli Si Mati 2 dan Defendan Pertama. iv. Defendan Pertama cuba mendakwa yang pembinaan rumah- rumah kayu di atas hartanah tersebut adalah atas usaha beliau dan Si Mati 2 yang meminta Si Mati 1 membinanya dengan perbelanjaan RM25,000.00 pada tahun 1980. Mahkamah perlu menyatakan bahawa Defendan Pertama tidak langsung menafikan bahawa Si Mati 2 adalah pekerja Si Mati 1 dan mengakuinya di perenggan 6 (j) Kandungan 4nya bahawa 35    suaminya (Si Mati 2) adalah pekerja pembinaan Si Mati 1. Adalah sesuatu yang menasabah bahawa sebagai majikan dan abang kepada Si Mati 2 dan sebagai seorang yang lebih mempunyai punca kewangan dan mempunyai tanah telah membangunkan dua rumah kayu tersebut sebagai rumah- rumah pekerja dan membenarkan Si Mati 2 dan keluarganya tinggal di salah sebuah rumah tanpa perlu membayar apa-apa sewaan hartanah tersebut. Mahkamah mendapati adalah sesuatu yang menasabah bahawa penghunian Defendan Pertama dan keluarganya di rumah tersebut adalah atas dasar Si Mati 2 adalah salah seorang pekerja Si Mati 1. Apabila Si Mati 1 telah meninggal dunia, Defendan Pertama tidak boleh lagi menghuni di rumah tersebut dan apatah lagi menyewakan kedua-dua rumah tersebut kepada pihak-pihak ketiga. v. Tidak ada keterangan langsung yang menyokong dakwaan Defendan Pertama bahawa beliau dan Si Mati 2 telah menyewakan sebuah rumah papan tersebut sejak tahun 1980 lagi dengan sewaan RM250.00 sebulan bagi membayar hutang pinjaman membina rumah-rumah tersebut kepada adik beradik 36    Defendan Pertama. Pengataan ini adalah pengataan kosong semata-mata. vi. Dakwaan Defendan Pertama yang beliau sekeluarga masih lagi tinggal di rumah kayu ini adalah tidak disokong oleh mana- mana keteranganpun dan pengataan ini jua dalah pengataan kosong semata-mata. [42] Di dalam kes, ini adalah sangat jelas dan ketara bahawa berdasarkan pengataan Defendan Pertama di dalam afidavit-afidavitnya, Defendan Pertama gagal untuk membuktikan hak dan kepentingannya ke atas hartanah tersebut. Undang-undang mengenai beban pembuktian adalah jelas dan jitu bahawa apabila Defendan Pertama membuat pengataan-pengataan mengenai hak dan kepentingannya ke atas hartanah tersebut, maka beban pembuktian terletak ke atasnya membuktikan kewujudan pengataan- pengataan tersebut dengan mengemukakan keterangan-keterangan mengenainya dan bukanlah sekadar pengataan kosong semata- mata. Di dalam kes ini pengataan-pengataan Defendan Pertama adalah nyata pengataan-pengataan kosong belaka. Di dalam 37    keadaan ini adalah tepat bagi Mahkamah ini merujuk kepada peruntukan seksyen 101 dan seksyen 102 Akta Keterangan 1950. Seksyen 101 dan seksyen 102 Akta Keterangan 1950 jelas memperuntukkan berikut: Seksyen 101 Akta Keterangan 1950 101.(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Seksyen 102 Akta Keterangan 1950 102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [43] Mengenai hujahan tuntutan Plaintif dihalang oleh had masa yang ditimbulkan oleh Defendan Pertama, adalah menjadi dapatan Mahkamah ini bahawa hujahan ini tidak mempunyai asas kerana 38    tuntutan yang dibuat oleh Plaintif-Plaintif adalah menurut Aturan 89 KKM 2013 yakni sebagai tuanpunya berdaftar hartanah tersebut dan menurut dokumen hakmilik, mereka telah menjadi tuanpunya berdaftar hartanah tersebut pada tahun 2013. Tuntutan Plaintif- Plaintif terhadap Defendan Pertama adalah untuk milikan kosong akan hartanah tersebut yang mana Defendan Pertama telah berada di hartanah tanpa keizinan Plaintif-Plaintif. Kalaupun ada keizinan pun untuk Defendan Pertama dan Si Mati 2 berada di atas hartanah tesebut adalah sebagai pekerja Si Mati 1. Selepas kematian Si Mati 2, Defendan Pertama tidak lagi berhak untuk berada di hartanah tersebut. [44] Mengenai dakwaan Defendan Pertama mengenai perbincangan dengan Plaintif Pertama dengan anak-anak Defendan Pertama. Plaintif Pertama telahpun menyatakan bahawa perbincangan ini adalah diminta oleh anak-anak Defendan Pertama sendiri dan Plaintif Pertama telah menghadirinya bagi meminta bukti tuntutan Defendan Pertama terhadap Plaintif-Plaintif. Walau apa pun, Plaintif Pertama bukanlah pihak yang mempunyai otoriti untuk bertindak bagi pihak- pihak Plaintif. 39    [45] Percubaan anak perempuan Defendan Pertama untuk membuktikan adanya perbincangan penyelesaian antara anak-anak Defendan Pertama dan Plaintif Pertama dengan merujuk kepada satu Laporan Penilaian, yang telah diberikan kepada abangnya Lee Chin Keong oleh Plaintif Pertama seperti Eksibit “LKL-1’, Kandungan 11. Adalah menjadi dapatan Mahkamah bahawa rujukan kepada Laporan Penilaian ini adalah dibuat dengan tidak suci hati. Mahkamah berkata begitu atas alasan-alasan berikut: i. Melihat kepada Laporan Penilaian ini, ianya tidak jelas untuk siapa dan untuk tujuan apa Laporan ini dibuat. Di samping itu Laporan Penilaian telah disediakan oleh MacReal International pada tahun 2013. Perbincangan-perbincangan yang berlaku adalah pada tahun 2016. ii. Peguam Plaintif-Plaintif telah menyatakan bahawa Laporan Penilaian tersebut tidak ada kena mengena dengan kes ini ataupun dengan apa-apa perbincangan tetapi ianya telah diserahkan kepada peguam Defendan untuk kes terdahulu yakni tindakan Writ Saman No. 22NCVC-196-04/2015. 40    [46] Berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini, bahawa Plaintif-Plaintif sebagai tuanpunya berdaftar hartanah tersebut, ketuanpunyaan Plaintif-Plaintif terhadap hartanah tersebut adalah jelas terbukti dan tidak disangkal melalui keterangan- keterangan afidavit dan dokumentar. (Sila lihat kes-kes yang dirujuk oleh peguam Plaintif-Plaintif i. Holee Holdings (M) Sdn Bhd v. Chai Him & Ors [1997] 1 LNS 424 ii. Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ 26 iii. Teh Bee v. K Maruthamuthu [1977] 2 MLJ 7) [47] Mahkamah ini juga bersependapat dengan peguam Plaintif-Plaintif bahawa kalaupun ada tuntutan yang diluar had masa, ianya adalah tuntutan balas Defendan Pertama terhadap Plaintif-Plaintif. [48] Maka, jelas di dalam kes ini Defendan Pertama dan penghuni rumah yang mendiami rumah-rumah kayu di atas hartanah tersebut adalah penceroboh yang telah menduduki hartanah tersebut tanpa kebenaran dan persetujuan Plaintif- Plaintif dan pendudukan Defendan-Defendan adalah pendudukan yang tidak sah. (Sila lihat 41    i. Zaibar Auto (M) Sdn Bhd & Anor v Shell Malaysia [1996] 2 MLJ 221 ii. Ng Ben Thong & Ors v Krishnan a/l Arumugam [1998] 5 MLJ 579). [49] Atas alasan-alasan di atas, permohonan Plaintif-Plaintif di Kandungan 1 dibenarkan bagi perenggan (1) (2) (3) dan (4). Tuntutan Balas Defendan Pertama di perenggan 18 Afidavit Jawapan Defendan (Kandungan 4) adalah ditolak. Mahkamah ini memerintahkan kos global sebanyak RM10,000.00 dibayar oleh Defendan Pertama kepada Plaintif-Plaintif. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (NCVC 8) Selangor Darul Ehsan Bertarikh 1 Julai 2016 42    Peguam Plaintif - Tetuan M. Sujata & Associates Encik Hargopal Singh Puan Sujata Mohanadas Peguam Defendan - Tetuan H.Y. Lee & Co Encik Lee Hong Yap

Tika 2.6.0

42(S)-41-04/2014, 42(S)-64-05/2014, 42(S)-82-07/2014)

PERAYU CHAI RUONG HUEI RESPONDEN PENDAKWARAYA

28/06/2016

YA DATO' NORDIN BIN HASSAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8f6f750b-582e-425c-87c1-f4f3c18d358d&Inline=true

DALAM MAHKAMAH TINGGI MALAVA DI KHALA LUMFLIR DALAM WILAYAH PERSEKUYUAN, MALAVSIA RAVUAN JENAVAH NO:41 s -41-04I2|l14 12 s -64-05/2015 & :2 s -32-07/2014. ANTARA CHAI RUONG HUEI PERAVU LAWAN PENDAKWARAVA RESPONDEN FENGHAKIMAN Pendahuluan [1] Perayu dalam kes \m can» dnbvcarakan dalam 3 perblcavaan bevasmgan ax Mankaman Sesyen bagl kesakman sepem per\udunan— perluduhan benkut u) Kn No. 41(5)-41-04/2014 (a7 Penudumn Panama keranz merogol Wong vee Mun paaa (552012 jam «Mu nag! a. My!-lama Hmel‘ Selapak, Kuala Lumpur mm xewanan dw bawah seksyen 375 Kanun Kaseksaan y (In) AB) (CD P-mmunau Kefluu kelana melakukan perselumman yang benenvangan dengan aluran mm iemadap Wong vee Mun pans 1592012 mm 1135 pig: a. Mynama Hate! Sevlapak‘ Kuah Lumpur 1aI|u kssamuan a1 bawah seksyen 377c Kamm Kesekszzn Pmuuuhan Klflgu kerana ma1axuxan kesalanan samun pads as 9 2012 am 11 45 pig: ‘am. sehuah I~Pad ]enzmz Apme dan sabuah maven mmm ;:nimi Nokla rmlnk Wow vse Mun lam: kesmahan a. bawah seklyen :92 Kanun Kesekszan Kn No. 42(sN4415I2n14 (at M 1-2) Plrluduhan Forum: ksrana memgov Pu: Tm: En pada 1592012 am 210 pelang at New Thvee Three Hole!‘ Chevas‘ Kuah Lumpur 1av\u kesalahan d1 hawah SEKSVEH 375 Kamm Keseksaan Plrtuduhan Ksdua kerana merogm Pua Tmg En pad: 1592012 jam 230 perang .a.1.. kesalahan an bawah seksyen 375 Kanun Keseksaan Fenudnhan Kotign kevana menum sebuah wan ]enama Apple mm»: Pua nng En mm xesmanan an Dawah seksyen 319 Kanun Keseksaan (II? mi) (N) Pad: 10 92:112. Pua Tmg En tmangsa} |eY2h menghamar e- mel yang mengemukakan bmdzla mangn Imluk sualu lawman ken: sepzrlm man yang dllawarkzn da\am Vaman sssawang ‘Aswa Fan Time’ Peksqasn yang dulawarkan adalah pekenazn ‘modelling Alamal e—me\ jug: dxperolem dan Iaman sesawang larsebul Fwd: 14a2m2, seorang wawam yang mempemensluan dm sebagm ‘Fiya‘ (clan mengn-mung. mangsa melahn le\e1:m din menyalakan [shah menahn e—me\ mangsa din memaklumkan umuk menamubual mangsa dw Leisure Man Cheras pada 1592012;am1 on lengahan ‘Faye’ wga memmla mangsa membzwa I-Pad dan telelan mn-mt semasa mengnamn (amubual berkenaan Pada 15 02012. wemn kuvang jam 1 an pelang mangsa Ielah pergt ks Lasure Mall Cherzs tersebuk den apablla llba a. mu. mangsa Ielah menelelon Faye Faye pma (elan menuma mangsa un|uk check m‘ ke bllvk hotel yang berhamplran Pads mwanya mangsa enggan bevbuat denmkuan letapl selelah perayu memmla Iulnng dan beqanu unluk membayar bahk dun bayavan hole! ceusem mangsa bersetuju nan menempah sehuah bmx d1 ‘Hole! 33‘ yang berhamplran dengan Lexsure Mall bevkenaan «am. x nombov 207 n (V) (VI) my (vm) (W) (X) Mangsa kemuman menghubungx Faye bagw memaklumkan hahaw: du (elah bevana a. men 33 m bum number 207 dan Faye memm|a mangsa menunggunya dalam bum bevkenaan saerusnyu. seseumng man menguuk pIn|u mun (ersebul flan apabna dmuka sehzgan Faye can mangsa mengecimkan Faye adalah psrlyu nrang (ersehm memperkenalkan dmnya dalam kes m. Mange: ma uuak menganan perayu sahamm nan lsnebui Se|a|alI perayu musuk ks dalam bmx herkenaln din barbual dengan mangsa, pevayu kemudvin la!-h memgul mangaa mm mp: kerelaan mangsa darn mengarahkan mingsz unluk menglkul kehendlknya jvki hdak mahu dlcederakin seman marogol rvungsa perayu omnax sekehk: can kernuman merogol mangs: nu kedua, jugs lanpa kerelaan mangn Selmah «u. mangsz melmll pavayu memakax pakalannya darn mengamw «amen bimbIL l—Pad flan wang RM50 no dan beg mangsa Ialu heredav dan bwllk hotel harsebul. Mangsa kenka flu menanws dw alas kah nan menulup tubulwya dengan senmm Selelah Nu. mangsa ke mnk an unluk mam. dan kemuman beredar keluar aari hole! Iersebul n (xi) Semnjulnya. mangs: xems ke rumah leman wenamnya, spa flan sambfl menangus mencemakan kqadnan yang berlaku o. mmah Aeman lehkwnyz wga. mangsa man menghuhunm 1bunya hag: msmaklumkan hahawa mangsa «swan ms.-mun dan dwogol (xu) Selerusnya mangn flvbawa kn hosplm unluk pemanklaln dzn hasul pemenkszan yang dllakukan alnh smo mendapiu aaa koyakan lama pad: hymen mzngn um sma jug: lehh mengambvl spesmn Im|uk uuln DNA aan kemaluln mugs: (xm; Upan DNA oleh arm knmu SF12 mandnpalv Iardapal DNA perayu pida Ipemmen yang mamml can kemaluan mangsa levwbul (xiv) Lzpamn polls mm Chara: report 20399/12 mga man dIbua| pm [5 32012 ‘am 703 rnalam m Balal Pulls Jalzn Dang Wingl (xv) Sehln mu‘ l-Pad dan Ielelan mmbn mangsa man dijual wen pariyu kepada spa ‘am: pemmk kedav W snap Sdn End a. Sg Wang Plaza sum Bmtzng Kuala Lumpur Kes Pembaln n [131 Kes pembelaan Du\a adalah sepem benkm (-) Perayu (elah mengenah mangsa pada hujung bulan Ogos 2012 alau awm bman September 2012 m) Pen: 15 92012, mangsa mengeqak pelayu keluar xe Lawsure Mall Cneus flan apahlla perayu berada ax Lexsuve Man, mangsa man menelelan pevayu unluk aaxang ke Hotel 33 flan memakmmkan ncmbor milk a. man mangsa berauz (In) Apablla Davida dalam hlllk hoiel Iauebul perayu dan mangsa (elah mengadakan hubungln seks dengzn kevellan mangsl (xv) Pnhak pemhslaan mg: memanggu aduoaunk peviyu mm 5132 dan so: yang memben keierangan antar: mn parzyu mempunyal (aman warm bemama Erma Fua lelaul max pemah benumpa flengan Enca Ks: Mo.4Z[S)-82-01I2fl14 (13) Seperll dmyilzkan lerdlhulu‘ bag: kes mu pevayu (Blah dmmuh dengm 2 pamlduhan wawu bag: k.esa\ahan memgox Lee Suk Mm nan mencun Wang mnan RM5ou on Sena sebum xemton himbn pada 25 wu 2010 an Hotel Rayale Bvnlang [u] Berdasarkan kelevangan saksl-saksl pendakwaan Kes pendakwaan Idalah sepem benkm up Pads hman Oklubev 2010. Lee Suk Meng (mangsa) aaa membuau permuhonan kena sememara melami Iaman web 14 HI) (m) (M ‘Asia Pan Twme‘ Pskeuaan yang mpcmzn ada\an sebagal ‘ushers! Mangsa kemuduannya (elah flmubungu oleh worang mam cm: yang menyamkan mgln menemubuan mangsa Lehkl Iersehut selamsnya Iemh menallpkan lamubunl unluk pekerjaan ‘usharef bag: jamuan makan maum sebuah syankal an Hmel Ewan: Evnang pads 25 102010 jam 12 on tengahan Mangsa kemudnin nerumu pevayu a. Hotel Royal: amnang :1. mans perlyu menyalnkin xemuxmx (evubul max sesual dladakan a. mm mm um msmmla mangsa menempzh tebuah ram :1. hotel hrxebul nu adiflah Kevan: perayu memakmmkan bzhaw: pefayu tarlupl mumbaw: nu pcngarman perayu Petayu jug: |elah membenkan mason oo unmk menempah mun hu|el nersabm Sdelah hvlvk Iersebul m Iempzh, perayu din mangsa man masuk ka mum berkenzan dan aanam hlllk lelsebul mangsa lelah dnragm mm lanpa kerelaan mangsa flan setelah nu, spam: mangsz keluar am am air selelah membersmkan dmnyz. mangsa menaapauwang mzngsa benumhh RMSOD co dan sebuah Ietelon mmbn |e\ah mlang Pada kemka mu pevayu llada lag! dawn nmk bevkenaan Selena: xejaman mangsa dwogol (evsebm. wavlu Vehxh Kuvang jam son pelang, mangsa le\ah pelgr xe mmah Kawannya Iallu SP2 dan memakmmkan mengenaw xqaman levsebut kepada sm samhll menangls Mangsa juga le\ah mene\e4on (eman is Ielaklnya dan sambnl rnenangls memaklumkan bahawa mangsa lelah mragol m sawarumnya. pada hen yang sama 25102010, jam 5:5 paling. mangsa «elem membuzl Vaporan pohs an Ema: Pans Dang Wang! dengan number rap-m msuuzwsve/1u (an) Kalevangin (olenswk berdzaarkan aruhsa swab kapas paaa dalam kemaluin mangaa yang mhua( oleh am. mm-a svv mendapan levd:pa| DNA rmhk perayu Kn P-mxnlun [15] Kaa pembelaan pma dapal dlvumuskan iepem uanxm u) Ferayu mengenah mangsa pada pertengahan Iahun zoos dan mangsa ada\ah leman wamla perayu Au) Perayu manavukan ma merngm alau melakukan hubungan sex: aengun mangsa Kapunmn Mamuman Inl nu) Buhuhung dengan aawaxu kos vayuan. prmmp undang-unflang adalah ,eIas bahawa dapalan «am oleh hakxm mam max akin mganggu kecuall dapzlan larssbm adalah was saw: aan nanammgan dengan kaievangan yang ma. Mahkamah Parsekuluan dalam as mm s 'Anwulbnhim v 5-» 5 Anon-uappw [2004] 1 cu 717 mamaxaskan sepem benkut IE I17! I13] ‘Cindy .n Inpellalt cow! dun nut and would not pm 5 Duke and MI gmng any further the moment n seas that the my judge says mat rs ms Vmdmg of /am u should go Miner and examml me zwdenoe and ms crrcumxlnncas under winch mm fmdmg rs mm. In 3.. wrvsrher to Durmw the wards omr ong (C1 Malaya) In He/rmm Smglvs cuss (supra) ‘mu: m suns!-nual and conwllllrrg manna yo: umgmrng -mn Ill- vinama. Olhwvvrsd m1 Judgment wauld ever be mvsrud M amsslvnn of my and me pmwsaon of s 37 cm 1954 Ma! anzppeal may he not Only an n quesmm anaw om Man on . quumzn mm or an 5 quaslran alrmud (cal and law wuum n. nmanvngflass “ Selaln nu, bag: kes-kes seksuak wa\au pun naaa perunlukan unnang— undang yang menyalakan pevlunya ma kelemvgan snkangan (adapt adalah sualu annaxan yang wi}ar umuk menelnl kevlerangan sckungan yang ada dalam kes neukaman Daham kes yang senng dlsandarkan olen peguanmexa ‘am; Dln v PP [1964] ML! an menyalakan ‘em ma dssrrammy rot aorvobaruncn nlma ewdonca or the plnucumx m a rape case ywnmn In any event has nut yet cryslu//vzod mlo somsmrng appmaclw-Ag a rule or ran and whrcrv rs SW 5 rule 0/ pruclrce and or Dmalrvzd) swmas not nun: ms harm: of ma wdrvass am Ivom m. rulwu of Ms offence New hast! been suggesledlhalllvs ewdsnw aim woman as such rrwavvably ca/rs far mmonnnnm H .5 women say: Ivar nanaang an been matclwd And n :71: rs mam: me can as rm uusmn or 5 convrdmn an such evwtervca Dung oven in attack for want of colrobomlrun /1, however we wmplams ufllavmg been mpod mnn bum pmdarvcv ma mm. dlmlrm ma! awdencs mm D: zunuaar-slid‘ Davam pada nu. Mahkamah mga ho\eh menenma kelerangan pengadu dalam sesualu kes saksual tanpa kelerangan snkangan sekwanya kelerangan pengadu Ceisebul ada\ah kledxbel darn mewkmkan nu selaraa. aengan perunlukan seksyen 134 Akla Keterangan 1550 yang menyatakarr wa aamaa/ar rvumnir av wvmesses :Ival/ In any we a. rsqmrufl for me pruaronny Mr’ [191 Parker: ml jug: ada dlsemuh dalzm kes Aziz Munamad Din v PP [1297] 1 CL] Supp. 521 yang amara lam menjelaskan smaa 134 ar me Evrdemz Ac! msa says ma: aa panmularol wmvsses mu m any case be rammed for the pmav L7.‘ any (so! ma semun lnslmnos ma wlll rimqmzad mum Inn! -my-an rm to o. mama and not aaanmr 0/71/18 mad for mrvobaralrvs lvtdance for ma prLw/ 9! any ram sum J, sand in vaamvu mm v. sum ar mam AIR mm 5:: l14mmuIaHvwmqIsrurt-ms amp 51s—svw On a mrmdornlron a/III: rshvam numnnm: and ma pmvvstuns Mme Evvdwvcn Act In: Iv!/owvnv Dllwmvlvmus mly be saruy slalsd :3 finnly sstshhshed — m m 121 As a genera/mil 3 Cam can and may acmn the nasnmany al . smgle wcmess thcmgh uncormboratsd on. crumble wmlass nufwavghlx In: tsatrmorvy ar . number of own wrlnuns of mawaam clvaructsr Ur:/ls: corvuboutrnn 1| msrxtnd upon by mm Cam mam mtmstsl on nomwbarallan ewaplm mes where ma nalmu a( me teslrmony 0/ ma srngle wamass mu requires as a ml: L1.‘ P'Ild5n¢e, mu mrnwbumflorl snaara an mmraa noon, far uama/e m the case 0:‘ n ma wrmess or an wnness whose ewasncs .s ma: av an acconwrca or ar an analogous clvariclir and Whemar mnobnmlmn D! My loslvmtmy an gmgts wvmrss rs av rs nut necessary musf aapana upon fact: an maamszanaas a/ each case and no geneIz( rule can Dr Ian: down In a mam lrha (nu ma much dwands Won mawaaar mscrenon arm. Judge before wnume me case oumu Curmtmrllron rs not . namaar term u smlnlv mam ‘cnnfirmllmn (see Drm¢1ora(Pua/rc Fmsvcmmn vHo:kev[1§7J]AC 295; The locus classmus on wlvaumoanls Io cormbmslrve ewdsncv rs ma uarobmrsd me oi R V Easkerv:/In (19151 2 ma ssa more my Rsadmg c4 urn aw ear wu ma mm m. avndnrma m aonunannon mm a. mnlflandmt mtrmnny wmm zflects ms wcusafl by cmmeclmq or rs:-amg lo canned mm Wflll me cnms rn umar wands, yr muit he ewdsocs wmch Imp/ac as mm mm rs Wm» confirms m mm: manna! pnmcmar not only (he svroemn me! me cnmu has been comrmtlsd mu also mm m. ynsonermmmltedrt‘ ‘ my Mahkamah Ruyuun flalam sum kas kesalahan mango! mm PF1wn. momma mm: Rldnzuln cm Ht:-nn mu) 1 cu 355‘ lelah mengimhn pandakiian hzhzwa “mun keg as seksua1bn\eh dlbuat lanpa keiarangan seknngin Ipahfla kalevangzn yang dlblnkan meh pengadu mm. amal mayzkmkan D1 mukasurnl 375 din :75 man lavsahul dmyztakan '12:: mm -9. pm! 1.4 pm pnndanguv um, nklrlnyl lwtinngun plngadu mun umuuauy con»/Inning‘, mum wan. mum uluull um». «um: ram mum-9-n -Mona-n Kam: barumu dmlvurv proposm .m4.ng-mm-ng yang rl-rvynrnkan a; damn m 7<1mnPIvv\q NM], . Wpomj A su? 55 (Mahkamah Trnggrfi apabfia Yang Puw Haw cu Detkara (1! ms 154 am y u/an lack yraauzm mmak: mm mm u ,; dangerous m mm/ml an 1». want: .4 m. camp/amaul mm. amass Mr Iv-damn VJ nmuxun/Vy Gnmplllmg at mwwa (Twig Kim M V mm; 2 sm :5 :15! 7:0 M, Pang 1/ wmssja sm :2 4a: m and 5m ‘Yang M. wzvyaei z su? 42 .1 so; mam, lhncuums mm nlmmuly mulmus ..».rmoa the we evvdenoe .2 me mwm hr 3 comnchon 77-: phrase mutually nompomugarzovrvmung, xmnplymanns mm». canwtavnanlx cwdance VIE! la comlmcvng mal m. umsecmmni saw was pvuwn mom reasmvnfle doubt, so/plyorv llle bass mm cvldslzs‘ " [241 Kemhaln kepada Kebga-hga kes vayuan dl hldapan Mahknmah Inn. sabllan yang d|hua| men Hakxm Mahkaman sesyen aualah :9 bemasarkan dapavan «am an penellllan langsung Asmadap keterzngm dan demennm saksmxa Iermama pengaflwpengadu [22] Bag: xas Nu 42(A+414:4/2014, mangsa mu Wong Yee Mun msmhen keierangan banawa mangsa man Imago! unu secara paksaan lanpa Kemuan mangsa an nmk nomhnr aoa. MyHome Halal dw senapak, Kuula Lumpm Mangsa menyalakan bahaw: periyu (e\ah memaksa mangu menghlsap kemaluan perayu din kemumannya perayu memasukkin Kemaman perayu ke dalam kemaluan mangsa Selahh kegadlsn rogol narsamu mangsa menuapau V-pad din xamon bnmbnnya talah Ming Kelelangan mangsa ml lldak Iergugal semasi dlsoflhalas mar. peguamhma {:3} Hakun Mzhkzmlh Sesyon (elah mambual dapalan bahaw: marvgsa zdalah searing saksl yang krembel aan ketevangannya dnenma [241 sevam mu, kelevangan mangsa berhubung kqadnan man im secara Mak Vingsung dusnkang uengan kelevangan abang uan mu marvgsa yang mmaxmmxan nleh mangsz menqenal kepadlan yang berlaku paaa han yang Sam: Pememahan abang uan mu manqsa mengenaw keadzan mzngsi yang senhasa menanqxs dan da\am keadaan lvauma menyoknng iakta hahawa mangsa man (mogul [251 SeYaIn Ilu laporan polls juqa |e1ah dmuax unmk pmak pahs mengambfl nndakan sewajamya Sekvanya hubungan seks dengan pevayu amuac secava yeta, hdak ad: sebab umuk mangsa memaklumkan kepada ahh xsmmanya dan mhak pohs kerana um akan hanya 2» (my Kes Nu. 42(5)-:2-nnzou 131 Pnrtuduvun P-mm. xevana memgo\ Lee Suk Mung pads 2510 2010 mu 1 15 pe|ang d1HaIe\RoyaIe Bmhng -auu kasalahan m hawah seksyen we Kanun Kesaksaan 1») Porludulun Kudun man: mencun wang lunm RM5nu on an «eleven blmbll .enama Sany Eumn mum Lee Suk Mmg pada 25102010 pm 1 15 paling an Hale! Royal: smug Iaulu karsahhan m bzwah seksyan 379 Kanun Kaseksaan [21 Satelah xeuga-«gs kes bevkenaan se\esz1 dvbwcarakarm Hakim Mihkimah Sesyen man membuat keputusan-kapumsan henkul 0) a.-.91 Kes No. 42(5)-4|-oalznu, Hakim Mahkzmah Sssyan lelah mensabnkan pevayu lemadap kemga-Inga pamlduhan m man: penuduhan kellga mu kesuahan iamun Ielah dlumda wen Ham Bncara kapada kesflahan mencun mm Kesikahan :11 biwah seksyen 376 Kanun Keseksaan dan memaluhkan hukumzn-hukuman nsnkm (a1 Penuduhan Panama, 1anu kesalahan merugux, perayu duahmkan hukuman penjara 15 cahun darn lankh mun hukum pads 16 3 201A dan s sebalan voxan membaw: kaaman kepada kemarga mangsa apabfla kqadwan Iersehut dnketahm umum [15] Selam nu‘ walanpun pememaaan mendipau hanya ad: koyakan Vama paaa hymen mangu (mp: sabarangan koylkan him‘ an lmak bermzknl naaa berhku penelrasl zakar perayu Knyakan limn dipal dqemskan eleh mangsa apablla menyaukan mangsa paman msngauakan hubungln seks dengzn lemsn Velakmya Dnkmv yang mememksl mingsa wga mak manyalakan hahawz um penauaai yang bellaku Apa ylng Vebm penlmg mzngn iendm telah member: katanngan bahuwa pevzyu Ielan memisukkan nkarnya kadmam kemaluan mangsa [211 Mamas: [ugh max mengerull perayu sebelum kapman berkenaan din kasamnman xexarangun yzng aaa max dapal menyokonu xenerangan pmak pembelaan bahiwa mangia aaavan leman wanna perayu Adxk-bemduk periyu lam: Sm dan sus juga mengesahkan lvdak pemah benumpa Ayaka Wong yang mxaxaxan aleh penyu adahh mangsa Kenerangan mereka udak dapal msmhantu un|uK memmbmkan keraguun Kapada kes penflakwaan [21] selam nu‘ bagi kesalahan mencun. keterangan mingsa dan SP(2 yang membeh wan aan (eVeVon mmbn rnangsa dan Persyu lelah membukhkan penuduhan um Tambahan pma perayu sendvl mengaku semasa d\soa\ba\as bzhawa perayu lelah mangamnn I—Pad darn le\elnn mmm mangsa tersebut 2; [29] Sehubungan nu‘ saya dapall aapacan ram Hakim Blcava admah beflandaskan ke|erav\gan yang aga nan udak xerdapal aparapa tevsmah man man Halurn Excara oxen nu juga, naaa aparapa masan unluk sabnan Hakwm Encavz bag! kenga-nga perluduhan kes W dlganggu Ku No. A2{S)-M-05/lull [:0] Selamsnya bemuhung fllngan ken Nn 42(S)—€A-DSIZOM. rnangsa wgfi man rnamben katelangan bihnwa mangs: |:\ah «mam olah may-A unluk melakukan huhungan seks dengan Ferayu a blink mzmbar 2:17, Ho|aI 33‘ cums. xuaxa Lumpur Kelerangan mzngsa menurqukkan mangn lelah dlrogol sebanyak nu: «an Mangsa jugs nampik psrayu mamzsukkan zakamya ke dalam ksmaman mangsa dalzm kedua-dui maman wgux Ierssbm Mangsa [Inga melmal sendm pevayu msngamw 1-Pad dan meign blrnlm mangsa lam beredav uan bmx hn1eHeusehu| [:1] Ham Bicava dalam kes ma jug: lelah msmbual aapacan hamwa mangsa ada\ah senrang saksx yang kvedlbel dan menenma xexeqngan mangsa [:21 Selam mu, ke|erang:n mangsa secara max langsung dlsokong o\eh xeman Ia\akI mangsa mm SP3, dan mu mangsa‘ SP2‘ yang dlmaklumkan uleh mangsa ksmdxan tersebm pafla nari yang sama flalam keadaan menangws 2: [:11 Pads nan yang sama 15 9 2012 ]am 7 ma malimy laporan pahs Ielah amum berhubung kqaman mgol aan mencun |evsebul [:4] Femenkszan aomr mendapal: knyakan lama pma hymen mangsa din Ierflipa| DNA pevayu pada spesqmen yang mamm dan dalum kemaluan mangsa Esra-saman kemungan loranslk. flan kelevangan mangs: Iendm, lakla penelvasw 1e\ah dlbukhkan dihm kes ml [35] Sslerusnya. kehvangan spa yang mumbell V-Pad dzn lemon mun mangsa dzn perayu plgi membukllkan perluduhan mencun xemmp mangsa [as] Kalerangin pambelaan pevzyu bzhawa mannsa adalah teman wandanya din hubungzn aeki yang dnnkukan zdalah denqin kerelaan mingsa adalah benenlangan dangln ketevangin yang ma din mg: celan «max dnenma c\eh Hakim Blunt: {:7} Bardasankan kasemruhan kelerzngany dipacan fakta yang dmual Men Hakim amava da1am kes um adahh dlsoknng dengan kslevanqan yang dlkemukakan dv Mahkamah dzn nan: sehab umuk dapalan Izkta uan selamsnya salman bag: keoga-uga penuduhan mi dlganggu Kn Nu. 42(s)u4mzn1A my sawanyumya, bagv kes Na msprsz-ow/2u14, mange: a. sun member: katerangin hahawa pevayu |aVah merogol mangsa a. Mom Ruya\e 2: Blnlang wallu secau paksaan Ianpa kerelaan mangsa Dalarn keyaman Iago! ml mangsa manna: pevayu memasukkan kemahun pevayu kedalam kemaman mangsa Mangsa ,uga kemudxannya mendapzll medon zmnmx mangsa dzn wang beuumlah mason co nnux mangsalelah nnang [as] Dalam kes .n. mga H.-mm Euara mun memhum dapilan lakla hzhawa mangsa ada\ah seuvang saw yang kramhel dan menenma kalerangan mangsa my Kalevzngan mangsa wga msgxong dengan kelevangan larermk apabvla DNA perayu dI|emm darn spesxmen yzng ma-nun din a-lam kemaluzn nungsa [41] Salzm nu‘ kexerangan kawzn mangsa tam; SP2 dan mmzn Velakx mingsa yang mzna mangsa memnkmmkzn kqadxan lersebul sanmu menzngws man max langsung menynkong mevangan kyaman mgov tarsebul aegnu .uga dengan laporan Duh: yang amuax pada nan yang aim: mernpunyzl nvlaw kelarangan saknngan berkaltan kejadlan herkenzan [41] Sehubungan nu ma, saya dapan dapalan Hakim Bxcara yang rnensabnkan pemyu bag! kedua-dua pemlduhan |emadap peliyu adahh dlsoknng dengan kelerangan yang dnkemukakan dan hada alasan unluk mganqgu 2. Nukum-n [43] Prmsup unuanwnaang bevhubung hukuman ada\ah Jam binlwa pemmbangan mam: penu mbenkan kepaaa Kepentmgan awam Eemubung perkara um nerumxan dlvwuk kepaua has Public Houculol v Loa chaon Pm (me) 2 uL.I 255 yang menyalakln [44] an an. of mu main consndurltians In ma mmmm al nmume 1: ol mm m. quurlon aipuhllc lnnumsl on we pom! / nm Lmly quake . passaga hum [Iva jmgrmnt of Minor! J in Rs: V Kamvslh Jenn Eafias rauow: y.. ooadvrvn me -anmm xonl-new . mu ihou/d vw-ys no yum-v by Danum cvnsverat-on: Tm firs! and menu; .s the sum mleaefl 77:: crlmmnl law .. mum, anbiced, mx unly mm M: own! at pumsnmq mm! am am mm was alyremmingrl/1 prwnrsomzvlce paswd m mm, sewn m. mm Interest In Mm ways n may am when who Hugh! u. Ionvplud ta ny cnme .; Mommy to Mar my manly on m. sapposman msmn. a/Vevtdsns cauvm and be twugm In mm M: pumlsnmem MN n. mghgnnta Sum . smltmn mar ma mu ms uamcular Mrmnal nmn commrtfvw . enrm agun wrrvduce ham to mm {mm amnunalman nooenms rn. puhlmrnlerusltxmdndsarved and IN om nlved um nfiendvni mmcod be mm lurvv mlmmll ways m honest mg Ouv/aw dues noz, mum an M: zemerwe Iota pamwlar mm, but fin: . mummm 5-mama Ind! vi: .7 In do no: mm! In deems what .; wrmm may maxrnum the applwnmz serlence Iareaw Dnmmal In me pamcnlar mcunulanees oleach us: Nm umym regard m each um but vrv mm m aach mm!/ra! me win has me mm and lmdwladmdewvvellrenobelamam nrsemvz ' samplng mu, mahkamah ma perm menglmbangl lnklm kepermngan awlm um flengan kepenlmgan lenuduh mu pavuyu sepem dmyalakan dzlam xes yang saman sepem henkul “Pmrtdcnrs and Mmnstmlc aw amn mdmed mm nafurmy to be oven sympamatr: in the amma ms :5. narma/psychological rancher! In the srluauon .n wen me mnar, accused .5 sun Inmng an irvsy olmlrmuax WM Iuimmty Ylve nunganun sulzmmed by 3 co:-new Damon wt/I am 75 namuy hung up problems at lam!/y nardsmp mm M: nlhw usull problem: ofhymg m such a srxualron my nouns mrgnl pamay: /ma y: u umm: 2.: dncrde as In what senlence slvomd be /mpased so mat me conwclad psvsan may nu! be /may nm.m mm mmmenar Imrdslup Tmsrsmyvrmv rs a wmrw iflnroacn rm corncl uwroach rs 2.: slnke a balance as ray is pnsubll, bulvnun me Inluuu at the public and um mmurx 4:! m accuud Lam Gmaan: L cy m 2.. y Gmvrdkawshv 119451 1 an 5» 5.50 451 aflered some gond advrcs when he sard — We judge must consult! m. mmuts meme .. well .5 the /mm: alum pm... rm Mo nlun nowlflly: man: a. sum: to be maufil, mt m. vrmruu mum. mun: only the -ntevcslt m:..pn..u....v.“ [45] Bag! keuga-uga kes Ierhuflap pemyu szya dapah Haknm wears man mempemmhangkan mmgasx men pmak punbelaan flan rmyanan umuk pemberatln hukuman Lfleh Ttmbman Penaakwaraya Fnnsxp hukuman yang helm mg: (ekah mgunapakaw 0127: Mama Elcara m xampmg mempemmbangkan Penya|a lmpak Mangn [45] Peuyu juga man dlkalegnnkan mugs. pevogol bersm yang mengambfl kesempzlan lemldup game-yams muda yang Ingln mendapi|Kan pekanaan semenlau ma\z\u\ laman seaawang Tlga orang yams lelzh me-my mangsa perayu flan kehldupan mevek: telah dxmuinahkin dengan pevbuzlzn peviyu (erhidap marek: Kapermngan awam memeflukan pemualan pevayu dmalang den Iru dapal dllakunakan dengan hukuman yang beral lemadap perayu [an Bevhuhung Lsu hukuman um yuga. Mahkamah Rayuan dalam kss cm Hanan om sum v. Public Prnsoculor (212091 1 MLJ 55. ad: menyennm mengenal hukuman yang maksmla atau harnplr makslma sapenl benku| 15 I43] [49] “u 1. In am [udymirvl m oonocv sppmscn 1» e. um whom ma maxrmum or neav maxrmum sentence I: warranted rs mar st! om m an. /udgmenl of Yang Fung Haw c1 m Srm Gak Ya/lg v M»: Pvusscntor mu) 1 sm 537 Th: /aimed cw mm cu‘ Smglpam lxprissvd s wew wvm wrvdv W. Ia:-psclllxl/y agree ms rs wflal Hr: Hanan! saw! ‘TM Drmaplwtospmmvd zbun MR v r.w.sm Enrllay am; 2; ALP 17.7 and Benseggvr V R mm wm 55 mm m my wew me Wm WIWJV mm D: lmwlvd by a com lomnix mo mm D7 maximum surnennu Tu mind me manmum 59003004 to the Wow ms: rmnganauw ma only mwlu an mm purvnummn oflvypnlhenr m m. zppd/Valli’ cum fnrmsfilmze Wm be was: we rmagmab/9‘ be am In WIUIM mg custom mm ma bsemrumod’ Ormwldiv he an: m wmm ... mnovcrvf byflamiec mu bun mzfly M w m. -Iw-5!/nnra car7 The nommm ave hmnmsandnn mnmay mtolemme. mm 5 court can rouucrrcmy do ma .1; nm .1 mama h my. «mm wn-mm, not up rmpasu . maximum sevvtenze ,3 n rdenmy a mnge ol oonducf mm. Llvuucluvus me mcxl Jenna: tnsamaoa aims ollanm .u auanma rm: wom, Is the court m R V tau and mm man an mm contvdsrahon my: aim: nalur: 91!»: mm: and am. cvmrmuamns cl m.um.»..r ' Kemnan kepada ks;-kes (emadap perayu, my: aaaxan suatu kes yang amat senus din perm kepada suam benluk hukuman yang namlnw sepem xsmahulu, Hakvn Encara Ielah mambual pemmbangan bemubung hukumen selaras dengan pnnsip undang— dlnyatakin undang dan man: alasan untuk dlganggu nleh Mahkamah um 17 Kulmpulan [so] Berazsarkan huvalan dw alas vayuan xemmap saman dan hukuman bagu kenga-lugs kes yang mpennc-kan ax alas adalah flulmak [DATD' NORDIN am HASSAM] HAKIM MAHKAMAH YINGGI KUALA LUMPUR BERTARIKH: 2: JUN ma :- Ptnauxnau W {2} Kee we‘ Lun Teluan Kes. shamru 5. Co Peguambela dan Peguamcara 7—2‘ Ja\an Dwwlaslk‘ Da|aran Dwwaslk Bandzr Sn Pevmamm 56000 Kuah Lumvur Nxk Syahnl hm Nlk Ah Rihman mnbawan Pendakwa Ra)/a (Jabzlan Feguam Nagaray 19 bag! Dmak Ferayu haw pmak Respunden (II? (N ('5) Fonufluhan Kenna. mu kemahln Dersewhuhan mmar \ahI pevayu dustuhkan hukuman 12 namm peruava flan unkh jaluh hukum Lam: 25 a 2:114 can 3 sehalan mlan Plrludullnn kauga, mm. kesmahan mancun, pmyu mmunkan hukuman pemarl 5 lahun aan lznkh ‘am hukum pada 26 a mu Eagw kes No. 52(5)-nuts/2014 perayu mg: le\ah dlsabllkan dengan kelxga-Inga perluduhln lerhadap pevayu dzn hukumarv hukumzn yang dualuhkan adahh sepem benkm (I) (D) (C) Kehg:-Inga hukuman W Pmuaurun vanama bagx kesalahan mnmgox. pevayu flualuhkan hukuman pemara cs (ahun dan s sebalan rman Perluduhan Kodun wga bagi kesalahan marogcl, pelayu dmatuhkan hukuman peman 15 (ahun darn e sebatan rman Femmuhan Koliua bag: kesmahan rnencnn, perayu dualuhkan hukuman pemara Slanun mpevmahkan beqalan seremak se\epas perayu merualaru hukuman hagx kes rayuan No 42<s)— 41-u4r2o14 I3! [5] am) Bag: kes No. 42(s)—a2.u1/znu perayu le\ah dwsabnkan bag: kedua-due penuduhan yang dlkemukakan mhadap perayu din hukuman yang dqzluhkan adalah sepem benkul (a) Bag! ponuaunnn panama mu kesmahan mevognl hukuman adalah pemara 1: (Ihun an 5 seba|an Man (17) Bag: pnlludullln kodun hukuman adahh pamara 5 (shun Kedua-dua hukumin dlpennlahkan neqzxan serenuk bermma selepis on se\esm men;a\am hukumln flalam dua Vagw kes nqukan No 42(5)-54-oslzou am No 42(6)-41-04/2014 Perzyu merayu |am.Iuap saouan flan hukuman yang mmunxan aleh Hamm Mahkamah S=syen berkenian Rayuan big: kellga-nga kes penyu dndangav sevenlak dan seman mendengar hujzhan keduadua pfihak Mahkamah vm Bid: 23 5 2015 Ielan manchk rayuarwayuan perzyu lerhadap sabwan flan hukuman Pada zaazma, perayu lelah rnemlallkan nulls rayuan setelah mendapalkan Lanjulan masa dan Mahkamah Rayuan Kapnluun Mahkamah IM I5] Benkulnya adalah anahsa dan a\asan—a\asan berhubung kepulusan Mahkamah Im meno\ak ke||ga—t\ga rayuan pmyu 5 [11 Secava umumnya, kelbgaruga tayuan pevayu aaa rnehbalkan perluduhan kasalahan merogov flan hemasarkan Kelsrlngan‘ car: memhawa kepada kefidlan vegan ml adalan mangsa mvawarkan pekeqaan semanlara nemasaman mzbdumal yang dnpermehu melalun Iamzn aeaawang dan mangsa aumma Ke new Imluk d\|:mu|:ua\ D1 me: berkauan. mangsa dlmgm aan bavsng pavlbadl mlngsa dmun Kn No. ms)-41-an/2014 [:1 sag. ken ml‘ sepem dmyalzkan Ierdihulu Pevzyu Ielah msaxmxan dangin 3 perludlman yang dlksmukakan Ierhadapny: em. up Perluduhan Panama, unluk kesalahan memgol Wong Vee Mun Penuduhan Kedul. bag: kzsalahan rrmakukan perselubuhan benenlangzn dengan amran man levhadap Wang Voe Mun nu) Femmuhan Kehga Plndaan hag: kesalahan mencurl sebuah \- Pad uan (elaion bmmn |enama Nam: mmk Wong vee Mun [91 Kes pendakwaan‘ berdasarkan kelevangan saksn-saksl yang dlkemukakan adalah sepem benkul 11) Wang Yee Mun qmangsa) yang kenga mu berunwr 21 tanun ada memuamauk modananya ke Vaman sesawang ‘A513 Pan tune‘ unluk mendapatkan pekenaan semerflava 5 (In (W) (V) (VI) Paua no 92012, mzngsa mendapm mesa, den nombor yang udak d|kenaH berlanyakan sama ada mangsa ho\eh baker]: menemam seseorang sebagax jurupanau an Kuala Lumpm dan makan |eng:han dengan mang xersebm Oring yang menghubungi mzngsa m. memperkermkan dmnya sebagm Frye‘ dan manmaskan mangenal ken: yang pavlu dflnkukzn ulah mangsa dengan gay sebanyak RMLU00 no Faye Jugs «emu mumma mangs: menempah nuna»manI hotel bemamplran Iempal hnggal mzngsa unluk pemunaun uuk (erxebul mm kurang \ Jam sebemm kamar makan tengahan. Faye ‘uga menyalakan am membayar blllk kepada mingsz wang (empahin ho|e1bevkenaan Faye walemsnyi memml: mangsa membawz levednn Dlmar unluk lugas yang akan mnuamya Mangsa ad: memaldumkan kepada Faye bahiwa mangsa tvdak mahu ken: yang dxlamarkan oxen Fzye Kersebul lamp! le\ah dipuwk berkah-kiln o\-sh Faye dan menyalakan Faye max ada penqganm Vain unluk \ugzs benzenaan. Akhlmya mangsa bersemju membual kena berkenaan flan menempan bum nornbar 303 m Myname Hols! di Setapak‘ Kuala Lumvur (yu OX) 00 (XI) Sslelah mangsa bevzda dalim mnk berkenazn pmlu omk Ieisebm dnkevluk mangsa mendengav nrang yang memperkenalkan dmnya Faye yang kemudxannya mcamkan aleh mangsl wanu perayu dalam Kes m D. dalam mun (ersebm parayu kernudnan Izlah melakukan psnaxununan dl Ina! «am «emaaap mangsz |anp: kermaan mangsa dengan memasukkan zakamya ke mum mangsa din selerusnya mamgm mangaa Selelah may mangsa misuk ks bum in’ umuk memberslhkan dm mangsa dun apablla kelulr am b<lAk am mingsa menaapau perzyu man naua Mangsa yug: menyadin bihawa |—Fad flan temon blmbfl .anama Nokm rmhk mangsa yuga \e\ah mlang Selapas kejadlzn tumebuly ‘any pad: han yang same, mingsa Celah meneledon iblngnya. spay flan sambfl menangxs memiluumkzn bahawa rnangsa (shah kehflangzn xaneaan blmhn dan I-Pad behau Mangsa wga aaa menyebm umuk membunuh am Apama N22 m mman, mangsa man menoemakan bahawa mzngsa lelah dwogol secara yaksaan sexalan mu mangsa pulang xa vumah mangsa ma Kelah memaklumkan uayaman yang berlaku larhadsp mangsa um mangsa jug: mendapau mangsa dalam keadaan (mum: dan bersellmul :11 dalam hwhk mangsa Pada 1592012, mangsa te\ah memhuat Vapcran pohs bemummg kejadwan mgal (ersebul xalm Selaoak vepon a 12167112 dan pada hau yang sama mangsa man dnpenksa oxen doklor nu spa yang mzndzpau lsrdapal xayakmkoyakan lam: pad: hymen mangsa flan had: kuyakan ham yang dlkesan (x. I-Fad din vevevon mmnn mzngsi man flwirnpas din swz yang menmen kelarangan hahaw: swz ylng mempunyal kedax vanu vv snap (M) Sdn Bhd an S9 Wang waza auxn Emling. 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Pytesseract-0.3.10

BA-24-108-01/2016

PLAINTIF Anwar Yeo Abdullah DEFENDAN Setia Haruman Sdn. Bhd.

27/06/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0bf9030d-1e2b-44af-99b9-27e11f368627&Inline=true

Microsoft Word - BA-24-108-01-2016 Anwar Yeo Abdullah Lwn Setia Haruman Sdn Bhd 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. BA-24-108-01/2016 Dalam perkara Mahkamah Sesyen Shah Alam Saman No.: 52-1316-2011 (“Tindakan 1316”); Dan Dalam Perkara Aturan 7 Kaedah- Kedah Mahkamah 2012 Dan Dalam Perkara Seksyen 25(2) dibaca dengan Perenggan 12 jadual kepada Akta Kehakiman Mahkamah 1964 Dan Dalam Perkara Terpinda bertarikh 13.3.2012 dalam Tindakan 1316 yang difailkan oleh Defendan dalam Tuntutan Asal dan Plaintif dalam Tuntutan Balas Dan Dalam Perkara Tuntutan Balas bertarikh 12.4.2012 dalam Tindakan 1316 yang difailkan oleh Defendan Kedua dalam Tuntutan Balas 2    ANTARA ANWAR YEO ABDULLAH ..PLAINTIF (No. K/P: 730908-12-5685) DAN SETIA HARUMAN SDN. BHD. ...DEFENDAN (No. Syarikat: 425145-U) ALASAN PENGHAKIMAN (Kandungan 1)     Latarbelakang Kes [1] Plaintiff (Anwar Yeo Abdullah) adalah defendan di dalam guaman sivil No. 52-1316-2011 (guaman sivil mahkamah sesyen) yang difailkan di Mahkamah Sesyen Shah Alam yang dimulakan oleh sebuah badan pengurusan bersama yang ditubuhkan di bawah Akta Bangunan dan Harta Bersama (Penyelenggaraan Dan Pengurusan) 2007 bernama Badan Pengurusan Bersama CBD Perdana, Cyberjaya (CBD Perdana 1). Plaintif adalah tuanpunya beberapa unit pejabat di CBD Perdana 1. 3    [2] Di dalam guaman sivil mahkamah sesyen tersebut CBD Perdana 1 telah menuntut daripada Plaintif caj-caj penyelenggaraan termasuk wang penjelas (sinking fund), insuran dan lain-lain caj setakat 31.5.2011 berjumlah RM191,922.91 yang termasuk faedah dan masih lagi berterusan bagi unit-unit yang dimiliki Plaintif. [3] Plaintif bukan sahaja telah menentang tuntutan CBD Perdana 1 tersebut tetapi juga telah menuntut balas untuk mendapatkan beberapa relif termasuk relif berbentuk deklarasi. Di samping itu juga, Plaintif telah membawa masuk satu pihak lain iaitu Setia Haruman Sdn Berhad (Defendan) sebagai Defendan Kedua. Setia Haruman Sdn Berhad adalah pemaju CBD Perdana 1, Cyberjaya. [4] Di dalam Penyataan Pembelaan Terpindanya, Plaintif telah menuntut balas terhadap kedua-dua CBD Perdana 1 dan Defendan dengan menuntut antara lain relif-relif berikut: (a) suatu deklarasi bahawa Plaintif dalam Tuntutan Balas hanya dianggap telah menerima milikan kosong unit-unit tersebut pada 29.4.2011; 4    (b) sebagai alternatif kepada (a) diatas, satu deklarasi bahawa Plaintif dalam Tuntutan Balas telah hanya menerima milikan kosong unit- unit tersebut pada 17.12.2010; (c) suatu deklarasi bahawa Plaintif dalam Tuntutan Balas tidak bertanggungjawab untuk membayar kepada Defendan Pertama wang yang dituntut dalam Tuntutan Asal yang tertunggak sebelum tarikh Plaintif dalam Tuntutan Balas menerima milikan kosong unit-unit tersebut; (d) kos; (e) mana-mana perintah lain dan/atau yang lanjut yang Mahkamah Yang Mulia ini mengganggap suai dan adil untuk diberikan; (f) Defendan Kedua memberikan kepada Plaintif dalam Tuntutan Balas suatu indemniti dan/atau sumbangan atas kadar yang difikir suai dan adil oleh Mahkamah Yang Mulia ini, terhadap kesemua wang yang dituntut dalam Tuntutan Asal oleh Defendan Pertama terhadap Plaintif Dalam Tuntutan Balas dan/atau mana-mana bahagian daripada yang sama; 5    (g) gantirugi khas sebanyak RM688,800.00; (h) gantirugi am dalam amaun yang akan ditaksirkan oleh pegawai Mahkamah yang Mulia ini; dan (i) Defendan Kedua memberikan kepada Plaintif dalam Tuntutan Balas suatu indemniti terhadap kesemua kos-kos untuk membaik pulih ke adaan Unit 4801-2-11 dan unit 4801-3A-11 kepada keadaan yang baik. [5] Namun, CBD Perdana 1 telah menarik balik tuntutannya di dalam guaman sivil mahkamah sesyen tersebut dan Hakim Mahkamah Sesyen telah kemudiannya membatalkan tuntutan CBD Perdana 1 dengan kos sebanyak RM3,000.00. [6] Sebelum tuntutan balasnya dibicarakan, Plaintif telah memfailkan permohonan Kandungan 1 di Mahkamah ini untuk mendapatkan perintah bagi memindahkan guaman sivil mahkamah sesyen ke Mahkamah Tinggi di atas alasan jumlah tuntutan balasnya akan melebihi bidang kuasa Mahkamah Sesyen. 6    [7] Dakwaan Plaintif bahawa jumlah tuntutan balasnya akan melebihi bidang kuasa Mahkamah Sesyen adalah bersandarkan kepada pengiraan gantirugi kehilangan sewa bagi kelima-lima unit (unit-unit tersebut) yang dibelinya dari Defendan yang menurut Plaintif ianya di dalam anggaran RM1,033,200.00. Jumlah ini diperolehi dengan membuat pengiraan gantirugi bagi kehilangan sewa untuk unit-unit tersebut dari tarikh 16-5-2008 sehingga 15-5-2011. Pengiraan ini telah dibuat oleh Plaintif di dalam pernyataan saksi beliau yang dilampirkan bersama Afidavit Sokongan No. 1nya. [8] Plaintif juga telah mendakwa bahawa beliau adalah berhak kepada faedah pada kadar 10% setahun dikira atas rehat harian ke atas keseluruhan jumlah pembayaran yang beliau telah buat kepada Defendan berkenaan pembelian unit-unit tersebut dan jumlah faedah yang dituntut adalah di dalam lingkungan RM856,514.00. [9] Defendan telah menentang permohonan Plaintif atas alasan- alasan berikut: 7    (i) tuntutan Plaintif terhadap Defendan adalah tidak berasas dan tidak bermerit kerana tuntutan tersebut tidak kena mengena langsung dengan tuntutan yang dibawa oleh CBD Perdana 1 yang mana tuntutan asal CBD Perdana 1 adalah satu tuntutan untuk bayaran caj-caj penyelenggaraan yang tertunggak dari tempoh Mei, 2008. (ii) dakwaan Plaintif berkaitan kehilangan sewa sebanyak RM1,033,200.00 hanya telah dituntut oleh Plaintif di dalam Penyata Saksinya yang difailkan pada bulan Disember 2015 sebelum perbicaraan bermula di Mahkamah Sesyen, manakala tuntutan faedah pada kadar 10% atas kerugian sewaan hanya telah ditimbulkan oleh Plaintif di dalam afidavit sokongan No.1nya bagi menyokong Kandungan 1 di hadapan Mahkamah ini. Justeru itu, adalah menjadi tegasan Defendan bahawa tuntutan-tuntutan Plaintif tersebut adalah tuntutan yang tidak diplidkan oleh Plaintif di dalam plidingnya di dalam guaman sibil mahkamah sesyen. [10] Undang-undang adalah mantap dan jitu bahawa bidangkuasa Mahkamah Tinggi di dalam pemindahan prosiding adalah suatu 8    bidangkuasa tambahan Mahkamah Tinggi dan ianya telah diperuntukkan di bawah Jadual Seksyen 25(2) Akta Mahkamah Kehakiman 1964. Perenggan 12 Jadual ini berbunyi: “12. Transfer of Proceeding Power to transfer any proceeding to any court ot to or from any subordinate court... provided that this power shall be exercised in such manner as prescribed by any rules of court.” [11] Perenggan 12 hendaklah dibaca bersama dengan Aturan 57 Kaedah 1(2) Kaedah-Kaedah Mahkamah 2012 (KKM 2012) yang memperuntukkan berikut: ATURAN 57 KKM 2012 Pemindahan prosiding ke Mahkamah yang lain ( A.57,k,1) 1. Jika Hakim Mahkamah Tinggi atau Hakim Mahkamah Sesyen atau Majistret berpuas hati bahawa apa-apa prosiding dalam Mahkamah tersebut boleh menjadi lebih mudah atau adil untuk dibicarakan di Mahkamah yang lain yang setara bidang 9    kuasa, dia boleh atas permohonan mana-mana pihak, memerintahkan prosiding itu dipindahkan ke Mahkamah lain. 2) Pemindahan apa-apa prosiding dari – a) Mahkamah Rendah ke Mahkamah Tinggi; atau b) Mahkamah Tinggi ke Mahkamah Rendah hendaklah hanya dibuat dengan perintah Hakim Mahkamah Tinggi atas permohonan mana-mana pihak melalui saman pemula atau notis permohonan, mengikut mana-mana yang bersesuaian. 3) Pemindahan apa-apa prosiding dari – a) Mahkamah Majistret ke Mahkamah Sesyen; atau b) Mahkamah Sesyen ke Mahkamah Majsitret, hendaklah hanya dibuat dengan perintah Hakim Mahkamah Tinggi atas permohonan mana-mana pihak melalui saman pemula atau notis permohonan, mengikut mana-mana yang bersesuaian. 4) Sebelum membuat apa-apa perintah untuk memindahkan apa-apa prosiding dari – a) Mahkamah Tinggi ke Mahkamah Tinggi lain yang setara bidang kuasa; 10    b) Mahkamah Rendah ke Mahkamah Tinggi; c) Mahkamah Tinggi ke Mahkamah Rendah; atau d) Mahkamah Rendah ke Mahkamah Rendah yang lain, Hakim Mahkamah Tinggi atau Hakim Mahkamah Sesyen atau Majistret, mengikut mana-mana yang berkenaan, hendaklah mengambil ke dalam pertimbangan sama ada Mahkamah Tinggi atau Mahkamah Sesyen yang akan mendengar kes itu terletak di atau berdekatan dengan tempat yang – (A) kausa tindakan itu berbangkit; (B) defendan, atau seorang daripada beberapa defendan, bermastautin atau mempunyai tempat perniagaannya; (C) fakta yang berdasarkan kepadanya prosiding itu wujud atau dikatakan telah berlaku; (D) tanah yang pemilikannya dipertikaikan itu terletak; atau (E) bagi sebab-sebab lain yang wajar demi kepentingan keadilan bahawa prosiding itu patut dipindahkan. (5) Dalam Aturan ini, “Mahkamah Rendah” ertinya Mahkamah Majistret atau Mahkamah Sesyen. 11    [12] Di dalam kes ini Plaintif telah menganggarkan gantiruginya bagi kehilangan sewaan unit-unit tersebut bersama faedah pada kadar 10% setahun dan jumlah keseluruhan adalah RM1,889,714 (RM 1033,200.00 + RM 856,514) bagi tempoh 16-05-2008 sehingga 15- 05-2011. Jumlah ini adalah berdasarkan pengiraan semula (recalculated) gantirugi yang telah dialami oleh Plaintiff yang mungkin dibenarkan oleh Mahkamah. [13] Mahkamah ini telah meneliti semula penyata pembelaan dan tuntutan balas terpinda Plaintif dan apakah yang sebenarnya telah dituntut oleh Plaintiff dalam tuntutan balasnya. Di dalam tuntutan balasnya, jelas menunjukkan bahawa apa yang dituntut oleh Plaintif adalah pertamanya, satu perintah mengisytiharkan bahawa beliau hanya dianggap telah menerima milikan kosong unit-unit tersebut pada 29.4.2011 atau alternatifnya hanya menerima milikan kosong unit-unit tersebut pada 17.12.2010. [14] Seterusnya Plaintif memohon suatu deklarasi bahawa Plaintif tidak bertanggungjawab untuk membayar CBD Perdana 1 caj-caj penyelenggaraan yang tertunggak. 12    [15] Plaintif seterusnya menuntut supaya Defendan menggantirugi (imdemnify) beliau akan kesemua wang yang dituntut oleh CBD Perdana 1 terhadapnya, kesemua kos-kos untuk membaik pulih ke adaan Unit 4801-2-11 dan unit 4801-3A-11 kepada keadaan yang baik, gantirugi khas sebanyak RM688,800.00 dan gantirugi am yang akan ditaksirkan. [16] Berdasarkan apa yang dituntut oleh Plaintif di dalam tuntutan balasnya, Mahkamah ini bersetuju dengan peguam Defendan bahawa jumlah anggaran yang cuba dituntut oleh Plaintif bagi kehilangan sewa sebanyak RM1,033,200.00 yang dikira kononnya dikira dari tahun 16.5.2008 sehingga 15.5.2011 adalah satu tuntutan yang langsung tidak diplidkan oleh Plaintif. [17] Mahkamah ini mesti menegaskan di sini bahawa Plaintif telah hanya membuat pengiraan akan gantirugi sewaan hanya di dalam Penyata Saksinya di Mahkamah Sesyen. Di samping itu, penelitian ke atas Penyata Pembelaan Terpinda bertarikh 13.3.2012 khasnya di perenggan 23.3 yang merupakan penyataan Plaintif berkenaan tuntutan kehilangan sewa yang kononnya beliau telah memasuki Perjanjian Penyewaan bertarikh 16.5.2008 dengan Jabatan 13    Tenaga Kerja Semenanjung Malaysia untuk menyewakan premis- premis tersebut kepada pihak ketiga tersebut untuk tempoh bermula dari 16.5.2008 hingga 15.5.2011 dengan sewaan RM28,700.00. Namun, di perenggan 23.4nya pula, Plaintif telah tidak pula memplidkan kerugiannnya dari tarikh 16.5.2008, sebaliknya telah hanya memplidkan tarikh 16.5.2009 sebagai tarikh permulaan dan dengan itu telah hanya menuntut jumlah kerugian sebanyak RM688,800.00 dan bukannya RM1,033,200.00. Makanya, jumlah RM1,033,200.00 ini hanya telah didapati oleh Plaintif apabila beliau membuat pengiraan semulanya di dalam Penyata Saksinya dan bukanlah di dalam plidingnya. [18] Plaintif telah cuba menghujahkan bahawa jumlah itu adalah jumlah yang boleh dikira di atas gantirugi am yang akan ditaksirkan di mana apabila Mahkamah mengawadkan gantirugi am kepadanya. Menurut Plaintif lagi, awad gantirugi am itu akan menjadikan jumlah yang beliau mungkin perolehi melebihi bidangkuasa Mahkamah Sesyen. Mahkamah ini tidak dapat menerima hujahan ini kerana jelas bahawa Plaintif telah mengandaikan bahawa satu perintah gantirugi am akan diberikan oleh Mahkamah dan jumlah gantirugi am yang akan diberikan Mahkamah pasti melepasi 14    bidangkuasa Mahkamah Sesyen. Adalah menjadi dapatan Mahkamah ini bahawa pengiraan yang dibuat Plaintif ini adalah satu pengiraaan anggapan anggaran dan satu hypothetical calculation yang tidak boleh menjadi asas kepada pemindahan prosiding Mahkamah Sesyen ke Mahkamah Tinggi. Di samping itu, pengataan Plaintif bahawa jumlah lebihan daripada sebanyak RM344,400.00 {RM1,033,200.00 tolak(-) RM688,800.00} boleh dimasukkan ke dalam tuntutan gantirugi am yang bakal diawad oleh Mahkamah kelak adalah juga jelas sesuatu yang afterthought. [19] Begitu juga dengan tuntutan Plaintif untuk faedah pada kadar 10% setahun dikira atas rehat harian dan menuntut jumlah dalam lingkungan RM856,514.00. Adalah menjadi dapatan Mahkamah bahawa tuntutan faedah ini adalah suatu tuntutan yang baru yang langsung tidak pernah diplidkan oleh Plaintif sebelum ini dan hanya dibangkitkan oleh Plaintif di dalam afidavit sokongannya bagi menyokong permohonan Kandungan 1 ini. [20] Mahkamah ini juga mesti menegaskan di sini bahawa percubaan Plaintif menggunakan tindakan yang dibawa oleh CBD Perdana 1 bagi caj-caj penyelenggaraan yang tertunggak dengan menuntut 15    terhadap Defendan gantirugi yang ditanggungnya atas dakwaan kelewatan di pihak Defendan menyerahkan milikan kosong kepadanya. Dakwaan kelewatan penyerahan milikan kosong ini bukanlah sesuatu yang baru atau fakta baru ataupun isu baru yang ditimbulkan oleh Plaintif. Tuntutan Plaintif ini juga bukanlah berdasarkan keterangan yang baru ditemui dan/atau suatu fakta/isu yang baru sahaja timbul. Dakwaan ini telah timbul daripada fakta bahawa pihak Bank Pembiaya telah melepaskan kesemua jumlah pinjaman kepada Defendan untuk menyelesaikan keseluruhan harga belian unit-unit tersebut di atas pada 4.8.2008 tetapi kunci kepada unit-unit tersebut telah hanya diserahkan kepada beliau kononnya pada 17.1.2011. [21] Fakta/keterangan dan/atau dakwaan tersebut adalah di dalam pengetahuan Plaintif sejak daripada awal lagi sebelum beliau membawa tindakan terhadap Defendan di Mahkamah Sesyen. Malahan Plaintif telah pernah membuat permohonan untuk memindahkan tindakan ke Mahkamah Tinggi Shah Alam melalui Notis Permohonan bertarikh 25.6.2012 yang difailkan di Mahkamah Sesyen Shah Alam di atas alasan bahawa tuntutan yang dibawa oleh beliau melibatkan suatu relif/deklarasi/pengisytiharan yang 16    pada masa itu adalah di bawah bidangkuasa Mahkamah Tinggi. Permohonan Plaintif di Mahkamah Sesyen Shah Alam telah ditolak/dibatalkan atas alasan bahawa Hakim/Mahkamah Sesyen tidak ada bidang kuasa untuk mendengarnya. Jelas dinyatakan dalam tuntutan asal atau tuntutan yanng diplidkan oleh Plaintiff tidak merangkumi bidang kuasa Mahkamah Tinggi dan tiada apa-apa pindaan atau tindakan yang diambil oleh plaintiff untuk meminda tuntutan tersebut. Asas tuntutan milikan kosong yang disandarkan oleh Plaintif bukanlah merupakan dakwaan atau fakta baru yang ditimbulkan tetapi merupakan dakwaan Plaintif sejak tahun 2008 lagi dan tuntutan ini hanya dikemukakan oleh Plaintif sebagai tuntutan tambahan untuk gantirugi sewa melalui penyata keterangan saksi yang telah difailkan pada Disember 2015 dan faedah telah hanya dituntut di dalam afidavit sokongan untuk pemindahan prosiding ke Mahkamah Tinggi tanpa bersandarkan apa-apa pengataan fakta di dalam plidingnya. [22] Mahkamah ini bersetuju dengan peguam Defendan bahawa jika permohonan Plaintiff ini dibenarkan ia akan memberikan ruang dan peluang kepada Plaintiff untuk mendapatkan gantirugi dalam 17    tindakan yang telahpun terakru semenjak 8 tahun ½ yang lalu iaitu 8 ½ tahun selepas tindakan asal yang timbul. [23] Apa yang jelas dan penting adalah pihak-pihak adalah terikat dengan pliding masing-masing. Plaintif tidak boleh mendapatkan apa-apa relif undang-undang di luar plidingnya. [24] Permohonan Plaintif ini adalah merupakan permohonan Plaintiff yang ketiga untuk memindahkan prosiding ini dan jelas tindakan ini bukanlah dilakukakan secara “bona fide dan merupakan satu penyalahgunaan proses mahkamah. [25] Atas alasan-alasan di atas, Mahkamah ini menolak permohonan Plaintiff di dalam Kandungan 1 dengan kos sebanyak RM3000.00 kepada Defendan. 18    ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (NCVC 8) Selangor Darul Ehsan Bertarikh 27 haribulan Jun 2016 Peguam Plaintif - Tetuan Teoh Pek Wei Encik Wilson Lim Peguam Defendan - Tetuan Abdul Halim Ushah & Associates Encik Allister

Tika 2.6.0

24-245-03/2016

PLAINTIF NOR AZIAN BIN ROSLI DEFENDAN NOORIZAN BINTI AHMAD

27/06/2016

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 24-245-03-2016 Nor Azian binti Rosli V Noor Rizan binti Ahmad 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. 24-245-03/2016 Dalam Perkara Mengenai Hartanah Yang dikenali sebagai No. H.S(D) 57269, PT 42657, Mukim Kajang, Daerah Ulu Langat, Negeri Selangor; Dan Seksyen 8 Akta Relif Spesifik 1950 (Akta 137) Dan Dalam Perkara mengenai Aturan 89 Kaedah 1, Kaedah-Kaedah Mahkamah 2012 ANTARA NOR AZIAN BINTI ROSLI ....PLAINTIF DAN NOORIZAN BINTI AHMAD ….DEFENDAN 2    ALASAN PENGHAKIMAN (Kandungan 1) [1] Melalui Saman Pemula (Kandungan 1) yang difailkan pada 7.3.2016 ini, Plaintif (Nor Azian Binti Rosli) memohon antara-lain perintah- perintah yang berikut: (a) bahawa Plaintif mendapat milikan kosong hartanah yang beralamat di No. 32, Jalan Impian Murni ¾, Taman Saujana Impian, 43000 Kajang, Selangor Darul Ehsan yang dipegang di bawah hakmilik individu H.S(D) 57269, PT 42657, Mukim Kajang, Daerah Ulu Langat, Negeri Selangor Darul Ehsan (hartanah tersebut); (b) bahawa Defendan menyerahkan milikan kosong hartanah tersebut kepada Plaintif dalam tempoh empat belas (14) hari daripada tarikh Perintah Mahkamah Yang Mulia ini dan kegagalan Defendan berbuat demikian, bailif Mahkamah bersama pihak Plaintif adalah berhak untuk memecah masuk dan mengambil milikan kosong hartanah tersebut dengan serta-merta; 3    (c) bahawa Defendan dikehendaki membaikpulih hartanah tersebut sekiranya terdapat kerosakan dan/atau apa-apa perubahan dibuat ke atas hartanah dari tarikh 29.10.2015 iaitu Plaintif membuat bayaran baki harga kepada bank Pelelong; (d) bahawa sekiranya Defendan gagal membaikpulih sebarang kerosakkan yang berlaku selepas tarikh 29.10.2015 dalam tempoh empat belas (14) hari dari tarikh perintah diberikan oleh Mahkamah yang Mulia ini, pihak Plaintif berhak untuk membaikpulih hartanah tersebut dengan segala kos dan perbelanjaan ditanggung oleh Defendan; (e) bahawa gantirugi sebanyak RM2,836.28 sebulan atau secara alternatif gantirugi yang ditaksirkan bagi menduduki Premis tersebut dari 29.10.2015 sehingga tarikh milikan kosong premis tersebut diserahkan kepada Plaintif; 4    (f) menyelesaikan kesemua bil-bil utiliti yang tertunggak bagi premis tersebut bermula dari 29.10.2015 sehingga tarikh milikan kosong premis tersebut diserahkan kepada Plaintif; (g) bahawa kos tindakan ini dibayar oleh Defendan. Latar belakang ringkas [2] Plaintif adalah pembida yang berjaya membeli hartanah tersebut di dalam satu lelongan awam yang diadakan di Mahkamah Tinggi Shah Alam oleh HSBC Amanah Malaysia Berhad (Pemegang Gadaian). Plaintif telah berjaya membeli hartanah tersebut dengan harga sebanyak RM650,000.00. di mana bayaran deposit sebanyak RM65,000.00 telahpun dibayar melalui deraf bank pada 5.8.2015. [3] Bagi membiayai kos baki pembelian hartanah tersebut, Plaintif telah menerima kemudahan pinjaman sebanyak RM603,252.00 daripada CIMB Bank Berhad (bank pembiaya). Kemudian daripada itu, bank pembiaya telah mengeluarkan surat pemberitahuan “letter of notification” kepada firma peguamcara Plaintif yakni Tetuan Zainal Ithnin & Partners bagi memaklumkan mengenai pelepasan jumlah 5    baki belian sebanyak RM585,000,00 kepada HSBC Amanah Malaysia Berhad pada 29.10.2015 dan juga pemilikan kosong hartanah tersebut serta merta. [4] Namun, Plaintif tidak dapat mengambil milikan kosong hartanah tersebut kerana Defendan (Noorizan binti Ahmad) telah menduduki hartanah tersebut tanpa kebenaran Plaintif yang merupakan pemilik benefisial hartanah tersebut. [5] Saman Pemula Plaintif adalah disokong oleh Afidavit Sokongan Nor Azian binti Rosli yang diikrarkan pada 03/03/2016 (Kandungan 2) dan Afidavit Balasan Plaintif yang diikrarkan pada 19/04/2016 (Kandungan 5). [6] Defendan telah menentang permohonan Plaintif dengan memfailkan Afidavit Jawapan Noor Rizan binti Ahmad yang diikrarkan pada 01/04/2016 (Kandungan 4) dan Afidavit Jawapan Noor Rizan binti Ahmad yang diikrarkan pada 25/04/2015 (Kandungan 6). 6    Isu Pemulaan [7] Defendan telah membangkitkan isu berkaitan ketakpatuhan Plaintif terhadap Kaedah-Kaedah Mahkamah 2012 (KKM 2012). Format Saman Pemula [8] Plaintif telah dikatakan gagal mematuhi format Saman Pemula di dalam Borang 8A di bawah Kaedah-Kaedah Mahkamah 2012 (KKM 2012). Plaintif dikatakan telah tidak mematuhi Borang 8A, KKM 2012 kerana pertama, di Saman Pemulanya telah tidak menyatakan di ayat pembukaan Saman Pemula seperti berikut “Benarkan semua orang yang berkenaan hadir….” dan apa yang tertera di dalam Saman Pemula Plaintif adalah “BENARKAN Plaintif yang dinamakan diatas”, kedua, tidak ada kenyataan di mana-mana bahagian Saman Pemula yang menyatakan bahawa Saman Pemula ditujukan kepada Defendan dan ketiga, Plaintif telah tidak menyatakan tempat dan jenis pekerjaan Plaintif di dalam Saman Pemulanya. [9] Peguam Defendan telah menghujahkan bahawa memandangkan format Borang 8A adalah merupakan Borang statutori, maka 7    kegagalan Plaintif mematuhinya menjadikan Saman Pemula Plaintif cacat dan hendaklah ditolak. [10] Bagi Mahkamah ini, isu ketakpatuhan format Borang 8A yang dibangkitkan oleh Defendan adalah suatu yang remeh-temeh. Mahkamah ini bersependapat dengan peguam Plaintif bahawa penelitian teliti ke atas peruntukan Aturan 89 (2) KKM 2012 jelas menunjukkan bahawa bagi permohonan-permohonan sebegini yang mana tiada pengakuterimaan penyampaian dikehendaki, maka di dalam nota telah dinyatakan bahawa “mana-mana orang yang menghuni premis yang tidak dinamakan sebagai defendan dengan saman pemula ini bolehlah memohon kepada Mahkamah sendiri atau dengan peguam untuk dicantumkan sebagai defendan…” [11] Aturan 89 (2) Kaedah-Kaedah Mahkamah 2012 jelas berbunyi berikut: “(1) Saman Pemula hendaklah dibuat dalam Borang 8A dan tiada pengakuterimaan penyampaian dikehendaki. Suatu Saman Pemula yang difailkan di bawah aturan ini hendaklah termasuk nota yang berikut dihujungnya: 8    “Nota: Mana-mana orang yang menghuni premis yang tidak dinamakan sebagai defendan dengan saman pemula ini bolehlah memohon kepada Mahkamah sendiri atau dengan peguam untuk dicantumkan sebagai defendan…” [12] Justeru itu, walaupun di dalam saman pemula Plaintif tidak menyatakan secara spesifik “Benarkan semua orang berkenaan hadir…” dengan adanya “Nota” di hujung Saman Pemula, maka mana-mana orang yang menghuni di premis atau hartanah yang mana pemilikan kosong hendak diambil, penghuni yang mendiami premis atau hartanah tersebut yang berpandangan hak penghuniannya tercabar bolehlah memohon kepada Mahkamah sendiri atau dengan peguam untuk dicantumkan atau dijadikan sebagai defendan. [13] Maka, Mahkamah ini berpandangan bahawa dengan nota itu sahaja, Defendan memang mengetahui bahawa saman pemula itu ditujukan kepadanya. Apatah lagi di dalam kes ini sememangnya nama Defendan sendiri tertera di dalam Saman Pemula sebagai Noor Rizan binti Ahmad, sewajarnyalah beliau tahu saman pemula Plaintif ini ditujukkan kepadanya. Tidak ada isu mengenai samada Defendan 9    tidak tahu Saman Pemula itu ditujukan kepada siapa. Ketiadaan perkataan “Benarkan semua orang yang berkenaan hadir….” tidaklah sesekali menimbulkan prejudis terhadap Defendan. Begitu juga tinggalan mengenai tempat dan pekerjaan Plaintif di dalam saman pemula Plaintif tidak lah memudaratkan Defendan langsung. [14] Walau apapun, sekiranya wujud mana-mana tinggalan atas format atau ketakpatuhan KKM 2012, Aturan 1A dan Aturan 2 KKM 2012 KKM 2012 memperuntukkan kuasa budi bicara Mahkamah untuk mempertimbangkan dan menentukan samada tinggalan-tinggalan atau ketakpatuhan itu menimbulkan prejudis/ mudarat atau tidak kepada pihak-pihak. Apa yang penting adalah kepentingan keadilan. Aturan 1A dan Aturan 2 KKM 2012 jelas memperuntukkan berikut: Aturan 1A MAHKAMAH ATAU HAKIM HENDAKLAH MEMBERI PERHATIAN TERHADAP KEADILAN Perhatian hendaklah terhadap keadilan (A.1A) Dalam mentadbir Kaedah-Kaedah ini, Mahkamah atau seseorang Hakim hendaklah memberi perhatian pada kepentingan utama keadilan dan tidak hanya kepada ketidakpatuhan teknikal dengan Kaedah-Kaedah ini. 10    Aturan 2 Ketidakpatuhan Kaedah-Kaedah (A. 2, k. 1) 1. (1) Jika, pada memulakan atau bertujuan untuk memulakan apa-apa prosiding atau pada mana-mana peringkat dalam perjalanan atau yang berkaitan dengan apa-apa prosiding, telah berlakunya, oleh sebab apa-apa perkara yang dilakukan atau tidak dilakukan, yang tidak mematuhi kehendak Kaedah-Kaedah ini, ketidakpatuhan itu akan dikira sebagai suatu ketidakteraturan dan tidaklah membatalkan prosiding itu, apa-apa langkah yang diambil dalam prosiding itu, apa-apa langkah yang diambil dalam prosiding itu, atau apa-apa dokumen, penghakiman atau perintah di dalamnya. (2) Kaedah-Kaedah ini adalah suatu kanun tatacara dan tertakluk kepada objektif utama bagi membolehkan Mahkamah menguruskan kes dengan adil. Pihak-pihak itu dikehendaki untuk membantu Mahkamah bagi mencapai objektif utama ini. (3) Mahkamah atau Hakim boleh, atas alasan bahawa telah berlakunya suatu ketidakpatuhan yang sedemikian sebagaimana yang disebut dalam perenggan (1), dan atas apa-apa terma tentang kos atau selainnya sebagaimana yang difikirkan adil oleh Mahkamah atau Hakim, dengan mengambil kira objektif utama Kaedah-Kaedah ini, menjalankan budi bicaranya di bawah Kaedah-Kaedah ini untuk membenarkan apa-apa pindaan, sekiranya ada, untuk dibuat dan membuat apa-apa perintah, sekiranya ada, dalam menguruskan prosiding itu secara umum sebagaimana yang difikirnya patut oleh Mahkamah atau Hakim untuk membetulkan ketidak teraturan itu. (Sila lihat: Structural Concrete Sdn Bhd & ors v Wing Tiek Hildings Bhd (1997) 1 CLJ 300 - “It is to be noted that the issue of late filing shall not be a problem unless the adverse party raises an objection. If he does not do so and takes a step in the action, the noncompliance will be regarded as having been waived. If an objection is taken, the Court will take the necessary steps under O.2. 11    This will call for an exercise of discretion which would be appropriately exercised in the circumstances …”) [15] Peguam Defendan telah cuba menafikan hak Plaintif untuk mendapatkan milikan kosong hartanah tersebut dengan mempersoalkan status atau locus Plaintif yang dikatakan bukanlah pemilik berdaftar mahupun pemilik benefisial hartanah tersebut. [16] Adalah menjadi hujahan peguam Defendan bahawa Defendan adalah pemilik asal hartanah tersebut dan haknya sebagai pemilik hartanah tersebut tidak terjejas apabila tukul pelelong dijatuhkan. Defendan sebagai pemilik asal masih berhak untuk mencabar perintah jualan ataupun kontrak jualan sehingga terbatal jualan. [17] Defendan juga membangkitkan bahawa beliau adalah di dalam proses untuk membatalkan perintah jualan yang diperolehi oleh Pemegang Gadaian dengan pemfailan Writ Saman dan Penyataan Tuntutan oleh beliau di Mahkamah Tinggi Shah Alam (BA-22NCvC- 126-03/2016 pada 4.3.2016. Di dalam tindakan ini, Defendan telah membawa tuntutan terhadap Pemegang Gadaian, Plaintif (pembida berjaya), seorang bernama Ahmad Ridhwan bin Mohd Nor @ Saleh 12    (salah seorang yang telah membida) dan Thanabalan A/L S. Chinniah (Pelelong). [18] Menurut peguam Defendan lagi, Plaintif hanyalah sebagai seorang pembida yang berjaya dalam bidaan dan beliau tidak memperolehi kepentingan dalam hartanah tersebut dalam ertikata sebenar. Kepentingan atau hakmilik hanya beralih kepada Plaintif sebagai pembida yang berjaya apabila Sijil Perakuan Jualan dalam bentuk 16F Kanun Tanah Negara 1965 (KTN) didaftarkan. Untuk hujahan ini, peguam Defendan telah bersandarkan kepada keputusan di dalam kes M & J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & anor (1994) 2 CLJ 14 yang memutuskan seperti berikut: - “So reference to a sale being concluded at the fall of the auctioneer’s hammer could only refer to that stage of the transaction of sale when there a concluded an agreement between the vendor and the highest bidder, the former to sell and the latter to purchase the goods. Hence the term ‘conclusion’ in the contract of these sections can only mean conclusion of certain aspects of the sale when there is a an agreement between the parties to sell and buy the proprietary right has yet to be conveyed from the vendor to the purchaser”. 13    [19] Rujukan juga telah dibuat oleh peguam Defendan kepada kes Santhi Krishnan v Malaysian Building Society Bhd [2015]1 CLJ 1099 yang antara-lain memutuskan berikut: We are mindful of the fact that the defaulting chargor abdicates his right as registered owner of the land, vis-a-vis selling it, in favour of the chargee (Malayan United Finance Bhd, Johor Bahru v Liew Yet Lan, supra). However, this is a far cry from saying that a chargor’s rights to the land vanishes as soon as the auctioneer bring down his hammer. This general proposition does not mean that if an auction sale has been concluded fraudulently, collusively or otherwise improperly to the prejudice of the chargor, or of we may add, if the contract for the sale of the property had lapsed due to breach, he cannot intervene to set aside the sale whether or not the purchaser is a privy to it.” “In a sale of land under the Torrens System, the estate and interest in the land remained with the proprietor until he has done all that is necessary to divest the estate out of himself and vest it in the transferee – see Taylor v Land Mortgage Bank of Victoria (1886) 12 VLR 748. This principle is embodied in s. 267 (1)(a) of our National Land Code (NLC) which reads: - Any certificate of sale given to a purchaser under sub-section (3) of s. 259 or sub-section (4) of s. 265 in respect of any charged land or lease shall be treated for all the purposes of this Act as an instrument of dealing, and shall be registrable accordingly under Part Eighteen; and upon the registration thereof: - 14    (a) The title or interest of the charger shall pass to and vest in the purchaser, freed and discharged from all liabilities under the charge in question and any charge subsequent thereto. To put it shortly, completion under the Torrens System refers to that stage of the conveyance when the land is registered with the Registrar of Titles.” [20] Di dalam kes ini menurut peguam Defendan lagi, Plaintif sendiri telah mengakui melalui perenggan 13 Kandungan 2 nya bahawa setakat 3/03/2016, Borang 16F Kanun Tanah Negara, 1965 belum lagi ditandatangani oleh Mahkamah dan menurut Plaintif di dalam afidavitnya di Kandungan 5, Borang 16F KTN telahpun ditandatangani oleh Mahkamah dan telah dihantar kepada Lembaga Hasil Dalam Negeri pada 6.4.2016 untuk adjudikasi. [21] Justeru itu, adalah dihujahkan oleh peguam Defendan bahawa setakat 19/04/2016, Plaintif belum didaftarkan sebagai pemilik berdaftar untuk membolehkan Plaintif membawa tindakan ini terhadap Defendan. Menurut peguam Defendan lagi, dengan yang demikian tindakan Plaintif adalah pra-matang dan hendaklah ditolak dengan kos. 15    [22] Adalah seterusnya dihujahkan oleh peguam Defendan lagi bahawa Aturan 89 Kaedah 1 KKM 2012 hanya tergunapakai apabila seseorang menduduki tanah atau harta tanpa lesen atau kebenaran pemilik atau pemilik terdahulu. Aturan 89 ini tidak terpakai kepada Defendan sebagai pemilik asal yang kemasukannya ke dalam hartanah tersebut adalah dengan kebenaran. [23] Menurut peguam Defendan lagi, Aturan 89 hanya tergunapakai kepada setinggan tegar (squatter simpliciter). Untuk hujahan ini, peguam telah merujuk kepada kes Bohari bin Taib & Ors v Pengarah Tanah dan Galian Selangor [1991] 1 CLJ (Rep) 48 (MA). Memandangkan Defendan bukanlah setinggan dalam ertikata sebenar, maka Plaintif tidak boleh mengunapakai Aturan 89 bagi mendapatkan milikan kosong hartanah tersebut dan Plaintiff hendaklah memulakan tindakannya melalui tindakan writ kerana terdapat isu-isu yang perlu dibicarakan. [24] Mahkamah ini bersependapat dengan peguam Plaintif bahawa sebenarnya Plaintif telah sepatutnya mendapat milikan kosong hartanah tersebut sejak dari 29.10.2015 lagi apabila Plaintif telah 16    membuat pembayaran penuh harga belian (harga lelongan) hartanah tersebut. Bank pembiaya Plaintif telahpun membayar harga penuh bagi hartanah tersebut kepada Bank Pelelong (Pemegang Gadaian) [Sila lihat Eksibit NAR-4, Kandungan 2]. [25] Memandangkan Defendan yang enggan mengosongkan hartanah tersebut, Plaintif telah terpaksa memfailkan tindakan Saman Pemula ini untuk mendapatkan milikan kosong hartanah tersebut. Bagi Mahkamah ini, tindakan Plaintif adalah selaras dengan peruntukan Seksyen 8 Akta Relif Spesifik, 1950. [26] Bagi Mahkamah ini, Defendan telah hilang/luput pemilikannya terhadap hartanah tersebut apabila Plaintif telah membayar penuh harga pembelian hartanah tersebut pada 29.10.2015. Apabila Plaintif telah membayar harga penuh bagi hartanah tersebut, Plaintif telah menjadi tuanpunya/pemilik hartanah tersebut dan berhak mendapat milikan kosong hartanah tersebut sejak tarikh 29.10.2015. [27] Peguam Defendan cuba menghujahkan bahawa sebagai pemilik asal, Defendan adalah berhak menduduki hartanah tersebut kerana 17    hakmiliknya adalah tidak terjejas walaupun tukul pelelong dijatuhkan kerana sebagai pemilik asal beliau masih berhak untuk mencabar perintah jualan ataupun kontrak jualan sehingga terbatal jualan. [28] Adalah menjadi dapatan Mahkamah ini, hujahan peguam Defendan ini adalah tidak berasas kerana kedua-dua kes M & J Frozen Food Sdn Bhd dan Santhi Krish tidak terpakai bagi Defendan di hadapan Mahkamah ini. Peguam Defendan sebenarnya telah khilaf kefahamannya dan pemakaian kedua-dua kes M & J Frozen Food Sdn Bhd dan Santhi Krishnan. Di dalam kes M & J Frozen Food Sdn Bhd, apa yang berlaku di dalam kes ini secara ringkas adalah adalah seperti berikut; akibat kemungkiran pihak Penggadai, Pemegang Gadaian telah mendapatkan perintah jualan dan lelongan. Harta Penggadai telah dilelong pada 25 Januari 1987. Pembeli yang merupakan penawar-beli telah menyebutkan harga paling tinggi pada harga RM196,000 dan kemudian telah diisytiharkan sebagai Pembeli harta Penggadai. Pembeli telah membayar RM49,000.00 sebagai deposit iaitu 25% daripada jumlah harga belian. Walau bagaimanapun, Pembeli telah tidak membayar baki harga belian dalam tempoh 30 hari dari tarikh jualan. Berdasarkan kepada 18    kemungkiran Pembeli ini, Penggadai telah memasukkan kaveat persendirian ke atas harta. Kaveat tersebut telah dikeluarkan atas alasan teknikal. Setelah 41/2 bulan tarikh pembayaran jumlah baki belian tamat, Pembeli telah memfailkan satu permohonan untuk lanjutan masa penyelesaian baki selama 14 hari. Penggadai pada semua masa telah membantah perlanjutan masa penyelesaian. Penggadai pula telah memulakan prosiding untuk penolakan lelongan dan perlucutan wang deposit Pembeli sebanyak RM49,000.00. Namun, selepas 2 hari perintah lanjutan untuk penyelesaian baki belian diketepikan oleh YA Hakim, Pembeli telah mengemukakan baki belian sebanyak RM147,000.00 kepada Penolong Kanan Pendaftar (PKP) yang mana telah diterima oleh PKP yang seterusnya telah mengeluarkan sijil di dalam Borang 16F KTN. Pembeli kemudian telah mengemukakan Borang 16F tersebut untuk pendaftaran. Manakala Penggadai telah memfaikan saman dalam kamar untuk mendapatkan penghakiman terus terhadap Pembeli dan Pemegang Gadaian. Atas fakta-fakta inilah, Mahkamah telah memutuskan antara lain bahawa: 19    i. Adalah jelas pada ketukan tukul pelelong, tiada wang yang bertukar tangan di antara pihak-pihak berkenaan dan juga tiada sebarang dokumen yang ditandatangani. Walaupun jika bahawa masa ditakrifkan secara liberal bagi menyertakan perkara-perkara yang berlaku sejurus selepas itu, Pembeli hanya dapat bergantung kepada bayaran muka sebanyak 10% daripada harga pembelian dan penerimaan syarat-syarat jualan olehnya. Isu tidak menjelaskan bayaran penuh akan harga pembelian itu sahaja sudah cukup untuk membatalkan pembentukan sebarang ‘bare trust’ atau konstruktif dan berikutnya pengesahan pindahmilik hak keempunyaan daripada penjual kepada Pembeli. [29] Di dalam kes di hadapan Mahkamah ini, tiada langsung fakta-fakta sepertimana kes M & J Frozen Food. Malah jauh berbeza. [30] Begitu juga di dalam kes Santhi Krishnan di mana pembida yang berjaya telah gagal membuat bayaran dalam tempoh masa yang ditetapkan dalam perenggan 14 syarat-syarat jualan. Pembida yang berjaya di dalam kes Shanti Krishnan telah melakukan pelanggaran kontrak jual beli hartanah dan telah kehilangan haknya dan dengan itu kontrak jualan menjadi tidak sah dan terbatal. 20    [31] Seperti yang telah dinyatakan awal tadi, Plaintif di dalam kes ini telahpun membayar penuh harga pembelian hartanah tersebut dalam tempoh masa yang ditetapkan dan ini tidak langsung dinafikan oleh Defendan. Malahan di dalam kes ini, Borang 16F KTN telahpun ditandatangani oleh Mahkamah pada 6.4.2016 dan pendaftaran pindahmilik sedang diproses dan kini sedang menunggu notis taksiran dikeluarkan oleh Pemungut Duti Setem, seterusnya didaftarkan ke Pejabat Tanah dan Galian yang berkenaan. [32] Tambahan lagi, di dalam kes di hadapan Mahkamah ini, perintah penjualan melalui lelongan awam telah diperolehi oleh Pemegang Gadaian pada 4.3.2015 dan lelongan awam bagi hartanah tersebut telahpun dijalankan pada 5.8.2015 di mana pada lelongan awam inilah Plaintif telah berjaya di dalam bidaannya. [33] Defendan cuba mengatakan bahawa satu tindakan telah difailkannya bagi membatalkan perintah jualan tersebut, namun Mahkamah ini perlu menegaskan bahawa tindakan Writ Saman ini hanya difailkan selepas satu tahun dari tarikh perintah lelongan dan tujuh (7) bulan selepas hartanah itu dijual melalui lelongan awam. Walhal Defendan 21    sendiri di perenggan 9, di dalam afidavit jawapannya di Kandungan 4, kononnya menyatakan telah baru mengetahui bahawa hartanah tersebut telah dilelong pada pertengahan Ogos 2015. Apa yang perlu ditegaskan di sini adalah, walaupun Defendan kononnya telah mengetahui mengenai lelongan itu pada pertengahan Ogos 2015 tetapi telah hanya memfailkan tindakan Writ Saman pada bulan Mac 2016. Defendan sebelum memfailkan Writ Saman telah juga cuba membatalkan perintah jualan melalui satu permohonan yang difaikan di dalam tindakan perlaksanaan tetapi permohonan Defendan telah ditolak oleh Mahkamah. Di dalam hal ini, perlu dinyatakan juga bahawa Plaintif telah cuba mendapatkan milikan kosong hartanah tersebut daripada Defendan melalui Notis bertarikh 30.11.2015 (Eksibit NAR-5, Kandungan 2). Bagi Plaintif, apabila notis bertarikh 30.11.2015 telah tidak dihiraukan atau dipatuhi oleh Defendan, maka Plaintif telah memfailkan Saman Pemula ini untuk mendapatkan milikan kosong hartanah tersebut pada 7.3.2016. Justeru, adalah menjadi dapatan Mahkamah ini bahawa pemfailan Writ Saman oleh Defendan ini adalah sesuatu yang afterthought. 22    [34] Perlu juga Mahkamah menegaskan bahawa di dalam kes ini, di dalam kedua-dua afidavit yang difailkan oleh Defendan bagi menentang permohonan Plaintif, Defendan tidak langsung membangkitkan apa-apa isu atau apa-apa keterangan yang boleh disandarkannnya untuk mempertikaikan permohonan Plaintif. Apa yang dibangkitkan oleh Defendan hanyalah isu-isu teknikal yang remeh-temeh yang langsung tidak menggoyahkan kedudukan Plaintif sebagai Pembeli yang telah menyelesaikan bayaran penuh hartanah yang dibelinya. Malahan Plaintif telah juga mematuhi terma-terma dan syarat-syarat penjualan sehingga Mahkamah telah mengeluarkan Borang 16F yang telahpun dikemukakan kepada Pemungut Duti Setem dan seterusnya didaftarkan ke Pejabat Tanah dan Galian. [35] Penelitian teliti atas afidavit-afidavit Defendan, adalah menjadi dapatan Mahkamah ini juga bahawa pengataan-pengataan Defendan di dalam afidavit-afidavit juga adalah pengataan-pengataan kosong belaka. 23    [36] Di samping itu Plaintif tidak pernah memberi keizinan kepada Defendan untuk menduduki atau menghuni di hartanah tersebut. (Sila lihat: K Elizabeth Sumana De Silva V. Amir Singh Amrik Singh [2013] 1 LNS 243 -“… The burden of proof is on the Defendant to prove that he has the licence and consent of the Land to occupy the Land… (a) I do not agree with the submission of Cousel for the Defendant that this Originating summons should be converted into a Writ Action. The matter is rather straightforward and the facts regarding trespass by the Defendant are very clear. I am of the view that the matter can be decided based on Affidavit evidence without the necessity of going for a trial with viva voce evidence”…… “Even though the Plaintiff is currently not yet registered as the owner of the Land, the Plaintiff has been given the grant of probate of the Deceased estate. This means that she is vested with the full powers given under the grant … by necessary implication, would include taking step for recovery of the Land from the Defendant…”) [37] Berdasarkan alasan-alasan di atas, walaupun pindahmilik hartanah tersebut belum didaftarkan kepada Plaintif tersebut, sebagai pemilik benefisial, Plaintif berhak untuk mendapat milikan kosong hartanah tersebut menurut Aturan 89 KKM 2012. 24    Keputusan Mahkamah [38] Dengan itu, Mahkamah ini membenarkan permohonan Plaintif di dalam Kandungan 1 dan memerintahkan juga Defendan membayar kos sebanyak RM5000.00 kepada Plaintif. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (NCVC 8) Selangor Darul Ehsan Bertarikh 27 haribulan Jun 2016 Peguam Plaintif - Tetuan Zainal Ithnin & Partners Puan Rohani binti Ibrahim Puan Nazuha binti Abdul Rahman Peguam Defendan - Tetuan The Law Office of Mohd Harris Encik Mohd Harris Al-Hajj Abdullah Encik Muhammad Firdaus bin Arshad

Tika 2.6.0

22C-61-12/2015

PLAINTIF Daya CMT Sdn Bhd DEFENDAN Yuk Tung Construction Sdn Bhd

27/06/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a5e4958e-2f70-423e-8516-094c5a4f1064&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) SUIT NO: 22C-61-12/2015 BETWEEN DAYA CMT SDN BHD ... PLAINTIFF (Company No: 208646-U) AND YUK TUNG CONSTRUCTION SDN BHD ... DEFENDANT (Company No: 862504-A) JUDGMENT OF Y.A. TUAN LEE SWEE SENG [1] The dispute here between a main contractor and its principal subcontractor has a familiar story line. The subcontractor as Plaintiff here, had been engaged by the main contractor, the Defendant here, with respect to the construction of a mixed development of 3 blocks of 28-storey buildings ("the Project"). The Defendant itself is being employed by the landowner/developer as the Main Contractor for all the works under the Project for RM270 million ("Principal Subcontract Works"). The contract 2 documents for the Principal Subcontract Works ("Principal Subcontract") between the Plaintiff as Principal Subcontractor and the Defendant as Main Contractor, consisted of a Letter of Award dated 2 May 2012 and the PWD 203 (Rev 10/83) together with amendments in Attachment A to the Letter of Award ("the Conditions of Contract"). The appendix to the Conditions of Principal Subcontract is found in Attachment B. [2] It was a term of the Conditions of Contract that the Plaintiff do furnish a Bank Guarantee ("BG") in favour of the Defendant for RM13.5 million. It is common ground that the BG is an on-demand BG. By clause 37(c) of the Conditions of Contract, if the Plaintiff commits any breach of its obligations under the Conditions of Contract, the Defendant may utilize and make payments out of or deductions from the BG or any part thereof in accordance with the terms of the Conditions of Contract. [3] The completion date of the Project was 14 November 2014 ("Original Completion Date") under clause 39. This was extended by 43 days under clause 43 to 27 December 2014 ("Final Completion Date"). Problem [4] What happened was that there was substantial delay in the Project. As is not uncommon, each blamed the other for it! One thing was clear: by 3 October 2014 there was no way the Plaintiff could complete the Principal Subcontract Works by the Original Completion Date. Parties then entered into a Supplemental Agreement dated 28 October 2014 to allow for sectional completion. Originally the Project consisted of Block A of 526 units SOHO (22 storeys and 10 units shop offices); Block B of 365 units of service apartments (21 storeys); Block C (168 units of service apartments (21 storeys); including 7 1/2 storey podium car park and 2 storey basement car park. Under the sectional completion, completion of Block A was referred to as Section 1 and that of Block B and C as Section 2. The completion date of both Sections 1 and 2 remained as 14 November 2014. There was one exception though: the Liquidated and Ascertained Damages ("LAD") for Section 1 is RM30,000.00 per day and that of Section 2 is RM40,000.00 per day; down from RM70,000.00 per day under clause 40 of the Conditions of Contract. [5] A Certificate of Non-Completion ("CNC") was issued certifying that the Plaintiff had failed to complete the Principal Subcontract Works by the Final Completion Date. It was only on 22 November 2015 that the Plaintiff completed Section 1 which is Block A. 4 [6] According to the Defendant there were slippages in the completion of the Principal Subcontract Works after the Revised Work Programme was given by the Plaintiff. There were work stoppages and strikes by the Plaintiff's subcontractors and workmen. The Defendant proceeded to give a Notice under clause 51 of the Conditions of Contract requiring the Plaintiff to remedy the defaults failing which the Defendant would terminate the Principal Subcontract. The work stoppages and strikes continued unabated and the site memo, dated 14 December 2015 exhibited by the Defendant in Exhibit D 25 in the Defendant's 1st Affidavit, set out the number of strikes and work stoppages. The Defendant terminated the Principal Subcontract by its Notice of Termination dated 22 December 2015 for the Plaintiff's failure to regularly and diligently proceed with the Principal Subcontract Works. The Notice of Termination is at Exhibit P 12 of the Plaintiff's 1st Affidavit. Prayer [7] Thereafter the Defendant proceeded to make a call on the BG by its letter dated 22 December 2015 issued to Alliance Bank Malaysia Bhd ("the Bank"). To bring the matter up-to-date, the Plaintiff filed a Writ and this application in Enclosure 3 on 23 December 2015. The Plaintiff moved the Court on a certificate of urgency filed and an ex-parte Injunction was given 5 the same day, to essentially restrain the Defendant from calling on the BG or from receiving the proceeds guaranteed under the BG of RM13.5 million or any part thereof pending the disposal of the suit or until further order of the Court. [8] The grounds are that the termination of the Principal Subcontract is unlawful and that the call on the BG was unconscionable in the circumstances of the case. The Plaintiff said the Defendant's unconscionable conduct consisted of the following: (a) The Defendant reneged on the parties agreement to allow the Plaintiff to complete the Principal Subcontract Works by end March 2016 and terminated the Principal Subcontract notwithstanding the Settlement; (b) The Defendant also failed, refused and/or neglected to properly assess the Plaintiff’s Variation Order Claims (“VO Claims”) as well as Extension of Time Claims (“EOT Applications”); (c) In so doing, the Defendant also misled/enticed the Plaintiff to execute the Supplemental Agreement for the benefit of the Defendant and the Developer when it had no intention to honour its commitment thereunder to fairly re-assess the Plaintiff’s 3 EOT Applications; 6 (d) To cap the atrocities, the Defendant by virtue of its superior position, also engineered the Plaintiff’s termination by interfering with the Plaintiff’s administration of the subcontracts between the Plaintiff and its subcontractors, resulting in various strikes that delayed the Project; and (e) The encashment and paying out of the BG proceeds will result in the Plaintiff receiving monies exceeding the alleged LAD. [9] The Plaintiff stressed that the aforesaid unconscionable conduct are not mere disputes over interpretation of the Conditions of Contract and/or the documents adduced and that far from it, the unconscionable conduct of the Defendant patently demonstrates the Defendant’s abuse of its dominant position against the Plaintiff culminating in a clear-cut oppression of the Plaintiff as its subcontractor. Principles [10] Lest we forget, this Court must state at the outset that the BG is an on-demand performance bond. This can be seen from the clear terms of the BG that the Bank is to pay: “...on the Beneficiary’s first demand in writing without proof or condition and notwithstanding any contestation or protest by the 7 Principal Subcontractor or by the Guarantor or by any other third party...” [11] Payment on the performance bond or BG is only dependent on the terms of the bond or guarantee and not on proof of default of the underlying contract. In Teknik Cekap Sdn Bhd v Public Bank Bhd [1995] 3 MLJ 449 at 454, the court stated as follows: “Having considered the submissions it is relevant to find out what therefore is a performance bond. As I see it there is nothing special or unique in a performance bond. It is in fact a written contract of guarantee by a bank, other financial institutions or in some cases an insurance company, whereby they guarantee the due performance of a contract and in the event of a breach or non-performance of the contract, they guarantee to pay, on a written demand being made, the sum stipulated in the guarantee. Therefore a performance bond is nothing more than a written guarantee, and in order to interpret the obligations of the bank, one need only to look at the written bond itself to determine what are the terms and conditions agreed upon between the parties. A great deal, therefore, depends on the wording of the bond itself.” 8 [12] Be that as it may, the cases have stated that between the beneficiary and the party procuring the bond (the obligor) one is entitled to look at the underlying contract between them, to see if the beneficiary's conduct has been unconscionable in the circumstances surrounding the underlying contract between the parties. [13] That unconscionability has been regarded as a distinct ground to restrain a beneficiary from calling on a BG as separate from fraud, has been firmly established since the decision of the Apex Court in the case of Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Company Sdn Bhd [2012] 4 MLJ 1. The Federal Court speaking through his Lordship Hamid Embong FCJ, endorsed the approach taken by the Court of Appeal as follows: “[17] The Court of Appeal used the following tests and principles in coming to its conclusion, in determining the issue at hand as found in the following passages from its judgment: (i) The principle concerning ‘unconscionability’ was initially propounded by Lord Denning in the case of Lloyds Bank v Bundy [1975] QB 326 where it was held that unconscionable transaction between parties may be set aside by the court of equity. This ‘unconscionable’ category is said to extend to all 9 cases where unfair advantage has been gained by an unconscientious use of power by a stronger party against a weaker (see also Halsbury’s Law of England, (3rd Ed), Vol 17 [1956] at p 682). (ii) On an application for relief against unconscionable conduct, the court looks to the conduct of the party attempting to enforce, or retain benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so (see Commercial Bank of Australia Ltd v Amadio and Another [1983] 46 ALR 402). (iii) In the Singapore High Court, Lai Kew Chai J in the case of Min Thai Holdings Pte Ltd v Suniable Pte Ltd & Anor [1999] 2 SLR 368 opined that ‘the concept of unconscionability involves unfairness, as distinct from dishonesty or fraud, or conduct so reprehensible or lacking in good faith that a court of conscience would either restrain the party or refuse to assist the party’. (iv) It is not possible to define ‘unconscionability’ other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute ‘unconscionability’ 10 would have to depend on the facts of each case. This is a question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization (see Dauphin Offshore Engineering and Trading Pte Ltd v The Private Office of HRH Sheikh Sultan bin Khadifa bin Zayed Al-Nahyan [2000] 1 SLR (R) 117; and Shanghai Electric Group Co Ltd v PT Merak Energi Indonesia [2010] 2 SLR 329) (v) Based on the above considerations, we are of the view that there is no simple formula that would enable the court to ascertain whether a party had acted unconscionably in making a call on an on-demand performance bond or bank guarantee. In the final analysis, whether or not ‘unconscionability’ has been made out is largely dependent on the facts or each case. In every case where ‘unconscionability’ is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith. (vi) In Bocotra Construction Pte Ltd v AG [1995] 2 SLR (R) 262, the Singapore Court of Appeal, stated that ‘a higher degree of strictness applies, as the applicant will be required to 11 establish a clear case of fraud or unconscionability in the interlocutory proceedings. It is clear that mere allegations are insufficient’.” (emphasis added) [14] In relation to restraining a beneficiary from calling the bond, the Court of Appeal in Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd [2011] 7 CLJ 442 held that the provisions of the underlying contract between the beneficiary and the applicant would be relevant to justifying a restrain on the call on the BG by the Defendant beneficiary: “[70] In dealing with an application for injunctive relief (as in the present case) the court must, first of all, differentiate or distinguish whether it is to restrain the beneficiary from making a call or demand on the performance bond; or to restrain the bank/issuer from making payment out of the performance bond to the beneficiary. If it is for the earlier one, the provisions of the underlying contract between the parties must be considered and cannot be disregarded...” (emphasis added) [15] With respect to the threshold test of a seriously arguable case, the Federal Court in Sumatec Engineering (supra) explained as follows: 12 “[39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a ‘strong prima facie case’ was utilized by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish ‘unconscionability’ there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of ‘unconscionability’ which would basically mean establishing a strong prima facie case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of ‘unconscionability’ being committed by the beneficiary 13 (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of ‘unconscionability’ should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man.” (emphasis added) [16] The Court of Appeal case in Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd [2011] 7 CLJ 442 explained the test as follows as summarised in the headnotes: “(6) In order to rely on the ground of ‘unconscionable conduct’ to restrain an abusive call on a performance bond the plaintiff must show manifest or strong evidence of some degree of the conduct complained of; not a bare statement. The evidence need not necessarily be beyond reasonable doubt. The circumstances or conduct must be of such degree as to prick the conscience of a reasonable and sensible man.” (emphasis added) [17] Therefore the test to be applied may be summarised as follows: 14 1. The applicant must be able to satisfy the court that he has a “seriously arguable case that the only realistic inference is that unconscionability has been made out" ; 2. The applicant has to place manifest or strong prima facie case of the alleged unconscionable conduct and not a bare assertion. [18] As for the definition or meaning of “unconscionability”, the Court of Appeal broadly indicated that unconscionability is tantamount to actions that lack bona fides where there are an element of unfairness or some form of conduct which appears to be performed in bad faith: “[47] It is not possible to define “unconscionability” other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute “unconscionable conduct” would have to depend on the facts of each case. This is a question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization (see: Dauphin Offshore Engineering and Trading Pte. Ltd. v. The Private Office of HRH Sheikh Sultan bin Khalifa bin Zayed Al-Nahyan [2000] 1 SLR (R) 117; and Shanghai Electric Group Co Ltd v. PT Merak Energi Indonesia & Anor [2010] 2 SLR 329). 15 [48] Based on the above considerations, we are of the view that there is no simple formula that would enable a court to ascertain whether a party had acted unconscionably in making a call or demand on an “on demand” performance bond. In the final analysis, whether or not “unconscionability” has been made out is largely dependent on the facts of each case. In every case where “unconscionability” is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith.” (emphasis added) [19] The Singapore Court of Appeal in BS Mount Sophia Pte Ltd v Join- Aim Pte Ltd [2012] SGCA 28 at paragraph [36] and [37] said “unconscionability” is a label applied to describe unsatisfactory conduct tainted by bad faith. A precise definition of the concept would not be useful because the value of unconscionability is that it can capture a wide range of conduct demonstrating a lack of bona fides. The Singapore Court of Appeal went on to elaborate that although unconscionability itself may not carry a precise definition what constitutes unconscionable conduct should be reasonably apparent, it is probably very difficult to negligently act in bad faith, if the call on the bond is motivated by improper purposes or such a call cannot be justified with clear evidence or in other situations where the 16 beneficiary is less than certain about his entitlement to call on the bond and the amount and unfairness is also an element to be taken into account. In paragraph [21] it spoke of the test as follows: “When determining if a strong prima facie case has been made out, the entire context of the case must be thoroughly considered, and it is only if the entire context of the case is particularly malodorous that such an injunction should be granted. We must emphasise that the courts’ discretion to grant such injunctions must be sparingly exercised and it should not be an easy thing for an applicant to establish a strong prima facie case.” (emphasis added) [20] In Raymond Construction Pte Ltd v Low Yang Tong and AGF Insurance (Singapore) Pte Ltd [1996] SGHC 136 Lai Kew Chai J at paragraph [5] said: “The concept of ‘unconscionability’ to me involves unfairness, as distinct from dishonesty or fraud or conduct of a kind so reprehensible or lacking in good faith that a court of conscience would either restrain the party or refuse to assist the party. Mere breaches of contract by the party in question ... would not by themselves be unconscionable. 17 [21] In Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1 at paragraph [41] it was observed that: “A determination on whether unconscionability applies in a particular case would therefore depends largely on the material facts....” [22] It goes without saying that whether or not unconscionability has been made out would depend on the particular and peculiar facts of each case taken as a whole and that its determination is very much fact-centric. The Court in Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd [2011] 7 CLJ 442 at p 449 speaking through her Ladyship Zainun Ali JCA (now FCJ) expressed thus: “[4] ... unconscionability is a doctrine which allows the courts to deny enforceability of a contract because of abuses arising out of contract. [5] In my view the principle underlying the unconscionability doctrine is the prevention of oppression and unfair conduct and because the determination of unconscionability is fact specific, courts must consider such a claim on a case by case basis and assess the totality of the circumstances” 18 [23] This Court agrees with learned counsel for the Defendant, Mr William Leong, that mere breaches of the contract, without more, would not by themselves amount to unconscionability. He referred to the following cases: a. Mere breaches of contract is not unconscionability: Raymond Construction Pte Ltd v Low Yang Tong and AGF Insurance (Singapore) Pted Ltd [1996] SGHC 136, Sumatec’s case (supra); b. Alleged breaches of the underlying contract that the technical reports required to call on the performance guarantee was insufficient because it was made in a cursory manner and without using instruments is not unconscionability: Yorker Sdn Bhd v PY Mayora Indah [2014] 9 MLJ 591; c. Alleged breaches of the underlying contract to challenge the decisions of an arbitration tribunal disputed by the obligor is not unconscionability: Sato Kogyo (M) Sdn Bhd v Salini (M) Sdn Bhd [2014] 10 MLJ 614; d. Alleged breaches of contract between the contractor and subcontractor not involving the employer/obligor is not unconscionability: Cobrain Holdings Sdn Bhd v Expertise International A&I (M) Sdn Bhd [2015] 11 MLJ 339; 19 e. A beneficiary calling on the performance bond for breaches of the contract although disputed by the obligor is not unconscionability: El Traco International Pte Ltd v CGH Development Pte Ltd [2000] 4 SLR 290. [24] Mr William Leong stated as a proposition of law that it is unconscionable to call on the performance bond where the obligor was not in default of the contract but the beneficiary commenced a course of conduct which caused the obligor to default or the beneficiary participated or caused to forge or manipulate documents to call on the performance bond. He cited examples culled from the cases below as illustrating the said proposition of law: a. The beneficiary and or its consultants failed to work with the obligor unless they pay a bribe, upon the obligor refusing to pay the bribe and issuing a notice to terminate the contract, the beneficiary commenced a course of conduct which afforded the beneficiary an excuse to call on the performance bond: Bina Jaya Mantap Sdn Bhd v Institute of Technology Petronas Sdn Bhd [2014] 11 MLJ 352; 20 b. The obligor and the architect manipulated and certified certain documents to expose the obligor to LAD when he obligor was not so liable: BS Mount Sophia Pte Ltd v Join-Aim Pte Ltd [2012] SGCA 28; c. Where the obligor’s non-performance of the contract was induced by the beneficiary’s very own actions, where the non-performance was due to the beneficiary’s refusal to pay the interim payments: Royal Design Studio Pte v Chang Development [1992] 2 MLJ 229; d. Where the beneficiary had repeatedly obstructed the obligor from carrying on the works: Raymond Construction Pte Ltd v Low Yang Tong and AGF Insurance (Singapore) Pte Ltd [1996] SGHC 136; e. Where the beneficiary fails to fulfill his major obligation as stated in the contract such as to open a letter of credit: Kvaerner Singapore Pte Ltd v UDL Shipbuilding (Singapore) Pte Ltd [1993] 3 SLR 350; f. Where the beneficiary owes a substantial sum of money to the obligor and had issued bounced cheques yet called on the performance bond: Royal Design (supra) and Raymond Construction (supra); g. Where the beneficiary was aware that the obligor was entitled to the benefit of a force majeure clause for not-fulfilling its contractual 21 obligations due to severe floods but proceeded to call on the performance bond: Min Thai Holdings Pte Ltd v Sunlabel Pte Ltd [1999] 2 SLR 368; h. Where the beneficiary threatened to make a call on the performance bond unless the obligor paid the lower tier subcontractor which had a financial connection to the beneficiary but for which there is no contractual provision allowing the beneficiary to make such a direction: Bains Harding (Malaysia) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1996] 1 MLJ 425. [25] Mr William Leong also distilled the following principle from his analysis of the cases: that where the amount of the performance bond called is excessive to the amount due to the beneficiary, the conduct of the beneficiary in calling on the bond may be unconscionable: a. The beneficiary called for the full amount when part of the works was not due, such part that was premature was unconscionable: El Traco’s case; b. The beneficiary called for the full amount of the performance bond when the contractual amount had been reduced by 65%: GHL Pte Ltd v Unitrak Building Construction Pte Ltd [1999] 3 SLR 604; 22 c. The obligor had completed 95% of the works and the amount called was more than the value of the remaining works and value for repairs: Nafas Abadi Holdings Sdn Bhd v Putrajaya Holdings Sdn Bhd [2004] 1 LNS 127; d. The beneficiary had called on the full amount of the performance bond a greater part of which had already been repaid: Olex Focas Pty v Skodaexport Co Ltd [1998] 3 VR 380 Supreme Court of Victoria. [26] Bearing in mind then the above test, this Court shall proceed to consider the various grounds raised by the Plaintiff/Applicant to ascertain if they meet the threshold test of a strong prima facie case of unconscionability. Whether the Defendant's termination of the Principal Subcontract before the revised completion of end March 2016 is unconscionable [27] It is apposite at this juncture to appraise ourselves of some of the key terms of the Conditions of Contract. By clause 39 the Completion Date is 14 November 2014 unless extended in accordance with clause 43. If the Plaintiff fails to complete the Principal Subcontract Works and the SO certifies by way of the Certificate of Non-Completion the Plaintiff shall pay 23 the defendant LAD at RM70,000.00 a day as stated in Clause 40. Clause 43 Deals with Extension of Time ("EOT"). It provides that upon it becoming reasonably apparent to the Plaintiff that progress of the Works is delayed the Plaintiff is to give notice of the causes of delay and if in the opinion of the SO that the delay is caused by any of the causes listed in sub- paragraphs (a) – (k) therein the SO shall grant a fair and reasonable extension of time for completion of the Principal Subcontract Works. [28] By clause 45 the Plaintiff is required to make good the defects within the Defects Liability Period at its cost and if the Plaintiff fails to do so the Defendant shall be entitled make good the defects and deduct the cost from the retention sum or from the Bank Guarantee. The Defendant is entitled under clause 50 to deduct any money owing by the Plaintiff from any sums payable to the Plaintiff. [29] There is also an amended Clause 51 on "Special Conditions" where by a new Clause 51(c)(iv)(a) has been added to provide that all progress payments payable after the notice of determination shall be suspended until receipt of the Final Contract Sum from the Employer or expiration of the Defects Liability Period (whichever is the later) under the Contract and thereafter until the costs of construction of completion of the Principal 24 Subcontract Works and making good defects thereto, damages for delay [including but not limited to liquidated damage incurred by the Contractor under the Contract] and all other costs, loss or expense incurred by the Contractor shall have been ascertained. [30] The Plaintiff took possession of the Site on 15 May 2012. The Original Completion was 14 November 2014 and the Final Completion Date is 27 December 2014. The Plaintiff pursuant to paragraph 7.1 of the Letter of Award submitted a Revised Master Construction Schedule on 27 September 2012 to complete the entire Project incorporating Blocks A, B and C within 900 days by 14 November 2014. The Architect by a letter dated 15 October 2012 accepted the Works Programme and agreed that pursuant to paragraph 7.1 of the Letter of Award, all parties shall follow the Works Programme. The Revised Master Construction Programme is Exhibit D-4 in the Defendant's 1st Affidavit page 33-76 and the Architect’s letter dated 15 October 2012 is Exhibit D-5 in the Defendant's 1st Affidavit page 77. [31] There is evidence that the Plaintiff was unable to carry out the works in accordance with the Works Programme. The Defendant submitted that delay occurred almost from the beginning and continued to deteriorate over 25 time. The Plaintiff failed to meet its Works Programme and had to revise it 4 times. The Defendant has produced a series of letters written by the Defendant, the consultants and the Plaintiff itself contemporaneously documenting the ever increasing accumulative delay. When it became apparent that the Project could not be completed by the Original Completion Date, the Defendant had to take stock of the situation and confront the consequences of what may follow. A delay in handing over vacant possession to the purchasers would result in the claims from purchasers against the landowner/developer with the cascading consequence of the landowner/developer claiming the same from the defendant as main contractor. [32] Parties entered into negotiations and executed a Supplemental Agreement on 28 October 2014 to address the problem of delay in completion. The salient terms of the Supplemental Agreement are reproduced below: SUPPLEMENTAL AGREEMENT THIS SUPPLEMENTAL AGREEMENT is made this 28th day of October 2014 ... 26 NOW IT IS HEREBY AGREED as follows:- 1. The Contractor has at the request of the Principal Subcontractor agreed to include within the Principal Subcontract completion of the Works in sections (“Sections”) within the meaning in Clause 41 of the Conditions of the Principal Subcontract with Block A and related works necessary for handover of units in Block A to purchasers being Section 1 and balance of the Principal Subcontract Works being Section 2. The sections are as set out as in Appendix A to this Supplemental Agreement. 2. The Dates for Completion of both Section 1 and Section 2 are as per the Date for Completion of the Principal Subcontract Works set out in the Letter of Award, i.e. 14 November 2014. 3. The Liquidated and Ascertained Damages for Section 1 shall be RM30,000.00 and for Section 2 shall be RM40,000.00 for each day the same remain incomplete. 4. The provisions of Clause 41 of the Condition of the Principal Subcontract and all other provisions express or implied relating to Sectional Completion shall apply to the completion of Section 1 and the completion of the Balance of the Works. 27 5. Save and except where expressly amended the Principal Subcontract shall continue to be in full force and effect. For the avoidance of doubt, the Principal Subcontractor’s entitlement to extension of time (if any) for the completion of the Principal Subcontract Works shall not be extinguished. 6. In no event shall any delay failure or omission on the part of either party in enforcing or pursuing any right, power, privilege, claim or remedy, which is conferred by this Contract or this Supplemental Agreement or any of the obligations, be deemed to be or construed as:- (a) a waiver thereof, or of any other such right power, privilege, claim or remedy in respect of the particular circumstances in question; or (b) operates so as to bar the enforcement or exercise thereof, or of any other such right, power, privilege, claim or remedy, in any other instance or at any time thereafter; 7. As this Supplemental Agreement is executed at the request of the Principal Subcontractor, the principle of contra proferentem shall not apply to the construction of this Supplemental Agreement. 28 [33] Instead of a single completion of all the 3 Blocks A, B and C, there is now substituted a sectional completion of Block A under Section 1 and Blocks B and C and the remainder works under Section 2. There was also the reduction of LAD of RM70,000.00 per day to RM 30,000.00 per day for Block A and RM40,000.00 per day for Blocks B and C. What is obvious is that the more onerous operation of the LAD of RM70,000.00 per day is now buffeted with a reduced LAD of RM30,000.00 for Block A with the hope that Block A might be completed soon. Once Block A is completed LAD would stop to run and the Plaintiff may then concentrate on Section 2 of the works and any delay would only attract the reduced LAD of RM40,000.00. It was a workable way forward considering the worrying state of affairs. [34] In the meanwhile the rights of both parties are reserved and preserved under the original Principal Subcontract and that was clearly spelt out in Clause 6 of the Supplemental Agreement. The Plaintiff would have to submit a fresh Works Programme. New target dates of completion were incorporated in the Plaintiff's 3rd and 4th Works Programmes. Block A was supposed to be completed by May 2015 but when the progress was agonizingly slow, the Defendant wrote to the Plaintiff on 6 May 2015, expressing its anxious concerns that Block A would not meet the target date of May 2015 or even June 2015 and likewise too Blocks B and C 29 targeted for completion by January 2016. The Defendant also reminded the Plaintiff that LAD to purchasers is mounting by each month's delay. See Exhibit D-17 at p 110 of Defendant's 1st Affidavit. [35] The Plaintiff again fell behind schedule and submitted a 4th Revised Works Programme to complete the Project by 31 March 2016 which the Defendant used for monitoring purposes. The Defendant also impressed upon the Plaintiff of serious concerns on the increasingly frequent occurrences of strikes and work stoppages. A list of the number of strikes was provided with instruction to catch up on the delay. See letter dated 14 September 2015 in Exhibit D - 18 at p 115 of Defendant's 1st Affidavit. [36] There were further delays on the 4th Revised Works Programme and the lamentable lack of progress such that realistically it would be nigh impossible to complete the Project even by end March 2016. Learned counsel for the Defendant submitted that the Defendant and the consultants had given numerous warnings that the Plaintiff will be liable to pay LAD for the delay and the Principal Subcontract will be terminated unless the Plaintiff put in additional working hours, personnel and equipment to catch up with the 4th Revised Works Programme but to no 30 avail. See one such letter from the Defendant to the Plaintiff dated 30 September 2015 in Exhibit D-9 at p 134 in the Defendant's 1st Affidavit. [37] By that letter, the Defendant informed the Plaintiff, it was under pressure to deliver the units to the purchasers and the Defendant cannot accept delay beyond 31 March 2016 as indicated in Plaintiff’s 4th Revised Works Programme. However, delay, strikes and stoppages continued. Therefore the Defendant issued a notice under Clause 51 on 3 December 2015 and terminated the Principal Subcontract on 22 December 2015 when the default was not remedied. A summary of the documentary evidence produced in Defendant’s 1st Affidavit Volume 1 is set out at paragraph 40 pages 25-27 of the Defendant's Main Submission. [38] A copy of the said Notice to Rectify Breach dated 3 December 2015 is reproduced in full below for an appreciation of the context of the termination: Yuk Tung Construction Sdn Bhd Our ref : YC/CR/DAYA/L/261 Date : 3 December 2015 DAYA CMT SDN BHD Plot 81, Lebuhraya Kampung Jawa, 11900 Bayan Lepas, Penang. 31 Attn : Mr. Nathan Tham Jooi Loon / / Mr. William Tham Wooi Loon / Datuk T.S Lim Dear Sir, CADANGAN MENDIRIKAN PEMBANGUNAN BERCAMPUR 3 BLOK 28 TINGKAT YANG MENGANDUNGI: 1) BLOK A: 526 UNIT SOHO (22 TINGKAT) DAN 10 UNIT KEDAI PEJABAT, 2) BLOK B: 365 UNIT APARTMENT SERVIS 21 TINGKAT, 3) BLOK C: 168 UNIT APARTMENT SERVIS 21 TINGKAT TERMASUK 7 ½ TINGKAT PODIUM TEMPAT LETAK KERETA DAN 2 TINGKAT BASEMEN TEMPAT LETAK KERETA DI ATAS LOT 30844, BATU 6, JALAN SUNGAI BESI, DALAM BANDARAYA KUALA LUMPUR UNTUK TETUAN YUK TUNG LAND SDN BHD - Failure by Principal Sub-Contractor (“PSCor”) to act and allowing further delay at Towers B & C despite Contractor’s “Notice to take action to catch up with further accumulating delays” We refer to and write further to our letter ref. YC/CR/DAYA/245 of 30- 9-15 wherein we had stated in the closing paragraph of the letter that “it is absolutely crucial that you take all measures to catch up with the progress to ensure completion at both Blocks by 31-3-16 and we will be monitoring the situation anxiously ...” (emphases in the original). We have indeed been monitoring the progress since late September 2015 and are in fact alarmed by the continuing further slippage in progress to the critical structural works base on your Progress Report for Period Ending 15-11-15: i. Whilst the Rev 4 programme indicated your completing 3 floors plus the roof structure (about L25 to L27 plus roof structure) at Block B from 28-9-15 to 15-11-15 you managed to complete only about 1.2 floors; and ii. At Block C Rev 4 programme shows your completing 5 floors from 28-9-15 to 15-11-15 (commence L22 to complete L26) but you managed to complete only about 3 floors. 32 Accordingly, we are left with absolutely no alternative but to demand that you act to substantially achieve completion of structural works at Block B up to Roof level and all brickwalls L24 & L25, and Block C up to L26 and all brickwalls up to L21 & L22 within the 14 days period following your receipt of this letter of this letter by recorded delivery. Rev 4 programme indicates completing these as a minimum by mid-December 2015. Failure by you shall entitle us without prejudice to any of our rights and/or remedies under the Principal Sub-Contract and/or at law to determine your employment under the Principal Sub-Contract on the basis that you: are failing to proceed regularly and diligently with the Works in accordance with the requirement of Clause 51(a) paragraph (ii) of the Conditions of Principal Sub-Contract; and/or failing to execute the Works in accordance with the Principal Sub- Contract or persistently neglecting to carry out your obligations under the Principal Sub-Contract in that you are seriously failing to take such measures as to ensure that the completion of Section 2 of the Works are not further delayed beyond that we which we had previously agreed, i.e. end-March 2016. We trust that the above is clear and that you will act accordingly failing which we shall act in accordance with Clause 51(a) paragraph (ii) and/or Clause 51(a) paragraph (iii) of the Conditions of Principal Sub-Contract to determine your employment under the Principal Sub- Contract. Thank you. Yours faithfully, YUK TUNG CONSTRUCTION SDN BHD - sgd – LIM KIM CHAI, JP 33 S.O. & Chairman c.c. Zone Architect - Mr. Gan B.P /Ms.Noor Fadzilaniza Dr Y G Tan Jurutera Perunding - Dr Y.G. Tan / Mr. K.P Lee Global Alliance - Ir. Vincent Tan Quanticonsult Sdn Bhd - Sr. Toh Siew Hock /Sr. Chuan S.S Yuk Tung Construction - Mr. Leow Chee Wah [39] As of the date of termination of the Principal Subcontract on 22 December 2015, there was an accumulative delay of 404 days and after deduction of the 43 days extension, the delay was 361 days. [40] The Plaintiff, on the other hand, contended that the Defendant’s own contemporaneous correspondence reveals an agreement between parties that the Plaintiff will be allowed to complete the Works by “end-March 2016” as extracted from the above Notice to Rectify Breach: “...failing to execute the Works in accordance with the Principal Sub- Contract or persistently neglecting to carry out your obligations under the Principal Sub-Contract in that you are seriously failing to take measures as to ensure that the completion of Section 2 or the Works are not further delayed beyond that we which we had previously agreed, i.e. end-March 2016.” (Emphasis added) 34 [41] The Plaintiff further argued that the facts also disclosed that the Defendant reneged on the “End-March” agreement and terminated the Subcontract vide its Notice of Termination on 22 December 2015. Learned counsel for the Plaintiff submitted that apart from substantially affecting the Plaintiff’s financial as well as reputational well being, the Defendant’s wrongful termination is also maliciously used as a premise for the Defendant to unconscionably call on the BG. [42] Learned counsel for the Plaintiff, Mr Alan Wong, drew the Court's attention to the following unfolding of events which revealed the reasonableness of the Plaintiff's actions and correspondingly, what he castigated as the unconscionability of the Defendant's conduct in the following proposals from the Defendant to resolve the various disputes between the parties: (a) The Defendant will grant an extension of the Principal Subcontract for the Completion of Section 1 by 23 October 2015 and Section 2 by 30 June 2016; (b) In consideration thereof, the Plaintiff will pay the Defendant LAD of RM20,000,000.00; 35 (c) The Defendant is entitled to deduct the said RM20,000,000.00 from the Final Certificate; (d) In the event the Plaintiff fails to complete Section 2 by 30 June 2016, the Plaintiff is entitled to immediate payment of the RM20,000,000.00; and (e) The Plaintiff has to guarantee payment of said RM20,000,000.00 by way of a bank guarantee as well as the 5% retention sum and that the bank guarantee shall be maintained until the revised completion date for Sections 1 and 2, substituting the original contractual completion date. [43] Learned counsel for the Plaintiff was candid enough to admit that the parties did not reach an agreement on the proposed settlement. Nevertheless he argued that it was undeniable that there was no urgency to have the Principal Subcontract terminated considering that: (a) The Defendant agreed to allow the Plaintiff to complete the Works by end-March 2016 at the earliest; or (b) The Defendant was also prepared to have the Works completed by 30 June 2016 as per the settlement. 36 [44] Towards the last quarter of 2015, there was evidence of a chronic cash flow problem on the part of the Plaintiff, with the Defendant having a justifiable doubt as to the ability of the Defendant to catch up with time lag in the Revised Works Programme. The Plaintiff's Director, Mr Nathan Tham wrote in his email of 20 October 2015 to the Defendant acknowledging that the Plaintiff was responsible for the delay. He claimed that the Bank had withdrawn the finance facility because the Plaintiff was unable to obtain the EOT. The Plaintiff had requested the Defendant to allow the EOT in return for the Plaintiff waiving any increase in preliminaries and undertaking to pay the LAD for Blocks A, B and C purchasers directly and also to purchase unsold units. He admitted that without financing, the Plaintiff would not be able to settle the subcontractors and catch up on progress. See email dated 20 October 2016 in Exhibit D-93 of the Defendant's 1st Affidavit Volume 1 page 415. [45] The Defendant responded by its email dated 5 November 2015 stating that it had already rejected the terms that Mr Nathan had proposed at a meeting on 16 October 2015. However, the Defendant had instead, proposed a settlement for the reduction of the LAD payable by the Plaintiff from RM 32 million to RM 20 million provided it is secured by a Bank Guarantee. See Exhibit P-8 of the Plaintiff's 1st Affidavit. 37 [46] Mr Nathan replied in his letter dated 11 November 2015 by referring to what he had understood to be an agreement said to have been made in June 2015 that the Plaintiff would only pay the LAD at the rate payable by the developer/land owner, Yuk Tung Land Sdn Bhd to the purchasers and not the LAD rate payable by the Plaintiff under the Principal Subcontract. See Exhibit P-9 of the Plaintiff's 1st Affidavit. [47] The Defendant denied this and took the Plaintiff's reply in Exhibit P-9 as a rejection of the Defendant's proposal in Exhibit P-8 and informed the Plaintiff that the Defendant would charge the full LAD rate. The Defendant also gave notice to the Plaintiff to comply with the 4th Revised Work Programme. See Exhibit P-10 of the Plaintiff's 1st Affidavit. The Defendant then gave Notice to the Plaintiff to comply with the 4th Revised Work Programme. See Exhibit P-10 of the Plaintiff's 1st Affidavit which is reproduced below to show the lack of a consensus ad idem as late as 12 November 2015: Yuk Tung Construction Sdn Bhd Our ref : YC/CR/DAYA/L/255 Date : 12th November 2015 DAYA CMT SDN BHD Plot 81, Lebuhraya Kampung Jawa, 11900 Bayan Lepas, 38 Penang. Attn : Mr. Nathan Tham / Datuk T.S Lim / Mr. Joe Tan Dear Sir, CADANGAN MENDIRIKAN PEMBANGUNAN BERCAMPUR 3 BLOK 28 TINGKAT YANG MENGANDUNGI: 1) BLOK A: 526 UNIT SOHO (22 TINGKAT) DAN 10 UNIT KEDAI PEJABAT, 2) BLOK B: 365 UNIT APARTMENT SERVIS 21 TINGKAT, 3) BLOK C: 168 UNIT APARTMENT SERVIS 21 TINGKAT TERMASUK 7 ½ TINGKAT PODIUM TEMPAT LETAK KERETA DAN 2 TINGKAT BASEMEN TEMPAT LETAK KERETA DI ATAS LOT 30844, BATU 6, JALAN SUNGAI BESI, DALAM BANDARAYA KUALA LUMPUR UNTUK TETUAN YUK TUNG LAND SDN BHD - Re: Proposed Amicable Settlement and Completion of the Project We refer to your letter dated 11 November 2015. We deny in the strongest terms your allegation that we had agreed to only charge you the LAD based on the amount payable to the end purchasers upon completion of Block A and to consider EOT for Blocks B and C to enable you to obtain financing. We did not at any time agree to such a proposal. We have maintained at all times that your company is liable to the full LAD payable under Clause 40 of the Contract. This is shown in each certificate of payment and our correspondence to you. Following your proposal in your email dated 20 October 2015, we informed you in our letter of 5 November 2015 that we are only prepared to accept an amount of RM20 million provided this is secured by the Bank Guarantee and the 5% Retention Sum. Based upon your letter of 11 November 2015, we take it that you are not agreeable to our proposal. In the circumstances we shall claim the full amount of the LAD under Clause 40 and all rights and remedies available to us under the Contract. 39 Please take note we hold you strictly to the works programme Revision 4. We shall exercise our rights to terminate the Contract if your progress does not meet the works programme. Thank you. Yours faithfully, YUK TUNG CONSTRUCTION SDN BHD - sgd – LAY KOK KEONG Contracts Manager c.c. Zone Architect - Mr. Gan B.P /Ms.Noor Fadzilaniza Dr Y G Tan Jurutera Perunding - Dr Y.G. Tan / Mr. K.P Lee Global Alliance - Ir. Vincent Tan Quanticonsult Sdn Bhd - Sr. Toh Siew Hock /Sr. Chuan S.S Yuk Tung Construction - Mr. Leow Chee Wah [48] Learned counsel for the Plaintiff was also careful to state that, as a matter of fact, there was no concluded settlement. Be that as it may, learned counsel for the Plaintiff proceeded to argue that as the parties were still negotiating, the Defendant should not have, in the midst of the negotiation, issued a Notice to Rectify Breach and thereafter to terminate the Principal Subcontract. Going back to basics, when parties are negotiating, there would of course be offers and counter-offers and when the Defendant takes the view that the negotiations have come to an end as in a stalemate, it would mean that there has been no successful negotiated 40 settlement. Such a conduct cannot by any stretch of the imagination, be said to be unconscionable on the part of the Defendant. Otherwise one would have to contend with a new proposition of law that unless both parties agree that the negotiations have ended, parties must continue to negotiate ad infinitum until a settlement is reached!! That would be a subtle but sustained pressure applied to the parties until a settlement is concluded. No one would dare to begin to negotiate even on a without prejudice basis, for once embarked upon it would be a case of no return! Nothing can be further from the truth. A counter-offer, as has been understood for as long as contract law has been around, cancels the original offer and is a fresh offer altogether. A non-acceptance of that means that there is no negotiated settlement. [49] He censured the so-called termination as nothing but a charade to “justify” the Defendant to call upon the BG, thus unjustifiably denying the Plaintiff’s opportunity to complete the Works as agreed. [50] It must be appreciated that the peculiar and potentially problematic properties of a construction contract is such that upon failure of a contractor to proceed regularly and diligently with the works, the employer may give a notice to rectify breach and thereafter to terminate the contract. In other 41 words, the employer does not have to wait until after the completion date is over before his right to terminate arises. Otherwise the employer would have to endure what may be a painfully slow progress in the works, unrealistically hopeful against hope that the contract would be completed on time when every bit of evidence points to the contrary. Clause 51(a) paragraph (ii) of the Conditions of Contract allows the Defendant to so terminate the Principal Subcontract for the Plaintiff's failure to proceed regularly and diligently with the Works and Clause 51(a) paragraph (iii) for the Plaintiff's failure to execute the Works in accordance with the Principal Subcontract or persistently neglecting to carry out its obligations under the Principal Subcontract, respectively. [51] The clause is reproduced below: "51 Determination of Contractor's Employment (a) Without prejudice to any other rights or remedies which the Government may possess, if the Contractor shall make default in any one or more of the following respects, that is to say: … (ii) if he fails to proceed regularly and diligently with the Works, or 42 (iii) if he fails to execute the Works in accordance with this Contract or persistently neglect to carry out his obligations under this Contract, or … then the SO may give him a notice by registered post or by recorded delivery specifying the default, and if the Contractor shall either continue such default for fourteen (14) days after receipt of such notice or shall at any time thereafter repeat such default (whether previously repeated or not), then the Government may thereupon by a notice sent by registered post or by recorded delivery determine the employment of the Contractor under this Contract."(Emphasis added.) [52] The meaning of the expression "to proceed regularly and diligently" has been dealt with in Kerajaan Malaysia v Ven-Coal Resources Sdn Bhd [2014] 11 MLJ 218. It was explained in West Faulkner Associates v London Borough of Newham (1994) 42 ConLR 144 as follows: "In the JCT contracts the phrase requiring the contractor 'to proceed regularly and diligently with the works' means that the contractor must proceed continuously, industriously and efficiently with appropriate 43 physical resources so as to progress the works steadily towards completion substantially in accordance with the contractual requirements as to time, sequence and quality of work. The clause requires the contractor to proceed both regularly and diligently. Failure in either respect entitles the employer to terminate the contract." [53] That right was available to the Defendant before the Original Completion Date and by extension the Revised Completion Date. That right could not have vaporized and vanished after the expiry of the Completion Dates when in fact the Supplemental Agreement entered into when there was no hope of the Plaintiff completing the Works by the Original Completion Date specifically preserved and reserved the rights of the parties under the Conditions of Contract. The Defendant has the option whether or not to terminate the Principal Subcontract after the Certificate of Non Completion was issued. It is certainly not an easy decision to make. On the one hand there are the repeated overtures from the Plaintiff that things would improve at its end and with the change in their main subcontractor, it should be able to speed up the Works and catch up with lost time. With that in place the Plaintiff submitted their 3rd Revised Works Programme and after falling behind, a 4th Revised Works Programme. On 44 the other hand the Defendant has to weigh the further delay in the Works once the Principal Subcontract is terminated as there is a need to retender the balance Works and the corresponding increase in costs and the LAD claims from purchasers with every day of delay. [54] Surely it cannot be a case that when the Plaintiff submitted the target date for Sectional Completion with its Revised Works Programme and the Defendant having accepted it, the Plaintiff now has the advantage that the Principal Subcontract cannot be terminated, come what may save if it has stopped work or abandoned the Works completely. Surely the Defendant cannot be in a far worse position unless it has expressly agreed. Otherwise the Defendant would have suffered a double whammy: agreeing to a reduced LAD and a Sectional Completion and yet being required to endure however agonizingly slow the progress in the balance Works even when realistically, the balance Works cannot be completed by those target dates. [55] The Plaintiff's submission that by extending the completion date to end March 2015 or June 2015 or for that matter January 2016, the Defendant has affirmed the breach and can only claim damages for delayed completion is misplaced. It was of course only reasonable for the Defendant, after the CNC had been issued, for the Defendant to request 45 the Plaintiff to submit the Revised Works Programme with a target date for completion. The various dates proposed by the Plaintiff in its Revised Works Programme are target dates for completion and they do not take away the right of the Defendant to terminate the Principal Subcontract for the grounds contained in the Conditions of Contract, which remained valid and subsisting, unless varied to the limited extent provided under the Supplemental Agreement. These are dates given by the Plaintiff pursuant to paragraph 7.1 of the Letter of Award. It is not an extension of time under Clause 43 of the Conditions of Contract. [56] The learned author I.N. Duncan Wallace Q.C. in Hudson's Building and Engineering Contracts, Eleventh Edition Volume 1, London, Sweet & Maxwell, 1995 observed at paragraph 4.128 as follows: "....In addition to express provisions for completion by a stated date, virtually all construction contracts, for very good practical reasons, also contain provisions requiring due diligence or expedition by the contractor at all times prior to completion. Thus, the English standard forms provide that the contractor "shall ....regularly and diligently proceed with the [works] .......but in fact, even in the absence of such provisions, it is submitted that there must be an implied term that the 46 contractor will proceed with reasonable diligence, although no doubt, in cases where a completion date is stipulated in the contract, the degree of required progress will be measured against the prospects of completion by that date. The reason for this latter implied term, it is submitted, is that, otherwise, an owner will be forced to stand by helpless until the perhaps distant completion date, notwithstanding a rate of progress clearly inadequate to achieve the promised date and certain to cause irremedial future loss to the owner."(emphasis added) [57] Looking at the dispute that has arisen over the different interpretations on the Supplemental Agreement and the conduct of the parties subsequent to it, and putting the Plaintiff's case at its highest, what we have is a contractual dispute over the validity of termination of the Principal Subcontract, not uncommon in a termination of a construction contract. Whilst one may believe in the rightness and even the righteousness of one's claim as is the Plaintiff's stand and stance here, that does not, in the absence of cogent evidence, convert the Defendant's conduct into something unconscionable altogether. Whether the non-approval of the Variation Orders and the Rejection of the Applications for EOT is unconscionable in the circumstances 47 [58] The Plaintiff accepts that fact that the veracity of the VO claims and EOT claims as well as the parties’ respective contentions in relation thereto are matters to be decided at trial. However the Plaintiff highlighted the following in the hope of persuading the Court that the Defendant's actions or inactions, taken together, would make it unconscionable for the Defendant to call on the BG: (a) There are various outstanding VO and EOT Claims that remains as disputed issues to date; (b) The Project was fraught with legacy issues, which the Plaintiff assisted the Defendant to resolve; (c) Pertinently is the issue surrounding the Caisson Wall where the Plaintiff, in good faith, agreed to accept the novation of the Defendant’s existing subcontractors and to assist in the construction of the Caisson Wall as a means to resolve the legacy issues in demolishing the existing structure; (d) Arising from the various disputes, including the outstanding EOT Claims, parties executed a Supplemental Agreement; 48 (e) Notwithstanding the execution of the Supplemental Agreement, parties specifically agreed under the Supplemental Agreement that the parties in relation to the EOT Claims dispute are preserved: “...For the avoidance of doubt, the Principal Subcontractor’s entitlement to extension of time (if any) for the completion of the Principal Subcontract works shall not be extinguished.” [59] In all this debate about who would suffer more and who would be in a more dire financial stress or distress, it must not be forgotten the plight of the purchasers of the uncompleted units; they have every right to damages for late delivery. They have to look to the landowner/developer to pay who in turn would look to the Defendant, who would in turn look to the Plaintiff under the LAD Clause. The Plaintiff's applications for EOT has been rejected and only 43 days granted. The Plaintiff wanted to appeal and they would have every right to. The Consultants have replied to say that whilst the Plaintiff may appeal, they were not inclined to change their minds unless there are fresh grounds submitted for the appeal for EOT. See Exhibit D-90 of the Defendant's 1st Affidavit 2nd Volume p 409 and Exhibits D-68, D-69, D-70, D-71 and D-72 of the Defendant's 1st Affidavit 2nd Volume pages 284,308, 309, 310, 311, 312 and 316. 49 [60] The Consultants have given their reasons for rejecting the EOTs Applications. Whether these are reasonable, would have to be decided at trial. For the moment, this Court must ask if the evidence challenging their refusal to grant any further EOTs shows a prima facie case of unconscionable conduct on the part of the Defendant. Learned counsel for the Defendant, Mr William Leong, summarised the reasons given by the Consultants as follows: 1. No extension was given for EOT 1 because the Caisson Wall which is to be built in 83 days is a replacement for the original designed reinforced concrete wall which was to take 138 days. There should thus have been a saving of 55 days. The delay in the Caisson Wall was due to the Plaintiff's poor coordination works, insufficient manpower and machinery. Exhibit D-64 Defendant's 1st Affidavit Volume 2 p 271. 2. Only 23 days was granted for EOT 2 and the others were rejected as not being additional works or major changes. The Consulting Engineer did not grant the extension due to delay caused by the Plaintiff's own lack of knowledge or experience on the scope of works. Exhibit D-74 Defendant's 1st Affidavit Volume 2 p 320. 50 3. Only 20 days was granted for EOT 3 on the condition that the Plaintiff can justify that the events fell on the critical path. The additional works did not fall on the critical path and therefore no extension was given for the rest. No extension was given for the claim of 118 days because the delay was due to the Plaintiff's own poor coordination works, insufficient manpower and machinery which caused significant delay. Exhibit D-81 Defendant's 1st Affidavit Volume 2 p 349. [61] The dates of the various submissions of the EOT 1, EOT 2 and EOT 3 were on 17 April 2013, 14 November 2014 and 27 November 2014 respectively. The EOT 1 was rejected on 13 May 2013. The extension 23 days was granted on EOT 2 on 15 December 2014 and the extension 20 days for EOT 3 was also granted on the same day. The many letters written by the Defendant to the Plaintiff reminding them of the increasing chronic and critical delays and the lamentable slow progress in the Works with LAD increasing by the days, are summarised in a table at pages 25-27 of the Defendant's Main Submission to oppose the Injunction. There were 14 letters all in and were written contemporaneously with key events such as different milestones in the delay, LAD kicking in, strikes and work stoppages and finally a Notice dated 30 September 2015 for the Plaintiff to 51 rectify the breaches and to catch up with the schedule provided by the Plaintiff in the 4th Revised Work Programme. [62] One would have expected a vigorous objection from the Plaintiff if factually, the various concerns addressed in the above letters were not true. Indeed the Plaintiff by their letter to the Defendant dated 14 March 2014 responded by proposing a mitigation plan and a catch-up programme, having secured a commitment from its subcontractors to work extended hours to catch up with the delay. The Plaintiff also pledged its commitment to increase manpower, improve site planning, appoint full time dedicated staff to handle non-compliance report, complete the TNB sub-station by 18 October 2014 and also place orders for major equipment. Further the Plaintiff also acknowledge the delay and replaced its main subcontractor and produced 4 mitigation plans including a pledge to commit further resources and to work additional hours to catch up with the schedule of Works. [63] The Plaintiff, of course, was entitled to appeal on the EOT applications which they did, being dissatisfied with the decisions of the Consultants. The Defendant and the Consultants informed the Plaintiff that unless there were fresh grounds, they would not change their mind. 52 Exhibits D-68, D-69, D-70, D-71 and D-72 Defendant's 1st Affidavit Volume 2 pages 284, 308, 309, 310, 311, 312 and 316. [64] The Defendant explained that out of the sum of RM 6,656,741.77 in the VO claimed, RM 5,567,000.00 had been certified and paid. The balance had not been certified because the Plaintiff had failed to provide the necessary particulars. The reason had been communicated to the Plaintiff. Even if there is a balance sum owing, that has been overtaken by Clause 51(c)(iv)(a) where parties have agreed that all progress payments after the notice of determination shall be suspended. [65] At this stage this Court cannot conclude that a strong prima facie case has been made out by the Plaintiff, such that it would be unconscionable for the Defendant to call on the BG. Whether the Supplemental Agreement had been procured by the Defendant unconscionably for its benefit and that of the Developer when it had no intention of re-assessing the Plaintiff's 3 EOT Applications [66] Learned counsel for the Plaintiff, Mr Alan Wong, submitted that it is clear from the Supplemental Agreement that the disputes on the EOT Claims/Applications are to be deferred and to be decided at a later stage 53 for it make no sense to preserve and keep it as a “live” issue. In other words, the actual time for completion is still very much a “live” issue when the Defendant wrongfully terminated the Plaintiff and called upon the BG. He then distilled the essence of the Defendant's conduct in defiantly reneging on the aforesaid position as well as the “End-March Agreement”/Settlement as a clear abuse of its superior position, especially by virtue of having the BG in hand. He sought to persuade the Court that such unconscionable conduct/abuse culminating with the calling of the BG must be restrained, especially considering the Defendant had already benefited from the completion of Section 1 of the Project following the Supplemental Agreement. [67] To support his proposition, he referred to the following passage of Ramly Ali JCA (now FCJ) in the earlier cited Kejuruteraan Bintai Kindenko case (supra) as follows: “[43] It was also held in that case (Commercial Bank v. Amadio) that ‘a transaction will be unconscientious within the meaning of the relevant equitable principles only if the party seeking to enforce the transaction has taken unfair advantage of his own superior bargaining power, or of the position of disadvantage in which the other party was 54 placed. The principle of equity applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.’ [44] Mason J in the same case above ruled as follows: Historically courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of “unconscionable conduct” is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special situation of disadvantage.” (emphasis added) 55 [68] It is true that there was a clause 5 in the Supplemental Agreement that reads as follows: "5. Save and except where expressly amended the Principal Subcontract shall continue to be in full force and effect. For the avoidance of doubt, the Principal Subcontractor’s entitlement to extension of time (if any) for the completion of the Principal Subcontract Works shall not be extinguished." (emphasis added) [69] As can be seen, the Plaintiff's entitlement to extension of time is something for the Plaintiff to prove and not a given as is clear from the qualification in the words "(if any)". In as much as the Plaintiff may put in fresh application for EOT, the Consultants are not required to re-assess it especially if no fresh grounds are canvassed. All that the Consultants have said is that if the application is based on the same reason, then what they have decided stands. There is nothing unconscionable about that. [70] The Defendant and its Consultants have written letters to the Plaintiff stating that the delay on the Plaintiff's part was due to 6 factors referred to in the Defendant's 1st Affidavit: the Plaintiff's non-performance, incompetence, lackadaisical attitude, lack of co-ordination with subcontractors, frequent change of staff and lack of finance. 56 [71] The Plaintiff's tacit admission and acceptance of responsibility for the delay is reflected in its letter dated 14 March 2013 where the Plaintiff had directed the blame to the festive season and the shortage of sand in the market. The Plaintiff proposed in its letter a mitigation plan and a catch-up programme. The Plaintiff also impliedly admitted to its shortcomings and promised to increase the manpower, site accessibility, site planning, machinery and equipment planning and to appoint full time dedicated staff to address the non-compliance reports. See Exhibit D-11 Defendant's Affidavit Volume 1 pages 87-89. [72] The Plaintiff by its letter of 8 April 2013 admitted the delay was due to the non-performance of its subcontractor, Million Aim Sdn Bhd and agreed to replace the subcontractor with another. Such disputes on extension of time and the number of days of entitlement are a fertile area of conflict in a construction contract and in the absence of cogent evidence of unconscionability in rejecting the EOT application or in giving less than what is reasonably applied for, this Court would not at this stage conclude that a strong prima facie case of unconscionability has been made out. Whether or not an EOT application should have been granted and if so for how long, would be a matter for trial. At this stage even if an EOT 57 application has not been considered reasonably or has been rejected unreasonably, that does not, in the absence of some egregious element, amount to an unconscionable conduct. [73] It was also clearly declared in Clause 7 of the Supplemental Agreement that the Agreement had been executed at the request of the Plaintiff. [74] It has often been stated that if a party acts within his contractual rights, then his motive is immaterial. Here there was no complaint of the Defendant's superior bargaining position when the Principal Subcontract was entered into. It was a substantial contract of no small size, of RM270 million. It was part of a public listed company and would stand to gain a handsome profit if it could complete the Principal Subcontract Works on time. The terms of the Supplemental Agreement have been reproduced above and there is nothing unfairly oppressive to the Plaintiff; if at all it has a humanizing element after examining the reality of the Plaintiff's failure to complete by the Completion Date, it sought to mitigate the contractual LAD of RM70,000.00 per day by sectionalising it to RM30,000.00 and RM40,000.00 per day for Section 1 and Section 2 Works respectively. All the other rights and obligations of the parties are reserved and preserved 58 under the Principal Subcontract. As such it could hardly be said to be a case where a party with a superior bargaining power has sought to bully into submission a party with little or no negotiating power. Whether the Defendant by virtue of its superior position, also engineered the Plaintiff’s termination by interfering with the Plaintiff’s administration of the subcontracts between the Plaintiff and its subcontactors, resulting in various strikes that delayed the Project [75] According to the Plaintiff, from the exchange of affidavits, it is also patently clear that the Defendant had interfered with the Plaintiff’s administration of the contracts between the Defendant and its subcontractors. The Defendant’s interference in turn led to escalation of strikes and work stoppages as: (a) The Defendant communicated directly with the Plaintiff subcontractors, spreading rumors and alleging that the Plaintiff is in financial difficulties, insinuating that the Plaintiff will be unable to pay its subcontractors; and (b) Besides creating confusion and affecting the Plaintiff’s subcontractors’ morale, this led to the said subcontractors demanding 59 for advance payment from the Plaintiff (and its collaborative partner), which effectively held the Project to ransom. [76] The Plaintiff argued that, needless to say, the Defendant’s interference caused further detriment to the Plaintiff in that the Plaintiff is put to greater financial hardship, apart from the hardship already suffered arising from: (a) The Defendant’s wrongful assessment/rejection of the 3 EOT Applications; and (b) The Defendant rejecting/holding up of the Plaintiff’s VO Claims. [77] Learned counsel for the Plaintiff contended that the Defendant terminated the Contract on allegation that the Plaintiff failed to proceed regularly/diligently with the Principal Subcontract Works or failed to take measures to ensure completion of the same. According to him, it was clear that the alleged breach was as a result of the Defendant’s own doing in: (a) Wrongfully rejecting the 3 EOT Applications as well as VO Claims; and (b) Pertinently, fostering disharmony and encouraging discord amongst the Plaintiff’s subcontractors by maliciously spreading rumor of the 60 Plaintiff’s financial position, which in turn lead to various strikes by the Plaintiff’s subcontractors. [78] Learned counsel for the Plaintiff concluded that the alleged breach (which is denied), forming the basis of the termination, is clearly induced by the Defendant’s unconscionable conduct. He further pointed out that it is pertinent to note that the performance bond is to be utilized only in the event that the Plaintiff breaches the Contract: “If the Contractor fails to execute the Contract or commits any breach of his obligation under the Contract, the Government or the S.O. on its behalf may utilize and make payments out of or deductions from the said Performance Bond or any part thereof in accordance with the terms of this Contract.” [79] He excoriated the Defendant’s conduct as prima facie unconscionable where having first engineered the breach, the Defendant thereafter rely on the same to terminate the Contract as well as to call upon the Bond. He railed that this must be restrained. [80] In support thereof, the Plaintiff referred to the following passage in the earlier cited Kejuruteraan Bintai Kindenko case (supra): 61 “[59] In Singapore, instances where “unconscionability” was held to be applicable are: a) where the beneficiary made a call based on a breach induced by their own default (Kvaerner Singapore Ltd v. UDL Ship Building (Singapore) Ltd. [1993] 3 SLR 350)...” [81] The Defendant's counsel cautioned against accepting unquestioningly the allegation that the Defendant had instigated the strikes by the Plaintiff's subcontractors by spreading rumors about the Plaintiff's financial difficulties. He invited the Court to look at what is incontrovertible and undeniable: the list of some 7 subcontractors and suppliers who have not been paid by the Plaintiff to the tune of RM 5.2 million at paragraph 15.1 of the Defendant's 2nd Affidavit and in Exhibit D-10. The Plaintiff had claimed that the strikes and stoppages were due to the subcontractors' and workmen's poor management of their own cash flow as the Plaintiff asserted that they had been paying their subcontractors and workers adequately and promptly. However, upon termination of the Contract, the truth emerged that the subcontractors, suppliers and workers have not been paid. Some were owed more than RM 2 million like the air-conditioner subcontractor. Others like the plumber has not been paid since April 2015. It cannot be overemphasized that prompt payment is the life blood of 62 subcontractors and suppliers in the construction industry. The Defendant said that they had at their end, being mindful of this, paid the Plaintiff promptly and even in advance. However, this did not cascade down such that the subcontractors, suppliers and workers were not paid. Without payments, they have to dump their tools for that is the natural response of hungry stomachs. They went on strike and stopped work. [82] Seeing that there are 2 versions on the strikes and stoppage of works, one of the Defendant spreading rumors of the Plaintiff's dire financial strains and the other, the subcontractors, suppliers and workers not being paid, this Court will have to ask which is more probable at this stage. The Plaintiff has not refuted the allegation of non-payment to the subcontractors, suppliers and workers. One can suppose that downliners in the construction ladder are practical people; if they have been paid, why should they succumb to rumors? If they have not been paid than it is like a car without fuel. The engine just would not start to run. Work is stalled; delay sets in. It has a contagion effect. [83] The Defendant is candid in admitting that they did meet up with the subcontractors, but this was at their expressed request, as they had failed to obtain payment from the Plaintiff. The Defendant agreed to meet with the 63 subcontractors and suppliers out of humanitarian reasons and to resolve a potentially crippling problem. [84] The Defendant could not conceal their disappointment with the Plaintiff here, describing their conduct of blaming the Defendant for the strikes and stoppages of work as particularly galling as the Defendant had assisted the Plaintiff on various occasions with their cash flow. The Defendant reminded the Plaintiff that they did not deduct the LAD from the Plaintiff's interim payments although they were entitled to do so, to assist the Plaintiff's cash flow so that the Plaintiff may be able to pay its subcontractors and perhaps the strikes would be averted. Reference is made to the Defendant's 1st Affidavit Volume 1 pages 142 to 143. [85] Lest the Plaintiff might have forgotten, the Defendant sought to refresh its memory by referring to the Plaintiff's request for early release of certificate for payment No. 37 of RM 6,962,234.69 with the expressed direction to the Plaintiff to use the money to pay the subcontractors, carpenters, bar benders and plasterers who had all stopped work. See the Defendant's letter dated 9 September 2015 Exhibit D-24 of the Defendant's 1st Affidavit Volume 1 page 144. 64 [86] It is said that the faintest ink is better than the most retentive memory, a saying attributed to Confucius. The Defendant recalled and retrieved a letter from the Plaintiff dated 29 May 2015 requesting for an interest-free RM 5 million advance. The Defendant was willing to consider this provided the Plaintiff could give its consent for the payment to be made directly to the subcontractors and suppliers. However, for reasons best known to the Plaintiff, it was not keen to give this consent. References are made to the Plaintiff's letter dated 29 May 2015 in Exhibit D-61(d) of the Defendant's 1st Affidavit Volume 1 page 263 and the Defendant's letter dated 8 July 2015 in Exhibit D-60(a) of the Defendant's 1st Affidavit Volume 1 page 242. [87] Based on the above documentary evidence, I am not in a position to hold that a strong prima facie case of unconscionable conduct on the part of the Defendant has been established by the Plaintiff. The truth as to whether the Defendant had engineered the default and termination or was it a case of the Plaintiff trying to engineer itself out of paying its contractual liabilities, is something that can only be established at trial. Whether the encashment of the BG would unjustly enrich the Defendant as the amount exceeds the Defendant's LAD claim and thus unconscionable 65 [88] Perhaps the most persuasive argument of the Plaintiff is that the encashment of the BG will also result in the Defendant being unjustly enriched. That if true would be unconscionable indeed. Learned counsel for the Plaintiff, Mr Alan Wong, laid the planks for this attack on the call on the BG as follows: (a) The LAD as at 13 November 2015 (the imposition of which is disputed) stands at RM2,770,000.00; (b) Whereas the maximum LAD imposable as at termination stands at RM23,330,000.00; (c) The Defendant had already failed to remit payment of RM2,628,304.78 under Interim Payment Certificate No. 40. This amount is on top of the Retention Sum of RM13,500,000.00 currently held by the Defendant; (d) In the event that the Defendant is permitted to receive a further RM13,500,000.00 under the Bond, the Defendant will be holding monies belonging to the Plaintiff amounting to RM29,628,304.80; (e) The aforesaid RM29,628,304.80 is clearly far in excess of the LAD as at termination or the RM20,000,000.00 as per what the Plaintiff said to be the Settlement. 66 [89] He pointed out that, notwithstanding the LAD provisions under the Contract, the Defendant now claims that its estimated losses is in the region of RM54 million, including Purchasers’ LAD of RM6,991,942.80 and RM11,058,009.42. However, not an iota of evidence was presented to remotely support the RM54 million contended in the affidavit. He concluded by imploring this Court that, considering the various other unconscionable conduct of the Defendant mentioned aforesaid as well as the fact that the Defendant itself is not sure of the amount that it is allegedly entitled to, the Defendant ought to be restrained from calling and/or receiving payment under the BG. [90] Mr William Leong for the Defendant objected vehemently to this simplistic approach of assessing the damage suffered by the Defendant. He submitted most vigorously that the Plaintiff had approached the LAD claim unrealistically, with no attention being given to the number of days of delay. He argued from that which was not disputed i.e. that there had already been 361 days of delay. The LAD payable by the Plaintiff at RM 70,000.00 per day from 27 December 2014 (Final Completion Date) to 20 November 2015 (Completion of Block A) and RM40,000.00 per day from 20 November 2015 to 22 December 2015 (Date of Termination) is RM 24,310,000.00. Had the LAD continued until 30 June 2016 which is what 67 the Plaintiff said should be the extended completion date before which the Plaintiff cannot terminate, then the LAD would have amounted to RM33,230,000.00. He further submitted that the retention sum of RM13.5 million cannot be taken into account because it is held for a different purpose and cannot be used to pay the LAD and the new contractor. There is merits in the Defendant's submission as to allow the Plaintiff to "swap the security" as it were by substituting the Retention Sum of RM 13.5 million would be rewriting the contract for the parties having in mind the purpose of the BG procured before the commencement of the Principal Subcontract Works. [91] The Defendant in paragraph 7(c) of its 1st Affidavit has set out in detail the breakdown of the damage suffered or to be suffered estimated to be RM 54,786,986.38. At this stage of the interlocutory proceedings, this Court needs to be satisfied that there is some basis for the Defendant's assertion as to their exposure to the loss and damage delineating from various heads of claim arising out of the termination of the Principal Subcontract. It is only too true that there would be the purchasers' LAD claim against the Developer for late delivery under the standard form sale and purchase agreement entered into with the Developer under the Housing Development (Control and Licensing) Act 1966 and they in turn 68 would look to the Defendant as Main Contractor to pay them what they have to pay out. That claim by the purchasers for LAD is a continuing claim until practical completion and vacant possession is given to the purchasers. Even taking generously that Block B and C should have been completed by 30 June 2016 which is nigh soon, the purchasers' claim for LAD alone was estimated to be RM11,056,009.42. [92] The Defendant has also given notice to the Plaintiff that it would have to be responsible for all GST payments because no GST would have been payable if the project had been completed by the Final Completion Date. It was submitted that this Court may take judicial notice of the fact that GST was implemented on 1 April 2015. The GST payable is estimated to be RM 6,963,638.61. See letter dated 20 August 2015 in Exhibit D-91 of the Defendant's 1st Affidavit 2nd Volume page 410. [93] Then there are the usual loss and expense damages heads of claim incurred to complete the Project as set out in paragraph 7(c) of the Defendant's 1st Affidavit. These will be confirmed upon the taking of final measurements and appointment of the new contractor to complete the Project in accordance with Clause 51(c) of the Conditions of Contract. The Defendant submitted that these are fair estimates of the cost, expenses 69 incurred and damage suffered by them and therefore there is no basis for lambasting the Defendant for what the Plaintiff has perceived as unjustly enriching the Defendant at the expense of the Plaintiff if the full amount of the BG were to be released. [94] At any rate under Clause 37 (d) of the Conditions of Contract, if there is any credit standing in favour of the Contractor on completion of making good of all defects, shrinkages or other faults which may appear during the Defects Liability Period and upon giving of the Certificate of Completion of Making Good Defects for the whole of the Works, the surplus shall be refunded to the Plaintiff. [95] Learned counsel for the Defendant concluded that the Defendant is not guilty of unconscionable conduct in terminating the Principal Subcontract and calling on the BG. The Plaintiff failed to carry out the Principal Subcontract Works regularly and diligently. There was substantial delay and increasingly frequent strikes and work stoppages. The Defendant had lawfully terminated the Principal Subcontract in accordance with the terms thereof. As at the termination date on 22 December 2015 there was a delay of 361 days and the total amount of losses and damages payable by the Plaintiff inclusive of LAD exceeds RM54,786,986.38. There is thus a 70 basis for the Defendant to call on the BG. With that this Court is inclined to agree. This Court is satisfied that there is no danger or evidence of the Defendant unjustly enriching itself. Whether the balance of convenience tilts in favour of the Plaintiff or the Defendant [96] As the Plaintiff has not discharged the burden of showing a strong prima facie proof of unconscionable conduct on the part of the Defendant, the injunction application to restrain the call on the BG, would correspondingly be discharged. However parties had proceeded to submit on the balance of convenience test and out of deference to counsel, this Court shall nevertheless weigh and consider where the balance should tilt. [97] The Plaintiff sought to persuade the Court that the balance of convenience in this matter tipped heavily in favour of granting the injunction sought. Learned counsel was positioning this argument at an inviting angle by seeking the agreement of this Court that it is more equitable to temporarily restrain on the calling of the BG and/or receipt of payment thereunder for such restrain merely postpones the realization of the Defendant’s security until the alleged breaches and losses are proved. 71 [98] In support thereof, the Plaintiff referred to the following passage from the earlier cited case of Kejuruteraan Bintai Kindenko (supra) as follows: “[93]...Parties should not be allowed to take advantage of one another in making a demand or call on the performance bond particularly when they are not entitled to do so. It must be stressed that a performance bond can operate as an oppressive instrument and a demand or call by a beneficiary can sometimes be abusive. In the event that a beneficiary calls on the bond in circumstances where there is prima facie evidence of fraud or unconscionable conduct, the court should step in to intervene at the interlocutory stage to avoid further injustice to the other party. As has been expressed by the Court of Appeal in GHL Pte Ltd v. Unitrack Building Construction Pte Ltd & Anor (supra), “we agree that a beneficiary under a performance bond should be protected as to the integrity of the security he has in case on non-performance by the party on whose account the performance bond was issued, but a temporary restraining order does not prejudice or adversely affect the security, it merely postpones the realisation of the security until the party concerned is given an opportunity to prove his case.” (emphasis added) 72 [99] Learned counsel for the Plaintiff summoned the following factors to support his stand as summarised below: (a) The BG is currently still valid and as long as the BG is kept valid, the temporary restrain does not prejudice or adversely affect the security but merely postpones the realization of the same. (b) The Defendant company is clearly used as a shield protecting the ultimate employer, i.e. the Developer Yuk Tung Land Sdn Bhd (“Yuk Tung Land”); (c) It is instructive that both the Defendant and Yuk Tung Land shares the same directors, although YT Land’s supposed rosy state of financial health is no indication of the Defendant’s financial affair; (d) In any event, out of the Defendant’s supposed current assets of RM82,862,565.00, RM73,231,232.00 is locked down in trade receivables owing from certain directors of the Defendant; (e) In other words and especially considering that the amount under the BG together with existing security is in excess of the LAD claimed, there is high likelihood that the Plaintiff will be unable to recover any amount paid out if the Plaintiff ultimately succeed in its Suit; 73 (f) Last but not least, the Plaintiff’s reputation as well as that of its parent company, Daya Materials Berhad, a public listed company listed on Bursa Malaysia, is also at stake considering that the termination and the calling of the Bond thereafter, were premised on the alleged breach of the Plaintiff. [100] Considering the above and especially the fact that the BG is still valid, the Plaintiff implored upon this Court to restrain the Defendant from calling and/or receiving payments under the BG in light of what the Plaintiff has painted as the unconscionable conduct on the part of the Defendant. [101] In further support thereof, the Defendant relied heavily on the following passage of Ramly Ali JCA (now FCJ) in the earlier cited Kejuruteraan Bintai Kindenko case (supra): “[107] In this case, both of the performance bonds have been extended by the appellant, at the request of the beneficiary and the employer (GPSB). The right and interest of the beneficiary pursuant to the performance bonds is secured. Its right to call on the same is secured. On the other hand if the sums guaranteed under the performance bonds were to be released to the beneficiary, the appellant would suffer great losses and damage which cannot 74 be adequately compensated; and the reputation of the appellant would be at stake. The balance of convenience thus tipped heavily in favour of the appellant.” (emphasis added) [102] The Defendant, on the other hand, submitted that it is critical to the completion of the Project for the Defendant to obtain the proceeds of the BG to pay for the cost and expenditure that the Defendant had paid or are immediately payable. The cost and expenditure for the completion of the Project was estimated at RM54,786,986.38 at the time the Defendant’s 1st Affidavit was filed. This is set out in paragraph 7(c) of the Defendant’s 1st Affidavit. [103] The Plaintiff’s delay is evidenced by contemporaneous documents issued by the Defendant, its consultants and even the Plaintiff himself. The Plaintiff’s delay is set out in paragraphs 34 to 37 (a)-(n) of the Defendant’s 1st Affidavit. Where the Plaintiff has a prima facie reasonable basis to terminate the Principal Subcontract for failure of the Plaintiff to regularly and diligently proceed with the Works, the Defendant would have every contractual right to call on the BG. Both parties have at the outset of the contract agreed that the Plaintiff as Contractor should furnish the Defendant this on-demand BG which the Defendant may call upon if there 75 is a breach of the Principal Subcontract. As the Defendant has, prima facie, a reasonable ground for terminating the contract, there is then no basis for restraining the call on the BG. Those in the construction industry understand a BG to be as good as cash, to be released upon a call on the Bank in the event of an event of default and termination of the contract. [104] To allow a restrain each time the default is being challenged together with the termination, the efficacy of a BG would be diluted and more dire than that, denuded altogether such that what has been bargained for is not what one is getting. The law realizing that this is not what a BG is supposed to be in practice, has declared that there must be a strong prima facie case of an unconscionable conduct on the beneficiary of the BG and only then may a restraining order be issued to prevent a call on the BG. [105] If contractually, the Defendant is entitled to call on the BG, then it is not open to the Plaintiff as obligor of the BG to tell the Defendant that they should use their own funds to finance the balance of the Project and not the funds from the release of the BG. [106] There is also the public element in the interest of the purchasers to have their purchased units delivered to them as soon as possible. It is common knowledge that besides from LAD claims, there is the increased 76 costs in the tender for a new contractor to finish completing the balance Works. The purpose of the BG is to provide for this buffer and cushion the consequences arising out of the termination and any surplus, upon the finalization of the accounts on completion, will have to be refunded to the Plaintiff. [107] This Court is not persuaded that the Defendant would not be in a position to pay back the Plaintiff should the Plaintiff succeed at the trial. The Defendant's financial resources can be seen in the audited accounts exhibited as Exhibits D-95 and D-96 of the Defendant's 1st Affidavit Volume 2 pages 433 -458. Yuk Tung Land has current assets of RM 137,084,569 and net assets of RM 35,961,962.00 as at 31 December 2014. The Defendant has current assets of RM 59,331,248.00 and net assets of RM 23,531, 327.00 as at 31 December 2014. Granted the Defendant and the Owner/Developer are owned by the same shareholders and managed by the same Directors, the financial position would in all likelihood improve upon the completion of Blocks B and C as the end financiers would be releasing the full purchase price of the completed units upon practical completion and handing over of vacant possession to the purchasers. 77 [108] There is no evidence to suggest that the Defendant would not be in a position to pay back the Plaintiff should they succeed at the trial or for that matter, the damages arising out of a so-called wrongful termination. Whilst the Defendant must continue to manage cash flow for the balance Works to be completed and the payment of purchasers' LAD, the Plaintiff has no further obligation to complete the Works. It only has to suffer what Banks would ordinarily do if the amount secured by the BG is released, which is to realize their security for the BG. This is a risk which the Plaintiff would have appraised itself at the outset when the BG was procured as part of the condition of the Principal Subcontract. [109] The so-called dent and damage to the reputation of the Plaintiff must also be viewed dispassionately from the other perspective, which is that Yuk Tung Land together with its Main Contractor Yuk Tung Construction Sdn Bhd (the Defendant here) would suffer in its reputation in not being able to deliver within the contractually agreed period the certificate of practical completion and with it the need to pay promptly the purchasers' LAD claims. [110] The Defendant also drew the Court's attention to the fact that the Plaintiff is no longer part of a public listed parent company as the shares of 78 the parent company had been disposed of to a RM10.00 company and the public listed parent company had refused to provide an extension of its corporate guarantee to guarantee that the Plaintiff would complete the Project according to the terms of the Principal Subcontract. [111] I am not satisfied that the balance of convenience would tilt or tip in favour of the Plaintiff such that the injunction to restrain the call on the BG should be granted. Pronouncement [112] Taking into considerations all the arguments for and against the injunction, this Court is satisfied that the Plaintiff has not shown a strong prima case of unconscionable conduct on the part of the Defendant to justify a restrain on the Defendant from making a call on the BG or to receive the proceeds from the BG. The Plaintiff's case taken at its highest would show a bona fide dispute on the termination of the Principal Subcontract that would have to go for trial. Nothing had come near to shocking the conscience or pricking it to the point of a reflex reaction of revulsion at the so-called reprehensible conduct of the Defendant. [113] In the upshot, I had dismissed the Plaintiff's application in Enclosure 3 for an injunction to restrain the Defendant from making a call on the BG 79 or to receive the proceeds from the BG. At any rate, damages would be more than an adequate remedy being a monetary sum that the parties are disputing over and that overall, the balance of convenience would tilt in favour of the Defendant. The ad-interim injunction granted was discharged. [114] Damages shall be assessed for the time when the injunction was in place pursuant to the usual undertaking on damages that the Plaintiff had given. By consent the parties agreed that any assessment of damages shall be had at the end of the trial. [115] I had also awarded costs of RM 15,000.00 to be paid by the Plaintiff to the Defendant. Allocator shall be paid before the extraction of the order of costs. [116] Upon the order being given discharging the injunction, learned counsel for the Plaintiff informed the Court that he had his client's instruction to appeal and that he would file in the Notice of Appeal the next day. He asked for an interim stay of the order pending the filing of an Erinford injunction. [117] Learned counsel for the Defendant asked the Court to hear the Erinford injunction there and then. 80 [118] The Court was of the opinion that a formal application for an Erinford injunction should be filed and the reasons carefully considered before disposing of the Erinford injunction application. The Court therefore granted a temporary stay of the order discharging the injunction until the disposal of the Erinford injunction application duly filed in Enclosure 25. Whether there are special circumstances justifying an Erinford Injunction pending the Plaintiff's appeal [119] The power of the Court in granting an Erinford injunction has been clearly spelled out in the case that bears its name in Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448 at p. 454 where Megarry J states the principle with much perspicuity as follows: “I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant has made out a sufficient case to have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party 81 ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative effects of granting or refusing and injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all." (emphasis added) 82 [120] The above passage and the principle that it enunciated have been cited with approval by our Federal Court in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147. [121] In Cocoa Processors Sdn Bhd v United Malayan Banking Corp. Bhd. & Ors. [1989] 1 CLJ (Rep) p 436 the plaintiff owed the 1st and 2nd defendants quite a substantial sum of money secured by a debenture. Upon default receivers and managers were appointed over the properties and assets of the plaintiff. The plaintiff claimed for damages for wrongful appointment of the receivers and managers. The plaintiff's application for an injunction to restrain the defendants from disposing, selling and dealing with its assets pending trial of the action was dismissed. The Court held that there was no serious issue to be tried. Pending appeal to the Supreme Court then, the plaintiff applied for an Erinford injunction to preserve the status quo. In refusing the Erinford application, his Lordship Mohamed Dzaiddin J (as the former CJ then was) opined as follows at p 439: “ ... I am of the view that whether or not the plaintiff succeeds in the appeal and in the main action will not be affected by its failure to obtain this further interim injunction. It must be remembered that the plaintiff’s claim against the defendants is for damages for wrongful appointment of receivers and managers. The 1st and 2nd defendants 83 being a commercial and merchant bank respectively will no doubt satisfy any money judgment ordered by the Court. Therefore, responding to Mr. Bala’s fear and anxiety on behalf of the plaintiff, I must say quite confidently that there is no likelihood of a successful appeal against my decision being rendered nugatory. Secondly, a more serious issue to be considered here is the balance of convenience. Based on the facts and circumstances of the present case, I find the balance of convenience lay in favour of the injunction pending appeal being refused. I accept the submission of Miss Solomon that the assets of the plaintiff company had depreciated and the longer it remains in its present position, the greater the hardship being inflicted on the defendants. Further, in the event the plaintiff’s claim being dismissed, the assets having been depreciated quite considerably, the defendants may not be able to reap the fruits of their success under the debentures. On the other hand, should the plaintiff succeed in its claim ultimately, for damages, the defendants will have no difficulty in settling the judgment. Lastly, I agree with Tunku Alina that in the present case damages seem to be a suitable and adequate remedy. The plaintiff would be adequately compensated in damages for the temporary damage 84 between now and the date when its appeal is heard if my decision is reversed by the Supreme Court." (emphasis added) [122] As is evident above, in the case of recovery of a monetary judgment, the issue of nugatoriness was considered from the perspective of whether the banks as defendants could satisfy any judgment that may be granted in the plaintiff's favour and not so much that the plaintiff's assets having been sold, cannot be reverted back to the plaintiff. [123] A similar approach was taken in Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd (No. 2) [2002] 5 MLJ 662. There the plaintiff had failed in its application for an injunction compelling the defendant to surrender vacant possession of the defendant's land to the plaintiff and to restrain the defendant from interfering and obstructing the plaintiff in carrying out its obligations under the "Oil Palm Operation and Maintenance Contract". The main reliefs in the writ action was a declaration that the defendant had wrongfully repudiated the said contract for no reasonable cause and damages to be assessed and for accounts inquiry into the fruits harvested. In dismissing the plaintiff's application for an Erinford injunction application, his Lordship Ramly Ali J (now FCJ) set out his reasoning as follows at p 174: 85 "In order to assist me in exercising my discretion on this matter, it is pertinent to see that there would be no impediment to the plaintiff enforcing any judgment in its favour should the plaintiff succeed in its intended appeal as well as the main writ. Whether a successful appeal by the plaintiff against my earlier decision being rendered nugatory or not, we have to go back to the plaintiff’s claim against the defendant in its writ and statement of claim. I have scrutinised all the prayers in the plaintiff’s statement of claim (as listed above) and satisfied that whether or not the plaintiff succeeds in the appeal and in the main action will not be effected (sic) by its failure to obtain the present Erinford injunction. There would be no impediment to the plaintiff enforcing any judgment in its favour should it succeed in its appeal and ultimately in its writ. There is no evidence to show that the defendant, would be in no position financially, to honour the judgment obtained by the plaintiff. Therefore, I must say quite confidently that there is no likelihood of a successful appeal against my decision being rendered nugatory." (emphasis added) [124] It is trite law that the Plaintiff as Applicant must show that should its appeal be successful, it would prove to be nugatory. However, what we 86 have here is the release of a sum of RM13.5 million which has to go towards the balance of the Principal Subcontract Works to be done for the completion of the Project. If the Plaintiff is successful on appeal, it would have every right to claim for the money back from the Defendant. Generally, a payment of money cannot render a successful Appellant's appeal nugatory because there is nothing sacrosanct, sacred or special of the money. As the balance of the Project for all practical purposes is unlikely to be completed until the end of the first quarter of 2017, the Plaintiff if successful, can always proceed with a garnishee order against the Owner/Developer who would have received the payment of the balance purchase price for the units from the end financiers and who would in turn also have to pay the Defendant for the balance Principal Subcontract Works done. Both the trial in this Court, realistically rescheduled to 22 till 26 August 2016, as well as the appeal to the Court of Appeal, would in all probability have been disposed of. [125] I agree with Mr Wiliam Leong for the Defendant that the subject matter of the appeal is not something that is irreversible if the injunction is not granted such as in cases restraining the approval of a planning application as in the Erinford Properties Ltd case (supra) or prohibiting 87 the hold of an annual general meeting as in Wong Heng Meng v Prince Guneratnam & Ors [2010] 9 MLJ 457. [126] In Mitsubishi Corp & Ors v Sepangar Bay Power Corp Sdn Bhd & Ors [2009] 9 MLJ 121 at p 140 it was held that the no Erinford injunction would be granted if the Defendant would be able to return any monies collected from the financial institutions in the event the applicant succeeds in the Court of Appeal. On the argument that the financial statement does not show the beneficiary of the bond to have a good financial health, the High Court held that that is not the sole criterion for determining its solvency. [127] This Court finds it difficult to appreciate the anxious concerns expressed by the Plaintiff that the Defendant does not have the financial capabilities to repay back the RM 13.5 million BG. Here, Yuk Tung Land as Developer of the Project has given its direct undertaking to the Court that it would repay the Plaintiff the sum of RM 13.5 million in the event the Plaintiff's appeal is allowed. See Exhibit D-117 of the Defendant's Affidavit affirmed on 24 May 2016 (Enclosure 32). That is on top of the Defendant's direct undertaking to this Court given through its counsel, Mr William Leong, should the Plaintiff be successful in its appeal. The usual penal 88 clause shall be included in the order of the Court with the directors name being mentioned such that upon a failure to comply, a contempt action may be proceeded with against the directors. [128] Mr Alan Wong for the Plaintiff conceded that the direct undertaking of a Defendant to refund monies released to it in a BG coupled with a further undertaking of another company owned by the same shareholders of the Defendant which company is the Developer/Owner of the land on which the Project is developed to also make a refund of the said sum released under the BG, is not common and not usually procured or offered. Here the Defendant and its related company Yuk Tung Land as Developer have voluntarily offered their respective undertakings to the Court. An undertaking to the Court is a most serious matter and a breach of it would expose the directors of both the companies to contempt of court. Generally the Plaintiff has to be satisfied with the Defendant showing sufficient means or resources to pay the Plaintiff should the Plaintiff be successful upon appeal or that it is not in a dire financial straits or that it is financially solvent for all practical purposes. [129] Quite apart from the undertakings of the Defendant and the Developer, both of them have disclosed their financial soundness in their 89 audited accounts as at 31 December 2014. The Developer has the financial capacity and capability to meet their undertaking to repay the sum so released as the gross development value of the Project is RM 633,821,960.00. See paragraph 70(d) of the Defendant's 1st Affidavit affirmed on 29 December 2015. The Developer too has current assets of RM 137,084,569.00 and net assets value of RM35,241,643.00 according to its 2014 audited financial statements. See Exhibit P-9 of the Plaintiff's Affidavit affirmed on 6 May 2016. [130] As for the Defendant, it has a net asset value of RM 23,531,317.00 according to its 2014 audited financial statements in Exhibit P-10 of the same Plaintiff's Affidavit. The Plaintiff's allegation that the Defendant's trade receivables of RM 73,231,232.00 is "locked up" is without merits as there is a Note 4 to the Defendant's audited accounts expressing providing that the trade receivables are collectable under normal credit terms granted to trade clients ranging from 30 days to 120 days. Note 4 further states that the said sum is due from a company in which certain directors have an interest i.e. the Developer. Learned counsel Mr Alan Wong then expressed concerns that the audited accounts were that of 31 December 2014. As the audited accounts of 31 December 2015 were not ready yet, the Defendant subsequently filed a management account for year ended 31 December 90 2015 to show that the trade receivables have not vanished or written off but very much intact. See Exhibit D-115 in Enclosure 31. [131] Subsequent to the date of the Defendant’s 1st Affidavit, the Defendant affirmed an Affidavit to oppose the Erinford injunction in Enclosure 29. It detailed that the actual cost and expenses incurred or to be incurred by the Defendant is RM68,418,598.95 at paragraph 10.2. A sum of RM41,760,612.24 is paid or payable as at at 31 March 2016. Particulars of these cost and expenses are set out in the table below: Item Descriptions Amount Paid/ Payable as at 31.03.2016 (RM) Estimated costs from 1.4.2016 until 31.3.2017 (RM) Total (RM) 1 1.1 1.2 1.3 1.4 Purchasers’ LAD Purchasers’ LAD for Block A Purchasers’ LAD for shop Purchasers’ LAD for Block B Purchasers’ LAD for Block C 5,502,618.08 234,117.12 16,124,270.46 274,212.18 762,161.59 - - - 6,264,779.67 234,117.12 16,124,270.46 274,212.18 2 GST Charges: (a) from 1.4.2015 to 22.12.2015 2,496,736.23 - 2,496,736.23 91 (b) Balance work award x 6% - 6,300,541.64 6,300,541.64 3 Interest on Loans 686,538.24 - 686,538.24 4 Staff costs 1,755,690.54 1,323,870.60 3,079,561.14 5 Project Management Fees 5,366,250.00 3,577,500.00 8,943,750.00 6 Additional costs to complete the balance work 5,000,000.00 13,705,874.16 18,705,874.16 7 Rubbish clearing costs 300,000.00 - 300,000.00 8 Payment on behalf of Daya CMT to Kone Lift 210,000.00 - 210,000.00 9 Lands rental for fabrication yard (30,000 + 35,000) x (12 months + 6 months demobilization & defects liability store) + 6% GST 1,240,200.00 - 1,240,200.00 10 To settle the outstanding wages of Plaintiff’s workers to remove them from site kongsi 446,300.00 - 446,300.00 11 Security guard charges 277,371.39 988,038.72 1,265,410.11 12 Purchase of the air-cond units 1,846,308.00 - 1,846,308.00 Total 41,760,612.24 26,657,986.71 68,418,598.95 92 [132] In the Defendant's Affidavit in Enclosure 29, the Defendant also set out the cost incurred to rectify defects as at 31 March 2016 is RM2,794,633.83, the estimated costs to rectify defects from 1 April 2016 until the estimated completion date of 31 March 2017 for Blocks A, B & C is RM4,928,557.51. The supporting documents for the cost are marked collectively as Exhibit “D-112”. Particulars of these costs are as follows in paragraph 11 of Enclosure 29: Item Descriptions Actual amount as at 31.03.2016 (RM) Estimated cost from 1.4.2016 until 31.3.2017 (RM) Total (RM) 1 Defect rectification costs for Block A and podium 2,794,633.83 1,975,057.51 4,769,691.34 2 Defect rectification costs for Block B & C - 2,953,500.00 2,953,500.00 Total 2,794,633.83 4,928,557.51 7,723,191.34 [133] As such, the cost and expenditure exceeds the RM29,628,304.80 comprising of RM13,500,000.00 to be received under the BG, RM13,500,000.00 held as Retention Sum and RM2,628,304.80 withheld under Interim Certificate No. 40. There is no basis for saying that the 93 Defendant would be receiving a surplus sum and thus unjustly enriched and hence conduct unconscionable, if the sum of RM 13.5 million under the BG is released. [134] In addition, the new contractor, R & C Cergas Teguh Sdn Bhd had requested for an advance sum of RM5,000,000.00 for the advance payment and rental deposit required by the various suppliers. The Defendant stated that they needed to release the money requested in order for the new contractor to continue with the Project and for catching-up on the delay caused by the Plaintiff. See Exhibit D-113 (Enclosure 29) a copy of a letter dated 31 March 2016 from R & C Cergas Teguh Sdn Bhd. Pronouncement [135] Taking all the above factors into consideration, the Plaintiff has not shown that if it is successful, the appeal would be nugatory or that there are special circumstances justifying an Erinford injunction pending appeal. The Erinford application was thus dismissed with costs of RM5,000.00 to be paid by the Plaintiff to the Defendant. [136] As only the Writ has been filed so far by the Plaintiff without a Statement of Claim being filed, the Court directed the Plaintiff to file the Statement of Claim and serve the same within 2 weeks. The Defendant is 94 to file its Defence and Counterclaim if any, 2 weeks thereafter. Trial dates were fixed from 22-26 August 2016. On 26 May 2016 when the Court delivered this decision, Mr Alan Wong applied for a stay of the Court's order dismissing the Erinford application pending his client's application on an urgent basis to the Court of Appeal. The Court granted a temporary stay of the order until Tuesday 5pm of 31 May 2016. Dated: 27 June 2016. Sgd Y.A. TUAN LEE SWEE SENG Judge Construction Court High Court Malaya For the Plaintiff/Applicant: Alan Wong and Andrew Heng (Messrs Zain Megat & Murad) For the Defendant/Respondent : William Leong Jee Keen (Messrs William Leong & Co) Date of decision: 4 May 2016 for Enclosure 3 26 May 2016 for Enclosure 25

Tika 2.6.0

WA-24C(ARB)-2-01/2016

PLAINTIF Kerajaan Malaysia DEFENDAN Tasja Sdn Bhd

30/05/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c62bc82e-9cdb-4070-989f-7e6fd2828cf4&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C(ARB)-2-01/2016 In the matter of an Arbitration between Tasja Sdn Bhd and Kerajaan Malaysia . And In the matter of an Arbitration before Mr Chong Thaw Sing And In the matter of an award dated 10 December 2015 (referred to as “Final Award”) And In the matter of Section 42 of Arbitration Act 2005 And In the Matter of Order 69 Rule 6 Rules of Court 2012 BETWEEN KERAJAAN MALAYSIA ... PLAINTIFF 2 AND TASJA SDN BHD ... DEFENDANT THE JUDGMENT OF YA TUAN LEE SWEE SENG INTRODUCTION [1] By a written contract (PWD203A (Rev 10/83) dated 1 August 2001, the Plaintiff had appointed the Defendant to construct and complete a project known as “Kompleks Jabatan Laut Wilayah Selatan, di Tg Pelepas, Johor” (“Project”) upon the terms and conditions stipulated therein for a total contract sum of RM49,990,000.00 (“Contract”). [2] It is not disputed that the works in the Project had been satisfactorily completed by the Defendant. A Certificate of Practical Completion dated 14 October 2004 was issued by the Plaintiff which certified that the whole of the works “were satisfactorily completed on 14 September 2004”. [3] Subsequently, a dispute arose between the parties concerning the Defendant’s claim against the Plaintiff for payment 3 of work done relating to the subsequent topping up of surcharge carried out during the agreed surcharged period and removal upon completion. The claims of the Defendant were made under: (1) section 2: items 2.4.2 and 2.4.3; and (2) section 3: items 3.1.7 of the Bills of Quantities (“BQ”) which formed an integral part of the Contract. [4] The dispute was referred to Arbitration under clause 54 of the Contract. On 5 April 2013, Mr. Chong Thaw Sing was appointed by the Director of the Kuala Lumpur Regional Centre for Arbitration as the sole Arbitrator to adjudicate the dispute. After a full hearing culminating in an Award, the learned Arbitrator found in favour of the Defendant and made the following Award: (1) the Plaintiff shall pay the Defendant the principal sum of RM1,116,299.27 for outstanding work done, within four weeks from the date of the Award. Failing this the Defendant is entitled to impose a further interest at a rate of 5% per annum until the sums are paid; (2) the Plaintiff pays the Defendant pre-award interests on the principal sums awarded in the amount RM305,307.85 within four weeks from the date of the Award. Failing this the 4 Defendant is entitled to impose a further interest at 5% per annum until the sums are paid; (3) the Plaintiff shall pay the Defendant RM25,000.00 as agreed cost of the reference (party and party cost) within four weeks thereafter; and (4) the Plaintiff shall bear in full the cost of the Award which the learned Arbitrator had taxed as RM60,500.00 and the Defendant shall be entitled to immediate recovery of any sum it had earlier advanced towards payment for any part of the cost of the Award. [5] Only para (2) of the award which deals with the pre-award interest is relevant here. [6] Pursuant to clause 55(g) of the Contract, it is expressly provided that the Award “shall be final and binding on the parties”. Pleadings [7] The matter relating to interests was expressly referred to Arbitration for consideration. At para 17 of the Defendant’s Statement of Case, the claim for the pre-award interest was expressly pleaded and prayed for. At para 8 of its Statement of 5 Defence, the Plaintiff made a bare denial to the Defendant’s claim for pre-award interest. In its written submissions, the Defendant had expressly submitted and prayed for pre-award interest at para 134 of the ‘Claimant’s Written Submission (1)’. [8] On the other hand, there was no submission by the Plaintiff on this crucial issue. The Defendant argued that the failure to submit a crucial issue such as this would be fatal to the Plaintiff. Prayer [9] This is an application by the Plaintiff filed under s. 42 of the Arbitration Act 2005 (“AA 2005”) to refer the following question of law concerning a final arbitral award dated 10 December 2015 (“Award”): “Sama ada Penimbangtara telah terkhilaf dari sisi undang- undang apabila memutuskan bahawa Penimbangtara mempunyai bidang kuasa untuk membenarkan ‘pre-award interest’?” which being translated reads: "Whether the Arbitrator erred in law in deciding that an Arbitrator has jurisdiction in granting 'pre-award interest' ?" 6 Principles [10] In determining the issue, it was submitted by learned counsel for the Defendant that this Court will need to review the law governing an Arbitrator’s power to grant pre-award interest along with the recent decision of the Court of Appeal in Far East Holdings Bhd v Majlis Ugama Islam Dan Adat Resam Melayu Pahang [2015] 4 MLJ 766. [11] Learned counsel for the Defendant, Mr Ben Chan, canvassed the following main grounds in opposing the application: (1) That part of Court of Appeal’s judgment in Far East Holdings case stating that the Arbitrator did not have power to grant pre-award interest under s. 33(6) of AA 2005 is distinguishable; (2) Far East Holidngs case , on pre-award interest is obiter dictum and wrongly decided; (3) The learned Arbitrator did not err; (4) No intervention even on error of law; and (5) The Plaintiff is not entitled to raise a new point where it had failed to raise and submit in the Arbitration proceeding. 7 [12] On the subject question, the relevant statutory provisions are those contained, inter alia, in the AA 2005 and the Civil Law Act 1956. In so far as AA 2005 is concerned, ss. 30(1), (5) and 33(6) of the AA 2005 are relevant and they are reproduced here: “ 30. Law Applicable to Substance of Dispute (1) Unless otherwise agreed by the parties, in respect of a domestic arbitration where the seat of arbitration is in Malaysia, the arbitral tribunal shall decide the dispute in accordance with the substantive law of Malaysia. (2) to (4) … (5) the arbitral tribunal shall, in all cases, decide in accordance with the terms of the agreement and shall take into account the usages of the trade applicable to the transaction.” (emphasis added) “33. Form and Contents of Award (1) to (5) … (6) Unless otherwise provided in the arbitration agreement, the arbitral tribunal may- 8 (a) award interest on any sum of money ordered to be paid by the award from the date of the award to the date of realisation; and (b) determine the rate of interest.” (emphasis added) [13] With respect to the Civil Law Act 1956, s. 11 is relevant, where it provides: “In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: ..” (emphasis added) [14] As submitted by learned counsel for the Defendant, there is no doubt that the power to award interest under s. 11 of the Civil Law Act 1956 is conferred upon “the Court” and in terms which refer to “proceedings tried in any Court”. In Arbitration proceedings, it is a settled law that the parties’ submission to arbitration of all their differences is to be construed in the light of the principle of law regulating the payment of interest enshrined in s. 11 of the 9 Civil Law Act 1956. In various cases discussed below, the Malaysian Courts had relied on the said s. 11 in empowering an Arbitral tribunal the power to grant pre-award interest. Speaking of its rationale, the Federal Court in Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan a/l Kaliannan [2013] 6 MLJ 149 held at p. 159: “[26] It is trite law that interest is not a punishment but a compensation for the party entitled to the money for being deprived of its use. …” [15] Mr Ben Chan, for the Defendant, argued that it is a well- established law that an Arbitrator appointed by parties to adjudicate their dispute under a contract has power to award pre- award interest in the absence of any specific prohibition in the contract to claim such interest. It cannot be over emphasized that "an Arbitrator derives this power not from Arbitration Acts but from the submission to him which necessarily clothes him the implied powers." There is to be implied in the submission an authority in the Arbitrator to award interest conformably with s. 11 of the Civil Law Act 1956. An award of an Arbitrator is “recognised as binding and be enforced by entry as a judgment” (s. 38 AA 2015). 10 The English position [16] The Defendant's learned counsel referred to the English Court of Appeal’s case in Chandris v Isbrandtsen-Moller Co Inc [1950] 2 All ER 618. One of the questions before the Court of Appeal was whether or not interest could be awarded by an Arbitrator on the amount awarded for demurrage. It was pointed out by the English Court of Appeal that the Arbitrator’s power to award interest was derived from the submission to him which clothed him with the power to decide “all matters in difference” according to the existing law of contract, exercising every right and discretionary remedy given to a court of law; i.e. s. 3 of the Law Reform (Miscellaneous Provisions) Act 1934 (which is equivalent to s. 11 of our Civil Law Act 1956.) In delivering the leading judgment, Tucker L.J. in holding that an Arbitrator had such power to award interest, stated at p. 623E-G: “Counsel for the charterers argued that the judgment was based on the assumption that it was the Civil Procedure Act 1833, which gave the arbitrator his power to award interest, and that, once that Act was repealed, all such powers had gone, and unless the arbitrator had been given fresh powers, https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5321271700499111&bct=A&service=citation&risb=21_T23703114220&langcountry=MY&linkInfo=F%23GB%23ALLER%23vol%252%25sel1%251950%25page%25618%25year%251950%25sel2%252%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5321271700499111&bct=A&service=citation&risb=21_T23703114220&langcountry=MY&linkInfo=F%23GB%23ALLER%23vol%252%25sel1%251950%25page%25618%25year%251950%25sel2%252%25 11 he had none. I think, however, that the real basis of Edwards v Great Western Ry Co (1851) 11 CB 588 was that the arbitrator derived his powers, not from the Act of 1833, but from the submission to him which necessarily gave him the “implied powers” referred to in the language of Lord Salvesen which I have just quoted, and I see no reason why, since the Act of 1934, an arbitrator should not be deemed impliedly to have the same powers. Therefore, with diffidence, having regard to the view expressed by the Divisional Court on this matter, I have come to the conclusion that in such a case as the present the arbitrator has power to award interest, and accordingly, to that extent, I think this appeal should succeed and the Podar case [Podar Trading Co Ltd., Bombay v Francois Tagher, Barcelona [1949] 2 All ER 62] be overruled.” [17] To appreciate what was overruled better, the reasoning of Lord Goddard CJ in Podar Trading Co Ltd., Bombay v Francois Tagher, Barcelona [1949] 2 All ER 62] is reproduced below at p 67: "The Law Reform (Miscellaneous Provisions) Act, 1934, was passed on 25 July 1934, and the Arbitration Act, 1934, was 12 then already law, having been passed on 17 May of that year. The only reference to interest in the latter Act is in s 11 which provides that: “A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt.” In the Law Reform Act it is provided by s. 3 that: “(1) In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, [award] interest … on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.” By sub-s (2) of that section the provisions of the Civil Procedure Act, 1833, which deal with interest, namely, ss 28 and 29, are repealed. So, although in the Arbitration Act, 1934, a provision is made for interest but only on the amount of the award from the date of the award, s 3 of the Law Reform Act gives no power to an arbitrator to give interest either on debt or damages. Moreover, as ss 28 and 29 of the Civil Procedure Act are repealed, we feel 13 driven to hold that not only have arbitrators no power to give interest on damages, but they have been deprived of the powers which they had so long as the sections of the Civil Procedure Act were in force and can now only give it in circumstances in which it was recoverable at common law. It may well be that this was overlooked when the Act was passed, but, if it was a casus omissus or if the power was taken away per incuriam, it must be put right by the legislature. No doubt, the association could amend their rules and provide that interest could be awarded. Then those persons who have made contracts which are subject to the rules and regulations of the association would be bound by an award which gave interest because as a matter of contract they would have agreed to pay if the award was against them. We feel obliged to hold in this case that there was no power to award interest as there is no provision in the rules for it." (emphasis added) [18] As can be seen our s. 21 of the Arbitration Act 1952 is in pari materia with the English s. 11 of their Arbitration Act 1934 and our s. 11 of our Civil Law Act 1956 in pari materia with s. 3 of the English Law Reform (Miscellaneous Provisions) Act 1934. 14 The Australian position [19] As highlighted by Mr Ben Chan for the Defendant, the question on point was also considered by the Australian High Court in Government Insurance Office of NSW v Atkinson-Leighton Joint Venture [1979-1981] 146 CLR 206. The majority of the High Court of Australia (Stephen, Mason and Murphy JJ) answered the question in the affirmative. Stephen J in his judgment examined very carefully on previous authorities relating to the same point, at pp. 234-5: “There exists no express grant of power to award interest either in the submission or in the Arbitration Act 1902. The power to award interest which is conferred by s. 94 of the Supreme Court Act 1970 is conferred upon “the Court” and in terms which refer to “proceedings” and to “judgment”. The learned primary judge held that, in a case such as the present, agreement was to be implied that the arbitrator might award interest upon the same principles as applied to awards of interest by the Supreme Court. His Honour relied upon Chandris v. Isbrandtsen-Moller Co Inc and Evans v National Pool Equipment Pty Ltd. The G.I.O.’s appeal over this issue was dismissed unanimously by the Court of Appeal; Reynolds 15 J.A., with whom Samuels J.A. agreed regarded the authorities as establishing that a term is to be implied in the contract that the arbitrator should decide according to the existing law of contract and should exercise every right and discretionary remedy given to a court of law. Mahoney J.A. was of the same view; such a power may be, he thought, be implied in every arbitration, including those originating in voluntary submission. These conclusions accord with what is now a well established line of modern authority in England, beginning with the overruling of Podar Trading Co Ltd, Bombay v Francois Tagher, Barcelona by the Court of Appeal in Chandris in 1950. Following Chandris case in London & Overseas Freighters Ltd v. Timber Shipping Co S.A, Edmund Davies L.J. expressed similar views and his Lordship’s dissenting judgment was upheld on appeal. Of Lord Morris’ judgment on that appeal the latest edition of Russell on Arbitration, 19th ed. (1979) p 356 observes that “it has been recently recognised in the House of Lords that the power includes a discretion as to the amount of interest. …” (emphasis added) 16 [20] His Lordship, Stephen J. concluded at p. 237: “In those circumstances I would affirm the views expressed by the New South Wales Court of Appeal concerning arbitrators’ powers regarding the award of interest. Not only is it in conformity with the great weight of authority; that authority appears to me to involve no error of principle. Moreover, it is wholly beneficial in its operation, conferring, as it does, upon arbitrators power to do justice as between parties to a submission by enabling them to award interest up to the date of the award, upon amounts found due. This is a power the need for which is the greater in times of dear money, reflected in the prevailing high rates of interest. …” [21] In support, Mason J. in the same case stated at p. 247: “The parties’ submission to arbitration of all their differences is to be construed in the light of the new principle of law regulating the payment of interest enshrined in s.94. There is to be implied in the submission an authority in the arbitrator to award interest conformably with s.94 because the Supreme Court is given by the Arbitration Act a supervisory function in relation to an arbitration and because an award of an 17 arbitrator is enforced as if it were a judgment or order of the Court (s.14).” [22] He further pointed out that the majority decision in Atkinson- Leighton was adopted by the subsequent Court of Appeal (NSW) in IBM Australia Ltd v National Distribution Services Ltd (1991) 100 ALR 361 comprising of Kirby P, Clarke and Handley JJA. At p 375, Clarke JA held: “It is perhaps worth mentioning that since the decision in Atkinson-Leighton, the House of Lords in President of India v La Pintada Compania Navigacion SA [1985] 1 AC 104 has held that, by the law of England, where parties agree to arbitration they “impliedly agree that the arbitration is to be conducted in accordance in all respects, with the law of England unless, which seldom occurs, the agreement of reference provides otherwise”. It was held that arbitrators had the power to award interest as a court might do under a statute. The judgment of Mason J in Atkinson-Leighton was cited with apparent approval.” [23] More recently, Macfarlan JA in Nassif v Caminer [2009] NSWCA 45 (NSW-Court of Appeal) expressed the same view at p. 26,882: 18 “[42] … Although the legislation does not confer power upon arbitrators to make orders under it, parties may, expressly or impliedly, empower arbitrators to exercise powers analogous to those which would be able to be exercised by the relevant court (see also, as to the power of arbitrators to award interest in circumstance analogous to those in which court would award interest: … Government Insurance Office of NWS v Atkinson-Leighton Joint Venture. …” The Position in India [24] Mr Ben Chan's initiative and industry took him to India in his survey of cases in the Commonwealth on this point of the powers of an Arbitrator to grant pre-award interest. He pointed out that the decisions in Chandris and Atkinson-Leighton were adopted by Supreme Court of India in Secretary, Irrigation Department, Government of Orissa v G.C. Roy [1992] AIR 732, SC. It adopted the following passage from the Halsbury’s Laws of England, Vol 2: “37. At page 303, para 580 dealing with the award of interest, it reads: An arbitrator or umpire has power to award interest on the amount of any debt or damages for the whole or any 19 part of the period between the date when the cause of action arose and the date of award.” [25] The Supreme Court of India in the same case then summarised the legal principles at para 45: “45. Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the arbitrator, he shall have the power to award interest pendent lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes – or refer the dispute as to interest as such – to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendent lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view.” (emphasis added) [26] Subsequently, another Supreme Court of India in Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa v NC 20 Budharaj [2001] 2 SCC 721 clarified that an arbitrator had jurisdiction to award interest for the pre-reference period in the absence of any specific prohibition in the contract to claim or grant any such interest. Towards the end of his Lordship’s judgment, Doraiswamy Raju J. in that case held at pp. 744-5 [25-26]: “25. … The submission that the Arbitrator cannot have jurisdiction to award interest for the period prior to the date of his appointment or entering into reference which alone confers him power is too stale and technical to be countenanced in our hands, for the simple reason that in every case the appointment of an arbitrator or even resort to court to vindicate rights could be only after disputes have cropped up between the parties and continue to subsist unresolved, and that if the Arbitrator has the power to deal with and decide disputes which cropped up at a point of time and for the period prior to the appointment of an arbitrator, it is beyond comprehension as to why and for what reason and with what justification the arbitrator should be denied only the power to award interest for the pre-reference period when such interest becomes payable and has to be awarded as an accessory or incidental to the sum awarded as due and payable, taking into account 21 deprivation of the use of such sum award to the person lawfully entitled to the same. 26. For all the reasons stated above, we answer the reference by holding that the Arbitrator appointed with or without intervention of the court, has jurisdiction to award interest, on the sums found due and payable, for the pre- reference period, in the absence of any specific stipulation or prohibition in the contract to claim or grant such interest." (emphasis added) The position in Singapore [27] The position in Singapore is exemplified by the case of Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [1995] 1 SLR 548 (p. 556 to 557), where Lai Kew Chai J. held as follows: “With regard to the specific exercise of awarding interest in arbitration, it is the law that generally interest should be awarded on a successful claim. An arbitrator who awards a sum of money but fails to award interest to compensate the successful claimant accordingly has prima facie misconducted himself in the technical sense of the word: 22 Panchaud Freres SA v Pagnan and Fratelli [1974] 1 Lloyd’ at p 394. Lord Denning MR (as he then was) said: “[i]n a commercial transaction if the plaintiff has been out of his money for a period, the usual order is that the defendant should pay interest for the time for which the sum has been outstanding. No exception should be made except for a good reason. An arbitrator may decline to award any interest or award interest at a lower rate or for a shorter period but he must have reasonable grounds for doing so and he should set out these reasonable grounds in his award.” (emphasis added) The Malaysian position prior to Far East Holdings case under the Arbitration Act 1952 [28] Returning home, Chandris was adopted by the Malaysian Courts by his Lordship Zakaria Yatim J in Lian Hup Manufacturing Co Sdn Bhd v Unitata Bhd [1994] 2 MLJ 51, Having referred to the above cited passage of Tucker LJ, his Lordship held at p. 54 as follows: "According to Chandris case, the power of an arbitrator to award interest was derived from the submission to him which impliedly gave him power to decide all matters of https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8817070008744431&bct=A&service=citation&risb=21_T23703080801&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251994%25page%2551%25year%251994%25sel2%252%25 23 difference according to existing law of contract, exercising every right and discretionary remedy given to a court of law. The court decided that the arbitrator had the power to award interest. In the present case, the parties have agreed in the arbitration clause in the contract … that the construction, validity and performance be governed by Malaysian law. Under s. 11 of the Civil Law Act 1956, the court has the discretionary power to award interest for the recovery of any debt or damages. See Evergrip Prestressing Sdn Bd v Ken Construction & Trading Sdn Bhd. In my view, the arbitrator in the present case has the same power as that of the court to award interest at such rate as he thinks fit . Since it was within the discretionary power of the arbitrator to award interest in this case, the court would not interfere with the exercise of his discretionary power.” (emphasis added) [29] The decision in Lian Hup Manufacturing was approved by the Court of Appeal in Leong Kum Whay v QBE Insurance (M) Sdn Bhd [2006] 1 MLJ 710. It was held at pp. 724-5: “[32] In the first place it is well settled that an arbitrator, in the absence of a specific clause in the agreement, has power 24 to award interest (see Lian Hup Manufacturing Co Sdn Bhd v Unitata Bhd [1994] 2 MLJ 51; Executive Engineer v DN Senapati AIR 1980 Orissa 74). …” [30] The same conclusion on the power of an Arbitrator to grant pre-award interest was reached by Faiza Tamby Chik J in Raja Lope & Tan Co v Malayan Flour Mills Bhd [2000] 6 MLJ 228, p. 238-239 and Raus Sharif J (as the PCA then was) in Shamelin Holdings Sdn Bhd v Mohd Anhar bin Ahmad (trading as ABA Architect) [2006] 6 MLJ 135, p 140-141 and as stated in the Court of Appeal In Leong Kum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710. [31] Section 21 of the AA 1952 does not appear to be materially different from section 33(6) of the AA 2005. It can be appreciated that the various arguments that may be raised in favour of upholding an award of pre-award interest under the repealed AA 1952 may well be raised in support of the same position and proposition under the AA 2005. The similarity between the AA 1952 under its section 21 and that of s. 36(3) AA 2005 with respect to interest on awards is seen below when placed side by side as follows: Section 21 AA 1952 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.03494380054836699&bct=A&service=citation&risb=21_T23703745129&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251994%25page%2551%25year%251994%25sel2%252%25 25 "Interest on awards A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award at the same rate as a judgment debt." Section 33(6) AA 2005 "Unless otherwise provided in the arbitration agreement, the arbitral tribunal may- (a) award interest on any sum of money ordered to be paid by the award from the date of the award to the date of realisation; and (b) determine the rate of interest." [32] It stands to reason that if an Arbitrator's powers to grant pre- award interest stems from the implied reference to him to decide all issue submitted to him for decision, then it does not quite matter if the relevant statute, whether it be under s. 21 AA 1952 or s. 33(6) AA 2005, does not make reference to pre-award interest. If indeed Parliament had minded to remove the power of an Arbitrator to grant pre-award interest when it made provision for post-award interest under s. 33(6) AA 2005 then by the same token Parliament must have intended the same when it made a similar provision under s. 21 AA 1952. However, as has been shown from a survey 26 of the Malaysian cases, that was not how the Courts have decided so far under the now repealed AA 1952. The arguments upheld by the Court of Appeal in Leong Kum Whay v QBE Insurance (M) Sdn Bhd [2006] 1 MLJ 710 must perforce apply with to the current s. 33(6) AA 2005 seeing that it is substantially the same as the now repealed s. 21 AA 1952. Whether the principle laid down in Far East Holdings case is a mere obiter and can be distinguished [33] Learned counsel for the Plaintiff, Puan Shamsurryaty, submitted that this Court, being a High Court, is bound by the decision of the Court of Appeal in Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang & Another Appeal [2015] 4 MLJ 766 at p 798: “[98] On the issue of interests, we agree with the learned judge that the Arbitrator has erred in law in awarding pre and post award interests. Having considered the Act, we find that under s. 33(6), the Act has made specific provision for post award interest, but does not provide for pre award interest. Clearly the Act does not contemplate the awarding of pre award interest. We agree with the submissions by the learned counsel for FEH and KAOP that when the Act 27 specifically provides for post award interest but is silent on pre award interest, then implicitly the Legislature did not intend to confer on an arbitrator the power to award pre award interest. Therefore we agree with the learned judge that the award of pre award interest ought to be set aside.” (emphasis added) [34] The question referred to the High Court in the Far East Holdings' case (supra) was reproduced by the Court of Appeal as follows in paragraph [22]: "Whether the arbitrator could in law award pre-award interest and post-award interest when the defendant did not specifically plead for the same in the statement of claim and the plaintiffs object to such award?" [35] Granted the question referred to the High Court is slightly different as follows: "Whether the Arbitrator erred in law in deciding that an Arbitrator has jurisdiction in granting 'pre-award interest'?" [36] It can be surmised that if post-award interest had been pleaded, the High Court and the Court of Appeal would have no issue affirming its award as section 33(6) of the Arbitration Act 28 2005 provides for it, unless the arbitration agreement provided otherwise, which was not so contended there. [37] It was submitted strenuously by Mr Ben Chan that when comparing the two cases, Far East Holdings has these two distinguishing features namely: (1) when the Claimant did not specifically plead for interests in the statement of claim, and (2) the Respondent had objected to the award of interests. [38] The lynchpin of his submission was that what was held by the Court of Appeal there in the Far East Holdings' case (supra) was a mere obiter and not the ratio of the case where the power of an Arbitrator to award pre-award interests in concerned. [39] The Court of Appeal had in Far East Holdings' case (supra) set out the argument on interest before the Arbitrator as follows at pp 796-797: "Interests [87] The arbitrator was urged by learned counsel for MUIP to award interests, even though no interest was pleaded, on the ground that MUIP had been deprived of the extra dividends it would have received had it been permitted to exercise both 29 options, and for the loss of dividends suffered by MUIP due to the additional allotment of 22,096,868 shares to FEH. It was also submitted that pre award interest could be awarded under s 74(1) and (2) of the Contracts Act 1950. FEH and KAOP on the other hand had submitted that no interest should be awarded because MUIP had not pleaded for interest and the facts on the claim for interest were not pleaded. It was further submitted that based on s 33(6) of the Act, the arbitrator has no power to award pre award interest. Additionally, FEH and KAOP contended interest is ‘haram’ in ‘hukum syarak’. [89] The arbitrator is of the view that his jurisdiction to award pre award interest is based on the common law position and s 11 of the Civil Law Act 1956 which confers a discretion on the court to award pre judgment interest. Section 11 of the Civil Law Act 1956 states as follows: Power of Courts to award interest on debts and damages. In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which 30 judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section: shall authorise the giving of interest upon interest; shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or shall affect the damages recoverable for the dishonour of a bill of exchange. [90] Having considered the case authorities and the submissions made, the arbitrator awarded MUIP pre award interest at 4% pa. Based on s 33(6) of the Act, the arbitrator awarded post award interest also at 4% pa." [40] With respect to post-award interest, the Court of Appeal affirmed the decision of the High Court in setting aside the post- award interest on ground that it was not pleaded as can be seen below: "[99] With regard to post award interest, it is not disputed that MUIP had not pleaded for such interest either in the 31 statement of claim or in the originating summons filed at the High Court. We are of the view that in the absence of any prayer for interest, which learned counsel for MUIP must be taken to be aware of, the arbitrator ought not to have awarded post award interest. We agree with the submissions by learned counsel for FEH and KAOP that parties must be bound by their pleadings. The learned judge is correct in setting aside the post award interest." [41] I am not unaware of the Federal Court's dicta in Yusof bin Sudin v Suruhanjaya Perkhidmatan Polis [2011] 5 MLJ 465, where, having considered several dictionary meanings on obiter dictum held at p. 502E-F: “[76]… The term obiter dictum in Latin means remarks or comments in passing. These remarks or comments are judicial observation and are not binding. In other words, they are remarks or comments made by judge in a decision that do not form part of the legal reasoning in reaching the decision. …” [42] It was also argued that the Federal Court in Lim Eng Chuan Sdn Bhd v United Malayan Banking Corp [2013] 3 MLJ 161 had refused to followed its earlier decision in Kimlin Housing 32 Development Sdn Bhd (Appointed receiver and manager (in liquidation) v Bank Bumiputra (M) Bhd [1997] 2 MLJ 805 on the ground that the relevant part of the decision in Kimlin was merely obiter dictum. [43] In Kimlin, the question posed concerned the power of sale by a Receiver and Manager ("R&M") appointed under a debenture in respect of a charged land under the National Land Code. However, the (then) Supreme Court went on to hold at p. 823 that: “… no power of sale can be conferred by way of a debenture or power of attorney or otherwise, but proceedings must be brought by the charge to obtain a judicial sale in accordance with the rigid procedure laid down in the Code...” (emphasis added) [44] On the other hand, in Lim Eng Chuan Sdn Bhd, the question posed was the power of sale by an attorney appointed pursuant to a power of attorney (“PA”) clause in the debenture. The Federal Court held at p. 169F-G: “We agree with the majority in the Court of Appeal that the other part of the judgment in Kimlin which referred to ‘power of attorney or otherwise’ and ‘power of attorney’ is at best, only obiter dictum, albeit when the questions posed there 33 concerned only the R&M, since the debenture did not contain a PA clause.” [45] Applying legal principles above, Mr Ben Chan argued that that part of the judgment in Far East Holdings (supra) commenting on s. 33(6) of AA 2015, is at best, only obiter dictum and not binding. The question posed there concerned where the claim for interests was not specifically pleaded and was objected to by the opponent, which is unlike here. [46] However, on the point of pre-award interest, the Court of Appeal did not decide on the point of pleading, or rather the absence of it. Instead, the Court of Appeal dealt with the issue of the jurisdiction of the Arbitrator to grant pre-award interest. In other words, even if there had been pleaded pre-award interest, the Arbitrator could not have granted it. The Court of Appeal was of course, at liberty, to decide the question posed from the underlying perspective of the undergirding power of an Arbitrator to award pre- award interest. The reasoning of the Court of Appeal is as follows at pp 788-789: "[98] On the issue of interests, we agree with the learned judge that the Arbitrator has erred in law in awarding pre and post award interests. Having considered the Act, we find that 34 under s 33(6), the Act has made specific provision for post award interest, but does not provide for pre award interest. Clearly the Act does not contemplate the awarding of pre award interest. We agree with the submissions by learned counsel for FEH and KAOP that when the Act specifically provides for post award interest but is silent on pre award interest, then implicitly the Legislature did not intend to confer on an arbitrator the power to award pre award interest. Therefore we agree with the learned judge that the award of pre award interest ought to be set aside." (emphasis added) [47] However, as the basis for the Court of Appeal holding that the Arbitrator ought not to have awarded pre-award interest stems from a lack of power of the Arbitrator to do so in law, it would be difficult if not impossible to argue that the said decision is a mere obiter dicta. It is very much the ratio of the case where pre-award interest is concerned, being the answer to a specific question raised in a reference under section 42 of the Arbitration Act 2005 which substantially affects the rights of the parties to the Arbitration. [48] If the issue is that of the far greater matter of a lack of power on the part of an Arbitrator to award pre-award interest, then it 35 does not quite matter even if the issue was not submitted upon by the Respondent (the Plaintiff here) in the Arbitration proceedings or that it was not pleaded. In the present case the Claimant had specifically pleaded for both pre-award and post-award interests. [49] Learned counsel for the Claimant was anxious about the fact that if Far East Holdings case (supra) is understood to have laid down the law that an Arbitrator has no power to award pre-award interest, that will put Malaysia out of alignment and inconsistent with the modern general law adopted by other Commonwealth countries on the subject under consideration. He argued with considerable concern that it would definitely not be a good move and would infringe the good judicial policy that there should be uniformity in the common law of the Commonwealth to provide for consistency: United Asian Bank Bhd v. Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182, 193H-I, SC. [50] Recently the Federal Court was asked to restate the law with respect to the standard of proof in civil fraud. The Federal Court spoke of the need to realign our law with that of other Commonwealth countries: His Lordship Richard Malanjum CJSS opined in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 as follows: 36 “[47] In view of the positions of the law in the respective common law jurisdictions as summarised above, we agree with both learned counsel for the parties in this appeal that the position of the law on the standard of proof for fraud in civil claims in this country is far from satisfactory. With respect, there is merit in the submission of learned counsel for the defendant that the adoption of the criminal standard of proof for fraud in civil claims is due to the misinterpretation or even a blind adoption of the judgment of Lord Atkin in Narayanan Chettyar v Official Assignee of the High Court, Rangoon. [48] As such, in our judgment the time has come to realign the position of the law in this country on the standard of proof for fraud in civil claims. While learned counsel for the defendant seemed to favour the adoption of the Singapore position, learned counsel for the plaintiff urged us to adopt the principle in In re B (Children). [49] With respect, we are inclined to agree with learned counsel for the plaintiff that the correct principle to apply is as explained in In re B (Children). It is this: that at law there are only two standards of proof, namely, beyond reasonable doubt for criminal cases while it is on the balance of 37 probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. And ‘(N) either the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts’.” [51] A far more persuasive argument would be that Malaysia would be out of sync with other countries that apply the UNCITRAL Model Law, and more so with respect to International Arbitration. As stated in the Explanatory Note to the Arbitration Bill 2005, one of the avowed aims of the legislation is to encourage international uniformity in the Arbitration regime under the UNCITRAL Model Law dated 21 June 1985. [52] Jurisdictions in England, Australia, India and Singapore allow an Arbitral tribunal to award pre-award interest as they have understood that the Arbitral tribunal derives its powers not from the Arbitration legislation but from the submission to the tribunal which clothed the tribunal with the implied powers to award interest. It follows that if the particular Arbitration statute is not the source of the Arbitral tribunal's power to award interest, then it does not quite matter if the Arbitration statute is silent on pre-award interest for so 38 long as it does not prohibit the award of pre-award interest. The award of pre-award interest would also fall within "usages of the trade applicable to the transaction" as envisages under section 30(5) of the Arbitration Act 2005. It would not be presumptuous to postulate that the attractiveness of having Malaysia as the seat of Arbitration would suffer if there can be no award of pre-award interest in a dispute that comes before it for Arbitration. [53] Mr Ben Chan then made the valiant argument that the decision of the Court of Appeal was made per incuriam. This Court must resist every temptation to go down that road of judicial indiscretion. Based on established principles of stare decisis, it is not for this Court to say that a higher Court has decided a matter per incuriam. Both judicial decorum and discipline would require this Court to follow the ratio laid down by a higher Court as in the Court of Appesl here. I need to go no further than the quote the dicta of his Lordship Edgar Joseph Jr FCJ in Co-operative Central Bank Ltd (In Receivership) v Feyen Development Sdn Bhd [1997] 2 MLJ 829 at pp 835-837 as follows: "In the first place, we should like to deal with a point of wide ranging importance and this concerns the principle of stare 39 decisis, which is a cornerstone of our system of jurisprudence. In Harta Empat, the Court of Appeal in effect held that Feyen was not binding on it because it had overlooked certain provisions of the Code, to wit, ss 241(3) and 301(c). It was on the basis of this that the Court of Appeal relegated Feyen to mere obiter dicta. It is elementary that where, for example, a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court, the decision will have been given per incuriam (see the third exception, per Lord Green MR in Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718). On the other hand, obiter dictum is a mere chance remark by the court and is used in contradistinction to ratio decidendi – the rule of law for which a case is authority. Clearly, the Court of Appeal meant to say that our decision in Feyen was given per incuriam. The question therefore arises: is it open to an intermediate court of appeal, such as the Court of Appeal in this country, to disregard a judgment of a final court of appeal 40 such as the Federal Court on the ground that it was given per incuriam? Our task in answering this question has been made considerably easier by the assistance derived from the remarks of Lord Hailsham in Cassell & Co Ltd v Broome & Anor [1972] AC 1027, which indicated the reaction of the House of Lords to the Court of Appeal's refusal to follow a previous decision of the House on the ground that it had been given per incuriam. Touching on the repercussions of the Court of Appeal advising judges of first instance to ignore decisions of the House of Lords, Lord Hailsham said this (at p 1054B-D): I am driven to the conclusion that when the Court of Appeal described the decision in Rookes v Barnard as decided 'per incuriam' or 'unworkable', they really only meant that they did not agree with it. But, in my view, even if this were not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable. The course taken 41 would have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the Court of Appeal or three members of it (for there is no guarantee that other Lord Justices would have followed them and no particular reason why they should) and the House of Lords. But, much worse than this, litigants would not have known where they stood. None could have reached finality short of the House of Lords and in the meantime, the task of their professional advisers of advising them either as to their rights, or as to the probable cost of obtaining or defending them, would have been, quite literally, impossible. Whatever the merits, chaos would have reigned until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection. And in a famous passage (at p 1054D-E), Lord Hailsham concluded this part of the case by saying: The fact is, and I hope that it will never be necessary to say so again, that in the hierarchical system of courts which exists in this country, it is necessary 42 for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. In our view, every word of what Lord Hailsham said regarding the status of judgments and relevance of precedent in the House of Lords, the circumstances, the duty of the Court of Appeal to accept loyally the decisions of the House of Lords and the chaotic consequences which would follow should the Court of Appeal fail in this duty apply with full force, mutatis mutandis, to this country and we adopt what his Lordship said. Clearly, the Court of Appeal in Harta Empat flew in the face of the principles enunciated by Lord Hailsham and we can only express the hope that it will not be necessary for the Federal Court hereafter to have to remind the Court of Appeal of those principles." (emphasis added) 43 [54] What is spoken of as applying to the Court of Appeal vis-a-vis a Federal Court's decision applies with equal force to the High Court vis-a-vis a Court of Appeal's decision. Whether Parliament is presumed to know the law on pre-award interest in an Arbitration before the enactment of the Arbitration Act 2005 [55] The Defendant submitted that Parliament is presumed to know the law at any time it exercises its legislative authority upon a subject. See Luggage Distributors (M) Sdn Bhd v Tan Hor Teng [1995] 1 MLJ 719, 754, CA. In the present context, the Parliament is presumed to have known the general law relating to the Arbitrator’s power and the jurisdiction to grant pre-award interest when enacting the AA 2005. [56] I agree that it is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion. The Federal Court in Malayan Banking Bhd v Chairman of Sarawak Housing Developers’ Association [2014] 5 MLJ 169 held at p. 178: 44 “[23] If the Act wishes to take away that right, words must be used that point unmistakably to that conclusion (National Assistance Board v Wilkinson [1952] 2 QB 648). Devlin J in clear terms said: It is a well-established principle construction that a statute is not to be taken to effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion … It is another principle of statutory interpretation that the court leans against an interpretation which produces unjust and arbitrary consequences." [57] It is clear that nowhere in s. 33(6) nor in any part of the AA 2005 has Parliament taken away the general law on the Arbitrator’s power and jurisdiction to award pre-award interest. On the contrary, s. 33(6) of the AA 2005 confines itself merely to post- award interest and the Arbitrator’s discretion in determining the rate. By applying the well-established canon of statutory interpretation, when the legislature exercised its legislative authority on the AA 2005, it must have intended not to effect a fundamental alteration of that general law that an Arbitrator has power and jurisdiction to award pre-award interest. 45 [58] Moreover s. 30(1) of the AA 2005 mandated that the Arbitral tribunal “shall decide the dispute in accordance with the substantive law of Malaysia.” Section 11 of the Civil Law Act 1956 is one such substantive law that the Arbitral tribunal must have in mind. Whether the awarding of pre-award interest is an error of law that justify the intervention of this Court [59] It may safely be argued, as the Defendant here did, that when the parties submitted the dispute to the learned Arbitrator for consideration, there was an implied term in the submission that the learned Arbitrator should have the power to award, inter alia, pre- award interest as would be available in a court of law under s. 11 of the Civil Law Act 1956. It is also settled law that when parties entered into a contract they must be deemed to have contracted in the knowledge of general law (Bishop v Bonham [1988] 1 WLR 742, 750H). When the parties entered into the Contract in the present case, they must be deemed to have done so in the knowledge of the general law that the learned Arbitrator has the power to make pre-award interest. The Defendant then concluded that it is highly unconscionable and inequitable for the plaintiff in attempting to alter the score at the end of the game unilaterally. 46 [60] The Defendant further contended that the objection by the Plaintiff on the pre-award interest could have been avoided by the Plaintiff by incorporating a suitable term into the Contract, which it had failed. It could have been done so easily because the Plaintiff was the sole author of the Contract. In effect, what the Plaintiff attempted to do now is to ask the Court to re-write the parties’ contract by incorporating a term which is not in existence. The fundamental principle is that a court cannot re-write the parties’ agreement: Ong Thye Peng v. Loo Choo Teng [2008] 1 CLJ 571, 594D-F, FC. [61] The Defendant had with considerable persuasion, positioned its argument in this fashion: "The matter relating to the claim of interest was expressly referred to the learned Arbitrator for consideration. It is a well-established law that when parties refer a matter expressly to the Arbitrator for consideration and to the extent that he makes an error of law, the parties must take the consequences." [62] As authority for that legal proposition, it is sufficient to quote the following passage from the decision of the Federal Court in The Government of India v. Cairn Energy India Pty Ltd [2011] 6 MLJ 441, 462: 47 “[53] And as Scrutton LJ put it ‘… if you refer a matter expressly to the arbitrator and he makes an error of law you must take the consequences; you have gone to an arbitrator and if the arbitrator whom you choose makes a mistake in law that is your look-out for choosing the wrong arbitrator; if you choose to go to Caesar you must take Caesars’s judgment’ (see African & Eastern (Malaya) Ltd v White, Palmer & Co Ltd (1930) 36 LI L REP 113; cited with approval by the Court of Appeal in Dato’ Teong Teck Kim & Ors v Dato’ Teong Teck Leng [1996] 1 MLJ 178 … (at p 452).” [63] Granted the Court is always guarded to prevent an application filed with ‘reference on question of law’ under s. 42 of AA 2005 from turning into a wholesale ‘appeal’ against the Arbitral tribunal’s decision. More recently, the Court of Appeal Chain Cycle Sdn Bhd v Kerajaan Malaysia [2016] 1 MLJ 681 held at p. 699D-G: “[32] In our considered view such a restriction or limitation as afforded by the Absalom exception, was still necessary and relevant even in a s 42 of the AA scenario as well. This was so in order that the ‘reference on question of law’ under that provision was not turned into a wholesale ‘appeal’ against the https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7610972199160501&bct=A&service=citation&risb=21_T23769944337&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251996%25page%25178%25year%251996%25sel2%251%25 48 arbitral tribunal’s decision or ruling. The court had to guard that the proceedings brought to court related to arbitrations, especially post-award, were not in substance and effect an appeal or a re-hearing, or like here, providing an opportunity for regurgitation of the competing arguments on that specific issue of law that had by agreement of the parties been chosen and referred to the arbitral tribunal for determination conclusively. The fact that the arbitrator took one approach in interpretation over the other could not be a cause for further complaint in a reference proceedings under s 42 of the AA too. To allow the appellant to re-litigate this issue would have the effect of opening the floodgates to allow what was in substance an appeal couched as a question of law.” [64] However, as has been highlighted earlier, the Court of Appeal in Far East Holdings' case (supra) had decided that an Arbitrator lacks the power and so the jurisdiction to grant pre-award interests. It is a pronouncement of the law that goes to the very root and core of the Arbitrator's powers. In as much as the Court of Appeal affirmed the decision of the High Court to intervene and set aside the pre-award interest there, this High Court would so allow it here. 49 [65] It was also ably argued for the Defendant that the issue was raised for the first time by the Plaintiff in this Application. It was submitted that the Plaintiff is not entitled to do so. [66] As noted above, in the statement of defence, the Plaintiff merely made a bare denial on the claim for interests. It is well established that the danger of this kind of general denial defence is that once the Plaintiff takes that course, it must stand or fall on its pleaded defence. It is not permissible for the Plaintiff to proceed to put forward some affirmative case which they have not pleaded or alleged: Regina Fur Co Ltd v Bossom [1958] 2 Lloyd’s Rep 425, 428 per Lord Evershed M.R.; adopted in Cheong Heng Loong Goldsmith (KL) Sdn Bhd v Capital Insurance Bhd [2004] 1 MLJ 353, 365[19], CA. [67] Lord Brightman in delivering the decision of the Privy Council case in AR. PL. Palaniappa Chettiar v Lakshamanan Chettiar [1983] 2 MLJ 177 held at p.180: “The submissions were exchanged before being delivered to the trial judge. If a submission referred to a matter of record which the other party asserted he was entitled to exclude from the judge’s consideration, the time to take that objection and to seek a ruling upon it was when the submissions been 50 delivered. If a party considered that a matter of record, such as the findings in the Indian Action, was inadequately or inaccurately set out, the objection should have been taken before the judge was asked to consider the case and adjudicate upon it, and not after he had reached his decision.” (emphasis added) [68] In the English Court of Appeal in Fidelitas Shipping Co., Ltd v V/O Exportchleb [1965] 2 All ER 4, Lord Denning M.R. held at p. 9: “… And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings.” (emphasis added) [69] Diplock LJ, in the same case, held at p. 10: 51 “Issue estoppel applies to arbitration as it does to litigation. The parties having chosen the tribunal to determine the disputes between them as to their legal rights and duties are bound by the determination by that tribunal of any issue which is relevant to the decision of any dispute referred to that tribunal.” [70] All the above submissions of the Defendant would have been spot on had it not been for the fact that the reference of a question of law here deals with something more fundamental. It is this: the lack of power and jurisdiction of the Arbitrator to grant pre-award interest. Pronouncement [71] My hands are tied though I can appreciate the cogency of the legal arguments in favour of an Arbitrator granting pre-award interests. Another panel of the Court of Appeal will have the opportunity to hear the arguments again or perhaps the Federal Court might be hearing the appeal sooner from the decision of Far East Holdings (supra), as a question of law that was allowed during the leave application granted by the Federal Court on 28 March 2016 was as follows: "Whether under or in proceedings under the Arbitration Act 2005, the Arbitrator has jurisdiction to award pre-award interest?" 52 [72] In the circumstance I was constrained to set aside only the award of pre-award interest of RM305,307.85. Each party shall bear its own costs. Dated: 30 May 2016. Y.A. TUAN LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : Shamsurryaty Shamsuddin (Senior Federal Counsel – AG’s Chambers) For the Defendant : Ben Chan together with Chin Yu Yen (Messrs Mah-Kamariyah & Philip Koh) Date of Decision : 15 April 2016

Tika 2.6.0

24C(ARB)-44-12/2015

PLAINTIF Kerajaan Malaysia (Kementerian Sumber Asli dan Alam Sekitar) DEFENDAN Kumpulan Sakata Sdn Bhd

09/05/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2392e2d5-6321-465e-81e2-e2cbf5c9057d&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: 24C(ARB)-44-12/2015 In the matter of an Arbitration Between Kumpulan Sakata Sdn Bhd and Kerajaan Malaysia (Kementerian Sumber Asli dan Alam Sekitar) And In the matter of an Arbitration before Mr. Tee Geok Hock And In the matter of an Award dated 23 October 2015 (referred as Final Award) And In the matter of Section 42 Arbitration Act 2005 And In the matter of Order 69 Rule 6 Rules of Court 2012 BETWEEN KERAJAAN MALAYSIA (KEMENTERIAN SUMBER ASLI DAN ALAM SEKITAR) … PLAINTIFF 2 AND KUMPULAN SAKATA SDN BHD … DEFENDANT THE JUDGMENT OF YA TUAN LEE SWEE SENG [1] The Plaintiff had applied by this Originating Summons to this Court under section 42 Arbitration Act 2005 for determination of a few questions of law arising out of a Final Award of an Arbitrator. The final Award was the outcome from a reference to Arbitration by the parties of the differences and disputes arising out of a contract dated 16 February 2007. The Plaintiff here is the Respondent in the Arbitration and the Defendant here is the Claimant. The project which was the subject matter of the contract was with respect to the Defendant undertaking the design, construction and completion of the river upgrading works in relation to the Kerayong River for a length of 1.8 km from the mouth of the said River to the point of discharge of the SMART Project System, Federal Territory, Kuala Lumpur. 3 Prayer [2] Four questions of law were referred to this Court and for the purpose of the appeal filed by the Defendant herein, only the fourth question would be relevant. That question of law posed is whether the Arbitrator has jurisdiction in law to allow interest on the amount awarded as given in paragraphs 15.5 and 17.1(1) of the Final Award, which is from date of commencement of the Arbitration and clarified on oral submission as "pre- award interest". Principle [3] Section 33(6) of the Arbitration Act 2005 states as follows: "Unless otherwise provided in the arbitration agreement, the arbitral tribunal may- (a) award interest on any sum of money ordered to be paid by the award from the date of the award to the date of realisation; and (b) determine the rate of interest." 4 [4] In the Final Award, the Arbitrator had, in paragraph 15.5, awarded to the Defendant a simple interest of 8% per annum for the awarded amounts in Arbitration. This simple interest shall be computed as from 16 May 2012 (the date of commencement of Arbitration) until the date of full realization. The same wording appeared at paragraph 17.1(1) of the Final Award. [5] As stated by the learned Arbitrator at paragraph 15.5 of the Award, the Claimant in its Amended Statement of Claim had prayed for interest on its claims at 8% per annum. The learned Arbitrator proceeded to support his award of interest of 8% per annum as follows: "15.3 In this arbitration, the Claimant has produced its Audited Accounts for financial years 2006 to 2008 [B16/5111-5211]. The Audited Accounts show that the Claimant had overdraft facilities and incurred interest on overdraft amounts at interest rate of 1.5% to 2% above Base Lending Rate of Affin Bank Berhad. The bank statements in Bundle B16 also show that in years 2008, 2009 and 2010 there were substantial periods of time when the Claimant utilized overdraft of millions of ringgit and incurred bank interests on the overdraft amounts: see, for example, 2008 overdrafts exceeding RM5 million [B 16/5363, 5367, 5371- 5373; and 2010 overdrafts of about RM10 5 million [B 16/5375- 5378]. It is a notorious fact that banks charge interest on monthly rests. 15.4 In the circumstances, I find that an interest rate of 8% per annum would be fair and appropriate by compensating the Claimant for the loss of use of money represented by the awarded amounts for this Project. This interest rate of 8% per annum should be on simple interest basis. 15.5 In the premises, I award simple interest of 8% per annum for the awarded amounts in this arbitration. The interest shall be computed as from 16 May 2012 (the date of commencement of this arbitration) until the date of full realization." [6] Learned counsel for the Defendant submitted that the question of law posed does not substantially affect the rights of the parties as the rights of the parties in respect of other parts of the Final Award are not affected. Thus it was argued that it cannot be said that an answer to this question would substantially affect the rights of the parties. [7] With respect I do not agree. Had the Arbitrator not granted interest in favour of the Defendant, I am quite certain the Defendant would be 6 referring a question of law to the Court under section 42 of the Arbitration Act 2005. It is clearly a question that substantially affects the rights of the parties not just in terms of quantum, but also with respect to the very jurisdiction of the Arbitrator in awarding interests, whether it be pre-award interest or post-award interest or both. [8] Learned counsel for the Plaintiff submitted that this Court, being a High Court, is bound by the decision of the Court of Appeal in Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang & Another Appeal [2015] 4 MLJ 766 at p 798: “[98] On the issue of interests, we agree with the learned judge that the Arbitrator has erred in law in awarding pre and post award interests. Having considered the Act, we find that under s. 33(6), the Act has made specific provision for post award interest, but does not provide for pre award interest. Clearly the Act does not contemplate the awarding of pre award interest. We agree with the submissions by the learned counsel for FEH and KAOP that when the Act specifically provides for post award interest but is silent on pre award interest, then implicitly the Legislature did not intend to confer on an arbitrator the power to award pre 7 award interest. Therefore we agree with the learned judge that the award of pre award interest ought to be set aside.” (emphasis added) [9] The question referred to the High Court in the Far East Holdings' case was reproduced by the Court of Appeal as follows in paragraph [22]: "Whether the arbitrator could in law award pre-award interest and post-award interest when the defendant did not specifically plead for the same in the statement of claim and the plaintiffs object to such award?" [10] The Court of Appeal had set out the argument on interest before the Arbitrator as follows at pp 796-797: "Interests [87] The arbitrator was urged by learned counsel for MUIP to award interests, even though no interest was pleaded, on the ground that MUIP had been deprived of the extra dividends it would have received had it been permitted to exercise both options, and for the loss of dividends suffered by MUIP due to the additional allotment of 22,096,868 shares to FEH. It was also submitted that pre award 8 interest could be awarded under s 74(1) and (2) of the Contracts Act 1950. FEH and KAOP on the other hand had submitted that no interest should be awarded because MUIP had not pleaded for interest and the facts on the claim for interest were not pleaded. It was further submitted that based on s 33(6) of the Act, the arbitrator has no power to award pre award interest. Additionally, FEH and KAOP contended interest is ‘haram’ in ‘hukum syarak’. [89] The arbitrator is of the view that his jurisdiction to award pre award interest is based on the common law position and s 11 of the Civil Law Act 1956 which confers a discretion on the court to award pre judgment interest. Section 11 of the Civil Law Act 1956 states as follows: Power of Courts to award interest on debts and damages. In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the 9 date when the cause of action arose and the date of the judgment: Provided that nothing in this section: shall authorise the giving of interest upon interest; shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or shall affect the damages recoverable for the dishonour of a bill of exchange. [90] Having considered the case authorities and the submissions made, the arbitrator awarded MUIP pre award interest at 4% pa. Based on s 33(6) of the Act, the arbitrator awarded post award interest also at 4% pa." [11] With respect to post award interest, the Court of Appeal affirmed the decision of the High Court in setting aside the post-award interest on ground that it was not pleaded as can be seen below: "[99] With regard to post award interest, it is not disputed that MUIP had not pleaded for such interest either in the statement of claim or in 10 the originating summons filed at the High Court. We are of the view that in the absence of any prayer for interest, which learned counsel for MUIP must be taken to be aware of, the arbitrator ought not to have awarded post award interest. We agree with the submissions by learned counsel for FEH and KAOP that parties must be bound by their pleadings. The learned judge is correct in setting aside the post award interest." [12] Clearly if post-award interest had been pleaded, the High Court and the Court of Appeal would have no issue affirming its award as section 33(6) of the Arbitration Act 2005 provides for it, unless the arbitration agreement provided otherwise, which was not so contended there. [13] However, on the point of pre-award interest, the Court of Appeal did not decide on the point of pleading, or rather the absence of it. Instead, the Court of Appeal dealt with the issue of the jurisdiction of the Arbitrator to grant pre-award interest. In other words, even if there had been pleaded pre-award interest, the Arbitrator could not have granted it. The reasoning of the Court of Appeal is as follows at pp 788-789: "[98] On the issue of interests, we agree with the learned judge that the Arbitrator has erred in law in awarding pre and post award 11 interests. Having considered the Act, we find that under s 33(6), the Act has made specific provision for post award interest, but does not provide for pre award interest. Clearly the Act does not contemplate the awarding of pre award interest. We agree with the submissions by learned counsel for FEH and KAOP that when the Act specifically provides for post award interest but is silent on pre award interest, then implicitly the Legislature did not intend to confer on an arbitrator the power to award pre award interest. Therefore we agree with the learned judge that the award of pre award interest ought to be set aside." (emphasis added) [14] As the basis for the Court of Appeal holding that the Arbitrator ought not to have awarded pre-award interest stems from a lack of power of the Arbitrator to do so in law, it could hardly be said that the said decision is a mere obiter dicta. It is very much the ratio of the case where pre-award interest is concerned, being the answer to a specific question raised in a reference under section 42 of the Arbitration Act 2005 which substantially affects the rights of the parties to the Arbitration. [15] This Court can appreciate the various arguments that may be raised in favour of upholding an award of pre-award interest. It may be argued that 12 the repealed Arbitration Act 1952 under its section 21 had a substantially similar clause on interesting awards as follows: "Interest on awards A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award at the same rate as a judgment debt." [16] Whilst nothing is said with respect to pre-award interest under the repealed Arbitration Act 1952, Courts have consistently held that pre interest may be awarded and resort was made to section 11 of the Civil Law Act 1956 where the power of an arbitral tribunal to award pre-award interest is concerned. It must not be overlooked that under section 30(1) and (5) of the Arbitration Act 2005, an arbitral tribunal shall decide the dispute in accordance with the substantive law of Malaysia and shall take into account the usages of the trade applicable to the transaction: "30 Law Applicable to Substance of Dispute (1) Unless otherwise agreed by the parties, in respect of a domestic arbitration where the seat of arbitration is in Malaysia, the arbitral 13 tribunal shall decide the dispute in accordance with the substantive law of Malaysia. ... (5) The arbitral tribunal shall, in all cases, decide in accordance with the terms of the agreement and shall take into account the usages of the trade applicable to the transaction." (emphasis added) [17] It cannot be gainsaid that our Courts have consistently held under the repealed Arbitration Act 1952 that section 11 of the Civil Law Act 1956 empowers an arbitral tribunal to grant pre-award interest, being the governing substantive law where Arbitration is concerned. The Court of Appeal in Leong Kum Whay v QBE Insurance (M) Sdn Bhd [2006] 1 CLJ 1 confirmed that an Arbitrator has the power to award pre-award interest: “[32] In the first place it is well settled that an arbitrator, in the absence of a specific clause in the agreement, has power to award interest (see Lian Hup Manufacturing Co Sdn Bhd v Unitata Bhd [1994] 2 MLJ 51; Executive Engineer v DN Senapati AIR 1980 Orissa 74)..." 14 [18] It may also be argued that just as under the repealed Arbitration Act 1952, the present Arbitration Act 2005 does not prohibit the award of pre- award interest. Hence in the absence of any specific prohibition under the Act and the contract, an arbitral tribunal, deriving its powers from the contractual submission to it, must necessarily have the implied power to award interest. The arbitral tribunal derives its power to adjudicate a dispute not from the Arbitration Act 2005 but from the arbitration agreement of the parties. [19] Such is the position in England in the English Court of Appeal in Chandris v Isbrandtsen-Moller Co Inc [1950] 2 All ER 618 where one of the questions before the Court of Appeal was whether or not interest could be awarded by an Arbitrator on the amount awarded for demurrage. The English Court of Appeal underscored the fact that an Arbitrator's power to award interest was derived from the submission to him which clothed him with the power to decide "all matters in difference" according to the existing law of contract, exercising every right and discretionary remedy given to a court of law: i.e. s 3 of the Law Reform (Miscellaneous Provisions) Act 1934 (our s 11 of the Civil Law Act 1956). Indeed there is a sense of déjà vu as one considers the arguments raised by learned counsel there. His 15 Lordship Tucker LJ in the English Court of Appeal case held at pp 621- 623 as follows: "The argument for the claimant is that just as in 1851 the arbitrator derived his power to give interest directly, not from the Act of 1833, but from a submission to him of all matters in dispute, so, now, in 1950, the arbitrator does not derive his jurisdiction to give interest from the Act of 1934, but from the submission to him of the disputes, which involves that he has to deal with those disputes according to the law of the land and that he is clothed with authority to give to the claimant such rights and remedies as would have been available to him in a court of law having jurisdiction to deal with the same subject- matter. Counsel submits that, applying the reasoning of Sir John Jervis CJ in Edwards v Great Western Ry Co to the statute of 1934, in which we find a court of record substituted for a jury, the same result should follow, viz that, by reason of the submission, the arbitrator has been clothed with authority to deal with this matter in the same way as that in which it could have been dealt with by a court of record. The argument for the charterers is that one must now look only at s 3(1) of the Act of 1934 to determine what the powers of the arbitrator are, and that that sub-section in terms merely gives a 16 discretionary power to courts of record with regard to any proceedings tried in such a court. The Act of 1934, it is urged, is silent regarding arbitrations, and, therefore, it must be taken to have been intended that its provisions should not apply to arbitrations. Counsel drew our attention to the fact that in the Arbitration Act, 1934, which had been passed two months earlier, there was a special provision under s 11 providing for interest to be allowed on awards. That section provides: “A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt.” Counsel further points out that the Arbitration Act, 1934, makes no provision for the awarding of interest by the arbitrator as distinct from the interest given under s 11, which only runs from the date of the award. Furthermore, says counsel, the policy of the legislature in this matter can be ascertained by seeing what has been done in subsequent Acts, and he quotes the Evidence Act, 1938, the Limitation Act, 1939, the Law Reform (Frustrated Contracts) Act, 1943, and the Law Reform (Contributory Negligence) Act, 1945, in all 17 of which special provision has been made in terms, including the case of arbitrations, and, says counsel, that shows that the legislature, when it intends to give powers to an arbitrator, does so in terms. With regard to that argument, I do not think it is strictly permissible to interpret a statute by reference to what has been done in subsequent statutes, but, however that may be, I think the history of this matter shows that up till 1938, or thereabouts, there had been a considerable difference of judicial opinion as to the power of an arbitrator in the absence of express provision to deal with certain defences which are expressly available as answers to actions, and the position with regard to those matters was dealt with by the House of Lords in Naamlooze Vennootschap Handels-en-Transport Maatschappij “Vulcaan” v A/S J Ludwig Mowinckels Rederi. There, Lord Maugham LC said ([1938] 2 All ER 155): “The matter does not rest there, because we have to consider how far the suggested elimination of defences available at law or in equity must logically be held to extend in other arbitrations. If the party defending may not rely on the Statute of Limitations, 18 can he rely on the Statute of Frauds, or the Act partially replacing it? Could he rely in a commercial arbitration on the Gaming Act? A number of like questions might be asked. It is true, and this is the main point on which the appellants rely, that the Limitation Act, 1623, s. 3, was in terms limited to actions. It may be noted that no such statute passed before the Real Property Limitation Act, 1833, expressly bound courts of equity. There is, however, no doubt that long before the Judicature Act, 1873, where a court of equity had to adjudicate on the validity of a debt in a suit to administer an estate, or in any like suit, it held itself bound to apply the statutes of limitations in precisely the same way as if there were an action at law to recover the debt … It is indisputable that, in modern arbitration, the principles of equity must be applied just as they would now be applied in a court of law, since upon a Special Case for the opinion of the court under s. 7 of the Arbitration Act or the Judicature Act, 1925, s. 94 (replacing s. 19 of the Arbitration Act), the court is, and has long been, bound to apply equitable rules and relief. It is difficult to see how the equitable view of the applicability of the Limitation Act, 1623, to a case of debt can be 19 excluded in a legal arbitration … The authorities on the question as to whether the statutes of limitation are available in an arbitration have been carefully considered by my noble and learned friend LORD WRIGHT, presiding in the Court of Appeal, and it is not necessary to repeat them. The hesitation or the doubts expressed by SCRUTTON, L.J., in Board of Trade v. Cayzer, Irvine & Co. appear to be mainly directed against the laying down of an absolute and general rule applicable in all kinds of arbitration. At least, that is how I understand them, and, if I may say so with all respect, to that extent I agree with them. The remarks of VISCOUNT CAVE, L.C., in the same case, when the matter came before this House, certainly tend to show that, in his view, in commercial arbitrations an arbitrator is bound to give effect to all legal defences, including a defence under any statute of limitation. On a careful consideration of all the cases, I am content to say that I agree with what was said by LORD SALVESEN, delivering the judgment of the Board in Ramdutt Ramkissendass v. E. D. Sassoon & Co... In that case the Indian Limitation Act 1908 (the relevant period being three years), was 20 taken for practical purposes to be the same as the Limitation Act, 1623, and LORD SALVESEN observed: 'Although the Limitation Act does not in terms apply to arbitrations, they [their Lordships of the Judicial Committee] think that in mercantile references of the kind in question it is an implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every defence which would have been open in a court of law can be equally proponed for the arbitrator's decision unless the parties have agreed - which is not suggested here - to exclude that defence. Were it otherwise, a claim for breach of a contract containing a reference clause could be brought at any time, it might be twenty or thirty years after the cause of action had arisen … '” Counsel for the charterers says that a distinction is to be drawn between statutes which bar a remedy, such as the statutes of limitation, the Statute of Frauds, 1977, the Sale of Goods Act, 1893, and so forth, to all of which statutes an arbitrator is bound to give effect notwithstanding they afford defences to actions, and statutes which confer rights, and that in the latter cases the right so conferred is not to be extended beyond the plain words of the enacting statute. 21 I cannot see why any distinction should be drawn between the duty of an arbitrator to give effect to such statutes as the Statute of Limitations and his jurisdiction in his discretion to award of interest is only a part of the damages recoverable, and, adapting to the facts of this case the language of Lord Salvesen in the case to which I have just referred—language which was approved by Lord Maugham—it would read as follows: “Although the Law Reform (Miscellaneous Provisions) Act, 1934, does not in terms apply to arbitrations, I think that in mercantile references of the kind in question it is an implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every right and discretionary remedy given to a court of law can be exercised by him.” To that there are certain well-known exceptions, such as the right to grant an injunction, which stand on a different footing. One of the reasons why an arbitrator cannot give an injunction is that he has no power to enforce it, but such an objection does not apply to an award of interest. This matter was dealt with fully by Lord Goddard CJ in delivering judgment of the court in the Podar case. He dealt with the power to 22 give interest at common law and under the Civil Procedure Act, 1833, and he then proceeded to say ([1949] 2 All ER 67): “The case which would seem to be directly in point is Edwards v. Great Western Ry. Co... In that case the court approved of the allowance of interest by an arbitrator because it was allowable in the circumstances of that case by the provisions of the Civil Procedure Act, 1833. Accordingly, we think we must take it to be the law that before the Law Reform (Miscellaneous Provisions) Act, 1934, an arbitrator had the same powers as the court with regard to the award of interest, but no greater power.” The Lord Chief Justice then goes on to deal with the Law Reform (Miscellaneous Provisions) Act, 1934, and he says (ibid): “Moreover, as s. 28 and s. 29 of the Civil Procedure Act are repealed, we feel driven to hold that not only have arbitrators no power to give interest on damages, but they have been deprived of the powers which they had so long as the sections of the Civil Procedure Act were in force and can now only give it in circumstances in which it was recoverable at common law.” 23 Counsel for the charterers argued that that judgment was based on the assumption that it was the Civil Procedure Act, 1833, which gave the arbitrator his power to award interest, and that, once that Act was repealed, all such powers had gone, and, unless the arbitrator had been given fresh powers, he had none. I think, however, that the real basis of Edwards v Great Western Ry Co was that the arbitrator derived his powers, not from the Act of 1833, but from the submission to him which necessarily gave him the “implied powers” referred to in the language of Lord Salvesen which I have just quoted, and I see no reason why, since the Act of 1934, an arbitrator should not be deemed impliedly to have the same powers. Therefore, with diffidence, having regard to the view expressed by the Divisional Court on this matter, I have come to the conclusion that in such a case as the present the arbitrator has power to award interest, and, accordingly, to that extent, I think this appeal should succeed and the Podar case (Podar Trading Co Ltd, Bombay v Fracois Tagher, Barcelona [1942] 2 All ER 62) be overruled." (emphasis added) 24 [20] The Chandris reasoning was applied in the Malaysian context in Lian Hup Manufacturing Co Sdn Bhd v Unitata Bhd [1994] 2 MLJ 51, at page 54, where it was held: “According to Chandris case, the power of an arbitrator to award interest was derived from the submission to him which impliedly gave him power to decide all matters of difference according to existing law of contract, exercising every right and discretionary remedy given to a court of law. The court decided that the arbitrator had the power to award interest. In the present case, the parties have agreed in the arbitration clause in the contract … that the construction, validity and performance be governed by Malaysian law. Under s. 11 of the Civil Law Act 1956, the court has the discretionary power to award interest for the recovery of any debt or damages. See Evergrip Prestressing Sdn Bd v Ken Construction & Trading Sdn Bhd. In my view, the arbitrator in the present case has the same power as that of the court to award interest at such rate as he thinks fit. Since it was within the discretionary power of the arbitrator to award interest in this 25 case, the court would not interfere with the exercise of his discretionary power.” (emphasis added) [21] The same conclusion on the power of an Arbitrator to grant pre-award interest was reached by Faiza Tamby Chik J in Raja Lope & Tan Co v Malayan Flour Mills Bhd [2000] 6 MLJ 228, p. 238-239 and Raus Sharif J (as the PCA then was) in Shamelin Holdings Sdn Bhd v Mohd Anhar bin Ahmad (trading as ABA Architect) [2006] 6 MLJ 135, p 140-141 and as stated in the Court of Appeal In Leong Kum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710. [22] The position in Singapore is exemplified by the case of Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [1995] 1 SLR 548 (p. 556 to 557), where Lai Kew Chai J. held as follows: “With regard to the specific exercise of awarding interest in arbitration, it is the law that generally interest should be awarded on a successful claim. An arbitrator who awards a sum of money but fails to award interest to compensate the successful claimant accordingly has prima facie misconducted himself in the technical sense of the word: Panchaud Freres SA v Pagnan and 26 Fratelli [1974] 1 Lloyd’ at p 394. Lord Denning MR (as he then was) said: “[i]n a commercial transaction if the plaintiff has been out of his money for a period, the usual order is that the defendant should pay interest for the time for which the sum has been outstanding. No exception should be made except for a good reason. An arbitrator may decline to award any interest or award interest at a lower rate or for a shorter period but he must have reasonable grounds for doing so and he should set out these reasonable grounds in his award.” (emphasis added) [23] In the event that an Arbitration under the Arbitration Act 2005 is such that the arbitral tribunal does not have the power to award pre-award interest, Malaysia would be out of sync with other countries that apply the UNCITRAL Model Law, and more so with respect to International Arbitration. As stated in the Explanatory Note to the Arbitration Bill 2005, one of the avowed aims of the legislation is to encourage international uniformity in the Arbitration regime under the UNCITRAL Model Law dated 21 June 1985. [24] Jurisdictions in England, Australia, India and Singapore allow an arbitral tribunal to award pre-award interest as they have understood that 27 the arbitral tribunal derives its powers not from the Arbitration legislation but from the submission to the tribunal which clothed the tribunal with the implied powers to award interest. It follows that if the particular Arbitration statute is not the source of the Arbitral tribunal's power to award interest, then it does not quite matter if the Arbitration statute is silent on pre-award interest for so long as it does not prohibit the award of pre-award interest. The award of pre-award interest would also fall within "usages of the trade applicable to the transaction" as envisages under section 30(5) of the Arbitration Act 2005. The attractiveness of having Malaysia as the seat of Arbitration would also be adversely affected if there can be no award of pre-award interest in a dispute that comes before it for Arbitration. [25] It may also be argued that Parliament is presumed to know the law at any time it exercises its legislative authority upon a subject as was highlighted by the Court of Appeal in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng [1995] 1 MLJ 719 at 754. It is a very persuasive argument that Parliament is presumed to have known the law relating to an arbitral tribunal's power and its jurisdiction to grant pre-award interest when enacting the Arbitration Act 2005. As a corollary, a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion. Such was the principle 28 laid down by the Federal Court in Malayan Banking Bhd v Chairman of Sarawak Hisuing Developers' Association [2014] 5 MLJ 169 at p 178: "[23] If the Act wishes to take away that right, words must be used that point unmistakably to that conclusion (National Assistance Board v Wilkinson [1952] 2 QB 648). Devlin J in clear terms said: It is a well-established principle of construction that a statute is not to be taken to effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion...it is another principle of statutory interpretation that the court leans against an interpretation which produces unjust and arbitrary consequences." (emphasis added) [26] S. 33(6) of the Arbitration Act 2005 merely spells out the arbitral tribunal's power to grant post-award interest and its discretion in determining the rate. It says nothing on pre-award interest and it must have intended not to effect any fundamental alteration of that general law that an Arbitrator has power and jurisdiction to award pre-award interest. Indeed it can be said that s. 33(6) merely seeks to make it clear that an award may include post-award interest unless the Arbitration agreement otherwise 29 provides, unlike the previous position under s. 21 of the Arbitration Act 1952 where it is a case where unless the award otherwise directs, interest shall run from the date of the award at the same rate as a judgment debt. It appears that there is then no justification for concluding that the converse is true in that pre-award interest is prohibited merely because section 33(6) of the Arbitration Act 2005 is silent on it when it speaks clearly of when post award interest may be made. [27] However for the time being, the position of the law on pre-award interest is as declared by the Court of Appeal in the Far East Holdings' (supra) case. Irrespective of my personal predilection and preference, the position of the law on pre-award interest as may be awarded by an Arbitrator is as propounded authoritatively by the Court of Appeal in the Far East Holdings' case (supra). To put it pointedly and plainly, an Arbitrator has no jurisdiction to award pre-award interest but only post-award interest if provided for in the arbitration agreement. [28] The law will have the opportunity to develop as the cases from which the principle is derived, go through to the apex Court. In the meanwhile, the doctrine of stare decisis or binding precedent, applies to the High Court. 30 [29] Both judicial deference and discipline would demand of a High Court to follow the decision of a Court of Appeal on a point of law already decided. Whilst one may be at liberty to state the persuasive arguments to the contrary, one is not at liberty to disregard an authoritative pronouncement of the law of a court higher up in hierarchy. The following reminder of the Federal Court in Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 would resonate with all who respect the rules of binding precedent: "[45] ... In order to appreciate the importance of adhering to the doctrine of stare decisis useful references may be made to Cassell & Co Ltd v Broome & Anor [1972] 1 All ER 801 where Lord Hailsham said at p 809: The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 offers guidance 31 to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously. That this is so is apparent from the terms of the declaration of 1966 itself where Lord Gardiner LC said: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules." [30] Ever so often, an admonishment along the lines spelt out in Periasamy s/o Sinnappen v Public Prosecutor [1996] 2 MLJ 557 at p 582 has been repeated to rein in respect for the authority of a higher court: "Lastly, the learned appellate judge did not sufficiently address his mind to the decision in Khoo Hi Chiang. We find the cavalier fashion in which he approached the judgment of a five-member bench of the 32 Supreme Court in a case which was an authority binding upon him to be quite appalling. We are convinced that the learned appellate judge ought not to have brushed it aside as he did. We may add that it does not augur well for judicial discipline when a High Court judge treats the decision of the Supreme Court with little or no respect in disobedience to the well-entrenched doctrine of stare decisis. We trust that the occasion will never arise again when we have to remind High Court judges that they are bound by all judgments of this court and of the Federal Court and they must, despite any misgivings a judge may entertain as to the correctness of a particular judgment of either court, apply the law as stated therein." (emphasis added) Pronouncement [31] For the reasons given above, this Court was constrained to vary the Award by setting aside the pre-award interest only pursuant to an application under section 42 of the Arbitration Act 2005 such that interest awarded should run at the rate of 8% per annum from the date of Award 33 i.e. 28 October 2015 to date of realization instead of from 16 May 2012. The rest of the Award is upheld and remains intact. Each party shall bear its own costs. Dated: 9 May 2016. - signed - Y.A. TUAN LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : Neorazlim binti Saidil (Senior Federal Counsel – AG’s Chambers) For the Defendant : Felix Dorairaj (Messrs Dorairaj, Low & Teh) Date of Decision : 14 Mac 2016

Tika 2.6.0

WA-24C(ARB)-1-01/2016

PLAINTIF Usahasama SPNB-LTAT Sdn Bhd DEFENDAN Abi Construction Sdn Bhd

29/04/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2f221441-892a-4b7a-a622-1b0fd323d5eb&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C(ARB)-1-01/2016 In the Matter of an arbitration between ABI Construction Sdn Bhd and Usahasama SPNB-LTAT Sdn Bhd . And In the Matter of an appeal under Sections 18(8) and 50 of the Arbitration Act, 2005 And In the Matter of Order 69 Rule 4 and Order 92 Rule 4 of the Rules of Court 2012 BETWEEN USAHASAMA SPNB-LTAT SDN BHD ... PLAINTIFF AND ABI CONSTRUCTION SDN BHD ... DEFENDANT 2 THE JUDGMENT OF YA TUAN LEE SWEE SENG [1] The Plaintiff, as Employer, had entered into a PWD 203 Contract with the Defendant, as Contractor. Under the Contract dated 17 February 2006, the Defendant agreed to perform certain works, more particularly described as “Cadangan Pembangunan Keperluan Perumahan Anggota Tentera dan Kakitangan Awam, Kem Sungai Besi, Kuala Lumpur-Kerja Bangunan di Zon C” (the Works), for the Plaintiff, subject to the terms and conditions therein. A dispute arose between the parties. The Plaintiff terminated the Contract by its letter dated 19 February 2008. The Defendant as Claimant proceeded to arbitration by issuing a Notice of Arbitration dated 12 February 2014 to the Plaintiff. The Arbitrator appointed, Mr Bhag Singh, proceeded to fix a date for the preliminary meeting on 19 May 2015. Problem [2] Before the preliminary meeting, the Plaintiff wrote to the Arbitrator, which letter was copied to the Defendant's solicitors, to state that in accordance with clause 54 of the Contract, the Defendant would first have to refer the dispute or differences to the officer named in the Appendix, the Managing Director of the Plaintiff, for a decision before the 3 dispute is referred to arbitration. As such, the Notice of Arbitration dated 12 February 2014 is premature and accordingly the Arbitrator has no jurisdiction to decide the dispute between the parties. [3] The solicitors for the Plaintiff also notified the Arbitrator that they will be making an application under section 18 of the Arbitration Act 2005 and proposed to take directions in this regard at the preliminary meeting. [4] On 24 September 2015, a hearing was held by the Arbitrator in respect of the Plaintiff’s Application. By a decision dated 7 December 2015, the Arbitrator held that he did have the jurisdiction to decide the dispute between the parties and he dismissed the Plaintiff’s Application. Prayer [5] The Plaintiff being dissatisfied with the decision of the said Arbitrator, appealed to this Court under s 18(8) of the Arbitration Act 2005. [6] The Plaintiff contended that the Defendant would first have to refer the dispute or differences to the Superintending Officer ("S.O.") who is the Managing Director of the Plaintiff for a decision before the dispute is referred to arbitration in accordance with clause 54 of the Contract. It 4 argued that no dispute or differences were ever referred to the Managing Director of the Plaintiff or his predecessor as required under clause 54. It was submitted by the Plaintiff that the condition found in clause 54(a) and (b) are mandatory, in the form of a precondition or a condition precedent, which must be fulfilled before the Arbitrator has jurisdiction to hear the dispute between the parties. [7] The Defendant, on the other hand, contended that the various letters between the parties, both before and after the Notice of Arbitration, are sufficient compliance in substance, directly or indirectly, with the requirement of clause 54 of the Contract. In any event the Plaintiff had waived the requirement and is estopped from objecting on that ground, as it had not raised it at the earliest opportunity when it received the Notice of Arbitration on 13 February 2014 and had a few rounds of without prejudice negotiations with the Defendant even after the preliminary meeting before an earlier Arbitrator appointed before the current Arbitrator Mr Bhag Singh. Principles [8] Clause 54 of the Contract reads: “54. Arbitration Reference to S.O. for a decision. 5 (a) If any dispute shall arise between the Government and the Contractor, either during the progress or after completion of the Works, or after the determination of the Contractor’s employment, or breach of this Contract, as to: (i) The construction of this Contract, or (ii) Any matter or thing of whatsoever nature arising under this Contract, or (iii) The withholding by the S.O. of any certificate to which the Contractor may claim to be entitled, then such dispute or difference shall be referred to the S.O. S.O.’s decision to be binding until completion of Works. (b) The S.O.’s decision which is to be in writing shall subject to sub-clause (e) hereof be binding on the parties until the completion of the Works and shall forthwith be given effect to by the Contractor who shall proceed with the Works with all due diligence whether or not notice of dissatisfaction is given by him. Reference to arbitration. (c) If the S.O. fails to give a decision for a period of forty-five (45) days after being requested to do so by the Contractor of if the Contractor be dissatisfied with any decision of the S.O., then in any such case the Contractor may within forty-five (45) days after the expiration of forty-five (45) days after he had made his request to the S.O., or forty-five (45) days after receiving the decision of the S.O., as the case may be, require that such dispute or difference be referred to arbitration and final decision of a person to be agreed 6 between parties to act as the Arbitrator. The arbitration shall be held at the Regional Centre for Arbitration at Kuala Lumpur, using the facilities and assistance available at the Centre. Reference to arbitration shall not be commenced until after completion of Works. (d) Such reference, except on any difference or dispute under Clause 52 hereof shall not be commenced until after the completion or alleged completion of the Works or determination or alleged determination of the Contractor’s employment under this contract, or abandonment of the Works, unless with the written consent of the Government and the Contractor. Power of the Arbitrator. (e) The Arbitrator shall have power to review and revise any certificate, opinion, decision, requisition or notice and to determine all matters in dispute which shall be submitted to him, and of which notice shall have been given in accordance with sub-clause (c) aforesaid, in the same manner as if no such certificate, opinion, decision, requisition or notice had been given. Discretion of Arbitrator in respect of costs and award. (f) Upon every or any such reference the costs of such incidental to the reference and award shall be in the discretion of the Arbitrator who may determine the amount thereof, or direct the amount to be taxed as between solicitor and client or as between party and party, and shall direct by 7 whom and to whom and in what manner the same be borne and paid. Award of Arbitrator is final. (g) The award of the Arbitrator shall be final and binding on the parties. Appointer of Arbitrator. (h) In the event of the death of the Arbitrator or his unwillingness or inability to act, then the Government and the Contractor upon agreement shall appoint another person to act as the Arbitrator, and in the event the Government and the Contractor failing to agree on the appointment of an Arbitrator, an Arbitrator shall be appointed by the person named in the Appendix to these Conditions. Arbitration Act 1952. (i) In this condition, “reference” shall be deemed to be reference to arbitration within the meaning of the Arbitration Act 1952 (Revised – 1972).” [9] Under the Contract, any reference to the "Government" shall be read as a reference to the Plaintiff and that the S.O. is the Managing Director of the Plaintiff. [10] S 18 of the Arbitration Act 2005 provides as follows: “Competence of arbitral tribunal to rule on its jurisdiction: 8 (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. (2) For the purposes of subsection (1) – (a) an arbitration clause which forms part of an agreement shall be treated as an agreement independent of the other terms of the agreement; and (b) a decision by the arbitral tribunal that the agreement is null and void shall not ipso jure entail the invalidity of the arbitration clause. (3) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. (4) A party is not precluded from raising a plea under subsection (3) by reason of that party having appointed or participated in the appointment of the arbitrator. (5) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (6) Notwithstanding subsections (3) and (5), the arbitral tribunal may admit such plea if it considers the delay justified. (7) The arbitral tribunal may rule on a plea referred to in subsection (3) or (5), either as a preliminary question or in an award on the merits. 9 (8) Where the arbitral tribunal rules on such a plea as a preliminary question that it has jurisdiction, any party may, within thirty days after having received notice of that ruling appeal to the High Court to decide the matter. (9) While an appeal is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. (10) No appeal shall lie against the decision of the High Court under subsection (8).” (emphasis added) Whether an appeal under s 18(8) of the Arbitration Act 2005 is by way of a rehearing rather than a review of the Arbitrator's decision on jurisdiction [11] The Plaintiff submitted that a challenge to the decision of the Arbitrator is by way of an appeal to this Court and not by way of a reference on a question of law or by way of a review and as such, being an appeal under s 18(8), it is by way of a rehearing of the issues by this Court and not merely a review of the Arbitrator’s decision. There is merits for this contention and supported to by some authorities of high standing from other jurisdictions having a similar legislation. [12] Learned counsel for the Plaintiff, Mr T Baskaran, referred to the Supreme Court of England's decision in Dallah Real Estate and 10 Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2012] EWHC 3518 (Comm) where it was observed as follows: “21 Moreover, I have to say that I find it difficult to understand exactly what Miss Heilbron had in mind when submitting that the court should accord deference to the tribunal’s conclusions, particularly in view of the fact that she asserted that the principle was flexible in its application. If it meant no more than that the court should have regard to the tribunal’s reasoning in reaching its own conclusion, I should have little difficulty with it, since the tribunal’s reasons will almost invariably be before the court and will carry as much persuasive weight as their cogency gives them. That is not, however, what I understood her to mean, since it was essential to her argument that the court should at least accord great weight to the tribunal’s conclusions unless they are clearly wrong. However, as became clear in the course of argument, it is impossible to formulate any satisfactory principle that falls somewhere between a limited review akin to that which the court undertakes when reviewing the exercise of a judicial discretion and a full rehearing, not to mention one that is also capable of flexibility in its application. Moreover, for the court to defer to the tribunal’s conclusions in the manner suggested by Miss Heilbron when it is required to decide whether a particular state of affairs has been proved would be to give the award a status which the proceedings themselves call into question. It is for similar reason that our courts have consistently held that proceedings challenging 11 the jurisdiction of an arbitral tribunal under section 67 of the Arbitration Act 1996 involve a full rehearing of the issues and not merely a review of the arbitrators’ own decision.” (emphasis added) [13] That approach was followed by the High Court of England in Central Trading & Exports Ltd v Fioralba Shipping Company the Kalisti [2015] 1 All ER (Comm) 580 as follows: “[9] A series of first instance cases has made clear that a s 67 challenge involves a rehearing (and not merely a review) of the issue of jurisdiction, so that the court must decide that issue for itself. It is not confined to a review of the arbitrators’ reasoning, but effectively starts again. That approach has been confirmed by the Supreme Court in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, [2011] 1 All ER 485, [2011] 1 AC 763, which also makes clear that the decision and reasoning of the arbitrators is not entitled to any particular status or weight, although (depending on its cogency) that reasoning will inform and be of interest to the court.” (emphasis added) [14] S 67 of the English Arbitration Act 1996 provides as follows: "Challenging the award: substantive jurisdiction. (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court — 12 (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3)." [15] Whilst the word "application" is used in the English Arbitration Act 1996, our section is even more emphatic as it uses the word "appeal" in s 18(8) Arbitration Act 2005. [16] This Court would follow the same approach as if hearing the issue afresh and uninfluenced by the prior decision of the Arbitrator either way, respecting always the cogency of reasons given by the Arbitrator but unrestrained by what has undergirded his decision. Whether a reference to the S.O. under Clause 54(a) and (b) of the Contract is a precondition or a condition precedent to Arbitration under Clause 54(c) of the Contract [17] A precondition or a condition precedent is a condition that has to be fulfilled before a right accrues. Once it is contractually agreed upon, the parties should be held to the bargain unless such an agreement is prohibited by law or that it is too vague for enforcement. Here it has not been suggested that there is a statutory prohibition against it. 13 [18] Both parties have agreed contractually to a pre-condition to be fulfilled before there can be a valid reference to Arbitration. An Arbitrator's jurisdiction is contractually agreed by both parties to an Arbitration Agreement. In a very real sense, until and unless the contractually agreed conditions are fulfilled for the reference to Arbitration, the Arbitrator concerned cannot assume jurisdiction. There is no good reason not to hold them to the bargain struck. The requirement that the Contractor must first refer the dispute or difference to the Employer's S.O. who is Dato’ Dr. Sr. Kamarul Rashdan Bin Salleh, the Managing Director of the Plaintiff, for a decision before the dispute is referred to arbitration in accordance with clauses 54(a) and (b) of the Contract, is clearly in the form of a condition precedent to clause 54(c). [19] There is a discernible judicial trend in upholding preconditions or conditions precedent that parties have agreed before proceeding with Arbitration. The outcome of such a precondition might be a reference to "mediation" or "negotiations in good faith" or "a resolution by the S.O. and his decision to be had first" or even to different "escalating tiers of meetings with representatives from both sides in terms of seniority" before Arbitration is commenced. The rationale is not difficult to find. Arbitration has grown to be time-consuming and costly compared to Litigation in jurisdictions where the courts are efficient. In our system 14 where courts are enjoined to complete a trial within 9 months of filing of the originating process, and where filing fees are a pittance compared to Arbitrator's fees, it may well be a case where the cure through Arbitration might well be worse than the disease. As such every incentive should be given especially where parties have bargained to explore other alternative means of dispute resolution before Arbitration or Litigation, that those alternative means should be exhaustively explored. [20] I cannot appreciate how a reference to the S.O. wherein the Contractor need to only wait for 45 days at most before proceeding with a Notice of Arbitration can derail or delay any resolution of a dispute longer than necessary before proceeding with Arbitration. [21] In fact, our Courts have been more than ready to uphold a condition precedent clause as a precursor to be fulfilled before launching into an expensive Litigation or even a more expensive Arbitration; not to mention the protracted nature of such a mode of dispute resolution. [22] Even when a Litigation that has been commenced involving some parties who are not parties to an Arbitration Agreement, our Court has not hesitated to require the parties who are parties to an Arbitration Agreement to comply with the precondition of negotiations before proceeding with Arbitration. In this context, the judgment of the Court of 15 Appeal in Renault SA v Inokom Corp Sdn Bhd & Anor and Other Appeals [2010] 5 MLJ 394 at para 15-16 is especially relevant where it was, inter alia, observed as follows: “[15] Whether or not there was a breach of the master agreement is certainly a dispute which falls squarely within the ambit of the arbitration agreement found in Article 11 of the master agreement which reads: All disputes arising from or in connection with the performance or interpretation of this Agreement shall be settled by the Parties through friendly negotiations between authorized representatives of the Parties. If an amicable solution cannot be reached between the Parties within two (2) months after the beginning of the said negotiations, such dispute shall be submitted to arbitration. [16] The fact that Tan Chong and TC Euro have been named as alleged co-conspirators does not change the fact that a mechanism for resolving disputes between Renault, Inokom and Quasar has been agreed upon. Therefore, mechanism should be rightly invoked and the disputes resolved by arbitration and not by litigation in court. The parties should honour Article 11 and give it life and meaning, to resolve disputes amicably. A devious attempt to circumvent Article 11, by instituting an action against Renault jointly with parties not subject to the arbitration clause, should not be encouraged.” (emphasis added) 16 [23] Likewise in Total Future Sdn Bhd v Government of Malaysia & Ors [2013] 9 MLJ 288 at para 6, 10-14 the High Court held, inter alia, as follows: “[6] The defendants, represented by counsel, Mr Taufik bin Mohd Yusoff and Mr McWillyn Jiok respectively, have disputed the claim, stating in the main that the plaintiff has been paid in full the differential sum in the prices of diesoline and is therefore estopped from claiming the difference, having signed the final certificate for payment. They have also contended in their defences that the plaintiff’s action is premature for failing to refer the dispute on the said price of diesoline for arbitration as provided in cl 2.37.2-2.37.3 of the special conditions of contract. The said clause reads: Precondition to Arbitration or Litigation 2.37.2 Unless and until a party has complied with the following conditions, notices and submissions that party may not with respect to any dispute or difference commence proceedings whether by way of litigation or arbitration. Notices and Submission 2.37.3 If any dispute or difference shall arise between the Employer and/or the engineer, and the Contractor, either during the progress or after completion of the Works, or after the determination of the Contractor’s employment, or breach of this Contract, as to: 17 (i) the construction of this Contract, or (ii) any matter of thing of whatsoever nature arising under this Contract, or (iii) ... then, subject nevertheless to Clause 2.33, such dispute or difference shall be decided as follows: (a) the Contractor shall, not later than fourteen (14) days after the dispute or difference arises, submit the matter at issue in writing, by hand or by AR Registered mail, specifying with detailed particulars the matter at issue (which in the case of claims covered by Clause 2.33 shall be limited to the particulars notified by the Contractor under that Clause), to the Engineer for decision, and the Engineer shall, as soon as practicable thereafter give his decision to the Contractor. (b) If the Contractor is dissatisfied with the decision given by the Engineer pursuant to (a) above, he may, not later than fourteen (14) days after the decision of the Engineer is given to him, submit the matter at issue in writing by hand or by AR Registered Mail specifying with detailed particulars the matter at issue, to the Employer for decision and the Employer shall, as soon as practicable thereafter, give its decision to the Contractor in writing. PROVIDED that the detailed particulars of the matter at issue shall be limited to those particulars which the Contractor under (a) above. (c) If the Contractor is, dissatisfied with the decision given by the Employer pursuant to (b) above, he may, not 18 later than twenty-eight (28) days after the decision of the Employer is given to him, give notice in writing by hand or by AR Registered Mail to that effect. The parties shall then, within a further 28 days seek to agree upon a process of resolving the whole or part of the dispute or difference by means other than litigation or arbitration, and furthermore shall attempt to agree upon: (i) the procedure and timetable for any exchange of documentation and other information relating to the dispute or difference; (ii) procedural rules and a timetable for the conduct of the selected mode of proceeding; (iii) a procedure for the selection and compensation of a neutral person who may be employed by the parties for assisting in resolving the dispute; and (iv) whether the parties should seek the assistance of a dispute resolution organisation. ... [10] When I examined the said cl 2.37, though the clause and its sub-clauses deal with the pre conditions to starting ‘litigation or arbitration’ arbitration is indeed a mandatory dispute resolution in the agreement between the parties of ‘the construction of the contract or any matter or thing of whatsoever nature arising under this contract’ as per cl 2.37.3(i)-(11) because of the incorporation of cl 43 of the general conditions of contract, one of the four documents forming the agreement between the parties. This clause is specifically mentioned in cl 19 2.37.4 of the special conditions of contract and the relevant first part of that long clause is reproduced below. Clause 2.37.4 reads: Notice of Reference to Arbitration 2.37.4 After the expiration of the time established by or agreed under Clause 2.37.3 for agreement on a dispute resolution process, any party which has otherwise complied with the provisions of this clause, may in writing delivered by hand or by AR Registered mail terminate the alternative dispute resolution process provided for and thereafter give notice to the other party requiring the dispute or difference to be referred to arbitration, in accordance with clause 43. (Emphasis added) It shall furthermore be deemed to be agreed that the Arbitrator’s jurisdiction in relation to the arbitration proceedings shall be limited to a determination of those matters which were identified in the original notice provided pursuant to Sub-Clause 2.37.3(a) and that in making his determination, the Arbitrator shall only be entitled to have regard to those particulars concerning the dispute provided pursuant to Sub-Clause 2.37.3(a) and it is further agreed that the party issuing the notice pursuant to Sub-Clause 2.37.3(a) shall be absolutely barred from raising or relying upon any particulars other than those provided in the notice issued pursuant to Sub-Clause 2.37.3(a). 20 [11] Clause 43 of the general conditions of contract reads as follows: 43. Provided always that in case any dispute or difference shall arise between the Employer or the Engineer on his behalf and the Contractor, either during the progress or after the completion or abandonment of the Works, as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith ..., then either party shall forthwith give to the other notice in writing of such dispute or difference, and such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed upon between the parties in accordance with an subject to the provisions of the Arbitration Ordinance, and the award of such Arbitrator shall be final and binding on the parties. (Emphasis added) [12] Now when the said cl 2.37.3 (quoted earlier) and 2.37.4 are read together with cl 43, their combined effect makes it clear that arbitration is a mandatory process for resolving the dispute of the parties as stated above and it cannot be denied that this claim for reimbursement of the difference in the price of diesoline comes within the ambit of the said cl 2.37.3(i)-(ii). [13] What is even clearer is that the pre-conditions stated in 2.37.3 on the requirement to give notices and the timelines to do so stated in the said clauses are also mandatory to the dispute resolution of the parties herein, 21 whether arbitration or litigation is ultimately pursue. The plaintiff’s managing director (WI’) admitted in his evidence that no such notices were issued by the plaintiff. On this issue too, I was helpfully reminded by Mr Mohd Taufik, in his written submission, of the Federal Court decision in Morello Sdn Bhd v Jacques (International) Sdn Bhd [1995] 1 MLJ 577 where Edgar Joseph Jr FCJ held that for the purposes of construction of contracts the intention of the parties is the meaning of the words they have used. Hence, said His Lordship, the question to be answered always is ‘what is the meaning of what the parties have said’, and not ‘what did the parties mean to say’. [14] When I posed that question in this case, it is obvious that the parties have intended for these pre conditions as a precursor to the resolution of their dispute whether it be by arbitration or litigation and I could only give effect to it as they have so agreed. I next consider the issue on estoppels.” (emphasis added) [24] As was clear in the above case, there was a 2-tier reference, first to the Engineer and then to the Employer for a decision of the dispute or difference before a reference to Arbitration or Litigation and the Court had no problem keeping the parties to the bargain struck irrespective of what one party may now feel as being tedious and troublesome with little or no prospects of success in that if parties could resolve, they would have resolved it by then without the need to go through the formalities of 22 prior references again before resorting to Arbitration or Litigation as the case may be. [25] As pointed out by the Plaintiff, across the causeway in Singapore, the Courts there have taken a similar approach. In the judgment of the Court of Appeal of Singapore, in International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and Another [2014] 1 SLR 130 at para 7, 54-55, the Court of Appeal dealt with a multi-tier meetings escalating upwards where seniority of representatives from both sides are concerned and only if still unresolved, then only may the matter be referred for arbitration. Far from being uncertain and thus unenforceable, the Court of Appeal agreed with the High Court that the clause was clear and certain and indeed mandatory and must be complied with by the parties as a condition precedent to Arbitration. The Court of Appeal reasoned thus at para 7, 54-55 as follows: “7 The Cooperation Agreement contained a multi-tiered dispute resolution mechanism (“the Dispute Resolution Mechanism”), which was set out in cl 37.2 read with cl 37.3. Clause 37.2 states: 37.2 Any dispute between the Parties [ie, the Plaintiff and Datamat] relating to or in connection with this Cooperation Agreement or a Statement of Works shall be referred: 23 37.2.1 first, to a committee consisting of the Parties’ Contract Persons or their appointed designates for their review and opinion; and (if the matter remains unresolved); 37.2.2 second, to a committee consisting of Datamat’s designee and Lufthansa Systems’ [ie, the Plaintiff’s] Director Customer Relations; and (if the matter remains unresolved); 37.2.3 third, to a committee consisting of Datamat’s designee and Lufthansa Systems’ Managing director for resolution by them, and (if the matter remains unresolved); 37.2.4 fourth, the dispute may be referred to arbitration as specified in Clause 36.3 [sic] hereto. Clause 37.2.4 refers incorrectly to cl 36.3. The correct clause to refer to is cl 37.3, which reads: All disputes arising out of this Cooperation Agreement, which cannot be settled by mediation pursuant to Clause 37.2, shall be finally settled by arbitration to be held in Singapore in the English language under the Singapore International Arbitration Centre Rules (‘SIAC Rules’). The arbitration panel shall consist of three (3) arbitrators, each of the Parties has the right to appoint one (1) arbitrator. The two (2) arbitrators will in turn appoint the third arbitrator. Should either Party fail to appoint its respective 24 arbitrator within thirty (30) days from the date of the last appointment of the two arbitrators, the arbitrators not so appointed shall be appointed by the chairman of the SIAC Rules within thirty (30) days from a request by either Party. ... 54 Before both the Tribunal and the High Court, the Plaintiff argued that the preconditions for arbitration in cl 37.2 of the Cooperation Agreement were unenforceable for uncertainty. The Judge held that those preconditions were not uncertain and that cl 37.2 was enforceable (see the Judgment at [92]-[97]). The Plaintiff did not appeal against this finding of the Judge. In our judgment, this was well- advised because we agree with the Judge on this count, assuming that the objection which we have noted above (at [51]) can be overcome. The language or cl 37.2 was clear – it set out in mandatory fashion and with specificity the personnel from, the Plaintiff’s side who were required to meet with Datamat’s designees as part of a series of steps that were to precede the commencement of arbitration; it further specified the purpose of each such meeting, which was to try to resolve any dispute that had arisen between the parties. We also agreed with the Judge’s finding (see the Judgment at [100] that the steps set out in cl 37.2 were conditions precedent to any reference to arbitration pursuant to cl 37.3. Significantly, the arbitration clause itself in cl 37.3 refers only to “disputes ... which cannot be settled by mediation pursuant to Clause 37.2”. 25 55 Finally, we noted that there was no suggestion that the Appellant had waived the preconditions for arbitration in cl 37.2." (emphasis added) [26] There is a clear paradigm and indeed purposeful shift towards enforcing a precondition good faith negotiation and friendly discussion clause or even a mediation clause in resolving a dispute or difference that has arisen between the parties and a fortiori, when the precondition takes the form of a sieving mechanism of a definite reference to the S.O. for a decision before the parties launched into a full-blown Arbitration or Litigation, consuming in its wake much time and financial resources which would doubtless take a toll on the parties. Like all battles fought and won, even the winner is not without its casualties. [27] This approach of the Courts in its readiness to keep the parties to their contractual bargain of a precondition to meet to discuss and negotiate or mediate in good faith can be seen too in the English Courts as illustrated in a more recent judgment of the High Court of England, in Emirates Trading Agency LLC v Prime Mineral Exports Pte Ltd [2014] EWHC 2104 (Comm) at para 42, 47, 50, 54, 57, and 64. The High Court there traced the initial reluctance of the courts to enforce such a clause and now see it additionally as consistent with public interest to uphold it: 26 “42 In United Group Rail Services Ltd v Rail Corpn New South Wales (2009) 127 Con LR 202 a contract for the design and build of rolling stock contained a dispute resolution clause which provided that the parties should “meet and undertake genuine and good faith negotiation with a view to resolving the dispute”; failing such resolution the dispute could be arbitrated. The New South Wales Court of Appeal held that the obligation to negotiate was enforceable. Allsop P carried out an extensive examination of the English and Australian authorities. He accepted that an agreement to agree was unenforceable but said that it did not follow that an agreement to undertake negotiations in good faith to settle a dispute arising under a contract was unenforceable. ... 47 This cogent reasoning can be applied to the present case as follows. The clause in the present case obliged the parties to seek to resolve a dispute by friendly discussions and provided for four weeks to expire before arbitration could be commenced. Such an agreement is complete in the sense that no essential term is lacking. Since it is an obligation to seek to resolve a dispute arising under the LTC the discussions would concern the rights and obligations arising from the LTC with a view to reaching a compromise of the dispute which reflects the existing bargain between the parties. There would not be an open- ended discussion concerning each party’s commercial interests without regard to the rights and obligations under the LTC. Thus the agreement has sufficient certainty to be 27 enforceable. Whilst it may be difficult in some circumstances to establish a breach of the obligation there will be other circumstances in which a court is likely to be able to identify conduct, if it exists, which departs from the conduct expected of parties who have agreed to seek to resolve contractual disputes by friendly discussions. For example, a party who refused to discuss his claim at all could easily be shown to have breached the obligation to seek to resolve his claim by friendly discussion. Difficulty of proof of breach in some cases does not mean that the clause lacks real content. If a party were to seek damages for breach of the obligation it might be difficult to establish what the outcome of the discussions would have been but in such a case damages could, in appropriate cases be awarded for loss of a chance. Concluding that the obligation was enforceable would be consistent with the public policy of encouraging parties to resolve disputes without the need for expensive arbitration or litigation. ... 50 However, where commercial parties have agreed a dispute resolution clause which purports to prevent them from launching into an expensive arbitration without first seeking to resolve their dispute by friendly discussions the courts should seek to give effect to the parties’ bargain. Moreover, there is a public interest in giving effect to dispute resolution clauses which require the parties to seek to resolve disputes before engaging in arbitration or litigation. ... 54 Recent developments in the law of Singapore support this approach. In International Research Corpn plc v Lufthansa 28 Systems Asia Pacific Pte Ltd [2013] 1 Lloyd’s Rep 24 the High Court of Singapore had to consider whether a clause which referred to arbitration disputes “which cannot be settled by mediation” provided for a condition precedent to arbitration which was too uncertain to be enforceable. The arbitral tribunal had held that it was. But the High Court held that it was enforceable. Reference was made to a decision of the Singapore Court of Appeal in HSBC Institutional Trust Services (Singapore) Ltd v Toshin Development Singapore Pte Ltd [2012] 4 SLR 378 which concerned a contract which obliged parties to endeavour in good faith to agree a new rent. The Walford case [1992] 2 AC 128 was distinguished on the basis that that case concerned a stand alone agreement where there was no other overarching contractual framework which governed the parties’ relationship. ... 57 It is also to be noted that (at least some) International Centre for Settlement of Investment Disputes (“ICSID”) tribunals regard obligations to seek to resolve disputes by negotiation in good faith as binding and enforceable: see, for example, Tulip Real Estate Investment and Development Netherlands BV v Republic of Turkey (ICSID Case No ARB/11/28)(unreported)5 Marche 2012, paras 56-72. ... 64 In my judgment such an agreement is enforceable. My reasons (which largely echo those of Allsop P in the United Group Rail Services case) may be summarised as follows. The agreement is not incomplete; no term is missing. Nor is it uncertain; an obligation to seek to 29 resolve a dispute by friendly discussions in good faith has an identifiable standard, namely, fair, honest and genuine discussions aimed at resolving a dispute. Difficulty of proving a breach in some cases should not be confused with a suggestion that the clause lacks certainty. In the context of a dispute resolution clause pursuant to which the parties have voluntarily accepted a restriction on their freedom not to negotiate it is not appropriate to suggest that the obligation is inconsistent with the position of a negotiating party. Enforcement of such an agreement when found as part of a dispute resolution clause is in the public interest, first, because commercial men expert the court to enforce obligations which they have freely undertaken and, second, because the object of the agreement is to avoid what might otherwise be an expensive and time consuming arbitration.” (emphasis added) [28] The Australian courts too have demonstrated a distinct willingness to enforce preconditions to Arbitration or Litigation via some "genuine and good faith negotiations" clauses. The judgment of the New South Wales Court of Appeal, in United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 at para 70, 73, 78 to 81 is illustrative of this approach: “70 ... The content and context here is a clearly worded dispute resolution clause of an engineering contract. It is to be anticipated at the time of entry into the contract that disputes 30 and differences that may arise will be anchored to a finite body of rights and obligations capable of ascertainment and resolution by the chosen arbitral process (or, indeed, if the parties chose, by the Court). The negotiations (being the course of treaty or discussion) with a view to resolving the dispute will be anticipated not to be open-ended about a myriad of commercial interests to be bargained for from a self-interested perspective (as in Coal Cliff). Rather, they will be anticipated to involve or comprise a discussion of rights, entitlements and obligations said by the parties to arise from a finite and fixed legal framework about acts or omissions that will be said to have happened or not happened. The aim of the negotiations will be anticipated to be to resolve a dispute about an existing bargain and its performance... ... 73 These are not empty obligation; nor do they represent empty rhetoric. An honest and genuine approach to settling a contractual dispute, giving fidelity to the existing bargain, does constrain a party. The constraint arises from the bargain the parties have willingly entered into. It requires the honest and genuine assessment of rights and obligations and it requires that a party negotiate by reference to such. ... 78 This is a dispute resolution clause. To require in such a clause this degree of constraint on the positions of the parties reflects developments in dispute resolution generally. The recognition of the important public policy in the interests of the efficient use of public and private resources and the promotion of the private interests of members of the public and the 31 commercial community in the efficient conduct of dispute resolution in litigation, mediation and arbitration in a fair, speedy and cost efficient manner attends all aspects of dispute resolution: cf “just, quick and cheap resolution of the real issues”: Civil Procedure Act 2005 (NSW), s 56. Parties are expected to co-operate with each other in the isolation of real issues for litigation and to deal with each other in litigation in court in a manner requiring co-operation, clarity and disclosure: see for example Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Limited [2008] NSWCA 243 at [160]-[165] and Bellevarde Constructions Pty Ltd v CPC Energy Pte Ltd [2008] NSWCA 228 at [55]-[56]. As part of its procedure, the Court can order mediation: Civil Procedure Act, s 26. Section 27 of that Act states that it is the duty of each party to the proceedings that have been referred to mediation to participate “in good faith” in the mediation. Costs sanctions can attend this duty cf Capolingua v Phylum Pte Ltd (1991) 5 WAR 137. 79 The contract here is, of course, not one governed by the Civil Procedure Act. It is, however, a modern contract with a sophisticated and detailed dispute resolution clause seeking to employ various tools to resolve disputes. The definition of “Law” in cl 2.2 makes clear that the law of New South Wales (and, implicitly, the common law of Australia) is the proper law of the contract. One of the available tools of dispute resolution is the obligation to engage in negotiations in a manner reflective of modern dispute resolution approaches and techniques – to negotiate genuinely and in good faith, with a fidelity to the bargain and to the rights and obligations it has produced within 32 the framework of the controversy. This is a reflection, or echo, of the duty, if the matter were to be litigated in court, to exercise a degree of co-operation to isolate issues for trial that are genuinely in dispute and to resolve them as speedily and efficiently as possible. 80 The public policy in promoting efficient dispute resolution, especially commercial dispute resolution, requires that, where possible, real and enforceable content be given to clauses such as cl 3 at para 5.11 and 35.12 to encourage approaches by, and attitudes of, parties conducive to the resolution of disputes without expensive litigation, arbitral or curial. 81 The business people here chose words to describe the kind of negotiations they wanted to undertake, “genuine and good faith negotiations”, meaning here honest and genuine with a fidelity to the bargain. That should be enforced. In my view, subcl 35.11(c) was not uncertain and had identifiable content.” (emphasis added) [29] Thus where there is a sufficiently clear reference to the S.O. for a decision before proceeding to Arbitration as in the nature of a precondition or condition precedent, both the intention of the parties as captured in the clear words of clause 54(a) and (b) as well as public interest would operate to constrain the Courts to enforce such a clause. 33 Whether the various correspondence between the parties and in particular the letter from the Defendant to the Plaintiff dated 3 September 2010 is sufficient substantial fulfillment of the condition precedent before reference to Arbitration as required under Clause 54(a) and (b) of the Contract [30] The reference by the Contractor to the S.O. for a decision of the differences or disputes must be a reference of sufficient particularities addressed to the S.O. such that anyone reading the said reference in writing would know clearly that it is a reference under clause 54(a) of the Contract, calling for a decision in writing within 45 days of the reference. It is a reference with a request for a decision because there is a time frame for the S.O. to revert in writing with his decision, failing which consequences ensue. If the S.O. does not reply in writing within 45 days of the reference, then the Contractor may proceed with Arbitration within 45 days thereafter. If the Arbitrator does reply in writing, then the Contractor may proceed with Arbitration before the expiry of 45 days from the date of receipt of the written decision. Without knowing which letter is a reference under clause 54(a), there will be the corresponding difficulty as to when reference to Arbitration ought to be made. Parties must be deemed to have prized promptness in proceeding with the next stage of dispute resolution via Arbitration by agreeing to the timeline set, 34 quite apart from the fact that such a timeline may or may not be binding on the parties as may be held by the Court. [31] Whilst appreciating that substance must prevail over form, one must ask whether there is a semblance of sufficient compliance with substance in all the circumstances of the case in the correspondence referred to by the Contractor. I can do no better than to reproduce the commentary by the learned author, Lim Chong Fong, now a Judicial Commissioner, in his commentary on the PWD 203 Contract in The Malaysia PWD Form of Construction Contract (2nd edn, Sweet & Maxwell Asia 2011) at p 154 with respect to clause 54 as follows: “The arbitration agreement herein provides a two tier process in that it is a condition precedent that any dispute or difference must be first referred to the Officer Named for a decision before the dispute or difference can be referred to arbitration. Though not expressed, it is submitted that the referral to the Officer Named can be made during the progress or after completion of the Works, or after the termination of the Contract. The referral can be made either by the Contractor or the Government so long as a dispute or difference has arisen between them. A dispute or difference arises when a claim is represented by one party and it is rejected by the other (see Perbadanan Kemajuan Negeri Perak v Asean Security Paper Mill Sdn Bhd [1991] 3 CLJ 2400 and Gadang Engineering (M) Sdn Bhd v Bluwater Developments Bhd [2010] 5 AMR 41; [2010] 6 CLJ 277). 35 The referral to the Officer Named must be made in clear terms to invoke the first of the two tier process, preferably quoting this clause in the referral (see Penta Ocean Construction v Penang Development Corporation [2003[ 2 AMR 311).” (emphasis added) [32] Therefore in determining whether the referrals by way of letters written to try to resolve the dispute or difference are sufficient compliance with clause 54(a) and (b), one must be confined to the letters written before the reference to Arbitration via the Notice to Arbitrate. One must bear in mind that what is in issue here is whether a precondition or a condition precedent has been fulfilled and obviously any fulfillment of such a condition must be with reference to actions before the Notice to Arbitrate and not after. Letters after the said Notice to Arbitrate and meetings held pursuant to such letters would not be relevant. [33] In particular, the Defendant through its learned counsel Encik Mohd Irzan Iswatt, referred to its letter dated 3 September 2010 as amounting to a referral of disputes or differences to Dato’ Dr. Sr. Kamarul Rashdan for a decision in accordance with clause 54 of the Contract. See affidavit of Mohd Zahari affirmed on 12 February 2016, paragraphs 14 to 15. The full contents of the Defendant’s letter dated 3 September 2010 are as follows: 36 “Rujukan Kami: AB/Zila/2010/0278 Tarikh: 3hb September 2010 USAHASAMA SPNB-LTAT SDN BHD Tingkat 10, Bangunan MAS Jalan Sultan Ismail 50250 Kuala Lumpur U/p: Yg.Bhg. Prof.Dr. Sr. Kamarul Rashdan Hj Salleh CADANGAN PEMBANGUNAN PERUMAHAN UNTUK ANGGOTA- ANGGOTA TENTERA DAN KAKITANGAN AWAM DI LEMBAH KELANG – KEM SUNGAI BESI (PAKEJ 5A) - “Draft of final Account Statement” Dengan hormatnya surat USL/SGBS(5A)/1/35/Jld.5/CAD(25) bertarikh 12hb Ogos 2010 berkenaan perkara di atas adalah dirujuk. Untuk makluman pihak Yg.Bhg. Prof., penamatan kontrak kami adalah tidak sah kerana kelewatan siap kerja adalah berpunca daripada: 1) Masalah Pembayaran Kelewatan siap kerja adalah berpunca daripada masalah pembayaran bukannya disebabkan kegagalan kami menjalankan kerja-kerja kontrak secara gigih dan berterusan. Seperti yang pihak SPNB-LTAT sedia maklum, kami tetap meneruskan kerja-kerja di tapak walaupun aliran tunai projek terjejas berikutan pembayaran yang diterima dari pihak SPNB-LTAT adalah “under payment” iaitu sejak bulan Mac 2006, di mana perbezaan di antara pencapaian fizikal dengan kewangan adalah sebanyak 15% atau RM9.0 juta. Di samping itu juga, aliran tunai projek turut terjejas berikutan kegagalan pihak Yg. Bhg. Prof. menjelaskan bayaran sejak bulan Ogos 2007 sehingga Februari 2008. Perkara ini telah kami maklumkan melalui surat kami ABI/HZ/2008/128 bertarikh 25hb Februari 2008 2) Lanjutan Masa (Extension of Time) Bilangan hari yang diluluskan oleh pihak SPNB-LTAT adalah tidak setara dengan bilangan hari yang dipohon. Pihak SPNB-LTAT juga telah menolak tuntutan Lanjutan Masa No. 5 dan 6 yang dipohon pada Oktober dan November 2007. (Rujuk Lampiran A) Di sini, kami juga ingin menyatakan bahawa kami tidak bersetuju terhadap bayaran muktamad yang diperakukan iaitu berjumlah (RM4,224,317.83). Ini berasaskan kepada faktor-faktor berikut yang tidak diambil kira: a. Kerja-kerja tambahan (Variation Order) Jumlah keseluruhan tuntutan ke atas kerja-kerja tambahan adalah sebanyak RM3,323,978.79. Jumlah yang diperakukan di dalam penyata akaun muktamad hanya RM1,578,250.00. Baki tuntutan berjumlah RM1,745,728.79 tidak dipertimbangkan di dalam penyata akaun muktamad tersebut. 37 b. Kerja-kerja membaikpulih (Rectification Works) Jumlah keseluruhan tuntutan ke atas kerja-kerja membaikpulih adalah sebanyak RM5,979,016.70. Jumlah yang diperakukan di dalam penyata akaun muktamad hanya RM1,756,971.11. Baki tuntutan berjumlah RM4,222,045.59 tidak dipertimbangkan di dalam penyata akaun muktamad tersebut. c. Nilai kerja dilaksanakan (Work Done) Nilai keseluruhan kerja-kerja yang telah dilaksanakan tidak termasuk kerja-kerja tambahan dan membaikpulih adalah sebanyak RM50,322,130.13 (Rujuk Lampiran A). Jumlah yang diperakukan di dalam penyata akaun muktamad hanya RM45,562,801.06. Baki tuntutan berjumlah RM4,759,329.07 tidak dipertimbangkan di dalam penyata akaun muktamad tersebut. d. Wang Jaminan Perlaksanaan (Bank Guarantee) Tuntutan ke atas wang jaminan perlaksanaan berjumlah RM3,240,625.00. Pihak SPNB-LTAT tidak wajar menuntut wang perlaksanaan ini berikutan penamatan kontrak adalah tidak sah. 4. Gantirugi tertentu dan ditetapkan (Liquidated and Ascertained Damages) Berikutan penamatan kontrak kami adalah tidak sah, kami tidak bersetuju terhadap gantirugi tertentu yang dikenakan berjumlah RM4,798,800.00. Berdasarkan keterangan di atas, kami berharap pihak Yg. Bhg. Prof. dapat mempertimbangkan faktor-faktor tersebut dalam penyediaan perakuan akaun dan bayaran muktamad. Berdasarkan pengiraan kami, baki tuntutan kami adalah berjumlah RM14,611,750.62 (Rujuk lampiran B). Kerjasama dan perhatian dari pihak Yg. Bhg. Prof. amat kami hargai. Sekian, terima kasih. Yang benar, ABI CONSTRUCTION SDN BHD t.t. ...................................................... DATO’ MOHD ZAHARI ABD. RAHMAN Pengarah Urusan s.k Akitek Jururancang (M) Sdn. Bhd. - En. Ahmad Nazran Yahya Ranhill Consulting Sdn. Bhd. - Pn Mariah Kadir Zakaria-Lee dan Partners Sdn. Bhd - Mr Chua Gaik Hwee” [34] Whilst one can surmise the issues that had been raised by the Defendant, the thrust of the letter is not for a decision of the S.O. but an expression of its dissatisfaction over the final accounts as derived and determined by the S.O. It is an appeal to the S.O. to revisit such a 38 determination by taking into consideration the various factors raised by the Defendant. Such a letter falls short of a reference under clause 54(a) of the Contract. There must be sufficient specificity with reference to the disputes or differences and an invocation of the said clause calling for nothing short of a decision. Politeness of language is no substitute for a plain and pointed reference for a decision under clause 54(a). [35] In the judgment of the Court of Appeal of Singapore, in International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2014] 1 SLR 130 at para 56-62, the Court of Appeal could not agree with the High Court that the various rounds of meetings held to resolve the disputes or differences was a sufficient compliance with the multi-tiered reference to negotiations as found in the precondition clause to Arbitration. The Court of Appeal explained as follows: "Compliance Actual compliance 56 When it came to deciding whether cl 37.2 had been satisfied on the evidence before him, the Judge referred to a table produced in an affidavit affirmed on 17 July 2012 by Oliver Marissal, who was the Plaintiff’s chief financial officer at the material time. This table (“the Table”), the Judge noted, showed at least seven meetings between the Appellant and the Plaintiff 39 in Bangkok from February 2007 to July 2009 (see the Judgment at [110]). The Judge concluded (likewise at [110] of the Judgment) that given the many rounds of meetings between the parties, “the object of cl 37.2” [emphasis added] had been met. 57 We respectfully disagree with the Judge on this point. In our judgment, from a perusal of the Table, it would have been apparent that cl 37.2 had not been satisfied. In our judgment, what was contemplated under cl 37.2 was that any dispute would be escalated up the hierarchies of the respective parties with representatives of increasing seniority to meet to attempt resolution. The Table showed that a mix of various apparently random meetings had been held. However, our scrutiny of the Table and of the personnel who attended those meetings revealed that the precise persons required to be involved pursuant to the cl 37.2 process were not so involved (at least where the Plaintiff was concerned). For example, cl 37.2 envisaged the involvement of the Plaintiff’s “Director Customer Relations” (see cl 37.3.3), and then its “Managing Director” (see cl 37.2.3). Yet, from the Plaintiff’s side, none of these personnel who had been designated or specified in cl 37.2 ever participated in the meetings with the Appellant. 58 Aside from this, it was not altogether clear just what had been discussed at these meetings. The Judge did not think that this was problematic because he “[had] not seen any evidence from [the Appellant] that the [p]ayment [d]ispute was never discussed or sought to be resolved at these meetings” (see the Judgment at [110]). With respect, there was no basis for placing 40 the burden of proof on this issue upon the Appellant. It was the Plaintiff which invoked the Dispute Resolution Mechanism and which, therefore, had to assert and prove compliance with the preconditions for arbitration. This, it did not do. Substantial compliance 59 The Judge appeared to have been persuaded that the conditions precedent in cl 37.2 had been satisfied because its “object” (see the Judgment at [110]) had been met. In this regard, the Judge applied the English High Court decision of Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303 (“Halifax Financial”), which was cited to him and also to us. Mr Dhillon submitted that Halifax Financial stood for the proposition that it was sufficient for the Plaintiff to have complied “in substance” with the procedure set out in cl 37.2. Therefore, it was argued, despite some shortcomings in what in fact might have been done, the conditions precedent to the commencement of arbitration should be found to have been fulfilled because their object, namely, to attempt and endeavour to address the dispute between the Appellant and the Plaintiff at the respective parties’ senior management levels with the aim of resolving such dispute, had been satisfied. 60 Halifax Financial concerned an interlocutory appeal where, in respect of the claim brought by the Defendant, the Defendant sought a declaration that the court did not have jurisdiction because there was alleged noncompliance with a dispute resolution clause. There, the dispute resolution clause (“cl 33.1”) read as follows (see Halifax Financial at 305): 41 33.1 In the event of any dispute arising between the Parties in connection with this agreement, senior representatives of the Parties will, within 10 Business Days of a written notice from either Party to the other, meet in good faith and attempt to resolve the dispute without recourse to legal proceedings. Meetings were held between the representatives of the parties, but these were not expressly labelled “cl 33.1 meetings”. McKinnon J held that cl 33.1 prescribed an optional contractual procedure, rather than a mandatory one which had to be complied with before legal proceedings could be brought. Clause 33.1 was thus found not to be a condition precedent to the commencement of legal proceedings. Having decided the matter on this basis, McKinnon J went on to express doubts over the enforceability of cl 33.1, although he also opined that it had been satisfied on the facts. McKinnon J thought that even though the meetings between the parties had not been labelled “cl 33.1 meetings”, both parties had been represented at those meetings by the appropriate “senior representatives” (see Halifax Financial at, inter alia, 309) in their respective organisations. He therefore considered that cl 33.1 had been satisfied. 61 Two points are noteworthy. First, cl 33.1 in Halifax Financial was in much more general terms than cl 37.2 of the Cooperation Agreement in the present case. There is none of the specificity that is inherent in the latter, which envisages, with precision, an escalation of a dispute by way of 42 progressively higher ranks of the Plaintiff’s management meeting with their designated counterparts from the other side in an endeavour to reach a resolution. Second, it is clear that McKinnon J in Halifax Financial would not have concluded as he did had the appropriate “senior representatives” not taken part in the meetings. On this basis, Halifax Financial did not support Mr Dhillon’s submission that substantial compliance of a condition precedent would be sufficient. In fact, Halifax Financial appears to have been decided on the basis that there had been actual compliance with cl 33.1, the only drawback being that the meetings between the parties had not been labelled as having been held pursuant to that clause. To this extent, the case is uncontroversial, although it is also unhelpful to the Plaintiff. 62 Where the parties have clearly contracted for a specific set of dispute resolution procedures as preconditions for arbitration, those preconditions must be fulfilled. In the case before us, it could not be said that the parties intended that some meetings between some people in their respective organisations discussing some variety of matters would be sufficient to constitute compliance with the preconditions for arbitration. This can be seen from among others, the decision of the United States Court of Appeals for the Seventh Circuit in DeValk Lincoln Mercury, Inc, Harold G DeValk and John M Fitzgerald v Ford Motor Company and Ford Leasing Development Company 811 F 2d 326 (7th Circuit, 1987) (more commonly cited as “DeValk Lincoln Mercury, Inc v Ford Motor Company”). That was a case 43 involving a motion by the defendants for summary judgment upon the plaintiffs’ failure to comply with a pre-litigation mediation clause. The court rejected the plaintiffs’ argument that they had substantially complied with the clause on the basis that they had met the purpose of that clause, which, it was argued, was to give the defendants notice of a potential claim and to allow the defendants to attempt to settle the claim prior to litigation. The reasoning in that case is consistent with our own view that where a specific procedure has been prescribed as a condition precedent to arbitration or litigation, then absent any question of waiver, it must be shown to have been complied with.” (emphasis added) [36] The Singapore Court of Appeal concluded as follows at para 63: "63 Given that the preconditions for arbitration set out in cl 37.2 had not been complied with, and given our view that they were conditions precedent, the agreement to arbitrate in cl 37.3 (even if it were applicable to the Appellant) could not be invoked. The Tribunal therefore did not have jurisdiction over the Appellant and its dispute with the Respondent....." [37] I would similarly hold that the various letters and chiefly the letter of 3 September 2010 reproduced above, from the Defendant addressed to the Plaintiff instead of to the S.O. and captioned "Draft of Final Account Statement" do not come close to being a specific reference under clause 54(a) of the Contract though one by reading it, might have 44 a rough idea as to the nature of the dispute. The Defendant did impress upon the Plaintiff why the termination of the Contract is invalid and that it was not agreeable to the draft final account but fell short of invoking clause 54(a) in requiring the S.O. to make a decision within 45 days of the reference to him. [38] Evidence of a series of meetings and negotiations between the parties is not tantamount to a reference under clause 54(a) of the Contract. I cannot agree more with the dicta of the High Court, in Penta- Ocean Construction v Penang Development Corporation [2003] 2 AMR 311 at p 322 where it was held as follows: “I hold that: (a) even if the letter of 22.8.97 is taken to be the Defendant’s decision, it is not material because the time bar in Clause 54 is not predicated on the date of the Defendant’s decision, but on the date of the reference of the dispute by the Plaintiff to the SO and the date of the SO’s decision; (b) I further hold that the letter of 17.9.97 does not constitute a reference by the Plaintiff to the SO for a decision, rather the Plaintiff was seeking to negotiate further with the Defendant when it said: “... Accordingly we would request that you arrange for a further meeting with the client in order to discuss and 45 finally resolve the long outstanding claim matters urgently.” (c) I find that since the Plaintiff’s letter of 17.9.97 did not constitute a reference to the SO, then the SO’s response thereto by way of its letter of 19.9.97 could not be a decision within the meaning of Clause 54. (d) In any event, the contents of the letter of 19.9.97, whereby the Plaintiff was requested to reconsider its position and accept the offer made earlier by the Defendant clearly cannot amount to a decision of the SO.” (emphasis added) Whether the Plaintiff has waived the precondition of a reference of the dispute to the S.O. before the Defendant proceeded to Arbitration [39] The Defendant relied on various correspondences and contended that the action by the Defendant to bring the disputes to Arbitration had never been opposed, objected to or refuted by the Plaintiff and hence constituted a waiver on the part of the Plaintiff towards the precondition stipulated in clause 54 of the Contract. The Court of Appeal's decision in Araprop Development Sdn Bhd v Leong Chee Kong & Anor [2008] 1 MLJ 783 is instructive in cases where it is argued that there has been a waiver. It was observed as follows: 46 “Waiver and/or estoppels [32] The last issue raised by the appellant in this appeal was waiver and/or estoppel. The appellant submitted that under the S&P, delivery of vacant possession on the land was to have been on or before 15 March 1999 and time was made the essence. The appellant submitted that the Plaintiffs elected to keep silent when the delivery of vacant possession was not effected on 15 March 1999. On the other hand, the Plaintiffs continued to pay the quit rent for the years 1999 and 2000 which were their obligations under the S&P. It was further submitted by the appellant that the Plaintiffs waited for two years and three months before issuing the purported notice of termination which was dated 30 June 2001. The appellant contended that the act of the Plaintiffs constituted a waiver and/or gives rise to an estoppel and cited Cheah Koon Tee v Crimson Development Sdn Bhd [1999] MLJU 108; Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151 and Charles Richards Ltd v Oppenheim [1950] 1 All ER 420. [33] In reply, the Plaintiffs submitted that they had never indicated to the appellant that it was acceptable to the Plaintiffs that the appellant fulfilled its promise of the delivery of vacant possession at a later date other than that stipulated by the S&P. Silence and time having passed by themselves are not evidence of a waiver. The Plaintiffs then cited Sakinas Sdn Bhd v Siew Yik Hau & Anor [2002] 5 MLJ 497 and Tai Kim Yew & Ors v Sentul Raya Sdn Bhd [2004] 4 MLJ 227. The Plaintiffs 47 further submitted that the relevant period for the court to look into the conduct of both parties was between the completion date (15 March 1999) to the termination date (30 June 2001). During this period the Plaintiffs did not take any step which could even remotely be said to amount to a waiver save as to pay the quit rent (a statutory payment) which the appellant might have refused to pay whereby opening the Plaintiffs to sanctions by way of fines, etc. For that reason, the Plaintiffs had no choice but to make those payments. Anyway, the Plaintiffs did not play an active role in the payment of quit rent because the quit rent was paid by the appellant on behalf of the Plaintiffs to the local authorities as it is based on the master title which has yet to be sub-divided. Further, it was MBSB who was charged by the appellant for the payment of the quit rent. The appellant did not adduce any other evidence which could be constituted as a waiver or estoppel on the part of the Plaintiffs. [34] The Plaintiffs did not dispute the fact that they did nothing when the date for delivery of vacant possession came into being. The appellant termed this as silent on the part of the Plaintiffs. Silence by itself could not be interpreted as a waiver. It does not mean anything unless there is additional factor which together with the silence could be interpreted or inferred as a waiver and/or estoppel as seen in Sim Chio Huat v Wong Ted Fui where in allowing the time to pass and keeping silent to the repudiation and also the fact that the Plaintiff had asked the appellant to do extra works during that period would as a whole tantamount to a waiver and/or estoppel. In the present 48 appeal, except for the silence, the Plaintiffs did nothing at all. As such, I am of the view that there is no act on the part of the Plaintiffs which could be constituted as a waiver or estoppel.” (emphasis added) [40] In further support of the above proposition, the Plaintiff relied on the judgment of the High Court, in Eagle Eye Capital Sdn Bhd v Roselina Binti Tan Sri Mahmood [2011] 1 LNS 234 at page 7 where it was held as follows: “I have considered the competing contentions of both parties. It appears to this Court that a reading of the Letter of Advance clearly contemplates that the Definitive Agreements were to be executed within 45 days of drawdown. It is not in dispute that the drawdown was effected as set out above. Therefore time began to run from that date and expired 45 days later, at the end of March 2009. The breach therefore occurred in or around early April. The fact that the Plaintiff did not act on the breach until 16 months later does not appear to amount to a waiver of that breach or to making time ‘at large’ because there was no indication either by act or word from the Plaintiff to the Defendant indicating that the Plaintiff was according the Defendant further time to procure the execution of the Definitive Agreements. Mere silence does not amount to waiver. It requires some encouragement from the Plaintiff, to the effect that the Defendant is given time indefinitely, before it can be concluded that time became ‘at large’. In other words, I do not accept the 49 contention put forward by the Defendant that by waiting for 16 months, the Plaintiff had waived the breach or placed time ‘at large’ such that the 45 day time limit ceased to be of any effect. The reality is that the breach occurred and nothing was done by the Plaintiff to acquiesce or extend time again. In these circumstances the defendant’s contention that the Plaintiff’s claim is premature and that the Defendant needs to be accorded reasonable notice again, is untenable.” (emphasis added) [41] What is more relevant and determinative is that s 18(3) of the Arbitration Act 2005 provides as follows: "(3) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence." [42] There can be no estoppel as against a statute. See the case of JMB Silverpark Sdn Bhd v Silverpark Sdn Bhd & Anor [2013] 9 MLJ 714 at p 726. In United Malayan Banking Corporation Sdn Bhd v Syarikat Perumahan Luas Sdn Bhd [1998] 3 MLJ 352b Edgar Joseph Jr J (as he then was) at p 356 held: "The defence of estoppel accordingly fails since there cannot be an estoppel to evade the plain provisions of a statute." Much earlier in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] 1 MLJ 49 Viscount Radcliffe, Privy Council, at 50 p 54 had affirmed that "... a party cannot set up estoppels in the face of a statute ...." Here the Plaintiff had raised the jurisdictional challenge at the first Preliminary Meeting and in the circumstance it was timeously and promptly raised. [43] The learned authors Sundra Rajoo & WSW Davidson in The Arbitration Act 2005 (Sweet & Maxwell Asia 2007) at p 89 have addressed this issue of whether there could be a waiver when a jurisdictional challenge was raised within the timeline stated under s 18(3) of the Arbitration Act 2005: “18.14 To ensure that objections are raised without delay section 18(3) and (5) establish two different time limits for raising the pleas. The plea that the arbitral tribunal has no jurisdiction shall be raised no later than the submission of the statement of defence. The Plaintiff may not invoke lack of jurisdiction after submitting its statement of defence unless the arbitral tribunal considers the delay justified and admits a later plea. With respect to a counterclaim, it is submitted that the relevant cut-off point would be the time at which the Defendant submits its reply. A plea that the arbitral tribunal had exceeded the scope of its authority has to be raised as soon as the matter which is alleged to exceed this authority is dealt with in the arbitral 51 proceedings. However, the applicant party must include in its application all of the grounds of jurisdictional challenge known to it (see Westland Helicopters Ltd v Sheikh Salah Al-Hejailan [2004] EWHC 1625 (Comm)). 18.15 The failure to raise a plea as to the arbitral tribunal exceeding the scope of its mandate would not necessarily preclude raising such a plea in setting aside or in recognition and enforcement proceedings as section 37(1)(a)(iv) and (v) of the act permits the setting aside of the award on these grounds. See commentary at paragraph 37.11 below. 18.16 Section 18(3) to (6) does not state what the consequences of failure to raise a plea of no jurisdiction are. However, section 7 which deals with waiver of the right to object, does not apply in this case because section 18 is not a provision from which the parties may derogate (section 7(a)).” (emphasis added) [44] This Court would agree with the above analysis. 52 Pronouncement [45] The Defendant was anxious that limitation might have set in bearing in mind s 30 of the Limitation Act 1953. This Court appreciates the anxieties assailing the Defendant. The Plaintiff's counsel was agreeable that limitation should not run during the period of reference to the S.O. Therefore this Court in ruling that the Arbitrator has no jurisdiction until compliance with clause 54 (a) and (b) PWD 203 Contract, would also hold that time does not run with respect to the Limitation Act 1953 from the date the application on this preliminary issue was made before the Arbitrator on 2 June 2015 until the expiry of the 2 tranches of 45 days referred to in clause 54(c) PWD Contract provided that the relevant notice under clause 54(a) is issued by the Claimant to the Plaintiff herein within 14 days from today. If need be, the Claimant/Defendant may have to resort to s 45 Arbitration Act 2005 with respect to applying to the High Court for an extension of time to commence the arbitration. [46] The Appeal was allowed with the directions and rulings as above stated. 53 [47] The Court also ordered costs of RM4,000.00 to be paid by the Defendant herein to the Plaintiff. Allocator to be paid before extraction of order of costs. Dated: 29 April 2016. - signed - Y.A. TUAN LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : T. Baskaran together with S.Suhanthi (Messrs Zul Rafique & Partners) For the Defendant : Mohd Irzan Iswatt Bin Mohd Noor (Messrs Haniff Khatri) Date of Decision : 15 March 2016

Tika 2.6.0

W-02(IM)(NCC)-1712-10/2014

PERAYU Tune Talk Sdn Bhd RESPONDEN Padda Gurtaj Singh

21/04/2016

YA DATUK NALLINI PATHMANATHANKorumYA DATO' ALIZATUL KHAIR BINTI OSMAN KHAIRUDDINYAA TAN SRI DATO' ABANG ISKANDAR BIN ABANG HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=36c38fd0-96a1-4f5f-9669-c9bb84bc938c&Inline=true

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.W-02(IM)(NCC)-1712-10/2014 BETWEEN TUNE TALK SDN. BHD. … APPELLANT AND PADDA GURTAJ SINGH … RESPONDENT [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Saman Pemula No: 24NCC(ARB)-6-02/2014 Dalam perkara Kuala Lumpur Regional Centre for Arbitration, Timbang Tara No. 66-2012 di antara Tune Talk Sdn Bhd dan Padda Gurtaj Singh yang diadakan di bawah Kaedah-Kaedah UNCITRAL Dan Dalam perkara Awad Muktamad bertarikh 25.9.2013 yang dibuat oleh Samuel Wong Chat Chor, Penimbangtara Tunggal Dan Dalam perkara Seksyen 38 Akta Timbang Tara 2005 Dan 2 Dalam perkara Aturan 69 Kaedah- kaedah Mahkamah 2012 Antara Padda Gurtaj Singh … Plaintif Dan Tune Talk Sdn Bhd … Defendan] CORUM: ALIZATUL KHAIR OSMAN KHAIRUDDIN, JCA ABANG ISKANDAR ABANG HASHIM, JCA NALLINI PATHMANATHAN, JCA JUDGMENT OF NALLINI PATHMANATHAN Introduction [1] This appeal concerns the construction of section 38 of the Arbitration Act 2005 (‘the Act’) read together with Order 69 rule 8 of the Rules of Court 2012 (‘the RC 2012’) in relation to the registration and enforcement of an arbitration award. On the somewhat unique facts of this case, the arbitral award in question made no positive order capable of enforcement, save as to costs, and that too remained to be determined as to quantum, at the material time of registration of the award. [2] The substance of the award instead refused the grant of several declarations sought at the behest of the appellant above, Tune Talk Sdn. Bhd. (‘the appellant’) who was the claimant in the 3 arbitration proceedings. The net result of the arbitration award was that the appellant, in its capacity as the claimant, failed in its bid to procure several declarations to the effect that Padda Gurtaj Singh (‘the respondent’) in the arbitration proceedings could no longer remain a director of the appellant, given several conditions that subsisted between the parties. [3] In the award the arbitral tribunal took the view that the terms of certain conditional consents by the shareholders of the appellant, were ineffectual against the respondent as they were not specifically agreed to, or signed by him. The award therefore had the net effect of failing to grant the declarations sought by the appellant in relation to the respondent’s designation as a director of the appellant. In short, there was no positive act or declaration granted under the terms of the final award, save for costs, which as was stated earlier, had not been quantified. [4] In these circumstances, the respondent under the arbitration proceedings sought recognition and enforcement of the orders made in the arbitration, notwithstanding that no positive declarations or relief had been granted in his favour. The respondent sought in effect the enforcement of the negative declarations, as it were, under section 38 of the Act. An ex-parte order of registration and enforcement was granted by the High Court on 4 March 2014 and served on the appellant on 25 March 2014. [5] The appellant sought to set aside the order maintaining, inter alia, that Order 69 rule 8(2)(b) of the RC 2012 had not been complied with, and that the respondent had failed to provide full and 4 frank disclosure. The thrust of the argument on behalf of the appellant was that Order 69 rule 8 of the RC 2012 read together with section 38 of the Act comprised the jurisdictional basis for the registration and enforcement of an award. To that extent it was contended for the appellant that Order 69 rule 8 of the RC 2012 is jurisdictional in nature, rather than purely procedural. As such compliance with that rule of court could not simply be ignored. For ease of reference, Order 69 rule 8 of the RC 2012 provides as follows:- ‘(1) An application for permission to enforce an award in the same manner as a judgment or an order may be made without notice in an arbitration claim originating summons. (2) The arbitration claim originating summons shall ---- (a) state the name and the usual or last known place of abode or business of the applicant and the respondent against who it is sought to enforce the award respectively; and (b) state either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.” (emphasis ours). [6] In essence it was the appellant’s case that in the registration and enforcement of an arbitral award, the registering High Court had to ensure compliance with the foregoing rule of court, which envisaged that:- (a) Registration was ultimately for the purposes of facilitating enforcement; 5 (b) There had to be some positive act or thing that required compliance; and (c) Where there was nothing that required compliance, the High Court could exercise its discretion to refuse registration, as there was nothing or no act to enforce. [7] For the respondent it was contended to the contrary, that it was section 38 of the Act which set out expressly the specific conditions that had to be met in order to register and enforce an arbitral award. There was no room, given the specific wording of section 38 of the Act for the court to exercise any form of discretion in determining whether or not to register an award. Again, for ease of reference section 38 of the Act provides as follows:- “38. Recognition and enforcement (1) On an application in writing to the High Court, an award made in respect of an arbitration where the seat of arbitration is in Malaysia or an award from a foreign State shall, subject to this section and section 39 be recognized as binding and be enforced by entry as a judgment in terms of the award or by action. (2) In an application under subsection (1) the applicant shall produce - -- (a) the duly authenticated original award or a duly certified copy of the award; and (b) the original arbitration agreement or a duly certified copy of the agreement…….” 6 [8] In other words, so long as the duly authenticated original or a duly certified copy of the award and the agreement to arbitrate are produced before the court, the court is constrained to register the award for enforcement. The court in effect, it was contended, executed a function as literally set out in the provisions of the Act and left no room for the court to exercise any form of discretion in the registration of an award. [9] As for Order 69 rule 8 of the RC 2012, it was contended for the respondent, that the same was redundant and need not be given effect. This was because of the mandatory nature of section 38 of the Act, which was entirely distinguishable from its equipollent provisions in other jurisdictions, which were permissive in nature. Distinctions were drawn between the legislation in England, Australia, Singapore and a variety of other jurisdictions. [10] It was further contended for the respondent that upon a perusal of section 39 of the Act, it was clear beyond argument that recognition or enforcement of an award could only be refused at the behest of the party against whom it was invoked in the specific instances set out in the situations envisaged in section 39(1)(a)(i) - (vii) and (b) of the Act. [11] Suffice to say that it is undisputed that the appellant does not invoke any of these situations under section 39 of the Act in order to set aside the registration of the award. Instead, the appellant maintains that it is entitled to set aside the registration of the award, primarily on the grounds that there is nothing to register or enforce under section 38 of the Act, because the award essentially refused 7 the declarations sought by the appellant, not the respondent. The latter was not the claimant or recipient of any form of relief, but was the successful party under the award. This in turn meant that there was nothing positive for the respondent to enforce for purposes of the registration of the judgment. [12] The argument for the necessity of complying with Order 69 rule 8 of the RC 2012, as set out above, was invoked on behalf of the appellant to substantiate the proposition that the said Order ought to be read harmoniously with sections 38 and 39 of the Act. Taken together they confer jurisdiction upon the court to register and enforce an arbitral award. To that extent it was contended that Order 69 rule 8, like Order 14 and Order 81 of the RC 2012, is jurisdictional. (see Lee Teng Siong v Lee Kheng Lian & Ors [2006] 4 CLJ 443). Issues for Determination in this Appeal [13] The primary issue for determination in this appeal is the interpretation to be accorded to sections 38 and 39 of the Act as well as Order 69 rule 8 of the RC 2012. More specifically the issue is whether compliance with Order 69 rule 8 of the RC 2012 as well as sections 38 and 39 of the Act is required, such that all three provisions are read harmoniously, or whether sections 38 and 39 of the Act are mandatory whereas compliance with Order 69 rule 8 of the RC 2012 is not necessary. [14] If section 38 of the Act is to be read harmoniously with Order 69 Rule 8(2)(b) of the RC 2012 (as well as section 39 of the Act), 8 this would then confer some degree of discretion on the court to examine an arbitral award with a view to ascertaining whether the award confers any act or thing capable of enforcement. [15] In other words the court would be entitled, under the permissive wording in Order 69 rule 8(2)(b) of the RC 2012 to exercise its discretion and consider whether or not there is any act or thing in the arbitral award that requires enforcement. [16] If there is no such positive act capable of enforcement then it would be open to the court in the exercise of this discretion to refuse to register the award on the grounds that there is nothing capable of enforcement, thereby rendering registration a futile or useless act. The binding nature of the arbitral award as between the parties would however remain. [17] If on the other hand Order 69 rule 8(2)(b) of the RC 2012 is construed as a mere adjectival requirement or proviso which does not require compliance or is simply viewed as redundant, then the converse would follow, namely that the High Court would be constrained to register an award notwithstanding its content or nature, so long simply as the requirements of section 38 of the Act were met. Background Facts [18] As stated in the arbitral award, the dispute is between the appellant and the respondent who is a shareholder and director of the company. It arose over an alleged breach of the shareholder 9 agreement dated 23 December 2008 (‘the shareholders’ agreement) and subsequent conditional consents said to have been agreed between the parties. The respondent is a minority shareholder and director of the appellant. [19] Under the shareholders’ agreement the respondent’s right to remain as a director of the appellant was conditional upon, inter alia, his employment with the company. [20] Under clause 12.2 (a) of the shareholders’ agreement, the respondent had undertaken with the appellant not to “carry on or be engaged or interested in any business in competition with the activities and operations carried on by the company in South East Asia….”. Any breach of this clause would result, pursuant to clause 10.2, to a compulsory transfer of all the respondent’s shares. [21] The respondent resigned from the appellant in 2009. The other shareholders of the appellant granted the respondent an exemption from having to comply with clause 12.2(a) of the agreement on condition that the respondent remains a shareholder. But they imposed another condition, namely that the respondent had to vacate his seat of director if he is associated “with another company in the mobile telecommunication industry”. This condition which was imposed vide a series of documents referred to as the consent documents, was signed by all the shareholders and all the directors of the appellant with the exception of the respondent. He had refused and took no steps to sign the consent documents. 10 [22] Then on 1 January 2010, the respondent joined a company known as Spice Bulls in Singapore as its president of mergers and acquisitions, without notifying the appellant. A show cause letter was issued to the respondent where, inter alia, the appellant through its chief executive officer stated that it had come to their attention that the respondent was providing services to “Spice Global” and his directorship could be revoked if he was found providing services to another telecommunications company. The respondent maintained that Spice Global was not a mobile telecommunications provider. However, the appellant did not accept this contention. [23] A dispute arose and this led to the commencement of arbitration pursuant to clause 16 of the shareholder’s agreement, which contained an arbitration clause specifying the Regional Center for Arbitration Kuala Lumpur and applying UNCITRAL Rules. [24] In the arbitration proceedings, the sole claim was by the appellant and this was dismissed. The arbitral tribunal took the view that the terms of the conditional consents by the shareholders were ineffectual against the respondent as they were not specifically agreed to, or signed off by him. [25] On 25 September 2013, the appellant’s claim was dismissed with no positive orders made save for costs, which was to be assessed by the arbitral tribunal in the future. [26] The appellant then passed a directors’ circular resolution in November 2013 to convene an Extraordinary General Meeting (‘EGM’) for shareholders to consider passing a resolution to formally 11 revoke the earlier consents. Consequently, they would then have to consider and vote on whether to remove the respondent as a director of the appellant. If the respondent did not have effective consent, then the original provisions of the shareholders’ agreement would apply. [27] On 7 November 2013 the appellant through its solicitors then requested that the respondent voluntarily resign from the board of directors. On 12 November 2013, the respondent rejected the request. [28] On 4 February 2014, the respondent filed an ex-parte application under section 38 of the Act as well as Order 69 rule 8 of the RC 2012 for recognition and enforcement of the award by entry as a judgment of the High Court. The application expressly recognized that the award made no positive orders and the only matter in relation to which enforcement might be available was that of costs, which had yet to be assessed. In short, there was nothing to specifically enforce under the arbitral award. [29] A month later on 4 March 2014, the respondent obtained the ex-parte order. [30] On 25 March 2014, the directors of the appellant passed a further directors’ circular resolution to convene an EGM for its shareholders to consider revoking earlier consents and whether or not to remove the respondent as a director of the appellant. The circular resolution was duly passed and notice of an EGM was given for 9 April 2014 to all relevant parties including the respondent. At 12 this time, the ex-parte order for registration of the award as a judgment was served on the appellant. [31] The notice of the EGM on 9 April 2014 prompted the respondent to initiate separate proceedings seeking relief under section 181 of the Companies Act 1965. [32] On 7 April 2014 the appellant applied to set aside the ex-parte order for registration of the arbitral award dated 4 March 2014. One of the grounds of the application was that the arbitral tribunal did not make any positive orders and there had not been compliance with Order 69 rule 8(2)(b) of the RC 2012. Additionally, it was maintained that the respondent had failed in his duty to provide full and frank disclosure of the fact that the sole positive order made was in relation to costs, which had yet to be assessed by the tribunal. [33] On 9 April 2014 the EGM was adjourned to 16 April 2014. The respondent did not appear on the adjourned date and was duly removed as a director of the appellant. [34] The appellant’s application to set aside the registration of the arbitral award was heard in July 2014 and dismissed in September 2014. The Decision of the High Court [35] The learned High Court judge dismissed the appellant’s application to set aside the registration and enforcement of the 13 arbitral award. The thrust of Her Ladyship’s reasoning for doing so, which we have adopted from the submissions of learned counsel for the appellant’s, is as follows:- (i) The respondent had in fact complied with his duty of full and frank disclosure by stating that the arbitral award did not make a positive order against the appellant, save in respect of costs; (ii) Order 69 rule 8(2)(b) of the RC 2012 comprised a procedural requirement which had to be read together with section 38 of the Act. It was sufficient that the respondent had complied with section 38 of the Act; (iii) There is no prerequisite for a positive order before a court can grant recognition and enforcement of an arbitral award. An order that is declaratory may therefore be recognized and enforced; and (iv) Recognition and enforcement of an arbitral award may be refused only under one of the grounds set out in section 39 of the Act. Submissions of Counsel in the Court of Appeal [36] For the appellant, the appellant, it was contended by learned counsel Mr. Logan Sabapathy that the learned High Court Judge had erred in her conclusions by reason of the following matters. 14 [37] There had been insufficient appreciation of the purpose of Order 69 rule 8(2)(b) of the RC 2012. It was not merely procedural. It had moreover to be read in harmony with section 38 of the Act. [38] As stated at the outset, it was contended that Order 69 rule 8(b) like Order 14 and Order 81 of the RC 2012 is jurisdictional in nature, rather than purely procedural. As such, it had to be read in conjunction with section 38 of the Act in a situation where it was sought to recognize and enforce an arbitral award. [39] There had been a failure to appreciate that a positive order is a prerequisite for recognition and enforcement. As stated by the Federal Court in Takako Sakao v Ng Pek Yuen & Anor (No. 3) [2010] 2 MLJ 141 where a declaratory judgment was granted, no positive order ensued. The weakness of the remedy of declaration lies in the want of its enforceability. A declaration cannot be enforced by execution. In like manner in the instant case, there was a refusal to grant certain declarations at the behest of the appellant. So there is nothing to execute on the part of the winning party, the respondent (see also West Tankers Inc v Allianz SpA and another [2012] EWCA Civ 27 (see IA(P) 1, Tab 7, pages 56- 57 where the arbitral award took the form of a negative declaration.) In short, the appellant maintained that the learned High court Judge erred in holding that a negative declaratory award could be enforced. It was pointed out that there had been no consideration as to the utility or benefit to be derived from the enforcement of the award. The respondent had stated only that the appellant’s intention to remove him from the board of directors was an example of non-compliance with the award. However, this was refuted by the appellant on the 15 grounds that the award was open to interpretation and could not comprise an example of non-compliance. [40] The fact that the appellant was taking new steps to consider the removal of the respondent as a director was in relation to events arising subsequent to the arbitral award, and in respect of which therefore, there was no bar. The arbitral award, which was binding between the parties to the dispute, related specifically to whether the respondent was party to, or had signed off on the conditional consents. As the respondent maintained that he had not, the conditional consents were not binding on him which allowed the shareholders to then consider whether the original terms of the shareholders’ agreement required that he resign or be removed as a director, given his having left the employment of the appellant and his having joined Spice Global. [41] The proper approach to be adopted in dealing with applications for registration and enforcement is by meeting the requirements of section 38 of the Act read together with Order 69 rule 8(2)(b) of the RC 2012, rather than solely meeting the requirements of section 38 of the Act. Once the applicant has crossed this threshold only does the second stage arise, namely whether any of the situations in section 39 of the Act apply (see Agrovenus LLP v Pacific Inter-Link Sdn Bhd. and another appeal [2014] 3 MLJ 648 at paragraphs 13 – 15). This it is contended the learned High Court Judge failed to do without giving due consideration as to whether the appellant had satisfied the requirements of the first stage. 16 [42] The ex-parte application for registration and enforcement of the award imposed a duty on the respondent to make full and frank disclosure of all relevant material. It was contended that the respondent had failed to state expressly that there was a dispute over the interpretation of the award, which meant that he was aware of the possibility that the award recognized that the variation of the shareholders’ agreement vide the consents was not operative or effective and he was therefore not entitled to remain on the board in accordance with the original provisions of the shareholders’ agreement. The respondent also failed to disclose the existence of the director’s resolution whereby the appellant was proposing to put the question of his removal to its shareholders and that it was entitled to do so. [43] For the respondent on the other hand, learned counsel Ms. Shamala Balasundram contended vigorously that sections 38 and 39 of the Act are exhaustive. There was no room for any other substantive requirements to be satisfied for the recognition and enforcement of an arbitration award. Learned counsel for the respondent further maintained that Order 69 rule 8(2)(b) of the RC 2012 is a procedural requirement and not a substantive requirement. Therefore it followed that any non-compliance with the provision in question would not render an application to recognize and enforce an award fatal. Further and alternatively, learned counsel maintained that there was compliance as far as was possible with the procedural requirements as well as full and frank disclosure. 17 [44] Thirdly, it was submitted that any common law principle asserted by the appellant namely that an arbitration award in the form of a negative declaration which has no material benefit to the winning party cannot be enforced for example, cannot override clear statutory provisions such as sections 38 and 39 of the Act. Any such decision by this Court, it was contended, would lead to the weakening and diminishment of arbitration awards and their utility, contrary to the intent of the Act. [45] It was further pointed out that the purpose of the Act ought to be ascertained in interpreting sections 38 and 39. In this context this involved an examination of the words in the statutes to ascertain their meaning. If the words are unambiguous, plain and clear, they had to be given their ordinary and actual meaning and if the words are ambiguous a purposive approach ought to be applied. [46] Applying the foregoing it was contended by learned counsel that the exhaustive provisions for recognition and enforcement are to be found in section 38 of the Act. The use of the word “shall” denotes a mandatory requirement that must be adhered to. [47] More importantly it was pointed out that the word “shall” in section 38 of the Act means that there is no room for the exercise of discretionary power by the High Court provided the two substantive requirements in section 38 of the Act are fulfilled, and there are no grounds for refusal of recognition and enforcement under section 39 of the Act. There is no ‘general ground’, which would allow the High Court room to exercise its discretion to set aside an arbitration award. While learned counsel did not see this 18 as ‘rubber stamping’ as contended by learned counsel for the appellant, it was submitted that in registering and enforcing the award, the High Court would be applying the provisions of the Act as drafted and mandated by Parliament. In any event, the court did have a significant role to play in that it could refuse recognition and enforcement under section 39 of the Act. [48] This Court was also asked to consider the implications of invoking Order 69 rule 8(2)(b) of the RC 2012 as a substantive requirement to the registration and enforcement of arbitral awards. If this Order is construed as a necessary pre-requisite to the registration of an award then, it was submitted, arbitration awards must not contain anything that is merely declaratory or amounts to a negative declaration. In this context, all awards had to set out positive acts requiring compliance in order for them to be recognized and enforced by the Malaysian courts. Thus if a claim is dismissed in arbitration the successful party cannot seek the protection of the Malaysian courts. [49] It would also follow that the successful party to arbitration must wait until there has been non-compliance with the award before the award can be recognized and enforced. [50] Learned counsel also undertook a comprehensive review of legislation in other Commonwealth countries, pointing out that while registration and enforcement is permissive in other jurisdictions, it is mandatory in this jurisdiction. 19 Decision of this Court [51] As pointed out earlier the primary issues that arise for consideration before this Court on appeal are as follows:- (i) For the purposes of registration and enforcement of an arbitral award, whether compliance with Order 69 rule 8 of the RC 2012 as well as sections 38 and 39 of the Act is required, such that all three provisions are read harmoniously, or whether section 38 and 39 of the Act are mandatory and exhaustive, whereas compliance with Order 69 rule 8 of the RC 2012 is not necessary. (ii) Secondly, in the somewhat unusual situation where an arbitral award does not grant the successful party any relief capable of enforcement, is it tenable for the registering court to exercise its discretion to refuse summary registration and enforcement because the court finds it unnecessary; or alternatively (iii) Whether the registering court is mandatorily bound to register the arbitral award provided the stipulations or conditions in section 38 of the Act are met. Construction of section 38 of the Act and Order 69 rule 8(2)(b) of the Rules of Court 2012 [52] In determining the foregoing, it is necessary to consider whether Order 69 rule 8(2)(b) of the RC 2012 can be read 20 harmoniously with section 38 of the Act or whether the said order is simply a procedural requirement which can be ignored? [53] In R v O’Brien and another [1985] 1 All ER 971 at 975 and Raymond v Honey [1983] 1 AC 1 at 12 – 13 it was held by the High Court and House of Lords respectively (in the United Kingdom) that where subsidiary legislation is ambiguous, one possible effect being ultra vires and the other intra vires, preference should be given to the latter construction. [54] Moreover section 17A of the Interpretation Acts 1948 and 1967 was applied by the Federal Court in Palm Oil Research and Development Board Malaysia 7 Anor v Premium Vegetable Oils Sdn Bhd & Anor appeal [2005] 3 MLJ 97 as follows:- “…When construing a taxing or other statute, the sole function of the court is to discover the true intention of Parliament. In that process the court is under a duty to adopt an approach that produces neither injustice nor absurdity: in other words an approach that promotes the purpose or object underlying the particular statute albeit that such purpose or object is not expressly set out therein……” And in the Indian case of Maharashtra SBOS & HS Education v Paritosh AIR 1984 SC 1543 it was held as follows:- “The provisions contained in a statutory enactment or in rules/regulations framed thereunder have to be so construed as to be in harmony with each other…….” 21 [55] As such the preferred approach to be adopted, if possible, is that Order 69 rule 8(2)(b) of the RC 2012 be read harmoniously with sections 38 and 39 of the Act, rather than the rule of court being construed as redundant. Any such construction however should support and promote the purpose of the statute, namely the Arbitration Act 2005. [56] Order 69 rule 8(2)(b) of the RC 2012 when read together with section 38 of the Act discloses/makes clear the following:- (a) The purpose of the Act as set out in the preamble is to recognize and enforce arbitral awards; (b) The court cannot promote the purpose of the Act without knowledge of the non-compliance against which recognition and enforcement is needed; (c) Order 69 rule 8(2)(b) of the RC 2012 comes into play by requiring that non-compliance be pleaded; (d) Order 69 rule 8(2)(b) of the RC 2012 requires such non-compliance be pleaded in order that enforcement may ensue to protect the successful party from the other party’s refusal or threatened refusal to comply with the terms of the arbitral award. [57] There is a distinction between ‘recognition’ and ‘enforcement’ of an award. An award may be recognized without being enforced. Where it is enforced, however, it must necessarily have been 22 registered. Therefore, the true distinction is between registration and registration and enforcement (see Redfern and Hunter on International Arbitration (5th Edition, OUP 2009) at paragraph 11.20.) [58] Having appreciated that distinction, it follows that Order 69 rule 8(2)(b) of the RC 2012 serves a useful purpose in the registration and enforcement of an arbitral award and is not merely adjectival in nature. It can be read harmoniously with section 38 of the Act as it contemplates a situation whereby the court upon being asked to register an award:- (i) Firstly ascertains that there is some positive act or thing which must be performed within the substance of the arbitral award; (ii) If that is the case, whether there has been non- compliance with the award or a part of the award as of the date of the application; (iii) Where there is some positive act or thing that requires enforcement, then in accordance with section 38 of the Act and Order 69 rule 8(2)(b) of the RC 2012 read together the court can proceed to register and enforce the judgment. (iv) Where there is nothing to be complied with, as is the somewhat unusual case here, as in the form of a negative declaration or a failure to grant the claimant the 23 relief sought, the court may exercise its discretion to refuse summary enforcement because the court concludes that it is unnecessary. In short, it may in the exercise of its jurisdiction conclude that summary enforcement is unwarranted as there is nothing to enforce. In so doing, the court may consider whether there is any utility or benefit in making the order of recognition and enforcement. [59] To my mind such a construction of section 38 of the Act together with Order 69 rule 8(2)(b) of the RC 2012 makes for a harmonious construction of the Act as well as the Rules of Court 2012. The fact that Order 69 rule 8(2)(b) was not removed from the Rules of Court 2012, repealed nor varied suggests that it remains relevant for the purposes of construing the relevant statutory provisions in relation to the registration and enforcement of an arbitral award. This militates against simply ignoring the rule altogether. [60] The distinction between being jurisdictional in nature rather than purely adjectival is less important than the ability to read the provisions harmoniously. [61] Further and in any event, it appears that the grant of the summary registration and enforcement procedures is not an administrative rubber stamping exercise. In West Tankers Inc v Allianz SpA and another [2012] EWCA Civ 27 the English Court of Appeal when dealing with its admittedly permissive rather than 24 mandatory provisions relating to leave to register and enforce an award held, inter alia as follows:- “ The purpose of s 66(1) and (2)1 is to provide a means by which the victorious party in an arbitration can obtain the material benefit of the award in his favour other than by suing on it. Where the award is in the nature of a declaration and there is no appreciable risk of the losing party obtaining an inconsistent judgment in a member state which he may try and enforce within the jurisdiction, leave will not in general stand to be granted because the victorious party will not thereby obtain any benefit which he does not already have by virtue of the award per se. In short, in such a case, the grant of leave will not facilitate the realization of the benefit of the award. Where, however, as here the victorious party’s objective in obtaining an order under s 66(1) and (2) is to establish the primacy of a declaratory award over an inconsistent judgment, the court will have jurisdiction to make a s 66 order because to do so will be to make a positive contribution to the securing of the material benefit of the award.” (emphasis ours). [62] In other words, where the arbitral award is in the form of a declaration such that it makes no positive order that is capable of enforcement, the registering court, in the exercise of its jurisdiction, can determine whether there is any utility in registering the award as there is nothing to enforce. This follows from Order 69 rule 8(2)(b) of the RC 2012.The court is not bound to simply mandatorily register it because section 38 of the Act has been fulfilled. 1 The provisions of the English Arbitration Act 1996 which contains permissive provisions expressly allowing for the recognition and enforcement of an award by leave of court. 25 [63] It is to be noted that section 66 in the United Kingdom statute does differ in its wording from the Malaysian equivalent. The former is permissive in nature while the provision in our statute in section 38 of the Act uses the word ‘shall’. Notwithstanding the seemingly mandatory tenor of the Malaysian statute, the fact of the subsistence of Order 69 rule 8(2)(b) of the RC 2012, which is to be read harmoniously with section 38 of the Act suggests that the court is entitled to:- (i) peruse and consider the application to ascertain if there has been non-compliance with the substance of the award; (ii) exercise its discretion to refuse to register the award when there is no material benefit to be gleaned from such registration per se, particularly as the arbitral award is binding on the parties to the dispute notwithstanding non- registration of the same. [64] Put another way, the registering court may make a judicial determination whether it is appropriate to register a judgment in terms of the award. Where, as is the rare case here, there is nothing to be enforced or capable of enforcement, the court is not precluded from determining the validity or requirement for registration. In the West Tankers case (above) registration was granted but that was primarily because there was an appreciable risk of the losing party obtaining an inconsistent judgment in a member state, which the losing party might try to enforce within the jurisdiction. 26 [65] A similar sentiment was expressed in the Australian case of Tridon Australia Pty Ltd & Anor v ACD Tridon Inc (Incorporated in Ontario) [2004] NSWCA 146. Admittedly there too the statute, namely section 33 of their Commercial Arbitration Act 1984 is permissive in nature. However the reasoning for the grant of recognition namely for the purposes of enforcement, comes through. In other words, where there is no utility or material benefit for the registration and enforcement of an arbitral award the court may refuse or decline to do so. This, inter alia, is what was said in that case at paragraphs 11 - 12:- “…Enforcement is a plain word, and means something quite different from a restatement of the effect of the award in the form of a judgment. The summary procedure provided by s.33 of the Act is a procedure with a purpose, the purpose of enabling the victorious party in an arbitration to obtain the material benefit of the award in its favour in an easier manner than having to sue on the award. There has been nothing put forward in this case to suggest any occasion for enforcement of the declarations made in the interim award. They are binding on the parties and bind them for the balance of the arbitration and beyond that. I agree with Smart AJ’s view that there is no utility in making the order sought, but for the perhaps more fundamental reason that there is just no question of enforcement yet arising. In the absence of any question of enforcement arising, it would not be appropriate to grant leave to enforce the award.” [66] Although this provision deals solely with enforcement rather than registration and enforcement the rationale for the grant of leave to enforce, like the provisions for registration and enforcement here, particularly vide Order 69 rule 8(2)(b) of the RC 2012, envisage 27 that there is non-compliance in respect of which enforcement is necessary. Where that primary element is missing the question that comes to the fore is why the necessity for enforcement, given that the arbitral award is binding on the parties. In so ascertaining the materiality or benefit to be procured from the registration and enforcement of a judgment under section 38 of the Act, the court does act judicially and not ‘robotically’ (see IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717 where it was stated at para 141:- “To act robotically is not to act judicially”). Declaratory Award [67] It is settled law that a declaratory judgment or award is not capable of execution or enforcement. As the Federal Court put it in Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No. 3) (above):- “There is an added point in so far as staying the effect of the principal judgment is concerned. All that judgment does, inter alia, is to hold that the appellant is a beneficiary under a constructive trust of which the second respondent is a trustee. In short it declares the existence of a constructive trust. It makes no positive order. The weakness of the remedy of declaration lies in the want of its enforceability. A declaration cannot be enforced by execution. In Prakash Chand v SS Grewal (1975) Cri LJ 679, the court held as follows:- “ A declaratory decree cannot be executed as it only declares the rights of the decree-holder qua the judgement –debtor, and does not, in terms, direct the judgement-debtor to do or to refrain from 28 doing any particular act or things. Since there is no command issued to the judgement-debtor to obey, the civil process cannot be issued for the compliance of that mandate or command.” In other words, there can be no committal or other execution process issued to enforce a declaration.” [68] In the instant case as has been stated above, the arbitral award refused the declarations sought by the appellant to the effect that the respondent was in breach of his obligations under the shareholders’ agreement. It amounted to a negative declaration in effect in so far as the respondent was concerned. The respondent sought no positive relief or act vides the arbitral process. Accordingly, no positive act or thing was ordered under the award to be carried out by the appellant vis a vis the respondent. In such a case what is there for the respondent to enforce? The answer must be a compelling ‘nothing’. If indeed there is nothing to enforce, then the question of non-compliance does not arise, as there is nothing positive to comply with. [69] Order 69 rule 8(2)(b) of the RC 2012 clearly envisages that registration is for the purpose of ensuring enforcement. So does section 38 of the Act, which speaks of the recognition and enforcement of awards. If there is no material benefit or utility to be procured from the registration of a judgment, because there is nothing or no positive act or thing to enforce, then the court may in the exercise of its jurisdiction under these sections decline to register the award. This is because the registration of an award which cannot be enforced and where there has been no non- 29 compliance, serves no purpose. The award remains binding as between the parties and can be set up as a defence in any ensuing proceedings where it is sought to re-litigate that which has been determined by the arbitral award. Res judicata would apply to preclude such a result. [70] It has been argued for the respondent that there has been compliance as far as possible with Order 69 rule 8(2)(b) of the RC 2012 given the nature of the order. The learned High Court judge agreed with this submission. However we are unable to concur with the learned High Court judge or respondent in respect of this submission. If there has been no non-compliance stipulated or stated, because there was nothing to comply with, it cannot follow that Order 69 rule 8(2)(b) of the RC 2012 has in fact been complied with. There must be a real and not an illusory or perfunctory statement seeking to comply with the said order. In the instant case there was no compliance with Order 69 rule 8(2)(b) of the RC 2012 because there was no order handed down by the arbitral tribunal which required compliance. [71] It has further been argued for the respondent that non- compliance with the substance of the arbitral award has been made out by the ensuing acts of the appellant in trying to remove the respondent from the board of directors, subsequent to the handing down of the final award. This has been characterized as an attempt to circumvent the award. However it is apparent that the steps taken after the award to hold an EGM, related to matters arising subsequent to, or as a result of the outcome of the arbitration. The shareholders proceeded to ascertain whether in light of the fact that 30 the conditional consents were not binding on the respondent as pronounced by the arbitral tribunal, the original provisions of the shareholders’ agreement came into play. The appellant was entitled to take these steps given the fact that the original provisions of the shareholders’ agreement remained valid. Therefore in deciding to hold an EGM to ascertain whether the respondent’s position as a director stood effectively revoked, there was no non-compliance with the arbitral award. [72] The shareholders of the appellant were exercising their rights, available to them as a consequence of the findings of the award. The appellant was not going against the terms of the award or failing to comply with it. It was taking further steps in view of the findings of the arbitral tribunal. Therefore the contention that there was a ‘subsequent’ non-compliance by the appellant is without merit. In any event, it is non-compliance at the time of the application to register and enforce the award that is relevant. [73] Having reviewed the entirety of the comprehensive submissions filed by both learned counsel for the appellant as well as the respondent, I am of the view that:- (a) The learned High Court judge erred in construing Order 69 rule 8(2)(b) of the RC 2012 together with section 38 of the Act and determining that it was entirely procedural and to that extent redundant for the purposes of construing section 38 of the Act. On the contrary, I concluded that the said Order may be read harmoniously with section 38 of the Act whereby the 31 registering court for an award has the jurisdiction to examine the substance of the award to ascertain that there is non-compliance with the same, necessitating enforcement or that there is some other material utility or benefit to be procured from the exercise of registering and enforcing an arbitral award. (b) The learned High Court judge further erred in failing to appreciate that a positive order is a prerequisite for the purposes of recognition and enforcement; (c) The approach to an application for recognition and enforcement requires the court to appreciate the content of the award and ascertain that there has been non- compliance necessitating registration and enforcement. In so doing, the court is not merely a ‘rubber stamp’ (notwithstanding section 8 of the Act) but is exercising a judicial function; (d) It followed therefore that the learned High Court judge misdirected herself by concluding that registration and enforcement was met solely by complying with section 38 alone of the Act. Her Ladyship failed to consider that pursuant to Order 69 rule 8(2)(b) of the RC 2012 the court was entitled to consider the issue of non- compliance, which did not arise by reason of the declaratory award handed down by the tribunal. Consequently the learned High Court judge erroneously went on to consider whether any of the provisions in 32 section 39 of the Act came into play without ascertaining whether the first stage of compliance under section 38 of the Act read together with Order 69 Rule 8(2)(b) of the RC 2012 had been satisfied. [74] The appeal is therefore allowed with costs and the ex-parte order set aside. Nallini Pathmanathan Judge Court of Appeal Malaysia Dated: 21st April 2016 For the Appellant: Logan Sabapathy Carmelia Cheong Tetuan Logan Sabapathy & Co Peguambela & Peguamcara Suite 2002, Tingkat 20 Wisma Hamzah-KH No. 1 Leboh Ampang 50100 Kuala Lumpur For the Respondent: Shamala Balasundram Tan Hui Xian Aerie Rahman Tetuan Chooi & Company Peguambela & Peguamcara Level 5, Menara BRDB 285 Jalan Maarof Bukit Bandaraya 59000 Kuala Lumpur Signed

Tika 2.6.0

24C-40-11/2015 & 24C-41-12/2015

PLAINTIF 1. ) Econpile (M) Sdn Bhd 2. ) IRDK Ventures Sdn Bhd DEFENDAN 1. ) IRDK Ventures Sdn Bhd 2. ) Econpile (M) Sdn Bhd

06/04/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=b415d7a0-6af4-4e6d-b89b-045a9c0292a7&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: 24C-40-11/2015 In the matter of an Agreement and Terms of PAM Contract 2006 between IRDK Ventures Sdn Bhd and Econpile (M) Sdn Bhd dated 12.11.2014 And In the matter of Section 28(1), (2) and (3) Construction Industry Payment and Adjudication Act 2012 And In matter of Order 7 and Order 92 Rule 4 Rules of Court 2012 BETWEEN ECONPILE (M) SDN BHD (COMPANY NO: 164265-P) ... PLAINTIFF AND IRDK VENTURES SDN BHD (COMPANY NO: 549318-U) … DEFENDANT (heard together with) 2 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: 24C-41-12/2015 In the matter of an Agreement and Terms of PAM Contract 2006 between IRDK Ventures Sdn Bhd and Econpile (M) Sdn Bhd dated 12.11.2014 And In the matter of an adjudication between Econpile (M) Sdn Bhd and IRDK Ventures Sdn Bhd and the adjudication decision dated 30.10.2015 by Adjudicator Ir Katheresan Murugan And In the matter of section 12, 15, 16, 19, 27 and 28 Construction Industry Payment and Adjudication Act 2012 And In the matter of Order 7 rules of Court 2012 BETWEEN IRDK VENTURES SDN BHD (COMPANY NO: 549318-U) ... PLAINTIFF AND 3 ECONPILE (M) SDN BHD ... DEFENDANT (COMPANY NO: 164265-P) THE JUDGMENT OF YA TUAN LEE SWEE SENG [1] As is not uncommon, an application by a successful claimant in an Adjudication Decision to enforce the decision would be met by the unsuccessful respondent applying to set aside the Adjudication Decision. Such was the case here where the respondent raised some interesting grounds in setting aside the Adjudication Decision made under the Construction Industry Payment and Adjudication Act 2012 ("CIPAA"). It was argued that the Adjudicator was late by 3 days in making his Adjudication Decision and as such the whole Decision is void. It does not matter that the payment for the Goods and Services Tax ("GST") came on the last day set for the making of the Adjudication Decision for the respondent contended that the Adjudicator had no authority to withhold the release of the Decision on account of the GST of the Kuala Lumpur Regional Centre for Arbitration ("KLRCA") not having been paid before the Decision was made. 4 [2] An equally interesting challenge to the Adjudication Decision was that the contract having been terminated by the respondent, it shall not be bound to make further payment to the claimant until a final account is determined upon completion of the works. It was initially argued as a jurisdictional point but later its learned counsel was prepared to merely contend that as there was no cause of action that had arisen on the payment claim in question, the Adjudicator should have dismissed the payment claim. [3] There was also the submission made that there was a breach of natural justice when the Adjudicator granted interest when there was no submission made on it by the parties though the claimant had claimed for it. Problem [4] On 20 May 2015, the claimant served a Payment Claim on the respondent for a sum of RM4,035,381.87 in accordance with section 5 of CIPAA. The claimant claimed for the unpaid works done under the Letter of Award dated 8 October 2014 incorporating scope of works and conditions of appointment and in accordance with section 36(4) CIPAA. [5] The breakdown is as follows: 5 (a) Payment Certificate No 5 R1 dated 24 March 2015 amounting to RM1,805,866.65 Payment Certificate No. 5 R1 dated 24 March 2015 was issued to claimant by Architect for works done with the amount of RM1,805,866.65. The due date for the payment of certified amount purported was 23 April 2015. The claimant alleged that they had not received any payment for the certified amount pursuant to Item 5 of the Letter of Award and/or section 36(4) CIPA Act 2012. The Interim Certificate No. 5 R1 was issued for works done comprising of general conditions and preliminaries, bored piles, pile caps and column stumps construction works. (b) Progress Claim No 6 dated 31 March 2015 amounting to RM2,229,515.22 Progress Claim No 6 dated 31 March 2015 was submitted by claimant for works done to Architect with the amount of RM2,229,515.22. The due date for the payment of progress claim was to be 30 April 2015. However, the claimant alleged that they have not received any payment for the claimed amount pursuant to Item 5 of the Letter of Award and/or 6 section 36(4) CIPAA. The Progress Claim No 6 was prepared for the same nature of works done. [6] Pursuant to s 6 CIPAA, the respondent submitted their Payment Response dated 25 May 2015, refuting the Payment Claims. With respect to Payment Claim No. 5 R1 the respondent reasoned that as the claimant's employment had been terminated by the Architect in accordance with Clause 25.0 of PAM Building Contract 2006 vide their letter dated 17 April 2015, pursuant to Clause 25.4(d), the respondent is not bound to make any further payment including payment which have been certified but not yet paid. With respect to Progress Claim No. 6, the respondent refuted the Payment Claim since payment recommendation from Architect is still pending due to respondent’s non-compliance to make the necessary submission to Architect for his proper assessment, valuation and recommendation. [7] Following the procedure laid down in CIPAA, the Notice of Adjudication dated 3 June 2015 was served on the respondent referring the above two Payment Claims for adjudication. The claimant filed its Adjudication Claim and the respondent filed its Adjudication Response disputing the whole of the Adjudication Claim. The claimant stated in its Notice of Adjudication the reliefs and remedies as summarised below: 7 (a) Payments amounting to RM4,035,381.87 being payment for works done due to the claimant under the contract; (b) Interest on the unpaid amounts at the rate of 5% per month on a daily rest from 24 March 2015 from the date each payment was due to the date full payment is received, based on the usual Court rate allowed by the Courts; (c) All costs incurred by the claimant in referring to the dispute to adjudication, including but not limited to solicitors’ cost, the registration and administrative fee of KLRCA, and the Adjudicator’s fee. [8] The Adjudicator in its decision dated 30 October 2015, allowed the claimant's claim under Payment Certificate No. 5 R1 with an amount of RM1,805,866.65. He however dismissed the Payment Claim under Progress Claim No.6 as the Payment Claim was held to be premature. The Adjudicator further decided that the Adjudicated Sum shall be due to the claimant on 16 November 2015. He also awarded interest at the simple interest of 4.2% per annum on the Adjudicated Sum from 23 April 2015 until payment. Pursuant to s 18(1) CIPAA, the cost shall follow the event and so the Adjudicator decided that the respondent shall bear 100% of the costs of the adjudication proceedings which included the sum of RM43,053.06 being the Adjudicator's fees, RM9,127.26 being 8 KLRCA's fees (including GST) and RM55,500.00 being party and party costs. Prayers [9] The two applications that came before this Court are as follows: (a) OS No. 24C-40-11/2015 (“the Enforcement Application”) where Econpile (M) Sdn Bhd (“Econpile”), as the claimant in the adjudication proceedings, seeks to enforce the Adjudicator’s Decision dated 30 October 2015 against IRDK Ventures Sdn Bhd (“IRDK”) as respondent in the adjudication proceedings; (b) OS No. 24C-41-12/2015 (“the Setting Aside Application”) where IRDK seeks to set aside the Adjudicator’s Decision. [10] By consent of the parties and for good reason the two applications were heard together with the Setting Aside Application being heard first as it was conceded that if the Setting Aside Application is dismissed by the Court, then invariably the Enforcement Application would succeed, as one is the flip side of the other. Conversely if the Setting Aside Application is allowed the Court would invariably have to dismiss the Enforcement Application. 9 [11] The parties shall be referred to as claimant and respondent as they were in the adjudication proceedings. Principles Whether an Adjudication Decision delivered within time but released to the parties only after the payment of GST for KLRCA's fees is void in the circumstances of the case [12] As the parties could not agree to the Adjudicator, it was left to the Adjudicating Authority under CIPAA, which is the KLRCA, to appoint the Adjudicator. That appointment of one Ir Katheresan Murugan was duly made on 25 June 2015 under s 23(1) CIPAA. The Adjudicator then wrote to the parties in Form 6 of his appointment on 9 July 2015. That was for his acceptance of the appointment. He also indicated as required under s 23(2) the terms of his appointment. Paragraph 1 of Form 6 reads as follows: "I, Ir Katheresan Murugan, hereby accept the appointment to act as adjudicator as per the KLRCA's standard terms of appointment and fees for the services of an adjudicator in force as of the date of this letter. My fees and expenses are as contained in the Schedule (Regulation 6) KLRCA's Standard Fees For Services and Expenses of Adjudicator." (emphasis added) 10 [13] At any rate s 19(2) of CIPAA further provides that if the parties and the Adjudicator fail to agree on the terms of appointment and the fees of the Adjudicator, the KLRCA Standard Terms of Appointment and fees for Adjudicators shall apply. [14] The Attachment 1 to Form 6 sets out a calculation of his Adjudication Fees and the KLRCA Administrative Fee. The KLRCA Administrative Fee is 20% of the Adjudicator Fee plus 6% GST; the sum being RM8,610.61 + 516.64 = RM9,127.25. Under paragraph 6 of Form 6, he then directed the parties to contribute and deposit with the Director of KLRCA in equal shares both his Fee and the KLRCA's Administrative Fee and GST within 7 days from the receipt of the said Notice. Form 6 is prescribed under the KLRCA Adjudication Rules and Procedure made pursuant to s 32(d) and 33 of CIPAA. The KLRCA Standard Terms of Appointment appears in Schedule II of the KLRCA Adjudication Rules and Procedure. By accepting his appointment, both parties have agreed to the above KLRCA Standard Terms of Appointment to apply to them and the Adjudicator as well as the adjudication. Of special significance would be paragraph 7(c) and (d) of the KLRCA Standard Terms of Appointment, where the Adjudicator shall be entitled to – 11 “...(c) direct the parties to contribute and deposit with the Director of the KLRCA, anticipated fees and expenses in equal shares in advance as security; (d) exercise a lien on his decision until any outstanding fees and expenses, including the KLRCA’s administrative fee and any taxes as may be imposed by the Government, have been paid in full in accordance with Section 19(5) of the Act.” (emphasis added) [15] Paragraph 9 and paragraph 12 of KLRCA Standard Terms of Appointment provides: “9. The adjudicator's fees and expenses incurred shall be paid in full prior to the delivery of the adjudication decision...... 12. The adjudicator shall determine the matter and serve his decision to the parties within the time period stipulated in Section 12(2) of the Act. The decision shall be made in writing and shall, subject to the settlement of all outstanding fees and expenses, be served on the parties and the Director of the KLRCA.” [16] I am in agreement with learned counsel for the claimant, Mr Lam Wai Loon, that it is clear from the agreed terms of appointment of the 12 Adjudicator, the parties have agreed to the Adjudicator withholding the service/delivery of his decision until all the outstanding fees and expenses, including any taxes as may be imposed by the Government, have been fully settled. This is also covered within the ‘further time’ which has been agreed by the parties to be accorded to the Adjudicator for deciding the dispute and delivering his decision, pursuant to Section 12(2)(c) of CIPAA. [17] For completeness s 12(2) CIPAA reads: "Subject to subsection 19(5), the adjudicator shall decide the dispute and deliver the adjudication decision within - (a) Forty-five working days from the service of the adjudication response or reply to the adjudication response, whichever is the later; (b) Forty-five working days from the expiry of the period prescribed for the service of the adjudication response if no adjudication response is received; or (c) Such further time as agreed to by the parties." (emphasis added) [18] In the instant case, the Adjudicator released his decision to the parties on 3 November 2015, after he was informed formally by the KLRCA that they have received the cheque from the respondent for the 13 outstanding taxes payable by the respondent. In the circumstances, the claimant submitted that the Adjudicator has complied with the KLRCA Standard Terms of Appointment, which bind both the parties and the Adjudicator, and that he had delivered his decision within the time as agreed by the parties pursuant to Section 12(c) of CIPAA. [19] Both parties have agreed that the Adjudicator was obligated to make his decision by 30 October 2015, the extension that was consented to by both parties. On 6 October 2015, the Adjudicator sent a reminder for payment by each party of RM258.32 being the GST to be deposited with KLRCA (pp. 50 – 52 of Affidavit in support of IRDK Enclosure 2). The respondent IRDK had on 29 October 2015 sent an email to the Adjudicator and copied it to KLRCA enclosing a scanned copy of the cheque for the amount of RM258.32 and the cheque was received by KLRCA the next day 30 October 2015. From Exhibit TSR 7 Enclosure 2 at p 55, it appears that it was received by KLRCA at 5.30pm. On 30 October 2015 at 6.54pm, Econpile’s solicitors wrote an email to Adjudicator to request that the Adjudicator’s Decision be issued “forthwith” (para 17 of Affidavit in support of IRDK). [20] The Adjudicator replied via his email dated 2 November 2015 at 4.58pm that the Adjudicator’s Decision had already deposited with KLRCA on 30 October 2015. From the acknowledgment stamp of 14 KLRCA on the letter of the Adjudicator to KLRCA dated 30 October 2015 attaching Form 15 The Adjudication Decision and Form 16 Delivery of Adjudication Decision, it would appear that the said decision had been delivered to KLRCA at 4.40pm. There was also a handwritten note of "4.40pm" written beside the rubber stamp of KLRCA. IRDK’s cheque for RM258.32 only reached KLRCA on 30 October 2015 at 5.30pm and it reached the KLRCA’s legal department on 2 November 2015. He further stated that he would release the Adjudicator’s Decision the following day. The respondent's solicitors received the Adjudicator’s Decision at 2.30pm on 3 November 2015. [21] It should also be stated that the respondent's solicitors by their email of 7 October 2015 in replying to the Adjudicator's email of 6 October 2015 requesting for an extension of time to make his decision, had also indicated their agreement to paying the GST and had gone on record that the respondent was in the process of preparing the cheque for the GST (p 48 of Enclosure 2). As can be seen at p 54 of Enclosure 2, the said cheque was dated 8 October 2015 and one wonders why it had taken such a long time to be sent to KLRCA. When asked on this, learned counsel for the respondent Mr C K Oon said he was not aware of the reason for such a delay. 15 [22] In line with the policy of a quick and speedy adjudication, s 12(3) CIPAA provides in clear language that an adjudication decision which is not made within the period specified in subsection (2) is void. The method of delivery of an Adjudication Decision is as prescribed in s 12(6) CIPAA which reads: "The adjudicator shall serve a copy of the adjudication decision, including any corrected adjudication decision made under subsection (7), on the parties and the Director of the KLRCA." [23] The Form to be used by an Adjudicator for delivering his Adjudication Decison is prescribed under Form 16 of the KLRCA Adjudication Rules and Procedure. This had been complied with by the Adjudicator and the same was received on 30 October 2015 at 4.40pm by the KLRCA. There was no undue delay from the time the respondent paid the GST of KLRCA by a cheque which reached them on 30 October 2015 at 5.30pm to the release of the decision on 3 November 2015; 31 October and 1 November being a Saturday and Sunday respectively. "Working day" in s 4 CIPAA has been defined to mean a calendar day but exclude weekends and public holidays applicable at the State or Federal Territory where the site is located. [24] There is another novel argument raised by the respondent. It is that s 19 CIPAA only allows an Adjudicator to withhold releasing his 16 decision if his fees and expenses are not paid and not that of the KLRCA's tax which is GST in this case. S 19(1) refers to "... fees to be paid to the adjudicator." S 19(2) refers to "... the fees to be paid to adjudicator." S 19(3) refers to "... the adjudicator's fees and expenses." S19(4) "... of the fees in equal share...". S19(5) reads that "Before releasing the adjudication decision to the parties, the adjudicator may require full payment of the fees and expenses to be deposited with the Director of the KLRCA." (emphasis added). If the Legislature had used the words "his fees and expenses" it would have been clearer of the meaning that it is the Adjudicator's fees and expenses alone and not to include that of KLRCA. [25] As has been observed earlier, this argument loses its sting because the terms of the appointment of the Adjudicator which are contractually binding on the Adjudicator and the parties are the terms set out in Schedule II of the KLRCA Adjudication Rules and Procedure. Paragraph 7(d) of Schedule II of the KLRCA Standard Terms of Appointment states that “the Adjudicator shall be entitled to exercise a lien on his decision until any outstanding fees and expenses, including the KLRCA’s administrative fee and any taxes as may be imposed by the Government, have been paid in full in accordance with Section 19(5) of the Act.” (emphasis added). Apparently KLRCA's own 17 reading of s 19(5) CIPAA is that it is wide enough to cover the KLRCA's fees and taxes as well. [26] Section 17A of the Interpretation Acts 1948 and 1967 states that: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." [27] The legal maxim noscitur a sociis is to be applied to yield an interpretation that best promote the purpose or object of the Rule in question. It was explained and applied by his Lordship Low Hop Bing JCA in Lim Eng Chuan Sdn Bhd v United Malayan Banking Corporation & Anor [2010] 9 CLJ 637 at pages 665 to 666, with respect to the interpretation of the word "purchaser" in section 6(1)(a) of the Powers of Attorney Act 1949 as follows: "Meaning Of "Purchaser" Under s. 6(1) [48] In my view, the borrower's submission, that the word "purchaser" in s. 6(1) of the PA Act 1949 refers to a purchaser of property and not to a lender such as the bank or other category of persons, is a product of literal interpretation. I would construe the word "purchaser" in accordance with the maxim, noscitur a 18 sociis, which means it is known from its associates. This maxim allows the word to take colour and precision from the context in which it appears. The "purchaser" in the context of s. 6(1) necessarily means the purchaser of the PA with which the PA Act 1949 is concerned. The bank herein has given valuable consideration in the form of the loan which the borrower has obtained from the bank and has no doubt utilized, enjoyed and benefited from it. The bank is indeed the purchaser of the PA in which the borrower is the donor and the bank, as purchaser, subsequently becomes the donee. This construction is in complete consonance with the purposive approach which has been enacted in s. 17A of the Interpretation Acts 1948 and 1967 (with effect from 25 July 1997 vide Act A996) in the following words......" [28] Applying the above principle to the purpose of the Act which is to promote the efficient delivery of an Adjudication Decision, it makes good sense that not just the Adjudicator's fees and expenses be paid but also that GST on his fees be paid as well, if the Adjudicator is a GST registered person. Surely the word "expenses" is broad enough to cover even taxes imposed by the Government and that includes GST as well. Moreover Schedule IV of the KLRCA Adjudication Rules and Procedure at paragraph 8.3 provides that the Adjudicator will only be paid the 19 Adjudicator Fee when KLRCA has obtained full payment of the fees and expenses from the parties. The "expenses" would include the GST of KLRCA as well. If GST on the Adjudicator's fees is to be paid before releasing of his decision, then by extension and giving the section an expansive interpretation to promote the purpose of the Act, the fees, expenses and tax of KLRCA should also by the same token be paid. [29] If there is some doubt as to the exact scope of s 19(5) CIPAA, one may turn to Rule 9 sub-rule 5 on "Fees and Expenses" of the KLRCA Adjudication Rules and Procedure which reads: "5. In the event full payment of the fees and expenses, including the KLRCA's administrative fee and any taxes as may be imposed by the Government, are not deposited with the Director of the KLRCA under section 19(5) of the Act, the adjudicator shall not release the adjudication decision to the parties." (emphasis added) [30] The marginal note or section heading to s 19 refers to "Adjudicator's Fees and Expenses, etc" The word "etc" can include the Adjudicator's fees, expenses and his tax and well as the Adjudication's fees, expenses and tax which would cover KLRCA's fees, expenses and tax. Whilst at one time there was some reticence and indeed a refrain from referring to marginal notes or section heading as an aid to 20 interpretation of statute, the current approach seems to suggest a paradigm shift in the position, approving of its use as a helpful resource and reference tool when the section itself could be made clearer. This change in approach was captured by the House of Lords in R v Montila [2004] UKHL 50, [2005] 1 ALL ER 113 as follows: "31. Then there are the headings to each group of sections and the side notes, or marginal notes, to each section. The legislation which is in issue in this case was considered and published with sides notes in the old form. In fact the side notes are side notes no longer. In 2001, due to a change in practice brought about by the Parliamentary Counsel Office, they were moved so that they now appear in bold type as headings to each section in the version of the statute which is published by The Stationery Office: see Bennion, Statutory Interpretation, 4th edn (2002), p 636.1 They appear in that form in the Bills that are presented to Parliament, and they also appear in that form in amendments which propose the insertion of new clauses into the Bill. But it remains true that, as Lord Reid said in Chandler v Director of Public Prosecutions [1964] AC 763, 789, these components of a Bill, even in their current form, are not debated during the progress of a Bill through Parliament. They are part of the Act when it has been enacted and 21 they are descriptive of its contents. But they are unamendable: Bennion, pp 608, 635 – 636.2 32. Mr Perry for the Crown submitted that it was well settled that a side note in an Act of Parliament does not constitute a legitimate aid to the construction of the section to which it relates. Mr Grenfell QC for the appellants said that he was willing to concede the point. But this is not a concession that can be accepted. It was based on a dictum of Phillimore LJ in In re Woking Urban District Council (Basingstoke Canal) Act 1911 [1914] 1 Ch 300, 322, where he said: “I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon the principle that those notes are inserted not by Parliament not under the authority of Parliament, but by irresponsible persons.” In R v Hare [1934] 1 KB 354, 355-356 Avory J said: “Headings of sections and marginal notes form no part of a statute. They are not voted on or passed by Parliament, but are inserted after the Bill has become law. Headnotes cannot control the plain meaning of the words of the enactment, though they may, in some case, be looked at in the light of preambles it there is any ambiguity in the meaning of the sections on which they can throw light.” 33. These observations were not wholly accurate at the time they were made, and they are out of keeping with the modern 22 approach to the interpretation of statutes and statutory instruments. It is not true that headings and side notes are inserted by “irresponsible persons”, in the sense indicated by Phillimore LJ. They are drafted by Parliamentary Counsel, who are answerable through the Cabinet Office to the Prime Minister. The clerks, who are subject to the authority of Parliament, are empowered to make what are known as printing corrections. These are corrections of a minor nature which do not alter the general meaning of the Bill. But they may very occasionally, on the advice of the Bill’s drafter, alter headings which because of amendments or for some other reason have become inaccurate: Bennion, p 609.1 Nor is it true that headings are inserted only after the Bill has become law. As has already been said, they are contained in the Bill when it is presented to Parliament. Each clause has a heading (previously a side note) which is there throughout the passage of the Bill through both Houses. When the Bill is passed, the entire Act is entered in the Parliamentary Roll with all its components, including those that are unamendable. As Bennion states at p 638,2 the format or layout is part of an Act. 34. The question then is whether headings and side notes, although unamendable, can be considered in construing a 23 provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and side notes are included on the face of the Bill throughout its passage through the Legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book. 35. There is a further point that can be made. In Pickstone v Freemans Plc [1989] AC 66, Lord Oliver of Aylmerton said that the explanatory note attached to a statutory instrument, although it was not of course part of the instrument, could be used to identify the mischief which it was attempting to remedy: see also Westminster City Council v Haywood (No 2) [2000] 2 AII ER 634, 645, para 19 per Lightman J. In Coventry and Solihull Waste 24 Disposal Co Ltd v Russell [1999] 1 WLR 2093, 2103, it was said that an explanatory note may be referred to as an aid to construction where the statutory instrument to which it is attached is ambiguous. In R (Wesminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, 2959B-C, Lord Steyn said that, in so far as the Explanatory Notes that since 1999 have accompanied a Bill on its introduction and are updated during the Parliamentary process cast light on the objective setting or contextual scene of the statute and the mischief at which it is aimed, such materials are always admissible aids to construction. It has become common practice for their Lordships to ask to be shown the Explanatory Notes when issues are raised about the meaning of words used in an enactment. 36. The headings and side notes are as much part of the contextual scene as these materials, and there is no logical reason why they should be treated differently. That the law has moved in this direction should occasion no surprise. As Lord Steyn said in that case, at p 2958, the starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used." (emphasis added) 25 [31] The following passage in Bennion on Statutory Interpretation A Code Fifth Edition by F A R Bennion! Lexis Nexis 2008 at Section 256. Section name (sidenote, heading or title) p. 747 has this helpful guide to the use of marginal note or section heading: "A sidenote, marginal note or heading to a section is part of the Act. It may be considered in construing the section or any other provision of the Act, provided due account is taken of the fact that its function is merely to serve as a brief, and therefore possibly inaccurate, guide to the content of the section. Due to a change of practice brought about by the Parliamentary Counsel Office at the beginning of 2001, sidenotes to sections have been replaced by headings.1 This does not effect any change in their status or use in interpretation." [32] I would follow the cautious approach of his Lordship Edgar Joseph Jr FCJ in Lim Phin Khian v Kho Su Ming [1996] 1 MLJ 1 at 15 when he observed as follows: "In Bushell v Hammond [1904] 2 KB 563 , Collins MR suggested the approach to marginal notes when he said that a marginal note, while forming no part of the section, was of some assistance as it showed the drift of the section. Similarly, in R v Schildkamp [1971] AC 1 ; [1969] 3 All ER 1640 ; [1970] 2 WLR 279 , Lords 26 Reid and Upjohn were of the view that a marginal or side note will rarely be of any use in interpreting an Act but that they should not be rejected completely as aids. Lord Reid put this on the basis that it is the whole Act that is the product of the legislature and that therefore the whole Act can be looked at if any doubt should arise as to its meaning." (emphasis added) [33] The Adjudicator is empowerd by Rule 9 sub-rule 2 of the KLRCA Adjudication Rules and Procedure to require parties to deposit with KLRCA his fees and expenses in advance as security as well as the administrative fee payable to the KLRCA as provided in Schedule III of the KLRCA Adjudication Rules and Procedure. This he has to do by way of an issuance of a direction not later than fourteen (14) days after his acceptance of the appointment. The Adjudicator had done this by way of his Attachment to Form 6 "Notice of Acceptance of the Appointment to Act as Adjudicator" dated 9 July 2015 as stated below: "Pursuant to Construction Industry Payment & Adjudication Regulation 2014 Schedule-Regulation 6, KLRCA's Standard Fees for Service and Expenses of Adjudicator shall be adopted. The fee calculations are as shown below: Attachment 1 a) Disputed Amount = RM4,035,381.87 27 b) Adjudicator Fee. = RM 39,082 + (0.54% (RM 4,035,381.87 – RM3,300,000) = RM 39,082 + (0.54% (RM 735,381.87) = RM 39,082 + RM 3,971.06 = RM 43,053.06 c) KLRCA Administrative Fee = 20% of above cost (b) + 6% GST = RM 8,610.61 + 516.64 = RM 9,127.25 TOTAL FEE = RM 52,180.31 [34] As can be seen above the Adjudicator had invoiced under one invoice his fees and expenses as well as the KLRCA's fees, expenses and tax, though separating the items. It seems odd, when both items in one invoice are to be paid as a security, to then allow the release of the Adjuidicator's Decision only after his fees and expenses have paid eventhough KLRCA's GST has not been paid. [35] Moreover as stated, this argument becomes academic when contractually parties have consented to such a term in their acceptance of the terms on the KLRCA's Standard Terms of Appointment to apply to the adjudication. [36] Arising out of that argument is the corollary argument that the Rules of the KLRCA's Adjudication Rules and Procedure (in particular 28 Rule 9 sub-rule 5 and paragraph 7(d) of Schedule II which allows the Adjudicator to "exercise a lien on his decisliens until any outstanding fees and expenses, including the KLRCA's administrative fee and any taxes as may be imposed by the Government, have been paid in full in accordance with section 19(5) of the Act" is ultra vires the Act. [37] The KLRCA Adjudication Rules and Procedure are made pursuant to s 32 and 33 of CIPAA. S 32 deals with the "Functions of KLRCA" whilst s 33 is on Policy Directions. S 32 is set out below: Adjudication Authority 32. Functions of KLRCA The KLRCA shall be the adjudication authority and shall be responsible for the following: a) Setting of competency standard and criteria of an adjudicator; b) Determination of the standard terms of appointment of an adjudicator and fees for the services of an adjudicator; c) Administrative support for the conduct of adjudication under this Act; and d) Any functions as may be required for the efficient conduct of adjudication under this Act. 29 [38] The KLRCA as the Adjudication Authority is clearly empowered under s 32(b) to determine the standard terms of appointment of an adjudicator and fees for the services of an adjudicator and under (d) any functions as may be required for the efficient conduct of adjudication under the Act. It cannot be argued that since the Act under s 19(3) does not expressly refer to non-payment of KLRCA's fees, expenses and tax as a ground for withholding the release of the Adjudicator's Decision, then the Adjudication Rules and Procedure that empowers the Adjudicator to do so is null and void as in going beyond the powers conferred by the Act. As part of good corporate governance and the requirement to pay GST as may be required under the Goods and Services Tax Act 2014, it is fully in keeping with the efficient conduct and support of adjudication that all outstanding fees, expenses and tax both of the Adjudicator and of the Adjudication Authority be paid before the Adjudication Decision be released to the parties. Indeed where parties have agreed to the default terms for the appointment of the Adjudicator as in Schedule II of the KLRCA's Standard Terms of Appointment when they proceeded with the adjudication after receipt of Form 6 and when the respondent further had agreed to pay when reminded of the non- payment via email from the Adjudicator in October 2015, it seems a hollow argument now to pursue the point that the Rules are ultra vires the Act. 30 [39] To be clear CIPAA does not prohibit the making of payment of KLRCA's fees, expenses and taxes as a condition precedent to the release of an Adjudicator's Decision and such a condition as has been introduced by the Rules and the Schedule to the Rules are in tandem with the function of KLRCA as the Adjudication Authority under CIPAA. [40] In support of the contention that an Adjudication Decision made beyond the timeline provided for under CIPAA is void, learned counsel for the respondent urged this Court to follow the strict time compliance approach of the Singapore Courts under their Building and Construction Industry Security of Payment Act (Chapter 30) ("SOPA"). As stated before the issue before this Court is not so much a case where the deadline has not been met but whether in the case of a late payment of KLRCA's GST payment, the Adjudicator has a right to withhold the Adjudication Decision and to only release it after being informed that the GST payment has been so made. [41] In the recent Singapore’s Court of Appeal’s decision in Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] SGCA 42, the lodgement of the adjudication response which was late by a mere 2 minutes was held to be invalid under SOPA. It must be borne in mind that the Singapore's position under SOPA with respect to an adjudication 31 response being filed on time is quite different from ours under our CIPAA. Under s 15(1) of SOPA, it is provided as follows: "15(1) A respondent shall, within 7 days after receipt of a copy of an adjudication application under section 13(4)(a), lodge with the authorized nominating body a response to the adjudication application." [42] Further under s 16(1) of SOPA, it is stated clearly as follows: "16(1) An adjudication commences immediately upon the expiry of the period referred to in section 15(1) within which the respondent may lodge an adjudication response. (2) An adjudicator shall reject- (a) ... (b) any adjudication response that is not lodged within the period referred to in section 15(1)." (emphasis added) [43] S 10(1) and (3) of CIPAA provides as follows: "10(1) The respondent shall, within ten working days from the receipt of the adjudication claim under subsection 9(1), serve a written adjudication response which shall answer the adjudication claim together with any supporting document on the claimant. ... 32 (3) If the respondent fails to serve any adjudication response, the claimant may proceed with the adjudication after the expiry of the time specified under subsection(1)." [44] S 12(2)(b) CIPAA reads: "Subject to subsection 19(5), the adjudicator shall decide the dispute and deliver the adjudication decision within - (a) ... (b) Forty-five working days from the expiry of the period prescribed for the service of the adjudication response if no adjudication response is received; or ....." [45] Further under the powers of the Adjudicator in s 25 (p) CIPAA the Adjudicator shall have the powers to: "Extend any time limit imposed on the parties under this Act as reasonably required." [46] Moreover under s 26(1) CIPAA it is expressly provided that: "Subject to subsection (2), the non-compliance by the parties with the provisions of this Act whether in respect of time limit, form or content or in any other respect shall be treated as an irregularity and shall not invalidate the power of the adjudicator to adjudicate 33 the dispute nor nullify the adjudication proceedings or adjudication decision." [47] Subject to the above riders, I have no problem accepting the principle that strict timeline under our CIPAA must be complied with as was clearly set out in the Singapore Court of Appeal case as follows in the context of SOPA: "28 Mr Lee sought to persuade us that as the filing of the Adjudication Response was only late by two minutes, the de minimis rule should apply here as well. We did not agree with Mr Lee’s position. The scheme of the SOPA is to provide for speedy and temporary relief so as to minimise cash flow problems within the construction industry, leaving the parties’ substantive rights to be determined on another occasion... 29 It is in this light that timelines under the SOPA have to be strictly complied with. As held by the Court of Appeal in W Y Steel Construction Pte Ltd v Osko Pte Ltd [2013] 3 SLR 380 (at [42]): ...Where the Act itself states that certain material is not to be considered in certain circumstances, this must, as a matter of logic, have the effect of qualifying some other provision that imposes a general requirement that the principles of natural justice must be applied. In this context, there is no reason to construe s 16(3)(c) as 34 foreclosing an adjudicator’s power (indeed, his obligation) to act exactly as the Act contemplates in s 15(3). We should not strain the natural construction of the Act to accommodate cases such as the present, where a respondent has failed through his own lack of diligence to file a payment response. Everyone in the building and construction industry must be aware, or at least taken to be aware, of the rigorous application of the timelines in the Act, and if they ignore them, they do so at their own peril. [emphasis added] 30 While the way we had applied r 2.2 might seem harsh in light of the fact that the Respondent’s filing of the Adjudication Response was merely two minutes late, we were of the view that having regard to the principle of temporary finality undergirding the SOPA, the strict application of the rule did not seem that draconian. Proceedings under the SOPA are meant to proceed at a good pace, and sums due under adjudication determinations are to be honoured and paid promptly. That was the whole object of the scheme. There might be a case for applying the de minimis rule if the substantive rights of the parties had been impinged, but here clearly the parties will have another chance to obtain redress by filing a substantive suit on the merits or have the matter submitted to arbitration. Accordingly, we held that there was no place for the de minimis rule to apply in this case." 35 [48] Learned counsel for the respondent also referred to the English case of Epping Electrical Company Ltd v Briggs and Forrester (Plumbing Services) Ltd [2007] BLR 126 where the Technology and Construction Court held that as the adjudicator had failed to issue his decision by 21 November 2006 which was the date the parties had agreed to his extension of time and that as the decision was not issued until 23 November 2006, the adjudicator was out of time and in consequence, the adjudicator's decision was not enforceable. The relevant legislation in UK is the Housing Grants, Construction and Regeneration Act 1996 where under s 108(2)(c) thereof it is provided that the adjudicator shall reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred. S 108(2)(d) allows the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred. [49] In answer to the issue posed at the outset, this Court would hold that the Adjudication Decision was delivered within time and released to the parties soon after confirmation that the GST of the Adjudication Authority KLRCA had been paid which was consistent and in compliance with the KLRCA Standard Terms of Appointment of the Adjudicator as provided for under Schedule II of the KLRCA Adjudication Rules and 36 Procedure contractually agreed to by the parties when receiving the Notice of Acceptance of the Appointment to act as Adjudicator in Form 6. The Adjudication Decision is thus validly made, delivered and released to the parties. Whether the Adjudicator has jurisdiction to decide on the Payment Claims when the Contract has been terminated [50] It was first submitted that this is a jurisdictional issue. Learned counsel for the respondent submitted that the whole scheme of CIPAA is premised upon there being in existence a valid contract that has not been terminated. It was further argued that once a construction contract has been terminated, adjudication is no longer available and parties will have to proceed with arbitration or litigation to resolve pending claims. [51] However, just because there is no express provision in CIPAA to say that it is applicable in cases where the construction contract has been terminated does not mean that CIPAA is inapplicable when the contract has been terminated. An argument from silence is a dangerous thing to do, whether it be in the interpretation of statute or of sacred text. If the legislature had wanted CIPAA to cease to apply upon the termination of the construction contract, it could easily had stated so. S 3 is on "Non-application" of the Act and it could have been inserted that 37 the Act does not apply once the construction contract has been terminated. [52] It was argued on behalf of the respondent that various provisions in CIPAA would only make sense if the construction contract is still in existence and subsisting such as s 29, 30 and 35. S 29 gives the claimant a right to suspend or reduce the rate of progress of performance if after having obtained an adjudication decision in its favour and the adjudicated amount is not paid. S 30 provides for the claimant to seek direct payment from the principal. S 35 is a prohibition of conditional payment in that any conditional provision in a construction contract in relation to payment under the construction contract is void. This provision appears to be in favour of CIPAA applying eventhough the construction contract has been terminated and there is a clause in the construction contract to say that any payments certified but not paid would not be paid after the termination of the contract until the works are completed and final accounts are issued. [53] The fact that these various provisions do not make make much sense if a construction contract has been terminated is no justification for saying that the moment a construction contract is terminated, then CIPAA does not apply and the adjudicator has no jurisdiction to adjudicate on a payment claim. By and large, most adjudication of a 38 payment claim and correspondingly of an adjudication claim would be in cases where the construction contract is still in existence and subsisting. Conversely if a construction contract has been terminated, there would hardly be any new progress or payment claims that would be certified by the Architect or whoever is the Superintending Officer (SO). What would be more critical would be whether a claim that had already been certified would be paid if it was already due for payment but not paid and thereafter the construction contract was terminated. [54] Perhaps appreciating that it would be quite a long shot to sustain the argument that CIPAA does not apply once a construction contract has been terminated, learned counsel for the respondent on the day of clarification, mellowed his submission to this: that if a cause of action on a payment claim has not arisen yet upon the termination of a construction contract, then the adjudicator has no jurisdiction to hear the claim. Much would then depend on the construction of the relevant clause in the construction contract that regulates the rights of the parties upon the termination of the contract. That then is not so much a question of jurisdiction but a question of construction which this Court would generally not interfere even if this Court were minded to arrive at a different interpretation. 39 [55] The matter having come before the Adjudicator for adjudication of the 2 payment claims and payment responses, the Adjudicator is entitled to proceed even if the respondent had framed the issue as a jurisdictional point for s 27(3) allows the Adjudicator to do so. It reads: "Notwithstanding a jurisdictional challenge, the adjudicator may in his discretion proceed and complete the adjudication proceedings without prejudice to the rights of any party to apply to set aside the adjudication decision under section 15 or to oppose the application to enforce the adjudication decision under subsection 28(1)." [56] From the rationale and purpose perspective of CIPAA, there is no good reason to exclude its application once the construction contract has been terminated. The long title to CIPAA sets out its preamble and captures in a concise statement the prophylactics purpose of the Act which is to: "....to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters." [57] Regard may also be had to the Explanatory Statement to the Bill of Construction Industry Payment And Adjudication Act 2012 which reads: 40 “The Construction Industry Payment Adjudication Act 2012 (“the proposed Act”) seeks to facilitate regular and timely payment in respect of construction contracts and to provide for speedy dispute resolution through adjudication. The purpose of the proposed Act is to alleviate payment problems that presently prevails pervasively and which stifles cash flow in the construction industry. The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow. The Act also seeks to provide remedies for the recovery of payment upon the conclusion of adjudication.” (emphasis added) [58] Unscrupulous contractors would have a predilection to terminate a construction contract if that has the potent effect of preempting adjudication and with that a need to make payments forthwith on the pain of execution. Of course, any wrongful termination would finally result in damages to be paid, but that can wait for some contractors, for so long as his current cash flow is not adversely affected. That would skirt the application of CIPAA at a time when it is needed most by the claimant for survival when without the cash flow for work done, it would 41 be suffocating and the claimant may have to slow down, suspend or even stop work altogether. [59] The issue had been raised in Singapore under their SOPA in AU v AV [2006] SGSOP 9, where a construction contract was terminated and a claim was made under SOPA. Philip Jeyaretnam SC concluded that he had jurisdiction under SOPA to hear the claim. His reasoning was as follows: "[13] I also noted to both counsel in the course of the hearing that while the New South Wales Act expressly included within the definition of ‘progress payment’ ‘the final payment for construction work carried out’, our Act did not. Nonetheless, I am of the view that the Act does apply even after a contract is terminated. First, the intention to protect cash flow would not be achieved if the interpretation put forward by the Respondent is adopted. If cash flow is blocked on one project, that will affect a contractor or service provider’s financial resources for other projects. Secondly, although one always speaks of termination of a contract when it is really the right and obligation to do work and be paid for it which is terminated for the future, the contract continues to govern the relationship between the parties in relation to the work already done." 42 [60] It was conceded that there are authorities in England that suggest that an adjudicator can still proceed with an adjudication and produce his “determination” even if the underlying construction contract has been terminated. This line of authorities, it was submitted, were premised on the provision of the English Act that provides that the adjudication can be proceeded “at any time” (see s. 108(2)(a) of the Housing Grant Construction and Regeneration Act 1996 ("HGCRA"). [61] However the rationale set out in A&D Maintenance & Construction Ltd v Pagehurst Construction Services Ltd [2000] 16 Const. L.K. 199 QBD (TCC) is clear. There Wilcox J of the U.K. Technology and Construction Court observes as follows: "18. Even if the contract had been terminated, the matters referred to the Adjudicator remain disputes under the contract. Where there is a contract to which the Act applies, as in this case, and there are disputes arising out of the contract to be adjudicated, the adjudication provisions clearly remain operative just as much as an arbitration clause would remain operative. 19. Had it been the intention of Parliament to limit the time wherein the party could give notice of his intention to refer a matter to adjudication, in the existence of his right under s. 108(1), it could 43 have imposed a clear limit. Precise limits as to appointment of Adjudicators and the time tabling of the process of adjudication are clearly set out in the Scheme. By contrast there is no such limitation under the Act or the Scheme as to when a notice of intention to refer a matter to adjudication may be made. By analogy, with arbitration provisions, there is clear authority to the proposition that those terms governing reference to arbitration survive the determination of the contract. See Heyman v Darwins Ltd [1942] 1 All ER 337. Doubtless the position in relation to arbitration was in the minds of the legislators when the clear words of s. 108 were enacted." [62] For the reasons given above, I am not inclined to follow the contrary position taken by the Queensland Supreme Court in holding that upon the termination of a contract, the Adjudicator has no jurisdiction to adjudicate on an outstanding claim as exemplified in McConnell Dowell Constructors (Aust) Pty Ltd v Heavy Plant Leasing Pty Ltd [2013] QSC 223 and McNab NQ Pty Ltd v Walkcrete Pty Ltd & Ors [2013] QSC 128. [63] Under our CIPAA, an adjudication is premised on there being a "Payment Claim". A "Payment Claim" is explained in s 5 of CIPAA as follows: 44 "Payment claim 5.(1) An unpaid party may serve a payment claim on a non-paying party for payment pursuant to a construction contract. (2) The payment claim shall be in writing and shall include – (a) the amount claimed and due date for payment of the amount claimed; (b) details to identify the cause of action including the provision in the construction contract to which the payment relates; (c) description of the work or services to which the payment relates; and (d) a statement that it is made under this Act." [64] Once a "Payment Claim" is made and the time frame for a "Payment Response" is over under s 6, the unpaid party may proceed with Adjudication of the Payment Claim by filing a Notice of Adjudication under s 8(1). The Adjudicator derives his jurisdiction from his appointment in this case by the KLRCA under s 21. He has the jurisdiction to hear the Adjudication Claim under s 27(1) and by extension under s 27(2). It is then for the Adjudicator to decide whether the Payment Claim should be allowed in the light of the evidence in support and the Adjudication Response filed. 45 The following passage in Construction Adjudication in Malaysia, CCH a Wolters Kluwer Business, by the learned authors Lam Wai Loon and Ivan Y.F. Loo, at p 74 is a helpful approach to making a payment claim necessary for triggering an adjudication process: “the amount claimed and due date for payment of the amount claimed” 4.26 The unpaid party is required to state in his payment claim the amount claimed and the due date for payment of the amount claimed. These requirements necessarily imply that every construction contract should provide an adequate mechanism for determining what, when and how payments are due under the construction contract. In the absence of such terms, of if the contract does not provide an adequate mechanism for determining what, when and how payments are due under the construction contract, the default provisions on the terms of payment provided by section 36(1) of the CIPA Act 2012 would be imported into the construction contract. 4.27 The unpaid party is only required to state in the payment claim the amount claimed to be due. It does not matter whether the amount claimed may not in law be due. The right of an unpaid party to serve a valid payment claim is 46 predicated on an amount being claimed, and not on there being an actual entitlement to the amount so claimed.36 Therefore, the fact that a payment claim also includes amounts which the claimant is not entitled to claim under the construction contract does not affect the validity of the payment claim.37 The unpaid party’s entitlement will be adjudicated upon and determined by the adjudicator in the adjudication proceedings. The ‘due date’ for payment of the amount claimed refers to the date by which payment should be made. Thus, if the construction contract provides that payment of a progress payment certificate should be made within 30 days from the date of the certification, then the due date for payment of a progress payment certificate is the 30th day from the date of the certification of the progress payment certificate. However, the fact that a payment claim also includes amounts which the unpaid party is not entitled to claim does not affect the validity of the payment claim.38" (emphasis added) [65] Following the prescribed format in Form 15 Sample Format of an Adjudication Decision of the KLRCA Adjudication Rules and Procedure the Adjudicator had succinctly summarised the issues before him as follows: 47 "H. ISSUES 18. By reference to the submitted Payment Claim and Payment Response, the salient issues requiring the determination of the Adjudicator are summarised as below: a) Interim Certificated No 5 R1 dated 24 March 2015 Interim Certificate No 5 R1 has been issued to Claimant for works done on 24 March 2015 by Architect with the amount of RM1,805,866.65. The due date for the certified amount supposed to be 23 April 2015, 30 days from certified date. However, the Claimant alleged that they have not received any payment for the claimed amount pursuant to Item 5 of the Letter of Award and/or Section 36(4) CIPA Act 2012. b) Progress Claim No 6 dated 31 March 2015 Progress claim no 6 was submitted by Claimant for works done on 31 March 2015 to Architect with the amount of RM2,229,515.22. A payment certificate should be issued by Architect within 21 days which is 21 April 2015 and the due date for the certified amount supposed to be 20 May 2015, 30 days from certified 48 date. However, the Claimant alleged that they have not received any payment certificate or payment for the claimed amount pursuant to Item 5 of the Letter of Award and/or Section 36(4) CIPA Act 2012. c) Contractual Rights after Purported Determination of Claimant’s Employment The Respondent has refuted to the Payment Claim on the basis that Respondent alleged Claimant’s contract has been terminated, or Claimant’s employment has been determined in accordance with Clause 25 of the PAM Building Contract. Therefore, pursuant to Clause 25.4(d), the Respondent contends that he is not bound to make further payment including payment which have been certified but not yet paid." (emphasis added) [66] The Adjudicator then proceeded to present his "Findings and Reasons" as follows: "L. FINDINGS AND REASONS 35. Issue 1: Termination of Contract and Validity of Payment Claim where the construction contract is no longer in existence 49 a) Respondent has raised issue whether the Claimant is entitled to the claims under Payment Certificated No 5 R1 and Progress Claim No 6 after the alleged termination of the contract by referring to Section 27(1) CIPA Act 2012. b) Respondent has also raised issue of the Adjudicator’s jurisdiction in proceeding with and making decision in relation to Interim Certificated No 5 R1 and Progress Claim No 6. c) Respondent has also raised a question whether an Adjudicator can proceed with adjudication proceeding and subsequently making a decision in relation to the claims submitted by way of the Payment Claim where the construction contract is no longer in existence. Finding & Reason on Issue 1: Termination of Contract and Validity of Payment Claim where the construction contract is no longer in existence a) Adjudicator, in his opinion, believes that Determination or Termination are terms always been mistakenly construed as being the same meaning and implications 50 when in fact they are somewhat different and can be well distinguished. When used in the context of constructions contract, the word ‘determination’ is employed in connection with the bringing to an end the Contractor’s employment under the particular contract. In determination, it is the Contractor’s obligation and responsibility to carry out the works under the contract that is terminated and not the contract. The contractual and common law rights of the parties remained intact and are not invalidated due to the determination. b) Therefore, in accordance with Clause 25.0 of PAM Building Contract (With Quantities) 2006 Edition, determination of contract by Employer is allowed as long it is not carried out unreasonably or vexatiously. It means that although the employment of the contractor has ended, the contract nevertheless still subsists but the rights and obligations of the parties are still governed by the post determination provisions as set out in the contract as stated in Clause 25.4. c) As such, in accordance with Section 27(3) CIPA Act, and notwithstanding a jurisdictional challenge raised by 51 the Respondent, the Adjudicator shall in his discretion to proceed and complete the adjudication proceedings without prejudice. 36. Issue 2: Issuance of Notice of Default & Notice of Determination a) Respondent alleged the Claimant’s performance has not been satisfactory which was highlighted through various correspondences from the Respondent’s appointed Architect and Engineer. b) Respondent also alleged due to the constant and repeated breaches of the Contract by the Claimant in the performance of the Contract, the Architect has issued to the Claimant a Notice of Default dated 13 April 2015 referenced YTT/irdk/ec/1404215, under Clause 25.1 of PAM Contract for the remedy of the breaches to the satisfaction of the Architect failing which the termination provision of Clause 25 of the Contract would be invoked to terminate the Contract. However, the Architect alleged actual Notice of Default was issued on 3 April 2015 by referring to letter referenced YTT/idk/ec/19032015/03042015-2nd letter. 52 c) Accordingly, the Respondent has concluded that the Claimant has failed to remedy the specified breaches of the Contract as specified in the Notice of Default within the 14 days, and the Architect by way of a letter dated 17 April 2015 acting on behalf of the Employer has issued Notice of Determination purportedly had terminated the Contract, or, in the words of Clause 25 of the PAM Contract, determined the employment of the Claimant under the contract. Findings & reasons on Issue 2: Issuance of Notice of Default & Notice of Determination a) Adjudicator has reviewed numerous letters exchanged between the Claimant and Respondent’s appointed Architect and Engineer pertaining to the Claimant’s unsatisfactory performance. However, the issues related with performance of Claimant were not brought up during the submission of Payment Claim nor Payment Response. b) Therefore, in accordance with Section 27(1) CIPA Act 2012 subject to subsection (2), the adjudicator’s 53 jurisdiction in relation to this dispute is limited to the matter referred to adjudication by both parties pursuant to Section 5 and 6. The Adjudicator shall bound (sic) within the limit of payment claim and payment response only since both parties did not attempt to extend the adjudicator’s jurisdiction to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6. c) However, issuance of Notice of Default is a pertinent matter to be considered for decision to be made in regards with the submission of Payment Claim and Payment Response. As such, the Adjudicator in accordance with Section 27(3) CIPA Act 2012 and notwithstanding a jurisdictional challenge raised by the Respondent, the Adjudicator shall in his discretion to proceed and complete the adjudication proceedings without prejudice. d) In accordance with Clause 25.2 of PAM Building Contract, upon the occurrence of any default under Clause 25.1, the Employer or Architect shall issue a written notice specifying the default. If the Contractor 54 continues with such default for 14 days from the receipt of such written notice, the Employer may within 10 days from the expiry of 14 days to determine the employment of the Contractor by a further written notice. e) Therefore, the Adjudicator in his opinion, finds that Notice of Determination issued by Architect on 17 April and 20 April 2015 can only be effective on 27 April 2015, after the expiry of 14 days from the issuance of Notice of Default issued on 13 April 2015. As such, pursuant with Section 25(d) and 25(m), the adjudicator is in his opinion, the interim certificate No 5 R1 has become due for payment by 23 April 2015, before the Notice of Determination was issued. f) In addition, the Adjudicator also appreciates the primary objective of CIPA Act 2012 is to address cash flow problems in the construction industry as highlighted by the Claimant. Since Interim Certificate No 5 R1 has been agreed upon by both parties before the Notice of Determination was issued and it is not a final claim, the Adjudicator in his discretion, finds the 55 interim certificate has reached its due date and should be made payable. 37. Issue 3: Certified Works Amounting to RM1,805,866.65 & Contractual Entitlement a) Claimant claims for an unpaid and certified works done. The Claimant has completed its works and submitted its 5th progress claim up to 9 March 2015. The Quantity Surveyor has valued and the Architect has duly certified the works whereby the Architect issued an Interim Certificate No 5 R1 dated 24 March 2015. This certified works amount to RM1,805,866.65. b) Claimant alleges the Respondent should honour the Interim Certificate No 5 R1 within 30 days, namely by the 23 April 2015, as provided in Clause 5 of Letter of Award. Findings & Reasons On Issue 3: Certified Works Amounting to RM1,805,866.65 a) The Claimant has obtained his Interim Payment Certificate No 5 R1 in accordance with Clause 30.1 of PAM Building Contract (With Quantities) 2006 Edition. As such, the Adjudicator does not find any arising issues to dispute 56 the certified amount and work done since the Respondent did not raise any objection to the certified amount and work done during the Payment Response submission. b) Therefore, the Adjudicator in his opinion, believed the certified amount should be made payable to the Claimant within the Period of Honouring as provided in the contract, which is 30 days from payment certificate being issued by Architect. The due date was 23 April 2015 which happens before the effective date of Notice of Determination which is 27 April 2015." (emphasis added) [67] The Adjudicator had given his reasons for concluding that Interim Certificate No 5 R1 that had been issued by the Architect was due for payment before the termination of the employment of the claimant. As such clause 25.4 of the PAM Contract is ineffective in postponing the payment until the final accounts are ready and the works is completed. Rightly or wrongly that is a decision that the adjudicator is entitled to come to. He may be wrong and this Court may disagree with him but that is for consideration at a litigation or arbitration arising out of the dispute where parties can fully ventilate on the validity of determination of the claimant's employment or the termination of the contract the case 57 maybe. For the moment the decision of the Adjudicator has a temporary finality to it and is enforceable. S 13(a) CIPAA is clear in that the adjudication decision is binding unless it is set aside by the High Court on any of the grounds referred to in s 15. The avenue or forum for setting aside the temporary finality of a so-called "wrong" interpretation of the relevant clause in the construction contract that had resulted in a "wrong" Adjudication Decision is at the arbitration or litigation stage as provided for under s 13(c) which reads: "The adjudication decision is binding unless- c) The dispute is finally decided by arbitration or the court." [68] So much of Clause 25.0 of PAM Contract that is relevant to assist in appreciating the arguments of the Adjudicator with particular emphasis on clause 25.4 is reproduced below: Determination Of Contractor’s Employment By Employer 25.1 Defaults by Contractor The Employer may determine the employment of the Contractor if the Contractor defaults in any of the following: 25.1(a) if without reasonable cause, he fails to commence the Works in accordance with the Contract; 25.1(b) if without reasonable cause, he wholly or substantially suspends the carrying out of the Works before completion; 58 25.1(c) if he fails to proceed regularly and/or diligently with the Works; 25.1(d) if he persistently refuses or neglects to comply with an Al; 25.1(e) if he fails to comply with the provisions in Clause 17.0; or 25.1(f) if he has abandoned the Works. 25.2 Procedure for determination Upon the occurrence of any default under clause 25.1, and if the Employer decides to determine the Contractor’s employment, the Employer or Architect on his behalf shall give to the Contractor a written notice delivered by hand or by registered post specifying the default. If the Contractor shall continue with such default for fourteen (14) Days from the receipt of such written notice, then the Employer may, within ten (10) Days from the expiry of the said fourteen (14) Days, by a further written notice delivered by hand or by registered post, forthwith determine the employment of the Contractor under the Contract. Provided always that such notice shall not be given unreasonably or vexatiously. 25.3 Contractor’s insolvency In the event of the Contractor becoming insolvent or making a composition or arrangement with his creditors, or have a winding up order made, or (except for purposes of reconstruction or 59 amalgamation) a resolution for voluntary winding up, or having a liquidator or receiver or manager of his business or undertaking duly appointed, or having possession taken by or on behalf of the holders of any debentures secured by a floating charge, or of any property comprised in or subject to the floating charge, the employment of the Contractor shall be forthwith automatically determined. 25.4 Rights and duties of Employer and Contractor In the event that the employment of the Contractor is determined under Clause 25.1 or 25.3, the following shall be the respective rights and duties of the Employer and Contractor: ... 25.4(d) the Contractor shall allow or pay to the Employer all cost incurred to complete the Works including all loss and/or expense suffered by the Employer. Until after the completion of the Works under Clause 25.4(a), the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment of the Contractor was determined. Upon completion of the Works, an account taking into consideration the value of works carried out by 60 the Contractor and all cost incurred by the Employer to complete the Works including loss and/or expense suffered by the Employer shall be incorporated in a final account prepared in accordance with Clause 25.6." (emphasis added) [69] For practical purposes, I accept the fact that there is no real difference between these two terms: “determination of the employment of the Contractor under the Contract”; and “termination of the Contract” as stated in Hudson’s Building and Engineering Contracts 12th Edition (2010) Sweet & Maxwell at p 1096, where the magnum opus of Construction Contract law, attributed this to poor draftsmanship and opined that the draftsmen making such distinctions have not in fact had any specific practical intention or distinction in mind. [70] As admitted by learned counsel for the respondent, there could well be different interpretations of clause 25.4(d) especially with respect to the meaning of "the Employer shall not be bound by any provision in the Contract to make any further payment to the Contractor, including payments which have been certified but not yet paid when the employment of the Contractor was determined." It could be that "further payment" would not include payment certified and already due for payment but not paid and that such a payment is not affected by determination of the employment of the claimant as a Contractor. It 61 could also mean that "further payment" would include all payments certified and due for payment but for whatever reason is not paid yet, then such a certified payment not paid yet eventhough due for payment need not be paid upon determination of the employment of the claimant as Contractor. [71] There is no ground for setting aside an Adjudication Decision in that the Adjudicator has arrived at a wrong conclusion of payment due when the payment was not yet due or so much of it was not yet due by applying the wrong interpretation of law to the finding of facts. An Adjudication Decision may only be set aside by the High Court if it is improperly procured for the grounds stated in s 15 CIPAA. S 15 provides as follows: "15 Improperly Procured Adjudication Decision An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds: (a) The adjudication decision was improperly procured through fraud and bribery; (b) There has been a denial of natural justice; (c) The adjudicator has not acted independently or impartially; (d) The adjudicator has acted in excess of his jurisdiction." 62 [72] Such is the approach too taken by the UK Technology and Construction Court in Westwood Structural Services Ltd v Blyth Wood Park Management Co Ltd [2008] EWHC 3138 (TCC) involving clause 7.2.3 of the Minor Works Form which is strikingly similar to our clause 25.4(d) of our PAM Contract. There was a termination of the contract after the payment certified was due for payment. Coulson J of the TCC had to consider an argument by the employer that it was not obliged to make ‘further payment’ as provided in the Contract after the Contract had been determined by the employer. In rejecting the employer’s argument, the learned TCC Judge reasoned as follows: "[4] Clause 7.2.3 of the Minor Works Form was the other term relevant to this dispute. It dealt with the payment position following determination by the employer. It provided: “Upon determination of the employment of the Contractor under Clause 7.2.1 or Clause 7.2.2, the Contractor shall immediately cease to occupy the site of the Works and the Employer shall not be bound to make any further payment to the Contractor that may be due under this Agreement until after completion of the Works and the making good of any defects therein. The Employer may recover from the Contractor the additional cost to him of completing the Works and any expenses properly incurred by the Employer as a 63 result of, and any direct loss and/or damage caused to the Employer by, the determination.” [5] The relevant chronology is quite straightforward. The Claimant contended that the works under the contract were practically complete on 15 January 2008 and relied on a letter from the Contract Administrator of that date as evidence of such practical completion. Two days later, on 17 January 2008, the Contract Administrator notified the Claimant that there were concerns regarding the efficacy of the Claimant’s works and that an investigation was underway. In the meantime the Contract Administrator told the Claimant not to carry out any further works. Curiously, the claims consultants acting on behalf of the Claimant alleged that this letter amounted to a repudiation of the contact and the Claimant thereafter left site. [6] On 16 April 2008 the Claimant commenced adjudication proceedings seeking declarations that practical completion had been achieved on 15 January, and that the letter of 17 January was a repudiatory breach of contract. The Claimant also sought the sums due for the balance of the works carried out as at 15 January 2008. 64 [7] On 25 April the Defendant’s Contract Administrator sent to the Claimant a letter purporting to determine the Claimant’s employment under the contract. The Defendant then sought to defend the claim in the adjudication by reference to cl 7.2.3, on the basis that no further sum was due until completion of what, by then, were called remedial works. However, the adjudicator properly decided that since the determination had occurred after the commencement of the adjudication, he did not have the jurisdiction to address it. [8] Thus, in Decision 1, dated 6 June 2008, the adjudicator decided that: (a) although the Contract Administrator’s letter of 15 January was not a practical completion certificate, practical completion had indeed been achieved on that date; (b) the Defendant did not repudiate the contract by the Contract Administrator’s letter of 17 January; (c) the sum of £40,000-odd plus VAT and fees was owing to the Claimant in respect of work carried out up to 15 January, and should be paid by the Defendant to the Claimant by noon on 13 June 2008 (ie seven days later). ... 65 [10] The Defendant commenced a second adjudication in front of the same adjudicator to deal with its determination claim and the argument pursuant to cl 7.2.3. Amongst other things, the Defendant sought a decision that it was under no obligation to make any further payment to the Claimant (including any sum found due in the first adjudication) unless and until the works had been completed by an alternative contractor. The Claimant, on the other hand, argued that cl 7.2.3 was irrelevant because the clause dealt with sums which were due but not payable at the time of determination, whilst any sum due to the Claimant pursuant to the first decision was both due and payable by the time of the service of the notice of determination on 25 April 2008. [11] In his second decision dated 11 June 2008 (“Decision 2”), the adjudicator found that: (a) the Defendant had validly determined the Claimant’s employment under the contract on 25 April; (b) clause 7.2.3 “did not bite when the payment in question arose out of an adjudicator’s decision”; (c) the expression “further payment” in cl 7.2.3 meant future payment, and did not apply to any payment that became due before the determination. 66 For these reasons the adjudicator rejected the Defendant’s argument that the Defendant was not bound to pay the sums identified in Decision 1 as a result of the operation of cl 7.2.3. [12] Notwithstanding the results of both Decision 1 and Decision 2, the Defendant has failed to pay the sums found due by the adjudicator. Accordingly, the Claimant seeks to recover those sums in these proceedings by way of summary judgment in accordance with CPR Pt 24. [13] The principles as to enforcement of adjudicators’ decisions are well known. They can be summarised as follows: (a) “the objective which underlies the Act and the statutory scheme requires the courts to respect and enforce the adjudicator’s decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the courts will interfere with the decision of an adjudicator”: see para 85 of the judgment of Chadwick LJ in Carillion Construction Ltd v Devonpot Royal Dockyard Ltd [2005] EWCA Civ 1358, 104 ConLR 1, [2006] BLR 15. 67 (b) An error of fact or law will not invalidate an adjudicator’s decision. If the adjudicator has answered the right question in the wrong way, his decision will nevertheless be binding. It is only if he has answered the wrong question that his decision will be a nullity: see the Court of Appeal decisions in Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2001] 1 All ER (Comm) 1041, 73 ConLR 135, [2000] BLR 522 and C & B Scene Concept Design Ltd v Isobars Ltd [2002] EWCA Civ 46, 82 ConLR 154, [2002] BLR 93. ... [19] First, I accept Mr Stansfield’s submission that the adjudicator’s decision in Decision 2 involved two separate findings in respect of cl 7.2.3, as set out above. The first was that sums due pursuant to an adjudicator’s decision are not caught by the words “any further payment to the contractor that may be due” in cl 7.2.3. Effectively he was deciding that sums awarded by an adjudicator were due in any event. The adjudicator may be right or he may be wrong about that but, again, that was a decision which he was entitled to reach. It cannot be impugned on this application. [20] Further, that conclusion is unaffected by the Defendant’s argument as to whether or not the adjudicator decided that the 68 sum was due before 13 June 2008. Whatever the outcome of that debate, the adjudicator’s conclusion, that the sum that he ordered to be paid by Decision 1 essentially overrode the provisions of cl 7.2.3, is determinative of this application. ... [22] The second complete answer to the point taken by the Defendant is that the adjudicator has already ruled in Decision 2 against the Defendant’s submission that their determination occurred before this sum was due, and that therefore they were entitled to rely on cl 7.2.3 as a defence to the claim. He has expressly ruled that they cannot rely on cl 7.2.3 to get round their obligation to pay. [23] Again, although strictly speaking it is unnecessary for me to comment on that conclusion, I should add that I consider that the adjudicator may well have been right in reaching the conclusion that cl 7.2.3 was irrelevant on the facts of the case. After all, he found in Decision 1 that the final date for payment of the amount due in the penultimate certificate was 12 February 2008. That was two and a half months before the determination of the contract by the Defendant. In my judgment, it would be contrary to the standard form of contract, and indeed to the Housing Grants, 69 Construction and Regeneration Act 1996, to conclude that an employer was entitled to defeat a claim for sums due under the contract by reference to an event which occurred two and a half months after the money should have been paid." (emphasis added) [73] Learned counsel for the claimant also cited Johnson v Moreton [1978] 3 All ER 37, Levolux AT Ltd v Ferson Contractos Ltd [2002] QBD 341 and Cubitt Building and Interiors Ltd v Fleetglade Ltd [2006] EWHC 3413 in support of the above proposition. [74] In Ferson Contractors Limited v Levolu A.T. Limited [2003] EWCA Civ 11, [2003] WL 116708 the English Court of Appeal had to consider whether an adjudicator's decision should be upheld in a case where there had been termination of the contract in the light of provisions in the construction contract as follows: Clause 29.8 provides: “If the contractor shall determine the Sub-Contract for any reason mentioned in clause 29.6 the following provisions shall apply: 1. All sums of money that may then be due or accruing due from the Contractor to the Sub-Contractor shall cease to be due or accrue due;” 70 Clause 29.9 provides: ”Until after completion of the Sub-Contract Works and the making good of defects as referred to in clause 14.3 the contractor shall not be bound by any provisions of the sub-contract to make any further payment to the sub-contractor.” [75] Lord Justice Mantell in his speech in the Court of Appeal reasoned as follows: "27. Mr Collings asks, rhetorically, whether there is any real reason that effect should not be given to those clear contractual provisions. He submits that there are three main exceptions to the principle that an adjudicator’s decision is binding and enforceable pending final resolution by arbitration or litigation. These he identifies as (1) where the adjudicator did not have jurisdiction or failed to act fairly or in conformity with the applicable procedures, (2) the terms of the contract override the apparent obligation to make payment in accordance with the adjudicator’s decision and (3) where the decision is overridden by another applicable adjudication. ... 30. But to my mind the answer to this appeal is the straight forward one provided by Judge Wilcox. The intended purpose of 71 s.108 is plain. It is explained in those cases to which I have referred in an earlier part of this judgment. If Mr Collings and His Honour Judge Thornton are right, that purpose would be defeated. The contract must be construed so as to give effect to the intention of Parliament rather that to defeat it. If that cannot be achieved by way of construction, then the offending clause must be struck down. I would suggest that it can be done without the need to strike out any particular clause and that is by the means adopted by Judge Wilcox. Clauses 29.8 and 29.9 must be read as not applying to monies due by reason of an adjudicator’s decision." [76] The Singapore Courts too have taking a similar approach in SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2010] 1 SLR 733, where Judith Prakash J held: 41 In my judgment, bearing in mind the purpose of the legislation, the court’s role when asked to set aside and adjudication determination or a judgment arising from the same, cannot be to look into the parties’ arguments before the adjudicator and determine whether the adjudicator arrived at the correct decision. In this connection, I emphasise the intention that the procedure be speedy and 72 economical. It would be recalled that one of the adjudicator’s duties is to avoid incurring unnecessary expense. If the court were to be allowed to look into questions of substance or quantum including questions like whether a proper payment claim had been served by the claimant, the procedure is likely to be expensive and prolonged. One can very easily envisage a situation (in fact such situations have already occurred) where the dissatisfied respondent first applies to the court for the adjudication determination to be set aside on the ground that, for example, the adjudication response should not have been rejected, and then when that application is rejected by the assistant registrar, appeals to the judge in chambers and finally when the appeal is unsuccessful, appeals again to the Court of Appeal. Bearing in mind that the adjudication process could have been a two-step process involving a review, that would mean five steps in all before the dispute regarding the claimant’s payment claim is finally disposed of. The more steps there are, the longer the process will take and the more expensive it will be. Such an outcome would be contrary to the intention of Parliament that the adjudication procedure should afford speedy interim relief. (emphasis added) 73 [77] In our case too, keeping in mind the mischief that CIPAA was designed to address i.e. to alleviate the cash flow problem in the construction industry for the unpaid party and to give a temporary finality to the payment claims I would follow an interpretation that would best promote the purpose and object of the Act than that which would not promote it in line with the requirement of Section 17A of the Interpretation Acts 1948 and 1967 which states that: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." [78] Further under s 35 CIPAA there is a Prohibition of Conditional Payment. S 35 reads as follows: "(1) Any conditional payment provision in a construction contract in relation to payment under the construction contract is void. (2) For the purpose of this section, it is a conditional payment provision when: (a) The obligation of one party to make payment is conditional upon that party having received payment from a third party; or 74 (b) The obligation of one party to make payment is conditional upon the availability of funds or drawdown of financing facilities of that party." [79] Mr Oon for the respondent submitted that by a "conditional payment" is meant the two definitions in s 35(2)(a) and (b) and nothing more. Mr Lam for the claimant submitted that it is open for the Court to interpret "conditional payment" to be wider than the two instances provided in s 35(2)(a) and (b) and to interpret it expansively to cover all cases of a conditional payment term which has the effect of defeating the purpose of the Act. [80] We are aware that when if the subsection had use the words "(2) For the purpose of this section, "conditional payment" means-" then we are left in no doubt that the 2 examples are exhaustive and permits of no other additional instances of conditional payment terms. If that subsection had used the word "includes" instead of "means" we would also be quite clear and confident that the examples given are by no means exhaustive. [81] However seeing that Parliament had chosen to state a general principle first in s 35(1) and has couched it to be all-encompassing as in the use of the expression "Any conditional payment provision..." I would 75 prefer a more expansive interpretation that would accord with the purpose of the Act. Parliament could have used the expression in s 35(1) as "A conditional payment provision within the meaning of subsection (2)......is void." It could be safely concluded that Parliament had left it to the Court to determine on a case by case basis as to whether a conditional payment term would be defeating the purpose of the Act. [82] For instance if a conditional payment term is merely that the unpaid party as contractor must show proof of payment to his subcontractors before the Employer needs to pay the contractor, such a condition might not be unreasonable and might be good in enhancing corporate governance and efficiency in contracts management. There might well be a myriad of conditions not all of which would be defeating the purpose of the Act. In fact the Explanatory Statement to the Bill reads: "The proposed Act further provides default payment terms in the absence of provisions to that effect and prohibits conditional payment terms that inhibit cash flow." (emphasis added) [83] On the contrary, a condition like Clause 25.4(d) has the effect, upon the termination of the contract, of postponing payment due until the final accounts are concluded and the works completed and that 76 would be defeating the purpose of the Act. Therefore such a clause is void and unenforceable and the Adjudicator may disregard it altogether. [84] The Adjudicator had also given his reasons for dismissing the payment claim No. 6 as follows: "38. Issue 4: Certified Works Amounting to RM2,229,515.22 a) The Claimant has submitted its 6th progress claim to the Architect on 31 March 2015 amounting RM2,229,515.22. The Claimant alleges the works are completed but yet to be certified by the Architect. b) Hence the Claimant contended that in the absence of the terms of payment, the statutory default provision Section 36(1) of CIPA Act 2012 shall be used. c) Respondent’s appointed Quantity Surveyor has issued Draft Recommendation of Interim Valuation No 6 dated 17 April 2015 with a valued amount of RM1,197,545.81. d) Respondent’s appointed Architect has issued Certificate of Non Compliance dated 22 May 2015 which certifies that Claimant has failed to complete 77 works as per contract by the extended contract completion date of 5 April 2015. Findings & Reasons on Issue 4: Certified Works Amounting to RM2,229,515.22 a) Architect has not issued any interim certificate No 6 since Notice of Default has been issued on 13 April 2015. Adjudicator is in his opinion agreeable that Architect has acted within the rights as provided in Clause 25.6 of PAM Building Contract (With Quantities) 2006 Edition which requires Final Account to be finalised prior any further payments to be released. b) Meanwhile on the issue of terms of payment, the Adjudicator is agreeable with the Respondent’s contention that statutory default provision under section 36(1) CIPA Act 2012 may not be applicable since Clause 30.1 PAM Building Contract has provided its own Period of Honouring or 30 days upon the issuance of interim certificate by the Architect." 78 [85] The Adjudicator had taken the view that since the payment had not been certified by the Architect yet and further that since the Architect had issued a Notice of Default, the payment is not due yet. It is something within the province and purview of the Adjudicator to decide and any error of fact or law or of both fact and law may be corrected at the final arbitration or litigation where all outstanding issues may be ventilated to finality. In any event the claimant had not applied to set aside this part of the Adjudication decision dismissing its claim in Payment Claim No. 6 and so no further comments would be necessary. Whether there has been a breach of rules of natural justice when the Adjudicator allowed interest on the Adjudicated Sum [86] The claimant submitted that the respondent’s allegation that the Adjudication Decision should be set aside on ground of breach of rules of natural justice is untenable because: (a) First, the parties were given opportunity to address the Adjudicator on the issue of interest; (b) Secondly, awarding interest is within the power of the adjudicator, pursuant to Section 25(o) of CIPAA; (c) Thirdly, and in any event, there is no material breach of the rules of natural justice. 79 [87] To begin with, the claimant had claimed interest at the rate of 5% per annum on the unpaid amounts from the date each payment was due to the date full payment is received. The claimant had submitted the Chief Justice of Malaysia Practice Direction No. 1 of 2012 dated 31 July 2012 with respect to determination of interest under the Rules of Court 2012 which states the rate of interest of 5% per annum with effect from 1 August 2012. [88] The claimant had also submitted PAM Building Contract (With Quantities) 2006 Edition which provided in clause 30.17 on interest whereby " ... a simple interest based on the Maybank Base Lending Rate plus one (1) percent shall be payable by the defaulting party on such outstanding amount until the date payment is made." The parties were invited to file their written submissions and if the respondent had not addressed the issue of interest payable and if so at what rate, then they cannot cry foul and complain when the Adjudicator awarded interest on the amount found to be due. The Adjudicator under s 25 shall have the powers to - "... (d) Draw on his own knowledge and expertise; ... 80 (i) Inquisitorially take the initiative to ascertain the facts and the law required for the decision; ... (o) Award financing costs and interest; ..." [89] There was nothing improper and much less a breach of the rules of natural justice for the Adjudicator to have referred to Maybank's webpage www.maybank2u.com.my for the Maybank's Base Lending Rate which was 3.20% with effect from 2 January 2015. The Adjudicator concluded as follows: "k) Accordingly, the Adjudicator holds that interest stated in the PAM Building Contract shall take precedence being a binding contract between the contracting parties and therefore a simple interest of 4.2% per annum on yearly rest shall be applied on the sum of RM1,805,866.65 from the date payment certificate No. 5R1 becomes due, 23 April 2015." [90] I cannot see how in arriving at his decision on interest to be awarded, the Adjudicator could be said to have acted in breach of the rules of natural justice. I would follow the guidelines laid down in the case of Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) as follows: 81 “[57] From this and other cases, I conclude as follows in relation to breaches of natural justice in adjudication cases: (a) It must first be established that the Adjudicator failed to apply the rules of natural justice; (b) Any breach of the rules must be more than peripheral; they must be material breaches; (c) Breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is not peripheral or irrelevant. (d) Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which must be assessed by any judge in a case such as this. (e) It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd v The 82 Camden Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on the point, there is no beach of the rules of natural justice in relation thereto.” Pronouncement [91] Taking all the submissions of the parties as a whole, I was constrained to dismiss the application in OS 24C-41-12/2015 to set aside the Adjudication Decision and correspondingly, to allow the claimant’s application to enforce the Adjudication Decision in OS 24C- 40-11/2015. As both the Applications were being together I granted a single costs of RM10,000.00 to be paid by the respondent IRDK to the claimant Econpile and the allocator is to be paid before extraction of order of costs. Dated: 6 April 2016. - sgd - Y.A. TUAN LEE SWEE SENG Judge Construction Court Kuala Lumpur 83 For the Plaintiff in : Lam Wai Loon, Paul Lee, OS 24C-40-11/2015 : Serene Hiew and Kevin Wong and for the Defendant in : OS 24C-41-12/2015 : (Messrs T G Lee & Associates) For the Plaintiff in : Oon Chee Kheng OS 24C-41-12/2015 : and for the Defendant in : (Messrs CK Oon & Co) OS 24C-40-11/2015 : Date of Decision: 15 March 2016.

Tika 2.6.0

S-22-287-2009

PLAINTIF BANK ISLAM MALAYSIA BERHAD DEFENDAN 1. MOHAMAD NAJIB BIN SHAHARUDDIN 2. RAJA ZAINAL ALAM SHAH BIN RAJA ABDULLAH OMAR 3. ABDUL AZIZ BIN ISMAIL 4. ISHAK BIN YAHYA

06/04/2016

YA DATUK SU GEOK YIAM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2c362816-7875-4405-bf9a-ace14cf692b9&Inline=true

DALAM MAHKAMAH TINGGU MALAYA DI KUALA LUMPUR IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA CIVIL SUIT NO: S-22-287-2009 BETWEEN BANK ISLAM MALAYSIA BERHAD ... PLAINTIFF AND 1. MOHAMAD NAJIB BIN SHAHARUDDIN 2. RAJA ZAINAL ALAM SHAH BIN RAJA ABDULLAH OMAR 3. ABDUL AZIZ BIN ISMAIL 4. ISHAK BIN YAHYA … DEFENDANTS GROUNDS OF JUDGMENT (No. 2) Background 1. The plaintiff is a public company incorporated under the Companies Act 1965. 2. The plaintiff owns a subsidiary, namely Bank Islam (Labuan) Ltd (“BILL”). BILL was incorporated under the Offshore Companies Act 1990. 3. BILL was granted a licence by the Labuan Offshore Statutory Authority (“LOFSA”) to carry out offshore banking business in Labuan. 4. The Chief Executive Officer (“CEO”) and the Chief Operating Officer (“COO”) of BILL were responsible for the management and operation of BILL. 5. Mohamad Najib Bin Shaharuddin, the 1st defendant, was the COO from 1 January 2000 and the CEO from 1 January 2003. Subsequently, the 1st defendant was appointed as the director of BILL at the 54th Board of Directors’ meeting on 25 June 2003. 6. Raja Zainal Alam Shah Bin Raja Abdullah Omar, the 2nd defendant, was the CEO of BILL from 1 May 1997 i.e. prior to the 1st defendant’s tenure of office as the CEO from 1 January 2003. 7. Between July 2000 and August 2004, the 2nd defendant served as a member of the Board of Directors of BILL. 8. At all material times, Abdul Aziz Bin Ismail, the 3rd defendant, was an employee of BILL and served as the Head of the Operations Department of BILL from 1 October 2000. 9. Ishak Bin Yahya, the 4th defendant, joined the plaintiff as a bank officer on March 1984. In April 2001, he was transferred to BILL. 10. At all material times, the 4th defendant, was an employee of BILL and served as the Head of the I.T. and Finance Department of BILL from April 2001 until 2005. 11. At all material times, there was a Management Committee (“MC”) in BILL. The role of the MC was, inter alia, to consider and to recommend credit facilities to the Board of Directors for the latter’s approval. 12. The 1st, 2nd and 4th defendants were appointed as members of the MC. Subsequently, the 1st and 2nd defendants also held the post of the Chairman of the MC at different times. 13. The 3rd defendant, as a member of the MC, was also involved in the performance and discharge of the functions and role of the MC i.e. the recommendation of loans and their disbursal for the approval of the Board of Directors. 14. On 10 December 2004, the High Court ordered all the undertakings and the assets of BILL to be vested in the plaintiff. 15. According to the plaintiff, at all material times, the defendants’ in their capacity as the employees of BILL owe to BILL statutory duties under section 92 of the Offshore Companies Act 1990, a common law duty of care and skill and express and/or implied contractual duties. Plaintiff’s suit 16. In this suit, the plaintiff is claiming for damages against the defendants for losses suffered as a result of their breaches of duties in respect of four credit facilities. The four credit facilities 17. The four credit facilities are as follows: (1) the Farris facility; (2) the Commerce Trading facility; (3) the Crest Group facility; and (4) the Crestek facility; The Farris facility 18. The briefs facts of this facility are as follows: (1) This facility was granted by BILL to Farris. (2) It is an Al-Bithaman Ajil facility for USD$ 485,000.00. One of the securities required under the facility comprised a 3rd party Cash Deposit. It provided 100% security and the Cash Deposit was made by one Dato' Afifudin bin Haji Omar. (3) The facility was recommended by the MC to BILL’s Board of Directors and the facility was disbursed to Farris. (4) Prior to the execution of the security documents, the 1st defendant signed a letter which was addressed to Tabung Haji. The letter instructed Tabung Haji to release the plaintiff’s charge over Dato' Afifuddin’s account with Lembaga Tabung Haji. (5) However, the charge over the security i.e. the Cash Deposit, was never perfected. Hence, the Farris facility was unsecured since 19 January 2004 (6) Subsequently, Farris defaulted on the repayment of the facility. (7) The plaintiff’s claim is against the 1st defendant. The Commerce Trading facility 19. The brief facts of this facility are as follows: (1) The facility was recommended by the MC and approved by the Board of Directors of BILL to Commerce Trading and disbursement was made to Commerce Trading. (2) While they were in the MC, all the defendants recommended to BILL’s Board of Directors for the latter’s approval, a USD$ 4,800,000.00 Al-Ijarah Al-Muntahiah Bit Tamlik facility in favour of Commerce Trading. (3) The defendants proposed to BILL’s Board of Directors that the facility be secured by joint and several guarantees to be given by one Kamaruddin Awang and one Datuk Hiew (the “2 guarantors) even though Datuk Hiew was not an appropriate guarantor for the facility. (4) Subsequently, Commerce Trading defaulted on the repayment of the facility. (5) The plaintiff also failed to recover the amounts owed by Commerce Trading to BILL from the two guarantors. (6) The plaintiff’s claim is against all the defendants. The Crest Group facility 20. The brief facts of this facility are as follows: (1) This is a Master Al Bai Bithaman Ajil facility which was granted by BILL to the Crest Group. (2) The facility was to be secured by two debentures i.e. one on the fixed and floating assets of Martin Walter Ultrashllteknik AG and another on the fixed and floating assets of Rinco Ultrasonics AG (the “2nd securities). (3) A change of security arrangement was later recommended and approved whereby the 2 securities were cancelled and replaced by a negative pledge. (4) Nevertheless, notwithstanding that the negative pledge was not obtained, the 1st and 2nd defendants approved the disbursal of the facility to the Crest Group. (5) Subsequently, the Crest Group defaulted on the repayment of the facility to BILL. (6) The plaintiff’s claim is against the 1st and 2nd defendants. The Crestek facility 21. The brief facts of this facility are as follows: (1) This is a facility which was granted by BILL to Crestek. (2) Contrary to the practice of BILL, the 3rd defendant prepared the Memorandum of Financing Approval to Crestek which approved the disbursal of the facility. (3) Subsequently, Crestek defaulted on the repayment of the facility. (4) The plaintiff’s claim is against the 3rd defendant. Documents filed by the parties for use in the full trial 22. The parties have filed the following documents for use in the full trial pursuant to the directions given by the Court during case management proceedings: (1) Bundle of Pleadings (enclosure (39A)); (2) Bundle of Documents in 4 volumes; (3) Summary of case (plaintiff) (enclosure (39B)); (4) Summary of case (4th defendant) (enclosure (40A)); (5) Summary of case (1st and 2nd defendants) (enclosure (42)). (6) Agreed Facts (enclosure (45)); (7) Issues to be tried (enclosure (46)); (8) Plaintiff’s Opening Statement (enclosure (44)); (9) List of 4 (four) Witnesses (plaintiff) (enclosure (47)); (10) List of 2 (two) Witnesses (1st and 2nd defendants) (enclosure (43)); (11) List of 1 (one) Witness (4th defendant) (enclosure (48)); (12) 4 Witness Statements (plaintiff) (enclosures (58), (59), (60) and (61)); (13) 1 Witness Statement (4th defendant) (enclosure (56)); and (14) 2 Witness Statements (1st and 2nd defendants) (enclosures (65) and (66)). Issues for the determination of the Court 23. The parties have framed the following 3 (three) issues for the determination of the Court: (1) Whether all the defendants at the material times, owe duties (statutory, common law and/or contractual) to the plaintiff? (2) Whether all the defendants had, at all material times, acted in breach of their duties owed to the plaintiff? and (3) Whether the plaintiff has suffered loss and/or damage by reason of the defendants’ breaches of their statutory, common law and/or contractual duties and, if so, what is the quantum of such loss and/or damage? Additional issues for the determination of the Court 24. The Court has framed the following 3 (three) additional issues for the determination of the Court, which have arisen as a result of the submissions of the parties on the 3 (three) issues as set out above: (1) Whether the Court ought to apportion liability between the 4 (four) defendants and the Board of Directors of BILL and/or the plaintiff? (2) Whether the non-calling of the members of the Board of Directors of BILL and/or the plaintiff as witnesses is fatal to the plaintiff’s suit and claims against the 4 (four) defendants? (3) Who bears the burden of proof on mitigation of losses that are claimed by the plaintiff? The full trial 25. The parties called 7 (seven) witnesses altogether. 26. The plaintiff called 4 (four) witnesses. They are as follows: (1) Mdm. Maria binti Mat Said, the Company Secretary and Head of Legal and Secretarial of the plaintiff, who had joined the plaintiff on 1 August 2005 and whose evidence is based on documents and records maintained by the plaintiff to which she has access, as PW1; (2) Mr. Suffian bin Ariffin, who, at the material time, was assigned to the Capital Market and Syndication Unit under the Corporate Banking Department of BILL, as PW2; (3) Mr. Mohamed bin Jusoh, the Investigating Officer from the Special Investigations Unit of the plaintiff since 2007, as PW3; and (4) Mr. Nurulzahar bin Ghazali, the present Assistant General Manager of the Business Support Division of the plaintiff, who had joined the plaintiff on 6 June 2005, whose evidence is based on his personal knowledge and also the documents of the plaintiff to which he has full access, as PW4. 27. The defendants called 3 (three) witnesses. They are as follows: (1) Mr. Mohamad Najib bin Shaharuddin, the 1st defendant himself, who had commenced his employment with the plaintiff in 1986 and who was transferred to BILL in 1997, as DW1; (2) Mr. Raja Zainal Alam Shah bin Raja Abdullah Omar, the 2nd defendant himself, who had commenced his employment with the plaintiff on 16 December 1996 as a bank officer, and who was tasked with the setting up of BILL and who was transferred to BILL in June 1997, after BILL was set up and had commenced operations, as DW2; and (3) Mr. Ishak bin Yahaya, the 4th defendant himself, who had commenced his employment with the plaintiff on 15 March 1984 as a bank officer and in April 2001, he reported for duty in BILL and about 3 to 4 months later he was appointed as one of the members of the Management Committee of BILL, as DW3. 1st and 2nd defendants’ submissions 28. Encik Azhar Arman Ali, the learned counsel for the 1st and 2nd defendants, submitted that the plaintiff’s claim against the 1st and 2nd defendants ought to be dismissed based on the following reasons: (1) He relied on clause 1 of the Supplementary Agreement, which was drafted by the legal advisors of BILL, (at Bundle E, p. 304) which states as follows: “In consideration of the Customer procuring the said Third Party Memorandum of Charge Over Shares in favour of the Bank, the Bank hereby agrees to release the Memorandum Of Deposit with effect from the date hereof.” (2) Based on the wordings of clause 1 as set out above, it seems that BILL’s own legal adviser, i.e. Messrs. Mohamed Ismail & Co, had found it safe to allow BILL to immediately release the Tabung Haji deposit “with effect from the date hereof”, when Messrs. Mohamed Ismail & Co themselves had known fully well that the Memorandum of Charge Over Shares i.e. of Digi.com Bhd, was yet to be perfected. This is because Bambang Sugeng had not executed the Memorandum of Charge Over Shares. This knowledge is clear from recital D of the Supplementary Agreement, which states that the Memorandum of Charge Over Shares was “to be executed by Bambang Sugeng in favour of the Bank”; (3) It is worth noting that Messrs. Mohamed Ismail & Co. was not a legal firm which was called in at the last minute to draft the Supplementary Agreement without knowledge of the background facts. Messrs. Mohamed Ismail & Co. was duly engaged by BILL as its legal counsel at the inception of the Faaris Facility in the year 2000. BILL’s own papers dated 14 July 2000 (see Bundle E, p. 297) states clearly that Messrs. Mohamed Ismail & Co was the ‘Financier’s Legal Counsel’ for this loan transaction. It is safe to assume that Messrs. Mohamed Ismail & Co’s had full knowledge of the Faaris Facility and its securities; (4) If BILL’s own legal advisor (i.e. Messrs. Mohamed Ismail & Co.) had deemed it all right to release the Tabung Haji deposit even though Bambang Sugeng had not executed the Memorandum of Charge over the Digi.com Bhd’s shares, why would the blame be placed on the 1st defendant for authorizing the release of the Tabung Haji deposit?; (5) By virtue of executing the Supplementary Agreement (on 26 January 2004), an agreement which was prepared and advised upon by Messrs. Mohamed Ismail & Co., the 1st defendant had no choice but to authorize the release of the Tabung Haji deposit. The words in clause 1 of the Supplementary Agreement are crystal clear. These are i.e. “... the bank hereby agrees to release the Memorandum of Deposit with effect from the date hereof”; (6) Since the undated Supplementary Agreement was actually executed on 26 January 2004 (a fact which PW4 himself had agreed), and in the absence of any documentary evidence to show the actual date Tabung Haji received the release letter, we have to assume that the release of the deposit was made on or after 26 January 2004; (7) In the light of the Supplementary Agreement drafted by BILL’s own legal counsel, authorizing an early release, i.e. prior to the execution of the Memorandum of Charge over the Digi.com Bhd’s shares, the 1st defendant had done nothing wrong in the circumstances; (8) The plaintiff’s only witness who testified on this issue was PW3. PW3 claimed that he was an internal investigator appointed to investigate the alleged irregularities in approving the Commerce Trading Facility; (9) His evidence is highly suspect. First and foremost, there was no document whatsoever to corroborate his appointment to investigate. His authority to investigate, functions and scope of investigation, remains a mystery; (10) It is inconceivable for the plaintiff (as a licensed bank) to authorize an investigation of an alleged irregularity without any documentation (since none was tendered in evidence). There was also no report of the so-called investigation, made or produced in Court; (11) PW3 also gave conflicting testimonies in Court. In his evidence-in-chief (i.e. in his witness statement, P30) he said he investigated the Commerce Trading Facility. In cross-examination, PW3 agreed to the suggestion that he investigated the defendants but did not make any conclusion because he found that the 1st and 2nd defendants were not at fault. However, in re-examination, PW3 said that he did not investigate the 1st and 2nd defendants at all; (12) It would be wrong in law and in fact to find liability on the part of the 1st and 2nd defendants based on the suspicious evidence of PW3. This is bearing in mind that PW3 is the only witness for the plaintiff in respect of the Commerce Trading Facility; (13) The presumption in section 114 (g) of the Evidence Act 1950 ought to apply against the plaintiff in respect of PW3 in that, the investigation documents (if any), such as any letter of appointment or notes of investigations, if produced, will adversely affect the plaintiff’s case against the 1st and 2nd defendants; (14) Much like the Faaris Facility, the plaintiff also failed to prove, on the balance of probabilities, that the plaintiff had taken the necessary steps to enforce the various securities under the Commerce Trading Facility when the facility was in default. There was no evidence that the plaintiff attempted to enforce any security under the Commerce Trading facility when the same was in default; (15) The plaintiff also failed to prove that the loan default and the amount outstanding under the Commerce Trading Facility was a consequence of the failure to determine Datuk Hiew’s financial status. Hence, the plaintiff’s loss is not caused by the 1st and 2nd defendants and the damage is remote; (16) The ad hoc facility for USD 200,000.00 was also governed by various collaterals. It would be grossly unjust to blame the 1st and 2nd defendants (solely on the issue of Datuk Hiew’s status) when the plaintiff had the benefit of all the other collaterals. The failure of Commerce Trading to repay its loan and the failure of the plaintiff to enforce the available securities diligently were the probable causes that the loan remained outstanding and it has nothing to do with Datuk Hiew’s financial status; (17) In respect of the Crest Group Facility, the plaintiff’s case rests solely on the failure to secure a certain ‘negative pledge’ but it is important to note the evidence of PW4 when he said (in cross-examination) that a ‘negative pledge’ is in fact a reduction in security (compared to a debenture). In essence, the conversion of the originally intended security i.e. from a debenture to a ‘negative pledge’, is effectively reducing the net value of the security. Therefore, taking into consideration all the other securities and collaterals under this facility, and on the balance of probabilities, the ‘negative pledge’ should not be regarded as a ‘deal breaker’; (18) Since none of the members of the Board of Directors (past and present) was called to give evidence for the plaintiff it would be wrong to assume that the action taken by the Board of Directors of BILL would be any different if the ‘negative pledge’ was not obtained; (19) Further, Messrs. Mohamed Ismail & Co. was engaged to carry out its duties to secure the ‘negative pledge’ and there was no evidence of any follow-up action on the matter; (20) Similar with the other facilities discussed above (like the Commerce Trading Facility, for example) there were other ample securities to cover the plaintiff’s risk in the event of default; (21) In this case, the plaintiff had adduced evidence of a loan settlement between the plaintiff and the borrower (i.e. Crest Group) for a sum of RM RM 8,049,980.00. In such a situation, it would be wrong to impose any finding of liability on the defendants, especially, when there is no longer any amount outstanding under the Crest Group Facility because the settlement is a full settlement and the total outstanding balance is recorded as nil in the the statement of account as at 7 October 2013 (see Bundle D, page 2); (22) There is no evidence adduced at trial of any written contract of employment for both the 1st and 2nd defendants. Hence, it would be wrong in law and in fact to speculate the exact contractual obligations of these defendants, in the circumstances of the above loan facilities. There was also no evidence of the industry practice in the given circumstances. Therefore, the case for a breach of contract against the 1st and 2nd defendants is not made out; (23) Hence, the plaintiff has failed to prove that the 1st and 2nd defendants were, in fact and in law, negligent or that they have breached their, respective, employment contracts or that they have breached the provisions of section 92 of the Offshore Companies Act 1990; (24) On the contrary, the failures of the, respective, borrowers, (namely, Faaris and Commerce Trading, bearing in mind that Crest Group had made payment and there is no amount outstanding), to repay their loans were not caused by the alleged failures of the 1st and 2nd defendant. This is because the failure to repay is a distinct issue quite separate from the issue concerning the alleged failures of the 1st and 2nd defendants to perform and fulfil their duties to BILL. The failure to repay coupled with the fact that there is no evidence of recovery or the enforcement of available securities were the likely causes why the loans were outstanding. In other words, there was no causal connection between the alleged negligence of the 1st and 2nd defendants and the alleged damage suffered by the plaintiff; (25) The evidence of the plaintiff’s key witnesses (PW3 and PW4) left a lot to be desired and none of the members of the Board of Directors of BILL or the plaintiff was called to give evidence; and (26) Therefore, on the balance of probabilities, there was no negligence, breach of contract and/or breach of statute on the part of the 1st and 2nd defendants. 4th defendant’s submissions 29. Encik Mohd Mohyiddin bin Mohd. Mesbah, the learned counsel for the 4th defendant, submitted that the plaintiff’s suit and claims against the 4th defendant ought to be dismissed with cost based on the following reasons: (1) With regard to the Faaris Facility, the 4th defendant was not involved at all and the plaintiff’s witnesses has not adduced any evidence to implicate the 4th defendant for this facility; (2) With regard to the Commerce Facility, the 4th defendant ought not to be held liable because he had relied solely on the paper that was presented by the 1st defendant to BILL’s Board of Directors for the granting of the facility to the borrower; (3) With regard to the ad hoc facility for the USD 200,000.00 and USD 150,000.00 for Commerce Trading, the 4th defendant ought not to be held liable because he was not responsible for the recommendation to the Board of Directors of BILL for the granting of this facility to the borrower; (4) Furthermore, even though the 4th defendant had released the loan of USD 350,000.00 to the borrower, the release was made subject to conditions (see P29) and it was the responsibility of the Corporate Banking Department of BILL to ensure that the conditions were complied with before the moneys were released to the borrower; (5) The above is also applicable to the reduction of the security from a sum of USD 146,000.00 to a sum of USD 74,763.00; (6) With regard to the Crestek Facility, the plaintiff has not implicated the 4th defendant in its statement of claim; and (7) With regard to the Crest Group Facility, the 4th defendant is also not implicated by the plaintiff in its statement of claim. Decision of the Court after the full trial 30. On 16 June 2015, upon the conclusion of the full trial, the Court was satisfied that the plaintiff had proved on a balance of probabilities as follows: “1. All four (4) defendants at all material times owed statutory, common law and/or contractual duties to Bank Islam (L) Ltd (“BILL”); 2. All four (4) defendants had acted in breach of their duties owed to BILL; and 3. BILL had suffered the following losses and damages by reason of the said breaches: (a) In respect of the Faaris facility, damages in the sum of USD 501,379.17 against the 1st defendant; (b) In respect of the Commerce facility, damages in the sum of USD 5,510,287.60 against the 1st, 2nd, 3rd and 4th defendants jointly; (c) In respect of the Crest Group facility, damages in the sum of USD 1,397,964.84 against the 1st and 2nd defendants jointly; and (d) In respect of the Crestek facility, damages in the sum of USD 24,384,068.56 against the 3rd defendant.” 31. Therefore, the Court granted judgment in favour of the plaintiff as follows: “(1) for damages in the sum of USD 501,379.17 against the 1st defendant as claimed by the plaintiff in respect of the Faaris facility; (2) for damages in the sum of USD 5,510,287.60 against the 1st, 2nd, 3rd and 4th defendants jointly being as claimed by the plaintiff in respect of the Commerce facility; (3) damages in the sum of USD 1,397,964.84 against the 1st and 2nd defendants jointly as claimed by the plaintiff in respect of the Crest Group facility; and (4) damages in the sum of USD 24,384,068.56 against the 3rd defendant as claimed by the plaintiff in respect of the Crestek facility.” 32. The Court further ordered the respective defendants to pay to the plaintiff interest on the respective judgment sums as specified above at 5% per annum from the date of judgment until the date of full realization and the costs of this action. 33. The Court then invited the parties to propose the amount of costs to be awarded to the plaintiff by the defendants. 34. The learned plaintiff’s counsel proposed a sum of RM 30,000.00 as cost against the 1st defendant, a sum of RM 30,000.00 as cost against the 2nd defendant, a sum of RM 10,000.00 as cost against the 3rd defendant and a sum of RM 20,000.00 as cost against the 4th defendant. 35. The learned counsel for the 1st and 2nd defendants left the amount of cost to be awarded to the plaintiff to the discretion of the Court. 36. The learned counsel for the 4th defendant also left the amount of cost to be awarded to the plaintiff to the discretion of the Court. 37. The Court then ordered the 1st defendant to pay to the plaintiff a sum of RM 30,000.00 as the cost of the plaintiff’s action, the 2nd defendant to pay to the plaintiff a sum of RM 30,000.00 as the cost of the plaintiff’s action, the 3rd defendant to pay to the plaintiff a sum of RM 10,000.00 as the cost of the plaintiff’s action and the 4th defendant to pay to the plaintiff a sum of RM 20,000.00 as the cost of the plaintiff’s action. Reasons for the decision of the Court 38. The reasons why the Court decided in that manner are as follows: 39. The plaintiff’s claim against the defendants is on the basis that the defendants owed statutory, common law and/or contractual duties to BILL and that the defendants had breached those duties. Issue (1): Whether all the defendants at the material times, owe duties (statutory, common law and/or contractual) to the plaintiff? 40. The Court was of the considered view that based on the facts and the law that is applicable, issue (1) ought to be answered in the affirmative in favour of the plaintiff. The law 41. Under section 92 of the Offshore Companies Act 1990, officers and employees of an offshore company such as BILL, at all material times, owe statutory duties, a common law duty of care and skill and express and/or implied contractual duties to their employer, who is BILL in the instant case. 42. Section 92 of the Offshore Companies Act 1990 provides as follows: “Section 92. Duty and liability of officers. (1) Every officer of an offshore company shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office. (2) An officer of an offshore company shall not make improper use of any information acquired by reason of his office to gain, whether directly or indirectly, an advantage for himself or any other person or to cause detriment to the company. (3) An officer of an offshore company who contravenes this section shall be - (a) liable to the company for any profit made by him and for any damage suffered by the company as a result of such breach; and (b) guilty of an offence against this Act. (4) This section is in addition to and not in derogation of any other written law or rule of law relating to the duty or liability of directors or officers of a company.” 43. In Malayan Banking Bhd v Basarudin bin Ahmad Khan [2007] 1 MLJ 613, the Federal Court allowed the appeal of the Bank-employer against a former employee of the Bank in a claim for damages for breach of contract of employment. The Federal Court held at page 623 that the “employee of the appellant owes a contractual duty of care to the appellant and breach of that duty would render him liable to the appellant in damages for breach of contract. This is the common law right of the appellant as the employer”. 44. In The State of South Australia & Anor v Timothy Marcus Clark [1996] SASC 5499, the Supreme Court of South Australia found the Managing Director and CEO of the State Bank of South Australia liable for negligence and in breach of fiduciary duties in connection with a transaction. On the duty of care owed by the defendant, the Court held at paragraph 157 as follows: “[a]s the chief executive officer and managing director of a large bank, he was obliged to bring to bear an appropriate level of skill having regard to the responsibilities which that office entailed. No doubt, as is the case with all large corporations, it was necessary for him to delegate responsibility for the operation of different functions of the bank, in circumstances where no further oversight could be expected. But he must unquestionably be regarded as responsible for the overall control of the operations of the bank …” and at paragraph 160 that “[t]here is no question but that the requirements of his office imposed upon Mr. Marcus Clark a duty to act in accordance with the highest standards of competence and integrity applicable to the banking industry.” 45. In Malaysia Building Society Berhad v Dato’ Yusuf Sudin [2013] 1 LNS 1284, the Court of Appeal allowed the appeal by the Appellant/employer’s claim for breach of fiduciary duties owed by the respondent/employee which resulted in losses to the appellant. 46. Reverting back to the instant case, the Court was satisfied that the plaintiff has discharged its burden of proving on a balance of probabilities that there were indeed breaches of duties by the respective defendants in respect of the four (4) facilities. The plaintiff has relied on the oral evidence of its witnesses and also the evidence as contained in the documents filed and produced before the Court to prove that the breaches had indeed occurred. 47. In Malaysia Airline System Bhd v Wan Sa’adi @ Syed Sa’adi bin Wan Mustafa [2015] 1 MLJ 757, the Federal Court held at page 771D as follows: “We also find no merit in the complaint of the respondent that the failure by the appellant to call the witnesses who testified during the domestic inquiry had deprived him of the opportunity to cross-examine them. There was nothing to prevent the respondent from calling those witnesses even though the appellant did not call them. Obviously the appellant was satisfied with the evidence it had adduced without having to call those witnesses. …” (Emphasis added). The Faaris Facility 48. The Court shall now deal with the Faaris Facility. 49. The Faaris Facility dated 27 July 2000 was entered into by BILL and Investment Holding Plc (“Faaris”) for USD 485,000.00 in favour of Faaris (see Bundle C, p. 216-276). The sale price for the Faaris Facility is USD 506,098.00 (see Bundle C, p. 216-276, at p. 262). 50. Among the principal terms and conditions of the Faaris Facility were that the facility was to be secured by, inter alia, a 3rd Party Cash Deposit providing 110% security at any one (1) time in the plaintiff or Lembaga Tabung Haji and held on lien to BILL (“the Memorandum of Deposit/Charge”). 51. A Cash Deposit was made by one Dato’ Affifudin bin Haji Omar (“Dato’ Affifudin”) in his Lembaga Tabung Haji account and was charged to BILL (“the Charge over Cash Deposit”). Whether the 1st defendant has breached his duties in respect of the Faaris Facility? 52. Prior to the execution of the security documents to give effect to a change in the security arrangement from the Charge over Cash Deposit to 2,000,000 units of Digi.com Berhad shares belonging to one Kamarudin Jaffar, the 1st defendant signed a letter dated 19 January 2004 addressed to Lembaga Tabung Haji releasing BILL’s charge over Dato’ Affifudin’s account (“the Release of Security”) (see Bundle E, p. 302). What are the losses suffered by the plaintiff? 53. Prior to the Release of Security, the Faaris Facility was secured by the Ringgit Malaysia equivalent of USD 673,115 in Tabung Haji deposit charged to BILL (see Bundle E, p. 338). As at 1 July 2002, there remained RM 2,557,837.79 in Dato’ Affifudin’s Tabung Haji account (see Bundle E, p. 346-347). 54. The security of the Digi.com Berhad shares to be obtained as the replacement security had a market value of USD 1,789,474 (see Bundle E, p. 348-349). Accordingly, had this Digi.com Berhad shares been obtained as security, the plaintiff would have been fully secured for the outstanding amount under the Faaris Facility. 55. The Court found that based on the evidence adduced by the plaintiff, the plaintiff has suffered losses of USD 501,379.17 in respect of the Faaris Facility, which comprise the outstanding Selling Price as at 30 July 2004 of USD 499,647.00 and legal fees incurred of USD 1,732.17 (see Bundle D, p. 1). 56. The Court found that the plaintiff has proven on a balance of probabilities that the person who has caused this loss to the plaintiff is the 1st defendant. Whether the plaintiff took steps to mitigate its loss? 57. The Court was satisfied that the plaintiff had undertaken the following steps to mitigate its losses in relation to the Faaris Facility: (1) Upon default in making instalment payments by Faaris, BILL’s solicitors had sent a letter of demand dated 16 December 2004 to Faaris (see Bundle C, p. 87-88); (2) Numerous telephone calls were made to Faaris to request for the transfer of the Digi.com Berhad shares (see Bundle C, p. 211-212, at p. 211); (3) BILL’s solicitors issued a Notice of Recall of the Faaris Facility dated 9 March 2005 (see Bundle C, p. 213-214); and (4) BILL’s solicitors had sent a letter of demand dated 21 March 2005 for the execution and delivery of the Third Party Memorandum of Charge Over Shares in favour of BILL to replace the Charge over Cash Deposit (see Bundle C, p. 85-86). Whether the plaintiff has discharged its burden of proof against the 1st defendant? 58. Based on the evidence before the Court, the Court was satisfied that the plaintiff has discharged its burden of proof against the 1st defendant with regard to the 1st defendant’s liability towards the plaintiff for the Faaris Facility. The First Commerce Facility 59. The Court shall now deal with the First Commerce Facility. 60. By a Memorandum of Approval dated 5 February 2002, the Management Committee consisting of all defendants recommended for approval to the Board of Directors a USD 4,800,000.00 Al-Ijarah Al-Muntahiah Bit Tamlik facility in favour of Commerce Trading (“First Commerce Facility”) to be secured by inter alia, a joint and several guarantee by Kamaruddin Awang (“Kamaruddin”) and Datuk Hiew Min Yong (“Datuk Hiew”) (see Bundle B, p. 17-29). 61. The recommendation for the First Commerce Facility was tabled at the 9th Credit Meeting of BILL but based on the results of a CTOS search carried out and presented, was then deferred for the Management Committee to obtain clarification on legal proceedings against Kamaruddin and Datuk Hiew and to consider additional securities for the facility (see Bundle B, p. 30). 62. In a letter dated 5 September 2001, Messrs. Zul Rafique & Partners, BILL’s solicitors, had advised BILL in relation to a related facility, Commerce Resources Inc which was also secured inter alia by a joint and several guarantee by Datuk Hiew that there was every danger that Datuk Hiew may be made a bankrupt at any time in view of the fact that a receiving order had already been made against him (see Bundle F, p. 902-904). Whether the 1st, 2nd, 3rd and 4th defendants have breached their duties in respect of the First Commerce Facility? 63. The Management Committee consisting of all defendants, nonetheless, submitted a further recommendation for approval of the First Commerce Facility dated 11 March 2002 (see Bundle B, p. 31-45) based on a letter dated 28 February 2002 from one C. Robertson, the legal counsel of Datuk Hiew, clarifying the legal proceedings against Datuk Hiew (see Bundle F, p. 905-906). 64. At its 38th Board meeting held on 28 March 2002 attended by the 1st and 2nd defendants, the Board of Directors of BILL approved the First Commerce Facility based on the recommendation by the Management Committee with several additional conditions (see Bundle B, p. 46). 65. By an internal memorandum dated 4 April 2002 addressed to the 2nd defendant and copied to the 1st defendant, BILL’s officers recommended to the Management that the signing of the First Commerce Facility agreement be deferred to protect BILL’s interests (see Bundle F, p. 909-911). 66. By another internal memorandum dated 5 April 2002 addressed to the 2nd defendant and copied to the 1st defendant, BILL’s officer expressed concerns regarding, inter alia, the strength of the security in the form of a personal guarantee from Datuk Hiew in view of the fact that a receiving order had been made against him (see Bundle F, p. 912-914). 67. Despite the concerns raised by BILL’s officers, no action was taken by the 1st and 2nd defendants and/or the Management Committee to address these issues. 68. The disbursement of the First Commerce Facility was approved by the Management Committee which included the 1st defendant on 30 April 2002 (see Bundle B, p. 49-60). Whether the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the First Commerce Facility? 69. Based on the evidence before the Court, the Court was satisfied that the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the First Commerce Facility. The Second Commerce Facility 70. The Court shall now deal with the Second Commerce Facility. 71. By a memorandum dated 11 November 2002 signed by the 2nd defendant, a proposal was made to the Finance Exco of BILL for the provision of an ad-hoc Murabahah Working Capital Financing (“MWCF”) facility of USD 200,000.00 to Commerce Trading. The security proposed was, a joint and several guarantee by Kamaruddin and Datuk Hiew, and the placement of USD 146,000.00 in a Mudharabah Investment Account (see Bundle B, p. 61-70). Whether the 1st, 2nd, 3rd and 4th defendants have breached their duties in respect of the Second Commerce Facility? 72. No further checks or clarification were obtained as to the financial status of Datuk Hiew notwithstanding that a receiving order had been made against Datuk Hiew. This issue was not highlighted to the Finance Exco. The proposal for the ad-hoc facility was recommended by the Management Committee comprising all defendants without further questions or reverting back to the Corporate Banking Department for further credit evaluation. 73. On 20 November 2002, the facility was approved by the Finance Exco of BILL which included the 2nd defendant based on this recommendation (see Bundle B, p. 70). 74. By a letter dated 2 January 2003, Commerce Trading requested for an additional amount of USD 150,000.00 over and above the approved amount of USD 200,000.00. This additional facility was again recommended by the 4th defendant upon the same terms and conditions as the USD 200,000.00 MWCF facility without enquiry (see Bundle B, p. 71-75). 75. On 28 January 2003, the additional amount of USD 150,000.00 was approved by the Finance Exco, which included the 1st and 2nd defendants, based on this recommendation (see Bundle B, p. 75 and p. 76-81). 76. Subsequently, on 11 January 2003, the 4th defendant approved a request for disbursal of the full amount of USD 350,000.00 and the same was accordingly disbursed (see Bundle F, p. 915-917). 77. Vide a memorandum from the Corporate Banking Department dated 6 February 2003, it was requested that the Management Committee approve the reduction of the security deposit from USD 146,000.00 to USD 74,736.00, as a sum of USD 72,000.00 from the security deposit had already been used by Commerce Trading to finance the quarterly instalments for the First Commerce Facility (“Reduction of Security”) (see Bundle F, p. 907-908). 78. The request for Reduction of Security was approved by the Management Committee which included the 4th defendant but it was a condition and in accordance with practice and procedure that the Reduction of Security be ratified by the Finance Exco and/or the Board of Directors as approving authority. The ratification was not obtained. 79. Contrary to the terms and conditions upon which the Second Commerce Facility had been approved, the amount in the Mudharabah Investment Account at the time of disbursal was only USD 73,736.00. What are the losses suffered by the plaintiff? 80. The Court found that based on the evidence adduced by the plaintiff, the plaintiff has suffered losses of USD 5,510,287.60 which consists of the judgment sum for the First Commerce Facility of USD 5,150,800.00, the judgment sum of USD 352,240.00 for the Second Commerce Facility, the amounts advanced by BILL on behalf of Commerce Trading in the sum of USD 1,026.34 and costs on a full indemnity basis of USD 6,221.28 (see Bundle D, p. 4). 81. The Court also found that the persons who had caused these losses to the plaintiff are the 1st, 2nd, 3rd and 4th defendants. Whether the plaintiff had taken steps to mitigate its loss? 82. Based on the evidence, the Court found that the plaintiff had undertaken the following steps to mitigate its losses in relation to the Commerce Trading Facility: (1) BILL’s solicitors had sent letters of demand dated 15 June 2004 (see Bundle F, p. 918-920) and 20 October 2004 to Commerce Trading and the guarantors of the Commerce Trading Facility (see Bundle C, p. 281-283); (2) BILL obtained a judgment in relation to the First Commerce Facility on 25 May 2005 in the sum of USD 5,150,800; and (3) BILL obtained a judgment in relation to the Second Commerce Facility on 25 May 2005 in the sum of USD 352,240.00. Whether the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the Second Commence Facility? 83. Based on the evidence before the Court, the Court found that the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the Second Commence Facility. The Crest Group Facility 84. The Court shall now deal with the Crest Group Facility. 85. The Crest Group Facility for USD 11,000,000.00 was granted by BILL on 9 December 2000 to Crest Group Inc. (“the Crest Group”). The Crest Group Facility was to be secured by, inter alia, debentures by subsidiaries of the Crest Ultrasonics Group which was part of the Crest Group (see Bundle E, p. 472-528). 86. By a Memorandum for Approval dated 28 January 2001, a recommendation was submitted by the Management Committee, which included the 1st and 2nd defendants for, inter alia, a change of the security arrangement by cancelling the security of a debenture on the fixed and floating assets of two (2) subsidiaries and requiring a ‘negative pledge’ instead due to tax reasons (see Bundle E, p. 316-319). 87. On 8 March 2001, the proposal for ratification by the Board of Directors of BILL was recommended by the Management Committee which included the 1st and 2nd defendants. The change of security arrangement was, subsequently, ratified by the Board of Directors of BILL at the 33rd Board of Directors’ meeting held on 23 March 2001 (see Bundle E, p. 320-321A). 88. By a letter dated 16 March 2001, BILL’s solicitors, Messrs. Mohamed Ismail & Co. advised that the Crest Group Facility could be disbursed subject to resolution of several outstanding conditions precedent (see Bundle E, p. 322-328). Whether the 1st and 2nd defendants have breached their duties in respect of the Crest Group Facility? 89. Notwithstanding the outstanding conditions precedent, disbursal of the Crest Group Facility was approved by the Management Committee comprising the 1st and 2nd defendants, and the Crest Group Facility was, subsequently, disbursed (see Bundle E, p. 325). 90. To date, the negative pledges have not been executed nor perfected nor have the outstanding conditions precedent been fulfilled. Crest Group, subsequently, defaulted on the repayment of the Crest Group Facility. 91. Hence, the Court was satisfied that the 1st and 2nd defendants have breached their duties in respect of the Crest Group Facility What are the losses suffered by the plaintiff? 92. Pursuant to a Settlement Agreement entered into with Crest Group, the outstanding sum of USD 1,397,964.84 was waived (see Bundle D, p. 2). 93. Based on the evidence, the Court found that this loss was caused to the plaintiff by the 1st and 2nd defendants. Whether the plaintiff had taken steps to mitigate its loss? 94. The Court found that the plaintiff had taken steps to mitigate its loss. BILL’s solicitors had sent numerous reminders, among others, by letters dated 19 June 2002 (stated as “12th Reminder”) (see Bundle C, p. 93-97) and dated 11-7-2002 (stated as “13th Reminder”) (see Bundle C, p. 98) to Crest Group to request for the outstanding conditions precedent. Whether the plaintiff has discharged its burden of proof against the 1st and 2nd defendants in respect of the Crest Group Facility? 95. Based on the evidence, the Court found that the plaintiff has discharged its burden of proof against the 1st and 2nd defendants in respect of the Crest Group Facility. The Crestek Facility 96. The Court shall now deal with the Crestek Facility. 97. On 26 November 1999, the Board of Directors of BILL had approved an Al-Bai Bithaman Ajil facility of USD 20,000,000.00 to Crestek Inc and USD 10,000,000.00 to Crest Group Inc. for the period of three (3) years and the repayment of the principal was a “bullet repayment” at the end of maturity of the facility. The said facilities were to mature on 12 October 2002 and 23 November 2002, respectively (see Bundle E, p. 32 and p. 332-336). 98. A Memorandum for Financing Approval for a USD 30,000,000.00 Al-Bai Bithaman Ajil facility in favour of Crestek (“Crestek Facility”) as an extension of the earlier facilities to Crestek Inc and Crest Group respectively was recommended by the Management Committee which consisted of the 1st and 4th defendants (see Bundle C, p. 124-210). 99. Crestek and BILL entered into a facility agreement dated 19 June 2003 (see Bundle E, p. 529-590). It was a condition precedent that all security documentation must be executed and perfected prior to disbursement of the facility. Whether the 3rd defendant has breached his duties to the plaintiff in respect of the Crestek Facility? 100. Based on the evidence, the Court found that the 3rd defendant has breached his duties to the plaintiff in respect of the Crestek Facility. This is because a pre-disbursement checklist dated 19 June 2003 was also forwarded to the Management Committee for their review and their approval disclosing several outstanding condition precedents (see Bundle C, p. 114-123). 101. However, the Memorandum for Approval of Disbursement was approved singly by the 3rd defendant, instead of by two (2) members of the Management Committee (see Bundle C, p. 113). What are the losses suffered by the plaintiff? 102. Based on evience, it is undisputed that Crestek, subsequently, defaulted on the repayment of the facility. Pursuant to a Settlement Agreement entered into with Crestek, the outstanding sum of USD 24,384,068.56 was waived (see Bundle D, p.3). 103. Hence, the plaintiff has claimed for this amount against the 3rd defendant. Whether the plaintiff has discharged its burden of proof against the 3rd defendant in respect of the Crestek Facility? 104. Based on the evidence, the Court found that the plaintiff has discharged its burden of proof against the 3rd defendant in respect of the Crestek Facility. Additional issue (1): Whether the Court ought to apportion liability between the 4 (four) defendants and the Board of Directors of BILL and/or the plaintiff? 105. Since none of the defendants has pleaded contributory negligence, the Court cannot grant any apportionment of liability. Hence, the Court found for the plaintiff in respect of the plaintiff’s claims for the whole amount of the losses suffered against the respective defendants (see Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas & Anor [1995] 2 MLJ 276 where the Court held at 283F as follows: “… apportionment of liability cannot be granted when contributory negligence was not pleaded by the appellants - see the case of Hamizan bin Abd Haid v Wong Kok Keong & Anor [1994] 3 MLJ 630.” 106. In Hamizan bin Abd Hamid v Wong Kok Keong [1994] 3 MLJ 630, the Court held at page 634E as follows:- “Though the common law position is somewhat altered, the principle of contributory negligence as a defence does not seem to have changed. It is still required to be pleaded by the defendant and, failure to do is fatal to the defence even though contributory negligence on the part of the plaintiff is found to exist. The decision of Fookes v Slayton [1979] 1 All ER 137; [1978] 1 WLR 1293 supports this principle. In this case, the English Court of Appeal held that the trial judge had erred in awarding damages based on contributory negligence of the claimant when the defendant did not even file his defence or appeared in court. The award was reversed by the Court of Appeal and altered to a 100% liability against the Defendant. Fookes v Slayton has been accepted in our courts for some time and, in fact it was reiterated by KC Vohrah J in the case of Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313.” and further at 635C, “From the aforesaid authorities, one element is certain and that is, the issue of contributory negligence must be brought to the court’s consideration before it can be deliberated. If it is not, then apportionment of liability based on contributory negligence of the claimant cannot succeed. In a vast majority of cases where the cause of action is based on negligence, the defence normally pleads contributory negligence in their statement of defence. Once this is pleaded, it becomes an issue before the court which requires the court’s consideration. As it has become an issue, there is no necessity for the plaintiff to plead the same. However, if the defendant does not plead contributory negligence in his defence, it does not become an issue before the court. In such an event, if the plaintiff is able to prove any degree of negligence against the defendant, he will succeed in his case despite the fact that he may have contributed towards it. He will be entitled to damages based on a 100% liability. The cases of Fookes v Slayton and Anuar bin Mat Amin v Abdullah bin Mohd Zain support this principle. …” (Emphasis added). 107. Based on the above authorities that were cited by Mr. Oommen Koshy, the plaintiff’s learned counsel, the Court agreed with and accepted the plaintiff’s submissions that since the Court is satisfied that the plaintiff has succeeded in proving liability on the part of the defendants, the plaintiff is entitled to damages based on a 100% liability against the, respective, defendants. 108. Further, since the defendants are attempting to shift the blame to the members of the Board of Directors of BILL, it was incumbent upon the defendants to ensure that the relevant members of the Board of Directors were added as third parties or co-defendants in this suit. Here, only the 4th defendant has issued indemnity proceedings against the 1st and 2nd defendants. For the rest of the defendants, it is too late to raise this issue now. 109. In Dr Aishah Tul Radziah bt L Hussin v Dr Suresh a/l Kumarasamy & Ors [2014] 11 MLJ 702, the Court held at page 726D as follows:- “As a matter of fairness, fairplay and justice, since Dr Aishah had shifted the blamce to HPP and its doctors in the first suit, she should have joined HPP and its doctors either as third parties or co-defendants in the first suit and thereafter made all necessary interlocutory applications by way of further and better particulars or discovery or interrogatories. In the result, I am impelled to the view that everything that is being articulated against HPP and its doctors in the present suit could have been done in the first suit. In my view, in the circumstances of the situation which prevailed in the first suit and in particular having regard to Dr Aishah’s trial strategy of shifting the blame to HPP and its doctors, it was incumbent upon Dr Aishah to ensure that HPP and its doctors were added as third parties or co-defendants in the first suit. …” (Emphasis added). Additional issue (2): Who bears the burden of proof on mitigation of losses that are claimed by the plaintiff? 110. The 1st and 2nd defendants have raised the issue of “follow-up” during cross-examination of the plaintiff’s witnesses and as an alternative defence in the 1st and 2nd defendants’ submissions (see the 1st and 2nd defendants’ Written Submissions, pages 16-18, paragraphs 32-36) in alleging that the losses suffered by the plaintiff could have been averted had “follow-up” actions been taken by BILL. 111. Nevertheless, the Court agreed with and accepted the plaintiff’s submissions that it is trite law that the burden of proving grounds for mitigation rests on the defendants and the defendants have failed to discharge this burden as the defendants did not lead any evidence of fact in mitigation of damages. 112. In Leong Yoong v Lee Sem Yoong [1968] 2 MLJ 72, the Federal Court held at page 76I (right) as follows:- “The damages suffered by the respondent in this case are by no means remote. The respondent said in his oral evidence that he had told the appellant that he wanted to sell the land. There has been no denial of that allegation. If there were grounds for mitigation it was for the appellant to have alleged and proved them:- ‘The question of what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law, but one of fact in the circumstances of each case, the burden of proof being upon the defendant’ (see Halsbury, vol. 11, (3rd Ed.), para. 476, age 290). In the present action the appellant has not pleaded or proved any fact in mitigation of damages. … The appeal is dismissed with costs …” (Emphasis added). 113. In any event, the Court found that the plaintiff was only vested with the assets and undertakings of BILL pursuant to the Vesting Order in 2006. Prior to that, the day-to-day management of BILL was under the purview of the defendants themselves, either as members of the Management Committee or as the CEO of BILL. Therefore, the Court agreed and accepted the plaintiff’s submission that this is not an issue which should prevent the plaintiff from succeeding in a claim for damages against the defendants. Additional issue (3): Whether the non-calling of the members of the Board of Directors of BILL and/or the plaintiff as witnesses is fatal to the plaintiff’s claim? 114. In Malaysia Building Society Berhad v Dato’ Yusuf Sudin [2013] 1 LNS 1284, it can be seen from the Grounds of Judgment that one of the members of the Appellant’s Board of Directors testified as a witness on behalf of the Appellant. However, the calling of the member of the Board of Directors concerned may have been necessary in that case as the sole complaint of the Appellant was that the Respondent caused the Appellant to enter into loan agreements despite not getting the approval from the Board of Directors. This is not the situation in the present case. 115. In any event, the Court was of the considered view that the non-calling of the members of the Board of Directors of BILL as witnesses is not fatal to the plaintiff’s claim. This is because the issue that none of the members of the Board of Directors of BILL was called as the plaintiff’s witnesses was never raised by any of the defendants during the trial. Even then, it was open to any of the defendants to call them as witnesses, but none did. Conclusion 116. In the premises, based on the reasons as set out above, the Court found follows: (1) That all four (4) defendants at all material times owed statutory, common law and/or contractual duties to BILL; (2) That all four (4) defendants had acted in breach of their duties owed to BILL; and (3) That BILL had suffered losses and damages by reason of the said breach: (a) In respect of the Faaris Facility, damages in the sum of USD 501,379.17 against the 1st defendant; (b) In respect of the Commerce Facility, damages in the sum of USD 5,510,287,60 against the 1st, 2nd, 3rd and 4th defendants jointly; (c) In respect of the Crest Group Facility, damages in the sum of USD 1,397,964.84 against the 1st and 2nd defendants jointly; and (d) In respect of the Crestek Facility, damages in the sum of USD 24,384,068.56 against the 3rd defendant. 117. Therefore, the decision and orders of the Court in favour of the plaintiff and against the defendants are in order. Dated: 6 April 2016 (DATUK SU GEOK YIAM) Judge High Court Civil NCvC 11 Kuala Lumpur COUNSELS 1. Mr. Oommen Koshy and Miss Eyza Farizan Mokhtar, the learned counsels for the plaintiff at: Messrs. Skrine Advocates & Solicitors Unit No. 50-8-1, 8th Floor Wisma UOA Damansara 50, Jalan Dungun Damansara Heights 50490 Kuala Lumpur 2. Mr. Azhar Arman Ali and Miss Elly Azrin Khalid, the learned counsels for the 1st and 2nd defendants at: Messrs. Arman-Yunos Advocates & Solicitors No. 3-5, Jalan 15/48A Off Jalan Sentul 51000 Kuala Lumpur 3. Mr. Mohd Mohyiddin bin Mohamad Mesbah, the learned counsel for the 4th defendant at: Messrs. Mohyiddin & Co. Advocates & Solicitors 284-1B, Jalan Haruan 5/7 Pusat Commercial Oakland II Seremban 2 70300 Seremban CASE REFERENCE: 1. Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas & Anor [1995] 2 MLJ 276. 2. Hamizan bin Abd Hamid v Wong Kok Keong [1994] 3 MLJ 630. 3. Dr Aishah Tul Radziah bt L Hussin v Dr Suresh a/l Kumarasamy & Ors [2014] 11 MLJ 702. 4. Malayan Banking Bhd v Basarudin bin Ahmad Khan [2007] 1 MLJ 613. 5. The State of South Australia & Anor v Timothy Marcus Clark [1996] SASC 5499. 6. Malaysia Building Society Berhad v Dato’ Yusuf Sudin [2013] 1 LNS 1284. 7. Malaysia Airline System Bhd v Wan Sa’adi @ Syed Sa’adi bin Wan Mustafa [2015] 1 MLJ 757. 8. Leong Yoong v Lee Sem Yoong [1968] 2 MLJ 72. LEGISLATION REFERENCE: 1. S 92 of the Offshore Companies Act 1990. 2. S 114 (g) of the Evidence Act 1950. 39

Tika 2.6.0

S-22-287-2009

PLAINTIF BANK ISLAM MALAYSIA BERHAD DEFENDAN 1. MOHAMAD NAJIB BIN SHAHARUDDIN 2. RAJA ZAINAL ALAM SHAH BIN RAJA ABDULLAH OMAR 3. ABDUL AZIZ BIN ISMAIL 4. ISHAK BIN YAHYA

06/04/2016

YA DATUK SU GEOK YIAM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2c362816-7875-4405-bf9a-ace14cf692b9&Inline=true

DALAM MAHKAMAH TINGGU MALAYA DI KUALA LUMPUR IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA CIVIL SUIT NO: S-22-287-2009 BETWEEN BANK ISLAM MALAYSIA BERHAD ... PLAINTIFF AND 1. MOHAMAD NAJIB BIN SHAHARUDDIN 2. RAJA ZAINAL ALAM SHAH BIN RAJA ABDULLAH OMAR 3. ABDUL AZIZ BIN ISMAIL 4. ISHAK BIN YAHYA … DEFENDANTS GROUNDS OF JUDGMENT (No. 2) Background 1. The plaintiff is a public company incorporated under the Companies Act 1965. 2. The plaintiff owns a subsidiary, namely Bank Islam (Labuan) Ltd (“BILL”). BILL was incorporated under the Offshore Companies Act 1990. 3. BILL was granted a licence by the Labuan Offshore Statutory Authority (“LOFSA”) to carry out offshore banking business in Labuan. 4. The Chief Executive Officer (“CEO”) and the Chief Operating Officer (“COO”) of BILL were responsible for the management and operation of BILL. 5. Mohamad Najib Bin Shaharuddin, the 1st defendant, was the COO from 1 January 2000 and the CEO from 1 January 2003. Subsequently, the 1st defendant was appointed as the director of BILL at the 54th Board of Directors’ meeting on 25 June 2003. 6. Raja Zainal Alam Shah Bin Raja Abdullah Omar, the 2nd defendant, was the CEO of BILL from 1 May 1997 i.e. prior to the 1st defendant’s tenure of office as the CEO from 1 January 2003. 7. Between July 2000 and August 2004, the 2nd defendant served as a member of the Board of Directors of BILL. 8. At all material times, Abdul Aziz Bin Ismail, the 3rd defendant, was an employee of BILL and served as the Head of the Operations Department of BILL from 1 October 2000. 9. Ishak Bin Yahya, the 4th defendant, joined the plaintiff as a bank officer on March 1984. In April 2001, he was transferred to BILL. 10. At all material times, the 4th defendant, was an employee of BILL and served as the Head of the I.T. and Finance Department of BILL from April 2001 until 2005. 11. At all material times, there was a Management Committee (“MC”) in BILL. The role of the MC was, inter alia, to consider and to recommend credit facilities to the Board of Directors for the latter’s approval. 12. The 1st, 2nd and 4th defendants were appointed as members of the MC. Subsequently, the 1st and 2nd defendants also held the post of the Chairman of the MC at different times. 13. The 3rd defendant, as a member of the MC, was also involved in the performance and discharge of the functions and role of the MC i.e. the recommendation of loans and their disbursal for the approval of the Board of Directors. 14. On 10 December 2004, the High Court ordered all the undertakings and the assets of BILL to be vested in the plaintiff. 15. According to the plaintiff, at all material times, the defendants’ in their capacity as the employees of BILL owe to BILL statutory duties under section 92 of the Offshore Companies Act 1990, a common law duty of care and skill and express and/or implied contractual duties. Plaintiff’s suit 16. In this suit, the plaintiff is claiming for damages against the defendants for losses suffered as a result of their breaches of duties in respect of four credit facilities. The four credit facilities 17. The four credit facilities are as follows: (1) the Farris facility; (2) the Commerce Trading facility; (3) the Crest Group facility; and (4) the Crestek facility; The Farris facility 18. The briefs facts of this facility are as follows: (1) This facility was granted by BILL to Farris. (2) It is an Al-Bithaman Ajil facility for USD$ 485,000.00. One of the securities required under the facility comprised a 3rd party Cash Deposit. It provided 100% security and the Cash Deposit was made by one Dato' Afifudin bin Haji Omar. (3) The facility was recommended by the MC to BILL’s Board of Directors and the facility was disbursed to Farris. (4) Prior to the execution of the security documents, the 1st defendant signed a letter which was addressed to Tabung Haji. The letter instructed Tabung Haji to release the plaintiff’s charge over Dato' Afifuddin’s account with Lembaga Tabung Haji. (5) However, the charge over the security i.e. the Cash Deposit, was never perfected. Hence, the Farris facility was unsecured since 19 January 2004 (6) Subsequently, Farris defaulted on the repayment of the facility. (7) The plaintiff’s claim is against the 1st defendant. The Commerce Trading facility 19. The brief facts of this facility are as follows: (1) The facility was recommended by the MC and approved by the Board of Directors of BILL to Commerce Trading and disbursement was made to Commerce Trading. (2) While they were in the MC, all the defendants recommended to BILL’s Board of Directors for the latter’s approval, a USD$ 4,800,000.00 Al-Ijarah Al-Muntahiah Bit Tamlik facility in favour of Commerce Trading. (3) The defendants proposed to BILL’s Board of Directors that the facility be secured by joint and several guarantees to be given by one Kamaruddin Awang and one Datuk Hiew (the “2 guarantors) even though Datuk Hiew was not an appropriate guarantor for the facility. (4) Subsequently, Commerce Trading defaulted on the repayment of the facility. (5) The plaintiff also failed to recover the amounts owed by Commerce Trading to BILL from the two guarantors. (6) The plaintiff’s claim is against all the defendants. The Crest Group facility 20. The brief facts of this facility are as follows: (1) This is a Master Al Bai Bithaman Ajil facility which was granted by BILL to the Crest Group. (2) The facility was to be secured by two debentures i.e. one on the fixed and floating assets of Martin Walter Ultrashllteknik AG and another on the fixed and floating assets of Rinco Ultrasonics AG (the “2nd securities). (3) A change of security arrangement was later recommended and approved whereby the 2 securities were cancelled and replaced by a negative pledge. (4) Nevertheless, notwithstanding that the negative pledge was not obtained, the 1st and 2nd defendants approved the disbursal of the facility to the Crest Group. (5) Subsequently, the Crest Group defaulted on the repayment of the facility to BILL. (6) The plaintiff’s claim is against the 1st and 2nd defendants. The Crestek facility 21. The brief facts of this facility are as follows: (1) This is a facility which was granted by BILL to Crestek. (2) Contrary to the practice of BILL, the 3rd defendant prepared the Memorandum of Financing Approval to Crestek which approved the disbursal of the facility. (3) Subsequently, Crestek defaulted on the repayment of the facility. (4) The plaintiff’s claim is against the 3rd defendant. Documents filed by the parties for use in the full trial 22. The parties have filed the following documents for use in the full trial pursuant to the directions given by the Court during case management proceedings: (1) Bundle of Pleadings (enclosure (39A)); (2) Bundle of Documents in 4 volumes; (3) Summary of case (plaintiff) (enclosure (39B)); (4) Summary of case (4th defendant) (enclosure (40A)); (5) Summary of case (1st and 2nd defendants) (enclosure (42)). (6) Agreed Facts (enclosure (45)); (7) Issues to be tried (enclosure (46)); (8) Plaintiff’s Opening Statement (enclosure (44)); (9) List of 4 (four) Witnesses (plaintiff) (enclosure (47)); (10) List of 2 (two) Witnesses (1st and 2nd defendants) (enclosure (43)); (11) List of 1 (one) Witness (4th defendant) (enclosure (48)); (12) 4 Witness Statements (plaintiff) (enclosures (58), (59), (60) and (61)); (13) 1 Witness Statement (4th defendant) (enclosure (56)); and (14) 2 Witness Statements (1st and 2nd defendants) (enclosures (65) and (66)). Issues for the determination of the Court 23. The parties have framed the following 3 (three) issues for the determination of the Court: (1) Whether all the defendants at the material times, owe duties (statutory, common law and/or contractual) to the plaintiff? (2) Whether all the defendants had, at all material times, acted in breach of their duties owed to the plaintiff? and (3) Whether the plaintiff has suffered loss and/or damage by reason of the defendants’ breaches of their statutory, common law and/or contractual duties and, if so, what is the quantum of such loss and/or damage? Additional issues for the determination of the Court 24. The Court has framed the following 3 (three) additional issues for the determination of the Court, which have arisen as a result of the submissions of the parties on the 3 (three) issues as set out above: (1) Whether the Court ought to apportion liability between the 4 (four) defendants and the Board of Directors of BILL and/or the plaintiff? (2) Whether the non-calling of the members of the Board of Directors of BILL and/or the plaintiff as witnesses is fatal to the plaintiff’s suit and claims against the 4 (four) defendants? (3) Who bears the burden of proof on mitigation of losses that are claimed by the plaintiff? The full trial 25. The parties called 7 (seven) witnesses altogether. 26. The plaintiff called 4 (four) witnesses. They are as follows: (1) Mdm. Maria binti Mat Said, the Company Secretary and Head of Legal and Secretarial of the plaintiff, who had joined the plaintiff on 1 August 2005 and whose evidence is based on documents and records maintained by the plaintiff to which she has access, as PW1; (2) Mr. Suffian bin Ariffin, who, at the material time, was assigned to the Capital Market and Syndication Unit under the Corporate Banking Department of BILL, as PW2; (3) Mr. Mohamed bin Jusoh, the Investigating Officer from the Special Investigations Unit of the plaintiff since 2007, as PW3; and (4) Mr. Nurulzahar bin Ghazali, the present Assistant General Manager of the Business Support Division of the plaintiff, who had joined the plaintiff on 6 June 2005, whose evidence is based on his personal knowledge and also the documents of the plaintiff to which he has full access, as PW4. 27. The defendants called 3 (three) witnesses. They are as follows: (1) Mr. Mohamad Najib bin Shaharuddin, the 1st defendant himself, who had commenced his employment with the plaintiff in 1986 and who was transferred to BILL in 1997, as DW1; (2) Mr. Raja Zainal Alam Shah bin Raja Abdullah Omar, the 2nd defendant himself, who had commenced his employment with the plaintiff on 16 December 1996 as a bank officer, and who was tasked with the setting up of BILL and who was transferred to BILL in June 1997, after BILL was set up and had commenced operations, as DW2; and (3) Mr. Ishak bin Yahaya, the 4th defendant himself, who had commenced his employment with the plaintiff on 15 March 1984 as a bank officer and in April 2001, he reported for duty in BILL and about 3 to 4 months later he was appointed as one of the members of the Management Committee of BILL, as DW3. 1st and 2nd defendants’ submissions 28. Encik Azhar Arman Ali, the learned counsel for the 1st and 2nd defendants, submitted that the plaintiff’s claim against the 1st and 2nd defendants ought to be dismissed based on the following reasons: (1) He relied on clause 1 of the Supplementary Agreement, which was drafted by the legal advisors of BILL, (at Bundle E, p. 304) which states as follows: “In consideration of the Customer procuring the said Third Party Memorandum of Charge Over Shares in favour of the Bank, the Bank hereby agrees to release the Memorandum Of Deposit with effect from the date hereof.” (2) Based on the wordings of clause 1 as set out above, it seems that BILL’s own legal adviser, i.e. Messrs. Mohamed Ismail & Co, had found it safe to allow BILL to immediately release the Tabung Haji deposit “with effect from the date hereof”, when Messrs. Mohamed Ismail & Co themselves had known fully well that the Memorandum of Charge Over Shares i.e. of Digi.com Bhd, was yet to be perfected. This is because Bambang Sugeng had not executed the Memorandum of Charge Over Shares. This knowledge is clear from recital D of the Supplementary Agreement, which states that the Memorandum of Charge Over Shares was “to be executed by Bambang Sugeng in favour of the Bank”; (3) It is worth noting that Messrs. Mohamed Ismail & Co. was not a legal firm which was called in at the last minute to draft the Supplementary Agreement without knowledge of the background facts. Messrs. Mohamed Ismail & Co. was duly engaged by BILL as its legal counsel at the inception of the Faaris Facility in the year 2000. BILL’s own papers dated 14 July 2000 (see Bundle E, p. 297) states clearly that Messrs. Mohamed Ismail & Co was the ‘Financier’s Legal Counsel’ for this loan transaction. It is safe to assume that Messrs. Mohamed Ismail & Co’s had full knowledge of the Faaris Facility and its securities; (4) If BILL’s own legal advisor (i.e. Messrs. Mohamed Ismail & Co.) had deemed it all right to release the Tabung Haji deposit even though Bambang Sugeng had not executed the Memorandum of Charge over the Digi.com Bhd’s shares, why would the blame be placed on the 1st defendant for authorizing the release of the Tabung Haji deposit?; (5) By virtue of executing the Supplementary Agreement (on 26 January 2004), an agreement which was prepared and advised upon by Messrs. Mohamed Ismail & Co., the 1st defendant had no choice but to authorize the release of the Tabung Haji deposit. The words in clause 1 of the Supplementary Agreement are crystal clear. These are i.e. “... the bank hereby agrees to release the Memorandum of Deposit with effect from the date hereof”; (6) Since the undated Supplementary Agreement was actually executed on 26 January 2004 (a fact which PW4 himself had agreed), and in the absence of any documentary evidence to show the actual date Tabung Haji received the release letter, we have to assume that the release of the deposit was made on or after 26 January 2004; (7) In the light of the Supplementary Agreement drafted by BILL’s own legal counsel, authorizing an early release, i.e. prior to the execution of the Memorandum of Charge over the Digi.com Bhd’s shares, the 1st defendant had done nothing wrong in the circumstances; (8) The plaintiff’s only witness who testified on this issue was PW3. PW3 claimed that he was an internal investigator appointed to investigate the alleged irregularities in approving the Commerce Trading Facility; (9) His evidence is highly suspect. First and foremost, there was no document whatsoever to corroborate his appointment to investigate. His authority to investigate, functions and scope of investigation, remains a mystery; (10) It is inconceivable for the plaintiff (as a licensed bank) to authorize an investigation of an alleged irregularity without any documentation (since none was tendered in evidence). There was also no report of the so-called investigation, made or produced in Court; (11) PW3 also gave conflicting testimonies in Court. In his evidence-in-chief (i.e. in his witness statement, P30) he said he investigated the Commerce Trading Facility. In cross-examination, PW3 agreed to the suggestion that he investigated the defendants but did not make any conclusion because he found that the 1st and 2nd defendants were not at fault. However, in re-examination, PW3 said that he did not investigate the 1st and 2nd defendants at all; (12) It would be wrong in law and in fact to find liability on the part of the 1st and 2nd defendants based on the suspicious evidence of PW3. This is bearing in mind that PW3 is the only witness for the plaintiff in respect of the Commerce Trading Facility; (13) The presumption in section 114 (g) of the Evidence Act 1950 ought to apply against the plaintiff in respect of PW3 in that, the investigation documents (if any), such as any letter of appointment or notes of investigations, if produced, will adversely affect the plaintiff’s case against the 1st and 2nd defendants; (14) Much like the Faaris Facility, the plaintiff also failed to prove, on the balance of probabilities, that the plaintiff had taken the necessary steps to enforce the various securities under the Commerce Trading Facility when the facility was in default. There was no evidence that the plaintiff attempted to enforce any security under the Commerce Trading facility when the same was in default; (15) The plaintiff also failed to prove that the loan default and the amount outstanding under the Commerce Trading Facility was a consequence of the failure to determine Datuk Hiew’s financial status. Hence, the plaintiff’s loss is not caused by the 1st and 2nd defendants and the damage is remote; (16) The ad hoc facility for USD 200,000.00 was also governed by various collaterals. It would be grossly unjust to blame the 1st and 2nd defendants (solely on the issue of Datuk Hiew’s status) when the plaintiff had the benefit of all the other collaterals. The failure of Commerce Trading to repay its loan and the failure of the plaintiff to enforce the available securities diligently were the probable causes that the loan remained outstanding and it has nothing to do with Datuk Hiew’s financial status; (17) In respect of the Crest Group Facility, the plaintiff’s case rests solely on the failure to secure a certain ‘negative pledge’ but it is important to note the evidence of PW4 when he said (in cross-examination) that a ‘negative pledge’ is in fact a reduction in security (compared to a debenture). In essence, the conversion of the originally intended security i.e. from a debenture to a ‘negative pledge’, is effectively reducing the net value of the security. Therefore, taking into consideration all the other securities and collaterals under this facility, and on the balance of probabilities, the ‘negative pledge’ should not be regarded as a ‘deal breaker’; (18) Since none of the members of the Board of Directors (past and present) was called to give evidence for the plaintiff it would be wrong to assume that the action taken by the Board of Directors of BILL would be any different if the ‘negative pledge’ was not obtained; (19) Further, Messrs. Mohamed Ismail & Co. was engaged to carry out its duties to secure the ‘negative pledge’ and there was no evidence of any follow-up action on the matter; (20) Similar with the other facilities discussed above (like the Commerce Trading Facility, for example) there were other ample securities to cover the plaintiff’s risk in the event of default; (21) In this case, the plaintiff had adduced evidence of a loan settlement between the plaintiff and the borrower (i.e. Crest Group) for a sum of RM RM 8,049,980.00. In such a situation, it would be wrong to impose any finding of liability on the defendants, especially, when there is no longer any amount outstanding under the Crest Group Facility because the settlement is a full settlement and the total outstanding balance is recorded as nil in the the statement of account as at 7 October 2013 (see Bundle D, page 2); (22) There is no evidence adduced at trial of any written contract of employment for both the 1st and 2nd defendants. Hence, it would be wrong in law and in fact to speculate the exact contractual obligations of these defendants, in the circumstances of the above loan facilities. There was also no evidence of the industry practice in the given circumstances. Therefore, the case for a breach of contract against the 1st and 2nd defendants is not made out; (23) Hence, the plaintiff has failed to prove that the 1st and 2nd defendants were, in fact and in law, negligent or that they have breached their, respective, employment contracts or that they have breached the provisions of section 92 of the Offshore Companies Act 1990; (24) On the contrary, the failures of the, respective, borrowers, (namely, Faaris and Commerce Trading, bearing in mind that Crest Group had made payment and there is no amount outstanding), to repay their loans were not caused by the alleged failures of the 1st and 2nd defendant. This is because the failure to repay is a distinct issue quite separate from the issue concerning the alleged failures of the 1st and 2nd defendants to perform and fulfil their duties to BILL. The failure to repay coupled with the fact that there is no evidence of recovery or the enforcement of available securities were the likely causes why the loans were outstanding. In other words, there was no causal connection between the alleged negligence of the 1st and 2nd defendants and the alleged damage suffered by the plaintiff; (25) The evidence of the plaintiff’s key witnesses (PW3 and PW4) left a lot to be desired and none of the members of the Board of Directors of BILL or the plaintiff was called to give evidence; and (26) Therefore, on the balance of probabilities, there was no negligence, breach of contract and/or breach of statute on the part of the 1st and 2nd defendants. 4th defendant’s submissions 29. Encik Mohd Mohyiddin bin Mohd. Mesbah, the learned counsel for the 4th defendant, submitted that the plaintiff’s suit and claims against the 4th defendant ought to be dismissed with cost based on the following reasons: (1) With regard to the Faaris Facility, the 4th defendant was not involved at all and the plaintiff’s witnesses has not adduced any evidence to implicate the 4th defendant for this facility; (2) With regard to the Commerce Facility, the 4th defendant ought not to be held liable because he had relied solely on the paper that was presented by the 1st defendant to BILL’s Board of Directors for the granting of the facility to the borrower; (3) With regard to the ad hoc facility for the USD 200,000.00 and USD 150,000.00 for Commerce Trading, the 4th defendant ought not to be held liable because he was not responsible for the recommendation to the Board of Directors of BILL for the granting of this facility to the borrower; (4) Furthermore, even though the 4th defendant had released the loan of USD 350,000.00 to the borrower, the release was made subject to conditions (see P29) and it was the responsibility of the Corporate Banking Department of BILL to ensure that the conditions were complied with before the moneys were released to the borrower; (5) The above is also applicable to the reduction of the security from a sum of USD 146,000.00 to a sum of USD 74,763.00; (6) With regard to the Crestek Facility, the plaintiff has not implicated the 4th defendant in its statement of claim; and (7) With regard to the Crest Group Facility, the 4th defendant is also not implicated by the plaintiff in its statement of claim. Decision of the Court after the full trial 30. On 16 June 2015, upon the conclusion of the full trial, the Court was satisfied that the plaintiff had proved on a balance of probabilities as follows: “1. All four (4) defendants at all material times owed statutory, common law and/or contractual duties to Bank Islam (L) Ltd (“BILL”); 2. All four (4) defendants had acted in breach of their duties owed to BILL; and 3. BILL had suffered the following losses and damages by reason of the said breaches: (a) In respect of the Faaris facility, damages in the sum of USD 501,379.17 against the 1st defendant; (b) In respect of the Commerce facility, damages in the sum of USD 5,510,287.60 against the 1st, 2nd, 3rd and 4th defendants jointly; (c) In respect of the Crest Group facility, damages in the sum of USD 1,397,964.84 against the 1st and 2nd defendants jointly; and (d) In respect of the Crestek facility, damages in the sum of USD 24,384,068.56 against the 3rd defendant.” 31. Therefore, the Court granted judgment in favour of the plaintiff as follows: “(1) for damages in the sum of USD 501,379.17 against the 1st defendant as claimed by the plaintiff in respect of the Faaris facility; (2) for damages in the sum of USD 5,510,287.60 against the 1st, 2nd, 3rd and 4th defendants jointly being as claimed by the plaintiff in respect of the Commerce facility; (3) damages in the sum of USD 1,397,964.84 against the 1st and 2nd defendants jointly as claimed by the plaintiff in respect of the Crest Group facility; and (4) damages in the sum of USD 24,384,068.56 against the 3rd defendant as claimed by the plaintiff in respect of the Crestek facility.” 32. The Court further ordered the respective defendants to pay to the plaintiff interest on the respective judgment sums as specified above at 5% per annum from the date of judgment until the date of full realization and the costs of this action. 33. The Court then invited the parties to propose the amount of costs to be awarded to the plaintiff by the defendants. 34. The learned plaintiff’s counsel proposed a sum of RM 30,000.00 as cost against the 1st defendant, a sum of RM 30,000.00 as cost against the 2nd defendant, a sum of RM 10,000.00 as cost against the 3rd defendant and a sum of RM 20,000.00 as cost against the 4th defendant. 35. The learned counsel for the 1st and 2nd defendants left the amount of cost to be awarded to the plaintiff to the discretion of the Court. 36. The learned counsel for the 4th defendant also left the amount of cost to be awarded to the plaintiff to the discretion of the Court. 37. The Court then ordered the 1st defendant to pay to the plaintiff a sum of RM 30,000.00 as the cost of the plaintiff’s action, the 2nd defendant to pay to the plaintiff a sum of RM 30,000.00 as the cost of the plaintiff’s action, the 3rd defendant to pay to the plaintiff a sum of RM 10,000.00 as the cost of the plaintiff’s action and the 4th defendant to pay to the plaintiff a sum of RM 20,000.00 as the cost of the plaintiff’s action. Reasons for the decision of the Court 38. The reasons why the Court decided in that manner are as follows: 39. The plaintiff’s claim against the defendants is on the basis that the defendants owed statutory, common law and/or contractual duties to BILL and that the defendants had breached those duties. Issue (1): Whether all the defendants at the material times, owe duties (statutory, common law and/or contractual) to the plaintiff? 40. The Court was of the considered view that based on the facts and the law that is applicable, issue (1) ought to be answered in the affirmative in favour of the plaintiff. The law 41. Under section 92 of the Offshore Companies Act 1990, officers and employees of an offshore company such as BILL, at all material times, owe statutory duties, a common law duty of care and skill and express and/or implied contractual duties to their employer, who is BILL in the instant case. 42. Section 92 of the Offshore Companies Act 1990 provides as follows: “Section 92. Duty and liability of officers. (1) Every officer of an offshore company shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office. (2) An officer of an offshore company shall not make improper use of any information acquired by reason of his office to gain, whether directly or indirectly, an advantage for himself or any other person or to cause detriment to the company. (3) An officer of an offshore company who contravenes this section shall be - (a) liable to the company for any profit made by him and for any damage suffered by the company as a result of such breach; and (b) guilty of an offence against this Act. (4) This section is in addition to and not in derogation of any other written law or rule of law relating to the duty or liability of directors or officers of a company.” 43. In Malayan Banking Bhd v Basarudin bin Ahmad Khan [2007] 1 MLJ 613, the Federal Court allowed the appeal of the Bank-employer against a former employee of the Bank in a claim for damages for breach of contract of employment. The Federal Court held at page 623 that the “employee of the appellant owes a contractual duty of care to the appellant and breach of that duty would render him liable to the appellant in damages for breach of contract. This is the common law right of the appellant as the employer”. 44. In The State of South Australia & Anor v Timothy Marcus Clark [1996] SASC 5499, the Supreme Court of South Australia found the Managing Director and CEO of the State Bank of South Australia liable for negligence and in breach of fiduciary duties in connection with a transaction. On the duty of care owed by the defendant, the Court held at paragraph 157 as follows: “[a]s the chief executive officer and managing director of a large bank, he was obliged to bring to bear an appropriate level of skill having regard to the responsibilities which that office entailed. No doubt, as is the case with all large corporations, it was necessary for him to delegate responsibility for the operation of different functions of the bank, in circumstances where no further oversight could be expected. But he must unquestionably be regarded as responsible for the overall control of the operations of the bank …” and at paragraph 160 that “[t]here is no question but that the requirements of his office imposed upon Mr. Marcus Clark a duty to act in accordance with the highest standards of competence and integrity applicable to the banking industry.” 45. In Malaysia Building Society Berhad v Dato’ Yusuf Sudin [2013] 1 LNS 1284, the Court of Appeal allowed the appeal by the Appellant/employer’s claim for breach of fiduciary duties owed by the respondent/employee which resulted in losses to the appellant. 46. Reverting back to the instant case, the Court was satisfied that the plaintiff has discharged its burden of proving on a balance of probabilities that there were indeed breaches of duties by the respective defendants in respect of the four (4) facilities. The plaintiff has relied on the oral evidence of its witnesses and also the evidence as contained in the documents filed and produced before the Court to prove that the breaches had indeed occurred. 47. In Malaysia Airline System Bhd v Wan Sa’adi @ Syed Sa’adi bin Wan Mustafa [2015] 1 MLJ 757, the Federal Court held at page 771D as follows: “We also find no merit in the complaint of the respondent that the failure by the appellant to call the witnesses who testified during the domestic inquiry had deprived him of the opportunity to cross-examine them. There was nothing to prevent the respondent from calling those witnesses even though the appellant did not call them. Obviously the appellant was satisfied with the evidence it had adduced without having to call those witnesses. …” (Emphasis added). The Faaris Facility 48. The Court shall now deal with the Faaris Facility. 49. The Faaris Facility dated 27 July 2000 was entered into by BILL and Investment Holding Plc (“Faaris”) for USD 485,000.00 in favour of Faaris (see Bundle C, p. 216-276). The sale price for the Faaris Facility is USD 506,098.00 (see Bundle C, p. 216-276, at p. 262). 50. Among the principal terms and conditions of the Faaris Facility were that the facility was to be secured by, inter alia, a 3rd Party Cash Deposit providing 110% security at any one (1) time in the plaintiff or Lembaga Tabung Haji and held on lien to BILL (“the Memorandum of Deposit/Charge”). 51. A Cash Deposit was made by one Dato’ Affifudin bin Haji Omar (“Dato’ Affifudin”) in his Lembaga Tabung Haji account and was charged to BILL (“the Charge over Cash Deposit”). Whether the 1st defendant has breached his duties in respect of the Faaris Facility? 52. Prior to the execution of the security documents to give effect to a change in the security arrangement from the Charge over Cash Deposit to 2,000,000 units of Digi.com Berhad shares belonging to one Kamarudin Jaffar, the 1st defendant signed a letter dated 19 January 2004 addressed to Lembaga Tabung Haji releasing BILL’s charge over Dato’ Affifudin’s account (“the Release of Security”) (see Bundle E, p. 302). What are the losses suffered by the plaintiff? 53. Prior to the Release of Security, the Faaris Facility was secured by the Ringgit Malaysia equivalent of USD 673,115 in Tabung Haji deposit charged to BILL (see Bundle E, p. 338). As at 1 July 2002, there remained RM 2,557,837.79 in Dato’ Affifudin’s Tabung Haji account (see Bundle E, p. 346-347). 54. The security of the Digi.com Berhad shares to be obtained as the replacement security had a market value of USD 1,789,474 (see Bundle E, p. 348-349). Accordingly, had this Digi.com Berhad shares been obtained as security, the plaintiff would have been fully secured for the outstanding amount under the Faaris Facility. 55. The Court found that based on the evidence adduced by the plaintiff, the plaintiff has suffered losses of USD 501,379.17 in respect of the Faaris Facility, which comprise the outstanding Selling Price as at 30 July 2004 of USD 499,647.00 and legal fees incurred of USD 1,732.17 (see Bundle D, p. 1). 56. The Court found that the plaintiff has proven on a balance of probabilities that the person who has caused this loss to the plaintiff is the 1st defendant. Whether the plaintiff took steps to mitigate its loss? 57. The Court was satisfied that the plaintiff had undertaken the following steps to mitigate its losses in relation to the Faaris Facility: (1) Upon default in making instalment payments by Faaris, BILL’s solicitors had sent a letter of demand dated 16 December 2004 to Faaris (see Bundle C, p. 87-88); (2) Numerous telephone calls were made to Faaris to request for the transfer of the Digi.com Berhad shares (see Bundle C, p. 211-212, at p. 211); (3) BILL’s solicitors issued a Notice of Recall of the Faaris Facility dated 9 March 2005 (see Bundle C, p. 213-214); and (4) BILL’s solicitors had sent a letter of demand dated 21 March 2005 for the execution and delivery of the Third Party Memorandum of Charge Over Shares in favour of BILL to replace the Charge over Cash Deposit (see Bundle C, p. 85-86). Whether the plaintiff has discharged its burden of proof against the 1st defendant? 58. Based on the evidence before the Court, the Court was satisfied that the plaintiff has discharged its burden of proof against the 1st defendant with regard to the 1st defendant’s liability towards the plaintiff for the Faaris Facility. The First Commerce Facility 59. The Court shall now deal with the First Commerce Facility. 60. By a Memorandum of Approval dated 5 February 2002, the Management Committee consisting of all defendants recommended for approval to the Board of Directors a USD 4,800,000.00 Al-Ijarah Al-Muntahiah Bit Tamlik facility in favour of Commerce Trading (“First Commerce Facility”) to be secured by inter alia, a joint and several guarantee by Kamaruddin Awang (“Kamaruddin”) and Datuk Hiew Min Yong (“Datuk Hiew”) (see Bundle B, p. 17-29). 61. The recommendation for the First Commerce Facility was tabled at the 9th Credit Meeting of BILL but based on the results of a CTOS search carried out and presented, was then deferred for the Management Committee to obtain clarification on legal proceedings against Kamaruddin and Datuk Hiew and to consider additional securities for the facility (see Bundle B, p. 30). 62. In a letter dated 5 September 2001, Messrs. Zul Rafique & Partners, BILL’s solicitors, had advised BILL in relation to a related facility, Commerce Resources Inc which was also secured inter alia by a joint and several guarantee by Datuk Hiew that there was every danger that Datuk Hiew may be made a bankrupt at any time in view of the fact that a receiving order had already been made against him (see Bundle F, p. 902-904). Whether the 1st, 2nd, 3rd and 4th defendants have breached their duties in respect of the First Commerce Facility? 63. The Management Committee consisting of all defendants, nonetheless, submitted a further recommendation for approval of the First Commerce Facility dated 11 March 2002 (see Bundle B, p. 31-45) based on a letter dated 28 February 2002 from one C. Robertson, the legal counsel of Datuk Hiew, clarifying the legal proceedings against Datuk Hiew (see Bundle F, p. 905-906). 64. At its 38th Board meeting held on 28 March 2002 attended by the 1st and 2nd defendants, the Board of Directors of BILL approved the First Commerce Facility based on the recommendation by the Management Committee with several additional conditions (see Bundle B, p. 46). 65. By an internal memorandum dated 4 April 2002 addressed to the 2nd defendant and copied to the 1st defendant, BILL’s officers recommended to the Management that the signing of the First Commerce Facility agreement be deferred to protect BILL’s interests (see Bundle F, p. 909-911). 66. By another internal memorandum dated 5 April 2002 addressed to the 2nd defendant and copied to the 1st defendant, BILL’s officer expressed concerns regarding, inter alia, the strength of the security in the form of a personal guarantee from Datuk Hiew in view of the fact that a receiving order had been made against him (see Bundle F, p. 912-914). 67. Despite the concerns raised by BILL’s officers, no action was taken by the 1st and 2nd defendants and/or the Management Committee to address these issues. 68. The disbursement of the First Commerce Facility was approved by the Management Committee which included the 1st defendant on 30 April 2002 (see Bundle B, p. 49-60). Whether the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the First Commerce Facility? 69. Based on the evidence before the Court, the Court was satisfied that the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the First Commerce Facility. The Second Commerce Facility 70. The Court shall now deal with the Second Commerce Facility. 71. By a memorandum dated 11 November 2002 signed by the 2nd defendant, a proposal was made to the Finance Exco of BILL for the provision of an ad-hoc Murabahah Working Capital Financing (“MWCF”) facility of USD 200,000.00 to Commerce Trading. The security proposed was, a joint and several guarantee by Kamaruddin and Datuk Hiew, and the placement of USD 146,000.00 in a Mudharabah Investment Account (see Bundle B, p. 61-70). Whether the 1st, 2nd, 3rd and 4th defendants have breached their duties in respect of the Second Commerce Facility? 72. No further checks or clarification were obtained as to the financial status of Datuk Hiew notwithstanding that a receiving order had been made against Datuk Hiew. This issue was not highlighted to the Finance Exco. The proposal for the ad-hoc facility was recommended by the Management Committee comprising all defendants without further questions or reverting back to the Corporate Banking Department for further credit evaluation. 73. On 20 November 2002, the facility was approved by the Finance Exco of BILL which included the 2nd defendant based on this recommendation (see Bundle B, p. 70). 74. By a letter dated 2 January 2003, Commerce Trading requested for an additional amount of USD 150,000.00 over and above the approved amount of USD 200,000.00. This additional facility was again recommended by the 4th defendant upon the same terms and conditions as the USD 200,000.00 MWCF facility without enquiry (see Bundle B, p. 71-75). 75. On 28 January 2003, the additional amount of USD 150,000.00 was approved by the Finance Exco, which included the 1st and 2nd defendants, based on this recommendation (see Bundle B, p. 75 and p. 76-81). 76. Subsequently, on 11 January 2003, the 4th defendant approved a request for disbursal of the full amount of USD 350,000.00 and the same was accordingly disbursed (see Bundle F, p. 915-917). 77. Vide a memorandum from the Corporate Banking Department dated 6 February 2003, it was requested that the Management Committee approve the reduction of the security deposit from USD 146,000.00 to USD 74,736.00, as a sum of USD 72,000.00 from the security deposit had already been used by Commerce Trading to finance the quarterly instalments for the First Commerce Facility (“Reduction of Security”) (see Bundle F, p. 907-908). 78. The request for Reduction of Security was approved by the Management Committee which included the 4th defendant but it was a condition and in accordance with practice and procedure that the Reduction of Security be ratified by the Finance Exco and/or the Board of Directors as approving authority. The ratification was not obtained. 79. Contrary to the terms and conditions upon which the Second Commerce Facility had been approved, the amount in the Mudharabah Investment Account at the time of disbursal was only USD 73,736.00. What are the losses suffered by the plaintiff? 80. The Court found that based on the evidence adduced by the plaintiff, the plaintiff has suffered losses of USD 5,510,287.60 which consists of the judgment sum for the First Commerce Facility of USD 5,150,800.00, the judgment sum of USD 352,240.00 for the Second Commerce Facility, the amounts advanced by BILL on behalf of Commerce Trading in the sum of USD 1,026.34 and costs on a full indemnity basis of USD 6,221.28 (see Bundle D, p. 4). 81. The Court also found that the persons who had caused these losses to the plaintiff are the 1st, 2nd, 3rd and 4th defendants. Whether the plaintiff had taken steps to mitigate its loss? 82. Based on the evidence, the Court found that the plaintiff had undertaken the following steps to mitigate its losses in relation to the Commerce Trading Facility: (1) BILL’s solicitors had sent letters of demand dated 15 June 2004 (see Bundle F, p. 918-920) and 20 October 2004 to Commerce Trading and the guarantors of the Commerce Trading Facility (see Bundle C, p. 281-283); (2) BILL obtained a judgment in relation to the First Commerce Facility on 25 May 2005 in the sum of USD 5,150,800; and (3) BILL obtained a judgment in relation to the Second Commerce Facility on 25 May 2005 in the sum of USD 352,240.00. Whether the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the Second Commence Facility? 83. Based on the evidence before the Court, the Court found that the plaintiff has discharged its burden of proof against all the 4 (four) defendants in respect of the Second Commence Facility. The Crest Group Facility 84. The Court shall now deal with the Crest Group Facility. 85. The Crest Group Facility for USD 11,000,000.00 was granted by BILL on 9 December 2000 to Crest Group Inc. (“the Crest Group”). The Crest Group Facility was to be secured by, inter alia, debentures by subsidiaries of the Crest Ultrasonics Group which was part of the Crest Group (see Bundle E, p. 472-528). 86. By a Memorandum for Approval dated 28 January 2001, a recommendation was submitted by the Management Committee, which included the 1st and 2nd defendants for, inter alia, a change of the security arrangement by cancelling the security of a debenture on the fixed and floating assets of two (2) subsidiaries and requiring a ‘negative pledge’ instead due to tax reasons (see Bundle E, p. 316-319). 87. On 8 March 2001, the proposal for ratification by the Board of Directors of BILL was recommended by the Management Committee which included the 1st and 2nd defendants. The change of security arrangement was, subsequently, ratified by the Board of Directors of BILL at the 33rd Board of Directors’ meeting held on 23 March 2001 (see Bundle E, p. 320-321A). 88. By a letter dated 16 March 2001, BILL’s solicitors, Messrs. Mohamed Ismail & Co. advised that the Crest Group Facility could be disbursed subject to resolution of several outstanding conditions precedent (see Bundle E, p. 322-328). Whether the 1st and 2nd defendants have breached their duties in respect of the Crest Group Facility? 89. Notwithstanding the outstanding conditions precedent, disbursal of the Crest Group Facility was approved by the Management Committee comprising the 1st and 2nd defendants, and the Crest Group Facility was, subsequently, disbursed (see Bundle E, p. 325). 90. To date, the negative pledges have not been executed nor perfected nor have the outstanding conditions precedent been fulfilled. Crest Group, subsequently, defaulted on the repayment of the Crest Group Facility. 91. Hence, the Court was satisfied that the 1st and 2nd defendants have breached their duties in respect of the Crest Group Facility What are the losses suffered by the plaintiff? 92. Pursuant to a Settlement Agreement entered into with Crest Group, the outstanding sum of USD 1,397,964.84 was waived (see Bundle D, p. 2). 93. Based on the evidence, the Court found that this loss was caused to the plaintiff by the 1st and 2nd defendants. Whether the plaintiff had taken steps to mitigate its loss? 94. The Court found that the plaintiff had taken steps to mitigate its loss. BILL’s solicitors had sent numerous reminders, among others, by letters dated 19 June 2002 (stated as “12th Reminder”) (see Bundle C, p. 93-97) and dated 11-7-2002 (stated as “13th Reminder”) (see Bundle C, p. 98) to Crest Group to request for the outstanding conditions precedent. Whether the plaintiff has discharged its burden of proof against the 1st and 2nd defendants in respect of the Crest Group Facility? 95. Based on the evidence, the Court found that the plaintiff has discharged its burden of proof against the 1st and 2nd defendants in respect of the Crest Group Facility. The Crestek Facility 96. The Court shall now deal with the Crestek Facility. 97. On 26 November 1999, the Board of Directors of BILL had approved an Al-Bai Bithaman Ajil facility of USD 20,000,000.00 to Crestek Inc and USD 10,000,000.00 to Crest Group Inc. for the period of three (3) years and the repayment of the principal was a “bullet repayment” at the end of maturity of the facility. The said facilities were to mature on 12 October 2002 and 23 November 2002, respectively (see Bundle E, p. 32 and p. 332-336). 98. A Memorandum for Financing Approval for a USD 30,000,000.00 Al-Bai Bithaman Ajil facility in favour of Crestek (“Crestek Facility”) as an extension of the earlier facilities to Crestek Inc and Crest Group respectively was recommended by the Management Committee which consisted of the 1st and 4th defendants (see Bundle C, p. 124-210). 99. Crestek and BILL entered into a facility agreement dated 19 June 2003 (see Bundle E, p. 529-590). It was a condition precedent that all security documentation must be executed and perfected prior to disbursement of the facility. Whether the 3rd defendant has breached his duties to the plaintiff in respect of the Crestek Facility? 100. Based on the evidence, the Court found that the 3rd defendant has breached his duties to the plaintiff in respect of the Crestek Facility. This is because a pre-disbursement checklist dated 19 June 2003 was also forwarded to the Management Committee for their review and their approval disclosing several outstanding condition precedents (see Bundle C, p. 114-123). 101. However, the Memorandum for Approval of Disbursement was approved singly by the 3rd defendant, instead of by two (2) members of the Management Committee (see Bundle C, p. 113). What are the losses suffered by the plaintiff? 102. Based on evience, it is undisputed that Crestek, subsequently, defaulted on the repayment of the facility. Pursuant to a Settlement Agreement entered into with Crestek, the outstanding sum of USD 24,384,068.56 was waived (see Bundle D, p.3). 103. Hence, the plaintiff has claimed for this amount against the 3rd defendant. Whether the plaintiff has discharged its burden of proof against the 3rd defendant in respect of the Crestek Facility? 104. Based on the evidence, the Court found that the plaintiff has discharged its burden of proof against the 3rd defendant in respect of the Crestek Facility. Additional issue (1): Whether the Court ought to apportion liability between the 4 (four) defendants and the Board of Directors of BILL and/or the plaintiff? 105. Since none of the defendants has pleaded contributory negligence, the Court cannot grant any apportionment of liability. Hence, the Court found for the plaintiff in respect of the plaintiff’s claims for the whole amount of the losses suffered against the respective defendants (see Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas & Anor [1995] 2 MLJ 276 where the Court held at 283F as follows: “… apportionment of liability cannot be granted when contributory negligence was not pleaded by the appellants - see the case of Hamizan bin Abd Haid v Wong Kok Keong & Anor [1994] 3 MLJ 630.” 106. In Hamizan bin Abd Hamid v Wong Kok Keong [1994] 3 MLJ 630, the Court held at page 634E as follows:- “Though the common law position is somewhat altered, the principle of contributory negligence as a defence does not seem to have changed. It is still required to be pleaded by the defendant and, failure to do is fatal to the defence even though contributory negligence on the part of the plaintiff is found to exist. The decision of Fookes v Slayton [1979] 1 All ER 137; [1978] 1 WLR 1293 supports this principle. In this case, the English Court of Appeal held that the trial judge had erred in awarding damages based on contributory negligence of the claimant when the defendant did not even file his defence or appeared in court. The award was reversed by the Court of Appeal and altered to a 100% liability against the Defendant. Fookes v Slayton has been accepted in our courts for some time and, in fact it was reiterated by KC Vohrah J in the case of Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313.” and further at 635C, “From the aforesaid authorities, one element is certain and that is, the issue of contributory negligence must be brought to the court’s consideration before it can be deliberated. If it is not, then apportionment of liability based on contributory negligence of the claimant cannot succeed. In a vast majority of cases where the cause of action is based on negligence, the defence normally pleads contributory negligence in their statement of defence. Once this is pleaded, it becomes an issue before the court which requires the court’s consideration. As it has become an issue, there is no necessity for the plaintiff to plead the same. However, if the defendant does not plead contributory negligence in his defence, it does not become an issue before the court. In such an event, if the plaintiff is able to prove any degree of negligence against the defendant, he will succeed in his case despite the fact that he may have contributed towards it. He will be entitled to damages based on a 100% liability. The cases of Fookes v Slayton and Anuar bin Mat Amin v Abdullah bin Mohd Zain support this principle. …” (Emphasis added). 107. Based on the above authorities that were cited by Mr. Oommen Koshy, the plaintiff’s learned counsel, the Court agreed with and accepted the plaintiff’s submissions that since the Court is satisfied that the plaintiff has succeeded in proving liability on the part of the defendants, the plaintiff is entitled to damages based on a 100% liability against the, respective, defendants. 108. Further, since the defendants are attempting to shift the blame to the members of the Board of Directors of BILL, it was incumbent upon the defendants to ensure that the relevant members of the Board of Directors were added as third parties or co-defendants in this suit. Here, only the 4th defendant has issued indemnity proceedings against the 1st and 2nd defendants. For the rest of the defendants, it is too late to raise this issue now. 109. In Dr Aishah Tul Radziah bt L Hussin v Dr Suresh a/l Kumarasamy & Ors [2014] 11 MLJ 702, the Court held at page 726D as follows:- “As a matter of fairness, fairplay and justice, since Dr Aishah had shifted the blamce to HPP and its doctors in the first suit, she should have joined HPP and its doctors either as third parties or co-defendants in the first suit and thereafter made all necessary interlocutory applications by way of further and better particulars or discovery or interrogatories. In the result, I am impelled to the view that everything that is being articulated against HPP and its doctors in the present suit could have been done in the first suit. In my view, in the circumstances of the situation which prevailed in the first suit and in particular having regard to Dr Aishah’s trial strategy of shifting the blame to HPP and its doctors, it was incumbent upon Dr Aishah to ensure that HPP and its doctors were added as third parties or co-defendants in the first suit. …” (Emphasis added). Additional issue (2): Who bears the burden of proof on mitigation of losses that are claimed by the plaintiff? 110. The 1st and 2nd defendants have raised the issue of “follow-up” during cross-examination of the plaintiff’s witnesses and as an alternative defence in the 1st and 2nd defendants’ submissions (see the 1st and 2nd defendants’ Written Submissions, pages 16-18, paragraphs 32-36) in alleging that the losses suffered by the plaintiff could have been averted had “follow-up” actions been taken by BILL. 111. Nevertheless, the Court agreed with and accepted the plaintiff’s submissions that it is trite law that the burden of proving grounds for mitigation rests on the defendants and the defendants have failed to discharge this burden as the defendants did not lead any evidence of fact in mitigation of damages. 112. In Leong Yoong v Lee Sem Yoong [1968] 2 MLJ 72, the Federal Court held at page 76I (right) as follows:- “The damages suffered by the respondent in this case are by no means remote. The respondent said in his oral evidence that he had told the appellant that he wanted to sell the land. There has been no denial of that allegation. If there were grounds for mitigation it was for the appellant to have alleged and proved them:- ‘The question of what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law, but one of fact in the circumstances of each case, the burden of proof being upon the defendant’ (see Halsbury, vol. 11, (3rd Ed.), para. 476, age 290). In the present action the appellant has not pleaded or proved any fact in mitigation of damages. … The appeal is dismissed with costs …” (Emphasis added). 113. In any event, the Court found that the plaintiff was only vested with the assets and undertakings of BILL pursuant to the Vesting Order in 2006. Prior to that, the day-to-day management of BILL was under the purview of the defendants themselves, either as members of the Management Committee or as the CEO of BILL. Therefore, the Court agreed and accepted the plaintiff’s submission that this is not an issue which should prevent the plaintiff from succeeding in a claim for damages against the defendants. Additional issue (3): Whether the non-calling of the members of the Board of Directors of BILL and/or the plaintiff as witnesses is fatal to the plaintiff’s claim? 114. In Malaysia Building Society Berhad v Dato’ Yusuf Sudin [2013] 1 LNS 1284, it can be seen from the Grounds of Judgment that one of the members of the Appellant’s Board of Directors testified as a witness on behalf of the Appellant. However, the calling of the member of the Board of Directors concerned may have been necessary in that case as the sole complaint of the Appellant was that the Respondent caused the Appellant to enter into loan agreements despite not getting the approval from the Board of Directors. This is not the situation in the present case. 115. In any event, the Court was of the considered view that the non-calling of the members of the Board of Directors of BILL as witnesses is not fatal to the plaintiff’s claim. This is because the issue that none of the members of the Board of Directors of BILL was called as the plaintiff’s witnesses was never raised by any of the defendants during the trial. Even then, it was open to any of the defendants to call them as witnesses, but none did. Conclusion 116. In the premises, based on the reasons as set out above, the Court found follows: (1) That all four (4) defendants at all material times owed statutory, common law and/or contractual duties to BILL; (2) That all four (4) defendants had acted in breach of their duties owed to BILL; and (3) That BILL had suffered losses and damages by reason of the said breach: (a) In respect of the Faaris Facility, damages in the sum of USD 501,379.17 against the 1st defendant; (b) In respect of the Commerce Facility, damages in the sum of USD 5,510,287,60 against the 1st, 2nd, 3rd and 4th defendants jointly; (c) In respect of the Crest Group Facility, damages in the sum of USD 1,397,964.84 against the 1st and 2nd defendants jointly; and (d) In respect of the Crestek Facility, damages in the sum of USD 24,384,068.56 against the 3rd defendant. 117. Therefore, the decision and orders of the Court in favour of the plaintiff and against the defendants are in order. Dated: 6 April 2016 (DATUK SU GEOK YIAM) Judge High Court Civil NCvC 11 Kuala Lumpur COUNSELS 1. Mr. Oommen Koshy and Miss Eyza Farizan Mokhtar, the learned counsels for the plaintiff at: Messrs. Skrine Advocates & Solicitors Unit No. 50-8-1, 8th Floor Wisma UOA Damansara 50, Jalan Dungun Damansara Heights 50490 Kuala Lumpur 2. Mr. Azhar Arman Ali and Miss Elly Azrin Khalid, the learned counsels for the 1st and 2nd defendants at: Messrs. Arman-Yunos Advocates & Solicitors No. 3-5, Jalan 15/48A Off Jalan Sentul 51000 Kuala Lumpur 3. Mr. Mohd Mohyiddin bin Mohamad Mesbah, the learned counsel for the 4th defendant at: Messrs. Mohyiddin & Co. Advocates & Solicitors 284-1B, Jalan Haruan 5/7 Pusat Commercial Oakland II Seremban 2 70300 Seremban CASE REFERENCE: 1. Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas & Anor [1995] 2 MLJ 276. 2. Hamizan bin Abd Hamid v Wong Kok Keong [1994] 3 MLJ 630. 3. Dr Aishah Tul Radziah bt L Hussin v Dr Suresh a/l Kumarasamy & Ors [2014] 11 MLJ 702. 4. Malayan Banking Bhd v Basarudin bin Ahmad Khan [2007] 1 MLJ 613. 5. The State of South Australia & Anor v Timothy Marcus Clark [1996] SASC 5499. 6. Malaysia Building Society Berhad v Dato’ Yusuf Sudin [2013] 1 LNS 1284. 7. Malaysia Airline System Bhd v Wan Sa’adi @ Syed Sa’adi bin Wan Mustafa [2015] 1 MLJ 757. 8. Leong Yoong v Lee Sem Yoong [1968] 2 MLJ 72. LEGISLATION REFERENCE: 1. S 92 of the Offshore Companies Act 1990. 2. S 114 (g) of the Evidence Act 1950. 39

Tika 2.6.0

22C-55-11/2015

PLAINTIF Ranhill E&C Sdn Bhd DEFENDAN 1. Thyssenkrupp Industries (M) Sdn Bhd; 2. Malayan Banking Berhad

21/03/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=efb29a75-6deb-43e8-9af7-47fafa253e4e&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) CIVIL SUIT NO: 22C-55-11/2015 BETWEEN RANHILL E&C SDN BHD ... PLAINTIFF (COMPANY NO: 742354-X) AND 1. THYSSENKRUPP INDUSRIES (M) SDN BHD (COMPANY NO: 1013967-A) 2. MALAYAN BANKING BERHAD (COMPANY NO: 3813-K) ... DEFENDANTS THE JUDGMENT OF Y.A. TUAN LEE SWEE SENG [1] This is an inter-parte hearing in Enclosure 11 as to whether the ex- parte injunction restraining the first Defendant ("D1") from receiving the sum of RM2.45 million under a Bank Guarantee issued by the second 2 Defendant Malayan Banking Berhad ("D2") and restraining D2 from paying out to D1 the said sum, should be confirmed, discharged or varied. The Project [2] A company known as Tanjung Bin Energy Issuer Bhd. Malaysia (“TBEI”) was tasked to administer and manage the construction of a 1,000 megawatt power plant located at Tanjung Bin Johor (“the Project”). TBEI in turn appointed Alstom Services Sdn Bhd (“Alstom Services”) to provide services of erection, commissioning and testing of a coal handling plant (“the Works”). [3] Alstom Services thereafter entered into an agreement with the D1 wherein it was to carry out the Works. D1 is a wholly owned subsidiary of Thyssenkrupp Industries India Pty Ltd and was incorporated on or around 15 August 2012. [4] D1 then appointed the Plaintiff to undertake the Works for the Project for a total price of RM24.5 million ("the Contract Sum") by its Letter of Intent dated 12 April 2013. The Letter of Intent set out the initial scope of Works required to be carried out by the Plaintiff in respect of the Project. This was followed by a work order W.O. No. TK(M)/3M0037/PO-002 dated 15 May 3 2013 to the Plaintiff in respect of the scope of works to be carried out ("the Work Order"). [5] The Letter of Intent, the Work Order together with the Commercial Terms and Conditions dated 9 April 2013 ("the Terms and Conditions") formed the salient parts of the Contract between the Plaintiff and D1. The initial scope of Works included unloading at site, handling, storage till erection, erection, testing, commissioning and supervision ("the initial Scope of Works"). [6] It was a term of the Contract that D1 was to provide an advance payment in the sum of RM2,450,000.00 to the Plaintiff being 10% of the Contract Sum for the commencement of the Initial Scope of Works by the Plaintiff (“the Advance Payment”). The Advance Payment was to be made against the submission of a bank guarantee in favour of D1. Under Annexure 1 of the Terms and Conditions, the Bank Guarantee which was to secure the Advance Payment, was to remain valid until the expiry of 90 days beyond the completion or performance of the Plaintiff’s scope of Works. [7] It should also be mentioned that the subsequent 80% of the order value shall be paid to the Plaintiff progressively against monthly 4 progressive reports and bills as certified by D1 and after 30 days from the date of submission of documents by the Plaintiff to D1. In respect of the last 10% of the order value, the Plaintiff is entitled to payment upon (i) the completion of their works as signified by a performance guarantee test (as defined in the Contract) carried out by the Plaintiff and (ii) upon the provision of a bank guarantee for the value of the last 10% of the order value which was to be valid up to 30 April 2018. For the avoidance of doubt and confusion, this bank guarantee is separate and distinct from the Bank Guarantee for the Advance Payment. The Bank Guarantee ("BG") for the Advance Payment dated 3 June 2013 was duly furnished by the Plaintiff to D1; being issued by D2 to D1. Problems [8] The Plaintiff experienced various difficulties which it said was beyond its control in completing its Initial Scope of Works. Seeing that the Plaintiff was falling behind its schedule of Works, the Plaintiff and D1 entered into an agreement wherein the balance of the Initial Scope of Works of the Plaintiff would be de-scoped and awarded directly to the Plaintiff's subcontractors. The Plaintiff's obligation would then be reduced accordingly 5 ("the New Scope of Works") as captured in D1's letter to the Plaintiff dated 7 November 2014. [9] According to the Plaintiff, it had to the best of its ability performed the New Scope of Works up until February 2015 when for reasons best known to D1, D1 had wrongfully and/or in bad faith restricted and/or denied the Plaintiff access to the Project Site, thus preventing the Plaintiff from carrying out any further works. [10] D1's version is that the Plaintiff had abandoned the works in late September 2014. See paragraph 21(c) Enclosure 23 and Exhibit P8. At the time the Plaintiff abandoned the works, the progress for the works by the Plaintiff was only 32.26% as evidenced by Exhibit P 11 in Enclosure 23. This is the Plaintiff's own document annexed to its Statement of Claim. As can be seen up to Claim No. 16 dated 29 December 2015 the total progress of the works stood at 32.36%. [11] The Advance Payment had been deducted from every Progress Claim by deduction of 10% of the amount payable. The work, having stopped, there was the problem that the balance Advance Payment would be not recoverable if not by a demand made on the Bank Guarantee. The Plaintiff had at the request of D1 extended the Bank Guarantee on 2 6 previous occasions to 12 August 2015 and then further to 12 November 2015. [12] The Plaintiff proceeded from their understanding that since the Plaintiff's project works have been performed, there is no longer any obligation to maintain the Bank Guarantee which was expiring on 12 November 2015 nor any entitlement by D1 to call on the same. The Plaintiff wrote as such to D1 by its letter of 4 November 2015 seeking also a resolution in respect of the Plaintiff's outstanding claims for additional works and/or variations. [13] D1 had written to the Plaintiff by their letter dated 3 November 2015 (Exhibit P 18 Enclosure 28) stating categorically that the Plaintiff had failed to perform the Work Order as evidenced by various communications between the parties in the past. D1 reiterated that the delay in the erection works was on account of the Plaintiff's inability to mobilize the agreed resources in time and this was inspite of the additional financial support from D1 in making payments in advance of the work to be done at the request of the Plaintiff to ease their financial burden. D1 impressed upon the Plaintiff that they had paid them a sum of RM9.2 million inspite of the Plaintiff not completing their scope of works. In summary D1 informed the 7 Plaintiff that they have incurred RM32.95 million till date to complete the scope of work in the Work Order of RM24.5 million, the difference being RM8.45 million, which is their financial loss purely attributable to the Plaintiff inability to perform the Work Order. The letter ended with the cryptic note that they were thus constrained to invoke the BG. Prayers [14] The Plaintiff rushed to Court with a Certificate of Urgency and obtained on 11 November 2015 an ex-parte injunction in Enclosure 11 on the following terms: (i) that parties are to appear on 16 December 2015 at 9.00 a.m. for the hearing of the Application; (ii) that an ad-interim order is granted that the 1st Defendant and/or their servants and/or their agents or otherwise are restrained and an ad-interim injunction is granted restraining them and each of them from receiving and/or dealing with any money from the call on the Malayan Banking Berhad’s Bank Guarantee for Advance Payment No. 99140BGF5966287 until the disposal of the hearing on 16 December 2015; and 8 (iii) that an ad-interim order is granted that the 2nd Defendant and/or their servants and/or their agents or otherwise are restrained and an ad-interim injunction is granted restraining them and each of them from making any payment whatsoever under the Bank Guarantee to the 1st Defendant or otherwise until the disposal of the hearing on 16 December 2015. [15] The ad-interim injunction was extended by consent of the parties and finally fixed for disposal on an inter-parte hearing before me on 24 February 2016. Whether the BG is an unconditional on demand BG [16] The operative words of the BG issued by the Bank D2 in favour of D1 read as follows: BANK GUARANTEE FOR ADVANCE PAYMENT WHEREAS THYSSENKRUPP INDUSTRIES (M) SDN. BHD., a company existing under the laws of Malaysia, having its registered office at No. 656, 2nd Floor, 4th Mile, Jalan Ipoh 51200, Kuala Lumpur, Malaysia (hereinafter called the ‘Company’) which expression shall unless repugnant to the context include its successors and permitted assigns have received order from ALSTOM SERVICES SDN BHD for on-shore activities including but not limited to THE 9 ERECTION AND COMMISSIONING OF THE COAL HANDLING PLANT FOR 1X100 MW POWER PLANT FOR TANJUNG BIN PROJECT AT MALAYSIA. WHREAS M/S RANHILL E & C SDN BHD having its office at Level 14, Wisma Perkeso, No. 155, Jalan Tun Razak, 50400 Kuala Lumpur (hereinafter referred to as the ‘Contractor’) which expression shall unless repugnant to the context includes its successors, administrators, representatives and permitted assigns have approached the Company and offered to undertake THE ERECTION, COMMISSIONING, COLD TRIALS, HOT TRIALS, PG TEST, SUBSTANTIAL COMPLETION & HANDING OVER TO CLIENT OF COAL HANDLING PLANT FOR 1+1X1000MW COAL FIRED POWER PLANT, TANJUNG BIN, JOHOR MALAYSIA (hereinafter referred to as the ‘Works and Services’) as per the requirements of the Company. WHEREAS the Company has accepted the offer of the Contractor for providing the works and services for the said Tanjung Bin, Malaysia Project, and have placed their Order No. TKI(M)/3M0037/PO-002 dated 15 May 2013 (hereinafter called the ‘Contract’) for the scope of Work as detailed in the contract at the price on the terms and subject to the conditions contained in the said contract. WHEREAS the Contractor has agreed to comply with all the terms and conditions of the said contract. WHEREAS according to the terms of the said contract the Contractor is required to provide a Bank Guarantee for RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY) being 10% mobilisation advance of the Contract price, before the Company makes an advance payment of RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY), in the form set out by the Company. 10 And whereas BEFORE THE ADVANCE PAYMENT AS AFORESAID IS MADE, THE Bank has at the request of the Contractor agreed to give its Guarantee as herein contained. NOW THIS WITNESSETH AS FOLLOWS: In consideration of the Company agreeing to make an advance payment of RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY), we, MALAYAN BANKING BERHAD (3813-K), KUALA LUMPUR TRADE FINANCE CENTRE, LEVEL 8, MENARA HAP SENG, JALAN P. RAMLEE, 50250 KUALA LUMPUR, (hereinafter referred to as ‘Bank’) which expression shall unless repugnant to the context include its successors and assigns, do hereby unconditionally and irrevocably undertake to pay to the Company merely on first demand and without any demur an amount not exceeding RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY) for any delay, default or failure on the part of the Contractor in complying the obligations and responsibilities undertaken by the Contractor or against any loss or damage or costs caused to or suffered by or that may be caused or suffered by the company by reasons of any delay, default or failure on the part of the Contractor to fulfil either wholly or in part or breach by the Contractor of any of the terms and conditions contained in the said contract and in the event the Contractor shall make any delays or defaults in carrying out any of the Works and Services under the said contract or otherwise in the observance and performance of any of the terms and conditions relating thereto in accordance with the true meaning and intent thereof. We, Bank do hereby undertake to make payment on first demand, without any demur and without recourse to the Contractor of such sum or sums not exceeding RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY) as may be claimed by the Company, without requiring the Company to invoke any legal remedy that may be available 11 to it to compel the Bank to pay the same or to compel such performance by the Contractor. Notwithstanding anything to the contrary the decision of the Company as to whether the Contractor has committed any breach of the terms and conditions of the said contract and the extent of loss, damages, costs charges and expenses caused to or suffered by or that may be caused or suffered by the Company from time to time and the amount or amounts to which the Company is entitled by reason thereof will be final, conclusive and binding on the Bank and the Bank shall not be entitled to ask the Company to establish its claim or claims under this Guarantee but will pay the same on demand without any objection, and it shall not be open to the Bank to know the reason of or to investigate or to go into the merits of the demand or to question or to challenge the demand or to know any facts connected with the demand and the Bank shall not require any proof of liability of the Contractor to pay the amount to the Company. The right of the Company to recover from the Bank any amount under this Guarantee shall not be affected or suspended by reason of the fact that the dispute or disputes have been raised by the Contractor with regard to their liability or the proceedings are pending before tribunal/arbitrators/court, with regard thereto or in connection therewith. [17] As is evident from the clear and unambiguous words employed, the obligation of D2 as the Bank issuing the BG in favour of D1 is to pay the sum not exceeding the sum of RM2.45 million on a mere demand for it clearly says: ".....do hereby unconditionally and irrevocably undertake to pay to the Company merely on first demand and without any demur an amount not exceeding RM2,450,000.00 ..." The words of the BG are no 12 different from many unconditional and "on demand" guarantee that have come before the Courts for decision. One need to go no further than to refer to the Court of Appeal case of Karya Lagenda Sdn Bhd v. Kejuruteraan Bintai Kindenko Sdn Bhd & Anor [2007] 6 CLJ 24 where his Lordship Raus Sharif JCA (now PCA) spoke emphatically as follows: "[9] The learned High Court Judge ruled that the bank guarantee dated 27 June 2003 issued by the plaintiff in favour of the second defendant is an unconditional guarantee or “on demand bond” and all that is required to activate it is a written demand by the second defendant. The learned High Court Judge rejected the argument of the necessity for the second defendant to prove default on the part of the first defendant in performance of the building contract. We are in agreement with the learned High Court Judge. It is our judgment that the bank guarantee is a performance bond. Whether a performance bond is conditional or unconditional must depend on the terms of the bond itself (Teknik Cekap Sdn. Bhd. v. Public Bank Berhad [1995] 4 CLJ 697). In the present case, the relevant clause of the bank guarantee read as follows: If the contractor, unless relieved from the performance by any clause of the contract or by statute or by the decision of a tribunal of competence jurisdiction, shall in any respect fail to perform under the contract or commit any breach of his obligation there under, then the guarantor shall pay to the principal up to a total aggregate sum not exceeding the amount of RINGGIT MALAYSIA TWO MILLION SEVENTY FIVE THOUSAND 13 SEVEN HUNDRED AND SEN NINETY FOUR ONLY (RM2,075,700.94) on the principal’s demand notwithstanding any contestation of protest by the contractor or by the guarantor or by any third party, provided always that the total of all partial demands so made shall not exceed the aggregate sum of RINGGIT MALAYSIA TWO MILLION SEVENTY FIVE THOUSAND SEVEN HUNDRED AND SEN NINETY FOUR ONLY (RM2,075,700.94) and the guarantor’s liability to pay the principal as aforesaid shall correspondingly be reduced proportionate to any partial demand having been made as aforesaid. (emphasis added) [10] It is our judgment the above clause is a clear indication that the bank guarantee is an unconditional and “on demand” bank guarantee. Payment should therefore be effected by the plaintiff notwithstanding any contestation by the first defendant or the plaintiff when a valid demand is made by the second defendant. In this case there is no dispute that several demands were made by the second defendant, claiming from the plaintiff for the full sum of the bank guarantee amounting to RM2,075,700.94 due to non-performance of the building contract. [11] We are of the view, since the bank guarantee was an unconditional and “on demand” bank guarantee, there is no necessity for the demand letter as contended by the first defendant to expressly assert that the first defendant had failed to perform or breached the underlying building contract. Hence, the High Court Judge’s finding on this issue is not erroneous. 14 [12] In fact the wording of the bank guarantee in the present case is identical to the wording or performance bonds/bank guarantees that have come before the courts. (Syarikat Perumahan Pegawai Kerajaan Sdn. Bhd. v Bank Bumiputra Malaysia Bhd. [1990] 2 CLJ 1052; [1990] 3 CLJ (Rep) 159, Cygal Bhd. v. Bandar Subang Sdn. Bhd. [2004] 3 CLJ 67, Hermis Interco BV Sdn. Bhd. v. Syarikat Pembinaan Hashnudin Sdn. Bhd. [1986] 1 MLJ 245, HSH Engineering & Construction Sdn Bhd v. Belton properties Sdn. Bhd. & Anor [2001] 2 CLJ 186 and LEC Contractors (M) Sdn. Bhd. v. Castle Inn Sdn Bhd & Anor [2000] 3 CLJ 473). In all these cases the courts have consistently held that such guarantee/bond is an ‘unconditional bond’ or an ‘on demand bond’. We have no reason to interpret differently." [18] The business community knows the significance and more importantly the strength of a Bank Guarantee. It is what it says it will do and no less than a licensed bank declaring that it will pay upon demand. It is a separate contract between the Bank and the Beneficiary of the Guarantee. It is apart from the underlying contract between the Beneficiary and its contracting party. Sure there are exceptions where a Bank for example that had given such a Guarantee might be restrained from making payment upon a demand being made on it to pay. It is the kind of exception that underscores the general rule; the general rule being payment made 15 forthwith upon demand without demur, protestation, proof of damage and the like. [19] Here for instance D1 would like the Court to believe that though the BG was issued in the context of the requirement of Clause 19.1 of the Contract to secure the payment back of the Advance Payment made by D1 to the Plaintiff, it was actually wide enough to cover any failure of performance of the Contract by the Plaintiff. However we cannot ignore the context here as the context both circumscribe and confine the ambit and scope of the BG and the title to the BG being a "BANK GUARANTEE FOR ADVANCE PAYMENT" both clarify and confirm what the BG is for. Both the background and backdrop for the issuance of the BG cannot be discarded and dismissed. The purpose cannot be extended to the performance of the Contract generally as that was not the intention of the parties at the outset and so it cannot be allowed to obscure the obvious merely because it is couched in absolute and all-encompassing terms. [20] Having held that the BG is for securing the Advance Payment and not something else, the question to be considered next is whether the Beneficiary D1 here may make a demand for the whole sum guaranteed of RM2.45 million. 16 Whether the demand of D1 on the BG is unconscionable [21] The law on payment out under a Banker's Guarantee or Performance Bond has developed to now allow a restrain on such payment out on ground not only of fraud but also of unconscionability as well. The watershed case is that of the authoritative pronouncement of the Federal Court in Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2014] 4 MLJ 1. The Federal Court speaking through his Lordship Hamid Embong FCJ, endorsed the approach taken by the Court of Appeal as follows: “[17] The Court of Appeal used the following tests and principles in coming to its conclusion, in determining the issue at hand as found in the following passages from its judgment: (i) The principle concerning ‘unconscionability’ was initially propounded by Lord Denning in the case of Lloyds Bank v Bundy [1975] QB 326 where it was held that unconscionable transaction between parties may be set aside by the court of equity. This ‘unconscionable’ category is said to extend to all cases where unfair advantage has been gained by an unconscientious use of power by a stronger party against 17 a weaker (see also Halsbury’s Law of England, (3rd Ed), Vol 17 [1956] at p 682). (ii) On an application for relief against unconscionable conduct, the court looks to the conduct of the party attempting to enforce, or retain benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so (see Commercial Bank of Australia Ltd v Amadio and Another [1983] 46 ALR 402). (iii) In the Singapore High Court, Lai Kew Chai J in the case of Min Thai Holdings Pte Ltd v Suniable Pte Ltd & Anor [1999] 2 SLR 368 opined that ‘the concept of unconscionability involves unfairness, as distinct from dishonesty or fraud, or conduct so reprehensible or lacking in good faith that a court of conscience would either restrain the party or refuse to assist the party’. (iv) It is not possible to define ‘unconscionability’ other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute ‘unconscionability’ would have to depend on the facts of each case. This is a 18 question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization (see Dauphin Offshore Engineering and Trading Pte Ltd v The Private Office of HRH Sheikh Sultan bin Khadifa bin Zayed Al-Nahyan [2000] 1 SLR (R) 117; and Shanghai Electric Group Co Ltd v PT Merak Energi Indonesia [2010] 2 SLR 329) (v) Based on the above considerations, we are of the view that there is no simple formula that would enable the court to ascertain whether a party had acted unconscionably in making a call on an on-demand performance bond or bank guarantee. In the final analysis, whether or not ‘unconscionability’ has been made out is largely dependent on the facts or each case. In every case where ‘unconscionability’ is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith. (vi) In Bocotra Construction Pte Ltd v AG [1995] 2 SLR (R) 262, the Singapore Court of Appeal, stated that ‘a higher degree of strictness applies, as the applicant will be required to 19 establish a clear case of fraud or unconscionability in the interlocutory proceedings. It is clear that mere allegations are insufficient’.” ... “[39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a ‘strong prima facie case’ was utilized by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish ‘unconscionability’ there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of ‘unconscionability’ which would basically mean establishing a strong prima facie 20 case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of ‘unconscionability’ being committed by the beneficiary (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of ‘unconscionability’ should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man.” (emphasis added) [22] In Kejuruteraan Bintai Kindenko Sdn Bhd v. Nam Fatt Construction Sdn Bhd & Anor [2011] 7 CLJ 457 it was observed as follows: "[61] A performance bond is basically a form of security for the performance of the underlying contract between the parties. Usually the underlying contract between the parties provides for the requirement of a performance bond to be issued by a bank for the benefit of the beneficiary in the event of non-performance of the other party of the contractual obligations between them. The underlying 21 purpose of a performance bond is to provide a security which is to be readily, promptly and assuredly realisable when the prescribed event occurs, as stipulated in the underlying contract. [62] On the one hand a beneficiary under a performance bond should be protected as to the integrity of the security he has in case of non-performance by the party on whose account the performance bond was issued. On the other hand, a performance bond can be used as an oppressive instrument. And in the event that a beneficiary calls on the performance bond in circumstance where there is prima facie evidence of fraud or unconscionability, the court should step in to intervene at the interlocutory stage to restrain him from making such a call until the whole matter had been investigated and determined (see: GHL Pte Ltd v. Unitrack Building Construction Pte Ltd (supra)." [23] Admittedly, it is easier to discern what is "unconscionable" than it is to define it; easier to see it when it is there than to spell it out. [24] Applying the enunciation of the additional ground of "unconscionability" to the factual matrix of this case, the question is 22 whether the beneficiary D1 could be said to have acted unconscionably in calling on the BG. [25] The Plaintiff admits that under the Contract, D1 made an Advance Payment to the Plaintiff of RM2.45 million after the Plaintiff had furnished a BG for the said sum from D2 to D1. This sum was for the express purpose of helping the Plaintiff to mobilize its staff to the site to commence the Works. There is no doubt that this sum advanced has to be repaid and the repayment was made by deducting 10% from every Certificate of Progress Billing as can be seen from the Plaintiff's own document attached to its Statement of Claim marked as Attachment 1 and summarised below as follows: Attachment 1 Invoice No. Date Total Amount (RM) 100% of Total Amount (RM) Completion Less Advance 10% Less Retention 10% Net Payable Amount 1 31.10.2013 360,390.34 450,487.93 1.84% 45,048.79 45,048.79 360,390.34 2 25.11.2013 226,459.73 283,066.65 1.16% 28,307.46 28,307.46 226,459.73 3 22.01.2014 279,995.08 349,993.85 1.43% 34,999.38 34,999.38 279,995.0 4 08.02.2014 218,183.26 272,729.08 1.11% 27,272.91 27,272.91 218,183.26 5 05.03.2014 154,963.13 193,703.91 0.79% 19,370.39 19,370.39 154,963.13 6 21.03.2014 186,793.99 233,492.49 0.95% 23,349.25 23,349.25 185,793.99 7 25.04.2014 349,458.91 436,823.63 1.78% 43,682.36 43,682.36 349,458.91 8 28.04.2014 515,000.00 515,000.00 9 31.05.2014 533,086.70 666,358.38 2.72% 66,635.84 66,635.84 533,086.70 10 02.07.2014 698,536.77 873,170.97 3.56% 87,318.10 87,319.10 698,536.77 23 11 24.07.2014 566,007.97 707,509.96 2.89% 70,751.00 70,751.00 566,007.97 12 05.09.2014 815,987.00 1,019,984.00 4.16% 101,998.00 101,998.00 815,987.00 13 08.09.2014 284,013.00 284,013.00 14 02.10.2014 798,686.00 998,357.00 4.07% 99,836.00 99,836.00 798,686.00 15 12.11.2014 788,534.00 985,667.00 4.02% 98,567.00 98,567.00 788,534.00 16 29.12.2014 368,727.00 460,909.00 1.88% 46,091.00 46,091.00 368,727.00 17 31.12.2014 264,953.00 264,953.00 18 09.01.2015 521,997.00 652,496.00 2.66% 65,250.00 62,250.00 521,997.00 1 A/W 06.02.2015 3,845,205.00 3,845,205.00 [26] From the Plaintiff's own summary of invoices, payments received and the percentage of works completed, it can be seen that as at Invoice No. 16 dated 29 December 2014, only 32.36% of the Works have been completed. The total amount recouped from the 10% deducted for each of the Invoices issued was only RM858,725.00. It becomes plain obvious that D1 is not going to recover the whole of the RM2.5 million made to the Plaintiff as Advance Payment. [27] The whole purpose of the BG is to secure the repayment of Advance Payment made at the commencement of the Works as provided for in Clause 19.1 of the Contract. The Plaintiff had abandoned the Works in late September 2014 (Exhibit P 8 Enclosure 23). When requested by D1, the Plaintiff extended the BG due to expire on 12 May 2015 to 12 August 2015. Before the expiry of the first extension of the BG, D1 wrote to the Plaintiff by its letter of 6 August 2015 stating that the extension was necessary 24 "Since contractual obligations against our above Order are yet to be fulfilled." There was another extension to 12 November 2015 (second extension). [28] Before the expiry of the second extension, the Plaintiff wrote to D1 by letter dated 4 November 2015 expressing its utter disappointment with D1 for not paying the sum of RM3,845, 205.00 which the Plaintiff said was due under Invoice 1 A/W dated 6 February 2015 for addition/variation works done which it said D1 had wholly refused, failed and/or neglected to approve or make payment for these works. See Exhibit HKK 15 in Enclosure 11. It expressed in no uncertain terms that "Any requirement for further extension of the Banker Guarantee or even a call on the same would certainly amount to unconscionable conduct on your part as that would on top of already depriving us of the RM3,845,205.00, seek to cause further financial damage to us and further unjustly enrich yourself." The Plaintiff did not raise any objections to both the first and second extensions of the BG. D1 contended that the Plaintiff is now estopped from contending that their Contract had been completed or that any request for further extension would be unconscionable. 25 [29] Perhaps D1 had gotten wind of this and so by their letter dated 3 November 2015 to D2, having received no indication that the BG would be extended, it proceeded cautiously to call on the BG before it expired on 12 November 2015. It reads as follows: ThyssenKrupp Industries (M) Sdn Bhd Malayan Banking Berhad (3813-K) Kuala Lumpur Trade Finance Centre Level 8, Menara Hap Seng Jalan P. Ramlee 50250 Kuala Lumpur By Speed Post/Courier/Hand Delivery 5207/COMM/SSK/504639 03.11.2015 Reg.: Invocation of Advance Bank Guarantee No.99140BGF5966287 dated 03.06.2013 executed by you on behalf of Ranhill E & C Sdn. Bhd. Ref.: Our Order No. TK(M)/3M0037/PO-002 dated 15.05.2013 Our Letter No. 5207/COMM/SSK 503567 dated 06.08.2015 Our Letter No. 5207/COMM/SSK 504056 dated 22.09.2015 Dear Sir, We have lodged our claim under the above referred letters and have asked you either to extend the Bank Guarantee or remit us the amount of Bank Guarantee by way of Demand Draft. Since we have neither received the extension nor the amount of Bank Guarantee and Ranhill E & C Sdn. Bhd., has neglected and failed to comply with their contractual obligations against our above stated Order, we now call upon you to make immediate payment of the full amount of the abovementioned bank guarantee of RM2,450,000/-. In case you fail or neglect to effect payment to us immediately, you will be liable and we will be entitled to interest @ 18% p.a. on the amount of the Bank Guarantee from the date the amount is due up to the date of final payment. Please arrange for immediate remittance. 26 Thanking you, Yours faithfully, THYSSENKRUPP INDUSTRIES (M) SDN. BHD. - signed – [30] The Plaintiff submitted that D1's action in calling on the BG without prior notice to the Plaintiff is an indication of their bad faith and unconscionable conduct. In the first place there is no contractual condition that D1 must give a prior notice in writing to the Plaintiff before the call on the BG is made. Secondly, D1 had by their letter dated 5 November 2015 to the Plaintiff (Exhibit P 18 of Enclosure 28) which expressly referred to the Plaintiff's letter of 4 November 2015, explained why it was constrained to call on the BG and also pointed out the Plaintiff's various defaults in the completion of the Works. More importantly it stated categorically that it had not received any extension of the BG which had been previously extended till 12 November 2015. With the BG expiring round the corner and with the Plaintiff expressing in strong language in not wanting or willing to extend the BG, it could hardly be said that D1 was proceeding surreptitiously or that there was something sinister or suspicious in D1's conduct to call on the BG. It was more a case where any negotiations between the Plaintiff and D1 had reached an impasse. D1 can hardly be faulted to call on the 27 BG and if only the Plaintiff had agreed to extend the BG, D1 would not need to call on the BG, then expiring on 12 November 2015. There was nothing unconscionable in the circumstances in which the call was made. [31] As was observed by his Lordship Ramly Ali JCA (now FCJ) in the Court of Appeal in Malaysian Refining Company Sdn BHD v Sumatec Engineering And Construction Sdn Bhd [2011] 7 CLJ 21 at p 35: "[37] The respondent also argued that it was unconscionable on part of the appellant to make the call on the bank guarantee when negotiations were ongoing when the demand was issued. The evidence shows otherwise - Negotiations had been unduly prolonged and had reached stalemate. The calling of a bank guarantee under such circumstances, particularly when the expiry date of the bank guarantee is approaching and the negotiations had reached stalemate, cannot amount to unconscionable conduct on part of the beneficiary (the appellant)." [32] D1 had also made payments in advance to the Plaintiff as tabled in Attachment 2 of the Plaintiff's Statement of Claim which includes the Advance Payment of RM2,450,000.00 which was secured by the BG and in respect of which the sum of RM858,476.48 had already been recouped. 28 The total amount advanced by D1 to the Plaintiff as at 9 January 2015 as appearing in Attachment 2 in the Statement of Claim is reproduced below: Ref No Amount (RM) Date Received Remark ADV-01 2,450,000.00 15-Jul-13 Paid to RE&C ADV-02 332,983.59 14-Oct-14 Direct Payment to Suppliers ADV-03 1,833,017.42 Direct Payment to Suppliers [33] Whilst the RM2.45 million is Advance Payment pursuant to Clause 19.1 of the Contract, the further sums of RM332,983.59 and RM1,833,017.42 were at the request of the Plaintiff for it had some cash flow problems and to differentiate it from the Advance Payment, it shall be called the "Payments made in Advance". These payments were not due for any works done by the Plaintiff but merely to buffer the Plaintiff's dire financial condition as it sought to pay its creditors. [34] Taken in that light the demand by D1 on the BG can hardly be said to be unconscionable. Since the BG was particularly that for securing the Advance Payment made by D1 to the Plaintiff, the demand cannot however be for the whole amount though D1 had indicated that it would be claiming from the Plaintiff the sum of RM8.45 million arising out of the failure of the Plaintiff to complete both the Initial Scope of Works and the New Scope of 29 Works. Neither can D1 claim under the BG the 2 sums being Payments made in Advance on behalf of the Plaintiff. As the BG is for a sum not exceeding RM2.45 million, this Court is perfectly entitled to vary the ex- parte injunction obtained to restrain the payment out by D2 to D1 for the payment in excess of RM1,591,523.52. This is arrived at by taking Advance Payment made deducting the amount already recouped from the 16 Invoices submitted i.e. RM2.45 million – RM858,476.49 = RM1,591,523.52. Indeed, going by the Plaintiff's own statement in paragraph 40 of its affidavit in support (Enclosure 11) of the injunction application, the Project was said to have been completed on 15 October 2015 and as contractually the BG for the Advance Payment must be kept valid for 90 days beyond Completion of Works and Services as found at page 31 of Enclosure 11. There was therefore no need to ask for confirmation from D1 that no further extension of the BG would be required as there was the continuing contractual obligation to keep the BG valid until the expiry of the 90 days beyond Completion of Works and Services. The accusation by the Plaintiff that D1 would have acted unconscionably and even unjustly enriching itself if it were to ask for further extension or call on the BG was clearly misplaced. 30 Whether the non-payment on Invoices 17, 18 and 1 A/W by D1 are merely contractual disputes and nothing unconscionable [35] At a site meeting on 23 and 24 April 2014 attended by the representatives of both the Plaintiff and D1, the fact of delay and slow progress in the works were highlighted to the Plaintiff. Both parties signed off the Minutes of the Meeting appearing as Exhibit P 7 in D1's Affidavit in Reply Enclosure 23. The particulars of the delay in the said Minutes are summarised as follows in D1's Affidavit in Reply Enclosure 23 in Exhibit P 4 as follows: a. Lack of progress and resources in the past 3 to 4 weeks with Plaintiff being required to take remedial action; b. Stacking Path to be undertaken in priority; c. Cranes engaged by the 1st Defendant / Alstom due to inaction by the Plaintiff; d. Delay led to the Plaintiff agreeing to increase manpower by 50 workers by 1 May 2014; e. Apart from this a separate team to be engaged for other work; f. Another separate team for belt laying activities; 31 g. Another separate team for Stacker Reclaimer hydraulic to be confirmed by the Plaintiff. h. Painting work by the Plaintiff also slow and the Plaintiff agreed to double its efforts. [36] In the Minutes, D1 expressed their grave concerns over the need of the Plaintiff for further financial support from D1. The relevant parts of the Minutes signed off by the Site Manager of D1 and the CEO of the Plaintiff read as follows: "3.3 FINANCIAL SUPPORT 3.3.1 REC explained their financial difficulties which is preventing them to implement the above recovery plan. They further requested TKI to support them financially by funding RM515,000 so as to enable them (to) make the payment to the manpower agencies and for making the down payment to the new contractor. TKI agreed to support REC by remitting the said amount by next week. 3.3.2 REC confirmed that our (sic) confidence of generating further financial support from their own sources, further REC confirm that this current financial situation will not recur during the further execution of the project. 32 3.3.3 REC confirmed that apart from the balance payment to the manpower agencies, they have no further creditor currently. 3.3.4 TKI informed that this will be the last time that they will be supporting with such ad hoc payment and advised REC not to let such situation recur during the further execution." [37] D1 explained that all Invoices issued by the Plaintiff had been duly paid from Invoices 1-16. The payment of 80% of the amount claimed is pursuant to the Commercial Terms and Conditions of the Contract. As can be seen from the Attachment 1 to the Statement of Claim, there is a deduction of 10% for the Advance Payment against each Invoice and another 10% being the Retention Sum. Invoices 8 and 13 do not show any progress of work and D1 had explained that this is a wrong reflection when in reality both sums (RM515,000.00 and RM284,013.00) were in fact sums advanced by D1 to the Plaintiff due to the Plaintiff's financial constrains. [38] In a letter dated 16 April 2014, D1 wrote to the Plaintiff reiterating their continuing concerns over the delays caused by the Plaintiff's lack of resources, inadequate mobilization and non-payments to subcontractors resulting in some works coming to a complete standstill. See Exhibit P 6 in 33 D1's Affidavit Enclosure 23. This resulted in D1's and Alstom Services having to take mitigating steps to mobilize required resources to ensure good progress. The slow progress can be seen in Attachment 1 itself where the percentage of completion with the issuance of each Invoice is lamentably low. To compound the problem further, D1 stated that the Plaintiff stopped works or abandoned the works some time in late September 2014 without providing any reasons whatsoever. D1 emailed to the Plaintiff on 15 October 2014 informing them about the stoppage of work by the Plaintiff's workers and requesting the Plaintiff's intervention and immediate action to resume the works. There was no positive response to this email exhibited as Exhibit P 8 in D1's Affidavit Enclosure 23. [39] D1 went on in the same Affidavit to state that after abandoning the work some staff of the Plaintiff were on site but purely to carry out clearance works and removal of its assets and no work under the Contract was being carried out by the Plaintiff. [40] Constrained by the continuous delay caused by the Plaintiff culminating in the Plaintiff's abandonment of the works, D1 had to revise the scope of works under the Contract with the Plaintiff with the clear instruction to the Plaintiff that should it fail to perform the revised scope of 34 work according to the revised schedule and scope mentioned therein, D1 would be entitled to place orders directly to any other contractor and get the work completed at the cost, expense and risk of the Plaintiff. The said letter dated 7 November 2014 from D1 to the Plaintiff appears as Exhibit P 9 in Enclosure 23. [41] Under paragraph 1 of Exhibit P 9 D 1 wrote to the Plaintiff as follows: "1. TKI will engage REC's subcontractors directly from 1st November 2014 for the balance work to be undertaken by the individual subcontractors for which REC will have no objection. As TKI will be paying directly to the subcontractors of REC, REC shall not be entitled for these amounts under the above mentioned Work Order. All costs, charges expenses incurred by TKI in addition to the agreed price in the above referred Work Order, the same shall be recovered from REC in whatever manner possible as TKI may deem fit and proper. TKI shall enter into separate contracts with the following subcontractors for the respective scope of work mentioned below: ..." 35 [42] D1 further explained that even after revising the scope and giving opportunity to the Plaintiff to undertake the revised scope of works, the Plaintiff failed to undertake the revised scope of works and there was no other alternative for D1 but to get the work done through other contractors. D1 in its email dated 22 December 2014 (Exhibit P 10) informed the Plaintiff that such works done through other contractors to minimize the delays and the resultant penalties. [43] The Plaintiff did not dispute that there was delay leading to de- scoping of works and the Plaintiff's version of the delay was that it was caused by factors beyond its control including the late delivery of structural material at the site by third parties engaged by D1 resulting in the Plaintiff being unable to commence structural works according to schedule. The Plaintiff also blamed the delay on inclement weather. The Plaintiff contended that it had to do additional works for which the rate had not been specified as it was not within the Initial Scope of Work. See Plaintiff's letter to D1 dated 21 November 2014 marked as Exhibit HKK 14 in the Plaintiff's Affidavit in Support Enclosure 11. [44] There is some dispute as to the terms of the de-scoping of the work. The Plaintiff contended that it must not exceed the total contract price but 36 D1 contended that it is at the Plaintiff's cost, expense and risk. The Plaintiff further argued that it had made it clear to D1 by its letter of 7 November 2014 Exhibit HKK 14 that any reduction and/or de-scoping would be subject to the Plaintiff, D1 and the subcontractors first reaching an agreement demarcating the obligations of the various parties in the light of the New Scope of Works. The Plaintiff expressed concern that some of the reduced scope of works included works in respect of which the Plaintiff had already carried out substantial works. The Plaintiff further took the stand that it had to the best of its ability performed the New Scope of Works up until February 2015 when for reasons best known to itself, D1 wrongfully and in bad faith restricted or denied the Plaintiff access to the Project Site, preventing the Plaintiff from carrying out any further works. [45] Little wonder that there is now disputes on whether and how much is due to the Plaintiff under Invoice No. 17 dated 31 December 2014 with the Plaintiff contending that it had completed the works and D1 arguing that the Plaintiff had abandoned the works late September 2014. Likewise the non- payment of Invoice No.18 which D1 said were works done by the subcontractors for which D1 had paid the subcontractors. As for the additional Invoice 1 A/W, D1 contended that the works fall under Clause 2.2 and 2.3 of the Terms and Conditions for Services that read as follows: 37 "2.2 The Company can vary or alter the scope prior to the Company finalizing the engineering of the Equipment and Components. The Contractor shall accept such additions or alterations to the Scope of Work/Services without any additional cost to the Company/Customer up to 10% of the order quantity. The Contractor shall provide 10 man days (80 man hours) per modification free of cost. 2.3 Any item not mentioned in the Specifications but necessary for completion and achieving the Performance of Equipment and Components for the Project shall be part of the Scope of Services of the Contractor." [46] These are disputes which are not uncommon in a construction contract where there has been delay in completion. Both sides will have to call their witnesses with respect to the extent and scope of de-scoping and the terms of the New Scope of Work. Likewise the subcontractors will have to be called to ascertain who did what since there is a dispute. Genuine contractual disputes should not be elevated to the level of unconscionable conduct on the party calling on the BG in the absence of evidence, at the interlocutory stage of an injunction to restrain the call, pointing towards an unfair advantage, or an oppressive conduct or morally reprehensible 38 conduct. It certainly cannot be said, based on the factual matrix so far at this interlocutory stage, that there is a realistic inference of unconscionable conduct on D1's part, as laid down by the Federal Court in Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd (supra) the test at this interlocutory stage is that of a 'seriously arguable and realistic inference' test which would basically mean establishing a strong prima facie case. [47] In Sumatec Engineering's case (supra) the following circumstances were cited as evidence of the alleged unconscionable conduct on the part of Malaysian Refining Co ("MRC"): "[7] ... (a) there was an agreement in principle reached by the parties for the bank guarantee to be reduced. This was in tandem with the reduction in the scope of works from that originally contracted for between MRC and Sumatec. It referred to the minutes of the meeting between the parties held on 29 October 2009 stating that: 39 Liability, Warranty and Performance Bond: MRC confirmed that Sumatec could reduce the value of their performance bond in line with a value to be proposed by MRC. The original contract sum was RM47,846,688. This was reduced to a sum of approximately RM13m. (b) A provisional acceptance certificate had been issued to MRC for works performed to completion by Sumatec up to 31 May 2009. The certificate certified that the works completed up to 31 May 2009 by Sumatec was in the main accepted as satisfactory to MRC; (c) MRC had no claims for any LAD for any delay and neither had MRC raised any other complaints/disputes, if at all Sumatec was in default; (d) there was a one year gap between the date when the completed works was provisionally accepted and the date of the demand of the bank guarantee without any explanation by MRC; 40 (e) there is clear evidence of a reduction of Sumatec's scope of works under the contract to a region of about RM13m only. Accordingly, the demand on the bank guarantee for RM4,535,255.67 was equivalent to 40% of the value of the actual total contract sum. This amount was wholly disproportionate bearing in mind that the bank guarantee specifically sets the limit of the guaranteed sum at 10% of the contract sum; and (f) from the minutes of the meeting between the parties, it is evident that the parties had agreed in principle to reduce the value of the bank guarantee to reflect the reduction of Sumatec's scope of works and the reduction in the contract value. Notwithstanding the same, MRC proceeded to make a call on the bank guarantee. [8] MRC on the other had contended that the bank guarantee was unconditional in nature and on-demand in character and thus cannot be restrained from being called and for payment to be made out to it by BIMB." 41 [48] Based on the above contractual disputes, the Federal Court had no difficulty in agreeing with the Court of Appeal that there was no unconscionable conduct on the part of MRC to call on the bank guarantee. The Federal Court concluded as follows: "[43] In this appeal, Sumatec raised several incidences of the alleged unconscionable conduct on the part of MRC as particularised earlier in this judgment. These are factual matters which have been carefully evaluated and answered below in the Court of Appeal (see paras 32– 38 of the Court of Appeal judgment). The learned judges rightly concluded based on the materials before them, that unconscionability had not been proven to maintain the injunction granted below. We defer to these findings of facts by the Court of Appeal. We cannot find any reasons to justify an interference with the appellate judges' exercise of their discretion to set aside the injunction. It is unnecessary for us to add, minus or expand on the reasons given by the Court of Appeal to its negative finding of unconscionability on the part of MRC. We also agree with the Court of Appeal that the balance of convenience favoured refusal of the injunction." (emphasis added) 42 [49] The Plaintiff said it has a claim against D1 for unpaid Invoices amounting to RM4,632,155.00 made up as follows as alluded to in paragraph 34.1 and 35 of th Plaintiff's Affidavit Enclosure 11: Un-paid Invoices: a) Invoice 17 - RM 264,953.00 b) Invoice 18 - RM 521,997.00 c) Invoice 1A/W - RM 3,845,205.00 TOTAL RM 4,632,155.00 [50] The Plaintiff at the same time acknowledges that there is a sum of RM3,757,524.53 from monies advanced by D1 as set out in paragraph 34.2 of the Plaintiff's Affidavit Enclosure 11 as follows: a) Balance Advance Payment not recouped - RM1,591,523.52 b) ADV-2 - RM 332,983.59 c) ADV-3 - RM1,833,017.42 TOTAL RM3,757,524.53 [51] D1 on the other hand had indicated to the Plaintiff that it had incurred an additional sum of RM8.45 million to complete the Project as a result of 43 the delay occasioned by the Plaintiff and the need to engage the subcontractors at a higher costs. [52] Whether or not the Plaintiff and D1 could recover their respective claims have to be resolved by arbitration or litigation. For the moment based on a conflict of affidavits evidence from both the Plaintiff and D1 on critical issues of cause of delay, extent of de-scoping of the Initial Scope of Works, whether it was the Plaintiff or the subcontractors who have done the work in Invoice 17 and 18 and whether the Plaintiff can claim under Invoice 1 A/W for additional work done, are matters for the resolution at the trial of this action as to the Plaintiff's main relief which is a declaration that D1's call on the BG is tainted with unconscionability and thus unlawful and for damages to be assessed. [53] For the moment the Plaintiff has not discharged its burden of showing that prima facie it is unconscionable for D1 to call on the BG which this Court is of the view should be limited to an amount not exceeding RM1,591,523.52 being the amount not recouped from the Advance Payment. 44 Where does the balance of convenience lies? [54] Assuming for a moment and for the sake of argument, that there is a prima facie case of unconscionability, where then does the balance of convenience lie? The exercise to be undertaken has been laid down in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at p 509 where the House of Lords held: “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s; undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lies.” 45 [55] The Plaintiff contended that D1, though incorporated locally, is a company controlled from India, being a wholly-owned subsidiary of a foreign entity based in India and that the instruction of D1 to the bank D2 is for the sum of RM2.45 million to be paid to D1's office in Pune. The Plaintiff said that it was not in a position to ascertain the extent, if any of D1's assets in Malaysia. D1 has a paid-up capital of RM500,000.00. [56] This is a case where in all fairness, the fact that D1 is a foreign entity providing a service here, should not be a penalizing factor especially when by the Plaintiff's own admission a total sum of RM3,757,524.53 had been advanced to the Plaintiff by D1. The Plaintiff having enjoyed the benefit of the Advance Payment and the Payments made in Advance cannot now argue that their lack of known assets within jurisdiction would tilt the balance of convenience in the Plaintiff's favour. The Plaintiff would have known of D1 as a locally incorporated company wholly owned by a foreign entity from a company search with the Companies Commission of Malaysia. There was no problem for the Plaintiff then to accept the fact of D1 retaining 10% of every Invoice for the purpose of the retention sum which payment it is entitled against the provision of a Bank Guarantee for the value of the last 10% of the order value which was to be valid up to 30 April 2018 as provided for under the Contract. The Plaintiff has not 46 provided this Bank Guarantee which would mean that the Plaintiff is content to have D1 retaining this 10% of the order value until the retention period is over. The Plaintiff had not complained then; it cannot be heard to complain now as saying that D1 may not be able to pay the Plaintiff should the Plaintiff succeed at trial. [57] At any rate there would be correspondingly the retention sum of 10% that D1's client Alstom Services would have exacted from D1 and the monies due to Alstom Services for the completion of the Project. The fact that D1 could finish the Works and hence to complete the Project would mean that it has the financial resources for it and certainly not a fly-by-night operator. [58] If the Plaintiff is still anxious, that can be attended to by ordering that the amount of RM1,591,523.52 to be released by D2, be released to the solicitors' clients' account of D1's solicitors herein and the same be kept in an interest-earning account as stakeholders until the disposal of this suit. It is not for the Plaintiff to contend that the granting of the injunction would not cause any prejudice to D1 as the monies under the BG are secured with D2. It is sufficient to say that not being able to receive the monies that D1 is rightly entitled to in its effort to recoup the balance of the Advance 47 Payment is clearly a prejudice which monies if received, could be channelled to other projects that it is working on. Pronouncement [59] In the light of all the factors considered above, the ex-parte injunction is varied such that D1 is restrained from receiving from D2 a sum exceeding the sum of RM1,591,523.52 from the demand it made on the BG and that D2 be correspondingly restrained from so releasing. The sum of RM1,591,523.52 shall be released to D1's solicitors on record as stakeholders and the same shall be placed in the clients' account of the said solicitors earning interest until the disposal of this suit. [60] For completeness it should be added that throughout the hearing of the application, Miss Nabila Kamaruddin for D2 took a neutral stand and indicated that D2 shall abide by the decision of the Court. Costs shall be costs in the cause. [61] When this decision was made on 24 February 2016, Mr John Skelchy for the Plaintiff had asked for an interim stay of this order until the filing of a formal application by the Plaintiff for a stay of the order by Monday 29 February 2016. Mr A S Gill had no objection to a temporary interim stay 48 pending the filing of the application and its disposal. The Court therefore granted a temporary stay of the order. Erinford Injuction in Enclosure 34 [62] The Plaintiff subsequently on 26 February 2016, filed a Notice of Appeal to the Court of Appeal against the above order and proceeded to file an application to maintain the status quo between the parties pending the disposal of the appeal in the Court of Appeal. Effectively it is an Erinford injunction application as the application is for an injunction to restrain D1 from receiving and/or dealing with any money from the call on the BG until the disposal of the Appeal including a sum up to RM1,591,523.52. [63] The power of the Court in granting an Erinford injunction has been clearly spelled out in the case that bears its name in Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448 at p. 454 where Megarry J sagaciously and succinctly states the principle as follows: “I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant 49 has made out a sufficient case to have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative effects of granting or refusing and injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an 50 injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all." [64] The above passage and the principle that it enunciated have been cited with approval by our Federal Court in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147. [65] The Plaintiff stated that the test should be that, if the appeal is successful, it should not prove to be nugatory in that the act or the execution of the act in calling upon the BG would have been acted upon, with the result that the sums guaranteed which this Court had allowed to be released, would have been released to the detriment of the Plaintiff. As authority for this proposition, the case of Cobrain Holdings Sdn Bhd v Expertise International A&I (M) Sdn Bhd & Ors [2015] 11 MLJ 339 was cited where at p. 357 Justice Mary Lim J (now JCA) observed as follows: “[54] After hearing all parties, I granted the order. The second defendant has now filed an appeal against that grant of an Erinford- type of injunction. 51 [55] The legal principles for such an order are settled in the Federal Court decision of Subashini Rajasingam v Saravanan Thangathoray & Other Appeals [2008] 2 CLJ 1. The test being that ‘when a party is appealing, exercising his undoubted right of appeal the court ought to see that the appeal, if successful, is not nugatory’. [56] It cannot be denied that while the application for an interim injunction to restrain a call on the BG or to receive the benefits under the BG has already been dismissed, the Court always retains jurisdiction and power on the matter of stay or, in suitable cases, a grant of what is known as an Erinford-type of injunction. The plaintiff here has submitted that the appeal will be rendered nugatory because of the matters mentioned in paras 7 and 10 of the affidavit filed in support. At para 7, the plaintiff claims that the appeal will be rendered nugatory because the monies would be released by the third defendant to meet the call by the second defendant. As for para 10, the plaintiff claims that it will be prejudiced by the refusal to grant the injunction because damages will not be adequate. The plaintiff’s other banking facilities will also be affected if the BG is paid up. 52 [57] Although the consequence of a call may be in the terms and extent as described by the plaintiff, and it may well have been aware or taken to have been aware and agreed to such consequences when providing the BG in the first place, that does not necessarily mean that where the plaintiff has failed to secure an interlocutory injunction to stop such a call, an Erinford injunction cannot now be ordered; and that the plaintiff must simply wait till the appeal is resolved. The second defendant has argued that the appeal can still proceed but the second defendant must be allowed to proceed with the call and the third defendant to pay against the call. If the Plaintiff succeeds, the second defendant will just refund any or all monies received; and it is financially sound to make such refunds. [58] With respect, the Court disagrees. [59] The matters that lie at the heart of the interlocutory application and the substantive issues in the writ relate substantively to the same complaints; that there is unconscionability and conspiracy on the part of the first and second defendants in the manner already detailed above such that the second defendant’s reliance and call on the BG is unconscionable and must be restrained. The whole object of the 53 application and the writ is really the same and that is to restrain the call and/or the execution of such a call, if one has already been made; and that is what has happened here. That application has been refused. It is obvious that by the time the appeal against that refusal is heard, if there is no injunction ordered pending appeal, the call already made by the second defendant will have to be abided by and met by the third defendant. The focus of the injunction is on the call and the execution of the call; and not on the repayment. The appeal will certainly, in those circumstances be rendered academic and nugatory. [60] Furthermore, in the interests of justice and balancing the additional facts that the hearing of the substantive case has already been fixed for 12 August 2015; and that the BG is valid until 2017, there is greater urgency and reason to grant the Erinford-type injunction in the present facts. [61] The Court will therefore grant the orders sought in prayers (i) and (ii) till the hearing of the substantive case before the High Court or the appeal by the Court of Appeal on the plaintiff’s appeal in relation to the dismissal of encl 3, whichever is earlier; on the 54 undertaking as given by the plaintiff; with liberty to apply and with no order as to costs." [66] This Court does appreciate that a call on the BG and the execution of the call cannot be reversed in the event that the Plaintiff is successful on appeal and that an injunction is granted to restrain the execution of the call. By then the horse would have bolted so to speak and the BG would have been exhausted. The sum secured would have been paid out. From that perspective it can be said that the appeal if successful would be nugatory and that the Plaintiff's victory upon a successful appeal would be pyrrhic and purely academic save for damages for a wrongful call on the BG. [67] However this Court is not comfortable in confining the fact of nugatoriness to the act of call and the release of the sum secured that cannot be reversed. In a very real sense, all injunctions are about restraining a defendant from doing a particular act or compelling a defendant to do a particular act. The fact that an act that is sought to be restrained cannot be reversed if not restrained and that conversely an act that is mandated cannot be undone if not restrained, does not invariably mean that pending appeal, the status quo should be preserved merely because on appeal the injunction might be granted. Otherwise all 55 injunctions restraining an act from being done would suffer the same fate in that though it is dismissed on application, it has to be invariably granted on an Erinford application pending appeal, much to the chagrin of the successful party at first instance. [68] The fact that the act restrained or compelled cannot be undone once it is done is of course unarguable. What is more significant and substantial is really what is behind the act. In the case of a BG, there is nothing sentimental or sacred about it. It is the sum secured that is the substance of it. Hence the question of whether the appeal, if successful, would be nugatory, must be viewed holistically by asking if the sum released may be recovered. [69] Here the sum is ordered to be paid to D1's solicitors pending the outcome of the trial. Hence, there is little doubt that if the Plaintiff is successful after the trial to prove that the call on the BG had been wrongly made and that it was unconscionable in the circumstances of the case, the Plaintiff would in this case, be able to recover its money still and also be entitled to damages to be assessed. The same applies to an appeal from the above decision of this Court on the dismissal of the injunction application to restrain the call on the BG. 56 [70] The factor that if the appeal is successful it should not be nugatory, is only a factor that the Court in an Erinford injunction application, should take into consideration. There are other equitable factors that should bear upon a Court granting what is generally an equitable relief. If it can be shown that an applicant had acted inequitably or unconscionably then the Court would not grant the Erinford injunction. So too if the balance of convenience does not tilt in favour of the applicant or that damages would be an adequate remedy. [71] Megarry J in the Erinford Properties Ltd's case (supra) was careful to clarify as follows immediately after the proposition of law laid down for granting an Erinford injunction at p. 454: "There may, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)1, where, speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the 57 appeal, if successful, is not nugatory’. That was the principle which Pennycuick J applied in the Orion case2; and although the cases had not then been cited to me, it was on that principle, and not because I felt any real doubts about my judgment on the motion, that I granted counsel for the plaintiffs the limited injunction pending appeal that he sought. This is not a case in which damages seem to me to be a suitable alternative." (emphasis added) [72] In Cocoa Processors Sdn Bhd v United Malayan Banking Corp. Bhd. & Ors. [1989] 1 CLJ (Rep) p 436 the Plaintiff owed the 1st and 2nd Defendants quite a substantial sum of money secured by a debenture. Upon default receivers and managers were appointed over the properties and assets of the Plaintiff. The Plaintiff claimed for damages for wrongful appointment of the receivers and managers. The Plaintiff’s application for an injunction to restrain the Defendants from disposing, selling and dealing with its assets pending trial of the action was dismissed. The Court held that there was no serious issue to be tried. Pending appeal to the Supreme Court then, the Plaintiff applied for an Erinford injunction to preserve the status quo. In refusing the Erinford application, his Lordship Mohamed Dzaiddin J (as the former CJ then was) opined as follows at p 439: 58 “ ... I am of the view that whether or not the plaintiff succeeds in the appeal and in the main action will not be affected by its failure to obtain this further interim injunction. It must be remembered that the plaintiff’s claim against the defendants is for damages for wrongful appointment of receivers and managers. The 1st and 2nd defendants being a commercial and merchant bank respectively will no doubt satisfy any money judgment ordered by the Court. Therefore, responding to Mr. Bala’s fear and anxiety on behalf of the plaintiff, I must say quite confidently that there is no likelihood of a successful appeal against my decision being rendered nugatory. Secondly, a more serious issue to be considered here is the balance of convenience. Based on the facts and circumstances of the present case, I find the balance of convenience lay in favour of the injunction pending appeal being refused. I accept the submission of Miss Solomon that the assets of the plaintiff company had depreciated and the longer it remains in its present position, the greater the hardship being inflicted on the defendants. Further, in the event the plaintiff’s claim being dismissed, the assets having been depreciated quite considerably, the defendants may not be able to reap the fruits of their success under the debentures. On the other 59 hand, should the plaintiff succeed in its claim ultimately, for damages, the defendants will have no difficulty in settling the judgment. Lastly, I agree with Tunku Alina that in the present case damages seem to be a suitable and adequate remedy. The plaintiff would be adequately compensated in damages for the temporary damage between now and the date when its appeal is heard if my decision is reversed by the Supreme Court." (emphasis added) [73] As is evident above, the issue of nugatoriness was considered from the broader perspective of whether the banks as Defendants could satisfy any judgment that may be granted in the Plaintiff's favour and not so much that the Plaintiff's assets having been sold, cannot be reverted back to the Plaintiff. [74] Likewise in Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd (No. 2) [2002] 5 MLJ 662, the Plaintiff had failed in its application for an injunction compelling the Defendant to surrender vacant possession of the Defendant's land to the Plaintiff and to restrain the Defendant from interfering and obstructing the Plaintiff in carrying out its obligations under the "Oil Palm Operation and Maintenance Contract". The main reliefs in the writ action was a declaration that the Defendant had wrongfully 60 repudiated the said contract for no reasonable cause and damages to be assessed and for accounts inquiry into the fruits harvested. In dismissing the Plaintiff's application for an Erinford injunction application, his Lordship Ramly Ali J (now FCJ) set out his reasoning as follows at p 174: "In order to assist me in exercising my discretion on this matter, it is pertinent to see that there would be no impediment to the plaintiff enforcing any judgment in its favour should the plaintiff succeed in its intended appeal as well as the main writ. Whether a successful appeal by the plaintiff against my earlier decision being rendered nugatory or not, we have to go back to the plaintiff’s claim against the defendant in its writ and statement of claim. I have scrutinised all the prayers in the plaintiff’s statement of claim (as listed above) and satisfied that whether or not the plaintiff succeeds in the appeal and in the main action will not be effected (sic) by its failure to obtain the present Erinford injunction. There would be no impediment to the plaintiff enforcing any judgment in its favour should it succeed in its appeal and ultimately in its writ. There is no evidence to show that the defendant, would be in no position financially, to honour the judgment obtained by the plaintiff. Therefore, I must say quite confidently that there is no likelihood 61 of a successful appeal against my decision being rendered nugatory." (emphasis added) [75] Whilst this Court is not so convinced that the appeal if successful would be nugatory for the reason that the sum allowed to be released pursuant to the call on the BG has to be retained by D1's solicitors, this Court would proceed to consider where the relative convenience and hardship or prejudice would lie. It cannot be gainsaid that the call having been made before the expiry of the BG, the monies as may be determined by Court to be released, will be released either now to D1's solicitors or to D1 after the trial of the suit. In that sense, it is only a matter of time for D1 to receive the money, as may be held by Court, that it is rightly entitled. It is only a matter of when it will receive the money secured if it is entitled to receive it. Any damage suffered can be attended to now by making an order as to payment of interest for the time when the money is still held by the Bank D2. There is also the retention sum of 10% of the order value amounting to RM858,476.48 which would only be released after the Plaintiff has furnished a bank guarantee for the value of the last 10% of the order value which is to be valid up to 30 April 2018. The project has been completed and what is required is the finalization of the accounts. D1 in its call on D2 to pay had given the Bank instruction to make direct payment to 62 its branch in Pune, India. There is a danger that cannot be ignored altogether that upon finalization of accounts all surplus money might be remitted to D1's parent company in India. [76] However with respect to the Plaintiff, its financial position would have been altered significantly in that once the money is released, it would have to furnish the relevant security to the Bank for currently, the security is in the form of a corporate guarantee from its parent company. It would even have to come up with the full sum as may be required by the Bank. The hardship and prejudice to the Plaintiff cannot be dismissed as inconsequential or that it should have known about this when it received the Advanced Payment and furnished the BG. The reality of the situation is that the change in the Plaintiff's financial standing is no small matter whereas for D1, the situation cannot be worse or better save that there is the interest element to be attended to if payment is not made now but later. Both sides have not proceeded with any arbitration; the Plaintiff on the sum of RM4,632,155.00 which it said is due to it from D2 for Invoice 17,18 and 1A/W and D1 on the sum of RM8.45 million being the extra costs incurred in getting the subcontractors to complete the Work Order. The Plaintiff further had acknowledged that a sum of RM3,757,524.53 is owing to D1 63 from the balance of the Advance Payment of RM1,591,523.52 and the 2 Payments made in Advance to it of RM332,983.59 and RM1,833,017.42. [77] Weighing the respective factors in the scale of balance of convenience and seeing that the trial is just round the corner in the first week of June, which is hardly 3 months away, the Court would be inclined to maintain the status quo ante and to grant the Erinford injunction subject to terms. The Erinford injunction would be until the disposal of the appeal or the disposal of the trial of this case whichever is earlier. [78] The Plaintiff shall pay interest from 11 November 2015 (the date of call on the BG) to the date of disposal of trial or of the appeal whichever is earlier at the rate of 5% per annum to D1’s solicitors and the first payment, calculated until the 31 March 2016, shall be paid to D1’s solicitors as stakeholders by 31 March 2016 and the balance shall be on a monthly basis. Costs shall be costs in the cause. Dated: 21 March 2016 - signed - Y.A. TUAN LEE SWEE SENG Judge High Court Kuala Lumpur 64 For the Plaintiff/Applicant: John Skelchy, Vishal Kumar and Hilwa Bustam (Messrs James Monteiro) For the 1st Defendant/Respondent: A S Gill (Messrs A.S. Gill & Salina) For the 2nd Defendant/Respondent: Nabila Kamarudin (Messrs Christopher & Lee Ong) Dates of Decisions: 24 February 2016 (Enc 11) and 16 March 2016 (Enc 34)

Tika 2.6.0

22C-55-11/2015

PLAINTIF Ranhill E&C Sdn Bhd DEFENDAN 1. Thyssenkrupp Industries (M) Sdn Bhd; 2. Malayan Banking Berhad

21/03/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=efb29a75-6deb-43e8-9af7-47fafa253e4e&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) CIVIL SUIT NO: 22C-55-11/2015 BETWEEN RANHILL E&C SDN BHD ... PLAINTIFF (COMPANY NO: 742354-X) AND 1. THYSSENKRUPP INDUSRIES (M) SDN BHD (COMPANY NO: 1013967-A) 2. MALAYAN BANKING BERHAD (COMPANY NO: 3813-K) ... DEFENDANTS THE JUDGMENT OF Y.A. TUAN LEE SWEE SENG [1] This is an inter-parte hearing in Enclosure 11 as to whether the ex- parte injunction restraining the first Defendant ("D1") from receiving the sum of RM2.45 million under a Bank Guarantee issued by the second 2 Defendant Malayan Banking Berhad ("D2") and restraining D2 from paying out to D1 the said sum, should be confirmed, discharged or varied. The Project [2] A company known as Tanjung Bin Energy Issuer Bhd. Malaysia (“TBEI”) was tasked to administer and manage the construction of a 1,000 megawatt power plant located at Tanjung Bin Johor (“the Project”). TBEI in turn appointed Alstom Services Sdn Bhd (“Alstom Services”) to provide services of erection, commissioning and testing of a coal handling plant (“the Works”). [3] Alstom Services thereafter entered into an agreement with the D1 wherein it was to carry out the Works. D1 is a wholly owned subsidiary of Thyssenkrupp Industries India Pty Ltd and was incorporated on or around 15 August 2012. [4] D1 then appointed the Plaintiff to undertake the Works for the Project for a total price of RM24.5 million ("the Contract Sum") by its Letter of Intent dated 12 April 2013. The Letter of Intent set out the initial scope of Works required to be carried out by the Plaintiff in respect of the Project. This was followed by a work order W.O. No. TK(M)/3M0037/PO-002 dated 15 May 3 2013 to the Plaintiff in respect of the scope of works to be carried out ("the Work Order"). [5] The Letter of Intent, the Work Order together with the Commercial Terms and Conditions dated 9 April 2013 ("the Terms and Conditions") formed the salient parts of the Contract between the Plaintiff and D1. The initial scope of Works included unloading at site, handling, storage till erection, erection, testing, commissioning and supervision ("the initial Scope of Works"). [6] It was a term of the Contract that D1 was to provide an advance payment in the sum of RM2,450,000.00 to the Plaintiff being 10% of the Contract Sum for the commencement of the Initial Scope of Works by the Plaintiff (“the Advance Payment”). The Advance Payment was to be made against the submission of a bank guarantee in favour of D1. Under Annexure 1 of the Terms and Conditions, the Bank Guarantee which was to secure the Advance Payment, was to remain valid until the expiry of 90 days beyond the completion or performance of the Plaintiff’s scope of Works. [7] It should also be mentioned that the subsequent 80% of the order value shall be paid to the Plaintiff progressively against monthly 4 progressive reports and bills as certified by D1 and after 30 days from the date of submission of documents by the Plaintiff to D1. In respect of the last 10% of the order value, the Plaintiff is entitled to payment upon (i) the completion of their works as signified by a performance guarantee test (as defined in the Contract) carried out by the Plaintiff and (ii) upon the provision of a bank guarantee for the value of the last 10% of the order value which was to be valid up to 30 April 2018. For the avoidance of doubt and confusion, this bank guarantee is separate and distinct from the Bank Guarantee for the Advance Payment. The Bank Guarantee ("BG") for the Advance Payment dated 3 June 2013 was duly furnished by the Plaintiff to D1; being issued by D2 to D1. Problems [8] The Plaintiff experienced various difficulties which it said was beyond its control in completing its Initial Scope of Works. Seeing that the Plaintiff was falling behind its schedule of Works, the Plaintiff and D1 entered into an agreement wherein the balance of the Initial Scope of Works of the Plaintiff would be de-scoped and awarded directly to the Plaintiff's subcontractors. The Plaintiff's obligation would then be reduced accordingly 5 ("the New Scope of Works") as captured in D1's letter to the Plaintiff dated 7 November 2014. [9] According to the Plaintiff, it had to the best of its ability performed the New Scope of Works up until February 2015 when for reasons best known to D1, D1 had wrongfully and/or in bad faith restricted and/or denied the Plaintiff access to the Project Site, thus preventing the Plaintiff from carrying out any further works. [10] D1's version is that the Plaintiff had abandoned the works in late September 2014. See paragraph 21(c) Enclosure 23 and Exhibit P8. At the time the Plaintiff abandoned the works, the progress for the works by the Plaintiff was only 32.26% as evidenced by Exhibit P 11 in Enclosure 23. This is the Plaintiff's own document annexed to its Statement of Claim. As can be seen up to Claim No. 16 dated 29 December 2015 the total progress of the works stood at 32.36%. [11] The Advance Payment had been deducted from every Progress Claim by deduction of 10% of the amount payable. The work, having stopped, there was the problem that the balance Advance Payment would be not recoverable if not by a demand made on the Bank Guarantee. The Plaintiff had at the request of D1 extended the Bank Guarantee on 2 6 previous occasions to 12 August 2015 and then further to 12 November 2015. [12] The Plaintiff proceeded from their understanding that since the Plaintiff's project works have been performed, there is no longer any obligation to maintain the Bank Guarantee which was expiring on 12 November 2015 nor any entitlement by D1 to call on the same. The Plaintiff wrote as such to D1 by its letter of 4 November 2015 seeking also a resolution in respect of the Plaintiff's outstanding claims for additional works and/or variations. [13] D1 had written to the Plaintiff by their letter dated 3 November 2015 (Exhibit P 18 Enclosure 28) stating categorically that the Plaintiff had failed to perform the Work Order as evidenced by various communications between the parties in the past. D1 reiterated that the delay in the erection works was on account of the Plaintiff's inability to mobilize the agreed resources in time and this was inspite of the additional financial support from D1 in making payments in advance of the work to be done at the request of the Plaintiff to ease their financial burden. D1 impressed upon the Plaintiff that they had paid them a sum of RM9.2 million inspite of the Plaintiff not completing their scope of works. In summary D1 informed the 7 Plaintiff that they have incurred RM32.95 million till date to complete the scope of work in the Work Order of RM24.5 million, the difference being RM8.45 million, which is their financial loss purely attributable to the Plaintiff inability to perform the Work Order. The letter ended with the cryptic note that they were thus constrained to invoke the BG. Prayers [14] The Plaintiff rushed to Court with a Certificate of Urgency and obtained on 11 November 2015 an ex-parte injunction in Enclosure 11 on the following terms: (i) that parties are to appear on 16 December 2015 at 9.00 a.m. for the hearing of the Application; (ii) that an ad-interim order is granted that the 1st Defendant and/or their servants and/or their agents or otherwise are restrained and an ad-interim injunction is granted restraining them and each of them from receiving and/or dealing with any money from the call on the Malayan Banking Berhad’s Bank Guarantee for Advance Payment No. 99140BGF5966287 until the disposal of the hearing on 16 December 2015; and 8 (iii) that an ad-interim order is granted that the 2nd Defendant and/or their servants and/or their agents or otherwise are restrained and an ad-interim injunction is granted restraining them and each of them from making any payment whatsoever under the Bank Guarantee to the 1st Defendant or otherwise until the disposal of the hearing on 16 December 2015. [15] The ad-interim injunction was extended by consent of the parties and finally fixed for disposal on an inter-parte hearing before me on 24 February 2016. Whether the BG is an unconditional on demand BG [16] The operative words of the BG issued by the Bank D2 in favour of D1 read as follows: BANK GUARANTEE FOR ADVANCE PAYMENT WHEREAS THYSSENKRUPP INDUSTRIES (M) SDN. BHD., a company existing under the laws of Malaysia, having its registered office at No. 656, 2nd Floor, 4th Mile, Jalan Ipoh 51200, Kuala Lumpur, Malaysia (hereinafter called the ‘Company’) which expression shall unless repugnant to the context include its successors and permitted assigns have received order from ALSTOM SERVICES SDN BHD for on-shore activities including but not limited to THE 9 ERECTION AND COMMISSIONING OF THE COAL HANDLING PLANT FOR 1X100 MW POWER PLANT FOR TANJUNG BIN PROJECT AT MALAYSIA. WHREAS M/S RANHILL E & C SDN BHD having its office at Level 14, Wisma Perkeso, No. 155, Jalan Tun Razak, 50400 Kuala Lumpur (hereinafter referred to as the ‘Contractor’) which expression shall unless repugnant to the context includes its successors, administrators, representatives and permitted assigns have approached the Company and offered to undertake THE ERECTION, COMMISSIONING, COLD TRIALS, HOT TRIALS, PG TEST, SUBSTANTIAL COMPLETION & HANDING OVER TO CLIENT OF COAL HANDLING PLANT FOR 1+1X1000MW COAL FIRED POWER PLANT, TANJUNG BIN, JOHOR MALAYSIA (hereinafter referred to as the ‘Works and Services’) as per the requirements of the Company. WHEREAS the Company has accepted the offer of the Contractor for providing the works and services for the said Tanjung Bin, Malaysia Project, and have placed their Order No. TKI(M)/3M0037/PO-002 dated 15 May 2013 (hereinafter called the ‘Contract’) for the scope of Work as detailed in the contract at the price on the terms and subject to the conditions contained in the said contract. WHEREAS the Contractor has agreed to comply with all the terms and conditions of the said contract. WHEREAS according to the terms of the said contract the Contractor is required to provide a Bank Guarantee for RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY) being 10% mobilisation advance of the Contract price, before the Company makes an advance payment of RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY), in the form set out by the Company. 10 And whereas BEFORE THE ADVANCE PAYMENT AS AFORESAID IS MADE, THE Bank has at the request of the Contractor agreed to give its Guarantee as herein contained. NOW THIS WITNESSETH AS FOLLOWS: In consideration of the Company agreeing to make an advance payment of RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY), we, MALAYAN BANKING BERHAD (3813-K), KUALA LUMPUR TRADE FINANCE CENTRE, LEVEL 8, MENARA HAP SENG, JALAN P. RAMLEE, 50250 KUALA LUMPUR, (hereinafter referred to as ‘Bank’) which expression shall unless repugnant to the context include its successors and assigns, do hereby unconditionally and irrevocably undertake to pay to the Company merely on first demand and without any demur an amount not exceeding RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY) for any delay, default or failure on the part of the Contractor in complying the obligations and responsibilities undertaken by the Contractor or against any loss or damage or costs caused to or suffered by or that may be caused or suffered by the company by reasons of any delay, default or failure on the part of the Contractor to fulfil either wholly or in part or breach by the Contractor of any of the terms and conditions contained in the said contract and in the event the Contractor shall make any delays or defaults in carrying out any of the Works and Services under the said contract or otherwise in the observance and performance of any of the terms and conditions relating thereto in accordance with the true meaning and intent thereof. We, Bank do hereby undertake to make payment on first demand, without any demur and without recourse to the Contractor of such sum or sums not exceeding RM2,450,000.00 (RINGGIT MALAYSIA TWO MILLION FOUR HUNDRED FIFTY THOUSAND ONLY) as may be claimed by the Company, without requiring the Company to invoke any legal remedy that may be available 11 to it to compel the Bank to pay the same or to compel such performance by the Contractor. Notwithstanding anything to the contrary the decision of the Company as to whether the Contractor has committed any breach of the terms and conditions of the said contract and the extent of loss, damages, costs charges and expenses caused to or suffered by or that may be caused or suffered by the Company from time to time and the amount or amounts to which the Company is entitled by reason thereof will be final, conclusive and binding on the Bank and the Bank shall not be entitled to ask the Company to establish its claim or claims under this Guarantee but will pay the same on demand without any objection, and it shall not be open to the Bank to know the reason of or to investigate or to go into the merits of the demand or to question or to challenge the demand or to know any facts connected with the demand and the Bank shall not require any proof of liability of the Contractor to pay the amount to the Company. The right of the Company to recover from the Bank any amount under this Guarantee shall not be affected or suspended by reason of the fact that the dispute or disputes have been raised by the Contractor with regard to their liability or the proceedings are pending before tribunal/arbitrators/court, with regard thereto or in connection therewith. [17] As is evident from the clear and unambiguous words employed, the obligation of D2 as the Bank issuing the BG in favour of D1 is to pay the sum not exceeding the sum of RM2.45 million on a mere demand for it clearly says: ".....do hereby unconditionally and irrevocably undertake to pay to the Company merely on first demand and without any demur an amount not exceeding RM2,450,000.00 ..." The words of the BG are no 12 different from many unconditional and "on demand" guarantee that have come before the Courts for decision. One need to go no further than to refer to the Court of Appeal case of Karya Lagenda Sdn Bhd v. Kejuruteraan Bintai Kindenko Sdn Bhd & Anor [2007] 6 CLJ 24 where his Lordship Raus Sharif JCA (now PCA) spoke emphatically as follows: "[9] The learned High Court Judge ruled that the bank guarantee dated 27 June 2003 issued by the plaintiff in favour of the second defendant is an unconditional guarantee or “on demand bond” and all that is required to activate it is a written demand by the second defendant. The learned High Court Judge rejected the argument of the necessity for the second defendant to prove default on the part of the first defendant in performance of the building contract. We are in agreement with the learned High Court Judge. It is our judgment that the bank guarantee is a performance bond. Whether a performance bond is conditional or unconditional must depend on the terms of the bond itself (Teknik Cekap Sdn. Bhd. v. Public Bank Berhad [1995] 4 CLJ 697). In the present case, the relevant clause of the bank guarantee read as follows: If the contractor, unless relieved from the performance by any clause of the contract or by statute or by the decision of a tribunal of competence jurisdiction, shall in any respect fail to perform under the contract or commit any breach of his obligation there under, then the guarantor shall pay to the principal up to a total aggregate sum not exceeding the amount of RINGGIT MALAYSIA TWO MILLION SEVENTY FIVE THOUSAND 13 SEVEN HUNDRED AND SEN NINETY FOUR ONLY (RM2,075,700.94) on the principal’s demand notwithstanding any contestation of protest by the contractor or by the guarantor or by any third party, provided always that the total of all partial demands so made shall not exceed the aggregate sum of RINGGIT MALAYSIA TWO MILLION SEVENTY FIVE THOUSAND SEVEN HUNDRED AND SEN NINETY FOUR ONLY (RM2,075,700.94) and the guarantor’s liability to pay the principal as aforesaid shall correspondingly be reduced proportionate to any partial demand having been made as aforesaid. (emphasis added) [10] It is our judgment the above clause is a clear indication that the bank guarantee is an unconditional and “on demand” bank guarantee. Payment should therefore be effected by the plaintiff notwithstanding any contestation by the first defendant or the plaintiff when a valid demand is made by the second defendant. In this case there is no dispute that several demands were made by the second defendant, claiming from the plaintiff for the full sum of the bank guarantee amounting to RM2,075,700.94 due to non-performance of the building contract. [11] We are of the view, since the bank guarantee was an unconditional and “on demand” bank guarantee, there is no necessity for the demand letter as contended by the first defendant to expressly assert that the first defendant had failed to perform or breached the underlying building contract. Hence, the High Court Judge’s finding on this issue is not erroneous. 14 [12] In fact the wording of the bank guarantee in the present case is identical to the wording or performance bonds/bank guarantees that have come before the courts. (Syarikat Perumahan Pegawai Kerajaan Sdn. Bhd. v Bank Bumiputra Malaysia Bhd. [1990] 2 CLJ 1052; [1990] 3 CLJ (Rep) 159, Cygal Bhd. v. Bandar Subang Sdn. Bhd. [2004] 3 CLJ 67, Hermis Interco BV Sdn. Bhd. v. Syarikat Pembinaan Hashnudin Sdn. Bhd. [1986] 1 MLJ 245, HSH Engineering & Construction Sdn Bhd v. Belton properties Sdn. Bhd. & Anor [2001] 2 CLJ 186 and LEC Contractors (M) Sdn. Bhd. v. Castle Inn Sdn Bhd & Anor [2000] 3 CLJ 473). In all these cases the courts have consistently held that such guarantee/bond is an ‘unconditional bond’ or an ‘on demand bond’. We have no reason to interpret differently." [18] The business community knows the significance and more importantly the strength of a Bank Guarantee. It is what it says it will do and no less than a licensed bank declaring that it will pay upon demand. It is a separate contract between the Bank and the Beneficiary of the Guarantee. It is apart from the underlying contract between the Beneficiary and its contracting party. Sure there are exceptions where a Bank for example that had given such a Guarantee might be restrained from making payment upon a demand being made on it to pay. It is the kind of exception that underscores the general rule; the general rule being payment made 15 forthwith upon demand without demur, protestation, proof of damage and the like. [19] Here for instance D1 would like the Court to believe that though the BG was issued in the context of the requirement of Clause 19.1 of the Contract to secure the payment back of the Advance Payment made by D1 to the Plaintiff, it was actually wide enough to cover any failure of performance of the Contract by the Plaintiff. However we cannot ignore the context here as the context both circumscribe and confine the ambit and scope of the BG and the title to the BG being a "BANK GUARANTEE FOR ADVANCE PAYMENT" both clarify and confirm what the BG is for. Both the background and backdrop for the issuance of the BG cannot be discarded and dismissed. The purpose cannot be extended to the performance of the Contract generally as that was not the intention of the parties at the outset and so it cannot be allowed to obscure the obvious merely because it is couched in absolute and all-encompassing terms. [20] Having held that the BG is for securing the Advance Payment and not something else, the question to be considered next is whether the Beneficiary D1 here may make a demand for the whole sum guaranteed of RM2.45 million. 16 Whether the demand of D1 on the BG is unconscionable [21] The law on payment out under a Banker's Guarantee or Performance Bond has developed to now allow a restrain on such payment out on ground not only of fraud but also of unconscionability as well. The watershed case is that of the authoritative pronouncement of the Federal Court in Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2014] 4 MLJ 1. The Federal Court speaking through his Lordship Hamid Embong FCJ, endorsed the approach taken by the Court of Appeal as follows: “[17] The Court of Appeal used the following tests and principles in coming to its conclusion, in determining the issue at hand as found in the following passages from its judgment: (i) The principle concerning ‘unconscionability’ was initially propounded by Lord Denning in the case of Lloyds Bank v Bundy [1975] QB 326 where it was held that unconscionable transaction between parties may be set aside by the court of equity. This ‘unconscionable’ category is said to extend to all cases where unfair advantage has been gained by an unconscientious use of power by a stronger party against 17 a weaker (see also Halsbury’s Law of England, (3rd Ed), Vol 17 [1956] at p 682). (ii) On an application for relief against unconscionable conduct, the court looks to the conduct of the party attempting to enforce, or retain benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so (see Commercial Bank of Australia Ltd v Amadio and Another [1983] 46 ALR 402). (iii) In the Singapore High Court, Lai Kew Chai J in the case of Min Thai Holdings Pte Ltd v Suniable Pte Ltd & Anor [1999] 2 SLR 368 opined that ‘the concept of unconscionability involves unfairness, as distinct from dishonesty or fraud, or conduct so reprehensible or lacking in good faith that a court of conscience would either restrain the party or refuse to assist the party’. (iv) It is not possible to define ‘unconscionability’ other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute ‘unconscionability’ would have to depend on the facts of each case. This is a 18 question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorization (see Dauphin Offshore Engineering and Trading Pte Ltd v The Private Office of HRH Sheikh Sultan bin Khadifa bin Zayed Al-Nahyan [2000] 1 SLR (R) 117; and Shanghai Electric Group Co Ltd v PT Merak Energi Indonesia [2010] 2 SLR 329) (v) Based on the above considerations, we are of the view that there is no simple formula that would enable the court to ascertain whether a party had acted unconscionably in making a call on an on-demand performance bond or bank guarantee. In the final analysis, whether or not ‘unconscionability’ has been made out is largely dependent on the facts or each case. In every case where ‘unconscionability’ is made out, there would always be an element of unfairness or some form of conduct which appears to be performed in bad faith. (vi) In Bocotra Construction Pte Ltd v AG [1995] 2 SLR (R) 262, the Singapore Court of Appeal, stated that ‘a higher degree of strictness applies, as the applicant will be required to 19 establish a clear case of fraud or unconscionability in the interlocutory proceedings. It is clear that mere allegations are insufficient’.” ... “[39] We are of the considered view that the 'seriously arguable and realistic inference' test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a ‘strong prima facie case’ was utilized by the Court of Appeal at the intermediate appeal stage. And the Court of Appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish ‘unconscionability’ there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of ‘unconscionability’ which would basically mean establishing a strong prima facie 20 case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of ‘unconscionability’ being committed by the beneficiary (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of ‘unconscionability’ should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man.” (emphasis added) [22] In Kejuruteraan Bintai Kindenko Sdn Bhd v. Nam Fatt Construction Sdn Bhd & Anor [2011] 7 CLJ 457 it was observed as follows: "[61] A performance bond is basically a form of security for the performance of the underlying contract between the parties. Usually the underlying contract between the parties provides for the requirement of a performance bond to be issued by a bank for the benefit of the beneficiary in the event of non-performance of the other party of the contractual obligations between them. The underlying 21 purpose of a performance bond is to provide a security which is to be readily, promptly and assuredly realisable when the prescribed event occurs, as stipulated in the underlying contract. [62] On the one hand a beneficiary under a performance bond should be protected as to the integrity of the security he has in case of non-performance by the party on whose account the performance bond was issued. On the other hand, a performance bond can be used as an oppressive instrument. And in the event that a beneficiary calls on the performance bond in circumstance where there is prima facie evidence of fraud or unconscionability, the court should step in to intervene at the interlocutory stage to restrain him from making such a call until the whole matter had been investigated and determined (see: GHL Pte Ltd v. Unitrack Building Construction Pte Ltd (supra)." [23] Admittedly, it is easier to discern what is "unconscionable" than it is to define it; easier to see it when it is there than to spell it out. [24] Applying the enunciation of the additional ground of "unconscionability" to the factual matrix of this case, the question is 22 whether the beneficiary D1 could be said to have acted unconscionably in calling on the BG. [25] The Plaintiff admits that under the Contract, D1 made an Advance Payment to the Plaintiff of RM2.45 million after the Plaintiff had furnished a BG for the said sum from D2 to D1. This sum was for the express purpose of helping the Plaintiff to mobilize its staff to the site to commence the Works. There is no doubt that this sum advanced has to be repaid and the repayment was made by deducting 10% from every Certificate of Progress Billing as can be seen from the Plaintiff's own document attached to its Statement of Claim marked as Attachment 1 and summarised below as follows: Attachment 1 Invoice No. Date Total Amount (RM) 100% of Total Amount (RM) Completion Less Advance 10% Less Retention 10% Net Payable Amount 1 31.10.2013 360,390.34 450,487.93 1.84% 45,048.79 45,048.79 360,390.34 2 25.11.2013 226,459.73 283,066.65 1.16% 28,307.46 28,307.46 226,459.73 3 22.01.2014 279,995.08 349,993.85 1.43% 34,999.38 34,999.38 279,995.0 4 08.02.2014 218,183.26 272,729.08 1.11% 27,272.91 27,272.91 218,183.26 5 05.03.2014 154,963.13 193,703.91 0.79% 19,370.39 19,370.39 154,963.13 6 21.03.2014 186,793.99 233,492.49 0.95% 23,349.25 23,349.25 185,793.99 7 25.04.2014 349,458.91 436,823.63 1.78% 43,682.36 43,682.36 349,458.91 8 28.04.2014 515,000.00 515,000.00 9 31.05.2014 533,086.70 666,358.38 2.72% 66,635.84 66,635.84 533,086.70 10 02.07.2014 698,536.77 873,170.97 3.56% 87,318.10 87,319.10 698,536.77 23 11 24.07.2014 566,007.97 707,509.96 2.89% 70,751.00 70,751.00 566,007.97 12 05.09.2014 815,987.00 1,019,984.00 4.16% 101,998.00 101,998.00 815,987.00 13 08.09.2014 284,013.00 284,013.00 14 02.10.2014 798,686.00 998,357.00 4.07% 99,836.00 99,836.00 798,686.00 15 12.11.2014 788,534.00 985,667.00 4.02% 98,567.00 98,567.00 788,534.00 16 29.12.2014 368,727.00 460,909.00 1.88% 46,091.00 46,091.00 368,727.00 17 31.12.2014 264,953.00 264,953.00 18 09.01.2015 521,997.00 652,496.00 2.66% 65,250.00 62,250.00 521,997.00 1 A/W 06.02.2015 3,845,205.00 3,845,205.00 [26] From the Plaintiff's own summary of invoices, payments received and the percentage of works completed, it can be seen that as at Invoice No. 16 dated 29 December 2014, only 32.36% of the Works have been completed. The total amount recouped from the 10% deducted for each of the Invoices issued was only RM858,725.00. It becomes plain obvious that D1 is not going to recover the whole of the RM2.5 million made to the Plaintiff as Advance Payment. [27] The whole purpose of the BG is to secure the repayment of Advance Payment made at the commencement of the Works as provided for in Clause 19.1 of the Contract. The Plaintiff had abandoned the Works in late September 2014 (Exhibit P 8 Enclosure 23). When requested by D1, the Plaintiff extended the BG due to expire on 12 May 2015 to 12 August 2015. Before the expiry of the first extension of the BG, D1 wrote to the Plaintiff by its letter of 6 August 2015 stating that the extension was necessary 24 "Since contractual obligations against our above Order are yet to be fulfilled." There was another extension to 12 November 2015 (second extension). [28] Before the expiry of the second extension, the Plaintiff wrote to D1 by letter dated 4 November 2015 expressing its utter disappointment with D1 for not paying the sum of RM3,845, 205.00 which the Plaintiff said was due under Invoice 1 A/W dated 6 February 2015 for addition/variation works done which it said D1 had wholly refused, failed and/or neglected to approve or make payment for these works. See Exhibit HKK 15 in Enclosure 11. It expressed in no uncertain terms that "Any requirement for further extension of the Banker Guarantee or even a call on the same would certainly amount to unconscionable conduct on your part as that would on top of already depriving us of the RM3,845,205.00, seek to cause further financial damage to us and further unjustly enrich yourself." The Plaintiff did not raise any objections to both the first and second extensions of the BG. D1 contended that the Plaintiff is now estopped from contending that their Contract had been completed or that any request for further extension would be unconscionable. 25 [29] Perhaps D1 had gotten wind of this and so by their letter dated 3 November 2015 to D2, having received no indication that the BG would be extended, it proceeded cautiously to call on the BG before it expired on 12 November 2015. It reads as follows: ThyssenKrupp Industries (M) Sdn Bhd Malayan Banking Berhad (3813-K) Kuala Lumpur Trade Finance Centre Level 8, Menara Hap Seng Jalan P. Ramlee 50250 Kuala Lumpur By Speed Post/Courier/Hand Delivery 5207/COMM/SSK/504639 03.11.2015 Reg.: Invocation of Advance Bank Guarantee No.99140BGF5966287 dated 03.06.2013 executed by you on behalf of Ranhill E & C Sdn. Bhd. Ref.: Our Order No. TK(M)/3M0037/PO-002 dated 15.05.2013 Our Letter No. 5207/COMM/SSK 503567 dated 06.08.2015 Our Letter No. 5207/COMM/SSK 504056 dated 22.09.2015 Dear Sir, We have lodged our claim under the above referred letters and have asked you either to extend the Bank Guarantee or remit us the amount of Bank Guarantee by way of Demand Draft. Since we have neither received the extension nor the amount of Bank Guarantee and Ranhill E & C Sdn. Bhd., has neglected and failed to comply with their contractual obligations against our above stated Order, we now call upon you to make immediate payment of the full amount of the abovementioned bank guarantee of RM2,450,000/-. In case you fail or neglect to effect payment to us immediately, you will be liable and we will be entitled to interest @ 18% p.a. on the amount of the Bank Guarantee from the date the amount is due up to the date of final payment. Please arrange for immediate remittance. 26 Thanking you, Yours faithfully, THYSSENKRUPP INDUSTRIES (M) SDN. BHD. - signed – [30] The Plaintiff submitted that D1's action in calling on the BG without prior notice to the Plaintiff is an indication of their bad faith and unconscionable conduct. In the first place there is no contractual condition that D1 must give a prior notice in writing to the Plaintiff before the call on the BG is made. Secondly, D1 had by their letter dated 5 November 2015 to the Plaintiff (Exhibit P 18 of Enclosure 28) which expressly referred to the Plaintiff's letter of 4 November 2015, explained why it was constrained to call on the BG and also pointed out the Plaintiff's various defaults in the completion of the Works. More importantly it stated categorically that it had not received any extension of the BG which had been previously extended till 12 November 2015. With the BG expiring round the corner and with the Plaintiff expressing in strong language in not wanting or willing to extend the BG, it could hardly be said that D1 was proceeding surreptitiously or that there was something sinister or suspicious in D1's conduct to call on the BG. It was more a case where any negotiations between the Plaintiff and D1 had reached an impasse. D1 can hardly be faulted to call on the 27 BG and if only the Plaintiff had agreed to extend the BG, D1 would not need to call on the BG, then expiring on 12 November 2015. There was nothing unconscionable in the circumstances in which the call was made. [31] As was observed by his Lordship Ramly Ali JCA (now FCJ) in the Court of Appeal in Malaysian Refining Company Sdn BHD v Sumatec Engineering And Construction Sdn Bhd [2011] 7 CLJ 21 at p 35: "[37] The respondent also argued that it was unconscionable on part of the appellant to make the call on the bank guarantee when negotiations were ongoing when the demand was issued. The evidence shows otherwise - Negotiations had been unduly prolonged and had reached stalemate. The calling of a bank guarantee under such circumstances, particularly when the expiry date of the bank guarantee is approaching and the negotiations had reached stalemate, cannot amount to unconscionable conduct on part of the beneficiary (the appellant)." [32] D1 had also made payments in advance to the Plaintiff as tabled in Attachment 2 of the Plaintiff's Statement of Claim which includes the Advance Payment of RM2,450,000.00 which was secured by the BG and in respect of which the sum of RM858,476.48 had already been recouped. 28 The total amount advanced by D1 to the Plaintiff as at 9 January 2015 as appearing in Attachment 2 in the Statement of Claim is reproduced below: Ref No Amount (RM) Date Received Remark ADV-01 2,450,000.00 15-Jul-13 Paid to RE&C ADV-02 332,983.59 14-Oct-14 Direct Payment to Suppliers ADV-03 1,833,017.42 Direct Payment to Suppliers [33] Whilst the RM2.45 million is Advance Payment pursuant to Clause 19.1 of the Contract, the further sums of RM332,983.59 and RM1,833,017.42 were at the request of the Plaintiff for it had some cash flow problems and to differentiate it from the Advance Payment, it shall be called the "Payments made in Advance". These payments were not due for any works done by the Plaintiff but merely to buffer the Plaintiff's dire financial condition as it sought to pay its creditors. [34] Taken in that light the demand by D1 on the BG can hardly be said to be unconscionable. Since the BG was particularly that for securing the Advance Payment made by D1 to the Plaintiff, the demand cannot however be for the whole amount though D1 had indicated that it would be claiming from the Plaintiff the sum of RM8.45 million arising out of the failure of the Plaintiff to complete both the Initial Scope of Works and the New Scope of 29 Works. Neither can D1 claim under the BG the 2 sums being Payments made in Advance on behalf of the Plaintiff. As the BG is for a sum not exceeding RM2.45 million, this Court is perfectly entitled to vary the ex- parte injunction obtained to restrain the payment out by D2 to D1 for the payment in excess of RM1,591,523.52. This is arrived at by taking Advance Payment made deducting the amount already recouped from the 16 Invoices submitted i.e. RM2.45 million – RM858,476.49 = RM1,591,523.52. Indeed, going by the Plaintiff's own statement in paragraph 40 of its affidavit in support (Enclosure 11) of the injunction application, the Project was said to have been completed on 15 October 2015 and as contractually the BG for the Advance Payment must be kept valid for 90 days beyond Completion of Works and Services as found at page 31 of Enclosure 11. There was therefore no need to ask for confirmation from D1 that no further extension of the BG would be required as there was the continuing contractual obligation to keep the BG valid until the expiry of the 90 days beyond Completion of Works and Services. The accusation by the Plaintiff that D1 would have acted unconscionably and even unjustly enriching itself if it were to ask for further extension or call on the BG was clearly misplaced. 30 Whether the non-payment on Invoices 17, 18 and 1 A/W by D1 are merely contractual disputes and nothing unconscionable [35] At a site meeting on 23 and 24 April 2014 attended by the representatives of both the Plaintiff and D1, the fact of delay and slow progress in the works were highlighted to the Plaintiff. Both parties signed off the Minutes of the Meeting appearing as Exhibit P 7 in D1's Affidavit in Reply Enclosure 23. The particulars of the delay in the said Minutes are summarised as follows in D1's Affidavit in Reply Enclosure 23 in Exhibit P 4 as follows: a. Lack of progress and resources in the past 3 to 4 weeks with Plaintiff being required to take remedial action; b. Stacking Path to be undertaken in priority; c. Cranes engaged by the 1st Defendant / Alstom due to inaction by the Plaintiff; d. Delay led to the Plaintiff agreeing to increase manpower by 50 workers by 1 May 2014; e. Apart from this a separate team to be engaged for other work; f. Another separate team for belt laying activities; 31 g. Another separate team for Stacker Reclaimer hydraulic to be confirmed by the Plaintiff. h. Painting work by the Plaintiff also slow and the Plaintiff agreed to double its efforts. [36] In the Minutes, D1 expressed their grave concerns over the need of the Plaintiff for further financial support from D1. The relevant parts of the Minutes signed off by the Site Manager of D1 and the CEO of the Plaintiff read as follows: "3.3 FINANCIAL SUPPORT 3.3.1 REC explained their financial difficulties which is preventing them to implement the above recovery plan. They further requested TKI to support them financially by funding RM515,000 so as to enable them (to) make the payment to the manpower agencies and for making the down payment to the new contractor. TKI agreed to support REC by remitting the said amount by next week. 3.3.2 REC confirmed that our (sic) confidence of generating further financial support from their own sources, further REC confirm that this current financial situation will not recur during the further execution of the project. 32 3.3.3 REC confirmed that apart from the balance payment to the manpower agencies, they have no further creditor currently. 3.3.4 TKI informed that this will be the last time that they will be supporting with such ad hoc payment and advised REC not to let such situation recur during the further execution." [37] D1 explained that all Invoices issued by the Plaintiff had been duly paid from Invoices 1-16. The payment of 80% of the amount claimed is pursuant to the Commercial Terms and Conditions of the Contract. As can be seen from the Attachment 1 to the Statement of Claim, there is a deduction of 10% for the Advance Payment against each Invoice and another 10% being the Retention Sum. Invoices 8 and 13 do not show any progress of work and D1 had explained that this is a wrong reflection when in reality both sums (RM515,000.00 and RM284,013.00) were in fact sums advanced by D1 to the Plaintiff due to the Plaintiff's financial constrains. [38] In a letter dated 16 April 2014, D1 wrote to the Plaintiff reiterating their continuing concerns over the delays caused by the Plaintiff's lack of resources, inadequate mobilization and non-payments to subcontractors resulting in some works coming to a complete standstill. See Exhibit P 6 in 33 D1's Affidavit Enclosure 23. This resulted in D1's and Alstom Services having to take mitigating steps to mobilize required resources to ensure good progress. The slow progress can be seen in Attachment 1 itself where the percentage of completion with the issuance of each Invoice is lamentably low. To compound the problem further, D1 stated that the Plaintiff stopped works or abandoned the works some time in late September 2014 without providing any reasons whatsoever. D1 emailed to the Plaintiff on 15 October 2014 informing them about the stoppage of work by the Plaintiff's workers and requesting the Plaintiff's intervention and immediate action to resume the works. There was no positive response to this email exhibited as Exhibit P 8 in D1's Affidavit Enclosure 23. [39] D1 went on in the same Affidavit to state that after abandoning the work some staff of the Plaintiff were on site but purely to carry out clearance works and removal of its assets and no work under the Contract was being carried out by the Plaintiff. [40] Constrained by the continuous delay caused by the Plaintiff culminating in the Plaintiff's abandonment of the works, D1 had to revise the scope of works under the Contract with the Plaintiff with the clear instruction to the Plaintiff that should it fail to perform the revised scope of 34 work according to the revised schedule and scope mentioned therein, D1 would be entitled to place orders directly to any other contractor and get the work completed at the cost, expense and risk of the Plaintiff. The said letter dated 7 November 2014 from D1 to the Plaintiff appears as Exhibit P 9 in Enclosure 23. [41] Under paragraph 1 of Exhibit P 9 D 1 wrote to the Plaintiff as follows: "1. TKI will engage REC's subcontractors directly from 1st November 2014 for the balance work to be undertaken by the individual subcontractors for which REC will have no objection. As TKI will be paying directly to the subcontractors of REC, REC shall not be entitled for these amounts under the above mentioned Work Order. All costs, charges expenses incurred by TKI in addition to the agreed price in the above referred Work Order, the same shall be recovered from REC in whatever manner possible as TKI may deem fit and proper. TKI shall enter into separate contracts with the following subcontractors for the respective scope of work mentioned below: ..." 35 [42] D1 further explained that even after revising the scope and giving opportunity to the Plaintiff to undertake the revised scope of works, the Plaintiff failed to undertake the revised scope of works and there was no other alternative for D1 but to get the work done through other contractors. D1 in its email dated 22 December 2014 (Exhibit P 10) informed the Plaintiff that such works done through other contractors to minimize the delays and the resultant penalties. [43] The Plaintiff did not dispute that there was delay leading to de- scoping of works and the Plaintiff's version of the delay was that it was caused by factors beyond its control including the late delivery of structural material at the site by third parties engaged by D1 resulting in the Plaintiff being unable to commence structural works according to schedule. The Plaintiff also blamed the delay on inclement weather. The Plaintiff contended that it had to do additional works for which the rate had not been specified as it was not within the Initial Scope of Work. See Plaintiff's letter to D1 dated 21 November 2014 marked as Exhibit HKK 14 in the Plaintiff's Affidavit in Support Enclosure 11. [44] There is some dispute as to the terms of the de-scoping of the work. The Plaintiff contended that it must not exceed the total contract price but 36 D1 contended that it is at the Plaintiff's cost, expense and risk. The Plaintiff further argued that it had made it clear to D1 by its letter of 7 November 2014 Exhibit HKK 14 that any reduction and/or de-scoping would be subject to the Plaintiff, D1 and the subcontractors first reaching an agreement demarcating the obligations of the various parties in the light of the New Scope of Works. The Plaintiff expressed concern that some of the reduced scope of works included works in respect of which the Plaintiff had already carried out substantial works. The Plaintiff further took the stand that it had to the best of its ability performed the New Scope of Works up until February 2015 when for reasons best known to itself, D1 wrongfully and in bad faith restricted or denied the Plaintiff access to the Project Site, preventing the Plaintiff from carrying out any further works. [45] Little wonder that there is now disputes on whether and how much is due to the Plaintiff under Invoice No. 17 dated 31 December 2014 with the Plaintiff contending that it had completed the works and D1 arguing that the Plaintiff had abandoned the works late September 2014. Likewise the non- payment of Invoice No.18 which D1 said were works done by the subcontractors for which D1 had paid the subcontractors. As for the additional Invoice 1 A/W, D1 contended that the works fall under Clause 2.2 and 2.3 of the Terms and Conditions for Services that read as follows: 37 "2.2 The Company can vary or alter the scope prior to the Company finalizing the engineering of the Equipment and Components. The Contractor shall accept such additions or alterations to the Scope of Work/Services without any additional cost to the Company/Customer up to 10% of the order quantity. The Contractor shall provide 10 man days (80 man hours) per modification free of cost. 2.3 Any item not mentioned in the Specifications but necessary for completion and achieving the Performance of Equipment and Components for the Project shall be part of the Scope of Services of the Contractor." [46] These are disputes which are not uncommon in a construction contract where there has been delay in completion. Both sides will have to call their witnesses with respect to the extent and scope of de-scoping and the terms of the New Scope of Work. Likewise the subcontractors will have to be called to ascertain who did what since there is a dispute. Genuine contractual disputes should not be elevated to the level of unconscionable conduct on the party calling on the BG in the absence of evidence, at the interlocutory stage of an injunction to restrain the call, pointing towards an unfair advantage, or an oppressive conduct or morally reprehensible 38 conduct. It certainly cannot be said, based on the factual matrix so far at this interlocutory stage, that there is a realistic inference of unconscionable conduct on D1's part, as laid down by the Federal Court in Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd (supra) the test at this interlocutory stage is that of a 'seriously arguable and realistic inference' test which would basically mean establishing a strong prima facie case. [47] In Sumatec Engineering's case (supra) the following circumstances were cited as evidence of the alleged unconscionable conduct on the part of Malaysian Refining Co ("MRC"): "[7] ... (a) there was an agreement in principle reached by the parties for the bank guarantee to be reduced. This was in tandem with the reduction in the scope of works from that originally contracted for between MRC and Sumatec. It referred to the minutes of the meeting between the parties held on 29 October 2009 stating that: 39 Liability, Warranty and Performance Bond: MRC confirmed that Sumatec could reduce the value of their performance bond in line with a value to be proposed by MRC. The original contract sum was RM47,846,688. This was reduced to a sum of approximately RM13m. (b) A provisional acceptance certificate had been issued to MRC for works performed to completion by Sumatec up to 31 May 2009. The certificate certified that the works completed up to 31 May 2009 by Sumatec was in the main accepted as satisfactory to MRC; (c) MRC had no claims for any LAD for any delay and neither had MRC raised any other complaints/disputes, if at all Sumatec was in default; (d) there was a one year gap between the date when the completed works was provisionally accepted and the date of the demand of the bank guarantee without any explanation by MRC; 40 (e) there is clear evidence of a reduction of Sumatec's scope of works under the contract to a region of about RM13m only. Accordingly, the demand on the bank guarantee for RM4,535,255.67 was equivalent to 40% of the value of the actual total contract sum. This amount was wholly disproportionate bearing in mind that the bank guarantee specifically sets the limit of the guaranteed sum at 10% of the contract sum; and (f) from the minutes of the meeting between the parties, it is evident that the parties had agreed in principle to reduce the value of the bank guarantee to reflect the reduction of Sumatec's scope of works and the reduction in the contract value. Notwithstanding the same, MRC proceeded to make a call on the bank guarantee. [8] MRC on the other had contended that the bank guarantee was unconditional in nature and on-demand in character and thus cannot be restrained from being called and for payment to be made out to it by BIMB." 41 [48] Based on the above contractual disputes, the Federal Court had no difficulty in agreeing with the Court of Appeal that there was no unconscionable conduct on the part of MRC to call on the bank guarantee. The Federal Court concluded as follows: "[43] In this appeal, Sumatec raised several incidences of the alleged unconscionable conduct on the part of MRC as particularised earlier in this judgment. These are factual matters which have been carefully evaluated and answered below in the Court of Appeal (see paras 32– 38 of the Court of Appeal judgment). The learned judges rightly concluded based on the materials before them, that unconscionability had not been proven to maintain the injunction granted below. We defer to these findings of facts by the Court of Appeal. We cannot find any reasons to justify an interference with the appellate judges' exercise of their discretion to set aside the injunction. It is unnecessary for us to add, minus or expand on the reasons given by the Court of Appeal to its negative finding of unconscionability on the part of MRC. We also agree with the Court of Appeal that the balance of convenience favoured refusal of the injunction." (emphasis added) 42 [49] The Plaintiff said it has a claim against D1 for unpaid Invoices amounting to RM4,632,155.00 made up as follows as alluded to in paragraph 34.1 and 35 of th Plaintiff's Affidavit Enclosure 11: Un-paid Invoices: a) Invoice 17 - RM 264,953.00 b) Invoice 18 - RM 521,997.00 c) Invoice 1A/W - RM 3,845,205.00 TOTAL RM 4,632,155.00 [50] The Plaintiff at the same time acknowledges that there is a sum of RM3,757,524.53 from monies advanced by D1 as set out in paragraph 34.2 of the Plaintiff's Affidavit Enclosure 11 as follows: a) Balance Advance Payment not recouped - RM1,591,523.52 b) ADV-2 - RM 332,983.59 c) ADV-3 - RM1,833,017.42 TOTAL RM3,757,524.53 [51] D1 on the other hand had indicated to the Plaintiff that it had incurred an additional sum of RM8.45 million to complete the Project as a result of 43 the delay occasioned by the Plaintiff and the need to engage the subcontractors at a higher costs. [52] Whether or not the Plaintiff and D1 could recover their respective claims have to be resolved by arbitration or litigation. For the moment based on a conflict of affidavits evidence from both the Plaintiff and D1 on critical issues of cause of delay, extent of de-scoping of the Initial Scope of Works, whether it was the Plaintiff or the subcontractors who have done the work in Invoice 17 and 18 and whether the Plaintiff can claim under Invoice 1 A/W for additional work done, are matters for the resolution at the trial of this action as to the Plaintiff's main relief which is a declaration that D1's call on the BG is tainted with unconscionability and thus unlawful and for damages to be assessed. [53] For the moment the Plaintiff has not discharged its burden of showing that prima facie it is unconscionable for D1 to call on the BG which this Court is of the view should be limited to an amount not exceeding RM1,591,523.52 being the amount not recouped from the Advance Payment. 44 Where does the balance of convenience lies? [54] Assuming for a moment and for the sake of argument, that there is a prima facie case of unconscionability, where then does the balance of convenience lie? The exercise to be undertaken has been laid down in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at p 509 where the House of Lords held: “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s; undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lies.” 45 [55] The Plaintiff contended that D1, though incorporated locally, is a company controlled from India, being a wholly-owned subsidiary of a foreign entity based in India and that the instruction of D1 to the bank D2 is for the sum of RM2.45 million to be paid to D1's office in Pune. The Plaintiff said that it was not in a position to ascertain the extent, if any of D1's assets in Malaysia. D1 has a paid-up capital of RM500,000.00. [56] This is a case where in all fairness, the fact that D1 is a foreign entity providing a service here, should not be a penalizing factor especially when by the Plaintiff's own admission a total sum of RM3,757,524.53 had been advanced to the Plaintiff by D1. The Plaintiff having enjoyed the benefit of the Advance Payment and the Payments made in Advance cannot now argue that their lack of known assets within jurisdiction would tilt the balance of convenience in the Plaintiff's favour. The Plaintiff would have known of D1 as a locally incorporated company wholly owned by a foreign entity from a company search with the Companies Commission of Malaysia. There was no problem for the Plaintiff then to accept the fact of D1 retaining 10% of every Invoice for the purpose of the retention sum which payment it is entitled against the provision of a Bank Guarantee for the value of the last 10% of the order value which was to be valid up to 30 April 2018 as provided for under the Contract. The Plaintiff has not 46 provided this Bank Guarantee which would mean that the Plaintiff is content to have D1 retaining this 10% of the order value until the retention period is over. The Plaintiff had not complained then; it cannot be heard to complain now as saying that D1 may not be able to pay the Plaintiff should the Plaintiff succeed at trial. [57] At any rate there would be correspondingly the retention sum of 10% that D1's client Alstom Services would have exacted from D1 and the monies due to Alstom Services for the completion of the Project. The fact that D1 could finish the Works and hence to complete the Project would mean that it has the financial resources for it and certainly not a fly-by-night operator. [58] If the Plaintiff is still anxious, that can be attended to by ordering that the amount of RM1,591,523.52 to be released by D2, be released to the solicitors' clients' account of D1's solicitors herein and the same be kept in an interest-earning account as stakeholders until the disposal of this suit. It is not for the Plaintiff to contend that the granting of the injunction would not cause any prejudice to D1 as the monies under the BG are secured with D2. It is sufficient to say that not being able to receive the monies that D1 is rightly entitled to in its effort to recoup the balance of the Advance 47 Payment is clearly a prejudice which monies if received, could be channelled to other projects that it is working on. Pronouncement [59] In the light of all the factors considered above, the ex-parte injunction is varied such that D1 is restrained from receiving from D2 a sum exceeding the sum of RM1,591,523.52 from the demand it made on the BG and that D2 be correspondingly restrained from so releasing. The sum of RM1,591,523.52 shall be released to D1's solicitors on record as stakeholders and the same shall be placed in the clients' account of the said solicitors earning interest until the disposal of this suit. [60] For completeness it should be added that throughout the hearing of the application, Miss Nabila Kamaruddin for D2 took a neutral stand and indicated that D2 shall abide by the decision of the Court. Costs shall be costs in the cause. [61] When this decision was made on 24 February 2016, Mr John Skelchy for the Plaintiff had asked for an interim stay of this order until the filing of a formal application by the Plaintiff for a stay of the order by Monday 29 February 2016. Mr A S Gill had no objection to a temporary interim stay 48 pending the filing of the application and its disposal. The Court therefore granted a temporary stay of the order. Erinford Injuction in Enclosure 34 [62] The Plaintiff subsequently on 26 February 2016, filed a Notice of Appeal to the Court of Appeal against the above order and proceeded to file an application to maintain the status quo between the parties pending the disposal of the appeal in the Court of Appeal. Effectively it is an Erinford injunction application as the application is for an injunction to restrain D1 from receiving and/or dealing with any money from the call on the BG until the disposal of the Appeal including a sum up to RM1,591,523.52. [63] The power of the Court in granting an Erinford injunction has been clearly spelled out in the case that bears its name in Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448 at p. 454 where Megarry J sagaciously and succinctly states the principle as follows: “I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant 49 has made out a sufficient case to have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative effects of granting or refusing and injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an 50 injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all." [64] The above passage and the principle that it enunciated have been cited with approval by our Federal Court in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147. [65] The Plaintiff stated that the test should be that, if the appeal is successful, it should not prove to be nugatory in that the act or the execution of the act in calling upon the BG would have been acted upon, with the result that the sums guaranteed which this Court had allowed to be released, would have been released to the detriment of the Plaintiff. As authority for this proposition, the case of Cobrain Holdings Sdn Bhd v Expertise International A&I (M) Sdn Bhd & Ors [2015] 11 MLJ 339 was cited where at p. 357 Justice Mary Lim J (now JCA) observed as follows: “[54] After hearing all parties, I granted the order. The second defendant has now filed an appeal against that grant of an Erinford- type of injunction. 51 [55] The legal principles for such an order are settled in the Federal Court decision of Subashini Rajasingam v Saravanan Thangathoray & Other Appeals [2008] 2 CLJ 1. The test being that ‘when a party is appealing, exercising his undoubted right of appeal the court ought to see that the appeal, if successful, is not nugatory’. [56] It cannot be denied that while the application for an interim injunction to restrain a call on the BG or to receive the benefits under the BG has already been dismissed, the Court always retains jurisdiction and power on the matter of stay or, in suitable cases, a grant of what is known as an Erinford-type of injunction. The plaintiff here has submitted that the appeal will be rendered nugatory because of the matters mentioned in paras 7 and 10 of the affidavit filed in support. At para 7, the plaintiff claims that the appeal will be rendered nugatory because the monies would be released by the third defendant to meet the call by the second defendant. As for para 10, the plaintiff claims that it will be prejudiced by the refusal to grant the injunction because damages will not be adequate. The plaintiff’s other banking facilities will also be affected if the BG is paid up. 52 [57] Although the consequence of a call may be in the terms and extent as described by the plaintiff, and it may well have been aware or taken to have been aware and agreed to such consequences when providing the BG in the first place, that does not necessarily mean that where the plaintiff has failed to secure an interlocutory injunction to stop such a call, an Erinford injunction cannot now be ordered; and that the plaintiff must simply wait till the appeal is resolved. The second defendant has argued that the appeal can still proceed but the second defendant must be allowed to proceed with the call and the third defendant to pay against the call. If the Plaintiff succeeds, the second defendant will just refund any or all monies received; and it is financially sound to make such refunds. [58] With respect, the Court disagrees. [59] The matters that lie at the heart of the interlocutory application and the substantive issues in the writ relate substantively to the same complaints; that there is unconscionability and conspiracy on the part of the first and second defendants in the manner already detailed above such that the second defendant’s reliance and call on the BG is unconscionable and must be restrained. The whole object of the 53 application and the writ is really the same and that is to restrain the call and/or the execution of such a call, if one has already been made; and that is what has happened here. That application has been refused. It is obvious that by the time the appeal against that refusal is heard, if there is no injunction ordered pending appeal, the call already made by the second defendant will have to be abided by and met by the third defendant. The focus of the injunction is on the call and the execution of the call; and not on the repayment. The appeal will certainly, in those circumstances be rendered academic and nugatory. [60] Furthermore, in the interests of justice and balancing the additional facts that the hearing of the substantive case has already been fixed for 12 August 2015; and that the BG is valid until 2017, there is greater urgency and reason to grant the Erinford-type injunction in the present facts. [61] The Court will therefore grant the orders sought in prayers (i) and (ii) till the hearing of the substantive case before the High Court or the appeal by the Court of Appeal on the plaintiff’s appeal in relation to the dismissal of encl 3, whichever is earlier; on the 54 undertaking as given by the plaintiff; with liberty to apply and with no order as to costs." [66] This Court does appreciate that a call on the BG and the execution of the call cannot be reversed in the event that the Plaintiff is successful on appeal and that an injunction is granted to restrain the execution of the call. By then the horse would have bolted so to speak and the BG would have been exhausted. The sum secured would have been paid out. From that perspective it can be said that the appeal if successful would be nugatory and that the Plaintiff's victory upon a successful appeal would be pyrrhic and purely academic save for damages for a wrongful call on the BG. [67] However this Court is not comfortable in confining the fact of nugatoriness to the act of call and the release of the sum secured that cannot be reversed. In a very real sense, all injunctions are about restraining a defendant from doing a particular act or compelling a defendant to do a particular act. The fact that an act that is sought to be restrained cannot be reversed if not restrained and that conversely an act that is mandated cannot be undone if not restrained, does not invariably mean that pending appeal, the status quo should be preserved merely because on appeal the injunction might be granted. Otherwise all 55 injunctions restraining an act from being done would suffer the same fate in that though it is dismissed on application, it has to be invariably granted on an Erinford application pending appeal, much to the chagrin of the successful party at first instance. [68] The fact that the act restrained or compelled cannot be undone once it is done is of course unarguable. What is more significant and substantial is really what is behind the act. In the case of a BG, there is nothing sentimental or sacred about it. It is the sum secured that is the substance of it. Hence the question of whether the appeal, if successful, would be nugatory, must be viewed holistically by asking if the sum released may be recovered. [69] Here the sum is ordered to be paid to D1's solicitors pending the outcome of the trial. Hence, there is little doubt that if the Plaintiff is successful after the trial to prove that the call on the BG had been wrongly made and that it was unconscionable in the circumstances of the case, the Plaintiff would in this case, be able to recover its money still and also be entitled to damages to be assessed. The same applies to an appeal from the above decision of this Court on the dismissal of the injunction application to restrain the call on the BG. 56 [70] The factor that if the appeal is successful it should not be nugatory, is only a factor that the Court in an Erinford injunction application, should take into consideration. There are other equitable factors that should bear upon a Court granting what is generally an equitable relief. If it can be shown that an applicant had acted inequitably or unconscionably then the Court would not grant the Erinford injunction. So too if the balance of convenience does not tilt in favour of the applicant or that damages would be an adequate remedy. [71] Megarry J in the Erinford Properties Ltd's case (supra) was careful to clarify as follows immediately after the proposition of law laid down for granting an Erinford injunction at p. 454: "There may, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)1, where, speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the 57 appeal, if successful, is not nugatory’. That was the principle which Pennycuick J applied in the Orion case2; and although the cases had not then been cited to me, it was on that principle, and not because I felt any real doubts about my judgment on the motion, that I granted counsel for the plaintiffs the limited injunction pending appeal that he sought. This is not a case in which damages seem to me to be a suitable alternative." (emphasis added) [72] In Cocoa Processors Sdn Bhd v United Malayan Banking Corp. Bhd. & Ors. [1989] 1 CLJ (Rep) p 436 the Plaintiff owed the 1st and 2nd Defendants quite a substantial sum of money secured by a debenture. Upon default receivers and managers were appointed over the properties and assets of the Plaintiff. The Plaintiff claimed for damages for wrongful appointment of the receivers and managers. The Plaintiff’s application for an injunction to restrain the Defendants from disposing, selling and dealing with its assets pending trial of the action was dismissed. The Court held that there was no serious issue to be tried. Pending appeal to the Supreme Court then, the Plaintiff applied for an Erinford injunction to preserve the status quo. In refusing the Erinford application, his Lordship Mohamed Dzaiddin J (as the former CJ then was) opined as follows at p 439: 58 “ ... I am of the view that whether or not the plaintiff succeeds in the appeal and in the main action will not be affected by its failure to obtain this further interim injunction. It must be remembered that the plaintiff’s claim against the defendants is for damages for wrongful appointment of receivers and managers. The 1st and 2nd defendants being a commercial and merchant bank respectively will no doubt satisfy any money judgment ordered by the Court. Therefore, responding to Mr. Bala’s fear and anxiety on behalf of the plaintiff, I must say quite confidently that there is no likelihood of a successful appeal against my decision being rendered nugatory. Secondly, a more serious issue to be considered here is the balance of convenience. Based on the facts and circumstances of the present case, I find the balance of convenience lay in favour of the injunction pending appeal being refused. I accept the submission of Miss Solomon that the assets of the plaintiff company had depreciated and the longer it remains in its present position, the greater the hardship being inflicted on the defendants. Further, in the event the plaintiff’s claim being dismissed, the assets having been depreciated quite considerably, the defendants may not be able to reap the fruits of their success under the debentures. On the other 59 hand, should the plaintiff succeed in its claim ultimately, for damages, the defendants will have no difficulty in settling the judgment. Lastly, I agree with Tunku Alina that in the present case damages seem to be a suitable and adequate remedy. The plaintiff would be adequately compensated in damages for the temporary damage between now and the date when its appeal is heard if my decision is reversed by the Supreme Court." (emphasis added) [73] As is evident above, the issue of nugatoriness was considered from the broader perspective of whether the banks as Defendants could satisfy any judgment that may be granted in the Plaintiff's favour and not so much that the Plaintiff's assets having been sold, cannot be reverted back to the Plaintiff. [74] Likewise in Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd (No. 2) [2002] 5 MLJ 662, the Plaintiff had failed in its application for an injunction compelling the Defendant to surrender vacant possession of the Defendant's land to the Plaintiff and to restrain the Defendant from interfering and obstructing the Plaintiff in carrying out its obligations under the "Oil Palm Operation and Maintenance Contract". The main reliefs in the writ action was a declaration that the Defendant had wrongfully 60 repudiated the said contract for no reasonable cause and damages to be assessed and for accounts inquiry into the fruits harvested. In dismissing the Plaintiff's application for an Erinford injunction application, his Lordship Ramly Ali J (now FCJ) set out his reasoning as follows at p 174: "In order to assist me in exercising my discretion on this matter, it is pertinent to see that there would be no impediment to the plaintiff enforcing any judgment in its favour should the plaintiff succeed in its intended appeal as well as the main writ. Whether a successful appeal by the plaintiff against my earlier decision being rendered nugatory or not, we have to go back to the plaintiff’s claim against the defendant in its writ and statement of claim. I have scrutinised all the prayers in the plaintiff’s statement of claim (as listed above) and satisfied that whether or not the plaintiff succeeds in the appeal and in the main action will not be effected (sic) by its failure to obtain the present Erinford injunction. There would be no impediment to the plaintiff enforcing any judgment in its favour should it succeed in its appeal and ultimately in its writ. There is no evidence to show that the defendant, would be in no position financially, to honour the judgment obtained by the plaintiff. Therefore, I must say quite confidently that there is no likelihood 61 of a successful appeal against my decision being rendered nugatory." (emphasis added) [75] Whilst this Court is not so convinced that the appeal if successful would be nugatory for the reason that the sum allowed to be released pursuant to the call on the BG has to be retained by D1's solicitors, this Court would proceed to consider where the relative convenience and hardship or prejudice would lie. It cannot be gainsaid that the call having been made before the expiry of the BG, the monies as may be determined by Court to be released, will be released either now to D1's solicitors or to D1 after the trial of the suit. In that sense, it is only a matter of time for D1 to receive the money, as may be held by Court, that it is rightly entitled. It is only a matter of when it will receive the money secured if it is entitled to receive it. Any damage suffered can be attended to now by making an order as to payment of interest for the time when the money is still held by the Bank D2. There is also the retention sum of 10% of the order value amounting to RM858,476.48 which would only be released after the Plaintiff has furnished a bank guarantee for the value of the last 10% of the order value which is to be valid up to 30 April 2018. The project has been completed and what is required is the finalization of the accounts. D1 in its call on D2 to pay had given the Bank instruction to make direct payment to 62 its branch in Pune, India. There is a danger that cannot be ignored altogether that upon finalization of accounts all surplus money might be remitted to D1's parent company in India. [76] However with respect to the Plaintiff, its financial position would have been altered significantly in that once the money is released, it would have to furnish the relevant security to the Bank for currently, the security is in the form of a corporate guarantee from its parent company. It would even have to come up with the full sum as may be required by the Bank. The hardship and prejudice to the Plaintiff cannot be dismissed as inconsequential or that it should have known about this when it received the Advanced Payment and furnished the BG. The reality of the situation is that the change in the Plaintiff's financial standing is no small matter whereas for D1, the situation cannot be worse or better save that there is the interest element to be attended to if payment is not made now but later. Both sides have not proceeded with any arbitration; the Plaintiff on the sum of RM4,632,155.00 which it said is due to it from D2 for Invoice 17,18 and 1A/W and D1 on the sum of RM8.45 million being the extra costs incurred in getting the subcontractors to complete the Work Order. The Plaintiff further had acknowledged that a sum of RM3,757,524.53 is owing to D1 63 from the balance of the Advance Payment of RM1,591,523.52 and the 2 Payments made in Advance to it of RM332,983.59 and RM1,833,017.42. [77] Weighing the respective factors in the scale of balance of convenience and seeing that the trial is just round the corner in the first week of June, which is hardly 3 months away, the Court would be inclined to maintain the status quo ante and to grant the Erinford injunction subject to terms. The Erinford injunction would be until the disposal of the appeal or the disposal of the trial of this case whichever is earlier. [78] The Plaintiff shall pay interest from 11 November 2015 (the date of call on the BG) to the date of disposal of trial or of the appeal whichever is earlier at the rate of 5% per annum to D1’s solicitors and the first payment, calculated until the 31 March 2016, shall be paid to D1’s solicitors as stakeholders by 31 March 2016 and the balance shall be on a monthly basis. Costs shall be costs in the cause. Dated: 21 March 2016 - signed - Y.A. TUAN LEE SWEE SENG Judge High Court Kuala Lumpur 64 For the Plaintiff/Applicant: John Skelchy, Vishal Kumar and Hilwa Bustam (Messrs James Monteiro) For the 1st Defendant/Respondent: A S Gill (Messrs A.S. Gill & Salina) For the 2nd Defendant/Respondent: Nabila Kamarudin (Messrs Christopher & Lee Ong) Dates of Decisions: 24 February 2016 (Enc 11) and 16 March 2016 (Enc 34)

Tika 2.6.0

12AC-17-12/2015

PLAINTIF MKRS Management Sdn Bhd PEMOHON Klass Corporation (M) Sdn Bhd DEFENDAN Klass Corporation (M) Sdn Bhd RESPONDEN MKRS Management Sdn Bhd

29/02/2016

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=95e663b0-4149-4cf7-a10d-99253d431f2b&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) RAYUAN SIVIL NO: 12AC-17-12/2015 BETWEEN KLASS CORPORATION (M) SDN BHD ... APPELLANT/DEFENDANT (NO. SYARIKAT: 455384-T) AND MKRS MANAGEMENT SDN BHD … RESPONDENT/PLAINTIFF (NO. SYARIKAT: 641712-D) Dalam Perkara DALAM MAHKAMAH SESYEN DI KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN NO. B52C-6-04/2015 ANTARA MKRS MANAGEMENT SDN BHD ... PLAINTIF (No. Syarikat : 641712-D) DAN KLASS CORPORATION (M) SDN BHD ... DEFENDAN (No. Syarikat : 455384-T) 2 THE JUDGMENT OF YA TUAN LEE SWEE SENG [1] The plaintiff had sued the defendant for the balance sum of RM715,381.79 being charges due and owing to it for the supply of labour, construction and letting of erected tabular scaffolding to the defendant. The suit was filed in the Sessions Court in April 2015. [2] The basis of this claim arises from the terms and conditions set out in a quotation No. MKRS/016/14/kcsb/quo1/rev1 dated 10 June 2014 (“Quotation” marked as Exhibit P-1 at trial) which was duly accepted by the defendant vide its Purchase Order No. 0567 dated 11 June 2014 (“Purchase Order” marked as Exhibit P-2 at trial). These documents are collectively marked as Exhibit “KS-1” and “KS-2” to the plaintiff’s affidavit respectively. (See pg. 103-105 and pg. 107 of the Appeal Record respectively). [3] Subsequent thereto, the plaintiff supplied workers and installed scaffolding and charged rent for the installed scaffolding. After that the plaintiff issued its invoices which were supported by contemporaneous 3 documentation which showed the work was done at the defendant’s request and as approved by the defendant. Such documents included the ‘Scaffolding Completion Form’, ‘Manpower Form’ and or ‘delivery order’ (collectively referred to as “Site Inspection Forms” or “SI Forms”). A sampling of the SI Forms are in Exhibit “KS-3” to the plaintiff’s affidavit and marked as Exhibit P12 and P13 at trial. (See pg. 109-132 Appeal Record). [4] The defence filed was that the billing had not captured the correct quantity and measurement of scaffolding supplied and that the calculation of the charges is not in accordance with the “Purchase Order” and further that there had been tampering of the relevant SI Forms countersigned by the defendant confirming the work done. [5] Thereafter no less than 6 case management dates were fixed for the parties to comply with the directions of the Sessions Court Judge ("SCJ") for trial. Trial was finally fixed on 23 and 27 November 2015 and further on 1, 4, 14 - 16 December 2015. The plaintiff therefore prepared for trial focusing on proving that there had been no dispute on quantity and measurement with respect to height and that the defendant's agents having 4 signed the relevant SI Forms confirming the extent of work done, they are estopped from contending otherwise. [6] On the first day of trial, PW1 completed his evidence-in-chief. It was then that the defendant served on the plaintiff an unsealed application to amend the defence. The trial had to be adjourned to enable the defendant's application for amendment to be heard. On 4 December 2015 the Court dismissed the defendant's application. Prayer [7] The new paragraphs sought to amend the Defence filed to introduce the element of set-off as well as to plead that the billing had not been in accordance with "the construction industry practice generally and the supply of tabular scaffolding specifically." [8] The defendant is now appealing against that decision dismissing the defendant's application to amend filed at the 11th hour and served on the plaintiff after trial had started. As provided for under O 55 r 2 Rules of Court 5 2012 ("ROC 2012"), this appeal to the High Court from the decision of Sessions Court is by way of re-hearing. Principles [9] One cannot deal with the issue of amendment of pleadings without referring to the Federal Court's decision in Yamaha Motor Co. Ltd v Yamaha (M) Sdn Bhd & Ors [1983] 1 CLJ 191; [1983] CLJ (Rep) 428 at p. 428-429 and to the dicta of his Lordship Mohd Azmi FJ: “The general principle is that the Court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be determined whether injustice would or would not result, (1) whether the application is bona fide; (2) whether prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another character and inconsistent character. (See Mallal’s Supreme Court Practice p.342). If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, 6 provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim.” (emphasis added) [10] The test in Yamaha Motor's case (supra) has been modified by the recent Federal Court case in Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1. The principles that may be gleaned from the Hong Leong Finance's case (supra) are as summarised in the headnotes of the report as follows: “(1) The principles in Yamaha Motor’s case were laid down in respect of an application to amend that was made at an early stage of the proceedings in particular before the trial commences. The Court of Appeal fell into an error of law when it applied the principles in Yamaha Motor without appreciating that those principles were insufficient to deal with an application to amend, which introduced two new defences on the eve of a trial. (paras 16 & 29). (2) Yamaha Motor was decided under the old Rules of the High Court 1980. The civil procedure has since then changed with he 7 introduction of the pre-trial case management. Under the new case management regime the court recognises that a different approach needs to be taken to prevent delay in the progress of a case to trial. The management of cases by the courts prior to the trial is intended to ensure ‘just, expeditious and economical disposal’ of an action. (paras 18 & 26). (3) When an application to amend a pleading is made at a very late stage, the principles in Yamaha Motor ought not to be the sole consideration. This was because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice. There had been five case managements since 2011 and there was no indication at all that an amendment application was contemplated by the defendant. (paras 18 & 27). (4) The Court of Appeal failed to appreciate that Low bears the burden of producing material and cogent reasons to explain why the change was sought so late and was not sought earlier. In the defendant’s affidavit-in-support, all that was stated was that he had only realised that important issues, namely the first and second 8 proposed amendments were not pleaded when he was preparing for trial. Such an explanation could not be accepted. (para 29). (5) The defendant’s affidavit-in-support failed to adduce an explanation for the delay in filing the said application. The Court of Appeal erred in holding that the plaintiff should have filed an affidavit to oppose the application to amend since the defendant’s affidavit in support contained nothing more than a bare assertion. A bare assertion carries no evidential value and hence, here was nothing to reply. Low’s affidavit also did not discharge the heavy onus imposed on the amending party as Low did not disclose any material and cogent reasons to explain the inordinate delay. (para 30)." [11] There is a palpable and indeed purposeful paradigm shift under the ROC 2012 under the new regime of proactive case management by the Courts such that a late application to amend especially on the eve of a trial or after a trial has commenced would not be viewed favourably by the Courts. The Courts in the light of the Hong Leong Finance's case (supra) are enjoined to factor in delay caused by the party's late application to amend as part of the overall considerations to be taken into account in determining where the justice of the case lies with respect to such an 9 application in the context of a just, expeditious and economical disposal of a case. [12] The various considerations involved are now discussed below. Whether the defendant's application to amend its Defence after trial has proceeded is bona fide and that the delay is reasonable [13] O 20 r 5 ROC 2012 provides that the Court may at any stage of the proceedings allow any party to amend his pleading on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct. [14] Whilst an application to amend may be made at any stage of the proceedings, the discretion lies with the Court taking into consideration a host of factors in deciding whether or not the amendments should be allowed. The Court of Appeal in Raphael Pura v. Insas Berhad & Anor [2001] 1 MLJ 49 at page 55 had this to say on O. 20 r 5: 10 “It should be noted that an application for amendment of a writ or pleading is not as a matter of right of a party but is left to the judicial discretion of the court depending on the circumstances of each case.” [15] In Kaplands Sdn Bhd v Lee Chin Cheng Dengkil Oil Palm Plantations Sdn Bhd [2000] 4 CLJ 281 the High Court held at page 288 as follows: “.... it is the law that where there has been a long delay in applying for leave to amend a pleading, there must be an affidavit to explain the delay; except in cases where the amendment is plainly and obviously trivial in nature or where the opposite party does not oppose the application. Only if there is an explanation by way of an affidavit will the court be in a position to assess and decide whether in the circumstances leave to amend ought to be granted or not.....” [16] It is axiomatic that the longer the delay the more cogent and convincing the reasons must be explaining the cause of the delay. It is only too evident that an application to amend one's pleadings either just before trial or after trial has started, has a disruptive effect on the trial, often derailing and delaying it further. It is dissipating and diffusing of time and 11 energy that should be directed and devoted towards the diligent disposal of the dispute. Precisely because of this deleterious effect that a late application for amendment has on a trial, it is often associated with a lack of good faith unless the delay is excusable as in having been sufficiently explained. [17] Any amendment application has to be made at the earliest opportunity. Here, it has not been and more than that, it has been made at the eleventh hour on the first day of trial after the plaintiff's first witness had given his evidence in examination-in-chief. Whilst deadlines may be just datelines especially if parties agree to extend it by mutual consent, it has dire consequences when the delay is devoid of a decent explanation. The law is not so harsh as to punish a mere innocuous inadvertence but it is not sympathetic to a shoddy preparation that stumbles across a defence or particulars of it, previously not known to the defendant itself as declared in this case. The timeline that leads finally to a trial taking off is a reasonably good test as to whether a party has been guilty of deliberate or dilatorius delay. 12 [18] Here the Statement of Claim was served on the defendant on 28 April 2015. Since that date, almost 7 months had lapsed before trial commenced. In between, there were 6 case management dates. Since the filing of the Defence, there were 5 case management dates. [19] The amendment was made on the first day of trial after trial had commenced on 23 November 2015, not to mention that the suit had previously been set down for trial to commence on 19 and 20 October 2015. It was adjourned as learned counsel for the defendant was unwell. The defendant in its affidavit-in-support has failed to give a reasonable explanation for the delay in making this amendment application. That is fatal and the application would fall flat. It is woefully inadequate and wanting for the defendant to explain that it only came across the defence of billing not according to industry practice when the so-called discovery was made that plaintiff had billed according to volume in meter cube. [20] Gone are the days when the file moves according to the timetable of the parties. Under the revamped ROC 2012, the court would proactively managed the files so as to get them ready for trial and to dispose of them, 13 as far as possible, within 9 months of filing. This has been proved possible through the cooperation of counsel not to ask for any adjournments save for the most extenuating of human circumstances. No longer may a lawyer double-park or triple-park cases for trial in his diary for he can no longer use one case to postpone another! [21] The case of K Rajashekar A/L Kanapathy & Ors v Palm Court Condominium & Ors [2014] 9 MLJ 297 captures the current attitude of the Court towards a late amendment application as follows: “(1) The court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it. The later an application is made, the stronger would be the grounds required to justify it. The delay must be explained and justified. A failure to explain the delay is fatal especially where the amendments sought are substantial in nature. Last minute applications are to be discouraged as they would inevitably entail an adjournment, and an award of costs may not adequately compensate someone who is desirous of concluding a piece of litigation which has been hanging over his head (see para 27). 14 [22] A late application to amend filed with no reasonable explanation for the delay caused would invariably be frowned upon and would often prove to be fatal. In Lembaga Pelabuhan Johor v The Pacific Bank Bhd [1998] 5 MLJ 323 the Court held thus at page 323 at the headnotes: “The proposed amendments were filed at a very late stage. It was a protracted, prolonged, and inexcusable delay. The delay was precisely nine years four months and twenty days. The allegations that the proposed amendments were useless, lacked bona fides and intended to delay the plaintiff’s claim met with no response whatsoever by the defendant in the form of an affidavit. The defendant knew that there was this prolonged delay, yet they failed to give an explanation by way of an affidavit evidence.” [23] In Everise Hectares Sdn Bhd v. Citibank Bhd [2011] 2 CLJ 25 the Court of Appeal held at page 26 para 3 of the headnotes: “(3) The amendment application was not made bona fide. The delay of seven months 27 days before the filing of the amendment application showed that there was no due diligence on the appellant’s part. (paras 30 & 31) (emphasis added) 15 [24] A delay in an application to amend one's pleading without a cogent reason for the delay would invariably result in the dismissal of the application for amendment. Some cases enunciating the above principles are as follows: Kuala Lumpur City Securities Sdn Bhd v. Cheong Chai Hoo [2004] MLJU 170 see pg. 3/3 U-Meng Holding Sdn Bhd v. Tan Sri Dato Ibrahim Mohamed & Anor [2010] 9 CLJ 411 [25] In Jupiter Securities Sdn Bhd v. Wan Yaakub bin Abd Rahman [2002] 3 MLJ 264 His Lordship Faiza Ramby Chik, in refusing an application to amend at the eleventh hour, held thus at the headnotes: “(2) One of the most important criteria to amend a pleading is that the said amendment must be bona fide. The defendant’s application was not bona fide because: (i) the defendant failed to disclose the purported fraud in his original statement of defence although the facts were known to him then; (ii) the defendant’s application to amend was very late and was a ‘tactical 16 manoeuvre’ to delay proceedings of the summary judgment application; (iii) here was no reasonable excuse for the defendant to delay the filing of his application to amend the statement of defence till two days before the hearing of the summary judgment application if the alleged facts were known to him much earlier; and (iv) the defendant’s application changed the basis of the defendant’s defence to a stand inconsistent with the original statement of defence (see pp 269G, 270A-C, H-217A). (3) If the defendant’s explanation was accepted, it would mean that the defendant was at liberty to file a statement of defence that did not disclose all the facts so that the proceedings could be delayed with an intention to amend the same later for his own personal motive. Further, there was no reasonable ground for the defendant to wait until the last moment before the hearing of the summary judgment application to amend although more than five months had lapsed since the application for summary judgment was served upon him (see pp 271H-272A). (emphasis added) 17 [26] The defendant had based its application on the ground that it had only just found out that the plaintiff's billing for the scaffolding installed was based on cubic meter ("m3") which was not in accordance, so it claims, with industry practice in Malaysia and that the charges are excessive. [27] The defendant further averred in its affidavit in support of the amendment application that it had discovered this information a few days before the commencement of the trial from a witness to be called for the Defence, one Mr Gunalan a/l Thanimalai. However the "Final Revised Quotation" from the plaintiff to the defendant dated 10 June 2014 clearly showed the quotation in cubic meter at page 103 of the Appeal Record ("AR"). Likewise the defendant's Purchase Order dated 11 June 2014 to the plaintiff also referred to the measurement of the scaffolding in terms of cubic meter. The plaintiff's invoices that had been in the possession of the defendant also showed cubic meter and some payments had already been made based on cubic meter. [28] The last case management was on 13 July 2015 and trial was initially fixed on 19 - 20 October 2015 and which taken off because defendant's counsel was taken ill. For the defendant to wait almost 5 months and then 18 to say that they had stumbled upon an important discovery of something amiss in the method of billing is stretching credibility to its limits. The late application with no reasonable explanation smacks of a lack of bona fides in making the application. [29] In Raphael Pura v. Insas Bhd & Anor [2000] 4 CLJ 830 the Court of Appeal underscored the importance of bona fides in applications for the amendment of defence in this wise: “As we are dealing with the application for the amendment of defence, question (1) [whether the application is bona fide] above would be relevant for consideration. This court similarly had considered O 20 r 5 in Taisho Co. Sdn Bhd v. Pan Global Equities Bhd [1999] 1 CLJ 703. In Taisho’s case, the amendments related to the statement of claim. Be that as it may, the question posed in Yamaha would still be equally applicable to the present appeal before us. If the application, on the facts before the learned judge, showed lack of bona fide then he fails in his application altogether.” (emphasis added) 19 [30] In dismissing a similar late application for amendment in the Hong Leong Finance Bhd's case (supra) the Federal Court observed as follows: [25] The Courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay. They seem to have considered this as an additional factor to the Yamaha Motor's rules. The need to show 'some material and advance some cogent reasons' was applied in Taisho Co Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1 MLJ 359; [1999] 1 CLJ 703, Haidar JCA (as he then was) held: The learned judge intimated that the application was made after the appellant failed on appeal to this court to affirm the judgment entered by it initially. Further, he said that the appellant had knowledge of the 'acknowledgement' as late as April 1987, that is, four years before the action was filed. Furthermore, the application was filed four years after the commencement of this action. We would add further that no reasons were given for the delay in filing the application when the point of admission was obviously available even before 20 filing the proceedings. As rightly opined by the learned JC in Multi-Pak Singapore Pte Ltd and correctly followed by the learned judge, the appellant did not place some material and advance some cogent reasons to impel the court to lean on its side. We would further add that the application borders on lack of bona fides, one of the basic question set out in Yamaha Motor Co Ltd. (emphasis added.) [31] The requirement to advance some material and cogent reasons was likewise followed in the subsequent decisions in the cases of Raphael Pura v Insas Bhd & Anor [2001] 1 MLJ 49; [2000] 4 CLJ 830 and Everise Hectares Sdn Bhd v Citibank Berhad [2010] MLJU 1379 ; [2011] 2 CLJ 25: [26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure 'just, expeditious and economical disposal' of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely 21 disposal of cases and the limitation of cost are now the primary considerations under the present regime. [27] In our instant case, there had been five case managements since 2011 and there was no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable." (emphasis added) [32] Based on this ground of undue delay which has not been reasonably explained, the defendant's late application after trial had commenced should stand dismissed. Whether the late application to amend by the defendant would prejudice the plaintiff [33] The late proposed amendments that made reference to what is industry practice would entail the calling of expert witness to testify. The need to call an expert witness should have been disclosed to th SCJ at the 22 stage of case management for there specific directions that should be given under the Rules of Court 2012 where expert evidence is envisaged, all with a view to securing the just, expeditious and economical disposal of the proceedings. [34] Under O 34 r 2(2)(p), (q) and (r), with respect to the directions that a Judge may make on a Pre-Trial Case Management where expert witnesses may be called, it is provided as follows: "(2) At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including- ... (p) whether an order should be made limiting the number of expert witnesses; 23 (q) whether the evidence-in-chief of each expert witness should be set out in a single witness statement; (r) whether any direction should be given for a discussion between the experts prior to the exchange of their affidavits exhibiting their reports for the purpose of requiring them to identify the issues in the proceedings and where possible, reach agreement on an issue, and if such a direction should be given, whether- (i) to specify the issues which the experts are to discuss; and (ii) to direct the experts to prepare a joint statement indicating the agreed issues, the issues not agreed and a summary of the reasons for any non-agreement;" (emphasis added) [35] O 40A ROC 2012 further amplify the specific directions that the Court may make when it is indicated to the Court that a party is calling an expert to testify on certain issues. It provides as follows: 24 "ORDER 40A: EXPERTS OF PARTIES 1. Limitation of expert evidence (O. 40A r. 1) (1) The Court may, at or before the trial of any action, by order limit the number of expert witnesses who may be called at the trial to such number as it may specify. (2) A reference to an "expert" in this Order is a reference to an expert who has been instructed to give or prepare evidence for the purpose of Court proceedings. 2. Expert's duty to the Court (O. 40A r. 2) (1) It is the duty of an expert to assist the Court on the matters within his expertise. (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid. 3. Requirements of expert's evidence (O. 40A r. 3) (1) Unless the Court otherwise directs, expert evidence to be given at the trial of any action, is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him 25 testifying that the report exhibited is his and that he accepts full responsibility for the report. (2) An expert's report shall- (a) give details of the expert's qualifications; (b) give details of any literature or other material which the expert witness has relied on in making the report; (c) contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given; (d) if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert's supervision; (e) where there is a range of opinion on the matters dealt with in the report- (i) summarise the range of opinion; and (ii) give reasons for his opinion; (f) contain a summary of the conclusions reached; 26 (g) contain a statement of belief of correctness of the expert's opinion; and (h) contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty. 4. Written questions to expert (O. 40A r. 4) (1) A party may with the leave of the Court put to an expert instructed by another party written questions about his report. (2) An application for leave to put questions to an expert about his report shall be made within fourteen days of service of the expert's affidavit exhibiting his report, or such longer period as the Court may allow. (3) The written questions under paragraph (1) shall be for the purpose only of clarification of the report. (4) An expert's answers to the written questions put to him under paragraph (1) shall be in writing and provided within such time as the Court may direct and shall be treated as part of the expert's report. 27 (5) Where a party has put a question to an expert instructed by another party in accordance with this rule and the expert does not answer the question or does not, in the opinion of the Court, answer the question adequately within the time provided, the Court may make such order as it thinks just, including all or any of the following: (a) that the party who instructed the expert may not rely on the evidence of that expert; (b) that the party who instructed the expert may not recover the costs of that expert from any other party; or (c) that the expert is to answer or provide a further and better answer to the question, as the case may be. 5. Discussions between experts (O. 40A r. 5) (1) The Court may, at any stage, direct a discussion between experts for the purpose of requiring them to- (a) identify the issues in the proceedings; and (b) where possible, reach agreement on an issue. (2) The Court may specify the issues which the experts shall discuss. 28 (3) The Court may direct that following a discussion between the experts, they shall prepare a statement for the Court showing- (a) the issues on which they agree; and (b) the issues on which they disagree and a summary of their reasons for disagreeing. (4) The contents of the discussions between the experts shall not be referred to at the trial unless the parties agree. (5) Where the experts reach agreement on an issue during their discussions, the agreement shall not bind the parties, unless the parties expressly agree to be bound by the agreement." (emphasis added) [36] The Court has been deprived of the opportunity to make the above specific directions with respect to expert evidence and the delay caused can only prejudice the plaintiff for it would set the trial back a few more months at a time when the plaintiff had already filed and served its witnesses' statements on the defendant. It would delay the trial further as the plaintiff would have to get their expert witness, an expert report would have to be prepared and the plaintiff's first witness, who had given 29 evidence-in-chief, would have to be recalled as his Witness Statement would in all probability have to be revamped. [37] No longer may a Court simply dismiss the delay caused arising out of such a late amendment as merely a prejudice that can always be compensated by costs. Costs alone cannot make prejudice caused more prosaic or palatable. It cannot always atone for or assuage the deleterious delay that has resulted in the prejudice. [38] We must move away from the general default drive that any prejudice caused may be compensated by costs. The reformatted regime eschewing delay and encouraging efficiency must bring in its wake a new sense of value in rewarding timeous action and discouraging delay that disrupt the diligent disposal of disputes in the Courts. [39] I have no difficulty associating with the sentiments expressed in Anthony Wee Soon Kim v. UBS AG (No 2) [2003] 2 SLR 554 where in dismissing the plaintiff’s application the court was sagacious in stressing as follows: 30 “Litigants must be aware that with increased emphasis on the efficient conduct and disposal of cases, they must be responsible in the way they conduct their cases. The fact that a litigant is able to pay costs and a proposed amendment will not cause prejudice or irreparable prejudice to its adversary will not ensure that an application to amend will be granted.” [40] In a world where money is often perceived as having the power to cure all ills, the reminder in Ketteman and Others v. Hansel Properties Ltd [1988] 1 All ER 38 where at p. 62 where it was said that justice cannot always be measured in terms of money, is both timely and timeless. The Federal Court in Hong Leong Finance case (supra) referred to the development in UK law on this misconception that an order for costs would remove all prejudice caused as follows: "[19] The development of the law relating to civil procedure and in particular with regard to amendment application on pleadings is not only seen in Malaysia but in other jurisdictions as well. In the United Kingdom as far back as 1988, the House of Lords in the decision of Ketteman and Others v Hansel Properties Ltd [1988] 1 All ER 38 had already taken into consideration the strain of litigation on parties 31 when new issues are introduced and an amendment application is made late. The statement of a general principle against delayed amendment was well set out by Lord Griffiths in that case at p 62 as follows: Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore, to allow an amendment before a trial begin, it is quite different from allowing it at the end of the trial to give an apparently 32 unsuccessful defendant an opportunity to renew the fight on an entirely different defence. Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings. (emphasis added.) The principle in Ketteman has been considered on numerous occasions by the Malaysian Courts (see the case of Skrine & Co v MBf Capital Bhd & Anor [1998] 3 MLJ 649 and Bacom Enterprises Sdn Bhd v Jong Chuk & Ors [1998] 2 MLJ 301)." 33 [41] The defendant's late application for amendment which, if allowed, would cause the trial to be further delayed, is a prejudice to the plaintiff which cannot be compensated by costs. Whether the proposed amendment changes the character of the defence [42] The defendant had proposed to amend its Defence by adding substantially 5 paragraphs to its Defence from paragraphs 48 - 52 to include the Defence of Set-Off. However though couched as a set-off, it is in essence a camouflage for a counter-claim. As pointed out by learned counsel for the plaintiff, a perusal of the Proposed Amended Defence discloses that the defendant's basis for this proposed set-off is that: (i) the defendant had “overpaid” the plaintiff a sum of RM71,943.30 on some of the invoices the defendant had paid (see para 49 of the Proposed Amended Defence); and (ii) the unpaid sum of RM178,084.50 “billed in excess” by the Plaintiff and as yet unpaid ought to be set-off against the plaintiff’s total claims (see para 51 of the Proposed Amended Defence) 34 [43] I agree with the plaintiff's submission that the defendant’s plea is not a real set-off: (i) The “overpaid” sum of RM71,943.30 is not a sum to be set-off from the Plaintiff’s claim. It is, if at all, a counterclaim for moneys overpaid through mistake (which is not admitted). (ii) the sum of unpaid RM178,084.50 “excess” is not a real set-off. It is the sum the defendant ought to try to establish is not owing to the plaintiff at trial and accordingly reduce the plaintiff’s claim. [44] The whole tenor and thrust of the Defence is three-fold: 1. that there has been wrong calculations in that there is a vast difference between the plaintiff's claims made and the drawings and report of the defendant's site personnel; 2. that there has been overcharging bases on the Works Verification Forms which were tampered by the plaintiff; 3. that there were wrong measurements where height is concerned. A perusal of paragraph 45 of the original Defence, at “Kesimpulan Pembelaan” is instructive. It pleads thus: 35 “45. Defendan bersedia membayar sebarang tuntutan daripada Plaintif yang berasaskan terma-terma dan butir-butir dalam surat sebut harga dan yang mengandungi kuantiti dan ukuran yang betul dan benar.” i) Jumlah tuntutan Plaintif berasaskan kepada invois-invois yang dikeluarkan oleh Plaintif kepada Defendan berasaskan cara pengiraan yang tidak menurut surat sebut harga yang menjadi asas Perjanjian Plaintif dan Defendan; maka jumlah tuntutan RM715,381.79 oleh Plaintif terhadap Defendan tidak mempunyai merit; ii) Jumlah tuntutan Plaintif terhadap Defendan berasaskan surat pengesahan rekod kerja atau “S.I.” yang cacat dari segi kandungannya serta mengandungi butir-butir yang salah: iii) ... iv) Defendan bersedia dan mampu daripada awal lagi dan masih bersedia untuk membayar tuntutan Plaintif yang disokong oleh butir-butir kerja yang benar dan mengikut terma- terma yang dipersetujui dalam kontrak antara Plaintif dan Defendan.” (emphasis added) 36 [45] In none of the contemporaneous documents exhibited was there any reference to a set-off. Neither was there any reference to the plaintiff's invoices being defective because it "...includes calculation of empty space..." or "...not in accordance with industry practice," as alleged in paragraph 48 - 49 of the Proposed Amended Defence." There is merit in the plaintiff's submission that the new allegations would go against the grain of the defendant's own contemporaneous documents and pleaded Defence. Indeed the so-called "set-off" is more of a tactical manouver to disguise what is in reality a "counterclaim" so as to avoid the obvious pitfall of making an application for amendment to add a counterclaim after trial has proceeded. It is tantamount to shifting the goalpost after trial has started and the "match" as it were, has begun. [46] There is considerable force in the plaintiff's argument that it is improbable that the defendant, being involved in a multimillion dollar project and employing professionals, did not know of this "industry standard or practice" issue at the outset of the suit. 37 Pronouncement [47] The Sessions Court Judge had exercise her discretion correctly and had dismissed the defendant's late application for amendment of its Defence based on settled and sound principles governing applications for amendments. For all the factors considered above, I would affirm the decision of the Sessions Court and dismiss the appeal with costs of RM8,000.00 to be paid by the defendant to the plaintiff, which costs is to be paid by the end of the trial in the Sessions Court. [48] The matter should proceed with all due diligence on the next trial date in the Sessions Court on 20 January 2016 and on subsequent dates fixed Dated: 29 February 2016 - signed - Y.A. TUAN LEE SWEE SENG Judge High Court Kuala Lumpur 38 For the Appellant/Defendant: G Nanda Goban and Siva Shankar (Messrs Goban & Company) For the Respondent/Plaintiff: G.Rajasingam bersama M. Rajkumar (Messrs Nora Hayati Raj) Date of Decision: 18 January 2016

Tika 2.6.0

26-9-2005

PEMOHON LIM HUA RESPONDEN 1. CHEMFERT SDN BHD 2. PHUAR KONG SENG 3. NG SOOK WAH 4. BERNARD TAN GHIM HUAT

19/02/2016

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 26-9-2005 Lim Hua Lwn Chemfert Sdn Bhd dan 3 lagi 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA PETITION NO: 26-9-2005 In the matter of Section 181 Company Act 1965 And In the matter of Chemfert Sdn. Bhd. (Company No: 157767-P) BETWEEN LIM HUA ... PETITIONER AND 1. CHEMFERT SDN. BHD. 2. PHUAR KONG SENG 3. NG SOOK WAH 4. BERNARD TAN GHIM HUAT … RESPONDENTS   GROUNDS OFJUDGMENT {Assessment of Bill of Costs (Receivers & Managers)} 2    A. BACKGROUND FACTS [1] The present Appeal is simply an appeal against the assessment of Bill of Costs by the learned Senior Assistant Registrar (“SAR”) by the Appellant-Petitioner (“Petitioner”) in which the Petitioner (“Lim Hua”) should pay the Receivers and Managers of the 1st Respondent (“Onn Kien Hoe and Mok Yuen Lok”). [2] It is important to note that the Petitioner initially has not challenged at all to the Bill of Costs. Following the absence of challenge to the Notis Penetapan oleh Pendaftar and Bill of Costs which were filed on 21.2.2013, the learned Senior Assistant Registrar Puan Sara Zuriati has allowed and ordered payment of the totality of Bill of Costs considering that the substituted service of the Bill of Costs has been perfected. Again, at this juncture, the Petitioner has not challenged the Bill of Costs at all. [3] Even upon the previous Receivers and Managers of the 1st Respondent’s initiation of a bankruptcy action against the Appellant-Petitioner (filed on 22.11.2013), the Petitioner has for time and time again, failed to challenge the Bill of Costs and only at the final hour, a day before the Hearing of the Creditor’s petition, 3    the Petitioner served a Notice of Application to set aside the bankruptcy action as well as the Bill of Costs. [4] Preliminarily, it is already telling that the Petitioner has no interest at all to adhere to pay the Bill of Costs and was merely putting a front to eschew from and delay his inevitable liability to pay the Bill of Costs. The Bill of Costs and the Notis Penetapan by the learned Registrar has been filed as early as the 1st quarter of the year 2013 and any challenge raised by the Petitioner was only made almost 10 months after the filing. And to make matters worse, the challenge was only raised after the previous Receivers and Managers of the 1st Respondent initiated and almost completed a bankruptcy action against the Petitioner. [5] During the hearing of the Petitioner’s Application to set aside the Bill of Costs, the Petitioner has agreed to withdraw its application with condition that the Bill of Costs is assessed again before the learned SAR with the presence of the Petitioner and/or his representative. The learned SAR has assessed the Bill of Costs and allowed a majority of the Bill of Costs albeit with slight deductions. The Petitioner appeals against this decision by the 4    Senior Assistant Registrar, which shall be determined in the present case. [6] Now, having the benefit of the Parties’ written submissions and the learned SAR’s grounds of judgment, it is already clear to this Court that the learned SAR has assessed each part of the Bill of Costs properly and consistently with reference to the numerous Reports and Documents in Bundles 1 to 25, as well as the Internal Documents (“DIC”) before allowing the claim under the Bill of Costs. [7] It must be highlighted at this juncture that the Petitioner has only loosely referred to any specific document in Bundles 1 to 25 in attempting to challenge the particulars of the Bill of Costs. By and large the Petitioner’s appeal was hinged on speculations and loosely contended arguments which are either unsubstantiated or downright desperate. The Petitioner has totally eschewed from the task to address the documents filed into Court and merely focused his challenges on allegations of discrepancies between Reports and the Bill of Costs. At the core of assessment, it matters not if there were discrepancies between the Bill of Costs and any antecedent document. What matters is the particulars of the Bill of 5    Costs, and the substantiation vide cross-reference with evidential documents which were filed into the Court. And the Petitioner utterly failed to address these documents. The whole length of the Petitioner’s main submission and submission in reply is merely on the manner in which the Bill of Costs were prepared and discrepancies in which the learned SAR has already considered, with cross-reference with numerous documents (which were not addressed in any measure of specificity by the Petitioner) and has made the appropriate deductions to particulars in which did not have any corresponding proof. B. THE BILL OF COSTS WAS A PROPER BILL [8] The Petitioner contended that the Bill of Costs was improper in that the Bill of Costs allegedly is confusing and difficult to cross-refer with the numerous documents filed. However, this Court finds that the Bill of Costs is proper and it is more so the case that the Petitioner who is reluctant to properly read through the documents which were filed in Bundles 1 to 25 which were already referred to in the Bill of Costs. The Petitioner contends that the Bill of Costs is improper merely because the Bill of Costs does not explicitly and extensively spell out the exact pages of the documents which were 6    referred to in the Bundles. The learned SAR for the whole length of the trial has addressed each and every single item in the Bill of Costs and has cross-referred to all the Bundles 1-25 ceaselessly. The issue of an improper Bill of Costs never arose. It is clear that the Bill of Costs was proper and that cross-references between the Bill and the Bundles were possible. It would be incredulous that this Court should rule out that every Bill of Costs is improper merely because a single party finds difficulties in cross-referring the Bill of Costs and the corresponding documents in the Bundles, especially when during the whole trial, the SAR and the R&M has no trouble at all to make cross-reference. For example in Part C item 1 of the Bill of Costs, it is stated: “Ref:- (1) Statutory Documents File; (2) Audit working papers & audited accounts; (3) Investigation File 1 of 2 (4) Investigation File 2 of 2 (5) Eon Bank Matters; (6) BCBB Bank Matters (7) MBB Bank Matters (8) Misc Bank Matters 7    (9) Correspondence with Authorities and others file 2 of 2; and (10) Legal Matters S218” [9] The relevant documents have already been laid down in the Bill of Costs. There should have been no problem of cross-reference. More so when the learned SAR has no issues in making those cross-references with the R&M. The stipulation of Person(s) in Charge and the cumulative time- costs is properly assessed and proven [10] By and large, the majority of the Petitioner’s contention is on the fact that that the Bill of Costs does not indicate the person-in- charge and specific time-cost of all the particularised works done. Merely on this fact, the Petitioner contends that the Bill of Costs is doubtful as any measure of tracing or verification cannot be taken to scrutinize the particulars of works in the Bill of Costs. This contention was tirelessly repeated against all parts of the Bill of Costs from Part A to Part F. 8    [11] However, it must be noted that the Bill of Costs indeed include and indicate the person(s) in charge for the works done although the person(s) in charge is not indicated for each and every separate particular items of the Bill of Costs. What was indicated is the person(s) in charge for numerous listed works and the cumulative time-costs incurred for each person(s) in charge. [12] Merely on the above manner in which the Bill of Costs is prepared, the Petitioner argued that the Bill is improper in that there is a want of verification as to the exact person who performed the listed works and the exact amount of time taken for each and every single work. It was argued that with this form of Bill of Costs, the R&M can simply pluck the time-costs for every task out of thin air. [13] However, this contention does not hold water at all. Be that as it may that each particulars of work does not indicate the specific time-cost and person in charge, the Bill of Costs has already indicated the person(s) in charge in for the numerous works and the cumulative time costs taken for the numerous tasks listed. These cumulative time-costs and persons in charge then were put to further scrutiny and cross-reference to numerous documents and reports filed into the Court. The verification and assessment 9    was properly done not on the isolated reading of the Bill but on the cross-reference of the Bill with all other supporting documents referred to and filed into Court. [14] It was already mentioned who are the persons tasked to perform all of the itemised tasks. It would make no difference at all to indicate the person-in-charge for every task itemised. [15] Suffice that the Petitioner has never denied the performance of all the itemized conduct in the Bill by the person(s) in charge indicated in the Bill. There is no doubt regarding performance. And since there are not any doubts as to performance, the issue of the identities of the person in charge of each task are irrelevant. Rather than hinging on a speculation of fabricated particulars, it is more relevant for the Petitioner to address in specificity the documents which he intends to discredit regarding the proof or absence of proof of the works done by the Person(s) in charge and time-costs indicated in the Bill. This is exactly what the Petitioner has utterly failed to undertake. Instead the Petitioner fully hinges his challenges on bare assertions and speculations, and totally failed to address the numerous documentary proofs which were filed and referred to by the R&M. 10    [16] There is no necessity for this Court to follow the Petitioner’s supposition for the Bill of Costs to be the format as the Petitioner submitted. However, in submitting on the format’s issue, the counsel for Petitioner has failed or rather did not submit to this Court any law to corroborate his contention. [17] Furthermore, regarding the time costs, it is more relevant for the Petitioner to contend and prove that the cumulative hours put in for the tasks cannot be proven through discrediting the documentary evidence referred to by the R&M. In the present case, the Petitioner merely alleged that the hours were “plucked” out of thin air. However, the R&M has already referred to and the learned SAR has already cross-referred the relevant documents in the Bundles, to which the Petitioner has never specifically denied. [18] Even if the time to perform each and every task is included in the Bill of Costs, there is simply no method at all for the Petitioner to ‘trace’ and evaluate the ‘truthfulness’ of the time cost stipulated. Not all companies can or should afford to have such a comprehensive time-cost system that records all the time passed for each and every single task. Especially considering some of the tasks undertaken were performed outside of the office. The 11    Petitioner cannot expect the R&M to keep hold of a timer or any similar time-keeping system, every time every single task is undertaken. This is preposterous. Even if such measure is taken, then the Petitioner would still sidestep the evidence and contend that the timer records were prepared in reference to the Bill of Costs and were doctored. It would be endless. If ever this Court agrees to the Petitioner’s contention here, then the only feasible proof of proper time-costing would be the Petitioner himself to be present to time-keep all of the tasks performed by the R&M. This is utterly ridiculous. Even if a proper record of time-keeping is prepared, there are no manners at all for the Petitioner to ‘evaluate’ the record. [19] The Petitioner merely puts bare allegations that the Documents and DIC were doctored without any proof to substantiate its allegations. The learned SAR has astutely pointed out that the DIC and the Documents in Court dates even in the year 2008 which was submitted by the previous R&M 8 years ago. Thus, against the utterly bare unsubstantiated allegation by the Petitioner, it is more probable than not that the evidences are true and that the evidences are not doctored or tailored to mirror the particulars of the Bill of Costs. 12    [20] At the core of this contention, what is pertinent, is the Bill of Costs, and the evidences to prove the items of the Bill of Costs. The learned SAR has considered the items in the Bill of Costs and has made reference to the supporting evidences to conclude her findings. In that cross-reference, the learned SAR has correctly evaluated the Bill of Costs, and this Court is satisfied that the learned SAR has correctly decided that the evidences proves the tasks undertaken and time costs particularised in the Bill of Costs. The usage of the words “we”, “us”, and “team” is no proof of duplicity in claims [21] Unsurprisingly, the extent of the Petitioner’s nit-picking even goes as far to contend that there are duplicity in claims in that multiple person(s) in charge are claiming for the same tasks merely because the particulars of the Bill or the documentary reports, used the words “we”, “us” and “team”. [22] It is patently clear that the Petitioner is desperate to spur an issue out of nothingness that he has to resort to contend on pitiful issues of semantics and nomenclatures. 13    [23] In the reading of the Inception Report, it is the Petitioner’s contention that the usage of the words “our” “we” and “team” is evidence enough that the R&M has unnecessarily delegated and claimed in duplicity, the same time cost for one single task for multiple individuals. Again, there were no evidences to this allegation but merely a sad review in literature which bears no significance in the present case. [24] It is verily common that a group, or a group effort, an organization, a community, a committee, and a team would regard itself in the plural form, even for single individuals. This is a very simple concept to understand. More so since the parties in the present case are represented by learned lawyers of Malaya. Hypothetically speaking, this Court would say that it is very common in the legal fraternity especially so in a legal firm that an associate, or a partner of a law firm would regard himself or herself, as ‘we’ or ‘our’ or ‘us’ irrespective of who is personally assigned to conduct the case or carry out the task. [25] It is utterly telling that the Petitioner has no substantial challenges against the Bill of Costs and has no interest to pay anything for the R&M’s services. 14    Discrepancy between Reports and Bill of Costs not an issue [26] The Petitioner has attempted to cast doubts on the Bill of Costs in highlighting certain discrepancies between a preceding Status Report at 9.1.2007 with Part A of the Bill of Costs. The same discrepancy is highlighted between the same Status Report with Part B of the Bill of Costs. It is his contention that because there are two different figures appearing between the two documents, the Bill of Costs is verily doubtful. But this Court must emphasise that the discrepancy that occur here is not that the Bill of Costs is claiming a higher amount than the indicated amount in the Status Report. The Bill of Cost claims a lower amount instead. If anything, this is indicative that the R&M is earnest and honest in the preparation of the Bill of Costs rather than being any proof of doubt against the Bill of Costs. [27] Nonetheless, the learned SAR has considered and has satisfied herself with the evidence and explanation afforded by the previous R&M after scrutinising all the documents in Court. [28] The appellant has not challenged the performance of the R&M but merely put the limelight on the minute issue of the discrepancy. 15    [29] In the essence of assessment of damages, what is pertinent is proof. Notwithstanding the fact that there might be discrepancy between an initial claim and a final claim, the most important issue is proof. Even if there is a discrepancy, but if all of the evidence is sufficient to hold the claim, then there is no reason at all for this Court to not order payment on the proven claim. The Petitioner’s After-thoughts on Part B of the Bill of Costs [30] Very late into this case, after failing to challenge anything against the Bill of Costs the Petitioner has raised contentions on the amount of claims made in respect of the legal costs particularised in item 2 (Legal matters and proceedings) of Part B (Details of Work done and time cost for 1 July 2006 to 9 January 2007) of the Bill of Costs. [31] However, this Court is minded that these issues were not challenged at all right from the Notis Penetapan, Bankruptcy action, and even at the hearing of the assessment of the Bill of Costs before the learned SAR with the attendance of the Petitioner. These issues were only raised very late at this Appeal stage. It is apparent to this Court that this is merely an after- 16    thought and an excuse to either delay or avoid his liability to pay the Bill of Costs. Misreading of the Updated Report on the Possession of Assets 1 October 2007 [32] In a fallible attempt to discredit the Bill of Costs, the Petitioner has highlighted an alleged discrepancy between the Bill of Costs and the Updated Report on the Possession of Assets 1 October 2007 (“Updated Report”) in that the Updated Report only itemised works done from 21.9.2007 while the Bill of Costs claims for works done from 1.2.2007. [33] This is yet again another desperate attempt by the Petitioner to eschew from his liability to pay the Bill of Costs. [34] Verily, the Petitioner has misconstrued and misdirected this Court as to the relevance and purpose of the Report. What was contended to this Court is a malicious selective and isolated reading of the Updated Report. Although the Updated Report particularised the goings-on from 21.9.2007 it was never stated 17    that works were performed only from this date and that nothing at all was conducted from 1.2.2007 to 20.9.2007. [35] The Report was not the only document referred to in the Bill of Costs. And as correctly pointed out by the R&M, the Report is only an update of what the R&M has achieved as at 1.10.2007, and not any conclusive report of all the works carried out by the R&M between 1.2.2007 to 31.12.2007. [36] The learned SAR has not only looked at the Report but numerous other documents which were referred to in the same Bill of Costs, and was satisfied with the substantiation of the Bill of Costs. The Petitioner’s latent contention against Police Reports filed into Court [37] At this late stage, being the Appeal, after years having knowledge of the Police Reports the Petitioner suddenly raised issues against the Police Reports which were lodged by the R&M which were in fact appointed by the Petitioner’s own Application. The Petitioner now sought to discredit the Police Reports in that there is a want of details and clarity. 18    [38] However,  The Police Reports date to the year 2007. These are reports carried out by the R&M which were appointed through the Petitioner’s application himself. And at all times before this Appeal when these reports were given to the Petitioner, he has never denied any of the reports or complained of any want of details or clarity. It is already patently clear that the Petitioner has accepted and admitted the Police Reports for the last 8 years at least. There are no Repetitions or Duplicity as claimed by the Petitioner [39] The Petitioner in a last stitch effort contended that there was a repetition and duplicity of claims in Part C of the Bill of Costs in that the particulars of works regarding Police Reports in item 1.3 and 1.4 are duplicated in items 4.2 and 4.3. [40] Again this is yet another desperate attempt by the Petitioner in a selective and isolated reading of the documents put into Court. [41] It is vividly clear as pointed out by the R&M that there is no repetition between these items. Items 1.3 and 1.4 were written to cross-refer for further particular of works in 4.2 and 4.3. At the end 19    of item 1.3, it even reads in brackets “(refer to C.4.2)” and at the end of item 1.4, it reads in brackets “(refer to C.4.3)” [42] Clearly then, there is no repetition or duplicity as contended by the Petitioner. Particulars of Works in Part D of the Bill is included in the Status Report as at 31 October 2009 [43] The Petitioner repeats a similar contention that there is a discrepancy between the Bill of Costs with the Status Report as at 31 October 2009 in that the Status Report as at 31 October 2009 does not include any works from 1.1.2008 (as claimed in the Bill of Costs). [44] However, as astutely pointed out by the learned counsel of the Respondents, the particulars of work from 1.1.2008 in Part D of the Bill of Costs has already been proven by the same Status Report as at 31 October and numerous documents in Bundles 1- 25 filed into Court. 20    [45] Clearly the Petitioner is disinterested to read, examine and scrutinise the documents put into court. The same Status Report of 31st October 2009 does contain particulars of work from 1.1.2008 which cross-refers to all documents from bundles 1-25. Verily, this is a waste of the Court’s time and resources. The learned SAR has made the appropriate deductions to the Out- of-Pocket claims in Part E of the Bill of Costs [46] The Petitioner contended that there is a want of documentary proof to the Bill of Costs particulars regarding the R&M’s claim for out-of- pocket expenses in Part E of the Bill of Costs. This want of proof is somewhat the Petitioner’s ground to disprove the Bill of Costs. [47] However, it is reiterated that the essence of assessment, is the proof of claims. Mere discrepancies or a lack of documentary proof would not automatically discredit the totality of the Bill of Costs. It only means that the Court should be aware of such want of documentary proof and make the necessary reductions to the Bill of Costs. 21    [48] The learned SAR has already made the appropriate deductions for this lack of documentary proofs in cross-reference to the documents in Court. The learned SAR has applied her judicial mind correctly. [49] The Petitioner heavily relied on the recent Court of Appeal decision in Representatives of the Estate of Kuan Mei Ling, Deceased (Provisional Liquidator of the Respondent Company) v Metroplex Bhd [2013] 3 CLJ 196. The Court of Appeal held in para. 10 that: “In exercising its power to determine the salary or remuneration of a provisional liquidator, the court applies the test of what is fair and reasonable remuneration, to be awarded in the circumstances of each particular case, taking into consideration, among others, the complexity of the matter involved and the length of time taken to complete the task given to the provisional liquidator” The Court of Appeal further held in the case above in para 16: 22    “It is trite that the provisional liquidator may be reimbursed of the expenses properly incurred out of the company’s assets that were administered by the provisional liquidator and were held by them. The burden was on the PL to show her entitlement to the fees and costs that she claimed and that the remuneration was justified. Therefore, the PL had an obligation to provide sufficient supporting information before court in order to facilitate the court to determine whether the costs were reasonable or not”. [50] This Court does not intend to contra the Court of Appeal’s decision above. The principle is indeed sound. However, be that as it may, the principle does not benefit the Petitioner at all. The learned SAR has considered all the relevant documents and proofs in assessing the justifiability of the Bill of Costs while the Petitioner has only come to Court contending mere speculation and bare assertions and contentions. The R&M has come forth to the best of their capability with substance, while the Petitioner has only come forth with mere conjectures and speculations. [51] Thus, it is this Court’s decision to not interfere with the decision of the learned SAR. This Court finds that the learned SAR has 23    assessed the Bill of Costs on proper principles of law and due consideration and references to numerous documentary proofs which were filed into Court. [52] This Court is guided by the recent High Court decision in the case of Globaltech Enterprise Sdn Bhd v Commerce Assurance Bhd [2014] 1 CLJ 517: “[11] In a taxation, the SAR must exercise his discretion judicially by considering the facts, the complexity of the case, the skill, specialized knowledge, the importance of the case to the parties and the work done or necessarily done etc: Kamalam Raman & Ors v. Eastern Plantation Agency (Johore) Sdn Bhd & Ors [1997] 5 CLJ 250; [1996] 4 MLJ 674. Failure by the SAR to consider matters which ought to be taken into account before exercising his discretion would mean that the SAR has erred in law: United Malayan Banking Corp Bhd v. Sykt Perumahan Luas Sdn Bhd [1991] 1 CLJ 594; [1991] 4 CLJ (Rep) 163; [1991] 3 MLJ 181, Co- Operative Central Bank Ltd v. Tan Nyap How [1997] 1 LNS 414; [1997] 4 MLJ 568. 24    [12] Generally the court will not interfere with the decision of the SAR on a mere question of quantum if the SAR has exercised his discretion after consideration of all the circumstances and if no error of principle or some other material error arises. It is only when the SAR discretion has been exercised on wrong principle or the quantum allowed is obviously wrong that the judge will interfere: Malayan Trading Co & Anor v. Lee Pak Yin [1940] 1 LNS 53; [1941] MLJ 207, Chin Cham Sen v. Foo Chee Sang & Anor [1952] 1 LNS 15; [1952] MLJ 99, Starlite Ceramic Industry Ltd v. Hiap Huat Pottery [1973] 1 LNS 143; [1973] 1 MLJ 146, Union Insurance Malaysia Sdn Bhd v. Chan You Young [2003] 7 CLJ 50.” C. COURT’S DECISION [53] In light of all of the above findings, it is this Court’s decision that the Petitioner has ultimately failed to prove its case. [54] This Court hereby dismisses the Petitioner’s Appeal. 25    [55] This Court hereby orders that the decision of the learned SAR Sharifah Muhaymin binti Abd Khalib dated 19.8.2015 to remain and the Petitioner to pay to the Respondents the amount ordered in the same decision above. On the issue of costs [56] Having heard the submission from the learned counsels for the Petitioner and the Respondents, this Court hereby orders the Petitioner to pay the Respondents a global sum of RM5,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 19th of February, 2016 26    For the Petitioner - Messrs. Hazura Yusoff & Partners Mr Abdul Rashid bin Akhir For the 1st Respondent’s Previous R&M - Messrs Thomas Wong & Co Mr. Thomas Wong Ms. Maizatul Akmal

Tika 2.6.0

S-22-909-2008

PLAINTIF APT Associates Sdn Bhd DEFENDAN 1. ADNAN BIN ISHAK 2. MOHD AMIN BIN ISHAK 3. ARIFIN BIN HAJI ISHAK 4. MASLIAN BINTI ISHAK 5. MAHYUN BINTI ISHAK 6. MASTURA BINTI ISHAK 7. SITI ROGAYAH BINTI HAJI ISHAK 8. ISMAIL BIN ISHAK 9. AINUN BINTI MOHD JAMIL 10. ROHANI BINTI HASHIM 11. AWALLUDIN BIN ABDUL HALIM 12. ZAINAB BINTI ULONG 13. MAHANOM BINTI ABD KARIM 14. NOSLAN BIN IBRAHIM (No. K/P: 490414-08-5791) (As personal representative to Ibrahim Bin Abdullah, deceased) 15. KHAIRUDDIN BIN ABD HALIM 16. SITI AISHAH BINTI HAJI DOLLAH 17. ZAINUDDIN BIN ABD KARIM 18. KALSOM BINTI YAHYA 19. MARIAH BINTI ABDUL MUIN (No. K/P: 581008-10-5578) (As personal representative to Maimon Binti Abdul Karim, deceased) 20. JUHARI BIN YAH

19/02/2016

YA DATO' LEE SWEE SENG

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1 IN HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY MALAYSIA (CIVIL DIVISION) SUIT NO. S-22-909-2008 BETWEEN APT ASSOCIATES SDN BHD ... PLAINTIFF AND 1. ADNAN BIN ISHAK 2. MOHD AMIN BIN ISHAK 3. ARIFIN BIN HAJI ISHAK 4. MASLIAN BINTI ISHAK 5. MAHYUN BINTI ISHAK 6. MASTURA BINTI ISHAK 7. SITI ROGAYAH BINTI HAJI ISHAK 8. ISMAIL BIN ISHAK 9. AINUN BINTI MOHD JAMIL 10. ROHANI BINTI HASHIM 11. AWALLUDIN BIN ABDUL HALIM 12. ZAINAB BINTI ULONG 13. MAHANOM BINTI ABD KARIM 14. NOSLAN BIN IBRAHIM (No. K/P: 490414-08-5791) (As personal representative to Ibrahim Bin Abdullah, deceased) 15. KHAIRUDDIN BIN ABD HALIM 16. SITI AISHAH BINTI HAJI DOLLAH 17. ZAINUDDIN BIN ABD KARIM 18. KALSOM BINTI YAHYA 19. MARIAH BINTI ABDUL MUIN (No. K/P: 581008-10-5578) (As personal representative to Maimon Binti Abdul Karim, deceased) 20. JUHARI BIN YAH … DEFENDANTS 2 THE JUDGMENT OF Y.A. TUAN LEE SWEE SENG [1] There was a piece of agricultural land near to Jalan Pahang in Setapak, Kuala Lumpur of about 1.3 hectares. It was held under GM 1748, Lot 275, Mukim Bandar Kuala Lumpur, Tempat Batu 3, Setapak, Wilayah Persekutuan Kuala Lumpur (the said Land). It was registered in the names of about 85 proprietors; most of them senior citizens. From the undivided shares of the whole of registered proprietorships owned by each proprietor expressed in fractions on the title, it can be surmised that the whole piece of the said Land had been passed down from their forbears to the current owners. Some of them have died and so some have the names of their personal representatives registered against the deceased's undivided share. Almost all the registered proprietors are Malays. [2] Some 31 of the proprietors were prepared to and did sign an Option to Purchase ("OTP") dated 18 November 2000 with one Mr Amit Chhabra a/l Ashok Kumar Chhabra (Mr Amit) to sell the said Land for RM2,000,500.00. Later on 20 November 2000 Mr Amit assigned his rights in the OTP to the plaintiff. Basically the 31 proprietors warranted and represented to Mr Amit that all the registered proprietors had agreed to sell their respective undivided shares in the said Land to Mr Amit or his nominee for the said purchase price and further that all the registered proprietors had agreed jointly and severally to sign the OTP with the plaintiff. The rest of the 54 proprietors did not sign the OTP. 3 [3] Be that as it may the 31 proceeded to sign a sale and purchase agreement with the plaintiff for the sale of their respective undivided shares of the whole of the said Land for a purchase price of RM2,000,500.00. The 31 will of course only be paid based on their portion of the undivided share. The various sale and purchase agreements were signed with each of the 31 proprietors between February 2001 and May 2002. Problem [4] The sale and purchased agreements executed contained a clause that reads: “The Vendor agrees covenants and undertakes to procure the consensus and consent and to ensure that all other registered co- owners shall transfer their respective shares to the Purchaser or its nominees." The problem endemic in the sale of such a land where the majority have not signed the OTP nor the sale and purchase agreement and where some of the registered owners have died was peculiarly addressed in the completion clause. It was provided that other than the payment of 10% of the purchase price for the respective undivided shares of the owners who signed the sale and purchase agreements, the balance 90% will only be paid within 90 days upon the happening of the last of 4 events. [5] The 4 events are: a) upon Letter of Administration having been taken for any registered owner who is deceased or Probate as the case may be; b) upon a court order pursuant to s 60(3) Probate and Administration Act 1959 having been granted for the approval and consent to transfer by any personal representative or executors; c) upon the date the last registered owner having executed the sale and 4 purchase agreement to transfer his undivided shares to the purchaser and; d) upon the vendors' solicitors written confirmation that the original issue document of title is in their possession. [6] Nothing happened after the sales and purchase agreements were signed with the 31; not from the evidence adduced at least. On 28 March 2007 the plaintiff as purchaser, wrote to the vendors' solicitors Messrs Khalek Awang & Associates ("KAA") and gave to the vendors a 3 months' notice and a further extension of 2 months till 31 August 2007 to procure the rest of the registered owners to execute the OTP and/or sale and purchase agreement. [7] The plaintiff tendered payments of the cheques for the balance purchase price by cheques dated 20 and 23 November 2007 (pages 13- 21 Bundle B2). The question may be asked why the plaintiff was so keen as to fast forward the completion date even before the last of the 4 events have been fulfilled, if at all it is capable of fulfillment without being overtaken by any one of the 4 events. It transpired that the Government had acquired the whole of the said Land and by the date the balance purchase price was tendered for payment, the fact of acquisition was already known by the parties. [8] The balance purchase price was not accepted by the vendors. The plaintiff as purchaser threatened to sue. The plaintiff and some of the vendors managed to settle. The plaintiff sued 20 defendants here who could not settle with them. Finally the plaintiff and the other defendants entered into some settlement or consent order. This case went for trial only with respect to the 13th defendant (D13) and the 19th defendant (D19). They shall sometime be referred to as the 5 "defendants" or sometimes the "2 defendants" for emphasis as opposed to the rest of the defendants who shall be referred to as the "original defendants". [9] The undivided share of D13 and D19 was 1/72 each. D19 had died and both plaintiff and the defendant had agreed to the name of her personal representative to be substituted therefor at the case management before trial. The total purchase price of D13 and D19 based on their undivided shares was RM27,784.54 for each of them (pages 25-46 and 69-90 Bundle B1). The sale and purchase agreements for D13 and D19 were dated 23 February 2001 and 20 May 2002 respectively. Only 10% of the said purchase price was paid to the defendants' solicitors KAA upon the signing of the respective sale and purchase agreements. Pleadings and Prayers [10] The plaintiff is claiming damages to be assessed for loss of opportunity to receive and share in the compensation sum and to challenge the reasonableness of the award given with respect to the other undivided shares not signed by the other co-proprietors as a direct result of the breach of D13 and D19 of the sale and purchase agreement in that they had failed to get them to sign their respective sale and purchase agreements with the plaintiff. The plaintiff contended that the loss of opportunity was within the contemplation of the defendants. The relevant particulars are as found in paragraph 42 of the statement of claim. 6 [11] For clarity and the avoidance of doubt, the plaintiff in its submissions had stated at paragraph H.1. that it is not claiming that it is entitled to the compensation award granted by the Land Administrator or for that matter the increased award given by the High Court upon a reference from the decision of the Land Administrator. [12] For completeness, the High Court in 15NCvC-2-02/2013 in a reference from the Land Administrator on the issue of the quantum of the award and the person entitled to the award, had increased the award to the registered owners by another 50% and that the plaintiff was not amongst the persons entitled to this increase in the award. The award obtained by the plaintiff as given by the Land Administrator was the sum equivalent to the 10% of the purchase price that it had paid the various vendors under the sale and purchase agreements entered into with the individual owners. The award of the defendants given by the Land Administrator based on their 1/72 portion was RM 92,806.47 each as compared to the purchase price of a mere RM27,784.54 each. Whereas the contracted purchase price for the whole of the said Land was RM2,000,500.00, that which was awarded by the Land Administrator as compensation for the said Land was RM6,882,114.00 as can be seen from the order of the Land Administrator at page 43 of Bundle C. It was based on RM100.00 per square foot. [13] It was submitted with considerable force by the defendants that this suit is an attempt by the plaintiff to get at what they had failed to obtain in the land reference, i.e. its entitlement to the whole compensation sum payable to the original defendants or for that matter, whatever is meant by the loss of opportunity arising out of its failure to obtain the compensation sum awarded to the other registered owners 7 who did not sign a sale and purchase agreement with it; all caused by the failure of the 2 defendants here to honour their warranty and undertaking that they would, jointly and severally with the other owners who did sign the sale and purchase agreement, get the rest of the owners to so sign the sale and purchase agreement with the plaintiff. [14] The defence of the defendants as pleaded was that the agreement was uncertain with respect to the completion date and that the contract was impossible of performance by the defendants and the terms unreasonable and unconscionable. Further it was contended that the plaintiff had not come with clean hands and had proceeded in bad faith to tender payment of the balance purchase price, having come to know of the Government's acquisition of the said Land and intending to reap a windfall from the compensation award which would doubtless be based on the then current market price and not the price negotiated with the defendants in 2001/2. Principles Whether the contract is void for uncertainty [15] S 30 of the Contracts Act 1950 provides that agreements may be void either because its meaning is uncertain or that it is not capable of being made certain. S 30 reads as follows: "Agreements void for uncertainty 30. Agreements, the meaning of which is not certain, or capable of being made certain, are void." 8 [16] Like all sale and purchase agreements for land, the completion date must be certain otherwise one would not be in a position to determine if the time of completion is up and whether the balance purchase price should then be paid. The crux of the matter is the uncertainty with respect to the fulfillment of the conditions for completion of the sale and purchase agreement. [17] In the sale and purchase agreements between the plaintiff and the defendants, whilst we know that one of the 4 events mentioned in the Completion Date clause may trigger the payment of the balance purchase price and with that the completion of the agreement, we are totally lost as to when these events may take place and whether it would take place at all for one would have to wait for the last of the 4 cumulative events to happen. [18] Thus while completion is event-based and there is nothing wrong with that, there is no certainty as to when these events may take place. It is event-based conditions with the last condition being the triggering condition for payment of balance 90% of the purchase price. [19] However some 6 years had passed since the agreement was signed for the sale and purchase of the defendants' undivided share in the said Land. There were some 54 registered owners who had not signed the sale and purchase agreements and the defendants together with those who signed had warranted and undertaken that they will get all the rest to sign. [20] No time frame was fixed for getting all the rest to sign including the last person. There was also the anticipation that some owners might die 9 before the conditions are fulfilled for they were said to be senior citizens and so there was also a condition that Letters of Administration or Probate as the case may be should have been taken out for the deceased’s estate. Most of the registered owners are Malays and there was anticipated the need to obtain the Sijil Faraid from the Kathi's office on proportion to distribute a deceased person's undivided share in a land before applying for the necessary order of court under s 60(3) of the Probate and Administration Act 1959 for the approval and consent to transfer by any personal representative or executor of the beneficiaries' undivided share to a third party. [21] Indeed from the documents exhibited at pages 83-93 of Bundle C2 which is the Form H Notice of Award and Offer of Compensation sent out by the Land Administrator dated 5 February 2008, we can see from the list of names of persons having interest that 18 of the proprietors of the said Land had died. The fact that many of them are senior citizens can be gathered from the identification cards numbers written below their names in the said Form H. [22] Further apparently nobody quite know where the issue document of title to the said Land was kept and no evidence was given by the parties on this and hence the condition to be fulfilled i.e. "upon the vendors' solicitors written confirmation that the original issue document of title is in their possession." Presumably it had gone missing for in D13's Letter of Appointment of Solicitors dated 22 December 2000 (Exhibit D17) she had authorized KAA to make a police report on the misplaced or stolen issue document of title. 10 [23] All these conditions are set out in Part 11 of the First Schedule to the sale and purchase agreement and identical conditions are found also in Part 8 of the First Schedule on the "Manner and Time of Payment" and are reproduced below: "Completion Date “10% of the total purchase price shall be paid upon signing the Sale and Purchase Agreement and the balance 90% to be paid within 90 (ninety) days from: EITHER: a) Upon letter of administration having taken for any registered owner who is deceased or Probate having been taken for any registered owners; and b) Upon Court’s Order pursuant to Section 60(3) Probate Administration 1959 having been granted for the approval and consent to transfer by any personal representative or executors (as the case may be); or c) Upon the date for the last registered owner having executed the sale and purchase agreement to transfer his/her/their respective portion of shares to the Purchaser; or d) Upon vendors solicitors written confirmation that the original issue document of title is in their possession, 11 whichever of a), b), c), and d) shall be last to occur." [24] There was also the "SPECIAL EXPRESS CONDITIONS" in the Second Schedule to the sale and purchase agreement that reads: "Notwithstanding anything to the contrary herein contained: 1. The vendor agrees undertakes and covenants that he/she shall take all necessary steps to procure a new individual Issued Document of Title from the relevant Land Registry. 2. The vendor agrees to execute a Power of Attorney in favour of the purchaser or their nominees. 3. The Vendor agrees covenants and undertakes to procure the consensus and consent and to ensure that all other registered owner shall transfer their respective shares to the Purchaser or their nominees." [25] Learned counsel for the plaintiff, Mr Francis Goh, conceded that if the plaintiff did not tender the payment of the balance purchase price on that fateful date in November 2007, he could still wait another 5 or 10 or even longer than that and he could still complete after the last of the 4 events have happened. That to me can only underscore the point that the contract was void for uncertainty. One cannot suffer an agreement with no completion date in sight extending to an indeterminate date and stretching it to infinity, or perhaps eternity! 12 [26] Already at the point when the suit was commenced in 2008, 2 out of the 20 defendants had died namely D14 and D19. They had been substituted by the name of their personal representative. As most of the registered owners are senior citizens one can only expect that with the passage of time, in the natural progression of human life and lot, more and more would pass away. While that alone by itself may not render an agreement void for uncertainty, the combined effect, of 85 registered owners with only 31 having signed the sale and purchase agreement with the plaintiff and the 31 having agreed to procure the remaining 54 to sign the agreement, can only mean the uncertainty would be escalated many times over. [27] Imagine for a moment one registered owner amongst the 54 who had not signed the sale and purchase agreement, having died after the 31 had signed their agreement; there would be no one to represent him until a personal representative is appointed by the Court and the deceased undivided share not being transferable until a Court order is obtained sanctioning the sale. Indeed there would be no one who could sign the sale and purchase agreement until the Court has granted an order for Letters of Administration or Probate to the deceased's estate and the same has been extracted. Then there is a separate application to be made to the Court for the sale of the deceased's land to the plaintiff in this case and if there is minority interests in the deceased's estate, then there is a need for the personal representative to produce a valuation report to show that the purchase price is at least comparable to the market value. As decided by the Court of Appeal in Che Ah and Che Yang Kelsom v Che Ahmad [1941] MLJ 105 the Court is under a duty to ensure that the land is sold at the best price in the interest of the beneficiaries. One can only sigh that with each passing year, the market 13 price can only be higher and higher compared to the price at which the 31 signed the sale and purchase agreements. There is a real likelihood that the Court may not approve the sale. As was observed by Lord Russel in the Privy Council case of Gan Khay Beng v Ng Liat Cheng & Ors [1982] 1 MLJ 163, a purchaser takes his chance of a contract not being approved by the Court. [28] That is already assuming that the other beneficiaries who are major, consent to the sale of his portion to the plaintiff at the same price at which the 31 had agreed to sell their portion to the plaintiff. Little wonder that conditions (a) and (b) above are conjunctive; it is "both and" and not "either or". [29] With each passing year one can only expect more uncertainty to be introduced for the obvious certainty that people do die and more so when they are already old. One need not be a mathematician to appreciate the permutations possible with the peculiarities and propensities of being human that can only aggravate the uncertainty with the passage of time. [30] The Court cannot rewrite the terms of a contract that suffers from the infirmity of uncertainty when the parties could not agree. It is the kind of infirmity that is incurable. The plaintiff who had equally been silent after the sale and purchased agreements were signed with the 31 registered owners around the year 2000 and 2001, cannot suddenly wake up from its stupor and spring into action by now stipulating on 28 March 2007 that the defendants as originally sued must now fulfill the 4 conditions for payment within 3 months with a 2 months' extension with the deadline being fixed on 31 August 2007 (pages 11-12 Bundle B2). 14 The reason given is that the plaintiff is now ready to complete the agreement eventhough the last of the 4 events have not happened yet. [31] The payment of the balance purchase price was rejected by the vendors' solicitors. An agreement that is uncertain at the point it was made cannot be remedied by one party, in this case the purchaser, by it unilaterally introducing a fixed timeframe to complete the agreement when previously it was event-based, awaiting the fulfillment of the last of the 4 events agreed upon. [32] In Wisma Sime Darby Sdn Bhd v Wilson Parking (M) Sdn Bhd [1996] 2 MLJ 81 at p 93, the Court of Appeal speaking through his Lordship V C George JCA observed that the agreement itself must provide the machinery or some formula which the court can utilize to ascertain what is otherwise unascertainable without the parties coming to an agreement. His Lordship reiterated that the courts will not lend their aid to the enforcement of an incomplete agreement. There the Court of Appeal struck down an option clause to renew the tenancy agreement for being void for uncertainty as it was subject to 'a rent to be agreed' and there was no machinery to ascertain the rent in a case where the parties could not agree on the rent for the renewed tenancy. [33] The Court of Appeal case of Saw Siew Tuan v Omicrast Manufacturers Sdn Bhd [2013] MLJU 658 is equally instructive. There the sale of the land was subject to the approval of the relevant authorities and that the balance purchase price was to be paid within 2 months "from the date of receipt by the Vendor of the document of title in respect of the said Property and the necessary approval for transfer (if any) in favour of the Purchaser whichever is later”. Appreciating that the 15 completion of the contract was predicated upon the occurrence of certain events, the Court of Appeal nevertheless had no compunction in concluding that the completion of the contract was uncertain and that the sale and purchase agreement was thus void for uncertainty under s 30 Contracts Act 1950. The Court of Appeal couched its conclusion as follows: “[8] It was provided by clause 3 of the preamble to the SPA that the sale of the Property was subject to the approval from the relevant authorities being obtained. The SPA provided further that the balance purchase price was to be paid to the appellant’s stakeholders within two months “from the date of receipt by the Vendor of the document of title in respect of the said Property and the necessary approval for transfer (if any) in favour of the Purchaser whichever is later”. Thus completion of the contract between the appellant and the respondent was predicated on the occurrence of certain events. Taking into consideration the fact that at the material time the appellant had no good title to the Property and the fact that the SPA did not provide for any time period for the appellant to obtain approval for alienation of the Property in her favour, and considering the fact that there was no certainty that the State Authority would approve the appellant’s application (North East Plantations Sdn Bhd v Pentadbir Tanah Daerah Dungun & Anor, supra), we agreed with learned counsel for the appellant that the completion of the sale and purchase transaction was uncertain and therefore the SPA was void for uncertainty (s 30 Contracts Act 1950). For the reasons stated we allowed the appeal and set aside the decision of the High Court.” 16 [34] The plaintiff had pointed out quite astutely, that the 2 defendants have not shown what efforts they have taken to get the remaining registered owners to sign the sale and purchase agreement. Here is a case where if an agreement is void for uncertainty at the outset, there is no obligation on the part of the 2 defendants to show that they have done something but failed in the final outcome. D13 is a feeble and frail woman of 84 years old; her bent frame could hardly support her walk and her speech was hardly audible. D19 had passed on before the agreement was dated and it was only at the case management before me that parties agreed to substitute one of her children as her personal representative in the suit. [35] Looking at the whole circumstances of this case I would say that the completion date is clearly uncertain being pegged to events that are even more uncertain rendering the sale and purchase agreements with the 2 defendants void for uncertainty. [36] On this ground alone the plaintiff's claim for damages for the loss of opportunity in having a share in the compensation paid out to the other registered owners who did not sign the sale and purchase agreement with the plaintiff, would fail flatly. The sale and purchase agreements being void, the plaintiff cannot premise and pursue any claim for damages based on it. [37] The plaintiff is entitled to receive a refund of all monies paid under a void contract. Under s 66 of the Contracts Act 1950 it is provided as follows: 17 “Obligation of person who has received advantage under void agreement, or contract that becomes void” 66. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it” (emphasis added) [38] Here it is an agreed fact that the Land Administrator had awarded a compensation to the plaintiff based on the 10% of the purchase price paid. It cannot be disputed that what had been offered to the plaintiff as compensation was deducted from what the defendants would have been ordinarily entitled to. In other words the defendants' share of the compensation was reduced by so much of the sum, here equivalent to 10% of the purchase price paid to the defendants, as was awarded to the plaintiff. Reference is made to page 43 paragraph 2 of the order of the Land Administrator in Bundle C2. The plaintiff had thus received back their 10% of the purchase price though through the channel of the Land Administrator. The plaintiff appealed to the High Court both on quantum and on the parties entitled to receive the award but it failed in the appeal. The matter rested there. [39] As for the claim here, the plaintiff had clarified through its learned counsel that it is not claiming that it is entitled to what the defendants had received as compensation award for their undivided shares in the said Land the whole of which had been acquired by the Government. 18 Whether more than a reasonable time had passed for the conditions to be fulfilled by the defendants [40] Assuming for a moment that I had been wrong and that there was nothing uncertain about the contract in that one could visualize the 4 events triggering completion happening finally except that one is not quite sure when these events and with that the last event, would take place, the question then is whether more than a reasonable time had passed for the conditions governing completion to be fulfilled by the defendants. [41] The question is relevant because of s 47 of the Contracts Act 1950 which provided as follows: "Time for performance of promise where no application is to be made and no time is specified. 47. Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time." (emphasis added) [42] Nothing happened after the sale and purchase agreement was signed in 2000 and 2001 for D13 and D19 respectively. The plaintiff would like us to believe that from time to time they had contacted the vendors who had signed the sale and purchase agreements with respect to the progress in the compliance with the conditions imposed for the completion of the agreement. However there were no witnesses called on this though the Court was told by learned counsel for the plaintiff that 19 the rest of those who had signed the agreement including the rest of the 18 original defendants have settled with the plaintiff. The plaintiff being represented by solicitors would have instructed their solicitors to write to the defendants' solicitors on this but no letters were produced other than the fateful letter of 28 March 2007 giving notice to the defendants to complete the agreement and the letters thereafter. Even if the plaintiff did not want to trouble its solicitors on this, surely it must be able to produce letters that it had personally written to the defendants after the sale and purchase agreements were signed in 2000 and 2001. However not a single letter was produced. In all probabilities nothing happened between the plaintiff and the defendants until the fateful letter of 28 March 2007 from the plaintiff to the defendants fixing 31 August 2007 as the deadline for the completion of the agreement. [43] All of a sudden on 28 March 2007 the plaintiff wrote to the defendants’ solicitors giving them 3 months with 2 months' extension to complete the agreement! Soon after that the Declaration of Intended Acquisition in Form D under the Land Acquisition Act 1960 was gazetted on 11 June 2007. See 59 - 61 of Bundle C2. The whole piece of the said Land was to be acquired for the Duta-Ulu Klang Highway Project ("Duke Highway Project"). The Notice of Enquiry in Form E dated 5 July 2007 was sent out by the Land Administrator to the registered owners and all caveators including the plaintiff. [44] The defendants submitted that the plaintiff had all of a sudden decided to fast-forward completion because they wanted to be able to enjoy the benefits of the compensation. The plaintiff would want the Court to believe that it was clueless as to the land acquisition when it issued the letter of 28 March 2007 giving what it said was a reasonable 20 time for the defendants to fulfill the conditions for completion. On the contrary, the sequence of events that unfolded militates against that. There is no rational basis for the plaintiff to rush to completion when its solicitors have yet to obtain the issue document of title from the defendants or whoever might be keeping it or a replacement title if it had gone missing. Without that, it be foolhardy and throwing caution to the wind and indeed assuming unnecessary risk to pay the balance purchase price without the title in the possession of one's solicitors. The solicitor handling the transaction for the plaintiff (DW4) testified in Court but never once did he mention that the title had been delivered to his firm. The reason was obvious; with the land acquisition who would need the title anymore? What would be necessary was to show tender of the balance purchase price and with that one becomes the beneficial owner and the registered owners who had signed the sale and purchase agreements, mere bare trustees for the plaintiff. Hence any compensation sum would rightly have to be held in trust for the plaintiff even if paid to the defendants. More than that the plaintiff reckoned it would be in a position to claim for damages arising from the failure of the defendants to complete the agreement and that would be the loss of opportunity to claim the compensation award given to the 54 registered owners whom the defendants failed to procure their signing the sale and purchase agreement with the plaintiff. [45] How about the sine quo non of the sale and purchase agreements signed with the defendants as reflected in the Completion Clause in that all must sign the sale and purchase agreement for the whole of the said Land and until and unless that has happened, the plaintiff is not legally obliged to pay the balance purchase price? The answer is only too obvious: with the acquisition it would no longer be necessary to 21 purchase the undivided shares of the other registered owners but that it can try to stake a claim still for the loss of opportunity to enjoy a share of the compensation award paid to the other registered owners. [46] At the risk of repetition, the plaintiff's claim is not a claim for damages for not being able to get a share of what was paid to the defendants as compensation award but damages to be assessed for the loss of opportunity to receive the compensation award paid to the other registered owners who did not sign the sale and purchase agreement with the plaintiff inspite of the defendants warranting that they would get them to do so. [47] Admittedly if the plaintiff cannot legally claim the compensation award granted by the Land Administrator and later increased by the High Court on a reference from the Land Administrator, how is it then able to get damages for loss of opportunity to participate in and profit from the compensation award given to the other registered owners? If the plaintiff had failed at the stage of better entitlement against the defendants, how is it to succeed at the more remote stage of claiming against the defendants for damages arising out of the so-called breach by the defendants in honoring the agreement? [48] I do not believe the plaintiff when through its managing director Mr Amit PW1, it informed this Court that it was unaware of the acquisition. By his own testimony he received the Notice of Enquiry of the Acquisition on 8 August 2007 but that he did not understand what the Notice was all about. Judging by his flair in and fluency of the Bahasa Malaysia language that he used in his testimony in Court, I could only say that his usage of the language was quite flawless. It was a simple 22 Notice of Enquiry of an Intended Acquisition and stating the time, date and place of the hearing of all parties that have an interest in the said Land. The hearing date was fixed on 7 August 2007. As a matter of practice the Land Office would send to all caveators of a land the subject matter of an intended acquisition by the Government. Even giving the benefit of the doubt to him, it would be most reasonable to expect him to get someone who understands the language better to explain to him. At any rate he did attend the subsequent hearings before the Land Administrator though he missed the first preliminary hearing. He was partly to be blamed because the registered office stated in the plaintiff's caveat entry form had changed and the plaintiff had not informed the Land Office about it. The long and short of the matter was that by the time the cheques were made out and dated 28 November 2007, the fact of the compulsory land acquisition was known to all interested to know. [49] It is not disputed that the acquisition of the said Land was for the Duke Highway Project. The Court can take judicial notice of where the Highway passes through. In line with the Government's initiative to engage all stakeholders including registered owners of lands to be acquired for such a massive highway project of public interest, one would have expected opportunities available for the public to inspect the Master Plan of Kuala Lumpur for instance and for land surveys to have been done before with opportunities given to all who might be affected to put in their objections and representations. The Court can take cognisance of the fact that those who intend to buy land for development would be in the know as to where a highway might be located. [50] The scheme of compulsory land acquisition under the Land Acquisition Act 1960 is such that before the gazette notification of Form 23 D of a Notice of Intended Acquisition there is first a preliminary notice under s 4 of the Act where a notification in Form A Notice that Land is Likely to be Acquired will be gazetted. Under paragraph 2 of the said Notice it is stated that persons authorized by the State Director may enter the Land to examine it and to undertake survey operations. The things that may be done on the land by these persons authorized to enter the land are provided for in Form B Authority to Enter Survey. In short one would expect some activity on the land to be acquired before the gazette notification in Form D Declaration of Intended Acquisition. [51] To believe the plaintiff's managing director that he was oblivious to a possible acquisition affecting the said Land in March 2007 goes contrary to the condition set by the plaintiff for the purchase of the said Land in that all must sign the sale and purchase agreement or else the plaintiff is not interested. The way the agreement was crafted with respect to completion was that the plaintiff was prepared to wait for as long as necessary for it had only paid 10% of the purchase price. The purchase price had been locked in such that even if the said Land has appreciated the defendants, in the plaintiff's belief, cannot ask for more. What is more, the other registered owners who would eventually sign the sale and purchase agreement have to sell their undivided share at the same price per square foot! [52] This Court found it difficult to believe the officer from the Land Office DW 2 who testified that even in this case of a Duke Highway Project, no one would know of any intended acquisition until the Declaration of Intended Acquisition in Form D is gazetted. It would be naive of the Court to believe that. It is not unlike the case of Kuala Lumpur International Airport (KLIA) in Sepang, though here it is on a 24 much smaller scale. Once it was known that a new international airport was going to be located in Sepang, those privy to this knowledge had started buying off lands there from village owners and small shareholders, and in due course reaped their windfall. This is not the kind of acquisition where there are merits and value in shrouding it in secrecy until the gazette notification of acquisition is out. It is the kind of project for public interest where a maximum consultation with all who might be affected would be beneficial for all. [53] This Court can take judicial notice of the fact that lands in Kuala Lumpur especially when it is near to a highway can only appreciate in value with the passage of time. Take this said Land for instance. The purchase price agreed was RM30.00 psf when the sale and purchase agreements were signed in the year 2000 and 2001. [54] The land acquisition price is of course based on the current market value of the said Land then and it was awarded at RM100.00 psf by the Land Office and on reference to the High Court the compensation was increased by another 50% to RM150.00 psf. There was, looking back, a whopping 400% increase or windfall as learned counsel for the 2 defendants, Encik Baharuddin Ali, put it. [55] The question to be determined is whether more than a reasonable time had passed for completion of such an agreement with no price adjustment and with no certainty of completion date. [56] The plaintiff has no rhyme or reason nor rationale for fast- forwarding the completion of the agreement in 2007 if not for the fact that it wanted the windfall that would come from the acquisition. There is 25 no other plausible reasons for the plaintiff to want to fast-forward the completion when as it is the last of the 4 events is yet unknown when it will come to pass. The managing director of the plaintiff reluctantly admitted this to a question from the Court, though through its learned counsel it had clarified that the plaintiff was not claiming for that compensation awarded to the defendants but the loss of a chance to share in the compensation awards granted to the other registered owners as the defendants failed to procure them to sign the sale and purchase agreement. [57] In all the circumstances of the case a period of some 6 to 7 years of passage of time from the dates of the sale and purchase agreements of the 2 defendants for the plaintiff/purchaser to now demand completion is unreasonable as more than a reasonable time had passed from the time the agreements were executed. If the plaintiff had wanted to declare the defendants at default, it should have done so long ago before there was any acquisition. Once a reasonable time had passed, both parties are released and discharged from their obligations to perform the contract. [58] The plaintiff by its own inaction had allowed the contract to lapse or expire by the passage of a reasonable time and it cannot be unilaterally revived or reinstated by the plaintiff giving a fixed time frame of 3 months with 2 month's extension for the defendants to now fulfill the conditions for completion of the contract. Such a contract would clearly be unconscionable within the principle enunciated by the Court of Appeal in Saad Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98 and a court of law would not allow its enforcement. 26 Whether the contract has become impossible to be perform by the defendants after the land acquisition by the Government [59] Assuming for a moment for the sake of argument that the contract is not void for uncertainty and that it is still within a reasonable time for the defendants to fulfill the conditions stated in the agreement for the payment of the balance purchase price, then the question that arises would be whether the contract has become impossible of performance now that the Government has acquired the said Land in June 2007. It must be borne in the forefront of our mind that the contract entered into was for the rest of the owners to sign the sale and purchase agreement with the plaintiff for them to dispose of their respective undivided shares in the said Land at the same price at which the defendants had contracted to sell to the plaintiff. [60] S. 57(1) of the Contracts Act 1950 deals with an agreement to do an impossible act. It may be an act that becomes impossible of performance after the contract is made as in s 57(2). The impossible act is not caused by the promissor but by a supervening event beyond the control of the promisor. S 57 reads as follows: "57. (1) An agreement to do an act impossible in itself is void. (2) A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful." (emphasis added) 27 [61] Once the Government had acquired the said Land inclusive of the undivided shares of the other owners who had not signed any sale and purchase agreements with the plaintiff, there was no longer any land for these owners to dispose of. It does not help the plaintiff at all, when tendering the payment of the balance purchase price, to still hold the defendants to the requirement that they must of necessity fulfill this obligation in the agreement. [62] The plaintiff by its very own admission through its managing director, said that it received the Notice of Enquiry from the Land Office in Form E on 8 August 2007. The other registered owners would presumably had received their respective notices around that time. No one in his proper frame of mind would want to dispose of his land at a price fixed some 6 years ago when the Government that has acquired the said Land would be compensating at the current market value at date of the acquisition. The event of acquisition had radically altered the obligation of the defendants to get the remaining owners to sign a sale and purchase agreement with the plaintiff as purchaser. By the time the plaintiff tendered the balance purchase price in November 2007 to complete the sale and purchase agreement, so to speak, the acquisition was fait accompli! [63] If authority is needed, one may refer to the Court of Appeal case of Lee Seng Hock v Fatimah Bte Zain [1996] 3 MLJ 665 at p 673 - 674 where it was opined as follows: 28 "Visu Sinnadurai in his book on the Law of Contract in Malaysia and Singapore – Cases and Commentary, had this to say when dealing with the doctrine of frustration at p 487: The Act does not define the word 'impossible'. However, it appears that the wording of the section envisages two main instances of frustration – when a contract to do an act becomes: (a) impossible; or (b) unlawful. It is clear that the frustration should be supervening and subsequent to the formation of the contract. Furthermore, it should be some event which the promisor could not prevent, as a 'self- induced frustration' does not discharge a party of his contractual obligation. The applicability of the doctrine was also discussed in the case of Ramli bin Zakaria & Ors v Government of Malaysia [1982] 2 MLJ 257 where at p 262, the Federal Court after referring to a number of English authorities, expressed its views of the doctrine in the following manner: In short, it would appear that where after a contract has been entered into there is a change of circumstances, but the changed circumstances do not render a fundamental or radical change in the obligation originally undertaken to make the performance of the contract something radically different from that originally undertaken, the contract does not become impossible and it is not discharged by frustration. 29 Applying that test, it is clear that the compulsory acquisition that occurred in the instant case took place 14 years after the agreement was executed – an event that could not have been contemplated by the parties. We next ask ourselves whether the acquisition of the land had radically changed the obligation of the respondent to sell the 1/2 share of the land to the appellant. We answer this in the affirmative, as what was agreed and intended by the parties and affirmed by the agreement is a transfer of a 1/2 share of the land from the respondent to the appellant by way of a sale. When the land was compulsorily acquired and compensation awarded, the subject matter of the agreement ceased to exist and performance of the agreement became impossible. For that reason, we consider that the compulsory acquisition of the land had frustrated the agreement so as to discharge both the appellant and the respondent of their obligations under the agreement. That same issue was raised in the Singapore case of Lim Kim Som v Sheriffa Taibah bte Abdul Rahman [1994] 1 SLR 393 and when invoking the doctrine of frustration, LP Thean JA had this to say (at p 409): In our judgment (adopting the words of Lord Radcliffe [in Davis Contractors v Fareham Urban District Council [1956] AC 696 at p 729]) the occurrence of the unexpected event, ie the commencement of the process of compulsory acquisition, had altered fundamentally the 'face of things' and there was such a change in the significance of the obligation that the thing undertaken would, if performed, be a different 30 thing from that contracted for. In our judgment, this case is an appropriate one for the invocation of the doctrine. Likewise, since the subject matter of the agreement before us has been taken away and replaced by way of compensation payable, can the appellant claim such compensation as being due and payable to him? We say 'no' for the very reason that the basis of the appellant's claim is dependent on the agreement, but since we have already ruled that such an agreement is now void under s 57(2) of the Act, the respondent cannot claim any right to such compensation. At most, he is entitled to be refunded the 10% deposit he had paid to the respondent under s 66 of the Act which provides that any person who has received an advantage under an agreement which is later discovered to be void is obliged to return such advantage or compensate for it to the person he received it. It is for this reason that the appellant is entitled to be refunded the 10% deposit he had made to the respondent pursuant to cl 1 of the agreement." (emphasis added) [64] Whilst it is true that there is a clause in the sale and purchase agreement with the defendants that in the event of an acquisition of the said Land by the Government, the plaintiff as purchaser has the option to continue with the purchase and would be entitled to the compensation sum; here we are talking of a compulsory acquisition vis-a-vis the obligation of the defendants to get the remaining registered owners to dispose of their undivided shares in the said Land to the plaintiff. The supervening event of compulsory land acquisition is such that it is now impossible for the remaining registered owners to dispose of that which 31 they no longer had. The compulsory acquisition clause in the sale and purchase agreement between the plaintiff as purchaser and the defendants as vendors reads: "Clause 15 – Compulsory Acquisition The Vendor(s) hereby warrants to the purchasers that he/she/they is/are not aware and has/have not receive any notice of acquisition of the said property or any part thereof on or before the execution of this Agreement, and it is hereby agreed that after the date of this agreement, in the event of acquisition of the whole or any part of the said property by the appropriate authorities before the Completion Date and/or the Extended Completion Date (whichever the case may be) the vendor shall immediately notify the absolute right but is/are not obliged to rescind this agreement whereupon the vendors shall forthwith within thirty (30) days from the notice of rescission refund free from the interest the full Purchase Price or any part thereof paid by the Purchasers or the Purchaser’s Financier (whether to the vendors or the charge) towards the Purchase Price and thereafter this agreement shall be null and void and be of no further effect and neither party hereto shall have any claims against the other save and except for any antecedent breaches. In any event the purchasers agrees to accept the extent and nature of such acquisition the vendors shall immediately notify the acquiring appropriate authority of the purchasers interest in the said property pursuant to this agreement and the purchasers shall subject to the full payment of the purchase price be absolutely entitled to the compensation paid by the acquiring appropriate authority." 32 [65] The ratio of the above case is applicable to the plaintiff's claim for a loss of opportunity to participate in the compensation award of the Land Administrator with respect to the other registered owners for which the defendants failed to honour their obligation in getting them to sign a sale and purchase agreement with the plaintiff. There the appellant/plaintiff was claiming their right to the compensation of the 1/4 of the land owned by the defendant/respondent which was acquired by the Government. It was for the compensation sum less the purchase price. It must not be forgotten that because of the many diverse and disparate registered ownership of the said Land, the plaintiff's intention was to buy the whole piece of Land enblock or not at all. Hence the condition written into the Completion Date in Part 11 (c) of the First Schedule to the Sale and Purchase Agreement as follows: "c) Upon the date for the last registered owner having been executed the sale and purchase agreement to transfer his/her/their respective portion of shares to the Purchaser; ... ... whichever of a), b), c) and d) shall be last to occur." (emphasis added) [66] With the tendering of the 4 cheques for the balance purchase price, which cheques were dated 20 and 23 November 2007 after it was clear that compulsory acquisition had been confirmed, it had become impossible for the defendants to fulfill their last obligation in getting all the rest of the registered owners to execute the sale and purchase agreement, much less to get the last registered owner to sign. To insist on performance by the defendants would be not unlike having a large 33 millstone hung around their neck and being thrown into the sea and yet expecting them to swim to shore! [67] The plaintiff cannot change the conditions mid-way through the agreement and unilaterally impose its own terms crafted strategically in its favour knowing full well that it was humanly impossible for the defendants to fulfill such a condition. The plaintiff had no good reason to fast-forward as it were the completion of the agreement other than to receive the compensation award for the whole of the said Land. The face and focus of the agreement has changed with the compulsory acquisition of the whole of the said Land; its tenor and thrust has been transformed radically such that the defendants are discharged from their obligation to get the rest of the registered owners to execute the sale and purchase agreement. The act of acquisition by the Government was clearly beyond their control and once set in motion, there was no way to get the remaining registered owners to sign the sale and purchase agreement. Once acquisition was completed, there was no longer the subject matter capable of disposal. Pronouncement [68] For all the reasons given above, I had dismissed the plaintiff's claim against D13 and D19 with costs of RM30,000.00 and allocatur is to be paid before extraction of the order of costs. The sums still held in the defendants' solicitors account are to be released henceforth to the defendants. [69] Having held that the sale and purchase agreements are void, the power of attorney granted by the defendants to the plaintiff with respect 34 to each of their undivided shares in the said Land, is also void and of no effect. Dated: 19 February 2016. - signed - (Y.A. TUAN LEE SWEE SENG) JUDGE HIGH COURT KUALA LUMPUR For the Plaintiff: Mr Francis Goh Messrs Francis Goh & Co For the 13th and 19th Defendants: En Baharuddin Ali and En Mohd Hafiz Tetuan Norfairozali & Co Date of Decision: 26 January 2016.

Tika 2.6.0

22NCVC-483-09/2015

PLAINTIF ARCHIPELAGO INSURANCE LIMITED DEFENDAN EAGLEXPRESS AIR CHARTER SDN BHD

15/02/2016

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 22NCVC-483-09-2015 Archipelago Sdn Bhd Lwn Eaglexpress Sdn Bhd 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA WRIT NO : 22NCVC-483-09/2015 BETWEEN ARCHIPELAGO INSURANCE LIMITED .... PLAINTIFF AND EAGLEXPRESS AIR CHARTER SDN BHD .... DEFENDANT GROUND OF JUDGMENT A. BACKGROUND FACTS [1] The Plaintiff’s claim is a simple and straightforward claim for debts overdue. By the Plaintiff’s documentary evidence, it is crystal clear that such debts were overdue and this fact is even admitted by the Defendant themselves. 2    [2] Given the same straightforward nature of this claim, the Plaintiff has applied for the case to be summarily disposed under Order 14 of the Rules of Court 2012 (“Rules”). [3] Archipelago Insurance Limited (“Plaintiff”) is an insurance company registered under the Labuan Financial Services Authority Act 1996 with offices in the Federal Territories of Labuan as well as Kuala Lumpur. [4] Eaglexpress Air Charter Sdn Bhd (“Defendant”) is a Malaysian Private Limited Company incorporated under the Companies Act 1965. [5] The Plaintiff has from 2013 up to the time of this dispute, issued 25 aviation insurance coverage policies (“contracts”) in which the Defendant, upon fair negotiation of the premium prices, and terms of coverage, has at all material times accepted the contracts with no spec of protest whatsoever. [6] At all material times, the Plaintiff has issued debit notes and contracts which includes a payment schedule in each and every single contract issued, received, and accepted by the Defendant. 3    [7] The Defendant had defaulted to pay the premiums as had been agreed. Upon these various defaults by the Defendant, the Plaintiff out of its own good will, has adjusted the overdue premiums and given the Defendant a discount in which the Plaintiff and Defendant has entered into a settlement agreement on 30.3.2015. It must be noted that the Defendant again, has never protested or raised any issues with regards with the insurance charges and prices set by the Plaintiff. [8] The salient terms of the settlement agreement are that the Defendant agrees to pay the outstanding amount of USD1,880,052.78 in 7 instalments for overdue premiums between 1.10.2013 to 1.4.2015 and that if so the Defendant defaults any of the scheduled instalments, the unpaid balance would immediately become due and payable. In total acknowledgment and admission of the debt and the legally binding nature of the settlement agreement, the Defendant had proceeded to pay 2 out of 7 instalments in conformity of the settlement agreement. [9] When the Defendant defaulted to pay the remaining balance, the Plaintiff has now sought to enforce the settlement agreement. 4    [10] However, despite the Defendant’s numerous admissions and acknowledgments of the debts, the Defendant is still disputing the Plaintiff’s claim and resisted the Order 14 application by contending that there are triable issues for which this Court should not allowed summary judgment to be entered against the Defendant. B. NO TRIABLE ISSUES AGAINST THE CLAIM AND APPLICATION (i) The Defendant had twice admitted and acknowledged its indebtedness and operability of the contracts [11] It is trite law that a party should not be allowed to approbate and reprobate its stance. Similarly the Defendant cannot be allowed to admit the debt, and also deny the debt on the same breath. This Court finds guidance in the Court of Appeal decision in the case of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16 regarding the Defendant’s conduct of blowing hot and cold with its stance: 5    “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another : he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” (See also Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331) [12] The clear undisputed facts of the present case are that notwithstanding the Defendant’s abrupt and last-minute protest against the debts, the Defendant prior to its latent protest has twice admitted to the operability of the contracts as well as the premiums which falls due for payment by the Defendant. [13] Firstly, the Defendant has admitted and acknowledged the contracts and the debts due at all material times when the 6    contracts were issued and incepted by the Plaintiff, received and accepted by the Defendant without a single protest. There was never any issue raised about overcharges or prices. The Defendant has unconditionally accepted and admitted the debts and contracts as well as the coverage out of its own volition. There is a total absence of protest by the Defendant when the numerous debit notes and policies were received by the Defendant. [14] Secondly, the Defendant has all this while enjoyed the coverage furnished by the Plaintiff. And now, after enjoying the benefits of the contracts, the Defendant tries to avoid the payments due arising from these contracts. [15] Thirdly, the Defendant has for the second time around admitted and acknowledged the premiums due and the operability of the contracts when they agreed to the terms of the settlement agreement. The Defendant has unequivocally agreed to its indebtedness to the Plaintiff in agreeing to pay the overdue sum of USD1,880,052.78. In fact, in further admission and acknowledgment of its indebtedness, the Defendant has proceeded to pay 2 out of 7 instalments in conformity of the settlement agreement. 7    [16] Thus, this Court has no hesitation to dismiss the Defendant’s contention that the Plaintiff has failed to prove that there are binding contracts between the Plaintiff and the Defendant. This is sheer absurdity. If indeed there were no any legally binding contracts between the parties, the Defendant would have not admitted the debts and overdue of premiums. It is well within the knowledge and intent of the parties, especially the Defendant that the policies are binding as contracts. The Defendant has never protested to the debit notes and policies. The Defendant has admitted to the accrual of the premiums and binding nature of contracts twice. (ii) The Defendant has twice admitted to the price and charges of the premiums: There is no overcharge by the Plaintiff [17] The Defendant in its attempt to escape from its liability to pay has also raised a defence that the Plaintiff has overcharged the Defendant with respect to the payable premiums on which some portions of the premiums had already been paid twice, admitted and acknowledged. In support of the overcharging contention, the Defendant tried to rely on numerous documents. Firstly, the 8    Defendant sought to prove that the Plaintiff has charged coverage for protection which allegedly has already been obtained by the Defendant with other insurers. In proving this contention, the Defendant refers to two third party agreements, being ACMI agreements with Saudi Arabian Airlines as well as National Air Services Company (“NAS holding”) [18] However, it is easy to see that the Plaintiff is not even a party to these third party agreements. The Plaintiff is not a party, and not even privy to even be aware of the existence of these third party agreements. The Defendant has not proven that such fact would be within the Plaintiff’s knowledge. [19] In the Defendant’s attempt to prove the Plaintiff’s knowledge of these third party agreements, the Defendant sought to refer to a Contract Endorsement dated 1.1.2015 by its reinsurance broker, Dashwood Brewer and Phipps (“Dashwood”) which was issued only 26 months, which was MORE THAN TWO YEARS after the contracts with the Plaintiff were incepted. 9    [20] In this instance, it is more probable than not that, at all material times during the insurance coverage, the third party agreements were never within the Plaintiff’s knowledge. [21] The Defendant has also referred to the rates which were charged by the Defendant’s new reinsurer Willis Limited, which were supposedly much lower premiums compared to the Plaintiff’s rates. [22] This Court has no hesitation to find the irrelevance of these rates charged by Willis Limited. Whatever price of the premiums, it has already been discussed, deliberated, and agreed upon years ago when the contracts with the Plaintiff were incepted. Furthermore, rates charged are totally within the domain of the parties’ freedom to contract. It is within parties’ freedom to agree to terms. Merely proving that the Defendant was able to strike a more lucrative deal with another reinsurer does not prove the unfairness or an overcharge of the Plaintiff’s rates. If that be the case, then the business structure will break as parties are allowed to abandon their contracts and their dues every single time they were able to find a more favourable contract than what they have initially agreed to. 10    [23] It is more obvious to note that the Defendant itself has expressed to Dashwood, that the Plaintiff’s contracts are more economical option vide the Defendant’s own email to Dashwood dated 20.8.2013. The Defendant had written that it intends to change “the local cedant company from Etiqa to Archipelago Insurance Limited as this is more economical for Eagle to do so”. Clearly, here the Defendant has deliberated upon the premium prices quoted by the Plaintiff for its policies. And with this conscious deliberation, it is the Defendant’s own finding and admission that the Plaintiff’s premiums are fair and economical. [24] Parties have ample opportunity to exercise their freedom to contract. This Court cannot override a contract which has been properly agreed with voluntarily and consensually, merely on the grounds that a party alleges unfair prices and overcharges which for years they have expressly agreed to and admitted to without a single protest. [25] All terms especially on the premium pricing have been discussed twice at this very moment. What more could an insurance subscriber ever ask for? The premium price has been negotiated first, when the Defendant subscribed to the numerous policies 11    since 2013, without any protests. Then upon default of a majority of the premiums due, the Defendant has negotiated and agreed for the 2nd time around, the premium prices without a spec of protest, when the Settlement Agreement was entered into. [26] Clearly this ‘new discovery’ of overcharges is an afterthought by the Defendant to avoid liability to pay. [27] It must be reiterated that the Defendant had all the opportunity to query and dispute the insurance coverage by the Plaintiff if indeed the Defendant genuinely has no need of the Plaintiff’s coverage. Instead the Defendant had enjoyed the coverage and agreed to the premium twice. Firstly, at the inception of the policies, and for the 2nd time when the Defendant agreed to the settlement agreement and was two instalments deep in conformity with the legally binding settlement agreement. [28] Furthermore, whatever excess charges (if any) genuinely within the Plaintiff’s claims have already been resolved when the total premiums due were already adjusted, discounted, and agreed upon by both the Plaintiff and the Defendant in agreeing to the final and total amount due under the settlement agreement. 12    [29] Here, the issue of the excess charges has already been laid to rest. It has been resolved and agreed to have been resolved by the Defendant. Therefore, on the same principle highlighted above, the Defendant cannot now be allowed to go against its own admission and acknowledgment. (iii) The Defendant was not under undue influence in making the two payments under the settlement agreement [30] The Defendant has also contended that it has acceded to the settlement agreement only because it was threatened by the Plaintiff that the contracts and coverage would be cancelled if the payments were not made. [31] This Court must emphasise that the cancellation and recalling of all remainder payment is well within the rights of the Plaintiff as creditor and insurer. It is absurd that the Defendant purports that the Plaintiff should continue to furnish 100% coverage even when the Defendant has not fulfilled its end of the bargain to pay for the Plaintiff’s coverage. No contracting party could expect to be left unscathed when he has failed to honour his part in the contract. 13    Whatever ‘pressure’ or whatever ‘threat’ felt by the Defendant is borne out of its own conduct in breaching the contracts with the Plaintiff. The ‘threat’ felt is actually the Defendant’s own self- imposed fear knowing that it has to suffer the adverse consequences in failing to pay its dues which has for time and time again been admitted as well as acknowledged by the Defendant itself. (iv) the issue on the broking slips is a non-issue [32] There is no necessity for this Court to deliberate on this minute issue considering the mass of admission and acknowledgement of the premium rates and indebtedness by the Defendant. The Defendant contends that the Plaintiff has failed to abide by aviation industry standards to prove its charges in failing to furnish to the Defendant, broking slips for its contracts. [33] The issue of proof of the debts and rates is already academic at this juncture. The Defendant has for numerous times admitted and acknowledged the indebtedness and the amount of indebtedness that it is verily clear that the Defendant has agreed to the amount outstanding as stated by the Plaintiff. The amount and proof of the 14    amount of indebtedness were never an issue to begin with. It is already patently clear that the Plaintiff has clearly proven its claim. [34] Nonetheless, the proper body in which the Defendant ought to request for the broking slip is its own broker and not the Plaintiff. The Plaintiff is an insurance company and not a broker. C. COURT’S DECISION [35] The trite requisites of an application under Order 14 of the Rules has again been reiterated in the Federal Court’s decision in the case of Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544: “In an application under O.14, the burden is on the Plaintiff to establish the following conditions: that the Defendant must have entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r.2 of O.14 in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim… Once these conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite” 15    [36] With the foregoing deliberations and findings, it is this Court’s findings that the Plaintiff has successfully fulfilled all of the requisites of a summary judgment and proved that the Defendant indeed has no defence at all against the Plaintiff’s claim. The Defendant who has time and time again admitted its indebtedness to the Plaintiff has ultimately failed to prove any feasible defence or triable issues against the Plaintiff’s claim and application under Order 14 of the Rules. [37] Thus, this Court hereby grants order-in-terms to the Plaintiff’s application under Order 14 and enters summary judgment against the Defendant. The Defendant is hereby ordered to pay costs of RM5,000.00 to the Plaintiff. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 15th February of 2016 16    For the Plaintiff - Messrs Murali B. Pillai & Associates Cik Chrishantini For the Defendant - Messrs Surend Mokhzani & Partners Cik Subitra Dali

Tika 2.6.0

22NCVC-553-10/2015

PLAINTIF REKA SETIA PLAYGROUND SDN BHD (No. Syarikat: 528748-P) DEFENDAN SIOW WEE HONG (No. K/P: 820824-06-5127) (Berniaga sebagai AZ PLAYGROUND BUILDER) (No. Pendaftaran: 002225376-K)LAIN-LAIN-

03/02/2016

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 22NCVC-553-10-2015 Reka Setia Playground Sdn Bhd Lwn Siow Wee Hong 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO: 22NCVC-553-10/2015 BETWEEN REKA SETIA PLAYGROUND SDN. BHD. …PLAINTIFF (No. Syarikat : 528748-P) AND SIOW WEE HONG (NO. K/P: 820824-06-5127) (Berniaga sebagai AZ PLAYGROUND BUILDER) (No. Pendaftaran: 002225376-K) …DEFENDANT GROUNDS OF JUDGMENT (Judgment in default of defence – Order 19 rule 7 Rules of Court 2012) A. BACKGROUND FACTS [1] The present case is a very straightforward case of copyright breaches by an employee using the trade secrets and information of his employer and using the same trade secrets and information 2    to produce, promote, advertise, and sell the same exact products of his employer, under his own brand name. [2] The Defendant has failed to file any defence or counter-claim in compliance with the Court’s direction. [3] It must be noted here that the crux of the Defendant’s defence is not so much of disputing the similarities between the Plaintiff’s works and the Defendant’s plagiarism but on the other hand, the Defendant alleges that the Plaintiff from the outset has no valid copyright claims over its works. [4] The Plaintiff has filed an application vide Enclosure 4 to enter a judgment in default of defence (JID) under Order 19 rule 7 of the Rules of Court 2012 (“the Rules”). Even though on the surface, this case can be disposed of because of this technicality namely; no defence is filed by the Defendant. Nevertheless, this Court will proceed to discuss the merits of the Defendant’s defence and elaborate on the Defendant’s contention. It must also be noted that the Defendant’s total lack of defence is relevant to the present case as the Defendant also applied for an extension of time to file his defence and counterclaim under Order 3 rule 5 of the Rules 3    of Court 2012. The gist of the Defendant’s defence is that the Defendant ought to be given an opportunity to dispute the Plaintiff’s claim in a full trial on the account that the Defendant has good defence on merits. [5] It must also be noted that the Defendant had failed to file its defence and counterclaim in time and had also filed its affidavit in reply to the Plaintiff’s application at least one month out of time. [6] The Plaintiff, Reka Setia Playground Sdn Bhd (“Reka”) is a company incorporated in Malaysia whose principal business is designing, developing, manufacturing and selling playground equipment since the year 2000. [7] The Defendant, Siow Mee Hong was once Reka’s own employee, who the Plaintiff has hired since 2008. The Defendant had tendered his resignation from Reka on 2.7.2013. [8] The salient employment terms between Reka and the Defendant were that; 4    i. the Defendant should not carry out any other business or employment other than the employment with the Plaintiff during the Defendant’s tenure with the Plaintiff; ii. the Defendant should not conduct itself in conflict with Reka’s interest or in a manner which jeopardises Reka’s interest; iii. the Defendant is barred from disclosing any of Reka’s information inclusive of the Reka’s drawing, quotation, price, etc to any other people. [9] The resignation of the Defendant is not a mere coincidence. The Defendant was in clear breach of the employment contract, and Reka’s copyrights. The Defendant has wrongfully used, plagiarised and replicated Reka’s copyrighted designs of which are Reka’s trade secrets. As a matter of fact, the Defendant during his tenure with Reka has set up another sole proprietorship business under the alias of AZ Playground Builder, a company who also sells the same products as Reka. In fact, the Defendant’s replicas are exactly replicas designed by Reka and these replicas were advertised on the internet on the Defendant’s website. 5    [10] This Court has in fact compared and contrasted the Defendant’s webpage images with Reka’s copyrighted design sheets. The Defendant had in fact incorporated the exact same image from Reka’s designs sheets into his webpage. The copy and paste works by the Defendant were either colored differently or were ‘mirrored’ (twisted horizontally). Not only that, the Defendant has even use the same names in which Reka has affixed on its designs. All of the Defendant’s replicas were named after the design names set by the Plaintiff. All of these infringements have been itemized and categorized by Reka vide its affidavits. [11] The Plaintiff has filed its writ and statement of claim on 21.10.2015. The Defendant had entered his appearance on 17.11.2015. The Defendant was directed by the Court to file his defence or counterclaim (if any) by 4.12.2015. By 9.12.2015 when Reka filed Enclosure 4, the Defendant still fails to file any defence or counterclaim. B. NO MERITORIOUS DEFENCE AGAINST THE PLAINTIFF’S CLAIMS 6    [12] The underlying rules and principle of a JID of defence is similar to an application to set aside a JID. Upon this Court’s discretion in determining the propriety of the JID of defence, this Court may consider the Defendant’s contention, ascertaining whether or not the Defendant indeed has meritorious defence against the Plaintiff’s claim. This principle is echoed in the case of Microsoft Corporation v PC House (IMBI) Sdn Bhd [1998] 2 MLRH 863: “Clearly the principles upon which a court need to apply in an application for judgment in default of defence are much the same as those relating to setting aside of a default judgment. This was what Lord Denning MR said in Wallersteiner: … A judge in chambers has a discretion which he will exercise on the same lines as he will set aside a judgment in default. He will require the party to show that he has a good defence on the merits. This is a time-hallowed phrase going back for a hundred years…” [13] This Court shall proceed to examine the merits of the Defendant’s defence. 7    [14] The Plaintiff’s case rests squarely on its copyrights over its numerous designs and works in which have been wrongfully replicated by the Defendant. Reka’s works and designs consist of arts and images of drawn designs as well as graphics of playground equipment. These works are intended to be crafted, translating the same artistic and crafting values of the designs into actual equipment. Since the works consist of designs for playground equipment, the designs contain motif, artistic value and craftsmanship that would suit, excite, and intrigue children. The Plaintiff’s drawings themselves are copyrighted artistic works even without any technical or engineering specifications. These works and designs fall squarely in the definition of Artistic Works under Section 3 of the Copyright Act 1987 which reads: “… “Artistic Work” means- (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; (b) a work of architecture being a building or a model for a building, or; (c) a work of artistic craftsmanship…” 8    [15] Thus, Reka’s works and designs are copyright protected, and Reka holds propriety rights over the same under Section 7(1) of the Copyright Act 1987. [16] Reka has categorically itemised the mass of copyright infringements of the Defendant in its affidavits. This Court has closely scrutinised and examined all accounts of copyright infringements alleged, and finds that indeed in varying degrees, the Defendant has abused and replicated the copyrighted designs and works of Reka. TOTAL PLAGIARISM AND REPLICATION OF REKA’S DESIGNS IN DEFENDANT’S WEBSITE – Here the Defendant has simply wrongfully copy and pasted Reka’s works into the Defendant’s website Reka’s designs Defendant’s plagiarism MULTI SEESAW MULTI SEESAW 4 SEATER CUSTOM SWING 2 SEATER L SWING 2 SEATER VOULT BAR VOULT BAR SURF BOARD SURF BOARD TOTAL PLAGIARISM AND REPLICATION OF REKA’S DESIGNS IN DEFENDANT’S WEBSITE WITH IMAGE ‘MIRRORING’ – Here the Defendant has simply wrongfully copy and pasted Reka’s works into the Defendant’s website but 9    with image ‘mirroring’ (horizontal twisting) to cloak the infringement Reka’s designs Defendant’s plagiarism VERTICAL LADDER VERTICAL LADDER TOTAL PLAGIARISM AND REPLICATION OF REKA’S DESIGNS WITH COLOR VARIATIONS– Here the Defendant has simply wrongfully copy and pasted Reka’s works into the Defendant’s website but with color variations to cloak the infringement. There are no material differences. The designs are identical, but only with different colorations. Reka’s designs Defendant’s plagiarism ARCH SWING 2 SEATER BELT SEAT ARCH SWING 2 SEATER BELT DOUBLE SEATED CHEST PRESS STATION DOUBLE CHEST PRESS STATION AIR WALKER AIR WALKER WEIGHT LIFT WEIGHT LIFT ELEPHANT SPRING RIDER ELEPHANT SPRING RIDER SEAHORSE SPRING RIDER SEAHOUSER SPRING RIDER CHICKEN SPRING RIDER CHICKEN SPRING RIDER REKA - RS 1098a AZ-02-0005 REKA – RS1184a AZ-02-0007 REKA – RS1171a AZ-01-0019 RIA 1084b AZ-01-0018 10    TOTAL PLAGIARISM AND REPLICATION OF REKA’S DESIGNS WITH COLOR VARIATIONS AND IMAGE ‘MIRRORING’– Here the Defendant has simply wrongfully copy and pasted Reka’s works into the Defendant’s website but with color variations and image mirroring to cloak the infringement Reka’s designs Defendant’s plagiarism TRIPLE TWISTER TRIPLE TWISTER TAIJI WHEEL TAIJI WHEEL [17] It is overwhelmingly that the Defendant has plagiarised, replicated and breached Reka’s numerous copyrights based on the table above and the exhibits adduced by Reka. There are at least 18 counts of plagiarism and copyright infringements based on the tables above alone. The infringement is blatantly clear to the extent that the Defendant did not even bother to use or change a large majority of the names of Reka’s copyrighted works and designs. The Defendant has outrightly used the same names of Reka’s designs and works apart from using the exact same drawings of Reka’s designs and works. The Defendant’s Art Search instead proves the Defendant’s own insidious plagiarism and copyright infringements 11    [18] As mentioned earlier, the Defendant’s primary defence is that Reka has no copyright claims over the designs and works. The Defendant did not deny the plagiarism, copying and pasting of Reka’s designs and works. [19] The Defendant in his attempt to prove that Reka has no valid copyright claims over the works (the Defendant has plagiarised, copies and pasted), has referred to purportedly a Prior Art Searches Report dated 18.12.2015 (“Search Report”). [20] This Court must mention here that the said Search Report has utilised the Google Search Results as a gauge or yard stick to determine whether or not there are contradicting copyright claims. [21] Firstly, this Court opines that Google cannot be a credible copyright database. Google is merely an internet search engine and cannot be a determinant of any copyright claims or contradictions. Therefore, this Court shall not take into account any portions of the Search Report pertaining to Google Search Results. 12    [22] Secondly, the majority contents of the Search Report actually proves that nothing identical to Reka’s copyrighted works and designs has ever been designed, drawn, or ever produced. The two columns of Industrial Design Searches and Patent Searches have come up negative. A digest of the Search Report would simply be that, the majority of the search reports would result in the following findings: i. Industrial Design Search - “Nothing identical but similar” ii. Industrial Design Search – “No equivalent industrial design/industrial design application could be located” iii. Patent Search – “Nothing identical but similar” iv. Patent Search – “No equivalent patent/patent application could be located” [23] Thirdly, in fact the search report works in favour of the Plaintiff and not the Defendant. It actually proves that Reka’s designs are altogether unique with no other equivalent designs and/or patents. The search results go along the lines of nothing identical or no equivalent patent or industrial designs. 13    [24] Fourthly, in its affidavit, Reka has listed at least 24 counts of copyright infringements, however the Search Result only addresses a total of 17 designs and works. These 17 searches prove Reka’s copyrights. Here, the Defendant did not even bother to address all the 24 of Reka’s allegations of copyright infringements. [25] It is trite principle in intellectual property law that registration is never any requisite for a proprietor to prove or claim copyrights over his works or designs. [26] The Defendant’s contention on Reka’s registration of copyrights is in fact a non-starter and a mere contention which is nothing close to a meritorious defence. Relating to this search report also, this Court must highlight two pertinent facts: i. the Defendant had only waited after this case was commenced to make this search. At all material times when the Defendant was setting up the business, the Defendant has no interest at all to abide by any copyrights, especially the copyrights of the Plaintiff. 14    ii. if the Defendant is innocent and honest in ‘using’ Reka’s copyrighted designs, the Defendant should/would have conducted this search even before using the Reka’s drawings, works and designs in his business. iii. in the Defendant’s application for extension of time to file his defence, the Defendant’s excuse was that he needed time to obtain the Search Report. Based on the facts i. and ii., the excuse is obviously is an after-thought. [27] Thus, it is clear here that Reka indeed has valid copyright claims over the designs and works which were infringed, plagiarised and replicated by the Defendant. The Search Report is clearly, merely an after-thought to deny and delay the inevitable ends of justice for the Plaintiff. The Defendant cannot now dispute the abuse of Reka’s trade secrets and information [28] In his affidavit, the Defendant had also claimed that he had not accessed or abused the Plaintiff’s confidential information and industrial drawings. The Plaintiff replies that all of these 15    confidential information and industrial drawings (inclusive of the Reka’s copyrighted works and designs) are all kept in a centralised shared file server which is accessible to all of Reka’s staff. [29] On this contention, it is this Court’s considered view that the Defendant being an employee to Reka who had access to Reka’s confidential information and industrial designs, was able to copy and paste Reka’s copyrighted works and designs into his website. [30] Based on aforementioned reasons and findings, it is this Court’s decision that the Defendant has ultimately failed to prove any meritorious defence. The Plaintiff’s application in Enclosure 4 is therefore allowed with costs of RM8000.00. In view of this Court’s decision allowing the Plaintiff’s application, the Defendant’s application in Enclosure 6 (for extension of time to file his defence and counter-claim) is hereby struck out. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 3rd February 2016 16    For the Plaintiff - Tetuan Singara Velan & Associates Miss K. Parameswari For the Defendant - Tetuan Shu Yin, Teh & Taing Mr Johan Taing Chee Fae

Tika 2.6.0

12A-73-09/2015

PERAYU 1. RS NEWS DOT COM (No. Pendaftaran Perniagaan: SA0037193-D) 2. PRECIOUS ESSENCE SDN BHD (No. Syarikat: 877222-X) RESPONDEN 1. BEN FOURTY FIVE ENTERPRISE (No. Pendaftaran Perniagaan: SA0205710-A) 2. MOHAMAD SAFUAN BIN ABDUL RAHMAN (No. K/P: 850110-11-5521)

05/01/2016

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0abbe12c-f398-4504-a28d-91e046468046&Inline=true

Microsoft Word - 12A-73-09-2015 RS News Dot Com Lwn Ben Fourty Five Enterprise 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO : 12A-73-09/2015 ANTARA 1. RS NEWS DOT COM (No Pendaftaran Perniagaan: SA0037193-D) ….PERAYU 2. PRECIOUS ESSENCE SDN BHD (No.Syarikat: 877222-X) DAN 1. BEN FOURTY FIVE ENTERPRISE (No Pendaftaran Perniagaan: SA0205710-A) 2. MOHAMAD SAFUAN BIN ABDUL RAHMAN (No K/P : 850110-11-5521) .…RESPONDEN-RESPONDEN ALASAN PENGHAKIMAN (Rayuan terhadap Keputusan Hakim Mahkamah Sesyen) [1] Ini merupakan rayuan yang telah difailkan oleh Perayu (Defendan Pertama) terhadap keputusan Hakim Mahkamah Sesyen (HMS) yang menolak permohonan Defendan Pertama untuk mengenepikan Penghakiman Ingkar Kehadiran bertarikh 1.9.2015 dan Penghakiman Ingkar Terpinda (PI) bertarikh 26.12.2014 di 2    bawah Aturan 42 Kaedah 13 Kaedah-Kaedah Mahkamah 2012. PI adalah seperti di muka surat 85 Rekod Rayuan. Latar Belakang Kes [2] Latar belakang kes yang membawa kepada pemfailan rayuan adalah seperti berikut: 2.1 Plaintif Pertama (Ben Fourty Five Enterprise) adalah satu perniagaan yang mempunyai alamat utama perniagaan di No. 2, Taman Pelabuhan, Jalan Melikai 52, 42000, Pelabuhan Kelang, Selangor Darul Ehsan. 2.2 Plaintif Kedua (Mohamad Safuan bin Abdul Rahman) adalah seorang individu yang mempunyai alamat kediaman di No. 2, Taman Pelabuhan, Jalan Melikai 52, 42000, Pelabuhan Kelang, Selangor Darul Ehsan. 2.3 Defendan Pertama (RS News Dot Com) adalah satu perniagaan yang mempunyai alamat utama perniagaan di B12, Bukit Tinggi, Giant Klang, 421000 Klang, Selangor Darul Ehsan. 3    2.4 Defendan Kedua (Precious Essence Sdn Bhd) sebuah syarikat persendirian yang ditubuhkan di Malaysia dan mempunyai alamat berdaftar di No. 37-1, Jalan Kuchai Maju 7, Off Jalan Kuchai Lama, 58200 Kuala Lumpur. 2.5 Pada sekitar bulan November 2011, Defendan Kedua telah merepresentasikan kepada Plaintif Kedua bahawa Defendan Kedua menjalankan perniagaan menjual buku-buku, alatan tulis dan barang runcit di sebuah kedai (outlet) yang beralamat di B12, Bukit Tinggi, Giant Klang, 41200 Klang, Selangor Darul Ehsan. 2.6 Defendan Kedua juga merepresentasikan bahawa perniagaan tersebut adalah satu perniagaan franchais yang dimiliki oleh Defendan Pertama. 2.7 Berdasarkan representasi tersebut, Plaintif Kedua telah memasuki perjanjian bertarikh 1.12.2011 (“Perjanjian Pertama”) dengan Defendan Pertama untuk memperoleh perniagaan Plaintif Pertama dengan hak-hak sebagai seorang pemegang franchais. 4    2.8 Pada 1.12.2011 juga, Plaintif Pertama telah memasuki perjanjian dengan Defendan Kedua (“Perjanjian Kedua”). 2.9 Sekitar 13.5.2012, Plaintif Kedua telah mendapat tahu daripada Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan bahawa Defendan Pertama bukannya pemegang suatu franchais. 2.10 Plaintif Pertama telah mendakwa bahawa representasi Defendan Pertama tersebutlah yang telah menyebabkan Plaintif Pertama memasuki Perjanjian Kedua di mana Plaintif Pertama telah terkhilaf mengenai pemegang hak franchais yang menjadi pokok Perjanjian Kedua. 2.11 Plaintif-Plaintif juga mendakwa bahawa Defendan Pertama dan Defendan Kedua (kedua-dua Defendan) telah berkonspirasi untuk mencederakan ekonomi Plaintif-Plaintif. 2.12 Plaintif-Plaintif telah mendakwa atas representasi dan perbuatan konspirasi kedua-dua Defendan tersebut, Plaintif Pertama dan Plaintif Kedua telah mengalami kerugian akibat perbelanjaan bagi melaksanakan franchais tersebut. 5    2.13 Suatu Writ Saman dan Pernyataan Tuntutan telah dikeluarkan oleh Plaintif-Plaintif terhadap kedua-dua Defendan pada 28.11.2013 dan Plainti-Plaintif menuntut antara lain relif-relif berikut: (a) ganti rugi sebanyak RM268,586.54; (b) ganti rugi teruk; (c) ganti rugi teladan; dan (d) faedah pada kadar 5% setahun ke atas jumlah penghakiman dikira dari tarikh penghakiman sehingga tarikh pembayaran sepenuhnya. 2.14 Writ Saman dan Pernyataan Tuntutan telah diserah secara penyampaian ganti kerana penyampaian kediri ke alamat terakhir yang diketahui oleh Plaintif-Plaintif tidak berjaya dilaksanakan terhadap Defendan-Defendan. 2.15 Kedua-dua Defendan telah gagal memfailkan Memorandum Kehadiran mereka. 2.16 Plaintif-Plaintif kemudiannya telah memfailkan Penghakiman Ingkar Kehadiran (Penghakiman Ingkar) terhadap Defendan- Defendan pada 19 Disember 2013. 6    2.17 Selepas Plaintif-Plaintif memperolehi Penghakiman Ingkar (PI) terhadap Defendan Pertama pada 19 Disember 2013, Plaintif- Plaintif telah memfailkan satu permohonan untuk meminda PI untuk memasukkan nama pengarah Perayu bernama Rajaduray a/l Karuppiah. 2.18 Pada 26 September 2014, permohonan Plaintif-Plaintif untuk meminda PI bagi memasukkan nama Rajaduray a/l Karuppiah (Rajaduray) telah dibenarkan oleh Mahkamah. 2.19 Bagi menguatkuasakan penghakiman yang telah diperolehi mereka, Plaintif-Plaintif telah kemudiannya memulakan prosiding bankrapsi terhadap Rajaduray dengan mengeluarkan satu Notis Kebankrapan terhadapnya. 2.20 Rajaduray telah mendakwa beliau hanya mengetahui tentang Notis Kebankrapan tersebut daripada penyewa yang menyewa di premis Defendan Pertama di No.27, Jalan 20, Taman Mujur, 41200 Klang, Selangor Darul Ehsan. 7    2.21 Lantaran itu, pada 23.6.2015 Defendan Pertama telah memfailkan permohonan untuk mengenepikan Penghakiman Ingkar yang diperolehi oleh Plaintif-Plaintif. 2.22 Permohonan Defendan Pertama telah ditolak oleh HMS pada 1.9.2015. 2.23 Tidak puas hati atas keputusan tersebut, Defendan Pertama telah memfailkan Notis Rayuan merayu terhadap keputusan HMS tersebut. [3] Defendan Pertama telah membangkitkan alasan-alasan berikut bagi menyokong permohonannya: (a) serahan Writ Saman dan Pernyataan Tuntutan adalah tidak sempurna (b) Defendan Pertama mempunyai pembelaan bermerit (c) Permohonan pindaan adalah salah di sisi undang- undang 8    (d) Serahan permohonan pindaan kepada Defendan Pertama adalah tidak sempurna [4] Sebelum mempertimbangkan alasan-alasan yang dibangkit oleh Defendan Pertama , molek sekiranya Mahkamah ini menyentuh dengan ringkas prinsip undang-undang berhubung dengan permohonan-permohonan untuk mengenepikan penghakiman Ingkar. [5] Undang-undang adalah jelas bahawa bagi mengenepikan penghakiman ingkar yang diperolehi oleh Plaintif-Plaintif atas ketidakhadiran Defendan, Mahkamah perlu melihat samada penghakiman ingkar tersebut adalah suatu penghakiman yang teratur (regular judgment) ataupun tidak teratur (irregular judgment). Undang-undang jelas dan jitu bahawa penghakiman ingkar yang tidak teratur boleh diketepikan ex debitio justitae, namun bagi penghakiman ingkar yang teratur ianya hanya boleh diketepikan sekiranya Defendan boleh menunjukkan bahawa wujudnya pembelaan yang bermerit atas tindakan Plaintif-Plaintif terhadapnya. 9    [6] Prinsip ini telah diputuskan di dalam begitu banyak kes. Memadai kalau Mahkamah ini merujuk kepada kes Ai Yoke Ngan v Chin Teck Kwee [1997] 2 MLJ 565 di mana telah diputuskan oleh Mahkamah Persekutuan antara lain seperti berikut; “The principle of setting aside a default judgment under O 13 r 8 has been well established and needs no detailed repetition. What is important to observe is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be a sufficient ground by itself for setting it aside. But where the default judgment has been obtained regularly, in order to succeed, the defendant must file an affidavit of merits, ie the defendant must disclose by affidavit evidence that prima facie he has a defence on the merits. Put in another way, the affidavit must disclose that he has an arguable or triable issue on the merits (see Evans v Bartlam [1937] AC 473). The following judgment of Lee Hun Hoe CJ in Fira Development Sdn Bhd v Goldwin Sdn Bhd [1989] 1 MLJ 40 at p 41 is also instructive: Where judgment is entered on the failure of a defendant to take any of the procedural steps laid down under the Rules of the High Court 1980, the court has an absolute discretion to set aside the judgment, if necessary, on terms and allow the case to be heard on the merits. Lord Atkin stated clearly the principles in which the court should act in Evans v Bartlam [1937] AC 473 in these words: … The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure. n the instant case, the learned judge did not consider the judgment to be irregular. The Mallal’s Supreme Court Practice (2nd Ed) (Vol 1) at p 84 explains the position where the judgment is regular thus: 10    The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits; or for some very sufficient reason: Bank Bumiputra Malaysia Bhd v Majlis Amanah Ra’ayat [1979] 1 MLJ 23; Farden v Richter (1889) 23 QBD 124. A defence on the merits means merely raising only an arguable or triable issue, eg contributory negligence in a running down case in White v Weston [1968] 2 QB 647. A judgment in default is not a judgment on the merits: L Oppenheim & Co v Mahomed Haneef [1922] 1 AC 482.” (a) Samada serahan Writ Saman dan Pernyataan Tuntutan adalah tidak sempurna [7] Adalah suatu yang tidak dipertikaikan bahawa Writ Saman dan Penyata Tuntutan di dalam kes ini telah diserahkan ke atas Defendan-Defendan melalui suatu penyampaian ganti apabila penyerahan kediri tidak dapat disempurnakan ke atas Defendan- Defendan. Di dalam menyempurnakan penyampaian ganti tersebut, Plaintif-Plaintif bukan sahaja telah menampal sesalinan Perintah dan writ tersebut di papan notis mahkamah tetapi juga telah melaksanakan suatu pengiklanan. Penyampaian ganti writ melalui pengiklanan bertarikh 12.11.2013 telah disiarkan di suratkhabar New Straits Times pada 29.11.2013 (Eksibit “KS-1”, Afidavit Penyampaian Krishnamoorthi a/l Subramaniam). 11    [8] Peguam Defendan Pertama telah cuba mempertikaikan penyerahan writ yang telah disempurnakan oleh Plaintif-Plaintif dengan telah menghujahkan Plaintif-Plaintif pada percubaan menyampaikan writ dan penyata tuntutan secara kediri telah menyampaikannya di alamat terakhir Defendan Pertama di B12, Bukit Tinggi, Giant Klang, 41200 Klang, Selangor. Alamat terakhir ini telah diperolehi oleh Plaintif-Plaintif dengan membuat carian (“SA-1”) di Suruhanjaya Syarikat Malaysia (SSM) pada pada 10 April 2012. Menurut peguam Defendan Pertama, Writ dan Penyata Tuntutan telah hanya dikeluarkan oleh Plaintif-Plaintif pada 6.9.2013 iaitu selepas lebih kurang lebih setahun. Defendan Pertama telah mendakwa bahawa pada 23.4.2012 Defendan Pertama telah berpindah ke alamat Lot 2-05, 2nd Floor, Show Center Point, 41400 Klang Selangor dan perpindahan alamat telah di tunjukkan dengan mengeksibitkan pencarian alamat SSM (Eksibit “R-A”, Affidavit Jawapan Defendan Pertama). Telah dihujahkan lagi oleh peguam Defendan Pertama bahawa Plaintif- Plaintif sepatutnya menyerahkan Writ dan Penyata Tuntutan di alamat Lot 2-05, 2nd floor, Show Centre Point, 41400 Klang, Selangor dan bukannya di alamat B12, Bukit Tinggi, Giant Klang, 41200 Klang, Selangor. 12    [9] Oleh itu adalah menjadi hujahan peguam Defendan Pertama bahawa alamat terakhir Defendan Pertama adalah Lot 2-05, 2nd Floor, Show Center Point, 41400 Klang Selangor, dan atas alasan ini serahan Writ dan Penyata Tuntutan adalah tidak sempurna. [10] Mahkamah ini berpendapat bahawa dapatan fakta yang dibuat oleh HMS adalah betul bahawa serahan Writ Saman dan Pernyataan Tuntutan adalah sempurna. Pertama, carian SSM yang dibuat oleh Plaintif-Plaintif setakat 10.4.2012 adalah merupakan alamat Defendan Pertama terakhir yang diketahui oleh Plaintif-Plaintif setakat 10.4.2012. HMS adalah betul apabila memutuskan bahawa alamat yang diperolehi oleh Plaintif-Plaintif adalah berdasarkan alamat yang terakhir yang diketahui oleh Plaintif- Plaintif hasil daripada semakan SSM yang dibuatnya pada 10.4.2012. Menurut semakan yang dieksibitkan oleh Defendan Pertama, Defendan Pertama telah berpindah alamat pada 23.4.2012 selepas 12 hari semakan dibuat oleh Plaintif-Plaintif. [11] Bagi Mahkamah ini, di dalam kes ini, tempoh dari tarikh semakan SSM dibuat sehingga pengeluaran writ dan penyata tuntutan di dalam kes ini adalah selama lebih kurang setahun (10.4.2012 sehingga 6.9.2013) tidaklah merupakan tempoh waktu yang tidak 13    lama atau panjang. Di sini Defendan Pertama telah meletakkan beban kepada Plaintif-Plaintif dengan mendakwa Plaintif-Plaintif hanya boleh mengeluarkan Writ dan Penyata Tuntutan dalam jangka masa tertentu selepas membuat semakan mereka ke atas daftar perniagaan SSM. Undang-undang tidak meletakkan beban kepada mana-mana pihak untuk membuat semakan berkali-kali ke atas daftar SSM sebelum pengeluaran Writ dan Penyata Tuntutan dikeluarkan. Di dalam hal ini, Mahkamah ini berpandangan bahawa Plaintif-Plaintif telah melaksanakan sesuatu yang sepatutnya iaitu membuat semakan kepada daftar SSM berkenaan alamat Defendan Pertama dan mendapati alamat terakhir yang tertera pada 10.4.2012 ialah di B12, Bukit Tinggi, Giant Klang, 41200 Klang, Selangor. [12] Mahkamah ini juga bersetuju dengan HMS yang menolak hujahan Defendan Pertama yang mengatakan bahawa Plaintif-Plaintif dikehendaki mencari alamat Defendan Pertama terkini di Jabatan Pendaftaran Negara. Sememangnya tidak ada undang-undang yang meletakkan beban atau suatu tanggungjawab kepada Plaintif- Plaintif untuk mencari alamat terkini, pindaan alamat dan pertukaran alamat Defendan Pertama di Jabatan Pendaftaran Negara. 14    [13] Namun apa pun, di dalam kes ini, penyerahan Writ Saman dan Penyata Tuntutan ke atas Defendan-Defendan telahpun dilaksanakan penyampaian ganti di mana salinan perintah untuk penyampaian ganti dan salinan Writ Saman dan Penyata Tuntutan telah di tampal di papan notis mahkamah dan pengiklanan telah disiarkan di akhbar New Straits Times. Oleh itu, tidaklah boleh dipertikaikan bahawa penghakiman ingkar yang diperolehi Plaintif- Plaintif adalah satu penghakiman ingkar yang diperolehi secara teratur. Maka penghakiman ingkar ini hanya boleh diketepikan sekiranya Defendan Pertama boleh membuktikan ia mempunyai pembelaan yang bermerit. (b) Samada Defendan Mempunyai Pembelaan Yang Bermerit [14] Di dalam afidavit yang diikrarkan oleh Rajaduray A/L Karupiah pada 23 Jun 2015, Defendan Pertama telah cuba menunjukkan pembelaan berikut: 15    a) Tiada apa-apa kontrak tulis atau lisan terdapat antara Plaintif- Plaintif dan Defendan Pertama; b) Defendan Pertama tidak memberi apa-apa representasi kepada Plaintif-Plaintif dan tidak pernah menerima daripada Plaintif- Plaintif; c) Defendan Pertama tidak pernah memberi apa-apa waranti atau jaminan kepada Plaintif-Plaintif; d) Adalah dipercayai Plaintif Kedua telah berurusan dengan Defendan Kedua sahaja; dan e) Plaintif-Plaintif tidak membayar apa-apa royalti kepada Defendan Pertama. [15] Di dalam kes Public Finance Berhad v Zainal Bin Osman t/a Putera Foto Studio [2001] MLJU 476, Hakim Low Hop Bing (YA pada ketika itu) dalam diktanya telah menyatakan berikut: “In an application to set aside a regular judgment in default of appearance, the burden is on the defendant to show a defence on the merits: Kwong Yik Bank 16    Bhd v Sa’adiah Bte Mastan [1994] 2 MLJ 830; Evans v Bartlam [1093] AC 473. It is therefore incumbent on the defendant to show in his affidavit that he has a defence on the merits…Therefore, where, as in this case, the defendant’s affidavit discloses no defence on the merits or for that matter no triable issue or arguable issue, the application to set aside a judgment in default should be dismissed.” [16] Mahkamah ini juga merujuk kepada kes Utama Merchant Bank Bhd v Cawis Wira Sdn Bhd & Ors [2006] 7 CLJ 143. Di muka surat 148, Abdul Wahab Patail H (YA pada ketika itu) telah menyatakan bahawa: “In an affidavit based application, it is not enough to assert a fact in an affidavit. An assertion is not evidence. When an assertion is disputed, the onus lies upon the maker of that assertion to tender his evidence in a further affidavit, if he has not done so in his earlier affidavit where the assertion was made.” [17] Berdasarkan kepada kes-kes di atas, dan setelah meneliti dan menimbangkan pembelaan yang dinyatakan dalam afidavit oleh Defendan Pertama, Mahkamah berpendapat bahawa pembelaan Defendan Pertama hanyalah merupakan penafian semata-mata (“bare denial”). Mahkamah ini tidak berpuas hati atas keterangan 17    pembelaan Defendan Pertama kerana tiada apa-apa dokumen sokongan yang dikemukakan oleh Defendan Pertama. Defendan Pertama gagal menyakinkan Mahkamah bahawa terdapat pembelaan prime facie terhadap tuntutan Plaintif-Plaintif. (c) Samada Permohonan pindaan Penghakiman Ingkar oleh HMS adalah salah di sisi undang-undang (d) Samada Serahan permohonan pindaan kepada Defendan Pertama adalah tidak sempurna Alasan (c) dan (d) akan ditimbangkan bersekali [18] Adalah dihujahkan bagi pihak Defendan Pertama bahawa permohonan Plaintif-Plaintif untuk meminda Penghakiman Ingkarnya di bawah Aturan 20 Kaedah 11 Kaedah-Kaedah Mahkamah 2012 (KKM 2012) dengan menambahkan nama Rajaduray A/L Karupiah adalah salah di sisi undang-undang. Menurut peguam Defendan Pertama, pindaan di bawah Aturan 20 Kaedah 11 KKM 2012 hanya boleh dibuat bagi membetulkan “typing error” atau “accidental slip” sahaja. Menurut peguam 18    Defendan Pertama lagi, nama Rajaduray tidak wujud langsung di dalam Writ Saman dan yang tidak langsung diplidkan dalam Penyata Tuntutan. Oleh itu, nama beliau tidak boleh dimasukkan dalam Penghakiman secara pindaan begitu sahaja. Untuk berbuat demikian, peguam Defendan Pertama menghujahkan bahawa Plaintif-Plaintif hendaklah meminda Writ dan Penyataan tuntutan mereka. [19] Peguam Plaintif pula menghujahkan bahawa adalah fakta yang tidak dapat dipertikaikan bahawa Rajaduray A/L Karupiah adalah merupakan pemilik tunggal RS News Dot Com. Oleh itu, pindaan nama Defendan Pertama dalam Penghakiman Ingkar Terpinda dalam mana-mana keadaan tidak menukar ciri-ciri tindakan guaman ini atau memprejudiskan Defendan Pertama dalam mana- mana keadaan. [20] Bagi memutuskan isu ini, HMS telah menggunakan kuasa yang diberikan dengan tepat di bawah Aturan 1A dan Aturan 2 Kaedah 1 KKM 2012 yang menyatakan bahawa sebarang ketidakpatuhan prosedur hanya merupakan ketidakaturan dan seharusnya tidak menjadikan sesuatu prosiding sebagai tidak sah. Keadilan 19    sepatutnya menjadi objektif utama daripada ketidakpatuhan prosedur. [21] Seterusnya, HMS telah memutuskan bahawa walau pun pindaan kepada Penghakiman Ingkar bukan untuk membetulkan “typing error” atau “accidental slip” tetapi Penghakiman Ingkar ini tidak boleh diketepikan semata-mata atas alasan ketidakaturan. Defendan Pertama tidak menunjukkan sebarang prejudis yang dialami akibat pindaan terhadap Penghakiman Ingkar tersebut. [22] Berkaitan dengan isu serahan terhadap permohonan untuk meminda Penghakiman Ingkar, adalah menjadi dapatan Mahkamah ini bahawa bagi pemutusan di dalam permohonan untuk mengenepikan Penghakiman Ingkar adalah terpakai sama ke atas isu ini. [23] Atas pertimbangan-pertimbangan dan alasan-alasan di atas, kes ini bukanlah satu kes yang sesuai untuk Mahkamah ini mengganggu keputusan HMS, Mahkamah ini berpendapat HMS telah membuat keputusan yang betul apabila memutuskan bahawa Defendan Pertama tidak mempunyai pembelaan bermerit ke atas tuntutan Plaintif-Plaintif. 20    [24] Maka, Mahkamah ini menolak rayuan Defendan Pertama untuk mengenepikan Penghakiman Ingkar dengan kos sebanyak RM3000 kepada Responden. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 5 haribulan Januari 2016 Peguam Perayu - Tetuan S.T. Raj Encik S.T. Raj Encik Shengar Singh Peguam Responden- Responden - Tetuan Kamil Hashim Raj & Lim Encik S Prakash

Tika 2.6.0

15-147-2004

PLAINTIF Lush Developments Sdn. Bhd. DEFENDAN 1. Dato' Abu Hanifah bin Noordin

23/12/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=61d7733f-d0ee-49a8-a7ee-51165150fd7f&Inline=true

Microsoft Word - Lush judgment 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA LAND REFERENCE NO: 15-147-2004 BETWEEN LUSH DEVELOPMENTS SDN BHD ... APPELLANT AND PENTADBIR TANAH DAERAH SEPANG ... RESPONDENT GROUNDS OF JUDGMENT (Land Reference) A. BACKGROUND FACTS [1] The present case was previously decided in the High Court to which the Appellant has appealed against. Upon the Appeal, the present 2    case is remitted to be reheard again by this Court. This present case is simply an Appeal against the previous High Court decision for the amount of compensation payable for a land acquisition made by the State of Selangor. [2] The Appellant is a private limited company incorporated in Malaysia under the Companies Act 1950 which carries on the business of land development and sales (“Lush”). [3] The Respondent is the Land Administrator having jurisdiction over the District of Sepang. [4] Very succinctly, Lush has entered into a Joint Venture Agreement (“JVA”)dated 23.4.2000 with Perbadanan Kemajuan Pertanian Selangor (“PKPS”) to develop a piece of land held under title No. H.S. (D) 1426 P.T. No. 4466 in the Mukim of Dengkil, District of Sepang, State of Selangor Darul Ehsan measuring approximately to a total of 556.482 acres (“Project Land”). (see Exhibit IOI-1 of Enclosure I, for the JVA) 3    [5] The land was initially owned by PKPS and was only transferred into the Appellant’s ownership on 28.9.2001. [6] In the midst of the JVA’s performance, a part of the Project Land was scheduled to be acquired by the State of Selangor vide Warta Kerajaan Negeri Selangor Bil. 1406 on 13.9.2001 under Section Act of the Land Acquisition Act 1960 (“Act”). [7] As consequence of the acquisition and upon inquiry being conducted, the Land Administrator has awarded the following award; Bahagian Terlibat Orang yang berkepentingan Jenis Kepentingan Bahagian Pemberian Pt 4466, Hs(D) 1426, Mukim Dengkil, Daerah Sepang, Negeri Selangor. Luas tanah diambil: 17.5135 ha Tetuan A Zahari Kanapathy Thulasi (LUSH Development Sdn. Bhd. – Tuan tanah semua bahagian). Stakeholder Tanah: RM8,231,345.00 Pecah Pisah: RM 533,027.00 Kumpulan Jurunilai Sdn. Bhd. Penilai Swasta Kos Penilai: RM 18,546.56 Jumlah Pampasan RM8,782,918.56 4    [8] Being dissatisfied with the award handed down by the Land Administrator, Lush has filed its objection in Form N dated 12.4.2003 to appeal against the amount of compensation set by the State of Selangor in acquiring part of the Project Land. [9] In its Form N, in Paragraph 4 Lush’s grounds of objection is stated as follows: Alasan-alasan bantahan saya ialah seperti berikut: 1) pampasan untuk tanah adalah tidak seiras dengan harga pasaran. 2) kadar pampasan kecacatan tanah akibat kehilangan jalan masuk tidak diberi pertimbangan. 3) kadar pampasan kecacatan tanah akibat pecah pisah tidak diberi pertimbangan mencukupi. [10] This is the alleged cause of action of the present case. This Appeal has previously been referred, heard and disposed by the High Court. Upon appeal against this previous decision, the remittance of the case is premised mainly on two grounds: 5    i. Lush submits that the market value of the land should be valued at RM517,000.00 per hectare or 10% more rather than the decided rate of RM470,000.00 per hectare awarded by the previous High Court decision; and ii. Under the head of severance and injurious affection, Lush submits that the High Court previously has not considered the alleged loss of access to parcel B3 as a consequence of the acquisition. [11] Before this Court, Lush has made the following claims: On the basis of comparison, we are of the opinion that the market value of the subject land to be acquired as at 13 September 2001 is as follows:- 17.5135 hectares @ RM517,000 per hectare RM9,054,480/- (43.2768 acres) RM209,222 per acre) b) Parcel B2 3.5964 hectares (8.887 acres) RM310,200 per hectare RM1,115,603/- @ 60% depreciated value i.e. (RM125,533 per acre) 6    c) Parcel B3 1.2279 hectares (3.034 acres) RM517,000 per hectare RM634,824/- For “buffer zone” @ (RM209,222 per acre) 171.6778 hectares (424.225 RM103,400 per hectare RM17,751,485/- Acres) @ 20% depreciated (RM41,844 per acre) Value for “loss of access” i.e. Total : RM32,517,863/- [12] In determining Lush’s objection in respect of the award whivh has handed down by the Land Administrator and in arriving at a fair and reasonable amount of compensation, this Court is assisted by the two asssessors namely; Sr Md Badrul Hisham bin Awang (Government Valuer), Sr Tan Hoon Tiong (Private Valuer). [13] Both the assessors have arrived on a consensual decision or opinion and their consensual decision in writing has been submitted to this Court and this Court had accordingly recorded in pursuant to section 7    40C of the LAA. This Court concurs with the decision of the assessors which are as follows; i. Tuntutan ke atas nilai tanah bahagian yang diambil. Bahagian yang diambil berkeluasan 17.5135 ha yang merupakan tanah pertanian yang mempunyai potensi untuk pembangunan. Faktor kelulusan dasar untuk dibangunkan yang diperolehi pada 23/11/2000 iaitu lebih kurang 10 bulan sebelum tarikh nilaian pada 13/09/2001 perlu diambilkira. Oleh yang demikian kami berpendapat nilaian oleh penilai kerajaan yang berasakan kepada nilaian bagi tujuan duti stem untuk lot berkenaan pada 15/05/2001 sebanyak RM470,000.00 sah adalah munasabah. Ini adalah kerana nilaian berkenaan telah mengambilkira kelulusan dasar berkenaan. ii. Tuntutan kerosakkan dan penjejasan bagi Parcel B1. Tuntutan ini dipertimbangkan kerana bahagian ini telah terpisah dari bahagian yang lain. Namun demikian, ianya masih ekonomik untuk dibangunkan secara bersendirian kerana keluasannya 12.7707 ha (luas oleh penilai swasta) dan 8    bentuknya masih sesuai pembangunan. Kebenaran keluar masuk dari lebuhraya juga telah diberikan. Oleh itu kami berpendapat kadar 10% daripada nilai pasaran adalah munasabah untuk gantirugi kerosakkan ini. iii. Tuntutan kerosakkan dan penjelasan bagi Parcel B2. Tuntutan ini dipertimbangkan kerana bahagian ini juga telah terpisah dari bahagian yang lain. Walaupun ianya masih boleh dibangunkan, tetapi ianya sukar kerana bentuknya yang tigasegi dan keluasannya yang agak kecil 3.9654 ha, walaupun kebenaran keluar masuk dari lebuhraya telah diberikan. Oleh itu kami berpendapat kadar 30% daripada nilai pasaran adalah munasabah untuk gantirugi kerosakkan ini. iv. Tuntutan kerosakkan dan penjejasan bagi Parcel B3 (Buffer).) Tuntutan ini tidak dipertimbangkan kerana bahagian ini adalah sebahagian daripada Parcel B3 yang mempunyai luas keseluruhan 172.9057 ha. Ianya bukan sebahagian daripada Parcel B1. Kami berpendapat menjadi tanggungjawab pemaju 9    untuk menyediakan zon buffer yang mencukupi mengikut syarat-syarat kelulusan sesuatu pembangunan. v. Tuntutan kerosakkan dan penjejasan bagi Parcel B3 (South). Tuntutan ini tidak dipertimbangkan kerana bahagian ini adalah sebahagian daripada Parcel B3 yang mempunyai luas keseluruhan 172.9057 ha. Sungguhpun ianya telah terpisah dari bahagian yang lain, ianya masih boleh dibangunkan secara bersendirian kerana keluasannya yang besar 171.6778 ha dan bentuknya masih sesuai untuk dibangunkan. Kebenaran keluar masuk dari lebuhraya juga telah diberikan. vi. Tuntutan pembinaan jambatan. Ianya tidak dipertimbangkan kerana, a. Pada tarikh nilaian tidak dinyatakan terdapat sebarang jambatan bahagian berkenaan. b. Kos pembinaan jambatan juga tidak dituntut oleh Perayu sebagaimana tidak dinyatakan dalam Borang N, Nota Keterangan Pentadbiran Tanah dan Borang O untuk Rujukan Mahkamah. 10    c. Isu yang sebenarnya adalah kemudahan jalan keluar masuk ke atas tanah baki. Isu ini telah selesai apabila pihak SKVE telah member kebenaran untuk kemudahan keluar masuh dari lebuhraya ke tanah baki. d. Jambatan diperlukan hanya selepas pengambilan dibuat bagi menambah daya tarikan kepada pembangunan yang hendak dijalankan. e. Namun demikian, dengan adanya pembinaan lebuhraya di atas lot berkenaan, ianya telah memberikan ‘betterment’ kepada tanah baki kerana telah menjadi lot lapisan pertama dari lebuhraya dan mempunyai kemudahan jalan keluar masuk. Nilaian PARCEL LUAS (Ha) % NILAI ASAS (sha) NILAI (sha) NILAIAN B1 12.7707 10% RM470,000.00 RM47,000.00 RM600,222.90 B2 3.5964 30% RM470,000.00 RM141,000.00 RM507,092.40 B3 Suffer 1.2279 0% RM470,000.00 RM0.00 RM0.00 B3 South 171.6778 0% RM470,000.00 RM0.00 RM0.00 JUMLAH RM1,107,315.30 11    [14] With regard to Lush’s claim of damages in respect of injurious affection and claims the costs of the constructing the bridge which Lush has claimed that as consequence of the acquisition for purposes of SKVE, Lush has been deprived of its right of access or the alleged/ claimed of loss of access to parcel B3, this Court must add the followings: 14.1 Lush itself in its submission has submitted its agreement and admission to the amount compensation awarded with regard to the injury affected stemming from the division or “pecah tanah” of the Project Land into separate parcels of land. The Appellant merely sought for an additional award in view of the alleged loss of access. 14.2 The dispute over the alleged loss of access is actually is a non issue. It is Lush’s case that it has a valid right of access to share a path with another company, Tanda Bestari Sdn. Bhd. (“Tanda Bestari”) which was also developing PKPS’s land in Lot 4471 (“Acces Lot”) to link the Project Land with the Damansara – Puchong Highway (“LDP”). Following this 12    alleged right of access, Lush submits that it has lost this access consequent to the acquisition. Thus, Lush asserts that the Respondent is liable to pay the cost of a link bridge which was constructed to regain access to this right of access to LDP. (See Exhibits IOI-4 to IOI 6 for the plans illustrating this alleged deprivation of access) 14.3 The Respondent’s case is simply that the project land itself initially was a land locked land, devoid of any access even before the JVA was entered into. It is also the Respondent’s case that the access vide the Access Lot is an invalid right of access. Thus, it is not incumbent upon the State Government to pay Lush for a non-existent right of access, what more an invalid access vide the Access Lot linked to the LDP. 14.4 Thus, in final determination on the issue of this supposed deprivation of right of access, the single issue to be determined is whether or not Lush has a valid right of access vide the Access Lot linking to the LDP shared with Tanda Bestari. Entailing this determination, this Court would ascertain whether 13    or not there was a deprivation to begin with and whether Lush can rightfully claim for compensation for loss of access. a. WHETHER OR NOT LUSH HAS A VALID RIGHT OF ACCESS VIDE LOT 4471 (ACCESS LOT) SHARED WITH TANDA BESTARI LINKING TO LDP 14.5 In utmost simplicity, the Appellant’s case regarding its alleged right of access primarily hinges on two alleged affirmations: i. PKPS’s letter dated 25.4.2000, issued just two days after the JVA was entered into (“Access Letter) (see Exhibit GTS-2 of Enclosure D) which reads: “Demi memberi kemudahan kepada pembanguan kami di atas PT 4466 sehubungan dengan Perjanjian Usahasama bertarikh 23 April 2000 di antara pihak kami dengan pihak kamu. PKPS bersetuju untuk memberi kebenaran lalu lintas/jalan keluar-masuk ke dan dari PT 4466 melalui PT 4471 kepada pihak kamu. 14    ii. Lembaga Lebuhraya Malaysia’s letter to Tanda Bestari dated 28.12.2001(“LLM’s Letter”). (see Appendix L, Laporan Penilaian bagi Pihak Perayu, Enclosure B): “Setelah diteliti semua maklumat yang dikemukakan, kelulusan LLM adalah diberikan kepada TANDA BESTARI SDN BHD (selepas ini TABES) bagi cadangan pembinaan jalan keluar/masuk dari Persimpangan Bertingkat LDP – Serdang sedia ada di Lebuhraya Damansara – Puchong untuk cadangan pembangunan di atas Lot 4471 tersebut. Walaubagaimanapun ianya tertakluk kepada syarat- syarat berikut…” 14.6 Lush asserts that it has valid right of access when PKPS has already allegedly give the Appellant right to access the Project land vide the Access Lot owned by PKPS. 14.7 It is also the Appellant’s assertion that vide LLM’s Letter, merely because Tanda Bestari and Lush are subsidiary of the same Holding Company, IOI Properties Berhad, and that PKPS is the owner of both the Project Land and the Access Lot, LLM’s Letter authorising access to Tanda Bestari advertently gives shared access to Lush. There was a line of correspondence of 15    this assertion and application for a shared right of access to LDP in Appendix L of Enclosure B. 14.8 Lush refers to the High Court decision in Bertam Consolidated Rubber Co. Ltd v Pemungut Hasil Tanah Seberang Perai Utara, Butterworth [1989] 2 MLJ 178 in submitting that the Respondent ought to be liable to compensate Lush for the cost of building the link bridge as a cost of cure: “In Consolidated Plantation Bhd v PHT, Kelang [1984] 1 MLJ 273…The Federal Court upheld an award by the trial judge representing the cost of turfing the acquired land as such a measure would prevent the apprehended loss of their water supply. In Collector of Land Revenue v Looi Lam [1981] 1 MLJ 300, also a Federal Court case… As a result of the river deviation work, the house belonging to the objector was badly damaged and required extensive repair. It was held that damages for injurious affection to the house could be claimed and was rightly awarded under para 2(d) of the First Schedule to the Act.” b. There were no express approvals for a shared access linked to LDP vide the Access Lot granted to Lush 16    14.9 However, this Court must stress that, there were no documents exhibited in any of the reports or affidavits that support the contention that the Jabatan Kerja Raya (“JKR”) expressly grants Lush such shared access. Upon PKPS’s, Lush and Tanda Bestari’s application for shared access vide Lot 4471 linking to the LDP, the JKR has only responded to ask for further clarification from the applicants and has never given any form of approval be it in any form or manner. This is evident in JKR’s letter dated 31.5.2002 in the last page of Appendix L of Enclosure B. In fact, LLM has never issued any letter with respect of this application for a shared access. c. There were no incoherent response or confusion in the Respondent’s stance regarding the alleged right of access vide the Access Lot 14.10 Lush submitted that the Respondent was incoherent and was dismissive with its stance regarding the right of access vide the Access Lot. Before this Court delves into the final determination 17    of this issue, it is pertinent that this alleged incoherence be dealt with. i. The alleged contradiction between the Respondent’s 1st Valuation Report (Enclosure C) and “Jawapan Penilai Kerajaan Terhadap Laporan Penilai Swasta” (Enclosure H) In Enclosure C, the Respondent reported that the Project land indeed has an access vide a private road BUT however, the access is an invalid access. In Enclosure H, the Respondent then reported that the Project Land does NOT have any access at all from any direction and that the Project Land is originally a land locked lot. Now, what the Appellant sought to prove here is that the Respondent is blowing both hot and cold regarding the existence of such access. 14.11 However, this Court bears no hesitation to refute this assertion. There is nothing contradictory here. Although 18    Enclosure C reports that there was an access, it was also reported that the access is an invalid access. Thus, having an invalid access is akin to NOT having access at all, which is thoroughly coherent and in-line with the ensuing Report in Enclosure H. ii. The alleged admission by the Respondent that the acquisition indeed poses an obstacle to right of access in the Respondent’s Jawapan Penilaian Kerajaan Terhadap Laporan Penilai Swasta (Enclosure H) 14.12 This Court must highlight here that Lush has been very selective in referring to the content of Enclosure H in tailoring the document to its case. So much so that it has painted an utterly inaccurate understanding of the Report. Lush merely relied on this excerpt of the Report and deliberately omitted the ensuing paragraph of paragraph 6.5 of the Report: 19    “Pemohon… juga semasa menandatangi Perjanjian Usahasama… dengan …(PKPS) pada 23 April 2000 telah pun mengetahui perancangan pembinaan lebuhraya dan masalah yang bakal dihadapi untik keluar masuk ke Lot subjek.” 14.13 Based on the limited excerpt above, Lush attempted to attribute the problem of access to the knowledge of the construction of the highway. However, this is verily inaccurate. The actual ground that the Respondent reported that Lush is already fully aware of the problem of access is because the Project Land from the outset does not has an access and has not obtained any approval for access. The next paragraph of the above excerpt reads: “Daripada fakta dan huraian di atas dapat disimpulkan bahawa pada tarikh material Lot Subjek masih belum mempunyai Kebenaran Merancang dan menghadapi masalah jalan masuk” 14.14 Thus, this Court is of the view that there were no such inconsistencies and admission as asserted by the Appellant, Lush. 20    d. LLM’s letter does not give Lush a valid right of access 14.15 It is utterly easy to understand that the literal and simple reading of LLM’s letter that the right of access was given only and exclusively to Tanda Bestari and none other parties. It begs no further question to it. The letter goes as far to define Tanda Bestari, and in fact has not even once mentioned Lush. “Setelah diteliti semua maklumat yang dikemukakan, kelulusan LLM adalah diberikan kepada TANDA BESTARI SDN BHD (selepas ini TABES) bagi cadangan pembinaan jalan keluar/masuk dari Persimpangan Bertingkat LDP – Serdang sedia ada di Lebuhraya Damansara – Puchong untuk cadangan pembangunan di atas Lot 4471 tersebut. Walaubagaimanapun ianya tertakluk kepada syarat-syarat berikut…” 14.16 The recipient of the approval is clearly highlighted and capitalised in bold font to be Tanda Bestari. There is no conceivable justification by the farthest reaches of the legal and logical imagination that the letter should also read that the approval was to be shared with Lush. 21    14.17 In fact, the only party in which has replied to LLM’s letter was Tanda Bestari in its letter dated 9.4.2002 in Appendix L of Enclosure B. 14.18 Lush and PKPS merely have applied to LLM and JKR for a shared access to LDP vide the Access Lot. It is noted that PKPS, Lush and Tanda Bestari have all agreed to share the cost and ultimately share the access to LDP vide the Access Lot. Nevertheless, whether this link to the LDP Highway is a right to be granted or received is not within the purview or jurisdiction of any of those parties to receive or grant. The parties are aware of this fact. Even Tanda Bestari sought to apply for such access to link with the LDP. Even PKPS and Lush have applied for shared access. And as reiterated earlier above, there were NO documents at all appended or exhibited to show that LLM and JKR have both agreed to grant such rights to shared access to the LDP to Lush particularly. Lush cannot simply assert that the approval for Tanda Bestari is also an approval for Lush’s access. When the approval was granted to Tanda Bestari, the LLM has only considered the 22    technicalities and prospect of the project developed by Tanda Bestari. LLM has not at all considered the implications, traffic consideration, and geological considerations of having such shared access with Lush. 14.20 Thus, it is this Court’s considered view that LLM’s letter here, does NOT at all support any contention that the Appellant has a right of access vide the Access Lot linked to the LDP. e. PKPS’s Access Letter also does not give a valid right of access 14.21 Now, it must be stressed here that this Access Letter was issued merely two days after the execution of the JVA. At this moment in time, the Project Land is still owned by PKPS. Thus, it is verily material to note that at the time this letter was issued, PKPS owned both the Project Land and the Access Lot. 14.22 To infer that Lush has right of access as Owners of the Project Land, Lot 4466 through the Access Lot owned by PKPS merely by this Access Letter is verily incorrect. This is because when 23    PKPS gave the rights to access, the rights to access was not given to lot 4466 or the Owner of Lot 4466 as at that point in time PKPS owned lot 4466 together with the Access Lot. Thus, at this moment in time there was never any issue of access. Any access given vide this letter is merely a right to access to the developer to move about all of the land collectively owned by PKPS wherein access would NEVER become an issue. 14.23 The access is not given to Lush as Owners of Lot 4466 but developers of Lot 4466 which incidentally a Lot which is collectively owned by PKPS inclusive of the Access Lot. Thus it is not an access attached to the land title or Ownership of the Project Land. 14.24 Therefore, all the Access Letter stand to prove was merely a permission to access neighbouring lots (Access Lot) which was also owned by PKPS together with lot 4466 (which was also owned by PKPS at that moment in time) where access would NOT become an issue. 24    14.25 PKPS could not have intended to grant such access to Lush as there was never a necessity to do so at that material time owing to the fact that PKPS owned all of the lands, inclusive of lot 4466 and the Acess Lot. 14.26 Thus, it naturally entails that when the Project Land was sold to Lush and there no longer was this collective ownership of Project Land and the Access Lot, an actual right of access becomes necessary to be obtained by Lush as new Owner Project Land. PKPS’s privilege to collectively deal with its own Land ceases when PKPS no longer owns both the Project Land and the Access Lot. This is the material time in which a new and actual right of access becomes necessary. Of which, Lush has ultimately failed to seek and be granted with such right of access. There were never any agreements or documents to prove such granting of right of access between the two Owners, being the Owner of the Access Lot, PKPS, and the Owner of the Project Land, Lush. 25    14.27 Even for a moment, assuming that the Access Letter indeed gave a valid right of access between these Owners (which this Court thoroughly disagrees), the right of Access still remains invalid as reiterated earlier, Lush does not have any express or implied approval to have a shared link to the LDP with Tanda Bestari. Even if Lush be allowed to access the Access Lot, Lush does NOT have rights to access the LDP Highway. 14.28 Thereto, this Court finds no hesitation to find that the Access Letter ultimately does NOT prove any valid right of access in favour of Lush to link the Project Land to the LDP vide the Access Lot. f. WHETHER LUSH WAS DEPRIVED OF THE ALLEGED RIGHT OF ACCESS AS CONSEQUENCE OF THE ACQUISITION 14.29 It naturally entails from the earlier findings that, at no point in time that Lush was ever deprived of a right of access owing to 26    the overwhelming fact that Lush from the get go never has any right of access as alleged by the Lush itself. 14.30 It is undeniable without an inkling of doubt that the Project Land in essence and from the outset, was a Land Locked lot and has no access whatsoever to begin with. Thus, even assuming that there were no acquisitions conducted, it is already incumbent upon Lush that it must bear its own costs to develop and construct access in and out of the Project Land. 14.31 Furthermore, the construction of SKVE was not in any manner a deprivation of a right of access. In fact, the SKVE poses to be a valuable point of access as it is nearer to the Project Land, rather than the LDP Highway which is farther away from the Project Land. 14.32 The fact that the SKVE exercises a closed system is a non- issue as the system does NOT absolutely disallow any developments of access in and out of the Highway. This is 27    evident in Lush’s own Affidavit Tambahan Ke-3 where indeed, LLM has granted approval to build an access to SKVE from the Project Land. The Appellant is not in any manner cornered or coerced to construct the access bridge or link bridge from its own coffer as it is already within Lush’s own responsibility to develop such access to the Land Locked Project Land. 14.33 Thus, this Court is of the considered view that the Appellant is NOT deprived of any right of access due to the fact that the Appellant never has a right of access to begin with. g. The issue of the admissibility of the Appellant’s Affidavit Tambahan Ke-3 is moot 14.34 This Court is of the considered view that the issue of admissibility of the Appellant’s Affidavit Tambahan Ke-3 is rendered immaterial to be determined owing to the fact that the Appellant has no cause of action to claim for damages with respect of the right of access to begin with. 28    Court’s Decision [15] This Court hereby orders as follows: Bil Perkara Jumlah Pampasan Award Pentadbir Tanah Jumlah Tambahan Pampasan 1 Nilai Tanah RM8,231,345.00 RM 8,231,345.00 RM0.00 a) Parcel B1 RM600,222.90 b) Parcel B2 RM507,092.40 c) Parcel B3 (Buffer) RM 0.00 d) Parce; B3 (South) RM 0.00 Jumlah: RM1,107,315.30 RM533,027.00 RM574,288.30 Jumlah RM 9,338,660.30 RM 8,764,372.00 RM 574,288.30 (a) Awad Pentadbir Tanah dikekalkan; (b) Responden hendaklah membayar pampasan tambahan untuk Injuirous Affection terhadap parcel B1 dan parcel B2 sebanyak RM574,288.30 kepada Pemohon; (c) Faedah sebanyak 8% daripada Borang K; (d) Deposit sebanyak RM3,000.00 yang dibayar oleh Pemohon dikembalikan kepada Pemohon; (e) Tiada perintah mengenai Kos Mahkamah; dan 29    (f) Fee dua orang Pengapit Hakim (Assessors) sebanyak RM1000/- setiap seorang hendaklah dibayar oleh pihak Pemohon kepada kedua-dua Pengapit dalam tempoh satu bulan dari Perintah ini. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 23rd December 2015 For the Appellant - Tetuan R Sivagnanam For the Respondent - Penasihat Undang-Undang Negeri Selangor

Tika 2.6.0

22-1245-2010

PLAINTIF 1. TALAM CORPORATION BERHAD 2. DEVELOPMENT SDN BHD DEFENDAN 1. BANGKOK BANK BERHAD 2. RAJENDRAN PALANIAPPAN

03/12/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ef918e9e-d545-4c50-adbb-2a5378681fa2&Inline=true

Microsoft Word - 22-1245-2010 Talam Corporation Berhad (Supplementary Grounds Of Judgment On Costs) 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN CIVIL SUIT NO: 22 – 1245 – 2010 BETWEEN 1. TALAM CORPORATION BERHAD 2. DEVELOPMENT SDN. BHD … PLAINTIFFS AND 1. BANGKOK BANK BERHAD 2. RAJENDRAN PALANIAPPAN … DEFENDANTS (SUPPLEMENTARY GROUNDS OF JUDGMENT ON COSTS) [1] This Court has been urged by the counsel for the Defendants to award costs on the following basis:- 2    (i) Party and party costs as between the 1st Plaintiff and the Defendants; (ii) Costs on an indemnity basis as between the 2nd Plaintiff and the 1st Defendant; and (iii) Party and party costs as between the 2nd Plaintiff and 2nd Defendant. [2] However, it was submitted by the Defendants that if this Court is minded to award the costs between the 2nd Plaintiff and the 1st Defendant as per basis (ii) namely by awarding costs to the 1st Defendant on an indemnity basis then it would negate an extensive consideration of the party and party costs as between the Plaintiffs and the 2nd Defendant and also the 1st Plaintiff and the Defendants. [3] It was also submitted on behalf of the Defendants that the nature of the Plaintiffs’ claim and their conduct in respect of the trial of the action warranted the granting of costs on an indemnity basis as between the Plaintiff and the Defendants. 3    2nd Plaintiff is contractually obligated to pay the 1st Defendant’s legal costs and expense on an indemnity basis [4] It was contended by the Defendants that the 2nd Plaintiff is contractually obligated to pay the costs of the 1st Defendant on an indemnity basis by virtue of the Charge Annexure. The Defendants contended that the execution of Charge instrument in favour of the 1st Defendant vide Form 16A Charge dated 21 November 2005 (Presentation No. 92377/05) (“Charge”) and the Annexure to Form 16A Charge dated 28 November 2005 (Presentation No. 92377/05) (“Annexure”) creates and governs the legal and contractual relationship between the 2nd Plaintiff and the 1st Defendant. Thus, it is the submission of the Defendants that 2nd Plaintiff’s legal and contractual obligation are spelt out within perimeter and boundary of the Charge Annexure. On this contention, the Defendants sought reliance on two cases, namely; i. V Letchumanan v. Central Malaysian Finance Bhd. [1980] 2 MLJ 96 4    The Federal Court held that the contents of the Charge consisting of the statutory form and the annexure, read as a whole, set out the actual agreement between the parties. ii. Standard Chartered Bank Malaysia Bhd. v. Tunku Mudzaffar bin Tunku Mustapha [2005] 1 MLJ 604 Mohd Hishamudin J explicitly stated that, “a Charge Annexure is part of the charge instrument” and held that as long as the clauses in the annexure are in line with the National Land Code, it would be enforceable between both parties. [5] In support of its entitlement for costs on an indemnity basis from the 2nd Plaintiff, the Defendants have placed reliance on section 12.28 of the Annexure. Section 12.28 of the Annexure reads as follows: “SECTION 12.28 INDEMNITY (a) The Chargor shall nor do or omit or suffer to be done any act, matter or thing in or respecting the Said Land which contravenes the provisions of this Charge or any Act, Ordinance, Enactment, Order, rule, regulation or by-law now or hereafter affecting the same and the Chargor shall at 5    all times (hereafter indemnify and keep indemnified the Lender against all losses, actions, proceedings, costs, expenses, claims and demands in respect of any such act, matter or thing done or omitted to be done in contravention of the said provisions. (b) In addition and without prejudice to the power, rights and remedies conferred on the Lender herein, the Chargor shall indemnify the Lender against any loss or expense (including but not limited to legal expense on a solicitor and own client basis) which the Lender may sustain or incur as a consequence of any default in payment by the Chargor of any sum due hereunder including (but not limited to) any interest or fees paid or payable on account of or in respect of any borrowed or deposit from third parties in order to maintain the amount in default or in liquidating or re-employing such funds or deposits.” [6] It was argued by the Defendants that section 12.28 of the Annexure has explicitly and unequivocally provides that the 2nd Plaintiff must indemnify the 1st Defendant in full of any legal fees incurred by the Defendants in defending this action as this action (which was filed by the 2nd Plaintiff against the Defendant) was premised on the charge document executed by the 2nd Plaintiff as registered owner of the 6    property to the 1st Defendant as security for the loan facility granted to Keuro Leasing. [7] The Defendants had therefore urged this Court to give effect to the intentions of parties to the contract. It was submitted by the Defendants that this Court is bound and must give effect to intentions of parties in the contract. (See: i.United Overseas Bank Ltd v Sin Leong Ironbed and Furniture Manufacturing Co (Pte) Ltd & 5 Ors [1988] 1 MLJ 479 ii. Oversea-Chinese Banking Corp Ltd v Sarlian Trading Sdn Bhd [1994] MLJU 556 iii. Malayan Banking Bhd v Wembley Industries Holdings Bhd [2012] MLJU 91 iv. a Essar Steel Ltd v Bayerische Landesbank And Others [2004] 3 SLR 25) [8] The Defendants have also contended that the provision stipulated under section 12.28 of the Annexure is not the only provision entitling the 1st Defendant to be indemnified by the 2nd Plaintiff of any losses or expense including legal expenses incurred by the 1st Defendant arising from the Charge instrument. Section 12.11 of the Annexure also allows the 1st Defendant to deduct such costs and expenses incurred by the 1st Defendant against the excess sale proceeds 7    obtained through the auction of the Property, the sum of which is currently retained by the 1st Defendant pending the disposal of this suit so that the 2nd Plaintiff does not need to incur any additional out- of- pocket expenses should such an order as to costs be awarded to the 1st Defendant. [9] The 1st Defendant further argued that the Defendants had defended this suit merely to protect and enforce its rights as a Chargee to the property under the Annexure, only to be sued by the Plaintiffs. The Charge Annexure being a clear and an unambiguous contract, must be given full effect by this Court. The case of Royal Selangor Golf Club v. Anglo-Oriental (M) Sdn. Bhd. [1990] 1 CLJ 995 was brought to this Court’s attention. Plaintiffs’ conduct during the whole trial justify costs on indemnity basis [10] The counsel for the Defendants had also urged this Court to award the Defendants costs on an indemnity basis based on the Plaintiffs’ conduct during the whole trial in which the Defendants had contended that the Plaintiffs had conducted themselves in an abhorrent and 8    scandalous manner. The Defendants have described the abhorrent and scandalous conducts during the whole trial as follows: i. The Plaintiff had blatantly disregard pre-trial directions as well as orders made in Court during trial by filing pertinent documents only days before the trial date and by attempting to produce additional bundles of documents even after this Honourable Court had barred them from doing so; ii. The Plaintiff had filed various and voluminous bundles of documents which do not hold up to scrutiny during the course of the trial in an attempt to overwhelm the Defendants and had inevitably wasted this Honourable Court’s time as the originals were never produced and/or were inconsistent with its copies and/or the makers of such documents were not called; iii. The Plaintiff had included last minute witnesses in order to supplement the loopholes in the Plaintiffs’ case even though such witnesses had no personal knowledge on the same and had only served witness statements for so-called subpoenaed witnesses on the actual day of examining the said witnesses; 9    iv. The Plaintiffs’ counsel had, on a variety of occasions, answered questions for the Plaintiffs’ own witnesses during the Defendants’ cross examination of the same, instructed the Defendants’ counsel to ask certain cross-examination questions and generally interrupted the Defendants’ counsel’s line of questioning on multiple occasions; and v. The Plaintiffs had attempted to withdraw purported original documents which were marked as Exhibits ID-6 to ID-9 upon the Defendants objection to the authenticity of the same, as they did not appear to be documents that were approximately Nine (9) years old and appeared to be freshly printed. [11] The Defendants had also submitted that the above conducts of the Plaintiffs had not only caused tremendous strain on the Defendants’ solicitors in responding and constantly objecting to the conduct of the Plaintiffs’ solicitors but is also evidence of the desperate, disingenuous and mischievous effort by the Plaintiffs to win at all costs without due regard to the ends of justice and the law. Entailing which, the Defendants contend that this was extremely prejudicial to the Defendants who had to constantly change their strategy and 10    adapt to the Plaintiffs’ sudden onslaught of additional documents, witnesses and witness statements. [12] The counsel for the Defendants had placed his reliance on the following cases: (i) An English case of Bahram Noorani v. Richard Calver [2009] EWHC 592 (QB) In Bahram Noorani, Coulson J in considering the applicable principles in determining costs opined as follows:- “Indemnity costs are no longer limited to cases where the court wishes to express disapproval of the way in which litigation has been conducted. An order for indemnity costs can be made even when the conduct could not properly be regarded as lacking in moral probity or deserving of moral condemnation: see Reid Minty v Taylor [2002] 1 WLR 2800 ). However, such conduct must be unreasonable “to a high degree. ‘Unreasonable’ in this context does not mean merely wrong or misguided in 11    hindsight”: see Simon Brown LJ (as he then was) in Kiam v MGN Limited No2 [2002] 1WLR 2810. In any dispute about the appropriate basis for the assessment of costs, the court must consider each case on its own facts. If indemnity costs are sought, the court must decide whether there is something in the conduct of the action, or the circumstances of the case in question, which takes it out of the norm in a way which justifies an order for indemnity costs: see Waller LJ in Excelsior Commercial and Industrial Holdings Limited v Salisbury Hammer Aspden and Johnson [2002] EWCA (Civ) 879 . Examples of conduct which has lead to such an order for indemnity costs include the use of litigation for ulterior commercial purposes (see Amoco (UK) Exploration v British American Offshore Limited [2002] BLR 135 ); and the making of an unjustified personal attack by one party by the other (see Clark v Associated Newspapers [unreported] 21st September 1998 ). Furthermore, whilst the pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the 12    pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order: see, for example, Wates Construction Limited v HGP Greentree Alchurch Evans Limited [2006] BLR 45.” (ii) The Federal Court’s decision in Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181. Gopal Sri Ram FCJ delivering the judgment of the Federal Court opined : “What appears clear is that the discretion to award costs on an indemnity basis is unfettered. All that is required is that it must be an appropriate case warranting an award on that basis.” In the case of Mirzan Bin Mahathir v Star Papyrus Sdn Bhd [2000] 6 MLJ 29, the defendant had argued that costs on a full indemnity basis should not have been ordered by the learned SAR. On appeal, the judge then held that the menial and subservient attitude adopted by the defendant in complying with the request to include the defences of consent, justification, qualified privilege and fair comment in its defence, after initially writing to the plaintiff's solicitors that it 'bears neither any ill will nor 13    malice' against the plaintiff, is a clear indication that costs on a full indemnity basis should be paid forthwith. (iii) Alex Ting Kuang Kuo @ Ting Kuang Kuo v Credit Corp (M) Sdn Bhd [2012] MLJU 1070. Hamid Sultan J (as he then was) had stated that: “As a general rule, court is obliged to order party to party costs on a standard basis and is given the discretion to order the same on indemnity basis (see Order 59 rule 16(2) of the CR 2012). A party to party costs on indemnity basis may be ordered where there has been scandalous conduct and is meant to be punitive in nature (see EMI Records v Wallace [1982] 2 ALL E.R. 980).” [13] Based on the above propositions, the counsel for the Defendants has asked for the sum of RM558,822.30 to be paid to the Defendants by the Plaintiffs being the particulars which have been itemised in Appendix 1, 2 and 3 of their submission. 14    [14] The Plaintiffs have vehemently refuted the Defendants’ claim for costs to be paid to the Defendants on an indemnity basis. The Plaintiffs had in contrary, argued that contractual relationship between the 2nd Plaintiff and the 1st Defendant arising from the Charge Annexure had ceased upon the land was auctioned off and the proceeds of sale had been paid in full by the successful bidder to the 1st Defendant. According to the Plaintiffs, at the time when the 1st Defendant received the proceeds of sale of the land in January 2011, the contractual relationship between the 2nd Plaintiff and the 1st Defendant had ceased then. [15] It was further submitted by the Plaintiffs that the 1st Defendant cannot rely on section 12.28 of the Charge Annexure as a basis to seek costs against the 2nd Plaintiff in this action as section 12.28 of the Charge Annexure are of limited application. It was the contention of the Plaintiff that section 12.28 is only applicable to situations where the 2nd Plaintiff had contravened the provisions of the Charge Annexure or breached any written law and such contravention or breach had affected the land and it does not extend to indemnify the 1st Defendant in respect of legal costs incurred in this instant case. 15    [16] In the present case, it was contended by the Plaintiffs that it is undisputed that the 1st Defendant had obtained an Order for Sale against the land and thereafter auctioned off the same and had received the proceeds of sale, and hence the 1st Defendant’s rights and interest in the property remained intact and uncompromised. [17] The Plaintiffs further contended that section 12.28(b) of the Charge Annexure must be read and interpreted as a whole and not only to portion which has been highlighted by the Defendants. The clear provision of section 12.28(b) is that, the 2nd Plaintiff as chargor will indemnify the 1st Defendant’s legal expense and costs as the charge only in respect of the following instances: (a) to recover the outstanding sum under the banking facilities; and (b) to enforce the charge ( including the auction of the land). [18] The above proposition, according to the Plaintiffs is consistent with statutory provisions of Section 268 of the National Land Code 1965 (NLC) which limits the liability of the chargor. The Plaintiffs further submitted that section 268(3) of the NLC provides a statutory 16    protection to the 2nd Plaintiff by limiting the 2nd Plaintiff’s liabilities to the 1st Defendant up to the time of the auction of the sale. [19] The counsel for the Plaintiffs had also submitted that there is a distinction between “solicitor own client costs” and “costs on indemnity basis” provided under Order 59 rule 16(4) of the Rules of Court 2012 (ROC) and these two terms cannot have the same meaning. [20] The Plaintiffs had also referred this Court to Hamid Sultan Abu Backer J’s (as he then was) decision in Alex Ting Kuang Kuo where his lordship has explained the term “solicitor own client costs” as follows; “ [11] Solicitor-client costs, in essence, are based on indemnity basis. The solicitor-client costs are not based on what costs or fees the solicitor has agreed with the client. If the solicitor has agreed with the client a certain fees (actual costs), they are contractual and have nothing to do with taxation on a solicitor-client basis. Taxing registrar must note this distinction. For example, contract may provide that costs of litigation between the parties will be based on solicitor-client costs. This just means 17    it must be taxed on indemnity basis and not on what the solicitor has agreed with the fees for his clients. For example, where it is related to default judgment, the getting up fees will only be nominal and not what the solicitor has agreed with the clients. Even if there is a contract between the parties to assess cost on solicitor-client basis, the ultimate discretion of costs is still vested in court pursuant to the Courts of Judicature Act 1964 and as well as the RC 2012 to award appropriate amount. “ [21] The Plaintiffs had brought to this Court’s attention to Dr. Andrew Chew Peng Hui’s explanation in respect of an award on an indemnity basis. At page 352 in The Law of Costs in Civil Proceedings (Sweet & Maxwell Asia), the author had stated this: “ On the indemnity basis, “considered more favourable” to the recovering party than the standard basis costs”, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred; …” [22] It is also the contention of the Plaintiffs that even assuming that section 12.28 of the Annexure can be relied on by 1st Defendant, the 2nd Plaintiff cannot be made liable to full indemnification of 1st Defendant’s legal costs as the 2nd Plaintiff’s participation throughout 18    this action is very minimal. It was submitted that the 2nd Plaintiff is named and included as a plaintiff in this action simply because the 2nd Plaintiff was the registered proprietor of the property. The Plaintiffs further submitted that it is undisputed that the core issues and contentions in this action only revolve around the disputes between the 1st Plaintiff and the Defendants. Court’s decision i. on the contractual obligation of the 2nd Plaintiff [23] It is settled that award of costs at the conclusion of a trial is always within the discretionary power of the Court. When the Rules of Court 2012 (ROC) was introduced, Order 59 rule 7(2) and 19 have done away with the assessment of appropriate costs to the winning party by way of taxation proceeding. While in determining the appropriate costs, Order 59 rule 16 provides the basis of assessment. Order 59 rule 7(2) and 19 of the ROC provides as follows: Order 59 rule 7(2): “ … 7.(2) At the conclusion of the proceedings, the Court will hear submissions from the parties as to the quantum of costs to be 19    awarded and shall order such costs as it deems fit. The Court shall direct that the submissions of the parties on costs are to be tendered as part of the substantive submission of the case or separately and there shall be annexed to the submission of costs a bill for such costs which shall be in Form 117, and shall include particulars of the following: (a) work done including the value of getting up; and (b) all disbursements reasonably incurred. …… ” Order 59 rule 19: “ …. 19. (1) The amount of costs (excluding disbursement) that are payable shall be at the discretion of the Court and shall be determined upon the conclusion of the trial. (2) In fixing the costs payable, the Court shall have regard to the relevant circumstances including but not limited to the factors set out in the rule 16.” [24] This Court was urged to award the Defendants costs on an indemnity basis on the premise that the contractual relationship between the 1st Defendant (as chargee) and the 2nd Plaintiff (as Chargor) arising from the Charge Annexure must be given effect or must be enforced. On behalf of the Defendants it was argued that the 2nd Plaintiff is 20    contractually obligated to indemnify the 1st Defendant the entire legal expenses incurred by the 1st Defendant in defending the 2nd Plaintiff‘s action against it. This present action, according to the Defendants is an action arising from contractual relationship derivative from the Charge Annexure. [25] This Court is not inclined to accept the Defendants’ contention that the 2nd Plaintiff is contractually obligated to indemnify the 1st Defendant’s legal expenses in respect of this present action. This Court is of the view that even though this action is somehow or rather connected to the foreclosure proceeding arising from the Charge Annexure, but one must ask this question; whether this action is within the boundary or perimeter of section 12.28 of the Annexure or section 12.11 of the Annexure for that matter. Now, the present action was filed by the Plaintiffs primarily on the allegation that when the 1st Defendant proceeded with the Order for Sale, and the property was sold at an undervalued price. The Plaintiffs also alleged that 1st Defendant had not given the 1st Plaintiff time and opportunity to redeem the land despite the fact that there was a purported MBI agreement within the knowledge of the Defendants. On these 21    grounds, the Plaintiffs claim that they are entitled to recover damages or loss suffered from the Defendants for selling off the property vide the foreclosure action. [26] This Court is in full agreement with the submission of the Plaintiffs’ counsel that the contractual relationship between the 2nd Plaintiff and the 1st Defendant arising from the Charge Annexure had ceased upon the land being auctioned off and the proceeds of sale had been paid in full by the successful bidder to the 1st Defendant. The Defendants had received the proceeds of sale and the property no longer belongs to the 2nd Plaintiff and hence the Charge Annexure has come to its end. Thus, the provisions in the Annexure no longer bind both the parties and are no longer enforceable. [27] To extend the application of the Annexure to what has been submitted by the Defendants would be erroneous and this Court is not inclined to allow such extensive and unlimited application of the Charge Annexure. The Defendants must fail on this ground. 22    ii. Does Plaintiffs’ conduct during the whole trial justify costs on an indemnity basis [28] This Court is of the considered view that the conducts of the Plaintiffs which were set out by the Defendants do not justify costs on an indemnity basis. [29] The principle justifying costs be awarded on indemnity which has been laid down by the authorities cited by both the Plaintiffs and the Defendants is crystal clear. In this case, there is no reason why this Court should punish the Plaintiff to show its disapproval the way in which litigation has been conducted by the Plaintiff. The Plaintiffs in filing this action have not conducted themselves in manners which are against moral probity that deserves to be condemned by this Court. Nor do the Plaintiffs’ conduct can be described as unreasonable to a high degree. Authorities have decided that unreasonable in this context does not mean merely wrong or misguided in hindsight. This action is also not the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) or weak claim. 23    [30] Based on the above findings, the Defendants must also fail on this ground. [31] Be that as it may, this Court must again, emphasise that the claim pursued by the Plaintiff although not warranting costs on an indemnity basis, this Court must still consider all of the facts surrounding the case. In determining the appropriate costs to be awarded to the Defendants, this Court must not lose sight of the provisions stipulated under Order 59 rule 16 of the ROC (on basis of assessment) as well as Order 59 rule 8 of the ROC pertaining other special matters that can be taken into account by the Court in exercising its discretion in awarding costs. Order 59 rule 8 provides as follows; (a) any offer of contribution or offer of settlement under Order 22B; (b) the conduct of all the parties, including conduct before and during the proceedings; 24    (c) The conduct of the parties in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution; and (d) in particular, the extent to which the parties have followed any relevant pre-action protocol or practice direction for the time being issued by the Registrar.” [32] This action on its face seems to be a simple case but as the trial proceeded, the case expanded to be a complex case involving complex issues of law regarding land ownership, its valuation, contractual validity, locus standi of the Plaintiffs, matters of estoppel and res judicata, beneficial entitlements, evidential burdens, fiduciary duties, and even procedural rules. [33] There were four separate applications heard during the trial itself which required submissions and hearings to be carried out as well as several other prior interlocutory applications that delayed the matter for 4 years before a trial date was even fixed. The extent of which this matter required specialized skill and knowledge was reflected in the fact that land valuers and solicitors were called to give evidence; 25    [34] The trial was conducted in 29 days, some of which went on very late at night and was conducted on the premise of voluminous bundles of documents comprising 18 bundles of documents, 15 witnesses had testified, 15 volumes of notes of proceedings and where both parties had filed about 300 pages worth of written submissions with equally voluminous bundles of authorities; [35] The value of the claim is RM33,000,000.00 and the basis of the claim involved a settlement agreement for the sum of RM241,367,317.09 and for a Property allegedly claimed to be valued at RM RM48,697,902.00. [36] This Court is in total agreement with the Defendants that taking into consideration the numbers of bundle of documents filed in court, witnesses called to testify and days of trial as well as the legal issues involved in this legal action, these factors must be reflected in the costs to be awarded by this Court. 26    [37] Hence, based on the foregoing, the sum of RM 300,000.00 is reasonable considering the circumstances of this action. This Court hereby orders the Plaintiffs to pay the Defendants a global sum of RM300,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 03rd December 2015 For the Plaintiffs : Tetuan Arifin & Partners Encik Chin Tzi Seng Cik Emmy Hazwani Jamil For the Respondent : Tetuan Zaid Ibrahim & Co Encik Oommen Kurien Cik Celine Chelladurai Cik Ain Aissa

Tika 2.6.0

25-38-04/2013

PEMOHON UNITED ALLIED EMPIRE SDN BHD RESPONDEN 1. PENGARAH TANAH DAN GALIAN SELANGOR 2. PENTADBIR TANAH DAERAH KUALA SELANGOR 3. JABATAN AGAMA ISLAM SELANGOR 4. MAJLIS AGAMA ISLAM SELANGOR 5. LEMBAGA ZAKAT SELANGOR 6. KERAJAAN NEGERI SELANGOR

03/12/2015

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 25-38-04-2013 United Aliied Empire Sdn Bhd Lwn PTD Selangor dan 5 yang lain 1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA APPLICATION FOR JUDICIAL REVIEW NO: 25-38-04/2013 Dalam perkara mengenai hartanah milik Pemohon yang dipegang di bawah GRN 49148 di Lot No. 682 (kini dikenali sebagai GRN 283902 Lot 682) dan GRN 93904 di Lot No. 514, Mukim Bestari Jaya, Daerah Kuala Selangor, Selangor Darul Ehsan; Dan Dalam perkara pengambilan tanah yang diisytiharkan dalam Warta Kerajaan untuk “Tujuan Tapak Masjid Ar-Ridwan” menurut Akta Pengambilan Tanah 1960; Dan Dalam perkara tujuan sebenar pengambilan tanah yang diumumkan bagi tujuan pembangunan “Bangunan Sekolah Agama Negeri, Masjid/Surau, Maahad Tahfiz, Rumah Perlindungan dan Pusat Pemulihan Sekitar Selangor” yang bercanggah dengan perisytiharan Warta Kerajaan; Dan Dalam perkara surat-surat Pemohon bertarikh 4.4.2013 meminta Jabatan Agama Islam Selangor dan Pentadbir Tanah Daerah Kuala Selangor untuk menarik balik dan menangguhkan pengambilan tanah Pemohon; Dan 2 Dalam perkara hak asasi ke atas harta menurut Fasal 13 Perlembagaan Persekutuan; Dan Dalam perkara Semakan Kehakiman menurut Aturan 53 dan Aturan 92 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara Seksyen 23(2) Seksyen 25(2) dan perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964. BETWEEN UNITED ALLIED EMPIRE SDN BHD … APPLICANT AND 1. PENGARAH TANAH DAN GALIAN SELANGOR 2. PENTADBIR TANAH DAERAH KUALA SELANGOR 3. JABATAN AGAMA ISLAM SELANGOR 4. MAJLIS AGAMA ISLAM SELANGOR 5. LEMBAGA ZAKAT SELANGOR 6. KERAJAAN NEGERI SELANGOR ….RESPONDENTS 3 GROUNDS OF JUDGMENT (Judicial Review) A. BACKGROUND FACTS [1] This is an application for judicial review filed by the Applicant, a disgruntled and unhappy landowner whose land has been acquired by the State Authorities under the Land Acquisition Act 1960 (LAA). The Applicant was granted leave to commence judicial review proceeding against the Respondents on 22.1.2014. [2] This application for judicial review was filed by the Applicant against the Respondents for an alleged mala fide act in concert of acquiring the Applicant’s land on the grounds inter alia procedural impropriety, arbitrary abuse of power, legitimate expectation and mala fide abuse of the acquisition process to justify the means of acquisition by the ends of the acquisition. [3] By this judicial review proceeding, the Applicant sought numerous reliefs in the forms of certiorari, mandamus, declaration and monetary compensation. The reliefs sought are set as follows: 4 (1) suatu Perintah Certiorari membatalkan keputusan Responden- Responden dalam pengambilan tanah Pemohon (“Pengambilan tersebut”) yang dipegang di bawah GRN 49148 di Lot No. 682 (kini dikenali sebagai GRN 283902 Lot 682), Mukim Bestari Jaya, Daerah Kuala Selangor, Selangor Darul Ehsan (“Tanah tersebut”) dan suatu perintah Mandamus supaya Responden-Responden mengemukakan kesemua surat menyurat, suratcara dan semua rekod berkenaan permohonan dan asas bagi Pengambilan tersebut yang berada di dalam milikan mereka untuk mempastikan tujuan sebenar Pengambilan tersebut yang telah diisytiharkan dalam Warta Kerajaan bertarikh 24.5.2012 sebagai untuk “Tujuan Tapak Masjid Ar-Ridwan” yang bercanggah dengan tujuan yang diumumkan oleh Responden Ke-3, Responden Ke-4 dan Responden Ke-5 untuk tujuan pembangunan “Bangunan Sekolah Agama Negeri, Masjid/Surau, Maahad Tahfiz, Rumah Perlindungan dan Pusat Pemulihan Sekitar Selangor”; (2) suatu Perintah Certiorari membatalkan keputusan Responden Pertama dan/atau Responden Ke-2 di dalam award pampasan Borang H bertarikh 15.1.2013 yang diserahkan kepada Pemohon pada 23.1.2013 dan selanjutnya membatalkan 5 Pengambilan tersebut yang dibuat di bawah s. 3(1)(a) Akta Pengambilan Tanah 1960 (“APT 1960”); (3) suatu Perintah Certiorari membatalkan keputusan Responden Pertama dan/atau Responden Ke-2 dalam meneruskan Pengambilan tersebut melalui proses milikan formal dengan mengeluarkan Borang K bertarikh 18.3.2013 yang diserahkan kepada Pemohon pada 29.3.2013 dan selanjutnya membatalkan proses Pengambilan tersebut yang dibuat di bawah s. 3(1)(a) APT 1960; (4) suatu Perintah Mandamus mengarahkan Responden Pertama menarik balik Pengambilan tersebut atas alasan yang telah diisytiharkan dalam Warta Kerajaan bertarikh 24.5.2012 sebagai untuk “Tujuan Tapak Masjid Ar-Ridwan” jika tujuan sebenar Pengambilan tersebut adalah untuk pembangunan “Bangunan Sekolah Agama Negeri, Masjid/Surau, Maahad Tahfiz, Rumah Perlindungan dan Pusat Pemulihan Sekitar Selangor”; (5) suatu Perintah Mandamus mengarahkan Responden- Responden, jika ingin melanjutkan Pengambilan Tanah tersebut, supaya membuat pengisytiharan yang sebenarnya 6 iaitu untuk tujuan pembangunan “Bangunan Sekolah Agama Negeri, Masjid/Surau, Maahad Tahfiz, Rumah Perlindungan dan Pusat Pemulihan Sekitar Selangor” dan bukan untuk “Tujuan Tapak Masjid Ar-Ridwan”; (6) suatu Perintah Mandamus mengarahkan Responden Pertama, jika ingin melanjutkan Pengambilan Tanah tersebut untuk tujuan pembangunan yang lain dari “bagi maksud awam” di bawah s.3(1)(a) APT 1960, supaya membuat pengambilan baru di bawah s. 31(1)(b) APT 1960 dan selanjutnya mematuhi peruntukan lain dalam APT 1960; (7) suatu Perintah Certiorari membatalkan keputusan Responden Ke-2, Responden Ke-3 dan Responden Ke-4 mengambil Tanah tersebut atas perisytiharan untuk ‘Tujuan Tapak Masjid Ar- Ridwan” di bawah s.3(1)(a) APT 1960; (8) suatu Perintah bahawa segala prosiding lanjut dalam Pengambilan tersebut digantung, terutama sekali proses milikan formal, catatan pengambilan dalam hakmilikdaftar serta apa-apa juga tindakan lanjutan lain yang berkenaan Pengambilan tersebut sehingga pelupusan akhir dan muktamad permohonan untuk Semakan Kehakiman ini; 7 (9) satu deklarasi bahawa Pengambilan tersebut yang diisytiharkan sebagai untuk “Tujuan Tapak Masjid Ar-Ridwan” di bawah s.3(1)(a) APT 1960 adalah ‘mala fide’, melampaui dan bercanggah dengan tujuan sebenar pengambilan Tanah tersebut; (10) satu deklarasi bahawa keseluruhan proses Pengambilan tersebut dari Borang D sehingga pengeluaran Borang K adalah tidak sah dan terbatal; (11) satu deklarasi bahawa award pentadbir tanah dalam Borang H bertarikh 15.1.2013 yang diserahkan kepada Pemohon pada 23.1.2013 adalah tidak sah dan terbatal; (12) satu deklarasi bahawa tidak ada keperluan untuk membuat Pengambilan tersebut bagi “Tujuan Tapak Masjid Ar-Ridwan” kerana pelan pembangunan Pemohon telahpun membuat peruntukan bagi Rizab Masjid; (13) satu deklarasi bahawa Pengambilan tersebut yang merangkumi keseluruhan tanah seluas 26.280 ekar (1,144,782 kaki persegi) adalah melampaui keperluan bagi kegunaan 8 sesebuah masjid yang lazimnya hanya memerlukan tanah seluas tidak melebihi satu ekar dan oleh itu menjadi tidak sah dan terbatal; (14) satu deklarasi bahawa Responden-Responden telah berkonspirasi dalam pengambikan Tanah tersebut dengan mengisytiharkannya “bagi maksud awam” di bawah s.3(1)(a) APT 1960 sedangkan Pengambilan tersebut adalah untuk tujuan pembangunan masa depan Responden Ke-3 hingga Responden Ke-5 dan oleh itu Pengambilan tersebut adalah tidak sah dan terbatal; (15) satu deklarasi bahawa Responden-Responden telah berkonspirasi dalam membuat Pengambilan Tersebut secara ‘mala fide’ dengan mengisytiharkannya bagi “Tujuan Tapak Masjid Ar-Ridwan” untuk menekan nilai pampasan yang perlu dibayar kepada Pemohon dan oleh itu Pengambilan tersebut adalah tidak sah dan terbatal; (16) satu deklarasi bahawa Responden Pertama dan Ke-2 telah berlaku ‘mala fide’ dengan menyalahgunakan peruntukan APT 1960 apabila memberikan pampasan dalam Borang H tanpa mengambil kira kerugian-kerugian yang ditanggung oleh 9 Pemohon akibat daripada kehilangan Projek Komersial Bersepadu (“Projek UAE”) pembangunan Pemohon; (17) suatu deklarasi bahawa Pemohon mempunyai jangkaan sah (‘legitimate expectation’) bahawa setelah mencantumkan tanah tersebut dan tanah bersebelahannya yang dipegang di bawah GRN 93904 di Lot No. 514, Mukim Bestari Jaya, Daerah Kuala Selangor, Selangor Darul Ehsan (“Lot 514”) untuk tujuan pembangunan Projek UAE tersebut tidak boleh diganggu oleh pihak-pihak lain termasuk Responden Ke-3 hingga Responden Ke-5; (18) suatu deklarasi bahawa Pemohon mempunyai jangkaan sah (‘legitimate expectation’) bahawa Pengambilan tersebut perlulah mengambil kira dan mematuhi semangat sebenar APT 1960 untuk tidak mencederakan, merugikan dan menindas Pemohon sebagai pemilik Tanah tersebut yang sah; (19) suatu deklarasi bahawa Pemohon mempunyai jangkaan sah (‘legitimate expectation’) bahawa Pengambilan tersebut tidak boleh bercanggah dengan semangat sebenar Fasal 13 Perlembagaan Persekutuan dan penindasan serta pelanggaran oleh Responden-Responden terhadap hak asasi Pemohon ke 10 atas hartanya menjadikan Pengambilan tersebut tidak sah dan terbatal; (20) suatu deklarasi bahawa prodising lanjut dalam Pengambilan tersebut terutama sekali proses milikan formal, catatan pengambilan dalam hakmilikdaftar serta apa-apa juga tindakan lanjutan lain yang berkenaan Pengambilan tersebut adalah tidak sah dan terbatal; (21) bahawa segala arahan dan perintah yang perlu berikutan hendaklah diberi (22) pampasan ditaksirkan di atas pembatalan Pembilan tersebut; [4] The Applicant (United Allied Empire Sdn Bhd) is the owner of Lot 682 GRN 283902, Mukim Bestari Jaya, Daerah Kuala Selangor (“Acquired Lot”) measuring at 26.281 acres. The Applicant implicates all the 1st to the 6th Respondents {Pengarah Tanah dan Galian Selangor (1st Respondent), Pentadbir Tanah Daerah Kuala Selangor (2nd Respondent), Jabatan Agama Islam Selangor (3rd.Respondent), Majlis Agama Islam Selangor (4th Respondent), Lembaga Zakat Selangor (5th Respondent) & 11 Kerajaan Negeri Selangor (6th Respondent)} as parties responsible for the acquisition of the acquired land. This Court shall not delve into the involvements of each Respondents to the acquisition owing to the fact that this Court, even at this preliminary juncture, finds that the Applicant’s case to be untenable and without merits. Suffice that this Court saves time and costs in addressing directly the substance of the present case. [5] However, before considering the Applicant’s application, it is only appropriate for this Court to just summarize briefly the well settled legal principles relating to judicial review proceeding. [6] The grounds upon which administrative action is capable of challenge are propounded by Lord Diplock in Council of Civil Service Unions & Ors. v. Minister of Civil Service [1985] AC 374. In this case, the House of Lords has redefined the law and the scope of judicial review by classifying the court’s judicial control or supervisory control over administrative actions or decisions of the executive bodies or authorities into three heads. On the classification of the three heads, Lord Diplock speaking for the House of Lords remarked: 12 “One can conveniently classify under three heads the grounds on which administrative action is subject to control any judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further observation on a case by case basis may not in course of time add further grounds.” [7] The Courts in Malaysia have since adopted and applied this principle of law in Administrative law. In the case of MINISTER OF HOME AFFAIRS, MALAYSIA v. PERSATUAN ALIRAN KESEDARAN NEGARA [1990] 1 CLJ (Rep), 186 the Supreme Court has applied the principle enunciated by Lord Diplock in Council of Civil Service Unions [1985] AC 374 . The Supreme Court held inter alia: [1] Applying the principles enunciated by Lord Diplock in Council of Civil Service Unions & Ors. v. Minister of Civil Service, there are 3 grounds upon which administrative action is subject to judicial review. They are: 13 (i) “illegality” - the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it; (ii) “irrationality” - decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it; (iii) “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be effected by the decision - this is because susceptibility to judicial review under this head covers also failure by the administrative tribunal to observe procedural rules expressly laid down in the legislative instrument by which its jurisdiction is conferred even where the failure does not involve any denial of natural justice. [8] This Court is also guided by the decision of the Court of Appeal in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377: 14 “It has been accepted by the courts too that…the court could still go behind the decision, where the allegations raised were to the effect that the decision maker had transgressed principles of procedural impropriety, illegality or irrationality (may be even proportionality) in arriving at the impugned decision.” In those circumstances, it was open to the court to extend its scrutiny into the area of the merits or justification behind that decision.” [9] Reverting back to the Applicant’s grievances over the acquisition of its land, this Court had mentioned earlier that the Applicant had mounted serious allegations of mala fide act, procedural impropriety, arbitrary abuse of power, mala fide abuse of the acquisition process and false declaration of the purpose of the acquisition in the Government Gazette against the Respondents acquiring the Acquired lot. 15 [10] This Court must also mention one pertinent fact with regards to the Applicant’s knowledge of the real purpose of acquisition in which the Applicant claimed that the Applicant was never informed of the real purpose of the acquisition, despite making various enquiries to the Respondents. The Applicant also claimed that only upon various searches made, that the Applicant subsequently discovered that the 1st Respondent had made a declaration in the State Government Gazette that the Acquired is to be compulsorily acquired for a public purpose under s.3(1)(a) LAA 1960 for “Tujuan Tapak Masjid Ar- Ridwan”. The true fact is, even prior to the acquisition of the Acquired Lot, the 5th Respondent has erected a Notice Board on the Acquired Lot indicating that the lot is being developed for “Masjid/Surau, Maahad Tahfiz, Rumah Perlindungan dan Pusat Pemulihan Sekitar Selangor”. Thus, even before the acquisition took place, the Applicant knew of the extent of the program intended to be developed upon the Acquired Lot. This is clearly shown in the Applicant’s letter dated 23.4.2012 to the 5th Respondent demanding that the notice board be removed. (Gazette Notification No.2198, notification of the acquisition was published on 24.5.2012) 16 [11] Vide Gazette No. 2198 dated 24.5.2012 (“Gazette”) that the State Authorities decided under Section 3(1)(a) of the Land Acquisition Act (“Act”) that the Acquired Lot shall be acquired for: “permohonan pengambilan tanah di bawah seksyen 3(a)(a) Akta Pengambilan tanah 1960 (APT) untuk tujuan tapak Masjid Ar Ridwan (lama) Bestari Jaya geran 49148 Di Lot 682 (kini dikenali sebagai GRN 283902) Mukim Bestari Jaya Daerah Kuala Selangor” [12] As said earlier, the Applicant’s judicial review application is heavily or mainly premise on the allegations of abuse and mala fide conduct of the acquisition in that the Gazette has only mentioned that the purpose of the acquisition is merely for “tapak Masjid Ar Ridwan ” or space or site for Masjid Ar-Ridwan, instead of a Masjid with full amenities for education, welfare and rehabilitation as indicated in the 5th Respondent’s Notice Board. [13] It is on this premise that the Applicant contends that to a certain expect, the Applicant was deceived or fooled and deprived of its land, 17 notwithstanding the fact that the alleged ‘difference’ contended, brought forth the same meaning and public benefit and in fact an increase of public benefit. [14] The Applicant also contends that the acquisition has deprived the Applicant from its legitimate expectation to conduct and perform the UAE Development Project (“UAE Project”) on the Acquired Lot. However, it is an undisputed fact that the plan for the UAE Project has not even been approved by the proper authorities. [15] Forms A and D in the acquisition have duly been published in the Gazette and the acquisition has sufficiently been brought to the attention of the Applicant. Forms E, F, G and H have duly been served and responded to by the Respondent. B. CONCLUSIVE VESTING OF THE PROPERTY UPON ISSUANCE OF FORM K [16] It is the Respondents’ case that upon issuance of Form K, which is the time in which the State Authorities take “formal possession” of the 18 land under Sections 22 and 23 of the Act that the acquisition is completed and the owner of the Acquired Lot no longer has any rights over the Acquired Lot except for compensation. This is further solidified with the conjunctive reading of Sections 35 and 66 of the Act. Sections 22 and 23 of the Act respectively reads: “Formal possession 22.(1) The Land Administrator shall take formal possession of any scheduled land by serving upon the occupier thereof or, if he cannot be found, by posting thereon, a notice in Form K. (2) A copy of the list of lands gazetted under subsection 8(1), or any relevant part thereof, shall be included as a schedule to the notice in Form K. (3) Upon taking possession of land under subsection (1) the Land Administrator shall also serve a copy of the notice in Form K upon: 19 (a) the registered proprietor of the land, where he is not the occupier; and (b) the proper registering authority, where he is not the Land Administrator himself. Entry in register 23. The proper registering authority, upon receipt of the notice in Form K, or the Land Administrator of his own motion after completing Form K, shall, upon the register document of title or other appropriate record in his possession as specified in subsection 9(2) or (3), make with respect to any scheduled land a memorial: (a) that the whole of such land has been acquired and has vested in the State Authority or, in the case of a parcel of a subdivided building, in the person or corporation on whose behalf the parcel has been acquired; or (b) that so much of the land as is specified in the last column of the schedule to such Form has been acquired. 20 [17] It has already been decided as precedent by the Court of Appeal in the case of Ishmael Lim Abdullah v Pesuruhjaya Tanah Persekutuan & Another [2014] 7 CLJ 862 that the issuance of Form K is sufficient proof of a complete acquisition even without endorsement of the acquisition on the title as per Section 23 of the Act and that the endorsement under Section 23 is merely a formality. [18] In the same Court of Appeal decision, the Court of Appeal has decided that a land owner would cease to have any rights over his land at the time formal possession (in the meaning of Section 22, issuance of Form K) was taken by the State Authorities. [19] Thus, it naturally entails in the present case that the Applicant no longer has any rights over the Acquired Lot to contend any challenges against the acquisition post-issuance of Form K as the Acquired Land has completely been vested onto the State Authorities. [20] This Court is minded that the Applicant attempted to distinguish the Court of Appeal’s decision in Ishmael Lim’s case with the present 21 case on the grounds of certain factual differences. In that in Ishmael Lim, the Court of Appeal had to decide on the defeasibility of a title and the rights of a registered proprietor to pass good title to a transferee after the issuance of Form K in the acquisition. This Court however by and large is not persuaded by the demarcation drawn by the Applicant. Be that as it may the facts may differ, but the essence and core principles of the case (being, the termination of ownership, completion of acquisition, complete possession and vesting of ownership upon issuance of Form K) remains relevant and applicable in the present case as the principle determines if the Applicant even has anymore rights to contend against the acquisition (except for compensation) when the acquisition has become complete. [21] A simple reading of the decision would reveal that the Court has specifically delved into the effect of the issuance of Form K in acquisitions and not merely on the issue of defeasibility of title. Mah Weng Kwai JCA, delivering the decision of the Court of Appeal has held: 22 “Upon the issuance of Borang K in 1974, the land had been vested in the State Authority notwithstanding that there was an omission to endorse the memorial on the title, which was a requirement under s. 23 of the Act. The requirement for an endorsement of the memorial was a formality and the omission to do so did not invalidate the acquisition process. As such, the purported transfer of the land in 1975 to the appellant's father and in 1992 to the appellant was void and ineffective. The acquisition process had ended in 1974… We are of the view that upon a closer reading of ss. 22 and 23 of the Act it is clear that once formal possession of the land has taken place the land vests with the State Authority… The acquisition process is deemed ended and final and the State Authority cannot resile from its position. Likewise in this case, once Borang K had been issued giving notice that possession has been formally taken of the land under s. 22 of the Act it signalled the completion of the acquisition 23 process and that the ownership of the land by the proprietor at the material time had terminated.” [22] Thus even at this early juncture, this Court finds that the Applicant no longer has any rights to challenge the acquisition as the acquisition is already complete and the Acquired Lot has already been taken into formal possession and vests onto the State Authority. C. THE ACQUISITION WAS MADE BONA FIDE AND THERE WAS NO CHANGE OF PURPOSE OF ACQUISITION [23] As prelude, this Court refers to the relevant provision in Section 3(1)(a) of the Act which reads: “3. (1) The State Authority may acquire any land which is needed— (a) for any public purpose;” [24] Therefore, at the core of an acquisition, is public’s benefit and interest. The Applicant has at lengths contended that the alleged change of purpose was proof of an abuse of power and mala fide 24 intent by the Respondents. It is a given that both parties would rely on the trite principle propounded in the case of Minister of Home Affairs, Malaysia v Persatuan Aliran Kesedaran Negara [1990] 1 CLJ (Rep) 186 in which the Supreme Court has held that “illegality”, “irrationality” and “procedural impropriety” are grounds to challenge an Executive Decision. However, for added precision and relevance to this case, this Court is guided by the more recent case of Ahmad Saman v Kerajaan Negeri Kedah [2004] 1 CLJ 211 CA in which the Court of Appeal has laid down four (4) grounds to challenge a land acquisition. Those grounds being: “(a) that the acquiring authority has misconstrued its statutory powers; (b) that the purpose stated in the Declaration does not come within S. 3; (c) where it can be shown that the acquiring authority has acted in bad faith; or (d) that the acquiring authority has acted contrary to law” 25 [25] Now, having in mind that all of the Applicant’s contentions lean on the presupposition of the purpose of which the acquisition was conducted, limbs (b) and (c) of the above precedent becomes verily relevant. The symbiosis between the element of bad faith and also the purpose of acquisition is further explained by the Court of Appeal in the same decision above: “Mala Fides The second issue is whether or not the State Government acted mala fide i.e in bad faith when acquiring this property… See also the judgement of this Court in S. Kulasingam & Another v Commissioner of Lands, Federal Territory & Ors [1982] CLJ (Rep) 314;[1982] 1 MLJ 204,2011. In an old English case Vaughan Williams LJ said in the Court of Appeal: In my judgement, it is not true to say that the corporation have taken this land which they have taken with the object of using it for the purposes authorized by the legislature…You are acting mala fide if you are 26 seeking to acquire and acquiring lands for a purpose not authorized by the Act of Parliament” [26] Thus, it matters not the label or nomenclature used for the purpose of acquisition. It makes no difference unless the actual purpose falls outside the ambit of “public purpose”. And the Respondents have indeed acquired the land for a public purpose and not for any private use or enjoyment. Suffice that the purpose comes within Section 3 of the Act. It makes no difference to the Applicant whether the acquired land is used for one masjid or a masjid with full amenities. [27] It remains that these amenities are immensely beneficial for the public at large. Whether the project utilizes the totality of the land to build a masjid (strictly for prayers) to the bream, or a Masjid with complete amenities, it does not derail from the essence that the acquisition was made for a public purpose. In fact, the development plan for a Masjid with full amenities for education, welfare and rehabilitation adds tremendous value for public benefit rather than a single place of worship. 27 [28] There is no shift of anything here. The core of the acquisition remains intact and constant. That verily, the acquisition is for a public purpose. [29] The Applicant has vigorously relied upon the case of United Development Company Sdn Bhd v The State Government of Sabah & Anor [2010] 5 CLJ 986 in contending that the acquisition in the present case contras the law in that the development conducted has changed from the specific purpose in which the acquisition was made. The High Court in United Development has decided the following: “The spirit of the LAA is to allow the State Government to acquire lands for specific public purposes. It does not give the State Government carte blanche to deal with the acquired lands in any manner it deems fit post acquisition. If for instance a piece of land was acquired for building a hospital it cannot be used as a dump site” [30] The Principle above is superbly sound. Indeed the Act does not confer to the authorities, a blank card or carte blanche to do as they 28 please. The excerpt above even goes to comment on the authority of the State Government after the acquisition was made, in that an acquired lot for the public’s healthcare benefits cannot be abused to be a dump site which would instead go to the public’s detriment. This principle is sound and this Court agrees. But notwithstanding the correctness of these principles, the same principles do not go in favour of the Applicant’s case at all. [31] The excerpt referred to by the Applicant is sound as principle but a far cry from any similarities to the facts of the present case. [32] The example given by the learned JC in United Development was the blatant change of purpose of a healthcare facility to a garbage disposal site. The change of purpose there is so vast. In that case, the example given entails a derailment of the public purpose for public benefit, to be public detriment. Instead of providing the specific purpose of healthcare to the populace (which is to the public’s benefit) the derailment into a dump site instead turns the acquisition for the purpose of public detriment. The difference between the benefit of a hospital and the detriment of having a dumping site 29 (which would cause public nuisance, discomfort and animosity from a multitude of pollutions) is obvious. [33] But there were no such change of purpose in the present case. It is reiterated that a masjid is not merely a place of worship. It is common that the amenities and components of a mosque also comprises of a place of education, welfare and rehabilitation. It is not uncommon that a Masjid would have an educational institution within its compound. The components and amenities of a Masjid are not necessarily confined to a space for prayers. It is wider than that. A Masjid is a not only centrepiece for religious worship, it is also a centre for education and community. [34] The essence of the purpose remains intact. A Masjid is still being built, with addition of amenities which would, in fact, further benefit the public, in the sphere of education, welfare, and rehabilitation. 30 [35] Contrary to the Applicant’s supposition, the erection of the Notice Board by the 5th Respondent is in fact further proof of the non- confusion of the term “Masjid” in the gazette. [36] The signage was erected even before the acquisition was made. It is already made known and admitted to be known by the Applicant that the development project intended shall comprise of a Masjid with full amenities and facilities for education, welfare and rehabilitation. With this prior knowledge, then it entails that the Gazette should have not posed an iota of confusion to the Applicant. [37] Clearly here, there has never been any malice or concealment by the Respondents. There is no room for the Applicant to contend that they were led to believe that the Acquired Lot was acquired solely for a place of worship. [38] In fact with this prior knowledge, coupled with the Applicant’s knowledge that the scheduled land is considerably larger than the guideline by JAIS on the sizes of Masjid, it is common sense that the 31 Applicant would have known that the gazette would mean “Masjid” with full amenities for prayers, education, welfare and rehabilitation. [39] The Applicant knew the scheduled land was large and the Applicant knew that the development project intended is for a Masjid with full amenities. There is no confusion, no concealment and definitely no malice in the present case. [40] The Applicant besides contending on the non-existence of carte blanche discretion has also contended the exercise of statutory power in acquiring land must not neglect the interest of the land owner. Reference was made to the Federal Court decision in Pemungut Hasil Tanah, Daerah Barat Daya, Pulau Pinang v Ong Gaik Kee [1983] 2 MLJ 35. Verily, this principle is sound. It goes without saying that the authorities should not neglect the interest of the land owner. But even with that said, there is nothing in the present case that indicates that the Respondents have totally discounted the Applicant’s interest upon the land. 32 [41] First and foremost, for the Acquired Lot’ acquisition, notice and adequate compensation has already been paid. The only remnant of challenge that persisted in the present case is the purported mala fide purpose in which the scheduled land was acquired. [42] Secondly, as against the supposed interest leaning on the UAE Project, this Court must stress that the plan is merely plan. Not yet even a legitimate plan. It has not been put into action. It has not even been approved by the proper authorities. It is incredulous to assume that any legitimate interest (on a plan) can arise when the legitimacy of the plan has not been approved by the Authorities. Thus, no reference or reliance can be put upon Project UAE as an “interest”. [43] Thus, it is this Court’s decision that the acquisition was made bona fide and there was no change of purpose of acquisition. D. THERE ARE NO PROCEDURAL IMPROPRIETIES IN THE CONDUCT OF ACQUISITION OF THE ACQUIRED LOT 33 [44] The Applicant has voluminously contended on a supposed deprivation of rights to be heard and an alleged procedural impropriety merely on the ground that Forms A and D were not personally served to the Applicant. [45] First and foremost, against the allegation of deprivation of rights to be heard, this Court does not hesitate to dismiss this contention. It is undisputed and admitted by the Applicant itself that it has received, responded and in fact attended the enquiries which were called in Forms E, F, G, and H. The acquisition was well in the knowledge and awareness of the Applicant and the Applicant has admittedly responded to the acquisition. [46] Secondly, the supposition that a procedural impropriety arose from the non-service of Forms A and D is by and large a misinterpretation of the law. The governing sections for Forms A and D only requires the publication of the notices in the gazette. It is not a requirement under the Act that these notices be served personally to any interested parties. Sections 4 and 8 of the Act stipulate: 34 “4.(1) Whenever the State Authority is satisfied that any land in any locality in the State is likely to be needed for any of the purposes referred to in section 3 a notification in Form A shall be published in the Gazette. (2) The Land Administrator shall give public notice of any notification published under subsection (1) in the manner prescribed by section 52… 8.(1) When the State Authority decides that any of the lands referred to in section 7 are needed for any of the purposes referred to in section 3, a declaration in Form D shall be published in the Gazette.” [47] The Act has made a clear distinction in treatment between the Forms. Those forms which were served to the Applicant are required to be served by its governing Section. Section 11 (1) and (2), and Section 16(1) and (2) of the Act, explicitly stipulates that Forms E, F, G, and H must be served to interested parties of the land: 35 11. (1) The Land Administrator shall, in addition to giving public notice as required by subsection 10(1), in respect of all scheduled land specified in every notice in Form E, serve copies of such notice in the manner prescribed by section 53, upon— (a) the occupier of such land; (b) the registered proprietor of such land, where he is not the occupier thereof; (c) any person having a registered interest in such land; (d) any person whom he knows or has reason to believe to be interested therein: (2) The Land Administrator in any particular case may also, by service of a notice in Form F, require the registered proprietor of any land, specified in any notice in Form E, or any other person who may in the opinion of the Land Administrator have knowledge of the fact referred to therein, within such period as may be prescribed in such 36 notice to furnish a statement in writing of the information required by such Form. 16. (1) On making any award under subsection 14(1) in respect of any scheduled land the Land Administrator shall prepare and serve on each person interested in such land a notice in Form H. (2) Every notice in Form H shall include an extract from the written award of the Land Administrator in Form G, relating to the land in which the person to whom such notice is addressed has an interest. [48] The governing section for Forms A and D has explicitly omitted any reference to any requisite of a service or any reference to the defining section of a service under Section 53 of the Act. [49] Thus, having Forms A and D only required to be gazetted, then clearly the Applicant’s contention cannot stand. And it is already trite law that a gazette is a prima facie evidence of written law (see Dato’ 37 Seri Anwar Ibrahim v Perdana menteri Malaysia & Anor [2010] 5 CLJ 369 FC) and therefore, the Applicant cannot feign ignorance to the law and contend of not being aware of the acquisition. It is also trite that a gazette shall constitute sufficient notice. (see Section 18(3) of the Interpretation Act 1948 And 1967 (Consolidated and Revised 1989; Abdul Aziz Mohd Alias v Timbalan Ketua Polis negara, Malaysia & Anor [2010] 3 CLJ 643 FC). Therefore, sufficient notice of Forms A and D has already made to the Applicant. E. THERE IS NO LEGITIMATE EXPECTATION FOR THE APPLICANT TO CLAIM [50] The Applicant in its bid to salvage its case also argued that owing from the Applicant’s UAE Development Plan the Applicant has a legitimate expectation to not be deprived of the usage of the Acquired Lot. [51] The circumstances which raises a Legitimate Expectation has been succinctly encapsulated in the case of Syarikat Bekerjasama-sama 38 Serbaguna Sungai Gelugor Dengan Tanggungan Berhad v Majlis Perbandaran Pulau Pinang [1996] 3 CLJ 335 at pages 379 – 381: “The phrase "legitimate expectation" may be used in various distinct senses. It may be used to denote a substantive right which is established when there is a clear representation by the administrator or public body which could be reasonably relied upon by the claimant. Employed in this sense, the doctrine is akin to an estoppel. Secondly, legitimate expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness. In this sense, the law recognises that the interest cannot properly be withdrawn or denied without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. 39 Thirdly, the concept of legitimate expectation may be used to refer to the fair procedure itself. In other words, it is contended that the claimant has a legitimate expectation that the public body will act fairly towards him. The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice” [52] However, the present case does not fall within the application of any of the above circumstances. The UAE Project has not even been approved by the Authorities yet. It is merely a plan. There is nothing concrete in a plan to allow the Applicant to claim Legitimate Expectation. 40 [53] It is preposterous that Legitimate Expectation would arise when the legitimacy of the Plan has not been approved by the appropriate body. [54] There is nothing at all to indicate that the Authorities have represented any acceptance or affirmation to the UAE Plan that the Applicant could rely upon. [55] As has been decided earlier, there is no procedural impropriety. Therefore, the Applicant was not deprived of a legitimate expectation to a fair procedure. [56] At the very essence of this contention, the UAE Project being bare and still not approved by the Authorities, cannot be an ‘interest’ to be asserted in the first place to defeat a legitimate acquisition for the proper public purpose. [57] It is pertinent for this Court to highlight an interesting precedent relied upon, albeit selectively, by the Applicant. Besides the highlighted portion of the decision in the case of Pendor Banger & Ors v Ketua 41 Pengarah Jabatan Alam Sekitar & ors [2011] LNS 788 quoted in the Applicant’s submission, the decision continues to read: “However, whether the expectation of the Applicants is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the Applicant’s perception but in the larger public interest where other more important considerations may outweigh what otherwise have been the legitimate expectation of the Applicants” [58] And this is exactly how this Court has decided on the legitimacy of the Applicant’s alleged expectation. The legitimate expectation in the lens of the larger public interest (one interest with more important considerations) definitely outweighs the Applicant’s UAE plans which still remain bare and not approved by the authorities. [59] Thus, it is this Court’s decision that no legitimate expectation can arise from the UAE Project and be relied upon by the Applicant. 42 F. COURT’S DECISION [60] In light of all of the above findings, it is this Court’s decision that the Applicant has ultimately failed to prove its case. [61] This Court hereby dismisses the Applicant’s Application. On the issue of costs [62] Having heard the submission from the learned counsels for the Applicant and the Respondents, this Court hereby orders the Applicant to pay the Respondents a global sum of RM20,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 3rd day of December 2015 43 For the Applicant: Tetuan Lee Hishammuddin Encik Rosli bin Dahlan Encik Bahari Yeow Cik Ho Ai Ting For the 4th & 5th Respondent: Tetuan Aishah Kama & Sabri Puan Siti Rahimah For the 1st, 2nd, 3rd & 6th Respondent: Penasihat Undang-Undang Negeri Selangor Tuan Ahmad Fuad bin Othman

Tika 2.6.0

22-1245-2010

PLAINTIF 1. TALAM CORPORATION BERHAD 2. DEVELOPMENT SDN BHD DEFENDAN 1. BANGKOK BANK BERHAD 2. RAJENDRAN PALANIAPPAN

03/12/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=59e3b705-c722-45db-b23b-2afaac598c2f&Inline=true

Microsoft Word - 22-1245-2010 Talam Corporation Berhad (Supplementary Grounds Of Judgment On Costs) 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN CIVIL SUIT NO: 22 – 1245 – 2010 BETWEEN 1. TALAM CORPORATION BERHAD 2. DEVELOPMENT SDN. BHD … PLAINTIFFS AND 1. BANGKOK BANK BERHAD 2. RAJENDRAN PALANIAPPAN … DEFENDANTS (SUPPLEMENTARY GROUNDS OF JUDGMENT ON COSTS) [1] This Court has been urged by the counsel for the Defendants to award costs on the following basis:- 2    (i) Party and party costs as between the 1st Plaintiff and the Defendants; (ii) Costs on an indemnity basis as between the 2nd Plaintiff and the 1st Defendant; and (iii) Party and party costs as between the 2nd Plaintiff and 2nd Defendant. [2] However, it was submitted by the Defendants that if this Court is minded to award the costs between the 2nd Plaintiff and the 1st Defendant as per basis (ii) namely by awarding costs to the 1st Defendant on an indemnity basis then it would negate an extensive consideration of the party and party costs as between the Plaintiffs and the 2nd Defendant and also the 1st Plaintiff and the Defendants. [3] It was also submitted on behalf of the Defendants that the nature of the Plaintiffs’ claim and their conduct in respect of the trial of the action warranted the granting of costs on an indemnity basis as between the Plaintiff and the Defendants. 3    2nd Plaintiff is contractually obligated to pay the 1st Defendant’s legal costs and expense on an indemnity basis [4] It was contended by the Defendants that the 2nd Plaintiff is contractually obligated to pay the costs of the 1st Defendant on an indemnity basis by virtue of the Charge Annexure. The Defendants contended that the execution of Charge instrument in favour of the 1st Defendant vide Form 16A Charge dated 21 November 2005 (Presentation No. 92377/05) (“Charge”) and the Annexure to Form 16A Charge dated 28 November 2005 (Presentation No. 92377/05) (“Annexure”) creates and governs the legal and contractual relationship between the 2nd Plaintiff and the 1st Defendant. Thus, it is the submission of the Defendants that 2nd Plaintiff’s legal and contractual obligation are spelt out within perimeter and boundary of the Charge Annexure. On this contention, the Defendants sought reliance on two cases, namely; i. V Letchumanan v. Central Malaysian Finance Bhd. [1980] 2 MLJ 96 4    The Federal Court held that the contents of the Charge consisting of the statutory form and the annexure, read as a whole, set out the actual agreement between the parties. ii. Standard Chartered Bank Malaysia Bhd. v. Tunku Mudzaffar bin Tunku Mustapha [2005] 1 MLJ 604 Mohd Hishamudin J explicitly stated that, “a Charge Annexure is part of the charge instrument” and held that as long as the clauses in the annexure are in line with the National Land Code, it would be enforceable between both parties. [5] In support of its entitlement for costs on an indemnity basis from the 2nd Plaintiff, the Defendants have placed reliance on section 12.28 of the Annexure. Section 12.28 of the Annexure reads as follows: “SECTION 12.28 INDEMNITY (a) The Chargor shall nor do or omit or suffer to be done any act, matter or thing in or respecting the Said Land which contravenes the provisions of this Charge or any Act, Ordinance, Enactment, Order, rule, regulation or by-law now or hereafter affecting the same and the Chargor shall at 5    all times (hereafter indemnify and keep indemnified the Lender against all losses, actions, proceedings, costs, expenses, claims and demands in respect of any such act, matter or thing done or omitted to be done in contravention of the said provisions. (b) In addition and without prejudice to the power, rights and remedies conferred on the Lender herein, the Chargor shall indemnify the Lender against any loss or expense (including but not limited to legal expense on a solicitor and own client basis) which the Lender may sustain or incur as a consequence of any default in payment by the Chargor of any sum due hereunder including (but not limited to) any interest or fees paid or payable on account of or in respect of any borrowed or deposit from third parties in order to maintain the amount in default or in liquidating or re-employing such funds or deposits.” [6] It was argued by the Defendants that section 12.28 of the Annexure has explicitly and unequivocally provides that the 2nd Plaintiff must indemnify the 1st Defendant in full of any legal fees incurred by the Defendants in defending this action as this action (which was filed by the 2nd Plaintiff against the Defendant) was premised on the charge document executed by the 2nd Plaintiff as registered owner of the 6    property to the 1st Defendant as security for the loan facility granted to Keuro Leasing. [7] The Defendants had therefore urged this Court to give effect to the intentions of parties to the contract. It was submitted by the Defendants that this Court is bound and must give effect to intentions of parties in the contract. (See: i.United Overseas Bank Ltd v Sin Leong Ironbed and Furniture Manufacturing Co (Pte) Ltd & 5 Ors [1988] 1 MLJ 479 ii. Oversea-Chinese Banking Corp Ltd v Sarlian Trading Sdn Bhd [1994] MLJU 556 iii. Malayan Banking Bhd v Wembley Industries Holdings Bhd [2012] MLJU 91 iv. a Essar Steel Ltd v Bayerische Landesbank And Others [2004] 3 SLR 25) [8] The Defendants have also contended that the provision stipulated under section 12.28 of the Annexure is not the only provision entitling the 1st Defendant to be indemnified by the 2nd Plaintiff of any losses or expense including legal expenses incurred by the 1st Defendant arising from the Charge instrument. Section 12.11 of the Annexure also allows the 1st Defendant to deduct such costs and expenses incurred by the 1st Defendant against the excess sale proceeds 7    obtained through the auction of the Property, the sum of which is currently retained by the 1st Defendant pending the disposal of this suit so that the 2nd Plaintiff does not need to incur any additional out- of- pocket expenses should such an order as to costs be awarded to the 1st Defendant. [9] The 1st Defendant further argued that the Defendants had defended this suit merely to protect and enforce its rights as a Chargee to the property under the Annexure, only to be sued by the Plaintiffs. The Charge Annexure being a clear and an unambiguous contract, must be given full effect by this Court. The case of Royal Selangor Golf Club v. Anglo-Oriental (M) Sdn. Bhd. [1990] 1 CLJ 995 was brought to this Court’s attention. Plaintiffs’ conduct during the whole trial justify costs on indemnity basis [10] The counsel for the Defendants had also urged this Court to award the Defendants costs on an indemnity basis based on the Plaintiffs’ conduct during the whole trial in which the Defendants had contended that the Plaintiffs had conducted themselves in an abhorrent and 8    scandalous manner. The Defendants have described the abhorrent and scandalous conducts during the whole trial as follows: i. The Plaintiff had blatantly disregard pre-trial directions as well as orders made in Court during trial by filing pertinent documents only days before the trial date and by attempting to produce additional bundles of documents even after this Honourable Court had barred them from doing so; ii. The Plaintiff had filed various and voluminous bundles of documents which do not hold up to scrutiny during the course of the trial in an attempt to overwhelm the Defendants and had inevitably wasted this Honourable Court’s time as the originals were never produced and/or were inconsistent with its copies and/or the makers of such documents were not called; iii. The Plaintiff had included last minute witnesses in order to supplement the loopholes in the Plaintiffs’ case even though such witnesses had no personal knowledge on the same and had only served witness statements for so-called subpoenaed witnesses on the actual day of examining the said witnesses; 9    iv. The Plaintiffs’ counsel had, on a variety of occasions, answered questions for the Plaintiffs’ own witnesses during the Defendants’ cross examination of the same, instructed the Defendants’ counsel to ask certain cross-examination questions and generally interrupted the Defendants’ counsel’s line of questioning on multiple occasions; and v. The Plaintiffs had attempted to withdraw purported original documents which were marked as Exhibits ID-6 to ID-9 upon the Defendants objection to the authenticity of the same, as they did not appear to be documents that were approximately Nine (9) years old and appeared to be freshly printed. [11] The Defendants had also submitted that the above conducts of the Plaintiffs had not only caused tremendous strain on the Defendants’ solicitors in responding and constantly objecting to the conduct of the Plaintiffs’ solicitors but is also evidence of the desperate, disingenuous and mischievous effort by the Plaintiffs to win at all costs without due regard to the ends of justice and the law. Entailing which, the Defendants contend that this was extremely prejudicial to the Defendants who had to constantly change their strategy and 10    adapt to the Plaintiffs’ sudden onslaught of additional documents, witnesses and witness statements. [12] The counsel for the Defendants had placed his reliance on the following cases: (i) An English case of Bahram Noorani v. Richard Calver [2009] EWHC 592 (QB) In Bahram Noorani, Coulson J in considering the applicable principles in determining costs opined as follows:- “Indemnity costs are no longer limited to cases where the court wishes to express disapproval of the way in which litigation has been conducted. An order for indemnity costs can be made even when the conduct could not properly be regarded as lacking in moral probity or deserving of moral condemnation: see Reid Minty v Taylor [2002] 1 WLR 2800 ). However, such conduct must be unreasonable “to a high degree. ‘Unreasonable’ in this context does not mean merely wrong or misguided in 11    hindsight”: see Simon Brown LJ (as he then was) in Kiam v MGN Limited No2 [2002] 1WLR 2810. In any dispute about the appropriate basis for the assessment of costs, the court must consider each case on its own facts. If indemnity costs are sought, the court must decide whether there is something in the conduct of the action, or the circumstances of the case in question, which takes it out of the norm in a way which justifies an order for indemnity costs: see Waller LJ in Excelsior Commercial and Industrial Holdings Limited v Salisbury Hammer Aspden and Johnson [2002] EWCA (Civ) 879 . Examples of conduct which has lead to such an order for indemnity costs include the use of litigation for ulterior commercial purposes (see Amoco (UK) Exploration v British American Offshore Limited [2002] BLR 135 ); and the making of an unjustified personal attack by one party by the other (see Clark v Associated Newspapers [unreported] 21st September 1998 ). Furthermore, whilst the pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the 12    pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order: see, for example, Wates Construction Limited v HGP Greentree Alchurch Evans Limited [2006] BLR 45.” (ii) The Federal Court’s decision in Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181. Gopal Sri Ram FCJ delivering the judgment of the Federal Court opined : “What appears clear is that the discretion to award costs on an indemnity basis is unfettered. All that is required is that it must be an appropriate case warranting an award on that basis.” In the case of Mirzan Bin Mahathir v Star Papyrus Sdn Bhd [2000] 6 MLJ 29, the defendant had argued that costs on a full indemnity basis should not have been ordered by the learned SAR. On appeal, the judge then held that the menial and subservient attitude adopted by the defendant in complying with the request to include the defences of consent, justification, qualified privilege and fair comment in its defence, after initially writing to the plaintiff's solicitors that it 'bears neither any ill will nor 13    malice' against the plaintiff, is a clear indication that costs on a full indemnity basis should be paid forthwith. (iii) Alex Ting Kuang Kuo @ Ting Kuang Kuo v Credit Corp (M) Sdn Bhd [2012] MLJU 1070. Hamid Sultan J (as he then was) had stated that: “As a general rule, court is obliged to order party to party costs on a standard basis and is given the discretion to order the same on indemnity basis (see Order 59 rule 16(2) of the CR 2012). A party to party costs on indemnity basis may be ordered where there has been scandalous conduct and is meant to be punitive in nature (see EMI Records v Wallace [1982] 2 ALL E.R. 980).” [13] Based on the above propositions, the counsel for the Defendants has asked for the sum of RM558,822.30 to be paid to the Defendants by the Plaintiffs being the particulars which have been itemised in Appendix 1, 2 and 3 of their submission. 14    [14] The Plaintiffs have vehemently refuted the Defendants’ claim for costs to be paid to the Defendants on an indemnity basis. The Plaintiffs had in contrary, argued that contractual relationship between the 2nd Plaintiff and the 1st Defendant arising from the Charge Annexure had ceased upon the land was auctioned off and the proceeds of sale had been paid in full by the successful bidder to the 1st Defendant. According to the Plaintiffs, at the time when the 1st Defendant received the proceeds of sale of the land in January 2011, the contractual relationship between the 2nd Plaintiff and the 1st Defendant had ceased then. [15] It was further submitted by the Plaintiffs that the 1st Defendant cannot rely on section 12.28 of the Charge Annexure as a basis to seek costs against the 2nd Plaintiff in this action as section 12.28 of the Charge Annexure are of limited application. It was the contention of the Plaintiff that section 12.28 is only applicable to situations where the 2nd Plaintiff had contravened the provisions of the Charge Annexure or breached any written law and such contravention or breach had affected the land and it does not extend to indemnify the 1st Defendant in respect of legal costs incurred in this instant case. 15    [16] In the present case, it was contended by the Plaintiffs that it is undisputed that the 1st Defendant had obtained an Order for Sale against the land and thereafter auctioned off the same and had received the proceeds of sale, and hence the 1st Defendant’s rights and interest in the property remained intact and uncompromised. [17] The Plaintiffs further contended that section 12.28(b) of the Charge Annexure must be read and interpreted as a whole and not only to portion which has been highlighted by the Defendants. The clear provision of section 12.28(b) is that, the 2nd Plaintiff as chargor will indemnify the 1st Defendant’s legal expense and costs as the charge only in respect of the following instances: (a) to recover the outstanding sum under the banking facilities; and (b) to enforce the charge ( including the auction of the land). [18] The above proposition, according to the Plaintiffs is consistent with statutory provisions of Section 268 of the National Land Code 1965 (NLC) which limits the liability of the chargor. The Plaintiffs further submitted that section 268(3) of the NLC provides a statutory 16    protection to the 2nd Plaintiff by limiting the 2nd Plaintiff’s liabilities to the 1st Defendant up to the time of the auction of the sale. [19] The counsel for the Plaintiffs had also submitted that there is a distinction between “solicitor own client costs” and “costs on indemnity basis” provided under Order 59 rule 16(4) of the Rules of Court 2012 (ROC) and these two terms cannot have the same meaning. [20] The Plaintiffs had also referred this Court to Hamid Sultan Abu Backer J’s (as he then was) decision in Alex Ting Kuang Kuo where his lordship has explained the term “solicitor own client costs” as follows; “ [11] Solicitor-client costs, in essence, are based on indemnity basis. The solicitor-client costs are not based on what costs or fees the solicitor has agreed with the client. If the solicitor has agreed with the client a certain fees (actual costs), they are contractual and have nothing to do with taxation on a solicitor-client basis. Taxing registrar must note this distinction. For example, contract may provide that costs of litigation between the parties will be based on solicitor-client costs. This just means 17    it must be taxed on indemnity basis and not on what the solicitor has agreed with the fees for his clients. For example, where it is related to default judgment, the getting up fees will only be nominal and not what the solicitor has agreed with the clients. Even if there is a contract between the parties to assess cost on solicitor-client basis, the ultimate discretion of costs is still vested in court pursuant to the Courts of Judicature Act 1964 and as well as the RC 2012 to award appropriate amount. “ [21] The Plaintiffs had brought to this Court’s attention to Dr. Andrew Chew Peng Hui’s explanation in respect of an award on an indemnity basis. At page 352 in The Law of Costs in Civil Proceedings (Sweet & Maxwell Asia), the author had stated this: “ On the indemnity basis, “considered more favourable” to the recovering party than the standard basis costs”, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred; …” [22] It is also the contention of the Plaintiffs that even assuming that section 12.28 of the Annexure can be relied on by 1st Defendant, the 2nd Plaintiff cannot be made liable to full indemnification of 1st Defendant’s legal costs as the 2nd Plaintiff’s participation throughout 18    this action is very minimal. It was submitted that the 2nd Plaintiff is named and included as a plaintiff in this action simply because the 2nd Plaintiff was the registered proprietor of the property. The Plaintiffs further submitted that it is undisputed that the core issues and contentions in this action only revolve around the disputes between the 1st Plaintiff and the Defendants. Court’s decision i. on the contractual obligation of the 2nd Plaintiff [23] It is settled that award of costs at the conclusion of a trial is always within the discretionary power of the Court. When the Rules of Court 2012 (ROC) was introduced, Order 59 rule 7(2) and 19 have done away with the assessment of appropriate costs to the winning party by way of taxation proceeding. While in determining the appropriate costs, Order 59 rule 16 provides the basis of assessment. Order 59 rule 7(2) and 19 of the ROC provides as follows: Order 59 rule 7(2): “ … 7.(2) At the conclusion of the proceedings, the Court will hear submissions from the parties as to the quantum of costs to be 19    awarded and shall order such costs as it deems fit. The Court shall direct that the submissions of the parties on costs are to be tendered as part of the substantive submission of the case or separately and there shall be annexed to the submission of costs a bill for such costs which shall be in Form 117, and shall include particulars of the following: (a) work done including the value of getting up; and (b) all disbursements reasonably incurred. …… ” Order 59 rule 19: “ …. 19. (1) The amount of costs (excluding disbursement) that are payable shall be at the discretion of the Court and shall be determined upon the conclusion of the trial. (2) In fixing the costs payable, the Court shall have regard to the relevant circumstances including but not limited to the factors set out in the rule 16.” [24] This Court was urged to award the Defendants costs on an indemnity basis on the premise that the contractual relationship between the 1st Defendant (as chargee) and the 2nd Plaintiff (as Chargor) arising from the Charge Annexure must be given effect or must be enforced. On behalf of the Defendants it was argued that the 2nd Plaintiff is 20    contractually obligated to indemnify the 1st Defendant the entire legal expenses incurred by the 1st Defendant in defending the 2nd Plaintiff‘s action against it. This present action, according to the Defendants is an action arising from contractual relationship derivative from the Charge Annexure. [25] This Court is not inclined to accept the Defendants’ contention that the 2nd Plaintiff is contractually obligated to indemnify the 1st Defendant’s legal expenses in respect of this present action. This Court is of the view that even though this action is somehow or rather connected to the foreclosure proceeding arising from the Charge Annexure, but one must ask this question; whether this action is within the boundary or perimeter of section 12.28 of the Annexure or section 12.11 of the Annexure for that matter. Now, the present action was filed by the Plaintiffs primarily on the allegation that when the 1st Defendant proceeded with the Order for Sale, and the property was sold at an undervalued price. The Plaintiffs also alleged that 1st Defendant had not given the 1st Plaintiff time and opportunity to redeem the land despite the fact that there was a purported MBI agreement within the knowledge of the Defendants. On these 21    grounds, the Plaintiffs claim that they are entitled to recover damages or loss suffered from the Defendants for selling off the property vide the foreclosure action. [26] This Court is in full agreement with the submission of the Plaintiffs’ counsel that the contractual relationship between the 2nd Plaintiff and the 1st Defendant arising from the Charge Annexure had ceased upon the land being auctioned off and the proceeds of sale had been paid in full by the successful bidder to the 1st Defendant. The Defendants had received the proceeds of sale and the property no longer belongs to the 2nd Plaintiff and hence the Charge Annexure has come to its end. Thus, the provisions in the Annexure no longer bind both the parties and are no longer enforceable. [27] To extend the application of the Annexure to what has been submitted by the Defendants would be erroneous and this Court is not inclined to allow such extensive and unlimited application of the Charge Annexure. The Defendants must fail on this ground. 22    ii. Does Plaintiffs’ conduct during the whole trial justify costs on an indemnity basis [28] This Court is of the considered view that the conducts of the Plaintiffs which were set out by the Defendants do not justify costs on an indemnity basis. [29] The principle justifying costs be awarded on indemnity which has been laid down by the authorities cited by both the Plaintiffs and the Defendants is crystal clear. In this case, there is no reason why this Court should punish the Plaintiff to show its disapproval the way in which litigation has been conducted by the Plaintiff. The Plaintiffs in filing this action have not conducted themselves in manners which are against moral probity that deserves to be condemned by this Court. Nor do the Plaintiffs’ conduct can be described as unreasonable to a high degree. Authorities have decided that unreasonable in this context does not mean merely wrong or misguided in hindsight. This action is also not the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) or weak claim. 23    [30] Based on the above findings, the Defendants must also fail on this ground. [31] Be that as it may, this Court must again, emphasise that the claim pursued by the Plaintiff although not warranting costs on an indemnity basis, this Court must still consider all of the facts surrounding the case. In determining the appropriate costs to be awarded to the Defendants, this Court must not lose sight of the provisions stipulated under Order 59 rule 16 of the ROC (on basis of assessment) as well as Order 59 rule 8 of the ROC pertaining other special matters that can be taken into account by the Court in exercising its discretion in awarding costs. Order 59 rule 8 provides as follows; (a) any offer of contribution or offer of settlement under Order 22B; (b) the conduct of all the parties, including conduct before and during the proceedings; 24    (c) The conduct of the parties in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution; and (d) in particular, the extent to which the parties have followed any relevant pre-action protocol or practice direction for the time being issued by the Registrar.” [32] This action on its face seems to be a simple case but as the trial proceeded, the case expanded to be a complex case involving complex issues of law regarding land ownership, its valuation, contractual validity, locus standi of the Plaintiffs, matters of estoppel and res judicata, beneficial entitlements, evidential burdens, fiduciary duties, and even procedural rules. [33] There were four separate applications heard during the trial itself which required submissions and hearings to be carried out as well as several other prior interlocutory applications that delayed the matter for 4 years before a trial date was even fixed. The extent of which this matter required specialized skill and knowledge was reflected in the fact that land valuers and solicitors were called to give evidence; 25    [34] The trial was conducted in 29 days, some of which went on very late at night and was conducted on the premise of voluminous bundles of documents comprising 18 bundles of documents, 15 witnesses had testified, 15 volumes of notes of proceedings and where both parties had filed about 300 pages worth of written submissions with equally voluminous bundles of authorities; [35] The value of the claim is RM33,000,000.00 and the basis of the claim involved a settlement agreement for the sum of RM241,367,317.09 and for a Property allegedly claimed to be valued at RM RM48,697,902.00. [36] This Court is in total agreement with the Defendants that taking into consideration the numbers of bundle of documents filed in court, witnesses called to testify and days of trial as well as the legal issues involved in this legal action, these factors must be reflected in the costs to be awarded by this Court. 26    [37] Hence, based on the foregoing, the sum of RM 300,000.00 is reasonable considering the circumstances of this action. This Court hereby orders the Plaintiffs to pay the Defendants a global sum of RM300,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 03rd December 2015 For the Plaintiffs : Tetuan Arifin & Partners Encik Chin Tzi Seng Cik Emmy Hazwani Jamil For the Respondent : Tetuan Zaid Ibrahim & Co Encik Oommen Kurien Cik Celine Chelladurai Cik Ain Aissa

Tika 2.6.0

12B-143-07/2015

PERAYU UMEN HOLDINGS SDN BHD RESPONDEN KAMSO CONSTRUCTION SDN BHD

01/12/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=00527bbf-bb01-4747-8cf1-7649b6ef2f37&Inline=true

Microsoft Word - 12B-143-07-2015 Umen Holdings Sdn Bhd v Kamso Construction Sdn Bhd 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO : 12B-143-07/2015 ANTARA UMEN HOLDINGS SDN BHD ….PERAYU DAN KAMSO CONSTRUCTION SDN BHD ….RESPONDEN ALASAN PENGHAKIMAN (Rayuan dari Mahkamah Sesyen) [1] Rayuan ini telah difailkan oleh Perayu (Defendan) terhadap keputusan Hakim Mahkamah Sesyen (HMS) Shah Alam yang telah membenarkan tuntutan (Responden) Plaintif sebanyak RM478,261.02 selepas satu perbicaraan penuh dijalankan. Latar Belakang Kes [2] Plaintif (Umens Holdings Sdn Bhd) adalah sebuah syarikat yang ditubuhkan di Malaysia di bawah Akta Syarikat 1965 dan 2    mempunyai pejabatnya di No. 45-1, Jalan Puteri 2/3, Bandar Puteri, 47100 Puchong, Selangor Darul Ehsan. [3] Manakala, Defendan (Kamso Construction Sdn Bhd) pula adalah juga sebuah Syarikat yang ditubuhkan di Malaysia di bawah Akta Syarikat 1965 dan mempunyai pejabat berdaftarnya di No.16-1, Tingkat Satu, Jalan Remia 4/KS6, Bandar Botanik, 41200 Klang, Selangor Darul Ehsan dan alamat perniagaannya di No.17A, Jalan SS 21/56B, Damansara Utama, 47400 Petaling Jaya, Selangor Darul Ehsan). [4] Melalui Surat Award bertarikh 24.5.2011 (“Surat Award tersebut”) Defendan telah melantik Plaintif untuk melaksanakan kerja-kerja pembekalan, penghantaran dan pemasangan kerja-kerja aluminium di Projek Politeknik Banting bernilai RM302,995.00. [5] Adalah fakta yang dipersetujui bahawa pihak Defendan telahpun menjelaskan pembayaran sebanyak RM302,995.00 bagi skop kerja-kerja pembekalan dan pemasangan aluminium yang disenaraikan di dalam Surat Award tersebut. 3    [6] Plaintif telah mendakwa selain daripada skop kerja-kerja yang dinyatakan atau terkandung di dalam Surat Award tersebut, pihak Defendan telah mengarahkan Plaintif untuk membekalkan bahan barangan dan membuat/melaksanakan kerja-kerja tambahan kuantiti serta kerja-kerja tambahan pelbagai (“kerja-kerja tambahan tersebut”) bernilai RM561,830.68. [7] Defendan enggan membayar Plaintif atas kerja-kerja tambahan tersebut. Atas keengganan Defendan membayarnya, Plaintif telah memfailkan Writ Saman dan Penyata Tuntutan terhadap Defendan di Mahkamah Sesyen Shah Alam bagi menuntut pembayaran berjumlah RM478,261.02. [8] Defendan telah menafikan tuntutan Plaintif tersebut. Di dalam Penyataan Pembelaan Terpindanya antara lain Defendan telah membangkitkan pembelaan-pembelaan berikut: i. menafikan terdapatnya arahan untuk kerja-kerja tambahan yang berjumlah RM561,830.68 sepertimana dakwaan Plaintif. ii, Defendan telah telah membuat pembayaran wang berjumlah RM386,564.66 kepada Plaintif untuk kerja-kerja yang telah 4    disempurnakan dan diluluskan di bawah Surat Award tersebut, melebihi nilai kontrak yang dipersetujui atas dasar suci hati “goodwill”. iii. tuntutan Plaintif tersebut adalah pra-matang kerana kerja- kerja tambahan tersebut masih belum diperiksa, diluluskan dan dipersetujui serta dibuat bayaran oleh Uni Integrated Construction Sdn Bhd (“main contractor”), pemilik projek tersebut kepada Defendan dan Defendan tidak berkewajipan membayar Plaintif bagi kerja-kerja tambahan tersebut. v. kerja-kerja tambahan tersebut adalah tidak berkualiti, cacat dan defektif dan gagal untuk mematuhi arahan kerja-kerja pembaikian dan baik pulih dan oleh itu Defendan terpaksa menanggung perbelanjaaan untuk memperbaiki segala kerja- kerja yang defektif tersebut. [9] HMS telah membuat dapatan yang memihak kepada Plaintif dengan membenarkan tuntutan Plaintif dan Defendan diperintahkan juga membayar kos tindakan kepada Plaintif sebanyak RM16,809.00. 5    [10] Di dalam Memorandum Rayuan yang difailkan Defendan, Defendan telah mengemukakan 18 alasan merayu terhadap keputusan HMS dan menyatakan bahawa HMS telah khilaf daripada segi fakta dan undang-undang di dalam pemutusannya. [11] Namun, apabila rayuan ini dibicarakan di hadapan Mahkamah ini, peguam Defendan di dalam hujahan bertulisnya telah menyatakan bahawa isu-isu yang perlu ditentukan oleh Mahkamah ini adalah sepertimana yang telah disenaraikan di dalam ISU-ISU YANG HARUS DIBICARAKAN di hadapan HMS. [12] Bagi Mahkamah ini, pada dasarnya alasan-alasan Defendan merayu terhadap keputusan boleh dirangkumkan seperti berikut: a. bahawa HMS khilaf dari segi fakta dan undang-undang apabila memutuskan terdapatnya arahan daripada Defendan kepada untuk kerja-kerja tambahan tersebut dan Defendan bertanggungan untuk membayar jumlah RM 478,261.02 atas kerja-kerja tambahan tersebut. b. bahawa HMS khilaf dari segi fakta dan undang-undang apabila memutuskan bahawa tiada kelulusan daripada 6    “main contractor” diperlukan sebelum pembayaran dilbuat kepada Plaintif bagi kerja-kerja tambahan dan tuntutan Plaintif bukanlah satu tuntutan pra-masa. c. HMS khilaf dari segi fakta dan undang-undang apabila memutuskan bayaran sebanyak RM83,569.66 adalah sebahagian bayaran untuk kerja-kerja tambahan tersebut dan bukan merupakan bayaran lebihan yang dibayar oleh Defendan kepada Plaintif atas goodwill. d. HMS khilaf dari segi fakta dan undang-undang apabila tidak memutuskan bahawa terdapat kerja-kerja Plaintif yang tidak berkualiti, cacat dan defektif dan Defendan terpaksa menanggung perbelanjaaan untuk memperbaiki segala kerja-kerja yang tidak berkualiti, cacat dan defektif tersebut. e. samada terdapatnya arahan daripada Defendan kepada untuk kerja-kerja tambahan tersebut dan Defendan bertanggungan untuk membayar jumlah RM478,261.02 atas kerja-kerja tambahan tersebut. 7    [13] Defendan kononnya menafikan terdapatnya arahan secara lisan atau bertulis daripada Defendan kepada Plaintif bagi membuat kerja-kerja tambahan tersebut selain daripada kerja-kerja yang di dalam skop Surat Award tersebut. [14] Mahkamah ini tidak nampak di mana HMS telah khilaf dari segi fakta dan undang-undang apabila memutuskan bahawa berdasarkan keterangan-keterangan yang ada di hadapannya terdapatnya arahan Defendan kepada Plaintif bagi kerja-kerja tambahan tersebut. [15] Mahkamah ini bersetuju dengan penemuan fakta oleh HMS berdasarkan fakta-fakta dan keterangan yang berikut: i. saksi Defendan sendiri (SD 2) telah mengakui kerja-kerja tambahan tersebut telah diarahkan oleh Defendan sewaktu Plaintif melakukan kerja-kerja seperti dinyatakan dalam Surat Award tersebut. ii. kesemua Progressive Claim di muka surat 232 hingga 235 Rekod Rayuan telah ditanda sebagai Eksibit P-3 tanpa sebarang bantahan oleh Defendan. 8    iii. Plaintif juga telah menghantar invois bagi kerja-kerja tambahan dan Defendan juga tidak membantah kemasukan invois-invois ini. (muka surat 222-231 Rekod Rayuan). iv. Defendan juga tidak pernah mempertikaikan jadual & plan bagi kerja-kerja tambahan di muka surat 258-297 Rekod Rayuan dan juga kemasukkan Summary Claim di muka surat 255-257 Rekod Rayuan. [16] Mengambil kira keterangan-keterangan dan fakta-fakta kes, Mahkamah ini berpendapat bahawa imbangan kebarangkalian lebih memihak kepada Plaintif bahawa memang benar terdapat arahan daripada Defendan kepada Plaintif untuk melaksanakan kerja-kerja tambahan tersebut. b. samada kelulusan daripada “main contractor” diperlukan sebelum pembayaran boleh dibuat kepada Plaintif bagi kerja-kerja tambahan dan samada tuntutan Plaintif adalah tuntutan pra-masa. [17] Persoalan yang timbul adakah pengataan Defendan itu benar bahawa sebelum Defendan boleh membuat bayaran kepada 9    Plaintif, kelulusan daripada “main contractor” adalah diperlukan terlebih dahulu. [18] Untuk itu, Mahkamah ini merujuk kepada Perenggan 1 Surat Award tersebut dan ianya menyatakan berikut: “You are required to submit all specifications and sample of material to us and we shall onward submit to our client Uni Integrated Construction Sdn Bhd for approval. The letter of award is only valid when our client Uni Integrated Construction Sdn Bhd approve all material you submitted and specifications of the products.” … [19] Bagi menyokong pembelaannya, Defendan telah cuba bergantung sepenuhnya dengan Perenggan 1 tersebut. Mahkamah ini perlu menekankan di sini beberapa perkara; pertamanya, jika Defendan mahu bergantung kepada perenggan 1 ini, Defendan mestilah juga memainkan peranan dengan menasihati Plaintif untuk “submit” segala spesifikasi dan sampel bahan kepada Defendan sebelum Defendan ‘submit’ kepada “main contractor”. Tetapi di dalam kes ini Defendan sendiri tidak berbuat demikian, maka adalah tidak adil untuk Defendan kini cuba meletakkan kesalahan ke atas 10    Plaintif yang kononnya tidak mendapat kelulusan daripada “main contractor” dan tidak boleh dibayar setelah Plaintif melaksanakan segala kerja-kerja tambahan yang diminta oleh Defendan. Bagi Mahkamah ini pembelaan yang ditimbulkan Defendan ini adalah jelas tidak bona fide. Kedua; adakah Defendan dan Plaintif terikat dengan Perenggan 1, Surat Award sedangkan kerja-kerja tambahan yang diminta dilaksanakan oleh Defendan tidak termasuk di dalam skop kerja yang dinyatakan Surat Award. Mahkamah ini telah membuat penelitian terperinci akan kandungan Surat Award tersebut dan mendapati tidak ada sebarang terma di dalam Surat Award tersebut yang memperuntukkan apa-apa kerja tambahan yang dilaksanakan berkaitan projek tersebut Surat Award adalah terpakai. Justeru, ianya adalah jelas bahawa Surat Award tersebut tidak mengikat pihak Plaintif dan Defendan bagi kerja-kerja tambahan yang dilaksanakan. Ketiga; Saksi Defendan sendiri iaitu SD 2 di dalam keterangannya telah menyatakan bahawa Surat Award tersebut tidak mengikat pihak-pihak bagi kerja-kerja tambahan. 11    Keempat; kedudukan adalah lebih jelas lagi apabila saksi yang dipanggil Defendan dari Uni Integrated Construction Sdn Bhd (main contractor) telah memberi keterangan bahawa Defendan tidak pernah mendapatkan apa-apa kelulusan daripada Uni Integrated Construction Sdn Bhd bagi bayaran Surat Award sebanyak RM302,995.00 dan juga bayaran bagi kerja-kerja tambahan sebanyak RM83,569.66 yang telah dibayar kepada Plaintif. [20] Dakwaan Defendan bahawa Plaintif perlu mendapat kelulusan daripada Uni Integrated Construction Sdn Bhd bagi kerja-kerja tambahan berdasarkan Perenggan 1,Surat Award adalah tidak dapat dipertahankan dan sewajarnya ditolak. Oleh yang demikian pengataan atau dakwaan Defendan bahawa tuntutan Plaintif bagi kerja-kerja tambahan pra-matang juga tidak boleh dipertahankan. c. samada bayaran sebanyak RM83,569.66 adalah merupakan bayaran lebihan yang dibayar oleh Defendan atas goodwill dan bukan sebahagian bayaran untuk kerja-kerja tambahan tersebut. 12    [21] Defendan telah mendakwa bahawa ia telah membuat bayaran sebanyak RM83,569.66 kepada Plaintif atas dasar ‘goodwill’. Pengataan ini adalah satu yang sukar dipercayai dan bagi Mahkamah ini ia adalah satu yang dakwaan yang yang tidak masuk akal langsung atau mustahil. Mahkamah berpendapat begitu atas alasan-alasan berikut: i. melihat kepada perbuatan dan tindak-tanduk Defendan sendiri. Defendan tidak pernah mempertikaikan invois-invois yang dihantar oleh Plaintif bagi kerja-kerja tambahan tersebut. Defendan dengan ini telah mengenepikan haknya untuk mempertikaikan amaun yang dituntut bagi kerja-kerja tambahan. Defendan dengan ini adalah diestop untuk membangkitkan isu tentang keperluan kelulusan daripada Uni Integrated Construction Sdn Bhd setelah membuat pembayaran bagi kerja-kerja tambahan. (Sila lihat: Orix Factoring Malaysia Sdn Bhd v E-Furnishings International Sdn Bhd & Ors [2010] 9 MLJ 65 - “The first Defendant chose not to refute any of the monthly statements issued regularly by the Plaintiff. As it stood, the first Defendant was estopped from denying the existence of the debt as well as the quantum claimed by the Plaintiff”). Bagi tindak-tanduk dan perlakuan Defendan 13    juga, Mahkamah ini mesti merujuk kepada kes Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 yang telah merujuk kepada keputusan Lord Denning di dalam kes Amalgamated Investment and Property Co. Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84 yang menyatakan berikut: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the 14    dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” ii. Jumlah RM83,569.66 adalah suatu jumlah yang besar untuk dikatakan bayaran goodwill. Lebih-lebih lagi kalau diukur daripada kerja-kerja yang diberikan di dalam Surat Award adalah hanya RM302,995.00. Pembayaran goodwill sebanyak RM83,569.66 iaitu sebanyak lebih kurang 30% daripada jumlah Surat Award, menjadikan ianya suatu yang tidak munasabah. Mahkamah ini bersependapat dengan HMS bahawa alasan yang diberikan oleh Defendan bagi pembayaran tersebut atas dasar ‘goodwill’ adalah sesuatu ‘afterthought’. iii. Tambahan lagi pula, saksi Defendan sendiri iaitu SD-2, Lim Ee@Lim Bol Tiek telah mengaku semasa pemeriksaan balas bahawa Defendan telah membuat lebihan bayaran kerana Plaintif ada membuat kerja-kerja tambahan dengan Defendan. 15    “Q 31 : I put to you that you paid exceed from the actual amount because the Plaintiff had done the variation work with you, agree or not? My question you agree or not you paid more than actual amount because the Plaintiff had done the variation work or additional work with you, do you agree? J : Yes Q 32 : So do you agree that because the Plaintiff already done the variation work and the additional work because of that you had paid more than RM302,995 right? J : Yes.” iv. Keterangan SD-2 ini juga disokong oleh seorang lagi saksi Defendan iaitu SD-3. SD-3 telah mengakui bahawa adanya kerja-kerja tambahan yang telah dilaksanakan oleh Plaintif atas arahan Defendan. Justeru, alasan pembayaran lebih yang dilakukan oleh Defendan atas dasar “goodwill” mestilah ditolak sama sekali. [22] Berdasarkan alasan-alasan di atas, Mahkamah ini mendapati bahawa bayaran sebanyak RM83,569.66 yang dibayar oleh Defendan kepada Plaintif adalah untuk kerja-kerja tambahan dan tuntutan Plaintif adalah suatu tuntutan yang sah dan berasas. 16    Pembelaan Defendan yang mendakwa tuntutan Plaintif adalah pra- masa tidak boleh berdiri dan tidak boleh diterima sama sekali. d. samada terdapat kerja-kerja Plaintif yang tidak berkualiti, cacat dan defektif dan Defendan terpaksa menanggung perbelanjaaan untuk memperbaiki segala kerja-kerja yang tidak berkualiti, cacat dan defektif tersebut [23] Dakwaan Defendan bahawa terdapat kerja-kerja Plaintif yang tidak berkualiti, cacat dan defektif dan Defendan terpaksa menanggung perbelanjaaan untuk memperbaiki segala kerja-kerja yang tidak berkualiti, cacat dan defektif tersebut adalah pengataan kosong semata-mata. Defendan telah gagal membuktikan dakwaan ini. Malahan, saksi-saksi Defendan sendiri tidak mempunyai pengetahuan langsung berkaitan kerja-kerja Plaintif yang dikatakan tidak berkualiti, rosak,cacat dan defektif. Tambahan lagi, Plaintif juga tidak pernah dimaklumkan oleh Defendan tentang apa-apa kerja Plaintif yang tidak berkualiti, rosak,cacat dan defektif. [24] Prinsip undang-undang berkenaan campur tangan rayuan (appellate intervention) bagi rayuan-rayuan selepas perbicaraan 17    penuh adalah jelas dinyatakan di dalam kes Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 yang mana Mahkamah Rayuan menyatakan seperti: “Very recently, this Court in Arab Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors [2003] 1 CLJ 585 CA, reviewed some of the leading authorities on appellate intervention and identified the general rule of appellate non-interference. We also considered some of the categories in which appellate interference is warranted. We find it unnecessary to repeat what we there said. Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence. It is, we think appropriate that we say what judicial appreciation of evidence involves. A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having 18    his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same. There are a number of important and leading cases in which the point has been considered. (emphasis added) (Sila lihat: i.Conlay Construction Sdn Bhd V. Perembun (M) Sdn Bhd [2013] 9 CLJ 828; ii. Dr Jayadevan A/L Arayan & Anor V. Sharon Simon & Ors [2000] 3 MLJ) [25] Berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini, rayuan ini bukanlah satu kes yang mana HMS telah terkhilaf di dalam pemutusan fakta mahupun undang-undangnya yang memerlukan campur tangan Mahkamah ini. Mahkamah ini dengan itu menolak rayuan Defendan dengan kos sebanyak RM5000.00. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 1 haribulan Disember 2015 19    Peguam Perayu - Tetuan H.S. Chew & Co Encik C.K. Chew Peguam Responden - Tetuan K.Francis & Varghese Encik Varghese Onny & Cik Anis Syazween

Tika 2.6.0

MT5-22-782-2010

PLAINTIF MAYBANK ISLAMIC BERHAD DEFENDAN ALDWICH ENVIRO-MANAGEMENT SDN BHD

30/11/2015

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 22-782-2010 Maybank Islamic Berhad Lwn Aldwich Enviro Management Sdn Bhd 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : MT5-22-782-2010 Between MAYBANK ISLAMIC BERHAD .... PLAINTIFF And ALDWICH ENVIRO-MANAGEMENT SDN BHD ... DEFENDANT (By Original Action) Between MAYBANK ISLAMIC BERHAD ... PLAINTIFF And 1. ALDWICH ENVIRO-MANAGEMENT SDN BHD 2. ALDWICH BERHAD 3. KAMALUL ARIFIN BIN YUSOF 4. MOHAN KUMAR A/L KATHIRAMALAI 5. CHAN KIN MENG ... DEFENDANTS 2    GROUNDS OF JUDGMENT (After full trial) A. BACKGROUND FACTS [1] The present case begs for no extremity of lengths to discuss and determine its issues. As a prelude, this Court highlights that the factum of a fraud is undisputed in the present case. There is a mutual consensus between every person and parties involved in this case that indeed there was a fraud. What is left to be determined is merely, the measure of damages entitled to the victim of the fraud, and the persons liable and complicit to the fraud. The fraud dealt with in this case is but a recycling of Islamic Accepted Bills (“IABs”), which is similar to the mechanisms of a Banker’s Acceptance of which the drawdowns from the IABs were procured on the basis of a sham transaction, and the proceeds from the drawdowns were utilised to pay matured IABs which are due for payments. This recycling of IABs is undisputed and even admitted by the alleged fraudsters, the Defendants. [2] Now, what has been laid upon this Court is the Plaintiff’s air-tight case, which has left no stone left unturned. The Plaintiff’s case generally covers the Defendants’ liabilities either through complicity to the fraud or sheer recklessness and negligence which 3    had led to the Plaintiff’s injuries. The Defendants however, have very little to no defence to exonerate themselves from liability and complicity in the fraud. Their defences mainly pertain to demarcating themselves from any participation in the fraud, and apportioning the blame to other persons but not themselves. Nevertheless, the undisputed fact remains, the fraud had occurred and the proceeds from the fraud indeed had benefited the Defendants. What irks this Court the most is the Defendants’ defence that it is the Bank’s negligence that had led to the occurrence of fraud, in which a fraud which the Defendants themselves benefitted from. Preliminarily, this Court must stress that this Court shall never be an instrument of fraud and would never legitimize any act of deceit or fraud and lift the liability off of the fraudster or tortfeasor merely because the victim of the fraud was ‘negligent’ enough to be fooled by the façade set up by the fraudster or tortfeasor. A fraud is a fraud and any measure of negligence is never a defence for the fraudster to plea. [3] Preliminarily as well, this Court does not hesitate to disagree with the destitute contention by the Defendants that this Court ought to disregard the Plaintiff’s Statement of Claim (allegedly pleading only on breach of contract) as the Plaintiff has abandoned the 4    Statement of Claim and settle for a cause of action purely in tort (in their counter-claim). Against this fallible contention, this Court reminds the parties that it is already well settled that a claimant can plea a concurrent action in contract and in tort. It is verily common that breaches to a contract arose from the negligence of a partisan which in turn led to the non-performance and breach of the contract’s terms. Negligence in performance and breach in performance are not mutually exclusive and there is no confusion at all that a tortious act may as well be a breach of contract. (see Henderson v Merrett Syndicates [1995] 2 AC 145; Bank Utama (M) Bhd v Insan Budi Sdn Bhd [2009] 1 MLJ 148 (CA), page 62) [4] The Plaintiff {Maybank Islamic Berhad (“Maybank”)} is a financial institution, a bank, licensed under the Islamic Financial Services Act 2013. [5] The 1st Defendant {Aldwich Enviro-Management Sdn Bhd (“AEM”)} is a private company incorporated in Malaysia while the 2nd Defendant {Aldwich Berhad (“AB”)} is a wholly owned subsidiary of AEM. Both companies generally deal with waste management business and trades in oil and gas. Relevant to the 5    present case, AEM and AB deals with the recycling of used catalysts (“spent catalysts”) used in the manufacturing process of precious metals (in this case, platinum) in which AEM and AB will process the spent catalysts to salvage residual precious metals from the spent catalysts. [6] The 3rd Defendant {Kamalul Arifin bin Yusof (“Kamalul”)} is the founder of AEM and at all material times a director and shareholder of AEM and AB. He is also one of the authorised signatories to the banking facilities and all documents pertaining to the IAB granted by the Plaintiff. [7] The 4th Defendant {Mohan Kumar A/L Kathiramalai (“Mohan”)} was the Group Chief Financial Officer and Company Secretary of the Aldwich Group of Companies (inclusive of AEM and AB). Mohan is also one of the authorised signatories similar to Kamalul. [8] The 5th Defendant, { Chan Kin Meng (“Chan”)} was AEM’s and AB’s Technical Director until he was promoted as the Chief Technical Officer of the Aldwich Group of Companies. Chan is also 6    one of the authorised signatories together with Kamalul and Mohan. [9] Anas Nasrun (“Anas”) is the supposed scapegoat who all the Defendants sought to attribute the fraud to. Anas was the Chief Financial Officer of AB and was responsible for the preparation and submission of AEM/AB’s IAB applications for drawdowns to Maybank. Anas, perplexingly was not called by the Defendants to prove their defence. This omission or failure to call Anas as witness by the Defendants shall be dealt with later in this judgment. [10] Vide a Letter of Offer and a Supplemental letter of Offer dated 26.9.2005, Maybank has granted banking facilities to AEM (inclusive of the IAB facilities relevant in the present case). The IAB mechanism is similar that of a Banker’s Acceptance but conceptually different in the sense that a Banker’s Acceptance is a form of an advanced payment by the Bank, in which becomes due with interests upon a maturity period, while an IAB (based on the Islamic finance principle of bai’ al-dayn) is a sale and purchase of a debt in which the bank purchases the debt (out of a transaction of sale or services) and sells it to the customer in a form of a 7    deferred payment in which the sale price of the debt is agreed upon by the bank and customer. The same IAB facilities were extended for the use of AB and had since been utilised by both AEM and AB for their respective businesses. The IAB facility could be utilised to the aggregate limit of RM83,000,000.00. AEM and AB’s mandate and internal procedure in applying for IAB drawdowns [11] In the context of a genuine business transaction, there are five (5) documents which form the IAB application in which includes the Draft IAB, Contract Note and supporting documents (Invoice, Bill of Lading, and Consignment Note). This has been admitted by the Defendants. [12] In authorising and signing these documents, the admitted internal procedure of AEM and AB is that each document must be signed by two authorised one (1) authorised signatory from Group A level of management and also one (1) other signatory from Group B level of management. Simply put, all documents must be authorised and signed by a combination of Group A and B signatories. 8    [13] Kamalul and his wife, Selena forms Group A level of management while Chan and Mohan forms Group B level of management. [14] With respect of certifying copies of original documents (“CTC”) the Companies’ mandate is that any copies of original documents shall be certified as true by Mohan. [15] It was undisputed that the fraudulent Contract Notes and IAB drafts were authorised and signed by a combination of Kamalul and Chan/Mohan while all of the fraudulent invoices were signed by Mohan, and all of the Bills of Lading and Consignment Notes were certified as true documents by Mohan. All of which have been accurately tabulated by the Plaintiff in Exhibits P11A and P11B (which remains unchallenged). [16] This Court must highlight that these documents do not exist in isolation. All of these documents cross-refer to one another and form IAB drawdown applications which are later sent to the Plaintiff. 9    Discovery of Fraudulent IAB Applications [17] Circa June 2006, Maybank has submitted 24 different Bills of Lading (which form proof of shipping and trade for 24 different IAB applications submitted by AEM/AB to Maybank) to the International Maritime Bureau for verification. All of which were reported to be false and fraudulent. The state of falsity of these 24 fraudulent bills is readily acknowledged and admitted by the Defendants in paragraph 20 of AEM’s Defence and paragraph 4 of all of the Defendants’ counter-claims. Thus, the occurrence of fraud and the state of falsehood of these documents are not an issue in the present case. Meeting with Kamalul and Anas [18] Entailing the discovery of the fraud, Maybank held a meeting on 10.7.2009 with Kamalul and Anas of which, the minutes of the meeting records Kamalul apologising for the fraudulent applications and his agreement that the incident should not recur. This minute of the meeting is affirmed by the Defendants vide their own witness (DW2- Kamalul). (see also Minutes dated 10.7.2009 at page 133 of CBD B1) 10    Suspension and Recall of all the facilities by Maybank [19] Naturally, Maybank suspended and recalled all of the facilities against AEM/AB pursuant to clause 16.2 of the Letter of Offer. [20] AEM and AB in turn had the audacity to retort against the suspension and recall on the perplexing basis that the companies have never defaulted their payments of the IABs (which were paid from the proceeds of the fraud) and also on a vague supposition that Maybank and some unknown persons in the companies have conspired to defraud the Bank and the companies. Causes of Action [21] Following the Defendants’ refusal to pay the recalled facilities, Maybank has filed the present action against the Defendants on the following causes of action: a. All of the Defendants were complicit in the commission of a tort of deceit to defraud the Plaintiff; 11    b. Kamalul, Chan, Mohan and Anas are complicit in the commission of the tort of deceit knowingly or alternatively recklessly and carelessly; c. Kamalul, Chan, Mohan and Anas are liable for negligent misrepresentation or misstatement causing injuries to the Plaintiff; d. AEM and AB are equally liable to the tortious deceit as well as negligence of Kamalul, Chan, Mohan and Anas vide the Principle of Attribution; e. AEM and AB are vicariously liable to the tortious deceit as well as negligence of Kamalul, Chan, Mohan and Anas as employers; f. AEM and AB are equally liable for the tortious deceit as well as negligence of Kamalul, Chan, Mohan and Anas vide the Identification Doctrine; g. Kamalul is personally liable for AEM and AB’s tortious deceit as well as negligence as a Director of AEM and AB; 12    h. AEM and AB have breached their duty of care owed to Maybank; and i. AEM and AB have been unjustly enriched from the proceeds of the fraudulent IAB applications [22] The Defendants’ defences against the sound contentions above are at best, a desperate attempt to contend a resoundingly untenable defence: a. Kamalul and Chan were not complicit in the tort of deceit as the Contract Notes and Draft IABs were pre-signed and thus, cannot be held to misrepresent anything; b. It is the Plaintiff’s own negligence that brought the fraud upon its own detriment; c. Mohan should not be held liable for deceit and negligence merely for certifying fraudulent bills of lading as true; and 13    d. The Defendants have no knowledge on the state of falsity of the IAB documents and applications B. KAMALUL, CHAN AND MOHAN ARE LIABLE FOR THE COMMISSION OF THE TORT OF DECEIT EITHER IN FULL KNOWLEDGE OR THEIR RECKLESSNESS AND CARELESSNESS [23] At this juncture, it is opportune for this Court to highlight that the conduct and the state of mind of Kamalul, Chan and Mohan (“Employees”) shall be largely discussed in this section of the judgment. Their conduct and state of mind is also verily relevant in the discussion of other causes of action of the Plaintiff. Thus, this Court shall make cross-references to this section of the judgment so as to avoid redundancy to reproduce the discussions of the employees’ conduct. [24] The requisite elements in proving the tort of deceit have been succinctly particularised by David Steel J in the case of Uzinterimpex JSC v Standard Bank PLC [2007] 2 Lloyd’s Rep 187 at page 106 and shall be categorically discussed and determined in the following paragraphs of this section: 14    i. The Defendant must have made a representation of fact which was false [25] Now, it is here where the Defendants attempt to negate the act of false representation on the ground that the Contract Notes and the IAB Drafts were pre-signed and filled by someone else. On this basis, the Defendants contend that signing a blank document could not amount a representation of anything. [26] However, even before this Court deals with the folly of the contention above based on established and trite principles of law, this Court must stress that the representation relevant in this element is not at all referring to the representation that the representing party intends or perceives to represent, but instead what is relevant is the representation which was received and perceived by the party receiving the representation of false facts. [27] And it is not at all disputed that the fraudulent IAB applications (its documents) all bear the signature and authorisation of Kamalul, Mohan and Chan as well as certifications by Mohan. 15    [28] Thus, it is only just, logical and reasonable to infer that the Plaintiff bank has received (upon the finding of the employees’ authorisations in the documents) a representation by the employees and none else. [29] This Court cannot simply condone a party’s brazen ignorance or plain abject management of a company’s representations which led to the damage of another and lift liability on the same ground especially when the representations involve massive amount of monies. The repercussion if ever this Court were to condone such ignorance and poor management would be unconscionable in that it would always allow fraudsters to be absolved of liabilities so long as the fraud or deceit was conducted vide the banner of unsuspecting, ignorant and/or incompetent authorised signatories of a company. [30] Furthermore, this Court believes that the contention of pre-signing empty documents is merely a ruse or façade set up by the employees to save their own backs. There is an utter absence of any evidence of besides the Employees’ bare assertions to prove such an ignorant and irresponsible system. The learned counsel for the Defendants has not submitted a single spec of evidence to 16    corroborate this contention. There is absolutely no reason, be it logical or legal, for this Court to pay any credence over this contention by the Employees. [31] Regarding the legal implication of pre-signing blank draft IABs, the law is verily settled in that whatever was filled up in the pre-signed blank bills of exchange by other persons, shall become the signatory’s own representation as the person filling in the pre- signed blank document shall be assumed to have a prima facie authority to do so. (see Section 20(1) of the Bills of Exchange Act 1949) [32] And the same section above has been applied by this Court in the case of MBF Factors Sdn Bhd v Tay Hing Ju [2002] 5 MLJ 536 (HC) in which it was held that a signatory of a blank cheque cannot be absolved of its obligation to pay the cheque merely on the grounds that another person filled in the particulars of the cheque: “For if it was true that there was a usual diabolical practice…that the defendant would lend his blank cheques to Gan…then the defendant, by his delivery of his signed cheques to Gan, had given his prima facie authority to 17    Gan or other person in possession of it to fill up the omission in any way he thinks fit (see Section 20(1) of the Bills of Exchange Act 1949)” [33] It is well settled that based on the Bank Negara Guidelines on Accepted Bills-i that an IAB is a form of a Bill of Exchange and thus shall fall within the ambit of the operation of the Bill of Exchange Act 1949. Therefore, the same principle above shall apply. [34] Assuming for a moment, even if it is true that the IAB drafts were pre-signed, this Court opines that the Employees cannot be allowed to distance or vitiate themselves from the representations made under the banner of their signatures especially considering the serious nature of the companies’ business and the high level of management of the Employees. Mah Weng Kwai JC (as he then was) in the case of PB Securities Sdn Bhd v Raja Abd Rahman [2010] 8 MLJ 770 in deciding that a defendant cannot be absolved of an indemnity he signed merely on the grounds that the letter he signed was a blank letter, has referred to the case of Ming Lian Corporation Sdn Bhd v Haji Noordin [1974] 1 MLJ 52: 18    “…the defendant who is an educated person and a retired government official of many years’ standing, conversant with court procedure, knew what he was signing for and he was fully aware of the particulars which should have been inserted in the spaces left blank at the time of signing. I cannot imagine that a person of the class of the defendant would have been irresponsible to the extent of signing a blank form without having known the terms and conditions of the agreement” [35] The above excerpt encapsulates this Court’s sentiment succinctly. The Employees are no mere pencil pushers. They are experienced senior officers of the companies and there is no doubt at all that they would have full awareness, knowledge, as well as obvious understanding that the documents they have signed were draft IABs and the IAB application must be accompanied by legitimate supporting documents that require verifications. (see also Hong Leong Bank Berhad v Bennes Machinery [2009] LNS 1382 (HC)) 19    [36] Thus, upon the above discussion, this Court does not hesitate to find that indeed there is no doubt that the Defendants have misrepresented false facts to the Plaintiff and that the 1st element of the tort of deceit has undoubtedly been proven. ii. The false representation was made dishonestly [37] Now, there is really no reason for this Court to discuss this element at length. It is reiterated that there is an absolute absence of evidence from the Defendants to prove that they had no knowledge of the false representation in that they have only signed blank IAB drafts and Contract Notes. Just the mere fact that the Defendants have thoroughly failed to prove this contention, equates to the undeniable and overwhelming conclusion that the Employees are well aware of the false representations in the fraudulent documents and ultimately that the Defendants were dishonest. [38] Nevertheless, in order to further solidify this Court’s finding, this Court shall still allude to this element, albeit briefly. 20    [39] It is well settled that there are three instances in which an inference of a dishonest state of mind can be drawn. This rule has been propounded in the landmark case of Derry v Peek (1889) LR 14 App Cas 337 which has already been adopted in our local chapter by the Federal Court in the case of Loi Hieng Chiong v Kon Tek Shin [1983] 1 MLJ 31. Lord Herschel in Derry v Peek has held the following: “In an action of deceit…Fraud is proved when it is shewn that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.” [40] It was similarly held in Reese Silver Mining Co Ltd v Smith (1869) LR 4 HL by Lord Cairns: “…if persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they know to be untrue” 21    [41] Bearing the above ratios in mind, this present case can go either in two extremes. It is either that the companies are thoroughly ill- managed by incomprehensibly reckless, careless, clueless, utterly irresponsible, and downright incompetent Employees (particularly Kamalul, Chan and Mohan) OR that indeed all the Defendants in this present case had knowingly set up and participated in the fraudulent scheme to recycle the Plaintiff’s IAB facility. [42] Either way, both circumstances are not any feasible defences for Defendants in the present case to exonerate itself from their participation, collusion, in the deceit against the Plaintiff Bank. i. The Defendants are dishonest in that the false representation is made recklessly, without caring whether it be true or false [43] Even if for a microsecond that this Court were to accept that the Employees did pre-sign blank IABs and Contract Notes, this Court is of the considered view that such act or pre-signing blank bills are without a single iota of doubt a reckless, careless act without any care in the truthfulness of the IAB applications. This Court shall now categorically deal with the Employees’ reckless acts: 22    a. Kamalul’s reckless act [44] Kamalul in his testimony has tenuously contended that he had pre- signed the IAB drafts and Contract Notes although without any proof of any substance. However, what was more alarming is Kamalul’s admission that he did not even bother to request for the Contract Note’s and draft IAB’s (proof of trade) in pre- signing the IAB drafts and Contract Notes. This is proof of sheer ignorance and recklessness as the Contract Note and the IAB Draft are documents which are drawn in correspondence of a trade which is in turn, proven by supporting documents such as the Bill of Lading, invoice and consignment note. The mere fact that the IAB Drafts and Contract Notes were signed without any precursor reference to any of these trade documents is a clear indication of total disinterest of the truth of these documents. “PC Ok. What other documents for the transaction would accompany the contract note and the draft? KAMALUL None. 23    PC So you were provided with the invoice bill of lading and consignment note? KAMALUL No. PC Did you asked for it? KAMALUL No.” b. Chan’s reckless act [45] Similarly, Chan as another authorised signatory has also admitted that he did not even bother to request for supporting documents before signing the Contract Notes and IAB Drafts. PC Ok, so when you sign these documents in blank with no supporting documents, did you at any stage ask anyone for any explanation? Chan No. … 24    YA …Does it mean to say whatever documents that the Finance Department put on your table, you just sign it? Chan Yes, My Lady.” [46] Chan has the utter audacity to admit such recklessness and ignorance directly to this Court. c. Mohan’s reckless act [47] Mohan’s reckless acts even go beyond his act of blindly signing the Contact Notes and IAB Drafts. Mohan has even admitted that in certifying copied documents as true, especially the Bills of Lading and Consignment Notes, Mohan did not even bother to countercheck the copies with original documents (if any). Clearly, Mohan in certifying these documents have no interest at all in ascertaining the authenticity of the representation they carry: “MOHAN What was presented to me by my officer and said that’s the original. 25    YA Again? What you said? How can you know? MOHAN My Lady, it was, I mean based on what was presented by my officer or the CFO, that it was the original PC So in other words, you, yourself are not sure. You maintain today it’s an original because you were told it was an original? MOHAN Because my officer said it’s the original. PC Yes, so you maintain it’s an original, because you were told it’s an original? MOHAN Yes, My Lady.” [48] It does not matter if the Defendants did not know or was not aware of the falsity. A reckless act shall be the same as a dishonest misrepresentation since the repercussion from the reliance of that misrepresentation remains the same notwithstanding the awareness of its falsity. 26    ii. The Defendants are dishonest in that the false representation is made knowingly [49] It is reiterated that this Court has no doubt of the Employees’ dishonest state of mind as they had ultimately failed to prove their innocence from supposedly pre-signing blank documents. [50] Adding salt to the wound, this Court in fact is persuaded that there are numerous evidences and in fact admissions by the Employees which denotes an overwhelming conclusion that the Employees indeed have full knowledge of their dishonesty and the fact that their representation was a false representation. Kamalul was well aware that there was not enough business during the time of the 24 fraudulent Bills of Lading to justify the 24 IAB applications [51] Kamalul during cross-examination admits that he knew that there were not much stock of spent catalyst coming through between December 2008 and June 2009 (the same period of time of the utilisation of the 24 fraudulent IAB applications) 27    [52] Kamalul adds that he admits that it should follow that since there was a bump in the stock in the year ended 30.6.2008, there would be a reduction of stock during the period of time of the 24 fraudulent applications. This was admitted after Kamalul was cross-examined on the massive reduction of stock from the year ended 30.6.2008 and the period of the utilisation of the fraudulent IAB applications: KAMALUL It was, I believe, a bumper year and there were– PC Meaning? KAMALUL Meaning there were several catalysts coming in all at the same time, I mean precious metal, yes. … PC What were the words you used earlier to describe the level of stock coming through between December, 2008, to June, 2009? KAMALUL There may not have been anything within that period. 28    [53] Kamalul admits he should have known that there would not be much business during the time of the fraudulent IAB applications were used: PC Yes. Now we come to the period from December 2008 to June 2009. You said there’s not much stock coming through and you also said that you wouldn’t expect to see any shipments as a result. KAMALUL Well, there shouldn’t be much shipment as a result, yes. [54] Kamalul continues to admit that people in the business would know whether there would be enough intermediate products generated to form the basis of export shipments for processing. “PC That’s why you don’t know, you know, but what I’m saying is the people in the company will know whether or not there’s enough stock coming in, enough intermediate product 29    being generated to form the basis of export shipments for processing. KAMALUL Yes.” [55] Not only that Kamalul admits that he was well aware that there were no business to justify all of the IAB applications, Kamalul even admits that the proceeds from the fraudulent IAB applications were paid directly to the companies’ current account, was used to pay matured IABs and has successfully albeit fraudulently kept the companies out of the water. [56] Now, the fact that Kamalul is aware of the cash flow difficulties the companies were facing because of the lack of business adds further credence to the probability that the Defendants were well aware of false representation. [57] Thus, in light of the mass of admissions above, this Court finds that the Defendants have indeed dishonestly made false representations against the Plaintiff. iii. The false representation was intended to be relied upon 30    [58] The sheer fact that the IAB applications were forwarded to Maybank for approval and drawdowns is sufficient proof that the Defendants intended for the false representation to be relied upon. iv. The false representation was in deed relied upon [59] It is not disputed that the Plaintiff has granted the drawdowns to the Defendants upon their fraudulent IAB applications. [60] Thus, upon the resounding satisfaction of all the elements of the tort of deceit, this Court finds on the balance of probability that Kamalul, Chan and Mohan are undeniably liable for the tort of deceit to defraud Maybank (Plaintiff). (see Sinnaiyah & Sons v Damai Setia [2015] 5 MLJ 1) C. KAMALUL, CHAN AND MOHAN ARE PERSONALLY LIABLE FOR NEGLIGENT MISSTATEMENT / MISREPRESENTATION i. Existence of a Special Relationship [61] With regard to this 1st element to prove negligent misstatement, this Court refers to the classic and well-received decision of the 31    House of Lords in the case of Caparo Industries PLC v Dickman and others [1990] 1 ALL ER 568. The House of Lords has affirmed Richmond P’s observation in the case of Scott Group Ltd v McFarlane [1978] 1 NZLR 553: “All the speeches in Hedley Byrne seem to me to recognise the need for a “special” relationship: a relationship which can properly be treated as giving rise to a special duty to use care in statement. The question in any given case is whether the nature of the relationship is such that one party can fairly be held to have assumed a responsibility to the other as regards the reliability of the advice or information. I do not think that such a relationship should be found to exist unless, at least, the maker of the statement was, or ought to have been, aware that his advice or information would in fact be made available to and be relied on by a particular person or class of persons for the purposes of a particular transaction or type of transaction.” [62] There is no doubt at all that in the present case, that the Employees, being mandated as the authorized signatories on behalf of AEM and AB in the companies’ IAB applications, would 32    be fully aware that their authorization and signing of the documents of the IAB applications and the applications itself when submitted to the Plaintiff, the Plaintiff Bank would rely on their authorization on the authentication of the IAB applications for a particular transaction (being the IAB drawdowns). [63] Thus, the Employees indeed owe a duty of care against the Plaintiff Bank and have a special relationship with the Plaintiff Bank. And it has already been discussed at length the sheer magnitude of the Employees’ incompetence, ignorance and dishonesty and thus, there is no doubt that the Employees have fallen well below the standard of care owed to Maybank (Plaintiff). ii. The Employees have voluntary assumed responsibility for what was represented to the Plaintiff in the fraudulent IAB applications [64] There is no doubt here, that the mere fact that it is the internal mandate of the companies that the Employees shall be their authorized signatories, and the Employees without any reservation or disclaimer accepts and have even performed the mandate, proves that the Employees have voluntarily assumed responsibility 33    to the authenticity and correctness of the IAB applications presented to the Plaintiff. iii. It was reasonable for Maybank (Plaintiff) to rely on the Employees’ representation from the fraudulent IAB applications [65] It is reasonable for the Plaintiff, being aware that the Employees are the authorized signatories of the companies, to rely on the Employees’ authorization of the IAB applications’ authenticity as the IAB applications, prima facie seems to be in check. It has already been decided in the case of Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 331 that a bank is entitled to treat the customer’s mandate at its face value save in extreme cases. iv. Maybank (Plaintiff) indeed has relied upon the Employees’ representation and has suffered a foreseeable detriment [66] Indeed it is undisputed that the Plaintiff has granted the drawdowns upon the fraudulent IAB applications and the Plaintiff would not have granted these drawdowns but for (if not for) the Employees’ fraudulent IAB applications. 34    D. THE EMPLOYEES’ LIABILITY FOR THE TORT OF DECEIT AND NEGLIGENCE IS ATTRIBUTABLE TO AEM AND AB [67] This Court is mindful that the effect of incorporation is the establishment of a separate entity disparate from the individuals in that corporation. However, this Court is equally mindful that the existence of this fictional persona is separate from the individuals maneuvering the company only to a limited extent. It cannot be denied that this entity is devoid of any tangible form, and mind. It is merely a conceptual existence. It cannot be denied that to an extent, the will, the decision and the entity’s representation is shouldered by select natural persons who might as well steer the entity’s representation into a deceitful representation or a negligent representation. Hence, in this circumstance, the law permits that the corporate entity to be attributed to the individuals managing the corporation. It was held in the case of Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 ALL ER 918 that: “Not every act on behalf of the company could be expected to be the subject of a resolution of the board or 35    a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort.” [68] It was similarly held by our Court of Appeal in the case of CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1 that: “As a general rule, the acts and omissions of a servant or agent of a natural person are attributed to that person when those acts are done in the course of employment. When operating in the sphere of the law of contract this is called the doctrine of agency and when operating in the 36    sphere of tort law it is known as the doctrine of vicarious liability” [69] Thus, a natural person(s) liability (in the present case the Employees’ liability) is attributable to AEM and AB: i. under the law of contract, under the doctrine of agency; and ii. under the law of tort, under the principle of vicarious liability i. Attribution vide the doctrine of agency [70] Succinctly in the present case, AEM and AB (as principals) have authorised the Employees (the agents) to act on their behalf (as authorised signatories) for IAB applications. [71] The Employees’ authority as agents may either be actual authority (express or implied) or ostensible authority. [72] An express authority is simply an authority bestowed by the principal to its agent by oral or written means while an implied authority is simply an authority implied to the agent inferred from 37    circumstances of the case. (see Sections 139 and 140 of the Contracts Act 1950) [73] An ostensible/apparent authority is an authority derived from representations made from the principal with regards to its agent. (see Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB) The Employees are agents with Express Actual Authority [74] It has already been admitted that the Employees were expressly mandated by AEM to be authorised signatories regarding the documents for IAB applications. The same actual authority of this mandate has been admitted by the Employees vide their testimonies and have been discussed at length earlier in this judgment. The Employees have acted within the scope of Agency [75] Albeit fraudulent, the act of the Employees in signing, authorising and certifying the documents forming the IAB applications were exactly the mandate which was expressly bestowed by AEM. 38    Thus, the Employees have indeed acted within the scope of their agency. [76] Therefore, in light of the above, it is this Court’s judgment that the Employees’ liability for the tort of deceit, negligence and breach of contract is attributable to both AEM and AB. ii. Attribution vide vicarious liability [77] The recent case of Zulkiply bin Taib & Anor v Parabakarar a/l Bala Krishna & Ors and other appeals [2015] 2 MLJ 607 has affirmed the trite elements to prove vicarious liability. Each of these elements shall be categorically addressed and determined by this Court in the following paragraphs in this section. There exists an Employer and Employee Relationship between AEM and AB and the Employees [78] It is reiterated here that it has already been admitted by all of the Employees that all of them are employees of the companies, Kamalul being AEM and AB’s director, Chan being the Chief Technical Officer of the Aldwich Group (inclusive of AEM and AB) 39    and Mohan being the Group Chief Financial Officer as well as company secretary of the Aldwich Group. There exists a commission of wrong by the Employees [79] This Court reiterates that as per the lengthy discourse above, the Employees indeed have committed wrongs in that they are liable to the tort of deceit, fraud, and also negligence (negligent misstatement). The Commission of Wrong was indeed in the Employee’s Course of Employment [80] In the same case of Zulkiply Taib the court has held that a wrongful act can be deemed to be in the course of employment if the wrongful conduct either was: i. Authorised by the employer; ii. An unauthorised mode of doing something authorised by the employer; or 40    iii. So closely connected with his employment that it would be fair and just to hold the employer vicariously liable [81] It was opined by the Court of Appeal in Zulkiply Taib’s case that: “We respectfully agree with the decisions of the above cases. In our opinion, if a close connection between the deviated actions of an employee and the purpose or nature of his employment is established by certain factual evidence, an employee may be found to be acting within the scope of his employment” (see also Lister v Hesley Hall Ltd [2002] 1 AC 215) [82] In the present case, similarly as decided above, there is no doubt that the Employees have committed the wrong in the course of their employment as they have done exactly what was mandated to them by AEM. And on the basis of the above principle of close connection, it is patently clear that even if the Employees’ act of forming fraudulent IAB applications might be seen as a deviation from their course of employment, it is undeniable that their conduct in authorising, signing, and certifying the IAB applications are 41    inextricably woven with the mandate given by AEM to the Employees. Thus, this Court finds that the wrong committed by the Employees indeed was committed within the course of their employment with AEM and AB. [83] Herein, upon the satisfaction of all the elements of vicarious liability, this Court finds that both AEM and AB are vicariously liable for the deceit and also negligence of its Employees. AEM and AB is attributable to the Employees deceit and negligence vide the Identification Doctrine [84] The Identification Doctrine was propounded on a similar sentiment in that the Court acknowledges that albeit a corporation is a separate entity in itself, this entity remains to be under the will and steer of its agent or alter ego. [85] There’s no denying that the alter ego of a company must be its management personnel and the law acknowledges that there are personnel that forms and directs the mind and will of a company. 42    [86] Different from the Doctrine of Attribution, the Identification doctrine is not based on the principle of agency or vicarious liability. The Identification doctrine is simply the principle that in the circumstance that the law requires personal apportionment of fault as a requisite of proving liability in tort, the fault of the managing personnel of the company shall be the personal fault of the company so long that the managing personnel directs the mind and will of the company for the purposes of an impugned transaction. (see El Ajou v Dollar Land Holdings PLC [1994] 2 All ER 685) [87] Lord Denning has approved this principle in His Lordship’s decision H L Bolton (Engineering) Co. Ltd v T J Graham & Sons Ltd 3 All ER 624: “A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and 43    managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in Lord Haldane's speech in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd ([1915] AC 705 at pp 713, 714).” [88] There is not a single shade of doubt that in the present case, the Employees are actively directing the will and mind of the Companies particularly in the submission of the 24 fraudulent IAB applications which were authenticated by their signature and authorisation. Thus, the Employees’ dishonest state of mind in the deceit and negligence should be attributed to both AEM and AB on the basis of the Doctrine of Identification. [89] Herein, on the foregoing discussions, this Court hesitates nothing to find that the Employees’ liability in the tort of deceit and negligence shall be attributed to both AEM and AB. 44    E. KAMALUL’S PERSONAL LIABILITY AS DIRECTOR OF AEM AND AB [90] It is also settled law, and remains undisputed by the Defendants that a tortious act committed under the banner of a company shall be the personal liability of the company’s director if it can be proven that the director has authorized, directed and procured the commission of the tortious act. This principle was propounded in the case of C Evans & Sons Ltd v Spritebrand Ltd & Anor [1985] 2 All ER 415 and was the same principle was echoed in our local chapter by the Court of Appeal in the case of Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 in which the Court of Appeal has relied upon the same case relied upon by the English Court of Appeal in C Evans’ case, the case of Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1: “THE LAW [8] In C Evans & Sons Ltd v Spritebrand Ltd & Anor, Slade LJ relying on the case of Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 stated the legal position in the following words: 45    The mere fact that a person is a director of a limited company does not by itself render him liable for torts committed by the company during the period of his directorship: see, for example, Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano Co Ltd [1924] 2 AC 465 at 488,…. Nevertheless, judicial dicta of high authority are to be found in English decisions which suggest that a director is liable for those tortious acts of his company which he has ordered or procured to be done.” [91] Relevant to the present case, it remains admitted and undisputed that all of the 24 fraudulent IAB applications all bear the authorisation and signature of Kamalul as AEM’s and AB’s director. [92] Now, the only retort that was afforded by the Kamalul is by virtue of his supposed ‘innocent’ act of pre-signing blank Contract Notes and IAB Drafts, Kamalul has not directed, authorized and procured the commission of the deceit. However, this Court must sternly 46    reiterate that there is a dire absence of evidence for this Court to pay a single heed to this bare assertion. It was merely Kamalul’s self-serving unsubstantiated oral testimony. It is a set rule of law that Contemporaneous documentary evidence trumps over, and has greater probative value against self-serving oral evidences. It was recently decided by the Court of Appeal in Leisure Dotcom Sdn Bhd v Globesource Sdn Bhd [2015] 5 MLJ 789 that: “The attempt by the witnesses called by the vendor to contradict those express words in contemporaneous documents by way of oral testimony before the court should have been treated with circumspect, if not rejected outright, as self-serving and an attempt to salvage what was otherwise an untenable position asserted by the vendor based on the train of factual events and developments in the matter.” [93] Thus, in absence of any contradicting evidence of the contemporaneous documents in the present case, it is only judicially appropriate that this Court rejects this contention by the Defendants and accept that the contemporaneous documents (being the IAB applications and its documents) have sufficiently 47    proven that indeed Kamalul as the director of AEM and AB has directed, authorised and procured the commission of the tort of deceit. Thereto, this Court finds that Kamalul is personally liable for the companies’ liability to the tort of deceit and negligent misstatement or misrepresentation. F. AEM AND AB’S NEGLIGENCE AGAINST THE BANK [94] At this juncture, since it has already been established in the preceding sections of this Judgment that the tortious act of the Employees is equally attributable to the companies, it naturally entails that AEM and AB have breached its duty of care owed against the Plaintiff Bank. AEM and AB owes a duty of care against Maybank (Plaintiff) [95] In the simplest enunciation, Lord Atkin in the classic case of Donoghue v Stevenson has stated that the law would suppose a duty of care if a claimant suffering damage, is a “neighbour” to the alleged tortfeasor. A neighbour in turn, is a person who is within the reasonable and fair proximity that he would be adversely affected by the act of the tortfeasor. 48    (see also Caparo’s case) [96] Upon the principle above, this Court has no doubt in finding that Maybank (Plaintiff) indeed was within the proximity of being adversely affected by the companies’ act (particularly the Employees’ act). Any sound and reasonable person would infer in plain common sense that the acts of the Companies’ employees in its representations to the Plaintiff regarding the IAB applications would adversely affect the Plaintiff (in that Maybank (Plaintiff) would be unlawfully deprived of its monies if it draws down monies in reliance of the companies’ fraudulent IAB applications). AEM and AB have breached their standard of duty of care [97] Now, the standard of care owed by AEM and AB is derivative from the purpose in which the IAB facilities were granted to AEM and AB. The purpose of which is for the financing of the Companies’ genuine business and trade. Thus, the Companies owe a standard of duty of care to ensure that all their trade, trade documents, shipping documents, and applications to the bank are properly verified to be authentic and genuine. And this Court has extensively discussed and found earlier that the Companies have 49    utterly fallen well below this exact standard of care. None of the Companies’ Employees even bother to make a single act of verifying of the authenticity and truthfulness of the basis of the fraudulent IAB applications. They have admitted to gross disregard to the truth and genuineness of the IAB applications. In fact, it is reiterated that this Court finds that the Employees have defrauded the Plaintiff in full knowledge of their dishonesty. [98] As was stated earlier, the Defendants in this case may either be incomprehensibly reckless, careless, clueless, utterly irresponsible, and downright incompetent Employees (particularly Kamalul, Chan and Mohan) OR that indeed all the Defendants in this present case had knowingly set up and participated in the fraudulent scheme to recycle the Plaintiff’s IAB facility. Either way, both circumstances go well below the standard of care owed by the Companies. Thus, indeed the Companies have breached their duty of care owed against Maybank (Plaintiff). Causal link between the breach and injury suffered by Maybank (Plaintiff) 50    [99] It remains undisputed that the Plaintiff had only disbursed monies to the Companies’ current accounts upon the Companies’ fraudulent IAB applications. Thus, Maybank (Plaintiff) would not have been defrauded of its monies but-for (if not for) the Companies’ 24 fraudulent IAB applications. (see Chua Seng Realty Sdn Bhd v Say Chong Sdn Bhd & Ors and other appeals [2013] 2 MLJ 29) Foreseeability of Plaintiff’s losses (Remoteness) [100] It is only natural that it is vividly foreseeable that Maybank (Plaintiff) would have suffered losses from the fraud and negligence of the Companies. Upon the representation of the authenticity of the IAB applications, it is reasonably foreseeable that Maybank (Plaintiff) would disburse its monies upon the IAB applications. Any reasonable and sound person would have foreseen the same. [101] In light of the satisfaction of all the elements of negligence, this Court finds that both AEM and AB are personally and equally liable for negligence against Maybank (Plaintiff). 51    F. NEGLIGENCE OF THE PLAINTIFF IS NO DEFENCE TO THE DEFENDANTS’ TORT OF DECEIT [102] It has already been preliminarily stated that this Court shall never be an instrument of fraud. It is utterly improper for this Court to go at lengths contemplating whether or not the Plaintiff has been negligent in being the victim of the fraud, when the fact of the matter is that the party pleading the negligence of the Plaintiff is the exact same party who has methodically perpetrated, orchestrated and admits to have benefitted from their own deceitful act. [103] No fraudster shall ever be exonerated off of liability merely by contending that the victim of the fraud was ‘gullible’ enough to be fooled by the fraud. [104] This Court draws valuable guidance from the decision in the case of Bumiputra Commerce Bank Bhd v Siti Fatimah Mohd Zain [2011] 2 CLJ 545. The Court has held that: “With the evidence that was presented and even allowing for all the possible inferences to be made in her favour, it was 52    my assessment that, at the very least, she knew of the mistake by the bank in making available the overdraft facility. Of course at the worst, she was complicit to the illicit plan to defraud the bank. In either case, she was certainly not acting in good faith. In fact, the evidence, as I have alluded to thus far, shows that, if not dishonesty, there was certainly an element of bad faith on her part. Her claims of fault on the part of the bank must be seen in this light. In any event, a consideration of fault or even negligence or carelessness on the part of the plaintiff bank, as the law suggests, is irrelevant. It was beyond doubt that the defendant had been enriched at the expense of the plaintiff bank. In the circumstances, it would be unconscionable and inequitable and therefore unjust to deny restitution to the plaintiff bank.” [105] As succinctly put by the Court in the above case, it would be unconscionable and inequitable as well as unjust to allow the enrichment of the Defendants from this fraud merely because the Plaintiff’s alleged negligence. 53    [106] The esteemed authors of Clerk & Lindsell on Torts (20th ed) at 18-37 have expressed a similar sentiment: “it does not lie in the mouth of the defendant to argue that the plaintiff was foolish to take him at his word. As stated in Peekay Intermark Ltd v Australia v New Zealand Banking [2006] 2 Lloyd’s Rep 511 at [40], “it is not enough to show that the claimant could later have discovered the truth, but that he did not discover it.” [107] This principle has been encapsulated in the latin maxim, ex turpi causa non oritur actio, which means an action does not arise from a dishonourable cause. The same maxim has been adopted by Lord Mansfeild in the case of Holman v Johnson (1775) 98 ER 1120; (1775) 1 Cowp 341: “no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act” [108] The same principles above has been adopted in the local chapter in the case of Nazori bin Teh & Anor v Tay Lye Seng & Anor 54    [1995] MLJU 154 and also Sukatno v Lee Seng Kee & Anor [2009] 4 CLJ 171. [109] Just for the sake of completeness, the Defendants have contended that the Plaintiff should have known that the fraudulent IAB applications were a sham as there were indication of purchases of precious metals with HSBC, a bank (which the Defendants allege does not deal with the trade of precious metal) [110] Against this contention, this Court has three (3) brief retorts. Firstly, the Defendants cannot be allowed to approbate and reprobate as and when it is beneficial to their stance. (see Verschures Creameries, Limited v Hull and Netherlands Steamship Company, Limited [1919 V. 171; Bato Bagi v Kerajaan Sarawak [2011] 6 MLJ; Sheperd v Harrison (1871) LR 5 HL). The Defendants cannot be allowed to first, initially represent that the IAB applications were genuine applications, and when it is convenient to their exoneration of liability, turn back on their own words and contend that Maybank should have known that the IAB applications were a sham. 55    [111] Secondly, the Defendants should be estopped from contending against their own conduct and representation on the genuineness of the IAB applications. That was the status quo represented by the Defendants and the Defendants cannot now contend otherwise. (see Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331) [112] Thirdly, it was already admitted by Kamalul himself in his testimony that the Companies have habitually dealt with HSBC in its business. G. THE DEFENDANTS HAVE BEEN UNJUSTLY ENRICHED FROM THE FRAUD AND/OR NEGLIGENCE [113] It is reiterated here that Kamalul has readily admitted that the drawdowns from the fraudulent IAB applications were paid to the Companies’ current accounts. It was even admitted that the Companies have used the same monies to pay mature and overdue IABs. [114] The law on unjust enrichment is not a mere vague stranger to the local chapter. The Federal Court in the case of Dream Property 56    Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 has recently held: “Nearer home, there is now no longer any question that unjust enrichment law is a new developing area of law which is recognised by our courts…In our view, the time has for this court to recognise the law of unjust enrichment by which justice is done in a range of factual circumstances, and that the restitutionary remedy is at all times so applied to attain justice” [115] The Federal Court has laid down the elements to prove Unjust Enrichment in the same case and this Court shall categorically determine each of the elements in the following paragraphs: The Defendant must have been enriched by the retention of a benefit [116] Clearly, as reiterated above, the Defendants have all readily admitted that the Companies were kept afloat by virtue of the proceeds from the fraud and negligence. 57    The benefit must be retained at the expense of the Plaintiff [117] Without a doubt, the drawdowns from the fraudulent IAB applications were made by the Plaintiff bank, and the Defendants retained this benefit from the drawdowns at the expense of Maybank (Plaintiff). The retention of benefit must be unjust [118] It obviously entails from the fact that the Defendants have since retained the benefit from their deceit and negligence, that the retention and utilisation of the drawdowns was patently unjust. [119] Thus, this Court finds that indeed the Defendants have been unjustly enriched at the expense of the Plaintiff Bank. H. MISCELLANEOUS The Defendants’ untenable case of Conspiracy to defraud [120] It is verily unnecessary for this Court to go at lengths to discuss this untenable contention of the Defendants. There was absolutely 58    no evidence at all led by the Defendants to prove conspiracy in any shape or form that implicates the Companies’ officers and Maybank’s officers. It is merely a bare assertion. [121] As it stands, the elements to prove conspiracy, as laid down in the case of SCK Group Bhd v Sunny Liew Siew Pang & Anor [2011] 4 MLJ are: i. There must be an agreement between two or more persons; ii. The agreement is to do an unlawful act, or a lawful act by unlawful means; and iii. The unlawful act, or lawful act by unlawful means causes damage to the complainant [122] Now, what agreement that this Court can infer from the facts of the present case is not a conspiracy between the Companies’ officers and Maybank’s officers. It must be minded that it is the Bank that was defrauded here. It is verily more compelling that there is instead an agreement between the Companies Employees to fabricate fraudulent IAB applications to cause damage to the Bank. 59    [123] Furthermore, there is no damage suffered by the Defendants from the drawdowns based on the fraudulent IAB applications. It was Maybank who was injured from the Defendants’ fraud and negligence. [124] It was even admitted that the proceeds from the drawdowns was utilised by the company. Kamalul admitted that the same drawdowns were used to pay the matured trade bills in lieu of any genuine business. It was further admitted by Kamalul that the drawdowns kept the company afloat. [125] Thus, it is this Court’s judgment that the Defendants have no case of a tort of conspiracy against the Plaintiff Bank. The Defendants are estopped from contending on the utilisation of the proper Utilisation Form [126] It is also another fallible contention by the Defendants that the Bank has negligently processed the IAB applications although 60    there were no utilisation of the proper Utilisation Form as prescribed under the Letter of Offer. [127] However, this Court is satisfied that Kamalul in his testimony has sufficiently admitted that the Companies have waived the usage of the Utilisation Form and have always applied for drawdowns since 2005 without the Utilisation Form. Thus, the Defendants should be estopped from contending against its own representation, understanding and conduct in waiving the utility of the Utilisation Form. (see Boustead’s case) Kamalul’s filing of the Police Report regarding the Deceit is not any proof of innocence or honesty [128] Kamalul also contended that the fact that he had filed a police report on the deceit negates any inference of a dishonest state of mind. However, this Court reiterates that the dishonest state of mind of the Employees has been discussed at length and this Court finds that there are overwhelming evidences, inclusive of Kamalul’s own admission that indicate Kamalul’s total lack of innocence and dishonesty. 61    [129] The filing of the police report might as well be a front, or a ruse to further cloak Kamalul’s deceit as Kamalul does contend (although thoroughly unsuccessful) that he had ‘innocently’ pre-signed blank Contract Notes and IAB Drafts of which this Court finds it totally unacceptable. The fact that the Employees were not prosecuted alongside Assari is no proof of their innocence [130] Another contention by the Defendants is that the fact that the Attorney General has not prosecuted the Employees for the investigated fraud is a conclusive evidence of the Employees’ innocence. [131] However, there were no authorities at all forwarded in support of this contention. And it is understandable why such precedent is non-existent as it is not this Court’s place to speculate the underlying reason behind the Attorney General’s decision to not prosecute the Employees. This Court draws an adverse inference against the Defendants for failing to call Anas as a witness 62    [132] It is the Defendants’ staunch contention to make Anas as their scapegoat in that Anas has conspired with some officers of Maybank (Plaintiff) to defraud the Companies. Having such strong contention in mind, it is verily perplexing that the Defendants were reluctant or have failed to call Anas, the supposed mastermind of the whole ‘conspiracy’ as their witness. It is verily clear that Anas would be an essential witness in the Defendants’ case to shed more light on their contentions. Thus, it is only proper that this Court draws an adverse inference against the Defendants’ failure or reluctance to call Anas as witness. (see Section 114 (g) of the Evidence Act 1950; Goon Choy Fook v Lai Poh See [2012] 6 MLJ 627 (CA)) Defendants’ liability under the Letter of Offer [133] As had been preliminary found, the Plaintiff’s action in tort is not mutually exclusive from its action in contract. It is undisputed that it is the fraud and negligence of the Defendants that had led to the non-performance and breach of the Letter of Offer. 63    [134] Thus, as per Clause 16 of the Letter of Offer the Defendants in their tort of deceit and negligence, have breached the letter of offer in that firstly they have defaulted payments of matured IABs, and secondly, in that the Defendants have made false representations in their IAB applications. [135] Consequently, the Plaintiff is at liberty to suspend all of the facilities and further recall the same as per Clause 16.2 and Clause 18.5(a) of the Letter of Offer. I. COURT’S DECISION AND DIRECTIONS [136] In light of all of the above findings, it is this Court’s decision that the Plaintiff has clearly proven its case against all of the Defendants. [137] This Court hereby allows the Plaintiff’s Claim and also Counterclaim. This Court also hereby dismisses all of the Defendants Defence and Counterclaims. 64    [138] This Court hereby finds that all of the Defendants are jointly and severally liable to the tort of deceit, negligent misrepresentation, negligence and also breach of Contract. [139] This Court hereby orders that all of the Defendants are jointly and severally liable to pay to Plaintiff Bank, the outstanding amount of RM 75, 443, 634.11, compensation on the outstanding amount calculated as at 30.4.2010 (as per the letter of demand dated 21.5.2010) until the date of payment at the prevailing Islamic Interbank Money Market Rate. On the issue of costs [140] Having heard the submissions from the learned counsels for the Plaintiff and the Defendants, this Court hereby orders the Defendants to pay the Plaintiff a global sum of RM 200,000.00 in costs. The costs of RM200,000.00 awarded to the Plaintiff is a global costs for the Plaintiff’s Claim and Counterclaim and the Defendants’ Counterclaims considered together. This costs are to be paid to the Plaintiff by the Defendants jointly. 65    ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 30th November 2015 For the Plaintiff - Tetuan Shearn Delamore & Co Encik Rabindra S Nathan Encik Lucas Lim Cik Mah Sue Ann For the Defendants - Tetuan Netto & Yohendra Dato V. Manokaran Encik Yohendra Tetuan Kumar & Associates Cik Yoshini

Tika 2.6.0

22-1026-2009

PLAINTIF GERBANG PERDANA SDN BHD DEFENDAN 1. MTD ACPI ENGINEERING BERHAD (formerly known as "ACP INDUSTRIES BERHAD") 2. IC & E GROUP SDN BHD

24/11/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d3ab7e06-742f-49b6-b5d7-dbcacceb8357&Inline=true

Microsoft Word - 22-1026-2009 Gerbang Perdana Sdn Bhd Lwn MTD ACPI Engineering Berhad dan 1 lagi 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 22-1026-2009 BETWEEN GERBANG PERDANA SDN. BHD. .... PLAINTIFF AND 1. MTD ACPI ENGINEERING BERHAD (formerly known as “ACP INDUSTRIES BERHAD”) 2. IC & E GROUP SDN. BHD. .... DEFENDANTS GROUNDS OF JUDGMENT (After full trial) A. BACKGROUND FACTS [1] This is a civil suit filed by the Plaintiff against the Defendants pertaining to the famous crooked bridge which was intended to serve as a second linkage between Malaysia and Singapore which did not materialise. 2    [2] Basically, this suit revolves around a construction contract, known as “Design, Construction, Completion and Commissioning of Gerbang Selatan Bersepadu Road Bridge, Rail Bridge and Associated Works at Johor Bahru, Johor (“Bridge Contract”) and a construction contract known as “Design, Construction, Completion and commissioning of Integrated Customs, Immigration and Quarantine Complex at Johor Bahru, Johor (“CIQ Contract”) wherein both of the Contracts were combined into one development project named as “Projek Gerbang Selatan Bersepadu” (“the GSB Project”). [3] The Plaintiff was appointed by the Government of Malaysia (Government) as the main contractor to carry out the GSB Project (“Main Contract”). The Plaintiff then divided the scope of the GSB Project into several packages and one of the packages under the Bridge Contract was “land approach RBS 03” (“the Sub- Contract or RBS 03 Sub Contract”). This suit, however only concerns the RBS 03 Sub-Contract. [4] It is to be noted here that before the trial proceeded, the parties have agreed that the issue of liability shall firstly be determined by 3    this Court while the issue of quantum will only be decided at the quantum stage if liability is then established. [5] It is also to be noted that in the midst of the trial, the First Defendant (1st Defendant) and the Second Defendant (2nd Defendant) had resolved the original claim between the 2nd Defendant and the 1st Defendant by the entry of a Consent Order dated 30.6.2015. And thus, the issue of liability herein to be decided by this Court is only in respect of the Plaintiff’s claim against the Defendants. However, from the pleadings filed before this Court, it is clear that that no claim has been made by the Plaintiff against the 2nd Defendant. The pleadings indicate that the 2nd Defendant is a party to this action merely because it is a joint venture partner of the 1st Defendant and accordingly, a party to the RBS 03 Sub Contract. [6] This Court must highlight here that this present suit, being a construction-related matter, the parties had filed into this Court pleadings that run to hundreds of paragraphs as well as an enormous amount of contents and voluminous bundles of documents. Whereas, as a matter of fact this case is basically a claim in respect of work done in furtherance of an agreement, and 4    the entitlement of payments for the work done. It is merely a case of a claim for quantum meruit. [7] Despite the hefty outlook of the present case, this Court does not find it necessary to go at an extremity of lengths to decide on the issue liability arise in this suit. In fact, some of the major contention of the parties (particularly the Plaintiff’s) is verily a non-issue to begin with, and has no bearings at all to the indubitable conclusion of the case. [8] The Plaintiff in this case is Gerbang Perdana Sdn Bhd, a limited company incorporated in Malaysia under the Companies Act 1965. This Court takes cognisance that Gerbang Perdana Sdn Bhd (Gerbang Perdana) was incorporated solely for the GSB Project. [9] The 1st Defendant (MTD ACPI Engineering Berhad (formerly known as “ACP Industries Berhad”) and the 2nd Defendant ( IC & E Group Sdn. Bhd) are in essence an unincorporated Joint-Venture (“JV”) bound by a Joint-Venture Agreement dated 5.8.2003. 5    [10] The nexus between these parties are primarily hinged on the two contracts mentioned earlier i.e the Main Contract and the RBS 03 Sub-Contract. Firstly, the Contract between the Government and Gerbang Perdana dated 1.8.2003 for the complete construction of the Gerbang Selatan Bersepadu Road Bridge at Johor Bahru, in which the Government has appointed Gerbang Perdana as their Main Contractor (“Main Contract”). Secondly, the RBS 03 Sub- Contract between the JV (the Defendants) and Gerbang Perdana for performing a portion of works under the Main Contract. [11] The crux of the dispute arose when the Main Contract was repudiated by the Government on 12.4.2006. The Government then ordered Gerbang Perdana to submit its claim for works done, inclusive of the claims of any third parties aggrieved by the termination. Gerbang Perdana then undertook against the Government to collect claims, proof of claims and thoroughly and properly assess the claims of third parties (inclusive of the JV) in its letter to the Government dated 7.7.2006. The 1st Defendant then duly submitted its claims to Gerbang Perdana with documentary proofs. It was admitted and undisputed that Gerbang Perdana has incorporated the 1st Defendant’s claim in toto and had even appended the whole documentary 6    evidence of the 1st Defendant’s claim in Gerbang Perdana’s final claim to the Government dated 8.9.2006. There were countless reiterations and references of the RBS 03 Sub-Contract in numerous correspondences between the Plaintiff and the Government. It entails that consequent to Gerbang Perdana’s final claim, the Government has issued an ex gratia payment of RM154,999,999.00 to the Plaintiff to cover the whole extent of the claims from the third parties claimed vide the Plaintiff (inclusive of the 1st Defendant’s claim). This Court also takes cognizance and acknowledges the fact that it is undisputed that the Government of Malaysia had paid a sum of over RM257 million to Gerbang Perdana by the end of November 2006, of which RM102 million was for works done and RM155 million was for compensation. (see Exhibit D220 at page 642, B10) [12] Astoundingly, after claiming the full width and breadth of the 1st Defendant’s claim the Plaintiff refuses to furnish the payment to the 1st Defendant for its portion of work done and claimed. Perplexing to say the least, the grounds in which Gerbang Perdana refused payment were that: 7    i. The Sub-contract has been terminated vide a tri-partite meeting between the parties in 13.2.2006. ii. The 1st Defendant had not performed what it has claimed (which amazingly was admitted to have been performed) and has been adequately paid with an interim payment in which Gerbang Perdana (against its own admission and representation to the Government) contends to be the only work done by the 1st Defendant. [13] The Plaintiff in this action, prays to this Court for a declaration that the Sub-Contract has been mutually terminated and that the 1st Defendant is not entitled to claim against the Plaintiff. [14] The 1st Defendant’s case, on the other hand is that the parties have only agreed to agree to mutually terminate the RBS 03 Sub Contract due to the termination of the Main Contract by the Government. And it is therefore the contention of the 1st Defendant that there are two issues to be decided by this Court at this liability stage of the proceeding, namely; 8    i) Whether the Sub-Contract was mutually terminated 13 February 2006; and ii) Whether the 1st Defendant is entitled to obtain the benefit of the compensation paid by the Government under the Main Contract to the Plaintiff, in respect of the 1st Defendant’s works under the Sub-Contract. [15] The 1st Defendant in its Statement of Defence and Counterclaim is counterclaiming inter alia for: (i) Damages in the amount of RM21,551,065.43, or as assessed by this Honourable Court; (ii) Further or alternatively – (a) an order that the Plaintiff account to the 1st Defendant for all moneys received by it from the Government in respect of the 1st Defendant’s works; (b) an order that the Plaintiff pay to the 1st Defendant all sums found to be due to the 1st Defendant upon the taking of such account. 9    B. PRELIMINARIES The tenure and survivability of the Sub-Contract is irrelevant to the 1st Defendant’s entitlement for payment under the Sub- Contract for work done [16] Now, just the mere iteration of Gerbang Perdana’s grounds of refusal irks this Court’s Judicial and legal senses. It is patently clear that the entitlement or non-entitlement over the payment is contingent upon work done, and evidences proving work done. The entitlement to pay for work done is not contingent or dependent on the survivability of a contract. Even if a contract was subsequently terminated, whatever obligations to pay that arose during the tenure and life of that contract remains even after the demise of the contract. [17] It would be unimaginable that partisans to a contract can escape unscathed and totally eschewed from their payment obligations accrued during the tenure of the Contract just because the contract was terminated. It is already a time tested rule of compensation that either Expectation Interest, or Reliance Interest (not both) be paid for in case a contract is repudiated to bring parties as close as 10    possible to the position as if the contract was never entered into. And this is exactly the intent of the Government when it ordered Gerbang Perdana to collect and itemize claims from third parties aggrieved from the termination, and also the represented intent of Gerbang Perdana in undertaking to collect third party claims from sub-contractors and assess their claims for work done. The parties are in a mutual state of mind that sub-contractors are to be compensated for the work done which is a payment of Reliance Interest. The sub-contractors (particularly the 1st Defendant) has relied on the Sub-Contract and performed works at their own expense. It is only natural and common sense that notwithstanding the survivability of the Sub-Contract the obligation to pay for work done encompasses the life and demise of the Contract and an aggrieved party to a repudiation of a contract is entitled to be compensated for expenses incurred in reliance and/or furtherance of the Contract. [18] Now, in this present case, even assuming that this Court were to agree with the Plaintiff that the Sub-Contract has been terminated, it is this Court’s view that it does not derail from the legal consequence that the 1st Defendant remains entitled to compensation for works done. 11    [19] It is utterly incredulous that this Court to agree that a party to a contract may only claim for compensation for work done only during the tenure and life of the contract. This is verily preposterous. [20] This Court has had the opportunity to critically assess the supposed 6 Broad Terms (“Broad Terms”) of Mutual Termination contended by the Plaintiff which was supposedly encapsulated in numerous Drafts Deed of Termination which were never executed by any of the Parties. And, a plain reading of these supposed Broad Terms would identify that the Terms assimilate the same principle discussed here by this Court. [21] Although one of the Broad Terms stipulates that “there shall be no claims whatsoever and howsoever between the parties…”, numerous terms in the Draft Deed of Settlement clearly stand for the 1st Defendant’s entitlement of payment for work done, and the 1st Defendant’s rights to legally pursue its entitlements if the Plaintiff defaults in its payment of the 1st Defendant’s entitlement. Thus, further enforcing the fact that the termination of the Sub- Contract has no bearing at all to the 1st Defendant’s right to claim for compensation for works done: 12    “D. The Works have only been partially been completed by the JV and the portion of the works so completed…herein (hereinafter referred to as the “Work Done”). The parties have carried out and completed joint measurement of the completed works on the ____________.” 4. The Parties hereby agree that the Employer (in the present case, Gerbang) shall pay to the JV the sum of _________ only (hereinafter referred to as the “Progress Sum”) in full and final payment of…the Works completed… 8. Should the Employer make default in payment of any of the amounts under this Deed… the JV shall, be entitled to recover the defaulted sum from the Employer.” See McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; Blue Sea Pools Swimming Centre (Klang) Sdn. Bhd. V Loo Ah Chew & Sons Sdn. Bhd. [2003] MLJU 139; 13    Anglia Television Ltd v Reed [1972]1 QB 60; CCC Films (London) Limited v. Impact Quadrant Ltd [1985] 1 QB 16. [22] Thus from the very outset, be that as it may the Sub-contract was terminated, to which this Court disagrees, the 1st Defendant shall still be entitled to the payment for any work done, proven and admitted by the Parties. The correct test to determine entitlement [23] The litmus test to the entitlement then, is no longer whether or not the 1st Defendant is entitled to the compensation under the subsisting Sub-Contract. Instead the test is whether or not the 1st Defendant has successfully proven works done which entitles the 1st Defendant for a portion of the ex gratia payment retained and refused by the Plaintiff, Gerbang Perdana. The 1st Defendant is not bound by the 2nd Defendant’s pleadings merely because the Defendants are an unincorporated JV 14    [24] It is not a surprise that the 2nd Defendant would contend in agreement with the Plaintiff since Gerbang Perdana and the 2nd Defendant was managed and run by two brothers (Dato’ Yahya Abdul Jalil, the Managing Director of the Plaintiff and Hamzah Abdul Jalil, the Managing Director of the 2nd Defendant). The 2nd Defendant by and large shadows the Plaintiff’s contentions. [25] It was Gerbang Perdana’s contention that the 1st Defendant is bound by the pleadings 2nd Defendant which is in favour of Gerbang Perdana’s position. Gerbang Perdana placed reliance on the case of Kwan Chew Holdings Sdn Bhd v Kwong Yik Bank Bhd [2007] 2 CLJ 127 decided by the Court of Appeal. The Court of Appeal then decided that joint-venturers are principal and agent to each other and should be deemed as one single party. [26] However, it is totally deplorable that the Plaintiff were to submit to this Court, a decision which was reversed outright and set aside by the Apex Court of this Country, the Federal Court. Adding insult to the impropriety of this submission is the fact that the decision was reversed exactly on the legal preposition which the Plaintiff is relying upon. The Federal Court in direct reference to the Court of 15    Appeal’s ruling which was relied upon by the Plaintiff has explicitly iterated that: We regret to say that this proposition is too far-fetched and has gone beyond the bounds permitted by law. [27] Furthermore, the decision in the Court of Appeal has no mention at all that joint-venturers shall be bound by any one of the joint- venturers’ pleadings. That was not at all the Court of Appeal’s ruling. The Plaintiff has submitted to this Court a totally fallible, untenable, incorrect and inaccurate extrapolation of the law derivative from the Court of Appeal’s decision. A simple reading of the issues itemized by the Court of Appeal’s decision in Kwan Chew is sufficient to identify that there was no mention at all on any rules on pleadings between joint-venturers. The only issue of a joint-venture was the propriety, position and consequence of the appointment of an independent accountant in the project, whether that accountant may be deemed as a joint-venturer: The catchwords in the Court of Appeal decision read: 16    “BANKING: Banker and customer - Overdraft facility for housing project - Whether facility a bridging loan - Whether relationship between parties became fiduciary - Whether bank's failure to credit customer's account with end finance monies rendered project incomplete resulting in losses to customer CONTRACT: Breach - Overdraft facility for housing project - Bank's failure to credit customer's account with end finance monies - Whether project rendered incomplete resulting in losses to customer ” The issue and questions brought forth and dealt with by the Court of Appeal are: “The issues were: (1) whether the contract between the parties was in fact a bridging facility; (2) whether the interest should be taken into account when determining whether the plaintiff exceeded its overdraft limit; (3) whether the plaintiff breached the contract; (4) whether the plaintiff was not entitled to damages as it was only a member in the group of companies that were the defendant's customers; and (5) whether the defendant's appointment of an independent accountant to manage the said project was warranted since 95% of the said project was already completed as at the material time and also since the defendant 17    continued to dishonour the plaintiff's cheques despite the fact that they were signed by the independent accountant signifying the necessity and the propriety of the payments thereof.” [28] There is simply a total absence of any mention, of any ruling or rule of law regarding pleadings in the entire decision of the Court of Appeal especially between joint-venturers. [29] Thus, preliminarily this Court does not hesitate to find that the 1st Defendant is not by any means or lengths, bound by the 2nd Defendant’s pleadings. C. THE SUB-CONTRACT HAS NOT BEEN MUTUALLY TERMINATED VIDE THE TRIPARTITE MEETING, THE NEGOTIATIONS ON THE 6 BROAD TERMS AND EVEN THE EXCHANGE OF DRAFT DEEDS OF TERMINATION [30] It is reiterated here that there is really no necessity for this Court to delve into the factum that of the subsistence or the termination of the Sub-Contract. It simply does not matter. Nevertheless, for the sake of completion, and to further highlight the folly of the Plaintiff’s 18    case, this Court shall further decide on the subsistence of the Sub- Contract. [31] The Plaintiff has arduously argued that a mutual termination has been agreed upon during a tripartite meeting between Gerbang Perdana, the 1st and 2nd Defendant conducted on the same day of 13.2.2006 (“tripartite meeting”) after an initial meeting held on the same day. Again, there are plentiful admissions by the Plaintiff itself that this is indeed not the proper position of the parties. Instead, this Court finds that it is more probable than not that no such mutual termination was agreed upon either during the tripartite meeting, the exchange of correspondences and even in the exchange of Draft Deeds of Termination which were never agreed upon and executed. [32] Now, although the Plaintiff’s witnesses all contended that such mutual termination was agreed upon during the tripartite meeting, it is vividly clear that their testimony does not stand the test of the cross-examinations and more importantly the contemporaneous documents. It is a set rule of law that Contemporaneous documentary evidence trumps over, and has greater probative 19    value against self-serving oral evidences. (see Leisure Dotcom Sdn Bhd v Globesource Sdn Bhd (Court of Appeal)) [33] Thus, this Court does not hesitate to disregard self-serving oral testimonies which are in direct contradiction with admissions in contemporaneous evidences. Admissions of subsistence of Sub-Contract in contemporaneous documentary evidence submitted in Court i. Plaintiff’s own admissions before conducting the tripartite meeting [34] In anticipation of the meetings in negotiation of a prospect of termination, Gerbang Perdana vide Yoong Hoi Shing ( Executive Director of the Plaintiff – PW 2), in a letter dated 11.1.2006 [Tab 3, B20] admitted that: “All issues shall be dealt with in the proposed negotiations without prejudice and once settled, recorded in a settlement agreement…” 20    [35] Again, in Gerbang Perdana’s letter dated 7.2.2006 [Tab 4, B20], Yoong wrote and admitted that: “All issues shall be dealt with in the proposed negotiation without prejudice and once settled, recorded in a settlement agreement…” ii. Plaintiff’s own admissions after the tripartite meeting [36] In the Plaintiff’s own minutes of the tripartite meeting dated 14.2.2006 [Tab 8, B20] it was admitted and recorded that: “6. The negotiation on the dispute or difference was concluded with no resolution. 7. In view of the conclusion, both parties agreed to consider invoking mutual termination and to work out the details. [37] This piece of documentary evidence is overwhelmingly indicates that even the Plaintiff believes that there was no mutual termination agreed upon. It is blindingly clear that the parties were 21    still working out the details and this Court must stress that the parties merely considered the prospect of a mutual termination. When anyone is considering anything, it plainly means that one has not reached to any decision and/or conclusion. [38] This admission is further reinforced by another piece of important document which is Gerbang Perdana’s letter dated 15.2.2006 [Tab 9, B20] which Gerbang Perdana stands to unequivocally admit: “We refer to Negotiation Meetings between Employer and Contractor held on 10 February 2006 and 13 February 2006…We regret to note that the Parties have failed to reach any agreement for the settlement of the disputes and issues raised…” [39] There is not even any room for doubts here, that even the Plaintiffs are in agreement that there was nothing concluded or agreed upon during the tripartite meeting. [40] Accurately and accordingly, the JV records the same (fact that there was no final and conclusive agreement to terminate the Sub- Contract) in their reply letter to Gerbang Perdana, dated 16.2.2006, in which was never negated by the Plaintiff. 22    [41] In fact, it was further acknowledged and admitted by Gerbang Perdana in its reply letter to the JV dated 21.2.2006 [Tab 14, B20] that: “The details of the mutual termination are to be further worked out and finalized by all parties concerned” [42] This, Court is verily aware that it is in the same letter above as well that Gerbang Perdana proposed the 6 broad terms (“Broad Terms”) of termination which the Plaintiff alleged to have been accepted by performance in lieu of a signed and executed contract (which this Court vehemently disagrees). However, this Court shall deal with the tangent of termination vide the tripartite meeting and the Broad Terms separately as these points of supposed termination differs in time. The Court’s finding on the Broad Terms shall be dealt with later in this Judgment. iii. Plaintiff’s own admission and Representation leading up to the final consolidated claim to the Government 23    [43] In admission of the subsistence and operability of the Sub- Contract even AFTER the tripartite meeting, the negotiations of the Broad Terms, and the exchange of Draft Deeds of Termination, the Plaintiff has requested the 1st Defendant to submit its claim in clear adherence and reliance of Clause 29 of the Conditions of Contract contained in the Sub-Contract. (see Gerbang Perdana’s letter dated 5.5.2006 [Tab 34, B20]) [44] This is verily important to note. This directly contradicts the Plaintiff’s contention that the parties have reached a mutual termination of the subcontract AFTER the tripartite meeting, the negotiations of the Broad Terms, and the exchange of Draft Deeds of Termination. If indeed the Sub-Contract has been terminated then, there is no reason for the Plaintiff to request for the claim by purview of a provision of the supposedly terminated Sub-Contract. [45] Most pertinently, besides the fact that it has been admitted and represented between the parties that the Sub-Contract subsists, the Plaintiff also admits and represents the same to the Government. Ad Verbatim, Gerbang Perdana in its final claim to 24    the Government dated 8.9.2006 unequivocally represents, admits and acknowledges to the Government that: “ACPI and IC & E IS (*in the present tense, and not past tense ‘was’) a Joint Venture contractor for work package RBS03 (Land Approach). However, final claims were submitted separately to GPSB” (*emphasis added) [46] Moreover, in the same claim Gerbang Perdana has completely appended the 1st Defendant’s appendices in proving their claims. And one of these appendices records the following: “Without Prejudice” discussions between the Employer and the Contractor took place between 7 and 13 February 2006 but these discussions were inconclusive, and hence had no effect, as although it was agreed that under the circumstances a mutual termination of the Contract would be preferred solution by all parties, no agreement could be reached on the commercial or contractual terms of any mutual termination… In ACPI’s opinion, the alleged mutual 25    termination on 15 February 2006 was overtaken by the subsequent events thereafter… Clearly the Employer, prior to that time did not consider the Contract to have been mutually terminated” [47] Now, the Plaintiff is threading dangerous waters here in their contention. If indeed the Sub-Contract has been mutually terminated, then, Gerbang Perdana’s representation to the Government is akin to a falsification and a false misrepresentation. Bearing in mind that the final claim’s amount goes to a massive amount in the hundreds of million, such false misrepresentation cannot be taken lightly. Thus, the most probable fact must be that the Sub-Contract remains subsisting and has not been mutually terminated. [48] It is opportune at this juncture, while referring to Gerbang Perdana’s representation to the Government that this Court swiftly addresses the Plaintiff’s contention that the separation of claims between the Defendants is a proof of termination. Clearly with the representation above, the Plaintiff itself acknowledges that the separation of the claims does not derogate from the fact that the 26    JV still subsists. Thus, it is not any proof of a mutual termination, if the claims were made separate or otherwise. [49] Now, in light of all the above countless admissions by the Plaintiff, there is no room at any lengths or measure at all for any doubt as to the subsistence of the Sub-Contract. These documentary evidences staunchly indicate as such. Thus, it would be utterly unjust and verily prejudicial as well as detrimental against the 1st Defendant if this Court were to allow the Plaintiff to contradict the status quo represented and admitted by itself. This Court cannot allow the Plaintiff to simply elect to go for or against its own contention and representation as and when it is to their benefit. The Plaintiff should be estopped from contending such injustice. [50] This Court finds valuable guidance from the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 had referred to Lord Denning’s decision in the Amalgamated Investment case which reads: 27    “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go 28    back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) See also Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur v Sekutu Eksklusif Sdn Bhd [2010] MLJU 1303; Ho Shee Jan v Stephens Properties Sdn Bhd [1986] 2 MLJ 43. iii. The 6 Broad Terms were never agreed upon by the Defendants [51] Another tangent in which the Plaintiff sought to prove a mutual termination is from the aspect of the Broad Terms which were proposed in the Gerbang Perdana’s letter dated 21.2.2006. [52] It actually begs for no further discussion. It is plain to understand that the negotiations regarding the Broad Terms all took place within the month of February in the year 2006 which was BEFORE Gerbang Perdana’s final claim to the Government was made (of which Gerbang Perdana admits and represents the subsistence of the Sub-Contract). Thus, since the admission to the Government was made after the negotiation of the Broad Terms, it is by no 29    means that the Broad Terms were agreed upon and caused the Sub-Contract to be terminated. [53] Even if this Court were to entertain this contention, it is patently clear from the negotiation over the Broad Terms that the Broad Terms were discussed to the oblivion. Nothing was agreed, nothing was absolute, nothing was signed and executed, and ultimately there was no mutual consensus on the termination of the Sub-Contract. Even the Plaintiff’s letter of 21.2.2006 made an admission that the Broad Terms should be “further worked on and finalized…”. [54] Even the 2nd Defendant wrote in reply in the form of a Counter- Offer vide its letter to Gerbang Perdana dated 27.2.2006 in which the 2nd Defendant sought for an amendment to include new terms. [55] It is already settled law that counter-proposals/offers are not by any stretch of the legal and logical imagination, a qualified acceptance. (see New Selangor Plantations v Talam Management Services Sdn Bhd [1996] 4 CLJ 94 HC) 30    Absence of response to Gerbang Perdana’s Letter is not an unqualified acceptance [56] It was also contended that the 1st Defendant has admitted the proposed Broad Terms in failing to respond to Gerbang Perdana’s letter dated 21.2.2006. Against this contention, this Court has two retorts. Firstly, even if there is any absence of response, the letter by the Plaintiff itself admits that the Broad Terms were not finalized and agreed upon. Secondly, although a fact may be admitted by absence of response, but an acceptance of a contract cannot be inferred from an omission, or negative act. It begs no further iteration. Silence is NOT an acceptance. Performance of the Broad Terms is insufficient to prove acceptance due to the existence of an agreement to agree [57] Here, this Court is faced with the applicability of two valid doctrines of construction of contract. Gerbang Perdana on one hand relies on the case of Asiapools (M) Sdn. Bhd. v. IJM Construction Sdn. Bhd. [2010] 2 CLJ 28 which upheld the doctrine of acceptance vide performance of terms of a contract. Indeed, the law is no stranger to the inference of an acceptance derivative of 31    positive acts in performance of a contract (though not signed or executed). On the other hand, the 1st Defendant relies on the doctrine of construction that in cases where there exists a fact that there was an agreement to agree to an execution of a formal contract, nothing short of such formal contract signed and executed is sufficient to bring the contract in existence. The 1st Defendant relied upon the Court of Appeal decision in Ho Kam Phaw v Fam Sin Nin [1998] 3 CLJ 708. It was also decided by the Federal Court in Charles Grenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625 that: “An agreement to make an agreement does not result in a contract” [58] Now, before going any further with this issue, this Court must highlight here that this Court is also mindful that the decision of the Court of Appeal in Ho Kam’s case has been reversed by the Federal Court. No doubt that it was overturned, however the setting aside of the Court of Appeal decision has no mention of the principle of an agreement to agree requiring an explicit contract to be signed. It was reversed on other grounds. 32    [59] Instead, the Federal Court hinges its decision on the fact that there was indeed a positive affirmation and agreement over the content of the draft agreement which is exactly a non-existent fact in the present case: “There was a concluded agreement on 9 July 1996 when the appellants executed the copies of the faxed draft settlement agreement as it was essentially the same as the first draft agreement which had been agreed to earlier by both parties.” [60] The Federal Court in its decision does not deal and has not ruled against the other part of the Court of Appeal’s decision that stipulates that nothing short of a signed contract is sufficient to bring a contract into existence if parties have agreed that the terms shall be concluded in a formal contract. [61] Thus, the principle relied upon by the 1st Defendant remains a good law. Even more so when the same principle was followed yet again in another Court of Appeal decision close to a decade after Ho Kam’s case in the case of Tan Leng Choo & Ors v Law Teck 33    Huat [2009] 1 MLJ 820. This Court is practically bound to follow this precedent. [62] Now, the rules and doctrines of construction must be in harmony. This Court does not intend to contra any of these rules. However, what determines the applicability of one of these rules over the other, this Court opines depends largely on the facts of each case. It is trite that this Court shall treat alike cases alike and different cases differently. Now, generally indeed an acceptance might be inferred from a positive act, such as the performance of the terms of a contract. However, the other rule of construction steps in and takes the helm where there exist specific fact(s) and variable(s) which deem the other doctrine appropriate. And the present case is an exact example of this specific fact (which is the fact that the parties have agreed to conclude their differences in a formally executed contract). Thus, when this fact exists, then the primary rule is that nothing short of that formally signed and executed contract shall be sufficient bring the contract into existence. These rules of construction cannot be at odds with each other. Consequently, when this fact exists, then the doctrine of acceptance through performance can no longer apply and should be distinguished. It is here that the facts determine the appropriate 34    doctrine to apply. It is here that derivative from the facts, the present case distinguishes itself from the doctrine of acceptance by performance and fall within the doctrine of an agreement to agree to a formal contract requires a formal, signed and executed contract to put the contract in existence. [63] Thus it is this Court’s finding that it is irrelevant even if the Plaintiff is able to prove that the Broad Terms were performed as a performance of the Broad Terms is insufficient considering the fact that the Parties have agreed that their disputes shall be concluded in a formally signed and executed contract. It is insufficient in the present case to prove the existence of the contract of termination from the exchange of Drafts of Deed of Termination and the exchange of correspondences, considering the fact that the parties have agreed to conclude the dispute and terms in a formally signed and executed contract. [64] Again this Court is faced with the applicability of two valid doctrines of construction of contract. Both the Plaintiff and the 1st Defendant relied on the case of Charles Grenier Sdn. Bhd. v Lau Wing Hong [1997] 1 CLJ 625. 35    [66] The difference being that the Plaintiff extrapolated an isolated excerpt of the decision, to bend the actual decision into a distorted supposition that serves their interest. It is plainly a misleading quotation. The full quotation of the relevant portion of the decision reads: “An agreement to make an agreement does not result in a contract. It is for the court in each case to construe the correspondence exchanged between the parties and to say whether that is the result intended by the parties. If the court reaches an opposite conclusion, then there is an enforceable contract” [67] Indeed a contract may be construed from an exchange of correspondences. However, the preceding qualification is that an agreement to make an agreement does not result in a contract. And as was held earlier above, the existence of the specific fact that the parties agreed to conclude their dispute and terms vide a formal contract, deems that the doctrine that an agreement to agree to a formal contract requires the execution of a formal agreement takes precedence. 36    [68] Again, the exchange of Draft Deeds of Termination took place in February 2006 which was BEFORE Gerbang Perdana’s final claim to the Government. It is admitted even after the exchange of these Draft Deeds of Termination, that the Sub-Contract remains subsisting. [69] Therefore, in light of the above discussions at length, it is this Court’s decision that the RBS 03 Sub-Contract was never mutually terminated and remains subsisting. D. THE 1ST DEFENDANT’S ENTITLEMENT TO ITS PORTION OF THE EX GRATIA PAYMENT [70] It is settled that this Court finds that the 1st Defendant is entitled to its portion of the ex gratia payment. What is left for determination is the amount from the ex gratia payment that should be paid to the 1st Defendant as compensation. As has been stated earlier in this judgment, the determination of the amount the 1st Defendant is entitled to shall be dealt with at the quantum stage. [71] This Court is also well aware of the fact that Gerbang Perdana has contended of work not performed, delays and defaults of the 37    1st Defendant. However, at this juncture, it is more practical and appropriate for this Court to delve into the mass of admissions by Gerbang Perdana over works done by the 1st Defendant. Gerbang Perdana’s numerous admissions of the 1st Defendant’s work done and entitlement to compensation Gerbang Perdana’s letter to the Government dated 11.5.2006 [Tab 38, B20] [72] In this letter, as prelude, Gerbang Perdana has already admitted and represented to the Government that its claim for compensation shall be consolidated and be inclusive of third party claims who would be aggrieved by the termination of the Main Contract: “This claim also includes an estimate of claims from third parties whose contracts had to be duly terminated by us in compliance to the decision by the Government” Gerbang’s letter to the Government dated 26.5.2006 [Tab 46, B20] 38    [73] Gerbang Perdana has explicitly made reference to the Land Approach package in which is the RBS 03 Sub-Contract. The Sub- Contract package between the JV and Gerbang Perdana is exactly for Land Approach Works and the JV is indeed the Land Approach Works Contractor. Item 3 of the breakdown of claims by package sub-contractors reads: Item Description Amount (RM) 3 ........ Cost incurred by Land Approach Works Contractor 3,635,880.67 Gerbang Perdana’s final claim to the Government dated 8.9.2006 [74] This is indeed the pinnacle of Gerbang Perdana’s admission of the 1st Defendant’s works done and also the 1st Defendant’s ultimate entitlement to its portion of the ex gratia payment. [75] Preceding this final claim by Gerbang Perdana, the 1st Defendant has submitted its final claim with proof of claims vide its letter dated 7.8.2006. 39    [76] Entailing the above claim by the 1st Defendant, the Plaintiff spares nothing at all, not any portion, not any part of the 1st Defendant’s claim, and incorporated the 1st Defendant’s claim on 7.8.2006 in toto. [77] Not only that, adding more magnitude to the sheer obviousness of this admission, the Plaintiff has had the audacity to totally append all of the appendices furnished and prepared by the JV as proof of works done and entitlement to compensation. [see page 87, B9] [78] In fact, the Plaintiff’s witness (Nurul Huda binti Hashim - PW 1) has readily, without reservation admitted to this Court that the Plaintiff has completely incorporated the 1st Defendant’s claim: NTN Are the figures in respect of ACPI at pages 84 to 86 taken from Exhibit D219 at pages 125 to 126 of Bundle B9 which is Exhibit D219? NURUL Yes, for the ACPI column, compared to in page 84 and 85; it’s the same as that appears in 125 and 126. 40    NTN So essentially the Plaintiff adopted the First Defendant’s claim and incorporated it into the Plaintiff’s claim to the Government. Is that correct? NURUL Yes. [79] Gerbang Perdana merely changed the cover of the appendices in inserting the appendices into its claim to the Government. The heading by the 1st Defendant entitled “ACPI Submission of Final Account Claims” was simply altered to read “Road Bridge – Land Approach RBS 03 Compensation Appendix AA to AY ACPI – IC & E Joint Venture”. [80] This total incorporation of the 1st Defendant’s claim and proof of claims casts away all and any shade of doubt over the 1st Defendant’s entitlement and performance. This is a clear indication that there was work done and there is payment due to the 1st Defendant. The only reason that the Plaintiff was paid that ex gratia payment by the Government is because of the claims and evidences of the 1st Defendant’s work culminating the amount of 41    compensation due to all of the subcontractors (especially the 1st Defendant) [81] Thus, in light of the above vivid admissions, this Court finds that indeed there was work done by the 1st Defendant, and that the Defendant is entitled to be compensated for its work done. Gerbang Perdana’s contention on the delays and defaults [82] It is appropriate at this juncture, having the finding above in mind, that this Court addresses Gerbang Perdana’s contention on the 1st Defendant’s supposed delays and defaults. [83] Gerbang Perdana contends that due to certain delays and defaults, the scope of work under the package RBS 03 Sub- Contract has been narrowed down, and that the 1st Defendant has been sufficiently remunerated for all its work done vide interim payments. [84] If this is indeed true, then the Plaintiff’s contention is as good as admitting to making a falsified, inaccurate, and misleading claim to the Government. 42    [85] It is imperative again, to keep in mind that Gerbang Perdana’s claim to the Government completely incorporates the 1st Defendant’s claim to the fullest extent, sparing none of it. [86] If indeed the 1st Defendant has not performed what they have submitted to the Plaintiff, then the fact that the Plaintiff has falsely claimed against the Government is verily damaging to the Plaintiff’s credibility. [87] It is even more perplexing, astonishing even, that the Plaintiff’s witness has even admitted that they have over-claimed against the Government. The justification afforded was that: i. Gerbang Perdana was constrained with time; and ii. Gerbang Perdana claimed the full extent to cover other unforeseen expenses [88] This Court agrees with the Defendant that time is a non-issue here. The claim goes up to the hundreds of millions, and Gerbang Perdana has given its undertaking, at numerous times that it would 43    completely and thoroughly assess the claims to submit a proper, accurate, proven claim to the Government. [89] It is unconscionable if this Court would condone such a brazen act. This Court will never be an instrument of fraud. And over-claiming against the Government for supposed expenses which was not proven and represented, in the guise and/or cloak of another claim (in the present, the 1st Defendant’s claim) is verily fraudulent. It is too blatant, that Gerbang Perdana would simply retain/apply monies paid for the 1st Defendant’s work for other purposes than the original purpose the monies were paid. [90] In any circumstances, this Court is minded that fraud is not the Defendant’s case. Nevertheless, what inference that could be drawn relevant to the present case is that the Plaintiff’s contention lacks any logic, reason, legality, cohesion and veracity. It is simply the exact opposite of being probable. To say that it is improbable is an utter understatement. E. THE 1ST DEFENDANT HAS PROVEN ITS CASE FOR UNJUST ENRICHMENT AND CONSTRUCTIVE TRUST 44    The 1st Defendant’s case for Unjust Enrichment and Constructive Trust has been sufficiently pleaded [91] This Court does not hesitate to dismiss Gerbang Perdana’s contention that a case for Unjust Enrichment and Constructive Trust has not been pleaded. It is patently clear that all the facts, contention for both of these cause of action has been sufficiently pleaded. This Court shall not entertain mere question of semantics. It is already set in our own law under Order 18 rule 7 of the Rules of Court that the only content that need to be pleaded are material facts. It is not necessary that the words unjust enrichment and constructive trust is explicitly spelt out in the pleadings. It suffices that the facts pleaded would make up a legal case and/or consequence for the cause of action: Pleadings indicative of a case for UNJUST ENRICHMENT “22. …the Plaintiff is obliged to obtain from the Government any benefit under the Main Contract to the extent that it is application to the Defendant’s works… the Plaintiff has a duty to account to the 1st Defendant for any moneys 45    received by the Plaintiff from the Government as compensation… in respect of the 1st Defendant’s works. 23.1 It is common knowledge that the Plaintiff has made substantial claims and received substantial payments from the Government arising out of… the 1st Defendant’s works… However, the Plaintiff has not disclosed or accounted to the 1st Defendant how much payment and/or compensation was received in respect of the 1st Defendant’s claims. [92] There is no doubt here that the 1st Defendant’s case is that the Plaintiff has unlawfully retained the payment in respect of the 1st Defendant’s works. Pleadings indicative of a case for CONSTRUCTIVE TRUST “22. … the Plaintiff has a duty to account to the 1st Defendant for any moneys received by the Plaintiff from the Government as compensation… in respect of the 1st Defendant’s works. 46    23.1 It is common knowledge that the Plaintiff has made substantial claims and received substantial payments from the Government arising out of… the 1st Defendant’s works…” [93] There is no doubt here that the 1st Defendant’s case is that the Plaintiff has received the 1st Defendant’s entitlement and that it is their duty to account the same entitlement to the 1st Defendant. This is exactly a case of a Constructive trust. [94] This Court is bound and finds guidance from the Court of Appeal decision in the case of Tay Choo Foo @ Tay Chiew Foo v Tengku Mohd Saad @ Tengku Arifaad bin Tengku Mansur & Ors (all acting as administrators of the estate of Tunku Mansur bin Tunku Yaacob, deceased) and another appeal [2009] 1 MLJ 289. [95] The Court of Appeal in this case has decided in plain language that even if a party has pleaded, apart from material facts, legal consequences and law in specificity, it does not deprive the party to extrapolate and draw other different legal consequences from the facts pleaded. The Court of Appeal 47    decided as such in reliance of Lord Denning MR’s decision in Re Vandervell’s Trusts (No 2), White and Ors v Vandervell Trustees Ltd [1974] Ch 269: “It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permits. ... It follows, so it seems to me, that the question for decision in this case is whether the material facts have been set out in the pleadings, not whether Mr Mills made submissions before this court as to legal consequences which had not been set out” See also Koh Siak Poo v Syang Plantation Bhd [2002] 1 MLJ 65 Gerbang Perdana’s refusal to pay and retention of payment of the 1st Defendant’s entitlement amounts to an Unjust Enrichment. 48    [96] The learned counsels for the 1st Defendant has referred to the Federal Court decision of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. The Federal Court has encapsulated four (4) elements in proving a case of Unjust Enrichment from a myriad of judgments of the UK House of Lords: i. The Plaintiff must have been enriched [97] Upon all of the above admissions by the Gerbang Perdana itself and findings of this Court, it is overwhelmingly obvious that the Plaintiff has been enriched, when it received and retained the payment which was granted by the Government which was paid in consideration of the 1st Defendant’s work done (which has been admitted to have been performed by the Plaintiff). ii. The Enrichment must be gained at the defendant’s expense [98] Clearly, the 1st Defendant is entitled to the portion in the ex-gratia payment, and when the 1st Defendant is deprived of its entitlement, it naturally entails that the 1st Defendant is aggravated, and the Plaintiff is enriched at the expense of the 1st Defendant’s aggravation. 49    iii. The retention of benefit was unjust [99] There is just an absolute absence of any legal, logical, justification for Gerbang Perdana’s retention of the 1st Defendant’s entitlement. Indeed the retention of the entitlement is unjust. iv. There must be no defence available to extinguish or reduce the plaintiff’s liability to make restitution [100] It is fitting that this Court reiterates that to deem the Plaintiff’s case improbable is an understatement. It is completely untenable and there is no defence at all that the Plaintiff may latch onto to exonerate itself from its liability. [101] Therefore, it is this Court’s judgement that the retention of the 1st Defendant’s entitlement amounts to an Unjust Enrichment. Gerbang Perdana indeed holds the 1st Defendant’s entitlement to the ex-gratia payment as a Constructive Trustee to the benefit of the 1st Defendant 50    [102] Now, usually the case for Constructive Trust is applied in cases dealing with Property. However, the principle is not by any means limited only to cases dealing with Property. The principle of Constructive Trust is derivative of the common law doctrine that “equity looks upon as done that which ought to have been done”. The Court shall construct a trust if a set of facts necessitates the operation of a trust in view of justice and good conscience. Thus, if the Court finds that a party have not done what it ought to do, then the Court shall construct a trust to remedy that injustice and ill conscience. This is the underlying reason that a holder (vendor) of a property (which by virtue of a Sale Contract/Deed must transfer the rights to the property to the Purchasor) shall be deemed as a trustee because the holder can no longer in good conscience retains the rights to the property. See Hassan Bin Kadir & Ors v Mohamed Moidu bin Mohamad & Anor [2011] 5 CLJ 136 ; Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381. [103] Thus, in application to the present case, indeed Gerbang Perdana has no rights in good conscience to retain the monies from the ex- gratia payment which the 1st Defendant is entitled to. Gerbang 51    Perdana ought to pay the portion of the 1st Defendant’s entitlement in the ex-gratia payment. Thus, in holding the entitlement, Gerbang Perdana holds the entitlement to the benefit of the 1st Defendant. F. MISCELLANEOUS [104] The Plaintiff sought to draw an adverse inference under Section 114(g) of the Evidence Act 1950 for the 1st Defendant’s supposed failure to call its Managing Director (Khalid bin Abdul Karim) who was an attendee of the Tripartite Meeting to prove their case that the Sub-Contract has not been terminated. [105] However, the onus to prove lies on the party claiming the existence of a fact. And it is the Plaintiff’s case to prove that there was a supposed mutual termination of the Sub-Contract. [106] The burden of proof to disprove the termination does not at any time shift to the 1st Defendant until and unless the Plaintiff has successfully proven that there was indeed a mutual termination of the subcontract since the conclusion of the tripartite meeting. 52    [107] Here, it is patently clear that the Plaintiff has not fulfilled its burden of proof. Thus, there is no burden against the 1st Defendant to adduce evidences or witnesses to contra a fact which has not yet been proven. [108] Therefore, there is no necessity at all for this Court to draw such adverse inference as contended by the Plaintiff, Gerbang Perdana. G. COURT’S DECISION AND DIRECTIONS [109] In light of all of the above findings, it is this Court’s decision that the Plaintiff has ultimately failed to prove its case on the balance of probabilities and therefore is not entitled to reliefs sought in its Statement of Claim. This Court hereby dismisses the Plaintiff’s action with costs. [110] In consequence to the above, this Court orders that the issue on the 1st Defendant’s entitlement shall be assessed in due course by the Court bearing in mind of this Court’s findings that the Sub- Contract was not mutually terminated and that the 1st Defendant remains entitled for compensation for works done under the Sub- Contract in furtherance of the Main Contract. 53    On the issue of costs [111] Having heard brief submissions from both counsels for the Plaintiff and the 1st Defendant on costs, considering both the Plaintiff’s claim and the 1st Defendant’s Counterclaim, this Court hereby orders the Plaintiff to pay the 1st Defendant a sum of RM 100,000.00 in costs. This Court also orders that there will be no order as to costs in respect of the 2nd Defendant. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 24th of November, 2015 For the Plaintiffs - Tetuan Stanley Chang & Partners Mr. Stanley Chang Ms. Cheryl Tay Shieh Chin 54    For the 1st Defendant - Tetuan Lee Hishammuddin, Allen & Gledhill Mr. Nitin Nadkarni Ms. Aaina Liyana Abd Manaf Mr. Yuvaraj Sugapathy For the 2nd Defendant - Tetuan Goh Partnership Mr. Chetan Jethwani Ms. Goh Hui Ring Mr. Ernestine Khoo Bee Wah

Tika 2.6.0

25-48-11/2014

PEMOHON THACANAMOORTHY A/L PALANIANDY RESPONDEN 1. PENGERUSI LEMBAGA PENCEGAHAN JENAYAH 2. KETUA POLIS SELANGOR 3. KETUA POLIS NEGARA, MALAYSIA 4. KERAJAAN MALAYSIA

20/11/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e7580921-645b-47ad-aeb0-36b63dcdbc7c&Inline=true

Microsoft Word - 25-48-11-2014 Thacanamoorthy AL Palaniandy 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO: 25-48-11/2014 Dalam perkara suatu permohonan oleh THACHANAMOORTHY A/L PALANIANDY [NO.KP 880528-01-5613] untuk mendapatkan kebenaran untuk suatu Deklarasi dan/atau Certiorari DAN Dalam Perkara Keputusan Pengerusi, Lembaga Pencegahan Jenayah bertarikh 15.08.2014 yang dibuat selaras dengan Seksyen 15 APJ Pencegahan Jenayah 1959 DAN Dalam Perkara Artikal 5, 7 & 151 Perlembagaan Persekutuan DAN Dalam Perkara mengenai APJ Kehakiman 1964 dan Aturan 53 Kaedah-Kaedah Mahkamah 2012 2    ANTARA THACANAMOORTHY A/L PALANIANDY ... PEMOHON DAN 1. PENGERUSI LEMBAGA PENCEGAHAN JENAYAH 2. KETUA POLIS SELANGOR 3. KETUA POLIS NEGARA, MALAYSIA 4. KERAJAAN MALAYSIA ... RESPONDEN- RESPONDEN ALASAN PENGHAKIMAN (Semakan Kehakiman) [1] Pemohon di dalam kes ini telahpun diberikan kebenaran pada 5.1.2015 untuk memulakan prosiding semakan kehakiman terhadap keempat-empat Responden. [2] Melalui prosiding semakan kehakiman ini, Pemohon memohon kepada Mahkamah antara lain relif-relif/ perintah- perintah berikut: 3    a. Satu deklarasi bahawa sekatan Pemohon di Mukim Bagan Nakhoda Omar, Daerah Sabak Bernam, Selangor di bawah satu Perintah Pengawasan Polis bertarikh 15.8.2014 selaras dengan seksyen 15 APJ Pencegahan Jenayah 1959 adalah tidak sah dan terbatal; b. bahawa Pemohon bebas daripada syarat-syarat sekatan di bawah Perintah Pengawasan Polis bertarikh 15.8.2014; dan c. kos permohonan ini. LATAR BELAKANG KES [3] Latar belakang yang mendorong Pemohon memulakan prosiding semakan kehakiman ini adalah seperti berikut: 3.1 Pada 25.06.2014 Pemohon telah ditangkap di bawah seksyen 3(1) Akta Pencegahan Jenayah 1959 (APJ). Pada keesokan harinya iaitu 26.06.2014, melalui suatu perintah reman di 4    bawah seksyen 4(1)(a) APJ, Pemohon telah ditahan untuk tempoh 21 hari sehingga 16.07.2014. 3.2 Selaras dengan peruntukan Seksyen 9 APJ, pada 17.07.2014 jam 3.15 petang, satu inkuiri telah dijalankan ke atas Pemohon oleh Pegawai Inkuiri (Lee Wai Yee). Setelah mendengar dan menimbangkan keterangan-keterangan yang dikemukakan oleh Pemohon, Pegawai Inkuiri telah mendapati dan berpuas hati bahawa ada alasan-alasan yang munasabah bagi mempercayai bahawa Pemohon sebagai orang yang menjadi hal-perkara siasatan adalah orang yang menganggotai pertubuhan yang menyalahi undang-undang yang menggunakan upacara Triad dan oleh itu Pemohon adalah termasuk dalam Kategori Yang Boleh Didaftarkan, Perenggan 1(i) Bahagian I Jadual Pertama, Akta Pencegahan Jenayah 1959 (Akta 297). 3.3 Pada 22-07-2014, Pegawai Inkuiri telah mengemukakan sesalinan dapatannya menurut seksyen 10(2) APJ dan sesalinan Borang I di bawah seksyen 11(1) Akta tersebut 5    kepada Inspektor Polis Mohd Zairi Bin Baderul @ Badrol untuk diserahkan kepada Pemohon. 3.4 Kemudian daripada itu, pada 24.07.2014, Pegawai Inkuiri telah mengemukakan laporan lengkapnya secara bertulis berserta dapatannya menurut seksyen 10(2) APJ tersebut kepada Lembaga Pencegahan Jenayah (Lembaga). 3.5 Pada 06.08.2014, nama Pemohon telah didaftarkan dalam Daftar Jenayah oleh Pendaftar Penjenayah (Superintenden Polis Mohammad Azlin bin Sadari). Apabila Lembaga Pencegahan Jenayah (Lembaga) bersidang pada 15.08.2014, Lembaga Pencegahan Jenayah telah membuat kesimpulan bahawa Pemohon adalah termasuk dalam Kategori Yang Boleh Didaftarkan di Perenggan 5, Bahagian 1, Jadual Pertama, APJ tersebut. 3.6 Pada hari yang sama Lembaga telah mengeluarkan Perintah Pengawasan Polis selaras dengan seksyen 15 APJ tersebut yang memerintahkan Pemohon ditempatkan di bawah 6    pengawasan polis bagi tempoh 3 tahun dan dikehendaki tinggal dalam kawasan Mukim Bagan Nakhoda Omar, Daerah Sabak Bernam, Negeri Selangor. [4] Di dalam afidavit-afidavit menyokong permohonannya untuk semakan kehakiman, Pemohon telah mendakwa bahawa perintah tersebut adalah cacat dan defektif atas alasan terdapat ketakpatuhan peruntukan-peruntukan APJ iaitu: i. seksyen 3(1) dan (2) ii. seksyen 4(1) (a) dan (b); iii. seksyen 4(2)(a)(i) dan (ii) iv. seksyen 7B; v. seksyen 9 (1), 9(2) dan 9(3 vi. seksyen 10(2); vii. seksyen 12(1); dan viii. seksyen 15 [5] Pemohon juga telah mendakwa perintah tersebut telah dikeluarkan oleh Lembaga secara mekanikal tanpa diberi pertimbangan sewajarnya. 7    Ketakpatuhan di bawah seksyen 15(1) APJ [6] Pemohon telah membangkitkan ketakpatuhan peruntukan seksyen 15(1) APJ di pihak Lembaga dengan meletakkan tanggungjawab ke atas Lembaga Pencegahan Jenayah bahawa sebelum mengeluarkan perintah tersebut Lembaga hendaklah berpuashati akan perkara- perkara berikut: i. Pemohon telah didaftarkan oleh Pendaftar Penjenayah ii. Pemohon perlu diletakkan di bawah kawalan dan pengawasan dilaksanakan ke atas orang yang berdaftar tersebut. iii. Pemohon diletakkan dibawah pengawasan polis tidak melebihi lima (5) tahun. [7] Adalah dihujahkan oleh peguam Pemohon bahawa perkataan penting iaitu Lembaga perlu puas hati mengapa Pemohon perlu diletakkan di bawah kawalan dan pengawasan telah tidak 8    dinyatakan di dalam perintah tersebut. Menurut peguam Pemohon dengan ketiadaaan penyataan atau perkataan-perkataan tersebut, Lembaga telah tidak menyatakan sebab-sebab spesifik keperluan Pemohon perlu dikawal dan diawasi. Justeru, menurut peguam Pemohon lagi peruntukan seksyen 15(1) APJ tersebut telah gagal dipatuhi oleh Lembaga. [8] Bagi menyokong hujahannya, peguam Pemohon telah bersandarkan kes Kumaresan Subramaniam v Dato' Chor Chee Hueng & Anor [2003] 4 CLJ 116. [9] Untuk menimbangkan samada terdapatnya ketakpatuhan di pihak Lembaga akan peruntukan seksyen 15, maka peruntukan seksyen 15 hendaklah diteliti. Seksyen 15 (1) memperuntukkan berikut: “15. (1) The Board may by order direct that any registered person named in the order shall be subject to the supervision of the police for any period not exceeding five years, if the Board is satisfied that it is necessary that control and supervision be exercised over the registered person but that is not necessary to detain him and may renew any such order for a further period not exceeding five years at a time; and the registered person shall 9    be conveved under police escort to the State district, mukim, town or village in which he is required to reside under subsection (2), if any.” [10] Perkataan-perkataan yang digunakan oleh seksyen 15 (1) APJ, adalah “The Board may by order direct that any registered person named in the order shall be subject to the supervision of the police for any period not exceeding five years, if the Board is satisfied that it is necessary that control and supervision be exercised….”. [11] Apa yang dibangkitkan oleh peguam adalah perkataan “the Board is satisfied that it is necessary that control and supervision” tidak dinyatakan di dalam Perintah tersebut. [12] Bagi isu ini, Mahkamah bersetuju dengan hujahan peguam Responden bahawa kes yang ada di hadapan Mahkamah ini perlu dibezakan dengan kes Kumaresan kerana di bawah seksyen 6(1) APJ Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985, di dalam mengeluarkan suatu Perintah Tahanan terhadap Kumaresan, Menteri perlulah berpuas hati atas dua perkara iaitu: 10    i. orang itu pernah ada atau sedang ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang melibatkan pengedaran dadah berbahaya; dan ii. untuk orang itu perlu ditahan bagi ketenteraman awam. [13] Di dalam kes Kumaresan ini, Mahkamah telah memutuskan perintah tahanan yang dikeluarkan oleh Menteri adalah defektif apabila Menteri gagal menyatakan di dalam perintahnya bahawa ia berpuashati bahawa Kumaresan perlu ditahan demi ketenteraman awam. [14] Peruntukan seksyen 6(1) APJ Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 ini adalah berbeza dengan peruntukan seksyen 15 APJ. Di bawah seksyen 15 APJ ini, memperuntukkan bahawa Lembaga boleh memerintahkan mana-mana orang yang telah didaftarkan namanya di dalam Daftar Jenayah untuk diletakkan di bawah pengawasan polis selama tempoh tidak melebihi lima (5) tahun. Di dalam afidavit yang diikrarkan oleh Dato' Ahmad Kamal Bin Md Shahid yang merupakan pengerusi Lembaga, telah dinyatakan beliau bahawa adalah di dalam pengetahuan Lembaga melalui 11    dokumentar bahawa pada tarikh 6.8.2014 nama Pemohon telahpun didaftarkan di dalam Rekod (Daftar) Pendaftaran Jenayah di mana terhadap Pemohon telah dikeluarkan satu Perintah Pengawasan untuk tempoh selama 3 tahun. Menurut Dato' Ahmad Kamal lagi berdasarkan fakta Perintah Pengawasan adalah untuk tempoh selama 3 tahun tersebut dan serta mengambil kira keperluan pencegahan jenayah yang lebih efektif dan pengawalan penjenayah- penjenayah dan orang-orang yang tidak diingini. Lembaga Pencegahan Jenayah telah berpuashati bahawa Pemohon perlu diletakkan di bawah kawalan dan pengawasan atas alasan keperluan pencegahan jenayah yang lebih efektif dan pengawalan penjenayah- penjenayah dan orang-orang yang tidak diingini. [15] Berdasarkan pengataan tersebut, adalah menjadi dapatan Mahkamah ini bahawa Lembaga telah membuat keputusan selaras dengan keperluan seksyen 15 APJ dan ianya bukanlah suatu keputusan yang telah dibuat secara mekanikal. [16] Walau apapun, adalah menjadi dapatan Mahkamah ini juga bahawa ketiadaaan perkataan atau kehilangan ayat-ayat seperti yang 12    dibangkitkan oleh peguam Pemohon bukanlah sesuatu yang mencacatkan prosedur dan mencacatkan Perintah yang dikeluarkan Lembaga. (Sila lihat: Kumaravel A/L Periasamy V Timbalan Menteri Keselamatan Dalam Negeri & 3 Lagi [Mahkamah Persekutuan Rayuan Jenayah No. 05-120-2008 (A)]) Ketidakpatuhan seksyen 12(2) dan seksyen 12(1)(b) APJ [17] Peguam Pemohon telah menghujahkan bahawa di dalam mendaftarkan nama Pemohon di dalam Daftar Jenayah menurut seksyen 12(1)(a) APJ, Pegawai Inkuiri dan Pendaftar Jenayah telah tidak bertindak menurut peruntukan undang-undang dengan alasan bahawa berdasarkan afidavit Pendaftar Jenayah (Superintenden Mohd Azlin bin Sadari), beliau telah mendaftarkan nama Pemohon di dalam Daftar Jenayah kerana telah Pegawai Inkuiri telah melaporkan kepadanya nama Pemohon perlu didaftarkan selaras dengan seksyen 12(1)(a) APJ. Di dalam perkara ini, menurut peguam Pemohon, tindakan Pendaftar Penjenayah di dalam mendaftarkan nama Pemohon di dalam Daftar adalah berasaskan pengataan Pegawai Inkuiri dan bukannya berasaskan pengesahan oleh 13    Lembaga seperti yang diperuntukkan di bawah seksyen 12(1)(a) dan 12(1)(b) APJ. [18] Seterusnya adalah dihujahkan oleh peguam Pemohon bahawa Pegawai Inkuiri tidak mempunyai kuasa untuk memaklumkan Pendaftar Penjenayah supaya nama Pemohon didaftarkan dalam Daftar Jenayah. [19] Seksyen 12(1)(a) dan (b) APJ memperuntukkan berikut: “12. (1) The Registrar shall keep a Registrar for the purpose of this Act, in which shall be entered the name of every person – (a) who is reported by an Inquiry Officer to be a person in respect of whom there are reasonable grounds for believing that he is a member of any of the registrable categories; and (b) who has not requested any review under section 11, or in respect of whom the Board has confirmed the finding made under subsection 10(2) or made or confirmed the decision under paragraph 10(3)(b), together with such other particulars as may be prescribed….” 14    [20] Seksyen 12(1)(a) jelas memperuntukkan bahawa Pendaftar hendaklah menyimpan suatu Daftar bagi maksud APJ yang mana hendaklah dimasukkan nama setiap orang yang dilaporkan oleh seorang Pegawai Inkuiri (Siasatan) yang mana ada alasan-alasan yang munasabah bagi mempercayai bahawa seorang itu adalah seorang anggota mana-mana kategori boleh didaftarkan. [21] Di dalam hal ini, nampaknya peguam Pemohon telah khilaf di dalam pembacaan peruntukan seksyen 12(1)(a) ini. Fakta yang jelas dan tidak langsung dipertikaikan di dalam kes ini adalah bahawa Pemohon sememangnya TIDAK MEMINTA ATAU MEMOHON KAJIAN SEMULA seperti yang diperuntukkan di bawah seksyen 11 APJ. [22] Perlu Mahkamah ini nyatakan di sini bahawa pendaftaran nama mana-mana orang di dalam Daftar Jenayah menurut seksyen 12(1) APJ tersebut hanya akan dilakukan oleh Pendaftar Penjenayah dalam dua keadaan seperti berikut: 15    (i) nama orang yang telah dilaporkan oleh Pegawai Inkuiri (pegawai siasatan) terdapatnya alasan-alasan yang munasabah bagi mempercayai bahawa Pemohon adalah seorang anggota mana-mana kategori boleh didaftarkan {seksyen 12(1)(a)} (ii) nama mana-mana orang yang tidak memohon kajian semula di bawah seksyen 11, atau nama mana-mana orang yang mana Lembaga telah mengesahkan dapatan yang dibuat menurut subseksyen 10(2) atau dibuat atau pengesahan keputusan yang dibuat di bawah perenggan 10(3)(b). {seksyen 12(1)(b)} [23] Apa yang jelas di sini adalah sekiranya tiada permohonan kajian semula dibuat oleh Pemohon di bawah seksyen 11, maka tidak timbul isu bahawa Pendaftar Penjenayah telah mendaftar nama Pemohon atas makluman yang dibuat oleh Pegawai Inkuiri. [24] Justeru di dalam kes ini tidak timbul suatu tindakan yang tidak selaras dengan undang-undang dan 'ultra vires' seperti yang dibangkitkan oleh Pemohon kerana pendaftaran nama Pemohon 16    telah disempurnakan selaras dengan undang-undang iaitu pendaftaran nama Pemohon oleh Pendaftar Penjenayah menurut seksyen 12(1)(a) yang menyatakan tanggungjawab Pendaftar Penjenayah menyimpan suatu daftar yang dilaporkan oleh seorang Pegawai Siasatan yang mana ada alasan-alasan yang munasabah bagi mempercayai bahawa dia adalah seorang anggota mana-mana kategori anggota mana-mana kategori boleh didaftarkan. [25] Pengataan peguam Pemohon bahawa Lembagalah yang sepatutnya memasukkan nama Pemohon itu ke dalam Daftar adalah tidak silap. Di bawah APJ, bukanlah menjadi suatu tugas Lembaga untuk memaklumkan Pendaftar berkenaan perkara tersebut. [26] Di dalam hal pendaftaran nama di dalam Daftar Jenayah di bawah APJ ini, peruntukan adalah jelas bahawa sebelum Lembaga boleh mengeluarkan apa-apa perintah di bawah seksyen 15 APJ terhadap mana-mana orang, nama orang itu hendaklah terlebih dahulu didaftarkan ke dalam Daftar Jenayah. 17    [27] Di bawah APJ, kuasa untuk mendaftarkan nama mana-mana orang ke dalam Daftar Jenayah adalah terletak kepada Pendaftar. Menurut seksyen 2 APJ, Pendaftar telah ditakrifkan sebagai Pendaftar Penjenayah yang dilantik di bawah seksyen 3 Pendaftaran Penjenayah dan Orang-Orang yang Tidak Diingini 1969. Justeru, adalah menjadi tugas Pendaftar bagi memaklumkan bahawa nama Pemohon telah didaftarkan di dalam Daftar Jenayah tersebut. Pendaftar adalah dikehendaki menyimpan suatu daftar bagi nama mana-mana orang yang hendak didaftarkan apabila Pegawai Siasatan telah melaporkan bahawa terdapatnya alasan-alasan yang munasabah bagi mempercayai bahawa dia adalah seorang anggota mana-mana kategori boleh didaftarkan dan tiada kajian semula dibuat. [28] Kes Hanizam Hassan v. Pengerusi Lembaga Pencegahan Jenayah & Ors [2015] 5 CLJ yang disandarkan oleh peguam Pemohon berbeza dengan kes yang ada di hadapan Mahkamah ini kerana di dalam kes Hanizam, Hanizam telah memohon untuk kajian semula di bawah seksyen 11 APJ tersebut. Pemohon di hadapan Mahkamah ini tidak berbuat sedemikian. 18    [29] Peguam cuba menghujahkan bahawa di dalam kes Hanizam, Mahkamah Rayuan yang telah mendengar rayuan Rayuan No: R- 01(A)-123/04/15 pada 3 Ogos 2015 telah bersetuju dengan hujahan peguam bela Hanizam bahawa "Responden telah bersetuju subseksyen 10(3)(b) merujuk kepada subseksyen 10(1) dan bukan Subseksyen 10(2)". [30] Apa yang nyata di dalam kes di hadapan Mahkamah ini subseksyen 10(3)(b) yang ditimbulkan di dalam kes Hanizam adalah tidak relevan kerana di dalam kes ini peruntukan yang dirujuk adalah peruntukan subseksyen 10(2) APJ. Maka keperluan pembacaannya dan bersama dengan subseksyen 10(1) APJ tidak timbul. [31] Oleh itu, isu ketidakpatuhan prosedur di pihak Responden yang dibangkitkan peguam Pemohon ini tidak mempunyai asas atau merit. Pendaftaran Penama oleh Pendaftar Penjenayah Tidak Teratur 19    [32] Peguam Pemohon telah membangkitkan isu bahawa Lembaga perlulah berpuas hati dengan pendaftaran nama Pemohon di dalam Daftar Jenayah. Bagi Mahkamah ini, isu yang dibangkitkan adalah suatu isu yang tidak bermerit. Bagi Mahkamah ini, penelitian kepada kenyataan di dalam Perintah Pengawasan yang dikeluarkan oleh Lembaga adalah mencukupi untuk menjelaskan kepuasan hati Lembaga sepertimana yang diperuntukkan di bawah seksyen 15 APJ. [33] Berhubung dengan kepuasaan hati Lembaga Pencegahan Jenayah ini, peguam telah merujuk Mahkamah ini kepada kes Menteri Hal Ehwal Dalam Negeri & Anor v. Lee Gee Lam [1993] 4 CLJ 336 di mana di dalam kes Lee Gee Lam ini Mahkamah Rayuan telah mengesahkan keputusan Pesuruhjaya Kehakiman yang membenarkan permohonan Habeas Corpus. Atas alasan bahawa daripada perintah tahanan yang dikeluarkan, ianya kabur dan samar- samar samada Timbalan Menteri telah sebenar-benarnya mengambil ingatan akan keadaan-keadaan yang tertentu dalam setiap kes responden atau samada beliau telah mengamalkan kuasa penahanan beliau secara mekanikal. 20    [34] Mahkamah ini bersepandangan dengan peguam Responden bahawa kes yang dirujuk oleh peguam Pemohon itu perlu dibezakan dengan kes di hadapan Mahkamah. Ini adalah kerana di dalam kes Lee Gee Lam, isu yang ditimbulkan adalah berkenaan kepuasan hati Menteri untuk menimbangkan bahagian-bahagian di bawah mana beliau bertindak bagi menentukan kerelevanan bahagian tersebut. Di bawah seksyen 4 Ordinan (Ketenteraman Awam dan Pencegahan Jenayah Darurat) 1969 {Ordinan} sebelum Menteri boleh mengeluarkan apa- apa Perintah Tahanan, Menteri hendaklah mempertimbangkan dan mengambil kira bahagian-bahagian tersebut. [35] Ini adalah berbeza dengan Perintah Pengawasan yang dikeluarkan oleh Lembaga di bawah seksyen 15 APJ. Di bawah APJ tiada sebarang keperluan undang-undang untuk Lembaga mempertimbangkan mana-mana bahagian sebelum mengeluarkan suatu Perintah Pengawasan. [36] Justeru, adalah menjadi dapatan Mahkamah ini bahawa keperluan pertimbangan Menteri sebelum mengeluarkan Perintah Tahanan di 21    bawah seksyen 4 Ordinan tidak hadir di dalam pengeluaran Perintah Pengawasan oleh Lembaga di bawah APJ. Kelambatan Serahan Dapatan Inkuiri [37] Peguam Pemohon telah membangkitkan bahawa terdapat kelewatan penyerahan Dapatan inkuiri kepada Pemohon. Peguam telah menghujahkan bahawa Dapatan inkuiri tersebut telah tidak diserahkan dengan serta-merta kepada Pemohon seperti yang dikehendaki di bawah APJ. Untuk hujahan ini, peguam Pemohon telah juga merujuk kepada kes Hanizam. Menurut peguam Pemohon di dalam kes Hanizam terdapat kelewatan di pihak Responden menyerahkan salinan Dapatan Pegawai Inkuiri kepada Hanizam selama 2 hari di mana di dalam kes Hanizam ini bagi kelewatan penyerahan 2 hari, Hakim Mahkamah Tinggi telah memutuskan berikut: 22    “[6] “...Berlaku kelewatan dua hari untuk menyerahkan salinan dapatan pegawai inkuiri kepada pemohon. Parlimen telah menetapkan dibawah s.10(2) Akta bahawa dapatan perlu diserahkan ‘serta-merta’. Oleh itu, Responden-Responden telah gagal mematuhi peruntukan s. 10(2) Akta. Malahan, alasan yang diberikan oleh Sukri yang kononnya terikat dengan tugasan rasmi lain tidak boleh diterima...” [38] Di dalam penyerahan Dapatan inkuiri kepada Pemohon, berdasarkan subseksyen 10(2), terdapat dua individu atau pihak yang terlibat iaitu- (a) Pegawai lnkuiri (bertanggungjawab untuk) - (i) membuat laporan berhubung dengan alasan-alasan bahawa seseorang itu adalah ahli kepada mana-mana kategori berdaftar berserta dapatannya kepada Lembaga; dan (ii) menyerahkan salinan Dapatan tersebut kepada Pegawai yang mempunyai jagaan ke atas subjek; dan (b) Pegawai yang mempunyai jagaan ke atas subjek bertanggungjawab untuk menyerahkan salinan dapatan Pegawai Inkuiri kepada subjek (Pemohon dalam kes ini). 23    [39] Di dalam kes ini, Pegawai yang mempunyai jagaan ke atas Pemohon ( ASP Mohd Zairi bin Baderul @ Badrol ) telah menyerahkan salinan Dapatan kepada Pemohon pada 23-07-2014 pada jam 2.30 petang walaupun salinan Dapatan tersebut telah diterimanya pada 22-07- 2014. Menurut ASP Mohd Zairi, beliau telah menerima salinan Dapatan tersebut pada lewat petang 22-07-2014 di Putrajaya dan perjalanan dari Putrajaya ke Kulaijaya pastinya mengambil masa dan beliau telah sampai di Ibu Pejabat Polis Daerah (IPD) Kulaijaya, Johor pada lewat malam. Di samping itu, apabila tiba lewat malam pula, peraturan lokap tidak membenarkan Pemohon dikeluarkan daripada lokap pada lewat petang selepas pukul 6 petang. [40] Mengenai masa dan kelewatan dengan alasan munasabah atau tidak, Mahkamah Rayuan di dalam kes Keng Kien Hock V. Timbalan Menteri Keselamatan Dalam Negeri Malaysia & Ors. [2007] 5 CLJ 171, telah memutuskan antara lain: "Subsequently the Supreme Court further expound the position established that "whoever caused the delay must explain the delay" in the case of TIMBALAN MENTERI HAL EHWAL DALAM NEGERI MALAYSIA V. LIAU NYUN FUI & ORS. [1991] 1 CLJ 458; ([1991] 7 CLJ 24    (REP) 458 [TAG C] wherein his lordship Hamid Omar, the Lord President at p.462 (p.463) stated the following: "ln the light of the judgment in Phua Hing Lai's case the position in law seems to be that when no time frame is prescribed then anything that shall be done under s. 2(ii) shall be done with all convenient speed. Accordingly in respect of situation (1), the further enquiry and the issue of the restriction order shall be effected with aII convenient speed. What constitutes convenient speed would depend on the circumstances of each case. In respect of situation (2), where the Timbalan Menteri does not deem it necessary for any further enquiry he ought to proceed thereafter, that is, after the detention, to make the restriction order with all convenient speed. The correct test to be applied therefore is not on the basis of unreasonable delay but convenient speed. The learned Judicial Commissioner determined the question before him on the basis of unreasonable delay. This was not a proper approach. The question that was before him was whether the Timbalan Menteri in the particular circumstance of that case had acted with all convenient speed in making the restriction order. Strictly it was for the respondent to show that the Timbalan Menteri had not so acted and not for the 25    Timbalan Menteri to provide an explanation acceptable to the Court. [7] It is clear based on the principles enunciated in the above mentioned two cases, THE APPLICABLE APPROACH TO BE ADOPTED IS FIRSTLY, THE APPROPRIATE TEST IS NOT ON THE DELAY IN CARRYING OUT THE LEGAL OBLIGATION BUT RATHER ON WHETHER THE LEGAL OBLIGATION WAS CARRIED OUT WITH ALL CONVENIENT SPEED UNDER THE CIRCUMSTANCES OF THE CASE. In other words, it is whether the Minister or Deputy Minister has acted reasonably. And, secondly, the burden of establishing the performance of the legal obligation under such circumstances remained on the applicant, the restricted person and never shifted to the respondent, the Minister. [8] We are of the view that in order to arrive at a correct finding of fact as to whether the legal obligation was carried out with all convenient speed under the circumstances of such particular case, it shall be the duty of the trial judge to look into all the affidavit evidence adduced by the parties in the proceeding. On this point, in the present case we find the learned Judicial Commissioner had specifically made reference to the length of days taken by the Deputy Minister in order to perform the legal task under s. 2 of the Act in the various originating summons filed by the respective 26    appellants which were simultaneously heard together by him in which he stated as follows:...". [41] Di dalam kes Keng Kien Hock ini, Mahkamah Rayuan telah menyatakan pendekatan atau ujian yang sepatutnya dan sesuai digunapakai berhubung tempoh masa perlaksanaan obligasi yang diperuntukkan di bawah undang-undang adalah ketentuan tempoh masa tersebut bukan sahaja atas kelewatan melaksanakan obligasi undang-undang tersebut tetapi juga samada obligasi undang- undang tersebut telah dilaksanakan dengan kesegeraan atau kelajuan selesa dengan mengambilkira keadaan-keadaan yang merangkumi kes tersebut (convenient speed under the circumstances of the case). [42] Dalam erti kata lain, pada dasarnya obligasi di bawah undang- undang hendaklah dilaksanakan dengan serta merta dengan sedaya upaya, namun sekiranya tidak dilaksanakan serta-merta, kelewatan mestilah diukur dengan menentukan samada obligasi undang- undang tersebut telah dilaksanakan dengan kesegeraan atau kelajuan selesa dengan mengambilkira keadaan-keadaan yang merangkumi kes tersebut. Untuk itu, Mahkamah perlulah 27    menimbangkan dan menentukan kesemua keterangan fakta dan dokumentar yang telah dikemukakan di hadapannya bagi menentukan samada obligasi undang-undang tersebut telah dilaksanakan dengan kesegeraan atau kelajuan selesa. [43] Perlu dinyatakan bahawa di dalam kes Hanizam yang dirujuk oleh peguam Pemohon, Hakim Mahkamah Tinggi telah tidak menerima alasan kelewatan penyerahan Dapatan selama 2 hari dengan alasan terikat dengan tugas rasmi. Di dalam kes ini ianya berbeza, salinan Dapatan tidak dapat diserahkan serta-merta kepada Pemohon pada 22.7.2014 atas alasan-alasan yang diberikan oleh ASP Mohd Zairi. Bagi Mahkamah ini, penyerahan salinan Dapatan pada keesokan hari setelah sampai lewat malam memanglah tidak serta-merta tetapi dengan menggunapakai ujian Mahkamah Rayuan di dalam kes Keng Kien Hock, penyerahan salinan Dapatan keesokan harinya dengan alasan-alasan yang diberikan oleh ASP Mohd Zairi adalah merupakan alasan-alasan yang munasabah dan konkrit serta boleh diterima. 28    [44] Namun apapun, adalah menjadi dapatan Mahkamah ini juga penyerahan salinan Dapatan kepada Pemohon keesokan hari iaitu pada 23.7.2014 tidak langsung menafikan hak Pemohon ataupun memprejudiskan Pemohon ataupun menjadikan Dapatan Pegawai Inkuiri itu defektif dan tidak konklusif ataupun menjadikan Perintah Pengawasan yang dikeluarkan oleh Responden terbatal. [45] Di dalam kes ini, ianya adalah jelas bahawa tidak ada sebarang ketakpatuhan seksyen 10(2) APJ di pihak Responden. Ketidakpatuhan seksyen 10(4) APJ [46] Seksyen 10(4) memperuntukkan berikut: “... (4) If the Board makes a decision under paragraph (3)(b), it shall forward a copy of its decision to the officer having custody of the person, who shall forthwith serve a copy of the decision of the Board on that person.” [47] Seksyen 10(4) ini perlu dibaca bersama dengan peruntukan seksyen 10(1) di mana: 29    “10. (1) If the Inquiry Officer is satisfied that there are no sufficient grounds for believing that the person who was the subject of the inquiry is a member of any of the registrable categories, he shall report his finding, together with his reasons for it, to the Board, and shall forward a copy of his finding to the officer having custody of the person, who shall forthwith serve a copy of the finding of the Inquiry Officer on that person.” [48] Kes di hadapan Mahkamah ini adalah melibatkan dapatan yang telah dibuat oleh Pegawai Inkuiri menurut seksyen 10(2) dan bukannya menurut seksyen 10(1). Oleh itu, di dalam kes Pemohon, seksyen 10(1) adalah tidak relevan. Maka, apabila seksyen 10(1) adalah tidak relevan, pemakaian seksyen 10(4) juga menjadi tidak relevan. Justeru, isu ketidakpatuhan seksyen 10(4) APJ yang dibangkitkan peguam Pemohon adalah tidak berasas dan tidak mempunyai merit. Kegagalan mematuhi seksyen 7B APJ [49] Peguam Pemohon telah juga membangkitkan bahawa Pelantikan Pengerusi Responden dan ahli Lembaga Pencegahan Jenayah telah dibuat secara tidak sah dan tidak teratur. Namun pengataan ini tidak disokong dengan apa-apa keterangan yang menjadi dasar atau asas 30    pengataan tersebut. Maka, Mahkamah ini berpandangan pengataan peguam Pemohon ini adalah suatu pengataan kosong dan tidak berasas. [50] Walau apa pun, di dalam afidavit Dato' Ahmad Kamal, beliau telah mendeposkan bahawa pelantikan beliau dan ahli Lembaga Pencegahan Jenayah telahpun dibuat secara sah oleh Duli Yang Maha Mulia Seri Paduka Baginda Yang Di-Pertuan Agong. [51] Berbalik pula kepada prinsip undang-undang berkaitan dengan sesuatu permohonan untuk semakan kehakiman, Menurut APJ semakan kehakiman hanya boleh dibenarkan sekiranya terdapat ketidakpatuhan atas prosedur. Ini jelas diperuntukkan di bawah seksyen 15A APJ yang berbunyi berikut: 15A. (1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or finding or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question to compliance with any procedural requirement in this Act governing such act or decision. 31    (2) In this Act, ”judicial review” includes proceedings instituted by way of – (a) an application for any of the prerogative orders of mandamus, prohibition and certiorari; (b) an application for a declaration or an injunction; or (c) any other suit, action or other legal proceedings relating to or arising out any act done or decision made by the Board in accordance with this Act. [52] Prinsip undang-undang mengenai semakan kehakiman juga adalah jelas dan jitu. Ini dapat dilihat kepada kes-kes yang telah diputuskan di bawah ini: Sila lihat: i.Lee Kew Sang v Timbalan Menteri Dalam Negeri & Ors [2005] 3 CLJ 914- "In our view, courts must give effect to the amendments. That being the law, it is duty of the courts to apply them. So, in a habeas corpus application where the detention order of the Minister made under section 4(1) of the Ordinance or, for that matter, the equivalent sections in ISA 7960 and DD(SPM) Act 1985, the first thing that the courts should do is to see whether the ground forwarded is one that 32    falls within the meaning of procedural non-compliance or not. To determine the question, the courts should look at the provisions of the law or the rules that lay down the procedural requirements. It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedaral requirement then there cannot be non-compliance thereof. OnIy if there is that there can be non compliance thereof and only then that the courts should consider whether, on the facts, there has been non-compliance." ii. Timbalan Menteri Keselamatan Dalam Negeri Malaysia & Ors V, Ong Beng Chuan [2006] 4 CLJ 703. Mahkamah di dalam kes ini telah merujuk keputusan di dalam kes Muhammad Jailani Kassim V. Timbalan Menteri Dalam Negeri Malaysia & Ors [2006] 4 CLJ 687 yang mana di dalam penghakiman kes ini di perenggan [6] dan [7] telah menggariskan keadaan di mana sesuatu ketidakpatuhan apa-apa prosedur yang dikategorikan sebagai keperluan prosedur mandatori yang membolehkan mahkamah untuk membatalkan sesuatu keputusan yang dibuat. Dalam kes tersebut, mahkamah telah memutuskan bahawa jika suatu keperluan prosedur itu tidak mengakibatkan ketidakadilan yang ketara kepada Pemohon, maka 33    ia hanya bersifat directori dan mahkamah tidak akan membatalkan perintah yang dikeluarkan atas ketidakpatuhan ini. Perenggan [6] dan [7] di dalam penghakiman Muhammad Jailani Kassim diperturunkan di bawah ini: "[6] The resultant matter for consideration is whether the breach is subject to judicial review. A right to judicial review when there is a breach of a procedural requirement in the making of a detention order under the Act was considered by this court in Muhammad Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2006] 4 CLJ 687 FC in the following words: The effect of a breach of such procedural requirements had been considered in a number of cases. See, for example, Puvaneswaren v. Menteri HaI Ehwal Dalam Negeri Malaysia & Anor [1991] 3 CLJ 649 (Rep); [1991] 2 CLJ 1199; [1991] 3 MLJ 28; Low Teng Hai v. Menteri Dalam Negeri, Malaysia & Others [1992] 2 CLJ (Rep) 816 and Aw Ngoh Leang v. Inspector General of Police [1993] 1 CLJ 373; [1993] 1 MLJ 65. It has been recognised in these cases that a procedural requirement maybe mandatory or directory. A mandatory requirement is one that goes to the root of the matter and is of direct relevance to the detention order. The breach of a mandatory requirement will render the detention order invalid without the need to establish any prejudice. The breach of a procedural requirement which is directory will not be significant provided that there is substantial compliance with the rules with no prejudice having been suffered by the 34    detainee. However it must be observed that the power of the Court to intervene is limited to only matters of compliance with procedural requirements by section 11C(1) of the Act which reads as follows: There shall be no judiclal review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision. It is clear that the section restricts judicial review to only questions on compliance with any procedural requirement governing any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power. Such procedural requirements can only be ones that will go to the root of the matter and be of direct relevance to the making of the detention order. The section only refers to a question of compliance with procedural requirements without subjecting it to any prejudice having been suffered. The test, therefore, in determining whether a breach can be subjected to judicial review is whether it is in compliance with any procedural requirement governing any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with the Act without the need to 35    establish any prejudice. Such a determination will be greatly facilitated, though not decisively, by a consideration of the effect of the statutory provision that has been breached, that is to say, whether it is mandatory or directory in nature. [7] ... In District Board Kheri v. Abdul Majid Khan AIR [1930] )udh 434 it was held that Where the prescription of an Act relates to the perfomance of a duty by a public officer the breach of such prescription when it does not cause any real injustice does not invalidate the act done under the Act and therefore such prescriptions are merely directory. This is particularly so in this case as there is no requirement that the communication must be made by the officer in charge personally. After all s. 9(2) of the Act only provides that for the purpose of enabling a person to make representation he shall be informed of that right. It does not say that the communication must be made by any specified officer. It follows that the fact that the requirements of r. 3(2), (3) and (4) were performed by a person who is not the officer in charge does not invalidate the act done.” [53] Di dalam kes ini, berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini bahawa ketakpatuhan-ketakpatuhan yang dibangkitkan peguam Pemohon tidak timbul sama sekali dan 36    dakwaan-dakwaan Pemohon tidak mempunyai merit. Maka, dengan ini, Mahkamah ini menolak permohonan semakan kehakiman Pemohon dengan kos. Pemohon adalah diperintahkan untuk membayar kepada Responden-Responden kos sebanyak RM5000.00. t.t. .......................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 20haribulan November 2015 Peguam Pemohon - Tetuan Sundarajan & Associates Encik S.Sundarajan Peguam Responden- Responden - Peguam Kanan Persekutuan Kementerian Dalam Negeri Puan Sofiah binti Mohmad Sopah

Tika 2.6.0

28-81-2011

PEMOHON RHB BANK BERHAD (substituting INFRA PURNAMA SDN BHD pursuant to Order of Court dated 7.6.2011) RESPONDEN GULA PERAK BERHAD (Company No. 8104-X)

04/11/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f213d483-404d-4505-b883-a21616a8e5ea&Inline=true

Microsoft Word - 28-81-2011 Gula Perak Bhd Lwn Infra Purnama Sdn Bhd (Enclosure 80) 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA COMPANIES WINDING-UP NO: 28-81-2011 In the matter of Section 218 (e) of the Companies Act 1965 And In the matter of Gula Perak Berhad (Company No. 8104-X) BETWEEN RHB BANK BERHAD (substituting INFRA PURNAMA SDN BHD pursuant to Order of Court dated 7.6.2011) …PETITIONER AND GULA PERAK BERHAD …RESPONDENT (Company No. 8104-X) GROUNDS OF JUDGMENT (Enclosure 80 – Application by Liquidators under Section 236(1)(c) of the Companies Act 1965) A. BACKGROUND FACTS [1] Enclosure 80 is an application by the Liquidators pursuant to Section 236 (1) (c) of the Companies Act 1965 for this Court’s 2    approval to enter into a compromise (to sell off a piece of land in view of debt settlement) between Gula Perak Berhad, Faithmont Estate Sdn Bhd and Ambank (M) Berhad. [2] However, before this Court proceeds to determine the merits of the Liquidators’ application, for easy understanding of the matter at hand, it would be appropriate at this juncture for this Court to briefly set out the background facts of the present case leading to the filing of this Application by the Liquidator. [3] The Respondent (Gula Perak Berhad) was incorporated on 1.10.1968 as a public limited company by shares under the Companies Act 1965 (the Act). [4] Gula Perak Berhad (“GPB”) had obtained financial assistance from Syndicated Term Loan Lenders. The Syndicated Term Loan Lenders are namely; Aseambankers Malaysia, RHB Bank Berhad (“RHB”), Ambank (M) Berhad) (“Ambank”), DBS Bank LTD Cawangan Labuan (“DBS”), Alliance Merchant Bank Berhad (“Alliance”), Malaysian Industrial Development Finance Berhad (“MIDF”), Sounthern Bank Berhad, Affin Bank Berhad (“Affin”) and Malayan Banking Berhad (“Maybank”) {lenders}. 3    [5] GPB was not able to service its syndicated term loan facility and thus has defaulted payments. This default has led to all the lenders initiating legal proceedings against the GPB to recover the outstanding loans. A civil suit (Kuala Lumpur High Court Suit No: D5-22-1648-2005) was thereafter filed by the lenders against the Respondent and its guarantor, one Lim Sue Beng. [6] After a full trial, a judgment dated 29.10.2010 (“the said judgment”) was granted in favour of the lenders. Against the said judgment, GPB filed its notice of appeal to the Court of Appeal. The Court of Appeal dismissed the GPB’s appeal on 29.3.2011. On 28.6.2011, the Federal Court dismissed the GPB’s application for leave to appeal to the Federal Court. [7] On 15.3.2011, a company by the name of Infra Purnama Sdn Bhd (“Infra”) had presented a winding-up petition under section 218 of the Companies Act 1965 at the Shah Alam High Court against the Respondent on the Respondent’s inability to pay Infra a debt amounting to RM4,004,459.70. 4    [8] A copy of the winding-up petition and the affidavit verifying petition was forwarded by Infra’s solicitors to RHB’s solicitors (Messrs. Soo Thien Ming & Nashrah) by Infra’s letter dated 29.4.2011. Messrs. Soo Thien Ming & Nashrah on behalf of RHB thereafter filed a notice of intention to appear on the petition to support the winding- up petition. [9] However, Infra’s petition was subsequently struck out by the Court when Infra applied to withdraw its petition on the ground that the Respondent had paid Infra’s outstanding debt. [10] RHB being a judgment creditor of the Respondent was however desirous to proceed with the winding up petition. RHB thereafter had applied to set aside the order striking out the winding up petition. RHB was successful in its application and by a Court order dated 7.6.2011 RHB was substituted as the petitioner in the winding-up petition against the Respondent. [11] Alliance, Affin, DBS, Ambank, Maybank and CIMB Bank Berhad are Supporting Creditors to the winding-up petition. 5    [12] On 1.3.2013, RHB’s winding up petition to wind up the Respondent was granted by the Court. Since the winding up order, the Respondent is under liquidation and thus, the affairs and management of the Respondent is now being administered and managed by court appointed Liquidators namely Ooi Woon Chee and Ong Hock An (now is replaced by Mohamed Raslan Abdul Rahman). [13] It is resoundingly undisputed that GPB indeed is indebted to Ambank (“the bank’) to the whopping amount of RM74,897.326.66 as at 31.7.2010 (exhibit “CWC-7”, Enclosure 83) and as at the date of its winding up on 1.3.2013, GPB is still indebted to the bank in the total sum of RM81,037,450.62. [14] Initially, GPB was granted a term loan of RM 190,000,000.00 from the bank under a term loan agreement dated 13.11.1997. Unsurprisingly GPB defaulted payments and in view of settlement with the bank {Settlement Agreement dated 8.10.1999 (Exhibit “CWC-2”, Enclosure 83)}, GPB issued 5-year 3 % redeemable secured bonds for a nominal value of RM90,124,000.00 on 8.10.1999 for the full and final settlement of the term loan (Exhibit “CWC-3”, Enclosure 83). The bonds were secured by a legal 6    charge in favour of the bank, executed over an oil palm estate land known as Sitiawan Estate (“the said land”) held under H.S. (D) 1668, P.T. No. 1058, Mukim Durian Sebatang, District of Hilir Perak, Perak Darul Ridzuan (“Lot 1058”). It follows that the charge was then substituted with a Deed of Assignment dated 17.10.2006. [15] GPB remained to default the repayments to the bank. Following this string of defaults, the bank sought to realize the Deed of Assignment but only to be hindered by a caveat lodged by a company by the name of Faithmont Estate Sdn Bhd (Faithmont) in the said land. [16] Before the commencement of the winding up proceeding against GPB, on 25.03.2010, Faithmont initiated a civil action against GPB in the High Court of Malaya at Kuala Lumpur vide a Civil Suit No. S-24-636-2010 (“the KL Suit”) claiming for specific performance of a Sale and Purchase Agreement dated 28-10-2005 in respect of the said land against GPB. GPB had defended the action by filing a Statement of Defence and Counterclaim against Faithmont. 7    [17] In another related suit, Faithmont on 13-04-2012 had also filed a suit against Ambank (the bank) in respect of the said land in the High Court of Malaya at Kuala Lumpur vide Civil Suit No. 22NCVC-438-04/2012 (“the Ambank Suit”). Faithmont and Ambank were engaged in the Ambank suit over the removal of the caveat in the said land. [18] Since the matters in these aforementioned suits involve the said land, all of the suits were consolidated and full trial proceeded before Justice Dato’ Wira Kamaludin. In the midst of trial, the dispute was successfully mediated of which the GPB, Faithmont, and the bank (the parties) reached a compromise. [19] With regards to the compromise, the parties have reached a broad agreement and had incorporated the broad terms in a draft Consent Judgment. The broad terms which were agreed by the parties are as follows: 1.  The  Sale  and  Purchase  Agreement  dated  28.10.2005  (“the  said  Sale  and  Purchase Agreement”) made between the Faithmont Estate Sdn Bhd (“The  Plaintiff”) and Gula Perak Berhad in Liquidation (“Gula Perak”) in respect of  all  that area consisting of palm plantation and held under H.S.  (D) 20225,  8    Lot No. 11447, Mukim Durian Sebatang, District of Hilir Perak, Perak Darul  Ridzuan,  [formerly  known  as H.S.(D)  1668, No.  P.T.  1058, Mukim Durian  Sebatang, Daerah Hilir Perak Darul Ridzuan] (“the said Property”) is a valid  and subsisting agreement and is binding upon Gula Perak.    2.  That  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall within seven (7) days from the date of this Order execute a valid and  registrable Memorandum  of  Transfer  in  respect  all  the  said  Property  in  favour  of  the  Plaintiff  and  deposit  the  same  with  Messrs  Bharti  Seth  Associates  (“the  Plaintiffs  Solicitors”)  as  stakeholders  pending  the  completion of the said Sale and Purchase Agreement.    3.  That  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall within seven (7) days from the date of this Order execute and forward  all the relevant consent  forms to obtain the consent of  the relevant State  Authority to the Plaintiff’s Solicitors to enable the Plaintiff to apply for the  State Consent.    4.  That  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall within seven (7) days from the date of this Order execute and forward  the relevant forms to obtain the Estate Land Board Approval (Form 14D) to  the Plaintiff’s Solicitors to enable the Plaintiff to apply for the Estate Land  Board Approval.    5.  To facilitate towards the completion of the Sale and Purchase Agreement,  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall  within seven days from the date of this Order create an Irrevocable Power  of Attorney in favour of the Plaintiff in relation to the said Property and the  Plaintiff shall take steps to have the said Power of Attorney duly registered  with the High Court of Malaya and the Land Office.    6.  In the event the Liquidators and/or Directors of Gula Perak, as the case may  be, fails to comply with the Prayers 2,3,4 and 5 above within the stipulated  seven  (7) days  from the date of this Order,  then the Registrar of  the High  Court shall execute the Memorandum of Transfer, the State Consent forms,  and the Form 14D and all other necessary documents to give effect to the  terms of this Order as and when required at the request of the Plaintiff.    7.  AmBank  agrees  that  the  Redemption  Sum  of  the  said  Property  shall  be  RM26,000,000.00 to be paid by the Plaintiff to AmBank and which amount  shall be paid in the following manner:‐  9      (a)  The  Plaintiff  shall  deposit  a  sum  of  RM2,600,000.00  with Messrs  Shook Lin & Bok (“AmBank’s Solicitors”) within one (1) month from  the  date  of  this Order  as  stakeholders  pending  completion  of  the  Sale and Purchase Agreement.       (b)  The Plaintiff  and/or  the Plaintiff’s  Financiers  shall pay  the balance  redemption  sum of RM23,400,000.00  to AmBank upon  completion  of the Sale and Purchase Agreement (“Balance Redemption Sum”).    8.  To facilitate towards the completion of the Sale and Purchase Agreement,  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall  within seven days from the date of this Order create an Irrevocable Power  of Attorney in favour of the Plaintiff in relation to the said Property and the  Plaintiff shall take steps to have the said Power of Attorney duly registered  with the High Court of Malaya and the Land Office.    9.  In the event the Liquidators and/or Directors of Gula Perak, as the case may  be, fails to comply with the Prayers 2,3,4 and 5 above within the stipulated  seven  (7) days  from the date of this Order,  then the Registrar of  the High  Court shall execute the Memorandum of Transfer, the State Consent forms,  and the Form 14D and all other necessary documents to give effect to the  terms of this Order as and when required at the request of the Plaintiff.    10.  AmBank  agrees  that  the  Redemption  Sum  of  the  said  Property  shall  be  RM26,000,000.00 to be paid by the Plaintiff to AmBank and which amount  shall be paid in the following manner:‐    (a)  The  Plaintif  shall  deposit  a  sum  of  RM26,000,000.00 with Messrs  Shook Lin & Bok (“AmBank’s Solicitors”) within one (1) month from  the  date  of  this Order  as  stakeholders  pending  completion  of  the  Sale and Purchase Agreement.   (b)  The Plaintiff  and/or  the Plaintiff’s  Financiers  shall pay  the balance  redemption  sum of RM23,400,000.00  to AmBank upon  completion  of the Sale and Purchase Agreement (“Balance Redemption Sum”).    In the event the transaction does not complete for any reasons whatsoever  then AmBank’s Solicitors shall refund the sum of RM2,600,000.00 together  with all interest accrued thereon to the Plaintiff.    10    11.  Upon obtaining the State Consent and the Estate Land Board Approval and  after  adjudication  and  stamping  of  the  Memorandum  of  Transfer  BUT  PROVIDED ALWAYS that it will be prior to presentation of the documents at  the  relevant  land Office  (to  effect  the  transfer  of  the  said  Property  from  Gula  Perak  to  the  Plaintiff),  the  Plaintiff  and/or  its  Financiers  shall  pay  AmBank  the  Balance  Redemption  Sum  in  return  for  the  following  documents  to  be  given  to  the  Plaintiff’s  Solicitors  and/or  the  Plaintiff’s  Financiers:‐    (a)  The original Document of Title  in respect of H.S. (D) 20225, Lot No.  11447, Mukim Durian Sebatang, District of Hilir Perak, Perak Darul  Ridzuan free from all encumbrances.    (b)  The duly executed and  stamped Deed of Revocation,  revoking  the  Deed  of  Assignment  dated  17.10.2006  entered  into  between  the  Plaintiff and Gula Perak.    (c)  The duly executed Form 19G under Section 325 of the National Land  Code 1965  for  removal of AmBank’s Private Caveat  lodged on  the  said Property vide Presentation No. 11110/2009 dated 7.7.2009.      12.  In  the  event,  the  Plaintiff  takes  a  loan  from  a  financial  institution  then  AmBank  and  the  Liquidators  and/or Directors  of Gula  Perak,  as  the  case  may be, shall handover all the relevant documents as required to give effect  to this Order, to the financial institution concerned including but not limited  to all the undertakings required.    13.  The  Plaintiff  shall  ensure  that  the  relevant  State  Consent  and  the  Estate  Land Board Approval  is obtained by or before 31.12.2015 failing which the  Plaintiff  shall  inform  AmBank  of  the  extention  of  time  required  until  29.2.2016.    14.  In the event the Plaintiff is unable to obtain the relevant State Consent and  the Estate Land Board Approval by 29.2.2016, then the Plaintiff shall write  to AmBank for a further extension of time for a period of three (3) months  from  29.2.2016  at  an  agreed  interest  of  5%  on  the  Balance  Redemption  Sum.    15.  Upon  obtaining  both  the  State  Consent  and  the  Estate  Land  Board  Approval,  the Plaintiff’s Solicitors  shall proceed with  the adjudication and  stamping of the Memorandum of Transfer.  11      16.  The Plaintiff shall pay a sum of RM85,000.00 to Gula Perak in full and final  settlement of all Gula Perak’s claim  in  respect of  the  said Property which  monies shall be paid in the following manner:‐     (a)  The  Plaintiff  shall  pay  the  sum  of  RM85,000.00  to Messrs  Teh  &  Associates  (solicitors  for  the  Liquidators  of  Gula  Perak)  upon  compliance by the Liquidators and/or Directors of Gula Perak, as the  case may be, of paragraphs 2, 3, 4 and 5 above, which sum Messrs  Teh & Associates shall hold as stakeholders until completion of the  Sale and Purchase Agreement.    (b)  The balance  sum of RM765,000.00  shall be paid by  the Plaintiff  to  Messrs  Teh  &  Associates  as  stakeholders  upon  obtaining  the  Consent of the State Authority and the Estate Land Board Approval,  which sum Messrs Teh & Associates shall hold as stakeholders until  completion of the Sale and Purchase Agreement.    In the event the transaction does not complete for any reasons whatsoever  then  Messrs  Teh  &  Associates  shall  refund  the  sum  of  RM850,000.00  together with all interest accrued thereon to the Plaintiff.    17.  AmBank  shall  pay  a  sum  of  RM650,000.00  to  Gula  Perak  upon  the  completion of the said Sale and Purchase Agreement.     18.  For the purpose of this Order, the completion of the said Sale and Purchase  Agreement  shall  be  the  day  the  said  Property  has  been  registered  and  transferred in the name of the Plaintiff.    19.  The Plaintiff, AmBank and  the Liquidators and/or Directors of Gula Perak,  as  the  case may  be,  shall  execute  all  documents  required  by  any  party  and/or  the  Plaintiff’s  Financiers  as  and when  requested  to  complete  this  Sale and Purchase Agreement and the parties shall comply within fourteen  (14) days of such request being made.    20.  Upon  completion,  all  parties  shall  have  no  claims  against  each  other  in  relation  to  the  said  Property  or  in  anyway  concerning  the  said  Property  whatsoever.    12    21.  In the event of default by any parties herein, it is mutually agreed that the  party in default is in contempt of Court and the aggrieved party shall be at  liberty to take whatever action they deem fit against the defaulting party.    22.  Each party to bear its own costs.    23.  Parties are at liberty to apply to this Honourable Court to give effect of the  terms of this Order.      [20] Thus, this Enclosure 80 in the present case before this Court is simply a Notice of Motion by the Liquidators under Section 263(1)(c) of the Companies Act 1965 for this Court’s approval to enter into a compromise (to sell off a piece of land in view of debt settlement) between the debtor (“GPB”), a caveator (“Faithmont”) and Ambank. [21] And just for the sake of clarity, the compromise only involves GPB, Ambank and Faithmont considering Faithmont’s interest in the land and in no way shape or form involves any of the unsecured creditors or contributories of GPB. Thus, the compromise is definitely not a scheme of arrangement under Section 176 of the Companies Act. The approval of the majority of the unsecured creditors and/or contributories is irrelevant and unnecessary in the present case. 13    [22] Nonetheless, the unsecured creditor of GPB, Yakin Tenggara Sdn Bhd (“Yakin”) as well as one contributory of GPB, Datuk Lim Sue Beng (“LSB”) opposes the compromise mainly on the following grounds: i. The compromise is null and void as it is allegedly in contravention of Section 214A(4) of the National Land Code for want of Estate Land Board Approval; ii. The liquidators have allegedly disregarded the interests of Yakin as an unsecured creditor; iii. The liquidators had entered into the compromise without considering any legal opinions; [23] This Court must emphasise from the outset that the grounds in which Yakin opposes this compromise is remarkably less than tenable. The precedents relied upon by Yakin was read wrongly as well as in an incorrect manner in which the precedents in reality do not support its case. This shall be addressed later in this judgment. 14    B. YAKIN HAS NO INTEREST IN THE PROCEEDS OF THE SALE [24] Yakin argues that it has interest over the sale proceeds owing to the fact that it is an unsecured creditor to GPB who owes Yakin monies. Yakin further submits that the land’s value should be more than double of what was agreed under the compromise at RM52.8 million. Generally any creditor, either secured or unsecured would have an interest in the assets of a debtor. However, their interest can be rendered irrelevant owing to the state of the debtor’s finances and the priority of payments of the sale proceeds of a debtor’s asset. Particularly, if an interest ultimately remains unaffected or constant whichever way a case is determined, the Court ought not to consider that interest. And this is exactly the present case before the Court. GPB’s state of finance is exceedingly dire that there is no chance at all that the sale proceeds would ever make it to the bottom of the priority, being the unsecured creditors. In fact, the condition is so grim, that even the proceeds of the sale is not even remotely close to being sufficient to settle the total amount owed to the bank. [25] GPB owes upwards to a stunning amount of RM81,037,450.62 as at the date of its winding, just to the bank, one of the many 15    secured creditors of GPB. GPB owes an approximate amount of RM149,432,574.28 to various creditors. The compromise would only rake in a proceed of RM26,000,000.00 which is not even remotely close to the amount of debt owed just to the bank. The prospect of any of the proceeds from the sale under the compromise to be distributed to Yakin is legally and logically non- existent. Even if indeed Yakin were to prove that the land’s value should be RM52.8 million, the entirety of the proceeds would all still be paid to the bank. Yakin’s and the contributories’ interests remain unchanged and unperturbed, as well as irrelevant. GPB’s state of finance is far too destitute to even consider the interest of an unsecured creditor or contributory. [26] This Court is guided by the decision of the English Court of Appeal in re Greenhaven Motors Ltd (in liquidation) (1999) 1 BCLC 635 which had held the following: "the court may have to weigh the different interests of creditors and contributories and perhaps, the different interests of preferential and non-preferential creditors. It will not give weight to the wishes of those who will be unaffected whichever way the decision goes; ; for 16    example, the interests of contributories who have no realistic prospect of receiving a distribution in any foreseeable circumstances…” [27] Closer to home, it was decided by the Federal Court in the case of Francis Augistine Pereira v Dataran Mantin Sdn Bhd & Ors and other Appeals [2014] 6 MLJ 56 that: “As at 31 October 2012, the amount owed to OCBC Bank was RM42,707,322.41 which was more than the current value of the Project Land of RM35,000,000.00. There would not be any surplus sale proceeds to be given to Mico Vionic and the creditors of Dataran Mantin. It is clear that the actions by Legenda and Mico Vionoc did not in face benefit Dataran Mantin’s creditors and appear pointless” [28] Thus, it is this Court’s finding that indeed Yakin’s interest is undeniably irrelevant in the compromise as well as the present Motion. 17    C. THE LIQUIDATORS HAVE ENTERED INTO THE COMPROMISE IN GOOD FAITH [29] Rather incredulously, Yakin sought to prove that the compromise ought not to be allowed simply for the reason that the Liquidators have not obtained any legal opinion prior to entering into the compromise. Now, it is this Court’s judgment that this contention must fail on two grounds. Firstly, it is not the law that the singular and isolated act of obtaining legal opinion is a requirement to show propriety of a compromise. Secondly, the Liquidators in the present case indeed had obtained legal opinion before entering into the compromise, which is only one of the many evidences that the Liquidators have entered into the compromise properly and in good faith. Yakin’s reliance on the case of Pan Electrics Sdn Bhd v ITD Vertex Consortium Sdn Bhd [2014] 1 LNS 1635 is misconceived. A holistic reading of the decision on obviously reveal that it was never the Court’s intention to make the attainment of a legal opinion mandatory in order for a compromise to be properly entered into. Instead, the principle enunciated in the case is that, the insofar the Compromise is concerned, the Court is only concern is to determine whether or not a deed of assignment and settlement agreement was concluded with no error of law 18    and/or bad faith and/or impropriety. The factum of legal opinion was only one of the many factors in which the Court considered apart from the barrage of other factors in which the Court took cognizance of. This is clear in the following excerpt of the Court’s decision: “26. In the light of the above authorities, I think learned counsel for the Liquidator is right when he said that the Court's role is to merely consider whether the commercial decision of the Liquidator in entering into the Deed Of Assignment and the Settlement Agreement was made with no error of raw and/or bad faith and/or impropriety. 27. With respect, I find the decision of the Liquidator to enter into the Deed Of Assignment and the Settlement Agreement is justified. In relation to this, I accept the submission of the Liquidator that: i) The Respondent Company's prospect of success in the 1st and 2nd suit is not certain and therefore, like in all forms of litigation, the Respondent Company is exposed to its inherent risks. 19    ii) The evidence which has been heard in the 1st Suit and its relation to the 2nd Suit (together with an exposure to a Counterclaim of about RM207,425,000.00 in the 2nd Suit) may outweigh the prospects of the success in both Suits. iii) The Liquidator has weighed the strengths and weaknesses of the Respondent Company's case in the 1st and 2nd Suit before entering into the said Settlement Agreement. iv) The Liquidator made his decision of entering into the said Settlement Agreement after obtaining legal advice from counsel with over 18 years in practice who specialises in the conduct of cases of this nature. v) The Liquidator made a commercial decision to enter into the said Settlement Agreement. vi) The Court is to only consider whether the decision of the Liquidator as an officer of the Court in entering into 20    the said Settlement Agreement was made with no error of law and/or bad faith and/or impropriety. vii) The Creditors have failed to show any error of law and/or bad faith and/or impropriety on the part of the Liquidator in entering into the said Settlement Agreement. [30] Clearly, the obtaining of legal opinion was only one of the seven different factors considered by the Court. Ultimately, upon consideration of the facts and evidences, the Court should consider if there was any proof of an error of law, bad faith and/or impropriety on the Liquidator’s part. And this is exactly what the Yakin had failed to prove. [31] There are numerous facts which vividly indicate the genuine effort of the Liquidators in reaching the compromise. Inter alia those facts are that: i. the Liquidators have properly considered the prospect of success and risks involved in the legal suits; 21    ii. the Liquidators have properly identified that the realisation of the land’s value would not even come close to the total debt owed to the bank; iii. the liquidators have properly identified that the interests of the unsecured creditors and contributories are no longer relevant to the sale as there would not be any surplus sale proceeds to be distributed to the unsecured creditors and contributories; iv. the liquidators indeed have prudently entered into the compromise after obtaining legal advice from their counsel, Dato Kirubakaran, a lawyer with almost 35 years of experience in practice; v. the bank, as the only secured creditor had already consented to the Compromise; vi. the compromise was reached at the recommendation and mediation of the trial judge who has had the opportunity to assess the full breadth of the consolidated suit; and 22    vii. there was no error of law or bad faith or impropriety on the part of the liquidators in entering into the compromise. [32] Thus, it is this Court’s finding that the Liquidators have properly entered into the compromise in good faith with no error of law. D. THE COMPROMISE IS NOT IN CONTRAVENTION OF THE NATIONAL LAND CODE [33] In desperation to salvage an otherwise untenable case, Yakin contended that the compromise is an illegal compromise simply because the parties to the compromise have yet to obtain the Estate Land Board’s approval under Section 214A(10A) of the National Land Code. Let this Court be clear from this juncture that this section only stipulates that a transfer of estate land requires the Estate Land Board’s approval and a transfer without such approval shall render the transfer invalid and parties involved in the transfer shall be liable to an offence. The Section does not mention of any agreements to transfer estate land, but specifically the act of transferring the estate land. This is the distinction that Yakin had unfortunately failed to understand. 23    [34] The compromise itself was pre-conditioned with the attainment of the proper approval from the Estate Land Board. The compromise was entered in view of full compliance of the National Land Code. And such agreement is verily valid by law. Again, it is the act of transferring without approval that is an offence, not the agreement to transfer. [35] Yakin had also placed a misconceived reliance on the decision of Tai Thong Flower Nursery Sdn Bhd v Master Pyrodor Sdn Bhd [2014] 9 CLJ 74. The Court of Appeal decision here instead was in the favour of the Liquidators and nowhere in the favour of Yakin. In Tai Thong’s case, the prevailing issue is not the agreement to transfer, but the sheer act of transferring without approval itself. Clearly the act of transferring estate land without approval contravenes the National Land Code. It is vivid that the Court of Appeal had employed many qualifications in explaining its decision so as to not lead to confusion, which remarkably, Yakin indeed is confused. The Court of Appeal had clearly held that an agreement to transfer estate land without prior approval of Estate Land Board is NOT void: 24    “S. 214A of the NLC did not itself provide that an agreement to transfer, convey or dispose of estate land without the approval of the Estate Land was void” [36] Following this qualification, the Court of Appeal proceeded to hold that, it is instead the consequent act of transferring the estate land without approval that is in contravention with the National Land Code. The wording used was conjunctive, particularly the word “and”: “…any contract for such transfer, conveyance or disposal AND consequently any memorandum of transfer pursuant to such contract, was liable to be struck down as being void for illegality…” [37] It is only if the contract was performed and the transfer was affected without the proper approval that the entire transaction becomes null and void. The isolated agreement to transfer without prior approval is not at all legally wrong. Clearly the Court of Appeal in the case had emphasised on the ensuing and consequent transfer without approval rather than the singular and isolated act of entering into the agreement. 25    [38] This Court is further guided by the case of Rengamah A/P Rengasamy v Tai Yoke Lai & Anor [1998] 5 MLJ 260 in which the Court there has clearly interpreted Section 214A of the NLC that the provision does not intend to invalidate agreements to transfer, but to invalidate transfers in absence of approval. It was also held that there is absolutely nothing illegal to enter into an agreement in contemplation of the approval although approval has not yet been obtained: “That is precisely what the Plaintiff did. Clause 3 and the addendum to the agreement depict the conditional nature of the agreement and the effect of failure to obtain the required consent in crystalline terms. This does not violate s, 214A(1). … “The language employed in the section…shows that the agreement is not void. In fact, the subsection contemplates such an agreement. The terms of the agreement dictate that until the condition specified therein is fulfilled, the said land is 26    not capable of being transferred, conveyed or disposed of in any manner whatsoever as the agreement does not take effect as a contract of sale till then. It is therefore not illegal and, accordingly cannot be declared null and void.” (See also Vellasamy A/L Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN 35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh a/l Bagawan Singh & Ors [2010] 5 MLJ 437) [39] Therefore, it is this Court’s finding that the compromise is not at all in contravention of the National Land Code and remains a valid and enforceable agreement between the parties to the compromise. E. THERE IS NO REQUIREMENT OF A COMMITTEE OF INSPECTION [40] There is no necessity for this Court to go at extreme lengths over this erroneous contention brought forth by Yakin. In reliance of the cases of North Place Sdn Bhd v Equiticorp Holdings Ltd & Ors 27    [2013] 3 MLJ and Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761, it was erroneously submitted by Yakin that it is incumbent for the liquidators to form a Committee of Inspection (“COI”) before entering into the compromise. However, a simple and plain reading of both these cases would reveal that the requirement of a COI in these cases were deliberated not because it is a general requirement, but mainly because the setting up of the COI was ordered by the Court. Thus, the case was determined not on the mandatory necessity of setting up a COI, but instead on the adherence and compliance with a Consent Judgment ordered by the Court. Thus, these cases are clearly distinguishable from the present case. Thereto, it is this Court’s finding that the liquidators are not required to set up a COI before entering into the compromise. F. COURT’S DECISION [41] In view of all of the above, it is this Court’s finding that Yakin and LSB have ultimately failed to prove their case against the Notice of Motion (Enclosure 80). 28    [42] Consequently, this Court grants order-in-terms to Enclosure 80, for the liquidators to enter into the compromise between GPB, the bank, as well as Faithmont. On the issue of costs [43] Having heard the submissions from the learned counsels for the Liquidators, Ambank, Yakin and LSB, this Court hereby orders that the costs of this application in respect of the Liquidators shall be costs in the cause. This Court also orders Yakin and LSB to pay Ambank RM8000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 4th November, 2015 29    For the Applicant/ Liquidators - Messrs. Teh & Associates Dato’ K. Kirubakaran For the Ambank (Malaysia) Berhad/ - Messrs. Shook Lin & Bok Supporting Creditor Lau Kee Sern Lim Pey Tsyr For the Yakin Tenggara Sdn Bhd - Messrs S. Ravenesan (Unsecured Creditor) Wong Rhen Yen Ravenesan Sivanesan Y.L Chok For Lim Sue Beng (Contributory) - Messrs Jamie Wong Jamie Wong

Tika 2.6.0

28-81-2011

PLAINTIF RHB BANK BERHAD (substituting INFRA PURNAMA SDN BHD pursuant to Order of Court dated 7.6.2011) DEFENDAN Gula Perak Berhad

04/11/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fe3ea54a-0829-4dc7-9855-cb8d11cf8676&Inline=true

Microsoft Word - 28-81-2011 Gula Perak Bhd Lwn Infra Purnama Sdn Bhd (Enclosure 80) 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA COMPANIES WINDING-UP NO: 28-81-2011 In the matter of Section 218 (e) of the Companies Act 1965 And In the matter of Gula Perak Berhad (Company No. 8104-X) BETWEEN RHB BANK BERHAD (substituting INFRA PURNAMA SDN BHD pursuant to Order of Court dated 7.6.2011) …PETITIONER AND GULA PERAK BERHAD …RESPONDENT (Company No. 8104-X) GROUNDS OF JUDGMENT (Enclosure 80 – Application by Liquidators under Section 236(1)(c) of the Companies Act 1965) A. BACKGROUND FACTS [1] Enclosure 80 is an application by the Liquidators pursuant to Section 236 (1) (c) of the Companies Act 1965 for this Court’s 2    approval to enter into a compromise (to sell off a piece of land in view of debt settlement) between Gula Perak Berhad, Faithmont Estate Sdn Bhd and Ambank (M) Berhad. [2] However, before this Court proceeds to determine the merits of the Liquidators’ application, for easy understanding of the matter at hand, it would be appropriate at this juncture for this Court to briefly set out the background facts of the present case leading to the filing of this Application by the Liquidator. [3] The Respondent (Gula Perak Berhad) was incorporated on 1.10.1968 as a public limited company by shares under the Companies Act 1965 (the Act). [4] Gula Perak Berhad (“GPB”) had obtained financial assistance from Syndicated Term Loan Lenders. The Syndicated Term Loan Lenders are namely; Aseambankers Malaysia, RHB Bank Berhad (“RHB”), Ambank (M) Berhad) (“Ambank”), DBS Bank LTD Cawangan Labuan (“DBS”), Alliance Merchant Bank Berhad (“Alliance”), Malaysian Industrial Development Finance Berhad (“MIDF”), Sounthern Bank Berhad, Affin Bank Berhad (“Affin”) and Malayan Banking Berhad (“Maybank”) {lenders}. 3    [5] GPB was not able to service its syndicated term loan facility and thus has defaulted payments. This default has led to all the lenders initiating legal proceedings against the GPB to recover the outstanding loans. A civil suit (Kuala Lumpur High Court Suit No: D5-22-1648-2005) was thereafter filed by the lenders against the Respondent and its guarantor, one Lim Sue Beng. [6] After a full trial, a judgment dated 29.10.2010 (“the said judgment”) was granted in favour of the lenders. Against the said judgment, GPB filed its notice of appeal to the Court of Appeal. The Court of Appeal dismissed the GPB’s appeal on 29.3.2011. On 28.6.2011, the Federal Court dismissed the GPB’s application for leave to appeal to the Federal Court. [7] On 15.3.2011, a company by the name of Infra Purnama Sdn Bhd (“Infra”) had presented a winding-up petition under section 218 of the Companies Act 1965 at the Shah Alam High Court against the Respondent on the Respondent’s inability to pay Infra a debt amounting to RM4,004,459.70. 4    [8] A copy of the winding-up petition and the affidavit verifying petition was forwarded by Infra’s solicitors to RHB’s solicitors (Messrs. Soo Thien Ming & Nashrah) by Infra’s letter dated 29.4.2011. Messrs. Soo Thien Ming & Nashrah on behalf of RHB thereafter filed a notice of intention to appear on the petition to support the winding- up petition. [9] However, Infra’s petition was subsequently struck out by the Court when Infra applied to withdraw its petition on the ground that the Respondent had paid Infra’s outstanding debt. [10] RHB being a judgment creditor of the Respondent was however desirous to proceed with the winding up petition. RHB thereafter had applied to set aside the order striking out the winding up petition. RHB was successful in its application and by a Court order dated 7.6.2011 RHB was substituted as the petitioner in the winding-up petition against the Respondent. [11] Alliance, Affin, DBS, Ambank, Maybank and CIMB Bank Berhad are Supporting Creditors to the winding-up petition. 5    [12] On 1.3.2013, RHB’s winding up petition to wind up the Respondent was granted by the Court. Since the winding up order, the Respondent is under liquidation and thus, the affairs and management of the Respondent is now being administered and managed by court appointed Liquidators namely Ooi Woon Chee and Ong Hock An (now is replaced by Mohamed Raslan Abdul Rahman). [13] It is resoundingly undisputed that GPB indeed is indebted to Ambank (“the bank’) to the whopping amount of RM74,897.326.66 as at 31.7.2010 (exhibit “CWC-7”, Enclosure 83) and as at the date of its winding up on 1.3.2013, GPB is still indebted to the bank in the total sum of RM81,037,450.62. [14] Initially, GPB was granted a term loan of RM 190,000,000.00 from the bank under a term loan agreement dated 13.11.1997. Unsurprisingly GPB defaulted payments and in view of settlement with the bank {Settlement Agreement dated 8.10.1999 (Exhibit “CWC-2”, Enclosure 83)}, GPB issued 5-year 3 % redeemable secured bonds for a nominal value of RM90,124,000.00 on 8.10.1999 for the full and final settlement of the term loan (Exhibit “CWC-3”, Enclosure 83). The bonds were secured by a legal 6    charge in favour of the bank, executed over an oil palm estate land known as Sitiawan Estate (“the said land”) held under H.S. (D) 1668, P.T. No. 1058, Mukim Durian Sebatang, District of Hilir Perak, Perak Darul Ridzuan (“Lot 1058”). It follows that the charge was then substituted with a Deed of Assignment dated 17.10.2006. [15] GPB remained to default the repayments to the bank. Following this string of defaults, the bank sought to realize the Deed of Assignment but only to be hindered by a caveat lodged by a company by the name of Faithmont Estate Sdn Bhd (Faithmont) in the said land. [16] Before the commencement of the winding up proceeding against GPB, on 25.03.2010, Faithmont initiated a civil action against GPB in the High Court of Malaya at Kuala Lumpur vide a Civil Suit No. S-24-636-2010 (“the KL Suit”) claiming for specific performance of a Sale and Purchase Agreement dated 28-10-2005 in respect of the said land against GPB. GPB had defended the action by filing a Statement of Defence and Counterclaim against Faithmont. 7    [17] In another related suit, Faithmont on 13-04-2012 had also filed a suit against Ambank (the bank) in respect of the said land in the High Court of Malaya at Kuala Lumpur vide Civil Suit No. 22NCVC-438-04/2012 (“the Ambank Suit”). Faithmont and Ambank were engaged in the Ambank suit over the removal of the caveat in the said land. [18] Since the matters in these aforementioned suits involve the said land, all of the suits were consolidated and full trial proceeded before Justice Dato’ Wira Kamaludin. In the midst of trial, the dispute was successfully mediated of which the GPB, Faithmont, and the bank (the parties) reached a compromise. [19] With regards to the compromise, the parties have reached a broad agreement and had incorporated the broad terms in a draft Consent Judgment. The broad terms which were agreed by the parties are as follows: 1.  The  Sale  and  Purchase  Agreement  dated  28.10.2005  (“the  said  Sale  and  Purchase Agreement”) made between the Faithmont Estate Sdn Bhd (“The  Plaintiff”) and Gula Perak Berhad in Liquidation (“Gula Perak”) in respect of  all  that area consisting of palm plantation and held under H.S.  (D) 20225,  8    Lot No. 11447, Mukim Durian Sebatang, District of Hilir Perak, Perak Darul  Ridzuan,  [formerly  known  as H.S.(D)  1668, No.  P.T.  1058, Mukim Durian  Sebatang, Daerah Hilir Perak Darul Ridzuan] (“the said Property”) is a valid  and subsisting agreement and is binding upon Gula Perak.    2.  That  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall within seven (7) days from the date of this Order execute a valid and  registrable Memorandum  of  Transfer  in  respect  all  the  said  Property  in  favour  of  the  Plaintiff  and  deposit  the  same  with  Messrs  Bharti  Seth  Associates  (“the  Plaintiffs  Solicitors”)  as  stakeholders  pending  the  completion of the said Sale and Purchase Agreement.    3.  That  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall within seven (7) days from the date of this Order execute and forward  all the relevant consent  forms to obtain the consent of  the relevant State  Authority to the Plaintiff’s Solicitors to enable the Plaintiff to apply for the  State Consent.    4.  That  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall within seven (7) days from the date of this Order execute and forward  the relevant forms to obtain the Estate Land Board Approval (Form 14D) to  the Plaintiff’s Solicitors to enable the Plaintiff to apply for the Estate Land  Board Approval.    5.  To facilitate towards the completion of the Sale and Purchase Agreement,  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall  within seven days from the date of this Order create an Irrevocable Power  of Attorney in favour of the Plaintiff in relation to the said Property and the  Plaintiff shall take steps to have the said Power of Attorney duly registered  with the High Court of Malaya and the Land Office.    6.  In the event the Liquidators and/or Directors of Gula Perak, as the case may  be, fails to comply with the Prayers 2,3,4 and 5 above within the stipulated  seven  (7) days  from the date of this Order,  then the Registrar of  the High  Court shall execute the Memorandum of Transfer, the State Consent forms,  and the Form 14D and all other necessary documents to give effect to the  terms of this Order as and when required at the request of the Plaintiff.    7.  AmBank  agrees  that  the  Redemption  Sum  of  the  said  Property  shall  be  RM26,000,000.00 to be paid by the Plaintiff to AmBank and which amount  shall be paid in the following manner:‐  9      (a)  The  Plaintiff  shall  deposit  a  sum  of  RM2,600,000.00  with Messrs  Shook Lin & Bok (“AmBank’s Solicitors”) within one (1) month from  the  date  of  this Order  as  stakeholders  pending  completion  of  the  Sale and Purchase Agreement.       (b)  The Plaintiff  and/or  the Plaintiff’s  Financiers  shall pay  the balance  redemption  sum of RM23,400,000.00  to AmBank upon  completion  of the Sale and Purchase Agreement (“Balance Redemption Sum”).    8.  To facilitate towards the completion of the Sale and Purchase Agreement,  the  Liquidators and/or Directors of Gula Perak, as  the  case may be,  shall  within seven days from the date of this Order create an Irrevocable Power  of Attorney in favour of the Plaintiff in relation to the said Property and the  Plaintiff shall take steps to have the said Power of Attorney duly registered  with the High Court of Malaya and the Land Office.    9.  In the event the Liquidators and/or Directors of Gula Perak, as the case may  be, fails to comply with the Prayers 2,3,4 and 5 above within the stipulated  seven  (7) days  from the date of this Order,  then the Registrar of  the High  Court shall execute the Memorandum of Transfer, the State Consent forms,  and the Form 14D and all other necessary documents to give effect to the  terms of this Order as and when required at the request of the Plaintiff.    10.  AmBank  agrees  that  the  Redemption  Sum  of  the  said  Property  shall  be  RM26,000,000.00 to be paid by the Plaintiff to AmBank and which amount  shall be paid in the following manner:‐    (a)  The  Plaintif  shall  deposit  a  sum  of  RM26,000,000.00 with Messrs  Shook Lin & Bok (“AmBank’s Solicitors”) within one (1) month from  the  date  of  this Order  as  stakeholders  pending  completion  of  the  Sale and Purchase Agreement.   (b)  The Plaintiff  and/or  the Plaintiff’s  Financiers  shall pay  the balance  redemption  sum of RM23,400,000.00  to AmBank upon  completion  of the Sale and Purchase Agreement (“Balance Redemption Sum”).    In the event the transaction does not complete for any reasons whatsoever  then AmBank’s Solicitors shall refund the sum of RM2,600,000.00 together  with all interest accrued thereon to the Plaintiff.    10    11.  Upon obtaining the State Consent and the Estate Land Board Approval and  after  adjudication  and  stamping  of  the  Memorandum  of  Transfer  BUT  PROVIDED ALWAYS that it will be prior to presentation of the documents at  the  relevant  land Office  (to  effect  the  transfer  of  the  said  Property  from  Gula  Perak  to  the  Plaintiff),  the  Plaintiff  and/or  its  Financiers  shall  pay  AmBank  the  Balance  Redemption  Sum  in  return  for  the  following  documents  to  be  given  to  the  Plaintiff’s  Solicitors  and/or  the  Plaintiff’s  Financiers:‐    (a)  The original Document of Title  in respect of H.S. (D) 20225, Lot No.  11447, Mukim Durian Sebatang, District of Hilir Perak, Perak Darul  Ridzuan free from all encumbrances.    (b)  The duly executed and  stamped Deed of Revocation,  revoking  the  Deed  of  Assignment  dated  17.10.2006  entered  into  between  the  Plaintiff and Gula Perak.    (c)  The duly executed Form 19G under Section 325 of the National Land  Code 1965  for  removal of AmBank’s Private Caveat  lodged on  the  said Property vide Presentation No. 11110/2009 dated 7.7.2009.      12.  In  the  event,  the  Plaintiff  takes  a  loan  from  a  financial  institution  then  AmBank  and  the  Liquidators  and/or Directors  of Gula  Perak,  as  the  case  may be, shall handover all the relevant documents as required to give effect  to this Order, to the financial institution concerned including but not limited  to all the undertakings required.    13.  The  Plaintiff  shall  ensure  that  the  relevant  State  Consent  and  the  Estate  Land Board Approval  is obtained by or before 31.12.2015 failing which the  Plaintiff  shall  inform  AmBank  of  the  extention  of  time  required  until  29.2.2016.    14.  In the event the Plaintiff is unable to obtain the relevant State Consent and  the Estate Land Board Approval by 29.2.2016, then the Plaintiff shall write  to AmBank for a further extension of time for a period of three (3) months  from  29.2.2016  at  an  agreed  interest  of  5%  on  the  Balance  Redemption  Sum.    15.  Upon  obtaining  both  the  State  Consent  and  the  Estate  Land  Board  Approval,  the Plaintiff’s Solicitors  shall proceed with  the adjudication and  stamping of the Memorandum of Transfer.  11      16.  The Plaintiff shall pay a sum of RM85,000.00 to Gula Perak in full and final  settlement of all Gula Perak’s claim  in  respect of  the  said Property which  monies shall be paid in the following manner:‐     (a)  The  Plaintiff  shall  pay  the  sum  of  RM85,000.00  to Messrs  Teh  &  Associates  (solicitors  for  the  Liquidators  of  Gula  Perak)  upon  compliance by the Liquidators and/or Directors of Gula Perak, as the  case may be, of paragraphs 2, 3, 4 and 5 above, which sum Messrs  Teh & Associates shall hold as stakeholders until completion of the  Sale and Purchase Agreement.    (b)  The balance  sum of RM765,000.00  shall be paid by  the Plaintiff  to  Messrs  Teh  &  Associates  as  stakeholders  upon  obtaining  the  Consent of the State Authority and the Estate Land Board Approval,  which sum Messrs Teh & Associates shall hold as stakeholders until  completion of the Sale and Purchase Agreement.    In the event the transaction does not complete for any reasons whatsoever  then  Messrs  Teh  &  Associates  shall  refund  the  sum  of  RM850,000.00  together with all interest accrued thereon to the Plaintiff.    17.  AmBank  shall  pay  a  sum  of  RM650,000.00  to  Gula  Perak  upon  the  completion of the said Sale and Purchase Agreement.     18.  For the purpose of this Order, the completion of the said Sale and Purchase  Agreement  shall  be  the  day  the  said  Property  has  been  registered  and  transferred in the name of the Plaintiff.    19.  The Plaintiff, AmBank and  the Liquidators and/or Directors of Gula Perak,  as  the  case may  be,  shall  execute  all  documents  required  by  any  party  and/or  the  Plaintiff’s  Financiers  as  and when  requested  to  complete  this  Sale and Purchase Agreement and the parties shall comply within fourteen  (14) days of such request being made.    20.  Upon  completion,  all  parties  shall  have  no  claims  against  each  other  in  relation  to  the  said  Property  or  in  anyway  concerning  the  said  Property  whatsoever.    12    21.  In the event of default by any parties herein, it is mutually agreed that the  party in default is in contempt of Court and the aggrieved party shall be at  liberty to take whatever action they deem fit against the defaulting party.    22.  Each party to bear its own costs.    23.  Parties are at liberty to apply to this Honourable Court to give effect of the  terms of this Order.      [20] Thus, this Enclosure 80 in the present case before this Court is simply a Notice of Motion by the Liquidators under Section 263(1)(c) of the Companies Act 1965 for this Court’s approval to enter into a compromise (to sell off a piece of land in view of debt settlement) between the debtor (“GPB”), a caveator (“Faithmont”) and Ambank. [21] And just for the sake of clarity, the compromise only involves GPB, Ambank and Faithmont considering Faithmont’s interest in the land and in no way shape or form involves any of the unsecured creditors or contributories of GPB. Thus, the compromise is definitely not a scheme of arrangement under Section 176 of the Companies Act. The approval of the majority of the unsecured creditors and/or contributories is irrelevant and unnecessary in the present case. 13    [22] Nonetheless, the unsecured creditor of GPB, Yakin Tenggara Sdn Bhd (“Yakin”) as well as one contributory of GPB, Datuk Lim Sue Beng (“LSB”) opposes the compromise mainly on the following grounds: i. The compromise is null and void as it is allegedly in contravention of Section 214A(4) of the National Land Code for want of Estate Land Board Approval; ii. The liquidators have allegedly disregarded the interests of Yakin as an unsecured creditor; iii. The liquidators had entered into the compromise without considering any legal opinions; [23] This Court must emphasise from the outset that the grounds in which Yakin opposes this compromise is remarkably less than tenable. The precedents relied upon by Yakin was read wrongly as well as in an incorrect manner in which the precedents in reality do not support its case. This shall be addressed later in this judgment. 14    B. YAKIN HAS NO INTEREST IN THE PROCEEDS OF THE SALE [24] Yakin argues that it has interest over the sale proceeds owing to the fact that it is an unsecured creditor to GPB who owes Yakin monies. Yakin further submits that the land’s value should be more than double of what was agreed under the compromise at RM52.8 million. Generally any creditor, either secured or unsecured would have an interest in the assets of a debtor. However, their interest can be rendered irrelevant owing to the state of the debtor’s finances and the priority of payments of the sale proceeds of a debtor’s asset. Particularly, if an interest ultimately remains unaffected or constant whichever way a case is determined, the Court ought not to consider that interest. And this is exactly the present case before the Court. GPB’s state of finance is exceedingly dire that there is no chance at all that the sale proceeds would ever make it to the bottom of the priority, being the unsecured creditors. In fact, the condition is so grim, that even the proceeds of the sale is not even remotely close to being sufficient to settle the total amount owed to the bank. [25] GPB owes upwards to a stunning amount of RM81,037,450.62 as at the date of its winding, just to the bank, one of the many 15    secured creditors of GPB. GPB owes an approximate amount of RM149,432,574.28 to various creditors. The compromise would only rake in a proceed of RM26,000,000.00 which is not even remotely close to the amount of debt owed just to the bank. The prospect of any of the proceeds from the sale under the compromise to be distributed to Yakin is legally and logically non- existent. Even if indeed Yakin were to prove that the land’s value should be RM52.8 million, the entirety of the proceeds would all still be paid to the bank. Yakin’s and the contributories’ interests remain unchanged and unperturbed, as well as irrelevant. GPB’s state of finance is far too destitute to even consider the interest of an unsecured creditor or contributory. [26] This Court is guided by the decision of the English Court of Appeal in re Greenhaven Motors Ltd (in liquidation) (1999) 1 BCLC 635 which had held the following: "the court may have to weigh the different interests of creditors and contributories and perhaps, the different interests of preferential and non-preferential creditors. It will not give weight to the wishes of those who will be unaffected whichever way the decision goes; ; for 16    example, the interests of contributories who have no realistic prospect of receiving a distribution in any foreseeable circumstances…” [27] Closer to home, it was decided by the Federal Court in the case of Francis Augistine Pereira v Dataran Mantin Sdn Bhd & Ors and other Appeals [2014] 6 MLJ 56 that: “As at 31 October 2012, the amount owed to OCBC Bank was RM42,707,322.41 which was more than the current value of the Project Land of RM35,000,000.00. There would not be any surplus sale proceeds to be given to Mico Vionic and the creditors of Dataran Mantin. It is clear that the actions by Legenda and Mico Vionoc did not in face benefit Dataran Mantin’s creditors and appear pointless” [28] Thus, it is this Court’s finding that indeed Yakin’s interest is undeniably irrelevant in the compromise as well as the present Motion. 17    C. THE LIQUIDATORS HAVE ENTERED INTO THE COMPROMISE IN GOOD FAITH [29] Rather incredulously, Yakin sought to prove that the compromise ought not to be allowed simply for the reason that the Liquidators have not obtained any legal opinion prior to entering into the compromise. Now, it is this Court’s judgment that this contention must fail on two grounds. Firstly, it is not the law that the singular and isolated act of obtaining legal opinion is a requirement to show propriety of a compromise. Secondly, the Liquidators in the present case indeed had obtained legal opinion before entering into the compromise, which is only one of the many evidences that the Liquidators have entered into the compromise properly and in good faith. Yakin’s reliance on the case of Pan Electrics Sdn Bhd v ITD Vertex Consortium Sdn Bhd [2014] 1 LNS 1635 is misconceived. A holistic reading of the decision on obviously reveal that it was never the Court’s intention to make the attainment of a legal opinion mandatory in order for a compromise to be properly entered into. Instead, the principle enunciated in the case is that, the insofar the Compromise is concerned, the Court is only concern is to determine whether or not a deed of assignment and settlement agreement was concluded with no error of law 18    and/or bad faith and/or impropriety. The factum of legal opinion was only one of the many factors in which the Court considered apart from the barrage of other factors in which the Court took cognizance of. This is clear in the following excerpt of the Court’s decision: “26. In the light of the above authorities, I think learned counsel for the Liquidator is right when he said that the Court's role is to merely consider whether the commercial decision of the Liquidator in entering into the Deed Of Assignment and the Settlement Agreement was made with no error of raw and/or bad faith and/or impropriety. 27. With respect, I find the decision of the Liquidator to enter into the Deed Of Assignment and the Settlement Agreement is justified. In relation to this, I accept the submission of the Liquidator that: i) The Respondent Company's prospect of success in the 1st and 2nd suit is not certain and therefore, like in all forms of litigation, the Respondent Company is exposed to its inherent risks. 19    ii) The evidence which has been heard in the 1st Suit and its relation to the 2nd Suit (together with an exposure to a Counterclaim of about RM207,425,000.00 in the 2nd Suit) may outweigh the prospects of the success in both Suits. iii) The Liquidator has weighed the strengths and weaknesses of the Respondent Company's case in the 1st and 2nd Suit before entering into the said Settlement Agreement. iv) The Liquidator made his decision of entering into the said Settlement Agreement after obtaining legal advice from counsel with over 18 years in practice who specialises in the conduct of cases of this nature. v) The Liquidator made a commercial decision to enter into the said Settlement Agreement. vi) The Court is to only consider whether the decision of the Liquidator as an officer of the Court in entering into 20    the said Settlement Agreement was made with no error of law and/or bad faith and/or impropriety. vii) The Creditors have failed to show any error of law and/or bad faith and/or impropriety on the part of the Liquidator in entering into the said Settlement Agreement. [30] Clearly, the obtaining of legal opinion was only one of the seven different factors considered by the Court. Ultimately, upon consideration of the facts and evidences, the Court should consider if there was any proof of an error of law, bad faith and/or impropriety on the Liquidator’s part. And this is exactly what the Yakin had failed to prove. [31] There are numerous facts which vividly indicate the genuine effort of the Liquidators in reaching the compromise. Inter alia those facts are that: i. the Liquidators have properly considered the prospect of success and risks involved in the legal suits; 21    ii. the Liquidators have properly identified that the realisation of the land’s value would not even come close to the total debt owed to the bank; iii. the liquidators have properly identified that the interests of the unsecured creditors and contributories are no longer relevant to the sale as there would not be any surplus sale proceeds to be distributed to the unsecured creditors and contributories; iv. the liquidators indeed have prudently entered into the compromise after obtaining legal advice from their counsel, Dato Kirubakaran, a lawyer with almost 35 years of experience in practice; v. the bank, as the only secured creditor had already consented to the Compromise; vi. the compromise was reached at the recommendation and mediation of the trial judge who has had the opportunity to assess the full breadth of the consolidated suit; and 22    vii. there was no error of law or bad faith or impropriety on the part of the liquidators in entering into the compromise. [32] Thus, it is this Court’s finding that the Liquidators have properly entered into the compromise in good faith with no error of law. D. THE COMPROMISE IS NOT IN CONTRAVENTION OF THE NATIONAL LAND CODE [33] In desperation to salvage an otherwise untenable case, Yakin contended that the compromise is an illegal compromise simply because the parties to the compromise have yet to obtain the Estate Land Board’s approval under Section 214A(10A) of the National Land Code. Let this Court be clear from this juncture that this section only stipulates that a transfer of estate land requires the Estate Land Board’s approval and a transfer without such approval shall render the transfer invalid and parties involved in the transfer shall be liable to an offence. The Section does not mention of any agreements to transfer estate land, but specifically the act of transferring the estate land. This is the distinction that Yakin had unfortunately failed to understand. 23    [34] The compromise itself was pre-conditioned with the attainment of the proper approval from the Estate Land Board. The compromise was entered in view of full compliance of the National Land Code. And such agreement is verily valid by law. Again, it is the act of transferring without approval that is an offence, not the agreement to transfer. [35] Yakin had also placed a misconceived reliance on the decision of Tai Thong Flower Nursery Sdn Bhd v Master Pyrodor Sdn Bhd [2014] 9 CLJ 74. The Court of Appeal decision here instead was in the favour of the Liquidators and nowhere in the favour of Yakin. In Tai Thong’s case, the prevailing issue is not the agreement to transfer, but the sheer act of transferring without approval itself. Clearly the act of transferring estate land without approval contravenes the National Land Code. It is vivid that the Court of Appeal had employed many qualifications in explaining its decision so as to not lead to confusion, which remarkably, Yakin indeed is confused. The Court of Appeal had clearly held that an agreement to transfer estate land without prior approval of Estate Land Board is NOT void: 24    “S. 214A of the NLC did not itself provide that an agreement to transfer, convey or dispose of estate land without the approval of the Estate Land was void” [36] Following this qualification, the Court of Appeal proceeded to hold that, it is instead the consequent act of transferring the estate land without approval that is in contravention with the National Land Code. The wording used was conjunctive, particularly the word “and”: “…any contract for such transfer, conveyance or disposal AND consequently any memorandum of transfer pursuant to such contract, was liable to be struck down as being void for illegality…” [37] It is only if the contract was performed and the transfer was affected without the proper approval that the entire transaction becomes null and void. The isolated agreement to transfer without prior approval is not at all legally wrong. Clearly the Court of Appeal in the case had emphasised on the ensuing and consequent transfer without approval rather than the singular and isolated act of entering into the agreement. 25    [38] This Court is further guided by the case of Rengamah A/P Rengasamy v Tai Yoke Lai & Anor [1998] 5 MLJ 260 in which the Court there has clearly interpreted Section 214A of the NLC that the provision does not intend to invalidate agreements to transfer, but to invalidate transfers in absence of approval. It was also held that there is absolutely nothing illegal to enter into an agreement in contemplation of the approval although approval has not yet been obtained: “That is precisely what the Plaintiff did. Clause 3 and the addendum to the agreement depict the conditional nature of the agreement and the effect of failure to obtain the required consent in crystalline terms. This does not violate s, 214A(1). … “The language employed in the section…shows that the agreement is not void. In fact, the subsection contemplates such an agreement. The terms of the agreement dictate that until the condition specified therein is fulfilled, the said land is 26    not capable of being transferred, conveyed or disposed of in any manner whatsoever as the agreement does not take effect as a contract of sale till then. It is therefore not illegal and, accordingly cannot be declared null and void.” (See also Vellasamy A/L Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN 35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh a/l Bagawan Singh & Ors [2010] 5 MLJ 437) [39] Therefore, it is this Court’s finding that the compromise is not at all in contravention of the National Land Code and remains a valid and enforceable agreement between the parties to the compromise. E. THERE IS NO REQUIREMENT OF A COMMITTEE OF INSPECTION [40] There is no necessity for this Court to go at extreme lengths over this erroneous contention brought forth by Yakin. In reliance of the cases of North Place Sdn Bhd v Equiticorp Holdings Ltd & Ors 27    [2013] 3 MLJ and Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761, it was erroneously submitted by Yakin that it is incumbent for the liquidators to form a Committee of Inspection (“COI”) before entering into the compromise. However, a simple and plain reading of both these cases would reveal that the requirement of a COI in these cases were deliberated not because it is a general requirement, but mainly because the setting up of the COI was ordered by the Court. Thus, the case was determined not on the mandatory necessity of setting up a COI, but instead on the adherence and compliance with a Consent Judgment ordered by the Court. Thus, these cases are clearly distinguishable from the present case. Thereto, it is this Court’s finding that the liquidators are not required to set up a COI before entering into the compromise. F. COURT’S DECISION [41] In view of all of the above, it is this Court’s finding that Yakin and LSB have ultimately failed to prove their case against the Notice of Motion (Enclosure 80). 28    [42] Consequently, this Court grants order-in-terms to Enclosure 80, for the liquidators to enter into the compromise between GPB, the bank, as well as Faithmont. On the issue of costs [43] Having heard the submissions from the learned counsels for the Liquidators, Ambank, Yakin and LSB, this Court hereby orders that the costs of this application in respect of the Liquidators shall be costs in the cause. This Court also orders Yakin and LSB to pay Ambank RM8000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 4th November, 2015 29    For the Applicant/ Liquidators - Messrs. Teh & Associates Dato’ K. Kirubakaran For the Ambank (Malaysia) Berhad/ - Messrs. Shook Lin & Bok Supporting Creditor Lau Kee Sern Lim Pey Tsyr For the Yakin Tenggara Sdn Bhd - Messrs S. Ravenesan (Unsecured Creditor) Wong Rhen Yen Ravenesan Sivanesan Y.L Chok For Lim Sue Beng (Contributory) - Messrs Jamie Wong Jamie Wong

Tika 2.6.0

24-562-05/2015

PLAINTIF TAN CHAI HUAT DEFENDAN 1. TAN CHUN HUI 2. TAN KUI

03/11/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0f16408d-1f24-4b96-9bae-f84a636c9ff6&Inline=true

DALAM MAHKAMAH MAJISTRET DI SHAH ALAM 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO.: 24-562-05/2015 Dalam Perkara Harta Pusaka TAN THEY (Si Mati) (No. K/P: 310119-71-5243) Dan Dalam Perkara Mahkamah Tinggi Malaya di Shah Alam Petisyen No. 32NCVC-228-05/2014 Dan Dalam Perkara Akta Probet dan Pentadbiran, 1959 Dan Dalam Perkara Seksyen 59 Akta Pemegang Amanah 1949 Dan Dalam Perkara Wasiat TAN THEY (Si Mati) (No. K/P: 310119-71-5243) ANTARA TAN CHAI HUAT …PLAINTIF DAN 1. TAN CHUN HUI 2. TAN KUI …DEFENDAN- DEFENDAN 2 ALASAN PENGHAKIMAN (Saman Pemula Terpinda- Kandungan 19) Permohonan di bawah seksyen 59(1) Akta Pemegang Amanah 1949 [1] Plaintif telah memfailkan Saman Pemula (Kandungan 1) pada 8.5.2015 dan Kandungan 1 ini kemudiannya telah dipinda atas kebenaran yang diberikan oleh Mahkamah pada 25.8.2015. Selaras dengan kebenaran tersebut, Saman Pemula Terpinda (Kandungan 19) telah difailkan oleh Plaintif pada 15.9.2015. Menurut tajuk perkara di Kandungan 19, Plaintif telah memfailkan permohonannya ini menurut seksyen 59 Akta Pemegang Amanah 1949 (Akta PA). Namun, penelitian kepada tajuk perkara, Akta Probet dan Pentadbiran 1959 (Akta Probet) juga telah juga dinyatakan tanpa merujuk kepada peruntukan spesifik di bawah Akta Probet yang Plaintif bersandar. [2] Permohonan Plaintif ini telah disokong oleh Afidavit Sokongan yang diikrarkan oleh Tan Chai Huat pada 8.5.2015 (Kandungan 2) dan juga afidavit-afidavit berikut: 3 i. Afidavit Tiada Bantahan yang diikrarkan oleh Tan Soon Loong pada 08.05.2015 (Kandungan 3); ii. Afidavit Tiada Bantahan yang diikrarkan oleh Tan Soon Lee pada 08.05.2015 (Kandungan 4); iii. Afidavit Tiada Bantahan yang diikrarkan oleh Tan Soon Hing pada 08.05.2015 (Kandungan 5); iv. Afidavit Tiada Bantahan yang diikrarkan oleh Tan Soon Seng pada 08.05.2015 (Kandungan 6); v. Afidavit Balasan Plaintif yang diikrarkan oleh Tan Chai Huat pada 06.07.2015 (Kandungan 9); vi. Afidavit Balasan (2) Plaintif yang diikrarkan oleh Tan Chai Huat pada 10.08.2015 (Kandungan 13) vii. Afidavit Balasan (3) Plaintif yang diikrarkan oleh Tan Chai Huat pada 10.08.2015 (Kandungan 14) 4 [3] Latar belakang kes yang mendorong Plaintif memfailkan permohonan ini adalah seperti berikut: 3.1 Plaintif (Tan Chai Huat) dan Defendan-Defendan (Tan Chun Hui dan Tan Kui) adalah adik-beradik kandung. Tan Chun Hui adalah kakak Plaintif, manakala Tan Kui adalah adik perempuan Plaintif. Bapa kepada Plaintif dan Defendan- Defendan bernama Tan They (“Si Mati”) telah meninggal dunia pada 9.3.2012. 3.2 Si Mati telah meninggalkan satu wasiat bertarikh 8.3.2009 (“wasiat tersebut” - Ekshibit “B”, Kandungan 2). 3.3 Adalah tidak dipertikaikan bahawa kandungan utama wasiat tersebut adalah seperti berikut: i. Defendan Pertama telah dilantik sebagai wasi atau Pentadbir wasiat Si Mati. 5 ii. Bahawa tujuh hartanah-hartanah yang disenaraikan di bawah adalah diserahkan kepada Tan Kui (Defendan Kedua) selaku pemegang amanah (trustee) untuk dipegang secara amanah dan untuk dipindahmilikkan kepada benefisiari-benefisiari, iaitu Plaintif bersama- sama dengan empat orang lagi anak lelakinya iaitu Tan Soon Hing (No. K/P: 840816-14-6259), Tan Soon Lee (No. K/P: 871010-56-5309), Tan Soon Loong (No. K/P: 860727-56-6081) dan Tan Soon Seng (No K/P: 951208- 14-6847) dalam bahagian yang sama (in equal shares) apabila Tan Soon Seng mencapai umur 25 tahun. a) Hartanah Pertama:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik PN 80351, Lot 2043, Pekan Simpang Tiga Ijok (dahulunya HS(D) 17575, PT 322 Pekan of Simpang Tiga Ijok), Daerah Kuala Selangor, Negeri Selangor (“Hartanah Pertama tersebut”) Tan Chai Huat 1/5 bahagian Tan Soon Hing 1/5 bahagian 6 Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian b) Hartanah Kedua:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik HS(M) 1126, PT 106, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor (“Hartanah Kedua tersebut”) Tan Chai Huat 1/5 bahagian Tan Soon Hing 1/5 bahagian Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian c) Hartanah Ketiga:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik HS(M) 671, Lot 1913, Tempat Kg Baru Ijok, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor (“Hartanah Ketiga tersebut”) Tan Chai Huat 1/5 bahagian Tan Soon Hing 1/5 bahagian Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian 7 d) Hartanah Keempat:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik HS(M) 670, Lot 1914, Tempat Kg Baru Ijok, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor (“Hartanah Keempat tersebut”) Tan Chai Huat 1/5 bahagian Tan Soon Hing 1/5 bahagian Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian e) Hartanah Kelima:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik HS(D) 23144, PT 314, Pekan Simpang Tiga Ijok, Daerah Kuala Selangor, Negeri Selangor (dahulunya sebahagian daripada Hartanah yang dipegang di bawah Hakmilik LM 218, Lot 1915, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor) (“Hartanah Kelima tersebut”) Tan Chai Huat 1/5 bahagian Tan Soon Hing 1/5 bahagian Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian 8 f) Hartanah Keenam:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik HS(D) 23145, PT 315, Pekan Simpang Tiga Ijok, Daerah Kuala Selangor, Negeri Selangor (dahulunya sebahagian daripada Hartanah yang dipegang di bawah Hakmilik LM 218, Lot 1915, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor) (“Hartanah Keenam tersebut”) Tan Chai Huat 1/5 bahagian Tan Soon Hing 1/5 bahagian Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian g) Hartanah Ketujuh:- Kesemua bahagian yang tidak dipecahkan dalam Hartanah yang dipegang di bawah Hakmilik HS(M) 672, Lot 1302, Tempat Kg Baru Ijok, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor dan beralamat pos No. 153, Kampung Baru Ijok, 45600 Batang Berjuntai, Selangor (termasuk sebuah rumah yang terletak atas Hartanah tersebut) (“Hartanah Ketujuh tersebut”) Tan Chai Huat 1/5 bahagian 9 Tan Soon Hing 1/5 bahagian Tan Soon Lee 1/5 bahagian Tan Soon Loong 1/5 bahagian Tan Soon Seng 1/5 bahagian (Ketujuh-tujuh hartanah di atas dirujuk sebagai “hartanah- hartanah tersebut”) iii. Walaupun Si Mati telah meninggalkan wasiat yang memberikan hartanah-hartanah tersebut kepada Plaintif dan anak-anak Plaintif (benefisiari lain), namun, hartanah-hartanah tersebut akan dipegang oleh Defendan Kedua sebagai pemegang amanah dan hanya boleh dipindahmilik kepada Plaintif dan benefisiari lain apabila Tan Soon Seng mencapai umur 25 tahun. Bahagian wasiat yang menyatakan sedemikian diperturunkan di sini: “I give my properties stated hereunder to TAN KUI (NRIC No. 560426-10-5862) (hereinafter referred to as “the Trustee”) as trustee for TAN CHAI HUAT (NRIC No. 550121-10-5711), TAN SOON HING (NRIC No. 840816-14-6259), TAN SOON LEE (NRIC No. 871010-56-5309), TAN SOON LOONG (NRIC No.860727-56-6081) and TAN SOON SENG (NRIC No. 951208- 10 14-6847) all of No. No. 153, Kampung Baru Ijok, 45620 Batang Berjuntai, Selangor Darul Ehsan (hereinafter referred to as “the Beneficiaries” collectively) to hold the properties on trust for the Beneficiaries in equal shares until TAN SOON SENG (NRIC No. 951208-14-6847) reaches the age of 25.” (Penekanan oleh Mahkamah ini) 3.4 Apabila Si Mati telah meninggal dunia dan berdasarkan wasiat tersebut, Defendan Pertama melalui Petisyen No. 32NCVC- 228-05/2014 yang difailkan di Mahkamah Tinggi Malaya di Shah Alam, telah memohon supaya suatu Geran Probet dikeluarkan kepadanya bagi mentadbir pesaka Si Mati. Geran Probet bertarikh 17.07.2014 telah dikeluarkan kepada Defendan Pertama seperti yang dieksibitkan di Eksibit “L”, Kandungan 2. 3.5 Plaintif telah mendakwa bahawa beliau tidak pernah dimaklumkan oleh Defendan Pertama yang Defendan Pertama telahpun mendapatkan Geran Probet bagi pentadbiran pesaka Si Mati. 11 3.6 Setelah Plaintif mengetahui bahawa Defendan Pertama telah dikeluarkan dengan Geran Probet, Plaintif dan anak-anak Plaintif (benefisiari lain) telah mengarahkan peguam mereka untuk menulis surat-surat bertarikh 24.12.2014 dan 09.01.2015 kepada Defendan Pertama dan meminta Defendan Pertama memohon kebenaran Mahkamah untuk memindahmilik hartanah-hartanah Si Mati kepada Plaintif dan benefisiari lain tanpa menunggu Tan Soon Seng mencapai umur 25. Di dalam surat-surat tersebut, Plaintif telah memaklumkan kepada Defendan Pertama alasan-alasan kenapa Plaintif dan benefisiari lain ingin berbuat demikian. Namun demikian, permintaan Plaintif dan benefisiari lain tidak mendapat respons dari Defendan Pertama. Atas keengganan Defendan Pertama berbuat apa yang diminta oleh Plaintif dan benefisiari lain, Plaintif telah memfailkan Saman Pemula ini bagi mendapatkan perintah-perintah Mahkamah seperti berikut: i. Bahawa Plaintif, TAN CHAI HUAT, salah seorang benefisiari harta pusaka TAN THEY (Si Mati) (No. K/P: 310119-71-5243), dibenarkan membuat permohonan ini; 12 ii. Bahawa Defendan, TAN CHUN HUI (550121-10-5746/4784222), selaku Pentadbir harta pusaka TAN THEY (Si Mati) (No. K/P: 310119-71- 5243), diperintahkan untuk melaksanakan dokumen-dokumen pindakmilik dan/atau penyerahhak hartanah-hartanah yang dimiliki oleh TAN THEY (Si Mati) (No. K/P: 310119-71-5243) selaras dengan Geran Suratkuasa Mentadbir 04.08.2014 dan wasiat TAN THEY (Si Mati) (No. K/P: 310119-71-5243) kepada benefisiari-benefisiari yang dinamakan di bawah ini tanpa menunggu TAN SOON SENG mencapai umur 25 tahun:- a) TAN CHAI HUAT (No. K/P: 550121-10-5711) b) TAN SOON HING (No. K/P: 840816-14-6259) c) TAN SOON LEE (No. K/P: 871010-56-5309) d) TAN SOON LOONG (No. K/P: 860727-56-6081) e) TAN SOON SENG (No K/P: 951208-14-6847) iii. Bahawa Defendan, TAN CHUN HUI (550121-10-5746/4784222), diperintahkan untuk melaksanakan dokumen-dokumen pindahmilik dan/atau penyerahhak Hartanah-hartanah di bawah ini berdasarkan wasiat TAN THEY (Si Mati) (No. K/P: 310119-71-5243) bagi tujuan memindahmilik dan/atau menyerahkan Hartanah Pertama tersebut, Hartanah Kedua tersebut, Hartanah Ketiga tersebut, Hartanah Keempat tersebut, Hartanah Kelima tersebut, Hartanah Keenam 13 tersebut dan Hartanah Ketujuh tersebut kepada benefisiari- benefisiari masing-masing dalam masa tiga puluh (30) hari dari tarikh perintah ini tanpa menunggu TAN SOON SENG mencapai umur 25 tahun. iv. Bahawa Defendan, TAN CHUN HUI (550121-10-5746/4784222), diperintahkan untuk melaksanakan dokumen-dokumen pindahmilik dan/atau penyerahhak selaku pentadbir harta pusaka Si Mati Hartanah yang dipegang di bawah Hakmilik HS(D) 22935, PT 342, Tempat Kg Baru Ijok, Mukim Ijok, Daerah Kuala Selangor, Negeri Selangor (“Hartanah Kelapan tersebut”) bagi tujuan memindahmilik dan/atau menyerahkan bahagian-bahagian yang tidak dipecahkan dalam Hartanah kepada benefisiari-benefisiari masing-masing dalam masa tiga puluh (30) hari dari tarikh perintah ini. v. Secara alternatif, sekiranya Defendan enggan dan/atau gagal mematuhi perenggan-perenggan di atas dalam masa yang ditetapkan, bahawa Plaintif dibenarkan dan diberikuasa untuk melaksanakan dokumen-dokumen berkenaan bagi pihak Defendan, termasuk tetapi tidak terhad kepada perlaksanaan borang pindahmilik, menyerahhak, dan lain-lain dokumen bagi tujuan pindahmilik Hartanah-Hartanah yang disebut diatas kepada TAN CHAI HUAT, TAN SOON HING, TAN SOON LEE, TAN SOON LOONG 14 & TAN SOON SENG berdasarkan bahagian yang disebutkan di dalam wasiat tersebut. [4] Perlu dinyatakan di sini bahawa pada masa pemfailan Kandungan 1, Plaintif telah hanya membawa tindakan terhadap Defendan Pertama sahaja. Plaintif telah diberi kebenaran untuk meminda Kandungan 1 bagi membawa tindakan terhadap Tan Kui sebagai Defendan Kedua. Kemudian daripada itu, Saman Pemula Terpinda (Kandungan 19) telah difailkan oleh Plaintif pada 15.9.2015. [5] Selepas daripada ini kedua-dua Tan Chun Hui dan Tan Kui akan dirujuk sebagai Defendan, namun ada kalanya mereka akan dirujuk mengikut susunan nama mereka dalam Kandungan 19. [6] Di dalam Kandungan 19 ini, Plaintif telah memohon suatu relif menurut seksyen 59(1) Akta PA yang pada dasarnya memohon kepada Mahkamah ini untuk menggunakan kuasa yang ada padanya untuk memberikan perintah untuk membenarkan supaya pengamanahan yang diamanahkan kepada Defendan Kedua ditamatkan atau diakhiri (end the trust) dan juga Mahkamah mengeluarkan perintah mengarahkan Defendan Pertama supaya 15 mengagihkan dan memindahmilik hartanah-hartanah tersebut terus kepada benefisiari-benefisiari tanpa perlu menunggu Tan Soon Seng mencapai umur 25 tahun. [7] Mahkamah ini juga mengambil maklum bahawa benefisiari lain iaitu Tan Soon Loong, Tan Soon Lee, Tan Soon Hing dan Tan Soon Seng telah memfailkan Afidavit Tiada Bantahan yang mereka tidak mempunyai bantahan terhadap permohonan bapa mereka. Afidavit- Afidavit Tiada Bantahan mereka, masing-masing di dalam Kandungan 3, Kandungan 4, Kandungan 5 dan Kandungan 6. [8] Daripada afidavit-afidavit yang difailkan oleh Defendan Pertama, Defendan telah menentang keras permohonan Plaintif atas alasan- alasan berikut: i. Plaintif telah silap dari segi undang-undang kerana telah memfaikan permohonan ini terhadap Defendan Pertama yang hanya merupakan pentadbir wasiat/ pesaka si mati dan bukanlah pemegang amanah sepertimana yang dinyatakan di dalam wasiat tersebut. 16 ii. Defendan mempunyai tugas dan tanggungjawab untuk melaksanakan niat dan hasrat Si Mati bahawa hartanah- hartanah tersebut diletakkan atas amanah ke atas Defendan dan hanya boleh dipindahmilik apabila benefisiari termuda, Tan Soon Seng telah mencapai umur 25 tahun. iii. Alasan-alasan yang ditimbulkan oleh Paintif dan benefisiari lain untuk pemindahmilikan hartanah-hartanah tersebut kepada mereka tanpa menunggu Tan Soon Seng telah mencapai umur 25 tahun adalah tidak munasabah. [9] Plaintif di dalam usahanya untuk menyakinkan Mahkamah ini untuk menggunakan kuasa yang diperuntukkan di bawah seksyen 59(1) Akta PA dengan memberikan perintah-perintah yang dipohonnya telah menghujahkan bahawa pengamanahan yang diletakkan ke atas Defendan Kedua bagi hartanah-hartanah tersebut hendaklah ditamatkan oleh Mahkamah tanpa keperluan menunggu Tan Soon Seng berumur 25 tahun kerana semua benefisiari di bawah wasiat tersebut telahpun cukup umur (di mana Tan Soon Seng telahpun 17 mencapai umur dewasa menurut seksyen 2 Akta Umur Dewasa 1971) dan benefisiari lain juga telah memberi persetujuan mereka supaya hartanah-hartanah tersebut dipindahmilik serta-merta atau secepat mungkin. Menurut Plaintif lagi di dalam Kandungan 3, 4, 5 dan 6, benefisiari lain telah memberikan alasan-alasan mereka menyokong dan tidak mempunyai bantahan atas permohonan. Bagi menyokong permohonannya, Plaintif dan benefisiari lain telah mendeposkan di dalam afidavit-afidavit mereka bahawa mereka di dalam kesempitan wang bagi meneruskan kehidupan dan amat memerlukan sumber kewangan samada untuk perbelanjaan hidup, perniagaan dan pembelian hartanah. [10] Adalah dihujahkan bagi pihak Plaintif bahawa dengan kesemua benefisiari yang telah mencapai umur dewasa (cukup umur) dan dengan alasan-alasan yang dikemukakan bahawa Plaintif dan benefisiari lain adalah di dalam keadaan yang terdesak memerlukan sumber kewangan bagi perbelanjaan hidup, perniagaan dan pembelian hartanah. Maka hartanah-hartanah tersebut yang telah diwasiatkan untuk mereka adalah merupakan hadiah Si Mati untuk dimanfaat oleh Plaintif dan benefisiari lain dengan secepat mungkin 18 atau serta-merta. Justeru, Plaintif dan benefisiari lain yang mempunyai kepentingan mutlak yang tidak boleh disangkal ke atas hartanah-hartanah tersebut tidak boleh dinafikan manfaat ke atas hartanah-hartanah tersebut. Oleh itu, pengagihan dan pemindahmilikan hartanah-hartanah tersebut kepada Plaintif dan benefisiari lain bagi mendapat manfaat daripadanya tidak perlu ditangguhkan sehingga Tan Soon Seng mencapai usia 25 tahun. [11] Bagi menyokong hujahannya, peguam Plaintif telah bergantung kuat kepada apa yang telah diputuskan di dalam kes SAUNDERS v VAUTIER (1841) 41 ER 482. Adalah dihujahkan juga oleh peguam Plaintif bahawa fakta di dalam kes di hadapan Mahkamah ini adalah lebih kurang sama dengan fakta kes di dalam SAUNDERS. [12] Fakta di dalam kes SAUNDERS secara ringkas adalah seperti berikut: Richard Wright (Si Mati RW) telah meninggalkan kesemua saham kepunyaannya di dalam syarikat East India (saham tersebut) kepada wasi dan pemegang amanah untuk dipegang sebagai amanah sehingga waris Si Mati RW bernama Daniel Wright Vautier (Daniel) mencapai umur 25 tahun. Apabila Daniel telah mencapai 19 umur 21 tahun dan mahu berkahwin serta ingin memulakan perniagaannya sendiri, Daniel telah memfailkan satu petisyen kepada Mahkamah untuk memohon perintah supaya wasi dan pemegang amanah memindahmilik saham tersebut kepadanya. Di dalam kes ini, Mahkamah telah membenarkan permohonan Daniel dan memberikan perintah yang dipohon. Lord Langdale MR memutuskan antara lain: “ I think the principle has been repeatedly acted upon ; and where a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest in the legacy, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge” [13] Peguam Plaintif telah juga membawa perhatian Mahkamah ini kepada beberapa kes lain yang telah menggunapakai keputusan kes Saunders yakni: i. Re GOSSLING. GOSSLING v. ELCOCK [1903] 1Ch. 448 20 ii. MARY DUNCAN WHARTON AND ELIZABETH WARWICK APPELLANTS v EDWARD MASTERMAN AND OTHERS RESPONDENTS [1895] A.C. 186. Keputusan House of Lords (Lord Herschell L.C.) di mukasurat 192 sehingga 193 telah menyatakan seperti berikut: “The testator, however, undoubtedly intended to postpone the enjoyment of his bounty by these beneficiaries until the death of the last annuitant. The Courts below have, notwithstanding this, determined that the beneficiaries are entitled to the immediate enjoyment of all that is not made by the will subject to the payment of the annuities. This is, to my mind, the only point of any difficulty. The Courts proceeded on the doctrine acted upon in Saunders v. Vautier 4 Beav. 115; Cr. & P. 240 which has been since often recognised. Wood V.C., in Gosling v. Gosling Joh. at p. 272., expounded the doctrine thus: "The principle of this Court has always been to recognise the right of all persons who attain the age of twenty-one to enter upon the absolute use and enjoyment of the property given to them by a will, notwithstanding any directions by the testator to the effect that they are not to enjoy it until a later age:- unless during the interval the property is given for the benefit of another. If the property is once theirs, it is useless 21 for the testator to attempt to impose any fetter upon their enjoyment of it in full so soon as they attain twenty-one. And upon that principle, unless there is in the will, or in some codicil to it, a clear indication of an intention on the part of the testator not only that his devisees are not to have the enjoyment of the property he has devised to them until they attain twenty- five, but that some other person is to have that enjoyment - or unless the property is so clearly taken away from the devised up to the time of their attaining twenty-five as to sees induce the Court to hold that as to the previous rents and profits there has been an intestacy - the Court does not hesitate to strike out of the will any direction that the devised shall not enjoy it in full until they attain the age of twenty-five years." The point seems, in the first instance, to have been rather assumed than decided. It was apparently regarded as a necessary consequence of the conclusion that a gift had vested, that the enjoyment of it must be immediate on the beneficiary becoming sui juris, and could not be postponed until a later date unless the testator had made some other destination of the income during the intervening period. It is needless to inquire whether the Courts might have given effect to the intention of the testator in such cases to postpone the enjoyment of his bounty to a time fixed by himself subsequent to the attainment by the objects of his bounty of their majority. The doctrine has been so long 22 settled and so often recognised that it would not be proper now to question it.” Lord Davey pula telah menyatakan dalam mukasurat 192 to 193 “…but according to the directions of the will, their enjoyment is postponed to the death of the survivor of the annuitants, and an accumulation is directed in the meantime. This being so, the principle of Saunders v. Vautier 4 Beav. 115; Cr. & P. 240 would at once be applicable if this were the case of a gift to an individual. That principle is this: that where there is an absolute vested gift made payable at a future event, [...] the Court holds that a legatee may put an end to an accumulation which is exclusively for his benefit. The principle is stated, as well as elsewhere, by Lord Hatherley in the passage from his judgment in Gosling v. Gosling Joh. at p. 272 which was read by Lindley L.J. in the Court of Appeal. There is no condition precedent to happen or to be performed in order to perfect the title of the legatees, and there is no other person who has any interest in the execution of the trust for accumulation, or who can complain of its non- execution. The reason for the rule has been variously stated. It may be observed, however, that the Court of Chancery always leant against the postponement of vesting or possession, or the imposition of restrictions on the enjoyment of an absolute vested interest. 23 [14] Peguam Plaintif juga telah menghujahkan bahawa prinsip yang diputuskan di dalam kes SAUNDERS v VAUTIER telah diterimapakai oleh mahkamah-mahkamah di Malaysia. Kes-kes yang dirujuk oleh peguam Plaintif adalah kes-kes berikut: i. IN RE ALSHAIKH ABDULLAH BIN ALI BIN AHMAD BIN ALSHAIKH ALI HARHARAH (DECEASED); SHAIKH SALIM BIN ABDULLAH BIN ALI BIN AHMAD BIN SHAIK ALI HARHARAH v SHAIKAH HOWDASH BINTE SALIM NASER LAHMADI [1950] 1 MLJ 221. ii. YEOH TIONG LAY & SONS HOLDINGS SDN. BHD. v. ANNAVI MOOKAN & ANOR. AND DEKOR PANEL EMAS SDN. BHD. (INTERVENER) [1994] 3 CLJ 265. iii. LIONG SEOW KENG & ORS v. HO SOON CHENG [2015] 3 CLJ 808. iv. PANCHANATH A/L RATNAVALE (SUING AS THE BENEFICIARY TO THE ESTATE OF RATNAVALE S/O MAHALINGAM @ MAHALINGAM RATNAVALE, DECEASED, UNDER WILL DATED 10 FEBRUARY 1971) v SANDRA SEGARA MAHALINGAM (SUED AS THE EXECUTOR AND TRUSTEE OF THE LAST WILL OF RATNAVALE S/O 24 MAHALINGAM @ MAHALINGAM RATNAVALE, DECEASED, UNDER WILL DATED 10 FEBRUARY 1971) & ORS [2012] MLJU 224 [15] Peguam Defendan pula telah merujuk Mahkamah ini kepada keputusan di dalam kes *Mohd Azli Abd Aziz v Datuk Ainon Marziah Wahi dan lain-lain yang telah membincangkan berkenaan penggunaan kuasa Mahkamah di bawah seksyen 59(1) Akta PA. Di dalam kes Mohd Azli ini, Mahkamah telah merujuk kepada kes Re New [1901] 2 Ch 534 yang telah memperkatakan istilah on an emergency. Romer L.J. telah menyatakan di muka surat 543 dan 545: "The principle seems to be this - that the Court may, on an emergency, do something not authorized by the trust. It has no general power to interfere with or disregard the trust; but there are cases where the Court has gone beyond the express provisions of the trust instrument - cases of emergency (emphasis added), cases not foreseen or provided by the author of the trust, where the circumstances require something should be done." *Penghakiman YA Lee Swee Seng, Pesuruhjaya Kehakiman (pada ketika itu) bertarikh 1.7.2010 di dalam Saman Pemula S 24-2352-2009 25 [16] Peguam Defendan juga telah merujuk kepada satu kes Mahkamah Tinggi Singapura iaitu kes British & Malayan Trustees Ltd v Abdul Jalil Bin Ahmad 7 Ors [1990] 1 LNS 158. Di dalam kes British & Malayan Trustees Ltd ini, Hakim Thean telah menyentuh tentang peruntukan seksyen 59 Akta Pemegang Amanah (Trustees Act Chap 337,1985 Ed) yang terpakai di Singapura dan berkata berikut: "However, the exercise by the court of this power (under section 59 of the Trustees Act) is limited by s 2(2) of the Act which provides: "The powers conferred by this Act on trustees are in addition to the powers conferred by the instrument, if any, creating the trust, but those powers, unless otherwise stated apply if and so far only as a contrary intention is not expressed in the instrument (emphasis added)... On the true constructionos cl 16, there is a contrary intention expressed in the instrument against a sale of the settled property, and the power in s 59 of the Trustees Act is therefore not available" [17] Kedua-dua peguam Plaintif telahpun mengemukakan hujahan- hujahan mereka dan telah mengemukakan kes-kes otoriti bagi 26 menyokong kes mereka. Namun di dalam hal ini, samada Mahkamah ini patut menerima pakai prinsip yang diputuskan di dalam kes Saunders ataupun prinsip yang diutarakan di dalam kes- kes yang dirujuk oeh peguam Defendan, Mahkamah ini terlebih dahulu meneliti apakah yang sebenarnya diperuntukkan oleh seksyen 59(1) Akta PA kerana Plaintif di dalam kes ini telah memohon relif bersandarkan kepada seksyen 59(1) PA iaitu sebagai orang yang mempunyai kepentingan di bawah suatu amanah sepertimana yang termaktub di bawah seksyen 59 (4) Akta PA. Seksyen 59(4) Akta PA ini berbunyi: “(4) Sesuatu permohonan kepada Mahkamah di bawah seksyen ini boleh dibuat oleh pemegang-pemegang amanah, atau oleh salah seorang daripada mereka, atau oleh mana-mana orang yang ada kepentingan benefisial di bawah amanah itu.” [18] Justeru, Plaintif telah bersandarkan permohonannya kepada kuasa budi bicara yang diperuntukkan kepada Mahkamah ini di dalam perkara-perkara pengurusan dan pentadbiran amanah oleh pemegang amanah bagi membuat perintah lain di bawah seksyen 59(1) Akta PA. 27 [19] Seksyen 59(1) Akta PA Akta, teks Bahasa Inggeris telah memperuntukkan berikut: Jurisdiction to make other Order Power of Court to authorize dealings with trust property 59. (1) Where in the management or administration of any property vested in trustees, any sale, lease, charge, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure, or other transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the Court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose…” (Penekanan oleh Mahkamah ini) [20] Manakala, peruntukan seksyen 59(1) Akta di dalam teks Bahasa Kebangsaan memperuntukkan seperti berikut: 28 59 Bidang kuasa membuat Perintah lain (1) Jika dalam mengurus dan mentadbirkan mana-mana harta yang terletakhak kepada pemegang amanah, apa-apa jualan, pajakan, gadaian, penyerahan, pelepasan atau pelupusan lain, atau apa-apa pembelian, pelaburan, pemerolehan, perbelanjaan, atau transaksi lain, adalah pada pendapat Mahkamah bermanfaat, tetapi yang demikian itu tidak dapat dikuatkuasakan oleh sebab tidak ada apa-apa kuasa bagi maksud itu diberi kepada pemegang amanah oleh suratcara amanah itu, jika ada, atau oleh undang-undang, Mahkamah boleh dengan perintah memberi kepada pemegang amanah, sama ada secara am atau dalam sesuatu hal tertentu, kuasa yang diperlukan bagi maksud itu, mengikut apa-apa terma, dan tertakluk kepada apa-apa peruntukan dan syarat, jika ada sebagaimana difikirkan patut oleh Mahkamah dan boleh mengarahkan cara bagaimana apa-apa wang yang dibenar untuk dibelanjakan, dan kos sesuatu transaksi itu akan dibayar atau ditanggung antara modal dan pendapatan. 29 [21] Bidang kuasa yang diberikan kepada Mahkamah di bawah seksyen 59(1) Akta PA ini di dalam teks Bahasa Inggeris dan Bahasa Kebangsaan perlu diberi penelitian. Di dalam teks Bahasa Inggeris perkataan yang digunakan adalah is in the opinion of the Court expedient, manakala teks Bahasa Kebangsaan menggunakan perkataan pada pendapat Mahkamah bermanfaat. [22] Di dalam kamus Istilah Undang-Undang, English-Malay, Sweet & Maxwell Asia 1998 istilah expedient telah diterjemahkan sebagai wajar atau sesuai. Di dalam Kamus Inggeris Melayu Dewan, An English-Malay Dictionary, expedient telah juga ditakrifkan sebagai: “expedience, expediency (fml) n 1. Appropriateness, kesesuaian, kewajaran; 2. the consideration of what is advantageous, kepentingan: political ~, kepentingan politik. expedient adj appropriate, wajar: he found it ~ not to tell them everthing, dia merasakan wajar jika tdk memberitahu mereka segala- galanya; n usaha: he will resort to any ~ to achieve his ends, dia akan melakukan apa sahaja usaha untuk mencapai maksudnya.” 30 [23] Berdasarkan perkataan yang digunakan bagi peruntukkan seksyen 59(1) Akta di dalam kedua-dua teks Bahasa Inggeris dan Bahasa Kebangsaan, adalah menjadi pandangan Mahkamah ini bahawa apabila Parlimen menggubal seksyen ini, adalah niat dan hasrat Parlimen untuk memberikan Mahkamah suatu bidang kuasa untuk membuat Perintah lain yakni memberikan apa-apa perintah lain kepada pemegang amanah (yang mana pemegang amanah di dalam pengurusan dan pentadbirannya adalah termasuk jualan, pajakan, gadaian, penyerahan, pelepasan atau pelupusan lain, atau apa-apa pembelian, pelaburan, pemerolehan, perbelanjaan, atau transaksi lain) dan apabila mana-mana urusan-urusan itu tidak boleh dikuatkuasakan oleh Pemegang Amanah kerana suratcara amanah tidak memberikan kuasa tersebut kepada Pemegang Amanah, maka Mahkamah diberikan kuasa untuk memberikan perintah kepada Pemegang Amanah sekiranya Mahkamah berpendapat urusan atau urusan-urusan itu sesuai dan wajar serta bermanfaat dilaksanakan di atas apa-apa terma atau syarat yang difikirkan patut oleh Mahkamah. 31 [24] Dalam erti kata lain, adalah menjadi pandangan Mahkamah ini bahawa kuasa yang diperuntukkan oleh undang-undang kepada Mahkamah ini adalah suatu kuasa budi bicara yang hanya boleh dilaksanakan di dalam keadaan atau situasi yang sesuai serta wajar dan bermanfaat atau memberi manfaat kepada benefisiari- benefisiari di bawah suatu pengamanahan. [25] Untuk pandangan Mahkamah di atas, Mahkamah ini suka merujuk kepada Yeoh Tiong Lay & Sons Holdings Sdn. Bhd yang telah dirujuk oleh peguam Plaintif yang menghujahkan bahawa prinsip kes Saunders telah diguna pakai oleh Mahkamah di dalam kes tersebut. Di dalam kes Yeoh Tiong Lay & Sons Holdings Sdn. Bhd ini, Mahadev Shanker, H (YA pada ketika itu) walaupun telah merujuk kepada prinsip kes Saunders, pada masa yang sama beliau juga telah membuat rujukan penting yang mana berkaitan kedudukan undang-undang amanah di Malaysia dengan merujuk kepada peruntukan yang termaktub di bawah Akta Pemegang Amanah 1949. YA Mahadev Shanker di muka surat 271 telah berkata seperti berikut: 32 “Under the rule in Saunders v. Vautier [1841] 4 Beav 115 if all the beneficiaries are sui juris and together entitled to the whole of the beneficial interest they can, everything else being equal, put an end to the trust and direct the trustees to hand over the trust property as they direct. (See Anson v. Potter [1879] 13 Ch D 141.Under the law of trusts and our Trustees Act 1949 as now constituted, it is the opinion of this Court that such a trust can only be put to an end, by a proper order of the High Court; which would be imperative if the trustees object. It is only after the trust has been terminated and the property transferred to the beneficiaries, that the legal and beneficial interests in the said land, would vest in the beneficiaries so as to give them a capacity to make an enforceable contract of sale.”.(Penekanan oleh Mahkamah ini) [26] Justeru itu, secara kesimpulan walaupun prinsip undang-undang mengenai amanah/pengamanahan adalah jelas, namun apabila sesuatu pihak samada benefisiari atau pun mana-mana pihak yang telah dinyatakan di bawah seksyen 59(4) Akta PA berhasrat untuk memohon untuk menamatkan pengamanahan atau to put trust to an end di bawah seksyen 59(1) Akta PA, maka kuasa budi bicara Mahkamah ini akan hanya boleh digunakan apabila ia berpendapat perintah itu sesuai dan wajar serta bermanfaat. 33 [27] Berbalik semula kepada kes di hadapan Mahkamah ini. Plaintif telah cuba meletakkan situasinya dengan situasi yang dihadapi oleh Daniel di dalam kes Saunders dan mengatakan bahawa pemutusan di dalam kes Saunders hendaklah digunapakai oleh Mahkamah ini memandangkan Plaintif dan benefisiari lain mempunyai kepentingan mutlak yang tidak boleh disangkal terhadap hartanah-hartanah tersebut dan berhak kepada hadiah yang dihasratkan oleh Si Mati di dalam wasiatnya dimanfaatkan oleh Plaintif dan benefisiari, maka pengagihan dan pemilikan mereka terhadap hartanah-hartanah dan tidak boleh atau tidak perlu ditangguhkan sehingga Tan Soon Seng telah mencapai umur 25 tahun. [28] Manakala peguam Defendan pula bersandarkan hujahan bahawa Defendan sebagai Pemegang Amanah mempunyai tanggungjawab atau obligasi untuk menunaikan niat dan hasrat Si Mati yang hartanah-hartanah tersebut hanya boleh diagihkan dan dipindahmilik kepada Plaintif dan benefisiari lain apabila Tan Soon Seng mencapai umur 25 tahun. Di samping itu, Defendan juga telah menghujahkan bahawa tidak wujud keadaan terdesak atau emergency di pihak Plaintif dan benefisiari lain di mana mereka (Plaintif dan benefisiari) 34 sebenarnya mempunyai kemampuan untuk meneruskan kehidupan mereka dan membiayai pendidikan Tan Soon Seng sehingga Tan Soon Seng mencapai umur 25 tahun. [29] Pembacaan undang-undang di dalam pemakaian peruntukan seksyen 59(1) Akta PA telahpun Mahkamah ini nyatakan sebentar tadi. [30] Plaintif di sini, sememangnya memohon Mahkamah ini mengeluarkan perintah-perintah yang dipohonnya di perenggan 1 hingga 5 kandungan 19 menurut seksyen 59(1) Akta PA. Maka persoalan yang perlu ditentukan oleh Mahkamah ini adalah; adakah Plaintif di dalam kes ini telah mengemukakan keterangan- keterangan yang membolehkan Mahkamah mencapai satu pandangan atau pendapat bahawa urusan yang dipohon untuk dilaksanakan oleh pemegang amanah iaitu Defendan adalah sesuatu sesuai dan wajar serta bermanfaat bagi Mahkamah ini menggunakan kuasa budi bicara dan mengeluarkan perintah- perintah yang dipohon oleh Plaintif. 35 [31] Samada perintah bagi urusan ini wajar dan sesuai serta bermanfaat Mahkamah perlu meneliti keterangan-keterangan yang ada di hadapan Mahkamah ini. Plaintif cuba menyamakan kedudukannya dengan kedudukan Daniel. Perlu dinyatakan, di dalam kes Daniel, pada masa Daniel memfailkan petisyennya, Daniel baru mencapai umur 21 tahun dan baharu sahaja hendak memulakan kehidupan berumahtangga dan memerlukan sumber kewangan untuk meneruskan kehidupannnya. Ini berbeza dengan kes di hadapan Mahkamah ini kerana semasa Si Mati membuat wasiat ini Tan Soon Seng berumur 14 tahun manakala Plaintif iaitu bapa Tan Soon Seng adalah seorang yang sangat dewasa berumur 53. Oleh itu Mahkamah ini bersetuju dengan hujahan peguam Defendan bahawa hasrat dan niat Si Mati semasa membuat wasiat ini perlu diberi pertimbangan oleh Mahkamah ini dengan meneliti keterangan- keterangan dokumentar yang telah dikemukakan. [32] Mahkamah ini bersependapat dengan peguam Defendan bahawa bahawa Si mati sememangnya berhasrat dan berniat untuk hanya memberikan hartanah-hartanah tersebut kepada Plaintif dan benefisiari lain sehingga Tan Soon Seng berumur 25 tahun. 36 Mahkamah ini berpandangan sedemikian kerana alasan-alasan berikut: i. Si Mati telah memberikan tanggungjawab kepada anak perempuannya Tan Kui yang berusia lebih muda daripada Plaintif untuk memegang amanah atas hartanah-hartanah tersebut sehingga anak saudara termuda Tan Kui, Tan Soon Seng mencapai umur 25 tahun. Bagi hartanah-hartanah tersebut Si Mati telah menyediakan wasiat dan telah secara spesifik menyatakan ketujuh-tujuh hartanah tersebut diamanahkan kepada Tan Kui. Perlu dinyatakan di sini bahawa Tan Kui adalah merupakan adik perempuan Plaintif dan emak saudara kepada benefisiari yang lain. Perbezaan umur antara Tan Kui dan Plaintif adalah cuma satu tahun sahaja di mana Tan Kui lahir pada tahun 1956, manakala Plaintif lahir pada tahun 1955. Pada masa Si Mati membuat wasiat tesebut pada tahun 2009, Tan Kui berumur 53 tahun sementara Plaintif telahpun berumur 54 tahun. Perbezaan umur kedua mereka hanya setahun dan kedudukan Tan Kui yang merupakan hanya seorang adik. Namun, Tan Kui telah diberi kepercayaan oleh bapanya Si Mati untuk memegang 37 amanah bagi pihak abang beliau walaupun Plaintif seorang yang dewasa berumur 54 tahun pada masa wasiat dibuat oleh Si Mati dan merupakan bapa kepada benefisiari lain. Secara logiknya Plaintiflah yang sepatutnya memikul tanggungjawab amanah untuk anak-anaknya. Namun, di dalam kes ini, Si Mati bukan sahaja telah memberikan tanggungjawab tersebut kepada Tan Kui yang lebih muda daripada Plaintif untuk menjalankan amanah anak-anak Plaintif tetapi juga memegang amanah untuk Plaintif juga. Daripada fakta ini, adalah sesuatu kesimpulan yang tidak dapat dielakkan bahawa memanglah menjadi niat dan hasrat Si Mati untuk memastikan bahawa hartanah-hartanah tersebut hanya boleh dipindahmilik kepada Plaintif dan anak-anaknya apabila Tan Soon Seng telah mencapai umur 25 tahun. ii. Di dalam wasiat telah juga dinyatakan di klausa 4 bahawa wang-wang di dalam tangan dan bank juga telah diletakkan di atas pemegang amanah dan hanya boleh dibahagikan sama rata kepada benefisiari-benefisiari apabila Tan Soon Seng mencapai umur 18 tahun. Klausa 4 wasiat yang berbunyi: 38 “4. Subject to the payment of my just debts, funeral and testamentary expenses and all estate duty payable (if any) in respect of my estate, i devise and bequeath my money in hand and in the banks wherever situated to the Beneficiaries in equal share provided that the Trustee shall hold the share of TAN SOON SENG (NRIC No: 951208-14-6847) until he reaches the age of 18.” Klausa 4 ini juga telah memberikan tanggungjawab kepada Tan Kui untuk memegang semua wang-wang di dalam tangan dan di dalam bank sehingga Tan Soon Seng berusia 18 tahun. Amanah ini telah dipertanggungjawabkan kepada Tan Kui dan bukan kepada Plaintif. Kepercayaan yang sama telah diberikan Si Mati terhadap semua wangnya untuk dipegang atas amanah oleh Tan Kui. Hasrat Si Mati ini jelas supaya tanggungjawab memegang wang di dalam bank dan di dalam tangan diletakkan ke atas bahu Tan Kui sehinggalah Tan Soon Seng berumur 18 tahun. iii. Si Mati sebelum meninggal dunia telahpun menyediakan peruntukan kewangan yang secukupnya untuk Plaintif dan benefisiari lain meneruskan kehidupan mereka sehingga Tan 39 Soon Seng berumur 25 tahun. Ini dapat dilihat kepada perkara-perkara berikut: (a) sebelum Si Mati meninggal dunia, Si Mati telah memberi wang tunai sebanyak RM160,000.00 kepada Defendan untuk simpanan yang mana wang tersebut telah disimpan dalam 4 akaun simpanan tetap di CIMB Bank Berhad atas nama Defendan dan Plaintif dan setiap satu akaun berjumlah RM40,000.00. (Sila lihat Eksibit D2, Kandungan 8). Plaintif telahpun mengeluarkan semua wang Si Mati sebanyak RM160,000.00 dari akaun simpanan tetap tersebut dan wang tersebut kini berada dalam pegangan Plaintif dan boleh digunakan sebagai wang perbelanjaan Plaintif; (b) sebelum meninggal dunia, Si Mati juga telah mengamanahkan kepada Defendan wang sebanyak RM185,583.10 sebagai pemegang amanah untuk digunakan sebagai wang pendidikan Tan Soon Seng. Wang tersebut telah disimpan dalam 3 akaun simpanan 40 tetap di Maybank. Menurut Defendan sehingga 26.3.2014 wang yang terakru di dalam akaun simpanan tetap tersebut adalah RM214,523.75. Daripada jumlah RM214,523.75 tersebut, sebanyak RM64,523.75 telah diberikan kepada Plaintif dalam bentuk tunai dan RM150,000.00 dalam bentuk cek atas nama Plaintif dan isterinya, Lim Ah Choo. (Sila lihat Eksibit D3 dan D4, Kandungan 8) (c) Plaintif juga masih terus menikmati semua hasil jualan buah kelapa sawit daripada semua hartanah-hartanah Si Mati semenjak Si Mati meninggal dunia yang mana keuntungan dari hasil jualan buah kelapa sawit yang diperolehi adalah jauh melebihi kos-kos perbelanjaan untuk menjaga ladang kelapa sawit tersebut; (d) hasil jualan buah kelapa sawit ini serta sumber-sumber kewangan mencukupi untuk menanggung Plaintif, isteri dan anaknya Tan Soon Seng sehingga Tan Soon Seng mencapai umur 25 tahun. 41 (e) Si Mati semasa hidupnya telah membuka satu akaun bank di negara China atas nama Tan Soon Loong di mana wang sebanyak Reminbi RMB300,000.00 telah dimasukkan dalam akaun tersebut dan wang tersebut kini dalam pegangan Tan Soon Loong. (f) Si Mati juga telah membeli sebuah kedai dan sebuah rumah di negara China yang didaftarkan dalam nama Tan Soon Lee dan Tan Soon Loong. Butir-butir mengenai hartanah-hartanah tersebut adalah dalam pengetahuan Tan Soon Lee dan Tan Soon Loong serta Plaintif. iv. Si Mati semasa hidupnya adalah seorang yang mempunyai hartanah-hartanah yang banyak. Semasa hidupnya, Si Mati telah memindahmilik kepada Plaintif dan membeli hartanah- hartanah dalam nama Plaintif yang semuanya berjumlah lebih kurang 30 ekar, termasuk hartanah HS (M) 392, Lot 4698, Mukim Rawang. Sekiranya Si Mati berhasrat untuk Plaintif dan 42 benefisiari lain mendapat manfaat serta merta terhadap hartanah-hartanah tersebut, Si Mati akan terus berbuat demikian seperti hartanah-hartanah lain yang telahpun dipindahkan ke atas nama Plaintif/benefisiari lain ataupun dibelikan atas nama Plaintif/benefisiari lain atau meletakkan nama Plaintif/benefisiari lain seperti yang telah dibuat Si Mati untuk hartanah-hartanah lain semasa Si Mati masih hidup. Bagi hartanah-hartanah tersebut tidak dibuat sedemikian oleh Si Mati. [33] Di samping itu, Mahkamah ini juga bersependapat dengan peguam Defendan bahawa Plaintif bukanlah di dalam keadaan kedesakan wang. Plaintif sememangnya mempunyai kemampuan yang cukup untuk menanggung hidupnya dan benefisiari lain. Plaintif mempunyai sebidang tanah pertanian yang dipegang di bawah HS(M) 392, Lot 4698, Mukim Rawang, Negeri Selangor yang telah dibeli oleh Si Mati dan didaftarkan dalam nama Plaintif walaupun kesemua harga belian tanah tersebut telah dibayar oleh Si Mati. Plaintif telah menjual hartanah ini untuk harga jualan lebih kurang RM1,600,000.00 pada tahun 2014. Plaintif juga mempunyai 3 43 bidang tanah miliknya sendiri di Batu Arang, Selangor. [34] Berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini bahawa perintah bagi urusan yang dipohon oleh Plaintif di dalam kes ini bukanlah satu urusan yang Mahkamah ini berpendapat ianya adalah satu keadaan yang sesuai dan wajar serta bermanfaat yang membolehkan Mahkamah ini menggunakan budibicaranya di bawah seksyen 59(1) Akta PA. [35] Mahkamah ini juga berpandangan bahawa percubaan Plaintif untuk membuktikan niat jahat mala fide di pihak Defendan Pertama dengan mengatakan bahawa Defendan menyembunyikan permohonan Defendan Pertama untuk Geran Probet dikeluarkan adalah sesuatu yang tidak berasas kerana tidak ada keterangan yang menunjukkan sedemikian. Begitu juga pengataan Plaintif di mana dikatakan bahawa Defendan telah membantah permohonan Plaintif untuk memberi tekanan kepada benefisiari-benefisiari supaya Defendan diberikan sesetengah hartanah Si Mati barulah beliau akan bersetuju untuk mempercepatkan pengagihan hartanah Si Mati. Pengataan ini telah tidak disokong oleh mana-mana 44 keterangan dokumentari dan merupakan satu pengataan yang tidak ada asasnya. [36] Mahkamah ini akan menyentuh pula isu yang ditimbulkan oleh Defendan berkaitan hartanah yang dikenali sebagai HS(D) 22935, PT 342, Tempat Kg Baru Ijok, Mukim Ijok, Daerah Kuala Selangor, Selangor (Hartanah HS(D) 22935 tersebut). [37] Peguam Defendan telah menghujahkan bahawa di dalam Saman Pemula Plaintif, relif yang dipohon Plaintif di perenggan 4 telah memohon supaya hartanah HS(D) 22935 tersebut dipindahmilik oleh Defendan kepada benefisiari-benefisiari yang dinamakan dalam perenggan 3 wasiat Si Mati, sedangkan hartanah HS(D) 22935 tersebut tiada di dalam senarai hartanah yang dinyatakan di dalam wasiat Si Mati. Fakta yang hartanah HS(D) 22935 tersebut tidak disenaraikan di dalam wasiat Si Mati telah juga diakui oleh Plaintif. [38] Peguam Defendan juga berhujah lagi bahawa wasiat Si Mati tidak mengandungi sebarang klausa residuari "residuary clause" yang membolehkan pentadbiran ke atas hartanah HS(D) 22935 tersebut 45 ini dilaksanakan oleh Defendan Pertama dengan pengeluaran Geran Probet tersebut. [39] Di dalam hal ini, Mahkamah ini telah membuat penelitian ke atas wasiat Si Mati dan bersetuju dengan peguam Defendan bahawa benar di dalam wasiat Si Mati tidak mengandungi klausa residuari bagi hartanah tersebut. [40] Justeru, adalah menjadi dapatan Mahkamah ini bahawa di dalam keadaan ini pesaka Si Mati adalah pesaka berwasiat (testate) yang tidak sepenuhnya tetapi adalah pesaka yang partially intestate. [41] Mahkamah ini bersetuju dengan hujahan peguam Defendan bahawa memandangkan hartanah HS(D) 22935 tersebut tidak tersenarai di dalam wasiat Si Mati, maka ianya tidak termasuk ruanglingkup pentadbiran Defendan sebagai pentadbir pesaka atas kuasa perwakilan melalui Geran Probet yang dikeluarkan melalui Petisyen No. 32NCVC-228-05/2014. Di dalam Geran Probet yang dikeluarkan jelas menunjukkan bahawa kuasa perwakilan yang dikeluarkan kepada Defendan Pertama adalah berasaskan kepada wasiat 46 terakhir Si Mati. Geran Probet yang telah dikeluarkan kepada Defendan tersebut adalah jelas bagi hartanah-hartanah yang disenaraikan di dalam wasiat Si Mati. Ini jelas dengan perkataan yang tertera pada Geran Probet tersebut: “BE IT KNOWN that at the date hereunder-written Last Will Testament (a copy whereof is hereunto annexed) of late of deceased TAN THEY [I/C. NO: 310119-71-5243] NO. 153, KAMPUNG BARU IJOK, 45620 BATANG BERJUNTAI, SELANGOR DARUL EHSAN who died on the 9th day MARCH, 2012 At HOSPITAL SUNGAI BULOH, SELANGOR DARUL EHSAN leaving property situate within the jurisdiction of this Court, was proved before this Court, and that Administration of all and singular the movable and immovable property of the deceased situate within the jurisdiction was granted by this Court to TAN CHUI HUI [I/C. NO: 550121-10-5746] NO. 14A, KAMPUNG BARU IJOK, 45600 BATANG BERJUNTAI, SELANGOR DARUL EHSAN Sole executor and executrix named in the said Will, he/she/they being first sworn well and faithfully to administer the same, by paying the just debts of the deceased and the legacies contained in his/her Will and to render a just and true account thereof whenever lawfully required.” (Penekanan oleh Mahkamah ini) 47 [42] Mahkamah ini berpandangan yang sama dengan peguam Defendan bahawa bagi pentadbiran hartanah HS(D) 22935 tersebut, suatu Surat Kuasa Mentadbir Dengan Wasiat ("Letters of Administration With Will Annexed") mestilah diperolehi daripada Mahkamah Tinggi terlebih dahulu dan selepas Surat Kuasa Mentadbir Dengan Wasiat dikeluarkan maka hartanah HS(D) 22935 tersebut akan dibahagikan mengikut undang-undang "intestacy" kepada semua waris yang berhak menerimanya. (Sila lihat: DAVID WEE ENG SIEW v. LIM LEAN SENG & ANOR [2014] 1 CLJ 299 Mahkamah Persekutuan memutuskan seperti berikut: “[21] Any failure to draft such residuary clause or a comprehensive residuary clause will cause the remainder of his property to pass by intestate succession, a result that may not be the desire of the testator. In other words, the residuary estate will pass to all the heirs at law as intestate property as stated earlier ie, in accordance with the Distribution Act 1958 (see Re Barne's Will Trusts [1972] 2 All ER 639).” [43] Atas alasan-alasan di atas permohonan Plaintif bagi perintah berkaitan hartanah HS(D) 22935 PT 342 tersebut tidak boleh dibenarkan oleh Mahkamah ini. 48 Alasan i: Permohonan Plaintif dibuat terhadap Pentadbir Pesaka dan pentadbir wasiat yang bukannya terhadap Pemegang Amanah iaitu Tan Kui [44] Alasan ini telah ditimbulkan oleh Defendan sebelum pindaan dibuat oleh Plaintif ke atas Kandungan 1nya. Alasan ini menjadi akademik apabila permohonan Plaintif untuk meminda Saman Pemula di dalam Kandungan 12 bagi tujuan memasukkan Tan Kui sebagai Defendan telah dibenarkan oleh Mahkamah pada 25.8.2015 dan atas kebenaran tersebut Kandungan 19 telah difailkan oleh Plaintif. [45] Berdasarkan alasan-alasan di atas, permohonan Plaintif di Kandungan 19 ditolak dengan kos dan Plaintif diperintahkan membayar kos sebanyak RM5000.00 kepada Defendan. .......................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 03 haribulan November 2015 49 Peguam Plaintif - Tetuan John Yong & Irene Song Encik John Y L Wong Peguam Defendan-Defendan - Tetuan S.R. Tan Cheng Lim & Tee Cik Raswandra

Tika 2.6.0

22-1245-2010

PLAINTIF 1. TALAM CORPORATION BERHAD 2. CONTINENTAL HEIGHTS DEVELOPMENT SDN BHD DEFENDAN 1. BANGKOK BANK BERHAD 2. RAJENDRAN PALANIAPPAN

22/10/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a244f264-03c2-44b5-aa7c-0b9635ff9dad&Inline=true

Microsoft Word - 22-1245-2010 Talam Corporation Berhad dan 1 lagi Lwn Bangkok Bank Berhad (GJ) 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUITS NO. 22-1245-2010 BETWEEN 1. TALAM CORPORATION BERHAD 2. CONTINENTAL HEIGHTS DEVELOPMENT SDN. BHD. …..PLAINTIFFS AND 1. BANGKOK BANK BERHAD 2. RAJENDRAN PALANIAPPAN …..DEFENDANTS GROUNDS OF JUDGMENT (After full trial) A. BACKGROUND FACTS [1] The present case in its purest essence is a very simple case that the Plaintiffs are claiming an alleged loss from the successful sale by a 2    charge/foreclosure action when a charged security was put on the auction block. However, this simple case is wrought with a convoluted narrative led by the Plaintiffs, especially in their attempt to draw an alleged nexus between an altogether foreign entity {referring to the 1st Plaintiff (Talam Corporation Berhad)} outside of the facilities agreement and even the charge encumbering the property involved. This Court sees the importance of defining each and every party’s interest and relations before delving further into the determination of the present case. This is especially important so as to accurately understand and segregate each party’s interest because although the Plaintiffs are mutual litigators in the present case, not necessarily the interest that they lead are one and the same. [2] In the simplest manner possible, the 1st Defendant {Bangkok Bank Berhad (“Bank”)} is a public limited company incorporated in Malaysia under the Companies Act 1965 with its principal activities including banking and banking-related financial services. The Bank shall also be referred to interchangeably as (“chargee”) and as and when it is necessary as the Bank for it at all times is also the chargee in the present case. 3    [3] The 2nd Defendant (Rajendran Palaniappan) is the former employee of the Bank holding the position of an Assistant Manager in the Risk Management Department until his resignation in September 2013. [4] The 1st Plaintiff (“Talam”) is a public limited company also locally incorporated in Malaysia. In a strict contractual sense, Talam is entirely foreign to the facilities agreement binding the Bank with its customer being granted facilities (“Keuro Leasing”) and is also entirely foreign to the charge documents executed between the Bank and the 2nd Plaintiff {Continental Heights Development Sdn Bhd (“CHDSB”)}. Although Talam claims beneficial interest in an array of tangents, it stands that the status quo is that Talam is and was never a party to the facilities agreement and the charge document binding the Bank and the 2nd Plaintiff. [5] The 2nd Plaintiff (“CHDSB”) is a private limited company locally incorporated in Malaysia having its nature in business as property development. 4    [6] Now, to visually illustrate the relationship between the above parties, and the ground in which this Court preliminarily deems Talam to be foreign, this Court draws the following Relationships Chart (Illustration 1). llustration 1 Bank/Chargee Keuro Leasing (Borrower) CHDSB/Chargor Cekap Mesra Sdn Bhd (Cekap Mesra) Maxisegar Sdn Bhd & Maxisegar Construction Sdn Bhd (Maxisegar) Talam (foreign) [7] The core facts of the present case in explaining the above illustration are simply the following. Grants facilities  3rd party charge over  property for the benefit  of Borrower  JV and Supplementary JV entered  between CHDSB and CMSB  Maxisegar is Majority Shareholder of  Cekap Mesra (50.05%)  Talam is a shareholder of  Maxisegar  5    Successful Foreclosure Proceedings [8] Following a line of Letters of Offer, the Bank has granted the Borrower (Keuro Leasing, who is not a party in the present dispute) certain banking facilities to which the Borrower have undisputedly defaulted. [9] CHDSB at the material time then (before the successful auction) was the owner and registered proprietor of the Danau Putra Land covering 134.23 acres of land held under Title Nos. HS(D) 2490 PT No.6253 (Plot D), HS(D) 2489 PT No. 6252 (Plot C) and a portion of HS(D) 2488 PT No. 6251 (Plot B) Mukim of Dengkil, District of Sepang, of the State of Selangor (herein collectively referred to as “properties”). CHDSB subsequently put one of the properties namely, HS (D) 2489 PT No. 6252 (PN 39252 Lot No. 14002 measuring approximately 74 acres) (“property”) as security for a third party charge to the Bank in favour of the Borrower. [10] Naturally, the Bank moved to foreclose the security and ultimately managed to auction off the land at a reserve price of 6    RM15,000,000.00 on 7.9.2010. Of course, there were a plethora of facts that ensued during the whole procession leading from the grant of the Order for Sale unto the Sale itself. However, in view of clarity and simplicity, this Court shall not divulge the entirety of the core facts in this part of the judgment and shall address those facts as and when the parts of this judgment necessitate the discussion of those facts. Challenge by CHDSB against the foreclosure action [11] During the hearing for Summons for Direction on 8.3.2010, CHDSB’s previous solicitors (Messrs Ricky Tan & Co) has informed the Court that CHDSB intends to reply to the Bank’s Affidavit exhibiting the TD Aziz Evaluation Report (“TD Aziz Report”). Consequently the hearing was adjourned to 1.4.2010. In the midst of the proceedings regarding the TD Aziz Report, CHDSB then filed its own Application by way of Summons in Chambers on 26.3.2010 in an attempt to challenge the foreclosure proceedings. The grounds of this Application includes, an allegation that there was improper service of the foreclosure papers, there was an impending settlement between 7    Menteri Besar Incorporated (“MBI”) and Talam in which one of the terms of settlement is to redeem the property from the bank. [12] However, surprisingly on 1.4.2010 CHDSB contras its own stance to challenge the TD Aziz Report (to which this Court preliminarily deems to be an abject failure to challenge) and instead expresses its intention to only pursue its Application for Summons in Chambers. [13] Verily unsurprisingly enough, upon the hearing of CHDSB’s Summons in Chambers on 24.9.2010 (which is after the auction was conducted), the learned YA Dato Zaleha binti Yusof has dismissed the Application in toto with costs of RM2,000.00. This resounding dismissal was further appealed by CHDSB to the Court of Appeal vide its Notice of Appeal dated 8.10.2010. The Court of Appeal dismissed CHDSB’s appeal with costs of RM5,000.00. [14] The reason in which this Court finds the above decisions and dismissals are unsurprising is simply for the reason that this Court from the outset is at the very least disillusioned and disenchanted by the convoluted contentions led by the Plaintiffs in the present case, in 8    a brazen attempt in an ultimately failing case. This Court shall explain this disillusionment further into this Judgment. [15] Now, this Court must highlight that up until this point, in succinct elaboration of the whole process of the foreclosure proceedings, there was not a single mention of Talam as a party. Talam remains completely a foreign entity disparate and segregated from the foreclosure. Talam was not a party, a non-issue and not even a consideration. Talam is completely disjointed with the Bank, absolutely lacks even a spec of nexus with the borrower and is ultimately a total alien and stranger to the facilities and the charge involving the property. Talam was not a consideration at all at the time the facilities were granted. Talam was not a consideration at all at the time of the default. Talam was not a consideration at all at the time of the commencement of the foreclosure. Talam was not at all a consideration upon the successful auction of the property. Save that indeed Talam was previously a corporate guarantor of the Borrower, but such guarantor – guarantee relationship does not remotely exist in the present case. 9    Talam’s alleged interest in the property and partisanship in the charge [16] Now, bearing in mind the previous preliminary conclusion that Talam is undoubtedly an alien and a stranger and foreign to the charge and facilities, this Court shall move on to at least summarize the disenchanting case that the CHDSB and Talam led in the present case. [17] CHDSB’s proprietary interest in the present case is very clear. It was the registered proprietor of the property and also the chargor in the third party charge. Thus, the proprietary interest of CHDSB can be derived from: i. Statutory rights under the National Land Code, Companies Act, Contracts Act and other statutes which may govern the relationship between the bank as chargee and CHDSB as the chargor. ii. Contractual rights derivative from the terms of the Charge Annexure dated 28.11.2005 (see Exhibit P7 of Bundle B). 10    iii. Any implied duties and/or obligations presupposed by the law of equity against a chargor and/or chargee. [18] However, it is the furiously contended interest of Talam which disillusioned this Court the most. As an alien and a stranger, foreign to the charge and facilities, the following are the tangents which Talam sought to argue its interest over the property: i. Vide the Settlement Agreement and Supplementary Settlement Agreement with MBI (“Settlement Agreement”) CHDSB has vested all its rights over the properties to Talam to allow Talam to dispose the Land in accordance with the Settlement Agreement; ii. The Defendants are estopped from denying Talam’s proprietary interest as they have allegedly conducted themselves in affirmation and acknowledgment to Talam’s interest; iii. In acknowledging Talam’s interest the bank owes a duty of care in torts and equity to cater to Talam’s interest; 11    iv. Talam claims proprietary interest as shareholder of Maxisegar who is the majority shareholder of Cekap Mesra, in which Cekap Mesra has entered into a Joint Venture Agreement (“JV”) and a Supplementary Joint Venture Agreement (“Supplementary JV”) with CHDSB, in which according to the Clauses 2.3, 2.6 and 2.9 of the Supplementary JV, CHDSB shall hold the property as a bare trustee for the benefit of Cekap Mesra. (This Court must highlight that the foreign Talam is not even a direct shareholder of Cekap Mesra. Talam is a separate entity who is merely a shareholder of another corporate entity (Maxisegar) which Maxisegar is a majority shareholder of Cekap Mesra) [19] On the aforesaid grounds, both Talam and CHDSB have sought the following remedies from this Court which inter alia, includes: (i) General damages to be calculated based on the 2nd Defendant’s conduct, through the 1st Defendant, of acting as if the public auction would not be proceeding on 7 September 12    2010 which prevented the Plaintiffs from redeeming the Property; (ii) An order that the Defendants pay the Plaintiffs, damages, in the amount of RM33,697,902.00 being the difference in the reserve price and the market value of the Property; and (iii) General damages for the Defendants’ breach of duty of care towards the Plaintiffs (collectively referred to as “Claim for Damages”) [20] Even before this Court can begin to discuss the proprietary rights of the Plaintiffs (particularly the foreign Talam), there a number of preliminaries must first be determined before the ensuing determinations can be set in motion. B. PRELIMINARIES Is the Plaintiffs’ action barred by res judicata? [21] This Court does not intend to deal with this issue at length. The parties’ clashing contention on this issue is succinctly on the application of the recent Federal Court decision in CIMB Investment 13    Bank Bhd (previously known as Commerce International Merchant Bankers Bhd) v Metroplex Holdings Sdn Bhd [2014] 6 MLJ. [22] The Defendants’ stance is simply that by virtue of the decision in the Metroplex case, the Federal Court has extended the application of the doctrine of res judicata notwithstanding the claim being a claim in rem or in personam. The Defendants contend that the Metroplex case has to an extent overruled the trite principle propounded in the Federal Court decision in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 with respect to the applicability of the doctrine of res judicata over proving “cause to contrary” against charge actions under section 256(3) of the National Land Code 1965 (NLC). The Defendants relied upon para. 28 of the Decision in Metroplex which held: “[28] For the above reasons, we answer the leave question in the affirmative and in the following terms: Issues pertaining and or relating to ‘cause to contrary’ could only be raised in the charge action. A chargor is therefore barred from bringing a fresh action against a charge, in order to raise issues which show a ‘cause to 14    contrary’, regardless of whether the chargor had or had not raised such issues at the stage of the chargee’s application for an order for sale of the charged property under s 256 of the National Land Code” [23] However, this Court humbly disagrees with this contention by the learned counsels for the Defendants. A comparative reading of the principle held in the Metroplex case (in its entirety) would reveal that the Federal Court in Metroplex case has in fact followed the decision in Low Lee Lian. It was decided in Low Lee Lian that: “If the chargor is unable to sustain his opposition to the making of an order for sale – a proceeding in rem – he may nevertheless sue the chargee in personam for breach upon the personal covenant or in equity for such relief as may be appropriate.” [24] The Federal Court in Metroplex has actively discussed and differentiated the bar of res judicata in case of an action in rem and in personam and this Court would highlight the conclusion in the 15    preceding paragraph leading up to the conclusion in para 29 which was relied upon by the Defendants: “Hence, the action…was not an action in personam but an action in rem and which could not be brought.” [25] Thus, preliminarily it is this Court’s decision that the Plaintiffs’ case here is not barred by the doctrine of res judicata. Is the unmarked ID36 Settlement Agreement admissible in Court? [26] Now, this Court shall turn to one of the most pivotal issue to be determined at this preliminary juncture. This Court must highlight that the Settlement Agreement (ID36) was not marked as an exhibit in the present case. And indeed, there are valid reasons behind the fact that the Court refused to mark ID36 as an exhibit. [27] This issue is verily pivotal in view of the fact that the Plaintiffs’ case voluminously depend on the operability and enforceability of the Settlement Agreement against the Defendants. It is simply the most 16    tangible avenue in which Talam intends to draw its far-fetched nexus as a foreigner to the charge. Gross confusion and failure to reconcile versions of the Settlement Agreement [28] Now, this Court must highlight from the outset, that the Plaintiffs have done close to nothing to reconcile and explain the gross differences of the versions which shall be discussed further down this judgment. In reading the Submissions in Reply of the Defendants, the Plaintiffs merely assert that ID36 tendered was an ‘Original’ even without attempting to address the gaping inconsistencies revealed by the learned counsel for the Defendants. [29] To the astonishment of this Court, there are altogether four (4) versions of the Settlement Agreement which had reached into the files of the present case in which even the Plaintiffs to the end of the trial completely fail to explain and justify the glaring discrepancies between the 4 versions put into Court. At best, the Plaintiffs merely attempted to explain the discrepancy between two of the versions 17    namely ID36 and ID14 but eschewed completely from the task to explain the discrepancy of ID36 with D77 and D85. For clarity in understanding these discrepancies, the following are the respective tendered versions of the Settlement Agreement, and a brief background of which these versions made its way into this Court which are ID14, ID36, D77, and D85) ID14: File Copy Version [30] ID14 was the initial file copy of the Settlement Agreement which the Plaintiffs relied upon BEFORE the Defendants requested for the Original Copy of the Settlement Agreement. This Court must highlight that as soon as this request was made, the Plaintiffs completely ceased to refer to ID14. [31] ID14 does not contain the utterly important three (3) endorsements (inclusive of CHDSB’s endorsement transferring all rights to the property to Talam) which all too conveniently appear in ID36 which is now alleged to be the original by the Plaintiffs. 18    [32] ID14 contains the share certificates in Appendix 5 which was not contained in Appendix 5 of ID36 So ultimately, comparative to ID36: a. ID14 does not have endorsements which are available in ID36; while b. ID36 does not have the share certificates which are available in ID14 ID36: Alleged Solicitor’s ‘Original’ Copy Version [33] Reiterating the above, the Plaintiffs were requested to produce the Original copy of the Settlement above by the Defendants. Now, it is utterly important to note that it was undisputed that the Plaintiffs have failed to find and produce their own ‘Original’ copy upon this request. 19    [34] Instead, the Plaintiffs purport to tender ID36 which was contended to be their previous Solicitor’s ‘Original’ Copy (alleged Original). [35] The differences between ID36 and ID14 are as explained earlier above in the heading for ID14. [36] It is utterly important that this Court is overwhelmed by the perplexing conduct of the Plaintiffs in losing such an integral document which would enormously affect its health as a business entity. The Settlement Agreement involves a sum of not merely millions but tens of millions of Ringgit which adds to the gravity and importance to safe keep the document. It is thoroughly perplexing that a litigant, who fiercely and ferociously guards its alleged interest in the property, would lose such an enormously important piece of document and evidence. D77: MBI’s Original Version 20    [37] D77 is simply MBI’s version of the Settlement Agreement which was exhibited in MBI’s previous Affidavit in respect of the Shah Alam High Court Originating Motion No.25-55-2011). [38] D77’s traits are similar as ID14. It does not contain the all-important endorsements and contains share certificate in Appendix 5. Plaintiffs’ failure in reconciliation and explanation on the discrepancies [39] However, the Plaintiffs’ attempt to explain the discrepancies above falls utterly flat. There are a plethora of grounds in which this Court has no hesitation at all to doubt the authenticity of ID36. This Court shall categorically address these grounds below: [40] With regard to the absence of the endorsements in ID14, the Plaintiff vide its witness PW-1(Chua Kim Lan - 1st Plaintiff’s Executive Director), explains that the reason that the endorsements are not included in the file copy is because the endorsements were only executed after the signing of the Settlement Agreement. The 21    Endorsements were included post-signing but was included prior to the stamping of the Agreement. The endorsements were forwarded to their solicitors before stamping but however, their solicitors never included the endorsements into the file copy ID14. [41] Meanwhile, with regard to the absence of the share certificate in ID36 (which is contained in ID14 and D77), PW-1 explains that the share certificate which was attached in ID14 was removed from ID36 for safekeeping. Gross and total contradiction with Plaintiffs’ own witness (PW-5) [42] PW-5 (Ganesheraj Selvarajah – a partner in Messrs Jayadeep,Hari & Jamil) was the previous solicitor who dealt with the signing and the execution of the Settlement Agreement. His testimony directly contradicts every single one of PW-1’s attempt to reconcile the differences of the versions. Contradiction with regard to the endorsements 22    [43] Against PW-1’s contention it was PW-5’s evidence and admission that he is absolutely clueless as to the fact that ID14 and D77 (being MBI’s version of the Settlement Agreement) would leave out the endorsements simply for the reason that any endorsements were forwarded and inserted into all the original copies of the Settlement Agreement before the Settlement Agreements were stamped. It was also his admission that there are no other versions of the Settlement Agreement which was forwarded to Kumpulan Darul Ehsan Berhad (KDEB) and MBI except the stamped Settlement Agreements. [44] Hence, these two admissions literally rendered the explanation regarding the absence of endorsements of ID14 and D77 (which is MBI’s Original Copy) improbable by any stretch of the legal and factual imagination. ID14 and D77 and ID36 were executed, inserted all endorsements, and stamped at the same time. If there is any deduction to be drawn here is that it is more probable than not that the versions of the Settlement Agreement without the Endorsements are the Original versions of the Settlement Agreement. 23    The bafflements revealed from the contradictions above are these: a. ID14 and D77 could not have left out the endorsements if they were the same originals which were stamped together and sent to MBI and KDEB. Thus, ID36 could not in any extent of probability be an authentic Original Copy of the Settlement Agreement, since the other originals did not contain the same endorsements. b. It remains unexplained that two alleged ‘originals’ particularly ID36 (Solicitor’s Original) and D77 (MBI’s Original), executed at the same time, inserted with the same endorsements, dealt with by the same solicitors, stamped at the same time are vastly different in its contents (particularly the crucial endorsement). [45] This Court could not help to feel that it is far too convenient for the Plaintiff that the unexplained discrepancy that arose between the Originals just by sheer ‘coincidence’ happens to be the endorsement 24    of rights by CHDSB which remains to be an imperative piece of document which plays to the Plaintiffs’ favour. Contradiction with regard to the Share Certificate [46] This next contradiction is also another contention which totally disillusioned this Court on the veracity of the Plaintiffs’ case evidence regarding the absence of the Share Certificate in Appendix 5 of ID36. [47] PW-1’s evidence on the absence is that the Share Certificate in ID36 was removed for safekeeping. From this testimony it is reasonable to infer that PW-1 testifies that what was attached on ID36 is the share certificate itself. However, in total contradiction with PW-1’s assertion PW-5, the solicitor who dealt with the Settlement Agreement instead testified that at all times the Agreements were attached with the photocopies of the share certificate. [48] Henceforth, the explanation afforded by the Plaintiffs does not hold water here. The solicitor handling the Settlement Agreement itself testified that the share certificates attached were mere photocopies. Thus, there are no conceivable reasons behind the removal of the 25    photocopy from ID36 as it was merely a photocopy, and there is really no reason at all to remove the same for safe keeping. [49] This Court must also highlight that it is far too much of a coincidence that the three endorsements were suddenly executed without any contingent clauses requiring such execution of endorsements. The execution of the three endorsements completely derails from the general mechanism of the Settlement Agreement in the requirement for endorsements. As correctly pointed out by the Defendants, all other endorsements (besides the three contended endorsements) were executed contingent or in relation to a specific clause under the Settlement Agreement requiring the execution of such endorsement. However, such clauses in relation to the three contended endorsements were nowhere to be found in the Settlement Agreement, thus adding further shade of improbability over the Plaintiffs’ case in this regard. [50] In light of the above unexplained baffling and perplexing discrepancies, this Court has no reservation to discredit the authenticity of ID36 as a purported Original Copy of the Settlement 26    Agreement and therefore deems ID36 completely inadmissible in the present case. [51] This Court takes guidance from section 62, Explanation 2 of the Evidence Act 1950 as clearly, the numerous purported originals do not fall under Explanation 1 as they are not executed in several parts or in counterparts. The purported originals falls squarely under Explanation 2 as they were printed, executed and stamped together: “Explanation 2 – Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest;…” [52] The learned counsels for the Defendants have accurately referred to the immensely narrow threshold of discrepancy allowed in the documents under Explanation 2 in referring to Sarkar on Evidence 15th Edition 1999 with regard to documents made by uniform process: 27    “The case of a type-machine (the ordinary printing-press or its equivalent) is different. Here the only variances that can occur between different numbers reproduced by printing must arise from a change in the type or from the exhaustion of the ink. But the ordinary printing-press is now self-feeding in respect of ink; and on the supposition that the type is not intentionally altered, all the reproductions from the same setting of type may be regarded for practical purposes as identical and equivalent” [53] Clearly in the present case the purported originals greatly differ more than just its type or font. Thus, there is significant improbability of ID36 to be considered as primary evidence as it clearly fails in the allowable threshold of discrepancy. Thus, there is a serious doubt to the probability of ID36 to be an Original copy of the Settlement Agreement. [54] Therefore, since the Settlement Agreement relied on by the Plaintiffs is not to any extent an original , the Settlement Agreement fails to fulfil the criteria of admissibility of documentary evidence under section 73A (1) of the Evidence Act 1950. {See also Allied Bank 28    (Malaysia) Bhd v Yau Jiok Hua [1998] 6 MLJ; Allied Bank (M) Sdn Bhd v Yau Jiok Hua [2006] 5 MLJ 145 (CA)} [55] Naturally then, in line with the trite principle decided by Abdoolcader J in the case of Public Prosecutor v Datuk Haji Harun Idris & Ors [1977] 1 MLJ 180, this Court shall totally disregard the Settlement Agreement in totality in the determination of the present case. Simply put, ID36 is utterly and ultimately inadmissible. [56] Even if the MBI Settlement is admissible, it still remains that it has no bearing at all in the present case. The Bank is not a party and not privy to the Settlement Agreement. The Settlement Agreement is not enforceable against the Bank to defeat its statutory right to foreclose the property. [57] It is trite and true that no party(ies) to a contract may impose the contract’s obligations against a third party non-partisan to the contract and no third party stranger to the contract can enforce the terms of a contract in which it is not privy to. (See: i. Kepong Prospecting Ltd 29    & Ors v Schmidt [1968] 1 MLJ 170, ii. The Golf Cheque Book Sdn Bhd & Anor v Nilai Springs Bhd [2006] 1 CLJ 259). [58] The facts of the present case beg for no lengthy discussion on this matter. It is undisputed that the signatories of the Settlement Agreement is only MBI and Talam and none others. It was even admitted by PW-1 that the only contractual relations involving the Bank is only the facilities agreement between the Bank and Keuro Leasing: “OMK Now do you agree with me that the only contractual relationship that exists in this situation that we are in, is the contractual relationship between the 1st Defendant and Keuro Leasing, in respect of the loans related to it? CHUA Yes” C. TALAM’S TOTAL LACK OF ACTUAL, EQUITABLE, AND BENEFICIAL INTEREST OVER THE PROPERTY 30    [59] Categorically, Talam claims beneficial interest over the property on numerous suppositions. This Court shall now proceed to categorically address all these suppositions by the Plaintiffs. Talam’s alleged beneficial interest vide CHDSB’s bare trust to the benefit of Cekap Mesra [60] Even the heading itself sounds incredulous and dubious considering the distant nexus of the foreign Talam with Cekap Mesra. Adding salt to the wound, Talam is not even the direct shareholder of Cekap Mesra. Talam is merely the shareholder of another company, Maxisegar who happens to be the majority shareholder of Cekap Mesra. [61] Now, even before the Court even delved into the nexus vide the alleged bare trust created vide the Supplementary JV between CHDSB and Cekap Mesra, this Court must emphasize that in actuality, the existence of a bare trust is really a moot point and bears no significance with Talam’s total lack of beneficial interest. This is simply for the reason that it is already trite as a time-tested rule of law 31    that the effect of incorporation dictates that a body corporate and its assets are totally separate and distinct from its shareholders. Thus, in essence even if there exist a bare trust between CHDSB and Cekap Mesra, Talam still cannot claim any degree of rights (be it beneficial or actual rights) over the assets of Cekap Mesra. What more considering that Talam is not even the direct shareholder of Cekap Mesra. [62] For the sake of clarity on Talam’s total lack of beneficial rights, this Court firstly refers to the landmark decision of the English Court of Appeal in Macaura v Northern Assurance Co. Ltd & Ors [1925] AC 619: “Now, no shareholder has any right to any item of property owned by the company, for he has no legal or equitable interest therein. He is entitled to a share in the profits while the company continues to carry on business and a share in the distribution of the surplus assets when the company is wound up.” [63] Clearly here, that no shareholder has any rights over the company’s assets right from the moment the company was incorporated right until the company meets its demise. 32    [64] The Defendants also appropriately point out that the same doctrine of separation of entities even extends to the loss of a subsidiary company and that a parent company does not have the necessary standing to commence an action for the loss of its subsidiary company and the proper plaintiff should be the subsidiary suffering the personal loss. (See Barings Plc (In liquidation) & Anor v Coopers & Lybrand (A Firm) & Ors [2002] P.N. 16) [65] Even in the local chapter it has already been decided by the Court of Appeal in the case of Ngan & Ngan Holdings & Anor v Central Mercantile Corp (M) Sdn Bhd [2010] 1 MLJ 822 that in view of the fact that a holding company does not hold 100% shares of its subsidiary while the remainder of shareholding was held by third parties, the holding company cannot claim rights whatsoever over the subsidiary’s assets. The Court of Appeal concludes: “The plaintiff company is the registered proprietor of the said property. Although WTK is a shareholder of the plaintiff company, this does not give WTK the right to deal with the property of the plaintiff company, let alone to give the plaintiff’s property away. The plaintiff as a company as a company duly incorporated under the 33    Companies Act 1965, is a separate legal entity from its shareholders…”(emphasis added) [66] By way of incorporation of the holding company and the separate incorporation of the subsidiary company, Talam cannot now contra on its own pursuit and preference of separation of entities (through the medium of corporations) and claim otherwise as and when it is opportune and preferable to the holding company. (See Tate Access Floors Inc & Anor v Boswell & Ors [1991] Ch. 512) Further proof of separation vide the Charge Annexure executed by CHDSB [67] Adding more proof to the facade set up by the Plaintiffs, this Court refers to the Charge Annexure executed by CHDSB dated 28.11.2005. Section 4.01 and 4.02 of the Charge Annexure clearly stipulates that CHDSB (as chargor) is the only party holding beneficial and/or actual ownership of the property so charged. The sections are reproduced here for the sake of convenience: “Section 4.01 REPRESENTATIONS AND WARRANTIES 34    The Chargor hereby represents and warrants to the Lender as follows:- … (g) that the Chargor is the beneficial owner or has good and valid title to all their assets … Section 4.02 TRUTH AND CORRECTNESS OR REPRESENTATIONS AND WARRANTIES (a) The chargor acknowledges that the Lender has accepted this Charge and on the basis of, and in full reliance upon, the aforesaid representations and warranties, which will be correct and complied upon…” [68] PW-1 and PW-3 (Ng Lai Tin – former Senior Vice President 1 & Director of Keuro Leasing) in their evidence brazenly testified that the charge annexure is inaccurate owing to the fact that the annexure is a merely standard document. This Court stresses that no signatory of any contract can feign ignorance to whatever he has covenanted in the contract. (See Serangoon Garden Estate Ltd v Marian Chye [1959] 1 MLJ 113) 35    [69] Alluding to the sections above, unless CHDSB owns up to the beneficial and actual ownership of the property, then CHDSB’s conduct in making the above representations in Sections 4.01 and 4.02 is akin to a misrepresentation against the bank. Thus, again further proving that Talam has no beneficial interest over the property whatsoever. In fact, such brazen testimony of PW-1 and PW-3 go adversely against the veracity of their evidence. PW-3 cannot simply state that the Charge Annexure signed is a standard charge document which does not reflect the real relationship of the parties. It begs this Court to question the credibility of the witnesses’ testimony considering the fact that they are not simple laymen, and the charge involves a massive amount of land and facilities. Absence of Bare Trust [70] This Court does not intend to discuss this contention at length owing to the earlier finding that this contention is mostly moot and a non- issue. However, this Court must highlight that even this tangent of argument by the Plaintiffs ultimately fails as the Plaintiffs have failed to fulfil all the elements of a bare trust. 36    [71] Simply put, in order to prove the existence of a bare trust, it must be proven that 1) the purchase price has been paid in full and 2) the vendor/trustee must give to the purchaser a duly executed valid memorandum of transfer. (See Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12) [72] It is patently clear from the testimony of PW-1 that it was admitted that the Plaintiffs do not have any proof of such payment of purchase price was ever made by Cekap Mesra or any other company on behalf of Cekap Mesra. (See Notes Of Evidence (“NOE”) on 9.12.2014 at pages 4,14, and 15). [73] It was also admitted that no such memorandum of transfer was ever executed. (See NOE on 8.12.2014 at page 18) [74] It is this Court’s finding that CHDSB does not hold the property on bare trust for the benefit of Cekap Mesra. Naturally flowing from this fact, there is no beneficial interest that Talam can claim to begin with arising from Cekap Mesra. 37    Non-compliance of section 132C(1)(b) of the Companies Act 1965 [75] This is also another non-issue owing to the inadmissibility of ID36 as the Settlement Agreement. However, it is worth noting that that since ID36 is inadmissible, the entirety of the Settlement Agreement in whatever version shall be deemed null and void on the ground that the inadmissibility of CHDSB’s endorsement deems the Settlement Agreement to be in contravention of the condition precedent under section 132C(1)(b) of the Companies Act 1965. The section reads: “Section 132C. Approval of company required for disposal by directors of company’s undertaking or property (1) Notwithstanding anything in the memorandum or articles of association of company, the directors shall not carry into effect any arrangement or transaction for- (a) the acquisition of an undertaking or property of a substantial value; or 38    (b) the disposal of a substantial portion of the company’s undertaking or property Unless the arrangement or transaction has been approved by the company in a general meeting” [76] Thus, since CHDSB’s endorsement cannot be proven in the present case, it remains that the Settlement Agreement is in total contravention of mandatory provision above and should be deemed void and unenforceable. (See Tan Chee Hoe & Sons Sdn Bhd v Code Focus Sdn Bhd [2014] 3 CLJ 141). Inapplicability of the Equity of Redemption [77] Another tangent in which Talam purports to prove its beneficial interest is to prove that Talam is a party with an interest under the equity of redemption. In simple terms, based on the equity of redemption, Talam is allegedly within the realm of parties who may be affected from the properties’ loss of value upon its sale. The Plaintiffs refer to the case of Burgess v Auger and another [1988] 2 BCLC 478. 39    [78] On a preliminary note this Court would at this early juncture dismiss this contention as this additional cause of action was not pleaded in the Plaintiffs’ Statement of Claim. The Plaintiffs have particularized the rights in equity that the Plaintiffs allege to have and nowhere was there any mention of an action for the equity of redemption. Thus, on a preliminary note this Court has no hesitation dismiss this contention by the Plaintiffs. (See Janagi v Ong Boon Kiat [1971] 2 MLJ 196) [79] On another note, this Court lauds the bold (but ultimately failing) preposition by the Plaintiffs but also loathes the same preposition owing to the fact that the Plaintiffs do not even have the courtesy to even explain or even attempt to distinguish the decision of our own Supreme Court in Malayan United Finance v Tay Lay Soon [1991] which in plain words has decided that the equity of redemption does not apply in Malaysia. It is appalling to think that the learned counsel for the Plaintiffs won’t even address this authority and bring it to the knowledge of the Court. It is akin to submitting into Court outdated and inapplicable law. The Supreme Court has already decided that: 40    “The equity of redemption and discharge of a charge are poles apart… It certainly would avoid confusion if the term equity of redemption should not be used at all in dealing with a charge under the Code because in other jurisdictions, besides England, it conveys an entirely different idea… ‘Equity of Redemption’ is a misnomer but persistence in its use is not a matter of law but of habit in Australia and in Malaysia it does not exist at all, either in the sense as understood in English law or in Australia… To speak of the equity of redemption or the like of it in our situation under the Land Code is clearly technically and legally incorrect. The term so used in relation to a charge is not only a misnomer but nonsensical”. (emphasis added) [80] Even assuming that this Court would for even a microsecond accept and apply the doctrine of equity in redemption (which this Court vehemently does not), any interest under redemption purported to be drawn by the Plaintiffs is again, terribly distant and unreasonable. Going by the authority relied upon which is the Burgess Case. The 41    interest in equity in redemption was defined as an interest which may be directly affected from the property’s supposed loss of value. And in the Burgess case, this interest in equity of redemption was given to a guarantor to the mortgage in the mortgagor-mortgagee relationship. [81] Now in the Burgess case, it seems that the prescription of such interest must strictly cover persons or interests which are verily close in proximity and not a stranger to the mortgage. A guarantor is not a stranger to the mortgage. A guarantor is a variable and a consideration that the mortgagee takes into account in deciding whether or not to grant the facilities. It is easier to draw such foresee ability of a guarantor’s interest compared to Talam’s foreign position. [82] However, comparing the nexus of a guarantor to a charge to the nexus of Talam, who is not a guarantor and not even named in the Charge Document or was not even a concern or considered in the granting of the facilities to begin with, there are no conceivable likenesses between the foreign Talam and a guarantor to a charge or mortgage. 42    [83] If the Court were to ever agree with this contention, then the consideration and duty of the bank to third parties and persons outside of the statutory and contractual relationship of the charge would be limitless and ultimately incredulous. It is erroneous that a financial institution in putting the nation’s economy in motion would have to cater to so many interests near and far, close and foreign, partisan and non-partisan to the facilities and charge agreements and the statute. This Court is not prepared to warrant, and in fact, the facts of the present case are far from warranting such a sweeping supposition of interest to Talam. Talam cannot put itself in the shoes of the chargor, CHDSB [84] A charge is statutorily governed and contractually governed. It is incredulous to draw Talam a non-partisan to the charge to be under the statutory and contractual umbrella when Talam is foreign to the charge document and consequently foreign to the statutory provision of the NLC. 43    Thus, it is this Court’s decision that Talam to any extent whatsoever does not hold any rights over the property. D. ANALYSIS OF THE PARTIES’ CONDUCTS [85] The Plaintiffs have at extreme lengths contended on certain conducts of the Defendants which in turn, results in the following alleged consequences in law: a. The bank should be estopped from denying the operability and enforceability of the Settlement Agreement; b. The bank should be estopped from denying that Talam has beneficial interest to deal with the land; c. The bank should be estopped from denying that it owes a duty of care against Talam; and 44    d. The conducts of the bank raise a Legitimate Expectation against the Plaintiffs that the Defendants acknowledge and affirm the Settlement Agreement; [86] This Court believes that a repetitive discussion of the conducts in different aspects of the laws contended would be too redundant, as the analysis over the conducts to a certain extent remains the same. Thus, this Court shall address the purported legal consequences of these conducts separately and directly apply the laws contended against these conducts. However, it is imperative for the Court to be minded of the laws submitted before going in-depth with the analysis, application and conclusion. Law on estoppel [87] It is to no surprise of the Court that the Plaintiffs will refer to the landmark decision by the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 which the Federal Court has succinctly discuss the evolution of the law on estoppel in analysing the conducts 45    of parties. The Federal Court has referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) 46    (See also i. Affin Bank Berhad v Mohd Kassim Ibrahim [2013] 1 CLJ 465; ii. Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401) Law on Duty of Care [88] Now, there is very little novelty in the Plaintiffs’ case in attempting to cast the arm of duty to cover Talam as a ‘neighbour’ to the Bank. Of course references were made to the landmark English decision in Caparo Industries Plc v Dickman [1990] 2 AC 605 and also the case of Donoghue v Setevenson, [1932] A.C 562 H.L. (Sc) [89] Nevertheless, the Plaintiffs’ submission in extending the duty of care over the foreign and stranger Talam remains a novelty. In attempting to prove this novel supposition of duty of care, the Plaintiffs have at length referred to a plethora of authorities to first urge this Court to have an ‘open-ended approach’ in consideration of their submissions. It is the Plaintiffs’ submission that this Court should remain open in defining new relationships to be within the proximity of the duty of care. (See: i. Majlis Perbandaran Ampang Jaya v 47    Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1, ii.Loh Chiak Eong & Anor v Lok Kok Beng & Ors [2012] 9 CLJ 699). [90] However, more proximate to the facts in the present case, it is the Plaintiffs’ contention that mere knowledge of the identity of persons may be a test of proximity. The Plaintiffs relied upon the case of Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520. [91] On a preliminary note, this Court would refer to the Defendants’ contention on the proper appreciation on the rule of proximity. This Court appreciates the Defendants’ reference to the case of Architype Projects v Dewhurst MacFarlane & Partners (A Firm) [2004] PNLR 39 which clearly has decided that the Junior Book case should only be followed in cases which are identical to Junior Book’s unique facts. And this Court wholly concurs with this submission as the relationship proximity decided in Junior Book is aptly different from the present case. Junior Book dealt with the relationship between a contractor or sub-contractor and an employer which understandably the relationship between these parties may to a degree be foreseen to intertwine with one another. An employer employs a contractor and 48    the contractor employs a sub-contractor to achieve the same result, which is the performance of the initial contract. However, Talam’s relationship with the chargee is a world apart from the proximity dealt with in Junior Book’s case. And in fact, Talam’s relationship with Cekap Mesra is already dictated by its own set of trite rule which is the doctrine of separation of entity. There is just no conceivable manner at all that this Court would be moved to define a new relationship of proximity with the given facts of the present case. [92] It is appropriate to refer to the case of Stovin v Wise [1966] AC 923 to reconcile the analysis above: “the concept of proximity may be seen as an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to permit recovery in tort.” (emphasis added) [93] The bank is the chargee, who at best caters to the interest of its customers and chargors. And Talam is neither a customer nor a party to the charge. 49    [94] There is a total absence of justification for the Court to decree a new category of proximity for the alleged relationship of Talam (foreign and non-partisan from the Charge) with the Bank. [95] As was highlighted by the Defendants, the venerated relationship between a chargor and chargee is already contractually governed between the signatories of the charge document and even statutorily governed by the NLC. Any duties must be derivative of the statute and the charge document and must only cover persons who are a party in the charge and the statute. [96] The duties and obligations of the chargor and chargee have been meticulously detailed in the statute and the contract and the Court must respect the autonomy of the PARTIES to the charge and none other. [97] To simply draw a nexus to a third party (in this case, Talam) who is utterly disjointed, foreign and could not have been within the contemplation of the charge is a blatant insult to the sanctity of the rule of privity. 50    [98] What more when it is already a trite law that even the shareholders of a Body Corporate is disparate from the company and the shareholders cannot deal and claim the company’s assets. Adding salt to the Plaintiff’s wounds is the fact that it is also the law that a Holding company cannot deal with the assets of its subsidiary. [99] Therefore, it is this Court’s preliminary finding that the Defendants do not owe any duty of care against the foreign and stranger Talam. It matters not if the Defendants indeed knew of Talam’s identity as this Court could not possibly define such outrageous relationship to be in proximity of the duty of care. Law on Legitimate Expectation [100] The law on legitimate expectation is simply that a party should not be allowed to approbate and reprobate. It is the Plaintiffs’ contention that the Defendants’ conducts have led or encouraged the Plaintiffs to believe that it agrees to the operability of the Settlement Agreement. The Plaintiffs squarely relied on the case of PB Securities Sdn Bhd v Auto Ways Holding Bhd [2000] 4 MLJ 417. 51    Bank’s Conduct: Payment of Quit Rent [101] It is the Plaintiffs’ contention that the act of the Bank in paying the quit rent over the property on the purported request of Keuro Leasing is somehow a conduct signifying an affirmation to the Settlement Agreement. However, this Court holds no hesitation to wholly disagree with this contention. The fact was that the Bank received a letter from the Selangor Land and Mines Office dated 10.5.2010 (see Exhibit D81 of Bundle B2) informing of CHDSB’s failure to pay the quit rent in an arrears of RM158, 840.00. It must be noted that this letter was not carbon copied to CHDSB or Keuro Leasing. The letter was personal to the bank. Thus, as a prudent financial institution, the Bank acted in protecting its interest over the property against any risk of the land being forfeited back by the state under Section 100 of the National Land Code 1965. [102] The payment was made purely to protect the Bank’s interest and was not made in the interest of the Settlement Agreement. It was CHDSB’s failure to pay the quit rents that puts the land at risk of 52    forfeiture. And this risk is exactly the sole reason the Bank was cornered to pay the quit rent. [103] Furthermore, this Court is not about to allow CHDSB to benefit from its own folly in failing to pay the quit rent. The Plaintiffs come to this Court seeking for a supposed equitable right. However, it is already trite law that he who does not come with clean hands shall never enjoy the protection and benefit of equity. Bank’s Conduct: Attendance at the Meeting with MBI on 16.3.2010 and 24.3.2010 and the issuance of the Redemption Statement dated 6.4.2010 (“Redemption Statement”) [104] The Plaintiffs then claim that the Bank’s attendance during the Meetings with MBI and also the issuance of the Redemption Statement to MBI dated 6.4.2010 are conducts which acknowledge Talam’s beneficial interest over the property and the operability of the Settlement Agreement. 53    [105] This Court finds no difficulty at all to find that the Plaintiffs’ contention above preposterous. With regard to the Bank’s attendance in the meeting on 16.3.2010, it is the Plaintiffs’ own witness (PW-3) who has readily admitted that the Bank has never agreed and/or committed to anything during this meeting. In fact it was even admitted that the main agenda of the meeting is merely to put the auction proceedings in “abeyance”. The literal meaning of the word ‘abeyance’ as defined by the Oxford’s Dictionary is “A state of temporary disuse or suspension”. It is verily important to note that the Plaintiffs’ own witness that admits that the meeting’s purpose was not even to pursue the full withholding or withdrawal of the auction proceedings. It was understood that the auction proceedings was still on- going and was never put to rest. (See NOE – 6.2.2015 at page 73- 76) [106] With regard to the Bank’s attendance during the meeting on 24.3.2010 this Court also highlights that PW-2 { Datin Paduka Low Siew Moi – Advisor for Menteri Besar Incorporation (MBI)} has already admitted that the meeting led to no such acknowledgment or commitment to the Settlement Agreement. It was further admitted that 54    this meeting is merely a general meeting to all financial institutions to inform of a probable settlement with MBI. It was admitted that none of these financial institutions have agreed or committed to the proposed settlement. In fact, it was even admitted that at that point in time, there was nothing for the Bank to agree on since the proposed settlement was only between MBI and Talam. (See NOE – 4.2.2015 at page 109) [107] With regard to the issuance of the Redemption Statement, it is plain to ascertain that even in such act of giving an opportunity to MBI to redeem the land, the Bank has never intended to play by the rules of Settlement Agreement and completely reserved its rights to continue with the auction proceedings notwithstanding the Settlement Agreement. The grounds of this finding are as follows: i. The Bank’s Redemption Statement’s validity period has never coincided with the timeline and estimated settlement conclusion of the Settlement Agreement. This is all too clear comparing Keuro Leasing’s letter dated 8.3.2010 to the Bank with the expiration date of the Redemption Statement. The letter 55    indicates that the tentative date of settlement would be on 31.7.2010 while (in disinterest to the terms of the Settlement Agreement) the Bank’s Redemption Statement expires on 30.6.2010. This is already a positive indication that the Bank is disinterested to play by the rules set by the Settlement Agreement. ii. If it was true that the Bank is in agreement with the Settlement Agreement, the Bank would have issued the redemption statement until the final date of the settlement. Instead, the Redemption Statement is valid only until 30.6.2010. This is instead an act negating the Settlement Agreement and in fact a positive act of the Defendant to reserve its right to enforce the charge in case the Plaintiffs fail to adhere to the Redemption Statement. iii. In fact, the act of the Bank in refusing to issue further redemption statement is also a positive act solidifying their disinterest and disagreement with the Settlement Agreement. 56    iv. Furthermore, the material term stipulated in the Redemption Statement clearly reserves the Bank’s right to continue with the auction proceedings notwithstanding the Settlement Agreement. The Redemption Statement reads: “The redemption sum must be received by us in full and not later than the later/latest of the above redemption date failing which this redemption statement shall lapse and cease to be of any further effect… Where the Loan is in arrears/outstanding, this redemption statement is issued without prejudice to the Bank’s right to recover the amount owing or to institute any legal proceedings to protect the Bank’s interest” v. And it is verily important to appreciate that even the Plaintiffs’ witnesses (PW-2 and PW-3) have admitted that the Redemption Statement indeed reserves the above right for the Bank. They also admitted that MBI was aware of the 57    reservation of rights. (See NOE – 4.2.2015 at page 138; NOE – 6.2.2015 at page 77) vi. The issuance of the Redemption Statement is without prejudice of the Defendant’s rights to exercise the charge and auction off the land. This issuance is merely the Bank’s courtesy to give the CHDSB, Keuro Leasing or MBI more time to pay, which ultimately they still fail to pay. [108] If the Bank really intends to adhere and agree to the Settlement Agreement, it would have gone as far as to withdraw its application for Order For Sale/ Foreclosure Proceeding. The mere fact that there were no such withdrawal at all material times, proves that the Bank never adhered to the terms of the Settlement Agreement and intends to reserve its statutory rights to foreclose the property. [109] It is already patently clear that the Plaintiffs’ own witnesses that the meeting never reached to any finality with the bank’s affirmation of the settlement agreement and even foreign Talam’s beneficial interest in the property. 58    [110] In fact when the Defendants were first informed of the proposed Settlement Agreement, the content of Keuro Leasing’s letter informing of the settlement agreement, does not mention that Talam would deal with the land and sell off the land to MBI. Instead, what was informed was that in the prospect of an associate company entering into a settlement agreement with MBI, the property happens to be identified to be part of the settlement programme and that MBI is interested to redeem the land at RM 6.6million. Nowhere was it stated that the foreign Talam would be the party disposing the property. Nowhere was it stated that the redemption exercise would be conducted between MBI and the bank vide Talam. This is the status quo set forth by Keuro Leasing. This is the status quo of the parties’ understanding in the dealing of the property. Talam was never represented to the disposing party in the status quo. And neither of the parties, especially the Plaintiffs sought to retort and correct this status quo. Keuro Leasing’s letter dated 8.3.2010 merely states: (See Bundle B at page 48) 59    “We are pleased to inform that our associate company… (“Talam”) will be entering into a Settlement Agreement with… (“MBI”) sometime this week. Under the Settlement Agreement, MBI has identified the Danau Putra Land as part of the settlement programme which MBI will redeem the chargee Bank, Bangkok Bank a redemption sum of not more than RM6.6 million” Vividly, there is not even an iota of mention that Talam is the disposing party. [111] Thus, the attendance of the Defendants in the meetings and even the issuance of the Redemption Statement were in a clear and untainted understanding and status quo that Talam was not the disposing party and that Talam does not have the beneficial interest to dispose the property. Bank’s Conduct: Requesting for a long date for the auction on 7.9.2010 60    [112] Somehow in the Plaintiffs’ untamed imagination, this request for a long date for the auction was seen as an act of ‘postponement’ in agreement to the Settlement Agreement. However, it is this Court’s considered view that the Plaintiffs in their grand illusions have read too much into this request. [113] The request for the long date is merely made out of intrigue considering that the Bank was only recently informed of the Settlement Agreement. And this intrigue was not without reservations. It must be borne in mind that notwithstanding CHDSB’s opposition against the auction, the Bank’s solicitors remained steadfast contending for the continuous procession of the auction proceedings. And this is reflected in the minutes of the Case Management Report on 1.4.2010 which reads (see Exhibit D87 at Bundle B3 at page 4): “Ppff: phn SFD dijalankan dan Mah boleh bagi tarikh lelong panjang jika Def nk settle this matter. Mah proceed SFD” 61    [114] The Bank has never at any point in time deserted or abandoned its stance to follow-through with the auction proceedings. This fact is further cemented considering the fact that the same reservation to pursue the auction was similarly set up in the issued Redemption Statement. Bank’s Conduct: Alleged verbal agreement to issue a further Redemption Statement [115] It is the salient duty of this Court to test the veracity of the oral testimony of the witnesses against the entirety of the facts and contemporaneous documents surrounding the case and ascertain the probability or improbability of their testimony in analysis of all these considerations and variables. (See: i. Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, ii. Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97) [116] PW-6 (Roos Haini binti Mansor – an executive with Keuro Leasing) testified that DW-2 (Rajendran Palaniappan), who is the 2nd Defendant has verbally agreed to issue a further redemption 62    statement. However, this Court has serious doubts as to the probability of such verbal affirmation. [117] Firstly, the testimony of PW-6 with regard to the actual verbal affirmation by DW-2 has been anything but consistent. Upon examined regarding the actual words of affirmation, PW-6 has testified three different versions of the verbal affirmation despite being asked to quote it ad verbatim. The first version was “Yes, I will give you”, which then changed to “Ok, I will give you”, and finally was totally changed to “Ok, we will come up with the letter”. [118] Secondly, this Court finds it difficult to come to grips with the contention that in the short approximate 5 minutes telephone call, that DW-2 would make such a crucial affirmation regarding a matter which involves millions of Ringgit. [119] Thirdly, in contrast with all the contemporaneous documents, which are the Redemption Statement and the minutes of the Case Management, the explicit consistency of the Bank’s stance in 63    disagreement with the Settlement Agreement, it is this Court’s considered view that PW-6’s testimony is verily improbable. [120] Lastly, in full knowledge of the gravity of the importance of this further redemption statement, the fact that PW-6 never saw it fit or proper to reconfirm the verbal agreement in writing in any shape or form, begs this Court to plunge the veracity of PW-6’s testimony further into the realm of improbability. [121] Therefore, in view of all the preceding discussions, it is this Court’s considered view that there is absolutely nothing that could be inferred from the Defendants’ conduct that would raise any of the contended estoppel raised by the Plaintiffs. [122] Furthermore, this Court has discussed at large and in details on the supposed acts of the Defendants and this Court is in total disagreement of this contention by the Plaintiffs. None of the acts alleged were conducts which could have led to the Plaintiff’s legitimate expectations that the Defendant would adhere and allow 64    the Settlement Agreement. Thus, this contention on legitimate expectation shall ultimately and utterly fail. E. THE BANK HAS NOT BREACHED ITS DUTY OF CARE AGAINST CHDSB [123] At this juncture, it is imperative that this Court reiterates that the Defendants do not owe any duty of care against Talam, the 1st Plaintiff. Thus, the following discussion on the Bank’s duty of care is strictly with regards to the Bank’s duty as a chargee over CHDSB as the chargor. [124] The Plaintiffs in contending on the Bank’s duty of care has referred to numerous decisions from foreign jurisdictions which dealt with the relationship between a mortgagor and a mortgagee. These cases are namely the case of Forsyth & Another v Blundell & Others [1973] 129 CLR 477, Palk & Anor v Mortgage Services Funding PLC [1993] Ch 330, and Australian and New Zealand Banking Group Ltd v Bangadilly Pastoral Co pty Ltd And Others [1978] 19 ALR 519. Generally, these decisions all indicate that the duty of the 65    mortgagee is at liberty to protect his own interest, but in doing so he cannot unfairly prejudice the interest of the mortgagor. (See Palk & Anor v Mortgage Services Funding PLC [1993] Ch 330) The Bank’s alleged breach of duty in disallowing the Settlement Agreement to attain a higher price for the property sale [125] Preliminarily, this Court reiterates that there are severe repercussions when CHDSB as chargor has failed to challenge the TD Aziz Evaluation Report during the charge action. The undisputed and unchallenged TD Aziz Evaluation Report is an admitted, affirmed and acknowledged proof of the property’s appropriate market value at the time of the auction. Thus, it is no longer open for the Plaintiffs to contend against the price in which the property was auctioned off. (See People Realty Sdn Bhd v Hong Leong Bank Bhd & Anor [2007] 6 MLJ 595) [126] Thus, the failure to challenge the TD Aziz Evaluation Report remains largely relevant as it is a total acknowledgment of the propriety of the evaluation of the property’s market price at the time of the auction. 66    The failure to challenge is failure to prove any measure of damages or loss. [127] Even in view of the chargor’s interest, the absence of any challenge to the evaluation report is the chargor’s acknowledgment that the valued market price is proper and not in any manner improper against the interest of the chargor. [128] Mahadev Shankar JCA has held in the case of Malayan Banking v Lim Poh Ho & Anor [1997] 2 CLJ 516 that: “If the power of sale is exercised in good faith for the purpose of protecting his security, then he is not liable to the chargor even though he might obtain a higher price and even though the terms might be regarded as disadvantageous to the chargor.” (emphasis added) [129] However, it is pertinent to note that the local chapter in Malaysia has demarcated and starkly distinguished the principle of a charge and mortgage. As rightfully referred by the Plaintiffs, Peh Swee Chin J in 67    Bank Bumiputera Malaysia Bhd v Doric Development Sdn Bhd & 2 Ors [1988] 1 MLJ 462 has decided: “In the first place, the premise that a charge under National Land Code is the same as an English mortgage at common law is patently erroneous. A charge is governed by detailed statutory provisions of the National Land Code while an English mortgage at common was a horse of a different colour altogether.” (emphasis added) [130] It was also decided by the Federal Court in the case of Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2006] 5 MLJ 21 that: “The concept of the English mortgage is not consistent with the Torrens System. This is because in a mortgage the title passes from the mortgagor to the mortgagee whereas a duly registered charge under the NLC only creates a legal interest in the land…There is no such thing as the English mortgage in the Malay states.” (emphasis added) 68    [131] Thus, by principle the whole discourse on the Bank’s duty of care is premised on the case of Lim Poh Ho above and not on the numerous cases dealing with mortgages. [132] Nonetheless, turning back to the allegation at hand, the question remains to be whether or not CHDSB has been unfairly prejudiced from the sale of the property vide the auction. [133] First of all, let this Court be clear with whose interest should the chargee Bank consider in auctioning off the land. It seems that the Plaintiffs are very loose in determining the “interest of chargor” in the application of authorities they purport to rely on. [134] Now, what is clear up to this point is that the chargor is the 2nd Plaintiff, CHDSB. If any meaning of the “interest of the chargor” was to be subscribed it would strictly be the interest of CHDSB. This Court has already found that Talam cannot be equated to be the chargor at even the farthest logical and legal imagination. Simply put, the interest of CHDSB as chargor is vastly disparate from the interest of the foreign Talam. 69    [135] At this juncture, this Court would recollect and remind the true essence of the Settlement Agreement. Is the Settlement Agreement a debt settlement of CHDSB? Clearly it is not. The Settlement Agreement is for the settlement of foreign Talam’s debt. Again, to whose interest does the Settlement Agreement caters to? Resoundingly, the Settlement Agreement is engineered to the utmost benefit of the foreign Talam and not CHDSB as the chargor. Simply put, even if Talam were to secure a valid Settlement (which this Court vehemently disagrees) any higher price paid would only go to the benefit of the foreign Talam to absolve its debts. None of the higher sum paid would go to the benefit of CHDSB as a body corporate separate to Talam. CHDSB would only get its property back unencumbered. To which, the same benefit to CHDSB would remain the same even if the property were to be sold vide the auction or by the Settlement Agreement. Clearly now, the benefit so strenuously fought by the Plaintiffs is not benefit of the chargor, but the extremely foreign Talam. 70    [136] Thus, even with the holistic operation and application of the mass of authorities leaned upon by the Plaintiffs, it does nothing at all to salvage the Plaintiffs’ ultimately fallacious, faltering and dying case. [137] Here, it is sufficient that the Bank has already auctioned of the property based on the unchallenged TD Aziz Valuation Report. The interest of the chargor would have already been catered to from this auction. Any higher price attained from the Settlement Agreement would not benefit the chargor CHDSB. There is no reason for the Bank to look beyond its diligence to ascertain the market price of the property for the mutual benefit of the bank and the chargor. There is no reason at all for the Bank to consider the Settlement Agreement which concerns a party (Talam) who is foreign to the charge and in fact, was never in any position to deal with CHDSB’s assets at all and/or any material time. [138] Furthermore, to say that the Bank has not at all given CHDSB as chargor any opportunity to pursue this opportunity is incorrect. Even without adherence and agreement to the terms purported in the bogus agreement, the Defendant did issue the Redemption 71    Statement for CHDSB to redeem the property in pursuing this supposed settlement (notwithstanding and not in accordance with the Settlement Agreement) which the Plaintiffs ultimately failed to obtain in the duration of the validity of the Redemption Statement. The Bank’s alleged breach of duty in informing of its stance against the Settlement Agreement [139] In the dying bid to salvage the Plaintiffs’ case the learned counsels of the Plaintiffs have contended that the Defendants have failed to be clear of its stance against the Settlement Agreement particularly in the meetings with MBI and also in reference to a line of correspondences that the Defendants left without response. [140] With regard to the meetings, this Court reiterates the earlier finding that it has already been admitted by the Plaintiffs’ own witnesses that the Bank has done nothing to commit or agree to the Settlement Agreement in any of the meetings. And even if the Defendants kept their silence, there is no room for the Plaintiffs’ to infer a tacit acceptance owing to the fact that the Bank has already made it clear 72    during the hearing for Summons for Directions, the Case Management on 1.4.2010 and also the issuance of the Redemption Statement that the Bank intends to reserve its rights to continue with the auction proceedings. And it is already a trite principle that, silence is never any form of acceptance to a covenant or contract. [141] There is no duty against the Defendants to inform of its stance. The Defendants have been patently clear with its stance to keep with the procession of the auction even with the issuance of the Redemption Statement. [142] The string of unanswered letters which were brought to the attention of this Court does nothing to prove any sort of breach of duty (which the Defendants never owed to begin with). It is the Plaintiffs’ own delusions that brought to their own unwarranted imagination that the Defendants have agreed to stand with the Settlement Agreement, and their own misguided delusion that the Defendants ought to owe a duty to negate such (non-existent) acknowledgment over the Settlement Agreement. 73    [143] The Plaintiffs cannot derive any positive act of affirmation from the non-response to the line of letters when the Defendants have clearly reserved its rights vehemently to proceed with the auction and not adhere to the Settlement Agreement. The Bank’s alleged breach of duty in failing to inform the Plaintiffs that the Bank only allows redemption up to 30.6.2010 [144] This Court is in utter amazement with respect with the Plaintiffs’ delusion that the Bank would owe such duty. [145] Firstly, it suffices that the Redemption Statement has already indicated the time in which MBI has to redeem the land. It is enough of a notice that the bank would no longer be interested to deal with MBI beyond the expiration of the Redemption Statement. [146] Secondly, the mere fact that the Redemption Statement was set to expire even before the performance of the Settlement Agreement, is already a vivid indication that the bank is not even remotely interested to abide by the terms of the Settlement Agreement. It matters not if 74    the Bank has knowledge of the identity of Talam, or the probability of this Settlement. What matters is that the Defendants never conducted itself to encourage the Plaintiffs’ wild imaginations and the Bank never intended to play by the rules of the Settlement Agreement. F. COURT’S DECISION AND DIRECTIONS [147] In light of all of the above findings, it is this Court’s decision that the Plaintiffs have ultimately failed to prove their case on the balance of probabilities. [148] This Court hereby dismisses the Plaintiffs’ action with costs to both the Defendants. On the issue of costs [149] Having delivered the judgment, the parties were then invited to submit on the issue of costs. Mr Oommen, counsel for the Defendants stood up and informed this Court they are ready with their written submission to address this Court on the issue of costs. 75    However, Mr Chin, counsel for the Plaintiff had informed this Court that he is not ready to submit on the issue of costs and requested time to address the Court on this issue. This Court had obliged Mr. Chin’s request for adjournment and fixed this case for another date for parties to submit on the issue of costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 22nd October 2015 For the Plaintiffs : Tetuan Arifin & Partners Encik Chin Tzi Seng Encik K. Chandrasekar Cik Emmy Hazwani Jamil For the Respondent : Tetuan Zaid Ibrahim & Co Encik Oommen Kurien Cik Celine Chelladurai Cik Ain Aissa

Tika 2.6.0

24-1392-12/2014

PLAINTIF AMCARD SERVICES BERHAD (Dahulunya dikenali sebagai Arab-Malaysian Credit Berhad) DEFENDAN 1. Dato' Joseph Chong Chek Ah (No. K/P: 7537890/511105-06-5033) 2. Zhou Xingchen (No. Paspot: G19649975)

01/09/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f169db41-0a3a-4ce2-9836-e704e1f56a03&Inline=true

Microsoft Word - 24-1392-12-2014 Amcard Services Lwn Dato' Joseph Chong Chek Ah dan 1 lagi 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO : 24-1392-12/2014 Dalam perkara mengenai seksyen 281, 257 sehingga 259, dan 266 sehingga 269 Kanun Tanah Negara 1965 Dan Dalam perkara mengenai kaveat pemegang lien perserahan no. 33560/2009 terhadap semua hartanah yang dipegang di bawah Geran 211890 Lot 63291 Bandar Glenmarie, Daerah Petaling, Negeri Selangor Darul Ehsan Dan Dalam perkara mengenai peruntukkan- peruntukkan Kaedah-Kaedah Mahkamah 2012 BETWEEN   AMCARD SERVICES BERHAD (Dahulunya dikenali sebagai Arab-Malaysian Credit Berhad) ... PLAINTIFF AND 1. DATO’ JOSEPH CHONG CHEK AH (NO. K/P : 7537890/511105-06-5033) 2. ZHOU XINGCHEN (NO. PASPOT : G19649975) …DEFENDANTS 2    GROUNDS OF JUDGMENT (Originating Summons – Enclosure 1) Sections 281, 257-259 and sections 266-269 of the National Land Code 1965 A. BACKGROUND FACTS [1] By this Originating Summons (Enclosure 1), the Plaintiff seeks for inter-alia the following reliefs: 1. that the property held under Geran 2111890 Lot 63291 di Bandar Glenmarie Daerah Petaling Negeri Selangor (hereinafter referred to as the said (“Property”) which is registered in the names of the Defendants to which the Plaintiff named above has entered a Lien- Holder’s Caveat vide the Presentation No. 33560/2009 (hereinafter referred to as the “Lien-Holder’s Caveat”) as additional security for a loan is to be sold by public auction under Section 281 of the National Land Code 1965 to repay the outstanding Judgment sum of RM7,075,000.00 as at 15.12.2014 until the date of the sale; 2. that a date is set by the court to conduct a public auction; 3. that a reserve price for the said Property and other directions in respect of the sale shall be determined by the Senior Assistant Registrar; 3    4. that the bidders in the auction are not allowed to bid at the public auction unless the bidders at public auction satisfy the officer of the court that at the time of sale, the bidders at the auction possess an amount equivalent to ten per centum (10%) of the reserve price set out in paragraph 3 above; 5. that if the full purchase price is not paid by the purchaser at the public auction after the fall of the hammer, the amount in paragraph 4 above shall be paid to the Plaintiff as a deposit and immediately credited to the account of the Defendants pending the settlement of the purchase price; 6. that the balance of the purchase price shall be paid on a date not later than one hundred and twenty days (120) form the date of sale and this period shall not be extended; 7. that if the balance purchase price is not settled on the date mentioned in paragraph 6 above, the amount paid to the Plaintiff as a deposit under paragraph above shall be forfeited and disposed of in the manner specified under Section 267A of the National Land Code (Amendment) Act 2001; 8. that within seven (7) days from the date the said Property was sold, the Defendants named above and/ or anyone who live in the said Property shall vacate the said Property and hand over vacant 4    possession of the said Property to the Plaintiff or purchasers in the public auction; 9. that all the costs and expenses of this application and the public auction to be assessed by the court and paid to the plaintiff from the public auction proceeds derived from the sale; 10. that the relevant authorities to register the name of the buyer as the owner of the said Property free of encumbrances; 11. that the Plaintiff is given the liberty to purchase at the public auction without paying any deposit and if the Plaintiff is the buyer, the Plaintiff is given the liberty to deduct the purchase price against the amount outstanding including the costs and expenses of the sale and also all the costs payable and owing from the Defendants named above. [2] Basically, the present case before this Court is an astoundingly clear-cut case of the realization of a security by the Plaintiff-Bank who holds a registered lien over the security co-owned by the Defendants. The factum of indebtedness is tremendously undisputed and by and large admitted by both parties. The Defendants in a last-stitch effort have attempted to eschew from their liabilities owed to the Plaintiff with an utterly desperate as well 5    as incorrect supposition of the law to delay the ends of justice and the proceedings of this Court. [3] Alluding to the facts of the case, the Plaintiff (Amcard Services Berhad), a financial institution has granted some RM39,336,594.00 of loan (the “said loan”) in favour of Westmont Holdings Sdn Bhd (“Westmont”) in which the 1st Defendant (Dato’ Joseph Chong Chek Eh) stood as a guarantor to the said loan. The 2nd Defendant (Zhou Xingchen) is an individual of Chinese Nationality and holding a China Passport No: G 19649975). [4] It must be noted in the present case that in opposing the Plaintiff’s application, the 2nd Defendant had filed two affidavits namely; Affidavit In Reply (NO.1) and Affidavit In Reply (NO.2) and in both affidavits, the 2nd Defendant had affirmed and deposed the affidavits for herself and on behalf of the 1st Defendant. In both affidavits, the 2nd Defendant had also claimed that she was given a full and complete authority by the 1st Defendant to affirm the affidavits on behalf of the 1st Defendant. It must also be noted that the 1st Defendant is an undischarged bankrupt and until now has not obtained the sanction of the Director-General of Insolvency 6    under section 38 (1) (a) of the Bankruptcy Act 1967 to defend this action. This Court will deal with the 1st Defendant’s legal competency later in the judgment. [5] At this juncture, this Court shall continue with the relevant facts giving rise to the Plaintiff’s application. The 1st and 2nd Defendants (“Defendants”) are co-proprietors of a property held under Geran 211890 Lot 63291 in Bandar Glenmarie Daerah Petaling Negeri Selangor (“Property”). Now, it remains admitted and undisputed that Westmont has ultimately defaulted in the repayment of the said loan, and Westmont has since been wound up. In admitting his indebtedness to the Plaintiff, the 1st Defendant on 14.10.2004 has entered into a Consent Judgment (Kuala Lumpur High Court Civil Suit No: D3-22-2990-1998) with the Plaintiff in which the 1st Defendant has agreed to pay the Plaintiff a sum of RM15,000,000.00. It is unsurprising at this juncture that the 1st Defendant would also fail to comply with the Consent Judgment. [6] On the RM15,000,000.00 sum owing the Plaintiff (the Consent Judgment), the 1st Defendant had only made part payments and as at 9.4.2007, there is still RM8,250,000.00 remains unpaid by the 1st Defendant. On the sum unpaid, the Plaintiff had instituted a 7    Bankruptcy proceeding in the Johore Bharu High Court (Bankruptcy No. 29-1080-2007) against the 1st Defendant. [7] Thereafter, the Plaintiff received three (3) payments amounting to RM1,175,000.00 from the 1st Defendant (16.11.2007, 9.1.2008 and 11.6.2009). With the three payments made by the 1st Defendant, the amount outstanding due to the Plaintiff as at 11.6.2009 is RM RM7,075,000.00. In order to avoid a receiving and adjudication order recorded against him, the 1st Defendant had proposed to settle the outstanding amount by way of instalments. Upon receiving the proposal from the 1st Defendant, on or about 23.6.2009, the 1st Defendant again has entered into a Settlement Agreement with the Plaintiff and agreed to repay the amount of RM7,075,000.00 and deposit unto the Plaintiff’s lien-holding the Issue Document of Title (IDT) of the Property as security. [8] It is not in dispute that it was a term of the Settlement Agreement that both the 1st and 2nd Defendants being the registered owners of the said Property, deposit and forward the IDT of the said Property to the Plaintiff and grant a lien over the said Property in favour of the Plaintiff as security for the repayment of the loan to the Plaintiff for the outstanding sum amounting to RM7,075,000.00. 8    Accordingly, on 28.7.2009, the Plaintiff registered a lien holder’s caveat at the Selangor Property and Mines Office vide the presentation number 33560/2009 on the said Property (the “Lien Holder’s Caveat”- Exhibit “YCC-6”, Enclosure 2). [9] This Court must mention here that the depositing of the IDT for both undivided shares of the Defendants, presentation, and registration of the lien-holder’s caveat has all been explicitly agreed, acknowledged and admitted by the parties especially the Defendants. [10] Unremarkably, the 1st Defendant remains to default even this Settlement Agreement and consequential to this default, the Plaintiff applied for an Order for Sale under Section 281 of the National Land Code 1965 (“the Code”) to realize the security (which is the Property). Resoundingly, the Defendants do not have any feasible defence against the Plaintiff’s application. All that was submitted by the Defendants were misleading suppositions of law and semantics all aimed for the primary purpose of delaying the inevitable liability to pay the Plaintiff. 9    [11] Due to the 1st Defendant breach of the Settlement Agreement, the Plaintiff had also continued the Bankruptcy proceedings against the 1st Defendant and obtained a Receiving Order and Adjudication Order (AORO) against the 1st Defendant on 25.11.2009. With the issuance of the AORO, the 1st Defendant is thereby adjudicated and declared a bankrupt. B. THE DEPOSITING OF THE IDT, REGISTRATION OF LIEN- HOLDER’S CAVEAT IS CLEARLY FOR THE SECURITY OF THE REPAYMENT OF THE LOAN [12] The creation and the effect of liens has been clearly spelt out under section 281 of the Code. Section 281 of the Code reads as follows: 281. Creation and effect, of liens. (1) Any proprietor or lessee for the time being may deposit with any other person or body, as security for a loan, his issue document of title of as the case may be, duplicate lease; and the person or body – (a) may thereupon apply under Chapter 1 of Part Nineteen for the entry of a lien-holder’s caveat; and 10    (b) shall, upon the entry of such a caveat, become entitled to a lien over the land or lease. (2) Where the holder of any lien obtained judgment for the amount due to him thereunder, he shall be entitled to apply to the Court for, and obtain forthwith, an order for the sale of the land or lease. (3) Any such application shall be made in accordance with any law for the time being in force relating to civil procedure; and the provisions of sections 257 to 259 and section 266 to 269 shall apply, mutatis mutandis, where any such application has been made as they apply where a chargee applies for an order under section 256. (4) A lien-holder shall, on the written request of the proprietor or lessee, and within such reasonable period as is specified in the request, produce the issue document of title or duplicate lease at any Registry or Land Office so specified for any purpose for which it is required under any provision of this Act. (5) The costs properly incurred by any lien-holder in complying with any such request shall be payable by the proprietor or lessee on demand. (6) The provisions of sub-sections (2) to (5) shall apply to all liens, whether created before or after the commencement of this Act. [13] Now, the majority of the Defendants’ ultimately fallible and failing defence is hinged on a misinterpretation of the law that the depositing of the IDTs was not done to ‘secure’ or ‘obtain’ the loan, and thus falls outside the operation of Section 281 of the Code. A majority of the Defendants’ already feeble defence is drafted in this misleading tone, in that it is the law that for a lien-holders’ rights to 11    arise to realize security under Section 281 of the Code, the IDT deposited must be purposed to secure (in the meaning of ‘obtaining’) a loan. This Court hesitates nothing to dismiss this misleading reading of the law. The Defendants attempted to find support for this misleading interpretation of the law from the case of Manickavasagam Chetty v McGregor (1933) MLJ 293 where it was already held that the depositing of the IDT must be for the purpose of a “security” for a loan and NOT ‘securing’ a loan. [14] What the Defendants are proposing is an utterly erroneous and incorrect understanding of the law. The Defendants are clearly eschewing from their admitted liability to pay arrears in the loan repayment by masquerading behind a gross misinterpretation of the law. [15] The meaning of a ‘security’ for the loan does not mean that a particular parcel of land is used to ‘secure’ or ‘obtain’ a particular loan. This is gravely incorrect. A security, most relevant, are properties deposited to the holding or possession of a lender as an incentive to the borrower, to ensure that the borrower to the loan shall repay the loan, and also a fail-safe to the benefit of the lender to realize in case the borrower defaults in the repayment of the 12    loan. Thus, the salient essence of a security is not the ‘securing’ of a borrowing by a borrower, but the fail-safe for the lender in case of a default of the repayment of the loan as well as an incentive for the borrower to pay his dues to the lender. The blatant misinterpretation of the Defendants is that the Defendants ascribe the meaning of ‘obtaining’ or ‘acquiring’ or ‘procuring’ or ‘securing’ to the term ‘security for a loan’ which is entirely incorrect. It is incredulous and ultimately wrong to assume that only when a security is deposited at the approval stage of the loan, that the borrower would have a lien-holding falling within the ambit of Section 281 of the Code. In fact, it is already the precedent that an enforceable and registrable lien-holding is lawfully created when a security is deposited as creditor’s forbearance to sue as decided in the case of Heap Huat Rubber Co. Sdn Bhd v United Overseas Bank Ltd [1992] 3 CLJ 1589. Thereto, this Court is entirely convinced that a furnishing of security even after a loan is granted indeed leads to the creation of a valid, enforceable, and registrable lien. [16] This contention by the Defendants does not hold water at all. Thus, this Court finds that indeed the Property deposited by the 13    Defendants to the lien-holding of the Plaintiff was for the purpose of securing the repayment of the loan. C. IT IS IRRELEVANT THAT THE DEFENDANTS ARE NOT BORROWERS TO THE LOAN [17] This Court hardly has to delve into this verily failing contention by the Defendants. Indeed it stands that the 1st Defendant stood as guarantor to Westmont and the 2nd Defendant merely is a party furnishing security for the loan for the benefit of Westmont. But it remains undisputed that both Defendants have furnished security to the lien-holding of the Plaintiff. It is already well settled and trite law that the local chapter allows for the creation of third-party liens, in which any party besides the borrower may furnish security for a loan to the benefit of the borrower. The party furnishing the security need not benefit from the loan or be the borrower for a valid lien-holding to be created and protected under Section 281 of the Code. This has already been well settled by the Court of Appeal in the case of United Overseas Bank (M) Sdn Bhd v UJA Sdn Bhd [2009] 6 MLJ 857. 14    [18] The Court of Appeal in the United Overseas Bank (M) Sdn Bhd has clearly held that a lien can be created as security under section 281 of the National Land Code not only for the benefit of a registered proprietor but also for the benefit of a third party borrower. Gopal Sri Ram FCJ delivering the judgment for the Court of Appeal in paragraph 9 at page 862 had this to say: “[9] Returning to the mainstream, it is in my considered judgment crystal clear that s 281 is not limited to the creation of the security by way of a lien on title only for benefit of a registered proprietor. It extends to third party borrowers as well.” [19] Thus, it is this Court’s finding that the mere fact that the Defendants are not borrowers to the loan does not at any stretch of the legal and factual imagination negate the valid creation of lien-holding of the Plaintiff. D. THE DEFENDANTS ARE ESTOPPED FROM DENYING THE VALIDITY OF THE PLAINTIFF’S LIEN-HOLDING OVER THE PROPERTY 15    [20] Suffice that this Court refers to Exhibit YCC-4 of the Plaintiff that this Court finds that both the Defendants have explicitly admitted, and acknowledged the validity of the lien by their conduct and writing. [21] Firstly, the 1st Defendant has admitted that the depositing of his IDT over his undivided share of the Property was for the security of the loan repayment by the 1st Defendant vide his solicitor’s letter dated 18.6.2009. This letter reads: “our client will deposit the title deed to his semi detached house located at Glenmarie Subang to be held by your client as a conditional security for the payments mentioned in paragraph 2.1” [22] This letter was replied and referred to by the Plaintiff’s vide the Plaintiff’s solicitor’s letter dated 23.6.2009 in which the Plaintiff sought to confirm that both co-proprietors of the Property, being the Defendants, consent to the creation and registration of a lien- holder’s caveat over the Property. The 1st Defendant has already given his consent vide his solicitors at this juncture vide the letter dated 18.6.2009. With regard to the 2nd Defendant, the 2nd 16    Defendant has also consented to the creation of the lien vide her own signed letter of consent dated 24.6.2009 which reads: “We refer to the above and your letter dated 23.6.2009 addressed to Messrs Kumar Partnership. I hereby expressly give you a consent to enter the lien holder caveat over the said Property held in the joint name of Dato Seri Joseph Chong and myself, pursuant to the terms of the settlement” [23] Secondly, the conduct of both Defendants in depositing the IDT to the holding and possession of the Plaintiff is undoubtedly a positive affirmation and acknowledgment to the validity of the lien. It is vivid, without any shade of doubt that the Defendants have admitted and acknowledged the validity of the Plaintiff’s lien- holding over the property. And accordingly, this Court shall not allow the Defendants to approbate and reprobate their stance. This Court finds valuable guidance from the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 had referred to 17    Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no 18    difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) (See also: Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur v Sekutu Eksklusif Sdn Bhd [2010] MLJU 1303; Ho Shee Jan v Stephens Properties Sdn Bhd [1986] 2 MLJ 43) [24] This status quo of the validity of the lien is even made more compelling owing to the fact that even the Director-General of Insolvency has expressly allowed the Plaintiff to proceed with the realisation of the Property under the lien vide his Letter of Consent from Jabatan Insolvensi Malaysia dated 16.4.2014 ( Exhibit “YCC- 8”, Enclosure 2). [25] Therefore, it is this Court’s finding that the Defendants are indeed estopped from denying the validity of the Plaintiff’s lien-holding. E. THE 1ST DEFENDANT IS INCOMPETENT TO DEFEND AGAINST THE PLAINTIFF’S ACTION 19    [26] It is not in dispute in the present case that the 1st Defendant has been adjudged and declared a bankrupt when the AORO was issued against him on 25.11.2009. It is trite law that an undischarged bankrupt has no locus standi or legal competency in maintaining any action (other than an action for damages in respect of an injury to him) unless sanction of the Director General of Insolvency is obtained. Section 38(1) (a) of the Bankruptcy Act 1967 (the Act) clearly provides that: (1) Where a bankrupt has not obtained his discharge – (a) the bankrupt shall be incompetent to maintain any action (other than an action for damages in respect of an injury to this person) without the previous sanction of the Director General of Insolvency; [27] There are numerous authorities dealing with the legal incompetency of a bankrupt to commence or maintain an action unless sanction is obtained from Director General of Insolvency. Suffice for this Court to mention a few. 20    (1) In the case of Sabah Bank Bhd v Syarikat Bintang Tengah Sdn Bhd [1992] 2 MLJ 588, it has been clearly held that: (i) Once receiving and adjudication orders are made, the bankrupt’s estate vests with the OA and under Section 38(1)(a) of the Bankruptcy Act 1967, the OA must first be consulted as any action intended by the bankrupt may be detrimental to his creditors. The only exception where no sanction is required from the OA is when the bankrupt files an action for damages for injury to his person or when he questions his status by filing an application under section 92(1) or 105 (1) of the Act. (ii) Section 38 (1) (a) of the Act is wide enough to include the filing of an application to set aside a default judgement. (iii) Accordingly, the third defendant must first obtain the OA’s sanction and since this was not done, he had no locus standi to file the application. (2) The requisite for sanction for a bankrupt to commence action has been re-emphasised by the Court of Appeal in the case of M/S Laksamana Realty Sdn Bhd v Goh Eng Hwa [2004] 1 CLJ 274. At page 281, Abdul Hamid Mohamad JCA (as 21    he then was) delivering the judgment of the Court of Appeal had this to say: “....All that is required to enable a bankrupt to maintain an action as provided by section 38(1)(a) of the Act is to obtain the sanction of the OA. No assignment is required. The respondent having obtained the sanction prior to his filing the counterclaim, he is competent to do so. The other point is whether the issue of locus standi should have been allowed to be raised at all during the submission, it not having been pleaded in the statement of defence. The requirement of a sanction is not just a formality. Without the sanction a bankrupt is “incompetent” to maintain an action. It goes to his capacity. If he is incompetent to file the counterclaim without “the previous sanctions” then the filing of the counterclaim without the previous sanction would have been null and void.... ” (3) In the case of Perwira Affin Bank v Sardar Mohd Roshan Khan & Another Appeal [2009] 4 CLJ 43, again the Court of Appeal has repeatedly emphasise the incompetence of a bankrupt to maintain an action and held that: 22    “Section 38(1)(a) sets out the incompetence of an undischarged bankrupt to maintain an action. The steps taken by the customer clearly came within the ambit of maintaining an action in section 38(1)(a) and so attracted the application of section 38(1)(a)..........” (See also: Chin Kong Nam & Anor v Chai Yun Phin Development Sdn Bhd [1996] 4 MLJ 271 and CIMB Bank Berhad v Eng Sim Leong & Ng Leong Hin [2014] 1 LNS 1009) [28] Clearly, the 1st Defendant being an undischarged bankrupt, must be granted sanction by the Director-General of Insolvency under Section 38(1)(a) of the Bankruptcy Act 1967 to be a competent party in a suit. And this is exactly what the 1st Defendant failed to obtain. It is trite that this requirement for a sanction is not merely a formality but a rule of law and not having such sanction definitely leads to the incompetency of the bankrupt. The Plaintiff’s action against both Defendants is undeniably an enforcement of the Plaintiff’s statutory right, that is, an action to realize a security by the Plaintiff-Bank who holds a registered lien over the security co- owned by the Defendants. Hence, unquestionably and undoubtedly that this action does not come within the ambit of an action for damages in respect of an injury to the 1st Defendant. 23    [29] The 1st Defendant has merely applied for the sanction but was never approved or granted by the Director-General of Insolvency at the time of this suit. [30] Furthermore, it is pertinent to note that the Defendants have utterly and completely failed to address the issue of the 1st Defendant’s incompetency to hold defence in their submission. [31] Thus, it is this Court’s finding that the 1st Defendant is incompetent to take any action to defend against the Plaintiff’s action in the present case. F. COURT’S DECISION [32] In light of all of the above findings, it is this Court’s decision that the Defendants have ultimately failed to prove their defence. This Court also finds that the Plaintiff’s application under Sections 257 to 259, Sections 266 to 269 and Section 281 of the Code is proper, bona fide and valid. [33] This Court also finds that the Plaintiff’s Lien-holder’s Caveat is valid, effective and enforceable at law. 24    [34] This Court also hereby finds that the Defendants have utterly failed to prove any cause to the contrary under Section 256 of the Code. This Court hereby allows the Plaintiffs’ application in Enclosure 1. On the issue of costs [35] Having heard the submission from the learned counsels for the Plaintiff and the Defendants, this Court hereby orders the Defendants to pay the Plaintiff a global sum of RM 8.000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 1st September 2015 25    For the Plaintiff - Tetuan Raja Eleena Siew Ang & Associates Mr. Harmeet Singh Mr.Chan Mun Fei For the 1st and 2nd Defendant - Tetuan Arbain & Co Mr. Jadadish Chandra  

Tika 2.6.0

24-640-05/2015

PEMOHON CASH BANK (M) BERHAD (NO. SYARIKAT: 735830-K) RESPONDEN 1. AZIZUL RAHMAN BIN ABDUL WAHAB (NO. K/p; 600403-08-6013) 2. ZAMANI BIN ABU BAKAR (NO. K.P: 620922-03-5451) 3. MOHD LILANSAH BIN IDRIS (NO. K/P: 601202-05-5653) 4. MOHD HASNULHISHAM BIN YAAKOB (NO. K/P: 591007-06-5059) 5. MD NASIR BIN IBRAHIM (NO. K/P: 630805-05-5153)

01/09/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=def7daee-dd93-4f40-923e-76c1f41df0d7&Inline=true

Microsoft Word - 24-640-05-2015 Cash Band (M) Berhad v Azizul Rahman dan 4 yang lain 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO : NO. 24-640-05/2015 Dalam  Perkara  mengenai  Kaveat  Persendirian  Perserahan  No.5815/2015;  Kaveat  Persendirian  Perserahan  No.  5816/2015;  dan  Kaveat  Persendirian  Perserahan  No.5817/2015  berkenaan  dengan  keseluruhan  tanah  yang  dipegang  di bawah PN 17396, Lot 11, Mukim Pekan  Templer, Daerah Gombak, Negeri Selangor;    Dan    Dalam  Perkara  mengenai  Kaveat  Persendirian  Perserahan  No.  5811/2015;  Kaveat  Persendirian  Perserahan  No.  5812/2015;  Kaveat  Persendirian  Perserahan  No.  5813/2015;  dan  Kaveat  Persendirian  Perserahan  No.  16534/2015  berkenaan dengan keseluruhan tanah yang  dipegang  di  bawah  PN  16838,  Lot  614,  Mukim  Pekan  Templer,  Daerah  Gombak,  Negeri Selangor;      Dan    Dalam  Perkara  mengenai  Kaveat  Persendirian  Perserahan  No.397/2015;  Kaveat  Persendirian  Perserahan  No.398/2015;  Kaveat  Persendirian  2    Perserahan  No.399/2015;  Kaveat  Persendirian  Perserahan  No.457/2015;  Kaveat  Persendirian  Perserahan  No.1046/2015  berkenaan  dengan  keseluruhan tanah yang dipegang di bawah  HS(M)  6815,  PT  11444,  Mukim  Rawang,  Daerah Gombak, Negeri Selangor;    Dan     Dalam Perkara mengenai PN17396, Lot 11  dan PN 16838,  Lot 614,  kesemuanya  yang  dipegang di bawah Mukim Pekan Templer,  Daerah Gombak, Negeri Selangor;    Dan    Dalam  Perkara mengenai  HS(M)  6815,  PT  11444,  Mukim  Rawang,  Daerah  Gombak,  Negeri Selangor;    Dan    Dalam Perkara mengenai Seksyen 327 dan  Seksyen 329 Kanun Tanah Negara (Akta 56,  1965)    BETWEEN CASH BAND (M) BERHAD ......APPLICANT (NO. SYARIKAT: 735830-K) 3    AND 1. AZIZUL RAHMAN BIN ABDUL WAHAB (NO. K/P: 600403-08-6013) 2. ZAMANI BIN ABU BAKAR (NO. K/P: 620922-03-5451) 3. MOHD LILANSAH BIN IDRIS (NO. K/P: 601202-05-5653) 4. MOHD HASNULHISHAM BIN YAAKOB (NO. K/P: 591007-06-5059) 5. MD NASIR BIN IBRAHIM (NO. K/P: 630805-05-5153) ..RESPONDENTS GROUNDS OF JUDGMENT (Originating Summons- Enclosure 1) Removal of Caveats [1] This is an Originating Summons filed by the Applicant {Cash Band (M) Berhad}, pursuant to sections 327 and 329 of the National Land Code 1965 (the NLC) for removal of all the twelve (12) private caveats entered by the Respondents against the lands belonging to the Applicant under:- 4    (i) PN17396, Lot 11, Mukim Pekan Templer, District of Gombak, State of Selangor; (ii) PN16838, Lot 614, Mukim Pekan Templer, District of Gombak, State of Selangor; and (iii) HS(M) 6815, PT11444, Mukim Rawang, District of Gombak, State of Selangor. (“the Properties”) [2] For ease of reference, all the twelve (12) Private Caveats which have been entered by the Respondents against the Properties, are set out as follows:- (i) against PN17396, Lot 11, Mukim Pekan Templer, District of Gombak, State of Selangor:- (a) Private caveat Presentation No. 5815/2015; (b) Private caveat Presentation No. 5816/2015; and (c) Private caveat Presentation No. 5817/2015. 5    (ii) against PN16838, Lot 614, Mukim Pekan Templer, District of Gombak, State of Selangor:- (a) Private caveat Presentation No. 5811/2015; (b) Private caveat Presentation No. 5812/2015; (c) Private caveat Presentation No. 5813/2015; and (d) Private caveat Presentation No. 16534/2015. (iii) against HS(M) 6815, PT11444, Mukim Rawang, District of Gombak, State of Selangor:- (a) Private caveat Presentation No. 397/2015; (b) Private caveat Presentation No. 398/2015; (c) Private caveat Presentation No. 399/2015; (d) Private caveat Presentation No. 457/2015; and (e) Private caveat Presentation No. 1046/2015. (“the Caveats”) 6    [3] It is pertinent to note that upon closer inspection of the Caveats entered by the Respondents against the Properties, it has been made clear by the Respondents that the Caveats were entered based on the following reason:- “Sementara menunggu proses pembayaran balik bayaran pendahuluan sepertimana dijanjikan Pemaju di dalam Surat Pemaju, saya ingin memasukkan Kaveat ini bagi melindungi kepentingan saya sebagai Ahli Berdaftar yang berhak mendapat bayaran balik bayaran pendahuluan serta gantirugi sepertimana dinyatakan dalam Surat Pemaju.” [4] This Court will make reference to this later. [5] The facts surrounding the Applicant’s claim are:- 5.1 the Properties initially belonged to Perangsang Templer Golf Club Berhad (formerly known as Templer Park Resort Sdn Bhd), upon which Perangsang Templer Gold Club (“PTGC”) was constructed and developed. 7    5.2 all the Respondents are individuals who are registered members of the PTGC wherein licences were issued by the Applicant to the Respondents upon payments made by the Respondents. 5.3 PTGC was operated as a proprietary club, and offered to the public memberships in the PTGC which entitle persons who had purchased the membership to use and enjoy designated facilities and amenities provided by Perangsang Templer Golf Club Berhad at PTGC. 5.4 the terms and conditions of membership of PTGC is specified under the Deed of Trust dated 3/7/1993 (“the Deed of Trust”) and the First Supplemental Deed to the Deed of Trust dated 7/4/1994 (“the First Supplemental Deed of Trust”). 5.5 Subsequently, the Applicant vide a Sale and Purchase Agreement dated 26/9/2006 purchased PTGC together with the Properties from Templer Park Gold & Resort Berhad (formerly known as Perangsang Templer Golf Club berhad) (“TPGR”). 8    Additionally, a Novation Agreement dated 9/7/2008 (“the Novation Agreement”) was entered between TPGR, the Applicant, Pacific Trustees Berhad and the members of PTGC, wherein the Applicant acquired all rights and interests of TPGR and became a party bound by the terms and conditions of the Deed of Trust and the First Supplemental Deed of Trust. 5.6 A Second Supplemental Trust Deed dated 22/7/2008 was entered between TPGR, the Applicant, Pacific Trustees Berhad and the members of PTGC, wherein the Applicant assumed all the functions, duties and obligations of TPGR contained in the Deed of Trust and the First Supplemental Deed of Trust. 5.7 In 2013, the Applicant and Setia Eco Templer Sdn Bhd entered into a Development Agreement dated 6/2/2013 for the purpose of developing the PTGC, including the Properties, with residential and commercial properties on a joint venture basis. A condition precedent under the Development Agreement is for the Applicant to terminate all memberships of PTGC held by Members, including the Respondents. 9    5.8 In compliance to the Development Agreement, the Applicant pursuant to Regulation 16.1(b) of the Second Schedule of the Deed of Trust unilaterally terminated the licenses granted to the members of PTGC, including those of the Respondents, following which the Applicant is required to pay compensations to the Members (Respondents included) in respect of the termination as per Regulation 16.2 and Regulation 17 of the Second Schedule of the Deed of Trust. [6] For ease of reference, this Court reproduces the relevant portions of the Deed of Trust:- (i) “16.1(b) The Licensed granted by the Club to the Members shall automatically cease upon the occurrence of any of the following events:- (a) in the event that a winding-up order is made against the Club; (b) in the event the Club unilaterally decides to terminate or withdraw the License granted to the Member other than pursuant to Regulations 8.8; 13; 14 and 15; 10    (c) in the event that administrator or executor or benificiary of a deceased Member elects to surrender the License pursuant to Regulation 12.3 herein;” (ii) “16.2 In the event that the termination of the License set out in Regulation 16.1 herein occurs during the Term of the License and the License terminated is an Individual License; Non-Golfing License and/or a Corporate License then, such portion of the Advance Payment which is paid in respect of the unexpired period of the Term of the License as at the date of such termination, shall become payable by the Club to the Member, free of interest, within ninety (90) days from the date of termination.” [7] It was submitted by the Applicant that Members of PTGC including the Respondents have been informed of the termination vide the 11    Applicant’s letter dated 29/10/2014, and it was specified that the termination is to take effect from 1/12/2014. [8] It was later that the Respondents lodged the Caveats upon the Properties, on the premise that the Caveats were lodged to protect the Respondents interests for payment of compensation pursuant to the termination of their respective memberships in PTGC.   THE COURT’S MINUTES [9] This Court will now refer to the cause papers and minutes. The Originating Summons was filed by the Applicant on 25/5/2015 which was supported by an Affidavit affirmed by Dato’ Kamarul Baharin Bin Abbas, who was a director of the Applicant. It is to be noted that the Applicant had also filed a Certificate of Urgency. [10] The Applicant submitted vide its Affidavit of Service affirmed by Nava Ananda Jeeva A/L Sinnathamby on 27/8/2015, that the sealed copy of the Originating Summons and Affidavit in Support was served upon 12    the Respondents’ solicitors, Messrs Harmy Yussof & Azli on 29/5/2015. [11] When the case was first called for case management before the Senior Assistant Registrar (SAR) on 9/6/2015, the Respondents’ solicitors had requested, and the SAR had allowed the Respondents to file its Affidavit in Reply on 2/7/2015. This Court, however took notice that the Applicant had objected to the Respondents’ request for extension of time to file their Affidavit in Reply, nevertherless the Respondents were given time until 2.7.2016. [12] The Respondents had failed to file the Affidavit in Reply as previously directed, and had again requested for an extension of time when the matter was fixed for case management on 8/7/2015. Although the Applicant had again objected to the Respondents’ solicitors request, the learned Senior Assistant Registrar acquiesced to the request and directed for the Respondents to file and serve their Affidavit in Reply by 13/7/2015. 13    [13] The case was again called for case management on 13/8/2015, where the Respondents' solicitors had informed the Court that they have yet to file the Affidavit in Reply, and cited the solicitors health concerns behind the prolonged delay. The Applicant’s solicitors maintained its position in objecting to further extension of time. Subsequently, the SAR fixed the matter for hearing on 1/9/2015. [14] The Respondents eventually filed and served its Affidavit in Reply on 28/8/2015, nearly three months after the Originating Summons and Affidavit in Support was served to the Respondents’ solicitors. [15] The Applicant’s solicitors raised a preliminary objection against the Affidavit in Reply filed by the Respondents. [16] When the matter was heard before this Court on 1/9/2015, only the Applicant’s solicitors attended the hearing and provided its submission. 14    ISSUES TO BE DETERMINED BY THIS COURT [17] Having set out the relevant facts and chronology of events with regards to the filing of affidavit in reply by the Respondents in opposing the Applicant’s application, primarily there are two issues to be determined by this Court, namely:- i. the Applicant’s preliminary objection against the Respondents Affidavit in Reply; ii. the Applicant’s application to remove the Caveats lodged by the Respondents on the Properties. i. Applicant’s preliminary objection against the Respondents’ Affidavit in Reply [18] This Court took notice that the Respondents had been given a period of almost 3 months to file its Affidavit in Reply, and had failed not once, but twice, to adhere to the directions given by the Court during the case management fixed on 9/6/2015 and 8/7/2015. 15    [19] The Respondents only filed and served the Affidavit in Reply on 28/8/2015, which is now objected to by the Applicant vide its notice of preliminary objection dated 28/7/2015. [20] The Applicant’s solicitor in its submission made reference to Order 32 Rule 13(2)(b) of the Rules of Court 2012, and supported the preliminary objection with the following authorities:- (1) Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535 (2) Perbadanan Nasional Insurans Sdn Bhd v Pua Lai Ong [1996] 3 MLJ 85 (3) Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228 [21] For ease of reference, the relevant judgment of the three cases referred by the counsel for the Applicant are reproduced below: 16    (1) Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535. The Court of Appeal held inter alia: “(4) The appellant had not applied for leave or abridgment of time to file the said affidavit . Furthermore the said affidavit was served after the respondent had served on the appellant’s solicitors their submissions and bundle of authorities in respect of the summary judgment application. The judge had correctly exercised his discretion in allowing the preliminary objection and consequently rejecting the said affidavit (see paras 33-34).” (2) Perbadanan Nasional Insurans Sdn Bhd v Pua Lai Ong [1996] 3 MLJ 85. Siti Norma Yaakob, JCA (as she then was) delivering the judgment of the Court of Appeal at page 93 had said this: “Having stated that, we now ask ourselves whether the court has the discretion to allow an affidavit in reply to be used in proceedings under 17    O14 despite the fact that such affidavit had not complied with the provisions of O 32 r 13(2)(b). We answer in the negative for the following reasons. Order 32 r 13(2)(b) makes it mandatory for such an affidavit that it seeks to reply is received. The word ‘must’ as opposed to ‘may’ is used in the rule, and we interpret that to mean as implying a peremptory mandate as opposed to a mere direction or discretion as the word ‘may’ implies. We equate the meaning of the word ‘must’ as that given to the word ‘shall’, and for that reason the choice of the word ‘must’in the rule does not create the existence of any discretion or empowers the court to exercise such a discretion. To state otherwise would defeat the very purpose O 32 r 13(2) was intended ie to prevent any last minute affidavit being filed so as to protract the hearing of any proceeding in chambers. For that reason, we cannot support the finding reached by Malayan Banking Bhd v Lim Tee Yong & Ors, on the existence of a discretion. We hasten to add that under such circumstances, the defendant may apply for an abridgement of the period required to file the affidavit in reply pursuant to O 3 r 5(1) of the RHC.” (3) Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228. The Privy Council held inter alia: 18    “(2) to justify an extention of time for the filing of the record there must be material upon which the court could exercise its discretion, for otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which was to provide a time table for the conduct of litigation.” [22] This Court is in agreement with the Applicant counsel’s submission that the Respondents had indeed failed to adhere to any of the Court’s direction, even when the Court had explicitly directed the Respondents to file and serve its Affidavit in Reply by 13/7/2015. [23] The Affidavit in Reply filed by the Respondents was indeed filed out of time, and the Respondents had not filed any application for abridgement of time for the purpose of filing the Affidavit in Reply. [24] This is further compounded by the fact that the Respondents had failed to provide any form of explanation to the Court for the lengthy delay in filing the Affidavit in Reply. 19    [25] Based on the aforesaid reasons, this Court allows the Applicant’s preliminary objection and hence, the Respondent’s Affidavit in Reply is expunged from the proceedings. ii. Applicant’s application to remove the Caveats lodged by the Respondents on the Properties [26] The Applicant’s solicitors drew this Court’s attention to the case of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, where it was held:- “Now, it is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted...” [27] It is not challenged that at all material time, the Applicant is indeed the registered and beneficial proprietor of the Properties. It is a trite principle of law that when dealing with an application for removal of a 20    private caveat, the questions to be determined by the Court are as follows:- (a) whether the caveator has a caveatable interest over the said property; (b) whether the contended caveatable interest so referred discloses any serious questions to be tried; (c) whether the balance of convenience is in favour of allowing the caveat to remain; (d) whether there are any special circumstances on the part of the Plaintiff that would warrant the status quo to be disturbed. [28] The trite principle of law is clearly demonstrated by the Privy Council in the case of Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212, where it was laid by the Privy Council that:- 21    “This is the nature of the onus that lies upon the caveator in an application by the caveatee under section 327 for removal of a caveat; he must first satisfy the court that on the evidence presented to it his claim to an interest in the property does raise a serious question to be tried; and having done so he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party.” [29] The Applicant further supported its submission with the authority of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng [1995] 1 MLJ 719. The burden does indeed lie on the caveator, in this instance, the Respondents, to prove to the Court that they indeed have a caveatable interest on the Properties to warrant the Court to maintain the Caveats in the Respondents’ favour. [30] This Court would like to take this opportunity to revisit the reason stated in the Form 19B submitted by the Respondents. Upon reading all the Form 19B exhibited in Exhibit-G of the Applicant’s Affidavit in 22    Support, the Court is of the view that the justification provided by the Respondents behind the lodgement of the Caveats are based solely for the protection of the Respondents’ personal claim against the Applicant for payment of compensation in lieu of the Applicant’s decision to terminate the Respondents membership to PTGC. [31] This mirrors accurately the Applicant’s supporting authority of Score Options Sdn Bhd v Mexaland Developments Sdn Bhd [2012] 6 MLJ 475, where Arifin Zakaria CJ in delivering the Federal Court’s judgment held:- “Based on the provisions of the NLC and the authorities cited by the parties, this court was of the considered view that the only parties who were authorised to lodge a private caveat were those who could effect dealings in the particular interests in the land. The caveator had to have a ‘registerable interest’ under s 323(1)(a) of the NLC. In order to be a caveatable interest, the interest should represent a transaction that could ultimately lead to its registration on the register. In the instant appeal, the appellant had conferred numerous rights on the respondent 23    under the JVPM agreement and the powers of attorney, but all these rights were merely rights to develop the land that would give rise to a monetary interest or a right in personam against the appellant and did not create any interest in the land.” [32] The Applicant further supports its contention with the following authorities:- (a) Kundang Lakes Country Club Bhd v Garden Masters (M) Sdn Bhd [1999] 2 MLJ 537; (b) Trans-Summit Sdn Bhd v Chun Nyook Lin [1995] 2 MLJ 247; and (c) E.M. Buxton & Anor v Packaging Specialists Sdn Bhd [1987] 1 MLJ 342. [33] This Court is of the view that the Respondents grounds in respect of the lodging the Caveats is purely monetary in nature, and ultimately no transaction whatsoever would occur to ultimately lead to the registration of the Respondents’ name on the register of the Properties. This Court is in agreement to the Applicant’s submission 24    that the rights of the Respondents at all material times were licensees of the Applicant to enter into PTGC to use and enjoy the facilities of PTGC. [34] Therefore, it is this Court’s judgment that the Respondents have no caveatable interest in the Properties. Following this line of judgment, it is therefore academic for this Court to decide upon the following:- (a) whether the contended caveatable interest so referred discloses any serious questions to be tried; (b) whether the balance of convenience is in favour of allowing the caveat to remain; (c) whether there are any special circumstances on the part of the Plaintiff that would warrant the status quo to be disturbed. [35] This Court is further drawn to the authority of BCB Bank Bhd v Salim bin Abdullah [2013] 8 MLJ 704, where the High Court 25    referred to the judgment of Plimmer Bros v St Maur (1906) 26 NZLR 294:- “…In Plimmer Bros’ case, nothing was done for nearly 16 months and then a caveat was lodged. More than a month had lapsed since then, and still no action has been commenced. On this, the learned Stout CJ then said: ‘In my opinion an action for specific performance under such circumstances would be hopeless, and a caveat under such circumstances must be deemed vexatious’. The learned Chief Justice was also of the opinion that it is inequitable to prevent a man dealing with his property after such a long delay and the court will not lend its assistance to such a proceeding…” [36] As at the date of this hearing, none of the Respondents have filed an action against the Applicant for payment of the compensation. A period of nearly 7 months had lapsed from the date the Respondents first lodged the Caveats against the Properties, and this Court is of the view that the delay by the Respondents is vexatious, and it is a sufficient ground to remove the Caveats. 26    COURT’S DECISION [37] Perusing the available cause papers, and upon reading the submission of the Applicant’s solicitor, this Court is satisfied that:- (a) the Applicant is the registered and beneficial proprietor of the Properties; and (b) the Respondents’ justification in lodging the caveat was a claim in personam of monetary in nature, and therefore the Respondents have no caveatable interests on the Properties [38] Hence, based on the abovementioned reasons, this Court hereby allows the Applicant’s application and grants order in terms of Enclosure 1. The Respondents are to pay costs of RM2,000.00 to the Applicant.         27            ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 1st September 2015 For the Applicant - Tetuan Shahrizat Rashid & Lee Puan Harjinder Kaur Encik Farhan Ghani For the Respondents - Tetuan Harmy Yusoff & Azli Cik Tengku Nadiatul Hanim        

Tika 2.6.0

24-394-03/2013

PLAINTIF PERMODALAN NEGERI SELANGOR BERHAD DEFENDAN 1. SERIBU BAIDURI SDN BHD 2. UTUH SEJAGAT SDN BHD 3. JATIDITI GIGIH SDN BHD 4. LBS BINA GROUP BERHAD

21/08/2015

YA DATUK AZIMAH BINTI OMAR

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Microsoft Word - 24-394-03-2013 Permodalan Negeri Selangor Berhad v Seribu Baiduri Sdn Bhd & 3 lagi 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO: 24-394-03/2013 Dalam Perkara Perjanjian Usahasama di antara Tetuan Permodalan Negeri Selangor Berhad (PNSB) dengan Tetuan Seribu Baiduri Sdn Bhd bertarikh 16.6.2000 di atas tanah Hakmilik No. HS (D) 5386 PT No. 8594, Mukim Tanjung Dua Belas, Daerah Kuala Langat, Negeri Selangor Dan Dalam Perkara Perjanjian Usahasama di antara Tetuan Permodalan Negeri Selangor Berhad (PNSB) dengan Tetuan Utuh Sejagat Sdn Bhd bertarikh 15.8.2000 bagi membangunkan kawasan perumahan dan kawasan komersial di atas tanah yang mempunyai Hakmilik PT No. 8594, Mukim Tanjung Dua Belas, Daerah Kuala Langat, Negeri Selangor Dan Dalam Perkara Perjanjian Usahasama di antara Tetuan Permodalan Negeri Selangor Berhad (PNSB) dengan Tetuan Jatidiri Gigih Sdn Bhd bertarikh 15.8.2000 bagi membangunkan kawasan perumahan dan kawasan komersial di atas atas yang mempunyai Hakmilik PT No. 8594, Mukim Tanjung Dua Belas, Daerah Kuala Langat, Negeri Selangor Dan Dalam Perkara Pampasan Yang Dibayar oleh Kerajaan Negeri Selangor untuk Pengambilan Tanah di Borang H No. 155/2007, Borang H No. 156/2007, Borang H No. 157/2007 dan Borang H No. 600/2008 di atas kesemua tanah yang dipegang dibawah Mukim Tanjung Dua Belas, 2    Daerah Kuala Langat, Negeri Selangor seluar 547 hektar (1352 ekar) Dan Dalam Perkara Aturan 5 Kaedah 4 Aturan 7, Aturan 15, Aturan 16, Aturan 28 Kaedah-Kaedah Mahkamah 2012 ANTARA PERMODALAN NEGERI SELANGOR BERHAD ... PLAINTIF DAN 1. SERIBU BAIDURI SDN BHD 2. UTUH SEJAGAT SDN BHD 3. JATIDITI GIGIH SDN BHD ... DEFENDAN- 4. LBS BINA GROUP BERHAD DEFENDAN GROUNDS OF JUDGMENT (Enclosure1 –Originating Summons) BACKGROUND FACTS [1] The Plaintiff vide its Originating Summons in Enclosure 1 seeks from this Court inter alia for the following orders: 3    (a) Satu deklarasi diberikan bahawa Defendan-Defendan tidak berhak langsung terhadap wang pampasan yang berjumlah RM 86,307,360.00 yang diterima oleh beberapa bank sebagai Pemegang Gadaian untuk wang penebusan tanah-tanah kepunyaan Plaintif yang mana tanah-tanah tersebut telah dicagarkan kepada bank-bank oleh Defendan Pertama hingga Defendan Ketiga. (b) Satu perintah bahawa Defendan-Defendan membayar wang sebanyak RM 86,307,360.00 kepada Plaintif. (c) Satu deklarasi bahawa berdasarkan maksud sebenar terma-terma di dalam Perjanjian Usahasama antara Plaintif dan Defendan-defendan, hak untuk mendapat wang pampasan tersebut adalah tidak termaktub di dalam skop Perjanjian Usahasama antara Plaintif dan Defendan-Defendan. (d) Satu deklarasi bahawa Perjanjian Usahasama tidak memperuntukkan sebarang hak penerimaan pampasan langsung kepada Defendan- Defendan. (e) Satu deklarasi bahawa defendan-Defendan hanya berhak menuntut gantirugi berdasarkan jumlah yang telah dibelanjakan di dalam 4    mengusahakan tanah-tanah yang terlibat di bawah Perjanjian Usahasama di dalam pengambilan tanah untuk ditaksirkan oleh pihak Mahkamah. (f) Secara alternatif, sekiranya Mahkamah memutuskan untuk menolak permohonan Plaintif di perenggan (b), satu perintah bahawa Defendan-Defendan membayar wang sebanyak RM 25,892,208.00 bersamaan 30% wang pampasan tersebut yang ditawarkan oleh Defendan Keempat melalui surat Defendan Keempat bertarikh 20.1.2009 dan surat peguamcara Defendan Keempat, iaitu Tetuan Manjit Singh Sachdev, Mohamad Radzi & Partners bertarikh 16.1.2009 [2] Basically in the present case, this Court is to determine the appropriate interpretation of numerous documents inclusive of contracts, supplementary contracts as well as terms of charges. In the simplest term, the present dispute is regarding the propriety of utilising compensation monies from a land acquisition under the Land Acquisition Act, to redeem securities from charges, which were charged for loan facilities in furtherance of Joint Venture Agreements for a development project. 5    [3] The Plaintiff {Permodalan Negeri Selangor Berhad (“PNSB”)} in the present case is the investment arm of the State of Selangor. [4] The 1st Defendant (Seribu Baiduri Sdn Bhd), 2nd Defendant (Utuh Sejagat Sdn Bhd) and 3rd Defendant (Jatidiri Gigih Sdn Bhd) are private limited companies incorporated in Malaysian under the Companies Act 1950, while the 4th Defendant (LBS Bina Group Berhad) is a listed company which is the holding company of the other Defendants. All of which are companies in the business of property sales and development. [5] Circa the year 2000, the Defendants have entered numerous Joint Venture Agreements (“JVAs”) with the Plaintiff to jointly develop the land held under title number HS (D) 5386 PT No. 8594 Mukim Tanjung Dua Belas Daerah Kuala Langat Selangor Darul Ehsan (“project land”). (See Exhibits PN-2, PN-5, and PN-7 of the Affidavit in Support for the JVAs). [6] In furtherance to the JVAs, in setting down the terms of payment of the proceeds from the development, the Defendants and the Plaintiff 6    have entered into numerous Supplementary Agreements setting out the terms of payment. Ultimately with regard to the payment of proceeds from the development, the Defendants and the Plaintiff have entered into a Settlement Agreement dated 27.12.2010 (“Settlement Agreement”) (see Exhibit LBS-6 of the Defendant’s First Affidavit in Reply). [7] Consequently, in financing the development project, the Plaintiff has agreed to allow the Defendants to use the project land as security to secure financing for the development project by way of a charge. In pursuance of this mutual consent, the Plaintiff itself has executed numerous Third Party Charges in favour of the Defendants using the project land as security. (See Exhibits LBS-1 to LBS-5 of the Defendant’s Affidavit in Reply for the Charge Documents) [8] In the midst of the above agreements, the State Government vide its acquisition notices proceeded to acquire a part of the project land (“acquired lands”) for the SKVE Highway Project in the year 2008. (See Exhibits PN-9 to PN-13 of the Affidavit in Support for the acquisition notices). 7    [9] The Plaintiff vide its Affidavits has admitted that they accepted the acquisitions but with objections only to the amount of compensation offered by the State Government vide its numerous Forms N. [10] In view of the acquisition, the State Government offered compensation monies (totalling to the amount of RM 86,307,360.00) (“compensation monies”) for the acquired land and has in fact paid the compensation monies directly to the chargees of the project land. [11] This direct payment of the compensation monies to the chargees is the core subject matter of the present dispute. It is simply the Plaintiff’s case that the whole of the compensation monies should be paid to the Plaintiff as the owner of the acquired lands and that the compensation monies are not subject to the JVAs for dissemination as proceeds from the development project. On the other hand, the Defendants contend that the JVAs and the charge documents allow the Defendants to take the compensation monies into account for the calculation of profits under the JVA. Thus, there is actually only one 8    pertinent issue for this Court to determine this present dispute which is: “ Should the compensation monies be taken into account for the final calculation of profits under the JVAs and the Settlement Agreement ? ” SHOULD THE COMPENSATION MONIES BE TAKEN INTO ACCOUNT FOR THE FINAL CALCULATION OF PROFITS UNDER THE JVAs AND THE SETTLEMENT AGREEMENT? [12] The Plaintiff’s case largely hinges on the argument that the compensation monies is not part and parcel of the revenue or proceeds of the sale from the development which shall be disseminated under clause 5.01 of the JVAs which was ultimately superseded by the Settlement Agreement. It is the Plaintiff’s case that although the entitlements under clause 5.01 of the JVAs have been resolved, the compensation monies is beyond and outside the ambit of clause 5.01 of the JVAs and thus, cannot be considered to be resolved and finalized vide the Settlement Agreement. The Plaintiff 9    draws the difference between proceeds as in revenue from sales and also compensation which is allegedly separate from the proceeds in revenue from sales. It is the Plaintiff’s case that the loss of land is personal only to the Plaintiff and the Defendants’ indebtedness to the charge is personal only to the Defendants. Therefore, the Defendants should pay their debts using their own monies and their profits from the sale and not the compensation monies. However, it is this Court’s considered view that it is improper to follow the Plaintiff’s isolated interpretation of the JVAs. The grounds for which are as follows: (i) The conjunctive reading of Clause 2.02.9(b), Clause 5.01, and Clause 28.01.01, of the JVAs [13] The Defendants however, contended that the compensation monies should be accounted for in the final calculation of profits under clause 5.01 of the JVAs. This Clause reads: (i) PNSB shall be entitled to either thirty per centum (30%) of the gross profit from the whole Development in respect of the said Land or a sum to be determined and agreed upon 10    by the parties hereto within three (3) months from the date of this Agreement or such extended period and incorporated into such appropriate agreement… (ii) the Company shall be entitled to the total sales revenue from the Development as a whole less PNSB’s entitlement under clause 5.01 (a)(i) and the overall cost of financing or development cost for the Development” [14] Now, what is clear here is that PNSB is entitled to either 30% of the gross profits or alternatively an determined sum (which later was determined to be RM80,500,000.00 in the Settlement Agreement). [15] The Defendants’ entitlement however would only be determined after deducting from the total revenues: i. PNSB’s portion of the gross profits or determined sum; and ii. Overall cost of financing or development cost for the Development. 11    [16] Another fact which is clear is that, indeed that the financing and costs of the Development is only deductible against the Defendants’ proceeds from the JVAs. [17] However, what remains in dispute is the question whether or not the compensation monies can be taken into account as proceeds especially for the Defendants to calculate their entitlement after deducting its indebtedness to the chargees? [18] Now, in ordinary circumstances, hypothetically if the acquisitions have never occurred, undoubtedly, the Defendants are liable to pay their indebtedness from their own proceeds of sales from the development and their own monies. Thus, the calculation for entitlement is strictly on the proceeds from the sales made and nothing else. Thus, the Defendant can only deduct their indebtedness from their end of the entitlement from the proceeds of sales. This is further supported by clause 2.02.9 (b) (iii) of the JVAs which stipulate: 12    “(b) In the event that the Company shall charge or otherwise encumber the whole or any part of the said Land…the Company hereby covenant and undertake with PNSB that:… (iii) the Company shall discharge or cause to be discharged the charge or any encumbrances on the said Land or any part thereof immediately upon the full settlement of the loan sum at the Company’s own cost and expense.” [19] This is exactly the Plaintiff’s case. The calculation of proceeds does not concern the monies from the compensation at all. The compensation monies are not proceeds from sale from the JVAs. In simpler terms, the compensation monies are not proceeds. [20] However, the procession of the development is far from ordinary. The above covenants are not absolute and without exceptions. The operation and application of the JVAs changes in the occurrence of an acquisition by the State Government which 13    ultimately widens the scope of proceeds in clause 5.01 to include the compensation monies. [21] It is the Defendants’ case that the indebtedness from the charge has mutually benefited even the Plaintiff as it enables the parties to perform the JVAs and turning in profits. The Defendants argues that clause 5.01 must be read together with clause 28.01 of the JVAs which allegedly entitles all parties to the JVAs to the compensation monies. It reads: “28.01 LAND ACQUISITION In the event that the said Land or any part thereof shall be subject to any order or notice for acquisition…each parties entitlement to the compensation monies shall take into account inter alia the stage of the construction work for the Development, the fulfilment of the condition precedent and approvals obtained” 14    [22] With regard to the above clause, the only retort that the Plaintiff contended is not so much on the fact that even the Defendants are entitled to the compensation monies, but instead on the alleged fact that clause 28.01 does not stipulate the manner or percentage in which the parties are entitled to the compensation monies. Furthermore, the Plaintiff contends that the wording of clause 28.01 shows no nexus to clause 5.01’s stipulations as to the parties’ entitlements. [23] However, this retort falls short from negating the fact that indeed parties (inclusive of the Defendants) are entitled to the compensation monies. Thus, at least at this juncture it is safe to conclude that the Defendants are to an indeterminate extent are indeed entitled to the compensation monies. (ii) Reconciling the JVAs’ terms and the terms of the Charge Documents [24] Now, going back to the Defendants’ contention that the Defendants’ entitlement under clause 28.01 can be read under clause 5.01, the 15    Defendants further their contention on this conjunctive reading with the clauses of the charges which the Plaintiff itself has executed. It is without a doubt that the terms of the Plaintiff’s charges all similarly stipulate that in the event of an acquisition by the State Government, the compensation monies shall be paid to the chargees so as to discharge the indebtedness. i. Clause 7.3 of the Third Party Charge in favour of the 2nd Defendant reads: (See Exhibit LBS-1 of the Defendants’ 1st Affidavit in Reply) “All monies received as or by way of compensation of the acquisition of the Said Land or any part thereof shall be applied in or towards the discharge or repayment of the Indebtedness and the Chargor shall, and hereby declares that it will, hold monies so received in trust for the Lender and the Chargor agrees and confirms that the Lender may receive and give a good discharge for all such monies…” 16    ii. Clause 16 of the Third Party Charge in favour of the 2nd Defendant reads: (see Exhibit LBS-2 of the Defendants’ 1st Affidavit in Reply) “Application of Compensation Moneys All moneys received as or by way of compensation in respect of any of the matters referred to in Clause 16 hereof shall be applied in or towards the discharge of repayment of the Monies Hereby Secured and the Borrower and the Chargor shall, and hereby declare that it will, hold all such moneys if paid to and received by the Borrower and/or the Chargor hereunder in trust for the Chargee and the Borrower and/or the Chargor agrees and confirms that the Chargee may receive and give a good discharge for all such moneys” iii. Similarly, all the clauses regarding compensation monies from acquisition in Clause 5(j) of the 2nd Third Party Charge in favour of the 1st Defendant, Clause 7.3 of the Third Party Charge in favour of the 3rd Defendant, and Clause 7.3 of the 17    2nd Third Party Charge in favour of the 3rd Defendant stipulate that: (see Exhibits LBS-3 to LBS-5) a. the compensation monies shall be applied to relinquish and discharge the indebtedness; and b. if the Plaintiff as chargor receives the compensation monies, the Plaintiff declares that it holds the compensation monies in trust for the Chargees. [25] In light of the unanimous clauses above, it is clear without a single doubt that the compensation monies not only can, but MUST be utilised to discharge the debts and the securities and pay the chargees. [26] Thus, what nexus this Court can infer from the above contractual obligation is that the compensation monies indeed should be taken into account to be deducted with the “overall cost of financing or development cost for the Development” (which indubitably 18    includes the financial indebtedness incurred in furtherance of the JVAs, which are the charges). [27] Therefore, by the operation of the clauses above, it advertently includes the compensation monies within the equation and/or formula of calculating the parties’ entitlements within the ambit of clause 5.01. Thus, it further supports the reasonableness of the interpretation that clause 5.01 of the JVAs must be read together with clause 28.01 of the JVAs in the instance of land acquisitions of the any part or the whole of the project land. [28] Thereto, it is this Court’s considered view that Clause 5.01 and Clause 28.01 of the JVAs must be read together. Thus, it is also this Court’s considered view that the compensation monies can be taken into account to conclude the parties’ entitlement under clause 5.01 and subsequently being finalized by the Settlement Agreement. It is immaterial that the Housing Development Account only holds the proceeds from the sales from the JVAs 19    [29] The Plaintiff sought to further their contention to demarcate proceeds and compensation in reference to clause 1.01.12 of the JVAs in which this clause defines the Housing Development Account (“HDA”) to be an account operated by the Defendants in accordance with Section 7A of the Housing Developers (Control and Licensing) Act 1966 for the purposes of the Development. Section 7A (3) of the Housing Developers (Control and Licensing) Act 1966 stipulates that: “The licensed housing developer shall pay into the Housing Development Account of a housing development the purchase monies received by the licensed housing developer from the sale of housing accommodation in the housing development and any other sum or sums of money which are required by regulations made under this Act to be paid into the Housing Development Account.” [30] However, there is nothing within this provision above, which stipulates that the calculation of profits entitlement cannot include compensation monies from land acquisitions. In fact, the payment of 20    the compensation monies directly to the chargees is in line with the provision above as the compensation monies were never deposited into this account. Plaintiff’s failure to object on the payment of the compensation monies to the chargees [31] The Defendants have raised a pertinent observation that the Plaintiff has NOT objected to the direct payment of the compensation monies to the chargees. This failure to object immensely detriments the Plaintiff’s case as it further supports the interpretation of the JVAs and the charge documents that compensation monies from land acquisition may be taken into account in concluding each parties’ entitlement from the JVAs. Notably, a registered owner of an acquired land may object the acquisition vide the issuance of Form N under Section 38(1) of the Land Acquisition Act 1960. One of the many grounds of objection in Form N is “(c) the person to whom it is payable”. 21    [32] However, it is even admitted by the Plaintiff that the only ground of objection in the Plaintiff’s Form N, so on the amount of compensation offered by the State Government. Paragraph 18 of the Plaintiff’s Affidavit in Reply (enclosure 6) avers the following: “Plaintif seterusnya menyatakan bahawa pihak Plaintif mahupun Defendan-Defendan telahpun menyedari bahawa terdapat pengambilan tanah oleh Kerajaan Negeri sejak dari mula lagi warta tersebut digazetkan dan Borang N di bawah Akta Pengambilan Tanah 1960 telah dimasukkan oleh pihak Plaintif. Tujuan kemasukan Borang N tersebut adalah untuk membantah nilai pampasan sebanyak RM86,307,360.00.” [33] It is pertinent that this Court reproduces one of the acquisition notices issued by the State Government which stipulates that the payment shall be made to the chargees and not the Plaintiff: JADUAL [Cabutan yang berkaitan daripada Borang G termasuk segala pemberian kesemua award, jika ada, kepada orang-orang lain yang berkepentingan pada tanah itu.] 22    No. Lot Luasnya Tanah yang Dikehendaki Orang-Orang Yang Berkepentingan Jenis Kepentingan Bahagian Pemberian Untuk Kegunaan Pejabat 26110 (PT22276) Mukim: Tanjung Dua Belas Daerah: Kuala Langat 3.1820 Hektar Permodalan Negeri Selangor berhad – 1/1 bahagian AMFINANCE BERHAD, No. a/k : 8080- 0196-2200- 000 Caw. Jalan Yap Kwan Seng, Kuala Lumpur Tuan Tanah Pemegang Gadaian Tanah; RM – Tanah: RM 12,091,600.00 Penjejasan Tanah: RM 2,730,110.00 Jumlah: RM 14,821,710.00 HS(D) 16024 PTG.SEL.3/KKR/03/ 70 Sj. 1 [34] Clearly seen from the schedule above, the apportionment of the compensation for PNSB as the Tuan Tanah or Land Owner is nil 23    while the apportionment to AMFinance Berhad as the chargee is for the totality of the compensation amount. [35] This schedule in Form H has been issued circa 2007 and the Plaintiff to date has never issued Form N to object the direct payment of the compensation monies to the chargee. [36] Thus, the Plaintiff cannot now deny the mutual state of understanding of the parties (especially the Plaintiff’s) that the JVAs and the charge documents all unanimously stipulate that the compensation monies can be taken into account to conclude the parties’ entitlement under the JVAs. [37] This Court finds valuable guidance from the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. The Federal Court in this case has referred to Lord Denning’s decision in the Amalgamated Investment case which reads: 24    “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” ( emphasis added) [38] Therefore, it would be unfair to allow the Plaintiff to detract and contra their own underlying understanding on the proper interpretation of the JVAs. 25    [39] In fact this Court is in agreement with the Defendants’ submission that the mere reason that the Plaintiff failed to make the proper objection vide Form N, is already fatal to the Plaintiff’s case praying for declaratory relief. The Defendants referred to the Court of Appeal decision in the case of Lembaga Lebuhraya Malaysia v Cahaya Baru Development Bhd [2010] 4 CLJ 419 in which Jeffrey Tan JCA (now FJC) has decided in light of Section 41 of the Specific Relief Act 1950 the following: “[21] Indeed, apart from case law, s. 41 itself provides that "no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so". The position is that the grant of a declaratory order is discretionary and "no action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or nor consequential relief is or could be claimed" (O. 15 r. 16 of the Rules of the High Court), but "no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so" (see Phileoallied Bank (M) Bhd v. Sakuntalathevy Manickavasagam [2007] 1 CLJ 72, where it 26    was held by Mohd Hishamuddin J, as he then was, that "further relief in the above proviso means alternative remedies"). A declaratory order is a relief of last resort. And in the instant case, there was an alternative remedy under the LAA 1960. The respondent could have waited for the reference under s. 38(5) of the LAA 1960 to be made by the Land Administrator. Even if there were no such reference within the specified period by the Land Administrator, as was the instant case, the respondent could have applied to Court (constituted under s. 40A of the LAA 1960) to deal with the said Form N in accordance with s. 38(7) of the LAA 1960. And at the reference, be it under s. 38(5) or 38(7) of the LAA 1960, the Respondent could have raised and argued their issues on the said Form N (for an analogy, see Singapore Para Rubber Estate Ltd v. Pentadbir Tanah Rembau, Negeri Sembilan [2007] 5 CLJ 71, where it was held by Zulkefli FCJ that the issue of non-compliance of s. 14 of the LAA 1960 should have been taken up and argued at the hearing of the objection in the reference under s. 36 of the LAA 1960). Suffice it to say that the application for the declarations should have been refused on that ground alone.” (emphasis added) [40] It is trite law that indeed declaratory reliefs remain inaccessible when an alternative remedy is readily available to be sought for by the Applicant. 27    (See also Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41 (Federal Court) at page 44) Court’s finding [41] In finding that the Defendants’ interpretation of the JVAs is more probable than the Plantiff’s interpretation, this Court is guided by the case of Syarikat Binaan Utara Jaya (A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50. In this case Abdul Malik Ishak, JCA from the available authorities had in para 17 of the Court of Appeal’s judgment, with regard to construction of a contract where the language employed is clear, has made the following propositions: “(a) the Court must give effect to the plain meaning of the words, no matter how distasteful the result may be (The Central Bank of India Ltd. Amritsrar v. The Hartford Fire Insurance Co. Ltd. [1965] AIR Vol. 52, 1288 SC); 28    (b) where the language in the document is unambiguous and clear, the real nature of the document is to be determine solely by looking at its contents, uninfluenced by any intention of the parties ((Nawab Major Sir) Mohammad Akbar Khan v. Attar Singh and Others [1936] AIR Vol. 23, 171 PC); (c) when the minds of the parties are expressed in an unambiguous manner, the Court cannot override the declared intention of the parties unequivocally expressed (K. Appukuttam Panicker and Another v. S.K.R.A.K.R Athappa Chettiar and Others [1966] AIR Vol.53, 303 Kerala); and (d) there is no scope, at all, for drawing upon hypothetical considerations or the supposed intention of the parties when the words contained in the contract are clear and unambiguous (The Union of India v. Kishorilal Gupta and Bros. [1959] AIR Vol. 46, 1362 SC).” [42] It is not necessary for the Court to ascertain the construction of the JVAs and the charge documents beyond the plain words and overall operation of the clauses of both the JVAs and the charge documents. It is clear within the wordings of the terms of the JVAs in clauses 5.01 and 28.01 and also the terms of the charges (regarding land 29    acquisition) that the compensation monies may be taken into account to conclude the parties’ entitlement under the JVAs in section 5.01 of the JVAs. There is no case of ambiguous terms here. Clause 28.01 of the JVAs stipulates that all parties inclusive of the Defendants are entitled to the compensation monies. The numerous clauses of the charge documents then stipulate that compensation monies from acquisitions may be taken into account in the equation or formula of Clause 5.01 in determining the parties’ entitlement under the JVAs. The wording and operation of these clauses are linear and move seamlessly with each other. [43] Even if there is such ambiguity (which this Court disagrees), it is also apparent from the intent (from the Plaintiff’s conduct in not objecting to the direct payment of the compensation monies to the charges), that the compensation monies do fall within the ambit of clause 5.01 of the JVAs. [44] Thus, it is this Court’s considered view that it is clear from the plain meaning of the words in the JVAs, the Settlement Agreement and the Charge Documents, it is irrefutable that the compensation monies 30    from the land acquisition should be taken into account in determining the parties’ entitlement under clause 5.01 of the JVAs and consequently finalized vide the Settlement Agreement. The Settlement Agreement has finalized the parties’ entitlement taking into account the compensation monies from the acquisition [45] It naturally entails that as the Settlement Agreement concludes and finalizes the parties’ entitlement under clause 5.01 of the JVAs, that this finalization puts the issue of the compensation monies to rest (as the compensation monies is part of the equation in calculating the parties’ entitlement). [46] It is in fact important to note that the Settlement Agreement expressly covers the acquisition as the acreage stated in the Agreement is identical to the acreage stated in all of the JVAs which is inclusive of the portions of the acquired land. Thus, when the parties’ entitlement is finalized vide this Settlement Agreement, it also follows that the parties’ entitlements to the compensation monies have also been 31    concluded under the Settlement Agreement. There is no merit in the Plaintiff’s contention that the Settlement Agreement does not include the acquisition of the acquired lands. [47] The terms of entitlement as per the Settlement Agreement are that: (i) Pursuant to Clause 2.2 the Plaintiff will be paid a further RM54,151,705.52 apart from the sums already received by the Plaintiff; and (ii) The Defendants at the request of the Plaintiff agreed in the event of 30% of the profit of the JVAs exceeds the sum of RM80,500,000.00, the difference will be paid to the Plaintiff by the Defendants upon completion of the whole development projects under the agreements and finalization of all accounts. [48] And these terms of payment shall be considered as a full settlement of PNSB’s entitlement under the JVAs under Clause 2.1 of the Settlement Agreement: 32    “2.1 The parties hereby agree that subject always to Additional Entitlement (in the present case referring to the differential sum in case 30% of profits exceeds the determined entitlement sum of RM 80,500,000.00)… the Final Balance Agreed Settlement of PNSB’s (Plaintiff’s) Entitlement by the Developers shall be deemed as the full and final settlement of PNSB Entitlement by the Developers to PNSB…” [49] Thus, it is this Court’s considered view that the Settlement Agreement has indeed concluded the parties’ entitlement under the JVAs taking into account the compensation monies from the land acquisitions There is No Unjust Enrichment to the benefit of the Defendants [50] The elements to prove unjust enrichment has been succinctly laid down in the Court of Appeal decision in Air Express International (M) Sdn Bhd v MISC Agencies Sdn Bhd [2012] 4 MLJ 59: 33    “To determine unjust enrichment, either in relation to s 71 of the Contracts Act 1950 or the common law, the appellant in this appeal must satisfy the following three enquiries: (a) that the respondent was enriched by receiving a benefit; (b) that the benefit was received at the appellant’s expense; and (c) that the retention of the benefit by the respondent was unjust [51] Hypothetically speaking, if the acquisition never arose, then the Defendants would have the opportunity to develop the acquired lands and sell it off for revenues would in turn be translated into larger overall profits. The larger revenues would also in turn translate into the parties’ profits inclusive of the Defendants’ overall returns from the development. The Defendants could have used the same monies from the sale of the developed acquired lands and pay off their indebtedness to the chargees. [52] Now, derivative from the above hypothesis, it is difficult for the Court to follow that there is any unjust enrichment on the part of the 34    Defendants in applying the monies from the compensation to pay off the charges on the project land. The acquisitions have not only deprived the Plaintiff as landowner, but also deprived the Defendants of valuable business opportunities to develop, sell the land for proceeds and ultimately use the same proceeds to pay off their indebtedness to the chargees. In this perspective, it is only fair that upon the Defendants’ deprivation of their business, that the compensation paid from the acquisition be used to pay off their indebtedness, especially considering the fact that the loans acquired was for the security of the project land. It is only just that Defendants are given the opportunity to profit from the totality of the project land when their indebtedness is based on the totality of the project land. Thus, it is also only just that the Defendants be allowed to pay their indebtedness vide the compensation monies, when the acquisition deprived them of the opportunity in proceeds and profits, as the Defendants are no longer able to develop and sell off the acquired lands. [53] Thus, the circumstances of the present case do not even fulfil the 1st element of unjust enrichment. The Defendants received what was 35    entitled to them. They have not received a benefit especially a benefit unjustly retained at the expense of the Plaintiff. [54] Therefore, it is this Court’s considered view that the inclusion of the compensation monies in determining the parties’ entitlement under the JVAs, the Settlement Agreement and the charge documents does not constitute an unjust enrichment to the unwarranted benefit of the Defendants. COURT’S DECISION AND DIRECTIONS [55] In light of all of the above findings, it is this Court’s decision that the Plaintiff has ultimately failed to prove their case. [56] Hence, this Court hereby dismisses the Plaintiff’s claims in terms of (a),(b),(c),(d) and (e) as prayed in Enclosure 1. And in view of the above finding, the Plaintiff’s alternative prayer in prayer (f) in Enclosure 1 must also fail. 36    On the issue of costs [57] Having heard the submissions from the counsels for the Plaintiff and the Defendants, this Court hereby orders the Plaintiff to pay the Defendants sum of RM 15,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 21st day of August, 2015 For the Plaintiff - Tetuan Kamaruzaman Arif Amran & Chong En. P.Y Chong, Pn. Sofiah Omar dan Puan Qairuneesa For the Defendants - Tetuan Zul Rafique & Partners Puan Idza Hajar Ahmad Idzan

Tika 2.6.0

24-1404-12/2014

PLAINTIF 1. TONG AH KAU @ TONG FONG YAM (NO. K/P: 440629-10-5117) 2. TONG FONG KENG (NO. K/P: 670429-10-5925) 3. TONG FOUNG LOK (NO. K/P: 550812-10-5905) DEFENDAN 1. TONG FAUNG ON (NO. K/P: 511203-10-5465) 2. TONG FOON TEUP (NO. K/P: 620225-10-6285) 3. TONG FOONG HUP (NO. K/P: 601110-10-6417)

12/08/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c8bf0437-96af-497d-96e8-ea4583945742&Inline=true

Microsoft Word - 24-1404-12-2014 Tong Ah Kau v Tong Fong Hup 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO: 24-1404-12/2014 Dalam Perkara mengenai Hartanah yang dipegang di bawah Geran Mukim No Hakmilik186, Lot 1220, (dahulunya dikenali sebagai EMR 2813 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor DAN Dalam Perkara mengenai Hartanah yang dipegang di bawah Geran Mukim No Hakmil ik 672, Lot 321, (dahulunya dikenali sebagai EMR 2604 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor DAN Dalam Perkara mengenai Hartanah yang dipegang di bawah Geran Mukim No Hakmilik 749, Lot 1219, (dahulunya dikenali sebagai EMR 2604 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor DAN 2 Dalam Perkara Seksyen-Seksyen 140, 141,141(A), 145(1) dan 417 Kanun Tanah Negara, 1965 DAN Dalam Perkara Seksyen 60(4)(a) Akta Probet dan Pentadbiran 1965 ANTARA 1. TONG AH KAU @ TONG FONG YAM (NO. K/P: 440629-10-5117) 2. TONG FONG KENG (NO. K/P: 670429-10-5925) 3. TONG FOUNG LOK (NO. K/P: 550812-10-5905) … PLAINTIF-PLAINTIF DAN 1. TONG FAUNG ON (NO. K/P: 511203-10-5465) 2. TONG FOON TEUP (NO. K/P: 620225-10-6285) 3. TONG FOONG HUP (NO. K/P: 601110-10-6417) … DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (Saman Pemula-Kandungan 1) 3 [1] Plaintif-Plaintif di dalam kes ini adalah individu-individu bernama Tong Ah Kau @ Tong Fong, Tong Fong Keng dan Tong Foung Lok. Mereka bertiga telah memfailkan Saman Pemula bertarikh 17.12.2014 ini bagi mendapatkan antara- lain perintah-perintah berikut: (a) Bahawa ketuanpunyaan bersama tanah yang dipegang di bawah Geran-geran berikut di antara Plaintif-Plaintif dan Defendan-Defendan ditamatkan:- I) Geran Mukim No Hakmilik 186, Lot 1220, (dahulunya dikenali sebagai EMR 2813 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor. II) Geran Mukim No Hakmilik 672, Lot 321, (dahulunya dikenali sebagai EMR 2604 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Negeri Selangor; I I I) Geran Mukim No Hakmilik 749, Lot 1219, (dahulunya dikenali sebagai EMR 2811 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor (selepas ini dirujuk sebagai “hartanah -hartanah tersebut”). 4 (b) Bahawa Pentadbir Tanah dan Jajahan Sepang, Selangor memecahkan bahagian Hartanah-hartanah berikut:- I) Geran Mukim No Hakmilik 186, Lot 1220, (dahulunya dikenali sebagai EMR 2813 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor; II) Geran Mukim No Hakmilik 672, Lot 321, (dahulunya dikenali sebagai EMR 2604 Mukim Sepang,Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor; I I I) Geran Mukim No Hakmilik 749, Lot 1219, (dahulunya dikenali sebagai EMR 2811 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor (selepas ini dirujuk sebagai “hartanah- hartanah tersebut”). kepada DUA (2) bahagian dimana setiap satu hartanah tersebut mempunyai DUA (2) hakmilik berasingan iaitu SATU (1) hakmilik bagi Plot B sebagaimana yang ditandakan dalam pelan cadangan. [2] Pada dasarnya Plaintif-Plaintif di dalam kes ini memohon kepada Mahkamah ini untuk menamatkan ketuanpunyaan 5 bersama Plaintif-Plaintif dan Defendan-Defendan ke atas hartanah-hartanah tersebut menurut seksyen 145(1) Kanun Tanah Negara 1965 (KTN). [3] Defendan-Defendan juga adalah individu-individu bernama Tong Faung On,Tong Foon Teup dan Tong Foong Hup. [4] Paintif-Plaintif dan Defendan-Defendan adalah tuanpunya bersama berdaftar hartanah-hartanah berikut; i . Geran Mukim No Hakmilik 186, Lot 1220, (dahulunya dikenali sebagai EMR 2813 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor. ii. Geran Mukim No Hakmilik 672, Lot 321, (dahulunya dikenali sebagai EMR 2604 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Negeri Selangor; i i i. Geran Mukim No Hakmilik 749, Lot 1219, (dahulunya dikenali sebagai EMR 2811 Mukim Sepang, Tempat Kuala Sepang Kechil, Mukim Sepang, Daerah Sepang, Negeri Selangor (selepas ini dirujuk sebagai “hartanah -hartanah tersebut”). 6 [5] Keluasan hartanah-hartanah tersebut adalah 5.8932 hektar dan merupakan tanah pertanian. [6] Saman Pemula Plaintif-Plaintif adalah disokong Afidavit Sokongan yang diikrarkan oleh Plaintif-Plaintif pada 15.12.2014 dan Afidavit Balasan mereka yang diikrarkan pada 17.2.2015. [7] Melalui satu Perintah Pembahagian bertarikh 11.10.2006 yang diberikan oleh YA Dato’ Alizatul Khair bte Osman Khairuddin atas permohonan Plaintif Pertama yang memerintahkan bahawa harta pesaka Tong Ah Kin (si mati) yang merangkumi hartanah-hartanah tersebut dan beberapa hartanah lain dipindahmilik kepada benefisiari-benefisiari sebagaimana yang dihasratkan di dalam Deed of Family Arrangement bertarikh 3.8.2004. Dengan pindahmilik- pindahmilik yang telah dilaksanakan, Plaintif-Plaintif kini memegang 24/45 bahagian bagi setiap hartanah, manakala Defendan-Defendan memegang bahagian selebihnya bagi setiap hartanah iaitu 21/45 bahagian. 7 [8] Plaintif-Plaintif berkeinginan untuk mempunyai geran hakmilik berasingan ke atas hartanah-hartanah tersebut, namun kehendak Plaintif-Plaintif tidak dipersetujui oleh Defendan- Defendan. Atas keengganan Defendan-Defendan tersebut, Plaintif-Plaintif telah memohon Mahkamah ini menurut seksyen-seksyen 140,141,141(A),145(1) dan 417 Kanun Tanah Negara 1965 bagi menamatkan ketuanpunyaan bersama ke atas hartanah-hartanah tersebut dan hakmilik- hakmilik berasingan dikeluarkan sepertimana pelan cadangan yang disediakan oleh Juruukur Berlesen di Eksibit “TAK-3”, Afidavit Sokongan (Kandungan 2). [9] Defendan-Defendan telah menentang permohonan Plaintif- Plaintif dan di dalam Afidavit Balasan Defendan Ketiga (Kandungan 4) yang diikrarkan oleh Tong Foong Hup pada 5.2.2015, Defendan-Defendan telah menimbulkan alasan- alasan berikut: i. Saman Pemula ini akan mengecewakan beberapa permohonan-permohonan yang difailkan berkaitan pesaka Tong Su Kin (si mati). Defendan Ketiga di dalam Saman Pemula 24-2491-2010 Mahkamah Tinggi Shah 8 Alam telah memohon untuk melantik dua pemegang amanah bagi mentadbir segala pendapatan dan perbelanjaan pesaka Tong Su Kin (si mati). Manakala di dalam Saman Pemula 24-2769-2010, Plaintif Pertama (Tong Ah Kau @ Tong Fong Yam) yang merupakan Pentadbir Pesaka Tong Su Kin (si mati) telah memohon untuk menjual dan mengagihkan segala harta pesaka si mati termasuklah hartanah-hartanah tersebut. Di dalam Saman Pemula 24-3010-2010 pula Tong Foon Teup membawa tindakan terhadap Tong Fong Keng & Tong Feung Lok di mana, Plaintif Kedua dan Ketiga sebagai wasi dan pemegang amanah harta pesaka Chin Son Nyuk, Si Mati hendaklah mengemukakan penyata akaun bagi segala perbelanjaan pengkebumian Chin Sou Nyuk, Si Mati dan hutang harta pesaka Chin Sou Nyuk. Manakala Saman Pemula No. 24-1735-2011 di antara Tong Foon Teup terhadap Tong Fong Keng & Tong Feung Lok (Plaintif Kedua dan Ketiga) sebagai wasi dan pemegang amanah harta pesaka Chin Son Nyuk, Si Mati dalam tindakan ini untuk milikan kosong sebuah hartanah. 9 i i. Tidak ada perbincangan yang telah diadakan oleh pihak- pihak sebelum permohonan ini dibuat dan cadangan pelan yang dikemukan oleh Plaintif-Plaintif. [10] Sebelum Mahkamah ini menimbangkan alasan-alasan yang telah ditimbulkan oleh Defendan-Defendan bagi menentang permohonan Plaintif-Plaintif, Mahkamah ini terlebih dahulu akan menimbangkan isu undang-undang yang telah dibangkitkan oleh Defendan-Defendan yang mana menurut Defendan-Defendan Mahkamah ini tidak mempunyai bidangkuasa untuk mendengar permohonan Plaintif-Plaintif. [11] Bersandarkan kepada keputusan YA Dato’ Hishammudin bin Mohd Yunus (YA pada ketika itu) di dalam kes S Subramaniam & Ors v. Inderjit Kaur Karnail Singh & Anor [1997] 3 MLRH 70, peguam Defendan-Defendan telah menghujahkan bahawa Mahkamah ini tidak mempunyai bidangkuasa untuk mendengar permohonan Plaintif-Plaintif kerana sebelum Plaintif-Plaintif memfailkan permohonan ini, Plaintif-Plaintif sepatutnya memohon kepada Pentadbir Tanah untuk pecah bahagian menurut seksyen 142 KTN. 10 [12] Di dalam kes S Subramaniam & Ors, YA Dato’ Hishammudin bin Mohd Yunus telah mengambil pendekatan berbeza daripada YA K.C Vohrah di dalam kes Ku Yan Ku Abdullah v. Ku Idris Ku Ahmad & Ors [1991] 2 MLRH 310 dengan berkata berikut:- “With the greatest respect I disagree with the above view. Whilst i t is true that s. 145(1) confers on the Court the power to make an order for parti t ion, at the same time, however, it is also important to observe that i t is a l imited power, that is to say, the power is confined only to the circumstances as specified in paras. (a) and (b) of sub-s. (1). In the present case, I shall confine only to para. (a) as the instant application is purportedly made under this paragraph. It is pertinent to note that under para. (a), the power of the Court to make an order for parti t ion only arises in a situation where "any of the co-proprietors will not join in, nor consent to the making of, an application for partition". This means that the co-proprietor who comes to the Court invoking para. (a) of s. 145(1) must satisfy the Court that the circumstances of his case satisfy the requirement of that paragraph. This means he has to satisfy the Court that init ial ly he intended to apply to the Land Administrator for parti t ion under s. 142 but was faced with the situation where he could not get the co-operation of the other co-proprietors. 11 However, in a case where the co-proprietor who is desirous of having the land parti t ioned is the holder of the majority share, such a situation can never arise. This is because, as I have held, he cannot apply to the Land Administrator for parti t ion under s. 142 as if he is the holder of the minori ty share and thus takes steps to bring in as co- applicants, or to obtain the consent of, all the other co-proprietors; and thereafter in the event one of the co-proprietors refused to join in or to consent, to apply to the Court under s. 145(1)(a). As the holder of the majority share, he can only apply to the Land Administrator under s. 141A read with s. 142. When he applies under these provisions, he is not required to obtain the consent of the other co- proprietor(s), and I wish to reiterate that this exemption is made very clear by s. 142(1)(e) . If he is so exempted, then the question of the consent of the other co-proprietor(s) does not arise. Now, if the question of consent of the other co-proprietor(s) does not arise in respect of the application of a co-proprietor who is the holder of the majority share, i t follows therefore that para. (a) of s. 145(1) has no relevance to such co-proprietor. If I may add further, i t is also my respectful view that in Ku Yan the plaintiff, after the rejection, should not have made an application to the High Court under s. 145(1)(a) . Instead, he should have appealed to the High Court against the decision of the State Director under s. 418 of the NLC.” 12 [13] Untuk itu molek kiranya seksyen 140 dan seksyen 141(A) Kanun Tanah Negara (KTN) 1965 dirujuk. Seksyen 140 KTN memperuntukkan berikut: 140 Powers of co-proprietors to partition with approval f State Director, Land Administrator or State Authority (1) Any alienated land which is held under Registry or Land Office title by two or more persons as co-proprietors may, by agreement between those persons and with approval under this Chapter of the State Director or Land Administrator, as provided by subsection (2), be partitioned– (a) so as to vest in each of them, under a separate title, a portion of the land of an area proportionate as nearly as may be to his undivided share in the whole; or (b) where two or more of them are to continue as co- proprietors, so as to vest – (i) in the remaining co-proprietor or, as the case may be, each of such co-proprietors, under a separate title, a portion of the land of an area proportionate as nearly as may be to his undivided share in the whole; and 13 (ii) in the continuing co-proprietors the remainder of the land under a separate title. (2) In the absence of any direction to the contrary by the State Authority, the approval required by subsection (1) shall be given – (a) by the State Director in the case of land held under Registry title; and (b) by the Land Administrator in the case of land held under Land Office title. (3) If the alienated land referred to in subsection (1) is subject to the category of “agriculture” or to any condition requiring its use for an agricultural purpose and is – (i) two fifths of a hectare; or (ii) less than two-fifths of a hectare; the co-proprietors referred to in that subsection may, by agreement between them and with the approval of the State Authority as provided by section 143A, partition the land. [14] Seksyen 141 KTN pula memperuntukkan berikut: 14 141 Conditions for approval of partition (1) No partition shall be approved by the State Director or, as the case may be, Land Administrator unless – (a) each of the co-proprietors has either joined in, or consented to the making of, the application for its approval; (b) in the opinion of the State Director or, as the case may be, the Land Administrator, the area to be vested – (i) in each co-proprietor pursuant to paragraph (a), or subparagraph (i) of paragraph (b), of subsection (1) of section 140 is as nearly as may be proportionate to his undivided share in the whole; or (ii) in the continuing co-proprietors pursuant to subparagraph (b) of subsection (1) of section 140 is as nearly as may be proportionate to the total of their undivided shares in the whole; and (c) the conditions specified in subsection (1) of section 136 for approval of the sub-division of land are mutatis mutandis, with the omission of paragraph (ca) and subparagraph (f)(i)of that subsection, satisfied. 15 (2) Subsection (2) of section 136 shall, in cases of partition, apply with respect to the condition specified in paragraph (h) of subsection (1) of that section with the omission there from of sub-paragraph (ii) of paragraph (b). (3) The State Director or, as the case may be, Land Administrator may, in the case of an application for approval of the partition of any land subject to the category “agriculture” waive the condition specified in paragraph (h) of subsection (1) of section 136. [15] Seksyen 141A KTN pula memperuntukkan bahawa; Application for partition by any co-proprietor Notwithstanding the provisions of sections 140 and 141, any co-proprietor where other co-proprietors neither join in nor consent to the making of the application may apply for approval to partition the land. [16] Seksyen 141A KTN di atas jelas memperuntukkan bahawa mana-mana tuan tanah bersama (co-proprietors) di dalam sebidang tanah yang mana tuan tanah bersama yang lain enggan atau tidak bersetuju untuk memecahmilik tanah tersebut bolehlah (may apply) membuat permohonan kepada pentadbir tanah untuk kebenaran memecah milik tanah itu. 16 [17] Penelitian ke atas perkataan yang digunakan di dalam seksyen 141A ini adalah “may apply” atau “bolehlah memohon”. Justeru, Mahkamah ini berpandangan bahawa perkataan “bolehlah” itu bukanlah satu yang mandatori yang mewajibkan mana-mana tuan tanah bersama (co-proprietor/s) mestilah memohon kepada pentadbir tanah untuk kebenaran memecah milik tanah itu. Perkataan “may” atau “bolehlah” sesuatu yang boleh menjadi opsyen kepada mana-mana tuan tanah bersama (co-proprietor/s) untuk memecahmilik tanah mereka. Dengan yang demikian, peruntukkan seksyen 141 A KTN ini adalah sesuatu yang bersifat atau berbentuk “permissive” atau membolehkan. (Sila lihat: Ku Yan bte Ku Abdullah v Ku Idris bin Ku Ahmad & Ors (1991) 3 MLJ 439.) [18] Di dalam hal pecahmilik atau pecah bahagian ini, penamatan pemilikan bersama tanah oleh tuanpunya-tuanpunya tanah tidak boleh diasingkan atau dipisahkan. Seksyen 145 KTN telah memperuntukkan bahawa di dalam keadaan di mana tuanpunya-tuanpunya bersama yang berkeinginan untuk menamatkan pemilikan bersama tanah yang dipegang mereka, mereka boleh berbuat demikian dengan memohon 17 kepada mahkamah. Seksyen 145 KTN dengan jelas memperuntukkan berikut: Power of Court to facilitate termination of co-proprietorship (1) Where, in the case of any land vested in co-proprietors – (a) any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter, or (b) by reason of the operation of paragraph (f) of subsection (1) of section 136 (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this chapter, the Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co- proprietorship to be terminated. (2) Without prejudice to the generality of the power conferred by subsection (1), the Court may on any application under that subsection order – (a) that, subject to the making between the co-proprietors of such payments as the Co-proprietors of such payments as the Court may consider equitable having regard to the comparative values of the individual portions thereby 18 proposed, any application for partition made by one or more of the co-proprietors in the terms specified in the order shall be deemed for the purposes of this chapter to have been made by them all; (b) that the undivided share of any of the co-proprietors be transferred on the terms specified in the order to the other co-proprietors be transferred on the terms specified in the order to the other co-proprietors, or to any of them; or (c) that the land be sold (Penekanan oleh Mahkamah ini) [19] Pembacaan Mahkamah ini ke atas peruntukkan seksyen 145 KTN ini adalah bahawa mahkamah mempunyai kuasa untuk membantu “facilitate” penamatan ketuanpunyaan bagi pemilik-pemilik bersama tanah yang berhasrat berbuat demikian. [20] Mahkamah ini merujuk kepada kes Ku Yan bte Ku Abdullah v Ku Idris bin Ku Ahmad & Ors (1991) 3 MLJ 439. Di dalam kes Ku Yan bte Ku Abdullah ini, YA K.C Vohrah (YA pada ketika itu) telah berhadapan dengan suatu permohonan oleh Plaintif yang memegang 5/7 bahagian yang tidak dibahagikan dalam sebidang tanah di negeri Kedah, manakala Defendan memegang sebahagian bakinya. Plaintif telah memohon 19 kepada Pentadbir Tanah untuk tanah itu dipecah milik. Permohonan Plaintif itu telah ditolak oleh Pengarah Tanah dan Galian yang menasihatkan Plaintif supaya memohon kepada Mahkamah Tinggi untuk perintah pemecahan milik tanah itu. Plaintif kemudiannya membuat permohonan sedemikian kepada Mahkamah Tinggi di bawah seksyen 145 Kanun Tanah Negara 1965 dengan menunjukkan satu pelan cadangan. Selepas itu permohonan itu dipinda untuk memasukkan, antara lainnya, satu pelan cadangan yang baru. Di hadapan YA KC Vohrah, Defendan di dalam menentang permohonan Plaintif telah menghujahkan bahawa mahkamah tidak mempunyai bidang kuasa untuk mempertimbangkan permohonan yang baru itu. Menurut peguam Defendan, memandangkan terdapat satu pelan cadangan yang baru, Plaintif seharusnya memohon kepada pentadbir tanah untuk memecah milik tanah itu menurut seksyen 141A KTN terlebih dahulu sebelum permohonan Plaintif boleh dipertimbangkan oleh mahkamah. Namun, YA K.C.Vohrah telah menolak bantahan Defendan dan telah memutuskan berikut: 20 (1) Section 141A of the Code does not compel a co-proprietor holding the majority share in a piece of land to apply to the land administrator for approval to partition the land; it is merely a permissive section. (2) A co-proprietor having the majority share in a piece of land thus is not barred from applying to the High Court under sub-s (1) of s 145 of the Code to have the co-proprietorship terminated and the land partitioned under s 145 on the general ground that a co-proprietor will not join in nor consent to the making of an application for partitioning. [21] Di dalam kes Gopal @ Sinnathambi A/L Ramasamy V Narayannan A/L Ramasamy [1995] MLJU 87, YA Low Hop Bing (YA pada ketika itu) telah membenarkan permohonan oleh seorang tuanpunya bersama tanah (Pemohon) yang tidak berbahagi yang tidak bersetuju dengan cara penggunaan tanah tersebut oleh Responden (tuanpunya tanah bersama yang satu lagi). Pemohon telah memohon untuk menamatkan ketuanpunyaan bersama menurut seksyen 145 KTN. 21 [22] Mahkamah ini berpandangan yang sama dengan apa yang telah diputuskan di dalam kes-kes Ku Yan bte Ku Abdullah dan Gopal @ Sinnathambi A/L Ramasamy. [23] Adalah menjadi pandangan Mahkamah juga bahawa seksyen 145 KTN sememangnya telah memperuntukkan Mahkamah bidangkuasa untuk menamatkan ketuanpunyaan bersama di dalam keadaan-keadaan yang diperlukan. Justeru itulah perkataan yang digunakan adalah facilitate ataupun memudahkan. Dalam ertikata lain Mahkamah ini mempunyai bidangkuasa pemudahcara bagi memutuskan persoalan bagi keadaan-keadaan di mana tuanpunya tanah bersama berhasrat untuk memecah bahagian atau memecahmilik tetapi ada pula tuanpunya tanah bersama yang lain enggan berbuat demikian atau tidak memberi persetujuan untuk pemecahan milik. [24] Berdasarkan alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini bahawa isu undang-undang yang dibangkitkan peguam Defendan tidak berasas dan tidak boleh dipertegakkan dan semestinya gagal. 22 [25] Berbalik kepada alasan-alasan Defendan-Defendan bagi menentang permohonan Plaintif-Plaintif. Alasan i [26] Mahkamah ini bersetuju dengan Plaintif-Plaintif bahawa apabila YA Hadhariah binti Syed Ismail menolak permohonan Plaintif Pertama pada 16.12.2012, maka kesannya adalah bahawa Perintah Pembahagian bertarikh 11.10.2006 adalah kekal dan tidak berubah. Dengan perintah bertarikh 11.10.2006 masih sah dan berkuatkuasa, maka pembahagian-pembahagian yang dibuat ke atas hartanah- hartanah tersebut ke atas Plaintif-Plaintif dan Defendan- Defendan adalah kekal dan boleh dikuatkuasakan. Alasan Defendan-Defendan yang mengatakan bahawa sekiranya Mahkamah ini membenarkan permohonan Plaintif-Plaintif ini ianya akan mengecewakan permohonan-permohonan lain adalah tidak berasas dan tidak mempunyai merit. Mahkamah ini berpandangan bahawa, apa yang penting adalah Perintah Pembahagian bertarikh 11.10.2006 telahpun membahagikan hak-hak yang jelas dan nyata kepada waris-waris atau benefisiari-benefisiari pesaka Tong Ah Kin ke atas hartanah- hartanah tersebut. 23 [27] Beberapa tindakan mahkamah yang dinyatakan oleh Defendan-Defendan tidak ada kena mengena dan langsung tidak akan dikecewakan oleh permohonan Plaintif-Plaintif di sini. [28] Apa yang cuba dibangkitkan oleh Defendan-Defendan sebenarnya adalah memandangkan ketuanpunyaan bersama hartanah-hartanah tersebut Plaintif-Plaintif dan Defendan- Defendan adalah bahagian yang tidak dibahagi atau undivided shares maka plot-plot lokasi tanah tuanpunya- tuanpunya bersama adalah tidak ditentukan. Menurut Defendan-Defendan lagi pelan cadangan (Eksibit“TAK-3”, Kandungan 2) yang dikemukakan oleh Plaintif-Plaintif adalah tidak adil dan memihak kepada Plaintif-Plaintif. Seterusnya Defendan-Defendan menyatakan pecahan bahagian bagi Geran A dan B adalah serupa tetapi di bahagian C ianya bertentangan. Adalah menjadi tegasan Defendan-Defendan bagi pecahan lokasi yang adil, Hartanah (Plot A) haruslah berada disudut yang sama bagi setiap geran atau hartanah A,B, dan C. 24 [29] Di dalam hal ini, Mahkamah ini bersetuju dengan hujahan Plaintif-Plaintif bahawa tidak ada sebarang ketidakadilan timbul terhadap Defendan-Defendan atas pelan cadangan “TAK-3” kerana pemecahan bahagian yang dicadangkan di dalam pelan cadangan “TAK-3” tersebut adalah berdasarkan syarat dan bahagian yang didaftarkan di dalam suratan hakmilik hartanah-hartanah tersebut yang tidak langsung menjejaskan syer atau bahagian Defendan-Defendan. Di samping itu, pelan cadangan “TAK-3” tersebut juga telahpun disediakan oleh Juruukur yang berlesen. Alasan ii [30] Di dalam kes ini, Plaintif-Plaintif di dalam Afidavit Sokongan mereka telah menegaskan bahawa di dalam usaha menyelesaikan perkara ini, beberapa sesi perbincangan telah diadakan bagi berunding dengan Defendan-Defendan, namun Defendan-Defendan masih enggan bersetuju dengan cadangan Plaintif-Plaintif. Keengganan Defendan-Defendan yang tidak bersetuju untuk memecah bahagian tersebut telah menyebabkan Plaintif-Plaintif membuat permohonan ini kepada Mahkamah bagi menamatkan ketuanpunyaan hartanah-hartanah tersebut dan seterusnya proses pecah 25 tanah dapat dilakukan dengan adil dan sewajarnya. Malahan, menurut Plaintif-Plaintif lagi, Encik Lim dari Tetuan Lim Ram & Associates telah pun menyediakan borang pindakmilik 14A dan telah meminta kesemua Defendan hadir dan menandatangani borang 14A tersebut. Walaubagaimanapun, ketiga-tiga Defendan telah enggan untuk menandatangani borang 14A tersebut dan sekaligus telah menolak untuk menerima hak masing-masing. [31] Justeru, adalah menjadi dapatan Mahkamah ini bahawa Defendan-Defendan tidak mempunyai sebab yang kukuh untuk menghalang permohonan Plaintif-Plaintif di dalam Saman Pemula ini. [32] Perlu dinyatakan disini juga Plaintif Pertama adalah pentadbir pesaka bagi pesaka si mati dan seperti yang diperuntukkan di bawah Seksyen 60(4)(a) Akta Probet dan Pentadbiran 1959, sebagai pentadbir pesaka, Plaintif Pertama boleh juga memfailkan permohonan ini bagi mendapatkan perintah-perintah sepertimana di dalam permohonan ini. Seksyen 60(4)(a) Akta Probet dan Pentadbiran 1959 memperuntukkan berikut: 26 60. Power of personal representative to dispose of property (4)An administrator may not, without the previous permission of the Court – (a) mortgage, charge or transfer by sale, gift exchange or otherwise any immovable property situate in any State and for the time being vested in him; or (b) lease any such property for a term exceeding five years. [33] Berdasarkan alasan-alasan di atas, Mahkamah ini membenarkan permohonan Plaintif-Plaintif di dalam Kandungan 1 dan memerintahkan Defendan-Defendan membayar kos sebanyak RM5000.00 kepada Plaintif-Plaintif. .......................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 12 haribulan Ogos 2015 27 Peguam Plaintif-Plaintif - Tetuan Ahmeena Aziz & Partners Cik Zeti Zulkifli Puan Ahmeena Aziz Peguam Defendan Ketiga - Tetuan Lee & Lim Encik Lim Kien Huat Encik Tang Keen Cheong

Tika 2.6.0

25-67-2011

PEMOHON 1. CITRASAMA PROJEK SDN BHD 2. BENUA EHSAN SDN BHD RESPONDEN 1. PERMODALAN NASIONAL SELANGOR BHD (PNSB) 2. SETIAUSAHA KERAJAAN NEGERI SELANGOR (PERBADANAN)/'STATE SECRETARY SELANGOR ( INCORPORATION)' 3. KERAJAAN NEGERI SELANGOR 4. MAJLIS PERBANDARAN SUBANG JAYA (MPSJ) 5. LEMBAGA RAYUAN NEGERI SELANGOR

06/08/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cf481cbb-99d7-480f-83cc-96f0b473e301&Inline=true

Microsoft Word - 25-67-2011 CITRASAMA PROJEK SDN BHD v PNSB   1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO: 25-67-2011 Dalam Perkara Permohonan Kebenaran Merancang Bagi Cadangan Projek Perumahan dan perniagaan Secara Usahasama Antara Setiausaha Kerajaan Negeri Selangor (Perbadanan) dengan Tetuan Permodalan Negeri Selangor Berhad (PNSB), Tetuan Citrasama Projek Sdn Bhd dan Tetuan Benua Ehsan Sdn Bhd di Lot 6468, Permatang Kumbang, Mukim Daerah Petaling, Selangor Darul Ehsan untuk Tetuan Permodalan Negeri Selangor Berhad (PNSB), Tetuan Citrasama Projek Sdn Bhd dan Tetuan Benua Ehsan Sdn Bhd; Dan Dalam Perkara Keputusan Majlis Perbandaran Subang Jaya bertarikh 14.10.2008 yang dikomunikasikan pada 14.11.2008, yang menolak Permohonan Kebenaran Merancang bagi Cadangan Projek Perumahan dan Perniagaan Secara Usahasama Antara Setiausaha Kerajaan Negeri Selangor (Perbadanan) dengan Tetuan Permodalan Negeri Selangor Berhad (PNSB), Tetuan Citrasama Projek Sdn Bhd dan Tetuan Benua Ehsan Sdn Bhd di Lot 6468, Permatang Kumbang, Mukim Daerah Petaling, Selangor Darul Ehsan untuk Tetuan Permodalan Negeri Selangor Berhad (PNSB), Tetuan Citrasama Projek Sdn Bhd dan Tetuan Benua Ehsan Sdn Bhd; Dan Dalam Perkara Perintah Persetujuan bertarikh 20.4.2010 dalam Prosiding Rayuan no. LR Sel. (100)/ MPSJ/09-/2008(70) di antara Tetuan Permodalan Negeri Selangor Berhad (PNSB), Tetuan Citrasama Projek Sdn Bhd dan Tetuan   2    Benua Ehsan Sdn Bhd yang direkodkan di Lembaga Rayuan Selangor; Dan Dalam Perkara Keputusan Lembaga Rayuan Selangor yang dimaklumkan pada 30.3.2011 bahawa keseluruhan prosiding Rayuan No. LR Sel. (100)/MPSJ/09-2008(70) dibatalkan; Dan Dalam Perkara Keputusan Lembaga Rayuan Selangor bertarikh 8.4.2011 dalam prosiding Rayuan No. LR Sel. (100)/MPSJ/09-2008(70) yang mengekalkan keputusan Lembaga Rayuan Selangor (yang dimaklumkan pada 30.3.2011) bahawa keseluruhan prosiding Rayuan No. LR Sel. (100)/MPSJ/09-2008(70) dibatalkan; Dan Dalam Perkara Keputusan Majlis Mesyuarat Kerajaan Negeri Selangor (MMKN) yang dimaklumkan oleh Permodalan Negeri Selangor Berhad (PNSB) melalui surat bertarikh 25.4.2011 bahawa Majlis Mesyuarat Kerajaan Negeri Selangor (MMKN) yang disahkan melalui kertas EXCO-MTES No. 6/27/2010 bertarikh 25.8.2010 telah bersetuju untuk membatalkan projek perumahan yang dimajukan secara usahasama oleh Perbadanan Setiausaha Kerajaan Selangor dan Citrasama Projek Sdn Bhd dan Benua Ehsan Sdn Bhd kerana perjanjian telah tamat tempoh; Dan Dalam perkara Bahagian III, IV dan VI Akta Perancangan Bandar dan Desa 1976 dan Rancangan Struktur Negeri Selangor 2020; Dan   3    Dalam Perkara Kaedah-Kaedah Lembaga Rayuan 1999 dan garis panduan-garis panduan perancangan bagi pembangunan di kawasan bukit dan tanah tinggi; Dan Dalam Perkara Permohonan Untuk Perintah Certiorari dan Mandamus di bawah Aturan 53, Kaedah 2(1) Kaedah-kaedah Mahkamah Tinggi 1980 dan Perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964; Dan Dalam Perkara Permohonan Untuk Deklarasi di bawah Aturan 53, kaedah 2(2) Kaedah-Kaedah Mahkamah Tinggi 1980; Dan Dalam Perkara Permohonan Semakan Kehakiman di bawah Aturan 53, Kaedah-kaedah Mahkamah Tinggi 1980; Dan Dalam Perkara Permohonan Perlaksanaan Spesifik di bawah Akta Relif Spesifik 1950. ANTARA 1. CITRASAMA PROJEK SDN BHD ... PEMOHON- 2. BENUA EHSAN SDN BHD PEMOHON DAN 1. PERMODALAN NASIONAL SELANGOR BHD (PNSB) 2. SETIAUSAHA KERAJAAN NEGERI SELANGOR (PERBADANAN)/ ‘STATE SECRETARY SELANGOR (INCORPORATION)’   4    3. KERAJAAN NEGERI SELANGOR 4. MAJLIS PERBANDARAN SUBANG JAYA (MPSJ) ... RESPONDEN- 5. LEMBAGA RAYUAN NEGERI SELANGOR RESPONDEN GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] The Applicants in the present case are Citrasama Projek Sdn Bhd (1st Applicant) and Benua Ehsan Sdn Bhd (2nd Applicant). Both the Applicants hereinafter will be referred to as “the Applicants”. [2] The Applicants here apply for reliefs in declaration, certiorari, mandamus and injunctions against a series of administrative decisions rendered by the Respondents in relation to a development project and a series of Joint Venture Agreements entered into between the Applicants and the 1st and 2nd Respondents. [3] There are five (5) respondents in this case. They are namely; 1st Respondent - Permodalan Negeri Selangor Bhd (PNSB)   5    2nd Respondent - Setiausaha Kerajaan Negeri Selangor (Perbadanan)/ ‘State Secretary Selangor (Incorporation)’ 3rd Respondent - Kerajaan Negeri Selangor 4th Respondent - Majlis Perbandaran Subang Jaya (MPSJ) 5th Respondent - Lembaga Rayuan Negeri Selangor. [4] The Respondents have been alleged by the Applicants to have rendered improper decisions in vitiating the project with the Applicants, to which, the Applicant is challenging vide the present application for Judicial Review under Order 53 of the Rules of Court 1980. The declaratory reliefs are generally for declarations of alleged improper decisions. The certiorari reliefs are generally to quash the Respondents’ alleged improper decisions and improper decision making processes while the mandamus reliefs are generally to order the Respondents to perform their obligations under the Project and Joint Venture Agreements. Meanwhile, the reliefs in injunctions are to restrain the Respondents from dealing with the lands involved in the development against the interest of the Applicants.   6    [5] The Applicants are private limited companies incorporated in Malaysia under the Companies Act 1951 which are involved in the business of property development. [6] The 1st Respondent (“PNSB”) is the investment arm incorporated and operated under the 3rd Respondent (“State Government”). [7] The 2nd Respondent is a statutory body incorporated pursuant to Enakmen Setiausaha Kerajaan Negeri Selangor (Perbadanan) 1955 (“State Secretary”). [8] The 3rd Respondent is the Selangor State Government (“State Government”) [9] The 4th Respondent, Majlis Perbandaran Subang Jaya, is the local planning authority for the district of Subang Jaya, and the area of Permatang Kubang, Mukim Daerah Petaling, all of which is within the locality of the state of Selangor (“MPSJ”).   7    [10] The 5th Respondent is a statutory body established pursuant to Section 36 of the Town and Country Planning Act 1976 (Act 172) which among others hears appeals from the 4th Respondent’s decisions (“Appeal Board”). [11] Now, there were a series of Joint Venture Agreements (“JVAs”) which were entered into circa the year 1995 of which, ultimately the Applicants and PNSB as well as the State Secretary has agreed undertake a development project (“development project”) of an approximately 168.27 acres of land in Lot 6648, Mukim Petaling, Daerah Petaling, Selangor Darul Ehsan, owned by PNSB and the State Secretary (“project land”). [12] The State Secretary has vide a Power of Attorney dated 24.6.1992 assigned all of its rights and powers on the said project land to PNSB. [13] This Court is mindful that there were numerous presentations of layout plans and applications for planning permission stretching from the year 1998 until the year 2008. This Court is of the preliminary view that it is unnecessary for the Court to categorically elaborate in   8    this judgment every single applications and rejections historically. Nonetheless, in due course of this Court’s findings, judgment and final order, this Court will delve into the mass of applications, approvals and rejections of plans with regards to the project land and the JVAs as and when this Court deems necessary where these applications are relevant. [14] Here are the facts most recent in time which led to the Cause of Action in the present case: 1st and 2nd Applications for Planning Permission [15] By the year 2004, MPSJ has authorised the 1st and 2nd Planning Permission presented by the Applicants. In fact, upon the same approvals the Respondents have issued 141 individual titles to the Applicants for the project land. The Applicants have even paid the premium for the issuance of all the 141 individual titles. (See Exhibit A-3, Enclosure 2).   9    [16] MPSJ then have declined the Applicants’ application for extension of the 2nd Planning Permission on the grounds that the Jawatankuasa Teknikal Pembanguan Kawasan Sensitif Alam Sekitar (“JTPKSAS”) found that the project land comprises of 70% class IV slopes (slopes) in which developments are not allowed. (See Exhibit A-7, Enclosure 7). [17] However, this Court must highlight that the assertion above is factually inaccurate as it was submitted by the Applicants through their Geotechnical Assessment Report and Terrain Mapping Report and acknowledged by the Respondents’ own technical department, Institut Kerja Raya Malaysia (currently known as Ikram Sdn Bhd) (“IKRAM”) vide its Letter of No Objection dated 27.3.2006 (“LONO”) that only 5.52% of the project land is classified as class IV slopes. Admittedly, this Court must take note this vast miscalculation of the JPTKSAS and MPSJ on the classification of the project land. (See Exhibit A-1, page 332 of Enclosure 2 for IKRAM’s LONO). Evidently, even IKRAM has addressed the 5.52% classification of class IV slopes without a single trace of protest or disagreement. Even more pertinent, upon presentation of the 3rd Planning   10    Permission together with the reports above, IKRAM has no objections for the works under the project to be performed: “3. Pihak kami tiada halangan bagi kerja-kerja pembangunan tersebut dijalankan tertakluk kepada pematuhan ULASAN- ULASAN…” 3rd Application for Planning Permission [18] It is verily important that at this juncture, after IKRAM has issued its LONO, MPSJ has already abandoned their contention of rejecting the planning permission on the grounds of the project land’s classification. Entailing IKRAM’s LONO, MPSJ has abandoned their initial qualms on the project land’s classification and by their own volition asked for a fresh presentation of a new layout plan (the 3rd Application for Planning Permission) merely with the condition that the development does not involve buildings which are more than 4- storeys high. In this letter requesting for a fresh presentation, there is absolutely no contention at all on the project land’s   11    classification. All that MPSJ asks for is for the above condition and also that the Applicants present a new Environmental Impact Assessment Report (“EIA Report”) only because the current EIA Report at that time has expired: 2. Sukacita dimaklumkan Mesyuarat Majlis Perbandaran Subang Jaya bil. 04/2006 bertarikh 27 April 2006 telah membuat keputusan menangguh permohonan ini dengan alasan-alasan seperti berikut: “a. Pemaju perlu mengemukakakn pelan susunatur baru bagi pembangunan berdensiti rendah dan tidak dibenarkan pembangunan melebihi 4 tingkat… b. Pemaju perlu mengemukakan Laporan EIA baru memandangkan laporan yang dikemukakan sebelum ini telah tamat tempoh.” [19] And even more paramount here is that JTPKSAS (the same technical department that rejected the 2nd Planning Permission on the ground   12    of the project land’s classification) has in fact and instead approved the 3rd Application Planning Permission and Layout Plan even in the face of the fact that the project land comprises of class III and class IV slopes. (See Exhibit A-13, Enclosure 3): “3.10.1. Mesyuarat menimbang dan bersetuju meluluskan permohonan ini dengan syarat pembangunan yang hendak dijalankan mestilah berdensiti rendah… 3.11.1. Mesyuarat telah menimbang dan bersetuju secara dasar meluluskan permohonan ini…(referring to the 3rd Application for Planning Permission)” [20] Furthermore, this 3rd Application for Planning Permission was also supported by the Respondents’ own Planning Authority which is the Jabatan Perancang Bandar dan Desa Negeri Selangor (“JPBDS”) which issued a series of LONOs regarding the project land. (See Exhibit A-14 of Enclosure 3)   13    4th Application for Planning Permission [21] Following the various vetting and reviews as well as approvals by the Respondents’ various technical departments above, MPSJ itself vide its letter dated 20.2.2008 has requested for another presentation of amended layout plans for the approval of planning permission as per the amendments requested by MPSJ and other technical departments (4th Application for Planning Permission). (see Exhibit A-19 of Enclosure 4) [22] It entailed that MPSJ has conducted a One Stop Centre (“OSC”) meeting with regard to the project land and the Applicants’ presentation of the amended layout plans and planning permission. [23] Now, the minutes of this OSC meeting, by and large, reveals the overwhelming approval of the various technical departments of the Respondents and to an extent even MPSJ’s own approval.   14    MPSJ [24] It is verily noteworthy here that even MPSJ acknowledges and is aware that the whole of the building development project only involves slopes ranging from classes I, II and III while class IV slopes are only going to be utilised for wide spaces and road works. There are no buildings to be erected on class IV lands. (See Exhibit A-20, page 622 of Enclosure 4). “Pembangunan yang dicadangkan meliputi kawasan berkecerunan Kelas I, II dan III. Kelas IV dicadangkan untuk kawasan lapang dan jalan.” [25] Not only that, it was acknowledged by MPSJ that developments involving class III slopes which were approved before 8.3.2008 is allowable albeit with certain conditions. (See Exhibit A-20, page 621 of Enclosure 4)   15    Jabatan Mineral dan Geosains Wilayah Persekutuan/ Kuala Lumpur (“JMG”) [26] The JMG even in acknowledging the fact that the project land comprises of class IV slopes has agreed to the amended planning permission albeit with certain recommendations and conditions. Ultimately the JMG supports the amended layout plans. (See Exhibit A-20, page 623 of Enclosure 4). Jabatan Alam Sekitar Negeri Selangor (“JAS”) [27] Even more noteworthy was that the state’s environmental arm itself has approved of the EIA report submitted by the Applicants. Thus the expired EIA is no longer an issue to be considered. IKRAM [28] IKRAM echoes its earlier LONO towards the development works on the project land albeit with certain recommendations to be complied with. And it must be noted that IKRAM’s non-objection and approval   16    were reached after their own preliminary geotechnical assessment on the project land. “Pihak IKRAM telah menjalankan penilaian awal geoteknikal ke atas tapak cadangan dan tiada halangan bagi kerja-kerja pembangunan tersebut dijalankan tertakluk kepada pematuhan ULASAN-ULASAN…” JPBDS [29] Similarly, even the planning authority of the state has no objection and supports the approval of the project albeit with certain conditions. Classification of project land is a non-issue [30] It is apparent to this Court that at this juncture, the classification of the project land involving class III and class IV slopes no longer poses an issue or an obstacle to the development project and its planning permission. It is apparent that all of the environmental and technical arms of the state all approve the works of the development project as   17    long as there is a compliance of numerous conditions and recommendations. Ultimately, the development is sound. Although the gradient of the slopes is a concern, the responses of the environmental and technical arms of the state have unanimously indicated that the project is within the realm of technical possibility to be performed as long as conditions and recommendations are met. [31] Furthermore, the conduct of MPSJ itself is enough to indicate that it has abandoned the issue of the classification of the project land as a factor of consideration. This is apparent from MPSJ’s call for the 3rd Application for Planning Permission and layout plan which only indicate the requisites of the buildings should not be more than 4- storeys high and that the Applicants submit a fresh EIA report. Even the requisite of the EIA report was required only for the reason that the previous report has expired and not at any point in time because of anything related to the classification of the project land. MPSJ’s 1st sudden change of stance   18    [32] Subsequent to the OSC meeting, MPSJ has a sudden change of air and turned against all of the positive recommendations and approvals from the OSC meeting. MPSJ has instead, raised the stale issue of the classification of the project land (which MPSJ itself had initially abandoned, and now no longer an issue) and made an administrative decision to decline the planning permission. In blowing hot and cold, MPSJ has based this sudden change of air on the fact of a supposed new circular (“Circular”) which was issued by the State Government. (See Exhibit A-21 of Enclosure 4) (see page 255 of Enclosure 8 for the State Government’s Circular) Appeal by PNSB and the Applicants against MPSJ’s decision at the Appeal Board [33] Appalled by the sudden shift of stance and rejection by MPSJ, PNSB and the Applicants filed for an Appeal to be heard at the Appeal Board. (see Exhibit A-22 of Enclosure 4 for the Notice of Appeal) However, in the midst of this appeal, the State Government has issued a new guideline for hill slope development aptly called the “Draf Garis Panduan Perancangan Pembangunan di Kawasan   19    Bukit dan Tanah Tinggi Negeri Selangor”. This new guideline inter alia allows for developments to be conducted albeit conditionally, on class III lands. The classification of the project land’s slopes is a non-issue even during the Appeal at the Appeal Board [34] Even at this juncture, similarly, the classification of the project land remains a non-issue and MPSJ has rejected the application for planning permission for no apparent or valid and justifiable reason. Entry of Consent Order in light of the new guidelines [35] In fact, in light of the fact the new guidelines allows development of class III lands, the parties have entered into a consent order in order to ascertain the extent of applicability of the new guidelines and also the prospect of the development project to be continued to be performed. The parties have mutually agreed to prepare technical and additional reports in view of the new guidelines. (See Exhibits A- 27 and A-28 of Enclosure 4)   20    [36] Now, pursuant to this Consent Order, the Applicants have diligently endeavoured to prepare the technical and financial reports together with IKRAM. MPSJ’s 2nd sudden change of stance [37] Seemingly unable to cling onto the issue of classification of the project land, MPSJ had instead attempted to weasel out of the development project on the ground that the State Government has instructed PNSB to discontinue the development project. Again, it must be highlighted that the issue of classification of the project land has been totally abandoned and MPSJ now seeks to put the JVAs to its demise from a different tangent. PNSB’s affirmation of the Contract after expiry of the JVAs [38] In light of the supposed instruction by the State Government, the Appeal Board directed PNSB to write and notify its stand with regard to the JVAs and also the appeal filed by PNSB itself.   21    [39] To which, PNSB has clearly issued a letter of affirmation dated 3.3.2011, affirming the continuity and subsistence of the JVAs even after its expiration. Furthermore, PNSB wrote that it still intends to continue with the appeal filed. (see Exhibit A-30 of Enclosure 4). In affirming and confirming the continuity of the JVAs, PNSB had written the following: “2. Dimaklumkan bahawa Perjanjian Usahasama yang ditandatangani di antara Setiausaha Kerajaan Selangor (Perbadanan) (PSKS), Permodalan Negeri Selangor Berhad (PNSB) dengan Syarikat Citrasama Projek Sdn Bhd dan Syarikat benua Ehsan Sdn Bhd bagi memajukan projek ini telahpun tamat. 3. Walaubagaimanapun, PNSB yang masih merupakan salah sebuah pihak perayu dan juga pemegang wakil kuasa (‘power of attorney’) kepada PSKS masih berhasrat untuk memajukan projek ini dan akan meneruskan proses rayuan yang telah difailkan…”   22    [40] Thus, it is evidently clear in vivid obviousness that the parties of the JVAs have mutually in unison agreed to the subsistence, extension and prevalence of the JVAs beyond its expiration period. Thus, the JVAs still persist. Striking Out of the Appeal [41] It is entirely unsurprising given the state’s unrelenting refusal to perform the valid JVAs that the Appeal Board unilaterally decided to strike out the Appeal. [42] It was only soon afterwards that it was learnt that PNSB has issued a letter dated 10.3.2011 expressing its intent to no longer carry on the appeal in line with the State Government’s instruction Court’s preliminary finding on this letter above [43] It is this Court’s preliminary finding that the above letter is not a valid letter to vitiate the JVAs which were already given a new lease of life   23    from PNSB’s own letter of affirmation just a week earlier on 3.3.2011. As the JVAs now still persist, PNSB cannot simply opt to vitiate the contract. Such unilateral conduct would be a wrongful administrative decision which amounts to a breach of contract. The State Government cannot simply direct PNSB, a core partisan to the contract to breach valid contracts which are still in operation. [44] It was also later learned that the State Government had decided to revoke the said project on the purported though fallible reason that the JVAs have lapsed. This was informed by PNSB vide its letter dated 25.4.2011. (See Exhibit A-36, page 880 of Enclosure 4) [45] Thus, in light of all the above facts, it is the Applicants’ case that, generally the administrative decisions of the Respondents in: i. rejecting the Applicants’ numerous applications for planning permission; ii. unilaterally attempting to vitiate the JVAs;   24    iii. unilaterally opt to absolve themselves from performing the JVAs; and iv. unilaterally striking out the Appeal at the Appeal Board were all wrongful administrative decisions which were culminated vide an improper, unreasonable decision making process which is devoid of a single spec logical and legal justification. This allegation forms the underlying cause of action of the Applicants’ application for Judicial Review under Order 53 of the Rules of High Court 1980. [46] It is also the Applicants’ case that it is within the Applicants’ legitimate expectation that the JVAs are performed and the development project should be continued. [47] Unsurprisingly, the Respondents’ defences against the Applicants’ lengthy submissions seemingly indicate the Respondents’ attempt to eschew from the task to directly address the alleged unlawful decisions in rejecting the applications for planning permission.   25    Collectively per se, the defences set up by the Respondents are as follows: i. Allegedly, as time is of the essence of the JVAs, the JVAs have already lapsed and expired. ii. The Respondents have validly rejected the applications for planning permission in light of the concerns over the classification of the project land which comprises of class III and class IV slopes. iii. PNSB has validly terminated the JVAs vide its letter dated 3.3.2011 in view of the JVAs alleged expiration. iv. In case the JVAs still persist, the Applicants’ application for Judicial Review is an abuse of process as the dispute is allegedly a private law dispute and not a public law dispute.   26    v. The JVAs are allegedly impossible to perform on the mere reason that the State Government has instructed PNSB to discontinue the development project. [48] This Court is of the view that the mass of issues in the present case can be condensed and simplified into the following issues to be determined: (i) Do the JVAs remain as persisting, subsisting and enforceable contracts even after its expiration or lapsing? (ii) Is the present dispute a private law dispute or a public law dispute? (iii) Were the Respondents’ decisions with regard to the development project, properly, and appropriately reached? (iv) Is it within the Applicants’ legitimate expectations that the JVAs should remain operable beyond its expiration period   27    and that the development project should have been performed and approved by the Respondents? ISSUE (i): DO THE JVAs REMAIN AS PERSISTING, SUBSISTING AND ENFORCEABLE CONTRACTS EVEN AFTER ITS EXPIRATION OR LAPSING? [49] Quite apparently, the Respondents hung onto the purported expiration of the JVAs desperately, in order to attempt to demonstrate and prove the propriety of their decisions to revoke and discontinue the development project. The Respondents submit that as there is a definite expiration date, time is of the essence of the contract. The Respondents go on to refer to the mass of cases which uphold the trite principle. To cite a few are the cases of Mat Ziki v Mokhtar Bin Amin [1996[ 2 MLJ 687 and also Loke Yuen Cheng & Anor v Vimtex Sdn Bhd [1998] 4 MLJ 169.   28    [50] Undoubtedly, the JVAs entered by the parties, even with the extensions of the supplementary agreements entered, have all lapsed. The JVA entered between PNSB and the 1st Applicant has lapsed on 23.7.2008 while the JVA entered between PNSB and the 2nd Applicant has lapsed on 13.6.2010. [51] This Court does not intend to contra the above precedents into this trite and tested principle. However, even in the same case referred to by the Respondents, the case of Loke Yuen Cheng, it is already sufficiently held that the trite principle is not without an exception. The exception in simple terms would be that although time is made an essence in a contract, time would no longer be of essence, if the parties conduct themselves against that essence by keeping negotiations after and beyond the contract’s expiration or lapsing. The Court succinctly held: “When time is of the essence of the contract and when the party who is in the right allows the time fixed for completion to pass and the parties go on negotiating, then time is no longer regarded as essence of the contract”   29    [52] There are a multitude of reasons which negates this contention by the Respondents, and this Court shall categorically delve into those reasons: Conducts affirming the continuity, subsistence and operation of the JVAs beyond their expirations i. Letter of Affirmation by PNSB dated 3.3.2011 (Exhibit A-30 of Enclosure 4) [53] It is clearer than daylight that the parties have not only kept negotiations, but in fact aggressively fought for the operation of the JVAs even after the expiration of the JVAs. It could not have been clearer with PNSB’s own letter which envisages in distinct, vivid and unwavering words that PNSB affirms the subsistence of the JVAs even after its expiration: “2. Dimaklumkan bahawa Perjanjian Usahasama yang ditandatangani di antara Setiausaha Kerajaan Selangor (Perbadanan) (PSKS), Permodalan Negeri Selangor   30    Berhad (PNSB) dengan Syarikat Citrasama Projek Sdn Bhd dan Syarikat Benua Ehsan Sdn Bhd bagi memajukan projek ini telahpun tamat. 3. Walaubagaimanapun, PNSB yang masih merupakan salah sebuah pihak perayu dan juga pemegang wakil kuasa (‘power of attorney’) kepada PSKS masih berhasrat untuk memajukan projek ini dan akan meneruskan proses rayuan yang telah difailkan…” [54] It is already largely evident here that time is no longer of the essence within the contract. PNSB is a party to the JVA and at this point in time, their conduct has given the JVA a new lease of life beyond its expiration date. Thus, at no measure at all that the Respondents can now contend that the JVA has expired. ii. There is no proper notice of termination   31    [55] Furthermore, the clauses in the JVAs regarding the avoidance of the contract, namely clauses 8.12 and 8.13 of the JVA, all require for such termination to be made vide a notice. [56] It is verily perplexing that PNSB would contend against the clear unadulterated words of its own letter of affirmation above, that this letter was the notice of termination of the JVAs. [57] It is in fact astonishing that PNSB would paint a totally inaccurate position of this supposed letter of termination. Exhibit A-30 of Enclosure 2 is NOT a notice of termination. In fact, it is the exact opposite of a notice of termination. The letter is instead a letter affirming the JVA even after its supposed expiration. The PNSB had only quoted a portion of the whole letter (in paragraph 2) to suit their inhibitions, which is verily an inaccurate reading of the letter. The ensuing paragraph 3 after the partial quotation of the 1st Respondent reads: “3. Walaubagaimanapun, PNSB yang masih merupakan salah sebuah pihak perayu dan juga pemegang wakil   32    kuasa (‘power of attorney’) kepada PSKS masih berhasrat untuk memajukan projek ini dan akan meneruskan proses rayuan yang telah difailkan…” [58] Furthermore, this Court has already found that the ensuing letter dated 10.3.2011, just one week after the letter of affirmation, is NOT a valid letter of termination. The earlier letter of affirmation has already given the JVAs new leases of life. Thus, in the JVAs subsistence, the Respondents can no longer vitiate the contract at their own unilateral whims and fancies. The affirmation came first in time, validating the contract’s subsistence before the ensuing wrongful and invalid letter of termination. [59] Thus, it stands that there was never a proper notice of termination furnished by PNSB. iii. The Appeal to the Appeal Board was filed together with PNSB [60] Adding to the weight of this contention, is the fact that PNSB itself has vigorously fought for the subsistence of the JVAs even after the   33    expiration of the JVAs by joining in hands with the Applicants to file the appeal at the Appeal Board against the decision of MPSJ in rejecting their applications. (see Exhibit A-22 of Enclosure 4) [61] Thus, in light of all the above, it is this Court’s considered view that the JVAs remain subsisting as well as operable and are valid contracts binding the parties even after its expiration and lapsing. [62] This Court also finds valuable guidance from the decision of Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 which has referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with   34    case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) [63] Thus, it is this Court’s considered view that all the parties of the JAVs have conducted themselves in a manner indicative of an affirmation   35    of the JVAs’ subsistence even beyond its expiration. Thus, neither of the parties, especially the Respondent should be allowed to contend otherwise. To allow such fickle change of stance would bestow immeasurable injustice to partisans to any contract. There is no supervening impossibility to frustrate the JVAs [64] It is beyond any stretch of legal and logical justification that PNSB deems the JVAs impossible to perform merely because the State Government decided to revoke the project. PNSB desperately sought to rely on section 57(2) of the Contracts Act. [65] Even the State Government in its own submissions has pushed for the doctrine of separate legal entity, demarcating its liability as against the other Respondents partisan to the JVAs. [66] Absolutely none of the Respondents’ own technical departments concluded that the project was impossible to be performed. The long stretch of delay was MPSJ’s own undoing in refusing to take heed to the technical departments’ approvals over the development project.   36    [67] The State Government cannot simply vitiate the contract. The contract is well within the realm of possibility to be performed. It is not frustrated. The objects and purposes of the JVA can still be met if development was properly approved and carried out as per the JVAs. [68] There is no supervening impossibility in the present case. The state of non-performance was a conscious and deliberate choice, not an inevitable conclusion. ISSUE (ii): IS THE PRESENT DISPUTE A PRIVATE LAW DISPUTE OR A PUBLIC LAW DISPUTE? [69] In another feeble attempt to justify the wrongful process in the Respondents have made their decisions, the Respondents submitted that if in case the JVAs subsist, then the whole dispute is within the ambit of private law and thus, deeming the application for judicial review as an abuse of process of the Court. The Respondents fallibly submits that this present dispute ought to fall within the ambit of section 4 of the Government Proceedings Act 1956 merely on the   37    misconceived grounds that the Applicants’ cause of action arose solely from the breach of the JVAs. This is indubitably, a gross misconception. [70] Indeed the present Application is a hybrid of both public and private law and it is within the discretion of this Court to decide which of the two realms of law bears more weightage and relevance in the present dispute. This Court finds valuable guidance from the Federal Court decision in the case of Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865: “If it is a mixture of public and private law, then the court must ascertain which of the two is more predominant. If it has a substantial public law element then the procedure under O.53 RHC must be adopted.” [71] And indeed, this Court without a single shade of doubt is of the view that by and large, the present case is predominantly a public law dispute as compared to a private law dispute.   38    [72] The decisions that the Applicants are challenging are administrative decisions of the Respondents in unnecessarily and unlawfully rejecting their applications. [73] Furthermore, the present case weighs far greater in the sphere of public law when the decision challenged is also the decision of the Appeal Board which definitely is an administrative decision. The Appeal Board has no contractual relations whatsoever with the Applicants. [74] Indeed with the JVA still subsisting, all conducts of the Respondents in vitiating the JVAs are breaches to the contracts. However, these breaches all emanate from the wrongful administrative decisions of the Respondents. Thus, although on the surface the conducts of the Respondents are breaches of the contracts, it does not negate that the decisions of the Respondents in opting to breach the Contract are made in their administrative capacity and administrative duty. The fact of the matter is the breach is merely an inevitable consequence to the Respondents’ abuse of discretion in making their administrative decisions.   39    [75] MPSJ’s authority and duty as the municipal council, also includes the approvals of planning permissions for development. Thus, all wrongful decisions approving/disapproving such plans are administrative decisions. MPSJ is not even a party to the JVA which further highlights the relevance of public law in the present case. [76] Furthermore, the decisions challenged also include the decisions which were made by the State Government who is not a party to the JVA. Similarly, the decisions challenged are also inclusive of the wrongful decision of the Appeal Board in striking off the Appeal in the first place. This is indeed not any contractual breach but is exactly a wrongful administrative decision. There are no viable justifications to reason out the process in which the Respondents have reached their wrongful decisions. COURT’S FINDING   40    [77] Thus, it is this Court’s considered view that the present application is a valid application and not in any manner an abuse of process of the Court. ISSUE (iii): Were the Respondents’ decisions with regard to the development project, properly, and appropriately reached? [78] Before this Court categorically address the numerous decisions of each respective Respondents, this Court shall briefly allude the laws and principles of judicial review relevant to the present case. [79] The State Government is quick to remind the Court that the process of judicial review is to question the decision making process behind administrative decisions and not merely scrutinising the merits of such decisions. They relied on the case of Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ 473.   41    [80] The State Government also submits the case of Tenaga Nasional Bhd v Ong See Teong & Anor [2010] CLJ 1 FC in which the Federal Court in this case has laid down the exception to the general rule above in that the Court WILL look into the merits of the decision itself as opposed to the decision-making process, if the decision is “illegal, irrational, made with procedural impropriety and disproportionate”. [81] This Court is also minded that the rationality of an administrative decision and also the propriety of the decision-making process of such decision is also dependent upon the factors in which the administrative body has or has not taken into account. It is also a proof of a misdirection of an administrator’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in KPMG Consulting (ASPAC) Sdn Bhd v YB Menteri Sumber Manusia Malaysia & Ors [2004] 1 MLJ 26: “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have   42    taken into account or vice versa; or has otherwise gone wrong in law” Impropriety of the decision making-process and irrationality of MPSJ’s decision in rejecting the numerous Applications for Planning Permission by the Applicants [82] Here, the wrongfulness of MPSJ’s decision is two-folds, both in its decision-making process and also on the irrationality of the decision per se. [83] This Court cannot stress enough that the fickle conduct of MPSJ is indicative that the classification of the project land is a non-issue. In fact, the ultimate reason that the planning permission is rejected is not because the project land comprises of class III and class IV slopes, but merely because purportedly, the JVAs have expired. At the end of MPSJ’s twists and turns, MPSJ contends on the vitiating of the JVAs on their supposed expiration, and not on the classification of the project land.   43    [84] MPSJ have twice raised the issue of classification and proceeded to totally abandon the contention. And the abandonments ensue after the technical departments of the Respondent approves of the development project as well as all of its plans submitted (during the process of the 3rd Application for planning permission) and after the State Government has issued a new policy allowing development on class III slopes (albeit with certain conditions) which basically defeats the very ground in rejecting the planning permission in the first place (in the midst of the Appeal at the Appeal Board). [85] On both accounts that the issue of classification of project land arose, the same issue was rendered a non-issue and abandoned by MPSJ. [86] At this juncture, MPSJ has taken into consideration two factors which it ought not to consider. Firstly, it was wrong for MPSJ to base their decision on the misconceived fact that the JVAs have expired. Secondly, it was wrong for MPSJ to base their decision on the classification of the project land which innately is a non-issue. MPSJ   44    also has failed to take into account the fact that the JVAs are still subsisting and operable beyond its expiration date. [87] MPSJ’s numerous decisions to reject the Applicants’ application for planning permission is also irrational to begin with. Against all of the technical and environmental concerns, all of the Respondents’ core authorities in Geotechnical Assessments, planning and the environment have all approved the development project, albeit with certain conditions and recommendations. [88] All the technical departments have approved and supported the plans submitted. The development plan vide these strenuous vetting and review should be sound as per the approval and support of the technical departments. In fact, the guidelines never prohibited the development on class III lands in toto. Development Project is sound although with conditions and recommendations   45    [89] Furthermore, although the technical departments have expressed conditions and concerns, ultimately the technical departments have approved and supported the plans, albeit with certain conditions. It suffices that the plans were sound to be executed after extensive vetting and reviewing of the plans. [90] Indeed this court does not discount the probability, or the higher risks of untoward occurrences in the hilly slopes of the project land. However, it must be noted that such risks exist in any development of any hilly lands. And such risks are necessary and unavoidable to be taken to further the development of the state especially when the risks have been carefully calculated and approved by the state’s own technical departments. [91] Adding to this issue, the Applicants are more than willing to comply with all the recommendations and conditions set forth by the technical departments. It is indeed irrational to revoke the development project when the Applicants as developers were not even given the opportunity to comply with the said conditions and recommendations.   46    [92] Thus, it is this Court’s considered view that MPSJ’s decision in rejecting the Applicants’ applications for planning permission is a wrongful decision as it was irrational and also improper in MPSJ’s process of decision-making. Is the Circular issued by the State Government dated 2.4.2008 prohibiting development on class III slopes and PNSB’s reliance on the said Circular valid administrative decisions? [93] It is the Applicants’ contention that the State Government’s Circular Directive dated 2.4.2008 was invalid and unlawful as it contravenes the law particularly the provisions of the Town and Country Planning Act 1976 (“Act”) and also the Selangor Structure Plan 2020 which was gazetted pursuant to same Act and was already in force since 14.6.2007. Undoubtedly the Act and the Structure Plan (upon gazetting) carries a statutory effect for compliance. [94] Section 22(2) of the Act stipulates that the local planning authority (in the present case, MPSJ) in considering applications for planning permissions shall take into consideration such matters as are in its   47    opinion expedient or necessary for proper planning and in particular, the provisions of the development plan. Section 2 of the Act has defined “development plan” to include: a. the local plan for the area; or b. if there is no local plan for the area, the structure plan for the area. [95] True enough, the Selangor Structure Plan 2020 indeed permits medium density development on class III slopes (25 degrees to 35 degrees gradient), and even allows construction of infrastructure and utility system on class IV (above 35 degrees gradient) slopes: “Memastikan pembangunan di kawasan berkecerunan 25 – 35 darjah dibangunkan hanya untuk pembangunan berkepadatan sederhana dan memenuhi syarat-syarat yang telah ditetapkan. Walaubagaimanapun bagi kawasan berkecerunan melebihi 35 darjah tiada sebarang pembangunan dibenarkan system perhubungan infrastruktur dan utilliti”   48    [96] It is exceedingly astonishing that all of the Respondents in the present case have posed little to none contest at all against this contention of the Applicants. All the Respondents were bent to prove their case vide proving the expiration of the JVAs (which this Court disagrees) and also on the classification of the project land. Literally, none of the Respondents even attempt to contra this contention. All of the Respondents have kept their silence and totally eschewed from the task of replying to this contention by the Applicants. [97] Thus, this Court finds that the Circular is indeed illegal as it contravenes clear statutory provisions. Consequently, it is also this Court’s considered view that MPSJ’s blind reliance onto this Circular is equally an improperly reached decision and is utterly flawed in its decision-making process. The State Government’s decision to revoke the development project is an unlawful administrative decision.   49    [98] The State Government has decided to revoke the development project on the ground that the JVAs have all expired. This was explained by vide PNSB’s letter dated 25.4.2011. It is verily simple to see that the State Government has considered, again this gross misconceived fact that the JVAs have indeed lapsed. [99] Thus it is this Court’s considered view that the State Government has considered a misconceived fact which it ought not have taken into consideration in its decision-making process. Therefore, the State Government’s administrative decision here is utterly unlawful and invalid. The Appeal Board’s decision to strike out the Applicants’ and PNSB’s appeal on 10.3.2011 and its decision to maintain the earlier striking out on 8.4.2011 is unlawful and invalid. [100] This Court does not find it necessary to go at lengths discussing all the surrounding facts of the Appeal Board’s decision in striking out the Applicants’ and PNSB’s appeal.   50    [101] Suffice that reference is made to the Appeal Board’s Grounds of decision for this Court to find that indeed the Appeal Board’s decision is unlawful and invalid. This is simply for the reason that the Appeal Board has considered the misconceived fact that the JVAs have expired which purportedly totally dissipates the subject of the dispute. The decision reads (see Exhibit A-38 of Enclosure 18): “As Appellant 2 & 3 are parties in this joint venture agreement which had terminated and not renewed…there is no longer the subject matter of the appeal. Being so Appellant 2 & 3 who were once partners in the joint venture had no more subject matter to appeal. Because of this the Lembaga struck off their appeal and also Appellant 1’s appeal” [102] Thus, it is this Court’s considered view that the Appeal Board’s decision in striking out the Applicants’ and PNSB’s appeal is indeed an unlawful and invalid administrative decision. COURT’S FINDING   51    [103] In view of all of the above, it is this Court’s considered view that indeed all of the above administrative decisions of the Respondents are unlawful and invalid as they are either irrational, or utterly flawed in its decision-making process for the reason that the Respondents have considered misconceived facts which they ought not consider at all and have failed to consider the fact that the JVAs persist and subsists well beyond its expiration dates. ISSUE (iv): IS IT WITHIN THE APPLICANTS’ LEGITIMATE EXPECTATIONS THAT THE JVAS SHOULD REMAIN OPERABLE BEYOND ITS EXPIRATION PERIOD AND THAT THE DEVELOPMENT PROJECT SHOULD HAVE BEEN PERFORMED AND APPROVED BY THE RESPONDENTS? [104] It is also the Applicants’ case that it is also within their legitimate expectations that the JVAs remain operable beyond its expiration period and that the development project should have been performed and approved by the Respondents. The learned counsel for the   52    Applicants have succinctly categorised such legitimate expectations in the light of the present case: i. Legitimate expectation when a body makes representation of certain types of permitted development vide publication of statutory provisions and guidelines (referring to the Act, the Selangor Structure Plan 2020 and also the State Government’s Circulars) ii. Legitimate expectation when an interest is protected and permissible by provisions of law and procedural fairness. iii. When a situation requires an administrative body to act reasonably and fairly [105] The above simplification is based on the decision of the Court of Appeal in Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan Berhad v Majlis Perbandaran Pulau Pinang [1996] 3 CLJ 335 at pages 379 – 381.   53    [106] This Court has no qualms at all in agreeing that there were various legitimate expectations which were denied by the Respondents in their administrative decisions. Legitimate expectation that the JVAs remain subsisting, operable and binding against all partisans [107] This legitimate expectation begs for no further elaboration. This Court at length have discussed earlier that MPSJ has clearly conducted itself in a manner representing its affirmation of the JVAs beyond its expiration date. The Applicants’ interest is protected under the JVAs which operate under the provisions of the Contracts Act. [108] Thus, the decision of PNSB in withdrawing its appeal and attempting to vitiate the JVAs directly contradicts against this legitimate expectation. Similarly, the State Government’s decision to revoke the development project on the basis of the same misconceived fact also contradicts this legitimate expectation. Furthermore, the Appeal Board’s decision in striking out the Appeal also goes against the same legitimate expectation.   54    Legitimate expectation that the application for planning permission and the development project be allowed [109] It is reiterated again that the classification of the project land is a non- issue. Furthermore, even the Act and the Structure Plan allows for development over class III and class IV slopes albeit with certain conditions. Adding to the same effect, all of the core technical departments of the Respondents have supported and approved of the development project. Thus, the Applicants’ interest here is firstly, protected by the provisions of the law. Secondly, the ensuing policies, Structure Plans which were brought forth by the Respondents themselves is a representation that a development project may be allowed even if it involves class III and class IV hill slopes. Thirdly, in the face of all the positive approvals of the core technical departments of the Respondents, it is the Applicants’ legitimate expectation that MPSJ should act fairly and reasonably and thus, approve of the planning permission and development project. There is an absence of any valid reason for MPSJ to decline the planning permission. This Court has already dealt with the technical concerns   55    and recommendations of the technical departments and found that ultimately the technical departments have approved of the development project. The risks of untoward occurrences were calculated risks which even in consideration of such risk, the technical departments still saw the development project to be sound, albeit with compliance with their own respective conditions and recommendations. COURT’S FINDING [110] In light of the above, it is this Court’s considered view that indeed the Respondents have deprived the Applicants off of their legitimate expectations vide their unlawful and invalid administrative decisions. COURT’S DECISION AND DIRECTIONS [111] In light of all of the above findings, it is this Court’s decision that the Applicants have indeed successfully proven that the Respondents have indeed arrived to a series of improper decisions in vitiating the projects with the Applicants.   56    [112] This Court hereby grants the following orders: A. Declarations that: i. The JVAs executed between PNSB, the State Secretary and Applicants are valid and subsisting. ii. MPSJ’s decision on 14.10.2008 in rejecting the Applicants application for planning permission on the ground that the said project land comprises of class III and class IV land is null and void. iii. Both of the Appeal Board’s decision in striking out the Applicants’ and PNSB’s appeal is null and void. iv. The State Government’s decision to revoke the development project on the ground that the JVAs have expired is null and void.   57    v. The State Government’s policy to not allow developments on class III and class IV slopes is null and void. B. Certiorari and Mandamus Orders i. Certiorari to quash the decisions above which are declared to be null and void ii. Mandamus to direct MPSJ to duly and accordingly issue Planning Permission to the Applicants, PNSB and the State Secretary to enable them to perform the development project C. Injunction and Specific Performance i. Injunction to restrain PNSB and the State Secretary from carrying out any transaction or dealing on the project land ii. Specific Performance that PNSB and the State Secretary to carry on and continue with the JVAs and Power of Attorney for the development project and perform the said project.   58    On the issue of costs [113] Having heard the submissions from the counsels for the Applicants and the Respondents, this Court hereby orders the Respondents to pay the Applicants a global sum of RM 30,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 6th day of August, 2015   59    For the Applicants - Tetuan Chambers of Firdaus Encik LS Leonard Encik David Samuel For the 1st and 2nd Respondent - Tetuan Kamaruzaman Arif Amran & Chong Dato’ Kamaruzaman bin M. Arif Cik Sofiah Omar For the 3rd Respondent - Kamar Penasihat Undang-Undang Negeri Selangor Tuan Ahmad Fuad bin Othman For the 4th Respondent - Tetuan Lathika & Associates Cik Lathika Prabhakaran

Tika 2.6.0

24FC-1662-12/2014

PLAINTIF CIMB BANK BERHAD DEFENDAN 1. WAN ZUBAIDAH BT WAN MAHMOOD (juga sebagai wakil diri harta pusaka Nik Ab. Rahman Bin Nik Mat, Si Mat 2. Nik Ab. Rahman Bin Nik Mat, Si Mati

04/08/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5bb4c253-7481-4255-89d7-8cde002b6a94&Inline=true

Microsoft Word - 24FC-1662-12-2014 CIMB Bank Berhad v. Wan Zubaidah bt Wan Mahmood 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO.24FC-1662-12/2014 Dalam perkara Gadaian bagi tanah dan bangunan yang terletak di H.S.(M) 124, Lot No. 7663, Mukim Sg. Buloh, Daerah Petaling, Negeri Selangor Darul Ehsan yang didaftar dalam fail Gadaian No. Perserahan: 2430/1981, Jilid 11, Folio 82; DAN Dalam perkara mengenai Aturan 83, Kaedah- Kaedah Mahkamah Tinggi 2012; DAN Dalam perkara mengenai Seksyen 256 & 257 di bawah Kanun Tanah Negara 1965. Dalam perkara mengenai Seksyen 256 & Seksyen 257, Seksyen 265(3A) Kanun Tanah Negara 1965; DAN Dalam perkara mengenai Seksyen 256(3)(b) Seksyen 256(3)(b) dan Seksyen 265(3A) Kanun Tanah Negara 1965 berkenaan Sijil Rujukan Mahkamah bertarikh 24/9/2002 ANTARA CIMB BANK BERHAD … PLAINTIF DAN 1. WAN ZUBAIDAH BT WAN MAHMOOD (juga sebagai wakil diri harta pusaka Nik Ab. Rahman Bin Nik Mat, Si Mati) 2. NIK AB. RAHMAN BIN NIK MAT, Si Mati ... DEFENDAN- DEFENDAN 2 ALASAN PENGHAKIMAN (Permohonan di bawah seksyen 265(3A) Kanun Tanah Negara 1965) [1] Pada 12.12.2014, CIMB Bank Berhad (Plaintif) pada awalnya telah memfailkan Saman Pemula (Kandungan 1) untuk mendapatkan perintah-perintah antara lain bahawa: (a) bahawa hartanah beralamat yang dipegang di bawah H.S (M) 124 Lot No: 7663, Mukim Sg. Buloh, Daerah Petaling, Negeri Selangor (selepas ini dirujuk sebagai “hartanah tersebut”) yang telah digadaikan kepada Plaintif {melalui Gadaian yang didaftarkan di bawah Perserahan No. 2430/1981, Jilid 11, Folio 82 (gadaian tersebut)} dijual melalui lelongan awam di bawah Kanun Tanah Negara. (b) bahawa jualan hartanah tersebut mestilah secara lelongan awam pada tarikh, tempat dan masa yang ditetapkan oleh Mahkamah yang mulia ini. [2] Kemudian daripada itu, Plaintif pada 17.4.2015 telah memfailkan satu permohonan untuk meminda Kandungan 1 dan pindaan yang dipohon oleh Plaintif antara lain adalah meminda relif perintah di perenggan 1(a) kepada relif perintah berikut: 3 Bahawa Perintah Jualan Pentadbir Tanah Daerah Petaling, Selangor Darul Ehsan bertarikh 5/5/1994 digantikan dengan perintah Mahkamah Yang Mulia ini menurut Seksyen 265(3A) Kanun Tanah Negara, 1965. [3] Mahkamah telah membenarkan permohonan pindaan tersebut dan selepas daripada itu Plaintif telah memfailkan Saman Pemula Terpinda (Kandungan 11) pada 22.5.2015. [4] Pada dasarnya Kandungan 11 ini adalah permohonan oleh Plaintif menurut seksyen 265(3A) Kanun Tanah Negara (KTN) yakni memohon bahawa Perintah Jualan Pentadbir Tanah Daerah Petaling, Selangor Darul Ehsan bertarikh 5.5.1994 digantikan dengan Perintah Mahkamah. Melalui pindaan Kanun Tanah Negara 1965 pada tahun 2001, seksyen 265(3) (c) telah dipinda sebagai seksyen 265(3A). [5] Seksyen 265 (3) dan seksyen 265 (3A) KTN memperuntukkan seperti berikut: (3) If at the subsequent sale no bid is received at or above the reserve price, the Land Administrator may – 4 (a) direct that it be put up for auction at a subsequent date, either at the same or a new reserve price and shall give such notice of the subsequent sale as he may consider appropriate; or (b) withdraw it from the sale and refer the matter to the Court. (3A) The Court may substitute for the order of the Land Administrator an order for sale under section 256, or make such other order as it may think just: Provided that the Court shall not make any order to the Land Administrator to carry out the sale. [6] Permohonan Plaintif ini telah disokong oleh afidavit-afidavit yang diikrarkan oleh Paisal bin Ahmad (Naib Presiden Plaintif) iaitu: (i) Kandungan 2 (Afidavit Sokongan). (ii) Kandungan 6 (Afidavit Jawapan Plaintif). [7] Fakta ringkas kes yang membawa kepada pemfailan permohonan Plaintif ini adalah seperti berikut: (i) Atas permohonan kedua-dua Defendan (Wan Zubaidah bt Wan Mahmood - Defendan Pertama dan Nik Ab. Rahman bin Nik Mat - Defendan Kedua) pada 20.4.1981, Plaintif (sebelum ini dikenali sebagai Bank Bumiputra Malaysia Berhad (BBMB)) 5 telah memberi kemudahan perbankan kepada Defendan- defendan yang berupa satu pinjaman perumahan (pinjaman perumahan tersebut) berjumlah RM 130,000.00 bagi membiayai pembelian sebuah rumah teres di Lot No.7, Jalan SS4C/18, Taman Rasa Sayang, Petaling Jaya, Selangor Darul Ehsan daripada seorang bernama Nik Mahmood bin Nik Mat atas terma-terma dan syarat-syarat yang dipersetujui oleh kedua-dua pihak. (ii) Bagi menjamin kemudahan pinjaman perumahan tersebut, Defendan-defendan telah bersetuju menggadaikan hartanah tersebut kepada Plaintif melalui Gadaian Bil Perserahan No.2430/1981, Jilid 11, Folio 82 yang didaftarkan pada 21.10.1981. (iii) Defendan-defendan kemudiannya telah memungkiri syarat dan terma-terma pinjaman perumahan tersebut apabila gagal membuat pembayaran ansuran yang ditetapkan di dalam pinjaman perumahan tersebut. 6 (iv) Di atas kemungkiran Defendan-defendan di dalam menyelaraskan akaun pinjaman perumahan mereka tersebut, Plaintif melalui peguamcaranya telah memulakan tindakan menguatkuasakan hak atau remedi statutori Plaintif ke atas gadaian tersebut dengan memohon perintah penjualan untuk menjual hartanah tersebut melalui lelongan awam. Memandangkan hartanah tersebut adalah hartanah di bawah pegangan pejabat tanah, Plaintiff telah memohon perintah penjualan dikeluarkan oleh Pentadbir Tanah Petaling yang kemudiannya telah mengeluarkan satu perintah penjualan menurut sekyen 263(1) KTN. Walaupun lelongan awam telah dijalankan sebanyak dua kali di Pejabat Tanah Daerah Petaling, hartanah tersebut tidak berjaya dijual. (v) Pada 24.9.2002 Pentadbir Tanah Petaling telah mengeluarkan satu Sijil Rujukan Mahkamah menurut seksyen 265(3) (b) KTN kepada peguamcara Plaintif bagi mengarahkan Plaintif sebagai pemegang gadaian merujuk perkara ini ke Mahkamah. Justeru, Plaintif telah memfailkan permohonan di dalam Kandungan 1 7 yang kemudiannya dipinda kepada Kandungan 11 (Saman Pemula Terpinda). [8] Defendan Kedua telah meninggal dunia pada 29.1.2012, justeru Defendan Pertama juga dibawa di dalam prosiding ini sebagai wakil diri harta pusaka Defendan Kedua (si mati). [9] Defendan-defendan yang akan selepas daripada ini dirujuk sebagai “Defendan” telah memfailkan tiga (3) afidavit untuk membantah permohonan Plaintif. Dua afidavit telah diikrarkan oleh Defendan Pertama sendiri dan satu oleh seorang yang bernama Nik Mahmood bin Nik Mat yang mengaku sebagai Pemegang Kuasa Wakil bagi pihak Defendan-defendan bagi hartanah tersebut menurut Surat Kuasa Wakil bertarikh 27.8.2008. Ketiga-tiga afidavit tersebut adalah seperti berikut: (i) Afidavit Bantahan Defendan yang diikrarkan Wan Zubaidah binti Wan Mahmood pada 27.2.2015 (Kandungan 5). (ii) Afidavit Jawapan II Defendan yang diikrarkan Wan Zubaidah binti Wan Mahmood pada 7.04.2015 (Kandungan 7). 8 (iii) Afidavit Nik Mahmood bin Nik Mat yang diikrarkan pada 2.6.2015 (Kandungan 12). [10] Kedudukan undang-undang berkaitan dengan permohonan yang dibuat oleh mana-mana pemegang gadaian untuk menggantikan perintah penjualan yang dikeluarkan oleh Pentadbir Tanah kepada satu perintah jualan oleh Mahkamah menurut seksyen 265 (3A) Kanun Tanah Negara, 1965 berdasarkan rujukan yang dibuat oleh Pentadbir Tanah adalah jelas dan mantap. Di dalam kes Lee Gee Pheng v. RHB Bank Bhd [2003] 4 CLJ 639, Mahkamah Rayuan telah memutuskan antara lain bahawa: [1a] Section 265(3)(c) NLC does not mandate that an application for a substitute order for sale be treated by the court as a fresh application for an order for sale. The section merely confers the court with the power to substitute an order for sale made by the Land Administrator under s. 263 NLC with an order for sale under s. 256 NLC; or, in other words, to transform the order of the Land Administrator into an order of the High Court. It will, therefore, be unnecessary, in the circumstances, to issue a fresh notice in Form 16D. (pp 643 h & 644 a-d) 9 [1b] In issuing the order for sale, the Land Administrator had complied with all the procedural requirements of the NLC. The proceedings at that stage were also not challenged by the borrower. The borrower could also have continued with her appeal before the High Court under s. 418 NLC but she chose not to proceed with it. Consequently, the merits and the validity of the order for sale issued by the Land Administrator could not be challenged at the proceedings brought by the bank for the substitute order for sale. (p 644 e-f) [11] Kedudukan dan prinsip undang-undang yang diutarakan oleh Mahkamah Rayuan menerusi penghakiman Nik Hashim, HMR (YA ketika itu) telah juga yang diberikan penekanan sekali lagi oleh Mahkamah Rayuan di dalam kes STANDARD CHARTERED BANK v MOHD NAZRO BIN ZULKIPELI [2009] 1 LNS 379. Di dalam kes STANDARD CHARTERED BANK ini, di perenggan 15 penghakiman oleh Abu Samah Nordin, HMR (YA ketika itu) telah dinyatakan seperti berikut: “[15] Whilst it can be seen that an application to the Court under section 265(3) of the Code is merely a continuation of the proceeding of transforming the order for sale by the Land Administrator into that 10 of the High Court (Lee Gee Pheng v. RHB Bank Bhd), we are of the view that the Court is not obliged to make an order of sale under section 265(3) read with section 256 of the Code if it is satisfied that there is in existence cause to the contrary. Section 265(3)(c) clearly states that “the Court may substitute for the order of the Land Administrator an order for sale under section 256, or make such other order as it may think fit” (our emphasis). Although the power of the Court to make an order for sale under section 256(3) of the Code is confined only to land held under the registry title, the Court is immediately seized of jurisdiction to deal with the land held under the land office title upon reference by the Land Administrator. The Court’s power under section 256(3) of the Code is not only limited to substituting the order of sale of the Land Administrator with its own order of sale but it can decline to make an order of sale if it is satisfied of the existence of cause to the contrary. The Court does not act as a mere rubber stamp and dutifully makes its own order of sale in place of the order of sale by the Land Administrator regardless of any statutory non-compliance under the code. [12] Mahkamah Rayuan di dalam kes STANDARD CHARTERED BANK ini telah memutuskan bahawa walaupun permohonan di bawah seksyen 265(3A) KTN merupakan kesinambungan prosiding penjualan hartanah di bawah satu gadaian melalui lelongan awam 11 yang mana perintah penjualan diperolehi dari Pentadbir Tanah digantikan kepada suatu perintah yang dikeluarkan oleh Mahkamah Tinggi, penggantian ini menjadikan bidang kuasa ke atas tanah yang dipegang oleh Pejabat Tanah (land held under the land office title) kini telah diletakkan di bawah bidang kuasa Mahkamah. Namun, Mahkamah Rayuan di dalam kes STANDARD CHARTERED BANK seterusnya telah memutuskan bahawa bidangkuasa ini bukanlah suatu bidangkuasa terhad dan semata-mata setakat penggantian perintah penjualan. Mahkamah tidak boleh bertindak seperti rubber stamp atau pengendors sahaja menggantikan perintah penjualan tersebut tanpa mengambil kira bahawa terdapat ketidakpatuhan kehendak-kehendak statutori di bawah KTN di dalam perintah yang diperolehi dari Pentadbir Tanah yang mewujudkan kausa yang bertentangan di mana Mahkamah boleh menolak permohonan penggantian tersebut. [13] Daripada pemutusan kedua-dua kes Mahkamah Rayuan tersebut, Mahkamah ini menyimpulkan prinsip-prinsip yang diutarakan oleh kedua-dua kes tersebut seperti berikut: 12 (i) permohonan menggantikan perintah penjualan di bawah seksyen 265(3A) KTN adalah merupakan kesinambungan prosiding penjualan hartanah di bawah satu gadaian melalui lelongan awam yang mana yang perintah penjualan diperolehi dari Pentadbir Tanah digantikan kepada suatu perintah yang dikeluarkan oleh Mahkamah Tinggi. (ii) penggantian ini menjadikan bidang kuasa ke atas tanah yang dipegang oleh Pejabat Tanah (land held under the land office title) yang dipegang oleh Pentadbir Tanah Mahkamah Tinggi kini telah diletakkan di bawah bidang kuasa Mahkamah. (iii) bagi mendapatkan perintah menurut seksyen 265(A) ini, perintah jualan yang diperolehi daripada Pentadbir Tanah telah mematuhi semua kehendak-kehendak prosedur di bawah KTN bagi mendapatkan perintah tersebut dari Pentadbir Tanah dan peminjam tidak mencabarnya semasa prosiding untuk mendapatkan perintah tersebut. (iv) bidangkuasa Mahkamah di dalam penggantian ini bukanlah suatu bidangkuasa terhad dan semata-mata setakat penggantian perintah penjualan di mana Mahkamah tidak boleh bertindak seperti rubber stamp atau pengendors sahaja menggantikan perintah penjualan tersebut tanpa mengambil kira bahawa terdapat ketidakpatuhan 13 kehendak-kehendak statutori di bawah KTN di dalam memperolehi perintah daripada Pentadbir Tanah yang mewujudkan kausa yang bertentangan. (v) Sekiranya Mahkamah mendapati bahawa di dalam pemerolehan perintah penjualan dari Pentadbir Tanah terdapat ketidakpatuhan kehendak-kehendak statutori di bawah KTN yang mewujudkan kausa yang bertentangan, Mahkamah boleh menolak permohonan penggantian tersebut. (penekanan oleh Mahkamah ini) [14] Berbalik kepada kes di hadapan Mahkamah ini, bagi Defendan menepis permohonan Plaintif untuk menggantikan perintah penjualan hartanah oleh Pentadbir Tanah kepada perintah penjualan oleh Mahkamah, Defendan hendaklah membangkitkan bahawa di dalam pemerolehan perintah penjualan dari Pentadbir Tanah terdapat ketidakpatuhan kehendak-kehendak statutori di bawah KTN oleh pihak Plaintif yang mewujudkan kausa yang bertentangan. [15] Bagi takrifan frasa kausa yang bertentangan, Mahkamah ini tidak boleh lari dari merujuk kepada kes Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 AMR 1036, di mana Mahkamah Agung di dalam 14 kes Low Lee Lian ini telah mengkategorikan frasa kausa yang bertentangan dengan memutuskan antara lain seperti berikut: “It is not sufficient to allege mere breaches by the chargee of the loan agreement between the chargee and the borrower, or even of the terms of the annexure to the charge in order to resist an application under s 256(3) of the NLC. An allegation that the chargee acted in breach of contract, while it may give rise to an independent action in personam, is insufficient per se to defeat the ad rem rights of a chargee under his registered charge to an order for sale. [SEE P 1053 LINE 42 – P 1054 LINE 5] These are the following categories of cases where cause to the contrary within s 256(3) of the NLC may be established: (i) Firstly, a chargor who is able to bring his case within any of the exceptions to the indefeasibility doctrine housed in s 340 of the NLC. (ii) Secondly, a chargor may show cause to the contrary within s 256(3) of the Code by demonstrating that the chargee has failed to meet the conditions precedent for the making of an application for an order of sale, for e.g. failure on the part of the chargee to prove the making of a demand or service upon the chargor of a notice in Form 16D would 15 constitute cause to the contrary. Similarly where the notice demands sums not lawfully due from the chargee. (iii) Thirdly, a chargor may defeat an application for an order of sale by demonstrating that its grant would be contrary to some rule of law or equity.” [16] Di dalam mencapai pendekatan terhad dengan memberikan tiga kategori kausa yang bertentangan ini, Mahkamah Agung telah memberikan alasan-alasannya dengan berkata di muka surat 1054 begini: “We are conscious that the approach we have adopted results in a very narrow and restrictive interpretation of s 256(3) of the code. But there are good reasons of policy for such an interpretation. It must not be forgotten that in the ordinary way, banks and other financial institutions loan money deposited with them by their customers to a borrower on the faith of the security of a charge created over the landed property of the borrower, or as here, of a third party. In the event of a default by the borrower, the lending institution normally looks to early recovery of all or a substantial part of the money due to them from a sale of a security. If the courts of this country interpret the phrase ‘cause to the contrary’ appearing in s 256(3) of 16 the Code liberally, then, institutional lenders would lose confidence in their right to realize their security through an order for sale. Financial institutions would then become reluctant to lend money to bonafide entrepreneurs. Commerce would come to a standstill and the development of land and industries in this country which are largely dependent upon loans from banks would cease. No judgment of this court will be designed to produce such a consequence. [17] Daripada afidavit-afidavit yang difailkan oleh Defendan bagi menentang permohonan Plaintif, peguam Defendan telah cuba bergantung kepada pemutusan Mahkamah Rayuan di dalam kes STANDARD CHARTERED BANK dengan membangkitkan alasan- alasan berikut: (i) Plaintif telah gagal mematuhi Perintah Mahkamah Tinggi Kuala Lumpur bertarikh 26.4.2013. (ii) Plaintif telah gagal mengemukakan Perintah Jualan Pentadbir Tanah Daerah bertarikh 05.05.1994 yang ingin digantikan dengan perintah Mahkamah. 17 (iii) Sijil Rujukan Mahkamah Oleh Pentadbir Tanah Petaling adalah dipertikaikan. (iv) Tuntutan Plaintif dihalang oleh batasan had masa menurut seksyen 6(3) Akta Had Masa, 1953 atau secara alternatif, tindakan Plaintif adalah dihalang oleh batasan had masa menurut seksyen 21 Akta Had Masa 1953. (v) Tindakan Plaintif dihalang oleh doktrin “laches” (vi) Tanggungjawab dan liabiliti kontraktual Defendan telah lupus (“extinguish”) (vii) Plaintif dihalang menurut seksyen 21(5) Akta Had Masa, 1953 untuk menuntut faedah selepas tempoh enam (6) tahun ianya menjadi terakru Isu (i): Plaintif telah gagal mematuhi Perintah Mahkamah Tinggi Kuala Lumpur bertarikh 26.4.2013. [18] Defendan telah menghujahkan bahawa Plaintif melalui Saman Pemula No.24NCVC-785-03/2012 yang difailkan di Mahkamah Tinggi Kuala Lumpur pada bulan Mac, 2012 telah membuat permohonan 18 yang serupa. Di dalam kes di Mahkamah Tinggi Kuala Lumpur tesebut, selepas mendengar hujahan kedua-dua pihak, Hakim Mahkamah Tinggi pada 26.4.2013 telah membenarkan Plaintif untuk menarik balik tindakannya dengan kebebasan untuk memfailkan semula tertakluk kepada syarat-syarat seperti berikut:- (a) Defendan dibenarkan membangkitkan isu-isu fakta dan undang- undang yang dibangkitkan dalam permohonan Saman Pemula ini terhadap sebarang tindakan yang akan difailkan semula oleh Plaintif; (b) Plaintif memaklumkan kepada Defendan terhadap kiraan (“computation”) yang dikemukakan bersama faedah secara terperinci dengan mencatatkan sebarang deposit yang dibayar dalam sebarang lelongan awam yang diadakan yang mana telah dirampas (“forfeited”) oleh Plaintif; (c) Defendan juga bebas untuk membangkitkan sebarang bantahan terhadap prosedur pada masa rujukan oleh Pentadbir Tanah kepada Mahkamah; dan [19] Menurut Defendan lagi, Plaintif terpaksa menarik balik tindakannya kerana suratcara Plaintif adalah tidak teratur di mana Plaintif telah 19 gagal untuk mengemukakan sebarang penyata akaun menunjukkan pengiraan faedah serta samada bayaran-bayaran deposit oleh pembida yang telah dilucutkan haknya telah diambil kira. [20] Defendan telah menghujahkan selanjutnya bahawa di dalam perintah 26.4.2013 telah dengan nyatanya memerintahkan supaya Plaintif mengemukakan pengiraan bersama faedah secara terperinci dengan mencatatkan sebarang deposit yang dibayar dalam lelongan awam yang telah diadakan oleh Plaintif. Menurut Defendan perintah ini telah gagal dipatuhi oleh Plaintif. [21] Untuk menyokong hujahannya, peguam Defendan telah merujuk kepada buku teks “Enforcement of Charges Hand Book” oleh Wong Kim Fatt, Table 13 yang telah merujuk kepada prosedur “Reference to High Court after unsuccessful sale” di mana Borang 111 (Saman Pemula) dan Borang 112 (Afidavit). Menurut peguam lagi, Borang 112 dalam buku teks tersebut telah menyatakan Afidavit Sokongan permohonan hendaklah mengemukakan butir-butir pengiraan dan mengekshibitkan Penyata Akaun dan perenggan 7 Borang 112 berbunyi berikut: 20 “7. The amount due and ought to be paid by the Defendants as at the date of the …….. day of …….. amounts to the amount of RM………………… A copy of the statement of Account is annexed and marked as exhibit ‘XYZ-3’.” [22] Peguam Defendan selanjutnya berhujah bahawa Borang 112 hendaklah dijadikan sebagai panduan. Menurut Defendan lagi, Plaintif di dalam kes ini telah gagal mengemukakan sebarang pengiraan secara terperinci yang juga mengambil kira deposit-deposit yang telah pun dibayar dan dirampas. Secara ringkasnya, Defendan telah menghujahkan bahawa Plaintif tidak berbuat seperti berikut: - tidak mengemukakan sebarang Penyata Akaun dalam Afidavit Sokongannya. - sehingga kini tidak dapat mengemukakan sebarang dokumen untuk membuktikan bahawa deposit-deposit ini telah pun diambil kira terhadap jumlah yang dihutang; - sehingga kini Plaintif gagal untuk mengemukakan sebarang Penyata Akaun untuk membuktikan hutang atau jumlah yang tertunggak. [23] Justeru itu, jumlah keberhutangan Defendan sebanyak RM539,597.72 yang dituntut Plaintif adalah dipertikaikan Defendan. 21 [24] Defendan telah juga menghujahkan bahawa terdapat kegagalan di pihak Plaintif mematuhi perintah yang telah diberikan Hakim VT Singham, pada 26.4.2013 apabila YA telah membenarkan Plaintif untuk menarik balik tindakannya dengan kebebasan untuk memfailkan semula di dalam Saman Pemula No.24NCVC-785- 03/2012. Plaintif telah dikatakan gagal memaklumkan kepada Defendan terhadap kiraan (“computation”) yang dikemukakan bersama faedah secara terperinci dengan mencatatkan sebarang deposit yang dibayar dalam sebarang lelongan awam yang diadakan yang mana telah dirampas (“forfeited”) oleh Plaintif. Di dalam erti kata lain, Plaintif gagal mengemukakan Penyata Akaun yang memperincikan butir-butir yang cukup atas jumlah yang dihutang oleh Defendan kepada Plaintif dan mempertikaikan serta menafikan hutang yang berjumlah RM539,597.72 kepada Plaintif. [25] Plaintif sebaliknya telah menangkis hujahan Defendan dengan menghujahkan berikut: (i) alasan-alasan yang dibangkitkan oleh Defendan berkenaan penyata akaun, perincian butir-butir keberhutangannya, ketidakpatuhan 22 perintah bertarikh 26.4.2013 dan penyangkalan keberhutangannya kepada Plaintif sebanyak RM539,597.72 adalah merupakan alasan- alasan yang afterthought yang tidak mempunyai merit. (ii) Defendan sejak dari mula Plaintif memulakan prosiding penguatkuasaan remedi statutorinya di Pejabat Tanah, dua penjualan yang tidak berjaya sehinggalah permohonan ini di hadapan Mahkamah ini tidak pernah mencabar tindakan yang diambil Plaintif dan tidak pernah mencabar perintah jualan yang diperolehi Plaintif dari Pentadbir Tanah. (iii) Defendan tidak pernah menafikan tanggungan hutangnya terhadap Plaintif dan sememangnya Defendan mempunyai pengetahuan berkenaan keberhutangannya terhadap Plaintif di bawah gadaian tersebut. (iv) Defendan sebenarnya mengetahui jumlah yang masih terhutang kepada Plaintif kerana pengiraan jumlah terhutang adalah berdasarkan amaun prinsipal yang diberi sebanyak RM130,000.00 pada kadar faedah yang terkandung dalam dokumen gadaian dan surat tawaran pinjaman. (v) Perintah penjualan yang dikeluarkan oleh Pentadbir Tanah yang tidak pernah dicabar oleh Defendan dan sehingga kini masih 23 terpakai. Defendan juga tidak pernah membuat permohonan untuk mengenepikan perintah penjualan yang diperolehi Plaintif. Dapatan Mahkamah atas isu (i) [26] Apa yang nyata di hadapan Mahkamah ini adalah permohonan yang dibuat Plaintif adalah berdasarkan Sijil Rujukan yang telah dikeluarkan Pentadbir Tanah atas kegagalan menjual hartanah tersebut oleh Pentadbir Tanah di pejabat tanah. Berdasarkan kes LEE GEE PHENG dan STANDARD CHARTERED BANK telah menjadi prinsip undang-undang yang mantap dan jitu bahawa permohonan di bawah seksyen 265(3A) KTN adalah permohonan untuk perintah penjualan gantian dan bukannya satu permohonan baru untuk mendapatkan perintah penjualan. Mahkamah ini di perenggan 13 penghakiman ini telahpun menyimpulkan prinsip- prinsip undang-undang dari pemutusan kedua-dua kes Mahkamah Rayuan di dalam perihal perkara pemohonan menurut seksyen 265(3A) KTN ini. [27] Mahkamah ini perlu menekankan di sini bahawa di dalam di afidavit- afidavit Defendan menentang permohonan Plaintif, alasan-alasan 24 yang dibangkitkan oleh Defendan tidak langsung menyentuh mengenai perintah penjualan yang telahpun diperolehi oleh Plaintif. Afidavit-afidavit tersebut juga tidak menimbulkan sebarang ketidakpatuhan di pihak Plaintif terhadap apa-apa syarat (condition) atau prasyarat (pre-condition) yang ditetapkan oleh mana-mana undang-undang bagi mendapatkan perintah penjualan daripada Pentadbir Tanah. Apa yang ditimbulkan atau dibangkitkan oleh Defendan hanyalah alasan-alasan yang timbul selepas pemerolehan perintah penjualan Pentadbir Tanah yang kononnya ketidakpatuhan- ketidakpatuhan oleh Plaintif di dalam membuat permohonan di bawah seksyen 265(3A) KTN seperti ketiadaan penyata akaun, perincian butir-butir keberhutangan dan ketidakpatuhan perintah mahkamah bertarikh 26.4.2013 berkaitan perincian butir-butir keberhutangan. [28] Mahkamah perlu mengulangi di sini sekali lagi bahawa permohonan di hadapan mahkamah ini bukanlah satu permohonan baru untuk satu perintah penjualan yang mana bagi menangkis ianya dikeluarkan, seseorang pemberi gadaian boleh menimbulkan kausa yang bertentangan dengan menimbulkan perincian butir-butir atau 25 penyata akaun hutang yang tidak diberikan oleh pemegang gadaian yang boleh menjurus kepada kegagalan mematuhi butiran-butiran yang dikehendaki di bawah Aturan 83 Kaedah-Kaedah Mahkamah Tinggi 2012 (KKM 2012) ataupun kegagalan pemegang gadaian menyerahkan Borang 16D kepada pemberi gadaian yang akan menyatakan secara tepat dan spesifik jumlah keberhutangan pemberi gadaian kepadanya seperti yang berlaku di dalam kes Standard Chartered Bank. [29] Di dalam kes ini, Notis Borang 16 D atau Aturan 83 KKM 2012 tidak berbangkit kerana pertamanya, perintah jualan sememangnya telah diperolehi oleh Plaintif. Keduanya, Defendan tidak langsung menimbulkan sebarang ketidakpatuhan Plaintif terhadap mana-mana kehendak undang-undang di dalam memperolehi perintah jualan daripada Pentadbir Tanah. Ketiganya, menurut undang-undang dan otoriti-otoriti, tujuan butiran-butiran yang ditimbulkan oleh Defendan ini, perlu diberikan kepada Defendan adalah untuk Defendan memikirkan samada untuk menjelaskan hutangnya bagi menyelamatkan hartanah tersebut daripada lelongan dengan membayar jumlah hutang tertunggak ataupun menentang 26 permohonan Plaintif daripada mendapatkan perintah penjualan untuk menjual hartanah melalui lelongan awam. [30] Di dalam hal ini, molek rasanya Mahkamah ini merujuk kepada penghakiman oleh Mahadev Shankar H (YA pada masa itu) di dalam kes Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608 mengenai objektif Aturan 83 KKM 2012 dan butiran-butiran yang perlu bagi mematuhi Aturan 83 ini. Di dalam kes Citibank NA ini, Mahadev Shankar H telah memutuskan bahawa: “(2) The Objective of O 83 r 3 is to enable the defendant to know at least by the date the originating summons is filed, what is the exact sum he is legally liable to pay so that he can make up his mind to contest or pay up. If there is a dispute as to the amount payable, the court must be able to say precisely when making its order ‘the total amount due to the charge at the date on which the order is made’. These words are from s 257(1)(c) of the National Land Code 1965 and they are mandatory.” (penekanan Mahkamah ini) [31] Hakim Mahadev Shankar seterusnya di muka surat 615 penghakimannya telah berkata: 27 “What the chargor has lost where there is a failure to comply with Order 83 r 3(3) is opportunity to satisfy himself of the correctness of the amount claimed, and to challenge the figures if he is not. A bare denial of a debt was never enough. The chargor also has an onus if he denies the amount claimed to say how much he admits owing. In this kind of case the dismissal of the application for non-compliance with some aspect of the rules does not extinguish the debt. The chargee can start afresh but there will then be additional costs, interest and delay.” (penekanan oleh Mahkamah ini) [32] Di dalam kes ini, perintah yang dipohon oleh Plaintif adalah menggantikan perintah Pentadbir Tanah kepada perintah penjualan oleh Mahkamah. Di dalam hal ini, Defendan tidak merujuk kepada Mahkamah ini peruntukan undang-undang yang memerlukan Plaintif untuk memberikan penyata akaun yang lengkap dan terperinci bagi mendapatkan perintah penggantian tersebut. Apabila Defendan gagal menunjukkan kehendak undang-undang yang memerlukan sedemikian, alasan yang dibangkitkan oleh Defendan tidak mungkin mewujudkan kausa yang bertentangan. Apa yang pasti Plaintif telahpun memaklumkan di dalam afidavitnya bahawa jumlah sebenar keberhutangan Defendan setakat 14.11.2014 adalah RM 539,597.72. 28 [33] Peguam Defendan ada merujuk kepada Mahkamah ini buku teks “Enforcement of Charges Hand Book” oleh Wong Kim Fatt” di mana peguam Defendan telah menghujahkan bahawa Borang 112 di dalam buku itu dijadikan panduan. [34] Mahkamah ini berpandangan bahawa Borang 112 tersebut adalah saranan penulis dan bukannya berdasarkan kehendak atau prosedur atau formaliti undang-undang yang perlu dipatuhi oleh Plaintif di dalam membuat permohonannya di bawah seksyen 265(3A) KTN. Bagi Mahkamah ini, memang tidak ada salahnya sekiranya penyata akaun dieksibitkan tetapi bagi Mahkamah ini ketiadaannya tidaklah menimbulkan apa-apa kecacatan ataupun ketidakpatuhan undang- undang pun. [35] Apatah lagi di dalam kes ini, tidak timbul isu mengenai tujuan untuk memaklumkan kepada Defendan jumlah yang terhutang bagi akaun pinjaman perumahannya untuk Defendan memikirkan atau membuat keputusan samada untuk menjelaskan hutang yang tertunggak bagi menyelamatkan hartanah tersebut daripada dilelong Plaintif. Perintah penjualan telahpun dikeluarkan dan dua lelongan awam 29 yang dijalankan tidak berjaya menjual hartanah tersebut. Apa yang nyata, tingkah laku Defendan selama ini adalah tidak menghalang perintah penjualan dikeluarkan dan juga telah membiarkan Plaintif meneruskan dengan prosiding halang tebus. Defendan sememangnya tidak berhasrat untuk membayar hutangnya dan cuba mengelak perintah penggantian perintah penjualan hartanah tersebut dengan alasan-alasan remeh dan afterthought. [36] Di dalam hal ini, Mahkamah ini mesti menyatakan di sini bahawa sebenarnya Defendan sememangnya tidak begitu serius di dalam mahu mengetahui butir-butir pengiraan hutangnya untuk menyelamatkan hartanah tersebut daripada dilelong oleh Plaintif. Mahkamah berkata begini kerana keterangan dokumentari Defendan sendiri menujukkan Defendan mahu menggunakan peluang isu batasan masa untuk mengelakkan pembayaran hutangnya. Di Eksibit “D” affidavit Kandungan 5nya, Defendan telah mengeksibitkan surat Mahmood bin Nik Mat yang telah menulis surat bertarikh 30.03.2009 kepada Plaintif memohon hartanah tersebut dilepaskan daripada gadaian atas alasan tindakan undang-undang Plaintif adalah 30 dihalang oleh batasan masa. Surat bertarikh 30.03.2009 tersebut diperturunkan di bawah ini: Nik Mahmood Bin Nik Mat P/A 1546/08 (Nik Abdul Rahman Bin Nik Mat) (Wan Zubaidah Binti Wan Mahmood) No. 7, Jalan SS4C/18 47301 Petaling Jaya Selangor. 30-03-2009 _____________________________________________________________________ CIMB Bank Damansara Dear Sir, H.S(M) 124 Lot 7663, Lelongan Awam 31-10-1988, Proprietor: Nik Abdul Rahman Bin Nik Mat, Wan Zubaidah Binti Wan Mahmood. With reference to the above property where it was first auction on 31-10- 1988 and now after twenty years it became time barred for further legal action. Due to this limitation please take necessary steps to discharge the property accordingly. Enclose here with necessary document for your verification. Thank you. [37] Kandungan surat yang sama telah diulangi peguam Defendan melalui surat Suria Kumar & Co bertarikh 12.3.2014 yang berbunyi berikut: We act for the borrowers and refer to the above matter. 31 Our clients obtained a loan facility from Bank Bumiputra Malaysia Berhad. Pursuant to an order of Court dated 03.09.1999 all the assets and liabilities of the said bank were vested on you. Our clients instruct us that you are now time barred from enforcing the charge registered on the abovementioned property. Therefore, our clients request you to discharge the charge forthwith. Yours faithfully, t.t. ……………………………. Messrs Suria Kumar & Co c.c Clients [38] Daripada surat-surat ini, Defendan bukan sahaja langsung tidak bertanyakan status akaun pinjaman perumahan mereka malahan tidak berhasrat untuk mengetahui kedudukan hutang mereka ataupun mahukan perincian butir-butir pengiraan hutang mereka dengan Plaintif. Malahan mereka meminta hartanah tersebut dilepaskan daripada gadaian atas alasan yang kononnya tindakan undang- undang Plaintif dihalang oleh batasan masa. Mahkamah ini berpandangan bahawa tingkahlaku Defendan sedemikian berbaur 32 mala fide dan tidak jujur. Mahkamah ini tidak boleh membenarkan perlakuan sebegini. [39] Mengenai perintah Mahkamah bertarikh 26.4.2013 pula, Mahkamah ini menyedari bahawa salah satu syarat penarikan balik Saman Pemula terdahulu yang telah direkodkan oleh YA Hakim adalah Plaintif perlu memaklumkan kepada Defendan terhadap kiraan (“computation”) yang dikemukakan bersama faedah secara terperinci dengan mencatatkan sebarang deposit yang dibayar dalam sebarang lelongan awam yang diadakan yang mana telah dirampas (“forfeited”) oleh Plaintif. Persoalan yang timbul di dalam hal ini adalah samada mahkamah ini terikat dengan syarat ini walaupun undang-undang tidak memperuntukan sedemikian. Mahkamah ini berpandangan ketidakpatuhan syarat ini tidak menjejaskan permohonan Plaintif kerana tidak ada peruntukan atau prosedur undang-undang yang memperuntukkan bahawa untuk sesuatu permohanan penggantian atau penukaran perintah, butir-butir terperinci perlu diberikan kepada Defendan. Tambahan lagi di dalam kes ini, daripada tingkahlaku Defendan yang selama ini tidak pernah mempertikaikan hutangnya selama ini, tidak pernah mempertikaikan perintah penjualan yang 33 dikeluarkan, tidak berhasrat untuk melunaskan hutang tertunggaknya, maka ketiadaan perincian butir-butir tidak akan memberi kesan prejudis atau ketidakadilan langsung kepada Defendan. Menolak permohonan Plaintif sekadar atas alasan ketidakpatuhan perintah Mahkamah akan hanya menyebabkan kos dan faedah bertambah dan kelewatan. Dalam hal ini suka Mahkamah ini, meminjam kata-kata Mahadev Shankar H (YA pada masa itu) di dalam kes Citibank NA sekali lagi seperti berikut: “In this kind of case the dismissal of the application for non-compliance with some aspect of the rules does not extinguish the debt. The chargee can start afresh but there will then be additional costs, interest and delay.”(penekanan oleh Mahkamah ini) [40] Adalah menjadi dapatan Mahkamah ini, alasan-alasan yang ditimbulkan Defendan bukanlah suatu kausa yang bertentangan. Isu (ii): Plaintif gagal mengemukakan Perintah Jualan Pentadbir Tanah Daerah bertarikh 05.05.1994 yang ingin digantikan dengan Perintah Mahkamah. 34 [41] Defendan menghujahkan bahawa Plaintif gagal mengemukakan sebarang dokumen menunjukkan hartanah tersebut telah dilelong sebanyak dua kali oleh Pejabat Tanah sebelum ini. Adalah dihujahkan selanjutnya oleh Defendan selain daripada Sijil Rujukan oleh Pentadbir Tanah (Ekshibit “PA-3”, Kandungan 2) bahawa Plaintif telah gagal mengemukakan sebarang bukti untuk menunjukkan bahawa Pentadbir Tanah telah membuat Perintah Jualan dua (2) kali serta mengadakan lelongan awam dua (2) kali sebelum ini. [42] Adalah menjadi hujahan Defendan bahawa tanpa perintah-perintah jualan Pentadbir Daerah Petaling khasnya perintah jualan bertarikh 05.05.1994, mana mungkin Mahkamah ini mempunyai kuasa untuk menggantikan Perintah tersebut. Menurut peguam Defendan, bidangkuasa Mahkamah hanya boleh timbul apabila perintah jualan pentadbir tanah dikemukakan (“the High Court can only be seized of jurisdiction when the Land Office order for sale is produced”.) Dapatan Mahkamah atas isu (ii) [43] Di dalam hal ini, Mahkamah ini berpandangan bahawa Defendan nampaknya telah menyalahkan Plaintif atas sesuatu yang bukannya 35 merupakan keperluan undang-undang. Mahkamah telah menjelaskan di perenggan 13 tadi mengenai perihal kedudukan undang-undang permohonan di bawah seksyen 265(3A) KTN. Defendan kini cuba menimbulkan kausa yang bertentangan dengan membangkitkan kegagalan Plaintif untuk mengemukakan Perintah Jualan Pentadbir Tanah Daerah bertarikh 05.05.1994 yang ingin digantikan dengan Perintah Mahkamah. Untuk alasan ini, sekali lagi Defendan gagal merujuk kepada Mahkamah ini sebarang peruntukan atau prosedur undang-undang yang memerlukan pengemukaan perintah jualan di Pejabat Tanah sebagai prasyarat atau syarat atau formaliti yang diperlukan bagi satu permohonan di bawah seksyen 265(3A) KTN. Justeru, alasan ini adalah alasan remeh yang tidak berasas dan mana mungkin mewujudkan kausa yang bertentangan. Isu (iii): Sijil Rujukan Mahkamah oleh Pentadbir Tanah Petaling adalah dipertikaikan [44] Defendan telah mempertikaikan Sijil Rujukan Mahkamah oleh Pentadbir Tanah Petaling di atas alasan-alasan seperti berikut:- 36 (i) Sijil tersebut tidak menyatakan bahawa Pentadbir Tanah Petaling telah pun menarik balik penjualan hartanah tersebut sebagaimana yang dikehendaki oleh Seksyen 256(3)(b) Kanun Tanah Negara, 1965; (ii) Sijil tersebut tidak menyatakan Pentadbir Tanah Petaling yang merujuk kepada Mahkamah sebagaimana yang dikehendaki oleh Seksyen 256(3)(b) Kanun Tanah Negara, 1965; (iii) Sijil tersebut langsung tidak memberikan butir-butir seperti Nombor Gadaian, Jumlah Digadai, Jumlah Hutang dan Tarikh Gagal Bayar Hutang; (iv) Sijil tersebut telah menyatakan dengan salah luas lot sebagai 565 kaki persegi sedangkan luas sebenar hartanah adalah 1,920 kaki persegi; (v) Sijil tersebut telah dikeluarkan selepas satu tempoh yang sangat lama iaitu hampir lapan tahun selepas tarikh jualan kedua yang kononnya telah diadakan pada 08.09.1994; dan (vi) Kelengahan di pihak Plaintif ini membebankan dan memprejudiskan Defendan. 37 Dapatan Mahkamah atas isu (iii) [45] Pertamanya, perlu dinyatakan di sini bagi alasan-alasan yang ditimbulkan Defendan di dalam mempertikaikan Sijil-Sijil Rujukan Mahkamah oleh Pentadbir Tanah Petaling sememangnya di luar kawalan Plaintif. Plaintif tidak boleh dipertanggungjawabkan atau dipersalahkan atas sijil yang dikeluarkan Pentadbir Tanah. Sijil Rujukan tersebut adalah dikeluarkan oleh Pentadbir Tanah dan Pentadbir Tanah adalah berkuasa penuh atas dokumen yang dikeluarkannya. Plaintif tidak langsung mempunyai input atas pengeluaran sijil tersebut. Kedua, alasan dan dapatan Mahkamah di perenggan 44 penghakiman juga terpakai bagi alasan ini. Isu (iv): Tuntutan Plaintif dihalang oleh batasan had masa menurut seksyen 6 (3) Akta Had Masa, 1953 ATAU secara alternatif, tindakan Plaintif dihalang oleh batasan had masa menurut seksyen 21 Akta Had Masa 1953. [46] Defendan telah menghujahkan bahawa tuntutan Plaintif adalah dihalang oleh batasan had masa menurut seksyen 6(3) Akta Had Masa, 1953 berdasarkan kepada alasan bahawa: 38 Perintah Jualan terhadap hartanah tersebut telah dibuat pertama kalinya pada 05.10.1988. Lanjutan daripada itu, lelongan awam telah telah diadakan pada 31.10.1988. Perintah Jualan yang dibuat pada pertama kalinya telah melebihi 26 tahun. Justeru, perintah jualan bertarikh 05.10.1988 telah melebihi tempoh dua belas (12) tahun. [47] Adalah menjadi hujahan Defendan bahawa perintah jualan tersebut tidak boleh dilaksanakan lagi kerana ianya dihalang oleh batasan had masa. Peguam Defendan telah merujuk kepada kes-kes (i) REEVES v BUTCHER [1981] 2 QB 509, (ii) NADEFINCO LTD v KEVIN CORPORATION SDN BHD [1978] 2 MLJ 59 (iii) WONG KOK LEONG & ANOR v RHB BANK BERHAD [2014] 6 AMR 281. [48] Menurut Defendan lagi, sekiranya Plaintif ingin melaksanakan Perintah Jualan yang kononnya dibuat dalam tahun 1993 dan tahun 1994, Plaintif adalah juga dihalang oleh batasan had masa kerana kedua-dua Perintah tersebut telah melampaui dua belas tahun (12) tahun sekarang. 39 [49] Defendan juga berhujah secara alternatif bahawa tindakan Plaintif adalah dihalang oleh batasan had masa menurut seksyen 21 Akta Had Masa, 1953 atas alasan bahawa kausa tindakan Plaintif untuk melaksanakan remedi statutori hanya timbul apabila Defendan ingkar untuk mematuhi Borang 16D yang dikeluarkan Plaintif. Memandangkan Perintah Jualan telah dikeluarkan pertama kalinya pada 05.10.1988, maka Borang 16D semestinya telah dikeluarkan sebelum tarikh 05.10.1988. Dengan itu kausa tindakan Plaintif telahpun terakru sebelum tarikh tersebut dan tempoh dua belas (12) tahun sudah telahpun berlalu. Tindakan Plaintif dengan yang demikian telah dihalang oleh batasan had masa menurut Seksyen 21(2) Akta Had Masa, 1953. Peguam Defendan telah merujuk kepada kes PEH LAI HUAT -v- MBF FINANCE BHD [2011] 3 MLJ 470. [50] Plaintif sebaliknya meghujahkan bahawa isu had masa tidak seharusnya dibangkitkan oleh Defendan memandangkan Perintah Penjualan telahpun dikeluarkan oleh Pejabat Tanah dan sehingga kini tidak pernah diketepikan oleh Defendan. Menurut Plaintif lagi, permohonan Plaintif bukanlah suatu tindakan baru yang difailkan. 40 [51] Plaintif seterusnya berhujah bahawa bantahan Defendan atas isu had masa adalah merupakan satu alasan Defendan untuk mengelakkan diri daripada tanggungjawab untuk membayar pinjaman yang telah diberikan oleh Plaintif. [52] Plaintif juga berhujah bahawa tindakan halangtebus ini adalah tidak dihalang oleh had masa kerana Perintah Jualan tersebut masih digunapakai dan tidak pernah diketepikan, maka hak dan kepentingan Plaintif untuk meneruskan tindakan halangtebus masih wujud dan berterusan. Dapatan Mahkamah atas isu (iv) [53] Di dalam kes Kandiah Peter v Public Bank Bhd [1994] 1 MLJ 119, Mahkamah Agung telah memutuskan antara lain bahawa: “[1] A chargee who makes an application for an order for sale in foreclosure proceedings under s 256 of the code does not commence an action. He merely enforces his rights as a chargee by exercising his statutory remedy against the chargor in default. The order for sale when made under s 256 of the code is not a judgment 41 or a decree. The court hearing the application for foreclosure does not make, and in any event ought not to make, any adjudication upon any substantive issues. [54] Telah dinyatakan di atas oleh Mahkamah Agung di dalam kes Kandiah Peter bahawa tindakan halang tebus yang diambil oleh pemegang gadaian bukanlah suatu tindakan yang dimulakan pemegang gadaian tetapi ianya hanya merupakan suatu penguatkuasaan hak statutorinya di atas kemungkiran penggadai. Adalah juga diputuskan oleh Mahkamah Agung di dalam kes Kandiah Peter bahawa perintah penjualan yang dibuat oleh Mahkamah menurut seksyen 256 KTN bukanlah suatu penghakiman mahupun dikri. [55] Dalam hal ini suka mahkamah ini merujuk kepada kes Peh Lai Huat v. MBF Finance Bhd. [2011] 3 MLJ 470 di mana Mahkamah Rayuan telah memutuskan antara lain bahawa: “[3] In my judgment the appellant overlooks a point that is central to this case. He has treated the respondent’s application to have the subject land sold in public auction as an action to recover the debt owed. That it certainly is not. The true nature of such a proceeding was described by Seah SCJ in 42 Malaysian International Merchant Bankers Bhd v Dhanoa Sdn Bhd [1988] 1 MLJ 257 as follows: The claim of the appellant in the court below was in exercise of their statutory remedy against the respondent as chargor in default under the provisions of the National Land Code. The appellant’s claim was not under a covenant but under the registered charge. American International Assurance Co Ltd v Union Builders (Malaysia) Sdn Bhd [1973] 1 MLJ 95, was prayed in aid of this conclusion. In that case, Ong CJ (Malaya) said: The chargees’ claim herein was not on the covenant but in exercise of their statutory remedy against a chargor in default. Hence there could not have been any merger. In this connection I might add in parenthesis that, ordinarily, a chargee hardly ever has occasion to sue on the covenant, except where the moneys realised fall short of the amount needed to satisfy his claim for principal and interest. Accordingly, s 21(1) of the Limitation Act 1953 which provides that: ‘(1) No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on land or personal property or to enforce such mortgage or charge, or to recover proceeds of the sale of land or personal property after the expiration of twelve years from the date when the right to receive the money accrued’ has no application to this case. The proceeding in the court below was not — to quote the words of the subsection — ‘an 43 action … brought to recover any principal sum of money secured by a mortgage.’ [4] Similarly, S 21(2) of the Limitation Act which reads:- (2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclose accrued: Provided that if after that date the mortgagee was in possession of the mortgaged property, right to foreclose on the property which was in his possession shall not, for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued. Also has no application to this case. That is because the cause of action here, that is to say, the right to exercise the statutory remedy of an Order for Sale did not arise until after the Appellate had failed to remedy the default specified in the Form 16D notice. The originating summons was here filed on 6 April 2011, well within the 12 year period prescribed by s 21 (2) of the Limitation Act. [56] Abdul Aziz Mohamad, HMR (YA ketika itu) di dalam kes PEH LAI HUAT yang telah bersetuju dengan pemutusan Gopal Sri Ram, HMR bahawa seksyen 21(1) Akta Had Masa tidak terpakai kepada 44 tindakan gadaian di mana pemegang gadaian menguatkuasakan remedi statutorinya dengan menyatakan berikut di muka surat 474: “The only reason why I decided that the appeal should be dismissed was the reason that is stated in para 3 of the judgment of my learned brother Gopal Sri Ram FCJ, that is, that s.21(1) of the Limitation Act 1953 did not apply to the respondent’s action because it was not an action brought to recover any principal sum of money secured by a charge but was an action in exercise of the right to the statutory remedy of an order for sale.” [57] Berdasarkan otoriti di atas, adalah menjadi undang-undang yang jitu dan mantap bahawa tindakan halang tebus yang diambil oleh pemegang gadaian bukanlah suatu tindakan yang dimulakan pemegang gadaian untuk menuntut kembali wang yang terhutang tetapi ianya hanya merupakan suatu penguatkuasaan hak atau remedi statutorinya di atas gadaian di atas kemungkiran penggadai. Perintah penjualan yang dibuat oleh Mahkamah menurut seksyen 256 KTN bukanlah suatu penghakiman mahupun dikri. Adalah menjadi undang-undang juga remedi statutori untuk satu perintah penjualan tidak timbul sehingga pemberi gadaian gagal meremedikan keingkarannya yang dinyatakan di dalam Borang 16D dan seksyen 45 21(1) Akta Had Masa tidak terpakai kepada tindakan gadaian di mana pemegang gadaian menguatkuasakan remedi statutorinya. [58] Atas kedudukan ini sahaja alasan Defendan mengenai had masa semestinya gagal. Tambahan kepada ini juga, Mahkamah ini telah menjelaskan di awal penghakiman tadi iaitu di perenggan 13 mengenai perihal kedudukan undang-undang bagi permohonan di bawah seksyen 265(3A) KTN. Apa yang jelas permohonan di bawah seksyen 265(3A) KTN adalah semata-mata untuk penggantian atau penukaran satu perintah penjualan tanah bagi tanah pegangan Pejabat Tanah yang dikeluarkan oleh seorang Pentadbir Tanah kepada Mahkamah. Apa yang penting di sini adalah perintah penjualan telahpun dibuat oleh Pentadbir Tanah setelah formaliti dan prosedur di bawah seksyen 254 KTN telah dipatuhi oleh Pemegang Gadaian dan Pentadbir Tanah pada masa itu yang telah berpuashati bahawa tidak wujud apa-apa kausa yang bertentangan telah mengeluarkan satu perintah penjualan di bawah seksyen 263 (1) KTN. Justeru, apabila perintah penjualan telahpun dikeluarkan oleh Pejabat Tanah, permohonan untuk penggantian atau penukaran perintah yang dibuat atas rujukan Pentadbir Tanah bukanlah satu 46 tindakan permohonan yang baru untuk perintah penjualan tanah seperti yang dihujahkan oleh Plaintif. Bagi permohonan baru untuk perintah penjualan, prinsip undang-undang telah mengatakan bahawa tindakan pemegang gadaian untuk satu perintah penjualan adalah penguatkuasaan remedi statutorinya dan bagi tindakan sebegini Akta Had Masa tidak terpakai. Maka, apatah lagi di dalam keadaan perintah penjualan telahpun diperolehi, isu batasan masa ini adalah tidak berbangkit langsung. Adalah dapatan Mahkamah ini bahawa Defendan semestinya gagal bagi isu ini. Isu (v): Tindakan Plaintif ini dihalang oleh doktrin “laches” Isu (vi): Tanggungjawab dan liabiliti kontraktual defendan-defendan telah pun lupus (“extinguish”) Isu (vii): Plaintif adalah dihalang untuk menuntut faedah selepas tempoh enam (6) tahun ianya menjadi terakru menurut seksyen 21(5) Akta Had Masa, 1953 [59] Defendan telah menghujahkan bahawa wujud kelengahan yang sangat ketara (laches) di pihak Plaintif untuk merealisasikan cagaran mereka. Menurut Defendan, gadaian telah didaftarkan pada 03.07.1981 dan Sijil Rujukan kepada Mahkamah oleh Pentadbir 47 Tanah Daerah Petaling telah dikeluarkan pada 04.09.2002. Plaintif hanya memfailkan tindakan ini pada 12.12.2014. Defendan telah bergantung kepada keputusan Edgar Joseph Jr, H (YA pada ketika itu) di dalam kes MALAYSIA BUILDING SOCIETY BHD –V- LIM KHENG KIM & ORS [1988] 1 CLJ (REP) 770, [60] Defendan juga telah menghujahkan bahawa tanggungjawab dan liabiliti kontraktual Defendan telah pun lupus bersandarkan alasan- alasan bahawa tindakan Plaintif adalah dihalang oleh batasan had masa dan doktrin “laches”. [61] Defendan juga berhujah bahawa Plaintif adalah dihalang untuk menuntut jumlah faedah selepas tempoh enam (6) tahun ianya menjadi terakru menurut Seksyen 21(5) Akta Had Masa, 1953. Dapatan Mahkamah atas isu (v), (vi) dan (vii) [62] Isu (v), (vi) dan (vii) yang ditimbulkan Defendan tidak boleh dipertahankan dan semestinya gagal atas dapatan Mahkamah ini di perenggan 57 dan 58 penghakiman. 48 [63] Sekadar satu pemerhatian, Mahkamah ini juga perlu menyatakan bahawa atas penelitian teliti dokumen-dokumen yang dikemukakan terdapat penemuan fakta di dalam kes ini seperti berikut: (a) surat tawaran pinjaman perumahan bertarikh 20-4-1981 telah dikeluarkan oleh Nik Mahmood bin Nik Mat sebagai pengurus bank BBMB. Nama pengurus bank BBMB Nik Mahmood bin Nik Mat yang menawarkan pinjaman kepada Defendan adalah sama dengan Pemegang Kuasa Wakil bertarikh 27.8.2008 (b) hartanah yang dibeli oleh Defendan dengan pinjaman perumahan yang diberi Plaintif adalah milik Nik Mahmood bin Nik Mat sendiri. (d) Nik Mahmood bin Nik Mat di dalam afidavit Kandungan 12nya yang diikrarkan pada 2.6.2015 telah mengikrarkan alamat kediamannya sebagai No.7, Jalan SS4C/18, Taman Rasa Sayang, 47301 Petaling Jaya, Selangor yang juga merupakan alamat hartanah yang dibeli oleh Defendan yang mana pinjaman perumahan telah diberikan dan hartanah menjadi perkara perihal dalam kes ini dijadikan sebagai sekuriti pinjaman tersebut. 49 (e) Menurut Borang 16A, KTN (Borang Gadaian) bertarikh 13.7.81, Defendan pada 13.7.81 juga beralamat yang sama iaitu No.7, Jalan SS4C/18, Taman Rasa Sayang, 47301 Petaling Jaya, Selangor Kesimpulan dan keputusan Mahkamah: [64] Atas alasan-alasan yang dinyatakan di atas, Mahkamah ini membenarkan permohonan Plaintif di dalam Kandungan 11 dan dengan ini menggantikan perintah penjualan hartanah Pentadbir Tanah kepada perintah penjualan oleh Mahkamah atas terma-terma yang dinyatakan dalam Kandungan 11. Defendan adalah diperintahkan membayar kos sebanyak RM5000.00 kepada Plaintif. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 4 haribulan Ogos, 2015 50 Peguam Plaintif - Tetuan Che Mokhtar & Ling Encik Lim Min Tet Peguam Defendan - Tetuan Suria Kumar & Co. Encik Suria Kumar Encik Dzul Ikram

Tika 2.6.0

15-68-08/2012

PERAYU MOHAMAD FAWZI BIN MOHD YUSOF RESPONDEN PEJABAT TANAH DAERAH HULU LANGAT

04/08/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=1c5a3f11-a8b6-49cd-9ca5-bec4416e0b52&Inline=true

Microsoft Word - 15-68-08-2012 Mohammad Fawzi b Mohd Yusof Lwn PTD Hulu Langat 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RUJUKAN TANAH NO: 15-68-08/2012 ANTARA MOHAMAD FAWZI BIN MOHD YUSOF ... PERAYU DAN PEJABAT TANAH DAERAH HULU LANGAT ... RESPONDEN ALASAN PENGHAKIMAN (Rujukan Tanah) [1] Rujukan tanah yang difailkan oleh Perayu di hadapan Mahkamah ini adalah berkaitan dengan pengambilan wajib tanah yang dipegang di bawah Lot 273, GM 940 Mukim Cheras, Daerah Hulu Langat (tanah 2    terlibat) untuk tujuan projek Mass Rapid Transit (MRT) Lembah Kelang Jajaran Sungai Buloh-Kajang. [2] Rujukan tanah yang difailkan Perayu ini bukanlah bantahan atas ketidakpuasan hati di atas nilai jumlah pampasan yang telah dibayar tetapi adalah bantahan terhadap pampasan yang didakwa tidak dibayar bagi perbezaan di antara keluasan asal tanah terlibat dan tanah yang dijadualkan (the area of scheduled land). [3] Latar belakang kes yang membawa kepada rujukan tanah di hadapan Mahkamah ini adalah seperti berikut: (i) Perayu (Mohamad Fawzi bin Mohd Yusof) adalah waris kepada seorang bernama Man bin Talip (si mati) yang telah meninggal dunia pada 13.6.1985. (ii) Si mati adalah tuanpunya berdaftar keseluruhan tanah terlibat. Melalui Geran Pentadbiran Kuasa No. 44-69-87 yang dikeluarkan oleh Mahkamah Tinggi Seremban, Rokiah binti Aman dan Mohamad Yusof bin Talib telah dilantik sebagai 3    pentadbir pusaka bersama harta pusaka si mati bagi tanah terlibat. Namun, kedua-dua pentadbir pusaka bersama telah meninggal dunia. Kini, Amanah Raya Berhad telah memohon sebagai Pentadbir de Bonis bagi semua waris si mati. (iii) Fakta yang tidak disangkal adalah bahawa sebelum apa-apa proses pengambilan tanah, keluasan asal tanah terlibat adalah 3.2602 hektar yang bersamaan 8.056 ekar. Pada masa bantahan dibuat, tanah terlibat telah melalui tiga (3) proses pengambilan tanah wajib untuk tujuan tiga projek yang berbeza iaitu projek menaik taraf sungai, Jabatan Parit Saliran (JPS), Lebuhraya Cheras-Kajang (Grand Saga) dan projek MRT. (iv) Bantahan Perayu di hadapan mahkamah ini, boleh dilihat dengan merujuk kepada ketiga-tiga pengambilan wajib tanah atas tanah terlibat dengan keluasan terlibat bagi setiap pengambilan seperti yang tertera di dalam jadual di bawah: 4    TANAH TERLIBAT TOLAK PROSES PENGAMBILAN TANAH KELUASAN ASAL TANAH 3.2602 HEKTAR - JUMLAH DAN TUJUAN PENGAMBILAN TANAH KELUASAN TANAH DIAMBIL 1) PROJEK NAIK TARAF SUNGAI JPS 0.5130 hektar (5130m2) (1.268 ekar) 2) LEBUHRAYA CHERAS-KAJANG 0.2009 HEKTAR (0.496 ekar) 3) PROJEK MRT 1.8659 HEKTAR (4.611 ekar) JUMLAH 2.5798 HEKTAR JUMLAH KELUASAN - JUMLAH PENGAMBILAN TANAH = 0.6804 HEKTAR 3.2602 HEKTAR 2.5798 HEKTAR (1.676 ekar) (8.056 ekar) (6.38 ekar) (v) Menurut Perayu, berdasarkan warta-warta pengambilan yang digazetkan, keluasan tanah yang terlibat dalam ketiga-tiga pengambilan adalah 2.5798 hektar. Warta-warta yang telah dikeluarkan oleh Kerajaan Negeri Selangor bagi ketiga-tiga pengambilan tanah ke atas tanah terlibat adalah seperti berikut: (i) Projek JPS : No. Perserahan 36/1992 Jld 3 Fol 151 Pengambilan Sebahagian Tanah seluas lebih kurang 5130 Meter Persegi. Borang K didaftarkan pada 2 Disember 1992 jam 3.40 petang. 5    (Rujukan Fail: PTD UL 7/21/1-89 SJ 33) (ii) Projek Grand Saga : Warta Kerajaan Negeri 1010 bertarikh 25.9.1997 No. Perserahan 128/1998 Jld 5 Fol 29 Pengambilan Sebahagian Tanah seluas lebih kurang 0.4964 Ekar (0.2009 Hektar). Borang K didaftarkan pada 7 Sept 1998 jam 8.30 pagi. (Rujukan Fail: PTG SEL 3/LLM/06/56 JLD. 1) (iii) Projek MRT : Warta Kerajaan Negeri 4229 bertarikh 15.11.2011 No. Perserahan 958/2012 Pengambilan Sebahagian Tanah seluas lebih kurang 1.8659 Hektar. Borang K didaftarkan pada 20 Nov 2012 jam 10.11 pagi No. Warta : 4229 bertarikh 15 Nov 2011. (Rujukan Fail: PTG SEL 3/LLM/06/56 JLD. 1) (vi) Adalah menjadi dakwaan Perayu bahawa memandangkan keluasan asal tanah terlibat adalah 3.2602 hektar dan keluasan tanah terlibat yang telah diambil secara wajib adalah 2.5798 hektar, maka terdapat perbezaan tanah yang diambil tetapi tidak dibayar pampasan untuk keluasan sebanyak 0.6804 hektar seperti kiraan di bawah ini: 3.2602 hektar - 2.5798 hektar = 0.6804 hektar 6    (vii) Justeru, Perayu telah mendakwa bahawa terdapat pencerobohan oleh Mass Rapid Corporation Sdn Bhd ke atas tanah terlibat seluas 0.6804 hektar (1.68 ekar) yang telahpun digunakan oleh MRT tetapi tiada pampasan telah dibayar untuk penggunaaan tanah tersebut. Oleh itu, seperti yang telah dinyatakan awal tadi, bantahan Perayu bukanlah bantahan atas ketidakpuasan hati atas nilai jumlah pampasan yang telah dibayar tetapi terhadap pampasan yang tidak dibayar bagi perbezaan di antara keluasan asal tanah terlibat dan tanah yang dijadualkan (the area of scheduled land). [4] Di dalam perenggan 4, Borang N, Perayu telah menyatakan seperti berikut: “Alasan-alasan bantahan saya adalah seperti berikut: Tanah diambil lebih besar. Perbezaan luas tanah diambil 0.6805 hek (6805 mp). Luas tanah asal 3,2602 hek dan baki selepas pengambilan terdahulu 2,5464 hek. Pengambilan Proj MRT baki keseluruhan tanah diwarta dan di Award 1.8659 hek.” 7    [5] Perlu dinyatakan bahawa rujukan Perayu ini telah dibuat atas proses pengambilan tanah yang ketiga iaitu pengambilan tanah untuk projek MRT. Perlu juga dinyatakan bahawa penilaian tanah tidak menjadi isu di dalam kes ini kerana kedua-dua laporan Pegawai Penilai Kerajaan dan Swasta mempunyai nilaian yang sama atas tanah terlibat iaitu nilaian pada RM650.00 semeter persegi. [6] Bagi proses pengambilan tanah yang ketiga ini, di dalam Borang H bertarikh 1.3.2012 tertera bahawa keluasan tanah terlibat yang diambil secara wajib adalah 1.8659 hektar dan awad pampasan yang dibayar oleh Pentadbir Tanah adalah RM12,128,350.00 pada kadar RM650.00 semeter persegi. [7] Perayu di dalam rujukan tanah ini menuntut bayaran pampasan dibayar kepadanya bagi keluasan 0.6804 hektar yang diambil tetapi tidak dibayar berjumlah sebanyak RM 4,423,250.00 pada kadar RM650.00 meter persegi. [8] Bagi menyokong dakwaan Perayu tersebut, Perayu telah melantik Encik Mohd Nor bin Hamzah Perunding Tanah dari DJ Consult untuk 8    menyediakan Laporan berdasarkan Pelan Pra Hitungan oleh Juruukur Berlesen Prisma Survey Consultants untuk Rujukan Tanah ini. Adalah dihujahkan oleh peguam Perayu bahawa di dalam affidavit Encik Mohd Nor bin Hamzah (Kandungan G) yang diikrarkan pada 27.12.2013 telah diyatakan dengan jelas bahawa semasa pengambilan tanah yang kedua (projek Lebuhraya Grand Saga), Pejabat Tanah Daerah Hulu Langat telah membuat dua pengendorsan melalui dua (2) presentasi di dalam Borang D dan Borang K bahawa keluasan tanah terlibat sebagai 0.4964 ekar (bersamaan 0.2009 hektar). Presentasi di dalam Borang D ke atas hakmilik EMR 2371, Lot 273 bagi tanah terlibat adalah digazetkan seperti di dalam Warta Kerajaan Negeri Selangor WKNS No. 1010 bertarikh 25.9.1997. Endorsmen Borang K telah dibuat di dalam Hakmilik EMR 2371 yang baru iaitu Geran Mukim (GM) 940 Cheras pada 14.5.2002. Carian tanah ke atas Suratan Hakmilik EMR 2371 pada 24.12.2013 terdapat endorsmen Borang D di atas Suratan Hakmilik tersebut. Endorsan tersebut menunjukkan bahawa perserahan 7/97 Pengambilan Tanah Seksyen 8 (Borang D) Jilid 1 Folio 172 cadangan hendak mengambil tanah seluas 0.4964 ekar didaftarkan pada 21.10.1997 pukul 11.00. 9    [9] Peguam Perayu menghujahkan lagi bahawa endorsmen Borang D ini adalah merupakan bukti eksklusif (exclusive evidence) bahawa cadangan pengambilan tanah merujuk kepada Jadual Tanah yang diwartakan di Borang D pada 25/9/1997. Endorsmen Borang D itu tidak diubah oleh mana-mana pihak-pihak sehingga tarikh carian tanah tersebut dibuat. (Endorsman Borang D atas Hakmilik EMR 2371 di Eksibit “MNH-A1, Afidavit Mohd Nor). Di dalam memohon rektifikasi Borang K, Responden hanya membuat permohonan untuk mengubah/meminda endorsmen unit keluasan di atas Suratan Hakmilik baru iaitu Geran Mukim 940, Lot 273 dan bukan di atas Suratan Hakmilik EMR 2371 yang mana suratan hakmilik EMR 2371 itu sebenarnya adalah suratan hakmilik yang diwartakan untuk pengambilan tanah, dan bukannya suratan hakmilik Geran Mukim 940. [10] Menurut peguam Perayu lagi, Responden hanya membuat permohonan untuk mengubah/meminda endorsmen Borang K sahaja dan Responden gagal mengubah/meminda endorsmen yang ada di dalam Borang D. 10    [11] Seterusnya peguam Perayu telah menghujahkan berdasarkan pelan pengambilan tanah yang disediakan oleh Juruukur Perunding Services untuk projek MRT ia tidak merujuk kepada rekod pemilikan/ pengurniaan tanah Lot 273 GM 940 yang terdapat di Pejabat Tanah Hulu Langat, Bangi (not bestowed to Land Office record). Pelan cadangan pengambilan tanah tersebut khusus kepada kawasan bertanda ‘Merah’ Portion A seluas 1.8659 hektar manakala bahagian tanah bertanda warna ‘Kuning’ Portion D kononnya sebahagian Right of Way (R.O.W) Lebuhraya di bawah Lembaga Lebuhraya Malaysia. Hakikatnya keluasan rasmi R.O.W Lebuhraya mengikut Borang K yang telah diendors di Hakmilik tanah ini seluas 0.4964 Ekar (0.2009 Hektar) iaitu Portion E. Apabila Jabatan Ukur dan Pemetaan (JUPEM Selangor) menjalankan kerja-kerja ukur R.O.W Lebuhraya Grand Saga mengikut Pelan Permintaan Ukur (PU SEL47/2006) dari JKPTG Cawangan Selangor dan keluasan R.O.W Lebuhraya diukur seluas 2.3712 Ekar. Right of Way lebuhraya hanya seluas 0.4964 Ekar (0.2009 hektar) telahpun diambil secara wajib (legally acquired) bagi projek MRT. 11    [12] Justeru itu, perbezaan keluasan di luar 1.8659 hektar yang telah digunapakai oleh projek MRT seluas 1.681 ekar atau 0.6804 hektar perlu diselesaikan di bawah Rujukan Tanah MT-15-68-08/2012 di Mahkamah Tinggi ini. [13] Responden pada awalnya telah menafikan sekeras-kerasnya tuntutan Perayu dengan menegaskan bahawa terdapat kesilapan di dalam pengendorsan Borang K bagi keluasan tanah terlibat semasa pengambilan tanah kedua (pengambilan Grand Saga) di mana menurut Responden keluasan tanah terlibat yang diambil sebenarnya adalah 0.4964 hektar dan bukannya 0.4964 ekar (bersamaan dengan 0.2009 hektar). Menurut Responden lagi kesilapan di dalam endorsmen Borang K adalah perkataan ekar telah tersilap tulis yang sepatutnya adalah hektar. [14] Pengataan Responden ini adalah bersandarkan afidavit Mohd Hafiz bin Jamaluddin @ Awang (Penolong Pengarah di Unit Pengambilan Jabatan Ketua Pengarah Tanah dan Galian Persekutuan, Cawangan Selangor, Unit Pengambilan Balik Tanah Shah Alam – Kandungan F) 12    yang diikrarkan pada 17 Disember 2013 di mana di perenggan 7, 8, 9, 10 dan 11 nya telah menyatakan berikut: 7. Saya sesungguhnya percaya dan mengatakan bahawa setelah luas ketiga-tiga pengambilan tersebut diambilkira, maka baki keluasan tanah yang sepatutnya adalah 0.3849 hektar dan bukan 0.6805 hektar seperti yang dinyatakan di dalam Borang N. 8. Selanjutnya, saya mengatakan bahawa setelah mendapati terdapatnya perbezaan baki keluasan ini, Responden telahpun membuat semakan lanjut dan mendapati bahawa berlakunya kesilapan pada Borang K bertarikh 23.10.1997 yang telah diendors pada 7 September 1998 No. Pers. 128/98 untuk pengambilan terdahulu bagi Projek Lebuhraya Cheras-Kajang (Grand Saga) dimana unit pengukuran yang sepatutnya digunakan adalah hektar dan bukan ekar. (Sesalinan Borang K bertarikh 23.10.1997 tersebut dilampirkan di sini sebagai “Ekshibit MH-1”). 9. Selanjutnya, saya mengatakan bahawa Responden kemudiannya membuat semakan semula ke atas warta pengambilan bagi maksud Projek Lebuhraya Cheras-Kajang (Grand Saga), Warta Kerajaan Negeri No. 1010 bertarikh 25.9.1997 dan mendapati unit pengukuran yang digunakan adalah hektar. 13    (Sesalinan Warta Kerajaan Negeri No. 1010 bertarikh 25.9.1997 tersebut dilampirkan di sini sebagai “Ekshibit MH-2”). 10. Saya sesungguhnya mengatakan bahawa lanjutan daripada itu, Responden kemudiannya telah membuat permohonan kepada Pejabat Daerah/Tanah Hulu Langat untuk pembetulan unit pengukuran pada endorsan dokumen hakmilik tersebut melalui surat bertarikh 29.10.2013. Pembetulan telah dibuat oleh Pejabat Tanah pada 7.11.2013 dan carian hakmilik terkini menunjukkan pengambilan terdahulu telahpun ditukar kepada unit hektar. (Sesalinan surat permohonan bertarikh 29.10.2013 dan salinan carian hakmilik terkini tersebut dilampirkan di sini secara kolektif sebagai “Ekshibit MH-3”). 11. Saya sesungguhnya percaya dan mengatakan bahawa Responden juga telah membuat pengambilan tambahan bagi baki keluasan terlebih ambil bagi projek MRT ke atas Lot 273 sebanyak 0.3849 hektar tersebut melalui Warta Kerajaan Negeri No. 3878 bertarikh 10.10.2013. (Sesalinan Warta Kerajaan Negeri No 3878 bertarikh 10.10.2013 dilampirkan di sini sebagai “Ekshibit MH-4”). 14    [15] Semasa rujukan tanah ditetapkan untuk pengurusan kes di hadapan Timbalan Pendaftar (TP), Responden telah memaklumkan Mahkamah bahawa bagi membetulkan kesilapan di dalam pengendorsan Borang K, Responden telah membuat permohonan di bawah seksyen 380(1) Kanun Tanah Negara (KTN) kepada Pejabat Tanah Daerah Hulu Langat untuk rektifikasi endosmen di dalam Borang K untuk memberi gambaran sebenar unit keluasan tanah yakni 0.4964 hektar dan bukannya 0.4964 ekar. Berdasarkan permohonan Responden, pembetulan telah dibuat oleh Pejabat Tanah pada 17.11.2013. Carian pada hakmilik terkini telah menunjukkan keluasan tanah bagi pengambilan terdahulu telahpun ditukarkan kepada unit hektar. [16] Berdasarkan laporan-laporan juruukur dan afidavit oleh kedua-dua pihak Perayu dan Responden, pada peringkat awal kes ini, Perayu telah menghujahkan bahawa isu-isu yang harus diputuskan oleh Mahkamah ini adalah seperti berikut: (i) Adakah Responden telah memasuki tanah terlibat yang tidak diambil secara wajib? 15    (ii) Adakah terdapat kesilapan endosmen di Borang K mengenai 0.4964 ekar yang tertera di atasnya? (iii) Adakah pada di peringkat ini, Responden boleh memohon di bawah seksyen 380(1) Kanun Tanah Negara (KTN) kepada Pejabat Tanah Daerah Hulu Langat untuk merektifikasi endosmen di dalam Borang K bagi memberi gambaran sebenar unit keluasan tanah yakni 0.4964 hektar dan bukannya 0.4964 ekar? [17] Responden disebaliknya menghujahkan bahawa bantahan Perayu hendaklah ditolak atas dua (2) alasan berikut: i. bantahan yang dibuat oleh Perayu dalam Borang N adalah berdasarkan Warta Kerajaan Negeri Selangor No. 4229 bertarikh 15.11.2011 yakni pengambilan tanah yang dibuat ke atas tanah terlibat bagi tujuan MRT yang melibatkan keluasan 1.8659 hektar dan bukannya pengambilan tanah kedua untuk projek Lebuhraya Cheras-Kajang (Grand Saga). ii. pengukuran semula yang telah dibuat oleh Responden mendapati jumlah keluasan yang tidak dibayar pampasan adalah 16    cuma 0.3849 hektar dan bukannya 0.6804 hektar seperti yang didakwa oleh Perayu. Bagi keluasan sebanyak 0.3849 hektar tersebut, pengambilan tambahan telah dibuat mengenainya melalui Warta Kerajaan Negeri No. 3878 bertarikh 10.10.2013. [18] Apabila rujukan tanah ini ditetapkan untuk perbicaraan pada 23.1.2014 di hadapan Vernon Ong, H (YA ketika itu) dengan kehadiran pengapit-pengapit Kerajaan dan Swasta iaitu Puan Sawiyah dan Dr. Haji Iskandar, berdasarkan pertikaian yang ditimbulkan, YA berpandangan bahawa seorang Juruukur Bertauliah hendaklah dilantik untuk menyediakan laporan bagi membuat pengesahan samada wujud atau tidak pencerobohan keluasan tanah/ pengambilan tanah yang tidak dibayar bagi keluasan tanah seperti yang dituntut oleh Perayu. [19] Adalah menjadi arahan YA Hakim juga bahawa pihak-pihak hendaklah terikat dengan fakta yang akan didapati daripada Laporan Juruukur tersebut. 17    [20] Untuk tujuan tersebut dan atas persetujuan pihak-pihak, Encik Aziz bin Abdullah seorang juruukur bertauliah dari firma Juruukur Wawasan telah dilantik bagi menyediakan Laporan. Namun, apabila Laporan Encik Aziz bin Abdullah dikemukakan ke Mahkamah, peguam Perayu telah membuat bantahan atas Laporan tersebut atas alasan bahawa Encik Aziz telah menyediakan laporannya hanya berdasarkan kepada plotting atau pelan surihan dan bukannya berdasarkan ukuran sebenar di atas tapak. [21] Apabila perbicaraan rujukan tanah ini dipanggil untuk perbicaraan pada 21.8.2014, YA Vernon telah menyatakan berikut: “Laporan Jurukur tidak lengkap, arahkan Jurukur buat laporan yang lebih lanjut. Jurukur diarahkan hadir pada tarikh bicara akan datang untuk pihak-pihak soal balas.” [22] Encik Aziz kemudiannya telah pergi ke tanah tersebut dan membuat ukuran dan butiran menunjukkan keadaan di atas tanah tersebut. Laporan yang baru telah disediakan oleh Encik Aziz bin Abdullah telah dikemukakan kepada Mahkamah dan pihak-pihak. YA Hakim 18    juga mengarahkan Encik Aziz bin Abdullah untuk hadir pada tarikh perbicaraan untuk disoalbalas oleh pihak-pihak. [23] Di akhir laporan terbarunya, Encik Aziz bin Abdullah, telah membuat rumusan berikut: 3. RUMUSAN: Setelah menyemak dokumen-dokumen yang berkaitan, kami dapati terdapat pencerobohan ke atas tanah tersebut. Luas tanah yang diceroboh bergantung kepada unit luas bagi pampasan dibayar digunakan. Oleh kerana kami tidak dapat mengesahkan pembayaran di dalam unit hektar atau ekar, kami buat dua pengiraan bagi luas tanah yang diceroboh. Jika pampasan dibayar dalam unit hektar, luas tanah yang diceroboh ialah 0.3849 hektar. Jika pampasan dibayar dalam unit luas tanah yang diceroboh ialan 0.6804 hektar. [24] Rentetan daripada Laporan terbaru Encik Abdul Aziz dan pengesahan beliau mengenai terdapatnya pencerobohan ke atas tanah terlibat, Mahkamah telah menerima surat dari kamar Penasihat Undang-Undang Negeri Selangor (PUUNS) bertarikh 27.11.2014 yang menyatakan berikut: 19    “Adalah dimaklumkan bahawa setelah meneliti fakta-fakta dan mengadakan perbincangan, Kamar tiada apa-apa cadangan penyelesaian luar Mahkamah dapat diberikan oleh sebab yang berikut: a) Kes ini melibatkan pengambilan bagi tujuan projek Mass Rapid Transit (MRT). b) Pemohon telah membuat tuntutan untuk keluasan yang terlebih ambil. c) Berdasarkan kepada mesyuarat yang telah diadakan di antara pihak kamar, Jabatan Ketua Pengarah Tanah dan Galian Persekutuan (JKPTG) dan Mass Rapid Transit (MRT), didapati bahawa terdapat keluasan terlebih ambil oleh pihak MRT sebanyak 0.3849 hektar. d) MRT kemudiannya telah bersetuju untuk membuat pengambilan tambahan untuk keluasan terlebih ambil tersebut. e) Baki keluasan terlebih ambil bagi projek MRT ke atas Lot tersebut sebanyak 0.3849 hektar itu telah pun diwartakan untuk pengambilan tanah melalui Warta Kerajaan Negeri No. 3878. f) Kamar berpandangan bahawa isu terlebih ambil bagi projek MRT ini tidak lagi timbul kerana pengambilan bagi keluasan terlebih ambil tersebut telah dibuat. g) Lain-lain tuntutan yang dibangkitkan oleh Pemohon tidak melibatkan pengambilan bagi projek MRT tetapi untuk pengambilan yang 20    berbeza. Oleh itu, ianya tidak dapat dipertimbangkan kerana bukan di bawah kausa tindakan yang sama.”(penekanan Mahkamah) [25] Selepas daripada surat dari PUUNS tersebut, pada 28.12.2014, apabila rujukan tanah ditetapkan untuk perbicaraan di hadapan YA Pesuruhjaya Kehakiman Mohamad Zaini bin Mazlan, YA telah dimaklumkan bahawa Pemohon dan Responden bersetuju untuk melantik Juruukur bertauliah yang baru untuk menyediakan Laporan Terperinci mengenai isu pencerobohan tanah yang menjadi perihal perkara bagi rujukan tanah ini dan kos juruukur yang dilantik ini akan ditanggung oleh kedua-dua pihak Perayu dan Responden. Adalah juga dipersetujui bahawa Laporan Terperinci tersebut akan terikat sebagai pendapat fakta sama ada pencerobohan telah dilakukan atau tidak. Sekiranya ya, apakah keluasan sebenar pencerobohan tersebut? [26] YA Pesuruhjaya Kehakiman kemudiannya telah mengarahkan bahawa juruukur bertauliah yang baru dilantik untuk menyediakan Laporan Terperinci mengenai pencerobohan tersebut. Selepas daripada itu, Encik Teh Hock Heng, seorang juruukur bertauliah dari firma Juruukur Jitu Runding telah dilantik pada 13.1.2015. 21    [27] Encik Teh Hock Heng telah mengemukakan Laporan Terperincinya pada 30.1.2015 dan atas permohonan pihak-pihak, Encik Teh Hock Heng telah hadir ke Mahkamah ini pada 22.4.2015 untuk disoal balas atas Laporan Terperincinya. [28] Untuk memberi gambaran jelas Laporan Encik Teh Hock Heng, laporan terperinci beliau diperturunkan di bawah ini: “SURVEY FINDING OF LAND ACQUISITION ON LOT 273 GM 940, MUKIM CHERAS, DAERAH HULU LANGAT, SELANGOR DARUL EHSAN 15-68-08/2012 : Mohammad Fawzi Bin Mohd Yusof VS PTD Hulu Langat With reference to the above and further to the information provided by the Shah Alam high court, we are pleased to write in the following findings for your perusal and further action:- 1. The subject land as mentioned above is having 8.056 ac as shown in the land title. Base on the land search information dated 23/11/2012 (kindly refer to Appendix A), there are 3 land acquisitions which have been carried out and compensated to the land owner with the endorsement of Borang K by land office. 2. Purpose of the said land acquisition is for public projects as below:- i. JPS drainage widening of Sungai Cheras dated 1989 (PTD.UL.7/2/1-89 sj. 33) with the land area of 1.268 ac. 22    ii. Grand Saga Highway project dated 1998 (PTG.SEL 3/LLM/ 06/56 JLD 1) with the land area of 0.496 ac, and iii. MRT Project dated 2012 (PTG.SEL.3/JPM/06/136 SJ.52) with the land area of 4.611 ac. 3. However, there is another Borang K (PTG.SEL.3/ JPM/06/150) which registered on 14 May 2014 with the land area of 0.951 ac (Kindly refer to Appendix B). Therefore, it is advisable to carry out latest official land search to confirm if there is any further land acquisition as up to today. 4. In normal practice, re-survey of the lot is required whenever part of land is acquired for public development. Objective of this procedure is to issue a new land title for the balance land (title in continuity). In this case, a title survey was done and approved by survey department for the land acquisition of the Grand Saga Highway as shown in certified Plan no PA135210. (Kindly refer to Appendix C) 5. According to the said certified plan, the balance land of lot 273 is now become lot 45481. After thorough study, we believe the said re- survey has taken into consideration of land acquisition by both JPS and Grand Saga. In other words, the final area shown in PA 135210 for lot 45481 (5.686 ac) is the balance land area after the acquisition of JPS and Grand saga. With this finding, we found there is a shortfall in compensation during the JPS and grand saga’s acquisition. 6. However, before the title in continuity registered after the land acquisition by Grand Saga, the MRT has initiated the land acquisition process against this land. According to the MRT land acquisition plan no. LA/KVMRT/SEC8/SEL/DUL/BL/LLA/LP/06, the land 23    acquisition ROW alignment of MRT has covered the overall lot 45481 as shown in our precomputation plan no2089/2014/MTSA/PRE- 1(kindly refer to appendix D). In other words, the overall land of lot 273 is believed to be fully acquired via the land acquisition of JPS, Grand Saga and MRT at different time. 7. As in the tabulation shown in the precomputation plan, the total land acquisition area is only 7.326 ac over the original land area of 8.056 ac, where there is a total shortfall of 0.73 ac yet to be compensated IF the usage of the land acquisition is fully utilized. Thus, we believe the above findings is the root cause of the dispute. …” [29] Berdasarkan apa yang telah dipersetujui oleh kedua-dua pihak Perayu dan Responden, Laporan Terperinci yang disediakan oleh Encik Teh Hock Heng tersebut akan terikat sebagai pendapat fakta. Fakta-fakta dari Laporan tersebut adalah seperti berikut: i. Keluasan asal tanah terlibat adalah 8.056 ekar. ii. Keseluruhan atau kesemua tanah Lot 273, EMR 2371 yang kemudian diganti dengan GM 940 telah diambil dan digunakan. 24    iii. Bagi pengambilan tanah yang pertama bagi naik taraf sungai (bertarikh 1989 (PTD.UL.7/2/1-89 sj. 33), keluasan tanah yang diambil adalah 1.268 ekar (5130 meter persegi). iv. Bagi pengambilan tanah untuk projek Lebuhraya Grand Saga High (bertarikh 1998 (PTG.SEL 3/LLM/ 06/56 JLD 1) keluasan tanah yang diambil adalah 0.496 ekar. v. Jumlah keluasan pengambilan tanah pertama dan kedua atas tanah terlibat adalah 1.756 ekar menjadikan baki tanah terlibat adalah 6.30 ekar. vi. Namun selepas pengambilan bagi Grand Saga, sebelum pengeluaran hakmilik berterusan yang baru dikeluarkan,Jabatan Ukur telah mengeluarkan satu pelan ukuran yang disahkan certified plan) No. PA135210 yang menyatakan lebihan baki tanah adalah 5.686 ekar dan bukannya 6.30 ekar. vii. Bagi pengambilan tanah bagi projek MRT (bertarikh 2012 (PTG.SEL.3/JPM/06/136 SJ.52) dikatakan semua atau seluruh Lot 45481 telah diambil sebanyak 1.8659 hektar (4.611 ekar). Selepas pengambilan ketiga, baki tanah sepatutnya 1.68 ekar. 25    viii. Selepas bantahan ini difailkan, satu pengambilan melalui Borang K (PTG.SEL.3/JPM/06/150) telah dibuat pada 14.5.2014 dengan keluasan 0.951 ekar. ix. Selepas dikira dengan pengambilan terbaru pada 14.5.2014, baki keluasan yang tidak dibayar adalah 0.73 ekar dengan pengiraan berikut: 8.056 ekar – (1.268 ekar + 0.496 ekar + 4.611 ekar + 0.951 ekar = 7.326 ekar) = 0.73 ekar [30] Selepas pengukuran semula dibuat setelah pengambilan tanah bagi menaikkan taraf jalan dan Grand Saga dilaksanakan, tanah berbaki menurut PA 135210 untuk tanah terlibat (Lot 45481) adalah 5.686 ekar. Dengan yang demikian, juruukur (Encik Teh Hock Heng) mendapati bahawa terdapat kekurangan shortfall di dalam pembayaran pampasan di dalam pengambilan tanah bagi projek JPS dan Grand Saga. [31] Menurut Laporan itu lagi, sebelum penerusan hakmilik didaftarkan selepas pengambilan Grand Saga (pengambilan kedua), tanah terlibat sekali lagi diambil secara wajib bagi projek MRT. Di dalam 26    plan no. LA/KVMRT/SEC8/SEL/DUL/BL/LLA/LP/06, pengambilan ini melibatkan ROW alignment of MRT yang mengambil keseluruhan Lot 45481 seperti di Appendik D. Dalam erti kata yang lain, kesemua atau keseluruhan tanah terlibat seluas 3.2602 hektar atau 8.056 ekar Lot 273, EMR 2371 telah diambil secara wajib bagi tujuan JPS, Grand Saga and MRT pada masa yang berbeza. [32] Semasa disoalbalas oleh peguam Perayu, Encik Teh Hock Heng mengesahkan sekali lagi bahawa kesemua 8.056 ekar tanah terlibat telah diambil bagi ketiga-tiga tujuan pengambilan tanah. Beliau juga mengesahkan bahawa pampasan yang dibayar hanyalah untuk keluasan tanah sebanyak 6.38 ekar dan sememangnya terdapat kekurangan pampasan untuk 1.68 ekar tanah yang telah diambil. Menurut Encik Teh lagi, semasa ukuran dibuat sememangnya tanah terlibat meliputi keluasan 8.056 ekar tetapi berdasarkan Borang K yang dikeluarkan oleh Kerajaan Negeri Selangor bagi ketiga-tiga proses pengambilan tanah dan pada 14.5.2014 untuk pengambilan tambahan seluas 0.951 ekar, shortfall keluasan yang tidak dibayar pampasan adalah 0.73 ekar. Pampasan yang telah dibayar adalah cuma bagi 6.38 ekar sahaja. 27    [33] Peguam Perayu telah menghujahkan bahawa berdasarkan Laporan Terperinci Juruukur Encik Teh Hock Heng dan keterangannya di mahkamah tidak syak lagi kesemua tanah terlibat seluas 8.056 ekar (3.2602 hektar) telah diambil dan telah berlaku pencerobohan atas tanah Perayu. Pada masa bantahan dibuat, iaitu pada 14.5.2012 Perayu telah tidak dibayar pampasan bagi tanah beliau seluas 0.73 ekar + 0.951 ekar = 1.681 ekar yang telah diambil dan telahpun digunakan. [34] Pihak Responden masih menentang permohonan Perayu walaupun kedua-dua Laporan juruukur dan juruukur sendiri telah mengesahkan sememangnya terdapat kekurangan di dalam pembayaran pampasan bagi pengambilan tanah yang wajib ke atas tanah kepunyaan Perayu bagi keluasan 1.68 ekar dan selepas mengambilkira pengambilan tambahan seluas 0.951 ekar, shortfall kekurangannya adalah sebanyak 0.73 ekar. [35] Walaupun Responden mengakui bahawa keluasan tanah yang diambil bagi projek MRT adalah lebih daripada yang digazetkan, 28    tetapi Responden masih menegaskan bahawa gazet tambahan bagi kawasan yang terlebih ambil sebanyak 0.3849 hektar (0.951 ekar) telah dibuat mengenainya melalui Warta Kerajaan Negeri Selangor No. 3878 bertarikh 10.10.2013. [36] Adalah menjadi hujahan Responden juga bahawa bantahan yang dibuat oleh Perayu di dalam Borang Nnya adalah bagi pengambilan tanah yang diwartakan di dalam Warta Kerajaan Negeri Selangor No 4229 bertarikh 15.11.2011 bagi tujuan MRT dan keluasan tepat yang tercatit di dalam gazet tersebut adalah 1.8659 hektar. Keluasan seluas 1.8659 hektar inilah merupakan tanah yang dijadualkan (the scheduled land) yang telah diambil bagi tujuan tersebut. Responden telah menghujahkan seterusnya bahawa rujukan Perayu ke Mahkamah adalah berdasarkan bantahannya melalui Borang N. Borang N yang difailkan adalah bantahan yang terhad kepada pengambilan tanah untuk tujuan MRT sahaja dan jikapun ada kekurangan shortfall di dalam pembayaran pampasan kepada Perayu, shortfall tersebut adalah bagi dua pengambilan sebelum ini iaitu pengambilan tanah bagi JPS dan Grand Saga. Menurut Responden lagi, Mahkamah ini tidak boleh melihat di luar daripada 29    bantahan terhadap pengambilan tanah yang ketiga ini dan di luar daripada apa yang tertera di dalam Borang N Perayu. Responden menghujahkan lagi bahawa di bawah seksyen 37 Akta Pengambilan Tanah 1960 (Akta), bantahan Perayu hanya terhad kepada tujuan MRT sepertimana yang tertera di Warta Kerajaan Negeri Selangor No. 4229 bertarikh 15.11.2011, keluasan tanah yang diambil telah dinyatakan dengan nyata adalah 1.8659 hektar. [37] Untuk hujahannya tersebut, Responden telah bergantung kepada seksyen 37(1) Akta yang memperuntukkan berikut: “(1) Any person interested in any scheduled land who, pursuant to any notice under section 10 or 11, has made a claim to the Land Administrator in due time and who has not accepted the Land Administrator’s award thereon, or has accepted payment of the amount of such award under protest as to the sufficiency thereof, may, subject to this section, make objection to – (a) the measurement of the land; (b) the amount of the compensation; (c) the persons to whom it is payable; (d) the apportionment of the compensation.” 30    [38] Menurut Responden lagi, seksyen 37(1) Akta membolehkan mana- mana orang yang berkepentingan membuat bantahan atas pengambilan tanah bagi perkara yang termasuk keluasan tetapi keluasan yang dibantah hendaklah berdasarkan Warta yang telah dikeluarkan dan bagi kes ini ia hendaklah terhad kepada pengambilan bagi tujuan MRT sahaja. Dalam hal ini, tuntutan Perayu tidak boleh dilayan Mahkamah ini. Dapatan Mahkamah [39] Mahkamah ini ingin menyatakan bahawa di dalam kes ini persoalannya bukanlah berkaitan ketidakpuasan hati atas penilaian atau jumlah pampasan (amount of the compensation) menurut seksyen 40A(2) Akta tetapi apa yang perlu diputuskan oleh Mahkamah ini adalah persoalan undang-undang samada wujud atau tidak pencerobohan atau kekurangan pampasan atas keluasan yang telah diambil. Justeru, pandangan kedua pengapit di bawah seksyen 40C Akta adalah tidak berkaitan. 31    [38] Fakta yang jelas lagi nyata serta disahkan sendiri oleh kedua-dua juruukur bebas yang dilantik Mahkamah bahawa keseluruhan atau kesemua tanah terlibat seluas 3.2602 hektar atau 8.056 ekar telahpun diambil wajib di dalam ketiga-tiga pengambilan tanah. Juruukur Encik Aziz telah mengesahkan bahawa sememangnya terdapat pencerobohan yang mana keluasan 0.6804 hektar telah digunakan tetapi pampasan tidak dibayar atas penggunaannya. Encik Teh Heng Hock yang telah membuat siasatan terperinci ke atas tanah terlibat secara fizikal dan warta-warta pengambilan tanah yang dibuat ke atasnya telah mengesahkan bahawa sememangnya terdapat kekurangan bayaran pampasan ke atas pengambilan kesemua tanah terlibat iaitu kekurangan pampasan untuk tanah seluas 1.68 ekar. Di dalam kes ini, pihak Responden sememangnya mengakui bahawa memang terdapat kekurangan apabila pengukuran semula dibuat di mana di dalam afidavit Mohd Hafiz mengakui bahawa apabila pengukuran semula dibuat pada tahun 2013 selepas Perayu membuat bantahan ini, dan daripada pengukuran semula telah didapati bahawa wujud kekurangan pampasan bagi tanah seluas 0.3849 hektar dan bukannya 0.6804 hektar seperti yang didakwa oleh Perayu. Oleh kerana itu, satu gazet tambahan telah 32    dikeluarkan pada 10.10.2013 bagi pengambilan tambahan bagi projek MRT bagi keluasan 0.3849 hektar tersebut. [39] Bagi Mahkamah ini, gazet tambahan ini yang dibuat oleh Responden dalam erti kata lain telah mengesahkan sememangnya Perayu telah dibayar pampasan kurang daripada yang baki keseluruhan/kesemua tanah yang telah diambil bagi projek MRT. Apa yang berbeza adalah ukuran keluasannya. Responden menegaskan kekurangan adalah untuk 0.3849 hektar tetapi Perayu mendakwa bahawa kekurangan pampasan adalah bagi tanah seluas 0.6804 hektar. [40] Di sini Mahkamah ini ingin mengulangi bahawa apabila arahan untuk kedua-dua laporan dibuat, pihak-pihak Perayu dan Responden telahpun bersetuju untuk terikat kepada penemuan fakta yang akan timbul dari laporan yang disediakan oleh juruukur bebas yang dilantik. Encik Teh Heng Hock yang telah membuat pengukuran fizikal ke atas tanah terlibat bersandarkan warta-warta pengambilan tanah yang digazetkan dan pelan-pelan pengambilan tanah dan beliau telah mengesahkan adanya shortfall kekurangan pampasan sebanyak 1.68 ekar sebelum warta tambahan digazetkan dan 33    shortfall atau kekurangan 0.73 ekar ini selepas pengambilan tambahan dibuat pada tahun 2014. Begitu juga Encik Aziz di dalam laporannya telah mengesahkan wujudnya pencerobohan dan pampasan yang telah tidak dibayar bagi pengambilan tanah keseluruhan atau kesemua tanah terlibat. [41] Responden, walaupun mengakui fakta ini masih lagi membantah tuntutan Perayu bersandarkan hujahan bahawa bantahan Perayu di dalam Borang N adalah bagi projek MRT iaitu pengambilan ketiga dan shortfall ini berlaku pada masa pengambilan pertama dan kedua, makanya pihak pembayarnya adalah berbeza. MRT kononnya tidak boleh diminta membayar sesuatu yang bukan disebabkan oleh pengambilan tanah yang dibuat bukan bagi tujuannya dan menurut Responden lagi, seksyen 37(1) Akta, tidak membolehkan Mahkamah ini melihat di luar pengambilan tanah ketiga. [42] Mahkamah ini berpandangan bahawa hujahan Responden ini adalah sesuatu yang tidak dapat diterima. Pertamanya, di dalam Borang N Perayu dengan jelas bahawa bantahannya adalah atas keluasan yang diambil yakni “measurement”. Beliau menyatakan tanah yang 34    telah diambil adalah lebih besar daripada apa yang dibayar kepadanya “Tanah diambil lebih besar. Perbezaan luas tanah diambil 0.6805 hektar”. Malahan prosiding ini yang telah berlarutan dari tahun 2012 sehingga tahun 2015 adalah atas isu pencerobohan tanah dan keluasan ukuran tanah yang telah diambil tetapi telah dibayar pampasan. Responden sememangnya sedar bahawa keluasan atau ukuran adalah satu-satu isu di dalam bantahan ini, sehinggakan Responden telah mengarahkan pengukuran semula tanah dibuat pada tahun 2013. Jurukur-juruukur bertauliah bebas telahpun dilantik dan ditugaskan untuk menentukan keluasan dan ukuran sebenar yang dicerobohi. Adalah tidak benar sekiranya Responden mengatakan di sini tidak ada isu keluasan yang membabitkan ukuran tanah seperti yang diperuntukkan di bawah seksyen 37(1) Akta yakni “measurement”. [43] Tambahan pada itu, Responden yang menyedari isu keluasan dan ukuran tanah yang menjadi pertikaian, telah cuba mengambil langkah untuk membuat pindaan bagi merektifikasi Borang Knya. Di dalam hal ini, Responden sememangnya sedar dan tahu ukuran keluasan tanah adalah isu yang perlu diputuskan di dalam kes ini. Maka, 35    Responden tidak boleh mengatakan bahawa tuntutan Perayu adalah di luar bidangkuasa Mahkamah menurut seksyen 37(1) Akta. Justeru, Responden semestinya gagal di dalam alasan ini. [44] Di samping itu, Reponden tidak boleh mengatakan bahawa memandangkan kesilapan ukuran keluasan itu berlaku pada masa pengambilan pertama dan kedua, makanya MRT tidak boleh dipaksa membayar atas kesilapan tersebut. Mahkamah berpandangan ini adalah satu alasan yang remeh semata-mata dan tidak berasas langsung. Mahkamah ini berkata sedemikian kerana Encik Teh Hock Heng telah mengesahkan bahawa ukuran yang tersilap adalah ukuran keluasan yang dibuat selepas pengambilan JPS dan Grand Saga. Ukuran yang tersilap bukanlah keluasan yang telah diambil bagi kedua-dua projek tersebut tetapi apa yang silap adalah pengukuran semula keluasan tanah selepas kedua-dua pengambilan dan baki keluasan daripada kedua-dua pengambilan. Apa yang jelas jumlah keluasan tanah terlibat bagi projek JPS adalah 1.268 ekar dan jumlah yang diambil bagi Grand Saga adalah 0.496 ekar. Setelah tolakan bagi kedua-dua pengambilan tanah terlibat berbaki sebanyak 6.30 ekar. Kesemua tanah yang berbaki ini telah 36    digunakan oleh MRT bagi projek tersebut tetapi warta pengambilan yang dikeluarkan oleh Kerajaan Negeri Selangor hanya menyatakan sebanyak 1.865 hektar (4.6 hektar) sedangkan tanah berbaki adalah seluas 6.30 ekar. Maka, fakta yang tidak boleh Responden sangkal adalah MRT telah menggunakan kesemua bahagian yang berbaki tersebut. Responden tidak boleh mengatakan bahawa tanah berbaki itu hanya 1.865 hektar sahaja sedangkan bukti yang nyata semua bahagian tanah berbaki telah dimasuki oleh MRT dan telahpun digunakan. Kesemua juruukur bebas telah mengesahkan bahawa keseluruhan atau kesemua tanah dipegang di bawah EMR 2371 telahpun diambil di dalam ketiga-tiga pengambilan wajib tanah bagi ketiga-tiga projek dan malahan bagi pengambilan tanah ketiga projek MRT, Jabatan Penilaian dan Perkhidmatan Harta (JPPH) di dalam Lapuran Penilaiannya (Kandungan B), telah mendiskripsikan pengambilan tanah bagi Lot 273 (45481), Hakmilik GM 940 dan telah mengesahkan keseluruhan tanah terkandung di dalam GM 940 telah diambil bagi projek MRT. JPPH di perenggan 8.3 menyatakan berikut: “8.3 Bahagian terlibat 37    Pengambilan tanah ini melibatkan keseluruhan lot subjek. Keluasan tanah yang dijadualkan untuk pengambilan ialah seluas 1.8659 hektar (hectare) sepertimana yang telah diwartakan bawah Seksyen 8 Nombor 4229 bertarikh 15 November 2011. Keadaan rupabumi bahagian terlibat adalah rata dan tidak berturap. Keseluruhan lot subjek masih tanah merah.” (penekanan Mahkamah) Justeru, alasan Responden di dalam hal ini juga tidak boleh dipertahankan. [45] Berdasarkan alasan-alasan di atas, tuntutan Perayu adalah dibenarkan. Memandangkan nilaian tanah pada RM 650.00 semeter tidak dipertikaikan, maka, Perayu hendaklah dibayar bagi keluasan yang tidak dibayar seperti berikut:            SAMADA i. sekiranya Perayu belum lagi dibayar pampasan bagi pengambilan tanah tambahan bagi keluasan 0.4849 hektar (0.951 ekar) menurut Warta Kerajaan Negeri Selangor No. 3878 bertarikh 10.10.2013, maka pampasan hendaklah dibayar kepada Perayu bagi kekurangan pampasan untuk 38    keluasan 0.6804 hektar (1.681 ekar) pada nilai RM650.00 per meter persegi. ATAU ii. sekiranya pampasan bagi pengambilan tanah tambahan bagi keluasan 0.4849 hektar (0.951 ekar) menurut Warta Kerajaan Negeri Selangor No. 3878 bertarikh 10.10.2013, telahpun dibayar kepada Perayu, maka pampasan hendaklah dibayar kepada Perayu bagi kekurangan pampasan untuk keluasan 0.1955 hektar (0.73 ekar) pada nilai RM 650.00 per meter persegi. [46] Kos pengapit adalah dibayar oleh Perayu, manakala kos juruukur adalah ditanggung bersama oleh Perayu dan Responden. 39                                                                t.t.           .....................................................      (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 4 haribulan Ogos, 2015 Peguam Perayu - Tetuan Rahmah & Co Puan Rahmah Peguam Responden - Penasihat Undang-Undang Negeri Selangor Puan Etty Eliany Tesno

Tika 2.6.0

MT1-28-22-2006

PEMOHON 1. LIAN MONG YEE @ LIAN MUNG YEE (No. K/P: 521114-10-5593) 2. WESTARIO SDN BHD (No. K/P: 608485-P) RESPONDEN UNIVER CORPORATION SDN BHDLAIN-LAINOCBC BANK (MALAYSIA) BERHAD

27/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a70cd9d2-8074-4f35-8047-6c92093a3ba1&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PENGGULUNGAN SYARIKAT NO: MT1-28-22-2006 ANTARA OCBC BANK (MALAYSIA) BERHAD … PEMPETISYEN DAN UNIVER CORPORATION SDN BHD (No. Syarikat : 198431-D) … RESPONDEN DAN 1. LIAN MONG YEE @ LIAN MUNG YEE (No K/P : 521114-10-5593) 2. WESTARIO SDN BHD (No. Syarikat : 608485-P) ... PEMOHON- PEMOHON ALASAN PENGHAKIMAN (Kandungan 35) [1] Pemohon-Pemohon (i. Lian Mong Yee ii. Westario Sdn Bhd) telah memfailkan Kandungan 35 ini untuk mendapatkan antara 2 lain perintah-perintah berikut: “(a) Kebenaran diberi kepada Pemohon-Pemohon yang disebut di atas untuk mencelah dalam Petisyen ini dan menjadi satu pihak di sini; (b) (i) Apabila kebenaran diberi, Perintah Mahkamah bertarikh 07/01/2009 yang melantik Pang Fee Yoon (Pang) sebagai Likuidator diketepikan. (ii) Alternatifnya, kebenaran diberikan untuk menyingkir Pang Fee Yoon sebagai Likuidator. (c) Bahawa Pegawai Penerima dilantik sebagai Likuidator/Pelikuidasi untuk Syarikat tersebut.” (Penekanan oleh Mahkamah ini) [2] Pemohon-Pemohon pada dasarnya memohon supaya perintah Mahkamah yang melantik Pang Fee Yoon (Pang) sebagai Pelikuidasi Responden diketepikan atau secara alternatif Pang disingkirkan daripada meneruskan tugasnya sebagai 3 Pelikudasi Responden dan digantikan dengan Pegawai Penerima Malaysia. [3] Pemohon Pertama adalah pengarah bagi Pemohon Kedua dan selepas daripada ini kedua-duanya akan dirujuk sebagai Pemohon-Pemohon. Latarbelakang ringkas kes [4] Responden (Univer Corporation Sdn Bhd) telah digulungkan pada 24.5.2006 di atas petisyen penggulungan yang dikemukakan oleh Pempetisyen {OCBC Bank (Malaysia) Berhad} menurut Seksyen 218(2)(a) Akta Syarikat 1965 (Akta) kerana kegagalan Responden untuk membayar jumlah penghakiman sebanyak RM35,936,282.90 setakat 21.10.2005. [5] Apabila Responden digulungkan, Mahkamah pada 24.5.2006 juga telah melantik Pegawai Penerima Malaysia sebagai Pelikuidasi bagi menguruskan dan mentadbir hal-ehwal Responden. 4 [6] Kemudian daripada itu, melalui satu Notis Usul yang difailkan oleh YCS Corporation Berhad pada 3.9.2008, Mahkamah pada 7.1.2009 telah melantik Pang sebagai Pelikuidasi Responden bagi menggantikan Pegawai Penerima Malaysia. [7] YCS Corporation Berhad (YCS) adalah merupakan pemegang 100% saham Responden. [8] Setelah lebih kurang enam (6) tahun Pang menjalankan tugasnya sebagai Pelikuidasi Responden dan setelah enam (6) tahun perintah bertarikh 7.1.2009 dikeluarkan oleh Mahkamah, Pemohon-Pemohon pada 17.12.2014 telah memfailkan permohonan di Kandungan 20 untuk mencelah di dalam petisyen/prosiding likuidasi Responden ini (di dalam Kandungan 35 dinyatakan mencelah petisyen) dan jika kebenaran diberikan kepada mereka, Pemohon-Pemohon memohon supaya Mahkamah ini mengenepikan perintah 7.1.2009 dan seterusnya menyingkirkan Pang daripada terus bertindak sebagai Pelikuidasi Responden. 5 [9] Perlu dinyatakan disini bahawa Petisyen Penggulungan yang difailkan oleh OCBC Bank (Malaysia) Berhad (OCBC Bank) telahpun berakhir dengan satu perintah menggulungkan Responden pada 24.5.2006. Apa yang tinggal lagi adalah proses pentadbiran likuidasi Responden yang dijalankan oleh Pelikuidasi. [10] Perlu juga dinyatakan di sini bahawa apabila Pemohon-Pemohon memfailkan Kandungan 20, Pemohon-Pemohon telah tersilap dengan permohonan mereka dimana di dalam Kandungan 20 telah menamakan YCS sebagai Responden dan bukannya Univer Corporation Sdn Bhd. Permohonan Pemohon-Pemohon untuk meminda nama Responden yang sebenarnya yakni OCBC Bank telah dibenarkan. Justeru itu, Kandungan 35 telah difailkan pada 30.6.2015. [11] Di dalam memohon untuk penyingkiran Pang sebagai Pelikuidasi Responden, Pemohon-Pemohon telah membangkitkan alasan-alasan berikut: 6 (i) Perlantikan Pang adalah tidak sah dan salah di sisi undang-undang; (ii) Pang telah gagal melaksanakan tugas statutori mandatori yang tertanggung ke atasnya; (iii) Pang telah menjalankan tugasnya bertentangan dengan tugas-tugas dan kepentingan Responden; dan (iv) Pang telah nenyalahguna kuasanya. [12] Permohonan Pemohon-Pemohon ini telah dibantah dengan kerasnya oleh Pelikuidasi. Selain daripada mendakwa permohonan Pemohon-Pemohon adalah tidak berasas dan tidak mempunyai merit, Pelikuidasi juga telah membangkitkan isu-isu awalan bahawa permohonan Pemohon-Pemohon adalah di luar aturan dan sebenarnya Pemohon-Pemohon tidak mempunyai locus standi atau kapasiti undang-undang untuk membuat permohonan ini. 7 Isu Awalan – Locus standi Pemohon-Pemohon [13] Pelikuidasi telah membangkitkan bahawa Pemohon-Pemohon bukanlah pemiutang, ataupun pemegang saham mahupun penyumbang kepada Responden tetapi adalah merupakan seorang penyibuk (busybody). [14] Menurut Pelikuidasi lagi, Pemohon-Pemohon yang hanya merupakan penyumbang atau ahli kepada YCS tidak mempunyai kaitan lansung dengan Responden. Seterusnya menurut Pelikuidasi lagi, sebagai penyibuk, Pemohon-Pemohon tidak mempunyai hak untuk mencelah prosiding ini apatah lagi untuk menyingkirkan Pang sebagai Pelikuidasi. Lagipun apa yang dimohon Pemohon-Pemohon adalah untuk mencelah Petisyen Penggulungan yang telahpun berakhir dengan Perintah Penggulungan dikeluarkan. Apa yang tinggal adalah proses likuidasi. [15] Pemohon-Pemohon di dalam percubaan mereka untuk 8 mendapatkan kebenaran Mahkamah ini untuk mencelah prosiding penggulungan ini telah menghujahkan bahawa mereka adalah pihak yang mempunyai kepentingan di dalam aset Responden yang mana proses likuidasi Responden masih berjalan dan belum lagi selesai dan muktamad. [16] Menurut Pemohon-Pemohon lagi kepentingan mereka di dalam aset Responden adalah bersandarkan perjanjian jual beli yang dimasukki oleh Responden dan satu pihak yang bernama Perumahan Chianion Sdn Bhd dengan Pemohon-Pemohon bertarikh 25/03/1999 (STT-SPA). Di dalam STT-SPA ini, Responden adalah tuanpunya sebidang tanah (tanah tersebut) yang telah dibangunkan sebagai projek perbangunan dan Pemohon-pemohon pula adalah pembeli parsel-parsel ruang perniagaan di Pacific Mall Johor Bharu yang telah dibangunkan di atas tanah tersebut. [17] Apabila Pang telah dilantik sebagai Pelikuidasi Responden, atas nama syarikat di dalam likuidasi, Pang telah memfailkan 9 satu tindakan writ di Mahkamah Tinggi Kuala Kumpur (Tindakan Sivil No: S-22-314-2009) terhadap Pemohon-Pemohon untuk berapa relif deklarasi yang antara lain: (i) Deklarasi bahawa Perjanjian STT-SPA tersebut adalah terbatal dan tidak sah dan diketepikan; (ii) Defendan Pertama secara sendiri atau ejen atau bagaimana cara diperintahkan dengan serta-merta memulangkan kembali Suratikatan Hakmilik Asal tersebut dan Memorandum Pindaan tersebut kepada Plaintif Pertama; (iii) Defendan Kedua secara sendiri atau ejen atau bagaimana cara diperintahkan dengan serta-merta memulangkan kembali Suratikatan Hakmilik Asal tersebut dan Memorandum Pindaan tersebut kepada Plaintif Pertama; (iv) Defendan Pertama secara sendiri atau ejen atau bagaimana cara diperintahkan dengan serta-merta untuk menarik balik Kaveat tersebut; (v) Defendan Kedua secara sendiri atau ejen atau bagaimana 10 cara diperintahkan dengan serta-merta untuk menarik balik mana-mana kaveat yang akan dan/atau telah didaftar, sekiranya perlu; dan (vi) Gantirugi yang akan ditaksirkan oleh Mahkamah Yang Mulia ini akibat Defendan-Defendan gagal dan/atau tidak memulangkan kembali surat asal hakmilik tanah tersebut dan Memorandum Pindaan tersebut semenjak bulan Julai 2004 sehingga tarikh pemulangan dan penerimaan oleh Plaintif Pertama. [18] Pemohon-Pemohon telah menentang tuntutan tersebut dan telah juga memfailkan tuntutan balas seperti berikut: (i) bahawa menurut kepada kuasa Likuidator di bawah Seksyen 236(2) dalam Akta Syarikat, Plaintif Pertama dan Plaintif Kedua melalui Likuidator mereka, Pang Fee Yoon dan/atau melalui Pengarah-Pengarah dan/atau ejen-ejen mereka menandatangani dan menyerahkan dengan serta-merta semua dokumen-dokumen yang diperlukan (termasuk, jika perlu, satu Memorandum Pindahmilik (Borang 14A) dan Borang Proforma PDS 15 yang baru) untuk melaksanakan pindahmilik dan pendaftaran Memorandum Pindahmilik 11 (Borang 14A) dan Borang PDS 15 tersebut dalam nama penama Defendan Pertama, Westario Sdn Bhd iaitu Defendan Kedua di sini; (ii) Satu tolakan ke atas semua wang-wang yang dinyatakan di bawah ini terhadap Plaintif-Plaintif atau balasan seperti yang dinyatakan dalam Memorandum Pindahmilik dan Borang Proforma PDS15 bertarikh 30/06/1996 tersebut:- (a) Satu jumlah sebanyak RM100,000.00 sebulan dari 01/10/1999 sehingga ke tarikh penyerahan milikan kosong ke atas Projek tersebut seperti yang dinyatakan di paragra 26(a) dalam Tuntutan Balas di atas; (b) Satu jumlah sebanyak RM7 juta seperti yang dinyatakan di paragraph 26(c) dalam Tuntutan Balas di atas; (iii) Faedah pada kadar 8% setahun dari tari tarikh Writ Saman sehingga ke tarikh pembayaran yang penuh; dan (iv) Faedah pada kadar 9.8% setahun ke atas jumlah-jumlah yang 12 dinyatakan di (ii) (a) & (b) di atas dari 01/10/1999 sehingga tarikh penyerahan milikan kosong. [19] Selepas satu perbicaraan penuh, YA Hakim Mahkamah Tinggi Kuala Lumpur telah menolak tuntutan Pelikuidasi dan Perumahan Chianion dan telah juga menolak tuntutan balas Pemohon-Pemohon. [20] Berdasarkan STT-SPA bertarikh 25/03/1999 inilah, Pemohon-Pemohon telah mengatakan bahawa mereka adalah pihak-pihak yang berkepentingan terhadap aset-aset Responden “person interested in the assets of the Respondent”’ dan justeru itu berhak untuk mencelah proses likuidasi Responden dan mendapatkan perintah untuk mengenepikan perintah mahkamah bertarikh 7.1.2009 serta seterusnya memohon penyingkiran Pang sebagai Pelikuidasi Responden sekiranya mereka dapat membuktikan adanya kausa untuk penyingkiran Pang (on cause shown be removed) oleh Mahkamah. [21] Untuk menyokong pengataan ini, peguam 13 Pemohon-Pemohon telah bersandarkan kepada kes Re Keypak Homecare Ltd [1987] 3 BCC 558. Di dalam kes Re Keypak Homecare Ltd telah diputuskan antara lain seperti berikut: “Held : … the words of the statute were very wide and from authority the rule appeared to be that in order to effect the removal of a liquidator the court needed only to be satisfied that that was for the general advantage of those interested in the assets of the company, notwithstanding that no personal misconduct or unfitness could be shown on the part of the liquidator. It might be appropriate to remove a liquidator even though nothing could be said against him either personally or in his conduct of the particular liquidation.” [22] Peguam Pemohon-Pemohon juga telah merujuk Mahkamah ini kepada kes-kes Re Adam Eyton, Ltd [1887] 36 Ch.D 36 dan Chua Boon Chia v J.M. McCormack & Ors [1979] 2 MLJ 156. [23] Di dalam hal ini, Mahkamah ini perlu menyentuh serba ringkas berkenaan kedudukan undang-undang di dalam penyingkiran Pelikuidasi. Undang-undang adalah jelas dan mantap bahawa bidangkuasa Mahkamah di dalam menyingkirkan Pelikuidasi telah diperuntukkan di bawah 14 Seksyen 232(1) Akta. Seksyen 232(1) Akta memperuntukkan dengan jelas seperti berikut: “232 General provisions as to liquidators (1) A liquidator appointed by the Court may resign or on cause shown be removed by the Court.” [24] Di dalam kes Ng Yok Gee & Nor v CTI Leather Sdn Bhd (Metro Brillant Sdn Bhd & Ors, intervener) [2006] 7 MLJ 28, Ramly Ali H (YA ketika itu) telah menjelaskan prinsip-prinsip undang-undang berkenaan penyingkiran pelikuidasi. Di perenggan [48], [49] dan [50] penghakimannya YA telah berkata berikut: “[48] The principles of law is that a liquidator may be removed if it is in the interest of all those who are interested in the company being liquidated. [49] However, in the present case, the applicant has not shown that all the contributories and creditors support his application. 15 [50] For convenience, the court, set out below the relevant legal principles applicable to an application to remove a liquidator: (a) A liquidator appointed by the court can only be removed by the court ‘on cause shown’- s 232 of Companies Act 1965. (b) The court does not have an unfettered discretion as ‘cause must be shown’. The position is not the same as it is when a liquidator is first appointed and the court may choose between two or more competing candidates. (c) The normal ground for removal is that the liquidator has a personal unfitness, had failed to act impartially or is in a position where his duty and interest are in conflict. See: (i) In re Sir John Moore Gold Mining (1879) 12 Ch Div 325, p 331; (ii) Advance Housing v Newcastle Classic Developments (1994) 12 ACLC 701; and (iii) Commonwealth of Australia v O’Reilly (1984) 52 16 ALR 031.” [25] Begitu juda kes kes Abric Project Management & Anor v Palmshine Plaza Sdn Bhd & Anor [2007] 5 MLJ 685, di mana penyumbang dan bekas pengarah Responden Palmshine Plaza Sdn Bhd (Ong Say Lam) telah memfailkan satu permohonan menurut Seksyen 232(1) Akta untuk menyingkirkan Pelikuidasi (Lim Tian Huat) dan menggantikannya dengan Pegawai Penerima Malaysia, Ramly Ali H telah memutuskan berikut: “A liquidator may be removed if it can be shown that the removal would be advantageous to those interested in the assets of the company. Here however, there were no more assets left in the liquidation and therefore none could be imperilled by the continuance in office by the liquidator. Accordingly, fair play to the liquidator ought to be regarded and the liquidator be allowed to finalise the tail end of the liquidation (see para 50).” [26] Di dalam hal permohonan Pemohon-Pemohon ini, sebelum 17 Mahkamah ini menentukan merit-merit permohonan Pemohon-Pemohon, perkara pertama yang Mahkamah perlu tentukan adalah; adakah Pemohon-Pemohon adalah pihak yang layak dan berhak untuk mendapatkan relif-relif yang dipohon? [27] Pemohon-Pemohon di dalam Kandungan 35nya ataupun Kandungan 20 telah tidak menyatakan di bawah peruntukan manakah mereka datang ke Mahkamah ini memohon relif-relif yang dinyatakan awal tadi. Untuk itu, Mahkamah perlu melihat semula pemohonan Kandungan 35 yang difailkan oleh Pemohon-Pemohon. Untuk lebih jelas lagi, alasan-alasan Pemohon memfailkan Kandungan 35 diperturunkan di bawah ini: (i) Perlantikan Pang Fee Yoon tersebut adalah salah di sisi undang-undang; (ii) Mahkamah Tinggi dalam Guaman Sivil No. S-22-314-2009 telah mengumumkan dalam suatu Penghakiman bahawa Pang Fee Yoon tersebut tidak mempunyai locus standi untuk 18 mewakili Syarikat tersebut; (iii) Tiada Rayuan oleh Likuidator tersebut terhadap Penghakiman itu; dan (iv) Likuidator tersebut telah gagal untuk melepaskan kewajipan statutorynya di bawah Seksyen 235 dan/atau Seksyen 250 dalam Akta Syarikat yang dibaca bersama-sama dengan Kaedah 236 dalam Kaedah-Kaedah Penggulungan Syarikat. [28] Daripada Kandungan 35/Kandungan 20, permohonan yang dibuat oleh Pemohon-Pemohon bukanlah dibuat menurut Seksyen 232(1) Akta ataupun di bawah peruntukan- peruntukan undang-undang yang telah dinyatakan oleh Pemohon-Pemohon di dalam hujahan bertulisnya mereka seperti peruntukan seksyen-seksyen 227(2) Akta, 229(2) Akta, 296(6) Akta dan beberapa peruntukan undang-undang lain. [29] Apa yang nyata dan jelas, kalau dilihat daripada isi Kandungan 35, Pemohon-Pemohon pada dasarnya ingin mencelah petisyen terhadap Responden oleh OCBC Bank menurut Aturan 15 Kaedah 6(2)(b)(i) & (ii) KKM 2012 dengan 19 hanya bersandarkan kepada peruntukan Seksyen 235 dan/atau Seksyen 250 dalam Akta Syarikat yang dibaca bersama-sama dengan Kaedah 236 dalam Kaedah-Kaedah Penggulungan Syarikat. [30] Mahkamah ini perlu menyatakan di sini bahawa adalah jelas, nyata dan tidak dipertikaikan bahawa Pemohon-pemohon bukanlah pemiutang ataupun penyumbang mahupun pemegang saham kepada Responden. Di dalam afidavit-afidavit menyokong permohonan Pemohon-Pemohon, Pemohon-Pemohon tidak langsung menyatakan apakah kapasiti Pemohon-Pemohon di dalam memfailkan permohonan mereka. Penggantungan kerberhakkan mereka di dalam memfailkan permohonan adalah STT-SPA yang telah dimasukki mereka atas pembelian parsel-parsel ruang perniagaan di Pacific Mall Johor Bahru. [31] Pemohon-Pemohon melalui surat peguamcara mereka Tetuan Lee, Ling & Partners) bertarikh 2.4.2015 (Eksibit “LMY-2”, Kandungan 36) kepada peguam Pelikuidasi 20 (Messrs. Andrew Davis & Co) jelas telah menyatakan bahawa memandangkan Mahkamah Persekutuan telah mengesahkan bahawa STT-SPA tersebut sah dan berkuatkuasa, Pemohon-Pemohon menuntut di perenggan 2 surat ini seperti yang berikut: (i) As all the Conditions Precedent, except (iv), has been fulfilled by your client, our client hereby waived the benefits of Condition Precedent (iv) including the right to be indemnified by the Company against any claim by the Project Consultant/Contractor under Clause 8.2.1 of SPA to complete the said SPA; and (ii) In this respect, the Company is hereby released of its obligation in the Condition Precedent (iv) under Clause 8.2.1. (iii) We hereby give you Seven (7) days Notice to effect the transfer and registration of the Memorandum of Transfer Form 14A (“Mot 14A”) and delivery of vacant possession of the said Property to our client, failing which we shall take appropriate action deem fit. 21 [32] Persoalannya adakah ini kedudukan ini memberikan hak kepada Pemohon-Pemohon untuk mencelah proses likuidasi Responden yang sedang berjalan dan memohon perintah yang dikeluarkan enam tahun dahulu diketepikan dan Pelikuidasi disingkirkan. [33] Untuk ini, Mahkamah perlu juga merujuk undang-undang berkenaan pencelahan (intervention). Undang-undang berkenaan pencelahan (intervention) adalah juga jelas dan mantap. Kebenaran bagi membenarkan mana-mana pihak untuk untuk mencelah prosiding adalah suatu bidang kuasa budi bicara mahkamah, Pada amnya, Mahkamah akan membenarkan pemohon untuk mencelah atau dicantum sebagai pihak sekiranya pemohon dapat membuktikan bahawa pemohon mempunyai kepentingan secara terus dan langsung dengan tindakan (an interest directly related to the action). Namun, otoriti undang-undang telah menunjukkan (established) bahawa kepentingan pemohon adalah satu kepentingan undang-undang (the interest the applicant must have or possess means a legal interest) dan bukannya 22 kepentingan komersial (not a mere commercial interest). [34] Kerr LJ di dalam kes Sanders Lead Co Inc v Entores Metal Brokers Ltd [1984] 1 WLR 452, di dalam memberikan pandangannya berkaitana maksud kepentingan bagi maksud pencelahan di muka surat 460 telah berkata: “In my view, the rule requires some interest in the would-be intervener which is in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action, is not enough.” [35] Prinsip undang-undang yang diutarakan di dalam kes Sanders Lead ini telah diterimapakai di dalam kes-kes di Malaysia. (Sila lihat: i. Tohtonku Sdn Bhd v Superace M) Sdn Bhd [1989] 2 MLJ 298 ii. Lee Meow Lim v Lee Meow Nyin (t/a Cheong Fatt Merchant) iii. Nabisco Brands (M) Sdn Bhd, Intervener [1990] 3 MLJ 123). [36] Di dalam kes Tohtonku Sdn Bhd v Superace (M) Sdn Bhd (1992) 2 MLJ 63, Mahkamah Agung di dalam menolak https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.3353026436995399&bct=A&service=citation&risb=21_T22700365292&langcountry=MY&linkInfo=F%23GB%23WLR%23vol%251%25sel1%251984%25page%25452%25year%251984%25sel2%251%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8171202230257167&bct=A&service=citation&risb=21_T22700365292&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251989%25page%25298%25year%251989%25sel2%252%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7366581403958417&bct=A&service=citation&risb=21_T22700365292&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%253%25sel1%251990%25page%25123%25year%251990%25sel2%253%25 23 rayuan terhadap keputusan Mahkamah Tinggi yang membenarkan permohonan untuk mencelah prosiding di hadapannya telah memutuskan berikut: “In determining whether a party may be added as an intervener, the test is if his 'legal interests', ie his rights against or liabilities to any party to the action in respect of the subject matter of the action would be directly affected by any order or judgment which might be made in the action. Applying the test the answer to the question was definitely in the affirmative where the respondent was concerned and therefore the High Court was correct in its decision allowing the respondent to intervene in these proceedings.” (emphasis added) [37] Aturan 15 Kaedah 6 Kaedah-Kaedah Mahkamah 2012 (KKM 2012) memperuntukan berikut: Misjoinder and non-joinder of parties (O. 15, r. 16) (1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in 24 dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. (2) Subject to this rule, at any stage of the proceedings in any case or matter, the Court may on such terms as it thinks just and either of its own motion or on application- (a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (b) order any of the following persons to be added as a party, namely- (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or (ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or 25 matter. (3) An application by any person for an order under paragraph (2) adding him as a party shall, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter. (4) A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized. [38] Di dalam hal permohonan Pemohon-Pemohon, Pemohon-Pemohonan telah menyatakan permohonan mereka telah dibuat menurut Aturan 15 Kaedah 6 2)(b) (i) & (ii) KKM 2012. Aturan 15 Kaedah 6(2)(b) KKM 2012 telah memperuntukan bahawa mana-mana pihak boleh ditambah atau dicantum sebagai pihak dalam keadaan-keadaan berikut: 26 (a) When that person should be heard and “ought to have been joined as a party”; (b) When that person’s “presence before the Court is necessary to ensure that all matters in dispute...may be effectually and completely determined and adjudicated upon”; or (c) Where it would be just and convenient for the Court to determine the questions and issues between the person and a party relating to the relief claimed by the party. [39] Lord Diplock di dalam penghakiman Privy Council di dalam kes Pegang Mining Co Ltd v Choong Sam Ors (1969) 2 MLJ 52 yang mengesahkan keputusan Mahkamah Persekutuan yang membenarkan permohonan Responden Pertama untuk menggantikan namya sebagai pihak Perayu, telah mengemukakan pendekatan yang harus diambil mahkamah di dalam menggunakan kuasa budi bicaranya di bawah Aturan 16 Kaedah 11 Kaedah-Kaedah Mahkamah Agung 1957 (R.S.C 1957). Pendekatan yang diambil oleh Lord Diplock adalah seperti berikut: 27 “….. one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard.” [40] Lord Diplock seterusnya menyatakan: It has been sometimes said as in Moser v Marsden and in In re I.G. Farbenindustrie A.G. that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between 'legal' and 'commercial' interests helpful. A better way of expressing the test is. will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?” 28 [41] Pendekatan Lord Diplock di dalam kes Pegang Mining telah diterimapakai di dalam banyak kes tempatan. (Sila lihat: Eh Riyid v Eh the [1976] 1 MLJ 26 Arab; Malaysian Merchant Bank Bhd v Dr Jamaludin Dato’ Mohd Jarjis [1991] 2 MLJ 27, SC; Ingeback (Malaysia) Sdn Bhd v East West-UMI Insurance Berhad & Ors [1994] 2 CLJ 387, HC; Tsoi Ping Kwan v Medan Juta Sdn Bhd & Ors [1996] 3 AMR 3591; [1996] 4 CLJ 553; [1996] 3 MLJ 367, CA, at 380; Soo Hong & Leong Kew Moi v United Malayan Banking Corp Bhd & Anor [1997] 1 MLJ 690, CA; Takang Timber Sdn Bhd v Government of Sarawak & Anor [1998] 4 MLJ 42, CA) [42] Berdasarkan undang-undang yang telah Mahkamah ini utarakan awal tadi, adalah menjadi dapatan Mahkamah ini bahawa Pemohon-Pemohon tidak mempunyai kaitan langsung dengan proses likuidasi Responden dan petisyen OCBC Bank serta Pemohon-Pemohon juga tidak langsung tergolong di dalam mana-mana kategori yang digariskan di 29 bawah Aturan 15 Kaedah 6(2)(b) KKM 2012 mahupun pihak yang dinyatakan oleh Lord Diplock di dalam pendekatannya berkenaan bagaimana mahkamah perlu melaksanakan kuasa budi bicaranya dalam hal-hal pencelahan. [43] Mahkamah ini juga bersetuju dengan peguam Pelikuidasi bahawa permohonan Pemohon-Pemohon ini bukan sahaja di luar aturan tetapi adalah salah di sisi undang-undang, Undang-undang berkaitan kedudukan syarikat yang telah digulung adalah mantap dan jitu. Mahkamah ini suka merujuk kepada kes American International Assurance Bhd v Coordinated Services L Design Sdn Bhd [2012] 1 CLJ 506 di mana Mahkamah Rayuan telah memutuskan antara lain: “[25] It is trite law that once a company is wound up, the board of directors of the company becomes functus officio. The liquidator displaces the directors and the control of the activities of the company is vested with the liquidator. No one but the liquidator can act for the company…” [26] When a winding-up order is made, the directors of the 30 company remain in office but their powers are removed. While the company is in the process of being wound up a person cannot perform or exercise, and must not purport to perform or exercise a function or power as an officer (other than a liquidator) of the company, except with the approval of the liquidator or the court.” (Penekanan oleh Mahkamah ini) (Sila lihat: HLE Engineering Sdn Bhd v HTE Letrik Bumi JV Sdn Bhd [2015] MLJU 8: “As statement of general principle that pertains to a situation involving a wound-up company, it is trite that its subsequent affairs would be in the hands of its liquidator.”) [44] Mahkamah juga telah menyatakan awal tadi mengenai kuasa mahkamah didalam penyingkiran Pelikuidasi di bawah Seksyen 232(1) Akta. [45] Mahkamah ini bersetuju dengan peguam Pelikuidasi bahawa Pemohon-Pemohon tidak mempunyai kepentingan undang-undang secara terus dan langsung dengan Petisyen 31 Penggulungan OCBC Bank dan tidak berkaitan dengan proses likuidasi Responden. Pemohon-Pemohon juga tidak mempunyai locus standi atau kapasiti undang-undang bagi membuat permohonan Kandungan 35 ini, STT-SPA tersebut tidak memberi hak kepada Pemohon-Pemohon untuk menganggu-gugat proses likuidasi ataupun hak untuk mengenepikan perintah atau hak untuk menyingkirkan Pang. [46] STT-SPA tersebut juga tidak menjadikan Pemohon-Pemohon pemiutang kerana tidak ada penghakiman yang boleh dikuatkuasakan terhadap Responden (tindakan writ Responden telah ditolak, begitu juga tuntutan balas Pemohon-Pemohon telah juga ditolak). [47] Pemohon-Pemohon bukanlah penyumbang mahupun pemegang saham Responden. STT-SPA tersebut tidak melayakkan Pemohon-Pemohon untuk membawa tindakan terhadap Pelikuidasi sebagai pihak yang menguruskan dan mentadbirkan hal ehwal Responden. Proses likuidasi yang diuruskan oleh Pelikuidas melibatkan hak-hak pemiutang dan 32 hak-hak pihak-pihak yang telah digariskan di bawah Akta. [48] Adalah menjadi dapatan Mahkamah ini juga bahawa hak Pemohon-Pemohon yang wujud berdasarkan STT-SPA tersebut adalah hak untuk menuntut Pelikuidasi untuk menguatkuasakan STT-SPA tersebut. Sekiranya Pelikuidsai gagal atau enggan menguatkuasakan tuntutan Pemohon-Pemohon, maka, Pemohon-Pemohon bolehlah membawa tindakan terhadap Pelikuidasi bagi penguatkuasaan STT-SPA tersebut ke Mahkamah. [49] Namun, undang-undang adalah jelas bahawa mana-mana pihak yang mempunyai tuntutan terhadap syarikat yang telah digulungkan, ia hendaklah membawa tindakan terhadap Pelikuidasi syarikat. Undang-undang juga memperuntukan bahawa memandangkan Pelikuidasi adalah pegawai lantikan mahkamah, maka bagi membawa tindakan terhadap Pelikuidasi, kebenaran untuk memulakan tindakan hendaklah diperolehi terlebih dahulu daripada mahkamah penggulungan. Setelah mendapat kebenaran daripada mahkamah penggulungan untuk memulakan tindakan atau prosiding 33 terhadap Pelikuidasi, baharulah Pemohon-Pemohon boleh memfailkan tindakan Saman Pemula ataupun tindakan writ untuk menguatkuasakan hak mereka yang wujud bersandarkan STT-SPA tersebut. [50] Di dalam keadaan ini, Pemohon-Pemohon tidaklah boleh mendapat relif undang-undang yang dipohon dengan memfailkan permohonan di Kandungan 20 ataupun Kandungan 35. [51] Kandungan 35 yang difailkan oleh Pemohon-Pemohon bukan sahaja khilaf aturan tetapi juga tidak menepati peruntukan undang-undang. Pemohon-Pemohon di relif 1, Kandungan 35 telah memohon berikut: (1) Kebenaran diberi kepada Pemohon-Pemohon yang disebut di atas untuk mencelah dalam Petisyen ini dan menjadi satu pihak di sini; Pemohon-Pemohon tidak boleh mengatakan bahawa kebenaran yang dipohon adalah kebenaran yang diperlukan 34 di bawah Akta Syarikat kerana di dalam permohonan Pemohon-Pemohon, kebenaran yang dipohon adalah kebenaran untuk mencelah menurut Aturan 15 Kaedah 6(2) (b) KKM 2012 dan bukanlah kebenaran untuk memulakan prosiding atau tindakan terhadap Pelikiudasi menurut Akta Syarikat 1965 {Seksyen 236(3) Akta}. Kalaupun andainya Mahkamah ini menerima bahawa kebenaran itu yang dimaksudkan, maka relif bagi menguatkuasa hak Pemohon-Pemohon di dalam STT-SPA tidak boleh diperolehi di dalam Mahkamah Penggulungan ini tetapi Pemohon-Pemohon hendaklah membawa tindakan terhadap Pelikuidasi di dalam guaman yang lain dan berasingan dengan menamakan Responden di dalam Likuidasi dan serahan kepada Pelikuidasi dan bukanlah di dalam tindakan penggulungan 28-22-2006 ini. [52] Atas alasan di atas sahaja permohonan Pemohon-Pemohan semestinya gagal. [53] Mahkamah ini juga perlu menyentuh mengenai percubaan 35 Pemohon-Pemohon untuk mendapat penyingkiran Pang sebagai Pelikuidasi dengan membangkitkan dakwaan-dakwaan bahawa Pang telah gagal melaksanakan tugas statutori mandatori yang tertanggung ke atasnya, Pang telah menjalankan tugasnya bertentangan dengan tugas-tugas dan kepentingan Responden dan Pang telah nenyalahguna kuasanya, walhal di Kandungan 35, Pemohon-Pemohon telah tidak langsung menyatakan salah satu relif yang di pohon adalah di bawah Seksyen 232(1) Akta. Seksyen 232(1) Akta ini hanya timbul di dalam hujahan bertulis Pemohon-Pemohon. Penelitian ke atas Kandungan 35 Pemohon-Pemohon, Pemohon-Pemohon hanya semata-mata bersandarkan kepada Seksyen 236 Akta sahaja yakni perihal tugas-tugas statutori Kandungan 35 Pelikuidasi di bawah Akta tanpa merujuk kepada Seksyen 232(1) Akta. [54] Berdasarkan alasan-alasan di atas, Mahkamah ini menolak permohonan Pemohon-Pemohon di Kandungan 35 dengan kos. Pemohon-Pemohon dengan ini diperintahkan membayar Pelikuidasi kos sebanyak RM8000.00. 36 ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (NCVC 8) Selangor Darul Ehsan Bertarikh 27 haribulan Julai 2015 Peguam Plaintif - Tetuan Lee, Ling & Partners Encik Jerry Ling Peguam Defendan - Tetuan Andrew Davis & Co Encik Andrew Davis Cik Zaitul Naziah Jabatan Insolvensi - Cik Yurakasuma

Tika 2.6.0

24-754-06/2014

PLAINTIF 1. TAN WEI MIA 2. TAN WEO CHEONG 3. TAN WAI CHONG 4. TAN BOON CHIT (As Trustee and Executor of the estate of Tan Bok Yin @ Tan Hong Yin) DEFENDAN 1. PENTADBIR TANAH GOMBAK 2. PEJABAT TANAH DAN GALIAN SELANGORLAIN-LAIN-

13/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=caa9bdea-c4f8-404b-936b-e700e24af843&Inline=true

Microsoft Word - 24-754-06-2014 Tan Wei Mia dan 3 lagi v Pentadbir Tanah Gombak dan 1 lagi 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO : 24-754-06/2014 In the matter of Lots 841, 842, 843 dan 844, Mukim Hulu Kelang, Daerah Gombak, Negeri Selangor And In the matter of Section 53 of the National Land Code 1965 And In the matter of Section 41(1) of the Specific Relief Act 1950 BETWEEN 1. TAN WEI MIA 2. TAN WEI CHEONG 3. TAN WAI CHONG 4. TAN BOON CHIT ... PLAINTIFFS (As Trustee and Executor of the estate of Tan Bok Yin @ Tan Hong Yin) AND 1. PENTADBIR TANAH GOMBAK 2. PEJABAT TANAH DAN GALIAN SELANGOR ... DEFENDANTS 2    GROUNDS OF JUDGMENT (Enclosure 1 – Originating Summons) A. BACKGROUND FACTS [1] The present case amidst its complex underlying facts is a simple claim for a declaration with regard to the categorisation of lands held by the Plaintiffs. What the Plaintiffs sought to claim here is that owing to the fact that their lands were Registry Title Lands alienated before the commencement date of the National Land Code 1965 (“Code”) the Plaintiffs no longer need to adhere to Section 124 of the Code in order to have their land categorised as building land on the grounds that Section 53(3) of the Code renders the lands to be impliedly, inherently or innately ‘building’ lands although the titles to the land do not categorise the lands into any categories. The Court will briefly allude to the facts of the case below. [2] The Plaintiffs in the present application are Tan Mei Mia (1st Plaintiff), Tan Wei Cheong (2nd Plaintiff), Tan Wai Chong (3rd Plaintiff) and Tan Boon Chit ( 4th Plaintiff as the Trustee and Executor of Tan Bok Yin @ Tan Hong Yin’s estates). 3    [3] All the Plaintiffs are holders and proprietors of 4 plots of alienated land which are Lots 841 and 843 located along Jalan Hulu Kelang, Mukim Hulu Kelang (“acquired lots”) and Lots 842 and 844 located behind the acquired lots (“adjacent lots”). All of these lots were alienated on 28.6.1929 which is before the date of commencement of the Code. Owing to the fact that the lots were alienated before the Code’s commencement date, the titles of the lots were not specified with any specific category of use (see Exhibits TBC-1 to TBC-4 of the Plaintiff’s Affidavit in Support (“AIS”)). [4] The 1st Defendant (Pejabat Tanah Daerah Gombak) is the Land Administrator having jurisdiction in the District of Gombak in which the Plaintiffs’ Lots are within the 1st Defendant’s jurisdiction. [5] The 2nd Defendant ( Pejabat Tanah dan Galian Selangor) is the Land Office of the State of Selangor, whose jurisdiction also covers the lots owned by the Plaintiff. [6] Ofisgate Properties Sdn Bhd (“Ofisgate”), a private limited company intends to develop the Plaintiff’s Lots 842 and 844 in a project known 4    as ‘Agro Pelancongan’. In pursuing this development project, Ofisgate has applied to the 1st Defendant for the Planning Permission to commence the Agro Pelancongan development project vide its letter dated 27.12.2010. [7] The 1st Defendant in turn replied that in light of the fact that the titles of Lots 842 and 844 do not specify the category of land use, it is incumbent upon the Plaintiffs to first, apply for a variation of the title to change the Lots’ land use from “Tiada” to “building”. (see Exhibit TBC-5 of the AIS): “ 2.3 Kategori kegunaan tanah dan syarat nyata tanah hakmilik terlibat adalah Tiada. Kelulusan pengenaan kategori kegunaan tanah dan syarat nyata dari Tiada kepada Bangunan dan Bangunan Perniagaan perlu diperolehi terlebih dahulu sebelum sebarang pembangunan dilaksanakan.” [8] Consequently, the Plaintiffs vide their letter dated 3.10.2013 objected to the requirement to apply for the affixing or variation of the land use category of the Lots as required by the 1st Defendant. The ground of 5    their objection was that the Court of Appeal has previously in two separate references for compensation regarding the acquisition of the acquired lots and the adjacent lots, allegedly has decided that the Lots should be categorised as ‘building’ land, and thus, it is incumbent upon the Defendants to make the necessary variations without the necessity of the Plaintiff making an application to the Defendants. (See Exhibit TBC-6 of the AIS) [9] Nonetheless, the 2nd Defendant in response to the letter above, responded vide its letter dated 19.11.2013 that the decision of the Land references for compensation referred and appended by the Plaintiffs is not related to the procedure of varying the category of land use of the Lots regarding the Plaintiffs’ application for planning permission. The decisions of the Court of Appeal are only relevant in determining the appropriate compensation from the acquisition of the acquired land. (See Exhibit TBC-6 of the AIS) Brief facts of the Acquisitions of the acquired lots 6    [10] This Court must highlight at this juncture that all of the proceedings discussed below in this heading is ultimately relevant only to the determination of the appropriate quantum of compensation following the acquisition of the acquired Lots. Any discussion to the category of land use is not exclusive to the categorisation of the land use but was discussed and decided merely to determine the appropriate amount of compensation payable. [11] Simply put, the acquired lots were acquired under Section 8 of the Land Acquisition Act 1960 for two separate projects namely the “Projek Lebuhraya Jalan Duta – Hulu Kelang (DUKE)” and “Projek Skim Bekalan dan Pengagihan Air Langat II – Fasa 1 (Cadangan Jajaran Paip Air Koridor Utara), Mukim Hulu Kelang, Daerah Gombak, Negeri Selangor (KTAK)”. The former was published in the Selangor State Government Gazette No. 460 and the latter was published in the Selangor State Government Gazette No. 3521. [12] The Plaintiffs in objecting the amount of compensation from the two acquisitions filed two Land references for each of the respective acquisitions namely the Shah Alam High Court Land Reference No. 7    15-129-2007 (“DUKE Land Reference”) and the Shah Alam High Court Land Reference No. 15-79-2009 (“KTAK Land Reference”). [13] Prior to the hearing of the land references on 26.11.2010, the High Court has adjudged that for the purposes of calculating compensation, the acquired Lots were categorised as “tanah pertanian yang mempunyai potensi komersial”. (See Exhibit TBC-7 of the AIS). [14] Entailing this adjudication, the High Court on 8.4.2011 has decided the rate of the market value of the acquired Lots for both the Land References based on the Order dated 26.11.2010 above. [15] The Plaintiffs filed two separate appeals against the High Court’s decision on 26.11.2010 (in Civil Appeals Nos. 01-36-2011 and B-01- 314-2011) and 8.4.2011 (in Civil Appeals Nos. B-01-37-2011 and B- 01-317-2011). The Court of Appeal has allowed the appeals against the decision on 26.11.2010. The Court of Appeal has also allowed the appeals against the decision on 8.4.2011 and ordered the Land 8    References to be reheard in the High Court. (See Exhibit TBC-9 of the AIS for the Orders of the Court of Appeal). Injurious Affection on Lots 842 and 844 [16] More pertinently, the Plaintiffs have filed a Notis Permohonan (Untuk Keputusan bagi isu-isu yang perlu Dihakimi oleh Mahkamah) on 21.3.2014 mainly requesting the Court to decide on the compensation for injurious affection of Lots 842 and 844 which is adjacent to the acquired lots. (See Exhibit TBC-10 of the AIS). [17] Accordingly, the High Court has decided that for the sake of quantifying compensation for the injurious affections on the adjacent lots, the adjacent lots should be categorised as ‘building’ lands. (See Exhibit TBC-11 of the AIS): “2. Pemohon-Pemohon berhak untuk menuntut kesan kemudaratan untuk Lot-Lot 842 dan 844…yang bersebelahan dengan Tanah Terjadual… walaupun tidak tertakluk kepada Pengambilan Tanah; 9    3. Lot-Lot 842 dan 844 patut dikategorikan sebagai tanah bangunan dan kesan kemudaratan terhadap Lot-Lot 842 dan 844 patut ditentukan berdasarkan asas ini;” [18] Now, the majority of the facts discussed above in relation to the acquired and adjacent lots are only relevant to the present case in the Plaintiff’s argument that the above decisions warrants the operation of Issue of Estoppel which allegedly warrants this Court’s exercise of discretion to declare the adjacent lots to be building lands without the Plaintiffs having to apply for a variation under Section 124 of the Code. [19] In the simplest manner possible, in reference to the facts of the land acquisitions and references, the Plaintiffs seek to sidestep the procedures under Section 124 of the Act to vary the category of land use of the adjacent lots in order to obtain the planning permission for the Projek Agro Pelancongan. In that, the Plaintiffs claim for: 10    i. a declaration that the adjacent lots’ category of land use is ‘building’ land; ii. other Orders that this Court see fit; and iii. costs for the present proceedings be borne by the Defendants. [20] Sieving through the plethora of facts, appeals and decisions above, the paramount issue to be determined in the present case is: [21] Whether the Plaintiffs are required to comply with Section 124 of the Code and apply for the variation of the titles of the Adjacent Land to change the category of land use from ‘Nil’ to ‘Building’, in light of the following facts: i. The decisions of the Court of Appeal and the High Court decision on the 21.3.2014; and 11    ii. The fact that the adjacent land were alienated before the commencement of the Code and were not specified of any category of land use. B. THE ADJACENT LOTS’ POSITION UNDER SECTION 53(3) AND SECTION 124 OF THE CODE [22] The Plaintiff’s stance on the adjacent lots’ category of land use is as follows: i. The adjacent lots are innately or inherently already ‘building’ lands by purview of Section 53(3) of the Code. Therefore, allegedly there is no change of category of land use. Thus, it is not necessary for the Plaintiffs to apply for a variation of the titles under Section 124 of the Code. ii. Section 124 of the Code does not cover instances where the variation of category of land use alike the instant case namely from ‘Nil’ to ‘building. Thus, Section 124 of the Code is not applicable in the present case. 12    [23] The Defendants’ case is simply that, notwithstanding the implied, inherent or innate category of land use of the adjacent lands, it doesn’t defeat the fact that the titles are still written as or affixed with the category of land use ‘Tiada’ or ‘Nil’. Thus, it is still incumbent upon the Plaintiffs to apply to the 1st Defendant under Section 124 of the Code and follow the procedures set therein, in order to change the written category of land use ‘Tiada’ to ‘Building’ or ‘ Bangunan’. Adding to that, it is also the Defendants’ case that Section 124 of the Code is sufficiently wide enough to cover instances where the variation of category of land use alike the instant case namely from ‘Nil’ to ‘building. [24] Now, this Court is in agreement that the adjacent lots fall squarely on the application of Section 53(3) of the Code owing to the fact that the lots were alienated before the commencement date of the Code and also was not affixed with any specific category of land use. Furthermore, it is appropriate that the adjacent lots be applied under Section 53(3) of the Code on the ground that the lots are held under Registry Title, thus precluding the operation of Section 53(2) of the Code. Section 53(3) of the Code reads: 13    “53. Conditions affecting use of lands alienated before commencement until category of land use is imposed (1) This section applies to all land alienated before the commencement of this Act other than land which, immediately before that commencement, is subject to an express condition requiring its use for a particular purpose. (3) All other land to which this section applies shall become subject at the commencement of this Act to an implied condition that it shall be used neither for agricultural nor for industrial purposes.” [25] The crux of the Plaintiffs’ submission is that, as per Section 53(3) of the Code, it is inherent or innate that the adjacent lots are categorised as building lands owing to the fact that it is subject to the condition that “it shall be used neither for agricultural nor for industrial purposes”. The inference the Plaintiffs intend to draw is that since there are three categories of land use (agricultural, industrial, and 14    building), the adjacent lands inherently are a building land, since the lots are neither for agricultural or industrial use. Thus, the Plaintiffs argued that there is not any or no necessity of a variation of title to be applied to the 1st Defendant. [26] The Defendants’ case however is that, notwithstanding the implied, inherent or innate categorisation of the adjacent lots, the titles remained affixed with ‘Tiada’ for its land use. Thus, it is still incumbent of the Plaintiffs to apply for a variation or change of category of land use to the 1st Defendant to set the variation in motion to affix the titles with the land use of ‘building’. Thus, the Code has already provided a remedy in the form of set procedures which would allow the Plaintiffs to vary or change the land use of the adjacent lots vide an application under Section 124 of the Code which reads: VARIATION OF CONDITIONS, RESTRICTIONS AND CATEGORIES 124. Power of State Authority to vary conditions, etc. on application of proprietor 15    (1) The proprietor of any alienated land may apply to the State Authority under this section for – (a) the alteration of any category if land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any if it is not so subject, for the imposition of any category thereon [27] The Defendants find support in the Federal Court decision in the case of Collector of Land Revenue, Federal Territory v Garden City Development Berhad [1979] 1 MLJ 223. This case is directly in point to the present case as it dealt with a land falling within the ambit of Section 53(3) of the Code and the propriety of an application to vary the category of land use under Section 124 of the Code. The Federal Court succinctly held in allowing the appeal: (1) The land in question was town land and on the coming into force of the National land Code came under provisions of section 53(3) of the Code which provides 16    that it shall be used neither for agricultural nor industrial purposes; (2) in order to use the land for building, the owners have to apply for the imposition of category of building under section 124 of the National Land Code” This Court may still refer to the Federal Court’s decision in Garden City’s with regard to the propriety of the application under Section 124 notwithstanding the Privy Council’s decision on appeal in the same case [28] Now, indeed this Court appreciates that the counsel for the Plaintiffs to refer the Court to the Privy Council decision which was the ensuing decision from the Federal Court decision. Indeed, the Privy Council has allowed the appeal. The Plaintiffs at this juncture contends that the decision in the Federal Court is bad law. [29] This Court must stress that this Court has had the opportunity to scrutinise the decision of the Privy Council. And from this scrutiny, it 17    is this Court’s considered view that insofar as the Federal Court’s decision regarding the propriety of an application under Section 124 of the Code is concerned, this portion of the Federal Court decision was not reversed or even canvassed in the Privy Council decision. Thus, the Federal Court’s decision on the propriety of the application under Section 124 of the Code remains a good law. [30] The Privy Council decision decides or reverses nothing on the propriety of Section 124 of the Code. In fact, it is vividly clear from the report that the Privy Council does not even consider Section 124 of the Code, and what more the procedures of the variation of land categories of alienated lands. The catchwords of the report on the Privy Council decision reads: “Land Law – Classification of land – Land alienated before the coming into force of National Land Code – Town Land held under Registry Title – Land to be used neither for agricultural nor industrial purposes – Whether there was need to apply for imposition of category of use of land to be used for building – 18    Time for appeal – National Land Code, ss 53, 110, 116, 127, 128,& 148” [31] A plain reading of the catchwords above would reveal that Section 124 of the Code was specifically omitted from being deliberated in the decision of the Privy Council. [32] Furthermore, even what was held by the Privy Council in its decision mentions nothing at all on the propriety of an application under Section 124 of the Code. The Privy Council has never made any finding on the propriety of an application under Section 124 of the Code. The decision reads: “(1) the stamping of the words "Lease for agricultural land" on the original lease could not in itself have the effect of imposing a condition for use for agriculture only and in the circumstances it was not possible to infer from the lease an intention to restrict the use of the land to agriculture; 19    (2) as the land was town land held under registry title, the provisions of section 53(3) of the National Land Code applied to the land with the result that there was an implied condition that it shall be used neither for agricultural nor for industrial purposes; (3) there is no ground for reading into section 53 (3) of the National Land Code a general prohibition against use for building purposes; (4) in a timeous appeal against the section 128 notice, the appellants were in a position to open up all questions upon which its validity depended, in particular the questions whether their land was subject to the condition of agricultural use only and whether on a proper construction of section 53 use of it for building purposes was prohibited” 20    [33] The decision only touches on the rights to appeal under Section 418 of the Code and also a more or less an academic question on the reading of Section 53(3) of the Code on whether it prohibits the use of land to erect buildings or otherwise. [34] Thus, it is reiterated that the Federal Court’s decision on the propriety of an application under Section 124 of the Code for a variation of category of land use in light of lands under Section 53(3) of the Code, remains a good law. Therefore, this Court is bound to follow the decision of the Federal Court. An application under Section 124 of the Code remains a requirement albeit the adjacent lands are impliedly, inherently or innately ‘building’ lands [35] Even if the lot is impliedly a ‘building’ land, it remains that in order for the title to be varied from ‘tiada’ to ‘building’, it goes without saying that the Plaintiff is still subject to the remedies and procedures under the Code in order to have such variations registered and affixed on the title. 21    [36] Arguing that the adjacent lots are impliedly, innately or inherently ‘building’ land does not escape or allow the Plaintiff to eschew from the compliance to the remedies and procedures set under the Code. It still stands now that the title is affixed the word ‘tiada’ (notwithstanding that it is inherently ‘building’) and should be changed or varied into ‘building’. This is a variation on the title and one such variation which falls squarely on the ambit of Section 124 of the Code. [37] On the same point regarding the implied nature of the adjacent lots, the Plaintiffs contended that this Court ought to distinguish the present case from the Federal Court decision in Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135. However, it is reiterated here that there is and there will be a necessary variation of category of land use on the titles notwithstanding the fact that the adjacent lots are impliedly ‘building’ lands. Thus, this Court finds no reason at all to distinguish the present case from the decision in Sri Lempah. 22    Section 124 of the Code is verily wide enough to cover the adjacent land in the present case [38] Although fallible, the Plaintiffs also contended that Section 124 of the Code is not sufficiently wide to cover lands which were not affixed with any land use. It was argued that Section 124 of the Code only covers variations of titles which are already affixed with a particular land use, example being from agricultural to industrial or industrial to building. [39] This Court finds no hesitation to wholly disagree with this contention. A simple and plain reading of the section would reveal that the section expressly covers and caters to instances alike the adjacent land. The term “any alienated land” in the section [40] It is without a single shade of doubt that the State Authority’s power under Section 124 of the Code is encompassing and applies to any alienated land notwithstanding its land use. The section reads: 23    124. Power of State Authority to vary conditions, etc. on application of proprietor (1) The proprietor of any alienated land may apply to the State Authority under this section for… Section 124(1)(a) specifically covers variations of land use of lands which was not affixed or subjected to any category of land use [41] It is as clear as day that Section 124(1)(a) of the Code specifically covers instances of “the imposition of any category” on land which is “not so subject (to a category of land use) affixed with any category of land use. This sub-section reads: (a) the alteration of any category if land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any if it is not so subject, for the imposition of any category thereon 24    [42] Thus, in light of the above, it is this Court’s considered view that Section 124 of the Code is sufficiently wide to cover the variation of category of land use of the adjacent lots. C. DOES ISSUE ESTOPPEL OPERATE TO ESTOP THE DEFENDANTS FROM CONTENDING AGAINST THE DECISIONS IN THE LAND REFERENCES? [43] The Plaintiffs in their submissions have contended very briefly in passing that issue estoppel allegedly operates against the Defendants and thus the Defendants are estopped from contending against issues which were already decided in the Land References. [44] Nonetheless, this contention of the Plaintiffs falls short from any merits. Firstly, the decisions and orders made were only in the view of a land reference. As such the orders and decisions were made exclusively for the purposes of the determination of the appropriate compensation payable. 25    [45] Secondly, the orders and decisions only go as far as to indicate the correctness of the adjacent lots to be categorised as building land. But it does not render it incumbent of the Court to usurp the jurisdiction of the State Authority and forego the set remedies and procedures under the written law of the Code. [46] There is no issue estoppel here. The pertinent issue in the present case is NOT at all on the propriety of the categorisation as decided in the Land References. But instead it is on the proper mode of varying and affixing the proper category onto the titles of the adjacent land. And thus it is reiterated here, that notwithstanding the correctness of the implied land use of the adjacent lots, the Plaintiffs must still go through the proper procedures and remedies set forth under the Code in Section 124 of the Code to affix the proper category of land use on the titles of the adjacent lots. There is no reason to warrant this Court to exercise its discretion under Section 25 of the Court of Judicature Act 26    [47] On the same note of the above, this Court is of the considered view that the circumstances of the present case do not warrant the exercise of this Court’s discretion in granting such declaratory order to the Plaintiffs. [48] Amidst the Plaintiffs’ submission at length on this issue, the fact that Section 124 of the Code is the proper procedure and remedy which is readily available to be opted by the Plaintiffs totally negates any necessity of the Court to exercise its discretion to usurp the statutory authority and jurisdiction afforded by the Code onto the State Authority. [49] This Court is definitely not the proper authority to set the variation of the titles in motion when the written law of the Code has already afforded such proper authority and jurisdiction to the State Authority. This Court is guided by Federal Court decision in the case of Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393: 27    “(Per Gopal Sri Ram JCA) As a general rule, orders of a court of unlimited jurisdiction may not be impugned on the ground that they are void in the sense that they may be ignored or disobeyed. However, it is well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law” [50] Furthermore, there is also NO necessity to exercise such discretion when there is a sufficient remedy under the Code which is readily available to the Plaintiffs. This Court is guided by the Court of Appeal decision in the case of Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the Estate of Loo Cheng Ghee) [1998] 4 MLJ 651: “It is beyond dispute that the remedy of declaration is discretionary in nature. Section 41 of the Specific Relief Act 1950 reads as follows: Any person entitled to any legal character, to any right as to any property, may institute a suit against any person 28    denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so. Explanation — A trustee of property is a 'person interested to deny' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.' (Emphasis added.) Although s 41 is not a complete code upon the subject of declaratory decrees (Attorney General of Hong Kong v Zauyah Wan Chik & Ors and another appeal [1995] 2 MLJ 620) and the power to make a declaration is almost unlimited (Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at p 507 per Lord Sterndale MR), yet, the remedy of declaration may be 29    refused upon settled principles. Thus, generally speaking, the court will not grant a declaratory judgment where an adequate alternative remedy is available (Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41) D. COURT’S FINDING [51] In light of all the above deliberations, it is this Court’s considered view that notwithstanding the fact that the adjacent lots under Section 53(3) of the Code are impliedly, inherently or innately ‘building’ lands, it does not preclude the operation of Section 124 of the Code for the Plaintiffs to apply for a variation of the category of land use unto the titles of the adjacent lots to affix the titles with the proper land use. [52] Furthermore, it is also this Court’s considered view that the previous orders and decisions in the land references do NOT warrant the exercise of this Court’s discretion to grant the declaratory relief sought for by the Plaintiffs. 30    E. COURT’S DECISION AND DIRECTIONS [53] In light of all of the above findings, it is this Court’s decision that the Plaintiffs have indeed failed to prove their case. [54] This Court hereby dismisses the Plaintiffs’ case. On the issue of costs [55] Having heard the submissions from the counsels for the Plaintiffs and the Defendants, this Court hereby orders the Plaintiffs to pay the Defendants a global sum of RM5,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 13th day of July, 2015 31    For the Plaintiffs - Tetuan Mah Weng Kwai & Associates Encik Raymond Mah Cik Choo Mun Wei For the Defendants - Kamar Penasihat Undang-Undang Negeri Selangor Cik Nurfariza bt. Ridzuan

Tika 2.6.0

25-47-06/2013

PEMOHON SOO KIAN HUAT RESPONDEN 1. MAJLIS DAERAH KUALA LANGAT 2. PENTADBIR TANAH KUALA LANGAT 3. PENTADBIR HAKMILIK NEGERI SELANGOR 4. JABATAN PERANCANG BANDAR DAN DESA NEGERI SELANGOR 5. JABATAN UKUR DAN PEMETAAN SELANGOR 6. KERAJAAN NEGERI SELANGOR DARUL EHSAN 7. ANG LAI HUAT

10/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=01f66464-ba22-4c76-ba3e-063f48422208&Inline=true

Microsoft Word - 25-47-06-2013 Soo Kian Huat Lwn MDKL dan 6 yg lagi 1    DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN NO. 25-47-06/2013 Dalam perkara Geran No. Hakmilik 57362, Lot 15042, Seksyen 3, Bandar Banting, Daerah Kuala Langat, Negeri Selangor ANTARA SOO KIAN HUAT ….. PEMOHON DAN 1. MAJLIS DAERAH KUALA LANGAT 2. PENTADBIR TANAH KUALA LANGAT 3. PENDAFTAR HAKMILIK NEGERI SELANGOR 4. JABATAN PERANCANG BANDAR DAN DESA NEGERI SELANGOR 5. JABATAN UKUR DAN PEMETAAN SELANGOR 6. KERAJAAN NEGERI SELANGOR DARUL EHSAN 7. ANG LAI HUAT …. RESPONDEN- RESPONDEN 2    ALASAN PENGHAKIMAN (Semakan Kehakiman)     [1] Pemohon di dalam kes ini telahpun diberikan kebenaran pada 27.11.2013 untuk memulakan prosiding semakan kehakiman terhadap ketujuh-tujuh Responden. [2] Selaras dengan kebenaran itu, pada 9.12.2013 Pemohon telahpun memfailkan Borang 110 (Notis Pendengaran Permohonan Bagi Semakan Kehakiman) menurut Aturan 52 Kaedah 4 Kaedah-Kaedah Mahkamah Tinggi 2012 (KKM 2012) bagi penetapan tarikh perbicaraan permohonannya di Mahkamah ini. Namun Penyataan Menurut Aturan 52 Kaedah 3 KKM 2012 hanya telah difailkan pada 3.7.2014. [3] Melalui prosiding semakan kehakiman ini, Pemohon memohon kepada Mahkamah relif-relif / perintah- perintah berikut: a. Satu deklarasi bahawa Pemohon selaku wasi dan benifisiari Wasiat Soo Thong Liang, Soo Thong Liang mempunyai locus standi untuk membawa tindakan ini 3    terhadap Responden-Responden bagi melindungi dan memelihara estet Soo Thong Liang tersebut. b. bahawa suatu perintah mandamus diarahkan kepada Pentadbir Tanah Kuala Langat dan Pendaftar Hakmilik Selangor untuk membatalkan Geran bagi Lot 15042 yang telah salah dikeluarkan terhadap Ang Lai Huat dan/atau supaya Lot 15042 tersebut dikekalkan sebagai lorong belakang; c. bahawa suatu perintah mandamus diarahkan kepada Pentadbir Tanah Kuala Langat dan Pendaftar Hakmilik Selangor untuk mengekalkan saiz Hartanah Soo Thong Liang seperti Suratan Hakmilik Sementara iaitu H.S. (D) No. 1824 Lot No. 407 Seksyen 3, Daerah Kuala Langat, Negeri Selangor dan H.S. (D) No. 1825 Lot 408 Seksyen 3, Daerah Kuala Langat, Negeri Selangor yang kini dikenali sebagai Lot 15045 dan Lot 15046. 4    d. bahawa satu perintah mandamus diarahkan kepada Majlis Daerah Kuala Langat untuk menghalang pembinaan dan/atau merobohkan satu struktur bangunan 3 tingkat di atas Lot 15042 (dahulunya dikenali sebagai Lot 404) yang merupakan lorong belakang; e. bahawa satu perintah injunksi diberikan terhadap Ang Lai Huat menghalang beliau meneruskan pembinaan bangunan 3 tingkat di atas Lot 404 (atau Lot 15042) dengan tujuan menghalang Pemohon menikmati keputusan Permohonan Semakan Kehakiman ini; LATAR BELAKANG KES [4] Bagi mengetahui dengan lebih jelas mengenai permohonan Pemohon, latar belakang yang mendorong Pemohon memulakan prosiding semakan kehakiman ini perlu dinyatakan di sini. Ianya adalah seperti berikut: 5    4.1 Pemohon adalah seorang individu yang bernama Soo Kian Huat yang beralamat di No. 189, Jalan Bunga Pekan Kawasan 6, 42700 Banting, Kuala Langat, Selangor. 4.2 Pemohon telah menamakan pihak-pihak di bawah ini sebagai Responden-Responden: 1. Majlis Daerah Kuala Langat 2. Pentadbir Tanah Kuala Langat 3. Pendaftar Hakmilik Negeri Selangor 4. Jabatan Perancang Bandar Dan Desa Negeri Selangor 5. Jabatan Ukur Dan Pemetaan Selangor 6. Kerajaan Negeri Selangor Darul Ehsan 7. Ang Lai Huat 4.3 Pemohon pada awalnya (semasa memfailkan permohonan untuk kebenaran bagi memulakan prosiding semakan prosiding) telah mendakwa bahawa beliau adalah tuanpunya tanah yang terkandung di H.S (D) No. 1824, Lot. No. 407, Daerah Kuala Langat, Negeri Selangor dan H.S (D) No. 1825 Lot. No. 408, Sek. 3, Daerah Kuala Langat. 6    4.4 Kemudiannnya, apabila Responden Pertama dan Responden Kedua hingga Keenam memfailkan afidavit-afidavit jawapan mereka masing-masing {Responden Pertama pada 25.2.2015 (Kandungan 29) dan Responden Kedua hingga Keenam pada 7.5.2014 (Kandungan 36)} bagi menentang permohonan Pemohon dan menyangkal pengataan Pemohon yang beliau adalah pemilik hartanah-hartanah tesebut serta menegaskan tuanpunya berdaftar hartanah-hartanah tersebut adalah Soo Thong Liang, Pemohon kemudiannya telah menukar posisi dan statusnya di dalam Afidavit Balasan Pemohon yang diikrarkan pada 10.3.2015 (Kandungan 30) dan menyatakan pula beliau sebenarnya bertindak sebagai wasi dan benefisiari semua harta tidak alih bagi Harta Pusaka Soo Thong Liang menurut Wasiat Soo Thong Liang yang bertarikh 22.2.2005. 4.5 Mahkamah ini mengambil maklum bahawa penegasan posisi atau status sebagai tuanpunya atau pemilik hartanah-hartanah dan wasi dan waris hartanah-hartanah tersebut adalah satu perbezaaan yang sangat besar dan ketara kerana kedudukan 7    tuanpunya tanah dan wasi atau waris kepada pesaka mempunyai implikasi undang-undang yang berbeza. Mahkamah ini berpendapat bahawa Pemohon telah membuat pengataan yang tidak benar semasa memohon kebenaran untuk memulakan prosiding semakan kehakiman. Sekiranya Pemohon semasa permohonan untuk kebenaran telah menyatakan statusnya sebagai wasi dan waris kepada satu pesaka sebenar si mati, Mahkamah ini pasti memberi pertimbangan yang berbeza terhadap permohonan kebenaran. Apatah lagi, perbezaan ini timbul setelah lebih satu atau dua tahun selepas kebenaran memulakan prosiding semakan kehakiman diberikan kepada Pemohon. Tambahan pula, wasiat yang mana Pemohon cuba berpaut atau bergantung adalah satu wasiat yang telah lama dilaksanakan lebih dari lapan (8) tahun dari tahun 2013 (tahun pemfailan permohonan untuk kebenaran) dan Sembilan (9) atau sepuluh (10) tahun dari tahun 2015 (tahun Afidavit Balasan Pemohon diikrarkan). 4.6 Soo Thong Liang adalah bapa Pemohon. Soo Thong Liang adalah merupakan pemilik dua bidang hartanah yang 8    terkandung di H.S. (D) No. 1824 Lot No. 407 Seksyen 3, Daerah Kuala Langat, Negeri Selangor dan H.S.(D) No. 1825 Lot 408 Seksyen 3, Daerah Kuala Langat, Negeri Selangor (hartanah-hartanah tersebut) yang dikenali sebagai Lot 15045 dan Lot 15046. 4.7 Manakala Responden Ketujuh (Ang Lai Huat) adalah pemilik hartanah terkandung di Geran No. Hakmilik 57362, Lot 15042, Seksyen 3, Bandar Banting, Daerah Kuala Langat, Negeri Selangor iaitu hartanah yang dahulunya merupakan lorong belakang. Tanah Defendan Ketujuh adalah bersempadan dengan tanah-tanah Soo Thong Liang. Responden telah dijadikan pihak menurut Perintah Mahkamah bertarikh 16.7.2014 atas permohonan Pemohon menurut Aturan 15 Kaedah 4 KKM 2012. 4.8 Pemohon antara lain mendakwa bahawa Geran No. Hakmilik 57362, Lot 15042, Seksyen 3, Bandar Banting, Daerah Kuala Langat Negeri Selangor Darul Ehsan yang dikeluarkan kepada Ang Lai Huat atau Responden Ketujuh tersebut telah salah 9    dikeluarkan oleh Responden Kedua kerana Lot 15042 tersebut adalah merupakan jalan atau lorong dan ianya bukanlah untuk bangunan. Akibat daripada pengeluaran Geran Hakmilik 57362 bagi Lot 15042 kepada Responden Ketujuh itu, Pemohon telah mendakwa bahawa hartanah-hartanah tersebut telah susut sebanyak 20 kaki untuk dijadikan simpanan laluan atau lorong laluan orang. 4.9 Pemohon telah mendakwa bahawa kesilapan tersebut juga telah menyebabkan anjakan blok berlaku ke arah timur di mana Lot 15042, Seksyen 3 iaitu lot kepunyaan Responden Ketujuh telah beranjak di atas blok yang dahulunya merupakan lorong belakang selebar 20 kaki. Menurut Pemohon anjakan itu telah menyebabkan lorong belakang selebar 20 kaki telah beranjak ke arah timur ke atas tanah Soo Thong Liang. Menurut Pemohon lagi, anjakan itu juga telah menyebabkan lorong di sebelah timur lot-lot Soo Thong Liang iaitu Lot 407 dan Lot 408 telah menjadi laluan awam. Maka adalah menjadi dakwaan Pemohon anjakan itu telah mengakibatkan Lot-Lot 407 dan 408 kepunyaan Soo Thong Liang telah dikecilkan. 10    4.10 Pemohon seterusnya telah mendakwa kesilapan telah berlaku di Pejabat Daerah/ Tanah Kuala Langat semasa kerja-kerja pengukuran bagi maksud pengeluaran geran hakmilik 57362 bagi Lot 15042 dibuat oleh Juruukur Berlesen ke atas tanah- tanah tersebut di mana Juruukur Berlesen telah tersilap ukuran yang menyebabkan pelan yang telah buat adalah berbeza dengan pelan penapakan yang telah diperakui oleh Jabatan Perancang Bandar dan Desa Negeri Selangor. [5] Selepas daripada ini, Responden Pertama hingga Responden Keenam akan dirujuk sebagai Responden-Responden. Namun adakalanya setiap Responden-Responden akan dirujuk atas nama mereka atau kedudukan mereka mengikut susunan nama di dalam tindakan ini. [6] Adalah menjadi dakwaan Pemohon juga bahawa kesilapan pengukuran oleh Juruukur Berlesen tersebut telah menyebabkan estet Soo Thong Liang mengalami kerugian yang tidak dapat ditaksirkan dengan wang ringgit. 11    [7] Pemohon juga telah mendakwa bahawa memandangkan kesilapan pengukuran telah dilakukan oleh Juruukur Berlesen, maka kesilapan yang dilakukan oleh Juruukur Berlesen tersebut adalah kesilapan yang telah dilakukannya sebagai ejen Pejabat Daerah/Tanah Kuala Langat dan menurut Pemohon lagi, kesilapan ini telah diakui sendiri oleh Pejabat Daerah/Tanah Kuala Langat. [8] Dalam pada itu, Responden Ketujuh telah dikatakan sedang di dalam proses membina satu unit bangunan tiga (3) tingkat di atas hartanahnya (Lot 15042). [9] Perbuatan Responden Ketujuh yang di dalam proses mendirikan bangunan di atas Lot 15042 tersebut telah tidak disenangi oleh Pemohon, maka Pemohon telah menulis surat-surat aduan kepada beberapa pihak termasuklah Majlis Daerah Kuala Langat, JUPEM Shah Alam, Pejabat Desa dan Bandar Shah Alam, Jabatan Ukur dan Pemetaan, Pejabat Setiausaha Kerajaan Negeri Selangor dan Biro Pengaduan Awam. 12    [10] Surat aduan pertama yang ditulis oleh Pemohon adalah surat bertarikh 9.3.2010 yang membuat aduan kepada Yang Dipertua Majlis Dearah Kuala Langat megenai pelan pembangunan di alamat Jalan Bunga Pekan 4, Banting, Selangor. Selepas itu aduan-aduan seterusnya telah dikemukakan oleh Pemohon kepada pihak-pihak berkenaan Ini telah berterusan dengan surat-menyurat, balas- membalas surat dan perbincangan-perbincangan antara Pemohon dengan pihak-pihak berkenaan sehinggalah Pejabat Menteri Besar Selangor mengeluarkan surat bertarikh 24.12.2012 yang antara lain kandungannya menyatakan sekiranya Pemohon masih tidak berpuashati, Pemohon bolehlah membuat semakan Mahkamah. Isi kandungan surat bertarikh 24.12.2012 diperturunkan agar fakta ini lebih jelas. “ADUAN TENTANG KESILAPAN UKURAN LOT 405, 406,407 & 408 Dengan segala hormatnya merujuk kepada perkara tersebut di atas. 2. Adalah dimaklumkan bahawa setelah dikaji akan aduan tuan didapati:- (i) .... (ii) .... (iii) .... 13    3. Dari itu, tidak ujudnya ‘istilah rezab jalan’ pada tapak berkenaan. Pihak tuan boleh membuat semakan Mahkamah sekiranya ujud ketidapuas hati akan fakta berkenaan.” [11] Mengenai kerja-kerja pembangunan tanah yang dijalankan oleh Responden Ketujuh di atas Lot 15042, Responden Pertama (Majlis Daerah Kuala Langat) telah menjelaskan kedudukan atau status kerja-kerja pembangunan yang dijalankan oleh Responden Ketujuh kepada Pejabat Menteri Besar melalui surat mereka bertarikh 23.3.2011 yang dialamatkan terus kepada YB Dato’ Seri Menteri Besar di mana Responden Pertama telah menyatakan bahawa mereka tidak pernah meluluskan pelan pembangunan bagi pembinaan di atas Lot 15042. [12] Responden Pertama telah melalui surat-surat (Notis-notis Roboh) mereka kepada Responden Ketujuh bertarikh 28.2.2011 dan 24.6.2013, telah memberi arahan kepada Responden Ketujuh untuk meroboh dan membersihkan struktur binaan di tapak pembangunan tersebut kepada keadaan sedia ada. 14    [13] Namun, Responden Ketujuh gagal mematuhi Notis-notis Roboh tersebut dan telah meneruskan juga kerja-kerja pembinaan di atas Lot 15042 tersebut. [14] Pemohon telah mendakwa bahawa tindakan Responden Ketujuh yang masih meneruskan pembinaannya telah memprejudiskan hak Pemohon sebagai wasi dan benefisiari Lot 407 dan Lot 408 yang mana, pada masa kini tidak mempunyai lorong belakang (di sebelah barat), justeru telah merendahkan nilai kedua-dua lot hartanah Soo Thong Liang tersebut yang dikecilkan dan terletak di tengah Bandar Banting, lokasi yang pesat membangun. [15] Pemohon telah juga telah mendakwa bahawa tindakan Responden Ketujuh yang membina struktur binaan di atas Lot 15042 iaitu lot yang dikhaskan sebagai lorong belakang adalah merupakan tindakan atau tinggalan dan juga perlanggaran keadilan asasi (‘breach of natural justice’) di pihak Responden Pertama dan Pejabat Tanah/Daerah Kuala Langat (Responden Kedua) sebagai badan- badan awam yang berkewajipan memastikan Lot 15042 itu kekal 15    sebagai lorong belakang dan tidak berganjak ke arah timur ke atas hartanah Soo Thong Liang iaitu Lot 407 dan Lot 408. [16] Maka, bagi melindungi dan memelihara estet (‘to protect and preserve the estate’) Soo Thong Liang yang telah diprejudiskan akibat kesilapan pengukuran Juruukur Berlesen dan keadaan kini menjadi lebih teruk disebabkan projek pembinaan di atas tanah Responden Ketujuh, Pemohon telah memfailkan permohonan semakan kehakiman ini memohon relif-relif sepertimana yang dinyatakan di perenggan 3 penghakiman ini. [17] Pemohon di dalam menegakkan kesnya terhadap Responden Kedua telah mengatakan bahawa kesilapan yang dilakukan oleh Juruukur Berlesen telah diakui sendiri oleh Pejabat Daerah/Tanah Kuala Langat (Responden Kedua) melalui surat mereka bertarikh 31.3.2010 (Eksibit “SKH-3”, Kandungan 2) kepada Yang Dipertua Majlis Daerah Kuala Langat (Responden Pertama). Menurut Pemohon berdasarkan surat Responden Kedua sendiri mengakui terdapat kesilapan teknikal. 16    [18] Bagi jelas kefahaman, perenggan 2 dan 3 surat bertarikh 31.3.2010 diperturunkan di bawah ini: 2. Semakan pentadbiran ini mendapati terdapat kesilapan teknikal semasa kerja-kerja pengukuran dibuat oleh Jurukur Berlesen yang menyebabkan pelan yang dikeluarkan adalah berbeza dengan pelan yang dikeluarkan dengan pelan pertapakan yang telah diperakui oleh Jabatan Perancang Bandar dan Desa Negeri Selangor (JPBD). Bagi mengatasi permasalahan berkenaan Jurukur Berlesen telah mendapatkan Sijil Akuan bernombor C 110642 bertarikh 15.5.1999 bagi melakukan kerja-kerja ukuran secara halus berdasarkan hakmilik yang telah didaftarkan pada 15 Ogos 1979 dan pelan yang telah diperakukan oleh Jabatan Perancang Bandar dan Desa. 3. Sehubungan dengan itu anjakan blok berlaku di mana Lot 15042 Seksyen 3 adalah di atas blok yang terdahulu adalah merupakan lorong belakang selebar 20 kaki sementara lorong 20 kaki masih dikekalkan tetapi anjakan blok tersebut mengakibatkan menutup lorong bersempadan. [19] Permohonan Pemohon ini telah ditentang oleh Responden- Responden. Sebagai permulaan, perlu dinyatakan di sini bahawa di 17    dalam menentang permohonan Pemohon ini, peguam yang mewakili Responden Pertama telah menimbulkan isu mengenai kebenaran bagi Pemohon bagi memulakan prosiding semakan kehakiman ini, yang menurut peguam Responden Pertama, Pemohon telah memfailkan permohonannya tanpa kebenaran Mahkamah yang diperlukan di bawah Aturan 53 Kaedah 3 Kaedah-Kaedah Mahkamah 2012 (KKM 2012). Mahkamah ingin menekankan bahawa pengataan tersebut adalah satu pengataan yang khilaf kerana sepertimana yang dinyatakan di perenggan 1 penghakiman ini, Pemohon telahpun diberi kebenaran untuk memulakan prosiding ini oleh YA Vernon Ong pada 27.11.2013. [20] Berdasarkan afidavit-afidavit yang difailkan di Mahkamah ini, Responden-Responden telah menentang permohonan Pemohon atas alasan-alasan berikut: (i) Pemohon tidak mempunyai locus standi kapasiti undang- undang untuk membawa tindakan ini. 18    (ii) Tindakan semakan kehakiman Pemohon ini telah difailkan di luar tempoh masa yang sah sebagaimana peruntukkan di bawah Aturan 53 Kaedah 3(6) Kaedah-kaedah Mahkamah 2012. (iii) Sebenarnya tidak ada anjakan yang berlaku (iv) Kalaupun berlakunya anjakan pada lorong laluan belakang hartanah Pemohon, saiz dan keluasan premis Pemohon tetap sama dan tidak berubah akibat anjakan tersebut. (v) Kes ini adalah melibatkan keputusan oleh Pentadbir Tanah, sekiranya Pemohon tidak berpuashati atas keputusan Pentadbir Tanah, remedi yang sepatutnya adalah di bawah seksyen 418 Kanun Tanah Negara dan bukannya semakan kehakiman. Alasan i: Pemohon tidak mempunyai locus standi yang sah untuk membawa tindakan ini. 19    [21] Adalah dihujahkan oleh Responden-Responden bahawa Pemohon sebenarnya tidak mempunyai locus standi atau kapasiti undang- undang untuk membawa atau memfailkan prosiding ini kerana Pemohon bukanlah tuanpunya atau pemilik berdaftar hartanah- hartanah Lot 407 dan 408 (hartanah tersebut). Pemilik berdaftar hartanah tersebut adalah Soo Thong Liang iaitu bapa Pemohon sendiri. Menurut peguam Responden-Responden memandangkan Soo Thong Liang adalah pemilik berdaftar yang namanya tertera di dalam geran hakmilik hartanah-hartanah tersebut, maka sekiranya ada kemudaratan atau terjejas, beliaulah yang merupakan orang yang telah dijejaskan atau dimudaratkan oleh keputusan mana-mana pihak berkuasa “person who is adversely affected by the decision of any public authority” sepertimana yang diperuntukkan di bawah Aturan 53 Kaedah 2(4) KKM 2012. [22] Peguam Responden-Responden telah juga menghujahkan bahawa Pemohon kononnya telah bertindak sebagai wasi dan waris Soo Thong Liang, tetapi tanpa apa-apa Geran Probet ataupun Geran Pentadbiran (Surat Kuasa Mentadbir). Maka, tanpa apa-apa geran probet atau geran pentadbiran, Pemohon menurut undang-undang 20    tidak mempunyai locus standi ataupun tidak mempunyai kapasiti undang-undang untuk membawa tindakan semakan kehakiman ini dan beliau bukanlah orang atau pihak yang termasuk di dalam kategori “any person who is adversely affected by the decision of any public authority” sepertimana yang diperuntukkan di bawah Aturan 53 Kaedah 2(4) KKM 2012. [23] Adalah juga ditimbulkan oleh peguam Responden-Responden bahawa Pemohon sebenarnya tidak pasti di dalam penegasan locus standi atau kapasiti undang-undangnya. Menurut Responden- Responden, pada mulanya Pemohon telah mendakwa di dalam Afidavit Sokongannya yang diikrarkannya pada 18 Jun 2013 (Kandungan 5) iaitu semasa permohonan Pemohon untuk kebenaran memulakan prosiding semakan kehakiman terhadap Responden- Responden Pertama hingga Keenam (sebelum Responden Ketujuh dijadikan sebagai pihak) yang Pemohon adalah tuanpunya atau pemilik hartanah-hartanah tersebut tetapi apabila dicabar mengenai ketuanpunyaannya ke atas hartanah-hartanah tersebut dengan merujuk kepada semakan rasmi geran hakmilik hartanah- hartanah tersebut (Eksibit “NS-1”, Kandungan) yang menunjukkan 21    Soo Thong Liang adalah tuanpunya berdaftar hartanah-hartanah tersebut dan lebih kurang dua tahun selepas itu, di dalam di dalam Afidavit Balasan Pemohon yang diikrarkan pada 10 Mac 2015 (Kandungan 30), Pemohon telah menukar posisinya sebagai wasi dan waris harta pesaka Soo Thiang Lai dan kononnya bersandarkan kepada wasiat Soo Thiang Lai yang telah dilaksanakan pada 22.2.2005 yang di eksibitkan dalam Kandungan 30 (Eksibit “SKH- 6”). [24] Adalah dihujahkan bagi pihak Pemohon bahawa Pemohon mempunyai locus standi bagi memulakan prosiding ini kerana pertamanya, beliau telah dilantik sebagai pentadbir pesaka Soo Thong Liang melalui wasiat Soo Thong Liang bertarikh 22.2.2005 dan keduanya, beliau juga merupakan salah seorang waris kepada pesaka Soo Thong Liang. Di dalam keadaan ini, menurut peguam Pemohon, Pemohon selaku atau sebagai wasi dan juga benefisiari yang dinamakan kepada kesemua Harta Tidak Alih Soo Thong Liang adalah orang yang mendapat kemudaratan dengan tindakan atau peninggalan berhubung kewajipan atau fungsi awam Responden- Responden ke atas hartanah-hartanah tersebut. Selanjutnya telah 22    dihujahkan oleh peguam Pemohon bahawa Pemohon adalah nyata pihak who is adversely affected by the decision of any public authority yang telah dinyatakan di dalam Aturan 53 Kaedah 4 KKM 2012 di mana apabila Responden apabila telah mengisu geran hakmilik kepada Responden Ketujuh berkaitan dengan Lot 15042, telah menjadikan Lot 407 dan Lot 408 kepunyaan Soo Thong Liang pada masa kini tidak mempunyai lorong belakang (di sebelah barat), menjadikan kedua-dua lot hartanah Soo Thong Liang dikecilkan, justeru telah merendahkan nilai kedua-dua lot hartanah Soo Thong Liang tersebut. [25] Peguam Pemohon telah bergantung kuat kepada kes Chew Huat Jin & Ors v Andrew Lim Tatt Keong & Ors [2013] 8 CLJ 533, di mana YA Hakim di dalam pemutusannya di dalam kes itu telah merujuk kepada kes Al Rashidy & Ors v Rosman Roslan [2007] 4 MLJ 297. ((1) ... However, in special circumstances, a beneficiary could seek a declaratory relief ‘for the limited purpose of protecting and preserving the assets of the estate’ especially if the legal representative to the estate had yet to be appointed...) Peguam Pemohon telah menghujahkan bahawa Pemohon di dalam kes di hadapan Mahkamah ini telah membawa prosiding ini bersandarkan kepada wasiat Soo Thong Liang yang menamakan 23    beliau sebagai pentadbir pesaka, dan sebagai wasi dan waris kepada Soo Thong Liang telah memulakan prosiding semakan kehakiman ini dengan tujuan terhad iaitu melindungi dan mengekalkan pesaka Soo Thong Liang. [26] Bagi Mahkamah ini memutuskan samada Pemohon mempunyai atau tidak mempunyai locus standi untuk memfailkan prosiding semakan kehakiman ini, undang-undang berkaitan locus standi atau kapasiti kedudukan undang-undang seorang pentadbir pesaka atau wakil pesaka atau waris kepada harta pesaka si mati molek diperhalusi. [27] Di dalam kes Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188, Mahkamah Persekutuan di dalam pemutusannya mengenai kedudukan waris di dalam harta pesaka yang mana si mati meninggal dunia tanpa wasiat telah membuat kesimpulan berikut: “It could be concluded that in law, a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter’s estate is complete and distribution made according to the law of distribution of the intestate estate”. 24    [28] Di dalam kes Rosman Roslan v Kassim Hj Arshad & yang lain [2005] 2 CLJ 669 pula, Mahkamah Rayuan yang telah merujuk kepada kes Chor Phaik Har di dalam alasan penghakimannya di muka surat 674 telah menyatakan berikut: “Jadi, surat kuasa tadbir adalah penting dan ia hendaklah diperolehi terlebih dahulu dari Mahkamah Sivil sebelum seseorang benefisiari hendak memulakan sesuatu tindakan untuk menuntut apa-apa kepentingan terhadap harta pusaka simati. Jika tidak, dia tidak mempunyai locus standi untuk membawa tindakan dalam mahkamah. Oleh kerana responden- responden tidak mempunyai surat kuasa tadbir bagi mentadbir harta pusaka simati Haji Abu Bakar, maka mereka tidak berkompeten dan mempunyai locus standi untuk membawa tindakan ini”. [29] Berdasarkan nas-nas di atas adalah menjadi undang-undang yang jelas dan jitu bahawa surat kuasa pentadbiran (samada geran probet atau surat kuasa mentadbir) hendaklah diperolehi terlebih dahulu sebelum seorang benefisiari atau waris boleh memulakan sesuatu tindakan untuk menuntut apa-apa kepentingan terhadap harta pusaka simati. Selagi surat kuasa pentabiran belum dikeluarkan pentadbiran pesaka simati tidak boleh dilaksanakan oleh mana-mana waris atau benefisiari. 25    [30] Namun begitu, di dalam kes kes Al Rashidy bin Kassim & Ors v Rosman Roslan [2007] 4 MLJ 297 telah diputuskan oleh Mahkamah Persekutuan antara lain seperti berikut: (1) The Court of Appeal allowed the first defendant’s appeal on the sole ground that the plaintiffs as beneficiaries had no locus standi to bring this action without first obtaining the grant of the letters of administration to the estate of the deceased. The Court of Appeal felt constrained by the decision in Deraman & Ors v Mek Yam [1977] 1 MLJ 52 to decide otherwise. However, what Deraman decided was that plaintiffs qua beneficiaries had no locus standi to apply to have their names registered as owners of the undivided share in the land (see paras 7, 9). (2) In deciding whether the plaintiffs had the locus standi or not in instituting the present action, it was necessary to determine the nature of their claim. The special circumstances which entitled a beneficiary to commence an action against a third party should not be confined solely to cases where a personal representative had defaulted in recovering the property of the estate. All the circumstances of the case ought to be considered by the court in arriving at a just result (see paras 9, 18); Wong Moy (Administratrix of the Estate of Theng Chee Khim, (deceased) v Soo Ah Choy [1996] 3 SLR 398 and Joseph Hayim Hayim & Anor v Citibank NA & Anor [1987] AC 730 referred. 26    (3) The suit sought a declaration that the respondent had obtained the title to the land through fraud. The question that the court ought to ask itself was whether the appellants had locus standi to institute an action seeking such declaratory relief. The action sought to regain land from a party who had by fraudulent means transferred the land to himself. The respondent had also entered upon the land and damaged the property. If the land is sold to a third party the land may be lost forever. The appellants had to act fast in order to protect and preserve the estate of the deceased. Thus there existed special circumstances for the plaintiffs qua beneficiaries to commence a legal action against the respondent for the purpose of protecting and preserving the assets of the estate (see paras 11, 19 - 20). [31] Di dalam kes Dato’ Ramesh a/l Rajaratnam v Datin Zaleha bt Abd Rahman & Ors [2014] 6 MLJ 651, Hamid Sultan, HMR di dalam penghakimannya bagi Mahkamah Rayuan mengenai kelonggaran keperluan ketat geran pentadbiran kuasa di dalam hal locus standi atau kapasiti undang-undang bagi perwakilan pesaka si mati di mana Mahkamah Persekutuan di dalam kes Al Rashidy bin Kassim telah menggunakan ujian keadaan khas atau keadaan istimewa, telah menyatakan berikut di perenggan [2]: 27    “The strict rule is that the letters of administration must be issued by the High Court to the administrator and/ or administratrix before any action can be taken for the benefit of the estate (see Janab’s Key to Civil Procedure, (5th Ed), pp143-144). Some limited exceptions are found in O 15 r 6a of the Rules of Court 2012 (‘the RC’). In Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3; [1968] 1 LNS 7, the plaintiff's administratrix brought an action against the defendant without having extracted the letters of administration even though it had been granted by the court. The defendant entered a conditional appearance and applied to the court to set aside the writ on the ground that the plaintiff had not acquired the locus standi yet. The court held that since the plaintiff had not extracted the grant of letters of administration, she had no power to sue as administratrix and therefore the suit was a nullity and must be set aside. The strict rule recently had been whittled down by the Federal Court to say if there are 'special circumstances' the administrator will have locus to proceed with the legal proceedings (see Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 MLJ 297; [2007] 3 CLJ 361). [32] Hamid Sultan HMR seterusnya di perenggan [4] dan [5] menyatakan berikut: [4] When 'special circumstances' are relied on the burden will be on the purported administrator to demonstrate on the issue of locus standi in the proceedings or by way of affidavits as the case may be before obtaining any orders from the court. In essence, those who rely on special circumstances do not per se have a legal right such as administrator lawfully appointed by the court, with the sealed order extracted. 28    [5] In light of Al Rashidy's case the courts will not ordinarily grant locus unless it can be shown that it was necessary and expedient to protect and preserve the interest of the deceased estate. In view of the statute which deals with probate and administration of estates, the threshold for the purported administrator is very high to satisfy the locus standi test. It all depends on the facts, circumstances, urgency of the matter, etc. The reason why letters of administration must be obtained before commencement of the action for the benefit of estate is well established and the jurisprudence need not be set out here. However, now the Rules of Court provides limited orders to be granted for the estate to be represented in an action or pending action as the court may think fit.” [33] Dari pembacaan nas-nas di atas, kedudukan undang-undang masih jelas dan jitu bahawa bagi membolehkan mana-mana orang disaluti dengan locus standi atau kapasiti undang-undang bagi mewakili pesaka si mati samada untuk memulakan tindakan bagi pihak pesaka ataupun menentang tindakan terhadap pesaka, suatu geran probet atau geran pentadbiran hendaklah dikeluarkan kepadanya. Kedudukan undang-undang mengenai keperluan ketat geran probet atau geran pentadbiran kuasa tersebut telah diberi kelonggaran sedikit berdasarkan apa yang telah diputuskan di dalam kes Al Rashidy dan Dato’ Ramesh al Rajaratnam. Namun, kelonggaran 29    ini bukanlah sesuatu yang boleh diberikan pada keadaan biasa tetapi ianya hanya boleh diberikan sekiranya dapat ditunjukkan bahawa ianya adalah satu keperluan patut dan segera bagi melindungi dan mengekalkan pesaka si mati. Oleh itu, sekiranya seseorang yang mendakwa mewakili pesaka simati (purported executor/administrator) dapat membuktikan melalui afidavitnya wujud keadaan khas yang memerlukan perlaksanaan segera bagi melindungi atau mengekalkan pesaka simati, perlaksanaan, keperluan undang-undang ketat pengeluaran geran probet atau geran pentadbiran dapat dikecualikan atau dilonggarkan. [34] Di dalam kes ini, Mahkamah ini telah meneliti dokumen-dokumen yang dieksibitkan oleh Pemohon di dalam afidavit-afidavit yang telah diikrarkan oleh Pemohon bagi menyokong permohonannya dan mendapati bahawa sememangnya Pemohon tidak mempunyai Geran Probet bagi mentadbir pesaka Soo Thong Liang. Hujahan peguam Pemohonpun mengenai locus standi Pemohon adalah semata-mata bersandarkan kepada wasiat Soo Thong Liang bertarikh 22.2.2005 (wasiat tersebut). Mahkamah ini akan juga menyentuh perihal wasiat tersebut di dalam penghakiman ini kelak. 30    WUJUD KEADAAN KHAS YANG MEMERLUKAN PERLAKSANAAN SEGERA BAGI MELINDUNGI ATAU MENGEKALKAN PESAKA SOO THONG LIANG [35] Berbalik kepada kes di hadapan Mahkamah ini, seperti yang dihujahkan oleh Responden-Responden, adalah benar yang Pemohon pada permulaan tindakan (peringkat kebenaran) telah mengaku sebagai tuanpunya hartanah-hartanah tersebut dan kemudian menukar posisinya apabila dicabar ketuanpunyaannya dengan kemudian di Kandungan 30 nya (Afidavit Balasan) telah mendeposkan pula bahawa beliau adalah wasi dan benefisiari atau waris kepada pesaka Soo Thong Liang, bapanya yang telah meninggal dunia dengan mengeksibitkan dokumen-dokumen di Eksibit SKH-6 seperti berikut: i. Wasiat di dalam Bahasa Inggeris yang telah dilaksanakan oleh Soo Thong Liang pada 22.2.2005 ii. Dokumen di dalam tulisan Cina iii. Terjemahan Wasiat (Pengesahan) yang ditulis Soo Thong Liang pada 26.2.2005 31    [36] Kedudukan undang-undang mengenai locus standi ataupun kapasiti undang-undang perwakilan pesaka si mati yang dinyatakan di awal penghakiman adalah jelas dan nyata. Persoalan yang perlu ditentukan oleh Mahkamah ini di dalam kes adalah samada Pemohon mempunyai locus standi ataupun kapasiti undang-undang bagi membolehkan permohonannya dipertimbangkan, dibicarakan dan diadjudikasikan oleh Mahkamah ini dan untuk itu adakah Pemohon telah melepasi tahap keperluan yang dikehendaki undang-undang iaitu melalui afidavitnya telah membuktikan bahawa wujud atau terdapat keadaan khas/istimewa (special circumtances) yang memerlukan perlaksanaan segera bagi melindungi atau mengekalkan pesaka Soo Thong Liang. [37] Apa yang jelas di dalam geran daftar hakmilik hartanah-hartanah tersebut tertera nama Soo Thong Liang. Di dalam Afidavit Balasannya, Pemohon telah bermati-matian menyatakan bahawa beliau telah membawa prosiding ini sebagai wasi dan benefisiari pesaka Soo Thong Liang, bapanya yang telah meninggal dunia. Mahkamah ini mesti menyatakan di sini bahawa penelitian mendalam terhadap afidavit-afidavit yang difailkan oleh Pemohon tidak ada 32    pengataan langsung bilakah sebenarnya Soo Thong Liang ini telah meninggal dunia. Di dalam affidavit-afidavitnya Pemohon hanya semata-mata membuat pengataan bahawa berdasarkan kepada wasiat ayahnya, Soo Thong Liang, Eksibit “SKH 6”, beliau telah dilantik sebagai pentadbir pesaka Soo Thong Liang untuk semua harta tak alih Soo Thong Liang. Hanya satu perenggan sahaja yang Mahkamah temui mengenai kematian Soo Thong Liang terdapat di perenggan 10, Kandungan 30 dan ianya diturunkan di bawah ini untuk jelas kefahaman: “10. Berkenaan dengan Perenggan 11-12 Afidavit Jawapan Responden Pertama tersebut, saya dengan ini menyatakan bahawa Soo Thong Liang merupakan mendiang ayah kandung saya dan telah pun meninggal dunia dan telah melantik saya sebagai wasi dan benefisiari bagi Hartanah-Hartanah dan estet beliau melalui satu wasiat yang bertarikh 22.02.2005.” [38] Apa yang menghairankan Mahkamah ini, di dalam perenggan 10 ini Pemohon tidak menyatakan bilakah sebenarnya Soo Thong Liang ini telah meninggal dunia. Tambahan kepada itu lagi Pemohon memilih tidak mengemukakan SIJIL KEMATIAN Soo Thong Liang bagi tujuan 33    membuktikan kematiannya dan juga pengesahan bilakah tarikh kematiannya. [39] Mahkamah ini menimbulkan persoalan mengenai bilakah kematian sebenar Soo Thong Liang kerana tarikh Soo Thong Liang meninggal dunia adalah sangat penting untuk tiga perkara berikut: i. untuk menentukan siapakah yang mempunyai locus standi atau kapasiti undang-undang untuk membawa tindakan atas dasar yang ia terjejas atau dimudaratkan akibat pengeluaran geran hakmilik bagi Lot 10542. ii. pada masa Pemohon memfailkan permohonan semakan kehakiman ini pada tahun 2013, adakah Soo Thong Liang telah betul-betul meninggal dunia dan wasiat itu adalah wasiat Soo Thong Liang yang terakhir dan mutlak dan Pemohon boleh bergantung ke atasnya bagi tujuan pengeluaran geran probet kepadanya. iii. tarikh Soo Thong Liang meninggal dunia sangat penting (crucial) bagi menentukan samada wujudnya keadaan khas/istimewa yang memerlukan perlaksanaan segera bagi melindungi dan mengekalkan pesaka Soo Thong Liang, lantas Mahkamah ini boleh mengecualikan keperluan geran probet dan memberikan Pemohon suatu locus standi atau kapasiti undang-undang untuk didengar aduannya (a legal right to be heard) bagi pihak pesaka si mati. 34    [40] Perlu juga ditekankan oleh Mahkamah ini bahawa di dalam afidavit- afidavit Pemohon selain daripada tidak ada sebarang butir mengenai tarikh kematian Soo Thong Liang, afidavit-afidavit Pemohon juga tidak ada langsung menyatakan apa-apa mengenai status pengeluaran geran probet ataupun alasan-alasan kenapa suatu geran probet tidak dikeluarkan kepadanya sehingga tarikh pemfailan prosiding semakan kehakiman ini pada tahun 2013. [41] Mahkamah ini kini merujuk kepada eksibit “SKH-6” yang mana Pemohon cuba berpaut atau bergantung. Mahkamah ini telah katakan di perenggan 35 dokumen-dokumen yang dikandungkan di dalam eksibit “SKH-6”. [42] Wasiat di dalam Bahasa Inggeris telah dilaksanakan oleh Soo Thong Liang pada 22.2.2005. Soo Thong Liang adalah seorang yang tidak memahami Bahasa Inggeris, cuma faham Bahasa Cina Hokkien dan Mandarin. Manakala pengesahan wasiat telah dibuat di dalam Bahasa Cina dan ditandatangani Soo Thong Liang dalam tulisan Cina empat hari kemudian iaitu pada 26.2,2005 jam 11 malam. Memandangkan Wasiat dan Wasiat (Pengesahan) ini telah 35    ditandatangani oleh Soo Thong Liang masing-masing pada 22.2.2005 dan 26.2.2005, maka sudah semestinya beliau masih hidup pada tarikh tersebut. [43] Di dalam wasiat yang dilaksanakan pada 22.2.2005, Soo Thong Liang telah menyatakan dengan jelas hartanah-hartanah tersebut sebagai Lot 407 dan Lot 408 dan bukannya Lot 15045 dan Lot 15046. [44] Di dalam hal ini, Mahkamah ini perlu merujuk kepada Afidavit Jawapan Encik Nazrul Shukri bin Ali, Timbalan Pendaftar Hakmilik, di Pejabat Tanah dan Galian Negeri Selangor (Kandungan 36) yang mengikrarkan afidavit untuk pihak Responden-Responden bagi menentang permohonan Pemohon. Encik Nazrul telah memberikan sejarah atau kronologi pengeluaran geran-geran hakmilik-hakmilik kepada tanah-tanah terlibat. Menurutnya, pada 21.6.1986 atas kerja- kerja pengukuran yang telah dilaksanakan ke atas lot pecahan Lot 123 Pelan Akui (Certified Plan - PA 23041) PA 50918 bertarikh 22.5.87 (Eksibit NS-3, Kandungan 36) telah dikeluarkan. Melalui PA 50918 ini, Suratan Hakmilik Sementara (Borang 11A KTN) bagi 36    lot-lot baru telah dikeluarkan di mana tanah-tanah telah dipecahkan kepada Lot 379-403 & 405-408. Kemudian PA 50918 telah dipinda apabila pengukuran semula telah dibuat sekali lagi pada 5.10.1999 di mana ukuran semula (pindaan ukuran) ini telah diterjemahkan di dalam PA 81057 bertarikh 27.10.2000. Pindaan ukuran ini telah mewujudkan PT404 HSD 41821 yang dikenali sebagai Lot 15042 sebagai hakmilik muktamad (final title). Dengan pengwujudan Lot 15042, kedudukan lorong telah diwujudkan di sebelah timur Lot 15042. Lorong simpanan dianjakkan dengan kelebaran 20 kaki dan Lot 405, Lot 406, Lot 407 dan Lot 408 dipinda ukuran panjang menjadi 80 kaki. Melalui PA 81057 ini, menurut Encik Nazrul lagi, ukuran Lot 405, Lot 406, Lot 407 dan Lot 408 dikekalkan ukurannya sepertimana di dalam hakmilik sementara. Geran hakmilik mutlak telah dikeluarkan bagi lot-lot 405,406,407 dan 408 menjadi berikut: Lot 405 menjadi Lot 15043 Lot 406 menjadi Lot 15044 Lot 407 menjadi Lot 15045 Lot 407 menjadi Lot 15046 37    [45] Menurut catatan yang tertera di dalam PA 81057 bertarikh 27.10.2000, pengukuran yang telah dibuat ke atas hartanah-hartanah terlibat termasuk Lot 407 dan Lot 408 telah dilaksanakan pada tahun 2000. Pada tahun 2000, Soo Thong Liang pastinya masih hidup semasa geran hakmilik mutlak dikeluarkan kepada Lot 407 dan Lot 408 sebagai Lot 15045 dan 15046. Menurut Eksibit NS-1(a) dan Eksibit NS-1(b) yang terkandung di dalam Kandungan 36 tarikh pendaftaran yang tertera bagi lot-lot 15045 dan 15046 adalah pada 9.12.2004. Maka, daripada eksibit-eksibit NS-1(a) dan NS-1(b) yang merupakan daftar hakmilik bagi kedua-dua lot (15045 dan 15046) tersebut menunjukkan bahawa geran hakmilk mutlak bagi Lot 15045 dan Lot 15046 telah keluarkan oleh Pejabat Tanah Kuala Langat sejak daripada tahun 2004 lagi. Adalah tidak dapat dinafikan bahawa di dalam geran-geran hakmilik mutlak tersebut nama yang tertera sebagai tuanpunya berdaftar adalah SOO THONG LIANG. [46] Mahkamah ini telah menyatakan di awal penghakiman bahawa tarikh perlaksanaan wasiat oleh Soo Thong Liang adalah pada 22.2.2005 dan pada tahun 2005 beliau masih hidup. Di awal penghakiman tadi, Mahkamah ini telah juga menyatakan bahawa di dalam afidavit 38    Pemohon tidak dinyatakan bila sebenarnya Soo Thong Liang telah meninggal dunia. Tetapi apa yang jelas dan sangat nyata semasa geran hakmilik baru (geran hakmilik mutlak) dikeluarkan bagi Lot 15045 dan Lot 15046 pada tahun 2004, Soo Thong Liang masih hidup dan beliau adalah merupakan tuanpunya berdaftar hartanah- hartanah tersebut. Oleh itu, sekiranya benar ada sebarang anjakan, termakan tanah lorong atau apapun seperti yang didakwa oleh Pemohon sewajarnya/semestinya Soo Thong Liang sebagai tuanpunya berdaftar hartanah-hartanah tersebut telah mengetahuinya pada masa itu kerana geran-geran hakmilk mutlak telah dikeluarkan kepadanya. [47] Di dalam hal ini, Mahkamah ini bersetuju dengan hujahan peguam Responden-Responden bahawa menurut seksyen 89 Kanun Tanah Negara (KTN) berkenaan kemuktamatan daftar hakmilik (conclusiveness of register documents of title) bahawa pada masa itu Soo Thong Liang adalah orang yang berhak ke atas hartanah- hartanah tersebut dan bukannya Pemohon. Seksyen 89 KTN memperuntukkan berikut: “ Section 89 . Conclusiveness of register documents of title. 39    Every register document of title duly registered under this Chapter shall, subject to the provisions of this Act, be conclusive evidence- (a) that title to the land described therein is vested in the person or body for the time being named therein as proprietor; and (b) of the conditions, restrictions in interest and other provisions subject to which the land is for the time being held by that person or body, so far as the same are required by any provision of this Act to be specified to referred to in that document.” [48] Di dalam hal ini, sekiranya wujud keputusan oleh Responden Kedua, Responden Ketiga ataupun Responden Keempat di dalam pengeluaran geran hakmilik bagi Lot 15042 tersebut dan atas pengeluarannya ada pihak yang terjejas atau mendapat kemudaratan daripadanya, orang yang terjejas atau yang akan mendapat kemudaratan kerana keputusan tersebut (who is adversely affected by the decision of any public authority) adalah Soo Thong Liang sendiri. [49] Adalah menjadi dapatan Mahkamah ini bahawa di dalam kes ini Pemohon tidak boleh berlindung atas kelonggaran undang-undang keperluan ketat geran probet di atas dasar atau sandaran bahawa 40    wujudnya keadaan khas atau istimewa kes dan demi melindungi dan mengekalkan pesaka Soo Thong Liang membawa prosiding semakan kehakiman ini terhadap Responden-Responden dengan hanya bersandarkan kepada satu wasiat yang menamakan beliau sebagai pentadbir pesaka. Pemohon mestilah membuktikan dengan keterangan-keterangan dokumentar tarikh sebenarnya bapanya telah meninggal dunia bagi Mahkamah ini menentukan keupayaan undang-undang Pemohon di dalam membawa tindakan ini di samping menentukan siapakah yang sebenarnya mempunyai kapasiti undang-undang dan siapakah yang terjejas atau dimudaratkan akibat pengeluaran geran hakmilik bagi Lot 10542 (Lot 404) dikeluarkan. [50] Di dalam hal ini, adalah menjadi dapatan Mahkamah ini bahawa Pemohon sendiri telah tidak memberikan keterangan sebenar mengenai kedudukan kematian bapanya. Fakta akan kesahihan kematian dan tarikh kematian Soo Thong Liang adalah sangat penting bagi menentukan kapasiti undang-undang Pemohon dan tanpanya telah timbul keraguan ke atas pengataan dan kedudukan Pemohon sendiri sebagi wasi dan waris. Mahkamah ini 41    berpandangan bahawa kalaulah benar Soo Thong Liang telah meninggal dunia dan geran probet masih belum dikeluarkan bagi pesakanya, semestinya Pemohon sedar bahawa bukti kematian bapanya mesti dikemukakan ke Mahkamah ini. Bukti kematian ini perlu bukan sahaja untuk mengesahkan kematian dan tarikhnya tetapi juga bagi menunjukkan bahawa wasiat itu adalah wasiat terakhir apatah lagi, di dalam Wasiat (Pengesahan) bertarikh 26.2.2005 ini telah menunjukkan Soo Thong Liang telah menukar wasiatnya beberapa kali semenjak tahun 1995. Perubahan- perubahan wasiat Soo Thong Liang pada tahun-tahun 1995, 1999, 2001 dan 2004 boleh dilihat di dalam isi kandungan Wasiat (Pengesahan) yang dibuat oleh Soo Thong Liang pada 26.2.2005 tersebut. “Terjemahan WASIAT (PENGESAHAN) Saya Soo Thong Liang telah membuat satu wasiat yang baru pada 22.2.05, saya telah menulis wasiat tersebut dengan pen dan memutuskan untuk memberi kuasa kepada anak lelaki kedua saya Soo Kian Huat untuk melaksanakan pengurusan harta saya dan ia akan berkuatkuasa serta-merta. Saya sangat percaya kebolehan pengurusan anak lelaki kedua saya. Wang tunai yang ditinggalkan oleh saya akan diberikan kepada setiap anak perempuan, kerana mereka telah berumah tangga. 42    Menantu perempuan saya juga sangat mengambil berat terhadap keluarga. Yang amat saya ambil berat adalah anak perempuan saya yang ketiga (Soo Beng Eng) yang masih belum berkahwin. Orang yang diberi kuasa (Soo Kian Huat) sepatutnya menjaga dia. Hasrat saya pun telah ditunaikan, keharmonian dan kerjasama dalam keluarga. Saya amat jelas dan mengetahui bahawa segala yang diatur dan diuruskan. Dan saya pernah buat perubahan wasiat pada tahun 1995, 1999, 2001, 2004. Oleh itu, setelah saya berfikir dengan teliti saya telah berubah sekali wasiat saya. Anak lelaki sulung saya Soo Kian Teck akan dapat semua business yang saya berusaha selama ini dan dia juga akan dapat kebun yang dihadiahi oleh saya kepada emaknya dan kebun neneknya dan sebuah rumah banglo semi-d. Tuan Rumah, Ditulis oleh Soo Thong Liang 26/2/05” [51] Di samping itu, pada tahun 2013 semasa Pemohon memfailkan permohonan untuk kebenaran semakan kehakiman ini, Pemohon sendiri tidak mendeposkan apa-apa mengenai kematian Soo Thong Liang ataupun wasiat bertarikh 22.2.2005. [52] Wasiat Soo Thong Liang ini hanya timbul pada tahun 2014 apabila Pemohon memfailkan Afidavit Sokongannya bagi permohonan menjadikan Ang Lai Huat sebagai pihak ketiga dan juga pada tahun 43    2015 apabila Pemohon memfailkan Afidavit Balasannya yang diikrarkan pada 10.3.2015 (Kandungan 30) bagi perkara substantif semakan kehakiman Pemohon setelah posisinya sebagai tuanpunya/pemilik hartanah-hartanah tersebut disangkal dengan kerasnya oleh Responden-Responden. Persoalannya, adakah wasiat tersebut adalah wasiat yang terakhir dan mutlak yang Pemohon boleh bergantung ke atasnya bagi tujuan pengeluaran geran probet kepadanya bagi mentadbir pesaka Soo Thong Liang. Ini tidak terjawab kerana tidak ada pengesahan tentang kematian dan tarikh kematian Soo Thong Liang. [53] Sekali lagi penelitian ke atas wasiat tersebut mendapati bahawa Soo Thong Liang di dalam wasiatnya menyatakan berikut: “I APPOINT MY SON, SOO KIAN HUAT (NRIC No. 610801-10-5805) of No. 191, Jalan Bunga Pekan, 42700 Banting, Selangor Darul Ehsan to be Executors and Trustees of this my Will.” Tetapi di dalam Wasiat (Pengesahan) ayat yang berbeza telah digunakan Soo Thong Liang di mana beliau telah menamakan Pemohon sebagai orang yang melaksanakan harta dan 44    berkuatkuasa serta merta. Kandungan Wasiat (Pengesahan) ini adalah berbeza daripada yang dinyatakan dalam wasiat dalam Bahasa Inggeris itu. Daripada perbezaan-perbezaan ini, Mahkamah ini berpandangan bahawa hasrat Soo Thong Liang boleh dikatakan kabur dan tidak jelas di dalam menentukan siapakah yang sebenarnya yang beliau hasratkan untuk mentadbir pesakanya apabila beliau meninggal dunia. [54] Satu lagi penelitian terhadap wasiat bertarikh 22.2.2005 dan juga Wasiat (Pengesahan) bertarikh 26.2.2005 mendapati kandungan Wasiat (Pengesahan) tidak menggambarkan kandungan sebenar wasiat, malahan Mahkamah ini boleh katakan sebahagian besarnya adalah berbeza. Atas kedudukan ini juga, pengataan Pemohon yang beliau adalah wasi pesaka Soo Thong Liang adalah kurang meyakinkan, di samping orang yang dihasratkan oleh Soo Thong Liang untuk mentadbirkan keseluruhan pesakanya (harta alih, harta tak alih dan perniagaannya) selepas kematiannya. [55] Mahkamah ini juga berpandangan bahawa tarikh Soo Thong Liang meninggal dunia sangat penting (crucial) bagi menentukan samada 45    wujud atau tidak keadaan khas/istimewa yang memerlukan perlaksanaan segera bagi melindungi dan mengekalkan pesaka Soo Thong Liang, lantas Pemohon mempunyai locus standi atau kapasiti undang-undang bagi membolehkan Mahkamah ini memberikan hak kepada Pemohon untuk didengar atas aduannya (a legal right to be heard) walaupun tanpa geran probet. [56] Mahkamah ini menekankan sekali lagi bahawa di dalam afidavit Pemohon, Pemohon bukan sahaja tidak langsung menyatakan bilakah Soo Thong Liang telah meninggal dunia tetapi tidak juga mendeposkan langsung alasan-alasan kenapa geran probet tidak dipohon oleh beliau sejak kematian Soo Thong Liang, malahan tiada eksibit atau dokumen yang menunjukkan samada suatu permohonan mengenai geran probet telah difailkan atau tidak oleh Pemohon. Kalau diandaikan Soo Thong Liang telah meninggal dunia sejurus selepas perlaksanaan wasiatnya pada 22.2.2005, maka tempoh masa dari tahun 2005 sehingga 2013 adalah lebih kurang lapan (8) tahun. Adalah menjadi dapatan Mahkamah ini, di dalam keadaan sebegini, mana mungkin wujud keadaan khas atau istimewa yang memerlukan perlaksanaan segera untuk Pemohon mendapat faedah 46    daripada keperluan ketat undang-undang yang mewajibkan atau memerlukan suatu geran probet atau geran pentadbiran kuasa untuk memberi seseorang itu locus standi atau kapasiti undang-undang sedangkan (jika benar-benar Soo Thong Liang telah meninggal dunia pada tahun 2005 atau tarikh/tahun lain yang dinyatakan Pemohon) Pemohon sendiri sebenarnya tidak menunjukkan kepada Mahkamah ini bahawa beliau telah mengambil langkah-langkah untuk mentadbir pesaka Soo Thong Liang dengan segera. Tempoh masa lapan tahun adalah suatu jangka masa yang panjang dan lama untuk tidak mengambil apa-apa langkah untuk mentadbir pesaka. Kelewatan ini telah menunjukkan sikap tidak acuh dan tidak seriusnya Pemohon. Maka, adalah menjadi dapatan Mahkamah ini kalaulah benar Soo Thong Liang telah meninggal dunia sejurus selepas menandatangani Wasiat (Pengesahan) pada 26.2.2005, maka, pengecualian keperluan ketat undang-undang tidak boleh diberikan kepada Pemohon. Pemohon yang mengaku wasi atau waris kini tampil selepas tempoh lebih 8 tahun atas dasar kononnya memelihara, melindungi dan mengekalkan pesaka simati. Jelas di dalam kes ini, tidak wujud langsung keadaan khas atau istimewa untuk Mahkamah ini melonggarkan keperluan ketat undang-undang 47    bagi perwakilan pesaka Soo Thong Liang, apatah lagi pengeluaran geran hakmilk mutlak Lot 15042 telah dikeluarkan sejak tahun 2004 lagi. [57] Justeru, adalah menjadi dapatan Mahkamah ini, atas alasan locus standi atau kapasiti undang-undang sahaja, Pemohon semestinya gagal di dalam permohonannya. [58] Namun begitu, demi kesempurnaan, Mahkamah ini akan mempertimbangkan juga tiga alasan lain yang ditimbulkan oleh Responden-Responden. Alasan ii: Tindakan semakan kehakiman Pemohon ini telah difailkan di luar tempoh masa yang sah sebagaimana peruntukkan di bawah Aturan 53 Kaedah 3(6) Kaedah-kaedah Mahkamah 2012. [59] Selain daripada menghujahkan bahawa Pemohon tidak mempunyai locus standi untuk membawa prosiding ini, adalah dihujahkan juga oleh Responden-Responden bahawa tindakan semakan kehakiman 48    Pemohon ini telah difailkan di luar tempoh masa yang sah sebagaimana peruntukkan di bawah Aturan 53 Kaedah 3(6) KKM 2012 dan juga di bawah Kaedah-Kaedah Mahkamah Tinggi 1980 (KKMT 1980). [60] Aturan 53 Kaedah 3(6) Kaedah-Kaedah Mahkamah Tinggi 1980 (KKMT 1980) memperuntukkan berikut: Aturan 53 Kaedah 3(6) KKMT 1980 “Permohonan untuk kajian penghakiman hendaklah dibuat segera dan di dalam apa-apa keadaan 40 hari dari tarikh apabila alasan-alasan permohonan mula ditimbulkan atau apabila keputusan dimaklumkan kali pertama pada Pemohon dengan syarat Mahkamah boleh, setelah dipohon dan jika dianggap mempunyai alasan yang baik untuk berbuat demikian, melanjutkan jangka masa 40 hari.” [61] Apabila KKM 2012 dikuatkuasakan pada 1.8.2012, tempoh masa pemfailan sesuatu permohonan bagi semakan kehakiman telah dipinda seperti berikut: Aturan 53 Kaedah 3(6) KKM 2012 49    “suatu Permohonan bagi semakan kehakiman hendaklah dibuat segera dan dalam mana-mana hal dalam tiga bulan dari tarikh bila alasan bagi permohonan itu mula-mula berbangkit atau bila keputusan itu mula-mula diberitahu kepada Pemohon” [62] Adalah dihujahkan oleh peguam Responden-Responden, jikapun Pemohon diandaikan mempunyai kapasiti undang-undang untuk memulakan tindakan semakan kehakiman terhadap Responden- Responden, permohonan Pemohon ini telah difailkan di luar tempoh masa diperuntukkan di bawah kedua-dua Aturan 53 KKMT 1980 dan juga KKM 2012. Menurut peguam Responden-Responden, Pemohon telah mengetahui tentang perkara ini sejak daripada 9.3.2010. Ini berdasarkan kepada surat Responden Pertama (“SKH- 2”). Namun, Pemohon hanya memfailkan permohonan ini pada 21.6.2013 iaitu selepas 3 tahun dari tarikh pengetahuan tersebut. Adalah dihujahkan bagi pihak Responden Pertama bahawa tarikh bermulanya untuk Pemohon memfailkan permohonan semakan kehakiman ialah tiga bulan bermula dari tarikh surat bertarikh 24.12.2012 yang dikeluarkan oleh Pejabat Menteri Besar Selangor kepada Pemohon yang memberikan maklum balas berkenaan aduan Pemohon serta mengarahkan Pemohon membuat semakan 50    Mahkamah sekiranya wujud ketidakpuasan hati akan fakta berkenaan. (“Ekshibit-A” Afidavit Jawapan Responden Pertama - Kandungan 29). Menurut Responden lagi, Pemohon sepatutnya memfailkan tindakan ini dalam tempoh tiga bulan dari tarikh surat 24.12.2012. Walau bagaimanapun Pemohon hanya memfailkan tindakan ini pada 21.6.2013. Adalah menjadi dapatan Mahkamah ini bahawa adalah jelas dan nyata, permohonan Pemohon adalah di luar had masa 3 bulan dan tiada perlanjutan masa telah dipohon oleh Pemohon bagi kelewatan tersebut. [63] Pemohon cuba membawa permohonannya di dalam tempoh masa tiga bulan dengan menghujahkan bahawa sebagai wasi dan benefisiari pesaka Soo Thong Liang, pesaka hanya telah terjejas atau dimudaratkan dengan keputusan Responden-Responden apabila Responden-Responden telah gagal menghentikan Responden Ketujuh daripada meneruskan kerja-kerja pembinaan di atas Lot 15042 tersebut di mana Responden Ketujuh telah tidak mematuhi atau tidak menghiraukan perintah Responden Pertama melalui surat bertarikh 24.6.2013. Menurut Pemohon tarikh itu hanya bermula pada 26.3.2013. 51    [64] Pertamanya, hujahan peguam Pemohon semestinya gagal dengan dapatan Mahkamah di perenggan-perenggan mengenai tindakan pengeluaran hakmilik mutlak yang dikeluarkan pada tahun 2004 (9.12.2004). Kedua, adalah sesuatu yang tidak munasabah jika dikatakan tarikh bermula pada 26.3.2013 menurut tarikh surat Responden Pertama yang mengarahkan Responden Ketujuh untuk memberhentikan kerja-kerja pembangunan di atas Lot 15042 dan mengembalikan dan membersihkan struktur di tapak binaan sedia ada tersebut kepada keadaan yang sedia ada. Ketidakpatuhan atau kegagalan Responden Ketujuh mematuhi arahan-arahan Responden Pertama tidaklah boleh menjadi satu keputusan ataupun tinggalan di pihak berkuasa (Responden-Responden) yang mengakibatkan kemudaratan kepada Pemohon yang membolehkan relif-relif certiorari ataupun mandamus terbuka kepada Pemohon. Surat Responden Pertama bertarikh 26.3.2013 adalah semata-mata notis- notis untuk mengarahkan Responden Ketujuh untuk meroboh dan membersihkan struktur di tapak binaan sedia ada tersebut kepada keadaan yang sedia ada. Di dalam keadaan ini, Responden Pertama telah melakukan apa yang sepatutnya dilakukan oleh sesebuah Majlis Daerah yang tidak membenarkan mana-mana orang 52    meneruskan dengan kerja-kerja pembangunan bagi pelan pembangunan yang tidak diluluskan atau ditolak. Kalaupun ada pihak yang terjejas atau dimudaratkan akan perintah atau notis-notis roboh tersebut, ianya adalah Responden Ketujuh yang tidak boleh atau dihalang daripada meneruskan kerja-kerja pembangunan di atas tanahnya. Mana mungkin Responden Ketujuh yang tidak mematuhi arahan Responden Pertama tersebut, ianya dikatakan satu keputusan atau tinggalan Responden Pertama yang menjejaskan atau memudaratkan Pemohon. [65] Di dalam kes ini, pada dapatan Mahkamah kalaupun diandaikan pesaka Soo Thong Liang terjejas atau dimudaratkan di atas pengeluaran geran hakmilik Lot 15042 dan setelah mempertimbangkan masa yang diambil di dalam usaha-usaha perbincangan melalui surat-menyurat dan mesyuarat, tempoh masa tiga bulan itu sewajarnya bermula dari tarikh 24.12.2012 (surat Pejabat Menteri Besar kepada Pemohon) yang menyarankan kepada Pemohon untuk membuat semakan kehakiman sekiranya masih tidak puashati lagi. Nyata tempoh 3 bulan telahpun lama luput. Justeru, prosiding semakan kehakiman oleh Pemohon ini sememangnya 53    adalah diluar tempoh had masa yang ditetapkan oleh undang- undang. iii. Tidak ada anjakan yang berlaku [66] Peguam Responden-Reponden telah menghujahkan bahawa sebenarnya tiada anjakan yang berlaku seperti yang didakwa oleh Pemohon. Menurut Peguam Responden-Responden surat bertarikh 24.12.2012 yang dialamatkan kepada Pemohon adalah jelas. [67] Mahkamah ini telah meneliti penerangan Encik Nazrul Shukri dan bersetuju dengan peguam Responden-Responden bahawa Pelan Akui PA 50918 telah menterjemahkan dengan jelas bahawa ukuran- ukuran bagi lot-lot 405, 406, 407 and 408 adalah sepertimana yang tertera di dalam hakmilik sementara masing-masing, telah dikekalkan di dalam geran hakmilik mutlak yang baru iaitu lot-lot 15043, 15044, 15045 and 15046 menurut PA 81057 (Eksibit NS-3, Kandungan 36). Geran Hakmililk Lot No. 15042 diwujudkan bagi menggantikan Hakmilik Sementara (Qualified title PT 404 HSD 1821) di dalam memutlakkan hakmilik. Berdasarkan pemecahan Lot-lot 379-403 & 54    405-408 tersebut, Borang 11 A (Eksibit SKH 1, Kandungan 2) iaitu Suratan Hakmilik Sementara telah dikeluarkan bagi lot-lot tersebut dan tujuan Suratan Hakmilik Sementara (Qualified Title) jelas diperuntukkan di bawah seksyen 176 seperti berikut: Section 176 Purposes and effect of qualified title. (1) The purposes of qualified title are- (a) to enable land to be alienated in advance of survey; (b) to enable title to be issued in advance of survey- (i) to the individual portions into which any alienated land is to be sub-divided or partitioned pursuant to Chapter 1 or 2 of Part Nine, or (ii) to the combined area to be formed by the amalgamation of any such lands pursuant to Chapter 3 of that Part. (2) Qualified title shall confer on the proprietor the like rights in every respect as those conferred (as mentioned in section 92) by final title, save that- (a) the boundaries of the land shown on the document of title thereto shall be provisional only except so far as any of them may have been established by any earlier survey, and (b) unless otherwise provided for under this Act, the land shall not be capable of being sub-divided or partitioned, or included in any amalgamation, nor shall any building thereon be capable of subdivisions. 55    (3) The alienation of land under qualified title, and the issue of qualified title in cases of sub-division, partition and amalgamation, shall be effected in accordance with the provisions of Chapters 2 and 3 respectively; and qualified title may be converted into final title in accordance with the provisions of Chapter 4. [68] Berdasarkan seksyen 176 KTN tersebut adalah jelas bahawa Suratan Hakmlik Sementara yang dikeluarkan bagi lot-lot 407 dan 408 di eksibit “SKH-4” yang dieksibitkan oleh Pemohon telah dikeluarkan kepada Soo Thong Liang adalah berbentuk sementara “provisional” bagi maksud alienasi sebelum pengukuran sempadan tanah-tanah (maksud pengeluaran geran hakmilik mutlak). Pengukuran semula telah dibuat pada 5.10.1999 bagi maksud pengeluaran geran hakmilik mutlak bagi lot 403, 405-408 dan melalui PA 81057 bertarikh 27.10.2000, pada 9,12.2012 Suratan Hakmilik Mutlak dikeluarkan seperti berikut di mana Lot 407 menjadi Lot 15045 dan Lot 408 menjadi Lot 15046. Berdasarkan ini, Mahkamah bersetuju dengan hujahan peguam Responden-Responden bahawa sebenarnya tidak wujud istilah rizab jalan atau lorong pada tapak berkenaan. Lot 407 yang menjadi Lot 15045 dan Lot 408 yang menjadi Lot 15046 tidak mengalami apa-apa perubahan. 56    Berdasarkan keterangan dan penyataan di atas, adalah menjadi dapatan Mahkamah ini bahawa sememangnya tiada anjakan berlaku ke atas hartanah-hartanah kepunyaan Soo Thong Lai tersebut. (iv) Kalaupun berlakunya anjakan pada lorong laluan belakang hartanah Pemohon, saiz dan keluasan premis Pemohon tetap sama dan tidak berubah akibat anjakan tersebut. [69] Di dalam hal geran hakmilik mutlak ini juga, Mahkamah ini bersepandangan dengan peguam Responden-Responden bahawa memandangkan seksyen 83(1) KTN memperuntukkan bahawa pengukuran yang dinyatakan di dalam geran hakmilik mutlak adalah sepertimana plan yang diakui (certified plan), maka apabila, Suratan Hakmilik Mutlak ini telah dikeluarkan, jikapun terdapat perbezaan, kuasa untuk menentukan sempadan atau ukuran hanya terletak di atas Responden Keempat. Pemohon tidak berhak untuk menuntut atas apa-apa hak ke atas apa-apa pengukuran yang telah dibuat melalui Pelan Akui 50918 kerana pelan tersebut telah dikeluarkan melalui proses undang-undang yang ditetapkan. 57    [70] Bagi mudah kefahaman, seksyen 83 KTN diperturunkan di bawah: 83 Survey for purposes of alienation under final title. (1) Subject to sub-sections (2) and (3), where any land is surveyed in accordance with the provisions of section 396 for the purpose of its alienation under final title, the boundaries determined on the survey shall accord as nearly as may be with those indicated by the plan and description by reference to which the approval of the State Authority was given. (2) The Director of Survey and Mapping may if he thinks it necessary or desirable to do so in the circumstances of any particular case authorise the determination on any such survey of boundaries which are at variance with those indicated as aforesaid, but not so as to cause the determination of boundaries the volume enclosed by which would, in his opinion, exceed to any substantial extent that provisionally approved for alienation. (3) Where it appears to the Director of Survey and Mapping that the volume enclosed by the boundaries determined on any such survey is substantially different from that provisionally approved for alienation, he shall, before approving any plan of the land under the said section 396, refer the matter to the State Authority, and cause the boundaries to be redetermined to such extent, and in such manner, if any, as the State Authority may direct. (4) No person to whom any land is alienated under this Act shall have any claim against the State Authority on the ground that the volume in fact so alienated is smaller than that provisionally approved for alienation. 58    [71] Justeru itu, apabila geran hakmilik mutlak dikeluarkan bagi Lot 15042 ianya langsung tidak menimbulkan apa-apa kesan ataupun keadaan prasangkapun kepada tuanpunya hartanah-hartanah lot 407 dan 408. Kalaupun berlakunya anjakan pada lorong laluan belakang hartanah- hartanah Pemohon, saiz dan keluasan hartanah-hartanah tersebut tetap sama dan tidak berubah. (v) Kes ini adalah melibatkan keputusan oleh Pentadbir Tanah, sekiranya Pemohon tidak berpuashati atas keputusan Pentadbir Tanah, remedi yang sepatutnya adalah di bawah seksyen 418 Kanun Tanah Negara dan bukannya semakan kehakiman. [72] Berdasarkan dapatan-dapatan di atas, keperluan untuk mempertimbangkannya isu remedi di bawah seksyen 418 KTN yang telah dibangkitkan peguam Responden-Responden tidak perlu dipertimbangkan oleh Mahkamah ini. 59    [73] Sebagai kesimpulan, berdasarkan alasan-alasan di atas, maka adalah menjadi dapatan Mahkamah ini bahawa Pemohon telah gagal untuk membuktikan bahawa wujudnya satu keputusan yang tidak sah menurut undang-undang, tidak rasional mahupun satu keputusan yang telah dikeluarkan tanpa mengikut prosedur. (Sila lihat: MINISTER OF HOME AFFAIRS, MALAYSIA v. PERSATUAN ALIRAN KESEDARAN NEGARA [1990] 1 CLJ (Rep) 186 yang menggunakan pakai prinsip yang diusulkan oleh Lord Diplock di dalam kes Council of Civil Service Unions & Ors. v. Minister of Civil Service [1985] AC 374) [74] Mahkamah dengan ini juga memutuskan bahawa Pemohon telah gagal membuktikan kesnya bagi mendapatkan perintah-perintah/relif- relif dalam suatu prosiding untuk semakan kehakiman dan lantas menolak permohonan Pemohon dengan kos. [75] Pemohon hendaklah membayar kos sebanyak RM5000.00 kepada Responden Pertama dan kos sebanyak RM 5000.00 juga kepada Responden Kedua hingga Keenam. 60    t.t. .......................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Selangor Darul Ehsan Bertarikh 10 haribulan Julai 2015 Peguam Pemohon - Tetuan S.Y. Fu & Co. Cik Hiew Ka Yinng Peguam Responden Pertama - Tetuan Zahir Razak & Co Cik Asmawati Peguam Responden Penasihat Undang-Undang Negeri Kedua hingga Keenam - Selangor Tuan Ahmad Fuad bin Othman

Tika 2.6.0

28-81-2011

PEMOHON KESENTA DEVELOPMENT SDN BHD RESPONDEN GULA PERAK BERHAD (Company No. 8104-X)LAIN-LAINRHB BANK BERHAD (substituting INFRA PURNAMA SDN BHD pursuant to Order of Court dated 7.6.2011)

08/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=35a000c3-c9a5-491a-a759-990eea7e00e7&Inline=true

Microsoft Word - 28-81-2011 Infra Purnama Sdn Bhd Lwn Gula Perak Berhad (Lampiran X) 1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA COMPANIES WINDING-UP NO: 28-81-2011 In the matter of Section 218 (e) of the Companies Act 1965 And In the matter of Gula Perak Berhad (Company No. 8104-X) BETWEEN RHB BANK BERHAD (substituting INFRA PURNAMA SDN BHD pursuant to Order of Court dated 7.6.2011) …PETITIONER AND GULA PERAK BERHAD …RESPONDENT (Company No. 8104-X) KESENTA DEVELOPMENT SDN BHD ...APPLICANT 2 GROUNDS OF JUDGMENT (Enclosure X – Application to remove Liquidators) A. BACKGROUND FACTS [1] The Applicant (Kesenta Development Sdn Bhd) vide its Enclosure X is seeking inter-alia for the following orders: i. That leave is granted by this Court to the Applicant to file this application on behalf of and for the Respondent as the Respondent’s contributory; ii. that the appointment of Ooi Woon Chee (IC No: 610705-10- 6373) and Ong Hock An (IC No: 580913-08-5859) c/o KPMG Corporate Services Sdn Bhd (now known as KPMB Transaction and Restructuring Sdn Bhd), as liquidators by the Court be invalidated immediately; iii. that the Director of Insolvency (“DGI”) be appointed as the new liquidator. 3 [2] Essentially, Kesenta Development Sdn Bhd (Kesenta) is seeking for the removal of Liquidators. The application is made pursuant to Sections 232(1), 227(6), 231, 236(2), 266 of the Companies Act 1965 (“the Act”) and Companies (Winding –Up) Rules 1972 and/or the inherent jurisdiction of the court. [3] Before this Court proceeds to determine the merits of Kesenta’s application, for easy understanding of the matter at hand, it would be appropriate at this juncture for this Court to briefly set out the background facts of the present case leading to the filing of this Application by Kesenta. [4] Kesenta claims to hold 1,758,750 shares of the Respondent (Gula Perak Berhad). The Respondent was incorporated on 1.10.1968 as a public limited company by shares under the Companies Act 1965 (the Act). [5] The Respondent had obtained financial assistance from Syndicated Term Loan Lenders. The Syndicated Term Loan Lenders are namely; Aseambankers Malaysia, RHB Bank Berhad (“RHB”), Ambank (M) Berhad) (“Ambank”), DBS Bank LTD Cawangan Labuan (“DBS”), Alliance Merchant Bank Berhad 4 (“Alliance”), Malaysian Industrial Development Finance Berhad (“MIDF”), Sounthern Bank Berhad, Affin Bank Berhad (“Affin”) and Malayan Banking Berhad (“Maybank”){ lenders}. [6] The Respondent had also issued a Redeemable Convertible Secured Notes (“RCSN”) of 5 years with a nominal aggregate of RM288,820,655.00 under a Trust Deed dated 11.12.2002 (“Trust Deed”) between the Respondent, Universal Trustee (Malaysia) Berhad (“UTB”) and Signet Share Registration Services Sdn Bhd. [7] The RCSN was then subscribed by the lenders and offered to the public upon listing of the RCSN on BURSA Malaysia. As trustee, UTB was also appointed to act as trustee in the interest of all the RCSN holders. [8] As security for payment of the RCSN, the Respondent had executed several charges over following lands in favour of the Trustee, namely; i. Land held under Title Grant 37855 (formerly CT 15561), Lot 81 and Geran 37856 (formerly CT 15562), Lot 82 Seksyen 85, both at City of Kuala Lumpur, District of Kuala Lumpur, 5 State of Wilayah Persekutuan Kuala Lumpur (“Setapak Land”)(- Charge Presentation No. 24170/2002 dated 24.12.2002) ii. Dynawell Corporation (M) Sdn Bhd (“Dynawell”) which is a wholly owned subsidiary of the Respondent vide a Charge dated 11.2.2002 had charged its property held under title H.S.(D) 115977, P.T. 199 (formerly GRN 26826, GRN 26532, GRN 26533 and GRN 26534 (No. Lot 85, 86, 87 and 88 respectively) all situated at Seksyen 48, Mukim and District Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur which include among others the Dynasty Hotel Jalan Ipoh (“Dynasty Hotel Land”) iii. KSB Requirement & Rest Sdn Bhd (“KSB”) which is a 70% subsidiary of the Respondent vide a Charge dated 11.12.2002 had charged its property held under PN 32135, Lot 13909 (formerly H.S. (D) 2519, PT 6134 Mukim Dengkil), Bandar Baru Salak Tinggi, District of Sepang, Selangor Darul Ehsan (“Empress Hotel Land”). 6 [9] The Respondent was not able to service its syndicated term loan facility and thus has defaulted payments. This default has led to all the lenders initiating legal proceedings against the Respondent to recover the outstanding loans. A civil suit (Kuala Lumpur High Court Suit No: D5-22-1648-2005) was thereafter filed by the lenders against the Respondent and its guarantor, one Lim Sue Beng. [10] After a full trial, a judgment dated 29.10.2010 (“the said judgment”) was granted in favour of the lenders. Against the said judgment, the Respondent filed its notice of appeal to the Court of Appeal. The Court of Appeal dismissed the Respondent’s appeal on 29.3.2011. On 28.6.2011, the Federal Court dismissed the Respondent’s application for leave to appeal to the Federal Court. [11] As at 24.2.2011, under the said judgment the Respondent is still owing the lenders an outstanding sum of RM28,170,931.83. [12] On 15.3.2011, a company by the name of Infra Purnama Sdn Bhd (“Infra”) had presented a winding-up petition under section 218 of the Companies Act 1965 against the Respondent on the 7 Respondent’s inability to pay Infra a debt amounting to RM4,004,459.70. [13] A copy of the winding-up petition and the affidavit verifying petition was forwarded by Infra’s solicitors to RHB’s solicitors (Messrs. Soo Thien Ming & Nashrah) by Infra’s letter dated 29.4.2011. Messrs. Soo Thien Ming & Nashrah on behalf of RHB thereafter filed a notice of intention to appear on the petition to support the winding- up petition. [14] However, Infra’s petition was subsequently struck out by the Court when Infra applied to withdraw its petition on the ground that the Respondent had paid Infra’s outstanding debt. [15] RHB being a judgment creditor of the Respondent was however desirous to proceed with the winding up petition. RHB thereafter had applied to set aside the order striking out the winding up petition. RHB was successful in its application and by a Court order dated 7.6.2011 RHB was substituted as the petitioner in the winding-up petition against the Respondent. 8 [16] Alliance, Affin, DBS, Ambank, Maybank and CIMB Bank Berhad are Supporting Creditors to the winding-up petition. [17] On 1.3.2013, RHB’s winding up petition to wind up the Respondent was granted by the Court. Pursuant to the winding up order, Ooi Woon Chee and Ong Hock An were appointed as Liquidators to manage the affairs of the Respondent. Ong Hock An is now replaced by Mohamed Raslan Abdul Rahman. [18] Sometime in late 2013, UTB commenced foreclosure proceedings to obtain an order for sale of the Setapak Land. The other director of the Respondent, Tan Sri Elyas bin Omar (“TSE”) who is also a contributory of the Company has sought sanction from the liquidators to challenge the foreclosure proceedings in the name of the Company. [19] TSE’s basis to seek sanction from the Liquidators to challenge the foreclosure action was on the premise that there is a good prima facie defence to that action as certain investors sourced by Dato’ Rahim bin Baba (DRB) had purchased Notes from various financial institutions 9 and who claimed to hold a simple majority in value of the Notes do not wish the foreclosure proceedings to be proceeded with. [20] The Liquidators however refused to grant TSE the sanction. After the Liquidators refused sanction, TSE and three other investors (Pavilion Yields Sdn. Bhd, Greenpower Value Sdn. Bhd & Tan Sri Dato’ Lim Cheng Pow) had filed applications to the foreclosure court to intervene the proceedings as contributories of the Company to raise the proposed challenge that the investors do not wish UTB to proceed with the foreclosure proceedings. [21] On 4.3.2014, the High Court in the foreclosure proceedings dismissed TSE and the investors’ applications on the ground that the contributories did not have the locus to intervene in the proceedings. [22] This Court takes cognizance that before this Court, TSE had also filed an application to intervene this proceeding but did not proceed with his application as in August 10 2014, TSE withdrew his application. Upon TSE’s application to withdraw the application, this Court had accordingly struck out TSE’s application to intervene this proceeding with no order as to costs. [23] In managing the affairs and assets of the Respondent, Kesenta has also alleged that the Liquidators have failed to conduct the following duties: i. to call for creditors/contributories meeting i i. to lodge statement of affairs (“SOA”) with the Companies Commission Malaysia; i i i. to take into possession all books, documents and records of the Respondent; and iv. realise the assets of the Respondent. [24] Based on the above facts and allegations, Kesenta contends that the Liquidators had failed to maintain 11 impartiality and independence, to comply with statutory provisions, to recover and/or take into possession all books, documents and records of the Respondent and to carry out their duties in the best interest of the Respondent, and thus, the Liquidators are therefore not fit to continue to carry out their duties and ought to be removed. [25] Kesenta’s application is supported by an affidavit dated 18.2.2014 affirmed by Datuk Rahim bin Baba (“DRB”) who is the director of Kesenta. As mentioned earlier DRB is also the other director of the Respondent. [26] Kesenta’s application was vigorously opposed by the Liquidators and all the supporting creditors. B. PRELIMINARY OBJECTION ON THE APPLICANT’S LOCUS STANDI [27] At the outset, the Liquidators had submitted that Kesenta is only a mere contributory or shareholder of the Respondent and not a creditor of the Respondent, and therefore Kesenta has no locus standi in making this application to remove the Liquidators. 12 [28] It was contended on behalf of the Liquidators that upon the Respondent being wound up and in the state of liquidation, the Respondent is undeniably an insolvent company. According to the learned counsel for the Liquidators, at this juncture, the real stakeholders of the Respondent are the creditors and not the contributory/ies alike Kesenta. Thus, the Liquidators owe no duty to Kesenta. More so, in the present case, all assets of the Respondents, except a shop lot in Kelana Jaya), are charged in favour of UTB as trustee for the RCSN holders. It was further argued by the Liquidators that the shop lot’s estimated market value is only RM390,000.00 whereas the Respondent unsecured creditors are owed sums in excess of RM45 million. Having such a scenario, there will be an inevitable shortfall even after all the charged assets are sold off. At the end of liquidation there will be nothing left for the contributory/ies. [29] On this argument, the learned counsel for the Liquidators finds support from two English cases namely; i . Re Corbenstoke Ltd (No.2) [1990] BCLC 60 13 In an application to remove a l iquidator by a member; Harman J said this at pages 61-62:- “The applicant makes its application as a member … Since it is undoubted on all the figures at the moment that Corbenstoke is insolvent, as one would expect for a company which has been wound up by the court on a petition for a compulsory liquidation, I am of opinion that the applicant has no locus standi as a contributory to make this application. I make this ruling upon the analogy with the proposition laid down by Jessel MR over a hundred years ago in connection with contributories’ petit ions.” i i Deloitte & Touche AG –v- Johnson [2000] BCLC 485 (Privy Council) The Privy Council held that a contributory of an insolvent company has no locus to apply for the removal of a l iquidator. At pages.491-492 of the Judgment, the Privy Council held this:- “The company is insolvent. The liquidation is continuing under the supervision of the court. The only persons who could have any legitimate interest of their own in having the respondents removed from office as liquidators are the persons entitled to participate in the ultimate distribution of the company’s assets, that is to 14 say the creditors. The respondents are willing and able to continue to act, and the creditors have taken no step to remove them. The appellants are not merely strangers to the liquidation; their interests are adverse to the liquidation and the interests of the creditors. In their Lordships’ opinion, they have no legitimate interest in the indemnity of the liquidators, and are not proper persons to invoke the statutory jurisdiction of the court to remove the incumbent office-holders. The appellants’ case is not advanced by alleging that the respondents have a conflict of interest. This is not the same as impropriety or want of probity. Their Lordships observe that the expression ‘conflict of interest’ is an abbreviation for ‘conflict of interest and duty’. The rule is that a fiduciary may not without the informed consent of his principal place himself in a position where his interest may conflict with his duty to the principal. The danger is that his interest may affect him in the discharge of his duty to the prejudice of his principal. The only persons with a legitimate interest in complaining of a breach of the rule are the persons to whom the duty is owed; and they may waive the breach. The appellants do not allege that the respondents have an interest which conflicts with any duty owed to them. 15 They do not plead any such duty. They allege that the respondents have an interest which conflicts with their duty to the company and its creditors. If such a conflict exists, it is for the creditors alone to decide what if anything to do about it. As liquidators of the company the respondents are officers of the court. The court’s inherent jurisdiction to control the conduct of its own officers is beyond dispute. But it does not follow that the appellants are proper persons to invoke that jurisdiction. They say that the respondents are behaving unconscionably by reason of their conflict of interest. But they cannot say that the respondents are acting unconscionably to them.” [30] The above two cases cited by the counsel for the Liquidators are of course English cases. What then would be the underlying legal principles which are applicable in the local chapter regarding applications to remove court appointed liquidators? [31] The law in relating to removal of liquidator is very well settled. Section 232 of the Act clearly provides: 16 “232 General provisions as to liquidators (1) A liquidator appointed by the Court may resign or on cause shown be removed by the Court.” [32] In the case of Ng Yok Gee & Nor v CTI Leather Sdn Bhd ( Metro Brillant Sdn Bhd & Ors, intervener) [2006] 7 MLJ 28, Ramly Ali J (as he then was) had in his judgment clearly stated the principles of law with regards to removal of liquidator(s). At paragraphs [48], [49] and [50] of his judgment, he has said this: “[48] The principles of law is that a liquidator may be removed if it is in the interest of all those who are interested in the company being liquidated. [49] However, in the present case, the applicant has not shown that all the contributories and creditors support his application. [50] For convenience, the court, set out below the relevant legal principles applicable to an application to remove a liquidator: (a) A liquidator appointed by the court can only be removed by the court ‘on cause shown’- s 232 of Companies Act 1965. 17 (b) The court does not have an unfettered discretion as ‘cause must be shown’. The position is not the same as it is when a liquidator is first appointed and the court may choose between two or more competing candidates. (c) The normal ground for removal is that the liquidator has a personal unfitness, had failed to act impartially or is in a position where his duty and interest are in conflict. See: (i) In re Sir John Moore Gold Mining (1879) 12 Ch Div 325, p 331; (ii) Advance Housing v Newcastle Classic Developments (1994) 12 ACLC 701; and (iii) Commonwealth of Australia v O’Reilly (1984) 52 ALR 031.” [33] This Court also finds valuable guidance from Ramly J’s decision in the case of Abric Project Management & Anor v Palmshine Plaza Sdn Bhd & Anor [2007] 5 MLJ 685, wherein a contributory and a former director (Ong Say Lam) of the first respondent Company (Palmshine Plaza Sdn Bhd) had also filed an application under section 232 (1) of the Act to remove the liquidator (Lim Tian Huat) from his office and to appoint the official liquidator. In addressing this application, Ramly J has held the following: 18 “A liquidator may be removed if it can be shown that the removal would be advantageous to those interested in the assets of the company. Here however, there were no more assets left in the liquidation and therefore none could be imperilled by the continuance in office by the liquidator. Accordingly, fair play to the liquidator ought to be regarded and the liquidator be allowed to finalise the tail end of the liquidation (see para 50). “ [34] Ramly J in Abric Project Management had also re-emphasised the Court’s power to remove liquidators under section 232(1) of the Act in paragraph 14 of his judgment: “The jurisdiction of the court to remove a liquidator under s 232 of the Companies Act 1965 for ‘due cause shown’ is not to be exercised in the same way as if the power had been for the court to remove the liquidator ‘if the court shall think fit’. Some unfitness in the liquidator must be shown in order to justify his removal and the removing of him is not a matter of pure judicial discretion. That being the case the liquidator has a right to say that he is not to be removed unless due cause is shown, see in Re Sir John Moore Gold Mining Co.” [35] In relation to the Court’s power in appointing and removing the liquidators from office, the Singapore court in the case of Chua Boon Chin v JM McCormack & Ors [1979] 2 MLJ 156 has held : 19 “If the court is satisfied on the evidence before it that it is against the interest of the liquidation (all those interested in the company being liquidated), that a particular person should be made liquidator, then the court has power to remove the present liquidator and then to appoint some other person in his place.” [36] The learned author Professor Walter Woon has remarked in his book Walter Woon on Company Law Revised Third Edition (Sweet & Maxwell, Thomson Reuters) at paragraph 17.143: “A liquidator, whether appointed by the court or in a voluntary winding up, may be removed by the court on cause shown.442 Cause may be shown when there is some unfitness of the person of his personal character, or from his connection with other parties, or from the circumstances in which he is mixed up.443 Thus, for instance, if liquidator refuses to take action against miscreant directors because he is one of them444 or because they are his friends,445 impartial because of his connection with person against whom there might be pending claims, there would be cause to have him removed.446 Where it appears that the liquidator is in a position where his duty and interest conflict, the court may remove him.447” 20 [37] What is clear here is that Section 232(1) of the Act has conferred upon this Court a statutory power regarding applications to set aside any liquidator(s) who has been appointed by the Court. Therefore, when this Court is requested by any applicants to invoke this statutory power, the Applicant must demonstrate or show that the Applicant is indeed an interested party(ies) qualified to make such application be it the creditor, contributory, shareholder et cetera in which, in proving such qualification, the Applicant must prove that he has a legitimate interest in the relief sought. It is vivid that at least in the Malaysian and Singaporean chapters that, applications for removal of liquidators are open to “all those who are interested in the company” or “all those interested in the company being liquidated”. By no means at all it was limited to any classes or persons interested in the company or liquidation. [38] This Court is also of the view that the wordings of section 232(1) of the Act, section 232(1) itself did not limit or prescribe the category of persons who could seek a court order removing a liquidator. The utmost consideration the Court must consider is; whether in the interest of the liquidation, the Applicant is able to show cause that the Liquidators ought to be removed from his office. Therefore, the 21 issue of locus standi raised by the Liquidator is actually a non- issue. The question remained to be considered by this Court is, whether Kesenta is able to show any cause(s) to compel this Court to order the removal of the Liquidators. C. THE APPLICANT HAS FAILED TO SHOW ANY CAUSE TO JUSTIFY THE REMOVAL OF LIQUIDATORS Alleged Failure to maintain impartiality and independence [39] It is not in dispute that Kesenta’s main grievance against the Liquidators is the Liquidators’ refusal to grant sanction to TSE to challenge the foreclosure proceedings in the name of the Respondent. [40] The question now would be, is the Liquidators’ Refusal to give consent to TSE to oppose foreclosure proceedings commenced by UTB in respect of charged Setapak land justified? 22 [41] It is settled law that for a liquidator to decide whether or not to sanction proceedings by a creditor or director in the name of the company, one of the factors which the liquidator must consider and satisfy himself is that the action is not vexatious or merely oppressive. ( See: Aliprandi v Griffith Vintners Pty Ltd (in liq) and Another 6 ACSR 250 at 252 - the Privy Council in Lloyd- Owen at 276 - “ A judge in winding up is the custodian of the interests of every class affected by the l iquidation. It is his duty… to see to it that all assets of the company are brought into the winding up. In authorising proceedings, especially if they may or will involve some drain upon the assets, he must satisfy himself as to their probable success; where… they involve no possible charge on assets, he will nevertheless be careful to see that any action taken in the company’s name under his authority is not vexatious or merely oppressive.” (See also Carpenter v Pioneer Park Pty Ltd 65 ACSR 564 at p. 571-57) [42] The learned counsel for the liquidators contended that before the liquidators have decided against granting sanction to TSE to oppose the foreclosure proceedings by UTB, the liquidators have duly performed their duties as outlined and prescribed by the law. The Liquidators contended that they have duly considered and evaluated 23 whether or not the action under the name of the Respondent is either vexations or merely oppressive. [43] This Court agrees with the contention by the learned counsel for the Liquidators that based on the documentary evidences exhibited by the Liquidators vide affidavits filed to oppose Kesenta’s application, it is sufficiently telling that the Liquidators have appropriately and lawfully denied sanction to TSE. This is because TSE has clearly failed to satisfy and conform to the requirements to justify a granting of sanction, in that, TSE has ultimately failed to prove any good defence to oppose the foreclosure proceedings. [44] The Liquidators’ refusal to grant TSE, essentially, was made on the legal advice given by Messrs Skrine & Co who is the solicitors appointed by the Liquidators. TSE in applying for sanction had attempted to raise an issue that the Respondent has good defence to oppose the foreclosure proceeding commenced by UTB. This supposed good defence is that, some investors of the Respondent who have purchased notes from numerous 24 financial institutions, claiming simple majority (from the aspect of holdings of notes) are not in favour and are not desirous of UTB proceeding with the said foreclosure proceedings. Nonetheless, Skrine has given their views on the law under the said Trust Deed, that in order to compel UTB to cease the foreclosure proceedings, an ordinary resolution is far from sufficient. Further according to Skrine, based on the said Trust Deed, UTB can be compelled to cease the foreclosure proceedings only vide a special resolution. A decision by a simple majority as claimed by TSE is far from anything that may compel TSE from ceasing the foreclosure proceedings which has already been commenced. [45] With regards to the defence raised by TSE, the Liquidators from the very outset had requested TSE to show to the Liquidators that there is a prima facie defence against the foreclosure proceedings. In furtherance to the Liquidators’ request, the Liquidators had written to TSE seeking from him inter alia a detailed opinion on the merits of the proposed defence from a legal firm of good reputation (which is not conflicted) and 25 had suggested the names of various firms of good repute. TSE then had responded to say that all those firms suggested by the Liquidators were in fact conflicted. TSE had informed the Liquidators that he intends to seek legal opinion from Messrs Brendan Siva to which the Liquidators agreed. The Liquidators had also asked the TSE’s appointed solicitors to address the Liquidators on the following points: (a) Under the Trust Deed, only those RSCN Holders whose names appear in the Register of Depositors are entitled to be recognised. The appointed solicitors is required to prove the names of the new investors referred to by TSE and the grounds they are entitled to be recognised as RCSN Holders. If these so called new investors are entitled to be recognised under the Trust Deed and who claimed that they hold a simple majority in terms of the value of notes holding, the next question to be addressed by the appointed solicitors is; whether a simple majority of the Note Holders can compel the Trustee to withdraw the foreclosure proceedings. 26 (b) to show or to prove to the Liquidators by way documentary evidence in particular the Trust Deed; whether there is any provision under the Trust Deed allowing a simple majority of the Note Holders to give such instructions to the Trustee Consequent to this request, the Liquidators never received any response from TSE or his appointed solicitors. Only at the very last minute that TSE’s appointed solicitors, Chiang Chambers (not Messrs Brendan Siva) has furnished their latent response vide their letter dated 15.4.2014 which was exactly a meagre one day before the trial date for the foreclosure action. This letter dated 15.4.2014 has only provided a very brief opinion without any legal opinion or views on all the queries raised by the Liquidators’ solicitors to TSE’s appointed solicitors. On the same day, the Liquidators have informed Chiang Chambers the grounds in which the Liquidators have denied sanction to TSE. Chiang Chambers has not responded to this. 27 [46] Based on the above chronology, this Court is of the considered view that there are no reasons at all for this Court to disagree with the Liquidators’ decision to deny granting of sanction to TSE to oppose UTB’s foreclosure proceedings. [47] Here, TSE or his appointed solicitors have not at all given any response to the queries raised to them by the Liquidators. The Liquidators have received legal advice that the said Trust Deed requires a special resolution to compel UTB to cease its foreclosure proceedings. TSE or his appointed solicitors have failed and refused to even respond to this issue. TSE has not shown or substantiated their assertion that a simple majority of supposed new investors is enough to compel UTB to cease their foreclosure proceedings. TSE’s contention is utterly baseless without any legal merits. [48] As rightly done, the Liquidators have requested TSE to obtain detailed opinion from his appointed solicitors on the queries raised. TSE’s and TSE’s appointed solicitor’s failure to give their detailed opinion when requested is 28 verily telling that, it is more probable than not that the defence purported by TSE is not supported by any legal basis. [49] It is vividly clear here that TSE has utterly failed to demonstrate that there was a prima facie defence or valid against the foreclosure proceedings merely because a simple majority of the new investors are opposing to the foreclosure proceedings and do not wish UTB( Trustee) to proceed with the sale of the Setapak Land vide public auction. [50] In these foregoing circumstances, the granting of sanction to TSE to oppose the foreclosure proceedings without any prima facie defence, would only unduly delay this proceedings and would tantamount to an abuse of process of this Court. [51] It is this Court’s finding that the refusal of the Liquidators to grant sanction to TSE was indeed a just and appropriate decision squarely within the confines of the law and the Liquidators cannot be deemed to have 29 conducted themselves unfairly, with bias or inappropriately. Alleged Failure to call for creditors/contributories meeting [52] A company by the name Town Hang Securities Co Ltd (“Town Hang”), another contributory of the Respondent has made a request to the Liquidators to hold creditors’/contributories’ meetings. The Liquidators did not accede to this request primarily on the ground that the financial position of the Respondent would not permit such meeting to be held. [53] In the present case, Town Hang itself is the debtor to the Respondent. Previously, Town Hang had failed in its bid to apply for a restraining order under section 176 of the Act on behalf of the Company. Town Hang’s application was dismissed by the Court and Town Hang was ordered to pay the Liquidators RM20,000.00 as costs. Despite numerous requests and reminders from the Liquidators, 30 Town Hang has yet to pay the Liquidators the sum of RM20,000.00. [54] With regards to convening a contributories’ meeting, reference must be made to section 287 of the Act. Section 287 of the Act provides as follows:- “Unless expressly directed to do so by the Official Receiver, a liquidator shall not be liable to incur any expense in relation to the winding up of a company unless there are sufficient available assets. The Official Receiver may on the application of a creditor or a contributory direct a liquidator to incur a particular expense on condition that the creditor or contributory indemnifies the liquidator in respect of the recovery of the amount expended and if the Official Receiver so directs gives such security to secure the amount of the indemnity as the Official Receiver thinks reasonable.”(Emphasis added) 31 [55] Section 287 of the Act clearly stipulates that a l iquidator shall not be liable to incur any expense in relation to the winding up of a company unless there are sufficient available assets. The question then would be; is the Respondent’s financial standings be able to cover the expenses to hold such creditors/contributories meeting? [56] According to the Liquidators, even until now they have yet to receive the Respondent’s Company Share Register from the Registrar Company, Tricor Investor Services Sdn Bhd (“Tricor”). The Respondent stil l owes as much as RM40,000.00 to Tricor. The undisputable fact is that the Respondent is a public listed company which definitely has more than a thousand shareholders. With the insolvent state of the Respondent as well as the overdue debts to Tricor, it is clear that the Respondent is in a state of financial ruin whereby the total cash in hand is extremely limited. In fact, the only asset owned by the Respondent which is not charged is the shop lot in Kelana Jaya which stil l has yet been able to be disposed of. And even the market value of this shop lot is nowhere near the massive magnitude of the Respondent’s total 32 debts. In order to conduct a creditors/contributories meeting, the Liquidators must first obtain the Company Share Register from Tricor and for Tricor to release this Share Register, the Respondent must first pay up the debt to Tricor. As a Public Listed company, the holding of this meeting would definitely incur a massive expense. This Court agrees with the Liquidators that instead of obtaining the Share Register vide paying the debts to Tricor just for the sake of holding this meeting it is instead more beneficial to use the already limited monies for more beneficial matters. This is especially considering that it is obvious that none of the contributories or shareholders would be paid anything considering there is absolutely nothing left for the Respondent’s contributories and shareholders. The liquidation and disposal of all of the Respondent’s assets can hardly even satisfy all of the Respondent’s debts. The meeting requested by Town Hang would be reduced to a complete waste, devoid of any meaningful pursuit. [57] It must be noted Town Hang stil l owes the Respondent RM20,000.00. This Court agrees with the Liquidators that 33 in making such requests, if Town Hang is bona fide in its action, Town Hang should pay the RM20,000.00 to improve the Respondent’s financial state. However, Town Hang has yet to pay despite numerous demands and reminders. [58] Kesenta attempted to question the weak financial state of the Respondent by raising an issue regarding the Liquidators’ Application on behalf of the Respondent in Seremban High Court to remove a Provisional Liquidator, Dynawell (Respondent’s subsidiary company). With regards to this bare allegation, this Court agrees with the learned counsel of the Liquidators that this assertion cannot be taken into account as evidence as Kesenta itself has no personal knowledge of anything regarding the real facts behind the Application at the Seremban High Court. In fact, Kesenta has not adduced any proof or evidence whatsoever in support of this bare assertion. [59] Hence, it is this Court’s judgment that it is appropriate and legally justified that the Liquidators would decide not to hold the creditors/contributories meeting on the ground 34 that the Respondent lacks the necessary funds to hold such meeting as well as the meeting is wasteful devoid of any meaningful pursuit. The Liquidators cannot be deemed to have failed to abide by the law. This is obviously not any valid ground to remove the Liquidators. Alleged failure to lodge statement of affairs (“SOA”) with the Companies Commission Malaysia [60] Kesenta had fallibly attempted to place the responsibility of submitting the Respondent’s Statement of Affairs (“SOA”) with the Companies Commission Malaysia (“CCM”) on the Liquidators. However, it is clear that by law, the responsibility to submit the company’s SOA rests on the Respondent’s directors when the Respondent was wound up on 1.3.2013. This is clearly prescribed under Section 234 of the Act: “234. Statement of company’s affairs to be submitted to Official Receiver. 35 (1) There shall be made out and verif ied in the prescribed form and manner and submitted to the Official Receiver or the l iquidator, as the case requires, a statement as to the affairs of the company as at the date of the winding up order showing – (a) the particulars of i ts assets, debts and l iabil i t ies; (b) the names and addresses of its creditors; (c) the securi ties held by them respectively; (d) the dates when the securi t ies were respectively given; and (e) such further information as is prescribed or as the Official Receiver or the l iquidator requires. (2) The statement shall be submitted by one or more of the persons who are at the date of the winding up orders directors, and by the secretary of the company , or by such of the persons hereinafter mentioned as the Official Receiver or the l iquidator, subject to the direction of the Court, requires, that is to say, persons – (a) who are or have been officers of the company; (b) who have been part in the formation of the company, i t any time within one year before the date of the winding up order; or 36 (c) who are or have been within that period off icers of or in the employment of a corporation which is, or within that period was, an officer of the company to which the statement relates.” [61] Pursuant to Section 234 of the Act, it is the duty of the directors of the Company to submit the SOA to the liquidators showing the assets and liabilities of the Company as at the date of the winding up order which in this case was 1.3.2013. [62] In the present case, at the relevant time, the 2 directors of the Respondent were DRB and TSE. Both DRB and TSE had never submitted to the liquidators any SOA as at the winding up date. [63] As a matter of fact, the Liquidators upon the Respondent being wound up had requested the directors to submit to them the SOA of the Respondent. However, the directors had only submitted the SOA dated 11.5.2011 which was the SOA that they have prepared at the time when the Respondent proposed to go into creditors’ voluntary 37 liquidation (which was the SOA BEFORE the Respondent was wound up). This SOA dated 11.5.2011 is not the proper SOA in compliance with Section 234 of the Act. [64] Pursuant to section 234 of the Act, the Respondent’s directors, namely TSE and DRB are duty bound to submit the SOA to the liquidators. And this Court fully agrees with the Liquidators that since DRB was one of the directors of the Respondent, DRB is directly responsible for the fact that no proper SOA was submitted to the liquidators in compliance with section 234 of the Act. Here, DRB would have no basis to complain that the Liquidators did not submit the SOA to the CCM. Alleged failure to take into possession all books, documents and records of the Company [65] Kesenta has alleged that the liquidators have failed to take into possession all the books documents and records presumably of the Respondent. 38 [66] In the present case, in one of the Liquidators’ affidavit, Mr Ooi Woon Chee has averred that he has attempted to gain control and possession of all the books and records of the Respondent since he was appointed as one of the provisional liquidators (“PL”) of the Respondent on 29.6.2011 and his representatives had met with DRB on one occasion. But, the Liquidators were not able to meet with TSE as DRB informed the Liquidators that TSE was not well. The only person who had knowledge of the affairs of the Company was Madam Lim Bee Khim, who was the company secretary. [67] DRB even though he was one of the director of the Respondent, appears as though that he does not know much about the affairs of the Company and he himself did not assist in getting possession of the books and records of the Company for the Provisional Liquidators or the Liquidators. [68] This Court has scrutinised the correspondences exhibited by the Liquidators in exhibit “A-5”, Enclosure 3. Exhibit A-5 are copies of the correspondences between the 39 Liquidators and the directors/ Lim Bee Khim in relation to the affairs of the Company which shows that it was DRB and his co-director TSE who did not give possession of the complete books and records to the PL and the liquidators. The Correspondences show that requests for books and records of the Respondent has duly been sent to the company directors and secretary since the time the same Liquidators were appointed as Provisional Liquidators through letters dated 1.7.2011, followed by letters dated 7.7.2011, 11.7.2011, 20.7.2011 and 21.7.2011. In fact, on 16.4.2013, the Liquidators have written to the Respondent’s directors and secretary that the Respondent even til l the year 2013 has stil l failed to submit the company’s proper and complete books and records. For ease of reference the letter dated 16.4.2013 is reproduced: 40 41 42 [69] It is this Court’s finding that from the documentary evidences produced before it, the failure to take possession of books, documents and records of the Respondent was not due to any lack of effort on the part of the Liquidators but due to the refusal and lackadaisical conducts of the directors who were not keen to forward all the book and records of the Respondent to the Liquidators. [70] In this present application, DRB being one of the Respondent’s director is duty bound to ensure that all the books and records are forwarded to the liquidators or the liquidators would be able take possession of all the books and records. [71] Now, DRB, being Kesenta’s director and also the Respondent’s director, has attempted to put the blame on the Liquidators when in real respect, it is his own fault as the Respondent’s director that the Respondent has yet to furnish the complete set of books and records of the Company to the Liquidators. Instead the fault of the 43 failure is attributable to the directors of the Respondent, being DRB and TSE themselves. The Liquidators cannot be faulted on this matter. Thus, the lame ground raised by Kesenta is clearly baseless and devoid of any merits. Alleged failure to realise the assets of the Company [72] Kesenta has alleged that the Liquidators had failed to realise the assets of the Respondent expeditiously and economical namely; to complete the sales of Setapak Land, the Dynasty Land and the Empress Hotel. [73] It is a clear fact that in respect of Setapak Land, the Dynasty Land and the Empress Hotel Land (“assets”), the Respondent had executed the charges over these assets in favour of UTB as security for the payment of the RCSN. [74] It was Kesenta’s averment that according to Exhibits “KDB-4” and “KDB-5” exhibited by DRB in his supporting affidavit, the Liquidators have allegedly failed to realise the sale of the said assets mentioned in these exhibits. These exhibits are the Respondent’s KLSE announcement regarding sale of the said 44 assets. For ease of reference the relevant portions of the announcement are reproduced below; Setapak Land “The Board of Directors of GPB wishes to announce that that GPB has entered into Sales & Purchase Agreements (“SPAs”) on 25 June 2010 with Perth International Limited (Co. no. 1433569), a company incorporated in Hong Kong (“the Purchaser”) for the disposal of: (i) the development land forming Parent Lot 24 and of Parent Lot 458 both within Mukim of Batang Berjuntai, District of Kuala Selangor, Selangor Darul Ehsan measuring approximately 97.58 hectares (“the Said BB Property”) for total cash consideration of RM19,000,000,00. (ii) the development land forming Lots 81 and 82 and Lots 1140 and 3767 within Mukim of Setapak, District of Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur measuring approximately 118,451 square feet (“the Said Property”) for a total cash consideration of RM6,100,000.00” Dynasty land: “GULA PERAK BERHAD (“GPB” or the “Company”) wishes to announce that Dynawell Corporation (M) Sdn Bhd (“Dynawell”), a wholly owned subsidiary of GPB has entered into a Sale & Purchase Agreement (“SPA”) on 28 June 45 2010 with Time Glory Investment Limited (Co no 146373), a company incorporated in Hong Kong (“the Purchaser”), for the disposal of: ● The Dynasty Hotel, Kuala Lumpur, Located at Jalan Ipoh, Erected on Lot Nos 85-88, Held Under Title Nos. Geran 26826, 26532 – 26534 (Formerly CT Nos 15199 – 15202) Respectively, All in Section 48, Town and District of Kuala Lumpur, State of Wilayah Persekutuan, Kuala Lumpur (“the Said Dynasty Hotel”) for a total cash consideration of RM151,000,000,00;” 46 [75] This Court fully agrees with the Liquidators that the allegations raised by Kesenta on this matter are totally unwarranted. DRB being one of the directors of the Respondent surely must be fully aware of the details of the announcement made by the Respondent. It is obvious from the said announcements that the Respondent is not even the vendors of Dynasty and Empress Hotels and thus the hotels are not the property or assets of the Respondent. The Liquidators are appointed as Liquidators of the Respondent to manage the Respondent’s affairs and assets. Considering that both of the hotels are obviously not the assets of the Respondent, the Liquidators are not in any position to complete the sale. The allegations by Kesenta against the Liquidators are totally baseless and out of line. [76] With respect of the sale of the Setapak Property, Skrine, the solicitors for the Liquidators themselves cannot ascertain the status of the Sale and Purchase Agreement of the land. Skrine had then by a letter dated 8.4.2013 (Exhibit “A-6”) had written to the former solicitors of the Respondent Faizah Lim & Associates to enquire the 47 same. But Faizah, Lim & Associate has never responded to the letter and enquiry. Having no information on such sale, this Court opines that it is impossible for the Liquidators to take any steps with regard to the sale of the Setapak land. [77] This Court is also in agreement with the Liquidators' contention that it would have been impossible for the Liquidators to complete the sale of the Setapak Property to Perth International at RM6.1 million considering the overwhelming fact that UTB had set the redemption sum for the said property in the massive region of RM327 mill ion which was the amount owing to UTB. [78] The only unencumbered asset owned by the Respondent is the shop lot in Kelana Jaya. In respect of this shop lot, the Liquidators are in the process of disposing the shop lot which only has an estimated value of RM390,000.00. D. COURT’S DIRECTIONS [79] Based on the above aforementioned reasons and deliberations before this Court, it is the judgment of this 48 Court that Kesenta’s application is devoid of any merit or basis and Kesenta has miserably failed to show any cause to justify why the Liquidators ought to be removed under section 232(1) of the Act. Therefore, this Court hereby orders that the application be dismissed with costs. On the issue of costs [80] This Court hereby orders that Kesenta to pay the Liquidators RM7000.00 in costs and RHB (the petitioner) costs of RM5000.00. Kesenta is also ordered to pay a global sum of RM5000.00 in costs to all the supporting creditors. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 8th July, 2015 49 For the Applicant - Messrs S. Ravenesan Mr. Ravenesan Sivanesan For the Liquidators - Messrs Skrine & Co. Mrs Wong Chee Lin For the Supporting Creditors i.Alliance Investment Bank Berhad - Messrs Soo Thien Meng & Nashrah Mrs Lua Ai Siew ii.Malayan Banking Berhad, Affin Bank - Messrs Shook Lin & Bok Berhad, DBS Bank Limited, Mrs Ng Hooi Huang CIMB Bank Berhad

Tika 2.6.0

25-2-01/2014

PEMOHON THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD RESPONDEN 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. GILBARD HONEY-JONES

07/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=93adc03b-702b-467b-a822-a9a5577e1ebd&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA APPLICATION FOR JUDICIAL REVIEW NO: 25-2-01/2014 In the matter of a decision by the Minister of Human Resources, Malaysia which was stated in a letter from the office of the Ministry of Human Resources dated 28.10.2013 which was received on 1.11.2013; And In the matter of an application for an order of certiorari and prohibitory order; And In the matter of Section 20 of the Industrial Relations Act 1967 (Act 177); And In the matter of Order 53 Rules of Court 2012 BETWEEN THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD … APPLICANT AND 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. GILBARD HONEY-JONES ... RESPONDENTS GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] This is an application by the Applicant (The British School of Kuala Lumpur Sdn Bhd) for judicial review pursuant to Order 53 rule 3 of the Rules of Court 2012 (ROC 2012). The Applicant has sought from this Court inter alia for an order of Certiorari and an order for Prohibition against the 1st Respondent, the Minister of Human Resources (“Minister”) in referring (“Reference”) the representation (“Representation”) made by the 3rd Respondent (Gilbard Honey -Jones) who is the ex-employee (“Employee”) of the Applicant to the Industrial Court which is the 2nd Respondent for an Award or Decision. [2] Succinctly put, it is the Applicant’s case that the Minister had misdirected his discretion under section 20 of the Industrial Relations Act 1967 (the Act) in making such Reference regarding a Representation which in essence allegedly is not a case fit to be referred to the Industrial Court. [3] The Applicant is a private co-educational international school which facilitates education based on the curriculum of England and Whales. [4] The Employee commenced his employment as a Headteacher with the Applicant on 1.2.2009. (See Exhibit DB-1 of the Applicant’s Affidavit in Support (“AIS”)). [5] Thereafter, concerns and issues arose regarding the Employee’s alleged conduct in his performance of his duties as Headteacher of the Applicant and the non-tenability of continuing with his appointment. Evidence of which has been categorically appended in Exhibit DB-A-1 of the Applicant’s Affidavit in Reply against the Minister’s Affidavit in Reply. (There are contentions made against these evidences by the Employee. This Court shall delve into these contentions later in this judgment) [6] Entailing his poor performance and misconducts, a meeting was held on 9.11.2012 between the Employee and 3 directors of the Applicant namely, Stewart Fry, Darren brown and John Ordovas (“First Meeting”). In the same meeting, the Employee was informed of the fact that the School see it fit not to renew his contract upon expiration the following year in April 2014. The Employee was informed and has discussed a prospect of the Employee taking up the position of Group Advisory Board Chairman instead of his previous tenure as the Applicant’s Headteacher (“Prospect”). [7] Following the First Meeting, Stewart Fry sent an email of 13.11.2012 to the Employee in reference to their discussion during the First meeting regarding the Employee’s Prospect. (See Exhibit DB-2 of the AIS) [8] In response to the email above, the Employee sent an email of 29.11.2012 mainly expressing of his shock at the Board’s decision to not renew his contract and also to the alleged fact that the Applicant has never advised himself of the array of alleged misconducts (See Exhibit DB-3 of AIS): “It was a pity that I was not advised of your discontent and the bombshell of non-contract renewal came as quite a shock.” [9] In the same e-mail, the Employee requested for time to consider the Prospect at least after the Christmas holidays. [10] In the midst of the Employee’s consideration, the Applicant took steps to find and appoint a new Headteacher, one Janet Brock in the Employee’s stead. Janet Brock was appointed vide a Fixed Term Employment Agreement dated 29.1.2013 which stated that she shall assume her duties as Headteacher on 1.3.2013. (See Exhibit DB-7 of the AIS) [11] All throughout Janet’s candidacy to her appointment, the Applicant and the Employee were at loggerheads and were stagnated at an impasse. In efforts to break the impasse, a discussion was held between the Applicant and the Employee on 26.2.2013. It entails that the parties were not able to reach to a mutual cessation of the Employee’s tenure. Thus, the Applicant hinging on Clause 8.4 of the Employment Contract decided to terminate the Employee’s employment on the reason of the Employee’s alleged misconducts. Here, the Applicant sought to exercise its alleged managerial prerogative as an employer. In the same meeting, the Applicant issued a Termination Letter dated 26.2.2013 which contains terms of mutual separation vide the Employee’s cessation from employment with the Applicant. (See Exhibit DB-8 of the AIS for the Termination Letter). [12] Clause 8.4 of the Employment Contract reads: “The School may terminate the Contract immediately and with no further remuneration in the event of serious misconduct on behalf of the Employee. Cases of serious misconduct include but are not limited to: - Conduct set out in the School’s disciplinary procedures which warrants dismissal without notice - Any serious act of negligence or neglect of duty” [13] In response to the Termination Letter, the Employee vide his solicitors has rejected the terms of mutual separation in the Termination Letter and states that he will resume his duties on 10.3.2013. (See Exhibit DB-9 of the AIS for this letter dated 1.3.2013) [14] Consequent to the Employee’s termination, the Employee proceeded to file a representation at the Department of Human Resources. The Applicant then was informed through a letter dated 15.5.2013 that it is required to attend a conciliatory meeting (“conciliatory meeting”) at the Department of Human Resources on 29.5.2013. However, the conciliatory meeting had only taken place on 4.7.2013. (See Exhibit DB-45 of the AIS for the 15.5.2013 letter) [15] The Applicant had furnished the full extent of the facts and circumstances of the Employee’s misconducts during the conciliatory meeting. The Employee has only denied the allegations forwarded by the Applicant. The conciliatory meeting was dismissed without any success of reaching a mutual settlement or separation between the parties. [16] Following the conciliatory meeting, the Applicant has issued the Employer’s Information Form (“Information Form”) to the Department of Human Resources on 19.7.2013. The same Information Form succinctly sets out all the facts and misconducts leading to the Employee’s termination. (See Exhibit DB-46 of the AIS). [17] Furthermore, the Applicant has issued its own written representation (“Written Representation”) on 31.7.2013 enclosing all of the relevant and contemporaneous documents to prove the Employee’s misconducts leading to his termination. (See Exhibit DB-A-1 of the Applicant’s Affidavit in reply for the written representation and all of the appended documents). [18] The same Written Representation has extensively set out the facts and circumstances of the Employee’s misconducts leading up to the Employee’s Termination. The mass of the Employee’s misconducts include inter alia: a. Appointing a Deputy Headteacher without the joint approval of board members; b. Neglecting to carry out a police and reference checks (in appointment process) and to take remedial steps; c. Neglecting to organize and to oversee staff appraisals annually; d. Dismissing staff without the board’s approval and/or legal advice; e. Discriminatory exercise of disciplinary authority; f. Failing to take care of health and welfare of students and staff; and g. Failure in communication and dealings with parents of the students regarding the Telekom Towers, change in school lunch menu and scholarship application. [19] The Director General of Industrial Relations (“DGIR”) has forwarded his notification and report dated 30.8.2013 to the Industrial Relations Headquarters in Putrajaya for the Minister’s consideration. (See Exhibit DB-48 of the AIS). [20] The Minister accordingly has averred in his Affidavit in Reply in paragraphs 25 and 27 that he has duly received and considered the Information Form and Written Representation. [21] Ensuing from the above, the Minister has issued a letter dated 28.10.2013 which was received by the Applicant on 1.11.2013 informing of his decision to refer the Employee’s representation to the Industrial Court (“Reference”). (See Exhibit DB-49 of the AIS) [22] The Applicant’s case is against this Reference. The Applicant’s case can be summarised in the following manner: [23] The Minister had misdirected himself in inappropriately exercising his discretion under Section 20 of the Act on the grounds that: i. The Minister had failed to properly appreciate the factual matrix of the case. In that the Minister had failed to consider facts which he ought to consider and had considered matters which he ought not to consider; ii. The Minister had failed to appropriately find that there was no serious question of law or fact of whether the Employee was terminated with just cause; iii. The Minister had failed to identify that the case to be a case unfit to be referred to the Industrial Court as it goes against the purpose and the policy of the Act itself. HAVE THE MINISTER PROPERLY APPRECIATE THE FULL FACTUAL MATRIX OF THE CASE? [24] Now, it is plain to this Court that the 2nd and 3rd grounds of contention of the Applicant can only be answered if the 1st ground of contention has been determined. Thus, this Court shall first delve into the underlying facts of this case and identify if there were indeed any misdirection on the part of the Minister in exercising his discretion under section 20(1) of the Act in referring the representation to the Industrial Court for adjudication. [25] There is little dispute on the underlying law and principle governing the Minister’s duty to examine and appreciate the full facts of the representations and report he received from the Director General of Industrial Relations regarding the dispute and the conduct of the conciliation meetings. [26] Generally in exercising the Court’s discretion in judicial reviews this Court is guided by the decision of the Court of Appeal in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377: “It has been accepted by the courts too that…the court could still go behind the decision, where the allegations raised were to the effect that the decision maker had transgressed principles of procedural impropriety, illegality or irrationality (may be even proportionality) in arriving at the impugned decision. In those circumstances, it was open to the court to extend its scrutiny into the area of the merits or justification behind that decision.” [27] The Applicant’s allegation is exactly to that effect. Thus, it is fitting that the Court delves into the merits or justification of the Minister’s decision in the present case. [28] This Court is guided by the High Court decision in Chan Soon Lee v YB Menteri Sumber Manusia Malaysia & Anor [1998] 5 CLJ 133 at page 160: “Just as a workman is entitled to the said protection, similarly the law recognises the right of an employer to dismiss his workman with just cause or excuse. The minister when acting under s. 20(3) of the Act has to see that these two distinct rights are safeguarded based on the facts and material placed before him in the notification made to him by the director-general under s. 20(2) of the Act…the role of the minister is to ascertain whether on the facts and material placed before him, the representation raises serious questions of fact or of law calling for adjudication by the Industrial Court”(emphasis added) [29] On the same principle, the Employee in its submissions has referred to the Federal Court decision in Exxon Chemical (Malaysia) Sdn Bhd v Menteri Sumber Manusia Malaysia & ors [2007] 2 CLJ 97: “It meant that there should be an objective examination of the factual matrix available before the Minister in order to ascertain whether a reasonable person, in similar circumstances, would have arrived at the decision which the Minister had done.”(Emphasis added) [30] It is also a proof of a misdirection of a Minister’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 CLJ (Rep) 183 : “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have taken into account or vice versa; or has otherwise gone wrong in law”(emphasis added) [31] It is also the law that the Minister should be apprised of all of the facts of the dispute from the DGIR and can only refer to the facts raised to the DGIR in his report to the Minister. The role of the DGIR’s report is verily important in the proper exercise of the Minister’s discretion under Section 20 of the Act. This Court is guided by the case of Abdullah Azizi Abd Hamid v Menteri Sumber Manusia & Anor [1998] 2 CLJ 297 at pages 301 to 302: “He relies purely on the notification made to him by the Director General under sub-s. (2)…With the notification he would have before him naturally the report of the proceedings including whatever evidence both oral and documentary presented therein. Upon all these matters placed before him, the Minister would make a study and decide as to whether the representation is frivolous or vexatious. He is not allowed to consider other irrelevant matters not placed before him by the Director General. That being the case, what took place before the Director General during conciliation proceedings is crucial.”(emphasis added) The Minister has correctly considered the absence of Disciplinary Actions on all of the alleged misconducts of the Employee [32] It goes without saying that the no person in shall be deprived of his rights to natural justice in his rights to be heard. This is a verily substantial and fundamental rights afforded under the nation’s own Federal Constitution. [33] Although the Court takes notice of Clause 8.4 of the Employment Contract which allows the Applicant to immediately terminate the Employee’s employment, such clauses does not vitiate the Employee’s rights to be heard. One can never contract out of his rights to natural justice. [34] The Minister in his affidavit has averred in numerous paragraphs (replying against the Applicant’s allegation on the Employee’s misconduct) that even in the face of these misconducts, the Applicant” “telah gagal mengambil tindakan disiplin” or has failed to take disciplinary actions against the Employee. [35] It is the fact afforded by the Applicant itself that the board in calling for the First Meeting has already informed the Employee of the non-renewal of his contract on the grounds of the Employee’s misconducts. There were no evidences that any warnings or enquiries or show-causes has been allowed to the Applicant before the board reached a consensus to remove the Employee from his tenure as Headteacher. [36] Albeit that the Employee was granted a garden leave for a few months to consider the prospect, it cannot be argued that the Employee has not attempted to justify or contended against the allegations during this time. This is because firstly, in that time, the Applicant has already actively sought to find a replacement which in fact did replace the Applicant before the expiration of his contract. Secondly, the decision to remove the Employee from his tenure vide the prospect and non-renewal of his contract was reached even before the Employee went on his garden leave. [37] The finality of the termination under clause 8.4 during the meeting on 26.2.2013 was reached even before any disciplinary proceedings in any form took place on all of the misconducts alleged by the Applicant. [38] It is imperative for this Court to highlight that the Applicant itself has vide its AIS exhibited a “Formal Warning” against one Zirra Azim, a nursery teacher of the Applicant who is given a warning the she may be instantly dismissed should she continue to commit “any serious act of negligence of duty” under Clause 8.2(2) of Zirra Azim’s employment contract (see Exhibit DB-34 of the AIS) [39] Thereafter, the Applicant in dismissing Zirra Azim further issued a termination letter following the previous warning which reads: “Please accept this letter as notification of immediate termination…This follows a formal warning given to you on 26th April, 2012 when it was explained that further absences and poor communication of such, will result in your dismissal… This dismissal is covered under section 8.2 of your contract which states “The School may terminate the contract immediately and with no further remuneration in the event of serious misconduct on behalf of the employee. Cases of serious misconduct include but not limited to: - Any serious act of negligence or neglect of duty” [40] It is verily clear that firstly, the clause in which the warning and dismissal refers to is verily similar to clause 8.4 of the Employee’s contract in the present case. Secondly, for such negligence or neglect of duty, clearly there is an operating/disciplinary procedure that the Applicant adheres to in the face of employee misconducts. [41] Peculiarly and importantly, evidences of these procedures were not exhibited with regard to the Employee’s series of misconducts. It is irrelevant that the Employee holds a high position in the School. It does not negate the fact that he should be subjected to the same disciplinary procedures as other employees of the Applicant. [42] The rule of natural justice is an encompassing principle that ought to be adhered to by all administrative authorities. This Court is guided by the recent Federal Court decision in Malaysia Airline System Bhd v Wan Sa' adi @ Syed Sa' adi bin Wan Mustafa [2015] 1 MLJ 757: “[25] The basic rules of natural justice are generally understood to mean the right to be heard, the rule against bias and the duty to act fairly. However the scope of the 'duty to act fairly' should be considered on a case to case basis depending on the facts and circumstances governing the relationship of those involved prior to the decision being made. [26] As regards procedural fairness it encompasses the procedures used by a decision maker and not so much the actual decision itself. Ordinarily, procedural fairness requires a hearing that is appropriate to the facts and circumstances of the matter, the absence of bias, the availability of evidence and an inquiry into the issue before a decision is made. [27] In Ketua Pengarah Kastam v Ho Kwan Seng [1977] 2 MLJ 152 at p 154 Raja Azlan Shah FCJ (as His Majesty then was) said this: In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled 'judicial', 'quasi-judicial', or 'administrative' or whether or not the enabling statute makes provision for a hearing. But the hearing may take many forms and strict insistence upon an inexorable right to the traditional courtroom procedure can lead to a virtual administrative breakdown. That is because a formal hearing is too slow, too technical and too costly. Lord Shaw's caveat on administrative adjudication that 'judicial methods may … be entirely unsuitable, and produce delays, expenses, and public and private injury' is too well-known to be side-stepped: see Local Government Board v Arlidge [1915] AC 120 at p 138. In the last analysis, it depends on the subject matter. The great need is to deal efficiently and fairly, rather than to preserve all the accouterments of the court room; the considerations of basic fairness are paramount.” [43] Thus, the Minister has in this regard, correctly considered the alleged deprivation of natural justice against the Employee raises a serious question of fact or law which would identify whether or not the Employee was dismissed with just cause. The Minister has wrongfully considered the Employee’s bare denials during the Conciliatory Meeting [44] Now, amidst the numerous contention of the Applicant that the Minister has categorically not considered facts of the dispute, this Court is also minded that the Minister has also averred that the facts were only not brought up during the conciliatory meeting but has already been considered by the Minister vide the representation and documents forwarded to the Minister’s office. [45] Even the Applicant’s submission’s focal point is on the contention that the Minister is wrong in considering the Employee’s bare denial rather than the Minister’s failure to consider facts of the dispute. [46] The Minister indeed has considered the Employee’s bare denials without any reference of to any evidences or documents to disprove the Applicant’s allegation of misconducts. The Minister did not even exhibit any of the supposed evidences which the Employee purportedly referred to in disproving his misconducts. The Minister simply avers in paragraph 26 of his Affidavit in Reply: “Perenggan 63 dalam Afidavit Pemohon adalah dirujuk dan saya menyatakan bahawa Responden Ketiga telah menafikan perkara tersebut ketika rundingan damai” [47] The Minister also has averred in paragraph 28.5 of his Affidavit in Reply that he has considered that the Employee has denied the allegations of misconducts in which the Employee had done so with reference to “dokumen-dokumen yang relevan” or relevant documents. However, at the same time, the Minister never exhibited or even specifically referred to these so-called relevant documents purportedly referred to by the Employee. [48] Clearly, without any references to these relevant documents, it is apparent that the Minister had considered the bare denial in concluding that there was a serious question of fact or law warranting the Reference to the Industrial Court. This consideration is indeed a misdirection in the Minister’s exercise of his discretion. This Court is guided by the case of Loh Siew Kim v Menteri Sumber Manusia, Malaysia & Anor [2010] 1 LNS 558 at page 24: “I agree with counsel for the 2nd Respondent that a determination that there are serious issues to be tried cannot be arrived at only upon bare allegations. To raise a serious issue, not just a mere issue, fit to be tried by the Industrial Court, the opposite party must condescend upon particulars.” [49] This Court also finds valuable guidance in the Privy Council decision in Mahon v Air New Zealand Ltd and others [1984] 3 All ER 201. Lord Diplock in delivering the Privy Council’s decision has held: “The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the English Court of Appeal in R v Deputy Industrial Injuries Comr, ex p Moore [1965] 1 All ER 81 at 94–95, [1965] 1 QB 456 at 488–490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt Erebus disaster. The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision on evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.” [50] The Minister in his affidavit has indicated that he has considered the Employee’s bare denial. Such bare denial cannot carry any probative value for the Employee to prove his case. Thus, here the Minister has wrongfully considered the Employee’s bare denial as a ground to warrant his Reference to the Industrial Court. IS THE MINISTER’S FINDING THAT THERE WAS SERIOUS ISSUE TO BE TRIED OR THERE WAS A QUESTION OF LAW OR FACT OF WHETHER THE EMPLOYEE WAS TERMINATED WITH JUST CAUSE, A PROPERLY CONCEIVED FINDING? [51] Alluding to the above, the Minister has found that there was an issue to be tried on whether the Employee was dismissed with just cause which warrants his Reference to the Industrial Court. His finding mainly hinges on these two grounds: i. There is a valid dispute regarding the evidences of the Employee’s misconduct which should be decided by the Industrial Court. (to which the Court earlier found is a wrongful consideration) ii. There is a serious issue to be tried of whether the Employee was dismissed with just cause in light of the fact that the Employee was not afforded his rights to be heard in a disciplinary action. [52] Indeed, the Court acknowledges that the Minister’s consideration to the Employee’s bare denials is a misdirection of his exercise of discretion. However, even in the face of such misdirection, equally so, the Court cannot ignore the propriety of the Minister’s decision regarding the Employee’s rights to be heard in a disciplinary proceeding before the Applicant decides to dismiss the Employee. [53] As had been decided by the Federal Court in the Malaysia Airlines case in referring to Raja Azlan Shah FCJ’s (as His Majesty then was) decision, the rights to be heard is a pinnacle consideration in any administrative decision. Such rights must be afforded to every man subjected to such decision. [54] Thus, this Court is of the view that the Minister’s misdirection in considering the Employee’s bare denials does not vitiate the Minister’s justification in the exercise of his discretion in toto. There is indeed an undeniable serious issue to be tried in the Industrial Court with regard to the Employee’s fundamental rights to be heard. [55] Furthermore, it is verily unbecoming of the Court to forego one employee’s rights to natural justice merely because of the Minister’s improper exercise of his discretion under the Act. The Employee has the rights to have the Industrial Court to decide on his rights to be heard and this Court is not about to impede on that right. [56] Thus, it is this Court’s finding that notwithstanding the Minister’s misdirection in considering the Employee’s bare denials, the Minister remains correct in deciding to refer the Employee’s representation to the Industrial Court in light of the Employee’s fundamental right to natural justice (his right to be heard). HAS THE MINISTER MISDIRECTED HIS DISCRETION IN CONTRADICTING THE PURPOSE, OBJECT AND THE POLICY OF THE ACT ITSELF? [57] The preamble of the Act stipulates the overriding policy, object and purpose of the Act to be: “An act to promote and maintain industrial harmony and to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.” [58] Precedents have even decided that the Minister must exercise his discretion in promoting such settlement of dispute. This Court is guided by the Federal Court decision in National Union of Hotel, bar and Restaurant Workers v Minister of Labour and Manpower [1980] 2 MLJ 189 at page 191: “Thus we must construe the Industrial Relations Act 1967, to determine its policy and object. It cannot be gainsaid that the intention of the Act is to regulate the relations between management and labour and to prevent and settle trade disputes arising therefrom.” [59] Furthermore, the Court of Appeal has also held in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 at page 61: “Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or settling the particular dispute; for that is what the Act is primarily aimed at…” [60] In fact, the Court of Appeal has recently decided in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377 that: “[31] More to the point at hand, we have judicial pronouncements which make it clear that the Minister’s exercise of discretion or administrative powers under the provisions of the IR Act must always be within the objectives of the legislation and the scope of his statutory responsibilities.” [61] Upon the authorities above, this Court finds that the Minister in considering the Employee’s right to be heard in a disciplinary proceeding has not misdirected himself and contradicted the object, purpose and policy of the Act. [62] It was undisputed that a mutual separation or settlement was never concluded between the Applicant and the Employee. Thus, it is only fitting that the dispute is referred to the Industrial Court to be determined after the conciliatory meetings have already failed with the DGIR. [63] It is instead against the policy of the Act if the Minister has not make the reference as the dispute would be left hanging without any closure, which in turn, would promote industrial disharmony between the Applicant as the Employer, the Employee and even the Industrial Relations Department as the Administrative authority. COURT’S FINDINGS [64] In light of all the deliberations above, it is this Court’s finding that the Minister remains correct in deciding to refer the Employee’s representation to the Industrial Court in light of the Employee’s fundamental right to natural justice (his right to be heard). [65] The Employee’s right to be heard is a fundamental right which cannot be dispensed with. Thus, it is indeed a serious issue to be tried and is a valid question of law or fact to be referred to the Industrial Court to be determined. COURT’S DECISION AND DIRECTIONS [66] In light of all of the above findings and having considered the Applicant’s application in its totality, it is this Court’s decision that the Applicant has not made out a case for a judicial review. Thus, this Court hereby dismisses the Applicant’s application for an Order of Certiorari to quash the Minister’s Reference dated 28.10.2013. On the issue of costs [67] The Parties have agreed to an agreed costs of RM5,000.00. Thus, this Court hereby orders that the Applicant do pay the Respondents a sum of RM5,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 7th of day July, 2015 For the Applicant - Tetuan Lee Hishamuddin Allen & Gledhill Encik Amardeep Singh For the 1st Respondent - Pejabat Undang-Undang Negeri Selangor Cik Hani Haniza For the 3rd Respondent - Tetuan Bodipalar Ponnudurai De Silva Encik Anand Ponnudurai Cik Kamini 1

Tika 2.6.0

25-2-01/2014

PEMOHON THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD RESPONDEN 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. GILBARD HONEY-JONES

07/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=93adc03b-702b-467b-a822-a9a5577e1ebd&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA APPLICATION FOR JUDICIAL REVIEW NO: 25-2-01/2014 In the matter of a decision by the Minister of Human Resources, Malaysia which was stated in a letter from the office of the Ministry of Human Resources dated 28.10.2013 which was received on 1.11.2013; And In the matter of an application for an order of certiorari and prohibitory order; And In the matter of Section 20 of the Industrial Relations Act 1967 (Act 177); And In the matter of Order 53 Rules of Court 2012 BETWEEN THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD … APPLICANT AND 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. GILBARD HONEY-JONES ... RESPONDENTS GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] This is an application by the Applicant (The British School of Kuala Lumpur Sdn Bhd) for judicial review pursuant to Order 53 rule 3 of the Rules of Court 2012 (ROC 2012). The Applicant has sought from this Court inter alia for an order of Certiorari and an order for Prohibition against the 1st Respondent, the Minister of Human Resources (“Minister”) in referring (“Reference”) the representation (“Representation”) made by the 3rd Respondent (Gilbard Honey -Jones) who is the ex-employee (“Employee”) of the Applicant to the Industrial Court which is the 2nd Respondent for an Award or Decision. [2] Succinctly put, it is the Applicant’s case that the Minister had misdirected his discretion under section 20 of the Industrial Relations Act 1967 (the Act) in making such Reference regarding a Representation which in essence allegedly is not a case fit to be referred to the Industrial Court. [3] The Applicant is a private co-educational international school which facilitates education based on the curriculum of England and Whales. [4] The Employee commenced his employment as a Headteacher with the Applicant on 1.2.2009. (See Exhibit DB-1 of the Applicant’s Affidavit in Support (“AIS”)). [5] Thereafter, concerns and issues arose regarding the Employee’s alleged conduct in his performance of his duties as Headteacher of the Applicant and the non-tenability of continuing with his appointment. Evidence of which has been categorically appended in Exhibit DB-A-1 of the Applicant’s Affidavit in Reply against the Minister’s Affidavit in Reply. (There are contentions made against these evidences by the Employee. This Court shall delve into these contentions later in this judgment) [6] Entailing his poor performance and misconducts, a meeting was held on 9.11.2012 between the Employee and 3 directors of the Applicant namely, Stewart Fry, Darren brown and John Ordovas (“First Meeting”). In the same meeting, the Employee was informed of the fact that the School see it fit not to renew his contract upon expiration the following year in April 2014. The Employee was informed and has discussed a prospect of the Employee taking up the position of Group Advisory Board Chairman instead of his previous tenure as the Applicant’s Headteacher (“Prospect”). [7] Following the First Meeting, Stewart Fry sent an email of 13.11.2012 to the Employee in reference to their discussion during the First meeting regarding the Employee’s Prospect. (See Exhibit DB-2 of the AIS) [8] In response to the email above, the Employee sent an email of 29.11.2012 mainly expressing of his shock at the Board’s decision to not renew his contract and also to the alleged fact that the Applicant has never advised himself of the array of alleged misconducts (See Exhibit DB-3 of AIS): “It was a pity that I was not advised of your discontent and the bombshell of non-contract renewal came as quite a shock.” [9] In the same e-mail, the Employee requested for time to consider the Prospect at least after the Christmas holidays. [10] In the midst of the Employee’s consideration, the Applicant took steps to find and appoint a new Headteacher, one Janet Brock in the Employee’s stead. Janet Brock was appointed vide a Fixed Term Employment Agreement dated 29.1.2013 which stated that she shall assume her duties as Headteacher on 1.3.2013. (See Exhibit DB-7 of the AIS) [11] All throughout Janet’s candidacy to her appointment, the Applicant and the Employee were at loggerheads and were stagnated at an impasse. In efforts to break the impasse, a discussion was held between the Applicant and the Employee on 26.2.2013. It entails that the parties were not able to reach to a mutual cessation of the Employee’s tenure. Thus, the Applicant hinging on Clause 8.4 of the Employment Contract decided to terminate the Employee’s employment on the reason of the Employee’s alleged misconducts. Here, the Applicant sought to exercise its alleged managerial prerogative as an employer. In the same meeting, the Applicant issued a Termination Letter dated 26.2.2013 which contains terms of mutual separation vide the Employee’s cessation from employment with the Applicant. (See Exhibit DB-8 of the AIS for the Termination Letter). [12] Clause 8.4 of the Employment Contract reads: “The School may terminate the Contract immediately and with no further remuneration in the event of serious misconduct on behalf of the Employee. Cases of serious misconduct include but are not limited to: - Conduct set out in the School’s disciplinary procedures which warrants dismissal without notice - Any serious act of negligence or neglect of duty” [13] In response to the Termination Letter, the Employee vide his solicitors has rejected the terms of mutual separation in the Termination Letter and states that he will resume his duties on 10.3.2013. (See Exhibit DB-9 of the AIS for this letter dated 1.3.2013) [14] Consequent to the Employee’s termination, the Employee proceeded to file a representation at the Department of Human Resources. The Applicant then was informed through a letter dated 15.5.2013 that it is required to attend a conciliatory meeting (“conciliatory meeting”) at the Department of Human Resources on 29.5.2013. However, the conciliatory meeting had only taken place on 4.7.2013. (See Exhibit DB-45 of the AIS for the 15.5.2013 letter) [15] The Applicant had furnished the full extent of the facts and circumstances of the Employee’s misconducts during the conciliatory meeting. The Employee has only denied the allegations forwarded by the Applicant. The conciliatory meeting was dismissed without any success of reaching a mutual settlement or separation between the parties. [16] Following the conciliatory meeting, the Applicant has issued the Employer’s Information Form (“Information Form”) to the Department of Human Resources on 19.7.2013. The same Information Form succinctly sets out all the facts and misconducts leading to the Employee’s termination. (See Exhibit DB-46 of the AIS). [17] Furthermore, the Applicant has issued its own written representation (“Written Representation”) on 31.7.2013 enclosing all of the relevant and contemporaneous documents to prove the Employee’s misconducts leading to his termination. (See Exhibit DB-A-1 of the Applicant’s Affidavit in reply for the written representation and all of the appended documents). [18] The same Written Representation has extensively set out the facts and circumstances of the Employee’s misconducts leading up to the Employee’s Termination. The mass of the Employee’s misconducts include inter alia: a. Appointing a Deputy Headteacher without the joint approval of board members; b. Neglecting to carry out a police and reference checks (in appointment process) and to take remedial steps; c. Neglecting to organize and to oversee staff appraisals annually; d. Dismissing staff without the board’s approval and/or legal advice; e. Discriminatory exercise of disciplinary authority; f. Failing to take care of health and welfare of students and staff; and g. Failure in communication and dealings with parents of the students regarding the Telekom Towers, change in school lunch menu and scholarship application. [19] The Director General of Industrial Relations (“DGIR”) has forwarded his notification and report dated 30.8.2013 to the Industrial Relations Headquarters in Putrajaya for the Minister’s consideration. (See Exhibit DB-48 of the AIS). [20] The Minister accordingly has averred in his Affidavit in Reply in paragraphs 25 and 27 that he has duly received and considered the Information Form and Written Representation. [21] Ensuing from the above, the Minister has issued a letter dated 28.10.2013 which was received by the Applicant on 1.11.2013 informing of his decision to refer the Employee’s representation to the Industrial Court (“Reference”). (See Exhibit DB-49 of the AIS) [22] The Applicant’s case is against this Reference. The Applicant’s case can be summarised in the following manner: [23] The Minister had misdirected himself in inappropriately exercising his discretion under Section 20 of the Act on the grounds that: i. The Minister had failed to properly appreciate the factual matrix of the case. In that the Minister had failed to consider facts which he ought to consider and had considered matters which he ought not to consider; ii. The Minister had failed to appropriately find that there was no serious question of law or fact of whether the Employee was terminated with just cause; iii. The Minister had failed to identify that the case to be a case unfit to be referred to the Industrial Court as it goes against the purpose and the policy of the Act itself. HAVE THE MINISTER PROPERLY APPRECIATE THE FULL FACTUAL MATRIX OF THE CASE? [24] Now, it is plain to this Court that the 2nd and 3rd grounds of contention of the Applicant can only be answered if the 1st ground of contention has been determined. Thus, this Court shall first delve into the underlying facts of this case and identify if there were indeed any misdirection on the part of the Minister in exercising his discretion under section 20(1) of the Act in referring the representation to the Industrial Court for adjudication. [25] There is little dispute on the underlying law and principle governing the Minister’s duty to examine and appreciate the full facts of the representations and report he received from the Director General of Industrial Relations regarding the dispute and the conduct of the conciliation meetings. [26] Generally in exercising the Court’s discretion in judicial reviews this Court is guided by the decision of the Court of Appeal in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377: “It has been accepted by the courts too that…the court could still go behind the decision, where the allegations raised were to the effect that the decision maker had transgressed principles of procedural impropriety, illegality or irrationality (may be even proportionality) in arriving at the impugned decision. In those circumstances, it was open to the court to extend its scrutiny into the area of the merits or justification behind that decision.” [27] The Applicant’s allegation is exactly to that effect. Thus, it is fitting that the Court delves into the merits or justification of the Minister’s decision in the present case. [28] This Court is guided by the High Court decision in Chan Soon Lee v YB Menteri Sumber Manusia Malaysia & Anor [1998] 5 CLJ 133 at page 160: “Just as a workman is entitled to the said protection, similarly the law recognises the right of an employer to dismiss his workman with just cause or excuse. The minister when acting under s. 20(3) of the Act has to see that these two distinct rights are safeguarded based on the facts and material placed before him in the notification made to him by the director-general under s. 20(2) of the Act…the role of the minister is to ascertain whether on the facts and material placed before him, the representation raises serious questions of fact or of law calling for adjudication by the Industrial Court”(emphasis added) [29] On the same principle, the Employee in its submissions has referred to the Federal Court decision in Exxon Chemical (Malaysia) Sdn Bhd v Menteri Sumber Manusia Malaysia & ors [2007] 2 CLJ 97: “It meant that there should be an objective examination of the factual matrix available before the Minister in order to ascertain whether a reasonable person, in similar circumstances, would have arrived at the decision which the Minister had done.”(Emphasis added) [30] It is also a proof of a misdirection of a Minister’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 CLJ (Rep) 183 : “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have taken into account or vice versa; or has otherwise gone wrong in law”(emphasis added) [31] It is also the law that the Minister should be apprised of all of the facts of the dispute from the DGIR and can only refer to the facts raised to the DGIR in his report to the Minister. The role of the DGIR’s report is verily important in the proper exercise of the Minister’s discretion under Section 20 of the Act. This Court is guided by the case of Abdullah Azizi Abd Hamid v Menteri Sumber Manusia & Anor [1998] 2 CLJ 297 at pages 301 to 302: “He relies purely on the notification made to him by the Director General under sub-s. (2)…With the notification he would have before him naturally the report of the proceedings including whatever evidence both oral and documentary presented therein. Upon all these matters placed before him, the Minister would make a study and decide as to whether the representation is frivolous or vexatious. He is not allowed to consider other irrelevant matters not placed before him by the Director General. That being the case, what took place before the Director General during conciliation proceedings is crucial.”(emphasis added) The Minister has correctly considered the absence of Disciplinary Actions on all of the alleged misconducts of the Employee [32] It goes without saying that the no person in shall be deprived of his rights to natural justice in his rights to be heard. This is a verily substantial and fundamental rights afforded under the nation’s own Federal Constitution. [33] Although the Court takes notice of Clause 8.4 of the Employment Contract which allows the Applicant to immediately terminate the Employee’s employment, such clauses does not vitiate the Employee’s rights to be heard. One can never contract out of his rights to natural justice. [34] The Minister in his affidavit has averred in numerous paragraphs (replying against the Applicant’s allegation on the Employee’s misconduct) that even in the face of these misconducts, the Applicant” “telah gagal mengambil tindakan disiplin” or has failed to take disciplinary actions against the Employee. [35] It is the fact afforded by the Applicant itself that the board in calling for the First Meeting has already informed the Employee of the non-renewal of his contract on the grounds of the Employee’s misconducts. There were no evidences that any warnings or enquiries or show-causes has been allowed to the Applicant before the board reached a consensus to remove the Employee from his tenure as Headteacher. [36] Albeit that the Employee was granted a garden leave for a few months to consider the prospect, it cannot be argued that the Employee has not attempted to justify or contended against the allegations during this time. This is because firstly, in that time, the Applicant has already actively sought to find a replacement which in fact did replace the Applicant before the expiration of his contract. Secondly, the decision to remove the Employee from his tenure vide the prospect and non-renewal of his contract was reached even before the Employee went on his garden leave. [37] The finality of the termination under clause 8.4 during the meeting on 26.2.2013 was reached even before any disciplinary proceedings in any form took place on all of the misconducts alleged by the Applicant. [38] It is imperative for this Court to highlight that the Applicant itself has vide its AIS exhibited a “Formal Warning” against one Zirra Azim, a nursery teacher of the Applicant who is given a warning the she may be instantly dismissed should she continue to commit “any serious act of negligence of duty” under Clause 8.2(2) of Zirra Azim’s employment contract (see Exhibit DB-34 of the AIS) [39] Thereafter, the Applicant in dismissing Zirra Azim further issued a termination letter following the previous warning which reads: “Please accept this letter as notification of immediate termination…This follows a formal warning given to you on 26th April, 2012 when it was explained that further absences and poor communication of such, will result in your dismissal… This dismissal is covered under section 8.2 of your contract which states “The School may terminate the contract immediately and with no further remuneration in the event of serious misconduct on behalf of the employee. Cases of serious misconduct include but not limited to: - Any serious act of negligence or neglect of duty” [40] It is verily clear that firstly, the clause in which the warning and dismissal refers to is verily similar to clause 8.4 of the Employee’s contract in the present case. Secondly, for such negligence or neglect of duty, clearly there is an operating/disciplinary procedure that the Applicant adheres to in the face of employee misconducts. [41] Peculiarly and importantly, evidences of these procedures were not exhibited with regard to the Employee’s series of misconducts. It is irrelevant that the Employee holds a high position in the School. It does not negate the fact that he should be subjected to the same disciplinary procedures as other employees of the Applicant. [42] The rule of natural justice is an encompassing principle that ought to be adhered to by all administrative authorities. This Court is guided by the recent Federal Court decision in Malaysia Airline System Bhd v Wan Sa' adi @ Syed Sa' adi bin Wan Mustafa [2015] 1 MLJ 757: “[25] The basic rules of natural justice are generally understood to mean the right to be heard, the rule against bias and the duty to act fairly. However the scope of the 'duty to act fairly' should be considered on a case to case basis depending on the facts and circumstances governing the relationship of those involved prior to the decision being made. [26] As regards procedural fairness it encompasses the procedures used by a decision maker and not so much the actual decision itself. Ordinarily, procedural fairness requires a hearing that is appropriate to the facts and circumstances of the matter, the absence of bias, the availability of evidence and an inquiry into the issue before a decision is made. [27] In Ketua Pengarah Kastam v Ho Kwan Seng [1977] 2 MLJ 152 at p 154 Raja Azlan Shah FCJ (as His Majesty then was) said this: In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled 'judicial', 'quasi-judicial', or 'administrative' or whether or not the enabling statute makes provision for a hearing. But the hearing may take many forms and strict insistence upon an inexorable right to the traditional courtroom procedure can lead to a virtual administrative breakdown. That is because a formal hearing is too slow, too technical and too costly. Lord Shaw's caveat on administrative adjudication that 'judicial methods may … be entirely unsuitable, and produce delays, expenses, and public and private injury' is too well-known to be side-stepped: see Local Government Board v Arlidge [1915] AC 120 at p 138. In the last analysis, it depends on the subject matter. The great need is to deal efficiently and fairly, rather than to preserve all the accouterments of the court room; the considerations of basic fairness are paramount.” [43] Thus, the Minister has in this regard, correctly considered the alleged deprivation of natural justice against the Employee raises a serious question of fact or law which would identify whether or not the Employee was dismissed with just cause. The Minister has wrongfully considered the Employee’s bare denials during the Conciliatory Meeting [44] Now, amidst the numerous contention of the Applicant that the Minister has categorically not considered facts of the dispute, this Court is also minded that the Minister has also averred that the facts were only not brought up during the conciliatory meeting but has already been considered by the Minister vide the representation and documents forwarded to the Minister’s office. [45] Even the Applicant’s submission’s focal point is on the contention that the Minister is wrong in considering the Employee’s bare denial rather than the Minister’s failure to consider facts of the dispute. [46] The Minister indeed has considered the Employee’s bare denials without any reference of to any evidences or documents to disprove the Applicant’s allegation of misconducts. The Minister did not even exhibit any of the supposed evidences which the Employee purportedly referred to in disproving his misconducts. The Minister simply avers in paragraph 26 of his Affidavit in Reply: “Perenggan 63 dalam Afidavit Pemohon adalah dirujuk dan saya menyatakan bahawa Responden Ketiga telah menafikan perkara tersebut ketika rundingan damai” [47] The Minister also has averred in paragraph 28.5 of his Affidavit in Reply that he has considered that the Employee has denied the allegations of misconducts in which the Employee had done so with reference to “dokumen-dokumen yang relevan” or relevant documents. However, at the same time, the Minister never exhibited or even specifically referred to these so-called relevant documents purportedly referred to by the Employee. [48] Clearly, without any references to these relevant documents, it is apparent that the Minister had considered the bare denial in concluding that there was a serious question of fact or law warranting the Reference to the Industrial Court. This consideration is indeed a misdirection in the Minister’s exercise of his discretion. This Court is guided by the case of Loh Siew Kim v Menteri Sumber Manusia, Malaysia & Anor [2010] 1 LNS 558 at page 24: “I agree with counsel for the 2nd Respondent that a determination that there are serious issues to be tried cannot be arrived at only upon bare allegations. To raise a serious issue, not just a mere issue, fit to be tried by the Industrial Court, the opposite party must condescend upon particulars.” [49] This Court also finds valuable guidance in the Privy Council decision in Mahon v Air New Zealand Ltd and others [1984] 3 All ER 201. Lord Diplock in delivering the Privy Council’s decision has held: “The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the English Court of Appeal in R v Deputy Industrial Injuries Comr, ex p Moore [1965] 1 All ER 81 at 94–95, [1965] 1 QB 456 at 488–490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt Erebus disaster. The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision on evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.” [50] The Minister in his affidavit has indicated that he has considered the Employee’s bare denial. Such bare denial cannot carry any probative value for the Employee to prove his case. Thus, here the Minister has wrongfully considered the Employee’s bare denial as a ground to warrant his Reference to the Industrial Court. IS THE MINISTER’S FINDING THAT THERE WAS SERIOUS ISSUE TO BE TRIED OR THERE WAS A QUESTION OF LAW OR FACT OF WHETHER THE EMPLOYEE WAS TERMINATED WITH JUST CAUSE, A PROPERLY CONCEIVED FINDING? [51] Alluding to the above, the Minister has found that there was an issue to be tried on whether the Employee was dismissed with just cause which warrants his Reference to the Industrial Court. His finding mainly hinges on these two grounds: i. There is a valid dispute regarding the evidences of the Employee’s misconduct which should be decided by the Industrial Court. (to which the Court earlier found is a wrongful consideration) ii. There is a serious issue to be tried of whether the Employee was dismissed with just cause in light of the fact that the Employee was not afforded his rights to be heard in a disciplinary action. [52] Indeed, the Court acknowledges that the Minister’s consideration to the Employee’s bare denials is a misdirection of his exercise of discretion. However, even in the face of such misdirection, equally so, the Court cannot ignore the propriety of the Minister’s decision regarding the Employee’s rights to be heard in a disciplinary proceeding before the Applicant decides to dismiss the Employee. [53] As had been decided by the Federal Court in the Malaysia Airlines case in referring to Raja Azlan Shah FCJ’s (as His Majesty then was) decision, the rights to be heard is a pinnacle consideration in any administrative decision. Such rights must be afforded to every man subjected to such decision. [54] Thus, this Court is of the view that the Minister’s misdirection in considering the Employee’s bare denials does not vitiate the Minister’s justification in the exercise of his discretion in toto. There is indeed an undeniable serious issue to be tried in the Industrial Court with regard to the Employee’s fundamental rights to be heard. [55] Furthermore, it is verily unbecoming of the Court to forego one employee’s rights to natural justice merely because of the Minister’s improper exercise of his discretion under the Act. The Employee has the rights to have the Industrial Court to decide on his rights to be heard and this Court is not about to impede on that right. [56] Thus, it is this Court’s finding that notwithstanding the Minister’s misdirection in considering the Employee’s bare denials, the Minister remains correct in deciding to refer the Employee’s representation to the Industrial Court in light of the Employee’s fundamental right to natural justice (his right to be heard). HAS THE MINISTER MISDIRECTED HIS DISCRETION IN CONTRADICTING THE PURPOSE, OBJECT AND THE POLICY OF THE ACT ITSELF? [57] The preamble of the Act stipulates the overriding policy, object and purpose of the Act to be: “An act to promote and maintain industrial harmony and to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.” [58] Precedents have even decided that the Minister must exercise his discretion in promoting such settlement of dispute. This Court is guided by the Federal Court decision in National Union of Hotel, bar and Restaurant Workers v Minister of Labour and Manpower [1980] 2 MLJ 189 at page 191: “Thus we must construe the Industrial Relations Act 1967, to determine its policy and object. It cannot be gainsaid that the intention of the Act is to regulate the relations between management and labour and to prevent and settle trade disputes arising therefrom.” [59] Furthermore, the Court of Appeal has also held in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 at page 61: “Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or settling the particular dispute; for that is what the Act is primarily aimed at…” [60] In fact, the Court of Appeal has recently decided in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377 that: “[31] More to the point at hand, we have judicial pronouncements which make it clear that the Minister’s exercise of discretion or administrative powers under the provisions of the IR Act must always be within the objectives of the legislation and the scope of his statutory responsibilities.” [61] Upon the authorities above, this Court finds that the Minister in considering the Employee’s right to be heard in a disciplinary proceeding has not misdirected himself and contradicted the object, purpose and policy of the Act. [62] It was undisputed that a mutual separation or settlement was never concluded between the Applicant and the Employee. Thus, it is only fitting that the dispute is referred to the Industrial Court to be determined after the conciliatory meetings have already failed with the DGIR. [63] It is instead against the policy of the Act if the Minister has not make the reference as the dispute would be left hanging without any closure, which in turn, would promote industrial disharmony between the Applicant as the Employer, the Employee and even the Industrial Relations Department as the Administrative authority. COURT’S FINDINGS [64] In light of all the deliberations above, it is this Court’s finding that the Minister remains correct in deciding to refer the Employee’s representation to the Industrial Court in light of the Employee’s fundamental right to natural justice (his right to be heard). [65] The Employee’s right to be heard is a fundamental right which cannot be dispensed with. Thus, it is indeed a serious issue to be tried and is a valid question of law or fact to be referred to the Industrial Court to be determined. COURT’S DECISION AND DIRECTIONS [66] In light of all of the above findings and having considered the Applicant’s application in its totality, it is this Court’s decision that the Applicant has not made out a case for a judicial review. Thus, this Court hereby dismisses the Applicant’s application for an Order of Certiorari to quash the Minister’s Reference dated 28.10.2013. On the issue of costs [67] The Parties have agreed to an agreed costs of RM5,000.00. Thus, this Court hereby orders that the Applicant do pay the Respondents a sum of RM5,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 7th of day July, 2015 For the Applicant - Tetuan Lee Hishamuddin Allen & Gledhill Encik Amardeep Singh For the 1st Respondent - Pejabat Undang-Undang Negeri Selangor Cik Hani Haniza For the 3rd Respondent - Tetuan Bodipalar Ponnudurai De Silva Encik Anand Ponnudurai Cik Kamini 1

Tika 2.6.0

25-77-12/2013

PEMOHON THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD RESPONDEN 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. KATEIA MOHIEELDIN MOHAMMED ZAIED

07/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f6cc5413-1eb5-478c-80e8-75da5247dbfb&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA APPLICATION FOR JUDICIAL REVIEW NO: 25-77-12/2013 In the matter of a decision by the Minister of Human Resources, Malaysia which was stated in a letter from the office of the Ministry of Human Resources dated 28.8.2013 which was received on 11.9.2013; And In the matter of an application for an order of certiorari and prohibitory order; And In the matter of Section 20 of the Industrial Relations Act 1967 (Act 177); And In the matter of Order 53 Rules of Court 2012 BETWEEN THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD … APPLICANT AND 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. KATEIA MOHIEELDIN MOHAMMED ZAIED ... RESPONDENTS GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] This is an application by the Applicant (The British School of Kuala Lumpur Sdn Bhd) for judicial review pursuant to Order 53 rule 3 of the Rules of Court 2012 (ROC 2012). The Applicant has sought from this Court inter alia for an order of Certiorari and an order of Prohibition against the 1st Respondent, the Minister of Human Resources (“Minister”) in referring (“Reference”) the representation (“Representation”) made by the 3rd Respondent (Kateia Mohieeldin Mohammad Zaied) who is the ex-employee of the Applicant (“Employee”) to the Industrial Court which is the 2nd Respondent for an Award or Decision. [2] Succinctly put, it is the Applicant’s case that the Minister had misdirected his discretion under section 20 of the Industrial Relations Act 1967 ( the Act) in making such Reference regarding a Representation which in essence allegedly is not a case fit to be referred to the Industrial Court. [3] The Applicant is a private co-educational international school which facilitates education based on the curriculum of England and Whales. [4] The Employee commenced her employment as a Nursery Teacher with the Applicant on 15.8.2009. (See exhibit EVC-1 of the Applicant’s Affidavit in Support (“AIS”)). [5] Thereafter, concerns and issues arose regarding the Employee’s alleged tardiness, absenteeism without notifying the Applicant and also leaving work early in her performance under the Employment Contract. Evidence of which has been categorically appended in Exhibit EVC-1-A of the Applicant’s Affidavit in Reply against the Minister’s Affidavit in Reply. (There are contentions made against these evidences by the Employee very late in her case (in her Affidavits in reply). This Court shall delve into these contentions later in this judgment) [6] Entailing her poor performance and absenteeism, a meeting was held late in 15.2.2013, the same day the Employee was absent from work for the 3rd time that week. One David Kirkham (“Witness”) was appointed to oversee and witness the meeting without a single iota of protest by either of the parties. During the meeting, the Employee was informed of the concerns, complaints and emails from parents who were concerned with their children’s education due to the Employee’s absenteeism and tardiness. Thereafter, the Employee was given a tri-faceted Option with 3 options to choose from (“Option”). The Option is NOT an ultimatum leading to termination or resignation [7] At this juncture, this Court must highlight that the option is not a simple 2 choices ultimatum. A simple appreciation of the full extent of the factual matrix would reveal that the Option was tri-faceted. The Option at any material time is NOT an ultimatum of either resign or be terminated/dismissed. Distinctively, the tri-faceted Option instead offers the following options, WITHOUT any of the options drawing an inevitable conclusion of termination/dismissal: i. Shape up and continue with the employment; or ii. Risk disciplinary actions if the same poor performance during employment is continued after the meeting; or iii. Voluntarily resign with added benefits should the Employee could not promise appropriate performance of her obligations under the Employment Contract. Warnings and show-causes are irrelevant [8] Furthermore, it must be highlighted here that the risk of disciplinary action is NOT with regard to the Employee’s past misconducts before the meeting, but instead the probable future continued misconduct should the Employee opts to continue with the employment. Thus, the question of proper warnings and show-causes is irrelevant in the present case as there are no future misconducts committed since the Employee opted to voluntarily resign from her employment. The tri-faceted Option has been reported in the following excerpt of the Witness’s Report. (See Exhibit EVC-5 of the AIS): “Adam asked Katya how did she think she was coping with the demand of the job and her husband’s current health situation, she said she was struggling but wanted to work. Adam explained to Katya that we were happy for her to continue in work but the current levels of absence…looked very likely to increase given her current situation. There had been verbal concerns raised by some of her class parents…and we received a letter from a concerned parent who…voiced her concerns over the disruption to this continued absence was having on her daughter in the class. Adam spoke very calmly and explained to Katya that from an employer’s point of view that continued absences over and above the current allocation…would lead to disciplinary action…He then showed her two examples of warnings that she could expect – failure to contact employer when absent and failure of duty of care. Adam suggested that if Katya wanted to look after her husband she could resign and not lose any benefits…He said he could try to get her pay until the end of term, with all her benefits. This was offered only as an option. Katya asked for time to talk it over with her husband. Adam agreed.” [9] After given time to consider the Option, another meeting was held to discuss the Employee’s decision over the Option given in the previous meeting with Adam and the Witness. This meeting was conducted on the immediate weekday after the previous meeting, on 18.2.2013 attended by the Witness, Emma Clearly (“Emma”) and the Employee. The Employee informed that she has already emailed her decision to resign to Adam even before the meeting. The conduct of the meeting was reported in the Witness’s report dated 27.5.2013 (see Exhibit EVC-4 of the AIS) and also Emma’s report of even date (see Exhibit EVC-5 of the AIS). Upon the Employee’s decision, Emma proceeded to draft the resignation letter which was later read and voluntarily signed by the Employee. Threat is irrelevant during the 18.2.2013 meeting [10] It must be highlighted at this juncture that any averment of threat during this meeting is verily irrelevant as the decision to resign as per the terms agreed was reached by the Employee even before the meeting itself vide the alleged email to Adam. Thus, it cannot be said that any statements during the meeting had cornered the Employee in making her decision to sign the resignation letter. [11] The terms of the voluntary resignation are as follows (see exhibit EVC-3 of the AIS): “i. The employment will officially end on Monday 18th February 2013. ii. The employee will be paid in full up until the end of academic term 2, Wednesday 22nd March 2013. iii. The employee will receive 2 business class one way flights to destination of choice.” [12] In compliance of the above resignation letter, the employee’s salary was paid (up to even 31.3.2013) into the Employee’s husband’s account on 26.3.2013, which was the usual payment arrangement between the Applicant and the Employee. [13] At this juncture, the overwhelming conclusion is already that there is a mutual settlement of the concerns between the Applicant and the Employee. [14] However, 10 days after the voluntary resignation, the Employee has issued a letter dated 28.2.2013 to the Applicant alleging that she was instead dismissed from her employment. (See Exhibit EVC-8 of the AIS): “I was further informed if I did not sign a particular document, I would be dismissed. Under these circumstances, I signed a document dated 18th February. This is to put on record that I consider the actions of the school as amounting to dismissal…” There is no threat leading the Employee to sign the resignation letter [15] Again, the assertion of threat is negated by the Employee’s own reported assertion that her decision to resign was already emailed to Adam even before the meeting on 18.2.2013. [16] The Employee proceeded to file a representation to the Industrial Relations Department. Following that representation the Applicant and the Employee were called for a conciliation meeting on 29.5.2013 vide a letter issued by the Industrial Relations Department. (See Exhibit EVC-9 of the AIS). [17] Following the letter calling for the conciliation meeting, the Applicant had duly furnished the Industrial Relations Department with the requisite Employer’s Information Form under section 20 of the Act. A simple scrutiny of this Information Form would show that the Applicant has sufficiently furnished all the facts underlying the Employee’s voluntary resignation covering the whole extent of the following: a. Employee’s tardiness, absenteeism and overall poor performance; “The employee had often been late, absent without medical leave and without informing the School and leaving work early throughout her employment. Furthermore, the Employee failed to submit an Assessment of her class in July 2011…” b. The first meeting on 15.2.2013 where the Employee was given the tri-faceted Option; “The Employee was absent on Friday 15.2.2013. This was the 3rd time that week that she was absent…At the said meeting…If the Employee continued being absent without informing the School, the School would have no choice but to commence disciplinary proceedings. The decision whether the Employee should resign or continue to work at the School with consistent attendance was left to the Employee…” c. Complaints and concerns of parents regarding Employee’s poor performance; “The School had received e-mails from parents who voiced their concerns on the unsettling effect of the Employee’s extended and unplanned absences on their child. Also, parents did e-mail the School as they were unhappy with the way the Employee handled their child concerning swimming lessons.” d. The fact that the Employee could not guarantee her consistent attendance to work; “The School asked the Employee how she would cope with the demands of her job and her husband’s ill health, as the School needed her to be consistent with her attendance at work. The employee advised that she could not guarantee her consistent attendance at work.” e. The fact that the Employee was given the whole weekend to consider the option; and “The decision whether the Employee should resign or continue to work at the School with consistent attendance was left to the Employee to mull over the weekend.” f. The fact that Employee was not dismissed and advised of her own voluntary resignation on 18.2.2013: “On 18.2.2013, the Employee advised the School that she had decided to resign from her employment with immediate effect.” [18] During the conciliation meeting, the Applicant has made a full and sufficient statement of fact underlying the Employee’s voluntary resignation. During this meeting, there was never any contention against the evidence of the Employee’s poor performance. The only contention raised by the Employee was that she was forced to the sign the resignation letter and she asked to be re-instated to her former occupation as a Nursery teacher with full salary and benefits. [19] Another conciliation meeting was conducted on 5.6.2013 in which the Applicant had furnished all the supporting documents and advised the Industrial Relations Officer of its decision to not reinstate the Employee. (See Exhibit EVC-11 of the AIS for the letter and enclosed supporting documents) [20] On 14.6.2013 the Applicant proceeded to furnish a written representation to the Industrial Relations Department echoing the material facts and contemporaneous documents of its contention with a request that the same would be represented to the Minister to enable him to exercise his duty under the Act. (See Exhibit EVC-12 of the AIS) [21] The same representation was informed to have been forwarded to the Industrial Relations Department in Putrajaya vide a letter dated 28.6.2013 which was received by the Applicant on 9.9.2013. (See Exhibit EVC-13 of the AIS) [22] Entailing the above, the Applicant was informed vide a letter dated 28.8.2013 from the Industrial Relations Department which was received by the Applicant on 11.9.2013 that the Minister has decided to refer the Employee’s Representation to the Industrial Court for adjudication. [23] The Applicant’s case is against this Reference. The Applicant’s case can be summarised in the following manner: [24] The Minister had misdirected himself in inappropriately exercising his discretion under Section 20 of the Act on the grounds that: i. The Minister had failed to properly appreciate the factual matrix of the case. In that the Minister had failed to consider facts which he ought to consider and had considered matters which ought not to consider; and; ii. The Minister had failed to identify that the case being a settlement vide a voluntary resignation to be a case unfit to be referred to the Industrial Court as it goes against the purpose and the policy of the Act itself. [25] Now, it is plain to this Court that the 2nd ground of contention of the Applicant can only be answered if the 1st ground of contention has been determined. Thus, this Court shall first delve into the underlying facts of this case and identify if there were indeed any misdirection on the part of the Minister in exercising his discretion under section 20(1) of the Act in referring the representation to the Industrial Court for adjudication. HAVE THE MINISTER PROPERLY APPRECIATE THE FULL FACTUAL MATRIX OF THE CASE? [26] There is little dispute on the underlying law and principle governing the Minister’s duty to examine and appreciate the full facts of the representations and report he received from the Director General of Industrial Relations regarding the dispute and the conduct of the conciliation meetings. [27] This Court is guided by the High Court decision in Chan Soon Lee v YB Menteri Sumber Manusia Malaysia & Anor [1998] 5 CLJ 133 at page 160: “Just as a workman is entitled to the said protection, similarly the law recognises the right of an employer to dismiss his workman with just cause or excuse. The minister when acting under s. 20(3) of the Act has to see that these two distinct rights are safeguarded based on the facts and material placed before him in the notification made to him by the director-general under s. 20(2) of the Act…the role of the minister is to ascertain whether on the facts and material placed before him, the representation raises serious questions of fact or of law calling for adjudication by the Industrial Court.” [28] On the same principle, the Employee in its submissions has referred to the Federal Court decision in Exxon Chemical (Malaysia) Sdn Bhd v Menteri Sumber Manusia Malaysia & ors [2007] 2 CLJ 97: “It meant that there should be an objective examination of the factual matrix available before the Minister in order to ascertain whether a reasonable person, in similar circumstances, would have arrived at the decision which the Minister had done.” [29] It is also a proof of a misdirection of a Minister’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 CLJ (Rep) 183 : “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have taken into account or vice versa; or has otherwise gone wrong in law.” [30] The Minister in his submission adds that the Minister in exercising his discretion in referring a representation to the Industrial Court should only consider facts and matters which were furnished to him by the DGIR and not to external facts which were raised after his exercise of discretion. The Minister fails to appreciate the fact that there was never a threat of dismissal vide an ultimate either to resign or be terminated OR the Minister has wrongfully considered the non-existent fact of an ultimatum or threat. [31] Against the vivid facts presented vide the Applicant’s Information form and Written representation the Minister surprisingly has misdirected himself in concluding a fact that the Employee was faced with an ultimatum either to resign or face termination in paragraph 14 of the Minister’s Affidavit in Reply. This is by and large not at all the fact underlying the Employee’s voluntary resignation. It is reiterated here that the tri-faceted Option instead offers the following options, WITHOUT any of the options drawing or risking an inevitable conclusion of termination/dismissal: i. Shape up and continue with the employment; or ii. Risk disciplinary actions should the same poor performance during employment is continued after the meeting; or iii. Voluntarily resign with added benefits should the Employee could not promise appropriate performance of her obligations under the Employment Contract. [32] The Option is immensely distinct from what was considered as fact by the Minister. The fact could not be more different. There was never a threat of termination/dismissal. In absence of such threat, it can never arise any allegation of forced resignation or termination. Essentially, the Employee would NOT face termination even if she should choose not to resign. The Minister is wrong in considering a misconceived fact that the settlement through resignation is instead a termination/dismissal [33] It is on the Employee’s own admission to not being able to perform her employment with consistent attendance that the Employee opted to resign with the added benefits from the settlement. Indeed there was a settlement here in which the Employee would be able to make the best out of the given circumstances that she is not able to perform her obligations under her Employment Contract. [34] Such resignation after being informed of poor performance is indeed a valid resignation. This Court is guided by the case of City-Link Express (M) Sdn Bhd v Greenson Dauk [2002] 3 ILR 1219: “He may be told of his failure to perform satisfactorily and/or of his misconduct and warned that his future prospects in the employer’s establishment are bleak if he does not shape up. The issue of resignation may well crop up. Where an employee who had been told of the several respects in which he has failed to perform, or to meet the standards of conduct expected of his employer, decides that it would be wise to make the best out of a bad situation and that it would be in his interest to resign it would be amatter of some difficulty for the court to find that the claimant left the employer because he had been forced to tender his resignation. To do so would be to ignore the reality of workplace dynamics and interaction between employer and employee.’’ [35] The above excerpt is verily similar and applicable to the present case. The Employee was informed of her poor performance, and upon realization that she could not perform her obligations the Employee herself saw that it is much more desirable to tender her resignation. Indeed this resignation is a valid resignation in settlement of the parties’ dispute. [36] Furthermore, the mere fact that the Applicant is the Employer of the Employee does not raise a presumption of undue influence/pressure to vitiate the valid voluntary resignation. The Court is guided by the High Court decision in Starhill Golf Resort Berhad v Mahkamah Perusahaan Malaysia & Anor [2000] 1 LNS 149: “There is no presumption of undue influence in an employer and employee relationship…” The Minister is wrong in considering the absence of warnings or show-cause by the Applicant [37] One of the grounds the Minister finds it fit to refer the representation to the Industrial Court was the fact that the Applicant never gave warnings or opportunity to show-cause to the Employee. (See paragraph 22(e) of the Minister’s Affidavit in Reply) [38] This clearly is an irrelevant fact to be considered. There’s no necessity for cautions or warnings as of yet. The report of the meeting clearly shows that these disciplinary actions would only become relevant if the Respondent should continue to be absent if she opted to continue employment from the Option. Thus, the question of proper warnings and show-causes is irrelevant in the present case as there were no future absenteeism committed since the Employee opted to voluntarily resign from her employment. The Minister admits to not having knowledge of salient facts leading up to the Employee’s voluntary resignation [39] It is indeed alarming that the Minister himself would admit to having no knowledge of salient facts which were already furnished to the DGIR and to his Office vide the Employer’s Information Form (Exhibit EVC-10 of the AIS) and the Applicant’s Written Representation (Exhibit EVC-1-A of the Applicant’s Affidavit in Reply to the Minister’s Affidavit). [40] The Minister had averred in paragraph 12 of his Affidavit in Reply that he has no knowledge of the matters averred in paragraphs 6 and 7 of the AIS. Paragraph 6 and 7 reveals a succinct statement of salient facts which led to the resignation of the Employee: “6. The 3rd Respondent had in the course of her employment often been late, absent without medical leave and without informing the Applicant and also leaving work early. This resulted in the Applicant having to make last minute arrangements for additional staff members to cover the 3rd Respondent’s classroom until her arrival at work… 7. The 3rd Respondent would also often ask to leave early in the afternoon…” [41] Similarly, the Minister had averred and admitted in paragraph 15 of his Affidavit in Reply to have no knowledge the salient facts set out in paragraph 11 of the AIS. Paragraph 11 of the AIS sets out and exhibits proof of payment of salary as per the agreed terms of the Employee’s voluntary resignation. (See EVC-7 of the AIS) [42] These were facts which were repeatedly echoed in the Information Form, Applicant’s Written Representation, and even on both of the Conciliatory Meetings held at the Industrial Relations Department. These facts largely culminate the whole reason the Employee was given the tri-faceted Option and also her voluntary resignation. [43] The mere fact that the Minister would admit to not know or not have any knowledge of these facts is a gross indication that indeed the Minister had not appreciated the full factual matrix of the case and has misdirected his discretion in making the reference. The Minister has wrongfully considered the fact that the resignation letter was drafted by the Applicant [44] The Minister has averred in paragraph 14 of his Affidavit in Reply that he has considered the fact that the resignation letter was drafted by the Applicant and not the Employee herself. [45] This is an irrelevant fact to be considered to determine the validity of the settlement vide the voluntary resignation of the Employee. This Court is guided by the High Court decision in Starhill Golf Resort Berhad v Mahkamah Perusahaan Malaysia & Anor [2000] 1 LNS 149 where the Court had held: “In this regard, the First Respondent (at pages 28 to 30 of the Award) had only considered the assertion of the Second Respondent as his proof of his involuntary resignation. The First Respondent in arriving at this conclusion had incorrectly taken into consideration the following matters:- (i) the preparation of the resignation letter by the Applicant…” [46] Thus, just the mere fact that the resignation letter was drafted by the Applicant and not the Employee does not denote a threat or a situation that the Employee is cornered to sign the resignation letter under protest. Therefore, this further adds to the overwhelming conclusion that the settlement in the resignation letter indeed is a valid and voluntary resignation. The Minister has failed to consider the fact that the Employee was given 2 days to consider the Option as a proof of voluntariness [47] The Minister has considered an untrue fact that despite the 2 days afforded to the Employee to consider the Option, the Employee was in a position cornered to resign or face termination. This fact is utterly untrue. Instead, the fact that the Employee is given time to consider the option, is a factor proving the voluntariness and validity of a resignation. This Court is guided by the case of Welted Knitwear Industries Sdn Bhd v Law Kar Toy [1998] 1 LNS 258: “To make out a case that her resignation was not voluntary and her resignation was obtained under undue influence, misrepresentation, fraud or the like, the employee has to establish that he was not allowed time to think over the matter...” See also Omron Electronics Sales and Services Sdn Bhd v Phoon Wai Kit & Anor [2010] 7 CLJ 372 HAS THE MINISTER MISDIRECTED HIS DISCRETION IN CONTRADICTING THE PURPOSE, OBJECT AND THE POLICY OF THE ACT ITSELF? The Minister has not exercised his discretion in promoting the purpose and policy for industrial harmony and settlement prescribed under the Act [48] The preamble of the Act stipulates the overriding policy, object and purpose of the Act to be: “An act to promote and maintain industrial harmony and to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.” [49] Precedents have even decided that the Minister must exercise his discretion in promoting such settlement of dispute. This Court is guided by the Federal Court decision in National Union of Hotel, bar and Restaurant Workers v Minister of Labour and Manpower [1980] 2 MLJ 189 at page 191: “Thus we must construe the Industrial Relations Act 1967, to determine its policy and object. It cannot be gainsaid that the intention of the Act is to regulate the relations between management and labour and to prevent and settle trade disputes arising therefrom.” [50] Furthermore, the Court of Appeal has also held in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 at page 61: “Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or settling the particular dispute; for that is what the Act is primarily aimed at…” [51] In fact, the Court of Appeal has recently decided in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377 that: “[31] More to the point at hand, we have judicial pronouncements which make it clear that the Minister’s exercise of discretion or administrative powers under the provisions of the IR Act must always be within the objectives of the legislation and the scope of his statutory responsibilities.” [52] Thus, upon the authorities above, it is clear that the Minister, in the face of the fact that the parties have reached to a mutual settlement of the dispute (in concluding and agreeing to the terms of the voluntary resignation) because of the Employee’s own admitted inability to guarantee proper performance of her employment, has misdirected himself in exercising his discretion against the objective, purpose and policy of the Act when he wrongfully concluded the fact that there is a question of fact and law that the resignation might be forced into or executed by the Employee in protest. [53] Again, the Employee was never under any threat of termination although if she opted to not resign. She even has the option to continue her employment save that she is able to perform her employment appropriately. Therefore, there never arose, any facts to indicate that there might be a question of fact or law that the resignation is involuntarily made to warrant reference to the Industrial Court. Vitiating such mutually agreed settlement of dispute would directly contradict the policy of the Act. There is no question of fact or law in the evidence of the Employee’s misconducts and poor performance [54] Now, although the Employee has raised contentions against the Applicant’s evidence of her tardiness and poor performance, it must be noted that these contentions were only made late in the Employee’s case. In that it was only raised in the Employee’s Affidavits but was never raised by the Employee in any of the meetings at the school and also the conciliatory meetings at the Industrial Relations Department. [55] The reports (exhibited and forwarded to the Industrial Relations Department by the Applicant) reveal that the Employee has never raised an inkling of protest against the allegation of tardiness and absenteeism during the meetings conducted on 15.2.2013 and 18.2.2013. [56] In fact, the Employee in her 1st Affidavit in Reply to the AIS has not averred any contention against the evidence led by the Applicant on her tardiness and misconduct during the conciliatory meetings on 29.5.2013 and 5.6.2013 in answering the Applicant’s AIS particularly on the facts of the conciliatory meetings in paragraphs 13 to 16 of the AIS. (See paragraph 9 of the Employee’s 1st Affidavit in Reply dated 9.8.2014 for the Employee’s reply to the Applicant’s averments regarding the conciliatory meetings) [57] Thus, it is safe to infer that the evidential question raised by the Employee in her Affidavits was a question which was never raised before the DGIR. Therefore, the Employee’s contention on the evidence led by the Applicant could never be a fact and/or contention which were reported by the DGIR and consequently furnished to the Minister for consideration. Thus, such evidential question is irrelevant to the consideration of the Minister as at the time of his exercise of his discretion, this line of fact and contention was never brought before him. Therefore, the Employee’s contention here cannot be considered by the Minister as a question of fact or law to warrant reference to the Industrial Court. This Court is guided by a case which was referred by the Minister in his submissions which is the case of Abdullah Azizi Abd Hamid v Menteri Sumber Manusia & Anor [1998] 2 CLJ 297 at pages 301 to 302: “He relies purely on the notification made to him by the Director General under sub-s. (2)…With the notification he would have before him naturally the report of the proceedings including whatever evidence both oral and documentary presented therein. Upon all these matters placed before him, the Minister would make a study and decide as to whether the representation is frivolous or vexatious. He is not allowed to consider other irrelevant matters not placed before him by the Director General. That being the case, what took place before the Director General during conciliation proceedings is crucial.” COURT’S FINDINGS [58] In light of all the deliberations above, it is this Court’s findings that there are overwhelming evidences that the Minister has misdirected himself in exercising his discretion, in that he has not considered facts which he ought to consider and vice versa, he has in the face of a clear settlement has contradicted the object, purpose and policy of the Act and has failed to apply proper rules of law in determining the validity of the Employee’s voluntary resignation. [59] It must be minded here that although the Minister has averred in his Affidavit has simply averred that he has considered all the facts brought forth to him from the DGIR, it is not necessarily sufficient to prove he has considered the full factual matrix of the case. Especially in circumstances (alike in the present case) where there are overwhelming evidences that the Minister has not properly appreciated the factual matrix of the case. COURT’S DECISION AND DIRECTIONS [60] In light of all of the above findings, it is this Court’s decision that the Applicant has successfully proven to this Court that the Minister had had in fact committed errors of law in arriving to his decision to refer the 3rd Respondent’s representation to the Industrial Court. Hence, this Court hereby grants the following relief: i. An Order of Certiorari to quash the Minister’s Reference dated 28.8.2013 On the issue of costs [62] The parties have agreed to an agreed costs of RM5,000.00. This Court hereby orders the Respondents do pay the Applicant sum of RM5,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 7th of day July, 2015 For the Applicant - Tetuan Lee Hishamuddin Allen & Gledhill Encik Amardeep Singh For the 1st Respondent - Pejabat Undang-Undang Negeri Selangor Cik Hani Haniza For the 3rd Respondent - Tetuan Bodipalar Ponnudurai De Silva Encik Anand Ponnudurai Cik Kamini 17

Tika 2.6.0

25-77-12/2013

PEMOHON THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD RESPONDEN 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. KATEIA MOHIEELDIN MOHAMMED ZAIED

07/07/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f6cc5413-1eb5-478c-80e8-75da5247dbfb&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA APPLICATION FOR JUDICIAL REVIEW NO: 25-77-12/2013 In the matter of a decision by the Minister of Human Resources, Malaysia which was stated in a letter from the office of the Ministry of Human Resources dated 28.8.2013 which was received on 11.9.2013; And In the matter of an application for an order of certiorari and prohibitory order; And In the matter of Section 20 of the Industrial Relations Act 1967 (Act 177); And In the matter of Order 53 Rules of Court 2012 BETWEEN THE BRITISH SCHOOL OF KUALA LUMPUR SDN BHD … APPLICANT AND 1. MENTERI SUMBER MANUSIA, MALAYSIA 2. MAHKAMAH PERUSAHAAN, MALAYSIA 3. KATEIA MOHIEELDIN MOHAMMED ZAIED ... RESPONDENTS GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] This is an application by the Applicant (The British School of Kuala Lumpur Sdn Bhd) for judicial review pursuant to Order 53 rule 3 of the Rules of Court 2012 (ROC 2012). The Applicant has sought from this Court inter alia for an order of Certiorari and an order of Prohibition against the 1st Respondent, the Minister of Human Resources (“Minister”) in referring (“Reference”) the representation (“Representation”) made by the 3rd Respondent (Kateia Mohieeldin Mohammad Zaied) who is the ex-employee of the Applicant (“Employee”) to the Industrial Court which is the 2nd Respondent for an Award or Decision. [2] Succinctly put, it is the Applicant’s case that the Minister had misdirected his discretion under section 20 of the Industrial Relations Act 1967 ( the Act) in making such Reference regarding a Representation which in essence allegedly is not a case fit to be referred to the Industrial Court. [3] The Applicant is a private co-educational international school which facilitates education based on the curriculum of England and Whales. [4] The Employee commenced her employment as a Nursery Teacher with the Applicant on 15.8.2009. (See exhibit EVC-1 of the Applicant’s Affidavit in Support (“AIS”)). [5] Thereafter, concerns and issues arose regarding the Employee’s alleged tardiness, absenteeism without notifying the Applicant and also leaving work early in her performance under the Employment Contract. Evidence of which has been categorically appended in Exhibit EVC-1-A of the Applicant’s Affidavit in Reply against the Minister’s Affidavit in Reply. (There are contentions made against these evidences by the Employee very late in her case (in her Affidavits in reply). This Court shall delve into these contentions later in this judgment) [6] Entailing her poor performance and absenteeism, a meeting was held late in 15.2.2013, the same day the Employee was absent from work for the 3rd time that week. One David Kirkham (“Witness”) was appointed to oversee and witness the meeting without a single iota of protest by either of the parties. During the meeting, the Employee was informed of the concerns, complaints and emails from parents who were concerned with their children’s education due to the Employee’s absenteeism and tardiness. Thereafter, the Employee was given a tri-faceted Option with 3 options to choose from (“Option”). The Option is NOT an ultimatum leading to termination or resignation [7] At this juncture, this Court must highlight that the option is not a simple 2 choices ultimatum. A simple appreciation of the full extent of the factual matrix would reveal that the Option was tri-faceted. The Option at any material time is NOT an ultimatum of either resign or be terminated/dismissed. Distinctively, the tri-faceted Option instead offers the following options, WITHOUT any of the options drawing an inevitable conclusion of termination/dismissal: i. Shape up and continue with the employment; or ii. Risk disciplinary actions if the same poor performance during employment is continued after the meeting; or iii. Voluntarily resign with added benefits should the Employee could not promise appropriate performance of her obligations under the Employment Contract. Warnings and show-causes are irrelevant [8] Furthermore, it must be highlighted here that the risk of disciplinary action is NOT with regard to the Employee’s past misconducts before the meeting, but instead the probable future continued misconduct should the Employee opts to continue with the employment. Thus, the question of proper warnings and show-causes is irrelevant in the present case as there are no future misconducts committed since the Employee opted to voluntarily resign from her employment. The tri-faceted Option has been reported in the following excerpt of the Witness’s Report. (See Exhibit EVC-5 of the AIS): “Adam asked Katya how did she think she was coping with the demand of the job and her husband’s current health situation, she said she was struggling but wanted to work. Adam explained to Katya that we were happy for her to continue in work but the current levels of absence…looked very likely to increase given her current situation. There had been verbal concerns raised by some of her class parents…and we received a letter from a concerned parent who…voiced her concerns over the disruption to this continued absence was having on her daughter in the class. Adam spoke very calmly and explained to Katya that from an employer’s point of view that continued absences over and above the current allocation…would lead to disciplinary action…He then showed her two examples of warnings that she could expect – failure to contact employer when absent and failure of duty of care. Adam suggested that if Katya wanted to look after her husband she could resign and not lose any benefits…He said he could try to get her pay until the end of term, with all her benefits. This was offered only as an option. Katya asked for time to talk it over with her husband. Adam agreed.” [9] After given time to consider the Option, another meeting was held to discuss the Employee’s decision over the Option given in the previous meeting with Adam and the Witness. This meeting was conducted on the immediate weekday after the previous meeting, on 18.2.2013 attended by the Witness, Emma Clearly (“Emma”) and the Employee. The Employee informed that she has already emailed her decision to resign to Adam even before the meeting. The conduct of the meeting was reported in the Witness’s report dated 27.5.2013 (see Exhibit EVC-4 of the AIS) and also Emma’s report of even date (see Exhibit EVC-5 of the AIS). Upon the Employee’s decision, Emma proceeded to draft the resignation letter which was later read and voluntarily signed by the Employee. Threat is irrelevant during the 18.2.2013 meeting [10] It must be highlighted at this juncture that any averment of threat during this meeting is verily irrelevant as the decision to resign as per the terms agreed was reached by the Employee even before the meeting itself vide the alleged email to Adam. Thus, it cannot be said that any statements during the meeting had cornered the Employee in making her decision to sign the resignation letter. [11] The terms of the voluntary resignation are as follows (see exhibit EVC-3 of the AIS): “i. The employment will officially end on Monday 18th February 2013. ii. The employee will be paid in full up until the end of academic term 2, Wednesday 22nd March 2013. iii. The employee will receive 2 business class one way flights to destination of choice.” [12] In compliance of the above resignation letter, the employee’s salary was paid (up to even 31.3.2013) into the Employee’s husband’s account on 26.3.2013, which was the usual payment arrangement between the Applicant and the Employee. [13] At this juncture, the overwhelming conclusion is already that there is a mutual settlement of the concerns between the Applicant and the Employee. [14] However, 10 days after the voluntary resignation, the Employee has issued a letter dated 28.2.2013 to the Applicant alleging that she was instead dismissed from her employment. (See Exhibit EVC-8 of the AIS): “I was further informed if I did not sign a particular document, I would be dismissed. Under these circumstances, I signed a document dated 18th February. This is to put on record that I consider the actions of the school as amounting to dismissal…” There is no threat leading the Employee to sign the resignation letter [15] Again, the assertion of threat is negated by the Employee’s own reported assertion that her decision to resign was already emailed to Adam even before the meeting on 18.2.2013. [16] The Employee proceeded to file a representation to the Industrial Relations Department. Following that representation the Applicant and the Employee were called for a conciliation meeting on 29.5.2013 vide a letter issued by the Industrial Relations Department. (See Exhibit EVC-9 of the AIS). [17] Following the letter calling for the conciliation meeting, the Applicant had duly furnished the Industrial Relations Department with the requisite Employer’s Information Form under section 20 of the Act. A simple scrutiny of this Information Form would show that the Applicant has sufficiently furnished all the facts underlying the Employee’s voluntary resignation covering the whole extent of the following: a. Employee’s tardiness, absenteeism and overall poor performance; “The employee had often been late, absent without medical leave and without informing the School and leaving work early throughout her employment. Furthermore, the Employee failed to submit an Assessment of her class in July 2011…” b. The first meeting on 15.2.2013 where the Employee was given the tri-faceted Option; “The Employee was absent on Friday 15.2.2013. This was the 3rd time that week that she was absent…At the said meeting…If the Employee continued being absent without informing the School, the School would have no choice but to commence disciplinary proceedings. The decision whether the Employee should resign or continue to work at the School with consistent attendance was left to the Employee…” c. Complaints and concerns of parents regarding Employee’s poor performance; “The School had received e-mails from parents who voiced their concerns on the unsettling effect of the Employee’s extended and unplanned absences on their child. Also, parents did e-mail the School as they were unhappy with the way the Employee handled their child concerning swimming lessons.” d. The fact that the Employee could not guarantee her consistent attendance to work; “The School asked the Employee how she would cope with the demands of her job and her husband’s ill health, as the School needed her to be consistent with her attendance at work. The employee advised that she could not guarantee her consistent attendance at work.” e. The fact that the Employee was given the whole weekend to consider the option; and “The decision whether the Employee should resign or continue to work at the School with consistent attendance was left to the Employee to mull over the weekend.” f. The fact that Employee was not dismissed and advised of her own voluntary resignation on 18.2.2013: “On 18.2.2013, the Employee advised the School that she had decided to resign from her employment with immediate effect.” [18] During the conciliation meeting, the Applicant has made a full and sufficient statement of fact underlying the Employee’s voluntary resignation. During this meeting, there was never any contention against the evidence of the Employee’s poor performance. The only contention raised by the Employee was that she was forced to the sign the resignation letter and she asked to be re-instated to her former occupation as a Nursery teacher with full salary and benefits. [19] Another conciliation meeting was conducted on 5.6.2013 in which the Applicant had furnished all the supporting documents and advised the Industrial Relations Officer of its decision to not reinstate the Employee. (See Exhibit EVC-11 of the AIS for the letter and enclosed supporting documents) [20] On 14.6.2013 the Applicant proceeded to furnish a written representation to the Industrial Relations Department echoing the material facts and contemporaneous documents of its contention with a request that the same would be represented to the Minister to enable him to exercise his duty under the Act. (See Exhibit EVC-12 of the AIS) [21] The same representation was informed to have been forwarded to the Industrial Relations Department in Putrajaya vide a letter dated 28.6.2013 which was received by the Applicant on 9.9.2013. (See Exhibit EVC-13 of the AIS) [22] Entailing the above, the Applicant was informed vide a letter dated 28.8.2013 from the Industrial Relations Department which was received by the Applicant on 11.9.2013 that the Minister has decided to refer the Employee’s Representation to the Industrial Court for adjudication. [23] The Applicant’s case is against this Reference. The Applicant’s case can be summarised in the following manner: [24] The Minister had misdirected himself in inappropriately exercising his discretion under Section 20 of the Act on the grounds that: i. The Minister had failed to properly appreciate the factual matrix of the case. In that the Minister had failed to consider facts which he ought to consider and had considered matters which ought not to consider; and; ii. The Minister had failed to identify that the case being a settlement vide a voluntary resignation to be a case unfit to be referred to the Industrial Court as it goes against the purpose and the policy of the Act itself. [25] Now, it is plain to this Court that the 2nd ground of contention of the Applicant can only be answered if the 1st ground of contention has been determined. Thus, this Court shall first delve into the underlying facts of this case and identify if there were indeed any misdirection on the part of the Minister in exercising his discretion under section 20(1) of the Act in referring the representation to the Industrial Court for adjudication. HAVE THE MINISTER PROPERLY APPRECIATE THE FULL FACTUAL MATRIX OF THE CASE? [26] There is little dispute on the underlying law and principle governing the Minister’s duty to examine and appreciate the full facts of the representations and report he received from the Director General of Industrial Relations regarding the dispute and the conduct of the conciliation meetings. [27] This Court is guided by the High Court decision in Chan Soon Lee v YB Menteri Sumber Manusia Malaysia & Anor [1998] 5 CLJ 133 at page 160: “Just as a workman is entitled to the said protection, similarly the law recognises the right of an employer to dismiss his workman with just cause or excuse. The minister when acting under s. 20(3) of the Act has to see that these two distinct rights are safeguarded based on the facts and material placed before him in the notification made to him by the director-general under s. 20(2) of the Act…the role of the minister is to ascertain whether on the facts and material placed before him, the representation raises serious questions of fact or of law calling for adjudication by the Industrial Court.” [28] On the same principle, the Employee in its submissions has referred to the Federal Court decision in Exxon Chemical (Malaysia) Sdn Bhd v Menteri Sumber Manusia Malaysia & ors [2007] 2 CLJ 97: “It meant that there should be an objective examination of the factual matrix available before the Minister in order to ascertain whether a reasonable person, in similar circumstances, would have arrived at the decision which the Minister had done.” [29] It is also a proof of a misdirection of a Minister’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 CLJ (Rep) 183 : “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have taken into account or vice versa; or has otherwise gone wrong in law.” [30] The Minister in his submission adds that the Minister in exercising his discretion in referring a representation to the Industrial Court should only consider facts and matters which were furnished to him by the DGIR and not to external facts which were raised after his exercise of discretion. The Minister fails to appreciate the fact that there was never a threat of dismissal vide an ultimate either to resign or be terminated OR the Minister has wrongfully considered the non-existent fact of an ultimatum or threat. [31] Against the vivid facts presented vide the Applicant’s Information form and Written representation the Minister surprisingly has misdirected himself in concluding a fact that the Employee was faced with an ultimatum either to resign or face termination in paragraph 14 of the Minister’s Affidavit in Reply. This is by and large not at all the fact underlying the Employee’s voluntary resignation. It is reiterated here that the tri-faceted Option instead offers the following options, WITHOUT any of the options drawing or risking an inevitable conclusion of termination/dismissal: i. Shape up and continue with the employment; or ii. Risk disciplinary actions should the same poor performance during employment is continued after the meeting; or iii. Voluntarily resign with added benefits should the Employee could not promise appropriate performance of her obligations under the Employment Contract. [32] The Option is immensely distinct from what was considered as fact by the Minister. The fact could not be more different. There was never a threat of termination/dismissal. In absence of such threat, it can never arise any allegation of forced resignation or termination. Essentially, the Employee would NOT face termination even if she should choose not to resign. The Minister is wrong in considering a misconceived fact that the settlement through resignation is instead a termination/dismissal [33] It is on the Employee’s own admission to not being able to perform her employment with consistent attendance that the Employee opted to resign with the added benefits from the settlement. Indeed there was a settlement here in which the Employee would be able to make the best out of the given circumstances that she is not able to perform her obligations under her Employment Contract. [34] Such resignation after being informed of poor performance is indeed a valid resignation. This Court is guided by the case of City-Link Express (M) Sdn Bhd v Greenson Dauk [2002] 3 ILR 1219: “He may be told of his failure to perform satisfactorily and/or of his misconduct and warned that his future prospects in the employer’s establishment are bleak if he does not shape up. The issue of resignation may well crop up. Where an employee who had been told of the several respects in which he has failed to perform, or to meet the standards of conduct expected of his employer, decides that it would be wise to make the best out of a bad situation and that it would be in his interest to resign it would be amatter of some difficulty for the court to find that the claimant left the employer because he had been forced to tender his resignation. To do so would be to ignore the reality of workplace dynamics and interaction between employer and employee.’’ [35] The above excerpt is verily similar and applicable to the present case. The Employee was informed of her poor performance, and upon realization that she could not perform her obligations the Employee herself saw that it is much more desirable to tender her resignation. Indeed this resignation is a valid resignation in settlement of the parties’ dispute. [36] Furthermore, the mere fact that the Applicant is the Employer of the Employee does not raise a presumption of undue influence/pressure to vitiate the valid voluntary resignation. The Court is guided by the High Court decision in Starhill Golf Resort Berhad v Mahkamah Perusahaan Malaysia & Anor [2000] 1 LNS 149: “There is no presumption of undue influence in an employer and employee relationship…” The Minister is wrong in considering the absence of warnings or show-cause by the Applicant [37] One of the grounds the Minister finds it fit to refer the representation to the Industrial Court was the fact that the Applicant never gave warnings or opportunity to show-cause to the Employee. (See paragraph 22(e) of the Minister’s Affidavit in Reply) [38] This clearly is an irrelevant fact to be considered. There’s no necessity for cautions or warnings as of yet. The report of the meeting clearly shows that these disciplinary actions would only become relevant if the Respondent should continue to be absent if she opted to continue employment from the Option. Thus, the question of proper warnings and show-causes is irrelevant in the present case as there were no future absenteeism committed since the Employee opted to voluntarily resign from her employment. The Minister admits to not having knowledge of salient facts leading up to the Employee’s voluntary resignation [39] It is indeed alarming that the Minister himself would admit to having no knowledge of salient facts which were already furnished to the DGIR and to his Office vide the Employer’s Information Form (Exhibit EVC-10 of the AIS) and the Applicant’s Written Representation (Exhibit EVC-1-A of the Applicant’s Affidavit in Reply to the Minister’s Affidavit). [40] The Minister had averred in paragraph 12 of his Affidavit in Reply that he has no knowledge of the matters averred in paragraphs 6 and 7 of the AIS. Paragraph 6 and 7 reveals a succinct statement of salient facts which led to the resignation of the Employee: “6. The 3rd Respondent had in the course of her employment often been late, absent without medical leave and without informing the Applicant and also leaving work early. This resulted in the Applicant having to make last minute arrangements for additional staff members to cover the 3rd Respondent’s classroom until her arrival at work… 7. The 3rd Respondent would also often ask to leave early in the afternoon…” [41] Similarly, the Minister had averred and admitted in paragraph 15 of his Affidavit in Reply to have no knowledge the salient facts set out in paragraph 11 of the AIS. Paragraph 11 of the AIS sets out and exhibits proof of payment of salary as per the agreed terms of the Employee’s voluntary resignation. (See EVC-7 of the AIS) [42] These were facts which were repeatedly echoed in the Information Form, Applicant’s Written Representation, and even on both of the Conciliatory Meetings held at the Industrial Relations Department. These facts largely culminate the whole reason the Employee was given the tri-faceted Option and also her voluntary resignation. [43] The mere fact that the Minister would admit to not know or not have any knowledge of these facts is a gross indication that indeed the Minister had not appreciated the full factual matrix of the case and has misdirected his discretion in making the reference. The Minister has wrongfully considered the fact that the resignation letter was drafted by the Applicant [44] The Minister has averred in paragraph 14 of his Affidavit in Reply that he has considered the fact that the resignation letter was drafted by the Applicant and not the Employee herself. [45] This is an irrelevant fact to be considered to determine the validity of the settlement vide the voluntary resignation of the Employee. This Court is guided by the High Court decision in Starhill Golf Resort Berhad v Mahkamah Perusahaan Malaysia & Anor [2000] 1 LNS 149 where the Court had held: “In this regard, the First Respondent (at pages 28 to 30 of the Award) had only considered the assertion of the Second Respondent as his proof of his involuntary resignation. The First Respondent in arriving at this conclusion had incorrectly taken into consideration the following matters:- (i) the preparation of the resignation letter by the Applicant…” [46] Thus, just the mere fact that the resignation letter was drafted by the Applicant and not the Employee does not denote a threat or a situation that the Employee is cornered to sign the resignation letter under protest. Therefore, this further adds to the overwhelming conclusion that the settlement in the resignation letter indeed is a valid and voluntary resignation. The Minister has failed to consider the fact that the Employee was given 2 days to consider the Option as a proof of voluntariness [47] The Minister has considered an untrue fact that despite the 2 days afforded to the Employee to consider the Option, the Employee was in a position cornered to resign or face termination. This fact is utterly untrue. Instead, the fact that the Employee is given time to consider the option, is a factor proving the voluntariness and validity of a resignation. This Court is guided by the case of Welted Knitwear Industries Sdn Bhd v Law Kar Toy [1998] 1 LNS 258: “To make out a case that her resignation was not voluntary and her resignation was obtained under undue influence, misrepresentation, fraud or the like, the employee has to establish that he was not allowed time to think over the matter...” See also Omron Electronics Sales and Services Sdn Bhd v Phoon Wai Kit & Anor [2010] 7 CLJ 372 HAS THE MINISTER MISDIRECTED HIS DISCRETION IN CONTRADICTING THE PURPOSE, OBJECT AND THE POLICY OF THE ACT ITSELF? The Minister has not exercised his discretion in promoting the purpose and policy for industrial harmony and settlement prescribed under the Act [48] The preamble of the Act stipulates the overriding policy, object and purpose of the Act to be: “An act to promote and maintain industrial harmony and to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.” [49] Precedents have even decided that the Minister must exercise his discretion in promoting such settlement of dispute. This Court is guided by the Federal Court decision in National Union of Hotel, bar and Restaurant Workers v Minister of Labour and Manpower [1980] 2 MLJ 189 at page 191: “Thus we must construe the Industrial Relations Act 1967, to determine its policy and object. It cannot be gainsaid that the intention of the Act is to regulate the relations between management and labour and to prevent and settle trade disputes arising therefrom.” [50] Furthermore, the Court of Appeal has also held in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 at page 61: “Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or settling the particular dispute; for that is what the Act is primarily aimed at…” [51] In fact, the Court of Appeal has recently decided in Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377 that: “[31] More to the point at hand, we have judicial pronouncements which make it clear that the Minister’s exercise of discretion or administrative powers under the provisions of the IR Act must always be within the objectives of the legislation and the scope of his statutory responsibilities.” [52] Thus, upon the authorities above, it is clear that the Minister, in the face of the fact that the parties have reached to a mutual settlement of the dispute (in concluding and agreeing to the terms of the voluntary resignation) because of the Employee’s own admitted inability to guarantee proper performance of her employment, has misdirected himself in exercising his discretion against the objective, purpose and policy of the Act when he wrongfully concluded the fact that there is a question of fact and law that the resignation might be forced into or executed by the Employee in protest. [53] Again, the Employee was never under any threat of termination although if she opted to not resign. She even has the option to continue her employment save that she is able to perform her employment appropriately. Therefore, there never arose, any facts to indicate that there might be a question of fact or law that the resignation is involuntarily made to warrant reference to the Industrial Court. Vitiating such mutually agreed settlement of dispute would directly contradict the policy of the Act. There is no question of fact or law in the evidence of the Employee’s misconducts and poor performance [54] Now, although the Employee has raised contentions against the Applicant’s evidence of her tardiness and poor performance, it must be noted that these contentions were only made late in the Employee’s case. In that it was only raised in the Employee’s Affidavits but was never raised by the Employee in any of the meetings at the school and also the conciliatory meetings at the Industrial Relations Department. [55] The reports (exhibited and forwarded to the Industrial Relations Department by the Applicant) reveal that the Employee has never raised an inkling of protest against the allegation of tardiness and absenteeism during the meetings conducted on 15.2.2013 and 18.2.2013. [56] In fact, the Employee in her 1st Affidavit in Reply to the AIS has not averred any contention against the evidence led by the Applicant on her tardiness and misconduct during the conciliatory meetings on 29.5.2013 and 5.6.2013 in answering the Applicant’s AIS particularly on the facts of the conciliatory meetings in paragraphs 13 to 16 of the AIS. (See paragraph 9 of the Employee’s 1st Affidavit in Reply dated 9.8.2014 for the Employee’s reply to the Applicant’s averments regarding the conciliatory meetings) [57] Thus, it is safe to infer that the evidential question raised by the Employee in her Affidavits was a question which was never raised before the DGIR. Therefore, the Employee’s contention on the evidence led by the Applicant could never be a fact and/or contention which were reported by the DGIR and consequently furnished to the Minister for consideration. Thus, such evidential question is irrelevant to the consideration of the Minister as at the time of his exercise of his discretion, this line of fact and contention was never brought before him. Therefore, the Employee’s contention here cannot be considered by the Minister as a question of fact or law to warrant reference to the Industrial Court. This Court is guided by a case which was referred by the Minister in his submissions which is the case of Abdullah Azizi Abd Hamid v Menteri Sumber Manusia & Anor [1998] 2 CLJ 297 at pages 301 to 302: “He relies purely on the notification made to him by the Director General under sub-s. (2)…With the notification he would have before him naturally the report of the proceedings including whatever evidence both oral and documentary presented therein. Upon all these matters placed before him, the Minister would make a study and decide as to whether the representation is frivolous or vexatious. He is not allowed to consider other irrelevant matters not placed before him by the Director General. That being the case, what took place before the Director General during conciliation proceedings is crucial.” COURT’S FINDINGS [58] In light of all the deliberations above, it is this Court’s findings that there are overwhelming evidences that the Minister has misdirected himself in exercising his discretion, in that he has not considered facts which he ought to consider and vice versa, he has in the face of a clear settlement has contradicted the object, purpose and policy of the Act and has failed to apply proper rules of law in determining the validity of the Employee’s voluntary resignation. [59] It must be minded here that although the Minister has averred in his Affidavit has simply averred that he has considered all the facts brought forth to him from the DGIR, it is not necessarily sufficient to prove he has considered the full factual matrix of the case. Especially in circumstances (alike in the present case) where there are overwhelming evidences that the Minister has not properly appreciated the factual matrix of the case. COURT’S DECISION AND DIRECTIONS [60] In light of all of the above findings, it is this Court’s decision that the Applicant has successfully proven to this Court that the Minister had had in fact committed errors of law in arriving to his decision to refer the 3rd Respondent’s representation to the Industrial Court. Hence, this Court hereby grants the following relief: i. An Order of Certiorari to quash the Minister’s Reference dated 28.8.2013 On the issue of costs [62] The parties have agreed to an agreed costs of RM5,000.00. This Court hereby orders the Respondents do pay the Applicant sum of RM5,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 7th of day July, 2015 For the Applicant - Tetuan Lee Hishamuddin Allen & Gledhill Encik Amardeep Singh For the 1st Respondent - Pejabat Undang-Undang Negeri Selangor Cik Hani Haniza For the 3rd Respondent - Tetuan Bodipalar Ponnudurai De Silva Encik Anand Ponnudurai Cik Kamini 17

Tika 2.6.0

22-68-2009

PLAINTIF 1. DATO’ ONG JYH JONG 2. GOH CHING CHEE 3. HO CHAI YOONG 4. GO LEE BIN 5. LILY NEO 6. LOW YIK CHOON 7. LOH KOON YIN 8. LEE KONG FOO 9. SIM SWEE YOKE 10. LIM HONG TAT DEFENDAN VALENCIA DEVELOPMENT SDN. BHD.

26/06/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=618e2c95-d232-48c3-8406-7ed942364eba&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : MT2-22-68-2009 BETWEEN 1. DATO’ ONG JYH JONG 2. GOH CHING CHEE 3. HO CHAI YOONG 4. GO LEE BIN 5. LILY NEO 6. LOW YIK CHOON 7. LOH KOON YIN 8. LEE KONG FOO 9. SIM SWEE YOKE 10. LIM HONG TAT …. PLAINTIFFS AND VALENCIA DEVELOPMENT SDN. BHD. .… DEFENDANT GROUNDS OF JUDGMENT (After full trial) BACKGROUND FACTS [1] The present case is relatively an uncomplicated case. Though laced with a number of technical issues, the present case is simply a claim for specific performance by the Plaintiffs against the Defendant in enforcing an alleged agreement or agreements which the Plaintiffs claim to have been entered into with the Defendant. [2] All the Plaintiffs collectively are prospective purchasers to the Defendant’s residential development in Sungai Buluh also known as “Valencia Development”. This development was later named as the SOHO Residences consisting of 28 units of 3 storey terrace houses. It was these residences which the Plaintiffs were interested in purchasing (“properties”). [3] The Defendant is a private limited company incorporated in Malaysia under the Companies Act 1953 which undertook the residential development project in building and selling the properties. [4] Originally there were ten Plaintiffs initiating this civil suit against the Defendant, however later the 6th, 7th, 9th and 10th Plaintiffs had withdrawn their suit and hence, the trial of this action is only with regards to the 1st Defendant (Dato” Ong Jyh Jong), 2nd Defendant (Goh Ching Chee), 3rd Defendant (Ho Chai Yoong), 4th Defendant (Go Lee Bin), 5th Defendant (Lily Neo) and 8th Defendant (Lee Kong Foo). All the six Plaintiffs who have proceeded with this action shall hereinafter in this judgment be referred as “the Plaintiffs”. [5] In pursuit of their interest to purchase, the Plaintiffs (except the 3rd Plaintiff) have each issued the Appointment Letters (“1st Appointment Letters”) on different dates in 2006 to the Defendant vide their Appointment as Solicitors Letters addressed to Swan & Partners (“Swan”). However, the 2nd and 3rd Plaintiffs have later authorised Swan to act on their behalf vide their Purchase Application Form. (See pages 1 to 12 and 97 to 98 of Bundle B1 for the relevant 1st Appointment Letters and Purchase Application Forms). [6] These 1st Appointment Letters all echo similar terms across all the properties and parties involved. The salient terms of the 1st Appointment Letters are reproduced here: “I/We wish (in the present case, the Plaintiffs) however, to irrevocably appoint and authorise you (in the present case, Swan) as my/our solicitors to:- a) grant to the Developer (in the present case, the Defendant) an Option valid until August 2006 (“Option Period”) to accept my/our irrevocable offer to purchase the said Property from the Developer at the selling price not exceeding RM546,840 (“Option”) on the terms and conditions as discussed and explained by you to me/us; b) grant to the Developer an automatic extension period of three (3) months from the date of expiry of the Option Period (“Extension Option Period); c) accept from me/us an earnest deposit of RM30,000.00 only (“Earnest Deposit”) as stakeholders to be placed in an interest bearing deposit with a financial institution of your choice to the credit of my/our account pending the exercise of the Option by the Developer; d) pay the Earnest Deposit together with the accrued interest to the Developer if and when the Developer exercises the Option and accepts my/our offer to purchase the said Property” [7] A plain reading of the terms above would easily reveal that the Option (“1st Option”) given by the Plaintiffs to the Defendant to exercise an option/election to sell if so the Defendant indeed opted to accept the Plaintiff’s offer. [8] From the outset, it must be noted that the configuration of the Options in this case is verily peculiar and different to the masses of Options which had reached the Courts for determination. The 1st Options in the present case rather than granting the purchaser an option/election to purchase instead grant the vendor an option/election to sell. [9] Swan on different dates in 2006 after the 1st Appointment Letters were issued, has issued options the 1st Options on behalf of the Plaintiffs confirming that Swan acts for the interested purchasers (the Plaintiffs), that the Plaintiffs vide Swan grants to the Defendant options/election to sell, and also that the Earnest Deposit of RM30,000.00 (“sum”) has been paid to Swan as stakeholders. The letters all similarly read (see pages 13 – 15 and 16 – 18, 183 – 185, 186 – 188, and 189 – 191 of Bundle B1 for the 1st Options): “We act for (insert relevant Plaintiff) who are interested in purchasing (insert relevant property) comprised in the housing development in Valencia, Sungai Buloh. We are pleased to inform that an earnest deposit of Ringgit Malaysia Thirty Thousand (RM30,000.00) only … has been deposited by our client with us stakeholders.” [10] However, as far as the payment goes, there is only proof of payment of the RM30,000.00 sum to the Swan as stakeholder. It remains undisputed that there is no proof that the RM30, 000.00 sum held by Swan was consequently paid with interest accrued to the Defendant. [11] The salient terms and conditions of the 1st Options issued by the Plaintiffs to the Defendant are: “We act for (insert relevant Plaintiff) who is interested in purchasing a unit of SOHO RESIDENCES… We are pleased to inform you that…with instructions…to irrevocably grant you an option to accept our client’s offer to purchase…upon the terms and subject to the conditions set out hereunder 1) This Option may be exercised by you (in the present case, the Defendant)… 2) The Option may be exercised by you issuing to us (in the present case, Swan) for our client (in the present case, the Plaintiffs) in writing hereinafter referred to as “the Notice of Exercise of Option”… [12] Furthermore, it must be noted that the Plaintiffs has owned up and acknowledged all the representations made by Swan in the 1st Options. The Plaintiffs has never shown or expressed any disagreements against the representations of the 1st Options, particularly to the representation that Swan acts for the Plaintiffs. [13] After the expiry of the 1st Option, on 8.6.2007, the Defendant issued a letter to Swan informing of the expiration and enquired of the Plaintiffs would issue a fresh Option if they were still interested to purchase the properties. (See page 21 of Bundle B1). [14] The Plaintiffs in turn, acknowledged as well as admitted the 1st Option’s expiration and consequently issued fresh appointment letters (on different dates around September 2007) authorising Swan to act as their solicitors and to grant the Defendant a fresh Option (“2nd Appointment Letters”). The terms and content of the 2nd Appointment Letters are similar to the 1st Appointment Letters. (See pages 22 – 25, 28 – 31, and 34 – 39 of Bundle B1 for the 2nd Appointment Letters). [15] For the 2nd time around, the Plaintiffs issued fresh Options around November 2007 (“2nd Options”) confirming that Swan acts for the Plaintiffs and that following the earlier payment of RM30,000.00 sum, the Plaintiffs has paid the Earnest Deposit to Swan as a stakeholder before and pending the Defendant’s exercise of the 2nd Options. The terms of these 2nd Options are similar to that of the 1st Options. (See pages 40 – 54, 58 – 60, and 196 – 198 of Bundle B1 for the 2nd Options). [16] Similar to the 1st Options, it must be noted that the Plaintiffs had owned up and acknowledged all the representations made by Swan in the 2nd Options. The Plaintiffs had never shown or expressed any disagreements against the representations in the 2nd Options, particularly to the representation that Swan acts for the Plaintiffs. [17] However, against the 2nd Options the Defendant has expressly rejected the 2nd Options. The Defendant vide its letter dated 17.6.2008 has informed Swan that it is unable to accept the Plaintiffs’ 2nd Options and therein suggested Swan to advise their clients (the Plaintiffs) to withdraw their offers. The main passage of the letter is reproduced below for convenience (see page 64 of Bundle B1): “We write to inform that we are unable to accept your Client’s offer to purchase a unit in the abovementioned Phase… In the circumstances, you may wish to advise your Clients to withdraw their offer to us.” [18] Consequently, Swan has issued letters informing the Plaintiffs of the Defendant’s rejection and also the refund of the RM30,000.00 held by Swan as stakeholder for the Plaintiffs (“Refund Letters”) (see pages 65, 67, 70, 71, 74, 80, and 86 of Bundle B1 for the Refund Letters). [19] A few months following the refund, the Defendant has invited the Plaintiffs to the pre-launch of the properties in November 2008. Suddenly, after the pre-launch, the Plaintiffs on different dates in December 2008 has fallen back to the 1st Options, and issued cheques of to the amount of 10% of the prices indicated in the 1st Options vide Chur & Associates, the Plaintiffs’ other solicitors at that point in time. The Defendant has returned all of the cheques sent on the grounds that the cheques are insufficient as they are based on the 1st Options which have already lapsed and were not exercised by the Defendant. Following this refusal by the Defendant is the Plaintiffs’ cause of action for specific performance to order the Defendant to honour their so-called obligations under the 1st and 2nd Options (“Options”) which the Plaintiff claims to be a binding agreement. PLAINTIFFS’ CASE [20] The Plaintiffs’ case is simply that: a. The Plaintiffs are allegedly the receivers of the Options and the option-holders. b. As the alleged option-holders, the Plaintiffs have exercised the 1st Option and alternatively the 2nd Option upon allegedly furnishing valuable consideration (in the RM30,000.00 sum payment) to the Defendant. The payment of the RM30,000.00 sum shall be deemed as a deposit or alternatively a booking fee paid to the Defendant. c. Swan is actually the alleged solicitors acting for and/or on behalf of the Defendant and thus holds the RM30, 000.00 sum as stakeholders for the Defendant. d. Upon the Plaintiffs’ alleged exercise of the Options, the Options now allegedly become binding agreements in which the Defendant must perform upon attaining the Advertisement Permit and Developer’s License (“APDL”) under the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulations 1989. e. The Defendant owes the duty to perform their alleged obligations under the alleged agreements to the Plaintiffs. DEFENDANT’S CASE [21] On the contrary, the Defendant’s case is simply that: a. The Defendant is allegedly the receivers of the Options and the option-holders. b. As the option-holders, the Defendant has never exercised the Options which were granted by the Plaintiffs. c. The payment of the RM30,000.00 sum was never paid to the Defendant, but instead was only paid to Swan as the Plaintiffs’ stakeholder. d. The payment of the sum to Swan as the Plaintiffs’ solicitor cannot in any manner be deemed an exercise of the Options particularly considering that the Plaintiffs are not the option-holders. e. The payment of the sum is not at any material time a deposit or booking fee allegedly paid to the Defendant. The payment of the sum to the Plaintiff’s own stakeholder is not a valuable consideration furnished to the Defendant. f. Swan is actually the alleged solicitors acting for and/or on behalf of the Plaintiff and thus holds the RM30,000.00 sum as stakeholders for the Plaintiff. g. The Options were never exercised and thus, have never elevated to be Agreements. The attainment of the APDL is never a condition precedent to any contract as there is no contract to begin with. h. The Defendant never owes any duty to perform any obligations as there has never been any conclusion of a binding contract between the parties. [22] Upon the stances of the parties above, the pivotal issues to be determined can be encapsulated in the following issues: (a) Which party is the option-holder as under the Options? i. which party may exercise the Options? (b) Are the Options binding as Agreements? i. To whose benefit did Swan held the sum for as stakeholder? ii. Are the payments of the sum a proof of an exercise of the Options escalating the Options into Agreements? ISSUE (a): WHICH PARTY IS THE OPTION-HOLDER AS UNDER THE OPTIONS? [23] It is noted that the majority of the parties’ submission is on the payment of the sum and whether the payment of the sum becomes proof of a binding Agreement. [24] This question goes along the assumption that the option-holders are the Plaintiffs, which this Court at this juncture has yet to make a finding over. Thus, the more pertinent question to be determined is which of the parties is/are the option-holder(s) based on the Options. [25] It must be noted that the documents referred by the Plaintiffs as agreements, and by the Defendant as Options are indisputably and ultimately Options. The Plaintiffs’ case is that these Options have been exercised by the Plaintiffs as the alleged option-holder. In fact, the Plaintiffs themselves have relied on a barrage of authorities in arguing that the conferment of consideration escalates an Option into a binding agreement. Thus, this Court is of the view that it is unnecessary for the Court to delve deeply in defining the documents when all parties have already agreed that the documents are essentially Options. A plain reading of the Options and all other masses of contemporaneous documents would reveal that both parties agree that the documents are indeed Options. The clear designation and stipulation of the Options and Appointment Letters [26] It is unnecessary actually for this Court to go beyond the written terms of the Options to determine the intended option-holder. The words from the 1st and 2nd Appointment Letters and the Options are clear without any shade of ambiguity. Amidst all of the Plaintiffs’ contentions on the argument that the Plaintiffs are the option-holder, merely because allegedly the Plaintiffs have paid a deposit sum, the clear terms and wordings of the Options and Appointment Letters does not beckon the Court’s attention to even consider anything else besides the Options and Appointment Letters. The relevant term in the Options is reproduced here: “I/We wish (in the present case, the Plaintiffs) however, to irrevocably appoint and authorise you (in the present case, Swan) as my/our solicitors to:- a) grant to the Developer (in the present case, the Defendant) an Option valid until August 2006 (“Option Period”) to accept my/our irrevocable offer to purchase the said Property from the Developer at the selling price not exceeding RM546,840 (“Option”) on the terms and conditions as discussed and explained by you to me/us; b) grant to the Developer an automatic extension period of three (3) months from the date of expiry of the Option Period (“Extension Option Period); [27] In coherence to the Appointment Letters, the relevant term of the Options are reproduced here: “We act for (insert relevant Plaintiff) who is interested in purchasing a unit of SOHO RESIDENCES… We are pleased to inform you that…with instructions…to irrevocably grant you an option to accept our client’s offer to purchase…upon the terms and subject to the conditions set out hereunder 1) This Option may be exercised by you (in the present case, the Defendant)… 2) The Option may be exercised by you issuing to us (in the present case, Swan) for our client (in the present case, the Plaintiffs) in writing hereinafter referred to as “the Notice of Exercise of Option”… [28] There is no room for a single inkling of doubt to the probability of the Defendant’s case that indeed the option-holder is the Defendant and not the Plaintiffs. The Appointment Letters and the Options clearly show that the movement of the Options is from the Plaintiffs (as grantors) to the Defendant (grantee and option-holder) which the Defendant may later exercise the Options. [29] This Court is guided by the case of Syarikat Binaan Utara Jaya ( A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50, Abdul Malik Ishak, JCA from the available authorities had in para 17 of the Court of Appeal’s judgment, with regard to construction of a contract where the language employed is clear, has made the following propositions: “(a) the Court must give effect to the plain meaning of the words, no matter how distasteful the result may be (The Central Bank of India Ltd. Amritsrar v. The Hartford Fire Insurance Co. Ltd. [1965] AIR Vol. 52, 1288 SC); (b) where the language in the document is unambiguous and clear, the real nature of the document is to be determine solely by looking at its contents, uninfluenced by any intention of the parties ((Nawab Major Sir) Mohammad Akbar Khan v. Attar Singh and Others [1936] AIR Vol. 23, 171 PC); (c) when the minds of the parties are expressed in an unambiguous manner, the Court cannot override the declared intention of the parties unequivocally expressed (K. Appukuttam Panicker and Another v. S.K.R.A.K.R Athappa Chettiar and Others [1966] AIR Vol.53, 303 Kerala); and (d) there is no scope, at all, for drawing upon hypothetical considerations or the supposed intention of the parties when the words contained in the contract are clear and unambiguous (The Union of India v. Kishorilal Gupta and Bros. [1959] AIR Vol. 46, 1362 SC).” Furnishing consideration does not determine or identify the option-holder [30] The Plaintiffs albeit fallible, have attempted to argue that the payment of consideration of a party determines or identifies that party as the option-holder. In attempting so, the Plaintiffs referred to the Federal Court decision in Subramaniam Chettiar & Ors v JC Chang Ltd [1969] 2 MLJ 176 (FC). However, in reading and examining this decision, it is this Court’s considered view that the preposition given by the Plaintiff is not at all the principle which was upheld in Subramianiam Chettiar’s case. The Plaintiffs’ feeble contention hinges on this passage: “If the option is not by deed, therefore, the grantee of the option must give some consideration quite apart from anything which he may have to do should he exercise the option” [31] Respectfully, preposition afforded by the Plaintiffs is an incorrect or a misconceived interpretation of the case which is taken out of the actual context of the decision. The principle in this case does not dictate that the option-holder must be the party who has given valuable consideration. This was not the principle propounded in this case at all. [32] What was really held was only that a grantee must give valuable consideration in order to make the option a binding contract. It does not at all lay down a precedent of a standard or a set configuration that a party giving consideration is automatically the grantee/option holder. [33] This Court is of the considered view that merely being the party furnishing consideration does not automatically assigns that party in the shoes of the grantee/option-holder. It is up to the parties to an option to dictate the terms of the options. And evidently so, the construction of the option is clearly that the Plaintiffs/prospective purchaser granting the Defendant/vendor an option which is an election to sell within a stipulated time. [34] It must be noted that the configuration of the Options in the present case is rather peculiar and different from normal Options. It is already clearly agreed by the parties in the present case that the grantor (the Plaintiff) is the party furnishing the RM30,000.00 sum. The case of Subramaniam Chettiar should be distinguished from the present case. [35] In fact, the case of Subramaniam Chettiar is by far, verily distinguishable with the present case. The illustration which forms the fulcrum of the Federal Court’s decision in the case referred, is thoroughly different from the present case. The illustration given there was: A (vendor/grantor ie. the Defendant) agrees with B (purchaser/grantee ie the Plaintiffs), upon B paying monies as consideration to A, B is entitled to exercise the option within one month to inform of B’s election to purchase and inform of B’s election to A. However, the present case’s option is indeed different: B (purchaser/grantor) agrees to give A (vendor/grantee) an entitlement of option/election to sell to B within one month time in which B may exercise the option to elect to sell or otherwise. [36] The Subramaniam Chettiar case stipulates that the principle propounded in that case is for a case: “of an option for valuable consideration to purchase, the matter is altogether out of the vendor’s hand” [37] This is a case (Subramaniam Chettiar’s case) applicable to an option to purchase which is verily different from the present case where the vendor (the Defendant) was granted an option to sell. Thus, it is clear here that the Federal Court decision in Subramaniam Chettiar, is distinguishable and should be distinguished in the present case. Admission of Plaintiffs’ own witness on the designation of the Option-holder [38] Even the Plaintiffs’ own witness (PW8, Tan Chur Pin of Chur & Associates) has contradicted the Plaintiffs’ case and admitted that the option was granted to the Defendant and that the option-holder is indeed the Defendant. PW8 is one of the Plaintiffs’ own solicitors. The relevant excerpt of PW8’s admission and contradiction is reproduced below: “Q. Do you agree that based on this letter, an option is granted by Dato’ Ong to the developer? A. Yes Q. So, do you agree with me, based on your earlier testimony, that the developer would be termed, in commercial terms, the option holder? A. Yes” The illogicality of an option-holder issuing and receiving an option against himself [39] It is undisputed here that upon the expiration of the 1st Option, the Plaintiffs upon enquiry have issued the 2nd Option. This particular issuance of Options makes no logical or commercial sense if the Court were to accept that the Plaintiffs are the option holders (which this Court does not accept). The rhetorical question then would be ‘why would an option-holder be asked to issue a fresh option and issued a fresh option to his or her own self?’ It does not make sense that a person receiving the option is the same person who is granting the option. Hence, this adds to the improbability of the Plaintiff’s case in this regard. COURT’S FINDINGS ON ISSUE (a) [40] The option is exercisable when the Defendant exercises the option. Unilaterally paying the deposits to their own solicitor does not actuate the exercise of the Option to any extent. [41] In view of the above, it is this Court’s considered view that the option holder under the Options is without a doubt is the Defendant. Thus, the only party which would hold the option to exercise the Options is the Defendant and not at any point in time the Plaintiffs. ISSUE (b): ARE THE OPTIONS BINDING AS AGREEMENTS? [42] The parties’ contentions on the effect of the Options revolve around the question whether or not the Options have been exercised. Particularly on the payment of the RM30, 000.00 sum to Swan. [43] Nonetheless, this Court it must be noted that entailing from the earlier finding that the Defendant is the option holder, from to outset the Plaintiffs can no longer contend that the payment of the sum to Swan is proof of the Plaintiffs’ exercise of the Options. The Plaintiffs are not the option holder and thus, are not in any position to exercise the Options. [44] Nonetheless, for the sake of completeness, this Court shall still delve into the documents and the submissions of the parties. Specific manner of exercising the Options: absence of proof of exercise [45] Amidst the contentions regarding the payment of the sum being a proof of exercise of the Options, it is more relevant and proper for this Court to examine the documents which entail the relationship of the parties which are the Options. [46] A simple and plain reading of the Options which even the Plaintiffs themselves intend to enforce, would already reveal that there is a specific manner in which the Defendant must adhere to if it intends to exercise the Options. “2) The Option may be exercised by you issuing to us (in the present case, Swan) for our client (in the present case, the Plaintiffs) in writing hereinafter referred to as “the Notice of Exercise of Option”…” [47] The terms of the Options and Appointment Letters are mutually agreed, in full volition of the parties. No party particularly the Plaintiffs, who granted the Options, should be allowed to feign ignorance that they do not understand the Options and its content at the time it was signed. [48] This Court is taken aback by the bold contention of the Plaintiffs in their testimony that they readily admit that they did not read the Options and Appointment Letters when signing the documents. It is a steady stance which is reflected in all of the Plaintiffs’ witnesses. [49] However, this Court cannot protect and condone such lackadaisical and ignorant attitude towards a signed written document. It would be unbecoming if this Court would allow signatories to excuse themselves from the covenants agreed and contained in a document merely because of their own ignorance to understand and read what they are signing even after affording the opportunity to read understand the covenants. [50] The Appointment Letters and the Options were handed to the Plaintiffs. Albeit if it is a standard operating procedure or not, it does not negate the fact that before the signing of the Appointment Letters and Options, the Plaintiffs are at liberty to read, scrutinize and understand the content of the documents. And upon the same liberty, the Plaintiffs should read and understand the content. Signing the documents indicates agreement and understanding of the Plaintiffs to the contents of the documents. [51] This Court is guided by the decision of Gill J in Subramaniam v Retnam [1966] 1 MLJ 172 referred to by the Defendant: “For my saying so I find support in the following statement of the law. with which I respectfully agree, in the judgment of Wood Ag. C.J., in Ismail bin Savoosah & Ors v Hajee Ismail: “It was argued that the defendant being ignorant of the English language he is to be excused on that account from the performance of his contract, but it is to my mind clear that in the common principles which govern the law of contract, the person who contracts by a written document, whether or not he understands the language in it is written, is bound, in the absence of fraud and misrepresentation, by the terms of that contract,…”(emphasis added) [52] This Court will also refer to two other cases relating to this issue. In the case of Chai Then Song v Malaysia United Finance Bhd [1993] 2 CLJ 640, James Foong J (as he then was) held inter alia: [1] A person who chose to be careless, or not bothered to find out the contents of a document, or who relied completely upon others to complete the same, is responsible for his own actions and he is prevented from denying that the contents of the document do not bind him. [53] James Foong J in Chai Then Song’s case had referred to the House of Lords’ decision in the case of Saunders v Angelia Building Society [1971] AC 1004. At page 642 of his judgment James Foong J had said this: “Now turning to the fundamental point on this issue of the appellant executing on a Deed of Guarantee with relevant parts therein left blank and, where this similarly applies to the Hire Purchase Agreement the learned Magistrate relied on the case of Saunders v. Angelia Building Society [1971] AC 1004. This case is better known as Gallie v. Lee, a House of Lords decision which held that: A person who signs a document parts with it so that it may come into other hands, has a responsibility, that of a normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor.” [54] The Court of Appeal in the case of Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn Bhd [2010] 4 CLJ 203, Abdul Malik JCA in supporting Low Hop Bing JCA’s judgment (delivering the judgment of the Court of Appeal) at paragraphs 35, 36 and 37 had said: “[35] The purchase order was signed and accepted by the plaintiff and at the bottom left side of the said purchase order the following caption appeared: We have read and agreed to the sales conditions stated overleaf. [36] That would seal the fate of the plaintiff. In L’Estrange v F. Graucob, Limited [1934] 2 KB 394, at p.403, Scrutton LJ aptly said and which would surely apply to the plaintiff: When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not. [37] Thus, a person who signs a contractual document is bound by its terms even though he has not read it......” (emphasis added) [55] The Plaintiffs in the present case cannot now come to this Court and assert that they did not read the documents at all, are ignorant of the terms of the documents which are in English language, were misrepresented of the terms of the documents and do not understand the contents the Appointment Letters / Options which were handed to them. Even more so, considering the Plaintiffs’ backgrounds which are itemised below: 1st Plaintiff - Chief Executive Officer of ABBDA Aviation Corporation (who had previously bought properties from the Defendant). 2nd Plaintiff - the 3rd Plaintiff’s husband. He retired early to help the 3rd Plaintiff to run their Real Estate Agency. 3rd Plaintiff - Principal of a Real Estate Agency (Both the 2nd and 3rd Plaintffs had also previously bought properties from the Defendant) 4th Plaintiff- Interior Designer and Consultant (Both 4th Plaintiff and her husband had also previously bought properties from the Defendant) 5th Plaintiff - Housewife. 5th Plaintiff ‘s Witness Statement is in English Language and during the trial she gave evidence in English. 8th Plaintiff - Regional Manager of ATNT Worldwide. Note: The Plaintiffs at the trial gave evidence in English Language. [56] Undoubtedly, it can be safely stated that the Plaintiffs are not individuals who lack understanding of the English language and were uneducated. [57] Thus, even at this early juncture the Plaintiffs’ contention has already indeed failed. The Plaintiffs’ case wholly rest on the alleged exercise of the Options vide the payment of the sum to Swan. This is clearly not the supposed manner and proof of exercise of the Options as prescribed by the term of the Options reproduced above. Who does Swan act as solicitors for? [58] For the sake of completeness, this Court shall further indulge on the payment of the sum and its real effect on the Options. Ultimately, it matters not to what direction does the stone turns, it still stands that the payment of the sum to Swan is never a proof of exercise of the Options. [59] As the undisputed fact is that Swan holds the sum as a stakeholder, it is pertinent first, to determine who does Swan act for. Only then it is proper to identify whether the payment of the sum is proof of an exercise or otherwise. Documents regarding Swan’s Appointment [60] Since the relationship of the parties is largely defined based on written documents, it is appropriate to first look into the terms of the documents. a. The Appointment Letters All of the Appointment Letters contain the following passage: “I/We wish (in the present case, the Plaintiffs) however, to irrevocably appoint and authorise you (in the present case, Swan) as my/our solicitors to:-“ b. The Options All of the Options contain the following term: “We act for (insert relevant Plaintiff) who is interested in purchasing a unit of SOHO RESIDENCES… We are pleased to inform you that…with instructions…to irrevocably grant you an option to accept our client’s offer to purchase…upon the terms and subject to the conditions set out hereunder” [61] It must be noted that all of the Options and Appointment Letters were copied to the Plaintiffs. Not even once have any of the Plaintiffs wrote to protest or deny the representation made by Swan. If indeed the Plaintiffs are verily sure that Swan is not their solicitors, then common sense would have it that they should have protested against it. The Plaintiffs cannot now have a change of hearts and turn against their own acknowledgment. [62] This Court is guided by the decision of Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. The Federal Court in this case had referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) [63] Similarly, the Plaintiffs cannot feign ignorance to the clear terms of the Options and Appointment Letters. See the Subramaniam Chettiar case. Admission by Plaintiffs’ own witness [64] It is unsurprising at this juncture, that the Plaintiffs’ own witness would concur with the overwhelmingly probable case of the Defendant and contradict the Plaintiffs’ case. PW8, the Plaintiffs’ own solicitor has admitted that Swan was indeed appointed by the Plaintiffs and not the Defendant. The relevant excerpt of the cross-examination is reproduced here (see Notes of Evidence – Day 9 at page 21 to 22): Q. My question is, with reference to page 22, do you agree with me that once again, Swan & Partners is appointed as solicitors for Dato Ong? A. Yes Q. Do you agree with me that, once again, Dato Ong has instructed Swan & Partners to grant an option to the Defendant? A. Yes… Q. Can I refer you to page 40? Do you agree that via page 40, an option was granted by Dato Ong to the Defendant? Through their solicitors, Swan & Partners? A. Yes Q. So similarly at page 43, 46, 49, 52, 55, 58, 61, your answer will be the same? A. Yes Admission in the Plaintiffs’ own Witness Statements [65] It is similar across all of the Plaintiffs’ Witness Statements that the Plaintiffs appointed Swan & Partners as the firm was nominated by the Defendant. [66] It matters not whether or not Swan was nominated by the Defendant. This Court must emphasis here that a nomination is not a compulsory direction to appoint. It is a choice which the Plaintiffs may opt to accept or reject. Ultimately, as admitted by the Plaintiffs, Swan indeed was appointed by the Plaintiffs and not the Defendant. COURT’S FINDING [67] Thus, in consideration of all the above, it is this Court’s considered view that without an iota of doubt, Swan is indeed the Plaintiffs’ solicitors and not the Defendant’s. To whose benefit does Swan hold the sum for as stakeholder? [68] Naturally, entailing from the earlier finding above, it is obvious that the sum held by Swan is for the Plaintiffs and not the Defendant. Thus, in essence there are no payments made from the Plaintiffs to the Defendant. Two stages payment under the Options is a further proof of the Swan’s role as the Plaintiffs’ stakeholder [69] In examining the construction of the Options itself, it inevitably supports the contention that indeed, the sum when paid to Swan, it is not paid to the Developer. The Options have demarcated the payment in two stages: [70] The First stage is the payment of the sum (without interest) into an interest bearing account pending the exercise of the option. (See paragraph 2(c) of Options). Here, it is abundantly clear that the initial payment of the sum can be made prior to the exercise of the option. Thus, payment of the sum does not necessarily mean exercise of the Option. Even more so, when the payment is made to the Plaintiffs’ own solicitor and not the Defendant. [71] The 2nd Stage is the payment of the sum (with accrued interest from the interest bearing account) from Swan to the Developer. (See para 2(d)) upon exercise of the Option. Clearly here, that the payment of the sum must fulfil this 2 stages payment if it were to be any proof of payment to the Defendant. [72] Furthermore, the Plaintiff has only proven the first stage of the process, which is not near proof of exercise of the option by the Defendant. It is clear from a plain reading of the Option that the first payment to the solicitors as stakeholder is not a sum paid to the Developer. Only if the process transcends to the 2nd stage payment, then there is proof that the sum was paid to the Developer-Defendant (the second stage of the payment). [73] The First stage Payment as per the Options denotes that the payment has not yet reached the Developer when paid to the stakeholder. Then, if not the Developer who receives the money when it reached the stakeholder, the logical question would be who would have received the deposit? Logic and common sense would dictate that the payment when received by the stakeholder is still in the possession and control of the Plaintiffs. COURT’S FINDING [74] Thus, in view of all the above, it is this Court’s considered view that Swan holds the sum paid for the Plaintiff as stakeholders. Thus, the sum was never paid to the Defendant. Is the payment of the sum to Swan (Plaintiffs’ solicitors) a proof of an exercise of the Options [75] It is already vividly obvious that the payment of the sum is not an exercise of the Options. This is due to the earlier finding that a. Firstly, payment of the sum is not the manner of exercise of the Options as stipulated in the Options; and b. Secondly, the sum ultimately was never paid to the Defendant. [76] Thus, this Court sees it appropriate to only allude briefly to the Plaintiffs’ contention on the payment of the sum being either a deposit, booking fee or consideration to prove a binding contract. The payment of the sum is not a deposit, a booking fee or consideration furnished to the Defendant. The Plaintiffs cannot refer to inadmissible ‘without prejudice’ evidence [77] From the outset of this issue, it must be noted that the Plaintiffs’ contention on the sum being a deposit or a booking fee heavily relies on inadmissible ‘without prejudice’ documents as ruled by this Court on 6.4.2015. These documents are clearly communications between the parties in the view of a settlement of a dispute. The Plaintiffs in their submissions and reply submissions also have not contended against the Court’s finding on the inadmissibility of these documents. Thus, it is only appropriate that this Court totally and invariably would not consider the Plaintiffs’ contention in this regard. [78] The Plaintiffs referred to the Federal Court decision in Morello Sdn Bhd v Jaques (International) Sdn Bhd [1995] 1 MLJ 577 (FC) in attempting to argue that the sum is a deposit payment and consequently a proof to a binding contract. [79] It is this Court’s considered view that albeit the sum is identified as an “Earnest Deposit” it does not negate the earlier facts and finding that this sum was never at any material time paid to the Defendant. Thus, the payment of the sum to Swan is not a deposit. [80] Regarding the Plaintiffs’ contention on the sum being a booking fee, the Plaintiffs have referred to numerous cases to support their contention that the booking fee paid is proof of a binding agreement. (See Kin Nam Development Sdn Bhd v Khau Daw Yu [1984] 1 MLJ 256; Mary-Ann Arrichiello v Tanglin Studio Pte. Ltd. (1981) 2 MLJ 60; Charles Grenier Sdn Bhd v Lau Wing Hong [1996] 3 MLJ 327 (FC)) [81] However, again, the Plaintiffs have heavily relied on inadmissible ‘without prejudice’ evidences in Bundle B2 in attempting to prove the sum to be booking fees. Thus, the Court cannot to any extent consider this contention as the Plaintiffs cannot prove their assertion. Especially not vide inadmissible evidences. [82] Furthermore, similarly the payment of the sum has never been paid to the Defendant. Thus, even assuming that this Court agrees that the sum is a booking fee (which this Court thoroughly disagrees) the payment has never been made to the Defendant. COURT’S FINDING [83] Thus, in view of all of the above discussions, it is this Court’s considered view that the payment of the sum to Swan is undoubtedly not a consideration in the form of a deposit and/or booking fee. The Plaintiffs have by and large, failed to prove this contention. [84] Therefore, it is this Court’s judgment that the Options are not in any manner binding agreements enforceable against the parties. THE PLAINTIFFS’ CONDUCT IRREVOCABLY ACKNOWLEDGES THE PAYMENT OF THE SUM IS NOT AN EXERCISE OF THE OPTIONS [85] Now, even with the payment of the earnest deposit (First stage payment) in the 1st Option, upon the expiry of the 1st Option, the Plaintiffs also admitted of its expiration and authorised its solicitors to issue the 2nd Option. [86] It is blatantly clear that the payment of the Deposit to the Plaintiff’s own solicitor is not proof of Defendant’s exercise upon the Option. It is similarly applicable to 2nd Option, the Defendant at any time has never exercised the Option. It is more sensible and logical that the payment of the deposit was not made to the Defendant but to the Plaintiff’s own solicitor. If this is not the case, the question would be, why in the face of that payment, would the Plaintiff themselves own up, admit and agree that the 1st Option has expired? Clearly the answer would be that the payments are: a. Not made to the Defendant; b. are not proofs of an exercise to the Option; and c. The Option Holder is the Defendant (who never exercised the Options) [87] Even assuming that the Court agrees that the Plaintiff is the Option Holder (which the Court totally disagrees), it is clear here that the mere act of paying the deposit to Swan and Partners (notwithstanding whether or not they are the Plaintiff’s solicitors) is not an act proving exercise of the Option. And this fact further plunges the Plaintiffs’ contention into the burrows of insensibility and improbability as now, they have no proof of exercise of the Option even with their feeble and fallible contention that the Plaintiff is the Option Holder (which the Court disagrees). [88] Many of the issues become moot because of the conduct of the Plaintiffs themselves. It is clear that the conclusion remains the same (that the Option was never exercised) notwithstanding the questions: a. Of who does Swan acts for? Because as discussed above, even the Plaintiffs acknowledge that payment of the deposit to Swan and Partners does not actuate exercise of the Option. b. Of who is the Option Holder? Because in both circumstances that the Plaintiffs or Defendant is the Option Holder, the payment of the Deposit still is not any proof of actuation or exercise of the Option. c. Of to whom were the deposits paid to? Because in both circumstances that the deposit was paid to Swan and Partners on behalf of the Plaintiff or the Defendant, the Plaintiffs still ultimately admit, acknowledge, and agree that the payment is not any proof of an exercise of the Option. [89] The overwhelming conclusion here is that, at no point in time that the Plaintiffs can assert that the payment of the Deposit to any party whosoever, is proof that the Options have been exercised by any of the Parties. It is plain and indeed simple. The Plaintiffs’ conduct in agreeing to the lapsing of the 1st Option after allegedly paying that deposit, infers that the payment of deposit is never a consideration or a variable in determining the exercise or non-exercise of the Option. [90] And the Plaintiffs should be estopped from contending otherwise. This Court is again guided by the principle propounded in the Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. THE 1ST OPTIONS ARE IMPOSSIBLE TO BE EXERCISED ANYWAYS [91] Section 5(1) of the Housing Development (Control and Licensing) Act 1966 prohibits a developer from carrying or undertaking housing development before a Developer’s License is obtained. Regulation 5(1) of the Housing Development (Control and Licensing) Regulations 1989 prohibits any advertisement or sale of any housing development prior to obtaining an Advertisement and Sale Permit. Failure to adhere to these provisions tantamount to an offence under Section 18 of the Housing Development (Control and Licensing) Act 1966. [92] The 1st Options are impossible to be exercised anyways. The 1st Options expire within the year 2006 while the APDL was only granted in 2007. There is factually and legally nothing exercisable or enforceable in the First Option. The parties could not legally enter into any sale and purchase agreement during the whole validity period of the 1st Options. Thus, indeed the 1st Options were inherently impossible to be exercised. THERE WAS ONLY A PRICE INCREASE AGAINST THE UNITS’ PRICE BUT NOT AGAINST THE PLAINTIFFS [93] The parties have also at length submitted and forwarded evidences on the issue of supposed price increase of the units comparative to the supposed indicative prices in the Options. [94] The issue whether or not new prices were informed to the Plaintiffs is irrelevant. The Plaintiffs’ claim is based on the Options which this Court finds to not be a binding contract. It is even acknowledged and admitted by the Plaintiffs themselves that the 1st Option has expired. The Plaintiff cannot be allowed to use the two Options as a benchmark to an increase of price. Whatever price which was set by the Defendant during the pre-launch or any time after the Options is not any manner relative to the Options which have expired and not exercised by the Defendant. [95] The price increase is merely a mathematical increase to the units and not an increase against the Plaintiffs. Against the Plaintiffs, the increased price is only a new price as in the first place, the Plaintiffs are not even entitled to the initial price in the Options as the Options have lapsed, not a binding contract and were never exercised by the Defendant. COURT’S DECISION AND DIRECTIONS [96] In light of all of the above findings, it is this Court’s decision that the Plaintiffs have indeed failed to prove their claim and consequently the totality of their case. [97] This Court hereby dismisses the Plaintiffs’ case. On the issue of costs [98] Having heard the submission from both counsels for the Plaintiffs and the Defendant, this Court hereby orders the Plaintiffs to pay the Defendant a global sum of RM 120,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 26th day of June, 2015. For the Plaintiffs - Tetuan Skrine & Co Encik Vijay Raj a/l Balasupramaniam For the Defendant - Tetuan Khaw & Partners Encik C.Y Koh 30

Tika 2.6.0

22-68-2009

PLAINTIF 1. DATO’ ONG JYH JONG 2. GOH CHING CHEE 3. HO CHAI YOONG 4. GO LEE BIN 5. LILY NEO 6. LOW YIK CHOON 7. LOH KOON YIN 8. LEE KONG FOO 9. SIM SWEE YOKE 10. LIM HONG TAT DEFENDAN VALENCIA DEVELOPMENT SDN. BHD.

26/06/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=618e2c95-d232-48c3-8406-7ed942364eba&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : MT2-22-68-2009 BETWEEN 1. DATO’ ONG JYH JONG 2. GOH CHING CHEE 3. HO CHAI YOONG 4. GO LEE BIN 5. LILY NEO 6. LOW YIK CHOON 7. LOH KOON YIN 8. LEE KONG FOO 9. SIM SWEE YOKE 10. LIM HONG TAT …. PLAINTIFFS AND VALENCIA DEVELOPMENT SDN. BHD. .… DEFENDANT GROUNDS OF JUDGMENT (After full trial) BACKGROUND FACTS [1] The present case is relatively an uncomplicated case. Though laced with a number of technical issues, the present case is simply a claim for specific performance by the Plaintiffs against the Defendant in enforcing an alleged agreement or agreements which the Plaintiffs claim to have been entered into with the Defendant. [2] All the Plaintiffs collectively are prospective purchasers to the Defendant’s residential development in Sungai Buluh also known as “Valencia Development”. This development was later named as the SOHO Residences consisting of 28 units of 3 storey terrace houses. It was these residences which the Plaintiffs were interested in purchasing (“properties”). [3] The Defendant is a private limited company incorporated in Malaysia under the Companies Act 1953 which undertook the residential development project in building and selling the properties. [4] Originally there were ten Plaintiffs initiating this civil suit against the Defendant, however later the 6th, 7th, 9th and 10th Plaintiffs had withdrawn their suit and hence, the trial of this action is only with regards to the 1st Defendant (Dato” Ong Jyh Jong), 2nd Defendant (Goh Ching Chee), 3rd Defendant (Ho Chai Yoong), 4th Defendant (Go Lee Bin), 5th Defendant (Lily Neo) and 8th Defendant (Lee Kong Foo). All the six Plaintiffs who have proceeded with this action shall hereinafter in this judgment be referred as “the Plaintiffs”. [5] In pursuit of their interest to purchase, the Plaintiffs (except the 3rd Plaintiff) have each issued the Appointment Letters (“1st Appointment Letters”) on different dates in 2006 to the Defendant vide their Appointment as Solicitors Letters addressed to Swan & Partners (“Swan”). However, the 2nd and 3rd Plaintiffs have later authorised Swan to act on their behalf vide their Purchase Application Form. (See pages 1 to 12 and 97 to 98 of Bundle B1 for the relevant 1st Appointment Letters and Purchase Application Forms). [6] These 1st Appointment Letters all echo similar terms across all the properties and parties involved. The salient terms of the 1st Appointment Letters are reproduced here: “I/We wish (in the present case, the Plaintiffs) however, to irrevocably appoint and authorise you (in the present case, Swan) as my/our solicitors to:- a) grant to the Developer (in the present case, the Defendant) an Option valid until August 2006 (“Option Period”) to accept my/our irrevocable offer to purchase the said Property from the Developer at the selling price not exceeding RM546,840 (“Option”) on the terms and conditions as discussed and explained by you to me/us; b) grant to the Developer an automatic extension period of three (3) months from the date of expiry of the Option Period (“Extension Option Period); c) accept from me/us an earnest deposit of RM30,000.00 only (“Earnest Deposit”) as stakeholders to be placed in an interest bearing deposit with a financial institution of your choice to the credit of my/our account pending the exercise of the Option by the Developer; d) pay the Earnest Deposit together with the accrued interest to the Developer if and when the Developer exercises the Option and accepts my/our offer to purchase the said Property” [7] A plain reading of the terms above would easily reveal that the Option (“1st Option”) given by the Plaintiffs to the Defendant to exercise an option/election to sell if so the Defendant indeed opted to accept the Plaintiff’s offer. [8] From the outset, it must be noted that the configuration of the Options in this case is verily peculiar and different to the masses of Options which had reached the Courts for determination. The 1st Options in the present case rather than granting the purchaser an option/election to purchase instead grant the vendor an option/election to sell. [9] Swan on different dates in 2006 after the 1st Appointment Letters were issued, has issued options the 1st Options on behalf of the Plaintiffs confirming that Swan acts for the interested purchasers (the Plaintiffs), that the Plaintiffs vide Swan grants to the Defendant options/election to sell, and also that the Earnest Deposit of RM30,000.00 (“sum”) has been paid to Swan as stakeholders. The letters all similarly read (see pages 13 – 15 and 16 – 18, 183 – 185, 186 – 188, and 189 – 191 of Bundle B1 for the 1st Options): “We act for (insert relevant Plaintiff) who are interested in purchasing (insert relevant property) comprised in the housing development in Valencia, Sungai Buloh. We are pleased to inform that an earnest deposit of Ringgit Malaysia Thirty Thousand (RM30,000.00) only … has been deposited by our client with us stakeholders.” [10] However, as far as the payment goes, there is only proof of payment of the RM30,000.00 sum to the Swan as stakeholder. It remains undisputed that there is no proof that the RM30, 000.00 sum held by Swan was consequently paid with interest accrued to the Defendant. [11] The salient terms and conditions of the 1st Options issued by the Plaintiffs to the Defendant are: “We act for (insert relevant Plaintiff) who is interested in purchasing a unit of SOHO RESIDENCES… We are pleased to inform you that…with instructions…to irrevocably grant you an option to accept our client’s offer to purchase…upon the terms and subject to the conditions set out hereunder 1) This Option may be exercised by you (in the present case, the Defendant)… 2) The Option may be exercised by you issuing to us (in the present case, Swan) for our client (in the present case, the Plaintiffs) in writing hereinafter referred to as “the Notice of Exercise of Option”… [12] Furthermore, it must be noted that the Plaintiffs has owned up and acknowledged all the representations made by Swan in the 1st Options. The Plaintiffs has never shown or expressed any disagreements against the representations of the 1st Options, particularly to the representation that Swan acts for the Plaintiffs. [13] After the expiry of the 1st Option, on 8.6.2007, the Defendant issued a letter to Swan informing of the expiration and enquired of the Plaintiffs would issue a fresh Option if they were still interested to purchase the properties. (See page 21 of Bundle B1). [14] The Plaintiffs in turn, acknowledged as well as admitted the 1st Option’s expiration and consequently issued fresh appointment letters (on different dates around September 2007) authorising Swan to act as their solicitors and to grant the Defendant a fresh Option (“2nd Appointment Letters”). The terms and content of the 2nd Appointment Letters are similar to the 1st Appointment Letters. (See pages 22 – 25, 28 – 31, and 34 – 39 of Bundle B1 for the 2nd Appointment Letters). [15] For the 2nd time around, the Plaintiffs issued fresh Options around November 2007 (“2nd Options”) confirming that Swan acts for the Plaintiffs and that following the earlier payment of RM30,000.00 sum, the Plaintiffs has paid the Earnest Deposit to Swan as a stakeholder before and pending the Defendant’s exercise of the 2nd Options. The terms of these 2nd Options are similar to that of the 1st Options. (See pages 40 – 54, 58 – 60, and 196 – 198 of Bundle B1 for the 2nd Options). [16] Similar to the 1st Options, it must be noted that the Plaintiffs had owned up and acknowledged all the representations made by Swan in the 2nd Options. The Plaintiffs had never shown or expressed any disagreements against the representations in the 2nd Options, particularly to the representation that Swan acts for the Plaintiffs. [17] However, against the 2nd Options the Defendant has expressly rejected the 2nd Options. The Defendant vide its letter dated 17.6.2008 has informed Swan that it is unable to accept the Plaintiffs’ 2nd Options and therein suggested Swan to advise their clients (the Plaintiffs) to withdraw their offers. The main passage of the letter is reproduced below for convenience (see page 64 of Bundle B1): “We write to inform that we are unable to accept your Client’s offer to purchase a unit in the abovementioned Phase… In the circumstances, you may wish to advise your Clients to withdraw their offer to us.” [18] Consequently, Swan has issued letters informing the Plaintiffs of the Defendant’s rejection and also the refund of the RM30,000.00 held by Swan as stakeholder for the Plaintiffs (“Refund Letters”) (see pages 65, 67, 70, 71, 74, 80, and 86 of Bundle B1 for the Refund Letters). [19] A few months following the refund, the Defendant has invited the Plaintiffs to the pre-launch of the properties in November 2008. Suddenly, after the pre-launch, the Plaintiffs on different dates in December 2008 has fallen back to the 1st Options, and issued cheques of to the amount of 10% of the prices indicated in the 1st Options vide Chur & Associates, the Plaintiffs’ other solicitors at that point in time. The Defendant has returned all of the cheques sent on the grounds that the cheques are insufficient as they are based on the 1st Options which have already lapsed and were not exercised by the Defendant. Following this refusal by the Defendant is the Plaintiffs’ cause of action for specific performance to order the Defendant to honour their so-called obligations under the 1st and 2nd Options (“Options”) which the Plaintiff claims to be a binding agreement. PLAINTIFFS’ CASE [20] The Plaintiffs’ case is simply that: a. The Plaintiffs are allegedly the receivers of the Options and the option-holders. b. As the alleged option-holders, the Plaintiffs have exercised the 1st Option and alternatively the 2nd Option upon allegedly furnishing valuable consideration (in the RM30,000.00 sum payment) to the Defendant. The payment of the RM30,000.00 sum shall be deemed as a deposit or alternatively a booking fee paid to the Defendant. c. Swan is actually the alleged solicitors acting for and/or on behalf of the Defendant and thus holds the RM30, 000.00 sum as stakeholders for the Defendant. d. Upon the Plaintiffs’ alleged exercise of the Options, the Options now allegedly become binding agreements in which the Defendant must perform upon attaining the Advertisement Permit and Developer’s License (“APDL”) under the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulations 1989. e. The Defendant owes the duty to perform their alleged obligations under the alleged agreements to the Plaintiffs. DEFENDANT’S CASE [21] On the contrary, the Defendant’s case is simply that: a. The Defendant is allegedly the receivers of the Options and the option-holders. b. As the option-holders, the Defendant has never exercised the Options which were granted by the Plaintiffs. c. The payment of the RM30,000.00 sum was never paid to the Defendant, but instead was only paid to Swan as the Plaintiffs’ stakeholder. d. The payment of the sum to Swan as the Plaintiffs’ solicitor cannot in any manner be deemed an exercise of the Options particularly considering that the Plaintiffs are not the option-holders. e. The payment of the sum is not at any material time a deposit or booking fee allegedly paid to the Defendant. The payment of the sum to the Plaintiff’s own stakeholder is not a valuable consideration furnished to the Defendant. f. Swan is actually the alleged solicitors acting for and/or on behalf of the Plaintiff and thus holds the RM30,000.00 sum as stakeholders for the Plaintiff. g. The Options were never exercised and thus, have never elevated to be Agreements. The attainment of the APDL is never a condition precedent to any contract as there is no contract to begin with. h. The Defendant never owes any duty to perform any obligations as there has never been any conclusion of a binding contract between the parties. [22] Upon the stances of the parties above, the pivotal issues to be determined can be encapsulated in the following issues: (a) Which party is the option-holder as under the Options? i. which party may exercise the Options? (b) Are the Options binding as Agreements? i. To whose benefit did Swan held the sum for as stakeholder? ii. Are the payments of the sum a proof of an exercise of the Options escalating the Options into Agreements? ISSUE (a): WHICH PARTY IS THE OPTION-HOLDER AS UNDER THE OPTIONS? [23] It is noted that the majority of the parties’ submission is on the payment of the sum and whether the payment of the sum becomes proof of a binding Agreement. [24] This question goes along the assumption that the option-holders are the Plaintiffs, which this Court at this juncture has yet to make a finding over. Thus, the more pertinent question to be determined is which of the parties is/are the option-holder(s) based on the Options. [25] It must be noted that the documents referred by the Plaintiffs as agreements, and by the Defendant as Options are indisputably and ultimately Options. The Plaintiffs’ case is that these Options have been exercised by the Plaintiffs as the alleged option-holder. In fact, the Plaintiffs themselves have relied on a barrage of authorities in arguing that the conferment of consideration escalates an Option into a binding agreement. Thus, this Court is of the view that it is unnecessary for the Court to delve deeply in defining the documents when all parties have already agreed that the documents are essentially Options. A plain reading of the Options and all other masses of contemporaneous documents would reveal that both parties agree that the documents are indeed Options. The clear designation and stipulation of the Options and Appointment Letters [26] It is unnecessary actually for this Court to go beyond the written terms of the Options to determine the intended option-holder. The words from the 1st and 2nd Appointment Letters and the Options are clear without any shade of ambiguity. Amidst all of the Plaintiffs’ contentions on the argument that the Plaintiffs are the option-holder, merely because allegedly the Plaintiffs have paid a deposit sum, the clear terms and wordings of the Options and Appointment Letters does not beckon the Court’s attention to even consider anything else besides the Options and Appointment Letters. The relevant term in the Options is reproduced here: “I/We wish (in the present case, the Plaintiffs) however, to irrevocably appoint and authorise you (in the present case, Swan) as my/our solicitors to:- a) grant to the Developer (in the present case, the Defendant) an Option valid until August 2006 (“Option Period”) to accept my/our irrevocable offer to purchase the said Property from the Developer at the selling price not exceeding RM546,840 (“Option”) on the terms and conditions as discussed and explained by you to me/us; b) grant to the Developer an automatic extension period of three (3) months from the date of expiry of the Option Period (“Extension Option Period); [27] In coherence to the Appointment Letters, the relevant term of the Options are reproduced here: “We act for (insert relevant Plaintiff) who is interested in purchasing a unit of SOHO RESIDENCES… We are pleased to inform you that…with instructions…to irrevocably grant you an option to accept our client’s offer to purchase…upon the terms and subject to the conditions set out hereunder 1) This Option may be exercised by you (in the present case, the Defendant)… 2) The Option may be exercised by you issuing to us (in the present case, Swan) for our client (in the present case, the Plaintiffs) in writing hereinafter referred to as “the Notice of Exercise of Option”… [28] There is no room for a single inkling of doubt to the probability of the Defendant’s case that indeed the option-holder is the Defendant and not the Plaintiffs. The Appointment Letters and the Options clearly show that the movement of the Options is from the Plaintiffs (as grantors) to the Defendant (grantee and option-holder) which the Defendant may later exercise the Options. [29] This Court is guided by the case of Syarikat Binaan Utara Jaya ( A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50, Abdul Malik Ishak, JCA from the available authorities had in para 17 of the Court of Appeal’s judgment, with regard to construction of a contract where the language employed is clear, has made the following propositions: “(a) the Court must give effect to the plain meaning of the words, no matter how distasteful the result may be (The Central Bank of India Ltd. Amritsrar v. The Hartford Fire Insurance Co. Ltd. [1965] AIR Vol. 52, 1288 SC); (b) where the language in the document is unambiguous and clear, the real nature of the document is to be determine solely by looking at its contents, uninfluenced by any intention of the parties ((Nawab Major Sir) Mohammad Akbar Khan v. Attar Singh and Others [1936] AIR Vol. 23, 171 PC); (c) when the minds of the parties are expressed in an unambiguous manner, the Court cannot override the declared intention of the parties unequivocally expressed (K. Appukuttam Panicker and Another v. S.K.R.A.K.R Athappa Chettiar and Others [1966] AIR Vol.53, 303 Kerala); and (d) there is no scope, at all, for drawing upon hypothetical considerations or the supposed intention of the parties when the words contained in the contract are clear and unambiguous (The Union of India v. Kishorilal Gupta and Bros. [1959] AIR Vol. 46, 1362 SC).” Furnishing consideration does not determine or identify the option-holder [30] The Plaintiffs albeit fallible, have attempted to argue that the payment of consideration of a party determines or identifies that party as the option-holder. In attempting so, the Plaintiffs referred to the Federal Court decision in Subramaniam Chettiar & Ors v JC Chang Ltd [1969] 2 MLJ 176 (FC). However, in reading and examining this decision, it is this Court’s considered view that the preposition given by the Plaintiff is not at all the principle which was upheld in Subramianiam Chettiar’s case. The Plaintiffs’ feeble contention hinges on this passage: “If the option is not by deed, therefore, the grantee of the option must give some consideration quite apart from anything which he may have to do should he exercise the option” [31] Respectfully, preposition afforded by the Plaintiffs is an incorrect or a misconceived interpretation of the case which is taken out of the actual context of the decision. The principle in this case does not dictate that the option-holder must be the party who has given valuable consideration. This was not the principle propounded in this case at all. [32] What was really held was only that a grantee must give valuable consideration in order to make the option a binding contract. It does not at all lay down a precedent of a standard or a set configuration that a party giving consideration is automatically the grantee/option holder. [33] This Court is of the considered view that merely being the party furnishing consideration does not automatically assigns that party in the shoes of the grantee/option-holder. It is up to the parties to an option to dictate the terms of the options. And evidently so, the construction of the option is clearly that the Plaintiffs/prospective purchaser granting the Defendant/vendor an option which is an election to sell within a stipulated time. [34] It must be noted that the configuration of the Options in the present case is rather peculiar and different from normal Options. It is already clearly agreed by the parties in the present case that the grantor (the Plaintiff) is the party furnishing the RM30,000.00 sum. The case of Subramaniam Chettiar should be distinguished from the present case. [35] In fact, the case of Subramaniam Chettiar is by far, verily distinguishable with the present case. The illustration which forms the fulcrum of the Federal Court’s decision in the case referred, is thoroughly different from the present case. The illustration given there was: A (vendor/grantor ie. the Defendant) agrees with B (purchaser/grantee ie the Plaintiffs), upon B paying monies as consideration to A, B is entitled to exercise the option within one month to inform of B’s election to purchase and inform of B’s election to A. However, the present case’s option is indeed different: B (purchaser/grantor) agrees to give A (vendor/grantee) an entitlement of option/election to sell to B within one month time in which B may exercise the option to elect to sell or otherwise. [36] The Subramaniam Chettiar case stipulates that the principle propounded in that case is for a case: “of an option for valuable consideration to purchase, the matter is altogether out of the vendor’s hand” [37] This is a case (Subramaniam Chettiar’s case) applicable to an option to purchase which is verily different from the present case where the vendor (the Defendant) was granted an option to sell. Thus, it is clear here that the Federal Court decision in Subramaniam Chettiar, is distinguishable and should be distinguished in the present case. Admission of Plaintiffs’ own witness on the designation of the Option-holder [38] Even the Plaintiffs’ own witness (PW8, Tan Chur Pin of Chur & Associates) has contradicted the Plaintiffs’ case and admitted that the option was granted to the Defendant and that the option-holder is indeed the Defendant. PW8 is one of the Plaintiffs’ own solicitors. The relevant excerpt of PW8’s admission and contradiction is reproduced below: “Q. Do you agree that based on this letter, an option is granted by Dato’ Ong to the developer? A. Yes Q. So, do you agree with me, based on your earlier testimony, that the developer would be termed, in commercial terms, the option holder? A. Yes” The illogicality of an option-holder issuing and receiving an option against himself [39] It is undisputed here that upon the expiration of the 1st Option, the Plaintiffs upon enquiry have issued the 2nd Option. This particular issuance of Options makes no logical or commercial sense if the Court were to accept that the Plaintiffs are the option holders (which this Court does not accept). The rhetorical question then would be ‘why would an option-holder be asked to issue a fresh option and issued a fresh option to his or her own self?’ It does not make sense that a person receiving the option is the same person who is granting the option. Hence, this adds to the improbability of the Plaintiff’s case in this regard. COURT’S FINDINGS ON ISSUE (a) [40] The option is exercisable when the Defendant exercises the option. Unilaterally paying the deposits to their own solicitor does not actuate the exercise of the Option to any extent. [41] In view of the above, it is this Court’s considered view that the option holder under the Options is without a doubt is the Defendant. Thus, the only party which would hold the option to exercise the Options is the Defendant and not at any point in time the Plaintiffs. ISSUE (b): ARE THE OPTIONS BINDING AS AGREEMENTS? [42] The parties’ contentions on the effect of the Options revolve around the question whether or not the Options have been exercised. Particularly on the payment of the RM30, 000.00 sum to Swan. [43] Nonetheless, this Court it must be noted that entailing from the earlier finding that the Defendant is the option holder, from to outset the Plaintiffs can no longer contend that the payment of the sum to Swan is proof of the Plaintiffs’ exercise of the Options. The Plaintiffs are not the option holder and thus, are not in any position to exercise the Options. [44] Nonetheless, for the sake of completeness, this Court shall still delve into the documents and the submissions of the parties. Specific manner of exercising the Options: absence of proof of exercise [45] Amidst the contentions regarding the payment of the sum being a proof of exercise of the Options, it is more relevant and proper for this Court to examine the documents which entail the relationship of the parties which are the Options. [46] A simple and plain reading of the Options which even the Plaintiffs themselves intend to enforce, would already reveal that there is a specific manner in which the Defendant must adhere to if it intends to exercise the Options. “2) The Option may be exercised by you issuing to us (in the present case, Swan) for our client (in the present case, the Plaintiffs) in writing hereinafter referred to as “the Notice of Exercise of Option”…” [47] The terms of the Options and Appointment Letters are mutually agreed, in full volition of the parties. No party particularly the Plaintiffs, who granted the Options, should be allowed to feign ignorance that they do not understand the Options and its content at the time it was signed. [48] This Court is taken aback by the bold contention of the Plaintiffs in their testimony that they readily admit that they did not read the Options and Appointment Letters when signing the documents. It is a steady stance which is reflected in all of the Plaintiffs’ witnesses. [49] However, this Court cannot protect and condone such lackadaisical and ignorant attitude towards a signed written document. It would be unbecoming if this Court would allow signatories to excuse themselves from the covenants agreed and contained in a document merely because of their own ignorance to understand and read what they are signing even after affording the opportunity to read understand the covenants. [50] The Appointment Letters and the Options were handed to the Plaintiffs. Albeit if it is a standard operating procedure or not, it does not negate the fact that before the signing of the Appointment Letters and Options, the Plaintiffs are at liberty to read, scrutinize and understand the content of the documents. And upon the same liberty, the Plaintiffs should read and understand the content. Signing the documents indicates agreement and understanding of the Plaintiffs to the contents of the documents. [51] This Court is guided by the decision of Gill J in Subramaniam v Retnam [1966] 1 MLJ 172 referred to by the Defendant: “For my saying so I find support in the following statement of the law. with which I respectfully agree, in the judgment of Wood Ag. C.J., in Ismail bin Savoosah & Ors v Hajee Ismail: “It was argued that the defendant being ignorant of the English language he is to be excused on that account from the performance of his contract, but it is to my mind clear that in the common principles which govern the law of contract, the person who contracts by a written document, whether or not he understands the language in it is written, is bound, in the absence of fraud and misrepresentation, by the terms of that contract,…”(emphasis added) [52] This Court will also refer to two other cases relating to this issue. In the case of Chai Then Song v Malaysia United Finance Bhd [1993] 2 CLJ 640, James Foong J (as he then was) held inter alia: [1] A person who chose to be careless, or not bothered to find out the contents of a document, or who relied completely upon others to complete the same, is responsible for his own actions and he is prevented from denying that the contents of the document do not bind him. [53] James Foong J in Chai Then Song’s case had referred to the House of Lords’ decision in the case of Saunders v Angelia Building Society [1971] AC 1004. At page 642 of his judgment James Foong J had said this: “Now turning to the fundamental point on this issue of the appellant executing on a Deed of Guarantee with relevant parts therein left blank and, where this similarly applies to the Hire Purchase Agreement the learned Magistrate relied on the case of Saunders v. Angelia Building Society [1971] AC 1004. This case is better known as Gallie v. Lee, a House of Lords decision which held that: A person who signs a document parts with it so that it may come into other hands, has a responsibility, that of a normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor.” [54] The Court of Appeal in the case of Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn Bhd [2010] 4 CLJ 203, Abdul Malik JCA in supporting Low Hop Bing JCA’s judgment (delivering the judgment of the Court of Appeal) at paragraphs 35, 36 and 37 had said: “[35] The purchase order was signed and accepted by the plaintiff and at the bottom left side of the said purchase order the following caption appeared: We have read and agreed to the sales conditions stated overleaf. [36] That would seal the fate of the plaintiff. In L’Estrange v F. Graucob, Limited [1934] 2 KB 394, at p.403, Scrutton LJ aptly said and which would surely apply to the plaintiff: When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not. [37] Thus, a person who signs a contractual document is bound by its terms even though he has not read it......” (emphasis added) [55] The Plaintiffs in the present case cannot now come to this Court and assert that they did not read the documents at all, are ignorant of the terms of the documents which are in English language, were misrepresented of the terms of the documents and do not understand the contents the Appointment Letters / Options which were handed to them. Even more so, considering the Plaintiffs’ backgrounds which are itemised below: 1st Plaintiff - Chief Executive Officer of ABBDA Aviation Corporation (who had previously bought properties from the Defendant). 2nd Plaintiff - the 3rd Plaintiff’s husband. He retired early to help the 3rd Plaintiff to run their Real Estate Agency. 3rd Plaintiff - Principal of a Real Estate Agency (Both the 2nd and 3rd Plaintffs had also previously bought properties from the Defendant) 4th Plaintiff- Interior Designer and Consultant (Both 4th Plaintiff and her husband had also previously bought properties from the Defendant) 5th Plaintiff - Housewife. 5th Plaintiff ‘s Witness Statement is in English Language and during the trial she gave evidence in English. 8th Plaintiff - Regional Manager of ATNT Worldwide. Note: The Plaintiffs at the trial gave evidence in English Language. [56] Undoubtedly, it can be safely stated that the Plaintiffs are not individuals who lack understanding of the English language and were uneducated. [57] Thus, even at this early juncture the Plaintiffs’ contention has already indeed failed. The Plaintiffs’ case wholly rest on the alleged exercise of the Options vide the payment of the sum to Swan. This is clearly not the supposed manner and proof of exercise of the Options as prescribed by the term of the Options reproduced above. Who does Swan act as solicitors for? [58] For the sake of completeness, this Court shall further indulge on the payment of the sum and its real effect on the Options. Ultimately, it matters not to what direction does the stone turns, it still stands that the payment of the sum to Swan is never a proof of exercise of the Options. [59] As the undisputed fact is that Swan holds the sum as a stakeholder, it is pertinent first, to determine who does Swan act for. Only then it is proper to identify whether the payment of the sum is proof of an exercise or otherwise. Documents regarding Swan’s Appointment [60] Since the relationship of the parties is largely defined based on written documents, it is appropriate to first look into the terms of the documents. a. The Appointment Letters All of the Appointment Letters contain the following passage: “I/We wish (in the present case, the Plaintiffs) however, to irrevocably appoint and authorise you (in the present case, Swan) as my/our solicitors to:-“ b. The Options All of the Options contain the following term: “We act for (insert relevant Plaintiff) who is interested in purchasing a unit of SOHO RESIDENCES… We are pleased to inform you that…with instructions…to irrevocably grant you an option to accept our client’s offer to purchase…upon the terms and subject to the conditions set out hereunder” [61] It must be noted that all of the Options and Appointment Letters were copied to the Plaintiffs. Not even once have any of the Plaintiffs wrote to protest or deny the representation made by Swan. If indeed the Plaintiffs are verily sure that Swan is not their solicitors, then common sense would have it that they should have protested against it. The Plaintiffs cannot now have a change of hearts and turn against their own acknowledgment. [62] This Court is guided by the decision of Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. The Federal Court in this case had referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) [63] Similarly, the Plaintiffs cannot feign ignorance to the clear terms of the Options and Appointment Letters. See the Subramaniam Chettiar case. Admission by Plaintiffs’ own witness [64] It is unsurprising at this juncture, that the Plaintiffs’ own witness would concur with the overwhelmingly probable case of the Defendant and contradict the Plaintiffs’ case. PW8, the Plaintiffs’ own solicitor has admitted that Swan was indeed appointed by the Plaintiffs and not the Defendant. The relevant excerpt of the cross-examination is reproduced here (see Notes of Evidence – Day 9 at page 21 to 22): Q. My question is, with reference to page 22, do you agree with me that once again, Swan & Partners is appointed as solicitors for Dato Ong? A. Yes Q. Do you agree with me that, once again, Dato Ong has instructed Swan & Partners to grant an option to the Defendant? A. Yes… Q. Can I refer you to page 40? Do you agree that via page 40, an option was granted by Dato Ong to the Defendant? Through their solicitors, Swan & Partners? A. Yes Q. So similarly at page 43, 46, 49, 52, 55, 58, 61, your answer will be the same? A. Yes Admission in the Plaintiffs’ own Witness Statements [65] It is similar across all of the Plaintiffs’ Witness Statements that the Plaintiffs appointed Swan & Partners as the firm was nominated by the Defendant. [66] It matters not whether or not Swan was nominated by the Defendant. This Court must emphasis here that a nomination is not a compulsory direction to appoint. It is a choice which the Plaintiffs may opt to accept or reject. Ultimately, as admitted by the Plaintiffs, Swan indeed was appointed by the Plaintiffs and not the Defendant. COURT’S FINDING [67] Thus, in consideration of all the above, it is this Court’s considered view that without an iota of doubt, Swan is indeed the Plaintiffs’ solicitors and not the Defendant’s. To whose benefit does Swan hold the sum for as stakeholder? [68] Naturally, entailing from the earlier finding above, it is obvious that the sum held by Swan is for the Plaintiffs and not the Defendant. Thus, in essence there are no payments made from the Plaintiffs to the Defendant. Two stages payment under the Options is a further proof of the Swan’s role as the Plaintiffs’ stakeholder [69] In examining the construction of the Options itself, it inevitably supports the contention that indeed, the sum when paid to Swan, it is not paid to the Developer. The Options have demarcated the payment in two stages: [70] The First stage is the payment of the sum (without interest) into an interest bearing account pending the exercise of the option. (See paragraph 2(c) of Options). Here, it is abundantly clear that the initial payment of the sum can be made prior to the exercise of the option. Thus, payment of the sum does not necessarily mean exercise of the Option. Even more so, when the payment is made to the Plaintiffs’ own solicitor and not the Defendant. [71] The 2nd Stage is the payment of the sum (with accrued interest from the interest bearing account) from Swan to the Developer. (See para 2(d)) upon exercise of the Option. Clearly here, that the payment of the sum must fulfil this 2 stages payment if it were to be any proof of payment to the Defendant. [72] Furthermore, the Plaintiff has only proven the first stage of the process, which is not near proof of exercise of the option by the Defendant. It is clear from a plain reading of the Option that the first payment to the solicitors as stakeholder is not a sum paid to the Developer. Only if the process transcends to the 2nd stage payment, then there is proof that the sum was paid to the Developer-Defendant (the second stage of the payment). [73] The First stage Payment as per the Options denotes that the payment has not yet reached the Developer when paid to the stakeholder. Then, if not the Developer who receives the money when it reached the stakeholder, the logical question would be who would have received the deposit? Logic and common sense would dictate that the payment when received by the stakeholder is still in the possession and control of the Plaintiffs. COURT’S FINDING [74] Thus, in view of all the above, it is this Court’s considered view that Swan holds the sum paid for the Plaintiff as stakeholders. Thus, the sum was never paid to the Defendant. Is the payment of the sum to Swan (Plaintiffs’ solicitors) a proof of an exercise of the Options [75] It is already vividly obvious that the payment of the sum is not an exercise of the Options. This is due to the earlier finding that a. Firstly, payment of the sum is not the manner of exercise of the Options as stipulated in the Options; and b. Secondly, the sum ultimately was never paid to the Defendant. [76] Thus, this Court sees it appropriate to only allude briefly to the Plaintiffs’ contention on the payment of the sum being either a deposit, booking fee or consideration to prove a binding contract. The payment of the sum is not a deposit, a booking fee or consideration furnished to the Defendant. The Plaintiffs cannot refer to inadmissible ‘without prejudice’ evidence [77] From the outset of this issue, it must be noted that the Plaintiffs’ contention on the sum being a deposit or a booking fee heavily relies on inadmissible ‘without prejudice’ documents as ruled by this Court on 6.4.2015. These documents are clearly communications between the parties in the view of a settlement of a dispute. The Plaintiffs in their submissions and reply submissions also have not contended against the Court’s finding on the inadmissibility of these documents. Thus, it is only appropriate that this Court totally and invariably would not consider the Plaintiffs’ contention in this regard. [78] The Plaintiffs referred to the Federal Court decision in Morello Sdn Bhd v Jaques (International) Sdn Bhd [1995] 1 MLJ 577 (FC) in attempting to argue that the sum is a deposit payment and consequently a proof to a binding contract. [79] It is this Court’s considered view that albeit the sum is identified as an “Earnest Deposit” it does not negate the earlier facts and finding that this sum was never at any material time paid to the Defendant. Thus, the payment of the sum to Swan is not a deposit. [80] Regarding the Plaintiffs’ contention on the sum being a booking fee, the Plaintiffs have referred to numerous cases to support their contention that the booking fee paid is proof of a binding agreement. (See Kin Nam Development Sdn Bhd v Khau Daw Yu [1984] 1 MLJ 256; Mary-Ann Arrichiello v Tanglin Studio Pte. Ltd. (1981) 2 MLJ 60; Charles Grenier Sdn Bhd v Lau Wing Hong [1996] 3 MLJ 327 (FC)) [81] However, again, the Plaintiffs have heavily relied on inadmissible ‘without prejudice’ evidences in Bundle B2 in attempting to prove the sum to be booking fees. Thus, the Court cannot to any extent consider this contention as the Plaintiffs cannot prove their assertion. Especially not vide inadmissible evidences. [82] Furthermore, similarly the payment of the sum has never been paid to the Defendant. Thus, even assuming that this Court agrees that the sum is a booking fee (which this Court thoroughly disagrees) the payment has never been made to the Defendant. COURT’S FINDING [83] Thus, in view of all of the above discussions, it is this Court’s considered view that the payment of the sum to Swan is undoubtedly not a consideration in the form of a deposit and/or booking fee. The Plaintiffs have by and large, failed to prove this contention. [84] Therefore, it is this Court’s judgment that the Options are not in any manner binding agreements enforceable against the parties. THE PLAINTIFFS’ CONDUCT IRREVOCABLY ACKNOWLEDGES THE PAYMENT OF THE SUM IS NOT AN EXERCISE OF THE OPTIONS [85] Now, even with the payment of the earnest deposit (First stage payment) in the 1st Option, upon the expiry of the 1st Option, the Plaintiffs also admitted of its expiration and authorised its solicitors to issue the 2nd Option. [86] It is blatantly clear that the payment of the Deposit to the Plaintiff’s own solicitor is not proof of Defendant’s exercise upon the Option. It is similarly applicable to 2nd Option, the Defendant at any time has never exercised the Option. It is more sensible and logical that the payment of the deposit was not made to the Defendant but to the Plaintiff’s own solicitor. If this is not the case, the question would be, why in the face of that payment, would the Plaintiff themselves own up, admit and agree that the 1st Option has expired? Clearly the answer would be that the payments are: a. Not made to the Defendant; b. are not proofs of an exercise to the Option; and c. The Option Holder is the Defendant (who never exercised the Options) [87] Even assuming that the Court agrees that the Plaintiff is the Option Holder (which the Court totally disagrees), it is clear here that the mere act of paying the deposit to Swan and Partners (notwithstanding whether or not they are the Plaintiff’s solicitors) is not an act proving exercise of the Option. And this fact further plunges the Plaintiffs’ contention into the burrows of insensibility and improbability as now, they have no proof of exercise of the Option even with their feeble and fallible contention that the Plaintiff is the Option Holder (which the Court disagrees). [88] Many of the issues become moot because of the conduct of the Plaintiffs themselves. It is clear that the conclusion remains the same (that the Option was never exercised) notwithstanding the questions: a. Of who does Swan acts for? Because as discussed above, even the Plaintiffs acknowledge that payment of the deposit to Swan and Partners does not actuate exercise of the Option. b. Of who is the Option Holder? Because in both circumstances that the Plaintiffs or Defendant is the Option Holder, the payment of the Deposit still is not any proof of actuation or exercise of the Option. c. Of to whom were the deposits paid to? Because in both circumstances that the deposit was paid to Swan and Partners on behalf of the Plaintiff or the Defendant, the Plaintiffs still ultimately admit, acknowledge, and agree that the payment is not any proof of an exercise of the Option. [89] The overwhelming conclusion here is that, at no point in time that the Plaintiffs can assert that the payment of the Deposit to any party whosoever, is proof that the Options have been exercised by any of the Parties. It is plain and indeed simple. The Plaintiffs’ conduct in agreeing to the lapsing of the 1st Option after allegedly paying that deposit, infers that the payment of deposit is never a consideration or a variable in determining the exercise or non-exercise of the Option. [90] And the Plaintiffs should be estopped from contending otherwise. This Court is again guided by the principle propounded in the Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. THE 1ST OPTIONS ARE IMPOSSIBLE TO BE EXERCISED ANYWAYS [91] Section 5(1) of the Housing Development (Control and Licensing) Act 1966 prohibits a developer from carrying or undertaking housing development before a Developer’s License is obtained. Regulation 5(1) of the Housing Development (Control and Licensing) Regulations 1989 prohibits any advertisement or sale of any housing development prior to obtaining an Advertisement and Sale Permit. Failure to adhere to these provisions tantamount to an offence under Section 18 of the Housing Development (Control and Licensing) Act 1966. [92] The 1st Options are impossible to be exercised anyways. The 1st Options expire within the year 2006 while the APDL was only granted in 2007. There is factually and legally nothing exercisable or enforceable in the First Option. The parties could not legally enter into any sale and purchase agreement during the whole validity period of the 1st Options. Thus, indeed the 1st Options were inherently impossible to be exercised. THERE WAS ONLY A PRICE INCREASE AGAINST THE UNITS’ PRICE BUT NOT AGAINST THE PLAINTIFFS [93] The parties have also at length submitted and forwarded evidences on the issue of supposed price increase of the units comparative to the supposed indicative prices in the Options. [94] The issue whether or not new prices were informed to the Plaintiffs is irrelevant. The Plaintiffs’ claim is based on the Options which this Court finds to not be a binding contract. It is even acknowledged and admitted by the Plaintiffs themselves that the 1st Option has expired. The Plaintiff cannot be allowed to use the two Options as a benchmark to an increase of price. Whatever price which was set by the Defendant during the pre-launch or any time after the Options is not any manner relative to the Options which have expired and not exercised by the Defendant. [95] The price increase is merely a mathematical increase to the units and not an increase against the Plaintiffs. Against the Plaintiffs, the increased price is only a new price as in the first place, the Plaintiffs are not even entitled to the initial price in the Options as the Options have lapsed, not a binding contract and were never exercised by the Defendant. COURT’S DECISION AND DIRECTIONS [96] In light of all of the above findings, it is this Court’s decision that the Plaintiffs have indeed failed to prove their claim and consequently the totality of their case. [97] This Court hereby dismisses the Plaintiffs’ case. On the issue of costs [98] Having heard the submission from both counsels for the Plaintiffs and the Defendant, this Court hereby orders the Plaintiffs to pay the Defendant a global sum of RM 120,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 26th day of June, 2015. For the Plaintiffs - Tetuan Skrine & Co Encik Vijay Raj a/l Balasupramaniam For the Defendant - Tetuan Khaw & Partners Encik C.Y Koh 30

Tika 2.6.0

24-148-02/2014

PLAINTIF ALLIANZ GENERAL INSURANCE COMPANY (MALAYSIA) BERHAD DEFENDAN 1. MOHD FAUZI BIN ABDUL MANAF @ WAHI 2. MUHAMMAD ZULHILMI BIN NORAZALAN 3. JOHAIDEY NASUTION BIN JOHAN 4. WANTO

22/06/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8c26119d-5b13-4d4e-8b90-df5f4a54ebb4&Inline=true

Microsoft Word - 24-148-02- 2014 Alliance General Insurance Company vs Wanto 1    DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO. 24-148-02/2014 Dalam perkara mengenai Allianz General Insurance Company (Malaysia) Berhad (No. Sykt: 735426-V) DAN Dalam perkara mengenai tindakan sivil di Mahkamah Sesyen Shah Alam Guaman No. A53-267-06/2013 DAN Dalam perkara mengenai Seksyen 96 Akta Pengangkutan Jalanraya 1987 DAN Dalam perkara mengenai Aturan 5 Kaedah 3, Aturan 15 Kaedah 16, Aturan 28 dan Aturan 92 Kaedah 4, Kaedah- Kaedah Mahkamah 2012 ANTARA ALLIANZ GENERAL INSURANCE COMPANY (MALAYSIA) BERHAD … PLAINTIF DAN 1. MOHD FAUZI BIN ABDUL MANAF @ WAHI 2    2. MUHAMMAD ZULHILMI BIN NORAZLAN 3. JOHAIDEY NASUTION BIN JOHAN 4. WANTO ... DEFENDAN- DEFENDAN ALASAN PENGHAKIMAN (Kandungan 1 – Saman Pemula) [1] Plaintif {Allianz General Insurance Company (Malaysia) Bhd} telah memfailkan Saman Pemula (Kandungan 1) ini pada 6.2.2014, pada awalnya terhadap Defendan Pertama hingga Defendan Ketiga bagi mendapatkan suatu deklarasi bahawa Plaintif dibenarkan mengelak liabiliti di bawah Polisi Insuran Motorsikal No. 11VKJ904372 yang melindungi motorsikal No. BJJ 5763 dan juga untuk suatu deklarasi bahawa Polisi Insuran Motorsikal No. 11VKJ904372 tersebut telahpun luput dan / atau terbatal dan / atau tidak sah dan / atau tidak boleh dikuatkuasakan. [2] Namun, kemudiannya melalui Perintah Mahkamah bertarikh 28.11.2014, Wanto telah dijadikan sebagai pihak dan menjadi Defendan Keempat di dalam prosiding ini. 3    [3] Fakta ringkas yang menyebabkan Plaintif memfailkan Kandungan 1 ini adalah seperti berikut: i. Pada 20 April 2011, satu kemalangan jalanraya telah berlaku melibatkan motorsikal WPY 3751 dan motorsikal BJJ 5763. ii. Lanjutan daripada itu, penunggang motorsikal WPY 3751 iaitu Wanto telah memfailkan satu tuntutan sivil di Mahkamah Sesyen Shah Alam terhadap Defendan Pertama (Mohd Fauzi bin Abdul Manaf @ Wahi) dan Defendan Ketiga (Johaidey Nasution bin Johan) masing-masing sebagai penunggang motorsikal BJJ 5763 dan pemilik berdaftar motorsikal BJJ 5763 untuk tuntutan gantirugi am dan khas (“Tuntutan sivil tersebut”). Motorsikal BJJ 5763 tersebut telah dijual kepada Kedai Motor Kian Huat pada sekitar bulan Oktober 2011 dan menurut rekod pemilik terkini motorsikal tersebut adalah Defendan Kedua (Muhammad Zulhilmi bin Norazlan). iii. Motorsikal BJJ 5763 (“Motorsikal tersebut”) dilindungi di bawah Polisi Insuran Motorsikal No. 11VKJ904372 (“Polisi tersebut”) yang 4    dikeluarkan oleh pihak Plaintif di atas nama Defendan Ketiga bagi tempoh 9 Februari 2011 sehingga 8 Februari 2012; iv. Namun, tanpa pengetahuan Plaintif, Defendan Ketiga telah menjualkan motosikal tersebut kepada Defendan Pertama pada sekitar tahun 2009 atau tahun 2010 sebelum tarikh kemalangan. v. Defendan Keempat (Wanto) telah memohon untuk dijadikan pihak Defendan di dalam Saman Pemula ini atas alasan bahawa beliau adalah Plaintif atau pihak yang menuntut di dalam Guaman Sivil No. A53-267-06/2013 yang difailkan Mahkamah Sesyen Shah Alam pada 6.6.2013. vi. Walaupun Kandungan 1 dan affidavit sokongannya telah diserahkan kepada Defendan Pertama, Kedua dan Ketiga, namun ketiga-tiga Defendan tersebut telah tidak memasukkan kehadiran untuk menentang permohonan Plaintif. Hanya Defendan Keempat (Wanto) telah memfailkan affidavit bagi menentang permohonan Plaintif. Bagi maksud permohonan 5    Plaintif di dalam Kandungan 1 ini, Defendan Keempat selepas ini akan dirujuk sebagai “Defendan”. [4] Plaintif menafikan tanggungannya terhadap kemalangan yang berlaku atas alasan bahawa semasa kemalangan tersebut motorsikal BJJ 5763 tidak lagi dilindungi oleh insuran Plaintif. Menurut Plaintif setelah diserahkan dengan tuntutan saman oleh Defendan, Plaintif telah melantik penyelaras Logan Loss Adjusters (Adjusters) untuk membuat siasatan kemalangan. Hasil daripada siasatan yang dijalankan, Adjusters telah mendapati bahawa Defendan Ketiga pada sekitar tahun 2009 atau 2010 telah menjual motorsikal tersebut kepada Defendan Pertama pada harga RM 2000.00 tanpa pengetahuan Plaintif. Transaksi jual beli tersebut telah dibuat secara tunai tanpa sebarang perjanjian bertulis antara kedua penjual (Defendan Ketiga) dan pembeli (Defendan Pertama) serta tiada pertukaran nama pemilik motosikal tersebut dilaksanakan. [5] Laporan penuh Adjusters bertarikh 30.12.2015 telah dikemukakan oleh Adjusters kepada Plaintif dan dieksibitkan sebagai “Eksibit F- Kandungan 2 (Afidavit Sokongan). 6    [6] Justeru, adalah menjadi tegasan Plaintif bahawa semasa kemalangan berlaku polisi yang dikeluarkan Plaintif kepada Defendan Ketiga tersebut tidak lagi mempunyai kuatkuasa dan adalah terbatal. [7] Plaintif telah menghujahkan bahawa polisi insuran adalah satu kontrak persendirian yang tidak boleh dipindahmilik dan / atau diganti nama dan bagi menyokong hujahannya, peguam Plaintif telah merujuk kepada Mahkamah ini kepada beberapa kes sebagai otoriti. i) PETERS V GENERAL ACCIDENT & LIFE INSURANCE CORPN. LTD [1937] 4 AER 628 di mana Mahkamah telah memutuskan seperti berikut:- “(i) When the vendor sold the car, the insurance policy automatically lapsed. (ii) at the time of the accident, the purchaser could not be said to be driving the car by the order or with the permission of the vendor, as the car was then the purchaser’s own property. (iii) the insured is not entitled to assign his policy to a third party. An insurance policy is a contract of personal indemnity, and 7    the insurers cannot be compelled to accept responsiblility in respect of a third party who may be quite unknown to them.” ii) NEW INDIA INSURANCE CO LTD v. SIMIRAH [1966] 2 MLJ 1 di mana Mahkamah Persekutuan telah memutuskan bahawa:- “On the evidence in this case the ownership of the car had passed to Chong and therefore the insurers were not liable to satisfy the judgment.” iii) ROSLAN BIN ABDULLAH v. NEW ZEALAND INSURANCE CO. LTD [1981] 2 MLJ 324. Mahkamah Persekutuan telah memutuskan berikut: “(1) In this case, once ownership of the truck changed the insurance policy lapsed unless there was novation of the policy, which was not alleged. The driver of the truck was not covered by the insurance policy as there was no insurance policy at the same of the accident.” (2) the claim... 8    iv) KURNIA INSURANS (MALAYSIA) BERHAD v. PERSONAL REPRESENTATIVE OF ZENOL SAAD & ORS [2013] 1 LNS 239. Dengan merujuk kepada kes-kes Peters V General Accident & Life Insurance Corpn. Ltd [1937] 4 AER 628, Roslan Bin Abdullah V. New Zealand Insurance Co. Ltd [1981] 2 MLJ 324 dan Bibendum Sdn Bhd v. Amanah Scott Properties (KL) Sdn Bhd [2011] AMCR 792, Yeoh Wee Siam H telah menyatakan berikut: “...it is clear that upon the sale of the car by the Deceased to R2, and in the absence of any evidence of novation of the Policy, the insurable interest of the Deceased ceased. The policy automatically lapsed. The Deceased could not assign his Policy to R2 or any third party. Therefore, the insurers or the Applicant cannot be held responsible in respect of the third party such as R3 and R4.” [8] Plaintif juga telah bersandar kepada seksyen 96(1) Akta Pengangkutan Jalan 1987 (APJ) yang memperuntukkan berikut: “96.(1) Jika, setelah suatu perakuan insurans diserahkan di bawah subseksyen 91(4) kepada orang yang kepadanya sesuatu polisi telah 9    dikuatkuasakan, penghakiman berkenaan dengan apa-apa liabiliti yang dikehendaki dilindungi oleh sesuatu polisi di bawah perenggan 91(1)(b) (iaitu liabiliti yang dilindungi oleh terma polisi itu) diberi terhadap mana- mana orang yang diinsuranskan oleh polisi itu, maka walau apa pun penanggung insurans berhak mengelak atau membatalkan, atau telah pun mengelak atau membatalkan polisi itu, penanggung insurans tersebut hendaklah, tertakluk kepada seksyen ini, membayar kepada orang yang berhak mendapat faedah penghakiman ini, apa-apa jumlah wang yang kena bayar di bawah polisi itu berkenaan dengan liabiliti tersebut, termasuk apa- apa amaun yang kena dibayar berkenaan dengan kos dan apa-apa jumlah wang yang kena dibayar berkenaan dengan bunga bagi jumlah wang itu menurut kuasa mana-mana undang-undang bertulis yang berhubungan dengan bunga bagi penghakiman.” [9] Di samping itu, Plaintif juga telah menghujahkan bahawa Polisi insuran tersebut adalah untuk melindungi si diinsurans dan penanggung yang dibenarkan sahaja. Maka, bagi kemalangan yang berlaku antara Defendan Pertama dan Defendan, Plaintif adalah tidak bertanggungan atau tidak mempunyai apa-apa liabiliti kerana Polisi tersebut tidak memberikan perlindungan terhadap Defendan Pertama yang merupakan penunggang tanpa kebenaran [“unauthorized driver”] Defendan Ketiga. 10    [10] Defendan walau bagaimanapun telah berhujah bahawa Plaintif tidak boleh mengelak tanggungannya terhadap kemalangan yang berlaku atas penggunaan motorsikal BJJ 5763 atas tiga alasan berkut: (a) kemalangan telah berlaku pada 20 April 2011 dan pada tarikh tersebut polisi insuran No. 11VKJ904372 tersebut masih beroperasi dan pada masa kemalangan penggunaan motorsikal BBJ 5763 masih di dalam tempoh perlindungan Polisi tersebut. (b) terdapat perlepasan hak atau waiver oleh Plaintif untuk mempertikaikan keesahan Polisi tersebut kerana Plaintif telah dimaklumkan oleh Defendan mengenai niat Defendan untuk membuat tuntutan insurans kemalangan di bawah seksyen 96(2) Akta Pengangkutan Jalan 1987 dan apabila tuntutan sivil Defendan difailkan di Mahkamah Sesyen, Plaintif telahpun mewakili Defendan Ketiga. Justeru, Plaintif telah dari awal lagi telah menunjukkan niatnya untuk menepati Polisi tersebut. 11    (c) Plaintif adalah terikat kepada Motor Insurers’ Bureau of West Malaysia (MIB) Agreement iaitu perjanjian antara MIB dengan syarikat-syarikat insurans Malaysia (“Perjanjian MIB”) di mana di bawah perjanjian MIB ini, Plaintif hanya terhenti sebagai pemberi insurans berkaitan (insurer concerned) walaupun terdapat penjualan motorsikal apabila : i. terdapat insurans yang baru; atau ii. pemegang insurans sendiri telah membatalkan insurans tersebut. [11] Adalah menjadi hujahan peguam Defendan bahawa menurut perjanjian MIB ini, pihak Plaintif sebagai syarikat penanggung insurans telah bersetuju untuk tidak menafikan perlindungan pihak ketiga atas alasan penukaran hakmilikan kenderaan tersebut. Menurut peguam Defendan lagi, perjanjian MIB adalah suatu perjanjian istimewa antara kesemua pihak Insuran (syarikat-syarikat insuran) dengan Kementerian Pengangkutan bagi melindungi hak mangsa kemalangan jalanraya bagi mereka yang terlibat dengan kenderaan yang tiada insurans kenderaan. 12    [12] Untuk menyokong hujahannya di dalam tanggungan Plaintif atas kemalangan yang berlaku dengan berpaut kepada perjanjian MIB ini, peguam Defendan telah merujuk kepada kes AMGENERAL INSURANCE BHD v. SHARUL AHMAD & ANOR [2015] 1 CLJ 532 yang memutuskan antara lain: “The special agreement stipulated that the plaintiff was liable to satisfy the judgment obtained by the passenger in Singapore, ie, Zuraini, even though the policy did not cover passenger liability. Further, the plaintiff’s conduct in appointing the solicitor to defend the second defendant had waived its rights to deny liability on the policy. The plaintiff was thus liable to satisfy any judgment for damages or part thereof obtained by Zuraini in the Singapore suit against the second defendant. The second defendant was not in breach of the contract of insurance represented by the policy and the plaintiff was not entitled to an indemnity from the second defendant.” [13] Peguam Defendan juga telah merujuk kepada Klausa 1 perjanjian MIB yang memperuntukkan berikut: “Insurer concerned means the insurer who at time of the accident which give rise to ability required to be insured by Compulsory insurance... 13    An insurer is concerned within the meaning of this Agreement notwithstanding that:- There was a transfer of interest in the vehicle which the insurance purports to cover UNLESS:- (a) A subsequent insurance has been effected to cover OR (b) The insurance was cancelled at the request of the policyholder... [14] Menurut peguam Defendan lagi, melalui perjanjian MIB ini pihak plaintif sebagai syarikat insurans atau penanggung insurans (Insurer) hanyalah terhenti menjadi insurer concerned walaupun terdapat penjualan motorsikal HANYA apabila dua situasi timbul yakni samada terdapatnya atau wujudnya insurans yang baru atau pemegang polisi insurans sendiri membatalkan insuran tersebut. [15] Adalah menjadi hujahan peguam Defendan bahawa alasan Plaintif yang polisi insurans tersebut adalah ‘voidable/ boleh dibatalkan adalah pramatang dan tidak bersandarkan kepada alasan yang kukuh. 14    Dapatan Mahkamah [16] Plaintif di dalam menafikan atau mengelak liabiliti atau tanggungannya terhadap kemalangan yang berlaku kepada kenderaaan BBJ 5763 telah memohon kepadaa Mahkamah ini satu deklarasi bagi mengelak tanggungannya menurut seksyen 96 APJ. [17] Adalah satu kedudukan undang-undang yang jelas bahawa hubungan atau pertalian pihak-pihak di dalam satu polisi insurans adalah hubungan kontraktual yang berlandaskan kontrak insurans yang dimasuki pihak-pihak. Namun di dalam perihal insurans bagi kenderaan, terdapat pengecualian di dalam doktrin privity of contract melalui undang-undang statutori iaitu Akta Pengangkutan Jalan 1987 (APJ). [18] Seksyen 96 APJ pada amnya memperuntukkan mengenai kewajipan penanggung insurans untuk menunaikan hukuman terhadap orang- orang yang mengambil insurans berkenaan dengan risiko pihak ketiga. Seksyen 96(1) APJ telah memperuntukkan bahawa apabila penanggung insurans mengeluarkan atau menyerahkan perakuan insurans di bawah subseksyen (4) seksyen 91 kepada orang yang 15    kepadanya sesuatu polisi yang telah dikuatkuasakan, maka penanggung insurans adalah bertanggungan terhadap apa-apa penghakiman berkenaan dengan apa-apa liabiliti yang dikehendaki dilindungi oleh sesuati polisi di bawah perenggan (b) subseksyen (1) seksyen 91 (iaitu liabiliti yang dilindungi oleh terma-terma polisi itu) diberi terhadap mana-mana orang yang diinsuranskan oleh polisi itu dan juga membayar kepada orang-orang yang berhak mendapat faedah penghakiman itu, apa-apa jumlah wang yang kena bayar di bawah polisi itu berkenaan dengan liabiliti tersebut, termasuk apa- apa amaun yang kena dibayar berkenaan dengan kos dan apa-apa jumlah wang yang kena dibayar berkenaan dengan bunga bagi jumlah wang itu menurut kuasa mana-mana undang-undang bertulis yang berhubungan dengan bunga bagi penghakiman. [19] Namun, seksyen 96(1) ini juga memperuntukkan bahawa penanggung insurans berhak mengelak atau membatalkan, atau telah pun mengelak atau membatalkan polisi itu atas jumlah wang kena dibayar oleh seseorang penanggung insurans yang dinyatakan di perenggan 15, di dalam keadaan-keadaan yang dinyatakan di bawah seksyen 96(2) APJ yakni: 16    (a) berkenaan dengan apa-apa penghakiman, melainkan sebelum atau dalam masa tujuh hari selepas bermulanya prosiding dalam mana penghakiman itu diberi, penanggung insurans itu telah mengetahui mengenai prosiding tersebut; (b) berkenaan dengan apa-apa penghakiman, selagi perlaksanaannya digantungkan sementara menunggu rayuan; atau (c) berkaitan dengan apa-apa liabiliti, jika sebelum berlakunya kejadian yang menjadi sebab kematian atau kecederaan tubuh badan yang menimbulkan liabiliti polisi itu dibatalkan dengan izin bersama atau menurut kuasa apa-apa peruntukan yang terkandung di dalamnya dan sama ada – (i) sebelum berlakunya kejadian tersebut, perakuan itu telah diserahkan kepada penanggung insurans atau orang yang telah diserahkan perakuan itu telah membuat suatu akuan berkenaan menyatakan bahawa perakuan itu telah hilang atau musnah; (ii) selepas berlakunya kejadian tersebut, tetapi sebelum habisnya tempoh empat belas hari dari berkuatkuasanya pembatalan polisi itu, perakuan tersebut telah diserahkan kepada penanggung insurans atau orang yang telah 17    diserahkan perakuan itu telah membuat suatu akuan berkanun seperti yang tersebut dahulu; atau (iii) sama ada sebelum atau selepas berlakunya kejadian tersebut, tetapi di dalam tempoh empat belas hari tersebut, penanggung insurans telah memulakan prosiding di bawah Bahagian ini berkenaan dengan kegagalan menyerahkan perakuan. [20] Manakala seksyen 96(3) APJ pula memperuntukkan bahawa tiada apa-apa jumlah wang kena dibayar oleh seorang penanggung insurans di bawah subseksyen (1) jika, sebelum tarikh liabiliti ditanggung, penanggung insurans telah mengambil penetapan daripada mahkamah bahawa insurans itu tak sah dan tidak boleh dikuatkuasakan. Namun, hak untuk mendapat penetapan Mahkamah ini adalah dengan syarat bahawa seorang penanggung insurans yang telah memperolehi sesuatu penetapan seperti yang tersebut dahulu dalam sesuatu tindakan adalah tidak berhak mendapatkan faedah subseksyen ini berkenaan dengan apa-apa penghakiman yang diperolehi dalam prosiding yang dimulakan sebelum bermulanya tindakan itu melainkan, sebelum atau dalam masa tujuh hari selepas bermulanya tindakan itu, dia telah diberi notis 18    mengenainya kepada orang yang menjadi plaintif dalam prosiding tersebut menyatakan apa-apa alasan-alasan yang mana dia bercadang untuk mengasaskan, dan mana-mana orang yang diberi notis mengenai tindakan itu adalah berhak jika difikirkannya patut menjadi pihak kepada tindakan tersebut. [21] Plaintif di hadapan Mahkamah ini walaupun telah mengeluarkan polisi insurans tersebut terhadap motorsikal BBJ 5763 bagi tempoh 9.2.2011 hingga 8.2.2012 telah menafikan kebertanggungannya atas kemalangan yang berlaku pada 20.4.2011 di antara Defendan Pertama (Mohd Fauzi bin Abdul Manaf @ Wahi) dan Defendan atas alasan bahawa pemegang insurans atau orang yang diinsuranskan adalah Defendan Ketiga (Johaidey Nasution bin Johan). Pada masa polisi dikeluarkan Defendan Ketiga telah tidak memaklumkan kepada Plaintif bahawa motorsikal tersebut telahpun dijualnya kepada Defendan Pertama pada tahun 2010 lagi. Penjualan motorsikal tersebut hanya diketahui oleh Plaintif apabila Adjusters menjalankan siasatan atas kemalangan tersebut. 19    [22] Di dalam siasatan oleh Adjusters, Defendan Ketiga (Pemegang Insurans) sendiri tidak mengetahui mengenai kemalangan tersebut dan telah hanya mengetahui mengenai kemalangan berlaku pada bulan September 2013 apabila beliau menerima satu surat daripada Plaintif. Defendan Ketiga telah mengakui bahawa beliau telah menjual motorsikal tersebut kepada kawannya iaitu Defendan Pertama antara pada sekitar tahun 2009 atau tahun 2010. Menurut beliau walaupun penjualan telah berlaku pada tahun 2009 atau 2010, hakmilik motorsikal tersebut hanya ditukar kepada Fauzi pada bulan Oktober tahun 2011. Motorsikal ini kemudiannya telah dijual oleh Defendan Pertama kepada Kedai Motor Kian Huat pada sekitar bulan Oktober 2011. Penyataan-penyataan ini adalah jelas di dalam Surat- surat pengakuan Defendan Pertama dan Defendan Ketiga seperti di Eksibit F (Laporan Penyelaras bertarikh 30.12.2013). Untuk lebih jelas kedua-dua Surat Pengakuan diperturunkan: SURAT PENGAKUAN “Saya, Mohd Fauzi Bin Abdul Manaf Wahi, berumur 34 tahun (No. Kad Pengenalan: 791031-01-5939) dan Warganegara Malaysia dan menetap di No. 47- 09-05, Menara Orkid, Jalan 3/48A, Bandar Baru Sentul, 51000, Sentul, Kuala Lumpur dengan suci hati dan ikhlas mengisytiharkan seperti berikut:- 20    1. Saya seperti nama di atas telah membeli motorsikal, jenis Honda Wave 125, bernombor BJJ 5763 milik rakan sekerja saya, En. Johaidey Nasution Bin Johan (No. Kad Pengenalan: 731008-14-5685) pada sekitar 2010 dengan harga RM2,000.00 secara tunai tanpa sebarang perjanjian bertulis. 2. Semasa membeli motorsikal tersebut, saya tidak menukar nama pemilik kerana ingin menunggu sehingga cukai jalan dan insurans tamat tempoh. 3. Pada 20/04/2011, saya telah terlibat dalam kemalangan semasa memandu motorsikal No. BJJ 5763 di Lorong motorsikal, Lebuhraya Persekutuan dan saya telah membuat satu report polis No. K013216/2011 di Balai Polis Traffik Petaling Jaya. 4. Hanya pada sekitar 2011, saya telah membawa Encik Johaidey Nasution bin Johan ke Kedai Motor Kian Huat, Padang Jawa, Selangor di mana Encik Johaidey Nasution bin Johan telah menandatangani borang tukar nama pemilik dan saya terus menjual motorsikal tersebut kepada Kedai Motor Kian Huat. 5. Dan saya dengan suci hati mengisytiharkan dengan kesedaran mempercayai perkara yang tersebut di atas adalah benar mengikut peruntukan Akta Pengakuan Sumpah 1960.’’ ...” SURAT PENGAKUAN “Saya, Johaidey Nasution bin Johan, berumur 40 tahun (No. Kad Pengenalan: 731008-14-5685) dan Warganegara Malaysia dan menetap di No. 2-1-14, Pangsapuri Seri Nuang 2, Jalan Gunung Nuang U11/37, Bukit Bandaraya Seksyen 21    U11, 40170, Shah Alam dengan suci hati dan ikhlas mengisytiharkan seperti berikut:- 1. Saya seperti nama di atas adalah pemilik berdaftar motorsikal, jenis Honda Wave 125, bernombor BJJ 5763 pada tarikh 20/04/2011. 2. Pada sekitar tahun 2010, saya telah menjual motorsikal saya bernombor BJJ 5763 kepada rakan sekerja saya, Encik Mohd Fauzi bin Abdul Manaf Wahi (No. Kad Pengenalan: 791031-01-5939) dengan harga RM2,000.00 secara tunai tanpa sebarang perjanjian bertulis. 3. Semasa menjual motorsikal tersebut, saya tidak menukar nama pemilik kerana pemilik baru, En. Mohd Fauzi bin Abdul Manaf Wahi ingin menunggu sehingga cukai jalan dan insurans untuk tamat tempoh. Saya hanya menandatangani borang tukar nama pemilik pada sekitar Oktober 2011. 4. Saya dengan ini, mengisytiharkan bahawa saya tidak menyedar dan mengetahui tentang kemalangan tersebut pada tarikh 20/04/2011, motorsikal, No. BJJ 5763 tidak ada di dalam simpanan saya. 5. Saya hanya mengetahui tentang kemalangan tersebut pada September 2013 apabila menerima surat daripada Tetuan Allianz General Insurance Company (M) Berhad. Dengan saya dengan suci hati mengisytiharkan dengan kesedaran mempercayai perkara yang tersebut di atas adalah benar mengikut peruntukan Akta Pengakuan Sumpah 1960. ….” 22    [23] Di dalam hal ini, Mahkamah ini merujuk kepada peruntukan seksyen 91(1)(b) APJ yang memperuntukkan berikut: “(b) menginsuranskan bagi seseorang atau kumpulan orang sebagaimana dinyatakan dalam polisi itu berkenaan dengan apa-apa liabiliti yang ditanggung olehnya atau oleh mereka berkenaan dengan kematian atau kecederaan tubuh badan terhadap mana- mana orang yang disebabkan oleh atau yang timbul daripada penggunaan kenderaan motor itu atau perkakas tanah yang ditarik olehnya di jalan:” [24] Undang-undang mengenai polisi insurans yang diambil bagi sesuatu kenderaaan adalah jelas. Bagi maksud sesuatu polisi insurans bagi mana-mana kenderaan, seksyen 91(1)(b) APJ memperuntukkan bahawa sesuatu polisi insurans mestilah yang dikeluarkan oleh penanggung insurans yang menginsuranskan bagi seseorang atau kumpulan orang yang sebagaimana yang dinyatakan dalam polisi itu “persons or class of persons as may be specified in the policy”. [25] Polisi yang dikeluarkan oleh Plaintif kepada Defendan Ketiga adalah dengan jelas menyatakan bahawa polisi berkenaan hanya melindungi 23    “any other persons who is driving on the Policyholder’s order or with their permission” dan “Use only for social, domestic and pleasure purposes and by the Policyholder in person in connection with his business” [26] Mahkamah ini bersetuju dengan hujahan Plaintif di dalam kes ini bahawa polisi insuran yang dikeluarkan oleh Plaintif sebagai penanggung insuran dan Defendan Ketiga iaitu pihak yang diinsuranskan adalah satu kontrak persendirian yang nyata tidak boleh dipindahmilik dan / atau diganti nama. Ini jelas berdasarkan otoriti-otoriti yang dirujuk oleh peguam Plaintif. (Sila lihat : i. Peters v General Accident & Life Insurance Corpn. Ltd [1937] 4 AER 628. ii. New India Insurance Co Ltd v. Simirah [1966] 2 MLJ 1. iii. Roslan Bin Abdullah v. New Zealand Insurance Co. Ltd [1981] 2 MLJ 324. iv. Kurnia Insurans (Malaysia) Berhad v. Personal Representative Of Zenol Saad & Ors [2013] 1 LNS 239.) [27] Di sini, adalah jelas bahawa Defendan Ketiga di dalam Surat Pengakuannya mengaku telah menjual motorsikal tersebut kepada Defendan Pertama dan telah juga mengaku bahawa tidak 24    memaklumkan fakta ini kepada Plaintif. Malahan beliau telah mengaku telah tidak menukar nama pemilik motorsikal tersebut kepada nama pemilik baru kerana Defendan Pertama sebagai pembeli ingin menunggu cukai jalan dan polisi insurans tamat tempoh. [28] Memetik apa yang diputuskan di dalam kes Peters v General Accident & Life Insurance Corpn. Ltd [1937] 4 AER 628 apabila seorang tuanpunya kereta menjual keretanya, polisi insurans secara otomatik telah luput kuatkuasanya dan tidak lagi boleh dikuatkuasakan. Undang-undang berkenaan polisi insurans di dalam hal penjualan mana-mana kenderaan adalah jelas dan jitu. [29] Atas alasan ini sahaja, Mahkamah ini berpandangan bahawa Plaintif adalah berhak mendapat deklarasi yang dipohon. [30] Peguam Defendan telah berusaha untuk menyakinkan Mahkamah atas kebertanggungan Plaintif dengan cuba bersandarkan kepada perjanjian MIB yang mana telah dihujahkan bahawa Plaintif adalah 25    insurer concerned di dalam Klausa 1 (iv) yang dibacakan seperti berikut: “Insurer Concerned means the Insurer who at the time of the accident which gave rise to a liability required to be insured by the Compulsory Insurance Legislation was providing in insurance against such liability in respect of the vehicle arising out of the use of which the liability of the Judgment Debtor was incurred. An insurer is concerned within the meaning of this Agreement notwithstanding that – (i) ... (ii) ... (iii) ... (iv) ... (v) ... (vi) there was a transfer of interest in the vehicle which the insurance purports to cover unless:- (a) subsequent insurance has been effected to cover the vehicle, OR (b) the insurance was cancelled, at the request of the policy- holder. Strictly in accordance with the provisions of the Road Transport Act. ...” [31] Mahkamah ini sedar kewujudan perjanjian MIB ini dan perjanjian MIB ini adalah satu perjanjian dalaman (Domestic MIB Agreement/ 26    Memorandum of Agreement) di antara MIB dan syarikat-syarikat insurans Malaysia. Namun penelitian Mahkamah atas perjanjian MIB ini, “Insurer Concerned” di dalam perjanjian MIB telah ditakrifkan seperti berikut: “Insurer Concerned” means the Insurer who at the time of the accident which gave rise to a liability required to be insured by the Compulsory Insurance Legislation was providing an insurance against such liability in respect of the vehicle arising out of the use which the liability of the Judgment Debtor was incurred. [32] Dalam erti kata lain, penanggung insurans berkaitan bermaksud penanggung insuran pada masa kemalangan yang menimbulkan atau menyebabkan kepada satu tanggungan yang diinsurankan oleh undang-undang insuran (Compulsory Insurance Legislation). Tetapi di dalam kes ini, pihak Plaintif apabila mengetahui bahawa motorsikal BJJ 5763 telah dijual tanpa pengetahuannya, telah 27    membuat permohonan ke Mahkamah ini untuk mengelak atau menafikan liabilitinya menurut undang-undang. [33] Di dalam kes ini, Mahkamah ini berpandangan bahawa Plaintif tidak boleh diletakkan tanggungan atau liabiliti dalam kes tuntutan kecederaan diri yang dialami Defendan kerana polisi insurans yang dikeluarkan adalah kepada Defendan Ketiga secara peribadi (personal) yakni pemegang polisi dan bukannya Defendan Pertama yang telah membeli motorsikal BBJ 7653 daripada Defendan Ketiga sejak tahun 2009 atau 2010. (Sila lihat: New India Assurance Co. Ltd v Simirah [1966] 2 MLJ 1). [34] Di samping itu, di dalam perjanjian MIB itu sendiri terdapat Circular Resolution bertarikh 6hb Jun 1994 yang telah memasukkan kriteria- kriteria seperti berikut: A. CRITERIA FOR INSURER CONCERNED CLAIMS TO BE UNDERTAKEN BY MIB 3. PROOF FOR TRANSFER OF INTEREST CASE 28    (a) To prove transfer of interest, an insurer MUST provide the following to the Bureau :- (i) Statutory declaration of the insured affirming the sale of the vehicle prior to the accident; AND (ii) sale and purchase agreement or any proof of sale (e.g. receipt for down payment or full payment) confirming the transaction prior to the accident. OR (i) statutory declaration of the insured affirming the sale of the vehicle prior to the accident; AND (ii) statutory declaration of the buyer and/ or subsequent buyers confirming the transaction prior to the accident. UNLESS BOTH criterion in either of the above instances are provided, the claim remains the responsibility of the insurer to handle. (b) Police reports lodged by the insured and/or buyer on the alleged transaction may also be provided to the Bureau, if available. (c) … 29    4. CUT-OFF DATE FOR TRANSFER OF INTEREST CASE TO BE UNDERTAKEN BY MIB (a) Claims arising from accidents occurring on 1.1.1992 and thereafter involving transfer of interest can be referred to the Bureau immediately upon ratification of the amendments to the Domestic Agreement by members. [35] Di dalam hal ini, daripada kriteria yang dinyatakan di atas adalah jelas bahawa MIB telah bersetuju bahawa sekiranya terdapat sebarang pemindahan kepentingan (‘transfer of interest’) apabila kenderaan yang diinsuranskan oleh Plaintif telah dijual, Plaintif boleh merujuk perkara ini kepada MIB dan/atau MIB akan mengambil alih kes ini daripada pihak insurans. [36] Di dalam kes ini, telah jelas dibuktikan oleh Plaintiff melalui laporan oleh Adjusters atas kemalangan dan Surat-Surat Pengakuan oleh Defendan Ketiga dan Defendan Pertama bahawa motorsikal itu telahpun dijual oleh Defendan Ketiga kepada Defendan Pertama sebelum kemalangan berlaku dan Plaintif langsung tidak mengetahui transaksi ini sehingga kes tuntutan kemalangan difailkan di 30    Mahkamah Sesyen dan satu penyiasatan dijalankan oleh Plaintif. Di dalam hal ini, makanya, apabila kenderaan yang diinsuranskan oleh Plaintif bagi kepentingan Defendan Ketiga telah dijual oleh Defendan Ketiga kepada Defendan Pertama, Plaintif bukanlah lagi ‘insurer concerned’, atas sebab polisi insurans adalah peribadi (personal) kepada pemegang polisi iaitu Defendan Ketiga dan Defendan Pertama tidak boleh mendapat sebarang keuntungan atau kepentingan dalam polisi insurans yang dikeluarkan kepada Defendan Ketiga oleh Plaintif. [37] Justeru, di dalam kes ini, Plaintif sebagai penginsurans Defendan Ketiga hanya bertanggungjawab untuk menginsurans Defendan Ketiga sahaja, dan penunggang yang dibenarkan sahaja yang menunggang “on the Policyholder’s order or with their permission” dan digunakan “only for social, domestic and pleasure purposes and by the Policyholder in person in connection with his business” [38] Di dalam kes ini, motorsikal yang diinsuranskan oleh Plaintif telah ditunggang oleh seorang yang tidak mendapat kebenaran (non- authorised driver) dan oleh itu, Plaintif sebagai penginsurans 31    Defendan Ketiga tidak mempunyai apa-apa tanggungan kerana Defendan Ketiga tidak bertanggungan dalam kejadian kemalangan dengan Defendan memandangkan motorsikal tersebut telah dijual oleh Defendan Ketiga kepada Defendan Pertama sebelum kemalangan tersebut berlaku. [39] Di dalam hal liabiliti atau tanggungan ini, Mahkamah ini tidak boleh lari dari merujuk kembali kepada peruntukan seksyen 96(1) APJ berkenaan “judgment in respect of any such liability” sebelum pihak Plaintif boleh didapati bertanggungan. Takrifan perkataan liabiliti “liability” atau tanggungan ini telahpun dinyatakan dengan jelas oleh Mahkamah Persekutuan di dalam kes Malaysia National Insurance Sdn Bhd v. Lim Tiok [1997] 2 CLJ 351 seperti berikut:- “It is therefore not unfair to say that “liability” in law, unless the context otherwise requires, means a duty owed to another enforceable by sanctions. However, when used in the context of liability insurance ordinarily means liability to pay a definite sum imposed by a final judgment against an insured or by an 32    award or a settlement by way of an agreement”. (penekanan oleh Mahkamah) [40] Justeru, telah diputuskan oleh Mahkamah Persekutuan bahawa liabiliti yang ditanggung oleh penanggung insurans adalah tanggungan membayar jumlah yang dikenakan oleh penghakiman terhadap orang yang dinsuranskan atau awad ataupun perjanjian penyelesaian. Di dalam kes ini, Plaintif telah menafikan liabilitinya dengan pemfailan permohonan ini untuk mendapat penetapan Mahkamah atas ketidakbertanggungannnya atas apa-apa tuntutan kecederaan yang dialami oleh Defendan atas kemalangan yang berlaku antara motorsikal yang ditunggangnya dan motorsikal BBJ 5763 kerana Defendan Pertama ataupun Defendan Kedua bukanlah orang yang telah dinsurans di dalam polisi tersebut dan tunggangan motorsikal BBJ 5763 oleh Defendan Pertama tidaklah dengan kebenaran Defendan Ketiga. Defendan Ketiga sebagai pemegang Polisi tidaklah bertanggungan secara vikarius terhadap Defendan Pertama yang menunggang motorsikal tersebut apabila kemalangan berlaku. Di dalam kes ini, adalah dapatan Mahkamah ini bahawa 33    tidak ada liabiliti wujud ke atas Defendan Ketiga untuk ditanggung oleh Plaintif. [41] Mahkamah ini suka merujuk kes Ahmad Sandara Lela Putera & Anor v. Queensland Insurance Co. Ltd [1975] 1 MLJ 269 yang dirujuk oleh peguam Plaintif. Mahkamah di dalam kes Ahmad Sandara Lela Putra telah memutuskan bahawa pihak insurans tidak bertanggungan terhadap liabiliti yang mungkin diperolehi terhadap non-authorised driver seperti Defendan Pertama. Di dalam kes Ahmad Sandara Lela Putra ini, Ajaib Singh H telah merujuk kepada peruntukan seksyen 80(1) Road Traffic Ordinance 1958 yang sama dengan peruntukan seksyen 96(1) APJ . Antara lain telah diputuskan oleh Ajaib Singh H di muka surat 270 seperti berikut: “The Plaintiff claim against the defendant company must fail. A policy of insurance in respect of a motor vehicle is a contractual agreement between the parties concerned and subject to the statutory provisions in Part IV of the Road Traffic Ordinance 1958, relating to compulsory insurance against third party risks, the parties are absolutely free to decide on the terms and conditions that they wish to incorporate in the policy provided that those terms and 34    conditions are not otherwise illegal or contrary to law. Section 79 of the Road Traffic Ordinance contains a list of restrictions which can have no application on the scope of policies relating to third party risks but a stipulation restricting the driving of a vehicle to the insured himself is not one of the matters listed therein. In the present case the insured and the defendant company were in no way infringing any provision in the Road Traffic Ordinance by agreeing between themselves that the defendant company should not be liable in respect of any accident while the motor cycle was being driven by any person other than the insured himself. At the time of the accident the motor cycle was being driven not by the insured but by some other person and, therefore, as the motor cycle was being used outside the limits of the policy the defendant company was well within its right in repudiating liability. The defendant company was not under any risk in respect of the motor cycle within the terms and conditions of the policy at the time of the accident so that the judgment which the plaintiffs obtained against the insured was not a judgment in respect of a liability covered by the terms of the policy within the meaning of section 80(1) of the Road Traffic Ordinance, 1958.” 35    [42] Di dalam kes ini Mahkamah ini juga membawa perhatiannya kepada Seksyen 96(2)(a) APJ. Seksyen 96(2)(a) APJ memperuntukkan bahawa: “Tiada apa-apa jumlah wang kena dibayar oleh seseorang penanggung insurans di bawah subseksyen (1) – berkenaan dengan apa-apa penghakiman, melainkan sebelum atau dalam masa tujuh hari selepas bermulanya prosiding yang penghakiman itu diberi, penanggung insurans itu telah mengetahui mengenai prosiding tersebut; ……”(Penekanan Mahkamah ini) [43] Di dalam kes ini, apabila dibaca perenggan 4 afidavit sokongan Sufaizah Abd Shukor yang diikarkan pada 9 Januari 2014 (Kandungan 3), perenggan 4 ini telah menyatakan bahawa pihak Plaintif telah hanya diserahkan dengan notis statutori menurut seksyen 96(2) APJ pada Ogos 2013 (Ekshibit-A Kandungan 2). Penyerahan notis statutori kepada Plaintif telah hanya dibuat pada bulan Ogos 2013 ini telah tidak disangkal oleh Defendan malah ianya diakui diperenggan 5 afidavit sokongan Roslinda Yahya yang diikrarkan pada 3 Mac 2014 (Kandungan 5) yang difailkan bagi menyokong permohonan Defendan untuk dijadikan pihak di dalam prosiding ini. 36    [44] Di perenggan 5 Kandungan 3, telah dinyatakan bahawa tuntutan sivil di Mahkamah Sesyen tersebut telah difailkan pada bulan Jun 2013 iaitu sebelum notis statutori diberikan kepada pihak Plaintif dan fakta ini tidak disangkal oleh pihak Defendan pun. Di dalam hal ini, Mahkamah ini berpandangan bahawa seksyen 96(2) APJ adalah terpakai dan pihak Plaintif tidak boleh dikehendaki menanggung liabiliti untuk penghakiman dalam tuntutan sivil tersebut kerana pihak Plaintif tidak memperolehi notis statutori daripada pihak Defendan tujuh (7) hari sebelum atau selepas tuntutan sivil tersebut dimulakan. [45] Mahkamah ini merujuk kepada keputusan Low Hop Bing H (YA ketika itu) di dalam kes Malaysia & Nippon Insurans Bhd v Low Buck Ngoh & Anor [2005] 7 CLJ 11. Low Hop Bing H di dalam kes Malaysia & Nippon Insurans Bhd telah memutuskan antara lain bahawa: “It is significant to note that s. 96(2)(a) specifically creates an exception unless the insurer had notice of the proceedings.” 37    [46] Pandangan yang sama boleh dilihat kepada keputusan Vincent Ng H (YA ketika itu) di dalam kes Badruzamani Azmi v Kurnia Insurans [2001] 4 CLJ di 288 yang menyatakan antara lain: “Thus, the insurers have a statutory right to be informed of the proceedings right from its inception. Should the plaintiffs fail to give notice of the judgment to the insurers, the insurers need not heed the court’s judgment.” [47] Berdasarkan alasan-alasan di atas, Mahkamah ini telah membenarkan Kandungan 1 Plaintif dengan kos. Mahkamah ini juga telah mengarahkan Defendan membayar kos permohonan ini kepada Plaintif sebanyak RM 2000.00. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 22 Jun 2015 38    Peguam Plaintif - Tetuan Othman Hashim & Co Cik Jaswinder Kaur Encik Muaz Peguam Defendan - Tetuan Gunaseharan & Linda Cik Roslinda Yahya

Tika 2.6.0

22NCVC-71-02/2014

PLAINTIF BIDARI EHSAN SDN BHD (IN LIQUIDATION) DEFENDAN INAI TROPIKA SDN BHD

16/06/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=75c833b0-33ef-4e7a-85f8-b03fc41a2e08&Inline=true

Microsoft Word - 22NCVC-71-022014 Bidari Ehsan Sdn Bhd v Inai Tropika Sdn Bhd 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 22NCVC-71-02/2014 BETWEEN BIDARI EHSAN SDN BHD (IN LIQUIDATION) .... PLAINTIFF AND INAI TROPIKA SDN BHD .... DEFENDANT GROUNDS OF JUDGMENT (After Full Trial) BACKGROUND FACTS [1] This present case is a fairly simple and uncomplicated case. It took only one full day to complete the trial. During the trial only four (4) witnesses testified. To prove its case, the Plaintiff called two (2) witnesses namely, Mr Augustine A/L T.K. James, the Liquidator of the Plaintiff who is currently running and managing the affairs of the 2    Plaintiff and a subpoenaed witness, Rabiha Ibrahim (PW-2), a partner of the firm of solicitors known as Messrs. Rabiha Ibrahim & Associates (formerly known as Messrs. Rahayu Rabiha & Associates) who acted for the Defendant in the sale and purchase transaction between the Plaintiff (as developer) and the Defendant (as purchaser). Meanwhile, the Defendant called Irwan Haniz bin Ismail (DW-1), a former director of the Plaintiff prior to the Plaintiff’s winding up and Datin Hasnah binti Wahab (DW-2), a director of the Defendant to give evidence in refuting the Plaintiff’s claims against the Defendant. [2] The Plaintiff in the present case is a company by the name of Bidari Ehsan Sdn Bhd, a Holding Company (in which the Defendant is a subsidiary of) incorporated in Malaysia under the Companies Act 1950. The Defendant (Inai Tropika Sdn Bhd) is a subsidiary of the Plaintiff similarly incorporated in Malaysia under the Companies Act 1950. The Plaintiff is currently in liquidation pursuant to a High Court Order dated 14.4.2011. 3    [3] The Plaintiff claims against the Defendant for sums alleged still unpaid by the Defendant under a Sale and Purchase Agreement dated 31.7.2007 (“July Agreement”) which the Plaintiff has agreed to develop and the Defendant has agreed to purchase three parcels of land (“properties”) from Koperasi Belia Islam Malaysia Berhad (“KBIMB”) for a consideration of RM 9.3 million (which the Plaintiff is the beneficial owner of these properties pursuant to a Joint Venture Agreement (“JV”) dated 14.4.2000). (See pages 16 to 47 of the Common Bundle of Documents (“CBD”) for the July Agreement. [4] The JV is simply an agreement entered between the Plaintiff and KBIMB to develop the properties. KBIMB is the previous proprietor of the properties. [5] It is also an agreed fact in paragraph 6 of the Statement of Agreed Facts (Enclosure D) that KBIMB has granted the Plaintiff the right to develop the said properties into a mixed development project (“project”), sell the units of properties in the project and keep the proceeds from the sale. Thus, any proceeds from the sale of the 4    properties shall be ultimately paid to the Plaintiff. This is admitted by both the Parties. [6] The July Agreement is a continuance of the JV in that KBIMB and the Plaintiff agree to sell the properties to the Defendant. (See clause 2.01 of the July Agreement at page 21 of the CBD) [7] Mr. Augustine A/L T.K. James (PW-1) was appointed as the Plaintiff’s liquidator on 13.3.2013, after the demise of the first liquidator, one Mr. Sha Thiam Fook. As the Plaintiff’s liquidator, in the exercise of his duties to pull all the assets and liquidate the Plaintiff’s assets, the liquidator has identified that the Defendant remains to be the one of the Plaintiff’s debtor. This is mainly because the liquidator was unable to find any documents indicating that the Defendant has ever paid the purchase price pursuant to the July Agreement. [8] Alluding to the July Agreement, the salient terms agreed between the parties of the July Agreement are the following: 5    a. The Purchase price is RM9,300,000.00 (see Para 7 of the Preamble of the July Agreement at page 19 of the CBD; b. RM560,000.00 is deemed paid to the Plaintiff as deposit upon signing the July Agreement. (See Clause 3.01 of the July Agreement at page 22 of the CBD); c. the Balance purchase price of RM8,740,000.00 is to be paid to the Stakeholders within 90 days from the date of the July Agreement. (See Clause 3.01 of the July Agreement at page 22 of the CBD); d. the Defendant entered the July Agreement in full reliance of the representation, warranties and declaration made by the Plainitff and KBIMB. (See Clause 15.02 of the July Agreement at page 29 of the CBD); and e. there are no previous sale or agreements for the sale of the said properties or any part thereof which was still subsisting and which have not been validly and lawfully terminated at the 6    time the July Agreement is signed. (See para 15.01(e) of the July Agreement at page 29 of the CBD) [9] PW-1 as the liquidator then pursued to trace the status of the payment as per the July Agreement. Upon conducting a land office title search, the extracted Memorandum of Transfer, Form 14A (“MOT”) indicates that the properties were sold pursuant to the July Agreement. The MOT reads: “Sebagai balasan wang sebanyak RM9,300,000.00 yang dengan ini kami mengaku telah terima oleh BIDARI EHSAN SDN BHD…sebagai Pemaju di dalam Surat Perjanjian Jual Beli bertarikh 31.7.2007” [10] Clearly,at this early juncture that even the title of the properties indicate that the transfer of properties were conducted in pursuant of the July Agreement. [11] PW-1 then further traced the payment to the previous Solicitor who acted on behalf of the Defendant in the July Agreement. Upon 7    enquiry, the Solicitor had furnished the Plaintiff some documents, inter alia a Letter of Offer from KBIMB, bills, vouchers, receipts cheques, letters of instructions and letter of confirmation. [12] According to the document provided by the solicitor, it was found that firstly, the Defendant has directly paid RM1,300,000.00 to the Plaintiff. Thus, the remainder amount unpaid is RM7,440,000.00. This was confirmed vide numerous documents. All of these documents indicate that there is a differential sum which was paid by the Defendant leaving a balance of RM7,440,000.00. The remainder amount after deposit payment was RM8,740,000.00. The differential sum between RM8,740,000.00 and RM7,400,000.00 is RM1,300,000.00. (See solicitors’ letter dated 6.4.2012 at page 110 to 111 of the CBD; paragraph (e) of the solicitors’ letter dated 8.1.2008 at pages 115 to 116 of the CBD; Bank Deposit Slip and Cheque at page 135 of the CBD). [13] Secondly, the remaining unpaid sum of RM7,440,000.00 shall be paid vide the Defendant’s loan from KBIMB. (See Letter of Offer (“LO”) from KBIMB dated 5.11.2007 at page 52 of the CBD). The 8    Solicitors’ letter dated 6.4.2012 at page 110 to 111 of the CBD at paragraph 3 reads: “The amount of the Purchaser’s loan is RM7,440,000.00 only, a copy of the letter of offer dated 5 November 2007 is enclosed herewith as Appendix 3” See also paragraph (e) of the solicitors’ letter dated 8.1.2008 at pages 115 to 116 of the CBD; Bank Deposit Slip and Cheque at page 135 of the CBD for the relevant contemporaneous documents clearly proving this loan facility. [14] The Defendant’s solicitors confirmed that the loan facility has already been paid to them as stakeholder on behalf of the Defendant. It is the Plaintiff’s case that this loan amount paid to the Defendant’s solicitors ultimately was never paid to the Plaintiff as proceeds from the sale of the properties. [15] The Plaintiff claims only a portion of the remainder sum as it was only able to trace certain transactions paid using the Loan Facility to the 9    benefit of the Defendant vide two letters of instructions both dated 18.1.2008 (“instructions”). [16] The Defendant’s case however, is that allegedly there was a previous Internal Agreement prior to the July Agreement dated 12.2.2007 (“February Agreement”), which is the main agreement regarding the sale and purchase of the properties. According to this previous February Agreement, the agreed purchase price is a lower price of RM2,000,000.00. [17] It is the Defendant’s case that the February Agreement is the prevailing and applicable agreement on the grounds that the July Agreement was allegedly a sham to obtain a larger facility from KBIMB. [18] However, it is to be noted here that the Defendant’s submission on their case is somewhat bare and brief. [19] With the aforementioned facts in mind, it is this Court’s considered view that the pertinent issues to be determined are: 10    (a) Whether the July Agreement a sham agreement to obtain facilities from KBIMB? (b) Which of the Agreements is the prevailing and applicable agreement dictating the terms of sale of the properties? (c) Whether the Defendant is liable to pay the Plaintiff the remainder sum unpaid pursuant to the July Agreement? ISSUE (a): WHETHER THE JULY AGREEMENT A SHAM AGREEMENT TO OBTAIN FACILITIES FROM KBIMB? Total absence of submission and evidence of sham [20] From the outset, and even more apparent in the Defendant’s barren submissions, the Defendant has not produced an inkling of relevant evidence to substantiate their allegation that the July Agreement is a sham. It is merely a bare allegation made by the Defendant. 11    [21] The Defendant’s case is merely that the July Agreement was a cloak to the February Agreement to obtain further facilities from KBIMB. However, there is a total absence of evidence of any concoction, mechanism or anything at all to draw an inference that the July Agreement was a sham. The July Agreement is a valid agreement executed by the Parties. There is no reason at all for the Court to infer otherwise. [22] There is no merit at all to the contention that the July Agreement was a sham merely because it is incoherent to the terms of the February Agreement. It is not uncommon that parties to a contract to enter into numerous contracts through a certain course of time in the pursuit to reach the finality of all terms agreed by the parties. Variations and differences between these contracts do not at any point in time indicate that the varying contract is a sham. [23] The onus lies on the Defendant to prove its assertion that the July Agreement is a sham. And the Defendant had failed to fulfil this onus of proof. Thus, as per Sections 102 and 103 of the Evidence Act 1950, this contention by the Defendant shall fail. This Court is guided 12    by the Federal Court decision in the case of International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 which has held: “According to sections 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or give evidence which is not sufficient, such party must fail” (See also Nanyang Development (1966) Sdn Bhd v How Swee Poh [1970] 1 MLJ 145) The July Agreement is marked as Part A document [24] Furthermore, the parties, particularly the Defendant has already admitted to both the authenticity and the content of the July Agreement as the July Agreement was marked as a Part A document. And the law is trite in this respect. In that, a document marked as Part A document cannot be put under scrutiny or be asked any question on. This Court finds valuable guidance from the Court of Appeal decision in the case of Raja Lob Sharuddin bin Raja Ahmad 13    Terzali & Ors v Sri Seltra Sendirian Bhd [2008] 2 MLJ 87 which has held: “…And if a document is put in bundle A, where the parties have agreed to its production and content, no party would be allowed to ask any question at all on that document…” [25] Thus, it is this Court’s considered view that the July Agreement is a valid enforceable agreement and is not a sham agreement. ISSUE (b): WHICH ONE OF THE TWO AGREEMENTS IS THE PREVAILING AND APPLICABLE AGREEMENT DICTATING THE TERMS OF SALE OF THE PROPERTIES? [26] This Court does not really have to look beyond the written terms of the July Agreement to determine this issue. The terms of the July Agreement itself are sufficiently self-explanatory that it supersedes any previous agreements prior to the execution of the July 14    Agreement. Nevertheless, for the sake of completeness, the Court shall also briefly delve into other evidences to the same effect. Clause 15.01(e) of the July Agreement is sufficiently clear and no proof of revocation is required. [27] It is trite law in the interpretation of contracts that the Court as far as possible must take the literal interpretation of the contract in respecting the parties’ autonomy in agreeing to the terms of a particular contract. If the words utilised in the contract is sufficiently clear in its literal meaning, there is really no reason at all for the Court to look beyond the plain meaning of the written words of the Contract. [28] It is sufficiently clear from a plain reading of Clause 15.01(e) of the July Agreement that the July Agreement supersedes, nullifies, invalidates any previous agreements had in relation to the sale of the properties. The Clause reads: “The Developer and Proprietor hereby jointly and severally covenant, warrant and undertake to the Purchaser that:-… 15    (e) that there are no previous sale or agreement for the sale of the said Property or any part thereof which are still subsisting and which have not been validly and lawfully, terminated or rescinded…” [29] It is sufficiently clear from the clause above that it is the intention of all parties (especially the Defendant) of the July Agreement that there shall be no prior or previous agreement which remains valid or subsisting upon the execution of the July Agreement. [30] This Court is guided by the case of Syarikat Binaan Utara Jaya ( A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50, Abdul Malik Ishak, JCA from the available authorities had in para 17 of the Court of Appeal’s judgment, with regard to construction of a contract where the language employed is clear, had made the following propositions: “(a) the Court must give effect to the plain meaning of the words, no matter how distasteful the result may be (The Central Bank 16    of India Ltd. Amritsrar v. The Hartford Fire Insurance Co. Ltd. [1965] AIR Vol. 52, 1288 SC); (b) where the language in the document is unambiguous and clear, the real nature of the document is to be determine solely by looking at its contents, uninfluenced by any intention of the parties ((Nawab Major Sir) Mohammad Akbar Khan v. Attar Singh and Others [1936] AIR Vol. 23, 171 PC); (c) when the minds of the parties are expressed in an unambiguous manner, the Court cannot override the declared intention of the parties unequivocally expressed (K. Appukuttam Panicker and Another v. S.K.R.A.K.R Athappa Chettiar and Others [1966] AIR Vol.53, 303 Kerala); and (d) there is no scope, at all, for drawing upon hypothetical considerations or the supposed intention of the parties when the words contained in the contract are clear and unambiguous (The Union of India v. Kishorilal Gupta and Bros. [1959] AIR Vol. 46, 1362 SC).” All other contemporaneous documents indicate that the July Agreement is the prevailing and applicable contract 17    [31] Even the MOT stipulates that the consideration for the transfer of the Land to the Defendant was for the consideration of RM9,300,000.00 (which is coherent to the terms of the July Agreement). [32] The Defendant has never produced any proof that the RM2,000,000 consideration is the relevant consideration in realising the transfer of the said properties. [33] The Defendant’s solicitor’s letter dated 6.4.2012 has already admitted that the amount of Purchaser’s loan is RM7,440,000.00. (Which is the remainder sum after deducting the deposit payment as per the July agreement and also the direct payment of RM1,300,000.00 to the Plaintiff) [34] The LO also stipulates that the value of the properties shall not be less than RM9,300,000.00. Clause 13.0 (E) reads (see page 56 of the CBD): “A valuation report over the “Property 1” and “Property 2” to be pledged as security, addressed to the Bank by a valuation firm on the 18    Bank’s panel has been submitted. The valuation report shall confirm that the value of the properties on “as is where is” basis not less than RM9.3 million” [35] The “Notis Taksiran Kekal Selepas Rayuan Duti Setem Pindah Milik Hartanah” (“Assessment Notice”) dated 18.1.2008 from the Inland Revenue Board stipulated that the market value at the time was RM11,838,000.00. (See pages 68 to 69 of the CBD). Thus, it makes no commercial sense that the Plaintiff would sell the properties for RM2,000,000.00 which is approximately five times lower than the market value of the properties. [36] The Defendant’s former Chief Executive Officer, Haji Shaharom bin Haji Mohd Yusof has also confirmed through paragraph 8 of his Statutory Declaration dated 13.1.2012 (“SD”) that the actual consideration for the properties was RM9,300,000.00 which is coherent to the July Agreement. 19    [37] Thus, with the plain reading of the July Agreement, and the numerous contemporaneous documents above, it is indeed very compelling that the July Agreement supersedes the February Agreement. The Plaintiff’s may rely on the SD without calling the maker of the SD [38] In its desperate attempt to concoct a defence, the Defendant fallibly submitted that the Plaintiff ought not to be allowed to rely on the SD as such reliance without calling the maker of the SD is hearsay evidence and is inadmissible. The Defendant even urged the Court to draw an adverse inference under Section 114(g) of the Evidence Act 1950 for their failure to call the maker to testify on the SD. [39] This Court wholly disagrees with the Defendant’s contention. The objection is totally is unwarranted. The contention by the counsel for the Defendant is clearly erroneous in light of established law and practice. The parties here have included or placed the SD as a “Part B” document in the Common Bundle of Documents (”CBD”), in which the authenticity of Part B Documents are never an issue. It is trite law that documents marked as Part B document, need not be verified by 20    calling the maker of the document in order to make the document admissible. There is no requirement for the Plaintiff to call the maker of the document in “Part B” in order for the Plaintiff to be allowed to rely on the SD as the authenticity and existence of the document is admitted and is undisputed. Now, when the Rules of Court 2012 (ROC 2012) came into force on 1.8.2012, the legal position of Part B documents is settled. Order 34 r. 2 of the ROC 2012 states in clear terms that documents in “Part B” are documents where its authenticity is not disputed but only the contents are disputed. [40] In the present case only one Bundle of Documents was filed by both parties namely the CBD. This CBD comprises of Part A and Part B documents only. The SD was placed as Part B document and was referred by the Plaintiff during the trial when PW-1 gave evidence. Q: I refer you to the page 105-107 of the Common Bundle of Documents. What document is this? A: This is a Statutory Declaration affirmed by Haji Shaharom bin Haji Mohd Yusof on 13.1.2012. Q: Who is Haji Shaharom bin Haji Mohd Yusof? A: He is the former Chief Executive Officer of the Plaintiff. 21    Q: Why did Haji Shaharom bin Haji Mohd Yusof affirm this Statutory Declaration? A: This Statutory Declaration was made and affirmed by him after he met Mr. Sha Thiam Fook. He wanted to disclose that the Plaintiff is a wholly owned subsidiary of the Defendant and as such the Defendant had total control of the Plaintiff at the material time. Q: What else had he disclosed to the previous Plaintiff’s Liquidator, Mr. Sha Thiam Fook? A: Among others he had also disclosed the following information: (i) The Plaintiff’s shareholders’ sold their entire 1,000,000 shares in the company to the Defendant and the Defendant took over the management and control of the Plaintiff from 1.1.2007. (ii) The main shareholders of the Defendant at the material times were one Datin Hasnah binti Wahab and her daughter Norhazwani Hanis binti Datuk Dr Ismail. Both of them are the wife and daughter of the late Prof. Datuk Dr. Ismail Md. Salleh. (iii) Upon the Defendant taking over the Plaintiff, the Defendant appointed 2 new directors in the Plaintiff’s board of directors to replace the then directors. The 2 new directors are Mohd Fahmin bin Zakaria and Irwan Hanis bin Ismail, who are respectively the nephew and son of the late Prof. Datuk Dr. Ismail Md. Salleh. [41] The Defendant had not at any point of time disputed or challenged the contents of the SD at the trial. 22    [42] Based on the above grounds, the Defendant must be precluded from raising an objection that the Plaintiff must be disallowed to rely on the SD. It is this Court’s judgment that the Plaintiff ought to be allowed to place reliance to the SD. The Plaintiff has never admitted that the Defendant no longer owes monies to the Plaintiff. [43] The Defendant very briefly submits that the Plaintiff’s witness, which is the Defendant’s solicitors have admitted that there were no longer sums due by the Defendant to the Plaintiff. Nonetheless, this Court highlights that the Defendant has taken this supposed admission out of its original context. [44] The admission is only in the context of the instruction. The admission is not on the amount due but merely in the disbursement of the monies (from the loan granted) based on the instruction. What PW-2 meant was, only to the extent of the instruction, there was no monies indicated (on that instruction) to be payable to the Plaintiff. 23    [45] Never at any point in time was that admission was intended to apply in an encompassing manner to cover the sums still owed by the Defendant. Accepting the instructions does not denote acquiescence or foregoing the remainder sum unpaid [46] The Defendant’s other contention was that the disbursement of the loan facility received is also on the Plaintiff’s instruction and thus, the Plaintiff has deemed the payment has been received when the monies were disbursed according to its own instruction. [47] Although the instructions were never objected to by the Plaintiff, the instructions merely prove that the Plaintiff allows the monies to be disbursed in that manner at that point in time. [48] It never proves that the affirmation of such payment is a deeming act of receipt, acquiescence or foregoing of the balance purchase price. 24    [49] Albeit it is allowed, there’s nothing from the instruction that indicates that the Plaintiff deems the balance of the purchase price is paid in allowing the numerous disbursement, or that the Plaintiff will no longer pursue the balance purchase price. Ultimately, the Plaintiff still intends to be paid as proceeds from the sale of properties. Never at any point in time that the Plaintiff intended to impart with this right to claim for the payment of the remainder sum. [50] Thus it is this Court’s considered view that the July Agreement clearly is the prevailing and applicable agreement dictating the term of sale of the properties. It is also this Court’s decision that there is no requirement at all for the Plaintiff to prove that the February Agreement has expressly been revoked to make way to the July Agreement. ISSUE (c): WHETHER THE DEFENDANT IS LIABLE TO PAY THE PLAINTIFF THE REMAINDER SUM UNPAID PURSUANT TO THE JULY AGREEMENT? 25    [51] It naturally entails that upon the subsistence and enforcement of the July Agreement, the Defendant is indeed liable to pay the Plaintiff the remainder sum unpaid. [52] It is clear from the Plaintiff’s case that their claim for the remainder sum depends solely on the documents which were furnished by the Defendant’s solicitor which is PW-2. And those documents have shown the manner the loan facility for the remainder sum was disbursed to numerous parties as per the instructions dated 18.1.2008. The Plaintiff then traced these disbursements and identified the disbursements which are ultimately for the Defendant’s benefit alone. These disbursements identified are as follows (“disbursements”): i. Payment of RM4,000,000.00 to Rimbun Masyhur; ii. Payment of RM401,872.00 to Twintech Holdings Sdn Bhd; iii. Payment of RM50,013.15 to Messrs Rahayu Rabiha & Associates; 26    iv. Payment of RM38,043.50 to Messrs Chor Pee Anwarul & Co.; v. Payment of RM9,660.00 paid to PPC International Sdn Bhd. [53] The Court is minded that at this juncture, the Defendant has done very little to dispute all of these payments made and the evidences contemporaneous to these payments. These evidences of payments were never put under scrutiny during the cross-examination by the Defendant. In fact, there is very little in the Defendant’s submission on the proofs of payment. All there is, was their allegation that the Plaintiff had not shown the manner in which the quantification of their RM4,499,589.00 came about. [54] However, there is no complex mathematics in the quantification of the Plaintiff’s claim. It is simply a rounded amount of the addition of the above disbursements. The total amount of the above disbursements RM4,499,588.65. The rounded amount would come up to the Plaintiff’s claim. Thus, there is no question of the Plaintiff proving their claim. Particularly when the Defendant had eschewed in toto 27    their burden of proof to disprove the evidences brought by the Plaintiff to prove of all of the disbursements made to the Defendant’s sole benefit. [55] This failure to challenge the evidences during cross-examination should be treated as an acceptance of these evidences. The Defendant cannot now generally claim that the claim was not proven or quantifiable when they themselves opted not to challenge it during the trial. The same sentiment has been uphold in the Federal Court decision in the case of Wong Swee Chin v PP [1981] 1 MLJ 212: “…On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony” (See also Soong Peng Yam & Anor v Bank of Tokyo – Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31, at pages 35 to 36) [56] Applying the above principle in the present case, the proof of disbursements is indeed a crucial part of the case as it substantiates 28    the totality of the Plaintiff’s case. And the Defendant has failed to dispute the same during cross-examination. Thus, this failure amounts to the Defendant’s acceptance to the witness’s testimony on the proof of disbursements. [57] Nonetheless, this Court shall still allude to the disbursements above categorically for the sake of completeness. Payment of RM4,000,000.00 to Rimbun Masyhur [58] As had been testified and confirmed by both PW-2 and even the Defendant’s own witness DW-2, this payment to Rimbun Masyhur is a deposit for the purchase of 70% shares of Twintech Holdings Sdn Bhd (“Twintech”) which is owned by Rimbun Masyhur. At the time the Defendant already owned 30% shares in Twintech. It was also admitted by DW-2 that the purchase was not completed and the deposit was forfeited by Rimbun Masyhur. Furthermore, it was also admitted by DW-2 that the purchase of the shares has nothing to do with the Plaintiff. Thus, the only probable benefactor to the purchase is the Defendant. This payment and sole benefit to the Defendant is 29    proven vide a Voucher dated 15.1.2008. (See page 123 of the CBD). It is apparent that the Voucher has nothing to do with the Plaintiff as only the Defendant’s account number is written on the voucher. Payment of RM401,872.00 to Twintech Holdings Sdn Bhd; [59] PW-2 confirmed that this payment was a refund for advances given to the Defendant by Rimbun Masyhur. The payment voucher dated 15.1.2008 is indeed coherent with PW-2’s testimony. The voucher’s description reads: “Reimbursement of Disbursement paid on 27/12/07” It also states that the payment was for the account of Inai Tropika Sdn Bhd, the Defendant in the present case. (See page 124 of the CBD) 30    [60] Thus, it is compelling to infer that this disbursement has no relations at all with the Plaintiff, and was paid on and/or on behalf of the Defendant or to the benefit of the Defendant. Payment of RM50,013.15 to Messrs Rahayu Rabiha & Associates [61] PW-2 confirmed that this payment is made as part-payment of professional fees and disbursement billed to the Defendant at the time PW-2 was acting as the Defendant’s solicitors. There are numerous contemporaneous documents which prove this disbursement and insofar this Court is concerned, none of these documents were put under scrutiny during the cross-examination by the Defendant. The following are the supporting documents: (a) Paragraph 1 of the Defendant’s solicitor’s letter dated 22.5.2012. (See pages 136 to 137 of CBD). (b) The Defendant’s solicitor’s bills No. 10-1202 (for the July Agreement) and No. 1-1201 (for a tenancy agreement between the Defendant and Twintech) in which both bills 31    were dated 18.1.2008 and addressed only to the Defendant. PW-2 confirmed that these bills are supposed to be paid by the Defendant and not the Plaintiff. This is coherent to the fact that the bills are addressed to the Defendant. (See pages 138 to 139 of the CBD). (c) A voucher dated 15.1.2008 to the amount of RM50,013.50 covering payment for bills No. 10-1202 and No. 10-1201 above. The voucher describes that the payment is also made for the account of Inai Tropika Sdn Bhd, the Defendant. (See page 125 of the CBD). (d) The Defendant’s solicitor’s receipts No. 0068 for bill No. 10- 1202 and No. 0067 for bill No. 10-1201. Both receipts states that the payment was received by the Defendant and not the Plaintiff. Thus, clearly the disbursement is for the benefit of the Defendant and not the Plaintiff. (See pages 140 to 141 of the CBD). 32    Payment of RM38,043.50 to Messrs Chor Pee Anwarul & Co [62] This disbursement has been referred to and confirmed by PW-1 and PW-2 to be the payment for professional fees and disbursement billed to the Defendant regarding the loan documentations between the Defendant (as borrower) and KBIMB (as financier). Similarly, these line of evidences remains unchallenged by the Defendant: (a) Paragraph 2 of the Defendant solicitor’s letter dated 22.5.2012 which reads (see page 137 of the CBD): “RM38,043.50 paid Messrs Chor Pee Anwarul & Co. i) The payment was part payment for the professional fees and disbursement in connection with the loan documentation between Inai Tropika Sdn Bhd as the purchaser and Bank Kerjasama Rakyat Malaysia Berhad as the purchaser’s financier;and ii) Enclosed copies of the bill no.: K126/2007…” 33    (b) Messrs Chor Pee Anwarul & Co’s Bill no. K126/2007 was addressed only to the Defendant. Only the Defendant’s name was written on top of the bill. (See page 142 of the CBD) (c) The voucher to the amount of RM38,043.50 dated 15.1.2008 which is described as “Payment for Loan’s Bill – Final Payment” was made to the Defendant’s account and not the Plaintiff’s. (See page 126 of the CBD). (d) Even more apparent is Messrs Chor Pee Anwarul & Co’s Official Receipt dated 22.1.2008 to the amount of RM38,043.50 which is a receipt to the payment towards bill no K126/2007. It is vividly written in the voucher that it is “For account of: INAI TROPIKA SDN BHD”. [63] Although there is a difference in amount between bill no. K126/2007 (RM85,805.50) and the sum paid for the Defendant’s benefit, this difference has already been explained by PW-2 that bill K126/2007 has been partly paid for earlier and that the sum of RM38,043.50 was 34    the last payment due. The Defendant was also given some discounts to the bill. This explanation is clearly coherent with the fact that the payment voucher dated 15.1.2008 above indeed described the payment as “Final Payment”. [64] The loan documentation is crucial for the Defendant to be able to purchase the properties owned by KBIMB. Thus, this disbursement indeed goes to the benefit of the Defendant. Payment of RM9,660.00 paid to PPC International Sdn Bhd (“PPC”) [65] This payment has been confirmed by PW-2 as payment for professional fees and service tax billed by PPC for the valuation of the properties as required by KBIMB. Again, evidences proving this disbursement had gone unchallenged by the Defendant, even in its submissions: (a) PPC has written a letter dated 29.11.2007 enclosing the Valuation Report and Note of Fee No. PPC/NF/00120/07 to 35    the Defendant’s solicitors for payment. (See pages 158 to 159 of the CBD). (b) The Defendant’s solicitors has written a letter dated 9.1.2008 to PPC enclosing a cheque to the amount of RM340 dated 3.1.2008 as part payment to the Note of Fee No. PPC/NF/00120/07. (See pages 160 to 161 of the CBD). (c) Upon the part-payment above, the remaining unpaid amount is RM9,660.00. Which amount is the exact amount disbursed using the loan, under the instructions dated 18.1.2008. The Defendant’s solicitor’s voucher dated 18.1.2008 to the amount of RM9,660.00 is described as “Payment for Bill No. PPC/NF/00120/07” and was made for the account of the Defendant. (See page 127 of the CBD). (d) It was even admitted by the Defendant’s own witness during the Plaintiff’s cross-examination, DW-2 that this payment is ought to be paid by the Defendant. 36    [66] Thus, again it is apparent that this payment was made on and/or behalf of the Defendant or was made to the benefit of the Defendant. Court’s finding [67] Considering the unchallenged evidences and testimonies forwarded by the Plaintiff and all the numerous uncontested contemporaneous evidence discussed at length above, it is this Court’s considered view that indeed, the Defendant is indebted to pay the remainder purchase price unpaid from the July Agreement to the Plaintiff. COURT’S DECISION AND DIRECTIONS [68] In light of all of the above findings, it is this Court’s decision that the Plaintiff has successfully proven its case while the Defendant have failed to prove any defence against the Plaintiff’s case. [69] This Court is minded that the Plaintiff has conceded on their alternative prayer for a Declaratory Order that the Defendant be 37    made a trustee for the Plaintiff for the 4,500,000 Twintech shares. Thus, this alternative prayer is dismissed. [70] This Court hereby orders the Defendant to pay the Plaintiff the total sum of RM 4,499,589.00. On the issue of costs [71] Having heard the submission from both counsels for the Plaintiff and the Defendant, this Court hereby orders the Defendant to pay the Plaintiff RM20,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 16th day of June, 2015 38    For the Plaintiff - Tetuan Shamiah K.E. Ng & Siva Encik N.Sivagurunathan For the Defendant - Tetuan Harjit Sandhu, Wan & Associates Encik Harjit Singh Sandhu Cik Wan Nurliyana Abdul Rahman

Tika 2.6.0

22-758-2009

PLAINTIF HSBC BANK MALAYSIA BERHAD DEFENDAN 1. JEJAK MAJU RESOURCES SDN BHD 2. VIJAYALATHA A/P VELUPILLAI 3. PLUSTRANS RESOURCES SDN BHD 4. TENGKU SHAIFFULIAZAN BIN TENGKU ZAINAL ABIDIN 5. MICROVEST ENGINEERING SDN BHD 6. LIEW TENG SHUEN

12/06/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5830766d-a523-4b75-9eda-155950fab66d&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : MT5-22-758-2009 BETWEEN HSBC BANK MALAYSIA BERHAD .... PLAINTIFF AND 1. JEJAK MAJU RESOURCES SDN BHD 2. VIJAYALATHA A/P VELUPILLAI 3. PLUSTRANS RESOURCES SDN BHD 4. TENGKU SHAIFFULIAZAN BIN .... DEFENDANTS TENGKU ZAINAL ABIDIN 5. MICROVEST ENGINEERING SDN BHD 6. LIEW TENG SHUEN GROUNDS OF JUDGMENT (After full trial) [1] On the surface, this case is fairly complex with the involvement with many parties. To fully understand the nature of this case and the underlying transaction arising from the factual background and chronology of events surrounding the case must be set out first. They are as follows: a) The Plaintiff is a banker running its business under the name of HSBC Bank Malaysia Berhad. b) Jejak Maju Resources Sdn. Bhd (JM), a RM2.00 company (the first defendant) is a company incorporated in Malaysia under the Companies Act 1953. Plustrans Resources Sdn Bhd (the third defendant, “Plustrans”) and Microvest Engineering Sdn Bhd (the fifth defendant, “Microvest”) are companies incorporated in Malaysia having their registered offices at 5A-1, 1st Floor, Jalan Memanda 7, Ampang, 03-32, 3rd Floor, PKNS Complex, Shah Alam and No.117, Block A Damansara Intan No.1, Jalan SS 20/27, Petaling Jaya respectively. c) The second defendant (Vijayalatha a/p Velupillai) was the director of the first defendant (JM), while the fourth defendant (Tengku Shaiffuliazan bin Tengku Zainal Abidin) was the director of the third defendant (Plustrans) and the sixth defendant (Liew Teng Shuen) is the director of the fifth defendant (Microvest). d) The second defendant (Vijaya) is also a lawyer running her own legal practice under the name of Messrs. Vellupillai & Associates. e) A Brazilian company by the name of Target Trading (Target), a valued customer to HSBC Bank Brasil S.A Banco Multiplo (HSBC Brazil) had intended to purchase “high speed diesel” from Petronas Dagangan Berhad. However, Brazil HSBC was informed that this can only be carried out through a local supply agent. f) HSBC Brazil then contacted the Plaintiff to finance the purchase of the diesel by JM, the local supply agent. Thereafter, JM was granted a banking facility by the Plaintiff on the basis of a standby letter of credit provided to the Plaintiff by HSBC Brazil. g) Subsequently, a Letter of Offer (LO) dated 29.4.2008 was issued by the Plaintiff to JM agreeing to provide banking facilities up to USD 5.4 million (the funds) to finance the purchase of the diesel. An instruction was received from HSBC Brazil, made on behalf of Target instructing the Plaintiff to transfer the sum of USD 4.55 million to a Petronas account with Malayan Banking Bhd (MBB). On the same day, the Plaintiff had also received an insistent request from JM to transfer the same amount into the MBB account. Later, the Plaintiff found out that the account number belongs to Plustrans, who, Vijaya claimed was a Petronas dealer. Upon request by Vijaya, the Plaintiff had also on 2.5.2008 disbursed a sum of USD 0.75 million to the Vijaya’s legal firm purportedly for shipping expenses. JM had defaulted payment of the banking facility granted earlier. h) The Plaintiff, subsequently discovered inter alia the following: - there was actually no transaction between the JM and Petronas. - documents relating to the diesel’s sale and purchase transactions were found to be forged documents. - Plustrans had paid a sum of USD 4 million to Microvest. - Plustrans had also paid RM1 million each to the fourth defendant and a person by the name of Mohd. Fuad. - a sum of USD 3 million was paid by Microvest to the sixth defendant (Liew). - the entire transaction in connection with the disbursement of USD 5.4 million by the plaintiff to the JM and thereafter to the rest of the defendants was a fraudulent transaction. i) On 18.6.2008, Vijaya had lodged a police report against, inter alia Microvest and Liew, accusing that they were conspiring with Plustrans to defraud her in the sale and purchase dealings for the diesel. j) On 26.6.2008, the Plaintiff lodged a police report alleging that they have been defrauded by a syndicate consisting of the above named defendants for the sum of USD 5.4 million. k) Following a police investigation, it was found that there are reasonable grounds to suspect an offence under subsection 4(1) of the Anti-Money Laundering and Anti –Terrorism Act (AMLATFA) was committed, and the authority in exercising their powers under sections 44(1) and 50(1) of the AMLATFA had seized and frozen all of the defendants’ accounts. The amount seized is approximately USD 3.327 million (the monies). Thereafter, the fourth defendant (Tengku) and Mohd Fuad were charged for offence under section 420 of the Penal Code, which was to be read together with section 34 of the Penal Code. The fourth defendant and Mohd Fuad were also charged for five other offences each under subsection 4(1)(a) of the AMLATFA. Meanwhile Liew was also charged at the Malacca Sessions Court for an offence under subsection 4(1)(a) of the AMLATFA. [2] It is to be noted that the Plaintiff had obtained a Mareva Injunction to restrain all the Defendants from dealing with the funds. [3] In this present action which was filed on 21.5.2009 by the Plaintiff, the Plaintiff is claiming damages for the sum of USD 5.4 million from all of the Defendants for conspiracy to defraud. To put it simply, what the Plaintiff is claiming is basically damages against all the Defendants for defrauding it in granting banking facilities for the underlying transaction of the sale and purchase of diesel. [4] At the trial, the Plaintiff produced twelve (12) witnesses, while Microvest and Liew had called eight (8) witnesses to refute the Plaintiff’s claim and to prove their counter claim for inter alia damages for loss of reputation. [5] Now, coming back to the Plaintiff’s claim, the link between the Plaintiff and the Defendants with regard to this fraud varies but can be categorized as the fraudsters and the co-conspirators of the alleged fraud who have received the illegitimate fruits of the fraud. The nexuses are as follows: 1st Nexus: The Main Fraudster [6] The main fraudsters are JM, Vijaya and Plustrans. These are the parties involved in the fraud to unlawfully deceive the Plaintiff into granting banking facilities to supposedly finance the sale and purchase of the supply of diesel with Petronas (“Underlying Transaction”). [7] Basically, the alleged fraud is that JM and Vijaya have fraudulently misrepresented the existence of the Underlying Transaction (which remains undisputed by the parties) of a supposed deal to supply diesel to Target from Petronas. This facade of Underlying Transaction remains undisputed and no defendants have submitted that this underlying transaction have ever been performed at any material time. Target is represented by one Antonio Gantus Filho (“Antonio”) as its agent. At the earliest juncture, this Court would already take judicial notice that this Antonio is a felon who has already been tried and convicted in Brazil for the crime of Financial Fraud. (See Sentence by the Brazilian Court at Tab 41 of the PCBD). [8] It is verily important that this Court understands the case of Microvest and Liew, where both the Defendants in this case are disputing the existence of such fraudulent misrepresentation of a later occurrence involving Plustrans mainly on the representations made on Plustrans’ account number by Vijaya and not the Underlying Transaction itself. It is undisputed that the Underlying Transaction has never been performed at all material times. It is undisputed that the facilities granted by the Plaintiff was never utilised to finance this Underlying Transaction. It was submitted by both of the Parties that the facilities granted was not utilised for the purposes of the Underlying Transaction. [9] It is utterly important to note that the Plaintiff has already obtained Judgments in Default against JM and Vijaya. [10] Even though this Court had earlier narrated the detailed background of the case, but to have a better understanding of the whole transaction, the pertinent facts relevant to the transaction is revisited here. Target, a valued customer of HSBC Brazil intended to perform the Underlying Transaction. Target then informed HSBC Brazil that it was Petronas’s requirement that the Underlying Transaction must be conducted vide a local party. This is evident in HSBC Brazil’s representative’s email to the Plaintiff dated 1.4.2008. (See tab 7 of Plaintiff’s Core Bundle of Documents “PCBD”). JM was then appointed to play the role of this local party involved to set the alleged Underlying Transaction in motion. (See HSBC Brazil’s email at tab 8 of the PCBD). The Plaintiff then issued the LO agreeing to provide banking facilities up to USD5.4 million to finance the Underlying Transaction. HSBC Brazil then issued a Standby Letter of Credit (“SBLC”) to secure the facility by the Plaintiff to JM. (See DCBD tab 10). [11] The salient terms of the LO are as follows: (i) It is a condition precedent that USD5.4 million is to be ultimately paid to a Petronas account in Maybank. (see tab 9, page 27 of PCBD) (ii) The conditions precedent are for the sole benefit of the Bank, who may waive their compliance without prejudice to its rights herein or in any Security Document. (see tab 9, page 30 of PCBD) (iii) The Plaintiff may in its absolute discretion vary or add to the terms of the LO. (see tab 9, page 31 of PCBD) [12] It is also Target’s instruction that the facilities should be disbursed on 30.4.2008. 2nd Nexus: Co-conspirators allegedly receiving monies from the fraud [13] The Plaintiff has netted the 4th to the 6th Defendants on the allegation that they have thus far received the proceeds from the fraud. It is the Plaintiff’s case that these defendants, namely Tengku, Microvest and Liew are co-conspirators who have been complicit in the “Layering” of the proceeds from the fraudulent Underlying Transaction. [14] HSBC Brazil vide its instruction dated 30.4.2008, only a day after the LO was issued, instructed on behalf of Target that the Plaintiff should disburse the monies into Petronas’s account in Maybank. However, the account number was not provided or stipulated within this instruction. It merely reads: “ACCORDING TO THE ARRANGEMENTS…WE RECEIVED TARGET’S AUHTORIZATION FOR THE CREDIT OF USD 4,550,000.00 TO PETRONAS’S ACCOUNT IN MAYBANK…” [15] Vijaya then at about 4.15 pm, 15 minutes before close of business issued an instruction on behalf of JM to the Plaintiff to credit the USD4.55 million to an unnamed account number. It is peculiar that despite the obvious and staunch stipulation of the monies to be credited into Petronas’s account, Vijaya never see it appropriate to inform that the account number was not Petronas’s. In fact, Vijaya remained completely silent in her instruction as to the identity of the holder of that account number (which is Plustrans’s account). [16] It is the Plaintiff’s case that the Plaintiff’s Commercial Banking Manager, Chandra Segaran a/l Singaravely (“Chandra”) had been cornered and threatened by Vijaya and the agents of Target to oblige to Vijaya’s instruction to credit the monies into Plustrans’s account namely Plustrans’s Foreign Currency Account (“FCA”) in Maybank. Furthermore, Chandra was also allegedly informed that Plustrans was a dealer with Petronas itself. This Court will delve into the details later in this Judgment. [17] From this point onwards, it is not a disputed fact that the Underlying Transaction have never taken place and indeed the facilities credited into Plustrans were never utilised to purchase anything from Petronas. [18] Bearing in mind that the facilities were never used to set the Underlying Transaction in motion, the Plaintiff sought out to trace the movement of monies from Plustrans’s FCA subsequent to the crediting of the facilities. It was found that Plustrans’s FCA was totally empty and had a nil balance before the facilities were credited into the account on 30.4.2008. The account was also very recently opened on 20.4.2008, just 10 days before the facilities were credited into it. It is safe to infer that the monies in Plustrans’s FCA is undoubtedly only the monies credited from the facilities granted in view of LO granted. [19] Just 5 days after the crediting of the monies, Plustrans transferred almost all of the monies from the facilities granted (USD4 million) to Microvest’s FCA (which was also recently opened on 12.3.2008). Microvest’s FCA also had a nil balance as at 30.4.2008. In fact Microvest’s account was also empty until Plustrans transferred the monies from the facilities granted on 5.5.2008. (See tab 6, page 22 of PCBD). [20] By 20.5.2008, Microvest have transferred almost all of the monies transferred by Plustrans (which was the monies from the facilities granted as it could not be any other money since Plustrans’s FCA was empty before the facilities were credited to Plustrans) (approximately RM9.7 million) as just 2 days after that, Microvest transferred RM 9.7 million to Liew’s account. [21] It is clear that the state of accounts above was not disputed. It is not disputed that the monies in the account was purely the monies which were granted from the LO in view of the Underlying Transaction. There is no case or question of mixed fund in the present case. The monies which were transferred in and out of the FCAs of both Plustrans and Microvest is without a doubt the facilities granted under the LO. The flow is simple. Plustrans’s FCA was empty until the facilities were credited into the account (Hence all the monies in Plustrans’s FCA is monies from the facilities). Microvest’s FCA was empty until Plustrans transferred the monies granted under the LO from their FCA to Microvest’s FCA. (Hence, all the monies in Microvest’s FCA is monies from the facilities). There is no suspicion or speculation here. These are hard facts from the admission and evidence brought before this Court. [22] Albeit there are numerous other movement in the funds involving the monies from the facilities, the above movements in funds were the main basis where the Plaintiff implicates Microvest and Liew in the present case. Thus, the Court would not delve further into these other movements. [23] In the simplest manner possible, the most pivotal issue to be determined in the present case with respect to Microvest and Liew is whether Microvest and Liew can be implicated to be co-conspirators to the fraudulent act of JM, Vijaya and Plustrans. [24] This pivotal issue shall be dealt with by this Court in five prongs: (i) Whether there was a fraudulent misrepresentation stemming from the Underlying Transaction? (ii) Whether there was a legitimate diesel supply transaction to justify the transfer of USD4 million (from the facilities granted under the LO) from Plustrans’s FCA to Microvest? (iii) Whether there was legitimate reason for Microvest to transfer of USD3 million (from the facilities granted under the LO) from Microvest’s FCA to Liew? (iv) Whether Microvest can be implicated as co-conspirators to the fraudulent act? (v) Whether Liew can be implicated as co-conspirators to the fraudulent act? Issue (i): Whether there was a fraudulent misrepresentation stemming from the Underlying Transaction? [25] It is only appropriate for this Court to highlight that in the course of this trial, the Parties have taken two tangents of arguments, i.e first, misrepresentation of Plustrans’s FCA and second, misrepresentation of the Underlying Transaction. 1st Tangent: Misrepresentation of Plustrans’s FCA [26] The first tangent is the alleged misrepresentation of Vijaya in her instruction dated 30.4.2008 in which she instructed the facilities under the LO for the Underlying Transaction to be credited into Plustrans’s account rather than a Petronas account in Maybank. Now, a large majority of the Microvest’s and Liew’s (“Defendants”) defence hinges on the argument that there was never a misrepresentation of the Plustrans account and that it was merely the Plaintiff’s own mistake and/or negligence in misappropriating the facilities into Plustrans’s account without due diligence. 2nd Tangent: Misrepresentation of the Underlying Transaction [27] The second tangent is the alleged misrepresentation on the Underlying Transaction as whole. And this Court is more inclined to agree on this second tangent. The misrepresentation does not just begun upon the misrepresentation of the identity of Plustrans’s account. If so the Defendants vehemently argue on the first tangent, they are not holistically addressing the fraudulent misrepresentation. The representation or misrepresentation of Plustrans’s account does not negate the misrepresentation by JM and Vijaya on the Underlying Transaction. The Plaintiff granted the banking facilities upon representation of this Underlying Transaction of a diesel supply deal with Petronas which indisputably was never set in motion. The Underlying Transaction never took place. [28] With this regard, even the Defendants’ submissions seem to admit the fact that there was a misrepresentation on the Underlying Transaction. The Defendants’ submissions read: “Although the facility was later not used by Jejak Maju to finance the said purchase of diesel from Petronas, it does not mean that the money was unlawful in its own nature” (See Defendants’ Submissions para 5.72) [29] The moment the facility was not utilised for the Underlying Transaction, there arise a misrepresentation of the existence of such Underlying Transaction and this is the core basis of the fraudulent misrepresentation. If the Defendants are even willing to admit to this, then there is very little for the Defendants to ever argue that there was no misrepresentation merely on the tangent of the misrepresentation of Plustrans FCA. [30] Hence, from the outset, the whole length of discourse over the representation or misrepresentation of the Plustrans FCA is innately futile to defeat the implication of fraudulent misrepresentation of the Underlying Transaction. Nevertheless, for the sake of completeness this Court shall still delve with the submissions of the Defendants regarding the misrepresentation of Plustrans’s FCA. [31] It is reiterated that the Defendants’ contention on the Underlying Transaction is very minimal and ultimately does not lay a dent to the fact that the Underlying Transaction is indeed a sham. [32] JM has held out vide the LO that the payment shall ultimately be made to Petronas following the supposed Underlying Transaction. This was entirely not the case. The payment never reached Petronas and there was never a deal to purchase Diesel from Petronas. The fraud does not just end there. [33] PWS6, Ahmad Nabil Bin Azizan (“Nabil”) is Petronas Dagangan Berhad’s (“PDB”) General Counsel. He had further testified that JM: (i) Had never at any point in time made any dealings with PDB (ii) Is not an entity registered with PDB or Petco (iii) Notice of Readiness dated 30.5.2008 (“Notice of Readiness”) and the confirmation of cargo are forged documents. (see page 188 of Bundle C; Questions 4 to 11 of PWS6) (iv) JM’s letter dated 9.6.2008 regarding the dealing with PDB was a false statement. PDB had never have any dealings whatsoever with JM [34] Nabil have written to the Plaintiff confirming that the Notice of Readiness and the allegation of dealings in JM’s letter was false and are forged documents in his letter dated 17.9.2008 (see page 218 of Bundle C). [35] JM held out to represent a forged document supposedly proving that there was progress to the Underlying Transaction which was entirely untrue. The Notice of Readiness does name the consignee as Target in Brazil and the consignor being PDB with PDB’s letterhead. This is entirely forged and was misrepresented to be true by JM. PDB is not even a company which deals with international trade or sales which adds to JM’s misrepresentation. [36] JM further misrepresented the falseness of the dealings with PDB in its letter dated 9.6.2008 in that PDB in reality has never ever has any dealings with JM. In fact, JM was never at any point in time a registered entity with PDB. [37] Furthermore, JM has falsely held out to be a business part with PDB in its Corporate Profile. This representation is entirely untrue and blatantly false. The Corporate Profile reads: “Some of our well known business partners includes PETRONAS…” PARTIAL LIST OF JMRSB ONGOING PROJECTS 1) Supply of 240,000 tonnes FOB Petronas High Speed Diesel to M&G Technologies Sdn Bhd 2) Supply of 240,000 tonnes on FOB of Petronas D2 to Ceria Bersama International Sdn Bhd 3) Supply of 60,000 tonnes on FOB of Petronas D2 to PT Alam Pasifik Sdn Bhd” [38] All of which were false misrepresentations. PDB has never done any dealings with JM as was held out by JM in its Corporate Profile above. And the Defendants have done nothing at all to dispute this fact. Non-reliance on forged documents is irrelevant [39] The Defendants’ general contention on the forged documents was that it is not relied upon by the Plaintiff in granting the facility to JM. However, it must be noted that the Defendants are clearly missing the point of these forged documents. [40] The forged documents are not relevant to prove reliance in the Plaintiff’s case. These documents are only relevant to prove that whatever representations (on the Underlying Transaction) made by JM and Vijaya in obtaining the facility were false misrepresentations. [41] This line of contention does nothing to defeat the Plaintiff’s case. The forged documents serve clear evidence of a false statement which was represented to be true. They are not evidences to prove reliance. They are evidences to prove that the facts relied upon were false and were represented to be true by JM and Vijaya. [42] This contention of the Defendants does not hold water to negate the false misrepresentation made by JM and Vijaya regarding the Underlying Transaction. Forged documents do not necessarily need to implicate the Defendants [43] Now, it must be understood, from the pivotal issue elaborated earlier, that the implication against the Defendants is dependent upon on the legitimacy of business that Microvest and Liew allegedly have in justifying the movement of the monies from the facility into their account. At no point in time was it material that the Plaintiff needs to use the forged documents as proof to implicate the Defendants. The forged documents have steadfastly proven that the facts represented by JM and Vijaya were false and untrue. That is the extent necessary for the Plaintiff to use the forged documents as evidence. The Defendants have never disputed that these forged documents to be true. The Defendants never attempted to dispute the fraudulent misrepresentation on the Underlying Transaction which is proven to be untrue vide the forged documents. [44] It is very shocking that the Defendants candidly admit that there were forged documents involved and attempts to dispute the existence of a fraudulent misrepresentation. The mere definition of forged document is a false representation of false facts to be true. The documents are forged to falsely represent a false fact to be true. [45] At this juncture, it is obvious and undisputed that there was indeed a false misrepresentation of fact (the Underlying Transaction) by JM and Vijaya to which the Plaintiff had relied upon in granting the facility to JM. It is therefore this Court’s view that even from this initial tangent, there is an overwhelming and irrefutable proof that indeed there was a fraudulent misrepresentation by JM and Vijaya. [46] This Court is guided by the case of the classic case of Derry v Peek (1889) 14 App. Cas. 337 and also Halsbury’s Law of Malaysia, Vol 5 [2000]. Generally, the elements to prove a case of fraudulent misrepresentation are: (i) The existence of a false statement of fact and the Defendant is well aware of its falseness It is vividly clear that there was a false statement of fact (Underlying Transaction of the diesel supply deal with Petronas) which is a total sham. This falseness is very well within the awareness and knowledge of JM and Vijaya who had produced false forged documents asserting its business relations with PDB. (ii) The representation was made with the intention that it will be acted upon by the Plaintiff Indeed it is irrefutable that JM and Vijaya have misrepresented the false Underlying Transaction with the intention it would persuade the Plaintiff to grant JM the banking facility (iii) The Plaintiff in fact acted on the false statement Without a single iota of doubt, the LO was granted by the Plaintiff in view of this Underlying Transaction of diesel supply deal with Petronas. (iv) The Plaintiff suffered damages resulting from the said reliance It is undisputed that the banking facility granted under the LO was never paid for and was never refunded by any party and the Plaintiff indeed suffered damages from their reliance on JM and Vijaya’s false misrepresentations. [47] Clearly, all the elements requisite have been proven. The Judgment in Default against Vijaya and JM is an “incontestable proof of fraud” [48] The Federal Court recently has decided that a plaintiff need not prove an allegation of fraud against defendants who the plaintiff already has a JID against in a separate trial involving other defendants who opted to enter defence. Jeffry Tan FCJ decided in the case of Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ at paragraph 11 of his judgment that the Appellant in that case (involving the 5th and 6th Respondents) need not prove the fraud of the 1st to 4th Respondents who the Plaintiff was already granted JID against: “Given that alleged fraud passed wholly unanswered by the first to fourth respondents, the trial court at 43AR was wholly warranted to hold that with default judgment against the first to fourth respondents, fraud by them needed not to be proved by the appellants…With respect the judgment was the judicial decree that fraud by the first to fourth respondents had been made out…When judgment was entered against the first to fourth respondents, all allegations of fraud which gave rise to the cause of action merged in the judgment…Until set aside, the default judgment was the incontestable proof of fraud by the first to fourth respondents”(emphasis added) [49] Thus, by law, actually the Defendants in the present case are in no position to dispute the existence of fraud by JM and Vijaya. This Court is bound to follow this precedent from the Federal Court and from this juncture alone, there is no room at all for the Defendants to dispute the existence of fraud by JM and Vijaya. [50] Nevertheless, as discussed earlier, notwithstanding the absence of the Defendants’ standing to dispute the fraud by JM and Vijaya, it is blatantly clear that indeed there was a fraudulent misrepresentation of the Underlying Transaction. [51] The Defendants apparently have no reply to this contention in their submissions. Misrepresentation of the Plustrans’s FCA [52] This Court reiterates that the whole discourse on the representation of the Plustrans’s FCA is futile and does not at all put a dent to the finding of fraudulent misrepresentation against JM and Vijaya. This tranche of argument is totally irrelevant in supporting or disputing the fraudulent misrepresentation of the Underlying Transaction. The crediting of Plustrans FCA is merely the vessel in which JM and Vijaya have channelled the proceeds of the fraud into. [53] Thus, this Court does not intend to delve too deeply on this contention. It is verily more relevant for the Defendants to prove their legitimate reasons to participate in the proceeds of the fraud which was credited into Plustrans’s FCA. Negligence is not a defence to the fraud [54] In attempting to negate the fraud by JM and Vijaya, the Defendants contends that instead of an act motivated by the misrepresentation, the bank’s act in crediting the facility into Plustrans’s FCA resulted from the bank’s own negligence. [55] It is the Defendants’ line of argument that there was never a misrepresentation of Plustrans’s FCA and that it was known to Chandra that the account was Plustrans’s FCA before the Plaintiff decided to oblige to Vijaya’s instruction. [56] Nevertheless, even assuming the act was negligent (which this Court disagrees) the Court is not about to become the instrument of fraud. It is incomprehensible that the Defendants ought to urge the Court to legitimise the fraudulent misrepresentation of the Underlying Transaction merely on the basis that the Plaintiff was negligent in crediting the facilities in Plustrans’s account (which in the first place, is illegitimately conceived). Notwithstanding any sort of negligence or contributory negligence, it is beyond the Court’s primary duty to uphold justice that the Court would afford legitimacy of a fraudulent act, merely because of the fallible ground that the Plaintiff was in a sense, negligible in believing the fraudulent misrepresentation of Vijaya and JM. This is grossly inappropriate. Such contention is inconceivable to any farthest stretch of the legal imagination. The Court will never be a bridge or instrument to enable the operation of any fraud or deceit. And this is exactly what the Defendants sought to urge the Court to become. The facilities were from the beginning were ill-conceived from the granting of the LO itself. Anything else which entailed the ill-conceived facility is the ensuing mechanics of the fraud. However negligent the Plaintiff might be at the time the monies were credited into Plustrans’s FCA, the whole ordeal with regards to the Underlying Transaction was an illegitimate sham. It would be ridiculous to suggest that a Court of law should allow and legitimise the workings of a fraud merely because the victim of such fraud was negligent in his conduct. The negligence does not change the fact that the Plaintiff was a victim of a fraud. Thus, the Court shall staunchly remain to treat the fraudster as a fraudster, and the victim as a victim. [57] The Plaintiff has referred this Court to valuable guidance to the decision in the case of Bumiputra Commerce Bank Bhd v Siti Fatimah Mohd Zain [2011] 2 CLJ 545. The Court has correctly decided that: “With the evidence that was presented and even allowing for all the possible inferences to be made in her favour, it was my assessment that, at the very least, she knew of the mistake by the bank in making available the overdraft facility. Of course at the worst, she was complicit to the illicit plan to defraud the bank. In either case, she was certainly not acting in good faith. In fact, the evidence, as I have alluded to thus far, shows that, if not dishonesty, there was certainly an element of bad faith on her part. Her claims of fault on the part of the bank must be seen in this light. In any event, a consideration of fault or even negligence or carelessness on the part of the plaintiff bank, as the law suggests, is irrelevant. It was beyond doubt that the defendant had been enriched at the expense of the plaintiff bank. In the circumstances, it would be unconscionable and inequitable and therefore unjust to deny restitution to the plaintiff bank.” [58] As succinctly put by the Court in the above case, it would be unconscionable and inequitable as well as unjust to allow the enrichment of the Defendants from this fraud merely because the Plaintiff was negligent (which this Court also disagrees). [59] The Common Law jurisdiction also shares the same sentiment in the English Court of Appeal’s decision in the case of Standard Chartered Bank v Pakistan National Shipping Corporation and Others (No 4) [2001] QB 167: “But also, and importantly, it has always been the law that a defendant who has been found liable in deceit cannot establish a defence based upon the contributory negligence of the plaintiff” [60] Thus, it is this Court’s considered view that, from the outset, the Defendants’ defence of negligence shall fail. Was Chandra negligent in his conduct? [61] For the sake of completeness, this Court shall briefly allude to the submissions and evidences put forth regarding this contention. [62] The Defendants’ contention is that Chandra knew of the identity of the holder of the account which Vijaya instructed the Plaintiff to credit the facility into (which was Plustrans’s FCA). And upon that knowledge, the Defendants alleged that it was the Plaintiff’s own negligence that led to the Plaintiff’s act of crediting the facility in Plustrans’s FCA. [63] In contrast, the Plaintiff’s contention regarding Chandra’s conduct was that there were numerous factors and considerations that had led to the crediting of the facility even with knowledge that the account was Plustrans’s and not Petronas’s. [64] This Court is minded here at this juncture that the misrepresentation regarding Plustrans is not so much on the identity of the holder of the account number furnished by Vijaya in her instruction but rather the misrepresentation of the utility of Plustrans as the recipient of the facility rather than Petronas. Chandra has testified in his Witness Statement that he indeed, immediately called Maybank to ascertain the identity of the holder of the account number. Chandra was informed by Maybank that the holder of the account was Plustrans. Out of Chandran’s own diligence, he conducted a SSM Search on the same day and found that Plustrans indeed was a company which dealt with the distribution of Petroleum Product. Now, the misrepresentation here was that when queried by Chandra, Vijaya have assured that Plustrans is a dealer with Petronas and that ultimately and eventually that the sums from the facility will duly be transferred to Petronas. It is also part of Chandra’s testimony that shortly after the telephone conversation with Vijaya, Antonio had telephoned him and pressured him into disbursing the facility on the same day. Both Vijaya and Antonio have threatened that in case the facility was not disbursed on that day, the deal would be adversely affected and the Bank will be held responsible. [65] Basically, Chandra’s decision to credit the facility within the strict timeline set by Target was a well calculated decision given the following circumstances: (i) Vijaya had deceived Chandra that Plustrans was a dealer with Petronas and assured that the facility would ultimately be paid and transferred to Petronas; (ii) Chandra received confirmation from Maybank that Plustrans were dealers in Petroleum; (iii) Chandra conducted a SSM search which reveals that Plustrans is indeed involved in the distribution of petroleum products; (iv) Antonio as agent and representative of Target had instructed the Plaintiff to always follow the instructions by JM; and (v) Both Vijaya and Antonio have pressured and threatened the Chandra to comply with their instructions. Whether there was a real and legitimate threat or pressure against Chandra? [66] The Defendants’ contention regarding this issue was that the Plaintiff’s position is secure enough from the LO that the Plaintiff was never put to any risk liability should the dealing fall through. The Defendants submit that Viijaya and Target would never be in the position to sue the Plaintiff as their instructions (to credit the facility into the Plustrans FCA rather than a Petronas account) have contradicted the conditions precedent within the LO and thus, would already warrant the Plaintiff the right to recall the facilities under the LO which reads: “The Facilities are subject always to the Bank’s customary overriding right of suspension, withdrawal and repayment on demand. Other terms herein also apply which may allow the Bank to cease providing the Facilities to you.” [67] However, the Defendants should not selectively apply the LO without the full effect of all other terms within the LO. Equally so, the LO stipulates that the Plaintiff has the absolute discretion to waive the compliance with any of the conditions precedent. Thus, it is the Plaintiff’s case that merely accommodating to the mandate of their own customer who is a party to the LO, even contradicting the conditions precedent will not amount to a breach of the LO. Therefore, Vijaya’s and Antonio’s instructions do not tantamount to a breach of the LO. The LO reads: “The conditions precedent are for the sole benefit of the Bank, who may waive their compliance without prejudice to its rights herein or in any Security Document. [68] Therefore, there would be a legitimate pressure or threat faced by Chandra when he was persistently urged by Vijaya and Antonio to credit the facility into Plustrans’s FCA. The instruction and the waiver of the condition precedent is well within the boundaries of the LO and the Plaintiff bank would definitely run the risk of responsibility and liability if it fails to perform within the lines of the LO to set the Underlying Transaction in motion. Chandra was in a bind to oblige and Chandra was given numerous representations and assurances by Vijaya that the facility would ultimately be paid to Petronas. Whether Chandra was justified to abide by Antonio’s instruction? [69] The Defendants also contend that there was no legal reason for Chandra to have followed the instruction of Antonio or Vijaya as another condition precedent within the LO was that the payment of the facility must be instructed by JM and HSBC Brazil. [70] Firstly, again, the Plaintiff has the absolute discretion to waive any of the conditions precedent. The Plaintiff may opt to waive that condition without any questions asked. [71] Secondly, from the line of correspondences regarding the Underlying Transaction, it is apparent that Target is the core key to the deal and that even HSBC Brazil was working upon the instruction of Target. Target is so essential to the deal that they have furnished the security for HSBC Brazil to issue the SBLC for the facility to be granted. [72] In fact the SWIFT message by HSBC Brazil dated 29.4.2008 even admitted that they were working under the instruction and authorisation of Target. The message reads: “…WE ARE HEREBY INFORMING THAT WE RECEIVED TARGET’S AUTHORIZATION FOR THE CREDIT OF USD 4,550,000.00…” [73] From the conduct of the parties in the Underlying Transaction, it is verily apparent that Target was considered to be the authority in the dealing. In fact Target was so authoritative that HSBC Brazil took instructions and authorisations from Target. [74] Thus, on the two foregoing grounds, this Court is of the view that it is justifiable that Chandra would consider Antonio’s persistent instruction leading up to the crediting of the facility into Plustrans. [75] This Court finds guidance in the Federal Court’s decision in Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2006] 3 CLJ 1 referred to by the Plaintiff which held: “Further, a bank is supposed to treat the customer’s mandate at its face value, save in extreme cases. A bank is not obliged to question any transaction which is in accordance with the customer’s mandate, unless there are grounds for believing that these was a misuse of authority for the purpose of committing a fraud.” [76] Chandra had no reason to suspect fraud and had acted in good faith in ensuring that the deal did not fall through. He was instructed by a relevant party, in fact an authoritative party in the dealings and was even assured that the facility would ultimately be paid to Petronas as per the LO by a party of the LO. [77] For the same reason this Court is inclined to agree with the Plaintiff that it would be inappropriate for this Court to approach this issue with the benefit of hindsight. The Plaintiff referred to Justice Megarry’s observation in Duchess of Argyll v Beuselinck [1072] 2 Lloyd’s Rep 172: “In this world there are few things that could not have been better done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence”(emphasis added) [78] Therefore, it is this Court’s considered view that Chandra had not acted negligently considering the circumstances revolving the issue at the time. It is also this Court’s considered view that indeed, even in this tangent on misrepresentation regarding Plustrans, there was indeed a fraudulent misrepresentation. Issue (ii): Whether There Was Legitimate Diesel Supply Transaction To Justify The Transfer Of USD4 Million (From The Facilities Granted Under The LO) From Plustrans’s FCA To Microvest? Issue (iv): Whether Microvest can be implicated to be co-conspirators to the fraudulent act? Issue (ii) and (iv) shall be dealt together. [79] It is reiterated that the Court has already found that there was indeed fraud which led to the granting of facility and crediting of the same facility into Plustrans’s FCA. [80] Now, without any doubt and in fact it was undisputed that the monies which were transacted to the defendants were isolated transactions involving the monies exclusively from the facility granted under the LO. The monies in Microvest’s FCA was exclusively the monies from the facility transacted from Plustrans FCA which also only contains only the monies credited from the LO. [81] It is without doubt that Microvest and Liew had participated in the proceeds of the fraud brought forth by Vijaya and JM. If and unless the Defendants could not justify their participation in the monies (ie Microvest’s legitimate business with Plustrans and Liew’s legitimate business with Microvest) then the Court rightfully ought to infer that the Defendants indeed were complicit and are co-conspirators to the fraud. The Court may decide based on inferences without having to rely on direct evidences [82] Preliminarily, this Court intends to address the Defendants’ contention on the lack of direct evidences to implicate the Defendants to the fraud and that the Court ought not to decide on the conspiracy to the fraud based on suspicion or conjectures. The Defendants have submitted numerous authorities to support this contention. (See: i.Diljit Kaur a/p Puran Singh v Majlis Peguam Malaysia [2015] 7 MLJ 695, ii. Satis Chandra Chatterji v Satish Kantha AIR 1923 PC 73,iii.ALN Narayanan Chettyar & Anor v Official Assignee High Court Rangoon AIR 1941 PC 93,iv.Hansraj Gupta & Ors v Dehra Dun Mussoorie Electric Tramway Co Ltd) [83] Now, this Court is minded of the above legal position. Indeed a decision on fraud should not be based on mere suspicion and conjecture. [84] However, what this Court does not agree with is the contention that the mere lack of direct evidence or documents would automatically denote an allegation and/or a finding of fraud merely based on mere suspicion or conjecture. [85] This is not the position of law advocated in the above authorities. In fact, there is no law that stipulates that a finding of fraud without direct evidences is a finding based on mere suspicion or conjecture. This is entirely incorrect. [86] The Plaintiff, instead have given valuable guidance to this Court with regards to the analysis of an allegation of fraud in absence of direct evidences. [87] Firstly on the same authority referred by the Defendants, the Plaintiff has revealed the actual decidendi of the Privy Council in Satis Chandra’s case. It seems that the Defendants have intentionally omitted the full decision of the Privy Council when alluding to the case. Such reckless elaboration on the decision is utterly misleading. The Privy Council actually held: “Charges of fraud and collusion…must, no doubt, be proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely found against him. If this were not so, many a clever and dexterous knave would escaped”(emphasis added) [88] It is apparent from the above that it is indeed within the Court’s authority to make a finding of fraud without any direct evidence so long as it is an inference legitimately drawn based on the facts of the case. [89] The Plaintiff’s contention is further supported by the Court of Appeal’s decision in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & Other appeals [1995] 2 MLJ 493. Gopal Sri Ram JCA (as he then was) had held: “Conspiracy is a tort that is not always capable of proof by direct evidence. Like so many other facts, an agreement to do an unlawful act by unlawful means may be established by evidence of circumstances from which such an agreement may be inferred. It is axiomatic that there must be proof and not mere conjecture. In the present case there was sufficient evidence which conspiracy could be propery inferred.” (emphasis added) [90] See also the English Court of Appeal decision in the case of Dadourian Group International Inc and other v Simms and other [2009] All ER (D) 175 (Mar): “Mr Cakebread appeared to be equating proper inferences with conjecture and assumption. At times he came close to suggesting that fraud can only be established where there is direct evidence. If that were the case, few allegations of fraud would ever come to trial. Fraudsters rarely sit down and reduce their dishonest agreement to writing. Frauds are commonly proved on the basis of inviting the fact-finder to draw proper inferences from the primary facts. That is exactly what the judge did here.” (emphasis added) [91] It is also proper for the Court to draw inferences from the conduct of the parties. This is echoed in Bullen & Leake’s Precedents on Pleadings (16th Edition) which the author wrote: “It is not necessary to show that there was anything in the nature of an express agreement, whether formal or informal. The court looks at the overt acts of the conspiracy and infers from those acts that there agreement to further the common object of the combination. It is sufficient that two or more persons combine with the necessary intention or that they deliberately co-operate, albeit tacitly, to achieve the common end. (Emphasis added) [92] No cunning fraudster would ever find it necessary to leave a paper trail of their fraud or conspiracy to defraud. The law in proving fraud does not require such hard documentary evidence. Suffice that it is inferred by compelling circumstances. And the court is drawing such inference from all these circumstances. These are no mere suspicions. They are calculated inferences substantiated by close scrutiny and analysis of the given circumstances of the case. This Court is at liberty and at law to draw such inferences from such circumstances. The Plaintiff has the rights and standing to dispute the transactions between Microvest, Plustrans and Draconis [93] Preliminarily, the Defendants submit that the Plaintiff is not privy to the dealings between Microvest and Plustrans, thus is in no position to dispute the facts of the dealings. This Court totally disagrees with this contention. [94] The Plaintiff here is a victim of fraud. And it is trite law that a victim of fraud has the rights in equity to follow and trace the monies he had lost. The Court draws valuable guidance from Lord Denning’s insightful decision in Bankers Trust Co v Shapira and Ors [1980] 3 All ER 353: “The Plaintiff, who has been defrauded, has a right in equity to follow the money” [95] Thus, the Plaintiff is in the position to scrutinize the dealings Plustrans had with Microvest as Microvest has undoubtedly received and participated in the proceeds of JM and Vijaya’s fraud. Elements to prove the tort of conspiracy [96] The elements to prove conspiracy are namely: (i) an agreement between two or more persons; (ii) an agreement to injure the Plaintiff (iii) acts done in execution of the agreement resulted in damage to the Plaintiff (See Yap JH v Tan Sri Loh Boon Siew & Ors [1991] 3 CLJ 2960) [97] Evident from the earlier discussion above, there is no necessity for the Plaintiff to prove that there was ever a written agreement between Microvest and the other fraudsters to be complicit in the fraud. [98] This agreement can be inferred by the Court from the circumstances surrounding the case. The circumstances are compelling that indeed Microvest has concerted in the fraud in that they are recipients and participants of the proceeds from JM and Vijaya’s fraud. There are a multitude of facts and circumstances which the Court has considered in reaching to such calculated inference. Namely, the circumstances are that: (a) The movement of funds are isolated transactions which clearly involves exclusively the proceeds from the illegitimate procurement of the facility under the LO. (b) Microvest’s and Plustrans’s FCA would have a nil balance if not for the crediting of the facility granted under the LO (c) The only monies in Microvest’s and Plustrans’s FCA were the proceeds from JM and Vijaya’s fraud. (d) Microvest’s and Plustrans’s FCA have a nil balance immediately before the proceeds of the fraud was transacted into their accounts. (e) It is too much of a coincidence that both Microvest and Plustrans have only set up their FCAs very shortly before the facility was granted. Plustrans set up their FCA just 10 days before the crediting of the facility. Microvest set up their FCA on 12.3.2008 which is only slightly more than a month before the crediting of the facility. (f) A large majority of the proceeds (USD4 million out of USD4.55 million credited) from the fraud credited to Plustrans on 30.4.2008 was transferred to Microvest’s empty FCA account only 5 days after the crediting of the facility which is on 5.5.2008. (g) Ultimately, the Defendants have completely failed to prove any legitimate business and in fact have misled this Court with incoherent documents, testimonies. Thus, the Defendants does not have any justification to legitimise their participation and receipt of the proceeds of the fraud. [99] All these aggressive and extremely quick movements of the proceeds from the fraud are very telling of a “layering” exercise to dissipate and distribute the proceeds to multiple layers of recipients in an effort to render the proceeds untraceable as it would be mixed with other funds in other accounts. [100] Now, against these compelling facts above, Microvest’s main contention against the implication of conspiracy (in their participation of the proceeds of the fraud) is that Microvest had legitimate business with Plustrans which justifies the receipt of the USD4 million by Microvest. [101] Now, this alleged legitimate business is that Plustrans has contracted with Microvest for the supply of diesel worth a whopping USD 7.25 million (RM23,000,000.00). If this shall be the case, then allegedly Microvest merely coincidentally was paid for their business by Plustrans using the proceeds of the fraud. Microvest also sought to prove the availability of diesel vide the alleged diesel supply between Draconis, an agent company based in the Bahamas, and Microvest. Draconis was submitted to be an agent who gets supply of diesel from undisclosed owners. Total lack of documentary evidence to prove Microvest’s alleged business with Plustrans and Draconis [102] However, this particular legitimate business cannot, in the view of this Court be farther from the truth. In the effort to prove this supposed legitimate business, for an utterly massive amount of RM 23,000,000.00 all that Microvest has produced were two invoices and delivery orders. (See tabs 34 and 35 of the PCBD) [103] And in its fallible attempt to prove the legitimacy of Microvest’s business with Draconis, the Defendants merely produced two invoices in which these two invoices does not even have any corresponding documents to prove any order or communication of such order for diesel supply from Microvest to Draconis. [104] Apart from these invoices and delivery orders there was nothing else to prove any sort of confirmation of delivery, proof of logistics, acknowledgment of receipt or even any agreement of any sort to prove the diesel supply deal worth a whopping RM23,000,000.00. [105] Albeit that the Defendants submit that the reason for the total absence of all other supporting documents was that the deal was done vide an Off-Port Limits arrangement (“OPL”), this Court finds it far too remarkable to believe that a deal of that magnitude can be proven merely on these 2 invoices and Delivery Orders which proves virtually nothing. There was a total absence of evidence of logistics of the said diesel supply from Microvest to Plustrans and from Draconis to Microvest [106] Even within the submission of the Defendants they have admitted that even an OPL setting would require a vessel or marine logistics to carry the consignment to the designated location in the international waters. The Defendants could not even produce any evidence of these logistics. The Defendants could not even provide the Court with the name of the vessel, the crew, or even the captain of the vessel involved in transporting these alleged massive consignments of diesel. [107] It is utterly unbelievable that despite the massive alleged monies transacted for the supply of diesel, that the Defendant was unable to provide other details besides the two invoices. If indeed there was this sale and delivery, there must have been a vessel involved. It was said that it was delivered in the international waters. It is beyond logic and common sense that this assertion can hold water if the Defendants cannot even provide details and evidence to the vessel, and/or crew which were involved in the alleged delivery and logistics. Liew in his evidence on Microvest’s alleged dealing with Plustrans is blatantly candid in his admission that there are no logistical evidence of delivery between Plustrans and Microvest and Microvest and Draconis. (See page 482 of the Notes of Evidence Volume 2): “BJD: Neither is there any logistical evidence of delivery, both ways right? DW1: You mean shipping document? BJD: Yes. DW: Nope. BJD: And we are talking about a RM 23 million transaction right? DW1: That is true” [108] It is even more perplexing that the Defendants contradict themselves regarding the authenticity of the business dealings. In one breath, the Defendants submit that the location of OPL transaction should remain a secret. But in another breath, Liew himself admitted that a genuine businessman would be transparent on the place of delivery. (See page 484 of the Notes of Evidence Volume 2): “BJD: I put it to you that any genuine businessman would be transparent on the place of the delivery of their transaction. Do you not agree? DW1: I agree.” [109] Upon this admission, even Liew himself could not be seen as a genuine businessman as he is verily not transparent on the place of delivery. More so considering the Defendants cannot even confirm and furnish the Court details on the name of the vessel involved, the captain, the crew, the terms of shipment, date of shipment and many other relevant shipping documents. These were all admitted to be non-existent by Liew himself. [110] It was the Defendants’ submission and in a surprising reference to Wikipedia (which is not even close to a verified and credible authority on marine trade) that the transfer of oil is conducted vide a Ship to Ship transfer (“STS”). Therein which, it goes without a doubt that the OPL transaction would involve not just one but a minimum number of two vessels. The Defendants were unable to even confirm, prove and furnish the Court with any name of the vessels involved in the transaction. There were no credible authorities forwarded by the Defendants that these OPL transactions should be carried out in secrecy. In fact, as will be discussed below, even Liew has contradicted himself on this assertion of secrecy. Contradiction on the secrecy of the OPL transaction Location [111] It is Liew’s testimony that the reason the Defendants are unable to furnish the Court on the location of the OPL transactions involving Plustrans and Draconis, is that the location should remain a secret owing to the fact that they were OPL transactions. [112] Nevertheless, Liew’s own documentary evidence directly contradicts this assertion of secrecy. In a different OPL transaction at page 90 of Bundle B, Liew found no restraints whatsoever to disclose to the Court a plethora of information inclusive of the name of the vessel (Tuah Sari), the location of the terminal “Eastern OPL Singapore” (see page 97 of Bundle B), the appointed oil tester, SGS Testing & Control Services Singapore Pte Ltd (“SGS”) and even the date of arrival of the vessel being 12.11.2006. [113] It is blatantly apparent here that these details on the OPL transaction is not even close to being a secret. The Court is minded that these information above, were either concealed or failed to be furnished by the Defendants with regard to Microvest’s deal with Plustrans and Draconis. It is far too unbelievable that Microvest won’t insist on separate acknowledgment of receipt for each delivery of diesel [114] It is a given that for any delivery of whatever consignment, especially transportation by sea, that the seller would require any form of proof acknowledged by the buyer that they have duly received the consignment delivered. Any reasonable and prudent businessman would insist on such acknowledgment. This acknowledgment is proof that the goods were delivered and therefore, forms the sole basis that the buyer now is required by law to pay the seller. [115] Now, apart from the two invoices and delivery orders, it is the testimony of Liew that the delivery of the diesel took about 6 weeks and spans between 15 to 18 deliveries. [116] Firstly, it is amazingly shocking that for a diesel supply deal involving RM23,000,000.00 that Liew could not even exactly recall the total numbers of delivery made to Plustrans. [117] Secondly, it is utterly peculiar that the Defendants did not insist on any sort of acknowledgment of delivery or receipt from Plustrans for each and every single delivery made. [118] Any prudent businessman would not have conducted his business in such manner. Any prudent businessman would not risk losing proof of delivery so as to protect his rights to claim for monies due from the deliveries. [119] It is even more remarkable that Liew as a businessman asserts that it is “quite alright” to chase for payments without evidence of delivery. This ridiculous admission by Liew seriously gnaws on the veracity and credibility of his testimony. During the cross-examination, Liew stated: BJD: I would have expected you to obtain from Plustrans an acknowledgment of the alleged delivery of the 15 to 18 batches of diesel on each delivery? DW1: I trusted them BJD: And what happens if they don’t sign the delivery order on the 5th of May and 27th of May 2008? What would you do? DW1: I would chase for payment/ BJD: Without any evidence? DW1: That is quite alright with me” Failure of the Defendants to produce the alleged notebook which Liew allegedly records all deliveries made [120] Along the line of Liew’s testimony, Liew stated that he had unilaterally recorded all the deliveries made to Plustrans or Microvest. He had strongly admitted that the written notebook was in his possession during cross-examination. (See page 488 of the Notes of Evidence Volume 2) [121] Despite this assertion, this alleged written notebook in his possession was never produced in Court. This Court immensely questions the credibility of Liew’s testimony at this juncture. The rhetoric is overwhelming and simple. If indeed Liew had in his possession this written notebook, tabulating all the deliveries made to Plustrans by Microvest, why has he never produced it into court? Clearly here that Liew was utterly hesitant to substantiate his assertion. In fact he was unable to substantiate his assertion. This is by no means a mere suspicion. It is a fair and obvious inference on Liew’s failure and/or reluctance to produce the written notebook into Court. Microvest’s ridiculous business setting with Draconis in not identifying the actual owners of the diesel [122] Liew in his testimony during cross-examination has stated that Draconis is a mere agent in which they are not the owners of the diesel. It is his evidence that Draconis as an agent is merely a third party to the deal between Microvest and these ‘undisclosed owners’. [123] It is incredulous, that any businessman would pay a third party agent for the supply of diesel in which that agent does not disclose his sources or the actual owners who supply the diesel. [124] If this is the business setting, how could Microvest as a prudent purchaser verify if Draconis indeed has the capability to supply such diesel consignments? What businessman would put their business through such unnecessary risk of dealing with a supplier who cannot verify and prove their capability to supply? Especially for a supply deal which runs into multi-million USD amount. [125] This again, adds to the propriety of this Court’s inference that there was no legitimate business to justify the Defendants’ participation in the proceeds from the fraud. The payment term of Cash on Delivery (“COD”) is horrendously improbable [126] It is the evidence and submission of the Defendants that the payment term for the shipment of the whopping RM23,000,000.00 worth of diesel is on COD. This Court is immensely moved to question and infer the total unreasonableness of this contention. Owing to the alleged transaction vide an OPL setting, it is also the evidence of the Defendants that even the supply deal with Draconis is conducted on COD term. [127] It is intensely shocking how a business would be conducted so lackadaisically and so loosely in the face of a massive amount of money involved. We have earlier discussed that Microvest never insisted the issuance of any acknowledgment of receipt from Plustrans. Now, adding to the bafflement, Microvest would even run a high risk of being an unsecured creditor without a single form of guarantee of payment by its buyers. This does not at all denote a genuine and sensible business. [128] Notwithstanding the assertion that Liew was convinced and trusted Plustrans’s capability to pay based on an alleged USD20 million that Plustrans received from Global Benchmark or that Plustrans had a Maybank facility of USD10 million, any reasonable businessman would understand that mere proof of monies held does not necessarily dictate that these monies were definitely going to be used to pay any particular debts (especially considering that these debts with Plustrans are without proof of receipt and delivery). Evidently enough, Plustrans did default on a large portion of the payment and was admitted by Liew that Plustrans had a cash flow problem. Logic and common sense would have it that even at the face of these incoming monies, the least the Defendants could have insisted is a form of guarantee for the payment and not merely conduct the business on an enormously risky COD term. Proof of Availability of Global Benchmark’s monies is incoherent with the Defendants’ testimony (i) Furthermore, it adds to the inference that the Defendants’ story is an utter façade of a tall fabricated tale when the supposed proof availability of monies to Plustrans vide Global Benchmark’s payment is dated at least 6 years after the LO was granted. The Defendants’ proof of Global Benchmark’s monies is at Page 122 of Bundle B. This is a fax copy of the alleged telegraphic transfer of USD20 million from Global Benchmark to Plustrans. (ii) However, as correctly pointed out by the Plaintiff, it is verily peculiar that the date of the faxing is recorded at the top left of the document as: “03/ 10 2015 17: 41 FAX” (iii) This case has not even passed the month of July of 2015. This seriously goes against the credibility the assertion of Liew’s reliance on the Global Benchmark’s monies in putting total trust into Plustrans. As it stands, there is no documentary proof that this telegraphic transfer was made aware to the Defendants before engaging into business with Plustrans in 2008. This odd discrepancy also invites the Court’s scrutiny on the authenticity of this facsimile. Total absence evidence of reasonably prompt and timely demands upon Plustrans’s default in May 2008 [129] At this juncture, it is important to note that it is admitted that allegedly Plustrans has defaulted approximately a remainder sum of USD 3.25 million from the alleged diesel supply deal with Microvest around May 2008. It is the testimony of Liew that immediately upon this default, Microvest had chased for the remainder payment in four separate demands dated 10.6.2008, 17.6.2008, 20.6.2008 and 6.4.2011. [130] The first three demands in 2008, in this Court’s view are thoroughly unsubstantiated. Although the Defendants have tendered the alleged demands in pages 4 to 6 of Common Bundle of Documents Volume 7, these documents by no means have any proof of posting or faxing or receipt by Plustrans. These were merely demands on paper signed by Liew himself. [131] It is odd that the Defendants were able to provide the facsimile transmission verification report for their demand vide their solicitors in the year 2011 (see page 15 of Common Bundle of Documents Volume 7) but not a single proof of posting or successful faxing of the first three alleged demands in the year 2008. [132] Firstly, the Court is moved to infer the dishonesty and falseness of the Defendants’ assertion on the immediate three demands in 2008 due to the fact that in contrast to the availability of the 2011 demand proof of delivery, (knowing that they should produce proof of delivery) the Defendants were unable to furnish proof of delivery for the three demands in 2008. [133] Secondly, it still stands now that the Defendants have no proof to substantiate their assertion on timely demands against Plustrans. Thus, it is very peculiar and unreasonable, that the Defendants would only lackadaisically see it fit to instruct their solicitors to demand for the payment of USD3.25 million 3 years after the default. It is does not make sense that the Defendants only see it fit to issue such demand only after this action has commenced 3 years after the default. Any trader who was persuaded to give their total trust would have pursued the remainder payment promptly and aggressively. It is wholly preposterous that the oil testing for the USD7.25 million deal is conducted based on ‘smell and touch’ [134] Liew during cross-examination has candidly admitted that he is able to ‘see and touch’ the quality, viscosity and content of the diesel in order to ascertain the quality and quantity of the diesel to be of proper make (see page 492 of the Notes of Evidence Volume 2). Even when he buys the massive amount of diesel from Draconis, Liew is able to determine the quality and quantity of thousands of tonnes of Diesel by ‘seeing and touching’. “BJD: Now, ordinarily when a diesel of large commercial value is delivered you would appoint an oil tester to determine the quality and quantity, right? DW1: Only at the request of the client BJD: No, when you are purchasing it? DW1: When I purchase, usually I don’t BJD: You don’t? You don’t as well? DW1: I don’t. Because I am able to see and touch it myself. There are other ways to see the quality if the oil besides using a SGS.” [135] To begin to deal with the total ludicrousness of this supposed ‘expertise’ to see and touch diesel, this Court reiterates that this supply deal involves diesel in thousands of tonnes worth USD 7.25 million. [136] Liew is not giving evidence as an expert. He is not even an authority in quantification and quality assessment and analysis of diesel. There were no other authorities afforded by the Defendants to prove that it is possible that a human being or even a group of human beings are able to qualify and quantify thousands of tonnes of diesel by merely seeing and touching the consignments. [137] It is a given that in dealings of diesel and/or its products traders would require specific qualities and specifications for the diesel. The quality of diesel varies and it varies from its viscosity, content, and compound. Traders then would even usually stipulate the allowable margin of non-confirmity to consider the delivery is of good quality and proper quantity. Assuming that in one delivery, there would be 800 metric tonnes of diesel to assess, how is it humanly possible that Liew as an individual human being can ascertain the quality, viscosity, content and compound of all the 800 metric tonnes of diesel of that single delivery? This rhetoric is verily compelling and it is utterly telling that Liew’s assertion on his skills and expertise to assess diesel quantity and quality by see and touch, is a total façade. [138] No prudent and reasonable businessman would risk the non-conformity of diesel supplied either in its quality and/or quantity by merely assessing the diesel vide touching and seeing. This assertion goes beyond logic and common sense. Total absence of Written Agreements in Microvest’s deal with Plustrans and Draconis [139] The Defendants submits that owing to the fact that the delivery was conducted through an OPL transaction, it is justifiable that the Defendants do not have any written agreement with Plustrans and Draconis. It is Liew’s testimony that every arrangement is discussed via telephone. [140] At a multitude of levels, the Court finds this assertion to be totally unbelievable. (i) The diesel involved is worth a whopping USD 7.25 million and spans over an alleged 15 to 18 deliveries. It is far too remarkable that any of the Parties see it fit to put the terms of the supply in writing considering the voluminous number of delivery and amount of money involved. (ii) Against the Defendants’ own contention that the supply is conducted on international waters via STS, it would make more sense that the Parties would draw out a single mutual agreement as to the date, the shipping terms, the vessel and crew involved, the location of the delivery in one singe agreement. Furthermore considering the fact that Draconis is a company based in Bahamas, it would be ridiculous to believe that all these terms would be discussed through the telephone considering the time difference between Malaysia and the Bahamas. It would make more business sense for the Parties to mutually agree to one written agreement clearly stipulating the details and terms of the shipment. (iii) A written agreement would be more reasonably fitting to provide security and certainty to the Parties to its rights and obligations considering the amount involved is massive (USD 7.25 million) and that the delivery would be made in multiple consignments over a certain period of time. No reasonable businessman would run the risk of not having their rights and obligations properly defined and substantiated especially when they risk to lose millions of dollars. Incoherent date of the Microvest’s email to prove their business with Plustrans. [141] This is another telling crack to Liew’s prolific concoction of false facts in his tall fabricated tale. [142] It is already admitted by the Defendants themselves that Plustrans has already made the transfer of USD4 million from Plustrans’s FCA on 5.5.2008. Now, one of the other evidences the Defendants sought to use to substantiate this facade is a purported email from Plustrans to Maybank dated 3.6.2008 to effect payment for the supply of diesel from Microvest to Plustrans. (See page 191 of Common Bundle of Documents Volume 2) [143] The timeline does not at all fit the story that Liew is telling. There is no reason at all for the Court to believe that this email is evidence of the business Microvest has with Plustrans because the payment referred to in the email would definitely not have referred to the delivery Microvest performed to Plustrans as the monies for that delivery have already been paid 3 weeks ago before that email was allegedly sent. In fact it goes exactly the opposite way. This discrepancy further discredits the testimony of Liew and the Defendants’ case as a whole. [144] Scrutinising the email from Plustrans’s Captain Fuad, the date could not have been a typo error. It is not a date that was typed in by the sender. It is the date at the header of the email (in this case Gmail) which is electronically ascribed by the email service provider which is connected to the internet. The date is not dependent on the time and date settings of the computer at all. There is in no way possible that the date was a typo error. It is utterly clear now that this is another rouse concocted by Liew to tailor up his bogus case. The invoices and delivery orders are not conclusive evidence of business relations [145] It is the Defendants’ submission that the invoices and delivery orders, being signed by Plustrans are conclusive evidences under Section 91 of the Evidence Act 1950. [146] However as stated above, the Court shall never be an instrument of fraud. The Court has discussed at length earlier that there is no proof of a genuine business to justify Microvest’s participation in the proceeds of the fraud. This Court is in total disbelief all these invoices and delivery orders. Thus, the Court looks to the trite maxim of “Fraud unravels all” and shall look beyond these documents and see the true nature of the fraud. [147] Suffice that this Court draws reliance to the Court of Appeal decision in Seri Kelangkota Rakan Engineering JV Sdn Bhd & Ors v Arab-Malaysian Prima Realty Sdn Bhd [2001] 1 MLJ in which Gopal Sri Ram JCA (as he then was) explained: “Parties to a transaction may disguise its true nature and purport by whatever means available to them. Yet, the court will tear away the disguise and reveal to the world at large the true arrangement arrived at between the parties. It is important for reasons of public policy that the court seised of this power. Were it not so, the law would be lending its aid to enforce pretended and not real obligations.”(Emphasis added) [148] And in the present case, this Court does not intend at all to lend an aid to the façade brought forth by the Defendants in colluding with the fraud. Thus, the invoices and delivery orders are definitely not conclusive evidence of Microvest’s business with Plustrans and Draconis. Court’s Finding on Microvest’s Legitimacy of Business with Plustrans and Draconis [149] This Court before making its finding intends to categorically recap and list down all the factors considered earlier in reaching its conclusion: (a) Total lack of documentary evidence to prove Microvest’s alleged business with Plustrans and Draconis (b) There was total absence of evidence of logistics of the said diesel supply from Microvest to Plustrans and from Draconis to Microvest (c) Contradiction on the secrecy of the OPL transaction Location. (d) It is far too unbelievable that Microvest would not insist on separate acknowledgment of receipt for each delivery of diesel (e) Failure of the Defendants to produce the alleged notebook which Liew allegedly records all deliveries made (f) Microvest’s ridiculous business setting with Draconis in not identifying the actual owners of the diesel (g) The payment term of Cash on Delivery (“COD”) is horrendously improbable (h) Proof of Availability of Global Benchmark’s monies is incoherent with the Defendants’ testimony (i) Total absence evidence of reasonably prompt and timely demands upon Plustrans’s default in May 2008 (j) It is wholly preposterous that the oil testing for the USD7.25 million deal is conducted based on ‘smell and touch’ (k) Total absence of Written Agreements in Microvest’s deal with Plustrans and Draconis (l) Incoherent date of the Microvest’s email to prove their business with Plustrans. (m) The invoices and delivery orders are not conclusive evidence of business relations [150] In view of the numerous consideration above, it is therefore this Court’s considered view and calculated inference that indeed there was NO legitimate business whatsoever between Plustrans and Microvest and Draconis to justify Microvest’s participation and receipt into the proceeds of the fraud. Court’s finding on Microvest’s involvement in the fraud [151] In view of all the discussion above, it is this Court’s considered view that indeed Microvest is a conspirator to the fraud and is liable to the tort of conspiracy. [152] There were sound evidences of Microvest misleading the Court with incoherent and incredulous assertions which goes beyond logic and common sense. It is thoroughly clear that all the documents and assertions put forth were a façade to put the concerted effort (to layer the proceeds from the fraud) underneath the cloak of a legitimate business deal (which is entirely untrue). Microvest is in no way near of any justification of receiving the proceeds from the fraud and in fact has instead proven that Microvest has put an attempt to mislead the Court with the notion of a legitimate business with Plustrans and Draconis. [153] Thus, it is this Court’s considered view and inference that there was indeed an agreement between the fraudsters and Microvest as a conspirator to conduct an exercise of layering to render the proceeds of the fraud untraceable. This is indeed an agreement to injure the Plaintiff and in execution of this agreement, the Plaintiff indeed has suffered damages. All the elements to prove the tort of conspiracy has been proven. [154] Furthermore, upon all of the incoherent, inconsistent and false evidences and assertions of Liew as witness, it is also the finding of this Court that Liew is indeed an untrustworthy witness. Entailing that finding, the entire tale told by Liew regarding Microvest is undoubtedly improbable. [155] This Court is guided by the principle propounded in numerous cases which state that in evaluating evidence, the Court shall have regard to the probability or improbability of the versions presented by the parties, whether the oral evidence of the witnesses are supported by documentary evidence and the conduct and credibility of the parties. (See Dato’ Seri Anwar Ibrahim v PP & anor Appeal [2015] 2 MLJ 293 at para. 49; Tindok Besar Estate Sdn Bhd v Tinjar Co. [1979] 2 MLJ 229) [156] The Court finds that the version presented by Liew is utterly improbable and the oral testimony of Liew is totally unsupported by any documentary evidence. Issue (iii): Whether There Was Legitimate Reason For Microvest To Transfer Of USD3 Million (From The Facilities Granted Under The LO) From Microvest’s FCA To Liew? Issue (v): Whether Liew can be implicated to be co-conspirators to the fraudulent act? Issue (iii) and (v) shall be dealt together. [157] It is reiterated here that Microvest has been found earlier to be complicit in the fraud. [158] It is also undisputed that the proceeds of the fraud had first been layered into Microvest’s account and subsequently was transferred to Liew’s Personal account. Similarly, the hypothesis is that if and unless Liew could prove a legitimate reason to justify his participation in the proceeds of the fraud, then it is safe for the Court to infer that even Liew has colluded in the exercise of layering the proceeds of the fraud in an attempt to render the proceeds of the fraud untraceable. It is already unsurprising at this point, that this Court is minded that Liew being the false witness that he is, has come up to give three separate, different and contradicting justifications on the alleged legitimate reason that would justify Liew’s receipt and participation in the proceeds of the fraud. Liew’s blatant inconsistencies in justifying the receipt of the proceeds from the fraud [159] At this juncture, Liew as expected, had drew three breaths, and with each breath exhaled three different justifications for his participation in the proceeds from the fraud. All three are utterly different from the other. It is already telling here that Liew himself is unsure and in fact misleading the Court with his so-called justifications. These false justifications are namely that: (i) The receipt of the proceeds of the fraud is to pay a “hutang”(debt) (ii) The receipt of the proceeds of the fraud is to pay Draconis for an alleged supply of diesel (iii) The receipt of the proceeds of the fraud is to obtain overdraft facility from the bank for Microvest [160] Now, the first two justifications were brought upon by Liew in his statements to Inspector Shakir during the criminal investigation in the criminal trial in the Melaka Sessions Court. Inspector Shakir has testified during cross-examination in the present case that indeed Liew had given two separate and different justifications for his participation in the proceeds of the fraud. (see Notes of Evidence, Tab 37 of the PCBD) [161] It is also important to note that Inspector Shakir has also testified that Liew has never come clean and forwarded any of the invoices or delivery orders to substantiate his justification (see page 557 of the Notes of Evidence Volume 2): “DW5: Yang Arif, as I have stated earlier my line of investigation is we investigated on the company of Plustrans, that means dealing with the complainant with Ms Vijaya that time with Plustrans Court: Your basis of investigation is a transaction between Jejak Maju and Plustrans? DW5: Jejak Maju and Plustrans Court: That ‘s your basis? DW5: Yes that is basis. DW5: So where did they get the supply for oil, as claim from Plustrans they get from Microvest Court: But you have not actually investigate whether, because the delivery order was not before you? DW5: Yes” Court: The invoices not before you? DW5: Yes” [162] Based on the foregoing facts, testimonies and evidences, the following is the Court’s inferences with regards to Liews inconsistent Justifications: (i) It is already telling that Liew is untrustworthy as he himself was very hesitant in statements to the police to come clean and fully furnish the details of the ‘hutang’. This hesitance to describe the hutang in his first statement to the Police is an alarming proof that Liew is merely concocting tales to absolve himself from any criminal or civil liability. The receipt of the proceeds of the fraud is the core basis of the charge. Rhetorically speaking, if indeed the monies were transacted for him to pay a supply of diesel, why would Liew hesitated to inform as such and furnish all the relevant invoices and delivery orders to substantiate his supposed innocence? The Court notes the inconsistency of Liew’s justification and description over the USD4mil which was paid to him by Microvest. Bearing in mind that it involves a massive sum of monies, it begs the Court’s scrutiny on the reason behind Liew’s initial hesitation to describe the purpose of the payment of usd4mil in his initial statement. Liew is well aware that this transaction is the core of the investigation against him. The court could not understand why did Liew did not find it appropriate or hesitated to give a full description rather than just saying it is for “hutang” in the first place? This again, begs the Court to question the credibility, probability and the truthfulness of the Liew’s assertion. (ii) It is verily evident that Liew is merely concocting his statements as and when it is beneficial to himself as he has failed and/or was reluctant to furnish Inspector Shakir with the relevant invoices and delivery orders to substantiate his statement. (iii) The justification that Liew received the monies to pay Draconis defies any logic or common sense. If indeed the monies were transacted for the purpose of paying Draconis for their supply of diesel, why would Microvest instead transfer the monies into Liew’s personal account and not directly to Draconis which would have been more efficient to achieve that purpose. There’s no conceivable reason to let the monies pass through Liew before payment is made to Draconis. (iv) It defies the very fabric of banking and commercial principles to assert that it is more advisable to have Liew receive the monies in his personal account as Director in the pursuit of obtaining Overdraft facilities from the Bank. When a Bank is considering the legibility of a corporation for a facility, it goes without saying that the Bank is more concerned on the financial health of the Corporation rather than its director(s). It would make more sense that the Bank would definitely be more persuaded to grant facilities to a corporation when the Corporation itself furnished securities of its own fixed deposit account. The monies of a Director are not by any means the asset of the company. But monies in a Corporation’s own fixed deposit are definitely its own asset. And a Bank would be more persuaded to grant facilities to a Corporation knowing that the same Corporation is able to furnish valuable securities out of its own assets. Court’s findings on Liew’s involvement in the fraud [163] In light of the lengthy discourse earlier and the inferences drawn above, it is this Court considered view that Liew has dreadfully failed to prove any viable justification of his participation in the proceeds of the fraud. [164] Thus, it is also this Court’s considered view that in absence of such evidence, it is evidently clear that Liew is liable for the tort of conspiracy as his participation in the proceeds of the fraud is indeed another layer in the layering exercise concerted by the Defedants in attempting to render the proceeds untraceable. It is a clear evidence of an agreement between Liew and the other fraudsters and conspirators to defraud the Plaintiff and to attempt to render the proceeds from the fraud untraceable vide this layering exercise. The issue of the applicable of burden of proof is a moot point [165] The Court does not intend to delve deeply into this issue. After discussing all the evidences and submissions of the parties, it is this Court’s view that the issue of burden of proof is merely a moot point. [166] The evidences and the parties’ submissions are adequately sufficient for this Court to make its findings above notwithstanding the burden of proof being the civil balance of probabilities or the criminal beyond reasonable doubt. [167] The evidences are immensely overwhelming to show that the Defendants’ case is verily improbable with acute certainty and without a single iota of doubt. This Court holds no doubt in Plaintiff’s case and this Court also finds that the Defendants’ defence wholly improbable. [168] Nevertheless, for the sake of completeness, this Court is of the opinion that the appropriate burden of proof is the civil balance of probabilities. Namely because: (i) The Plaintiff has correctly pointed out that the case of Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301 is distinguishable to the present case. In that the Federal Court in the Paper Mills Case (in upholding the burden of proof to be on a beyond reasonable doubt basis) had to deal with fraud in the criminal act of arson. It is a hybrid of civil fraud and another serious criminal conduct of arson. (ii) It is more relevant and appropriate for this Court to seek guidance to the Federal Court decision in the case of Ang Hiok Seng @ Ang Yok Seng v Yim Yut Kiu (Professional representative of the estate of Chan Weng Sun, deceased) [1997] 2 MLJ 45. Azmi FCJ (as he then was) had held on the applicable burden of proof in proving fraud: “But where the allegation of fraud is entirely founded on a civil fraud – not based on a criminal conduct or offence – the civil burden is applicable”. (iii) Indeed the circumstances of the present case is closer and more relevant to the above excerpt of the Federal Court’s decision as indeed the allegation of fraud is purely founded on a civil fraud. The fraud in the present case can stand alone without any symbiosis of another criminal offence (unlike the Paper Mills case which the fraud is innate with the criminal act of arson) (iv) Furthermore, a recent decision by Prasad Abraham J (as he then was) in the case of Modern Universal Sdn Bhd v MSIG Insurance (M) Sdn Bhd [2014] 11 MLJ 186 has preferred the stance taken in the Ang Hiok Seng case over the stance of the Paper Mills case. (v) Additionally, alluding to one of the authorities referred to by the Defendants at page 49 of their submissions, particularly the Supreme Court decision of Chu Choon Moi v Ngan Siew Tin [1986] 1 MLJ 34 at page 38: “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The degree of proof need not reach certainty but it must carry a high degree of probability. What is means is that the evidence adduced is such that the court or a prudent man consideres its existence probable in the circumstances of the case” Looking at the excerpt of the Supreme Court’s decision above, the standard of proof beyond reasonable is merely a label, or a repackaging of the civil balance of probabilities. Although the court upheld the standard of proof of beyond reasonable doubt, the description of that proof is entirely a description of the standard of the civil balance of probabilities. [169] Nevertheless, this Court is of the view that the Plaintiff has clearly proven his case in either of the standards of proof. The decision in the Melaka Sessions Court is irrelevant to this Court [170] This Court is minded that the Melaka Sessions Court in a separate criminal proceeding have charged and acquitted Liew from a charge under the AMLATFA. However, for the following reasons, this Court is of the view that the decision is irrelevant to be considered by this Court: (i) Inspector Shakri who had recommended the acquittal of Liew had only considered and investigated the charge on the relationship of Plustrans with Vijaya and JM. The investigation had not considered the relationship between Plustrans and Microvest as well as Liew. Furthermore, Inspector Shakir was not furnished any of the invoices and/or delivery orders for his investigation. The excerpt of Inspector Shakir’s testimony is reproduced below: “DW5: Yang Arif, as I have stated earlier my line of investigation is we investigated on the company of Plustrans, that means dealing with the complainant with Ms Vijaya that time with Plustrans Court: Your basis of investigation is a transaction between Jejak Maju and Plustrans? DW5: Jejak Maju and Plustrans Court: That is your basis? DW5: Yes that is basis. (ii) Furthermore, the learned Melaka Sessions Court Judge in her grounds of judgment has also noted that the prosecution’s case against Liew was not based on complicity between Microvest and Plustrans and that Inspector Shakir had not investigated the authenticity of the dealings between Plustrans and Microvest. The learned Sessions Court Judge held: “This is simply because it was not the prosecution case that the third accused was complicit in any way with the first and second accused… The investigating Officer (‘I.O.’) did not investigate on genuineness of that contract” It is evident that the Melaka Sessions Court had never delved into the dealings between Microvest and Plustrans. The criminal trial had scrutinised the dealings between Plustrans and Vijaya. Thus, it is fitting that this Court would delve into the complicity of the Defendants in the present case. Microvest’s dealings with other parties are irrelevant to the present case and are unsubstantiated [171] The Court is minded that in attempting to prove the legitimacy of Microvest’s business with Plustrans and Draconis, the Defendants have also submitted other alleged diesel transactions with other Corporations. Namely those corporations are inter alia Alberta Petrochemical, Regal Petroleum, SGS Testing, Haura Biofuels and Bekal Khidmat Sdn Bhd. [172] At this juncture, it must be reminded that only evidences which may prove the business transaction between Microvest and Plustrans as well as Draconis would be relevant evidences for this Court’s consideration. [173] All these other transactions with other Corporations hold no probative value to prove the business Microvest allegedly has with Plustrans and Draconis. Thus, it is this Court’s considered view that these evidences are wholly irrelevant to the present case. On these transactions, this Court must also mention one coincidental fact relating to the companies or corporations purportedly having legitimate diesel dealings or transactions with Microvest namely Bekal Khidmat Sdn Bhd (Bekal Khidmat). With regard to this Bekal Khidmat, both Microvest and Liew sought to produce a letter from Bekal Khidmat’s Managing Director by the name of Hjh.Badariah binti Isman (Badariah). Badariah in her recommendation letter (IDD 123, Bundle C)) has put some good words in respect of Microvest’s performance of supply of petroleum products. However, Bekal Khidmat in an action (Civil Suit 22-1792-2009) before this court had been sued for goods sold and delivered. In its statement of defence defending the action, Bekal Khidmat had introduced its entity as an incorporated company under the laws of Malaysia having its registered address at 61A, Jalan Sesama, Taman Perusahaan Batu Caves, 68100, Batu Caves Selangor Darul Ehsan. In its corporate information appearing in the Companies Commission of Malaysia (CCM)’s register shows that the business of Bekal Khidmat is the trading of electrical and mechanical production. It is obvious and clear that Bekal Khidmat does not engage itself in diesel related business. Eventhough, this letter was only marked for purposes of identification (ID document) being a Part C document as Badariah was not called as a witness. This court takes judicial notice of its existence. The procurement such a letter from this company by Microvest and Liew is another clear deception on the part of both Microvest and Liew. [174] Furthermore, upon scrutiny of all these irrelevant evidences, it must be noted that even these transactions were not sufficiently substantiated by the Defendants. THIS COURT’S DECISION [175] In light of all of the above findings, it is this Court’s decision that the Plaintiff has successfully proven its case while the Defendants have failed to prove any defence against the Plaintiff’s case. [176] Thereto, this Court also dismisses the Defendants’ counter-claim. [177] Owing to the fact that all conspirators to the fraud are acting in concert in the scheme and process of siphoning the money from the Plaintiff, then they are therefore to be jointly and equally liable to all of the sums defrauded, this Court orders the Defendants to pay the Plaintiff’s total amount claimed which is the sum of USD 5,337,847.31 together with continuing interest thereon at the rate of 1.75% per annum above the Bank’s Funding Cost for USD Currency calculated from 22.5.2009 until the date of full settlement. On the issue of costs [178] Counsels for the Plaintiffs and the Defendants had submitted to this Court on the issue of costs. The present case is indeed verily complex and complicated. The amount of monies involved is also considerably substantial. The present case also involved a considerable number of twenty (20) witnesses, in which the Plaintiff had called twelve (12) witnesses to testify, while the Defendants had called eight (8) witnesses to support their case. There were numerous interlocutory proceedings and applications, namely applications for a Mareva Injunction and a stay of proceedings which even stretches long to the Federal Court. Considering the above intricacies and complexity, this Court is of the view that costs to the amount of RM90,000.00 is indeed fair and just. This Court hereby orders the Defendants to pay the Plaintiff RM90,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 12th June, 2015 For the Plaintiff - Tetuan Benjamin Dawson, Solicitors Cik Ooi Ai Yen Cik Mah Kar Yee For the Defendants - Tetuan K.F.Ee & Co Encik James Ee Kah Fuk Cik Nur Amalina Haris 1

Tika 2.6.0

22-758-2009

PLAINTIF HSBC BANK MALAYSIA BERHAD DEFENDAN 1. JEJAK MAJU RESOURCES SDN BHD 2. VIJAYALATHA A/P VELUPILLAI 3. PLUSTRANS RESOURCES SDN BHD 4. TENGKU SHAIFFULIAZAN BIN TENGKU ZAINAL ABIDIN 5. MICROVEST ENGINEERING SDN BHD 6. LIEW TENG SHUEN

12/06/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5830766d-a523-4b75-9eda-155950fab66d&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : MT5-22-758-2009 BETWEEN HSBC BANK MALAYSIA BERHAD .... PLAINTIFF AND 1. JEJAK MAJU RESOURCES SDN BHD 2. VIJAYALATHA A/P VELUPILLAI 3. PLUSTRANS RESOURCES SDN BHD 4. TENGKU SHAIFFULIAZAN BIN .... DEFENDANTS TENGKU ZAINAL ABIDIN 5. MICROVEST ENGINEERING SDN BHD 6. LIEW TENG SHUEN GROUNDS OF JUDGMENT (After full trial) [1] On the surface, this case is fairly complex with the involvement with many parties. To fully understand the nature of this case and the underlying transaction arising from the factual background and chronology of events surrounding the case must be set out first. They are as follows: a) The Plaintiff is a banker running its business under the name of HSBC Bank Malaysia Berhad. b) Jejak Maju Resources Sdn. Bhd (JM), a RM2.00 company (the first defendant) is a company incorporated in Malaysia under the Companies Act 1953. Plustrans Resources Sdn Bhd (the third defendant, “Plustrans”) and Microvest Engineering Sdn Bhd (the fifth defendant, “Microvest”) are companies incorporated in Malaysia having their registered offices at 5A-1, 1st Floor, Jalan Memanda 7, Ampang, 03-32, 3rd Floor, PKNS Complex, Shah Alam and No.117, Block A Damansara Intan No.1, Jalan SS 20/27, Petaling Jaya respectively. c) The second defendant (Vijayalatha a/p Velupillai) was the director of the first defendant (JM), while the fourth defendant (Tengku Shaiffuliazan bin Tengku Zainal Abidin) was the director of the third defendant (Plustrans) and the sixth defendant (Liew Teng Shuen) is the director of the fifth defendant (Microvest). d) The second defendant (Vijaya) is also a lawyer running her own legal practice under the name of Messrs. Vellupillai & Associates. e) A Brazilian company by the name of Target Trading (Target), a valued customer to HSBC Bank Brasil S.A Banco Multiplo (HSBC Brazil) had intended to purchase “high speed diesel” from Petronas Dagangan Berhad. However, Brazil HSBC was informed that this can only be carried out through a local supply agent. f) HSBC Brazil then contacted the Plaintiff to finance the purchase of the diesel by JM, the local supply agent. Thereafter, JM was granted a banking facility by the Plaintiff on the basis of a standby letter of credit provided to the Plaintiff by HSBC Brazil. g) Subsequently, a Letter of Offer (LO) dated 29.4.2008 was issued by the Plaintiff to JM agreeing to provide banking facilities up to USD 5.4 million (the funds) to finance the purchase of the diesel. An instruction was received from HSBC Brazil, made on behalf of Target instructing the Plaintiff to transfer the sum of USD 4.55 million to a Petronas account with Malayan Banking Bhd (MBB). On the same day, the Plaintiff had also received an insistent request from JM to transfer the same amount into the MBB account. Later, the Plaintiff found out that the account number belongs to Plustrans, who, Vijaya claimed was a Petronas dealer. Upon request by Vijaya, the Plaintiff had also on 2.5.2008 disbursed a sum of USD 0.75 million to the Vijaya’s legal firm purportedly for shipping expenses. JM had defaulted payment of the banking facility granted earlier. h) The Plaintiff, subsequently discovered inter alia the following: - there was actually no transaction between the JM and Petronas. - documents relating to the diesel’s sale and purchase transactions were found to be forged documents. - Plustrans had paid a sum of USD 4 million to Microvest. - Plustrans had also paid RM1 million each to the fourth defendant and a person by the name of Mohd. Fuad. - a sum of USD 3 million was paid by Microvest to the sixth defendant (Liew). - the entire transaction in connection with the disbursement of USD 5.4 million by the plaintiff to the JM and thereafter to the rest of the defendants was a fraudulent transaction. i) On 18.6.2008, Vijaya had lodged a police report against, inter alia Microvest and Liew, accusing that they were conspiring with Plustrans to defraud her in the sale and purchase dealings for the diesel. j) On 26.6.2008, the Plaintiff lodged a police report alleging that they have been defrauded by a syndicate consisting of the above named defendants for the sum of USD 5.4 million. k) Following a police investigation, it was found that there are reasonable grounds to suspect an offence under subsection 4(1) of the Anti-Money Laundering and Anti –Terrorism Act (AMLATFA) was committed, and the authority in exercising their powers under sections 44(1) and 50(1) of the AMLATFA had seized and frozen all of the defendants’ accounts. The amount seized is approximately USD 3.327 million (the monies). Thereafter, the fourth defendant (Tengku) and Mohd Fuad were charged for offence under section 420 of the Penal Code, which was to be read together with section 34 of the Penal Code. The fourth defendant and Mohd Fuad were also charged for five other offences each under subsection 4(1)(a) of the AMLATFA. Meanwhile Liew was also charged at the Malacca Sessions Court for an offence under subsection 4(1)(a) of the AMLATFA. [2] It is to be noted that the Plaintiff had obtained a Mareva Injunction to restrain all the Defendants from dealing with the funds. [3] In this present action which was filed on 21.5.2009 by the Plaintiff, the Plaintiff is claiming damages for the sum of USD 5.4 million from all of the Defendants for conspiracy to defraud. To put it simply, what the Plaintiff is claiming is basically damages against all the Defendants for defrauding it in granting banking facilities for the underlying transaction of the sale and purchase of diesel. [4] At the trial, the Plaintiff produced twelve (12) witnesses, while Microvest and Liew had called eight (8) witnesses to refute the Plaintiff’s claim and to prove their counter claim for inter alia damages for loss of reputation. [5] Now, coming back to the Plaintiff’s claim, the link between the Plaintiff and the Defendants with regard to this fraud varies but can be categorized as the fraudsters and the co-conspirators of the alleged fraud who have received the illegitimate fruits of the fraud. The nexuses are as follows: 1st Nexus: The Main Fraudster [6] The main fraudsters are JM, Vijaya and Plustrans. These are the parties involved in the fraud to unlawfully deceive the Plaintiff into granting banking facilities to supposedly finance the sale and purchase of the supply of diesel with Petronas (“Underlying Transaction”). [7] Basically, the alleged fraud is that JM and Vijaya have fraudulently misrepresented the existence of the Underlying Transaction (which remains undisputed by the parties) of a supposed deal to supply diesel to Target from Petronas. This facade of Underlying Transaction remains undisputed and no defendants have submitted that this underlying transaction have ever been performed at any material time. Target is represented by one Antonio Gantus Filho (“Antonio”) as its agent. At the earliest juncture, this Court would already take judicial notice that this Antonio is a felon who has already been tried and convicted in Brazil for the crime of Financial Fraud. (See Sentence by the Brazilian Court at Tab 41 of the PCBD). [8] It is verily important that this Court understands the case of Microvest and Liew, where both the Defendants in this case are disputing the existence of such fraudulent misrepresentation of a later occurrence involving Plustrans mainly on the representations made on Plustrans’ account number by Vijaya and not the Underlying Transaction itself. It is undisputed that the Underlying Transaction has never been performed at all material times. It is undisputed that the facilities granted by the Plaintiff was never utilised to finance this Underlying Transaction. It was submitted by both of the Parties that the facilities granted was not utilised for the purposes of the Underlying Transaction. [9] It is utterly important to note that the Plaintiff has already obtained Judgments in Default against JM and Vijaya. [10] Even though this Court had earlier narrated the detailed background of the case, but to have a better understanding of the whole transaction, the pertinent facts relevant to the transaction is revisited here. Target, a valued customer of HSBC Brazil intended to perform the Underlying Transaction. Target then informed HSBC Brazil that it was Petronas’s requirement that the Underlying Transaction must be conducted vide a local party. This is evident in HSBC Brazil’s representative’s email to the Plaintiff dated 1.4.2008. (See tab 7 of Plaintiff’s Core Bundle of Documents “PCBD”). JM was then appointed to play the role of this local party involved to set the alleged Underlying Transaction in motion. (See HSBC Brazil’s email at tab 8 of the PCBD). The Plaintiff then issued the LO agreeing to provide banking facilities up to USD5.4 million to finance the Underlying Transaction. HSBC Brazil then issued a Standby Letter of Credit (“SBLC”) to secure the facility by the Plaintiff to JM. (See DCBD tab 10). [11] The salient terms of the LO are as follows: (i) It is a condition precedent that USD5.4 million is to be ultimately paid to a Petronas account in Maybank. (see tab 9, page 27 of PCBD) (ii) The conditions precedent are for the sole benefit of the Bank, who may waive their compliance without prejudice to its rights herein or in any Security Document. (see tab 9, page 30 of PCBD) (iii) The Plaintiff may in its absolute discretion vary or add to the terms of the LO. (see tab 9, page 31 of PCBD) [12] It is also Target’s instruction that the facilities should be disbursed on 30.4.2008. 2nd Nexus: Co-conspirators allegedly receiving monies from the fraud [13] The Plaintiff has netted the 4th to the 6th Defendants on the allegation that they have thus far received the proceeds from the fraud. It is the Plaintiff’s case that these defendants, namely Tengku, Microvest and Liew are co-conspirators who have been complicit in the “Layering” of the proceeds from the fraudulent Underlying Transaction. [14] HSBC Brazil vide its instruction dated 30.4.2008, only a day after the LO was issued, instructed on behalf of Target that the Plaintiff should disburse the monies into Petronas’s account in Maybank. However, the account number was not provided or stipulated within this instruction. It merely reads: “ACCORDING TO THE ARRANGEMENTS…WE RECEIVED TARGET’S AUHTORIZATION FOR THE CREDIT OF USD 4,550,000.00 TO PETRONAS’S ACCOUNT IN MAYBANK…” [15] Vijaya then at about 4.15 pm, 15 minutes before close of business issued an instruction on behalf of JM to the Plaintiff to credit the USD4.55 million to an unnamed account number. It is peculiar that despite the obvious and staunch stipulation of the monies to be credited into Petronas’s account, Vijaya never see it appropriate to inform that the account number was not Petronas’s. In fact, Vijaya remained completely silent in her instruction as to the identity of the holder of that account number (which is Plustrans’s account). [16] It is the Plaintiff’s case that the Plaintiff’s Commercial Banking Manager, Chandra Segaran a/l Singaravely (“Chandra”) had been cornered and threatened by Vijaya and the agents of Target to oblige to Vijaya’s instruction to credit the monies into Plustrans’s account namely Plustrans’s Foreign Currency Account (“FCA”) in Maybank. Furthermore, Chandra was also allegedly informed that Plustrans was a dealer with Petronas itself. This Court will delve into the details later in this Judgment. [17] From this point onwards, it is not a disputed fact that the Underlying Transaction have never taken place and indeed the facilities credited into Plustrans were never utilised to purchase anything from Petronas. [18] Bearing in mind that the facilities were never used to set the Underlying Transaction in motion, the Plaintiff sought out to trace the movement of monies from Plustrans’s FCA subsequent to the crediting of the facilities. It was found that Plustrans’s FCA was totally empty and had a nil balance before the facilities were credited into the account on 30.4.2008. The account was also very recently opened on 20.4.2008, just 10 days before the facilities were credited into it. It is safe to infer that the monies in Plustrans’s FCA is undoubtedly only the monies credited from the facilities granted in view of LO granted. [19] Just 5 days after the crediting of the monies, Plustrans transferred almost all of the monies from the facilities granted (USD4 million) to Microvest’s FCA (which was also recently opened on 12.3.2008). Microvest’s FCA also had a nil balance as at 30.4.2008. In fact Microvest’s account was also empty until Plustrans transferred the monies from the facilities granted on 5.5.2008. (See tab 6, page 22 of PCBD). [20] By 20.5.2008, Microvest have transferred almost all of the monies transferred by Plustrans (which was the monies from the facilities granted as it could not be any other money since Plustrans’s FCA was empty before the facilities were credited to Plustrans) (approximately RM9.7 million) as just 2 days after that, Microvest transferred RM 9.7 million to Liew’s account. [21] It is clear that the state of accounts above was not disputed. It is not disputed that the monies in the account was purely the monies which were granted from the LO in view of the Underlying Transaction. There is no case or question of mixed fund in the present case. The monies which were transferred in and out of the FCAs of both Plustrans and Microvest is without a doubt the facilities granted under the LO. The flow is simple. Plustrans’s FCA was empty until the facilities were credited into the account (Hence all the monies in Plustrans’s FCA is monies from the facilities). Microvest’s FCA was empty until Plustrans transferred the monies granted under the LO from their FCA to Microvest’s FCA. (Hence, all the monies in Microvest’s FCA is monies from the facilities). There is no suspicion or speculation here. These are hard facts from the admission and evidence brought before this Court. [22] Albeit there are numerous other movement in the funds involving the monies from the facilities, the above movements in funds were the main basis where the Plaintiff implicates Microvest and Liew in the present case. Thus, the Court would not delve further into these other movements. [23] In the simplest manner possible, the most pivotal issue to be determined in the present case with respect to Microvest and Liew is whether Microvest and Liew can be implicated to be co-conspirators to the fraudulent act of JM, Vijaya and Plustrans. [24] This pivotal issue shall be dealt with by this Court in five prongs: (i) Whether there was a fraudulent misrepresentation stemming from the Underlying Transaction? (ii) Whether there was a legitimate diesel supply transaction to justify the transfer of USD4 million (from the facilities granted under the LO) from Plustrans’s FCA to Microvest? (iii) Whether there was legitimate reason for Microvest to transfer of USD3 million (from the facilities granted under the LO) from Microvest’s FCA to Liew? (iv) Whether Microvest can be implicated as co-conspirators to the fraudulent act? (v) Whether Liew can be implicated as co-conspirators to the fraudulent act? Issue (i): Whether there was a fraudulent misrepresentation stemming from the Underlying Transaction? [25] It is only appropriate for this Court to highlight that in the course of this trial, the Parties have taken two tangents of arguments, i.e first, misrepresentation of Plustrans’s FCA and second, misrepresentation of the Underlying Transaction. 1st Tangent: Misrepresentation of Plustrans’s FCA [26] The first tangent is the alleged misrepresentation of Vijaya in her instruction dated 30.4.2008 in which she instructed the facilities under the LO for the Underlying Transaction to be credited into Plustrans’s account rather than a Petronas account in Maybank. Now, a large majority of the Microvest’s and Liew’s (“Defendants”) defence hinges on the argument that there was never a misrepresentation of the Plustrans account and that it was merely the Plaintiff’s own mistake and/or negligence in misappropriating the facilities into Plustrans’s account without due diligence. 2nd Tangent: Misrepresentation of the Underlying Transaction [27] The second tangent is the alleged misrepresentation on the Underlying Transaction as whole. And this Court is more inclined to agree on this second tangent. The misrepresentation does not just begun upon the misrepresentation of the identity of Plustrans’s account. If so the Defendants vehemently argue on the first tangent, they are not holistically addressing the fraudulent misrepresentation. The representation or misrepresentation of Plustrans’s account does not negate the misrepresentation by JM and Vijaya on the Underlying Transaction. The Plaintiff granted the banking facilities upon representation of this Underlying Transaction of a diesel supply deal with Petronas which indisputably was never set in motion. The Underlying Transaction never took place. [28] With this regard, even the Defendants’ submissions seem to admit the fact that there was a misrepresentation on the Underlying Transaction. The Defendants’ submissions read: “Although the facility was later not used by Jejak Maju to finance the said purchase of diesel from Petronas, it does not mean that the money was unlawful in its own nature” (See Defendants’ Submissions para 5.72) [29] The moment the facility was not utilised for the Underlying Transaction, there arise a misrepresentation of the existence of such Underlying Transaction and this is the core basis of the fraudulent misrepresentation. If the Defendants are even willing to admit to this, then there is very little for the Defendants to ever argue that there was no misrepresentation merely on the tangent of the misrepresentation of Plustrans FCA. [30] Hence, from the outset, the whole length of discourse over the representation or misrepresentation of the Plustrans FCA is innately futile to defeat the implication of fraudulent misrepresentation of the Underlying Transaction. Nevertheless, for the sake of completeness this Court shall still delve with the submissions of the Defendants regarding the misrepresentation of Plustrans’s FCA. [31] It is reiterated that the Defendants’ contention on the Underlying Transaction is very minimal and ultimately does not lay a dent to the fact that the Underlying Transaction is indeed a sham. [32] JM has held out vide the LO that the payment shall ultimately be made to Petronas following the supposed Underlying Transaction. This was entirely not the case. The payment never reached Petronas and there was never a deal to purchase Diesel from Petronas. The fraud does not just end there. [33] PWS6, Ahmad Nabil Bin Azizan (“Nabil”) is Petronas Dagangan Berhad’s (“PDB”) General Counsel. He had further testified that JM: (i) Had never at any point in time made any dealings with PDB (ii) Is not an entity registered with PDB or Petco (iii) Notice of Readiness dated 30.5.2008 (“Notice of Readiness”) and the confirmation of cargo are forged documents. (see page 188 of Bundle C; Questions 4 to 11 of PWS6) (iv) JM’s letter dated 9.6.2008 regarding the dealing with PDB was a false statement. PDB had never have any dealings whatsoever with JM [34] Nabil have written to the Plaintiff confirming that the Notice of Readiness and the allegation of dealings in JM’s letter was false and are forged documents in his letter dated 17.9.2008 (see page 218 of Bundle C). [35] JM held out to represent a forged document supposedly proving that there was progress to the Underlying Transaction which was entirely untrue. The Notice of Readiness does name the consignee as Target in Brazil and the consignor being PDB with PDB’s letterhead. This is entirely forged and was misrepresented to be true by JM. PDB is not even a company which deals with international trade or sales which adds to JM’s misrepresentation. [36] JM further misrepresented the falseness of the dealings with PDB in its letter dated 9.6.2008 in that PDB in reality has never ever has any dealings with JM. In fact, JM was never at any point in time a registered entity with PDB. [37] Furthermore, JM has falsely held out to be a business part with PDB in its Corporate Profile. This representation is entirely untrue and blatantly false. The Corporate Profile reads: “Some of our well known business partners includes PETRONAS…” PARTIAL LIST OF JMRSB ONGOING PROJECTS 1) Supply of 240,000 tonnes FOB Petronas High Speed Diesel to M&G Technologies Sdn Bhd 2) Supply of 240,000 tonnes on FOB of Petronas D2 to Ceria Bersama International Sdn Bhd 3) Supply of 60,000 tonnes on FOB of Petronas D2 to PT Alam Pasifik Sdn Bhd” [38] All of which were false misrepresentations. PDB has never done any dealings with JM as was held out by JM in its Corporate Profile above. And the Defendants have done nothing at all to dispute this fact. Non-reliance on forged documents is irrelevant [39] The Defendants’ general contention on the forged documents was that it is not relied upon by the Plaintiff in granting the facility to JM. However, it must be noted that the Defendants are clearly missing the point of these forged documents. [40] The forged documents are not relevant to prove reliance in the Plaintiff’s case. These documents are only relevant to prove that whatever representations (on the Underlying Transaction) made by JM and Vijaya in obtaining the facility were false misrepresentations. [41] This line of contention does nothing to defeat the Plaintiff’s case. The forged documents serve clear evidence of a false statement which was represented to be true. They are not evidences to prove reliance. They are evidences to prove that the facts relied upon were false and were represented to be true by JM and Vijaya. [42] This contention of the Defendants does not hold water to negate the false misrepresentation made by JM and Vijaya regarding the Underlying Transaction. Forged documents do not necessarily need to implicate the Defendants [43] Now, it must be understood, from the pivotal issue elaborated earlier, that the implication against the Defendants is dependent upon on the legitimacy of business that Microvest and Liew allegedly have in justifying the movement of the monies from the facility into their account. At no point in time was it material that the Plaintiff needs to use the forged documents as proof to implicate the Defendants. The forged documents have steadfastly proven that the facts represented by JM and Vijaya were false and untrue. That is the extent necessary for the Plaintiff to use the forged documents as evidence. The Defendants have never disputed that these forged documents to be true. The Defendants never attempted to dispute the fraudulent misrepresentation on the Underlying Transaction which is proven to be untrue vide the forged documents. [44] It is very shocking that the Defendants candidly admit that there were forged documents involved and attempts to dispute the existence of a fraudulent misrepresentation. The mere definition of forged document is a false representation of false facts to be true. The documents are forged to falsely represent a false fact to be true. [45] At this juncture, it is obvious and undisputed that there was indeed a false misrepresentation of fact (the Underlying Transaction) by JM and Vijaya to which the Plaintiff had relied upon in granting the facility to JM. It is therefore this Court’s view that even from this initial tangent, there is an overwhelming and irrefutable proof that indeed there was a fraudulent misrepresentation by JM and Vijaya. [46] This Court is guided by the case of the classic case of Derry v Peek (1889) 14 App. Cas. 337 and also Halsbury’s Law of Malaysia, Vol 5 [2000]. Generally, the elements to prove a case of fraudulent misrepresentation are: (i) The existence of a false statement of fact and the Defendant is well aware of its falseness It is vividly clear that there was a false statement of fact (Underlying Transaction of the diesel supply deal with Petronas) which is a total sham. This falseness is very well within the awareness and knowledge of JM and Vijaya who had produced false forged documents asserting its business relations with PDB. (ii) The representation was made with the intention that it will be acted upon by the Plaintiff Indeed it is irrefutable that JM and Vijaya have misrepresented the false Underlying Transaction with the intention it would persuade the Plaintiff to grant JM the banking facility (iii) The Plaintiff in fact acted on the false statement Without a single iota of doubt, the LO was granted by the Plaintiff in view of this Underlying Transaction of diesel supply deal with Petronas. (iv) The Plaintiff suffered damages resulting from the said reliance It is undisputed that the banking facility granted under the LO was never paid for and was never refunded by any party and the Plaintiff indeed suffered damages from their reliance on JM and Vijaya’s false misrepresentations. [47] Clearly, all the elements requisite have been proven. The Judgment in Default against Vijaya and JM is an “incontestable proof of fraud” [48] The Federal Court recently has decided that a plaintiff need not prove an allegation of fraud against defendants who the plaintiff already has a JID against in a separate trial involving other defendants who opted to enter defence. Jeffry Tan FCJ decided in the case of Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ at paragraph 11 of his judgment that the Appellant in that case (involving the 5th and 6th Respondents) need not prove the fraud of the 1st to 4th Respondents who the Plaintiff was already granted JID against: “Given that alleged fraud passed wholly unanswered by the first to fourth respondents, the trial court at 43AR was wholly warranted to hold that with default judgment against the first to fourth respondents, fraud by them needed not to be proved by the appellants…With respect the judgment was the judicial decree that fraud by the first to fourth respondents had been made out…When judgment was entered against the first to fourth respondents, all allegations of fraud which gave rise to the cause of action merged in the judgment…Until set aside, the default judgment was the incontestable proof of fraud by the first to fourth respondents”(emphasis added) [49] Thus, by law, actually the Defendants in the present case are in no position to dispute the existence of fraud by JM and Vijaya. This Court is bound to follow this precedent from the Federal Court and from this juncture alone, there is no room at all for the Defendants to dispute the existence of fraud by JM and Vijaya. [50] Nevertheless, as discussed earlier, notwithstanding the absence of the Defendants’ standing to dispute the fraud by JM and Vijaya, it is blatantly clear that indeed there was a fraudulent misrepresentation of the Underlying Transaction. [51] The Defendants apparently have no reply to this contention in their submissions. Misrepresentation of the Plustrans’s FCA [52] This Court reiterates that the whole discourse on the representation of the Plustrans’s FCA is futile and does not at all put a dent to the finding of fraudulent misrepresentation against JM and Vijaya. This tranche of argument is totally irrelevant in supporting or disputing the fraudulent misrepresentation of the Underlying Transaction. The crediting of Plustrans FCA is merely the vessel in which JM and Vijaya have channelled the proceeds of the fraud into. [53] Thus, this Court does not intend to delve too deeply on this contention. It is verily more relevant for the Defendants to prove their legitimate reasons to participate in the proceeds of the fraud which was credited into Plustrans’s FCA. Negligence is not a defence to the fraud [54] In attempting to negate the fraud by JM and Vijaya, the Defendants contends that instead of an act motivated by the misrepresentation, the bank’s act in crediting the facility into Plustrans’s FCA resulted from the bank’s own negligence. [55] It is the Defendants’ line of argument that there was never a misrepresentation of Plustrans’s FCA and that it was known to Chandra that the account was Plustrans’s FCA before the Plaintiff decided to oblige to Vijaya’s instruction. [56] Nevertheless, even assuming the act was negligent (which this Court disagrees) the Court is not about to become the instrument of fraud. It is incomprehensible that the Defendants ought to urge the Court to legitimise the fraudulent misrepresentation of the Underlying Transaction merely on the basis that the Plaintiff was negligent in crediting the facilities in Plustrans’s account (which in the first place, is illegitimately conceived). Notwithstanding any sort of negligence or contributory negligence, it is beyond the Court’s primary duty to uphold justice that the Court would afford legitimacy of a fraudulent act, merely because of the fallible ground that the Plaintiff was in a sense, negligible in believing the fraudulent misrepresentation of Vijaya and JM. This is grossly inappropriate. Such contention is inconceivable to any farthest stretch of the legal imagination. The Court will never be a bridge or instrument to enable the operation of any fraud or deceit. And this is exactly what the Defendants sought to urge the Court to become. The facilities were from the beginning were ill-conceived from the granting of the LO itself. Anything else which entailed the ill-conceived facility is the ensuing mechanics of the fraud. However negligent the Plaintiff might be at the time the monies were credited into Plustrans’s FCA, the whole ordeal with regards to the Underlying Transaction was an illegitimate sham. It would be ridiculous to suggest that a Court of law should allow and legitimise the workings of a fraud merely because the victim of such fraud was negligent in his conduct. The negligence does not change the fact that the Plaintiff was a victim of a fraud. Thus, the Court shall staunchly remain to treat the fraudster as a fraudster, and the victim as a victim. [57] The Plaintiff has referred this Court to valuable guidance to the decision in the case of Bumiputra Commerce Bank Bhd v Siti Fatimah Mohd Zain [2011] 2 CLJ 545. The Court has correctly decided that: “With the evidence that was presented and even allowing for all the possible inferences to be made in her favour, it was my assessment that, at the very least, she knew of the mistake by the bank in making available the overdraft facility. Of course at the worst, she was complicit to the illicit plan to defraud the bank. In either case, she was certainly not acting in good faith. In fact, the evidence, as I have alluded to thus far, shows that, if not dishonesty, there was certainly an element of bad faith on her part. Her claims of fault on the part of the bank must be seen in this light. In any event, a consideration of fault or even negligence or carelessness on the part of the plaintiff bank, as the law suggests, is irrelevant. It was beyond doubt that the defendant had been enriched at the expense of the plaintiff bank. In the circumstances, it would be unconscionable and inequitable and therefore unjust to deny restitution to the plaintiff bank.” [58] As succinctly put by the Court in the above case, it would be unconscionable and inequitable as well as unjust to allow the enrichment of the Defendants from this fraud merely because the Plaintiff was negligent (which this Court also disagrees). [59] The Common Law jurisdiction also shares the same sentiment in the English Court of Appeal’s decision in the case of Standard Chartered Bank v Pakistan National Shipping Corporation and Others (No 4) [2001] QB 167: “But also, and importantly, it has always been the law that a defendant who has been found liable in deceit cannot establish a defence based upon the contributory negligence of the plaintiff” [60] Thus, it is this Court’s considered view that, from the outset, the Defendants’ defence of negligence shall fail. Was Chandra negligent in his conduct? [61] For the sake of completeness, this Court shall briefly allude to the submissions and evidences put forth regarding this contention. [62] The Defendants’ contention is that Chandra knew of the identity of the holder of the account which Vijaya instructed the Plaintiff to credit the facility into (which was Plustrans’s FCA). And upon that knowledge, the Defendants alleged that it was the Plaintiff’s own negligence that led to the Plaintiff’s act of crediting the facility in Plustrans’s FCA. [63] In contrast, the Plaintiff’s contention regarding Chandra’s conduct was that there were numerous factors and considerations that had led to the crediting of the facility even with knowledge that the account was Plustrans’s and not Petronas’s. [64] This Court is minded here at this juncture that the misrepresentation regarding Plustrans is not so much on the identity of the holder of the account number furnished by Vijaya in her instruction but rather the misrepresentation of the utility of Plustrans as the recipient of the facility rather than Petronas. Chandra has testified in his Witness Statement that he indeed, immediately called Maybank to ascertain the identity of the holder of the account number. Chandra was informed by Maybank that the holder of the account was Plustrans. Out of Chandran’s own diligence, he conducted a SSM Search on the same day and found that Plustrans indeed was a company which dealt with the distribution of Petroleum Product. Now, the misrepresentation here was that when queried by Chandra, Vijaya have assured that Plustrans is a dealer with Petronas and that ultimately and eventually that the sums from the facility will duly be transferred to Petronas. It is also part of Chandra’s testimony that shortly after the telephone conversation with Vijaya, Antonio had telephoned him and pressured him into disbursing the facility on the same day. Both Vijaya and Antonio have threatened that in case the facility was not disbursed on that day, the deal would be adversely affected and the Bank will be held responsible. [65] Basically, Chandra’s decision to credit the facility within the strict timeline set by Target was a well calculated decision given the following circumstances: (i) Vijaya had deceived Chandra that Plustrans was a dealer with Petronas and assured that the facility would ultimately be paid and transferred to Petronas; (ii) Chandra received confirmation from Maybank that Plustrans were dealers in Petroleum; (iii) Chandra conducted a SSM search which reveals that Plustrans is indeed involved in the distribution of petroleum products; (iv) Antonio as agent and representative of Target had instructed the Plaintiff to always follow the instructions by JM; and (v) Both Vijaya and Antonio have pressured and threatened the Chandra to comply with their instructions. Whether there was a real and legitimate threat or pressure against Chandra? [66] The Defendants’ contention regarding this issue was that the Plaintiff’s position is secure enough from the LO that the Plaintiff was never put to any risk liability should the dealing fall through. The Defendants submit that Viijaya and Target would never be in the position to sue the Plaintiff as their instructions (to credit the facility into the Plustrans FCA rather than a Petronas account) have contradicted the conditions precedent within the LO and thus, would already warrant the Plaintiff the right to recall the facilities under the LO which reads: “The Facilities are subject always to the Bank’s customary overriding right of suspension, withdrawal and repayment on demand. Other terms herein also apply which may allow the Bank to cease providing the Facilities to you.” [67] However, the Defendants should not selectively apply the LO without the full effect of all other terms within the LO. Equally so, the LO stipulates that the Plaintiff has the absolute discretion to waive the compliance with any of the conditions precedent. Thus, it is the Plaintiff’s case that merely accommodating to the mandate of their own customer who is a party to the LO, even contradicting the conditions precedent will not amount to a breach of the LO. Therefore, Vijaya’s and Antonio’s instructions do not tantamount to a breach of the LO. The LO reads: “The conditions precedent are for the sole benefit of the Bank, who may waive their compliance without prejudice to its rights herein or in any Security Document. [68] Therefore, there would be a legitimate pressure or threat faced by Chandra when he was persistently urged by Vijaya and Antonio to credit the facility into Plustrans’s FCA. The instruction and the waiver of the condition precedent is well within the boundaries of the LO and the Plaintiff bank would definitely run the risk of responsibility and liability if it fails to perform within the lines of the LO to set the Underlying Transaction in motion. Chandra was in a bind to oblige and Chandra was given numerous representations and assurances by Vijaya that the facility would ultimately be paid to Petronas. Whether Chandra was justified to abide by Antonio’s instruction? [69] The Defendants also contend that there was no legal reason for Chandra to have followed the instruction of Antonio or Vijaya as another condition precedent within the LO was that the payment of the facility must be instructed by JM and HSBC Brazil. [70] Firstly, again, the Plaintiff has the absolute discretion to waive any of the conditions precedent. The Plaintiff may opt to waive that condition without any questions asked. [71] Secondly, from the line of correspondences regarding the Underlying Transaction, it is apparent that Target is the core key to the deal and that even HSBC Brazil was working upon the instruction of Target. Target is so essential to the deal that they have furnished the security for HSBC Brazil to issue the SBLC for the facility to be granted. [72] In fact the SWIFT message by HSBC Brazil dated 29.4.2008 even admitted that they were working under the instruction and authorisation of Target. The message reads: “…WE ARE HEREBY INFORMING THAT WE RECEIVED TARGET’S AUTHORIZATION FOR THE CREDIT OF USD 4,550,000.00…” [73] From the conduct of the parties in the Underlying Transaction, it is verily apparent that Target was considered to be the authority in the dealing. In fact Target was so authoritative that HSBC Brazil took instructions and authorisations from Target. [74] Thus, on the two foregoing grounds, this Court is of the view that it is justifiable that Chandra would consider Antonio’s persistent instruction leading up to the crediting of the facility into Plustrans. [75] This Court finds guidance in the Federal Court’s decision in Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2006] 3 CLJ 1 referred to by the Plaintiff which held: “Further, a bank is supposed to treat the customer’s mandate at its face value, save in extreme cases. A bank is not obliged to question any transaction which is in accordance with the customer’s mandate, unless there are grounds for believing that these was a misuse of authority for the purpose of committing a fraud.” [76] Chandra had no reason to suspect fraud and had acted in good faith in ensuring that the deal did not fall through. He was instructed by a relevant party, in fact an authoritative party in the dealings and was even assured that the facility would ultimately be paid to Petronas as per the LO by a party of the LO. [77] For the same reason this Court is inclined to agree with the Plaintiff that it would be inappropriate for this Court to approach this issue with the benefit of hindsight. The Plaintiff referred to Justice Megarry’s observation in Duchess of Argyll v Beuselinck [1072] 2 Lloyd’s Rep 172: “In this world there are few things that could not have been better done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence”(emphasis added) [78] Therefore, it is this Court’s considered view that Chandra had not acted negligently considering the circumstances revolving the issue at the time. It is also this Court’s considered view that indeed, even in this tangent on misrepresentation regarding Plustrans, there was indeed a fraudulent misrepresentation. Issue (ii): Whether There Was Legitimate Diesel Supply Transaction To Justify The Transfer Of USD4 Million (From The Facilities Granted Under The LO) From Plustrans’s FCA To Microvest? Issue (iv): Whether Microvest can be implicated to be co-conspirators to the fraudulent act? Issue (ii) and (iv) shall be dealt together. [79] It is reiterated that the Court has already found that there was indeed fraud which led to the granting of facility and crediting of the same facility into Plustrans’s FCA. [80] Now, without any doubt and in fact it was undisputed that the monies which were transacted to the defendants were isolated transactions involving the monies exclusively from the facility granted under the LO. The monies in Microvest’s FCA was exclusively the monies from the facility transacted from Plustrans FCA which also only contains only the monies credited from the LO. [81] It is without doubt that Microvest and Liew had participated in the proceeds of the fraud brought forth by Vijaya and JM. If and unless the Defendants could not justify their participation in the monies (ie Microvest’s legitimate business with Plustrans and Liew’s legitimate business with Microvest) then the Court rightfully ought to infer that the Defendants indeed were complicit and are co-conspirators to the fraud. The Court may decide based on inferences without having to rely on direct evidences [82] Preliminarily, this Court intends to address the Defendants’ contention on the lack of direct evidences to implicate the Defendants to the fraud and that the Court ought not to decide on the conspiracy to the fraud based on suspicion or conjectures. The Defendants have submitted numerous authorities to support this contention. (See: i.Diljit Kaur a/p Puran Singh v Majlis Peguam Malaysia [2015] 7 MLJ 695, ii. Satis Chandra Chatterji v Satish Kantha AIR 1923 PC 73,iii.ALN Narayanan Chettyar & Anor v Official Assignee High Court Rangoon AIR 1941 PC 93,iv.Hansraj Gupta & Ors v Dehra Dun Mussoorie Electric Tramway Co Ltd) [83] Now, this Court is minded of the above legal position. Indeed a decision on fraud should not be based on mere suspicion and conjecture. [84] However, what this Court does not agree with is the contention that the mere lack of direct evidence or documents would automatically denote an allegation and/or a finding of fraud merely based on mere suspicion or conjecture. [85] This is not the position of law advocated in the above authorities. In fact, there is no law that stipulates that a finding of fraud without direct evidences is a finding based on mere suspicion or conjecture. This is entirely incorrect. [86] The Plaintiff, instead have given valuable guidance to this Court with regards to the analysis of an allegation of fraud in absence of direct evidences. [87] Firstly on the same authority referred by the Defendants, the Plaintiff has revealed the actual decidendi of the Privy Council in Satis Chandra’s case. It seems that the Defendants have intentionally omitted the full decision of the Privy Council when alluding to the case. Such reckless elaboration on the decision is utterly misleading. The Privy Council actually held: “Charges of fraud and collusion…must, no doubt, be proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely found against him. If this were not so, many a clever and dexterous knave would escaped”(emphasis added) [88] It is apparent from the above that it is indeed within the Court’s authority to make a finding of fraud without any direct evidence so long as it is an inference legitimately drawn based on the facts of the case. [89] The Plaintiff’s contention is further supported by the Court of Appeal’s decision in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & Other appeals [1995] 2 MLJ 493. Gopal Sri Ram JCA (as he then was) had held: “Conspiracy is a tort that is not always capable of proof by direct evidence. Like so many other facts, an agreement to do an unlawful act by unlawful means may be established by evidence of circumstances from which such an agreement may be inferred. It is axiomatic that there must be proof and not mere conjecture. In the present case there was sufficient evidence which conspiracy could be propery inferred.” (emphasis added) [90] See also the English Court of Appeal decision in the case of Dadourian Group International Inc and other v Simms and other [2009] All ER (D) 175 (Mar): “Mr Cakebread appeared to be equating proper inferences with conjecture and assumption. At times he came close to suggesting that fraud can only be established where there is direct evidence. If that were the case, few allegations of fraud would ever come to trial. Fraudsters rarely sit down and reduce their dishonest agreement to writing. Frauds are commonly proved on the basis of inviting the fact-finder to draw proper inferences from the primary facts. That is exactly what the judge did here.” (emphasis added) [91] It is also proper for the Court to draw inferences from the conduct of the parties. This is echoed in Bullen & Leake’s Precedents on Pleadings (16th Edition) which the author wrote: “It is not necessary to show that there was anything in the nature of an express agreement, whether formal or informal. The court looks at the overt acts of the conspiracy and infers from those acts that there agreement to further the common object of the combination. It is sufficient that two or more persons combine with the necessary intention or that they deliberately co-operate, albeit tacitly, to achieve the common end. (Emphasis added) [92] No cunning fraudster would ever find it necessary to leave a paper trail of their fraud or conspiracy to defraud. The law in proving fraud does not require such hard documentary evidence. Suffice that it is inferred by compelling circumstances. And the court is drawing such inference from all these circumstances. These are no mere suspicions. They are calculated inferences substantiated by close scrutiny and analysis of the given circumstances of the case. This Court is at liberty and at law to draw such inferences from such circumstances. The Plaintiff has the rights and standing to dispute the transactions between Microvest, Plustrans and Draconis [93] Preliminarily, the Defendants submit that the Plaintiff is not privy to the dealings between Microvest and Plustrans, thus is in no position to dispute the facts of the dealings. This Court totally disagrees with this contention. [94] The Plaintiff here is a victim of fraud. And it is trite law that a victim of fraud has the rights in equity to follow and trace the monies he had lost. The Court draws valuable guidance from Lord Denning’s insightful decision in Bankers Trust Co v Shapira and Ors [1980] 3 All ER 353: “The Plaintiff, who has been defrauded, has a right in equity to follow the money” [95] Thus, the Plaintiff is in the position to scrutinize the dealings Plustrans had with Microvest as Microvest has undoubtedly received and participated in the proceeds of JM and Vijaya’s fraud. Elements to prove the tort of conspiracy [96] The elements to prove conspiracy are namely: (i) an agreement between two or more persons; (ii) an agreement to injure the Plaintiff (iii) acts done in execution of the agreement resulted in damage to the Plaintiff (See Yap JH v Tan Sri Loh Boon Siew & Ors [1991] 3 CLJ 2960) [97] Evident from the earlier discussion above, there is no necessity for the Plaintiff to prove that there was ever a written agreement between Microvest and the other fraudsters to be complicit in the fraud. [98] This agreement can be inferred by the Court from the circumstances surrounding the case. The circumstances are compelling that indeed Microvest has concerted in the fraud in that they are recipients and participants of the proceeds from JM and Vijaya’s fraud. There are a multitude of facts and circumstances which the Court has considered in reaching to such calculated inference. Namely, the circumstances are that: (a) The movement of funds are isolated transactions which clearly involves exclusively the proceeds from the illegitimate procurement of the facility under the LO. (b) Microvest’s and Plustrans’s FCA would have a nil balance if not for the crediting of the facility granted under the LO (c) The only monies in Microvest’s and Plustrans’s FCA were the proceeds from JM and Vijaya’s fraud. (d) Microvest’s and Plustrans’s FCA have a nil balance immediately before the proceeds of the fraud was transacted into their accounts. (e) It is too much of a coincidence that both Microvest and Plustrans have only set up their FCAs very shortly before the facility was granted. Plustrans set up their FCA just 10 days before the crediting of the facility. Microvest set up their FCA on 12.3.2008 which is only slightly more than a month before the crediting of the facility. (f) A large majority of the proceeds (USD4 million out of USD4.55 million credited) from the fraud credited to Plustrans on 30.4.2008 was transferred to Microvest’s empty FCA account only 5 days after the crediting of the facility which is on 5.5.2008. (g) Ultimately, the Defendants have completely failed to prove any legitimate business and in fact have misled this Court with incoherent documents, testimonies. Thus, the Defendants does not have any justification to legitimise their participation and receipt of the proceeds of the fraud. [99] All these aggressive and extremely quick movements of the proceeds from the fraud are very telling of a “layering” exercise to dissipate and distribute the proceeds to multiple layers of recipients in an effort to render the proceeds untraceable as it would be mixed with other funds in other accounts. [100] Now, against these compelling facts above, Microvest’s main contention against the implication of conspiracy (in their participation of the proceeds of the fraud) is that Microvest had legitimate business with Plustrans which justifies the receipt of the USD4 million by Microvest. [101] Now, this alleged legitimate business is that Plustrans has contracted with Microvest for the supply of diesel worth a whopping USD 7.25 million (RM23,000,000.00). If this shall be the case, then allegedly Microvest merely coincidentally was paid for their business by Plustrans using the proceeds of the fraud. Microvest also sought to prove the availability of diesel vide the alleged diesel supply between Draconis, an agent company based in the Bahamas, and Microvest. Draconis was submitted to be an agent who gets supply of diesel from undisclosed owners. Total lack of documentary evidence to prove Microvest’s alleged business with Plustrans and Draconis [102] However, this particular legitimate business cannot, in the view of this Court be farther from the truth. In the effort to prove this supposed legitimate business, for an utterly massive amount of RM 23,000,000.00 all that Microvest has produced were two invoices and delivery orders. (See tabs 34 and 35 of the PCBD) [103] And in its fallible attempt to prove the legitimacy of Microvest’s business with Draconis, the Defendants merely produced two invoices in which these two invoices does not even have any corresponding documents to prove any order or communication of such order for diesel supply from Microvest to Draconis. [104] Apart from these invoices and delivery orders there was nothing else to prove any sort of confirmation of delivery, proof of logistics, acknowledgment of receipt or even any agreement of any sort to prove the diesel supply deal worth a whopping RM23,000,000.00. [105] Albeit that the Defendants submit that the reason for the total absence of all other supporting documents was that the deal was done vide an Off-Port Limits arrangement (“OPL”), this Court finds it far too remarkable to believe that a deal of that magnitude can be proven merely on these 2 invoices and Delivery Orders which proves virtually nothing. There was a total absence of evidence of logistics of the said diesel supply from Microvest to Plustrans and from Draconis to Microvest [106] Even within the submission of the Defendants they have admitted that even an OPL setting would require a vessel or marine logistics to carry the consignment to the designated location in the international waters. The Defendants could not even produce any evidence of these logistics. The Defendants could not even provide the Court with the name of the vessel, the crew, or even the captain of the vessel involved in transporting these alleged massive consignments of diesel. [107] It is utterly unbelievable that despite the massive alleged monies transacted for the supply of diesel, that the Defendant was unable to provide other details besides the two invoices. If indeed there was this sale and delivery, there must have been a vessel involved. It was said that it was delivered in the international waters. It is beyond logic and common sense that this assertion can hold water if the Defendants cannot even provide details and evidence to the vessel, and/or crew which were involved in the alleged delivery and logistics. Liew in his evidence on Microvest’s alleged dealing with Plustrans is blatantly candid in his admission that there are no logistical evidence of delivery between Plustrans and Microvest and Microvest and Draconis. (See page 482 of the Notes of Evidence Volume 2): “BJD: Neither is there any logistical evidence of delivery, both ways right? DW1: You mean shipping document? BJD: Yes. DW: Nope. BJD: And we are talking about a RM 23 million transaction right? DW1: That is true” [108] It is even more perplexing that the Defendants contradict themselves regarding the authenticity of the business dealings. In one breath, the Defendants submit that the location of OPL transaction should remain a secret. But in another breath, Liew himself admitted that a genuine businessman would be transparent on the place of delivery. (See page 484 of the Notes of Evidence Volume 2): “BJD: I put it to you that any genuine businessman would be transparent on the place of the delivery of their transaction. Do you not agree? DW1: I agree.” [109] Upon this admission, even Liew himself could not be seen as a genuine businessman as he is verily not transparent on the place of delivery. More so considering the Defendants cannot even confirm and furnish the Court details on the name of the vessel involved, the captain, the crew, the terms of shipment, date of shipment and many other relevant shipping documents. These were all admitted to be non-existent by Liew himself. [110] It was the Defendants’ submission and in a surprising reference to Wikipedia (which is not even close to a verified and credible authority on marine trade) that the transfer of oil is conducted vide a Ship to Ship transfer (“STS”). Therein which, it goes without a doubt that the OPL transaction would involve not just one but a minimum number of two vessels. The Defendants were unable to even confirm, prove and furnish the Court with any name of the vessels involved in the transaction. There were no credible authorities forwarded by the Defendants that these OPL transactions should be carried out in secrecy. In fact, as will be discussed below, even Liew has contradicted himself on this assertion of secrecy. Contradiction on the secrecy of the OPL transaction Location [111] It is Liew’s testimony that the reason the Defendants are unable to furnish the Court on the location of the OPL transactions involving Plustrans and Draconis, is that the location should remain a secret owing to the fact that they were OPL transactions. [112] Nevertheless, Liew’s own documentary evidence directly contradicts this assertion of secrecy. In a different OPL transaction at page 90 of Bundle B, Liew found no restraints whatsoever to disclose to the Court a plethora of information inclusive of the name of the vessel (Tuah Sari), the location of the terminal “Eastern OPL Singapore” (see page 97 of Bundle B), the appointed oil tester, SGS Testing & Control Services Singapore Pte Ltd (“SGS”) and even the date of arrival of the vessel being 12.11.2006. [113] It is blatantly apparent here that these details on the OPL transaction is not even close to being a secret. The Court is minded that these information above, were either concealed or failed to be furnished by the Defendants with regard to Microvest’s deal with Plustrans and Draconis. It is far too unbelievable that Microvest won’t insist on separate acknowledgment of receipt for each delivery of diesel [114] It is a given that for any delivery of whatever consignment, especially transportation by sea, that the seller would require any form of proof acknowledged by the buyer that they have duly received the consignment delivered. Any reasonable and prudent businessman would insist on such acknowledgment. This acknowledgment is proof that the goods were delivered and therefore, forms the sole basis that the buyer now is required by law to pay the seller. [115] Now, apart from the two invoices and delivery orders, it is the testimony of Liew that the delivery of the diesel took about 6 weeks and spans between 15 to 18 deliveries. [116] Firstly, it is amazingly shocking that for a diesel supply deal involving RM23,000,000.00 that Liew could not even exactly recall the total numbers of delivery made to Plustrans. [117] Secondly, it is utterly peculiar that the Defendants did not insist on any sort of acknowledgment of delivery or receipt from Plustrans for each and every single delivery made. [118] Any prudent businessman would not have conducted his business in such manner. Any prudent businessman would not risk losing proof of delivery so as to protect his rights to claim for monies due from the deliveries. [119] It is even more remarkable that Liew as a businessman asserts that it is “quite alright” to chase for payments without evidence of delivery. This ridiculous admission by Liew seriously gnaws on the veracity and credibility of his testimony. During the cross-examination, Liew stated: BJD: I would have expected you to obtain from Plustrans an acknowledgment of the alleged delivery of the 15 to 18 batches of diesel on each delivery? DW1: I trusted them BJD: And what happens if they don’t sign the delivery order on the 5th of May and 27th of May 2008? What would you do? DW1: I would chase for payment/ BJD: Without any evidence? DW1: That is quite alright with me” Failure of the Defendants to produce the alleged notebook which Liew allegedly records all deliveries made [120] Along the line of Liew’s testimony, Liew stated that he had unilaterally recorded all the deliveries made to Plustrans or Microvest. He had strongly admitted that the written notebook was in his possession during cross-examination. (See page 488 of the Notes of Evidence Volume 2) [121] Despite this assertion, this alleged written notebook in his possession was never produced in Court. This Court immensely questions the credibility of Liew’s testimony at this juncture. The rhetoric is overwhelming and simple. If indeed Liew had in his possession this written notebook, tabulating all the deliveries made to Plustrans by Microvest, why has he never produced it into court? Clearly here that Liew was utterly hesitant to substantiate his assertion. In fact he was unable to substantiate his assertion. This is by no means a mere suspicion. It is a fair and obvious inference on Liew’s failure and/or reluctance to produce the written notebook into Court. Microvest’s ridiculous business setting with Draconis in not identifying the actual owners of the diesel [122] Liew in his testimony during cross-examination has stated that Draconis is a mere agent in which they are not the owners of the diesel. It is his evidence that Draconis as an agent is merely a third party to the deal between Microvest and these ‘undisclosed owners’. [123] It is incredulous, that any businessman would pay a third party agent for the supply of diesel in which that agent does not disclose his sources or the actual owners who supply the diesel. [124] If this is the business setting, how could Microvest as a prudent purchaser verify if Draconis indeed has the capability to supply such diesel consignments? What businessman would put their business through such unnecessary risk of dealing with a supplier who cannot verify and prove their capability to supply? Especially for a supply deal which runs into multi-million USD amount. [125] This again, adds to the propriety of this Court’s inference that there was no legitimate business to justify the Defendants’ participation in the proceeds from the fraud. The payment term of Cash on Delivery (“COD”) is horrendously improbable [126] It is the evidence and submission of the Defendants that the payment term for the shipment of the whopping RM23,000,000.00 worth of diesel is on COD. This Court is immensely moved to question and infer the total unreasonableness of this contention. Owing to the alleged transaction vide an OPL setting, it is also the evidence of the Defendants that even the supply deal with Draconis is conducted on COD term. [127] It is intensely shocking how a business would be conducted so lackadaisically and so loosely in the face of a massive amount of money involved. We have earlier discussed that Microvest never insisted the issuance of any acknowledgment of receipt from Plustrans. Now, adding to the bafflement, Microvest would even run a high risk of being an unsecured creditor without a single form of guarantee of payment by its buyers. This does not at all denote a genuine and sensible business. [128] Notwithstanding the assertion that Liew was convinced and trusted Plustrans’s capability to pay based on an alleged USD20 million that Plustrans received from Global Benchmark or that Plustrans had a Maybank facility of USD10 million, any reasonable businessman would understand that mere proof of monies held does not necessarily dictate that these monies were definitely going to be used to pay any particular debts (especially considering that these debts with Plustrans are without proof of receipt and delivery). Evidently enough, Plustrans did default on a large portion of the payment and was admitted by Liew that Plustrans had a cash flow problem. Logic and common sense would have it that even at the face of these incoming monies, the least the Defendants could have insisted is a form of guarantee for the payment and not merely conduct the business on an enormously risky COD term. Proof of Availability of Global Benchmark’s monies is incoherent with the Defendants’ testimony (i) Furthermore, it adds to the inference that the Defendants’ story is an utter façade of a tall fabricated tale when the supposed proof availability of monies to Plustrans vide Global Benchmark’s payment is dated at least 6 years after the LO was granted. The Defendants’ proof of Global Benchmark’s monies is at Page 122 of Bundle B. This is a fax copy of the alleged telegraphic transfer of USD20 million from Global Benchmark to Plustrans. (ii) However, as correctly pointed out by the Plaintiff, it is verily peculiar that the date of the faxing is recorded at the top left of the document as: “03/ 10 2015 17: 41 FAX” (iii) This case has not even passed the month of July of 2015. This seriously goes against the credibility the assertion of Liew’s reliance on the Global Benchmark’s monies in putting total trust into Plustrans. As it stands, there is no documentary proof that this telegraphic transfer was made aware to the Defendants before engaging into business with Plustrans in 2008. This odd discrepancy also invites the Court’s scrutiny on the authenticity of this facsimile. Total absence evidence of reasonably prompt and timely demands upon Plustrans’s default in May 2008 [129] At this juncture, it is important to note that it is admitted that allegedly Plustrans has defaulted approximately a remainder sum of USD 3.25 million from the alleged diesel supply deal with Microvest around May 2008. It is the testimony of Liew that immediately upon this default, Microvest had chased for the remainder payment in four separate demands dated 10.6.2008, 17.6.2008, 20.6.2008 and 6.4.2011. [130] The first three demands in 2008, in this Court’s view are thoroughly unsubstantiated. Although the Defendants have tendered the alleged demands in pages 4 to 6 of Common Bundle of Documents Volume 7, these documents by no means have any proof of posting or faxing or receipt by Plustrans. These were merely demands on paper signed by Liew himself. [131] It is odd that the Defendants were able to provide the facsimile transmission verification report for their demand vide their solicitors in the year 2011 (see page 15 of Common Bundle of Documents Volume 7) but not a single proof of posting or successful faxing of the first three alleged demands in the year 2008. [132] Firstly, the Court is moved to infer the dishonesty and falseness of the Defendants’ assertion on the immediate three demands in 2008 due to the fact that in contrast to the availability of the 2011 demand proof of delivery, (knowing that they should produce proof of delivery) the Defendants were unable to furnish proof of delivery for the three demands in 2008. [133] Secondly, it still stands now that the Defendants have no proof to substantiate their assertion on timely demands against Plustrans. Thus, it is very peculiar and unreasonable, that the Defendants would only lackadaisically see it fit to instruct their solicitors to demand for the payment of USD3.25 million 3 years after the default. It is does not make sense that the Defendants only see it fit to issue such demand only after this action has commenced 3 years after the default. Any trader who was persuaded to give their total trust would have pursued the remainder payment promptly and aggressively. It is wholly preposterous that the oil testing for the USD7.25 million deal is conducted based on ‘smell and touch’ [134] Liew during cross-examination has candidly admitted that he is able to ‘see and touch’ the quality, viscosity and content of the diesel in order to ascertain the quality and quantity of the diesel to be of proper make (see page 492 of the Notes of Evidence Volume 2). Even when he buys the massive amount of diesel from Draconis, Liew is able to determine the quality and quantity of thousands of tonnes of Diesel by ‘seeing and touching’. “BJD: Now, ordinarily when a diesel of large commercial value is delivered you would appoint an oil tester to determine the quality and quantity, right? DW1: Only at the request of the client BJD: No, when you are purchasing it? DW1: When I purchase, usually I don’t BJD: You don’t? You don’t as well? DW1: I don’t. Because I am able to see and touch it myself. There are other ways to see the quality if the oil besides using a SGS.” [135] To begin to deal with the total ludicrousness of this supposed ‘expertise’ to see and touch diesel, this Court reiterates that this supply deal involves diesel in thousands of tonnes worth USD 7.25 million. [136] Liew is not giving evidence as an expert. He is not even an authority in quantification and quality assessment and analysis of diesel. There were no other authorities afforded by the Defendants to prove that it is possible that a human being or even a group of human beings are able to qualify and quantify thousands of tonnes of diesel by merely seeing and touching the consignments. [137] It is a given that in dealings of diesel and/or its products traders would require specific qualities and specifications for the diesel. The quality of diesel varies and it varies from its viscosity, content, and compound. Traders then would even usually stipulate the allowable margin of non-confirmity to consider the delivery is of good quality and proper quantity. Assuming that in one delivery, there would be 800 metric tonnes of diesel to assess, how is it humanly possible that Liew as an individual human being can ascertain the quality, viscosity, content and compound of all the 800 metric tonnes of diesel of that single delivery? This rhetoric is verily compelling and it is utterly telling that Liew’s assertion on his skills and expertise to assess diesel quantity and quality by see and touch, is a total façade. [138] No prudent and reasonable businessman would risk the non-conformity of diesel supplied either in its quality and/or quantity by merely assessing the diesel vide touching and seeing. This assertion goes beyond logic and common sense. Total absence of Written Agreements in Microvest’s deal with Plustrans and Draconis [139] The Defendants submits that owing to the fact that the delivery was conducted through an OPL transaction, it is justifiable that the Defendants do not have any written agreement with Plustrans and Draconis. It is Liew’s testimony that every arrangement is discussed via telephone. [140] At a multitude of levels, the Court finds this assertion to be totally unbelievable. (i) The diesel involved is worth a whopping USD 7.25 million and spans over an alleged 15 to 18 deliveries. It is far too remarkable that any of the Parties see it fit to put the terms of the supply in writing considering the voluminous number of delivery and amount of money involved. (ii) Against the Defendants’ own contention that the supply is conducted on international waters via STS, it would make more sense that the Parties would draw out a single mutual agreement as to the date, the shipping terms, the vessel and crew involved, the location of the delivery in one singe agreement. Furthermore considering the fact that Draconis is a company based in Bahamas, it would be ridiculous to believe that all these terms would be discussed through the telephone considering the time difference between Malaysia and the Bahamas. It would make more business sense for the Parties to mutually agree to one written agreement clearly stipulating the details and terms of the shipment. (iii) A written agreement would be more reasonably fitting to provide security and certainty to the Parties to its rights and obligations considering the amount involved is massive (USD 7.25 million) and that the delivery would be made in multiple consignments over a certain period of time. No reasonable businessman would run the risk of not having their rights and obligations properly defined and substantiated especially when they risk to lose millions of dollars. Incoherent date of the Microvest’s email to prove their business with Plustrans. [141] This is another telling crack to Liew’s prolific concoction of false facts in his tall fabricated tale. [142] It is already admitted by the Defendants themselves that Plustrans has already made the transfer of USD4 million from Plustrans’s FCA on 5.5.2008. Now, one of the other evidences the Defendants sought to use to substantiate this facade is a purported email from Plustrans to Maybank dated 3.6.2008 to effect payment for the supply of diesel from Microvest to Plustrans. (See page 191 of Common Bundle of Documents Volume 2) [143] The timeline does not at all fit the story that Liew is telling. There is no reason at all for the Court to believe that this email is evidence of the business Microvest has with Plustrans because the payment referred to in the email would definitely not have referred to the delivery Microvest performed to Plustrans as the monies for that delivery have already been paid 3 weeks ago before that email was allegedly sent. In fact it goes exactly the opposite way. This discrepancy further discredits the testimony of Liew and the Defendants’ case as a whole. [144] Scrutinising the email from Plustrans’s Captain Fuad, the date could not have been a typo error. It is not a date that was typed in by the sender. It is the date at the header of the email (in this case Gmail) which is electronically ascribed by the email service provider which is connected to the internet. The date is not dependent on the time and date settings of the computer at all. There is in no way possible that the date was a typo error. It is utterly clear now that this is another rouse concocted by Liew to tailor up his bogus case. The invoices and delivery orders are not conclusive evidence of business relations [145] It is the Defendants’ submission that the invoices and delivery orders, being signed by Plustrans are conclusive evidences under Section 91 of the Evidence Act 1950. [146] However as stated above, the Court shall never be an instrument of fraud. The Court has discussed at length earlier that there is no proof of a genuine business to justify Microvest’s participation in the proceeds of the fraud. This Court is in total disbelief all these invoices and delivery orders. Thus, the Court looks to the trite maxim of “Fraud unravels all” and shall look beyond these documents and see the true nature of the fraud. [147] Suffice that this Court draws reliance to the Court of Appeal decision in Seri Kelangkota Rakan Engineering JV Sdn Bhd & Ors v Arab-Malaysian Prima Realty Sdn Bhd [2001] 1 MLJ in which Gopal Sri Ram JCA (as he then was) explained: “Parties to a transaction may disguise its true nature and purport by whatever means available to them. Yet, the court will tear away the disguise and reveal to the world at large the true arrangement arrived at between the parties. It is important for reasons of public policy that the court seised of this power. Were it not so, the law would be lending its aid to enforce pretended and not real obligations.”(Emphasis added) [148] And in the present case, this Court does not intend at all to lend an aid to the façade brought forth by the Defendants in colluding with the fraud. Thus, the invoices and delivery orders are definitely not conclusive evidence of Microvest’s business with Plustrans and Draconis. Court’s Finding on Microvest’s Legitimacy of Business with Plustrans and Draconis [149] This Court before making its finding intends to categorically recap and list down all the factors considered earlier in reaching its conclusion: (a) Total lack of documentary evidence to prove Microvest’s alleged business with Plustrans and Draconis (b) There was total absence of evidence of logistics of the said diesel supply from Microvest to Plustrans and from Draconis to Microvest (c) Contradiction on the secrecy of the OPL transaction Location. (d) It is far too unbelievable that Microvest would not insist on separate acknowledgment of receipt for each delivery of diesel (e) Failure of the Defendants to produce the alleged notebook which Liew allegedly records all deliveries made (f) Microvest’s ridiculous business setting with Draconis in not identifying the actual owners of the diesel (g) The payment term of Cash on Delivery (“COD”) is horrendously improbable (h) Proof of Availability of Global Benchmark’s monies is incoherent with the Defendants’ testimony (i) Total absence evidence of reasonably prompt and timely demands upon Plustrans’s default in May 2008 (j) It is wholly preposterous that the oil testing for the USD7.25 million deal is conducted based on ‘smell and touch’ (k) Total absence of Written Agreements in Microvest’s deal with Plustrans and Draconis (l) Incoherent date of the Microvest’s email to prove their business with Plustrans. (m) The invoices and delivery orders are not conclusive evidence of business relations [150] In view of the numerous consideration above, it is therefore this Court’s considered view and calculated inference that indeed there was NO legitimate business whatsoever between Plustrans and Microvest and Draconis to justify Microvest’s participation and receipt into the proceeds of the fraud. Court’s finding on Microvest’s involvement in the fraud [151] In view of all the discussion above, it is this Court’s considered view that indeed Microvest is a conspirator to the fraud and is liable to the tort of conspiracy. [152] There were sound evidences of Microvest misleading the Court with incoherent and incredulous assertions which goes beyond logic and common sense. It is thoroughly clear that all the documents and assertions put forth were a façade to put the concerted effort (to layer the proceeds from the fraud) underneath the cloak of a legitimate business deal (which is entirely untrue). Microvest is in no way near of any justification of receiving the proceeds from the fraud and in fact has instead proven that Microvest has put an attempt to mislead the Court with the notion of a legitimate business with Plustrans and Draconis. [153] Thus, it is this Court’s considered view and inference that there was indeed an agreement between the fraudsters and Microvest as a conspirator to conduct an exercise of layering to render the proceeds of the fraud untraceable. This is indeed an agreement to injure the Plaintiff and in execution of this agreement, the Plaintiff indeed has suffered damages. All the elements to prove the tort of conspiracy has been proven. [154] Furthermore, upon all of the incoherent, inconsistent and false evidences and assertions of Liew as witness, it is also the finding of this Court that Liew is indeed an untrustworthy witness. Entailing that finding, the entire tale told by Liew regarding Microvest is undoubtedly improbable. [155] This Court is guided by the principle propounded in numerous cases which state that in evaluating evidence, the Court shall have regard to the probability or improbability of the versions presented by the parties, whether the oral evidence of the witnesses are supported by documentary evidence and the conduct and credibility of the parties. (See Dato’ Seri Anwar Ibrahim v PP & anor Appeal [2015] 2 MLJ 293 at para. 49; Tindok Besar Estate Sdn Bhd v Tinjar Co. [1979] 2 MLJ 229) [156] The Court finds that the version presented by Liew is utterly improbable and the oral testimony of Liew is totally unsupported by any documentary evidence. Issue (iii): Whether There Was Legitimate Reason For Microvest To Transfer Of USD3 Million (From The Facilities Granted Under The LO) From Microvest’s FCA To Liew? Issue (v): Whether Liew can be implicated to be co-conspirators to the fraudulent act? Issue (iii) and (v) shall be dealt together. [157] It is reiterated here that Microvest has been found earlier to be complicit in the fraud. [158] It is also undisputed that the proceeds of the fraud had first been layered into Microvest’s account and subsequently was transferred to Liew’s Personal account. Similarly, the hypothesis is that if and unless Liew could prove a legitimate reason to justify his participation in the proceeds of the fraud, then it is safe for the Court to infer that even Liew has colluded in the exercise of layering the proceeds of the fraud in an attempt to render the proceeds of the fraud untraceable. It is already unsurprising at this point, that this Court is minded that Liew being the false witness that he is, has come up to give three separate, different and contradicting justifications on the alleged legitimate reason that would justify Liew’s receipt and participation in the proceeds of the fraud. Liew’s blatant inconsistencies in justifying the receipt of the proceeds from the fraud [159] At this juncture, Liew as expected, had drew three breaths, and with each breath exhaled three different justifications for his participation in the proceeds from the fraud. All three are utterly different from the other. It is already telling here that Liew himself is unsure and in fact misleading the Court with his so-called justifications. These false justifications are namely that: (i) The receipt of the proceeds of the fraud is to pay a “hutang”(debt) (ii) The receipt of the proceeds of the fraud is to pay Draconis for an alleged supply of diesel (iii) The receipt of the proceeds of the fraud is to obtain overdraft facility from the bank for Microvest [160] Now, the first two justifications were brought upon by Liew in his statements to Inspector Shakir during the criminal investigation in the criminal trial in the Melaka Sessions Court. Inspector Shakir has testified during cross-examination in the present case that indeed Liew had given two separate and different justifications for his participation in the proceeds of the fraud. (see Notes of Evidence, Tab 37 of the PCBD) [161] It is also important to note that Inspector Shakir has also testified that Liew has never come clean and forwarded any of the invoices or delivery orders to substantiate his justification (see page 557 of the Notes of Evidence Volume 2): “DW5: Yang Arif, as I have stated earlier my line of investigation is we investigated on the company of Plustrans, that means dealing with the complainant with Ms Vijaya that time with Plustrans Court: Your basis of investigation is a transaction between Jejak Maju and Plustrans? DW5: Jejak Maju and Plustrans Court: That ‘s your basis? DW5: Yes that is basis. DW5: So where did they get the supply for oil, as claim from Plustrans they get from Microvest Court: But you have not actually investigate whether, because the delivery order was not before you? DW5: Yes” Court: The invoices not before you? DW5: Yes” [162] Based on the foregoing facts, testimonies and evidences, the following is the Court’s inferences with regards to Liews inconsistent Justifications: (i) It is already telling that Liew is untrustworthy as he himself was very hesitant in statements to the police to come clean and fully furnish the details of the ‘hutang’. This hesitance to describe the hutang in his first statement to the Police is an alarming proof that Liew is merely concocting tales to absolve himself from any criminal or civil liability. The receipt of the proceeds of the fraud is the core basis of the charge. Rhetorically speaking, if indeed the monies were transacted for him to pay a supply of diesel, why would Liew hesitated to inform as such and furnish all the relevant invoices and delivery orders to substantiate his supposed innocence? The Court notes the inconsistency of Liew’s justification and description over the USD4mil which was paid to him by Microvest. Bearing in mind that it involves a massive sum of monies, it begs the Court’s scrutiny on the reason behind Liew’s initial hesitation to describe the purpose of the payment of usd4mil in his initial statement. Liew is well aware that this transaction is the core of the investigation against him. The court could not understand why did Liew did not find it appropriate or hesitated to give a full description rather than just saying it is for “hutang” in the first place? This again, begs the Court to question the credibility, probability and the truthfulness of the Liew’s assertion. (ii) It is verily evident that Liew is merely concocting his statements as and when it is beneficial to himself as he has failed and/or was reluctant to furnish Inspector Shakir with the relevant invoices and delivery orders to substantiate his statement. (iii) The justification that Liew received the monies to pay Draconis defies any logic or common sense. If indeed the monies were transacted for the purpose of paying Draconis for their supply of diesel, why would Microvest instead transfer the monies into Liew’s personal account and not directly to Draconis which would have been more efficient to achieve that purpose. There’s no conceivable reason to let the monies pass through Liew before payment is made to Draconis. (iv) It defies the very fabric of banking and commercial principles to assert that it is more advisable to have Liew receive the monies in his personal account as Director in the pursuit of obtaining Overdraft facilities from the Bank. When a Bank is considering the legibility of a corporation for a facility, it goes without saying that the Bank is more concerned on the financial health of the Corporation rather than its director(s). It would make more sense that the Bank would definitely be more persuaded to grant facilities to a corporation when the Corporation itself furnished securities of its own fixed deposit account. The monies of a Director are not by any means the asset of the company. But monies in a Corporation’s own fixed deposit are definitely its own asset. And a Bank would be more persuaded to grant facilities to a Corporation knowing that the same Corporation is able to furnish valuable securities out of its own assets. Court’s findings on Liew’s involvement in the fraud [163] In light of the lengthy discourse earlier and the inferences drawn above, it is this Court considered view that Liew has dreadfully failed to prove any viable justification of his participation in the proceeds of the fraud. [164] Thus, it is also this Court’s considered view that in absence of such evidence, it is evidently clear that Liew is liable for the tort of conspiracy as his participation in the proceeds of the fraud is indeed another layer in the layering exercise concerted by the Defedants in attempting to render the proceeds untraceable. It is a clear evidence of an agreement between Liew and the other fraudsters and conspirators to defraud the Plaintiff and to attempt to render the proceeds from the fraud untraceable vide this layering exercise. The issue of the applicable of burden of proof is a moot point [165] The Court does not intend to delve deeply into this issue. After discussing all the evidences and submissions of the parties, it is this Court’s view that the issue of burden of proof is merely a moot point. [166] The evidences and the parties’ submissions are adequately sufficient for this Court to make its findings above notwithstanding the burden of proof being the civil balance of probabilities or the criminal beyond reasonable doubt. [167] The evidences are immensely overwhelming to show that the Defendants’ case is verily improbable with acute certainty and without a single iota of doubt. This Court holds no doubt in Plaintiff’s case and this Court also finds that the Defendants’ defence wholly improbable. [168] Nevertheless, for the sake of completeness, this Court is of the opinion that the appropriate burden of proof is the civil balance of probabilities. Namely because: (i) The Plaintiff has correctly pointed out that the case of Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301 is distinguishable to the present case. In that the Federal Court in the Paper Mills Case (in upholding the burden of proof to be on a beyond reasonable doubt basis) had to deal with fraud in the criminal act of arson. It is a hybrid of civil fraud and another serious criminal conduct of arson. (ii) It is more relevant and appropriate for this Court to seek guidance to the Federal Court decision in the case of Ang Hiok Seng @ Ang Yok Seng v Yim Yut Kiu (Professional representative of the estate of Chan Weng Sun, deceased) [1997] 2 MLJ 45. Azmi FCJ (as he then was) had held on the applicable burden of proof in proving fraud: “But where the allegation of fraud is entirely founded on a civil fraud – not based on a criminal conduct or offence – the civil burden is applicable”. (iii) Indeed the circumstances of the present case is closer and more relevant to the above excerpt of the Federal Court’s decision as indeed the allegation of fraud is purely founded on a civil fraud. The fraud in the present case can stand alone without any symbiosis of another criminal offence (unlike the Paper Mills case which the fraud is innate with the criminal act of arson) (iv) Furthermore, a recent decision by Prasad Abraham J (as he then was) in the case of Modern Universal Sdn Bhd v MSIG Insurance (M) Sdn Bhd [2014] 11 MLJ 186 has preferred the stance taken in the Ang Hiok Seng case over the stance of the Paper Mills case. (v) Additionally, alluding to one of the authorities referred to by the Defendants at page 49 of their submissions, particularly the Supreme Court decision of Chu Choon Moi v Ngan Siew Tin [1986] 1 MLJ 34 at page 38: “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The degree of proof need not reach certainty but it must carry a high degree of probability. What is means is that the evidence adduced is such that the court or a prudent man consideres its existence probable in the circumstances of the case” Looking at the excerpt of the Supreme Court’s decision above, the standard of proof beyond reasonable is merely a label, or a repackaging of the civil balance of probabilities. Although the court upheld the standard of proof of beyond reasonable doubt, the description of that proof is entirely a description of the standard of the civil balance of probabilities. [169] Nevertheless, this Court is of the view that the Plaintiff has clearly proven his case in either of the standards of proof. The decision in the Melaka Sessions Court is irrelevant to this Court [170] This Court is minded that the Melaka Sessions Court in a separate criminal proceeding have charged and acquitted Liew from a charge under the AMLATFA. However, for the following reasons, this Court is of the view that the decision is irrelevant to be considered by this Court: (i) Inspector Shakri who had recommended the acquittal of Liew had only considered and investigated the charge on the relationship of Plustrans with Vijaya and JM. The investigation had not considered the relationship between Plustrans and Microvest as well as Liew. Furthermore, Inspector Shakir was not furnished any of the invoices and/or delivery orders for his investigation. The excerpt of Inspector Shakir’s testimony is reproduced below: “DW5: Yang Arif, as I have stated earlier my line of investigation is we investigated on the company of Plustrans, that means dealing with the complainant with Ms Vijaya that time with Plustrans Court: Your basis of investigation is a transaction between Jejak Maju and Plustrans? DW5: Jejak Maju and Plustrans Court: That is your basis? DW5: Yes that is basis. (ii) Furthermore, the learned Melaka Sessions Court Judge in her grounds of judgment has also noted that the prosecution’s case against Liew was not based on complicity between Microvest and Plustrans and that Inspector Shakir had not investigated the authenticity of the dealings between Plustrans and Microvest. The learned Sessions Court Judge held: “This is simply because it was not the prosecution case that the third accused was complicit in any way with the first and second accused… The investigating Officer (‘I.O.’) did not investigate on genuineness of that contract” It is evident that the Melaka Sessions Court had never delved into the dealings between Microvest and Plustrans. The criminal trial had scrutinised the dealings between Plustrans and Vijaya. Thus, it is fitting that this Court would delve into the complicity of the Defendants in the present case. Microvest’s dealings with other parties are irrelevant to the present case and are unsubstantiated [171] The Court is minded that in attempting to prove the legitimacy of Microvest’s business with Plustrans and Draconis, the Defendants have also submitted other alleged diesel transactions with other Corporations. Namely those corporations are inter alia Alberta Petrochemical, Regal Petroleum, SGS Testing, Haura Biofuels and Bekal Khidmat Sdn Bhd. [172] At this juncture, it must be reminded that only evidences which may prove the business transaction between Microvest and Plustrans as well as Draconis would be relevant evidences for this Court’s consideration. [173] All these other transactions with other Corporations hold no probative value to prove the business Microvest allegedly has with Plustrans and Draconis. Thus, it is this Court’s considered view that these evidences are wholly irrelevant to the present case. On these transactions, this Court must also mention one coincidental fact relating to the companies or corporations purportedly having legitimate diesel dealings or transactions with Microvest namely Bekal Khidmat Sdn Bhd (Bekal Khidmat). With regard to this Bekal Khidmat, both Microvest and Liew sought to produce a letter from Bekal Khidmat’s Managing Director by the name of Hjh.Badariah binti Isman (Badariah). Badariah in her recommendation letter (IDD 123, Bundle C)) has put some good words in respect of Microvest’s performance of supply of petroleum products. However, Bekal Khidmat in an action (Civil Suit 22-1792-2009) before this court had been sued for goods sold and delivered. In its statement of defence defending the action, Bekal Khidmat had introduced its entity as an incorporated company under the laws of Malaysia having its registered address at 61A, Jalan Sesama, Taman Perusahaan Batu Caves, 68100, Batu Caves Selangor Darul Ehsan. In its corporate information appearing in the Companies Commission of Malaysia (CCM)’s register shows that the business of Bekal Khidmat is the trading of electrical and mechanical production. It is obvious and clear that Bekal Khidmat does not engage itself in diesel related business. Eventhough, this letter was only marked for purposes of identification (ID document) being a Part C document as Badariah was not called as a witness. This court takes judicial notice of its existence. The procurement such a letter from this company by Microvest and Liew is another clear deception on the part of both Microvest and Liew. [174] Furthermore, upon scrutiny of all these irrelevant evidences, it must be noted that even these transactions were not sufficiently substantiated by the Defendants. THIS COURT’S DECISION [175] In light of all of the above findings, it is this Court’s decision that the Plaintiff has successfully proven its case while the Defendants have failed to prove any defence against the Plaintiff’s case. [176] Thereto, this Court also dismisses the Defendants’ counter-claim. [177] Owing to the fact that all conspirators to the fraud are acting in concert in the scheme and process of siphoning the money from the Plaintiff, then they are therefore to be jointly and equally liable to all of the sums defrauded, this Court orders the Defendants to pay the Plaintiff’s total amount claimed which is the sum of USD 5,337,847.31 together with continuing interest thereon at the rate of 1.75% per annum above the Bank’s Funding Cost for USD Currency calculated from 22.5.2009 until the date of full settlement. On the issue of costs [178] Counsels for the Plaintiffs and the Defendants had submitted to this Court on the issue of costs. The present case is indeed verily complex and complicated. The amount of monies involved is also considerably substantial. The present case also involved a considerable number of twenty (20) witnesses, in which the Plaintiff had called twelve (12) witnesses to testify, while the Defendants had called eight (8) witnesses to support their case. There were numerous interlocutory proceedings and applications, namely applications for a Mareva Injunction and a stay of proceedings which even stretches long to the Federal Court. Considering the above intricacies and complexity, this Court is of the view that costs to the amount of RM90,000.00 is indeed fair and just. This Court hereby orders the Defendants to pay the Plaintiff RM90,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 12th June, 2015 For the Plaintiff - Tetuan Benjamin Dawson, Solicitors Cik Ooi Ai Yen Cik Mah Kar Yee For the Defendants - Tetuan K.F.Ee & Co Encik James Ee Kah Fuk Cik Nur Amalina Haris 1

Tika 2.6.0

24-594-2009

PLAINTIF RAMALINGAM A/L ALUMALAY DEFENDAN VIJAYA KUMARAN A/L RENGAN

07/05/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2efb535c-c2a1-4508-bb32-89368902ed84&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. 24-594-2009 Dalam Perkara Aturan 7, Kaedah Mahkamah Tinggi 1980; Dan Dalam Perkara Hartanah yang dikenali HS (M) 3790, PT No: 958, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor Dan Dalam Perkara Seksyen 217 Kanun Tanah Negara, 1960 ANTARA RAMALINGAM A/L ALUMALAY … PLAINTIF DAN VIJAYA KUMARAN A/L RENGAN … DEFENDAN ALASAN PENGHAKIMAN (Kandungan S1) [1] Defendan (Vijaya Kumaran a/l Rengan) di dalam Saman Pemula ini, telah memfailkan permohonan di dalam Kandungan S1 bagi mendapatkan antara - lain perintah-perintah berikut: (a) mengetepikan Perintah yang diperolehi oleh Plaintif (Ramalingam a/l Alumalay) bertarikh 26.5.2009. (b) Defendan diberikan masa selama 14 hari dari tarikh perintah untuk memfailkan afidavit jawapan atau apa-apa kertas-kertas kausa yang berkaitan untuk membantah permohonan Plaintif atau sebagaimana yang diperintahkan oleh Mahkamah Yang Mulia ini. [2] Fakta ringkas yang membawa kepada permohonan Kandungan S1 adalah: (i) Suatu Deed of Assignment (Deed Penyerahan Hak) bertarikh 25.2.2000 telah dimasuki dan ditandatangani di antara Plaintif dan Defendan bagi hartanah yang dikenali sebagai HS (M) 3790, PT No: 958, Mukim Sungai Buloh, Daerah Petaling Negeri Selangor (hartanah tersebut). Melalui Deed of Assignment tersebut, Defendan sebagai tuanpunya 1/5 bahagian hartanah tersebut menyerahkan haknya kepada Plaintif dengan balasan sebanyak RM28,000. (ii) Bagi menguatkuasa haknya ke atas Deed of Assignment tersebut, Plaintif pada 28.3.2009 telah memfailkan Saman Pemula (Kandungan 1) untuk memohon beberapa perintah antara-lain satu perintah deklarasi dan perintah-perintah konsekuential yang terbit dari perintah deklarasi tersebut. Antara perintah-perintah yang dipohon oleh Plaintif adalah seperti berikut: (a) Plaintif berhak ke atas satu persepuluhan bahagian hartanah (hartanah tersebut) (b) Plaintif dibenarkan membuat permohonan kepada Pihak Berkuasa Negeri untuk satu pindah milik tanpa permohonan dari Defendan. (c) Pendaftar Hakmilik mendaftarkan satu persepuluh (1/10) bahagian hartanah tersebut atas nama Plaintif selepas penerimaan kebenaran dari Pihak Berkuasa Negeri. (iii) Defendan telah tidak memasukkan kehadirannya untuk menentang permohonan Kandungan 1 Plaintif walaupun Saman Pemula telah diserahkan kepadanya. (iv) Plaintif telah membuktikan bahawa Kandungan 1 bersama afidavit sokongannya telahpun diserahkan kepada Defendan melalui Afidavit Penyampaian yang diikrarkan oleh Kanagaraj a/l Ramalinggam (Afidavit Kanagaraj - Kandungan 3) pada 29.4.2009. (vi) Di perenggan 3 Afidavit Kanagaraj, beliau telah menyatakan seperti berikut: Bahawa saya telah pada hari Sabtu, 18hb April, 2009 telah menyampaikan surat yang bertarikh 13/04/2009 berserta dengan satu (1) salinan benar Saman Pemula bertarikh 26/03/09 dan Afidavit bertarikh 20/03/09 kepada pihak Defendan VIJAYA KUMARAN A/L RENGAN (NO. K/P: 570322-10-5337) di alamat terakhirnya di No 231L, Jalan Mortex, Off Jalan H. Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan dalam tindakan ini melalui penyampaian kediri mengikut Aturan 10 Jadual 1 Kaedah-Kaedah Mahkamah Tinggi (Pindaan), 1980 dimana beliau menerima dokumen tersebut tetapi enggan menandatangani di belakang Saman Pemula tersebut itu. (vii) Apabila Kandungan 1 ditetapkan untuk perbicaraan di hadapan YA Dato’ Noraini binti Abdul Rahman pada 30.4.2009, peguam Plaintif telah memohon penangguhan perbicaraan atas alasan serahan Kandungan 1 adalah serahan singkat. (viii) Mahkamah kemudiannya telah menetapkan perbicaraan kandungan 1 pada 26.5.2009. Apabila Kandungan 1 dipanggil untuk perbicaraan pada 26.5.2009, tanpa kehadiran Defendan dan tidak ada kehadiran dimasukkan oleh Defendan untuk menentang Kandungan 1, Mahkamah telah membenarkan permohonan Plaintif di dalam Kandungan 1. [3] Perlu dinyatakan di sini bahawa Defendan telah dimaklumkan mengenai tarikh perbicaraan 26.5.2009 melalui surat peguamcara Plaintif bertarikh 5.5.2009 yang dialamatkan kepada Defendan seperti berikut: VIJAYA KUMARAN A/L RENGAN No. 231L, Jalan Mortex, Off Jalan H.Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan CERTIFICATE OF POSTING Dear Sirs, RE : Shah Alam High Court (1) Summons No : 24-594-2009 Ramalingam A/L Alumalay … Plaintiff Vijaya Kumaran A/L Rengan … Defendant ---------------------------------------------------------------------------------------------- We refer to the above matter. Kindly be informed that the case is now fixed for Hearing on 26th MAY, 2009 wherein you are requires to be present at Shah Alam High Court (MT1), Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah, Persiaran Pegawai, Seksyen 5, 40000 Shah Alam, Selangor Darul Ehsan at 9.00 a.m. failing judgment will be taken against you. Yours faithfully, ……………………………. (V.Manickam And Partners) cc - RAMALINGAM A/L ALUMALAY Lot 958G, Jalan Anggerik, Kampung Kayu Ara, PJU 6, 47000 Petaling Jaya, Selangor Darul Ehsan [4] Kini, setelah lebih kurang 5 tahun selepas perintah diberikan Mahkamah, melalui Kandungan S1 yang difailkan pada 3.10.2014, Defendan memohon perintah bertarikh 26.5.2009 tersebut diketepikan. [5] Untuk menyokong permohonan Kandungan S1nya, Defendan telah memfailkan afidavit sokongan di Kandungan S2. [6] Bagi menyokong permohonannya, Defendan di dalam Kandungan S2 telah mengemukakan alasan-alasan berikut: i) Plaintif telah gagal menyampaikan proses Mahkamah kepadanya secara teratur. ii) Defendan tiada pengetahuan mengenai tindakan yang difailkan atau dimulakan oleh Plaintif di Mahkamah yang Mulia ini. iii) Defendan mempunyai pembelaan-pembelaan bermerit terhadap tindakan Plaintif. iv) Defendan telah hanya memperolehi kertas-kertas kausa berkenaan Perintah bertarikh 26.5.2009 pada 10/9/2014. [7] Plaintif yang membantah keras akan permohonan Defendan telah menafikan bahawa terdapat kegagalan dipihaknya untuk menyampaikan kertas kausa kepada Defendan dan menegaskan bahawa semasa perintah 26.5.2009 diperolehinya, kertas kausa adalah teratur. Plaintif juga menegaskan bahawa Defendan sememangnya telah menerima semua kertas-kertas kausa tindakan dan mempunyai pengetahuan penuh mengenai kausa tindakan Plaintif. [8] Defendan telah menghujahkan bahawa beliau tidak mempunyai pengetahuan berkenaan kertas-kertas kausa Plaintif dan menimbulkan penyataan bahawa Afidavit Kanagaraj adalah satu yang tidak teratur, palsu dan tidak lengkap atas alasan-alasan berikut: (a) Afidavit Kanagaraj mengandungi unsur-unsur penipuan kerana Defendan tidak mengenali beliau dan tidak pernah berjumpa atau diserahkan apa-apa dokumen oleh Kanagaraj A/L Ramalinggam; (b) Afidavit Kanagaraj di perenggan 3 menyatakan bahawa kertas-kertas kausa telah diserahkan kepada Defendan secara serahan Kediri namun tiada penjelasan mengenai butiran-butiran pengenalan diri saya; (c) Tiada Ekshibit yang dilampirkan bersama-sama dengan Afidavit Penyampaian tersebut; (d) Tiada kertas-kertas kausa [Saman Pemula bertarikh 26.3.2009 dan Afidavit Sokongan 20.3.2009] yang dilampirkan bersama-sama dengan Afidavit Penyampaian tersebut; dan (e) Tiada pengendorsan penyampaian yang dibuat di belakang kertas kausa. [9] Justeru, Defendan telah menghujahkan bahawa perintah bertarikh 26.5.2009 adalah satu Perintah Ingkar (Judgment in default) yang telah diperolehi oleh Plaintif atas ketidakhadiran beliau pada tarikh perbicaraan yang tidak disampaikan dengan kertas-kertas kausa. [10] Plaintif, sebaliknya telah menghujahkan bahawa perintah bertarikh 26.5.2009 tersebut adalah satu perintah yang teratur kerana Defendan sememangnya telah diserahkan dengan semua kertas kausa. Kini Defendan tidak boleh menyatakan bahawa beliau tidak ada pengetahuan atas tindakan Plaintif di dalam Kandungan 1 tersebut. [11] Berkenaan samada Defendan telah diserahkan dengan kertas-kertas kausa dan pengetahuannya mengenai tindakan Plaintif, Mahkamah ini bersependapat dengan pihak Plaintif. Adalah menjadi pandangan Mahkamah ini bahawa penyataan Defendan bahawa beliau telah tidak diserahkan dengan kertas-kertas kausa dan tidak ada pengetahuan atas tindakan Plaintif atas alasan Afidavit Kanagaraj adalah palsu ataunpun salah aturan adalah pengataan kosong Defendan semata-mata dan sesuatu yang afterthought. [12] Afidavit Kanagaraj di perenggan 3 jelas menyatakan bahawa beliau sendiri telah pergi ke alamat Defendan terakhir di No 231L, Jalan Mortex, Off Jalan H. Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan dan menyampai sendiri kertas kausa tetapi Defendan yang enggan menerima dan enggan menandatangani di belakang Saman Pemula. [13] Selain daripada penyataan di perenggan 3 tersebut, satu pengindorsan telah dibuat oleh Kanagaraj seperti berikut. PENGINDORSAN Saya, KANAGARAJ A/L RAMALINGGAM (NO. K/P: 751218-14-5059) telah pada hari Sabtu, 18hb April, 2009 telah menyampaikan surat yang bertarikh 13/04/2009 kepada pihak Defendan VIJAYA KUMARAN A/L RENGAN (NO. K/P: 570322-10-5337) di alamat terakhirnya di No 231L, Jalan Mortex, Off Jalan H.Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan berserta dengan satu salinan benar Saman Pemula bertarikh 26/03/09 dan Afidavit bertarikh 20/03/09 dalam tindakan ini melalui penyampaian kediri mengikut Aturan 10 Jadual 1 Kaedah-Kaedah Mahkamah Tinggi (Pindaan), 1980 dimana beliau enggan mengakui penerimaannya dengan menandatangani di belakang Saman Pemula tersebut. Ini adalah pengindorsan saya …………………………………….. KANAGARAJ A/L RAMALINGGAM BERTARIKH: 18hb APRIL, 2009 [14] Kini, Defendan tidak boleh setakat menyatakan bahawa Afidavit Kanagaraj itu palsu mahupun tidak teratur ataupun tidak lengkap. [15] Penyataan kosong Defendan yang kononnya beliau tidak mengetahui adanya perintah bertarikh 26.5.2009 dan ketidakadanya pengetahuannya mengenai kertas-kertas kausa Plaintif telah dikuatkan lagi oleh beliau sendiri. Mahkamah berkata begini dengan merujuk kepada pengataan Defendan di dalam afidavit sokongan permohonannya di Kandungan S1 yakni Kandungan S2. Di perenggan 7, Kandungan S2, Defendan sendiri mengakui bahawa beliau telah menerima surat daripada peguamcara Plaintif bertarikh 22.4.2014 dan mengekshibitkannya sebagai Ekshibit V-1. Penelitian Mahkamah ini kepada Ekshibit V-1 tersebut, jelas tertera alamat yang di gunakan di dalam surat tersebut adalah: VIJAYA KUMARAN A/L RENGAN No. 231-L, RRI Expt Station, 47000 Sungai Buloh, Selangor Darul Ehsan [16] Di perenggan 7, Kandungan S2 jelas berbunyi berikut: 7. Saya menyatakan bahawa saya telah menerima satu surat Peguamcara Plaintif [Tetuan Hariharan Mohanna & Co] bertarikh 22.4.2014 tanpa sebarang kertas kausa. Surat tersebut menyatakan bahawa kononnya Plaintif telah memfailkan satu permohonan pindaan. Seorang pekerja lain di Lembaga Getah Malaysia telah menyerahkan surat Peguamcara Plaintif bertarikh 22.4.2014 tersebut kepada saya. Sesalinan surat peguamcara Plaintif bertarikh 22.4.2014 dilampirkan dan ditandakan sebagai Ekshibit “V-1”. [17] Alamat inilah alamat yang mana Kanagaraj telah pergi untuk menyampaikan Saman Pemula/ Afidavit Sokongan yang mana Defendan enggan menerima. [18] Di samping itu juga, alamat yang sama juga telah digunakan oleh peguamcara Plaintif bagi surat bertarikh 5.5.2009 untuk memberitahu Defendan tarikh perbicaraan Kandungan 1 pada 26.5.2009. [19] Apa yang jelas pada pada pandangan Mahkamah ini adalah; pada tahun 2009, Kanagaraj telahpun pergi dan menyerahkan Saman Pemula kepada Defendan di alamat No. 231-L, RRI Expt Station, 47000 Sungai Buloh, Selangor Darul Ehsan (No.231-L). Defendan juga telah dimaklumkan akan tarikh perbicaraan pada 26.5.2009 melalui surat peguam Plaintif bertarikh 5.5.2009 yang juga di alamatkan kepada alamat yang sama. [20] Adalah suatu perkara yang tidak diterima akal apabila Defendan cuba menafikan penerimaan kertas-kertas kausa yang diserahkan secara kediri di alamat No. 231-L dan surat pemakluman tarikh perbicaraan 26.5.2009 juga menggunakan alamat No. 231-L, sedangkan penggunaan alamat No. 231-L juga, Defendan telah mengakui menerima surat peguam Plaintif bertarikh 22.4.2014 yang memaklumkan bahawa Plaintif telah memfailkan permohonan untuk meminda perintah bertarikh 26.5.2009. Defendan tidak pada bila-bila masa pun menafikan alamat No. 231-L adalah alamat beliau. [21] Di samping itu, Mahkamah ini juga berpandangan bahawa Defendan sebenarnya tidak begitu mengambil berat akan perintah yang telah diperolehi oleh Plaintif kerana walaupun Defendan telah mengetahui bahawa adanya permohonan untuk meminda perintah bertarikh 26.5.2009 dan juga permohonan untuk meminda permohonan meminda perintah di Kandungan 4, Defendan telah tidak berbuat apa-apa terhadap perintah bertarikh 26.5.2009 sehinggalah bulan Oktober 2014 barulah beliau berhasrat untuk membuat permohonan mengetepikan perintah bertarikh 26.5.2009 itu. Walhal, Plaintif dalam pada masa itu telahpun mendapatkan perintah bagi meminda Notis Permohonan meminda perintah daripada YA Dato’ Ahmadi pada 21.07.2014. [22] Penelitian telah juga dibuat oleh Mahkamah ini ke atas semua kertas kausa untuk meminda perintah dan permohonan untuk meminda permohonan untuk meminda perintah dan mendapati bahawa semua kertas kausa bagi permohonan-permohonan tersebut telah disampaikan kepada Defendan di alamat No. 231-L. [23] Malahan, atas penerimaan kertas-kertas kausa bagi permohonan pindaan, Defendan sendiri telahpun menentang permohonan-permohonan pindaan oleh Plaintif tersebut dengan memfailkan afidavit jawapan yang diikrarkan pada 17.09.2014. [24] Atas alasan-alasan di atas, Mahkamah ini memutuskan bahawa perintah yang diperolehi oleh Plaintif bertarikh 26.5.2009 adalah suatu perintah yang teratur (regular judgment). [25] Undang-undang adalah jelas dan jitu, bahawa untuk mengetepikan satu perintah yang teratur, Defendan hendaklah menunjukkan bahawa beliau mempunyai pembelaan yang bermerit. (Sila lihat: i. Evans v. Bartlam [1937] AC 473 (refd). ii. Hasil Bumi Perumahan Sdn Bhd & 5 Ors v. United Malayan Banking Berhad [1994] 1 CLJ 329. iii. Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175.) [26] Defendan di dalam percubaannya menimbulkan satu pembelaan kes yang bermerit telah menyatakan bahawa Deed of Assignment yang dimasukinya dengan Plaintif adalah tidak sah dan terbatal menurut Akta Probet dan Pentadbiran. Semasa Deed of Assignment itu dimasuki dan ditandatangani Defendan, ianya adalah berdasarkan kepada satu Perintah Pembahagian No. 5/97 Tahun 1984 yang telah dikeluarkan oleh Pejabat Tanah dan Galian Petaling. Defendan telah mendakwa bahawa beliau dan adik-beradiknya baru sahaja mengetahui bahawa ayah kandung mereka iaitu Rengan A/L Maruthan (Si Mati) yang telah meninggal dunia pada 19.12.1982 ada meninggalkan wasiat (wasiat tersebut) semasa hidupnya. Wasiat tersebut baharu sahaja ditemui. Adalah menjadi dakwaan Defendan memandang terdapatnya wasiat tersebut, maka hartanah tersebut menjadi harta Pusaka Si Mati yang mana tidak ada mana-mana pihak berhak untuk memindahmilik atau menandatangani apa-apa perjanjian yang bertentangan dengan terma-terma Wasiat tersebut. [27] Pengataan Defendan di dalam hal ini adalah tidak bermerit dan tidak berasas. Mahkamah ini berkata begitu atas alasan-alasan berikut: (i) Cerita mengenai wasiat si mati hanya baru timbul selepas 32 tahun kematian si mati. Cerita ini timbul apabila Defendan membuat permohonan ini. Cerita wasiat ini tidak dapat dipastikan kesahihannya kerana ia setakat pengataan Defendan sahaja. Kalaupun diandaikan wasiat tersebut wujud, telah terdapat perintah pembahagian yang telah dikeluarkan oleh Pentadbir Tanah mengenai hartanah tersebut yang masih lagi terpakai dan telahpun dilaksanakan apabila hartanah tersebut telah dipindahmilik kepada waris-waris simati seperti di dalam perintah pembahagian tersebut di mana setiap waris menerima setakat 1/5 bahagian. (ii) Dalam hal ini, Mahkamah ini bersependapat dengan Plaintif bahawa di dalam kes ini Defendan sendiri yang telah melaksanakan Deed of Assignment tersebut dan sebagai kesan daripada penyerahan hak ini, Defendan telah menyerahkan hak yang ada padanya ke atas hartanah tersebut kepada Plaintif. Deed of Assignment tersebut telah disempurnakan oleh Defendan bukan sebagai pentadbir tetapi sebagai pemilik bahagian yang sah atas hartanah tersebut dan juga sebagai pihak yang mempunyai faedah ke atas hartanah tersebut. Kalaupun benar ada penemuan wasiat yang baru, hak Defendan ke atas hartanah tersebut adalah sama yakni pihak yang mempunyai keempunyaan setakat 1/5 bahagian . (iii) Walau apa pun, jika diteliti kepada wasiat yang dikatakan baru ditemui, bahagian Defendan terhadap tanah tersebut adalah sama dengan pembahagian yang tertera di dalam pembahagian Pentadbir Tanah. Maka, Defendan tidak boleh menggunakan alasan wasiat untuk menafikan hak Plaintif terhadap hartanah tersebut melalui Deed of Assignment tersebut yang mana Defendan sendiri telah menyerahkan haknya kepada Plaintif. Wasiat tersebut tidak menghalang penyerahanhak Defendan yang sememangnya ada terhadap hartanah tersebut kepada Plaintif. Dalam ertikata lain, wasiat tersebut (jika benar ada) tidak memberi kesan ke atas kesahan Deed of Assignment yang dilaksanakan oleh Plaintif dan Defendan. [28] Di samping itu, Mahkamah ini juga berpandangan bahawa permohonan yang dibuat oleh Defendan setelah lima (5) tahun selepas perintah 26.5. 2009 dikeluarkan adalah permohonan yang lewat. Kelewatan ini adalah kelewatan yang tidak munasabah dan melampau. (Sila lihat: i. Tuan Haji Ahmad Abdul Rahman v. Arab-Malaysian Finance Bhd [1996] 1 CLJ 241. ii. Toh Hock Thye & Ors Toh Chwee Biow [1982] 1 MLJ 152.) [29] Atas alasan-alasan di atas, Mahkamah ini menolak permohonan Defendan di dalam Kandungan S1 dengan kos. Defendan dengan ini diperintah untuk membayar kos sebanyak RM1000.00 kepada Plaintif. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 7hb Mei 2015 Peguam Plaintif - Tetuan Hariharan Mohanna & Co Encik Thaneswaran A/L Palaraman Peguam Defendan - Tetuan Chambers of Firdaus Encik David Samuel Encik R.Thanasegar 20

Tika 2.6.0

24-594-2009

PLAINTIF RAMALINGAM A/L ALUMALAY DEFENDAN VIJAYA KUMARAN A/L RENGAN

07/05/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2efb535c-c2a1-4508-bb32-89368902ed84&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. 24-594-2009 Dalam Perkara Aturan 7, Kaedah Mahkamah Tinggi 1980; Dan Dalam Perkara Hartanah yang dikenali HS (M) 3790, PT No: 958, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor Dan Dalam Perkara Seksyen 217 Kanun Tanah Negara, 1960 ANTARA RAMALINGAM A/L ALUMALAY … PLAINTIF DAN VIJAYA KUMARAN A/L RENGAN … DEFENDAN ALASAN PENGHAKIMAN (Kandungan S1) [1] Defendan (Vijaya Kumaran a/l Rengan) di dalam Saman Pemula ini, telah memfailkan permohonan di dalam Kandungan S1 bagi mendapatkan antara - lain perintah-perintah berikut: (a) mengetepikan Perintah yang diperolehi oleh Plaintif (Ramalingam a/l Alumalay) bertarikh 26.5.2009. (b) Defendan diberikan masa selama 14 hari dari tarikh perintah untuk memfailkan afidavit jawapan atau apa-apa kertas-kertas kausa yang berkaitan untuk membantah permohonan Plaintif atau sebagaimana yang diperintahkan oleh Mahkamah Yang Mulia ini. [2] Fakta ringkas yang membawa kepada permohonan Kandungan S1 adalah: (i) Suatu Deed of Assignment (Deed Penyerahan Hak) bertarikh 25.2.2000 telah dimasuki dan ditandatangani di antara Plaintif dan Defendan bagi hartanah yang dikenali sebagai HS (M) 3790, PT No: 958, Mukim Sungai Buloh, Daerah Petaling Negeri Selangor (hartanah tersebut). Melalui Deed of Assignment tersebut, Defendan sebagai tuanpunya 1/5 bahagian hartanah tersebut menyerahkan haknya kepada Plaintif dengan balasan sebanyak RM28,000. (ii) Bagi menguatkuasa haknya ke atas Deed of Assignment tersebut, Plaintif pada 28.3.2009 telah memfailkan Saman Pemula (Kandungan 1) untuk memohon beberapa perintah antara-lain satu perintah deklarasi dan perintah-perintah konsekuential yang terbit dari perintah deklarasi tersebut. Antara perintah-perintah yang dipohon oleh Plaintif adalah seperti berikut: (a) Plaintif berhak ke atas satu persepuluhan bahagian hartanah (hartanah tersebut) (b) Plaintif dibenarkan membuat permohonan kepada Pihak Berkuasa Negeri untuk satu pindah milik tanpa permohonan dari Defendan. (c) Pendaftar Hakmilik mendaftarkan satu persepuluh (1/10) bahagian hartanah tersebut atas nama Plaintif selepas penerimaan kebenaran dari Pihak Berkuasa Negeri. (iii) Defendan telah tidak memasukkan kehadirannya untuk menentang permohonan Kandungan 1 Plaintif walaupun Saman Pemula telah diserahkan kepadanya. (iv) Plaintif telah membuktikan bahawa Kandungan 1 bersama afidavit sokongannya telahpun diserahkan kepada Defendan melalui Afidavit Penyampaian yang diikrarkan oleh Kanagaraj a/l Ramalinggam (Afidavit Kanagaraj - Kandungan 3) pada 29.4.2009. (vi) Di perenggan 3 Afidavit Kanagaraj, beliau telah menyatakan seperti berikut: Bahawa saya telah pada hari Sabtu, 18hb April, 2009 telah menyampaikan surat yang bertarikh 13/04/2009 berserta dengan satu (1) salinan benar Saman Pemula bertarikh 26/03/09 dan Afidavit bertarikh 20/03/09 kepada pihak Defendan VIJAYA KUMARAN A/L RENGAN (NO. K/P: 570322-10-5337) di alamat terakhirnya di No 231L, Jalan Mortex, Off Jalan H. Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan dalam tindakan ini melalui penyampaian kediri mengikut Aturan 10 Jadual 1 Kaedah-Kaedah Mahkamah Tinggi (Pindaan), 1980 dimana beliau menerima dokumen tersebut tetapi enggan menandatangani di belakang Saman Pemula tersebut itu. (vii) Apabila Kandungan 1 ditetapkan untuk perbicaraan di hadapan YA Dato’ Noraini binti Abdul Rahman pada 30.4.2009, peguam Plaintif telah memohon penangguhan perbicaraan atas alasan serahan Kandungan 1 adalah serahan singkat. (viii) Mahkamah kemudiannya telah menetapkan perbicaraan kandungan 1 pada 26.5.2009. Apabila Kandungan 1 dipanggil untuk perbicaraan pada 26.5.2009, tanpa kehadiran Defendan dan tidak ada kehadiran dimasukkan oleh Defendan untuk menentang Kandungan 1, Mahkamah telah membenarkan permohonan Plaintif di dalam Kandungan 1. [3] Perlu dinyatakan di sini bahawa Defendan telah dimaklumkan mengenai tarikh perbicaraan 26.5.2009 melalui surat peguamcara Plaintif bertarikh 5.5.2009 yang dialamatkan kepada Defendan seperti berikut: VIJAYA KUMARAN A/L RENGAN No. 231L, Jalan Mortex, Off Jalan H.Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan CERTIFICATE OF POSTING Dear Sirs, RE : Shah Alam High Court (1) Summons No : 24-594-2009 Ramalingam A/L Alumalay … Plaintiff Vijaya Kumaran A/L Rengan … Defendant ---------------------------------------------------------------------------------------------- We refer to the above matter. Kindly be informed that the case is now fixed for Hearing on 26th MAY, 2009 wherein you are requires to be present at Shah Alam High Court (MT1), Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah, Persiaran Pegawai, Seksyen 5, 40000 Shah Alam, Selangor Darul Ehsan at 9.00 a.m. failing judgment will be taken against you. Yours faithfully, ……………………………. (V.Manickam And Partners) cc - RAMALINGAM A/L ALUMALAY Lot 958G, Jalan Anggerik, Kampung Kayu Ara, PJU 6, 47000 Petaling Jaya, Selangor Darul Ehsan [4] Kini, setelah lebih kurang 5 tahun selepas perintah diberikan Mahkamah, melalui Kandungan S1 yang difailkan pada 3.10.2014, Defendan memohon perintah bertarikh 26.5.2009 tersebut diketepikan. [5] Untuk menyokong permohonan Kandungan S1nya, Defendan telah memfailkan afidavit sokongan di Kandungan S2. [6] Bagi menyokong permohonannya, Defendan di dalam Kandungan S2 telah mengemukakan alasan-alasan berikut: i) Plaintif telah gagal menyampaikan proses Mahkamah kepadanya secara teratur. ii) Defendan tiada pengetahuan mengenai tindakan yang difailkan atau dimulakan oleh Plaintif di Mahkamah yang Mulia ini. iii) Defendan mempunyai pembelaan-pembelaan bermerit terhadap tindakan Plaintif. iv) Defendan telah hanya memperolehi kertas-kertas kausa berkenaan Perintah bertarikh 26.5.2009 pada 10/9/2014. [7] Plaintif yang membantah keras akan permohonan Defendan telah menafikan bahawa terdapat kegagalan dipihaknya untuk menyampaikan kertas kausa kepada Defendan dan menegaskan bahawa semasa perintah 26.5.2009 diperolehinya, kertas kausa adalah teratur. Plaintif juga menegaskan bahawa Defendan sememangnya telah menerima semua kertas-kertas kausa tindakan dan mempunyai pengetahuan penuh mengenai kausa tindakan Plaintif. [8] Defendan telah menghujahkan bahawa beliau tidak mempunyai pengetahuan berkenaan kertas-kertas kausa Plaintif dan menimbulkan penyataan bahawa Afidavit Kanagaraj adalah satu yang tidak teratur, palsu dan tidak lengkap atas alasan-alasan berikut: (a) Afidavit Kanagaraj mengandungi unsur-unsur penipuan kerana Defendan tidak mengenali beliau dan tidak pernah berjumpa atau diserahkan apa-apa dokumen oleh Kanagaraj A/L Ramalinggam; (b) Afidavit Kanagaraj di perenggan 3 menyatakan bahawa kertas-kertas kausa telah diserahkan kepada Defendan secara serahan Kediri namun tiada penjelasan mengenai butiran-butiran pengenalan diri saya; (c) Tiada Ekshibit yang dilampirkan bersama-sama dengan Afidavit Penyampaian tersebut; (d) Tiada kertas-kertas kausa [Saman Pemula bertarikh 26.3.2009 dan Afidavit Sokongan 20.3.2009] yang dilampirkan bersama-sama dengan Afidavit Penyampaian tersebut; dan (e) Tiada pengendorsan penyampaian yang dibuat di belakang kertas kausa. [9] Justeru, Defendan telah menghujahkan bahawa perintah bertarikh 26.5.2009 adalah satu Perintah Ingkar (Judgment in default) yang telah diperolehi oleh Plaintif atas ketidakhadiran beliau pada tarikh perbicaraan yang tidak disampaikan dengan kertas-kertas kausa. [10] Plaintif, sebaliknya telah menghujahkan bahawa perintah bertarikh 26.5.2009 tersebut adalah satu perintah yang teratur kerana Defendan sememangnya telah diserahkan dengan semua kertas kausa. Kini Defendan tidak boleh menyatakan bahawa beliau tidak ada pengetahuan atas tindakan Plaintif di dalam Kandungan 1 tersebut. [11] Berkenaan samada Defendan telah diserahkan dengan kertas-kertas kausa dan pengetahuannya mengenai tindakan Plaintif, Mahkamah ini bersependapat dengan pihak Plaintif. Adalah menjadi pandangan Mahkamah ini bahawa penyataan Defendan bahawa beliau telah tidak diserahkan dengan kertas-kertas kausa dan tidak ada pengetahuan atas tindakan Plaintif atas alasan Afidavit Kanagaraj adalah palsu ataunpun salah aturan adalah pengataan kosong Defendan semata-mata dan sesuatu yang afterthought. [12] Afidavit Kanagaraj di perenggan 3 jelas menyatakan bahawa beliau sendiri telah pergi ke alamat Defendan terakhir di No 231L, Jalan Mortex, Off Jalan H. Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan dan menyampai sendiri kertas kausa tetapi Defendan yang enggan menerima dan enggan menandatangani di belakang Saman Pemula. [13] Selain daripada penyataan di perenggan 3 tersebut, satu pengindorsan telah dibuat oleh Kanagaraj seperti berikut. PENGINDORSAN Saya, KANAGARAJ A/L RAMALINGGAM (NO. K/P: 751218-14-5059) telah pada hari Sabtu, 18hb April, 2009 telah menyampaikan surat yang bertarikh 13/04/2009 kepada pihak Defendan VIJAYA KUMARAN A/L RENGAN (NO. K/P: 570322-10-5337) di alamat terakhirnya di No 231L, Jalan Mortex, Off Jalan H.Guainensis, RRI Experimental Station, 47400 Sungai Buloh, Selangor Darul Ehsan berserta dengan satu salinan benar Saman Pemula bertarikh 26/03/09 dan Afidavit bertarikh 20/03/09 dalam tindakan ini melalui penyampaian kediri mengikut Aturan 10 Jadual 1 Kaedah-Kaedah Mahkamah Tinggi (Pindaan), 1980 dimana beliau enggan mengakui penerimaannya dengan menandatangani di belakang Saman Pemula tersebut. Ini adalah pengindorsan saya …………………………………….. KANAGARAJ A/L RAMALINGGAM BERTARIKH: 18hb APRIL, 2009 [14] Kini, Defendan tidak boleh setakat menyatakan bahawa Afidavit Kanagaraj itu palsu mahupun tidak teratur ataupun tidak lengkap. [15] Penyataan kosong Defendan yang kononnya beliau tidak mengetahui adanya perintah bertarikh 26.5.2009 dan ketidakadanya pengetahuannya mengenai kertas-kertas kausa Plaintif telah dikuatkan lagi oleh beliau sendiri. Mahkamah berkata begini dengan merujuk kepada pengataan Defendan di dalam afidavit sokongan permohonannya di Kandungan S1 yakni Kandungan S2. Di perenggan 7, Kandungan S2, Defendan sendiri mengakui bahawa beliau telah menerima surat daripada peguamcara Plaintif bertarikh 22.4.2014 dan mengekshibitkannya sebagai Ekshibit V-1. Penelitian Mahkamah ini kepada Ekshibit V-1 tersebut, jelas tertera alamat yang di gunakan di dalam surat tersebut adalah: VIJAYA KUMARAN A/L RENGAN No. 231-L, RRI Expt Station, 47000 Sungai Buloh, Selangor Darul Ehsan [16] Di perenggan 7, Kandungan S2 jelas berbunyi berikut: 7. Saya menyatakan bahawa saya telah menerima satu surat Peguamcara Plaintif [Tetuan Hariharan Mohanna & Co] bertarikh 22.4.2014 tanpa sebarang kertas kausa. Surat tersebut menyatakan bahawa kononnya Plaintif telah memfailkan satu permohonan pindaan. Seorang pekerja lain di Lembaga Getah Malaysia telah menyerahkan surat Peguamcara Plaintif bertarikh 22.4.2014 tersebut kepada saya. Sesalinan surat peguamcara Plaintif bertarikh 22.4.2014 dilampirkan dan ditandakan sebagai Ekshibit “V-1”. [17] Alamat inilah alamat yang mana Kanagaraj telah pergi untuk menyampaikan Saman Pemula/ Afidavit Sokongan yang mana Defendan enggan menerima. [18] Di samping itu juga, alamat yang sama juga telah digunakan oleh peguamcara Plaintif bagi surat bertarikh 5.5.2009 untuk memberitahu Defendan tarikh perbicaraan Kandungan 1 pada 26.5.2009. [19] Apa yang jelas pada pada pandangan Mahkamah ini adalah; pada tahun 2009, Kanagaraj telahpun pergi dan menyerahkan Saman Pemula kepada Defendan di alamat No. 231-L, RRI Expt Station, 47000 Sungai Buloh, Selangor Darul Ehsan (No.231-L). Defendan juga telah dimaklumkan akan tarikh perbicaraan pada 26.5.2009 melalui surat peguam Plaintif bertarikh 5.5.2009 yang juga di alamatkan kepada alamat yang sama. [20] Adalah suatu perkara yang tidak diterima akal apabila Defendan cuba menafikan penerimaan kertas-kertas kausa yang diserahkan secara kediri di alamat No. 231-L dan surat pemakluman tarikh perbicaraan 26.5.2009 juga menggunakan alamat No. 231-L, sedangkan penggunaan alamat No. 231-L juga, Defendan telah mengakui menerima surat peguam Plaintif bertarikh 22.4.2014 yang memaklumkan bahawa Plaintif telah memfailkan permohonan untuk meminda perintah bertarikh 26.5.2009. Defendan tidak pada bila-bila masa pun menafikan alamat No. 231-L adalah alamat beliau. [21] Di samping itu, Mahkamah ini juga berpandangan bahawa Defendan sebenarnya tidak begitu mengambil berat akan perintah yang telah diperolehi oleh Plaintif kerana walaupun Defendan telah mengetahui bahawa adanya permohonan untuk meminda perintah bertarikh 26.5.2009 dan juga permohonan untuk meminda permohonan meminda perintah di Kandungan 4, Defendan telah tidak berbuat apa-apa terhadap perintah bertarikh 26.5.2009 sehinggalah bulan Oktober 2014 barulah beliau berhasrat untuk membuat permohonan mengetepikan perintah bertarikh 26.5.2009 itu. Walhal, Plaintif dalam pada masa itu telahpun mendapatkan perintah bagi meminda Notis Permohonan meminda perintah daripada YA Dato’ Ahmadi pada 21.07.2014. [22] Penelitian telah juga dibuat oleh Mahkamah ini ke atas semua kertas kausa untuk meminda perintah dan permohonan untuk meminda permohonan untuk meminda perintah dan mendapati bahawa semua kertas kausa bagi permohonan-permohonan tersebut telah disampaikan kepada Defendan di alamat No. 231-L. [23] Malahan, atas penerimaan kertas-kertas kausa bagi permohonan pindaan, Defendan sendiri telahpun menentang permohonan-permohonan pindaan oleh Plaintif tersebut dengan memfailkan afidavit jawapan yang diikrarkan pada 17.09.2014. [24] Atas alasan-alasan di atas, Mahkamah ini memutuskan bahawa perintah yang diperolehi oleh Plaintif bertarikh 26.5.2009 adalah suatu perintah yang teratur (regular judgment). [25] Undang-undang adalah jelas dan jitu, bahawa untuk mengetepikan satu perintah yang teratur, Defendan hendaklah menunjukkan bahawa beliau mempunyai pembelaan yang bermerit. (Sila lihat: i. Evans v. Bartlam [1937] AC 473 (refd). ii. Hasil Bumi Perumahan Sdn Bhd & 5 Ors v. United Malayan Banking Berhad [1994] 1 CLJ 329. iii. Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175.) [26] Defendan di dalam percubaannya menimbulkan satu pembelaan kes yang bermerit telah menyatakan bahawa Deed of Assignment yang dimasukinya dengan Plaintif adalah tidak sah dan terbatal menurut Akta Probet dan Pentadbiran. Semasa Deed of Assignment itu dimasuki dan ditandatangani Defendan, ianya adalah berdasarkan kepada satu Perintah Pembahagian No. 5/97 Tahun 1984 yang telah dikeluarkan oleh Pejabat Tanah dan Galian Petaling. Defendan telah mendakwa bahawa beliau dan adik-beradiknya baru sahaja mengetahui bahawa ayah kandung mereka iaitu Rengan A/L Maruthan (Si Mati) yang telah meninggal dunia pada 19.12.1982 ada meninggalkan wasiat (wasiat tersebut) semasa hidupnya. Wasiat tersebut baharu sahaja ditemui. Adalah menjadi dakwaan Defendan memandang terdapatnya wasiat tersebut, maka hartanah tersebut menjadi harta Pusaka Si Mati yang mana tidak ada mana-mana pihak berhak untuk memindahmilik atau menandatangani apa-apa perjanjian yang bertentangan dengan terma-terma Wasiat tersebut. [27] Pengataan Defendan di dalam hal ini adalah tidak bermerit dan tidak berasas. Mahkamah ini berkata begitu atas alasan-alasan berikut: (i) Cerita mengenai wasiat si mati hanya baru timbul selepas 32 tahun kematian si mati. Cerita ini timbul apabila Defendan membuat permohonan ini. Cerita wasiat ini tidak dapat dipastikan kesahihannya kerana ia setakat pengataan Defendan sahaja. Kalaupun diandaikan wasiat tersebut wujud, telah terdapat perintah pembahagian yang telah dikeluarkan oleh Pentadbir Tanah mengenai hartanah tersebut yang masih lagi terpakai dan telahpun dilaksanakan apabila hartanah tersebut telah dipindahmilik kepada waris-waris simati seperti di dalam perintah pembahagian tersebut di mana setiap waris menerima setakat 1/5 bahagian. (ii) Dalam hal ini, Mahkamah ini bersependapat dengan Plaintif bahawa di dalam kes ini Defendan sendiri yang telah melaksanakan Deed of Assignment tersebut dan sebagai kesan daripada penyerahan hak ini, Defendan telah menyerahkan hak yang ada padanya ke atas hartanah tersebut kepada Plaintif. Deed of Assignment tersebut telah disempurnakan oleh Defendan bukan sebagai pentadbir tetapi sebagai pemilik bahagian yang sah atas hartanah tersebut dan juga sebagai pihak yang mempunyai faedah ke atas hartanah tersebut. Kalaupun benar ada penemuan wasiat yang baru, hak Defendan ke atas hartanah tersebut adalah sama yakni pihak yang mempunyai keempunyaan setakat 1/5 bahagian . (iii) Walau apa pun, jika diteliti kepada wasiat yang dikatakan baru ditemui, bahagian Defendan terhadap tanah tersebut adalah sama dengan pembahagian yang tertera di dalam pembahagian Pentadbir Tanah. Maka, Defendan tidak boleh menggunakan alasan wasiat untuk menafikan hak Plaintif terhadap hartanah tersebut melalui Deed of Assignment tersebut yang mana Defendan sendiri telah menyerahkan haknya kepada Plaintif. Wasiat tersebut tidak menghalang penyerahanhak Defendan yang sememangnya ada terhadap hartanah tersebut kepada Plaintif. Dalam ertikata lain, wasiat tersebut (jika benar ada) tidak memberi kesan ke atas kesahan Deed of Assignment yang dilaksanakan oleh Plaintif dan Defendan. [28] Di samping itu, Mahkamah ini juga berpandangan bahawa permohonan yang dibuat oleh Defendan setelah lima (5) tahun selepas perintah 26.5. 2009 dikeluarkan adalah permohonan yang lewat. Kelewatan ini adalah kelewatan yang tidak munasabah dan melampau. (Sila lihat: i. Tuan Haji Ahmad Abdul Rahman v. Arab-Malaysian Finance Bhd [1996] 1 CLJ 241. ii. Toh Hock Thye & Ors Toh Chwee Biow [1982] 1 MLJ 152.) [29] Atas alasan-alasan di atas, Mahkamah ini menolak permohonan Defendan di dalam Kandungan S1 dengan kos. Defendan dengan ini diperintah untuk membayar kos sebanyak RM1000.00 kepada Plaintif. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 7hb Mei 2015 Peguam Plaintif - Tetuan Hariharan Mohanna & Co Encik Thaneswaran A/L Palaraman Peguam Defendan - Tetuan Chambers of Firdaus Encik David Samuel Encik R.Thanasegar 20

Tika 2.6.0

25-17-05/2014

PEMOHON KURNIA OUTDOOR SDN BHD RESPONDEN MAJLIS BANDARAYA PETALING JAYA

05/05/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=273b0f6a-ef8e-47fe-a2a1-21d8d42b894a&Inline=true

Failed Extraction

22-1259-2009

PLAINTIF SRI AWAD PENGANGKUTAN ENTERPRISE SDN BHD RESPONDEN 1) PETRONAS DAGANGAN BERHAD 2) KONSORTIUM LOGISTIK BERHAD

22/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=088e596c-8d65-46c3-9739-3824740d18fe&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 22-1259-2009 BETWEEN SRI AWAD PENGANGKUTAN ENTERPRISE SDN BHD .... PLAINTIFF AND 1) PETRONAS DAGANGAN BERHAD 2) KONSORTIUM LOGISTIK BERHAD .... DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial) [1] The Plaintiff (Sri Awad Pengangkutan Enterprise Sdn Bhd) is a private limited company carrying on the business of Liquefied Petroleum Gas (LPG) haulage and transport services. [2] The 1st Defendant (Petronas Dagangan Berhad) is a company in the business of marketing, trading and distributing petroleum products including Liquefied Petroleum Gas (LPG) for Petronas. [3] The 2nd Defendant (Konsortium Logistik Berhad) is a company which provides haulage and delivery services. [4] The case herein from the outset is a claim for damages arising from a breach of contract. Primarily, the Plaintiff in its Amended Statement Claim (A1) claims against the 1st and 2nd Defendants (“Defendants”) for a sum of RM17,864,168.00 or any other amount to be assessed by this Court and also a further sum of RM 3,825,000.00 allegedly suffered by the Plaintiff arising from the Defendants’ breach of contract. [5] The Plaintiff’s pleaded case is this; under the first (1st) cause of action, the First Defendant and Second Defendant had allegedly wrongfully terminated the Plaintiff’s services and that there was a fundamental breach of the Main Agreement entered between the Plaintiff and the First Defendant. Under the second (2nd) cause of action, the Plaintiff claims from both the Defendants for damages arising from an alleged failure to accept eight (8) units of road tankers and failure to pay for the usage of two (2) units from the eight (8 ) tanker units. [6] There is only one contract which forms the fulcrum of the Plaintiff’s claims against the Defendants in respect of the Plaintiff’s 1st cause of action. That of which being the Contract dated 1.10.2003 (“Sri Awad Agreement”) which signatories to the contract were the 2nd Defendant and the Plaintiff whereby the 2nd Defendant had contracted to provide transportation services to the Plaintiff. [7] The 2nd Defendant then allegedly was replaced by MISC Integrated Logistics Sdn Bhd (MILS) who took over the 2nd Defendant’s role and standing in the Sri Awad Agreement. [8] Albeit that there are other contracts which remain relevant to this dispute (which will be discussed further in this judgment) it is vehemently clear that the breaches so alleged by the Plaintiff heavily gravitates to the Sri Awad Agreement (regarding the 1st Cause of Action). [9] The 1st Defendant, alongside the Sri Awad Agreement, placed reliance on a preceding contract dated 15.8.2003 which signatories were the Defendants. (“KLB Agreement”) whereby the 2nd Defendant was appointed as the 1st Defendant’s Transportation Manager to provide transportation services to the 1st Defendant. It is abundantly clear from Clause 4.6(e) of the KLB agreement that the 2nd Defendant as Transportation Manager is merely an independent contractor and at no point in time shall be deemed as employees or agents of the 1st Defendant. [10] The nexus between the two contracts above is that the 1st Defendant decided to outsource its transportation needs and appoint specialized independent Transportation Managers to manage the transportation of the 1st Defendant’s Petroleum and/or Petroleum products under the KLB Agreement. The Plaintiff was one of the contractors and road tankers enlisted in the KLB Agreement (bundle H1, page 170). [11] Subsequently, the 2nd Defendant had entered into the Sri Awad Agreement to provide transportation services to enable the 2nd Defendant to manage and fulfil the transportation needs of the 1st Defendant. [12] The above brief facts roughly culminate the Plaintiff’s alleged 1st Cause of Action under the Sri Awad Agreement. [13] On the 2nd alleged cause of action of Plaintiff, the Plaintiff claims that it has entered into an agreement with the 2nd Defendant, alternatively the 1st Defendant as principal, where it was allegedly agreed that the Plaintiff shall supply tankers to the Defendants. The Plaintiff claims that the Defendants’ rejection and refusal to pay for the said tankers is a breach of this alleged agreement. [14] It must be noted that from the outset, there are no contemporaneous contract and/or agreement that was physically signed between the 1st Defendant and the Plaintiff. [15] The manner in which the Plaintiff purports to link the 1st Defendant to the alleged breaches is that the 2nd Defendant had entered into the Sri Awad Agreement as an agent of the 1st Defendant. The Plaintiff also alternatively, purports to link MILS to the 1st Defendant as its agent and therefore are liable as principal to MILS’ breach(es) (if any). [16] The breaches alleged are argued by the Plaintiff to be universally linked to both the Defendants. The Plaintiff pins the breaches against the 2nd Defendant as signatory and contracting party of the Sri Awad Agreement. On the other hand, the Plaintiff hinges the breaches against the 1st Defendant in the sense that they are the actual principal to the Contract. All throughout the trial and submissions, the Plaintiff had tenuously argued that the 1st Defendant is a party of the Sri Awad Agreement by way of principal-agent relationship as Principal to either the 2nd Defendant or MILS or even both. [17] The breaches under the Sri Awad Agreement forms the 1st alleged cause of action of the Plaintiff. Briefly, the breaches under the Sri Awad Agreement alleged by the Plaintiff against the Defendants are: (a) The Defendants have prematurely terminated the contract against Clause 6 of the Sri Awad Agreement which the Plaintiff alleges that the contract period was a minimum of 8 years. (b) The Defendants have wrongfully terminated the Sri Awad Agreement upon MISC’s alleged unlawful termination of the Sri Awad Agreement. [18] While on the 2nd alleged cause of action, the Plaintiff alleges the following breach against the Defendants: (a) The Defendants have breached an alleged Agreement for the supply of tankers which consequently had led to the Plaintiff’s losses and also default of a Hire Purchase Agreement entered into between the Plaintiff and MIDF. [19] Now, in determining the present dispute, the Court finds that the following are the material issues to be discussed. [19.1] In respect of the 1st Cause of Action: (a) Whether the 2nd Defendant an agent to the 1st Defendant? (b) Whether the 1st Defendant a party to the Sri Awad Agreement as Principal? (c) Was there a breach of the Sri Awad Agreement by the Defendants when the Plaintiff’s services were suspended and terminated? [19.2] In respect of the 2nd Cause of Action: (a) Was there a contract of supply of tankers between the Defendants and the Plaintiff? (b) Was there a breach of the alleged contract of supply of tankers by the Defendants? [20] The Court will directly discuss the Parties’ position and/or arguments and evidence forwarded in respect of each of the issues enunciated above and thereafter makes a finding of all those issues before making a decision determining this present dispute. Issues (a) and (b) of the 1st Cause of Action shall be dealt together [21] This first issue is immensely relevant to the dispute as it is the sole thread of nexus which the Plaintiff intends to draw against the 1st Defendant. The hypothesis is simple. If the 1st Defendant is the Principal of the 2nd Defendant, then the 1st Defendant is read into the Sri Awad Agreement which the 1st Defendant is not a signatory to. [22] The Plaintiff have at length argued and submitted evidences in proving such principal-agent relationship between the Defendants. [23] Before the Court delves into the masses of evidences in this regard, the Court would address the evidences submitted by the Plaintiff which are the pleadings and sworn testimonies of the witnesses called during trial. It is peculiar to note that the Plaintiff instead of submitting on any real documentary evidence supporting their contention had tenuously submitted on other extrinsic evidences outside of the contracts relevant to the dispute. [24] It is also noted that the Plaintiff’s submission in proving this essential contention is surprisingly brief in contrast of the voluminous testimony and evidences which was put to the test in the Court. In fact, in contrast to the 1st Defendant’s comprehensive submissions, covering a large extent of the trial, the Plaintiff have in a way abandoned much of its own contention and have left much of the 1st Defendant’s submission uncontested in the Plaintiff’s own reply against the 1st Defendant’s submission. This will be further addressed in this judgment. The Plaintiff’s reliance on the term “Principal” in the Sri Awad Agreement. [25] The Court intends to address the most significant documentary evidence to which all parties have relied onto. That of which are the KLB Agreement and the Sri Awad Agreement. [26] The Plaintiff’s submission on the Sri Awad agreement briefly is that the Sri Awad Agreement mentions of the 1st Defendant as a Principal and therefore is the actual contracting party to the Sri Awad Agreement with the Plaintiff. The Plaintiff’s stand is that it was understood by the Parties, at the time the Sri Awad Agreement was entered into, that the 1st Defendant is the principal whilst the 2nd Defendant is merely the agent of the 1st Defendant. The Plaintiff submits that the Sri Awad Agreement’s term was already clear and should be read to its natural meaning. [27] However, in the same Sri Awad Agreement, it is noteworthy that the 1st Defendant pointed out that the agreement has never defined which party is the agent. In fact, this Agreement never defined any party as an Agent. [28] Furthermore, against the Plaintiff’s contention, a plain further reading of the Sri Awad Agreement would instead not reflect any principal-agent relationship. The Plaintiff at length had submitted, in reference to the Notes of Evidence, that the Plaintiff’s witness, Dr. Awad, was at pains to draw the 1st Defendant into the Sri Awad Agreement in respect of payments under the Sri Awad Agreement. And the Court concurs. The witness was swerving left and right to avoid admitting the plain written terms of the contract. If the Plaintiff intends to submit on the strict interpretation of the contract, they are also bound to strict interpretation of terms which are not in their favour. This Court draws its attention to Clauses 7.3 and 7.5 of the Sri Awad Agreement and the Notes of Evidence Vol. 2, pages 30-33. Clause 7.3 clearly states that the party paying the services of the Plaintiff is the 2nd Defendant, and not at any time the 1st Defendant. The relevant portion of Clause 7.3 is reproduced below: “…in the event that after payment has been made by the company to the contractor…” [29] It is clear here that even the terms of the Sri Awad Agreement do not support the creation of Principal-Agent Relationship. It is devoid of any reconciliation and support that the Plaintiff could reasonably apprehend that there is any such relationship, when in plain words, the Plaintiff knew that the 1st Defendant does not pay them for its services. It is the 2nd Defendant. [30] In fact, against the alleged reasonable assumption by the Plaintiff, there is a barrage of oral and documentary evidences put forth in the Court which defeats such contention. In fact, Dr Awad in his testimony in fact readily admitted that the 2nd Defendant was an independent contractor. These evidences are addressed as follows. Terms in the KLB Agreement [31] The KLB agreement clearly stipulates that the 2nd Defendant is merely an independent contractor as per clause 4.6(e). For the sake of convenience, the clause is reproduced below (see Bundle H(1), page 17): “The Main Contractor is an independent contractor and neither the Main Contractor nor its employees, servants and agents shall be deemed to the employees or agents of the Company” [32] The term “Main Contractor” was already defined earlier in the KLB Agreement to be the 2nd Defendant while “Company” refers to the 1st Defendant. [33] From the outset, the 2nd Defendant has no standing to represent the 1st Defendant as principal. The meaning of “Principal” ascribed in the Sri Awad Agreement cannot have been intended to take the meaning of a principal in an agent-principal relationship, as it is already blatantly clear that the 2nd Defendant knows and was fully aware that they are not agent to the 1st Defendant and are merely independent contractors. [34] The Plaintiff against the KLB Agreement in the course of trial has argued that the 2nd Defendant had held out the 1st Defendant as the Principal. However, contemporaneous documents and testimonies indicate otherwise. There is no basis merely because the Plaintiff is not privy to the terms of the KLB agreement that the Plaintiff may reasonably assume or apprehend that the 1st Defendant was its Principal. The ground behind this preliminary finding is well-founded. Plaintiff’s incorrect/misconceived interpretation of clause 4.6(e) [35] It is also noted that the Plaintiff had forwarded its own interpretation of the clause. However, it must be understood that the interpretation afforded by the Plaintiff in their Reply Submissions against the 1st Defendant’s submission was on clause 4.6(e) of the Sri Awad Agreement and NOT the KLB Agreement (which was the submission of the 1st Defendant): “15.2 Similarly, the reference to clause 4 that deals with employment of labour (and the sub-clause 4.6 thereto), has no relevance on the proper construction thereof and also has no relevance to the Plaintiff’s dealings with the 1st Defendant as the principal (see pages 212 to 214 of Bundle B1)” (emphasis added) [36] Pages 212 to 214 of Bundle B1 are the pages where clause 4.6(e) of the Sri Awad Agreement is contained. NOT the KLB Agreement. [37] The Plaintiff is seemingly confused to the dispute at hand. On the other hand, based on the interpretation of Sri Awad Agreement’s clause above, the Plaintiff suddenly sought to defeat paras 103 and 104 of the 1st Defendant’s submission. (Which refers to KLB Agreement’s clause 4.6(e) and NOT Sri Awad Agreement’s clause): “103. Now if were to look at Clause 4.6(e) of the said KLB Agreement…” “104. It would necessarily follow that the 2nd Defendant cannot also than be an ‘Agent’ of the 1st Defendant in the context of the Sri Awad Agreement as the creation of an agency has been expressly excluded by virtue of Clause 4.6(e) of the KLB Agreement.” [38] This contention shall fail as the Plaintiff cannot equate a totally different clause to the clause which was referred to by the 1st Defendant. The two clauses are entirely different. Thus, it follows that even the literal interpretation of the two clauses would definitely differ. [39] Clause 4.6(e) of the KLB Agreement stipulates (difference is in bold, in brackets, italicised and underlined): “The (Main) Contractor is an independent contractor and neither the (Main) Contractor nor it employees, servants and agents shall be deemed to be the employees or agents of the Company” [40] Clause 4.6(e) of the Sri Awad Agreement omits and deletes the word “Main” above. [41] The Clause in the KLB Agreement makes an explicit reference to a “Main Contractor” which was defined in the same KLB Agreement to be the 2nd Defendant. [42] There is absolutely no reason or justification to instead ascribe the interpretation of the clause in the Sri Awad Agreement into the clause in the KLB Agreement. [43] This contention by the Plaintiff does absolutely no damage against the submission of the 1st Defendant. Plaintiff’s objection on clause 4.6(e) being unpleaded [44] The Plaintiff had submitted that the 1st Defendant ought not to be allowed to refer to clause 4.6(e) on the ground that it was unpleaded. However, the Court disagrees with the Plaintiff in this contention. It was already pleaded by the 1st Defendant the KLB Agreement and the assertion that the 2nd Defendant at all material times were never the 1st Defendant’s agents and are merely their independent contractors. [45] It was already contended by the 1st Defendant in their pleading that they intend to prove that the 2nd Defendant was merely independent contractors. Any facts in support of that assertion are merely evidence which need not be pleaded. The relevant paragraph is reproduced as follows: “6. The 1st Defendant contends and will contend that the relevant background facts in respect of this matter are as follows:… (d) Sometime on or about 15.8.2003, the 1st Defendant entered in an agreement with KLB, wherein the 1st Defendant appointed KLB as one of its Transportation Managers to provide road transportation services to the 1st Defendant (hereinafter referred to as “the KLB Agreement)”. (e) The 1st Defendant contends and will contend that the KLB was and is at all material times an independent contractor and at no time was it appointed as an agent of the 1st Defendant.” Plaintiff’s admission on the 2nd Defendant’s position as an Independent Contractor under the KLB Agreement [46] In fact, Dr Awad himself, the Plaintiff’s main witness has admitted that the 2nd Defendant is indeed an independent contractor as per clause 4.6(e) of the KLB Agreement. The relevant portion of the evidence can be found in Vol. 2, page 29 which is reproduced below: “MFM: The Plaintiff is actually an independent contractor based on this clause. AWAD: Yes.” Plaintiff never wrote to clarify on the parties’ position under the Sri Awad Agreement [47] The Plaintiff knowingly entering the Sri Awad Agreement, that the term “Agent” was never defined, and also to the fact that clause 7.3 of the Agreement, it is the 2nd Defendant is the party who pays for their services, it was admitted by Dr Awad that the Plaintiff had never at any point in time, written to any of the Defendants to clarify on the 2nd Defendant’s position as an agent or the 1st Defendant as Principal. Fully aware of the nature of the contract, the Plaintiff had never put a single effort in finding certainty of its own alleged understanding of the Agreement. The Court refers to the Notes of Evidence Vol. 1, page 32 reproduced below: “FMD: Yes, just please answer my question. Now is there any letters from the Plaintiff before this court, where the Plaintiff wrote to the First Defendant Petronas Dagangan Berhad, confirming that indeed the Second Defendant is an agent and has authority to enter into this contract with the Plaintiff? AWAD: No, I don’t have.” Plaintiff admits that they were merely sub-contractors [48] Not only that the Plaintiff has never enquired of it, but in fact, the Plaintiff themselves even admitted to the understanding that they were mere sub-contractors. “FMD: Dr Awad, this letter was sent by KLB to Sri Awad, clearly referring Sri Awad the plaintiff herein as a subcontractor. Not once, twice in the second last paragraph. My question is, did you at least at this point write to KLB to clarify their position vis a vis their contract with Petronas Dagangan Berhad? They just called you a subcontractor. AWAD: No I didn’t write. FMD: Did you at this point write to Petronas Dagangan Berhad to clarify KLB’s position; whether they were an agent or a main contractor? AWAD: No I didn’t write.” [49] There was a string of correspondences in which referred the Plaintiff as a sub-contractor and not even once the Plaintiff has come out and objected against it. All the four letters by the 2nd Defendant dated 21.11.2007, in pages 24 to 27 of Bundle B(2) contain the following paragraph: “Merujuk kepada perkara diatas dan keputusan mesyuarat pada 27 September 2007 adalah dimaklumkan bahawa sub-kontraktor KLB iaitu Sri Awad Sdn Bhd…” [50] The Plaintiff made no effort to object to them being referred to as sub-contractors. [51] It is clear that even the 2nd Defendant understood that the Plaintiff is merely a sub-contractor. [52] The array of compelling evidences against the Plaintiff’s contention does not end here. This Court will discuss these evidences as follows: (i) Claims Procedure for examination service rendered [53] Dr Awad under cross-examination admitted that claims for payment was directed to the 2nd Defendant and the claims were never copied to the 1st Defendant. This is clear in reference to the letters and supporting documents that the claims were made against the 2nd Defendant was the same was never copied to the 1st Defendant. “MFM: OK. And you told us that this document has been sent to KLB. Now look at it. Was this copied to my client? The First Defendant. AWAD: No. MFM: And this is how the submission is made for KLB to process the payment to the Plaintiff, correct? AWAD: Yes. MFM: Yes. And you produced this as an example as to how payments are effected between the parties, correct? Awad: Yes.” (ii) Reliance on averments in 2nd Defendant’s Affidavit as evidence [54] The Plaintiff had submitted that the 1st Defendant’s witness, DW-1 had acknowledged the 2nd Defendant’s Affidavit averring that the 1st Defendant is the Principal to its agent, the 2nd Defendant. However, there is not a single shred of reference to the Notes of Evidence forwarded by the Plaintiff in their submission in proving such acknowledgment by DW-1. [55] The 1st Defendant in their Reply Submissions has addressed this reliance by the Plaintiff. Peculiarly enough, albeit that the Plaintiff’s main contention is the existence of the alleged principal-agent relationship, neither the Plaintiff nor the 2nd Defendant have ever called the maker or deponent of the affidavit to testify in Court. We are inclined to agree with the 1st Defendant that the veracity of such cardinal evidence must be allowed to be tested. There were no reasons at all afforded by the Plaintiff on its failure to call the deponent of the affidavit to testify on the affidavit. There was also no proof that the Plaintiff at all made any effort, to its diligence to call the deponent of the affidavit. Be that as it may, the 2nd Defendant was denied of their application to call the deponent as witness subsequent to their choice not to offer evidence, there is nothing at all that restrains the Plaintiff itself to call the deponent to testify on the affidavit (of which the Plaintiff itself is relying onto). In fact, it was even admitted in the Plaintiff’s Reply Submission against the 1st Defendant’s submission that the Plaintiff itself had objected against the 2nd Defendant’s application to call the deponent to testify. It is verily peculiar how the Plaintiff intends to rely on the affidavit but at the same time it is also against the idea of the deponent to testify on the same piece of evidence that the Plaintiff relies upon. This is clearly an afterthought. [56] Furthermore, this Court finds that the submission of the Plaintiff in its reply that the 1st Defendant’s failure to call the deponent of the affidavit to disprove the averments is fatal to their case totally erroneous. It is trite law that “he who asserts must prove”. The onus to proof lies on the Plaintiff to prove such relationship. There is no basis at all that the onus has shifted to the 1st Defendant to disprove an assertion which was not yet proven by the Plaintiff. It is the Plaintiff who asserts the relationship, then the burden lies onto the Plaintiff to put forth all the relevant evidence to prove its assertion (inclusive of the affidavit relied upon, which the Plaintiff has not). If the Plaintiff itself did not forward such evidence, then at no point in time, the Defendant bears a burden to disprove. There was no failure at all on the part of the 1st Defendant. Instead, there was a failure on the part of the Plaintiff to call the deponent to testify in Court. It is plain and simple. The party who asserts must prove. Which in this case, it is the Plaintiff who must prove its assertion. [57] This Court is guided by the decision of Winslow J in the case of Eastern Enterprise Ltd v Ong Choo Kim [1969] 1MLJ 236 which reads: “I accordingly find that the Plaintiff have not discharged the burden of proving a case against the Defendant at the first place. No burden accordingly shifts to the Defendant…the Defendant would not have to disprove something which has not been proved against him”(emphasis added) [58] Moreover, this Court is guided by the recent decision of the High Court in the case of Oriental & Motolite Marketing Corp v Syarikat Asia Bateri Sdn Bhd [2012] 5 MLJ 87, para 29 to 31: “[29] Before I proceed further, I will deal with a preliminary objection raised by the defendant's counsel. In this regard, the defendant argued that the court cannot consider as evidence the affidavit of Minguel v Pingol (exh P3) and the affidavit of Roberto v Garcia (exh P4) submitted by the plaintiff through PW2 as this is contrary to s 73 of the Evidence Act. In relation to this, the plaintiff contended that: Section 73A of the Evidence Act 1950 which provides an exception to the rule that evidence must be tendered through a person who is called as a witness in the proceedings as follows: 73A Admissibility of documentary evidence in civil cases etc · (1) Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied: · (a) if the maker of the statement either: · (i) had personal knowledge of the matters dealt with by the statement; or · (ii) … And · (b) if the maker of the statement is called as a witness in the proceedings: · (ii) Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. [30] In this present case, both these witnesses were overseas in the Philippines and have deposed in their affidavits that they could not come at short notice to give evidence in person, due to the late amendment to the defendant's statement of defence two weeks before the trial. [31] In the light of the above reasons, I am satisfied that the pre-requisites in s 73A of the Evidence Act as to the admission of these affidavits of Roberto v Garcia, marked exh P4 and the affidavit of Miguel v Pingol, marked exh P3 have been fulfilled in accordance with s 73A of the Evidence Act and they can be taken into account as part of the evidence before this court.” [59] In the present case however, there is nothing at all submitted by the Plaintiff to satisfy any of the exceptions under Section 73A of the Evidence Act. In fact the Plaintiff itself objected on the application to call the deponent to testify on the affidavit. [60] Hence, it is the Court’s view that the Court ought not to simply admit such averments in the affidavit to be conclusive evidence that there was indeed a principal-agent relationship between the Defendants. (iii) Reliance on the 2nd Defendant’s pleadings as evidence to prove principal-agent relationship [61] The Plaintiff further attempts to prove such relationship from an alleged ‘admission’ of the 2nd Defendant of being the 1st Defendant’s agent. Against this contention, the Court from the outset would deem this contention fallible. It is not the law that mere pleadings are readily available to be deemed as conclusive evidence to a certain assertion. In fact, pleadings are supposed to be mainly factual with minimal evidences. This is on the trite understanding that even pleadings need be substantiated later in trial. [62] The Plaintiff had referred to the case of Marzaini v Majlis Peguam Negara [2007] 8 MLJ 697 in supporting its contention. However, a plain reading of the case reveals that the case is clearly distinguishable to the present case. In Marzaini’s case, the admission referred to in the case is an admission by a solicitor on the account of misconduct which was made during the disciplinary board hearing. At no point in time the case was referring to pleadings as an admission. It is too far-fetched to equate a pleading to be an admission binding against the party admitting. Marzaini’s admission during the disciplinary board hearing is indeed evidence. However, it is trite law that mere pleadings are NOT evidence. The Court is guided by the case which was referred to by the 1st Defendant, Ng Ben Thong & Ors v Krishnan a/l Arumugam [1998] 5 MLJ 579: “Pleadings is (sic) not evidence. It is a bare averment of a party’s case. The party has to adduce evidence to substantiate its pleadings. Whilst pleadings cannot become evidence in the absence of evidence being led in court, similarly evidence cannot be led outside pleadings” [63] In fact, the case is distinguishable in another aspect. In Marzaini, an admission was effected against the person who made the admission and not against another party. This is utterly incoherent with the present case. What the Plaintiff purports to draw is that the supposed admission by the 2nd Defendant is equally enforceable against the 1st Defendant who did not make such admission. [64] Thus, it is this Court’s judgment that the Plaintiff’s reliance upon the 2nd Defendant’s pleadings as an evidence of admission, cannot and will not stand. (iv) Alleged ‘Direct Correspondences’ [65] The next piece of evidence that the Plaintiff relies upon in their submission is the supposed direct correspondence that the Plaintiff has with the 1st Defendant. Now, it must be noted that the Plaintiff, has by their own submission, narrowed these alleged correspondences only to one letter of termination by MILS dated 18.7.2008 (see Bundle B1, page 63 – 64). And this position taken by the Plaintiff is consistent even in its reply against the 1st Defendant’s submission. There are no other letters referred to by the Plaintiff in attempting to prove the alleged principal-agent relationship to bind the Sri Awad Agreement against the 1st Defendant. It seems that the Plaintiff opted to abandon all other letters mentioned in their own Statement of Claim in para 7(b). Even after the 1st Defendant has addressed those letters in their submission, the Plaintiff never took liberty to answer to their submissions. These letters submitted by the 1st Defendant shall be addressed later in this judgment. This Court shall first address to this sole letter referred to in the Plaintiff’s submission. (a) MILS’ Termination Letter dated 18.7.2008 [66] The 18.7.2008 letter is the Termination Letter by MILS to the Plaintiff. Indeed the content of the letter did refer the 1st Defendant as a principal. And on this basis the Plaintiff submits that it is the parties’ common understanding that the 1st Defendant is the Principal. The counsel for the Plaintiff further submitted that, in fact the letter was never replied by the 1st Defendant albeit being copied the letter. [67] Now against this contention, as had been discussed in the numerous findings above, there is no justification at all that the Plaintiff may apprehend that the 1st Defendant is a Principal. Although being referred to as a Principal in this letter, it is overwhelmingly compelling that the parties (especially the Plaintiff and 2nd Defendant) have already understood, in full awareness that the 1st Defendant is not in any point in time a Principal. [68] Furthermore, the Court agrees with the 1st Defendants Reply Submissions against the Plaintiff’s Submissions that there is no reason at all for the 1st Defendant to reply the letter as it was never directed to the 1st Defendant. It was merely copied to them. (b) 1st Defendant’s letter calling for the registration of all transportation operators dated 23.11.2007 [69] This is one of the letters which was referred to in the Plaintiff’s own pleading and was also not at all submitted in its submission. It is peculiar to note that the Plaintiff themselves are unconvinced by their own pleading that they opt to abandon the contention in their submission. And even in the Plaintiff’s reply to the 1st Defendant’s submission, after the 1st Defendant had addressed the letter, the Plaintiff had never made any contention against it. [70] The 1st Defendant’s letter dated 23.11.2007 at Bundle B(1), page 40 is a letter calling for all of the 1st Defendant’s Transportation Operators to register with the 1st Defendant which was sent to the Plaintiff. The Plaintiff took this letter as an evidence to prove direct correspondence with them in consequently proving the alleged direct relationship as Principal. However, the Court is in agreement with the submission of the 1st Defendant which is more plausible. A plain reading of the letter is sufficient to reveal that the letter was addressed not just to the Plaintiff, but to all Transportation Operators. The opening of the letter reads: “Kepada semua Kontraktor Perkhidmatan Pengangkutan Pukal Bahan-bahan Petroleum di Semenanjung, Sabah dan Sarawak” [71] Regarding the above, the 1st Defendant’s witness, SD-1 has testified the following evidence which was never challenged during cross-examination: “A: As I said earlier, the 1st Defendant’s letters to the Plaintiff were nothing more than replying to the Plaintiff’s Letters which were directly issued to the 1st Defendant. In addition, some of the letters were not written to the Plaintiff directly. For example the 1st Defendant’s letter dated 23.11.2007 at p. 40 of BOD, Part A, marked as B-1, was not specifically addressed to the Plaintiff but was addressed to all transportation operators (both contractors and subcontractors) of the 1st Defendant. In this connection the 1st Defendant had asked all its transportation operators, whether directly or indirectly having business with the 1st Defendant to register with PETRONAS. The registration of the 1st Defendant’s contractors and sub-contractors do not automatically create a contractual relationship between the 1st Defendant and them but is merely for identification, security and administrative purposes, as these sub-contractors in carrying out their role would invariably enter the 1st Defendant’s premises for loading of products etc.” [72] Thus, this letter cannot at all be considered as any evidence to prove direct business relations or Principal-Agent relationship to deem the 1st Defendant a Principal in the Sri Awad Agreement. Court’s findings [73] In cognizance of all the aforementioned evidences and submissions by the parties, the Court finds that there is never in existence at any material times, a Principal-Agent relationship between the Defendants. Clearly in contrasting and analyzing the testimony of the witnesses and the contemporaneous documents discussed above, the Plaintiff could have never apprehended that the 2nd Defendant is the 1st Defendant’s agent and the 1st Defendant is the principal in the Sri Awad Agreement. The Court is guided by the Court of Appeal decision in the case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97: “A Judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence of a witness. He must when deciding whether to accept or reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of a motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against probabilities of the case. A trier fact who makes findings based purely upon demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.”( emphasis added) [74] The mass of evidence discussed above is exceptionally overwhelming to indicate all parties are in total and common understanding, that in any correspondences and/or contracts, that the 2nd Defendant is never an agent of the 1st Defendant. It was even admitted by the Plaintiff’s own witness, Dr Awad himself that he recognizes the 2nd Defendant as an independent contractor. [75] And in this common understanding, specifically the Plaintiff, who had no reason to apprehend that the 2nd Defendant was the agent to the 1st Defendant is fully aware that the 1st Defendant is not the Principal in the Sri Awad Agreement. Thus, the Plaintiff cannot now go against that state of understanding. The Court is guided by the case referred to by the 1st Defendant where the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 had referred to Lord Denning’s decision in the case of Amalgamated Investment and Property Co. Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84 which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” [76] Furthermore, a plain reading of both the Sri Awad and KLB Agreements would denote that there was never intended a formation or creation of Principal-Agent Relationship. [77] Consequently, as the 2nd Defendant was never an agent of the 1st Defendant, it is vividly clear that the Plaintiff had never entered into any contract with the Plaintiff, especially the Sri Awad Agreement. [78] Thus, any breaches against the Sri Awad Agreement (if any) are by no means attributable to the 1st Defendant. Issue (c) of the 1st cause of action: Was there a breach of the Sri Awad Agreement by the Defendants when the Plaintiff’s services were suspended and terminated? [79] The Court finds that it is imperative to delve further into the background underlying MILS’ involvement in the dispute. Further Background [80] It was alleged that MILS sometime or about 31.1.2008 had taken over the 2nd Defendant’s position and role as Transportation Manager. However, the Plaintiff submits that at no point in time had the Plaintiff agreed or acknowledged the replacement. [81] The said withdrawal of the 2nd Defendant and the appointment of MILS had been informed by the 1st Defendant to the Plaintiff via the 1st Defendant’s letter dated 30.1.2008 (“Appointment Letter”) (Bundle B1, page 395) [82] In furtherance of this replacement, the 1st Defendant entered into another contract with MILS on 11.7.2008 (“MILS Agreement”) which is similar to the KLB Agreement. (See Bundle B5, pages 272 – 433). [83] The Plaintiff’s tankers in pursuant to the Sri Awad Agreement had met with two road accidents. The 1st accident being on 2.4.2008 carries fatal consequences and claimed the lives of 2 motorists including a four year old child. The 2nd accident on 12.6.2008 has resulted in the spillage of approximately 14,560 liters of the 1st Defendant’s Primax 3 petroleum product. - See Bundle B4, page 157 for the Incident Notification Form of the 2.4.2008 accident - See Bundle B5, page 229 for the Incident Summary of the 12.6.2008 accident. (It must be noted that the Plaintiff never contended and/or disputed against the occurrence and details of the accidents) [84] As a result of the 1st and 2nd accidents (“the accidents”) MILS had suspended the Plaintiff’s services via their letter dated 13.6.2008. (see Bundle B1, page 398). [85] In response to the accidents a meeting was conducted to discuss inter alia the suspension of the Plaintiff’s services on 4.7.2008. (See Bundle B1, pages 56 to 58.) [86] In furtherance of the meeting held above, MILS wrote to the Plaintiff that it considers uplifting the suspension subject to the compliance of four conditions by the Plaintiff. (See MILS’ letter dated 7.7.2008 at Bundle B1 page 59.) The four conditions being: “1. Enforce full implementation of GPD of PDB’s choice, complete with testing and submission of relevant report; 2. Attend Safety Passport refresher training for all drivers; 3. Comply to the requirement for road parking at MILS central parking; and 4. Implement a salary scheme as determined in Attachment 1 hereof.” [87] Thereafter, in reply to MILS’ letter dated 7.7.2008 above, the Plaintiff expressed in their letter dated 11.7.2008 that they were unable to comply with the conditions. (See Bundle B2, pages 30 – 31). [88] Consequently, through a letter Termination Letter dated 18.7.2008 MILS had furnished notice of termination of the Plaintiff’s services due to the Plaintiff’s inability to comply with the Conditions imposed above. (See Bundle B1, page 63.): “With your inability to adhere to the condition requested by us, we see that you are no longer interested to continue with the services. As such, we hereby serve you notice that your services as the transporter of bulk petroleum for PDB is no longer required.” [89] However, it must be noted that even in the Plaintiff’s own submissions, that it is not disputed that the termination was conducted by MILS themselves. Only that, it was argued further by the Plaintiff, that the termination was done on the pretense that it was consented and directed by the 1st Defendant. [90] The alleged breaches of the Sri Awad Agreement claimed by the Plaintiff are as follows: (a) There was no notice of termination of the Sri Awad Agreement by the 2nd Defendant as provided under clauses 8.1, 8.2 and 8.3 of the Sri Awad Agreement. (See Bundle B1, pages 217 – 219.) Thus, allegedly the Sri Awad Agreement remains subsisting. (b) There was no justification for the termination of the Sri Awad Agreement by the Defendants. (c) The termination made by MILS through their termination letter is a wrongful termination as MILS has no rights under the Sri Awad Agreement to terminate the Agreement. (d) Although the 1st Defendant has appointed MILS to replace the 2nd Defendant, the Plaintiff has never entered into any contract with MILS. (e) The Defendants has breached clause 6 of the Sri Awad Agreement as the minimum contractual period of 8 years was not adhered to. [91] Now, before the Court addresses each of the above breaches alleged, there are two preliminary issues under this cause of action that is essential to be determined. (a) Is MILS an agent to the 1st Defendant? (b) Was MILS the 2nd Defendant’s valid replacement as Transportation Manager subsequent to the 2nd Defendant’s withdrawal? Is MILS an agent to the 1st Defendant? [92] It is the submission of the Plaintiff that the termination of the Sri Awad Agreement was conducted by MILS as agent of the 1st Defendant. From the outset, this Court totally disagrees with this contention. There is an abundance of evidence which indicates that MILS is merely an independent contractor and it was in the knowledge and awareness of the Plaintiff that MILS is not agent of the Plaintiff. [93] First and foremost, the MILS agreement contains the same provision as the KLB agreement. Specifically clause 4.6(f) of the MILS Agreement is of the same construction of clause 4.6(e) of the KLB Agreement: “The Contractor is an independent contractor and neither the Contractor nor its Driver(s), employees, servants and agents shall be deemed to be the employees or agents of the Company” [94] The Company being defined as the 1st Defendant and Contractor to be MILS. (See Section 1 of the MILS Agreement at Bundle B5, page 280) [95] Thus, echoing the same finding earlier, it is already clear from the MILS Agreement that MILS is merely an independent contractor. Other evidences [96] Now, by and large, against the Plaintiff’s contention that MILS is an agent of the 1st Defendant, and that the appointment of MILS is invalid, what transpired in Court reveals that the Plaintiff is in dire straits to draw this agency relationship. [97] Even the Plaintiff’s own submission after full trial only has a fleeting statement that the Termination Letter by MILS was issued on the direction and consent of the 1st Defendant. And that was the only argument made in the submission. The Plaintiff seemingly opted to not address the contentions which were put forth in Court during trial. Albeit that it may be unfavourable against the Plaintiff, but it is surprising that the Plaintiff made no attempt at all to provide justification or even an inkling of reconciliation to their contention. The following are the contentions which were instead raised by the 1st Defendant (at length) which was not addressed or to an extent abandoned by the Plaintiff: (a) The Plaintiff does not have proof that they claimed for payment directly to the 1st Defendant as Principal rather than MILS (See 1st Defendant’s Written Submission, page 80) (b) The Plaintiff vide its own letter dated 7.7.2008 admitted that MILS is the party making payment for their services. (See 1st Defendant’s Written Submission, page 80 to 84) (c) The Plaintiff itself made claims for payment against MILS rather than the alleged Principal, the 1st Defendant. (See 1st Defendant’s Written Submission, page 84 to 87) [98] And it must be further noted that even in the Plaintiff’s Reply against the 1st Defendant’s Submissions the Plaintiff never bothered and eschewed from even attempting to justify or reconcile the above contentions. The Plaintiff does not have proof that they claimed for payment directly to the 1st Defendant as Principal rather than MILS (see 1st Defendant’s Written Submission, page 80) [99] As correctly pointed out by the 1st Defendant and as admitted by Dr Awad in his own evidence, the Plaintiff against its own contention that they had claimed for payments directly against the 1st Defendant, had instead admitted to not having proof of this contention. The relevant portions of the cross-examination are reproduced below: “MFM: We heard that. My question is if you would care to listen. Maybe you could answer it. My question is, having not been paid for your services rendered, as you claim now in court. For 2008, I provide my transportation services, I was not paid. Surely you would have at least written a letter to MILS or to PDB saying I have not been paid AWAD: I submit claim to Petronas. I submit the claim. MFM: Where is the evidence of your claim submitted to Petronas or PDB, I want to see? AWAD: It’s a claim submitted to Petronas. MFM: Where is it? AWAD: I don’t have it with me. MFM: You don’t have it. Neither do you have any letters as you claim now you have not been paid; neither do you have any letters you wrote to MILS or PDB saying that you have not been paid. AWAD: Well, I don’t have it here with me really. MFM: You don’t have it with you? AWAD: No.” [100] The above excerpt of the cross-examination plainly shows that the Plaintiff has no proof at all that it has made claims against the 1st Defendant for payments as a supposed Principal to the Agreement. The fact that this was not addressed at all even in the Plaintiff’s reply further supports the plausibility of the 1st Defendant’s contention that MILS is not its agent, at least in this respect. The Plaintiff vide its own letter dated 7.7.2008 admitted that MILS is the party making payment for their services. [101] It was submitted by the Plaintiff that the Plaintiff in its own letter to the 1st Defendant dated 7.7.2008 had admitted that MILS is the party who makes Payment to the Plaintiff for its services. Here, the 1st Defendant draws a glaring contradiction between the testimony of Dr Awad and the Plaintiff’s letter dated 7.7.2008. On one hand, Dr Awad’s testimony was that claims for payment were made directly against the 1st Defendant, Petronas, but on the other hand, the Plaintiff’s own letter admitted that payment should be made by MILS instead. Indeed, the contradiction is glaring. The admission that MILS was the supposed party making the payment in the letter reads. “Now that we are under the flagship of MILS perhaps with the same structure except with a different smell. It is indeed stinking as to date MILS have not been able to pay us in time…” “It seems and it appears that… and because of MILS incompetence we are somewhat getting paid now between 45 days and some extent 90 days” (emphasis added) [102] The discrepancy is obvious. It is utterly devoid of logic and reason since the Plaintiff asserts that it claims directly to the 1st Defendant as Principal (which they admitted to have no proof of) and instead admits that payment is expected to be made by MILS, and the duty to pay is borne against MILS. [103] Again, this contention was not addressed at all in the Plaintiff’s Submissions and Reply Submissions against the 1st Defendant’s Submissions. The Plaintiff itself made claims for payment against MILS rather than the alleged Principal, the 1st Defendant. (See 1st Defendant’s Written Submission, page 84 to 87) [104] In the same letter, the 1st Defendant submits that it is telling that against the Plaintiff’s contention that claims for payments was made to the 1st Defendant, the fact that the Plaintiff in its own letter admitted to expect payment from MILS is proof that the Plaintiff must have instead claim against MILS and not the Plaintiff. 105] Indeed, logically and reasonably so, the only reason that the Plaintiff admittedly expects payment from MILS is because the Plaintiff has made claims against MILS. [106] We do agree with the 1st Defendant, that this Court ought to take Dr Awad’s testimony with caution. The contradictions are clear and were not addressed in the Plaintiff’s own submissions. Court’s preliminary finding [107] Thus, in consideration of the above submissions and evidence, it is ultimately compelling that MILS is never at all material times the agent of the 1st Defendant. [108] The contemporaneous documents (inclusive of the Plaintiff’s own letter dated 7.7.2008, and the MILS Contract) together with the express conduct of the Plaintiff above, draws the compelling conclusion that MILS is not an agent and are mere Independent contractors of the 1st Defendant. The Plaintiff had conducted itself in the business and contract in this understanding. [109] And the Plaintiff herein, is estopped to now deny the above. The Court is again guided by the Federal Court’s decision in the Boustead Case referring to Lord Denning’s decision. Was MILS validly replaced as Transportation Manager subsequent to the 2nd Defendant’s withdrawal? [110] Now, it is plain that even the aforementioned finding would find the issue herein is in the affirmative. The Plaintiff itself admitted to have been “under the flagship of MILS” in its own letter. Not only that, it had admitted that MILS is the party to pay for its services and not the 1st Defendant. [111] However, the Court is of the view that the Defendants’ further contention on the validity of the MILS’ appointment must be addressed for the sake of completeness. [112] It is the submission of the Plaintiff that it has strenuously and continuously objected to the MILS’ appointment. The Plaintiff has afforded a few grounds supporting this contention namely that: (a) The Plaintiff never admitted and acknowledged MILS’ appointment as the new Transportation Manager replacing the 2nd Defendant. (b) The 2nd Defendant has failed to prove that it has withdrawn from its services as Transportation Manager. [113] Nevertheless, the Defendants have forwarded to Court, an abundance of evidences by documentary proof and of the Plaintiff’s conduct to reveal a totally opposite conclusion against the Plaintiff’s contention here. Plaintiff has received and has never objected against the Appointment Letter [114] The 1st Defendant submitted that the Plaintiff itself had admitted to accepting to the Letter Notifying of MILS’ appointment dated 30.1.2008 by the 1st Defendant and not forwarding even a single response or objection against that letter. The Appointment Letter clearly reads: “Merujuk kepada perkara di atas, dukacita dimaklumkan bahawa pihak Konsortium Logistik Berhad (KLB) telah menarik diri dan tidak menerima tawaran kontrak tersebut di atas. Sehubungan itu, pihak PETRONAS Dagangan Berhad (PDB) dengan in telah melantik MISC Integrated Logistics Sdn Bhd (MILS) sebagai Kontraktor Utama untuk mengurus syarikat tuan mulai 1 hb Februari 2008.” (emphasis added) [115] And the Plaintiff’s witness Dr Awad has admitted to accepting the Appointment Letter and not responding to it at all. “MFM: Yes, Thank you. Now, my next question having said that you are unhappy, fearful of losing money, having no choice, fearful of breaking your contract with KLB which you say is still continuing, did you write a single letter either to KLB or MILS or Petronas, or PDB rather, in response to this letter dated 30.1.2008? AWAD: Counsel, I am going to. MFM: Just answer my question please AWAD: I am going to answer you. I am going to answer you, ok. MFM: Did you write a single letter? AWAD: I didn’t MFM: Either to PDB or MILS or KLB, in reply to this letter dated 30.01.2008? AWAD: I didn’t write a letter, but I refused to sign the contract.” The Plaintiff never complained of MILS’ Appointment at least for 6 months after MILS’ appointment and before its letter dated 7.7.2008 [116] The 1st Defendant had also submitted that for at least 6 months after the Appointment was made, the Plaintiff had never even once written in protest against the appointment. [117] Dr Awad himself admitted during cross-examination the following: “MFM: So the point that I, to the question that I was asking just now, prior to 07.07.2008, six months preceding that right, there is not a single letter to PDB or MILS or KLB complaining about either the role of MILS or the non-payment to the Plaintiff or any such complaint? AWAD: No.” [118] It is apparent that the Plaintiff has never expressed any qualms against the appointment of MILS and had continued to procure services per usual. The Plaintiff opted to continue with business per usual after MILS’ Appointment [119] The 2nd Defendant alluded to Dr Awad’s cross-examination reproduced below where he has admitted to continue to provide services even after MILS’ appointment: “MFM: So, you made a choice, Dr Awad, to carry on because otherwise it would cost you a lot of money? AWAD: Because, as far as I concerned. MFM: Answer my question, please. AWAD: Sorry MFM: So you made a choice to carry on because otherwise it would cost you a lot of money. AWAD: Yes, to make it…” “MFM: But what you did instead Dr Awad, or rather what the Plaintiff did instead was to carry on its business as usual. AWAD: With my principal MFM: Doesn’t matter with who. Plaintiff carried on the business as usual. AWAD: Yes, with my principal.” [120] Considering the above excerpt, as had been found earlier, the 1st Defendant is never the Principal of the Plaintiff. Thus, when the Plaintiff admitted to continue to give services, it means that the Plaintiff had provided services to MILS. The misconceived assumption by the Plaintiff is irrelevant and does nothing to defeat the fact that the Plaintiff admitted to have continued to carry on business as per usual even after MILS’ appointment. The Plaintiff admitted to receive instruction from MILS [121] Despite the Plaintiff’s staunch yet tenuous contention that it has never approved of MILS’ appointment, it is peculiar to note that Dr Awad had instead admitted to have taken instructions from MILS. “ATW: So, despite me asking you and you confirmed that you do not take instructions nor correspond with MILS, or you don’t have. Yes or no only. Do you take instructions from MILS? YA: No. Mr. Arthur, you just let him answer, have you ever written letters to MILS. That’s it. AWAD: Yes, after April we take instructions from them. YA: Yes AWAD: After April 2008. YA: Ok. The answer is yes.” [122] The 2nd Defendant’s case is absolutely on point in pointing this admission out. Clearly, the Plaintiff acknowledged the authority of MILS. Otherwise, it would have not accepted their instructions. Plaintiff’s admissions in its Letter in Response to Suspension dated 7.7.2008 [123] Both of the Defendants have contended on this letter. A plain reading of this letter unravels a line of admissions that the Plaintiff has indeed acknowledged MILS as the new Transportation Manager replacing the 2nd Defendant. The relevant excerpts of the letter are discussed below: (a) Firstly, the Plaintiff themselves admitted that they are now under the management or “flagship” of MILS. “Now that we are under the flagship of MILS perhaps with the same structure except with a different smell.” (b) The Plaintiff also admitted that MILS is expected to pay them for their services. “It is indeed stinking as to date MILS have not been able to pay us in time…” (c) Upon the Plaintiff’s admission on expecting MILS’ payment, it is reasonable to infer that the Plaintiff submits its claim to MILS and not to the 1st Defendant as alleged Principal. Plaintiff’s acknowledgment of MILS’ authority in its letter dated 11.7.2008 (see Bundle B2, page 31) [124] This letter was issued by the Plaintiff in reply of MILS’ letter for compliance of the four conditions by the Plaintiff. However, a plain reading of the letter would reveal that the Plaintiff was docile and was never in protest of MILS’ authority to impose such conditions. The Plaintiff has even considered and appealed for alternatives and decision from MILS. The Plaintiff wrote: “As such we appeal for a well thought through decision and choices and fair policies as we are a vendor for the national oil company and would contribute for the nation and out growth with the help of your organization” (emphasis added) The Plaintiff admitted that it has not written anything to protest the authority of MILS to suspend their services [125] It was submitted by the 1st Defendant, and was never addressed by the Plaintiff in their reply, that Dr Awad has during cross-examination, admitted to have not written anything to protest MILS’ authority to suspend their services upon receiving the letter of suspension. The excerpt of the cross-examination is as follows: “MFM: Yes, ok. So even when you received this letter for suspension by MILS, you did not challenge MILS’ authority to suspend the Plaintiff? AWAD: I had nothing to do with them. MFM: You had nothing to do with them? AWAD: I have nothing to do with MILS. I don’t have any problem. MFM: And did you write to them to tell them that you had nothing to do with them? AWAD: Well, you see the suspension on the 13.06.2008. MFM: Did you write to them to tell that you had nothing to do with them? AWAD: I didn’t write to them because even they have not signed contract yet. They signed contract on 11.07.2008 and they suspend me even before that. MFM: Dr Awad, did you write to them to tell them you have nothing to do with them. AWAD: I didn’t write to them. I didn’t write to them, no. I didn’t write to them.” Court’s Finding [126] The Plaintiff vehemently submitted that the 2nd Defendant was not validly replaced by MILS. [127] In arguing this contention, the Plaintiff had spawned arguments as to the failure of the 2nd Defendant to prove that there was any withdrawal by them. And that the 2nd Defendant had failed to prove that the withdrawal was given consent by the Plaintiff. [128] All along the Plaintiff also conjured some arguments that the 2nd Defendant cannot submit evidences as they had opted to not lead evidences. This was mainly the reply of the Plaintiff against the 2nd Defendant’s submission. [129] However, against the same contention, this Court would ask this rhetorical question. If on the same argument the Plaintiff objects to the evidences of the 2nd Defendant, how could the Plaintiff then, in its venture to prove the Principal-Agent relationship, relies upon the evidences of the 2nd Defendant in its affidavit? Surely that would be unjust. The Plaintiff cannot be allowed to simply opt to use an argument while denying the Defendants to adopt a similar argument. [130] Nevertheless, even assuming that the 2nd Defendant retains no right to put forth some of their arguments, the evidences from contemporaneous documents, (being the Plaintiff’s own letters dated 7.7.2008 and 11.7.2008), admissions of Dr Awad in its testimony and the overall conduct of the Plaintiff lacking in any form of protest in fact, conducting themselves in support of the appointment of MILS (in continuing to provide services) draws the sublimely overwhelming inference and conclusion that, parties have continued to deal in their business with a common understanding that MILS is and was at all times a valid replacement to the 2nd Defendant. [131] And on the same authority of the Boustead Agency case, the Plaintiff is now estopped from denying this state of understanding. [132] Thus, it is in the Court’s view that MILS was rightfully appointed to replace the 2nd Defendant. The services of the 2nd Defendant were put to an end and its roles and standing was replaced with that of MILS. Breaches not attributable to the Defendants [133] Now, it entails from the earlier findings, namely: (a) MILS is not agent to the 1st Defendant and is merely an independent contractor; (b) MILS was validly appointed and has replaced the 2nd Defendant in its role and standing; and (c) the 2nd Defendant’s services is validly terminated and replaced with MILS that assuming, that even hypothetically there is any breach of the Sri Awad Agreement, by no means at all that the breach is attributable to any of the Defendants. [134] With the finding that MILS is rightfully appointed and acknowledged by the Plaintiff as sub-contractor of MILS, there is no room at all to link any breaches (if any) to any of the Defendants. [135] It was already found that it was MILS who had suspended and terminated the Plaintiff’s services in its own stead and none others. Thus, any breach of the Sri Awad Agreement, is the personal liability of MILS and not any time the Defendants’. [136] The Plaintiff has sued the wrong parties in this action. [137] Thus, the failure to bring MILS as a party to the dispute is fatal to the Plaintiff’s case. [138] Nevertheless, for the sake of completeness, the Court will allude to the breaches alleged but only on the pretext of MILS’ liability and not the Defendants’. There was no notice of termination of the Sri Awad Agreement by the 2nd Defendant as provided under clauses 8.1, 8.2 and 8.3 of the Sri Awad Agreement. (See Bundle B1, pages 217 – 219.) Thus, allegedly the Sri Awad Agreement remains subsisting. [139] Now, the 1st Defendant first submitted against this contention that the propriety of the Notice of Termination is non-issue in this dispute as it was not the pleaded case of the Plaintiff. And the Court agrees. The Plaintiff had specifically and meticulously specified and particularized the manner of breaches of the Sri Awad Agreement. And there was never a single mention of Clause 8 and/or its sub-clauses. The Plaintiff never pleaded that the Notice of Termination was improper. The Plaintiff’s pleadings are reproduced below: (see Bundle A, page 37) “PARTICULARS OF THE WRONGFUL TERMINATION OF THE PLAINTIFF’S SERVICES BY THE FIRST DEFENDANT (OR IN THE ALTERNATIVE BY THE SECOND DEFENDANT) UNDER THE FIRST CAUSE OF ACTION First Defendant (or in the alternative by the Second Defendant), had failed and/or neglected in the following: a) Failure to stop MILS, whom at all material times was acting as an agent to the First Defendant, from suspending the Plaintiffs services. b) Failure to withdraw all suspension of services done by the said MILS, whom at all material times was acting as an agent to the First Defendant, albeit knowing that the suspension was wrongfully done. c) Failure to adhere to Clause 11.5 of the Main Agreement which MILS, whom at all material times was acting as an agent to the First Defendant, when terminating the Plaintiff’s services under the accident issue as stated in paragraph 12 above.” d) Failure to consider all the practical efforts taken by the Plaintiff as stated in paragraph 12 above.” [140] It is apparent that the Plaintiff had even taken the liberty to identify the clause in which the Plaintiff intends to rely upon (clause 11.5). And it is clear that the propriety of the Notice of Termination under Clause 8 is not included in the Particulars of Breach. Thus, the Court’s hand is in a bind and the Court cannot discuss an issue which was not pleaded. [141] Thus, as the Notice of Termination remains unchallenged, what are left to be discussed are only the grounds which forms the spine of the termination. There was no justification for the termination of the Sri Awad Agreement by the Defendants. [142] Now, it was vehemently submitted by the Plaintiff that MILS or the Defendants retains no right to terminate the Sri Awad Agreement. The Plaintiff placed heavy reliance on clause 11.5 of the Sri Awad Agreement: “11.5 The Contractor shall terminate the employment of its driver who commit one or more of the following offences:-…” [143] However, this Court finds that reliance on the above clause 11.5 is verily an inaccurate application of the Sri Awad Agreement with the given facts of the case. [144] The reason being that clause 11.5 is specific to the termination of drivers of Sri Awad in the event one of the long line of offences was committed by the driver(s). [145] However, the present case at hand does not deal with the termination of the driver at all BUT THE TERMINATION OF THE CONTRACT (SRI AWAD AGREEMENT) ITSELF. [146] Hence, the proper clause to be applicable would be clause 8 of the Sri Awad Agreement which governs the terms for termination of the contract. [147] And in agreement with the 1st Defendant’s submission that the proper litmus test on the justifiability of the termination by MILS is to apply clause 8 of the Sri Awad Agreement, particularly clause 8.1 (d). (see Bundle B1, page 218): “8.1 Notwithstanding other provision in the Contract and without prejudice to any other remedies, which the Company may have against the Contractor, the Company has the right to terminate this Contract at any times by giving (30) days prior notice in writing to the Contractor in the event:… d. The Contractor is prevented from any cause whatsoever or fails to perform his obligations under this Contract due to the acts, omission or negligence of its employees, servants or agents;or” [148] Now, in the present case, the drivers of the Plaintiff were involved in two separate accidents which caused fatalities and also losses to the MILS. Indeed, in the meaning of the clause above, the Plaintiff ‘ fails to perform his obligations’. [149] The Plaintiff themselves, upon the 1st fatal accident had already admitted that it is caused by the negligence of its drivers: “MFM: And could I see the findings by the Plaintiff into this accident? What did, you disagree with MILS report, but what is the Plaintiff’s findings as to the cause of the accident? AWAD: Accident is negligence on the driver’s side. [150] While with regards to the 2nd accident where it was caused by the Plaintiff’s driver deviating from the established route, the Dr Awad himself admitted that it was indeed a breach of the Sri Awad Agreement: MFM: Yes, not without the authority of the company deviate from established route for unnecessary park, stop the vehicle. So my question is, based on this KLB agreement that the Plaintiff has been KLN, it is a breach of the agreement of the Plaintiff want to deviate from the established routes. It says that so, you know it says so that. AWAD: I agree with you. [151] Now notwithstanding if the 2nd accident is not admittedly a negligence, it does not defeat the admission that it is indeed a breach of the Sri Awad Agreement. [152] And even for a moment, assuming that the 2nd accident is not a ground to terminate the Sri Awad Agreement (which the Court finds it is), the 1st accident is reported and is admitted to be caused by the Plaintiff’s driver’s negligence. And on that basis alone, MILS is justified to invoke clause 8.1(d) of the Sri Awad Agreement to terminate the Agreement with the Plaintiff. The Defendants has breached clause 6 of the Sri Awad Agreement as the minimum continuous contractual period of 8 years was not adhered to. [153] The Court shall only allude to this contention by the Plaintiff very briefly as the literal reading of the Contract suffices to unravel the misinterpretation afforded by the Plaintiff. The Court sees no rhyme or reason to deviate from such a clear and succinct clause in the Sri Awad Agreement, namely clause 6. The clause reads: “6.1 Unless terminated earlier in accordance with the provision of this Contract, this Contract shall expire after a period of four (4) years from the Commencement dated (hereinafter referred to as the “Initial Period”) 6.2 At the end of the Initial Period, the parties may agree in writing to extend to the Contract for a further two (2) years (hereinafter referred to as “Extended Period 1”) and thereafter for a further two (2) years (hereinafter referred to as “Extended Period 2”) both of which, together with the Initial Period shall be referred to as the “Contract Duration”) upon terms and conditions to be mutually agreed upon…In the event either party wishes to extend the Contract for either Extended Period 1 or Extended Period 2 or both, the requesting Party shall notify the other Party of their intention to do so six (6) months before the expiry of the Initial Period or the Extended Period 1, as the case may be.” [154] In plain sight and beyond a single shade of doubt, the clause never mention of an ‘automatic’ term of 8 years. It is clear as day that the contract expires after 4 years with an opportunity to extend twice, the term of 2 years. [155] And against this automatic term of 8 years, it is at this point unsurprising that the Plaintiff itself has admitted against this contention and admitted that the contract expires after 4 years. This is blatantly apparent in its letter dated 7.7.2008. (See Bundle B3, page 42) “The setting up of Sri Awad is also for the owners to manage the transport business on bigger scale. Earlier SE (Sri Enterprise) had entered into a second fresh agreement with KLB for dedicated transportation services of bulk petroleum products for a period of 4 years which ended September 30, 2007 with an option of renewal for another 4 years. The Contract is now subordinated to Sri Awad” Plaintiff admitted non-compliance to the procedures of extension. [156] On the same note, the Clauses above briefly requires that in view of an extension, parties must first, have a written agreement to the extension(s)’ effect and the party intending to extend must notify the other party 6 months before the Sri Awad Agreement’s expiration. [157] On both requirements, Dr Awad, the Plaintiff’s witness had admitted that the Plaintiff has not complied with both of the above requisites. The Plaintiff neither has a written contract for extension nor any request for extension 6 months before expiration. (See NOE Vol. 1, 12.11.2014, pages 158) “FMD: The Second Defendant. Okay, so they promised to give to you. So before this court, we do not have an agreement in writing to extend the contract, agreed? AWAD: Yes. FMD: Okay. Neither do we have a request either by KLB or by Plaintiff six months prior to the expiry, to extend the contract. AWAD: Yes, they agree. FMD: No, is there a request? You see, the agreement says the requesting party shall notify the other party of their intention to do so six months before the expiry of the initial period or the extended period, as the case may be. So I just want to know whether there is such notification from either side – Second Defendant or Plaintiff as required under Section 6.2. AWAD: No. FMD: There is none, yes? AWAD: Yes.” Issue (a) and (b) of the 2nd Cause of Action shall be dealt together. (a) Was there a contract of supply of tankers between the Defendants and the Plaintiff? (b) Was there a breach of the alleged contract of supply of tankers by the Defendants? [158] Briefly, the Plaintiff’s 2nd Cause of Action is that the Defendants (more specifically the 2nd Defendant) had offered the Plaintiff and breached an Agreement for the Manufacturing and Supply of a number of tankers for the purpose of transporting the 1st Defendant’s petroleum products. [159] From the outset, it must be noted that there is no physical written contract of the alleged Order Agreement. The Order Agreement is submitted to be derivative of a line of correspondences, which led to the Plaintiff to manufacture the tankers (allegedly). [160] Throughout the trial, there are three fundamental documents in Court which was submitted by the parties to the dispute. Those documents being: (a) The 2nd Defendant’s Tawaran Kemasukan Lori Tangki Baru – Penggantian dated 15.12.2004 (ref. no: BLDD/TGL/29/12/04) (“Letter of Offer”) (see B1, page 1 to 2) (b) The Plaintiff’s Letter to the 2nd Defendant dated 31.1.2005 referring to the Plaintiff’s letter no BLDD/TGL/29/12/04 (“Rejection Letter”) (see Bundle B2, page 43) (c) The 2nd Defendant’s letter dated 8.2.2005 (“Rejection Confirmation Letter”) (see Bundle B1, page 3) [161] Now, the Plaintiff’s submission is that, based on the 2nd Defendant’s Letter of Offer, the Plaintiff had went out of their way to manufacture and pay the deposit for the tankers and had even entered into a Hire Purchase Agreement with the MIDF pursuant to the Letter of Offer. Thus, when the Defendant’s refused to accept the tankers and refused payment, the Defendants have breached the Order Agreement and caused losses to the Plaintiff. Plaintiff’s Rejection Letter dated 31.1.2005* *This Court takes notice of the fact that this Rejection Letter is mistakenly dated 31.1.2004. However, this has been explained to be a typo error during trial. [162] Now, despite the Plaintiff’s submission above, the contemporaneous documents put in Court seems to deem the Plaintiff’s submission not even the least plausible or probable. [163] Specifically in reference to the Plaintiff’s own Rejection Letter. The 2nd Defendant’s submission is that there is no ground at all that the Plaintiff would put itself in that detriment alleged as the Plaintiff itself has made it clear that it rejects the 2nd Defendant’s Offer Letter. [164] Now, against the 2nd Defendant’s reliance on the Plaintiff’s Rejection Letter, the Plaintiff submits that the 2nd Defendant had misconstrued the Letter merely because there were no such words of “unable to accept the offer”. [165] The Court highlights here that there is no law, even to the farthest stretch of the legal imagination that stipulate that an offer can only be rejected using the words “unable to accept the offer”. As long as any statements, is to the effect of rejecting the Offer, it is a rejection. [166] The Rejection Letter could not be clearer. Firstly, the letter’s reference clearly refers to the 2nd Defendant’s Offer Letter. It is written in the top right corner of the Letter underneath the Particulars of the Receiver: “Reference BLDD/TG/29/12/04” [167] The 2nd Defendant’s Offer Letter’s Reference number is indeed BLDD/TG/29/12/04. There is not a single shade of doubt that the Rejection Letter refers to the Offer Letter. [168] Even the opening paragraph of the letter writes: “Thank you for the confidence in our company on above offer” [169] And in effect of the Plaintiff’s rejection, the Plaintiff itself wrote: “We advise you that we had several discussion and negotiation with RJ Was Link Sdn Bhd. However, we regret to inform that we are unable to reach an amicable agreement to proceed with arrangements made by Konsortium Logistik Berhad vide your letter dated December 15, 2004” [170] It is immensely obvious that the Plaintiff was unable to reach an agreement. When an agreement could be reached, then it entails that there is never any agreement. The Plaintiff’s contention against this letter therefore, fail and devoid of any legal and/or factual reasons. 2nd Defendant’s Rejection Confirmation Letter dated 8.2.2005 [171] This letter was issued by the 2nd Defendant in reply to the Plaintiff’s Rejection Letter. The content of the letter is nothing short of clarity. It clearly refers to the Rejection Letter dated 31.1.2005 and the Offer’s reference number: “Per: Tawaran Kemasukan Lori Tangki Baru – Penggantian Surat tuan BLDD/TGL/29/12/04 bertarikh 31hb Januari 2005 berhubung perkara di atas dirujuk. Kami dengan ini mengesahkan bahawa syarikat tuan telah menolak tawaran kemasukan penggantian lori tangki yang dikeluarkan oleh KLB pada 15hb Disember 2004 melalui surat tuan di atas. Maka dengan ini tawaran yang dikemukakan tersebut dibatalkan dan KLB berhak menawarkan penggantian ini kepada kontraktor lain.” Plaintiff’s wrongful reliance to the Offer Letter [172] Now, in the last bid to salvage this failing contention, the Plaintiff submitted that notwithstanding the Plaintiff’s own Rejection Letter in the year 2005, the Plaintiff had already paid deposits over the tankers in 2004. The Deposit was paid on the supposed reliance on the content of the Offer Letter which reads: “Walaubagaimanapun sekiranya tiada apa-apa tindakan susulan untuk membeli lori tangki tersebut sehingga 01hb Mei 2005, maka tawaran ini akan dengan sendirinya terbatal” [173] However, a plain reading of the Plaintiff’s contention would reveal that the contention is not even logical in its timeline. It goes beyond any logical reconciliation and reason that firstly in the year 2004, the Plaintiff took steps to pay deposits for the tankers pursuant to the offer and subsequent to the alleged payments, in the year 2005 AFTER the payment, the Plaintiff suddenly opted to reject the Offer and was unable to reach an agreement. [174] It is undoubtedly clear that the Plaintiff cannot make any logical reconciliation to this utterly illogical alleged turn of events. The Plaintiff’s contention here completely and utterly fails. Court’s findings [175] The Plaintiff had utterly failed to prove any existence of an Agreement for the supply of tankers. The testimonies and contemporaneous evidences discussed above divulge the undeniable conclusion that the Plaintiff themselves had rejected and cancelled the 2nd Defendant’s Offer. Thus, there was no Agreement to begin with. [176] Therefore, there is never any breach of the non-existent Agreement as fallibly contended by the Plaintiff. [177] The Court is again guided by the Court of Appeal decision in the case of Lee Ing Chin and also the case of Boustead Agency that the Plaintiff should be estopped from denying the fact that the Plaintiff itself has rejected the Offer Letter and has never entered in the Agreement with the 2nd Defendant. Court’s decision and Order as to Costs [178] The Court therefore, dismisses all of the Plaintiff’s claims in this action and therefore, dismisses the Plaintiff’s action. [179] Having heard brief submissions from counsels for the Plaintiff, the 1st Defendant and the 2nd Defendant, this Court hereby orders that the Plaintiff to pay each of the Defendants costs of RM50,000.00 amounting to a total of RM100,000.00. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 22th day of April, 2015. For the Plaintiff - Messrs Ramesh & Loo Mr. Ramesh Sivakumar Messrs Avtar Singh Mr. Avtar Singh, Mr. Amarjeet Singh For the First Defendant - Tetuan Moideen & Max Mr. Faizal Moideen, Mr. Max Tai, Mr. Aloysius Susek For the Second Defendant - Tetuan Arthur Wang Lian & Associates Mr. Arthur Wang Ming Wey 14

Tika 2.6.0

22-1259-2009

PLAINTIF SRI AWAD PENGANGKUTAN ENTERPRISE SDN BHD RESPONDEN 1) PETRONAS DAGANGAN BERHAD 2) KONSORTIUM LOGISTIK BERHAD

22/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=088e596c-8d65-46c3-9739-3824740d18fe&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 22-1259-2009 BETWEEN SRI AWAD PENGANGKUTAN ENTERPRISE SDN BHD .... PLAINTIFF AND 1) PETRONAS DAGANGAN BERHAD 2) KONSORTIUM LOGISTIK BERHAD .... DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial) [1] The Plaintiff (Sri Awad Pengangkutan Enterprise Sdn Bhd) is a private limited company carrying on the business of Liquefied Petroleum Gas (LPG) haulage and transport services. [2] The 1st Defendant (Petronas Dagangan Berhad) is a company in the business of marketing, trading and distributing petroleum products including Liquefied Petroleum Gas (LPG) for Petronas. [3] The 2nd Defendant (Konsortium Logistik Berhad) is a company which provides haulage and delivery services. [4] The case herein from the outset is a claim for damages arising from a breach of contract. Primarily, the Plaintiff in its Amended Statement Claim (A1) claims against the 1st and 2nd Defendants (“Defendants”) for a sum of RM17,864,168.00 or any other amount to be assessed by this Court and also a further sum of RM 3,825,000.00 allegedly suffered by the Plaintiff arising from the Defendants’ breach of contract. [5] The Plaintiff’s pleaded case is this; under the first (1st) cause of action, the First Defendant and Second Defendant had allegedly wrongfully terminated the Plaintiff’s services and that there was a fundamental breach of the Main Agreement entered between the Plaintiff and the First Defendant. Under the second (2nd) cause of action, the Plaintiff claims from both the Defendants for damages arising from an alleged failure to accept eight (8) units of road tankers and failure to pay for the usage of two (2) units from the eight (8 ) tanker units. [6] There is only one contract which forms the fulcrum of the Plaintiff’s claims against the Defendants in respect of the Plaintiff’s 1st cause of action. That of which being the Contract dated 1.10.2003 (“Sri Awad Agreement”) which signatories to the contract were the 2nd Defendant and the Plaintiff whereby the 2nd Defendant had contracted to provide transportation services to the Plaintiff. [7] The 2nd Defendant then allegedly was replaced by MISC Integrated Logistics Sdn Bhd (MILS) who took over the 2nd Defendant’s role and standing in the Sri Awad Agreement. [8] Albeit that there are other contracts which remain relevant to this dispute (which will be discussed further in this judgment) it is vehemently clear that the breaches so alleged by the Plaintiff heavily gravitates to the Sri Awad Agreement (regarding the 1st Cause of Action). [9] The 1st Defendant, alongside the Sri Awad Agreement, placed reliance on a preceding contract dated 15.8.2003 which signatories were the Defendants. (“KLB Agreement”) whereby the 2nd Defendant was appointed as the 1st Defendant’s Transportation Manager to provide transportation services to the 1st Defendant. It is abundantly clear from Clause 4.6(e) of the KLB agreement that the 2nd Defendant as Transportation Manager is merely an independent contractor and at no point in time shall be deemed as employees or agents of the 1st Defendant. [10] The nexus between the two contracts above is that the 1st Defendant decided to outsource its transportation needs and appoint specialized independent Transportation Managers to manage the transportation of the 1st Defendant’s Petroleum and/or Petroleum products under the KLB Agreement. The Plaintiff was one of the contractors and road tankers enlisted in the KLB Agreement (bundle H1, page 170). [11] Subsequently, the 2nd Defendant had entered into the Sri Awad Agreement to provide transportation services to enable the 2nd Defendant to manage and fulfil the transportation needs of the 1st Defendant. [12] The above brief facts roughly culminate the Plaintiff’s alleged 1st Cause of Action under the Sri Awad Agreement. [13] On the 2nd alleged cause of action of Plaintiff, the Plaintiff claims that it has entered into an agreement with the 2nd Defendant, alternatively the 1st Defendant as principal, where it was allegedly agreed that the Plaintiff shall supply tankers to the Defendants. The Plaintiff claims that the Defendants’ rejection and refusal to pay for the said tankers is a breach of this alleged agreement. [14] It must be noted that from the outset, there are no contemporaneous contract and/or agreement that was physically signed between the 1st Defendant and the Plaintiff. [15] The manner in which the Plaintiff purports to link the 1st Defendant to the alleged breaches is that the 2nd Defendant had entered into the Sri Awad Agreement as an agent of the 1st Defendant. The Plaintiff also alternatively, purports to link MILS to the 1st Defendant as its agent and therefore are liable as principal to MILS’ breach(es) (if any). [16] The breaches alleged are argued by the Plaintiff to be universally linked to both the Defendants. The Plaintiff pins the breaches against the 2nd Defendant as signatory and contracting party of the Sri Awad Agreement. On the other hand, the Plaintiff hinges the breaches against the 1st Defendant in the sense that they are the actual principal to the Contract. All throughout the trial and submissions, the Plaintiff had tenuously argued that the 1st Defendant is a party of the Sri Awad Agreement by way of principal-agent relationship as Principal to either the 2nd Defendant or MILS or even both. [17] The breaches under the Sri Awad Agreement forms the 1st alleged cause of action of the Plaintiff. Briefly, the breaches under the Sri Awad Agreement alleged by the Plaintiff against the Defendants are: (a) The Defendants have prematurely terminated the contract against Clause 6 of the Sri Awad Agreement which the Plaintiff alleges that the contract period was a minimum of 8 years. (b) The Defendants have wrongfully terminated the Sri Awad Agreement upon MISC’s alleged unlawful termination of the Sri Awad Agreement. [18] While on the 2nd alleged cause of action, the Plaintiff alleges the following breach against the Defendants: (a) The Defendants have breached an alleged Agreement for the supply of tankers which consequently had led to the Plaintiff’s losses and also default of a Hire Purchase Agreement entered into between the Plaintiff and MIDF. [19] Now, in determining the present dispute, the Court finds that the following are the material issues to be discussed. [19.1] In respect of the 1st Cause of Action: (a) Whether the 2nd Defendant an agent to the 1st Defendant? (b) Whether the 1st Defendant a party to the Sri Awad Agreement as Principal? (c) Was there a breach of the Sri Awad Agreement by the Defendants when the Plaintiff’s services were suspended and terminated? [19.2] In respect of the 2nd Cause of Action: (a) Was there a contract of supply of tankers between the Defendants and the Plaintiff? (b) Was there a breach of the alleged contract of supply of tankers by the Defendants? [20] The Court will directly discuss the Parties’ position and/or arguments and evidence forwarded in respect of each of the issues enunciated above and thereafter makes a finding of all those issues before making a decision determining this present dispute. Issues (a) and (b) of the 1st Cause of Action shall be dealt together [21] This first issue is immensely relevant to the dispute as it is the sole thread of nexus which the Plaintiff intends to draw against the 1st Defendant. The hypothesis is simple. If the 1st Defendant is the Principal of the 2nd Defendant, then the 1st Defendant is read into the Sri Awad Agreement which the 1st Defendant is not a signatory to. [22] The Plaintiff have at length argued and submitted evidences in proving such principal-agent relationship between the Defendants. [23] Before the Court delves into the masses of evidences in this regard, the Court would address the evidences submitted by the Plaintiff which are the pleadings and sworn testimonies of the witnesses called during trial. It is peculiar to note that the Plaintiff instead of submitting on any real documentary evidence supporting their contention had tenuously submitted on other extrinsic evidences outside of the contracts relevant to the dispute. [24] It is also noted that the Plaintiff’s submission in proving this essential contention is surprisingly brief in contrast of the voluminous testimony and evidences which was put to the test in the Court. In fact, in contrast to the 1st Defendant’s comprehensive submissions, covering a large extent of the trial, the Plaintiff have in a way abandoned much of its own contention and have left much of the 1st Defendant’s submission uncontested in the Plaintiff’s own reply against the 1st Defendant’s submission. This will be further addressed in this judgment. The Plaintiff’s reliance on the term “Principal” in the Sri Awad Agreement. [25] The Court intends to address the most significant documentary evidence to which all parties have relied onto. That of which are the KLB Agreement and the Sri Awad Agreement. [26] The Plaintiff’s submission on the Sri Awad agreement briefly is that the Sri Awad Agreement mentions of the 1st Defendant as a Principal and therefore is the actual contracting party to the Sri Awad Agreement with the Plaintiff. The Plaintiff’s stand is that it was understood by the Parties, at the time the Sri Awad Agreement was entered into, that the 1st Defendant is the principal whilst the 2nd Defendant is merely the agent of the 1st Defendant. The Plaintiff submits that the Sri Awad Agreement’s term was already clear and should be read to its natural meaning. [27] However, in the same Sri Awad Agreement, it is noteworthy that the 1st Defendant pointed out that the agreement has never defined which party is the agent. In fact, this Agreement never defined any party as an Agent. [28] Furthermore, against the Plaintiff’s contention, a plain further reading of the Sri Awad Agreement would instead not reflect any principal-agent relationship. The Plaintiff at length had submitted, in reference to the Notes of Evidence, that the Plaintiff’s witness, Dr. Awad, was at pains to draw the 1st Defendant into the Sri Awad Agreement in respect of payments under the Sri Awad Agreement. And the Court concurs. The witness was swerving left and right to avoid admitting the plain written terms of the contract. If the Plaintiff intends to submit on the strict interpretation of the contract, they are also bound to strict interpretation of terms which are not in their favour. This Court draws its attention to Clauses 7.3 and 7.5 of the Sri Awad Agreement and the Notes of Evidence Vol. 2, pages 30-33. Clause 7.3 clearly states that the party paying the services of the Plaintiff is the 2nd Defendant, and not at any time the 1st Defendant. The relevant portion of Clause 7.3 is reproduced below: “…in the event that after payment has been made by the company to the contractor…” [29] It is clear here that even the terms of the Sri Awad Agreement do not support the creation of Principal-Agent Relationship. It is devoid of any reconciliation and support that the Plaintiff could reasonably apprehend that there is any such relationship, when in plain words, the Plaintiff knew that the 1st Defendant does not pay them for its services. It is the 2nd Defendant. [30] In fact, against the alleged reasonable assumption by the Plaintiff, there is a barrage of oral and documentary evidences put forth in the Court which defeats such contention. In fact, Dr Awad in his testimony in fact readily admitted that the 2nd Defendant was an independent contractor. These evidences are addressed as follows. Terms in the KLB Agreement [31] The KLB agreement clearly stipulates that the 2nd Defendant is merely an independent contractor as per clause 4.6(e). For the sake of convenience, the clause is reproduced below (see Bundle H(1), page 17): “The Main Contractor is an independent contractor and neither the Main Contractor nor its employees, servants and agents shall be deemed to the employees or agents of the Company” [32] The term “Main Contractor” was already defined earlier in the KLB Agreement to be the 2nd Defendant while “Company” refers to the 1st Defendant. [33] From the outset, the 2nd Defendant has no standing to represent the 1st Defendant as principal. The meaning of “Principal” ascribed in the Sri Awad Agreement cannot have been intended to take the meaning of a principal in an agent-principal relationship, as it is already blatantly clear that the 2nd Defendant knows and was fully aware that they are not agent to the 1st Defendant and are merely independent contractors. [34] The Plaintiff against the KLB Agreement in the course of trial has argued that the 2nd Defendant had held out the 1st Defendant as the Principal. However, contemporaneous documents and testimonies indicate otherwise. There is no basis merely because the Plaintiff is not privy to the terms of the KLB agreement that the Plaintiff may reasonably assume or apprehend that the 1st Defendant was its Principal. The ground behind this preliminary finding is well-founded. Plaintiff’s incorrect/misconceived interpretation of clause 4.6(e) [35] It is also noted that the Plaintiff had forwarded its own interpretation of the clause. However, it must be understood that the interpretation afforded by the Plaintiff in their Reply Submissions against the 1st Defendant’s submission was on clause 4.6(e) of the Sri Awad Agreement and NOT the KLB Agreement (which was the submission of the 1st Defendant): “15.2 Similarly, the reference to clause 4 that deals with employment of labour (and the sub-clause 4.6 thereto), has no relevance on the proper construction thereof and also has no relevance to the Plaintiff’s dealings with the 1st Defendant as the principal (see pages 212 to 214 of Bundle B1)” (emphasis added) [36] Pages 212 to 214 of Bundle B1 are the pages where clause 4.6(e) of the Sri Awad Agreement is contained. NOT the KLB Agreement. [37] The Plaintiff is seemingly confused to the dispute at hand. On the other hand, based on the interpretation of Sri Awad Agreement’s clause above, the Plaintiff suddenly sought to defeat paras 103 and 104 of the 1st Defendant’s submission. (Which refers to KLB Agreement’s clause 4.6(e) and NOT Sri Awad Agreement’s clause): “103. Now if were to look at Clause 4.6(e) of the said KLB Agreement…” “104. It would necessarily follow that the 2nd Defendant cannot also than be an ‘Agent’ of the 1st Defendant in the context of the Sri Awad Agreement as the creation of an agency has been expressly excluded by virtue of Clause 4.6(e) of the KLB Agreement.” [38] This contention shall fail as the Plaintiff cannot equate a totally different clause to the clause which was referred to by the 1st Defendant. The two clauses are entirely different. Thus, it follows that even the literal interpretation of the two clauses would definitely differ. [39] Clause 4.6(e) of the KLB Agreement stipulates (difference is in bold, in brackets, italicised and underlined): “The (Main) Contractor is an independent contractor and neither the (Main) Contractor nor it employees, servants and agents shall be deemed to be the employees or agents of the Company” [40] Clause 4.6(e) of the Sri Awad Agreement omits and deletes the word “Main” above. [41] The Clause in the KLB Agreement makes an explicit reference to a “Main Contractor” which was defined in the same KLB Agreement to be the 2nd Defendant. [42] There is absolutely no reason or justification to instead ascribe the interpretation of the clause in the Sri Awad Agreement into the clause in the KLB Agreement. [43] This contention by the Plaintiff does absolutely no damage against the submission of the 1st Defendant. Plaintiff’s objection on clause 4.6(e) being unpleaded [44] The Plaintiff had submitted that the 1st Defendant ought not to be allowed to refer to clause 4.6(e) on the ground that it was unpleaded. However, the Court disagrees with the Plaintiff in this contention. It was already pleaded by the 1st Defendant the KLB Agreement and the assertion that the 2nd Defendant at all material times were never the 1st Defendant’s agents and are merely their independent contractors. [45] It was already contended by the 1st Defendant in their pleading that they intend to prove that the 2nd Defendant was merely independent contractors. Any facts in support of that assertion are merely evidence which need not be pleaded. The relevant paragraph is reproduced as follows: “6. The 1st Defendant contends and will contend that the relevant background facts in respect of this matter are as follows:… (d) Sometime on or about 15.8.2003, the 1st Defendant entered in an agreement with KLB, wherein the 1st Defendant appointed KLB as one of its Transportation Managers to provide road transportation services to the 1st Defendant (hereinafter referred to as “the KLB Agreement)”. (e) The 1st Defendant contends and will contend that the KLB was and is at all material times an independent contractor and at no time was it appointed as an agent of the 1st Defendant.” Plaintiff’s admission on the 2nd Defendant’s position as an Independent Contractor under the KLB Agreement [46] In fact, Dr Awad himself, the Plaintiff’s main witness has admitted that the 2nd Defendant is indeed an independent contractor as per clause 4.6(e) of the KLB Agreement. The relevant portion of the evidence can be found in Vol. 2, page 29 which is reproduced below: “MFM: The Plaintiff is actually an independent contractor based on this clause. AWAD: Yes.” Plaintiff never wrote to clarify on the parties’ position under the Sri Awad Agreement [47] The Plaintiff knowingly entering the Sri Awad Agreement, that the term “Agent” was never defined, and also to the fact that clause 7.3 of the Agreement, it is the 2nd Defendant is the party who pays for their services, it was admitted by Dr Awad that the Plaintiff had never at any point in time, written to any of the Defendants to clarify on the 2nd Defendant’s position as an agent or the 1st Defendant as Principal. Fully aware of the nature of the contract, the Plaintiff had never put a single effort in finding certainty of its own alleged understanding of the Agreement. The Court refers to the Notes of Evidence Vol. 1, page 32 reproduced below: “FMD: Yes, just please answer my question. Now is there any letters from the Plaintiff before this court, where the Plaintiff wrote to the First Defendant Petronas Dagangan Berhad, confirming that indeed the Second Defendant is an agent and has authority to enter into this contract with the Plaintiff? AWAD: No, I don’t have.” Plaintiff admits that they were merely sub-contractors [48] Not only that the Plaintiff has never enquired of it, but in fact, the Plaintiff themselves even admitted to the understanding that they were mere sub-contractors. “FMD: Dr Awad, this letter was sent by KLB to Sri Awad, clearly referring Sri Awad the plaintiff herein as a subcontractor. Not once, twice in the second last paragraph. My question is, did you at least at this point write to KLB to clarify their position vis a vis their contract with Petronas Dagangan Berhad? They just called you a subcontractor. AWAD: No I didn’t write. FMD: Did you at this point write to Petronas Dagangan Berhad to clarify KLB’s position; whether they were an agent or a main contractor? AWAD: No I didn’t write.” [49] There was a string of correspondences in which referred the Plaintiff as a sub-contractor and not even once the Plaintiff has come out and objected against it. All the four letters by the 2nd Defendant dated 21.11.2007, in pages 24 to 27 of Bundle B(2) contain the following paragraph: “Merujuk kepada perkara diatas dan keputusan mesyuarat pada 27 September 2007 adalah dimaklumkan bahawa sub-kontraktor KLB iaitu Sri Awad Sdn Bhd…” [50] The Plaintiff made no effort to object to them being referred to as sub-contractors. [51] It is clear that even the 2nd Defendant understood that the Plaintiff is merely a sub-contractor. [52] The array of compelling evidences against the Plaintiff’s contention does not end here. This Court will discuss these evidences as follows: (i) Claims Procedure for examination service rendered [53] Dr Awad under cross-examination admitted that claims for payment was directed to the 2nd Defendant and the claims were never copied to the 1st Defendant. This is clear in reference to the letters and supporting documents that the claims were made against the 2nd Defendant was the same was never copied to the 1st Defendant. “MFM: OK. And you told us that this document has been sent to KLB. Now look at it. Was this copied to my client? The First Defendant. AWAD: No. MFM: And this is how the submission is made for KLB to process the payment to the Plaintiff, correct? AWAD: Yes. MFM: Yes. And you produced this as an example as to how payments are effected between the parties, correct? Awad: Yes.” (ii) Reliance on averments in 2nd Defendant’s Affidavit as evidence [54] The Plaintiff had submitted that the 1st Defendant’s witness, DW-1 had acknowledged the 2nd Defendant’s Affidavit averring that the 1st Defendant is the Principal to its agent, the 2nd Defendant. However, there is not a single shred of reference to the Notes of Evidence forwarded by the Plaintiff in their submission in proving such acknowledgment by DW-1. [55] The 1st Defendant in their Reply Submissions has addressed this reliance by the Plaintiff. Peculiarly enough, albeit that the Plaintiff’s main contention is the existence of the alleged principal-agent relationship, neither the Plaintiff nor the 2nd Defendant have ever called the maker or deponent of the affidavit to testify in Court. We are inclined to agree with the 1st Defendant that the veracity of such cardinal evidence must be allowed to be tested. There were no reasons at all afforded by the Plaintiff on its failure to call the deponent of the affidavit to testify on the affidavit. There was also no proof that the Plaintiff at all made any effort, to its diligence to call the deponent of the affidavit. Be that as it may, the 2nd Defendant was denied of their application to call the deponent as witness subsequent to their choice not to offer evidence, there is nothing at all that restrains the Plaintiff itself to call the deponent to testify on the affidavit (of which the Plaintiff itself is relying onto). In fact, it was even admitted in the Plaintiff’s Reply Submission against the 1st Defendant’s submission that the Plaintiff itself had objected against the 2nd Defendant’s application to call the deponent to testify. It is verily peculiar how the Plaintiff intends to rely on the affidavit but at the same time it is also against the idea of the deponent to testify on the same piece of evidence that the Plaintiff relies upon. This is clearly an afterthought. [56] Furthermore, this Court finds that the submission of the Plaintiff in its reply that the 1st Defendant’s failure to call the deponent of the affidavit to disprove the averments is fatal to their case totally erroneous. It is trite law that “he who asserts must prove”. The onus to proof lies on the Plaintiff to prove such relationship. There is no basis at all that the onus has shifted to the 1st Defendant to disprove an assertion which was not yet proven by the Plaintiff. It is the Plaintiff who asserts the relationship, then the burden lies onto the Plaintiff to put forth all the relevant evidence to prove its assertion (inclusive of the affidavit relied upon, which the Plaintiff has not). If the Plaintiff itself did not forward such evidence, then at no point in time, the Defendant bears a burden to disprove. There was no failure at all on the part of the 1st Defendant. Instead, there was a failure on the part of the Plaintiff to call the deponent to testify in Court. It is plain and simple. The party who asserts must prove. Which in this case, it is the Plaintiff who must prove its assertion. [57] This Court is guided by the decision of Winslow J in the case of Eastern Enterprise Ltd v Ong Choo Kim [1969] 1MLJ 236 which reads: “I accordingly find that the Plaintiff have not discharged the burden of proving a case against the Defendant at the first place. No burden accordingly shifts to the Defendant…the Defendant would not have to disprove something which has not been proved against him”(emphasis added) [58] Moreover, this Court is guided by the recent decision of the High Court in the case of Oriental & Motolite Marketing Corp v Syarikat Asia Bateri Sdn Bhd [2012] 5 MLJ 87, para 29 to 31: “[29] Before I proceed further, I will deal with a preliminary objection raised by the defendant's counsel. In this regard, the defendant argued that the court cannot consider as evidence the affidavit of Minguel v Pingol (exh P3) and the affidavit of Roberto v Garcia (exh P4) submitted by the plaintiff through PW2 as this is contrary to s 73 of the Evidence Act. In relation to this, the plaintiff contended that: Section 73A of the Evidence Act 1950 which provides an exception to the rule that evidence must be tendered through a person who is called as a witness in the proceedings as follows: 73A Admissibility of documentary evidence in civil cases etc · (1) Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied: · (a) if the maker of the statement either: · (i) had personal knowledge of the matters dealt with by the statement; or · (ii) … And · (b) if the maker of the statement is called as a witness in the proceedings: · (ii) Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. [30] In this present case, both these witnesses were overseas in the Philippines and have deposed in their affidavits that they could not come at short notice to give evidence in person, due to the late amendment to the defendant's statement of defence two weeks before the trial. [31] In the light of the above reasons, I am satisfied that the pre-requisites in s 73A of the Evidence Act as to the admission of these affidavits of Roberto v Garcia, marked exh P4 and the affidavit of Miguel v Pingol, marked exh P3 have been fulfilled in accordance with s 73A of the Evidence Act and they can be taken into account as part of the evidence before this court.” [59] In the present case however, there is nothing at all submitted by the Plaintiff to satisfy any of the exceptions under Section 73A of the Evidence Act. In fact the Plaintiff itself objected on the application to call the deponent to testify on the affidavit. [60] Hence, it is the Court’s view that the Court ought not to simply admit such averments in the affidavit to be conclusive evidence that there was indeed a principal-agent relationship between the Defendants. (iii) Reliance on the 2nd Defendant’s pleadings as evidence to prove principal-agent relationship [61] The Plaintiff further attempts to prove such relationship from an alleged ‘admission’ of the 2nd Defendant of being the 1st Defendant’s agent. Against this contention, the Court from the outset would deem this contention fallible. It is not the law that mere pleadings are readily available to be deemed as conclusive evidence to a certain assertion. In fact, pleadings are supposed to be mainly factual with minimal evidences. This is on the trite understanding that even pleadings need be substantiated later in trial. [62] The Plaintiff had referred to the case of Marzaini v Majlis Peguam Negara [2007] 8 MLJ 697 in supporting its contention. However, a plain reading of the case reveals that the case is clearly distinguishable to the present case. In Marzaini’s case, the admission referred to in the case is an admission by a solicitor on the account of misconduct which was made during the disciplinary board hearing. At no point in time the case was referring to pleadings as an admission. It is too far-fetched to equate a pleading to be an admission binding against the party admitting. Marzaini’s admission during the disciplinary board hearing is indeed evidence. However, it is trite law that mere pleadings are NOT evidence. The Court is guided by the case which was referred to by the 1st Defendant, Ng Ben Thong & Ors v Krishnan a/l Arumugam [1998] 5 MLJ 579: “Pleadings is (sic) not evidence. It is a bare averment of a party’s case. The party has to adduce evidence to substantiate its pleadings. Whilst pleadings cannot become evidence in the absence of evidence being led in court, similarly evidence cannot be led outside pleadings” [63] In fact, the case is distinguishable in another aspect. In Marzaini, an admission was effected against the person who made the admission and not against another party. This is utterly incoherent with the present case. What the Plaintiff purports to draw is that the supposed admission by the 2nd Defendant is equally enforceable against the 1st Defendant who did not make such admission. [64] Thus, it is this Court’s judgment that the Plaintiff’s reliance upon the 2nd Defendant’s pleadings as an evidence of admission, cannot and will not stand. (iv) Alleged ‘Direct Correspondences’ [65] The next piece of evidence that the Plaintiff relies upon in their submission is the supposed direct correspondence that the Plaintiff has with the 1st Defendant. Now, it must be noted that the Plaintiff, has by their own submission, narrowed these alleged correspondences only to one letter of termination by MILS dated 18.7.2008 (see Bundle B1, page 63 – 64). And this position taken by the Plaintiff is consistent even in its reply against the 1st Defendant’s submission. There are no other letters referred to by the Plaintiff in attempting to prove the alleged principal-agent relationship to bind the Sri Awad Agreement against the 1st Defendant. It seems that the Plaintiff opted to abandon all other letters mentioned in their own Statement of Claim in para 7(b). Even after the 1st Defendant has addressed those letters in their submission, the Plaintiff never took liberty to answer to their submissions. These letters submitted by the 1st Defendant shall be addressed later in this judgment. This Court shall first address to this sole letter referred to in the Plaintiff’s submission. (a) MILS’ Termination Letter dated 18.7.2008 [66] The 18.7.2008 letter is the Termination Letter by MILS to the Plaintiff. Indeed the content of the letter did refer the 1st Defendant as a principal. And on this basis the Plaintiff submits that it is the parties’ common understanding that the 1st Defendant is the Principal. The counsel for the Plaintiff further submitted that, in fact the letter was never replied by the 1st Defendant albeit being copied the letter. [67] Now against this contention, as had been discussed in the numerous findings above, there is no justification at all that the Plaintiff may apprehend that the 1st Defendant is a Principal. Although being referred to as a Principal in this letter, it is overwhelmingly compelling that the parties (especially the Plaintiff and 2nd Defendant) have already understood, in full awareness that the 1st Defendant is not in any point in time a Principal. [68] Furthermore, the Court agrees with the 1st Defendants Reply Submissions against the Plaintiff’s Submissions that there is no reason at all for the 1st Defendant to reply the letter as it was never directed to the 1st Defendant. It was merely copied to them. (b) 1st Defendant’s letter calling for the registration of all transportation operators dated 23.11.2007 [69] This is one of the letters which was referred to in the Plaintiff’s own pleading and was also not at all submitted in its submission. It is peculiar to note that the Plaintiff themselves are unconvinced by their own pleading that they opt to abandon the contention in their submission. And even in the Plaintiff’s reply to the 1st Defendant’s submission, after the 1st Defendant had addressed the letter, the Plaintiff had never made any contention against it. [70] The 1st Defendant’s letter dated 23.11.2007 at Bundle B(1), page 40 is a letter calling for all of the 1st Defendant’s Transportation Operators to register with the 1st Defendant which was sent to the Plaintiff. The Plaintiff took this letter as an evidence to prove direct correspondence with them in consequently proving the alleged direct relationship as Principal. However, the Court is in agreement with the submission of the 1st Defendant which is more plausible. A plain reading of the letter is sufficient to reveal that the letter was addressed not just to the Plaintiff, but to all Transportation Operators. The opening of the letter reads: “Kepada semua Kontraktor Perkhidmatan Pengangkutan Pukal Bahan-bahan Petroleum di Semenanjung, Sabah dan Sarawak” [71] Regarding the above, the 1st Defendant’s witness, SD-1 has testified the following evidence which was never challenged during cross-examination: “A: As I said earlier, the 1st Defendant’s letters to the Plaintiff were nothing more than replying to the Plaintiff’s Letters which were directly issued to the 1st Defendant. In addition, some of the letters were not written to the Plaintiff directly. For example the 1st Defendant’s letter dated 23.11.2007 at p. 40 of BOD, Part A, marked as B-1, was not specifically addressed to the Plaintiff but was addressed to all transportation operators (both contractors and subcontractors) of the 1st Defendant. In this connection the 1st Defendant had asked all its transportation operators, whether directly or indirectly having business with the 1st Defendant to register with PETRONAS. The registration of the 1st Defendant’s contractors and sub-contractors do not automatically create a contractual relationship between the 1st Defendant and them but is merely for identification, security and administrative purposes, as these sub-contractors in carrying out their role would invariably enter the 1st Defendant’s premises for loading of products etc.” [72] Thus, this letter cannot at all be considered as any evidence to prove direct business relations or Principal-Agent relationship to deem the 1st Defendant a Principal in the Sri Awad Agreement. Court’s findings [73] In cognizance of all the aforementioned evidences and submissions by the parties, the Court finds that there is never in existence at any material times, a Principal-Agent relationship between the Defendants. Clearly in contrasting and analyzing the testimony of the witnesses and the contemporaneous documents discussed above, the Plaintiff could have never apprehended that the 2nd Defendant is the 1st Defendant’s agent and the 1st Defendant is the principal in the Sri Awad Agreement. The Court is guided by the Court of Appeal decision in the case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97: “A Judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence of a witness. He must when deciding whether to accept or reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of a motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against probabilities of the case. A trier fact who makes findings based purely upon demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.”( emphasis added) [74] The mass of evidence discussed above is exceptionally overwhelming to indicate all parties are in total and common understanding, that in any correspondences and/or contracts, that the 2nd Defendant is never an agent of the 1st Defendant. It was even admitted by the Plaintiff’s own witness, Dr Awad himself that he recognizes the 2nd Defendant as an independent contractor. [75] And in this common understanding, specifically the Plaintiff, who had no reason to apprehend that the 2nd Defendant was the agent to the 1st Defendant is fully aware that the 1st Defendant is not the Principal in the Sri Awad Agreement. Thus, the Plaintiff cannot now go against that state of understanding. The Court is guided by the case referred to by the 1st Defendant where the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 had referred to Lord Denning’s decision in the case of Amalgamated Investment and Property Co. Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84 which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” [76] Furthermore, a plain reading of both the Sri Awad and KLB Agreements would denote that there was never intended a formation or creation of Principal-Agent Relationship. [77] Consequently, as the 2nd Defendant was never an agent of the 1st Defendant, it is vividly clear that the Plaintiff had never entered into any contract with the Plaintiff, especially the Sri Awad Agreement. [78] Thus, any breaches against the Sri Awad Agreement (if any) are by no means attributable to the 1st Defendant. Issue (c) of the 1st cause of action: Was there a breach of the Sri Awad Agreement by the Defendants when the Plaintiff’s services were suspended and terminated? [79] The Court finds that it is imperative to delve further into the background underlying MILS’ involvement in the dispute. Further Background [80] It was alleged that MILS sometime or about 31.1.2008 had taken over the 2nd Defendant’s position and role as Transportation Manager. However, the Plaintiff submits that at no point in time had the Plaintiff agreed or acknowledged the replacement. [81] The said withdrawal of the 2nd Defendant and the appointment of MILS had been informed by the 1st Defendant to the Plaintiff via the 1st Defendant’s letter dated 30.1.2008 (“Appointment Letter”) (Bundle B1, page 395) [82] In furtherance of this replacement, the 1st Defendant entered into another contract with MILS on 11.7.2008 (“MILS Agreement”) which is similar to the KLB Agreement. (See Bundle B5, pages 272 – 433). [83] The Plaintiff’s tankers in pursuant to the Sri Awad Agreement had met with two road accidents. The 1st accident being on 2.4.2008 carries fatal consequences and claimed the lives of 2 motorists including a four year old child. The 2nd accident on 12.6.2008 has resulted in the spillage of approximately 14,560 liters of the 1st Defendant’s Primax 3 petroleum product. - See Bundle B4, page 157 for the Incident Notification Form of the 2.4.2008 accident - See Bundle B5, page 229 for the Incident Summary of the 12.6.2008 accident. (It must be noted that the Plaintiff never contended and/or disputed against the occurrence and details of the accidents) [84] As a result of the 1st and 2nd accidents (“the accidents”) MILS had suspended the Plaintiff’s services via their letter dated 13.6.2008. (see Bundle B1, page 398). [85] In response to the accidents a meeting was conducted to discuss inter alia the suspension of the Plaintiff’s services on 4.7.2008. (See Bundle B1, pages 56 to 58.) [86] In furtherance of the meeting held above, MILS wrote to the Plaintiff that it considers uplifting the suspension subject to the compliance of four conditions by the Plaintiff. (See MILS’ letter dated 7.7.2008 at Bundle B1 page 59.) The four conditions being: “1. Enforce full implementation of GPD of PDB’s choice, complete with testing and submission of relevant report; 2. Attend Safety Passport refresher training for all drivers; 3. Comply to the requirement for road parking at MILS central parking; and 4. Implement a salary scheme as determined in Attachment 1 hereof.” [87] Thereafter, in reply to MILS’ letter dated 7.7.2008 above, the Plaintiff expressed in their letter dated 11.7.2008 that they were unable to comply with the conditions. (See Bundle B2, pages 30 – 31). [88] Consequently, through a letter Termination Letter dated 18.7.2008 MILS had furnished notice of termination of the Plaintiff’s services due to the Plaintiff’s inability to comply with the Conditions imposed above. (See Bundle B1, page 63.): “With your inability to adhere to the condition requested by us, we see that you are no longer interested to continue with the services. As such, we hereby serve you notice that your services as the transporter of bulk petroleum for PDB is no longer required.” [89] However, it must be noted that even in the Plaintiff’s own submissions, that it is not disputed that the termination was conducted by MILS themselves. Only that, it was argued further by the Plaintiff, that the termination was done on the pretense that it was consented and directed by the 1st Defendant. [90] The alleged breaches of the Sri Awad Agreement claimed by the Plaintiff are as follows: (a) There was no notice of termination of the Sri Awad Agreement by the 2nd Defendant as provided under clauses 8.1, 8.2 and 8.3 of the Sri Awad Agreement. (See Bundle B1, pages 217 – 219.) Thus, allegedly the Sri Awad Agreement remains subsisting. (b) There was no justification for the termination of the Sri Awad Agreement by the Defendants. (c) The termination made by MILS through their termination letter is a wrongful termination as MILS has no rights under the Sri Awad Agreement to terminate the Agreement. (d) Although the 1st Defendant has appointed MILS to replace the 2nd Defendant, the Plaintiff has never entered into any contract with MILS. (e) The Defendants has breached clause 6 of the Sri Awad Agreement as the minimum contractual period of 8 years was not adhered to. [91] Now, before the Court addresses each of the above breaches alleged, there are two preliminary issues under this cause of action that is essential to be determined. (a) Is MILS an agent to the 1st Defendant? (b) Was MILS the 2nd Defendant’s valid replacement as Transportation Manager subsequent to the 2nd Defendant’s withdrawal? Is MILS an agent to the 1st Defendant? [92] It is the submission of the Plaintiff that the termination of the Sri Awad Agreement was conducted by MILS as agent of the 1st Defendant. From the outset, this Court totally disagrees with this contention. There is an abundance of evidence which indicates that MILS is merely an independent contractor and it was in the knowledge and awareness of the Plaintiff that MILS is not agent of the Plaintiff. [93] First and foremost, the MILS agreement contains the same provision as the KLB agreement. Specifically clause 4.6(f) of the MILS Agreement is of the same construction of clause 4.6(e) of the KLB Agreement: “The Contractor is an independent contractor and neither the Contractor nor its Driver(s), employees, servants and agents shall be deemed to be the employees or agents of the Company” [94] The Company being defined as the 1st Defendant and Contractor to be MILS. (See Section 1 of the MILS Agreement at Bundle B5, page 280) [95] Thus, echoing the same finding earlier, it is already clear from the MILS Agreement that MILS is merely an independent contractor. Other evidences [96] Now, by and large, against the Plaintiff’s contention that MILS is an agent of the 1st Defendant, and that the appointment of MILS is invalid, what transpired in Court reveals that the Plaintiff is in dire straits to draw this agency relationship. [97] Even the Plaintiff’s own submission after full trial only has a fleeting statement that the Termination Letter by MILS was issued on the direction and consent of the 1st Defendant. And that was the only argument made in the submission. The Plaintiff seemingly opted to not address the contentions which were put forth in Court during trial. Albeit that it may be unfavourable against the Plaintiff, but it is surprising that the Plaintiff made no attempt at all to provide justification or even an inkling of reconciliation to their contention. The following are the contentions which were instead raised by the 1st Defendant (at length) which was not addressed or to an extent abandoned by the Plaintiff: (a) The Plaintiff does not have proof that they claimed for payment directly to the 1st Defendant as Principal rather than MILS (See 1st Defendant’s Written Submission, page 80) (b) The Plaintiff vide its own letter dated 7.7.2008 admitted that MILS is the party making payment for their services. (See 1st Defendant’s Written Submission, page 80 to 84) (c) The Plaintiff itself made claims for payment against MILS rather than the alleged Principal, the 1st Defendant. (See 1st Defendant’s Written Submission, page 84 to 87) [98] And it must be further noted that even in the Plaintiff’s Reply against the 1st Defendant’s Submissions the Plaintiff never bothered and eschewed from even attempting to justify or reconcile the above contentions. The Plaintiff does not have proof that they claimed for payment directly to the 1st Defendant as Principal rather than MILS (see 1st Defendant’s Written Submission, page 80) [99] As correctly pointed out by the 1st Defendant and as admitted by Dr Awad in his own evidence, the Plaintiff against its own contention that they had claimed for payments directly against the 1st Defendant, had instead admitted to not having proof of this contention. The relevant portions of the cross-examination are reproduced below: “MFM: We heard that. My question is if you would care to listen. Maybe you could answer it. My question is, having not been paid for your services rendered, as you claim now in court. For 2008, I provide my transportation services, I was not paid. Surely you would have at least written a letter to MILS or to PDB saying I have not been paid AWAD: I submit claim to Petronas. I submit the claim. MFM: Where is the evidence of your claim submitted to Petronas or PDB, I want to see? AWAD: It’s a claim submitted to Petronas. MFM: Where is it? AWAD: I don’t have it with me. MFM: You don’t have it. Neither do you have any letters as you claim now you have not been paid; neither do you have any letters you wrote to MILS or PDB saying that you have not been paid. AWAD: Well, I don’t have it here with me really. MFM: You don’t have it with you? AWAD: No.” [100] The above excerpt of the cross-examination plainly shows that the Plaintiff has no proof at all that it has made claims against the 1st Defendant for payments as a supposed Principal to the Agreement. The fact that this was not addressed at all even in the Plaintiff’s reply further supports the plausibility of the 1st Defendant’s contention that MILS is not its agent, at least in this respect. The Plaintiff vide its own letter dated 7.7.2008 admitted that MILS is the party making payment for their services. [101] It was submitted by the Plaintiff that the Plaintiff in its own letter to the 1st Defendant dated 7.7.2008 had admitted that MILS is the party who makes Payment to the Plaintiff for its services. Here, the 1st Defendant draws a glaring contradiction between the testimony of Dr Awad and the Plaintiff’s letter dated 7.7.2008. On one hand, Dr Awad’s testimony was that claims for payment were made directly against the 1st Defendant, Petronas, but on the other hand, the Plaintiff’s own letter admitted that payment should be made by MILS instead. Indeed, the contradiction is glaring. The admission that MILS was the supposed party making the payment in the letter reads. “Now that we are under the flagship of MILS perhaps with the same structure except with a different smell. It is indeed stinking as to date MILS have not been able to pay us in time…” “It seems and it appears that… and because of MILS incompetence we are somewhat getting paid now between 45 days and some extent 90 days” (emphasis added) [102] The discrepancy is obvious. It is utterly devoid of logic and reason since the Plaintiff asserts that it claims directly to the 1st Defendant as Principal (which they admitted to have no proof of) and instead admits that payment is expected to be made by MILS, and the duty to pay is borne against MILS. [103] Again, this contention was not addressed at all in the Plaintiff’s Submissions and Reply Submissions against the 1st Defendant’s Submissions. The Plaintiff itself made claims for payment against MILS rather than the alleged Principal, the 1st Defendant. (See 1st Defendant’s Written Submission, page 84 to 87) [104] In the same letter, the 1st Defendant submits that it is telling that against the Plaintiff’s contention that claims for payments was made to the 1st Defendant, the fact that the Plaintiff in its own letter admitted to expect payment from MILS is proof that the Plaintiff must have instead claim against MILS and not the Plaintiff. 105] Indeed, logically and reasonably so, the only reason that the Plaintiff admittedly expects payment from MILS is because the Plaintiff has made claims against MILS. [106] We do agree with the 1st Defendant, that this Court ought to take Dr Awad’s testimony with caution. The contradictions are clear and were not addressed in the Plaintiff’s own submissions. Court’s preliminary finding [107] Thus, in consideration of the above submissions and evidence, it is ultimately compelling that MILS is never at all material times the agent of the 1st Defendant. [108] The contemporaneous documents (inclusive of the Plaintiff’s own letter dated 7.7.2008, and the MILS Contract) together with the express conduct of the Plaintiff above, draws the compelling conclusion that MILS is not an agent and are mere Independent contractors of the 1st Defendant. The Plaintiff had conducted itself in the business and contract in this understanding. [109] And the Plaintiff herein, is estopped to now deny the above. The Court is again guided by the Federal Court’s decision in the Boustead Case referring to Lord Denning’s decision. Was MILS validly replaced as Transportation Manager subsequent to the 2nd Defendant’s withdrawal? [110] Now, it is plain that even the aforementioned finding would find the issue herein is in the affirmative. The Plaintiff itself admitted to have been “under the flagship of MILS” in its own letter. Not only that, it had admitted that MILS is the party to pay for its services and not the 1st Defendant. [111] However, the Court is of the view that the Defendants’ further contention on the validity of the MILS’ appointment must be addressed for the sake of completeness. [112] It is the submission of the Plaintiff that it has strenuously and continuously objected to the MILS’ appointment. The Plaintiff has afforded a few grounds supporting this contention namely that: (a) The Plaintiff never admitted and acknowledged MILS’ appointment as the new Transportation Manager replacing the 2nd Defendant. (b) The 2nd Defendant has failed to prove that it has withdrawn from its services as Transportation Manager. [113] Nevertheless, the Defendants have forwarded to Court, an abundance of evidences by documentary proof and of the Plaintiff’s conduct to reveal a totally opposite conclusion against the Plaintiff’s contention here. Plaintiff has received and has never objected against the Appointment Letter [114] The 1st Defendant submitted that the Plaintiff itself had admitted to accepting to the Letter Notifying of MILS’ appointment dated 30.1.2008 by the 1st Defendant and not forwarding even a single response or objection against that letter. The Appointment Letter clearly reads: “Merujuk kepada perkara di atas, dukacita dimaklumkan bahawa pihak Konsortium Logistik Berhad (KLB) telah menarik diri dan tidak menerima tawaran kontrak tersebut di atas. Sehubungan itu, pihak PETRONAS Dagangan Berhad (PDB) dengan in telah melantik MISC Integrated Logistics Sdn Bhd (MILS) sebagai Kontraktor Utama untuk mengurus syarikat tuan mulai 1 hb Februari 2008.” (emphasis added) [115] And the Plaintiff’s witness Dr Awad has admitted to accepting the Appointment Letter and not responding to it at all. “MFM: Yes, Thank you. Now, my next question having said that you are unhappy, fearful of losing money, having no choice, fearful of breaking your contract with KLB which you say is still continuing, did you write a single letter either to KLB or MILS or Petronas, or PDB rather, in response to this letter dated 30.1.2008? AWAD: Counsel, I am going to. MFM: Just answer my question please AWAD: I am going to answer you. I am going to answer you, ok. MFM: Did you write a single letter? AWAD: I didn’t MFM: Either to PDB or MILS or KLB, in reply to this letter dated 30.01.2008? AWAD: I didn’t write a letter, but I refused to sign the contract.” The Plaintiff never complained of MILS’ Appointment at least for 6 months after MILS’ appointment and before its letter dated 7.7.2008 [116] The 1st Defendant had also submitted that for at least 6 months after the Appointment was made, the Plaintiff had never even once written in protest against the appointment. [117] Dr Awad himself admitted during cross-examination the following: “MFM: So the point that I, to the question that I was asking just now, prior to 07.07.2008, six months preceding that right, there is not a single letter to PDB or MILS or KLB complaining about either the role of MILS or the non-payment to the Plaintiff or any such complaint? AWAD: No.” [118] It is apparent that the Plaintiff has never expressed any qualms against the appointment of MILS and had continued to procure services per usual. The Plaintiff opted to continue with business per usual after MILS’ Appointment [119] The 2nd Defendant alluded to Dr Awad’s cross-examination reproduced below where he has admitted to continue to provide services even after MILS’ appointment: “MFM: So, you made a choice, Dr Awad, to carry on because otherwise it would cost you a lot of money? AWAD: Because, as far as I concerned. MFM: Answer my question, please. AWAD: Sorry MFM: So you made a choice to carry on because otherwise it would cost you a lot of money. AWAD: Yes, to make it…” “MFM: But what you did instead Dr Awad, or rather what the Plaintiff did instead was to carry on its business as usual. AWAD: With my principal MFM: Doesn’t matter with who. Plaintiff carried on the business as usual. AWAD: Yes, with my principal.” [120] Considering the above excerpt, as had been found earlier, the 1st Defendant is never the Principal of the Plaintiff. Thus, when the Plaintiff admitted to continue to give services, it means that the Plaintiff had provided services to MILS. The misconceived assumption by the Plaintiff is irrelevant and does nothing to defeat the fact that the Plaintiff admitted to have continued to carry on business as per usual even after MILS’ appointment. The Plaintiff admitted to receive instruction from MILS [121] Despite the Plaintiff’s staunch yet tenuous contention that it has never approved of MILS’ appointment, it is peculiar to note that Dr Awad had instead admitted to have taken instructions from MILS. “ATW: So, despite me asking you and you confirmed that you do not take instructions nor correspond with MILS, or you don’t have. Yes or no only. Do you take instructions from MILS? YA: No. Mr. Arthur, you just let him answer, have you ever written letters to MILS. That’s it. AWAD: Yes, after April we take instructions from them. YA: Yes AWAD: After April 2008. YA: Ok. The answer is yes.” [122] The 2nd Defendant’s case is absolutely on point in pointing this admission out. Clearly, the Plaintiff acknowledged the authority of MILS. Otherwise, it would have not accepted their instructions. Plaintiff’s admissions in its Letter in Response to Suspension dated 7.7.2008 [123] Both of the Defendants have contended on this letter. A plain reading of this letter unravels a line of admissions that the Plaintiff has indeed acknowledged MILS as the new Transportation Manager replacing the 2nd Defendant. The relevant excerpts of the letter are discussed below: (a) Firstly, the Plaintiff themselves admitted that they are now under the management or “flagship” of MILS. “Now that we are under the flagship of MILS perhaps with the same structure except with a different smell.” (b) The Plaintiff also admitted that MILS is expected to pay them for their services. “It is indeed stinking as to date MILS have not been able to pay us in time…” (c) Upon the Plaintiff’s admission on expecting MILS’ payment, it is reasonable to infer that the Plaintiff submits its claim to MILS and not to the 1st Defendant as alleged Principal. Plaintiff’s acknowledgment of MILS’ authority in its letter dated 11.7.2008 (see Bundle B2, page 31) [124] This letter was issued by the Plaintiff in reply of MILS’ letter for compliance of the four conditions by the Plaintiff. However, a plain reading of the letter would reveal that the Plaintiff was docile and was never in protest of MILS’ authority to impose such conditions. The Plaintiff has even considered and appealed for alternatives and decision from MILS. The Plaintiff wrote: “As such we appeal for a well thought through decision and choices and fair policies as we are a vendor for the national oil company and would contribute for the nation and out growth with the help of your organization” (emphasis added) The Plaintiff admitted that it has not written anything to protest the authority of MILS to suspend their services [125] It was submitted by the 1st Defendant, and was never addressed by the Plaintiff in their reply, that Dr Awad has during cross-examination, admitted to have not written anything to protest MILS’ authority to suspend their services upon receiving the letter of suspension. The excerpt of the cross-examination is as follows: “MFM: Yes, ok. So even when you received this letter for suspension by MILS, you did not challenge MILS’ authority to suspend the Plaintiff? AWAD: I had nothing to do with them. MFM: You had nothing to do with them? AWAD: I have nothing to do with MILS. I don’t have any problem. MFM: And did you write to them to tell them that you had nothing to do with them? AWAD: Well, you see the suspension on the 13.06.2008. MFM: Did you write to them to tell that you had nothing to do with them? AWAD: I didn’t write to them because even they have not signed contract yet. They signed contract on 11.07.2008 and they suspend me even before that. MFM: Dr Awad, did you write to them to tell them you have nothing to do with them. AWAD: I didn’t write to them. I didn’t write to them, no. I didn’t write to them.” Court’s Finding [126] The Plaintiff vehemently submitted that the 2nd Defendant was not validly replaced by MILS. [127] In arguing this contention, the Plaintiff had spawned arguments as to the failure of the 2nd Defendant to prove that there was any withdrawal by them. And that the 2nd Defendant had failed to prove that the withdrawal was given consent by the Plaintiff. [128] All along the Plaintiff also conjured some arguments that the 2nd Defendant cannot submit evidences as they had opted to not lead evidences. This was mainly the reply of the Plaintiff against the 2nd Defendant’s submission. [129] However, against the same contention, this Court would ask this rhetorical question. If on the same argument the Plaintiff objects to the evidences of the 2nd Defendant, how could the Plaintiff then, in its venture to prove the Principal-Agent relationship, relies upon the evidences of the 2nd Defendant in its affidavit? Surely that would be unjust. The Plaintiff cannot be allowed to simply opt to use an argument while denying the Defendants to adopt a similar argument. [130] Nevertheless, even assuming that the 2nd Defendant retains no right to put forth some of their arguments, the evidences from contemporaneous documents, (being the Plaintiff’s own letters dated 7.7.2008 and 11.7.2008), admissions of Dr Awad in its testimony and the overall conduct of the Plaintiff lacking in any form of protest in fact, conducting themselves in support of the appointment of MILS (in continuing to provide services) draws the sublimely overwhelming inference and conclusion that, parties have continued to deal in their business with a common understanding that MILS is and was at all times a valid replacement to the 2nd Defendant. [131] And on the same authority of the Boustead Agency case, the Plaintiff is now estopped from denying this state of understanding. [132] Thus, it is in the Court’s view that MILS was rightfully appointed to replace the 2nd Defendant. The services of the 2nd Defendant were put to an end and its roles and standing was replaced with that of MILS. Breaches not attributable to the Defendants [133] Now, it entails from the earlier findings, namely: (a) MILS is not agent to the 1st Defendant and is merely an independent contractor; (b) MILS was validly appointed and has replaced the 2nd Defendant in its role and standing; and (c) the 2nd Defendant’s services is validly terminated and replaced with MILS that assuming, that even hypothetically there is any breach of the Sri Awad Agreement, by no means at all that the breach is attributable to any of the Defendants. [134] With the finding that MILS is rightfully appointed and acknowledged by the Plaintiff as sub-contractor of MILS, there is no room at all to link any breaches (if any) to any of the Defendants. [135] It was already found that it was MILS who had suspended and terminated the Plaintiff’s services in its own stead and none others. Thus, any breach of the Sri Awad Agreement, is the personal liability of MILS and not any time the Defendants’. [136] The Plaintiff has sued the wrong parties in this action. [137] Thus, the failure to bring MILS as a party to the dispute is fatal to the Plaintiff’s case. [138] Nevertheless, for the sake of completeness, the Court will allude to the breaches alleged but only on the pretext of MILS’ liability and not the Defendants’. There was no notice of termination of the Sri Awad Agreement by the 2nd Defendant as provided under clauses 8.1, 8.2 and 8.3 of the Sri Awad Agreement. (See Bundle B1, pages 217 – 219.) Thus, allegedly the Sri Awad Agreement remains subsisting. [139] Now, the 1st Defendant first submitted against this contention that the propriety of the Notice of Termination is non-issue in this dispute as it was not the pleaded case of the Plaintiff. And the Court agrees. The Plaintiff had specifically and meticulously specified and particularized the manner of breaches of the Sri Awad Agreement. And there was never a single mention of Clause 8 and/or its sub-clauses. The Plaintiff never pleaded that the Notice of Termination was improper. The Plaintiff’s pleadings are reproduced below: (see Bundle A, page 37) “PARTICULARS OF THE WRONGFUL TERMINATION OF THE PLAINTIFF’S SERVICES BY THE FIRST DEFENDANT (OR IN THE ALTERNATIVE BY THE SECOND DEFENDANT) UNDER THE FIRST CAUSE OF ACTION First Defendant (or in the alternative by the Second Defendant), had failed and/or neglected in the following: a) Failure to stop MILS, whom at all material times was acting as an agent to the First Defendant, from suspending the Plaintiffs services. b) Failure to withdraw all suspension of services done by the said MILS, whom at all material times was acting as an agent to the First Defendant, albeit knowing that the suspension was wrongfully done. c) Failure to adhere to Clause 11.5 of the Main Agreement which MILS, whom at all material times was acting as an agent to the First Defendant, when terminating the Plaintiff’s services under the accident issue as stated in paragraph 12 above.” d) Failure to consider all the practical efforts taken by the Plaintiff as stated in paragraph 12 above.” [140] It is apparent that the Plaintiff had even taken the liberty to identify the clause in which the Plaintiff intends to rely upon (clause 11.5). And it is clear that the propriety of the Notice of Termination under Clause 8 is not included in the Particulars of Breach. Thus, the Court’s hand is in a bind and the Court cannot discuss an issue which was not pleaded. [141] Thus, as the Notice of Termination remains unchallenged, what are left to be discussed are only the grounds which forms the spine of the termination. There was no justification for the termination of the Sri Awad Agreement by the Defendants. [142] Now, it was vehemently submitted by the Plaintiff that MILS or the Defendants retains no right to terminate the Sri Awad Agreement. The Plaintiff placed heavy reliance on clause 11.5 of the Sri Awad Agreement: “11.5 The Contractor shall terminate the employment of its driver who commit one or more of the following offences:-…” [143] However, this Court finds that reliance on the above clause 11.5 is verily an inaccurate application of the Sri Awad Agreement with the given facts of the case. [144] The reason being that clause 11.5 is specific to the termination of drivers of Sri Awad in the event one of the long line of offences was committed by the driver(s). [145] However, the present case at hand does not deal with the termination of the driver at all BUT THE TERMINATION OF THE CONTRACT (SRI AWAD AGREEMENT) ITSELF. [146] Hence, the proper clause to be applicable would be clause 8 of the Sri Awad Agreement which governs the terms for termination of the contract. [147] And in agreement with the 1st Defendant’s submission that the proper litmus test on the justifiability of the termination by MILS is to apply clause 8 of the Sri Awad Agreement, particularly clause 8.1 (d). (see Bundle B1, page 218): “8.1 Notwithstanding other provision in the Contract and without prejudice to any other remedies, which the Company may have against the Contractor, the Company has the right to terminate this Contract at any times by giving (30) days prior notice in writing to the Contractor in the event:… d. The Contractor is prevented from any cause whatsoever or fails to perform his obligations under this Contract due to the acts, omission or negligence of its employees, servants or agents;or” [148] Now, in the present case, the drivers of the Plaintiff were involved in two separate accidents which caused fatalities and also losses to the MILS. Indeed, in the meaning of the clause above, the Plaintiff ‘ fails to perform his obligations’. [149] The Plaintiff themselves, upon the 1st fatal accident had already admitted that it is caused by the negligence of its drivers: “MFM: And could I see the findings by the Plaintiff into this accident? What did, you disagree with MILS report, but what is the Plaintiff’s findings as to the cause of the accident? AWAD: Accident is negligence on the driver’s side. [150] While with regards to the 2nd accident where it was caused by the Plaintiff’s driver deviating from the established route, the Dr Awad himself admitted that it was indeed a breach of the Sri Awad Agreement: MFM: Yes, not without the authority of the company deviate from established route for unnecessary park, stop the vehicle. So my question is, based on this KLB agreement that the Plaintiff has been KLN, it is a breach of the agreement of the Plaintiff want to deviate from the established routes. It says that so, you know it says so that. AWAD: I agree with you. [151] Now notwithstanding if the 2nd accident is not admittedly a negligence, it does not defeat the admission that it is indeed a breach of the Sri Awad Agreement. [152] And even for a moment, assuming that the 2nd accident is not a ground to terminate the Sri Awad Agreement (which the Court finds it is), the 1st accident is reported and is admitted to be caused by the Plaintiff’s driver’s negligence. And on that basis alone, MILS is justified to invoke clause 8.1(d) of the Sri Awad Agreement to terminate the Agreement with the Plaintiff. The Defendants has breached clause 6 of the Sri Awad Agreement as the minimum continuous contractual period of 8 years was not adhered to. [153] The Court shall only allude to this contention by the Plaintiff very briefly as the literal reading of the Contract suffices to unravel the misinterpretation afforded by the Plaintiff. The Court sees no rhyme or reason to deviate from such a clear and succinct clause in the Sri Awad Agreement, namely clause 6. The clause reads: “6.1 Unless terminated earlier in accordance with the provision of this Contract, this Contract shall expire after a period of four (4) years from the Commencement dated (hereinafter referred to as the “Initial Period”) 6.2 At the end of the Initial Period, the parties may agree in writing to extend to the Contract for a further two (2) years (hereinafter referred to as “Extended Period 1”) and thereafter for a further two (2) years (hereinafter referred to as “Extended Period 2”) both of which, together with the Initial Period shall be referred to as the “Contract Duration”) upon terms and conditions to be mutually agreed upon…In the event either party wishes to extend the Contract for either Extended Period 1 or Extended Period 2 or both, the requesting Party shall notify the other Party of their intention to do so six (6) months before the expiry of the Initial Period or the Extended Period 1, as the case may be.” [154] In plain sight and beyond a single shade of doubt, the clause never mention of an ‘automatic’ term of 8 years. It is clear as day that the contract expires after 4 years with an opportunity to extend twice, the term of 2 years. [155] And against this automatic term of 8 years, it is at this point unsurprising that the Plaintiff itself has admitted against this contention and admitted that the contract expires after 4 years. This is blatantly apparent in its letter dated 7.7.2008. (See Bundle B3, page 42) “The setting up of Sri Awad is also for the owners to manage the transport business on bigger scale. Earlier SE (Sri Enterprise) had entered into a second fresh agreement with KLB for dedicated transportation services of bulk petroleum products for a period of 4 years which ended September 30, 2007 with an option of renewal for another 4 years. The Contract is now subordinated to Sri Awad” Plaintiff admitted non-compliance to the procedures of extension. [156] On the same note, the Clauses above briefly requires that in view of an extension, parties must first, have a written agreement to the extension(s)’ effect and the party intending to extend must notify the other party 6 months before the Sri Awad Agreement’s expiration. [157] On both requirements, Dr Awad, the Plaintiff’s witness had admitted that the Plaintiff has not complied with both of the above requisites. The Plaintiff neither has a written contract for extension nor any request for extension 6 months before expiration. (See NOE Vol. 1, 12.11.2014, pages 158) “FMD: The Second Defendant. Okay, so they promised to give to you. So before this court, we do not have an agreement in writing to extend the contract, agreed? AWAD: Yes. FMD: Okay. Neither do we have a request either by KLB or by Plaintiff six months prior to the expiry, to extend the contract. AWAD: Yes, they agree. FMD: No, is there a request? You see, the agreement says the requesting party shall notify the other party of their intention to do so six months before the expiry of the initial period or the extended period, as the case may be. So I just want to know whether there is such notification from either side – Second Defendant or Plaintiff as required under Section 6.2. AWAD: No. FMD: There is none, yes? AWAD: Yes.” Issue (a) and (b) of the 2nd Cause of Action shall be dealt together. (a) Was there a contract of supply of tankers between the Defendants and the Plaintiff? (b) Was there a breach of the alleged contract of supply of tankers by the Defendants? [158] Briefly, the Plaintiff’s 2nd Cause of Action is that the Defendants (more specifically the 2nd Defendant) had offered the Plaintiff and breached an Agreement for the Manufacturing and Supply of a number of tankers for the purpose of transporting the 1st Defendant’s petroleum products. [159] From the outset, it must be noted that there is no physical written contract of the alleged Order Agreement. The Order Agreement is submitted to be derivative of a line of correspondences, which led to the Plaintiff to manufacture the tankers (allegedly). [160] Throughout the trial, there are three fundamental documents in Court which was submitted by the parties to the dispute. Those documents being: (a) The 2nd Defendant’s Tawaran Kemasukan Lori Tangki Baru – Penggantian dated 15.12.2004 (ref. no: BLDD/TGL/29/12/04) (“Letter of Offer”) (see B1, page 1 to 2) (b) The Plaintiff’s Letter to the 2nd Defendant dated 31.1.2005 referring to the Plaintiff’s letter no BLDD/TGL/29/12/04 (“Rejection Letter”) (see Bundle B2, page 43) (c) The 2nd Defendant’s letter dated 8.2.2005 (“Rejection Confirmation Letter”) (see Bundle B1, page 3) [161] Now, the Plaintiff’s submission is that, based on the 2nd Defendant’s Letter of Offer, the Plaintiff had went out of their way to manufacture and pay the deposit for the tankers and had even entered into a Hire Purchase Agreement with the MIDF pursuant to the Letter of Offer. Thus, when the Defendant’s refused to accept the tankers and refused payment, the Defendants have breached the Order Agreement and caused losses to the Plaintiff. Plaintiff’s Rejection Letter dated 31.1.2005* *This Court takes notice of the fact that this Rejection Letter is mistakenly dated 31.1.2004. However, this has been explained to be a typo error during trial. [162] Now, despite the Plaintiff’s submission above, the contemporaneous documents put in Court seems to deem the Plaintiff’s submission not even the least plausible or probable. [163] Specifically in reference to the Plaintiff’s own Rejection Letter. The 2nd Defendant’s submission is that there is no ground at all that the Plaintiff would put itself in that detriment alleged as the Plaintiff itself has made it clear that it rejects the 2nd Defendant’s Offer Letter. [164] Now, against the 2nd Defendant’s reliance on the Plaintiff’s Rejection Letter, the Plaintiff submits that the 2nd Defendant had misconstrued the Letter merely because there were no such words of “unable to accept the offer”. [165] The Court highlights here that there is no law, even to the farthest stretch of the legal imagination that stipulate that an offer can only be rejected using the words “unable to accept the offer”. As long as any statements, is to the effect of rejecting the Offer, it is a rejection. [166] The Rejection Letter could not be clearer. Firstly, the letter’s reference clearly refers to the 2nd Defendant’s Offer Letter. It is written in the top right corner of the Letter underneath the Particulars of the Receiver: “Reference BLDD/TG/29/12/04” [167] The 2nd Defendant’s Offer Letter’s Reference number is indeed BLDD/TG/29/12/04. There is not a single shade of doubt that the Rejection Letter refers to the Offer Letter. [168] Even the opening paragraph of the letter writes: “Thank you for the confidence in our company on above offer” [169] And in effect of the Plaintiff’s rejection, the Plaintiff itself wrote: “We advise you that we had several discussion and negotiation with RJ Was Link Sdn Bhd. However, we regret to inform that we are unable to reach an amicable agreement to proceed with arrangements made by Konsortium Logistik Berhad vide your letter dated December 15, 2004” [170] It is immensely obvious that the Plaintiff was unable to reach an agreement. When an agreement could be reached, then it entails that there is never any agreement. The Plaintiff’s contention against this letter therefore, fail and devoid of any legal and/or factual reasons. 2nd Defendant’s Rejection Confirmation Letter dated 8.2.2005 [171] This letter was issued by the 2nd Defendant in reply to the Plaintiff’s Rejection Letter. The content of the letter is nothing short of clarity. It clearly refers to the Rejection Letter dated 31.1.2005 and the Offer’s reference number: “Per: Tawaran Kemasukan Lori Tangki Baru – Penggantian Surat tuan BLDD/TGL/29/12/04 bertarikh 31hb Januari 2005 berhubung perkara di atas dirujuk. Kami dengan ini mengesahkan bahawa syarikat tuan telah menolak tawaran kemasukan penggantian lori tangki yang dikeluarkan oleh KLB pada 15hb Disember 2004 melalui surat tuan di atas. Maka dengan ini tawaran yang dikemukakan tersebut dibatalkan dan KLB berhak menawarkan penggantian ini kepada kontraktor lain.” Plaintiff’s wrongful reliance to the Offer Letter [172] Now, in the last bid to salvage this failing contention, the Plaintiff submitted that notwithstanding the Plaintiff’s own Rejection Letter in the year 2005, the Plaintiff had already paid deposits over the tankers in 2004. The Deposit was paid on the supposed reliance on the content of the Offer Letter which reads: “Walaubagaimanapun sekiranya tiada apa-apa tindakan susulan untuk membeli lori tangki tersebut sehingga 01hb Mei 2005, maka tawaran ini akan dengan sendirinya terbatal” [173] However, a plain reading of the Plaintiff’s contention would reveal that the contention is not even logical in its timeline. It goes beyond any logical reconciliation and reason that firstly in the year 2004, the Plaintiff took steps to pay deposits for the tankers pursuant to the offer and subsequent to the alleged payments, in the year 2005 AFTER the payment, the Plaintiff suddenly opted to reject the Offer and was unable to reach an agreement. [174] It is undoubtedly clear that the Plaintiff cannot make any logical reconciliation to this utterly illogical alleged turn of events. The Plaintiff’s contention here completely and utterly fails. Court’s findings [175] The Plaintiff had utterly failed to prove any existence of an Agreement for the supply of tankers. The testimonies and contemporaneous evidences discussed above divulge the undeniable conclusion that the Plaintiff themselves had rejected and cancelled the 2nd Defendant’s Offer. Thus, there was no Agreement to begin with. [176] Therefore, there is never any breach of the non-existent Agreement as fallibly contended by the Plaintiff. [177] The Court is again guided by the Court of Appeal decision in the case of Lee Ing Chin and also the case of Boustead Agency that the Plaintiff should be estopped from denying the fact that the Plaintiff itself has rejected the Offer Letter and has never entered in the Agreement with the 2nd Defendant. Court’s decision and Order as to Costs [178] The Court therefore, dismisses all of the Plaintiff’s claims in this action and therefore, dismisses the Plaintiff’s action. [179] Having heard brief submissions from counsels for the Plaintiff, the 1st Defendant and the 2nd Defendant, this Court hereby orders that the Plaintiff to pay each of the Defendants costs of RM50,000.00 amounting to a total of RM100,000.00. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 22th day of April, 2015. For the Plaintiff - Messrs Ramesh & Loo Mr. Ramesh Sivakumar Messrs Avtar Singh Mr. Avtar Singh, Mr. Amarjeet Singh For the First Defendant - Tetuan Moideen & Max Mr. Faizal Moideen, Mr. Max Tai, Mr. Aloysius Susek For the Second Defendant - Tetuan Arthur Wang Lian & Associates Mr. Arthur Wang Ming Wey 14

Tika 2.6.0

24NCC-48-05/2014

PEMOHON PENINSULAR PARK SDN BHD PENCELAH 1. AI-AF HOLDINGS SDN BHD 2. ALIAS BIN MOHD SALLEH 3. CHAN CHOONG HON 4. CHUA LIANG CHUANH 5. LIM CHIAN PENG 6. SIN KHUAN OI 7. YEO BIN ENG 8. AZIZI BIN YOM AHMAD 9. FRANCIS CHIA MONG TET 10.LEE MIN HUAT 11.SIVAMALAR A/P VELUPPILLAR 12.KUNG BENG HONG 13.LEE CHEN YE 14.LOO MEI MEI 15.NAJIAH BINTI ABDULLAH 16.NIK AZALAN BIN NIK A.KADIR 17.EE CHING TYUN 18.PAULINE MELISSA DRURY 19.KWONG LAI MAY 20.ROSLAN BIN AWANG CHIK 21.SOONG TECK ONN 22.TANG PAK LEONG 23.TANG PIAN NAM 24.WONG JUAT BOEY 25.YIKE CHEE WAH

14/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9280be12-a7ee-46bd-9935-051cbcb42a6c&Inline=true

Microsoft Word - 24NCC-48-05-2014 Al Af Holdings Sdn Bhd dan 24 Yang Lain Lwn Peninsular Park Sdn Bhd 1    DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO. : 24NCC-48-05/2014 Dalam perkara Peninsular Park Sdn Bhd (No. Syarikat: 218312-M); DAN Dalam perkara cadangan skim penyusunan semula Pemohon selaras dengan S176 Akta Syarikat 1965 (“Akta Syarikat”); DAN Dalam Perkara Kaedah-kaedah Mahkamah, 2012 PENINSULAR PARK SDN BHD …PEMOHON ANTARA 1. AI-AF HOLDINGS SDN BHD 2. ALIAS BIN MOHD SALLEH 3. CHAN CHOONG HON 4. CHUA LIANG CHUANH 5. LIM CHIAN PENG 6. SIN KHUAN OI 7. YEO BIN ENG 8. AZIZI BIN YOM AHMAD 9. FRANCIS CHIA MONG TET 10. LEE MIN HUAT 11. SIVAMALAR A/P VELUPPILLAR 12. KUNG BENG HONG 13. LEE CHEN YE 14. LOO MEI MEI 2    15. NAJIAH BINTI ABDULLAH 16. NIK AZALAN BIN NIK A.KADIR 17. EE CHING TYIN 18. PAULINE MELISSA DRURY 19. KWONG LAI MAY 20. ROSLAN BIN AWANG CHIK 21. SOONG TECK ONN 22. TANG PAK LEONG 23. TANG PIAN NAM 24. WONG JUAT BOEY 25. YIKE CHEE WAH …PENCELAH-PENCELAH YANG DICADANGKAN GROUNDS OF JUDGMENT (ENCLOSURE 3) [1] Enclosure 3 is an application filed by twenty five (25) parties comprised of one company by the name of Al-Af Holdings and 24 individuals. Through Enclosure 3, the 25 parties (hereinafter referred to as “the proposed interveners”) sought leave from this Court to intervene in the Ex Parte Originating Summons (Enclosure 1) initiated by the Applicant {Peninsular Park Sdn Bhd (In liquidation)}. In addition to seeking leave to intervene, the proposed interveners also applied for leave to be added as Respondents/ Defendants in the Applicant’s proceeding. Enclosure 3 was filed by the proposed interveners pursuant to Order 15 Rule 6, of the Rules of Court 2012 (ROC). 3    [2] The proposed Interveners’ grounds in filing the Enclosure 3 is essentially that being purchasers of units/plots of the Legend Farmstead, they are named/listed as creditors in the Scheme of Arrangement (“SOA”) and therefore they have a direct interest in the (SOA) that the Applicant seeks vide Enclosure 1. Enclosure 1 is filed pursuant to section 176(3) of the Companies Act 1965. [3] At this juncture, for better understanding of the case, it is only appropriate for this Court to set out the brief background facts that give rise to the proposed interveners’ application. 3.1 The Applicant was wound up by the High Court of Malaya Kuala Lumpur on 10/2/2011. On 16/8/2011, by the order of the High Court of Malaya at Kuala Lumpur, one Chong Chuan Long was appointed the Liquidator of the Applicant. 3.2 At all material times, the Applicant is the registered owner of 2 parcels of land held under Grant No. 39220 and 39221, Lot No. 2496 and 2565, Mukim Batang Kali, Daerah Ulu Selangor, Negeri Selangor (the said lands). 3.3 In April 1993, the Applicant commenced a development project on the said 2 parcels of land and the development project is known 4    as “the Legend Farmstead.” However, the Legend Farmstead’s project could not be completed. 3.4 The Proposed Interveners are among the purchasers of housing lots in the failed Legend Farmstead project. 3.5 The said Lands were charged to Alliance Bank Bhd and to Sinesinga Sdn Bhd as the 1st and 2nd chargees respectively. 3.6 On or about 18/6/2012, the Applicant received an offer from Hana Bestari Sdn Bhd (HBSB) to settle the outstanding sum due to the chargees of approximately RM72,000,000.00 in total (the outstanding sum) and upon settlement of the outstanding sum, HBSB shall procure a “White Knight” to undertake the debt restructuring of the company under the terms of the Scheme of Arrangement (the SOA) as stipulated in the Explanatory Statement to free the Land from the claims and/or interest of the Purchasers. 3.7 The Applicant had on 20/6/2012 accepted HBSB’s offer. According to the Applicant, the primary reason for accepting the offer was that the Purchasers would see a return under the SOA as opposed to no returns in the event of foreclosure and after settlement of the outstanding sum. 5    3.8 On 21/6/2012 and 18/9/2013, HBSB fully settled the outstanding sum to Sinesinga and to Alliance respectively. The said lands were redeemed and are now free from any charge. 3.9 The Applicant vide an Originating Summons No. 24-1282-09/2013 which was filed in the High Court of Malaya at Shah Alam, on 17/9/2013 had obtained an Order to convene a meeting of the Scheme Creditors (the CCM) under Section 176 (1) of the Companies Act 1965 ( the Act). The meeting was held on 13/12/2013 in which the Applicant claims that the Scheme secured the majority required under Section 176 (3) of the Act. 3.10 The terms of the SOA are contained in the Explanatory Statement (ES) issued under Section 177 of the Act. On 13/12/2013, the CCM was convened. (The ES was previously circulated to the Purchasers (“the Scheme Creditors”). The CCM proceeded to vote by way of poll. 3.11 The results of the CCM were as follows: a) 79 votes casted in favour of the SOA representing 75.96% in number and RM8,085,594.16 (or 82.13%) in value; b) 25 votes against the SOA representing 24.04% in number and RM1,759,808.77 ( 17.87%) in value. 6    3.12 The SOA was approved with the requisite majority of more than 50% in number and 75% in value of the Scheme Creditors present and voting at the CCM. 3.13 Thereafter, pursuant to Section 176 (3) of the Act, the Applicant in seeking sanction of the SOA filed Enclosure 1 for inter alia the following orders: i. The scheme of Arrangement as set out in the Explanatory Statement as exhibited in the Affidavit affirmed by Chong Chuan Long on 28.5.2014 and marked herein as Schedule “A” which has been circulated to the Purchasers (“the Scheme Creditors”) as set out in the Explanatory Statement, be hereby approved by this Honourable Court and shall be binding on the Scheme Creditors pursuant to Section 176(3) Companies Act, 1965; ii. That pursuant to Order 62 of the Rules of Court 2012, the Applicant may serve a photocopy of the Order herein upon the Scheme Creditors by way of pre-paid registered post addressed to their last known address and in the event such persons are incorporated bodies, upon such incorporated bodies and their directors and/or officers, by way of pre-paid registered post or by courier addressed to the head or principal office of such persons or by advertising the same once in Bahasa Malaysia in the Berita Harian or Utusan Malaysia and once in the English Language in the News Straits Times or the Star newspaper within 14 days from the date of the Order and such service of the Order herein; 7    iii. That an office copy of the Order herein be lodged with the Companies Commission of Malaysia within 14 days from the date of the Order; iv. That all private caveats entered on the land known as Geran Nos. 39220 and 39221, Lot Nos.2496 and 2595, Mukim Batang Kali, Daerah Ulu Selangor, Negeri Selangor (“the said Land”) shall be removed within 7 days from the date of service of the Order on the Registrar of Title; [4] In their affidavits in support of Enclosure 3, the proposed interveners have objected to sanction or approval being granted to the SOA by the Court and raised various objections. They alleged that there are irregularities in the execution of the scheme creditors’ meeting (CCM) and irregularities in the counting/calculation of votes in which they claimed that the majority support of the SOA required under section 176(3) of the Act was actually not achieved. [5] The proposed interveners also opposed the SOA and objected to any sanction given to the SOA on the ground that if the scheme is approved, the proposed interveners being purchasers of lots via Sale and Purchase agreements with the Applicant are creditors of 8    the Applicant, will be directly affected by the SOA in the following manner: (i) the SOA will be binding on them. (ii) they will only be entitled to 10% of the purchase consideration that they have paid to the company for their lots; (iii) they will lose all their contractual/other existing rights against the Applicant; and (iv) any caveats on the land that have been entered by them will then be removed. [6] It is the proposed interveners’ stance that they are forced to file Enclosure 3 to challenge the validity of the vote/scheme meeting, to defend their legal right and to prevent their caveats on the lands from being removed. [7] Before this Court considers whether the proposed interveners ought to be granted leave to intervene or ought to be given leave to be added as Respondents/Defendants in the Applicant’s proceeding pursuant to Order 15 Rule 6 of the ROC and whether there are any merits in the proposed interveners’ application it would be useful for this Court to briefly summarise the legal principles on intervention and joinder of parties. The law on intervention or joinder of parties is trite and well settled. The 9    granting of leave to intervene or leave to be made a party in a proceeding is a discretionary one. Generally, the court will grant an applicant leave to intervene if he can show that he has an interest directly related to the action. However, authorities have established that the interest the applicant must have or possess means a legal interest not a mere commercial interest. [8] Kerr LJ in the case of Sanders Lead Co Inc v Entores Metal Brokers Ltd [1984] 1 WLR 452, in expressing his view on the meaning of interest required for purposes of intervention had said at page 460 as follows: “In my view, the rule requires some interest in the would-be intervener which is in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action, is not enough.” [9] The principle enunciated by the Court of Appeal in the case of Sanders Lead have been applied in a number of Malaysian cases. (See: i. Tohtonku Sdn Bhd v Superace M) Sdn Bhd [1989] 2 MLJ 298 ii. Lee Meow Lim v Lee Meow Nyin (t/a Cheong Fatt 10    Merchant) iii. Nabisco Brands (M) Sdn Bhd, Intervener [1990] 3 MLJ 123). [10] In the case of Tohtonku Sdn Bhd v Superace (M) Sdn Bhd (1992) 2 MLJ 63, the Supreme Court in dismissing an appeal against the order of the High Court allowing applicant’s application to intervene in the proceeding before it, held inter alia as follows: “In determining whether a party may be added as an intervener, the test is if his 'legal interests', ie his rights against or liabilities to any party to the action in respect of the subject matter of the action would be directly affected by any order or judgment which might be made in the action. Applying the test the answer to the question was definitely in the affirmative where the respondent was concerned and therefore the High Court was correct in its decision allowing the respondent to intervene in these proceedings.” (emphasis added) [11] Order 15 Rule 6 of the ROC provides the following: Misjoinder and non-joinder of parties (O. 15, r. 16) (1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any 11    cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. (2) Subject to this rule, at any stage of the proceedings in any case or matter, the Court may on such terms as it thinks just and either of its own motion or on application- (a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (b) order any of the following persons to be added as a party, namely- (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or (ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. (3) An application by any person for an order under paragraph (2) adding him as a party shall, except with the leave of the Court, be 12    supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter. (4) A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized. [12] The relevant provision on which the proposed interveners’ application hinges upon is Order 15 r. 6(2)(b) of the ROC. In summary, Order 15 r. 6(2)(b) provides that a person may be added as a party on the following instances: (a) When that person should be heard and “ought to have been joined as a party”; (b) When that person’s “presence before the Court is necessary to ensure that all matters in dispute...may be effectually and completely determined and adjudicated upon”; or (c) Where it would be just and convenient for the Court to determine the questions and issues between the person and a party relating to the relief claimed by the party. 13    [13] Lord Diplock in delivering the judgment of the Privy Council in the case of Pegang Mining Co Ltd v Choong Sam Ors (1969) 2 MLJ 52 in affirming the decision of the Federal Court in allowing the application of the first respondent for leave to substitute his name in place of the appellant in the appeal, formulated an approach for the Court to consider when exercising its discretionary power under Order 16 rule 11 of the Rules of Supreme Court (R.S.C) 1957. Lord Diplock’s approach is as follows: “….. one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard.” [14] Lord Diplock went further and said: It has been sometimes said as in Moser v Marsden and in In re I.G. Farbenindustrie A.G. that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than 14    another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between 'legal' and 'commercial' interests helpful. A better way of expressing the test is. will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?” [15] The approach formulated by Lord Diplock in Pegang Mining has been adopted in numerous local decisions. (See: Eh Riyid v Eh the [1976] 1 MLJ 26 Arab; Malaysian Merchant Bank Bhd v Dr Jamaludin Dato’ Mohd Jarjis [1991] 2 MLJ 27, SC; Ingeback (Malaysia) Sdn Bhd v East West-UMI Insurance Berhad & Ors [1994] 2 CLJ 387, HC; Tsoi Ping Kwan v Medan Juta Sdn Bhd & Ors [1996] 3 AMR 3591; [1996] 4 CLJ 553; [1996] 3 MLJ 367, CA, at 380; Soo Hong & Leong Kew Moi v United Malayan Banking Corp Bhd & Anor [1997] 1 MLJ 690, CA; Takang Timber Sdn Bhd v Government of Sarawak & Anor [1998] 4 MLJ 42, CA) [16] Thus from the numerous authorities cited above, it is patently clear that for this Court to allow the proposed interveners to intervene or to be added as a party, the proposed interveners must show to this Court that from the circumstances of the matter, the proposed 15    interveners have legal interest A mere commercial interest in the outcome of the matter before this Court does not justify intervention or joinder as a party. [17] The proposed interveners’ application is strenuously objected to by the Applicant and it was argued on behalf of the Applicant that the proposed interveners have no right to intervene in the Applicant’s application for the Court’s sanction on two grounds, namely: (i) the proposed interveners have no locus standi to intervene (ii) the proposed interveners’ application is without merits. (i) the proposed interveners have no locus standi to intervene [18] It was submitted on behalf of the Applicant that the law is trite that under Section 176(1) of the Act, the Applicant may enter into a compromise of arrangement between its creditors or a class of creditors. According to the Applicant, in this case the Applicant chose to enter into the SOA with its creditors namely the Scheme Creditors. Following this option, the SOA was put up and an application was then made to the High Court pursuant to section 16    176(1) for a Court order to convene a meeting with the Scheme Creditors. The Court on 17.9.2013 granted an Order for the Applicant to convene a meeting with the Scheme Creditors. It was submitted by counsel for the Applicant that under the proposed SOA, the Scheme Creditors are defined as “the purchasers who have entered into sale and purchase agreements with the Company (the Applicant herein) to purchase lots under the Project namely the Legend Farmstead” (in which the proposed interveners are not). [19] It was argued by the Applicant, from the outset the proposed interveners nos. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 21 were eighteen proposed interveners who are not within the definition of Scheme Creditors as their Sale and Purchase Agreements have been validly terminated. It is the contention of the Applicant in its Affidavit in Reply (II) that the SPA’s of the eighteen proposed interveners have been validly terminated. This averment was not rebutted or denied by the eighteen proposed interveners. They also did not challenge the validity of the termination. 17    [20] Hence, it was submitted by the Applicant that since the eighteen proposed interveners had not rebutted or denied this averment in their affidavit, nor have they commenced any action against the Applicant in respect the termination, therefore they are deemed to have accepted the termination of their SPA’s. [21] Counsel for the Applicant further submitted that since the Scheme Creditors do not include the purchasers who had their respective SPA’s validly terminated, the eighteen proposed interveners no longer have any legal interest in the matter before this Court, and thus they lack any locus standi to intervene in the Applicant’s proceeding. [22] In respect of the 22nd and the 24th proposed interveners, Azizi Bin Yom Ahmad and Nik Azlan bin Nik A Kadir, it was submitted on behalf of the Applicant that although both the 22nd and the 24th proposed interveners had valid and subsisting SPA’s, however both of them had failed to attend the CCM without providing any valid reason. As such they have on their own accord failed to exercise their rights. According to the Applicant, failure in attending the CCM without proper valid reasons constitutes a waiver of their legal rights. 18    [23] It is also the argument of the Applicant that the reasons stated by the proposed interveners cannot per se constitute grounds for intervention as the Applicant’s proceeding before this Court is pursuant to section 176 of the Act and there are salient points in the Scheme itself which has been formulated as per the terms of the SOA. It was further submitted by the Applicant that the Applicant is at liberty to enter into the SOA with its class of creditors, and here the class of creditors must be purchasers with a subsisting and valid SPA. [24] The proposed interveners on the contrary submitted that all the interveners have the requisite legal interests notwithstanding whether their contracts or SPA’s were terminated or if there was non-attendance at the CCM or whether they were disallowed from voting. It was further submitted that the attendance of the interveners in the CCM is irrelevant because a Scheme Creditor who did not attend or vote is still entitled to demand that the Scheme Creditors Meeting is carried out according to the law and that the mandatory statutory majority is achieved since they will be bound by the SOA when sanction or approval is granted by the Court. The Applicant / Scheme Proposer according to the 19    proposed interveners has no right to bind the proposed interveners regardless of whether they attended the CCM or not, until and unless the Scheme satisfies all the legal requirements. [25] It was argued for the proposed interveners whose contracts were terminated that they still have a legal interest in the Applicant’s proceeding as the Scheme affects their legal rights even though they were not allowed to take part in the Scheme Meeting. Further, according to the proposed interveners, the purported termination of an intervener’s contract or SPA does not prevent the interveners from having a legal interest. The legality of the termination is an issue/question arising out of; relating to; and connected with the relief claimed by the company and therefore pursuant to Order 15 Rule 6 (b) (ii), the proposed interveners must be given leave if the Court is of the opinion that it is just and convenient to determine such issue. [26] It was further argued by the proposed interveners that the Applicant has not denied that all the proposed interveners will be legally bound by the sanction order. Upon sanction granted to the SOA, the proposed interveners’ contractual rights will be extinguished. The proposed interveners whose contract were 20    terminated will still be bound by the Scheme and the company debt to all the interveners will be cut to 10% of the amount due and owing. The proposed Interveners find support of their arguments by relying on the Privy Council’s decision in the case of Pegang Mining Company Ltd v Choong Sam & Ors (1968) 1 LNS 96. Court’s finding on the issue of locus standi issue [27] It is clear that the Applicant’s application before this Court is filed pursuant to section 176 (1) of the Act. Section 176 of the Act generally relates to scheme of arrangements and compositions proposed by ailing companies or companies which had gone into liquidation and its creditors or any class of creditors or between the company and its members or any class of them. It is a clear law that section 176 provides a machinery for companies and its creditors or between the company and its members or any class of them to come up or put up a scheme of compromise or arrangement between themselves. Section 176 of the Act is equivalent to section 120 of the English’s Companies (Consolidation) Act 1908. The scope of section 120 of the Companies (Consolidation) Act 1908 has been explained by Younger J in an English case of Re Guardian Assurance 21    Company [1917] 1 Ch 431. Younger J in construing section 120 said at page 441 as follows: “Its purpose is strictly limited: it does not confer powers; its only effect at any time is to supply, by recourse to the procedure thereby prescribed, the absence of the individual agreement by every member of the class to be bound by the scheme which would otherwise be necessary to give it validity.” [28] In other words, section 176 only confers a mechanism that a scheme of arrangement or compromise can be put up between the parties namely the company and its creditor or any class of creditors or between the company and its members or any class of them. However, under section 176(3) of the Act, ultimately the Court is the one which has been vested with the power to approve the scheme of arrangement or compromise. In the present case, the Applicant has chosen to enter into the SOA with a class of creditors namely the Scheme Creditors. It is not in dispute that the Scheme Creditors in the proposed SOA are defined as Purchasers who have entered into sale and purchase agreements with the company to purchase lots under the Legend Farmstead project. 22    [29] The Applicant had averred in paragraph 7,8 and 9 of its Affidavit In Reply affirmed by Chong Chuan Long (Liquidator) on 2 September 2014 and paragraph 7 of the Affidavit In Reply (II) by the same Chong Chuan Long affirmed on 30 September 2014 that the SPA of the eighteen proposed interveners have been terminated. [30] For ease of reference, the relevant paragraphs are reproduced below: (a) Paragraphs 7, 8 and 9 of Affidavit In Reply affirmed by Chong Chuan Long on 2 September 2014: 7. As a starting point, I state that only 8 out of the 25 Proposed Interveners were allowed to vote during the Court Convened Meeting held on 13.12.2013 (“the said Meeting”). I state this in reliance to Exhibit 3 of the Proposed Interveners Affidavits in Support. However, only 6 out of the 8 eligible to vote had attended in person or by way of their proxy and had voted against the SOA during the said Meeting. I state this in reliance to the List of Attendees of the said Meeting. 23    Now shown and produced to me is a copy of the List of Attendees of the said Meeting and marked as Exhibit “CCL- 6”. 8. I state that the reminder of the Proposed Interveners were not entitled to vote to approve the said SOA during the said Meeting as their Sale and Purchase Agreements (“SOA”) had been terminated. I have been advised by the Applicant’s solicitors and verily believe that the termination of the Proposed Interveners’ SPAs were justified as there was an express term provided in the SPAs that the Applicant is entitled to terminate the same in the event a private caveat was lodged by any purchasers without the prior written consent of the Applicant. 9. In any event, I state that prior to the termination of the Proposed Interveners’ SPAs, I had instructed my solicitors to issue a Notice dated 25.11.2013 to the relevant Proposed Interveners to among other remove their private caveats which were entered on their respective lots on the said Land in the said Project by 1.12.2013 failing which their SPAs will be terminated effective 2.12.2013 without further notice. 24    Now shown and produced to me are copies of the Notices dated 25.11.2013 to some of the Proposed Interveners and marked collectively as Exhibit “CCL-7” (b) Paragraph 7 of Affidavit In Reply II affirmed by Chong Chuan Long on 30 September 2014:   7. With regard to paragraph 7 of the Proposed Interveners’ Affidavit in Reply, I am advised by the Applicant’s solicitor s and verily believe that just because an explanation can be given as to why the Proposed Interveners committed a breach of the SPA does not render the breach proper. I am further advised by the Applicant’s solicitors and verily believe that the Proposed Interveners’ action in failing to remove the private caveats remains a breach and therefore entitled me to terminate the SPAs. I also state that the Proposed Interveners did not dispute that they have breached the SPAs. [31] These averments were never rebutted and/or denied by the eighteen proposed interveners. They also did not challenge the validity of the termination by the Applicant in any other action. In this instance, this Court fully agrees with the Applicant that the eighteen proposed interveners were initially purchasers who had 25    entered into sale and purchase agreements to purchase units in the Legend Farmstead and had paid 10% deposit of the units. However, when the SPA’s of these eighteen proposed interveners were validly terminated, they can no longer claim that they are still the purchasers of units who had entered the SPA with the Applicant. The effect of the valid termination of their SPA’s by the Applicant is that the eighteen proposed interveners ceased from being purchasers who have entered into sale and purchase agreements with the Applicant. They lost their stand as purchasers with subsisting SPA’s and therefore they cannot be a part of the Scheme Creditors defined in the SOA. When they do not come within the definition of Scheme Creditors, the eighteen proposed interveners do not have the requisite legal right or interest to intervene or to be joined as parties in the Applicant’s proceeding. [32] This Court must emphasise here that under section 176 of the Act, the Applicant is at liberty to enter into the scheme of arrangement or compromise with its creditor or class of creditors. Here, the crucial terms of the SOA, the class of creditors are purchasers with subsisting and valid SPA. 26    [33] While in the case of the 22nd and the 24th proposed interveners, this Court is in full agreement with the Applicant that even though the two proposed interveners had valid and subsisting SPA’s, but on the day of the CCM was held they failed to attend the CCM without providing any valid reason, thus the 22nd and 24th proposed interveners had failed to exercise the rights at the CCM. They are deemed to have waived their rights and cannot now say that their legal rights are affected and they are not entitled to raise an objection in this Applicant’s proceeding. [34] The 22nd and 24th proposed interveners’ position has been aptly described in the case of Capital Dynasty Sdn Bhd (in liquidation) v Chiang Bing & Ors (2009) 8 MLJ 841. Ramly Ali J (as he then was) at page 854 of his judgment has this to say: “The respondents had waived their rights to raise the second objection against the secured creditor as they had themselves failed to attend the meeting and to exercise their voting rights having been given notice of the meeting and filing their proof of debt. In fact, a majority of them did not object when the scheme papers were served on them. As such, by their conduct, they were deemed to have waived their rights to now object to the SOA being sanctioned by the Court.” (emphasis added) 27    [35] With regards to the other five (5) proposed interveners, they were included as Scheme Creditors and had attended the CCM. They even had exercised their right as Scheme Creditors and voted against the Scheme. It is to be noted that the five of them makes up the minority interest. Having exercised their rights and had voted not in favour of the SOA and representing minority interest, the five interveners cannot now say that they have the requisite legal interest to challenge the Applicant’s proceeding for the second time. [36] In the case of Capital Dynasty, Ramly Ali, J has also stated at paragraph 27 that: “… the court finds that objection (a) is not a justifiable basis for this court to refuse to sanction the SOA and even if this court finds merit in objection (a), the interests of other Scheme Creditors who supported the Scheme and met the statutory approval (ie the majority in number and 75% in value) override the interests of the interveners who constitute the minority.” [37] This Court also agrees with the Applicant’s submission that the other basis of the intervention which have been raised by the 28    proposed interveners cannot per se constitute grounds for intervention. (ii) the proposed interveners’ application is without merits. [38] With regards to the allegation of irregularities and non- compliances, the proposed interveners raised the following issues: (a) the Explanatory Statements (ES) lacks particulars in which the proposed interveners claimed should be provided to them (b) there were “material non-compliance of procedural and statutory requirements”; (c) there was “overcounting” of votes. (d) whether the scheme can be “sanctioned” when those who caveated the land were prevented from voting at the CCM and yet, are still bound by the Scheme. [39] The Applicant submitted that the proposed interveners’ allegations are baseless, vexatious, lack of particulars and has no merits. 29    (a) the Explanatory Statements (ES) lacks particulars in which the proposed interveners claimed should be provided to them [40] Having examined the particulars in which the proposed interveners claim to be lacking in the ES, this Court entirely agrees with the Applicant that all the particulars allegedly lacking are irrelevant. It is not in dispute that the amount owing to the chargees is RM72 million in total. It is also not in dispute that the reserve price for the auction of the said lands was set at RM28 million. By this calculation, it is evident that in the event of a liquidation scenario, the proposed interveners would not be able to recover any monies at all. However, under the SOA, the Scheme Creditors’ are not affected but are better and improved. The salient features of the SOA are as follows: (a) The Company will offer to pay to each of the Scheme Creditors a sum representing ten percent (10%) of the purchase consideration paid by the Scheme Creditors pursuant to the sale and purchase agreements entered to the Company as full and final settlement for any outstanding sum owing to Purchaser pursuant to the SPA (“Settlement Sum”) subject to the SPA being valid. For the purpose of computing the Settlement Sum payable to each 30    Scheme Creditors, the Settlement Sum will be rounded down to the nearest whole sen and the Company and/or Liquidator shall at its sole discretion to disregard any fraction of a sen. (b) In the even that the SPA has been terminated for whatever reason, any amount remaining due and payable to the Purchaser shall be paid at the rate of 10% of the said sum. (c) The payment of the Settlement Sum shall be made by the Company to the Scheme Creditors within thirty (30) days from the Company receiving the sealed order of the High Court of Malaya approving the Proposed Scheme of Arrangement. [41] Under these terms, the Purchasers would see a return as opposed to no return in the event of foreclosure and after settlement of the outstanding sum of RM72,000,000.00. (b) there were “material non-compliance of procedural and statutory requirements”; [42] The proposed interveners alleged that there were material non- compliance of procedural and statutory requirements. However, 31    the proposed interveners did not specify in their affidavits what are the procedural or statutory requirements that the Applicant had failed to adhere to. Without setting out the particulars of non- compliances, this Court opines the allegations are bare allegations, not supported or substantiated by any form of documentary evidence or proof. (c) Over-counting of votes [43] The proposed interveners had questioned the majority votes obtained by the Applicant in the CCM. They alleged that the majority votes obtained by the Applicant was due to the ‘over- counting’ of creditors whereby Scheme Creditors who had purchased multiple plots of land or units were counted as an individual creditor for each lot or unit. Thus, according to the proposed interveners, a company called Konsortium Enterprise Sdn Bhd who purchased 41 lots or units was counted as 41 creditors and another company, Exotic Nature Sdn Bhd, was counted as 33 creditors as it has purchased 33 lots or units. [44] With regards to this vote counting, it was contended by the Applicant that at the CCM it has been made known to Scheme 32    Creditors that counting of the votes will be based on the number of plots owned by each Scheme Creditor. This Court is in agreement with the Applicant’s argument that counting the vote in accordance to the number of plots or units purchased would be the most fair and equitable counting/calculation of votes. Counting/calculating of votes in this manner will represent or reflect the value of each creditor. If the counting votes indicated by the proposed interveners, it would be grossly unjust to purchasers who had purchased more than a plot/unit or had purchased multiple plots/units. (d) whether the scheme can be “sanctioned” when those who caveated the land were prevented from voting at the CCM and yet, are still bound by the Scheme. [45] It was a term in the SOA that the lands has to be transferred to the “White Knight” and thus necessitates the removal of caveats Furthermore, section 178 of the Act allows the same. [46] In the present case, the Applicant had obtained the required majority of 75.96% in number and 82.13% in value at the CCM. Out of the 25 Proposed Interveners, 5 attended the CCM and 33    voted against the Scheme and 2 did not show up. Assuming for one moment that the eighteen proposed interveners were allowed to vote at the CCM and they voted against the Scheme, there would be no difference in the outcome of the approval of the SOA as after taken into account the eighteen votes of eighteen proposed interveners, the majority of 75% in number will only be reduced to 64.75% majority in number. The Applicant will still obtained more than the required statutory minimum of 50% in number and 75% in value. Hence, on this account their rights could not have been said to have been affected. [47] For above mentioned reasons, the proposed interveners’ application in Enclosure 3 is dismissed with costs of RM5000.00 to the Applicant. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 14th day of April, 2015. 34    For the Applicant - Tetuan Ong Kok Bin & Co. Encik Y.T Sohan & Encik Mark For the Respondent - Tetuan Gill & Tang Encik Naren Anand Gill

Tika 2.6.0

28NCC-252-07/2014

PEMOHON 1. MOITHU KUTTI BIN MOHAMMAD 2. JASEN A/L JAYARATNAM 3. M. LOGESWARAN A/L MARIMUTOO RESPONDEN LICVEM MALAYSIA SHIPPING & LOGISTICS SDN BHD

13/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9579f975-48ab-4478-a41c-e8a801f014d3&Inline=true

IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN COMPANIES (WINDING UP) NO.: 28NCC-252-07/2014 In the matter of Section 218(1)(f) and 218(1)(i) of the Companies Act 1965; And In the matter of Licvem Malaysia Shipping & Logistics Sdn Bhd (Company No: 1017645-D) And In the matter of the Companies (Winding Up) Order 1972 BETWEEN 1. MOITHU KUTTI BIN MOHAMMAD 2. JASEN A/L JAYARATNAM 3. M. LOGESWARAN A/L MARIMUTOO …PETITIONERS AND LICVEM MALAYSIA SHIPPING & LOGISTICS SDN BHD …RESPONDENT GROUNDS OF JUDGMENT (Enclosure 12) [1] Enclosure 12 is an application for an extension of time for a period of one month from the date of the order filed by the solicitors representing the Respondent (Licvem Malaysia Shipping & Logistics Sdn Bhd) to allow the Respondent's Director, Faheem Ahmad Khan (Faheem) who is also the Respondent's majority shareholder, to file an Affidavit in Reply to oppose the Petition (Enclosure 1) which was filed by the Petitioners to wind up the Respondent. [2] The brief facts of the case are:- (a) The Petitioners, (i) Moithu Kutti Bin Mohammad (1st Petitioner), (ii) Jasen A/L Jeyaratnam (2nd Petitioner), (iii) M Logeswaran A/L Marimuthu (3rd Petitioner) are Malaysian citizens. The Petitioners will also be periodically referred to as the Three Petitioners. (b) The Three Petitioners are the directors and shareholders of the Respondent. (c) The 2nd and 3rd Petitioners respectively, prior to the formation of the Respondent, were respectively the Shipping Manager and Senior Operations Executive in a company called Sea Hawk Global Lines Sdn Bhd (Sea Hawk) which runs the business of logistics, storage, sea freight consolidation & de-consolidation, air freight consolidation & de-consolidation, chartering, break bulk, project cargo and stevedoring. (d) In the course of conducting their work, both the 2nd and 3rd Petitioners established professional relationship with a Mauritius based company called AEL (Mauritius) Ltd. (AEL), from which a contract between Sea Hawk and AEL was created. (e) On the other hand, the 1st Petitioner was at all material times a director and a shareholder of Baiduri Dimensi Sdn Bhd (Baiduri Dimensi), wherein Baiduri Dimensi is a company that provides warehousing space and logistics requirements to Sea Hawk. (f) With the expertise and experience of the 2nd and 3rd Petitioner, they both proposed to the 1st Petitioners to form a company, which culminated in the formation of the Respondent. (g) In August 2012, the Three Petitioners and Faheem, a Danish citizen, conducted several business discussions and business ventures with AEL. Later, on 20.9.2012 Respondent was incorporated. (h) When the Respondent was formed, it was agreed that 70% of the Respondent's shares will be held by Faheem, while the balance 30% will be equally distributed between the Three Petitioners. [3] On 22.7.2014, the Three Petitioners had presented Enclosure 1 to wind up the Respondent via Sections 218(1)(f) and 218(1)(i) of the Companies Act 1965 on the grounds that there exists a mutual breakdown in trust and confidence, the directors had acted in the affairs of the Respondent contrary to the interest of the Respondent, and it was just and equitable that the Respondent be wound up. [4] Consequently, Faheem on 25.9.2014 filed a Notice of Motion to stay the Petition on the ground that the Three Petitioners had conspired to cheat the Respondent by forming a new company for the purpose of taking over the Respondent's business. On that ground, Faheem and a joint venture company named Licvem Shipping & Trading Aps (Denmark) filed a civil claim No. 22NCVC-405-08/2014 against both the Petitioners and the new company formed by the Three Petitioners, JLM Logistics (M) Sdn Bhd. [5] Returning to Enclosure 12, the application for extension of time was supported by two Affidavits, the Affidavit in Support (Enclosure 13) and an Affidavit in Reply (Enclosure 15) which were deposed and affirmed by one Eric Yap Beng Ong, a solicitor of Messrs Eric Yap & Associates (Messrs Eric Yap). Both of these affidavits will be referred to as 'Eric's Affidavits'. [6] In Eric's Affidavits to support the application for extension of time, it was stated that the delay in filing Faheem's affidavit is that Faheem, is a Danish citizen and currently residing in Denmark. Thus, for the purpose of accepting Faheem's affidavit in this Court, Faheem's affidavit is required to be sealed and attested by a Court, Judge, public notary or a consular officer of a Commonwealth country. Faheem was described to have encountered difficulty in order to obtain the seal and attestation of the consular officer and this had caused Faheem to be unable to file his affidavit in reply in respect of the Petition within the time stipulated by the Court. [7] This application for extension of time was vehemently opposed by the Three Petitioners via the filing of the Petitioners’ Affidavit in reply (Enclosure 14) affirmed by the 2nd Petitioner which was also deposed on behalf of the 1st and 3rd Petitioner. [8] The Petitioners’ solicitor raised a preliminary objection in respect of the affidavit in support affirmed by Eric and/or Messrs Eric Yap. It was submitted by the Petitioners’ solicitors that Messrs Eric Yap does not have the capacity nor the locus to represent the Respondent as no resolution was passed or approved by the Respondent to appoint Messrs Eric Yap, allowing Eric to affirm the affidavits. Further, none of the Petitioners had agreed to the appointment of Messrs Eric Yap. [9] According to the Petitioners' solicitor, the preliminary objection was raised during the case management before the Senior Assistant Registrar and had informed that they will submit on the matter before the High Court Judge. [10] In respect of the preliminary objection, this Court has went through the written submission filed by Messrs Eric Yap but unfortunately the objection raised by the Petitioners' solicitor was not answered by Messrs Eric Yap. [11] However, this Court had also went through the notes of proceedings in respect of the case management before the Senior Assistant Registrar to review the details of what transpired during the case management. During the case management fixed on 24.9.2014, which was held to schedule the hearing of Enclosure 1, the Petitioners' solicitor had indeed raised a preliminary objection against the appointment of Messrs Eric Yap as the Respondent's solicitor. There was no answer as to whether Messrs Eric Yap was appointed by the Respondent or by the majority shareholder, Faheem. During the case management, the solicitor from Messrs Eric Yap had requested for an adjournment in order to file a Notice of Motion to stay the Petition whilst awaiting instructions from their client who was in Denmark. [12] The Senior Assistant Registrar then scheduled 17.10.2014 as the next case management date. On 17.10.2014, the Petitioners' solicitor had again raised the issue of locus in respect of the Respondent's solicitor but have no issues should Messrs Eric Yap appear on behalf of a third party. Messrs Eric Yap however informed the Court that they will utilize the affidavit filed in support of their motion to stay the hearing of Enclosure 1 as the affidavit in reply to oppose the petition. The Senior Assistant Registrar then ordered for the Notice of Intention to Use Affidavit to be filed before 27.10.2014. [13] On 15.12.2014, Messrs Eric Yap informed the Court that the Notice of Motion (Enclosure 6) filed with the purpose of staying the proceedings of Enclosure 1 which was filed on 19.10.2014. However, Messrs Eric Yap was awaiting the affidavit of Faheem, and requested for more time to file Faheem's affidavit. The Senior Assistant Registrar ordered for the Respondent's affidavit to be filed before 29.12.2014. The Petitioner's solicitors again informed that they will continue to pursue their preliminary objection in respect of Respondent's solicitor's locus. The Senior Assistant Registrar fixed the case management of the Petition on 22.1.2015. During case management held on 22.1.2015, the solicitor from Messrs Eric Yap had informed the Court that the Respondent had filed Enclosure 12 on 30.12.2014 and simultaneously requests for an extension of time to allow the Respondent to file a reply against the affidavit which was filed by the Petitioners on 14.1.2015 in opposition of the Respondent's application for extension of time. The Senior Assistant Registrar further fixed the matter for case management on 25.2.2015, and later the hearing of Enclosure 12 was fixed before the High Court Judge on 13.4.2015. [14] The Court will now touch on the preliminary objection raised by the Petitioners' solicitor, which will be considered based on two factors. Firstly, although the Petitioners' solicitor had consistently raised the preliminary objection up until the hearing of Enclosure 12, but upon reading the Petitioners' submission, the Court finds that the point submitted was vague and overly simplified. In the beginning of the proceedings before the Senior Assistant Registrar, the Petitioners' solicitor objected to the appearance of Messrs Eric Yap on the grounds that no resolution was approved to appoint the firm. However, the Petitioners' submission raised another issue altogether by questioning the capacity of Faheem who was alleged to have no locus to represent the Respondent, since Faheem in the civil suit No. 22NCVC-405-08/2014 had commenced this civil suit by way of derivative action. In such a situation, Faheem cannot approbate and reprobate. Referring to the Petitioners' short submission on its preliminary objection which, and the fact the Petitioners' solicitor did not refer to any authority and/or the Respondent's Article of Association to support its submission, the Court concludes that the Petitioners' solicitor was not wholehearted in pursuing its preliminary objection. Secondly, the Petitioners' solicitor had on 17.10.2014 stated that they had no issues should Messrs Eric Yap appear on behalf of a third party. Does this mean that they agree to Messrs Eric Yap's appearance in the course of this proceedings? [15] Based on these grounds the Court is therefore of the view that there is no need to consider the preliminary objection raised, and shall determine Enclosure 12 based on its merits. [16] The Court is aware of the affidavit in reply affirmed by Faheem on 29.1.2015 and filed in Court on 9.2.2015, which serves as the basis of the application under Enclosure 12 as it was filed beyond the time period specified by the Senior Assistant Registrar. [17] Perusing the available notes of proceedings in respect of the case management held before the Senior Assistant Registrar, it is evident that the events in respect of the affidavit filed by Faheem have been going on since September. From the date when the Petition was filed, there has been only one affidavit affirmed by Faheem dated 25.9.2014 in support of the application for stay of proceeding of Enclosure 1. [18] I am in agreement of the Petitioners' solicitor that Faheem should have filed his affidavit in reply on 24.11.2014 and have failed to do so. The Senior Assistant Registrar then during case management held on 12.12.2014 allowed for a final extension of time to file Faheem's affidavit in reply before or on 29.12.2014. [19] It is trite law that the Court's power to extend and/or abridge time is one that is discretionary which must be exercised judicially. (See i. Ratnam v. Cumarasamy & Anor [1964] 3 All ER 933. ii. Ong Guan Teck & Ors v. Hijjas [1982] 1 MLJ 105. iii. Punca Klasik Sdn Bhd v. Seok Kim Leow [1996] 5 MLJ 241. iv. Gan Hay Chong v Siow Kian Yuh & Anor [1975] 1 MLJ 41. v. Cheah Teong Tat v Ho Gee Seng & Ors [1974] 1 MLJ 31.) [20] Alauddin J (as his Lordship then was) in the case of Abdul Rahim Ponniah bin Abdullah -v- Kulim Intensive Driving Centre Sdn. Bhd. [2000] 6 MLJ 584, held inter alia that : “…In exercising the discretion, the following factors will be considered (1) whether the delay caused by the defendant company unjustified or unreasonable (2) what are the reasons for the delay (3) whether the defence raised by the defendant company had any merits; and (4) will the plaintiff prejudiced in any way should the application be granted.” [21] In this case, the Court has to consider whether the application filed by Messrs Eric Yap is one that is suitable for this Court to exercise its discretionary power by giving due consideration to the explanation provided by Faheem for his delay. In other words, the legal burden to be discharged by Faheem, and to an extent, his solicitors, is to provide explanation, and to adduce satisfactory materials and facts regarding the delay in filing the affidavit in reply. [22] As such, the question to be answered is whether Faheem and his solicitors have successfully provided the Court with a satisfactory explanation in order to convince the Court to exercise its discretionary power to allow extension of time. Detailed observation of the chain of events and the reason raised by the Respondent for the delay must be analysed by the Court. REASON FOR DELAY [23] This Court is fully aware of Order 41 Rule 12 of the Rules of Court (ROC) 2012 which provides as follows:- Affidavit taken outside Malaysia admissible without proof of seal (O. 41, r. 12) 12. A document purporting to have affixed or impressed thereon or subscribed thereto the seal or signature of a Court, Judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country the seal or signature of a consular officer of a Commonwealth country in testimony of an affidavit being taken before it or him shall be admitted in evidence without proof of the seal or signature being the seal or signature of that Court, Judge, notary public or person. [24] According the Eric's affidavit, Messrs Eric Yap via their letter dated 25.11.2015 (Exhibit - "EYBO 1", Enclosure 13) had sent Faheem's affidavit in reply to obtain the seal and signature of an officer at the consular's office. Since there are no Malaysian embassy and/or consular in Denmark, Faheem was required to obtain the seal and signature from a consular officer of other Commonwealth countries. However it was alleged that Faheem could not speak nor obtain assistance from the consular offices of Singapore, Tanzania, Ghana and Pakistan. Further as it was the end of year in Denmark and most consular offices were closed for the holidays. [25] Further, Eric states that Faheem faced difficulties to obtain the seal and signature as he was required to fix an appointment with the consular offices beforehand. To support this, the Respondent exhibited the e-mail communications between Eric and Faheem (Exhibit "EYBO-2", Enclosure 13) [26] The Court agrees with the Petitioners' solicitor that the reason for delay put forward by Faheem must be put under the microscope together with the actions taken by Faheem in this suit from the moment Enclosure 1 is served onto the Respondent. [27] The solicitor from Messrs Eric Yap had asked for an adjournment to file the affidavit in reply since 17.10.2014. The filing date has since been extended to 15.12.2014. However the solicitor was still waiting for a sealed copy of the affidavit on 15.12.2014, and resulted in the Senior Assistant Registrar to giving a final date on 29.12.2014. The delay should not be calculated from 29.12.2014 as the extension of time had been given from the month of October, and later in November which was later again extended to 29.12.2014. Faheem's affidavit in reply was only filed after a 3 month period on 9.2.2015. [28] This Court is of the opinion that Faheem's reasoning that he was unable to obtain the signature and seal due to consular offices being closed at the end of the year is unreasonable. First of all, although they were given an extension of time on 17.10.2014, the Respondent's solicitors had only forwarded the affidavit in reply to Faheem via their letter dated 25.11.2014. Two things must be observed. One, the solicitor, having knowledge that time is limited; knowing that Faheem was in Denmark; and recognising the required seal and signature of the consular officer had taken the time of one month to send the affidavit in reply to Faheem. Two, the solicitor with knowledge that the affidavit in reply was to be filed before 29.12.2014 had elected to wait up until 25.11.2014 before sending the affidavit to Faheem. [29] Secondly, the Court observes that the month of November is not the end of the year just yet, knowing full well that the public holidays in European countries, including Denmark, is scheduled around Christmas at 25 December until end of the year. The Court cannot accept the reasoning that the consular offices of Commonwealth countries were closed and there was a long holiday throughout December until 27.1.2015 when Faheem finally obtained the seal and sign his affidavit at a Malaysian consular in Stockholm, Sweden. It is unreasonable to think that the consular offices of Commonwealth countries took a 2 months leave throughout the month of December 2014 until the end of January 2015. [30] Apart from this, the alleged efforts undertaken by Faheem to set appointments at the various Commonwealth consular offices are not supported by any documentary such e-mail, letters, endorsement of attendance or other documents from the said consular offices. What was exhibited by Eric was Exhibit "EYBO-2". However the document exhibited are merely e-mails of communication between Eric and Faheem. It does not show that Faheem did indeed made efforts to fix appointment or had indeed went to the consular offices to obtain the seal and signature. The emails in Exhibit "EYBO-2", in the opinion of the Court, does not prove or support the efforts made by Faheem. Additionally, the time of two months taken to obtain the seal and signature of a consulate officer shows Faheem's indefferent and not serious attitude in respect of this matter. [31] In this regard, this Court is in agreement with the Petitioners’ solicitor that Faheem’s conduct is a delaying tactic to prevent the Petition from being heard. Such a nonchalant attitude must not be condoned by this Court. [32] In the case of Gan Boon Kyee v Yap Hong Sin & Anor [1997] 2 MLJ 598, the Court of Appeal in dismissing an appeal against Judicial Commissioner’s decision refusing an application for extension of time, had held that: “The learned judicial commissioner exercised her discretion correctly. She took into account all relevant considerations and directed herself correctly on the law. She asked herself the right question and her decision accorded with the justice of the case. The judicial commissioner was entirely correct in classifying the conduct of the instant appellant as ‘leisurely paced’ because of the sluggish pace at which the appellant moved the court. It is axiomatic that the law assists the vigilant and not the indolent. Further, the court was entirely unconvinced with the arguments in support of this appeal. Therefore, the appeal was dismissed (see p 601D-F).” (emphasis added) [33] While, in Pemunya Kapal Mv Brihope & Ors v Emmanuel E Okwuosa & Ors [1997] 1 MLJ 453 at 470, the Court of Appeal in its decision held inter alia: “Order 32 r 13(2) of the RHC was specifically enacted to eradicate the rampant abuse of process by malevolent, indolent or unpaid practitioners who had devised a fall-safe method of causing unwarranted delays by filing affidavits at the last minute. The rule is mandatory. Of course, the court always has a discretionary power to extend time (see the Court of Judicature Act 1964 item 8 of the Schedule and O3 r 5 of the RHC 1980). But very powerful reasons must be advanced and the application for an extension should preferably be filed before time expired…” (emphasis added) [34] Based on the above, the explanation provided by the Respondent in respect of the delay in filing the affidavit are found to be unreasonable to warrant the Court to exercise its discretionary power to allow an extension of time for the Respondent to file Faheem's affidavit. The delay in filing the affidavit in reply is prejudicial to the Petitioners. The Court therefore refuse to allow the application filed under Enclosure 12 with costs of RM2,500.00 to be paid by Faheem to the Three Petitioners. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 13th day of April, 2015. For the Petitioners - Tetuan Kamil Hashim Raj & Lim Mr. Rishikessingam Rajakulaisingam For the Defendant - Tetuan Eric Yap Associates Mr. Eric Yap Beng Ong 18

Tika 2.6.0

28NCC-252-07/2014

PEMOHON 1. MOITHU KUTTI BIN MOHAMMAD 2. JASEN A/L JAYARATNAM 3. M. LOGESWARAN A/L MARIMUTOO RESPONDEN LICVEM MALAYSIA SHIPPING & LOGISTICS SDN BHD

13/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9579f975-48ab-4478-a41c-e8a801f014d3&Inline=true

IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN COMPANIES (WINDING UP) NO.: 28NCC-252-07/2014 In the matter of Section 218(1)(f) and 218(1)(i) of the Companies Act 1965; And In the matter of Licvem Malaysia Shipping & Logistics Sdn Bhd (Company No: 1017645-D) And In the matter of the Companies (Winding Up) Order 1972 BETWEEN 1. MOITHU KUTTI BIN MOHAMMAD 2. JASEN A/L JAYARATNAM 3. M. LOGESWARAN A/L MARIMUTOO …PETITIONERS AND LICVEM MALAYSIA SHIPPING & LOGISTICS SDN BHD …RESPONDENT GROUNDS OF JUDGMENT (Enclosure 12) [1] Enclosure 12 is an application for an extension of time for a period of one month from the date of the order filed by the solicitors representing the Respondent (Licvem Malaysia Shipping & Logistics Sdn Bhd) to allow the Respondent's Director, Faheem Ahmad Khan (Faheem) who is also the Respondent's majority shareholder, to file an Affidavit in Reply to oppose the Petition (Enclosure 1) which was filed by the Petitioners to wind up the Respondent. [2] The brief facts of the case are:- (a) The Petitioners, (i) Moithu Kutti Bin Mohammad (1st Petitioner), (ii) Jasen A/L Jeyaratnam (2nd Petitioner), (iii) M Logeswaran A/L Marimuthu (3rd Petitioner) are Malaysian citizens. The Petitioners will also be periodically referred to as the Three Petitioners. (b) The Three Petitioners are the directors and shareholders of the Respondent. (c) The 2nd and 3rd Petitioners respectively, prior to the formation of the Respondent, were respectively the Shipping Manager and Senior Operations Executive in a company called Sea Hawk Global Lines Sdn Bhd (Sea Hawk) which runs the business of logistics, storage, sea freight consolidation & de-consolidation, air freight consolidation & de-consolidation, chartering, break bulk, project cargo and stevedoring. (d) In the course of conducting their work, both the 2nd and 3rd Petitioners established professional relationship with a Mauritius based company called AEL (Mauritius) Ltd. (AEL), from which a contract between Sea Hawk and AEL was created. (e) On the other hand, the 1st Petitioner was at all material times a director and a shareholder of Baiduri Dimensi Sdn Bhd (Baiduri Dimensi), wherein Baiduri Dimensi is a company that provides warehousing space and logistics requirements to Sea Hawk. (f) With the expertise and experience of the 2nd and 3rd Petitioner, they both proposed to the 1st Petitioners to form a company, which culminated in the formation of the Respondent. (g) In August 2012, the Three Petitioners and Faheem, a Danish citizen, conducted several business discussions and business ventures with AEL. Later, on 20.9.2012 Respondent was incorporated. (h) When the Respondent was formed, it was agreed that 70% of the Respondent's shares will be held by Faheem, while the balance 30% will be equally distributed between the Three Petitioners. [3] On 22.7.2014, the Three Petitioners had presented Enclosure 1 to wind up the Respondent via Sections 218(1)(f) and 218(1)(i) of the Companies Act 1965 on the grounds that there exists a mutual breakdown in trust and confidence, the directors had acted in the affairs of the Respondent contrary to the interest of the Respondent, and it was just and equitable that the Respondent be wound up. [4] Consequently, Faheem on 25.9.2014 filed a Notice of Motion to stay the Petition on the ground that the Three Petitioners had conspired to cheat the Respondent by forming a new company for the purpose of taking over the Respondent's business. On that ground, Faheem and a joint venture company named Licvem Shipping & Trading Aps (Denmark) filed a civil claim No. 22NCVC-405-08/2014 against both the Petitioners and the new company formed by the Three Petitioners, JLM Logistics (M) Sdn Bhd. [5] Returning to Enclosure 12, the application for extension of time was supported by two Affidavits, the Affidavit in Support (Enclosure 13) and an Affidavit in Reply (Enclosure 15) which were deposed and affirmed by one Eric Yap Beng Ong, a solicitor of Messrs Eric Yap & Associates (Messrs Eric Yap). Both of these affidavits will be referred to as 'Eric's Affidavits'. [6] In Eric's Affidavits to support the application for extension of time, it was stated that the delay in filing Faheem's affidavit is that Faheem, is a Danish citizen and currently residing in Denmark. Thus, for the purpose of accepting Faheem's affidavit in this Court, Faheem's affidavit is required to be sealed and attested by a Court, Judge, public notary or a consular officer of a Commonwealth country. Faheem was described to have encountered difficulty in order to obtain the seal and attestation of the consular officer and this had caused Faheem to be unable to file his affidavit in reply in respect of the Petition within the time stipulated by the Court. [7] This application for extension of time was vehemently opposed by the Three Petitioners via the filing of the Petitioners’ Affidavit in reply (Enclosure 14) affirmed by the 2nd Petitioner which was also deposed on behalf of the 1st and 3rd Petitioner. [8] The Petitioners’ solicitor raised a preliminary objection in respect of the affidavit in support affirmed by Eric and/or Messrs Eric Yap. It was submitted by the Petitioners’ solicitors that Messrs Eric Yap does not have the capacity nor the locus to represent the Respondent as no resolution was passed or approved by the Respondent to appoint Messrs Eric Yap, allowing Eric to affirm the affidavits. Further, none of the Petitioners had agreed to the appointment of Messrs Eric Yap. [9] According to the Petitioners' solicitor, the preliminary objection was raised during the case management before the Senior Assistant Registrar and had informed that they will submit on the matter before the High Court Judge. [10] In respect of the preliminary objection, this Court has went through the written submission filed by Messrs Eric Yap but unfortunately the objection raised by the Petitioners' solicitor was not answered by Messrs Eric Yap. [11] However, this Court had also went through the notes of proceedings in respect of the case management before the Senior Assistant Registrar to review the details of what transpired during the case management. During the case management fixed on 24.9.2014, which was held to schedule the hearing of Enclosure 1, the Petitioners' solicitor had indeed raised a preliminary objection against the appointment of Messrs Eric Yap as the Respondent's solicitor. There was no answer as to whether Messrs Eric Yap was appointed by the Respondent or by the majority shareholder, Faheem. During the case management, the solicitor from Messrs Eric Yap had requested for an adjournment in order to file a Notice of Motion to stay the Petition whilst awaiting instructions from their client who was in Denmark. [12] The Senior Assistant Registrar then scheduled 17.10.2014 as the next case management date. On 17.10.2014, the Petitioners' solicitor had again raised the issue of locus in respect of the Respondent's solicitor but have no issues should Messrs Eric Yap appear on behalf of a third party. Messrs Eric Yap however informed the Court that they will utilize the affidavit filed in support of their motion to stay the hearing of Enclosure 1 as the affidavit in reply to oppose the petition. The Senior Assistant Registrar then ordered for the Notice of Intention to Use Affidavit to be filed before 27.10.2014. [13] On 15.12.2014, Messrs Eric Yap informed the Court that the Notice of Motion (Enclosure 6) filed with the purpose of staying the proceedings of Enclosure 1 which was filed on 19.10.2014. However, Messrs Eric Yap was awaiting the affidavit of Faheem, and requested for more time to file Faheem's affidavit. The Senior Assistant Registrar ordered for the Respondent's affidavit to be filed before 29.12.2014. The Petitioner's solicitors again informed that they will continue to pursue their preliminary objection in respect of Respondent's solicitor's locus. The Senior Assistant Registrar fixed the case management of the Petition on 22.1.2015. During case management held on 22.1.2015, the solicitor from Messrs Eric Yap had informed the Court that the Respondent had filed Enclosure 12 on 30.12.2014 and simultaneously requests for an extension of time to allow the Respondent to file a reply against the affidavit which was filed by the Petitioners on 14.1.2015 in opposition of the Respondent's application for extension of time. The Senior Assistant Registrar further fixed the matter for case management on 25.2.2015, and later the hearing of Enclosure 12 was fixed before the High Court Judge on 13.4.2015. [14] The Court will now touch on the preliminary objection raised by the Petitioners' solicitor, which will be considered based on two factors. Firstly, although the Petitioners' solicitor had consistently raised the preliminary objection up until the hearing of Enclosure 12, but upon reading the Petitioners' submission, the Court finds that the point submitted was vague and overly simplified. In the beginning of the proceedings before the Senior Assistant Registrar, the Petitioners' solicitor objected to the appearance of Messrs Eric Yap on the grounds that no resolution was approved to appoint the firm. However, the Petitioners' submission raised another issue altogether by questioning the capacity of Faheem who was alleged to have no locus to represent the Respondent, since Faheem in the civil suit No. 22NCVC-405-08/2014 had commenced this civil suit by way of derivative action. In such a situation, Faheem cannot approbate and reprobate. Referring to the Petitioners' short submission on its preliminary objection which, and the fact the Petitioners' solicitor did not refer to any authority and/or the Respondent's Article of Association to support its submission, the Court concludes that the Petitioners' solicitor was not wholehearted in pursuing its preliminary objection. Secondly, the Petitioners' solicitor had on 17.10.2014 stated that they had no issues should Messrs Eric Yap appear on behalf of a third party. Does this mean that they agree to Messrs Eric Yap's appearance in the course of this proceedings? [15] Based on these grounds the Court is therefore of the view that there is no need to consider the preliminary objection raised, and shall determine Enclosure 12 based on its merits. [16] The Court is aware of the affidavit in reply affirmed by Faheem on 29.1.2015 and filed in Court on 9.2.2015, which serves as the basis of the application under Enclosure 12 as it was filed beyond the time period specified by the Senior Assistant Registrar. [17] Perusing the available notes of proceedings in respect of the case management held before the Senior Assistant Registrar, it is evident that the events in respect of the affidavit filed by Faheem have been going on since September. From the date when the Petition was filed, there has been only one affidavit affirmed by Faheem dated 25.9.2014 in support of the application for stay of proceeding of Enclosure 1. [18] I am in agreement of the Petitioners' solicitor that Faheem should have filed his affidavit in reply on 24.11.2014 and have failed to do so. The Senior Assistant Registrar then during case management held on 12.12.2014 allowed for a final extension of time to file Faheem's affidavit in reply before or on 29.12.2014. [19] It is trite law that the Court's power to extend and/or abridge time is one that is discretionary which must be exercised judicially. (See i. Ratnam v. Cumarasamy & Anor [1964] 3 All ER 933. ii. Ong Guan Teck & Ors v. Hijjas [1982] 1 MLJ 105. iii. Punca Klasik Sdn Bhd v. Seok Kim Leow [1996] 5 MLJ 241. iv. Gan Hay Chong v Siow Kian Yuh & Anor [1975] 1 MLJ 41. v. Cheah Teong Tat v Ho Gee Seng & Ors [1974] 1 MLJ 31.) [20] Alauddin J (as his Lordship then was) in the case of Abdul Rahim Ponniah bin Abdullah -v- Kulim Intensive Driving Centre Sdn. Bhd. [2000] 6 MLJ 584, held inter alia that : “…In exercising the discretion, the following factors will be considered (1) whether the delay caused by the defendant company unjustified or unreasonable (2) what are the reasons for the delay (3) whether the defence raised by the defendant company had any merits; and (4) will the plaintiff prejudiced in any way should the application be granted.” [21] In this case, the Court has to consider whether the application filed by Messrs Eric Yap is one that is suitable for this Court to exercise its discretionary power by giving due consideration to the explanation provided by Faheem for his delay. In other words, the legal burden to be discharged by Faheem, and to an extent, his solicitors, is to provide explanation, and to adduce satisfactory materials and facts regarding the delay in filing the affidavit in reply. [22] As such, the question to be answered is whether Faheem and his solicitors have successfully provided the Court with a satisfactory explanation in order to convince the Court to exercise its discretionary power to allow extension of time. Detailed observation of the chain of events and the reason raised by the Respondent for the delay must be analysed by the Court. REASON FOR DELAY [23] This Court is fully aware of Order 41 Rule 12 of the Rules of Court (ROC) 2012 which provides as follows:- Affidavit taken outside Malaysia admissible without proof of seal (O. 41, r. 12) 12. A document purporting to have affixed or impressed thereon or subscribed thereto the seal or signature of a Court, Judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country the seal or signature of a consular officer of a Commonwealth country in testimony of an affidavit being taken before it or him shall be admitted in evidence without proof of the seal or signature being the seal or signature of that Court, Judge, notary public or person. [24] According the Eric's affidavit, Messrs Eric Yap via their letter dated 25.11.2015 (Exhibit - "EYBO 1", Enclosure 13) had sent Faheem's affidavit in reply to obtain the seal and signature of an officer at the consular's office. Since there are no Malaysian embassy and/or consular in Denmark, Faheem was required to obtain the seal and signature from a consular officer of other Commonwealth countries. However it was alleged that Faheem could not speak nor obtain assistance from the consular offices of Singapore, Tanzania, Ghana and Pakistan. Further as it was the end of year in Denmark and most consular offices were closed for the holidays. [25] Further, Eric states that Faheem faced difficulties to obtain the seal and signature as he was required to fix an appointment with the consular offices beforehand. To support this, the Respondent exhibited the e-mail communications between Eric and Faheem (Exhibit "EYBO-2", Enclosure 13) [26] The Court agrees with the Petitioners' solicitor that the reason for delay put forward by Faheem must be put under the microscope together with the actions taken by Faheem in this suit from the moment Enclosure 1 is served onto the Respondent. [27] The solicitor from Messrs Eric Yap had asked for an adjournment to file the affidavit in reply since 17.10.2014. The filing date has since been extended to 15.12.2014. However the solicitor was still waiting for a sealed copy of the affidavit on 15.12.2014, and resulted in the Senior Assistant Registrar to giving a final date on 29.12.2014. The delay should not be calculated from 29.12.2014 as the extension of time had been given from the month of October, and later in November which was later again extended to 29.12.2014. Faheem's affidavit in reply was only filed after a 3 month period on 9.2.2015. [28] This Court is of the opinion that Faheem's reasoning that he was unable to obtain the signature and seal due to consular offices being closed at the end of the year is unreasonable. First of all, although they were given an extension of time on 17.10.2014, the Respondent's solicitors had only forwarded the affidavit in reply to Faheem via their letter dated 25.11.2014. Two things must be observed. One, the solicitor, having knowledge that time is limited; knowing that Faheem was in Denmark; and recognising the required seal and signature of the consular officer had taken the time of one month to send the affidavit in reply to Faheem. Two, the solicitor with knowledge that the affidavit in reply was to be filed before 29.12.2014 had elected to wait up until 25.11.2014 before sending the affidavit to Faheem. [29] Secondly, the Court observes that the month of November is not the end of the year just yet, knowing full well that the public holidays in European countries, including Denmark, is scheduled around Christmas at 25 December until end of the year. The Court cannot accept the reasoning that the consular offices of Commonwealth countries were closed and there was a long holiday throughout December until 27.1.2015 when Faheem finally obtained the seal and sign his affidavit at a Malaysian consular in Stockholm, Sweden. It is unreasonable to think that the consular offices of Commonwealth countries took a 2 months leave throughout the month of December 2014 until the end of January 2015. [30] Apart from this, the alleged efforts undertaken by Faheem to set appointments at the various Commonwealth consular offices are not supported by any documentary such e-mail, letters, endorsement of attendance or other documents from the said consular offices. What was exhibited by Eric was Exhibit "EYBO-2". However the document exhibited are merely e-mails of communication between Eric and Faheem. It does not show that Faheem did indeed made efforts to fix appointment or had indeed went to the consular offices to obtain the seal and signature. The emails in Exhibit "EYBO-2", in the opinion of the Court, does not prove or support the efforts made by Faheem. Additionally, the time of two months taken to obtain the seal and signature of a consulate officer shows Faheem's indefferent and not serious attitude in respect of this matter. [31] In this regard, this Court is in agreement with the Petitioners’ solicitor that Faheem’s conduct is a delaying tactic to prevent the Petition from being heard. Such a nonchalant attitude must not be condoned by this Court. [32] In the case of Gan Boon Kyee v Yap Hong Sin & Anor [1997] 2 MLJ 598, the Court of Appeal in dismissing an appeal against Judicial Commissioner’s decision refusing an application for extension of time, had held that: “The learned judicial commissioner exercised her discretion correctly. She took into account all relevant considerations and directed herself correctly on the law. She asked herself the right question and her decision accorded with the justice of the case. The judicial commissioner was entirely correct in classifying the conduct of the instant appellant as ‘leisurely paced’ because of the sluggish pace at which the appellant moved the court. It is axiomatic that the law assists the vigilant and not the indolent. Further, the court was entirely unconvinced with the arguments in support of this appeal. Therefore, the appeal was dismissed (see p 601D-F).” (emphasis added) [33] While, in Pemunya Kapal Mv Brihope & Ors v Emmanuel E Okwuosa & Ors [1997] 1 MLJ 453 at 470, the Court of Appeal in its decision held inter alia: “Order 32 r 13(2) of the RHC was specifically enacted to eradicate the rampant abuse of process by malevolent, indolent or unpaid practitioners who had devised a fall-safe method of causing unwarranted delays by filing affidavits at the last minute. The rule is mandatory. Of course, the court always has a discretionary power to extend time (see the Court of Judicature Act 1964 item 8 of the Schedule and O3 r 5 of the RHC 1980). But very powerful reasons must be advanced and the application for an extension should preferably be filed before time expired…” (emphasis added) [34] Based on the above, the explanation provided by the Respondent in respect of the delay in filing the affidavit are found to be unreasonable to warrant the Court to exercise its discretionary power to allow an extension of time for the Respondent to file Faheem's affidavit. The delay in filing the affidavit in reply is prejudicial to the Petitioners. The Court therefore refuse to allow the application filed under Enclosure 12 with costs of RM2,500.00 to be paid by Faheem to the Three Petitioners. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 13th day of April, 2015. For the Petitioners - Tetuan Kamil Hashim Raj & Lim Mr. Rishikessingam Rajakulaisingam For the Defendant - Tetuan Eric Yap Associates Mr. Eric Yap Beng Ong 18

Tika 2.6.0

24ARB-3-09/2014

PEMOHON KILANG SAWIT BELL SDN BHD RESPONDEN KWANTAS OIL SDN BHD

13/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=bdfb65c9-c5ae-45c5-baf1-6459f15d29ec&Inline=true

Microsoft Word - 24ARB-3-09-2014 KILANG SAWIT BELL SDN BHD 1    IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO. 24ARB-3-09/2014 In the matter of an arbitration between Kilang Sawit Bell Sdn Bhd and Kwantas Oil Sdn Bhd AND In the matter of the Award No. A363 by the Arbitration Tribunal of the Palm Oil Refiners Association of Malaysia AND In the matter of the Award No. AA363 by the Appeal Board of the Palm Oil Refiners Association of Malaysia AND In the matter of Section 37(1)(b)(ii) and Section 42 of the Arbitration Act 2005 AND In the matter of Order 69 Rule 2 and Order 69 Rule 6 of the Rules of Court 2012 BETWEEN KILANG SAWIT BELL SDN BHD …..APPLICANT AND KWANTAS OIL SDN BHD …..RESPONDENT 2    Grounds of Judgment (Enclosure 1) [1] This Originating Summons (Enclosure 1) relates to an Arbitral Award and a decision of an Appeal Board arising from an appeal being filed against the same Award. Kilang Sawit Bell Sdn Bhd, the Applicant in the present case has filed Enclosure 1 to challenge the decisions of the Arbitration Tribunal (First-tier award) dated 23.12.2013 and the Palm Oil Refiners Association of Malaysia (PORAM) Appeal Board dated 25.08.2014. These two decisions hereinafter will be referred to as ‘both the Awards’. [2] Vide Enclosure 1, the Applicant sought from this Court inter alia the following orders: (a) Award Timbangtara di bawah Rujukan No. A363 bertarikh 23.12.13 (Award Timbangtara Tingkat Pertama tersebut”) oleh Tribunal Timbangtara dan sebahagian dari Award Timbangtara di bawah Rujukan No. AA363 bertarikh 25.08.14 (“Award Rayuan tersebut”) oleh Lembaga Rayuan PORAM (“Lembaga Rayuan tersebut”) The Palm Oil Refiners Association of Malaysia di bawah PORAM Rules of Arbitration and Appeal (“Award-award tersebut”) diketepikan di bawah Seksyen 37(1)(b)(ii) Akta Timbangtara 2005. 3    [3] In addition to making an application to set aside both the Awards under section 37(1)(b)(ii) of the Arbitration Act 2005 ( the Act), the Applicant also seeks this Court’s determination on several questions of law pursuant to section 42 of the Act. The questions are as follows: i) Interpretasi dan penggunaan klausa force majeure di dalam kontrak di antara Perayu dan Responden terhadap insiden kebakaran yang menyebabkan kerosakkan yang teruk ke atas kilang minyak kelapa sawit Perayu; ii) Sama ada dari tingkah laku di antara Perayu dan Responden, terma-terma kontrak tersirat boleh diimplikasikan dan terpakai di dalam kontrak mereka; iii) Sama ada Perayu telah dibebaskan daripada kesemua tanggungjawab kemudiannya di bawah kontrak oleh kerana peristiwa force majeure; iv) Sama ada kebakaran yang berlaku di kilang minyak kelapa sawit Perayu yang menyebabkan kerosakkan yang teruk itu adalah salah satu peristiwa force majeure yang membebaskan Perayu dari menunaikan tanggungjawab di bawah kontrak tersebut; dan 4    v) Sama ada, dalam keadaan di mana tiadanya persetujuan sebaliknya, faedah pada kadar 8% setahun boleh dikenakan di dalam award timbangtara manakala Arahan Amalan 1 tahun 2012 seperti yang diisukan oleh Ketua Hakim Negara menetapkan faedah ke atas amaun penghakiman pada kadar 5% setahun sahaja. [4] The background facts which give rise to this appeal are these. Both the Applicant and the Respondent (Kwantas Oil Sdn Bhd) are involved in the palm oil industry. The Applicant and the Respondent have entered into two contracts of selling and purchase of Crude Palm Oil (‘CPO’) namely: (i) KBPO/1212-0065 dated 26.11.2012 and (ii) KBPO/1212-0066 dated 27.11.2012. In these two contracts, the Respondent has contracted to buy from the Applicant, 3000 metric tonnes of CPO at a price stated as “MPOB Peninsular Malaysia of CPO average price for December 2012-RM80.00 PMT. The supplies of CPO under the two Contracts are due for full delivery until December 2012. [5] Up until 24.12.2012, the Appellant had only delivered 632.08MT of CPO to the Respondent out of the 3000MT contracted in the two contracts. The Applicant claimed that the full delivery of the CPO to the Respondent could not be met due to numerous frustrations or 5    constraints caused by the Respondent themselves. The frustrations/ constraints caused by the Respondent according to the Applicant are among others; i. delivery restriction; ii. exorbitant imposition of penalties and unwillingness to negotiate; iii. high amount of CPO drawn for samples; and iv. refusal to pay for the said CPO samples. [6] The Applicant also claimed that with all these constraints that it was facing, the Applicant knew that it would not be able to fulfil its’ contractual obligation under the two contracts and therefore the Applicant had offered or suggested to the Respondent a Wash Out. The Respondent did not agree to the Wash Out and instead extended the delivery period from December 2012 to January 2013. However, on 2.1.2013, a fire broke out at the Applicant’s mill resulting in a shutdown of the mill. [7] On 4.1.2013, the Respondent was informed of the fire by the Applicant. Later, vide a letter dated 10.01.2013, the Applicant had requested for a cancellation of the contract (Wash Out) to which 6    the Respondent disagreed. The Respondent, on the other hand gave the Applicant an extended time until February 2013 to complete the delivery of the CPO. [8] The Applicant subsequently made two more deliveries namely, on the 25th and 28th January 2013. After these two deliveries, the Applicant did not make any more delivery of the CPO to the Respondent. [9] In February 2013, the Respondent sent two reminders (dated 20.2.2013 and 26.02.13) to the Applicant to expedite the delivery of the remaining CPO. The Applicant, however did not respond to both the requests. [10] Instead of delivering the remaining CPO due under the two contracts to the Respondent, the Applicant had issued a letter dated 8.03.13 terminating the contracts. The terminations of the two contracts were made pursuant to Clause 12 PORAM/MPOA Domestic Sales Contract (“the Contract”) citing force majeure as the reason for termination. In the same letter, the Applicant also stated that in view of both these contracts had been terminated, the 7    remaining balance of 1,599,90 MT of CPO under the contracts are deemed to be null and void. [11] By a letter dated 12.3.2013, the Respondent responded to the Applicant’s letter rejecting such termination. The Respondent, on the contrary had put the Applicant on notice that it is in default on the non-delivery of the remaining CPO and thus demanded payment of the sum of RM466,691.56 being the difference between the contract price and market price at the date of the default within fourteen(14) days from the date of the letter. The Applicant was also put on notice that in the event that it failed to pay the said sum, the Respondent will then opt for legal recourse/arbitration. [12] Subsequently, the Respondent had referred the dispute to the Palm Oil Refiners Association of Malaysia (PORAM) for arbitration. [13] On 23.12.2013, the Arbitration Tribunal (Tribunal) allowed the Respondent’s claim (First- tier award). Dissatisfied with the award, the Applicant then appealed to the Appeal Board. The Applicant’s appeal was rejected by the PORAM’ Appeal Board on 20.01.2014. 8    [14] The Applicant’s case before the Arbitral Tribunal is plainly this. The two contracts were validly terminated by the Applicant by virtue of Clause 12 to Clause 12 PORAM/MPOA Domestic Sales Contract namely, when fire broke out at the Applicant’s mill, it would not be possible for the Applicant to deliver the remaining CPO to the Respondent. In view of this, the contracts are validly terminated under by invoking the Force Majeure Clause under Clause 12. [15] The Arbitral Tribunal however, is of the opinion that Clause 12 which was relied onto by the Applicant has no application in the dispute between the Applicant and the Respondent on the following grounds: (i) That the Applicant did not sell and the Respondent did not buy on “Seller’s Own Production”. If it was so, then there would be justification for the Applicant to invoke Clause 12 PORAM/MPOA Domestic Sales Contract; “ (ii) That quantity of the Applicant ought to have bought in the balance CPO of similar specifications to meet their contractual obligations. 9    [16] The Appeal Board agreed with decision and concurred with the First-Tier Award on the non-application of Clause 12. [17] The Applicant had raised three grounds in support of its application. The three grounds are as follows: i) Bahawa keputusan Lembaga Rayuan tersebut mengenai isu Force Majeure di bawah Klausa 12 PORAM/MPOA Domestic Sales Contract di “Point 1, Findings of the Appeal Board” adalah bertentangan dengan undang-undang substantif Malaysia dan berlawanan dengan polisi awam Malaysia; ii) Bahawa kegagalan Lembaga Rayuan tersebut dalam mengiktiraf, dalam konteks undang-undang substantive Malaysia, terma-terma dan syarat-syarat tersirat dalam kontrak dan juga amalan komersil di antara Perayu dan Responden di bahagian “Point 1, Findings of the Appeal Board” di dalam Award Rayuan tersebut adalah bertentangan dengan undang-undang substantif Malaysia dan berlawanan dengan polisi awam Malaysia; iii) Bahawa Lembaga Rayuan tersebut dengan salahnya meratifikasikan Award Timbangtara Tingkat Pertama tersebut yang dengan salahnya mengenakan faedah ke atas Perayu terhadap amaun yang tidak ditentukan pada kadar 8% setahun dan yang 10    dinyatakan sebagai dari tarikh 08.03.14 sehingga “payable by the Respondents (Appellants)” di perenggan (d) Award Timbangtara Tingkat Pertama tersebut yang mana adalah bertentangan dengan undang-undang substantive Malaysia dan berlawanan dengan polisi awam Malaysia; [18] The Applicant contends that at the arbitration proceedings both before the Tribunal and the Appeal Board, the Respondent had disputed the termination only on the sole ground that the Applicant is not willing to fulfil its obligation because the Applicant is selling the CPO to another buyer as there was an increase in the price of the CPO (sole ground). However, according to the Applicant, the Tribunal and the Appeal Board have held that Clause 12 of frustration of the contracts on the grounds of force majeure due to fire of the Applicant’s mill has no application before them because the two contracts do not provide that the CPO to be delivered to the Respondent must exclusively be produced by the Applicant and thus, the Applicant must fulfil its obligation under the two contracts to deliver the remaining CPO by obtaining the CPO from other millers or from the open market. The Applicant also contends that in arriving to their decisions, the arbitral bodies had not consider or failed to consider the implied terms of the two contracts and the conducts of the Respondent (objection on the sole ground and 11    extending time to deliver the remaining CPO). On this basis, the Applicant had contended that when the arbitral bodies did not take into consideration of the substantive law relating to implied terms and estoppel by conduct in arriving to their decisions, both of these awards are therefore in conflict with the public policy of Malaysia. [19] Before this Court determines whether the decisions of the arbitral bodies in the present case are in contrary with the public policy of Malaysia or whether there are questions of law to be determined in the present case, this Court would first briefly allude to the general principles with regards to the role of the Court when faced with an application challenging or setting aside an arbitral award. [20] There is a myriad of authorities on this. Suffice for this Court to mention a few. In the case of Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113 Gopal Sri Ram JCA (as he then was) in delivering the judgment of the Court of Appeal had set out the principles governing an application to set aside or remit an arbitral award. At pages 122,123 and 124, his lordship has stated this: 12    “Now before I state my views on the approach adopted by the learned judge to the application before him I consider it essential to advert to the principles that govern an application of the kind that the learned judge dealt with in this case. For that purpose, I need go no further than three authorities. First, judgment of Raja Azlan Shah J (as His Highness then was) in Sharikat Pemborong Pertanian & Perumahan v Federal Land Development Authority [1971] 2 MLJ 210 which is an authority that has been repeatedly quoted from and applied. Here are the relevant passages at pp 210–211: ‘It is essential to keep the distinction between a case where a dispute is referred to an arbitrator in the decision of which a question of law becomes material from the case in which a specific question of law has been referred to him. The wealth of authorities make a clear distinction between these two classes of cases and they decide that in the former case the court can interfere if and when any error appears on the face of the award but in the latter case no such interference is possible upon the ground that the decision upon the question of law is an erroneous one. Instances of the former are afforded by Absalom Ltd v Great Western (London) Garden Village Society Ltd [1933] AC 592; British Westinghouse Electric & Manufacturing Co Ltd v Underground Railways Co of London Ltd [1912] AC 673; 13    Hodgkinson v Fernie 3 CB (NS) 189; 140 ER 712, and Attorney-General for Manitoba v Kelly and others [1922] 1 AC 268, 281 PC; Government of Kelantan v Duff Development Co Ltd [1923] AC 395, 411 and In re King and Duveen [1913] 2 KB 32 are instances of the latter. In the present case I have on consideration come to the conclusion that no question of law was referred. What was submitted to the arbitrator was a question of law which incidentally, and indeed necessarily, arose in applying ascertained facts. The reference involved both composite questions of law and fact. The court can therefore review the award if and when there is error apparent on the face of the award. ... Let me state here that this is not a re-hearing. My sole purpose is to determine whether there is error of law on the face of the award. With regard to the first point, I am not satisfied that the arbitrator had drawn wrong inferences of fact from the evidence. Even if he did, that by itself is not sufficient as a ground to warrant setting aside the award. It would be contrary to all the established legal principles relating to arbitration if an award based upon the evidence presented were liable to be reopened on the suggestion that some of the evidence had been ‘misapprehended and 14    misunderstood (see In re Great Western Railway Co And HM’s PostmasterGeneral [1903] 19 TLR 636).’ … The second authority is Union of India v Rallia Ram AIR 1963 SC 1685 where Shah J, when delivering the judgment of the Indian Supreme Court said: ‘An award being a decision of an arbitrator whether a lawyer or a layman chosen by the parties, and entrusted with power to decide a dispute submitted to him is ordinarily not liable to be challenged on the ground that it is erroneous. In order to make arbitration effective and the awards enforceable, machinery is devised for lending the assistance of the ordinary courts. The court is also entrusted with power to modify or correct the award on the ground of imperfect form or clerical errors, or decision on questions not referred, which are severable from those referred. The court has also power to remit the award when it has left some matters, referred undetermined, or when the award is indefinite, or where the objection to the legality of the award is apparent on the face of the award. The court may also set aside an award on the ground of corruption or misconduct of the arbitrator, or that a party has been guilty of fraudulent concealment or wilful deception. But the Court cannot interfere with the award of otherwise proper on the ground 15    that the decision appears to it to be erroneous. The award of the arbitrator is ordinarily final and conclusive, unless a contrary intention is disclosed by the agreement. The award is the decision of a domestic tribunal chosen by the parties, and the civil courts which are entrusted with the power to facilitate arbitration and to effectuate the awards, cannot exercise appellate powers over the decision. Wrong or right the decision is binding if it be reached fairly after giving adequate opportunity to the parties to place their grievance in the manner provided by the arbitration agreement.’ Third, and last, in Intelek Timur Sdn Bhd v Future Heritage Sdn Bhd [2004] 1 MLJ 401, Siti Norma FCJ said at p 407: ‘The law regarding the effect of an arbitrator’s award is well settled in that the award is final, binding and conclusive and can only be challenged in exceptional circumstances. As such, if an arbitrator had erred by drawing wrong inferences of fact from the evidence before him, be it oral or documentary, that in itself is not sufficient to warrant the setting aside of his award.’ It is the unanimous view of all the authorities that the High Court in exercising its statutory jurisdiction under the Arbitration Act 1952 does not enjoy appellate jurisdiction. See, for example, Puri 16    Construction Pvt Ltd v Union of India AIR 1989 SC 777, where it was held that: ‘ ... a court while examining the objections taken to an award filed by an arbitrator is not required to examine the correctness of the claim on merits. The court cannot sit in appeal over the views of the arbitrator by re-examining and reassessing the materials.’ ” [21] In another decision of the Court of Appeal in the case of Future Heritage Sdn Bhd v Intelek Timur Sdn Bhd [2003] 1 MLJ 49, Richard Malanjum JCA (as his lordship then was) has summarised the general principles as to Court’s intervention on arbitral awards as follows: “Before dealing with the grounds in this appeal, perhaps it is opportune here to have a quick overview of some of the legal principles relating to power of the courts to set aside an award of an arbitrator. And to begin with, I think the statement of law and the discourse therein in the case of Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 MLJ 481 require no further clarification. This is what Gopal Sri Ram JCA said at pp 487-488: 17    ‘The general rule at common law is that, absent a contrary intention in the agreement to arbitrate entered into between the parties to a controversy, the award of an arbitrator is final, binding and conclusive. It may not be challenged merely on the ground that it is erroneous. As Shah J, said in Union of India v Rallia Ram AIR 1963 SC 1685 at p 1691: ... So jealously did the common law guard against curial interference with private arbitrations that it was most reluctant to create exceptions to the general rule. The policy of the common law is reflected in the judgment of Williams J, in Hodgkinson v Fernie (1857) 3 CBNS 189 where he said: ‘The law has for many years been settled, and remains so at this day that, where a cause or matters in difference referred to an arbitrator a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact … The only exceptions to that rule are cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted is now, I think firmly established, viz where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award. Though 18    the propriety of this latter may very well be doubted I think it may be considered as established.’ Thus, the common law as a very limited exception grudgingly allowed a court to intervene and set aside an award on the face of which it appeared an error of law. That is an important exception that prevails until today. In Champsey Bhara v The Jivraj Balloo Spinning & Weaving Co. Ltd 1923 AIR PC 66, Lord Dunedin, when delivering the advice of the Board, explained the breath of this limited common law jurisdiction over arbitration awards. He said (at p 69) ‘An error of law on the face of the award means, in their Lordships’ view, that you can find in the award or document actually incorporated thereto, as for instance, a note appended by he arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties’ rights depend to see if that contention is sound.’ 19    Quite apart from the common law, the jurisdiction of the ordinary courts in the environment of private arbitration stems also from statute. ... In my judgment, the jurisdiction to set aside or to remit an arbitrator’s award whether at common law or under statute is one that should be exercised with great care and with a proper sense of responsibility. One may do well to keep in mind the words of Sharma J in Puri Construction Pvt Ltd v Union of India 1989 AIR SC 777 at p 780: ‘When a court is called upon to decide the objections raised by a party against an arbitration award, the jurisdiction of the court is limited, as expressly indicated in the Arbitration Act and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits.’ (See also Cairn Energy India Pty Ltd & Anor v The Government of India [2009] 6 MLJ 795). [22] Coming back to the present case, it is to be noted that the first ground on which the Applicant sought to have both the awards set aside is that both of the awards granted by the Tribunal and the 20    Appeal Board are in conflict with the public policy of Malaysia under Section 37(1)(b)(ii) of the Act. [23] Section 37(1)(b)(ii) of the Act reads: (1) An award may be set aside by the High Court only if- (a) ....... (b) the High Court finds that – (i) ……. (ii) the award is in conflict with the public policy of Malaysia. [24] The scope of section 37 of the Act has been illustrated by the Court of Appeal in the case of Ajwa For Food Industries Co (MIGOP), Eqypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395, where it was held inter alia: “Section 37(1) of the Arbitration Act 2005 provides for the various grounds on which an arbitral award may be set aside. The onus is on the party making the application to provide proof. The court’s discretion in setting aside the arbitral award is now limited to the narrowly defined circumstances in line with modern international practice. The effect of the present ss. 8, 9, 37 and 42 of the Arbitration Act is that the court should be slow in interfering with an arbitration award ... (at p. 405)” 21    [25] In the case of The Government of India v Cairn Energy India [2014] 9 MLJ 149, the Court of Appeal held inter-alia: “Although there appears to be no requirement of ‘proof in subpara 37(1)(b)(ii) and whilst the question of what amounts to ‘public policy’ may be a difficult one, i would also venture to say that the court nevertheless requires sufficient basis for such allegation or ground in order that it may ‘find’ that ‘the award is in conflict with the public policy of Malaysia.’ This requirement extends to not only identifying the particular public policy of Malaysia which said to be conflicted but also to providing basis of the alleged conflict; that is how it is conflicted or breached; and how the breach has prejudiced the rights of the plaintiff.” (emphasis added) [26] In the case of Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 1 CLJ 617 at paragraph 39, Mohamad Ariff Yusof, JCA in delivering the judgment of the Court of Appeal had stated: “In as much as the courts must embrace the principles of finality of awards, party autonomy and minimal court intervention in the context of the UNCITRAL Model Law legal regime, the courts cannot allow an award to stand in the face of a clear excess of jurisdiction and a breach of the 22    equally important principle that arbitration proceeding is consensual and the mandate of the chosen arbitrator has to be limited to the terms of the submissions and the agreed issues.” [27] The Applicant’s application was strongly opposed and objected by the Respondent. The Respondent submits a three-folds objection. Firstly, the Applicant had failed to explain how both the awards are against the public policy of Malaysia; secondly the threshold of section 42 of the Act is not fulfilled by the Applicant as the Applicant had not posed any question of law for determination by this Court; and thirdly the Tribunal and the Appeal Board have been statutorily authorised to award the 8% interest. Has the Applicant explain how both the awards are against the public policy of Malaysia? [28] It is the contention of the Respondent that the Applicant had failed to explain how both the awards are against the public policy of Malaysia. The Respondent submitted that in ascertaining whether the arbitral award is in conflict with Malaysian public policy, section 37(2) of the Act provides a useful guidance. Section 37(2) of the Act has given illustrations of 2 situations in which an arbitral award 23    can be in conflict with the public policy of Malaysia. The situations are namely; (i) the award was influenced by fraud or corruption; or (ii) there was a breach of natural justice rules during the arbitration or in connection with making the award. [29] It is the submission of the Respondent that none of the situations illustrated in Section 37(2) of the Act are applicable in the present case. [30] The Applicant on the other hand submitted that in the two contracts entered between the parties, a contractual term can be implied that the CPO delivered by the Applicant must necessary be from the Applicant’s own production. Here, the Applicant had relied on Clause 5 of the Contract. The Applicant contends that the reading of Clause 5 does not envisage that a miller must buy from the open market in case of delay since delivery can be extended subject to the payment of penalties. [31] Against this contention, it is pertinent for this Court to reproduce the entire provision of Clause 5 of the Contract. Clause 5 reads: “Extension of Collection/Delivery 24    Collection/delivery must be completed within the contract period, failing which it shall constitute a default. However, subject to mutual agreement in writing at least 5 working days prior to expiry of contract period, the time for collection/delivery could be extended to a period (hereinafter referred to as the extended period) not exceeding 10 days. The following charges for the quantity carried forward each day are to be borne by the party requesting the extended period:- First 5 days without any charges 6th. day at RM1.00 PMT 7th. day at RM2.00 PMT 8th. day at RM3.00 PMT 9th. day at RM4.00 PMT 10th. day at RM5.00 PMT Non-collection/delivery of the oil by the end of the extended period shall constitute a default. However, subject to mutual agreement in writing, the time for collection/delivery could be delayed for a further period and in which event, completion of the contract may be delayed to the extent of the period of delay requested. In this instance, non-collection/delivery in the contract month shall not constitute default.” [32] In summary, the Applicant is contending that the term of the contracts do not provide that a miller is required to get the CPO from the other millers to fulfil the contracts. However by reading Clause 5 and the Respondent’s conduct in extending the time of 25    delivery to enable the Applicant to fulfil its obligation under the contracts and its sole ground of objection with regards to the termination, the implied terms must be that the CPO must come from the Applicant’s own production only and not from some other miller or from the open market. [33] It is this Court’s considered view that the Applicant’s contention is clearly without basis and devoid of merits. Firstly, Clause 5 merely stipulates the terms for the time for delivery, extension of time in case of delays and charges imposed when time for delivery is extended. Clause 5 could not be possibly be read with the conducts of the Respondent to imply a contractual term in the manner contended by the Applicant. Basically, the arbitral tribunal and the Appeal Board in their decisions merely found that the force majeure clause under Clause 12 has no application in the dispute in the absence of specific terms in the contracts that the CPO must exclusively be produced by the Applicant. Hence, to fulfil its obligation under the contracts the Applicant must obtain CPO of similar specifications from other millers or from the open market. There is no such issue of substantive law in relation to the implied terms or estoppel by conducts that the tribunal or the Appeal Board had not consider. 26    [34] To read and to colour a different reading of Clause 5 is thoroughly a misconception. It would be infinitely unjust and too outreaching to read a clause (Clause 5 in the present case), simply stating the allowance of extension and penalties for extension, to mean that a buyer should only receive CPO of the Applicant’s own production. There is an utter absence of nexus here. The allowance of extension has no relations at all to the supplier or the identity of a supplier in the contracts. The allowance of an extension merely states that if there should be a delay, the Respondent can give an extension while being paid penalties. It does not at all dictate, in fact could not possibly dictate that the supply must come from the Applicant’s own production. The Respondent is empowered to give and to refuse extension as it pleases. Where, how, and from whom the CPO supply should be obtained for delivery is irrelevant to Clause 5. It is simply that, when an extension is given, in absence of any specific term for Seller’s own Production, the Applicant must perform its obligation to deliver the remaining CPO notwithstanding the CPO being its own production or from other millers or from the open market. Regardless of the CPO’s origins, the Applicant must ensure to supply the CPO to the Respondent. Failing to do so is a clear indication of a breach of the Applicant’s own fault. There is 27    absolutely nothing to be derived from the Respondent’s conduct in allowing the extension to draw any grounds for estoppel. [35] Here, the issues before the Arbitral bodies were primarily on the issue of force majeure which obviously is not against substantive Malaysian law. Hence, this Court opines that there is no question of both the awards being against public policy of Malaysia. [36] This Court is therefore in full agreement with the Respondent that the Applicant had failed to explain the manner in which the awards are in conflict with public policy of Malaysia. The Applicant must therefore fail under section 37(1)(b)(ii) of the Act. Reference on question of law under section 42 of the Act [37] It is submitted on behalf of the Respondent that in order for the Applicant to invoke section 42 of the Act, there must be a proper and valid question of law arising out of an award for the matter to be referred to the High Court. The existence of valid question of law is a fundamental requirement of the provision. 28    [38] It is further submitted by the Respondent that the Applicant’s case here does not pose any question of law but merely alludes to an issue with regards to the applicability of Clause 12 of the Contract, namely the force majeure clause. The Respondent further contends that essentially the Applicant is not satisfied with the Tribunal’s and Appeals Board’s decision on the non-application of Clause 12 of the Contract which relates to force majeure. [39] Thus, the Respondent contends that the Applicant fails in its invocation of section of 42 of the Act on the following reasons: i. failure to pose a question of law; and ii. the Applicant is challenging the Tribunal and Appeals Board’s finding of facts in reaching their decision on the applicability of Clause 12 of the Contract. Section 42 of the Act cannot be used to challenge factual findings of an arbitration tribunal. [40] On this contention, the Respondent relied on these following cases: (i) SDA Architects v Metro Millenium Sdn Bhd [2014] 3 CLJ 632. In this case, Hishamudin Mohd Yunus delivering the judgment of the Court of Appeal have stated: 29    “But how does one determine whether a particular question raised is a proper and valid question of law or not? One does so by considering the propriety of the question that is proposed is the context of the facts of the case as a whole, including the issue that have to be dealt with by the arbitrator.” (ii) Majlis Amanah Rakyat v Kausar Corporation Sdn Bhd [2011] 3 AMR 315, Ariff Yusoff J (as he then was) at page 325, paragraphs 19 and 20 had stated: [19] Section 42 of the Arbitration Act 2005 is headed "Reference on questions of law". Under subsection (1) of the section, any party "may refer" to the High Court any "question of law arising out of an award." This reference must be filed within 42 days of the publication and receipt of the award, and must identify the question of law to be determined and additionally identify the grounds on which the reference is sought. (Subsection (2)). Under subsection (4), the High Court may, on the determination of the reference, order the following: (a) confirm the award; (b) vary the award: (c) remit the award in whole or in part, together with the High Court's determination on the 30    question of law to the Arbitral Tribunal for reconsideration; or (d) set aside the award, in whole or in part. [20] Unlike similar provisions in other Commonwealth jurisdictions, Malaysia law refers to a “reference’’  as opposed to an "appeal". However, like the other jurisdictions, the question of law is required to be a question which "arises out of an award." (iii) Intelek Timur Sdn Bhd v. Future Heritage Sdn Bhd [2004] 1 CLJ 743. The Federal Court inter alia held the following: “An arbitration award is final, binding and conclusive; and can only be challenge in exceptional circumstances. As such if an Arbitrator had erred by drawing wrong inferences of fact from the evidence before him be it oral or documentary that in itself is not sufficient for the setting aside of his award.” [41] The Applicant argued that it has posed valid questions of law. The questions is listed out in the Originating Summons are as follows: (a) Interpretation and the usage of force majeure clause in the contract between Applicant and the Respondent in respect of the fire incident; 31    (b) Whether there is an implied terms based on the parties’ conduct; (c) Whether Applicant’s liability is discharged due to the force majeure clause; (d) Whether the fire which destroyed the Applicant’s mill is considered as an incident under force majeure which exempted the Applicant from any liability (e) Whether the Arbitrators’ award on interest of 8% is justiciable when there is no specific provision for the same while Practice Direction 1 of 2012 by Chief Judge of Malaysia has fixed the interest rate at 5% per annum [42] Closer examination on the questions (a) to (d), one could not help to come to an overwhelming conclusion that these questions are questions of fact related to application of Clause 12. At this juncture, it may useful for this Court to reproduce Clause 12. Clause 12 reads: “12. Force Majeure Should delivery/collection by Sellers be prevented by reason of fires, strikes, lockouts, riots, civil commotion, floods and/or any cause comprehended in the term force majeure, the contract period shall be extended for a period equal to the duration of the disabling 32    circumstances but not exceeding a period of 60 calendar days. If the force majeure event ends with 21 days preceding the end of the extended period, then a further 21 days shall be allowed after the termination of the force majeure event. Should the fulfilment of the contract not be possible within the extended period, the contract or any unfulfilled part thereof shall be deemed to be null and void at the end of such extended period.” [43] Basically, when the Arbitral bodies rejected the application of Clause 12 in the dispute between the Applicant and the Respondent, the question whether this force majeure clause applicable or otherwise is entirely dependent on the factual matrix of the case and it is therefore involving question of facts. Ultimately, the decisions made are findings of facts. [44] Further, Clause 12 does not operate automatically. Just because the Applicant’s mill caught fire, it does not mean that the Applicant is automatically relieved from its obligation or liability under the contracts under this force majeure clause. The Applicant must demonstrate that due to the fire they were unable to deliver the CPO to the Respondent or to any other dealer or customer. However to this Court’s amazement, from Exhibit “WKL-2” at page 47 in the Applicant’s own Affidavit In Support, the Applicant 33    miraculously managed to engage in a sales of 500 metric tons CPO to another Dealer (Tegap Bumijaya Sdn Bhd) on 9th March 2013 for March 2013 delivery. It is to be noted that on 8th March 2013, which is the date of the termination letter, the CPO price was at RM2352.50 compared to the contractual price of RM2060.00 which was about RM292.50 per metric tonnes higher than the contract price. [45] How could the Applicant submit that it was unable to deliver the CPO to the Respondent when the Applicant was able to supply to another dealer 500 tonnes of CPO when it claimed that its mill is not in operation and the remaining CPO could not be delivered to the Respondent. Now, it is the Applicant’s duty to proof that they are unable to fulfil the contracts even with the extension of time granted by the Respondent. In this case, the Applicant has failed to do so. Inevitably, the inference here is that the Applicant had terminated the contracts not in good faith of not being able to supply. Instead, the Applicant is using the fire incident as an excuse to terminate the Contracts while having a better deal with another dealer. 34    [46] The law is trite and settled that the High Court will not disturb the finding of fact by Arbitrators. Sundra Rajoo & WSW Davidson, the authors of “The Arbitration Act 2005, UNCITRAL Model Law as applied in Malaysia “ at page 198 had said this: “It has long been accepted that in arbitration, the tribunal’s findings of fact are conclusive. See the following passage from Georgas SA v Trammo Gas Ltd (the ‘Baleares’) [1993] 1 Lloyd’s Rep 215 at 228, an English Court of Appeal decision quoted in Russell on Arbitration (1997), paragraph 8-057: The arbitrators are the masters of facts. On an appeal the court must decide any questions of law arising from the award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the court considers these findings of facts to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be or what the scale of the financial correspondences of the mistake of fact might be. We take this opportunity to state our view that this basic principle still holds good for the future and that there is nothing in the terms of the Act that suggests the court has any wider jurisdiction to deal with issues of fact than has existed in the past.” 35    [47] With regards to invocation of section 42 of the Act in relation to reference on question of law arising from arbitral award, in the case of Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 1 CLJ 617, the Court of Appeal has held inter alia: (4) With the insertion of s. 42(1A) of the Act, the court is cautioned against setting aside or varying an award unless the error of law substantially affects the rights of parties. It would thus appear this particular jurisdiction is not to be lightly exercised by the courts. (para 51) (5) Based on case authorities, a number of propositions can be stated as guidelines: (i) the question of law must be identified with sufficient precision; (ii) the grounds in support must also be stated on the same basis; (iii) the question of law must arise from the award, not the arbitration proceeding generally; (iv) the party referring the question of law must satisfy the court that a determination of the question of law will substantially affect his rights; (v) the question of law must be a legitimate question of law, and not a question of fact 'dressed up' as a question of law; (vi) the court must dismiss the reference if a determination of the question of law will not have a substantial effect on the rights of parties; (vii) this jurisdiction under s. 42 is not to be lightly exercised, and should be exercised only in clear and 36    exceptional cases; (viii) nevertheless, the court should intervene if the award is manifestly unlawful and unconscionable; (ix) the arbitral tribunal remains the sole determiners of questions of fact and evidence; and (x) while the findings of facts and the application of legal principles by the arbitral tribunal may be wrong (in instances of findings of mixed fact and law), the court should not intervene unless the decision is perverse. (para 57) (6) The determination of what constitutes ‘a question of law’ under s. 42 will involve a mixed consideration of relevant statutory rules, case laws and legal principles, and an identification of the relevant facts on which to apply the ‘law’. (para 58) [48] In ascertaining what constitutes a question of law under section 42 of the Act, Mohamad Ariff Yusof JCA, in delivering the judgment of the Court of Appeal in Perwira Bintang had referred to the analysis done by Nallini J (as she then was) in the case Exceljade Sdn Bhd v Baure [2014] 1 AMR 253. Nallini J’s observations of Mustil J in Finelvet AG v. Vinava Shipping Co Ltd, The Chrysalis [1983] 1 Lloyd’s Rep 503; [1983] 1 WLR 1469 is reproduced below: 37    “ Mustil J then goes on to consider the proper test or approach to be adopted by a court determining the substantive appeal which turns on a question of law arising out of the arbitration: ... Starting therefore with the proposition that the court is concerned to decide on the hearing of the appeal whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator's process of reasoning into three stages. (1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute. (2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached. (3) In light of the facts and the law so ascertained, the arbitrator reaches his decision. In some case, stage (3) will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In some instances, however, stage (3) involves an element of judgment on the part of the arbitrator. There is no uniquely “right” answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong. 38    Stage (2) of the process is the proper subject matter of an appeal under the Act of 1979 ... (emphasis added)” [49] With reference to Nallini J’s analysis, the Court of Appeal in paragraph 60 of Perwira Bintang’s case said this: “[60] In practical terms, we are persuaded that we should be looking at stage (2) of the process of reasoning as the proper focus of the inquiry under s. 42, which will mean ascertaining not so much a clear position of the "law" without regard to underlying facts, but, as analysed, the arbitrator will be ascertaining the “law” as a process comprising “not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached.” Typically, this process will involve a mixed consideration of relevant statutory rules, case laws and legal principles, and an identification of the relevant facts on which to apply the “law”.” [50] Based on the aforementioned reasons, it is this Court’s judgment that the Arbitrators had carefully evaluated the evidence and 39    applied the correct principles of law in their findings, and thus there is no question of law arising out of both the Awards that requires determination of this Court under section 42 of the Act which warrants the setting aside of the Tribunal’s Award and the Appeal Board’s decision. The question in respect of interest awarded [51] The next complaint raised by the Applicant is on the issue of interest awarded by the Arbitrators. The Applicant submitted that the Arbitrators had awarded interest at the rate of 8% per annum from the date of default (08.03.13) until the date of Award. The Applicant submitted that section 33(6) of the Act states that (a) the arbitral tribunal may award interest on any sum of money to be paid by the award from the date of the Award to the date of realization; and (b) determine the rate of interest. Further, it was submitted by the Applicant that the Part VI of Section 4 of the PORAM Rules of Arbitration and Appeal has stated that an Award shall become final and conclusive and shall be enforceable in the same manner as a judgment or order of the same effect. Here, the Arbitrators had awarded interest of 8% per annum from the date of default (08.03.13) until the date of Award. The arbitrators had also awarded an additional interest of 8% per annum from the date of 40    award until full payment of the award to the Respondent. Hence, it is the submission of the Applicant that the interest should be 5% per annum and not 8% per annum as per Practice Direction 1 of 2012 which took effect from 01.08.12 as the Chief Justice Malaysia had directed that interest on judgment debts are to be fixed at 5% per annum. [52] On this issue, this Court is in full agreement with the Respondent’s contention that the Appeal Board and Tribunal are statutorily authorized to grant interests on the arbitration award pursuant to section 33(6) of the Act and section 11 of the Civil Law Act 1956. It is patently clearly that the arbitrators are empowered under the Act to determine the rate of interest. Hence, when the Arbitrators awarded the Respondent interests at the rate of 8% per annum on the Award, the Arbitrators are well within the parameter of their statutory boundary. [53] In these circumstances, the Applicant’s Originating Summons in Enclosure 1 is therefore dismissed with costs of RM8000.00 to the Respondent. 41    ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 13th day of April 2015 For the Applicant : Tetuan Sukanthan Mizuraini Encik Sukanthan M.Pasupathy For the Respondent : Tetuan Azzat & Izzat Encik Fahri Azzat

Tika 2.6.0

28NCC-243-07/2014

PEMOHON AGILITY LOGISTICS SDN BHD RESPONDEN DISYA SUPPLY AND TRADING SDN. BHD.

13/04/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6a59518f-9cb0-4ba0-89f1-8b1b92fb2792&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATES OF NEGERI SELANGOR DARUL EHSAN COMPANIES WINDING UP NO: 28NCC-243-07/2014 In the matter of Section 218(1) (e) of the Companies Act 1965; And In the matter of DISYA SUPPLY AND TRADING SDN. BHD. (Company No. 989547-H) Between AGILITY LOGISTICS SDN BHD … PETITIONER And DISYA SUPPLY AND TRADING SDN. BHD. … RESPONDENT GROUNDS OF JUDGMENT (Winding Up Petition) [1] Agility Logistics Sdn Bhd (Petitioner) had on 17.7.2014 filed a Petition (Enclosure 1) to wind up Disya Supply and Trading Sdn Bhd (the Respondent) under section 218(1) (e) of the Companies Act 1965 on the ground that the Respondent was unable to satisfy its debts to the Petitioner. [2] Prior to the filing of the Petition, the Petitioner had issued a Notice under Section 218 of the Companies Act 1965 (the 218 notice) dated 12.6.2014 against the Respondent, demanding for payment of the sum of RM254,892.58 being the outstanding sum for services rendered by the Petitioner to the Respondent in 2013. [3] The amount claimed by the Petitioner was supported and substantiated by a Statement of Account and invoices which were exhibited as Exhibit “A-2” in the Petition. [4] The 218 Notice was duly served on the Respondent at its registered address on 12.6.2014. However, the Respondent had failed to satisfy and/or neglected the demand made by the Petitioner. Hence, Enclosure 1 was presented into this Court upon the expiry of the twenty one (21) days of the 218 notice. [5] The Respondent has opposed the Petition by filing Enclosure 14 [Affidavit in Opposition (Opposing Winding Up Petition)] on 17.12.2014, which was affirmed by Mahisham bin Ahmad, the director of the Respondent. [6] In opposing the Petition, the Respondent relied on the following grounds: (i) the filing of the petition in Shah Alam High Court is the wrong forum. (ii) the Respondent’s company is a solvent company and capable to meet its financial obligations. (iii) the amount claimed is disputed. [7] Counsel for the Petitioner raised a preliminary objection in respect of the admissibility of Enclosure 14 on the ground that it was not filed in accordance to Rule 30(1) of the Companies (Winding Up) Rules 1972 (WUR), which requires that an affidavit in opposition to a winding up petition be filed at least seven days before the time appointed for hearing of the petition. [8] It was submitted by the Petitioner’s counsel that there was a failure on the part of the Respondent to comply with the Rules when it filed Enclosure 14 on 17.12.2014, which is beyond the seven days stipulated under Rule 30(1). [9] The Petitioner’s counsel further submitted that when the said Petition was first fixed for hearing for the first time on 15.10.2014, the Respondent did not file its Affidavit in Opposition. During the hearing, upon the request made by the Respondent’s counsel to the Court, the hearing of the Petition was adjourned to 19.11.2014. When the Petition was called for hearing for the second time on 19.11.2014, the Court was made to understand that the Respondent has yet to file its Affidavit in Opposition, but the Respondent’s counsel had informed the court that the Respondent needs time to file an Affidavit in Opposition. The Court had acceded to the Respondent’s request and fixed the Petition for case management before the Senior Assistant Registrar (SAR) for parties to exhaust all affidavits. It was during this time, specifically on the 17.12.2014, that the Respondent filed Enclosure 14 and it was served on the Petitioner’s counsel on 18.12.2014. According to the Petitioner’s counsel, there was a delay of almost 29 days and the Respondent did not provide any explanation to the Court in respect of the delay. Hence, it is the contention of the Petitioner’s counsel that Enclosure 14 is a defective affidavit and must be disregarded by this Court. The Petitioner’s counsel further submitted that Rule 30(1) is one that is mandatory in nature and must be strictly complied with. [10] To support his contention, counsel for the Petitioner has brought to this Court’s attention to three cases, namely: (1) Constrajaya Sdn Bhd v Johor Coastal Development Sdn Bhd [2002] 6 CLJ 92; (2) Crocuses & Daffodils (M) Sdn Bhd v Development & Commercial Bank Bhd [1997] 3 CLJ 485; and (3) Gulf Business Construction (M) Sdn Bhd [2010] 8 CLJ 775. [11] Now, Rule 30(1) WUR reads as follows: 30(1) Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the petition. [12] This Court fully acknowledges the time frame specified under Rule 30(1) with regards to filing an affidavit to oppose a winding up petition. However, with reference to the case at hand, this Court cannot agree with the contention of counsel for the Petitioner. A simple answer to the Petitioner counsel’s contention is this; firstly, when the Respondent’s counsel requested for adjournment during the two hearing dates, the Petitioner’s counsel did not raise any objections. The Petitioner’s counsel was aware that during the two adjourned hearing dates, the Respondent has yet to file the Affidavit in Opposition. If the Petitioner had taken a serious stance against the adjournments of the Petition and takes the position that affidavit in opposition must be filed seven days before 15.10.2014, the Petitioner should have raised its objection on that day with regard to the Respondent’s requests for an adjournment in view to file affidavit to oppose the Petition. Perusing the Court’s minutes of what transpired during the two adjourned hearing dates, I have found not a single iota of objection raised by the Petitioner’s counsel. [13] Secondly, it is trite that the granting of adjournment and refusal of a request for adjournment of hearing is a discretionary matter. It is also trite that this discretionary power of the Court must be exercised judicially upon considerations of all factual circumstances surrounding the said application or case. Rule 30(1) specifies that an affidavit in opposition is to be filed and served seven days before the appointed date of hearing of the winding up petition. The Court is of the view that the purpose of such time frame is to allow sufficient time for the Petitioner to prepare and file its affidavit reply to that affidavit in opposition within three days from the date service of the Affidavit in Opposition on the Petitioner, as specified under Rule 30(2). Should the Respondent fail to observe the time frame, the Petitioner would face the prospect of not being able to comply with Rule 30(2). As this Court had mentioned earlier, if the Petitioner were to raise an objection to Respondent’s request of adjournment, the Court at that point in time would take due consideration of the reasons forwarded by the Respondent for the adjournment, and will decide whether to grant or refuse the request. Since there was no objection raised by the Petitioner, this Court had since exercised its discretionary power by granting the two adjournments applied for by the Respondent. Therefore when the Petition was fixed for hearing on 13.4.2015, the time appointed for hearing of the Petition as specified under Rule 30(1) is on 13.4.2015, not on 17.10.2014 as submitted by counsel for the Petitioner. The Court disagrees with the contention raised by the Petitioner’s counsel and finds that the filing of Enclosure 14 on 17.12.2014 was well within time stipulated under Rule 30(1) as the time appointed for hearing of the Petition here is 13.4.2015, [14] This Court shall now address the grounds raised by the Respondent to oppose the winding up petition. Ground (i): the Shah Alam High Court is not the appropriate forum to file the winding up petition. [15] The Respondent submits that the Kuantan High Court would have been the proper forum for the filing of the winding up petition, as all invoices and notice of demand issued by the Petitioner were addressed to the Respondent’s registered business address in Kuantan. The Respondent went on further to submit that the Shah Alam High Court is not the appropriate forum for filing of the winding up Petition, and its filing was motivated to cause inconvenience to the Respondent. [16] In respect of the issue of wrong forum raised by the Respondent, it is trite that the constitution and jurisdiction of the Malaysian courts are clearly enshrined in the Federal Constitution. Article 121(1) of the Federal Constitution constituted two High Courts having co-ordinate jurisdiction and status namely; (i) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and (ii) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine. [17] The territorial jurisdiction of the two High Courts is defined under the section 3 of Courts of Judicature Act 1964 (CJA) which reads: “local jurisdiction” means- (a) in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu (and) the Federal Territory of Kuala Lumpur; and (b) in the case of the High Court in [Sabah and Sarawak], the territory comprised in the States of [Sabah, Sarawak] and the Federal Territory of Labuan. (c) … including, in either case, the territorial waters [and the air space above those States and the territorial waters]; [18] Given the definition local jurisdiction under section 3 of the CJA, if one of such High Court has jurisdiction over any cause or matter, it shall necessarily follow that any branch of the High Court within the same territorial limit shall likewise have jurisdiction thereon. [19] Thus, in the case before the court here it is not so much of dispute with regard to territorial limit, but which branch of the High Court of Malaya is the forum convenient for the presentation of the winding up petition by the Petitioner. [20] The civil jurisdiction of the High Court of Sabah and Sarawak and that of the High Court of Malaya is provided in subsection 23(1) of the Courts of Judicature Act 1964 (“the Act”), which provides as follows:- 23. (1) Subject to the limitation contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where – (a) the cause of action arose; or (b) the defendant or one of the several defendants resides or has his place of business; or (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.” [21] It is well settled that the jurisdiction of the High Court as provided in subsection 23(1) of the Act, paragraphs (a), (b), (c) and (d) must be read disjunctively. (See Malayan Banking Bhd v International Tin Council and another appeal [1989] 3 MLJ 286, Malacca Securities Sdn Bhd v Loke Yu [1998] 3 AMR 2501 and Mee Ying Enterprise Jewellers (suing as a firm) v Che Jah bte Abdullah [1992] 2 MLJ 263). [22] In the case of Sogelease Advance (Malaysia) Sdn Bhd v Kemajuan Tat Young Sdn Bhd 7 Ors [1999] 1 AMR 652), it was held that where the cause of action arose in the State of Malaya but the Defendants resides or have their place of business in Sarawak, it was held that the High Court of Malaya has jurisdiction by virtue of paragraph (a) of subsection 23(1) of the Act and that the High Court of Sabah and Sarawak has jurisdiction by virtue of paragraph (b) of the said subsection. [23] This Court is in agreement with the submission of the Petitioner’s counsel that even though the invoices and notice of demand were issued to the Respondent’s registered address in Kuantan, the agreement between the Petitioner and the Respondent which triggered the presentation of the Petition was due to the Respondent's unpaid debts that arose in Shah Alam. When the Respondent failed to comply to the 218 notice, the breach had then occurred in Shah Alam when the Respondent failed to pay the amount owed to the Petitioner. The Petitioner’s office is located in Shah Alam, hence payment should be made in Shah Alam and the failure to do so renders the debt deemed unpaid. Further, it was not disputed that the Respondent had made a payment of RM10,000.00 to the Petitioner after the expiry of the 218 Notice, and this payment was made to the Petitioner in Shah Alam. This payment was a clear acceptance by the Respondent that the forum convenient is the Shah Alam High Court and the Respondent cannot now contend it is inconvenient for them when the Petition is filed at the Shah Alam High Court. It must also be noted that the Respondent had engaged a firm of solicitors which is based Kuala Lumpur, which is in close proximity to Shah Alam. This Court is therefore of the view that the Petitioner is entitled to present the winding up Petition in the Shah Alam High Court. Ground (ii): the Respondent’s company is a solvent company and capable to meet its financial obligations. [24] The Petitioner’s Petition is premised on the presumption that the Respondent was unable to pay its debts to the Petitioner when it failed to make payment of the amount demanded in the section 218 notice within 21 days from the service of the said notice. This necessitates examination of the legal principles and scope of section 218(e) in particular the phrase 'unable to pay its debts'. Now, section 218(1)(e) reads: (1) The Court may order the winding up if – (e) if the company is unable to pay its debts. [25] In the case of Lian Keow Sdn Bhd (In Liquidation) & Anor v Overseas Credit Finance (M) Sdn Bhd [1988] 2 MLJ 449, Seah SJ delivering the decision of the Supreme Court in giving the meaning of the words ‘unable to pay its debts’ at page 454 said: “The meaning of the words ‘a person unable to pay his debt as they become due from his money’ in s 53(1) of the Bankruptcy Act 1967 (as amended) was considered by me in the unreported case of In Re Chong Khian (Bankrupt) (Kuching High Court No K45 of 1978). After referring to some passages in the Australian cases of Bank of Australasia v Hall (1907) 4 CLR 1514 (at pp 1528 and 1543) Rees v Bank of New South Wales (1963-64) 111 CLR 210 (at pp 218 and 230) I held that the question whether a debtor was solvent at a particular time was a question of fact. I also made the following observations: “The question is not whether the debtor would be able, if time were given to him, to pay his debts out of his assets, but whether he is presently able to do so with moneys actually available …” And ‘If … the debtor’s position is such that he has property … which if realize would produce sufficient money to pay all his indebtedness, and if that property is in such a position as to title and otherwise that it could be realized in time to meet the indebtedness as the claims mature … He cannot be said to be unable to pay his debts as they become due from his own moneys …’ In short, the question is not whether the debtor’s assets exceed his liabilities as appeared in the books of the debtor, but whether there a moneys presently available to the debtor, or which he is able to realize in time to meet the debts as they become due. It is not sufficient that the assets might be realizable at some future date after the debts have become due and payable.” [26] The Privy Council in the case of Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53, had cited the following observations from Buckley on the Companies Act (13th Ed) at page 460: "In such a case it is useless to say that if its assets are realized there will be ample to pay twenty shillings in the pound: this is not the test. A company may be at the same time insolvent and wealthy. It may have wealth locked up in investments not presently realizable; but although this be so, yet if it have not assets available to meet its current liabilities it is commercially insolvent and may be wound up.” [27] In the case of Hotel Royal Ltd Bhd v Tina Travel & Agencies Sdn Bhd [1990] 1 MLJ 21 Siti Norma J (as her Ladyship then was) in dismissing an application to oppose the petition and granted an order to wind up the company held that the test for the solvency of a company does not depend on the presence of their realizable assets. In her Ladyship’s judgment, reference was made to the meaning of phrase unable to pay its debts in McPherson The Law of company Liquidation (3rd Ed) in which at page 22, she said: ‘The scope or the meaning to be given to the phrase ‘unable to pay its debts’ appearing in s 218(1)(e) of the Companies Act 1965 is as explained by McPherson J in his books The Law of company Liquidation (3rd Ed) at page follows: “The phrase ‘unable to pay its debts’ is susceptible of two interpretations. One meaning which may properly be attached to it is that a company is unable to pay its debts if it is shown to be financially insolvent in the sense that its liabilities exceeds its assets. But to require proof of this in every case would impose upon an applicant the often near-impossible task of establishing the true financial position of the company, and the weight of authority undoubtedly supports the view that the primary meaning to the phrase is insolvency in the commercial sense – that is inability to meet current demands irrespective of whether the company is possessed of assets which, if realized, would enable it to discharge its liabilities in full”.’ [28] In the case of MBf Finance Bhd v Sri Hartamas Development Sdn Bhd [1992] 3 CLJ (Rep) 55, it was held by Zakaria Yatim J (as he then was) that the presumption of insolvency is not rebutted by a contention that the company had many assets locked up in pieces of land. Zakaria Yatim J had referred to the Privy Council’s decision in the case of Malayan Plant (Pte) Ltd and at page 65, he said this: “What the company was saying was that it had assets but all the assets were locked up in landed properties. In my opinion the company had failed to show that it was not insolvent. In Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53 (an appeal from the Singapore Court of Appeal), the Privy Council in its decision at p 54 said: …” [29] Abdul Malik Ishak J (as he then was) in the case of Pioneer Concrete (M) Sdn Bhd v Celini Corp Sdn Bhd [1998] 3 MLJ 810 has laid down the test of commercial insolvency in which at page 814 he had said this: “... It is germane to mention that the test of commercial insolvency is simple. It is this. Whether the company is unable to meet its current debts as they fall due? A company may have substantial wealth which cannot be realized immediately and if that happens the company is said to be unable to pay its debts within the purview and ambit of s 218(1)(e) of the Companies Act 1965 and this is so even though on liquidation the company will be able to meet all its liabilities: Re Sunshine Securities (Pte) Ltd; Sunshine Securities (Pte) Ltd & Anor v Official Receiver and Liquidator of Mosbert Acceptance Ltd [1978] 1 MLJ 57; Wei Giap Construction Co (Pte) Ltd v Intraco Ltd [1979] 2 MLJ 4; Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53; of Hotel Royal Ltd Bhd v Tina Travel & Agencies Sdn Bhd [1990] 1 MLJ 21; MBf Finance Bhd v Sri Hartamas Development Sdn Bhd [1992] 1 CLJ 160 at p 169; Lian Keow Sdn Bhd (in liquidation) & Anor v Overseas Credit Finance (M) Sdn Bhd & Ors [1988] 2 MLJ 449 and PT Anekapangan Dwitama v Far East Food Industries Sdn Bhd [1995] 1 MLJ 21 at p 29.” (emphasis added) [30] Coming back to the present case, the Respondent in its effort to rebut the presumption of insolvency and inability to pay the debts contended that the company is running an active business with ongoing and future projects. To support this, the Respondent relied on two contentions, namely; (i) the Respondent’s 2013 Reports and Financial Statement (Exhibit “MBA-1”) prepared by Wan Nadzir & Co, a chartered accounting firm which shows that the Respondent’s current available assets both liquidated and unliquidated as at 31.12.2013 is RM359,228.00, which is more than what is claimed by the Petitioner; (ii) the Respondent’s holding company, Syamiras Group Sdn. Bhd has two other subsidiary companies which are Disya Resources Sdn Bhd and Syamiras Services Sdn Bhd. These two sister companies of the Respondent have more than enough available fund to cover the Respondent’s debt. In support of this contention, the Respondent had exhibited Exhibit “MBA-2” and Exhibit “MBA-3” in Enclosure 14 to show the liquidated assets and unliquidated of these two companies as at 31.12.2013. [31] In respect of the first contention, it must be noted that the Respondent had referred this Court to its 2013 Reports and Financial Statement. However, the recent official search conducted on the Respondent’s company by the Petitioner shows otherwise. The summary of financial information dated 10.6.2014, i.e before the presentation of the petition [Exhibit “LKP-2”, Enclosure 15, Petitioner’s affidavit in Reply (1)] shows that the current assets of the Respondent is valued at RM150,871.00 and with current liabilities of RM89,422.00 and negative RM38,551.00 being the Reserves. No profit was recorded by the company, but it posted losses at the sum of RM38,551.00. An official search dated 23.12.2014 (Exhibit “LKP-3", Enclosure 15) shows that the Respondent's current liabilities is RM415,581.00 with negative RM78,795.00 being the Reserves and the most recent official search conducted on 26.1.2015 (Exhibit “LKP-7”, Enclosure 15) from the Registrar of Companies shows that the financial status of the Respondent remains unchanged. [32] As such, the summary of the financial information at the time when the Petition was presented clearly shows that upon taking into account the Respondent’s current assets against its current liabilities was at a negative balance. This clearly shows there was no profit recorded but instead the Respondent posted losses of RM38,551.00. The Court further take note that as at December 2014, the losses recorded by the Respondent had increased to RM40,244.00. This Court is of the considered view that having a negative balance and running at a loss clearly establishes the insolvency of the Respondent and the fact that the Respondent is unable to meet its financial obligation. [33] With regards to the Respondent’s second contention that its sister companies have more than enough fund to cover the debt owing to the Petitioner, this Court opines that the fact that sister companies have funds more than the amount owing to the creditor does not prove that the Respondent is solvent and is able to pay its debt. The legal position remains that it is incumbent upon the Respondent itself to prove that at the time of the presentation of the Petition, it has the fund or immediately realizable assets to pay its dues when the debt is demanded. Additionally, the sister companies are separate legal entities which are alien to the Petitioner as the Petitioner does not have any dealings with both sister companies. This Court is of the view that the available of funds in the sister companies do not in any way prove the Respondent’s solvency and ability to meet its financial obligations. Thus, this contention could not be used as a justification to challenge the winding up petition. Ground (iii): the amount claimed is disputed. [34] It was the contention of the Respondent that it has no obligation to make payment to the Petitioner as the debt of RM 244,892.58 claimed by the Petitioner is not owed by the Respondent but by another party. The reason why the Respondent alleged so was due to the terms of delivery invoices issued by the Petitioner, being the basis of the Petitioner’s claim, is on CIF terms. CIF being the abbreviation for Cost, Insurance and Freight is a term which means that the cost of bringing the goods (insurance and freight) to any destination will be borne by the seller and not the buyer. In this regard, one of the invoices, specifically Invoice No: 0008008875 for RM105,742.20 is based on CIF terms. The Respondent submits that since the Respondent is the buyer of the goods, the amount of RM105,742.20 claimed by the Petitioner should not be borne by the Respondent. [35] This Court has no reason to disagree with the Petitioner’s counsel’s submission that the CIF terms raised by the Respondent to dispute the debt is only appearing for the first time when the Respondent filed its Affidavit in Opposition (Enclosure 14) on 17.12.2014. Prior to this, since as early as 2013 when the parties started their business relationship, there was no mention at all of CIF terms nor did the Respondent ever disputed invoices that were sent to it for services rendered by the Petitioner since 2013. The Respondent did not raise any objection towards the 218 Notice issue against them which was premised on the unpaid invoices. The Court takes cognisance of the fact that after the expiry of the 21 days of the 218 Notice, the Respondent had paid the sum of RM10,000.00 to the Petitioner. Further, the Respondent did not dispute the debt of RM244,892.58 and in fact, the Respondent has vide its letter dated 8.10.2014 [Exhibit “LKP-4”, Enclosure 17 (Petitioner’s Affidavit in Reply (2)] which was addressed to the Petitioner’s solicitors had admitted the amount and proposed to settle the outstanding sum in the next 90 days. In reply to this letter, the Petitioner through its solicitor’s letter dated 10.10.2014 (Exhibit “LKP-5”, Enclosure 17) counter proposed that the sum of RM244,892.58 together with the legal fees should be paid by way of Bank Draft on/before 14.11.2014 which was accepted by the Respondent through its letter dated 14.10.2014 (Exhibit “LKP-6”, Enclosure 17). [36] The Respondent in its correspondences had never raised the CIF term but had in their own letters acknowledged and admitted its indebtedness to the Petitioner. (See Chip Yew Bricks Works Sdn Bhd v Chang Heer Enterprise Sdn Bhd [1988] 2 MLJ 447). This Court agrees with the Petitioner’s counsel that the CIF term raised by the Respondent is clearly an afterthought and such issue was not bona fide on the part of the Respondent. [37] Based on the aforementioned reasons, the Respondent had failed to rebut the presumption that it is unable to pay its debts. Hence, prayers (10(i) and (ii)), of Enclosure 1 is allowed with costs of RM5000/- to the Petitioner. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 13th day of April, 2015. For the Petitioner - Messrs Affendi Zahari Mr. Ahmad Amir bin Mahmood For the Respondent - Tetuan Prasad Abraham & Associates Ms. Veronica Dominic 1

Tika 2.6.0

28NCC-243-07/2014

PEMOHON AGILITY LOGISTICS SDN BHD RESPONDEN DISYA SUPPLY AND TRADING SDN. BHD.

13/04/2015

YA DATUK AZIMAH BINTI OMAR

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IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATES OF NEGERI SELANGOR DARUL EHSAN COMPANIES WINDING UP NO: 28NCC-243-07/2014 In the matter of Section 218(1) (e) of the Companies Act 1965; And In the matter of DISYA SUPPLY AND TRADING SDN. BHD. (Company No. 989547-H) Between AGILITY LOGISTICS SDN BHD … PETITIONER And DISYA SUPPLY AND TRADING SDN. BHD. … RESPONDENT GROUNDS OF JUDGMENT (Winding Up Petition) [1] Agility Logistics Sdn Bhd (Petitioner) had on 17.7.2014 filed a Petition (Enclosure 1) to wind up Disya Supply and Trading Sdn Bhd (the Respondent) under section 218(1) (e) of the Companies Act 1965 on the ground that the Respondent was unable to satisfy its debts to the Petitioner. [2] Prior to the filing of the Petition, the Petitioner had issued a Notice under Section 218 of the Companies Act 1965 (the 218 notice) dated 12.6.2014 against the Respondent, demanding for payment of the sum of RM254,892.58 being the outstanding sum for services rendered by the Petitioner to the Respondent in 2013. [3] The amount claimed by the Petitioner was supported and substantiated by a Statement of Account and invoices which were exhibited as Exhibit “A-2” in the Petition. [4] The 218 Notice was duly served on the Respondent at its registered address on 12.6.2014. However, the Respondent had failed to satisfy and/or neglected the demand made by the Petitioner. Hence, Enclosure 1 was presented into this Court upon the expiry of the twenty one (21) days of the 218 notice. [5] The Respondent has opposed the Petition by filing Enclosure 14 [Affidavit in Opposition (Opposing Winding Up Petition)] on 17.12.2014, which was affirmed by Mahisham bin Ahmad, the director of the Respondent. [6] In opposing the Petition, the Respondent relied on the following grounds: (i) the filing of the petition in Shah Alam High Court is the wrong forum. (ii) the Respondent’s company is a solvent company and capable to meet its financial obligations. (iii) the amount claimed is disputed. [7] Counsel for the Petitioner raised a preliminary objection in respect of the admissibility of Enclosure 14 on the ground that it was not filed in accordance to Rule 30(1) of the Companies (Winding Up) Rules 1972 (WUR), which requires that an affidavit in opposition to a winding up petition be filed at least seven days before the time appointed for hearing of the petition. [8] It was submitted by the Petitioner’s counsel that there was a failure on the part of the Respondent to comply with the Rules when it filed Enclosure 14 on 17.12.2014, which is beyond the seven days stipulated under Rule 30(1). [9] The Petitioner’s counsel further submitted that when the said Petition was first fixed for hearing for the first time on 15.10.2014, the Respondent did not file its Affidavit in Opposition. During the hearing, upon the request made by the Respondent’s counsel to the Court, the hearing of the Petition was adjourned to 19.11.2014. When the Petition was called for hearing for the second time on 19.11.2014, the Court was made to understand that the Respondent has yet to file its Affidavit in Opposition, but the Respondent’s counsel had informed the court that the Respondent needs time to file an Affidavit in Opposition. The Court had acceded to the Respondent’s request and fixed the Petition for case management before the Senior Assistant Registrar (SAR) for parties to exhaust all affidavits. It was during this time, specifically on the 17.12.2014, that the Respondent filed Enclosure 14 and it was served on the Petitioner’s counsel on 18.12.2014. According to the Petitioner’s counsel, there was a delay of almost 29 days and the Respondent did not provide any explanation to the Court in respect of the delay. Hence, it is the contention of the Petitioner’s counsel that Enclosure 14 is a defective affidavit and must be disregarded by this Court. The Petitioner’s counsel further submitted that Rule 30(1) is one that is mandatory in nature and must be strictly complied with. [10] To support his contention, counsel for the Petitioner has brought to this Court’s attention to three cases, namely: (1) Constrajaya Sdn Bhd v Johor Coastal Development Sdn Bhd [2002] 6 CLJ 92; (2) Crocuses & Daffodils (M) Sdn Bhd v Development & Commercial Bank Bhd [1997] 3 CLJ 485; and (3) Gulf Business Construction (M) Sdn Bhd [2010] 8 CLJ 775. [11] Now, Rule 30(1) WUR reads as follows: 30(1) Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the petition. [12] This Court fully acknowledges the time frame specified under Rule 30(1) with regards to filing an affidavit to oppose a winding up petition. However, with reference to the case at hand, this Court cannot agree with the contention of counsel for the Petitioner. A simple answer to the Petitioner counsel’s contention is this; firstly, when the Respondent’s counsel requested for adjournment during the two hearing dates, the Petitioner’s counsel did not raise any objections. The Petitioner’s counsel was aware that during the two adjourned hearing dates, the Respondent has yet to file the Affidavit in Opposition. If the Petitioner had taken a serious stance against the adjournments of the Petition and takes the position that affidavit in opposition must be filed seven days before 15.10.2014, the Petitioner should have raised its objection on that day with regard to the Respondent’s requests for an adjournment in view to file affidavit to oppose the Petition. Perusing the Court’s minutes of what transpired during the two adjourned hearing dates, I have found not a single iota of objection raised by the Petitioner’s counsel. [13] Secondly, it is trite that the granting of adjournment and refusal of a request for adjournment of hearing is a discretionary matter. It is also trite that this discretionary power of the Court must be exercised judicially upon considerations of all factual circumstances surrounding the said application or case. Rule 30(1) specifies that an affidavit in opposition is to be filed and served seven days before the appointed date of hearing of the winding up petition. The Court is of the view that the purpose of such time frame is to allow sufficient time for the Petitioner to prepare and file its affidavit reply to that affidavit in opposition within three days from the date service of the Affidavit in Opposition on the Petitioner, as specified under Rule 30(2). Should the Respondent fail to observe the time frame, the Petitioner would face the prospect of not being able to comply with Rule 30(2). As this Court had mentioned earlier, if the Petitioner were to raise an objection to Respondent’s request of adjournment, the Court at that point in time would take due consideration of the reasons forwarded by the Respondent for the adjournment, and will decide whether to grant or refuse the request. Since there was no objection raised by the Petitioner, this Court had since exercised its discretionary power by granting the two adjournments applied for by the Respondent. Therefore when the Petition was fixed for hearing on 13.4.2015, the time appointed for hearing of the Petition as specified under Rule 30(1) is on 13.4.2015, not on 17.10.2014 as submitted by counsel for the Petitioner. The Court disagrees with the contention raised by the Petitioner’s counsel and finds that the filing of Enclosure 14 on 17.12.2014 was well within time stipulated under Rule 30(1) as the time appointed for hearing of the Petition here is 13.4.2015, [14] This Court shall now address the grounds raised by the Respondent to oppose the winding up petition. Ground (i): the Shah Alam High Court is not the appropriate forum to file the winding up petition. [15] The Respondent submits that the Kuantan High Court would have been the proper forum for the filing of the winding up petition, as all invoices and notice of demand issued by the Petitioner were addressed to the Respondent’s registered business address in Kuantan. The Respondent went on further to submit that the Shah Alam High Court is not the appropriate forum for filing of the winding up Petition, and its filing was motivated to cause inconvenience to the Respondent. [16] In respect of the issue of wrong forum raised by the Respondent, it is trite that the constitution and jurisdiction of the Malaysian courts are clearly enshrined in the Federal Constitution. Article 121(1) of the Federal Constitution constituted two High Courts having co-ordinate jurisdiction and status namely; (i) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and (ii) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine. [17] The territorial jurisdiction of the two High Courts is defined under the section 3 of Courts of Judicature Act 1964 (CJA) which reads: “local jurisdiction” means- (a) in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu (and) the Federal Territory of Kuala Lumpur; and (b) in the case of the High Court in [Sabah and Sarawak], the territory comprised in the States of [Sabah, Sarawak] and the Federal Territory of Labuan. (c) … including, in either case, the territorial waters [and the air space above those States and the territorial waters]; [18] Given the definition local jurisdiction under section 3 of the CJA, if one of such High Court has jurisdiction over any cause or matter, it shall necessarily follow that any branch of the High Court within the same territorial limit shall likewise have jurisdiction thereon. [19] Thus, in the case before the court here it is not so much of dispute with regard to territorial limit, but which branch of the High Court of Malaya is the forum convenient for the presentation of the winding up petition by the Petitioner. [20] The civil jurisdiction of the High Court of Sabah and Sarawak and that of the High Court of Malaya is provided in subsection 23(1) of the Courts of Judicature Act 1964 (“the Act”), which provides as follows:- 23. (1) Subject to the limitation contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where – (a) the cause of action arose; or (b) the defendant or one of the several defendants resides or has his place of business; or (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.” [21] It is well settled that the jurisdiction of the High Court as provided in subsection 23(1) of the Act, paragraphs (a), (b), (c) and (d) must be read disjunctively. (See Malayan Banking Bhd v International Tin Council and another appeal [1989] 3 MLJ 286, Malacca Securities Sdn Bhd v Loke Yu [1998] 3 AMR 2501 and Mee Ying Enterprise Jewellers (suing as a firm) v Che Jah bte Abdullah [1992] 2 MLJ 263). [22] In the case of Sogelease Advance (Malaysia) Sdn Bhd v Kemajuan Tat Young Sdn Bhd 7 Ors [1999] 1 AMR 652), it was held that where the cause of action arose in the State of Malaya but the Defendants resides or have their place of business in Sarawak, it was held that the High Court of Malaya has jurisdiction by virtue of paragraph (a) of subsection 23(1) of the Act and that the High Court of Sabah and Sarawak has jurisdiction by virtue of paragraph (b) of the said subsection. [23] This Court is in agreement with the submission of the Petitioner’s counsel that even though the invoices and notice of demand were issued to the Respondent’s registered address in Kuantan, the agreement between the Petitioner and the Respondent which triggered the presentation of the Petition was due to the Respondent's unpaid debts that arose in Shah Alam. When the Respondent failed to comply to the 218 notice, the breach had then occurred in Shah Alam when the Respondent failed to pay the amount owed to the Petitioner. The Petitioner’s office is located in Shah Alam, hence payment should be made in Shah Alam and the failure to do so renders the debt deemed unpaid. Further, it was not disputed that the Respondent had made a payment of RM10,000.00 to the Petitioner after the expiry of the 218 Notice, and this payment was made to the Petitioner in Shah Alam. This payment was a clear acceptance by the Respondent that the forum convenient is the Shah Alam High Court and the Respondent cannot now contend it is inconvenient for them when the Petition is filed at the Shah Alam High Court. It must also be noted that the Respondent had engaged a firm of solicitors which is based Kuala Lumpur, which is in close proximity to Shah Alam. This Court is therefore of the view that the Petitioner is entitled to present the winding up Petition in the Shah Alam High Court. Ground (ii): the Respondent’s company is a solvent company and capable to meet its financial obligations. [24] The Petitioner’s Petition is premised on the presumption that the Respondent was unable to pay its debts to the Petitioner when it failed to make payment of the amount demanded in the section 218 notice within 21 days from the service of the said notice. This necessitates examination of the legal principles and scope of section 218(e) in particular the phrase 'unable to pay its debts'. Now, section 218(1)(e) reads: (1) The Court may order the winding up if – (e) if the company is unable to pay its debts. [25] In the case of Lian Keow Sdn Bhd (In Liquidation) & Anor v Overseas Credit Finance (M) Sdn Bhd [1988] 2 MLJ 449, Seah SJ delivering the decision of the Supreme Court in giving the meaning of the words ‘unable to pay its debts’ at page 454 said: “The meaning of the words ‘a person unable to pay his debt as they become due from his money’ in s 53(1) of the Bankruptcy Act 1967 (as amended) was considered by me in the unreported case of In Re Chong Khian (Bankrupt) (Kuching High Court No K45 of 1978). After referring to some passages in the Australian cases of Bank of Australasia v Hall (1907) 4 CLR 1514 (at pp 1528 and 1543) Rees v Bank of New South Wales (1963-64) 111 CLR 210 (at pp 218 and 230) I held that the question whether a debtor was solvent at a particular time was a question of fact. I also made the following observations: “The question is not whether the debtor would be able, if time were given to him, to pay his debts out of his assets, but whether he is presently able to do so with moneys actually available …” And ‘If … the debtor’s position is such that he has property … which if realize would produce sufficient money to pay all his indebtedness, and if that property is in such a position as to title and otherwise that it could be realized in time to meet the indebtedness as the claims mature … He cannot be said to be unable to pay his debts as they become due from his own moneys …’ In short, the question is not whether the debtor’s assets exceed his liabilities as appeared in the books of the debtor, but whether there a moneys presently available to the debtor, or which he is able to realize in time to meet the debts as they become due. It is not sufficient that the assets might be realizable at some future date after the debts have become due and payable.” [26] The Privy Council in the case of Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53, had cited the following observations from Buckley on the Companies Act (13th Ed) at page 460: "In such a case it is useless to say that if its assets are realized there will be ample to pay twenty shillings in the pound: this is not the test. A company may be at the same time insolvent and wealthy. It may have wealth locked up in investments not presently realizable; but although this be so, yet if it have not assets available to meet its current liabilities it is commercially insolvent and may be wound up.” [27] In the case of Hotel Royal Ltd Bhd v Tina Travel & Agencies Sdn Bhd [1990] 1 MLJ 21 Siti Norma J (as her Ladyship then was) in dismissing an application to oppose the petition and granted an order to wind up the company held that the test for the solvency of a company does not depend on the presence of their realizable assets. In her Ladyship’s judgment, reference was made to the meaning of phrase unable to pay its debts in McPherson The Law of company Liquidation (3rd Ed) in which at page 22, she said: ‘The scope or the meaning to be given to the phrase ‘unable to pay its debts’ appearing in s 218(1)(e) of the Companies Act 1965 is as explained by McPherson J in his books The Law of company Liquidation (3rd Ed) at page follows: “The phrase ‘unable to pay its debts’ is susceptible of two interpretations. One meaning which may properly be attached to it is that a company is unable to pay its debts if it is shown to be financially insolvent in the sense that its liabilities exceeds its assets. But to require proof of this in every case would impose upon an applicant the often near-impossible task of establishing the true financial position of the company, and the weight of authority undoubtedly supports the view that the primary meaning to the phrase is insolvency in the commercial sense – that is inability to meet current demands irrespective of whether the company is possessed of assets which, if realized, would enable it to discharge its liabilities in full”.’ [28] In the case of MBf Finance Bhd v Sri Hartamas Development Sdn Bhd [1992] 3 CLJ (Rep) 55, it was held by Zakaria Yatim J (as he then was) that the presumption of insolvency is not rebutted by a contention that the company had many assets locked up in pieces of land. Zakaria Yatim J had referred to the Privy Council’s decision in the case of Malayan Plant (Pte) Ltd and at page 65, he said this: “What the company was saying was that it had assets but all the assets were locked up in landed properties. In my opinion the company had failed to show that it was not insolvent. In Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53 (an appeal from the Singapore Court of Appeal), the Privy Council in its decision at p 54 said: …” [29] Abdul Malik Ishak J (as he then was) in the case of Pioneer Concrete (M) Sdn Bhd v Celini Corp Sdn Bhd [1998] 3 MLJ 810 has laid down the test of commercial insolvency in which at page 814 he had said this: “... It is germane to mention that the test of commercial insolvency is simple. It is this. Whether the company is unable to meet its current debts as they fall due? A company may have substantial wealth which cannot be realized immediately and if that happens the company is said to be unable to pay its debts within the purview and ambit of s 218(1)(e) of the Companies Act 1965 and this is so even though on liquidation the company will be able to meet all its liabilities: Re Sunshine Securities (Pte) Ltd; Sunshine Securities (Pte) Ltd & Anor v Official Receiver and Liquidator of Mosbert Acceptance Ltd [1978] 1 MLJ 57; Wei Giap Construction Co (Pte) Ltd v Intraco Ltd [1979] 2 MLJ 4; Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53; of Hotel Royal Ltd Bhd v Tina Travel & Agencies Sdn Bhd [1990] 1 MLJ 21; MBf Finance Bhd v Sri Hartamas Development Sdn Bhd [1992] 1 CLJ 160 at p 169; Lian Keow Sdn Bhd (in liquidation) & Anor v Overseas Credit Finance (M) Sdn Bhd & Ors [1988] 2 MLJ 449 and PT Anekapangan Dwitama v Far East Food Industries Sdn Bhd [1995] 1 MLJ 21 at p 29.” (emphasis added) [30] Coming back to the present case, the Respondent in its effort to rebut the presumption of insolvency and inability to pay the debts contended that the company is running an active business with ongoing and future projects. To support this, the Respondent relied on two contentions, namely; (i) the Respondent’s 2013 Reports and Financial Statement (Exhibit “MBA-1”) prepared by Wan Nadzir & Co, a chartered accounting firm which shows that the Respondent’s current available assets both liquidated and unliquidated as at 31.12.2013 is RM359,228.00, which is more than what is claimed by the Petitioner; (ii) the Respondent’s holding company, Syamiras Group Sdn. Bhd has two other subsidiary companies which are Disya Resources Sdn Bhd and Syamiras Services Sdn Bhd. These two sister companies of the Respondent have more than enough available fund to cover the Respondent’s debt. In support of this contention, the Respondent had exhibited Exhibit “MBA-2” and Exhibit “MBA-3” in Enclosure 14 to show the liquidated assets and unliquidated of these two companies as at 31.12.2013. [31] In respect of the first contention, it must be noted that the Respondent had referred this Court to its 2013 Reports and Financial Statement. However, the recent official search conducted on the Respondent’s company by the Petitioner shows otherwise. The summary of financial information dated 10.6.2014, i.e before the presentation of the petition [Exhibit “LKP-2”, Enclosure 15, Petitioner’s affidavit in Reply (1)] shows that the current assets of the Respondent is valued at RM150,871.00 and with current liabilities of RM89,422.00 and negative RM38,551.00 being the Reserves. No profit was recorded by the company, but it posted losses at the sum of RM38,551.00. An official search dated 23.12.2014 (Exhibit “LKP-3", Enclosure 15) shows that the Respondent's current liabilities is RM415,581.00 with negative RM78,795.00 being the Reserves and the most recent official search conducted on 26.1.2015 (Exhibit “LKP-7”, Enclosure 15) from the Registrar of Companies shows that the financial status of the Respondent remains unchanged. [32] As such, the summary of the financial information at the time when the Petition was presented clearly shows that upon taking into account the Respondent’s current assets against its current liabilities was at a negative balance. This clearly shows there was no profit recorded but instead the Respondent posted losses of RM38,551.00. The Court further take note that as at December 2014, the losses recorded by the Respondent had increased to RM40,244.00. This Court is of the considered view that having a negative balance and running at a loss clearly establishes the insolvency of the Respondent and the fact that the Respondent is unable to meet its financial obligation. [33] With regards to the Respondent’s second contention that its sister companies have more than enough fund to cover the debt owing to the Petitioner, this Court opines that the fact that sister companies have funds more than the amount owing to the creditor does not prove that the Respondent is solvent and is able to pay its debt. The legal position remains that it is incumbent upon the Respondent itself to prove that at the time of the presentation of the Petition, it has the fund or immediately realizable assets to pay its dues when the debt is demanded. Additionally, the sister companies are separate legal entities which are alien to the Petitioner as the Petitioner does not have any dealings with both sister companies. This Court is of the view that the available of funds in the sister companies do not in any way prove the Respondent’s solvency and ability to meet its financial obligations. Thus, this contention could not be used as a justification to challenge the winding up petition. Ground (iii): the amount claimed is disputed. [34] It was the contention of the Respondent that it has no obligation to make payment to the Petitioner as the debt of RM 244,892.58 claimed by the Petitioner is not owed by the Respondent but by another party. The reason why the Respondent alleged so was due to the terms of delivery invoices issued by the Petitioner, being the basis of the Petitioner’s claim, is on CIF terms. CIF being the abbreviation for Cost, Insurance and Freight is a term which means that the cost of bringing the goods (insurance and freight) to any destination will be borne by the seller and not the buyer. In this regard, one of the invoices, specifically Invoice No: 0008008875 for RM105,742.20 is based on CIF terms. The Respondent submits that since the Respondent is the buyer of the goods, the amount of RM105,742.20 claimed by the Petitioner should not be borne by the Respondent. [35] This Court has no reason to disagree with the Petitioner’s counsel’s submission that the CIF terms raised by the Respondent to dispute the debt is only appearing for the first time when the Respondent filed its Affidavit in Opposition (Enclosure 14) on 17.12.2014. Prior to this, since as early as 2013 when the parties started their business relationship, there was no mention at all of CIF terms nor did the Respondent ever disputed invoices that were sent to it for services rendered by the Petitioner since 2013. The Respondent did not raise any objection towards the 218 Notice issue against them which was premised on the unpaid invoices. The Court takes cognisance of the fact that after the expiry of the 21 days of the 218 Notice, the Respondent had paid the sum of RM10,000.00 to the Petitioner. Further, the Respondent did not dispute the debt of RM244,892.58 and in fact, the Respondent has vide its letter dated 8.10.2014 [Exhibit “LKP-4”, Enclosure 17 (Petitioner’s Affidavit in Reply (2)] which was addressed to the Petitioner’s solicitors had admitted the amount and proposed to settle the outstanding sum in the next 90 days. In reply to this letter, the Petitioner through its solicitor’s letter dated 10.10.2014 (Exhibit “LKP-5”, Enclosure 17) counter proposed that the sum of RM244,892.58 together with the legal fees should be paid by way of Bank Draft on/before 14.11.2014 which was accepted by the Respondent through its letter dated 14.10.2014 (Exhibit “LKP-6”, Enclosure 17). [36] The Respondent in its correspondences had never raised the CIF term but had in their own letters acknowledged and admitted its indebtedness to the Petitioner. (See Chip Yew Bricks Works Sdn Bhd v Chang Heer Enterprise Sdn Bhd [1988] 2 MLJ 447). This Court agrees with the Petitioner’s counsel that the CIF term raised by the Respondent is clearly an afterthought and such issue was not bona fide on the part of the Respondent. [37] Based on the aforementioned reasons, the Respondent had failed to rebut the presumption that it is unable to pay its debts. Hence, prayers (10(i) and (ii)), of Enclosure 1 is allowed with costs of RM5000/- to the Petitioner. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 13th day of April, 2015. For the Petitioner - Messrs Affendi Zahari Mr. Ahmad Amir bin Mahmood For the Respondent - Tetuan Prasad Abraham & Associates Ms. Veronica Dominic 1

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24-992-09/2014

PLAINTIF SHALIMAR MALAY PLC DEFENDAN MAJLIS DAERAH KUALA SELANGOR

13/03/2015

YA DATUK AZIMAH BINTI OMAR

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. 24-992-09/2014 ANTARA SHALIMAR MALAY PLC ... PERAYU DAN MAJLIS DAERAH KUALA SELANGOR ... RESPONDEN GROUNDS OF JUDGMENT [1] This originating summons (enclosure 1) is an appeal filed by a company known as Shalimar Malay PLC under Section 145 (1) of the Local Government Act 1976 (“Act”). The Appellant which was formerly known as The Shalimar (Malay) Estate Company Limited is a company incorporated under the Companies Act 1957. It owns and operates a palm oil estate within the District of Kuala Selangor which is known as the Shalimar Estate (“estate”). [2] The estate consists of 17 different lots. Those of which are Lots no. 27, 441, 442, 443, 445, 446, 451, 452, 453, 454, 455, 1296, 1297, 1298, 1299, 1300, and 1301 (“Properties”) with lot 27 being the majority of the estate bearing 85% of the total of the estate covering 600 acres of land (“Lot 27”). [3] The Respondent in this present case is the District Council of Kuala Selangor or Majlis Daerah Kuala Selangor having jurisdiction over properties and lands within the District of Kuala Selangor. [4] The appellant in this case being dissatisfied with the Respondent’s decision and demand for outstanding assessment rates amounting RM 87,940.83 which was revised vide Section 144 of the Act when the Respondent had amended the valuation list regarding the Appellant’s properties after hearing of the Appellant’s objection on 10.6.2014. The Respondent has decided to dismiss the Appellant’s objection against the revised assessment rate. [5] The Respondent’s amendment to the valuation list was made in view of the Government of Selangor Gazette dated 16.3.2009 which had added new boundaries to the District of Kuala Selangor (within the Respondent’s jurisdiction) which is appended together with plan no. 1414. (see Exhibit SJ-5, enclosure 4). The amendment of the boundaries had in turn, added Lot 27 within the jurisdiction of the Respondent and this, the Respondent sought to collect rates from the Appellant in accordance with the amended boundaries set by the gazette. [6] It must be noted from the outset that the propriety of the Respondent’s authority in according to the gazette and including Lot 27 in the new amended valuation list is not an issue in contention. The contention of the Appellant is on the propriety of the annual/assessment rate which was imposed against the Appellant’s property. [7] The Respondent then had issued a Notice of Amendment of Valuation List dated 29.4.2009 (to include Lot 27) to the Appellant under Section 144 of the Act. (See exhibit S-3, enclosure 2) [8] In response to the Notice, the Appellant through its Management Agent, Agro Harapan Lestari Sdn Bhd (“Agent”) had issued a letter objecting (“1st objection”) the execution of the revised annual value and assessment to the Respondent dated 18.5.2009. (See exhibit S-4, enclosure 2) [9] In reply to the 1st objection, the Respondent considered the objection and accordingly reduced the annual value from RM1,436,900.00 to RM1,005,840.00 and the annual assessment rate was reduced from RM43,107.00 to RM30,175.20 on Lot 27. [10] Still dissatisfied with the reduction, the Appellant issued a further objection (“2nd objection”) through its letter dated 27.8.2009. The Appellant prayed for either a waiver of annual assessment or further reduction of the annual value and/or assessment rate. (See exhibit S-6, enclosure 2) [11] Thereafter, the Respondent had issued similar notices of the revised annual value and/or assessment rates regarding the Appellant’s other 16 Lots besides Lot 27 on 6.10.2009. (See exhibit S-7, enclosure 2) [12] Subsequent to the 2nd Objection, a meeting (“1st Meeting”) was called between the Malaysian Palm Oil Association (“MPOA”), the Appellant and the Respondent at the Respondent’s office on 26.2.2013. A minute of the meeting was prepared and was issued by the Respondent which was given to the Appellant. (See exhibit S-8, enclosure 2). A plain reading of the minutes of the 1st Meeting would reveal that the main purpose of the 1st meeting is to allow the opportunity for estate owners alike the Appellant (inclusive) to air their objections and/or grievances regarding the revised annual value and/or assessment rate. At no point in time that this particular meeting was intended to conjure a final decision on any of the issues raised in the meeting. [13] The issues raised were concluded with either for a further action to be carried out by a party “tindakan” or for the sake of announcement, explanation or information “makluman”. There was nothing conclusive in the 1st meeting after all of the complaints (inclusive of Respondent’s complaints) were heard. Even the tone of the Appellant’s Affidavit in support (enclosure 2) indicates that no decision was made: (Para 11(d)(ii), page 7, enclosure 2): “…bahawa nilai tahunan tidak sepatutnya didasarkan nilai pasaran terbuka kerana tanah-tanah ini bukannya tanah kosong dan merupakan tanah pertanian. Bantahan ini dipersetujui untuk dipertimbangkan oleh Responden dan hal ini akan dirujuk kepada Kamar Penasihat Undang-Undang Negeri.” (Para 11(d)(iii), page 7, enclosure 2): “Mesyuarat tersebut memutuskan bahawa MPOA membuat susulan kepada keputusan dari Kementerian-kementerian tersebut bagi satu keputusan berkenaan pengenaan kadar tahunan/taksiran tahunan keatas tanah-tanah ladang.” [14] Subsequent to the 1st meeting, the Respondent had issued a demand against the Appellant vide their letter dated 18.4.2014 for outstanding assessment rates on the Appellant’s properties. (See Exhibit S-9, enclosure 2) [15] In response thereto, the Appellant through its agent’s letter dated 16.5.2014 had informed of their objection (2nd objection) to the assessment rates and also that the matter was still pending a hearing date. (See exhibit S-10, enclosure 2) [16] In cognizance of the 2nd objection by the Appellant, the Respondent had invited the Appellant for a further meeting (2nd meeting) set on 10.6.2014 vide the Respondent’s notice dated 4.6.2014 to hear the Appellant’s objection. (See exhibit S-11, enclosure 2) [17] Briefly at this juncture, one of the Appellant’s contention on this notice was that the notice was allegedly only received by the Appellant on 10.6.2014 (same date of the 2nd meeting) rendering them to be unable to attend the hearing. Thus, allegedly the Appellant’s right to be heard under section 142 of the Act had been deprived. This contention would further be addressed later in this judgment for a full discourse on the evidence adduced into court by the parties. [18] However, it is pertinent to note that even at this juncture, the Appellant had contradicted itself on the issue of attendance at the 2nd meeting. It was averred in the Appellant’s own affidavit that one, Mr. Ravidranath had already attended the 2nd meeting on their behalf (see para 14(c) of enclosure 2): “(c) namun, seorang pengarah dari MPOA (iaitu En. Ravidranath G. Menon) telah hadir diri dan pengarah tersebut telah mewakili pemilik-pemilik ladang-ladang pokok kelapa sawit termasuk Perayu pada pendengaran bantahan pada 10.6.2014”(emphasis added) [19] The complaints (inclusive of the Appellant’s complaints) were addressed again on the 2nd meeting of which the minutes of the meeting was prepared and issued to all parties who attended the 2nd meeting (inclusive of the Appellant vide Mr Ravidranath). (See exhibit SJ-3, enclosure 4). It is the Respondent’s averment that there were no discussions or any conclusions within the 2nd meeting to contemplate for another further date for a hearing and/or meeting as everything was already concluded. [20] However, the Appellant had issued a letter dated 7.7.2009 (3rd Objection) to the Respondent claiming that they were deprived as plantation owners of the rights to be heard and that the 2nd meeting was only focused on the grievances of house owners and further requested for another hearing date. [21] Subsequent to the Appellant’s 3rd objection, the Respondent have issued a letter dated 18.8.2014 informing of the Respondent’s decision after the 2nd meeting was concluded. (See exhibit S-1, enclosure 2). The decisions made were that: (a) the objection hearing in relation to the holdings of the Appellant (that is the said Lots) was heard on 10.6.2014; (b) the Council Meeting held on 25.6.2014 decided not to consider the application of the Appellant for an exemption of the assessment as the Local Authority with the approval of the State Authority was empowered to impose the rate pursuant to Section 127 of the said Act; (c) the annual value of the said Lots has been amended from 10% to 5% of the open market value whereas the rate imposed pursuant to Section 130 of the said Act has been amended from 3% to 2%; and (d) the Appellant could appeal against the decision of the Respondent pursuant to Section 145 of the Act. [22] It was against the above decision of the Respondent that the Appellant filed their appeal before this court. Three grounds of appeal were raised by the Appellant, namely: I. The Appellant was denied of its rights to be heard before the Respondent to air their objections on the revised Valuation List and the annual value and/or assessment rate on the Appellant’s properties. II. The Respondent does not have the right to impose rates and on the properties considering the fact that the Respondent does not render services to the Appellant. III. The annual value of the properties cannot be based on the open market value of the properties. [23] This court is also mindful that besides the above grounds of appeal, in its affidavit the Appellant had also contended that there was an unfairness of the services rendered to its estate comparatively to Sime Darby’s estates. [24] Now, the issue on the method of assessment, services rendered by the Respondent and the alleged unfairness are to the Court’s view the substantive issue within this dispute while the remainder issue on the rights to be heard is verily a technical issue on the proper procedure of objections and appeals afforded under Sections 142, 144 and 145 of the Act. [25] Thus, before delving into the substantive portion of the dispute this Court shall first deal with the issue on the Appellant’s right to be heard. Ground I : Was the Appellant’s rights to be heard impeded by the Respondent? [26] To recap, the Appellant’s contention on this issue is as follows: (a) The Appellants were deprived of their rights to be heard as they were unable to attend to the 2nd Meeting on 10.6.2014 due to the short notice by the Respondent. (b) The opportunity to have their objections heard is afforded (in the mandatory) under Section 142 (2) of the Act which reads: “All objections shall be enquired into and the persons making them shall at such enquiry be allowed on opportunity of being heard either in person or by an authorised agent” [27] The Court shall now deal with this complaint of deprivation in two separate parts. That being the conduct of the complaints by the Respondent before the 2nd meeting on 10.6.2014 and the general conduct of the Respondent in dealing with the objections. [28] This Court acknowledges the mandatory provision set forth under section 142(2) of the Act with regard to inquisition of all objections and opportunity to be heard. Section 142(2) clearly provides that all objections shall be enquired and in respect of the Appellant’s objection, the Appellant or its agent shall be given the opportunity to be heard at the enquiry. However, this Court had earlier mentioned that from the evidence before the Court, there was no basis in the Appellant’s contention that it was deprived of its right to be heard. Close scrutiny of the evidences reflect otherwise: i. the Conduct of the 2nd Meeting on 10.6.2014 [29] The Appellant in its desperate (albeit fallible) attempt to prove the alleged deprivation had contended that they were unable to attend the 2nd Meeting due to the fact that they have only received the Notice for the 2nd meeting dated 4.6.2014 on the day of meeting itself that is 10.6.2014. Now, against this contention, the Court has scrutinised and considered evidences and even absence of evidences which goes against the Appellant in this regard. At multiple levels of the Appellant’s own evidence, the Appellants have contradicted themselves against their own contention. ii. Appellant’s letter dated 7.7.2014 signed its Director, Rizan Jiffrey (exhibit S-12, enclosure 2) admitted to being informed of the meeting [30] It is clear that the Appellants are employing tactics in a desperate attempt to raise any probable issues to defeat the decision by the Respondent. One such attempt is in their contention on the notice for the 2nd meeting. The appellant had even referred to the notice dated 4.6.2014 without much objection to the propriety of the notice. “We refer to our letter of May 16, 2014 and to the notification dated June 4, 2014 from your good office informing us that the meeting on the hearing of objections would be held on June 10, 2014” [31] In this 7th July’s letter, the Appellants themselves had admitted to be informed of the hearing on 10.6.2014 [32] Furthermore, the only ground contended in the Appellant’s letter was that the meeting was focused to the grievances of the house-owners. Never at any point in time that the Appellant contended anything on the receipt of the notice calling for the 2nd meeting. It was never raised. [33] If indeed the Appellant was short-served with the notice, the Appellant should have raised the issue in their letter. Instead the Appellant have admitted in total opposite of their contention; that they were informed of the 2nd meeting scheduled on 10.6.2014. iii. The Pos Eskpres search records adduced by the Respondent (exhibit SJ- 6, enclosure 9) [34] The Court is also mindful that the Respondent had indeed exhibited a supposed proof of fax transmission that the Respondent had faxed the notice to the Appellant as early as 5.6.2014. However, the Court does not intend to consider this piece of evidence as the exhibited proof is not a transmission report but merely an internal record of transmission of the Respondent. Nevertheless, this does not at all deter the judgment of this Court as there are other compelling evidences which proves that sufficient notice was given to the Appellant (inclusive of the admission discussed earlier above). iv. Online search by the Respondent [35] The Respondent vide its averment in enclosure 9 (Afidavit Jawapan Responden (2)) had stated that the Respondent had conducted an online search on the delivery status of the notice of invitation which found that the notice was successfully delivered to the Appellant on 9.6.2014. (See exhibit SJ-6, enclosure 9). [36] It is evidently clear that at the very least, or latest, the Respondent have received the notice one day before the date of the 2nd meeting. And this seems to be verily more coherent and probable considering the fact that the Appellant themselves had averred and admitted to send a representative to attend the 2nd meeting on their behalf (this would be discussed further later). [37] The Respondent exhibited the proof of postage “BORANG PENGHANTARAN POS EKSPRES” for the delivery with the reference number of “Bil (4)dlm.MDKS E/503/01”. [38] The above reference number corresponds with the reference number of the notice dated 4.6.2014 notifying the Appellant of the 2nd meeting. Furthermore in the same proof of postage, the registration number for that delivery is “LE11 769 323 8MY”. To which, the above registration number corresponds with the online search which was conducted and exhibited in enclosure 9 of the Respondent. The search result reads: “Tracking Shipments Detail result for Parcel No : LE117693238MY Date Time Process Office 09-Jun-2014 10:32:20 Delivered PPL KUALA LUMPUR [39] It is abundantly clear that the Appellants indeed received the notice at least a day before the 2nd meeting was heard and definitely not on the day of the meeting itself. The evidence clearly goes against the Appellant’s contention. v. The Appellant’s own Affidavit admitted that the Appellant managed to attend the 2nd Meeting on 10.6.2014 [40] This Court must also emphasise here that the Appellant’s contention is seemingly at odds with its own ground of appeal. It is verily evident from the ensuing discourse herein that the averments of the Appellant are baffling, incoherent, inconsistent and in total clash with each other and verily convoluted. [41] In one breath, the Appellant claims that they are deprived of the rights to be heard before the Respondent as they were unable to attend the 2nd Meeting which was held on 10.6.2014 (due to the fact that the notice was short-served which the Court disagrees above). However, in a multitude of aspects of its evidence, the Appellant itself admitted that they were able to attend the 2nd Meeting by way of representation. This is evident in the Appellant’s own letters and even the Appellant’s own Affidavit in Support of enclosure 1 namely enclosure 2. [42] While also in another breath, suddenly the Appellant by way of their own Affidavit (enclosure 7) affirmed by Mr Ravindranath a/l Gangandharan Menon, denied the representation which was averred by the Appellant’s own earlier enclosure 2. [43] This Court shall address these contradictions separately: i. 1st Contradiction – the Appellant’s own enclosure 2 (affidavit in support) [44] Against the Appellant’s submission on not being able to attend the 2nd Meeting, it is blatantly clear that the Appellant had derailed itself from this contention when the Appellant itself admitted in enclosure 2 that they were able to get a representative to attend the 2nd Meeting on their behalf. This is clearly averred by the Appellant at paragraph 14(c) of enclosure 2, the Affidavit in Support: “(c)…, a director from the MPOA (namely, Mr Ravindranath G. Menon) was present and this director represented the owners of palm oil plantations including the Appellant at the objection hearing on 10.6.2014” [45] It is plain and obvious that the interest of the Appellant was already represented by Mr Ravindranath (MPAO Director) during the meeting. The Appellant had acknowledged such representation by its own volition. It would be absurd that the Appellant now intends to go against its own averment. It is clear they were able to attend this meeting. Their own Affidavit averred so. ii. 2nd Contradiction – the Appellant’s letter dated 7.7.2014 [46] Even the Appellant’s letter 7.7.2014 (exhibit S-12, enclosure 2) admitted in para 2 that the MPOA Director had attended the 2nd meeting on their behalf. The letter reads at para 2: “2. We also note that a Director from the Malaysian Palm Oil Association (“MPOA”) was present at the objection hearing on June 10, 2014. The Director of the MPOA represented the owners of palm oil plantations in the area including ourselves.” [47] Hence, it is this court’s judgment that from the documentary evidences ventilated earlier, it is crystal clear without a single iota of doubt that the Appellants indeed managed to attend the 2nd Meeting on 10.6.2014 to have their objections heard vide their representative, the MPOA Director. In this case, when the Appellant had voiced out its objections on the rates imposed and objections were heard, the annual value and the rates were then revised, then, it could not be said here that there is deprivation of rights to be heard. The voice of the Appellant was validly echoed before the Respondent, giving them the statutory opportunity to have their grievances aired and heard. [48] There were nothing raised by the Appellant in this letter to the effect that the Appellant raised the issue of not being represented and/or not being able to attend the 2nd Meeting. None at all. In fact, the Appellant took the total opposite standing that they managed to attend the meeting by having been represented by the MPOA Director. iii. 3rd Contradiction – MPOA Director’s Affidavit for the Respondent (Enclosure 7) [49] Now, against the admission that the Appellant was represented, out of the blue the Affidavit affirmed by the MPOA Director sought to negative the Appellant’s contention on representation during the 2nd Meeting. The Appellant is at odds with their own averments in their evidence. [50] The averment in enclosure 7 at para 7 sought to defeat the notion of representation set forth by the Appellant itself: “I am aware that the Respondent fixed an objection hearing on 10.6.2014 on the proposed imposition of annual rates/assessments on certain oil palm plantation lands belonging to KL-Kepong Country Homes Sdn Bhd and Kuala Lumpur Kepong Berhad. I accompanied the representatives of these 2 plantation owners to the office of the Respondent on 10.6.2014. It must be mentioned that before I went for the hearing on 10.6.2014, I had also made a telephone enquiry with Mr. Ravindran Palpanathan, Manager of Shalimar Estate whether his estate has also been called for a hearing on the same and he replied in the negative” [51] It is abundantly clear that the Appellant itself is unsure of their stance on the representation. Such contradiction warrants this Court to question the integrity of the Appellant’s case and the veracity of the Appellant’s evidence. vi. General conduct regarding the Appellant’s objections [52] Notwithstanding the finding above that indeed the Appellant was not at all deprived of their rights to be heard, it is already abundantly clear that besides the conduct of the 2nd Meeting, the objections were appropriately heard and considered by the Respondent. [53] As discussed earlier, the Appellant had written to object the revised valuation list and rates for multiple times. The Respondent had afforded the Appellant its right to be heard not only in the 2nd Meeting but in also in other instances revolving the Appellant’s objections. (a) 1st reduction in consideration of the Appellant’s 1st objection of 18.5.2009 [54] Upon receiving the Appellant’s 1st objection, the Respondent had in fact taken their objection into consideration and substantially reduce the annual valuation by a whopping RM431,060.00 while the assessment was reduced by a long-shot of RM12,931.80. (b) 1st Meeting hosted by the Respondent to cater to the objections of the Appellant and other plantation owners [55] In cognizance of the Appellant’s further objection against the reduced annual value and assessment above, the Respondent again, afforded the Appellant with further opportunity to be heard and voice out their further objection in this 1st Meeting. (c) Conclusion and decision after the 2nd Meeting dated 18.8.2014 [56] And in fact, after affording the Appellant their rights to be heard and voice out their objections by attending the 2nd Meeting. And upon this 2nd Meeting the decision of the Respondent was to give a further reduction from the initial prior reduction. The annual value of the said Lots has been amended from 10% to 5% of the open market value whereas the rate imposed pursuant to Section 130 of the said Act has been amended from 3% to 2%. [57] At every instance the Appellant sought to make an objection, the Respondents has done their level best to afford the Appellant its rights to be heard in holding meetings upon meetings and in fact had made reductions upon the objections made. [58] It is apparently clear, inclusive of the conduct 2nd Meeting, that the Respondent for numerous times has afforded the rights to be heard to the Appellant. The Respondent had referred to the case of Majlis Daerah Dungun v Tenaga Nasional Bhd [2006] 2 CLJ 1078 which decided the following: The respondent was aggrieved by the amendment of the valuation list…the respondent had to make an objection in writing to the appellant under s.144(3) of the Act. The Appellant had to “hear” the objection and make a decision as to whether the respondent’s objection was justifiable. The “hearing” before the appellant would be the proper forum where the respondent can voice its grievances” [59] Indeed, the Respondent had afforded and furnished the Appellant the proper forum (1st and 2nd Meetings) to hear the grievances of the Appellant before the Respondent itself. Thus, it is the Court’s finding herein that there was never any impediment against the Appellant’s rights to be heard. [60] Now, on the contention that the 2nd Meeting was conducted only to cater to the grievances of the house owners which was raised in the Appellant’s letter dated 7.7.2014 and was later totally abandoned in the Appellant’s submission. Simply put, the only ground that the Appellant called for a further meeting after the 2nd meeting was not because of the alleged short-notice or the inability to attend, but instead on the tone the 2nd Meeting took place. For the purpose of completeness, this Court shall briefly allude to this contention. [61] Against this contention, the minutes of the meeting clearly indicate that the objections by the plantation owners were dealt with and discussed. There is a dedicated section in the minutes of the 2nd Meeting (exhibit SJ-3, enclosure 4) that deals with objections of plantation owners alike: “4.0 SESSI MENDENGAR BANTAHAN/SYOR-SYOR PERTIMBANGAN 4.1 Terdapat 47 pemilik yang membuat bantahan pada kali ini melibatkan…dan pemilik tanah ladang estet.” [62] And the summary in paragraphs 4.3 (i) until (v) clearly includes the grievances which were forwarded by the Plantation owners themselves and not only the house-owners. The Respondent would not have invited all of these plantation owners (Appellant included) to the 2nd meeting if they had not intend to address the plantation owners’ grievances. [63] Thus, in cognizance of the above, it is this Court’s finding that the Appellant’s rights to be heard have never at any point in time been impeded by the Respondent. [64] The Appellant had also questioned the legitimacy of the Respondent’s authority to impose rates upon the amended valuation list in including Lot 27. The Appellant in other words is questioning whether the Respondent has jurisdiction to make amendments on the valuation list to include lot 27 and impose rates. This is another issue raised by the Appellant in their Affidavit but was abandoned in their submission. On this issue, suffice to say that this Court is in total agreement with the Respondent’s submission on the authority of the Respondent to impose rates and amend the valuation list in view of the gazette of the state of Selangor (exhibit SJ-5, enclosure 5) which broadens the Respondent’s jurisdiction to include Lot 27. [65] The gazette amending the boundaries of the Respondent was a valid and lawful gazette issued by the Government of Selangor under Section 4(3) of the Act that confers power to state authority (in this case the Government of the State of Selangor) to alter the boundaries of any local authorities. The Authority of the Respondent to impose rates on lands within its jurisdiction emanates from Section 127 of the Act. And thus, the authority of the Respondent to amend the valuation list to cater to the gazette’s inclusion of Lot 27 stems from Section 144(1)(f) of the Act which stipulates that: “(f) any change to the rateable holding effected by any law relating to planning as a result of which the value of the holding has been increased or decreased, the Valuation Officer may at any time amend the Valuation List accordingly and rates shall be payable in respect of the holding in question in accordance with the Valuation List so amended” [66] It is sufficiently clear that the amendment of the Valuation List and the rates were made in accordance of the Government of Selangor’s gazette to include Lot 27 in the Respondent’s boundaries and/or jurisdiction. Thus, the Respondent is within its rights and jurisdiction to make such amendment to the Valuation List and the rates. Ground II : The Respondent does not have the right to impose rates and on the properties considering the fact that the Respondent does not render services to the Appellant. [67] Now, it is the contention of the Appellant that direct services from the Respondent is a condition precedent or a requisite to be fulfilled before the Respondent may have the rights to impose rates. It must be noted here that the Appellant’s contention is not supported by any direct authority be it any statutory provision or decided precedents. [68] What was instead put forth by the Appellant was their own interpretation of the different sections of the Act and also the Interpretation Act which was stringed together (to their own benefit) to prove that it is incumbent upon the Respondent to provide services before they have the rights to impose rates. Hence, it must be appreciated clearly that this preposition is devoid of any direct authorities. [69] However, it also must be noted that this particular preposition coined was made specific to the alleged duty of the Respondent to provide waste/rubbish collection services within the private properties of the Appellant. This is how the Appellant sought to conjure this preposition: [70] Section 127 of the Act states that the local authority (the Respondent in this case) may with the approval of the State Authority to impose rates for the purposes of this Act. [71] The Appellant continued to zoom in and define what is this “purpose of this act”. It is evident here that what was intended to be employed by the Appellant was to adopt the purposive approach of interpreting statues. However, the Appellant sought to define this “purpose” in reference to Section 72 of the Act which instead enumerates the powers of the Local authority. [72] Section 72 (1) of the Act only enumerates the authority of the Respondent to maintain and carry out sanitary services. Not at any point in time it stipulates that it is incumbent that the Respondent to do so. The sentence used is: “(1) A local authority shall have power to do all or any of the following things, namely…” [73] Not at any point in time that the wording of section 72 is in the mandatory meaning that the Respondent as Local Authority is mandatorily imposed to carry out such duty to earn the rights to claim rates. The words used in section 72 is clearly “shall have power to do” and not at any time “shall do” all or any of the following things. [74] The Appellant had also referred to Section 17A of the Interpretation Acts 1948 and 1967 in that in the interpretation of an Act, the interpretation which would promote the purpose of an Act shall be preferred. However, as had been made clear in the finding above, Section 72 of the Act is a provision defines the power which the Local Authority possesses and not the particularly the purpose of the Act. [75] In fact, the more probable interpretation of the above provision, if at all we look to the purpose of this Act, is that section 72 of the Act is the provision which empowers the Local Authority to provide services. It makes more legal sense that the Local Authority is empowered also under Section 127 of the Act to collect revenues (in the form of rates) in order for the Local Authority to be able to render such services which it is empowered to perform. [76] It is beyond any logic or reason that the Appellant saw it fit to interpret the whole purpose of the Act in reverse. In other words, there must be the means to perform before the Local Authority can perform. This, indeed is the more preferred interpretation as it indeed serves to promote the purpose of the Act (that is to allow the Local Authority to garner the means to perform the duties they are empowered to perform). [77] Now, the Respondent had in fact given a valuable reported case as a support to the Court’s preferred interpretation above. It is the case of Majlis Daerah Dungun v Tenaga Nasional Bhd [2006] 4 MLJ 731. Now the Court shall reproduce the relevant portion of the Court of Appeal’s decision in this said case and will proceed to categorically apply its relevance in the present case: “The respondent's liability as a ratepayer is not a private debt but a public obligation. The appellant has to perform the duties and exercise the powers specified in the Act. As a local authority, it would require revenue to perform its duties. Section 63 of the Act provides it shall have the general control and care of all places within the local authority area which have been or shall be at any time set apart and vested in the appellant for the use of the public or to which the public shall at any time have or have acquired a common right. It may erect and maintain in any open public place buildings for public purposes. Section 72 of the Act provides certain powers to a local authority in relation to sanitation, the erection and managing of markets, lodging houses, stalls, public lavatories and abattoirs. It has also the power to safeguard and promote the public health, for example, to take all necessary and reasonably practical measures for preventing the occurrence of any infectious, communicable or preventable diseases. To carry out its duties the appellant requires revenue. Section 39 of the Act states that the revenue of a local authority shall consist of all taxes, rates, rents, licenses, fees, dues and other sums of charges payable to the local authority by virtue of the provisions of the Act or any other written law. Thus, one of the principal source of revenue for the appellant, like any other local authority, is rates.” (a) Paying rates is a Statutory Duty [78] From the passage of the Court of Appeal’s dicta above, in reference to the general control and care of the Local Authority of its jurisdiction under Section 63, the powers of the Local Authority under Section 72 and the fact that the source of revenue for the Local Authority to perform its power is stated under Section 39, the Court is of the considered view that the obligation to pay rates to enable the Local Authority to perform its powers for the public’s benefit at large (and not any private benefit) is a statutory obligation. This is coherent with the power of the Local Authority under Section 127 of the Act to impose rates “as is deemed necessary”. [79] It is this Court’s judgment that when the Appellant’s properties are within the jurisdiction of the Powers of the Respondent, and to enable the Respondent to perform its powers to render services to the public at large, the Appellant is statutorily obligated to pay the rates as imposed by the Respondent notwithstanding any contention on a supposed direct service to be rendered to the Appellant. (b) The Respondent as the Local Authority is not obligated to render direct services to the Appellant especially not within the properties of the Appellant [80] It is sufficiently compelling from the dicta above that “the respondent's liability as a ratepayer is not a private debt but a public obligation” to infer that there is no duty owed by the Respondent in the present case to render services directly and personally to the Appellant in its properties. The power of the Local Authority is to be exercised for the benefit of the public at large and not specific to the benefit of any private interest and/or interests. And indeed, the Respondent does provide various services throughout the areas surrounding the Appellant’s properties, particularly the waste/rubbish disposal services and the public bus stops within the District of Kuala Selangor. (See exhibit SJ-4, enclosure 4) [81] The Appellant had contended that the bus stop services and the waste/rubbish disposal services are more focused to the benefit of the house-owners rather than the Appellant’s estate’s benefit owing to the alleged fact that the bus stops or areas for waste/rubbish disposal is closer to the housing areas. Thus, forms the core of their contention of absence of direct services. With due respect, this Court entirely disagrees with the Appellant’s contention. There are no evidences at all afforded by the Appellant in any of its affidavits that indeed the Respondent had provided these two services mainly for the benefit of the residence within the surrounding area. There is no evidence at all adduced by the Appellant that the Appellant or any of its employees, have never benefited from the array of bus stops and sanitation provided by the Respondent. It is more probable than not that the Appellant or any of its employees have utilized these services be it in sanitation or purposes of logistics and transportation. [82] In fact, it is abundantly more obvious that the Appellant had indeed directly benefited from the services rendered by the Respondent. The public at large (inclusive of the Appellant) benefit from the bus stops as a form of public transportation. Even assuming that every single one of the workers or members of the Appellant’s estate commutes by their own vehicle (which there is no proof of and verily unlikely to be the case), it does not deter the fact that they benefit from the public transportation being a viable alternative to ease out traffic to promote better flow and experience of transportation and logistics to and fro within the jurisdiction of the Respondent. Even if the Appellant itself or any of its members are in their own private vehicle driving around the roads under the jurisdiction of the Respondent, the Appellant has indeed directly benefited from the Respondent’s services. [83] With regards to the sanitation services, the public at large (inclusive of the Appellant) directly benefits from the waste management which promotes a healthier environment to dwell and work (not necessarily in the Appellant’s estate alone but the public areas which are under the Respondent’s jurisdiction). [84] This Court reiterates that the duty to pay assessment rates is not a private debt but a public obligation. The rates are paid for the betterment and benefit of the public at large (which is not exclusive to the Appellant’s benefit alone). Furthermore, the Respondent have already provided these services for the benefit of the public at large. Whether or not the Respondent chooses by its own volition to reap benefit from it, is irrelevant. The services are there for the utility of the public at large (inclusive of the Appellant). However, the Appellant cannot selfishly eschew, avoid and/or abstain from their public obligation to pay the rates which are valuable to public at large to enable the Respondent as the Local Authority to provide their services to the public’s benefit at large merely because it may not or it has chosen not to benefit from it. Again, there are no evidences afforded by the Appellant that it had not benefited from these services. The averment that the closest bus stop to the estate being 1.5 kilometers away from the estate is firstly, no excuse for the Appellant to refuse to pay rates to enable the Respondent to maintain these services for the public at large, and secondly, is not a ground to deem that the bus stop is intended for the main usage of house-owners. Similarly so in regards to the waste/rubbish disposal services. There is no proof that it was provided for only for the benefit of the house-owners and there is no proof that the Appellant never benefited from it. [85] Ultimately, the propriety of the imposition of rates is not hinged on the benefit afforded and given to any specific taxpayer and/or rate payer, but is hinged on the benefit afforded to the public at large. Again, it is not a private debt as accurately and correctly put in the dicta of the Court of Appeal in the Majlis Daerah Dungun case. [86] Even if assuming that the Court were to agree with the Appellant, it is more probable than not that the Appellant itself has benefitted from the services rendered by the Respondent. And it is more glaring and obvious that the Appellant has not put forth a single inkling of evidence to prove that it has not benefited at all from the services. [87] Thus, in cognizance of the above, it is this Court’s finding that firstly, the Appellant may not eschew itself from its public and statutory obligation to pay rates for the benefit of the public at large. Secondly, it is not incumbent upon the Respondent to render personal and direct services within the Appellant’s properties so as to obtain the rights to impose rates. It suffices that the Respondent already renders the services that they are empowered to do for the benefit of the public at large. The rates are paid to enable the Respondent perform the powers which are conferred upon it as the Local Authority for the benefit of the public at large. Thirdly, there are no evidences at all that the Appellant has never benefited from the services rendered by the Appellant. Fourthly, it is more probable than not that the Appellant has indeed benefited from the services rendered by the Respondent both directly and indirectly. [89] There is also another contention raised by the Appellant and this is with regards to the alleged unfair treatment of ratepayers. It was averred by the MPOA Director in his affidavit (enclosure7) that the Respondent had allegedly been unfair in rendering services to 6 plantations owned by Sime Darby in that the Respondent had provided waste/rubbish disposal services directly within Sime Darby-owned lots and thereby the Respondent had been unfair to the Appellant as a ratepayer if compared to Sime Darby. The Plaintiff sought to rely on the cases of Arsenal Football Club Ltd v Ende [1979] AC 1, Inland Revenue Comrs v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 AER 93 and Prudential Assurance Malaysia Bhd v Kerajaan Malaysia [2003] 6 CLJ 28 [90] However, this Court is of the view that the averment on unfair rendering of services is baseless without evidence and is a hearsay. There was no prove to support the averment and nothing was exhibited as evidence. It is a bare allegation devoid of any proof. Not only that it is baseless without evidence, the averment is a hearsay averment as it intends to put words into the mouth of the Respondent. The averment at para 8(d)(ii) of enclosure 7 reads: “(ii) Responden juga telah memberi perkhidmatan pemungutan sampah untuk 6 ladang-ladang tersebut Sime Darby itu. [91] Clearly identifiable from the above averment is that the statement averred was not the MPOA Director’s own statement but the alleged statement which was supposedly uttered by the Respondent during the 2nd Meeting on 10.6.2014. Clearly, this is hearsay evidence. It is trite law that the Court can never admit and consider hearsay evidences unless it falls within the specific exceptions under the Evidence Act. The Appellant never submitted on these exceptions and it very unlikely that this case would fall within any of the exceptions. [92] Now, there are contemporaneous documents which are derivative from the 2nd Meeting held. However, it is obvious from a plain reading of the minutes of the 2nd Meeting that the averment on the Respondent rendering direct services within Sime Darby’s plantation was nowhere recorded within the minutes. There was never any mention or complaint involving Sime Darby’s plantations. In fact there was never any mention of Sime Darby within the 2nd Meeting’s minutes. (See exhibit SJ-3, enclosure 4). [93] In fact, it was the averment of the MPOA Director himself that he admitted that the minutes of the 2nd Meeting does not contain or record of the Respondent’s alleged agreement to provide services within the lots of the plantation owners. Paragraph 9 of enclosure 7 reads: “Saya faham bahawa minit-minit mesyuarat Jawatankuasa Responden yang berkaitan untuk 10.6.2014…tidak mengandungi apa yang dipersetujui oleh Responden bahawa Responden akan ukur bangunan-bangunan di kedua-dua ladang tersebut dan memberi perkhidmatan-perkhidmatan…” [94] It does not strike any sense that the MPOA Director never saw it fit to at least inform, or communicate to the Respondent regarding the supposed incomplete minutes of the 2nd Meeting. Having in mind of the heavy sentiment and reliance of the Appellant on this issue involving Sime Darby, it is utterly strange and peculiar that never did anything to clarify or confirm the contents which are allegedly unrecorded. [95] Notwithstanding the authorities forwarded on the fair treatment to taxpayers, the circumstances and the evidence of this case clearly does not hold water. Even in the face of these authorities, the evidences (in the minutes of the 2nd Meeting and Enclosure 7), the absence of evidence, and the fact that the averment was a hearsay evidence, the Court is in a bind and is not able to draw any conclusion that there was any unfair treatment afforded against the Appellant. There were simply no evidences at all to prove such allegation. In absence of any proof of such unfairness, the Court cannot draw such inference of unfairness. Ground III: The annual value of the properties cannot be based on the open market value of the properties. [96] Now, coming to the last ground, the Appellant had contended that notwithstanding all of the above and the Respondent’s rights to impose rates, the Respondent may not calculate the annual value and assessment rate based on the open market value of the Appellant’s properties. [97] On this contention, the Appellant forwarded its arguments in two folds. Those in which are; it is wrongful as the Respondent had unlawfully relied unto proviso (c) of Section 2 of the Act and it is wrongful as the Respondent allegedly had employed a different manner of calculation over Sime Darby’s plantations. Does this case fall within proviso (c) of Section 2 of the Act? [98] It was submitted by the Appellant that the calculation that was applied by the Respondent (in using the open market value) falls squarely on Section 2 proviso (c). The counsel for the Appellant further submitted that section 2 defines “annual value” to mean the estimated gross annual rent at which the holding might reasonably be expected to let from year to year the landlord paying the expenses of repair, insurance, maintenance or upkeep and all public rates and taxes. Thus, generally annual value in other words is the reasonably expected gross rent payable in case the land was put to let. However, this definition is subject to certain provisos in which the Valuation Officer (in this case the Respondent) may depart from this general meaning of annual value. [99] And it is the Appellant’s case that the proviso relied upon by the Respondent is proviso (c) which reads: “(c) in the case of any land— (i) which is partially occupied or partially built upon; (ii) which is vacant, unoccupied or not built upon; (iii) with an incomplete building; or (iv) with a building which has been certified by the local authority to be abandoned or dilapidated or unfit for human habitation, the annual value shall be, in the case of subparagraph (i), either the annual value as hereinbefore defined or ten per centum of the open market value thereof at the absolute discretion of the Valuation Officer, and in the case of subparagraphs (ii), (iii) and (iv) the annual value shall be ten per centum of the open market value thereof as if, in relation to subparagraphs (iii) and (iv), it were vacant land with no buildings thereon and in all cases the local authority may, with the approval of the State Authority, reduce such percentages to a minimum of five per centum” (emphasis added) [100] The Appellant further argued that it was wrongful for the Respondent to have relied upon the proviso (c) as Lot 27 is an agricultural land planted with palm oil while other lots of the estate were built with ancillary facilities for running an oil palm estate, including a guard house, office, staff bungalow and workers quarters and others. Thus, it is the contention of the Appellant that the properties are fully occupied and was built upon and therefore, Lot 27 cannot fall within proviso (c) of Section 2. [101] To support its argument, the Appellant had referred to the Supreme Court’s decision in the case of Datuk Bandar Kuala Lumpur v Bukit Jalil Estates Sdn Bhd & Anor [1988] 1 CLJ (Rep) 25 in which the Supreme Court had decided that (with regards to a rubber estate land) since “…the respondent in that case has cultivated the lots and used them for rubber tapping with exclusive possession, the lots are fully occupied.” [102] The Appellant then continued that the same case of Bukit Jalil above also decided that since the Respondent’s (in that case) lot are all “agricultural land”, and “are completely occupied and not vacant, they do not come under proviso (c) irrespective of whether they are built upon, not built upon or partially built upon, and in respect of them the annual value should be estimated gross annual rent” [103] The Appellant further submits that the approach in the Bukit Jalil case above had been followed in another case of Ng Chin Siu & Sons Rubber Estate Sdn Bhd v Datuk Bandar, Kuala Lumpur [1994] 1 CLJ 283. [104] Thus, in reliance of these cases above, the Appellant contends that it is wrongful for the Respondent to rely upon proviso (c) and departing from the initial definition of gross annual rent enumerated in Section 2 of the Act. [105] From the outset with regards to this contention, it must be noted that this Court has no intention to challenge or depart from the precedents above. However, due to the circumstances and evidence of this present case, the Court does see it fit that the cases above must be distinguished from the present case. The reason being is this; the Respondent in actual fact had relied on proviso (d) of Section 2 of the Act and not proviso (c). Upon close scrutiny of the documentary evidence forwarded by the Parties, this court finds that it more probable than not that the Respondent is actually relying on proviso (d) of Section 2 of the Act. This is already made clear during the 1st Meeting held on 26.2.2013. It vividly clear from the minutes of the 1st Meeting on 26.2.2013 that the decision of the Respondent in making the assessment is not on the grounds that the land was partially occupied or partially built upon or was vacant. In actual fact in ascertaining the annual value of the properties, Puan Salinda (valuation officer) has made the evaluation on the presumption that the properties are vacant because of the difficulties to get sufficient information to be a benchmark to gauge or to evaluate the gross annual rent. [106] This court is of the view that the Appellant had somehow or rather misinterpreted the minutes of the 1st Meeting. The minutes recorded were that: “Puan Salinda binti Jamil, Jabatan Penilaian dan Pengurusan Harta memaklumkan bahawa kenaan cukai bagi ladang-ladang estet merujuk kepada peruntukan di bawah Seksyen 127 dan asas penilaian pula telah mengambilkira nilaian tanah kosong (iaitu mengandaikan bahawa tanah tersebut kosong tanpa sebarang binaan atau tanaman di atasnya kerana kesukaran untuk mendapatkan maklumat hasil keuntungan melalui aktiviti di atas tanah tersebut)…”(emphasis added) [107] With the minutes of the 1st Meeting (documentary evidence) the Respondent clearly had indeed relied on proviso (d) as it was largely difficult for the Respondent to estimate the gross annual rent, owing to the fact that the land was never let to any other persons and was personally worked by the Appellant. It is compelling that the Respondent would not have sufficient information to make this calculation of the estimated gross annual rent. Thus, in this instance, this case falls squarely on proviso (d) of Section 2 of the Act which reads: “(d) where in respect of any particular holding, in the opinion of the Valuation Officer, there is insufficient evidence to base a valuation of annual value upon, the Valuation Officer may apply such methods of valuation as in his opinion appears appropriate to arrive at the annual value;”( emphasis added) [108] These minutes were never disputed by the Appellant. As a matter of fact, the Respondent had mentioned during the 1st Meeting that it has faced “kesukaran mendapatkan maklumat” and with that position at hand, thus verily it falls squarely within the ambit of “insufficient evidence” under proviso (d) of Section 2 of the Act. [109] Therefore, it is the finding of this Court that Respondent clearly placed reliance on proviso (d) of Section 2 of the Act and not proviso (c). The Respondent had only presumed or “mengandaikan” that the land is in a vacant state and had not deemed that the land is indeed vacant. In actual fact, the decision of the Respondent is not dependent on the variable that the Appellant’s properties were occupied, or built or otherwise but is on the fact that they had insufficient information to gauge the gross annual rent. Hence, in these circumstances, it is within the authority of the Respondent, upon its opinion to apply any valuation method it sees appropriate. Has the Respondent used a different manner of evaluation on Sime Darby’s plantations compared to the Appellant’s estate? [110] It was first averred in the MPOA’s Director’s affidavit in enclosure 7 and was later submitted by the Appellant that the Respondent should afford the same method of calculation as had been allegedly employed upon Sime Darby’s plantations. It was averred at para 8(d)(i) that: “satu kaji ukuran (survey) telah dijalankan oleh jabatan Responden yang berkaitan pada “estate lines sites” 6 ladang-ladang Sime Darby Bhd dalam Daerah Kuala Selangor untuk menentukan nilai bangunan-bangunan yang didirikan di ladang-ladang berkenaan. Saya juga sedar bahawa Responden kemudiannya mengurangkan kadar tahunan/taksiran secara ketara ke atas 6 ladang-ladang Sime Darby tersebut.” [111] The Appellant repeatedly stated that the Respondent had agreed and should employ the same manner of calculation as it had allegedly applied on Sime Darby’s plantations. However, the line of evidences (even the Appellant’s own evidences) and also want of evidences seemingly defeat this contention. On this issue, this court poses this question. Are there any supporting or contemporaneous documents exhibited by the Appellant as proof of this different method of calculation alleged? [112] Firstly, the different method of calculation was raised by the MPOA’s Director in his affidavit Enclosure 7. To support his contention, the MPOA’s Director had never see it fit to exhibit anything to the effect of proving this contention. It is verily peculiar and questionable as to the manner in which the MPOA’s Director was able to know that such “survey” was conducted without having any documents to prove it. If indeed the MPOA’s Director knew of this survey and its decision and/or conclusion, it must have been that it would be within his possession such documents which he had derived his information from. If not, there would be an obvious and serious absence and want of evidence. The most natural conduct to prove such averment is to exhibit such ‘survey’ but the Appellant had failed to do so. Thus, in the absence of any proof, the averment is merely hearsay evidence. Secondly, the MPOA’s Director himself admitted that he did not have evidence to support his contention. It was in fact admitted in the same Affidavit that the minutes of the 2nd Meeting does not contain any mention of the survey regarding Sime Darby Bhd or the agreement that the Respondent would afford the same method of calculation to the Appellant. “Saya faham bahawa minit-minit mesyuarat Jawatankuasa Responden yang berkaitan untuk 10.6.2014…tidak mengandungi apa yang dipersetujui oleh Responden bahawa Responden akan ukur bangunan-bangunan di kedua-dua ladang tersebut dan memberi perkhidmatan-perkhidmatan…” Thirdly, the MPOA’s Director had also admitted that there is never any mention of this survey or method of calculation as well as the Respondent’s agreement to use the alleged method of calculation applied onto Sime Darby Bhd’s plantations. [113] Clearly, the minutes of the 1st meeting had only recorded that the “cadangan” or proposal (to only evaluate the buildings erected on the lands) was voiced out. However there was never any mention of Sime Darby’s survey or the Respondent’s agreement to use the calculation alleged. The minutes regarding this proposal reads: “3.1 Cadangan untuk membuat penilaian ke atas bangunan sahaja dan nilaian secara ‘token’ ke atas tanah” Tindakan: Jabatan Penilaian dan Pengurusan Harta, MDKS” There was never any concluded agreement that the Respondent ought to employ such method of calculation. In fact, it was admitted in the Appellant’s own submission that what was decided in the 1st meeting was that the Respondent would only “consider a proposal to just value the buildings on the estate lands”. (See para 5(d)(i), Submissions of Appellant) [114] In fact, this Court opines that from the admission and minutes of the 1st Meeting above, it is apparent that the Respondent had never intended to forego the evaluation of the inherent value of the land itself, to be calculated together with the value of the buildings on the estate lands. The proposal also includes the “token value” on the lands. [115] It would be too outreaching if the Court were to give meaning to the proposal to be implied with what the Appellant averred. There was no other evidence led to this effect. The Court cannot afford to draw such assumption. Furthermore, an evaluation must necessarily and logically include the inherent value of the land itself, and not just the occupation or buildings on the land. A land’s value is not measured merely on its structures or plantation. A vacant land might as well be more valuable comparatively to an occupied land or land occupied with agriculture owing to its location, facilities and services available in the surrounding. Even the minutes of the meeting does not correspond with the Appellant’s contention. The evaluation proposed is not merely on the building only but also inclusive of the value of the land itself. [116] It is apparent here even in the 1st Meeting itself (which was never disputed by the appellant) that the proposal does not forego the evaluation on the land itself. [117] In this regards, firstly, there are no evidences at all to prove that the Respondent had given a different method of calculation on the annual value/assessment to Sime Darby Bhd. Secondly, there are no evidences at all to prove that the Respondent had agreed to the proposal to evaluate only the buildings and plantations in the Appellant’s estate to get the annual value/assessment. In fact, the Court finds that the MPOA’s Director himself has admitted to this want of evidence supporting this contention. [118] In fact, the Respondent has been kind enough to base its calculation on the open market value of the Appellant’s properties in the year 1996, which definitely would be cheaper if compared to the value of the Properties on the current market value. Not only that the Respondent is within its rights to use the open market value as its basis of calculation, the annual value calculated is already to the advantage of the Appellant. [119] Therefore, this Court finds that the Respondent’s decision to base their calculation on the open market value of the Appellant’s estate is a valid method of calculation by the purview of proviso (d) of Section 2 of the Act. Furthermore, there was never any proof of any different method of calculation (to Sime Darby) and any agreement to apply that alleged method of calculation as was asserted by the Appellant. [120] Based on the aforementioned reasons, the Appellant’s appeal is dismissed with costs. On the issue of costs [121] Having heard the submission from both counsels for the Appellant and the Respondent, the Court hereby orders the Appellant to pay the Respondent RM8,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 13th March 2015 For the Appellant - Tetuan Christopher & Lee Ong Encik John Matthew For the Respondent - Tetuan Ibrahim & Fuaadah Encik Mohamed Ibrahim Puan Fazlin Ilani 46

Tika 2.6.0

24-992-09/2014

PLAINTIF SHALIMAR MALAY PLC DEFENDAN MAJLIS DAERAH KUALA SELANGOR

13/03/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5abd7a38-7429-4dee-92fd-6887e58d421b&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO. 24-992-09/2014 ANTARA SHALIMAR MALAY PLC ... PERAYU DAN MAJLIS DAERAH KUALA SELANGOR ... RESPONDEN GROUNDS OF JUDGMENT [1] This originating summons (enclosure 1) is an appeal filed by a company known as Shalimar Malay PLC under Section 145 (1) of the Local Government Act 1976 (“Act”). The Appellant which was formerly known as The Shalimar (Malay) Estate Company Limited is a company incorporated under the Companies Act 1957. It owns and operates a palm oil estate within the District of Kuala Selangor which is known as the Shalimar Estate (“estate”). [2] The estate consists of 17 different lots. Those of which are Lots no. 27, 441, 442, 443, 445, 446, 451, 452, 453, 454, 455, 1296, 1297, 1298, 1299, 1300, and 1301 (“Properties”) with lot 27 being the majority of the estate bearing 85% of the total of the estate covering 600 acres of land (“Lot 27”). [3] The Respondent in this present case is the District Council of Kuala Selangor or Majlis Daerah Kuala Selangor having jurisdiction over properties and lands within the District of Kuala Selangor. [4] The appellant in this case being dissatisfied with the Respondent’s decision and demand for outstanding assessment rates amounting RM 87,940.83 which was revised vide Section 144 of the Act when the Respondent had amended the valuation list regarding the Appellant’s properties after hearing of the Appellant’s objection on 10.6.2014. The Respondent has decided to dismiss the Appellant’s objection against the revised assessment rate. [5] The Respondent’s amendment to the valuation list was made in view of the Government of Selangor Gazette dated 16.3.2009 which had added new boundaries to the District of Kuala Selangor (within the Respondent’s jurisdiction) which is appended together with plan no. 1414. (see Exhibit SJ-5, enclosure 4). The amendment of the boundaries had in turn, added Lot 27 within the jurisdiction of the Respondent and this, the Respondent sought to collect rates from the Appellant in accordance with the amended boundaries set by the gazette. [6] It must be noted from the outset that the propriety of the Respondent’s authority in according to the gazette and including Lot 27 in the new amended valuation list is not an issue in contention. The contention of the Appellant is on the propriety of the annual/assessment rate which was imposed against the Appellant’s property. [7] The Respondent then had issued a Notice of Amendment of Valuation List dated 29.4.2009 (to include Lot 27) to the Appellant under Section 144 of the Act. (See exhibit S-3, enclosure 2) [8] In response to the Notice, the Appellant through its Management Agent, Agro Harapan Lestari Sdn Bhd (“Agent”) had issued a letter objecting (“1st objection”) the execution of the revised annual value and assessment to the Respondent dated 18.5.2009. (See exhibit S-4, enclosure 2) [9] In reply to the 1st objection, the Respondent considered the objection and accordingly reduced the annual value from RM1,436,900.00 to RM1,005,840.00 and the annual assessment rate was reduced from RM43,107.00 to RM30,175.20 on Lot 27. [10] Still dissatisfied with the reduction, the Appellant issued a further objection (“2nd objection”) through its letter dated 27.8.2009. The Appellant prayed for either a waiver of annual assessment or further reduction of the annual value and/or assessment rate. (See exhibit S-6, enclosure 2) [11] Thereafter, the Respondent had issued similar notices of the revised annual value and/or assessment rates regarding the Appellant’s other 16 Lots besides Lot 27 on 6.10.2009. (See exhibit S-7, enclosure 2) [12] Subsequent to the 2nd Objection, a meeting (“1st Meeting”) was called between the Malaysian Palm Oil Association (“MPOA”), the Appellant and the Respondent at the Respondent’s office on 26.2.2013. A minute of the meeting was prepared and was issued by the Respondent which was given to the Appellant. (See exhibit S-8, enclosure 2). A plain reading of the minutes of the 1st Meeting would reveal that the main purpose of the 1st meeting is to allow the opportunity for estate owners alike the Appellant (inclusive) to air their objections and/or grievances regarding the revised annual value and/or assessment rate. At no point in time that this particular meeting was intended to conjure a final decision on any of the issues raised in the meeting. [13] The issues raised were concluded with either for a further action to be carried out by a party “tindakan” or for the sake of announcement, explanation or information “makluman”. There was nothing conclusive in the 1st meeting after all of the complaints (inclusive of Respondent’s complaints) were heard. Even the tone of the Appellant’s Affidavit in support (enclosure 2) indicates that no decision was made: (Para 11(d)(ii), page 7, enclosure 2): “…bahawa nilai tahunan tidak sepatutnya didasarkan nilai pasaran terbuka kerana tanah-tanah ini bukannya tanah kosong dan merupakan tanah pertanian. Bantahan ini dipersetujui untuk dipertimbangkan oleh Responden dan hal ini akan dirujuk kepada Kamar Penasihat Undang-Undang Negeri.” (Para 11(d)(iii), page 7, enclosure 2): “Mesyuarat tersebut memutuskan bahawa MPOA membuat susulan kepada keputusan dari Kementerian-kementerian tersebut bagi satu keputusan berkenaan pengenaan kadar tahunan/taksiran tahunan keatas tanah-tanah ladang.” [14] Subsequent to the 1st meeting, the Respondent had issued a demand against the Appellant vide their letter dated 18.4.2014 for outstanding assessment rates on the Appellant’s properties. (See Exhibit S-9, enclosure 2) [15] In response thereto, the Appellant through its agent’s letter dated 16.5.2014 had informed of their objection (2nd objection) to the assessment rates and also that the matter was still pending a hearing date. (See exhibit S-10, enclosure 2) [16] In cognizance of the 2nd objection by the Appellant, the Respondent had invited the Appellant for a further meeting (2nd meeting) set on 10.6.2014 vide the Respondent’s notice dated 4.6.2014 to hear the Appellant’s objection. (See exhibit S-11, enclosure 2) [17] Briefly at this juncture, one of the Appellant’s contention on this notice was that the notice was allegedly only received by the Appellant on 10.6.2014 (same date of the 2nd meeting) rendering them to be unable to attend the hearing. Thus, allegedly the Appellant’s right to be heard under section 142 of the Act had been deprived. This contention would further be addressed later in this judgment for a full discourse on the evidence adduced into court by the parties. [18] However, it is pertinent to note that even at this juncture, the Appellant had contradicted itself on the issue of attendance at the 2nd meeting. It was averred in the Appellant’s own affidavit that one, Mr. Ravidranath had already attended the 2nd meeting on their behalf (see para 14(c) of enclosure 2): “(c) namun, seorang pengarah dari MPOA (iaitu En. Ravidranath G. Menon) telah hadir diri dan pengarah tersebut telah mewakili pemilik-pemilik ladang-ladang pokok kelapa sawit termasuk Perayu pada pendengaran bantahan pada 10.6.2014”(emphasis added) [19] The complaints (inclusive of the Appellant’s complaints) were addressed again on the 2nd meeting of which the minutes of the meeting was prepared and issued to all parties who attended the 2nd meeting (inclusive of the Appellant vide Mr Ravidranath). (See exhibit SJ-3, enclosure 4). It is the Respondent’s averment that there were no discussions or any conclusions within the 2nd meeting to contemplate for another further date for a hearing and/or meeting as everything was already concluded. [20] However, the Appellant had issued a letter dated 7.7.2009 (3rd Objection) to the Respondent claiming that they were deprived as plantation owners of the rights to be heard and that the 2nd meeting was only focused on the grievances of house owners and further requested for another hearing date. [21] Subsequent to the Appellant’s 3rd objection, the Respondent have issued a letter dated 18.8.2014 informing of the Respondent’s decision after the 2nd meeting was concluded. (See exhibit S-1, enclosure 2). The decisions made were that: (a) the objection hearing in relation to the holdings of the Appellant (that is the said Lots) was heard on 10.6.2014; (b) the Council Meeting held on 25.6.2014 decided not to consider the application of the Appellant for an exemption of the assessment as the Local Authority with the approval of the State Authority was empowered to impose the rate pursuant to Section 127 of the said Act; (c) the annual value of the said Lots has been amended from 10% to 5% of the open market value whereas the rate imposed pursuant to Section 130 of the said Act has been amended from 3% to 2%; and (d) the Appellant could appeal against the decision of the Respondent pursuant to Section 145 of the Act. [22] It was against the above decision of the Respondent that the Appellant filed their appeal before this court. Three grounds of appeal were raised by the Appellant, namely: I. The Appellant was denied of its rights to be heard before the Respondent to air their objections on the revised Valuation List and the annual value and/or assessment rate on the Appellant’s properties. II. The Respondent does not have the right to impose rates and on the properties considering the fact that the Respondent does not render services to the Appellant. III. The annual value of the properties cannot be based on the open market value of the properties. [23] This court is also mindful that besides the above grounds of appeal, in its affidavit the Appellant had also contended that there was an unfairness of the services rendered to its estate comparatively to Sime Darby’s estates. [24] Now, the issue on the method of assessment, services rendered by the Respondent and the alleged unfairness are to the Court’s view the substantive issue within this dispute while the remainder issue on the rights to be heard is verily a technical issue on the proper procedure of objections and appeals afforded under Sections 142, 144 and 145 of the Act. [25] Thus, before delving into the substantive portion of the dispute this Court shall first deal with the issue on the Appellant’s right to be heard. Ground I : Was the Appellant’s rights to be heard impeded by the Respondent? [26] To recap, the Appellant’s contention on this issue is as follows: (a) The Appellants were deprived of their rights to be heard as they were unable to attend to the 2nd Meeting on 10.6.2014 due to the short notice by the Respondent. (b) The opportunity to have their objections heard is afforded (in the mandatory) under Section 142 (2) of the Act which reads: “All objections shall be enquired into and the persons making them shall at such enquiry be allowed on opportunity of being heard either in person or by an authorised agent” [27] The Court shall now deal with this complaint of deprivation in two separate parts. That being the conduct of the complaints by the Respondent before the 2nd meeting on 10.6.2014 and the general conduct of the Respondent in dealing with the objections. [28] This Court acknowledges the mandatory provision set forth under section 142(2) of the Act with regard to inquisition of all objections and opportunity to be heard. Section 142(2) clearly provides that all objections shall be enquired and in respect of the Appellant’s objection, the Appellant or its agent shall be given the opportunity to be heard at the enquiry. However, this Court had earlier mentioned that from the evidence before the Court, there was no basis in the Appellant’s contention that it was deprived of its right to be heard. Close scrutiny of the evidences reflect otherwise: i. the Conduct of the 2nd Meeting on 10.6.2014 [29] The Appellant in its desperate (albeit fallible) attempt to prove the alleged deprivation had contended that they were unable to attend the 2nd Meeting due to the fact that they have only received the Notice for the 2nd meeting dated 4.6.2014 on the day of meeting itself that is 10.6.2014. Now, against this contention, the Court has scrutinised and considered evidences and even absence of evidences which goes against the Appellant in this regard. At multiple levels of the Appellant’s own evidence, the Appellants have contradicted themselves against their own contention. ii. Appellant’s letter dated 7.7.2014 signed its Director, Rizan Jiffrey (exhibit S-12, enclosure 2) admitted to being informed of the meeting [30] It is clear that the Appellants are employing tactics in a desperate attempt to raise any probable issues to defeat the decision by the Respondent. One such attempt is in their contention on the notice for the 2nd meeting. The appellant had even referred to the notice dated 4.6.2014 without much objection to the propriety of the notice. “We refer to our letter of May 16, 2014 and to the notification dated June 4, 2014 from your good office informing us that the meeting on the hearing of objections would be held on June 10, 2014” [31] In this 7th July’s letter, the Appellants themselves had admitted to be informed of the hearing on 10.6.2014 [32] Furthermore, the only ground contended in the Appellant’s letter was that the meeting was focused to the grievances of the house-owners. Never at any point in time that the Appellant contended anything on the receipt of the notice calling for the 2nd meeting. It was never raised. [33] If indeed the Appellant was short-served with the notice, the Appellant should have raised the issue in their letter. Instead the Appellant have admitted in total opposite of their contention; that they were informed of the 2nd meeting scheduled on 10.6.2014. iii. The Pos Eskpres search records adduced by the Respondent (exhibit SJ- 6, enclosure 9) [34] The Court is also mindful that the Respondent had indeed exhibited a supposed proof of fax transmission that the Respondent had faxed the notice to the Appellant as early as 5.6.2014. However, the Court does not intend to consider this piece of evidence as the exhibited proof is not a transmission report but merely an internal record of transmission of the Respondent. Nevertheless, this does not at all deter the judgment of this Court as there are other compelling evidences which proves that sufficient notice was given to the Appellant (inclusive of the admission discussed earlier above). iv. Online search by the Respondent [35] The Respondent vide its averment in enclosure 9 (Afidavit Jawapan Responden (2)) had stated that the Respondent had conducted an online search on the delivery status of the notice of invitation which found that the notice was successfully delivered to the Appellant on 9.6.2014. (See exhibit SJ-6, enclosure 9). [36] It is evidently clear that at the very least, or latest, the Respondent have received the notice one day before the date of the 2nd meeting. And this seems to be verily more coherent and probable considering the fact that the Appellant themselves had averred and admitted to send a representative to attend the 2nd meeting on their behalf (this would be discussed further later). [37] The Respondent exhibited the proof of postage “BORANG PENGHANTARAN POS EKSPRES” for the delivery with the reference number of “Bil (4)dlm.MDKS E/503/01”. [38] The above reference number corresponds with the reference number of the notice dated 4.6.2014 notifying the Appellant of the 2nd meeting. Furthermore in the same proof of postage, the registration number for that delivery is “LE11 769 323 8MY”. To which, the above registration number corresponds with the online search which was conducted and exhibited in enclosure 9 of the Respondent. The search result reads: “Tracking Shipments Detail result for Parcel No : LE117693238MY Date Time Process Office 09-Jun-2014 10:32:20 Delivered PPL KUALA LUMPUR [39] It is abundantly clear that the Appellants indeed received the notice at least a day before the 2nd meeting was heard and definitely not on the day of the meeting itself. The evidence clearly goes against the Appellant’s contention. v. The Appellant’s own Affidavit admitted that the Appellant managed to attend the 2nd Meeting on 10.6.2014 [40] This Court must also emphasise here that the Appellant’s contention is seemingly at odds with its own ground of appeal. It is verily evident from the ensuing discourse herein that the averments of the Appellant are baffling, incoherent, inconsistent and in total clash with each other and verily convoluted. [41] In one breath, the Appellant claims that they are deprived of the rights to be heard before the Respondent as they were unable to attend the 2nd Meeting which was held on 10.6.2014 (due to the fact that the notice was short-served which the Court disagrees above). However, in a multitude of aspects of its evidence, the Appellant itself admitted that they were able to attend the 2nd Meeting by way of representation. This is evident in the Appellant’s own letters and even the Appellant’s own Affidavit in Support of enclosure 1 namely enclosure 2. [42] While also in another breath, suddenly the Appellant by way of their own Affidavit (enclosure 7) affirmed by Mr Ravindranath a/l Gangandharan Menon, denied the representation which was averred by the Appellant’s own earlier enclosure 2. [43] This Court shall address these contradictions separately: i. 1st Contradiction – the Appellant’s own enclosure 2 (affidavit in support) [44] Against the Appellant’s submission on not being able to attend the 2nd Meeting, it is blatantly clear that the Appellant had derailed itself from this contention when the Appellant itself admitted in enclosure 2 that they were able to get a representative to attend the 2nd Meeting on their behalf. This is clearly averred by the Appellant at paragraph 14(c) of enclosure 2, the Affidavit in Support: “(c)…, a director from the MPOA (namely, Mr Ravindranath G. Menon) was present and this director represented the owners of palm oil plantations including the Appellant at the objection hearing on 10.6.2014” [45] It is plain and obvious that the interest of the Appellant was already represented by Mr Ravindranath (MPAO Director) during the meeting. The Appellant had acknowledged such representation by its own volition. It would be absurd that the Appellant now intends to go against its own averment. It is clear they were able to attend this meeting. Their own Affidavit averred so. ii. 2nd Contradiction – the Appellant’s letter dated 7.7.2014 [46] Even the Appellant’s letter 7.7.2014 (exhibit S-12, enclosure 2) admitted in para 2 that the MPOA Director had attended the 2nd meeting on their behalf. The letter reads at para 2: “2. We also note that a Director from the Malaysian Palm Oil Association (“MPOA”) was present at the objection hearing on June 10, 2014. The Director of the MPOA represented the owners of palm oil plantations in the area including ourselves.” [47] Hence, it is this court’s judgment that from the documentary evidences ventilated earlier, it is crystal clear without a single iota of doubt that the Appellants indeed managed to attend the 2nd Meeting on 10.6.2014 to have their objections heard vide their representative, the MPOA Director. In this case, when the Appellant had voiced out its objections on the rates imposed and objections were heard, the annual value and the rates were then revised, then, it could not be said here that there is deprivation of rights to be heard. The voice of the Appellant was validly echoed before the Respondent, giving them the statutory opportunity to have their grievances aired and heard. [48] There were nothing raised by the Appellant in this letter to the effect that the Appellant raised the issue of not being represented and/or not being able to attend the 2nd Meeting. None at all. In fact, the Appellant took the total opposite standing that they managed to attend the meeting by having been represented by the MPOA Director. iii. 3rd Contradiction – MPOA Director’s Affidavit for the Respondent (Enclosure 7) [49] Now, against the admission that the Appellant was represented, out of the blue the Affidavit affirmed by the MPOA Director sought to negative the Appellant’s contention on representation during the 2nd Meeting. The Appellant is at odds with their own averments in their evidence. [50] The averment in enclosure 7 at para 7 sought to defeat the notion of representation set forth by the Appellant itself: “I am aware that the Respondent fixed an objection hearing on 10.6.2014 on the proposed imposition of annual rates/assessments on certain oil palm plantation lands belonging to KL-Kepong Country Homes Sdn Bhd and Kuala Lumpur Kepong Berhad. I accompanied the representatives of these 2 plantation owners to the office of the Respondent on 10.6.2014. It must be mentioned that before I went for the hearing on 10.6.2014, I had also made a telephone enquiry with Mr. Ravindran Palpanathan, Manager of Shalimar Estate whether his estate has also been called for a hearing on the same and he replied in the negative” [51] It is abundantly clear that the Appellant itself is unsure of their stance on the representation. Such contradiction warrants this Court to question the integrity of the Appellant’s case and the veracity of the Appellant’s evidence. vi. General conduct regarding the Appellant’s objections [52] Notwithstanding the finding above that indeed the Appellant was not at all deprived of their rights to be heard, it is already abundantly clear that besides the conduct of the 2nd Meeting, the objections were appropriately heard and considered by the Respondent. [53] As discussed earlier, the Appellant had written to object the revised valuation list and rates for multiple times. The Respondent had afforded the Appellant its right to be heard not only in the 2nd Meeting but in also in other instances revolving the Appellant’s objections. (a) 1st reduction in consideration of the Appellant’s 1st objection of 18.5.2009 [54] Upon receiving the Appellant’s 1st objection, the Respondent had in fact taken their objection into consideration and substantially reduce the annual valuation by a whopping RM431,060.00 while the assessment was reduced by a long-shot of RM12,931.80. (b) 1st Meeting hosted by the Respondent to cater to the objections of the Appellant and other plantation owners [55] In cognizance of the Appellant’s further objection against the reduced annual value and assessment above, the Respondent again, afforded the Appellant with further opportunity to be heard and voice out their further objection in this 1st Meeting. (c) Conclusion and decision after the 2nd Meeting dated 18.8.2014 [56] And in fact, after affording the Appellant their rights to be heard and voice out their objections by attending the 2nd Meeting. And upon this 2nd Meeting the decision of the Respondent was to give a further reduction from the initial prior reduction. The annual value of the said Lots has been amended from 10% to 5% of the open market value whereas the rate imposed pursuant to Section 130 of the said Act has been amended from 3% to 2%. [57] At every instance the Appellant sought to make an objection, the Respondents has done their level best to afford the Appellant its rights to be heard in holding meetings upon meetings and in fact had made reductions upon the objections made. [58] It is apparently clear, inclusive of the conduct 2nd Meeting, that the Respondent for numerous times has afforded the rights to be heard to the Appellant. The Respondent had referred to the case of Majlis Daerah Dungun v Tenaga Nasional Bhd [2006] 2 CLJ 1078 which decided the following: The respondent was aggrieved by the amendment of the valuation list…the respondent had to make an objection in writing to the appellant under s.144(3) of the Act. The Appellant had to “hear” the objection and make a decision as to whether the respondent’s objection was justifiable. The “hearing” before the appellant would be the proper forum where the respondent can voice its grievances” [59] Indeed, the Respondent had afforded and furnished the Appellant the proper forum (1st and 2nd Meetings) to hear the grievances of the Appellant before the Respondent itself. Thus, it is the Court’s finding herein that there was never any impediment against the Appellant’s rights to be heard. [60] Now, on the contention that the 2nd Meeting was conducted only to cater to the grievances of the house owners which was raised in the Appellant’s letter dated 7.7.2014 and was later totally abandoned in the Appellant’s submission. Simply put, the only ground that the Appellant called for a further meeting after the 2nd meeting was not because of the alleged short-notice or the inability to attend, but instead on the tone the 2nd Meeting took place. For the purpose of completeness, this Court shall briefly allude to this contention. [61] Against this contention, the minutes of the meeting clearly indicate that the objections by the plantation owners were dealt with and discussed. There is a dedicated section in the minutes of the 2nd Meeting (exhibit SJ-3, enclosure 4) that deals with objections of plantation owners alike: “4.0 SESSI MENDENGAR BANTAHAN/SYOR-SYOR PERTIMBANGAN 4.1 Terdapat 47 pemilik yang membuat bantahan pada kali ini melibatkan…dan pemilik tanah ladang estet.” [62] And the summary in paragraphs 4.3 (i) until (v) clearly includes the grievances which were forwarded by the Plantation owners themselves and not only the house-owners. The Respondent would not have invited all of these plantation owners (Appellant included) to the 2nd meeting if they had not intend to address the plantation owners’ grievances. [63] Thus, in cognizance of the above, it is this Court’s finding that the Appellant’s rights to be heard have never at any point in time been impeded by the Respondent. [64] The Appellant had also questioned the legitimacy of the Respondent’s authority to impose rates upon the amended valuation list in including Lot 27. The Appellant in other words is questioning whether the Respondent has jurisdiction to make amendments on the valuation list to include lot 27 and impose rates. This is another issue raised by the Appellant in their Affidavit but was abandoned in their submission. On this issue, suffice to say that this Court is in total agreement with the Respondent’s submission on the authority of the Respondent to impose rates and amend the valuation list in view of the gazette of the state of Selangor (exhibit SJ-5, enclosure 5) which broadens the Respondent’s jurisdiction to include Lot 27. [65] The gazette amending the boundaries of the Respondent was a valid and lawful gazette issued by the Government of Selangor under Section 4(3) of the Act that confers power to state authority (in this case the Government of the State of Selangor) to alter the boundaries of any local authorities. The Authority of the Respondent to impose rates on lands within its jurisdiction emanates from Section 127 of the Act. And thus, the authority of the Respondent to amend the valuation list to cater to the gazette’s inclusion of Lot 27 stems from Section 144(1)(f) of the Act which stipulates that: “(f) any change to the rateable holding effected by any law relating to planning as a result of which the value of the holding has been increased or decreased, the Valuation Officer may at any time amend the Valuation List accordingly and rates shall be payable in respect of the holding in question in accordance with the Valuation List so amended” [66] It is sufficiently clear that the amendment of the Valuation List and the rates were made in accordance of the Government of Selangor’s gazette to include Lot 27 in the Respondent’s boundaries and/or jurisdiction. Thus, the Respondent is within its rights and jurisdiction to make such amendment to the Valuation List and the rates. Ground II : The Respondent does not have the right to impose rates and on the properties considering the fact that the Respondent does not render services to the Appellant. [67] Now, it is the contention of the Appellant that direct services from the Respondent is a condition precedent or a requisite to be fulfilled before the Respondent may have the rights to impose rates. It must be noted here that the Appellant’s contention is not supported by any direct authority be it any statutory provision or decided precedents. [68] What was instead put forth by the Appellant was their own interpretation of the different sections of the Act and also the Interpretation Act which was stringed together (to their own benefit) to prove that it is incumbent upon the Respondent to provide services before they have the rights to impose rates. Hence, it must be appreciated clearly that this preposition is devoid of any direct authorities. [69] However, it also must be noted that this particular preposition coined was made specific to the alleged duty of the Respondent to provide waste/rubbish collection services within the private properties of the Appellant. This is how the Appellant sought to conjure this preposition: [70] Section 127 of the Act states that the local authority (the Respondent in this case) may with the approval of the State Authority to impose rates for the purposes of this Act. [71] The Appellant continued to zoom in and define what is this “purpose of this act”. It is evident here that what was intended to be employed by the Appellant was to adopt the purposive approach of interpreting statues. However, the Appellant sought to define this “purpose” in reference to Section 72 of the Act which instead enumerates the powers of the Local authority. [72] Section 72 (1) of the Act only enumerates the authority of the Respondent to maintain and carry out sanitary services. Not at any point in time it stipulates that it is incumbent that the Respondent to do so. The sentence used is: “(1) A local authority shall have power to do all or any of the following things, namely…” [73] Not at any point in time that the wording of section 72 is in the mandatory meaning that the Respondent as Local Authority is mandatorily imposed to carry out such duty to earn the rights to claim rates. The words used in section 72 is clearly “shall have power to do” and not at any time “shall do” all or any of the following things. [74] The Appellant had also referred to Section 17A of the Interpretation Acts 1948 and 1967 in that in the interpretation of an Act, the interpretation which would promote the purpose of an Act shall be preferred. However, as had been made clear in the finding above, Section 72 of the Act is a provision defines the power which the Local Authority possesses and not the particularly the purpose of the Act. [75] In fact, the more probable interpretation of the above provision, if at all we look to the purpose of this Act, is that section 72 of the Act is the provision which empowers the Local Authority to provide services. It makes more legal sense that the Local Authority is empowered also under Section 127 of the Act to collect revenues (in the form of rates) in order for the Local Authority to be able to render such services which it is empowered to perform. [76] It is beyond any logic or reason that the Appellant saw it fit to interpret the whole purpose of the Act in reverse. In other words, there must be the means to perform before the Local Authority can perform. This, indeed is the more preferred interpretation as it indeed serves to promote the purpose of the Act (that is to allow the Local Authority to garner the means to perform the duties they are empowered to perform). [77] Now, the Respondent had in fact given a valuable reported case as a support to the Court’s preferred interpretation above. It is the case of Majlis Daerah Dungun v Tenaga Nasional Bhd [2006] 4 MLJ 731. Now the Court shall reproduce the relevant portion of the Court of Appeal’s decision in this said case and will proceed to categorically apply its relevance in the present case: “The respondent's liability as a ratepayer is not a private debt but a public obligation. The appellant has to perform the duties and exercise the powers specified in the Act. As a local authority, it would require revenue to perform its duties. Section 63 of the Act provides it shall have the general control and care of all places within the local authority area which have been or shall be at any time set apart and vested in the appellant for the use of the public or to which the public shall at any time have or have acquired a common right. It may erect and maintain in any open public place buildings for public purposes. Section 72 of the Act provides certain powers to a local authority in relation to sanitation, the erection and managing of markets, lodging houses, stalls, public lavatories and abattoirs. It has also the power to safeguard and promote the public health, for example, to take all necessary and reasonably practical measures for preventing the occurrence of any infectious, communicable or preventable diseases. To carry out its duties the appellant requires revenue. Section 39 of the Act states that the revenue of a local authority shall consist of all taxes, rates, rents, licenses, fees, dues and other sums of charges payable to the local authority by virtue of the provisions of the Act or any other written law. Thus, one of the principal source of revenue for the appellant, like any other local authority, is rates.” (a) Paying rates is a Statutory Duty [78] From the passage of the Court of Appeal’s dicta above, in reference to the general control and care of the Local Authority of its jurisdiction under Section 63, the powers of the Local Authority under Section 72 and the fact that the source of revenue for the Local Authority to perform its power is stated under Section 39, the Court is of the considered view that the obligation to pay rates to enable the Local Authority to perform its powers for the public’s benefit at large (and not any private benefit) is a statutory obligation. This is coherent with the power of the Local Authority under Section 127 of the Act to impose rates “as is deemed necessary”. [79] It is this Court’s judgment that when the Appellant’s properties are within the jurisdiction of the Powers of the Respondent, and to enable the Respondent to perform its powers to render services to the public at large, the Appellant is statutorily obligated to pay the rates as imposed by the Respondent notwithstanding any contention on a supposed direct service to be rendered to the Appellant. (b) The Respondent as the Local Authority is not obligated to render direct services to the Appellant especially not within the properties of the Appellant [80] It is sufficiently compelling from the dicta above that “the respondent's liability as a ratepayer is not a private debt but a public obligation” to infer that there is no duty owed by the Respondent in the present case to render services directly and personally to the Appellant in its properties. The power of the Local Authority is to be exercised for the benefit of the public at large and not specific to the benefit of any private interest and/or interests. And indeed, the Respondent does provide various services throughout the areas surrounding the Appellant’s properties, particularly the waste/rubbish disposal services and the public bus stops within the District of Kuala Selangor. (See exhibit SJ-4, enclosure 4) [81] The Appellant had contended that the bus stop services and the waste/rubbish disposal services are more focused to the benefit of the house-owners rather than the Appellant’s estate’s benefit owing to the alleged fact that the bus stops or areas for waste/rubbish disposal is closer to the housing areas. Thus, forms the core of their contention of absence of direct services. With due respect, this Court entirely disagrees with the Appellant’s contention. There are no evidences at all afforded by the Appellant in any of its affidavits that indeed the Respondent had provided these two services mainly for the benefit of the residence within the surrounding area. There is no evidence at all adduced by the Appellant that the Appellant or any of its employees, have never benefited from the array of bus stops and sanitation provided by the Respondent. It is more probable than not that the Appellant or any of its employees have utilized these services be it in sanitation or purposes of logistics and transportation. [82] In fact, it is abundantly more obvious that the Appellant had indeed directly benefited from the services rendered by the Respondent. The public at large (inclusive of the Appellant) benefit from the bus stops as a form of public transportation. Even assuming that every single one of the workers or members of the Appellant’s estate commutes by their own vehicle (which there is no proof of and verily unlikely to be the case), it does not deter the fact that they benefit from the public transportation being a viable alternative to ease out traffic to promote better flow and experience of transportation and logistics to and fro within the jurisdiction of the Respondent. Even if the Appellant itself or any of its members are in their own private vehicle driving around the roads under the jurisdiction of the Respondent, the Appellant has indeed directly benefited from the Respondent’s services. [83] With regards to the sanitation services, the public at large (inclusive of the Appellant) directly benefits from the waste management which promotes a healthier environment to dwell and work (not necessarily in the Appellant’s estate alone but the public areas which are under the Respondent’s jurisdiction). [84] This Court reiterates that the duty to pay assessment rates is not a private debt but a public obligation. The rates are paid for the betterment and benefit of the public at large (which is not exclusive to the Appellant’s benefit alone). Furthermore, the Respondent have already provided these services for the benefit of the public at large. Whether or not the Respondent chooses by its own volition to reap benefit from it, is irrelevant. The services are there for the utility of the public at large (inclusive of the Appellant). However, the Appellant cannot selfishly eschew, avoid and/or abstain from their public obligation to pay the rates which are valuable to public at large to enable the Respondent as the Local Authority to provide their services to the public’s benefit at large merely because it may not or it has chosen not to benefit from it. Again, there are no evidences afforded by the Appellant that it had not benefited from these services. The averment that the closest bus stop to the estate being 1.5 kilometers away from the estate is firstly, no excuse for the Appellant to refuse to pay rates to enable the Respondent to maintain these services for the public at large, and secondly, is not a ground to deem that the bus stop is intended for the main usage of house-owners. Similarly so in regards to the waste/rubbish disposal services. There is no proof that it was provided for only for the benefit of the house-owners and there is no proof that the Appellant never benefited from it. [85] Ultimately, the propriety of the imposition of rates is not hinged on the benefit afforded and given to any specific taxpayer and/or rate payer, but is hinged on the benefit afforded to the public at large. Again, it is not a private debt as accurately and correctly put in the dicta of the Court of Appeal in the Majlis Daerah Dungun case. [86] Even if assuming that the Court were to agree with the Appellant, it is more probable than not that the Appellant itself has benefitted from the services rendered by the Respondent. And it is more glaring and obvious that the Appellant has not put forth a single inkling of evidence to prove that it has not benefited at all from the services. [87] Thus, in cognizance of the above, it is this Court’s finding that firstly, the Appellant may not eschew itself from its public and statutory obligation to pay rates for the benefit of the public at large. Secondly, it is not incumbent upon the Respondent to render personal and direct services within the Appellant’s properties so as to obtain the rights to impose rates. It suffices that the Respondent already renders the services that they are empowered to do for the benefit of the public at large. The rates are paid to enable the Respondent perform the powers which are conferred upon it as the Local Authority for the benefit of the public at large. Thirdly, there are no evidences at all that the Appellant has never benefited from the services rendered by the Appellant. Fourthly, it is more probable than not that the Appellant has indeed benefited from the services rendered by the Respondent both directly and indirectly. [89] There is also another contention raised by the Appellant and this is with regards to the alleged unfair treatment of ratepayers. It was averred by the MPOA Director in his affidavit (enclosure7) that the Respondent had allegedly been unfair in rendering services to 6 plantations owned by Sime Darby in that the Respondent had provided waste/rubbish disposal services directly within Sime Darby-owned lots and thereby the Respondent had been unfair to the Appellant as a ratepayer if compared to Sime Darby. The Plaintiff sought to rely on the cases of Arsenal Football Club Ltd v Ende [1979] AC 1, Inland Revenue Comrs v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 AER 93 and Prudential Assurance Malaysia Bhd v Kerajaan Malaysia [2003] 6 CLJ 28 [90] However, this Court is of the view that the averment on unfair rendering of services is baseless without evidence and is a hearsay. There was no prove to support the averment and nothing was exhibited as evidence. It is a bare allegation devoid of any proof. Not only that it is baseless without evidence, the averment is a hearsay averment as it intends to put words into the mouth of the Respondent. The averment at para 8(d)(ii) of enclosure 7 reads: “(ii) Responden juga telah memberi perkhidmatan pemungutan sampah untuk 6 ladang-ladang tersebut Sime Darby itu. [91] Clearly identifiable from the above averment is that the statement averred was not the MPOA Director’s own statement but the alleged statement which was supposedly uttered by the Respondent during the 2nd Meeting on 10.6.2014. Clearly, this is hearsay evidence. It is trite law that the Court can never admit and consider hearsay evidences unless it falls within the specific exceptions under the Evidence Act. The Appellant never submitted on these exceptions and it very unlikely that this case would fall within any of the exceptions. [92] Now, there are contemporaneous documents which are derivative from the 2nd Meeting held. However, it is obvious from a plain reading of the minutes of the 2nd Meeting that the averment on the Respondent rendering direct services within Sime Darby’s plantation was nowhere recorded within the minutes. There was never any mention or complaint involving Sime Darby’s plantations. In fact there was never any mention of Sime Darby within the 2nd Meeting’s minutes. (See exhibit SJ-3, enclosure 4). [93] In fact, it was the averment of the MPOA Director himself that he admitted that the minutes of the 2nd Meeting does not contain or record of the Respondent’s alleged agreement to provide services within the lots of the plantation owners. Paragraph 9 of enclosure 7 reads: “Saya faham bahawa minit-minit mesyuarat Jawatankuasa Responden yang berkaitan untuk 10.6.2014…tidak mengandungi apa yang dipersetujui oleh Responden bahawa Responden akan ukur bangunan-bangunan di kedua-dua ladang tersebut dan memberi perkhidmatan-perkhidmatan…” [94] It does not strike any sense that the MPOA Director never saw it fit to at least inform, or communicate to the Respondent regarding the supposed incomplete minutes of the 2nd Meeting. Having in mind of the heavy sentiment and reliance of the Appellant on this issue involving Sime Darby, it is utterly strange and peculiar that never did anything to clarify or confirm the contents which are allegedly unrecorded. [95] Notwithstanding the authorities forwarded on the fair treatment to taxpayers, the circumstances and the evidence of this case clearly does not hold water. Even in the face of these authorities, the evidences (in the minutes of the 2nd Meeting and Enclosure 7), the absence of evidence, and the fact that the averment was a hearsay evidence, the Court is in a bind and is not able to draw any conclusion that there was any unfair treatment afforded against the Appellant. There were simply no evidences at all to prove such allegation. In absence of any proof of such unfairness, the Court cannot draw such inference of unfairness. Ground III: The annual value of the properties cannot be based on the open market value of the properties. [96] Now, coming to the last ground, the Appellant had contended that notwithstanding all of the above and the Respondent’s rights to impose rates, the Respondent may not calculate the annual value and assessment rate based on the open market value of the Appellant’s properties. [97] On this contention, the Appellant forwarded its arguments in two folds. Those in which are; it is wrongful as the Respondent had unlawfully relied unto proviso (c) of Section 2 of the Act and it is wrongful as the Respondent allegedly had employed a different manner of calculation over Sime Darby’s plantations. Does this case fall within proviso (c) of Section 2 of the Act? [98] It was submitted by the Appellant that the calculation that was applied by the Respondent (in using the open market value) falls squarely on Section 2 proviso (c). The counsel for the Appellant further submitted that section 2 defines “annual value” to mean the estimated gross annual rent at which the holding might reasonably be expected to let from year to year the landlord paying the expenses of repair, insurance, maintenance or upkeep and all public rates and taxes. Thus, generally annual value in other words is the reasonably expected gross rent payable in case the land was put to let. However, this definition is subject to certain provisos in which the Valuation Officer (in this case the Respondent) may depart from this general meaning of annual value. [99] And it is the Appellant’s case that the proviso relied upon by the Respondent is proviso (c) which reads: “(c) in the case of any land— (i) which is partially occupied or partially built upon; (ii) which is vacant, unoccupied or not built upon; (iii) with an incomplete building; or (iv) with a building which has been certified by the local authority to be abandoned or dilapidated or unfit for human habitation, the annual value shall be, in the case of subparagraph (i), either the annual value as hereinbefore defined or ten per centum of the open market value thereof at the absolute discretion of the Valuation Officer, and in the case of subparagraphs (ii), (iii) and (iv) the annual value shall be ten per centum of the open market value thereof as if, in relation to subparagraphs (iii) and (iv), it were vacant land with no buildings thereon and in all cases the local authority may, with the approval of the State Authority, reduce such percentages to a minimum of five per centum” (emphasis added) [100] The Appellant further argued that it was wrongful for the Respondent to have relied upon the proviso (c) as Lot 27 is an agricultural land planted with palm oil while other lots of the estate were built with ancillary facilities for running an oil palm estate, including a guard house, office, staff bungalow and workers quarters and others. Thus, it is the contention of the Appellant that the properties are fully occupied and was built upon and therefore, Lot 27 cannot fall within proviso (c) of Section 2. [101] To support its argument, the Appellant had referred to the Supreme Court’s decision in the case of Datuk Bandar Kuala Lumpur v Bukit Jalil Estates Sdn Bhd & Anor [1988] 1 CLJ (Rep) 25 in which the Supreme Court had decided that (with regards to a rubber estate land) since “…the respondent in that case has cultivated the lots and used them for rubber tapping with exclusive possession, the lots are fully occupied.” [102] The Appellant then continued that the same case of Bukit Jalil above also decided that since the Respondent’s (in that case) lot are all “agricultural land”, and “are completely occupied and not vacant, they do not come under proviso (c) irrespective of whether they are built upon, not built upon or partially built upon, and in respect of them the annual value should be estimated gross annual rent” [103] The Appellant further submits that the approach in the Bukit Jalil case above had been followed in another case of Ng Chin Siu & Sons Rubber Estate Sdn Bhd v Datuk Bandar, Kuala Lumpur [1994] 1 CLJ 283. [104] Thus, in reliance of these cases above, the Appellant contends that it is wrongful for the Respondent to rely upon proviso (c) and departing from the initial definition of gross annual rent enumerated in Section 2 of the Act. [105] From the outset with regards to this contention, it must be noted that this Court has no intention to challenge or depart from the precedents above. However, due to the circumstances and evidence of this present case, the Court does see it fit that the cases above must be distinguished from the present case. The reason being is this; the Respondent in actual fact had relied on proviso (d) of Section 2 of the Act and not proviso (c). Upon close scrutiny of the documentary evidence forwarded by the Parties, this court finds that it more probable than not that the Respondent is actually relying on proviso (d) of Section 2 of the Act. This is already made clear during the 1st Meeting held on 26.2.2013. It vividly clear from the minutes of the 1st Meeting on 26.2.2013 that the decision of the Respondent in making the assessment is not on the grounds that the land was partially occupied or partially built upon or was vacant. In actual fact in ascertaining the annual value of the properties, Puan Salinda (valuation officer) has made the evaluation on the presumption that the properties are vacant because of the difficulties to get sufficient information to be a benchmark to gauge or to evaluate the gross annual rent. [106] This court is of the view that the Appellant had somehow or rather misinterpreted the minutes of the 1st Meeting. The minutes recorded were that: “Puan Salinda binti Jamil, Jabatan Penilaian dan Pengurusan Harta memaklumkan bahawa kenaan cukai bagi ladang-ladang estet merujuk kepada peruntukan di bawah Seksyen 127 dan asas penilaian pula telah mengambilkira nilaian tanah kosong (iaitu mengandaikan bahawa tanah tersebut kosong tanpa sebarang binaan atau tanaman di atasnya kerana kesukaran untuk mendapatkan maklumat hasil keuntungan melalui aktiviti di atas tanah tersebut)…”(emphasis added) [107] With the minutes of the 1st Meeting (documentary evidence) the Respondent clearly had indeed relied on proviso (d) as it was largely difficult for the Respondent to estimate the gross annual rent, owing to the fact that the land was never let to any other persons and was personally worked by the Appellant. It is compelling that the Respondent would not have sufficient information to make this calculation of the estimated gross annual rent. Thus, in this instance, this case falls squarely on proviso (d) of Section 2 of the Act which reads: “(d) where in respect of any particular holding, in the opinion of the Valuation Officer, there is insufficient evidence to base a valuation of annual value upon, the Valuation Officer may apply such methods of valuation as in his opinion appears appropriate to arrive at the annual value;”( emphasis added) [108] These minutes were never disputed by the Appellant. As a matter of fact, the Respondent had mentioned during the 1st Meeting that it has faced “kesukaran mendapatkan maklumat” and with that position at hand, thus verily it falls squarely within the ambit of “insufficient evidence” under proviso (d) of Section 2 of the Act. [109] Therefore, it is the finding of this Court that Respondent clearly placed reliance on proviso (d) of Section 2 of the Act and not proviso (c). The Respondent had only presumed or “mengandaikan” that the land is in a vacant state and had not deemed that the land is indeed vacant. In actual fact, the decision of the Respondent is not dependent on the variable that the Appellant’s properties were occupied, or built or otherwise but is on the fact that they had insufficient information to gauge the gross annual rent. Hence, in these circumstances, it is within the authority of the Respondent, upon its opinion to apply any valuation method it sees appropriate. Has the Respondent used a different manner of evaluation on Sime Darby’s plantations compared to the Appellant’s estate? [110] It was first averred in the MPOA’s Director’s affidavit in enclosure 7 and was later submitted by the Appellant that the Respondent should afford the same method of calculation as had been allegedly employed upon Sime Darby’s plantations. It was averred at para 8(d)(i) that: “satu kaji ukuran (survey) telah dijalankan oleh jabatan Responden yang berkaitan pada “estate lines sites” 6 ladang-ladang Sime Darby Bhd dalam Daerah Kuala Selangor untuk menentukan nilai bangunan-bangunan yang didirikan di ladang-ladang berkenaan. Saya juga sedar bahawa Responden kemudiannya mengurangkan kadar tahunan/taksiran secara ketara ke atas 6 ladang-ladang Sime Darby tersebut.” [111] The Appellant repeatedly stated that the Respondent had agreed and should employ the same manner of calculation as it had allegedly applied on Sime Darby’s plantations. However, the line of evidences (even the Appellant’s own evidences) and also want of evidences seemingly defeat this contention. On this issue, this court poses this question. Are there any supporting or contemporaneous documents exhibited by the Appellant as proof of this different method of calculation alleged? [112] Firstly, the different method of calculation was raised by the MPOA’s Director in his affidavit Enclosure 7. To support his contention, the MPOA’s Director had never see it fit to exhibit anything to the effect of proving this contention. It is verily peculiar and questionable as to the manner in which the MPOA’s Director was able to know that such “survey” was conducted without having any documents to prove it. If indeed the MPOA’s Director knew of this survey and its decision and/or conclusion, it must have been that it would be within his possession such documents which he had derived his information from. If not, there would be an obvious and serious absence and want of evidence. The most natural conduct to prove such averment is to exhibit such ‘survey’ but the Appellant had failed to do so. Thus, in the absence of any proof, the averment is merely hearsay evidence. Secondly, the MPOA’s Director himself admitted that he did not have evidence to support his contention. It was in fact admitted in the same Affidavit that the minutes of the 2nd Meeting does not contain any mention of the survey regarding Sime Darby Bhd or the agreement that the Respondent would afford the same method of calculation to the Appellant. “Saya faham bahawa minit-minit mesyuarat Jawatankuasa Responden yang berkaitan untuk 10.6.2014…tidak mengandungi apa yang dipersetujui oleh Responden bahawa Responden akan ukur bangunan-bangunan di kedua-dua ladang tersebut dan memberi perkhidmatan-perkhidmatan…” Thirdly, the MPOA’s Director had also admitted that there is never any mention of this survey or method of calculation as well as the Respondent’s agreement to use the alleged method of calculation applied onto Sime Darby Bhd’s plantations. [113] Clearly, the minutes of the 1st meeting had only recorded that the “cadangan” or proposal (to only evaluate the buildings erected on the lands) was voiced out. However there was never any mention of Sime Darby’s survey or the Respondent’s agreement to use the calculation alleged. The minutes regarding this proposal reads: “3.1 Cadangan untuk membuat penilaian ke atas bangunan sahaja dan nilaian secara ‘token’ ke atas tanah” Tindakan: Jabatan Penilaian dan Pengurusan Harta, MDKS” There was never any concluded agreement that the Respondent ought to employ such method of calculation. In fact, it was admitted in the Appellant’s own submission that what was decided in the 1st meeting was that the Respondent would only “consider a proposal to just value the buildings on the estate lands”. (See para 5(d)(i), Submissions of Appellant) [114] In fact, this Court opines that from the admission and minutes of the 1st Meeting above, it is apparent that the Respondent had never intended to forego the evaluation of the inherent value of the land itself, to be calculated together with the value of the buildings on the estate lands. The proposal also includes the “token value” on the lands. [115] It would be too outreaching if the Court were to give meaning to the proposal to be implied with what the Appellant averred. There was no other evidence led to this effect. The Court cannot afford to draw such assumption. Furthermore, an evaluation must necessarily and logically include the inherent value of the land itself, and not just the occupation or buildings on the land. A land’s value is not measured merely on its structures or plantation. A vacant land might as well be more valuable comparatively to an occupied land or land occupied with agriculture owing to its location, facilities and services available in the surrounding. Even the minutes of the meeting does not correspond with the Appellant’s contention. The evaluation proposed is not merely on the building only but also inclusive of the value of the land itself. [116] It is apparent here even in the 1st Meeting itself (which was never disputed by the appellant) that the proposal does not forego the evaluation on the land itself. [117] In this regards, firstly, there are no evidences at all to prove that the Respondent had given a different method of calculation on the annual value/assessment to Sime Darby Bhd. Secondly, there are no evidences at all to prove that the Respondent had agreed to the proposal to evaluate only the buildings and plantations in the Appellant’s estate to get the annual value/assessment. In fact, the Court finds that the MPOA’s Director himself has admitted to this want of evidence supporting this contention. [118] In fact, the Respondent has been kind enough to base its calculation on the open market value of the Appellant’s properties in the year 1996, which definitely would be cheaper if compared to the value of the Properties on the current market value. Not only that the Respondent is within its rights to use the open market value as its basis of calculation, the annual value calculated is already to the advantage of the Appellant. [119] Therefore, this Court finds that the Respondent’s decision to base their calculation on the open market value of the Appellant’s estate is a valid method of calculation by the purview of proviso (d) of Section 2 of the Act. Furthermore, there was never any proof of any different method of calculation (to Sime Darby) and any agreement to apply that alleged method of calculation as was asserted by the Appellant. [120] Based on the aforementioned reasons, the Appellant’s appeal is dismissed with costs. On the issue of costs [121] Having heard the submission from both counsels for the Appellant and the Respondent, the Court hereby orders the Appellant to pay the Respondent RM8,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 13th March 2015 For the Appellant - Tetuan Christopher & Lee Ong Encik John Matthew For the Respondent - Tetuan Ibrahim & Fuaadah Encik Mohamed Ibrahim Puan Fazlin Ilani 46

Tika 2.6.0

24NCC-36-03/2014

PLAINTIF KHOO KHEE CHEONG DEFENDAN 1. CHEN AH MENG 2. GOH KING HIONG 3. THIEN NAM SDN BHD

05/03/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=46445431-ffd0-4f71-96c7-3b94756325c4&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO.24NCC-36-03/2014 Dalam Perkara THIEM NAM SDN BHD (NO. SYARIKAT 389367-H) Dan Dalam Perkara Seksyen 181 Akta Syarikat 1965 Dan Dalam Perkara Aturan-Aturan 7 dan 88 Kaedah-Kaedah Mahkamah 2012 ANTARA KHOO KHEE CHEONG … PLAINTIF DAN 1. CHEN AH MENG … DEFENDAN- 2. GOH KING HIONG DEFENDAN 3. THIEN NAM SDN BHD ALASAN PENGHAKIMAN (Kandungan 28) [1] Plaintif (Khoo Khee Cheong) pada 7.1.2015 telah memfailkan Kandungan 28 ini untuk mendapat satu injunksi Erinford apabila permohonannya di dalam Saman Pemula (Kandungan 1) bagi beberapa relif injunksi dan deklarasi telah ditolak oleh Mahkamah pada 4.12.2014. [2] Bagi menentukan samada injunksi Erinford yang dipohon oleh Plaintif boleh dibenarkan dibenarkan atau tidak, fakta latar belakang kes ini molek diperturunkan bagi memberi gambaran jelas apa yang berlaku sebenarnya sehingga tercetusnya permohonan di Kandungan 1 sehingga pemfailan Kandungan 28 ini. i. Plaintif adalah pemegang saham majoriti di dalam syarikat bernama Thien Nam Sdn Bhd (TNSB) yakni Defendan Ketiga. Manakala Chen Ah Meng (Defendan Pertama) dan Goh Kin Hiong (Defendan Kedua) adalah juga pemegang-pemegang saham di dalam TNSB. Kedua-dua Defendan Pertama dan Kedua adalah merupakan pengarah-pengarah TNSB. Plaintif mendakwa bahawa telah dipersetujui oleh pemegang-pemegang saham yang Plaintif akan mengendalikan segala urusan pentadbiran kewangan dan hal ehwal harian TNSB, manakala Defendan Pertama pula akan menguruskan penyelenggaraan mesin-mesin TNSB. Defendan Kedua pula adalah seorang warganegara Singapura dan menetap di Singapura. ii. Adalah menjadi dakwaan Plaintif juga bahawa pada sekitar September 2013 Defendan Pertama telah berhenti dari TNSB dan urusan pengendalian mesin diambil alih oleh beliau sejak Defendan Pertama berhenti kerja. Pada bulan November 2013 Defendan Pertama telah memfailkan satu tindakan di Mahkamah Sesyen Shah Alam terhadap TNSB di dalam guaman sivil No. B52NCVC-87-11/2013 (guaman tersebut) bagi menuntut gaji beliau sebagai pengarah yang tidak dibayar oleh TNSB sejak September 2013. iii. Plaintif yang mendakwa segala urusan pentadbiran TNSB adalah dijalankan oleh beliau, telah kemudiannya melantik firma peguamcara yang beramal atas nama Tetuan Alan Chua & Co mewakili TNSB untuk membela tindakan terhadap TNSB dalam guaman tersebut. Defendan Pertama yang membantah perlantikan Tetuan Alan Chua & Co telah memfailkan satu permohonan di dalam guaman tersebut membantah perlantikan Tetuan Alan Chua & Co atas alasan perlantikan peguamcara itu telah dibuat tanpa resolusi dan kelulusan daripada Lembaga Pengarah TNSB. Hakim Mahkamah Sesyen telah membenarkan permohonan Defendan Pertama seterusnya mengenepikan perlantikan Tetuan Alan Chua & Co bagi mewakili TNSB dalam guaman tersebut. iv. Kemudian pada 18.3.2014, Defendan Pertama telah mengeluarkan suatu Notis Mesyuarat Lembaga Pengarah yang bagi mesyuarat diadakan pada 22.3.2014 untuk mengusulkan perkara-perkara berikut: (a) Defendan Pertama dilantik untuk mengendalikan perniagaan dan menguruskan syarikat tersebut secara perseorangan (solely). (b) Defendan Pertama diberikuasa yang penuh/mutlak untuk mengendalikan dan menjalankan urusan perniagaan TNSB. (c) penandatangan bagi akaun TNSB di RHB Bank Berhad No. Akaun 21227300041533 diberi kepada Defendan Pertama dan Defendan Kedua. (d) Plaintif adalah diarah untuk terus membantu dan melaporkan kepada Defendan Pertama segala perkara berkenaan dengan pengurusan TNSB. (e) Plaintif adalah diarah untuk mengesahkan akaun syarikat tersebut dalam tulisan dan memberikan segala wang, buku cek dan perkara yang berkenaan kepada Defendan Pertama. (f) memberikan kuasa kepada Defendan Kedua untuk menggantikan perkhidmatan Tetuan Alan Chua & Co dan membenarkan syarikat tersebut untuk berbincang dengan Defendan Pertama untuk menyelesaikan kes sivil yang difailkan terhadap syarikat tersebut. v. Berikutan itu, Plaintif telah memulakan tindakan terhadap Defendan Pertama, Defendan Kedua dan TNSB dengan memfailkan Kandungan 1 menurut seksyen 181 Akta Syarikat 1965. Di dalam Kandungan 1, Plaintif memohon antara lain untuk perintah-perintah berikut: (1) Satu deklarasi bahawa Defendan Pertama dan/atau Defendan Kedua samada secara bersesama dan/atau berasingan: (a) Bertindak dengan cara yang menindas pada dan/atau tidak mengambil kira dan/atau tidak merampas kepentingan Plaintif sebagai ahli syarikat tersebut dalam menjalankan atau mengambilalih urusan Defendan Ketiga (syarikat tersebut) daripada Plaintif tanpa sebab yang munasabah dan mengenepikan kepentingan Defendan Ketiga; (b) Telah menjalankan dan/atau menyebabkan ia dilaksanakan dan/atau mengugut untuk menjalankan atau menyebabkan ia dilaksanakan pada Plaintif yang telah dan/atau akan secara tidak adil mendiskriminasikan terhadap atau yang akan sebaliknya memprejudiskan pada Plaintif sebagai seorang ahli syarikat tersebut; (c) Tetuan Alan Chua & Co dikekalkan sebagai peguamcara Defendan Ketiga untuk mengendalikan kes di Mahkamah Sesyen di Shah Alam B52NCVC-87-11/2013 sehingga pelupusan kes tersebut berikutan dengan kes tersebut di tahap perbicaraan kini. (2) Satu Perintah Menghalang Defendan-Defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan Pertama dan Defendan Kedua berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 dengan niat untuk melemahkan kepentingan Plaintif ke atas Syarikat tersebut. (penekanan oleh Mahkamah ini) (3) Akibat daripada Perenggan (1) di atas 3.1 Suatu Perintah bahawa Defendan Pertama dan/atau Kedua membeli saham-saham yang dipegang oleh Plaintif. (4) Secara alternatif pada perenggan (3) di atas, suatu perintah bahawa syarikat tersebut digulung menurut S.181(2) (e) Akta Syarikat 1965. vi. Pada masa yang sama juga, Plaintif telah memfailkan Kandungan 3 memohon untuk satu perintah injunksi ex parte untuk menghalang Defendan Pertama dan Defendan Kedua dari meneruskan mesyuarat yang dijadualkan pada 22.3.2014. vii. Kedua-dua Kandungan 1 dan Kandungan 3 telah ditetapkan untuk perbicaraan di hadapan Yang Arif Pesuruhjaya Kehakiman Tuan Mohamed Zaini bin Mazlan pada 12.11.2014. Pada 4.12.2014, Plaintif telah menarik balik permohonan Kandungan 3 dan Yang Arif Tuan Mohamed Zaini telah kemudian menolak Kandungan 3 Plaintif dengan kos dibayar kepada Defendan-Defendan. Pada tarikh yang sama, Yang Arif Tuan Mohamed Zaini telah juga memutuskan bahawa Kandungan 1 Plaintif ditolak dengan kos. Plaintif yang tidak berpuashati atas keputusan tersebut telah memfailkan notis rayuan ke Mahkamah Rayuan 22.12.2014 merayu terhadap keputusan Pesuruhjaya Kehakiman tersebut. [3] Justeru, sementara penyelesaian rayuannya terhadap Kandungan 1 didengar oleh Mahkamah Rayuan, Kandungan 28 ini, telah difailkan oleh Plaintif bagi memohon satu injunksi Erinford bagi menghalang Defendan-defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan, atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan-Defendan berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 ke atas TNSB. [4] Undang-undang dan prinsip mengenai injunksi Erinford ini adalah jelas dan jitu. Injunksi Erinford yang merupakan remedi ekuiti ini adalah mengambil nama sempena kes Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448 di mana telah diputuskan bahawa bagi mengekalkan status quo sementara menunggu penyelesaian rayuan, mahkamah masih mempunyai bidang kuasa untuk membenarkan satu perintah injunksi walaupun pada peringkat pertama mahkamah telah menolak atau melepaskan sesuatu perintah injunksi. Perintah injunksi sebegini dipanggil injunksi Erinford. Di dalam memutuskan bidang kuasa mahkamah bagi remedi ekuiti ini, Megarry J di dalam kes Erinford Properties di muka surat 454 penghakimannya berkata berikut: “ On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given in one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judge must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly, consistently with his decision, recognize that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all. There may, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)1, where speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his indoubted right of appeal, this court ought to see that appeal, if successful, is not nugatory’. That was the principle which Pennyquick J applied in the Orian case2; and although the cases had not then been cited to me, it was on that principle, and not because I felt any real doubts about my judgment on the motion, that I granted counsel for the plaintiffs the limited injunction pending appeal that he sought. This is not a case in which damages seem to me to be a suitable alternative.” (penekanan oleh Mahkamah ini) [5] Adalah juga suatu yang jelas dan jitu bahawa prinsip yang telah diutarakan di dalam kes Erinford Properties ini telah diikuti oleh mahkamah-mahkamah di Malaysia. Ini dapat dilihat dengan merujuk kepada beberapa kes yang telah diputuskan. [6] Di dalam kes Chellapa a/l Kalimuthu v Sime UEP Properties Bhd [1998] 1 MLJ 20, rujukan telah dibuat oleh Mahkamah Rayuan kepada Interlocutory Injunctions oleh Tan Woon Tiang dan Koh Kok Wah (Butterworths Asia, 1992) pada muka surat 28 di mana Mahkamah Rayuan di muka surat 26 dan 27 penghakimannya, menyatakan berikut: “The kind of prejudice contemplated which will require interim relief has been aptly summarized in Interlocutory Injunctions by Tan Woon Tiang dan Koh Kok Wah (Butterworths Asia, 1992) at page 28. It reads: On the principle that an appellant must not be deprived of the results of an appeal, the country may grant an injunction pending appeal to restrain an act which will render the appeal nugatory (see Orion Property Trust Ltd). Even if an ex parte application for an interlocutory injunction is dismissed, the country may nonetheless grant an injunction pending the appeal against dismissal of the application (see Erinford Properties Ltd; Dickson Trading; Tun Datu Haji Mustapha bin Datu Harun). … Such injunction pending appeal have been called Erinford injunction after the Erinford case. An Erinford injunction will be granted only where there is a likelihood of a successful appeal being rendered nugatory or if the plaintiff would not be adequately compensated in damages for temporary damage between the date of hearing and the date when its appeal is heard (Cocoa Processors) … The court has a discretion to grant an injunction and order a stay pending appeal if that is necessary to ensure that the appeal will not be academic (see Minnesota Mining Co; Kuttikevundaw).” [7] Di dalam kes Marina bte Mohd Yusoff v Pekeliling Triangle Sdn Bhd [2008] 1 CLJ 333, di dalam mengesahkan wujudnya bidang kuasa mahkamah di dalam membenarkan satu perintah injunksi atas penolakan suatu permohonan injunksi interlokutori sementara penyelesaian rayuan terhadap penolakan tersebut, di perenggan [31] penghakimannya, Mahkamah Rayuan telah berkata berikut: “[31] We will first consider the third appeal. It is well settled that the court has jurisdiction on dismissal of an application for an interlocutory injunction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal. The principle governing the grant of the said injunction, known as an Erinford injunction, was set out by Meggary J, in Erinford Properties Ltd v Cheshire County Counsel [1974] 2 All ER 448, at p 454, as follows: There will, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)(1879-1980) 12 Ch D454, where speaking of an appeal from the Court of Appeal to the House of Lords, he said at p 458, … when a party is appealing, exercising his indoubted right of appeal, this court ought to see the that the appeal, if successful, is not nugatory.’ That was the principle which Pennycuick J applied in the Onion case [1962] 1 WLR 1085 and although the case had not been cited to me, it was on that principle, and not because I felt any doubts about my judgment on the motion, that I granted Mr. Newsom the limited injunction pending appeal that he sought. This is not a case which damages seem to me to be a suitable alternative.” [8] Di dalam kes Subashini Rajasingam v. Saravanan Thangathoray (No. 2) [2007] 4 MLJ 97 pula telah diputuskan antara lain oleh Mahkamah Rayuan bahawa: “…In the absence of a statutory provision prohibiting the application of developments in English law after 7 April 1956, a Malaysian court is entitles to apply cases decided in England after that date. Furthermore, in reference to case of Wilson v. Church, if in 1879 equitable jurisprudence recognised jurisdiction to grant an injunction pending appeal, then, even accepting the submission of the respondent, this was a principle established before 1956 and was in existence at the cut-off date. Hence, the Malaysian courts may safely exercise the power under discussion without even referring to Erinford Properties (supra) and by so doing, be complaint with the direction contained in s.3 of the 1956 Act. Since there is no statutory prohibition against the issuing of an injunction pending appeal, this court had both the jurisdiction and power to issue such an injunction preserving the status quo until the outcome of the appellant’s leave application. (paras 5 & 6) (3) The injunction that was dissolved by this court was one that held the parties to the status quo pending an appeal to this court. The order now being sought was one that sought to preserve what Lord Diplock in Garden Cottage Foods Ltd v. Milk Marketing Board termed as “the dynamic status quo” pending the appellant’s application for leave to the Federal Court. The issue before this court in the respondent’s appeal was whether, having regard to the interpretation given to the several pertinent statutory provisions already discussed in the earlier judgments, the holding over injunction ought to remain. That question was naturally answered in the negative by the majority judgments because the appellant’s appeal failed. However, the question before this court on the present motion was quite different, it being whether the status quo presently prevailing should remain undisturbed until the correctness of this court’s decision had been tested at the next level. So it was quite wrong to treat the motion for the present interim preservation orders as an application to review this court’s earlier ruling. It was not. (para 7) …” [9] Di dalam kes Marina bte Mohd Yusoff juga, telah diputuskan oleh Mahkamah Rayuan bahawa ujian-ujian yang terpakai dalam mempertimbangkan samada injunksi Erinford boleh dibenarkan atau tidak, selain daripada ujian samada rayuan perayu akan menjadi sia-sia jika injunksi Erinford tidak dibenarkan, ujian atau prinsip-prinsip bagi membenarkan atau tidak sebarang permohonan untuk perintah injunksi interlokutori adalah terpakai sama terhadap sesuatu permohonan untuk injunksi Erinford. Ini telah dinyatakan oleh Makkamah Rayuan di dalam penghakimannya di perenggan [32] muka surat 333 seperti berikut: “ [32] Apart from the test whether there is a likelihood of a successful appeal being rendered nugatory, in our view the principle governing the grant of an interlocutory injunction are equally applicable to the grant of an Erinford injunction. Any application for an Erinford injunction must involve considerations of the overall justice of the case and as to whether damages being an adequate remedy. We have earlier held that the learned judge has rightly applied s 72 of the Act in refusing the interlocutory injunction sought by MY. In our view the grant of the Erinford injunction by the learned judge would seem to run foul of the said s 72 as it has the like effect of restraining the action taken or proposed to be taken by Danaharta Urus or its servants or agents over the assets of PTSB.” (penekanan oleh Mahkamah ini) [10] Mahkamah Rayuan pula di dalam kes Keet Gerald Francis Noel John v. Mohd Noor & Ors [1995] 1 CLJ 293 telah menggariskan ujian 3 peringkat “3 stage test” yang harus dipertimbangkan oleh mahkamah atau hakim di dalam sesuatu permohonan untuk perintah injunksi interlokutori yakni: "[3] A Judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines: (a) firstly, he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried; (b) having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case; (c) the Judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo.” [11] Justeru itu pada asasnya walaupun mahkamah pada peringkat pertama telah memutuskan bahawa permohonan untuk injunksi tidak berjaya, ia masih mempunyai bidang kuasa untuk membenarkan suatu perintah injunksi Erinford bagi pengekalan status quo sementara menunggu penyelesaian rayuan terhadap penolakan permohonan untuk suatu perintah injunksi. Namun demikian bagi menimbangkan samada injunksi Erinford boleh dibenarkan atau tidak, selain daripada ujian samada kemungkinan kejayaan rayuan akan menjadi sia-sia dan pertimbangan keadilan secara menyeluruh (considerations of the overall justice of the case), ujian-ujian yang telah digariskan di dalam sesuatu permohonan injunksi interlokutori adalah terpakai sama. [12] Di dalam permohonannya untuk satu injunksi Erinford, Plaintif di dalam afidavit-afidavitnya telah membangkitkan alasan utamanya menghalang perlaksanaan usul-usul yang telah dicadangkan oleh Defendan-defendan pada mesyuarat yang akan dijalankan pada 22.3.2014 adalah keenam-enam usul itu akan melemahkan kepentingannya di dalam Defendan Ketiga dan Defendan Pertama dan Defendan Kedua akan melakukan tindakan-tindakan yang akan menghancurkan Defendan Ketiga. [13] Defendan-defendan pula di dalam menentang permohonan Plaintif, ini telah menimbulkan dua alasan yakni: (a) Plaintif tidak berhak kepada satu injunksi Erinford kerana Plaintif tidak memenuhi asas utama sesuatu permohonan untuk injunksi Erinford yakni pada peringkat pertama mahkamah tidak wujud sebarang permohonan untuk injunksi interlokutori yang telah ditolak atau dilepaskan. (b) Plaintif gagal memenuhi kehendak-kehendak suatu perintah injunksi Erinford. Alasan (a): Asas utama bagi suatu permohonan injunksi Erinford tidak dipenuhi oleh Plaintif kerana perintah penolakan permohonan injunksi interlokutori di peringkat pertama tidak ada [14] Peguam Defendan-defendan telah menghujahkan bahawa permohonan Kandungan 3 Plaintif untuk injunksi menghalang Defendan-defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan, atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan-defendan berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 ke atas TNSB telahpun ditarikbalik oleh Plaintif pada 4.12.2014. Menurut peguam Defendan-defendan dengan penarikan balik Kandungan 3 tersebut oleh Plaintif, maka asas suatu injunksi Erinford yakni mesti wujud pada peringkat pertama mahkamah satu perintah menolak permohonan untuk perintah injunksi interlokutori atau perintah melepaskan perintah injunksi tidak wujud. Makanya di dalam kes ini, pihak Plaintif dihujahkan telah tidak memenuhi keperluan asas utama tersebut. Untuk menyokong hujahannya, peguam Defendan-defendan telah bersandar kepada kes-kes i. Jawi AK Sunny Inspiration Sdn Bhd And Anor [2007] 8 MLJ 38, ii. Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd ( No.2) [2002] 3 165 CLJ. [15] Di dalam hal ini saya bersependapat dengan peguam Plaintif bahawa Kandungan 3 yang memohon injunksi ex parte telah ditarikbalik oleh Plaintif atas alasan bahawa relif yang sama telahpun dipohon oleh Plaintif di dalam Saman Pemula Kandungan 1 di perenggan 2, Kandungan 1. Maka, walaupun Kandungan 3 Plaintif telah ditarik balik, namun memandangkan di perenggan 2, Kandungan 1 Plaintif sememangnya memohon perintah injunksi menghalang Defendan-defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan, atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan-Defendan berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 ke atas TNSB. Adalah menjadi dapatan saya bahawa apabila YA Pesuruhjaya Kehakiman menolak Kandungan 1 pada 4.12.2014 terdapatnya satu permohonan untuk satu perintah injunksi dan permohonan itu telah ditolak oleh mahkamah. Berbeza dengan kes Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ 575, di dalam kes di hadapan Mahkamah ini memang terdapat permohonan di perenggan 2 Saman Pemula (Kandungan 1) Plaintif untuk satu perintah injunksi terhadap Defendan-defendan. Justeru, bagi Mahkamah ini, alasan (a) yang ditimbulkan oleh Defendan-defendan adalah tidak berasas. Alasan (b): Plaintif gagal memenuhi kehendak-kehendak suatu perintah injunksi Erinford. [16] Seperti yang dinyatakan awal tadi, Plaintif di dalam memohon injunksi Erinford ini bagi menghalang Defendan-defendan dari melaksanakan usul-usul mesyuarat Lembaga Pengarah yang dijadualkan pada 22.3.2014 berdasarkan alasan utamanya bahawa sekiranya Defendan-defendan tidak dihalang daripada melaksanakan keenam-enam usul yang dicadangkan kepentingan-kepentingan Plaintif di dalam TNSB akan dilemahkan dan Defendan Pertama dan Defendan Kedua akan melakukan tindakan-tindakan yang akan menghancurkan Defendan Ketiga. Isu-isu serius untuk dibicarakan Usul (f) [17] Afidavit-afidavit Defendan-defendan menafikan versi yang didakwa oleh Plaintif. Defendan Pertama menafikan bahawa ia telah berhenti kerja dan kononnya Plaintif telah mengambil alih tugas-tugasnya sejak September 2013. Adalah pengataan Defendan Pertama bahawa beliau tidak pernah berhenti kerja dari TNSB dan sehingga kini masih terus bekerja dengan TNSB. Apa yang beliau lakukan adalah mengambil tindakan terhadap TNSB iaitu menuntut saraan dan gajinya sebagai Pengarah yang tidak dibayar oleh TNSB sejak September 2013. Guaman sivil tersebut masih berjalan kerana tiada perintah yang dipohon oleh mana-mana pihak untuk menggantungkan guaman sivil tersebut dan juga perintah mengenepikan perlantikan Tetuan Alan & Co di dalam guaman tersebut. Maka, adalah dihujahkan oleh Defendan-defendan bahawa usul (f) bagi memberikan kuasa kepada Defendan Kedua untuk menggantikan perkhidmatan Tetuan Alan Chua & Co bukanlah menjadi isu di dalam Kandungan 1. [18] Mahkamah ini bersetuju dengan hujahan peguam Defendan-defendan bahawa usul (f) bukanlah isu di dalam kes ini kerana permohonan Defendan Pertama untuk mengenepikan perlantikan Tetuan Alan Chua & Co bagi mewakili TNSB di dalam guaman sivil di Mahkamah Sesyen telah dibenarkan oleh Hakim Mahkamah Sesyen. Perintah itu masih berkuatkuasa kerana tiada permohonan untuk penangguhan perintah tersebut. Pengataan Plaintif bahawa YA Vernon Ong pada 3.4.2014 telah mengarahkan pihak-pihak untuk mengekalkan status asal pihak-pihak sehingga penyelesaian kes injunksi atau Saman Pemula termasuk perintah yang dikeluarkan oleh Hakim Mahkamah Sesyen tidak dapat diterima oleh Mahkamah ini. Pertama, jika melihat minit yang direkodkan pada tarikh 3.4.2014 adalah: “Injunction to maintain status quo of company. Pending disposal of Enclosure 3.” Pembacaan atas minit ini, status quo yang tertera adalah status quo syarikat dan bukanlah perintah Hakim Mahkamah Sesyen (HMS) yang mengenepikan perlantikan Tetuan Alan Chua & Co tersebut (keputusan HMS tersebut); Kedua, jika YA Vernon Ong bermaksud untuk memasukkan sekali perintah tersebut, pasti penyataan spesifik mengenainya akan direkodkan. Ketiga, walaupun, terdapat rayuan difailkan terhadap keputusan HMS, namun tidak ada perintah untuk menangguhkan perintah tersebut. Justeru itu, adalah dapatan Mahkamah ini tidak ada sebab untuk menghalang perlaksanaan usul (f) kerana dengan adanya perintah Mahkamah Sesyen yang telah mengenepikan perlantikan Tetuan Alan Chua & Co atas alasan ketiadaan resolusi bagi perlantikan tersebut, makanya isu penggantian peguamcara bukanlah satu isu, jauh sekali isu serius yang dipertikaikan di dalam permohonan di hadapan Mahkamah ini. [19] Menurut Defendan-defendan lagi, Notis Mesyuarat yang dikeluarkan pada 18.3.2014 adalah Notis Mesyuarat Lembaga Pengarah TNSB pada 22.3.2014 dan bukanlah satu mesyuarat pemegang-pemegang saham untuk meluluskan resolusi-resolusi yang akan menjejaskan kedudukan Plaintif sebagai pemegang saham majoriti sebanyak 40%. Mesyuarat yang akan dijalankan adalah mesyuarat pengurusan syarikat yang dihadiri oleh pengarah-pengarah syarikat TNSB termasuk Plaintif sendiri di mana Lembaga Pengarah membincangkan usul-usul bagi menguruskan perniagaan TNSB. Menurut Defendan-defendan seterusnya kalau dilihat usul jelas bahawa (a) sehingga (e), usul-usul yang dibawa adalah semata-mata bagi tujuan pengurusan perniagaan dan urusan kewangan TNSB. (Defendan Pertama dilantik untuk mengendalikan perniagaan dan menguruskan syarikat tersebut secara perseorangan (solely), Defendan Pertama diberikuasa yang penuh/mutlak untuk mengendalikan dan menjalankan urusan perniagaan TNSB, penandatangan bagi akaun TNSB di RHB Bank Berhad No. Akaun 21227300041533 diberi kepada Defendan Pertama dan Defendan Kedua, Plaintif adalah diarah untuk terus membantu dan melaporkan kepada Defendan Pertama segala perkara berkenaan dengan pengurusan TNSB dan Plaintif adalah diarah untuk mengesahkan akaun syarikat tersebut dalam tulisan dan memberikan segala wang, buku cek dan perkara yang berkenaan kepada Defendan Pertama.) [20] Adalah menjadi hujahan Defendan-defendan bahawa usul-usul yang dicadangkan tidak akan menjejaskan langsung hak mana-mana pemegang saham Defendan Ketiga apatah lagi kedudukan Plaintif sebagai pemegang saham majoriti. Di dalam afidavit-afidavit Plaintif, menurut Defendan-defendan tidak ada keterangan langsung yang dikemukakan oleh Plaintif yang menunjukkan sebarang usul untuk melucutkan Plaintif daripada menjadi pengarah Defendan Ketiga. [21] Di dalam hal dakwaan Plaintif yang haknya sebagai pemegang saham Defendan Ketiga mahupun kedudukan beliau sebagai pengarah akan dijejaskan atau dilemahkan kepentingannya dalam Defendan Ketiga jika usul-usul itu diluluskan, Mahkamah ini bersependapat dengan Defendan-defendan bahawa dakwaan Plaintif tidak berasas kerana pertamanya, usul-usul tersebut tidak langsung menyentuh berkenaan hak pemegang saham-pemegang saham Defendan Ketiga ataupun akan kedudukan Plaintif sebagai pengarah syarikat. Keduanya, dengan ketiadaan keterangan dokumentar yang boleh menunjukkan tindak-tanduk mana-mana Defendan-defendan akan menjejaskan kedudukan Plaintif dan kepentingan Plaintif akan menjadi lemah, serta meneliti usul-usul tersebut, adalah menjadi dapatan Mahkamah ini bahawa tiada isu bona fide yang serius yang perlu dibicarakan di dalam hal ini. Malahan Mahkamah ini bersetuju dengan hujahan peguam Defendan-defendan bahwa Plaintif telah cuba mendapatkan bantuan mahkamah untuk menghalang pengarah-pengarah syarikat daripada menjalankan urusan syarikat dan menjalankan hak mereka sebagai pengarah bagi kepentingan syarikat. [22] Plaintif di dalam afidavit-afidavitnya juga telah cuba mendapatkan injunksi Erinford dengan membangkitkan bahawa terdapatnya isu yang serius di dalam kes ini dengan menimbulkan bahawa sekiranya kelima-lima usul (a) sehingga (e) diluluskan, Defendan Pertama akan memonopoli segala kuasa dari segi pengendalian urusan TNSB dan akan menyalahgunakan segala kuasa untuk kepentingan dirinya. Justeru, kononnya juga segala usaha Plaintif untuk menstabilkan serta mengurangkan kos-kos berpatutan bagi kepentingan syarikat akan menjadi sia-sia. Plaintif telah juga mendakwa bahawa beliau akan dilucutkan hak dalam sebarang jawatan dari TNSB dan perlakuan Defendan Pertama dan Kedua ke arah tersebut menurut Plaintif boleh dilihat apabila Defendan Pertama dan Kedua cuba memindahkan tempat perniagaan TNSB ke satu tempat lain. [23] Defendan-defendan telah menafikan pengataan-pengataan yang ditimbulkan oleh Plaintif dan menegaskan bahawa apa yang dinyatakan oleh Plaintif itu adalah suatu yang tidak berasas dan tidak benar sama sekali. Adalah dihujahkan oleh Defendan-defendan bahawa usul (a) sehingga (e) jika diluluskan akan menjadikan Plaintif dan Defendan Pertama dan Defendan Kedua sama-sama untuk menguruskan perniagaan TNSB. Malahan usul berkenaan penandatangan akaun bank RHB bukanlah diberikan kepada seorang pengarah tetapi dua pengarah yakni Defendan Pertama dan Defendan Kedua. Usul kelima pula adalah untuk mengarahkan Plaintif untuk mengesahkan penyata-penyata akaun yang enggan dikemukakan beliau sendiri sehinggakan pengarah-pengarah TNSB yakni Defendan Pertama dan Defendan Kedua dinafikan saraan dan gaji mereka. Sementara usul (f) mengenai penyelesaian guaman sivil yang dimulakan oleh Defendan Pertama pula akan menyelesaikan guaman sivil terhadap syarikat. Ini semua adalah untuk kepentingan dan faedah syarikat. [24] Mengenai pemindahan tempat perniagaan pula, menurut Defendan-defendan lagi sebenarnya, Plaintif telah tidak menzahirkan fakta sebenar bahawa premis perniagaan TNSB adalah premis Plaintif sendiri dan syarikat membayar sewaan sebanyak RM16,000.00 kepada Plaintif. Apabila Plaintif mengugut TNSB untuk menaikkan sewaan dua kali ganda kepada RM32,000.00, maka sewajarnya TNSB mencari premis lain sebagai alternatif iaitu premis yang lebih murah lagi demi kepentingan syarikat. [25] Mahkamah ini bersetuju dengan hujahan bagi peguam Defendan-defendan bahawa dakwaan yang Plaintif telah timbulkan terhadap Defendan-defendan adalah berbentuk spekulatif apabila Plaintif menggambarkan Defendan Pertama dan Defendan Kedua sebagai pihak yang akan menghancurkan syarikat. Walhal kalau dilihat kepada alasan Plaintif yang tidak mahu usul-usul tersebut dilaksanakan, Plaintif sebenarnya lebih memikirkan kedudukan dan mementingkan keuntungan beliau serta kebimbangan Plaintif akan kehilangan kawalan (control) atas syarikat atau saham atau pun kerugian ekonomi. [26] Di dalam hal ini, Mahkamah ini merujuk kepada kes See Teow Guan & Ors. v Liquidator of Kian Joo Holdings Sdn Bhd (In Liquidation) & Ors [2008] 1 CLJ 218 di mana telah diputuskan oleh Mahkamah Rayuan antara lain bahawa kebimbangan kehilangan kawalan saham dan kerugian ekonomi bukanlah menjadi isu serius yang perlu dibicarakan. Di perenggan 18 penghakimannya Mahkamah Rayuan berkata berikut: “[18] It was of the court’s view that there was total failure on the part of the applicants to establish that there were serious questions to be tried which warranted such an injunction. As stated above, the fear of losing control of the shares, and suffering certain economic losses, did not qualify as serious questions to be tried. To make matters worse there was inordinate and inexcusable delay in filing this motion, in the light of the appeal having been filed in August 2003 whilst this motion being filed in 2007. In fact there was also no evidence adduced in the applicants’ affidavit. i. showing that damages would be inadequate compensation for their losses; and ii. no evidence adduced to show their capacity and capability of honouring their financial undertaking as to damages (Brigid Foley Ltd v. Elliot [1982] RPC 433; Keet Gerald Francis Noel John v. Mohd Noor & Ors [1995] 1 CLJ 293; Cheah Theam Swee & Anor v. Overseas Union Bank Ltd & Ors [1989] 1 CLJ 157; [1989] 1 CLJ (Rep) 386).” [27] Malahan Mahkamah Rayuan di dalam kes See Teow Guan juga telah memutuskan bahawa sekadar kebimbangan dan sentimen bukanlah boleh menjadi hal keadaan yang istimewa pun. Telah diputuskan oleh Mahkamah Rayuan begini: “… Their decision to sell the shares at the best possible price would benefit every shareholder including the applicants. The court here was not about to interfere with the liquidators’ decision simply because its opinion might differ from that of the liquidators. Here, not only had the liquidators not shown bad faith or committed perverse errors but, as per the supporting affidavit, the applicants had also not adduced any evidence that such sale would cause irreparable damage to them. The intention of the applicants’ late father to have the shares retained by the family coupled with the fear of losing them were inextricably interwined to the fear of suffering the loss in value of the investment and were, regretfully, not special circumstances. Mere fear and sentimentality certainly do not qualify as persuasive grounds construable as special circumstances. The applicants also did not explain the delay of four years, since 13 June 2003, to apply for this injunction order. They had filed the notice of appeal on 3 July 2003 and the appeal records were filed on 26 August 2003. Despite the clarity of s. 73 of the CJA legislating that an appeal shall not operate as a stay, the applicants took no steps whatsoever for four years to apply for this order. The unexplained delay of four years was inordinate and inexcusable, and in the circumstances of this case, quite fatal to the applicants’ motion. Furthermore, there was also no evidence adduced in the applicants’ affidavit: (i) showing that damages would be inadequate compensation for their losses; and (ii) showing their capacity and capability or honouring their financial undertaking as to damages. Hence, in the circumstances, there was total failure on the part of the applicants to establish that there were serious questions to be tried which warranted such an injunction. (paras 14, 15, 16 & 18)” [28] Mengambil iktibar dan panduan Mahkamah Rayuan di dalam kes See Teow Guan, walaupun kes See Teow Guan adalah permohonan pemohon bertujuan menghalang tindakan penyelesai-penyelesai syarikat yang telah digulungkan dan bukannya pengarah-pengarah syarikat sendiri seperti di dalam kes di hadapan Mahkamah ini, namun Mahkamah Rayuan telah memutuskan apa yang dilakukan penyelesai-penyelesai syarikat adalah untuk faedah semua pemegang saham termasuklah pemohon. Jadi apatah lagi di dalam kes ini, Defendan Pertama dan Defendan Kedua adalah pemegang saham dan pengarah syarikat sudah pastinya mereka tidak mahu menghancurkan Defendan Ketiga kerana dengan berbuat demikian kepentingan mereka di dalam Defendan Ketiga akan terjejas dan dimudaratkan sama. Namun walau apapun, seperti yang Mahkamah ini awal tadi telah menerangkan bahawa tiada sebarang keterangan pun di hadapan Mahkamah ini bahawa keenam-enam usul tersebut akan membawa kepada kebimbangan yang dibangkitkan oleh Plaintif. [29] Berdasarkan alasan-alasan yang di atas adalah dapatan Mahkamah ini bahawa tidak ada isu-isu bona fide yang serius untuk dibicarakan di dalam kes ini. Gantirugi adalah remedi yang memadai [30] Plaintif mendakwa bahawa gantirugi bukanlah remedi yang tidak sesuai dan memadai dan maka injunksi Erinford ini diperlukan. Jelas di dalam kes ini apa yang dikhuatiri Plaintif adalah pemegangan sahamnya yang kesannya berbentuk kewangan ataupun monetary yakni nilai saham yang dipegang Plaintif dalam Defendan Ketiga di mana Plaintif sendiri di dalam Saman Pemulanya (Kandungan 1) telah memohon perintah supaya saham Defendan dinilaikan oleh penilai yang bebas. Malahan, di dalam Kandungan 1, antara relif utama yang dipohon oleh Plaintif daripada mahkamah adalah perintah supaya Defendan Pertama dan/atau Defendan Kedua membeli saham-saham yang dipegangnya pada suatu nilai yang adil merepresentasikan suatu bahagian yang bersamaan pada jumlah modal saham yang diterbitkan oleh syarikat. Relif supaya Defendan Ketiga digulungkan hanya merupakan relif alternatif sahaja. [31] Adalah fakta yang sangat jelas bahawa nilai saham Plaintif boleh diukur dan kerugian boleh dinilaikan. Di samping itu, pandangan Mahkamah ini, kekhuatiran dan kebimbangan yang ada pada Plaintif bukanlah sangat kepada diskriminasi Defendan Pertama dan Defendan Kedua terhadap Plaintif, mahupun kepentingan Plaintif di dalam syarikat akan dilemahkan ataupun Defendan Pertama dan Defendan Kedua akan menghancurkan syarikat tetapi apa yang sebenarnya dikhuatiri oleh Plaintif adalah samada beliau mendapat pulangan yang adil dan berpatutan atas pemegangan sahamnya di dalam Defendan Ketiga. Dalam erti kata lain, bukanlah kedudukan syarikat, nasib syarikat, kemudaratan syarikat atau masa hadapan syarikat yang menjadi keutamaan Plaintif tetapi berapa jumlah dan nilaian syarikat yang patut diterima oleh Plaintif daripada saham yang dipegangnya. Justeru, daripada penelitian fakta ini mahkamah tidak dapat lari dari membuat kesimpulan bahawa gantirugi sememangnya merupakan remedi yang memadai. Rayuan Plaintif akan menjadi sia-sia. [32] Dakwaan Plaintif bahawa usul-usul tersebut jika dilaksanakan akan memprejudis dan mendiskriminasikan haknya sebagai pemegang saham. Plaintif, telah membangkitkan perkara-perkara di perenggan 20 (a) sehingga (f) Afidavit Sokongannya ( Kandungan 2) antara lain seperti kos penyelenggaran mesin yang tinggi akan ditanggung oleh Defendan Ketiga sekiranya kerja-kerja penyelenggaraan diberikan kepada syarikat Ikatan Sarjana Sdn Bhd yang ada kaitan dengan Defendan Pertama, kebarangkalian pemindahan premis perniagaan Defendan Ketiga ke premis baru yang akan memakan kos yang tinggi, penghentian operasi syarikat akan memudaratkan produktiviti syarikat dan jika perkara-perkara ini berlaku ia akan menjadikan rayuan Plaintif ke Mahkamah Rayuan akan menjadi sia-sia dan perkara-perkara itu tidak boleh kembali kepada keadaan asalnya. [33] Di dalam hal-hal yang dibangkitkan oleh Plaintif di dalam perenggan 20 tersebut, Mahkamah ini bersetuju dengan hujahan peguam Defendan-defendan bahawa perkara-perkara yang didakwa Plaintif tersebut adalah bersandarkan kepada satu yang spekulatif dan bukanlah bersandarkan kepada mana-mana keterangan yang dapat menunjukkan Defendan-defendan telah mengambil langkah-langkah untuk melakukannya dan wujudnya potensi perkara-perkara tersebut akan berlaku. Kalau iapun ianya berlaku yang mana sebahagian besarnya adalah melibatkan pengurusan dan operasi syarikat yang akhirnya akan membawa kesan jumlah wang ringgit dan samada untung atau rugi. Maka kegusaran Plaintif sekali lagi mengenai keuntungan atau kerugian wang yang akan dialami. Di dalam hal ini juga, Mahkamah ini berpandangan kalaupun Defendan Pertama dan/atau Defendan Kedua melaksanakan usul-usul tersebut sebagai pemegang saham dan pengarah syarikat yang mempunyai kepentingan di dalam Defendan Ketiga tidak mungkin kedua-dua mereka mahukan syarikat mengalami kerugian dan kemudaratan semata-mata berniat kononnya mahu melemahkan kepentingan Plaintif di dalam Defendan Ketiga dan mendiskriminasi Plaintif. Sedangkan kedua mereka tahu Plaintif adalah salah seorang pengarah dan pemegang saham terbesar Defendan Ketiga yang mana kepentingan Plaintif sebagai pengarah dan pemegang saham serta perlaburan Plaintif di dalam Defendan Ketiga tidak boleh diketepikan begitu sahaja. [34] Malahan daripada afidavit-afidavit Plaintif tiada keterangan langsung yang dikemukakan untuk membuktikan bahawa ada atau wujudnya apa-apa unsur diskriminasi dan kesan prejudis yang boleh dikaitkan dengan usul-usul yang dicadangkan di dalam Mesyuarat Lembaga Pengarah yang dijadualkan pada 22.3.2014. Imbangan kemudahan (keselesaan) [35] Berdasarkan alasan-alasan di atas imbangan kemudahan adalah memihak kepada Defendan-defendan atas pertimbangan keseluruhannya dan demi keadilan kes, Defendan Pertama dan Defendan kedua sebagai pengarah syarikat lebih-lebih lagi Defendan Ketiga sebagai sebuah syarikat tidak boleh diganggu daripada menjalankan operasi dan pengurusan Defendan Ketiga yang sekiranya Mahkamah ini membenarkan injunksi Erinford ini kemudaratan akan diakibatkan kerana Defendan Ketiga tidak dapat berfungsi dengan baik serta lancar yang akan lebih mendatangkan kerugian yang lebih besar berbanding dengan kebajikan Plaintif hanya bersandarkan dengan kekhuatiran dan kebimbangannya atas kerugian yang akan ditanggungnya, jika ada di kemudian hari kelak. Keputusan Mahkamah [36] Berdasarkan alasan-alasan di atas, Kandungan 28 Plaintif ditolak dengan kos. Kos [37] Bagi isu kos pula, setelah mendengar hujahan ringkas pihak-pihak, Mahkamah ini memerintahkan Plaintif membayar kos sebanyak RM8000.00 kepada Defendan Pertama dan Kedua, manakala bagi Defendan Ketiga kos sebanyak RM2000.00 hendaklah dibayar oleh Plaintif kepada Defendan Ketiga. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 5hb Mac 2015 Peguam Plaintif - Tetuan Markiman & Associates Encik Kanaga Sundran & Encik Siva Ganish Peguam Defendan 1 & 2 - Tetuan Ram Yogan Sivam Encik Yogan Encik Raja Peguam Defendan 3 - Tetuan Param Magdaline & Associates Encik Saraan Nadarajah 39

Tika 2.6.0

24NCC-36-03/2014

PLAINTIF KHOO KHEE CHEONG DEFENDAN 1. CHEN AH MENG 2. GOH KING HIONG 3. THIEN NAM SDN BHD

05/03/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=46445431-ffd0-4f71-96c7-3b94756325c4&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO.24NCC-36-03/2014 Dalam Perkara THIEM NAM SDN BHD (NO. SYARIKAT 389367-H) Dan Dalam Perkara Seksyen 181 Akta Syarikat 1965 Dan Dalam Perkara Aturan-Aturan 7 dan 88 Kaedah-Kaedah Mahkamah 2012 ANTARA KHOO KHEE CHEONG … PLAINTIF DAN 1. CHEN AH MENG … DEFENDAN- 2. GOH KING HIONG DEFENDAN 3. THIEN NAM SDN BHD ALASAN PENGHAKIMAN (Kandungan 28) [1] Plaintif (Khoo Khee Cheong) pada 7.1.2015 telah memfailkan Kandungan 28 ini untuk mendapat satu injunksi Erinford apabila permohonannya di dalam Saman Pemula (Kandungan 1) bagi beberapa relif injunksi dan deklarasi telah ditolak oleh Mahkamah pada 4.12.2014. [2] Bagi menentukan samada injunksi Erinford yang dipohon oleh Plaintif boleh dibenarkan dibenarkan atau tidak, fakta latar belakang kes ini molek diperturunkan bagi memberi gambaran jelas apa yang berlaku sebenarnya sehingga tercetusnya permohonan di Kandungan 1 sehingga pemfailan Kandungan 28 ini. i. Plaintif adalah pemegang saham majoriti di dalam syarikat bernama Thien Nam Sdn Bhd (TNSB) yakni Defendan Ketiga. Manakala Chen Ah Meng (Defendan Pertama) dan Goh Kin Hiong (Defendan Kedua) adalah juga pemegang-pemegang saham di dalam TNSB. Kedua-dua Defendan Pertama dan Kedua adalah merupakan pengarah-pengarah TNSB. Plaintif mendakwa bahawa telah dipersetujui oleh pemegang-pemegang saham yang Plaintif akan mengendalikan segala urusan pentadbiran kewangan dan hal ehwal harian TNSB, manakala Defendan Pertama pula akan menguruskan penyelenggaraan mesin-mesin TNSB. Defendan Kedua pula adalah seorang warganegara Singapura dan menetap di Singapura. ii. Adalah menjadi dakwaan Plaintif juga bahawa pada sekitar September 2013 Defendan Pertama telah berhenti dari TNSB dan urusan pengendalian mesin diambil alih oleh beliau sejak Defendan Pertama berhenti kerja. Pada bulan November 2013 Defendan Pertama telah memfailkan satu tindakan di Mahkamah Sesyen Shah Alam terhadap TNSB di dalam guaman sivil No. B52NCVC-87-11/2013 (guaman tersebut) bagi menuntut gaji beliau sebagai pengarah yang tidak dibayar oleh TNSB sejak September 2013. iii. Plaintif yang mendakwa segala urusan pentadbiran TNSB adalah dijalankan oleh beliau, telah kemudiannya melantik firma peguamcara yang beramal atas nama Tetuan Alan Chua & Co mewakili TNSB untuk membela tindakan terhadap TNSB dalam guaman tersebut. Defendan Pertama yang membantah perlantikan Tetuan Alan Chua & Co telah memfailkan satu permohonan di dalam guaman tersebut membantah perlantikan Tetuan Alan Chua & Co atas alasan perlantikan peguamcara itu telah dibuat tanpa resolusi dan kelulusan daripada Lembaga Pengarah TNSB. Hakim Mahkamah Sesyen telah membenarkan permohonan Defendan Pertama seterusnya mengenepikan perlantikan Tetuan Alan Chua & Co bagi mewakili TNSB dalam guaman tersebut. iv. Kemudian pada 18.3.2014, Defendan Pertama telah mengeluarkan suatu Notis Mesyuarat Lembaga Pengarah yang bagi mesyuarat diadakan pada 22.3.2014 untuk mengusulkan perkara-perkara berikut: (a) Defendan Pertama dilantik untuk mengendalikan perniagaan dan menguruskan syarikat tersebut secara perseorangan (solely). (b) Defendan Pertama diberikuasa yang penuh/mutlak untuk mengendalikan dan menjalankan urusan perniagaan TNSB. (c) penandatangan bagi akaun TNSB di RHB Bank Berhad No. Akaun 21227300041533 diberi kepada Defendan Pertama dan Defendan Kedua. (d) Plaintif adalah diarah untuk terus membantu dan melaporkan kepada Defendan Pertama segala perkara berkenaan dengan pengurusan TNSB. (e) Plaintif adalah diarah untuk mengesahkan akaun syarikat tersebut dalam tulisan dan memberikan segala wang, buku cek dan perkara yang berkenaan kepada Defendan Pertama. (f) memberikan kuasa kepada Defendan Kedua untuk menggantikan perkhidmatan Tetuan Alan Chua & Co dan membenarkan syarikat tersebut untuk berbincang dengan Defendan Pertama untuk menyelesaikan kes sivil yang difailkan terhadap syarikat tersebut. v. Berikutan itu, Plaintif telah memulakan tindakan terhadap Defendan Pertama, Defendan Kedua dan TNSB dengan memfailkan Kandungan 1 menurut seksyen 181 Akta Syarikat 1965. Di dalam Kandungan 1, Plaintif memohon antara lain untuk perintah-perintah berikut: (1) Satu deklarasi bahawa Defendan Pertama dan/atau Defendan Kedua samada secara bersesama dan/atau berasingan: (a) Bertindak dengan cara yang menindas pada dan/atau tidak mengambil kira dan/atau tidak merampas kepentingan Plaintif sebagai ahli syarikat tersebut dalam menjalankan atau mengambilalih urusan Defendan Ketiga (syarikat tersebut) daripada Plaintif tanpa sebab yang munasabah dan mengenepikan kepentingan Defendan Ketiga; (b) Telah menjalankan dan/atau menyebabkan ia dilaksanakan dan/atau mengugut untuk menjalankan atau menyebabkan ia dilaksanakan pada Plaintif yang telah dan/atau akan secara tidak adil mendiskriminasikan terhadap atau yang akan sebaliknya memprejudiskan pada Plaintif sebagai seorang ahli syarikat tersebut; (c) Tetuan Alan Chua & Co dikekalkan sebagai peguamcara Defendan Ketiga untuk mengendalikan kes di Mahkamah Sesyen di Shah Alam B52NCVC-87-11/2013 sehingga pelupusan kes tersebut berikutan dengan kes tersebut di tahap perbicaraan kini. (2) Satu Perintah Menghalang Defendan-Defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan Pertama dan Defendan Kedua berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 dengan niat untuk melemahkan kepentingan Plaintif ke atas Syarikat tersebut. (penekanan oleh Mahkamah ini) (3) Akibat daripada Perenggan (1) di atas 3.1 Suatu Perintah bahawa Defendan Pertama dan/atau Kedua membeli saham-saham yang dipegang oleh Plaintif. (4) Secara alternatif pada perenggan (3) di atas, suatu perintah bahawa syarikat tersebut digulung menurut S.181(2) (e) Akta Syarikat 1965. vi. Pada masa yang sama juga, Plaintif telah memfailkan Kandungan 3 memohon untuk satu perintah injunksi ex parte untuk menghalang Defendan Pertama dan Defendan Kedua dari meneruskan mesyuarat yang dijadualkan pada 22.3.2014. vii. Kedua-dua Kandungan 1 dan Kandungan 3 telah ditetapkan untuk perbicaraan di hadapan Yang Arif Pesuruhjaya Kehakiman Tuan Mohamed Zaini bin Mazlan pada 12.11.2014. Pada 4.12.2014, Plaintif telah menarik balik permohonan Kandungan 3 dan Yang Arif Tuan Mohamed Zaini telah kemudian menolak Kandungan 3 Plaintif dengan kos dibayar kepada Defendan-Defendan. Pada tarikh yang sama, Yang Arif Tuan Mohamed Zaini telah juga memutuskan bahawa Kandungan 1 Plaintif ditolak dengan kos. Plaintif yang tidak berpuashati atas keputusan tersebut telah memfailkan notis rayuan ke Mahkamah Rayuan 22.12.2014 merayu terhadap keputusan Pesuruhjaya Kehakiman tersebut. [3] Justeru, sementara penyelesaian rayuannya terhadap Kandungan 1 didengar oleh Mahkamah Rayuan, Kandungan 28 ini, telah difailkan oleh Plaintif bagi memohon satu injunksi Erinford bagi menghalang Defendan-defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan, atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan-Defendan berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 ke atas TNSB. [4] Undang-undang dan prinsip mengenai injunksi Erinford ini adalah jelas dan jitu. Injunksi Erinford yang merupakan remedi ekuiti ini adalah mengambil nama sempena kes Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448 di mana telah diputuskan bahawa bagi mengekalkan status quo sementara menunggu penyelesaian rayuan, mahkamah masih mempunyai bidang kuasa untuk membenarkan satu perintah injunksi walaupun pada peringkat pertama mahkamah telah menolak atau melepaskan sesuatu perintah injunksi. Perintah injunksi sebegini dipanggil injunksi Erinford. Di dalam memutuskan bidang kuasa mahkamah bagi remedi ekuiti ini, Megarry J di dalam kes Erinford Properties di muka surat 454 penghakimannya berkata berikut: “ On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given in one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judge must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly, consistently with his decision, recognize that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all. There may, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)1, where speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his indoubted right of appeal, this court ought to see that appeal, if successful, is not nugatory’. That was the principle which Pennyquick J applied in the Orian case2; and although the cases had not then been cited to me, it was on that principle, and not because I felt any real doubts about my judgment on the motion, that I granted counsel for the plaintiffs the limited injunction pending appeal that he sought. This is not a case in which damages seem to me to be a suitable alternative.” (penekanan oleh Mahkamah ini) [5] Adalah juga suatu yang jelas dan jitu bahawa prinsip yang telah diutarakan di dalam kes Erinford Properties ini telah diikuti oleh mahkamah-mahkamah di Malaysia. Ini dapat dilihat dengan merujuk kepada beberapa kes yang telah diputuskan. [6] Di dalam kes Chellapa a/l Kalimuthu v Sime UEP Properties Bhd [1998] 1 MLJ 20, rujukan telah dibuat oleh Mahkamah Rayuan kepada Interlocutory Injunctions oleh Tan Woon Tiang dan Koh Kok Wah (Butterworths Asia, 1992) pada muka surat 28 di mana Mahkamah Rayuan di muka surat 26 dan 27 penghakimannya, menyatakan berikut: “The kind of prejudice contemplated which will require interim relief has been aptly summarized in Interlocutory Injunctions by Tan Woon Tiang dan Koh Kok Wah (Butterworths Asia, 1992) at page 28. It reads: On the principle that an appellant must not be deprived of the results of an appeal, the country may grant an injunction pending appeal to restrain an act which will render the appeal nugatory (see Orion Property Trust Ltd). Even if an ex parte application for an interlocutory injunction is dismissed, the country may nonetheless grant an injunction pending the appeal against dismissal of the application (see Erinford Properties Ltd; Dickson Trading; Tun Datu Haji Mustapha bin Datu Harun). … Such injunction pending appeal have been called Erinford injunction after the Erinford case. An Erinford injunction will be granted only where there is a likelihood of a successful appeal being rendered nugatory or if the plaintiff would not be adequately compensated in damages for temporary damage between the date of hearing and the date when its appeal is heard (Cocoa Processors) … The court has a discretion to grant an injunction and order a stay pending appeal if that is necessary to ensure that the appeal will not be academic (see Minnesota Mining Co; Kuttikevundaw).” [7] Di dalam kes Marina bte Mohd Yusoff v Pekeliling Triangle Sdn Bhd [2008] 1 CLJ 333, di dalam mengesahkan wujudnya bidang kuasa mahkamah di dalam membenarkan satu perintah injunksi atas penolakan suatu permohonan injunksi interlokutori sementara penyelesaian rayuan terhadap penolakan tersebut, di perenggan [31] penghakimannya, Mahkamah Rayuan telah berkata berikut: “[31] We will first consider the third appeal. It is well settled that the court has jurisdiction on dismissal of an application for an interlocutory injunction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal. The principle governing the grant of the said injunction, known as an Erinford injunction, was set out by Meggary J, in Erinford Properties Ltd v Cheshire County Counsel [1974] 2 All ER 448, at p 454, as follows: There will, of course, be many cases where it would be wrong to grant an injunction pending appeal, as where any appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)(1879-1980) 12 Ch D454, where speaking of an appeal from the Court of Appeal to the House of Lords, he said at p 458, … when a party is appealing, exercising his indoubted right of appeal, this court ought to see the that the appeal, if successful, is not nugatory.’ That was the principle which Pennycuick J applied in the Onion case [1962] 1 WLR 1085 and although the case had not been cited to me, it was on that principle, and not because I felt any doubts about my judgment on the motion, that I granted Mr. Newsom the limited injunction pending appeal that he sought. This is not a case which damages seem to me to be a suitable alternative.” [8] Di dalam kes Subashini Rajasingam v. Saravanan Thangathoray (No. 2) [2007] 4 MLJ 97 pula telah diputuskan antara lain oleh Mahkamah Rayuan bahawa: “…In the absence of a statutory provision prohibiting the application of developments in English law after 7 April 1956, a Malaysian court is entitles to apply cases decided in England after that date. Furthermore, in reference to case of Wilson v. Church, if in 1879 equitable jurisprudence recognised jurisdiction to grant an injunction pending appeal, then, even accepting the submission of the respondent, this was a principle established before 1956 and was in existence at the cut-off date. Hence, the Malaysian courts may safely exercise the power under discussion without even referring to Erinford Properties (supra) and by so doing, be complaint with the direction contained in s.3 of the 1956 Act. Since there is no statutory prohibition against the issuing of an injunction pending appeal, this court had both the jurisdiction and power to issue such an injunction preserving the status quo until the outcome of the appellant’s leave application. (paras 5 & 6) (3) The injunction that was dissolved by this court was one that held the parties to the status quo pending an appeal to this court. The order now being sought was one that sought to preserve what Lord Diplock in Garden Cottage Foods Ltd v. Milk Marketing Board termed as “the dynamic status quo” pending the appellant’s application for leave to the Federal Court. The issue before this court in the respondent’s appeal was whether, having regard to the interpretation given to the several pertinent statutory provisions already discussed in the earlier judgments, the holding over injunction ought to remain. That question was naturally answered in the negative by the majority judgments because the appellant’s appeal failed. However, the question before this court on the present motion was quite different, it being whether the status quo presently prevailing should remain undisturbed until the correctness of this court’s decision had been tested at the next level. So it was quite wrong to treat the motion for the present interim preservation orders as an application to review this court’s earlier ruling. It was not. (para 7) …” [9] Di dalam kes Marina bte Mohd Yusoff juga, telah diputuskan oleh Mahkamah Rayuan bahawa ujian-ujian yang terpakai dalam mempertimbangkan samada injunksi Erinford boleh dibenarkan atau tidak, selain daripada ujian samada rayuan perayu akan menjadi sia-sia jika injunksi Erinford tidak dibenarkan, ujian atau prinsip-prinsip bagi membenarkan atau tidak sebarang permohonan untuk perintah injunksi interlokutori adalah terpakai sama terhadap sesuatu permohonan untuk injunksi Erinford. Ini telah dinyatakan oleh Makkamah Rayuan di dalam penghakimannya di perenggan [32] muka surat 333 seperti berikut: “ [32] Apart from the test whether there is a likelihood of a successful appeal being rendered nugatory, in our view the principle governing the grant of an interlocutory injunction are equally applicable to the grant of an Erinford injunction. Any application for an Erinford injunction must involve considerations of the overall justice of the case and as to whether damages being an adequate remedy. We have earlier held that the learned judge has rightly applied s 72 of the Act in refusing the interlocutory injunction sought by MY. In our view the grant of the Erinford injunction by the learned judge would seem to run foul of the said s 72 as it has the like effect of restraining the action taken or proposed to be taken by Danaharta Urus or its servants or agents over the assets of PTSB.” (penekanan oleh Mahkamah ini) [10] Mahkamah Rayuan pula di dalam kes Keet Gerald Francis Noel John v. Mohd Noor & Ors [1995] 1 CLJ 293 telah menggariskan ujian 3 peringkat “3 stage test” yang harus dipertimbangkan oleh mahkamah atau hakim di dalam sesuatu permohonan untuk perintah injunksi interlokutori yakni: "[3] A Judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines: (a) firstly, he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried; (b) having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case; (c) the Judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo.” [11] Justeru itu pada asasnya walaupun mahkamah pada peringkat pertama telah memutuskan bahawa permohonan untuk injunksi tidak berjaya, ia masih mempunyai bidang kuasa untuk membenarkan suatu perintah injunksi Erinford bagi pengekalan status quo sementara menunggu penyelesaian rayuan terhadap penolakan permohonan untuk suatu perintah injunksi. Namun demikian bagi menimbangkan samada injunksi Erinford boleh dibenarkan atau tidak, selain daripada ujian samada kemungkinan kejayaan rayuan akan menjadi sia-sia dan pertimbangan keadilan secara menyeluruh (considerations of the overall justice of the case), ujian-ujian yang telah digariskan di dalam sesuatu permohonan injunksi interlokutori adalah terpakai sama. [12] Di dalam permohonannya untuk satu injunksi Erinford, Plaintif di dalam afidavit-afidavitnya telah membangkitkan alasan utamanya menghalang perlaksanaan usul-usul yang telah dicadangkan oleh Defendan-defendan pada mesyuarat yang akan dijalankan pada 22.3.2014 adalah keenam-enam usul itu akan melemahkan kepentingannya di dalam Defendan Ketiga dan Defendan Pertama dan Defendan Kedua akan melakukan tindakan-tindakan yang akan menghancurkan Defendan Ketiga. [13] Defendan-defendan pula di dalam menentang permohonan Plaintif, ini telah menimbulkan dua alasan yakni: (a) Plaintif tidak berhak kepada satu injunksi Erinford kerana Plaintif tidak memenuhi asas utama sesuatu permohonan untuk injunksi Erinford yakni pada peringkat pertama mahkamah tidak wujud sebarang permohonan untuk injunksi interlokutori yang telah ditolak atau dilepaskan. (b) Plaintif gagal memenuhi kehendak-kehendak suatu perintah injunksi Erinford. Alasan (a): Asas utama bagi suatu permohonan injunksi Erinford tidak dipenuhi oleh Plaintif kerana perintah penolakan permohonan injunksi interlokutori di peringkat pertama tidak ada [14] Peguam Defendan-defendan telah menghujahkan bahawa permohonan Kandungan 3 Plaintif untuk injunksi menghalang Defendan-defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan, atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan-defendan berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 ke atas TNSB telahpun ditarikbalik oleh Plaintif pada 4.12.2014. Menurut peguam Defendan-defendan dengan penarikan balik Kandungan 3 tersebut oleh Plaintif, maka asas suatu injunksi Erinford yakni mesti wujud pada peringkat pertama mahkamah satu perintah menolak permohonan untuk perintah injunksi interlokutori atau perintah melepaskan perintah injunksi tidak wujud. Makanya di dalam kes ini, pihak Plaintif dihujahkan telah tidak memenuhi keperluan asas utama tersebut. Untuk menyokong hujahannya, peguam Defendan-defendan telah bersandar kepada kes-kes i. Jawi AK Sunny Inspiration Sdn Bhd And Anor [2007] 8 MLJ 38, ii. Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd ( No.2) [2002] 3 165 CLJ. [15] Di dalam hal ini saya bersependapat dengan peguam Plaintif bahawa Kandungan 3 yang memohon injunksi ex parte telah ditarikbalik oleh Plaintif atas alasan bahawa relif yang sama telahpun dipohon oleh Plaintif di dalam Saman Pemula Kandungan 1 di perenggan 2, Kandungan 1. Maka, walaupun Kandungan 3 Plaintif telah ditarik balik, namun memandangkan di perenggan 2, Kandungan 1 Plaintif sememangnya memohon perintah injunksi menghalang Defendan-defendan, pekerja-pekerja mereka, ejen-ejen atau sebaliknya sama sekali daripada melaksanakan, atau memberi kesan pada mana-mana mesyuarat yang ditetapkan oleh Defendan-Defendan berkaitan dengan agenda di dalam Notis Mesyuarat Lembaga Pengarah-Pengarah bertarikh 18.3.2014 ke atas TNSB. Adalah menjadi dapatan saya bahawa apabila YA Pesuruhjaya Kehakiman menolak Kandungan 1 pada 4.12.2014 terdapatnya satu permohonan untuk satu perintah injunksi dan permohonan itu telah ditolak oleh mahkamah. Berbeza dengan kes Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ 575, di dalam kes di hadapan Mahkamah ini memang terdapat permohonan di perenggan 2 Saman Pemula (Kandungan 1) Plaintif untuk satu perintah injunksi terhadap Defendan-defendan. Justeru, bagi Mahkamah ini, alasan (a) yang ditimbulkan oleh Defendan-defendan adalah tidak berasas. Alasan (b): Plaintif gagal memenuhi kehendak-kehendak suatu perintah injunksi Erinford. [16] Seperti yang dinyatakan awal tadi, Plaintif di dalam memohon injunksi Erinford ini bagi menghalang Defendan-defendan dari melaksanakan usul-usul mesyuarat Lembaga Pengarah yang dijadualkan pada 22.3.2014 berdasarkan alasan utamanya bahawa sekiranya Defendan-defendan tidak dihalang daripada melaksanakan keenam-enam usul yang dicadangkan kepentingan-kepentingan Plaintif di dalam TNSB akan dilemahkan dan Defendan Pertama dan Defendan Kedua akan melakukan tindakan-tindakan yang akan menghancurkan Defendan Ketiga. Isu-isu serius untuk dibicarakan Usul (f) [17] Afidavit-afidavit Defendan-defendan menafikan versi yang didakwa oleh Plaintif. Defendan Pertama menafikan bahawa ia telah berhenti kerja dan kononnya Plaintif telah mengambil alih tugas-tugasnya sejak September 2013. Adalah pengataan Defendan Pertama bahawa beliau tidak pernah berhenti kerja dari TNSB dan sehingga kini masih terus bekerja dengan TNSB. Apa yang beliau lakukan adalah mengambil tindakan terhadap TNSB iaitu menuntut saraan dan gajinya sebagai Pengarah yang tidak dibayar oleh TNSB sejak September 2013. Guaman sivil tersebut masih berjalan kerana tiada perintah yang dipohon oleh mana-mana pihak untuk menggantungkan guaman sivil tersebut dan juga perintah mengenepikan perlantikan Tetuan Alan & Co di dalam guaman tersebut. Maka, adalah dihujahkan oleh Defendan-defendan bahawa usul (f) bagi memberikan kuasa kepada Defendan Kedua untuk menggantikan perkhidmatan Tetuan Alan Chua & Co bukanlah menjadi isu di dalam Kandungan 1. [18] Mahkamah ini bersetuju dengan hujahan peguam Defendan-defendan bahawa usul (f) bukanlah isu di dalam kes ini kerana permohonan Defendan Pertama untuk mengenepikan perlantikan Tetuan Alan Chua & Co bagi mewakili TNSB di dalam guaman sivil di Mahkamah Sesyen telah dibenarkan oleh Hakim Mahkamah Sesyen. Perintah itu masih berkuatkuasa kerana tiada permohonan untuk penangguhan perintah tersebut. Pengataan Plaintif bahawa YA Vernon Ong pada 3.4.2014 telah mengarahkan pihak-pihak untuk mengekalkan status asal pihak-pihak sehingga penyelesaian kes injunksi atau Saman Pemula termasuk perintah yang dikeluarkan oleh Hakim Mahkamah Sesyen tidak dapat diterima oleh Mahkamah ini. Pertama, jika melihat minit yang direkodkan pada tarikh 3.4.2014 adalah: “Injunction to maintain status quo of company. Pending disposal of Enclosure 3.” Pembacaan atas minit ini, status quo yang tertera adalah status quo syarikat dan bukanlah perintah Hakim Mahkamah Sesyen (HMS) yang mengenepikan perlantikan Tetuan Alan Chua & Co tersebut (keputusan HMS tersebut); Kedua, jika YA Vernon Ong bermaksud untuk memasukkan sekali perintah tersebut, pasti penyataan spesifik mengenainya akan direkodkan. Ketiga, walaupun, terdapat rayuan difailkan terhadap keputusan HMS, namun tidak ada perintah untuk menangguhkan perintah tersebut. Justeru itu, adalah dapatan Mahkamah ini tidak ada sebab untuk menghalang perlaksanaan usul (f) kerana dengan adanya perintah Mahkamah Sesyen yang telah mengenepikan perlantikan Tetuan Alan Chua & Co atas alasan ketiadaan resolusi bagi perlantikan tersebut, makanya isu penggantian peguamcara bukanlah satu isu, jauh sekali isu serius yang dipertikaikan di dalam permohonan di hadapan Mahkamah ini. [19] Menurut Defendan-defendan lagi, Notis Mesyuarat yang dikeluarkan pada 18.3.2014 adalah Notis Mesyuarat Lembaga Pengarah TNSB pada 22.3.2014 dan bukanlah satu mesyuarat pemegang-pemegang saham untuk meluluskan resolusi-resolusi yang akan menjejaskan kedudukan Plaintif sebagai pemegang saham majoriti sebanyak 40%. Mesyuarat yang akan dijalankan adalah mesyuarat pengurusan syarikat yang dihadiri oleh pengarah-pengarah syarikat TNSB termasuk Plaintif sendiri di mana Lembaga Pengarah membincangkan usul-usul bagi menguruskan perniagaan TNSB. Menurut Defendan-defendan seterusnya kalau dilihat usul jelas bahawa (a) sehingga (e), usul-usul yang dibawa adalah semata-mata bagi tujuan pengurusan perniagaan dan urusan kewangan TNSB. (Defendan Pertama dilantik untuk mengendalikan perniagaan dan menguruskan syarikat tersebut secara perseorangan (solely), Defendan Pertama diberikuasa yang penuh/mutlak untuk mengendalikan dan menjalankan urusan perniagaan TNSB, penandatangan bagi akaun TNSB di RHB Bank Berhad No. Akaun 21227300041533 diberi kepada Defendan Pertama dan Defendan Kedua, Plaintif adalah diarah untuk terus membantu dan melaporkan kepada Defendan Pertama segala perkara berkenaan dengan pengurusan TNSB dan Plaintif adalah diarah untuk mengesahkan akaun syarikat tersebut dalam tulisan dan memberikan segala wang, buku cek dan perkara yang berkenaan kepada Defendan Pertama.) [20] Adalah menjadi hujahan Defendan-defendan bahawa usul-usul yang dicadangkan tidak akan menjejaskan langsung hak mana-mana pemegang saham Defendan Ketiga apatah lagi kedudukan Plaintif sebagai pemegang saham majoriti. Di dalam afidavit-afidavit Plaintif, menurut Defendan-defendan tidak ada keterangan langsung yang dikemukakan oleh Plaintif yang menunjukkan sebarang usul untuk melucutkan Plaintif daripada menjadi pengarah Defendan Ketiga. [21] Di dalam hal dakwaan Plaintif yang haknya sebagai pemegang saham Defendan Ketiga mahupun kedudukan beliau sebagai pengarah akan dijejaskan atau dilemahkan kepentingannya dalam Defendan Ketiga jika usul-usul itu diluluskan, Mahkamah ini bersependapat dengan Defendan-defendan bahawa dakwaan Plaintif tidak berasas kerana pertamanya, usul-usul tersebut tidak langsung menyentuh berkenaan hak pemegang saham-pemegang saham Defendan Ketiga ataupun akan kedudukan Plaintif sebagai pengarah syarikat. Keduanya, dengan ketiadaan keterangan dokumentar yang boleh menunjukkan tindak-tanduk mana-mana Defendan-defendan akan menjejaskan kedudukan Plaintif dan kepentingan Plaintif akan menjadi lemah, serta meneliti usul-usul tersebut, adalah menjadi dapatan Mahkamah ini bahawa tiada isu bona fide yang serius yang perlu dibicarakan di dalam hal ini. Malahan Mahkamah ini bersetuju dengan hujahan peguam Defendan-defendan bahwa Plaintif telah cuba mendapatkan bantuan mahkamah untuk menghalang pengarah-pengarah syarikat daripada menjalankan urusan syarikat dan menjalankan hak mereka sebagai pengarah bagi kepentingan syarikat. [22] Plaintif di dalam afidavit-afidavitnya juga telah cuba mendapatkan injunksi Erinford dengan membangkitkan bahawa terdapatnya isu yang serius di dalam kes ini dengan menimbulkan bahawa sekiranya kelima-lima usul (a) sehingga (e) diluluskan, Defendan Pertama akan memonopoli segala kuasa dari segi pengendalian urusan TNSB dan akan menyalahgunakan segala kuasa untuk kepentingan dirinya. Justeru, kononnya juga segala usaha Plaintif untuk menstabilkan serta mengurangkan kos-kos berpatutan bagi kepentingan syarikat akan menjadi sia-sia. Plaintif telah juga mendakwa bahawa beliau akan dilucutkan hak dalam sebarang jawatan dari TNSB dan perlakuan Defendan Pertama dan Kedua ke arah tersebut menurut Plaintif boleh dilihat apabila Defendan Pertama dan Kedua cuba memindahkan tempat perniagaan TNSB ke satu tempat lain. [23] Defendan-defendan telah menafikan pengataan-pengataan yang ditimbulkan oleh Plaintif dan menegaskan bahawa apa yang dinyatakan oleh Plaintif itu adalah suatu yang tidak berasas dan tidak benar sama sekali. Adalah dihujahkan oleh Defendan-defendan bahawa usul (a) sehingga (e) jika diluluskan akan menjadikan Plaintif dan Defendan Pertama dan Defendan Kedua sama-sama untuk menguruskan perniagaan TNSB. Malahan usul berkenaan penandatangan akaun bank RHB bukanlah diberikan kepada seorang pengarah tetapi dua pengarah yakni Defendan Pertama dan Defendan Kedua. Usul kelima pula adalah untuk mengarahkan Plaintif untuk mengesahkan penyata-penyata akaun yang enggan dikemukakan beliau sendiri sehinggakan pengarah-pengarah TNSB yakni Defendan Pertama dan Defendan Kedua dinafikan saraan dan gaji mereka. Sementara usul (f) mengenai penyelesaian guaman sivil yang dimulakan oleh Defendan Pertama pula akan menyelesaikan guaman sivil terhadap syarikat. Ini semua adalah untuk kepentingan dan faedah syarikat. [24] Mengenai pemindahan tempat perniagaan pula, menurut Defendan-defendan lagi sebenarnya, Plaintif telah tidak menzahirkan fakta sebenar bahawa premis perniagaan TNSB adalah premis Plaintif sendiri dan syarikat membayar sewaan sebanyak RM16,000.00 kepada Plaintif. Apabila Plaintif mengugut TNSB untuk menaikkan sewaan dua kali ganda kepada RM32,000.00, maka sewajarnya TNSB mencari premis lain sebagai alternatif iaitu premis yang lebih murah lagi demi kepentingan syarikat. [25] Mahkamah ini bersetuju dengan hujahan bagi peguam Defendan-defendan bahawa dakwaan yang Plaintif telah timbulkan terhadap Defendan-defendan adalah berbentuk spekulatif apabila Plaintif menggambarkan Defendan Pertama dan Defendan Kedua sebagai pihak yang akan menghancurkan syarikat. Walhal kalau dilihat kepada alasan Plaintif yang tidak mahu usul-usul tersebut dilaksanakan, Plaintif sebenarnya lebih memikirkan kedudukan dan mementingkan keuntungan beliau serta kebimbangan Plaintif akan kehilangan kawalan (control) atas syarikat atau saham atau pun kerugian ekonomi. [26] Di dalam hal ini, Mahkamah ini merujuk kepada kes See Teow Guan & Ors. v Liquidator of Kian Joo Holdings Sdn Bhd (In Liquidation) & Ors [2008] 1 CLJ 218 di mana telah diputuskan oleh Mahkamah Rayuan antara lain bahawa kebimbangan kehilangan kawalan saham dan kerugian ekonomi bukanlah menjadi isu serius yang perlu dibicarakan. Di perenggan 18 penghakimannya Mahkamah Rayuan berkata berikut: “[18] It was of the court’s view that there was total failure on the part of the applicants to establish that there were serious questions to be tried which warranted such an injunction. As stated above, the fear of losing control of the shares, and suffering certain economic losses, did not qualify as serious questions to be tried. To make matters worse there was inordinate and inexcusable delay in filing this motion, in the light of the appeal having been filed in August 2003 whilst this motion being filed in 2007. In fact there was also no evidence adduced in the applicants’ affidavit. i. showing that damages would be inadequate compensation for their losses; and ii. no evidence adduced to show their capacity and capability of honouring their financial undertaking as to damages (Brigid Foley Ltd v. Elliot [1982] RPC 433; Keet Gerald Francis Noel John v. Mohd Noor & Ors [1995] 1 CLJ 293; Cheah Theam Swee & Anor v. Overseas Union Bank Ltd & Ors [1989] 1 CLJ 157; [1989] 1 CLJ (Rep) 386).” [27] Malahan Mahkamah Rayuan di dalam kes See Teow Guan juga telah memutuskan bahawa sekadar kebimbangan dan sentimen bukanlah boleh menjadi hal keadaan yang istimewa pun. Telah diputuskan oleh Mahkamah Rayuan begini: “… Their decision to sell the shares at the best possible price would benefit every shareholder including the applicants. The court here was not about to interfere with the liquidators’ decision simply because its opinion might differ from that of the liquidators. Here, not only had the liquidators not shown bad faith or committed perverse errors but, as per the supporting affidavit, the applicants had also not adduced any evidence that such sale would cause irreparable damage to them. The intention of the applicants’ late father to have the shares retained by the family coupled with the fear of losing them were inextricably interwined to the fear of suffering the loss in value of the investment and were, regretfully, not special circumstances. Mere fear and sentimentality certainly do not qualify as persuasive grounds construable as special circumstances. The applicants also did not explain the delay of four years, since 13 June 2003, to apply for this injunction order. They had filed the notice of appeal on 3 July 2003 and the appeal records were filed on 26 August 2003. Despite the clarity of s. 73 of the CJA legislating that an appeal shall not operate as a stay, the applicants took no steps whatsoever for four years to apply for this order. The unexplained delay of four years was inordinate and inexcusable, and in the circumstances of this case, quite fatal to the applicants’ motion. Furthermore, there was also no evidence adduced in the applicants’ affidavit: (i) showing that damages would be inadequate compensation for their losses; and (ii) showing their capacity and capability or honouring their financial undertaking as to damages. Hence, in the circumstances, there was total failure on the part of the applicants to establish that there were serious questions to be tried which warranted such an injunction. (paras 14, 15, 16 & 18)” [28] Mengambil iktibar dan panduan Mahkamah Rayuan di dalam kes See Teow Guan, walaupun kes See Teow Guan adalah permohonan pemohon bertujuan menghalang tindakan penyelesai-penyelesai syarikat yang telah digulungkan dan bukannya pengarah-pengarah syarikat sendiri seperti di dalam kes di hadapan Mahkamah ini, namun Mahkamah Rayuan telah memutuskan apa yang dilakukan penyelesai-penyelesai syarikat adalah untuk faedah semua pemegang saham termasuklah pemohon. Jadi apatah lagi di dalam kes ini, Defendan Pertama dan Defendan Kedua adalah pemegang saham dan pengarah syarikat sudah pastinya mereka tidak mahu menghancurkan Defendan Ketiga kerana dengan berbuat demikian kepentingan mereka di dalam Defendan Ketiga akan terjejas dan dimudaratkan sama. Namun walau apapun, seperti yang Mahkamah ini awal tadi telah menerangkan bahawa tiada sebarang keterangan pun di hadapan Mahkamah ini bahawa keenam-enam usul tersebut akan membawa kepada kebimbangan yang dibangkitkan oleh Plaintif. [29] Berdasarkan alasan-alasan yang di atas adalah dapatan Mahkamah ini bahawa tidak ada isu-isu bona fide yang serius untuk dibicarakan di dalam kes ini. Gantirugi adalah remedi yang memadai [30] Plaintif mendakwa bahawa gantirugi bukanlah remedi yang tidak sesuai dan memadai dan maka injunksi Erinford ini diperlukan. Jelas di dalam kes ini apa yang dikhuatiri Plaintif adalah pemegangan sahamnya yang kesannya berbentuk kewangan ataupun monetary yakni nilai saham yang dipegang Plaintif dalam Defendan Ketiga di mana Plaintif sendiri di dalam Saman Pemulanya (Kandungan 1) telah memohon perintah supaya saham Defendan dinilaikan oleh penilai yang bebas. Malahan, di dalam Kandungan 1, antara relif utama yang dipohon oleh Plaintif daripada mahkamah adalah perintah supaya Defendan Pertama dan/atau Defendan Kedua membeli saham-saham yang dipegangnya pada suatu nilai yang adil merepresentasikan suatu bahagian yang bersamaan pada jumlah modal saham yang diterbitkan oleh syarikat. Relif supaya Defendan Ketiga digulungkan hanya merupakan relif alternatif sahaja. [31] Adalah fakta yang sangat jelas bahawa nilai saham Plaintif boleh diukur dan kerugian boleh dinilaikan. Di samping itu, pandangan Mahkamah ini, kekhuatiran dan kebimbangan yang ada pada Plaintif bukanlah sangat kepada diskriminasi Defendan Pertama dan Defendan Kedua terhadap Plaintif, mahupun kepentingan Plaintif di dalam syarikat akan dilemahkan ataupun Defendan Pertama dan Defendan Kedua akan menghancurkan syarikat tetapi apa yang sebenarnya dikhuatiri oleh Plaintif adalah samada beliau mendapat pulangan yang adil dan berpatutan atas pemegangan sahamnya di dalam Defendan Ketiga. Dalam erti kata lain, bukanlah kedudukan syarikat, nasib syarikat, kemudaratan syarikat atau masa hadapan syarikat yang menjadi keutamaan Plaintif tetapi berapa jumlah dan nilaian syarikat yang patut diterima oleh Plaintif daripada saham yang dipegangnya. Justeru, daripada penelitian fakta ini mahkamah tidak dapat lari dari membuat kesimpulan bahawa gantirugi sememangnya merupakan remedi yang memadai. Rayuan Plaintif akan menjadi sia-sia. [32] Dakwaan Plaintif bahawa usul-usul tersebut jika dilaksanakan akan memprejudis dan mendiskriminasikan haknya sebagai pemegang saham. Plaintif, telah membangkitkan perkara-perkara di perenggan 20 (a) sehingga (f) Afidavit Sokongannya ( Kandungan 2) antara lain seperti kos penyelenggaran mesin yang tinggi akan ditanggung oleh Defendan Ketiga sekiranya kerja-kerja penyelenggaraan diberikan kepada syarikat Ikatan Sarjana Sdn Bhd yang ada kaitan dengan Defendan Pertama, kebarangkalian pemindahan premis perniagaan Defendan Ketiga ke premis baru yang akan memakan kos yang tinggi, penghentian operasi syarikat akan memudaratkan produktiviti syarikat dan jika perkara-perkara ini berlaku ia akan menjadikan rayuan Plaintif ke Mahkamah Rayuan akan menjadi sia-sia dan perkara-perkara itu tidak boleh kembali kepada keadaan asalnya. [33] Di dalam hal-hal yang dibangkitkan oleh Plaintif di dalam perenggan 20 tersebut, Mahkamah ini bersetuju dengan hujahan peguam Defendan-defendan bahawa perkara-perkara yang didakwa Plaintif tersebut adalah bersandarkan kepada satu yang spekulatif dan bukanlah bersandarkan kepada mana-mana keterangan yang dapat menunjukkan Defendan-defendan telah mengambil langkah-langkah untuk melakukannya dan wujudnya potensi perkara-perkara tersebut akan berlaku. Kalau iapun ianya berlaku yang mana sebahagian besarnya adalah melibatkan pengurusan dan operasi syarikat yang akhirnya akan membawa kesan jumlah wang ringgit dan samada untung atau rugi. Maka kegusaran Plaintif sekali lagi mengenai keuntungan atau kerugian wang yang akan dialami. Di dalam hal ini juga, Mahkamah ini berpandangan kalaupun Defendan Pertama dan/atau Defendan Kedua melaksanakan usul-usul tersebut sebagai pemegang saham dan pengarah syarikat yang mempunyai kepentingan di dalam Defendan Ketiga tidak mungkin kedua-dua mereka mahukan syarikat mengalami kerugian dan kemudaratan semata-mata berniat kononnya mahu melemahkan kepentingan Plaintif di dalam Defendan Ketiga dan mendiskriminasi Plaintif. Sedangkan kedua mereka tahu Plaintif adalah salah seorang pengarah dan pemegang saham terbesar Defendan Ketiga yang mana kepentingan Plaintif sebagai pengarah dan pemegang saham serta perlaburan Plaintif di dalam Defendan Ketiga tidak boleh diketepikan begitu sahaja. [34] Malahan daripada afidavit-afidavit Plaintif tiada keterangan langsung yang dikemukakan untuk membuktikan bahawa ada atau wujudnya apa-apa unsur diskriminasi dan kesan prejudis yang boleh dikaitkan dengan usul-usul yang dicadangkan di dalam Mesyuarat Lembaga Pengarah yang dijadualkan pada 22.3.2014. Imbangan kemudahan (keselesaan) [35] Berdasarkan alasan-alasan di atas imbangan kemudahan adalah memihak kepada Defendan-defendan atas pertimbangan keseluruhannya dan demi keadilan kes, Defendan Pertama dan Defendan kedua sebagai pengarah syarikat lebih-lebih lagi Defendan Ketiga sebagai sebuah syarikat tidak boleh diganggu daripada menjalankan operasi dan pengurusan Defendan Ketiga yang sekiranya Mahkamah ini membenarkan injunksi Erinford ini kemudaratan akan diakibatkan kerana Defendan Ketiga tidak dapat berfungsi dengan baik serta lancar yang akan lebih mendatangkan kerugian yang lebih besar berbanding dengan kebajikan Plaintif hanya bersandarkan dengan kekhuatiran dan kebimbangannya atas kerugian yang akan ditanggungnya, jika ada di kemudian hari kelak. Keputusan Mahkamah [36] Berdasarkan alasan-alasan di atas, Kandungan 28 Plaintif ditolak dengan kos. Kos [37] Bagi isu kos pula, setelah mendengar hujahan ringkas pihak-pihak, Mahkamah ini memerintahkan Plaintif membayar kos sebanyak RM8000.00 kepada Defendan Pertama dan Kedua, manakala bagi Defendan Ketiga kos sebanyak RM2000.00 hendaklah dibayar oleh Plaintif kepada Defendan Ketiga. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 5hb Mac 2015 Peguam Plaintif - Tetuan Markiman & Associates Encik Kanaga Sundran & Encik Siva Ganish Peguam Defendan 1 & 2 - Tetuan Ram Yogan Sivam Encik Yogan Encik Raja Peguam Defendan 3 - Tetuan Param Magdaline & Associates Encik Saraan Nadarajah 39

Tika 2.6.0

24FC-1187-08/2014

PLAINTIF MALAYAN BANKING BERHAD DEFENDAN THEOH KOK WEE

22/01/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cbeab497-6a99-4d76-9c21-9e3dbfebe0ff&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO.24FC-1187-08/2014 Dalam perkara Seksyen 256 dan Seksyen 257, Kanun Tanah Negara (Akta 56, Tahun 1965) DAN Dalam perkara (Gadaian No. Perserahan 31237/94 Jilid No. 58 didaftarkan pada 25/07/1994 (berserta lampiran-lampirannya) dan dipegang dibawah Geran No. 74754, Lot No. 31659, Pekan Subang Jaya, Daerah Petaling, Negeri Selangor (dahulu dikenali sebagai Geran No. 4208, HS (D) 55807, Daerah Petaling, Negeri Selangor) DAN Dalam perkara mengenai Aturan 7(2) dan Aturan 83, Kaedah 1(1)(b) dan (d), Kaedah-Kaedah Mahkamah 2012 DAN Dalam perkara mengenai Gadaian bertarikh 22/07/1994 dan berserta dengan lampiran-lampirannya. ANTARA MALAYAN BANKING BERHAD … PLAINTIF DAN THEOH KOK WEE … DEFENDAN ALASAN PENGHAKIMAN (Saman Pemula –Kandungan 1) [1] Malayan Banking Berhad (Plaintif) telah memfailkan Saman Pemula (Kandungan 1) ini untuk mendapatkan perintah-perintah antara lain bahawa: (a) bahawa hartanah beralamat yang dipegang di bawah Geran No: 74754 Lot No: 31659, Pekan Subang Jaya, Daerah Petaling, Negeri Selangor (selepas ini dirujuk sebagai hartanah tersebut”) telah digadaikan kepada Plaintif (melalui Gadaian tersebut yang didaftarkan oleh Pendaftar Hakmilik Negeri Selangor pada 25.07.1994 dijual melalui lelongan awam di bawah Kanun Tanah Negara untuk menjelaskan jumlah wang terhutang Pinjaman Perumahan sebanyak RM151,691.65 setakat 27.08.2014 sehingga tarikh penyelesaian sepenuhnya mengenai Pinjaman Perumahan sebanyak RM40,000.00 yang diberikan kepada Defendan oleh Plaintif. (b) bahawa jualan hartanah tersebut mestilah secara lelongan awam pada tarikh, tempat dan masa yang ditetapkan oleh Mahkamah yang mulia ini. [2] Plaintif telah memfailkan Kandungan 1 ini menurut Seksyen 256 dan Seksyen 257 Kanun Tanah Negara (KTN), bersama-sama Aturan 7(2) serta Aturan 83 Kaedah-Kaedah Mahkamah (KKM) 2012. Kandungan 1 Plaintif ini telah disokong oleh Kandungan 2 (Afidavit Sokongan), Kandungan 5 (Afidavit Sokongan Tambahan/ Pembetulan), Kandungan 7 dan 9 (Afidavit Balasan [kepada Afidavit Bantahan Defendan] dan Afidavit Balasan [kepada Afidavit Bantahan Defendan]) dan Kandungan 12 (Afidavit Balasan (2) [kepada Afidavit Jawapan Defendan (2)]) yang kesemuanya diikrarkan oleh Mohd Nazri bin Naemat. [3] Fakta ringkas kes adalah seperti berikut: (i) Atas permohonan Theoh Kok Wee (Defendan), pada 13.7.1993 Plaintif telah memberi dua kemudahan perbankan kepada Defendan yang berupa satu pinjaman perumahan (pinjaman perumahan tersebut) bagi membiayai sebahagian daripada harga belian hartanah tersebut dan satu lagi kemudahan overdraf atas terma-terma dan syarat-syarat yang dipersetujui oleh kedua-dua pihak. Kedua-dua kemudahan ini berjumlah RM80,000.00 di mana jumlah bagi setiap satu kemudahan perbankan yang diberikan adalah RM40,000.00. (ii) Bagi menjamin kemudahan pinjaman perumahan tersebut, Defendan yang merupakan tuanpunya hartanah tersebut telah bersetuju menggadaikan hartanah tersebut kepada Plaintif melalui Gadaian No. Perserahan 31237194, Jilid No. 58 yang didaftarkan pada 25.7.1994. (iii) Defendan kemudiannya telah memungkiri syarat dan terma-terma pinjaman perumahan tersebut apabila gagal membuat pembayaran ansuran yang ditetapkan di dalam pinjaman perumahan tersebut. (iv) Atas kemungkiran Defendan tersebut, Plaintif telah memulakan tindakan ke atas Defendan atas jumlah hutang yang tertunggak dengan memfailkan guaman sivil di Mahkamah Sesyen Shah Alam (Saman No. 52-1403-05/2012). Di dalam guaman sivil di Mahkamah Sesyen ini, Plaintif telah memperolehi Penghakiman Terus untuk jumlah sebanyak RM87,332.99 setakat 1.5.2012 beserta faedah ke atas jumlah penghakiman pada kadar 8.10% yakni 1.50% setahun atas Kadar Pinjaman Asas (KPA) sebanyak 6.6% dan kos sebanyak RM3000.00. (v) Tidak puas hati atas keputusan Hakim Mahkamah Sesyen tersebut, Defendan telah memfailkan rayuan ke Mahkamah Tinggi yang mana rayuan Defendan tersebut telah ditolak oleh Hakim Mahkamah Tinggi pada 22.2.2013. Permohonan Defendan untuk kebenaran merayu ke Mahkamah Rayuan juga telah ditolak oleh Mahkamah Rayuan pada 24.1.2014. (vi) Atas perlakuan Defendan yang masih berterusan melanggari terma-terma perjanjian pinjaman perumahan tersebut dan kemungkirannya di dalam menyelaraskan akaun pinjaman perumahannya, Plaintif melalui peguamcaranya telah menguatkuasa hak statutorinya ke atas gadaian tersebut dengan mengeluarkan Notis Kemungkiran di dalam Borang 16D (Notis 16D) menurut seksyen 254 KTN bertarikh 22.7.2014 kepada Defendan bagi menuntut Defendan memulihkan kemungkirannya di dalam tempoh satu bulan dari tarikh penyampaian Notis 16D. Di dalam Notis 16D tersebut telah dinyatakan dengan jelas bahawa sekiranya Defendan gagal atau enggan meremedikan kemungkirannya, maka Plaintif akan memohon suatu perintah jualan terhadap hartanah tersebut. (vii) Notis 16D telahpun diserahkan kepada Defendan dan atas keengganan dan/atau kegagalan Defendan meremedikan kemungkirannya, Kandungan 1 ini telah difailkan oleh Plaintif di Mahkamah ini. (viii) Perlu dinyatakan di sini bahawa Defendan telahpun menyelesaikan sepenuhnya kemudahan overdraf yang diberikan oleh Plaintif kepadanya. [4] Kandungan 1 Plaintif telah ditentang oleh Defendan dengan pemfailan tiga (3) afidavit oleh Defendan yakni Affidavit in Opposition yang diikrarkan pada 9.10.2014 (Kandungan 6), Afidavit Jawapan Defendan yang diikrarkan pada 3.11.2014 (Kandungan 10) dan Afidavit Jawapan Lanjut Defendan yang diikrarkan pada 18.11.2014 (Kandungan 13). [5] Kandungan 6 adalah afidavit Defendan yang telah dideposkan dan diikrarkan oleh Defendan di dalam Bahasa Inggeris. Dengan itu, Plaintif telah membangkitkan satu bantahan awal atas pemfailan Kandungan 6 iaitu satu afidavit yang di dalam Bahasa Inggeris tanpa sebarang penterjemahan dalam Bahasa Kebangsaan. Menurut Plaintif, Kandungan 6 ini adalah afidavit yang di luar aturan dan bercanggahan dengan undang-undang dan justeru itu ianya tidak boleh diterima, tidak boleh diambilkira serta tidak boleh dipertimbangkan oleh Mahkamah ini. [6] Namun begitu, perlu dinyatakan di sini walaupun Plaintif telah membangkitkan bantahan awal terhadap Kandungan 6 itu tetapi apabila diteliti hujahan bertulis yang difailkan oleh Plaintif, Mahkamah ini mendapati peguam Plaintif tidak begitu memberi penekanan dan tidak bersungguh-sungguh di atas bantahan awalnya. Peguam Plaintif sekadar membangkitkan isu tersebut dan tidak pula merujuk Mahkamah ini kepada mana-mana nas undang-undang bagi menyokong hujahannya berkenaan dengan bantahan awal tersebut. Untuk melihat lebih jelas apa yang dihujahkan oleh peguam Plaintif mengenai bantahan awal tersebut, diperturunkan hujahan peguam Plaintif tersebut di bawah ini: (i) The Plaintiff raises preliminary objection in respect to the Defendant’s Affidavit-in-Opposition of the Originating Summons filed in English without any translation in the National Language and affirmed on 09/10/2014 and filed herein. (ii) The Plaintiff also raised a preliminary objection to the Defendant’s Further Affidavit (Afidavit Lanjutan) faxed to us on 18/11/2014 without the affirmation date and received the affirmed copy on 21/11/2014 despite Court’s instructions to file Written Submissions. (iii) It is respectively submitted that based on the two preliminary objections, both the Defendant’s Further Affidavits should be disregarded and should not be admissible. [7] Di dalam hal penggunaan mandatori bahasa kebangsaan iaitu Bahasa Melayu di dalam mana-mana prosiding mahkamah, Mahkamah ini sedar mengenai keputusan yang telah dibuat di dalam kes Dato’ Seri Anwar bin Ibrahim v Tun Dr Mahathir bin Muhammad [2010] 2 MLJ 41 di mana Mahkamah Rayuan telah memutuskan antara lain bahawa: (1) The mandatory provisions of art 152 of the Federal Constitution read together with s8 of the Act as well as s 3 of the Interpretation Acts 1948 and 1967 clearly require the appellant to file the memorandum of appeal in the national language which shall be the Malay language. Thus the failure of the appellant to a file a memorandum of appeal in Bahasa Malaysia renders the purported record of appeal filed by the appellant useless. The importance of the Malay language as the national language cannot be taken lightly. The appeal filed by the appellant is thus incurably defective and consequently the appellant’s appeal herein should be dismissed with costs for that reason alone, ie that there was no proper record of appeal before this court. What is mandatory must be strictly adhered to for otherwise there would be dire consequences. Further, r 21(2) of the Rules categorically states that if the memorandum of appeal was not drawn up the prescribed manner, the appeal may be dismissed. In the same vein, r 21(3) of the Rules stipulates that if any part of the record of appeal is not filed the appeal may be dismissed. The purported memorandum of appeal in the English language must accordingly be rejected outright without further ado and the appellant’s record of appeal too ought to be dismissed with costs (see paras 50, 53 & 55-56). [8] Terdapat beberapa kes lain yang juga telah memutuskan berkenaan kepatuhan mandatori penggunaan Bahasa Melayu di dalam prosiding di mahkamah. Memadai jika merujuk kepada kes Zainun bte Hj Dahan lwn Rakyat Merchant Bankers Bhd & Satu lagi [1998] 1 MLJ 532. Di dalam kes Zainun bte Hj Dahan ini, YA Nik Hashim PK (YA pada masa itu) telah menekankan perihal penggunaan mandatori Bahasa Melayu di dalam prosiding mahkamah dengan berkata berikut di muka surat 535 penghakimannya: “Pemfailan ‘notice of motion’ ini dalam Bahasa Inggeris bukan sahaja menyalahi A 92 k 1 KMT malah ia juga melanggar s 8 Akta Bahasa Kebangsaan 1963/1967 (‘Akta tersebut’) yang memperuntukkan: Segala prosiding (selain daripada pemberian keterangan oleh seseorang saksi) dalam Mahkamah Agung, Mahkamah Tinggi atau mana-mana mahkamah rendah hendalah dalam bahasa kebangsaan. Dengan syarat bahawa mahkamah boleh, sama ada atas kehendaknya sendiri atau atas permintaan mana-mana pihak dalam mana-mana prosiding dan selepas menimbangkan kepentingan keadilan dalam prosiding itu, memerintahkan supaya prosiding itu (selain daripada pemberian keterangan oleh seseorang saksi) dijalankan sebahagiannya dalam bahasa kebangsaan dan sebahagiannya dalam bahasa inggeris. Penggunaan Bahasa Melayu di mahkamah tidak boleh dipermudahkan dan diambil ringan. Perlembagaan Persekutuan menetapkan bahasa kebangsaan negara ialah Bahasa Melayu (perkara 152). Dengan diperuntukan undang-undang di atas, maka keraguan atas penggunaan Bahasa Melayu dalam prosiding mahkamah tidak boleh dipersoalkan lagi. Jadi, penggunaannya hendaklah dilaksanakan dengan ketatnya oleh semua pihak. Mahkamah hendaklah memainkan peranannya dengan melaksanakan kuasa dengan sewajarnya. Kaedah-kaedah Mahkamah termasuk A 92 k 1 adalah digubal bukan untuk hiasan tetapi untuk dipatuhi supaya prosiding di Mahkamah dapat berjalan dengan sempurna. Ketakpatuhan kepada peraturan atau kaedah-kaedah mahkamah akan membawa prosiding di mahkamah menjadi kelam kabut (Sykt Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd [1994] 2 MLJ 420; [1993] 3 CLJ 629). Permohonan melalui notis usul bukan suatu perkara yang susah atau rumit untuk dibuat dalam Bahasa Melayu. Dalam kes ini, ‘notice of motion’ sengaja dibuat dan difailkan bersekali dengan afidavit serta pernyataan dalam Bahasa Inggeris tanpa memperdulikan peruntukan A 92 k 1 KMT, Akta tersebut dan Perlembagaan Persekutuan. Tidak ada sebab mengapa permohonan ini tidak boleh dibuat dalam Bahasa Melayu. Teks yang sahih ialah teks dalam Bahasa Melayu. Sekiranya mahkamah tidak berwaspada dan bertindak dari awal, sudah tentu lampiran 3 ini akan ‘terlepas’ dan pendengaran permohonan diteruskan tanpa mematuhi kaedah tersebut. Ketakpatuhan undang-undang tidak boleh dibiarkan. Permohonan di Lampiran 3 adalah sungguh tidak teratur dan ia tidak boleh diterima dan dipertimbangkan oleh Mahkamah sama sekali.” [9] Walaupun menyedari kedudukan undang-undang berkenaan kepatuhan mandatori penggunaan Bahasa Melayu di dalam prosiding mahkamah, namun di dalam kes di hadapan Mahkamah ini, Mahkamah ini berpandangan bahawa walaupun Kandungan 6 adalah di dalam Bahasa Inggeris akan tetapi terdapat dua (2) lagi afidavit yang telah difailkan dan diikrarkan oleh Defendan bagi menentang Kandungan 1 di dalam Bahasa Melayu (Kandungan 10 dan Kandungan 13) serta dengan mengambilkira ketidaksungguhan Plaintif dalam penghujahan bantahan awal ini dan demi keadilan kes, adalah menjadi dapatan Mahkamah ini bahawa bantahan awal ini tidak perlu dipertimbangkan dan kes ini hendaklah diputuskan berdasarkan merit kes. [10] Berbalik kepada permohonan Plaintif di dalam Kandungan 1, undang-undang adalah jelas dan jitu bahawa di dalam sesuatu prosiding halang tebus, mahkamah tidak akan menguatkuasakan hak atau remedi statutori di sisi penggadai (chargee) yang termaktub dalam sesuatu gadaian dengan mengeluarkan satu perintah menjual secara lelongan awam sekiranya mahkamah berpuas hati bahawa wujudnya suatu kausa yang bertentangan. [11] Justeru, bagi mana-mana pemberi gadaian (chargor) yang hendak menepis satu perintah penjualan melalui lelongan awam daripada dikeluarkan oleh mahkamah, ia mempunyai beban untuk membuktikan bahawa wujudnya kausa yang bertentangan. [12] Di dalam pentakrifan frasa kausa yang bertentangan, Mahkamah ini tidak boleh lari dari merujuk kepada kes Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 AMR 1036, di mana Mahkamah Agung di dalam kes Low Lee Lian ini telah mengkategorikan frasa kausa yang bertentangan dengan memutuskan antara lain seperti berikut: “It is not sufficient to allege mere breaches by the charge of the loan agreement between the chargee and the borrower, or even of the terms of the annexure to the charge in order to resist an application under s 256(3) of the NLC. An allegation that the charge acted in breach of contract, while it may give rise to an independent action in personam, is insufficient per se to defeat the ad rem rights of a charge under his registered charge to an order for sale. [SEE P 1053 LINE 42 – P 1054 LINE 5} These are the following categories of cases where cause to the contrary within s 256(3) of the NLC may be established: (i) Firstly, a chargor who is able to bring his case within any of the exceptions to the indefeasibility doctrine housed in s 340 of the NLC. (ii) Secondly, a chargor may show cause to the contrary within s 256(3) of the Code by demonstrating that the chargee has failed to meet the conditions precedent for the making of an application for an order of sale, for e.g. failure on the part of the charge to prove the making of a demand or service upon the chargor of a notice in Form 16D would constitute cause to the contrary. Similarly where the notice demands sums not lawfully due from the chargee. (iii) Thirdly, a chargor may defeat an application for an order of sale by demonstrating that its grant would be contrary to some rule of law or equity.” [13] Di dalam mencapai pendekatan terhad dengan memberikan tiga kategori kausa yang bertentangan ini, Mahkamah Agung telah memberikan alasan-alasannya dengan berkata di muka surat 1054 begini: “We are conscious that the approach we have adopted results in a very narrow and restrictive interpretation of s 256(3) of the code. But there are good reasons of policy for such an interpretation. It must not be forgotten that in the ordinary way, banks and other financial institutions loan moneys deposited with them by their customers to a borrower on the faith of the security of a charge created over the landed property of the borrower, or as here, of a third party. In the event of a default by the borrower, the lending institution normally looks to early recovery of all or a substantial part of the money due to them from a sale of a security. If the courts of this country interpret the phrase ‘cause to the contrary’ appearing in s 256(3) of the Code liberally, then, institutional lenders would loose confidence in their right to realize their security through an order for sale. Financial institutions would then become reluctant to lend money to bonafide entrepreneurs. Commerce would come to a standstill and the development of land and industries in this country which are largely dependent upon loans from banks would cease. No judgment of this court will be designed to produce such a consequence. [14] Di dalam kes di hadapan Mahkamah ini, Defendan telah cuba membuktikan atau mengemukakan bahawa wujudnya kausa yang bertentangan dengan menimbulkan di dalam afidavit-afidavitnya lima alasan yakni: (i) Plaintif telah gagal mengemukakan butir-butir yang mencukupi atas tuntutannya. (ii) Defendan telah menyelesaikan sepenuhnya jumlah terhutangnya kepada Plaintif, malahan Defendan telah terlebih bayar kepada Plaintif. (iii) Notis Borang 16D adalah cacat dan tak sah kerana jumlah yang dituntut adalah tidak terhutang oleh Defendan kepada Plaintif. (iv) Tindakan Plaintif adalah diestop atas prinsip res judicata kerana Plaintif sebelum ini telah memfailkan prosiding halang tebus atas hartanah tersebut di dalam Saman Pemula No. 24-1821-2011 yang telahpun ditolak oleh Mahkamah. Maka pertikaian Plaintif dan Defendan mengenai hartanah tersebut telahpun dibicarakan dan diputuskan. (v) Tindakan Plaintif dihalang oleh had masa kerana Plaintif tidak menimbulkan atau mengemukakan tarikh kemungkiran di pihak Defendan. Alasan (i): Plaintif gagal mengemukakan butir-butir yang mencukupi atas tuntutannya. [15] Defendan telah menghujahkan bahawa terdapat ketidakpatuhan Aturan 83 kaedah 3(3) dan (6) KKM 2012 di pihak Plaintif di mana Plaintif telah dikatakan gagal mengemukakan butir-butir yang cukup atas jumlah yang dihutang oleh Defendan kepada Plaintif. Menurut Defendan, Plaintif telah menuntut jumlah terhutang sebanyak RM151,691.65 tetapi memandangkan terdapat dua kemudahan perbankan yang diberikan kepada Defendan, Plaintif telah tidak menyatakan asas atau bagaimana butir-butir pengiraan jumlah keberhutangan tersebut telah didapati oleh Plaintif. [16] Plaintif telah menafikan yang pihaknya telah tidak mengemukakan butiran cukup atas keberhutangan Defendan kepadanya dan menghujahkan bahawa tidak ada ketidakpatuhan Aturan 83 kaedah 3(3) KKM 2012 di pihak Plaintif dan alasan atau dakwaan yang ditimbulkan oleh Defendan adalah penafian kosong semata-mata. Adalah dihujahkan oleh Plaintif bahawa Defendan sememangnya tahu dan sedar yang Plaintif sememangnya telah memperolehi penghakiman terus terhadap Defendan pada 26.6.2013 untuk jumlah RM87,332.99 setakat 1.5.2012 beserta faedah pada kadar 8.10% (1.5% atas KPA pada 6.60%). Defendan telah merayu ke Mahkamah Tinggi atas keputusan Hakim Mahkamah Sesyen dan rayuan Defendan telah ditolak oleh Hakim Mahkamah Tinggi pada 22.2.2013. Manakala permohonan kebenaran untuk merayu ke Mahkamah Rayuan Defendan telah ditolak oleh Mahkamah Rayuan pada 24.1.2014. Justeru menurut peguam Plaintif lagi, apabila Notis 16D (Eksibit “MNN- 5”, Kandungan 2) diserahkan kepada Defendan, di dalam notis tersebut jumlah keberhutangan Defendan kepada Plaintif bagi pinjaman perumahan tersebut setakat 30.6.2014 adalah sebanyak RM151,455.44. Jumlah ini adalah berserta faedah yang akan dikenakan pada 1.5% sebulan di atas Kadar Pinjaman Asas (KPA). [17] Mahkamah ini bersependapat dengan Plaintif bahawa alasan butir-butir yang tidak mencukupi yang ditimbulkan oleh Defendan adalah penafian jumlah hutang semata-mata. Mahkamah ini katakan demikian atas alasan-alasan berikut: (a) apabila Notis 16D disampaikan kepada Defendan telah tertera di dalam Notis tersebut jumlah di mana Defendan terhutang bagi akaun pinjaman perumahannya setakat 30.6.2014 adalah RM151,455.44 dengan kadar faedah 1.5% atas KPA berterusan sehingga penyelesaian penuh. Di dalam Notis tersebut juga akaun yang telah dimungkiri oleh Defendan adalah akaun pinjaman perumahan di mana perkataan pinjaman perumahan telah ditekankan di dalam notis tersebut “Pinjaman Perumahan”. Dalam hal ini Defendan telah gagal meremedikan kemungkirannya dalam tempoh 30 hari bagi jumlah tersebut pada tarikh yang dinyatakan sehinggalah Kandungan 1 difailkan pada 27.8.2014. Apabila Kandungan 1 difailkan oleh Plaintif, Plaintif telah mematuhi Aturan 83 Kaedah 3(3) KKM di mana di dalam afidavitnya telah membutirkan jumlah-jumlah yang terhutang oleh Defendan pada pinjaman perumahan tersebut setakat 27.8.2014 seperti berikut: (a) Kemudahan : Pinjaman Terma (bagi perumahan) (b) Amaun Pendahuluan : RM 40,000.00 (c) Amaun yang telah dibayar : RM 40,376.00 (d) Amaun faedah tertunggak : RM 47,208.00 setakat 27.08.2014 (e) Amaun ansuran tertunggak : RM 59,536.58 setakat 27.08.2014 (f) Amaun yang terhutang : RM151,691.65 setakat 27.08.2014 (g) Faedah harian yang dikenakan : RM 32.36 Kadar Pinjaman Asas semasa plaintif + 1.5% setahun dikira pada kadar bulanan berserta penalty sebanyak 1% setahun ke atas ansuran yang tertunggak (BLR sekarang ialah 6.85% setahun) [18] Di dalam mempertikaikan dan menafikan jumlah keberhutangannya yang tertera di perenggan 11 Kandungan 2, Defendan hanya menyatakan berikut di perenggan 12 Kandungan 6 nya: 12. I refer to paragraph 11 of the AIS and vehenmently deny allegations therein. I am advised by my solicitors and verily believe that pursuant to O.83 r. 3(3) and (6), the Plaintiff should furnish sufficient particulars of the amount alleged to be due. The Plaintiff has set out certain figures without any particulars, and no basis of how the Plaintiff arrived at claim sum of RM151,691.65. [19] Defendan telah menafikan jumlah keberhutangan atau jumlah yang tidak diselaraskan oleh beliau bagi akaun perumahan beliau dengan hanya menimbulkan pengataan kosong semata-mata tanpa menimbulkan atau menyatakan apakah butir-butir yang tertera di perenggan 11 yang tidak tepat, tidak betul atau tidak menggambarkan jumlah sebenar hutang beliau. [20] Di dalam keadaan ini, sukacita Mahkamah ini merujuk kes Mahkamah Rayuan yang telah dirujuk oleh Plaintif kepada Mahkamah ini yakni kes Ambank Bhd. (successor in title “Arab-Malaysian Finance Bhd.”) v Chidambara Nathan a/l MST Muthusamy & Anor [2014] 2 MLJ 86 di mana di perenggan 17 dan 18 Mahkamah Rayuan telah berkata seperti berikut: “…There is a clear distinction between sums lawfully due and alleged arithmetical miscalculations. A miscalculation by the chargee on the interest due in the Form 16D notice does not invalidate the notice. A variation of the rate of interest by the charge without giving any notice of the same to the chargor would not amount to cause to the contrary…” “…However, the chargor must be able to point to a statutory direction or some rule of common law or doctrine of equity operating in his favour and against which an Order for Sale would militate. Anything that falls short of this requirement will not amount to cause to the contrary under s 256(3) of the NLC…” (penekanan oleh Mahkamah ini) [21] Mengambil panduan daripada keputusan Mahkamah Rayuan di dalam kes Ambank Bhd., Defendan di dalam percubaan untuk mempertikaikan jumlah terhutang mestilah berupaya menunjukkan kepada Mahkamah ini secara tepat apakah jumlah yang telah dituntut oleh Plaintif yang memihak kepada Defendan dan apakah butir hutang secara spesifiknya yang tidak dinyatakan oleh Plaintif yang mana tidak mematuhi butiran yang dikehendaki di bawah Aturan 83 KKM 2012. [22] Di dalam hal ini, molek juga dirujuk kepada penghakiman oleh Mahadev Shankar H (YA pada masa itu) di dalam kes Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608 berkenaan kepatuhan Aturan 83 dan butiran-butiran yang perlu bagi mematuhi Aturan 83 ini. Di dalam kes Citibank NA ini, Mahadev Shankar H telah memutuskan bahawa: “(2) The Objective of O 83 r 3 is to enable the defendant to know at least by the date the originating summons is filed, what is the exact sum he is legally liable to pay so that he can make up his mind to contest or pay up. If there is a dispute as to the amount payable, the court must be able to say precisely when making its order ‘the total amount due to the charge at the date on which the order is made’. These words are from s 257(1)(c) of the National Land Code 1965 and they are mandatory.” Hakim Mahadev Shankar seterusnya di muka surat 615 penghakimannya telah berkata: “What the chargor has lost where there is a failure to comply with Order 83 r 3(3) is opportunity to satisfy himself of the correctness of the amount claimed, and to challenge the figures if he is not. A bare denial of a debt was never enough. The chargor also has an onus if he denies the amount claimed to say how much he admits owing. In this kind of case the dismissal of the application for non-compliance with some aspect of the rules does not estinguish the debt. The chargee can start afresh but there will then be additional costs, interest and delay.”(penekanan oleh Mahkamah ini) [23] Merujuk pula kepada keputusan Jeffrey Tan H (YA pada masa itu) di dalam kes Multi-Purpose Bank Bhd v Diamond Agreement Sdn Bhd & Anor [2000] 2 CLJ 73 di mana antara lain telah diputuskan bahawa: “[4] Given that the provisions of s. 257(1)(a) – (d) of the NLC are mandatory, it is absolutely essential that charges state the “total amount due as the date on which the order is to be made”, so that the court may specify the total amount due to the chargee at the date on which the order is made. It is imperative, therefore, the charges state the aggregate sum of the principal and overdue interest due at the date on which the order is made. Indeed, given that the “state of the account between the chargor and charge at the date on which the order is made” is the aggregate sum of the principal and overdue interest due on the date the order is made rather than the aggregate sum of the principal and overdue interest due at the date of the affidavit, knowledge of the “amount of the interest in arrear at the date of the affidavit” or absence thereof has no real significance. Rather, it is knowledge of the principal and overdue intereset due at the date on which the order is made that holds real significance. In the present case, the defendants had not been deprived of that knowledge. They knew and they know the exact amount outstanding under the charge. The defendants had not been deprived of any opportunity to repay the defendant. Therefore, the plaintiff’s failure to state the “amount of the interest in arrear at the date of the affidavit” had not prejudiced the defendants and there was no cause to the contrary.” [24] Di dalam kes ini, Plaintif di dalam Afidavit Balasan 2 (Kandungan 12 ) di Eksibit MNN-8, telah menunjukkan secara terperinci jumlah yang dituntut oleh Plaintif terhadap Defendan bagi akaun pinjaman perumahan No. 414187916568 di mana jumlah keberhutangan Defendan kepada Plaintif adalah jumlah yang terhutang dari 1.5.2012 sebanyak RM87,332.99 (jumlah tertunggak semasa penghakiman terus diperolehi) termasuklah jumlah kos kepeguaman atas dasar peguamcara dan anak guam yang termaktub di dalam klausa 14.08 gadaian. Keseluruhan jumlah terhutang setakat 27.8.2014 pada masa Kandungan 1 difailkan adalah RM151,691.65 seperti dinyatakan di dalam perenggan 11 Kandungan 12. Di dalam kes ini Defendan sememangnya tahu dan mengetahui jumlah keberhutangannya bagi akaun pinjaman perumahannya dan cuba mengelak dengan mengatakan bahawa jumlah sebenar hutangnya tidak jelas kerana ada akaun lain iaitu akaun overdraf yang telah diselesaikan sepenuhnya olehnya. Plaintif sendiri telah mengakui bahawa akaun overdraf Defendan telah diselesaikan sepenuhnya oleh Defendan dan jumlah yang masih tertunggak adalah hanya akaun pinjaman perumahan Defendan. [25] Justeru, di dalam kes ini, adalah menjadi dapatan Mahkamah ini bahawa Defendan hanya setakat mempertikaikan jumlah terhutang tetapi tidak berupaya menunjukkan apakah jumlah yang tidak tepat dan jumlah yang memihak kepadanya. Mahkamah ini mengulangi lagi bahawa Defendan sememangnya tahu dan mengetahui jumlah keberhutangannya bagi akaun pinjaman perumahannya dan cuba mengelak dengan pengataan kosong bahawa jumlah sebenar hutangnya tidak diperincikan dengan cukup dan maka jumlahnya tidak jelas. Bagi Mahkamah ini pengataan kosong sebegini yang mana Defendan telah gagal menyatakan secara spesifik dan nyata jumlah yang tidak jelas, adalah alasan atau dakwaan yang tidak cukup untuk menjadikan ia suatu kausa yang bertentangan. Alasan (ii): Defendan telah menyelesaikan sepenuhnya jumlah terhutang dan malahan Defendan telah terlebih bayar kepada Plaintif. [26] Plaintif mengesahkan bahawa apa yang telah dijelaskan sepenuhnya oleh Defendan adalah kemudahan overdraf. Namun bagi pinjaman perumahan yang diberikan, Defendan masih lagi belum menjelaskan hutang tertunggak, justeru itulah Plaintif menguatkuasakan remedi statutori yang ada pada Plaintif. [27] Menurut Plaintif lagi, Eksibit “MNN-6”, Kandungan 2 telah menunjukkan dengan jelas akaun 414187916568 bagi pinjaman perumahan yang menunjukkan jumlah yang terhutang oleh Defendan kepada Plaintif setakat 27.8.2014 yakni pada masa Kandungan 1 difailkan. [28] Dalam hal ini, akaun ini telah menunjukkan bahawa jumlah ini adalah jumlah bagi pinjaman perumahan yang diberikan berjumlah RM40,000.00 dan ianya bukanlah bagi akaun kemudahan overderaf. [29] Adalah menjadi dapatan Mahkamah ini bahawa alasan ini juga tidak terjumlah kepada satu kausa yang bertentangan. Alasan (iii): Notis Borang 16D adalah cacat dan tak sah kerana jumlah yang dituntut tidak terhutang oleh Defendan. [30] Defendan cuba membangkitkan kecacatan Notis 16D dengan hanya menyatakan bahawa tiada hutang tertunggak oleh Defendan kepada Plaintif. Alasan ini pastinya gagal bagi mengwujudkan sesuatu kausa yang bertentangan dengan dapatan Mahkamah ini yang telah diputuskan bagi alasan (i) dan (ii). Alasan (iv): Tindakan Plaintif adalah diestop atas prinsip res judicata kerana Plaintif telah memfailkan prosiding halang tebus atas hartanah tersebut di dalam Saman Pemula No. 24-1821-2011 yang telahpun ditolak oleh Mahkamah. Maka pertikaian Plaintif dan Defendan mengenai hartanah tersebut telahpun dibicarakan dan diputuskan. [31] Prinsip res judicata tidak terpakai di dalam kes ini kerana apabila mahkamah menolak permohonan Plaintif di dalam Saman Pemula 24-1821-2011, merit kes tidak didengar oleh YA Hakim. YA Hakim telah menolak permohonan Plaintif atas alasan Penyata Akaun yang tidak teratur. [32] Untuk alasan ini, memadai jika kes Kandiah Peter v Public Bank Bhd [1994] 1 MLJ 119 dirujuk. Di dalam kes Kandiah Peter ini, Mahkamah Agung telah memutuskan antara lain bahawa: “[1] A chargee who makes an application for an order for sale in foreclosure proceedings under s 256 of the code does not commence an action. He merely enforces his rights as a charge by exercising his statutory remedy against the chargor in default. The order for sale when made under s 256 of the code is not a judgment or a decree. The court hearing the application for foreclosure does not make, and in any event ought not to make, any adjudication upon any substantive issues. [2] In order for the doctrines of res judicata, cause of action estoppel or issue estoppel, the earlier proceedings must have resulted in a final judgment or decree. This requirement is not met by foreclosure proceedings which do not result or terminate in a final judgment or decree. [3] Where a chargor raises issues and relies upon facts to show “cause to the contrary” in proceedings brought by the charge under s 256 of the code, he is not barred from bringing a fresh action against the charge, notwithstanding that an order for sale has been made, and raising in that action the same or similar facts and issues as those raised by him in the foreclosure proceedings. Neither res judicata nor cause of action estoppels not issue estoppels are available answers to the chargee to meet the chargor’s action.” [33] Apatah lagi di dalam kes prosiding halang tebus pertama yang telah dimulakan oleh Plaintif, ianya telah ditolak atas penyata akaun yang tidak teratur. Ini jelas tertera pada minit YA Hakim di dalam kes Saman Pemula No. 24-1821-2011 yang telah di eksibitkan di eksibit “MNN-11” Kandungan 7 yang ditulis: Saman ditolak – statement of account not in order dengan kos RM 2000.00. [34] Untuk itu, Mahkamah ini suka juga merujuk kes RHB Bank Berhad v. Govindaraju [2012] 6 MLR 419, di mana YA Harmindar Singh Dhaliwal telah memutuskan antara lain seperti berikut: “(1) The court did not indicate that the first OS was heard on the merits and there was no judgment of the court to show the same. Further, regardless of the fact that the Plaintiff’s first OS was dismissed, the Plaintiff, as a charge, was legally entitled to initiate a fresh foreclosure proceeding against the Defendant. In foreclosure proceedings, estoppel and res judicata was not available to the chargor as a bar to bringing a fresh action by a charge. (para 12)” Alasan (v): Tindakan Plaintif dihalang oleh had masa kerana Plaintif tidak menimbulkan atau mengemukakan tarikh kemungkiran di pihak Defendan. [35] Telah dinyatakan di atas bahawa tindakan halang tebus yang diambil oleh penggadai bukanlah suatu tindakan yang dimulakan penggadai tetapi ianya hanya merupakan suatu penguatkuasaan hak statutorinya, maka isu had masa yang ditimbulkan oleh Defendan tidak mempunyai merit atau tidak berasas. [36] Dalam hal ini suka mahkamah ini merujuk kepada kes Peh Lai Huat v. MBF Finance Bhd. [2011] 3 MLJ 470 di mana Mahkamah Rayuan telah memutuskan antara lain bahawa: “…Similarly, S 21(2) of the Limitation Act which reads:- (2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclose accrued: Provided that if after that date the mortgagee was in possession of the mortgaged property, right to foreclose on the property which was in his possession shall not, for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued. Also has no application to this case. That is because the cause of action here, that is to say, the right to exercise the statutory remedy of an Order for Sale did not arise until after the Appellate had failed to remedy the default specified in the Form 16D notice…” Kesimpulan dan keputusan Mahkamah: [37] Adalah menjadi dapatan Mahkamah ini bahawa alasan-alasan yang ditimbulkan Defendan di dalam percubaannya untuk membuktikan atau menunjuk sebab atau mengwujudkan kausa yang bertentangan bagi menghalang satu perintah penjualan hartanah tersebut melalui lelongan awam adalah alasan-alasan penafian semata-mata yang tidak langsung termasuk di dalam mana-mana tiga kategori yang telah diputuskan oleh Mahkamah Agung di dalam kes Low Lee Lian. [38] Justeru, Mahkamah ini membenarkan permohonan Plaintif di dalam Kandungan 1 di mana Mahkamah ini memberikan perintah untuk menjual hartanah tersebut melalui lelongan awam atas terma-terma yang dinyatakan dalam Kandungan 1 dan Defendan membayar kos kepada Plaintif seperti dalam perenggan 7, Kandungan 1 atas dasar peguamcara dan anak guamnya. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 22hb Januari 2015 Peguam Plaintif - Tetuan Izauddin, Firdaus & Mahendran Encik S.Mahendran Peguam Defendan - Tetuan Esther Ong Tengku Saiful & Sree Cik Nicole Lee Hui Ching 33

Tika 2.6.0

24FC-1187-08/2014

PLAINTIF MALAYAN BANKING BERHAD DEFENDAN THEOH KOK WEE

22/01/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cbeab497-6a99-4d76-9c21-9e3dbfebe0ff&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO.24FC-1187-08/2014 Dalam perkara Seksyen 256 dan Seksyen 257, Kanun Tanah Negara (Akta 56, Tahun 1965) DAN Dalam perkara (Gadaian No. Perserahan 31237/94 Jilid No. 58 didaftarkan pada 25/07/1994 (berserta lampiran-lampirannya) dan dipegang dibawah Geran No. 74754, Lot No. 31659, Pekan Subang Jaya, Daerah Petaling, Negeri Selangor (dahulu dikenali sebagai Geran No. 4208, HS (D) 55807, Daerah Petaling, Negeri Selangor) DAN Dalam perkara mengenai Aturan 7(2) dan Aturan 83, Kaedah 1(1)(b) dan (d), Kaedah-Kaedah Mahkamah 2012 DAN Dalam perkara mengenai Gadaian bertarikh 22/07/1994 dan berserta dengan lampiran-lampirannya. ANTARA MALAYAN BANKING BERHAD … PLAINTIF DAN THEOH KOK WEE … DEFENDAN ALASAN PENGHAKIMAN (Saman Pemula –Kandungan 1) [1] Malayan Banking Berhad (Plaintif) telah memfailkan Saman Pemula (Kandungan 1) ini untuk mendapatkan perintah-perintah antara lain bahawa: (a) bahawa hartanah beralamat yang dipegang di bawah Geran No: 74754 Lot No: 31659, Pekan Subang Jaya, Daerah Petaling, Negeri Selangor (selepas ini dirujuk sebagai hartanah tersebut”) telah digadaikan kepada Plaintif (melalui Gadaian tersebut yang didaftarkan oleh Pendaftar Hakmilik Negeri Selangor pada 25.07.1994 dijual melalui lelongan awam di bawah Kanun Tanah Negara untuk menjelaskan jumlah wang terhutang Pinjaman Perumahan sebanyak RM151,691.65 setakat 27.08.2014 sehingga tarikh penyelesaian sepenuhnya mengenai Pinjaman Perumahan sebanyak RM40,000.00 yang diberikan kepada Defendan oleh Plaintif. (b) bahawa jualan hartanah tersebut mestilah secara lelongan awam pada tarikh, tempat dan masa yang ditetapkan oleh Mahkamah yang mulia ini. [2] Plaintif telah memfailkan Kandungan 1 ini menurut Seksyen 256 dan Seksyen 257 Kanun Tanah Negara (KTN), bersama-sama Aturan 7(2) serta Aturan 83 Kaedah-Kaedah Mahkamah (KKM) 2012. Kandungan 1 Plaintif ini telah disokong oleh Kandungan 2 (Afidavit Sokongan), Kandungan 5 (Afidavit Sokongan Tambahan/ Pembetulan), Kandungan 7 dan 9 (Afidavit Balasan [kepada Afidavit Bantahan Defendan] dan Afidavit Balasan [kepada Afidavit Bantahan Defendan]) dan Kandungan 12 (Afidavit Balasan (2) [kepada Afidavit Jawapan Defendan (2)]) yang kesemuanya diikrarkan oleh Mohd Nazri bin Naemat. [3] Fakta ringkas kes adalah seperti berikut: (i) Atas permohonan Theoh Kok Wee (Defendan), pada 13.7.1993 Plaintif telah memberi dua kemudahan perbankan kepada Defendan yang berupa satu pinjaman perumahan (pinjaman perumahan tersebut) bagi membiayai sebahagian daripada harga belian hartanah tersebut dan satu lagi kemudahan overdraf atas terma-terma dan syarat-syarat yang dipersetujui oleh kedua-dua pihak. Kedua-dua kemudahan ini berjumlah RM80,000.00 di mana jumlah bagi setiap satu kemudahan perbankan yang diberikan adalah RM40,000.00. (ii) Bagi menjamin kemudahan pinjaman perumahan tersebut, Defendan yang merupakan tuanpunya hartanah tersebut telah bersetuju menggadaikan hartanah tersebut kepada Plaintif melalui Gadaian No. Perserahan 31237194, Jilid No. 58 yang didaftarkan pada 25.7.1994. (iii) Defendan kemudiannya telah memungkiri syarat dan terma-terma pinjaman perumahan tersebut apabila gagal membuat pembayaran ansuran yang ditetapkan di dalam pinjaman perumahan tersebut. (iv) Atas kemungkiran Defendan tersebut, Plaintif telah memulakan tindakan ke atas Defendan atas jumlah hutang yang tertunggak dengan memfailkan guaman sivil di Mahkamah Sesyen Shah Alam (Saman No. 52-1403-05/2012). Di dalam guaman sivil di Mahkamah Sesyen ini, Plaintif telah memperolehi Penghakiman Terus untuk jumlah sebanyak RM87,332.99 setakat 1.5.2012 beserta faedah ke atas jumlah penghakiman pada kadar 8.10% yakni 1.50% setahun atas Kadar Pinjaman Asas (KPA) sebanyak 6.6% dan kos sebanyak RM3000.00. (v) Tidak puas hati atas keputusan Hakim Mahkamah Sesyen tersebut, Defendan telah memfailkan rayuan ke Mahkamah Tinggi yang mana rayuan Defendan tersebut telah ditolak oleh Hakim Mahkamah Tinggi pada 22.2.2013. Permohonan Defendan untuk kebenaran merayu ke Mahkamah Rayuan juga telah ditolak oleh Mahkamah Rayuan pada 24.1.2014. (vi) Atas perlakuan Defendan yang masih berterusan melanggari terma-terma perjanjian pinjaman perumahan tersebut dan kemungkirannya di dalam menyelaraskan akaun pinjaman perumahannya, Plaintif melalui peguamcaranya telah menguatkuasa hak statutorinya ke atas gadaian tersebut dengan mengeluarkan Notis Kemungkiran di dalam Borang 16D (Notis 16D) menurut seksyen 254 KTN bertarikh 22.7.2014 kepada Defendan bagi menuntut Defendan memulihkan kemungkirannya di dalam tempoh satu bulan dari tarikh penyampaian Notis 16D. Di dalam Notis 16D tersebut telah dinyatakan dengan jelas bahawa sekiranya Defendan gagal atau enggan meremedikan kemungkirannya, maka Plaintif akan memohon suatu perintah jualan terhadap hartanah tersebut. (vii) Notis 16D telahpun diserahkan kepada Defendan dan atas keengganan dan/atau kegagalan Defendan meremedikan kemungkirannya, Kandungan 1 ini telah difailkan oleh Plaintif di Mahkamah ini. (viii) Perlu dinyatakan di sini bahawa Defendan telahpun menyelesaikan sepenuhnya kemudahan overdraf yang diberikan oleh Plaintif kepadanya. [4] Kandungan 1 Plaintif telah ditentang oleh Defendan dengan pemfailan tiga (3) afidavit oleh Defendan yakni Affidavit in Opposition yang diikrarkan pada 9.10.2014 (Kandungan 6), Afidavit Jawapan Defendan yang diikrarkan pada 3.11.2014 (Kandungan 10) dan Afidavit Jawapan Lanjut Defendan yang diikrarkan pada 18.11.2014 (Kandungan 13). [5] Kandungan 6 adalah afidavit Defendan yang telah dideposkan dan diikrarkan oleh Defendan di dalam Bahasa Inggeris. Dengan itu, Plaintif telah membangkitkan satu bantahan awal atas pemfailan Kandungan 6 iaitu satu afidavit yang di dalam Bahasa Inggeris tanpa sebarang penterjemahan dalam Bahasa Kebangsaan. Menurut Plaintif, Kandungan 6 ini adalah afidavit yang di luar aturan dan bercanggahan dengan undang-undang dan justeru itu ianya tidak boleh diterima, tidak boleh diambilkira serta tidak boleh dipertimbangkan oleh Mahkamah ini. [6] Namun begitu, perlu dinyatakan di sini walaupun Plaintif telah membangkitkan bantahan awal terhadap Kandungan 6 itu tetapi apabila diteliti hujahan bertulis yang difailkan oleh Plaintif, Mahkamah ini mendapati peguam Plaintif tidak begitu memberi penekanan dan tidak bersungguh-sungguh di atas bantahan awalnya. Peguam Plaintif sekadar membangkitkan isu tersebut dan tidak pula merujuk Mahkamah ini kepada mana-mana nas undang-undang bagi menyokong hujahannya berkenaan dengan bantahan awal tersebut. Untuk melihat lebih jelas apa yang dihujahkan oleh peguam Plaintif mengenai bantahan awal tersebut, diperturunkan hujahan peguam Plaintif tersebut di bawah ini: (i) The Plaintiff raises preliminary objection in respect to the Defendant’s Affidavit-in-Opposition of the Originating Summons filed in English without any translation in the National Language and affirmed on 09/10/2014 and filed herein. (ii) The Plaintiff also raised a preliminary objection to the Defendant’s Further Affidavit (Afidavit Lanjutan) faxed to us on 18/11/2014 without the affirmation date and received the affirmed copy on 21/11/2014 despite Court’s instructions to file Written Submissions. (iii) It is respectively submitted that based on the two preliminary objections, both the Defendant’s Further Affidavits should be disregarded and should not be admissible. [7] Di dalam hal penggunaan mandatori bahasa kebangsaan iaitu Bahasa Melayu di dalam mana-mana prosiding mahkamah, Mahkamah ini sedar mengenai keputusan yang telah dibuat di dalam kes Dato’ Seri Anwar bin Ibrahim v Tun Dr Mahathir bin Muhammad [2010] 2 MLJ 41 di mana Mahkamah Rayuan telah memutuskan antara lain bahawa: (1) The mandatory provisions of art 152 of the Federal Constitution read together with s8 of the Act as well as s 3 of the Interpretation Acts 1948 and 1967 clearly require the appellant to file the memorandum of appeal in the national language which shall be the Malay language. Thus the failure of the appellant to a file a memorandum of appeal in Bahasa Malaysia renders the purported record of appeal filed by the appellant useless. The importance of the Malay language as the national language cannot be taken lightly. The appeal filed by the appellant is thus incurably defective and consequently the appellant’s appeal herein should be dismissed with costs for that reason alone, ie that there was no proper record of appeal before this court. What is mandatory must be strictly adhered to for otherwise there would be dire consequences. Further, r 21(2) of the Rules categorically states that if the memorandum of appeal was not drawn up the prescribed manner, the appeal may be dismissed. In the same vein, r 21(3) of the Rules stipulates that if any part of the record of appeal is not filed the appeal may be dismissed. The purported memorandum of appeal in the English language must accordingly be rejected outright without further ado and the appellant’s record of appeal too ought to be dismissed with costs (see paras 50, 53 & 55-56). [8] Terdapat beberapa kes lain yang juga telah memutuskan berkenaan kepatuhan mandatori penggunaan Bahasa Melayu di dalam prosiding di mahkamah. Memadai jika merujuk kepada kes Zainun bte Hj Dahan lwn Rakyat Merchant Bankers Bhd & Satu lagi [1998] 1 MLJ 532. Di dalam kes Zainun bte Hj Dahan ini, YA Nik Hashim PK (YA pada masa itu) telah menekankan perihal penggunaan mandatori Bahasa Melayu di dalam prosiding mahkamah dengan berkata berikut di muka surat 535 penghakimannya: “Pemfailan ‘notice of motion’ ini dalam Bahasa Inggeris bukan sahaja menyalahi A 92 k 1 KMT malah ia juga melanggar s 8 Akta Bahasa Kebangsaan 1963/1967 (‘Akta tersebut’) yang memperuntukkan: Segala prosiding (selain daripada pemberian keterangan oleh seseorang saksi) dalam Mahkamah Agung, Mahkamah Tinggi atau mana-mana mahkamah rendah hendalah dalam bahasa kebangsaan. Dengan syarat bahawa mahkamah boleh, sama ada atas kehendaknya sendiri atau atas permintaan mana-mana pihak dalam mana-mana prosiding dan selepas menimbangkan kepentingan keadilan dalam prosiding itu, memerintahkan supaya prosiding itu (selain daripada pemberian keterangan oleh seseorang saksi) dijalankan sebahagiannya dalam bahasa kebangsaan dan sebahagiannya dalam bahasa inggeris. Penggunaan Bahasa Melayu di mahkamah tidak boleh dipermudahkan dan diambil ringan. Perlembagaan Persekutuan menetapkan bahasa kebangsaan negara ialah Bahasa Melayu (perkara 152). Dengan diperuntukan undang-undang di atas, maka keraguan atas penggunaan Bahasa Melayu dalam prosiding mahkamah tidak boleh dipersoalkan lagi. Jadi, penggunaannya hendaklah dilaksanakan dengan ketatnya oleh semua pihak. Mahkamah hendaklah memainkan peranannya dengan melaksanakan kuasa dengan sewajarnya. Kaedah-kaedah Mahkamah termasuk A 92 k 1 adalah digubal bukan untuk hiasan tetapi untuk dipatuhi supaya prosiding di Mahkamah dapat berjalan dengan sempurna. Ketakpatuhan kepada peraturan atau kaedah-kaedah mahkamah akan membawa prosiding di mahkamah menjadi kelam kabut (Sykt Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd [1994] 2 MLJ 420; [1993] 3 CLJ 629). Permohonan melalui notis usul bukan suatu perkara yang susah atau rumit untuk dibuat dalam Bahasa Melayu. Dalam kes ini, ‘notice of motion’ sengaja dibuat dan difailkan bersekali dengan afidavit serta pernyataan dalam Bahasa Inggeris tanpa memperdulikan peruntukan A 92 k 1 KMT, Akta tersebut dan Perlembagaan Persekutuan. Tidak ada sebab mengapa permohonan ini tidak boleh dibuat dalam Bahasa Melayu. Teks yang sahih ialah teks dalam Bahasa Melayu. Sekiranya mahkamah tidak berwaspada dan bertindak dari awal, sudah tentu lampiran 3 ini akan ‘terlepas’ dan pendengaran permohonan diteruskan tanpa mematuhi kaedah tersebut. Ketakpatuhan undang-undang tidak boleh dibiarkan. Permohonan di Lampiran 3 adalah sungguh tidak teratur dan ia tidak boleh diterima dan dipertimbangkan oleh Mahkamah sama sekali.” [9] Walaupun menyedari kedudukan undang-undang berkenaan kepatuhan mandatori penggunaan Bahasa Melayu di dalam prosiding mahkamah, namun di dalam kes di hadapan Mahkamah ini, Mahkamah ini berpandangan bahawa walaupun Kandungan 6 adalah di dalam Bahasa Inggeris akan tetapi terdapat dua (2) lagi afidavit yang telah difailkan dan diikrarkan oleh Defendan bagi menentang Kandungan 1 di dalam Bahasa Melayu (Kandungan 10 dan Kandungan 13) serta dengan mengambilkira ketidaksungguhan Plaintif dalam penghujahan bantahan awal ini dan demi keadilan kes, adalah menjadi dapatan Mahkamah ini bahawa bantahan awal ini tidak perlu dipertimbangkan dan kes ini hendaklah diputuskan berdasarkan merit kes. [10] Berbalik kepada permohonan Plaintif di dalam Kandungan 1, undang-undang adalah jelas dan jitu bahawa di dalam sesuatu prosiding halang tebus, mahkamah tidak akan menguatkuasakan hak atau remedi statutori di sisi penggadai (chargee) yang termaktub dalam sesuatu gadaian dengan mengeluarkan satu perintah menjual secara lelongan awam sekiranya mahkamah berpuas hati bahawa wujudnya suatu kausa yang bertentangan. [11] Justeru, bagi mana-mana pemberi gadaian (chargor) yang hendak menepis satu perintah penjualan melalui lelongan awam daripada dikeluarkan oleh mahkamah, ia mempunyai beban untuk membuktikan bahawa wujudnya kausa yang bertentangan. [12] Di dalam pentakrifan frasa kausa yang bertentangan, Mahkamah ini tidak boleh lari dari merujuk kepada kes Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 AMR 1036, di mana Mahkamah Agung di dalam kes Low Lee Lian ini telah mengkategorikan frasa kausa yang bertentangan dengan memutuskan antara lain seperti berikut: “It is not sufficient to allege mere breaches by the charge of the loan agreement between the chargee and the borrower, or even of the terms of the annexure to the charge in order to resist an application under s 256(3) of the NLC. An allegation that the charge acted in breach of contract, while it may give rise to an independent action in personam, is insufficient per se to defeat the ad rem rights of a charge under his registered charge to an order for sale. [SEE P 1053 LINE 42 – P 1054 LINE 5} These are the following categories of cases where cause to the contrary within s 256(3) of the NLC may be established: (i) Firstly, a chargor who is able to bring his case within any of the exceptions to the indefeasibility doctrine housed in s 340 of the NLC. (ii) Secondly, a chargor may show cause to the contrary within s 256(3) of the Code by demonstrating that the chargee has failed to meet the conditions precedent for the making of an application for an order of sale, for e.g. failure on the part of the charge to prove the making of a demand or service upon the chargor of a notice in Form 16D would constitute cause to the contrary. Similarly where the notice demands sums not lawfully due from the chargee. (iii) Thirdly, a chargor may defeat an application for an order of sale by demonstrating that its grant would be contrary to some rule of law or equity.” [13] Di dalam mencapai pendekatan terhad dengan memberikan tiga kategori kausa yang bertentangan ini, Mahkamah Agung telah memberikan alasan-alasannya dengan berkata di muka surat 1054 begini: “We are conscious that the approach we have adopted results in a very narrow and restrictive interpretation of s 256(3) of the code. But there are good reasons of policy for such an interpretation. It must not be forgotten that in the ordinary way, banks and other financial institutions loan moneys deposited with them by their customers to a borrower on the faith of the security of a charge created over the landed property of the borrower, or as here, of a third party. In the event of a default by the borrower, the lending institution normally looks to early recovery of all or a substantial part of the money due to them from a sale of a security. If the courts of this country interpret the phrase ‘cause to the contrary’ appearing in s 256(3) of the Code liberally, then, institutional lenders would loose confidence in their right to realize their security through an order for sale. Financial institutions would then become reluctant to lend money to bonafide entrepreneurs. Commerce would come to a standstill and the development of land and industries in this country which are largely dependent upon loans from banks would cease. No judgment of this court will be designed to produce such a consequence. [14] Di dalam kes di hadapan Mahkamah ini, Defendan telah cuba membuktikan atau mengemukakan bahawa wujudnya kausa yang bertentangan dengan menimbulkan di dalam afidavit-afidavitnya lima alasan yakni: (i) Plaintif telah gagal mengemukakan butir-butir yang mencukupi atas tuntutannya. (ii) Defendan telah menyelesaikan sepenuhnya jumlah terhutangnya kepada Plaintif, malahan Defendan telah terlebih bayar kepada Plaintif. (iii) Notis Borang 16D adalah cacat dan tak sah kerana jumlah yang dituntut adalah tidak terhutang oleh Defendan kepada Plaintif. (iv) Tindakan Plaintif adalah diestop atas prinsip res judicata kerana Plaintif sebelum ini telah memfailkan prosiding halang tebus atas hartanah tersebut di dalam Saman Pemula No. 24-1821-2011 yang telahpun ditolak oleh Mahkamah. Maka pertikaian Plaintif dan Defendan mengenai hartanah tersebut telahpun dibicarakan dan diputuskan. (v) Tindakan Plaintif dihalang oleh had masa kerana Plaintif tidak menimbulkan atau mengemukakan tarikh kemungkiran di pihak Defendan. Alasan (i): Plaintif gagal mengemukakan butir-butir yang mencukupi atas tuntutannya. [15] Defendan telah menghujahkan bahawa terdapat ketidakpatuhan Aturan 83 kaedah 3(3) dan (6) KKM 2012 di pihak Plaintif di mana Plaintif telah dikatakan gagal mengemukakan butir-butir yang cukup atas jumlah yang dihutang oleh Defendan kepada Plaintif. Menurut Defendan, Plaintif telah menuntut jumlah terhutang sebanyak RM151,691.65 tetapi memandangkan terdapat dua kemudahan perbankan yang diberikan kepada Defendan, Plaintif telah tidak menyatakan asas atau bagaimana butir-butir pengiraan jumlah keberhutangan tersebut telah didapati oleh Plaintif. [16] Plaintif telah menafikan yang pihaknya telah tidak mengemukakan butiran cukup atas keberhutangan Defendan kepadanya dan menghujahkan bahawa tidak ada ketidakpatuhan Aturan 83 kaedah 3(3) KKM 2012 di pihak Plaintif dan alasan atau dakwaan yang ditimbulkan oleh Defendan adalah penafian kosong semata-mata. Adalah dihujahkan oleh Plaintif bahawa Defendan sememangnya tahu dan sedar yang Plaintif sememangnya telah memperolehi penghakiman terus terhadap Defendan pada 26.6.2013 untuk jumlah RM87,332.99 setakat 1.5.2012 beserta faedah pada kadar 8.10% (1.5% atas KPA pada 6.60%). Defendan telah merayu ke Mahkamah Tinggi atas keputusan Hakim Mahkamah Sesyen dan rayuan Defendan telah ditolak oleh Hakim Mahkamah Tinggi pada 22.2.2013. Manakala permohonan kebenaran untuk merayu ke Mahkamah Rayuan Defendan telah ditolak oleh Mahkamah Rayuan pada 24.1.2014. Justeru menurut peguam Plaintif lagi, apabila Notis 16D (Eksibit “MNN- 5”, Kandungan 2) diserahkan kepada Defendan, di dalam notis tersebut jumlah keberhutangan Defendan kepada Plaintif bagi pinjaman perumahan tersebut setakat 30.6.2014 adalah sebanyak RM151,455.44. Jumlah ini adalah berserta faedah yang akan dikenakan pada 1.5% sebulan di atas Kadar Pinjaman Asas (KPA). [17] Mahkamah ini bersependapat dengan Plaintif bahawa alasan butir-butir yang tidak mencukupi yang ditimbulkan oleh Defendan adalah penafian jumlah hutang semata-mata. Mahkamah ini katakan demikian atas alasan-alasan berikut: (a) apabila Notis 16D disampaikan kepada Defendan telah tertera di dalam Notis tersebut jumlah di mana Defendan terhutang bagi akaun pinjaman perumahannya setakat 30.6.2014 adalah RM151,455.44 dengan kadar faedah 1.5% atas KPA berterusan sehingga penyelesaian penuh. Di dalam Notis tersebut juga akaun yang telah dimungkiri oleh Defendan adalah akaun pinjaman perumahan di mana perkataan pinjaman perumahan telah ditekankan di dalam notis tersebut “Pinjaman Perumahan”. Dalam hal ini Defendan telah gagal meremedikan kemungkirannya dalam tempoh 30 hari bagi jumlah tersebut pada tarikh yang dinyatakan sehinggalah Kandungan 1 difailkan pada 27.8.2014. Apabila Kandungan 1 difailkan oleh Plaintif, Plaintif telah mematuhi Aturan 83 Kaedah 3(3) KKM di mana di dalam afidavitnya telah membutirkan jumlah-jumlah yang terhutang oleh Defendan pada pinjaman perumahan tersebut setakat 27.8.2014 seperti berikut: (a) Kemudahan : Pinjaman Terma (bagi perumahan) (b) Amaun Pendahuluan : RM 40,000.00 (c) Amaun yang telah dibayar : RM 40,376.00 (d) Amaun faedah tertunggak : RM 47,208.00 setakat 27.08.2014 (e) Amaun ansuran tertunggak : RM 59,536.58 setakat 27.08.2014 (f) Amaun yang terhutang : RM151,691.65 setakat 27.08.2014 (g) Faedah harian yang dikenakan : RM 32.36 Kadar Pinjaman Asas semasa plaintif + 1.5% setahun dikira pada kadar bulanan berserta penalty sebanyak 1% setahun ke atas ansuran yang tertunggak (BLR sekarang ialah 6.85% setahun) [18] Di dalam mempertikaikan dan menafikan jumlah keberhutangannya yang tertera di perenggan 11 Kandungan 2, Defendan hanya menyatakan berikut di perenggan 12 Kandungan 6 nya: 12. I refer to paragraph 11 of the AIS and vehenmently deny allegations therein. I am advised by my solicitors and verily believe that pursuant to O.83 r. 3(3) and (6), the Plaintiff should furnish sufficient particulars of the amount alleged to be due. The Plaintiff has set out certain figures without any particulars, and no basis of how the Plaintiff arrived at claim sum of RM151,691.65. [19] Defendan telah menafikan jumlah keberhutangan atau jumlah yang tidak diselaraskan oleh beliau bagi akaun perumahan beliau dengan hanya menimbulkan pengataan kosong semata-mata tanpa menimbulkan atau menyatakan apakah butir-butir yang tertera di perenggan 11 yang tidak tepat, tidak betul atau tidak menggambarkan jumlah sebenar hutang beliau. [20] Di dalam keadaan ini, sukacita Mahkamah ini merujuk kes Mahkamah Rayuan yang telah dirujuk oleh Plaintif kepada Mahkamah ini yakni kes Ambank Bhd. (successor in title “Arab-Malaysian Finance Bhd.”) v Chidambara Nathan a/l MST Muthusamy & Anor [2014] 2 MLJ 86 di mana di perenggan 17 dan 18 Mahkamah Rayuan telah berkata seperti berikut: “…There is a clear distinction between sums lawfully due and alleged arithmetical miscalculations. A miscalculation by the chargee on the interest due in the Form 16D notice does not invalidate the notice. A variation of the rate of interest by the charge without giving any notice of the same to the chargor would not amount to cause to the contrary…” “…However, the chargor must be able to point to a statutory direction or some rule of common law or doctrine of equity operating in his favour and against which an Order for Sale would militate. Anything that falls short of this requirement will not amount to cause to the contrary under s 256(3) of the NLC…” (penekanan oleh Mahkamah ini) [21] Mengambil panduan daripada keputusan Mahkamah Rayuan di dalam kes Ambank Bhd., Defendan di dalam percubaan untuk mempertikaikan jumlah terhutang mestilah berupaya menunjukkan kepada Mahkamah ini secara tepat apakah jumlah yang telah dituntut oleh Plaintif yang memihak kepada Defendan dan apakah butir hutang secara spesifiknya yang tidak dinyatakan oleh Plaintif yang mana tidak mematuhi butiran yang dikehendaki di bawah Aturan 83 KKM 2012. [22] Di dalam hal ini, molek juga dirujuk kepada penghakiman oleh Mahadev Shankar H (YA pada masa itu) di dalam kes Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608 berkenaan kepatuhan Aturan 83 dan butiran-butiran yang perlu bagi mematuhi Aturan 83 ini. Di dalam kes Citibank NA ini, Mahadev Shankar H telah memutuskan bahawa: “(2) The Objective of O 83 r 3 is to enable the defendant to know at least by the date the originating summons is filed, what is the exact sum he is legally liable to pay so that he can make up his mind to contest or pay up. If there is a dispute as to the amount payable, the court must be able to say precisely when making its order ‘the total amount due to the charge at the date on which the order is made’. These words are from s 257(1)(c) of the National Land Code 1965 and they are mandatory.” Hakim Mahadev Shankar seterusnya di muka surat 615 penghakimannya telah berkata: “What the chargor has lost where there is a failure to comply with Order 83 r 3(3) is opportunity to satisfy himself of the correctness of the amount claimed, and to challenge the figures if he is not. A bare denial of a debt was never enough. The chargor also has an onus if he denies the amount claimed to say how much he admits owing. In this kind of case the dismissal of the application for non-compliance with some aspect of the rules does not estinguish the debt. The chargee can start afresh but there will then be additional costs, interest and delay.”(penekanan oleh Mahkamah ini) [23] Merujuk pula kepada keputusan Jeffrey Tan H (YA pada masa itu) di dalam kes Multi-Purpose Bank Bhd v Diamond Agreement Sdn Bhd & Anor [2000] 2 CLJ 73 di mana antara lain telah diputuskan bahawa: “[4] Given that the provisions of s. 257(1)(a) – (d) of the NLC are mandatory, it is absolutely essential that charges state the “total amount due as the date on which the order is to be made”, so that the court may specify the total amount due to the chargee at the date on which the order is made. It is imperative, therefore, the charges state the aggregate sum of the principal and overdue interest due at the date on which the order is made. Indeed, given that the “state of the account between the chargor and charge at the date on which the order is made” is the aggregate sum of the principal and overdue interest due on the date the order is made rather than the aggregate sum of the principal and overdue interest due at the date of the affidavit, knowledge of the “amount of the interest in arrear at the date of the affidavit” or absence thereof has no real significance. Rather, it is knowledge of the principal and overdue intereset due at the date on which the order is made that holds real significance. In the present case, the defendants had not been deprived of that knowledge. They knew and they know the exact amount outstanding under the charge. The defendants had not been deprived of any opportunity to repay the defendant. Therefore, the plaintiff’s failure to state the “amount of the interest in arrear at the date of the affidavit” had not prejudiced the defendants and there was no cause to the contrary.” [24] Di dalam kes ini, Plaintif di dalam Afidavit Balasan 2 (Kandungan 12 ) di Eksibit MNN-8, telah menunjukkan secara terperinci jumlah yang dituntut oleh Plaintif terhadap Defendan bagi akaun pinjaman perumahan No. 414187916568 di mana jumlah keberhutangan Defendan kepada Plaintif adalah jumlah yang terhutang dari 1.5.2012 sebanyak RM87,332.99 (jumlah tertunggak semasa penghakiman terus diperolehi) termasuklah jumlah kos kepeguaman atas dasar peguamcara dan anak guam yang termaktub di dalam klausa 14.08 gadaian. Keseluruhan jumlah terhutang setakat 27.8.2014 pada masa Kandungan 1 difailkan adalah RM151,691.65 seperti dinyatakan di dalam perenggan 11 Kandungan 12. Di dalam kes ini Defendan sememangnya tahu dan mengetahui jumlah keberhutangannya bagi akaun pinjaman perumahannya dan cuba mengelak dengan mengatakan bahawa jumlah sebenar hutangnya tidak jelas kerana ada akaun lain iaitu akaun overdraf yang telah diselesaikan sepenuhnya olehnya. Plaintif sendiri telah mengakui bahawa akaun overdraf Defendan telah diselesaikan sepenuhnya oleh Defendan dan jumlah yang masih tertunggak adalah hanya akaun pinjaman perumahan Defendan. [25] Justeru, di dalam kes ini, adalah menjadi dapatan Mahkamah ini bahawa Defendan hanya setakat mempertikaikan jumlah terhutang tetapi tidak berupaya menunjukkan apakah jumlah yang tidak tepat dan jumlah yang memihak kepadanya. Mahkamah ini mengulangi lagi bahawa Defendan sememangnya tahu dan mengetahui jumlah keberhutangannya bagi akaun pinjaman perumahannya dan cuba mengelak dengan pengataan kosong bahawa jumlah sebenar hutangnya tidak diperincikan dengan cukup dan maka jumlahnya tidak jelas. Bagi Mahkamah ini pengataan kosong sebegini yang mana Defendan telah gagal menyatakan secara spesifik dan nyata jumlah yang tidak jelas, adalah alasan atau dakwaan yang tidak cukup untuk menjadikan ia suatu kausa yang bertentangan. Alasan (ii): Defendan telah menyelesaikan sepenuhnya jumlah terhutang dan malahan Defendan telah terlebih bayar kepada Plaintif. [26] Plaintif mengesahkan bahawa apa yang telah dijelaskan sepenuhnya oleh Defendan adalah kemudahan overdraf. Namun bagi pinjaman perumahan yang diberikan, Defendan masih lagi belum menjelaskan hutang tertunggak, justeru itulah Plaintif menguatkuasakan remedi statutori yang ada pada Plaintif. [27] Menurut Plaintif lagi, Eksibit “MNN-6”, Kandungan 2 telah menunjukkan dengan jelas akaun 414187916568 bagi pinjaman perumahan yang menunjukkan jumlah yang terhutang oleh Defendan kepada Plaintif setakat 27.8.2014 yakni pada masa Kandungan 1 difailkan. [28] Dalam hal ini, akaun ini telah menunjukkan bahawa jumlah ini adalah jumlah bagi pinjaman perumahan yang diberikan berjumlah RM40,000.00 dan ianya bukanlah bagi akaun kemudahan overderaf. [29] Adalah menjadi dapatan Mahkamah ini bahawa alasan ini juga tidak terjumlah kepada satu kausa yang bertentangan. Alasan (iii): Notis Borang 16D adalah cacat dan tak sah kerana jumlah yang dituntut tidak terhutang oleh Defendan. [30] Defendan cuba membangkitkan kecacatan Notis 16D dengan hanya menyatakan bahawa tiada hutang tertunggak oleh Defendan kepada Plaintif. Alasan ini pastinya gagal bagi mengwujudkan sesuatu kausa yang bertentangan dengan dapatan Mahkamah ini yang telah diputuskan bagi alasan (i) dan (ii). Alasan (iv): Tindakan Plaintif adalah diestop atas prinsip res judicata kerana Plaintif telah memfailkan prosiding halang tebus atas hartanah tersebut di dalam Saman Pemula No. 24-1821-2011 yang telahpun ditolak oleh Mahkamah. Maka pertikaian Plaintif dan Defendan mengenai hartanah tersebut telahpun dibicarakan dan diputuskan. [31] Prinsip res judicata tidak terpakai di dalam kes ini kerana apabila mahkamah menolak permohonan Plaintif di dalam Saman Pemula 24-1821-2011, merit kes tidak didengar oleh YA Hakim. YA Hakim telah menolak permohonan Plaintif atas alasan Penyata Akaun yang tidak teratur. [32] Untuk alasan ini, memadai jika kes Kandiah Peter v Public Bank Bhd [1994] 1 MLJ 119 dirujuk. Di dalam kes Kandiah Peter ini, Mahkamah Agung telah memutuskan antara lain bahawa: “[1] A chargee who makes an application for an order for sale in foreclosure proceedings under s 256 of the code does not commence an action. He merely enforces his rights as a charge by exercising his statutory remedy against the chargor in default. The order for sale when made under s 256 of the code is not a judgment or a decree. The court hearing the application for foreclosure does not make, and in any event ought not to make, any adjudication upon any substantive issues. [2] In order for the doctrines of res judicata, cause of action estoppel or issue estoppel, the earlier proceedings must have resulted in a final judgment or decree. This requirement is not met by foreclosure proceedings which do not result or terminate in a final judgment or decree. [3] Where a chargor raises issues and relies upon facts to show “cause to the contrary” in proceedings brought by the charge under s 256 of the code, he is not barred from bringing a fresh action against the charge, notwithstanding that an order for sale has been made, and raising in that action the same or similar facts and issues as those raised by him in the foreclosure proceedings. Neither res judicata nor cause of action estoppels not issue estoppels are available answers to the chargee to meet the chargor’s action.” [33] Apatah lagi di dalam kes prosiding halang tebus pertama yang telah dimulakan oleh Plaintif, ianya telah ditolak atas penyata akaun yang tidak teratur. Ini jelas tertera pada minit YA Hakim di dalam kes Saman Pemula No. 24-1821-2011 yang telah di eksibitkan di eksibit “MNN-11” Kandungan 7 yang ditulis: Saman ditolak – statement of account not in order dengan kos RM 2000.00. [34] Untuk itu, Mahkamah ini suka juga merujuk kes RHB Bank Berhad v. Govindaraju [2012] 6 MLR 419, di mana YA Harmindar Singh Dhaliwal telah memutuskan antara lain seperti berikut: “(1) The court did not indicate that the first OS was heard on the merits and there was no judgment of the court to show the same. Further, regardless of the fact that the Plaintiff’s first OS was dismissed, the Plaintiff, as a charge, was legally entitled to initiate a fresh foreclosure proceeding against the Defendant. In foreclosure proceedings, estoppel and res judicata was not available to the chargor as a bar to bringing a fresh action by a charge. (para 12)” Alasan (v): Tindakan Plaintif dihalang oleh had masa kerana Plaintif tidak menimbulkan atau mengemukakan tarikh kemungkiran di pihak Defendan. [35] Telah dinyatakan di atas bahawa tindakan halang tebus yang diambil oleh penggadai bukanlah suatu tindakan yang dimulakan penggadai tetapi ianya hanya merupakan suatu penguatkuasaan hak statutorinya, maka isu had masa yang ditimbulkan oleh Defendan tidak mempunyai merit atau tidak berasas. [36] Dalam hal ini suka mahkamah ini merujuk kepada kes Peh Lai Huat v. MBF Finance Bhd. [2011] 3 MLJ 470 di mana Mahkamah Rayuan telah memutuskan antara lain bahawa: “…Similarly, S 21(2) of the Limitation Act which reads:- (2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclose accrued: Provided that if after that date the mortgagee was in possession of the mortgaged property, right to foreclose on the property which was in his possession shall not, for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued. Also has no application to this case. That is because the cause of action here, that is to say, the right to exercise the statutory remedy of an Order for Sale did not arise until after the Appellate had failed to remedy the default specified in the Form 16D notice…” Kesimpulan dan keputusan Mahkamah: [37] Adalah menjadi dapatan Mahkamah ini bahawa alasan-alasan yang ditimbulkan Defendan di dalam percubaannya untuk membuktikan atau menunjuk sebab atau mengwujudkan kausa yang bertentangan bagi menghalang satu perintah penjualan hartanah tersebut melalui lelongan awam adalah alasan-alasan penafian semata-mata yang tidak langsung termasuk di dalam mana-mana tiga kategori yang telah diputuskan oleh Mahkamah Agung di dalam kes Low Lee Lian. [38] Justeru, Mahkamah ini membenarkan permohonan Plaintif di dalam Kandungan 1 di mana Mahkamah ini memberikan perintah untuk menjual hartanah tersebut melalui lelongan awam atas terma-terma yang dinyatakan dalam Kandungan 1 dan Defendan membayar kos kepada Plaintif seperti dalam perenggan 7, Kandungan 1 atas dasar peguamcara dan anak guamnya. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 22hb Januari 2015 Peguam Plaintif - Tetuan Izauddin, Firdaus & Mahendran Encik S.Mahendran Peguam Defendan - Tetuan Esther Ong Tengku Saiful & Sree Cik Nicole Lee Hui Ching 33

Tika 2.6.0

21NCVC-17-05/2014

PLAINTIF 1) HASSAN BIN MD YUNUS 2) MOHD RAZALI BIN MOHD YUNUS DEFENDAN 1) MOO SIN UNG 2) MOK WAH HING 3) LIM LAY SOO 4) RAZILA BINTI RASHID 5) PENTADBIR TANAH GOMBAK

06/01/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5747beb1-1a93-4b5a-8e1f-f5ba20238625&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. 21NCVC-17-05/2014 ANTARA 1) HASSAN BIN MD YUNUS 2) MOHD RAZALI BIN MOHD YUNUS ... PLAINTIF-PLAINTIF DAN 1) MOO SIN UNG 2) MOK WAH HING 3) LIM LAY SOO 4) RAZILA BINTI RASHID 5) PENTADBIR TANAH GOMBAK … DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (Kandungan 6) [1] Kandungan 6 ini adalah permohonan pihak Defendan Kedua dan Defendan Ketiga untuk membatalkan Writ Saman dan Penyataan Tuntutan Plaintif-Plaintif terhadap kedua-dua mereka menurut Aturan 18 Kaedah 19 (1)(a),(b) dan/ atau (d) Kaedah-Kaedah Mahkamah 2012 (KKM 2012) atas alasan-alasan berikut : i. ia tidak mendedahkan apa-apa kausa tindakan yang munasabah (“no reasonable cause of action”); ii. ia adalah mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious”); iii. ia adalah suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court”) [2] Fakta kes menurut pliding yang difailkan adalah seperti berikut: 2.1 Hassan bin Md. Yunus (Plaintif Pertama) dan Mohd Razali bin Mohd Yunus (Plaintif Kedua) adalah dua orang individu yang masing-masing beralamat di No. 156, Lorong Keramat 7, Kampung Datuk Keramat, Wilayah Persekutuan dan di Lot 9780 Jalan 2/1 Kg. Melayu Kepong, 52100 Wilayah Persekutuan. 2.2 Plaintif Pertama mendakwa beliau adalah merupakan pentadbir pusaka yang sah bagi harta pusaka Siti binti Mohamed Yusof (si mati) yang telah meninggal dunia pada 2.3.1972. 2.3 Plaintif Kedua pula mendakwa bahawa beliau adalah waris sah si mati dan membantu Plaintif Pertama dalam menguruskan hartanah tersebut memandangkan keadaan kesihatan dan umur Plaintif Pertama. 2.4 Plaintif Pertama dan Plaintif Kedua (kedua-dua Plaintif) mendakwa bahawa si mati adalah pemilik sah dan berdaftar sebuah hartanah yang dikenali sebagai Lot 3203, No. GM. 4443, Mukim Rawang, Daerah Gombak, Negeri Selangor (hartanah tersebut). 2.5 Moo Sin Ung (Defendan Pertama), Mok Wah Hing (Defendan Kedua) dan Lim Lay Soo (Defendan Ketiga) adalah individu-individu yang beralamat masing-masing di No. 3-4-12 Jalan Cecawi 6/30, Seksyen 6, Kota Damansara, 47810 Petaling Jaya, Selangor Darul Ehsan, No. 2 Jalan Ramin 1, Country Heights Damansara, 60000 Kuala Lumpur dan No. 2 Jalan Ramin 1, Country Heights Damansara, 60000 Kuala Lumpur. 2.6 Razila binti Rashid (Defendan Keempat) ialah seorang Peguambela dan Peguamcara yang beramal di Tetuan Razila Rashid & Partners dan mempunyai alamat penyampaian di No. 2-43, Jalan Prima SG2, Taman Prima Sri Gombak, 68100 Batu Caves, Selangor Darul Ehsan. 2.7 Pentadbir Tanah Gombak (Defendan Kelima) adalah badan berkuasa awam yang berkuasa ke atas pendaftaran pindahmilik hartanah bagi daerah Gombak, Selangor dan mempunyai alamat penyampaian di Pejabat Daerah dan Tanah Gombak, Bangunan Sultan Sulaiman KM 16 Jalan Rawang, 68100 Batu Caves, Selangor. 2.8 Kedua-dua Plaintif telah memfailkan guaman ini terhadap kelima-lima Defendan dan di dalam Penyataan Tuntutan mereka yang difailkan pada 12 Mei 2014 mereka telah memohon antara lain relif-relif berikut: (a) perintah deklarasi bahawa pindahmilik pertama hartanah tersebut kepada Defendan Pertama tidak sah, batal dan tiada kuatkuasa. (b) perintah bahawa pendaftaran Defendan Pertama sebagai pemilik hartanah tersebut diketepikan dan/atau dibatalkan serta-merta. (c) perintah deklarasi bahawa pindahmilik kedua hartanah tersebut kepada Defendan Kedua dan Defendan Ketiga tidak sah, batal dan tiada kuatkuasa. (d) perintah bahawa pendaftaran Defendan Kedua dan Ketiga sebagai pemilik hartanah tersebut diketepikan dan/atau dibatalkan serta-merta. (e) perintah deklarasi bahawa si mati Siti binti Hj Mohamed Yusof adalah pada setiap masa merupakan pemilik berdaftar dan benefisial hartanah tersebut. (f) perintah bahawa hakmilik hartanah tersebut didaftarkan di atas nama si mati iaitu Siti binti Hj Mohamed Yusof dan Plaintif Pertama didaftarkan sebagai pentadbir hartanah tersebut. (g) gantirugi am, gantirugi teruk dan gantirugi teladan untuk ditaksirkan terhadap setiap Defendan-Defendan. 2.9 Di dalam Penyataan Tuntutan mereka, kedua-dua Plaintif telah memplidkan pengataan-pengataan berikut: (i) hartanah tersebut adalah didaftarkan atas nama si mati dan si mati memiliki hartanah tersebut dengan sepenuhnya. (ii) Plaintif Kedua, sebagai waris si mati yang bertanggungjawab membayar cukai tanah atau apa-apa cukai yang kena bayar bagi hartanah tersebut telah pergi ke Majlis Perbandaran Selayang (MPS) pada 24.8.2011 untuk membayar cukai taksiran hartanah tersebut tetapi apabila di MPS, beliau telah mendapati bahawa nama pemilik hartanah yang dicatatkan pada notis taksiran bagi hartanah tersebut adalah di atas nama Defendan Pertama. (iii) kedua-dua Plaintif menegaskan bahawa tidak ada mana-mana waris si mati telah memasuki apa-apa transaksi dengan Defendan Pertama berkaitan dengan hartanah tersebut. Atas penemuan fakta tersebut Plaintif Kedua telah membuat satu laporan polis pada 25.8.2011. (iii) Plaintif Kedua kemudiannya telah membuat carian rasmi ke atas hartanah tersebut dan telah mendapati bahawa hartanah tersebut telah dipindahmilik pada 17.12.2010 oleh seorang yang dikenali sebagai Siti binti Hj Mohamed Yusof (No. K/P: 400405-04-5032/4035607) yang beralamat di No. 66, Jalan Wangsa 11, Wangsa Ukay Ulu Klang, 68000 Ampang, Selangor kepada Defendan Pertama dengan balasan sebanyak RM800,000.00 (pindahmilik pertama). Plaintif Kedua mendapat tahu bahawa transaksi dan suratcara pindahmilik pertama tersebut telah dikendalikan oleh Defendan Keempat. (iv) bagi menjaga hak dan kepentingan Plaintif Kedua dan waris-waris si mati ke atas hartanah tersebut, Plaintif Kedua telah memasukkan kaveat persendirian No. 3546/2011 (kaveat tersebut) pada 25.8.2011. (v) semasa mendaftarkan kaveat tersebut, Plaintif Kedua seterusnya mendapati bahawa hartanah tersebut telah dipindahmilik pula oleh Defendan Pertama kepada Defendan Kedua dan Ketiga pada 06.05.2011 dengan balasan RM5,488,560.00 (pindahmilik kedua). Transaksi dan suratcara pindahmilik kedua ini juga dikendalikan oleh Defendan Keempat. (vi) carian Plaintif Kedua seterusnya mendapati bahawa nama dan no. kad pengenalan serta alamat yang dicatatkan pada dokumen pindahmilik (Borang 14A) pindahmilik pertama adalah atas nama Siti binti Hj Mohamed Yusof yang mempunyai nombor kad pengenalan sebagai 400405-04-5032/4035607 (No. K/P tersebut) (vii) Plaintif Kedua mendakwa si mati tidak mempunyai No. K/P sedemikian dan transaksi tersebut telah dilaksanakan oleh seorang yang bernama Siti Rahmah binti Mohd Yusof dan beralamat di No. 66, Jalan Wangsa 11, Wangsa Ukay Ulu Klang, 68000 Ampang, Selangor dengan no. K/P: 400405-04-5032/4035607. (viii) kedua-dua Plaintif telah seterusnya memplidkan bahawa pada geran hakmilik asal hartanah tersebut, hanya nama si mati yang dicatatkan, tanpa no. kad pengenalan dan si mati juga tidak pernah tinggal di alamat No. 66, Jalan Wangsa 11, Wangsa Ukay Ulu Klang, 68000 Ampang, Selangor. Si mati adalah beralamat di No. 24, Jalan Hamzah, Kampong Baru, Kuala Lumpur dan/atau Lot 9780, Jalan 2/1, Kg. Melayu Kepong, 52100 Kuala Lumpur. [3] Berdasarkan pengataan-pengataan yang sedemikian, kedua-dua Plaintif telah mendakwa bahawa pindahmilik pertama dan pindahmilik kedua adalah tidak sah, batal dan tiada kuatkuasa kerana dilakukan secara frod dan/atau instrumen yang tidak mencukupi/batal. Atas dakwaan tersebut, kedua-dua Plaintif telah menyenaraikan butir-butir perlakuan frod Defendan Pertama, Kedua dan Ketiga dalam perenggan-perenggan 15 dan 16 Penyataan Tuntutan mereka. Manakala di perenggan 17 pula, kedua-dua Plaintif telah menyenaraikan butir-butir kecuaian Defendan Keempat serta kemungkiran kewajipan berjaga-jaga Defendan Keempat di dalam mengendalikan transaksi pindahmilik Pertama dan Kedua tersebut. [4] Butir-butir kecuaian dan kemungkiran kewajipan berjaga-jaga Defendan Kelima pula telah dibutirkan oleh kedua-dua Plaintif di perenggan 18 Penyata Tuntutan mereka. [5] Tiada kehadiran telah dimasukkan oleh Defendan Pertama, Defendan Keempat dan Defendan Kelima dan menurut rekod Mahkamah, tiada Afidavit Penyampaian telah difailkan oleh Plaintif bagi membuktikan Writ Saman dan Penyata Tuntutan telah diserahkan kepada ketiga-tiga mereka. [6] Defendan Kedua dan Defendan Ketiga telah menentang tindakan dan menafikan sekeras-kerasnya dakwaan kedua-dua Plaintif terhadap mereka. Justeru itu, Defendan Kedua dan Defendan Ketiga telah memfailkan Penyataan Pembelaan mereka dengan merezabkan hak mereka untuk memfailkan permohonan untuk membatalkan Writ Saman dan Penyataan Tuntutan kedua-dua Plaintif. Defendan Kedua dan Defendan Ketiga bukan sahaja menyangkal dakwaan kedua-dua Plaintif tersebut tetapi juga menuntut balas terhadap kedua-dua Plaintif dengan memohon antara lain perintah-perintah berikut: (a) perintah deklarasi bahawa kes tindakan Plaintif-Plaintif terhadap Defendan Kedua dan Defendan Ketiga adalah salah dan tidak sah di sisi undang-undang. (b) perintah deklarasi bahawa Defendan Kedua dan Defendan Ketiga mempunyai hak untuk menuntut balik pampasan yang dialami oleh mereka jika Plaintif-Plaintif berjaya mendakwa curang terhadap Defendan Pertama. (c) perintah bahawa kaveat persendirian dan/atau kaveat pendaftar harus dibatalkan dalam masa lima (5) hari bermula dari tarikh perintah dengan kos ditanggung oleh Responden. (d) perintah deklarasi bahawa Plaintif-Plaintif dan/atau sesiapa adalah dihalang daripada memasukkan kaveat persendirian dan kaveat pendaftar ke atas hartanah tersebut; (e) perintah deklarasi bahawa Plaintif-Plaintif dan/atau sesiapa yang berkaitan dengan Plaintif-Plaintif adalah dihalang untuk mengganggu Defendan Kedua dan Defendan Ketiga daripada menikmati keamanan hartanah tersebut. [7] Kedua-dua Defendan yang menyangkal dakwaan kedua-dua Plaintif menimbulkan antara lain pembelaan-pembelaan berikut: 7.1 kedua-dua Plaintif sebenarnya tidak mempunyai asas tindakan yang munasabah terhadap kedua-dua Defendan kerana terdapat guaman terdahulu yang difailkan oleh kedua-dua Plaintif terhadap Defendan Kedua dan Defendan Ketiga dan empat orang yang lain (Siti Rahmah binti Mohd Yusof, Moo Sin Ung, Razila binti Rashid dan Pentadbir Tanah Gombak) yang telahpun ditolak dengan kos. Di dalam guaman terdahulu, tindakan terhadap Siti Rahmah telah dibatalkan dengan kos atas permohonan Siti Rahmah pada 14.6.2013, manakala tindakan terhadap Defendan Kedua dan Defendan Ketiga telah dibatalkan oleh mahkamah dengan kos RM5000.00 pada 30.8.2013. Justeru itu, isu-isu di dalam guaman ini adalah isu-isu yang sama telah ditimbulkan oleh kedua-dua Paintif di dalam guaman terdahulu dan isu-isu tersebut telah diputuskan oleh mahkamah. 7.2 kedua-dua Plaintif diletakkan beban bukti yang kukuh akan kapasiti dan kedudukan (status) mereka dengan Siti binti Mohd Yusof dan juga beban bukti kukuh akan ketuanpunyaan Siti binti Mohd Yusof ke atas hartanah tersebut. 7.3 kedua-dua Plaintif telah memfailkan tindakan ini dengan “unclean hands”. 7.4 tindakan kedua-dua Plaintif adalah di luar batasan masa undang-undang. Permohonan kedua-dua Defendan di Kandungan 6 [8] Seperti yang dinyatakan awal tadi, Defendan Kedua dan Defendan Ketiga (selepas daripada ini akan dirujuk sebagai “kedua-dua Defendan”) telah memfailkan Penyataan Pembelaan dan Tuntutan Balas mereka dengan merezabkan hak mereka untuk memfailkan permohonan untuk membatalkan Writ Saman dan Penyata Tuntutan kedua-dua Plaintif terhadap mereka. Selaras dengan pengataan tersebut, pada 3.11.2014 kedua-dua Defendan telahpun memfailkan Kandungan 6 ini. [9] Permohonan Kandungan 6 ini disokong oleh afidavit sokongan yang diikrarkan oleh Lim Lay Soo dan Mok Wah Hing pada 31 Oktober 2014. [10] Afidavit sokongan kedua-dua Defendan menegaskan perkara-perkara berikut: (i) sebelum pemfailan guaman ini, kedua-dua Plaintif pada 7.3.2013 melalui Guaman Sivil No. 22NCVC-25-03/2013 di Mahkamah Tinggi Shah Alam (Guaman 1) telahpun memfailkan suatu Writ Saman dan Pernyataan Tuntutan terhadap kedua-dua orang Defendan dan 4 orang lain iaitu Siti Rahmah binti Mohd Yusof dijadikan sebagai Defendan Pertama, Moo Sin Ung sebagai Defendan Kedua, Razila binti Rashid sebagai Defendan Kelima, manakala Pentadbir Tanah, Pejabat Daerah Tanah Gombak sebagai Defendan Keenam. Guaman 1 ini telah dieksibitkan sebagai Eksibit “LM-7”. (ii) Di dalam Guaman 1 tersebut, kedua-dua Plaintif telah memohon relif-relif berikut: (a) Deklarasi bahawa pendaftaran nama SITI BINTI HAJI MOHAMED YUSOF (No. Kad Pengenalan: 400405-04-5032/4035607) yang digunakan oleh Defendan Pertama atas hartanah No. Lot 3203, No. GM 4443, Mukim Rawang adalah batal dan tidak sah; (b) Deklarasi bahawa pindahmilik tanah daripada SITI BINTI HAJI MOHAMED YUSOF (No. Kad Pengenalan: 400405-04-5032/4035607) kepada MOO SIN UNG (No. Kad Pengenalan 620906-01-5047) yang didaftarkan pada 29/12/2010 adalah batal dan tidak sah; (c) Deklarasi bahawa pindahmilik tanah daripada Moo Sin Ung (No. Kad Pengenalan: 700720-08-5282) dan Lim Lay Soo (No. Kad Pengenalan: 620906-01-5047) dan MOK WAH HING (No. Kad Pengenalan: 571025-08-5709) pada 19/07/2011 adalah batal dan tidak sah; (d) Deklarasi bahawa hartanah tersebut dikekalkan atas hakmilik yang asal Siti binti Mohamed Yusof yang mana waris-warisnya termasuk Plaintif kekal sebagai pentadbir hartanah sah bagi hartanah tersebut. (e) Satu perintah mandamus supaya Defendan Keenam mematuhi keputusan yang dibuat oleh Mahkamah Yang Mulia ini; (f) Satu perintah supaya nama SITI BINTI MOHAMED YUSOF (No. Kad Pengenalan: 400405-04-5032/40356070 dikeluarkan dari didaftarkan sebagai tuan punya berdaftar hartanah tersebut dan digantikan dengan nama SITI BINTI HAJI MOHAMED YUSOF, si mati. (iii) Di dalam Penyataan Tuntutan bagi Guaman 1 tersebut, kedua-dua Plaintif telah memplidkan antara lain bahawa: (a) Ibu mereka bernama Siti binti Haji Mohamed Yusof adalah tuanpunya hartanah tersebut dan telah meninggal dunia pada 2.3.1972 dengan Pendaftaran Kematian A509924. (b) Defendan Pertama iaitu Siti Rahmah binti Mohamed Yusof dengan menyamar sebagai Siti binti Haji Mohamed Yusof telah secara frod atau curang memindahmilik hartanah tersebut kepada Moo Sin Ung (Defendan Kedua dalam Guaman 1) dengan balasan RM800,000.00 yang mana pindahmilik itu telah disempurnakan suratcaranya oleh Razila binti Rashid peguamcara yang mengendalikan antara pemindahmilik tersebut pada 31.12.2012. (c) kemudiannya, kedua-dua Plaintif mendapati hartanah tersebut telah dipindahmilik (pindahmilik kedua) oleh Defendan Kedua kepada Defendan Ketiga dan Keempat dengan balasan sebanyak RM5,488,560.00. Suratcara transaksi kedua ini turut dikendalikan oleh Defendan Kelima selaku peguamcara. (d) Defendan Keenam melalui pegawainya yang bernama Khairil Anuar dan disahkan oleh pegawai bernama Siti Zabedah binti Baharum telah meluluskan dan mendaftarkan pindahmilik-pindahmilik hartanah tersebut yang dilaksanakan secara tidak sah. (iii) Di dalam Guaman 1 tersebut walaupun Defendan Kedua dan Defendan Ketiga telah dijadikan sebagai Defendan Ketiga dan Defendan Keempat, selain daripada pengataan bahawa Moo Sin Ung telah memindahmilik hartanah tersebut kepada kedua-dua Defendan dengan balasan RM5,488,560.00, kedua-dua Plaintif tidak memplidkan sebarang perlakuan curang terhadap kedua-dua Defendan. (v) Pada 6.5.2013, Defendan Pertama iaitu Siti Rahmah binti Mohd Yusof telah memfailkan permohonan untuk membatalkan tindakan kedua-dua Plaintif terhadapnya. Pada 14.6.2013, permohonan Siti Rahmah binti Haji Mohd. Yusof telah dibenarkan oleh Mahkamah dengan kos dan kesan daripada perintah tersebut Writ Saman dan Penyata Tuntutan terhadap Siti Rahmah telah dibatalkan. (vi) Writ Saman dan Penyata Tuntutan kedua-dua Plaintif terhadap kedua-dua Defendan di dalam Guaman 1 juga telah dibatalkan dengan kos RM5000.00 oleh Mahkamah pada 30.8.2013 dengan kebebasan memfailkan semula. (vii) Tiada sebarang rayuan telah difailkan oleh kedua-dua Plaintif atas pembatalan tuntutan kedua-dua mereka terhadap Siti Rahmah binti Mohd Yusof. (viii) Kedua-dua Plaintif masih belum dan/atau gagal dan/atau enggan membayar kos RM5,000.00 kepada kedua-dua Defendan sehingga kini. [11] Perlu dinyatakan di dalam guaman di hadapan mahkamah ini, Siti Rahmah binti Mohd. Yusof (Siti Rahmah) yang merupakan Defendan Pertama di dalam Guaman 1 tidak dijadikan sebagai pihak oleh kedua-dua Plaintif di dalam guaman ini. Alasan (i): kedua-dua Plaintif tiada kausa tindakan yang munasabah terhadap kedua-dua Defendan [12] Adalah dihujahkan bagi pihak kedua-dua Defendan bahawa kedua-dua Plaintif tidak mempunyai asas tindakan yang munasabah ke atas kedua-dua Plaintif atas alasan-alasan berikut: (a) kedua-dua Plaintif tidak mempunyai kapasiti undang-undang untuk membawa tindakan terhadap kedua-dua Defendan kerana kedua-dua Plaintif tidak ada kaitan langsung dengan Siti Binti Mohd Yusof dan hartanah tersebut. (b) rantaian kausa tindakan frod dan/atau curang telahpun terputus dari permulaan lagi. (c) hak kedua-dua Defendan ke atas hartanah tersebut adalah hak yang tidak boleh disangkal (indefeasible). (a) kedua-dua Plaintif tidak mempunyai kapasiti undang-undang untuk membawa tindakan terhadap kedua-dua Defendan kerana kedua-dua Plaintif tidak ada kaitan langsung dengan Siti binti Mohd Yusof dan hartanah tersebut. [13] Kedua-dua Defendan telah meletakkan beban pembuktian yang kukuh terhadap kedua-dua Plaintif mengenai kapasiti undang-undang kedua-dua Plaintif untuk membawa tindakan ini. Kedua-dua Defendan menyangkal pengataan bahawa kedua-dua Plaintif mempunyai kaitan dengan Siti binti Mohd Yusof dan hartanah tersebut. Adalah dihujahkan oleh peguam bagi pihak kedua-dua Defendan bahawa tidak ada sebarang bukti telah dikemukakan oleh kedua-dua Plaintif untuk membuktikan bahawa si mati adalah merupakan pemilik asal hartanah tersebut. Menurut peguam lagi, Plaintif Pertama hanya setakat membuat pengataan di dalam Penyataan Tuntutan bahawa beliau adalah pentadbir pusaka si mati tetapi tiada sebarang surat pentadbiran telah dieksibitkan oleh kedua-dua Plaintif di dalam afidavit jawapan mereka untuk membuktikan bahawa Plaintif Pertama adalah pentadbir pusaka si mati. Justeru itu, adalah dihujahkan bagi pihak kedua-dua Defendan, kedua-dua Plaintif tidak mempunyai hak di sisi undang-undang untuk membawa tindakan terhadap kedua-dua Defendan. (b) rantaian kausa tindakan frod dan/atau curang telahpun terputus dari permulaan lagi. [14] Peguam bagi kedua-dua Defendan telah menghujahkan bahawa Siti Rahmah yang telah didakwa oleh kedua-dua Plaintif kononnya menyamar sebagai si mati telah dengan perlakuan frod dan/atau curangnya telah memindahmilik hartanah tersebut kepada Defendan Pertama dengan balasan RM 800,000.00. Maka dengan ini, Siti Rahmah adalah pemula transaksi frod dan/atau curang terhadap hartanah tersebut. Tindakan atau tuntutan kedua-dua Plaintif terhadap Siti Rahmah di dalam Guaman 1 telah dibatalkan oleh mahkamah atas permohonan Siti Rahmah dan tidak ada rayuan difailkan terhadap keputusan tersebut. Siti Rahmah juga tidak dijadikan pihak di dalam guaman ini. [15] Peguam kedua-dua Defendan berhujah lagi bahawa apabila tindakan terhadap Siti Rahmah telah dibatalkan maka Siti Rahmah tidak pernah memiliki hartanah tersebut dan tidak menyamar sebagai si mati dan tidak pernah memindahmilik hartanah tersebut kepada Defendan Pertama (Moo Sin Ung) dengan balasan RM800,000.00. Maka, alegasi terhadap Siti Rahmah sebagai orang yang memulakan transaksi pindahmilik secara frod dan/atau secara curang tiada lagi untuk mengaitkan perlakuan frod dan/atau curang di pihak kedua-dua Defendan. [16] Peguam kedua-dua Defendan selanjutnya menghujahkan bahawa dengan itu rantaian kausa tindakan frod dan/atau curang telah terputus dari permulaan lagi dan maka kedua-dua Plaintif tidak mempunyai apa-apa kausa tindakan yang munasabah atau tidak ada kausa tindakan langsung terhadap kedua dua Defendan. Untuk hujahan ini peguam bergantung kepada keputusan Mahkamah Rayuan di dalam Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394. (b) hak kedua-dua Defendan ke atas hartanah tersebut adalah hak yang tidak boleh disangkal ( indefeasibility of title). [17] Adalah menjadi hujahan peguam bagi kedua-dua Defendan bahawa kedua-dua Defendan merupakan pembeli yang suci hati untuk balasan nilai dan sememangnya telah membeli hartanah tersebut daripada Defendan Pertama. Menurut peguam lagi, kedua-dua Defendan telahpun menjelaskan bayaran penuh balasan hartanah tersebut dan Notis Taksiran Pindahmilik Hartanah tersebut telah pun dijelaskan sepenuhnya kepada Lembaga Hasil Dalam Negeri. Hartanah tersebut telah dipindahmilik kepada kedua-dua Defendan dan mereka berdua adalah merupakan pemilik berdaftar hartanah tersebut pada masa kini. Adalah dihujahkan juga oleh peguam kedua-dua Defendan proses pindahmilik hartanah tersebut adalah sempurna, betul dan sah di sisi undang-undang. [18] Adalah seterusnya dihujahkan bagi pihak kedua-dua Defendan bahawa kedua-dua Defendan adalah merupakan pembeli suci hati untuk balasan bernilai yang seterusnya dan/atau berikutnya yang mempunyai hakmilik yang tidak boleh sangkal (indefeasible). Untuk hujahan ini peguam kedua-dua Defendan bergantung kepada seksyen 340 (1), (2) dan (3) Kanun Tanah Negara 1965 dan kes Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1. [19] Adalah juga dihujahkan bahawa kedua-dua Plaintif tidak harus menuntut terhadap kedua-dua Defendan dengan mengecualikan orang yang memulakan transaksi pertama yang mempunyai faktor vitiating. Faktor vitiating ini menurut peguam kedua-dua Defendan lagi haruslah ditentukan terdahulu dan tidak harus melangkau dan menuntut terhadap kedua-dua Defendan sahaja sedangkan transaksi pindahmilik yang dilaksanakan ke atas hartanah tersebut kepada kedua-dua Defendan telahpun disempurnakan dan mengikut prosedur yang sah. Alasan (ii) dan (ii) ditentukan bersekali. (ii) Tuntutan kedua-dua Plaintif adalah mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious”) (iii) Tuntutan kedua-dua Plaintif adalah suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court”) [20] Adalah juga dihujahkan bagi pihak kedua-dua Defendan bahawa kedua-dua Plaintif did not come to court with clean hands apabila telah sengaja menyembunyikan fakta-fakta yang benar untuk mengelirukan pihak Mahkamah dengan mengecualikan Siti Rahmah binti Mohd. Yusof sebagai salah seorang Defendan dalam guaman ini. Kedua-dua Plaintif menurut peguam mestilah menyampaikan kesnya dengan terang dan adil dan memberi pendedahan sepenuhnya akan bahan-bahan fakta dalam pengetahuannya. Di dalam guaman ini, kedua-dua Defendan tidak mengiktiraf tuntutan Plaintif-Plaintif terhadap mereka kerana tuntutan kedua-dua Plaintif dibuat adalah mala fide dan tidak berasas. Tindakan kedua-dua Plaintif terhadap kedua-dua Defendan ini adalah sesuatu yang mengaibkan, remeh dan/atau menyusahkan, salah di sisi undang-undang serta merupakan suatu penyalahgunaan proses Mahkamah dan Plaintif-Plaintif tidak mempunyai kausa tindakan untuk membawa tindakan kes ini terhadap kedua-dua Defendan. Tuntutan kedua-dua Plaintif terhadap kedua-dua Defendan adalah dihalang oleh batasan masa [21] Mengenai isu batasan masa, peguam kedua-dua Defendan telah menghujahkan bahawa si mati di dalam guaman ini meninggal dunia pada 2.3.1972. Adalah dihujahkan bahawa kedua-dua Plaintif khususnya Plaintif Pertama telah gagal melaksanakan tanggungjawabnya selaku Pentadbir Pusaka si mati sekiranya benar hartanah tersebut adalah kepunyaan ibu kedua-dua Plaintif. Jikapun dianggap kedua-dua Plaintif berhak membawa tindakan terhadap kedua-dua Defendan, tindakan kedua-dua Plaintif ini telah difailkan di luar had masa yang dibenarkan oleh undang-undang kerana si mati telah meninggal dunia sejak 2.3.1972 lagi. [22] Bagi menentang permohonan kedua-dua Defendan di dalam Kandungan 6 ini, kedua-dua Plaintif telah memfailkan afidavit jawapan yang diikrarkan oleh kedua-duanya pada 18.11. 2014. Di dalam afidavit jawapan mereka, kedua-dua Plaintif hanya membuat tegasan berikut: (a) perolehan dan pindahmilik yang dibuat oleh Defendan Pertama (Moo Sin Ung) tidak sah dan batal (Pertama) maka menyebabkan Defendan Pertama tiada hak yang sah untuk memindahmilik hartanah tersebut kepada kedua-dua Defendan. Defendan Pertama tidak mempunyai hak dan/atau kuasa bagi memindahmilik dan/atau menjual hartanah tersebut kepada kedua-dua Defendan kerana beliau bukanlah pemilik sah hartanah tersebut. Dengan yang demikian doktrin nemo dat qui non habet adalah terpakai. (b) kedua-dua Defendan tidak boleh bergantung kepada perlindungan di bawah seksyen 340(3) Kanun Tanah Negara bahawa hakmilik yang diperolehi mereka adalah hakmilik yang tidak boleh disangkal (indefeasible) kerana mereka bukanlah pembeli suci hati atau bona fide dan dengan ketiadaan pemilikan sah Defendan Pertama ke atas hartanah tersebut, kedua-dua Defendan adalah pemilik/pembeli serta-merta ‘immediate’ hartanah tersebut. (c) memandangkan fakta bahawa transaksi pindahmilik kedua yang dilakukan dalam keadaan segera dan/atau dalam tempoh yang singkat, dan juga melibatkan jumlah transaksi yang terlalu tinggi melebihi jumlah nilaian sebenar hartanah tersebut serta dikendalikan oleh peguamcara yang sama iaitu Defendan Keempat, kedua-dua Defendan adalah terlibat dengan frod yang dilakukan dalam pindahmilik pertama dan/atau mengetahui dan/atau menjangkakan secara munasabah akan frod dalam pindahmilik pertama. (d) hartanah tersebut tidak langsung dimajukan oleh kedua-dua Defendan dan cadangan menjualkannya kepada pihak lain menunjukkan mereka mengetahui hartanah tersebut telah diperolehi dan dipindahmilik secara frod dan tidak sah. Pendaftaran Borang 14A yang meragukan dan cacat kerana nama penerima milik ketiga yang tidak dibatal dengan sempurna; (e) mengenai tindakan kedua-dua Plaintif terhadap kedua-dua Defendan yang telah dibatalkan oleh mahkamah di dalam Guaman 1, tindakan telah dibatalkan mahkamah atas alasan tiada butiran frod dan/atau curang diplidkan terhadap kedua-dua Defendan. Pembatalan oleh mahkamah adalah dengan kebebasan memfailkan semula tindakan terhadap kedua-dua Defendan. Di samping merit kes belum dibicarakan dan diputuskan. (f) mengenai kos sebanyak RM5000.00 yang belum dibayar oleh kedua-dua Plaintif, mahkamah tidak membuat sebarang perintah berhubung tempoh masa pembayaran kos dilakukan dan oleh itu pemfailan guaman ini adalah satu kebebasan yang diberikan oleh Mahkamah. [23] Peguam bagi kedua-dua Plaintif telah menghujahkan bahawa berdasarkan tegasan-tegasan yang telah ditimbulkan oleh kedua-dua Plaintif, terdapat atau wujudnya kausa tindakan relevan dan munasabah terhadap kedua-dua Defendan. Menurut hujahan peguam kedua-dua Plaintif lagi, memandangkan si mati mempunyai hakmilik terhadap hartanah tersebut dan adalah merupakan ibu kepada kedua-dua Plaintif telah meninggal dunia pada 2.3.1972. Dengan kematian tersebut, Plaintif Pertama telah memperolehi perintah mahkamah sebagai Pentadbir Pusaka si mati. Plaintif telah membawa tuntutan terhadap kedua-dua Defendan dengan memplidkan isu dan butiran frod, maka tindakan yang dibawa oleh kedua-dua Plaintif melibatkan isu-isu serius yang perlu dibicarakan dan ditentukan di dalam suatu perbicaraan penuh. Adalah dihujahkan selanjutnya oleh peguam kedua-dua Plaintif tindakan Plaintif terhadap kedua-dua Defendan bukanlah satu tindakan yang plain and obvious serta tidak mendedahkan apa-apa kausa tindakan yang munasabah (“no reasonable cause of action”), mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious”) ataupun suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court”). Undang-undang mengenai permohonan di bawah Aturan 18 Kaedah 19 KKM 2012 [24] Undang-undang mengenai kuasa budi bicara mahkamah di dalam pembatalan tindakan di bawah Aturan 18 Kaedah 19 (A.18 k.19) KKM 2012 adalah jitu dan mantap. Terlalu banyak otoriti yang telah membincangkan dan memutuskan prinsip-prinsip pemakaian kuasa budi bicara mahkamah di bawah A.18 k.19 ini. Memadai sekiranya mahkamah ini merujuk kepada beberapa kes sebagai panduan dan rujukan. [25] Di dalam kes Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, prinsip-prinsip undang-undang mengenai kuasa budi bicara mahkamah di bawah A.18 k.19 ini telah diterangkan dengan begitu jelas oleh Mohamed Dzaiddin HMA (YAA pada ketika itu) seperti berikut: “It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it clearly seen that a claim or answer is on the face of it “obviously unsustainable” (see AG of Duchy of Lancaster v L & NWRly & Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r 3 (which is in pari material with our Order 33 r 2 of the RHC)(see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [26] Di dalam kes Mooney & Ors v Peat Marwick Mitchell & Co & Anor [1967] 1 MLJ 87 Raja Azlan Shah J (DYMM pada ketika itu) di muka surat 88 telah menyatakan seperti berikut: “It is firmly established that the power exercisable under r. 4 “is only appropriate in cases which are plain and obvious so that a judge can say at once that a statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief of which he ask for”: See the judgment of Lindley MR in Hubbuck & Sons v Wilkinsons Heywood & Clark Ltd.(1) Where the situation arises, the pleadings and particulars alone shall be considered and all the allegations in it shall be presumed to be true, and it is only on that assumption that any statable case can be made for this application: see Peck v Russell.(2) The court cannot and indeed is not empowered to look behind the pleadings and particulars if it discloses a reasonable cause of action. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at trial is no ground for it to be struck out: see Boaler v Holder.(3) A recent exposition of the law is afforded by the judgment of Danckwerts LJ in Wenlock v Moloney.(4): “Under the rule (ie. O. 25 r. 4) it had to appear on the face of the plaintiff’s pleadings that the action could not succeed or was objectionable for some other reason. Not evidence could be filed… But, as the procedure was of a summary nature the party was not to be deprived of his right to have his case tried by a proper trial unless the matter was clear.’’ After stating that the former rules are now incorporated in the revised Rules of the Supreme Court, O. 18 r. 19, he continues: “But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.” …” (Sila lihat juga: (i) Arah Cipta Sdn Bhd & Ors v Kian Kee Sawmills (M) Sdn Bhd & Ors [1997] 1AMR 941; (ii) Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 3 AMR 2458; (iii) Tan Keat Seng, Kitson v Kerajaan Malaysia [1996] 1 AMR 536; (iv) Raja Zainal Abidin bin Raja Haji Takchik & Ors v British-American Life & General Insurance Bhd [1993] 2 AMR 2073). Keputusan mahkamah [27] Benarkah seperti yang dihujahkan oleh peguam kedua-dua Plaintif bahawa kedua-dua Plaintif mempunyai kausa tindakan yang relevan dan munasabah terhadap kedua-dua Defendan? Benarkah juga bahawa tindakan mereka bukanlah suatu tindakan yang jelas dan ketara tidak boleh dipertahankan dan dikekalkan dan hendaklah dibatalkan kerana ianya suatu yang remeh temeh, mengaibkan dan suatu penyalahgunaan proses mahkamah? Di dalam kes ini, kedua-dua Defendan telah menyangkal keras dakwaan-dakwaan yang telah ditimbulkan oleh kedua-dua Plaintif dan meletakkan pembuktian kukuh ke atas kedua-dua Plaintif bahawa si mati merupakan pemilik pendulu hartanah tersebut, kedua-dua Plaintif adalah waris si mati dan Plaintif Pertama adalah Pentadbir Pusaka si mati. Maka, persoalan timbul di sini apakah kapasiti undang-undang kedua-dua Plaintif dan kepentingan kedua mereka ke atas hartanah tersebut bagi mengwujudkan hak kedua-dua mereka di sisi undang-undang untuk membawa tindakan terhadap kedua-dua Defendan. Kedua-dua Defendan di perenggan 18 afidavit sokongan Kandungan 6 telah menafikan yang hartanah tersebut kepunyaan si mati dan menegaskan bahawa kedudukan Plaintif Pertama sebagai Pentadbir Pusaka si mati tidak dibuktikan oleh kedua-dua Plaintif. Mahkamah ini telah meneliti afidavit jawapan kedua-dua Plaintif menentang Kandungan 6 dan mendapati bahawa kedua-dua Plaintif telah tidak menjawab langsung tegasan kedua-dua Defendan tersebut tetapi hanya mengatakan kedua-dua mereka adalah waris si mati yang merupakan pemilik asal hartanah tersebut dan mempunyai kepentingan kaveat ke atasnya. [28] Malahan di perenggan 9, Penyataan Tuntutan, Plaintif Kedua telah mendakwa bahawa beliau adalah waris si mati yang membantu Plaintif Pertama menguruskan harta pusaka si mati dan juga mendakwa bahawa segala cukai tanah dan apa-apa bayaran berkaitan hartanah telah dibayar oleh beliau di mana cetakan pada dokumen-dokumen bayaran berkaitan hartanah tersebut masih dicatatkan atas nama si mati telah dikeluarkan kepada beliau. Di samping itu Plaintif Kedua juga mendakwa menyimpan serta memegang geran/hakmilik asal hartanah. [29] Apa yang pelik, peguam kedua-dua Plaintif di dalam hujahan bertulisnya telah menghujahkan bahawa Plaintif Pertama telah memperolehi perintah mahkamah sebagai Pentadbir Pusaka (LA) bagi si mati. Hujahan peguam ini tidak merujuk kepada mana-mana dokumenpun. Lebih pelik lagi, pengataan berkenaan LA telah diperolehi melalui perintah mahkamah tidak langsung diplidkan oleh kedua-dua Plaintif di dalam Penyataan Tuntutan mereka dan tiada juga pengataan tersebut di dalam afidavit jawapan kedua-dua Plaintif. Apa yang jelas dan nyata adalah tegasan-tegasan kedua-dua Plaintif tidak disokong dengan sebarang dokumen dan merupakan pengataan semata-mata tanpa sebarang bukti dokumentar. [30] Berdasarkan alasan-alasan ini, adalah dapatan mahkamah ini bahawa di guaman ini, adalah jelas dan terang bahawa kedua-dua Plaintif melalui Pernyataan Tuntutan dan afidavit mereka tidak langsung dapat menunjukkan yang mereka mempunyai kapasiti undang-undang ataupun hak atau kepentingan ke atas hartanah tersebut yang boleh membangkitkan atau mengwujudkan suatu kausa tindakan terhadap kedua-dua Defendan. Pemfailan guaman ini oleh kedua-dua Plaintif sememangnya adalah suatu yang remeh temeh, mengaibkan dan merupakan penyalahan penggunaan proses Mahkamah. [31] Kausa tindakan kedua-dua Plaintif terhadap kedua-dua Defendan adalah berpremis atau bersandarkan kepada perlakuan frod dan/atau curang Siti Rahmah yang kononnya telah menyamar sebagai si mati. Atas perlakuan frod dan/atau curang Siti Rahmah, kedua-dua Plaintif telah memfailkan Guaman 1 dan Siti Rahmah telah dijadikan sebagai pihak Defendan Pertama di dalam guaman tersebut. Namun begitu, Siti Rahmah telah berjaya membatalkan tindakan terhadapnya dan tiada rayuan telah difailkan atas pembatalan tindakan tersebut oleh kedua-dua Plaintif. Yang nyata dan jelas Siti Rahmah telah tidak dijadikan pihak di dalam guaman ini. Di dalam guaman ini, walaupun Siti Rahmah tidak dijadikan pihak oleh kedua-dua Plaintif, butiran-butiran frod dan/atau perlakuan curang Siti Rahmah atas pindahmilik pertama dan butiran-butiran frod Moo Sin Ung bagi pindahmilik kedua telah diplidkan oleh kedua-dua Plaintif. Namun begitu terhadap kedua-dua Defendan apa yang telah diplidkan oleh kedua-dua Plaintif di perenggan 16 (c) dan (d) Penyataan Tuntutan adalah seperti berikut: (c) Perolehan dan pindahmilik yang tidak sah dan batal ke atas Defendan Pertama menyebabkan beliau tiada hak untuk memindahmilik hartanah tersebut kepada Defendan Kedua dan Ketiga. (d) Defendan Pertama tiada hak dan/atau kuasa bagi memindahmilik dan/atau menjual hartanah tersebut kepada Defendan Kedua dan Ketiga kerana beliau bukanlah pemilik sah hartanah tersebut. Doktrin nemo dat qui non habit adalah terpakai. [32] Daripada penyataan tersebut mahkamah berpendapat bahawa tiada sebarang perlakuan frod dan/atau curang didakwa telah dilakukan atau dibutirkan terhadap kedua-dua Defendan. Dalam hal yang demikian, Mahkamah ini bersetuju dengan hujahan peguam kedua-dua Defendan bahawa apabila tindakan terhadap Siti Rahmah yang dikatakan menyamar sebagai si mati dan merupakan pemula frod ke atas hartanah tersebut telah dibatalkan dan Siti Rahmah juga tidak dijadikan pihak, maka rantaian kausa tindakan frod dan/ atau curang telah terputus dari permulaan lagi. [33] Di dalam guaman ini, kausa tindakan substantif kedua-dua Plaintif adalah berteraskan kepada perlakuan frod dan/atau curang Siti Rahmah dan kedua-dua Defendan menjadi terseret sama rentetan daripada perlakuan tersebut apabila hartanah tersebut dipindahmilik kepada kedua-dua Defendan menerusi Moo Sin Ung. Tetapi apabila perlakuan frod dan /atau curang Siti Rahmah telah tidak lagi boleh berdiri atau menjadi tidak relevan, maka di dalam kedudukan ini adalah menjadi dapatan mahkamah ini bahawa kedua-dua Defendan tidak boleh di katakan lagi berkait atau terseret dengan mana-mana perlakuan frod dan/atau curang. [34] Tambahan kepada itu lagi, apa yang jelas dan terang di sini adalah apabila Siti Rahmah tidak dijadikan pihak dan fakta penyamaran Siti Rahmah telah diputuskan oleh mahkamah di dalam Guaman 1 apabila permohonan Siti Rahmah untuk membatalkan tindakan terhadapnya dibenarkan dan tiada rayuan telah difailkan terhadap keputusan itu, maka kesimpulan daripada keputusan mahkamah dalam Guaman 1 adalah perlakuan frod dan/atau curang Siti Rahmah yang menyamar sebagai si mati tidak wujud. Dengan demikian asas perlakuan dan/atau curang substantif atau pelaku frod pemula menjadi tidak wujud serta tidak berbangkit. [35] Di samping itu, terdapat perbezaan di antara pembatalan tindakan kedua-dua Plaintif terhadap kedua-dua Defendan dan pembatalan tindakan kedua-dua Plaintif terhadap Siti Rahmah. Tuntutan kedua-dua Plaintif terhadap kedua-dua Defendan telah dibatalkan oleh mahkamah atas kegagalan kedua-dua Plaintif memplidkan frod ke atas kedua-dua Defendan dan ianya dengan kebebasan memfailkan semula, maka perintah tersebut tidak menghalang pemfailan semula tindakan terhadap kedua-dua Defendan. Tetapi di dalam kes Siti Rahmah, butiran-butiran frod dan/atau curang Siti Rahmah telah diperincikan oleh kedua-dua Plaintif di dalam Penyataan Tuntutan mereka di dalam Guaman 1 dan di dalam permohonan Siti Rahmah membatalkan tindakan kedua-dua Plaintif terhadapnya, Siti Rahmah telah mengemukakan alasan-alasan utama iaitu beliau tidak pernah memiliki Hartanah tersebut, tidak menyamar sebagai Siti binti Hj Mohamed Yusof dan tidak pernah memindahmilik Hartanah tersebut secara frod dan/atau curang kepada Moo Sin Ung. Oleh itu apabila mahkamah memerintahkan bahawa tindakan kedua-dua Plaintif terhadap Siti Rahmah dibatalkan, kesimpulan yang tidak dapat dielakkan adalah isu-isu yang dibangkitkan terhadap Siti Rahmah yang berkisar atau berkait mengenai perlakuan frod dan/atau curang yang kononnya Siti Rahmah telah menyamar sebagai Siti binti Mohd Yusof dan memindahmilik hartanah tersebut kepada Moo Sin Ung telah diputuskan oleh mahkamah bagi mendorong mahkamah membuat keputusan membenarkan permohonan Siti Rahmah. Apabila tindakan terhadap Siti Rahmah ini dibatalkan dan tiada rayuan terhadap keputusan tersebut, maka isu-isu berkaitan dengan penyamaran Siti Rahmah tidak lagi boleh ditimbulkan oleh kedua-dua Plaintif di dalam guaman ini kerana pertamanya, Siti Rahmah tidak dijadikan sebagai pihak di dalam guaman ini dan keduanya, isu-isu adalah satu non issue dan tidak boleh dijadikan isu lagi kerana apabila permohonan pembatalan tindakan oleh Siti Rahmah yang dibenarkan oleh mahkamah di dalam Guaman 1, fakta penyamaran Siti Rahmah tidak berlaku, tidak wujud ataupun tidak timbul. Dengan ketidakwujudan dan ketiadaan pelaku frod pemula, keseluruhan kausa tindakan kedua-dua Plaintif terhadap kedua-dua Defendan di dalam guaman ini dengan ini tidak dapat dipertahankan. Justeru kedua-dua Plaintif mestilah dihalang daripada membangkitkan fakta penyamaran Siti Rahmah yang tidak wujud dan tidak berkait lagi dengan pembelian hartanah tersebut oleh kedua-dua Defendan. Atas alasan-alasan ini, adalah menjadi dapatan mahkamah ini bahawa apabila pemula frod dan/atau curang atau perlakuan frod dan/atau curang asas dan substantif tidak wujud semestinya intipati-intipati untuk membentuk frod dan/atau curang terhadap kedua-dua Defendan tidak mungkin dapat dibuktikan oleh kedua-dua Plaintif kerana samada terdapat atau tidak perlakuan frod dan/atau curang di pihak kedua-dua Defendan ianya bergantung rapat ke atas pemula frod dan/atau curang. Dalam hal ini, suka saya merujuk kepada petikan di dalam Clerk & Lindsell on Torts, 17th edition @ 2-24, 2-26 yang diperturunkan berikut: “This concept of novus actus interveniens acts in this manner: If a particular consequence of the defendant’s wrongdoing is attributable to some independent act or event which supersedes the effect of the initial tortuous conduct, then the defendant’s responsibilities may not extend to the consequences of the supervening event. In short, if there is a break in the chain of causation then the original wrong doer is not liable for starting the wrong.” Walaupun petikan merujuk kepada tort kecuaian, prinsip atau konsep novus actus interveniens boleh dijadikan panduan. [36] Dengan ini, apabila ianya jelas dan terang bahawa kedua-dua Plaintif tidak mempunyai apa-apa kausa tindakan yang munasabah terhadap kedua-dua Defendan, mahkamah ini hendaklah menggunakan kuasa budibicaranya untuk membatalkan tindakan kedua-dua Plaintif terhadap kedua-dua Defendan. [37] Berdasarkan dapatan-dapatan di atas dan di mana proses pindahmilik hartanah tersebut kepada kedua-dua Defendan adalah sempurna, betul dan sah di sisi undang-undang serta atas kedudukan kedua-dua Defendan sebagai tuanpunya berdaftar hartanah tersebut, hakmilik kedua-dua Defendan ke atas hartanah tersebut adalah hakmilik yang tidak boleh sangkal (indefeasible). Dalam hal ini juga, doktrin nemo dat qui non habet yang menjadi sandaran kedua-dua Plaintif adalah tidak terpakai dan tidak relevan. [38] Mahkamah ini bersependapat dengan peguam kedua-dua Defendan bahawa kedua-dua Plaintif di dalam cubaan mendapatkan remedi ekuiti dengan pemfailan guaman ini, telah di dalam penyata tuntutan mereka tidak mendedahkan fakta-fakta yang sebenar yang berkisar di dalam Guaman 1 dan mengecualikan Siti Rahmah binti Mohd Yusof daripada dijadikan sebagai seorang Defendan dalam guaman ini. Mahkamah ini berpendapat bahawa tindakan sebegini sememangnya mencerminkan niat jahat mala fide kedua-dua Plaintif dan mereka telah datang ke mahkamah ini dengan tangan yang tidak bersih( unclean hands). [39] Berkenaan batasan masa pula, di hadapan mahkamah ini tiada sebarang dokumen yang telah dieksibitkan oleh kedua-dua Plaintif untuk menyokong pengataan mereka yang mereka telah menemui perlakuan frod atau pemindahmilikan berunsur frod pada 24.8.2011 semasa Plaintif Kedua membayar cukai taksiran hartanah tersebut di MPS dan dengan ketiadaan lain-lain dokumen yang menyatakan selainnya, maka sekiranya benar Plaintif Kedua adalah pentadbir pusaka si mati, benarlah seperti dihujahkan peguam kedua-dua Defendan tindakan kedua-dua Plaintif ini telah difailkan di luar had masa yang dibenarkan oleh undang-undang kerana si mati telah meninggal dunia sejak 2.3.1972 lagi. Kedua-dua Plaintif khususnya Plaintif Pertama telah gagal mentadbirkan pusaka si mati untuk tempoh yang begitu lama. Jika dikira dari tarikh kematian si mati sehingga pemfailan tindakan ini pada tahun 2014, tempoh masanya telah melebihi 42 tahun. Dengan tempoh masa yang begitu lama ini, tidak syak lagi tindakan kedua-dua Plaintif adalah dihalang oleh batasan masa undang-undang. [40] Berdasarkan alasan-alasan di atas, adalah jelas dan terang tindakan kedua-dua Plaintif adalah mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious) dan adalah suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court). Justeru itu, tindakan kedua-dua Plaintif terhadap kedua-dua Defendan adalah satu tindakan yang sesuai untuk dibatalkan oleh mahkamah ini menurut A.18 K. 19 (a), (b) dan (d) KKM 2012. Mahkamah ini membenarkan Kandungan 6 dan setelah mendengar hujahan ringkas mengenai kos, kedua-dua Plaintif diperintahkan membayar kos sebanyak RM8000.00 kepada kedua-dua Defendan. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 06 Januari 2015 Peguam Plaintif - Tetuan Richard Tee & Chin Encik Richard Tee Cik Caryn Shua Yee Hann Peguam Defendan - Tetuan Hazwan & Co Encik Hazwan Bin Mohd Nor 36

Tika 2.6.0

21NCVC-17-05/2014

PLAINTIF 1) HASSAN BIN MD YUNUS 2) MOHD RAZALI BIN MOHD YUNUS DEFENDAN 1) MOO SIN UNG 2) MOK WAH HING 3) LIM LAY SOO 4) RAZILA BINTI RASHID 5) PENTADBIR TANAH GOMBAK

06/01/2015

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5747beb1-1a93-4b5a-8e1f-f5ba20238625&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. 21NCVC-17-05/2014 ANTARA 1) HASSAN BIN MD YUNUS 2) MOHD RAZALI BIN MOHD YUNUS ... PLAINTIF-PLAINTIF DAN 1) MOO SIN UNG 2) MOK WAH HING 3) LIM LAY SOO 4) RAZILA BINTI RASHID 5) PENTADBIR TANAH GOMBAK … DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (Kandungan 6) [1] Kandungan 6 ini adalah permohonan pihak Defendan Kedua dan Defendan Ketiga untuk membatalkan Writ Saman dan Penyataan Tuntutan Plaintif-Plaintif terhadap kedua-dua mereka menurut Aturan 18 Kaedah 19 (1)(a),(b) dan/ atau (d) Kaedah-Kaedah Mahkamah 2012 (KKM 2012) atas alasan-alasan berikut : i. ia tidak mendedahkan apa-apa kausa tindakan yang munasabah (“no reasonable cause of action”); ii. ia adalah mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious”); iii. ia adalah suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court”) [2] Fakta kes menurut pliding yang difailkan adalah seperti berikut: 2.1 Hassan bin Md. Yunus (Plaintif Pertama) dan Mohd Razali bin Mohd Yunus (Plaintif Kedua) adalah dua orang individu yang masing-masing beralamat di No. 156, Lorong Keramat 7, Kampung Datuk Keramat, Wilayah Persekutuan dan di Lot 9780 Jalan 2/1 Kg. Melayu Kepong, 52100 Wilayah Persekutuan. 2.2 Plaintif Pertama mendakwa beliau adalah merupakan pentadbir pusaka yang sah bagi harta pusaka Siti binti Mohamed Yusof (si mati) yang telah meninggal dunia pada 2.3.1972. 2.3 Plaintif Kedua pula mendakwa bahawa beliau adalah waris sah si mati dan membantu Plaintif Pertama dalam menguruskan hartanah tersebut memandangkan keadaan kesihatan dan umur Plaintif Pertama. 2.4 Plaintif Pertama dan Plaintif Kedua (kedua-dua Plaintif) mendakwa bahawa si mati adalah pemilik sah dan berdaftar sebuah hartanah yang dikenali sebagai Lot 3203, No. GM. 4443, Mukim Rawang, Daerah Gombak, Negeri Selangor (hartanah tersebut). 2.5 Moo Sin Ung (Defendan Pertama), Mok Wah Hing (Defendan Kedua) dan Lim Lay Soo (Defendan Ketiga) adalah individu-individu yang beralamat masing-masing di No. 3-4-12 Jalan Cecawi 6/30, Seksyen 6, Kota Damansara, 47810 Petaling Jaya, Selangor Darul Ehsan, No. 2 Jalan Ramin 1, Country Heights Damansara, 60000 Kuala Lumpur dan No. 2 Jalan Ramin 1, Country Heights Damansara, 60000 Kuala Lumpur. 2.6 Razila binti Rashid (Defendan Keempat) ialah seorang Peguambela dan Peguamcara yang beramal di Tetuan Razila Rashid & Partners dan mempunyai alamat penyampaian di No. 2-43, Jalan Prima SG2, Taman Prima Sri Gombak, 68100 Batu Caves, Selangor Darul Ehsan. 2.7 Pentadbir Tanah Gombak (Defendan Kelima) adalah badan berkuasa awam yang berkuasa ke atas pendaftaran pindahmilik hartanah bagi daerah Gombak, Selangor dan mempunyai alamat penyampaian di Pejabat Daerah dan Tanah Gombak, Bangunan Sultan Sulaiman KM 16 Jalan Rawang, 68100 Batu Caves, Selangor. 2.8 Kedua-dua Plaintif telah memfailkan guaman ini terhadap kelima-lima Defendan dan di dalam Penyataan Tuntutan mereka yang difailkan pada 12 Mei 2014 mereka telah memohon antara lain relif-relif berikut: (a) perintah deklarasi bahawa pindahmilik pertama hartanah tersebut kepada Defendan Pertama tidak sah, batal dan tiada kuatkuasa. (b) perintah bahawa pendaftaran Defendan Pertama sebagai pemilik hartanah tersebut diketepikan dan/atau dibatalkan serta-merta. (c) perintah deklarasi bahawa pindahmilik kedua hartanah tersebut kepada Defendan Kedua dan Defendan Ketiga tidak sah, batal dan tiada kuatkuasa. (d) perintah bahawa pendaftaran Defendan Kedua dan Ketiga sebagai pemilik hartanah tersebut diketepikan dan/atau dibatalkan serta-merta. (e) perintah deklarasi bahawa si mati Siti binti Hj Mohamed Yusof adalah pada setiap masa merupakan pemilik berdaftar dan benefisial hartanah tersebut. (f) perintah bahawa hakmilik hartanah tersebut didaftarkan di atas nama si mati iaitu Siti binti Hj Mohamed Yusof dan Plaintif Pertama didaftarkan sebagai pentadbir hartanah tersebut. (g) gantirugi am, gantirugi teruk dan gantirugi teladan untuk ditaksirkan terhadap setiap Defendan-Defendan. 2.9 Di dalam Penyataan Tuntutan mereka, kedua-dua Plaintif telah memplidkan pengataan-pengataan berikut: (i) hartanah tersebut adalah didaftarkan atas nama si mati dan si mati memiliki hartanah tersebut dengan sepenuhnya. (ii) Plaintif Kedua, sebagai waris si mati yang bertanggungjawab membayar cukai tanah atau apa-apa cukai yang kena bayar bagi hartanah tersebut telah pergi ke Majlis Perbandaran Selayang (MPS) pada 24.8.2011 untuk membayar cukai taksiran hartanah tersebut tetapi apabila di MPS, beliau telah mendapati bahawa nama pemilik hartanah yang dicatatkan pada notis taksiran bagi hartanah tersebut adalah di atas nama Defendan Pertama. (iii) kedua-dua Plaintif menegaskan bahawa tidak ada mana-mana waris si mati telah memasuki apa-apa transaksi dengan Defendan Pertama berkaitan dengan hartanah tersebut. Atas penemuan fakta tersebut Plaintif Kedua telah membuat satu laporan polis pada 25.8.2011. (iii) Plaintif Kedua kemudiannya telah membuat carian rasmi ke atas hartanah tersebut dan telah mendapati bahawa hartanah tersebut telah dipindahmilik pada 17.12.2010 oleh seorang yang dikenali sebagai Siti binti Hj Mohamed Yusof (No. K/P: 400405-04-5032/4035607) yang beralamat di No. 66, Jalan Wangsa 11, Wangsa Ukay Ulu Klang, 68000 Ampang, Selangor kepada Defendan Pertama dengan balasan sebanyak RM800,000.00 (pindahmilik pertama). Plaintif Kedua mendapat tahu bahawa transaksi dan suratcara pindahmilik pertama tersebut telah dikendalikan oleh Defendan Keempat. (iv) bagi menjaga hak dan kepentingan Plaintif Kedua dan waris-waris si mati ke atas hartanah tersebut, Plaintif Kedua telah memasukkan kaveat persendirian No. 3546/2011 (kaveat tersebut) pada 25.8.2011. (v) semasa mendaftarkan kaveat tersebut, Plaintif Kedua seterusnya mendapati bahawa hartanah tersebut telah dipindahmilik pula oleh Defendan Pertama kepada Defendan Kedua dan Ketiga pada 06.05.2011 dengan balasan RM5,488,560.00 (pindahmilik kedua). Transaksi dan suratcara pindahmilik kedua ini juga dikendalikan oleh Defendan Keempat. (vi) carian Plaintif Kedua seterusnya mendapati bahawa nama dan no. kad pengenalan serta alamat yang dicatatkan pada dokumen pindahmilik (Borang 14A) pindahmilik pertama adalah atas nama Siti binti Hj Mohamed Yusof yang mempunyai nombor kad pengenalan sebagai 400405-04-5032/4035607 (No. K/P tersebut) (vii) Plaintif Kedua mendakwa si mati tidak mempunyai No. K/P sedemikian dan transaksi tersebut telah dilaksanakan oleh seorang yang bernama Siti Rahmah binti Mohd Yusof dan beralamat di No. 66, Jalan Wangsa 11, Wangsa Ukay Ulu Klang, 68000 Ampang, Selangor dengan no. K/P: 400405-04-5032/4035607. (viii) kedua-dua Plaintif telah seterusnya memplidkan bahawa pada geran hakmilik asal hartanah tersebut, hanya nama si mati yang dicatatkan, tanpa no. kad pengenalan dan si mati juga tidak pernah tinggal di alamat No. 66, Jalan Wangsa 11, Wangsa Ukay Ulu Klang, 68000 Ampang, Selangor. Si mati adalah beralamat di No. 24, Jalan Hamzah, Kampong Baru, Kuala Lumpur dan/atau Lot 9780, Jalan 2/1, Kg. Melayu Kepong, 52100 Kuala Lumpur. [3] Berdasarkan pengataan-pengataan yang sedemikian, kedua-dua Plaintif telah mendakwa bahawa pindahmilik pertama dan pindahmilik kedua adalah tidak sah, batal dan tiada kuatkuasa kerana dilakukan secara frod dan/atau instrumen yang tidak mencukupi/batal. Atas dakwaan tersebut, kedua-dua Plaintif telah menyenaraikan butir-butir perlakuan frod Defendan Pertama, Kedua dan Ketiga dalam perenggan-perenggan 15 dan 16 Penyataan Tuntutan mereka. Manakala di perenggan 17 pula, kedua-dua Plaintif telah menyenaraikan butir-butir kecuaian Defendan Keempat serta kemungkiran kewajipan berjaga-jaga Defendan Keempat di dalam mengendalikan transaksi pindahmilik Pertama dan Kedua tersebut. [4] Butir-butir kecuaian dan kemungkiran kewajipan berjaga-jaga Defendan Kelima pula telah dibutirkan oleh kedua-dua Plaintif di perenggan 18 Penyata Tuntutan mereka. [5] Tiada kehadiran telah dimasukkan oleh Defendan Pertama, Defendan Keempat dan Defendan Kelima dan menurut rekod Mahkamah, tiada Afidavit Penyampaian telah difailkan oleh Plaintif bagi membuktikan Writ Saman dan Penyata Tuntutan telah diserahkan kepada ketiga-tiga mereka. [6] Defendan Kedua dan Defendan Ketiga telah menentang tindakan dan menafikan sekeras-kerasnya dakwaan kedua-dua Plaintif terhadap mereka. Justeru itu, Defendan Kedua dan Defendan Ketiga telah memfailkan Penyataan Pembelaan mereka dengan merezabkan hak mereka untuk memfailkan permohonan untuk membatalkan Writ Saman dan Penyataan Tuntutan kedua-dua Plaintif. Defendan Kedua dan Defendan Ketiga bukan sahaja menyangkal dakwaan kedua-dua Plaintif tersebut tetapi juga menuntut balas terhadap kedua-dua Plaintif dengan memohon antara lain perintah-perintah berikut: (a) perintah deklarasi bahawa kes tindakan Plaintif-Plaintif terhadap Defendan Kedua dan Defendan Ketiga adalah salah dan tidak sah di sisi undang-undang. (b) perintah deklarasi bahawa Defendan Kedua dan Defendan Ketiga mempunyai hak untuk menuntut balik pampasan yang dialami oleh mereka jika Plaintif-Plaintif berjaya mendakwa curang terhadap Defendan Pertama. (c) perintah bahawa kaveat persendirian dan/atau kaveat pendaftar harus dibatalkan dalam masa lima (5) hari bermula dari tarikh perintah dengan kos ditanggung oleh Responden. (d) perintah deklarasi bahawa Plaintif-Plaintif dan/atau sesiapa adalah dihalang daripada memasukkan kaveat persendirian dan kaveat pendaftar ke atas hartanah tersebut; (e) perintah deklarasi bahawa Plaintif-Plaintif dan/atau sesiapa yang berkaitan dengan Plaintif-Plaintif adalah dihalang untuk mengganggu Defendan Kedua dan Defendan Ketiga daripada menikmati keamanan hartanah tersebut. [7] Kedua-dua Defendan yang menyangkal dakwaan kedua-dua Plaintif menimbulkan antara lain pembelaan-pembelaan berikut: 7.1 kedua-dua Plaintif sebenarnya tidak mempunyai asas tindakan yang munasabah terhadap kedua-dua Defendan kerana terdapat guaman terdahulu yang difailkan oleh kedua-dua Plaintif terhadap Defendan Kedua dan Defendan Ketiga dan empat orang yang lain (Siti Rahmah binti Mohd Yusof, Moo Sin Ung, Razila binti Rashid dan Pentadbir Tanah Gombak) yang telahpun ditolak dengan kos. Di dalam guaman terdahulu, tindakan terhadap Siti Rahmah telah dibatalkan dengan kos atas permohonan Siti Rahmah pada 14.6.2013, manakala tindakan terhadap Defendan Kedua dan Defendan Ketiga telah dibatalkan oleh mahkamah dengan kos RM5000.00 pada 30.8.2013. Justeru itu, isu-isu di dalam guaman ini adalah isu-isu yang sama telah ditimbulkan oleh kedua-dua Paintif di dalam guaman terdahulu dan isu-isu tersebut telah diputuskan oleh mahkamah. 7.2 kedua-dua Plaintif diletakkan beban bukti yang kukuh akan kapasiti dan kedudukan (status) mereka dengan Siti binti Mohd Yusof dan juga beban bukti kukuh akan ketuanpunyaan Siti binti Mohd Yusof ke atas hartanah tersebut. 7.3 kedua-dua Plaintif telah memfailkan tindakan ini dengan “unclean hands”. 7.4 tindakan kedua-dua Plaintif adalah di luar batasan masa undang-undang. Permohonan kedua-dua Defendan di Kandungan 6 [8] Seperti yang dinyatakan awal tadi, Defendan Kedua dan Defendan Ketiga (selepas daripada ini akan dirujuk sebagai “kedua-dua Defendan”) telah memfailkan Penyataan Pembelaan dan Tuntutan Balas mereka dengan merezabkan hak mereka untuk memfailkan permohonan untuk membatalkan Writ Saman dan Penyata Tuntutan kedua-dua Plaintif terhadap mereka. Selaras dengan pengataan tersebut, pada 3.11.2014 kedua-dua Defendan telahpun memfailkan Kandungan 6 ini. [9] Permohonan Kandungan 6 ini disokong oleh afidavit sokongan yang diikrarkan oleh Lim Lay Soo dan Mok Wah Hing pada 31 Oktober 2014. [10] Afidavit sokongan kedua-dua Defendan menegaskan perkara-perkara berikut: (i) sebelum pemfailan guaman ini, kedua-dua Plaintif pada 7.3.2013 melalui Guaman Sivil No. 22NCVC-25-03/2013 di Mahkamah Tinggi Shah Alam (Guaman 1) telahpun memfailkan suatu Writ Saman dan Pernyataan Tuntutan terhadap kedua-dua orang Defendan dan 4 orang lain iaitu Siti Rahmah binti Mohd Yusof dijadikan sebagai Defendan Pertama, Moo Sin Ung sebagai Defendan Kedua, Razila binti Rashid sebagai Defendan Kelima, manakala Pentadbir Tanah, Pejabat Daerah Tanah Gombak sebagai Defendan Keenam. Guaman 1 ini telah dieksibitkan sebagai Eksibit “LM-7”. (ii) Di dalam Guaman 1 tersebut, kedua-dua Plaintif telah memohon relif-relif berikut: (a) Deklarasi bahawa pendaftaran nama SITI BINTI HAJI MOHAMED YUSOF (No. Kad Pengenalan: 400405-04-5032/4035607) yang digunakan oleh Defendan Pertama atas hartanah No. Lot 3203, No. GM 4443, Mukim Rawang adalah batal dan tidak sah; (b) Deklarasi bahawa pindahmilik tanah daripada SITI BINTI HAJI MOHAMED YUSOF (No. Kad Pengenalan: 400405-04-5032/4035607) kepada MOO SIN UNG (No. Kad Pengenalan 620906-01-5047) yang didaftarkan pada 29/12/2010 adalah batal dan tidak sah; (c) Deklarasi bahawa pindahmilik tanah daripada Moo Sin Ung (No. Kad Pengenalan: 700720-08-5282) dan Lim Lay Soo (No. Kad Pengenalan: 620906-01-5047) dan MOK WAH HING (No. Kad Pengenalan: 571025-08-5709) pada 19/07/2011 adalah batal dan tidak sah; (d) Deklarasi bahawa hartanah tersebut dikekalkan atas hakmilik yang asal Siti binti Mohamed Yusof yang mana waris-warisnya termasuk Plaintif kekal sebagai pentadbir hartanah sah bagi hartanah tersebut. (e) Satu perintah mandamus supaya Defendan Keenam mematuhi keputusan yang dibuat oleh Mahkamah Yang Mulia ini; (f) Satu perintah supaya nama SITI BINTI MOHAMED YUSOF (No. Kad Pengenalan: 400405-04-5032/40356070 dikeluarkan dari didaftarkan sebagai tuan punya berdaftar hartanah tersebut dan digantikan dengan nama SITI BINTI HAJI MOHAMED YUSOF, si mati. (iii) Di dalam Penyataan Tuntutan bagi Guaman 1 tersebut, kedua-dua Plaintif telah memplidkan antara lain bahawa: (a) Ibu mereka bernama Siti binti Haji Mohamed Yusof adalah tuanpunya hartanah tersebut dan telah meninggal dunia pada 2.3.1972 dengan Pendaftaran Kematian A509924. (b) Defendan Pertama iaitu Siti Rahmah binti Mohamed Yusof dengan menyamar sebagai Siti binti Haji Mohamed Yusof telah secara frod atau curang memindahmilik hartanah tersebut kepada Moo Sin Ung (Defendan Kedua dalam Guaman 1) dengan balasan RM800,000.00 yang mana pindahmilik itu telah disempurnakan suratcaranya oleh Razila binti Rashid peguamcara yang mengendalikan antara pemindahmilik tersebut pada 31.12.2012. (c) kemudiannya, kedua-dua Plaintif mendapati hartanah tersebut telah dipindahmilik (pindahmilik kedua) oleh Defendan Kedua kepada Defendan Ketiga dan Keempat dengan balasan sebanyak RM5,488,560.00. Suratcara transaksi kedua ini turut dikendalikan oleh Defendan Kelima selaku peguamcara. (d) Defendan Keenam melalui pegawainya yang bernama Khairil Anuar dan disahkan oleh pegawai bernama Siti Zabedah binti Baharum telah meluluskan dan mendaftarkan pindahmilik-pindahmilik hartanah tersebut yang dilaksanakan secara tidak sah. (iii) Di dalam Guaman 1 tersebut walaupun Defendan Kedua dan Defendan Ketiga telah dijadikan sebagai Defendan Ketiga dan Defendan Keempat, selain daripada pengataan bahawa Moo Sin Ung telah memindahmilik hartanah tersebut kepada kedua-dua Defendan dengan balasan RM5,488,560.00, kedua-dua Plaintif tidak memplidkan sebarang perlakuan curang terhadap kedua-dua Defendan. (v) Pada 6.5.2013, Defendan Pertama iaitu Siti Rahmah binti Mohd Yusof telah memfailkan permohonan untuk membatalkan tindakan kedua-dua Plaintif terhadapnya. Pada 14.6.2013, permohonan Siti Rahmah binti Haji Mohd. Yusof telah dibenarkan oleh Mahkamah dengan kos dan kesan daripada perintah tersebut Writ Saman dan Penyata Tuntutan terhadap Siti Rahmah telah dibatalkan. (vi) Writ Saman dan Penyata Tuntutan kedua-dua Plaintif terhadap kedua-dua Defendan di dalam Guaman 1 juga telah dibatalkan dengan kos RM5000.00 oleh Mahkamah pada 30.8.2013 dengan kebebasan memfailkan semula. (vii) Tiada sebarang rayuan telah difailkan oleh kedua-dua Plaintif atas pembatalan tuntutan kedua-dua mereka terhadap Siti Rahmah binti Mohd Yusof. (viii) Kedua-dua Plaintif masih belum dan/atau gagal dan/atau enggan membayar kos RM5,000.00 kepada kedua-dua Defendan sehingga kini. [11] Perlu dinyatakan di dalam guaman di hadapan mahkamah ini, Siti Rahmah binti Mohd. Yusof (Siti Rahmah) yang merupakan Defendan Pertama di dalam Guaman 1 tidak dijadikan sebagai pihak oleh kedua-dua Plaintif di dalam guaman ini. Alasan (i): kedua-dua Plaintif tiada kausa tindakan yang munasabah terhadap kedua-dua Defendan [12] Adalah dihujahkan bagi pihak kedua-dua Defendan bahawa kedua-dua Plaintif tidak mempunyai asas tindakan yang munasabah ke atas kedua-dua Plaintif atas alasan-alasan berikut: (a) kedua-dua Plaintif tidak mempunyai kapasiti undang-undang untuk membawa tindakan terhadap kedua-dua Defendan kerana kedua-dua Plaintif tidak ada kaitan langsung dengan Siti Binti Mohd Yusof dan hartanah tersebut. (b) rantaian kausa tindakan frod dan/atau curang telahpun terputus dari permulaan lagi. (c) hak kedua-dua Defendan ke atas hartanah tersebut adalah hak yang tidak boleh disangkal (indefeasible). (a) kedua-dua Plaintif tidak mempunyai kapasiti undang-undang untuk membawa tindakan terhadap kedua-dua Defendan kerana kedua-dua Plaintif tidak ada kaitan langsung dengan Siti binti Mohd Yusof dan hartanah tersebut. [13] Kedua-dua Defendan telah meletakkan beban pembuktian yang kukuh terhadap kedua-dua Plaintif mengenai kapasiti undang-undang kedua-dua Plaintif untuk membawa tindakan ini. Kedua-dua Defendan menyangkal pengataan bahawa kedua-dua Plaintif mempunyai kaitan dengan Siti binti Mohd Yusof dan hartanah tersebut. Adalah dihujahkan oleh peguam bagi pihak kedua-dua Defendan bahawa tidak ada sebarang bukti telah dikemukakan oleh kedua-dua Plaintif untuk membuktikan bahawa si mati adalah merupakan pemilik asal hartanah tersebut. Menurut peguam lagi, Plaintif Pertama hanya setakat membuat pengataan di dalam Penyataan Tuntutan bahawa beliau adalah pentadbir pusaka si mati tetapi tiada sebarang surat pentadbiran telah dieksibitkan oleh kedua-dua Plaintif di dalam afidavit jawapan mereka untuk membuktikan bahawa Plaintif Pertama adalah pentadbir pusaka si mati. Justeru itu, adalah dihujahkan bagi pihak kedua-dua Defendan, kedua-dua Plaintif tidak mempunyai hak di sisi undang-undang untuk membawa tindakan terhadap kedua-dua Defendan. (b) rantaian kausa tindakan frod dan/atau curang telahpun terputus dari permulaan lagi. [14] Peguam bagi kedua-dua Defendan telah menghujahkan bahawa Siti Rahmah yang telah didakwa oleh kedua-dua Plaintif kononnya menyamar sebagai si mati telah dengan perlakuan frod dan/atau curangnya telah memindahmilik hartanah tersebut kepada Defendan Pertama dengan balasan RM 800,000.00. Maka dengan ini, Siti Rahmah adalah pemula transaksi frod dan/atau curang terhadap hartanah tersebut. Tindakan atau tuntutan kedua-dua Plaintif terhadap Siti Rahmah di dalam Guaman 1 telah dibatalkan oleh mahkamah atas permohonan Siti Rahmah dan tidak ada rayuan difailkan terhadap keputusan tersebut. Siti Rahmah juga tidak dijadikan pihak di dalam guaman ini. [15] Peguam kedua-dua Defendan berhujah lagi bahawa apabila tindakan terhadap Siti Rahmah telah dibatalkan maka Siti Rahmah tidak pernah memiliki hartanah tersebut dan tidak menyamar sebagai si mati dan tidak pernah memindahmilik hartanah tersebut kepada Defendan Pertama (Moo Sin Ung) dengan balasan RM800,000.00. Maka, alegasi terhadap Siti Rahmah sebagai orang yang memulakan transaksi pindahmilik secara frod dan/atau secara curang tiada lagi untuk mengaitkan perlakuan frod dan/atau curang di pihak kedua-dua Defendan. [16] Peguam kedua-dua Defendan selanjutnya menghujahkan bahawa dengan itu rantaian kausa tindakan frod dan/atau curang telah terputus dari permulaan lagi dan maka kedua-dua Plaintif tidak mempunyai apa-apa kausa tindakan yang munasabah atau tidak ada kausa tindakan langsung terhadap kedua dua Defendan. Untuk hujahan ini peguam bergantung kepada keputusan Mahkamah Rayuan di dalam Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394. (b) hak kedua-dua Defendan ke atas hartanah tersebut adalah hak yang tidak boleh disangkal ( indefeasibility of title). [17] Adalah menjadi hujahan peguam bagi kedua-dua Defendan bahawa kedua-dua Defendan merupakan pembeli yang suci hati untuk balasan nilai dan sememangnya telah membeli hartanah tersebut daripada Defendan Pertama. Menurut peguam lagi, kedua-dua Defendan telahpun menjelaskan bayaran penuh balasan hartanah tersebut dan Notis Taksiran Pindahmilik Hartanah tersebut telah pun dijelaskan sepenuhnya kepada Lembaga Hasil Dalam Negeri. Hartanah tersebut telah dipindahmilik kepada kedua-dua Defendan dan mereka berdua adalah merupakan pemilik berdaftar hartanah tersebut pada masa kini. Adalah dihujahkan juga oleh peguam kedua-dua Defendan proses pindahmilik hartanah tersebut adalah sempurna, betul dan sah di sisi undang-undang. [18] Adalah seterusnya dihujahkan bagi pihak kedua-dua Defendan bahawa kedua-dua Defendan adalah merupakan pembeli suci hati untuk balasan bernilai yang seterusnya dan/atau berikutnya yang mempunyai hakmilik yang tidak boleh sangkal (indefeasible). Untuk hujahan ini peguam kedua-dua Defendan bergantung kepada seksyen 340 (1), (2) dan (3) Kanun Tanah Negara 1965 dan kes Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1. [19] Adalah juga dihujahkan bahawa kedua-dua Plaintif tidak harus menuntut terhadap kedua-dua Defendan dengan mengecualikan orang yang memulakan transaksi pertama yang mempunyai faktor vitiating. Faktor vitiating ini menurut peguam kedua-dua Defendan lagi haruslah ditentukan terdahulu dan tidak harus melangkau dan menuntut terhadap kedua-dua Defendan sahaja sedangkan transaksi pindahmilik yang dilaksanakan ke atas hartanah tersebut kepada kedua-dua Defendan telahpun disempurnakan dan mengikut prosedur yang sah. Alasan (ii) dan (ii) ditentukan bersekali. (ii) Tuntutan kedua-dua Plaintif adalah mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious”) (iii) Tuntutan kedua-dua Plaintif adalah suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court”) [20] Adalah juga dihujahkan bagi pihak kedua-dua Defendan bahawa kedua-dua Plaintif did not come to court with clean hands apabila telah sengaja menyembunyikan fakta-fakta yang benar untuk mengelirukan pihak Mahkamah dengan mengecualikan Siti Rahmah binti Mohd. Yusof sebagai salah seorang Defendan dalam guaman ini. Kedua-dua Plaintif menurut peguam mestilah menyampaikan kesnya dengan terang dan adil dan memberi pendedahan sepenuhnya akan bahan-bahan fakta dalam pengetahuannya. Di dalam guaman ini, kedua-dua Defendan tidak mengiktiraf tuntutan Plaintif-Plaintif terhadap mereka kerana tuntutan kedua-dua Plaintif dibuat adalah mala fide dan tidak berasas. Tindakan kedua-dua Plaintif terhadap kedua-dua Defendan ini adalah sesuatu yang mengaibkan, remeh dan/atau menyusahkan, salah di sisi undang-undang serta merupakan suatu penyalahgunaan proses Mahkamah dan Plaintif-Plaintif tidak mempunyai kausa tindakan untuk membawa tindakan kes ini terhadap kedua-dua Defendan. Tuntutan kedua-dua Plaintif terhadap kedua-dua Defendan adalah dihalang oleh batasan masa [21] Mengenai isu batasan masa, peguam kedua-dua Defendan telah menghujahkan bahawa si mati di dalam guaman ini meninggal dunia pada 2.3.1972. Adalah dihujahkan bahawa kedua-dua Plaintif khususnya Plaintif Pertama telah gagal melaksanakan tanggungjawabnya selaku Pentadbir Pusaka si mati sekiranya benar hartanah tersebut adalah kepunyaan ibu kedua-dua Plaintif. Jikapun dianggap kedua-dua Plaintif berhak membawa tindakan terhadap kedua-dua Defendan, tindakan kedua-dua Plaintif ini telah difailkan di luar had masa yang dibenarkan oleh undang-undang kerana si mati telah meninggal dunia sejak 2.3.1972 lagi. [22] Bagi menentang permohonan kedua-dua Defendan di dalam Kandungan 6 ini, kedua-dua Plaintif telah memfailkan afidavit jawapan yang diikrarkan oleh kedua-duanya pada 18.11. 2014. Di dalam afidavit jawapan mereka, kedua-dua Plaintif hanya membuat tegasan berikut: (a) perolehan dan pindahmilik yang dibuat oleh Defendan Pertama (Moo Sin Ung) tidak sah dan batal (Pertama) maka menyebabkan Defendan Pertama tiada hak yang sah untuk memindahmilik hartanah tersebut kepada kedua-dua Defendan. Defendan Pertama tidak mempunyai hak dan/atau kuasa bagi memindahmilik dan/atau menjual hartanah tersebut kepada kedua-dua Defendan kerana beliau bukanlah pemilik sah hartanah tersebut. Dengan yang demikian doktrin nemo dat qui non habet adalah terpakai. (b) kedua-dua Defendan tidak boleh bergantung kepada perlindungan di bawah seksyen 340(3) Kanun Tanah Negara bahawa hakmilik yang diperolehi mereka adalah hakmilik yang tidak boleh disangkal (indefeasible) kerana mereka bukanlah pembeli suci hati atau bona fide dan dengan ketiadaan pemilikan sah Defendan Pertama ke atas hartanah tersebut, kedua-dua Defendan adalah pemilik/pembeli serta-merta ‘immediate’ hartanah tersebut. (c) memandangkan fakta bahawa transaksi pindahmilik kedua yang dilakukan dalam keadaan segera dan/atau dalam tempoh yang singkat, dan juga melibatkan jumlah transaksi yang terlalu tinggi melebihi jumlah nilaian sebenar hartanah tersebut serta dikendalikan oleh peguamcara yang sama iaitu Defendan Keempat, kedua-dua Defendan adalah terlibat dengan frod yang dilakukan dalam pindahmilik pertama dan/atau mengetahui dan/atau menjangkakan secara munasabah akan frod dalam pindahmilik pertama. (d) hartanah tersebut tidak langsung dimajukan oleh kedua-dua Defendan dan cadangan menjualkannya kepada pihak lain menunjukkan mereka mengetahui hartanah tersebut telah diperolehi dan dipindahmilik secara frod dan tidak sah. Pendaftaran Borang 14A yang meragukan dan cacat kerana nama penerima milik ketiga yang tidak dibatal dengan sempurna; (e) mengenai tindakan kedua-dua Plaintif terhadap kedua-dua Defendan yang telah dibatalkan oleh mahkamah di dalam Guaman 1, tindakan telah dibatalkan mahkamah atas alasan tiada butiran frod dan/atau curang diplidkan terhadap kedua-dua Defendan. Pembatalan oleh mahkamah adalah dengan kebebasan memfailkan semula tindakan terhadap kedua-dua Defendan. Di samping merit kes belum dibicarakan dan diputuskan. (f) mengenai kos sebanyak RM5000.00 yang belum dibayar oleh kedua-dua Plaintif, mahkamah tidak membuat sebarang perintah berhubung tempoh masa pembayaran kos dilakukan dan oleh itu pemfailan guaman ini adalah satu kebebasan yang diberikan oleh Mahkamah. [23] Peguam bagi kedua-dua Plaintif telah menghujahkan bahawa berdasarkan tegasan-tegasan yang telah ditimbulkan oleh kedua-dua Plaintif, terdapat atau wujudnya kausa tindakan relevan dan munasabah terhadap kedua-dua Defendan. Menurut hujahan peguam kedua-dua Plaintif lagi, memandangkan si mati mempunyai hakmilik terhadap hartanah tersebut dan adalah merupakan ibu kepada kedua-dua Plaintif telah meninggal dunia pada 2.3.1972. Dengan kematian tersebut, Plaintif Pertama telah memperolehi perintah mahkamah sebagai Pentadbir Pusaka si mati. Plaintif telah membawa tuntutan terhadap kedua-dua Defendan dengan memplidkan isu dan butiran frod, maka tindakan yang dibawa oleh kedua-dua Plaintif melibatkan isu-isu serius yang perlu dibicarakan dan ditentukan di dalam suatu perbicaraan penuh. Adalah dihujahkan selanjutnya oleh peguam kedua-dua Plaintif tindakan Plaintif terhadap kedua-dua Defendan bukanlah satu tindakan yang plain and obvious serta tidak mendedahkan apa-apa kausa tindakan yang munasabah (“no reasonable cause of action”), mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious”) ataupun suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court”). Undang-undang mengenai permohonan di bawah Aturan 18 Kaedah 19 KKM 2012 [24] Undang-undang mengenai kuasa budi bicara mahkamah di dalam pembatalan tindakan di bawah Aturan 18 Kaedah 19 (A.18 k.19) KKM 2012 adalah jitu dan mantap. Terlalu banyak otoriti yang telah membincangkan dan memutuskan prinsip-prinsip pemakaian kuasa budi bicara mahkamah di bawah A.18 k.19 ini. Memadai sekiranya mahkamah ini merujuk kepada beberapa kes sebagai panduan dan rujukan. [25] Di dalam kes Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, prinsip-prinsip undang-undang mengenai kuasa budi bicara mahkamah di bawah A.18 k.19 ini telah diterangkan dengan begitu jelas oleh Mohamed Dzaiddin HMA (YAA pada ketika itu) seperti berikut: “It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it clearly seen that a claim or answer is on the face of it “obviously unsustainable” (see AG of Duchy of Lancaster v L & NWRly & Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r 3 (which is in pari material with our Order 33 r 2 of the RHC)(see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [26] Di dalam kes Mooney & Ors v Peat Marwick Mitchell & Co & Anor [1967] 1 MLJ 87 Raja Azlan Shah J (DYMM pada ketika itu) di muka surat 88 telah menyatakan seperti berikut: “It is firmly established that the power exercisable under r. 4 “is only appropriate in cases which are plain and obvious so that a judge can say at once that a statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief of which he ask for”: See the judgment of Lindley MR in Hubbuck & Sons v Wilkinsons Heywood & Clark Ltd.(1) Where the situation arises, the pleadings and particulars alone shall be considered and all the allegations in it shall be presumed to be true, and it is only on that assumption that any statable case can be made for this application: see Peck v Russell.(2) The court cannot and indeed is not empowered to look behind the pleadings and particulars if it discloses a reasonable cause of action. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at trial is no ground for it to be struck out: see Boaler v Holder.(3) A recent exposition of the law is afforded by the judgment of Danckwerts LJ in Wenlock v Moloney.(4): “Under the rule (ie. O. 25 r. 4) it had to appear on the face of the plaintiff’s pleadings that the action could not succeed or was objectionable for some other reason. Not evidence could be filed… But, as the procedure was of a summary nature the party was not to be deprived of his right to have his case tried by a proper trial unless the matter was clear.’’ After stating that the former rules are now incorporated in the revised Rules of the Supreme Court, O. 18 r. 19, he continues: “But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.” …” (Sila lihat juga: (i) Arah Cipta Sdn Bhd & Ors v Kian Kee Sawmills (M) Sdn Bhd & Ors [1997] 1AMR 941; (ii) Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 3 AMR 2458; (iii) Tan Keat Seng, Kitson v Kerajaan Malaysia [1996] 1 AMR 536; (iv) Raja Zainal Abidin bin Raja Haji Takchik & Ors v British-American Life & General Insurance Bhd [1993] 2 AMR 2073). Keputusan mahkamah [27] Benarkah seperti yang dihujahkan oleh peguam kedua-dua Plaintif bahawa kedua-dua Plaintif mempunyai kausa tindakan yang relevan dan munasabah terhadap kedua-dua Defendan? Benarkah juga bahawa tindakan mereka bukanlah suatu tindakan yang jelas dan ketara tidak boleh dipertahankan dan dikekalkan dan hendaklah dibatalkan kerana ianya suatu yang remeh temeh, mengaibkan dan suatu penyalahgunaan proses mahkamah? Di dalam kes ini, kedua-dua Defendan telah menyangkal keras dakwaan-dakwaan yang telah ditimbulkan oleh kedua-dua Plaintif dan meletakkan pembuktian kukuh ke atas kedua-dua Plaintif bahawa si mati merupakan pemilik pendulu hartanah tersebut, kedua-dua Plaintif adalah waris si mati dan Plaintif Pertama adalah Pentadbir Pusaka si mati. Maka, persoalan timbul di sini apakah kapasiti undang-undang kedua-dua Plaintif dan kepentingan kedua mereka ke atas hartanah tersebut bagi mengwujudkan hak kedua-dua mereka di sisi undang-undang untuk membawa tindakan terhadap kedua-dua Defendan. Kedua-dua Defendan di perenggan 18 afidavit sokongan Kandungan 6 telah menafikan yang hartanah tersebut kepunyaan si mati dan menegaskan bahawa kedudukan Plaintif Pertama sebagai Pentadbir Pusaka si mati tidak dibuktikan oleh kedua-dua Plaintif. Mahkamah ini telah meneliti afidavit jawapan kedua-dua Plaintif menentang Kandungan 6 dan mendapati bahawa kedua-dua Plaintif telah tidak menjawab langsung tegasan kedua-dua Defendan tersebut tetapi hanya mengatakan kedua-dua mereka adalah waris si mati yang merupakan pemilik asal hartanah tersebut dan mempunyai kepentingan kaveat ke atasnya. [28] Malahan di perenggan 9, Penyataan Tuntutan, Plaintif Kedua telah mendakwa bahawa beliau adalah waris si mati yang membantu Plaintif Pertama menguruskan harta pusaka si mati dan juga mendakwa bahawa segala cukai tanah dan apa-apa bayaran berkaitan hartanah telah dibayar oleh beliau di mana cetakan pada dokumen-dokumen bayaran berkaitan hartanah tersebut masih dicatatkan atas nama si mati telah dikeluarkan kepada beliau. Di samping itu Plaintif Kedua juga mendakwa menyimpan serta memegang geran/hakmilik asal hartanah. [29] Apa yang pelik, peguam kedua-dua Plaintif di dalam hujahan bertulisnya telah menghujahkan bahawa Plaintif Pertama telah memperolehi perintah mahkamah sebagai Pentadbir Pusaka (LA) bagi si mati. Hujahan peguam ini tidak merujuk kepada mana-mana dokumenpun. Lebih pelik lagi, pengataan berkenaan LA telah diperolehi melalui perintah mahkamah tidak langsung diplidkan oleh kedua-dua Plaintif di dalam Penyataan Tuntutan mereka dan tiada juga pengataan tersebut di dalam afidavit jawapan kedua-dua Plaintif. Apa yang jelas dan nyata adalah tegasan-tegasan kedua-dua Plaintif tidak disokong dengan sebarang dokumen dan merupakan pengataan semata-mata tanpa sebarang bukti dokumentar. [30] Berdasarkan alasan-alasan ini, adalah dapatan mahkamah ini bahawa di guaman ini, adalah jelas dan terang bahawa kedua-dua Plaintif melalui Pernyataan Tuntutan dan afidavit mereka tidak langsung dapat menunjukkan yang mereka mempunyai kapasiti undang-undang ataupun hak atau kepentingan ke atas hartanah tersebut yang boleh membangkitkan atau mengwujudkan suatu kausa tindakan terhadap kedua-dua Defendan. Pemfailan guaman ini oleh kedua-dua Plaintif sememangnya adalah suatu yang remeh temeh, mengaibkan dan merupakan penyalahan penggunaan proses Mahkamah. [31] Kausa tindakan kedua-dua Plaintif terhadap kedua-dua Defendan adalah berpremis atau bersandarkan kepada perlakuan frod dan/atau curang Siti Rahmah yang kononnya telah menyamar sebagai si mati. Atas perlakuan frod dan/atau curang Siti Rahmah, kedua-dua Plaintif telah memfailkan Guaman 1 dan Siti Rahmah telah dijadikan sebagai pihak Defendan Pertama di dalam guaman tersebut. Namun begitu, Siti Rahmah telah berjaya membatalkan tindakan terhadapnya dan tiada rayuan telah difailkan atas pembatalan tindakan tersebut oleh kedua-dua Plaintif. Yang nyata dan jelas Siti Rahmah telah tidak dijadikan pihak di dalam guaman ini. Di dalam guaman ini, walaupun Siti Rahmah tidak dijadikan pihak oleh kedua-dua Plaintif, butiran-butiran frod dan/atau perlakuan curang Siti Rahmah atas pindahmilik pertama dan butiran-butiran frod Moo Sin Ung bagi pindahmilik kedua telah diplidkan oleh kedua-dua Plaintif. Namun begitu terhadap kedua-dua Defendan apa yang telah diplidkan oleh kedua-dua Plaintif di perenggan 16 (c) dan (d) Penyataan Tuntutan adalah seperti berikut: (c) Perolehan dan pindahmilik yang tidak sah dan batal ke atas Defendan Pertama menyebabkan beliau tiada hak untuk memindahmilik hartanah tersebut kepada Defendan Kedua dan Ketiga. (d) Defendan Pertama tiada hak dan/atau kuasa bagi memindahmilik dan/atau menjual hartanah tersebut kepada Defendan Kedua dan Ketiga kerana beliau bukanlah pemilik sah hartanah tersebut. Doktrin nemo dat qui non habit adalah terpakai. [32] Daripada penyataan tersebut mahkamah berpendapat bahawa tiada sebarang perlakuan frod dan/atau curang didakwa telah dilakukan atau dibutirkan terhadap kedua-dua Defendan. Dalam hal yang demikian, Mahkamah ini bersetuju dengan hujahan peguam kedua-dua Defendan bahawa apabila tindakan terhadap Siti Rahmah yang dikatakan menyamar sebagai si mati dan merupakan pemula frod ke atas hartanah tersebut telah dibatalkan dan Siti Rahmah juga tidak dijadikan pihak, maka rantaian kausa tindakan frod dan/ atau curang telah terputus dari permulaan lagi. [33] Di dalam guaman ini, kausa tindakan substantif kedua-dua Plaintif adalah berteraskan kepada perlakuan frod dan/atau curang Siti Rahmah dan kedua-dua Defendan menjadi terseret sama rentetan daripada perlakuan tersebut apabila hartanah tersebut dipindahmilik kepada kedua-dua Defendan menerusi Moo Sin Ung. Tetapi apabila perlakuan frod dan /atau curang Siti Rahmah telah tidak lagi boleh berdiri atau menjadi tidak relevan, maka di dalam kedudukan ini adalah menjadi dapatan mahkamah ini bahawa kedua-dua Defendan tidak boleh di katakan lagi berkait atau terseret dengan mana-mana perlakuan frod dan/atau curang. [34] Tambahan kepada itu lagi, apa yang jelas dan terang di sini adalah apabila Siti Rahmah tidak dijadikan pihak dan fakta penyamaran Siti Rahmah telah diputuskan oleh mahkamah di dalam Guaman 1 apabila permohonan Siti Rahmah untuk membatalkan tindakan terhadapnya dibenarkan dan tiada rayuan telah difailkan terhadap keputusan itu, maka kesimpulan daripada keputusan mahkamah dalam Guaman 1 adalah perlakuan frod dan/atau curang Siti Rahmah yang menyamar sebagai si mati tidak wujud. Dengan demikian asas perlakuan dan/atau curang substantif atau pelaku frod pemula menjadi tidak wujud serta tidak berbangkit. [35] Di samping itu, terdapat perbezaan di antara pembatalan tindakan kedua-dua Plaintif terhadap kedua-dua Defendan dan pembatalan tindakan kedua-dua Plaintif terhadap Siti Rahmah. Tuntutan kedua-dua Plaintif terhadap kedua-dua Defendan telah dibatalkan oleh mahkamah atas kegagalan kedua-dua Plaintif memplidkan frod ke atas kedua-dua Defendan dan ianya dengan kebebasan memfailkan semula, maka perintah tersebut tidak menghalang pemfailan semula tindakan terhadap kedua-dua Defendan. Tetapi di dalam kes Siti Rahmah, butiran-butiran frod dan/atau curang Siti Rahmah telah diperincikan oleh kedua-dua Plaintif di dalam Penyataan Tuntutan mereka di dalam Guaman 1 dan di dalam permohonan Siti Rahmah membatalkan tindakan kedua-dua Plaintif terhadapnya, Siti Rahmah telah mengemukakan alasan-alasan utama iaitu beliau tidak pernah memiliki Hartanah tersebut, tidak menyamar sebagai Siti binti Hj Mohamed Yusof dan tidak pernah memindahmilik Hartanah tersebut secara frod dan/atau curang kepada Moo Sin Ung. Oleh itu apabila mahkamah memerintahkan bahawa tindakan kedua-dua Plaintif terhadap Siti Rahmah dibatalkan, kesimpulan yang tidak dapat dielakkan adalah isu-isu yang dibangkitkan terhadap Siti Rahmah yang berkisar atau berkait mengenai perlakuan frod dan/atau curang yang kononnya Siti Rahmah telah menyamar sebagai Siti binti Mohd Yusof dan memindahmilik hartanah tersebut kepada Moo Sin Ung telah diputuskan oleh mahkamah bagi mendorong mahkamah membuat keputusan membenarkan permohonan Siti Rahmah. Apabila tindakan terhadap Siti Rahmah ini dibatalkan dan tiada rayuan terhadap keputusan tersebut, maka isu-isu berkaitan dengan penyamaran Siti Rahmah tidak lagi boleh ditimbulkan oleh kedua-dua Plaintif di dalam guaman ini kerana pertamanya, Siti Rahmah tidak dijadikan sebagai pihak di dalam guaman ini dan keduanya, isu-isu adalah satu non issue dan tidak boleh dijadikan isu lagi kerana apabila permohonan pembatalan tindakan oleh Siti Rahmah yang dibenarkan oleh mahkamah di dalam Guaman 1, fakta penyamaran Siti Rahmah tidak berlaku, tidak wujud ataupun tidak timbul. Dengan ketidakwujudan dan ketiadaan pelaku frod pemula, keseluruhan kausa tindakan kedua-dua Plaintif terhadap kedua-dua Defendan di dalam guaman ini dengan ini tidak dapat dipertahankan. Justeru kedua-dua Plaintif mestilah dihalang daripada membangkitkan fakta penyamaran Siti Rahmah yang tidak wujud dan tidak berkait lagi dengan pembelian hartanah tersebut oleh kedua-dua Defendan. Atas alasan-alasan ini, adalah menjadi dapatan mahkamah ini bahawa apabila pemula frod dan/atau curang atau perlakuan frod dan/atau curang asas dan substantif tidak wujud semestinya intipati-intipati untuk membentuk frod dan/atau curang terhadap kedua-dua Defendan tidak mungkin dapat dibuktikan oleh kedua-dua Plaintif kerana samada terdapat atau tidak perlakuan frod dan/atau curang di pihak kedua-dua Defendan ianya bergantung rapat ke atas pemula frod dan/atau curang. Dalam hal ini, suka saya merujuk kepada petikan di dalam Clerk & Lindsell on Torts, 17th edition @ 2-24, 2-26 yang diperturunkan berikut: “This concept of novus actus interveniens acts in this manner: If a particular consequence of the defendant’s wrongdoing is attributable to some independent act or event which supersedes the effect of the initial tortuous conduct, then the defendant’s responsibilities may not extend to the consequences of the supervening event. In short, if there is a break in the chain of causation then the original wrong doer is not liable for starting the wrong.” Walaupun petikan merujuk kepada tort kecuaian, prinsip atau konsep novus actus interveniens boleh dijadikan panduan. [36] Dengan ini, apabila ianya jelas dan terang bahawa kedua-dua Plaintif tidak mempunyai apa-apa kausa tindakan yang munasabah terhadap kedua-dua Defendan, mahkamah ini hendaklah menggunakan kuasa budibicaranya untuk membatalkan tindakan kedua-dua Plaintif terhadap kedua-dua Defendan. [37] Berdasarkan dapatan-dapatan di atas dan di mana proses pindahmilik hartanah tersebut kepada kedua-dua Defendan adalah sempurna, betul dan sah di sisi undang-undang serta atas kedudukan kedua-dua Defendan sebagai tuanpunya berdaftar hartanah tersebut, hakmilik kedua-dua Defendan ke atas hartanah tersebut adalah hakmilik yang tidak boleh sangkal (indefeasible). Dalam hal ini juga, doktrin nemo dat qui non habet yang menjadi sandaran kedua-dua Plaintif adalah tidak terpakai dan tidak relevan. [38] Mahkamah ini bersependapat dengan peguam kedua-dua Defendan bahawa kedua-dua Plaintif di dalam cubaan mendapatkan remedi ekuiti dengan pemfailan guaman ini, telah di dalam penyata tuntutan mereka tidak mendedahkan fakta-fakta yang sebenar yang berkisar di dalam Guaman 1 dan mengecualikan Siti Rahmah binti Mohd Yusof daripada dijadikan sebagai seorang Defendan dalam guaman ini. Mahkamah ini berpendapat bahawa tindakan sebegini sememangnya mencerminkan niat jahat mala fide kedua-dua Plaintif dan mereka telah datang ke mahkamah ini dengan tangan yang tidak bersih( unclean hands). [39] Berkenaan batasan masa pula, di hadapan mahkamah ini tiada sebarang dokumen yang telah dieksibitkan oleh kedua-dua Plaintif untuk menyokong pengataan mereka yang mereka telah menemui perlakuan frod atau pemindahmilikan berunsur frod pada 24.8.2011 semasa Plaintif Kedua membayar cukai taksiran hartanah tersebut di MPS dan dengan ketiadaan lain-lain dokumen yang menyatakan selainnya, maka sekiranya benar Plaintif Kedua adalah pentadbir pusaka si mati, benarlah seperti dihujahkan peguam kedua-dua Defendan tindakan kedua-dua Plaintif ini telah difailkan di luar had masa yang dibenarkan oleh undang-undang kerana si mati telah meninggal dunia sejak 2.3.1972 lagi. Kedua-dua Plaintif khususnya Plaintif Pertama telah gagal mentadbirkan pusaka si mati untuk tempoh yang begitu lama. Jika dikira dari tarikh kematian si mati sehingga pemfailan tindakan ini pada tahun 2014, tempoh masanya telah melebihi 42 tahun. Dengan tempoh masa yang begitu lama ini, tidak syak lagi tindakan kedua-dua Plaintif adalah dihalang oleh batasan masa undang-undang. [40] Berdasarkan alasan-alasan di atas, adalah jelas dan terang tindakan kedua-dua Plaintif adalah mengaibkan, remeh atau menyusahkan (“scandalous, frivolous or vexatious) dan adalah suatu penyalahgunaan proses Mahkamah (“abuse of process of the Court). Justeru itu, tindakan kedua-dua Plaintif terhadap kedua-dua Defendan adalah satu tindakan yang sesuai untuk dibatalkan oleh mahkamah ini menurut A.18 K. 19 (a), (b) dan (d) KKM 2012. Mahkamah ini membenarkan Kandungan 6 dan setelah mendengar hujahan ringkas mengenai kos, kedua-dua Plaintif diperintahkan membayar kos sebanyak RM8000.00 kepada kedua-dua Defendan. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam (LJC) Selangor Darul Ehsan Bertarikh 06 Januari 2015 Peguam Plaintif - Tetuan Richard Tee & Chin Encik Richard Tee Cik Caryn Shua Yee Hann Peguam Defendan - Tetuan Hazwan & Co Encik Hazwan Bin Mohd Nor 36

Tika 2.6.0

22-6-2000

PLAINTIF PARAGON UNION BERHAD DEFENDAN 1. WONG CHEE KONG 2. POH HOCK LENG

31/12/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=edfe43d6-d494-4949-b453-6d91981606ca&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 22-6-2000 BETWEEN PARAGON UNION BERHAD .... PLAINTIFF AND 1. WONG CHEE KONG 2. POH HOCK LENG .... DEFENDANTS GROUNDS OF JUDGMENT [1] The present suit before this Court is factually a simple and uncomplicated case. It is a claim for a breach of contract arising from the failure of materialising a sale and purchase of shares. Though it is a simple case, but the amount of monetary transaction involved is quite substantial which totals up to more than RM 20 million. [2] The Plaintiff’s Statement of Claim was filed in January 2000. However, due to a number of applications filed in the course of the action, the suit was only finally litigated on 31.12.2014, more or less about 15 years from the date Statement of Claim by the Plaintiff. [3] On 31.12.2014, this Court had allowed the Plaintiff’s claim and dismissed the Defendants’ counterclaim. The Plaintiff was also awarded costs of RM60,000.00. [4] The Defendants being dissatisfied with the decision had proceeded to file a notice of appeal against the decision. [5] Since the litigation of this case has taken about 15 years to be disposed, it is only appropriate for this Court to set out first the series of application filed in the course of the action until its final disposal. Briefly, the Plaintiff claims against the Defendants for breaching a contract for the sale and purchase of shares, where the Plaintiff had agreed to purchase and the Defendants had agreed to sell its shares to the Plaintiff. The Plaintiff in the suit is Paragon Union Berhad, a company incorporated in Malaysia under the Companies Act 1950. The Plaintiff is also a public listed company in the Kuala Lumpur Stock Exchange (KLSE) now known as Bursa Malaysia. Whilst the First Defendant and the Second Defendants (“Defendants”) are individuals by the name of Wong Chee Kong and Poh Hock Ling respectively. Both the Defendants are the Directors and Shareholders of one company, Kinma Holdings Sdn Bhd (“Kinma”). [6] The Plaintiff, subsequent to the filing of their Statement of Claim had filed an Order 14 application to enter summary judgment against the Defendants. The summary judgement application was heard by the Senior Assistant Registrar (SAR). The SAR had dismissed the Plaintiff’s application with costs. Against the said decision, the Plaintiff filed a notice of appeal to the Judge in Chambers. Later the appeal was withdrawn by the Defendants. Then, the case was fixed for pre-trial case management before the judge in chambers on 9.6.2004. However, before the pre-trial case management was carried out, the Plaintiff had filed another application, namely Enclosure 24, applying inter alia for an order that Plaintiff be given access to examine records of bank accounts under section 7 Bankers’ Book (Evidence) Act 1949. Both the Plaintiff and the Defendants had later entered into consent order in respect of this Enclosure 24. Thereafter, the case was set down for trial on the 7th and 8th October 2008. However, before the trial commences, there was an exchange of correspondences between the solicitors of both the parties which had led to the trial date being vacated by the Court. Arising from these exchange of correspondences between the parties, the Defendants contended that these correspondences tantamount to the determination of the suit. The Plaintiff contends otherwise in that the intended payment in view of settlement by a third party(ies) payment had fallen through and as such the Defendants are still indebted to the Plaintiff pursuant to the Sale and Purchase Agreements entered between them. As a result, the Plaintiff did not file any Notice of Discontinuance to the case, and intended to continue with the litigation against the Defendants instead. [7] The Defendants in resisting the Plaintiff intention to proceed with the litigation of the present case, had then filed an application under Order 14A of the Rules of the High Court 1980. The High Court Judge had allowed the Defendants’ application resulting in the dismissal of the Plaintiff’s suit. However, the High Court’s decision was reversed by the Court of Appeal. The Court of Appeal instead found that there is an issue to be tried, and that the issue on the settlement, was indeed disputed. Thus, the case it set for full trial for determination in this present case. [8] The obvious effect of the decision of the Court Of Appeal, unsurprisingly was that the Defendants then had taken out a Summons in Chambers applying to amend their Statement of Defence and had applied to include 22 additional paragraphs, all of which are revolving around the correspondences that took place and denying the involvement of a third party or having any knowledge of any third party being the issue in the settlement reached. The Defendants’ application to amend their Statement of Defence was allowed and consequently the Defendants filed their Amended Defence and Amended Counterclaim. The Plaintiff also filed its Amended Reply and Defence to Counterclaim Amended Reply. [9] Now, returning to the present case. The background facts that give rise to the claim by the Plaintiff and Counterclaim by the Defendants are as follows. Through a series of Agreements, the Plaintiff had agreed to purchase and the Defendant had agreed to sell shares of Kinma Holdings to the Plaintiff. The Plaintiff and Defendant finally entered into the final agreement setting the terms of the sale and purchase in the Sale of Shares Agreement dated 23.9.1998 (“Agreement”). (see Bundle B, pages 45 to 119). [10] Section 1.05 of the Agreement does refer to the previous string of contracts which precede the Agreement, namely the Principal Agreement dated 15.10.1997, Letter of Offer dated 15.10.1997, and the two Supplemental Agreements respectively dated 4.3.1998 and 5.5.1998 (collectively, “previous agreements”). The Court from the outset does not intend to delve in details with regards to the terms of these previous agreements as Section 3.01 of the Agreement already stipulated that the vide the Agreement, the previous agreements shall be deemed terminated by mutual consent. Section 3.01 is reproduced here (see Bundle B, page 50): “As of the date of this Agreement, the parties hereby agrees that the Principal Agreement, the Second Agreement and the Supplemental Agreement are deemed terminated by mutual consent.” [11] From the Agreement, the Plaintiff agreed to purchase 70.1% of Kinma for the purchase price of RM38,218,500.00 (see Bundle B, pages 48 to 50). [12] The terms of the Agreement which are cardinal to this dispute are Sections 3.03, 4.01, 4.02 and 9.02. “SECTION 3.03 PAYMENT OF PURCHASE PRICE (1) upon the execution of this Agreement the sum of Ringgit Malaysia Sixteen Million Five Hundred and Forty Thousand (RM16,540,000-00) only paid by the Purchaser under the Principal Agreement and the Supplemental Agreement shall be deemed paid by the Purchaser to the Vendors under this Agreement as agreed refundable part-payment towards account of the Purchase Price; (2) the balance of the Purchase Price amounting to Ringgit Malaysia Twenty One Million Six Hundred and Seventy-Eight Thousand and Five Hundred (RM21,678,500-00) only shall be paid to the Vendors by way of the Purchaser issuing or cause to be issued in favour of the Vendors or their nominee(s) the requisite number of ordinary shares of PARAGON UNION BERHAD (“the PUB Shares…” [13] Section 4.01 lays down the condition precedent of the Agreement. Particularly, Section 4.01(2) stipulates that all the approvals from the relevant authorities to execute the transaction must first be obtained. [14] Section 4.02 generally stipulates that both parties must take all the necessary steps to apply to the relevant authorities for their requisite approvals. The section reads: “Within sixty (60) days from the date hereof, each of the parties hereto shall take the necessary steps to apply to the respective authorities for the requisite approvals. Upon such approvals being obtained, the Purchaser shall promptly take steps to obtain the approval of the shareholders of the Purchaser. Both parties shall use their endeavours to assist each other in the applications aforesaid.” [15] The Plaintiff’s claim is that the Defendants had breached the agreement as the Defendants had failed to furnish sufficient information (after being requested to by the Plaintiff) to be submitted to the Securities Commission for appropriate approval. [16] Entailing the alleged failure by the Defendants, the Plaintiff through its solicitors has furnished a notice of termination to the Defendants dated 1.4.1999 (“Termination Notice”) which reads (see Bundle B, page 344): “This is to inform you that the information sought for in our letter has not been furnished to our client as at 31st March 1999. As clearly stated in our letter 17th March 1999, the sale and purchase agreement is therefore annulled.” [17] Following that letter, the Plaintiff through it solicitors has demanded sums as claimed in the action in the letter dated 8.4.1999. (See Bundle B, page 347). [18] Quite interestingly, the Defendants in turn, have by their own volition agreed with the Plaintiff’s termination through their solicitor’s letter dated 4.5.1999 which reads (see Bundle B, page 350): “We note that the sale and purchase agreement had been annulled by you in a letter dated 1st April 1999, and the same had been accepted by our clients” [19] However, the Defendants’ main defence in respect of the Plaintiff’s claim against them for the breach of the sale and purchase agreement of shares is that, the Defendants had never received any payment from the Plaintiff for the shares which had already been transferred to the Plaintiff. The Defendants staunchly disputes the evidence led by the Plaintiff in proving the payment made by the Plaintiff. Furthermore, the Defendants contend that they had entered the Agreement because of the fraudulent misrepresentation of one Dato’ Lim Hui Boon (“Dato’”) who was then the Plaintiff’s Executive Chairman. [20] In cognizance of the above underlying facts, this Court is of the view that the following are the pertinent issues to be dealt with to determine the present dispute. (a) Whether the Plaintiff and Defendants have validly entered into the Agreement. (b) Whether the Defendants have breached the Agreement. (c) Whether the Defendants have received the payments alleged by the Plaintiff with regards to the transfer of shares under the Agreement. (d) Whether vide the correspondences and letters between the parties, the parties have reached a conclusive, final and undisputed settlement. Issue (a): Whether the Plaintiff and Defendants have validly entered into the Agreement [21] Now, the Defendants fleetingly have contended against the validity of the Agreement dated 23.8.1998 mainly on the ground that they have entered into the Agreement on the reliance of the Dato’s alleged fraudulent misrepresentation particularly on the payments for the purchase of the shares. [22] This Court is however mindful that the Dato’ was not pursued in any action and was not called by the Defendants to give evidence. Neither did the Defendants filed a third party notice to make the Dato’ a party to this action. This Court will now deal with the contention raised by the Defendants regarding the Dato’. It is utterly peculiar and abnormal that notwithstanding such a heavy-handed allegation against the Dato’ leading up to a multi-million Ringgit shares deal, the Defendants have never made any attempts to call the Dato’ as witness and in fact, have never initiated any action against the Dato’ for his alleged fraudulent misrepresentation. The Defendants having relied heavily on the Dato’s alleged fraudulent misrepresentation which caused or induced them into executing the agreements (there are altogether five agreements entered by the Defendants with the Plaintiff) and thereafter signing all of them (executed) not only did not commence or initiate action against the Dato’ for the alleged fraudulent misrepresentation but also did not see it fit to file a simple application namely a third party notice to make the Dato’ a party to this action. If it is true that the execution of all the agreements in particular the Agreement were signed by the Defendants on the premise of fraudulent misrepresentation of this Dato’, then making the Dato’ a third party in this action would be a justified and/or appropriate legal course against the Dato’. Ironically or strangely enough, this was not done by the Defendants. [23] The allegations are bare allegations devoid of any evidence. The Dato’ was not called as a witness, and the veracity of the allegation is indeed questionable as the Defendant had never made any effort to initiate an action against the Dato’ after all these years. Bear in mind, their Defence was filed in the year 2000 and the case has gone back to trial in this Court in the year 2014. After all these years, more than a decade in fact, the Defendants never initiated an action against the Dato’. [24] The Statement of Defence was filed on 17.2.2000 and even after all these years, contending on the Dato’s fraudulent misrepresentation, the Defendants never initiated an action against the Dato’ and never put an inkling of effort to call the Dato’ as a witness in the present dispute. [25] As the Defendants intend to prove the misrepresentation, thus the onus or burden of proof is on the Defendants to lead evidences to prove their assertion and/or allegation. Bearing in mind of the onus, the Defendant had not produced any evidence to that effect. Thus, such allegation by the Defendants shall fail. [26] It is inconceivable that any person, especially Director-shareholders alike the Defendants, even in the farthest stretch of imagination and common sense, would sign an agreement admitting receipt of payment of millions of Ringgit, when they in actual fact, allegedly have not received any payment. [27] Even assuming it was true, the Defendants would be architects to their own misfortune as they cannot go against their own admission in receiving the payment in Section 1.05 of the Agreement. They cannot now go against their own admission on the ground of being misrepresented on the payment by the Dato’. [28] Having contended that they have executed the Agreement under fraudulent misrepresentation of the Dato’ and that the Defendants have not received any payment from the Dato’, the Defendants themselves however, on another breath admitted to the validity of the Agreement in agreeing to terminate the contract. [29] Now, it would be utterly devoid of any common sense that the Defendants would contend that the contract is invalid, when they themselves agreed to the termination of the Agreement vide their letter dated 4.5.1999. When the Defendants agreed to the termination, then it is verily telling that all the Parties have a common understanding that indeed the Agreement was validly executed. Otherwise, there would be nothing for any of the parties to terminate. [30] In this regard, this Court opines that the Defendants have no basis to contend that the whole transaction in respect of the sale and purchase of shares was executed on the Dato’s alleged misrepresentation whereas it is obvious from the conduct of the Defendants, the admission of the Defendants’ themselves in executing the agreement and acknowledging receipt of payment clearly prove that the Agreement was validly entered into by the Parties. It is therefore the judgment of this Court that the Defendants cannot now contend against their own admission and conduct in acknowledging the validity of the Agreement entered between the Parties. Issue (b): Whether the Defendants have breached the Agreement. [31] From the outset, the Court must highlight here that there is no magic in the reference to the word “annulment” used by parties regarding the termination of the Agreement in their correspondences. It is utterly clear that the parties were discussing the termination of the Contract. The Plaintiff in its termination letter had referred to the Defendants’ failure in furnishing the requisite information for approval in terminating the Agreement. It is vividly clear that the Plaintiff’s Termination notice intends to evince the Plaintiff’s termination of the Agreement. There is no reason for this Court to consider otherwise. [32] Now, the Plaintiff contends that it has vide its solicitors written to the Defendants requesting the requisite information and/or documents laid down in the Plaintiff’s Statement of Claim paragraphs 10(a) to (f) at page 20 of Bundle A. [33] There is a string of correspondences which shows this particular dispute on the requisite documents. Now, the Defendants in their submissions have very little to say on the allegation of breach by the Plaintiff. In fact, the only defence the Defendants have led in their Reply Submission is that the Plaintiff ought to have called someone from either Siew Boo Yeong (Plaintiff’s accountants) or Vital Factor Consulting Sdn Bhd (Plaintiff’s Market Research Consultants) to prove allegations made by the Defendant. However, the Court also took notice that the request for the requisite documents and/or information was also made by the Plaintiff vide its solicitors at that time. The Plaintiff’s solicitors have written to the Defendant requesting the requisite documents and/or information on 4.3.1999, and 17.3.1999 to which the Defendants never replied to these requests. [34] The absence of response by the Defendants regarding the requisite information had led the Plaintiff to terminate the Agreement vide its Termination Notice. And it is more interesting to note that even in the Defendants’ letter in agreeing with the termination, (see Bundle B, page 350) the Defendants’ never denied the Plaintiff’s allegation of the Defendants not furnishing the requisite documents and/or information. The Defendants even agreed to the termination as though agreeing that there was a cause to terminate (which is the failure to furnish the requisite documents and/or information). [35] Indeed, the Defendants in their letter in response to the Plaintiff’s Termination Notice never denied their failure to furnish the requisite documents and/or information. In fact, even the Defendants’ ensuing letter dated 25.5.1999 (see Bundle B, page 351) straight away requested for the return of the shares from the Plaintiff. The Defendants never denied the allegation by the Plaintiff and even agreed to the Plaintiff’s termination. [36] The only denial that the Defendants wrote in their letters was that there is money owing from the Defendants to the Plaintiff. [37] The Defendants, in their desperate attempt to deny the Plaintiff’s claim had in their counsel’s submission challenged the validity of the notice of termination. This Court is mindful that the Defendants have fleetingly contended in the Defendants’ submissions that the Plaintiff had not given sufficient notice in their Termination Notice based on Section 9.02 of the Agreement. (See Bundle B, page 347 to 348). [38] Now, indeed Section 9.02 of the Agreement stipulates that a notice of 60 days must be given in the instance the Plaintiff terminates the contract and that the Termination Notice by the Plaintiff had only given 7 days. However, the Court shall not take cognizance of this contention on two grounds: (i) The issue on the Propriety of the Notice was not pleaded by the Defendants in their Defence [39] The Court is minded that the contention on the propriety of Termination Notice is not pleaded in the Defendants’ Amended Defence and Counter-Claim. [40] It is trite law that the parties may not raise and the Court may not consider issues which are not within the confines of the pleadings. [41] It is trite law that parties are bound by their pleading. There is a myriad of authorities on this. (See i. RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. ii. The Chartered Bank v Yong Chan [1974] 1 MLJ 157. iii. Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322. iv. State Government of Perak v Muniandy [1986] 1 MLJ 490. v. Astrovlanis Compania Naviera AS v Linard [1972] 2 QB 611, [1972] 2 All ER 647. vi. Spedding v Filzpatrick 1888 38 Ch D 410 at p 413. vii. Thomson v Birkley (1882) 31 WR 230. viii. Bousted Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 4 CLJ 283.) [42] Thus, the Court will not consider the Defendants’ contention on the propriety of the notice on this basis. (ii) The Defendants have already acknowledged and admitted to the termination of the Agreement. [43] Notwithstanding the stipulations of the Section 9.02 of the Agreement, it is clear from the correspondences of the parties that the 7 days’ Termination Notice by the Plaintiff is a valid notice of termination. [44] The Defendants themselves acknowledged and accepted the Plaintiff’s termination not once, but in fact twice in their letters dated 4.5.1999 and 25.5.1999. (See Bundle B pages 350 and 351). The content of which are reproduced here: a. Defendants’ letter dated 4.5.1999: “We note that the sale and purchase agreement had been annulled by you in a letter dated 1st April 1999, and the same had been accepted by our clients.” b. Defendants’ letter dated 25.5.1999: “The annulment has been accepted by our clients and therefore our clients are entitled to the return of their share certificates and the transfer forms.” [45] Thus, although the Agreement does stipulate that the requisite Notice is 60 days, parties (especially the Defendants) should be seen to have waived the strict compliance and implementation of the term where the parties have conducted themselves in a manner that evinced their understanding, acknowledgment and/or intent that the 60 days’ notice may not be strictly be adhered to. And from the conduct of both parties and the above correspondences, it is this Court’s judgment that it is evident that the parties have agreed to the validity of the termination of the Agreement vide the Plaintiff’s Termination Letter with 7 days’ notice notwithstanding the fact that it was not in-compliance with the Agreement. Thus, the parties (especially the Defendants) cannot now contend against their own understanding, admission and/or acknowledgment in this regard. [46] Hence, notwithstanding the letters from Siew Boo Yeong or Vital Factor Sdn Bhd, it is sufficiently compelling that through the correspondences of the Plaintiff and the Defendants that the Defendants had never denied the allegation of breach and had even agreed, acknowledged and admitted to the Plaintiff’s termination and cause to terminate the Agreement. Issue (c): Whether the Defendants have received the payments alleged by the Plaintiff with regards to the transfer of shares under the Agreement. [47] Now, one of the main evidential issues contended at length in the present dispute is the proof of receipt of payment in consideration of the shares. However, the Court must highlight that the Defendants’ contention on this issue in their submissions are verily light and utterly brief. Rather than proving non-receipt or disproving receipt, the Defendants only submitted rhetorical questions in a desperate attempt to incite doubts on the probability of the proof of receipt in the face of clear and unadulterated documentary evidence which was led by the Plaintiff. [48] The Plaintiff’s case is very clear, succinct and simple. In claiming for the refund of the payment it made to the Defendant, the Plaintiff furnished the following evidences: a. Section 1.05 of the Agreement; b. Section 5 of the 2nd Supplemental Agreement dated 5.5.1998; c. Payment Voucher for the amount of RM12,540,000.00; d. 1st Defendant’s letter dated 14.11.1997 e. Payment Voucher for the amount of RM2,300,000.00 dated 19.11.1997 f. Payment Voucher for the amount of RM1,700,000.00 dated 19.11.1997. [49] Section 1.05 of the Agreement is verily clear that the Parties have agreed and acknowledged that the Plaintiff has made a payment of RM16,540,000.00 which shall be considered as a refundable part-payment to the purchase price of the shares. [50] Additional to this clear admission, acknowledgment of receipt of payment through the Agreement, the Plaintiff have further furnished additional proofs of payment culminating a total of RM16,540,000.00. [51] Section 5 of the 2nd Supplemental Agreement which precedes the Agreement itself, already have the Parties agree, acknowledge and admit the receipt of the sum of RM4,000,000.00 paid by the Plaintiff to the Defendant on 19.11.1997. The Section reads: “On 19th November 1997, the Purchase has advanced a sum of Ringgit Malaysia Four Million (RM4,000,000-00) only to the Vendors (“the Advance”) which was agreed to be repaid to the Purchaser upon request. [52] This Section is clearly coherent with the letter by the 1st Defendant himself dated 14.11.1997 who himself had requested for the advanced payment of RM4,000,000.00 from the Plaintiff. (See Bundle B, page 32): “Further to my meeting with YB Dato’ Lim a few days ago regarding the above matter, I now officially write to request for RM4,000,000.00 as advance and further payment of the above purchase consideration for settlement of my personal urgent commitment. In the event of non completion of the above agreement, I will repay all monies required to be repaid in accordance with the terms and conditions of the said agreement” (emphasis added) [53] And about 5 days after such request from the First Defendant, there were two payment vouchers respectively dated 19.11.1997 which were issued and accordingly signed by the First Defendant for the amounts of RM2,300,000.00 and RM1,700,000.00 amounting to a total of RM4,000,000.00. (See Bundle B, pages 34 to 35). Both vouchers read the description of: “Further payment towards purchase consideration of KINMA HOLDINGS SDN BHD”. [54] For the remainder of RM12,540,000.00 the Plaintiff referred the Court to the Payment Voucher at Bundle B, page 1 which reads the following being the description of the RM12,540,000.00 paid: “Being payment of refundable deposit of 40% of the total purchase consideration of RM57 million for 55% of Kinma equity interest (55% of RM57,000,000 x 40%) -KINMA RUBBER MFG (M) SDN BHD -KINMA AUTO PARTS SDN BHD Cheque no: MBB 049590” [55] Accompanying this Payment Voucher, the Plaintiff also referred to a cheque issued by the Plaintiff to the same amount. (See Bundle B, page 2) [56] This Court finds that all of these turn of events, correspondences, documents and agreements are coherent to the build-up leading to the Agreement. There is ample proof, acknowledgment and even admission by the Defendants on receiving the total amount of RM16,540,000.00. [57] Against all of the above, the only contentions that the Defendants afforded to the Court (besides all of the unanswered baseless rhetorical questions in their Defence and Counter-claim) are that: All of the agreements, and payment vouchers issued by the Defendant were signed by the Defendant(s) under the misrepresentation and assurance of the Dato’? [58] Now, the Defendants were heavily hammering on this contention against the Plaintiff. It was particularised at length in their Amended Defence and Counter-claim in Bundle A(1), at pages 2 to 3. [59] However, again the Court must reiterate that the Court shall not take cognizance of this allegation of misrepresentation. Namely on the grounds that: a. It is a cause of action against the Dato’ which was never (even up to this point) taken up by the Defendants. [60] It is utterly peculiar that albeit the Defendants’ strong sentiments on the fraudulent misrepresentation of the Dato’ that the Defendants never ever took any actions against the Dato’. [61] It is utterly beyond the realm of logic and probability that even before the execution of the Agreement in the year 1998, (where the alleged payments were already documented to have been made and received), the Defendants by their own volition still opted to enter into agreements and issue vouchers which expressly admit that the Plaintiff had made payments to the Defendants although the Defendants claim that they have not been paid and was misrepresented (which the Court disagrees). [62] The legal position is clear that whatever allegations of misrepresentation or fraudulent misrepresentation against the Dato’ is a cause of action against the Dato’ personally and not the Plaintiff as the Plaintiff is an incorporated company separate and distinct from the Dato’. [63] Furthermore, the Court finds it very questionable that amidst the strong sentiment of the Defendants on the misrepresentation of the Dato’ regarding the payment of a massive amount of money (RM16,540,000.00), the Defendants never saw it fit to report the fraudulent misrepresentation to the Police. In fact, during the cross-examination of the First Defendant, the First Defendant himself agreed and admitted that he has indeed done wrong in not pursuing against the Dato’. In fact, both the Defendants had admitted to have not made any Police reports on the Dato’s alleged misrepresentation. b. The Dato’ was not made a party or even called to give evidence of such allegation of misrepresentation by the Defendants. [64] Now, even bearing mind that, the anchor that holds the Defendants’ case is the allegation of misrepresentation of the Dato’ it is peculiar to note that the Defendants have not taken any efforts to call the Dato’ to be examined by the Court and testify in Court. [65] It is the Defendants who intend to prove their allegation of misrepresentation of the Dato’. It is laden upon the Defendants then, to adduce evidence to prove their allegation. The burden of proof lies on the Defendants to prove their assertion. [66] It is vividly clear that the Dato’ would be a crucial witness in the Defendants’ case on the allegation of misrepresentation. The Court agrees with the Plaintiff that it is incumbent on the Defendants to subpoena the Dato’ as a witness to prove its case. [67] The Defendants themselves are well aware of this as they themselves had referred to the case of Subry bin Hamid v Husaini bin Tan Sri Ikhwan & Anor [2006] 6 MLJ 229 where the Court of Appeal has held: “So, where a party to an action provides no reasons as to why material witnesses were not called to give evidence, the Court will normally draw an adverse inference” [68] And the Court finds that the failure of the Defendants to call this material witness (the Dato’) warrants the Court to draw an adverse inference against the Defendants’ case. [69] It is also submitted on behalf of the Defendants that the Plaintiff had failed to fulfil the burden of proof. The Defendant had contended that the whole discourse on the proof of payment may be simply determined if the Plaintiff had adduced the accounts proving the payment being made (information which is only the Plaintiff’s privilege). [70] However, the Court sees it is important to highlight here that such preposition by the Defendants is not supported by any law. The Defendants themselves had not referred to any particular rule of law or precedent in submitting as such. [71] The Plaintiff is at liberty to forward any evidence to prove their assertion of payment. And alluding to the mass of correspondences, documents and agreements above, without a single shade of doubt, the Plaintiff had already proven payment and in fact the Defendants had admitted to the receipt of payments vide their Payment Vouchers and the execution of the 2nd Supplemental Agreement and the Agreement. The Plaintiff has indeed fulfilled their burden of proof. There is no necessity for the Plaintiff to adduce further accounts to prove their assertion on the payment. [72] In this regard, the Court is of the view that the Defendants have indeed received payment from the Plaintiff for the amount of RM16,540,000.00. Issue(d): Whether vide the correspondences and letters between the parties, the parties have reached a conclusive, final and undisputed settlement. [73] The contention of the Defendants on this point is relatively simple. The Defendants contend that notwithstanding the dispute at hand, there is a line of correspondences which indisputably indicate that the Parties have reached a final and conclusive settlement. [74] The Defendants have submitted an array of authorities in attempting to support this contention. Now, it needs to be understood that the Court does not intend to differ from those authorities. It is indeed the law that an agreement may be construed from a line of correspondences. However, the Court does not agree that the line of correspondences relied on by the Defendants would indicate so. [75] Now, the Plaintiff’s contention against this supposed settlement is that there was no final and conclusive settlement. The Plaintiff submitted that the settlement fell through and had failed as there was a failure by a third party in making arrangements for the payment of the refund of RM16,540,000.00. [76] The Court shall address these two issues separately. a. Was there an involvement of a third party for the payment obligation in the alleged settlement? [77] It is the Plaintiff’s contention that there was correspondences in which third party(ies) had evinced an intention to take on the Defendants’ indebtedness and pay the sum owing in the Defendants’ stead. The settlement of the Defendants’ debt by arrangement of third party(ies) has been going on even before the suit is filed and continued until 2008 (the case was fixed for hearing on 7th and 8th October 2008) which later resulted in the hearing dates being vacated. The Plaintiff mainly referred to: - The Letter by the Dato’s solicitors to the Defendants dated 16.9.1999 (see Bundle B, page 355) [78] In this letter, the Dato’ had written to the Defendants that he intends to assume responsibility to pay the amount claimed to be refunded by the Plaintiff. The letter reads: “In view of the intended claim against you by Paragon Union Berhad (“Paragon”) for, inter alia, the refund of RM16,540,000.00 (“the Paragon Debt”), our client intends to assume responsibility for repayment to Paragon of RM 12,540,000-00… Please let us know by 21st July 1999 whether the above proposal is acceptable to you so that we can advise our client to proceed with immediate negotiation with paragon.” - Letter by Poly Summit Sdn Bhd dated 7.10.1999 (see Bundle B, page 360) [79] Another third party who have stepped up and proposed to undertake the Defendants’ debt was a company known as Poly Summit Sdn Bhd (Co. no 491587-M) (“Poly Summit”). Poly Summit had written to the Plaintiff of their intention through their letter which reads: “In relation to the RM16.54 Million owing to you by the Vendors, we like to put forward for your consideration, a proposal by us for the settlement of part only of the said sum: i. we will undertake and assume primary obligation to pay to you the sum of RM 12.54 Million only;” - The Settlement Agreement (“SA”) between Paragon Union Berhad and Projek Perwira Sdn. Bhd. (“PPSB”)( page 383-392, Bundle B) [80] Tan Hong Kien (PW1) who is the Executive Director of the Plaintiff, in his evidence stated that this SA was executed as an attempt to settle the matter or dispute between the Plaintiff and the Defendants. Paragraph 3.3 of the SA sets out the schedule of instalment payments to be made by PPSB to the Plaintiff to settle the Defendants’ debt by way of six post-dated cheques. PW1 in his evidence also stated that only the first cheque amounting 1,254,000.00 was cleared according to the scheduled date of payment i.e 20.8.2008. The second cheque did not materialise, thus resulting the intended settlement to fail. It has to be noted that the SA was a Part B document. Therefore parties have already agreed on its authenticity and existence. The Defendants’ contention on this SA is focused to question the credibility and authenticity of the document. However, as the SA was a part B document, the Defendants cannot now question the authenticity of this SA. Furthermore, the Defendants have never objected to the SA being a part B document during the course of the trial. [81] Now, the Plaintiff contended against the settlement argument on the basis that there was no settlement concluded as the third party(ies) who are obligated to pay them had not made arrangements to effect such payments. The Plaintiff wrote so to the Defendant in their letter dated 3.6.1999. This letter reads (see Bundle B, page 407): “The intended settlement between your client and our client was premised on payments made by a third party to our client, in settlement of the debt due from your clients to our client. Your clients were fully aware of this underlying premise at all material times. However, the arrangements relating to the payments to be made by the third party have since fallen through, as a result of which the debt remains, and will remain, unpaid. In the circumstances, the intended settlement with your clients cannot be effected, and our client has no option but to continue with the litigation against your clients.” [82] In their efforts to deny any involvement of third party(ies) and in denying having any knowledge of any third party(ies) in the settlement arrangement to paid the Plaintiff’s debt, the Defendants’ had even contradicted themselves. [83] It is verily bold but ultimately very reckless for the Defendants to label the Plaintiff’s contention on the involvement of a third party(ies) as a deliberate “ruse” in their submissions. The Defendants contend that the Defendants have no knowledge of any involvement of any third party in the settlement. So far as the Defendants are concerned, the only correspondences which entail the whole tale of the settlement are the correspondences which the Defendants are referring to. However, the Court must highlight here, that the tables are turned against the Defendant, and it was turned by the Defendants themselves. And instead of the Plaintiff staking a ruse, the Court would otherwise is of the view that it is indeed more probable that the Defendants who are making a ruse. - Contradiction between the Defendants’ pleadings and the Defendants’ own Summary of Facts “Ringkasan kes Defendan-Defendan” [84] The Defendants initially seemed robust in their pleadings. The Defendants pleaded to have no knowledge of the involvement of a third party in the settlement. For ease of reference, the relevant portion of the Defendants’ pleading is reproduced here (see Bundle A(1), at page 10): “36. The Defendants deny that there was any involvement of a third party nor do they have knowledge of any third Party being an issue in the settlement reached” [85] Now, it is vivid here that this is the Defendants’ case. However, although initially seemingly robust, the Defendants themselves sought to go against their own case and contending to exact opposite of their pleading and even against the totality of their case. This is abundantly evident in the Defendants’ own Summary of Facts of the Case. The Court verily believes that it is vital to reproduce the portion of it to bring the contradiction into the limelight, both in English and in Bahasa Malaysia: In Bahasa Malaysia: “RINGKASAN KES DEFENDAN-DEFENDAN 10) Melalui surat bertarikh 16.09.1999, peguamcara Plaintif, Tetuan T.S. Teoh & Partners telah memaklumkan Defendan-Defendan bahawa Dato tersebut berhasrat untuk mengambil tanggungjawab untuk membayar kepada Plaintif RM12,540,000-00 yang dikatakan telah dihutang oleh Defendan-Defendan kepada Plaintif, yang mana Defendan-Defendan telah bersetuju. 11) Pada atau sekitar 07.10.1999, Defendan Pertama telah menerima sepucuk surat dari sebuah syarikat bernama Poly Summit Sdn. Bhd. yang mencadangkan bahawa Poly Summit Sdn Bhd. mengakui janji untuk membayar Plaintif jumlah RM12,540,000-00 tersebut. 12) Walaupun Defendan-Defendan telah bersetuju kepada kedua-dua cadangan di atas cadangan-cadangan tersebut tidak pernah dijalankan.” (emphasis added) In English: “DEFENDANTS’ SUMMARY of FACTS 10) By a letter dated 16.09.1999, the Plaintiff’s solicitors, Messrs. T.S. Teoh & Partners informed the Defendants that the said Dato intended to assume responsibility for payment to the Plaintiff of RM12,540,000-00 allegedly owing to the Plaintiff by the Defendants, to which the Defendants agreed. 11) On or about 07.10.1999 the 1st Defendant received a letter from a company styled Poly Summit Sdn Bhd, suggesting that this company would undertake to pay the Plaintiff the said sum of RM12,540,000-00. 12) Though the Defendants agreed to the aforestated 2 proposals, they were never carried through” (emphasis added)” [86] Now, with the above reproduction of the Defendants’ own case, the Court would categorically list down the array of contradictions which the Defendants blatantly put forth to the Court: i. Against the contention that the Defendants have no knowledge of the third party involvement, it was the Defendants’ own case that the First Defendant have been informed and had even received the letter regarding the third party’s settlement proposal. ii. Against the contention that the Defendants have no knowledge of the third party involvement, it was the Defendants’ own case that they had agreed to at least to two out of the three third party proposals. iii. Against the contention that the Defendants have no knowledge of the third party involvement, it was the Defendants’ own case that (at this point unsurprisingly) they are in agreement with the Plaintiff that indeed the third party payment were “never carried through” or in the Plaintiff’s language, “fallen through”). The Documents are coherent with the fact that the Defendants are indeed aware of the third party proposals [87] In scrutinising the letters above, it is very much probable that indeed the Defendants are well aware of these third party settlement proposals. [88] The Letter from the Dato’ clearly was addressed to both of the Defendants. The top left of the letter indicates the following: “1. Wong Chee Kong 2. Poh Hock Leng Both c/o Kinma Holdings Sdn Bhd Dear sirs” [89] There is a stark contrast between the Defendants’ own pleading and their own case. The degree of contradiction is beyond any conceivable notion of logic or justification. [90] Thus, entailing from this barrage of contradiction, firstly the Court indeed does question the veracity of the Defendants’ case. It seems as though the Defendants themselves are unsure of their own stance in the dispute and are conjuring contentions which they themselves do not understand. [91] Secondly, the Defendants should be estopped from contending otherwise than the fact that they themselves knew and had full knowledge and awareness of the involvement of third party(ies) in the settlement. The Court is guided by the case referred to by the Plaintiff where the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 had referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gonre through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) [92] It is utterly and evidently ironic, that the sanctimonious Defendants can lackadaisically scrutinize the Plaintiff’s submission on the third party’s involvement as a “ruse”, when in fact, it is the Defendants’ case which was in total contradiction. This goes to the very core of the Defendants’ case and shakes its very foundation. The contradiction is beyond any justification. The Court takes note of this clear and stark departure or contradiction by the Defendant which evidently indicates that it is the Defendants’ contention instead was a “ruse”. b. Do the correspondences evince an agreement to settle between the parties? [93] The string of correspondences relied upon by the Defendants begin from Bundle B, pages 393 to 406. Mainly though, the Defendants relied upon their own email of 28.8.2008 (Bundle B, page 393), the email from Plaintiff’s solicitors of 11.9.2008 to the Defendants (Bundle B, page 394) and the Defendants’ email of 15.9.2008 to the Plaintiff’s solicitors (Bundle B, page 395). [94] Now, the Defendants’ contention is simply that, in this line of correspondences, there was never a mention of payment or involvement of a third party, when the Plaintiff’s solicitors “confirmed” the terms of settlement. Hence, notwithstanding the payment, the Plaintiff has already agreed to settlement by merely withdrawing their action and returning the share certificates and transfer forms back to the Defendants. [95] However, the Court has the opportunity and indeed has scrutinised the correspondences referred to. [96] Now, the string of correspondence cannot begin just from the email of 28.8.2008. The string was spun even before that correspondence. Even that email referred to a previous discourse leading to resolution: “…informed by the defendants that the parties have resolved their differences and it only remains for their…” [97] There must have been a 1st half of the story that precedes this email. If not, there is no justification on the reason the Defendants stated that there are remaining issues (which is the return of shares) when the parties have already resolved their differences. [98] It is apparent that the ensuing correspondences which only mentioned of the share transfers are only half of the whole story. The correspondences were replied in that fashion only because the Defendants had only raised the issue of the shares in their email. At no point in time was it mentioned that the Plaintiff is willing to forego the payment. [99] When the Defendant’s solicitor wrote the email in reference to a resolution, which is expressly separate to the transfer of shares: (“…that the parties have resolved their differences…”) (1st half of the story) and (“…and it only remains…”) (2nd half of the story) what was resolved here must have referred to the payment, which was not at any point in time foregone or acquiesced by the Plaintiff. [100] In fact, even after the supposed finality of the settlement based on the two terms (which the Court disagrees), it was the Defendants themselves who wrote to the Court the following in their letter dated 30.9.2008: “Sebagai peguamcara kedua-dua Defendan, kami ingin mengesahkan bahawa kedua-dua pihak telah bersetuju menyelesaikan guaman ini di mana hanya beberapa terma-terma masih belum diselesaikan” (emphasis added) (see Bundle B, page 398) [101] In this instance, even the Defendants admit that besides the terms for the share transfers, there are matters still not yet settled. And besides the share transfers, there is nothing left to be considered, except for the payment in consideration for the return of the shares. It is very plain. Nothing else would be of importance as a term besides the return of the shares, and the payment for the return. [102] This Court opines that the line of correspondences which mentioned the arrangement of shares transfer, merely proved the settlement on the transfer of shares and not the settlement of the debt owing to the Plaintiff. Thus, it is this Court’s considered view that the correspondences do not automatically prove the settlement on payment. The Defendant’s letter itself set the tone of the correspondence; That is, to separate the discourse and discussion on the payment (which is referred to in the passage “…resolved their differences…”) and the transfer of shares (which was referred to in the passage “it only remains for the…”) [103] It was the Defendants who first set the tone of the ensuing correspondence to separate the issue of payment and return of the shares. Thereto, there is no reason for the Plaintiff to mention it in their replies. It was the tone of the string of correspondence that payment is separate and not included in the discussion at the time. [104] Thus, it is only fitting, and justifiable that the Plaintiff raised the failure of the third party’s obligation to pay only after the line of correspondences relied onto by the Defendants, as the Defendants were already demanding for the return of the shares. [105] It is evidently clear that the correspondences relied onto by the Defendants were only one part of a whole settlement which ultimately fell through because the other part of the settlement was not put into effect (which is the third party’s failure to effect payment). [106] In cognizance of the above, the Court finds that the correspondences relied upon by the Defendants do not at all evince a final and conclusive settlement agreement reached between the Parties. This finding is especially compelling and probable owing to the preceding finding that the third party involvement is known to both of the parties especially the Defendants themselves. [107] In view of the above finding, the Defendants’ contention on the Plaintiff’s failure to return their shares, need not be necessary delved into by this Court as there was never a concluded final settlement between the parties and especially because the Defendants’ never paid the sum due and owing to the Plaintiff. [108] With regard to the Second Defendant’s case, it is the Court’s view that, from his own testimony in Court, it is evident that he merely echoes the defence set up by the First Defendant and his Defence shall similarly fail on the same grounds as the First Defendant. [109] Having considered the evidence before this Court in its totality, it is this Court judgment that upon the balance of probabilities, the Plaintiff has proven its case against both the Defendants. Therefore, the Court allows the Plaintiff’s claim and orders the Defendants to pay the Plaintiff the sum claimed, due and owing: a. RM 16 540 000.00 together with interest at the rate of 12% from 8.6.1999 until judgment date and 5% until full settlement. b. RM 3 821 850.00 together with the interest of 8% from 9.4.1999 until judgment date and 5% until full settlement. [110] The Defendants’ counter-claim accordingly is dismissed. On the issue of costs [111] Having heard a brief submission from both counsels for the Plaintiff and the Defendants, the First and Second Defendants shall pay the Plaintiff RM60,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 31st December 2014. For the Plaintiff - Tetuan Kamaruddin & Partners Encik Won Walter Pereira Encik Rameshwaran A/L Ramachandran For the Defendants - Tetuan Ong & Manecksha Encik R.J Manecksha 54

Tika 2.6.0

22-6-2000

PLAINTIF PARAGON UNION BERHAD DEFENDAN 1. WONG CHEE KONG 2. POH HOCK LENG

31/12/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=edfe43d6-d494-4949-b453-6d91981606ca&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 22-6-2000 BETWEEN PARAGON UNION BERHAD .... PLAINTIFF AND 1. WONG CHEE KONG 2. POH HOCK LENG .... DEFENDANTS GROUNDS OF JUDGMENT [1] The present suit before this Court is factually a simple and uncomplicated case. It is a claim for a breach of contract arising from the failure of materialising a sale and purchase of shares. Though it is a simple case, but the amount of monetary transaction involved is quite substantial which totals up to more than RM 20 million. [2] The Plaintiff’s Statement of Claim was filed in January 2000. However, due to a number of applications filed in the course of the action, the suit was only finally litigated on 31.12.2014, more or less about 15 years from the date Statement of Claim by the Plaintiff. [3] On 31.12.2014, this Court had allowed the Plaintiff’s claim and dismissed the Defendants’ counterclaim. The Plaintiff was also awarded costs of RM60,000.00. [4] The Defendants being dissatisfied with the decision had proceeded to file a notice of appeal against the decision. [5] Since the litigation of this case has taken about 15 years to be disposed, it is only appropriate for this Court to set out first the series of application filed in the course of the action until its final disposal. Briefly, the Plaintiff claims against the Defendants for breaching a contract for the sale and purchase of shares, where the Plaintiff had agreed to purchase and the Defendants had agreed to sell its shares to the Plaintiff. The Plaintiff in the suit is Paragon Union Berhad, a company incorporated in Malaysia under the Companies Act 1950. The Plaintiff is also a public listed company in the Kuala Lumpur Stock Exchange (KLSE) now known as Bursa Malaysia. Whilst the First Defendant and the Second Defendants (“Defendants”) are individuals by the name of Wong Chee Kong and Poh Hock Ling respectively. Both the Defendants are the Directors and Shareholders of one company, Kinma Holdings Sdn Bhd (“Kinma”). [6] The Plaintiff, subsequent to the filing of their Statement of Claim had filed an Order 14 application to enter summary judgment against the Defendants. The summary judgement application was heard by the Senior Assistant Registrar (SAR). The SAR had dismissed the Plaintiff’s application with costs. Against the said decision, the Plaintiff filed a notice of appeal to the Judge in Chambers. Later the appeal was withdrawn by the Defendants. Then, the case was fixed for pre-trial case management before the judge in chambers on 9.6.2004. However, before the pre-trial case management was carried out, the Plaintiff had filed another application, namely Enclosure 24, applying inter alia for an order that Plaintiff be given access to examine records of bank accounts under section 7 Bankers’ Book (Evidence) Act 1949. Both the Plaintiff and the Defendants had later entered into consent order in respect of this Enclosure 24. Thereafter, the case was set down for trial on the 7th and 8th October 2008. However, before the trial commences, there was an exchange of correspondences between the solicitors of both the parties which had led to the trial date being vacated by the Court. Arising from these exchange of correspondences between the parties, the Defendants contended that these correspondences tantamount to the determination of the suit. The Plaintiff contends otherwise in that the intended payment in view of settlement by a third party(ies) payment had fallen through and as such the Defendants are still indebted to the Plaintiff pursuant to the Sale and Purchase Agreements entered between them. As a result, the Plaintiff did not file any Notice of Discontinuance to the case, and intended to continue with the litigation against the Defendants instead. [7] The Defendants in resisting the Plaintiff intention to proceed with the litigation of the present case, had then filed an application under Order 14A of the Rules of the High Court 1980. The High Court Judge had allowed the Defendants’ application resulting in the dismissal of the Plaintiff’s suit. However, the High Court’s decision was reversed by the Court of Appeal. The Court of Appeal instead found that there is an issue to be tried, and that the issue on the settlement, was indeed disputed. Thus, the case it set for full trial for determination in this present case. [8] The obvious effect of the decision of the Court Of Appeal, unsurprisingly was that the Defendants then had taken out a Summons in Chambers applying to amend their Statement of Defence and had applied to include 22 additional paragraphs, all of which are revolving around the correspondences that took place and denying the involvement of a third party or having any knowledge of any third party being the issue in the settlement reached. The Defendants’ application to amend their Statement of Defence was allowed and consequently the Defendants filed their Amended Defence and Amended Counterclaim. The Plaintiff also filed its Amended Reply and Defence to Counterclaim Amended Reply. [9] Now, returning to the present case. The background facts that give rise to the claim by the Plaintiff and Counterclaim by the Defendants are as follows. Through a series of Agreements, the Plaintiff had agreed to purchase and the Defendant had agreed to sell shares of Kinma Holdings to the Plaintiff. The Plaintiff and Defendant finally entered into the final agreement setting the terms of the sale and purchase in the Sale of Shares Agreement dated 23.9.1998 (“Agreement”). (see Bundle B, pages 45 to 119). [10] Section 1.05 of the Agreement does refer to the previous string of contracts which precede the Agreement, namely the Principal Agreement dated 15.10.1997, Letter of Offer dated 15.10.1997, and the two Supplemental Agreements respectively dated 4.3.1998 and 5.5.1998 (collectively, “previous agreements”). The Court from the outset does not intend to delve in details with regards to the terms of these previous agreements as Section 3.01 of the Agreement already stipulated that the vide the Agreement, the previous agreements shall be deemed terminated by mutual consent. Section 3.01 is reproduced here (see Bundle B, page 50): “As of the date of this Agreement, the parties hereby agrees that the Principal Agreement, the Second Agreement and the Supplemental Agreement are deemed terminated by mutual consent.” [11] From the Agreement, the Plaintiff agreed to purchase 70.1% of Kinma for the purchase price of RM38,218,500.00 (see Bundle B, pages 48 to 50). [12] The terms of the Agreement which are cardinal to this dispute are Sections 3.03, 4.01, 4.02 and 9.02. “SECTION 3.03 PAYMENT OF PURCHASE PRICE (1) upon the execution of this Agreement the sum of Ringgit Malaysia Sixteen Million Five Hundred and Forty Thousand (RM16,540,000-00) only paid by the Purchaser under the Principal Agreement and the Supplemental Agreement shall be deemed paid by the Purchaser to the Vendors under this Agreement as agreed refundable part-payment towards account of the Purchase Price; (2) the balance of the Purchase Price amounting to Ringgit Malaysia Twenty One Million Six Hundred and Seventy-Eight Thousand and Five Hundred (RM21,678,500-00) only shall be paid to the Vendors by way of the Purchaser issuing or cause to be issued in favour of the Vendors or their nominee(s) the requisite number of ordinary shares of PARAGON UNION BERHAD (“the PUB Shares…” [13] Section 4.01 lays down the condition precedent of the Agreement. Particularly, Section 4.01(2) stipulates that all the approvals from the relevant authorities to execute the transaction must first be obtained. [14] Section 4.02 generally stipulates that both parties must take all the necessary steps to apply to the relevant authorities for their requisite approvals. The section reads: “Within sixty (60) days from the date hereof, each of the parties hereto shall take the necessary steps to apply to the respective authorities for the requisite approvals. Upon such approvals being obtained, the Purchaser shall promptly take steps to obtain the approval of the shareholders of the Purchaser. Both parties shall use their endeavours to assist each other in the applications aforesaid.” [15] The Plaintiff’s claim is that the Defendants had breached the agreement as the Defendants had failed to furnish sufficient information (after being requested to by the Plaintiff) to be submitted to the Securities Commission for appropriate approval. [16] Entailing the alleged failure by the Defendants, the Plaintiff through its solicitors has furnished a notice of termination to the Defendants dated 1.4.1999 (“Termination Notice”) which reads (see Bundle B, page 344): “This is to inform you that the information sought for in our letter has not been furnished to our client as at 31st March 1999. As clearly stated in our letter 17th March 1999, the sale and purchase agreement is therefore annulled.” [17] Following that letter, the Plaintiff through it solicitors has demanded sums as claimed in the action in the letter dated 8.4.1999. (See Bundle B, page 347). [18] Quite interestingly, the Defendants in turn, have by their own volition agreed with the Plaintiff’s termination through their solicitor’s letter dated 4.5.1999 which reads (see Bundle B, page 350): “We note that the sale and purchase agreement had been annulled by you in a letter dated 1st April 1999, and the same had been accepted by our clients” [19] However, the Defendants’ main defence in respect of the Plaintiff’s claim against them for the breach of the sale and purchase agreement of shares is that, the Defendants had never received any payment from the Plaintiff for the shares which had already been transferred to the Plaintiff. The Defendants staunchly disputes the evidence led by the Plaintiff in proving the payment made by the Plaintiff. Furthermore, the Defendants contend that they had entered the Agreement because of the fraudulent misrepresentation of one Dato’ Lim Hui Boon (“Dato’”) who was then the Plaintiff’s Executive Chairman. [20] In cognizance of the above underlying facts, this Court is of the view that the following are the pertinent issues to be dealt with to determine the present dispute. (a) Whether the Plaintiff and Defendants have validly entered into the Agreement. (b) Whether the Defendants have breached the Agreement. (c) Whether the Defendants have received the payments alleged by the Plaintiff with regards to the transfer of shares under the Agreement. (d) Whether vide the correspondences and letters between the parties, the parties have reached a conclusive, final and undisputed settlement. Issue (a): Whether the Plaintiff and Defendants have validly entered into the Agreement [21] Now, the Defendants fleetingly have contended against the validity of the Agreement dated 23.8.1998 mainly on the ground that they have entered into the Agreement on the reliance of the Dato’s alleged fraudulent misrepresentation particularly on the payments for the purchase of the shares. [22] This Court is however mindful that the Dato’ was not pursued in any action and was not called by the Defendants to give evidence. Neither did the Defendants filed a third party notice to make the Dato’ a party to this action. This Court will now deal with the contention raised by the Defendants regarding the Dato’. It is utterly peculiar and abnormal that notwithstanding such a heavy-handed allegation against the Dato’ leading up to a multi-million Ringgit shares deal, the Defendants have never made any attempts to call the Dato’ as witness and in fact, have never initiated any action against the Dato’ for his alleged fraudulent misrepresentation. The Defendants having relied heavily on the Dato’s alleged fraudulent misrepresentation which caused or induced them into executing the agreements (there are altogether five agreements entered by the Defendants with the Plaintiff) and thereafter signing all of them (executed) not only did not commence or initiate action against the Dato’ for the alleged fraudulent misrepresentation but also did not see it fit to file a simple application namely a third party notice to make the Dato’ a party to this action. If it is true that the execution of all the agreements in particular the Agreement were signed by the Defendants on the premise of fraudulent misrepresentation of this Dato’, then making the Dato’ a third party in this action would be a justified and/or appropriate legal course against the Dato’. Ironically or strangely enough, this was not done by the Defendants. [23] The allegations are bare allegations devoid of any evidence. The Dato’ was not called as a witness, and the veracity of the allegation is indeed questionable as the Defendant had never made any effort to initiate an action against the Dato’ after all these years. Bear in mind, their Defence was filed in the year 2000 and the case has gone back to trial in this Court in the year 2014. After all these years, more than a decade in fact, the Defendants never initiated an action against the Dato’. [24] The Statement of Defence was filed on 17.2.2000 and even after all these years, contending on the Dato’s fraudulent misrepresentation, the Defendants never initiated an action against the Dato’ and never put an inkling of effort to call the Dato’ as a witness in the present dispute. [25] As the Defendants intend to prove the misrepresentation, thus the onus or burden of proof is on the Defendants to lead evidences to prove their assertion and/or allegation. Bearing in mind of the onus, the Defendant had not produced any evidence to that effect. Thus, such allegation by the Defendants shall fail. [26] It is inconceivable that any person, especially Director-shareholders alike the Defendants, even in the farthest stretch of imagination and common sense, would sign an agreement admitting receipt of payment of millions of Ringgit, when they in actual fact, allegedly have not received any payment. [27] Even assuming it was true, the Defendants would be architects to their own misfortune as they cannot go against their own admission in receiving the payment in Section 1.05 of the Agreement. They cannot now go against their own admission on the ground of being misrepresented on the payment by the Dato’. [28] Having contended that they have executed the Agreement under fraudulent misrepresentation of the Dato’ and that the Defendants have not received any payment from the Dato’, the Defendants themselves however, on another breath admitted to the validity of the Agreement in agreeing to terminate the contract. [29] Now, it would be utterly devoid of any common sense that the Defendants would contend that the contract is invalid, when they themselves agreed to the termination of the Agreement vide their letter dated 4.5.1999. When the Defendants agreed to the termination, then it is verily telling that all the Parties have a common understanding that indeed the Agreement was validly executed. Otherwise, there would be nothing for any of the parties to terminate. [30] In this regard, this Court opines that the Defendants have no basis to contend that the whole transaction in respect of the sale and purchase of shares was executed on the Dato’s alleged misrepresentation whereas it is obvious from the conduct of the Defendants, the admission of the Defendants’ themselves in executing the agreement and acknowledging receipt of payment clearly prove that the Agreement was validly entered into by the Parties. It is therefore the judgment of this Court that the Defendants cannot now contend against their own admission and conduct in acknowledging the validity of the Agreement entered between the Parties. Issue (b): Whether the Defendants have breached the Agreement. [31] From the outset, the Court must highlight here that there is no magic in the reference to the word “annulment” used by parties regarding the termination of the Agreement in their correspondences. It is utterly clear that the parties were discussing the termination of the Contract. The Plaintiff in its termination letter had referred to the Defendants’ failure in furnishing the requisite information for approval in terminating the Agreement. It is vividly clear that the Plaintiff’s Termination notice intends to evince the Plaintiff’s termination of the Agreement. There is no reason for this Court to consider otherwise. [32] Now, the Plaintiff contends that it has vide its solicitors written to the Defendants requesting the requisite information and/or documents laid down in the Plaintiff’s Statement of Claim paragraphs 10(a) to (f) at page 20 of Bundle A. [33] There is a string of correspondences which shows this particular dispute on the requisite documents. Now, the Defendants in their submissions have very little to say on the allegation of breach by the Plaintiff. In fact, the only defence the Defendants have led in their Reply Submission is that the Plaintiff ought to have called someone from either Siew Boo Yeong (Plaintiff’s accountants) or Vital Factor Consulting Sdn Bhd (Plaintiff’s Market Research Consultants) to prove allegations made by the Defendant. However, the Court also took notice that the request for the requisite documents and/or information was also made by the Plaintiff vide its solicitors at that time. The Plaintiff’s solicitors have written to the Defendant requesting the requisite documents and/or information on 4.3.1999, and 17.3.1999 to which the Defendants never replied to these requests. [34] The absence of response by the Defendants regarding the requisite information had led the Plaintiff to terminate the Agreement vide its Termination Notice. And it is more interesting to note that even in the Defendants’ letter in agreeing with the termination, (see Bundle B, page 350) the Defendants’ never denied the Plaintiff’s allegation of the Defendants not furnishing the requisite documents and/or information. The Defendants even agreed to the termination as though agreeing that there was a cause to terminate (which is the failure to furnish the requisite documents and/or information). [35] Indeed, the Defendants in their letter in response to the Plaintiff’s Termination Notice never denied their failure to furnish the requisite documents and/or information. In fact, even the Defendants’ ensuing letter dated 25.5.1999 (see Bundle B, page 351) straight away requested for the return of the shares from the Plaintiff. The Defendants never denied the allegation by the Plaintiff and even agreed to the Plaintiff’s termination. [36] The only denial that the Defendants wrote in their letters was that there is money owing from the Defendants to the Plaintiff. [37] The Defendants, in their desperate attempt to deny the Plaintiff’s claim had in their counsel’s submission challenged the validity of the notice of termination. This Court is mindful that the Defendants have fleetingly contended in the Defendants’ submissions that the Plaintiff had not given sufficient notice in their Termination Notice based on Section 9.02 of the Agreement. (See Bundle B, page 347 to 348). [38] Now, indeed Section 9.02 of the Agreement stipulates that a notice of 60 days must be given in the instance the Plaintiff terminates the contract and that the Termination Notice by the Plaintiff had only given 7 days. However, the Court shall not take cognizance of this contention on two grounds: (i) The issue on the Propriety of the Notice was not pleaded by the Defendants in their Defence [39] The Court is minded that the contention on the propriety of Termination Notice is not pleaded in the Defendants’ Amended Defence and Counter-Claim. [40] It is trite law that the parties may not raise and the Court may not consider issues which are not within the confines of the pleadings. [41] It is trite law that parties are bound by their pleading. There is a myriad of authorities on this. (See i. RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. ii. The Chartered Bank v Yong Chan [1974] 1 MLJ 157. iii. Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322. iv. State Government of Perak v Muniandy [1986] 1 MLJ 490. v. Astrovlanis Compania Naviera AS v Linard [1972] 2 QB 611, [1972] 2 All ER 647. vi. Spedding v Filzpatrick 1888 38 Ch D 410 at p 413. vii. Thomson v Birkley (1882) 31 WR 230. viii. Bousted Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 4 CLJ 283.) [42] Thus, the Court will not consider the Defendants’ contention on the propriety of the notice on this basis. (ii) The Defendants have already acknowledged and admitted to the termination of the Agreement. [43] Notwithstanding the stipulations of the Section 9.02 of the Agreement, it is clear from the correspondences of the parties that the 7 days’ Termination Notice by the Plaintiff is a valid notice of termination. [44] The Defendants themselves acknowledged and accepted the Plaintiff’s termination not once, but in fact twice in their letters dated 4.5.1999 and 25.5.1999. (See Bundle B pages 350 and 351). The content of which are reproduced here: a. Defendants’ letter dated 4.5.1999: “We note that the sale and purchase agreement had been annulled by you in a letter dated 1st April 1999, and the same had been accepted by our clients.” b. Defendants’ letter dated 25.5.1999: “The annulment has been accepted by our clients and therefore our clients are entitled to the return of their share certificates and the transfer forms.” [45] Thus, although the Agreement does stipulate that the requisite Notice is 60 days, parties (especially the Defendants) should be seen to have waived the strict compliance and implementation of the term where the parties have conducted themselves in a manner that evinced their understanding, acknowledgment and/or intent that the 60 days’ notice may not be strictly be adhered to. And from the conduct of both parties and the above correspondences, it is this Court’s judgment that it is evident that the parties have agreed to the validity of the termination of the Agreement vide the Plaintiff’s Termination Letter with 7 days’ notice notwithstanding the fact that it was not in-compliance with the Agreement. Thus, the parties (especially the Defendants) cannot now contend against their own understanding, admission and/or acknowledgment in this regard. [46] Hence, notwithstanding the letters from Siew Boo Yeong or Vital Factor Sdn Bhd, it is sufficiently compelling that through the correspondences of the Plaintiff and the Defendants that the Defendants had never denied the allegation of breach and had even agreed, acknowledged and admitted to the Plaintiff’s termination and cause to terminate the Agreement. Issue (c): Whether the Defendants have received the payments alleged by the Plaintiff with regards to the transfer of shares under the Agreement. [47] Now, one of the main evidential issues contended at length in the present dispute is the proof of receipt of payment in consideration of the shares. However, the Court must highlight that the Defendants’ contention on this issue in their submissions are verily light and utterly brief. Rather than proving non-receipt or disproving receipt, the Defendants only submitted rhetorical questions in a desperate attempt to incite doubts on the probability of the proof of receipt in the face of clear and unadulterated documentary evidence which was led by the Plaintiff. [48] The Plaintiff’s case is very clear, succinct and simple. In claiming for the refund of the payment it made to the Defendant, the Plaintiff furnished the following evidences: a. Section 1.05 of the Agreement; b. Section 5 of the 2nd Supplemental Agreement dated 5.5.1998; c. Payment Voucher for the amount of RM12,540,000.00; d. 1st Defendant’s letter dated 14.11.1997 e. Payment Voucher for the amount of RM2,300,000.00 dated 19.11.1997 f. Payment Voucher for the amount of RM1,700,000.00 dated 19.11.1997. [49] Section 1.05 of the Agreement is verily clear that the Parties have agreed and acknowledged that the Plaintiff has made a payment of RM16,540,000.00 which shall be considered as a refundable part-payment to the purchase price of the shares. [50] Additional to this clear admission, acknowledgment of receipt of payment through the Agreement, the Plaintiff have further furnished additional proofs of payment culminating a total of RM16,540,000.00. [51] Section 5 of the 2nd Supplemental Agreement which precedes the Agreement itself, already have the Parties agree, acknowledge and admit the receipt of the sum of RM4,000,000.00 paid by the Plaintiff to the Defendant on 19.11.1997. The Section reads: “On 19th November 1997, the Purchase has advanced a sum of Ringgit Malaysia Four Million (RM4,000,000-00) only to the Vendors (“the Advance”) which was agreed to be repaid to the Purchaser upon request. [52] This Section is clearly coherent with the letter by the 1st Defendant himself dated 14.11.1997 who himself had requested for the advanced payment of RM4,000,000.00 from the Plaintiff. (See Bundle B, page 32): “Further to my meeting with YB Dato’ Lim a few days ago regarding the above matter, I now officially write to request for RM4,000,000.00 as advance and further payment of the above purchase consideration for settlement of my personal urgent commitment. In the event of non completion of the above agreement, I will repay all monies required to be repaid in accordance with the terms and conditions of the said agreement” (emphasis added) [53] And about 5 days after such request from the First Defendant, there were two payment vouchers respectively dated 19.11.1997 which were issued and accordingly signed by the First Defendant for the amounts of RM2,300,000.00 and RM1,700,000.00 amounting to a total of RM4,000,000.00. (See Bundle B, pages 34 to 35). Both vouchers read the description of: “Further payment towards purchase consideration of KINMA HOLDINGS SDN BHD”. [54] For the remainder of RM12,540,000.00 the Plaintiff referred the Court to the Payment Voucher at Bundle B, page 1 which reads the following being the description of the RM12,540,000.00 paid: “Being payment of refundable deposit of 40% of the total purchase consideration of RM57 million for 55% of Kinma equity interest (55% of RM57,000,000 x 40%) -KINMA RUBBER MFG (M) SDN BHD -KINMA AUTO PARTS SDN BHD Cheque no: MBB 049590” [55] Accompanying this Payment Voucher, the Plaintiff also referred to a cheque issued by the Plaintiff to the same amount. (See Bundle B, page 2) [56] This Court finds that all of these turn of events, correspondences, documents and agreements are coherent to the build-up leading to the Agreement. There is ample proof, acknowledgment and even admission by the Defendants on receiving the total amount of RM16,540,000.00. [57] Against all of the above, the only contentions that the Defendants afforded to the Court (besides all of the unanswered baseless rhetorical questions in their Defence and Counter-claim) are that: All of the agreements, and payment vouchers issued by the Defendant were signed by the Defendant(s) under the misrepresentation and assurance of the Dato’? [58] Now, the Defendants were heavily hammering on this contention against the Plaintiff. It was particularised at length in their Amended Defence and Counter-claim in Bundle A(1), at pages 2 to 3. [59] However, again the Court must reiterate that the Court shall not take cognizance of this allegation of misrepresentation. Namely on the grounds that: a. It is a cause of action against the Dato’ which was never (even up to this point) taken up by the Defendants. [60] It is utterly peculiar that albeit the Defendants’ strong sentiments on the fraudulent misrepresentation of the Dato’ that the Defendants never ever took any actions against the Dato’. [61] It is utterly beyond the realm of logic and probability that even before the execution of the Agreement in the year 1998, (where the alleged payments were already documented to have been made and received), the Defendants by their own volition still opted to enter into agreements and issue vouchers which expressly admit that the Plaintiff had made payments to the Defendants although the Defendants claim that they have not been paid and was misrepresented (which the Court disagrees). [62] The legal position is clear that whatever allegations of misrepresentation or fraudulent misrepresentation against the Dato’ is a cause of action against the Dato’ personally and not the Plaintiff as the Plaintiff is an incorporated company separate and distinct from the Dato’. [63] Furthermore, the Court finds it very questionable that amidst the strong sentiment of the Defendants on the misrepresentation of the Dato’ regarding the payment of a massive amount of money (RM16,540,000.00), the Defendants never saw it fit to report the fraudulent misrepresentation to the Police. In fact, during the cross-examination of the First Defendant, the First Defendant himself agreed and admitted that he has indeed done wrong in not pursuing against the Dato’. In fact, both the Defendants had admitted to have not made any Police reports on the Dato’s alleged misrepresentation. b. The Dato’ was not made a party or even called to give evidence of such allegation of misrepresentation by the Defendants. [64] Now, even bearing mind that, the anchor that holds the Defendants’ case is the allegation of misrepresentation of the Dato’ it is peculiar to note that the Defendants have not taken any efforts to call the Dato’ to be examined by the Court and testify in Court. [65] It is the Defendants who intend to prove their allegation of misrepresentation of the Dato’. It is laden upon the Defendants then, to adduce evidence to prove their allegation. The burden of proof lies on the Defendants to prove their assertion. [66] It is vividly clear that the Dato’ would be a crucial witness in the Defendants’ case on the allegation of misrepresentation. The Court agrees with the Plaintiff that it is incumbent on the Defendants to subpoena the Dato’ as a witness to prove its case. [67] The Defendants themselves are well aware of this as they themselves had referred to the case of Subry bin Hamid v Husaini bin Tan Sri Ikhwan & Anor [2006] 6 MLJ 229 where the Court of Appeal has held: “So, where a party to an action provides no reasons as to why material witnesses were not called to give evidence, the Court will normally draw an adverse inference” [68] And the Court finds that the failure of the Defendants to call this material witness (the Dato’) warrants the Court to draw an adverse inference against the Defendants’ case. [69] It is also submitted on behalf of the Defendants that the Plaintiff had failed to fulfil the burden of proof. The Defendant had contended that the whole discourse on the proof of payment may be simply determined if the Plaintiff had adduced the accounts proving the payment being made (information which is only the Plaintiff’s privilege). [70] However, the Court sees it is important to highlight here that such preposition by the Defendants is not supported by any law. The Defendants themselves had not referred to any particular rule of law or precedent in submitting as such. [71] The Plaintiff is at liberty to forward any evidence to prove their assertion of payment. And alluding to the mass of correspondences, documents and agreements above, without a single shade of doubt, the Plaintiff had already proven payment and in fact the Defendants had admitted to the receipt of payments vide their Payment Vouchers and the execution of the 2nd Supplemental Agreement and the Agreement. The Plaintiff has indeed fulfilled their burden of proof. There is no necessity for the Plaintiff to adduce further accounts to prove their assertion on the payment. [72] In this regard, the Court is of the view that the Defendants have indeed received payment from the Plaintiff for the amount of RM16,540,000.00. Issue(d): Whether vide the correspondences and letters between the parties, the parties have reached a conclusive, final and undisputed settlement. [73] The contention of the Defendants on this point is relatively simple. The Defendants contend that notwithstanding the dispute at hand, there is a line of correspondences which indisputably indicate that the Parties have reached a final and conclusive settlement. [74] The Defendants have submitted an array of authorities in attempting to support this contention. Now, it needs to be understood that the Court does not intend to differ from those authorities. It is indeed the law that an agreement may be construed from a line of correspondences. However, the Court does not agree that the line of correspondences relied on by the Defendants would indicate so. [75] Now, the Plaintiff’s contention against this supposed settlement is that there was no final and conclusive settlement. The Plaintiff submitted that the settlement fell through and had failed as there was a failure by a third party in making arrangements for the payment of the refund of RM16,540,000.00. [76] The Court shall address these two issues separately. a. Was there an involvement of a third party for the payment obligation in the alleged settlement? [77] It is the Plaintiff’s contention that there was correspondences in which third party(ies) had evinced an intention to take on the Defendants’ indebtedness and pay the sum owing in the Defendants’ stead. The settlement of the Defendants’ debt by arrangement of third party(ies) has been going on even before the suit is filed and continued until 2008 (the case was fixed for hearing on 7th and 8th October 2008) which later resulted in the hearing dates being vacated. The Plaintiff mainly referred to: - The Letter by the Dato’s solicitors to the Defendants dated 16.9.1999 (see Bundle B, page 355) [78] In this letter, the Dato’ had written to the Defendants that he intends to assume responsibility to pay the amount claimed to be refunded by the Plaintiff. The letter reads: “In view of the intended claim against you by Paragon Union Berhad (“Paragon”) for, inter alia, the refund of RM16,540,000.00 (“the Paragon Debt”), our client intends to assume responsibility for repayment to Paragon of RM 12,540,000-00… Please let us know by 21st July 1999 whether the above proposal is acceptable to you so that we can advise our client to proceed with immediate negotiation with paragon.” - Letter by Poly Summit Sdn Bhd dated 7.10.1999 (see Bundle B, page 360) [79] Another third party who have stepped up and proposed to undertake the Defendants’ debt was a company known as Poly Summit Sdn Bhd (Co. no 491587-M) (“Poly Summit”). Poly Summit had written to the Plaintiff of their intention through their letter which reads: “In relation to the RM16.54 Million owing to you by the Vendors, we like to put forward for your consideration, a proposal by us for the settlement of part only of the said sum: i. we will undertake and assume primary obligation to pay to you the sum of RM 12.54 Million only;” - The Settlement Agreement (“SA”) between Paragon Union Berhad and Projek Perwira Sdn. Bhd. (“PPSB”)( page 383-392, Bundle B) [80] Tan Hong Kien (PW1) who is the Executive Director of the Plaintiff, in his evidence stated that this SA was executed as an attempt to settle the matter or dispute between the Plaintiff and the Defendants. Paragraph 3.3 of the SA sets out the schedule of instalment payments to be made by PPSB to the Plaintiff to settle the Defendants’ debt by way of six post-dated cheques. PW1 in his evidence also stated that only the first cheque amounting 1,254,000.00 was cleared according to the scheduled date of payment i.e 20.8.2008. The second cheque did not materialise, thus resulting the intended settlement to fail. It has to be noted that the SA was a Part B document. Therefore parties have already agreed on its authenticity and existence. The Defendants’ contention on this SA is focused to question the credibility and authenticity of the document. However, as the SA was a part B document, the Defendants cannot now question the authenticity of this SA. Furthermore, the Defendants have never objected to the SA being a part B document during the course of the trial. [81] Now, the Plaintiff contended against the settlement argument on the basis that there was no settlement concluded as the third party(ies) who are obligated to pay them had not made arrangements to effect such payments. The Plaintiff wrote so to the Defendant in their letter dated 3.6.1999. This letter reads (see Bundle B, page 407): “The intended settlement between your client and our client was premised on payments made by a third party to our client, in settlement of the debt due from your clients to our client. Your clients were fully aware of this underlying premise at all material times. However, the arrangements relating to the payments to be made by the third party have since fallen through, as a result of which the debt remains, and will remain, unpaid. In the circumstances, the intended settlement with your clients cannot be effected, and our client has no option but to continue with the litigation against your clients.” [82] In their efforts to deny any involvement of third party(ies) and in denying having any knowledge of any third party(ies) in the settlement arrangement to paid the Plaintiff’s debt, the Defendants’ had even contradicted themselves. [83] It is verily bold but ultimately very reckless for the Defendants to label the Plaintiff’s contention on the involvement of a third party(ies) as a deliberate “ruse” in their submissions. The Defendants contend that the Defendants have no knowledge of any involvement of any third party in the settlement. So far as the Defendants are concerned, the only correspondences which entail the whole tale of the settlement are the correspondences which the Defendants are referring to. However, the Court must highlight here, that the tables are turned against the Defendant, and it was turned by the Defendants themselves. And instead of the Plaintiff staking a ruse, the Court would otherwise is of the view that it is indeed more probable that the Defendants who are making a ruse. - Contradiction between the Defendants’ pleadings and the Defendants’ own Summary of Facts “Ringkasan kes Defendan-Defendan” [84] The Defendants initially seemed robust in their pleadings. The Defendants pleaded to have no knowledge of the involvement of a third party in the settlement. For ease of reference, the relevant portion of the Defendants’ pleading is reproduced here (see Bundle A(1), at page 10): “36. The Defendants deny that there was any involvement of a third party nor do they have knowledge of any third Party being an issue in the settlement reached” [85] Now, it is vivid here that this is the Defendants’ case. However, although initially seemingly robust, the Defendants themselves sought to go against their own case and contending to exact opposite of their pleading and even against the totality of their case. This is abundantly evident in the Defendants’ own Summary of Facts of the Case. The Court verily believes that it is vital to reproduce the portion of it to bring the contradiction into the limelight, both in English and in Bahasa Malaysia: In Bahasa Malaysia: “RINGKASAN KES DEFENDAN-DEFENDAN 10) Melalui surat bertarikh 16.09.1999, peguamcara Plaintif, Tetuan T.S. Teoh & Partners telah memaklumkan Defendan-Defendan bahawa Dato tersebut berhasrat untuk mengambil tanggungjawab untuk membayar kepada Plaintif RM12,540,000-00 yang dikatakan telah dihutang oleh Defendan-Defendan kepada Plaintif, yang mana Defendan-Defendan telah bersetuju. 11) Pada atau sekitar 07.10.1999, Defendan Pertama telah menerima sepucuk surat dari sebuah syarikat bernama Poly Summit Sdn. Bhd. yang mencadangkan bahawa Poly Summit Sdn Bhd. mengakui janji untuk membayar Plaintif jumlah RM12,540,000-00 tersebut. 12) Walaupun Defendan-Defendan telah bersetuju kepada kedua-dua cadangan di atas cadangan-cadangan tersebut tidak pernah dijalankan.” (emphasis added) In English: “DEFENDANTS’ SUMMARY of FACTS 10) By a letter dated 16.09.1999, the Plaintiff’s solicitors, Messrs. T.S. Teoh & Partners informed the Defendants that the said Dato intended to assume responsibility for payment to the Plaintiff of RM12,540,000-00 allegedly owing to the Plaintiff by the Defendants, to which the Defendants agreed. 11) On or about 07.10.1999 the 1st Defendant received a letter from a company styled Poly Summit Sdn Bhd, suggesting that this company would undertake to pay the Plaintiff the said sum of RM12,540,000-00. 12) Though the Defendants agreed to the aforestated 2 proposals, they were never carried through” (emphasis added)” [86] Now, with the above reproduction of the Defendants’ own case, the Court would categorically list down the array of contradictions which the Defendants blatantly put forth to the Court: i. Against the contention that the Defendants have no knowledge of the third party involvement, it was the Defendants’ own case that the First Defendant have been informed and had even received the letter regarding the third party’s settlement proposal. ii. Against the contention that the Defendants have no knowledge of the third party involvement, it was the Defendants’ own case that they had agreed to at least to two out of the three third party proposals. iii. Against the contention that the Defendants have no knowledge of the third party involvement, it was the Defendants’ own case that (at this point unsurprisingly) they are in agreement with the Plaintiff that indeed the third party payment were “never carried through” or in the Plaintiff’s language, “fallen through”). The Documents are coherent with the fact that the Defendants are indeed aware of the third party proposals [87] In scrutinising the letters above, it is very much probable that indeed the Defendants are well aware of these third party settlement proposals. [88] The Letter from the Dato’ clearly was addressed to both of the Defendants. The top left of the letter indicates the following: “1. Wong Chee Kong 2. Poh Hock Leng Both c/o Kinma Holdings Sdn Bhd Dear sirs” [89] There is a stark contrast between the Defendants’ own pleading and their own case. The degree of contradiction is beyond any conceivable notion of logic or justification. [90] Thus, entailing from this barrage of contradiction, firstly the Court indeed does question the veracity of the Defendants’ case. It seems as though the Defendants themselves are unsure of their own stance in the dispute and are conjuring contentions which they themselves do not understand. [91] Secondly, the Defendants should be estopped from contending otherwise than the fact that they themselves knew and had full knowledge and awareness of the involvement of third party(ies) in the settlement. The Court is guided by the case referred to by the Plaintiff where the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 had referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gonre through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (emphasis added) [92] It is utterly and evidently ironic, that the sanctimonious Defendants can lackadaisically scrutinize the Plaintiff’s submission on the third party’s involvement as a “ruse”, when in fact, it is the Defendants’ case which was in total contradiction. This goes to the very core of the Defendants’ case and shakes its very foundation. The contradiction is beyond any justification. The Court takes note of this clear and stark departure or contradiction by the Defendant which evidently indicates that it is the Defendants’ contention instead was a “ruse”. b. Do the correspondences evince an agreement to settle between the parties? [93] The string of correspondences relied upon by the Defendants begin from Bundle B, pages 393 to 406. Mainly though, the Defendants relied upon their own email of 28.8.2008 (Bundle B, page 393), the email from Plaintiff’s solicitors of 11.9.2008 to the Defendants (Bundle B, page 394) and the Defendants’ email of 15.9.2008 to the Plaintiff’s solicitors (Bundle B, page 395). [94] Now, the Defendants’ contention is simply that, in this line of correspondences, there was never a mention of payment or involvement of a third party, when the Plaintiff’s solicitors “confirmed” the terms of settlement. Hence, notwithstanding the payment, the Plaintiff has already agreed to settlement by merely withdrawing their action and returning the share certificates and transfer forms back to the Defendants. [95] However, the Court has the opportunity and indeed has scrutinised the correspondences referred to. [96] Now, the string of correspondence cannot begin just from the email of 28.8.2008. The string was spun even before that correspondence. Even that email referred to a previous discourse leading to resolution: “…informed by the defendants that the parties have resolved their differences and it only remains for their…” [97] There must have been a 1st half of the story that precedes this email. If not, there is no justification on the reason the Defendants stated that there are remaining issues (which is the return of shares) when the parties have already resolved their differences. [98] It is apparent that the ensuing correspondences which only mentioned of the share transfers are only half of the whole story. The correspondences were replied in that fashion only because the Defendants had only raised the issue of the shares in their email. At no point in time was it mentioned that the Plaintiff is willing to forego the payment. [99] When the Defendant’s solicitor wrote the email in reference to a resolution, which is expressly separate to the transfer of shares: (“…that the parties have resolved their differences…”) (1st half of the story) and (“…and it only remains…”) (2nd half of the story) what was resolved here must have referred to the payment, which was not at any point in time foregone or acquiesced by the Plaintiff. [100] In fact, even after the supposed finality of the settlement based on the two terms (which the Court disagrees), it was the Defendants themselves who wrote to the Court the following in their letter dated 30.9.2008: “Sebagai peguamcara kedua-dua Defendan, kami ingin mengesahkan bahawa kedua-dua pihak telah bersetuju menyelesaikan guaman ini di mana hanya beberapa terma-terma masih belum diselesaikan” (emphasis added) (see Bundle B, page 398) [101] In this instance, even the Defendants admit that besides the terms for the share transfers, there are matters still not yet settled. And besides the share transfers, there is nothing left to be considered, except for the payment in consideration for the return of the shares. It is very plain. Nothing else would be of importance as a term besides the return of the shares, and the payment for the return. [102] This Court opines that the line of correspondences which mentioned the arrangement of shares transfer, merely proved the settlement on the transfer of shares and not the settlement of the debt owing to the Plaintiff. Thus, it is this Court’s considered view that the correspondences do not automatically prove the settlement on payment. The Defendant’s letter itself set the tone of the correspondence; That is, to separate the discourse and discussion on the payment (which is referred to in the passage “…resolved their differences…”) and the transfer of shares (which was referred to in the passage “it only remains for the…”) [103] It was the Defendants who first set the tone of the ensuing correspondence to separate the issue of payment and return of the shares. Thereto, there is no reason for the Plaintiff to mention it in their replies. It was the tone of the string of correspondence that payment is separate and not included in the discussion at the time. [104] Thus, it is only fitting, and justifiable that the Plaintiff raised the failure of the third party’s obligation to pay only after the line of correspondences relied onto by the Defendants, as the Defendants were already demanding for the return of the shares. [105] It is evidently clear that the correspondences relied onto by the Defendants were only one part of a whole settlement which ultimately fell through because the other part of the settlement was not put into effect (which is the third party’s failure to effect payment). [106] In cognizance of the above, the Court finds that the correspondences relied upon by the Defendants do not at all evince a final and conclusive settlement agreement reached between the Parties. This finding is especially compelling and probable owing to the preceding finding that the third party involvement is known to both of the parties especially the Defendants themselves. [107] In view of the above finding, the Defendants’ contention on the Plaintiff’s failure to return their shares, need not be necessary delved into by this Court as there was never a concluded final settlement between the parties and especially because the Defendants’ never paid the sum due and owing to the Plaintiff. [108] With regard to the Second Defendant’s case, it is the Court’s view that, from his own testimony in Court, it is evident that he merely echoes the defence set up by the First Defendant and his Defence shall similarly fail on the same grounds as the First Defendant. [109] Having considered the evidence before this Court in its totality, it is this Court judgment that upon the balance of probabilities, the Plaintiff has proven its case against both the Defendants. Therefore, the Court allows the Plaintiff’s claim and orders the Defendants to pay the Plaintiff the sum claimed, due and owing: a. RM 16 540 000.00 together with interest at the rate of 12% from 8.6.1999 until judgment date and 5% until full settlement. b. RM 3 821 850.00 together with the interest of 8% from 9.4.1999 until judgment date and 5% until full settlement. [110] The Defendants’ counter-claim accordingly is dismissed. On the issue of costs [111] Having heard a brief submission from both counsels for the Plaintiff and the Defendants, the First and Second Defendants shall pay the Plaintiff RM60,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 31st December 2014. For the Plaintiff - Tetuan Kamaruddin & Partners Encik Won Walter Pereira Encik Rameshwaran A/L Ramachandran For the Defendants - Tetuan Ong & Manecksha Encik R.J Manecksha 54

Tika 2.6.0

22-299-2009

PLAINTIF Tenaga Nasional Berhad DEFENDAN Rank Metal Sdn Bhd

04/12/2014

YA DATUK AZIMAH BINTI OMAR

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. MT4- 22-299-2009 Antara Tenaga Nasional Berhad ... Plaintif Dan Rank Metal Sdn Bhd … Defendan (Disatukan dan didengar bersama dengan Guaman Sivil No: MT4-22-300-2009 menurut Perintah Bertarikh 15 Oktober 2014) Antara Tenaga Nasional Berhad ... Plaintif Dan LB Alumunium Manufacturing Sdn Bhd … Defendan ALASAN PENGHAKIMAN (Selepas perbicaraan penuh) [1] Di hadapan saya terdapat dua guaman sivil yang telah disatukan di bawah Perintah Mahkamah bertarikh 15.10.2014. Guaman-guaman sivil tersebut adalah Guaman Sivil No. MT4-22-299-2009 (Guaman 299) dan Guaman Sivil No.MT4-22-300-2009 (Guaman 300). Atas perintah penyatuan tersebut, kedua-dua guaman telahpun dibicarakan bersama-sama. [2] Kedua-dua guaman ini melibatkan Plaintif yang sama iaitu Tenaga Nasional Berhad, yang merupakan syarikat yang menjana dan membekal tenaga elektrik kepada pengguna di Malaysia. Defendan di dalam Guaman 299 adalah Rank Metal Sdn. Bhd, manakala Defendan di dalam Guaman 300 adalah LB Alumunium Manufacturing Sdn. Bhd. Rank Metal Sdn Bhd adalah anak syarikat atau subsidiari kepada LB Alumunium Sdn Bhd, yang kini dikenali sebagai LB Alumunium Bhd. [3] Bagi maksud kemudahan rujukan pihak-pihak di dalam guaman 299 dan guaman 300, Rank Metal Sdn. Bhd. akan dirujuk sebagai Defendan Pertama, manakala LB Alumunium Bhd. akan dirujuk sebagai Defendan Kedua. Di samping itu, guaman 299 dan guaman 300 adalah dirujuk sebagai kedua-dua guaman. Adakalanya pula Defendan Pertama dan Defendan Kedua akan dirujuk sebagai kedua-dua Defendan. [4] Plaintif telah menuntut terhadap Defendan Pertama dan Defendan Kedua jumlah terhutang atas kerugian/kehilangan hasil yang dialaminya (loss of revenue) bagi penggunaan bekalan elektrik yang telah tidak direkodkan dengan tepat dan benar di premis-premis perniagaan Defendan Pertama dan Defendan Kedua. Di dalam Penyata-penyata tuntutannya, Plaintif telah menuntut terhadap Defendan Pertama untuk pembayaran wang berjumlah RM497,688.28 bagi kerugian atau kehilangan hasil termasuk kos perbelanjaan yang ditanggung oleh Plaintif yang timbul daripada pengusikan terhadap pepasangan meter di premis Defendan Pertama, Manakala terhadap Defendan Kedua pula, Plaintif telah menuntut pembayaran wang berjumlah RM1,132,312.915 atas alasan yang sama. Plaintif juga menuntut faedah pada kadar 8% setahun ke atas kedua-dua jumlah tersebut dari tarikh penghakiman sehingga penyelesaian sepenuhnya beserta kos tindakan. [5] Tuntutan Plaintif terhadap kedua-dua Defendan adalah bersandarkan kepada seksyen 38 Akta Bekalan Elektrik 1990 (Akta). Seksyen 38 Akta antara lain memperuntukkan berikut: 38. (1) Jika mana-mana orang yang diambil kerja oleh pemegang lesen mendapat keterangan di mana-mana premis yang pada pendapatnya membuktikan bahawa suatu kesalahan telah dilakukan di bawah subseksyen 37(1), (3) atau (14), pemegang lesen atau mana-mana orang yang diberi kuasa sewajarnya oleh pemegang lesen boleh, dengan memberi notis tidak kurang daripada dua puluh empat jam, dalam apa-apa bentuk sebagaimana yang ditetapkan, menyebabkan bekalan elektrik dipotong daripada premis tersebut. (1A)… (2)… (2A) … (3) Pemegang lesen boleh menghendaki pengguna membayar kepadanya apa-apa kerugian hasil yang disebabkan oleh kesalahan yang dilakukan di bawah subseksyen 37(1), (3) dan (14) dan apa-apa perbelanjaan yang dilakukan oleh pemegang lesen di bawah seksyen ini termasuk perbelanjaan yang dilakukan berkenaan dengan penyambungan semula bekalan elektrik. (4) Suatu pernyataan bertulis oleh seseorang pekerja pemegang lesen yang diperakui dengan sempurnanya oleh pemegang lesen atau mana-mana orang yang diberi kuasa oleh pemegang lesen, yang menyatakan— (a) amaun kerugian hasil atau perbelanjaan yang dilakukan oleh pemegang lesen; dan (b) orang yang bertanggungan bagi pembayarannya, hendaklah menjadi keterangan prima facie mengenai pembayaran yang kena dibuat oleh pengguna di bawah subseksyen (3). (5) Amaun yang dinyatakan dalam pernyataan bertulis itu hendaklah, dalam tempoh yang dinyatakan dalam pernyataan itu, menjadi genap masa dan kena dibayar kepada pemegang lesen dan jika tidak dibayar, amaun itu hendaklah didapatkan kembali melalui tindakan sivil di mahkamah. [6] Fakta kes adalah seperti berikut: 6.1 Defendan Pertama adalah sebuah syarikat yang ditubuhkan di bawah Akta Syarikat 1965 yang mempunyai alamat berdaftar di No. 275, (Tingkat 1) Jalan Haruan 1, Oakland Industrial Park, 70200 Negeri Sembilan. Defendan Kedua yang juga merupakan syarikat induk Defendan Pertama mempunyai alamat berdaftar yang sama dengan Defendan Pertama. 6.2 Defendan Pertama dan Defendan Kedua menjalankan perniagaan mereka di premis yang beralamat Lot 11, Jalan Perusahaan Beranang, 43700 Beranang, Semenyih, Selangor. (Kedua-dua premis tersebut). 6.3 Adalah fakta yang tidak dipertikaikan bahawa Defendan Pertama dan Defendan Kedua adalah syarikat yang pengilang, barangan-barangan yang berasaskan alumunium extrusion dan ceiling metal tee products. Di samping menjalankan aktiviti-aktiviti pengilangan barang-barang, kedua-dua Defendan juga menjalankan urusniaga barangan-barangan tersebut serta memasarkan produk-produknya. 6.4 Adalah fakta yang tidak dipertikaikan juga bahawa Defendan Kedua adalah sebuah syarikat yang disenaraikan di Bursa Malaysia. 6.5 Bagi operasi pengilangan dan perniagaan mereka, kedua-dua Defendan telah memohon Plaintif untuk membekalkan tenaga elektrik ke premis-premis mereka. Permohonan kedua-dua Defendan untuk pembekalan tenaga elektrik ke premis-premis kedua-dua Defendan telah dipersetujui Plaintif. Bagi merekodkan penggunaan tenaga elektrik di kedua-dua premis tersebut, Plaintif telah memasang meter elektrik di premis-premis Defendan Pertama dan Defendan Kedua di mana nombor akaun Defendan Pertama adalah 01800095496900, manakala nombor akaun Defendan Kedua pula adalah 01800077410810. 6.6 Plaintif melalui pekerjanya telah menjalankan pemeriksaan meter rutin/berkala di premis Defendan pada April 2006 dan mengesyaki terdapat pengusikan meter/pepasangan meter di premis Defendan Pertama. Susulan daripada itu, Plaintif telah menjalankan pemeriksaan meter di premis perniagaan Defendan Pertama dan Defendan Kedua, masing- masing pada 22.5.2006 dan 23.5.2006. Sewaktu pemeriksaan tersebut, Plaintif telah mendapati bahawa sememangnya terdapat pengusikan atau kejanggalan pada pepasangan meter-meter elektrik di kedua-dua premis tersebut. Pengusikan atau kejanggalan terhadap pepasangan meter-meter tersebut telah menyebabkan meter-meter itu telah tidak merekodkan penggunaaan sebenar elektrik di premis-premis tersebut. Plaintif dengan itu telah mengalami kerugian atau kehilangan hasil atas tindakan pengusikan yang meyebabkan penggunaan bekalan elektrik sebenar tidak direkodkan pembacaannya di meter-meter yang telah dipasang di premis kedua-dua Defendan tersebut. 6.7 Plaintif yang bersandarkan kepada seksyen 38 Akta telah membuat pengiraan semula atas bekalan eletrik yang tidak direkodkan penggunaannya di premis kedua-dua Defendan kemudiannya telah mengeluarkan penyataan bertulis menurut seksyen 38(4) dan menuntut supaya Defendan Pertama dan Defendan Kedua membayar kepada Plaintif kerugian hasil berserta kos-kos perbelanjaan yang dialaminya akibat dari pengusikan atau kejanggalan pada pepasangan meter-meter yang dipasang di premis kedua-dua Defendan. 6.8 Walaupun beberapa peringatan/notis telah dikeluarkan supaya kedua-dua Defendan menjelaskan jumlah terhutang tesebut, namun kedua-dua Defendan telah gagal berbuat demikian, justeru kedua-dua guaman sivil ini difailkan oleh Plaintif. 6.9 Defendan Pertama dan Defendan Kedua menafikan sekeras-kerasnya tanggungan mereka ke atas jumlah-jumlah yang dikatakan terhutang kepada Plaintif. Di dalam mempertikaikan tuntutan Plaintif tersebut, secara asasnya di dalam penyata-penyata pembelaan mereka, kedua-dua Defendan telah memplidkan pembelaan-pembelaan berikut: i) menafikan terdapatnya pengusikan kepada pepasangan meter-meter elektrik di kedua-dua premis dan menegaskan bahawa meter-meter elektrik tersebut adalah di dalam kawalan Plaintif kerana meter-meter itu terletak di dalam bilik yang dikunci oleh Plaintif, maka Defendan Pertama dan Defendan Kedua tidak mempunyai akses kepada meter-meter elektrik yang dipasang Plaintif di kedua-dua premis tersebut. ii) meter-meter elektrik yang dipasang sememangnya gagal berfungsi dengan baik kerana kegagalan penyelenggaraan di pihak Plaintif di mana Defendan Pertama mendakwa bahawa aduan mengenai kegagalan meter untuk berfungsi dengan baik telah dibuat kepada Plaintif sejak bulan September 2005 lagi sebelum pemeriksaan yang dibuat ke atas premis Defendan Pertama. Kedua-dua Defendan mendakwa bahawa pemeriksaan yang dibuat oleh Plaintif ke atas meter-meter elektrik tersebut adalah susulan daripada aduan Defendan tersebut. iii) pemeriksaan ke atas meter telah dilakukan secara sulit oleh Plaintif tanpa kehadiran wakil atau pekerja kedua-dua Defendan. iv) Plaintif adalah diestop dari membuat tuntutan kerana bayaran terhadap bil-bil yang dikeluarkan oleh Plaintif atas penggunaan elektrik kedua-dua Defendan telahpun dijelaskan oleh Defendan Pertama dan Defendan Kedua. v) Plaintif tidak berhak untuk membuat tuntutan-tuntutan kebelakang yang melebihi tempoh tiga bulan kerana Peraturan 11 Peraturan-Peraturan Bekalan Pemegang Lesen 1990 hanya membenarkan pelarasan ke belakang untuk tempoh tidak melebihi tiga bulan daripada tarikh Defendan diberitahu mengenai caj terkurang. Di dalam kes ini surat Plaintif kepada Defendan mengenai perkara ini bertarikh 9.11.2006. vi) pengiraan atau perhitungan kebelakang oleh Plaintif bagi penggunaan bekalan tenaga elektrik yang gagal direkodkan bacaan sebanyak -25.48% bagi Defendan Pertama berjumlah RM497,682.28 termasuk kos perbelanjaan dan bagi Defendan Kedua sebanyak -59.98% yang berjumlah RM1,132,812.95 termasuk kos perbelanjaan adalah dipertikaikan. [7] Hak statutori Plaintif di bawah seksyen 38 Akta iaitu untuk menuntut terhadap pelanggannya amaun kerugian atau kehilangan hasil bagi penggunaan bekalan elektrik yang tidak direkodkan penggunaan elektrik sebenar akibat kesalahan-kesalahan yang dilakukan di bawah subseksyen 37(1), (3) dan (14) Akta adalah jelas dan mantap. Terdapat banyak nas undang-undang yang memutuskan mengenai hak statutori Plaintif ini. (Sila lihat: i. Claybricks & Tiles Sdn Bhd v. Tenaga Nasional Bhd [2007] 1 MLJ 217. ii. WRP Asia Pacific Sdn Bhd v Tenaga Nasional [2012] 4 CLJ 478. iii. Tan Yeong Kim Lwn Tenaga nasional Berhad [2000] 8 CLJ 629.) [8] Undang-undang juga adalah jitu bahawa bagi membolehkan Plaintif berjaya menuntut kerugian hasil menurut seksyen 38 Akta ini, Plaintif pertamanya mestilah membuktikan atas imbangan kebarangkalian berlakunya kesalahan di bawah seksyen 37(1), (3) dan (14) Akta. Di dalam kedua-dua guaman ini, nyata bahawa Plaintif telah menuntut kerugian atau kehilangan hasil atas pengusikan (tampering) meter elektrik yang merupakan suatu kesalahan di bawah seksyen 37(1) Akta. [9] Pihak-pihak telah mengemukakan sebanyak sembilan isu untuk ditentukan oleh saya tetapi pada pandangan saya isu-isu tersebut boleh disimpulkan seperti berikut: (i) samada terdapat pengusikan pada pepasangan meter di premis-premis perniagaan Defendan Pertama dan Defendan Kedua. (ii) jika jawapan (i) adalah positif, samada Defendan Pertama dan Defendan Kedua bertanggungan untuk membayar kerugian dialami oleh Plaintif atas kehilangan hasil penggunaan bekalan elektrik yang tidak direkodkan sebagaimana tuntutan Plaintif melalui penyataan bertulisnya menurut seksyen 38(4) dan (5) Akta. (iii) samada keterangan prima facie Plaintif menurut seksyen 38(4) berjaya disangkal oleh kedua-dua Defendan. (iv) samada Plaintif adalah diestopkan daripada membuat tuntutan-tuntutan ini memandangkan Defendan Pertama dan Defendan Kedua telahpun menjelaskan bil-bil yang dikeluarkan oleh Plaintif bagi penggunaan elektrik di premis-premis mereka. (v) samada Plaintif adalah dihalang oleh Peraturan 11, Peraturan-Peraturan Bekalan Pemegang Lesen 1990 (Peraturan 11) daripada menuntut jumlah-jumlah kerugian/ kehilangan hasil tersebut kerana Peraturan 11 hanya membenarkan pelarasan ke belakang tidak melebihi tiga bulan daripada tarikh Defendan (surat Plaintif kepada Defendan bertarikh 9.11.2006) diberitahu mengenai caj terkurang. [10] Bagi membuktikan tuntutannya, Plaintif telah memanggil lima (5) orang saksi iaitu: 1. SP1 - Ahmad Zamrun bin Putih, yang merupakan juruteknik Plaintif yang menjalankan pemeriksaan di premis Defendan Pertama dan Defendan Kedua. 2. SP2 - Zulkiflee bin Umar, pegawai Unit Penguatkuasaan Suruhanjaya Tenaga yang mengetuai pemeriksaan yang dijalankan Suruhjaya Tenaga dan Plaintif. 3. SP3 - Md. Nizam bin Samsuri, yang merupakan seorang jurutera Plaintif yang turut serta di dalam pemeriksaan dan beliau adalah jurutera yang telah memperolehi peratusan ralat penggunaan bekalan elektrik yang tidak direkodkan bacaannya dengan membuat ujian kejituan jangka dan membuat pengiraan perbandingan arus. 4. SP4 - Ghazali bin Nordin yang membuat pengeluaran bil ke belakang bagi jumlah yang tidak direkodkan bacaan berdasarkan pengiraan peratusan ralat yang diperolehi oleh SP3. 5. SP5 - Ahmad Tazmin bin Mohd Nor Pegawai Penyiasat Suruhanjaya Tenaga yang bertanggungjawab kepada barang-barang yang disita di premis kedua-dua Defendan dan menjalankan penyiasatan kes kesalahan jenayah di bawah seksyen 37(3)(e) Akta di mana Defendan Pertama dan Defendan Kedua telah dituduh di hadapan Mahkamah Sesyen Jenayah Kajang bagi kes yang didaftarkan sebagai 63-7-2012 dan 63-8-2012. [11] Manakala bagi menyangkal tuntutan-tuntutan Plaintif, kedua-dua Defendan pula telah memanggil tiga orang saksi yang berikut: i. SD1 - Yap Chee Woon yang merupakan Pengarah Eksekutif kedua-dua Defendan. ii. SD2 - Ong Kok Leong yang merupakan bekas eksekutif kanan kedua-dua Defendan. iii. SD3 - Nadarajah a/l Ramasamy yang merupakan bekas penyelia penyelenggaraan (maintenance) kedua-dua Defendan. Isu (i): samada terdapat pengusikan pada pepasangan meter di premis-premis perniagaan Defendan Pertama dan Defendan Kedua. Pemeriksaan kepada pepasangan meter di premis Defendan Pertama (Rank Metal Sdn. Bhd) dan Defendan Kedua (LB Aluminium Bhd) [12] Keterangan berikut telah dikemukakan oleh Plaintif di dalam pemeriksaan yang telah dijalankan ke atas pepasangan meter di premis Defendan Pertama: 12.1 Pada sekitar bulan April 2006, SP1 bersama rakannya bernama Zabidi bin Muhammad telah menjalankan pemeriksaan rutin atau berkala terhadap premis Defendan Pertama. Menurut SP1, pemeriksaan berkala/rutin bersama rakannya itu adalah dijalankan terhadap premis-premis pengguna-pengguna kuasa besar (large power consumers atau LPC). Sesampainya mereka di lokasi di mana meter itu ditempatkan, SP1 telah mendapati bahawa pintu bilik di mana meter itu ditempatkan adalah tidak berkunci. Di samping itu SP1 telah mendapati bahawa sil di kiosk meter tidak ada. Daripada penemuan kejanggalan semasa pemeriksaan rutin atau berkala tersebut, SP1 telah mengesyaki terdapat pengusikan meter elektrik yang dipasang Plaintif di premis Defendan Pertama, namun begitu memandangkan pemeriksaan yang dijalankan tersebut adalah pemeriksaan rutin atau berkala, beliau tidak mempunyai peralatan yang sesuai untuk kerja-kerja pemeriksaan terperinci bagi melaksanakan kerja-kerja pemeriksaan dan pembetulan. SP1 telah memaklumkan kepada SP3 melalui telefon mengenai kejanggalan yang beliau temui dan SP3 telah mengarahkan supaya SP1 meletakkan sil Plaintif di kiosk meter tersebut sebelum meninggalkan premis tersebut. 12.2 Susulan daripada itu, pada 22.5.2006, SP1 bersama pasukan pegawai Plaintif termasuk SP3 dan Unit Penguatkuasaan Suruhanjaya Tenaga yang diketuai oleh SP2 telah pergi ke premis Defendan Pertama. Setibanya mereka di premis Defendan Pertama, pasukan tersebut telah memperkenalkan diri dan dibenarkan masuk ke dalam premis oleh seorang bernama R. Nadarajah (SD3) yang merupakan pekerja Defendan Pertama. SD3 kemudian telah membawa pasukan Plaintif ke bilik di mana meter ditempatkan. 12.3 Menurut SP1 lagi, pasukannya seterusnya telah menjalankan pemeriksaan fizikal ke atas meter. SP1 telah juga menerangkan bahawa pemeriksaan fizikal ini adalah untuk memeriksa samada terdapat petanda kejanggalan pada paparan meter elektrik, sil bit dan maklumat no. sil dan keadaan fizikal pepasangan meter. Hasil pemeriksaan fizikal terhadap pepasangan meter, SP1 telah memberitahu pasukan Plaintif telah menemui kejanggalan-kejanggalan berikut: (i) sil di kiosk meter sememangya tidak ada. Sil yang terdapat pada kiosk meter adalah sil yang telah SP1 letakkan di kiosk meter tersebut semasa membuat pemeriksaan berkala/rutin di premis Defendan Pertama pada bulan April 2005. (ii) pendawaian S1 fasa kuning telah disentuh ke S2 fasa merah pada ‘Test Terminal Block Feeder 1’; dan (iii) pendawaian S1 fasa kuning telah disentuh ke S2 fasa kuning pada ‘Test Terminal Block Feeder 2’. 12.4 Menurut SP1 lagi, pemeriksaan seterusnya telah dijalankan di mana penutup atau jaring kepada meter tersebut telah dibuka bagi merekodkan maklumat-maklumat meter seperti nombor siri meter, buatan meter dan jenis. Pasukan Plaintif telah seterusnya mengambil bacaan arus untuk menentukan samada terdapat apa-apa kejanggalan pada pengukuran tenaga elektrik yang masuk ke meter tersebut. SP1 di dalam keterangannya telah memberitahu bahawa pengubahsuaian pendawaian pada S1 fasa kuning tersebut telah menyebabkan pintasan pada arus di ‘Test Terminal Block’. Ini menyebabkan meter telah tidak dapat merekodkan bacaan sebenar penggunaan elektrik di premis Defendan Pertama. Dengan adanya pintasan pada wayar arus S1 fasa kuning di ‘Test Terminal Block’, pasukan Plaintif telah mengambil bacaan arus yang bermula di ‘Test Terminal Block’ dan bacaan arus di meter. SP1 telah juga memberi keterangan bahawa bagi premis Defendan Pertama bacaan arus dibuat dengan menggunakan alat bernama Clamp on ammeter atau Amptong dan bacaan arus adalah di dalam Ampere (Amp). Bacaan-bacaan yang direkodkan pasukan Plaintif adalah seperti berikut: Feeder 1 Fasa Merah Fasa Kuning Fasa Biru Test Terminal Block 0.745 0.741 0.820 Meter 0.736 0.162 0.822 12.5 Berdasarkan bacaan-bacaan yang diperolehinya, SP3 telah membuat pengiraan peratusan ralat berdasarkan formula berikut: Peratusan ralat Meter) – ) (0.745+0.741+0.822) 2.308 12.6 Pengiraan peratusan ralat SP3 mendapati bahawa ralat yang ketara dalam pembacaan meter bagi akaun Defendan Pertama adalah sebanyak -25.48%. [13] Pasukan Plaintif telah menjalankan pemeriksaan meter/pepasangan meter ke atas premis Defendan Kedua pada keesokan harinya iaitu pada 23.5.2006. SP1 di dalam keterangannya memberitahu mahkamah berikut: 13.1 Pemeriksaan ke atas meter elektrik di premis Defendan Kedua telah dijalankan pada 23.5.2006. Pemeriksaan fizikal oleh pasukan Plaintf telah mendapati bahawa sil pintu pada kiosk dan stiker keselamatan telah koyak. Pemeriksaan terperinci ke atas meter elektrik di premis Defendan Kedua ini, pasukan Plaintif telah menemui kejanggalan di mana terdapatnya ‘bridging’ pada S1 dan S2 fasa biru di OBA dalam kiosk jangka. ‘Bridging’ tersebut telah membuat pintasan sebelum ‘Test Terminal Block’ apabila pendawaian fasa biru di OBA telah diubahsuai di mana pendawaian fasa biru di S1 telah disambung terus ke S2. Menurut SP1 lagi, kewujudan ‘bridging’ memintas arus sebelum ‘Test Terminal Block’ pada S1 dan S2 fasa biru di OBA telah memberi kesan kepada meter yang mana meter tidak dapat merekodkan bacaan sebenar penggunaan elektrik di premis Defendan Kedua. 13.2 Seterusnya pasukan Plaintif telah membuat satu ujian kejituan meter untuk menguji ketepatan meter dengan menggunakan alat bernama Portable Working Standard (PWS 1.3) yang mana peratusan ralat yang terdapat di dalam meter semasa gangguan telah direkodkan. Menurut SP1, ujian kejituan telah dibuat sebanyak tiga kali di mana ralat sebanyak -59.98%, -59.64% dan -59.60% telah direkodkan. Untuk maksud pengiraan bil ke kebelakang yang akan dibuat peratusan ralat tertinggi iaitu -59.98 telah digunakan. 13.3 Seterusnya pasukan Plaintif telah membuat ujian perbandingan bacaan arus sebelum dan selepas OBA di mana bacaan-bacaan arus adalah seperti berikut:- Fasa Merah Fasa Biru Sebelum OBA 1.14A 1.46A Selepas OBA 1.13A 0.23A 13.3 Berdasarkan bacaan yang diperolehi, pasukan Plaintif telah mendapati bahawa pengubahsuaian pada pendawaian fasa biru di OBA telah menyebabkan meter elektrik tidak dapat merekodkan penggunaan tenaga elektrik dengan betul dan ini dapat dilihat daripada perbezaan yang besar antara bacaan arus untuk fasa biru sebelum dan selepas OBA. [14] SP3 yang merupakan pegawai atasan SP1 telah memberi keterangan dan telah menyokong dengan jitunya keterangan-keterangan SP1. Keterangan SP1 dan SP3 ini langsung tidak dapat disangkal oleh peguam kedua-dua Defendan. SP3 juga telah memberi keterangan bahawa daripada bacaan-bacaan yang telah direkodkan oleh SP1 beliau sendiri telah membuat pengiraan peratusan ralat penggunaan bekalan elektrik yang tidak direkodkan. SP3 juga telah membuat laporan polis di muka surat 55,Jilid B bagi pemeriksaan yang dilakukan di premis Defendan Pertama. [15] SP2 yang mengetuai Unit Penguatkuasaan Suruhanjaya Tenaga di dalam pemeriksaan yang dilakukan tersebut telah juga menyokong keterangan SP1 dan SP3 dan memantapkan lagi keterangan yang dikemukakan oleh Plaintif. SP2 di dalam keterangannya di mahkamah telah menyatakan bahawa setelah menemui kejanggalan- kejanggalan pada pepasangan meter dan meter dipremis Defendan Pertama telah juga mengarahkan pasukan Plaintif untuk mengambil semua barang bukti seperti meter, sil bit, sil wayar dan seterusnya menyenaraikan borang rampasan Suruhanjaya Tenaga dan menunjukkan kepada SD3 untuk ditandatangan oleh SD3. Menurut SP2 lagi, selepas SD3 menandatangani borang rampasan tersebut sesalinannya telah diserahkan kepada SD3. Selanjutnya SP2 telah memberitahu mahkamah bahawa bagi pemeriksaan di premis Defendan Kedua, Suruhanjaya Tenaga telah diketuai oleh Encik Zaini bin Abdul Wahab dan menurut SP2 Encik Zaini tidak lagi berkhidmat dengan Suruhanjaya Tenaga. SP2 seterusnya memberitahu bahawa di atas pemeriksaan, penemuan-penemuan kejanggalan dan rampasan yang di premis kedua-dua Defendan, Suruhanjaya Tenaga ada membuat laporan polis. [16] SP5, pegawai penyiasat bagi kesalahan-kesalahan jenayah yang dipertuduh terhadap kedua-dua Defendan telah mengemukakan kesemua barang rampasan yang telah disita dari premis kedua-dua Defendan bagi pemeriksaan yang telah dijalankan pada 22 dan 23 Mei 2005. [17] Keterangan-keterangan saksi-saksi Plaintif yang tidak disangkal bahawa SD3 sememangnya hadir semasa pasukan Plaintif menjalankan pemeriksaan ke atas pepasangan meter-meter yang di premis-premis Defendan Pertama dan Defendan Kedua. [18] Di dalam kedua-dua guaman ini apa yang jelas adalah keterangan-keterangan lisan saksi-saksi Plaintif telah disokong dengan begitu kukuh dengan keterangan-keterangan dokumentar iringan dan semasa (contemprenous) hasil dari pemeriksaan yang telah dijalankan di premis Defendan Pertama. Keterangan-keterangan dokumentar disenaraikan seperti berikut: (a) Borang Pemakluman Semakan Meter Elektrik oleh TNB bertarikh 22.5.2006 (mukasurat 27 – 32, Jilid B) (b) Surat Pemberitahuan Pengambilan Bahan-bahan Bukti bertarikh 22.5.2006 (mukasurat 33 – 35, Jilid B) (c) Gambar-gambar yang diambil semasa pemeriksaan dijalankan di premis Defendan Pertama pada 22.5.2006 (mukasurat 36 – 54, Jilid B) (d) Laporan Polis yang dibuat oleh SP3 pada 22.5.2006 (mukasurat 55, Jilid B) (e) Ulasan Teknikal oleh Plaintif bertarikh 22.5.2006 (mukasurat 56, Jilid B) [19] Keterangan-keterangan dokumentar iringan dan semasa (contempreneous) di dalam pemeriksaan yang telah dijalankan ke atas pepasangan meter-meter di premis Defendan Kedua yang telah dikemukakan oleh Plaintif adalah seperti berikut: (a) Borang Pemakluman Semakan Meter Elektrik oleh TNB bertarikh 23.5.2006 (mukasurat 57 – 62, Jilid B) (b) Gambar-gambar yang diambil semasa pemeriksaan dijalankan di premis Defendan Kedua pada 23.5.2006 (mukasurat 63 – 75, Jilid B) (c) Ulasan Teknikal Plaintif bertarikh 23.5.2006 (di mukasurat 78, Jilid B) (d) Laporan Polis SP2 pada 23.5.2006 (mukasurat 76 – 77, Jilid B) [20] Keterangan Plaintif bahawa berlakunya pengusikan pepasangan meter di premis Defendan Pertama dan Defendan Kedua bukan sahaja dibuktikan oleh keterangan lisan saksi-saksi dan keterangan dokumentar iringan dan semasa tetapi juga dibuktikan dengan barangan fizikal yang diperolehi di premis-premis Defendan Pertama dan Defendan Kedua yang telah disita oleh Plaintif melalui Borang Senarai Sita (muka surat 33 – 35 Jilid B). Eksibit P1 hingga P25 adalah barangan fizikal yang disita dari premis Defendan Pertama, manakala Eksibit P26 hingga P40 telah disita dari premis Defendan Kedua. [21] Tambahan kepada itu lagi, dokumen-dokumen di mukasurat 33 hingga 35, Jilid B menunjukkan bahawa sitaan yang dibuat telah diakui oleh kedua-dua Defendan di mana wakilnya SD3 telah hadir semasa pemeriksaan dan telahpun menandatangani dokumen di muka surat 33 – 35 tanpa paksaan. [22] Defendan Pertama dan Defendan Kedua di dalam usaha mereka menangkis berlakunya atau wujudnya kesalahan pengusikan meter di kedua-dua premis tersebut telah membangkitkan pengataan-pengataan berikut: (a) meter di kedua-dua premis tersebut sememangnya tidak berfungsi dengan baik dan telah rosak (faulty). (b) meter-meter tersebut adalah di dalam jagaan Plaintif kerana bilik meter dikunci dan kuncinya dalam pegangan Plaintif. (c) Plaintif gagal mengemukakan laporan atas laporan rutin atau berkala ke atas syarikat-syarikat LPC yang didakwa dilakukan oleh SP1. (d) semasa pemeriksaan dijalankan di premis Defendan Pertama pada 22.2.2006 sil Plaintif pada kiosk meter didapati tidak koyak. (a) meter di kedua-dua premis tersebut sememangnya tidak berfungsi dengan baik kerana telah rosak(faulty). [23] Peguam terpelajar bagi kedua-dua Defendan telah menghujahkan bahawa terdapat keterangan yang telah dikemukakan oleh Defendan bahawa Defendan sejak bulan September tahun 2005 lagi telah menyedari bahawa walaupun tahap pengeluaran kekal seperti biasa tetapi penggunaan bekalan elektrik daripada bil-bil yang dikeluarkan oleh Plaintif telah didapati menurun. SD2 dan SD3 di dalam keterangan mereka telah menyatakan bahawa aduan-aduan berkenaan kerosakan telah dibuat kepada seorang yang bernama Puan Khodijah Kamaruddin (Puan Khodijah) yang dikatakan pegawai atau pekerja Plaintif mengenai kerosakan meter tersebut sejak bulan September 2005 lagi. Bagi membuktikan pengataan tersebut kedua-dua Defendan telah bergantung kepada dua dokumen yakni: i. emel Puan Khodijah bertarikh 13.4.2006 kepada SP3 yang dikatakan rakan sekerja {mukasurat 11,Jilid B(i)}. Emel tersebut adalah seperti berikut: From: Khodijah Kamarudin @PK BANGI Sent: Thursday, April 13, 2006 12.13 PM To: ‘mailto:nizamsamsuri@tnbm.com.my Subject: TUKAR METER HT YANG ROSAK En Nizam sila confirm type w/o yang akan saya keluar untuk nombor akaun tersebut:- 1) 774226 – CHG PLYWOOD – Battery Lemah – w/o 34 2) 774316 – SAN TEH – Meter Blank – w/o 34 3) 774108 – LB ALLUMINIUM – Meter slow 34 4) 774376 – PETRONAS – Meter rosak w/o 34 5) 774784 – GUPPY PLASTIK – Battery lemah – w/o 34 6) 774598 – LYE MANUFACTURING – Laporan meter telah ditukar – w/o 34 Harap dapat kerjasama dari En Nizam ……Tq ii. surat SD2 kepada Plaintif bertarikh 2.12.2008 {mukasurat 445, Jilid B(iii)} yang kononnya Defendan Pertama telah membuat aduan kepada Puan Khodijah atas masalah meter sejak September 2005. [24] Adalah dihujahkan bagi pihak Defendan Pertama bahawa Defendan Pertama tidak akan membuat aduan mengenai kerosakan meter (faulty meters) kepada Plaintif sekiranya meter itu diusik. [25] Untuk pengataan tersebut, saya bersependapat dengan dengan peguam terpelajar Plaintif bahawa tiada sebarang dokumen yang boleh menyokong pengataan SD2 bahawa beliau telah membuat aduan bermula September 2005 lagi dan aduan berterusan mengenai kerosakan meter telah dibuat kepada Plaintif mengenainya. Bagi saya, emel di muka surat 11, Jilid B(i) tidak langsung membayangkan atau mengaitkan tentang adanya kerosakan pada meter di premis Defendan Pertama. Emel yang ditulis oleh Pn. Khodijah kepada SP3 semata-mata menyatakan bahawa meter perlahan. Kalaulah benar meter di premis Defendan Pertama rosak sejak September 2005 lagi dan aduan-aduan berterusan mengenainya dibuat oleh SD2 kepada Puan Khodijah, mengapakah tidak ada sebarang surat atau emel daripada Defendan sendiri kepada Plaintif untuk menunjukkan adanya aduan mengenai kerosakan meter di premis Defendan telah dibuat kepada Plaintif. Defendan Pertama cuba bergantung kepada emel Pn Khodijah bertarikh 13 April 2006 yakni lebih kurang 7 bulan selepas kononnya laporan telah dibuat kepada Plaintif berkenaan meter yang rosak. Apa yang jelas, emel ini tidak jelas kenapa Pn Khodijah telah menulis emel ini kepada SP3 selain daripada nota meter perlahan. SP3 sendiri tidak mengetahui kenapa emel ini ditulis oleh Pn. Khodijah kepadanya. Pn Khodijah tidak dipanggil oleh Defendan Pertama untuk memberi keterangannya mengenai emelnya. Di samping itu, sekiranya Defendan Pertama jujur dan ikhlas ingin memaklumkan kepada Plaintif bahawa terdapat kerosakan pada meter, Defendan Pertama boleh memaklumkan mengenai kerosakan ini semasa SP1 menjalankan pemeriksaan rutin/berkala di premis tersebut pada bulan April 2006, tetapi ini tidak dibuat oleh Defendan Pertama pun. [26] Manakala berkenaan surat SD2 bertarikh 2.12.2008 pula, fakta yang jelas bahawa surat SD2 itu telah ditulis selepas lebih dua tahun setelah pemeriksaan dijalankan pada 22 dan 23 Mei 2006 ke atas premis kedua-dua Defendan di mana pengusikan meter /pepasangan meter telah dikesan di premis-premis tersebut. Adalah menjadi dapatan saya bahawa penulisan surat sebegini sememangnya sesuatu fikiran terkemudian (afterthought) oleh kedua-dua Defendan dan bertujuan mengelak tanggungan. Justeru, adalah dapatan saya bahawa pengataan Defendan Pertama terdapat kerosakan meter di premis Defendan Pertama dan aduan-aduan telah dibuat mengenainya kepada Plaintif adalah rekaan semata-mata. (b) meter-meter tersebut adalah di dalam jagaan Plaintif kerana bilik meter dikunci dan kuncinya dalam pegangan Plaintif. [27] Pengataan kedua-dua Defendan bahawa mereka tiada akses kepada meter/pepasangan meter kerana meter-meter tersebut adalah di dalam jagaan Plaintif di mana bilik meter dikunci dan kuncinya dalam pegangan Plaintif adalah satu alasan yang direka semata-mata untuk menafikan kewujudan berlakunya pengusikan meter. Saya kata begitu kerana sememang pada logiknya pada awal pepasangan meter, bilik meter akan dikunci dengan kunci Plaintif. Satu hakikat yang tidak boleh diketepikan dan disangkal adalah bilik meter di mana meter ditempatkan atau dipasang adalah di dalam premis ataupun kawasan Defendan Pertama dan Defendan Kedua. Di dalam kes ini keterangan yang tidak dapat disangkal oleh kedua-dua Defendan adalah semasa pasukan Plaintif dan Suruhanjaya Tenaga tiba untuk menjalankan pemeriksaan meter/pepasangan meter di premis kedua-dua Defendan, bilik meter di mana meter itu ditempatkan tidak lagi dikunci. Malahan keterangan saksi-saksi Plaintif di premis Defendan Kedua walaupun meter berkongsi ruang dengan switch gear tetapi pada pemeriksaan engsel kunci ke bilik meter sememangnya telah rosak. Pengataan bahawa meter-meter tersebut adalah di dalam jagaan Plaintif kerana bilik meter dikunci dan kunci dan kuncinya dalam pegangan Plaintif adalah pengataan kosong semata-mata dan merupakan suatu alasan yang remeh-temeh (lame excuse) bagi mengelak tanggungan. (c) Plaintif gagal mengemukakan laporan atas laporan rutin atau berkala ke atas syarikat-syarikat LPC yang didakwa dilakukan oleh SP1. [28] Bagi saya pengataan kedua-dua Defendan yang Plaintif gagal mengemukakan laporan atas laporan rutin atau berkala ke atas syarikat-syarikat LPC adalah satu pengataan yang tidak mempunyai apa-apa asas ataupun justifikasi. Saya tidak nampak kaitan atau kesan ketidakpengemukaan laporan rutin atau berkala SP1 pada 23.4.2006 tersebut kepada kes Plaintif. Ketidakpengemukaan laporan rutin atau berkala tersebut tidak mencacatkan langsung keterangan-keterangan mantap Plaintif atas penemuan-penemuan pengusikan meter/pepasangan meter yang berlaku di premis-premis kedua-dua Defendan pada 22 dan 23.5.2006. Keterangan SP1 sememangnya telah pergi ke premis Defendan Pertama pada 3.4.2006 tidak dapat disangkal oleh kedua-dua Defendan malah keterangan ini telah disokong oleh keterangan dokumentar yang dikemukakan oleh kedua-dua Defendan sendiri yakni buku pendaftaran pelawat di mukasurat 205, Ikatan Dokumen Defendan (Bi). Di dalam buku pendaftaran pelawat pada tarikh 3.4.2006 tersebut nama SP1 dan tandatangan kehadirannya tertera di dalam buku tersebut. SP1 telah mengesyaki wujudnya pengusikan tetapi tidak boleh berbuat apa-apa kerana tidak mempunyai peralatan untuk kerja-kerja pembetulan selain daripada menggantikan sil pada kiosk meter yang telah diusik atau koyak kepada sil Plaintif. Keterangan SP1 yang meletakkan sil Plaintif kepada di meter Defendan Pertama sebelum meninggalkan premis Defendan Pertama menjawab isu (d) yang ditimbulkan Defendan bahawa pada tarikh pemeriksaan dijalankan di premis Defendan Pertama pada 22.2.2006 terdapat sil Plaintif pada kiosk meter. [29] SP1 di dalam keterangannya memberitahu beliau ada membuat laporan rutin untuk tarikh tersebut tetapi laporan itu telah diberikan kepada Suruhanjaya Tenaga bagi kes jenayah yang melibatkan kedua-dua Defendan yang telah dituduh di Mahkamah Sesyen Kajang untuk kesalahan-kesalahan pengusikan meter. Keterangan SP1 yang tidak disangkal bahawa setelah membuat pemeriksaan rutin tersebut, beliau telahpun memaklumkan dapatan megenai syaknya berlakunya pengusikan meter kepada SP3, pegawai atasannya. Keterangan ini disokong oleh SP2. Di dalam hal ini saya tidak ada sebab untuk meragui keterangan SP1 dan SP3. Apa yang lebih penting di dalam kedua-dua guaman ini adalah penemuan-penemuan yang telah didapati oleh pasukan Plaintif pada 22 dan 23.5.2006 di premis-premis tersebut. (a) tiada wakil/pekerja kedua-dua Defendan hadir semasa pemeriksaan dijalankan oleh Plaintif dan Suruhanjaya Tenaga terhadap meter/pepasangan meter. [30] Adalah menjadi dapatan saya bahawa pengataan ketidakhadiran wakil/pekerja kedua-dua Defendan semasa pemeriksaan dijalankan oleh Plaintif dan Suruhanjaya Tenaga terhadap meter di premis-premis tersebut ini adalah satu pengataan pembohongan kedua-dua Defendan yang begitu jelas dan ketara. Kehadiran SD3 semasa pemeriksaan dijalankan di premis-premis tersebut memang tidak dapat disangkal. Keterangan-keterangan SP1, SP2 dan SP3 menyokong keterangan bahawa SD3 sememangnya hadir di bilik meter semasa pemeriksaan dijalankan. Malahan menurut keterangan-keterangan SP1, SP2 dan SP3 bahawa apa-apa penemuan yang didapati semasa pemeriksaan dan tahap (progress) telah dimaklumkan dan diberitahu kepada SD3. Apa yang lagi pasti, semasa pemeriksaan dijalankan gambar-gambar telah diambil dan gambar-gambar di muka surat 38, 42 dan 65, Jilid B jelas SD3 telah kelihatan di dalam gambar-gambar tersebut membuktikan kehadiran bersamanya semasa pemeriksaan dijalankan. SD3 sendiri semasa memberi keterangan mengakui dirinya kelihatan jelas di dalam gambar-gambar tersebut dan beliau sendiri mengakui hadir semasa pemeriksaan dijalankan oleh Plaintif dan Suruhanjaya Tenaga. [31] Tambahan lagi, Borang Senarai Sita di muka surat 33 hingga 35, Jilid B telah menunjukkan kehadiran beliau di mana SD3 telahpun menandatangani dokumen-dokumen tersebut tanpa sebarang paksaan daripada Plaintif. Keputusan bagi isu (i) [32] Penimbangan dan penelitian keterangan-keterangan yang dikemukakan di mahkamah ini, adalah menjadi dapatan saya bahawa wujud dan berlakunya pengusikan meter di premis-premis Defendan Pertama dan Defendan Kedua. Malahan pada pandangan saya keterangan-keterangan yang telah dikemukakan mengenai berlakunya pengusikan meter/pepasangan adalah overwhelming. Dengan yang demikian jawapan bagi isu (i) adalah positif. Isu (ii) dan (iii) ditentukan bersama. ii) samada Defendan Pertama dan Defendan Kedua bertanggungan untuk membayar kerugian dialami oleh Plaintif atas kehilangan hasil penggunaan bekalan elektrik yang tidak direkodkan sebagaimana tuntutan Plaintif melalui penyataan bertulisnya menurut seksyen 38(4) dan (5) Akta. (iii) samada keterangan prima facie Plaintif menurut seksyen 38(4) berjaya disangkal oleh kedua-dua Defendan. [33] Plaintif di dalam kes ini telah menuntut kehilangan hasil atau kerugiannya terhadap bekalan elektrik yang penggunaannya tidak direkodkan pembacaan atas pengusikan meter di premis Defendan Pertama dan kos perbelanjaan yang telah ditanggung oleh Plaintif yang timbul dari pengusikan meter tersebut. Plaintif telah membuat pengiraan atau perhitungan kebelakang unit penggunaan yang tidak direkodkan bacaan di mana bagi premis Defendan Pertama peratusan ralat penggunaan adalah sebanyak -25.48%, manakala bagi premis Defendan Kedua peratusan ralat unit yang tidak direkodkan pembacaannya adalah -59.98%. [34] Kedua-dua Defendan di dalam mempertikaikan dan dalam usaha mereka untuk mematahkan penyataan seksyen 38(4) Akta yang dikeluarkan Plaintif telah semata-mata bergantung kepada hujahan bahawa Plaintif telah cuba membuktikan keberhutangan kedua-dua Defendan atas kerugian yang dialaminya akibat penggunaan bekalan elektik yang tidak direkodkan pembacaannya bersandarkan kepada seorang saksi sahaja iaitu SP4 yang merupakan pegawai kewangan Plaintif yang yang bertanggungjawab membuat pengiraan bil ke belakang bagi tujuan tuntutan pembayaran terhadap kedua-dua Defendan. Peguam kedua-dua Defendan yang bergantung sepenuhnya kepada keputusan Mahkamah Rayuan di dalam kes Sumbang Projeks Sdn Bhd v Tenaga Nasional Berhad [2014] 4 CLJ 323, telah menggunakan pendekatan yang sama di dalam cubaannya mematahkan keterangan prima facie Plaintif menurut seksyen 38(4) Akta. Peguam kedua-dua Defendan telah menghujahkan bahawa keterangan SP4 bukanlah keterangan teknikal seorang yang mempunyai pengetahuan teknikal yang berupaya membuat pengiraan tepat bagi membuat pengiraan bil ke belakang Plaintif. Adalah dihujahkan selanjutnya oleh peguam kedua-dua Defendan bahawa pengiraan yang dibuat oleh SP4 melalui graf-graf di muka surat 83-84 Jilid B (bagi Defendan Pertama mulai tarikh 9.11.2005 ) dan muka surat 87-89, Jilid B (bagi Defendan Kedua mulai tarikh 10.11.2005) berdasarkan penurunan mendadak penggunaan elektrik (sudden and sharp drop electricity consumption) adalah spekulasi dan andaian SP4 semata-mata tanpa pengesahan mana-mana keterangan saksi teknikal. [35] Untuk hujahan tersebut, peguam kedua-dua Defendan telah menarik perhatian saya kepada perenggan 52, 53, 54 dan 55 penghakiman Mahkamah Rayuan di dalam kes Sumbang Projeks. Pembacaan saya atas perenggan-perenggan tersebut adalah bahawa Mahkamah Rayuan di dalam kes Sumbang Projeks itu telah menolak keterangan pengiraan bil ke belakang yang dibuat oleh SP3 di dalam kes itu berdasarkan penurunan mendadak penggunaan elektrik walaupun pengiraannya telah disahkan oleh tiga pegawai kanannya, tanpa keterangan ketiga-tiga pegawai kanannya, maka ketepatan pengiraan yang dibuat oleh SP3 adalah tanpa sokongan. Dengan yang demikian pengiraan dan cara pengiraan yang dibuat oleh SP3 adalah semata-mata andaian (a mere conjecture) di pihaknya dan timbul keraguan yang serius akan ketepatannya. Untuk tujuan pengiraan bil ke belakang ini, Mahkamah Rayuan telah meletakkan ke atas bahu Plaintif untuk mengemukakan kaedah yang ketara, lebih dipercayai dan pengiraan saintifik daripada andaian semata-mata berdasarkan kepada beberapa graf perbandingan (a more tangible, reliable and scientific method of calculation than a mere assumption based on some comparative graphs) seperti yang telah dibuat oleh SP3 di dalam kes itu. [36] Berbalik kepada kes di hadapan mahkamah ini, bagaimanakah pengiraan bil kebelakang di dalam kedua-dua guaman ini dibuat oleh Plaintif? Untuk itu, saya telah meneliti keterangan SP4. SP4 di dalam keterangannya memberitahu bahawa bagi akaun kedua-dua Defendan menunjukkan penurunan peggunaan yang mendadak bermula selepas 5.10.2005. SP4 dalam keterangannya lagi menyatakan bahawa selepas tarikh 5.10.2005 terdapat penurunan dalam penggunaan kWh yang konsisten di mana penggunaan kWh tidak meningkat ke tahap penggunaan kWh sebelum 5.10.2005. Oleh itu, tarikh mula pengiraan kebelakang kehilangan hasil TNB bermula pada bil 10.11.2005. Menurut SP4 lagi, bagi Defendan Pertama jumlah perbezaan di antara jumlah yang telah dibilkan dan jumlah bil sebenar adalah sebanyak RM 496,682.28. Apabila ditambah dengan kos operasi pemeriksaan Plaintif sebanyak RM1,000.00 jumlah tertunggak yang masih terhutang oleh Defendan Pertama kepada Plaintif adalah sebanyak RM497,682.28. Manakala, bagi Defendan Kedua pula, jumlah perbezaan di antara jumlah yang telah dibilkan dan jumlah bil sebenar adalah sebanyak RM1,131.812.95 dan apabila ditambah dengan kos operasi pemeriksaan Plaintif sebanyak RM1,000.00, jumlah tertunggak yang masih terhutang oleh Defendan Kedua kepada Plaintif adalah sebanyak RM1,132,812.95. [37] Namun begitu perlu dinyatakan di sini bahawa keterangan SP4 mengenai pengiraan jumlah bil belakang tidak berhenti setakat melihat trend penurunan mendadak yang bermula di premis kedua-dua mulai 5.10.2005 tetapi apa yang telah dilakukan juga oleh SP4 adalah mengkaji juga trend penggunaan bulanan sebelum 5.10.2005 untuk tempoh empat (4) tahun bersamaan bil pengunaan sepanjang 48 bulan mulai bil 3 Mei 2002 sehingga bil 5 Oktober 2005. SP4 telah mendapati bahawa dalam tempoh tersebut penggunaan elektrik di kedua-dua premis adalah konsisten sehingga bil 5 Oktober 2005. Penurunan mendadak telah bermula pada 5.10.2005, maka dengan itu pengeluaran bil ke belakang bagi penggunaan elektrik yang tidak direkodkan bacaannya bagi pengiraan bil bulanan November 2005 yakni bermula 9.11.2005 sehingga bagi kedua-dua premis. Pengiraan bil ke belakang bagi premis kedua-dua Defendan adalah untuk bil November 2005 sehinggalah bil 22.5. 2006 bagi Defendan Pertama dan 5.6.2006 bagi Defendan Kedua iaitu apabila meter dan pepasangannya diperbetulkan dan diganti selepas pemeriksaan dibuat pada 22 dan 23 Mei 2006. SP4 di dalam keterangannya lagi, bagi tujuan pengeluaran ke belakang untuk tempoh-tempoh tersebut, kaedah yang telah digunakan oleh SP4 adalah dengan menggunakan peratusan ralat yang telah didapati oleh beliau dari pengiraan peratusan ralat yang telah dibuat oleh SP3 iaitu bagi Defendan Pertama sebanyak -25.48% dan Defendan Kedua -59.98%. Dengan peratusan ralat yang telah ditentukan oleh SP3 bagi kedua-dua premis. SP4 telah kemudiannya menentukan jumlah kWh (peak), kWh (off peak) dan kW yang sebenar bagi bulan-bulan yang terpakai yang mana beliau akan menentukan jumlah sebenar 100% penggunaan elektrik kedua-dua Defendan di dalam jangka masa tarikh mula dan tarikh akhir pengiraan di atas. Di dalam perkara ini, menurut SP4 lagi ralat yang telah ditemui untuk meter Plaintif bagi akaun Defendan Pertama adalah sebanyak -25.48%. Ini bermaksud bahawa meter tersebut hanya merekodkan 74.52% elektrik yang telah dibekalkan kepada Defendan Pertama. Oleh itu, bil elektrik yang dikeluarkan oleh TNB tidak akan menunjukkan penggunaan elektrik yang sebenar Defendan Pertama. Begitu juga dengan meter di premis Defendan Kedua menunjukkan bahawa ralat tertinggi sebanyak -59.98%, ini bermaksud bahawa meter Plaintif hanya merekodkan sebanyak 40.02% elektrik yang telah dibekalkan kepada Defendan Kedua. Oleh itu, bil elektrik Defendan Kedua juga tidak menunjukkan penggunaan sebenar elektrik sebenar di premis Defendan Kedua. [38] Setelah mendapat jumlah sebenar penggunaan elektrik bulanan, barulah SP4 menentukan jumlah terkurang bil dengan menolak jumlah kWh (peak), kWh (off peak) dan kW yang telah terkurang bil didarab dengan tarif masing-masing. Di dalam hal ini, tarif bagi kWh (peak), kWh (off peak) dan kW kedua-dua Defendan adalah 0.208, 0.128 dan 21.70 masing-masing. Jumlah ketiga-tiga kWh (peak), kWh (off peak) dan kW bagi tiap-tiap bulan yang berkenaan ini kemudiannya dijumlahkan untuk mendapat jumlah terkurang bil setiap bulan tersebut. Setelah jumlah terkurang bil setiap bulan telah didapati, jumlah-jumlah ini akan kemudiannya dijumlah untuk mendapat jumlah besar kehilangan hasil Plaintif bagi bulan-bulan atau tempoh tersebut. [39] Perlu dinyatakan di sini bahawa keterangan SP4 di hadapan Mahkamah langsung tidak dapat disangkal oleh kedua-dua Defendan. Begitu juga dengan keterangan SP3. Keterangan SP3 di dalam memperolehi peratusan ralat dengan penggunaan alat PWS 1.3 untuk ujian kejituan meter dan juga membuat pengiraan peratusan ralat dengan menggunakan bacaan-bacaan atas ujian-ujian perbandingan arus tidak langsung dapat disangkal oleh kedua-dua Defendan. Malahan semasa SP3 di soal balas oleh peguam kedua-dua Defendan, peguam kedua-dua Defendan telah cuba mempertikaikan Ulasan Teknikal SP3 di muka surat 78, Jilid B berkenaan ketepatan ujian kejituan meter menggunakan alat PWS 1.3. SP3 telah memberitahu bahawa PWS 1.3 berupaya mengira bacaan arus dan seterusnya membuat pengiraan pengujian ketepatan meter. Malahan untuk melihat samada pembacaan peratusan ralat melalui alat PWS 1.3 tepat atau tidak, SP3 telah diminta oleh peguam untuk menunjukkan bagaimana pengiraan peratusan ralat boleh di buat berdasarkan bacaan-bacaan arus yang telah diambil dengan Amptong semasa pemeriksaan dijalankan. Dengan bacaan arus yang ada, SP3 telah membuat pengiraan bagi mendapatkan peratusan ralat seperti berikut: Bacaan sebenar R : 1.14 A B : 1.46 A Bacaan direkodkan meter. R : 1.13 A B : 0.23 A = 2.03 = 0.795 % error = 0.795 – 2.03 x 100% 2.03 = -60.837% [41] SP3 juga telah memberitahu bahawa peratusan ralat akan berbeza sedikit dalam titik perpuluhan berbanding dengan menggunakan alat PWS 1.3 kerana bacaan arus yang menggunakan Amptong adalah dalam Amp. [42] Dengan keterangan teknikal yang menyeluruh dan tepat, maka di dalam hal ini, saya dengan hormatnya bersependapat dengan peguam Plaintif bahawa kes Sumbang Projeks hendaklah dibezakan dengan kes di hadapan saya ini. Adalah menjadi dapatan saya bahawa ujian-ujian perbandingan arus yang pengiraannya telah diterangkan dengan terperinci oleh SP3 seorang pegawai teknikal yang mahir dalam perkara-perkara elektrik dengan menggunakan satu kaedah dan formula pengiraan teknikal yang nyata dan menyeluruh. SP4 pula, di dalam membuat pengiraan bil ke belakang bagi tenaga elektrik yang tidak direkodkan penggunaannya atas pengusikan kepada meter/pepasangan meter telah membuat pengiraan dengan melihat trend penggunaan elektrik konsisten selama 48 bulan sebelum penurunan mendadak yang didapati bermula pada 5.10.2005 dan kemudian melihat pula trend penggunaan selama tempoh selepas 5.10.2005 sehingga tarikh pemeriksaan yang dijalankan di premis kedua-dua Defendan di mana selepas pemeriksaan penggantian kepada pepasangan meter dibuat. Selepas melihat trend-trend sedemikian, SP4 telah mengira penggunaan Kwh peak dan off peak. Pengiraan bil ke belakang yang dibuat oleh SP4 tidak semata-mata berdasarkan sudden drop tetapi juga berdasarkan peratusan ralat yang telahpun dibuat oleh SP3. Malahan di dalam kes ini, peratusan ralat akan menggambarkan jumlah yang tepat penggunaan yang tidak direkodkan. Pengiraan SP4 pada keseluruhannya amat berbeza dari cara pengiraan cara oleh saksi SP3 di dalam kes Sumbang Projeks. [43] Perlu juga dinyatakan di sini, peguam kedua-dua Defendan di dalam cubaannya mempertikai pengiraan bil ke belakang Plaintif dengan bersandar kepada apa yang telah diputuskan di dalam kes Sumbang Projeks dengan mempertikai bil kebelakang berdasarkan penurunan penggunaan mendadak. Selain daripada itu, peguam kedua-dua Defendan tidak langsung mempertikaikan bagaimana pengiraan yang telah dibuat oleh SP3 dan SP4 dan tidak juga menyangkal pengiraan-pengiraan tersebut sehingga pengeluaran bil-bil ke belakang. Bagi saya, keterangan-keterangan saksi SP3 menerusi keterangan dokumentar (Borang Pemeriksaan LPC bertarikh 22.5.2006 di muka surat 27-32, Jilid B dan Borang Pemeriksaan LPC bertarikh 23.5.2006 di muka surat 57-62, Jilid B) yang telah memperolehi peratusan ralat penggunaan dan SP4 berkaitan bagaimana bil ke belakang itu telah dibuatnya dengan menggunakan peratusan ralat menerusi keterangan dokumentar (“Meter Data” LB Aluminium Sdn Bhd di 79, Jilid B; “Meters Data” Rank Metal Sdn Bhd di muka surat 80, Jilid B; “Register Reading History” LB Aluminium Sdn Bhd di muka surat 81-84, Jilid B; “Register Reading History” Rank Metal Sdn Bhd di mukasurat 85-86, Jilid B; Graf-graf Penggunaan Elektrik oleh LB Aluminium Sdn Bhd di muka surat 87-89, Jilid B; Jadual Pengiraan Kebelakang TNB (LB Aluminium Sdn Bhd) di muka surat 90-91, Jilid B dan Jadual Pengiraan Kebelakang TNB (Rank Metal Sdn Bhd) di muka surat 92-94, Jilid B) adalah keterangan prima facie bagi pembayaran tertunggak yang harus dibayar oleh pengguna akibat kerugian hasil bagi kesalahan di bawah seksyen 37(1) Akta Bekalan Elektrik, 1990. Oleh kerana tiada keterangan bercanggah yang dikemukakan bagi bil ke belakang, maka keterangan SP3 dan SP4 adalah keterangan prima facie bagi pembayaran tertunggak yang kena dibayar oleh kedua-dua Defendan seperti yang diperuntukkan dalam seksyen 38(4)dan (5) Akta tersebut. Di dalam hal yang demikian adalah menjadi dapatan saya bahawa dengan ini kedua-dua Defendan gagal mematahkan atau/dan menyangkal keterangan prima facie menurut seksyen 38(4) Akta yang dikemukakan oleh Plaintif. [44] Atas alasan-alasan di atas, jawapan kepada isu (ii) adalah positif dan jawapan kepada isu (iii) pula adalah dijawab dengan negatif. Defendan Pertama dan Defendan Kedua adalah dengan ini bertanggungan terhadap kerugian/ kehilangan hasil Plaintif atas penggunaan-penggunaan elektrik yang tidak direkodkan pembacaannya. Isu (iv) dan (v) (iv) samada Plaintif adalah diestopkan daripada membuat tuntutan-tuntutan ini memandangkan Defendan Pertama dan Defendan Kedua telahpun menjelaskan bil-bil yang dikeluarkan oleh Plaintif bagi penggunaan elektrik di premis-premis mereka. (v) samada Plaintif adalah dihalang oleh Peraturan 11, Peraturan-Peraturan Bekalan Pemegang Lesen 1990 (Peraturan 11) daripada menuntut jumlah-jumlah kerugian/ kehilangan hasil tersebut kerana Peraturan 11 hanya membenarkan pelarasan ke belakang tidak melebihi tiga bulan daripada tarikh Defendan (surat Plaintif kepada Defendan bertarikh 9.11.2006) diberitahu mengenai caj terkurang. [45] Isu estopel dan perlanggaran Peraturan 11 yang dibangkitkan oleh peguam kedua-dua Defendan adalah tidak berasas. Hak untuk menuntut kerugian hasil atau kehilangan hasil adalah hak statutori yang diperuntukkan di bawah Akta. Di dalam kedua-dua guaman ini, apa yang jelas, tuntutan Plaintif terhadap Defendan Pertama dan Defendan Kedua adalah untuk kerugian hasil yang terbit daripada pengusikan meter yang mengakibatkan penggunaan sebenar elektrik tidak direkodkan adalah tindakan Plaintif di dalam menguatkuasakan haknya yang sah di sisi undang-undang. [46] Kedua-dua Defendan di dalam cubaan menyangkal tuntutan-tuntutan Plaintif telah bergantung kepada keterangan-keterangan SD1, SD2 dan SD3. Pada dasarnya keterangan ketiga-tiga saksi kedua-dua Defendan ini adalah penafian semata-mata bahawa berlakunya pengusikan meter/pepasangan meter di kedua-dua premis tersebut. SD1 kini adalah Pengarah Syarikat Defendan Pertama dan merupakan Pengarah Eksekutif Defendan Kedua. Pada tahun 2005 dan 2006 beliau adalah Non Executive Director dan Pengurus Besar kedua-dua Defendan. SD1 cuba mempertahankan bahawa kononnya sebagai syarikat yang disenaraikan di Bursa Malaysia, mereka tidak akan melibatkan syarikat di dalam aktiviti atau tindakan pengusikan meter sebegini kerana syarikat mempunyai reputasi untuk dilindungi. Namun begitu, SD1 di dalam keterangannya juga mengakui bahawa kedua-dua Defendan telahpun didapati bersalah dan disabitkan atas pertuduhan-pertuduhan jenayah di bawah seksyen 37(3) Akta di Mahkamah Sesyen Kajang bersangkutan dengan pengusikan meter/pepasangan meter hasil dari pemeriksaan yang dilakukan pada 22 dan 23 Mei 2006 tersebut. Kedua-dua Defendan telah merayu ke Mahkamah Tinggi terhadap keputusan Hakim Mahkamah Sesyen Kajang dan rayuan-rayuan masih belum didengar lagi. [47] SD1 juga cuba menegakkan pengataan bahawa aduan mengenai kerosakan meter telah dibuat oleh Defendan Pertama bermula September 2005 dengan merujuk emel Puan Khodijah dan surat SD2. Perkara-perkara ini telahpun dibuat dapatannya oleh saya di awal penghakiman tadi dan tiada keperluan untuk mengulanginya. [48] Berkenaan dengan keterangan SD2 pula, kononnya beliau telah membuat aduan-aduan kepada Plaintif mengenai kerosakan meter. Pengataan SD2 ini adalah pengataan kosong semata-mata dan beliau telah memberitahu Mahkamah bahawa sememangnya tiada apa-apa dokumen pun menunjukkan bahawa ada aduan dibuat kepada Plaintif mengenai kerosakan meter. Awal tadi saya telah membuat dapatan mengenai hal ini, saya ulangi bahawa penyataan adanya meter rosak dan laporan di mukasurat 445 adalah sesuatu yang afterthought. Maka keterangan SD2 tidak dapat membantu kedua-dua Defendan. [49] Keterangan SD3 pula adalah keterangan yang tidak boleh dipertimbangkan langsung. Kedua-dua Defendan di dalam penyataan pembelaannya telah memplidkan pernyataan bahawa semasa Suruhanjaya Tenaga dan Plaintif menjalankan pemeriksaan, pemeriksaan telah dijalankan secara sulit tanpa kehadiran pekerja atau wakilnya. Pernyataan kedua-dua Defendan yang pemeriksaan dibuat oleh Plaintif dibuat secara sulit tanpa kehadiran wakil/pekerja dan kononnya wakil kedua-dua Defendan tidak dibenarkan hadir semasa pemeriksaan telah saya buat dapatan ke atasnya di perenggan 30 penghakiman ini. Saya tekankan sekali lagi di sini bahawa pernyataan kedua-dua Defendan yang pemeriksaan telah dijalankan oleh Suruhanjaya Tenaga dan Plaintif secara sulit tanpa wakil/pekerja kedua-dua Defendan atau wakil/pekerja kedua-dua Defendan tidak dibenarkan hadir semasa pemeriksaan dijalankan adalah satu pembohongan sangat ketara di pihak kedua-dua Defendan. Kesimpulan [50] Berdasarkan keterangan-keterangan yang ada di hadapan saya dan setelah membuat penelitian dan pertimbangan kepada keseluruhan keterangan, atas imbangan kebarangkalian, saya berpuashati bahawa Plaintif telah berjaya membuktikan tuntutan-tuntutannya terhadap Defendan Pertama dan Defendan Kedua. Maka dengan ini, tuntutan Plaintif terhadap Defendan Pertama dan Defendan Kedua dibenarkan dengan kos. Faedah pada kadar 5% setahun diberikan atas jumlah penghakiman dari tarikh pemfailan writ sehingga tarikh penyelesaian penuh. Kos kedua-dua Guaman [49] Setelah mendengar hujahan ringkas daripada kedua pihak mengenai kos, saya telah memerintahkan kedua-dua Defendan membayar kepada Plaintif kos sebanyak RM75,000.00 bagi kedua-dua guaman di hadapan saya ini. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi NCVC 13 Shah Alam Selangor Darul Ehsan Bertarikh 04hb Disember 2014 Peguam Plaintif - Tetuan Shook Lin & Bok Encik David Dinesh Mathew Encik Hadi Mukhlis Bin Khairulmaini Peguam Defendan - Tetuan Soo Thien Ming & Nashrah Cik Lua Ai Siew Cik Chin Yan Leng 43

Tika 2.6.0

22-299-2009

PLAINTIF Tenaga Nasional Berhad DEFENDAN Rank Metal Sdn Bhd

04/12/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e17e931b-9f94-4036-8109-1a6c5e71e576&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. MT4- 22-299-2009 Antara Tenaga Nasional Berhad ... Plaintif Dan Rank Metal Sdn Bhd … Defendan (Disatukan dan didengar bersama dengan Guaman Sivil No: MT4-22-300-2009 menurut Perintah Bertarikh 15 Oktober 2014) Antara Tenaga Nasional Berhad ... Plaintif Dan LB Alumunium Manufacturing Sdn Bhd … Defendan ALASAN PENGHAKIMAN (Selepas perbicaraan penuh) [1] Di hadapan saya terdapat dua guaman sivil yang telah disatukan di bawah Perintah Mahkamah bertarikh 15.10.2014. Guaman-guaman sivil tersebut adalah Guaman Sivil No. MT4-22-299-2009 (Guaman 299) dan Guaman Sivil No.MT4-22-300-2009 (Guaman 300). Atas perintah penyatuan tersebut, kedua-dua guaman telahpun dibicarakan bersama-sama. [2] Kedua-dua guaman ini melibatkan Plaintif yang sama iaitu Tenaga Nasional Berhad, yang merupakan syarikat yang menjana dan membekal tenaga elektrik kepada pengguna di Malaysia. Defendan di dalam Guaman 299 adalah Rank Metal Sdn. Bhd, manakala Defendan di dalam Guaman 300 adalah LB Alumunium Manufacturing Sdn. Bhd. Rank Metal Sdn Bhd adalah anak syarikat atau subsidiari kepada LB Alumunium Sdn Bhd, yang kini dikenali sebagai LB Alumunium Bhd. [3] Bagi maksud kemudahan rujukan pihak-pihak di dalam guaman 299 dan guaman 300, Rank Metal Sdn. Bhd. akan dirujuk sebagai Defendan Pertama, manakala LB Alumunium Bhd. akan dirujuk sebagai Defendan Kedua. Di samping itu, guaman 299 dan guaman 300 adalah dirujuk sebagai kedua-dua guaman. Adakalanya pula Defendan Pertama dan Defendan Kedua akan dirujuk sebagai kedua-dua Defendan. [4] Plaintif telah menuntut terhadap Defendan Pertama dan Defendan Kedua jumlah terhutang atas kerugian/kehilangan hasil yang dialaminya (loss of revenue) bagi penggunaan bekalan elektrik yang telah tidak direkodkan dengan tepat dan benar di premis-premis perniagaan Defendan Pertama dan Defendan Kedua. Di dalam Penyata-penyata tuntutannya, Plaintif telah menuntut terhadap Defendan Pertama untuk pembayaran wang berjumlah RM497,688.28 bagi kerugian atau kehilangan hasil termasuk kos perbelanjaan yang ditanggung oleh Plaintif yang timbul daripada pengusikan terhadap pepasangan meter di premis Defendan Pertama, Manakala terhadap Defendan Kedua pula, Plaintif telah menuntut pembayaran wang berjumlah RM1,132,312.915 atas alasan yang sama. Plaintif juga menuntut faedah pada kadar 8% setahun ke atas kedua-dua jumlah tersebut dari tarikh penghakiman sehingga penyelesaian sepenuhnya beserta kos tindakan. [5] Tuntutan Plaintif terhadap kedua-dua Defendan adalah bersandarkan kepada seksyen 38 Akta Bekalan Elektrik 1990 (Akta). Seksyen 38 Akta antara lain memperuntukkan berikut: 38. (1) Jika mana-mana orang yang diambil kerja oleh pemegang lesen mendapat keterangan di mana-mana premis yang pada pendapatnya membuktikan bahawa suatu kesalahan telah dilakukan di bawah subseksyen 37(1), (3) atau (14), pemegang lesen atau mana-mana orang yang diberi kuasa sewajarnya oleh pemegang lesen boleh, dengan memberi notis tidak kurang daripada dua puluh empat jam, dalam apa-apa bentuk sebagaimana yang ditetapkan, menyebabkan bekalan elektrik dipotong daripada premis tersebut. (1A)… (2)… (2A) … (3) Pemegang lesen boleh menghendaki pengguna membayar kepadanya apa-apa kerugian hasil yang disebabkan oleh kesalahan yang dilakukan di bawah subseksyen 37(1), (3) dan (14) dan apa-apa perbelanjaan yang dilakukan oleh pemegang lesen di bawah seksyen ini termasuk perbelanjaan yang dilakukan berkenaan dengan penyambungan semula bekalan elektrik. (4) Suatu pernyataan bertulis oleh seseorang pekerja pemegang lesen yang diperakui dengan sempurnanya oleh pemegang lesen atau mana-mana orang yang diberi kuasa oleh pemegang lesen, yang menyatakan— (a) amaun kerugian hasil atau perbelanjaan yang dilakukan oleh pemegang lesen; dan (b) orang yang bertanggungan bagi pembayarannya, hendaklah menjadi keterangan prima facie mengenai pembayaran yang kena dibuat oleh pengguna di bawah subseksyen (3). (5) Amaun yang dinyatakan dalam pernyataan bertulis itu hendaklah, dalam tempoh yang dinyatakan dalam pernyataan itu, menjadi genap masa dan kena dibayar kepada pemegang lesen dan jika tidak dibayar, amaun itu hendaklah didapatkan kembali melalui tindakan sivil di mahkamah. [6] Fakta kes adalah seperti berikut: 6.1 Defendan Pertama adalah sebuah syarikat yang ditubuhkan di bawah Akta Syarikat 1965 yang mempunyai alamat berdaftar di No. 275, (Tingkat 1) Jalan Haruan 1, Oakland Industrial Park, 70200 Negeri Sembilan. Defendan Kedua yang juga merupakan syarikat induk Defendan Pertama mempunyai alamat berdaftar yang sama dengan Defendan Pertama. 6.2 Defendan Pertama dan Defendan Kedua menjalankan perniagaan mereka di premis yang beralamat Lot 11, Jalan Perusahaan Beranang, 43700 Beranang, Semenyih, Selangor. (Kedua-dua premis tersebut). 6.3 Adalah fakta yang tidak dipertikaikan bahawa Defendan Pertama dan Defendan Kedua adalah syarikat yang pengilang, barangan-barangan yang berasaskan alumunium extrusion dan ceiling metal tee products. Di samping menjalankan aktiviti-aktiviti pengilangan barang-barang, kedua-dua Defendan juga menjalankan urusniaga barangan-barangan tersebut serta memasarkan produk-produknya. 6.4 Adalah fakta yang tidak dipertikaikan juga bahawa Defendan Kedua adalah sebuah syarikat yang disenaraikan di Bursa Malaysia. 6.5 Bagi operasi pengilangan dan perniagaan mereka, kedua-dua Defendan telah memohon Plaintif untuk membekalkan tenaga elektrik ke premis-premis mereka. Permohonan kedua-dua Defendan untuk pembekalan tenaga elektrik ke premis-premis kedua-dua Defendan telah dipersetujui Plaintif. Bagi merekodkan penggunaan tenaga elektrik di kedua-dua premis tersebut, Plaintif telah memasang meter elektrik di premis-premis Defendan Pertama dan Defendan Kedua di mana nombor akaun Defendan Pertama adalah 01800095496900, manakala nombor akaun Defendan Kedua pula adalah 01800077410810. 6.6 Plaintif melalui pekerjanya telah menjalankan pemeriksaan meter rutin/berkala di premis Defendan pada April 2006 dan mengesyaki terdapat pengusikan meter/pepasangan meter di premis Defendan Pertama. Susulan daripada itu, Plaintif telah menjalankan pemeriksaan meter di premis perniagaan Defendan Pertama dan Defendan Kedua, masing- masing pada 22.5.2006 dan 23.5.2006. Sewaktu pemeriksaan tersebut, Plaintif telah mendapati bahawa sememangnya terdapat pengusikan atau kejanggalan pada pepasangan meter-meter elektrik di kedua-dua premis tersebut. Pengusikan atau kejanggalan terhadap pepasangan meter-meter tersebut telah menyebabkan meter-meter itu telah tidak merekodkan penggunaaan sebenar elektrik di premis-premis tersebut. Plaintif dengan itu telah mengalami kerugian atau kehilangan hasil atas tindakan pengusikan yang meyebabkan penggunaan bekalan elektrik sebenar tidak direkodkan pembacaannya di meter-meter yang telah dipasang di premis kedua-dua Defendan tersebut. 6.7 Plaintif yang bersandarkan kepada seksyen 38 Akta telah membuat pengiraan semula atas bekalan eletrik yang tidak direkodkan penggunaannya di premis kedua-dua Defendan kemudiannya telah mengeluarkan penyataan bertulis menurut seksyen 38(4) dan menuntut supaya Defendan Pertama dan Defendan Kedua membayar kepada Plaintif kerugian hasil berserta kos-kos perbelanjaan yang dialaminya akibat dari pengusikan atau kejanggalan pada pepasangan meter-meter yang dipasang di premis kedua-dua Defendan. 6.8 Walaupun beberapa peringatan/notis telah dikeluarkan supaya kedua-dua Defendan menjelaskan jumlah terhutang tesebut, namun kedua-dua Defendan telah gagal berbuat demikian, justeru kedua-dua guaman sivil ini difailkan oleh Plaintif. 6.9 Defendan Pertama dan Defendan Kedua menafikan sekeras-kerasnya tanggungan mereka ke atas jumlah-jumlah yang dikatakan terhutang kepada Plaintif. Di dalam mempertikaikan tuntutan Plaintif tersebut, secara asasnya di dalam penyata-penyata pembelaan mereka, kedua-dua Defendan telah memplidkan pembelaan-pembelaan berikut: i) menafikan terdapatnya pengusikan kepada pepasangan meter-meter elektrik di kedua-dua premis dan menegaskan bahawa meter-meter elektrik tersebut adalah di dalam kawalan Plaintif kerana meter-meter itu terletak di dalam bilik yang dikunci oleh Plaintif, maka Defendan Pertama dan Defendan Kedua tidak mempunyai akses kepada meter-meter elektrik yang dipasang Plaintif di kedua-dua premis tersebut. ii) meter-meter elektrik yang dipasang sememangnya gagal berfungsi dengan baik kerana kegagalan penyelenggaraan di pihak Plaintif di mana Defendan Pertama mendakwa bahawa aduan mengenai kegagalan meter untuk berfungsi dengan baik telah dibuat kepada Plaintif sejak bulan September 2005 lagi sebelum pemeriksaan yang dibuat ke atas premis Defendan Pertama. Kedua-dua Defendan mendakwa bahawa pemeriksaan yang dibuat oleh Plaintif ke atas meter-meter elektrik tersebut adalah susulan daripada aduan Defendan tersebut. iii) pemeriksaan ke atas meter telah dilakukan secara sulit oleh Plaintif tanpa kehadiran wakil atau pekerja kedua-dua Defendan. iv) Plaintif adalah diestop dari membuat tuntutan kerana bayaran terhadap bil-bil yang dikeluarkan oleh Plaintif atas penggunaan elektrik kedua-dua Defendan telahpun dijelaskan oleh Defendan Pertama dan Defendan Kedua. v) Plaintif tidak berhak untuk membuat tuntutan-tuntutan kebelakang yang melebihi tempoh tiga bulan kerana Peraturan 11 Peraturan-Peraturan Bekalan Pemegang Lesen 1990 hanya membenarkan pelarasan ke belakang untuk tempoh tidak melebihi tiga bulan daripada tarikh Defendan diberitahu mengenai caj terkurang. Di dalam kes ini surat Plaintif kepada Defendan mengenai perkara ini bertarikh 9.11.2006. vi) pengiraan atau perhitungan kebelakang oleh Plaintif bagi penggunaan bekalan tenaga elektrik yang gagal direkodkan bacaan sebanyak -25.48% bagi Defendan Pertama berjumlah RM497,682.28 termasuk kos perbelanjaan dan bagi Defendan Kedua sebanyak -59.98% yang berjumlah RM1,132,812.95 termasuk kos perbelanjaan adalah dipertikaikan. [7] Hak statutori Plaintif di bawah seksyen 38 Akta iaitu untuk menuntut terhadap pelanggannya amaun kerugian atau kehilangan hasil bagi penggunaan bekalan elektrik yang tidak direkodkan penggunaan elektrik sebenar akibat kesalahan-kesalahan yang dilakukan di bawah subseksyen 37(1), (3) dan (14) Akta adalah jelas dan mantap. Terdapat banyak nas undang-undang yang memutuskan mengenai hak statutori Plaintif ini. (Sila lihat: i. Claybricks & Tiles Sdn Bhd v. Tenaga Nasional Bhd [2007] 1 MLJ 217. ii. WRP Asia Pacific Sdn Bhd v Tenaga Nasional [2012] 4 CLJ 478. iii. Tan Yeong Kim Lwn Tenaga nasional Berhad [2000] 8 CLJ 629.) [8] Undang-undang juga adalah jitu bahawa bagi membolehkan Plaintif berjaya menuntut kerugian hasil menurut seksyen 38 Akta ini, Plaintif pertamanya mestilah membuktikan atas imbangan kebarangkalian berlakunya kesalahan di bawah seksyen 37(1), (3) dan (14) Akta. Di dalam kedua-dua guaman ini, nyata bahawa Plaintif telah menuntut kerugian atau kehilangan hasil atas pengusikan (tampering) meter elektrik yang merupakan suatu kesalahan di bawah seksyen 37(1) Akta. [9] Pihak-pihak telah mengemukakan sebanyak sembilan isu untuk ditentukan oleh saya tetapi pada pandangan saya isu-isu tersebut boleh disimpulkan seperti berikut: (i) samada terdapat pengusikan pada pepasangan meter di premis-premis perniagaan Defendan Pertama dan Defendan Kedua. (ii) jika jawapan (i) adalah positif, samada Defendan Pertama dan Defendan Kedua bertanggungan untuk membayar kerugian dialami oleh Plaintif atas kehilangan hasil penggunaan bekalan elektrik yang tidak direkodkan sebagaimana tuntutan Plaintif melalui penyataan bertulisnya menurut seksyen 38(4) dan (5) Akta. (iii) samada keterangan prima facie Plaintif menurut seksyen 38(4) berjaya disangkal oleh kedua-dua Defendan. (iv) samada Plaintif adalah diestopkan daripada membuat tuntutan-tuntutan ini memandangkan Defendan Pertama dan Defendan Kedua telahpun menjelaskan bil-bil yang dikeluarkan oleh Plaintif bagi penggunaan elektrik di premis-premis mereka. (v) samada Plaintif adalah dihalang oleh Peraturan 11, Peraturan-Peraturan Bekalan Pemegang Lesen 1990 (Peraturan 11) daripada menuntut jumlah-jumlah kerugian/ kehilangan hasil tersebut kerana Peraturan 11 hanya membenarkan pelarasan ke belakang tidak melebihi tiga bulan daripada tarikh Defendan (surat Plaintif kepada Defendan bertarikh 9.11.2006) diberitahu mengenai caj terkurang. [10] Bagi membuktikan tuntutannya, Plaintif telah memanggil lima (5) orang saksi iaitu: 1. SP1 - Ahmad Zamrun bin Putih, yang merupakan juruteknik Plaintif yang menjalankan pemeriksaan di premis Defendan Pertama dan Defendan Kedua. 2. SP2 - Zulkiflee bin Umar, pegawai Unit Penguatkuasaan Suruhanjaya Tenaga yang mengetuai pemeriksaan yang dijalankan Suruhjaya Tenaga dan Plaintif. 3. SP3 - Md. Nizam bin Samsuri, yang merupakan seorang jurutera Plaintif yang turut serta di dalam pemeriksaan dan beliau adalah jurutera yang telah memperolehi peratusan ralat penggunaan bekalan elektrik yang tidak direkodkan bacaannya dengan membuat ujian kejituan jangka dan membuat pengiraan perbandingan arus. 4. SP4 - Ghazali bin Nordin yang membuat pengeluaran bil ke belakang bagi jumlah yang tidak direkodkan bacaan berdasarkan pengiraan peratusan ralat yang diperolehi oleh SP3. 5. SP5 - Ahmad Tazmin bin Mohd Nor Pegawai Penyiasat Suruhanjaya Tenaga yang bertanggungjawab kepada barang-barang yang disita di premis kedua-dua Defendan dan menjalankan penyiasatan kes kesalahan jenayah di bawah seksyen 37(3)(e) Akta di mana Defendan Pertama dan Defendan Kedua telah dituduh di hadapan Mahkamah Sesyen Jenayah Kajang bagi kes yang didaftarkan sebagai 63-7-2012 dan 63-8-2012. [11] Manakala bagi menyangkal tuntutan-tuntutan Plaintif, kedua-dua Defendan pula telah memanggil tiga orang saksi yang berikut: i. SD1 - Yap Chee Woon yang merupakan Pengarah Eksekutif kedua-dua Defendan. ii. SD2 - Ong Kok Leong yang merupakan bekas eksekutif kanan kedua-dua Defendan. iii. SD3 - Nadarajah a/l Ramasamy yang merupakan bekas penyelia penyelenggaraan (maintenance) kedua-dua Defendan. Isu (i): samada terdapat pengusikan pada pepasangan meter di premis-premis perniagaan Defendan Pertama dan Defendan Kedua. Pemeriksaan kepada pepasangan meter di premis Defendan Pertama (Rank Metal Sdn. Bhd) dan Defendan Kedua (LB Aluminium Bhd) [12] Keterangan berikut telah dikemukakan oleh Plaintif di dalam pemeriksaan yang telah dijalankan ke atas pepasangan meter di premis Defendan Pertama: 12.1 Pada sekitar bulan April 2006, SP1 bersama rakannya bernama Zabidi bin Muhammad telah menjalankan pemeriksaan rutin atau berkala terhadap premis Defendan Pertama. Menurut SP1, pemeriksaan berkala/rutin bersama rakannya itu adalah dijalankan terhadap premis-premis pengguna-pengguna kuasa besar (large power consumers atau LPC). Sesampainya mereka di lokasi di mana meter itu ditempatkan, SP1 telah mendapati bahawa pintu bilik di mana meter itu ditempatkan adalah tidak berkunci. Di samping itu SP1 telah mendapati bahawa sil di kiosk meter tidak ada. Daripada penemuan kejanggalan semasa pemeriksaan rutin atau berkala tersebut, SP1 telah mengesyaki terdapat pengusikan meter elektrik yang dipasang Plaintif di premis Defendan Pertama, namun begitu memandangkan pemeriksaan yang dijalankan tersebut adalah pemeriksaan rutin atau berkala, beliau tidak mempunyai peralatan yang sesuai untuk kerja-kerja pemeriksaan terperinci bagi melaksanakan kerja-kerja pemeriksaan dan pembetulan. SP1 telah memaklumkan kepada SP3 melalui telefon mengenai kejanggalan yang beliau temui dan SP3 telah mengarahkan supaya SP1 meletakkan sil Plaintif di kiosk meter tersebut sebelum meninggalkan premis tersebut. 12.2 Susulan daripada itu, pada 22.5.2006, SP1 bersama pasukan pegawai Plaintif termasuk SP3 dan Unit Penguatkuasaan Suruhanjaya Tenaga yang diketuai oleh SP2 telah pergi ke premis Defendan Pertama. Setibanya mereka di premis Defendan Pertama, pasukan tersebut telah memperkenalkan diri dan dibenarkan masuk ke dalam premis oleh seorang bernama R. Nadarajah (SD3) yang merupakan pekerja Defendan Pertama. SD3 kemudian telah membawa pasukan Plaintif ke bilik di mana meter ditempatkan. 12.3 Menurut SP1 lagi, pasukannya seterusnya telah menjalankan pemeriksaan fizikal ke atas meter. SP1 telah juga menerangkan bahawa pemeriksaan fizikal ini adalah untuk memeriksa samada terdapat petanda kejanggalan pada paparan meter elektrik, sil bit dan maklumat no. sil dan keadaan fizikal pepasangan meter. Hasil pemeriksaan fizikal terhadap pepasangan meter, SP1 telah memberitahu pasukan Plaintif telah menemui kejanggalan-kejanggalan berikut: (i) sil di kiosk meter sememangya tidak ada. Sil yang terdapat pada kiosk meter adalah sil yang telah SP1 letakkan di kiosk meter tersebut semasa membuat pemeriksaan berkala/rutin di premis Defendan Pertama pada bulan April 2005. (ii) pendawaian S1 fasa kuning telah disentuh ke S2 fasa merah pada ‘Test Terminal Block Feeder 1’; dan (iii) pendawaian S1 fasa kuning telah disentuh ke S2 fasa kuning pada ‘Test Terminal Block Feeder 2’. 12.4 Menurut SP1 lagi, pemeriksaan seterusnya telah dijalankan di mana penutup atau jaring kepada meter tersebut telah dibuka bagi merekodkan maklumat-maklumat meter seperti nombor siri meter, buatan meter dan jenis. Pasukan Plaintif telah seterusnya mengambil bacaan arus untuk menentukan samada terdapat apa-apa kejanggalan pada pengukuran tenaga elektrik yang masuk ke meter tersebut. SP1 di dalam keterangannya telah memberitahu bahawa pengubahsuaian pendawaian pada S1 fasa kuning tersebut telah menyebabkan pintasan pada arus di ‘Test Terminal Block’. Ini menyebabkan meter telah tidak dapat merekodkan bacaan sebenar penggunaan elektrik di premis Defendan Pertama. Dengan adanya pintasan pada wayar arus S1 fasa kuning di ‘Test Terminal Block’, pasukan Plaintif telah mengambil bacaan arus yang bermula di ‘Test Terminal Block’ dan bacaan arus di meter. SP1 telah juga memberi keterangan bahawa bagi premis Defendan Pertama bacaan arus dibuat dengan menggunakan alat bernama Clamp on ammeter atau Amptong dan bacaan arus adalah di dalam Ampere (Amp). Bacaan-bacaan yang direkodkan pasukan Plaintif adalah seperti berikut: Feeder 1 Fasa Merah Fasa Kuning Fasa Biru Test Terminal Block 0.745 0.741 0.820 Meter 0.736 0.162 0.822 12.5 Berdasarkan bacaan-bacaan yang diperolehinya, SP3 telah membuat pengiraan peratusan ralat berdasarkan formula berikut: Peratusan ralat Meter) – ) (0.745+0.741+0.822) 2.308 12.6 Pengiraan peratusan ralat SP3 mendapati bahawa ralat yang ketara dalam pembacaan meter bagi akaun Defendan Pertama adalah sebanyak -25.48%. [13] Pasukan Plaintif telah menjalankan pemeriksaan meter/pepasangan meter ke atas premis Defendan Kedua pada keesokan harinya iaitu pada 23.5.2006. SP1 di dalam keterangannya memberitahu mahkamah berikut: 13.1 Pemeriksaan ke atas meter elektrik di premis Defendan Kedua telah dijalankan pada 23.5.2006. Pemeriksaan fizikal oleh pasukan Plaintf telah mendapati bahawa sil pintu pada kiosk dan stiker keselamatan telah koyak. Pemeriksaan terperinci ke atas meter elektrik di premis Defendan Kedua ini, pasukan Plaintif telah menemui kejanggalan di mana terdapatnya ‘bridging’ pada S1 dan S2 fasa biru di OBA dalam kiosk jangka. ‘Bridging’ tersebut telah membuat pintasan sebelum ‘Test Terminal Block’ apabila pendawaian fasa biru di OBA telah diubahsuai di mana pendawaian fasa biru di S1 telah disambung terus ke S2. Menurut SP1 lagi, kewujudan ‘bridging’ memintas arus sebelum ‘Test Terminal Block’ pada S1 dan S2 fasa biru di OBA telah memberi kesan kepada meter yang mana meter tidak dapat merekodkan bacaan sebenar penggunaan elektrik di premis Defendan Kedua. 13.2 Seterusnya pasukan Plaintif telah membuat satu ujian kejituan meter untuk menguji ketepatan meter dengan menggunakan alat bernama Portable Working Standard (PWS 1.3) yang mana peratusan ralat yang terdapat di dalam meter semasa gangguan telah direkodkan. Menurut SP1, ujian kejituan telah dibuat sebanyak tiga kali di mana ralat sebanyak -59.98%, -59.64% dan -59.60% telah direkodkan. Untuk maksud pengiraan bil ke kebelakang yang akan dibuat peratusan ralat tertinggi iaitu -59.98 telah digunakan. 13.3 Seterusnya pasukan Plaintif telah membuat ujian perbandingan bacaan arus sebelum dan selepas OBA di mana bacaan-bacaan arus adalah seperti berikut:- Fasa Merah Fasa Biru Sebelum OBA 1.14A 1.46A Selepas OBA 1.13A 0.23A 13.3 Berdasarkan bacaan yang diperolehi, pasukan Plaintif telah mendapati bahawa pengubahsuaian pada pendawaian fasa biru di OBA telah menyebabkan meter elektrik tidak dapat merekodkan penggunaan tenaga elektrik dengan betul dan ini dapat dilihat daripada perbezaan yang besar antara bacaan arus untuk fasa biru sebelum dan selepas OBA. [14] SP3 yang merupakan pegawai atasan SP1 telah memberi keterangan dan telah menyokong dengan jitunya keterangan-keterangan SP1. Keterangan SP1 dan SP3 ini langsung tidak dapat disangkal oleh peguam kedua-dua Defendan. SP3 juga telah memberi keterangan bahawa daripada bacaan-bacaan yang telah direkodkan oleh SP1 beliau sendiri telah membuat pengiraan peratusan ralat penggunaan bekalan elektrik yang tidak direkodkan. SP3 juga telah membuat laporan polis di muka surat 55,Jilid B bagi pemeriksaan yang dilakukan di premis Defendan Pertama. [15] SP2 yang mengetuai Unit Penguatkuasaan Suruhanjaya Tenaga di dalam pemeriksaan yang dilakukan tersebut telah juga menyokong keterangan SP1 dan SP3 dan memantapkan lagi keterangan yang dikemukakan oleh Plaintif. SP2 di dalam keterangannya di mahkamah telah menyatakan bahawa setelah menemui kejanggalan- kejanggalan pada pepasangan meter dan meter dipremis Defendan Pertama telah juga mengarahkan pasukan Plaintif untuk mengambil semua barang bukti seperti meter, sil bit, sil wayar dan seterusnya menyenaraikan borang rampasan Suruhanjaya Tenaga dan menunjukkan kepada SD3 untuk ditandatangan oleh SD3. Menurut SP2 lagi, selepas SD3 menandatangani borang rampasan tersebut sesalinannya telah diserahkan kepada SD3. Selanjutnya SP2 telah memberitahu mahkamah bahawa bagi pemeriksaan di premis Defendan Kedua, Suruhanjaya Tenaga telah diketuai oleh Encik Zaini bin Abdul Wahab dan menurut SP2 Encik Zaini tidak lagi berkhidmat dengan Suruhanjaya Tenaga. SP2 seterusnya memberitahu bahawa di atas pemeriksaan, penemuan-penemuan kejanggalan dan rampasan yang di premis kedua-dua Defendan, Suruhanjaya Tenaga ada membuat laporan polis. [16] SP5, pegawai penyiasat bagi kesalahan-kesalahan jenayah yang dipertuduh terhadap kedua-dua Defendan telah mengemukakan kesemua barang rampasan yang telah disita dari premis kedua-dua Defendan bagi pemeriksaan yang telah dijalankan pada 22 dan 23 Mei 2005. [17] Keterangan-keterangan saksi-saksi Plaintif yang tidak disangkal bahawa SD3 sememangnya hadir semasa pasukan Plaintif menjalankan pemeriksaan ke atas pepasangan meter-meter yang di premis-premis Defendan Pertama dan Defendan Kedua. [18] Di dalam kedua-dua guaman ini apa yang jelas adalah keterangan-keterangan lisan saksi-saksi Plaintif telah disokong dengan begitu kukuh dengan keterangan-keterangan dokumentar iringan dan semasa (contemprenous) hasil dari pemeriksaan yang telah dijalankan di premis Defendan Pertama. Keterangan-keterangan dokumentar disenaraikan seperti berikut: (a) Borang Pemakluman Semakan Meter Elektrik oleh TNB bertarikh 22.5.2006 (mukasurat 27 – 32, Jilid B) (b) Surat Pemberitahuan Pengambilan Bahan-bahan Bukti bertarikh 22.5.2006 (mukasurat 33 – 35, Jilid B) (c) Gambar-gambar yang diambil semasa pemeriksaan dijalankan di premis Defendan Pertama pada 22.5.2006 (mukasurat 36 – 54, Jilid B) (d) Laporan Polis yang dibuat oleh SP3 pada 22.5.2006 (mukasurat 55, Jilid B) (e) Ulasan Teknikal oleh Plaintif bertarikh 22.5.2006 (mukasurat 56, Jilid B) [19] Keterangan-keterangan dokumentar iringan dan semasa (contempreneous) di dalam pemeriksaan yang telah dijalankan ke atas pepasangan meter-meter di premis Defendan Kedua yang telah dikemukakan oleh Plaintif adalah seperti berikut: (a) Borang Pemakluman Semakan Meter Elektrik oleh TNB bertarikh 23.5.2006 (mukasurat 57 – 62, Jilid B) (b) Gambar-gambar yang diambil semasa pemeriksaan dijalankan di premis Defendan Kedua pada 23.5.2006 (mukasurat 63 – 75, Jilid B) (c) Ulasan Teknikal Plaintif bertarikh 23.5.2006 (di mukasurat 78, Jilid B) (d) Laporan Polis SP2 pada 23.5.2006 (mukasurat 76 – 77, Jilid B) [20] Keterangan Plaintif bahawa berlakunya pengusikan pepasangan meter di premis Defendan Pertama dan Defendan Kedua bukan sahaja dibuktikan oleh keterangan lisan saksi-saksi dan keterangan dokumentar iringan dan semasa tetapi juga dibuktikan dengan barangan fizikal yang diperolehi di premis-premis Defendan Pertama dan Defendan Kedua yang telah disita oleh Plaintif melalui Borang Senarai Sita (muka surat 33 – 35 Jilid B). Eksibit P1 hingga P25 adalah barangan fizikal yang disita dari premis Defendan Pertama, manakala Eksibit P26 hingga P40 telah disita dari premis Defendan Kedua. [21] Tambahan kepada itu lagi, dokumen-dokumen di mukasurat 33 hingga 35, Jilid B menunjukkan bahawa sitaan yang dibuat telah diakui oleh kedua-dua Defendan di mana wakilnya SD3 telah hadir semasa pemeriksaan dan telahpun menandatangani dokumen di muka surat 33 – 35 tanpa paksaan. [22] Defendan Pertama dan Defendan Kedua di dalam usaha mereka menangkis berlakunya atau wujudnya kesalahan pengusikan meter di kedua-dua premis tersebut telah membangkitkan pengataan-pengataan berikut: (a) meter di kedua-dua premis tersebut sememangnya tidak berfungsi dengan baik dan telah rosak (faulty). (b) meter-meter tersebut adalah di dalam jagaan Plaintif kerana bilik meter dikunci dan kuncinya dalam pegangan Plaintif. (c) Plaintif gagal mengemukakan laporan atas laporan rutin atau berkala ke atas syarikat-syarikat LPC yang didakwa dilakukan oleh SP1. (d) semasa pemeriksaan dijalankan di premis Defendan Pertama pada 22.2.2006 sil Plaintif pada kiosk meter didapati tidak koyak. (a) meter di kedua-dua premis tersebut sememangnya tidak berfungsi dengan baik kerana telah rosak(faulty). [23] Peguam terpelajar bagi kedua-dua Defendan telah menghujahkan bahawa terdapat keterangan yang telah dikemukakan oleh Defendan bahawa Defendan sejak bulan September tahun 2005 lagi telah menyedari bahawa walaupun tahap pengeluaran kekal seperti biasa tetapi penggunaan bekalan elektrik daripada bil-bil yang dikeluarkan oleh Plaintif telah didapati menurun. SD2 dan SD3 di dalam keterangan mereka telah menyatakan bahawa aduan-aduan berkenaan kerosakan telah dibuat kepada seorang yang bernama Puan Khodijah Kamaruddin (Puan Khodijah) yang dikatakan pegawai atau pekerja Plaintif mengenai kerosakan meter tersebut sejak bulan September 2005 lagi. Bagi membuktikan pengataan tersebut kedua-dua Defendan telah bergantung kepada dua dokumen yakni: i. emel Puan Khodijah bertarikh 13.4.2006 kepada SP3 yang dikatakan rakan sekerja {mukasurat 11,Jilid B(i)}. Emel tersebut adalah seperti berikut: From: Khodijah Kamarudin @PK BANGI Sent: Thursday, April 13, 2006 12.13 PM To: ‘mailto:nizamsamsuri@tnbm.com.my Subject: TUKAR METER HT YANG ROSAK En Nizam sila confirm type w/o yang akan saya keluar untuk nombor akaun tersebut:- 1) 774226 – CHG PLYWOOD – Battery Lemah – w/o 34 2) 774316 – SAN TEH – Meter Blank – w/o 34 3) 774108 – LB ALLUMINIUM – Meter slow 34 4) 774376 – PETRONAS – Meter rosak w/o 34 5) 774784 – GUPPY PLASTIK – Battery lemah – w/o 34 6) 774598 – LYE MANUFACTURING – Laporan meter telah ditukar – w/o 34 Harap dapat kerjasama dari En Nizam ……Tq ii. surat SD2 kepada Plaintif bertarikh 2.12.2008 {mukasurat 445, Jilid B(iii)} yang kononnya Defendan Pertama telah membuat aduan kepada Puan Khodijah atas masalah meter sejak September 2005. [24] Adalah dihujahkan bagi pihak Defendan Pertama bahawa Defendan Pertama tidak akan membuat aduan mengenai kerosakan meter (faulty meters) kepada Plaintif sekiranya meter itu diusik. [25] Untuk pengataan tersebut, saya bersependapat dengan dengan peguam terpelajar Plaintif bahawa tiada sebarang dokumen yang boleh menyokong pengataan SD2 bahawa beliau telah membuat aduan bermula September 2005 lagi dan aduan berterusan mengenai kerosakan meter telah dibuat kepada Plaintif mengenainya. Bagi saya, emel di muka surat 11, Jilid B(i) tidak langsung membayangkan atau mengaitkan tentang adanya kerosakan pada meter di premis Defendan Pertama. Emel yang ditulis oleh Pn. Khodijah kepada SP3 semata-mata menyatakan bahawa meter perlahan. Kalaulah benar meter di premis Defendan Pertama rosak sejak September 2005 lagi dan aduan-aduan berterusan mengenainya dibuat oleh SD2 kepada Puan Khodijah, mengapakah tidak ada sebarang surat atau emel daripada Defendan sendiri kepada Plaintif untuk menunjukkan adanya aduan mengenai kerosakan meter di premis Defendan telah dibuat kepada Plaintif. Defendan Pertama cuba bergantung kepada emel Pn Khodijah bertarikh 13 April 2006 yakni lebih kurang 7 bulan selepas kononnya laporan telah dibuat kepada Plaintif berkenaan meter yang rosak. Apa yang jelas, emel ini tidak jelas kenapa Pn Khodijah telah menulis emel ini kepada SP3 selain daripada nota meter perlahan. SP3 sendiri tidak mengetahui kenapa emel ini ditulis oleh Pn. Khodijah kepadanya. Pn Khodijah tidak dipanggil oleh Defendan Pertama untuk memberi keterangannya mengenai emelnya. Di samping itu, sekiranya Defendan Pertama jujur dan ikhlas ingin memaklumkan kepada Plaintif bahawa terdapat kerosakan pada meter, Defendan Pertama boleh memaklumkan mengenai kerosakan ini semasa SP1 menjalankan pemeriksaan rutin/berkala di premis tersebut pada bulan April 2006, tetapi ini tidak dibuat oleh Defendan Pertama pun. [26] Manakala berkenaan surat SD2 bertarikh 2.12.2008 pula, fakta yang jelas bahawa surat SD2 itu telah ditulis selepas lebih dua tahun setelah pemeriksaan dijalankan pada 22 dan 23 Mei 2006 ke atas premis kedua-dua Defendan di mana pengusikan meter /pepasangan meter telah dikesan di premis-premis tersebut. Adalah menjadi dapatan saya bahawa penulisan surat sebegini sememangnya sesuatu fikiran terkemudian (afterthought) oleh kedua-dua Defendan dan bertujuan mengelak tanggungan. Justeru, adalah dapatan saya bahawa pengataan Defendan Pertama terdapat kerosakan meter di premis Defendan Pertama dan aduan-aduan telah dibuat mengenainya kepada Plaintif adalah rekaan semata-mata. (b) meter-meter tersebut adalah di dalam jagaan Plaintif kerana bilik meter dikunci dan kuncinya dalam pegangan Plaintif. [27] Pengataan kedua-dua Defendan bahawa mereka tiada akses kepada meter/pepasangan meter kerana meter-meter tersebut adalah di dalam jagaan Plaintif di mana bilik meter dikunci dan kuncinya dalam pegangan Plaintif adalah satu alasan yang direka semata-mata untuk menafikan kewujudan berlakunya pengusikan meter. Saya kata begitu kerana sememang pada logiknya pada awal pepasangan meter, bilik meter akan dikunci dengan kunci Plaintif. Satu hakikat yang tidak boleh diketepikan dan disangkal adalah bilik meter di mana meter ditempatkan atau dipasang adalah di dalam premis ataupun kawasan Defendan Pertama dan Defendan Kedua. Di dalam kes ini keterangan yang tidak dapat disangkal oleh kedua-dua Defendan adalah semasa pasukan Plaintif dan Suruhanjaya Tenaga tiba untuk menjalankan pemeriksaan meter/pepasangan meter di premis kedua-dua Defendan, bilik meter di mana meter itu ditempatkan tidak lagi dikunci. Malahan keterangan saksi-saksi Plaintif di premis Defendan Kedua walaupun meter berkongsi ruang dengan switch gear tetapi pada pemeriksaan engsel kunci ke bilik meter sememangnya telah rosak. Pengataan bahawa meter-meter tersebut adalah di dalam jagaan Plaintif kerana bilik meter dikunci dan kunci dan kuncinya dalam pegangan Plaintif adalah pengataan kosong semata-mata dan merupakan suatu alasan yang remeh-temeh (lame excuse) bagi mengelak tanggungan. (c) Plaintif gagal mengemukakan laporan atas laporan rutin atau berkala ke atas syarikat-syarikat LPC yang didakwa dilakukan oleh SP1. [28] Bagi saya pengataan kedua-dua Defendan yang Plaintif gagal mengemukakan laporan atas laporan rutin atau berkala ke atas syarikat-syarikat LPC adalah satu pengataan yang tidak mempunyai apa-apa asas ataupun justifikasi. Saya tidak nampak kaitan atau kesan ketidakpengemukaan laporan rutin atau berkala SP1 pada 23.4.2006 tersebut kepada kes Plaintif. Ketidakpengemukaan laporan rutin atau berkala tersebut tidak mencacatkan langsung keterangan-keterangan mantap Plaintif atas penemuan-penemuan pengusikan meter/pepasangan meter yang berlaku di premis-premis kedua-dua Defendan pada 22 dan 23.5.2006. Keterangan SP1 sememangnya telah pergi ke premis Defendan Pertama pada 3.4.2006 tidak dapat disangkal oleh kedua-dua Defendan malah keterangan ini telah disokong oleh keterangan dokumentar yang dikemukakan oleh kedua-dua Defendan sendiri yakni buku pendaftaran pelawat di mukasurat 205, Ikatan Dokumen Defendan (Bi). Di dalam buku pendaftaran pelawat pada tarikh 3.4.2006 tersebut nama SP1 dan tandatangan kehadirannya tertera di dalam buku tersebut. SP1 telah mengesyaki wujudnya pengusikan tetapi tidak boleh berbuat apa-apa kerana tidak mempunyai peralatan untuk kerja-kerja pembetulan selain daripada menggantikan sil pada kiosk meter yang telah diusik atau koyak kepada sil Plaintif. Keterangan SP1 yang meletakkan sil Plaintif kepada di meter Defendan Pertama sebelum meninggalkan premis Defendan Pertama menjawab isu (d) yang ditimbulkan Defendan bahawa pada tarikh pemeriksaan dijalankan di premis Defendan Pertama pada 22.2.2006 terdapat sil Plaintif pada kiosk meter. [29] SP1 di dalam keterangannya memberitahu beliau ada membuat laporan rutin untuk tarikh tersebut tetapi laporan itu telah diberikan kepada Suruhanjaya Tenaga bagi kes jenayah yang melibatkan kedua-dua Defendan yang telah dituduh di Mahkamah Sesyen Kajang untuk kesalahan-kesalahan pengusikan meter. Keterangan SP1 yang tidak disangkal bahawa setelah membuat pemeriksaan rutin tersebut, beliau telahpun memaklumkan dapatan megenai syaknya berlakunya pengusikan meter kepada SP3, pegawai atasannya. Keterangan ini disokong oleh SP2. Di dalam hal ini saya tidak ada sebab untuk meragui keterangan SP1 dan SP3. Apa yang lebih penting di dalam kedua-dua guaman ini adalah penemuan-penemuan yang telah didapati oleh pasukan Plaintif pada 22 dan 23.5.2006 di premis-premis tersebut. (a) tiada wakil/pekerja kedua-dua Defendan hadir semasa pemeriksaan dijalankan oleh Plaintif dan Suruhanjaya Tenaga terhadap meter/pepasangan meter. [30] Adalah menjadi dapatan saya bahawa pengataan ketidakhadiran wakil/pekerja kedua-dua Defendan semasa pemeriksaan dijalankan oleh Plaintif dan Suruhanjaya Tenaga terhadap meter di premis-premis tersebut ini adalah satu pengataan pembohongan kedua-dua Defendan yang begitu jelas dan ketara. Kehadiran SD3 semasa pemeriksaan dijalankan di premis-premis tersebut memang tidak dapat disangkal. Keterangan-keterangan SP1, SP2 dan SP3 menyokong keterangan bahawa SD3 sememangnya hadir di bilik meter semasa pemeriksaan dijalankan. Malahan menurut keterangan-keterangan SP1, SP2 dan SP3 bahawa apa-apa penemuan yang didapati semasa pemeriksaan dan tahap (progress) telah dimaklumkan dan diberitahu kepada SD3. Apa yang lagi pasti, semasa pemeriksaan dijalankan gambar-gambar telah diambil dan gambar-gambar di muka surat 38, 42 dan 65, Jilid B jelas SD3 telah kelihatan di dalam gambar-gambar tersebut membuktikan kehadiran bersamanya semasa pemeriksaan dijalankan. SD3 sendiri semasa memberi keterangan mengakui dirinya kelihatan jelas di dalam gambar-gambar tersebut dan beliau sendiri mengakui hadir semasa pemeriksaan dijalankan oleh Plaintif dan Suruhanjaya Tenaga. [31] Tambahan lagi, Borang Senarai Sita di muka surat 33 hingga 35, Jilid B telah menunjukkan kehadiran beliau di mana SD3 telahpun menandatangani dokumen-dokumen tersebut tanpa sebarang paksaan daripada Plaintif. Keputusan bagi isu (i) [32] Penimbangan dan penelitian keterangan-keterangan yang dikemukakan di mahkamah ini, adalah menjadi dapatan saya bahawa wujud dan berlakunya pengusikan meter di premis-premis Defendan Pertama dan Defendan Kedua. Malahan pada pandangan saya keterangan-keterangan yang telah dikemukakan mengenai berlakunya pengusikan meter/pepasangan adalah overwhelming. Dengan yang demikian jawapan bagi isu (i) adalah positif. Isu (ii) dan (iii) ditentukan bersama. ii) samada Defendan Pertama dan Defendan Kedua bertanggungan untuk membayar kerugian dialami oleh Plaintif atas kehilangan hasil penggunaan bekalan elektrik yang tidak direkodkan sebagaimana tuntutan Plaintif melalui penyataan bertulisnya menurut seksyen 38(4) dan (5) Akta. (iii) samada keterangan prima facie Plaintif menurut seksyen 38(4) berjaya disangkal oleh kedua-dua Defendan. [33] Plaintif di dalam kes ini telah menuntut kehilangan hasil atau kerugiannya terhadap bekalan elektrik yang penggunaannya tidak direkodkan pembacaan atas pengusikan meter di premis Defendan Pertama dan kos perbelanjaan yang telah ditanggung oleh Plaintif yang timbul dari pengusikan meter tersebut. Plaintif telah membuat pengiraan atau perhitungan kebelakang unit penggunaan yang tidak direkodkan bacaan di mana bagi premis Defendan Pertama peratusan ralat penggunaan adalah sebanyak -25.48%, manakala bagi premis Defendan Kedua peratusan ralat unit yang tidak direkodkan pembacaannya adalah -59.98%. [34] Kedua-dua Defendan di dalam mempertikaikan dan dalam usaha mereka untuk mematahkan penyataan seksyen 38(4) Akta yang dikeluarkan Plaintif telah semata-mata bergantung kepada hujahan bahawa Plaintif telah cuba membuktikan keberhutangan kedua-dua Defendan atas kerugian yang dialaminya akibat penggunaan bekalan elektik yang tidak direkodkan pembacaannya bersandarkan kepada seorang saksi sahaja iaitu SP4 yang merupakan pegawai kewangan Plaintif yang yang bertanggungjawab membuat pengiraan bil ke belakang bagi tujuan tuntutan pembayaran terhadap kedua-dua Defendan. Peguam kedua-dua Defendan yang bergantung sepenuhnya kepada keputusan Mahkamah Rayuan di dalam kes Sumbang Projeks Sdn Bhd v Tenaga Nasional Berhad [2014] 4 CLJ 323, telah menggunakan pendekatan yang sama di dalam cubaannya mematahkan keterangan prima facie Plaintif menurut seksyen 38(4) Akta. Peguam kedua-dua Defendan telah menghujahkan bahawa keterangan SP4 bukanlah keterangan teknikal seorang yang mempunyai pengetahuan teknikal yang berupaya membuat pengiraan tepat bagi membuat pengiraan bil ke belakang Plaintif. Adalah dihujahkan selanjutnya oleh peguam kedua-dua Defendan bahawa pengiraan yang dibuat oleh SP4 melalui graf-graf di muka surat 83-84 Jilid B (bagi Defendan Pertama mulai tarikh 9.11.2005 ) dan muka surat 87-89, Jilid B (bagi Defendan Kedua mulai tarikh 10.11.2005) berdasarkan penurunan mendadak penggunaan elektrik (sudden and sharp drop electricity consumption) adalah spekulasi dan andaian SP4 semata-mata tanpa pengesahan mana-mana keterangan saksi teknikal. [35] Untuk hujahan tersebut, peguam kedua-dua Defendan telah menarik perhatian saya kepada perenggan 52, 53, 54 dan 55 penghakiman Mahkamah Rayuan di dalam kes Sumbang Projeks. Pembacaan saya atas perenggan-perenggan tersebut adalah bahawa Mahkamah Rayuan di dalam kes Sumbang Projeks itu telah menolak keterangan pengiraan bil ke belakang yang dibuat oleh SP3 di dalam kes itu berdasarkan penurunan mendadak penggunaan elektrik walaupun pengiraannya telah disahkan oleh tiga pegawai kanannya, tanpa keterangan ketiga-tiga pegawai kanannya, maka ketepatan pengiraan yang dibuat oleh SP3 adalah tanpa sokongan. Dengan yang demikian pengiraan dan cara pengiraan yang dibuat oleh SP3 adalah semata-mata andaian (a mere conjecture) di pihaknya dan timbul keraguan yang serius akan ketepatannya. Untuk tujuan pengiraan bil ke belakang ini, Mahkamah Rayuan telah meletakkan ke atas bahu Plaintif untuk mengemukakan kaedah yang ketara, lebih dipercayai dan pengiraan saintifik daripada andaian semata-mata berdasarkan kepada beberapa graf perbandingan (a more tangible, reliable and scientific method of calculation than a mere assumption based on some comparative graphs) seperti yang telah dibuat oleh SP3 di dalam kes itu. [36] Berbalik kepada kes di hadapan mahkamah ini, bagaimanakah pengiraan bil kebelakang di dalam kedua-dua guaman ini dibuat oleh Plaintif? Untuk itu, saya telah meneliti keterangan SP4. SP4 di dalam keterangannya memberitahu bahawa bagi akaun kedua-dua Defendan menunjukkan penurunan peggunaan yang mendadak bermula selepas 5.10.2005. SP4 dalam keterangannya lagi menyatakan bahawa selepas tarikh 5.10.2005 terdapat penurunan dalam penggunaan kWh yang konsisten di mana penggunaan kWh tidak meningkat ke tahap penggunaan kWh sebelum 5.10.2005. Oleh itu, tarikh mula pengiraan kebelakang kehilangan hasil TNB bermula pada bil 10.11.2005. Menurut SP4 lagi, bagi Defendan Pertama jumlah perbezaan di antara jumlah yang telah dibilkan dan jumlah bil sebenar adalah sebanyak RM 496,682.28. Apabila ditambah dengan kos operasi pemeriksaan Plaintif sebanyak RM1,000.00 jumlah tertunggak yang masih terhutang oleh Defendan Pertama kepada Plaintif adalah sebanyak RM497,682.28. Manakala, bagi Defendan Kedua pula, jumlah perbezaan di antara jumlah yang telah dibilkan dan jumlah bil sebenar adalah sebanyak RM1,131.812.95 dan apabila ditambah dengan kos operasi pemeriksaan Plaintif sebanyak RM1,000.00, jumlah tertunggak yang masih terhutang oleh Defendan Kedua kepada Plaintif adalah sebanyak RM1,132,812.95. [37] Namun begitu perlu dinyatakan di sini bahawa keterangan SP4 mengenai pengiraan jumlah bil belakang tidak berhenti setakat melihat trend penurunan mendadak yang bermula di premis kedua-dua mulai 5.10.2005 tetapi apa yang telah dilakukan juga oleh SP4 adalah mengkaji juga trend penggunaan bulanan sebelum 5.10.2005 untuk tempoh empat (4) tahun bersamaan bil pengunaan sepanjang 48 bulan mulai bil 3 Mei 2002 sehingga bil 5 Oktober 2005. SP4 telah mendapati bahawa dalam tempoh tersebut penggunaan elektrik di kedua-dua premis adalah konsisten sehingga bil 5 Oktober 2005. Penurunan mendadak telah bermula pada 5.10.2005, maka dengan itu pengeluaran bil ke belakang bagi penggunaan elektrik yang tidak direkodkan bacaannya bagi pengiraan bil bulanan November 2005 yakni bermula 9.11.2005 sehingga bagi kedua-dua premis. Pengiraan bil ke belakang bagi premis kedua-dua Defendan adalah untuk bil November 2005 sehinggalah bil 22.5. 2006 bagi Defendan Pertama dan 5.6.2006 bagi Defendan Kedua iaitu apabila meter dan pepasangannya diperbetulkan dan diganti selepas pemeriksaan dibuat pada 22 dan 23 Mei 2006. SP4 di dalam keterangannya lagi, bagi tujuan pengeluaran ke belakang untuk tempoh-tempoh tersebut, kaedah yang telah digunakan oleh SP4 adalah dengan menggunakan peratusan ralat yang telah didapati oleh beliau dari pengiraan peratusan ralat yang telah dibuat oleh SP3 iaitu bagi Defendan Pertama sebanyak -25.48% dan Defendan Kedua -59.98%. Dengan peratusan ralat yang telah ditentukan oleh SP3 bagi kedua-dua premis. SP4 telah kemudiannya menentukan jumlah kWh (peak), kWh (off peak) dan kW yang sebenar bagi bulan-bulan yang terpakai yang mana beliau akan menentukan jumlah sebenar 100% penggunaan elektrik kedua-dua Defendan di dalam jangka masa tarikh mula dan tarikh akhir pengiraan di atas. Di dalam perkara ini, menurut SP4 lagi ralat yang telah ditemui untuk meter Plaintif bagi akaun Defendan Pertama adalah sebanyak -25.48%. Ini bermaksud bahawa meter tersebut hanya merekodkan 74.52% elektrik yang telah dibekalkan kepada Defendan Pertama. Oleh itu, bil elektrik yang dikeluarkan oleh TNB tidak akan menunjukkan penggunaan elektrik yang sebenar Defendan Pertama. Begitu juga dengan meter di premis Defendan Kedua menunjukkan bahawa ralat tertinggi sebanyak -59.98%, ini bermaksud bahawa meter Plaintif hanya merekodkan sebanyak 40.02% elektrik yang telah dibekalkan kepada Defendan Kedua. Oleh itu, bil elektrik Defendan Kedua juga tidak menunjukkan penggunaan sebenar elektrik sebenar di premis Defendan Kedua. [38] Setelah mendapat jumlah sebenar penggunaan elektrik bulanan, barulah SP4 menentukan jumlah terkurang bil dengan menolak jumlah kWh (peak), kWh (off peak) dan kW yang telah terkurang bil didarab dengan tarif masing-masing. Di dalam hal ini, tarif bagi kWh (peak), kWh (off peak) dan kW kedua-dua Defendan adalah 0.208, 0.128 dan 21.70 masing-masing. Jumlah ketiga-tiga kWh (peak), kWh (off peak) dan kW bagi tiap-tiap bulan yang berkenaan ini kemudiannya dijumlahkan untuk mendapat jumlah terkurang bil setiap bulan tersebut. Setelah jumlah terkurang bil setiap bulan telah didapati, jumlah-jumlah ini akan kemudiannya dijumlah untuk mendapat jumlah besar kehilangan hasil Plaintif bagi bulan-bulan atau tempoh tersebut. [39] Perlu dinyatakan di sini bahawa keterangan SP4 di hadapan Mahkamah langsung tidak dapat disangkal oleh kedua-dua Defendan. Begitu juga dengan keterangan SP3. Keterangan SP3 di dalam memperolehi peratusan ralat dengan penggunaan alat PWS 1.3 untuk ujian kejituan meter dan juga membuat pengiraan peratusan ralat dengan menggunakan bacaan-bacaan atas ujian-ujian perbandingan arus tidak langsung dapat disangkal oleh kedua-dua Defendan. Malahan semasa SP3 di soal balas oleh peguam kedua-dua Defendan, peguam kedua-dua Defendan telah cuba mempertikaikan Ulasan Teknikal SP3 di muka surat 78, Jilid B berkenaan ketepatan ujian kejituan meter menggunakan alat PWS 1.3. SP3 telah memberitahu bahawa PWS 1.3 berupaya mengira bacaan arus dan seterusnya membuat pengiraan pengujian ketepatan meter. Malahan untuk melihat samada pembacaan peratusan ralat melalui alat PWS 1.3 tepat atau tidak, SP3 telah diminta oleh peguam untuk menunjukkan bagaimana pengiraan peratusan ralat boleh di buat berdasarkan bacaan-bacaan arus yang telah diambil dengan Amptong semasa pemeriksaan dijalankan. Dengan bacaan arus yang ada, SP3 telah membuat pengiraan bagi mendapatkan peratusan ralat seperti berikut: Bacaan sebenar R : 1.14 A B : 1.46 A Bacaan direkodkan meter. R : 1.13 A B : 0.23 A = 2.03 = 0.795 % error = 0.795 – 2.03 x 100% 2.03 = -60.837% [41] SP3 juga telah memberitahu bahawa peratusan ralat akan berbeza sedikit dalam titik perpuluhan berbanding dengan menggunakan alat PWS 1.3 kerana bacaan arus yang menggunakan Amptong adalah dalam Amp. [42] Dengan keterangan teknikal yang menyeluruh dan tepat, maka di dalam hal ini, saya dengan hormatnya bersependapat dengan peguam Plaintif bahawa kes Sumbang Projeks hendaklah dibezakan dengan kes di hadapan saya ini. Adalah menjadi dapatan saya bahawa ujian-ujian perbandingan arus yang pengiraannya telah diterangkan dengan terperinci oleh SP3 seorang pegawai teknikal yang mahir dalam perkara-perkara elektrik dengan menggunakan satu kaedah dan formula pengiraan teknikal yang nyata dan menyeluruh. SP4 pula, di dalam membuat pengiraan bil ke belakang bagi tenaga elektrik yang tidak direkodkan penggunaannya atas pengusikan kepada meter/pepasangan meter telah membuat pengiraan dengan melihat trend penggunaan elektrik konsisten selama 48 bulan sebelum penurunan mendadak yang didapati bermula pada 5.10.2005 dan kemudian melihat pula trend penggunaan selama tempoh selepas 5.10.2005 sehingga tarikh pemeriksaan yang dijalankan di premis kedua-dua Defendan di mana selepas pemeriksaan penggantian kepada pepasangan meter dibuat. Selepas melihat trend-trend sedemikian, SP4 telah mengira penggunaan Kwh peak dan off peak. Pengiraan bil ke belakang yang dibuat oleh SP4 tidak semata-mata berdasarkan sudden drop tetapi juga berdasarkan peratusan ralat yang telahpun dibuat oleh SP3. Malahan di dalam kes ini, peratusan ralat akan menggambarkan jumlah yang tepat penggunaan yang tidak direkodkan. Pengiraan SP4 pada keseluruhannya amat berbeza dari cara pengiraan cara oleh saksi SP3 di dalam kes Sumbang Projeks. [43] Perlu juga dinyatakan di sini, peguam kedua-dua Defendan di dalam cubaannya mempertikai pengiraan bil ke belakang Plaintif dengan bersandar kepada apa yang telah diputuskan di dalam kes Sumbang Projeks dengan mempertikai bil kebelakang berdasarkan penurunan penggunaan mendadak. Selain daripada itu, peguam kedua-dua Defendan tidak langsung mempertikaikan bagaimana pengiraan yang telah dibuat oleh SP3 dan SP4 dan tidak juga menyangkal pengiraan-pengiraan tersebut sehingga pengeluaran bil-bil ke belakang. Bagi saya, keterangan-keterangan saksi SP3 menerusi keterangan dokumentar (Borang Pemeriksaan LPC bertarikh 22.5.2006 di muka surat 27-32, Jilid B dan Borang Pemeriksaan LPC bertarikh 23.5.2006 di muka surat 57-62, Jilid B) yang telah memperolehi peratusan ralat penggunaan dan SP4 berkaitan bagaimana bil ke belakang itu telah dibuatnya dengan menggunakan peratusan ralat menerusi keterangan dokumentar (“Meter Data” LB Aluminium Sdn Bhd di 79, Jilid B; “Meters Data” Rank Metal Sdn Bhd di muka surat 80, Jilid B; “Register Reading History” LB Aluminium Sdn Bhd di muka surat 81-84, Jilid B; “Register Reading History” Rank Metal Sdn Bhd di mukasurat 85-86, Jilid B; Graf-graf Penggunaan Elektrik oleh LB Aluminium Sdn Bhd di muka surat 87-89, Jilid B; Jadual Pengiraan Kebelakang TNB (LB Aluminium Sdn Bhd) di muka surat 90-91, Jilid B dan Jadual Pengiraan Kebelakang TNB (Rank Metal Sdn Bhd) di muka surat 92-94, Jilid B) adalah keterangan prima facie bagi pembayaran tertunggak yang harus dibayar oleh pengguna akibat kerugian hasil bagi kesalahan di bawah seksyen 37(1) Akta Bekalan Elektrik, 1990. Oleh kerana tiada keterangan bercanggah yang dikemukakan bagi bil ke belakang, maka keterangan SP3 dan SP4 adalah keterangan prima facie bagi pembayaran tertunggak yang kena dibayar oleh kedua-dua Defendan seperti yang diperuntukkan dalam seksyen 38(4)dan (5) Akta tersebut. Di dalam hal yang demikian adalah menjadi dapatan saya bahawa dengan ini kedua-dua Defendan gagal mematahkan atau/dan menyangkal keterangan prima facie menurut seksyen 38(4) Akta yang dikemukakan oleh Plaintif. [44] Atas alasan-alasan di atas, jawapan kepada isu (ii) adalah positif dan jawapan kepada isu (iii) pula adalah dijawab dengan negatif. Defendan Pertama dan Defendan Kedua adalah dengan ini bertanggungan terhadap kerugian/ kehilangan hasil Plaintif atas penggunaan-penggunaan elektrik yang tidak direkodkan pembacaannya. Isu (iv) dan (v) (iv) samada Plaintif adalah diestopkan daripada membuat tuntutan-tuntutan ini memandangkan Defendan Pertama dan Defendan Kedua telahpun menjelaskan bil-bil yang dikeluarkan oleh Plaintif bagi penggunaan elektrik di premis-premis mereka. (v) samada Plaintif adalah dihalang oleh Peraturan 11, Peraturan-Peraturan Bekalan Pemegang Lesen 1990 (Peraturan 11) daripada menuntut jumlah-jumlah kerugian/ kehilangan hasil tersebut kerana Peraturan 11 hanya membenarkan pelarasan ke belakang tidak melebihi tiga bulan daripada tarikh Defendan (surat Plaintif kepada Defendan bertarikh 9.11.2006) diberitahu mengenai caj terkurang. [45] Isu estopel dan perlanggaran Peraturan 11 yang dibangkitkan oleh peguam kedua-dua Defendan adalah tidak berasas. Hak untuk menuntut kerugian hasil atau kehilangan hasil adalah hak statutori yang diperuntukkan di bawah Akta. Di dalam kedua-dua guaman ini, apa yang jelas, tuntutan Plaintif terhadap Defendan Pertama dan Defendan Kedua adalah untuk kerugian hasil yang terbit daripada pengusikan meter yang mengakibatkan penggunaan sebenar elektrik tidak direkodkan adalah tindakan Plaintif di dalam menguatkuasakan haknya yang sah di sisi undang-undang. [46] Kedua-dua Defendan di dalam cubaan menyangkal tuntutan-tuntutan Plaintif telah bergantung kepada keterangan-keterangan SD1, SD2 dan SD3. Pada dasarnya keterangan ketiga-tiga saksi kedua-dua Defendan ini adalah penafian semata-mata bahawa berlakunya pengusikan meter/pepasangan meter di kedua-dua premis tersebut. SD1 kini adalah Pengarah Syarikat Defendan Pertama dan merupakan Pengarah Eksekutif Defendan Kedua. Pada tahun 2005 dan 2006 beliau adalah Non Executive Director dan Pengurus Besar kedua-dua Defendan. SD1 cuba mempertahankan bahawa kononnya sebagai syarikat yang disenaraikan di Bursa Malaysia, mereka tidak akan melibatkan syarikat di dalam aktiviti atau tindakan pengusikan meter sebegini kerana syarikat mempunyai reputasi untuk dilindungi. Namun begitu, SD1 di dalam keterangannya juga mengakui bahawa kedua-dua Defendan telahpun didapati bersalah dan disabitkan atas pertuduhan-pertuduhan jenayah di bawah seksyen 37(3) Akta di Mahkamah Sesyen Kajang bersangkutan dengan pengusikan meter/pepasangan meter hasil dari pemeriksaan yang dilakukan pada 22 dan 23 Mei 2006 tersebut. Kedua-dua Defendan telah merayu ke Mahkamah Tinggi terhadap keputusan Hakim Mahkamah Sesyen Kajang dan rayuan-rayuan masih belum didengar lagi. [47] SD1 juga cuba menegakkan pengataan bahawa aduan mengenai kerosakan meter telah dibuat oleh Defendan Pertama bermula September 2005 dengan merujuk emel Puan Khodijah dan surat SD2. Perkara-perkara ini telahpun dibuat dapatannya oleh saya di awal penghakiman tadi dan tiada keperluan untuk mengulanginya. [48] Berkenaan dengan keterangan SD2 pula, kononnya beliau telah membuat aduan-aduan kepada Plaintif mengenai kerosakan meter. Pengataan SD2 ini adalah pengataan kosong semata-mata dan beliau telah memberitahu Mahkamah bahawa sememangnya tiada apa-apa dokumen pun menunjukkan bahawa ada aduan dibuat kepada Plaintif mengenai kerosakan meter. Awal tadi saya telah membuat dapatan mengenai hal ini, saya ulangi bahawa penyataan adanya meter rosak dan laporan di mukasurat 445 adalah sesuatu yang afterthought. Maka keterangan SD2 tidak dapat membantu kedua-dua Defendan. [49] Keterangan SD3 pula adalah keterangan yang tidak boleh dipertimbangkan langsung. Kedua-dua Defendan di dalam penyataan pembelaannya telah memplidkan pernyataan bahawa semasa Suruhanjaya Tenaga dan Plaintif menjalankan pemeriksaan, pemeriksaan telah dijalankan secara sulit tanpa kehadiran pekerja atau wakilnya. Pernyataan kedua-dua Defendan yang pemeriksaan dibuat oleh Plaintif dibuat secara sulit tanpa kehadiran wakil/pekerja dan kononnya wakil kedua-dua Defendan tidak dibenarkan hadir semasa pemeriksaan telah saya buat dapatan ke atasnya di perenggan 30 penghakiman ini. Saya tekankan sekali lagi di sini bahawa pernyataan kedua-dua Defendan yang pemeriksaan telah dijalankan oleh Suruhanjaya Tenaga dan Plaintif secara sulit tanpa wakil/pekerja kedua-dua Defendan atau wakil/pekerja kedua-dua Defendan tidak dibenarkan hadir semasa pemeriksaan dijalankan adalah satu pembohongan sangat ketara di pihak kedua-dua Defendan. Kesimpulan [50] Berdasarkan keterangan-keterangan yang ada di hadapan saya dan setelah membuat penelitian dan pertimbangan kepada keseluruhan keterangan, atas imbangan kebarangkalian, saya berpuashati bahawa Plaintif telah berjaya membuktikan tuntutan-tuntutannya terhadap Defendan Pertama dan Defendan Kedua. Maka dengan ini, tuntutan Plaintif terhadap Defendan Pertama dan Defendan Kedua dibenarkan dengan kos. Faedah pada kadar 5% setahun diberikan atas jumlah penghakiman dari tarikh pemfailan writ sehingga tarikh penyelesaian penuh. Kos kedua-dua Guaman [49] Setelah mendengar hujahan ringkas daripada kedua pihak mengenai kos, saya telah memerintahkan kedua-dua Defendan membayar kepada Plaintif kos sebanyak RM75,000.00 bagi kedua-dua guaman di hadapan saya ini. ..................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi NCVC 13 Shah Alam Selangor Darul Ehsan Bertarikh 04hb Disember 2014 Peguam Plaintif - Tetuan Shook Lin & Bok Encik David Dinesh Mathew Encik Hadi Mukhlis Bin Khairulmaini Peguam Defendan - Tetuan Soo Thien Ming & Nashrah Cik Lua Ai Siew Cik Chin Yan Leng 43

Tika 2.6.0

22-551-2000

PLAINTIF SELANGOR INDUSTRIAL CORPORATION SDN BHD DEFENDAN DANALIS DISTRIBUTORS SDN BHD

19/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=3253f472-2b71-45e4-be25-db396d6dc4dc&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. MT4-22-551-2000 ANTARA SELANGOR INDUSTRIAL CORPORATION SDN BHD ... PLAINTIF DAN DANALIS DISTRIBUTORS SDN BHD … DEFENDAN ALASAN PENGHAKIMAN (Kandungan 10) [1] Kandungan 10 ini adalah permohonan pihak Defendan untuk membatalkan tindakan Plaintif terhadap Defendan menurut Aturan 18 Kaedah 19 (1)(a) atau (b) dan/atau (c) dan/atau (d) Kaedah-kaedah Mahkamah 2012 (KKM 2012). [2] Fakta kes menurut pliding yang difailkan adalah seperti berikut: 2.1 Plaintif (Selangor Industrial Corporation Sdn Bhd) adalah sebuah syarikat sendirian berhad yang diperbadankan di Malaysia dengan pejabat berdaftarnya di No. 1, Jalan Singa B20/B, Seksyen 20, 40000 Shah Alam, Selangor Darul Ehsan. 2.2 Defendan (Danalis Distributors Sdn Bhd) juga adalah sebuah syarikat sendirian berhad yang diperbadankan di Malaysia dan mempunyai alamat perniagaan di No. 71, Jalan SS 15/5A, 47500 Subang Jaya, Petaling Jaya, Selangor Darul Ehsan. 2.3 Pada tahun 1991, Plaintif dan Defendan telah memasuki satu perjanjian usahasama secara lisan (perjanjian tersebut) di mana melalui perjanjian ini Plaintif bersetuju membiayai dengan kos sendiri pembelian buku-buku, periodical journals, jurnal-jurnal, majalah-majalah dan jenis-jenis penerbitan yang lain (stok tersebut), manakala Defendan pula akan bertanggungjawab mengedar dan menjual stok tersebut. 2.4 Adalah menjadi terma-terma perjanjian tersebut seperti berikut: (i) Defendan akan bertanggungjawab di dalam pengendalian akaun wajar (keeping proper account) bagi pembelian dan jualan stok tersebut. (ii) Defendan akan menghantar dan memasukkan hasil jualan ke dalam satu Akaun Bersesama yang dibuka atas nama Plaintif dan Defendan. (iii) Bagi tujuan Akaun Bersesama ini Plaintif menghantar empat (4) pekerjanya kepada Defendan bagi pengurusan, penyelenggaraan dan pengendalian Akaun Bersesama tersebut. (iv) Adalah merupakan prasyarat perjanjian tersebut bahawa laporan bulanan adalah disediakan bersama-sama bagi segala hasil jualan yang diterima daripada penjualan stok tersebut di mana akaun-akaun adalah diteliti dan diaudit oleh juruaudit dan akauntan Plaintif. (v) Plaintif akan dipampas (reimbursed) daripada Akaun Bersesama tersebut menurut kos pembelian dan marjin yang ditetapkan seperti berikut: Buku-buku Jurnal, periodical journals dan lain-lain Plaintif 40% 60% Defendan 60% 40% 2.5 Adalah menjadi dakwaan Plaintif di dalam Penyata Tuntutannya bahawa bayaran terakhir dibuat kepada Plaintif oleh Defendan adalah pada 30.9.1994. 2.6 Adalah menjadi dakwaan Plaintif juga bahawa pada sekitar Oktober 1994, Plaintif mendapati Defendan telah mengingkari perjanjian tersebut dan dengan secara frod telah tidak memampas Plaintif jumlah yang sebenar yang sepatutnya diberikan menurut perjanjian tersebut. 2.7 Adalah menjadi dakwaan Plaintif bahawa Plaintif memohon dan menuntut daripada Defendan jumlah pampasan sepatutnya diterima Plaintif daripada Akaun Bersesama tersebut. 2.8 Kegagalan pembayaran oleh Defendan telah mengakibatkan tindakan ini diambil oleh Plaintif terhadap Defendan untuk satu perintah pengakaunan (to account) segala penerimaan hasil jualan stok di bawah perjanjian tersebut dan membayar Plaintif bayaran yang sepatutnya diterima oleh Plaintif. [3] Defendan walau bagaimanapun telah menentang tindakan Plaintif dan menimbulkan pembelaan bahawa Plaintif tidak memberi gambaran yang sebenar dan tepat mengenai Akaun Bersesama tersebut yang mana iaitu seperti berikut: (i) Akaun Bersesama tersebut bukanlah dikendalikan atau diuruskan oleh Defendan secara bersendiri tetapi adalah akaun yang dikendali dan diuruskan bersama oleh Plaintif dan Defendan di mana Plaintif telah menempatkan 4 orang pekerja Plaintif di tempat Defendan bagi tujuan pengendalian dan pengurusan Akaun Bersesama tersebut. (ii) Adalah menjadi syarat perjanjian bahawa wang di dalam Akaun Bersesama hanya boleh dikeluarkan dengan tandatangan kedua-dua penandatangan yang diwajibkan dan diberi kuasa untuk memgendalikan akaun tersebut. Kedua-dua penandatangan tersebut adalah terdiri dari seorang wakil Plaintif dan salah seorang pengarah yang dinamakan oleh Defendan. (iii) Pada semua masa yang matan, Plaintif melalui kakitangannya telah mengambil dan mempunyai kawalan persendirian (sole control) antara lain atas kesemua akaun-akaun, buku-buku, kaki-kaki cek dan dokumen-dokumen berkaitan perjanjian tersebut, Malahan kesemua butiran-butiran dokumentar tersebut masih disimpan dan di dalam kawalan Plaintif sehingga kini. (iv) Plaintiflah yang sebenarnya telah gagal memperincikan laporan Akaun Bersesama tersebut walaupun permintaan berulangkali dibuat oleh Defendan. (v) Defendan mendakwa segala hasil jualan stok telah dimasukkan ke dalam Akaun Bersesama tersebut. [4] Di dalam penyata pembelaannya, Defendan juga telah memplidkan bahawa perjanjian tersebut telahpun tamat pada tahun 1993 apabila tidak ada lagi urusan berkenaan perjanjian tersebut sejak pertengahan tahun 1993 dan oleh yang demikian tuntutan yang difailkan Plaintif adalah dihalang oleh batasan masa enam tahun menurut seksyen 6 Akta Had Masa 1953. Undang-undang mengenai permohonan di bawah Aturan 18 Kaedah 19 KKM 2012 [5] Undang-undang mengenai kuasa budi bicara mahkamah di dalam pembatalan tindakan di bawah Aturan 18 Kaedah 19 (A.18 k.19) KKM 2012 adalah jitu dan mantap. Terlalu banyak otoriti yang telah membincangkan dan memutuskan prinsip-prinsip pemakaian kuasa budi bicara mahkamah di bawah A.18 k.19 ini. Memadai sekiranya mahkamah ini merujuk kepada beberapa kes sebagai panduan dan rujukan. [6] Di dalam kes Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, prinsip-prinsip undang-undang mengenai kuasa budi bicara mahkamah di bawah A.18 k.19 ini telah diterangkan dengan begitu jelas oleh Mohamed Dzaiddin HMA (YAA pada ketika itu) seperti berikut: “It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it clearly seen that a claim or answer is on the face of it “obviously unsustainable” (see AG of Duchy of Lancaster v L & NWRly & Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r 3 (which is in pari material with our Order 33 r 2 of the RHC)(see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [7] Manakala Vincent Ng H (YA ketika itu) dalam kes Suppuletchemi v Palmco Bina Sdn Bhd [1994] 2 AMR 1191, di muka surat 1205 penghakimannya telah berkata: “But in an application under Order 18 r 19 or Order 14, it is still incumbent upon the court to determine whether issues could more appropriately have been decided, without the expence of a full trial with a witnesses and expenditure of the court’s invaluable time. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits. The crucial question the court would have to ask itself in applications under Order 14 or Order 18 r 19(1)-(d) is first, whether the piece or pieces of evidence essential to make out the reasonable prima facie cause of action or a prima facie triable issue of fact are of the nature such that they are adduceable by affidavit evidence; and secondly – if the answer to this question is in the positive – whether such essential prima facie evidence had been so adduced in the supporting affidavits. Such affidavits ought not to contain bare averments but must condescend or come definitely into particulars fro serious argument such that they are sufficient to satisfy the court that there is a reasonable prima facie cause of action or triable issue or issue of fact or law in the defence as the case may be. …the court must and ought to look at the whole situation and ask itself whether the plaintiff (in an application to strike off a claim) has satisfied the court that he has a bona fide or prima facie cause of action,…” [8] Di dalam kes Mooney & Ors v Peat Marwick Mitchell & Co & Anor [1967] 1 MLJ 87 Raja Azlan Shah J (DYMM pada ketika itu) di muka surat 88 telah menyatakan seperti berikut: “It is firmly established that the power exercisable under r. 4 “is only appropriate in cases which are plain and obvious so that a judge can say at once that a statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief of which he ask for”: See the judgment of Lindley MR in Hubbuck & Sons v Wilkinsons Heywood & Clark Ltd.(1) Where the situation arises, the pleadings and particulars alone shall be considered and all the allegations in it shall be presumed to be true, and it is only on that assumption that any statable case can be made for this application: see Peck v Russell.(2) The court cannot and indeed is not empowered to look behind the pleadings and particulars if it discloses a reasonable cause of action. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at trial is no ground for it to be struck out: see Boaler v Holder.(3) A recent exposition of the law is afforded by the judgment of Danckwerts LJ in Wenlock v Moloney.(4): “Under the rule (ie. O. 25 r. 4) it had to appear on the face of the plaintiff’s pleadings that the action could not succeed or was objectionable for some other reason. Not evidence could be filed… But, as the procedure was of a summary nature the party was not to be deprived of his right to have his case tried by a proper trial unless the matter was clear.’’ After stating that the former rules are now incorporated in the revised Rules of the Supreme Court, O. 18 r. 19, he continues: “But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.” …” [9] Berbalik kepada permohonan di hadapan mahkamah ini, benarkah seperti yang dihujahkan oleh peguam bijaksana bagi pihak Defendan bahawa kes ini adalah suatu kes yang sesuai dan patut bagi mahkamah ini menggunakan kuasa budi bicaranya di bawah A.18 k.19 untuk membatalkan tuntutan Plaintif. [10] Bagi menyokong permohonannya di Kandungan 10, Defendan telah memfailkan dua afidavit yang diikrarkan oleh Ahmad Ali bin Abdul Me Min, Pengarah Urusan Defendan bertarikh 14.7.2014 (Kandungan 11) dan 8.8.2014 (Kandungan 13). [11] Defendan telah memohon Mahkamah ini membatalkan tuntutan Plaintif terhadap Defendan atas dua (2) alasan yakni: (i) tuntutan Plaintif yang telah difailkan pada 25.8.2000 adalah dihalang oleh batasan masa enam tahun. (ii) memandangkan tindakan ini telah difailkan pada tahun 2000 dan setelah hampir 14 tahun Plaintif tidak mengambil apa-apa langkah untuk meneruskan tindakannya sehinggalah pada tahun 2014 Plaintif baru memfailkan dokumen-dokumen bagi membangkitkan kembali tindakannya, maka dengan ini terdapat kelewatan dan kelengahan yang melampau di pihak Plaintif di dalam meneruskan tindakan ini terhadap Defendan yang mana Plaintif telah berdiam diri dan duduk di atas haknya selama 14 tahun. Plaintif justeru itu telah akuisens ‘acquiescence’ akan haknya itu dan Plaintif hendaklah dihalang daripada meneruskan tindakan terhadap Defendan kerana kelewatan dan kelengahan melampau ini telah memprejudiskan Defendan. [12] Adalah dihujahkan bagi pihak Defendan bahawa tuntutan Plaintif untuk satu perintah pengakaunan (to account) hasil yang diperolehi daripada perjanjian usahasama yang dimasuki secara lisan pada tahun 1991 dan pembayaran jumlah hasil yang gagal dibayar oleh Defendan kepadanya adalah dihalang oleh batasan masa kerana perjanjian itu telah pun ditamatkan pada pertengahan tahun 1993. Menurut Defendan selepas pertengahan tahun 1993 tiada sebarang lagi hubungan kontraktual di antara Plaintif dan Defendan. Peguam terpelajar Defendan telah menghujahkan bahawa kausa tindakan Plaintif ini adalah berasaskan kontrak dan apabila tiada lagi urusan perniagaan antara kedua Plaintif dan Defendan serta terputusnya hubungan kontaktual tersebut, maka kausa tindakan bermula atau terakru pada pertengahan tahun 1993. Plaintif yang hanya telah memfailkan tindakan ini pada 25.8.2000 yakni tujuh (7) tahun daripada kausa tindakan terakru, maka tuntutan Plaintif adalah dihalang oleh batasan masa menurut Seksyen 6 Akta Had Masa 1953. [13] Malahan menurut peguam Defendan lagi, sekiranya dokumen-dokumen Plaintif dirujuk, transaksi terakhir Plaintif dan Defendan adalah pada tahun 31.12.1992 dan dengan itu dapat dilihat bahawa tindakan Plaintif sememangnya adalah dihalang oleh batasan masa. Untuk menyokong hujahannya, peguam telah merujuk kepada kes Hj Husin Hj Ali & Ors v Datuk Hj. Mohamed Yaacob & Ors & Other cases [1983] CLJ (Rep) 165. [14] Peguam Defendan juga telah menghujahkan bahawa Plaintif telah melengah-lengah tindakannya selama tempoh hampir 14 tahun yang mana selepas pemfailan tindakan ini pada tahun 2000, selain daripada Notis Pra Perbicaraan Pengawasan Kes bertarikh 25.4.2001 yang dieksibitkan di dalam Afidavit Jawapan Plaintif, Plaintif telah tidak berbuat apa-apa untuk meneruskan tindakannya. Plaintif telah hanya memfailkan dokumen-dokumen sewajarnya untuk perbicaraan pada tahun 2014. Justeru itu, terdapat kelewatan yang tidak munasabah dan kelengahan melampau di pihak Plaintif di dalam menegakkan haknya. Peguam Defendan telah menghujahkan bahawa Plaintif telah akuisens ‘acquiescence’ akan haknya dan pihak Defendan telah bergantung kepada akuisens ‘acquiescence’ Plaintif tersebut, maka Plaintif sewajarnya dihalang daripada meneruskan tindakannya terhadap Defendan. Di samping itu juga, kelewatan tidak munasabah dan kelengahan melampau Plaintif itu telah memprejudiskan Defendan iaitu: (i) masa yang begitu lama dan panjang mengakibatkan Defendan telah tidak dapat mengambil tindakan yang munasabah serta menyukarkan Defendan untuk membela tindakan terhadapnya. (ii) tempoh masa 13 tahun yang begitu panjang ini tidak membolehkan Defendan mencari bukti dokumen atau keterangan untuk mengemukakan pembelaan yang lengkap dan penuh terhadap tuntutan Plaintif terhadapnya. (iii) tempoh masa yang begitu panjang tidak membolehkan Defendan mencari saksi-saksi bagi menegakkan pembelaan Defendan untuk membela tindakan ini. (iv) Defendan terpaksa membuat semakan atas dokumen-dokumen yang tidak boleh dikesan dan terdapat saksi-saksi yang disenaraikan untuk dipanggil Defendan telahpun meninggal dunia. (v) empat kakitangan Plaintif yang ditempatkan di tempat Defendan tidak dimaklum sama ada masih bekerja dengan Plaintif atau sebaliknya. (vi) memandangkan akaun yang dibuka adalah Akaun Bersesama dan juga dikendalikan oleh empat pekerja Plaintif, dokumen-dokumen dan laporan-laporan tidak ada di dalam milikan Defendan, tetapi berada di dalam milikan Plaintif. Defendan perlu mengesan pembuat dokumen-dokumen dan laporan-laporan tersebut dan usaha-usaha mengesannya sememangnya sukar bagi Defendan untuk melaksanakannya. [15] Peguam Defendan juga telah menghujahkan bahawa Plaintif telah gagal memberi penjelasan yang memuaskan dan menasabah bagi kelewatan tidak munasabah dan kelengahan melampau ini. Untuk ini, peguam Defendan telah merujuk kepada keputusan Mahkamah Persekutuan di dalam kes Vasudevan v T.Demodevan & Anor [1981] 2 MLJ 150 dan juga kes Peak Hua Industries Bhd v Peak Hua Holdings Bhd & Ors [2005] 6 MLJ 266. [16] Plaintif telah menentang permohonan Defendan dengan memfailkan Afidavit Jawapan yang diikrarkan oleh Mazlina Merican iaitu Pengurus Kanan Plaintif (Kandungan12). [17] Plaintif telah menafikan tindakannya dihalang batasan masa dan menegaskan bahawa tindakannya terhadap Defendan bukan sahaja berdasarkan kepada perjanjian usahasama lisan yang dimasuki oleh kedua pihak tetapi juga terhadap pengendalian Akaun Bersesama tersebut. [18] Peguam terpelajar Plaintif telah menghujahkan bahawa kausa tindakan tidak bermula dari tarikh perjanjian tetapi dari tarikh berlakunya perlanggaran perjanjian yakni apabila Defendan telah memperolehi atau mengutip hasil jualan stok dan gagal menyerahkan hasil perolehan yang sepatutnya kepada Plaintif. Bagi tujuan penentuan bilakah berlakunya perlanggaran ini, adalah dihujahkan bagi pihak Plaintif bahawa ianya adalah persoalan fakta yang hanya boleh ditentukan oleh mahkamah di dalam perbicaraan penuh dengan pemanggilan saksi-saksi. [19] Adalah juga telah dihujahkan seterusnya bagi pihak Plaintif bahawa memandangkan Akaun Bersesama itu berteraskan amanah maka adalah menjadi kewajipan dan tanggungjawab Defendan untuk menunjukkan Akaun Bersesama secara tulus dan bona fide. Plaintif selanjutnya menghujahkan bahawa Akaun Bersesama tersebut telah mengwujudkan pertanggungjawaban amanah dan fidusiari ke atas Defendan yang memerlukan Defendan memberi keterangan di dalam perbicaraan penuh bagi perkara-perkara berikut: i. bilakah stok-stok yang dibekalkan oleh Plaintif itu telah terjual oleh Defendan?; dan ii. kepada siapakah stok-stok itu dijual oleh Defendan?; dan iii. pada harga apakah stok-stok itu dijual oleh Defendan?; dan iv. bilakah hasil jualan dikutip oleh Defendan?; dan v. samada setiap hasil kutipan dimasukkan ke dalam Akaun Bersesama oleh Defendan?; dan vi. adakah dari hasil kutipan tersebut, bahagian kepunyaan Plaintif telah diagihkan kepadanya?. [20] Dengan kewujudan tanggungjawab fidusiari, amanah (trust) dan pengamanahan (trustee) ini, peguam terpelajar Plaintif menghujahkan bahawa bahawa batasan masa tidak terpakai kepada tuntutan Plaintif dan Plaintif bergantung kepada kepada seksyen 22 Akta Had Masa 1953. Untuk hujahan ini, Plaintif telah bergantung juga kepada kes-kes berikut: i. ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2004] 4 CLJ 674. ii. Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 CLJ 278. iii. Takako Sakao v Ng Pek Yuen & Ors [2010] 1 CLJ 381. [21] Plaintif juga mendakwa bahawa wujud perlakuan frod di pihak Defendan dan ini diketahui berlakunya pada sekitar bulan Oktober 1994 apabila pembayaran terakhir dibuat oleh Defendan pada 30.9.1994 berjumlah RM3000.00 di mana Plaintif telah mendapat tahu bahawa Defendan tidak meremitkan sepenuhnya hasil yang sepatutnya diterima oleh Plaintif ke dalam Akaun Bersesama. Di dalam hal frod ini, peguam Plaintif menghujahkan bahawa memandangkan Plaintif telah hanya mengetahui perlakuan frod tersebut pada Oktober 1994 dan Defendan yang tidak memplidkan bahawa perlakuan frod itu berlaku lebih awal dari Oktober 1994, maka kausa tindakan Plaintif telah hanya terakru pada Oktober 1994 dan memandangkan tindakan ini telahpun difailkan pada 25.8.2000, oleh itu menurut seksyen 29 Akta Had Masa 1953, tuntutan Plaintif adalah di dalam tempoh masa enam tahun. [22] Plaintif telah menafikan bahawa terdapatnya kelewatan tidak munasabah dan kelengahan melampau di pihaknya di dalam meneruskan tindakan. Menurut Plaintif, pada 25.4.2001 Plaintif telahpun memfailkan Notis untuk menghadiri Pra Perbicaraan Pengawasan Kes dan notis ini telah dieksibitkan sebagai Eksibit ‘MM-3’ di dalam Kandungan 12. [23] Di samping itu di perenggan 14 Kandungan 12, Plaintif telah meletakkan kesalahan kelewatan tersebut ke atas mahkamah dengan menyatakan bahawa kelewatan yang timbul adalah disebabkan fail yang tidak dapat dikesan atau hilang. Isu batasan masa [24] Untuk menentukan samada tuntutan Plaintif adalah dihalang masa atau tidak, mahkamah terlebih perlu menentukan apakah sebenarnya tuntutan Plaintif terhadap Defendan dan bilakah kausa tindakan itu bermula atau terakru. Mahkamah di awal penghakiman telah menyatakan bahawa relif yang dituntut oleh Plaintif adalah satu perintah pengakaunan dan terbit dari pengakaunan tersebut menuntut Defendan membayarnya jumlah hasil yang sepatutnya dibayar oleh Defendan hasil dari penjualan stok. Mahkamah ini berpendapat bagi memberi gambaran yang lebih jelas tentang apa yang sebenarnya telah diplidkan oleh Plaintif di dalam penyata tuntutannya bagi menuntut haknya atas obligasi Defendan di dalam perjanjian tersebut, perenggan-perenggan yang relevan perlu diperturunkan. Perenggan-perenggan yang relevan tersebut adalah perenggan 6,7dan 8 dan diperturunkan di bawah ini. 6. Defendan telah untuk kali terakhir membuat bayaran sebahagian kepada Plaintif sejumlah RM3,000.00 melalui cek PAB bernombor 708210 pada atau lebih kurang 30.9.1994 terhadap jumlah yang terhutang kepada Plaintif dan yang Plaintif berhak di bawah Perjanjian tersebut. 7. Pada atau lebih kurang Oktober 1994, Plaintif mendapati bahawa Defendan telah secara frod dan berlanggaran Perjanjian tersebut tidak menghantar dan memasukkan jumlah sepenuhnya hasil jualan Stok ke dalam Akaun Bersesama tersebut. 8. Plaintif telah kemudiannya meminta dan menuntut Defendan untuk memberi akaun kepada Plaintif untuk hasil jualan dan juga bahagian marjin untung yang Plaintif berhak di bawah Perjanjian tersebut tetapi secara salah dan berlanggaran Perjanjian tersebut, Defendan telah gagal untuk memberi akaun kepada Plaintif secara yang diminta oleh Plaintif atau sama sekali. [25] Namun begitu, setelah Defendan di dalam penyataan pembelaannya menafikan tuntutan Plaintif dan mengemukakan pengataan bahawa Akaun Bersesama itu bukanlah urusan Defendan secara bersendiri tetapi di bawah pengendalian bersama-sama Plaintif dan Defendan di mana Plaintif sendiri telah menempatkan empat pekerjanya ke tempat Defendan bagi urusan Akaun Bersesama tersebut, dan akaun-akaun dan laporan-laporan diaudit oleh juruaudit dan akauntan Plaintif sendiri. Plaintif telah di dalam Jawapan kepada Pembelaan telah memplidkan pengataan-pengataan berikut pula: 2.3 Defendan telah secara frod dan berlanggaran dengan Perjanjian tersebut tidak menghantar dan tidak memasukkan jumlah sepenuh bayaran hasil-hasil jualan Stok yang diterima daripada pelanggan-pelanggan/ pembeli-pembeli ke dalam Akaun Bersesama (seperti yang ditakrifkan dalam Penyata Tuntutan). Butir-Butir a. Defendan telah menggunakan hasil-hasil jualan tersebut untuk tujuannya sendiri tanpa sebarang akaun kepada Plaintif. b. Defendan telah memasukkan hasil-hasil jualan tersebut atau sebahagiannya ke dalam akaun banknya sendiri. 2.4 Hasil jualan yang tidak diakaunkan sedemikian (such unaccounted for sale proceeds) telah diterima oleh Defendan, setakat mana bahagian yang Plaintif berhak di bawah Perjanjian tersebut, bagi atau untuk kegunaan Plaintif (for or to the use of the Plaintiff). [26] Daripada pliding yang difailkan oleh Plaintif, boleh disimpulkan bahawa aduan Plaintif terhadap Defendan adalah Defendan tidak memasukkan jumlah sepatut dan sepenuhnya bayaran hasil-hasil jualan stok yang diterima daripada pelanggan ke dalam Akaun Bersesama tersebut dan telah menggunakan hasil-hasil tersebut untuk tujuan sendiri. [27] Justeru apakah sebenarnya kausa tindakan Plaintif atau apakah asas tuntutan Plaintif daripada pliding tersebut dan apakah hak yang mahu dikuatkuasakan Plaintif dan bila hak ini bermula? [28] Secara prinsipnya had masa akan hanya bermula apabila kausa tindakan terakru dan timbul di atas Plaintif. Bila sesuatu kausa tindakan itu terakru atau bermula telah dinyatakan oleh Sir Binod Mitter di dalam kes Bolo v Koklan AIR 1930 PC 270 di muka surat 331 yang telah dirujuk oleh Mahkamah Persekutuan di dalam kes Nasri v Mesah [1971] 1 MLJ 32 dan dipetik di sini: “There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” [29] Di dalam kes Nasri v Mesah [1971] 1 MLJ 32, telah diputuskan oleh Mahkamah Persekutuan bahawa bagi tindakan-tindakan perlanggaran kontrak atau perjanjian, had masa di bawah Akta Had Masa 1953 bermula dari tarikh perlanggarannya. Di dalam kes ini Gill HMP (YAA pada masa itu) setelah merujuk kepada kata-kata Sir Binod Mitter di dalam kes Bolo v Koklan telah menjelaskan frasa kausa tindakan dengan berkata di muka surat 34: “A ‘cause of action’ is the entire set of fact that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the Plaintiff must prove in order to obtain judgment (per Lord Esher MR in Read v Brown (1888) 22 QBD 128 at p 131.) In Reeves v Butcher [1891] 2 QB 509 at p 511 Lindley LJ said: ‘This expression, “cause of action”, has been repeatedly the subject of decision, and it has been held, particularly in Hemp v Garland LR 4 QB 519, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.’ In Board of Trade v Cayzer, Irvine & Co [1927] AC 610, Viscount Dunedin described “cause of action” as that which makes action possible. Now, what makes possible an action founded on a contract is its breach. In other words, a cause of action founded on a contract accrues on the date of its breach. Similarly, the right to sue on a contract accrues on its breach. In the case of actions founded on contract, therefore, time runs from breach (per Field J in Gibbs v Guild 8 QBD 296 at p 302). In the case of actions founded on any other right, time runs from the date on which that right is infringed or there is a threat of its infringement (see Bolo’s case). It would seem clear, therefore, that the expressions ‘the right to sue accrues’, the cause of action accrues’ and ‘the right of action accrues’ mean one and the same thing when one speaks of the time from which the period of limitation as prescribed by law should run.” (Penekanan oleh mahkamah ini) [30] Di dalam kes ini, pihak-pihak tidak mempertikaikan bahawa perjanjian yang dimasukki adalah perjanjian usahasama secara lisan dan kedua-dua pihak bersetuju bahawa Plaintif akan dipampas (reimbursed) menurut kadar-kadar marjin yang dipersetujui dan Plaintif akan dibayar daripada hasil jualan stok yang diperolehi oleh Defendan. Untuk mendakwa bahawa terdapatnya pemecahan obligasi di pihak Defendan di bawah perjanjian tersebut, apa yang Plaintif telah lakukan hanyalah membuat dakwaan bahawa Defendan telah tidak membayar jumlah yang sepatutnya kepadanya tanpa merujuk kepada mana-mana dokumen yang menunjukkan Defendan tidak membayar jumlah yang sepatutnya. Plaintif hanya telah mengatakan bahawa bayaran terakhir Plaintif terima daripada Defendan adalah sekeping cek PAB 708210 pada 30.9.1994 berjumlah RM3000.00 dan sekitar Oktober 1994 mendapati terdapat perlakuan frod Defendan yang tidak memasukkan jumlah sepenuhnya ke dalam Akaun Bersesama. [31] Di dalam keadaan di mana dakwaan yang dibuat oleh Plaintif hanya sekadar pengataan semata-mata tanpa merujuk kepada mana-mana dokumen yang menunjukkan Defendan tidak membayar jumlah yang sebenarnya kepada Plaintif, maka persoalannya adakah ini memadai untuk menunjukkan kausa tindakan Plaintif bermula pada waktu itu seperti dihujahkan oleh peguam Plaintif. Benarkah Plaintif telah mengetahui kononnya perlakuan frod itu pada Oktober 1994, sedangkan tidak ada langsung dokumen menunjukkan sedemikian bagi menyokong pengataannya. Sekiranya benarlah Plaintif telah mengetahui pada sekitar Oktober 1994 bahawa Defendan telah gagal membayarnya jumlah yang sebenarnya kepadanya, perkara yang paling wajar dan masuk akal ‘sensible’ dibuat oleh Plaintif apabila haknya terhadap jumlah yang sebenar dilanggar ‘infringed’ adalah mengemukakan atau mengeluarkan notis tuntutan kepada Defendan untuk mengakaunkan hasil sebenarnya yang diterima ataupun menuntut supaya Defendan membayar kepada Plaintif jumlah yang sepatutnya dibayar. Dengan pengeluaran notis sedemikian bolehlah dibuat satu penentuan bahawa kausa tindakan Plaintif bermula pada tarikh tersebut apabila Plaintif menyedari bahawa Defendan telah tidak bertindak jujur. Tidak ada sebarang dokumen pun telah dieksibitkan oleh Plaintif di dalam Afidavit Jawapannya untuk menunjukkan sedemikian. Ketidakwujudan apa-apa dokumen untuk menyokong pengataan Plaintif bahawa Plaintif mengetahui bahawa jumlah sebenarnya tidak dibayar oleh Defendan menjadikan pengataan Plaintif sebagai pengataan kosong semata-mata. [32] Undang-undang adalah mantap bahawa untuk Plaintif mendakwa perlakuan frod atau tidak jujur oleh Defendan, Plaintif bukan sahaja perlu memplidkan perlakuan frod atau tidak jujur Defendan tersebut, tetapi Plaintif hendaklah juga memberi butiran-butiran terperinci perlakuan tersebut. Memplid frod atau tidak jujur semata-mata tanpa memberi butiran bagaimana dan keadaan perlakuan frod atau tidak jujur tersebut dilakukan adalah tidak mencukupi dan memadai. Prinsip undang-undang mengenai pliding berkenaan ini boleh dirujuk kepada pemerhatian yang telah dibuat oleh Mohamed Dzaiddin HMP (YAA ketika itu) di dalam kes United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 2 AMR 1561 di mana di muka surat 1572-1573, YAA telah menyatakan berikut: “On counsel’s submission that the defence did not consist of bare allegation of fraud but the defendants had sufficiently explained it in the defence, it is a settled rule of practice that where fraud and dishonesty is material, this must be clearly pleaded, if not explicitly, then in such terms that the reader of the pleading can be left in no reasonable doubt what is being alleged. Further, where an element in the alleged fraud or dishonesty relied on is the other party’s knowledge of a given fact or state of affairs, this must be explicitly pleaded (Lipkin Gorman v Karpnale Ltd [1989] FLR 137; [1992] 4 All ER 409, CA). In the instant case, we can only look at the defence since the supporting affidavit was rejected by the trial Judge. On this basis, it is clear to us that paragraphs 5 and 6 of the defence do not candescent to particulars of all alleged fraud. Merely pleading that even it the two fixed deposit receipts were issued and renewed (which the defendants denied) and that they had been done so without due authority and/ or in fraud of the defendants is not enough. The defendants must state with sufficient particularity the circumstances how the two fixed deposit receipts were allegedly issued in fraud of the defendants. For the above reason and in the light of the principles of pleading which must be duly observed, we cannot agree with counsel’s contention that the defence contains a sufficient plea of fraud.” (penekanan oleh mahkamah ini) [33] Berpandukan kes United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor, adalah dapatan mahkamah ini bahawa di dalam kes ini hujahan peguam Plaintif yang kausa tindakan bermula pada Oktober 1994 apabila Plaintif pada masa itu telah mengetahui perlakuan frod atau tidak jujur Defendan di mana Defendan telah tidak membayarnya hasil sebenar dari penjualan stok adalah tidak dapat diterima kerana ianya adalah sekadar pengataan kosong yang tiada sokongan dan tiada butiran-butiran mengenainya dan pengataan sebegitu tidak mencukupi atau memadai untuk suatu dakwaan atau pli perlakuan frod oleh Defendan. [34] Di dalam keadaan ini, apabila dakwaan atau pli Plaintif atas perlakuan frod atau tidak jujur Defendan tidak dapat dipertahankan, bilakah sebenarnya kausa tindakan Plaintif terakru atau bermula? Mahkamah ini telah membuat penelitian ke atas dokumen-dokumen Plaintif dan setelah meneliti secara terperinci dokumen-dokumen Plaintif di Eksibit ‘MM-1’ dari muka surat 1-298 dan Eksibit ‘MM-2’ dari muka surat 299-723 dalam Afidavit Jawapan Plaintif di mana dokumen-dokumen tersebut adalah bukti pembekalan stok kepada Defendan dan bayaran-bayaran yang telah dibayar kepada Plaintif oleh Defendan yang telah dikemukakan oleh Plaintif bagi membuktikan kesnya terhadap Defendan, mahkamah ini bersependapat dengan peguam Defendan bahawa ternyata dari dokumen-dokumen tersebut transaksi terakhir yang direkodkan adalah bertarikh 31.12.1992 iaitu di muka surat 634-689 Eksibit ‘MM-2’. Selepas daripada 31.12.1992, tiada lagi rekod yang menunjukkan hubungan kontraktual di antara Plaintif dan Defendan. Di dalam hal ini, Plaintif telah cuba bergantung kepada baucer bayaran yang dikeluarkan oleh Defendan atas cek 708210 yang dikatakan bertarikh 30.9.1994 tetapi apabila Mahkamah ini meneliti baucer tersebut di muka surat 723 Eksibit ‘MM-2’ baucer tersebut adalah baucer yang tidak bertarikh atau tidak mempunyai tarikh. Malahan kononnya di muka surat 722 Eksibit ‘MM-2’, Plaintif telah meletakkan indeks dokumen bahawa terdapatnya resit rasmi yang dikeluarkan oleh Plaintif pada 7.9.1994 kepada Defendan di muka surat 724 tetapi sebenarnya didapati tidak ada muka surat 724 ataupun resit rasmi itu tidak dieksibitkan di Eksibit ‘MM-2’. [35] Dalam keadaan pliding dan afidavit Plaintif yang sedemikian, mahkamah ini tidak dapat tidak bersetuju dengan Peguam Defendan bahawa kausa tindakan Plaintif telah bermula apabila hubungan kontraktual di antara Plaintif dan Defendan berakhir apabila tiada lagi transaksi antara keduanya pada pertengahan tahun 1993. Plaintif sendiri telah tidak menafikan langsung atau menentang balas perenggan 12 Penyata Pembelaan Defendan yang memplidkan bahawa perjanjian tersebut telahpun tamat dalam pertengahan tahun 1993 dan tiada lagi sebarang urusan berkenaan Perjanjian tersebut selepas itu. Kalau dirujuk kepada Eksibit ‘MM-2’ yang merupakan dokumen-dokumen Plaintif bagi menyokong tuntutannya terhadap Defendan, melalui perjanjian usahama itu terbentuk satu hubungan kontraktual di antara Plaintif dan Defendan bagi pembelian stok oleh Plaintif dan pengedaran serta penjualan stok oleh Defendan dengan hasil perolehan penjualan stok dibahagikan mengikut marjin yang dipersetujui. Apabila tiada lagi transaksi antara keduanya pada pertengahan tahun 1993 yang mana Plaintif tidak lagi membuat pembelian dan tidak ada lagi penjualan, makanya hubungan kontraktual itu telah pun berakhir. Adalah dapatan mahkamah ini bahawa apa-apa aduan atau ketidakpuasan atau perlanggaran obligasi pihak-pihak di bawah perjanjian tersebut hendaklah dibuat atau dituntut dalam tempoh enam tahun dari tarikh berakhirnya perjanjian ini. Tambahan pula, dokumen-dokumen Plaintif sendiri menunjukkan bahawa transaksi terakhir yang direkodkan adalah pada 31.12.1992 dan tiada dokumen yang menujukkan tarikh terkemudian dari itu, yang dalam tempoh enam tahun ke 25.8.2000, maka, dengan ini apabila tindakan ini difailkan oleh Plaintif pada 25.8.2000, tindakan Plaintif sememangnya di luar had masa enam tahun yang diperuntukkan oleh seksyen 6 Akta Had Masa 1953. [36] Perlu juga dinyatakan bahawa penentuan isu had masa di dalam kes ini tidak memerlukan pemutusannya dibuat dengan pemanggilan saksi-saksi di suatu perbicaraan penuh yang pastinya akan melibatkan kos pihak-pihak dan masa berharga mahkamah ini kerana melalui pliding-pliding dan afidavit yang difailkan, isu had masa sudah boleh ditentukan oleh mahkamah seperti yang telah diputuskan di atas tadi. (sila lihat kes Suppuletchemi v Palmco Bina Sdn Bhd [1994] 2 AMR 1191) Isu amanah dan tanggungjawab fidusiari Defendan yang dibangkitkan oleh Plaintif [37] Peguam Plaintif di dalam menegaskan bahawa tuntutan Plaintif tidak dibatasi oleh had masa telah juga menghujahkan bahawa tuntutannya terhadap Defendan bukan hanya setakat hubungan kontraktual yang timbul atau terbit dari perjanjian usahasama lisan tersebut tetapi juga adalah berdasarkan tugas fidusiari dan amanah Defendan di dalam mengendali dan menguruskan Akaun Bersesama tersebut. Menurut peguam terpelajar Plaintif lagi apabila Defendan gagal mengakaunkan hasil yang diperolehi oleh Defendan daripada penjualan stok dengan jujur dan bona fide, maka terdapat pemecahan tugas fidusiari dan amanah di pihak Defendan. Peguam Plaintif telah bersandar kepada pengamanahan yang timbul dari Akaun Bersesama dan telah menghujahkan bahawa seksyen 22 Akta Had Masa 1953 terpakai di mana tiada batasan masa terhadap kes-kes berasaskan pengamanahan atau amanah. [38] Di sebaliknya, Peguam terpelajar Defendan telah berhujah balas bahawa di dalam Penyata Tuntutan Plaintif tidak langsung memplidkan bahawa Akaun Bersesama itu adalah akaun amanah. Menurut Peguam Defendan lagi, perkara mengenai akaun amanah ini hanya telah ditimbulkan oleh Plaintif di dalam penghujahan bertulis peguamnya. Di samping itu Defendan menafikan dengan keras bahawa Akaun Bersesama tersebut adalah akaun amanah seperti yang ditimbulkan peguam Plaintif tetapi merupakan Akaun Bersesama yang dibuka bagi tujuan perakaunan hasil jualan daripada stok tersebut. Menurut Defendan, Akaun Bersesama tersebut bukanlah dikendali atau dikawal sepenuhnya dan secara sole control oleh Defendan untuk menimbulkan tanggungjawab fidusiari dan amanah di pihak Defendan. Adalah ditegaskan bagi pihak Defendan bahawa Akaun Bersesama tersebut ia adalah dikendali dan diuruskan bersama-sama oleh Plaintif dan Defendan. Malahan menurut Defendan lagi untuk operasi Akaun Bersesama tersebut Plaintif telah menempatkan empat (4) orang pekerja bernama Rajmah Shaari dan Faridah Ayob (Bahagian akaun), Zakaria Yusof (Bahagian Penghantaran) dan Mary Verghese (Bahagian Journal) di tempat Defendan. Seterusnya menurut Defendan lagi, adalah merupakan prasyarat perjanjian tersebut bahawa laporan bulanan adalah disediakan bersama-sama bagi segala hasil jualan yang diterima daripada penjualan stok tersebut di mana akaun-akaun adalah diteliti dan diaudit oleh juruaudit dan akauntan Plaintif sendiri. Adalah selanjutnya dihujahkan oleh peguam Defendan lagi, pengataan-pengataan mengenai penempatan empat pekerja Plaintif dan akaun-akaun diaudit oleh juruaudit dan akauntan Plaintif sendiri tidak langsung dinafikan oleh Plaintif di dalam plidingnya ataupun Afidavit Jawapannya bagi menentang permohonan Kandungan 10. [39] Mahkamah ini bersependapat dengan peguam Defendan bahawa pengataan Akaun Bersesama itu adalah akaun amanah sememangnya tidak diplidkan oleh Plaintif di dalam plidingnya. Undang-undang adalah mantap dan jitu bahawa Plaintif adalah terikat dengan plidingnya. (Sila lihat i. Janagi v Ong Boon Kiat [1971] 1 LNS 42. ii. Superitendent of Lands and Surveys Department Bintulu Division & Anor v Agiak Bungkng & Ors [2012] 1 MLJ 335. iii. RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. iv. The Chartered Bank v Yong Chan [1974] 1 MLJ 157. v. Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322. vi. State Government of Perak v Muniandy [1986] 1 MLJ 490. vii. Astrovlanis Compania Naviera AS v Linard [1972] 2 QB 611, [1972] 2 All ER 647. viii. Spedding v Filzpatrick 1888 38 Ch D 410 at p 413. ix. Thomson v Birkley (1882) 31 WR 230. x. Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 4 CLJ 283.) [40] Namun begitu, walaupun isu Akaun Bersesama berkonsepkan amanah atau pengamanahan ini tidak langsung diplidkan oleh Plaintif di dalam plidingnya tetapi bagi maksud kesempurnaan, mahkamah ini akan menentukan juga isu ini berdasarkan pliding dan afidavit-afidavit, sama ada betulkah bahawa Akaun Bersesama tersebut merupakan akaun amanah. Untuk itu, berapa kes berkenaan amanah atau pengamanahan adalah dirujuk. [41] Di dalam kes Yong Nyee Fan & Sons Sdn Bhd v Kim Guan & Co Sdn Bhd [1979] 1 MLJ 182, Hashim Yeop A Sani H (YAA pada ketika itu) di dalam membincangkan berkenaan amanah telah berkata di muka surat 188 seperti berikut: “It has been found difficult to give a satisfactory definition of a trust but it has been accepted that the most satisfactory definition is by Professor Keeton which definition is that a trust is the relationship which arises wherever a person called the trustee is compelled in equity to hold property, real or personal, and whether by legal or equitable title, for the benefit of some persons (whom he may be one) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee, but to the beneficiaries or other objects of the trust.”( penekanan oleh mahkamah ini) [42] Manakala Abdul Malik Ishak H ( YA ketika itu) di dalam kes Pathma d/o Naganather & Anor v Nivedita d/o Naganather [2002] 6 MLJ 361 di dalam membincangkan mengenai jenis-jenis amanah, samada amanah nyata, amanah konstruktif (constructive trust) dan amanah tersirat (implied trust), YA telah menyatakan berikut di muka surat 412: “At common law, there are three types of trusts that are recognized, namely, express, the implied and the contructive trusts. An express trust is created when the settler expressly creates the trust for the benefit of the third party or the settler himself as a beneficiary. An express trust can be created formally or informally. In a situation where the settler uses ‘clear and unequivocal words’ (Wan Naimah v Wan Mohamed Nawawai [1974] 1 MLJ 41) in order to manifest his intention to create the trust, there would not be a problem to determine the existence of the trust. An implied trust arises where the circumstances prevailing require the law to presume that a trust was intended to be in existence despite the absence of specific language creating an express trust. A unique example of such a trust would be the resulting trust. In essence, a resulting trust arises by presumption where one party buys a piece of property and registers it in the name of a second party in circumstances where the first party has supplied the money for the purchase. In this way, the registered proprietor is presumed to hold the property on trust for the person who has supplied the money. In Dharmaratna v Dharmaratna [1939] MLJ 310, the presumption that the property was a gift to the registered party was quite overwhelming where the first party that supplied the money was in loco parentis to the second party. A constructive trust, on the other hand, is sometimes referred to as an implied trust. A case in point would be where the court in exercising its equitable jurisdiction, impose a trust on a party who has the control of the property of which he is not entitles to. The trust is presumed to exist otherwise it would be difficult for a person claiming the beneficial interest to the property to stake him claim. It is pertinent to note that constructive trusts have developed by leaps and bounds (Boase v Cluny Rubber Estate Ltd [1913] 1 FMSLR 130; Paruvathy d/p Murugiah v Krishnan s/o Doraisamy [1983] 2 MLJ 121 and Muschinski v Dodds (1985) 160 CLR 503) over the years.” (Penekanan oleh mahkamah ini) [43] Berbalik kepada kes di hadapan mahkamah ini, adalah fakta-fakta yang tidak dipertikaikan bahawa Akaun Bersesama telah dibuka untuk membantu pengurusan hasil bagi perjanjian tersebut dan ianya dikendalikan bersama-sama oleh Plaintif dan Defendan yang mana Plaintif telahpun menempatkan empat (4) orang pekerjanya di tempat Defendan bagi operasi akaun tersebut. Di samping itu, lagi laporan-laporan bulanan adalah disediakan bersama-sama bagi segala hasil jualan yang diterima daripada penjualan stok tersebut dan akaun-akaun adalah diteliti dan diaudit oleh juruaudit dan akauntan Plaintif sendiri. Di dalam ini keadaan ini walaupun urusan perakaunan Akaun Bersesama itu dilaksanakan di tempat Defendan tetapi pengurusan dan pengendalian akaun tersebut tidak dikendalikan atau dikawal oleh Defendan sepenuhnya tetapi ia dikendalikan bersama-sama empat orang pekerja Plaintif yang ditempatkan di tempat Defendan. Apatah lagi laporan-laporan bulanan dan akaun-akaun bagi Akuan Bersesama tersebut diaudit dan diperiksa oleh juruaudit dan akauntan Plaintif. Justeru apa yang jelas di dalam kes ini, Defendan bukanlah penjaga bersendiri (sole guardian) Akaun Bersesama tersebut. Defendan juga tidak mempunyai kawalan sepenuhnya terhadap Akaun Bersesama tersebut di mana Plaintif juga mempunyai kawalan atas Akaun Bersesama ini dengan penempatan empat pekerja di tempat Defendan, justeru berupaya serta dengan mudah sahaja menyemak serta mempunyai akses kepada Akaun Bersesama ini. [44] Dengan yang demikian, walaupun pada asasnya menurut perjanjian tersebut Defendan adalah bertanggungjawab di dalam pengendalian wajar akaun (keeping proper account) bagi pembelian dan penjualan stok melalui Akaun Bersesama tersebut tetapi apabila operasi dan pengendalian Akaun Bersesama tersebut juga dikendalikan oleh Plaintif sepertimana yang di dalam kes ini, adalah dapatan Mahkamah ini, keadaan Akaun Bersesama ini tidak membangkitkan atau mengwujudkan amanah mahupun tanggungjawab fidusiari ke atas Defendan. Apatah lagi di dalam kes ini, Defendan telah membuat tegasan bahawa pada semua masa yang matan pensyarikatan usahasama ini adalah di bawah kawalan de facto Plaintif dan segala urusan pengakaunan adalah di dalam pengetahuan Plaintif termasuklah Akaun Bersesama tersebut. Tegasan ini telah tidak dinafikan langsung oleh Plaintif. Dengan yang demikian, adalah jelas di sini Akaun Bersesama tersebut bukanlah satu akaun berkonsepkan amanah. Isu kelewatan dan akuisens [45] Persoalan seterusnya betulkah wujud kelewatan tidak munasabah dan kelengahan melampau di pihak Plaintif sehingga membangkitkan akuisens terhadap Plaintif yang telah duduk di atas haknya terlalu lama dengan tidak berbuat apa-apa dan Defendan yang bergantung atas akuisens tersebut telah diprejudiskan di dalam membela tindakan terhadapnya. [46] Undang-undang mengenai kelewatan tidak munasabah dan kelengahan melampau pihak untuk meneruskan tindakan dan kuasa mahkamah di dalam membatalkan tindakan atas alasan ini adalah juga mantap dan jelas. [47] Di dalam kes Sri Kelangkota-Rakan Engineering JV Sdn Bhd & 2 Ors v Arab-Malaysian Prima Realty Sdn Bhd & 7 Ors [2001] 2 AMR 1354, Mahkamah Rayuan telah dirujuk kepada penghakiman Lord Blackburn di dalam kes Erlanger v New Sembrero Phosphate Co (1878) 3 App Cas 1218 yang juga telah menerima pakai prinsip yang sama oleh Sir Barnes Peacock dalam kes Board in Lindsay Petroleum Co. v Hurd (1874) LR 5 PC 221 yang menjelaskan mengenai doktrin kelengahan dan kelewatan dalam Mahkamah Ekuiti. Lord Blackburn di muka surat 1279 telah berkata berikut: “The doctrine of laches in Court of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material, but in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, the delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affest either party and cause a balance of justice or injustice.” [48] Sebagai panduan, kes berkaitan pembatalan tindakan atas kegagalan meneruskan tindakan for want of prosecution sesuai juga dirujuk. Di dalam kes Birkett v James [1977] 2 All ER 801, Lord Diplock telah menggariskan prinsip dan garis panduan bagaimana kuasa budi bicara mahkamah perlu dilaksanakan di dalam membatalkan tindakan for want of prosecution yang mana di muka surat 805, beliau berkata: “…I shall refer to as Allen v McAlpine, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to RSC Ord 25 r 1, of the current White Book. The power should be exercised only where contumelious, e.g. disobedience to a peremptory order of the court or conduct been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party. …” [49] Prinsip ini telah diterimapakai di mahkamah-mahkamah di Malaysia dan ini telah dinyatakan dengan jelasnya di dalam kes Toh Hock Thye & Ors v Toh Chwee Biow [1982] 1 MLJ 152 di mana Mahkamah Persekutuan telah memutuskan berikut: (1) the plaintiff’s action is liable to be dismissed for want of prosecution when the court is satisfied that (a) the plaintiffs default has been intentional and contumelious or (b) the plaintiff or his lawyer is guilty of such inordinate and inexcusable delay that the defendant has been prejudiced by it; (2) in his case the appellants having kept the suit in abeyance for five years and three months during which they remained completely inactive and having given no answer nor satisfactory explanation at all as to this inactivity when called upon to do so by the court, were guilty of inordinate and inexcusable delay if not also of intentional and contumelious conduct which entitled the court to dismiss their action for want of prosecution. [50] Di dalam kes Toh Hock Thye & Ors v Toh Chwee Biow ini, Mahkamah Persekutuan telah memutuskan bahawa Perayu yang telah membiarkan tindakan selama lima tahun tiga bulan tanpa mengambil tindakan aktif dan telah tidak memberi penjelasan yang memuaskan atas mengapa tidak ada sebarang tindakan telah diambil dalam tempoh tersebut, maka dalam keadaan ini Perayu adalah bersalah atas kelewatan tidak munasabah dan kelengahan melampau yang menjustifikasikan mahkamah untuk membatalkan tindakan Perayu for want of prosecution. Molek juga dinyatakan disini apa yang dikatakan oleh Salleh Abas HMP (YAA pada ketika itu) di muka surat 504: “…The delay of five years and three months in our view is by no means short. It is long enough to enable a baby to grow into a big child with ability to talk intelligently and be in a kindergarten preparatory to normal schooling. In our view such delay apart from being inordinate and inexcusable has also resulted in adverse affects on the respondent. The prejudice to him here is not merely confined to the possibilities of not having a fair trial or in the form of failing memory of the witnesses or lack of documents and non-availability of witnesses but also encompassing the psychological effect which the suit had on him for having it hung over his head for the last five years or so, (see Biss v Lambeth). If we take into account the totality of the period from the commencement of the cause of action on 2 October 1951, the time span of this would be 28 years 10 months and 24 days. Such a lengthy period is surely too long, extending as it were more than a quarter of a century.” [51] Berbalik kepada kes ini, apa yang nyata tindakan Plaintif telah difailkan pada 25.8.2000. Setelah lapan (8) bulan memfailkan tindakannya, Plaintif telah memfailkan Notis Untuk Menghadiri Pra Perbicaraan Pengawasan Kes pada 25.4.2001 (Eksibit ‘MM-3’). Setelah memfailkan Eksibit ‘MM-3’, tidak ada apa-apa tindakan telah diambil oleh Plaintif untuk meneruskan tindakannya sehinggalah tahun 2014. Setelah mahkamah menetapkan kes untuk pengurusan kes dan arahan-arahan diberikan semasa pengurusan kes Plaintif telah memfailkan (1) Ikatan Pliding, (2) Ikatan Dokumen Plaintif Plaintif (I) dan (II), (3) Pernyataan Isu-Isu Untuk Dibicarakan, (4) Fakta-fakta yang dipersetujui dan (5) Ringkasan Kes. Apa yang jelas dan nyata adalah Plaintif telah tidak mengambil apa-apa tindakan dan berdiam diri selama lebih 13 tahun. Malahan Plaintif telah meletakkan kesalahan kelewatan ini di bahu mahkamah dengan mengatakan fail mahkamah hilang dan tidak dapat dikesan. Memandangkan kes ini merupakan suatu kes sivil, sekiranya Plaintif benar-benar bersungguh untuk meneruskan tindakannya terhadap Defendan apabila pada pertama kali dimaklumkan bahawa fail hilang dan tidak dapat dikesan, Plaintif dengan mudahnya boleh membina semula fail reconstruct file dan seterusnya memfailkan suratcara-suratcara yang sewajarnya untuk perbicaraan penuh dan memohon daripada mahkamah untuk menetapkan kes untuk perbicaraan. Di sini apa yang Plaintif lakukan adalah setakat bertanyakan kedudukan kes kepada Mahkamah tanpa membuat apa-apa tindakan pro-aktif yang dinyatakan tadi. Kes ini adalah tindakan Plaintif untuk menegakkan haknya dan dalam keadaan ini Plaintiflah seharusnya bertindak cergas bagi memastikan kesnya berjalan dan bukanlah meletakkan beban kelewatan itu ke atas Mahkamah. Untuk ini saya suka merujuk kepada apa yang dikatakan oleh Mokhtar Sidin H (YA ketika itu) di dalam kes R Rajasingam v Balwant Singh Purba [1996] 2 MLJ 554: “With the greatest respect, we are of the view that it is not an explanation at all. Even if it is, we don not think it is satisfactory and reasonable and is not acceptable. As can be seen from the record of appeal, the documents involved in reconstruction of the file has less than 40 normal pages. Particularly with there being modern technology to make copies of those documents, we fail to understand why it took 1 ½ years to reconstruct the file. There is no suggestion that some of the documents were missing from the respondent’s file. If it is so, the respondent could easily got them from the appellant or his solicitor. No such request was ever made to the appellant or his solicitor suggesting the documents were available with the respondent all the time. As such we see no reason why it took such a long time for the respondent to file copies of those documents with the registry. In our view, there was inordinate delay on the part of the respondent and his solicitor. In our view, no reasonable excuse had been given for the delay.” [52] Berbalik semula kepada kes ini, memandangkan peguam telah meletakkan kesalahan atas kelewatan Mahkamah, Mahkamah ini telah meneliti dengan terperinci surat-menyurat peguam Plaintif di dalam rekod Mahkamah dan mendapati bahawa surat-surat peguam Plaintif bertanyakan mengenai kedudukan fail hanya bermula pada bulan Ogos 2008 melalui surat mereka bertarikh 5.8.2008 dan kemudian daripada itu, terdapat surat bertarikh 5.1.2009, 16.4.2012 dan surat bertarikh 31.3.2014. Fail ini hanya dibina semula pada 18.6.2014 oleh peguam Plaintif. [53] Pertamanya, perlu dinyatakan di sini surat peguam Plaintif bertanyakan kedudukan kes hanya berlaku selepas tujuh (7) tahun dari tarikh notis pra-pengawasan kes pada 25.4.2001. Dalam tempoh tujuh (7) tahun itu, Plaintif telah berdiam diri dengan tidak melakukan apa-apa tindakan tanpa penjelasan langsung. Keduanya, selepas daripada surat pertama bertarikh 5.8.2008, Plaintif selanjutnya telah mengambil masa selama lebih kurang enam (6) tahun baru mengambil tindakan untuk membina semula fail. Ketiga, dari masa berdiam diri, pertama kali bertanyakan fail dan membina semula fail, Plaintif telah mengambil masa selama tiga belas (13) tahun. Fail yang dibina semula hanya merangkumi 23 mukasurat pliding termasuk terjemahannya. Maka, jika dibandingkan dengan kelewatan di dalam kes R Rajasingam yang mana Plaintif mengambil masa satu setengah (1½) tahun untuk membina semula dokumen sebanyak 40 muka surat dan tempoh tersebut telah diputuskan bahawa ianya adalah suatu kelewatan yang tidak munasabah, maka adalah dapatan Mahkamah ini, nyata tempoh masa tiga belas (13) tahun yang diambil Plaintif untuk membina semula ikatan pliding sebanyak 23 muka surat termasuk terjemahan dan menjilidkan dokumennya sendiri adalah satu kelewatan yang sangat melampau. [54] Mahkamah ini juga bersependapat dengan peguam Defendan bahawa memandangkan Plaintif telah duduk di atas haknya dengan begitu lama, kelewatan tidak munasabah dan kelengahan melampau ini telah menimbulkan prejudis kepada Defendan kerana tempoh masa tiga belas (13) tahun adalah masa yang sebegitu lama dan pastinya ini telah memprejudis Defendan yang antara lain ini tidak membolehkan Defendan mencari bukti dokumen atau keterangan untuk mengemukakan pembelaan yang lengkap dan penuh terhadap tuntutan Plaintif terhadapnya, tidak membolehkan Defendan mencari saksi-saksi bagi menegakkan pembelaan Defendan untuk membela tindakan ini, Defendan terpaksa membuat semakan atas dokumen-dokumen yang tidak boleh dikesan dan ada di antara saksi-saksi yang disenaraikan untuk dipanggil Defendan telahpun meninggal dunia dan empat kakitangan Plaintif dan akauntan yang ditempatkan di tempat Defendan tidak dimaklum sama ada masih bekerja dengan Plaintif lagi atau tidak. Apatah lagi di dalam kes ini kes ini Defendan bukan sahaja terpaksa mengesan saksi-saksi yang bertugas dengannya pada tahun 1991-1993 yakni 21 tahun dahulu tetapi juga saksi-saksi yang bekerja dengan Plaintif pada masa itu yang ditempatkan di tempatnya. Selain daripada saksi-saksi tersebut kes ini juga melibatkan pencarian-pencarian dokumen lama. Adalah menjadi dapatan mahkamah ini bahawa terdapat kelewatan tidak munasabah dan kelengahan melampau di pihak Plaintif dan Plaintif telah gagal memberi penjelasan yang memuaskan atas kelewatan yang tidak menasabah tersebut. Kelewatan tidak munasabah selama 13 tahun dari tarikh pemfailan Eksibit ‘MM-3’ dan jika mengira masa dari kausa tindakan bermula telah memakan masa selama iaitu dua puluh satu (21) tahun. Kelewatan di dalam kes ini adalah tidak syak lagi satu kelengahan yang melampau yang memprejudiskan Defendan. [55] Perlu dinyatakan di sini juga bahawa mahkamah ini sedar bahawa fail telah dibina semula pada 18.6.2014 dan kes ini telahpun ditetapkan untuk perbicaraan pertama kali pada 8 hingga 10.9.2014 tetapi tarikh perbicaraan tersebut telah dilapangkan dengan pemfailan Kandungan 10 ini. Namun begitu, satu soalan akan ditimbulkan iaitu memandangkan kes ini telahpun sampai ke tahap tarikh perbicaraan perbicaraan penuh ditetapkan kenapa tidak mahkamah ini menolak sahaja permohonan Defendan dalam Kandungan 10 untuk membatalkan tuntutan Plaintif dan sewajarnya meneruskan sahaja perbicaraan penuh dengan pemanggilan saksi-saksi. Adalah pandangan dan dapatan mahkamah ini bahawa bilamana jika dari pliding dan afidavit bersama keterangan dokumentar yang ada di hadapan mahkamah ini, pemutusan isu-isu undang-undang yang dibangkitkan daripada perkara fakta-fakta yang tidak dipertikaikan boleh ditentukan oleh mahkamah ini seperti yang telahpun diputuskan. Bagi Mahkamah ini, meneruskan perbicaraan penuh semata-mata atas alasan bahawa suratcara-suratcara bagi perbicaraan penuh telah ditetapkan dan tarikh perbicaraan telah difailkan sedangkan dari pliding-pliding dan afidavit, tuntutan Plaintif adalah satu tuntutan yang jelas dan nyata tidak boleh dipertahankan (plain and obvious Plaintif’s claim is unsustainable) dan tuntutan Plaintif adalah satu tuntutan yang remeh dan temeh (frivolous or vexatious) akan menimbulkan ketidakadilan. Lagipun, di dalam pertimbangan prinsip-prinsip equiti seperti estopel, kelewatan yang melampau atau akuisens (estoppels, laches or ecquiscence) yang ditimbulkan, mahkamah hendaklah menimbangkan segala fakta dan keadaan yang merangkumi kes tersebut and setelah berbuat demikian memutuskan apakah yang adil di dalam kes itu. Di dalam kes di hadapan mahkamah ini, keadilan menuntut mahkamah ini untuk membatalkan tuntutan Plaintif atas kelewatan dan kelengahan melampau. (Sila lihat Sri Kelangkota-Rakan Engineering JV Sdn Bhd & 2 Ord v Arab-Malaysian Prima Realty Sdn Bhd & 7 Ors [2001] 2 AMR 1354 - di muka surat 1387) [56] Atas alasan-alasan di atas, permohonan Defendan di dalam Kandungan 10 adalah dibenarkan dengan kos. [57] Setelah mendengar hujahan ringkas kedua-dua peguam Defendan dan Plaintif mengenai kos bagi permohonan ini, mahkamah telah memerintahkan kos sebanyak RM 8000.00 dibayar kepada Defendan. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi NCVC 13 Shah Alam Selangor Darul Ehsan Bertarikh 19hb November 2014 Peguam Plaintif - Tetuan GH Tee & Co Encik N Rajentharan Peguam Defendan - Tetuan Amrit & Co Encik R.K. Sharma Encik Amrit Pal Singh 40

Tika 2.6.0

22-551-2000

PLAINTIF SELANGOR INDUSTRIAL CORPORATION SDN BHD DEFENDAN DANALIS DISTRIBUTORS SDN BHD

19/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=3253f472-2b71-45e4-be25-db396d6dc4dc&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. MT4-22-551-2000 ANTARA SELANGOR INDUSTRIAL CORPORATION SDN BHD ... PLAINTIF DAN DANALIS DISTRIBUTORS SDN BHD … DEFENDAN ALASAN PENGHAKIMAN (Kandungan 10) [1] Kandungan 10 ini adalah permohonan pihak Defendan untuk membatalkan tindakan Plaintif terhadap Defendan menurut Aturan 18 Kaedah 19 (1)(a) atau (b) dan/atau (c) dan/atau (d) Kaedah-kaedah Mahkamah 2012 (KKM 2012). [2] Fakta kes menurut pliding yang difailkan adalah seperti berikut: 2.1 Plaintif (Selangor Industrial Corporation Sdn Bhd) adalah sebuah syarikat sendirian berhad yang diperbadankan di Malaysia dengan pejabat berdaftarnya di No. 1, Jalan Singa B20/B, Seksyen 20, 40000 Shah Alam, Selangor Darul Ehsan. 2.2 Defendan (Danalis Distributors Sdn Bhd) juga adalah sebuah syarikat sendirian berhad yang diperbadankan di Malaysia dan mempunyai alamat perniagaan di No. 71, Jalan SS 15/5A, 47500 Subang Jaya, Petaling Jaya, Selangor Darul Ehsan. 2.3 Pada tahun 1991, Plaintif dan Defendan telah memasuki satu perjanjian usahasama secara lisan (perjanjian tersebut) di mana melalui perjanjian ini Plaintif bersetuju membiayai dengan kos sendiri pembelian buku-buku, periodical journals, jurnal-jurnal, majalah-majalah dan jenis-jenis penerbitan yang lain (stok tersebut), manakala Defendan pula akan bertanggungjawab mengedar dan menjual stok tersebut. 2.4 Adalah menjadi terma-terma perjanjian tersebut seperti berikut: (i) Defendan akan bertanggungjawab di dalam pengendalian akaun wajar (keeping proper account) bagi pembelian dan jualan stok tersebut. (ii) Defendan akan menghantar dan memasukkan hasil jualan ke dalam satu Akaun Bersesama yang dibuka atas nama Plaintif dan Defendan. (iii) Bagi tujuan Akaun Bersesama ini Plaintif menghantar empat (4) pekerjanya kepada Defendan bagi pengurusan, penyelenggaraan dan pengendalian Akaun Bersesama tersebut. (iv) Adalah merupakan prasyarat perjanjian tersebut bahawa laporan bulanan adalah disediakan bersama-sama bagi segala hasil jualan yang diterima daripada penjualan stok tersebut di mana akaun-akaun adalah diteliti dan diaudit oleh juruaudit dan akauntan Plaintif. (v) Plaintif akan dipampas (reimbursed) daripada Akaun Bersesama tersebut menurut kos pembelian dan marjin yang ditetapkan seperti berikut: Buku-buku Jurnal, periodical journals dan lain-lain Plaintif 40% 60% Defendan 60% 40% 2.5 Adalah menjadi dakwaan Plaintif di dalam Penyata Tuntutannya bahawa bayaran terakhir dibuat kepada Plaintif oleh Defendan adalah pada 30.9.1994. 2.6 Adalah menjadi dakwaan Plaintif juga bahawa pada sekitar Oktober 1994, Plaintif mendapati Defendan telah mengingkari perjanjian tersebut dan dengan secara frod telah tidak memampas Plaintif jumlah yang sebenar yang sepatutnya diberikan menurut perjanjian tersebut. 2.7 Adalah menjadi dakwaan Plaintif bahawa Plaintif memohon dan menuntut daripada Defendan jumlah pampasan sepatutnya diterima Plaintif daripada Akaun Bersesama tersebut. 2.8 Kegagalan pembayaran oleh Defendan telah mengakibatkan tindakan ini diambil oleh Plaintif terhadap Defendan untuk satu perintah pengakaunan (to account) segala penerimaan hasil jualan stok di bawah perjanjian tersebut dan membayar Plaintif bayaran yang sepatutnya diterima oleh Plaintif. [3] Defendan walau bagaimanapun telah menentang tindakan Plaintif dan menimbulkan pembelaan bahawa Plaintif tidak memberi gambaran yang sebenar dan tepat mengenai Akaun Bersesama tersebut yang mana iaitu seperti berikut: (i) Akaun Bersesama tersebut bukanlah dikendalikan atau diuruskan oleh Defendan secara bersendiri tetapi adalah akaun yang dikendali dan diuruskan bersama oleh Plaintif dan Defendan di mana Plaintif telah menempatkan 4 orang pekerja Plaintif di tempat Defendan bagi tujuan pengendalian dan pengurusan Akaun Bersesama tersebut. (ii) Adalah menjadi syarat perjanjian bahawa wang di dalam Akaun Bersesama hanya boleh dikeluarkan dengan tandatangan kedua-dua penandatangan yang diwajibkan dan diberi kuasa untuk memgendalikan akaun tersebut. Kedua-dua penandatangan tersebut adalah terdiri dari seorang wakil Plaintif dan salah seorang pengarah yang dinamakan oleh Defendan. (iii) Pada semua masa yang matan, Plaintif melalui kakitangannya telah mengambil dan mempunyai kawalan persendirian (sole control) antara lain atas kesemua akaun-akaun, buku-buku, kaki-kaki cek dan dokumen-dokumen berkaitan perjanjian tersebut, Malahan kesemua butiran-butiran dokumentar tersebut masih disimpan dan di dalam kawalan Plaintif sehingga kini. (iv) Plaintiflah yang sebenarnya telah gagal memperincikan laporan Akaun Bersesama tersebut walaupun permintaan berulangkali dibuat oleh Defendan. (v) Defendan mendakwa segala hasil jualan stok telah dimasukkan ke dalam Akaun Bersesama tersebut. [4] Di dalam penyata pembelaannya, Defendan juga telah memplidkan bahawa perjanjian tersebut telahpun tamat pada tahun 1993 apabila tidak ada lagi urusan berkenaan perjanjian tersebut sejak pertengahan tahun 1993 dan oleh yang demikian tuntutan yang difailkan Plaintif adalah dihalang oleh batasan masa enam tahun menurut seksyen 6 Akta Had Masa 1953. Undang-undang mengenai permohonan di bawah Aturan 18 Kaedah 19 KKM 2012 [5] Undang-undang mengenai kuasa budi bicara mahkamah di dalam pembatalan tindakan di bawah Aturan 18 Kaedah 19 (A.18 k.19) KKM 2012 adalah jitu dan mantap. Terlalu banyak otoriti yang telah membincangkan dan memutuskan prinsip-prinsip pemakaian kuasa budi bicara mahkamah di bawah A.18 k.19 ini. Memadai sekiranya mahkamah ini merujuk kepada beberapa kes sebagai panduan dan rujukan. [6] Di dalam kes Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, prinsip-prinsip undang-undang mengenai kuasa budi bicara mahkamah di bawah A.18 k.19 ini telah diterangkan dengan begitu jelas oleh Mohamed Dzaiddin HMA (YAA pada ketika itu) seperti berikut: “It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it clearly seen that a claim or answer is on the face of it “obviously unsustainable” (see AG of Duchy of Lancaster v L & NWRly & Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r 3 (which is in pari material with our Order 33 r 2 of the RHC)(see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [7] Manakala Vincent Ng H (YA ketika itu) dalam kes Suppuletchemi v Palmco Bina Sdn Bhd [1994] 2 AMR 1191, di muka surat 1205 penghakimannya telah berkata: “But in an application under Order 18 r 19 or Order 14, it is still incumbent upon the court to determine whether issues could more appropriately have been decided, without the expence of a full trial with a witnesses and expenditure of the court’s invaluable time. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits. The crucial question the court would have to ask itself in applications under Order 14 or Order 18 r 19(1)-(d) is first, whether the piece or pieces of evidence essential to make out the reasonable prima facie cause of action or a prima facie triable issue of fact are of the nature such that they are adduceable by affidavit evidence; and secondly – if the answer to this question is in the positive – whether such essential prima facie evidence had been so adduced in the supporting affidavits. Such affidavits ought not to contain bare averments but must condescend or come definitely into particulars fro serious argument such that they are sufficient to satisfy the court that there is a reasonable prima facie cause of action or triable issue or issue of fact or law in the defence as the case may be. …the court must and ought to look at the whole situation and ask itself whether the plaintiff (in an application to strike off a claim) has satisfied the court that he has a bona fide or prima facie cause of action,…” [8] Di dalam kes Mooney & Ors v Peat Marwick Mitchell & Co & Anor [1967] 1 MLJ 87 Raja Azlan Shah J (DYMM pada ketika itu) di muka surat 88 telah menyatakan seperti berikut: “It is firmly established that the power exercisable under r. 4 “is only appropriate in cases which are plain and obvious so that a judge can say at once that a statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief of which he ask for”: See the judgment of Lindley MR in Hubbuck & Sons v Wilkinsons Heywood & Clark Ltd.(1) Where the situation arises, the pleadings and particulars alone shall be considered and all the allegations in it shall be presumed to be true, and it is only on that assumption that any statable case can be made for this application: see Peck v Russell.(2) The court cannot and indeed is not empowered to look behind the pleadings and particulars if it discloses a reasonable cause of action. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at trial is no ground for it to be struck out: see Boaler v Holder.(3) A recent exposition of the law is afforded by the judgment of Danckwerts LJ in Wenlock v Moloney.(4): “Under the rule (ie. O. 25 r. 4) it had to appear on the face of the plaintiff’s pleadings that the action could not succeed or was objectionable for some other reason. Not evidence could be filed… But, as the procedure was of a summary nature the party was not to be deprived of his right to have his case tried by a proper trial unless the matter was clear.’’ After stating that the former rules are now incorporated in the revised Rules of the Supreme Court, O. 18 r. 19, he continues: “But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.” …” [9] Berbalik kepada permohonan di hadapan mahkamah ini, benarkah seperti yang dihujahkan oleh peguam bijaksana bagi pihak Defendan bahawa kes ini adalah suatu kes yang sesuai dan patut bagi mahkamah ini menggunakan kuasa budi bicaranya di bawah A.18 k.19 untuk membatalkan tuntutan Plaintif. [10] Bagi menyokong permohonannya di Kandungan 10, Defendan telah memfailkan dua afidavit yang diikrarkan oleh Ahmad Ali bin Abdul Me Min, Pengarah Urusan Defendan bertarikh 14.7.2014 (Kandungan 11) dan 8.8.2014 (Kandungan 13). [11] Defendan telah memohon Mahkamah ini membatalkan tuntutan Plaintif terhadap Defendan atas dua (2) alasan yakni: (i) tuntutan Plaintif yang telah difailkan pada 25.8.2000 adalah dihalang oleh batasan masa enam tahun. (ii) memandangkan tindakan ini telah difailkan pada tahun 2000 dan setelah hampir 14 tahun Plaintif tidak mengambil apa-apa langkah untuk meneruskan tindakannya sehinggalah pada tahun 2014 Plaintif baru memfailkan dokumen-dokumen bagi membangkitkan kembali tindakannya, maka dengan ini terdapat kelewatan dan kelengahan yang melampau di pihak Plaintif di dalam meneruskan tindakan ini terhadap Defendan yang mana Plaintif telah berdiam diri dan duduk di atas haknya selama 14 tahun. Plaintif justeru itu telah akuisens ‘acquiescence’ akan haknya itu dan Plaintif hendaklah dihalang daripada meneruskan tindakan terhadap Defendan kerana kelewatan dan kelengahan melampau ini telah memprejudiskan Defendan. [12] Adalah dihujahkan bagi pihak Defendan bahawa tuntutan Plaintif untuk satu perintah pengakaunan (to account) hasil yang diperolehi daripada perjanjian usahasama yang dimasuki secara lisan pada tahun 1991 dan pembayaran jumlah hasil yang gagal dibayar oleh Defendan kepadanya adalah dihalang oleh batasan masa kerana perjanjian itu telah pun ditamatkan pada pertengahan tahun 1993. Menurut Defendan selepas pertengahan tahun 1993 tiada sebarang lagi hubungan kontraktual di antara Plaintif dan Defendan. Peguam terpelajar Defendan telah menghujahkan bahawa kausa tindakan Plaintif ini adalah berasaskan kontrak dan apabila tiada lagi urusan perniagaan antara kedua Plaintif dan Defendan serta terputusnya hubungan kontaktual tersebut, maka kausa tindakan bermula atau terakru pada pertengahan tahun 1993. Plaintif yang hanya telah memfailkan tindakan ini pada 25.8.2000 yakni tujuh (7) tahun daripada kausa tindakan terakru, maka tuntutan Plaintif adalah dihalang oleh batasan masa menurut Seksyen 6 Akta Had Masa 1953. [13] Malahan menurut peguam Defendan lagi, sekiranya dokumen-dokumen Plaintif dirujuk, transaksi terakhir Plaintif dan Defendan adalah pada tahun 31.12.1992 dan dengan itu dapat dilihat bahawa tindakan Plaintif sememangnya adalah dihalang oleh batasan masa. Untuk menyokong hujahannya, peguam telah merujuk kepada kes Hj Husin Hj Ali & Ors v Datuk Hj. Mohamed Yaacob & Ors & Other cases [1983] CLJ (Rep) 165. [14] Peguam Defendan juga telah menghujahkan bahawa Plaintif telah melengah-lengah tindakannya selama tempoh hampir 14 tahun yang mana selepas pemfailan tindakan ini pada tahun 2000, selain daripada Notis Pra Perbicaraan Pengawasan Kes bertarikh 25.4.2001 yang dieksibitkan di dalam Afidavit Jawapan Plaintif, Plaintif telah tidak berbuat apa-apa untuk meneruskan tindakannya. Plaintif telah hanya memfailkan dokumen-dokumen sewajarnya untuk perbicaraan pada tahun 2014. Justeru itu, terdapat kelewatan yang tidak munasabah dan kelengahan melampau di pihak Plaintif di dalam menegakkan haknya. Peguam Defendan telah menghujahkan bahawa Plaintif telah akuisens ‘acquiescence’ akan haknya dan pihak Defendan telah bergantung kepada akuisens ‘acquiescence’ Plaintif tersebut, maka Plaintif sewajarnya dihalang daripada meneruskan tindakannya terhadap Defendan. Di samping itu juga, kelewatan tidak munasabah dan kelengahan melampau Plaintif itu telah memprejudiskan Defendan iaitu: (i) masa yang begitu lama dan panjang mengakibatkan Defendan telah tidak dapat mengambil tindakan yang munasabah serta menyukarkan Defendan untuk membela tindakan terhadapnya. (ii) tempoh masa 13 tahun yang begitu panjang ini tidak membolehkan Defendan mencari bukti dokumen atau keterangan untuk mengemukakan pembelaan yang lengkap dan penuh terhadap tuntutan Plaintif terhadapnya. (iii) tempoh masa yang begitu panjang tidak membolehkan Defendan mencari saksi-saksi bagi menegakkan pembelaan Defendan untuk membela tindakan ini. (iv) Defendan terpaksa membuat semakan atas dokumen-dokumen yang tidak boleh dikesan dan terdapat saksi-saksi yang disenaraikan untuk dipanggil Defendan telahpun meninggal dunia. (v) empat kakitangan Plaintif yang ditempatkan di tempat Defendan tidak dimaklum sama ada masih bekerja dengan Plaintif atau sebaliknya. (vi) memandangkan akaun yang dibuka adalah Akaun Bersesama dan juga dikendalikan oleh empat pekerja Plaintif, dokumen-dokumen dan laporan-laporan tidak ada di dalam milikan Defendan, tetapi berada di dalam milikan Plaintif. Defendan perlu mengesan pembuat dokumen-dokumen dan laporan-laporan tersebut dan usaha-usaha mengesannya sememangnya sukar bagi Defendan untuk melaksanakannya. [15] Peguam Defendan juga telah menghujahkan bahawa Plaintif telah gagal memberi penjelasan yang memuaskan dan menasabah bagi kelewatan tidak munasabah dan kelengahan melampau ini. Untuk ini, peguam Defendan telah merujuk kepada keputusan Mahkamah Persekutuan di dalam kes Vasudevan v T.Demodevan & Anor [1981] 2 MLJ 150 dan juga kes Peak Hua Industries Bhd v Peak Hua Holdings Bhd & Ors [2005] 6 MLJ 266. [16] Plaintif telah menentang permohonan Defendan dengan memfailkan Afidavit Jawapan yang diikrarkan oleh Mazlina Merican iaitu Pengurus Kanan Plaintif (Kandungan12). [17] Plaintif telah menafikan tindakannya dihalang batasan masa dan menegaskan bahawa tindakannya terhadap Defendan bukan sahaja berdasarkan kepada perjanjian usahasama lisan yang dimasuki oleh kedua pihak tetapi juga terhadap pengendalian Akaun Bersesama tersebut. [18] Peguam terpelajar Plaintif telah menghujahkan bahawa kausa tindakan tidak bermula dari tarikh perjanjian tetapi dari tarikh berlakunya perlanggaran perjanjian yakni apabila Defendan telah memperolehi atau mengutip hasil jualan stok dan gagal menyerahkan hasil perolehan yang sepatutnya kepada Plaintif. Bagi tujuan penentuan bilakah berlakunya perlanggaran ini, adalah dihujahkan bagi pihak Plaintif bahawa ianya adalah persoalan fakta yang hanya boleh ditentukan oleh mahkamah di dalam perbicaraan penuh dengan pemanggilan saksi-saksi. [19] Adalah juga telah dihujahkan seterusnya bagi pihak Plaintif bahawa memandangkan Akaun Bersesama itu berteraskan amanah maka adalah menjadi kewajipan dan tanggungjawab Defendan untuk menunjukkan Akaun Bersesama secara tulus dan bona fide. Plaintif selanjutnya menghujahkan bahawa Akaun Bersesama tersebut telah mengwujudkan pertanggungjawaban amanah dan fidusiari ke atas Defendan yang memerlukan Defendan memberi keterangan di dalam perbicaraan penuh bagi perkara-perkara berikut: i. bilakah stok-stok yang dibekalkan oleh Plaintif itu telah terjual oleh Defendan?; dan ii. kepada siapakah stok-stok itu dijual oleh Defendan?; dan iii. pada harga apakah stok-stok itu dijual oleh Defendan?; dan iv. bilakah hasil jualan dikutip oleh Defendan?; dan v. samada setiap hasil kutipan dimasukkan ke dalam Akaun Bersesama oleh Defendan?; dan vi. adakah dari hasil kutipan tersebut, bahagian kepunyaan Plaintif telah diagihkan kepadanya?. [20] Dengan kewujudan tanggungjawab fidusiari, amanah (trust) dan pengamanahan (trustee) ini, peguam terpelajar Plaintif menghujahkan bahawa bahawa batasan masa tidak terpakai kepada tuntutan Plaintif dan Plaintif bergantung kepada kepada seksyen 22 Akta Had Masa 1953. Untuk hujahan ini, Plaintif telah bergantung juga kepada kes-kes berikut: i. ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2004] 4 CLJ 674. ii. Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 CLJ 278. iii. Takako Sakao v Ng Pek Yuen & Ors [2010] 1 CLJ 381. [21] Plaintif juga mendakwa bahawa wujud perlakuan frod di pihak Defendan dan ini diketahui berlakunya pada sekitar bulan Oktober 1994 apabila pembayaran terakhir dibuat oleh Defendan pada 30.9.1994 berjumlah RM3000.00 di mana Plaintif telah mendapat tahu bahawa Defendan tidak meremitkan sepenuhnya hasil yang sepatutnya diterima oleh Plaintif ke dalam Akaun Bersesama. Di dalam hal frod ini, peguam Plaintif menghujahkan bahawa memandangkan Plaintif telah hanya mengetahui perlakuan frod tersebut pada Oktober 1994 dan Defendan yang tidak memplidkan bahawa perlakuan frod itu berlaku lebih awal dari Oktober 1994, maka kausa tindakan Plaintif telah hanya terakru pada Oktober 1994 dan memandangkan tindakan ini telahpun difailkan pada 25.8.2000, oleh itu menurut seksyen 29 Akta Had Masa 1953, tuntutan Plaintif adalah di dalam tempoh masa enam tahun. [22] Plaintif telah menafikan bahawa terdapatnya kelewatan tidak munasabah dan kelengahan melampau di pihaknya di dalam meneruskan tindakan. Menurut Plaintif, pada 25.4.2001 Plaintif telahpun memfailkan Notis untuk menghadiri Pra Perbicaraan Pengawasan Kes dan notis ini telah dieksibitkan sebagai Eksibit ‘MM-3’ di dalam Kandungan 12. [23] Di samping itu di perenggan 14 Kandungan 12, Plaintif telah meletakkan kesalahan kelewatan tersebut ke atas mahkamah dengan menyatakan bahawa kelewatan yang timbul adalah disebabkan fail yang tidak dapat dikesan atau hilang. Isu batasan masa [24] Untuk menentukan samada tuntutan Plaintif adalah dihalang masa atau tidak, mahkamah terlebih perlu menentukan apakah sebenarnya tuntutan Plaintif terhadap Defendan dan bilakah kausa tindakan itu bermula atau terakru. Mahkamah di awal penghakiman telah menyatakan bahawa relif yang dituntut oleh Plaintif adalah satu perintah pengakaunan dan terbit dari pengakaunan tersebut menuntut Defendan membayarnya jumlah hasil yang sepatutnya dibayar oleh Defendan hasil dari penjualan stok. Mahkamah ini berpendapat bagi memberi gambaran yang lebih jelas tentang apa yang sebenarnya telah diplidkan oleh Plaintif di dalam penyata tuntutannya bagi menuntut haknya atas obligasi Defendan di dalam perjanjian tersebut, perenggan-perenggan yang relevan perlu diperturunkan. Perenggan-perenggan yang relevan tersebut adalah perenggan 6,7dan 8 dan diperturunkan di bawah ini. 6. Defendan telah untuk kali terakhir membuat bayaran sebahagian kepada Plaintif sejumlah RM3,000.00 melalui cek PAB bernombor 708210 pada atau lebih kurang 30.9.1994 terhadap jumlah yang terhutang kepada Plaintif dan yang Plaintif berhak di bawah Perjanjian tersebut. 7. Pada atau lebih kurang Oktober 1994, Plaintif mendapati bahawa Defendan telah secara frod dan berlanggaran Perjanjian tersebut tidak menghantar dan memasukkan jumlah sepenuhnya hasil jualan Stok ke dalam Akaun Bersesama tersebut. 8. Plaintif telah kemudiannya meminta dan menuntut Defendan untuk memberi akaun kepada Plaintif untuk hasil jualan dan juga bahagian marjin untung yang Plaintif berhak di bawah Perjanjian tersebut tetapi secara salah dan berlanggaran Perjanjian tersebut, Defendan telah gagal untuk memberi akaun kepada Plaintif secara yang diminta oleh Plaintif atau sama sekali. [25] Namun begitu, setelah Defendan di dalam penyataan pembelaannya menafikan tuntutan Plaintif dan mengemukakan pengataan bahawa Akaun Bersesama itu bukanlah urusan Defendan secara bersendiri tetapi di bawah pengendalian bersama-sama Plaintif dan Defendan di mana Plaintif sendiri telah menempatkan empat pekerjanya ke tempat Defendan bagi urusan Akaun Bersesama tersebut, dan akaun-akaun dan laporan-laporan diaudit oleh juruaudit dan akauntan Plaintif sendiri. Plaintif telah di dalam Jawapan kepada Pembelaan telah memplidkan pengataan-pengataan berikut pula: 2.3 Defendan telah secara frod dan berlanggaran dengan Perjanjian tersebut tidak menghantar dan tidak memasukkan jumlah sepenuh bayaran hasil-hasil jualan Stok yang diterima daripada pelanggan-pelanggan/ pembeli-pembeli ke dalam Akaun Bersesama (seperti yang ditakrifkan dalam Penyata Tuntutan). Butir-Butir a. Defendan telah menggunakan hasil-hasil jualan tersebut untuk tujuannya sendiri tanpa sebarang akaun kepada Plaintif. b. Defendan telah memasukkan hasil-hasil jualan tersebut atau sebahagiannya ke dalam akaun banknya sendiri. 2.4 Hasil jualan yang tidak diakaunkan sedemikian (such unaccounted for sale proceeds) telah diterima oleh Defendan, setakat mana bahagian yang Plaintif berhak di bawah Perjanjian tersebut, bagi atau untuk kegunaan Plaintif (for or to the use of the Plaintiff). [26] Daripada pliding yang difailkan oleh Plaintif, boleh disimpulkan bahawa aduan Plaintif terhadap Defendan adalah Defendan tidak memasukkan jumlah sepatut dan sepenuhnya bayaran hasil-hasil jualan stok yang diterima daripada pelanggan ke dalam Akaun Bersesama tersebut dan telah menggunakan hasil-hasil tersebut untuk tujuan sendiri. [27] Justeru apakah sebenarnya kausa tindakan Plaintif atau apakah asas tuntutan Plaintif daripada pliding tersebut dan apakah hak yang mahu dikuatkuasakan Plaintif dan bila hak ini bermula? [28] Secara prinsipnya had masa akan hanya bermula apabila kausa tindakan terakru dan timbul di atas Plaintif. Bila sesuatu kausa tindakan itu terakru atau bermula telah dinyatakan oleh Sir Binod Mitter di dalam kes Bolo v Koklan AIR 1930 PC 270 di muka surat 331 yang telah dirujuk oleh Mahkamah Persekutuan di dalam kes Nasri v Mesah [1971] 1 MLJ 32 dan dipetik di sini: “There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” [29] Di dalam kes Nasri v Mesah [1971] 1 MLJ 32, telah diputuskan oleh Mahkamah Persekutuan bahawa bagi tindakan-tindakan perlanggaran kontrak atau perjanjian, had masa di bawah Akta Had Masa 1953 bermula dari tarikh perlanggarannya. Di dalam kes ini Gill HMP (YAA pada masa itu) setelah merujuk kepada kata-kata Sir Binod Mitter di dalam kes Bolo v Koklan telah menjelaskan frasa kausa tindakan dengan berkata di muka surat 34: “A ‘cause of action’ is the entire set of fact that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the Plaintiff must prove in order to obtain judgment (per Lord Esher MR in Read v Brown (1888) 22 QBD 128 at p 131.) In Reeves v Butcher [1891] 2 QB 509 at p 511 Lindley LJ said: ‘This expression, “cause of action”, has been repeatedly the subject of decision, and it has been held, particularly in Hemp v Garland LR 4 QB 519, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.’ In Board of Trade v Cayzer, Irvine & Co [1927] AC 610, Viscount Dunedin described “cause of action” as that which makes action possible. Now, what makes possible an action founded on a contract is its breach. In other words, a cause of action founded on a contract accrues on the date of its breach. Similarly, the right to sue on a contract accrues on its breach. In the case of actions founded on contract, therefore, time runs from breach (per Field J in Gibbs v Guild 8 QBD 296 at p 302). In the case of actions founded on any other right, time runs from the date on which that right is infringed or there is a threat of its infringement (see Bolo’s case). It would seem clear, therefore, that the expressions ‘the right to sue accrues’, the cause of action accrues’ and ‘the right of action accrues’ mean one and the same thing when one speaks of the time from which the period of limitation as prescribed by law should run.” (Penekanan oleh mahkamah ini) [30] Di dalam kes ini, pihak-pihak tidak mempertikaikan bahawa perjanjian yang dimasukki adalah perjanjian usahasama secara lisan dan kedua-dua pihak bersetuju bahawa Plaintif akan dipampas (reimbursed) menurut kadar-kadar marjin yang dipersetujui dan Plaintif akan dibayar daripada hasil jualan stok yang diperolehi oleh Defendan. Untuk mendakwa bahawa terdapatnya pemecahan obligasi di pihak Defendan di bawah perjanjian tersebut, apa yang Plaintif telah lakukan hanyalah membuat dakwaan bahawa Defendan telah tidak membayar jumlah yang sepatutnya kepadanya tanpa merujuk kepada mana-mana dokumen yang menunjukkan Defendan tidak membayar jumlah yang sepatutnya. Plaintif hanya telah mengatakan bahawa bayaran terakhir Plaintif terima daripada Defendan adalah sekeping cek PAB 708210 pada 30.9.1994 berjumlah RM3000.00 dan sekitar Oktober 1994 mendapati terdapat perlakuan frod Defendan yang tidak memasukkan jumlah sepenuhnya ke dalam Akaun Bersesama. [31] Di dalam keadaan di mana dakwaan yang dibuat oleh Plaintif hanya sekadar pengataan semata-mata tanpa merujuk kepada mana-mana dokumen yang menunjukkan Defendan tidak membayar jumlah yang sebenarnya kepada Plaintif, maka persoalannya adakah ini memadai untuk menunjukkan kausa tindakan Plaintif bermula pada waktu itu seperti dihujahkan oleh peguam Plaintif. Benarkah Plaintif telah mengetahui kononnya perlakuan frod itu pada Oktober 1994, sedangkan tidak ada langsung dokumen menunjukkan sedemikian bagi menyokong pengataannya. Sekiranya benarlah Plaintif telah mengetahui pada sekitar Oktober 1994 bahawa Defendan telah gagal membayarnya jumlah yang sebenarnya kepadanya, perkara yang paling wajar dan masuk akal ‘sensible’ dibuat oleh Plaintif apabila haknya terhadap jumlah yang sebenar dilanggar ‘infringed’ adalah mengemukakan atau mengeluarkan notis tuntutan kepada Defendan untuk mengakaunkan hasil sebenarnya yang diterima ataupun menuntut supaya Defendan membayar kepada Plaintif jumlah yang sepatutnya dibayar. Dengan pengeluaran notis sedemikian bolehlah dibuat satu penentuan bahawa kausa tindakan Plaintif bermula pada tarikh tersebut apabila Plaintif menyedari bahawa Defendan telah tidak bertindak jujur. Tidak ada sebarang dokumen pun telah dieksibitkan oleh Plaintif di dalam Afidavit Jawapannya untuk menunjukkan sedemikian. Ketidakwujudan apa-apa dokumen untuk menyokong pengataan Plaintif bahawa Plaintif mengetahui bahawa jumlah sebenarnya tidak dibayar oleh Defendan menjadikan pengataan Plaintif sebagai pengataan kosong semata-mata. [32] Undang-undang adalah mantap bahawa untuk Plaintif mendakwa perlakuan frod atau tidak jujur oleh Defendan, Plaintif bukan sahaja perlu memplidkan perlakuan frod atau tidak jujur Defendan tersebut, tetapi Plaintif hendaklah juga memberi butiran-butiran terperinci perlakuan tersebut. Memplid frod atau tidak jujur semata-mata tanpa memberi butiran bagaimana dan keadaan perlakuan frod atau tidak jujur tersebut dilakukan adalah tidak mencukupi dan memadai. Prinsip undang-undang mengenai pliding berkenaan ini boleh dirujuk kepada pemerhatian yang telah dibuat oleh Mohamed Dzaiddin HMP (YAA ketika itu) di dalam kes United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 2 AMR 1561 di mana di muka surat 1572-1573, YAA telah menyatakan berikut: “On counsel’s submission that the defence did not consist of bare allegation of fraud but the defendants had sufficiently explained it in the defence, it is a settled rule of practice that where fraud and dishonesty is material, this must be clearly pleaded, if not explicitly, then in such terms that the reader of the pleading can be left in no reasonable doubt what is being alleged. Further, where an element in the alleged fraud or dishonesty relied on is the other party’s knowledge of a given fact or state of affairs, this must be explicitly pleaded (Lipkin Gorman v Karpnale Ltd [1989] FLR 137; [1992] 4 All ER 409, CA). In the instant case, we can only look at the defence since the supporting affidavit was rejected by the trial Judge. On this basis, it is clear to us that paragraphs 5 and 6 of the defence do not candescent to particulars of all alleged fraud. Merely pleading that even it the two fixed deposit receipts were issued and renewed (which the defendants denied) and that they had been done so without due authority and/ or in fraud of the defendants is not enough. The defendants must state with sufficient particularity the circumstances how the two fixed deposit receipts were allegedly issued in fraud of the defendants. For the above reason and in the light of the principles of pleading which must be duly observed, we cannot agree with counsel’s contention that the defence contains a sufficient plea of fraud.” (penekanan oleh mahkamah ini) [33] Berpandukan kes United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor, adalah dapatan mahkamah ini bahawa di dalam kes ini hujahan peguam Plaintif yang kausa tindakan bermula pada Oktober 1994 apabila Plaintif pada masa itu telah mengetahui perlakuan frod atau tidak jujur Defendan di mana Defendan telah tidak membayarnya hasil sebenar dari penjualan stok adalah tidak dapat diterima kerana ianya adalah sekadar pengataan kosong yang tiada sokongan dan tiada butiran-butiran mengenainya dan pengataan sebegitu tidak mencukupi atau memadai untuk suatu dakwaan atau pli perlakuan frod oleh Defendan. [34] Di dalam keadaan ini, apabila dakwaan atau pli Plaintif atas perlakuan frod atau tidak jujur Defendan tidak dapat dipertahankan, bilakah sebenarnya kausa tindakan Plaintif terakru atau bermula? Mahkamah ini telah membuat penelitian ke atas dokumen-dokumen Plaintif dan setelah meneliti secara terperinci dokumen-dokumen Plaintif di Eksibit ‘MM-1’ dari muka surat 1-298 dan Eksibit ‘MM-2’ dari muka surat 299-723 dalam Afidavit Jawapan Plaintif di mana dokumen-dokumen tersebut adalah bukti pembekalan stok kepada Defendan dan bayaran-bayaran yang telah dibayar kepada Plaintif oleh Defendan yang telah dikemukakan oleh Plaintif bagi membuktikan kesnya terhadap Defendan, mahkamah ini bersependapat dengan peguam Defendan bahawa ternyata dari dokumen-dokumen tersebut transaksi terakhir yang direkodkan adalah bertarikh 31.12.1992 iaitu di muka surat 634-689 Eksibit ‘MM-2’. Selepas daripada 31.12.1992, tiada lagi rekod yang menunjukkan hubungan kontraktual di antara Plaintif dan Defendan. Di dalam hal ini, Plaintif telah cuba bergantung kepada baucer bayaran yang dikeluarkan oleh Defendan atas cek 708210 yang dikatakan bertarikh 30.9.1994 tetapi apabila Mahkamah ini meneliti baucer tersebut di muka surat 723 Eksibit ‘MM-2’ baucer tersebut adalah baucer yang tidak bertarikh atau tidak mempunyai tarikh. Malahan kononnya di muka surat 722 Eksibit ‘MM-2’, Plaintif telah meletakkan indeks dokumen bahawa terdapatnya resit rasmi yang dikeluarkan oleh Plaintif pada 7.9.1994 kepada Defendan di muka surat 724 tetapi sebenarnya didapati tidak ada muka surat 724 ataupun resit rasmi itu tidak dieksibitkan di Eksibit ‘MM-2’. [35] Dalam keadaan pliding dan afidavit Plaintif yang sedemikian, mahkamah ini tidak dapat tidak bersetuju dengan Peguam Defendan bahawa kausa tindakan Plaintif telah bermula apabila hubungan kontraktual di antara Plaintif dan Defendan berakhir apabila tiada lagi transaksi antara keduanya pada pertengahan tahun 1993. Plaintif sendiri telah tidak menafikan langsung atau menentang balas perenggan 12 Penyata Pembelaan Defendan yang memplidkan bahawa perjanjian tersebut telahpun tamat dalam pertengahan tahun 1993 dan tiada lagi sebarang urusan berkenaan Perjanjian tersebut selepas itu. Kalau dirujuk kepada Eksibit ‘MM-2’ yang merupakan dokumen-dokumen Plaintif bagi menyokong tuntutannya terhadap Defendan, melalui perjanjian usahama itu terbentuk satu hubungan kontraktual di antara Plaintif dan Defendan bagi pembelian stok oleh Plaintif dan pengedaran serta penjualan stok oleh Defendan dengan hasil perolehan penjualan stok dibahagikan mengikut marjin yang dipersetujui. Apabila tiada lagi transaksi antara keduanya pada pertengahan tahun 1993 yang mana Plaintif tidak lagi membuat pembelian dan tidak ada lagi penjualan, makanya hubungan kontraktual itu telah pun berakhir. Adalah dapatan mahkamah ini bahawa apa-apa aduan atau ketidakpuasan atau perlanggaran obligasi pihak-pihak di bawah perjanjian tersebut hendaklah dibuat atau dituntut dalam tempoh enam tahun dari tarikh berakhirnya perjanjian ini. Tambahan pula, dokumen-dokumen Plaintif sendiri menunjukkan bahawa transaksi terakhir yang direkodkan adalah pada 31.12.1992 dan tiada dokumen yang menujukkan tarikh terkemudian dari itu, yang dalam tempoh enam tahun ke 25.8.2000, maka, dengan ini apabila tindakan ini difailkan oleh Plaintif pada 25.8.2000, tindakan Plaintif sememangnya di luar had masa enam tahun yang diperuntukkan oleh seksyen 6 Akta Had Masa 1953. [36] Perlu juga dinyatakan bahawa penentuan isu had masa di dalam kes ini tidak memerlukan pemutusannya dibuat dengan pemanggilan saksi-saksi di suatu perbicaraan penuh yang pastinya akan melibatkan kos pihak-pihak dan masa berharga mahkamah ini kerana melalui pliding-pliding dan afidavit yang difailkan, isu had masa sudah boleh ditentukan oleh mahkamah seperti yang telah diputuskan di atas tadi. (sila lihat kes Suppuletchemi v Palmco Bina Sdn Bhd [1994] 2 AMR 1191) Isu amanah dan tanggungjawab fidusiari Defendan yang dibangkitkan oleh Plaintif [37] Peguam Plaintif di dalam menegaskan bahawa tuntutan Plaintif tidak dibatasi oleh had masa telah juga menghujahkan bahawa tuntutannya terhadap Defendan bukan hanya setakat hubungan kontraktual yang timbul atau terbit dari perjanjian usahasama lisan tersebut tetapi juga adalah berdasarkan tugas fidusiari dan amanah Defendan di dalam mengendali dan menguruskan Akaun Bersesama tersebut. Menurut peguam terpelajar Plaintif lagi apabila Defendan gagal mengakaunkan hasil yang diperolehi oleh Defendan daripada penjualan stok dengan jujur dan bona fide, maka terdapat pemecahan tugas fidusiari dan amanah di pihak Defendan. Peguam Plaintif telah bersandar kepada pengamanahan yang timbul dari Akaun Bersesama dan telah menghujahkan bahawa seksyen 22 Akta Had Masa 1953 terpakai di mana tiada batasan masa terhadap kes-kes berasaskan pengamanahan atau amanah. [38] Di sebaliknya, Peguam terpelajar Defendan telah berhujah balas bahawa di dalam Penyata Tuntutan Plaintif tidak langsung memplidkan bahawa Akaun Bersesama itu adalah akaun amanah. Menurut Peguam Defendan lagi, perkara mengenai akaun amanah ini hanya telah ditimbulkan oleh Plaintif di dalam penghujahan bertulis peguamnya. Di samping itu Defendan menafikan dengan keras bahawa Akaun Bersesama tersebut adalah akaun amanah seperti yang ditimbulkan peguam Plaintif tetapi merupakan Akaun Bersesama yang dibuka bagi tujuan perakaunan hasil jualan daripada stok tersebut. Menurut Defendan, Akaun Bersesama tersebut bukanlah dikendali atau dikawal sepenuhnya dan secara sole control oleh Defendan untuk menimbulkan tanggungjawab fidusiari dan amanah di pihak Defendan. Adalah ditegaskan bagi pihak Defendan bahawa Akaun Bersesama tersebut ia adalah dikendali dan diuruskan bersama-sama oleh Plaintif dan Defendan. Malahan menurut Defendan lagi untuk operasi Akaun Bersesama tersebut Plaintif telah menempatkan empat (4) orang pekerja bernama Rajmah Shaari dan Faridah Ayob (Bahagian akaun), Zakaria Yusof (Bahagian Penghantaran) dan Mary Verghese (Bahagian Journal) di tempat Defendan. Seterusnya menurut Defendan lagi, adalah merupakan prasyarat perjanjian tersebut bahawa laporan bulanan adalah disediakan bersama-sama bagi segala hasil jualan yang diterima daripada penjualan stok tersebut di mana akaun-akaun adalah diteliti dan diaudit oleh juruaudit dan akauntan Plaintif sendiri. Adalah selanjutnya dihujahkan oleh peguam Defendan lagi, pengataan-pengataan mengenai penempatan empat pekerja Plaintif dan akaun-akaun diaudit oleh juruaudit dan akauntan Plaintif sendiri tidak langsung dinafikan oleh Plaintif di dalam plidingnya ataupun Afidavit Jawapannya bagi menentang permohonan Kandungan 10. [39] Mahkamah ini bersependapat dengan peguam Defendan bahawa pengataan Akaun Bersesama itu adalah akaun amanah sememangnya tidak diplidkan oleh Plaintif di dalam plidingnya. Undang-undang adalah mantap dan jitu bahawa Plaintif adalah terikat dengan plidingnya. (Sila lihat i. Janagi v Ong Boon Kiat [1971] 1 LNS 42. ii. Superitendent of Lands and Surveys Department Bintulu Division & Anor v Agiak Bungkng & Ors [2012] 1 MLJ 335. iii. RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. iv. The Chartered Bank v Yong Chan [1974] 1 MLJ 157. v. Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322. vi. State Government of Perak v Muniandy [1986] 1 MLJ 490. vii. Astrovlanis Compania Naviera AS v Linard [1972] 2 QB 611, [1972] 2 All ER 647. viii. Spedding v Filzpatrick 1888 38 Ch D 410 at p 413. ix. Thomson v Birkley (1882) 31 WR 230. x. Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 4 CLJ 283.) [40] Namun begitu, walaupun isu Akaun Bersesama berkonsepkan amanah atau pengamanahan ini tidak langsung diplidkan oleh Plaintif di dalam plidingnya tetapi bagi maksud kesempurnaan, mahkamah ini akan menentukan juga isu ini berdasarkan pliding dan afidavit-afidavit, sama ada betulkah bahawa Akaun Bersesama tersebut merupakan akaun amanah. Untuk itu, berapa kes berkenaan amanah atau pengamanahan adalah dirujuk. [41] Di dalam kes Yong Nyee Fan & Sons Sdn Bhd v Kim Guan & Co Sdn Bhd [1979] 1 MLJ 182, Hashim Yeop A Sani H (YAA pada ketika itu) di dalam membincangkan berkenaan amanah telah berkata di muka surat 188 seperti berikut: “It has been found difficult to give a satisfactory definition of a trust but it has been accepted that the most satisfactory definition is by Professor Keeton which definition is that a trust is the relationship which arises wherever a person called the trustee is compelled in equity to hold property, real or personal, and whether by legal or equitable title, for the benefit of some persons (whom he may be one) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee, but to the beneficiaries or other objects of the trust.”( penekanan oleh mahkamah ini) [42] Manakala Abdul Malik Ishak H ( YA ketika itu) di dalam kes Pathma d/o Naganather & Anor v Nivedita d/o Naganather [2002] 6 MLJ 361 di dalam membincangkan mengenai jenis-jenis amanah, samada amanah nyata, amanah konstruktif (constructive trust) dan amanah tersirat (implied trust), YA telah menyatakan berikut di muka surat 412: “At common law, there are three types of trusts that are recognized, namely, express, the implied and the contructive trusts. An express trust is created when the settler expressly creates the trust for the benefit of the third party or the settler himself as a beneficiary. An express trust can be created formally or informally. In a situation where the settler uses ‘clear and unequivocal words’ (Wan Naimah v Wan Mohamed Nawawai [1974] 1 MLJ 41) in order to manifest his intention to create the trust, there would not be a problem to determine the existence of the trust. An implied trust arises where the circumstances prevailing require the law to presume that a trust was intended to be in existence despite the absence of specific language creating an express trust. A unique example of such a trust would be the resulting trust. In essence, a resulting trust arises by presumption where one party buys a piece of property and registers it in the name of a second party in circumstances where the first party has supplied the money for the purchase. In this way, the registered proprietor is presumed to hold the property on trust for the person who has supplied the money. In Dharmaratna v Dharmaratna [1939] MLJ 310, the presumption that the property was a gift to the registered party was quite overwhelming where the first party that supplied the money was in loco parentis to the second party. A constructive trust, on the other hand, is sometimes referred to as an implied trust. A case in point would be where the court in exercising its equitable jurisdiction, impose a trust on a party who has the control of the property of which he is not entitles to. The trust is presumed to exist otherwise it would be difficult for a person claiming the beneficial interest to the property to stake him claim. It is pertinent to note that constructive trusts have developed by leaps and bounds (Boase v Cluny Rubber Estate Ltd [1913] 1 FMSLR 130; Paruvathy d/p Murugiah v Krishnan s/o Doraisamy [1983] 2 MLJ 121 and Muschinski v Dodds (1985) 160 CLR 503) over the years.” (Penekanan oleh mahkamah ini) [43] Berbalik kepada kes di hadapan mahkamah ini, adalah fakta-fakta yang tidak dipertikaikan bahawa Akaun Bersesama telah dibuka untuk membantu pengurusan hasil bagi perjanjian tersebut dan ianya dikendalikan bersama-sama oleh Plaintif dan Defendan yang mana Plaintif telahpun menempatkan empat (4) orang pekerjanya di tempat Defendan bagi operasi akaun tersebut. Di samping itu, lagi laporan-laporan bulanan adalah disediakan bersama-sama bagi segala hasil jualan yang diterima daripada penjualan stok tersebut dan akaun-akaun adalah diteliti dan diaudit oleh juruaudit dan akauntan Plaintif sendiri. Di dalam ini keadaan ini walaupun urusan perakaunan Akaun Bersesama itu dilaksanakan di tempat Defendan tetapi pengurusan dan pengendalian akaun tersebut tidak dikendalikan atau dikawal oleh Defendan sepenuhnya tetapi ia dikendalikan bersama-sama empat orang pekerja Plaintif yang ditempatkan di tempat Defendan. Apatah lagi laporan-laporan bulanan dan akaun-akaun bagi Akuan Bersesama tersebut diaudit dan diperiksa oleh juruaudit dan akauntan Plaintif. Justeru apa yang jelas di dalam kes ini, Defendan bukanlah penjaga bersendiri (sole guardian) Akaun Bersesama tersebut. Defendan juga tidak mempunyai kawalan sepenuhnya terhadap Akaun Bersesama tersebut di mana Plaintif juga mempunyai kawalan atas Akaun Bersesama ini dengan penempatan empat pekerja di tempat Defendan, justeru berupaya serta dengan mudah sahaja menyemak serta mempunyai akses kepada Akaun Bersesama ini. [44] Dengan yang demikian, walaupun pada asasnya menurut perjanjian tersebut Defendan adalah bertanggungjawab di dalam pengendalian wajar akaun (keeping proper account) bagi pembelian dan penjualan stok melalui Akaun Bersesama tersebut tetapi apabila operasi dan pengendalian Akaun Bersesama tersebut juga dikendalikan oleh Plaintif sepertimana yang di dalam kes ini, adalah dapatan Mahkamah ini, keadaan Akaun Bersesama ini tidak membangkitkan atau mengwujudkan amanah mahupun tanggungjawab fidusiari ke atas Defendan. Apatah lagi di dalam kes ini, Defendan telah membuat tegasan bahawa pada semua masa yang matan pensyarikatan usahasama ini adalah di bawah kawalan de facto Plaintif dan segala urusan pengakaunan adalah di dalam pengetahuan Plaintif termasuklah Akaun Bersesama tersebut. Tegasan ini telah tidak dinafikan langsung oleh Plaintif. Dengan yang demikian, adalah jelas di sini Akaun Bersesama tersebut bukanlah satu akaun berkonsepkan amanah. Isu kelewatan dan akuisens [45] Persoalan seterusnya betulkah wujud kelewatan tidak munasabah dan kelengahan melampau di pihak Plaintif sehingga membangkitkan akuisens terhadap Plaintif yang telah duduk di atas haknya terlalu lama dengan tidak berbuat apa-apa dan Defendan yang bergantung atas akuisens tersebut telah diprejudiskan di dalam membela tindakan terhadapnya. [46] Undang-undang mengenai kelewatan tidak munasabah dan kelengahan melampau pihak untuk meneruskan tindakan dan kuasa mahkamah di dalam membatalkan tindakan atas alasan ini adalah juga mantap dan jelas. [47] Di dalam kes Sri Kelangkota-Rakan Engineering JV Sdn Bhd & 2 Ors v Arab-Malaysian Prima Realty Sdn Bhd & 7 Ors [2001] 2 AMR 1354, Mahkamah Rayuan telah dirujuk kepada penghakiman Lord Blackburn di dalam kes Erlanger v New Sembrero Phosphate Co (1878) 3 App Cas 1218 yang juga telah menerima pakai prinsip yang sama oleh Sir Barnes Peacock dalam kes Board in Lindsay Petroleum Co. v Hurd (1874) LR 5 PC 221 yang menjelaskan mengenai doktrin kelengahan dan kelewatan dalam Mahkamah Ekuiti. Lord Blackburn di muka surat 1279 telah berkata berikut: “The doctrine of laches in Court of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material, but in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, the delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affest either party and cause a balance of justice or injustice.” [48] Sebagai panduan, kes berkaitan pembatalan tindakan atas kegagalan meneruskan tindakan for want of prosecution sesuai juga dirujuk. Di dalam kes Birkett v James [1977] 2 All ER 801, Lord Diplock telah menggariskan prinsip dan garis panduan bagaimana kuasa budi bicara mahkamah perlu dilaksanakan di dalam membatalkan tindakan for want of prosecution yang mana di muka surat 805, beliau berkata: “…I shall refer to as Allen v McAlpine, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to RSC Ord 25 r 1, of the current White Book. The power should be exercised only where contumelious, e.g. disobedience to a peremptory order of the court or conduct been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party. …” [49] Prinsip ini telah diterimapakai di mahkamah-mahkamah di Malaysia dan ini telah dinyatakan dengan jelasnya di dalam kes Toh Hock Thye & Ors v Toh Chwee Biow [1982] 1 MLJ 152 di mana Mahkamah Persekutuan telah memutuskan berikut: (1) the plaintiff’s action is liable to be dismissed for want of prosecution when the court is satisfied that (a) the plaintiffs default has been intentional and contumelious or (b) the plaintiff or his lawyer is guilty of such inordinate and inexcusable delay that the defendant has been prejudiced by it; (2) in his case the appellants having kept the suit in abeyance for five years and three months during which they remained completely inactive and having given no answer nor satisfactory explanation at all as to this inactivity when called upon to do so by the court, were guilty of inordinate and inexcusable delay if not also of intentional and contumelious conduct which entitled the court to dismiss their action for want of prosecution. [50] Di dalam kes Toh Hock Thye & Ors v Toh Chwee Biow ini, Mahkamah Persekutuan telah memutuskan bahawa Perayu yang telah membiarkan tindakan selama lima tahun tiga bulan tanpa mengambil tindakan aktif dan telah tidak memberi penjelasan yang memuaskan atas mengapa tidak ada sebarang tindakan telah diambil dalam tempoh tersebut, maka dalam keadaan ini Perayu adalah bersalah atas kelewatan tidak munasabah dan kelengahan melampau yang menjustifikasikan mahkamah untuk membatalkan tindakan Perayu for want of prosecution. Molek juga dinyatakan disini apa yang dikatakan oleh Salleh Abas HMP (YAA pada ketika itu) di muka surat 504: “…The delay of five years and three months in our view is by no means short. It is long enough to enable a baby to grow into a big child with ability to talk intelligently and be in a kindergarten preparatory to normal schooling. In our view such delay apart from being inordinate and inexcusable has also resulted in adverse affects on the respondent. The prejudice to him here is not merely confined to the possibilities of not having a fair trial or in the form of failing memory of the witnesses or lack of documents and non-availability of witnesses but also encompassing the psychological effect which the suit had on him for having it hung over his head for the last five years or so, (see Biss v Lambeth). If we take into account the totality of the period from the commencement of the cause of action on 2 October 1951, the time span of this would be 28 years 10 months and 24 days. Such a lengthy period is surely too long, extending as it were more than a quarter of a century.” [51] Berbalik kepada kes ini, apa yang nyata tindakan Plaintif telah difailkan pada 25.8.2000. Setelah lapan (8) bulan memfailkan tindakannya, Plaintif telah memfailkan Notis Untuk Menghadiri Pra Perbicaraan Pengawasan Kes pada 25.4.2001 (Eksibit ‘MM-3’). Setelah memfailkan Eksibit ‘MM-3’, tidak ada apa-apa tindakan telah diambil oleh Plaintif untuk meneruskan tindakannya sehinggalah tahun 2014. Setelah mahkamah menetapkan kes untuk pengurusan kes dan arahan-arahan diberikan semasa pengurusan kes Plaintif telah memfailkan (1) Ikatan Pliding, (2) Ikatan Dokumen Plaintif Plaintif (I) dan (II), (3) Pernyataan Isu-Isu Untuk Dibicarakan, (4) Fakta-fakta yang dipersetujui dan (5) Ringkasan Kes. Apa yang jelas dan nyata adalah Plaintif telah tidak mengambil apa-apa tindakan dan berdiam diri selama lebih 13 tahun. Malahan Plaintif telah meletakkan kesalahan kelewatan ini di bahu mahkamah dengan mengatakan fail mahkamah hilang dan tidak dapat dikesan. Memandangkan kes ini merupakan suatu kes sivil, sekiranya Plaintif benar-benar bersungguh untuk meneruskan tindakannya terhadap Defendan apabila pada pertama kali dimaklumkan bahawa fail hilang dan tidak dapat dikesan, Plaintif dengan mudahnya boleh membina semula fail reconstruct file dan seterusnya memfailkan suratcara-suratcara yang sewajarnya untuk perbicaraan penuh dan memohon daripada mahkamah untuk menetapkan kes untuk perbicaraan. Di sini apa yang Plaintif lakukan adalah setakat bertanyakan kedudukan kes kepada Mahkamah tanpa membuat apa-apa tindakan pro-aktif yang dinyatakan tadi. Kes ini adalah tindakan Plaintif untuk menegakkan haknya dan dalam keadaan ini Plaintiflah seharusnya bertindak cergas bagi memastikan kesnya berjalan dan bukanlah meletakkan beban kelewatan itu ke atas Mahkamah. Untuk ini saya suka merujuk kepada apa yang dikatakan oleh Mokhtar Sidin H (YA ketika itu) di dalam kes R Rajasingam v Balwant Singh Purba [1996] 2 MLJ 554: “With the greatest respect, we are of the view that it is not an explanation at all. Even if it is, we don not think it is satisfactory and reasonable and is not acceptable. As can be seen from the record of appeal, the documents involved in reconstruction of the file has less than 40 normal pages. Particularly with there being modern technology to make copies of those documents, we fail to understand why it took 1 ½ years to reconstruct the file. There is no suggestion that some of the documents were missing from the respondent’s file. If it is so, the respondent could easily got them from the appellant or his solicitor. No such request was ever made to the appellant or his solicitor suggesting the documents were available with the respondent all the time. As such we see no reason why it took such a long time for the respondent to file copies of those documents with the registry. In our view, there was inordinate delay on the part of the respondent and his solicitor. In our view, no reasonable excuse had been given for the delay.” [52] Berbalik semula kepada kes ini, memandangkan peguam telah meletakkan kesalahan atas kelewatan Mahkamah, Mahkamah ini telah meneliti dengan terperinci surat-menyurat peguam Plaintif di dalam rekod Mahkamah dan mendapati bahawa surat-surat peguam Plaintif bertanyakan mengenai kedudukan fail hanya bermula pada bulan Ogos 2008 melalui surat mereka bertarikh 5.8.2008 dan kemudian daripada itu, terdapat surat bertarikh 5.1.2009, 16.4.2012 dan surat bertarikh 31.3.2014. Fail ini hanya dibina semula pada 18.6.2014 oleh peguam Plaintif. [53] Pertamanya, perlu dinyatakan di sini surat peguam Plaintif bertanyakan kedudukan kes hanya berlaku selepas tujuh (7) tahun dari tarikh notis pra-pengawasan kes pada 25.4.2001. Dalam tempoh tujuh (7) tahun itu, Plaintif telah berdiam diri dengan tidak melakukan apa-apa tindakan tanpa penjelasan langsung. Keduanya, selepas daripada surat pertama bertarikh 5.8.2008, Plaintif selanjutnya telah mengambil masa selama lebih kurang enam (6) tahun baru mengambil tindakan untuk membina semula fail. Ketiga, dari masa berdiam diri, pertama kali bertanyakan fail dan membina semula fail, Plaintif telah mengambil masa selama tiga belas (13) tahun. Fail yang dibina semula hanya merangkumi 23 mukasurat pliding termasuk terjemahannya. Maka, jika dibandingkan dengan kelewatan di dalam kes R Rajasingam yang mana Plaintif mengambil masa satu setengah (1½) tahun untuk membina semula dokumen sebanyak 40 muka surat dan tempoh tersebut telah diputuskan bahawa ianya adalah suatu kelewatan yang tidak munasabah, maka adalah dapatan Mahkamah ini, nyata tempoh masa tiga belas (13) tahun yang diambil Plaintif untuk membina semula ikatan pliding sebanyak 23 muka surat termasuk terjemahan dan menjilidkan dokumennya sendiri adalah satu kelewatan yang sangat melampau. [54] Mahkamah ini juga bersependapat dengan peguam Defendan bahawa memandangkan Plaintif telah duduk di atas haknya dengan begitu lama, kelewatan tidak munasabah dan kelengahan melampau ini telah menimbulkan prejudis kepada Defendan kerana tempoh masa tiga belas (13) tahun adalah masa yang sebegitu lama dan pastinya ini telah memprejudis Defendan yang antara lain ini tidak membolehkan Defendan mencari bukti dokumen atau keterangan untuk mengemukakan pembelaan yang lengkap dan penuh terhadap tuntutan Plaintif terhadapnya, tidak membolehkan Defendan mencari saksi-saksi bagi menegakkan pembelaan Defendan untuk membela tindakan ini, Defendan terpaksa membuat semakan atas dokumen-dokumen yang tidak boleh dikesan dan ada di antara saksi-saksi yang disenaraikan untuk dipanggil Defendan telahpun meninggal dunia dan empat kakitangan Plaintif dan akauntan yang ditempatkan di tempat Defendan tidak dimaklum sama ada masih bekerja dengan Plaintif lagi atau tidak. Apatah lagi di dalam kes ini kes ini Defendan bukan sahaja terpaksa mengesan saksi-saksi yang bertugas dengannya pada tahun 1991-1993 yakni 21 tahun dahulu tetapi juga saksi-saksi yang bekerja dengan Plaintif pada masa itu yang ditempatkan di tempatnya. Selain daripada saksi-saksi tersebut kes ini juga melibatkan pencarian-pencarian dokumen lama. Adalah menjadi dapatan mahkamah ini bahawa terdapat kelewatan tidak munasabah dan kelengahan melampau di pihak Plaintif dan Plaintif telah gagal memberi penjelasan yang memuaskan atas kelewatan yang tidak menasabah tersebut. Kelewatan tidak munasabah selama 13 tahun dari tarikh pemfailan Eksibit ‘MM-3’ dan jika mengira masa dari kausa tindakan bermula telah memakan masa selama iaitu dua puluh satu (21) tahun. Kelewatan di dalam kes ini adalah tidak syak lagi satu kelengahan yang melampau yang memprejudiskan Defendan. [55] Perlu dinyatakan di sini juga bahawa mahkamah ini sedar bahawa fail telah dibina semula pada 18.6.2014 dan kes ini telahpun ditetapkan untuk perbicaraan pertama kali pada 8 hingga 10.9.2014 tetapi tarikh perbicaraan tersebut telah dilapangkan dengan pemfailan Kandungan 10 ini. Namun begitu, satu soalan akan ditimbulkan iaitu memandangkan kes ini telahpun sampai ke tahap tarikh perbicaraan perbicaraan penuh ditetapkan kenapa tidak mahkamah ini menolak sahaja permohonan Defendan dalam Kandungan 10 untuk membatalkan tuntutan Plaintif dan sewajarnya meneruskan sahaja perbicaraan penuh dengan pemanggilan saksi-saksi. Adalah pandangan dan dapatan mahkamah ini bahawa bilamana jika dari pliding dan afidavit bersama keterangan dokumentar yang ada di hadapan mahkamah ini, pemutusan isu-isu undang-undang yang dibangkitkan daripada perkara fakta-fakta yang tidak dipertikaikan boleh ditentukan oleh mahkamah ini seperti yang telahpun diputuskan. Bagi Mahkamah ini, meneruskan perbicaraan penuh semata-mata atas alasan bahawa suratcara-suratcara bagi perbicaraan penuh telah ditetapkan dan tarikh perbicaraan telah difailkan sedangkan dari pliding-pliding dan afidavit, tuntutan Plaintif adalah satu tuntutan yang jelas dan nyata tidak boleh dipertahankan (plain and obvious Plaintif’s claim is unsustainable) dan tuntutan Plaintif adalah satu tuntutan yang remeh dan temeh (frivolous or vexatious) akan menimbulkan ketidakadilan. Lagipun, di dalam pertimbangan prinsip-prinsip equiti seperti estopel, kelewatan yang melampau atau akuisens (estoppels, laches or ecquiscence) yang ditimbulkan, mahkamah hendaklah menimbangkan segala fakta dan keadaan yang merangkumi kes tersebut and setelah berbuat demikian memutuskan apakah yang adil di dalam kes itu. Di dalam kes di hadapan mahkamah ini, keadilan menuntut mahkamah ini untuk membatalkan tuntutan Plaintif atas kelewatan dan kelengahan melampau. (Sila lihat Sri Kelangkota-Rakan Engineering JV Sdn Bhd & 2 Ord v Arab-Malaysian Prima Realty Sdn Bhd & 7 Ors [2001] 2 AMR 1354 - di muka surat 1387) [56] Atas alasan-alasan di atas, permohonan Defendan di dalam Kandungan 10 adalah dibenarkan dengan kos. [57] Setelah mendengar hujahan ringkas kedua-dua peguam Defendan dan Plaintif mengenai kos bagi permohonan ini, mahkamah telah memerintahkan kos sebanyak RM 8000.00 dibayar kepada Defendan. ...................................................... (DATUK AZIMAH BINTI OMAR) Pesuruhjaya Kehakiman Mahkamah Tinggi NCVC 13 Shah Alam Selangor Darul Ehsan Bertarikh 19hb November 2014 Peguam Plaintif - Tetuan GH Tee & Co Encik N Rajentharan Peguam Defendan - Tetuan Amrit & Co Encik R.K. Sharma Encik Amrit Pal Singh 40

Tika 2.6.0

22NCVC-201-04/2014

PLAINTIF LAKSHMI I/K MALAYANDY DEFENDAN 1. EK HOUSING DEVELOPER SDN BHD 2. NALLAKAN A/L SENBAN 3. PARUWATHY A/P SAMYNATHAN 4. SARASWATHI A/P KARUPPIAH 5. MALAYAN BANKING BERHAD

17/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=89822797-29a1-4102-a4fa-50bff69afb2e&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. 22NCVC-201-04/2014 Antara LAKSHMI I/K MALAYANDY ... PLAINTIFF Dan 1. EK HOUSING DEVELOPER SDN BHD 2. NALLAKAN A/L SENBAN 3. PARUWATHY A/P SAMYNATHAN 4. SARASWATHI A/P KARUPPIAH 5. MALAYAN BANKING BERHAD … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 14) [1] On 21.10.2014, I have allowed the Fifth Defendant’s application in respect of Enclosure 14 for disposal of the Plaintiff’s action against it on a point of law under Order 14A of the Rules of Court 2012 (ROC 2012). [2] The question of law posed by the Fifth Defendant for my determination was this: “Whether the Plaintiff’s purported claim against the Fifth Defendant herein is time barred pursuant to the Limitation Act 1953”. [3] In addition to the determination of the said question of law, the Fifth Defendant also via its Enclosure 14 further sought for several consequential orders should the answer to the question of law be in the affirmative. The consequential orders sought by the Fifth Defendant are as follows: (a) that the Plaintiff’ claim against the Fifth Defendant be dismissed; (b) that the Plaintiff’s claim for reliefs sought in paragraphs 41(a), (b), (e), (f), (i), (k), (l), (m) and paragraphs 41(n), (o), (p), (q) of the Plaintiff's Amended Statement of Claim against the Fifth Defendant be disallowed. [4] Having decided on the said question of law in the affirmative, I have dismissed the Plaintiff’s action against the Fifth Defendant, as well as granted order in terms to the consequential orders prayed for by the Fifth Defendant. [5] The Plaintiff subsequently filed a Notice of Appeal dated 12.11.2014 appealing against my decision. [6] Now, I will give the reasons for my decision but before that it is only appropriate for me to briefly state the factual background of the Plaintiff’s claim as revealed from the pleadings and the affidavits filed before me that give rise to the Fifth Defendant’s application. 6.1 The Plaintiff, a 74 year old woman by the name of Laksmi i/k Malayandy had commenced an action against the five Defendants namely; EK Housing Developer Sdn Bhd (the First Defendant), Nallakan a/l Senban (the Second Defendant), Paruwathy a/p Samynathan (the Third Defendant), Saraswathi a/p Karuppiah (the Fourth Defendant) and Malayan Banking Berhad (the Fifth Defendant). 6.2 The First Defendant is a property developer company incorporated under the Companies Act 1965 known as EK Housing Developer Sdn Bhd. The First Defendant had been wound up by an order of Court on 1.12.2004 and for purposes of pursuing this action, the Plaintiff had obtained the required sanction under section 226(3) of the Companies Act 1965. 6.3 The Second and Third Defendants were the former directors of the First Defendant. 6.4 The Fourth Defendant is the administrator of the estate of one Sin Bin a/l Sinbin (the deceased) and the Fifth Defendant in this case is a financial banking institution. 6.5 In her Writ of Summons and Statement of Claim, the Plaintiff is claiming against the five Defendants for inter alia the following reliefs: (a) Satu perintah Deklarasi bahawa Surat Kuasa Wakil bertarikh 29.05.1989 adalah terbatal dan tidak sah (null and void); dan (b) Satu Perintah Deklarasi bahawa pindahan hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri Selangor yang beralamat No. 34, Taman Sri Meena, Kampung Bukit Naga, Batu 6, Jalan Bukit Kemuning, 40460 Shah Alam di atas nama Defendan Pertama iaitu EK Housing Developer Sdn Bhd dengan menggunakan Surat Kuasa Wakil bertarikh 29.05.1989 adalah terbatal dan tidak sah (null and void); dan (c) Satu Perintah Deklarasi bahawa pindahan hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri; (d) Hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri Selangor yang beralamat No. 34, Taman Sri Meena, Kampung Bukit Naga, Batu 6, Jalan Bukit Kemuning, 40460 Shah Alam tersebut dipindah milik ke atas nama Plaintif tanpa sebarang sekatan; dan (e) Pendaftar Mahkamah Yang Mulia ini menandatangani dokumen-dokumen yang diperlukan untuk menukarkan hartanah-hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri Selangor yang beralamat No. 34, Taman Sri Meena, Kampung Bukit Naga, Batu 6, Jalan Bukit Kemuning, 40460 Shah Alam tersebut ke atas nama Plaintif. 6.6 The Plaintiff’s case is primarily based on her claim that she is the rightful owner of a piece of property held under H.S.(D) 31005, PT 34939, Mukim Klang, Daerah Klang, Negeri Selangor (the said Property) and it was the Plaintiff’s pleaded case that sometime in 1987, the First Defendant was engaged by the Plaintiff as a contractor to build a bungalow on the said land on which the said property was located. For purposes of constructing the bungalow, the Plaintiff claimed she had paid an initial sum of RM12,000.00 and a monthly instalment of RM400.00 to Thamarajah Enterprise and later to the First Defendant until 1993. It was also the Plaintiff’s pleaded case that the First Defendant, the Second Defendant and the Third Defendant had fraudulently transferred the said property to the First Defendant by way of a forged Power of Attorney (the said Power of Attorney) allegedly signed by the Plaintiff. 6.7 In respect of the said Power of Attorney, it was further alleged by the Plaintiff that the First Defendant had executed a sale and purchase agreement with the deceased wherein the said property was sold and subsequently transferred to the deceased. The Plaintiff also alleged that the deceased had also conspired in the fraudulent transactions. The deceased is the present registered owner of the said property. 6.8 The Fifth Defendant first came into the picture in 1991 when it extended its loan facility to the First Defendant. For security of the said loan, the First Defendant, being the registered owner of the said property at that particular time, had charged the said property to the Fifth Defendant. When the said property was transferred to the deceased on 6.4.2004, the deceased had also obtained a loan facility from the Fifth Defendant. The deceased had in turn executed a Memorandum of Charge in favour of the Fifth Defendant as security to the loan facility. Currently the Fifth Defendant is the registered chargee to the said property. [7] The Fifth Defendant refuted the Plaintiff’s claim and in its Statement of Defence, the Fifth Defendant denied having any knowledge of most of the allegations pleaded by the Plaintiff in her Statement of Claim, and puts the Plaintiff to strict proof of such allegations. In its Statement of Defence, apart from denying having any knowledge of the Plaintiff's pleaded case, the Fifth Defendant contends that the Fifth Defendant’s interest on the said property as the registered chargee was obtained in good faith and for a valuable consideration. Further, the Fifth Defendant also pleaded that the Plaintiff’s claim is time barred and there was laches on the part of the Plaintiff in bringing the action against the Fifth Defendant; The Order 14A Application by the Fifth Defendant [8] In support of its application, the Fifth Defendant filed two affidavits affirmed by K. Jayshee Rani a/p Krishnan on 20.8.2014 and 22.9.2014 namely the Affidavit in Support of Enclosure 14 (Enclosure 15) and Affidavit In Reply to Plaintiff’s Affidavit in Opposition to the Plaintiff’s Application (Enclosure 24). [9] In the Affidavit in Support of the Application sworn by K.Jayshee Rani a/p Krishnan, who is the senior executive of the Fifth Defendant, had stated that the Plaintiff knew and/or discovered the alleged forgery and/ or fraud at least by 9.2.1994 when the Plaintiff lodged a private caveat over the said Property. She further stated that the entry of the Plaintiff’s private caveat over the said property was entered on 9.2.1994 as per the endorsement appearing on the copy of land title of the said property. The copy of the land title of the said property with the caveat’s endorsement was exhibited and marked as Exhibit ‘B’ in Enclosure 15. The Fifth Defendant further adduced that the Plaintiff’s position in respect of her knowledge, discovery and her awareness of the alleged fraudulent transaction on the said property on February 9th, 1994 (the latest) was also confirmed by a letter dated 2.1.1997 from the previous solicitors of the Plaintiff, Messrs. Rina Noor & Co. which was addressed to the Fifth Defendant, namely Exhibit ‘A’. The contents of Exhibit ‘A’ can be summarized as follows: (i) the Plaintiff is the beneficial owner of the said property. (ii) the said Property was charged to the Fifth Defendant as security for a loan granted to the First Defendant without the Plaintiff’s knowledge; (iii) the Plaintiff had lodged a private caveat over the said Property; (iv) the Plaintiff wished to redeem the said Property from the Fifth Defendant [10] It was also deposed in the affidavit that the Plaintiff’s caveat over the said property was subsequently removed by the Shah Alam High Court on 11.3.1999. [11] The Fifth Defendant in making this Order 14A application had forwarded three (3) grounds which are:- i. there are undisputed material and relevant facts unraveled from the pleadings and the affidavits in the present case that give rise to the issue of limitation, chiefly is the fact that the Plaintiff knew and/or discovered the alleged forgery and/or fraud at the very least by or on 9.2.1994, when the Plaintiff lodged a private caveat over the said Property. In view of this undisputed fact that Plaintiff discovered the alleged forgery or alleged fraudulent act when she entered the private caveat, the right of action vested on the Plaintiff against the Fifth Defendant had accrued on 9.2.1994, and thus the Plaintiff’s action against the Fifth Defendant is therefore time barred pursuant to the Limitation Act 1953. ii. the aforesaid question of law relating to issue of limitation, a defence which is relied on by the Fifth Defendant is suitable for its determination under Order 14A. iii. the determination of the aforesaid question of law if answered in the affirmative would have the effect of determining or disposing of the Plaintiff’s entire cause of action against the Fifth Defendant. Submission by the Fifth Defendant's counsel [12] It was submitted on behalf of the Fifth Defendant that the Plaintiff’s purported claim is premised on the basis that the said property was allegedly transferred to the First Defendant and later to the deceased by way of a forged Power of Attorney. And hence, the Plaintiff’s purported claim against all the five defendants is an action for recovery of the land, namely the said property. For a claim for recovery of land, section 9(1) of the Limitation Act 1953 (the Act) provides that such action must be brought before the expiration of twelve (12) years from the date on which the right of action accrued to the Plaintiff. [13] The counsel for the Fifth Defendant submitted that the phrases ‘right of action’ and ‘cause of action’ have of the same meaning. On this contention the counsel had brought to my attention two authorities namely, Credit Corporation (M) Bhd v. Fong Tak Sin [1991] 1 MLJ 409 and Tenaga Nasional Bhd v. Kamarstone Sdn Bhd [2014] 2 MLJ 749. (See (i)Credit Corporation (M) Bhd v. Fong Tak Sin [1991] 1 MLJ 409. The Supreme Court had held in this case at page 411:-“From established authorities we can now accept that the cause of action normally accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the Plaintiff to succeed.” ii. Tenaga Nasional Bhd v. Kamarstone Sdn Bhd [2014] 2 MLJ 749. The Federal Court held at pages 758-759:-“[15] In Nasri v Mesah [1971] 1 MLJ 32, the Federal Court per Gill FJ, as he then was, depicted ‘a cause of action’ as follows …[16] Gill FJ, then thus enunciated on ‘the date of accrual’ in the case of a debt:… It would seem clear, therefore, that the expressions ‘the right to sue accrues’, ‘the cause of action accrues’ and ‘the right accrues’ mean one and the same thing when one speaks of the time from which the period of limitation as prescribed by law should run. (Emphasis added.) [17] And Nasri v Mesah, we observe, is still good law (see the Federal Court cases … which followed Nasri v Mesah) which we readily endorse.”) [14] In the present case, It was argued by the counsel for the Fifth Defendant that the Plaintiff’s right of action had accrued the latest on 9.2.1994. The Fifth Defendant's counsel further argued that it is not disputed that Plaintiff had lodged a caveat on the said property on 9.2.1994 when she had discovered or came to know or became aware of alleged fraud and/or alleged forgery. It was further submitted by the Fifth Defendant's counsel that the Plaintiff’s position in respect her knowledge or discovery or awareness of the fraudulent transactions was reflected in the contents of Messrs Rina Noor & Co’s letter dated 2.1.1997 to the Fifth Defendant. Further, it was submitted on behalf of the Fifth Defendant that the Plaintiff herself in paragraph 10 of her Affidavit in Reply 1 (Enclosure 22- Affidavit in Opposing the Fifth Defendant’s application) had admitted caveating the said property on 9.2.1994 and she had the intention to redeem the said property from the Fifth Defendant. Additionally, in paragraph 12.1 of the same affidavit the Plaintiff had affirmed and stated that she knew as early as 9.2.1994 that the First Defendant had charged the said property to the Fifth Defendant. [15] Thus, it is the contention of the Fifth Defendant’s counsel that the date 9.2.1994 is the latest date on which the right of action accrued to the Plaintiff. Since the time vested on the Plaintiff to initiate her action is governed by section 9(1) of the Act and the limitation period provided under the statute is 12 years, the Plaintiff’s purported claim to recover the said property against the Fifth Defendant is therefore time barred as the Plaintiff had only filed this action in 2014, which is 20 years since 9.2.1994. [16] It was also argued by the counsel for the Fifth Defendant that the issue for determination or construction before this court is the issue of limitation on whether the Plaintiff’s action against the Fifth Defendant is time barred pursuant to section 9 of the Act, and therefore the issue is appropriately or suitably dealt with via an Order 14A application. The counsel for the Fifth Defendant had relied on two reported cases which have determined the issue of limitation pursuant to Order 14A of the Rules of the High Court 1980 which is identical with the Order 14A ROC 2012. {See: i..Litus Jau & Anor v Boustead Pelita Tinjar Sdn Bhd & Ors [2014] 1MLJ 794, Court of Appeal ii. Topland Management Corporation Sdn Bhd & Anor v Bank Negara Malaysia [2005] 1LNS 381 (Kuala Lumpur High Court Suit No.D2-22-891-2001)} Submission by the Plaintiff's counsel [17] In resisting the Fifth Defendant’s application, it was argued on behalf of the Plaintiff that this present matter is not an appropriate matter to be determined under Order 14A of the ROC 2012 on the following grounds: i. there are serious disputes of facts between the Plaintiff and the Fifth Defendant with regards to the ownership of the land, transfer of the land, charge, negligence, breach of statutory duty and limitation. ii. the Plaintiff’s action or claim is not time barred as there was an acknowledgement by the deceased on 1.9.2009 to the Plaintiff to settle the redemption sum to the Fifth Defendant and after the settlement of the redemption sum, the deceased will then transfer the land to the Plaintiff. Relying on section 26 of the Act, the Plaintiff contends there was fresh accrual of action and thus, the filing of this present action by the Plaintiff on 22.4.2014 is still within the limitation period as time will only lapse on 1.9.2021. [18] It was further submitted by the Plaintiff’s counsel in support of the first ground that in the present case there existed conflicting allegations of facts and the issues of facts are also interwoven on the legal issues. For this contention, the counsel for the Plaintiff had in his written submission set out all the pleaded facts in the Statement of Claim and the Plaintiff’s depositions in the Plaintiff’s affidavit in opposing the Order 14A application. The Plaintiff’s counsel had even tabulated in his written submission the Plaintiff’s version and Defendant’s version of facts in respect of the matter before me, in order to convince me that there exists conflicting facts [19] In respect of the acknowledgement made by the deceased, it was the argument of the Plaintiff's counsel that this acknowledgement triggered a fresh accrual of action. [20] It was further submitted by the Plaintiff's counsel that the conflicting facts can only be put to rest by way of a full trial upon examination of witnesses. The Plaintiff's counsel further submitted that the Plaintiff, her son Balasubramaniam and the deceased’s administrator have yet to be heard on the fact of the acknowledgement and thus Plaintiff’s suit against the Fifth Defendant should not be dismissed based on an Order 14A application. The Plaintiff's counsel had referred me to several cases and authorities. (See i. Low Chee & Sons Sdn Bhd & Anor v Extreme System Sdn Bhd and Another [2013] 1 MLJ 650. ii. Bukit Cerakah Development Sdn Bhd v L’ Grande Development Sdn Bhd [2008] 3 MLJ 547. iii. Thein Hon Teck v Mohd Afrizan Bin Hussain [2012] 2 MLJ 299 FC. iv. Bernard Thomazios v Tharmaraj Ayadurai a/l Ayadurai & Ors [2007] 8 MLJ 519. v. Tan Kim Beng v Datuk Yen Yin Pang [2012] 1 LNS 1307) The law on Order 14A application [21] Order 14A of the ROC 2012 reads as follows: Determination of questions of law or construction (O. 14A, r.1) 1. (1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that – (a) such question is suitable for determination without the full trial of the action; and (b) such determination will finally determine the entire cause or matter or any claim or issue therein. (2) On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. (4) The jurisdiction of the Court under this Order may be exercised by a Registrar. (5) Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules. [22] In essence, Order 14A provides jurisdiction for the court to determine and dispose a case summarily on a point of law. It is trite law that Order 14A becomes relevant where:- (a) a suitable test to apply is whether all necessary and material facts have been duly admitted; (b) where the point of law depends on the construction of relevant documents and facts in their context. In other words, the court is perfectly entitled to make actual determination on any question of law posed to it, or to determine the construction of any documents, and consequential of to such determination thereafter makes a decision on whether to allow or dismiss the action in an Order 14A application. [23] In the case of Petroliam Nasional Bhd & Anor v Kerajaan Negeri Terengganu [2003] 5 AMR 696 [2004] 1 MLJ 8; [2003] 4 CLJ 337, CA, the Court of Appeal had referred to the principles relating to an application under Order 14A laid down by an English Court of Appeal in the case of Korso Establishment Anstalt v John Wedge (unreported: February 15, 1994: Transcript No.14/387, CA). The principles relating to an application under Order 14A propounded in the case of Korso Establishment Anstalt are that an Order 14A application is appropriate if: (a) an issue is “a disputed point of fact or law relied on by way of claim or defence”. (b) a question of construction is well capable of constituting an issue; (c) if a question of construction will finally determine whether an important issue is suitable for determination under Order 14A and whether it is a dominant feature of the case a court ought to proceed to so determine such issue; and (d) respondents to an application under Order 14A are not entitled to contend they should be allowed to hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the meaning of the relevant document. If there were material circumstances of which court should take account in construing the document, they must be taken to have been known, and could only be such as were known, to the parties when the agreement was made. In the absence of such evidence the court should not refrain from dealing with the application. [24] In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812, it was held by the Court of Appeal that for the court to exercise its power to summarily dispose of an action under Order 14A there should not be any dispute by the parties as to the relevant facts, or that the court upon scrutinizing the pleadings, concludes that the material facts are not in dispute. [25] In Sweet & Maxwell Asia’s Malaysian Civil Procedure 2013 (White Book) at page 129, Order 14A is not appropriate avenue in the following cases: (a) if there are conflicting allegations of facts. All material facts relating to the subject matter of the claim must be undisputed or admitted; and not on the basis of assumed facts: Low Chee & Sons Sdn Bhd & Anor v Extreme System Sdn Bhd (and another appeal) [2012] 2 AMR 704; [2013 1 MLJ 650; Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2008] 6 AMR 640; [2009] 5 MLJ 754, FC; Bukit Cerakah Development Sdn Bhd v L’Grande Development Sdn Bhd [2008] 2 AMR 597; [2008] 3 MLJ 547; Malaysian Newprint Industries Sdn Bhd v Perdana Cigna Insurance Bhd & 2 Ors [2008] 1 AMR 672; [2008] 2 MLJ 256; Seloga Sdn Bhd v UEM Gynisys Sdn Bhd [2008] 2 AMR 477; [2007] 7 MLJ 385, CA. (b) if the issue of fact are interwoven with legal issues raised. The court will not split the legal and factual determination for to do so would in effect be to give rulings in vacuum or on a hypothetical ruling: Thein Hong Teck & 4 Ors v Mohd Afrizan bin Hussain and another appeal [2012] 1 AMR 489; [2012] 2 MLJ 299, FC; Bernard Thomazios v Tharmaraj Ayadurai a/l Ayadurai & Ors [2007] AMEJ 0101; [2007] 8 MLJ 519; Lum Kai Keng v Quek Peng Chai & Ors [2001] 4 SLR 392; State Bank of India v Murjani Marketing (unreported; March 1, 1991, Transcript 91/0304), CA (Eng) per Taylor, LJ; Watson & Anor v Dutton Forshaw Motor Group Ltd & Ors [1998] EWCA Civ 1270 (unreported; July 22, (1998), CA (Eng); and Shell Hong Kong Ltd v Yeung Wai Man Kui Yip Co Ltd [2004] 178 HKCU 1 (decision on April 2, 2004), CA (HK). [26] Having set out the relevant laws and myriad of authorities relating to an Order 14A application, I shall now return to the present case. First, I must consider whether the facts and issues from the affidavits and documentary evidence presented by the parties before me are suitable and appropriate to be adjudicated summarily under Order 14A. To do that, I have to first determine whether there are undisputed or admitted material facts and whether these undisputed material and relevant facts concern an issue or question of law which can be dealt with based on the undisputed evidence. I must also consider whether the determination of the question of law can determine the entire matter before me. [27] It must be borne in mind that the Order 14A application before me is the application by the Fifth Defendant who is the present registered chargee of the said property of which the deceased is the registered owner. It must also be noted that the Fifth Defendant was also the registered chargee of the said property when the Plaintiff registered her private caveat over the said property on 9.2.1994. The registered owner of land title at that particular time was the First Defendant. It is clear from the reliefs sought in paragraph 41 of the Plaintiff’s Statement of Claim in which some of the reliefs claimed I have mentioned in paragraph 6.5 of my judgment, that the Plaintiff’s action before me is an action to recover land. Therefore the time limited for the Plaintiff to file her action is 12 years pursuant to section 9(1) of the Limitation Act from the date when right of action accrued. (See i. Ponnusamy & Anor v Nathu Ram {1959] MLJ 86, ii. Ahmad bin Said v Nacharamal w/o D Subramaniam [1989] 2 CLJ 1192, iii. Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187, iv.Ng Chim & 2 Ors. V. Low Boon Beng [1994] 3 CLJ 203, v Chan Soon Guan & Anor v. Ismail Hj Adnan [2011] 3 CLJ 36) [28] Having established that the time limited for the Plaintiff to bring her action against the Fifth Defendant is 12 years from the date when the right of action accrued, I will now consider the pleadings and affidavits filed by both the Fifth Defendant and the Plaintiff in respect of the Order 14A application and whether the Plaintiff had brought her action before the expiration of twelve (12) years from the date on which the right of action accrued to the Plaintiff. [29] From the facts revealed in the pleadings and affidavits together with the documentary evidence found in the exhibits, I am in agreement with the counsel for the Fifth Defendant that the material and relevant facts on the date of accrual of the Plaintiff’s right of action is undisputed. In the present case the question of when does the Plaintiff’s right of action or cause of action accrues or starts to run which concerns the issue of limitation can be dealt by the undisputed evidence before me. [30] It is trite law that in an action to recover land, the right of action accrues when there was an infringement of such right or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. There is a long line of cases that have decided on this position of law. Suffice for me to cite some of them here. [31] In the case of Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187, in an action for specific performance of an agreement for sale of land where the defendant had raised the defence of limitation, the Federal Court in its judgment had quoted the words of Sir Binod Mitter in the Privy Council case of Bolo v Koklan & Ors AIR 1930 PC 270 at page 188: “There can be no ‘right to sue’ until there is an accrual of, the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” [32] In Ng Chim & 2 Ors. V. Low Boon Beng [1994] 3 CLJ 203 the Supreme Court at pages 804-805 held as follows: “It would have been a straight forward case under s. 9(1) of the Limitation Act because the evidence shows that on 20 May 1972 the plaintiffs were aware and knew of the fact that the defendant had become the sole registered proprietor of the two pieces of land. The date, 20 May 1972 is the date on which the right of action accrued to the Plaintiffs, and when in 1988 they filed this suit for a declaration that they were still the owners of their respective shares in the lands, 16 years had elapsed, i.e. they were 4 years outside the limitation period.” (emphasis added) [33] The Court of Appeal in Chan Soon Guan & Anor v. Ismail Hj Adnan [2011] 3 CLJ 366 held at page 371:- [12] Pursuant to s. 9 of the Limitation Act, no action can be brought to recover any land after the expiration of 12 years from the date on which the right of action accrued. In the present appeal before us, the Plaintiff admits that in late 1979 or early 1980 he became aware that the said properties were transferred to the 2nd Defendant. We are unanimous that this is the material date upon which the plaintiff’s cause of action arose to recover the said lands. Further, in respect of the alleged loan agreement, assuming there is proved to be one, we are unanimous that pursuant to s. 6 of the Limitation Act, the plaintiff’s cause of action arose from the same date referred to above (ie, late 1979 or early 1980) but limited to a period of six years. [13] We are unanimous that the plaintiff’s 2nd suit is caught by the statutory limitation for actions based on contract under s. 6 of the Limitation Act as well as the statutory limitation for recovery of land (based on fraud or otherwise) under s. 9 of the same Act. We are unanimous that the plaintiff’s causes of action, if any, are barred by the Limitation Act.”) [34] In Wan Nafi bin Wan Ismail v. Hajjah Lijah bte Omar & Ors [1996] 5 MLJ 534, the Court held at page 540:- “The Plaintiff filed the suit on 8 July 1989. He claimed he came to have known about the land only in 1972 when he approached DW2 for the return of his land. On the basis of exh D1, he could not now be heard to say that he knew about the land only in 1972. He knew about it as far back as 31 January 1955 at the time when the transfer was affected. He was the one who transferred the land for value. He only activated his right in 1989, that is 34 years later. Even assuming that his ignorance of the transfer of his land is genuine and that he became aware and knew about it only in 1972, that is 17 years before he filed the suit, nevertheless, he was still five years beyond the limitation period (see judgment of Eusoff Chin J (as he then was, now Yang Amat Arif Chief Justice of the Federal Court) in Ng Chim & Ors v Low Boon Beng [1994] 3 AMR 1959 at p 1963). The nature of the claim of the plaintiff is of an action for the recovery of land. Being such a cause of action, it falls within s 9(1) of the Act which, inter alia, bars any action being brought after the expiration of 12 years from the date on which the right of action accrued to him (see Ponnusamy & Anor v Nathu Ram [1959] MLJ 86; Ahmad bin Said v Nacharamal w/o D Subramaniam & Ors [1989] 2 CLJ1192). The concept of limitation is that there must be an end to litigation (per Abdul Malek J (as he then was) in Tengku Ali ibni Almarhum Sultan Sulaiman v Kerajaan Negeri Terengganu Darul Iman [1996] 4 MLJ 37 [35] In the case before me, I agree with the counsel for the Fifth Defendant that it was not disputed that the Plaintiff knew and/or discovered the alleged forgery and/or fraud at least by 9.2.1994 when she lodged a private caveat over the said property. When the Plaintiff took the step to lodge the private caveat, she knew that her right or interest she alleged to have over the said property had been threatened and/or infringed. In order to protect such interest and/or right, registering a caveat over the said property was the most sensible thing to do. At the material time when registration of the caveat was executed as appeared in Exhibit ‘B’ of (15), the Plaintiff also knew that the land was registered under the name of the First Defendant, and the land title also states the charge registered by the Fifth Defendant. The appearance of the charge by the Fifth Defendant on the land title and the fact that the First Defendant was named the registered owner at that material time, clearly shows that there was an infringement of the Plaintiff’s right and/or interest on the said property and that prompted the Plaintiff to lodge the private caveat. However, besides caveating the land, the Plaintiff did nothing more. Three years later in 1997, a letter then came from the Plaintiff's previous solicitors addressed to the Fifth Defendant confirming her act of caveating the said property on 9.2.1994 and further claimed she is the beneficial owner of the said property. In that letter also she also claimed that the said property was charged by the First Defendant as a security for loan to the Fifth Defendant without her knowledge and she wished to redeem the said property from the Fifth Defendant. I must say that this letter fortified the fact that the Plaintiff had all along, since 9.2.1994, knew or had discovered or was aware of the fraudulent transactions affecting her right or interest on the said property. The Plaintiff’s position was further confirmed by her own admission in her own affidavit i.e Enclosure 22 in paragraphs 10.1 and 12.1. [36] The other ground forwarded by the Plaintiff in resisting the Order 14A application in relating to the limitation period is that there was a fresh accrual of action by acknowledgement pursuant to section 26 of the Limitation Act. The Plaintiff pleaded in her Statement of claim and asserted the same in her Affidavit Enclosure 22 that the deceased had acknowledged on 1.9.2009 that there was fraudulent act on his part over the said property and had given his promise to the Plaintiff that he will transfer and register the said property to the Plaintiff. I shall first reproduce the relevant portion of Enclosure 22 relating the acknowledgement:- Saya menegaskan bahawa, pada kesemua masa yang material Simati telah berjanji kepada saya untuk memindahmilik hartanah tersebut ke atas nama saya. Saya juga selalu berulang alik ke rumah Simati, dan setiap kali Simati telah berjanji bahawa Simati akan memindahmilik hartanah tersebut ke atas nama saya. Saya dengan segala hormatnya menyatakan di sini bahawa, saya telah mempercayai kata-kata Simati kerana Simati merupakan darah daging saya sendiri dalam mana, Simati merupakan adik saudara saya. Saya tidak mengambil sebarang tindakan berdasarkan kepada janji Simati dan menunggu untuk hartanah tersebut dipindakmilik oleh Simati kepada Plaintif. Saya menekankan bahawa, Simati sehingga tahun 2009 tidak memindahmilik hartanah tersebut. Maka, anak saya Subramaniam telah berjumpa dengan Simati pada 1 September 2009 dan mengarahkan Simati supaya menyelesaikan isu rumah saya dengan segera dalam mana, Simati telah memberikan janjinya yang terakhir untuk memindahmilik hartanah tersebut ke atas nama saya. Secara lanjutnya, saya menegaskan bahawa, Simati telah membawa saya dan Balasubramaniam ke Ibu Pejabat Defendan Ke-5 untuk membincangkan mengenai isu hartanah tersebut; dalam mana Simati telah berjanji untuk membayar hutang yang tertunggak terhadap hartanah tersebut dan memindahmilik hartanah tersebut ke atas nama saya. Akan tetapi, saya menekankan bahawa, Simati telah meninggal dunia pada 3 Oktober 2010. [37] By this acknowledgement it was submitted that the Plaintiff’s cause of action or Plaintiff’s right of action had accrued afresh, and only start to run from 1.9.2009 and will lapse in 2021. Hence, it was argued by the Plaintiff that her action was filed well within the permitted time. [38] The law on fresh accrual of action by acknowledgement or part payment under section 26 of the Limitation 1953 is trite and settled. Section 26 reads as follows: Section 26. Fresh accrual of action on acknowledgment or part payment. (1) Where there has accrued any right of action to recover land or to enforce a mortgage or charge in respect of land or personal property, and – (a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or (b) in the case of any such action by a mortgagee or charge the person in possession as aforesaid or the person liable for the debt secured by the mortgage or charge makes any payment in respect thereof, whether principal or interest, the right shall be deemed to have accrued on and not before the date of the acknowledgment or last payment. Section 26 must be read together with the preceding section 27. Section 27 reads as follows:- Section 27. Formal provisions as to acknowledgments and part payments. (1) Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment. (2) Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made. [39] In the case which was brought to my attention by the Fifth Defendant’s counsel, the case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749, the Federal Court in this case had emphasized the legal provision of section 27 which sets out the manner of acknowledgement required under section 26 and held this at page 766: “ [28] Section 27 of the Act provides that the aforesaid acknowledgement must be in writing and duly signed by the person making it: (a) Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment. (b) Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.” (emphasis added) [40] I agree with the counsel for Fifth Defendant that in the present case, Enclosure 22 (the Plaintiff’s affidavit in opposing the Fifth Defendant’s application) did not even verify whether the alleged acknowledgement was given in writing and signed by the deceased. In this regard, it must be noted that the Plaintiff had deposed this acknowledgement in her affidavit by mere assertion of such acknowledgement in the affidavit. No evidence in a documented form was exhibited by the Plaintiff to support the assertion. Given the failure of the Plaintiff to exhibit any document to support the acknowledgment claimed by her, the irresistible assumption is that there was no acknowledgement in writing and the depositions remained bare assertions or allegations and mere afterthoughts. More so in the present case the person who was alleged to had made the acknowledgment has since passed away and evidence in rebuttal would be impossible. [41] Even assuming for a moment that such acknowledgement did exist, the acknowledgement could not be taken as a fresh accrual of action or right of action for two reasons. Firstly, the alleged acknowledgment allegedly made by the deceased on 1.9.2009 was given after the expiry of the limitation period. Here, the Plaintiff’s right of action or cause of action of 12 years begun to run from 9.2.1994 and had lapsed on 9.2.2006. Hence, the acknowledgement is deemed ineffective. The Singapore Court of Appeal in the case of Tan Hin Choon & Ors v Ban Hin Lee Bank Ltd [1972] 2 MLJ 211 in adopting the English courts’ decision on acknowledgement made after the expiry of the limitation period, held this at page 216: “ Wright v Pepin {1954] 2 All ER 52 at pages 55,56 is authority for the proposition that the old rule stated in In re Alison and Sanders v Sanders (1881) 19 Ch D 373 that an acknowledgement after expiry of the limitation period is effective still applies,” Secondly, as aptly submitted by the counsel for the Fifth Defendant the alleged acknowledgment was not made by the Fifth Defendant and as such the acknowledgement has no consequence on the Fifth Defendant. The deceased was the borrower of the loan obtained from the Fifth Defendant, and his relationship with the Fifth Defendant was merely on the basis of a customer and banker relationship. I must add that the deceased has no authority over the Fifth Defendant nor was he an agent or representative of the Fifth Defendant who is capable to give or make an acknowledgment on behalf of the Fifth Defendant. [42] I agree with the submission of the counsel for the Fifth Defendant that the long list of facts set out by the Plaintiff to show that there was conflicting allegation of facts or dispute of facts has no bearing on the determination of the question of law posed before me. To determine the question of law on the issue of limitation, it is abundantly clear in the present case that material and relevant facts relating to the time of the accrual of Plaintiff’s right of action was not in dispute. The Plaintiff had not disputed such fact, and I emphasis there was plain and obvious admission by the Plaintiff on those facts. In my view the only issue that requires my determination and adjudication is whether the Plaintiff’s purported claim against the Fifth Defendant herein is time barred pursuant to the Limitation Act 1953. [43] The next question to consider is whether based on the affidavit evidence filed before this court, does the issue of limitation as posed by the Fifth Defendant dispose of the whole matter or the entire action if determined by the Court. [44] Based on the reasons above, since the Plaintiff’s action was filed on 22.4 2014, twenty years after the date (the latest date) of the Plaintiff discovering the alleged fraudulent transactions affecting the Plaintiff’s right or interest on the said property, the action, in my view, is clearly time barred by section 9 of the Limitation Act 1953. Thus my answer to the question posed is in the affirmative. Consequential to the above findings, I have allowed the Fifth Defendant’s application in Enclosure 14 and granted order in terms for the prayers herein. As to costs [45] After hearing brief submissions from both counsels on the issue of costs, I had made an order that the Plaintiff do pay the Fifth Defendant costs of RM10,000.00 t.t. .................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court NCVC 13 Shah Alam Selangor Darul Ehsan Dated the 17th November 2014 For the Plaintiff - Tetuan Ganeson Gomathy & Partners Miss Gomathy Balasupramaniam For the Fifth Defendant - Tetuan Christopher & Lee Ong Mr John Mathew a/l Mathai 31

Tika 2.6.0

22NCVC-201-04/2014

PLAINTIF LAKSHMI I/K MALAYANDY DEFENDAN 1. EK HOUSING DEVELOPER SDN BHD 2. NALLAKAN A/L SENBAN 3. PARUWATHY A/P SAMYNATHAN 4. SARASWATHI A/P KARUPPIAH 5. MALAYAN BANKING BERHAD

17/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=89822797-29a1-4102-a4fa-50bff69afb2e&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO. 22NCVC-201-04/2014 Antara LAKSHMI I/K MALAYANDY ... PLAINTIFF Dan 1. EK HOUSING DEVELOPER SDN BHD 2. NALLAKAN A/L SENBAN 3. PARUWATHY A/P SAMYNATHAN 4. SARASWATHI A/P KARUPPIAH 5. MALAYAN BANKING BERHAD … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 14) [1] On 21.10.2014, I have allowed the Fifth Defendant’s application in respect of Enclosure 14 for disposal of the Plaintiff’s action against it on a point of law under Order 14A of the Rules of Court 2012 (ROC 2012). [2] The question of law posed by the Fifth Defendant for my determination was this: “Whether the Plaintiff’s purported claim against the Fifth Defendant herein is time barred pursuant to the Limitation Act 1953”. [3] In addition to the determination of the said question of law, the Fifth Defendant also via its Enclosure 14 further sought for several consequential orders should the answer to the question of law be in the affirmative. The consequential orders sought by the Fifth Defendant are as follows: (a) that the Plaintiff’ claim against the Fifth Defendant be dismissed; (b) that the Plaintiff’s claim for reliefs sought in paragraphs 41(a), (b), (e), (f), (i), (k), (l), (m) and paragraphs 41(n), (o), (p), (q) of the Plaintiff's Amended Statement of Claim against the Fifth Defendant be disallowed. [4] Having decided on the said question of law in the affirmative, I have dismissed the Plaintiff’s action against the Fifth Defendant, as well as granted order in terms to the consequential orders prayed for by the Fifth Defendant. [5] The Plaintiff subsequently filed a Notice of Appeal dated 12.11.2014 appealing against my decision. [6] Now, I will give the reasons for my decision but before that it is only appropriate for me to briefly state the factual background of the Plaintiff’s claim as revealed from the pleadings and the affidavits filed before me that give rise to the Fifth Defendant’s application. 6.1 The Plaintiff, a 74 year old woman by the name of Laksmi i/k Malayandy had commenced an action against the five Defendants namely; EK Housing Developer Sdn Bhd (the First Defendant), Nallakan a/l Senban (the Second Defendant), Paruwathy a/p Samynathan (the Third Defendant), Saraswathi a/p Karuppiah (the Fourth Defendant) and Malayan Banking Berhad (the Fifth Defendant). 6.2 The First Defendant is a property developer company incorporated under the Companies Act 1965 known as EK Housing Developer Sdn Bhd. The First Defendant had been wound up by an order of Court on 1.12.2004 and for purposes of pursuing this action, the Plaintiff had obtained the required sanction under section 226(3) of the Companies Act 1965. 6.3 The Second and Third Defendants were the former directors of the First Defendant. 6.4 The Fourth Defendant is the administrator of the estate of one Sin Bin a/l Sinbin (the deceased) and the Fifth Defendant in this case is a financial banking institution. 6.5 In her Writ of Summons and Statement of Claim, the Plaintiff is claiming against the five Defendants for inter alia the following reliefs: (a) Satu perintah Deklarasi bahawa Surat Kuasa Wakil bertarikh 29.05.1989 adalah terbatal dan tidak sah (null and void); dan (b) Satu Perintah Deklarasi bahawa pindahan hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri Selangor yang beralamat No. 34, Taman Sri Meena, Kampung Bukit Naga, Batu 6, Jalan Bukit Kemuning, 40460 Shah Alam di atas nama Defendan Pertama iaitu EK Housing Developer Sdn Bhd dengan menggunakan Surat Kuasa Wakil bertarikh 29.05.1989 adalah terbatal dan tidak sah (null and void); dan (c) Satu Perintah Deklarasi bahawa pindahan hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri; (d) Hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri Selangor yang beralamat No. 34, Taman Sri Meena, Kampung Bukit Naga, Batu 6, Jalan Bukit Kemuning, 40460 Shah Alam tersebut dipindah milik ke atas nama Plaintif tanpa sebarang sekatan; dan (e) Pendaftar Mahkamah Yang Mulia ini menandatangani dokumen-dokumen yang diperlukan untuk menukarkan hartanah-hartanah yang dikenali sebagai HS(D) 31005, PT34939, Mukim Daerah Klang, Negeri Selangor yang beralamat No. 34, Taman Sri Meena, Kampung Bukit Naga, Batu 6, Jalan Bukit Kemuning, 40460 Shah Alam tersebut ke atas nama Plaintif. 6.6 The Plaintiff’s case is primarily based on her claim that she is the rightful owner of a piece of property held under H.S.(D) 31005, PT 34939, Mukim Klang, Daerah Klang, Negeri Selangor (the said Property) and it was the Plaintiff’s pleaded case that sometime in 1987, the First Defendant was engaged by the Plaintiff as a contractor to build a bungalow on the said land on which the said property was located. For purposes of constructing the bungalow, the Plaintiff claimed she had paid an initial sum of RM12,000.00 and a monthly instalment of RM400.00 to Thamarajah Enterprise and later to the First Defendant until 1993. It was also the Plaintiff’s pleaded case that the First Defendant, the Second Defendant and the Third Defendant had fraudulently transferred the said property to the First Defendant by way of a forged Power of Attorney (the said Power of Attorney) allegedly signed by the Plaintiff. 6.7 In respect of the said Power of Attorney, it was further alleged by the Plaintiff that the First Defendant had executed a sale and purchase agreement with the deceased wherein the said property was sold and subsequently transferred to the deceased. The Plaintiff also alleged that the deceased had also conspired in the fraudulent transactions. The deceased is the present registered owner of the said property. 6.8 The Fifth Defendant first came into the picture in 1991 when it extended its loan facility to the First Defendant. For security of the said loan, the First Defendant, being the registered owner of the said property at that particular time, had charged the said property to the Fifth Defendant. When the said property was transferred to the deceased on 6.4.2004, the deceased had also obtained a loan facility from the Fifth Defendant. The deceased had in turn executed a Memorandum of Charge in favour of the Fifth Defendant as security to the loan facility. Currently the Fifth Defendant is the registered chargee to the said property. [7] The Fifth Defendant refuted the Plaintiff’s claim and in its Statement of Defence, the Fifth Defendant denied having any knowledge of most of the allegations pleaded by the Plaintiff in her Statement of Claim, and puts the Plaintiff to strict proof of such allegations. In its Statement of Defence, apart from denying having any knowledge of the Plaintiff's pleaded case, the Fifth Defendant contends that the Fifth Defendant’s interest on the said property as the registered chargee was obtained in good faith and for a valuable consideration. Further, the Fifth Defendant also pleaded that the Plaintiff’s claim is time barred and there was laches on the part of the Plaintiff in bringing the action against the Fifth Defendant; The Order 14A Application by the Fifth Defendant [8] In support of its application, the Fifth Defendant filed two affidavits affirmed by K. Jayshee Rani a/p Krishnan on 20.8.2014 and 22.9.2014 namely the Affidavit in Support of Enclosure 14 (Enclosure 15) and Affidavit In Reply to Plaintiff’s Affidavit in Opposition to the Plaintiff’s Application (Enclosure 24). [9] In the Affidavit in Support of the Application sworn by K.Jayshee Rani a/p Krishnan, who is the senior executive of the Fifth Defendant, had stated that the Plaintiff knew and/or discovered the alleged forgery and/ or fraud at least by 9.2.1994 when the Plaintiff lodged a private caveat over the said Property. She further stated that the entry of the Plaintiff’s private caveat over the said property was entered on 9.2.1994 as per the endorsement appearing on the copy of land title of the said property. The copy of the land title of the said property with the caveat’s endorsement was exhibited and marked as Exhibit ‘B’ in Enclosure 15. The Fifth Defendant further adduced that the Plaintiff’s position in respect of her knowledge, discovery and her awareness of the alleged fraudulent transaction on the said property on February 9th, 1994 (the latest) was also confirmed by a letter dated 2.1.1997 from the previous solicitors of the Plaintiff, Messrs. Rina Noor & Co. which was addressed to the Fifth Defendant, namely Exhibit ‘A’. The contents of Exhibit ‘A’ can be summarized as follows: (i) the Plaintiff is the beneficial owner of the said property. (ii) the said Property was charged to the Fifth Defendant as security for a loan granted to the First Defendant without the Plaintiff’s knowledge; (iii) the Plaintiff had lodged a private caveat over the said Property; (iv) the Plaintiff wished to redeem the said Property from the Fifth Defendant [10] It was also deposed in the affidavit that the Plaintiff’s caveat over the said property was subsequently removed by the Shah Alam High Court on 11.3.1999. [11] The Fifth Defendant in making this Order 14A application had forwarded three (3) grounds which are:- i. there are undisputed material and relevant facts unraveled from the pleadings and the affidavits in the present case that give rise to the issue of limitation, chiefly is the fact that the Plaintiff knew and/or discovered the alleged forgery and/or fraud at the very least by or on 9.2.1994, when the Plaintiff lodged a private caveat over the said Property. In view of this undisputed fact that Plaintiff discovered the alleged forgery or alleged fraudulent act when she entered the private caveat, the right of action vested on the Plaintiff against the Fifth Defendant had accrued on 9.2.1994, and thus the Plaintiff’s action against the Fifth Defendant is therefore time barred pursuant to the Limitation Act 1953. ii. the aforesaid question of law relating to issue of limitation, a defence which is relied on by the Fifth Defendant is suitable for its determination under Order 14A. iii. the determination of the aforesaid question of law if answered in the affirmative would have the effect of determining or disposing of the Plaintiff’s entire cause of action against the Fifth Defendant. Submission by the Fifth Defendant's counsel [12] It was submitted on behalf of the Fifth Defendant that the Plaintiff’s purported claim is premised on the basis that the said property was allegedly transferred to the First Defendant and later to the deceased by way of a forged Power of Attorney. And hence, the Plaintiff’s purported claim against all the five defendants is an action for recovery of the land, namely the said property. For a claim for recovery of land, section 9(1) of the Limitation Act 1953 (the Act) provides that such action must be brought before the expiration of twelve (12) years from the date on which the right of action accrued to the Plaintiff. [13] The counsel for the Fifth Defendant submitted that the phrases ‘right of action’ and ‘cause of action’ have of the same meaning. On this contention the counsel had brought to my attention two authorities namely, Credit Corporation (M) Bhd v. Fong Tak Sin [1991] 1 MLJ 409 and Tenaga Nasional Bhd v. Kamarstone Sdn Bhd [2014] 2 MLJ 749. (See (i)Credit Corporation (M) Bhd v. Fong Tak Sin [1991] 1 MLJ 409. The Supreme Court had held in this case at page 411:-“From established authorities we can now accept that the cause of action normally accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the Plaintiff to succeed.” ii. Tenaga Nasional Bhd v. Kamarstone Sdn Bhd [2014] 2 MLJ 749. The Federal Court held at pages 758-759:-“[15] In Nasri v Mesah [1971] 1 MLJ 32, the Federal Court per Gill FJ, as he then was, depicted ‘a cause of action’ as follows …[16] Gill FJ, then thus enunciated on ‘the date of accrual’ in the case of a debt:… It would seem clear, therefore, that the expressions ‘the right to sue accrues’, ‘the cause of action accrues’ and ‘the right accrues’ mean one and the same thing when one speaks of the time from which the period of limitation as prescribed by law should run. (Emphasis added.) [17] And Nasri v Mesah, we observe, is still good law (see the Federal Court cases … which followed Nasri v Mesah) which we readily endorse.”) [14] In the present case, It was argued by the counsel for the Fifth Defendant that the Plaintiff’s right of action had accrued the latest on 9.2.1994. The Fifth Defendant's counsel further argued that it is not disputed that Plaintiff had lodged a caveat on the said property on 9.2.1994 when she had discovered or came to know or became aware of alleged fraud and/or alleged forgery. It was further submitted by the Fifth Defendant's counsel that the Plaintiff’s position in respect her knowledge or discovery or awareness of the fraudulent transactions was reflected in the contents of Messrs Rina Noor & Co’s letter dated 2.1.1997 to the Fifth Defendant. Further, it was submitted on behalf of the Fifth Defendant that the Plaintiff herself in paragraph 10 of her Affidavit in Reply 1 (Enclosure 22- Affidavit in Opposing the Fifth Defendant’s application) had admitted caveating the said property on 9.2.1994 and she had the intention to redeem the said property from the Fifth Defendant. Additionally, in paragraph 12.1 of the same affidavit the Plaintiff had affirmed and stated that she knew as early as 9.2.1994 that the First Defendant had charged the said property to the Fifth Defendant. [15] Thus, it is the contention of the Fifth Defendant’s counsel that the date 9.2.1994 is the latest date on which the right of action accrued to the Plaintiff. Since the time vested on the Plaintiff to initiate her action is governed by section 9(1) of the Act and the limitation period provided under the statute is 12 years, the Plaintiff’s purported claim to recover the said property against the Fifth Defendant is therefore time barred as the Plaintiff had only filed this action in 2014, which is 20 years since 9.2.1994. [16] It was also argued by the counsel for the Fifth Defendant that the issue for determination or construction before this court is the issue of limitation on whether the Plaintiff’s action against the Fifth Defendant is time barred pursuant to section 9 of the Act, and therefore the issue is appropriately or suitably dealt with via an Order 14A application. The counsel for the Fifth Defendant had relied on two reported cases which have determined the issue of limitation pursuant to Order 14A of the Rules of the High Court 1980 which is identical with the Order 14A ROC 2012. {See: i..Litus Jau & Anor v Boustead Pelita Tinjar Sdn Bhd & Ors [2014] 1MLJ 794, Court of Appeal ii. Topland Management Corporation Sdn Bhd & Anor v Bank Negara Malaysia [2005] 1LNS 381 (Kuala Lumpur High Court Suit No.D2-22-891-2001)} Submission by the Plaintiff's counsel [17] In resisting the Fifth Defendant’s application, it was argued on behalf of the Plaintiff that this present matter is not an appropriate matter to be determined under Order 14A of the ROC 2012 on the following grounds: i. there are serious disputes of facts between the Plaintiff and the Fifth Defendant with regards to the ownership of the land, transfer of the land, charge, negligence, breach of statutory duty and limitation. ii. the Plaintiff’s action or claim is not time barred as there was an acknowledgement by the deceased on 1.9.2009 to the Plaintiff to settle the redemption sum to the Fifth Defendant and after the settlement of the redemption sum, the deceased will then transfer the land to the Plaintiff. Relying on section 26 of the Act, the Plaintiff contends there was fresh accrual of action and thus, the filing of this present action by the Plaintiff on 22.4.2014 is still within the limitation period as time will only lapse on 1.9.2021. [18] It was further submitted by the Plaintiff’s counsel in support of the first ground that in the present case there existed conflicting allegations of facts and the issues of facts are also interwoven on the legal issues. For this contention, the counsel for the Plaintiff had in his written submission set out all the pleaded facts in the Statement of Claim and the Plaintiff’s depositions in the Plaintiff’s affidavit in opposing the Order 14A application. The Plaintiff’s counsel had even tabulated in his written submission the Plaintiff’s version and Defendant’s version of facts in respect of the matter before me, in order to convince me that there exists conflicting facts [19] In respect of the acknowledgement made by the deceased, it was the argument of the Plaintiff's counsel that this acknowledgement triggered a fresh accrual of action. [20] It was further submitted by the Plaintiff's counsel that the conflicting facts can only be put to rest by way of a full trial upon examination of witnesses. The Plaintiff's counsel further submitted that the Plaintiff, her son Balasubramaniam and the deceased’s administrator have yet to be heard on the fact of the acknowledgement and thus Plaintiff’s suit against the Fifth Defendant should not be dismissed based on an Order 14A application. The Plaintiff's counsel had referred me to several cases and authorities. (See i. Low Chee & Sons Sdn Bhd & Anor v Extreme System Sdn Bhd and Another [2013] 1 MLJ 650. ii. Bukit Cerakah Development Sdn Bhd v L’ Grande Development Sdn Bhd [2008] 3 MLJ 547. iii. Thein Hon Teck v Mohd Afrizan Bin Hussain [2012] 2 MLJ 299 FC. iv. Bernard Thomazios v Tharmaraj Ayadurai a/l Ayadurai & Ors [2007] 8 MLJ 519. v. Tan Kim Beng v Datuk Yen Yin Pang [2012] 1 LNS 1307) The law on Order 14A application [21] Order 14A of the ROC 2012 reads as follows: Determination of questions of law or construction (O. 14A, r.1) 1. (1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that – (a) such question is suitable for determination without the full trial of the action; and (b) such determination will finally determine the entire cause or matter or any claim or issue therein. (2) On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. (4) The jurisdiction of the Court under this Order may be exercised by a Registrar. (5) Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules. [22] In essence, Order 14A provides jurisdiction for the court to determine and dispose a case summarily on a point of law. It is trite law that Order 14A becomes relevant where:- (a) a suitable test to apply is whether all necessary and material facts have been duly admitted; (b) where the point of law depends on the construction of relevant documents and facts in their context. In other words, the court is perfectly entitled to make actual determination on any question of law posed to it, or to determine the construction of any documents, and consequential of to such determination thereafter makes a decision on whether to allow or dismiss the action in an Order 14A application. [23] In the case of Petroliam Nasional Bhd & Anor v Kerajaan Negeri Terengganu [2003] 5 AMR 696 [2004] 1 MLJ 8; [2003] 4 CLJ 337, CA, the Court of Appeal had referred to the principles relating to an application under Order 14A laid down by an English Court of Appeal in the case of Korso Establishment Anstalt v John Wedge (unreported: February 15, 1994: Transcript No.14/387, CA). The principles relating to an application under Order 14A propounded in the case of Korso Establishment Anstalt are that an Order 14A application is appropriate if: (a) an issue is “a disputed point of fact or law relied on by way of claim or defence”. (b) a question of construction is well capable of constituting an issue; (c) if a question of construction will finally determine whether an important issue is suitable for determination under Order 14A and whether it is a dominant feature of the case a court ought to proceed to so determine such issue; and (d) respondents to an application under Order 14A are not entitled to contend they should be allowed to hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the meaning of the relevant document. If there were material circumstances of which court should take account in construing the document, they must be taken to have been known, and could only be such as were known, to the parties when the agreement was made. In the absence of such evidence the court should not refrain from dealing with the application. [24] In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812, it was held by the Court of Appeal that for the court to exercise its power to summarily dispose of an action under Order 14A there should not be any dispute by the parties as to the relevant facts, or that the court upon scrutinizing the pleadings, concludes that the material facts are not in dispute. [25] In Sweet & Maxwell Asia’s Malaysian Civil Procedure 2013 (White Book) at page 129, Order 14A is not appropriate avenue in the following cases: (a) if there are conflicting allegations of facts. All material facts relating to the subject matter of the claim must be undisputed or admitted; and not on the basis of assumed facts: Low Chee & Sons Sdn Bhd & Anor v Extreme System Sdn Bhd (and another appeal) [2012] 2 AMR 704; [2013 1 MLJ 650; Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2008] 6 AMR 640; [2009] 5 MLJ 754, FC; Bukit Cerakah Development Sdn Bhd v L’Grande Development Sdn Bhd [2008] 2 AMR 597; [2008] 3 MLJ 547; Malaysian Newprint Industries Sdn Bhd v Perdana Cigna Insurance Bhd & 2 Ors [2008] 1 AMR 672; [2008] 2 MLJ 256; Seloga Sdn Bhd v UEM Gynisys Sdn Bhd [2008] 2 AMR 477; [2007] 7 MLJ 385, CA. (b) if the issue of fact are interwoven with legal issues raised. The court will not split the legal and factual determination for to do so would in effect be to give rulings in vacuum or on a hypothetical ruling: Thein Hong Teck & 4 Ors v Mohd Afrizan bin Hussain and another appeal [2012] 1 AMR 489; [2012] 2 MLJ 299, FC; Bernard Thomazios v Tharmaraj Ayadurai a/l Ayadurai & Ors [2007] AMEJ 0101; [2007] 8 MLJ 519; Lum Kai Keng v Quek Peng Chai & Ors [2001] 4 SLR 392; State Bank of India v Murjani Marketing (unreported; March 1, 1991, Transcript 91/0304), CA (Eng) per Taylor, LJ; Watson & Anor v Dutton Forshaw Motor Group Ltd & Ors [1998] EWCA Civ 1270 (unreported; July 22, (1998), CA (Eng); and Shell Hong Kong Ltd v Yeung Wai Man Kui Yip Co Ltd [2004] 178 HKCU 1 (decision on April 2, 2004), CA (HK). [26] Having set out the relevant laws and myriad of authorities relating to an Order 14A application, I shall now return to the present case. First, I must consider whether the facts and issues from the affidavits and documentary evidence presented by the parties before me are suitable and appropriate to be adjudicated summarily under Order 14A. To do that, I have to first determine whether there are undisputed or admitted material facts and whether these undisputed material and relevant facts concern an issue or question of law which can be dealt with based on the undisputed evidence. I must also consider whether the determination of the question of law can determine the entire matter before me. [27] It must be borne in mind that the Order 14A application before me is the application by the Fifth Defendant who is the present registered chargee of the said property of which the deceased is the registered owner. It must also be noted that the Fifth Defendant was also the registered chargee of the said property when the Plaintiff registered her private caveat over the said property on 9.2.1994. The registered owner of land title at that particular time was the First Defendant. It is clear from the reliefs sought in paragraph 41 of the Plaintiff’s Statement of Claim in which some of the reliefs claimed I have mentioned in paragraph 6.5 of my judgment, that the Plaintiff’s action before me is an action to recover land. Therefore the time limited for the Plaintiff to file her action is 12 years pursuant to section 9(1) of the Limitation Act from the date when right of action accrued. (See i. Ponnusamy & Anor v Nathu Ram {1959] MLJ 86, ii. Ahmad bin Said v Nacharamal w/o D Subramaniam [1989] 2 CLJ 1192, iii. Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187, iv.Ng Chim & 2 Ors. V. Low Boon Beng [1994] 3 CLJ 203, v Chan Soon Guan & Anor v. Ismail Hj Adnan [2011] 3 CLJ 36) [28] Having established that the time limited for the Plaintiff to bring her action against the Fifth Defendant is 12 years from the date when the right of action accrued, I will now consider the pleadings and affidavits filed by both the Fifth Defendant and the Plaintiff in respect of the Order 14A application and whether the Plaintiff had brought her action before the expiration of twelve (12) years from the date on which the right of action accrued to the Plaintiff. [29] From the facts revealed in the pleadings and affidavits together with the documentary evidence found in the exhibits, I am in agreement with the counsel for the Fifth Defendant that the material and relevant facts on the date of accrual of the Plaintiff’s right of action is undisputed. In the present case the question of when does the Plaintiff’s right of action or cause of action accrues or starts to run which concerns the issue of limitation can be dealt by the undisputed evidence before me. [30] It is trite law that in an action to recover land, the right of action accrues when there was an infringement of such right or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. There is a long line of cases that have decided on this position of law. Suffice for me to cite some of them here. [31] In the case of Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187, in an action for specific performance of an agreement for sale of land where the defendant had raised the defence of limitation, the Federal Court in its judgment had quoted the words of Sir Binod Mitter in the Privy Council case of Bolo v Koklan & Ors AIR 1930 PC 270 at page 188: “There can be no ‘right to sue’ until there is an accrual of, the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” [32] In Ng Chim & 2 Ors. V. Low Boon Beng [1994] 3 CLJ 203 the Supreme Court at pages 804-805 held as follows: “It would have been a straight forward case under s. 9(1) of the Limitation Act because the evidence shows that on 20 May 1972 the plaintiffs were aware and knew of the fact that the defendant had become the sole registered proprietor of the two pieces of land. The date, 20 May 1972 is the date on which the right of action accrued to the Plaintiffs, and when in 1988 they filed this suit for a declaration that they were still the owners of their respective shares in the lands, 16 years had elapsed, i.e. they were 4 years outside the limitation period.” (emphasis added) [33] The Court of Appeal in Chan Soon Guan & Anor v. Ismail Hj Adnan [2011] 3 CLJ 366 held at page 371:- [12] Pursuant to s. 9 of the Limitation Act, no action can be brought to recover any land after the expiration of 12 years from the date on which the right of action accrued. In the present appeal before us, the Plaintiff admits that in late 1979 or early 1980 he became aware that the said properties were transferred to the 2nd Defendant. We are unanimous that this is the material date upon which the plaintiff’s cause of action arose to recover the said lands. Further, in respect of the alleged loan agreement, assuming there is proved to be one, we are unanimous that pursuant to s. 6 of the Limitation Act, the plaintiff’s cause of action arose from the same date referred to above (ie, late 1979 or early 1980) but limited to a period of six years. [13] We are unanimous that the plaintiff’s 2nd suit is caught by the statutory limitation for actions based on contract under s. 6 of the Limitation Act as well as the statutory limitation for recovery of land (based on fraud or otherwise) under s. 9 of the same Act. We are unanimous that the plaintiff’s causes of action, if any, are barred by the Limitation Act.”) [34] In Wan Nafi bin Wan Ismail v. Hajjah Lijah bte Omar & Ors [1996] 5 MLJ 534, the Court held at page 540:- “The Plaintiff filed the suit on 8 July 1989. He claimed he came to have known about the land only in 1972 when he approached DW2 for the return of his land. On the basis of exh D1, he could not now be heard to say that he knew about the land only in 1972. He knew about it as far back as 31 January 1955 at the time when the transfer was affected. He was the one who transferred the land for value. He only activated his right in 1989, that is 34 years later. Even assuming that his ignorance of the transfer of his land is genuine and that he became aware and knew about it only in 1972, that is 17 years before he filed the suit, nevertheless, he was still five years beyond the limitation period (see judgment of Eusoff Chin J (as he then was, now Yang Amat Arif Chief Justice of the Federal Court) in Ng Chim & Ors v Low Boon Beng [1994] 3 AMR 1959 at p 1963). The nature of the claim of the plaintiff is of an action for the recovery of land. Being such a cause of action, it falls within s 9(1) of the Act which, inter alia, bars any action being brought after the expiration of 12 years from the date on which the right of action accrued to him (see Ponnusamy & Anor v Nathu Ram [1959] MLJ 86; Ahmad bin Said v Nacharamal w/o D Subramaniam & Ors [1989] 2 CLJ1192). The concept of limitation is that there must be an end to litigation (per Abdul Malek J (as he then was) in Tengku Ali ibni Almarhum Sultan Sulaiman v Kerajaan Negeri Terengganu Darul Iman [1996] 4 MLJ 37 [35] In the case before me, I agree with the counsel for the Fifth Defendant that it was not disputed that the Plaintiff knew and/or discovered the alleged forgery and/or fraud at least by 9.2.1994 when she lodged a private caveat over the said property. When the Plaintiff took the step to lodge the private caveat, she knew that her right or interest she alleged to have over the said property had been threatened and/or infringed. In order to protect such interest and/or right, registering a caveat over the said property was the most sensible thing to do. At the material time when registration of the caveat was executed as appeared in Exhibit ‘B’ of (15), the Plaintiff also knew that the land was registered under the name of the First Defendant, and the land title also states the charge registered by the Fifth Defendant. The appearance of the charge by the Fifth Defendant on the land title and the fact that the First Defendant was named the registered owner at that material time, clearly shows that there was an infringement of the Plaintiff’s right and/or interest on the said property and that prompted the Plaintiff to lodge the private caveat. However, besides caveating the land, the Plaintiff did nothing more. Three years later in 1997, a letter then came from the Plaintiff's previous solicitors addressed to the Fifth Defendant confirming her act of caveating the said property on 9.2.1994 and further claimed she is the beneficial owner of the said property. In that letter also she also claimed that the said property was charged by the First Defendant as a security for loan to the Fifth Defendant without her knowledge and she wished to redeem the said property from the Fifth Defendant. I must say that this letter fortified the fact that the Plaintiff had all along, since 9.2.1994, knew or had discovered or was aware of the fraudulent transactions affecting her right or interest on the said property. The Plaintiff’s position was further confirmed by her own admission in her own affidavit i.e Enclosure 22 in paragraphs 10.1 and 12.1. [36] The other ground forwarded by the Plaintiff in resisting the Order 14A application in relating to the limitation period is that there was a fresh accrual of action by acknowledgement pursuant to section 26 of the Limitation Act. The Plaintiff pleaded in her Statement of claim and asserted the same in her Affidavit Enclosure 22 that the deceased had acknowledged on 1.9.2009 that there was fraudulent act on his part over the said property and had given his promise to the Plaintiff that he will transfer and register the said property to the Plaintiff. I shall first reproduce the relevant portion of Enclosure 22 relating the acknowledgement:- Saya menegaskan bahawa, pada kesemua masa yang material Simati telah berjanji kepada saya untuk memindahmilik hartanah tersebut ke atas nama saya. Saya juga selalu berulang alik ke rumah Simati, dan setiap kali Simati telah berjanji bahawa Simati akan memindahmilik hartanah tersebut ke atas nama saya. Saya dengan segala hormatnya menyatakan di sini bahawa, saya telah mempercayai kata-kata Simati kerana Simati merupakan darah daging saya sendiri dalam mana, Simati merupakan adik saudara saya. Saya tidak mengambil sebarang tindakan berdasarkan kepada janji Simati dan menunggu untuk hartanah tersebut dipindakmilik oleh Simati kepada Plaintif. Saya menekankan bahawa, Simati sehingga tahun 2009 tidak memindahmilik hartanah tersebut. Maka, anak saya Subramaniam telah berjumpa dengan Simati pada 1 September 2009 dan mengarahkan Simati supaya menyelesaikan isu rumah saya dengan segera dalam mana, Simati telah memberikan janjinya yang terakhir untuk memindahmilik hartanah tersebut ke atas nama saya. Secara lanjutnya, saya menegaskan bahawa, Simati telah membawa saya dan Balasubramaniam ke Ibu Pejabat Defendan Ke-5 untuk membincangkan mengenai isu hartanah tersebut; dalam mana Simati telah berjanji untuk membayar hutang yang tertunggak terhadap hartanah tersebut dan memindahmilik hartanah tersebut ke atas nama saya. Akan tetapi, saya menekankan bahawa, Simati telah meninggal dunia pada 3 Oktober 2010. [37] By this acknowledgement it was submitted that the Plaintiff’s cause of action or Plaintiff’s right of action had accrued afresh, and only start to run from 1.9.2009 and will lapse in 2021. Hence, it was argued by the Plaintiff that her action was filed well within the permitted time. [38] The law on fresh accrual of action by acknowledgement or part payment under section 26 of the Limitation 1953 is trite and settled. Section 26 reads as follows: Section 26. Fresh accrual of action on acknowledgment or part payment. (1) Where there has accrued any right of action to recover land or to enforce a mortgage or charge in respect of land or personal property, and – (a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or (b) in the case of any such action by a mortgagee or charge the person in possession as aforesaid or the person liable for the debt secured by the mortgage or charge makes any payment in respect thereof, whether principal or interest, the right shall be deemed to have accrued on and not before the date of the acknowledgment or last payment. Section 26 must be read together with the preceding section 27. Section 27 reads as follows:- Section 27. Formal provisions as to acknowledgments and part payments. (1) Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment. (2) Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made. [39] In the case which was brought to my attention by the Fifth Defendant’s counsel, the case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749, the Federal Court in this case had emphasized the legal provision of section 27 which sets out the manner of acknowledgement required under section 26 and held this at page 766: “ [28] Section 27 of the Act provides that the aforesaid acknowledgement must be in writing and duly signed by the person making it: (a) Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment. (b) Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.” (emphasis added) [40] I agree with the counsel for Fifth Defendant that in the present case, Enclosure 22 (the Plaintiff’s affidavit in opposing the Fifth Defendant’s application) did not even verify whether the alleged acknowledgement was given in writing and signed by the deceased. In this regard, it must be noted that the Plaintiff had deposed this acknowledgement in her affidavit by mere assertion of such acknowledgement in the affidavit. No evidence in a documented form was exhibited by the Plaintiff to support the assertion. Given the failure of the Plaintiff to exhibit any document to support the acknowledgment claimed by her, the irresistible assumption is that there was no acknowledgement in writing and the depositions remained bare assertions or allegations and mere afterthoughts. More so in the present case the person who was alleged to had made the acknowledgment has since passed away and evidence in rebuttal would be impossible. [41] Even assuming for a moment that such acknowledgement did exist, the acknowledgement could not be taken as a fresh accrual of action or right of action for two reasons. Firstly, the alleged acknowledgment allegedly made by the deceased on 1.9.2009 was given after the expiry of the limitation period. Here, the Plaintiff’s right of action or cause of action of 12 years begun to run from 9.2.1994 and had lapsed on 9.2.2006. Hence, the acknowledgement is deemed ineffective. The Singapore Court of Appeal in the case of Tan Hin Choon & Ors v Ban Hin Lee Bank Ltd [1972] 2 MLJ 211 in adopting the English courts’ decision on acknowledgement made after the expiry of the limitation period, held this at page 216: “ Wright v Pepin {1954] 2 All ER 52 at pages 55,56 is authority for the proposition that the old rule stated in In re Alison and Sanders v Sanders (1881) 19 Ch D 373 that an acknowledgement after expiry of the limitation period is effective still applies,” Secondly, as aptly submitted by the counsel for the Fifth Defendant the alleged acknowledgment was not made by the Fifth Defendant and as such the acknowledgement has no consequence on the Fifth Defendant. The deceased was the borrower of the loan obtained from the Fifth Defendant, and his relationship with the Fifth Defendant was merely on the basis of a customer and banker relationship. I must add that the deceased has no authority over the Fifth Defendant nor was he an agent or representative of the Fifth Defendant who is capable to give or make an acknowledgment on behalf of the Fifth Defendant. [42] I agree with the submission of the counsel for the Fifth Defendant that the long list of facts set out by the Plaintiff to show that there was conflicting allegation of facts or dispute of facts has no bearing on the determination of the question of law posed before me. To determine the question of law on the issue of limitation, it is abundantly clear in the present case that material and relevant facts relating to the time of the accrual of Plaintiff’s right of action was not in dispute. The Plaintiff had not disputed such fact, and I emphasis there was plain and obvious admission by the Plaintiff on those facts. In my view the only issue that requires my determination and adjudication is whether the Plaintiff’s purported claim against the Fifth Defendant herein is time barred pursuant to the Limitation Act 1953. [43] The next question to consider is whether based on the affidavit evidence filed before this court, does the issue of limitation as posed by the Fifth Defendant dispose of the whole matter or the entire action if determined by the Court. [44] Based on the reasons above, since the Plaintiff’s action was filed on 22.4 2014, twenty years after the date (the latest date) of the Plaintiff discovering the alleged fraudulent transactions affecting the Plaintiff’s right or interest on the said property, the action, in my view, is clearly time barred by section 9 of the Limitation Act 1953. Thus my answer to the question posed is in the affirmative. Consequential to the above findings, I have allowed the Fifth Defendant’s application in Enclosure 14 and granted order in terms for the prayers herein. As to costs [45] After hearing brief submissions from both counsels on the issue of costs, I had made an order that the Plaintiff do pay the Fifth Defendant costs of RM10,000.00 t.t. .................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court NCVC 13 Shah Alam Selangor Darul Ehsan Dated the 17th November 2014 For the Plaintiff - Tetuan Ganeson Gomathy & Partners Miss Gomathy Balasupramaniam For the Fifth Defendant - Tetuan Christopher & Lee Ong Mr John Mathew a/l Mathai 31

Tika 2.6.0

23NCVC-17-04/2013

PLAINTIF SANDOSH A/L JN ANANDAN DEFENDAN SIVAJANAM A/L SANGARAPILLAI

14/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9ed0d4fc-1420-442a-8414-59e55252e0a6&Inline=true

Microsoft Word - 23NCVC-17-04-2013 Sandosh al JN Anandhan v Sivanagnam al Sangapillai 1    IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 23NCVC-17-04/2013 BETWEEN SANDOSH A/L JN ANANDAN .... PLAINTIFF AND SIVAJANAM A/L SANGARAPILLAI .... DEFENDANT GROUNDS OF JUDGMENT (After Full trial) [1] The Plaintiff (Sandosh s/o JN Anandan) is a practicing lawyer who runs his own sole proprietor practice under the name Tetuan Sandosh Anandan. [2] The Defendant (Sivajanam s/o Sangarapillai) is an individual residing at No. 3, Jalan Mohd Tahir 20, Taman Sri Klang, 41200, Klang Selangor Darul Ehsan and was formerly the client of the Plaintiff. 2    [3] The Plaintiff in this case had commenced this civil action against the Defendant claiming for damages in the form of general, exemplary and punitive, for tort of defamation in respect of two letters dated 12.2.2013 and 15.3.2013 written by the Defendant to the Plaintiff in the course of their solicitor and client relationship. [4] The Defendant had sent the letter dated 12/2/2013 via fax on 13/2/2013 and the Plaintiff had received it on 14/2/2013. While the letter dated 15/3/2013 was also sent via fax by the Defendant on 15/3/2013 and was received by the Plaintiff on 19/3/2013. The factual background giving rise to the defamation action by the Plaintiff is as follows: [5] The Defendant’s daughter by the name of Kavita had on 9.5.1994 purchased a condominium unit known as No. 15A-5-Block A, Type B d’Haven (No. 15A-5 unit) from a developer, MH Resort Sdn. Bhd. (MH Resort) at a purchase price of RM221,880.00. [6] Later, both Kavita and MH Resort had agreed to substitute the No. 15A-5 unit to a new unit known as No. 7A-6 (the said property) for the price of RM222,880.00. [7] Thereafter vacant possession of the said property was delivered to Kavita on 15.11.1997. Despite the vacant possession of the said property was delivered to Kavita in 1997 she could not move in into the said property immediately as the Certificate of Fitness of the said 3    property was not obtained by MH Resort. The Certificate of Fitness was only obtained in 2006. [8] Due to the delay on the part of MH Resort to obtain the Certificate of Fitness of the said property, Kavita claimed that she is deprived of obtaining benefits from the said property in terms of its occupation or rentals. [9] On 13.12.1999, Kavita had executed a Power Of Attorney in favour of the Defendant empowering the Defendant to act on her behalf in respect of the said property. [10] The Defendant thereafter had engaged Messrs. Rajadevan & Associate to initiate a civil action against MH Resort in the Shah Alam High Court. [11] On 29.7.2009, a judgment was entered in favour of the Defendant and among the order obtained by the Defendant against MH Resort was that MH Resort pay the damages for the losses sustained by Kavita for being unable to rent out the property from December 1999 until the Certificate of Fitness is obtained. The damages is to be assessed by the Senior Assistant Registrar (SAR). [12] Before the assessment of damages is carried out by the SAR, the Plaintiff was engaged by the Defendant to take over the conduct of the matter in place of Messrs. Rajadevan & Associates. 4    [13] Upon his appointment as solicitor for the Defendant, the Plaintiff had proceeded to render his services and represented the Defendant for the following proceedings: (a) Assessment of damages Shah Alam High Court Originating Summons no. MT4 (MT3)-24-640-2006; b) Appeal against the judgment dated 25/8/2010 of Shah Alam High Court; c) Notice pursuant to section 218 of the Companies Act 1965, Shah Alam High Court originating summons No. MT4 (MT3)- 24-640-2006; d) Garnishee Proceedings vide originating summons of No. MT4 (MT3)-24-640-2006; e) Intervenor: D’Haven Condominium Management Shah Alam High Court “SAHC” Originating Summons No. MT4 (MT3)-24- 640-2006; f) Settlement Agreement dated 10/05/2012. [14] After settlement of the Defendant’s matter, the Plaintiff thereafter had issued a bill for the legal fees/charges incurred for rendering his professional services to the Defendant. 5    [15] In response to the bill, the Defendant had disputed the bill and also questioned the credibility of the Plaintiff as a solicitor. Hence, it has trigged exchange of communications between the Plaintiff and Defendant which has led to the two letters sent to the Plaintiff by the Defendant. [16] The Plaintiff had contended that the statements contained in the two letters had maliciously defamed him. The two letters are reproduced here: (i) Letter dated 12.2.2013: “No. 3, Jalan Mohd Tahir 20 Taman Sri Klang Jalan Raja Nong 41200 Klang 12th February 2013 M/s Sandosh Anandan Advocates & Solicitors Unit A502, Block A Kelana Jaya 47301 Petaling Jaya Attention : Mr. Sandosh Anandan Dear Sirs, Re: (i) Shah Alam High Court Originating Summons No. MT4 (MT3)- 24-640-2006 6    Inspection of Unit 7A-6, d’Haven Condominium Klang (ii) Klang Sessions Court Summons No. 52-2143-05 Your letter dated 2nd January 2013 on the above matter refers. As directed by your goodself, I did meet with the Developer on the defects noted in the unit. He (Mr. Loo) has refused to attend to the said defects. One of the terms of the Settlement Agreement is that the unit is habitable/tenantable and complies with the Fourth Schedule of the Sale and Purchase Agreement dated 9th May 1994. To liaise with the Developer’s Solicitors on the defects by you is only ancillary assignment on one of the conditions in the Settlement Agreement which rightly should have been finalized before the stamping of the said Settlement Agreement. At the material time of preparation of the Settlement Agreement, I did bring to your attention about the simultaneous availability of a habitable/ tenantable unit and a reasonably placed car park. Your reply was not to place the cart before the horse. Please note that the car park allocated could be described as God’s forsaken place, the last lot at a dead and (difficult to go in and more difficult to come out). Is this what an early purchaser like me gets? You too in a correspondence dated 3rd September 2012 had stated that the status of the unit is a non-issue as it has to comply with the Sale and Purchase Agreement which is currently inclusive of the Supplemental Agreement and that has to be met. The issue of a habitable unit has been raised since early 2012 and is mentioned in your letter dated 1st March 2012 to M/s Kamal Hashim Pury & Lim. This has not been dispute by them either. 7    At the material time of me signing the Settlement Agreement, you did not mention that this document would not attract any fees and yet currently rectify an anomaly, committed in your over enthusiasm to push through the Settlement Agreement with total disregard to whether the other three terms in the Settlement Agreement were in a position to be simultaneously implemented had misled your thoughts that money settles all issues, has been shown to be wrong and yet you ironically demand payment up front to cover your short comings. If only the Settlement Agreement had been diligently executed matters would not have reached this stage. Currently the Settlement Agreement has become an antiquated document. Who is responsible for this Legal Flaw? Why should I be burdened with these legal costs? As to the quantum of legal fees due, this issue will be settled at an appropriate platform. As to your suggestion, I Am agreeable to appoint another lawyer to takeover and proceed with the matter at hand. Please confirm that you are agreeable to handover to the new lawyer all original court papers, documents and all monies held by you currently. Thank you. Yours faithfully, t.t (S. Sivagnanam PPN. PJK)” 8    (ii) Letter dated 15.3.2013: “No. 3, Jalan Mohd Tahir 20 Taman Sri Klang Jalan Raja Nong 41200 Klang 15th March 2013 M/s Sandosh Anandan Advocates & Solicitors Unit A502, Block A Kelana Square No. 17, Jalan SS 7/26 Kelana Jaya 47301 Petaling Jaya Attention : Mr. Sandosh Anandan Dear Sirs, Re : (i) Shah Alam High Court Originating Summons No. MT4 (MT3)-24-640-2006 Unit 7A-6, d’Haven Condo, Klang, Repair yet to be undertaken. (ii) Klang Session Court Summons No. 52-2143-05 _______________________________________________________ Your letter dated 1st March under the above caption refers. 9    As the writer of letter dated 12th February 2013, I wish to state that I have no reason to insult or to make any unnecessary inference. What I wrote is as I see the delayed implementation of the Shah Alam High Court Decision. For example, the Settlement Agreement was documented on 10th May 2012. One of the terms – a habitable/tenantable unit is still pending and 10 months have passed with no end in sight. Since the time of Michael Nathan’s case in October 2005 to current, all my correspondence to your office has been by ordinary email. Of late, for fast delivery, I am able to use my friend’s office fax machine for the remittance of my correspondence. As to your past suggestion I am agreeable to appoint another lawyer to takeover and proceed with the matter at hand. I had also mentioned this is my letter of 12th February 2013. Please confirm that you are agreeable to handover to the new lawyer all original court papers, documents and monies less fees held by you currently. However monies withheld in excess of what is due to you, my opinion, will be contested. Please give the chance of lawyer matter your immediate attention. Thank you. Yours faithfully, t.t. (S. Sivagnanam PPN. PJK)” Plaintiff’s case [17] It is the Plaintiff’s case that the statements in the letters dated 12/2/2013 and 15/3/2013 are defamatory in nature and/ or libel 10    against the Plaintiff, whereby the original and natural meaning of the statements is understood to be, among others that:- a) The Plaintiff is an Advocate & Solicitor who has no potential, b) The Plaintiff is a person who is without professional ethics, c) The Plaintiff is a person who is not trustworthy, d) The Plaintiff is a liar, e) The Plaintiff is not a responsible person; f) The Plaintiff is a person who is not competent; g) The Plaintiff is a person who is incapable or inefficient in his work as a solicitor; h) The Plaintiff is a person who cannot be trusted in fulfilling his responsibilities in respect of his client’s work. [18] The Plaintiff in his statement of claim had also pleaded that by way of insulting innuendos contained in the Defendant’s letter dated 12/2/2013 & 15/2/2013 which are defamatory and/ or libel towards the Plaintiff and is taken to mean and understood in other words to mean that: 11    a) The Plaintiff is a person who is greedy; b) The Plaintiff has committed a fraudulent act towards the Defendant; c) The Plaintiff has conspired with the MH Resort & MH Realty; d) The Plaintiff is incapable of resolving the Defendant’s case; e) The Plaintiff has waived Kavita’s and/or the Defendant’s rights; f) The Plaintiff has no integrity; [19] Arising from alleged malicious and libellous statements contained in both the letters, the Plaintiff claims he had sustained distress, difficulty, pain and suffering and humiliation. Defendant’s case [20] The Defendant has disputed the Plaintiff’s claim and defended his actions by contending that the statements in the impugned letters were not meant to defame the Plaintiff. The Defendant contends inter alia: a) The letters are not defamatory b) There was no publication of the letters. 12    c) The said letters were addressed to the Plaintiff and were not published to any third party. d) The statements does not refer to the Plaintiff as the two letters were sent to the Plaintiff reasonably and in the normal course of business. e) The Defendant sent the said letters to the Plaintiff in the same manner as in the past that is by fax. f) The Plaintiff did not direct the Defendant not to send letters through fax and the Plaintiff’s fax number is in the Plaintiff’s office. [21] In justifying his action, the Defendant contended that the impugned letters were sent to the Plaintiff as a result of the Plaintiff’s failure to take the necessary and appropriate action in the course of his conduct as solicitor for the Defendant in respect of the said property. Hence, it was the contention of the Defendant that even if the statements contained in the impugned letters are defamatory in nature and there was publication of the malicious statements, it was the duty and the legal and social obligation of the Defendant. And therefore the defence of qualified privilege is available to the Defendant. The Defendant also pleaded the defence of fair comment under section 9 of the Defamation Act 1957. 13    The Law [22] It is trite law that for the Plaintiff to succeed in his defamation suit against the Defendant, the Defendant must prove three elements namely: (i) that the statements in both the letters must carry defamatory ascription. (ii) the defamatory statements must refer to him. (iii) the defamatory statements must be published to a third party (publication) (See i. Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315. ii. Kian Lup Construction v. Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32 @ 41. iii. Ismail Shamsudin v. Abdul Aziz Abdan [2007] 8 CLJ 65 @ 68-69). [23] Now the issues to be determined here is, firstly, whether the statements contained in the letters are defamatory. Secondly, whether the statements referred to the Plaintiff. Thirdly, whether there was publication of the statements to the third party and fourthly, whether the defence of qualified privilege and/ or fair comment under section 9 of the Defamation Act 1957applicable to the Defendant. 14    First issue - Whether the statements are defamatory [24] Clearly, upon reading of the impugned statements, this Court is of the considered view that these statements are defamatory in nature. The statements when it is read and understood in their natural and ordinary meaning (a meaning in which reasonable man of ordinary intelligence would be likely to understand them) gave the meaning and was understood that: a) the Plaintiff was only interested in the Defendant monies, not the duties and professional obligation to the Defendant as his client. b) the Plaintiff has not carried out his duty as a solicitor professionally and thus was incompetent, as the Plaintiff did not attend to items (ii), (iii) and (iv) simultaneously being settled at time of signing of Settlement Agreement by Defendant with the Developer. [25] This Court finds the statements were indeed defamatory and libellous. Second issue - Whether the impugned statements refer to the Plaintiff. 15    [26] The question of the said statements referring to the Plaintiff is patently clear. Both letters were written to the attention of the Plaintiff and was meant for the Plaintiff. Third issue - Whether the impugned statements was published to a third party (whether there is publication) [27] What constitutes publication of a defamatory statement has been explained and illustrated by the Supreme Court in the case of S. Pakianathan v. Jenni Ibrahim & Another case [1988] 1 CLJ Rep: 233 wherein the Supreme Court has held that: “In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the Plaintiff. By publication is meant the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written. The uttering of a libel to the party libeled is no publication for the purposes of a civil action. Wenhak v. Morgan [1880] 20 QBO at page 637. A Plaintiff will not, as a rule, be permitted to wait until after discovery before naming the persons to whom a libel was published: Barham v. Lord Huntingfield [1913] 2 KB 193, CA”. [28] In Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315. Dzaiddin Abdullah J (as his Lordship then was) concluded that there was publication of defamatory words to a third party in the case before his Lordship. In concluding there was sufficient publication to a third person, at page 316 his Lordship said this: “In support of the said averment, the Plaintiff called Miss Ooi Ah Moi (PW2) to testify that at the material time she was employed by the 16    Plaintiff in his firm as a general clerk. Her duties included the opening of files and correspondences received by the firm. When shown exh P5, she stated that she remembered opening it. She read its contents, searched for the connecting file and passed it for the Plaintiff’s attention. Under cross-examination, she stated that she also carried out secretarial duties for the Plaintiff. She received an average of ten letters per day and normally opened these letters and read their contents. The letter P5 together with the file was given to the Plaintiff personally. In addition exh P5 was also sent to Perianayagam, who was the defendant’s agent. Upon these evidence, I am satisfied and I hold that there is sufficient publication to a third person.” [29] Before this court, the counsel for the Plaintiff had submitted that there was publication of the defamatory statements to a third party in the present case as the said letters were sent to the Plaintiff through the facsimile machine. The Plaintiff’s Legal Assistant, Ms Loh Yun Ping (PW2) had testified that the said faxed letters from the Defendant were received by the staff of the Plaintiff to be recorded. She also stated in her evidence that all faxed letters or mails (post or otherwise) received will be taken by the staff. The staff will then record the faxed letters or mails in the incoming mail book and then put them into the folder for review by solicitors and chambering students. It will then be circulated. She further stated that all letters or mails are then sent to the Plaintiff who thereafter proceeded to forward the same to her and finally viewed by the Plaintiff’s staff i.e the clerk in charge of the file by the name of Kalamani Sundaram. The counsel for Plaintiff in his submission had placed great reliance 17    on his Lordship Dzaiddin J’s decision and submitted that the present case falls squarely on Ayob’s case with regard to publication to a third party. [30] This Court is entirely in agreement with the Plaintiff counsel’s submission. The defamatory statements were indeed published to a third party in this case. Fourth issue - whether the defence of qualified privilege, fair comment under section 9 of the Defamation Act 1957 applicable to the Defendant. [27] Now, in light of this Court’s earlier finding that the fax transmitted by the Defendant to the Plaintiff was indeed a libellous conduct, the Court shall delve into the defences pleaded by the defendant. One of which is the defence of qualified privilege. [28] From the outset, it needs to be noted that the Defendant’s Written Submission over his defences are brazenly brief. There was very little reference made to any particular evidence and/or documents to support the Defendant’s contentions on his defences. Defence of Qualified Privilege [29] Nonetheless, it had come to the understanding of the Court, that the fulcrum of the defence of qualified privilege is the Defendant’s contention that it is the right of the Defendant to correspond to the 18    Plaintiff as an interested party as their solicitors with regards to an alleged non-compliance of the Settlement Agreement executed between the Defendant and MH. The particulars of the alleged non- compliance are reproduced as follows: i. The damages of RM 212, 869.54 ii. Documents for the replacement unit iii. Handing over of a habitable unit with one set of keys iv. Covered car park. [30] The term for damages were admitted to have been in compliance and only these three particulars itemised above had been alleged to have not been complied with by the Plaintiff. [31] It was also contended that the four terms above was supposed to have been settled simultaneously. The Law on Qualified Privilege [32] This Court finds assistance from the high court decision of Mohd Zawawi Salleh J in the case of Sivabalan P Asapathy v The New Straits Times Press (M) Bhd [2010] CLJ at page 900, para. 34 in understanding the requisite elements in proving the defence of qualified privilege: 19    “[34] On this point, it is appropriate to refer to the judgment of Lord Carswell in the case of Edward Seaga v. Leslie Harper, Privy Council Appeal No. 90 of 2006, [2008] UKPC 9. There, his Lordship had this to say: 5. The defence of qualified privilege, like so many other doctrines of the common law, developed over a period of time, commencing in the 19th century, and is still in the process of development. The history is conveniently summarized in the judgment of Dunn LJ in Blackshaw v. Lord [1984] QB 1, 33-4, drawing on the argument of Sir Valentine Holmes KC in Pereira v. Peiris [1949] AC 1, 9. By the time of the decision of the Court of Appeal in Purcell v. Sowler [1877] 2 CPD 215 it was assuming its recognisable modern form. It is founded upon the need to permit the making of statements where there is a duty, legal, social or moral, or sufficient interest on the part or the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, so long as they are made without malice, that is to say, honestly and without any indirect of improper motive. It is the occasion on which the statement is made without the privilege, and under the traditional common law doctrine there must be a reciprocity of duty and interest: Adam v. Ward [1917] AC 309, 334, per Lord Atkinson. The development of the law is accurately and conveniently expressed in Duncan and Neill on Defamation, 2nd ed (1983), para 14.04: From the broad general principle that certain communications should be protected by qualified privilege 'in the general interest of society', the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication.” (emphasis added) [33] Now, it had reached to this Court’s understanding that the most pertinent element to be deliberated upon is the existence of malice and/or improper motive. Both parties have contended to this issue regarding malice. The Plaintiff had at length submitted in proving malice in the defendant’s fax while the defendant had submitted 20    (though very briefly) on the correctness of the fax and that there was no improper motive or malice in transmitting the fax. [34] Indeed, as deliberated in case of Ayob Saud v TS Sambanthamurthi [1989] 1 MLJ 315 HC, his Lordship Mohamed Dzaidin J (as he then was) had delved into the issue of malice in the defence of qualified privilege: “Where a defence of qualified privilege is set up, as in the present case, the burden lies on the defendant to prove that he made the statement honestly, and without any indirect or improper motive. Then, if he succeeds in establishing qualified privilege, the burden is shifted to the plaintiff in this case to show actual or express malice which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged…”(emphasis added) [35] The same was echoed in the recent Court of Appeal decision in the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 at para 36: “In the defence of qualified privilege, the underlying exonerating element is that the defamatory statements were made without malice. The law is that it lies on the plaintiff to show that there was malice that had actuated the defendant when he published the impugned statements.” First element: Interest and rights to communicate to the Plaintiff [36] This Court shall first, address the other requisites in proving the defence of qualified privilege. Firstly, the Defendant must prove that they have such rights or interest to express their grievances to the 21    Plaintiff’s staff. This Court would not go as far as to deny that a client’s rights to communicate to his or her lawyers. Nonetheless, the supposed right or interest to communicate the defamatory fax in the present case hinges upon the allegation of non-compliance against the Plaintiff. These non-compliances shall be discussed and decided together with the third element below. Second element: Recipient has interest or duty to receive communication [37] Secondly, it is this Court’s finding that the Plaintiff’s staff, is not a recipient having a corresponding interest or duty to receive such defamatory statements. Unlike in the case of Sanmugam Panmugam Ponnan v Halijah Abbas & Suriyati Hasimah Mohd Hashim [2013] 1 LNS 257, the Court had dealt with a publication of defamatory material unto the third party being the Advocates & Solicitors Disciplinary Board. On the same element here, the court in that case had held that indeed the Disciplinary Board is a recipient which has an interest and responsibility to receive, investigate and determine complaints against lawyers, thus fulfilling the second element. However in the present case, the Plaintiff’s staff is hardly any person who would have the responsibility or interest to receive such defamatory statement. The staff has no responsibility or interest to receive the grievances of the Defendant such as the interest and responsibility of the Disciplinary Board to receive such grievances against lawyers. Thus, this defence, firstly shall fail on the non- fulfilment of the second element. 22    Third element: Improper motive and/or malice (discussed in tandem with the first element) [38] In casting off any shadow of doubt, notwithstanding the above finding on the second element, this Court shall still delve into the third element of improper motive and/or malice. [39] The Defendant’s submission briefly is that they had the rights to communicate and had not been malicious in transmitting the fax; in that the alleged non-compliance of the Plaintiff gives the Defendant proper right and motive to transmit the defamatory fax. On the contrary, the Plaintiff’s submission was that there was never such non-compliance on their behalf and that the Defendant had transmitted the fax recklessly and therefore, in malice. The Plaintiff had relied on the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ which had held: “…Clearly to our mind, there was malice on the part of the defendants to be inferred as they had, in the circumstances of this case, deliberately stopped short in their inquiries in order not to ascertain the truth. Knowing very well the dire consequences that could befall the plaintiff as a result of the published news item regarding the plaintiffs tweets, the defendants had nonetheless proceeded to air the news to the wide spectrum of national TV audience without first verifying with the plaintiff. [48] As such, it is not difficult to see the reckless conduct of the defendants in publishing the defamatory statements in the circumstances. Such conduct has clearly evinced the presence of malice on the part of the defendants in publishing the 23    defamatory statements against the plaintiff. As such the defendants could not avail themselves of the defence of qualified privilege in this case” (emphasis added) [40] This Court shall address these alleged non-compliances individually. a. Simultaneous Provision of term (iv) for a Covered Car Park [41] It is to this Court’s attention that there is little submission and/or evidence by the Defendant in raising this point of non-compliance. A close scrutiny of the Defendant’s own Witness Statement would unravel very little reference to any correspondences prior and subsequent to the execution of the Settlement Agreement dated 10.5.2012. Furthermore, this Court is in agreement with the Plaintiff that the Defendant had failed to justify their claim for the covered car park. A plain reading of the Notes of Evidence shows that the Defendant merely and broadly refers to “documentation” and not to any specific documents adduced into the Court. [42] Adding to that effect, this Court is in agreement that the Settlement Agreement had never mentioned of any covered car park. As submitted by the Plaintiff, the term employed, agreed and executed in the Settlement Agreement was only for “JD1 is to provide a car park in respect of the Property”. There was never any mention of a covered car park. [43] Now on this point, this Court is guided by the decision of the Court of Appeal in the case of Capping Corp Ltd & Ors v Aquawalk Sdn 24    Bhd & Ors [2013] 6 MLJ 579 which had dealt with the interpretation of Settlement Agreements: “[18] With respect to the learned judge, we agree with the submission of the appellants that he had misconstrued the two settlement agreements and settlement memorandum (collectively referred to as the three settlement agreements) and our reasons are these. [19] The basic legal principle of interpretation of any written document is as stated by the Supreme Court of India in Central Bank of India v Hartford Fire Insurance Co Ltd AIR 1965 SC 1288 and it is this: Now it is commonplace that it is the court’s duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however much it may dislike the result.” (emphasis added) [44] Applying the above excerpt to the present case, the words used in the Settlement Agreement are vividly clear. There are no ambiguities in the words of the terms of agreement. Thus, this Court cannot decide against the meaning intended from the plain words of the Settlement Agreement. And therefore, the Defendant’s contention on this issue shall fail and herein, the Defendant was not justified in transmitting the defamatory fax based on the alleged claim for a covered car park. [45] This Court is minded that the Defendant had submitted that the meaning ascribed to “car park” had all along been understood by the 25    parties, particularly the Plaintiff, was covered car park. Nonetheless, the Defendant had never substantiated such assertion in their evidence or submission. [46] But to remove any doubts, it is also this Court’s finding that even the Defendant himself had never intended “car park” to mean covered car park leading up to the execution of the Settlement Agreement. This Court had examined the numerous correspondences between the parties and shall reproduce those relevant correspondences in justifying this finding. Firstly, prior to the execution of the Settlement Agreement, the Defendant had sent a letter dated 27.1.2012 to the Plaintiff in the course of negotiating the terms of settlement. The Defendant wrote: “If the Developer does not intend to purchase the unit then he has to comply with the following as per Offer Letter/Sales and Purchase Agreement: … b) To provide a reasonable placed covered car park” [47] This Court acknowledges that the Defendant did forward this term for a covered car park. However, this Court also acknowledges that in a subsequent letter to the Plaintiff, the Defendant himself had deleted and omitted the word “covered”. This is evident in the Defendant’s letter to the Plaintiff dated 29.1.2012 in which the Defendant himself had stated his terms of settlement in the following sentence: “5) Developer to provide a reasonably placed car park” (emphasis added) 26    [48] It is evidently clear here, that even the Defendant himself had meant to claim only for a car park and not a covered car park. He himself omitted the word “covered”. This Court can only draw an irresistible inference that the Defendant himself had not anymore meant to claim for a covered car park. [49] What had been included in the Settlement Agreement is actually a direct reflection of the Defendant’s own intent and the Plaintiff had done no such alleged non-compliance in drawing up the Settlement Agreement. [50] Notwithstanding the above, it has to be minded that the Defendant also has all the opportunity to raise such concern (if any) over the covered car park. However, the Defendant had done nothing to that effect and had instead signed and executed the Settlement Agreement without any complaints. [51] Furthermore, it was agreed by the parties, inclusive of the Defendant himself, that any prior representations or statements, be it oral or written shall be replaced by the Settlement Agreement. The operation of the Settlement Agreement and its terms overrides any prior documents, correspondences and communications. This is evident in clause 4.4 as agreed between the parties in the Settlement Agreement reproduced here: “4.4 This Settlement Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. This Settlement Agreement replaces any 27    representations or statements, oral or written, made about the subject matter of this Settlement Agreement. This Settlement Agreement may be amended only by a written agreement signed by both parties…“ (emphasis added) [52] Thus, the Defendant cannot now refer to previous documentations, if any (which this Court denies) to contradict the clear words of the Settlement Agreement Court’s finding on this issue [53] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non- compliance over the term for a car park in the Settlement Agreement. Thus, firstly on this issue, the Defendant had published the defamatory fax in utter recklessness. b. Simultaneous compliance of terms (ii) and (iii) [54] As to the remaining terms (ii) and (iii) the Defendant’s contention of non-compliance is simply that, as per Q&A 8 of the Defendant’s Witness Statement, these terms had not been complied with simultaneously. And stemming from this alleged non-compliance, the Defendant had refused to sign the Supplementary Agreement which occasioned the further delay of the performance of the Settlement Agreement. 28    [55] However, this Court shall stress that this assertion for “simultaneous” compliance had not been referred to any particular document. Even in the Defendant’s Witness Statement, the only reference made to such non-compliance is merely on a letter, subsequent to the execution of the Settlement Agreement dated 3.8.2012 from the Defendant to the Plaintiff reminding the Plaintiff about the alleged non-compliance. No document was ever referred to as to prior negotiations or correspondences to prove that this supposed term for simultaneous compliance had ever been intended to be included between the parties. This Court altogether cannot draw such intention as it is void of any basis. [56] Notwithstanding the absence of any document to infer such intention, it further adds to the detriment of the Defendant’s contention that the Settlement Agreement had not at all mentioned of this supposed simultaneous compliance. This Court is in agreement with the Plaintiff that the operation and compliance of the Settlement Agreement had been agreed to and encapsulated in Clauses 4.3 and 4.4 of the Settlement Agreement. For the sake of convenience, the aforementioned clauses are reproduced here: “4.3 The parties recognize that it is impracticable to make provision for every contingency which may arise in the course of performance of the provisions hereof and accordingly declare their intention that this Settlement Agreement shall operate between them with fairness and without detriment to the interest of any party and that each party shall use its best endeavours to ensure that full effect is given on the terms of this Settlement Agreement in the spirit which it was agreed. 29    4.4 This Settlement Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. This Settlement Agreement replaces any representations or statements, oral or written, made about the subject matter of this Settlement Agreement. This Settlement Agreement may be amended only by a written agreement signed by both parties…“ (emphasis added) [57] It is ultimately clear that there was never even the slightest iteration of a supposed “simultaneous” compliance over the terms of settlement. Further to that effect, as had been found earlier above that the words of the supplementary agreement carries no ambiguities, this Court shall only interpret the Settlement Agreement in the ordinary meaning of the words employed. (see Capping Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579). Thus, it is clear from the clauses above that there was no stipulation for a simultaneous settlement as alleged by the Defendant. Therefore it is this Court’s finding that there is no requirement for the Plaintiff to ensure compliance of the Settlement Agreement simultaneously. [58] The Plaintiff also raised the issue that even in the understanding of the Defendant over the Settlement Agreement, it was already impossible for the Settlement Agreement to be settled simultaneously. The Plaintiff referred to the Defendant’s letter to the Plaintiff dated 29.10.2012 which reads: “As signing of the Supplemental Agreement is acknowledgment of receipt of house keys and possession of the new unit (7A-6) please arrange for a joint inspection of the unit before I attend to the signing of the Supplemental Agreement.” (emphasis added) 30    [59] Based on this statement, even the Defendant admits that the inspection of the new unit must precede the signing of the Supplemental Agreement. In the Defendant’s own understanding, the keys must be handed over first, during inspection, before the Supplementary Agreement for swapping the unit could be signed. It beckons the inference that even the Defendant himself understood that terms (ii) and (iii) were never meant to be complied with simultaneously. Court’s finding on this issue [60] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non- compliance over the terms (ii) and (iii) as alleged. Thus, also on this issue, the Defendant had published the defamatory fax in utter recklessness. Was the Supplementary Agreement an evidence of non-compliance? [61] The Court is minded that it was the Defendant’s assertion that the Supplementary Agreement was drawn up by the Plaintiff after realizing his “mistake” so to speak for not following over the items (ii), (iii) and (iv). However this Court cannot agree to this contention. Instead, this Court is in agreement with the Plaintiff’s contention that the Supplementary Agreement was drawn in pursuance of compliance of the Settlement Agreement. As per the Plaintiff’s letter 31    dated 13.8.2012 to the Defendant, it was made clear to the attention of the Defendant that the Supplementary Agreement is purposed to facilitate the swapping of the property for the new unit. This, to this Court’s considered view, is in conformity with the agreed terms of the Settlement Agreement, particularly clauses 1.1 (d) and (e) of the Settlement Agreement which reads: “d) JD1 to deliver the keys to the Property e) JD1 is to provide to the JC a legal document confirming the swapping of the units” (emphasis added) [62] Thus, there is no basis for the Defendant to contend that the Supplementary Agreement was a measure taken upon realizing of a supposed mistake, as there was no mistake or non-compliance to begin with. It is not within the scope of the Settlement Agreement (as found earlier) that the terms should be complied with simultaneously. [63] And to cast away any shadow of doubts, it is apparent from the evidences that the Plaintiff had indeed complied with the clauses above. It is evidenced by the Plaintiff’s courier dated 4.12.2012 in which the Defendant had acknowledged receipt on 1.1.2013 and also vide the Defendant’s letter dated 1.1.2013 in receiving the keys to the property and four (4) copies of the Supplemental Agreement. 32    Court’s finding on this issue [64] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non- compliance in the making of the Supplemental Agreement. Thus, similarly on this issue, the Defendant had published the defamatory fax in utter recklessness. Was there a delay occasioned by the Plaintiff causing non- compliance? [65] The Defendant contended that the Plaintiff’s failure to ensure simultaneous non-compliance had also caused further delay of the performance of the Settlement Agreement and had occasioned losses against himself. However, based on the myriads of correspondences adduced in the CBOD, the Defendant’s assertion holds untrue. This Court summarizes the following correspondences from the CBOD: Plaintiff’s letter dated 28.6.2012 As early as June 2012, the defendant had urged MH realty to strictly comply with the remainder of the terms unsettled. MH Realty’s letter dated 9.8.2012 MH Realty had only sent the draft Supplemental Agreement vide this letter on this date. Plaintiff’s letter dated 13.8.2012 33    The Plaintiff through this letter had already enclosed the draft Supplemental Agreement to the Defendant for their perusal and comments. Plaintiff’s email to MH’s Solicitors dated 16.8.2012 The Plaintiff through this email had queried on the status of the car park and keys. MH’s Realty’s email to the Plaintiff dated 27.8.2012 MH Realty enclosed an amended draft Supplemental Agreement. Plaintiff’s email to MH’s Solicitors dated 30.8.2012 The Plaintiff replied with respect of comments over the amended draft Supplemental Agreement. Plaintiff’s letters to MH’s Solicitors dated 5.9.2012, 13.9.2012, 20.9.2012, 27.9.2012, 3.10.2012 In all of these letters, the Plaintiff had consistently followed up for the finalization of the Supplemental Agreement. MH’s Letter to the Plaintiff dated 3.10.2012 MH agreed to the Plaintiff’s draft Supplemental Agreement and request for execution of the Supplemental Agreement. Defendant’s letter to the Plaintiff dated 29.10.2012 Only at this point in time the Defendant finally agreed to the Supplemental Agreement and issued further mandate to the Plaintiff over the Supplemental Agreement. [66] Subsequent to these exchanges of correspondences, the Defendant had remained to refuse to execute the Supplemental Agreement on the alleged ground that there was no simultaneous compliance of the Settlement Agreement. 34    [67] Unto this, this Court reiterates that firstly, as found earlier above, there is no such requirement for simultaneous compliance of the Settlement Agreement. [68] Secondly, as there was no requirement of simultaneous compliance from the signing of the Settlement Agreement, thus, there was never any delay as alleged by the Defendant. [69] Thirdly, by closely scrutinizing the correspondences above, all the while until the Defendant agreed to the Supplemental Agreement on 29.10.2012, the Plaintiff had been diligent in pursuing the compliance of the Settlement Agreement against MH. Furthermore, it is clear that the parties were negotiating the terms of the Supplemental Agreement all through this time. [70] Fourthly, the refusal of the Defendant to sign the Supplemental Agreement is on his own wrongful volition of his false accusation simultaneous of non-compliance against the Plaintiff. Any subsequent delay of terms (ii) and (iii) is actually on the fault of the Defendant himself. Court’s finding on this issue [71] Thus, the Defendant cannot allege any delay against the Plaintiff to justify any privilege to transmit the defamatory fax against the Plaintiff. Thereto, the Plaintiff had not failed in ensuring compliance under this ground. 35    Diligence in handling the garnishee proceeding [72] Now, it was contended by the Defendant that the Plaintiff had withdrawn the garnishee proceedings against PBB in the face of non- compliance of the remaining terms (ii), (iii) and (iv) above. And by this conduct, the Defendant seeks to justify their publication of the defamatory fax; in that there was no malice. [73] However, this Court disagrees with the Defendant simply for the reason that had the garnishee proceedings was not withdrawn, it will render the Settlement Agreement to be more difficult to be performed. In fact, MH Realty won’t even be able to comply with the settlement sum in term (i). All in all, there was never any non-compliance to begin with (as found earlier above). Court’s finding on this issue [74] Thus, the Court finds that the Plaintiff had been diligent in his duties as a solicitor in handling not only the garnishee proceedings but the matter in general. Court’s findings on the third element of qualified privilege (in tandem with the first element) [75] Herein, in light of the above findings, this Court finds that on the first element (being the rights and interest to communicate to the defamatory fax to the Plaintiff’s staff) the Defendant had failed to 36    prove their rights and interest as from the outset, there was never any non-compliance of the Settlement Agreement to be held against the Plaintiff. [76] Subsequently on the third element (on improper motive or malice), this Court finds that as the Defendant’s allegation of non-compliance of all the terms, inclusive of terms (ii), (iii) and (iv) are all untrue, as well as void of any basis, the Plaintiff had successfully proven that the Defendant had conducted himself recklessly and in malice when the Defendant transmitted the defamatory fax to the Plaintiff’s staff when the Defendant had known or ought to have known that the allegations were false and untrue. [77] In the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ, the Court of Appeal had held that there was malice simply for the act of failure of verification in search for the truth. The Court further adds that such act was a reckless conduct. In the present case, the Defendant had known or at least ought to have known that their allegations were false or untrue. The Defendant’s conduct in the present case is far more reckless and malicious than the decided case above. Court’s finding on the Defendant’s defence of qualified privilege [78] Bearing in mind that the Defendant had failed to satisfy all three elements requisite to prove their defence of qualified privilege, this 37    Court finds that the Defendant cannot hide under the guise of such defence and be afforded the defence of qualified privilege. Defence of Fair Comment [79] The Defendant in their pleadings and submission had contended on the defence of Fair Comment and had placed reliance on Section 9 of the Defamation Act 1957. However, again the Defendant had little submitted in his written submission in arguing this defence. Again, it hinges upon the justification that his defamatory fax was transmitted as a fair comment against the alleged fact that the Plaintiff had failed to ensure simultaneous compliance of the terms of the Settlement Agreement. The law on Fair Comment Section 9 of the Defamation Act reads: “9. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.” (emphasis added) [80] The recent Court of Appeal decision in the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 had held the following with regards to the defence of fair comment at paras 50 – 51: 38    [50] The law on the defence of fair comment is that if a defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment. The courts have said that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment. [51] The comment must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for the defendant to prove that the underlying facts are true. If he or she is unable to do so, then the defence will fail… (emphasis added) [81] Close perusal of the Defendant’s Written Submission reveals very little argument on the elements need to be proven in establishing this defence of fair comment. It is entirely unclear in what manner does the Defendant asserts that the defamatory fax was not a statement of fact and was a matter of public interest. This Court cannot on its own volition attempt to make a case for any of the parties. It had not been argued by the Defendant on which part of the statements were mere opinion and not a statement of fact. [82] This Court nonetheless, finds valuable assistance in the above decision of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 whereby the Court in this case had dealt with both the defences of qualified privilege and fair comment in tandem: 39    “… Suffice for us to say that as a matter of law, the defence of fair comment, like one of qualified privilege, depends on the fact that when it was made, it was made without malice. It is for the plaintiff to prove that the impugned statement was made with malice aforethought. [53] In this case, on the same reasons as above, pertaining to our findings on the defence of qualified privilege, the defendants, with respect, cannot succeed on the defence of fair comment because there was malice that can be readily inferred from the surrounding circumstances as found in the evidence pertaining to the publication of the defamatory statements against the plaintiff. With respect, we agree with learned counsel for the plaintiff on that score.” (emphasis added) [83] The decision above had succinctly set the stance of the law regarding the defence of fair comment; in that, (similar to the defence of qualified privilege) the defence of fair comment also depends on the element of malice. [84] Thus, as had been founded earlier on the defence of qualified privilege, the Plaintiff had successfully proven that the Defendant had transmitted the defamatory fax in malice, in improper motive and reckless as their allegations of non-compliance of the Settlement Agreement were false and untrue. [85] Furthermore, even if the libellous statement of the Defendant was merely an expression of an opinion (which was not proven by the Defendant), such opinion was expressed based on false unproven facts. Thus, notwithstanding the libellous statement was an expression of an opinion (which was not proven by the Defendant), the Defendant cannot invoke the defence of fair comment. 40    Court’s finding on the Defendant’s defence of Fair Comment. [86] Thus, in cognizance of the above finding that the Defendant had transmitted the libellous fax recklessly knowing or ought to have known that it was based on false allegations, the Defendant had failed to prove their defence of Fair Comment. Conclusion [87] Based on the above mentioned findings, the Defendant is therefore liable for the tort of defamation in respect of the impugned statements. Assessment of Damages General Damages [88] For the purpose of determining the appropriate amount of damages to be awarded to the Plaintiff, this Court is guided by many decided cases on considerations ought to be taken into account in assessing damages. (See: i. MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 AMR 1776, the Federal Court set out the factors to be considered in assessing damages in a defamation case, namely; (1) the position and standing of the plaintiff; (2) the extent of the publication; (3) the mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel; (4) the uncertainty undergone in litigation; (5) conduct 41    of the Defendants from the time of the libel down to the very moment of the verdict; (6) the absence or refusal of any correction, retraction or apology. ii. Datuk Harris Salleh v Abdul Jalil Bin Ahmad [1984] 1 MLJ 7 iii. Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan bin Hamzah [1995] 1 MLJ 39 iv. Cassell & Co v Broome [1972] AC 1027). [89] In the present case, the Plaintiff is an advocate and solicitor who has been in active practice for 23 years. The statements contained in the two letters have obviously injured the Plaintiff’s reputation as a senior advocate and solicitor However, this court is also minded that the publication of the said statements were within the confine of the Plaintiff’s office. (See: AJA Peter v OG Nio & Ors [1980] 1 MLJ 226) The Court further considers that client alike the Defendant must be reminded that they could not and should not take out their frustration on his lawyer in this manner, despite knowing that his solicitor had carried out the necessary action in the due process of litigation or legal proceedings. One must not write to injure one’s reputation, more so of lawyers whose livelihood hinges upon their reputation. Having considered all these factors, this court opines RM50,000.00 general damages as an appropriate amount to be awarded to the Plaintiff. Exemplary Damages [90] The Plaintiff further asked this court to consider awarding him exemplary damages. It must be borne in mind that the objective of 42    exemplary damages is to punish the Defendant where the Defendant’s wilful act were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. [91] The principle relating to exemplary damages in tort has been expounded in the case of Rookes v Barnard [1964] AC 1129. Lord Devlin in Rookes v Barnard sets out the three categories where exemplary award are appropriate. They are: (i) when power to do so is given by statute: (ii) oppressive, arbitrary or unconstitutional conduct by government servants; and (iii) conduct calculated to result in profit. The principle expounded by Lord Devlin in Rookes v Barnard has been followed by the Courts in Malaysia. [92] In so far as this case is concerned none of these three mentioned categories are applicable. Punitive Damages [93] It is this Court’s view an award of RM10,000.00 is appropriate. [94] This Court further orders, order in terms of – prayer 65 (b), (c) of the statement of claim. Interest at the rate of 5% per anum on the judgment sum from date of filing of writ until full realisation of the judgment sum. 43    As to the issue of costs [95] Having heard brief submissions from both counsels for the Plaintiff and the Defendant, this Court hereby orders the Defendant to pay the Plaintiff RM20,000.00 in costs. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court NCVC 13 of Shah Alam Selangor Darul Ehsan Dated the 14th day of November, 2014. For the Plaintiff - Tetuan Muru & Partners Mr. Murugayah For the Defendant - Tetuan Rathi MG Associates Ms. Rathimalar

Tika 2.6.0

23NCVC-17-04/2013

PLAINTIF SANDOSH A/L JN ANANDAN DEFENDAN SIVAJANAM A/L SANGARAPILLAI

14/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0cd2a7e8-e217-43c5-801f-b5e8974f7497&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 23NCVC-17-04/2013 BETWEEN SANDOSH A/L JN ANANDAN .... PLAINTIFF AND SIVAJANAM A/L SANGARAPILLAI .... DEFENDANT GROUNDS OF JUDGMENT (After Full trial) [1] The Plaintiff (Sandosh s/o JN Anandan) is a practicing lawyer who runs his own sole proprietor practice under the name Tetuan Sandosh Anandan. [2] The Defendant (Sivajanam s/o Sangarapillai) is an individual residing at No. 3, Jalan Mohd Tahir 20, Taman Sri Klang, 41200, Klang Selangor Darul Ehsan and was formerly the client of the Plaintiff. [3] The Plaintiff in this case had commenced this civil action against the Defendant claiming for damages in the form of general, exemplary and punitive, for tort of defamation in respect of two letters dated 12.2.2013 and 15.3.2013 written by the Defendant to the Plaintiff in the course of their solicitor and client relationship. [4] The Defendant had sent the letter dated 12/2/2013 via fax on 13/2/2013 and the Plaintiff had received it on 14/2/2013. While the letter dated 15/3/2013 was also sent via fax by the Defendant on 15/3/2013 and was received by the Plaintiff on 19/3/2013. The factual background giving rise to the defamation action by the Plaintiff is as follows: [5] The Defendant’s daughter by the name of Kavita had on 9.5.1994 purchased a condominium unit known as No. 15A-5-Block A, Type B d’Haven (No. 15A-5 unit) from a developer, MH Resort Sdn. Bhd. (MH Resort) at a purchase price of RM221,880.00. [6] Later, both Kavita and MH Resort had agreed to substitute the No. 15A-5 unit to a new unit known as No. 7A-6 (the said property) for the price of RM222,880.00. [7] Thereafter vacant possession of the said property was delivered to Kavita on 15.11.1997. Despite the vacant possession of the said property was delivered to Kavita in 1997 she could not move in into the said property immediately as the Certificate of Fitness of the said property was not obtained by MH Resort. The Certificate of Fitness was only obtained in 2006. [8] Due to the delay on the part of MH Resort to obtain the Certificate of Fitness of the said property, Kavita claimed that she is deprived of obtaining benefits from the said property in terms of its occupation or rentals. [9] On 13.12.1999, Kavita had executed a Power Of Attorney in favour of the Defendant empowering the Defendant to act on her behalf in respect of the said property. [10] The Defendant thereafter had engaged Messrs. Rajadevan & Associate to initiate a civil action against MH Resort in the Shah Alam High Court. [11] On 29.7.2009, a judgment was entered in favour of the Defendant and among the order obtained by the Defendant against MH Resort was that MH Resort pay the damages for the losses sustained by Kavita for being unable to rent out the property from December 1999 until the Certificate of Fitness is obtained. The damages is to be assessed by the Senior Assistant Registrar (SAR). [12] Before the assessment of damages is carried out by the SAR, the Plaintiff was engaged by the Defendant to take over the conduct of the matter in place of Messrs. Rajadevan & Associates. [13] Upon his appointment as solicitor for the Defendant, the Plaintiff had proceeded to render his services and represented the Defendant for the following proceedings: (a) Assessment of damages Shah Alam High Court Originating Summons no. MT4 (MT3)-24-640-2006; b) Appeal against the judgment dated 25/8/2010 of Shah Alam High Court; c) Notice pursuant to section 218 of the Companies Act 1965, Shah Alam High Court originating summons No. MT4 (MT3)-24-640-2006; d) Garnishee Proceedings vide originating summons of No. MT4 (MT3)-24-640-2006; e) Intervenor: D’Haven Condominium Management Shah Alam High Court “SAHC” Originating Summons No. MT4 (MT3)-24-640-2006; f) Settlement Agreement dated 10/05/2012. [14] After settlement of the Defendant’s matter, the Plaintiff thereafter had issued a bill for the legal fees/charges incurred for rendering his professional services to the Defendant. [15] In response to the bill, the Defendant had disputed the bill and also questioned the credibility of the Plaintiff as a solicitor. Hence, it has trigged exchange of communications between the Plaintiff and Defendant which has led to the two letters sent to the Plaintiff by the Defendant. [16] The Plaintiff had contended that the statements contained in the two letters had maliciously defamed him. The two letters are reproduced here: (i) Letter dated 12.2.2013: “No. 3, Jalan Mohd Tahir 20 Taman Sri Klang Jalan Raja Nong 41200 Klang 12th February 2013 M/s Sandosh Anandan Advocates & Solicitors Unit A502, Block A Kelana Jaya 47301 Petaling Jaya Attention : Mr. Sandosh Anandan Dear Sirs, Re: (i) Shah Alam High Court Originating Summons No. MT4 (MT3)-24-640-2006 Inspection of Unit 7A-6, d’Haven Condominium Klang (ii) Klang Sessions Court Summons No. 52-2143-05 Your letter dated 2nd January 2013 on the above matter refers. As directed by your goodself, I did meet with the Developer on the defects noted in the unit. He (Mr. Loo) has refused to attend to the said defects. One of the terms of the Settlement Agreement is that the unit is habitable/tenantable and complies with the Fourth Schedule of the Sale and Purchase Agreement dated 9th May 1994. To liaise with the Developer’s Solicitors on the defects by you is only ancillary assignment on one of the conditions in the Settlement Agreement which rightly should have been finalized before the stamping of the said Settlement Agreement. At the material time of preparation of the Settlement Agreement, I did bring to your attention about the simultaneous availability of a habitable/ tenantable unit and a reasonably placed car park. Your reply was not to place the cart before the horse. Please note that the car park allocated could be described as God’s forsaken place, the last lot at a dead and (difficult to go in and more difficult to come out). Is this what an early purchaser like me gets? You too in a correspondence dated 3rd September 2012 had stated that the status of the unit is a non-issue as it has to comply with the Sale and Purchase Agreement which is currently inclusive of the Supplemental Agreement and that has to be met. The issue of a habitable unit has been raised since early 2012 and is mentioned in your letter dated 1st March 2012 to M/s Kamal Hashim Pury & Lim. This has not been dispute by them either. At the material time of me signing the Settlement Agreement, you did not mention that this document would not attract any fees and yet currently rectify an anomaly, committed in your over enthusiasm to push through the Settlement Agreement with total disregard to whether the other three terms in the Settlement Agreement were in a position to be simultaneously implemented had misled your thoughts that money settles all issues, has been shown to be wrong and yet you ironically demand payment up front to cover your short comings. If only the Settlement Agreement had been diligently executed matters would not have reached this stage. Currently the Settlement Agreement has become an antiquated document. Who is responsible for this Legal Flaw? Why should I be burdened with these legal costs? As to the quantum of legal fees due, this issue will be settled at an appropriate platform. As to your suggestion, I Am agreeable to appoint another lawyer to takeover and proceed with the matter at hand. Please confirm that you are agreeable to handover to the new lawyer all original court papers, documents and all monies held by you currently. Thank you. Yours faithfully, t.t (S. Sivagnanam PPN. PJK)” (ii) Letter dated 15.3.2013: “No. 3, Jalan Mohd Tahir 20 Taman Sri Klang Jalan Raja Nong 41200 Klang 15th March 2013 M/s Sandosh Anandan Advocates & Solicitors Unit A502, Block A Kelana Square No. 17, Jalan SS 7/26 Kelana Jaya 47301 Petaling Jaya Attention : Mr. Sandosh Anandan Dear Sirs, Re : (i) Shah Alam High Court Originating Summons No. MT4 (MT3)-24-640-2006 Unit 7A-6, d’Haven Condo, Klang, Repair yet to be undertaken. (ii) Klang Session Court Summons No. 52-2143-05 _______________________________________________________ Your letter dated 1st March under the above caption refers. As the writer of letter dated 12th February 2013, I wish to state that I have no reason to insult or to make any unnecessary inference. What I wrote is as I see the delayed implementation of the Shah Alam High Court Decision. For example, the Settlement Agreement was documented on 10th May 2012. One of the terms – a habitable/tenantable unit is still pending and 10 months have passed with no end in sight. Since the time of Michael Nathan’s case in October 2005 to current, all my correspondence to your office has been by ordinary email. Of late, for fast delivery, I am able to use my friend’s office fax machine for the remittance of my correspondence. As to your past suggestion I am agreeable to appoint another lawyer to takeover and proceed with the matter at hand. I had also mentioned this is my letter of 12th February 2013. Please confirm that you are agreeable to handover to the new lawyer all original court papers, documents and monies less fees held by you currently. However monies withheld in excess of what is due to you, my opinion, will be contested. Please give the chance of lawyer matter your immediate attention. Thank you. Yours faithfully, t.t. (S. Sivagnanam PPN. PJK)” Plaintiff’s case [17] It is the Plaintiff’s case that the statements in the letters dated 12/2/2013 and 15/3/2013 are defamatory in nature and/ or libel against the Plaintiff, whereby the original and natural meaning of the statements is understood to be, among others that:- a) The Plaintiff is an Advocate & Solicitor who has no potential, b) The Plaintiff is a person who is without professional ethics, c) The Plaintiff is a person who is not trustworthy, d) The Plaintiff is a liar, e) The Plaintiff is not a responsible person; f) The Plaintiff is a person who is not competent; g) The Plaintiff is a person who is incapable or inefficient in his work as a solicitor; h) The Plaintiff is a person who cannot be trusted in fulfilling his responsibilities in respect of his client’s work. [18] The Plaintiff in his statement of claim had also pleaded that by way of insulting innuendos contained in the Defendant’s letter dated 12/2/2013 & 15/2/2013 which are defamatory and/ or libel towards the Plaintiff and is taken to mean and understood in other words to mean that: a) The Plaintiff is a person who is greedy; b) The Plaintiff has committed a fraudulent act towards the Defendant; c) The Plaintiff has conspired with the MH Resort & MH Realty; d) The Plaintiff is incapable of resolving the Defendant’s case; e) The Plaintiff has waived Kavita’s and/or the Defendant’s rights; f) The Plaintiff has no integrity; [19] Arising from alleged malicious and libellous statements contained in both the letters, the Plaintiff claims he had sustained distress, difficulty, pain and suffering and humiliation. Defendant’s case [20] The Defendant has disputed the Plaintiff’s claim and defended his actions by contending that the statements in the impugned letters were not meant to defame the Plaintiff. The Defendant contends inter alia: a) The letters are not defamatory b) There was no publication of the letters. c) The said letters were addressed to the Plaintiff and were not published to any third party. d) The statements does not refer to the Plaintiff as the two letters were sent to the Plaintiff reasonably and in the normal course of business. e) The Defendant sent the said letters to the Plaintiff in the same manner as in the past that is by fax. f) The Plaintiff did not direct the Defendant not to send letters through fax and the Plaintiff’s fax number is in the Plaintiff’s office. [21] In justifying his action, the Defendant contended that the impugned letters were sent to the Plaintiff as a result of the Plaintiff’s failure to take the necessary and appropriate action in the course of his conduct as solicitor for the Defendant in respect of the said property. Hence, it was the contention of the Defendant that even if the statements contained in the impugned letters are defamatory in nature and there was publication of the malicious statements, it was the duty and the legal and social obligation of the Defendant. And therefore the defence of qualified privilege is available to the Defendant. The Defendant also pleaded the defence of fair comment under section 9 of the Defamation Act 1957. The Law [22] It is trite law that for the Plaintiff to succeed in his defamation suit against the Defendant, the Defendant must prove three elements namely: (i) that the statements in both the letters must carry defamatory ascription. (ii) the defamatory statements must refer to him. (iii) the defamatory statements must be published to a third party (publication) (See i. Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315. ii. Kian Lup Construction v. Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32 @ 41. iii. Ismail Shamsudin v. Abdul Aziz Abdan [2007] 8 CLJ 65 @ 68-69). [23] Now the issues to be determined here is, firstly, whether the statements contained in the letters are defamatory. Secondly, whether the statements referred to the Plaintiff. Thirdly, whether there was publication of the statements to the third party and fourthly, whether the defence of qualified privilege and/ or fair comment under section 9 of the Defamation Act 1957applicable to the Defendant. First issue - Whether the statements are defamatory [24] Clearly, upon reading of the impugned statements, this Court is of the considered view that these statements are defamatory in nature. The statements when it is read and understood in their natural and ordinary meaning (a meaning in which reasonable man of ordinary intelligence would be likely to understand them) gave the meaning and was understood that: a) the Plaintiff was only interested in the Defendant monies, not the duties and professional obligation to the Defendant as his client. b) the Plaintiff has not carried out his duty as a solicitor professionally and thus was incompetent, as the Plaintiff did not attend to items (ii), (iii) and (iv) simultaneously being settled at time of signing of Settlement Agreement by Defendant with the Developer. [25] This Court finds the statements were indeed defamatory and libellous. Second issue - Whether the impugned statements refer to the Plaintiff. [26] The question of the said statements referring to the Plaintiff is patently clear. Both letters were written to the attention of the Plaintiff and was meant for the Plaintiff. Third issue - Whether the impugned statements was published to a third party (whether there is publication) [27] What constitutes publication of a defamatory statement has been explained and illustrated by the Supreme Court in the case of S. Pakianathan v. Jenni Ibrahim & Another case [1988] 1 CLJ Rep: 233 wherein the Supreme Court has held that: “In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the Plaintiff. By publication is meant the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written. The uttering of a libel to the party libeled is no publication for the purposes of a civil action. Wenhak v. Morgan [1880] 20 QBO at page 637. A Plaintiff will not, as a rule, be permitted to wait until after discovery before naming the persons to whom a libel was published: Barham v. Lord Huntingfield [1913] 2 KB 193, CA”. [28] In Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315. Dzaiddin Abdullah J (as his Lordship then was) concluded that there was publication of defamatory words to a third party in the case before his Lordship. In concluding there was sufficient publication to a third person, at page 316 his Lordship said this: “In support of the said averment, the Plaintiff called Miss Ooi Ah Moi (PW2) to testify that at the material time she was employed by the Plaintiff in his firm as a general clerk. Her duties included the opening of files and correspondences received by the firm. When shown exh P5, she stated that she remembered opening it. She read its contents, searched for the connecting file and passed it for the Plaintiff’s attention. Under cross-examination, she stated that she also carried out secretarial duties for the Plaintiff. She received an average of ten letters per day and normally opened these letters and read their contents. The letter P5 together with the file was given to the Plaintiff personally. In addition exh P5 was also sent to Perianayagam, who was the defendant’s agent. Upon these evidence, I am satisfied and I hold that there is sufficient publication to a third person.” [29] Before this court, the counsel for the Plaintiff had submitted that there was publication of the defamatory statements to a third party in the present case as the said letters were sent to the Plaintiff through the facsimile machine. The Plaintiff’s Legal Assistant, Ms Loh Yun Ping (PW2) had testified that the said faxed letters from the Defendant were received by the staff of the Plaintiff to be recorded. She also stated in her evidence that all faxed letters or mails (post or otherwise) received will be taken by the staff. The staff will then record the faxed letters or mails in the incoming mail book and then put them into the folder for review by solicitors and chambering students. It will then be circulated. She further stated that all letters or mails are then sent to the Plaintiff who thereafter proceeded to forward the same to her and finally viewed by the Plaintiff’s staff i.e the clerk in charge of the file by the name of Kalamani Sundaram. The counsel for Plaintiff in his submission had placed great reliance on his Lordship Dzaiddin J’s decision and submitted that the present case falls squarely on Ayob’s case with regard to publication to a third party. [30] This Court is entirely in agreement with the Plaintiff counsel’s submission. The defamatory statements were indeed published to a third party in this case. Fourth issue - whether the defence of qualified privilege, fair comment under section 9 of the Defamation Act 1957 applicable to the Defendant. [27] Now, in light of this Court’s earlier finding that the fax transmitted by the Defendant to the Plaintiff was indeed a libellous conduct, the Court shall delve into the defences pleaded by the defendant. One of which is the defence of qualified privilege. [28] From the outset, it needs to be noted that the Defendant’s Written Submission over his defences are brazenly brief. There was very little reference made to any particular evidence and/or documents to support the Defendant’s contentions on his defences. Defence of Qualified Privilege [29] Nonetheless, it had come to the understanding of the Court, that the fulcrum of the defence of qualified privilege is the Defendant’s contention that it is the right of the Defendant to correspond to the Plaintiff as an interested party as their solicitors with regards to an alleged non-compliance of the Settlement Agreement executed between the Defendant and MH. The particulars of the alleged non-compliance are reproduced as follows: i. The damages of RM 212, 869.54 ii. Documents for the replacement unit iii. Handing over of a habitable unit with one set of keys iv. Covered car park. [30] The term for damages were admitted to have been in compliance and only these three particulars itemised above had been alleged to have not been complied with by the Plaintiff. [31] It was also contended that the four terms above was supposed to have been settled simultaneously. The Law on Qualified Privilege [32] This Court finds assistance from the high court decision of Mohd Zawawi Salleh J in the case of Sivabalan P Asapathy v The New Straits Times Press (M) Bhd [2010] CLJ at page 900, para. 34 in understanding the requisite elements in proving the defence of qualified privilege: “[34] On this point, it is appropriate to refer to the judgment of Lord Carswell in the case of Edward Seaga v. Leslie Harper, Privy Council Appeal No. 90 of 2006, [2008] UKPC 9. There, his Lordship had this to say: 5. The defence of qualified privilege, like so many other doctrines of the common law, developed over a period of time, commencing in the 19th century, and is still in the process of development. The history is conveniently summarized in the judgment of Dunn LJ in Blackshaw v. Lord [1984] QB 1, 33-4, drawing on the argument of Sir Valentine Holmes KC in Pereira v. Peiris [1949] AC 1, 9. By the time of the decision of the Court of Appeal in Purcell v. Sowler [1877] 2 CPD 215 it was assuming its recognisable modern form. It is founded upon the need to permit the making of statements where there is a duty, legal, social or moral, or sufficient interest on the part or the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, so long as they are made without malice, that is to say, honestly and without any indirect of improper motive. It is the occasion on which the statement is made without the privilege, and under the traditional common law doctrine there must be a reciprocity of duty and interest: Adam v. Ward [1917] AC 309, 334, per Lord Atkinson. The development of the law is accurately and conveniently expressed in Duncan and Neill on Defamation, 2nd ed (1983), para 14.04: From the broad general principle that certain communications should be protected by qualified privilege 'in the general interest of society', the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication.” (emphasis added) [33] Now, it had reached to this Court’s understanding that the most pertinent element to be deliberated upon is the existence of malice and/or improper motive. Both parties have contended to this issue regarding malice. The Plaintiff had at length submitted in proving malice in the defendant’s fax while the defendant had submitted (though very briefly) on the correctness of the fax and that there was no improper motive or malice in transmitting the fax. [34] Indeed, as deliberated in case of Ayob Saud v TS Sambanthamurthi [1989] 1 MLJ 315 HC, his Lordship Mohamed Dzaidin J (as he then was) had delved into the issue of malice in the defence of qualified privilege: “Where a defence of qualified privilege is set up, as in the present case, the burden lies on the defendant to prove that he made the statement honestly, and without any indirect or improper motive. Then, if he succeeds in establishing qualified privilege, the burden is shifted to the plaintiff in this case to show actual or express malice which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged…”(emphasis added) [35] The same was echoed in the recent Court of Appeal decision in the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 at para 36: “In the defence of qualified privilege, the underlying exonerating element is that the defamatory statements were made without malice. The law is that it lies on the plaintiff to show that there was malice that had actuated the defendant when he published the impugned statements.” First element: Interest and rights to communicate to the Plaintiff [36] This Court shall first, address the other requisites in proving the defence of qualified privilege. Firstly, the Defendant must prove that they have such rights or interest to express their grievances to the Plaintiff’s staff. This Court would not go as far as to deny that a client’s rights to communicate to his or her lawyers. Nonetheless, the supposed right or interest to communicate the defamatory fax in the present case hinges upon the allegation of non-compliance against the Plaintiff. These non-compliances shall be discussed and decided together with the third element below. Second element: Recipient has interest or duty to receive communication [37] Secondly, it is this Court’s finding that the Plaintiff’s staff, is not a recipient having a corresponding interest or duty to receive such defamatory statements. Unlike in the case of Sanmugam Panmugam Ponnan v Halijah Abbas & Suriyati Hasimah Mohd Hashim [2013] 1 LNS 257, the Court had dealt with a publication of defamatory material unto the third party being the Advocates & Solicitors Disciplinary Board. On the same element here, the court in that case had held that indeed the Disciplinary Board is a recipient which has an interest and responsibility to receive, investigate and determine complaints against lawyers, thus fulfilling the second element. However in the present case, the Plaintiff’s staff is hardly any person who would have the responsibility or interest to receive such defamatory statement. The staff has no responsibility or interest to receive the grievances of the Defendant such as the interest and responsibility of the Disciplinary Board to receive such grievances against lawyers. Thus, this defence, firstly shall fail on the non-fulfilment of the second element. Third element: Improper motive and/or malice (discussed in tandem with the first element) [38] In casting off any shadow of doubt, notwithstanding the above finding on the second element, this Court shall still delve into the third element of improper motive and/or malice. [39] The Defendant’s submission briefly is that they had the rights to communicate and had not been malicious in transmitting the fax; in that the alleged non-compliance of the Plaintiff gives the Defendant proper right and motive to transmit the defamatory fax. On the contrary, the Plaintiff’s submission was that there was never such non-compliance on their behalf and that the Defendant had transmitted the fax recklessly and therefore, in malice. The Plaintiff had relied on the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ which had held: “…Clearly to our mind, there was malice on the part of the defendants to be inferred as they had, in the circumstances of this case, deliberately stopped short in their inquiries in order not to ascertain the truth. Knowing very well the dire consequences that could befall the plaintiff as a result of the published news item regarding the plaintiffs tweets, the defendants had nonetheless proceeded to air the news to the wide spectrum of national TV audience without first verifying with the plaintiff. [48] As such, it is not difficult to see the reckless conduct of the defendants in publishing the defamatory statements in the circumstances. Such conduct has clearly evinced the presence of malice on the part of the defendants in publishing the defamatory statements against the plaintiff. As such the defendants could not avail themselves of the defence of qualified privilege in this case” (emphasis added) [40] This Court shall address these alleged non-compliances individually. a. Simultaneous Provision of term (iv) for a Covered Car Park [41] It is to this Court’s attention that there is little submission and/or evidence by the Defendant in raising this point of non-compliance. A close scrutiny of the Defendant’s own Witness Statement would unravel very little reference to any correspondences prior and subsequent to the execution of the Settlement Agreement dated 10.5.2012. Furthermore, this Court is in agreement with the Plaintiff that the Defendant had failed to justify their claim for the covered car park. A plain reading of the Notes of Evidence shows that the Defendant merely and broadly refers to “documentation” and not to any specific documents adduced into the Court. [42] Adding to that effect, this Court is in agreement that the Settlement Agreement had never mentioned of any covered car park. As submitted by the Plaintiff, the term employed, agreed and executed in the Settlement Agreement was only for “JD1 is to provide a car park in respect of the Property”. There was never any mention of a covered car park. [43] Now on this point, this Court is guided by the decision of the Court of Appeal in the case of Capping Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579 which had dealt with the interpretation of Settlement Agreements: “[18] With respect to the learned judge, we agree with the submission of the appellants that he had misconstrued the two settlement agreements and settlement memorandum (collectively referred to as the three settlement agreements) and our reasons are these. [19] The basic legal principle of interpretation of any written document is as stated by the Supreme Court of India in Central Bank of India v Hartford Fire Insurance Co Ltd AIR 1965 SC 1288 and it is this: Now it is commonplace that it is the court’s duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however much it may dislike the result.” (emphasis added) [44] Applying the above excerpt to the present case, the words used in the Settlement Agreement are vividly clear. There are no ambiguities in the words of the terms of agreement. Thus, this Court cannot decide against the meaning intended from the plain words of the Settlement Agreement. And therefore, the Defendant’s contention on this issue shall fail and herein, the Defendant was not justified in transmitting the defamatory fax based on the alleged claim for a covered car park. [45] This Court is minded that the Defendant had submitted that the meaning ascribed to “car park” had all along been understood by the parties, particularly the Plaintiff, was covered car park. Nonetheless, the Defendant had never substantiated such assertion in their evidence or submission. [46] But to remove any doubts, it is also this Court’s finding that even the Defendant himself had never intended “car park” to mean covered car park leading up to the execution of the Settlement Agreement. This Court had examined the numerous correspondences between the parties and shall reproduce those relevant correspondences in justifying this finding. Firstly, prior to the execution of the Settlement Agreement, the Defendant had sent a letter dated 27.1.2012 to the Plaintiff in the course of negotiating the terms of settlement. The Defendant wrote: “If the Developer does not intend to purchase the unit then he has to comply with the following as per Offer Letter/Sales and Purchase Agreement: … b) To provide a reasonable placed covered car park” [47] This Court acknowledges that the Defendant did forward this term for a covered car park. However, this Court also acknowledges that in a subsequent letter to the Plaintiff, the Defendant himself had deleted and omitted the word “covered”. This is evident in the Defendant’s letter to the Plaintiff dated 29.1.2012 in which the Defendant himself had stated his terms of settlement in the following sentence: “5) Developer to provide a reasonably placed car park” (emphasis added) [48] It is evidently clear here, that even the Defendant himself had meant to claim only for a car park and not a covered car park. He himself omitted the word “covered”. This Court can only draw an irresistible inference that the Defendant himself had not anymore meant to claim for a covered car park. [49] What had been included in the Settlement Agreement is actually a direct reflection of the Defendant’s own intent and the Plaintiff had done no such alleged non-compliance in drawing up the Settlement Agreement. [50] Notwithstanding the above, it has to be minded that the Defendant also has all the opportunity to raise such concern (if any) over the covered car park. However, the Defendant had done nothing to that effect and had instead signed and executed the Settlement Agreement without any complaints. [51] Furthermore, it was agreed by the parties, inclusive of the Defendant himself, that any prior representations or statements, be it oral or written shall be replaced by the Settlement Agreement. The operation of the Settlement Agreement and its terms overrides any prior documents, correspondences and communications. This is evident in clause 4.4 as agreed between the parties in the Settlement Agreement reproduced here: “4.4 This Settlement Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. This Settlement Agreement replaces any representations or statements, oral or written, made about the subject matter of this Settlement Agreement. This Settlement Agreement may be amended only by a written agreement signed by both parties…“ (emphasis added) [52] Thus, the Defendant cannot now refer to previous documentations, if any (which this Court denies) to contradict the clear words of the Settlement Agreement Court’s finding on this issue [53] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non-compliance over the term for a car park in the Settlement Agreement. Thus, firstly on this issue, the Defendant had published the defamatory fax in utter recklessness. b. Simultaneous compliance of terms (ii) and (iii) [54] As to the remaining terms (ii) and (iii) the Defendant’s contention of non-compliance is simply that, as per Q&A 8 of the Defendant’s Witness Statement, these terms had not been complied with simultaneously. And stemming from this alleged non-compliance, the Defendant had refused to sign the Supplementary Agreement which occasioned the further delay of the performance of the Settlement Agreement. [55] However, this Court shall stress that this assertion for “simultaneous” compliance had not been referred to any particular document. Even in the Defendant’s Witness Statement, the only reference made to such non-compliance is merely on a letter, subsequent to the execution of the Settlement Agreement dated 3.8.2012 from the Defendant to the Plaintiff reminding the Plaintiff about the alleged non-compliance. No document was ever referred to as to prior negotiations or correspondences to prove that this supposed term for simultaneous compliance had ever been intended to be included between the parties. This Court altogether cannot draw such intention as it is void of any basis. [56] Notwithstanding the absence of any document to infer such intention, it further adds to the detriment of the Defendant’s contention that the Settlement Agreement had not at all mentioned of this supposed simultaneous compliance. This Court is in agreement with the Plaintiff that the operation and compliance of the Settlement Agreement had been agreed to and encapsulated in Clauses 4.3 and 4.4 of the Settlement Agreement. For the sake of convenience, the aforementioned clauses are reproduced here: “4.3 The parties recognize that it is impracticable to make provision for every contingency which may arise in the course of performance of the provisions hereof and accordingly declare their intention that this Settlement Agreement shall operate between them with fairness and without detriment to the interest of any party and that each party shall use its best endeavours to ensure that full effect is given on the terms of this Settlement Agreement in the spirit which it was agreed. 4.4 This Settlement Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. This Settlement Agreement replaces any representations or statements, oral or written, made about the subject matter of this Settlement Agreement. This Settlement Agreement may be amended only by a written agreement signed by both parties…“ (emphasis added) [57] It is ultimately clear that there was never even the slightest iteration of a supposed “simultaneous” compliance over the terms of settlement. Further to that effect, as had been found earlier above that the words of the supplementary agreement carries no ambiguities, this Court shall only interpret the Settlement Agreement in the ordinary meaning of the words employed. (see Capping Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579). Thus, it is clear from the clauses above that there was no stipulation for a simultaneous settlement as alleged by the Defendant. Therefore it is this Court’s finding that there is no requirement for the Plaintiff to ensure compliance of the Settlement Agreement simultaneously. [58] The Plaintiff also raised the issue that even in the understanding of the Defendant over the Settlement Agreement, it was already impossible for the Settlement Agreement to be settled simultaneously. The Plaintiff referred to the Defendant’s letter to the Plaintiff dated 29.10.2012 which reads: “As signing of the Supplemental Agreement is acknowledgment of receipt of house keys and possession of the new unit (7A-6) please arrange for a joint inspection of the unit before I attend to the signing of the Supplemental Agreement.” (emphasis added) [59] Based on this statement, even the Defendant admits that the inspection of the new unit must precede the signing of the Supplemental Agreement. In the Defendant’s own understanding, the keys must be handed over first, during inspection, before the Supplementary Agreement for swapping the unit could be signed. It beckons the inference that even the Defendant himself understood that terms (ii) and (iii) were never meant to be complied with simultaneously. Court’s finding on this issue [60] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non-compliance over the terms (ii) and (iii) as alleged. Thus, also on this issue, the Defendant had published the defamatory fax in utter recklessness. Was the Supplementary Agreement an evidence of non-compliance? [61] The Court is minded that it was the Defendant’s assertion that the Supplementary Agreement was drawn up by the Plaintiff after realizing his “mistake” so to speak for not following over the items (ii), (iii) and (iv). However this Court cannot agree to this contention. Instead, this Court is in agreement with the Plaintiff’s contention that the Supplementary Agreement was drawn in pursuance of compliance of the Settlement Agreement. As per the Plaintiff’s letter dated 13.8.2012 to the Defendant, it was made clear to the attention of the Defendant that the Supplementary Agreement is purposed to facilitate the swapping of the property for the new unit. This, to this Court’s considered view, is in conformity with the agreed terms of the Settlement Agreement, particularly clauses 1.1 (d) and (e) of the Settlement Agreement which reads: “d) JD1 to deliver the keys to the Property e) JD1 is to provide to the JC a legal document confirming the swapping of the units” (emphasis added) [62] Thus, there is no basis for the Defendant to contend that the Supplementary Agreement was a measure taken upon realizing of a supposed mistake, as there was no mistake or non-compliance to begin with. It is not within the scope of the Settlement Agreement (as found earlier) that the terms should be complied with simultaneously. [63] And to cast away any shadow of doubts, it is apparent from the evidences that the Plaintiff had indeed complied with the clauses above. It is evidenced by the Plaintiff’s courier dated 4.12.2012 in which the Defendant had acknowledged receipt on 1.1.2013 and also vide the Defendant’s letter dated 1.1.2013 in receiving the keys to the property and four (4) copies of the Supplemental Agreement. Court’s finding on this issue [64] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non-compliance in the making of the Supplemental Agreement. Thus, similarly on this issue, the Defendant had published the defamatory fax in utter recklessness. Was there a delay occasioned by the Plaintiff causing non-compliance? [65] The Defendant contended that the Plaintiff’s failure to ensure simultaneous non-compliance had also caused further delay of the performance of the Settlement Agreement and had occasioned losses against himself. However, based on the myriads of correspondences adduced in the CBOD, the Defendant’s assertion holds untrue. This Court summarizes the following correspondences from the CBOD: Plaintiff’s letter dated 28.6.2012 As early as June 2012, the defendant had urged MH realty to strictly comply with the remainder of the terms unsettled. MH Realty’s letter dated 9.8.2012 MH Realty had only sent the draft Supplemental Agreement vide this letter on this date. Plaintiff’s letter dated 13.8.2012 The Plaintiff through this letter had already enclosed the draft Supplemental Agreement to the Defendant for their perusal and comments. Plaintiff’s email to MH’s Solicitors dated 16.8.2012 The Plaintiff through this email had queried on the status of the car park and keys. MH’s Realty’s email to the Plaintiff dated 27.8.2012 MH Realty enclosed an amended draft Supplemental Agreement. Plaintiff’s email to MH’s Solicitors dated 30.8.2012 The Plaintiff replied with respect of comments over the amended draft Supplemental Agreement. Plaintiff’s letters to MH’s Solicitors dated 5.9.2012, 13.9.2012, 20.9.2012, 27.9.2012, 3.10.2012 In all of these letters, the Plaintiff had consistently followed up for the finalization of the Supplemental Agreement. MH’s Letter to the Plaintiff dated 3.10.2012 MH agreed to the Plaintiff’s draft Supplemental Agreement and request for execution of the Supplemental Agreement. Defendant’s letter to the Plaintiff dated 29.10.2012 Only at this point in time the Defendant finally agreed to the Supplemental Agreement and issued further mandate to the Plaintiff over the Supplemental Agreement. [66] Subsequent to these exchanges of correspondences, the Defendant had remained to refuse to execute the Supplemental Agreement on the alleged ground that there was no simultaneous compliance of the Settlement Agreement. [67] Unto this, this Court reiterates that firstly, as found earlier above, there is no such requirement for simultaneous compliance of the Settlement Agreement. [68] Secondly, as there was no requirement of simultaneous compliance from the signing of the Settlement Agreement, thus, there was never any delay as alleged by the Defendant. [69] Thirdly, by closely scrutinizing the correspondences above, all the while until the Defendant agreed to the Supplemental Agreement on 29.10.2012, the Plaintiff had been diligent in pursuing the compliance of the Settlement Agreement against MH. Furthermore, it is clear that the parties were negotiating the terms of the Supplemental Agreement all through this time. [70] Fourthly, the refusal of the Defendant to sign the Supplemental Agreement is on his own wrongful volition of his false accusation simultaneous of non-compliance against the Plaintiff. Any subsequent delay of terms (ii) and (iii) is actually on the fault of the Defendant himself. Court’s finding on this issue [71] Thus, the Defendant cannot allege any delay against the Plaintiff to justify any privilege to transmit the defamatory fax against the Plaintiff. Thereto, the Plaintiff had not failed in ensuring compliance under this ground. Diligence in handling the garnishee proceeding [72] Now, it was contended by the Defendant that the Plaintiff had withdrawn the garnishee proceedings against PBB in the face of non-compliance of the remaining terms (ii), (iii) and (iv) above. And by this conduct, the Defendant seeks to justify their publication of the defamatory fax; in that there was no malice. [73] However, this Court disagrees with the Defendant simply for the reason that had the garnishee proceedings was not withdrawn, it will render the Settlement Agreement to be more difficult to be performed. In fact, MH Realty won’t even be able to comply with the settlement sum in term (i). All in all, there was never any non-compliance to begin with (as found earlier above). Court’s finding on this issue [74] Thus, the Court finds that the Plaintiff had been diligent in his duties as a solicitor in handling not only the garnishee proceedings but the matter in general. Court’s findings on the third element of qualified privilege (in tandem with the first element) [75] Herein, in light of the above findings, this Court finds that on the first element (being the rights and interest to communicate to the defamatory fax to the Plaintiff’s staff) the Defendant had failed to prove their rights and interest as from the outset, there was never any non-compliance of the Settlement Agreement to be held against the Plaintiff. [76] Subsequently on the third element (on improper motive or malice), this Court finds that as the Defendant’s allegation of non-compliance of all the terms, inclusive of terms (ii), (iii) and (iv) are all untrue, as well as void of any basis, the Plaintiff had successfully proven that the Defendant had conducted himself recklessly and in malice when the Defendant transmitted the defamatory fax to the Plaintiff’s staff when the Defendant had known or ought to have known that the allegations were false and untrue. [77] In the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ, the Court of Appeal had held that there was malice simply for the act of failure of verification in search for the truth. The Court further adds that such act was a reckless conduct. In the present case, the Defendant had known or at least ought to have known that their allegations were false or untrue. The Defendant’s conduct in the present case is far more reckless and malicious than the decided case above. Court’s finding on the Defendant’s defence of qualified privilege [78] Bearing in mind that the Defendant had failed to satisfy all three elements requisite to prove their defence of qualified privilege, this Court finds that the Defendant cannot hide under the guise of such defence and be afforded the defence of qualified privilege. Defence of Fair Comment [79] The Defendant in their pleadings and submission had contended on the defence of Fair Comment and had placed reliance on Section 9 of the Defamation Act 1957. However, again the Defendant had little submitted in his written submission in arguing this defence. Again, it hinges upon the justification that his defamatory fax was transmitted as a fair comment against the alleged fact that the Plaintiff had failed to ensure simultaneous compliance of the terms of the Settlement Agreement. The law on Fair Comment Section 9 of the Defamation Act reads: “9. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.” (emphasis added) [80] The recent Court of Appeal decision in the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 had held the following with regards to the defence of fair comment at paras 50 – 51: [50] The law on the defence of fair comment is that if a defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment. The courts have said that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment. [51] The comment must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for the defendant to prove that the underlying facts are true. If he or she is unable to do so, then the defence will fail… (emphasis added) [81] Close perusal of the Defendant’s Written Submission reveals very little argument on the elements need to be proven in establishing this defence of fair comment. It is entirely unclear in what manner does the Defendant asserts that the defamatory fax was not a statement of fact and was a matter of public interest. This Court cannot on its own volition attempt to make a case for any of the parties. It had not been argued by the Defendant on which part of the statements were mere opinion and not a statement of fact. [82] This Court nonetheless, finds valuable assistance in the above decision of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 whereby the Court in this case had dealt with both the defences of qualified privilege and fair comment in tandem: “… Suffice for us to say that as a matter of law, the defence of fair comment, like one of qualified privilege, depends on the fact that when it was made, it was made without malice. It is for the plaintiff to prove that the impugned statement was made with malice aforethought. [53] In this case, on the same reasons as above, pertaining to our findings on the defence of qualified privilege, the defendants, with respect, cannot succeed on the defence of fair comment because there was malice that can be readily inferred from the surrounding circumstances as found in the evidence pertaining to the publication of the defamatory statements against the plaintiff. With respect, we agree with learned counsel for the plaintiff on that score.” (emphasis added) [83] The decision above had succinctly set the stance of the law regarding the defence of fair comment; in that, (similar to the defence of qualified privilege) the defence of fair comment also depends on the element of malice. [84] Thus, as had been founded earlier on the defence of qualified privilege, the Plaintiff had successfully proven that the Defendant had transmitted the defamatory fax in malice, in improper motive and reckless as their allegations of non-compliance of the Settlement Agreement were false and untrue. [85] Furthermore, even if the libellous statement of the Defendant was merely an expression of an opinion (which was not proven by the Defendant), such opinion was expressed based on false unproven facts. Thus, notwithstanding the libellous statement was an expression of an opinion (which was not proven by the Defendant), the Defendant cannot invoke the defence of fair comment. Court’s finding on the Defendant’s defence of Fair Comment. [86] Thus, in cognizance of the above finding that the Defendant had transmitted the libellous fax recklessly knowing or ought to have known that it was based on false allegations, the Defendant had failed to prove their defence of Fair Comment. Conclusion [87] Based on the above mentioned findings, the Defendant is therefore liable for the tort of defamation in respect of the impugned statements. Assessment of Damages General Damages [88] For the purpose of determining the appropriate amount of damages to be awarded to the Plaintiff, this Court is guided by many decided cases on considerations ought to be taken into account in assessing damages. (See: i. MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 AMR 1776, the Federal Court set out the factors to be considered in assessing damages in a defamation case, namely; (1) the position and standing of the plaintiff; (2) the extent of the publication; (3) the mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel; (4) the uncertainty undergone in litigation; (5) conduct of the Defendants from the time of the libel down to the very moment of the verdict; (6) the absence or refusal of any correction, retraction or apology. ii. Datuk Harris Salleh v Abdul Jalil Bin Ahmad [1984] 1 MLJ 7 iii. Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan bin Hamzah [1995] 1 MLJ 39 iv. Cassell & Co v Broome [1972] AC 1027). [89] In the present case, the Plaintiff is an advocate and solicitor who has been in active practice for 23 years. The statements contained in the two letters have obviously injured the Plaintiff’s reputation as a senior advocate and solicitor However, this court is also minded that the publication of the said statements were within the confine of the Plaintiff’s office. (See: AJA Peter v OG Nio & Ors [1980] 1 MLJ 226) The Court further considers that client alike the Defendant must be reminded that they could not and should not take out their frustration on his lawyer in this manner, despite knowing that his solicitor had carried out the necessary action in the due process of litigation or legal proceedings. One must not write to injure one’s reputation, more so of lawyers whose livelihood hinges upon their reputation. Having considered all these factors, this court opines RM50,000.00 general damages as an appropriate amount to be awarded to the Plaintiff. Exemplary Damages [90] The Plaintiff further asked this court to consider awarding him exemplary damages. It must be borne in mind that the objective of exemplary damages is to punish the Defendant where the Defendant’s wilful act were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. [91] The principle relating to exemplary damages in tort has been expounded in the case of Rookes v Barnard [1964] AC 1129. Lord Devlin in Rookes v Barnard sets out the three categories where exemplary award are appropriate. They are: (i) when power to do so is given by statute: (ii) oppressive, arbitrary or unconstitutional conduct by government servants; and (iii) conduct calculated to result in profit. The principle expounded by Lord Devlin in Rookes v Barnard has been followed by the Courts in Malaysia. [92] In so far as this case is concerned none of these three mentioned categories are applicable. Punitive Damages [93] It is this Court’s view an award of RM10,000.00 is appropriate. [94] This Court further orders, order in terms of – prayer 65 (b), (c) of the statement of claim. Interest at the rate of 5% per anum on the judgment sum from date of filing of writ until full realisation of the judgment sum. As to the issue of costs [95] Having heard brief submissions from both counsels for the Plaintiff and the Defendant, this Court hereby orders the Defendant to pay the Plaintiff RM20,000.00 in costs. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court NCVC 13 of Shah Alam Selangor Darul Ehsan Dated the 14th day of November, 2014. For the Plaintiff - Tetuan Muru & Partners Mr. Murugayah For the Defendant - Tetuan Rathi MG Associates Ms. Rathimalar 42

Tika 2.6.0

23NCVC-17-04/2013

PLAINTIF SANDOSH A/L JN ANANDAN DEFENDAN SIVAJANAM A/L SANGARAPILLAI

14/11/2014

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0cd2a7e8-e217-43c5-801f-b5e8974f7497&Inline=true

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CIVIL SUIT NO : 23NCVC-17-04/2013 BETWEEN SANDOSH A/L JN ANANDAN .... PLAINTIFF AND SIVAJANAM A/L SANGARAPILLAI .... DEFENDANT GROUNDS OF JUDGMENT (After Full trial) [1] The Plaintiff (Sandosh s/o JN Anandan) is a practicing lawyer who runs his own sole proprietor practice under the name Tetuan Sandosh Anandan. [2] The Defendant (Sivajanam s/o Sangarapillai) is an individual residing at No. 3, Jalan Mohd Tahir 20, Taman Sri Klang, 41200, Klang Selangor Darul Ehsan and was formerly the client of the Plaintiff. [3] The Plaintiff in this case had commenced this civil action against the Defendant claiming for damages in the form of general, exemplary and punitive, for tort of defamation in respect of two letters dated 12.2.2013 and 15.3.2013 written by the Defendant to the Plaintiff in the course of their solicitor and client relationship. [4] The Defendant had sent the letter dated 12/2/2013 via fax on 13/2/2013 and the Plaintiff had received it on 14/2/2013. While the letter dated 15/3/2013 was also sent via fax by the Defendant on 15/3/2013 and was received by the Plaintiff on 19/3/2013. The factual background giving rise to the defamation action by the Plaintiff is as follows: [5] The Defendant’s daughter by the name of Kavita had on 9.5.1994 purchased a condominium unit known as No. 15A-5-Block A, Type B d’Haven (No. 15A-5 unit) from a developer, MH Resort Sdn. Bhd. (MH Resort) at a purchase price of RM221,880.00. [6] Later, both Kavita and MH Resort had agreed to substitute the No. 15A-5 unit to a new unit known as No. 7A-6 (the said property) for the price of RM222,880.00. [7] Thereafter vacant possession of the said property was delivered to Kavita on 15.11.1997. Despite the vacant possession of the said property was delivered to Kavita in 1997 she could not move in into the said property immediately as the Certificate of Fitness of the said property was not obtained by MH Resort. The Certificate of Fitness was only obtained in 2006. [8] Due to the delay on the part of MH Resort to obtain the Certificate of Fitness of the said property, Kavita claimed that she is deprived of obtaining benefits from the said property in terms of its occupation or rentals. [9] On 13.12.1999, Kavita had executed a Power Of Attorney in favour of the Defendant empowering the Defendant to act on her behalf in respect of the said property. [10] The Defendant thereafter had engaged Messrs. Rajadevan & Associate to initiate a civil action against MH Resort in the Shah Alam High Court. [11] On 29.7.2009, a judgment was entered in favour of the Defendant and among the order obtained by the Defendant against MH Resort was that MH Resort pay the damages for the losses sustained by Kavita for being unable to rent out the property from December 1999 until the Certificate of Fitness is obtained. The damages is to be assessed by the Senior Assistant Registrar (SAR). [12] Before the assessment of damages is carried out by the SAR, the Plaintiff was engaged by the Defendant to take over the conduct of the matter in place of Messrs. Rajadevan & Associates. [13] Upon his appointment as solicitor for the Defendant, the Plaintiff had proceeded to render his services and represented the Defendant for the following proceedings: (a) Assessment of damages Shah Alam High Court Originating Summons no. MT4 (MT3)-24-640-2006; b) Appeal against the judgment dated 25/8/2010 of Shah Alam High Court; c) Notice pursuant to section 218 of the Companies Act 1965, Shah Alam High Court originating summons No. MT4 (MT3)-24-640-2006; d) Garnishee Proceedings vide originating summons of No. MT4 (MT3)-24-640-2006; e) Intervenor: D’Haven Condominium Management Shah Alam High Court “SAHC” Originating Summons No. MT4 (MT3)-24-640-2006; f) Settlement Agreement dated 10/05/2012. [14] After settlement of the Defendant’s matter, the Plaintiff thereafter had issued a bill for the legal fees/charges incurred for rendering his professional services to the Defendant. [15] In response to the bill, the Defendant had disputed the bill and also questioned the credibility of the Plaintiff as a solicitor. Hence, it has trigged exchange of communications between the Plaintiff and Defendant which has led to the two letters sent to the Plaintiff by the Defendant. [16] The Plaintiff had contended that the statements contained in the two letters had maliciously defamed him. The two letters are reproduced here: (i) Letter dated 12.2.2013: “No. 3, Jalan Mohd Tahir 20 Taman Sri Klang Jalan Raja Nong 41200 Klang 12th February 2013 M/s Sandosh Anandan Advocates & Solicitors Unit A502, Block A Kelana Jaya 47301 Petaling Jaya Attention : Mr. Sandosh Anandan Dear Sirs, Re: (i) Shah Alam High Court Originating Summons No. MT4 (MT3)-24-640-2006 Inspection of Unit 7A-6, d’Haven Condominium Klang (ii) Klang Sessions Court Summons No. 52-2143-05 Your letter dated 2nd January 2013 on the above matter refers. As directed by your goodself, I did meet with the Developer on the defects noted in the unit. He (Mr. Loo) has refused to attend to the said defects. One of the terms of the Settlement Agreement is that the unit is habitable/tenantable and complies with the Fourth Schedule of the Sale and Purchase Agreement dated 9th May 1994. To liaise with the Developer’s Solicitors on the defects by you is only ancillary assignment on one of the conditions in the Settlement Agreement which rightly should have been finalized before the stamping of the said Settlement Agreement. At the material time of preparation of the Settlement Agreement, I did bring to your attention about the simultaneous availability of a habitable/ tenantable unit and a reasonably placed car park. Your reply was not to place the cart before the horse. Please note that the car park allocated could be described as God’s forsaken place, the last lot at a dead and (difficult to go in and more difficult to come out). Is this what an early purchaser like me gets? You too in a correspondence dated 3rd September 2012 had stated that the status of the unit is a non-issue as it has to comply with the Sale and Purchase Agreement which is currently inclusive of the Supplemental Agreement and that has to be met. The issue of a habitable unit has been raised since early 2012 and is mentioned in your letter dated 1st March 2012 to M/s Kamal Hashim Pury & Lim. This has not been dispute by them either. At the material time of me signing the Settlement Agreement, you did not mention that this document would not attract any fees and yet currently rectify an anomaly, committed in your over enthusiasm to push through the Settlement Agreement with total disregard to whether the other three terms in the Settlement Agreement were in a position to be simultaneously implemented had misled your thoughts that money settles all issues, has been shown to be wrong and yet you ironically demand payment up front to cover your short comings. If only the Settlement Agreement had been diligently executed matters would not have reached this stage. Currently the Settlement Agreement has become an antiquated document. Who is responsible for this Legal Flaw? Why should I be burdened with these legal costs? As to the quantum of legal fees due, this issue will be settled at an appropriate platform. As to your suggestion, I Am agreeable to appoint another lawyer to takeover and proceed with the matter at hand. Please confirm that you are agreeable to handover to the new lawyer all original court papers, documents and all monies held by you currently. Thank you. Yours faithfully, t.t (S. Sivagnanam PPN. PJK)” (ii) Letter dated 15.3.2013: “No. 3, Jalan Mohd Tahir 20 Taman Sri Klang Jalan Raja Nong 41200 Klang 15th March 2013 M/s Sandosh Anandan Advocates & Solicitors Unit A502, Block A Kelana Square No. 17, Jalan SS 7/26 Kelana Jaya 47301 Petaling Jaya Attention : Mr. Sandosh Anandan Dear Sirs, Re : (i) Shah Alam High Court Originating Summons No. MT4 (MT3)-24-640-2006 Unit 7A-6, d’Haven Condo, Klang, Repair yet to be undertaken. (ii) Klang Session Court Summons No. 52-2143-05 _______________________________________________________ Your letter dated 1st March under the above caption refers. As the writer of letter dated 12th February 2013, I wish to state that I have no reason to insult or to make any unnecessary inference. What I wrote is as I see the delayed implementation of the Shah Alam High Court Decision. For example, the Settlement Agreement was documented on 10th May 2012. One of the terms – a habitable/tenantable unit is still pending and 10 months have passed with no end in sight. Since the time of Michael Nathan’s case in October 2005 to current, all my correspondence to your office has been by ordinary email. Of late, for fast delivery, I am able to use my friend’s office fax machine for the remittance of my correspondence. As to your past suggestion I am agreeable to appoint another lawyer to takeover and proceed with the matter at hand. I had also mentioned this is my letter of 12th February 2013. Please confirm that you are agreeable to handover to the new lawyer all original court papers, documents and monies less fees held by you currently. However monies withheld in excess of what is due to you, my opinion, will be contested. Please give the chance of lawyer matter your immediate attention. Thank you. Yours faithfully, t.t. (S. Sivagnanam PPN. PJK)” Plaintiff’s case [17] It is the Plaintiff’s case that the statements in the letters dated 12/2/2013 and 15/3/2013 are defamatory in nature and/ or libel against the Plaintiff, whereby the original and natural meaning of the statements is understood to be, among others that:- a) The Plaintiff is an Advocate & Solicitor who has no potential, b) The Plaintiff is a person who is without professional ethics, c) The Plaintiff is a person who is not trustworthy, d) The Plaintiff is a liar, e) The Plaintiff is not a responsible person; f) The Plaintiff is a person who is not competent; g) The Plaintiff is a person who is incapable or inefficient in his work as a solicitor; h) The Plaintiff is a person who cannot be trusted in fulfilling his responsibilities in respect of his client’s work. [18] The Plaintiff in his statement of claim had also pleaded that by way of insulting innuendos contained in the Defendant’s letter dated 12/2/2013 & 15/2/2013 which are defamatory and/ or libel towards the Plaintiff and is taken to mean and understood in other words to mean that: a) The Plaintiff is a person who is greedy; b) The Plaintiff has committed a fraudulent act towards the Defendant; c) The Plaintiff has conspired with the MH Resort & MH Realty; d) The Plaintiff is incapable of resolving the Defendant’s case; e) The Plaintiff has waived Kavita’s and/or the Defendant’s rights; f) The Plaintiff has no integrity; [19] Arising from alleged malicious and libellous statements contained in both the letters, the Plaintiff claims he had sustained distress, difficulty, pain and suffering and humiliation. Defendant’s case [20] The Defendant has disputed the Plaintiff’s claim and defended his actions by contending that the statements in the impugned letters were not meant to defame the Plaintiff. The Defendant contends inter alia: a) The letters are not defamatory b) There was no publication of the letters. c) The said letters were addressed to the Plaintiff and were not published to any third party. d) The statements does not refer to the Plaintiff as the two letters were sent to the Plaintiff reasonably and in the normal course of business. e) The Defendant sent the said letters to the Plaintiff in the same manner as in the past that is by fax. f) The Plaintiff did not direct the Defendant not to send letters through fax and the Plaintiff’s fax number is in the Plaintiff’s office. [21] In justifying his action, the Defendant contended that the impugned letters were sent to the Plaintiff as a result of the Plaintiff’s failure to take the necessary and appropriate action in the course of his conduct as solicitor for the Defendant in respect of the said property. Hence, it was the contention of the Defendant that even if the statements contained in the impugned letters are defamatory in nature and there was publication of the malicious statements, it was the duty and the legal and social obligation of the Defendant. And therefore the defence of qualified privilege is available to the Defendant. The Defendant also pleaded the defence of fair comment under section 9 of the Defamation Act 1957. The Law [22] It is trite law that for the Plaintiff to succeed in his defamation suit against the Defendant, the Defendant must prove three elements namely: (i) that the statements in both the letters must carry defamatory ascription. (ii) the defamatory statements must refer to him. (iii) the defamatory statements must be published to a third party (publication) (See i. Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315. ii. Kian Lup Construction v. Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32 @ 41. iii. Ismail Shamsudin v. Abdul Aziz Abdan [2007] 8 CLJ 65 @ 68-69). [23] Now the issues to be determined here is, firstly, whether the statements contained in the letters are defamatory. Secondly, whether the statements referred to the Plaintiff. Thirdly, whether there was publication of the statements to the third party and fourthly, whether the defence of qualified privilege and/ or fair comment under section 9 of the Defamation Act 1957applicable to the Defendant. First issue - Whether the statements are defamatory [24] Clearly, upon reading of the impugned statements, this Court is of the considered view that these statements are defamatory in nature. The statements when it is read and understood in their natural and ordinary meaning (a meaning in which reasonable man of ordinary intelligence would be likely to understand them) gave the meaning and was understood that: a) the Plaintiff was only interested in the Defendant monies, not the duties and professional obligation to the Defendant as his client. b) the Plaintiff has not carried out his duty as a solicitor professionally and thus was incompetent, as the Plaintiff did not attend to items (ii), (iii) and (iv) simultaneously being settled at time of signing of Settlement Agreement by Defendant with the Developer. [25] This Court finds the statements were indeed defamatory and libellous. Second issue - Whether the impugned statements refer to the Plaintiff. [26] The question of the said statements referring to the Plaintiff is patently clear. Both letters were written to the attention of the Plaintiff and was meant for the Plaintiff. Third issue - Whether the impugned statements was published to a third party (whether there is publication) [27] What constitutes publication of a defamatory statement has been explained and illustrated by the Supreme Court in the case of S. Pakianathan v. Jenni Ibrahim & Another case [1988] 1 CLJ Rep: 233 wherein the Supreme Court has held that: “In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the Plaintiff. By publication is meant the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written. The uttering of a libel to the party libeled is no publication for the purposes of a civil action. Wenhak v. Morgan [1880] 20 QBO at page 637. A Plaintiff will not, as a rule, be permitted to wait until after discovery before naming the persons to whom a libel was published: Barham v. Lord Huntingfield [1913] 2 KB 193, CA”. [28] In Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315. Dzaiddin Abdullah J (as his Lordship then was) concluded that there was publication of defamatory words to a third party in the case before his Lordship. In concluding there was sufficient publication to a third person, at page 316 his Lordship said this: “In support of the said averment, the Plaintiff called Miss Ooi Ah Moi (PW2) to testify that at the material time she was employed by the Plaintiff in his firm as a general clerk. Her duties included the opening of files and correspondences received by the firm. When shown exh P5, she stated that she remembered opening it. She read its contents, searched for the connecting file and passed it for the Plaintiff’s attention. Under cross-examination, she stated that she also carried out secretarial duties for the Plaintiff. She received an average of ten letters per day and normally opened these letters and read their contents. The letter P5 together with the file was given to the Plaintiff personally. In addition exh P5 was also sent to Perianayagam, who was the defendant’s agent. Upon these evidence, I am satisfied and I hold that there is sufficient publication to a third person.” [29] Before this court, the counsel for the Plaintiff had submitted that there was publication of the defamatory statements to a third party in the present case as the said letters were sent to the Plaintiff through the facsimile machine. The Plaintiff’s Legal Assistant, Ms Loh Yun Ping (PW2) had testified that the said faxed letters from the Defendant were received by the staff of the Plaintiff to be recorded. She also stated in her evidence that all faxed letters or mails (post or otherwise) received will be taken by the staff. The staff will then record the faxed letters or mails in the incoming mail book and then put them into the folder for review by solicitors and chambering students. It will then be circulated. She further stated that all letters or mails are then sent to the Plaintiff who thereafter proceeded to forward the same to her and finally viewed by the Plaintiff’s staff i.e the clerk in charge of the file by the name of Kalamani Sundaram. The counsel for Plaintiff in his submission had placed great reliance on his Lordship Dzaiddin J’s decision and submitted that the present case falls squarely on Ayob’s case with regard to publication to a third party. [30] This Court is entirely in agreement with the Plaintiff counsel’s submission. The defamatory statements were indeed published to a third party in this case. Fourth issue - whether the defence of qualified privilege, fair comment under section 9 of the Defamation Act 1957 applicable to the Defendant. [27] Now, in light of this Court’s earlier finding that the fax transmitted by the Defendant to the Plaintiff was indeed a libellous conduct, the Court shall delve into the defences pleaded by the defendant. One of which is the defence of qualified privilege. [28] From the outset, it needs to be noted that the Defendant’s Written Submission over his defences are brazenly brief. There was very little reference made to any particular evidence and/or documents to support the Defendant’s contentions on his defences. Defence of Qualified Privilege [29] Nonetheless, it had come to the understanding of the Court, that the fulcrum of the defence of qualified privilege is the Defendant’s contention that it is the right of the Defendant to correspond to the Plaintiff as an interested party as their solicitors with regards to an alleged non-compliance of the Settlement Agreement executed between the Defendant and MH. The particulars of the alleged non-compliance are reproduced as follows: i. The damages of RM 212, 869.54 ii. Documents for the replacement unit iii. Handing over of a habitable unit with one set of keys iv. Covered car park. [30] The term for damages were admitted to have been in compliance and only these three particulars itemised above had been alleged to have not been complied with by the Plaintiff. [31] It was also contended that the four terms above was supposed to have been settled simultaneously. The Law on Qualified Privilege [32] This Court finds assistance from the high court decision of Mohd Zawawi Salleh J in the case of Sivabalan P Asapathy v The New Straits Times Press (M) Bhd [2010] CLJ at page 900, para. 34 in understanding the requisite elements in proving the defence of qualified privilege: “[34] On this point, it is appropriate to refer to the judgment of Lord Carswell in the case of Edward Seaga v. Leslie Harper, Privy Council Appeal No. 90 of 2006, [2008] UKPC 9. There, his Lordship had this to say: 5. The defence of qualified privilege, like so many other doctrines of the common law, developed over a period of time, commencing in the 19th century, and is still in the process of development. The history is conveniently summarized in the judgment of Dunn LJ in Blackshaw v. Lord [1984] QB 1, 33-4, drawing on the argument of Sir Valentine Holmes KC in Pereira v. Peiris [1949] AC 1, 9. By the time of the decision of the Court of Appeal in Purcell v. Sowler [1877] 2 CPD 215 it was assuming its recognisable modern form. It is founded upon the need to permit the making of statements where there is a duty, legal, social or moral, or sufficient interest on the part or the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, so long as they are made without malice, that is to say, honestly and without any indirect of improper motive. It is the occasion on which the statement is made without the privilege, and under the traditional common law doctrine there must be a reciprocity of duty and interest: Adam v. Ward [1917] AC 309, 334, per Lord Atkinson. The development of the law is accurately and conveniently expressed in Duncan and Neill on Defamation, 2nd ed (1983), para 14.04: From the broad general principle that certain communications should be protected by qualified privilege 'in the general interest of society', the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication.” (emphasis added) [33] Now, it had reached to this Court’s understanding that the most pertinent element to be deliberated upon is the existence of malice and/or improper motive. Both parties have contended to this issue regarding malice. The Plaintiff had at length submitted in proving malice in the defendant’s fax while the defendant had submitted (though very briefly) on the correctness of the fax and that there was no improper motive or malice in transmitting the fax. [34] Indeed, as deliberated in case of Ayob Saud v TS Sambanthamurthi [1989] 1 MLJ 315 HC, his Lordship Mohamed Dzaidin J (as he then was) had delved into the issue of malice in the defence of qualified privilege: “Where a defence of qualified privilege is set up, as in the present case, the burden lies on the defendant to prove that he made the statement honestly, and without any indirect or improper motive. Then, if he succeeds in establishing qualified privilege, the burden is shifted to the plaintiff in this case to show actual or express malice which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged…”(emphasis added) [35] The same was echoed in the recent Court of Appeal decision in the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 at para 36: “In the defence of qualified privilege, the underlying exonerating element is that the defamatory statements were made without malice. The law is that it lies on the plaintiff to show that there was malice that had actuated the defendant when he published the impugned statements.” First element: Interest and rights to communicate to the Plaintiff [36] This Court shall first, address the other requisites in proving the defence of qualified privilege. Firstly, the Defendant must prove that they have such rights or interest to express their grievances to the Plaintiff’s staff. This Court would not go as far as to deny that a client’s rights to communicate to his or her lawyers. Nonetheless, the supposed right or interest to communicate the defamatory fax in the present case hinges upon the allegation of non-compliance against the Plaintiff. These non-compliances shall be discussed and decided together with the third element below. Second element: Recipient has interest or duty to receive communication [37] Secondly, it is this Court’s finding that the Plaintiff’s staff, is not a recipient having a corresponding interest or duty to receive such defamatory statements. Unlike in the case of Sanmugam Panmugam Ponnan v Halijah Abbas & Suriyati Hasimah Mohd Hashim [2013] 1 LNS 257, the Court had dealt with a publication of defamatory material unto the third party being the Advocates & Solicitors Disciplinary Board. On the same element here, the court in that case had held that indeed the Disciplinary Board is a recipient which has an interest and responsibility to receive, investigate and determine complaints against lawyers, thus fulfilling the second element. However in the present case, the Plaintiff’s staff is hardly any person who would have the responsibility or interest to receive such defamatory statement. The staff has no responsibility or interest to receive the grievances of the Defendant such as the interest and responsibility of the Disciplinary Board to receive such grievances against lawyers. Thus, this defence, firstly shall fail on the non-fulfilment of the second element. Third element: Improper motive and/or malice (discussed in tandem with the first element) [38] In casting off any shadow of doubt, notwithstanding the above finding on the second element, this Court shall still delve into the third element of improper motive and/or malice. [39] The Defendant’s submission briefly is that they had the rights to communicate and had not been malicious in transmitting the fax; in that the alleged non-compliance of the Plaintiff gives the Defendant proper right and motive to transmit the defamatory fax. On the contrary, the Plaintiff’s submission was that there was never such non-compliance on their behalf and that the Defendant had transmitted the fax recklessly and therefore, in malice. The Plaintiff had relied on the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ which had held: “…Clearly to our mind, there was malice on the part of the defendants to be inferred as they had, in the circumstances of this case, deliberately stopped short in their inquiries in order not to ascertain the truth. Knowing very well the dire consequences that could befall the plaintiff as a result of the published news item regarding the plaintiffs tweets, the defendants had nonetheless proceeded to air the news to the wide spectrum of national TV audience without first verifying with the plaintiff. [48] As such, it is not difficult to see the reckless conduct of the defendants in publishing the defamatory statements in the circumstances. Such conduct has clearly evinced the presence of malice on the part of the defendants in publishing the defamatory statements against the plaintiff. As such the defendants could not avail themselves of the defence of qualified privilege in this case” (emphasis added) [40] This Court shall address these alleged non-compliances individually. a. Simultaneous Provision of term (iv) for a Covered Car Park [41] It is to this Court’s attention that there is little submission and/or evidence by the Defendant in raising this point of non-compliance. A close scrutiny of the Defendant’s own Witness Statement would unravel very little reference to any correspondences prior and subsequent to the execution of the Settlement Agreement dated 10.5.2012. Furthermore, this Court is in agreement with the Plaintiff that the Defendant had failed to justify their claim for the covered car park. A plain reading of the Notes of Evidence shows that the Defendant merely and broadly refers to “documentation” and not to any specific documents adduced into the Court. [42] Adding to that effect, this Court is in agreement that the Settlement Agreement had never mentioned of any covered car park. As submitted by the Plaintiff, the term employed, agreed and executed in the Settlement Agreement was only for “JD1 is to provide a car park in respect of the Property”. There was never any mention of a covered car park. [43] Now on this point, this Court is guided by the decision of the Court of Appeal in the case of Capping Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579 which had dealt with the interpretation of Settlement Agreements: “[18] With respect to the learned judge, we agree with the submission of the appellants that he had misconstrued the two settlement agreements and settlement memorandum (collectively referred to as the three settlement agreements) and our reasons are these. [19] The basic legal principle of interpretation of any written document is as stated by the Supreme Court of India in Central Bank of India v Hartford Fire Insurance Co Ltd AIR 1965 SC 1288 and it is this: Now it is commonplace that it is the court’s duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however much it may dislike the result.” (emphasis added) [44] Applying the above excerpt to the present case, the words used in the Settlement Agreement are vividly clear. There are no ambiguities in the words of the terms of agreement. Thus, this Court cannot decide against the meaning intended from the plain words of the Settlement Agreement. And therefore, the Defendant’s contention on this issue shall fail and herein, the Defendant was not justified in transmitting the defamatory fax based on the alleged claim for a covered car park. [45] This Court is minded that the Defendant had submitted that the meaning ascribed to “car park” had all along been understood by the parties, particularly the Plaintiff, was covered car park. Nonetheless, the Defendant had never substantiated such assertion in their evidence or submission. [46] But to remove any doubts, it is also this Court’s finding that even the Defendant himself had never intended “car park” to mean covered car park leading up to the execution of the Settlement Agreement. This Court had examined the numerous correspondences between the parties and shall reproduce those relevant correspondences in justifying this finding. Firstly, prior to the execution of the Settlement Agreement, the Defendant had sent a letter dated 27.1.2012 to the Plaintiff in the course of negotiating the terms of settlement. The Defendant wrote: “If the Developer does not intend to purchase the unit then he has to comply with the following as per Offer Letter/Sales and Purchase Agreement: … b) To provide a reasonable placed covered car park” [47] This Court acknowledges that the Defendant did forward this term for a covered car park. However, this Court also acknowledges that in a subsequent letter to the Plaintiff, the Defendant himself had deleted and omitted the word “covered”. This is evident in the Defendant’s letter to the Plaintiff dated 29.1.2012 in which the Defendant himself had stated his terms of settlement in the following sentence: “5) Developer to provide a reasonably placed car park” (emphasis added) [48] It is evidently clear here, that even the Defendant himself had meant to claim only for a car park and not a covered car park. He himself omitted the word “covered”. This Court can only draw an irresistible inference that the Defendant himself had not anymore meant to claim for a covered car park. [49] What had been included in the Settlement Agreement is actually a direct reflection of the Defendant’s own intent and the Plaintiff had done no such alleged non-compliance in drawing up the Settlement Agreement. [50] Notwithstanding the above, it has to be minded that the Defendant also has all the opportunity to raise such concern (if any) over the covered car park. However, the Defendant had done nothing to that effect and had instead signed and executed the Settlement Agreement without any complaints. [51] Furthermore, it was agreed by the parties, inclusive of the Defendant himself, that any prior representations or statements, be it oral or written shall be replaced by the Settlement Agreement. The operation of the Settlement Agreement and its terms overrides any prior documents, correspondences and communications. This is evident in clause 4.4 as agreed between the parties in the Settlement Agreement reproduced here: “4.4 This Settlement Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. This Settlement Agreement replaces any representations or statements, oral or written, made about the subject matter of this Settlement Agreement. This Settlement Agreement may be amended only by a written agreement signed by both parties…“ (emphasis added) [52] Thus, the Defendant cannot now refer to previous documentations, if any (which this Court denies) to contradict the clear words of the Settlement Agreement Court’s finding on this issue [53] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non-compliance over the term for a car park in the Settlement Agreement. Thus, firstly on this issue, the Defendant had published the defamatory fax in utter recklessness. b. Simultaneous compliance of terms (ii) and (iii) [54] As to the remaining terms (ii) and (iii) the Defendant’s contention of non-compliance is simply that, as per Q&A 8 of the Defendant’s Witness Statement, these terms had not been complied with simultaneously. And stemming from this alleged non-compliance, the Defendant had refused to sign the Supplementary Agreement which occasioned the further delay of the performance of the Settlement Agreement. [55] However, this Court shall stress that this assertion for “simultaneous” compliance had not been referred to any particular document. Even in the Defendant’s Witness Statement, the only reference made to such non-compliance is merely on a letter, subsequent to the execution of the Settlement Agreement dated 3.8.2012 from the Defendant to the Plaintiff reminding the Plaintiff about the alleged non-compliance. No document was ever referred to as to prior negotiations or correspondences to prove that this supposed term for simultaneous compliance had ever been intended to be included between the parties. This Court altogether cannot draw such intention as it is void of any basis. [56] Notwithstanding the absence of any document to infer such intention, it further adds to the detriment of the Defendant’s contention that the Settlement Agreement had not at all mentioned of this supposed simultaneous compliance. This Court is in agreement with the Plaintiff that the operation and compliance of the Settlement Agreement had been agreed to and encapsulated in Clauses 4.3 and 4.4 of the Settlement Agreement. For the sake of convenience, the aforementioned clauses are reproduced here: “4.3 The parties recognize that it is impracticable to make provision for every contingency which may arise in the course of performance of the provisions hereof and accordingly declare their intention that this Settlement Agreement shall operate between them with fairness and without detriment to the interest of any party and that each party shall use its best endeavours to ensure that full effect is given on the terms of this Settlement Agreement in the spirit which it was agreed. 4.4 This Settlement Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. This Settlement Agreement replaces any representations or statements, oral or written, made about the subject matter of this Settlement Agreement. This Settlement Agreement may be amended only by a written agreement signed by both parties…“ (emphasis added) [57] It is ultimately clear that there was never even the slightest iteration of a supposed “simultaneous” compliance over the terms of settlement. Further to that effect, as had been found earlier above that the words of the supplementary agreement carries no ambiguities, this Court shall only interpret the Settlement Agreement in the ordinary meaning of the words employed. (see Capping Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579). Thus, it is clear from the clauses above that there was no stipulation for a simultaneous settlement as alleged by the Defendant. Therefore it is this Court’s finding that there is no requirement for the Plaintiff to ensure compliance of the Settlement Agreement simultaneously. [58] The Plaintiff also raised the issue that even in the understanding of the Defendant over the Settlement Agreement, it was already impossible for the Settlement Agreement to be settled simultaneously. The Plaintiff referred to the Defendant’s letter to the Plaintiff dated 29.10.2012 which reads: “As signing of the Supplemental Agreement is acknowledgment of receipt of house keys and possession of the new unit (7A-6) please arrange for a joint inspection of the unit before I attend to the signing of the Supplemental Agreement.” (emphasis added) [59] Based on this statement, even the Defendant admits that the inspection of the new unit must precede the signing of the Supplemental Agreement. In the Defendant’s own understanding, the keys must be handed over first, during inspection, before the Supplementary Agreement for swapping the unit could be signed. It beckons the inference that even the Defendant himself understood that terms (ii) and (iii) were never meant to be complied with simultaneously. Court’s finding on this issue [60] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non-compliance over the terms (ii) and (iii) as alleged. Thus, also on this issue, the Defendant had published the defamatory fax in utter recklessness. Was the Supplementary Agreement an evidence of non-compliance? [61] The Court is minded that it was the Defendant’s assertion that the Supplementary Agreement was drawn up by the Plaintiff after realizing his “mistake” so to speak for not following over the items (ii), (iii) and (iv). However this Court cannot agree to this contention. Instead, this Court is in agreement with the Plaintiff’s contention that the Supplementary Agreement was drawn in pursuance of compliance of the Settlement Agreement. As per the Plaintiff’s letter dated 13.8.2012 to the Defendant, it was made clear to the attention of the Defendant that the Supplementary Agreement is purposed to facilitate the swapping of the property for the new unit. This, to this Court’s considered view, is in conformity with the agreed terms of the Settlement Agreement, particularly clauses 1.1 (d) and (e) of the Settlement Agreement which reads: “d) JD1 to deliver the keys to the Property e) JD1 is to provide to the JC a legal document confirming the swapping of the units” (emphasis added) [62] Thus, there is no basis for the Defendant to contend that the Supplementary Agreement was a measure taken upon realizing of a supposed mistake, as there was no mistake or non-compliance to begin with. It is not within the scope of the Settlement Agreement (as found earlier) that the terms should be complied with simultaneously. [63] And to cast away any shadow of doubts, it is apparent from the evidences that the Plaintiff had indeed complied with the clauses above. It is evidenced by the Plaintiff’s courier dated 4.12.2012 in which the Defendant had acknowledged receipt on 1.1.2013 and also vide the Defendant’s letter dated 1.1.2013 in receiving the keys to the property and four (4) copies of the Supplemental Agreement. Court’s finding on this issue [64] Thus, the Defendant’s contention on this basis shall fail and there were no rights and/or privilege for the Defendant to communicate the defamatory fax on the ground that the Plaintiff was never in non-compliance in the making of the Supplemental Agreement. Thus, similarly on this issue, the Defendant had published the defamatory fax in utter recklessness. Was there a delay occasioned by the Plaintiff causing non-compliance? [65] The Defendant contended that the Plaintiff’s failure to ensure simultaneous non-compliance had also caused further delay of the performance of the Settlement Agreement and had occasioned losses against himself. However, based on the myriads of correspondences adduced in the CBOD, the Defendant’s assertion holds untrue. This Court summarizes the following correspondences from the CBOD: Plaintiff’s letter dated 28.6.2012 As early as June 2012, the defendant had urged MH realty to strictly comply with the remainder of the terms unsettled. MH Realty’s letter dated 9.8.2012 MH Realty had only sent the draft Supplemental Agreement vide this letter on this date. Plaintiff’s letter dated 13.8.2012 The Plaintiff through this letter had already enclosed the draft Supplemental Agreement to the Defendant for their perusal and comments. Plaintiff’s email to MH’s Solicitors dated 16.8.2012 The Plaintiff through this email had queried on the status of the car park and keys. MH’s Realty’s email to the Plaintiff dated 27.8.2012 MH Realty enclosed an amended draft Supplemental Agreement. Plaintiff’s email to MH’s Solicitors dated 30.8.2012 The Plaintiff replied with respect of comments over the amended draft Supplemental Agreement. Plaintiff’s letters to MH’s Solicitors dated 5.9.2012, 13.9.2012, 20.9.2012, 27.9.2012, 3.10.2012 In all of these letters, the Plaintiff had consistently followed up for the finalization of the Supplemental Agreement. MH’s Letter to the Plaintiff dated 3.10.2012 MH agreed to the Plaintiff’s draft Supplemental Agreement and request for execution of the Supplemental Agreement. Defendant’s letter to the Plaintiff dated 29.10.2012 Only at this point in time the Defendant finally agreed to the Supplemental Agreement and issued further mandate to the Plaintiff over the Supplemental Agreement. [66] Subsequent to these exchanges of correspondences, the Defendant had remained to refuse to execute the Supplemental Agreement on the alleged ground that there was no simultaneous compliance of the Settlement Agreement. [67] Unto this, this Court reiterates that firstly, as found earlier above, there is no such requirement for simultaneous compliance of the Settlement Agreement. [68] Secondly, as there was no requirement of simultaneous compliance from the signing of the Settlement Agreement, thus, there was never any delay as alleged by the Defendant. [69] Thirdly, by closely scrutinizing the correspondences above, all the while until the Defendant agreed to the Supplemental Agreement on 29.10.2012, the Plaintiff had been diligent in pursuing the compliance of the Settlement Agreement against MH. Furthermore, it is clear that the parties were negotiating the terms of the Supplemental Agreement all through this time. [70] Fourthly, the refusal of the Defendant to sign the Supplemental Agreement is on his own wrongful volition of his false accusation simultaneous of non-compliance against the Plaintiff. Any subsequent delay of terms (ii) and (iii) is actually on the fault of the Defendant himself. Court’s finding on this issue [71] Thus, the Defendant cannot allege any delay against the Plaintiff to justify any privilege to transmit the defamatory fax against the Plaintiff. Thereto, the Plaintiff had not failed in ensuring compliance under this ground. Diligence in handling the garnishee proceeding [72] Now, it was contended by the Defendant that the Plaintiff had withdrawn the garnishee proceedings against PBB in the face of non-compliance of the remaining terms (ii), (iii) and (iv) above. And by this conduct, the Defendant seeks to justify their publication of the defamatory fax; in that there was no malice. [73] However, this Court disagrees with the Defendant simply for the reason that had the garnishee proceedings was not withdrawn, it will render the Settlement Agreement to be more difficult to be performed. In fact, MH Realty won’t even be able to comply with the settlement sum in term (i). All in all, there was never any non-compliance to begin with (as found earlier above). Court’s finding on this issue [74] Thus, the Court finds that the Plaintiff had been diligent in his duties as a solicitor in handling not only the garnishee proceedings but the matter in general. Court’s findings on the third element of qualified privilege (in tandem with the first element) [75] Herein, in light of the above findings, this Court finds that on the first element (being the rights and interest to communicate to the defamatory fax to the Plaintiff’s staff) the Defendant had failed to prove their rights and interest as from the outset, there was never any non-compliance of the Settlement Agreement to be held against the Plaintiff. [76] Subsequently on the third element (on improper motive or malice), this Court finds that as the Defendant’s allegation of non-compliance of all the terms, inclusive of terms (ii), (iii) and (iv) are all untrue, as well as void of any basis, the Plaintiff had successfully proven that the Defendant had conducted himself recklessly and in malice when the Defendant transmitted the defamatory fax to the Plaintiff’s staff when the Defendant had known or ought to have known that the allegations were false and untrue. [77] In the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ, the Court of Appeal had held that there was malice simply for the act of failure of verification in search for the truth. The Court further adds that such act was a reckless conduct. In the present case, the Defendant had known or at least ought to have known that their allegations were false or untrue. The Defendant’s conduct in the present case is far more reckless and malicious than the decided case above. Court’s finding on the Defendant’s defence of qualified privilege [78] Bearing in mind that the Defendant had failed to satisfy all three elements requisite to prove their defence of qualified privilege, this Court finds that the Defendant cannot hide under the guise of such defence and be afforded the defence of qualified privilege. Defence of Fair Comment [79] The Defendant in their pleadings and submission had contended on the defence of Fair Comment and had placed reliance on Section 9 of the Defamation Act 1957. However, again the Defendant had little submitted in his written submission in arguing this defence. Again, it hinges upon the justification that his defamatory fax was transmitted as a fair comment against the alleged fact that the Plaintiff had failed to ensure simultaneous compliance of the terms of the Settlement Agreement. The law on Fair Comment Section 9 of the Defamation Act reads: “9. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.” (emphasis added) [80] The recent Court of Appeal decision in the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 had held the following with regards to the defence of fair comment at paras 50 – 51: [50] The law on the defence of fair comment is that if a defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment. The courts have said that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment. [51] The comment must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for the defendant to prove that the underlying facts are true. If he or she is unable to do so, then the defence will fail… (emphasis added) [81] Close perusal of the Defendant’s Written Submission reveals very little argument on the elements need to be proven in establishing this defence of fair comment. It is entirely unclear in what manner does the Defendant asserts that the defamatory fax was not a statement of fact and was a matter of public interest. This Court cannot on its own volition attempt to make a case for any of the parties. It had not been argued by the Defendant on which part of the statements were mere opinion and not a statement of fact. [82] This Court nonetheless, finds valuable assistance in the above decision of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Television Malaysia Bhd & Anor [2014] 4 MLJ 242 whereby the Court in this case had dealt with both the defences of qualified privilege and fair comment in tandem: “… Suffice for us to say that as a matter of law, the defence of fair comment, like one of qualified privilege, depends on the fact that when it was made, it was made without malice. It is for the plaintiff to prove that the impugned statement was made with malice aforethought. [53] In this case, on the same reasons as above, pertaining to our findings on the defence of qualified privilege, the defendants, with respect, cannot succeed on the defence of fair comment because there was malice that can be readily inferred from the surrounding circumstances as found in the evidence pertaining to the publication of the defamatory statements against the plaintiff. With respect, we agree with learned counsel for the plaintiff on that score.” (emphasis added) [83] The decision above had succinctly set the stance of the law regarding the defence of fair comment; in that, (similar to the defence of qualified privilege) the defence of fair comment also depends on the element of malice. [84] Thus, as had been founded earlier on the defence of qualified privilege, the Plaintiff had successfully proven that the Defendant had transmitted the defamatory fax in malice, in improper motive and reckless as their allegations of non-compliance of the Settlement Agreement were false and untrue. [85] Furthermore, even if the libellous statement of the Defendant was merely an expression of an opinion (which was not proven by the Defendant), such opinion was expressed based on false unproven facts. Thus, notwithstanding the libellous statement was an expression of an opinion (which was not proven by the Defendant), the Defendant cannot invoke the defence of fair comment. Court’s finding on the Defendant’s defence of Fair Comment. [86] Thus, in cognizance of the above finding that the Defendant had transmitted the libellous fax recklessly knowing or ought to have known that it was based on false allegations, the Defendant had failed to prove their defence of Fair Comment. Conclusion [87] Based on the above mentioned findings, the Defendant is therefore liable for the tort of defamation in respect of the impugned statements. Assessment of Damages General Damages [88] For the purpose of determining the appropriate amount of damages to be awarded to the Plaintiff, this Court is guided by many decided cases on considerations ought to be taken into account in assessing damages. (See: i. MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 AMR 1776, the Federal Court set out the factors to be considered in assessing damages in a defamation case, namely; (1) the position and standing of the plaintiff; (2) the extent of the publication; (3) the mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel; (4) the uncertainty undergone in litigation; (5) conduct of the Defendants from the time of the libel down to the very moment of the verdict; (6) the absence or refusal of any correction, retraction or apology. ii. Datuk Harris Salleh v Abdul Jalil Bin Ahmad [1984] 1 MLJ 7 iii. Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan bin Hamzah [1995] 1 MLJ 39 iv. Cassell & Co v Broome [1972] AC 1027). [89] In the present case, the Plaintiff is an advocate and solicitor who has been in active practice for 23 years. The statements contained in the two letters have obviously injured the Plaintiff’s reputation as a senior advocate and solicitor However, this court is also minded that the publication of the said statements were within the confine of the Plaintiff’s office. (See: AJA Peter v OG Nio & Ors [1980] 1 MLJ 226) The Court further considers that client alike the Defendant must be reminded that they could not and should not take out their frustration on his lawyer in this manner, despite knowing that his solicitor had carried out the necessary action in the due process of litigation or legal proceedings. One must not write to injure one’s reputation, more so of lawyers whose livelihood hinges upon their reputation. Having considered all these factors, this court opines RM50,000.00 general damages as an appropriate amount to be awarded to the Plaintiff. Exemplary Damages [90] The Plaintiff further asked this court to consider awarding him exemplary damages. It must be borne in mind that the objective of exemplary damages is to punish the Defendant where the Defendant’s wilful act were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. [91] The principle relating to exemplary damages in tort has been expounded in the case of Rookes v Barnard [1964] AC 1129. Lord Devlin in Rookes v Barnard sets out the three categories where exemplary award are appropriate. They are: (i) when power to do so is given by statute: (ii) oppressive, arbitrary or unconstitutional conduct by government servants; and (iii) conduct calculated to result in profit. The principle expounded by Lord Devlin in Rookes v Barnard has been followed by the Courts in Malaysia. [92] In so far as this case is concerned none of these three mentioned categories are applicable. Punitive Damages [93] It is this Court’s view an award of RM10,000.00 is appropriate. [94] This Court further orders, order in terms of – prayer 65 (b), (c) of the statement of claim. Interest at the rate of 5% per anum on the judgment sum from date of filing of writ until full realisation of the judgment sum. As to the issue of costs [95] Having heard brief submissions from both counsels for the Plaintiff and the Defendant, this Court hereby orders the Defendant to pay the Plaintiff RM20,000.00 in costs. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court NCVC 13 of Shah Alam Selangor Darul Ehsan Dated the 14th day of November, 2014. For the Plaintiff - Tetuan Muru & Partners Mr. Murugayah For the Defendant - Tetuan Rathi MG Associates Ms. Rathimalar 42

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