1. ) Bangsar Trade Centre Sdn. Bhd. v 1. ) Ding Mei Siang (WA-22NCC-449-10/2021)

BANGSAR TRADE CENTRE SDN. BHD (Company No.: 859085-P)

TWIN PAVILION DEVELOPMENT SDN. BHD (Company No.: 889470-W) … PLAINTIFFS

DING MEI SIANG (NRIC No.: 790308-08-5346)

LIM KIEN HEN (NRIC No.: 790214-01-5785)

COMMERCEONE PROPERTY SDN. BHD (Company No.: 864919-H) … DEFENDANTS

This is an action by the Plaintiffs alleging that the three Defendants conspired through unlawful means to cause them Page 2 of 20 loss and damage by forcing the sale of their main asset (a property development project), divulging sensitive information to third parties, demoralising staff, removing their software system, issuing letters to banks about ongoing legal proceedings, and initiating oppression proceedings.

The Plaintiffs seek damages on the grounds of unlawful means conspiracy, breach of fiduciary duty, and tortious interference with business. A]

The present action arises from a business relationship that soured between the current controllers of the Plaintiffs, namely Lee Seng Khoon (“LSK”) and Tee Siew Kai (“TSK”), and the 1st Defendant, Ding Mei Siang. The parties had originally ventured together to acquire an abandoned development project known as the Plaza Pantai Project (“the Project”) in 2010, which has now been completed.

There was a falling out between the parties sometime in 2014. This falling out also involved one Jenny Liew Mei Ling (“Jenny”), who was one of the original promoters of the Project. Prior to the falling out, Jenny had sent correspondence to LSK, TSK and regulatory authorities complaining about LSK’s and TSK’s conduct, as well as the conduct of the board of the Plaintiffs at the time, which included the 1st Defendant.

The disagreement between the 1st Defendant, LSK, and TSK stemmed from the 1st Defendant’s concerns over certain shares that were intended to be held in her nominee’s name. She also discovered what she considered to be mismanagement by LSK and TSK. As a result, the 1st Defendant initiated legal action in the High Court under Section 181 of the Companies Act 1965, by way of Originating Summons No. 24NCC-215-06/2015 (“OS 2015”).

On the advice of her solicitors, the 1st Defendant instructed the issuance of four letters to the Plaintiffs’ banks informing them about the suit (“the 4 Letters”).

OS 2015 was later withdrawn without liberty to file afresh, following advice from the 1st Defendant’s solicitors, who recommended the withdrawal on the grounds that she was medically unfit to provide evidence. An appeal was filed against the High Court’s order barring liberty to file afresh, but it was dismissed by the Court of Appeal. Subsequently, leave to appeal to the Federal Court was also refused.

Following the dismissal of the Federal Court’s leave application regarding OS 2015, the 1st Defendant continued to remain on the board of the Plaintiffs. In that capacity, she requested for an inspection of documents of the Plaintiffs and other companies within the group. LSK and TSK’s response was to remove her as a director in all those companies. The 1st Defendant was removed as director of the 2nd Plaintiff on

21.2.2017 and the 2nd Defendant was removed as a director of the 1st Plaintiff on 13.4.2017. Consequently, both the 1st and 2nd Defendants, together with their nominees, were also removed as directors from several companies related to the Project.

In response to the director removals, the 1st Defendant filed a fresh oppression suit against, inter alia, LSK, TSK, Bangsar Trade Centre Sdn Bhd and Twin Pavilion Development Sdn Bhd (the 1st and 2nd Plaintiffs in the present case) under Section 346 of the Companies Act 2016 by way of Originating Summons No. WA-24NCC-369-09/2017 (“OS 2017”), alleging that she had been oppressed. OS 2017 raised substantially the same issues as those in OS 2015, with the addition of a new cause of action relating to the removal of directors. OS 2017 was subsequently converted into a Writ action under Kuala Lumpur High Court Civil Suit No. WA-22NCC-24-01/2021 (“Suit 24”) with CommerceOne Property Sdn Bhd (the 3rd Defendant in the present case) joining as a co-plaintiff.

On 23.6.2022, the High Court in Suit 24 found in favour of Ding Mei Siang and CommerceOne Property Sdn Bhd (the 1st and 3rd Defendants in the present case) and made several distinct findings in the grounds of judgment. The appeal against that decision was subsequently withdrawn in August 2023. Accordingly, the High Court’s findings and grounds of judgment remain unchallenged.

Midway through the hearing of Suit 24, the present action was filed on 7.10.2021. B]

There are three pivotal questions for determination in the present case and they are as follows: i) Did the Defendants undertake an unlawful means conspiracy with the overarching goal of causing loss, harm and damage to the Plaintiff companies? ii) Were the actions of the Defendants actuated by mala fides? iii) Did the 1st and 2nd Defendant, being directors of the Plaintiffs (at that material time), act in a manner constituting a breach of their fiduciary duties and in breach of their duties as constructive trustees for the Plaintiffs? C]

In their Amended Statement of Claim, the Plaintiffs advanced six complaints against the Defendants: i) That the Defendants forced the Plaintiffs to sell their main asset, the Project; Page 6 of 20 ii) That the Defendants divulged sensitive information and documents to Jenny and instigated her to write a series of letters; iii) That the 1st Defendant demoralised staff; iv) That the Defendants removed the software system, MHW System from the Plaintiffs; v) That the Defendants issued or caused the 4 Letters to be issued to the banks informing them of the existence of an action; and vi) That the Defendants initiated OS 2015.

The Plaintiffs pleaded three causes of action: i) unlawful means conspiracy, ii) breach of fiduciary duty (constructive trust), and iii) tort of interference with business and contracts. The Plaintiffs sought damages to be assessed.

The Plaintiffs argued that the Defendants conspired to destabilise the Plaintiffs and force a sale of the Project for the Page 7 of 20 Defendants’ own benefit. They contended that the Defendants’ actions caused loss, harm and damage to the Plaintiffs. D]

The Defendants submitted that the Plaintiffs’ case was a sham and constituted a collateral attack to harass the 1st Defendant. The Defendants argued that: i) Several of the complaints were based on imaginary causes of action supported by imaginary evidence; ii) The Plaintiffs failed to prove any damage, which is an essential element for all the causes of action pleaded; iii) Many of the claims were caught by limitation; iv) Four of the complaints were subject to res judicata, having been determined in Suit 24; and v) There was insufficient evidence to establish conspiracy against the 2nd and 3rd Defendants.

The Defendants contended that unlawful means conspiracy requires the participation of two or more persons to perform acts which are themselves unlawful, and that damage is an essential element which must be proven. Page 8 of 20 E] LACK OF EVIDENCE AGAINST THE 2ND and 3RD

I note that although the Plaintiffs pleaded claim is against all three Defendants, there was no evidence presented in relation to the 2nd Defendant, who is the 1st Defendant’s husband. He was not mentioned in any witness statement or cross-examination.

Insofar as the 3rd Defendant is concerned, the only complaints are the issuance of the 4 Letters and initiation of OS 2015. F]

The Amended Statement of Claim appears to fashion three causes of action: unlawful means conspiracy, breach of fiduciary duty (constructive trust), and tort of interference with business and contracts.

For unlawful means conspiracy, the law requires: i) an agreement between two or more persons; ii) an agreement for the purpose of injuring the plaintiff; iii) acts done in execution of that agreement resulting in damage; and Page 9 of 20 iv) damage, which is an essential element.

As established in Renault SA v. Inokom Corp Sdn Bhd & Anor [2010] 5 MLJ 394, the agreement to injure must crystallise before the alleged unlawful acts are done.

There is no cause of action for breach of constructive trust, as established in Takako Sakao (f) v. Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181. G]

Although the Plaintiffs framed their case largely around an alleged unlawful means conspiracy, they failed to satisfy the constituent elements of this tort.

Firstly, there was no cogent evidence of an agreement between the Defendants, or any two of them, to injure the Plaintiffs. In this regard, the 2nd Defendant was not mentioned in any witness statement or during cross-examination, and the 3rd Defendant’s involvement was limited to acts already adjudicated in Suit 24. Mere familial ties or company association do not, without more, establish concert or agreement.

Secondly, the Plaintiffs did not identify with clarity any unlawful acts carried out in furtherance of such an agreement. The issuance of the 4 Letters and the initiation of OS 2015 were Page 10 of 20 within the 1st Defendant’s legal rights and were previously determined not to constitute breaches of fiduciary duty or tortious conduct. Allegations regarding demoralisation of staff, divulging information to Jenny, or removal of the MHW system were either unsubstantiated or, as found, not unlawful. As held in the case of Bukit Baru Villas Sdn Bhd v. Yeoh Teen Earn & Ors [2017] MLJU 2058: “[54] The plaintiff must furnish the requisite particularity by pleading the circumstances of material facts as to the questions of “who, what, where, when and how" of the alleged fraud and conspiracy in order to enable the defendants to provide a meaningful response. It cannot be emphasised enough that general statements which are vague and containing conclusory allegations do not satisfy the requirements of Order 18 r 7 and r 12. The statement of claim too cannot hide behind purported averments which in truth are nothing but merely a set of formulaic recitation of the ingredients of a cause of action. [55] Pleadings sans particularisation is bad pleading because matters such as fraud and conspiracy cannot be expected to be inferred from statements which are vague and general in nature, more so as the concept of fraud itself is not immutable. Similarly, when alleging fraud and conspiracy against more than one defendants, like presently, the plaintiff must specify, with particularity, each of the fourth and fifth defendant's offending conduct. The defendants cannot be grouped together without identifying which defendant has committed which wrong.” (own emphasis added)

Finally, there was no evidence that the Defendants were actuated by a predominant intention to injure the Plaintiffs. On the contrary, several of the actions were undertaken in pursuit of legitimate legal remedies or corporate governance concerns. Without proof of agreement, unlawful conduct, or intent to injure, the conspiracy claim cannot stand (Renault SA (supra); Industrial Concrete Products Sdn Bhd v. Pilecon Engineering Bhd & Ors [2014] 8 MLJ 374; Kuala Lumpur Golf & Country Club Bhd v. Dato’ Bandar Kuala Lumpur & Ors [2022] MLJU 150. H]

A fundamental flaw in the Plaintiffs’ case is the failure to prove damage. As held in Goh Kiang Heng v. Hj Mohd Ali Bin Hj Abd Majid [1998] 1 MLJ 615, damage is a necessary ingredient for an action founded on tort, and it is only when damage is suffered that all elements necessary to support a claim exist for the cause of action to accrue.

The recent case of Chuah Hee Huat v. Majlis Bandaraya Seberang Perai [2023] 9 MLJ 372 emphasised that in the absence of an order to bifurcate the trial, the onus remains on the plaintiff to prove damages. The Court stated that where a plaintiff seeks to postpone trial for more time to appoint an Page 12 of 20 expert to determine losses, this fortifies the view that damages could not be satisfactorily proven at trial.

In the present case, there was no order for the trial to be bifurcated. The Plaintiffs failed to lead any evidence on quantum of damages or provide any submission regarding damage sustained. This fatal omission renders all the causes of action unsustainable. I] EXAMINATION OF SPECIFIC COMPLAINTS i)

The evidence established that all parties, including LSK, TSK and other shareholders, were prepared to sell the Project due to cash flow problems. Richard Ong Tak Kin (PW1) admitted that the 1st Defendant merely suggested the sale but that he, the other directors and shareholders did not object and in fact facilitated the sale.

Furthermore, any purported forced sale occurred between 2010 and September 2013, which is clearly more than six years before the present action was filed in October 2021. Such claims would be caught by limitation. Page 13 of 20 ii)

The evidence revealed that Jenny, as one of the original promoters of the Project, was entitled to access documents and information relating to the Project. Both TSK and LSK admitted during cross-examination in Suit 24 that Jenny was entitled to access such documents as a promoter.

The Plaintiffs’ own evidence was that there was no evidence that the 1st Defendant had given Jenny any document or information. Furthermore, this issue was raised and determined in Suit 24, where the High Court ruled that there was nothing wrong in sharing information with Jenny as she was entitled to such information.

The present action also arose from an email dated 9.9.2014, making it time-barred as it was filed more than six years later. iii) Staff Demoralisation

The evidence on this complaint was entirely lacking. No specific instances of demoralisation were proven, and the allegation lacks any credible evidential foundation. iv) Removal of MHW System

The evidence established that the MHW system was never the property of the Plaintiffs and its removal caused only Page 14 of 20 inconvenience rather than wrongful conduct. This issue is also caught by limitation. v)

The evidence revealed that the 4 Letters did not result in any disruption or termination of facilities by the banks.

No bank withdrew financing following the issuance of the letters. In fact, the Project had already experienced delays and was facing liquidated damages claims since 2014, prior to the first letter being sent on 10.7.2015. vi) Initiation of OS 2015

As found in the grounds of judgment in Suit 24, it was within the 1st Defendant’s legal rights to commence OS 2015. The High Court in Suit 24 ruled that any allegations of breach of fiduciary duties for initiating OS 2015 were “bereft of merits” and “merely an afterthought”. vii) Res Judicata

Four of the six complaints were previously raised and determined in Suit 24. The doctrine of res judicata, as established in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, bars the relitigation of these issues between the same parties.

The issues of divulging information to Jenny, removal of the MHW system, issuance of the 4 Letters, and initiation of OS 2015 were all determined in Suit 24, where the High Court made specific findings that there was no wrongdoing on the 1st Defendant’s part.

In this regard, many of the issues in the instant case, including the Plaintiffs’ complaints, were addressed in Suit 24, and findings were made on those matters. The appeal against the High Court’s decision in Suit 24 was withdrawn, rendering its decision and findings binding. The Plaintiffs cannot be permitted to re-litigate these same issues or to invite this Court to make a separate finding.

In this regard the Federal Court in Joseph Paulus Lantip & Ors v. Unilever Plc [2012] 7 CLJ 693 held as follows: “[30] Thus, for the doctrine of res judicata to apply, the same issue must have been raised and decided in an earlier proceeding or action in which the parties are represented. And for that reason, it is not open for the same issue to be litigated afresh between the same parties. This doctrine is based on the public policy that there must be finality and conclusiveness in judicial decisions and the right of the individual from being vexed by multiplicity of suits at the instance of an opponent. In Satyadhyan Ghosal and others v. Smt. Deorajin Debi And Another 1960 AIR SC 941, the Indian Supreme Court stated the principle as follows:

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.” [31] In Henderson v. Henderson [1843] 3 Hare 100, 67 ER 313, Vigram VC expressed the view that “The plea of res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligent, might have brought forward at the time.” This statement came to be known as the rule in Henderson v. Henderson.” (own emphasis added) J] CONCLUSION

When the Plaintiffs’ case is examined in its entirety, it becomes clear that it is fundamentally flawed.

The Plaintiffs have failed to establish the essential elements of their causes of action, particularly the crucial element of damage.

The evidence does not support the allegations of conspiracy, breach of fiduciary duty, or interference with business and contracts. Much of the Plaintiffs’ case is based on stale complaints, some of which are caught by limitation, and others which are barred by res judicata.

The timing of this suit, filed midway through Suit 24 where the 1st Defendant was the successful plaintiff, strongly suggests that this action was brought as a retaliatory measure rather than a genuine claim for relief.

Even assuming, for the sake of argument, that some of the Defendants’ actions could be construed as wrongful, the Plaintiffs’ claim would nevertheless fail due to their inability to prove actual damage.

The authorities are clear on this point, as established in Goh Kiang Heng (supra) and Chuah Hee Huat (supra): damage is not only an essential element of the torts pleaded, but also a prerequisite for the accrual of the cause of action itself. In the absence of any quantifiable loss or injury, the Plaintiffs’ case is unsustainable in law.

For the reasons stated above, the Plaintiffs’ claim is dismissed with costs. Dated this 4th day of August, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA COUNSEL FOR THE PLAINTIFFS : Gavin Jayapal (S. Kanaga Sundran, Kausalyaa Munesbaran and Sivanandini Sreegantham together with him) Messrs Gavin Jayapal 25-5, Blok H, Jalan PJU 1/37, Dataran Prima, 47301 Petaling Jaya, Selangor Tel: 03-78872173 Email: gavin@gavinjayapal.com Page 19 of 20 COUNSEL FOR THE DEFENDANTS : Tharminder Singh (Joycelyn Goh together with him) Messrs Izral Partnership Tingkat 2, Wisma Hamzah-KH, No. 1 Leboh Ampang, 50100 Kuala Lumpur Tel: 03-20781139 Email: clerk@izralpartnership.com LEGISLATION / RULES CITED Companies Act 1965 ▪ Section 181 Companies Act 2016 ▪ Section 346

Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995]

Bukit Baru Villas Sdn Bhd v. Yeoh Teen Earn & Ors [2017] MLJU 2058

Chuah Hee Huat v. Majlis Bandaraya Seberang Perai [2023] 9 MLJ 372 4. Goh Kiang Heng v. Hj Mohd Ali Bin Hj Abd Majid [1998] 1 MLJ 615

Industrial Concrete Products Sdn Bhd v. Pilecon Engineering

Joseph Paulus Lantip & Ors v. Unilever Plc [2012] 7 CLJ 693

Kuala Lumpur Golf & Country Club Bhd v. Dato’ Bandar Kuala

Renault SA v. Inokom Corp Sdn Bhd & Anor [2010] 5 MLJ 394

Takako Sakao (f) v. Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181