1. ) Datin Lai Leong Peng v 1. ) Dato Javern LIM Chong Hee (WA-22NCvC-30-01/2023)

DATIN LAI LEONG PENG (No. K/P: 631206-05-5236)

KAITO GIN SDN BHD (No. Syarikat: 201801020190 [1282209-D])

SIERRA CHARM SDN BHD (No. Syarikat: 325067-M) …PLAINTIF-PLAINTIF

DATO JAVERN LIM CHONG HEE (No. K/P: 700130-01-5305)

EDWARD OOI TEE HEE (No. K/P: 700408-05-5417)

LEU KOK WAI (No. K/P: 771006-05-5447)

PACIFIC TRUSTEES BERHAD (No. Syarikat: 317001-A)

SCS GLOBAL ADVISORY (M) SDN BHD (No. Syarikat: 864010-V) …DEFENDAN-DEFENDAN 29/10/2024 22:42:59 WA-22NCvC-30-01/2023 Kand. 255 DAN KAITO GIN HOLDINGS BHD (No. Syarikat: 1310516-H) ...PENCELAH YANG DICADANGKAN GROUNDS OF JUDGMENT Introduction [1] The Amended Statement of Claim filed by the Plaintiffs in this case on 16th February 2023 is a lengthy one. In the sixty-four paragraphs, the Plaintiffs pleaded, inter alia, fraudulent misrepresentation, conspiracy to defraud and breach of fiduciary duties as their causes of action against the five Defendants. Thus, when a company by the name of Kaito Gin Holdings Berhad suddenly filed an application for leave to intervene (Enclosure 187) in March this year to be added as a co-plaintiff, it was met with vehement objection by all the Defendants. [2] Whilst it is permissible for a party who has a legal interest in the outcome of a pending action in court to intervene and be named as a party in the proceedings, should this Court allow the holding company of one of the plaintiffs in this civil suit to intervene and be named as a co-plaintiff more than a year after this civil suit was filed? [3] The 2nd Plaintiff Kaito Gin Sdn Bhd is a wholly-owned subsidiary of the Proposed Intervener Kaito Gin Holdings Berhad. In other words, the Proposed Intervener is the holding company of the 2nd Plaintiff. The 1st Plaintiff and her daughter, one Lim Pei Pei, are directors of both the 2nd and 3rd Plaintiffs. Kaito Gin Holdings Berhad had filed its application (Enclosure 187) on 7th March 2024 to intervene in this civil suit that has been pending since January 2023, and which has been fixed for trial in November this year. It is worth mentioning that the Proposed Intervener’s said application was supported by an affidavit affirmed by the 1st Plaintiff’s daughter, the said Miss Lim Pei Pei, albeit in her capacity as a director of the Proposed Intervener. [4] After hearing learned counsel for the Proposed Intervener and respective learned counsel for the Plaintiffs and the Defendants, I decided to dismiss the said application (Enclosure 187), with costs to be paid by the Proposed Intervener to each Defendant. My reasons are as follows. Background Facts [5] As highlighted above, the Plaintiffs’ Amended Statement of Claim pleaded, inter alia, fraudulent misrepresentation, conspiracy to defraud and breach of fiduciary duties as their causes of action against the five Defendants. [6] As this civil suit has been fixed for trial in November this year, I shall not touch on the merits of the pleadings. It should suffice, for the purpose of dealing with the Proposed Intervener’s said application, for me to sum up that the reliefs sought in the Plaintiffs’ prayers are for:

General Damages for fraudulent misrepresentation, conspiracy to defraud and breach of fiduciary duties;

(ii) declarations that a Letter of Undertaking signed by the 1st Plaintiff in favour of the 4th Defendant is invalid, illegal and unenforceable against her; and

(iii) two registered land charges (in favour of the 4th Defendant as the chargee) on two plots of land to be declared invalid. [7] The salient facts pleaded in the Plaintiffs’ Amended Statement of Claim are that the 1st Defendant approached the 1st Plaintiff and represented that he was able to obtain financing for development of land. The 1st Plaintiff pleaded that the 1st Defendant introduced her to the 2nd Defendant, and subsequently they advised her to purchase 8 plots of land in Bangsar, Kuala Lumpur (“the Development Land”) at a price of RM21million for development purpose. The 2nd Plaintiff was incorporated for the purpose of purchasing the 8 plots of development land. The 1st Plaintiff further pleaded that the 1st Defendant and/or 2nd Defendant advised her that about RM50million to RM60million would be required to finance the purchase of the Development Land and its future development. [8] The Plaintiffs’ Amended Statement of Claim went on to plead that the 3rd Defendant was roped in by the 1st Defendant and/or 2nd Defendant as a consultant to assist in obtaining the financing for the Development Land. [9] The 3rd Defendant then approached the 4th Defendant to quote for its services to act as a “security trustee” for the issuance of “Redeemable Preference Shares” for the purpose of raising money to finance the purchase and development of the Development Land. The exact plea regarding the involvement of the 4th Defendant is as follows: [10] The narrative gets even more complicated with the following plea in the Plaintiff’s Amended Statement of Claim about the 5th Defendant being brought into the picture: [11] The further explanation pleaded by the Plaintiffs that referred to the incorporation of the Proposed Intervener, were as follows: The Proposed Intervener’s Ground for seeking leave to intervene [12] The Proposed Intervener’s supporting affidavit averred as follows: [13] The prayers in the Proposed Intervener’s application was for leave to intervene and be made a co-plaintiff, as follows: [14] Besides averring that its consolidation application was dismissed, the Proposed Intervener stated its intention to intervene to seek remedies but without any details, as could be seen at para 15 of the affidavit: The Defendants’ Objections to the Proposed Intervener’s Application [15] All the Defendants objected vehemently to the Proposed Intervener’s application. [16] As I found merits in most of the Defendants’ objections, it is not necessary for me to regurgitate them here. Instead, I shall refer to them below in my reasons for deciding to dismiss the Proposed Intervener’s application to be made a co-plaintiff. Analysis of the Facts and Law [17] The law is trite on applications to intervene in pending civil suits. Procedurally, such applications in Malaysia are made pursuant to Order 15 rule 6 of the Rules of Court 2012. [18] Half a century ago, the Privy Council had occasion in Pegang Mining Co Ltd v. Choong Sam & Ors [1969] 2 MLJ 52 to set out the fundamental principle for intervention by a stranger to a suit – that is still applicable till today. The relevant passage is as follows: “It has been sometimes said as in Moser v Marsden [1892] 1 Ch 487 and in In re IG Farbenindustrie AG [1944] Ch 41 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. … 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?” (emphasis added) [19] In ARAB MALAYSIAN MERCHANT BANK BERHAD V JAMALUDIN BIN DATO MOHD JARJIS [1991] 2 MLJ 27, the Supreme Court appeared to widen the scope to cover commercial interest as well as legal interest. “The ambit of this class has been materially widened by the decision of the UK Court of Appeal in Gurtner v Circuit, the effect of which is to include any case in which the intervener is directly affected not only in his legal rights but in his pocket.” [20] However, in a more recent decision of the Federal Court in Chong Fook Sin v Amanah Raya Bhd (as the administrator for the estate of Raja Nong Chik bin Raja Ishak, deceased) & Ors [2011] 1 MLJ 721, the Federal Court regarded it as mandatory for “legal interest” to be proven. The following passages from the Federal Court’s judgment are instructive:- “[23] The law in respect of evaluating intervener applications at first instance had been laid down by the Privy Council in Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52 (PC). [24] The decision in Pegang Mining was adopted by the then Supreme Court in Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63; [1992] 2 CLJ 1153; [1992] 1 CLJ 344 (Rep). [25] In Tohtonku Sdn Bhd the then Supreme Court had this to say: It is settled law, on the authorities, 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 alone would be affected: per Lord Diplock in Pegang Mining Co Ltd v Choong Sam & Ors at pp 55–56. [39] Having heard submissions before us by both parties and having referred to the authorities cited for and against, we must say, with utmost respect, that the COA erred for the following reasons:

The interveners did not have the requisite 'legal interest' as the subject matter of the appeal before the COA was the consequence of non-compliance with the unless order on the part of ARB. This was a matter in which the interveners were not involved at all.

The grounds advanced by the interveners in support of their application ie to ensure due determination of all matters in controversy and to lend assistance do not in any way go to establishing a 'legal interest'. The interveners were circumscribed by the grounds on which they moved the COA.” [21] Order 15 rule 6(3) Rules of Court 2012 uses the word “interest” without specifying whether it is “legal interest” and/or “commercial interest”. I note that rule 6(2) and 6(3) are widely drafted to set out the requirements for a party to be granted leave to intervene. The reason is probably to give the courts more latitude to apply the rule in cases where justice could be done only if the applicant is allowed to intervene and be made a party in pending court proceedings. The whole Order 15 rule 6(2) is set out below: “Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application-

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;

order any of the following persons to be added as a party, namely-

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.” [22] Since the law on this subject is clear, I shall move on to discuss the salient facts relevant to the Proposed Intervener’s application, as follows. [23] The company search results issued by the Companies Commission of Malaysia, as exhibited in the 4th Defendant’s affidavit, revealed that the Proposed Intervener had two directors, namely the 1st Plaintiff and her daughter Lim Pei Pei, since January 2019. [24] The documents in which the Proposed Intervener was a party were a Share Subscription Agreement and a Supplemental Share Subscription Agreement. These were exhibited in the supporting affidavit of the Proposed Intervener. Both agreements show that the 1st Plaintiff signed them in her capacity as a director of the Proposed Intervener, together with her daughter Lim Pei Pei. A screenshot of the signing page from the said affidavit (as shown below) would cast away all doubts, if any, about the 1st Plaintiff’s role in the Proposed Intervener company. [25] There was no doubt that a large portion of the money, raised by using the Share Subscription Agreement and Supplemental Share Subscription Agreement entered into between the Proposed Intervener and the 4th Defendant, was used to pay for the Development Land. In the Amended Statement of Claim, there was no prayer to cancel or invalidate those agreements. Neither was there any averment in the Proposed Intervener’s affidavit of it having any cause of action to invalidate those agreements. [26] In most cases, a proposed intervener is a party who learnt about a civil suit pending in court which was filed without his knowledge. Fearing that the decision of the court could affect his legal interest, he applies for leave to intervene, to be made a co-defendant. The words “to intervene” suggests that action is to be taken by an outsider. However, this is not the situation herein. The Proposed Intervener here is seeking ‘to intervene’ to be named as a co-plaintiff in this civil suit. No draft Statement of Claim was exhibited to show what its claim and prayers would be against the existing 5 defendants. Though it is not mandatory under Order 15 rule 6 for a proposed intervener to exhibit its draft pleading in his supporting affidavit, the existing plaintiffs and the defendants are surely entitled to know the details of his claim – especially when the proposed intervener is praying to be a co-plaintiff. [27] As unveiled by the company search results issued by the Companies Commission of Malaysia (exhibited in the 4th Defendant’s affidavit), the Proposed Intervener is a company wholly controlled by the 1st Plaintiff and her daughter Lim Pei Pei. It is not a party who just found out about this civil suit a year after it was filed and had to scramble to intervene, to be named as a co-defendant to protect his interests. The Proposed Intervener, which is seeking to be named as a co-plaintiff, could well have been named as a co-plaintiff right from the beginning by the 1st Plaintiff. For reasons best known to her, that was not done. [28] I found that the affidavit affirmed by the 1st Plaintiff’s daughter Lim Pei Pei in support of the Proposed Intervener’s application failed to satisfy Order 15 rule 6(3) to justify leave to be added as a co-plaintiff. Her averments about the Proposed Intervener being sued by the 4th Defendant in Civil Suit No. WA-22NCvC-48-02/2023 (“Suit No.48”) and having filed a Counterclaim in Suit No.48 but failed to obtain an order for Suit No.48 to be consolidated with this civil suit (or to be fixed for trial together), in fact militates against this court allowing the Proposed Intervener to intervene. The earlier decision by this court (a different judge) in Suit No.48 to dismiss the consolidation application amounted to a finding that there was no common question of law or fact arising in both civil suits and that the rights to relief claimed therein are not in respect of or arise out of the same transaction or series of transactions – to paraphrase Order 4 rule 1 Rules of Court 2012. [29] Though the keywords in Order 15 rule 6(2)(b)(ii) are not identical with that of Order 4 rule 1, there is substantive similarity in that rule 6(2)(b)(ii) requires the existence of “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.” [30] It is an undisputed fact that the prayers by the existing Plaintiffs – as mentioned above – do not seek to invalidate the Share Subscription Agreement and Supplemental Share Subscription Agreement entered into between the Proposed Intervener and the 4th Defendant. There was no prayer in the Amended Statement of Claim to invalidate those agreements - that would affect the Proposed Intervener. [31] The Proposed Intervener has no legal interest in the Letter of Undertaking signed by the 1st Plaintiff. Neither has it any legal interest in the other prayers sought by the Plaintiffs. It also did not show what was the question or issue that is to be determined as between it and the 5 defendants in this civil suit. As mentioned above, the dispute between the Proposed Interveners and the 4th Defendant belongs to Suit No.48 – which another High Court judge had ruled ought to be heard separately from this civil suit. That ruling made in Suit No.48 was final, since there was no appeal filed by the Proposed Intervener. I ought to take cognisance of it here, and not to open a back door for a consolidation application that had been heard and dismissed earlier by another judge. [32] Though the Proposed Intervener was a ‘vehicle’ incorporated for the purpose of issuing Redeemable Preference Shares to raise money for the 1st Plaintiff’s business purpose, I found that the existing Amended Statement of Claim is sufficient for this civil suit to proceed to trial as it is, leaving the Proposed Intervener free to pursue its counterclaim in Suit No.48 against the 4th Defendant. Conclusion [33] In conclusion, I found that the Proposed Intervener’s affidavit had failed to comply with the requirements of Order 15 rule 6(3), that reads as follows: “(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.” [34] If the Proposed Intervener’s presence as a co-plaintiff in this civil suit is really so critical, there must be some cogent explanation as to why the Proposed Intervener – which was all along in the control of the 1st Plaintiff – was not jointly named as a co-plaintiff when this civil suit was filed. Since there was no explanation proffered, I was constrained to reiterate that there was no ground for this court’s discretion to be exercised in favour of the Proposed Intervener’s application to be made a co-plaintiff. Counsel for the Plaintiffs: Mahathir Abdullah SOLICITORS FOR THE PLAINTIFFS: MESSRS MAHATHIR Advocates & Solicitors 19A-21-3A, Level 21, Business Suites, Wisma UOA Centre, Jalan Pinang, 50450 KUALA LUMPUR. Counsel for the 1st Defendant: Richard Tee Szee Ping (Karen Tan Ching Shi with Him) SOLICITORS FOR THE 1st DEFENDANT: MESSRS RICHARD TEE & CHIN Advocates & Solicitors Suite 5-2, Tingkat 2, Jalan 5/76B, Desa Pandan, 55100 KUALA LUMPUR Counsel for the 2nd Defendant: Keong Ming Wai (Kwan Ru En With Him) SOLICITORS FOR THE 2nd DEFENDANT: MESSRS MING & PARTNERS Advocates & Solicitors S-7-12, Wisma YNH Kiara 163, No. 8, Jalan Kiara, Mont Kiara 50480 KUALA LUMPUR. Counsel for the 3rd Defendant: Danny Hu Shi En SOLICITORS FOR THE 3rd DEFENDANT: MESSRS TEH & LEE Advocates & Solicitors A-3-3 & A-3-4, Northpoint Offices, Mid valley City, No. 1, Medan Syed Putra Utara, KUALA LUMPUR. Counsel for the 4th Defendant: Yeap Kim Hock SOLICITORS FOR THE 4TH DEFENDANT: MESSRS PAUL CHEAH ASSOCIATES, Advocates & Solicitors Unit A-3A-8, 4th Floor Megan Avenue 1, No.189, Jalan Tun Razak, 50400 KUALA LUMPUR. Counsel for the 5th Defendant: Yeo Kong Howa SOLICITORS FOR THE 5TH DEFENDANT: MESSRS AZAM - MALEK & SOH Advocates & Solicitors No. 17, Jalan Miri, Off Jalan Raja Bot, 41400 KLANG, SELANGOR. Counsel for the Proposed Intervener: Toh Chia Hua (Goh Chin How With Him) SOLICITORS FOR THE PROPOSED INTERVENER: MESSRS WONG NEOH & PARTNERS. Advocates & Solicitors 648, Block A, Kelana Centre Point, No. 3, Jalan SS 7/19, Kelana Jaya, 47301 PETALING JAYA, SELANGOR CASES REFERRED:

Pegang Mining Co Ltd v. Choong Sam & Ors [1969] 2 MLJ 52.

Arab Malaysian Merchant Bank Berhad V Jamaludin Bin Dato Mohd Jarjis [1991] 2 MLJ 27.

Chong Fook Sin v Amanah Raya Bhd (as the administrator for the estate of Raja Nong Chik bin Raja Ishak, deceased) & Ors [2011] 1 MLJ 721.

Order 15 rule 6 of the Rules of Court 2012.

Order 15 rule 6(2) of the Rules of Court 2012.

Order 15 rule 6(3) Rules of Court 2012.

Order 4 rule 1 Rules of Court 2012.