Executive Jets Asia Inc. v Medex Aero Pty Ltd (JA-22NCvC-96-07/2020)

EXECUTIVE JETS ASIA INC. [NO SYARIKAT : LL12088]

EXECUTIVE JETS ASIA SDN BHD [NO SYARIKAT : 906163-P] …PLAINTIFFS MEDEX AERO PTY LTD [AUSTRALIAN COMPANY NUMBER : 625719191] [IN THE MAIN CLAIM] …DEFENDANT 09/06/2026 13:18:47 JA-22NCvC-96-07/2020 Kand. 154 S/N SgnYYtYryU6qbuEZHjmcAg MEDEX AERO PTY LTD [AUSTRALIAN COMPANY NUMBER : 625719191] …PLAINTIFF

EXECUTIVE JETS ASIA INC. [COMPANY NO. : LL 12088]

EXECUTIVE JETS ASIA SDN BHD [COMPANY NO. : 906163-P]

PRITHPAL SINGH SANDU [SINGAPORE PASSPORT NUMBER : E5745101E] [IN THE COUNTERCLAIM] …DEFENDANTS GROUNDS OF JUDGMENT

This is the trial of an aviation services dispute that travelled almost six years from cause of action to closing submissions. The Plaintiffs sue the Defendant on an aircraft charter, crew, maintenance and S/N SgnYYtYryU6qbuEZHjmcAg insurance arrangement (“the ACMI Agreement”) dated 8 April 2019. The Defendant counterclaims against both Plaintiffs and against the 3rd Defendant in the counterclaim, Mr Prithpal Singh Sandu, for damages said to flow principally from a misrepresentation about where the 1st Plaintiff was incorporated.

I had the benefit of a full trial spread over five hearing days, 17 November 2025, 18 November 2025, 7 January 2026, 23 February 2026 and 24 February 2026 with five witnesses, voluminous bundles of documents and comprehensive written submissions and written submissions in reply from each of the three contesting interests. I now deliver my decision, and its reasons.

The 1st Plaintiff (and 1st Defendant in the counterclaim), Executive Jets Asia Inc (“EJA Inc”), was a company incorporated in Labuan, Malaysia under the Labuan Companies Act 1990. A material procedural development occurred in the case management on 13 October 2025. Counsel for the Plaintiffs informed the Court that, upon their search with the Labuan Financial Services Authority, the 1st Plaintiff (Executive Jets Asia Inc) was no longer in existence or non-existent. On that representation, this trial proceeded solely on behalf of the 2nd Plaintiff.

The 2nd Plaintiff (and 2nd Defendant in the counterclaim), Executive Jets Asia Sdn Bhd (“EJASB”), is a Malaysian company incorporated under the Companies Act 1965 with its principal place of business at Senai International Airport. EJASB carries on business as a provider of aviation-related services, including flight operations, fuelling, hangaring, ground handling and aircraft maintenance and repair.

The Defendant (and Plaintiff in the counterclaim), Medex Aero Pty Ltd (“Medex”), is an Australian proprietary company incorporated in New South Wales.

The 3rd Defendant in the counterclaim, Prithpal Singh Sandu (“Prithpal”), is a Singaporean national. He was the Chief Executive Officer of EJASB from 2004 to 27 October 2020 and the managing director of EJA Inc at the material time. The original action

The Plaintiffs sue Medex on the ACMI Agreement of 8 April 2019. Under that agreement, Medex was to dedicate a Westwind II aircraft (registration VH-ZYH) on standby for the use of EJA Inc as the provider of charter flight services for emergency medical evacuation and repatriation. The aircraft was to be based and operated from Senai. The agreed minimum guaranteed utilisation was 35 hours per calendar month, billed at USD2,000 per hour up to that ceiling and S/N SgnYYtYryU6qbuEZHjmcAg USD1,750.00 per hour thereafter. EJA Inc paid Medex a USD35,000 refundable deposit on 24 April 2019.

The principal complaint pleaded in the Statement of Claim is that, on 24 February 2020, EJA received an internal complaint that one of Medex’s pilots, Captain Peter Stephen Ireland, had reported to duty under the influence of alcohol and had behaved aggressively towards the operations crew. EJA reported the matter to the Australian Civil Aviation Safety Authority (“CASA”), the Singapore CAAS and the aircraft owner Oberon Aviation Services Pty Ltd. EJA also requested a change of crew. When Medex did not respond to that request and after the aircraft failed to return to Senai from a scheduled maintenance at Seletar Airport, EJA Inc, by letter dated 12 March 2020, terminated the ACMI Agreement for fundamental breach. EJA Inc claims damages, return of the deposit balance and interest. EJASB, as a separate plaintiff, claims USD3,800.76, being the unpaid sum on a single invoice MRO_0355 dated 27 February 2020 for ground services rendered to the aircraft. The counterclaim

Medex’s counterclaim, in its amended form, pleads three substantive cases against the three Defendants in the counterclaim. The first is that the ACMI Agreement was procured by a fraudulent misrepresentation made by Prithpal that EJA Inc was a Singapore-incorporated entity, when it was in fact a Labuan-incorporated entity (and that, on Medex’s case, the entity that actually paid Medex was a S/N SgnYYtYryU6qbuEZHjmcAg third Executive Jets Asia Inc - a separate British Virgin Islands company). The second is that EJASB and Prithpal are the alter egos of EJA Inc, such that the corporate veil should be pierced and joint and several liability imposed. The third is that, during the contract period, EJA wrongfully diverted 109.28 hours of flying time to “illegal and unlawful operations” using two other aircraft (RP-C5505 and N320LV), so denying Medex USD157,797.50 of contractual revenue.

There are at least 5 pleaded particulars of fraud against Prithpal at paragraph 38 of the Amended Counterclaim, as follows –

that Prithpal caused EJASB to write to the Civil Aviation Authority of Singapore stating that it no longer supported VH-ZYH operations and was not Medex’s agent;

that Prithpal stated he was Director of EJA Inc and EJASB;

that he asserted the existence of a Singapore-incorporated company called Executive Jets Asia Inc;

that a “false entity” acted as agent to CAAS through the ATLAS system to procure the contract permits; and

the diverted flights particular already noted.

The total sum claimed in the counterclaim is USD2,177,042.56 against EJA Inc and Prithpal jointly and severally, with EJASB also pleaded as jointly and severally liable on the alter ego ground. S/N SgnYYtYryU6qbuEZHjmcAg The 2nd Plaintiff’s defence to counterclaim

EJASB’s defence to the counterclaim is, in essence, threefold. First, EJASB was not a party to the ACMI Agreement; that contract was between EJA Inc and Medex. Second, EJASB and EJA Inc are separate legal entities. Third, neither the pleadings nor the evidence supports any finding that EJASB committed actual or equitable fraud, or that EJASB is the alter ego of any other defendant in the counterclaim such as to justify the piercing of the corporate veil. The 3rd Defendant’s separate defence to counterclaim

Prithpal’s separate defence takes essentially the same line. Prithpal acted only in his capacity as Director of EJA Inc; there was no contract between him personally and Medex. The misdescription of EJA Inc’s place of incorporation as Singapore was a clerical drafting error caused by the late substitution of EJA Inc for the originally contemplated EJA Charters Pte Ltd (a Singapore company) when the contracting structure was restructured. The place of incorporation was not a material or fundamental term and had no bearing on performance. Medex carried out its own pre-contract due diligence, including visiting EJA’s Singapore office and the Senai facilities and entered the ACMI Agreement on its own commercial judgment. The fraud allegation is, on Prithpal’s case, an afterthought. S/N SgnYYtYryU6qbuEZHjmcAg

A total of five witnesses gave evidence –

PW1, Mohamed Yunos Bin Mohamed Ishak. He is the Director of Myjet Aero Engineering Sdn Bhd, and gave evidence for the

DW1, Peter Stephen Ireland. He is the Operations Manager of Medex. He gave evidence for Medex on Day 1 (evening session), Day 2 (full day) and Day 3;

DW2, Mark Alexander Haslam. He is a retired Senior Investigator of CASA. Called by Medex and gave evidence remotely from Cairns, Australia, for Medex on Day 4 (23 February 2026);

DW3 - Yugathevarao. He is the former Senior Flight Operations Officer of EJASB. He gave evidence for Prithpal on Day 4.

DW4 - Prithpal Singh Sandu. He is the 3rd Defendant in the counterclaim. He gave evidence on Days 4 and 5 (24 February 2026).

Ten bundles were produced and marked at trial –

IP (Bundle of Pleadings, Enclosure 96);

A (Common Bundle, Enclosures 93 and 114);

B (Plaintiff’s Additional Bundle, Enclosure 108);

B1 (Additional Bundle (3), Enclosures 110 and 117);

C (3rd Defendant’s Bundle, Enclosure 100);

D (Plaintiff in CC’s Additional Bundle, Enclosures 101 and 115);

E (Plaintiff in CC’s Additional Bundle (2), Enclosures 107 and 116); and

ID-1 (3rd Defendant’s Additional Bundle, Enclosure 129, with section 90A certificate at Enclosure 130).

The admissibility of ID-1 was disputed. On Day 4, on the application of the 3rd Defendant, I marked Enclosure 129 as ID-1 and reserved my ruling on admissibility to the written submissions stage. I deal with that ruling in its proper place below.

I record that, with the consent of all parties, evidence was given partly remotely by video link. I am satisfied that the conditions for taking evidence remotely under the Rules of Court and the Chief Justice Practice Direction No. 2 Year 2025 on The Application of Remote S/N SgnYYtYryU6qbuEZHjmcAg Communication Technology For Civil Case Proceedings For The Court In Malaysia were met and that no party was prejudiced by the manner of the witnesses’ attendance.

Two issues were identified for trial in the Issues to be Tried (Enclosure 105) filed by the 2nd Plaintiff on 29 October 2025. They frame this judgment –

In the original action : whether the 2nd Plaintiff is entitled to its claim of USD3,800.76 against the Defendant; and

In the counterclaim : whether the Defendant is entitled to its counterclaim against the 2nd Defendant in the counterclaim.

The burden of proof in a civil action lies on the party who asserts the affirmative of an issue (see sections 101, 102 and 103 of the Evidence Act 1950 [Act 56]. In the original action, that burden lies on EJASB to establish, on the balance of probabilities, that it is entitled to USD3,800.76 from Medex. In the counterclaim, the burden lies on Medex to establish, on the balance of probabilities, that it is entitled to its counterclaim against EJASB.

The standard of proof in a civil claim is the balance of probabilities. That is so even where what is alleged is fraud or fraudulent misrepresentation, as is the case in the counterclaim. The Federal Court so held in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, restating the law and overruling earlier authorities to the contrary. There is no third or higher standard for civil fraud. What the seriousness of the allegation does require is cogent evidence sufficient to satisfy the trier of fact, on the balance of probabilities, that the allegation is more likely than not to be true.

Based on the above background, my analysis and findings on the issues are as follows. Issue 1 : Whether EJASB is entitled to its claim of USD3,800.76 The pleaded claim

EJASB’s pleaded claim is for the sum of USD3,800.76 only. It is for ground services rendered to the aircraft VH-ZYH, particularised by Invoice No. : MRO_0355 dated 27 February 2020. The invoice and the underlying Service Request Authorisation dated 26 February 2020 were placed in evidence at Tab E of Enclosure 101 and at page 1 of Enclosure 108 respectively. S/N SgnYYtYryU6qbuEZHjmcAg The evidence

PW1 (Yunos), the Director of EJASB, identified the Service Request Authorisation and Invoice MRO_0355 in his witness statement (Enclosure 109). He confirmed that EJASB rendered the services and issued the invoice, that the invoice was duly delivered to Medex and that no payment has been received. PW1 was cross-examined by counsel for Medex and counsel for the 3rd Defendant, but his evidence on the existence and rendering of the services and on the issue and non-payment of the invoice, was not effectively shaken.

DW1 (Peter Stephen Ireland), Medex’s own Operations Manager, made significant admissions under cross-examination by counsel for EJASB. He admitted that the invoice in question was issued in respect of the aircraft, that Medex had accepted the services rendered by EJASB, and that the invoice has not been paid. His sole reason for non-payment was that Medex “has a larger counterclaim”. DW4 (Prithpal), as the then-Chief Executive Officer of EJASB, also confirmed that the invoice had been delivered to Medex. Medex’s defence on the original action

Medex did not, in any meaningful sense, defend the merits of EJASB’s USD3,800.76 claim at trial. In its main written submissions (Enclosure 136), Medex did not advance any argument as to why the USD3,800.76 invoice should not be paid. It is to be noted that S/N SgnYYtYryU6qbuEZHjmcAg paragraph 13.0 of Enclosure 136 prays only that EJASB’s claim be dismissed. It offers no reasoned basis. EJASB’s reply submissions (Enclosure 142) accurately point out that Medex “did not advance a single argument as to why the 2nd Plaintiff’s claim for USD3,800.76… should be dismissed”.

In the written submission and at trial, the only basis advanced for non-payment was that Medex had a larger counterclaim against the Plaintiffs collectively. In my judgment, that is not a defence to a simple claim for unpaid services rendered. A counterclaim does not, by itself, extinguish a debt. At its highest, it might support a claim for set-off if the counterclaim is found in Medex’s favour and is for a liquidated sum or an ascertainable cross-claim. As I shall come to, the counterclaim against EJASB fails. Even if Medex’s counterclaim were to succeed against any other party, which it does not, against EJASB, set-off does not arise as between EJASB and Medex on these pleadings.

On the evidence I am satisfied, on a balance of probabilities, that –

EJASB rendered the services particularised in Invoice No. : MRO_0355;

Medex received and benefitted from those services;

The invoice in the agreed sum of USD3,800.76 was duly issued and delivered; and

Medex has not paid that sum, nor has it advanced any substantive defence to it.

Accordingly, I hold that EJASB has discharged its burden of proof on its claim. I therefore answer the first issue in the affirmative : EJASB is entitled to its claim of USD3,800.76 against Medex, with interest and costs. Issue 2 : Whether Medex is entitled to its counterclaim against

I now turn to the counterclaim. The issue framed for trial is narrow : whether the counterclaim succeeds against EJASB. Medex’s pleaded routes to fixing liability on EJASB are essentially three –

breach of contract;

fraudulent misrepresentation; and

the alter ego doctrine. I deal with each. S/N SgnYYtYryU6qbuEZHjmcAg Privity of contract

It is common ground that the ACMI Agreement of 8 April 2019 was made between EJA Inc and Medex. EJASB was not a party to it. That is the express finding I am invited to make on the face of the contract itself, which is at Tab L of Bundle A.

It follows from the principle of privity of contract that EJASB cannot be sued on the ACMI Agreement and is not liable for any breach of it. The Federal Court has affirmed this principle in Suwiri Sdn Bhd v Government of the State of Sabah [2008] 1 MLJ 743. I respectfully adopt the well-known statement of the law in that case, i.e a contract cannot, as a general rule, confer rights or impose obligations on strangers to it.

In its Reply submissions (Enclosure 142), EJASB observes that Medex’s own main submissions appear to confine the counterclaim to the 1st and 3rd Defendants only. No arguments were advanced against P2/D2. On a careful reading of Enclosure 136, I agree with that observation. The substantive case in fraud and corporate veil-piercing is built around Prithpal’s conduct as the controller of EJA Inc and the relief in paragraph 13.0 of Enclosure 136 is sought against “the 1st and 3rd Defendants”. To the extent the counterclaim against EJASB is pressed at all, it is pressed only by way of the alter ego argument. S/N SgnYYtYryU6qbuEZHjmcAg Fraudulent misrepresentation

I have set out the five pleaded particulars of fraud at paragraph [10] above. None of those particulars is, in terms, an act of EJASB. Particular (a) alleges that Prithpal caused EJASB to write to the Civil Aviation Authority of Singapore. The misrepresentation pleaded is Prithpal's, not EJASB's. Particulars (b), (c) and (d) allege misrepresentations made by Prithpal personally, that he was Director of EJA Inc and EJASB, that a Singapore-incorporated Executive Jets Asia Inc existed and that a false entity acted as agent to CAAS through the ATLAS system. Particular (e), the diverted-flights particular, alleges flying activity by EJA Inc, not by EJASB.

In any event, in Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 the Court of Appeal articulated five essential matters that must be established for a claim in fraudulent misrepresentation – “First, there must be a representation of fact by words or by conduct… Second, the representation must be made with the knowledge that it is false, ie it must be wilfully false or at least made in the absence of any genuine belief that it is true or recklessly… Third, the representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which will include the claimant, in the manner which resulted in damage to him. Fourth, it must be proved that the claimant acted upon the false S/N SgnYYtYryU6qbuEZHjmcAg statements. Lastly, it must be proved that the claimant has sustained damage by so doing”.

I tested each of those five matters against the evidence as it relates to EJASB. The result is the same on each.

There is no evidence at all of any representation of fact by EJASB to Medex. EJASB was not a party to the pre-contract negotiations. EJASB was not a signatory to the ACMI Agreement. PW1, EJASB’s own Director, was not at any material time involved in the negotiations leading to the ACMI Agreement and his evidence at trial was confined to EJASB’s own subsequent provision of services and the unpaid invoice. DW1, Medex’s own witness, did not depose to any representation having been made by EJASB. The only representations he speaks of in his witness statement are made by Prithpal.

The misrepresentation found in particular (c), namely that EJA Inc was incorporated in Singapore, is described in the ACMI Agreement itself. The drafting error by which EJA Inc was misdescribed as a Singapore-incorporated entity is, on Prithpal’s pleaded case, a clerical error caused by the late substitution of EJA Inc for the originally contemplated EJA Charters Pte Ltd. I shall consider that issue on its merits when I come to the case against Prithpal personally. However, even at the highest, that representation cannot be one made by EJASB. EJASB was not a party to the document and was not a participant in the drafting.

Accordingly, on the limb of fraudulent misrepresentation, the counterclaim against EJASB cannot succeed. Medex has not pleaded, far less proved, any representation made by EJASB, nor has it pleaded or proved any reliance by Medex on any such representation, nor has it pleaded or proved any damage flowing from such reliance. Piercing the corporate veil and the alter ego argument

Medex’s remaining route to fixing liability on EJASB is the alter ego argument. In its main written submissions (Enclosure 136), Medex submits that EJA Inc was a “façade” and that this is an appropriate case to lift the corporate veil. The principal authority relied on is the Federal Court’s decision on Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors [2021] 4 CLJ 821.

I accept Ong Leong Chiou as the leading and most recent statement of the law on the piercing of the corporate veil in Malaysia. The Federal Court there identified two distinct principles applicable to corporate veil-piercing, the principle of concealment and the principle of evasion. The Federal Court also held that fraud, as an independent route, may justify the imposition of liability on the perpetrators of the fraud, independently of corporate veil-piercing.

Importantly, however, the doctrine of separate legal personality, founded in Salomon v A Salomon & Co Ltd [1897] AC 22, remains the rule, not the exception. The Court should be slow to pierce the S/N SgnYYtYryU6qbuEZHjmcAg corporate veil. The principle that a parent company and its subsidiary, even a 100% subsidiary, are distinct legal entities was clearly affirmed in People’s Insurance Co (M) Sdn Bhd v People’s Insurance Co Ltd & Ors [1986] 1 MLJ 68. Group corporate structure is not, without more, an instrument of fraud.

Applying those principles to the case against EJASB, I am not satisfied that the threshold for piercing the corporate veil has been crossed. There is no evidence that EJASB was used as a façade to conceal the identity of any real actor; neither was there evidence that EJASB was used to evade an existing legal obligation. EJASB was, by all accounts, a real and operating company at Senai, providing genuine ground services. PW1, its own Director, gave straightforward evidence of those services. EJASB had its own staff, its own corporate organs and its own commercial dealings. EJASB was not the contracting party with Medex, but it was rendering services for which it was paid. On these facts, EJASB is not the alter ego of EJA Inc or of Prithpal in any meaningful sense.

The mere fact that EJASB and EJA Inc are part of the same Executive Jets Asia group of companies, as pleaded in paragraph 3 of the Statement of Claim and the fact that Mr Prithpal at the material time held office as a director of both companies, does not by itself suffice. The corporate group structure is not, without more, evidence of fraud or a façade.

In Ong Leong Chiou itself, the Federal Court held that fraud must be pleaded with sufficient particularity, although it need not be in the form prescribed in textbooks. Reading the Amended Counterclaim as a S/N SgnYYtYryU6qbuEZHjmcAg whole, I find no salient fact pointing to fraud or equitable fraud on the part of EJASB. The pleaded particulars at paragraph 38, even taken at their highest, do not allege a representation, an act or an omission made by EJASB. EJASB is mentioned only in particular (a) and there only as having been “caused” by Prithpal to write a letter, the dishonest mind alleged is Prithpal’s, not EJASB’s.

I should add, for completeness, that Medex's submission at paragraph 8.10 of Enclosure 136, that the cross-examination of Peter Stephen Ireland by counsel for EJASB binds the entire Executive Jets Asia group, in reliance on the "putting and suggesting" rule discussed by Mahadev Shankar J in his article "Putting and Suggesting in Cross-Examination" [1984] 1 MLJ (xi-xiv) at Tab B of Enclosure 137, does not assist Medex against EJASB. The rule that matters put in cross-examination must be proved by positive evidence is a rule of evidential discipline. It governs the proponent of the cross-examination, not the witness's principal or its corporate affiliates. Cross-examination of one party's witness cannot, on any view, supply the missing pleading against another party, the missing representation by EJASB, or the missing evidence of EJASB's participation in any fraud. EJASB's separate corporate personality is not displaced by the line of cross-examination chosen by its counsel against Medex's own witness.

For these reasons, the alter ego limb of the counterclaim against EJASB also fails.

The collapse of liability is sufficient to dispose of the counterclaim against EJASB, but I should add, for completeness, a word on the pleaded damages. The heads of claim at paragraph 39 of the Amended Counterclaim total USD2,177,042.56. Most of those heads (the four invoices issued by Medex, the cost of positioning the aircraft from Sydney to Senai, the purchase of a vehicle and the cost of returning the aircraft) relate exclusively to the contractual relationship between EJA Inc and Medex and in my judgment, cannot be visited on EJASB. The wrongful termination head and the remaining contract value head are, on their face, contractual damages flowing from the alleged repudiation of a contract to which EJASB was not a party. The unlawful flights head is similarly framed against the conduct of EJA, not EJASB. None of the pleaded heads is sustainable as against EJASB.

I therefore answer the second issue in the negative. The Defendant is not entitled to its counterclaim against the 2nd Defendant in the counterclaim. The counterclaim against EJASB is dismissed.

I had reserved my ruling on the admissibility of the 3rd Defendant’s Additional Bundle (Enclosure 129) until the submissions stage. I now deal with it.

Enclosure 129 contains four documents, three of which are computer printouts from websites (the Australian Civil Aviation Safety Authority website and the World Health Organisation website) and the fourth a licence document of an aircraft mechanic, Mr Armando Santiago Parinas. A Section 90A Evidence Act certificate has been filed at Enclosure 130. Medex, as the Plaintiff in the counterclaim, objected to the admission of Enclosure 129 on the principal ground that the documents came in late, after DW1 had completed his evidence and that Medex had been deprived of the opportunity to cross-examine on them.

I draw two observations. First, on the issue between Medex and EJASB which is the subject of these grounds, the four documents in ID-1 are not relevant. They go to the case of the 3rd Defendant on the unlawful-flights head and to the qualifications of Mr Parinas. They do not bear on the only two issues for trial, that is, EJASB’s claim and the counterclaim against EJASB. To that extent, the question of admissibility against EJASB does not arise.

Second, in any event, on Day 4 the 3rd Defendant pointed out that Mr Peter Ireland was physically present in Court and could be recalled by the counsel for Medex if they so wished. That offer was declined. S/N SgnYYtYryU6qbuEZHjmcAg The matter was not raised at the case management on 29 January 2026 (which was specifically convened to confirm the cross-examination schedule). Further, Medex’s own list of witnesses (Enclosure 95) was supplemented only late, with leave granted on Day 3 to add Mr Mark Haslam. That leave to which the 3rd Defendant did not object as a matter of comity. The 3rd Defendant’s late filing of Enclosure 129 must be evaluated against the same backdrop.

On the limited issue I need to decide for present purposes, I make no further ruling on the admissibility of Enclosure 129 in respect of the case between the 3rd Defendant and Medex. That issue does not arise on the issues for trial that I have determined. To the extent it bears on EJASB’s position, ID-1 makes no difference to my conclusions. THE COUNTERCLAIM AGAINST THE 3rd DEFENDANT IN THE

I turn finally to the counterclaim against Mr Prithpal. Although Enclosure 105 framed only two issues for trial, I have heard the evidence of Mr Prithpal across Days 4 and 5. His counsel filed substantive written submissions (Enclosure 140) and reply submissions (Enclosure 148) and Medex's case against him personally was traversed in cross-examination and in Medex's own submissions and reply (Enclosures 136, 145). In the interests of the orderly disposal of the action and the avoidance of any suggestion S/N SgnYYtYryU6qbuEZHjmcAg that any part of the counterclaim remains undetermined, I deal with the counterclaim against the 3rd Defendant on the merits. Medex's pleaded case against Mr Prithpal

Medex's pleaded case against Mr Prithpal is, in substance, a case in fraudulent misrepresentation. The five pleaded particulars at paragraph 38 of the Amended Counterclaim are set out at paragraph [10] above. The principal allegation is that Mr Prithpal represented to Medex that EJA Inc was a Singapore-incorporated company, when in fact it was incorporated in Labuan and that Medex entered the ACMI Agreement in reliance on that representation. The further particulars allege that Mr Prithpal stated he was Director of EJA Inc and EJASB; that he caused EJASB to write to the Civil Aviation Authority of Singapore in defamatory terms; that a false agent procured CAAS permits via the ATLAS system; and that 109.28 hours of flying were diverted from Medex to "illegal and unlawful operations" using two other aircraft (RP-C5505 and N320LV).

I have set out the five-element test for fraudulent misrepresentation as articulated by the Court of Appeal in Yeohata Machineries Sdn Bhd & Anor at paragraph [34] above. Each of those elements must be established, on the balance of probabilities, having regard to the standard reaffirmed by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1.

The first element, a representation of fact, is, in the case of the place-of-incorporation particular, made out by the face of the ACMI Agreement itself. The contract describes EJA Inc as a Singapore-incorporated entity; that description is incorrect. The same cannot be said, on the evidence before me, of the remaining particulars. There is no contemporaneous document in the bundle in which Mr Prithpal personally represented to Medex that a separate Singapore-incorporated entity called Executive Jets Asia Inc existed. There is no document demonstrating that Mr Prithpal personally caused EJASB to write to the Civil Aviation Authority of Singapore. There is no primary CAAS or ATLAS document evidencing the alleged false-agent representation. And the evidence on the diverted flights came late, from DW2 Mark Haslam, who accepted under cross-examination that significant parts of his report rested on what others, including Mr Peter Ireland, had told him, though he maintained he had sought to verify those accounts.

The second element, knowledge of falsity, is the heart of any case in fraud. Mr Prithpal's pleaded answer is that the misdescription of EJA Inc's place of incorporation was a clerical drafting error caused by the late substitution of EJA Inc for the originally contemplated EJA Charters Pte Ltd, when the contractual structure was restructured shortly before signing. That account is consistent with the documentary record, which shows EJA Charters Pte Ltd in earlier dealings with the aircraft owner Oberon Aviation Services Pty Ltd and EJA Inc only being introduced as the contracting party at a later stage. The account is also consistent with the conduct of the parties post-contract : both parties performed for many months without dispute, with payments made and services rendered. I am satisfied, on the S/N SgnYYtYryU6qbuEZHjmcAg balance of probabilities, that Mr Prithpal's conduct in relation to the place-of-incorporation description was not wilfully false, nor was it made in the absence of any genuine belief that it was true, nor recklessly. It was an error.

The third element, that the representation was made with the intention that it should be acted upon by Medex, also fails on the facts. The pleaded representations are part of an internal corporate restructuring in which the contracting party was substituted late in the negotiations. Whether EJA Inc was a Singapore-incorporated or a Labuan-incorporated company has no operational significance to the performance of an aircraft charter, crew, maintenance and insurance arrangement. The evidence does not show that the place of incorporation was a matter on which Medex's signing of the ACMI Agreement turned. As Mr Prithpal pleads at paragraph 5(i) of his separate Defence, the place of incorporation is not a material or fundamental term of an aircraft chartering agreement; the flight rate, the aircraft, the term, the deposit, the minimum guaranteed utilisation and the performance obligations are.

The fourth element, that Medex acted upon the false statement, is unsupported by the evidence. Mr Prithpal's pleaded case, which I accept, is that Medex carried out its own pre-contract due diligence. Medex's principal, Mr Peter Stephen Ireland, visited EJA's Singapore office and the Senai facilities before the ACMI Agreement was signed. Medex was a sophisticated commercial party with its own aviation expertise. The evidence does not show that Medex would have refused to enter the ACMI Agreement had it known that EJA Inc was incorporated in Labuan rather than Singapore. The contract was S/N SgnYYtYryU6qbuEZHjmcAg performed for many months on both sides without complaint about the place of incorporation. The complaint about the place of incorporation only emerged after Medex had been sued and well after the events giving rise to the dispute. As Mr Prithpal pleads at paragraph 5(m) of his separate Defence, this is, on a fair view of the chronology, an afterthought.

The fifth element, damage flowing from reliance, is also not made out. The pleaded heads of damages at paragraph 39 of the Amended Counterclaim total USD 2,177,042.56 and are set out at paragraph [47] above. Each of those heads, on close examination, is referable either to (a) the contractual relationship between EJA Inc and Medex (the four invoices, the cost of positioning and returning the aircraft, the wrongful termination head, the remaining contract value head), or to (b) the alleged unlawful flights using two other aircraft. None of those heads is causally connected to the place-of-incorporation misrepresentation. Even if Medex had known, at the time of signing, that EJA Inc was a Labuan rather than Singapore-incorporated entity, the heads of loss claimed would not, on the evidence, have been avoided.

I should add that the pleaded particulars of fraud at paragraph 38 of the Amended Counterclaim are themselves thin. The Federal Court in Ong Leong Chiou held that fraud must be pleaded with sufficient particularity, although it need not be in the form prescribed in textbooks. The pleaded particulars do not state when each representation was made, where, by what mode (oral or written), to whom and in what circumstances. Even taken at their highest, they are framed as bare assertions. As such, even a finding that one or S/N SgnYYtYryU6qbuEZHjmcAg more elements of the Yeohata Machineries Sdn Bhd & Anor test were prima facie made out would face the further hurdle that the case had not been pleaded with the specificity that fraud requires.

Medex also pleads that Mr Prithpal is the alter ego of EJA Inc. For the reasons given at paragraphs [40] to [46] above in relation to EJASB, the principles in Ong Leong Chiou and Salomon apply with equal force here. The mere fact that Mr Prithpal was the managing director of EJA Inc and the Chief Executive Officer of EJASB does not, without more, justify the piercing of the corporate veil. There is no evidence that EJA Inc was used by Mr Prithpal as a façade to conceal his identity as the real actor; the contract was openly between Medex and EJA Inc, with Mr Prithpal signing in his stated capacity as Director. There is no evidence that EJA Inc was used to evade an existing legal obligation; the obligation alleged is the ACMI Agreement itself, which post-dated the corporate structure. The corporate veil is not to be pierced merely because the alleged fraud, if any, was conceived or executed by a director acting in his corporate capacity.

Pulling the threads together, I am not satisfied, on the balance of probabilities, that Medex has discharged its burden of establishing fraudulent misrepresentation against Mr Prithpal. The first, second, third, fourth and fifth elements of the Yeohata Machineries Sdn Bhd & Anor test all fail, for the reasons given. The pleaded particulars are themselves insufficiently specific. The alter ego argument fails on the same principles that apply to EJASB. The pleaded heads of damages are unparticularised in the evidence and in any event, not causally connected to any actionable misrepresentation. The counterclaim against the 3rd Defendant is dismissed. S/N SgnYYtYryU6qbuEZHjmcAg

For the reasons given –

On Issue 1 : Judgment is entered for the 2nd Plaintiff against the Defendant in the sum of USD3,800.76, together with interest at 5% per annum from the date of the writ until full and final settlement;

On Issue 2 : The Defendant’s counterclaim against the 2nd Defendant in the counterclaim is dismissed;

The Defendant's counterclaim against the 3rd Defendant in the counterclaim is also dismissed; and

Costs of the main action and the counterclaim are fixed globally in the sum of RM170,000.00, subject to allocator, payable by the Defendant in the original action (and Plaintiff in the counterclaim), Medex Aero Pty Ltd, as follows –

RM120,000.00 to the 2nd Plaintiff in the original action (and 2nd Defendant in the counterclaim), Executive Jets Asia Sdn Bhd; and S/N SgnYYtYryU6qbuEZHjmcAg

(ii) RM50,000.00 to the 3rd Defendant in the counterclaim, Mr Prithpal Singh Sandu. Dated : 30 April 2026 -signed-Dr Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the 2nd Plaintiff in the original action/2nd Defendant in the counterclaim : : Mohd Faizal Bin Ahmad together with Muhammad Ibrahim Haneef Bin Azhari Messrs. Hazelin & Associates Counsel for the Defendant in the original action/Plaintiff in the counterclaim : : T. Gunaseelan together with Keshvinjeet Singh Messrs. Veer & Co. Counsel for the 3rd Defendant in the counterclaim : : Cheah Soo Chuan together with Khor Wei Wern and Sharon Teoh Sin Hui Messrs. Tay & Partners S/N SgnYYtYryU6qbuEZHjmcAg