George Pathmanathan A/L Michael Gandhi Nathan v Portcullis International Ltd (W-02(IM)-1221-06/2018; W-02(IM)-1222-06/2018; W-02(IM)-1223-06/2018)

GEORGE PATHMANATHAN A/L … PERAYU-PERAYU MICHAEL GANDHI NATHAN

PORTCULLIS HOLDINGS (MALAYSIA) SDN BHD DAN 20

PORTCULLIS INTERNATIONAL LTD

CHONG KOK KONG RESPONDEN [Dalam p erkara mengenai Notis Permohonan bertarikh 21-1-2017 (Kandungan 233) Dalam Petisyen Pemula No.: D3(2)-26-50-2006 25 Dalam Mahkamah Tinggi Malaya di Kuala Lumpur]

Antara GEORGE PATHMANATHAN A/L … PEMPETISYEN MICHAEL GANDHI NATHAN 30 (NO.K/P: 610925-10-6543) Dan

PORTCULLIS INTERNATIONAL LTD ... RESPONDEN- 35

RESPONDEN PORTCULLIS HOLDINGS (MALAYSIA) SDN BHD CORAM 40 HAMID SULTAN ABU BACKER, JCA HANIPAH FARIKULLAH, JCA KAMALUDIN MD SAID, JCA 2 GROUNDS OF JUDGMENT 5 Introduction [1] There were three (3) Appeals filed by the Appellants against the Orders granted by the Kuala Lumpur High Court on 23.5.2018. 10 All the three (3) appeals were inter-related and inter-linked. The appeals were as follows -

(i) W-02(IM)-1221-06/2018 - The Respondents’ application for payment of Monies Out in Enclosure 198 was 15 allowed by the High Court with costs.

That upon final certification by Leong Siew Hoang & 10 Co, 75% of the certified retained profits for the period 29.7.2011 to 30.1.2015 for the 3rd Respondent and its subsidiaries save Portcullis Trustnet (Labuan) Ltd, shall be paid to the 1st and/or 2nd Respondent ...." 15 [16] The terms of the Consent Order dated 8.9.2015 which are relevant, are as follows: - "1. Messrs Leong Siew Hoang & Co., auditors for the 3rd Respondent (Portcullis Malaysia), certify and finalise 20 within a period of 30 days from the date of this order, the retained profits available for dividend distribution from 29.7.2011 to 30.1.2015, after having first provided the indicative amount to be certified to the Petitioner (George) and the Respondents (Portcullis 25 International. David Chong and Portcullis Malaysia) for their comments (if any);

Messrs KBCF Tan, Labuan, the auditors for 3rd Respondent (Portcullis Malaysia), certify and finalise 30 within a period of 14 days from the date of this order, the retained profits available for dividend distribution 8 for the 3rd Respondent (Portcullis Malaysia) from 5 29.7.2011 up to 30.1.2015 after having first provided the indicative amount to be certified to the Petitioner (George) and the Respondents (Portcullis International, David Chong and Portcullis Malaysia) for their comments (if any);

Portcullis Trustnet (Labuan) Ltd will place an amount no less than the sum of US$695,000.00 which is free from encumbrances in a time deposit account and a copy of the time deposit slip is to be forwarded to the 15 Respondents.

The Petitioner (George) who is the sole signatory to the account of Portcullis Trustnet (Labuan) Ltd hereby gives the following undertaking: - 20 a. That the amount of US$695,000.00 will remain in the time deposit account and upon maturity, will ensure that the time deposit is rolled over to the next maturity date and the sum of US$695, 25 000.00 will not be uplifted….. b. …the undertaking continues until the dividend distribution for the period 29.7.2011 - 30.1.2015 is determined by Messrs Leong Siew Hoang & 30 Co and Messrs KBCF Tan and upon such certification, the time deposit will be uplifted and 9 75% of the certified amount would accordingly be 5 paid within fourteen (14) days from the date of the certification." [17] The issue is whether the High Court Order is an attempt to circumvent the Consent Order by a new agreement through a 10 Court order since the pre-requisites for payment under the Consent Order was not satisfied. The Appellants’ case is that the High Court Order had been wrongly granted to the Respondents notwithstanding that the pre-condition in the Consent Order has not been fulfilled. 15 [18] The Appellants submitted that the key differences between the Consent Order and the High Court Order are as follows: -

(a) The Consent Order requires certification and 20 finalization of the "retained profits available for distribution" by both LSH and KBCF before dividends from Portcullis Malaysia is paid. The High Court Order requires payment of Portcullis Labuan's retained profits without the need for 25 dividend distribution to non-shareholders solely based on KBCF's certification of "retained profits for distribution".

(b) The High Court Order then requires a 2nd payment 30 from Portcullis Malaysia on retained profits of Portcullis Malaysia and its subsidiaries to David 10 Chong and Portcullis International without the need 5 for dividend distribution and when the Consent Order was only in relation to Portcullis Malaysia. [19] It was further submitted that by a letter dated 9.12.2016, LSH responded to provide parties with their findings on the amount of 10 retained profits of USD$693,390.29 for the prescribed dividend period of 2nd Appellant. LSH however, further stated amongst others, that they were not able to certify the profit available for distribution because this is a matter for the Board of Directors of the relevant Companies to decide. 15 [20] By letter dated 27.12.2016, 1st and 2nd Respondents’ solicitors expressly stated that LSH's letter dated 9.12.2016 amounts to a failure to comply with the Consent Order. They had also challenged the approach used by LSH, and rejected the 20 computation provided by LSH. The 1st and 2nd Respondents also disagreed with the amounts provided by LSH. [21] With regard to KBCF, the Appellants submitted that it is evident 25 that in their letter dated 26.2.2018, they had altered their position in 2016, on the sum of US$875,043.00, from being an indicative amount to a final certified amount of retained profits for distribution for Portcullis Labuan without giving any clarification and/or explanation with regard to this change in 30 position. The credibility of KBCF is questionable. 11 [22] Further, their letter dated 26.2.2018 was provided after the filing 5 of the 3 applications before the High Court, which relate to the 3 appeals before this Honourable Court. The change of position discredits KBCF whose belated letter is being used to support the application to receive payment based on unilateral certification without the pre-conditions of the Consent Order 10 being satisfied. [23] In any event, even if KBCF's certification is accepted, the Consent Order is not enforceable as the pre-conditions have not been satisfied. 15 [24] The Respondents on the other hand did not dispute that the High Court originally found for the 1st Appellant and ordered the compulsory sale of the majority 75% shareholding in the 2nd Appellant to 1st Appellant and that the Respondents ran the 2nd 20 Appellant and its subsidiaries profitably until the transfer of shareholding took place on 30.1.2015. [25] The ‘difficulty’ was specially recognised by the Court of Appeal where the Court made it clear that the distribution of profits must 25 reflect the shareholding at that time. The Respondents were relying on the judgment which says that- “[20] We were of the view that the appellants are entitled to dividends beginning from the date of the High Court 30 order on 29 July 2011 and until the date of transfer of the shares…. The distribution of profits should therefore 12 reflect the shareholding at that time. With the lapse of 5 stay, and with the coming into effect of the new shareholding, the first appellant would no longer be entitled to such dividends” [26] It was submitted that the words “profit” and “dividends” may 10 have been used inter changeably but this is not the case. Quite simply, the profits of a company will normally be paid out by issuing dividends. It is the Respondents’ case that the judgment of the Court of Appeal makes it clear that the Respondents were entitled to 75% of the retained profits through the issue of 15 dividends. [27] The Respondents also submitted that a Consent Order is a contract between the parties from which the parties cannot resile. It is binding and it serves as an estoppel. The Appellants 20 agreed to the terms of the Consent Order which provides for the retained profits to be paid out from the time deposit once it is certified. [28] In entering into Consent Order, both parties had the benefit of 25 legal advice and it cannot be denied that both parties were working towards compliance of the Consent Order. It was only once LSH refused to certify the amounts due that the Petitioner used this as an excuse to justify non-compliance and argue that LSH cannot be compelled to comply with the Consent Order as 30 a 3rd party. Having consented to the act, LSH is bound to act and comply with the orders of Court. 13 Our view 5 [29] The issue is whether the High Court Order dated 23.5.2018 in respect of Enclosure 198 is contrary to the Consent Order dated 8.9.2015. The arguments were also related to Court of Appeal Order dated 27.1.2015. The learned judge had acknowledged 10 that the dispute before the Court was on whether the distribution should be in the form of dividends or retained profits. We found, the Court of Appeal had held that the 1st and 2nd Respondents were entitled to dividends from 29.7.2011 until the date of transfer of shares from the 1st and 2nd Respondents to the 1st 15 Appellant. It is not disputed that the transfer of the shares was done on 30.1.2015. [30] Paragraph (b) of the Court of Appeal Order dated 27.1.2015 (pg. 35 to 36 of the Appellants’ Core Bundle) states that: - 20 "Dividen di atas keuntungan Perayu Ketiga daripada 29 Julai 2011 sehingga tarikh pindahmilik saham Perayu Pertama dibayar kepada pemegang-pemegang saham Perayu Ketiga". 25 [31] In the written grounds of judgment of the Court of Appeal dated 14.3.2016, Nallini Pathmanathan JCA (as she was then) said as follows- 30 “[20] We were of the view that the appellants are entitled to dividends beginning from the date of the 14 High Court order on 29 July 2011 and until the date of 5 transfer of the shares…. The distribution of profits should therefore reflect the shareholding at that time…. [21]…It is not disputed that during the time frame, profits of USD 750,000 were accumulated. Therefore, 10 the shareholders of the company are entitled to be paid dividends until the date of the transfer of shares. [22] We dismissed the appeal…...so the cut of date for valuation of the shares remains at 29 July 15

However, we allowed the appeal….and granted that the appellants are entitled to dividend from 29 July 2011 until the date of transfer of the shares from the appellants to the respondent.” 20 [The Appellants are the 1st, 2nd Respondents and 2nd Appellant and the Respondent is the 1st Appellant in the present appeal] [32] It was also stated in the 1st and 2nd Respondents’ Notice of 25 Application for Enclosure 177 dated 18.3.2015 (pg.40 in the Appellants’ Core Bundle), which they had expressly stated that – "The Court of Appeal heard and allowed the Respondents' appeal on 27.1.2015 and inter alia ordered that dividends 30 be declared by the 2nd Appellant until the date of the transfer of the 75% shareholding in the 2nd Appellant by 15 the 1st Respondent to the 1st Appellant and that the 1st 5 Respondent be entitled to those dividends. [33] By the said Order and written judgment of the Court of Appeal, it is also clearly stated that dividends based on the profits of the 2nd Appellant from 29.7.2011 to 30.1.2015. The words 10 “distribution of profits should therefore reflect the shareholding at that time in the judgment” in our view must have been intended to refer to the original shareholding of 1st and 2nd Respondents which is 75% before the transfer took place. Therefore, there is no reason to deny the 1st and 2nd 15 Respondents’ entitlement to dividends of 75% shares from 29.7.2011 to 30.1.2015. [34] It is also important to note that the Consent Order was entered on 8.9.2015 due to dispute as to mechanics of the payment of 20 dividends ordered by the Court of Appeal (pg. 44 to 46 of the Appellants’ Core Bundle). A consent judgment, being a contractual agreement having the force of law was considered by the Federal Court decision in Tan Geok Lan v. La Kuan [2004] 2 CLJ 301 where the Court held as follows: 25 “a consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derives from the contract between the parties 30 leading to, or evidenced by, or incorporated in, the consent judgment or order. A consent order must be 16 given its full contractual effect, even if it relates to an 5 interlocutory step in the action (see para. 390 @ p. 286, Halbury’s Laws of England, 4th edn vol. 37). We gather from this proposition that (i) the agreement on the terms reached between the parties at the interlocutory stage of an action is a contract between the parties and (ii) 10 the consent judgment or order arising out of that contract is also a contract between the parties except that the latter is superadded with the command of the court. In short, there are two contracts, one, before the court makes the order and two, after the order is made. After the order is 15 made the first contract merges into the second contract. That being the case, short of the order being made, the first contract will have to be separately considered on its binding effect based on incidents of a contract”. 20 [35] On the issue of setting aside a consent judgment, the Federal Court in Tong Lee Hwa & Anor v. Chin Ah Kwi Tong Fah [1971] 2 MLJ 75 held that: “After a judgment by consent has been passed and 25 entered, it cannot afterwards be varied on the ground of mistake, except for reasons sufficient to set aside an agreement. The general rule is that after a judgment has been passed and entered, even where it has been taken by consent and under a mistake the court cannot set it 30 aside otherwise than in a fresh action brought for the purpose unless (a) there has been a clerical slip or 17 omission, or (b) the judgment as drawn up does not 5 correctly state what the court actually decided and intended to decide, in either of which cases the application may be made by motion in the action. The same rule must apply, a fortiori, where the parties have entered into an agreement in pursuance of the terms of settlement 10 embodied in the consent order.” [36] The same position was taken by another decision of the Federal Court in Badiaddin Mohamad Mahidin & Anor v. Arab Malaysian Finance Bhd[1998] 1 MLRA 183, where Peh Swee 15 Chin, FCJ said as follows: “the grounds referred to for setting aside a consent order of a judgement by consent are grounds which basically relate to consensus ad idem or the free consent of parties 20 to a binding agreement or contract. It is elementary that if it is proved that there are grounds which vitiate such free consent, the agreement is not binding. Now a consent order or a judgement by consent is undoubtedly based on an agreement of both parties where consent to the 25 agreement must or should have been free in the first place. If the agreement upon which a consent order or judgement by consent is based, is vitiated by any ground recognized in equity as vitiating such free consent, such as fraud, mistake, total failure of 30 consideration, (see Huddersfield Banking Co. v. Henry Lister [1895] 2 Ch. 273 and the cases cited therein), 18 then such a perfected consent order or judgement by 5 consent could be set aside in a fresh action filed for the purpose. Grounds which would vitiate such free consent should also include misrepresentation, coercion, and undue influence and other grounds in equity.” 10 [37] In the present case, the Court of Appeal Order only ordered for dividends on the profits of 2nd Appellant to be paid to its shareholders. It did not order for the 1st and 2nd Respondents to be entitled to 75% of the retained profits or any profits in 2nd 15 Appellant. We agreed to this fact. As a general rule, the terms of the Consent Order must always be worked out within the context of the Court of Appeal Order, failing which the Consent Order would be in contravention with the Court of Appeal Order and cannot be enforced. 20 [38] We have read the terms of the Consent Order provided in the above paragraph carefully. In the Consent Order, it also stated that LSH, the auditors for the 2nd Appellant (Portcullis Malaysia), to certify and finalise the retained profits available for dividend 25 distribution from 29.7.2011 to 30.1.2015 and KBCF Tan, Labuan, the auditors for 2nd Appellant (Portcullis Malaysia), certify and finalise within a period of 14 days from the date of this order, the retained profits available for dividend distribution for the 2nd Appellant (Portcullis Malaysia) from 29.7.2011 up to 30 30.1.2015. 19 [39] Our preliminary view is that there is no mistake or error found in 5 the Consent Order. The learned judge was correct in holding that the Consent Order as valid. It is only a mechanism to finalise the retained profits available for dividend distribution from 29.7.2011 to 30.1.2015. In this regards both LSH and KBCF were auditors agreed to be appointed by parties to 10 finalise and certified the amount within the stipulated period for the Appellants and Respondents’ comments (if any). The problem is that although LSH provide parties with their findings on the amount of retained profits of USD$693,390.29 for the prescribed dividend period of 2nd Appellant. However, insisted 15 that they were not able to certify the profit available for distribution because this is a matter for the Board of Directors of the relevant Companies to decide. LSH’s letter dated 9.12.2016 informing the 2nd Respondent and the 1st Appellant is at pages 58 to 61 of the Appellants’ Core Bundle. 20 [40] By a letter dated 27.12.2016, the 1st and 2nd Respondents’ solicitors expressly stated that LSH's letter dated 9.12.2016 (pg. 62 to 63 of the Appellants’ Core Bundle) amounts to a failure to comply with the Consent Order. It stated that both LSH and 25 KBCF Tan must certify the retained profits available for dividends distribution. They had also challenged the approach used by LSH, and rejected the computation provided by LSH. The 1st and 2nd Respondents also disagreed with the amounts provided by LSH. 30 20 [41] KBCF Tan’s letters dated 26.2.2018 at page 111 and 112 of the 5 Appellants’ Core Bundle, according to the Appellants had altered their position in 2016, on the sum of US$875,043.00, from being an indicative amount to a final certified amount of retained profits for distribution for Portcullis Labuan in 2018. KBCF’s earlier letter dated 7.4.2016 for indicative amount is at 10 pages 51 to 54 of the Appellants’ Core Bundle. Other than that we did see any defect in KBCF’s letter dated 26.2.2018 confirming the amount US$875,043.00 as a final certified amount. We noted KBCF also gave detail workings of the said amount in appendix “A” mentioned in the said letter. Therefore, 15 we found that there is no basis for the Appellants’ to contend that the final certification was made without clarification and explanation. There is also no evidence to prove that there was a lack of bona fide on the part of KBCF in providing the certified amount. 20 [42] We noted that the Court of Appeal judgment at para 21 had stated that during the time frame (29.7.2011 to 23.1.2014) profits of USD 750,000 were accumulated. The shareholders of the company are entitled to be paid dividends until the date of 25 the transfer of shares. “[21] In summary, the effect of the stay of execution was to suspend the High Court order of 29 July 2011 until 23 January 2014. It is not disputed that during the 30 time frame, profits of USD 750,000 were accumulated. Therefore, the shareholders of the company are 21 entitled to be paid dividends until the date of the 5 transfer of shares”. [43] It was not disputed that the accumulated profits of USD 750,000 was from the period of 29.7.2011 to 23.1.2014 and dividends were to be paid until the date of transfer. The transfer of shares 10 only took place on 30.1.2015. The judgment was very clear on payment of dividends. The learned judge had acknowledged this fact. However, parties entered into Consent Judgment and both LSH and KBCF for the 2nd Appellant in the Consent Order were required to certify and finalise the retained profits available for 15 dividend distribution from 29.7.2011 to 30.1.2015. In our view, if accumulated profits of USD 750,000 during that period was already agreed and not disputed, it is reasonable to aspect LSH and KBCF would provide amount of accumulated profits from 24.1.2014 until 30.1.2015. The combined amount of 20 accumulated profits for both periods would show the total accumulated profits from 29.7.2011 to 30.1.2015 available for dividends distribution. [44] Based on the above observation, on the face of it, the amount of 25 retained profits for the prescribed dividend period of 29.7.2011 to 30.1.2015 cannot be less than USD 750,000. We noted the 1st and 2nd Respondents had rejected the computation provided by LSH. The 1st and 2nd Respondents also disagreed with the amounts provided by LSH. However, KBCF’s final certification 30 amount of retained profits available for contribution for the period 29.7.2011 to 30.1.2015 is USD $875,043.00 which 22 amount is more than USD 750,000 which was accepted by the 5 Respondents. In our view, KBCF had complied with the Consent Order dated 8.9.2015. Whereas, LSH had not made final certification amount of retained profits because they were not able to certify the said amount. 10 [45] The Appellants submitted that, the 1st and 2nd Respondents were not shareholders of Portcullis Labuan. However, paragraph 1 of the High Court Order dated 23.5.2018 orders that the sum of USD 656,282.25 be paid by Portcullis Labuan to the 1st and 2nd Respondents when they were not even 15 shareholders. Therefore, this payment in itself contradicts the Consent Order. [46] However, we found there is no merit in the argument because paragraph 1 of the High Court Order only stated that 75% of the 20 total retained profits certified by LSH for Portcullis Trust Net (Labuan) Ltd for the period 29.7.2011 to 30.1.2015 in the sum of

USD 656,282.25 (i.e. 75% of the total certified sum of USD 875, 00) be uplifted from the time deposit and be forthwith paid out to the 1st and/or 2nd Respondents pursuant to Clause 4(b) of 25 the Consent Order dated 8.9.2015. Therefore, paragraph 1 does not say the sum of USD 656,282.25 be paid by Portcullis Labuan but pursuant to Clause 4 (b) of the Consent Order which means that payment of money out is still subject to certification from LSH. Clause 4 (b) clearly says that - 30 “the undertaking continues until the dividend distribution 23 for the period 29.7.2011 - 30.1.2015 is determined by 5 Messrs Leong Siew Hoang & Co and Messrs KBCF Tan and upon such certification, the time deposit will be uplifted and 75% of the certified amount would accordingly be paid within fourteen (14) days from the date of the certification." 10 [47] The problem arose from LSH's letter dated 9.12.2016 which the Respondents considered as failure to comply with the Consent Order and on the 1st and 2nd Respondents’ application (Enclosure 198), the High Court ordered LSH forthwith comply 15 with Clauses 1 and Clause 4(b) of the Consent Order. Clause 1 says that LSH for the 3rd Respondent (Portcullis Malaysia i.e. 2nd Appellant), certify and finalise within a period of 30 days from the date of this order, the retained profits available for dividend distribution from 29.7.2011 to 30.1.2015. We found that there is 20 nothing wrong with the Order of the High Court in directing LSH to comply with the Consent Order. [48] We also found that there is no basis for the Appellant to contend that the High Court ordered 75% of the certified retained profits 25 from Portcullis Malaysia and its subsidiaries (save for Portcullis Labuan) to be paid to 1st and 2nd Respondents. The Order clearly states that 75% of the certified retained profits from the period 29.7.2011 to 30.1.2015 for the 3rd Respondent (2nd Appellant) and its subsidiaries save Portcullis Trust Net 30 (Labuan) Ltd, shall be paid to the 1st and /or 2nd Respondents. The clear word is that payment is subject to final certification by 24 LSH. The High Court Order is consistent with the terms of the 5 Consent Order. [49] There was no application to compel KBCF to certify and finalise the retained profits as provided in the Consent Order either by the 1st and 2nd Respondents or the Appellants. This in our view 10 is simply because the 1st and 2nd Respondents had accepted the Final Certification of the amount of retained profits from KBCF. As alluded to earlier, the only contention by the Appellants is that KBCF had altered their position of 2016 and the Final Certification made in 2018 is without clarification and 15 explanation but they have no evidence to prove such contention. There is also no evidence to show that the Appellants had disputed the Final Certification from KBCF. In any event the Final Certification was also forwarded to the Senior Assistant Registrar of the High Court on 26.2.2018. 20 [50] We were satisfied that the Order of the High Court was mainly to compel LSH to comply with Clause 1 and Clause 4 (b) of the Consent Order dated 8.9.2015 and upon final certification by LSH, 75% of the retained profits for the period 29.7.2011 to 25 30.1.2015 for the 2nd Appellant and its subsidiaries save Portcullis Trust Net (Labuan) Ltd, shall be paid to the 1st and 2nd Respondent. The High Court Order is consistent with the Consent Order dated 8.9.2015. 30 [51] We were satisfied that the Respondents’ application in Enclosure 198 (under which the High Court Order is granted) is 25 not an attempt by the 1st and 2nd Respondents to circumvent 5 and rewrite the Consent Order to their favour. The learned judge was correct in holding that the issue of dividends or retained profits has been resolved by the said Consent Order. Thus, the High Court Order dated 23.5.2018 ordering Portcullis Labuan to make payments to the 1st and 2nd Respondents subject to 10 Clause 4(b) of the Consent Order is not in breach of the Court of Appeal Order. [52] We dismissed the appeal with costs. The order of the High Court is affirmed. 15 1222 Appeal (Enclosure 228) [53] On 1.8.2017, the 1st and 2nd Respondents filed a further application for accumulated interest and accounting of the time 20 deposit accounts ("Enclosure 228"). The High Court granted the application. [54] The Appellants submitted that the Consent Order and the Court of Appeal Order does not make any order for interest. As there 25 is no entitlement to dividend and the pre-requisites of the Consent Order have not been satisfied, the 1st and 2nd Respondents have not been "deprived" of payment as they were not entitled to the same in the first place. Further, the Order is for interest on the full amount in the time deposit account when 30 the Consent Order only required the sum of USD 695,000 to be placed in the time deposit account. 26 5 [55] The Respondents submitted that Enclosure 228 is discrete and stands on its own and is not dependant on the outcome of either Enclosure 198 or Enclosure 233 because unlike those two applications, this application i.e. Enclosure 228 commences with the Consent Order that the 1st Appellant deposited monies in a 10 time deposit and rolled over the same as each time frame expired. A perusal of the bank statement will reveal that time deposits were interest bearing. [56] Further, the Respondents contended that after the 1st Appellant 15 application for leave to the federal Court was dismissed on 20.9.2016, sometimes in October, the 1st Appellant withdrew a sum of USD 133,673.68 from the monies in time deposits. In other words, he withdrew monies with interest that had accumulated in the time deposit. 20 [57] In reply, the Appellants stated that the amount USD 133,673.68 was in fact a transfer from the time deposit accounts to portcullis Labuan’s bank account and still left remaining a sum of USD 695, 917.55 which exceeded the amount that was required to be 25 placed in time deposit account under the Consent Order. Our view [58] The relevant part of Order of the High Court on 23-5-2018, says 30 27 as follows: - 5 "1. That the Petitioner (George) shall accumulate and retain all interest earned on monies placed in the time deposits (the "Time Deposits Accounts") by the Petitioner at Maybank International Labuan Branch 10

The Petitioner shall within 14 days from the date of 15 this Order, provide an account of the Accumulated Interest earned from the date of the Consent Order to the date of this Order by way of an Affidavit;

The Petitioner shall forthwith refund any and all 20 Accumulated Interest that has been utilized, transferred set off and/or otherwise withdrawn from the Time Deposits Account from the date of the Consent Order to 23. 5. 2018; and 25

75% of the Accumulated Interests from the date of the Consent Order to the date the monies placed in the time deposits are disbursed to the 1st and 2nd Respondents, shall be paid to the 1st and/or 2nd Respondents." 30 28 [59] The relevant part of Consent Order provides as follows – 5 “3. Portcullis Trustnet (Labuan) Ltd will place an amount no less than the sum of US$695,000.00 which is free from encumbrances in a time deposit account and a copy of the time deposit slip is to be forwarded to the 10 Respondents.

The Petitioner (George) who is the sole signatory to the account of Portcullis Trustnet (Labuan) Ltd hereby gives the following undertaking: - 15 a. That the amount of US$695,000.00 will remain in the time deposit account and upon maturity, will ensure that the time deposit is rolled over to the next maturity date and the sum of US$695, 20 000.00 will not be uplifted…. b. … the undertaking continues until the dividend distribution for the period 29.7.2011 - 30.1.2015 is determined by Messrs Leong Siew Hoang & 25 Co and Messrs KBCF Tan and upon such certification, the time deposit will be uplifted and 75% of the certified amount would accordingly be paid within fourteen (14) days from the date of the certification." 30 29 [60] We agreed with the Respondents that the balance monies in the 5 time deposits continues to attract interest. Clause 3 of the Consent Order clearly provides that the monies were to be deposited in a time deposit. A time deposit is quite simply an alternative way of saying fixed deposit or in other words to deposit monies in an interest bearing account for a fixed period. 10 “Time deposit” has been described in Cambridge Online Business English Dictionary as “a financial arrangement in which you put money in a bank account to earn for a fixed period of time”. 15 [61] As correctly pointed by the Respondents that Consent Order envisages the deposited monies to attract interest comes from Clause 4(a) which requires the deposited monies to be rolled over. In other words, for the same arrangement to be repeated once the time frame expires thereby attracting interest on 20 interest. There is no reason for this if the deposited monies do not attract interest. We also agreed with the Respondents that it was originally envisaged by parties that the monies under the Consent Order would have been released after the Federal Court decision in September 2016 but the Respondents have 25 yet to receive the money. [62] The Order inter alia directing the 1st Appellant to provide account of the accumulated interest earned from the date of the Consent Order to the date of the Order, refund any and all 30 accumulated interest that has been utilized, transferred, set off and/or otherwise withdrawn from the Time Deposits Accounts 30 from the date of the Consent Order to 23.5.2018 and 75% of the 5 accumulated interest from the date of the Consent Order to the date the monies placed in the time deposits are disbursed to the 1st and 2nd Respondents, shall be paid to the 1st and/or 2nd Respondents. 10 [63] We were satisfied that the High Court did not commit any error in granting the Order for an accounting and payment of accumulated interest to the 1st and 2nd Respondents. [64] We dismissed the appeal with Costs. The Order of the High 15 Court is affirmed. 1223 Appeal (Enclosure 233) [65] The appeal is against the dismissal of the Appellants’ 20 Application to Discharge the Mareva Injunction in Enclosure 233 dated 21.9.2017. We had given our views that appeals 1221 and 1222 were dismissed. It follows that this appeal should also failed. 25 Our view [66] Prior to the said application, on 24.2.2017, the High Court had granted a Mareva Injunction Order against 1st Appellant, 2nd Appellant and Portcullis Labuan, which amongst others: - 30

(i) restrains the 1st and 2nd Appellant from uplifting, 31 transferring, disposing, removing and/or dissipating 5 the monies totalling USD 821,034.09 (even though the Consent Order only provided that the sum of USD 695,000.00 was to remain) held in time deposit accounts maintained by Portcullis Labuan, until 1st and 2nd Respondents’ application for payment of 10 retained profits in Enclosure 198 is heard and disposed; and

Suatu perintah untuk menghalang Pempetisyen, Portcullis Trustnet (Labuan) Ltd dan Responden Ketiga samada melalui mereka sendiri atau melalui pengarah-pengarah, pegawai-pegawai, penama- 20 penama, atau ejen-ejen mereka barang siapa daripada memasuki sebarang transaksi, urusan atau perjanjian yang berkaitan dengan Wang tersebut sehingga jumlah-jumlah dibawah perintah-perintah Mahkamah bertarikh 23.5.2018 (Kandungan 198 dan 25 Kandungan 228) dibayar kepada Responden-Responden Pertama dan Kedua;

Suatu perintah untuk menghalang Pempetisyen, Portcullis Trustnet (Labuan) Ltd dan Responden 30 Ketiga samada melalui mereka sendiri atau melalui pengarah-pengarah, pegawai-pegawai, penama- 33 penama, atau ejen-ejen mereka barang siapa 5 daripada membuat sebarang pembayaran daripada Wang tersebut kepada Pempetisyen atau Responden Ketiga dan/atau pekerja-pekerja, agen-agen atau mana-mana pihak kecuali dengan kuasa nyata oleh Mahkamah Yang Mulia ini sehingga jumlah-jumlah di 10 bawah perintah-perintah Mahkamah bertarikh 23.5.2018 (Kandungan 198 dan Kandungan 228) dibayar kepada Responden-Responden Pertama dan Kedua ... " 15 [69] We did not find any error with the High Court Order. The Order was correctly granted for purposes of maintaining the status quo of the disputed amount until the 1st Appellant complied with the terms of the Consent Order. The earlier Order dated 24.2.2017 for injunction granted by High Court against the 1st and 2nd 20 Appellant and Portcullis Labuan was pending disposal of Enclosure 198. In this case the learned judge had also disposed of Enclosure 228. Since, the learned judge had disposed of Enclosure 198 and Enclosure 228, therefore, it was correct for her to extend the injunction order earlier granted against the 25 Appellants to comply with her Order directing the Appellants to comply with the terms of the Consent Order. [70] We dismissed the appeal with Costs. The Order of the High Court is affirmed. 30 34 Conclusion 5 [71] In conclusion, having heard the appeals, we found there are no merits in the Appellants’ appeals. It is our unanimous decision that the appeals are dismissed with Costs of RM 15,000.00 for all the three appeals and subject to allocator fee. The deposit if any is refunded to 10 the Appellants. Dated this 24 May, 2019 15 Sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA 20 Parties

Siva Kumar Kanagasabai and Anita Natalia for the Appellants 25 (Messrs Skrine)

Anantha Krishnan for the Respondent (Messrs Anantha Krishnan)