1. ) Good Quantum Sdn. Bhd. v Alliance Investment Bank Berhad (WA-28PW-277-10/2021)

GOOD QUANTUM SDN BHD (Company No.: 730556-H)

DATO HAMZAH BIN GHAZALI (NRIC No.: 90422-05-5269/1640431)

DATUK CHANG KOK CHUANG (NRIC No.: 580101-01-5847/5326224)

WONG HON KEONG (NRIC No.: 640322-10-7253/7334117) …DEFENDANTS (IN THE ORIGINAL ACTION)

DATUK CHANG KOK CHUANG (NRIC No.: 580101-01-5847/5326224)

RIGHT DEVELOPMENT ACTIVITIES SDN BHD (Company No.: 441009-A) … PLAINTIFFS AND ALLIANCE INVESTMENT BANK BERHAD (Previously known as ALLIANCE MERCHANT BANK BERHAD) (Company No.: 21605-D) … DEFENDANT (IN THE COUNTERCLAIM) GROUNDS OF DECISION Preliminary Note [1] I understand that there is a difference in opinion between the parties as to whether the decisions that I made on 13.12.2022 are ‘rulings’ that are made in the course of a hearing which do not finally disposed of the rights of the parties. For this reason, I wish to put on record that in styling this as ‘Grounds of Decision’, it is not my intention to express a view that my ‘decision’ amounts to a ‘ruling’ or otherwise. Background facts [2] On 24.9.2014, the Court of Appeal ordered the Plaintiff, Alliance Investment Bank Berhad (‘AIBB’) to pay damages for breach of Collateral Contract to be assessed to Good Quantum Sdn Bhd (‘Good Quantum’) and general damages to be assessed to Datuk Chang Kok Chuang (‘Datuk Chang’) and Right Development Activities Sdn Bhd (‘RDA’) who are the 1st and 3rd Defendants in the Original Action and the 2nd Plaintiff in the Counterclaim respectively arising from AIBB’s wrongful act of selling certain PCB Shares (‘the Liability Judgment’). The Court of Appeal delivered its Grounds of Judgment on 23.1.2015 (‘Grounds of Judgment’). [3]

(a) whether the Court of Appeal has made a finding that AIBB is responsible for the Securities Commission’s rejection of the PCB Restructuring Scheme in the Liability Judgment and the Grounds of Judgment? It is AIBB’s case that the Court of Appeal did not make such finding. Therefore, damages if any arising therefrom ought not to be a head of damages to be assessed. This head of damages, appears to be the substance of the Assessing Parties’ claim for damages in the assessment.

(b) what is the meaning of ‘general damages’ awarded to Datuk Chang and RDA in the Liability Judgment? It is AIBB’s contention that on established principles, ‘general damages’ refer to pecuniary loss which is not capable of precise calculation. Hence, no evidence on special damages should be allowed to be adduced. The Assessing Party contended otherwise.

(c) whether this Court can give effect to the order for damages for the sale of PCB Shares to be assessed when the Court of Appeal has concurrently declared that the transactional documents which confer beneficial ownership of the PCB Shares to Good Quantum are invalid, ineffective and unenforceable? The Court of Appeal in the Liability Judgment has ordered for damages for breach of the Collateral Contract and damages for wrongful and negligent sale of the PCB Shares. AIBB contended that the two orders are inconsistent as the effect of the finding of breach of the Collateral Contract means that the ownership of the PCB Shares did not pass to Good Quantum. The Assessing Party contended that in a case where there are inconsistencies between a primary order and a consequential order, the declaratory order being the primary order ought to prevail over the consequential order for damages for wrongful and negligent sale of the PCB Shares. Therefore, this Court is not required to assess the damages for the wrongful and negligent sale of the PCB Shares. [12] On 13.12.2022, after reading the written submissions filed by the parties, I made the following decision in respect of the 3 Key Issues (‘Orders on 3 Key Issues’):

(a) That the Court of Appeal made no finding regarding the party responsible for the Securities Commission’s rejection of the PCB Restructuring Scheme. As such, the Assessing Party shall be precluded from adducing any evidence, oral or documentary, relating to losses and or damages due to and or arising from the rejection of the PCB Restructuring Scheme from AIBB as the Assessed Party;

(b) That whilst the Court of Appeal had expressly awarded liability for ‘general damages’ to Datuk Chang and RDA, nevertheless looking at the Defence and Counterclaim of Datuk Chang and RDA and the Grounds of Judgment, ‘general damages’ in this instance would cover both pecuniary and non-pecuniary damages. Accordingly, evidence may be adduced to prove both category of losses, if any, in the assessment of damages;

(c) That as the Liability Judgment vis-à-vis Good Quantum has not been set aside wherein the Court of Appeal has ordered assessment on (i) damages for breach of the Collateral Contract and (ii) damages for the illegal or wrongful sale of the PCB Shares and (iii) damages for the negligent sale of the PCB Shares, the Assessing Party is entitled under the Liability Judgment to adduce evidence in support of the 3 separate limbs at the hearing of the assessment of damages. However, the parties, in this case AIBB, are not precluded from raising any arguments or objections regarding the Assessing Party’s locus standi or capacity to seek damages for (ii) and (iii) or issues relating to overlapping or double claims;

(d) For the avoidance of any doubt, issues relating to remoteness, duty to mitigate, causation and other general principles on proving damages are relevant issues for the assessment of damages. [13] In arriving at the aforesaid Orders On 3 Key Issues, I have proceeded on the basis that the Liability Judgment has not been set aside and or varied in any way under the Consent Order. Further, by the terms of the Consent Order, the parties have agreed and in fact this Court has been directed to consider the assessment of damages afresh without in any way being bound or influenced by the decisions of the Timbalan Pendaftar, the High Court and the Court of Appeal in respect of the matters raised in Enclosure 90. [14] Thus, in respect of the 1st Key Point, namely on whether the assessment for damages includes any loss arising from the Securities Commission’s rejection of the PCB Restructuring Exercise, from the perusal of the Grounds of Judgment, it is abundantly clear that the Court of Appeal had made no finding of fact as to the reason or cause for the Securities Commission’s rejection of the PCB Restructuring Exercise. Certainly, there was no finding of fact that the rejection was due to any breach or fault of AIBB. [15] Learned counsel for the Assessing Party sought to justify the inclusion in the assessment of damages an inquiry into the consequences of the rejection of the PCB Restructuring Exercise on the ground that the Court of Appeal had in the Liability Judgment ordered for ‘damages for breach of Collateral Contract’. According to learned counsel, the Collateral Contract included a representation by AIBB that ‘PCB will be worth more than its market capitalization and that PCB’s PN 17 status will not be an issue as AMMB was the corporate adviser’. This means that there was an expectation by the Assessing Party of pecuniary gains upon the successful completion of the PCB Restructuring Exercise. [16] Thus, although the Securities Commission had rejected the PCB Restructuring Exercise and the Grounds of Judgment did not make any finding as to reasons or party responsible for the rejection, nevertheless, it is contended that it was a term of the Collateral Contract that AIBB would ensure the successful completion of the PCB Restructuring Exercise and this was breached by AIBB with the rejection by the Securities Commission of the same. [17] With respect, I am unable to agree. [18] The plain fact is that it was never the Assessing Party’s case that AIBB had warranted that the PCB Restructuring Exercise would be successfully completed. Indeed, this was not pleaded in the Defence and Counterclaim of the 1st Defendant nor in the Defence and Counterclaim of the 3rd Defendant and Counterclaim the 2nd Plaintiff (in the Counterclaim). In other words, the claim by the Assessing Party was never an issue tried by the High Court and no evidence relating to the same was adduced at the trial. [19] The Grounds of Judgment made no mention at all of any such term. The breach of the Collateral Contract as contended by the Assessing Party before the Court of Appeal as evidenced from paragraphs [16] and [17] of the Grounds of Judgment pertained specifically to their claim that Good Quantum’s liability was subject to the condition precedent that ‘… approval is obtained from Bursa Malaysia Berhad for the transfer of the PCB Shares to the 1st defendant’. [20] The Assessing Party’s contention before the Court of Appeal was that AIBB had acted in breach of the Collateral Contract by (a) insisting on payment for the PCB Shares before the successful completion of the PCB Restructuring Exercise and (b) the unlawful sale of the 14,000 PCB Shares on 17.3.2008 and the continued sale of the OCB Shares before the successful completion of the PCB Restructuring Exercise. [21] What the Assessing Party seeks to do through the proposed inquiry into the consequences of the rejection of the PCB Restructuring Exercise in the hearing of the assessing of damages is to introduce through a backdoor and as an afterthought, a claim for damages for an alleged breach which was never pleaded and canvassed before the Court. This cannot be permitted and will result in serious prejudice to AIBB. The evidence sought to be adduced under this head of damages is irrelevant as the same falls outside the ambit or parameter of the terms of the Liability Judgment. [22] As regards the 2nd Key Issue, the Court of Appeal had allowed the claim of ‘general damages’ as prayed by Datuk Chang and RDA vide their Counterclaim. Having perused the Defence and Counterclaim of the 3rd Defendant & Counterclaim by the 2nd Plaintiff (in the Counterclaim), I am of the view that the use of the words ‘general damages’ ought not to be construed strictly given that no express distinction was drawn between ‘general damages’ and ‘damages’ in the pleaded claim. Furthermore, paragraphs 23.1 and 23.2 of the Defence and Counterclaim of the 3rd Defendant & Counterclaim by the 2nd Plaintiff (in the Counterclaim) appear to suggest that the words ‘general damages’ and ‘damages’ were used interchangeably. I do not think that the solicitors for Datuk Chang and RDA had focused their mind on the distinction at the time of drafting the pleadings. Hence, for the aforesaid reasons, this Court holds that evidence may be adduced to prove both pecuniary and non-pecuniary losses, if any, at the hearing of the assessment of damages. [23] Finally, on the 3rd Key Issue, the reasons for the same is self-explanatory from the decision made. Given the possible legal consequences that AIBB has raised regarding the declaration that the Novation Agreement and the Repayment Agreement being ineffective and or invalid and the further fact that the rights and interests of Good Quantum over the PCB Shares are derived from the Novation Agreement, it must be open to AIBB to put forth its challenge at the hearing of the assessment of damages that the Assessing Party has no locus standi or capacity to seek damages for the wrongful or negligent sale of the PCB Shares. It would not be right for me to preclude the Assessing Party to introduce evidence of any damages arising from the wrongful or negligent sales of the PCB Shares when the Liability Judgment has not been set aside or varied. [24] For completeness, after delivering the Order On 3 Key Issues, the Court sought from counsel their respective views on the appropriate procedure for the evidential hearing for the assessment of damages. The Court also enquired on the number of witnesses that parties would be calling for the said hearing. [25] The Court then directed the parties to file their respective proposed list of witnesses and to submit in writing to the Court on the nature of the evidence proposed to be adduced by their respective witnesses for me to consider so that I may rule on the relevance or otherwise of the proposed evidence to the assessment of damages bearing in mind the Orders On 3 Key Issues. This is to ensure that the assessment of damages can proceed efficiently to save judicial time. [26] Pursuant thereto, both parties subsequently filed their respective submissions. [27] On 6.1.2023, after reading the written submissions and hearing further oral submissions from counsel, I made the following decisions that are to apply to the hearing of the assessment of damages:

(a)

That the proposed Heads of Damages under items 7.1, 7.2, 7.3, 10, 13 and 14 of the written submission ‘The Heads of Claims For Assessing Party’ filed by the Assessing Party under Enclosure 32 (‘the Excluded Heads of Claims’) are to be excluded from the assessment of damages;

(b) That the Assessing Party is to file their witness statements by 31.3.2023 and the Assessed Party is to file their witness statements by 12.5.2023;

(c) The hearing of the assessment of damages is fixed on 26 to 28 July 2023.

(d) A further case management is also fixed on 12.5.2023. [28] The reason for my decision to exclude the Excluded Heads of Claims is that these proposed Heads of Damages thereto relate to evidence to establish damages arising from the Securities Commission’s rejection of the PCB Restructuring Scheme which I have expressly ordered to be excluded by the Orders On 3 Key Issues. [29] The hearing of the assessment of damages ought to proceed following the parameters as determined by this Court based on the Orders On 3 Key Issues as otherwise unnecessary time and costs will be incurred both by the parties and the Court on matters which are irrelevant to the Court’s determination of the quantum of damages. Dated on the 13th day of January 2023 ONG CHEE KWAN J Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 COUNSEL:

Mr. Benjamin John Dawson together with Ms. Koh San Tee for the Party Being Assessed (Plaintiff in the Original Action and the Defendant in the Counterclaim) Messrs Benjamin Dawson (Kuala Lumpur)

Datuk Jagjit Singh for the Assessing Parties (1st and 3rd Defendant in the Original Action and the Plaintiffs in the Counterclaim) Messrs. Messrs. Bell & Lee (Melaka)