1. ) Haji Ahmad Kamal Bin Zakaria v Perak Integrated Network Services Sdn. Bhd. (BA-23NCvC-42-09/2019)

URBAN DOMAIN SDN. BHD. 19 (No. Syarikat : 652499 – P) ...PLAINTIF-PLAINTIF 20 21 DAN 22 23 PERAK INTEGRATED NETWORK SERVICES SDN BHD . 24 (No. Syarikat : 522474 – U) ...DEFENDAN 25 26 27 GROUNDS OF JUDGMENT 28 29

This is the judgement of the Court after a full trial. 30 29/03/2022 14:15:09 BA-23NCvC-42-09/2019 Kand. 106

The Plaintiff’s claim for general and special damages arising from 1 the tort of abuse of process was allowed by this Court on 19.11.2021. 2 3

Dissatisfied with the said decision, the Defendant has appealed 4 against the entirety of that decision. 5 6 Parties 7

The Plaintiffs in this case are : 8 1) Hj Ahmad Kamal b Zakaria (1st Plaintiff); 9 2) Azrina Mohamad Aziz (3rd Plaintiff); 10 3) Bunga Raya ICT Sdn Bhd (5th Plaintiff); and 11 4) Urban Domain Sdn Bhd (6th Plaintiff). 12 13

The 2nd and 4th Plaintiffs have withdrawn their claims against the 14 Defendant leaving the above said Plaintiffs to continue on to pursue their 15 claim. 16 17

The 1st Plaintiff is the Chief Executive Officer of Bunga Raya ICT 18 Sdn Bhd (‘Bunga Raya’), the 5th Plaintiff. 19 20

The 1st Plaintiff is at the same time the director of Urban Domain 21 Sdn Bhd (‘Urban Domain’), the 6th Plaintiff. 22 23

The 3rd Plaintiff is the other director of Urban Domain. She is also 24 the financial manager of the Defendant and is in charge of its bookkeeping 25 and accounting functions. 26 27

The Defendant (interchangeably referred to as ‘PINS’ hereafter) is 28 a private limited company incorporated in Malaysia and has its registered 29 office in Sungai Buloh, Selangor. 30

Bunga Raya, Urban Domain and PINS were previously parties to a 1 joint venture agreement dated 22.2.2006 signed between Bunga Raya 2 and PINS to carry out Concession Works and License Works in the State 3 of Perak. 4 5

At the commencement of the trial, counsel for the Plaintiffs informed 6 the court they were withdrawing the claim for malicious prosecution and 7 wished to proceed only with the tort of abuse of court process against 8 PINS. 9 10 Background/Plaintiffs’ Pleaded Case 11

The Plaintiffs’ pleaded case is expounded in the Statement of Claim 12 filed on 12.9.2019. 13 14

It can safely be said that the Plaintiff’s claim emanated from an 15 earlier High Court Civil Suit No. 22NCVC-154-04/2014 (Suit No. 154) tried 16 in the Kuala Lumpur High Court. The Plaintiffs have referred to and relied 17 on the High Court Order dated 14.7.2017 and the Grounds of Judgment 18 (GOJ) dated 14.7.2017 in Suit No. 154 for its full terms and effect to found 19 the instant civil suit against PINS. 20 21

Suit No. 154 was initiated by PINS against the Plaintiffs for breach 22 of the above mentioned joint venture agreement dated 22.2.2006 as well 23 as for breach of fiduciary duties. 24 25

Reference must also be made to another Kuala Lumpur High Court 26 case i.e. Civil Suit No. 22NCC-1041-07/2012 (Suit No. 1041) which was a 27 derivative action initiated by Urban Domain alleging breaches of contract 28 on the part of PINS and one Dato’ Seri Dr Abdullah Fadzil Che Wan. The 29 claim was allowed in favour of Urban Domain on 26.9.2013. 30

It is the Plaintiffs case that on 2.4.2014 PINS had maliciously and 1 without reasonable and probable cause instituted Suit No. 154 against the 2 Plaintiffs based on breach of fiduciary duties. 3 4

Suit No. 154 was set down for trial over 11 days before the High 5 Court Judge Justice S Nantha Balan (as he then was) and upon hearing 6 oral evidence from all the 7 witnesses called and having had sight of all 7 the documentary evidence made available during the duration of the trial 8 the learned Judge dismissed PINS’ claim in Suit No. 154 on the ground, 9 inter alia that it constituted an abuse of process. 10 11

In particular the Plaintiffs rely on Paragraphs 52.3 and 79 of the GOJ 12 in Suit No. 154 which reads as follows : 13 14 Paragraph 52.3 : 15 “On that analysis, and based on the narrative of facts alluded to earlier, 16 I am convinced that this suit is plainly and patently an abuse of process.” 17 18 Paragraph 79 : 19 “As I stated earlier, the filing of this suit in light of all of the events had 20 taken place earlier, is an abuse of process. This suit should clearly have 21 been brought as part of the PINS counterclaim in suit 1041 and D1 to 22 D5 could have been brought in as additional parties to the counterclaim. 23 In that way, all necessary and relevant parties would have been present 24 and everything could have been dealt with by the learned Judge in that 25 case. Of course, suit 1041 would have become more complex but that 26 is far better than to have two (2) Courts to hear suits which arose out of 27 the same factual matrix involving more or less the same players and the 28 same documents. Clearly, this is a classic case where estoppel and res- 29 judicata should apply.” 30 31

The Plaintiffs also relied on the Supplementary Witness Statement 1 of Encik Zadey Che Wan b Abdullah Fadzil of the Defendant, wherein his 2 evidence in answer to question 1 was as follows : 3 4 “…Hence, we made the decision to allow Ahmad Kamal to build for 5 others but not to own any Infrastructures.” 6 7

The Plaintiffs averred that the stand taken by Encik Zadey above 8 constituted an abandonment of the pleaded claim in Suit No. 154. 9 10

PINS was dissatisfied with the outcome of the decision in Suit No. 11 154 and appealed to the Court of Appeal. On 4.7.2018 the Court of Appeal 12 dismissed the appeal with costs. 13 14

On 3.8.2018 PINS applied for leave to appeal to the Federal Court. 15 The said application for leave was dismissed with costs. 16 17

The Plaintiffs aver that PINS in pursuing the appeal and the leave 18 application had acted in continuation and expansion and or aggravated 19 the abuse of process and by reason of those acts had caused the Plaintiffs 20 to suffer loss and damage. 21 22 Witnesses called at the trial 23

Only 2 witnesses were called at the trial. These were the Plaintiffs’ 24 witnesses. They were : 25 SP 1 : Haji Ahmad Kamal b Zakaria (1st Plaintiff); and 26 SP 2 : Azrina Mohamad Aziz (3rd Plaintiff). 27 28 29 30 The Defendant’s Case 1

At the close of the Plaintiffs’ case PINS submitted no case to 2 answer. Consequently, PINS did not testify at the trial. 3 4 Summary of the Evidence of PW 1 5

In his testimony PW 1 related to the Court the basis of the Plaintiffs’ 6 legal action for abuse of process which he said was based on the GOJ 7 dated 14.7.2019 in Suit No. 154 and also from his own personal 8 knowledge of revenge and understanding of injustice. 9 10

PW 1 claimed that Suit No. 154 was nothing more than an act of 11 revenge perpetrated by PINS upon the Plaintiffs in retaliation for the filing 12 of Suit No. 1041 by Urban Domain against the Defendant, PINS OSC & 13 Maintenance Services Sdn Bhd and Dato Fadzil Che Wan. After Urban 14 Domain obtained judgment against PINS, they took revenge against 15 Urban Domain by filing Suit No. 154 against him. PW 1 said that PINS 16 believed he was the alter ego of Urban Domain and Bunga Raya and thus 17 wanted to punish all the Plaintiffs as they were also defendants in Suit No. 18 154. 19 20

When asked to elaborate on what he meant by ‘revenge’ PW 1 21 described Suit No. 154 as being a lie from start to finish, that PINS did not 22 have any evidence to support their claim but yet went ahead anyway with 23 litigating their claim. To him it amounted to nothing more than a means of 24 retaliation against him. 25 26

PW 1 attested to the fact that Iwan who is one of PINS’ main witness’ 27 at the trial abandoned their pleaded case and alleged that PINS had 28 exclusivity to build telecommunication towers and broadband structures 29 in Perak. PINS other witness Zadey, however in his Supplemental 30 Witness Statement made it clear that it was never an issue of exclusivity 1 to build but rather it was an issue of waiver to build but not to own small 2 or mini structures. 3 4

PW 1 explained that Suit No 154 was also used to punish the 2nd, 5 3rd and 4th Plaintiffs as they were deemed to be associated with him via 6 their involvement in the telecommunication industry. 7 8

PW 1 said all the Plaintiffs suffered injustice in having to defend Suit 9 No. 154 which should not have been brought against them in the first 10 place. They should not have been forced to defend themselves in Suit 11 No. 154. They should not also have been forced to defend themselves 12 again at the Court of Appeal and the Federal Court. 13 14

PW 1 relied on Paragraph 49 of the GOJ where the learned Judge 15 stated “the instant suit was an obvious manifestation of an abuse of 16 process” to support his stand that the learned Judge was aware PINS was 17 unhappy with the judgement in favour of Urban Domain in Suit No. 1041 18 and hence that unhappiness germinated itself for all to see in Suit No. 19 154. 20 21

PW 1 referred to several more paragraphs from the GOJ in Suit No. 22 154 which showed that PINS did not lead any credible evidence to 23 substantiate all their serious allegations against the Plaintiffs, that they did 24 not challenge him during cross-examination and had failed to prove all 25 their allegations on a balance of probabilities. PW 1 stated that PINS in 26 effect did not have any evidence against him and he felt that it was wrong 27 of them to proceed with the trial and then “back off” when challenged 28 under cross-examination. PW 1 said PINS knew from the onset of the 29 case that it had no evidence to support its claim. 30

Under cross-examination PW 1 explained why he thought the 1 Defendant’s actions were unjust and an abuse of process. Having to 2 defend Suit No. 154 was a harassment to him, was troublesome and had 3 caused him inconvenience. He was forced to attend meetings, read 4 documents, attend to his lawyers’ queries and spent time preparing his 5 witness statements. This was on top of him having to attend court 6 proceedings for 11 days and worse of all to endure intrusive cross- 7 examination even after PINS had effectively abandoned its pleaded case. 8 PW 1 felt that they should have withdrawn their case instead of turning 9 the whole action into a personal attack against him. PW 1 said he had to 10 endure 5 years of worry and anxiety with the case hanging over his head. 11 12

When asked to explain why he thought Suit No. 154 was an 13 afterthought and retaliation for Suit No. 1041, PW 1 said it was obvious 14 that Suit No. 154 was filed as a tool to exert pressure on Urban Domain. 15 PW 1 alleged that PINS was hoping Suit No. 154 could be used as a 16 bargaining chip for Suit No. 1041. This was borne out by the fact that he 17 and Iwan had a few discussions to settle both suits but PW 1 stayed 18 resolute in refusing to entertain any overtures of settlement. 19 20

PW 1 said he was justified and vindicated when the learned Judge 21 gave a thorough and systematic analysis of the facts and evidence in his 22 GOJ and found in favour of all the Plaintiffs. In his testimony PW1 attested 23 to the following :- 24 25 Q19: What do you mean by abuse of process? 26 A19: I understand it in the way it was explained in the Grounds. 27 28 Q20: Can you explain further? 29 A20: Yes, I can. I refer to the finding of abuse of process in three 1 paragraphs of the Grounds, being paragraph 49, paragraph 52.3 and 2 paragraph 79. 3 4 Q21: What about paragraph 49? 5 A21: Paragraph 49 reads, inter alia, “And so, it is relevant to ask why 6 PINS did not make the present claim as part of its counter-claim in suit 7 1041? It was therefore strongly argued for the defendants that based on 8 the facts and circumstances alluded to above, res judicata in the “wider 9 sense” applied and that the instant suit was an obvious manifestation of 10 an abuse of process. It is of course trite that whether res judicata in the 11 wider sense should be permitted to bar a claim is a matter that is to be 12 determined on the facts of each case, always having regard to where 13 the justice of the individual and particular case lies. I will return to this 14 topic in due course. I now move on to the topic of the plaintiffs’ pleaded 15 case.” I want to draw attention to the words, “the instant suit was an 16 obvious manifestation of an abuse of process”. I also want to draw 17 attention to the words, “where the justice of the individual and particular 18 case lies”. [See Common Bundle of Documents at Volume 1, page 33.] 19 20 Q50: What do you mean abuse of process in the legal sense? 21 A50: I mean the Judge said “abuse of process “. My own words are 22 “injustice”, “harassment”, “worry”, “anxiety ”, “trouble”, “inconvenience”, 23 “time consumed “, “effort consumed “, “punishment”, “revenge” and “dark 24 cloud over my head” 25 26 Evidence of PW 2 27

PW 2 accepted and adopted the evidence given by PW 1 as it 28 mirrored the basis of her claim which is premised on the GOJ in Suit 29 No.154. 30 31

Nonetheless she personally felt she was a victim of the abuse of 32 process perpetrated by PINS. She felt it was ‘too much’ to be unjustly 33 accused of stealing confidential information belonging to PINS to benefit 34 the 1st and 5th Plaintiff when she was not even involved in the ground 1 operation involving co-ordinates. She felt that she was dragged in and 2 sued just because of her association with the 1st Plaintiff in the 3 telecommunication industry. 4 5 Defendant’s Case 6

Since the defendant elected to submit on no case to answer its 7 defence is rendered irrelevant, immaterial and not available for 8 consideration (see Sinarlim Sdn Bhd v Medallion Builders Sdn Bhd 9 (dahulunya dikenali sebagai RC-Soils (M) Sdn Bhd and others 10 application [2012] MLJU 847). 11 12 Submission of No Case to Answer and the Law 13

At the close of the Plaintiffs’ case the Defendant elected not to call 14 any witnesses and submitted there was no case to answer. 15 16

The legal position which stands when a party chooses to submit on 17 no case to answer has been well set out by the Federal Court in Syarikat 18 Kemajuan Timberline Sdn Bhd v Kerajaan Negeri Kelantan Darul 19 Naim [2015] 2 CLJ 1037 where it was held : 20 21 "[56] Learned counsel for the plaintiff argued that the Court of Appeal 22 ought not to disturb findings of fact by the High Court. He added that the 23 Court of Appeal had gone beyond its appellate powers in this case as 24 the reversal and substitutions of the findings of facts was wholly 25 unjustified and therefore the judgment of the Court of Appeal should 26 therefore be set aside. It was further submitted that the evidence led by 27 the plaintiff must be assumed to be true when the defendant elected not 28 to call any witnesses. On these submissions we have two observations 29 to make. The first is that the principle on which an appellate court could 30 interfere with findings of fact by the trial court is the plainly wrong test 31 (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; 32 [2005] 2 MLJ 10 and UEM Group Bhd v. Genisys Integrated Engineers 1 Pte Ltd & Anor [2010] 9 CLJ 785). And the second is that the burden of 2 proof at all times is of course borne by the plaintiff to establish on the 3 balance of probability the existence of a legally enforceable settlement 4 agreement (see Ranbaxy (Malaysia) Sdn Bhd v. El Du Pont De 5 Nemours and Company [2011] 1 LNS 16; [2011] 1 AMCR 857). In other 6 words, it was upon the plaintiff itself, and certainly not the defendant, to 7 discharge the burden of showing the settlement agreement had come 8 into existence. It is for the plaintiff to prove its case and satisfy the court 9 that its claim is well-founded before the court grants judgment on the 10 claim (see Pemilik Dan Kesemua Orang Lain Yang Berkepentingan 11 Dalam Kapal "Fordeco No 12" Dan "Fordeco No 17" v. Shanghai Hai 12 Xing Shipping Co Ltd [2000] 1 CLJ 605; [2000] 1 MLJ 449, Maju 13 Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd And Other Appeals 14 [2004] 4 CLJ 282; [2004] 4 MLJ 105 and Teh Swee Lip v. Jademall 15 Holdings Sdn Bhd [2014] 8 CLJ 451; [2013] 6 MLJ 32). It is true that in 16 the present case the defendant elected not to call any 17 witnesses. However, it is imperative to bear in mind that from the outset 18 the legal burden of the existence of the settlement agreement was with 19 the plaintiff as the claimant in the present action. By reasons of the legal 20 principles, the fact that the defendant led no evidence or call no 21 witnesses did not absolve the plaintiff from discharging its burden in law. 22 In this regard, in adopting the approach of the case of Storey v. 23 Storey [1961] P 63, Suriyadi JCA (as His Lordship then was) in Mohd 24 Nor Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor 25 [2008] 2 CLJ 369 recognised this to be the case as can be seen from 26 the following passage of His Lordship's judgment: 27 There are, however, two sets of circumstances under which a defendant 28 may submit that he has no case to answer. In the one case there may 29 be a submission that, accepting the plaintiff's evidence at its face value, 30 no case has been established in law, and in the other that the evidence 31 led for the plaintiff is so unsatisfactory or unreliable that the Court should 32 find that the burden of proof has not been discharged." 33 (Emphasis added) 34 35

In short, the court can only determine whether upon the evidence 1 adduced by the Plaintiff, documents admitted into evidence and the cross- 2 examination of the Plaintiffs’ witnesses whether a prima facie case against 3 the Defendant has been established or put in other words whether the 4 claim has a reasonable prospect of success (see judgement of Darryl 5 Goon J in Solsis (M) Sdn Bhd v Kenny Woo B’ng Tat & Anor [2020] 8 6 MLJ 695). 7 8 Findings of the Court 9

Central to the issues for determination in this case are the reasons 10 of the learned Judge in coming to his decision in Suit 154. It would be 11 inconvenient to incorporate the whole of the GOJ into mine but suffice if I 12 select a number of paragraphs to highlight and support the reasons why I 13 came to my decision. 14 15

It is my considered view the learned Judge in Suit No. 154 made 16 comprehensive, coherent and concise findings in coming to his conclusion 17 that the filing of the said suit was plainly and patently an abuse of process 18 19 Applicable Law on tort of abuse of process 20

In 2013 the Privy Council explained the nature of this tort via the 21 case of Crawford Adjusters & Ors v Sagicor general Insurance 22 (Cayman) Ltd & Anor [2013] 3 All ER 8 as follows : 23 24 “The essence of the tort is the abuse of civil proceedings for a 25 predominant purpose other than that for which they were designed. This 26 means for the purpose of obtaining some wholly extraneous benefit 27 other than the relief sought and not reasonably flowing from or 28 connected with the relief sought. The paradigm case is the use of the 29 processes of the court as a tool of extortion, by putting pressure on the 30 defendant to do something wholly unconnected with the relief, which he 1 has no obligation to do.” 2 3

The Malaysian courts recognize the tort of abuse of process via the 4 Court of Appeal case of Malaysia Building Society Bhd v Tan Sri 5 General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425. 6 Here the court outlined the elements to be proven in a claim based on the 7 tort of abuse of process as follows : 8 9 “In my judgement, the essential elements of the tort of abuse of process 10 are these :

The process complained of must have been initiated; 12 13

The purpose for initiating that process must be some purpose 14 other than to obtain genuine redress which the process offers. In 15 other words, the dominant purpose which the process was 16 invoked must be collateral, that is to say, aimed at producing a 17 result not intended by the invocation of the process; and 18 19

The plaintiff must have suffered some damage or injury in 20 consequence. 21 22 It is to be stressed that neither malice nor the termination of the 23 proceedings in the plaintiff’s favour are necessary elements of the 24 tort…..” 25 26

Thus, in order to succeed in this suit, it is incumbent upon the 27 Plaintiffs to show all the requisite elements of the tort of abuse of process 28 have been proved. The elements I refer to is as follows :

the process complained of has been initiated;

(ii) there was a collateral purpose proven and;

(iii) damage or injury was suffered by the Plaintiffs as a 32 consequence. 33

(iv) Has the process complained of been initiated? 1 The first hurdle for the Plaintiffs is to satisfy this Court whether the process 2 complained of has been initiated or not. In this regard I am in no doubt this 3 element has been satisfied. It is not disputed that Suit No. 154 was 4 completed and decided in favour of all the Plaintiffs.

Oblique motive/collateral purpose? 6 7

In so far as the 2nd element of the tort of abuse of process is 8 concerned, learned counsel for the Defendant in his submissions was at 9 pains to impress upon the court that the tort of abuse of court process is 10 a cause of action separate and distinct from an abuse of process in the 11 context of a striking out application pursuant to the ROC 2012. 12 13

Certainly it would be tempting to equate both in one and the same 14 category. However, what distinguishes one from the other is the presence 15 and the requirement of a collateral purpose in the tort. As was explained 16 by his Lordship Gopal Sri Ram CJA (as he then was) in Ungku 17 Nazaruddin’s case (supra) the purpose of initiating the litigation process 18 has to be a purpose other than to obtain a genuine legal redress, a 19 collateral purpose, a purpose aimed at producing a result not intended by 20 the invocation of the process. 21 22

It cannot and should not be equated with the reason simpliciter that 23 a suit was dismissed for it to amount to an abuse of process of the court. 24 This was explained by the High Court in the case of Visage Engineering 25 Sdn Bhd v Geopancar Sdn Bhd [2012] 1 LNS 286 as follows : 26 27 “It must be noted that the tort of abuse of process is not to be equated 28 with the simple dismissal of a suit on the basis that it amounts to an 29 abuse of process of the court. In essence, the threshold requirement to 30 make out a case of tort of abuse of process of court is high and it is not 31 sufficient to show the petition itself was dismissed…..those who pursue 1 an action under this head of tort must still prove the requisite elements 2 as set out in well-established cases and also ought to be pleaded in the 3 right perspective. Mere dismissal of a winding-up petition or suit on the 4 ground of abuse of process etc. per se will not attract the said tort.” 5 6

It is the Plaintiffs’ obligation to prove there was an oblique motive or 7 in other words a collateral purpose on the part of PINS in filing the Suit No 8 154 in order to succeed in this present suit. 9 10

The meaning of collateral purpose was well explained in Crawford 11 Adjusters (supra) and I do not propose to repeat it here. 12 13

In my considered view the existence of the collateral purpose behind 14 PINS filing of Suit No. 154 has been more than amply satisfied with the 15 pronouncement by the Learned Judge in the GOJ. In his usual objective 16 and analytical scrutiny of the evidence and the issues the Learned Judge 17 had concluded and made findings in regard to the collateral purpose 18 behind PINS initiation of Suit No. 154. 19 20

The Learned Judge had pondered the question as to why the claim 21 and the multitude of allegations against all the Plaintiffs was not raised in 22 the earlier suit. In paragraph 49 of the GOJ the learned Judge raised this 23 question : 24 25 “…why PINS did not make the present claim as part of its counter-claim 26 in suit 1041?” 27 28

The question predominant in his Lordship’s consideration was 29 “whether the present suit was an afterthought and a retaliation for the 30 outcome in suit 1041 and/or filing of the winding up petition by UDSB 1 against PINS OSC?” (see paragraph 52 GOJ). 2 3

His Lordship’s decision was affirmatively as follows : 4 5 “[52.1] In this regard, based at the chronology of events and the manner 6 in which the case has been pleaded and the evidence of PW 1 and PW 7 2, it is quite clear from the narrative of events and conduct of the 8 parties, that the present suit is an afterthought and quite possibly 9 filed in order to neutralize, so far as possible the outcome that was 10 reached in the earlier proceedings which did not favour the 11 plaintiff. 12 [52.2] In this regard I cannot ignore the possibility that the present 13 suit was filed with an oblique motive or a collateral purpose. 14 [52.3] On that analysis, and based on the narrative of facts alluded to 15 earlier, I am convinced that this suit is plainly and patently an abuse 16 of process. (my emphasis) 17 18

Counsel for the Defendant had with his usual eloquence contended 19 that the abovesaid findings made by the Learned Judge in Suit No. 154 20 could not in itself prove the elements of the tort of abuse of process to the 21 instant suit. On that basis counsel concluded that the Learned Judge was 22 addressing his mind pertaining only to the issues of estoppel and res 23 judicata in the case. Counsel argued that the High Court in Suit No. 154 24 was not tasked to make any finding of fact on the purpose of filing the civil 25 claim or that it was filed for a collateral purpose. Premised on that counsel 26 was therefore of the opinion that the only basis for the learned Judge to 27 arrive at his finding on abuse of process was estoppel and res judicata. 28 Thus, it was contended that the learned Judge was only making a finding 29 of fact that the filing of Suit No. 154 was a procedural abuse of process 30 under the ROC 2012. I was not convinced. 31 32

In my considered view the trenchant findings of the Learned Judge 1 in Suit No. 154 left no room for any lingering doubt His Lordship was 2 convinced that Suit No. 154 was filed for a collateral purpose, an oblique 3 motive and not merely on the issues of estoppel and res judicata. The 4 court can only make findings from the records, the evidence before it and 5 from the GOJ of the learned Judge. I have scrutinized and considered the 6 GOJ carefully and it is my conclusion that the learned Judge had spent a 7 good part of his judgment on establishing that PINS had committed the 8 tort of abuse of process. His Lordship was constantly mindful of the 9 oblique motives and collateral purpose of PINS especially after assessing 10 the testimonies and credibility of the witnesses Zadey and Iwan. 11 12

To my mind the learned Judge was not at all concerned with the 13 procedural abuse of process pursuant to the ROC 2012. Were it so His 14 Lordship would have plainly stated so and would have made clear 15 references to Order 18 rule 19 of the ROC 2012. It would be pertinent too 16 to add that Suit No. 154 was never an application under Order 18 Rule 19 17 ROC 2012. 18 19

I find that it was plain to see that the real or predominant purpose of 20 PINS in bringing the action was not to obtain genuine redress for its 21 grievances. The learned Judge made that clear in his GOJ. In paragraphs 22 52.1 and 52.2 of the GOJ the learned Judge recognized the Defendant’s 23 real or predominant purpose of filing the suit when he held that from the 24 narrative of events and conduct of parties Suit No. 154 was filed in order 25 to neutralize the outcome reached in Suit No. 1041 which did not favour 26 them. 27 28

The gist of PIN’s complain in the pleadings was that there was a 29 breach of fiduciary duties or obligations by parties to the joint venture 30 agreement, whereby projects that should have been undertaken by the 1 Plaintiffs were diverted to Bunga Raya (see Paragraph 11 GOJ). 2 3

During the trial PINS’ complaints were in regard to inter alia the 4 construction and alleged ownership by Bunga Raya of 18 small and mini 5 structures, which was constructed for Celcom and which according to 6 BRSB, was done based on co-ordinates given to them by Celcom (see 7 Paragraph 16.3 GOJ). 8 9

That changed midway through examination of PINS witnesses. 10 Paragraph 51.1 of the GOJ records this observation : 11 12 “First, is the content of the plaintiff’s pleaded case (per the ASOC) and 13 the attempt at departing from it in material aspects during the trial.” 14 15

However the issue of “ownership” of small and mini structures was 16 not specifically raised in the ASOC and therefore the Learned Judge 17 decided to disregard that allegation (see Paragraph 65 GOJ). 18 19

It is evident from the testimonies of Zadey and Iwan that PINS was 20 never truly interested to obtain the reliefs prayed for in the ASOC. PINS 21 showed their hand when Zadey in his witness statement alleged there was 22 an agreement that the 5th Plaintiff could build but not own small and mini 23 structures. Certainly without a doubt this evidence constituted an 24 abandonment of PINS’ original pleaded claim. To make matters worse 25 under rigorous cross-examination the witness caved in and admitted that 26 even this reason was not true. This confirmed the Plaintiffs’ claim that for 27 all intents and purpose PINS did not have a true grievance for Suit No.

The learned Judge was conscious of that and pinned this as the 29 collateral purpose which was the predominant underlying reason for the 1 suit. 2 3

Both PW 1 and PW 2 testified to this fact and this can be seen from 4 their own words what they thought of the suit against them. Both saw the 5 allegations as spurious lies and an act of revenge personally against 6 them. In his evidence PW 1 was asked to explain why he claimed that it 7 was a means of ‘revenge’ and he replied that Suit No. 154 was built on a 8 lie from start to finish and that Zadey and Iwan on behalf of PINS did not 9 have any evidence to support their claim but still they went ahead purely 10 as a retaliation against PW 1. PW 1 pointed out that Suit No. 154 was filed 11 while in the process of exhausting the appeal process in Suit No. 1041 12 and it was filed for no other reason than as a tool to exert pressure on 13 Urban Domain. PW 1 further recounted that he and Iwan held discussions 14 to settle Suit No. 154 and Suit No. 1041 amicably but he said he would 15 not agree to accept Suit No. 154 as a bargaining chip. Under cross- 16 examination it was put to PW 1 that the discussion took place only during 17 formal mediation. PW 1 disagreed and asserted that there were 18 discussions with Iwan at other times and not only during the mediation. 19 20

Azrina, PW 2 too in her testimony alleged that she was dragged in 21 and sued as a retaliation simply because of her association with PW 1 in 22 the telecommunication industry. 23 24

The defence argued that the Plaintiffs claim should fail as the 25 allegation of collateral purpose was not pleaded specifically in the SOC. It 26 was contended that merely relying on the cause papers and GOJ of the 27 High Court in Suit No. 154 is insufficient as no further particulars were 28 pleaded of the tort alleged. Counsel for the Defendant advanced the 29 submission that issues such as “revenge”, “punishment”, “personal attack” 30 and “bargaining chip” were never pleaded. Counsel contended that since 1 parties are bound by their pleadings, they cannot be allowed to improve 2 their pleadings through their respective testimonies. It was further 3 contended that merely relying on the observations of the High Court Judge 4 in Suit No. 154 alone would be inadequate to prove the Plaintiff’s claim 5 that the Defendant is liable for the tort of abuse of court process. 6 7

Having considered the pleadings as a whole and in particular to 8 Paragraphs 10 to 18 of the SOC I am of the considered view that it is not 9 necessary to use those actual phrases in the pleadings. The collateral 10 purpose can be gleaned from a number of ways among them would be 11 from the facts and circumstances of the particular case. The collateral 12 purpose can also be obtained and discerned from the testimonies of the 13 witnesses and the documentary evidence used to support the claim. 14 15

I noted that those were the words used by both witnesses to 16 describe and express their thoughts and their feelings from a personal 17 point of view after judgement was pronounced in their favour. In particular 18 I refer to the answers given by PW 2 in cross-examination : 19 20 CTJ: Now, questions 14 and 15. You used phrases and words such as 21 ‘to retaliate against me’, ‘association with Haji Kamal’ and ‘Suit 154 is an 22 obvious lie’. Again, would you agree with me that these words are not 23 pleaded and no particulars of these words are pleaded in the Statement 24 of Claim? 25 PW 2: In our Statement of Claim, the whole judgement is pleaded and 26 these words are coming from the judgement itself. The word retaliation 27 is from the judge himself. So, its all actually pleaded. 28 DC: So, only the word retaliation is from the judgment. Correct? 29 PW 2: Yeah. Revenge is another word for the retaliation, which is 30 covered under the judgement, which is covered under the associates. 31 CTJ: Okay. So, you are saying, because you have pleaded the grounds 1 of judgement in your Statement of Claim, hence everything else that 2 comes from that is taken as pleaded. Is that what you’re saying? 3 PW 2: Yes 4 5

It is pertinent to point to the evidence of Iwan in Suit No. 154 at the 6 particular moment where he capitulated and agreed that the only reason 7 the allegations were levelled against the 4 individuals is because of their 8 relationship with Bunga Raya. This admission is significant and that in 9 itself shuts the door to any doubt whatsoever in regard to the defence 10 contention that the Plaintiff had failed to prove the collateral purpose 11 behind the filing of Suit No. 154. 12 13

I now refer to Paragraph 12 of the SOC which reads as follows : 14 15 “In particular, the Plaintiffs will rely on the Supplementary Witness 16 Statement of Encik Zadey Che Wan Bin Abdullah Fadzil of the 17 Defendant, wherein his evidence at A 1 reads “Hence, we made the 18 decision to allow Ahmad Kamal to build for others but not to own any 19 Infrastructures.” 20 21

I also refer to Paragraph 13 of the SOC whereby it was pleaded as 22 follows : 23 24 “The Plaintiffs aver that the aforesaid evidence constituted an 25 abandonment of the pleaded claim in the SUIT.” 26 27

In Paragraphs 15 and 18 of the SOC it was specifically pleaded that 28 the Defendant continued and or expanded and or aggravated the abuse 29 of process by the appeal to the Court of Appeal and thereafter by the 30 application for leave to appeal to the Federal Court. 31 32

I would respectfully agree with the submissions of counsel for the 1 Plaintiffs’ that after abandoning its pleaded case, after PINS’ witnesses 2 caved in and capitulated in no uncertain terms, why then did they continue 3 to pursue the appeal process. By filing the appeals PINS had continued 4 and further aggravated the abuse of court process. 5 6

More importantly I take note that the Learned Judge made findings 7 that PINS failed to lead evidence to support its pleaded and unpleaded 8 case. In Paragraphs 69, 70, 71, 76, 80, 85 and 89 of the GOJ the learned 9 Judge made it plainly clear there was no basis and no evidence for PINS 10 allegations against the Plaintiffs. The learned Judge found gaps in PINS 11 claim. This is seen in Paragraph 72 of the GOJ where it was held “the 12 failure to call someone from the Telco created a gap in the Plaintiff’s case 13 theory”. 14 15

I also refer to Paragraph 84 of the GOJ where the learned Judge 16 held : 17 18 “…thus, PW 1’s own evidence has largely demolished the plaintiff’s 19 basic structure of the case”. 20 21

What I consider quite damaging is the finding in Paragraph 85 in the 22 GOJ where it was held : 23 24 “…the plaintiff did not lead any or any credible evidence”. 25 26 To make matters worse the Learned Judge observed that : 27 28 “PW 1 and PW 2 made strong allegations in their witness statements 29 but when confronted during cross-examination they ‘backed off’.” 30 31

In addition to the above, I would agree with the Plaintiffs’ graphic but 1 rather appropriate description that they were “mucked around” from start 2 to finish by PINS. Support for this view can be found in these following 3 instances : 4 - The crafting of the Amended Statement of Claim without 5 supporting evidence and/or with documents that proved 6 otherwise; 7 - In mid-trial by Zadey’s Supplemental Witness Statement 8 which is a clear abandonment of its pleaded case; 9 - The timing of Zadey’s Supplemental Witness Statement which 10 sought to introduce a new case in the middle of the trial and in 11 the middle of Iwan’s ongoing testimony in cross-examination; 12 - Admission by Zadey in cross-examination that there was no 13 waiver by PINS to allow BRSB to build but not own small and 14 mini structures in Perak; 15 16

To add salt to the wound the Plaintiffs were forced to endure being 17 mucked around yet again for the appeal to the Court of Appeal as well as 18 for the leave application to the Federal Court. 19 20

As for PW 2, her plight was made worse by the mere fact that she 21 was associated with PW 1 and/or to the 5th Plaintiff. I wholly agreed with 22 her lament that it was ‘too much’. I found it absolutely reasonable for her 23 to say that it was a retaliation against her, revenge and to punish her by 24 association. 25 26

The above proved that PINS had no true grievances with the 27 Plaintiffs. Hence it is my considered view that the collateral purpose for 28 which the tort of abuse of court process is founded on had been 29 satisfactorily proven on a balance of probabilities by the Plaintiffs’ 1 witnesses. 2 3

Having observed PW 1 and PW 2 while testifying I found them to be 4 reliable and credible witnesses. I found there was no reason to doubt their 5 testimonies. I accept their evidence. They were convincing and gave 6 evidence forthrightly and were unshaken during cross-examination. 7 8

In the circumstances, I am of the considered view that the Plaintiffs 9 had succeeded in proving that Zadey and Iwan had through their evidence 10 in Suit No. 154 admitted to having had a collateral purpose in filing their 11 suit. That evidence constituted in my view a clear and present collateral 12 attack by the Defendant. It could not have gotten any clearer than those 13 admissions made by the Defendant’s own witnesses. 14 15

I come now to the decision of Justice Mohd Nazlan Ghazali in Yong 16 Toi Mee & Anor v Malpac Holdings Berhad & Ors [2017] MLJU 1674 17 referred to by counsel for the Defendant. I find no reason to disagree with 18 counsel for the Defendant’s contention that in that case there were overt 19 acts carried out which showed the defendants’ collateral purpose in filing 20 all the various applications and suit thus leaving the High Court with no 21 other option but to conclude that the tort of abuse of court process had 22 been successfully made out. 23 24

I would however with utmost respect disagree with defence 25 counsel’s contention that unlike the findings of the Court in Yong Toi Mee 26 (supra), the findings of the learned Judge in Suit No. 154 cannot in itself 27 prove the elements of the tort of abuse of court process. On the contrary 28 I am satisfied that the Plaintiffs’ pleaded case, the evidence led based on 29 the pleaded case, the testimonies of the witnesses and on the GOJ have 30 shown that this too is an exceptional case on its own merits, where the 1 findings of the learned Judge showed that the Defendant never had the 2 intention to obtain genuine redress as per the pleadings. 3 4

Having reviewed the history of the litigation and the evidence led by 5 the Plaintiffs, I respectfully agree that the purpose underlying the pursuit 6 of Suit No. 154 as found in the findings of the learned judge was for a 7 collateral purpose, intended to produce a result other than those reliefs. 8 That conduct is discernable from the evidence of the two key witness i.e. 9 Zadey and Iwan. Therefore, while I agree that the facts of the case 10 presently before me are not similar or in tandem with that found in Yong 11 Toi Mee’s case (supra), nevertheless on its peculiar facts and 12 circumstances possesses all the trappings of the tort of abuse of process. 13 14

The Defendant could have rebutted all of the Plaintiffs’ assertions 15 but they have taken the path of choosing not to give evidence. In the 16 circumstances I am guided by the outcome of the decision in the Federal 17 Court case of Takakao Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381 18 where Gopal Sri Ram FCJ (as he then was) enunciated the consequences 19 which followed when a defendant studiously refrained from giving 20 evidence at the end of the Plaintiff’s case. It was held : 21 22

Two consequences followed when the first respondent who was 23 fully conversant with the facts studiously refrained from giving evidence. 24 Firstly, the evidence given by the appellant ought to have been 25 presumed to be true. The judge was under a duty to accept the 26 appellant’s evidence as true in the absence of any evidence from the 27 first respondent going the other way. His failure to direct himself in this 28 fashion thereby occasioned a serious miscarriage of justice. Secondly, 29 the court ought to have drawn an adverse inference against the first 30 respondent on the amount of the appellant’s contribution to the purchase 31 price as well as the existence and the terms of the mutual understanding 1 or agreement that she had with the first respondent. The trial judge in 2 the present case ought to have held that the failure of the first 3 respondent to give evidence apart from discrediting her case 4 strengthened the appellant’s case on those vital points that lay at the 5 axis of the dispute between the parties. Instead, he treated the first 6 respondent’s failure to appear and give evidence as a matter of no 7 apparent consequence. His nondirection upon such a crucial point 8 amounted to a misdirection which occasioned a miscarriage of justice. 9 A reasonable tribunal correctly directing itself on the facts and the 10 relevant law would have held that the appellant had indeed contributed 11 RM194,610 towards the purchase price of the building; that there was a 12 mutual understanding between the appellant and the first respondent 13 that they would be beneficial co-owners of the property in question in 14 equal shares; and that the first respondent had acted in breach of that 15 understanding. 16 ….

In the instant case, the Court of Appeal should have been far 18 more analytical of the facts and the proceedings at first instance. In 19 particular, it had failed to refer to the consequence of the first respondent 20 having studiously refrained from entering the witness box. Indeed, it was 21 the first respondent’s bounden duty to have informed the trial court of all 22 the material circumstances peculiarly within her knowledge. The Court 23 of Appeal’s judgment was equally flawed as that of the trial judge.” 24 25

Coming back now to the present case, as I had alluded to earlier I 26 found both the Plaintiffs’ witnesses to be reliable and credible witnesses 27 and I accept their evidence to be the truth. It is evident that the failure of 28 the Defendant to give evidence lent further weight and gave strength to 29 the Plaintiffs’ case especially on the vital points that lay at the “axis” of the 30 dispute between the parties. The Defendant led no evidence to explain 31 why when it was put to Iwan that the only reason allegations were made 32 of the Plaintiffs is because of their relationship with Bunga Raya. That 33 admission to me was the proverbial last nail in the coffin for the Defendant. 34 I find that the failure of the Defendant to appear and give evidence to be 1 a matter of immense serious consequences. In my considered opinion the 2 failure of the Defendant to call its witnesses gives me the right to draw an 3 adverse inference against the Defendant under section 114(g) of the 4 Evidence Act 1950 which reads as follows : 5 6 “The Court may presume the existence of any fact which it thinks likely 7 to have happened, regard being had to the common course of natural 8 events, human conduct and public and private business in their relation 9 to the facts of the particular case. 10 The Court may presume… 11

that evidence which could be and is not produced would if produced 12 would be unfavourable to the person who withholds it…” 13 14

I am inclined to hold the view that the Defendant’s witnesses 15 deliberately refrained from entering the witness box for no reason other 16 than in view of the less than stellar evidence given in Suit No. 154. 17 18

Reverting now to the issue at hand, I am satisfied and it is my finding 19 that the Plaintiffs had on their pleaded case and through their testimonies 20 successfully discharged their burden of proof and had proven their case 21 on a balance of probabilities. 22 23 Damages 24

The Plaintiffs have sought general and special damages against the 25 Defendant. 26 27

In Paragraph 21 of the SOC the Plaintiffs have pleaded that they 28 were injured in their reputation and were put to considerable trouble, 29 inconvenience, anxiety and expenses and have suffered loss and 30 damage. 31

SP 1 in his testimony described his suffering which he averred ought 1 to be compensated by an award for damages : 2 Q46: Damages for what? 3 A46: Damages for the following:

Injustice 5

Harassment 6

Inconvenience 7

Trouble 8

Worry 9

Anxiety 10

Time consumed 11

Effort consumed 12

Revenge 13

Punishment 14

Dark cloud over my head for five years. 15 16 SP 2 in her Witness Statement testified as follows : 17 18 “Q16: What are you claiming for in this action? 19 A16: Damages for being a victim of a very blatant lie and a “TOO 20 MUCH” Suit 154. Damages for all the suffering I had to endure for these 21 five years. These suffering are well expressed by Hj Kamal in his witness 22 statement. I adopt the way he expressed these sufferings.” 23 24

The witnesses frankly admitted they could not produce any medical 25 report to support their evidence that they had suffered any particular form 26 of medical condition as a consequence of the suit brought against them. 27 28

Counsel for the Defendant urged the court not to accept the claim 29 for mental suffering and anguish described by PW 1 and PW 2. It was 30 contended that almost all the items listed in (a) to (k) above were not 31 pleaded and were simply not supported by documentary evidence. It was 32 further contended that the Plaintiffs had failed to discharge their burden in 1 proving those losses. 2 3

In view of the above it was the contention of counsel for the 4 Defendant that while general damages could usually be awarded in a 5 claim based on tort, the heads of damages relied on by the Plaintiffs do 6 not fall within the recognized definition of heads of damages and therefore 7 compensation ought not to be awarded. 8 9

The question for consideration now before this court is to determine 10 whether a victim of a tort of abuse of court process can be compensated 11 for the pain and suffering they experienced. It will be recalled that both 12 PW 1 and PW 2 described themselves as victims of the Defendant’s filing 13 of Suit No. 154 against them. 14 15

A like issue came up for consideration before Justice Wong Kian 16 Kheong in the case of Sonic Finance Inc & Anor v Halim Mohammad 17 & Ors [2019] 1 LNS 651. In Paragraph 25 of his judgement the learned 18 Judge held the view that if a victim of a tort of abuse of court process has 19 suffered pecuniary loss which exceeds the amount of costs awarded in 20 the victim’s favour against a tortfeasor, there should be no reason why the 21 victim is not able to recover such a loss. 22 23

I am in agreement with that view. It is my finding that a party who 24 has succeeded in proving that the tort of abuse of court process had been 25 practiced upon him is not only entitled to be awarded damages but is also 26 entitled to compensatory damages such as legal fees and expenses 27 incurred to defend the suit as well as for exemplary, punitive and 28 aggravated damages upon proof of the same. 29 30

In Sonic’s case (supra) the court considered the following 1 questions :

Whether a victim of a tort of abuse of court process is required 3 to prove malice on the part of the party who has committed the 4 tort before the court can award damages; 5 6

(ii) Whether the victim is confined to a remedy for costs of the suit 7 filed by the tortfeasor against the victim which has been 8 dismissed or struck out; and 9 10

(iii) Whether the court should order the tortfeasor to pay the 11 following kinds of damages to the victim due to the 12 commission of the tort of abuse of court process - 13 14

compensatory damages in respect of – 15

legal fees and expenses incurred by the victim to 16 defend the dismissed suit;

(ii) anxiety and distress caused to the victim by the 18 dismissed suit; and 19

(iii) the adverse effect of the dismissed suit on the 20 victim’s good name and business reputation 21

exemplary or punitive damages; and 22

aggravated damages. 23 24

The learned Judge referred to a plethora of cases and astutely 25 concluded on the following : 26 - malice is not a consideration when awarding damages; 27 - the affected party is not merely confined to a remedy for costs 28 of the suit filed but is entitled to claim for loss or damage 29 suffered by them beyond those amounts; 30 - claims for anxiety, distress, loss of good name and reputation 1 is recoverable. 2 3

Both PW 1 and PW 2 described their feelings, the loss, the anxiety 4 they experienced all due to the suit which they felt was unjustly filed 5 hanging over their heads akin to the ‘sword of Damocles’. 6 7

I share the view of the learned Judge in Sonic Finance (supra). As 8 aptly put by the learned Judge, “this will cause an injustice to victims of a 9 tort of abuse of court process because these victims cannot claim 10 damages for loss or damage suffered by them beyond the amounts of 11 costs awarded by the court in the suits in question.” 12 13

It is my considered view that the Plaintiffs had successfully proven 14 that they suffered the whole gamut of emotional and pecuniary losses as 15 described by them in their testimonies in court. I cannot agree that these 16 are the usual feelings parties will encounter when they are faced with a 17 suit against them as suggested by counsel for the Defendant. Here the 18 Plaintiffs had proven that Suit No. 154 should never have been filed. 19 20

As discussed earlier they were put to considerable trouble, 21 inconvenience, anxiety and expenses. The Plaintiffs are not without 22 remedy for those hardship mentioned above. These are certainly 23 recognized heads of loss and damage for which this Court ought to make 24 an award. Having listened to PW 1 and PW 2, I was taken by their 25 testimonies on this score. These evidence of suffering described by them 26 deserve a measure of award from the Court. I respectfully disagree with 27 learned counsel for the Defendant that the Plaintiffs should not be 28 compensated for those losses. I am of the opinion that the wronged party 29 must have redress if he has successfully shown that there was an abuse 30 of court process on the part of the other party. If I were to accept the 1 contention of counsel for the Defendant, this will cause an injustice to the 2 Plaintiffs. 3 4

I lean towards holding the view that there is no necessity to produce 5 a medical certificate to prove that anxiety and distress is a medical 6 condition. I accept the position in law found in the Sonic Finance (supra) 7 case where the learned Judge there too found it unnecessary to call for 8 the requirement of a medical certificate as proof. 9 10

Counsel for Plaintiffs in their submissions suggested a global sum 11 of RM400,000.00 be awarded for the 3 parties comprising of the 1st 12 Plaintiff, Bunga Raya and Urban Domain and RM100,000 for Azrina. I 13 have taken into consideration that PINS filed Suit No. 154 making serious 14 allegations of misappropriation of confidential information and trade 15 secrets against all the Plaintiffs and had demanded for an account of all 16 proceeds in the hands of the parties. In her evidence Azrina could not 17 contain her dismay at being accused of stealing information. When quired 18 why she used the word “steal” information she replied that even though 19 PINS used the polite word “misappropriation” she knew that as a layman 20 “misappropriation” means or is akin to “steal” and that was too much for 21 her. 22 23

To put it in a nutshell I found that the Plaintiffs had successfully 24 proven the evidential burden of proving the loss suffered on a balance of 25 probabilities i.e. I find as follows :

the loss the Plaintiffs suffered is not too remote to be 27 recoverable from the Defendant;

the Plaintiffs’ loss is caused by the tort perpetrated by the 29 Defendant; 30

I am tasked with the unenviable duty to quantify the compensatory 1 damages that should be awarded to each of the Plaintiffs. I kept in mind 2 that compensatory damages should not be exponential but instead should 3 as nearly as possible put the wronged party in the same position as the 4 wronged party would have been in if the tort of abuse of court process had 5 not been committed. I kept in view that the Plaintiffs should be adequately 6 compensated, not unjustly enriched or overcompensated at the same 7 time. 8 9

Based on the evidence adduced and the relevant case law, I find 10 that the Plaintiffs have proven through supporting documents the incurred 11 legal fees and expenses in the sum of RM1,295,056.00 for defending Suit 12 No. 154. Accordingly the Plaintiffs are entitled to claim the said sum. 13 14

I exercise my discretion to award a global sum of RM100,000 each 15 to the 1st, 5th and 6th Plaintiffs and RM60,000 to the 3rd Plaintiff. In my 16 evaluation I did find the contentions of counsel for the Plaintiffs on 17 quantum to be of merits. I am of the view that an award of RM100,000 18 each to the 1st, 5th and 6th Plaintiffs and RM60,000 to the 3rd Plaintiff is a 19 sum that is appropriate, fair and reasonable and which would adequately 20 compensate all the Plaintiffs without causing the Defendant to be 21 adversely affected or economically brought to its knees but yet drive home 22 the point that a party must realize that there is a price to pay when suits 23 are filed not for a genuine redress but for some other dominant insidious 24 collateral purpose. 25 26 Conclusion 27

In view of the foregoing reasons, I find that the Plaintiffs have 28 succeeded in proving their case against the Defendant on a balance of 29 probabilities. 30

I therefore allowed the reliefs prayed for by the plaintiffs in the terms 1 stated earlier together with interest. I also ordered costs for the Plaintiffs. 2 3 Dated 09 March 2022. 4 5 6 7 8 (JULIE LACK) 9 Judicial Commissioner 10 High Court of Malaya 11 Shah Alam, Selangor Darul Ehsan 12 13 14 15 16 17 18 19 20 21 22 Counsel 23 For the Plaintiff : 24 Leong Kwong Wah with Vincent Lim Seng and Steven Tan Chee Qian 25 (MESSRS. DENNIS NIK & WONG) 26 27 For the Defendant : 28 Razlan Hadri Zulkifli with Chai Tze Jing 29 (MESSRS. GAN, HO & RAZLAN HADRI) 30