Khatijah binti Md Ibrahim v Northern Skyline SDN BHD (PA-22NCvC-241-12/2019)

KHATIJAH BINTI MD IBRAHIM

MANSOR BIN ABDUL MANAN (NO. K/P: 660316-07-5185) (Sebagai Wakil melalui Surat Kuasa Wakil No. Pendaftaran 6876/2018) …PLAINTIF-PLAINTIF DAN NORTHERN SKYLINE SDN BHD (No. Syarikat: 834668-A) …DEFENDAN JUDGMENT (POST-TRIAL: SUIT TO IMPEACH AN EARLIER JUDGMENT) PRELUSION [1] The Plaintiffs are mother and son. The 1st Plaintiff is the mother (P1). The 2nd Plaintiff is the son (P2). P1 owns a piece of land under the title: Geran 21594, Lot 3, Seksyen 5, Bandar Georgetown, Daerah Timur Laut, Pulau Pinang (Lot 3). [2] There was a disputed transaction to sell Lot 3 to the Defendant (D). It was disputed because P1 asserted that there was no contract to sell Lot 10/03/2025 22:43:05 PA-22NCvC-241-12/2019 Kand. 183 Page 2 of 31 3 to D. Oppositely, D asserted that there was indeed a contract to sell and buy Lot 3. [3] In 2014, D filed a suit against P1. The suit was civil suit No. 22NCVC-97-06/2014 (Suit 97). D sought the relief of specific performance—for P1 to specifically perform the sale and purchase agreement between D and P1 for Lot 3. The High Court, presided over by Justice Nantha Balan (Justice Balan), granted judgment in favour of D. The High Court granted the order for specific performance (SP Order). This meant that P1 was ordered to sell and transfer Lot 3 to D. [4] P1 appealed to the Court Of Appeal (CA). The CA dismissed her appeal. She applied for leave to appeal further to the Federal Court (FC). The FC refused her the leave to appeal further. [5] In 2019, P1, with P2, filed this civil suit No. 22NCVC-241-12/2019, to impeach the High Court’s judgment in Suit 97 i.e. to set aside the SP Order (this impeachment suit). [6] Should the SP Order (the High Court judgment in Suit 97) be allowed to be impeached and thus set aside? PRELIMINARIES [7] First—it is worth noting that D applied to summarily strike out this impeachment suit. In 2020, the High Court, presided over by Justice George Varughese, struck it out. P1 and P2 appealed to the CA. Page 3 of 31 [8] In 2020, the CA allowed their appeal. This impeachment suit was reinstated and remitted back to the High Court for trial. D applied for leave to appeal to the FC against the decision of the CA. [9] In 2023, the FC refused D the leave to appeal further. The CA’s decision stood. This impeachment suit was to proceed to trial. [10] The trial took place over three days in 2024. [11] Second—the parties’ witnesses. P1 and P2 both testified. They also subpoenaed Mr. Allen Choong to testify for them. Mr. Allen Choong is the lawyer who averred in Suit 97 that he represented P1 and P2 in the sale and purchase transaction for Lot 3 (but this averment was refuted by P1 and P2). [12] D called three witnesses. The first was Miss Adelyn Chong: D’s lawyer who had conduct of the documentation work for the sale and purchase of Lot 3. The second was Mr. Ooi Saw Han: D’s former managing director (Mr. Ooi). The third was Mr. Tan Hock San: D’s present managing director. THE LAW ON IMPEACHING A JUDGMENT [13] As the purpose of this impeachment suit is to set aside the High Court’s judgment in Suit 97, I am minded to heed the principle that even a final judgment or order of a Court can be impeached and as a result be set aside, on grounds of illegality (made in contravention of written law) or fraud—Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Page 4 of 31 Berhad [1998] 1 MLJ 393 (FC); [1998] 1 AMR 909; [1998] 2 CLJ 75; [1998] 1 MLRA 183. [14] This means that in this impeachment suit, P1 and P2 have the burden of proving that the High Court judgment in Suit 97 was tainted by illegality or fraud, to the extent that the judgment should be set aside. [15] The merits of Suit 97 were already canvassed in the High Court, and the correctness of the High Court judgment in Suit 97 was already determined on appeal to the Court Of Appeal and at the Federal Court— unless the factors of illegality or fraud directly bear upon the merits of the parties’ cases and the correctness of the judgment, to the extent that justifies setting aside the High Court judgment in Suit 97. Setting aside the High Court judgment in Suit 97 is to extinguish or to undo the judgment. The burden on P1 and P2 is hence a heavy one. CHRONOLOGY OF PERTINENT FACTS SUBSTANTIATED BY THE DOCUMENTARY EVIDENCE [16] I set out below a brief chronology of the facts that are pertinent to this impeachment suit, and which are substantiated by the documentary evidence—

December 2012 (18.12.2012)—P2 issued (signed) the Letter Of Intent (LOI) to Mr. Ooi or his nominee, offering to sell Lot 3 at the price of RM130.00 per square foot.

January 2013 (16.1.2013)—D: Northern Skyline Sdn Bhd (who is Mr. Ooi’s nominee), through its solicitors (San & Associates), wrote to P1’s solicitors (Allen & Associates) to Page 5 of 31 accept P2’s offer to sell Lot 3 at RM130.00 per square foot. Calculated at RM130.00 per square foot, the purchase price amounted to RM2,633,451.60. D enclosed a cheque for RM263,345.16, as the 10% deposit towards the purchase price. One of the conditions that D placed on the transaction was for P1 to cause the owner of Lot 39, Section 5, Town of Georgetown, North East District, Penang (Lot 39) to sell Lot 39 to D at the same price of RM130.00 per square foot as well (Lot 39 condition).

Note: I will refer to D’s solicitors: San & Associates as “San”. And I will refer to P1’s solicitors: Allen & Associates as “Allen”. I may refer to P1 and P2 together as “Ps”.

29.1.2013—P1’s solicitors (Allen) cashed in the 10% deposit cheque and verified that P1 accepted D’s terms and conditions for the sale and purchase of Lot 3, except for the Lot 39 condition. In other words, P1 did not wish to be bound to the Lot 39 condition.

February 2013 (4.2.2013)—D’s solicitors (San) wrote to P1’s solicitors (Allen) to confirm D’s agreement to P1’s terms, and informed P1 that they (San) would prepare the draft sale and purchase agreement (SPA) for P1’s approval.

March 2013 (5.3.2013)—D’s solicitors (San) emailed P1’s solicitors (Allen) attaching a draft SPA for P1’s approval.

Between 5.3.2013 to 7.3.2013—the parties and their solicitors worked on finalising the terms of the SPA. Page 6 of 31

7.3.2013—There was a meeting at D’s solicitors’ (San’s) office to conclude the terms of the SPA. Present were: P2 (as P1’s representative), Mr. Allen Choong as P1’s solicitor, Mr. Ooi and Mr. Tan Hock San (as D’s representatives), and Miss Adelyn Chong as D’s solicitor. Also occurring on this date—D entered a private caveat on Lot 3, on the ground of P1’s sale of Lot 3 to D.

14.3.2013—P1 refused to sign the SPA. As a result, P1’s solicitors (Allen) stated that:

despite several meetings where P2 was present, P2 insisted that the terms of the SPA were not finalised;

(ii) P2 “apparently” did not appoint them (Allen) to act for P1 in the transaction;

(iii) P1’s solicitors were “actually” Tan Siew Kin & Associates (TSKA);

(iv) P2 instructed them (Allen) to return the 10% deposit that was paid over to them earlier by issuing a cheque for that amount.

26.3.2013—D’s litigation solicitors: CP Tang & Partners (CP Tang) wrote to TSKA to ask TSKA if they had “indeed taken over the conduct” of the transaction from Allen.

27.3.2013—TSKA responded to D’s solicitors (CP Tang) by stating:

“We do not know what matter you are referring to”;

(ii) “We have no instructions from the registered proprietor”; and Page 7 of 31

(iii) “We cannot confirm” (that TSKA had taken over the conduct of the transaction from Allen).

April 2013 (11.4.2013)—Allen returned the 10% deposit to San by sending them a banker’s cheque (as distinct from a cheque drawn on a current account).

April 2013—D filed the precursor Originating Summons (OS) No. 24NCVC-612-04/2013 against Ps. This OS was later converted into Suit 97 (a Writ action). D’s prayers included the prayer for the SP Order—the specific performance of the sale of Lot 3 to D at the price of RM130.00 per square foot.

November 2013 (20.11.2013)—Allen wrote a reminder to San to state that:

Allen’s banker’s cheque for the 10% deposit amount was still not presented for payment;

(ii) the 10% deposit was no longer in their (Allen’s) bank account;

(iii) D’s failure to present the banker’s cheque for payment within one year from the date of the banker’s cheque will cause the money to be remitted to the unclaimed monies department.

February 2015 (27.2.2015)—Justice Balan of the High Court granted the SP Order. P1 appealed to the CA.

March 2015 (13.3.2015)—D’s solicitors (SC Tan) wrote to P1’s solicitors (Azizan Nayan & Co) to ask P1 to sign the SPA Page 8 of 31 and the Memorandum Of Transfer (MOT) for Lot 3, and forwarded another cheque for the 10% deposit.

December 2015 (7.12.2015)—The CA dismissed P1’s appeal and upheld the SP Order. P1 applied for leave to appeal further to the FC.

July 2016 (14.7.2016)—The FC refused P1 leave to appeal further against the SP Order.

May 2018 (17.5.2018)—D’s solicitors (SC Tan) wrote to P1’s solicitors (Norhisham & Co), enclosing the SPA, the MOT, and a Power Of Attorney, as well as another cheque for the 10% deposit—for P1 to comply with the SP Order.

22.5.2017 (should be 2018)—P1’s solicitors (Norhisham & Co’s) replied to D’s solicitors (SC Tan) to say that they had no instructions to “accept service of any documents”, and returned the documents that SC Tan sent to them, with the 10% deposit cheque.

March 2019—Ps then filed another suit: civil suit No. 22NCVC- 85-03/2019 (Suit 85) against D and 11 others, which included the law firms and the solicitors who acted for the parties in the Lot 3 transaction, namely Miss Adelyn Chong for D, Mr. Allen Choong for P1, Mr. Tan Swee Cheng of TSKA, as well as D’s directors. Page 9 of 31

November 2019 (5.11.2019)—Justice Amarjeet Singh of the High Court summarily struck out Suit 85. The reasons given by the High Court include:

the doctrine of res judicata applied to prohibit Ps from relitigating the same matter or issues in dispute between the parties;

(ii) Ps’ Suit 85 was time-barred and hence was an abuse of the process of the Court. Ps appealed to the CA.

August 2021 (5.8.2021)—CA dismissed Ps’ appeal. They applied for leave to appeal further to the FC.

February 2021 (4.2.2022)—FC refused Ps’ the leave to appeal further. WHAT IS THIS IMPEACHMENT SUIT ABOUT? [17] Ps’ causes of action in this impeachment suit are fraud and misrepresentation. I summarise below the particulars of Ps’ plea of fraud and misrepresentation, using the words and expressions contained in their Statement Of Claim (SOC). [18] First—suppression of evidence. The particulars of the alleged suppression of evidence by D are found at paragraphs 125 – 129 of the SOC. Ps plead that D, through its agents, “conspired (berkomplot)” to suppress evidence from the presiding Court in Suit 97 (Justice Balan), thus committing a fraud and misrepresentation upon the Court. Ps assert that D committed the fraud and misrepresentation on the presiding Court in Suit 97 by not disclosing the evidence that the 10% deposit, which was initially paid over by D, was eventually returned to D, which meant Page 10 of 31 that there was no consideration for the sale of Lot

Ps assert that if this evidence had been made known to the presiding Court in Suit 97, Justice Balan’s judgment to grant the SP Order would have been rendered “invalid (tidak sah)” and ought to be “set aside (terbatal)”. [19] Second—fraud and misrepresentation. The particulars of the alleged fraud and misrepresentation committed by D are found at paragraphs 130 – 142 of the SOC. Ps pleadings include the plea—

that D, through its agents, “conspired” to commit a fraud and a misrepresentation on the presiding Court in Suit 97, which caused Justice Balan to grant an erroneous SP Order;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by inducing P2 to sign documents without any explanation about the sale of Lot 3;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by taking steps to register the transaction relating to Lot 3, without Ps’ knowledge and knowing full well that Allen did not have the mandate to act for P1 to sell Lot 3;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by never informing P1 about the sale of Lot 3, nor obtaining P1’s consent to sell Lot 3;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by negotiating to sell Lot 3 through a Page 11 of 31 Power Of Attorney (given by P1 to P2), even though D and its agents had the implied knowledge that the agents’ appointments were not valid;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by concealing the evidence that P1 returned the 10% deposit to D;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by giving an impression to confuse the presiding Court in Suit 97 that D paid the 10% deposit to P1, while at the same time admitting that the 10% deposit was in D’s solicitors’ (San’s) possession;

that D, through its agents, “conspired” to commit a fraud and a misrepresentation, by giving the impression that P1 purportedly agreed to sell Lot 3, but only to later, at the last minute, changed her mind about selling Lot 3.

Note: These were the words and expressions that Ps used in their SOC. [20] Third—new evidence or new development. The particulars of the new evidence or new development are found at paragraphs 155 – 160 of the SOC. Ps plead that the new evidence that D did not disclose—which constituted a fraud or misrepresentation on D’s part—were the two letters dated 13.3.2015 and 17.5.2018 issued by D’s solicitors (SC Tan) to Ps’ solicitors: Azizan Nayan & Co and Norhisham & Co respectively, where D Page 12 of 31 repeatedly attempted to pay the 10% deposit to Ps by an AmBank Islamic cheque for RM263,345.16. [21] Ps argues that these two letters were never produced in the Suit 97 trial before Justice Balan. [22] I will straightaway deal with this issue. Ps’ argument here works against Ps rather than in their favour. First, these two letters were never produced in the Suit 97 trial before Justice Balan, for the simple reason that Justice Balan’s judgment in Suit 97 (the SP Order) was given on 27.2.2015. The Suit 97 trial was conducted before February 2015. But these two letters were issued only in March 2015 and May 2018—which was after the trial and the SP Order. [23] Second, these two letters demonstrate that in demanding that P1 signs the SPA and the MOT for the transfer of Lot 3 under the SP Order, D was ready, willing and able to pay over the 10% deposit again. D did not surreptitiously keep the 10% deposit that Ps returned (through Allen), and wanted to pay P1 only the balance 90% of the purchase price. In other words, D did not conduct itself as if the 10% deposit was paid and received by P1, and that it would now, to comply with the SP Order, pay P1 only the balance 90% of the purchase price. In this context, I see no fraudulent conduct on D’s part. PARTIES’ AGREED ISSUES TO BE TRIED (ITBT) BUT NOT UTILISED BY Ps [24] Parties agreed to the issues to be tried (Agreed ITBT) for trial. The Agreed ITBT was filed as Enclosure 107. The parties agreed that they will Page 13 of 31 go to trial with the Agreed ITBT, for this Court to determine this impeachment suit by answering the Agreed ITBT. [25] The agreed ITBT are summarised here—

Whether Ps’ suit is prohibited by res judicata?

Whether D has committed a fraud by using an invalid instrument (the Form 19B private caveat) to obtain the SP Order in Suit 97? Note: Ps agree that no evidence was led on this issue.

Whether P2 (who does not own Lot 3) can enter into an agreement to sell Lot 3 by way of the alter ego principle? (Justice Balan held that as P2 was handling the transactions concerning his mother: P1’s properties, P2 was P1’s alter ego in the sale of Lot 3.)

Whether P2 (who did not have a Power Of Attorney from P1) can sign the LOI, which was an offer to sell Lot 3?

Whether P2 (as a legal representative who had no mandate to act on P1’s behalf) has the right to compel P1 to sell Lot 3 against P1’s will? Note: Ps agree that no evidence was led on this issue either.

Whether Ps’ claim is time-barred? This Suit was filed on 12.12.2019. Time for this cause started to run from 11.3.2013 Page 14 of 31 when Ps discovered that D entered a private caveat over Lot 3. Note: Ps agree that no evidence was led on this issue as well. [26] D’s post-trial Written Submissions were structured according to the Agreed ITBT, but Ps’ Written Submissions did not. Ps did not submit according to the Agreed ITBT. [27] In any event, I noticed, however, that the six issues set out in the Agreed ITBT are not pertinent to the core issue that determines this impeachment suit. The core issue that determines this impeachment suit is: whether Justice Balan’s judgment dated 27.2.2015 in Suit 97 (the SP Order) was obtained by fraud or misrepresentation committed by D. If the SP Order was obtained by fraud or misrepresentation committed by D, it should be set aside. The core issue is whether D perpetrated a fraud on Ps or the presiding Court in Suit 97. Ps’ ARGUMENT [28] At the oral submissions proceeding, Ps agree that they can distill their submissions into one primary argument. [29] Ps’ primary argument is that the 10% deposit was never received by Ps. The 10% deposit money eventually made its way back to D’s solicitors (San). This is the alleged suppression of evidence committed by D in the Suit 97 trial before Justice Balan. Ps argue that the suppression of evidence constitutes the fraud that justifies an impeachment and thus setting aside of the judgment— Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1(FC); [2016] 2 AMR 795; [2016] 3 CLJ 1; [2016] 2 MLRA 263. Page 15 of 31 [30] There are two types of fraud—extrinsic fraud and intrinsic fraud. Extrinsic fraud is the kind of fraud committed outside of Court proceedings, such as the forgery of documents. Intrinsic fraud, however, is like the suppression or concealment or non-disclosure of evidence in Court proceedings that has the effect of “preventing a party from presenting all of his case to the court”—Seruan Gemilang (supra) at paragraph [43]. [31] The FC, in Seruan Gemilang (supra), propounded the principle that an “earlier judgment cannot be impeached or set aside on a mere general allegation of fraud”. The fraud must be demonstrated “with sufficient details” as to “how, when, where and in what way” the alleged fraud was committed—at paragraph [41]. [32] It is important to note that Ps agree that their other arguments are secondary to this core argument. Ps accept that this primary argument will be the determinant argument on whether Ps succeed in this impeachment suit. MY FINDINGS [33] I find that Ps’ primary argument is untenable. My reasons are as follows. There was a concluded contract between P1 and D [34] One—an analysis of the pertinent facts proven by the evidence will flesh out the weakness of this argument— Page 16 of 31

On 18.12.2012—P2 issued the LOI (the offer to sell Lot 3) specifically and directly to D at the price of RM130.00 per square foot.

On 16.1.2013—D’s solicitors (San) responded to P2’s LOI (offer to sell Lot 3) by writing to P1’s “alleged solicitors” (Allen) to accept P2’s offer, and enclosed the cheque of RM263,345.16 for the 10% deposit (1st cheque).

I say “alleged solicitors” because whether or not Allen acted for P1: the owner of Lot 3, is a disputed fact in Suit 97. In San’s letter of acceptance, they stated: “We…understand that you act for the registered proprietor of the Land [Lot 3]”. P1, on the other hand, took the position that Allen did not act for her. P1 asserted that the solicitors who acted for her in the sale of Lot 3 were TSKA.

On 29.1.2013—Allen responded to D’s solicitors (San) by accepting D’s proposed terms. Allen also asked D’s solicitors (San) to prepare the draft SPA for P1’s approval.

On 4.2.2013—D’s solicitors (San) wrote again to P1’s solicitors (Allen) to confirm D’s agreement to P1’s terms. D’s solicitors also informed Allen that D would prepare the draft SPA and send it to P1 for approval.

On 5.3.2013—D’s solicitors emailed to Allen the amended draft SPA that they had worked on, for P1’s approval. Page 17 of 31

Between 5.3.2013 to 7.3.2013—the parties worked on finalising the terms of the SPA.

On 7.3.2013—the meeting at D’s solicitors’ (San’s) office to conclude the terms of the SPA. Present were: P2 (as P1’s representative); Mr. Allen Choong as P1’s solicitor; Mr. Ooi and Mr. Tan Hock San as D’s representatives; and Miss Adelyn Chong as D’s solicitor. On this date, D also entered a private caveat on Lot 3 on the ground of the sale of Lot 3 by P1 to D.

On 14.3.2013—P1 refused to sign the finalised SPA, which caused P1’s solicitors (Allen) to put on record that:

despite several negotiation meetings between the parties, where P2 was present, which led to the final SPA ready for signing, P2 later insisted that the terms of the SPA were not finalised;

(ii) P2 “apparently” did not appoint Allen to act for P1 in the transaction;

(iii) P1’s solicitors were “actually” TSKA; and

(iv) the 10% deposit that was paid over earlier was then returned by an enclosed cheque for that amount.

On 26.3.2013—D’s litigation solicitors (CP Tang) wrote to TSKA, asking TSKA to confirm whether TSKA were the solicitors acting for P1 in the Lot 3 sale transaction. Note: CP Tang wrote to TSKA because Allen had indicated that according to P2, Allen “apparently” was not acting for P1. Page 18 of 31

On 27.3.2013—TSKA replied to say that they had no instructions from P1 to act for P1, and they could not confirm if they had taken over conduct of the matter from Allen. Note: This contradicted the position that P2 took on behalf of P1 i.e. that P1 did not appoint Allen to act for P1 in the sale transaction, but she had appointed TSKA to act for her in the sale.

Miss Adelyn Chong of San, testifying at the trial of this impeachment suit, said that sometime in March 2013, San forwarded Allen’s 1st cheque to CP Tang.

On 1.4.2013—D’s solicitors (CP Tang)— taking the position that there was a concluded contract between D and P1—wrote directly to P1 and forwarded to her Allen’s 1st cheque, and demanded that P1 signed the SPA for Lot 3 and the MOT to transfer Lot 3.

On 11.4.2013—Allen wrote to San to say that as his 1st cheque was not accepted by D, he now resorted to forwarding a banker’s cheque to San. A banker’s cheque is not the same as a normal cheque that is drawn on a current account, in the sense that a banker’s cheque is said to be as good as cash. Allen would have paid the issuing bank for the banker’s cheque, whereas for a normal cheque drawn on a current account, the money would only be deducted from the current account holder who issued the cheque, when the cheque is presented for payment. Page 19 of 31

Miss Adelyn Chong of San testified that after 11.4.2013, CP Tang (D’s litigation solicitors) advised San (D’s sale and purchase i.e. conveyancing solicitors) to not bank in Allen’s banker’s cheque.

On 20.11.2013—Allen wrote to San to notify San that if the banker’s cheque was not presented for payment within one year from date of issuance (the date of issuance was 10.4.2013), CIMB bank had warned Allen that the money will be remitted to the unclaimed moneys department.

The banker’s cheque was eventually banked in by San. Miss Adelyn Chong testified that San had no other option but to bank in the bankers’ cheque, so that the money, which was already paid to the issuing bank (CIMB bank), would not be transmitted to the unclaimed moneys department. [35] This is the basis of Ps’ argument—Allen’s banker’s cheque for the 10% deposit eventually ended up back with San (D’s solicitors). In other words, even though Allen, on P1’s behalf, accepted the 10% deposit, the 10% deposit made its way back to San (D’s solicitors). This meant that P1 did not actually receive the 10% deposit. Ps argue that as a result, there was no contract for the sale and purchase of Lot 3 between P1 and D. Ps argue that D suppressed this evidence from the Suit 97 trial before Justice Balan. Ps argue that if this evidence had been produced before Justice Balan, he would not have held that there was a concluded contract between P1 and D for the sale of Lot 3. Page 20 of 31 [36] I find—applying the fundamental elements of contract law, and on the balance of probabilities—that the elements for a concluded contract were present, namely an offer, the acceptance of the offer, the consideration for the contract, and the intention to enter into the transaction to sell and purchase Lot 3. [37] I also find that the critical emphasis that Ps place on this issue of whether the 10% deposit was paid over and received personally by P1, is misplaced. The 10% deposit is not the consideration for the contract to sell and purchase Lot 3. The purchase price is the consideration. The payment and receipt of 10% deposit is also not a condition precedent for the contract concerning Lot 3. The required fundamental elements for the valid formation of a contract are as I allude to above—offer, acceptance, consideration, and a common intention to enter into the contract. [38] Ps can hardly rely on the fact that: (i) the 10% deposit was initially paid over and accepted by Allen (on P1’s behalf), (ii) Allen returned the 10% deposit to D, and (iii) Allen’s banker’s cheque was eventually banked in by D or its solicitors—to assert that no contract was formed between P1 and D concerning Lot 3. P2 represented P1 in the transaction to sell Lot 3 [39] Two—Ps submit that P2 did not represent P1 to sell Lot 3. And Ps argue that Allen, who received the 10% deposit from San, did not represent P1. [40] I again find Ps’ argument untenable. Based on the evidence, these are my reasons— Page 21 of 31

In the Cross-examination of P1 in this impeachment suit, P1 admitted that:

it was P2 who dealt with the lawyers about Lot 3 (and another piece of land: Lot 2);

(ii) it was P2 who engaged the lawyers to act for P1 in the sale and purchase transactions.

Miss Adelyn Chong of D’s solicitors (San) testified in Suit 97 that as far as San understood it (as far as they are concerned), P2 represented P1.

In Suit 97, during Mr. Allen Choong’s testimony, Justice Balan asked him: what was the role of P2? Mr. Allen Choong answered that P2 represented his mother: P1, the Vendor, throughout the negotiation. Justice Balan asked him another question: as far as you are concerned, P2 was P1’s representative? Mr. Allen Choong answered: Yes.

Before Allen was in the picture, P2 had already been negotiating with D, particularly with its director: Mr Ooi (who testified in this impeachment suit). P2 signed the LOI, which was addressed to Mr. Ooi. The LOI was undoubtedly an offer to sell Lot

In Cross-examination, P2 admitted that he signed the LOI.

Mr. Tan Hock San (D’s present managing director) testified in Suit 97 that “at all times, the son, Mansor, telling [sic] us that he is the vendor [sic] representatives [sic] and the solicitors of his mother is Allen Associates”. Page 22 of 31

In this impeachment suit, Mr. Allen Choong testified that—

P2 represented P1 in the sale and purchase transaction;

(ii) P2 had the required authority to act for P1;

(iii) he was 100% certain that P2 had the authority to negotiate for P1;

(iv) he got the information that P2 had authority to act for P1 directly for P2 himself.

Concerning the issue of the return of the 10% deposit to D, at the trial of this impeachment suit, Mr. Allen Choong testified that—

P2 had a change of mind about selling Lot 3;

(ii) P2 did not want to complete the transaction that was already agreed on; and

(iii) P2 instructed his new sols: TSKA to inform him (Mr. Allen Choong) to return the 10% deposit to D.

Relatedly, I reiterate that when D’s litigation solicitors: CP Tang asked TSKA whether TSKA acted for P1 in the transaction to sell and purchase Lot 3, TSKA responded that they had no instructions to act for P1. TSKA also stated that they could not confirm whether they were to take over the conduct of the transaction from Allen.

In Suit 97, analysing Justice Balan’s Grounds Of Judgment, I gleaned that—

Justice Balan made a finding of fact that P2 acted as P1’s authorised representative;

(ii) P2 instructed Allen to handle the sale and purchase transaction for Lot 3; and

(iii) critically, there was a concluded contract between P1 and D for the sale and purchase of Lot 3.

In this impeachment suit, in the Cross-examination of Mr. Allen Choong—

he testified that P2 went with him to the 7.3.2013 meeting with D and D’s solicitors (San) and they “were together at the meeting negotiating” with D and D’s solicitors;

(ii) was questioned: “..did you receive any clear instruction from Mansor [P2] or Khatijah [P1] that they dispute on your representation?” Mr. Allen Choong answered: “He would not have disputed because he was next to me at the meeting as my client. Of course the answer is No, there was no dispute on that.”

In Suit 97, Justice Balan found that there was oral evidence that P2 did not appoint Allen to act as P1’s solicitors, and that this fact was verified by P2’s email dated 10.3.2013 to Allen, disputing Allen’s authority to act for P1 in the Lot 3 transaction. But Justice Balan found that this purported email dated 10.3.2013 was not produced into the body of evidence in Suit

And so, he had “grave doubts” that there was ever such an email. As such, I am compelled to find that there was no evidence that Allen was given no authority to act for P1 in the Lot 3 transaction. Page 24 of 31 The SP Order ordered D to pay the full purchase price (100%), and not just the balance of the purchase price (90%) [41] Three—Justice Balan’s SP Order ordered that “the purchase price” of RM2,633,451.60 was to be paid within five months from the date of the notice for D to remove the private caveat over Lot 3. The amount of RM2,633,451.60 is the full purchase price (100% of the purchase price). [42] I therefore find, on the balance of probabilities, that if Justice Balan was misled by D to believe that the 10% deposit was paid and received by P1, he would not have ordered D to pay the full purchase price within the five months stipulated. It would have been incongruent with the other terms of the SPA to have ordered D to pay the full purchase price, since the 10% deposit was supposed to have been paid and received. [43] If D had misled Justice Balan into thinking that the 10% deposit was paid and received by P1, he would have more naturally instead ordered D to pay only the balance 90% of the purchase price within the agreed five-month period. [44] From an analysis of the terms of Justice Balan’s SP Order, and his Grounds Of Judgment, I believe that Justice Balan was not misled by any fraud or misrepresentation by D. He found that there was a valid and binding contract between P1 and D. He knew that the 10% deposit, although paid, was not received by P1. And so he ordered that the full purchase price (and not just the 90% balance of the purchase price) be paid within the five-month period. Page 25 of 31 The SP Order provided that the full purchase price was to be paid and interest was to be applied only to the balance of the purchase price [45] Four—Ps cite Justice Balan’s SP Order. The SP Order stated that the specific performance of the SPA for Lot 3 between P1 (as vendor) and D (as purchaser) was to be carried out; and the RM2,633,451.60 purchase price was to be paid within five months from the date of the written notification from P1 (vendor) to D (purchaser) to withdraw the private caveat that D lodged over Lot 3. [46] The SP Order also provided that if the full purchase price was not paid within the five-month period, D (purchaser) became obligated to pay P1 (vendor) interest at 6% per annum “on the balance of the purchase price (ke atas baki harga pembelian)”. Ps argue that this precise expression in Justice Balan’s SP Order could mean only one thing— Justice Balan must not have known that the 10% deposit was returned and never received by P1. Ps argue that this was the only plausible reason for Justice Balan to order the 6% per annum interest to be applied to the balance of the purchase price, and not the full purchase price. In other words, Ps postulate that Justice Balan must have thought that the 10% deposit was paid and received by P1. That was why he ordered D to pay P1 the 6% interest on the balance 90% yet unpaid. [47] But I find that this is not so. Firstly—Section 6 of the First Schedule of the SPA provided that the 10% deposit (RM263,345.16) “has been paid to the Vendor’s (P1’s) solicitors”. [48] It was an agreed term between the parties that the 10% deposit was already paid by D to P1. Page 26 of 31 [49] Secondly—I find that the term concerning the 6% interest on the balance of the purchase price was already stipulated in the draft SPA, in Section 9 of the First Schedule. Section 9 of the First Schedule imposed a 6% interest on the balance 90% of the purchase price if the purchase price was not paid within the five months. [50] Thirdly—I find that in the SPA’s First Schedule, Section 6 provided for the 10% deposit. Section 7 provided for the agreed purchase price of RM2,633,451.60. Section 8 provided for the 90% balance of the purchase price i.e. RM2,370,106.44. Section 9 imposed the 6% per annum interest on the balance of the purchase price if the purchase price was not paid within the five months. [51] It is, to me, entirely reasonable for Justice Balan to follow the agreed terms set out in the First Schedule, particularly the term in Section

I do not at all find that there was some other extraneous reason to have caused Justice Balan to order the imposition of the 6% interest on the balance of the purchase price—extraneous reasons such as a fraud or misrepresentation committed by D upon the presiding Court in Suit 97. [52] I find therefore that the term which imposed a 6% interest on the balance 90% of the purchase price was merely a negotiated and agreed term of the finalised SPA. It was not a term that Justice Balan was misled by D to believe or misled to find. Summary of my findings [53] This is a summary of my findings in this impeachment suit. First— Page 27 of 31 Ps have failed to prove, on the balance of probabilities, their assertion of a fraud by D by a suppression of evidence in Suit 97 i.e. that D concealed the fact that the 10% deposit that D initially paid to Allen eventually ended up back with D’s solicitors, which meant that the 10% deposit was never received by P1, which Ps assert would have affected Justice Balan’s reasoning that led to his judgment (the SP Order). [54] Second—Justice Balan found that P2 represented P1 in the negotiations to sell Lot 3. The evidence started with P2’s LOI. P2 signed the LOI. Justice Balan also found that P2 instructed Allen to handle the Lot 3 transaction. And Justice Balan found that there was a concluded contract for the sale and purchase of Lot 3 between P1 and D. There was an offer to sell Lot 3. D accepted the offer. The purchase price was agreed on. The 10% deposit was paid and accepted by Allen. What remained was merely for the SPA to be finalised for signing. [55] Third—Ps assert that D committed a fraud or misrepresentation in Suit 97 by misleading the presiding Court in Suit 97 into believing that the 10% deposit was paid over to P1 (which allegedly secured the sale and purchase of Lot 3), when in fact the 10% deposit was never paid over to P1. But Justice Balan granted a SP Order that ordered D to pay the full purchase price to P1. Justice Balan did not order D to pay only the balance 90% of the purchase price, as if the 10% deposit was already paid and received. [56] Justice Balan ordered D to pay P1 the full purchase price for Lot 3. The finalised SPA provided that the 10% deposit was taken as paid at the point when the finalised SPA for Lot 3 was ready to be signed by the parties. Justice Balan further ordered D to pay P1 a 6% per annum interest Page 28 of 31 on the balance of the purchase price (90% of the purchase price), if D did not pay the balance of the purchase price within five months from the date that P1 notifies D to remove the private caveat that D lodged over Lot 3. I do not see how the terms of Justice Balan’s SP Order were affected or would be affected by the allegation that D fraudulently concealed the fact that the 10% deposit was not received by P1. [57] Fourth—I find that after Justice Balan’s SP Order in February 2015—in March 2015 (13.3.2015) and in May 2018 (17.5.2018)—D’s solicitors (SC Tan) wrote to P1’s solicitors to enforce the SP Order granted by Justice Balan, forwarding documents that include the SPA and the MOT for Lot 3 for P1 to sign, and an AmBank Islamic cheque for the 10% deposit, to pay the 10% deposit to P1. D would not have forwarded the 10% deposit to P1 again if D had wanted to or intended to conceal the fact that the 10% deposit was initially paid but later returned and eventually ended up back in D’s solicitors’ hands. I do not find that D had committed a fraud that stems from concealing the disputed fact that the 10% deposit was not paid to, nor received by, P1. (It is a disputed fact whether receipt by Allen constituted receipt by P1.) [58] In other words, I find that D did not commit the suppression or concealment of evidence that constituted a fraud or a misrepresentation on the presiding Court in Suit 97. D did not seek to hide the fact that the 10% deposit was received by Allen, but he tried to return the money later. [59] Put differently, when D demanded that P1 signs the SPA and the MOT, D again forwarded to P1 the 10% deposit, demonstrating that D was ready, willing and able to pay the full purchase price to P1. D did not state that it will pay only the balance 90% of the purchase price, as if the 10% Page 29 of 31 deposit was already paid and received. D did not seek to pay P1 10% less than the full purchase price. RES JUDICATA IN THE WIDER SENSE [60] D submits that another significant defence that will determine this impeachment suit is its defence of res judicata in the wider sense. The principle was propounded in the case of Asia Commercial Finance(M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC) at 197; [1995] 3 AMR 2559 at 2571; [1995] 3 CLJ 783; [1995] 1 MLRA 611, and cited by the CA in Yow Man Kong @Senthil Kumar v Ghandirajan Arjunan & Anor [2023] 5 MLJ 64 (CA); [2023] 3 CLJ 503; [2023] 6 MLRA 447. [61] In Yow Man Kong (supra), the respondents there should have pleaded illegal moneylending in the first suit, but they did not. In the subsequent suit to impeach the judgment in the first suit, the respondents then pleaded illegal moneylending. The evidence about the illegal moneylending was in the respondents’ possession and knowledge. The principle of res judicata in the wider sense was held to apply, in that the respondents could have pleaded illegal moneylending in the first suit but they did not. And because they did not, the principle of res judicata in the wider sense was held to prohibit them from pleading it in the subsequent impeachment suit. [62] Even public policy demands that there should be finality in litigation. Ps should not be permitted to continue to litigate the same subject matter—the sale and purchase of Lot 3—in the optimistic hope of eventually getting a favourable outcome. Page 30 of 31 [63] In this impeachment suit, the evidence of the return of the 10% deposit and that P1 never received it, should have been raised but was not raised in Suit 97 before Justice Balan. Allen’s banker’s cheque was already issued and was available to be produced for the Suit 97 trial. The banker’s cheque was dated 10.4.2013. The trial started on 29.10.2014. Allen and TSKA (who were supposed to act for P1 in Suit 97) both testified for P1. Both Allen and TSKA could have produced the banker’s cheque, to prove that the 10% deposit was returned to D, but they (on P1’s behalf) did not do so. I am of the view that res judicata in the wider sense applies against Ps now. [64] I am informed by counsel that the evidence of the banker’s cheque—to show the return of the 10% deposit—could have but was not produced at the Suit 97 trial. I therefore also find that this impeachment suit is prohibited by res judicata in the wider sense. CONCLUSION [65] In conclusion, I find that Ps have not made out a case to justify an impeachment and the setting aside of the judgment (the SP Order) in Suit

Ps have not proven that D and its agents “conspired” (as pleaded) to commit a fraud and misrepresentation upon the presiding Court in Suit 97 such that the SP Order concerning Lot 3 should be set aside. I find that Ps have not proven that D had suppressed or concealed evidence from the presiding Court in Suit 97, which amounts to a fraud that justifies impeaching the SP Order. [66] I therefore dismiss Ps’ claim, with costs of RM50K to be paid by Ps to D. Costs are subject to the allocatur. Page 31 of 31 Dated: 10 March 2025 KENNETH ST JAMES Judge Penang High Court Counsel/Solicitors: For the Plaintiffs—Adrian Silvarajoo and Nur Amalina Mohamad Rosli [Messrs. Adrian & Co (Seri Kembangan)] For the Defendant—B.Y. Khoo and Siti Hajar Abd Wahab [Messrs. The Chambers Of B.Y.Khoo (Kangar)] Cases referred to:

Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Berhad [1998] 1 MLJ 393 (FC); [1998] 1 AMR 909; [1998] 2 CLJ 75; [1998] 1 MLRA 183.

Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1(FC); [2016] 2 AMR 795; [2016] 3 CLJ 1; [2016] 2 MLRA 263.

Asia Commercial Finance(M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC) at 197; [1995] 3 AMR 2559 at 2571; [1995] 3 CLJ 783; [1995] 1 MLRA 611.

Yow Man Kong @Senthil Kumar v Ghandirajan Arjunan & Anor [2023] 5 MLJ 64 (CA); [2023] 3 CLJ 503; [2023] 6 MLRA 447.