1. ) LBCN DEVELOPMENT SDN. BHD. v 1. ) K&A Management Sdn Bhd (BA-22NCvC-534-10/2018)

LIPUTAN CANGGIH SDN BHD

ASCOT HEIGHTS SDN BHD

LBCN DEVELOPMENT SDN BHD

EXTRAGOLD SDN BHD

REDZTIKAH SDN BHD

EUREKA FOUNTAIN SDN BHD

TULUS KEMBANG SDN BHD (NO. SYARIKAT: 482001-P) … PLAINTIF-PLAINTIF

K&A MANAGEMENT SDN BHD

DATO’ KOH FOONG SOON

CHIN YOKE FONG

K&A CAPITAL SDN BHD

KURNIA HARUMAN SDN BHD

RINGGIT EXOTIKA SDN BHD

BENTAYAN PROPERTIES SDN BHD …

KOAY KANG CHUWAN

PRASAD RATHINASAMY S/N K7WyOlGwjEielVln4bT/5w

CHAN KIM CHEE (NO. K/P: 720101-01-6147) … PIHAK-PIHAK KETIGA DEFENDAN PERTAMA

HADRONS CONSULTING SDN BHD

KOAY KANG CHUWAN

(NO. K/P: 571030-07-5791) … PIHAK-PIHAK KETIGA DEFENDAN KEDUA

LBCN DEVELOPMENT SDN BHD

BERKAT GAGAH SDN BHD

BENTAYAN PROPERTIES SDN BHD S/N K7WyOlGwjEielVln4bT/5w (DALAM LIKUIDASI) …PIHAK-PIHAK KEEMPAT PIHAK-PIHAK KETIGA PERTAMA DAN KEDUA DEFENDAN

LBCN DEVELOPMENT SDN BHD

BERKAT GAGAH SDN BHD

BENTAYAN PROPERTIES SDN BHD (DALAM LIKUIDASI) …PIHAK-PIHAK KEEMPAT PIHAK-PIHAK KETIGA DEFENDAN KEDUA (DALAM TINDAKAN ASAL) ANTARA HADRONS CONSULTING SDN BHD (NO. SYARIKAT: 1196773-P) …PLAINTIFF

K&A MANAGEMENT SDN BHD

DATO’ KOH FOONG SOON (NO. K/P: 650303-10-6529) … DEFENDAN-DEFENDAN (DALAM TUNTUTAN BALAS) JUDGEMENT (Enclosure 654, 657, 660 & 663) [1] The following is the grounds of judgment of this Court in relation to the setting aside application/s by the First to the Fourth Parties (“1st - 4th Parties”) in this suit, namely: Mujur Zaman Sdn Bhd (“MZ”), Bentayan Properties Sdn Bhd (“BP”), LBCN Development Sdn Bhd (“LBCN”) and Berkat Gagah Sdn Bhd (“BG”) in respect of: a) The Ex-Parte Orders dated 31.05.2021 (Encs. 630 and 631 respectively) granted by this Honourable Court allowing the application by the 2nd Defendant’s Third and the 1st S/N K7WyOlGwjEielVln4bT/5w Defendant’s 1st and 2nd Third Parties for leave to issue a Fourth Party Notices MZ, BP, LBCN and BG; and b) The Fourth Party Notices (“4th Party Notices”) both dated 31.05.2021 (Encs. 624 and 627 respectively); (Hereinafter referred to as “the Setting Aside Applications”). [2] Despite there being four (4) separate applications filed i.e. Enclosure 654, 657, 660 and 663, the grounds of application and the submissions filed are all identical and/or similar in nature. Hence, I do not propose to write four (4) separate judgments. Instead, this singular judgment is sufficient to deal with the four (4) setting aside applications. Introduction [3] The brief background to the applications herein are set out below: S/N K7WyOlGwjEielVln4bT/5w a. Circa October 2018, the Plaintiff commenced this present suit against several parties including MZ and BP as the 7th and 8th Defendants respectively; b. In November 2018, K&A Management Sdn Bhd - being the 1st Defendant in the present suit, issued a Third-Party Notice against the Third Parties herein namely: i. Koay Kang Chuwan (KKC); ii. Prasad Rathinasamy (Prasad); and iii. Chan Kim Chee (CKC). c. At the same time, Dato’ Koh Foong Soon (KFS) also issued a Third-Party Notice (“3rd Party Notice”) against Hadrons Consulting Sdn Bhd (Hadrons), KKC and Prasad. d. On 31.05.2021, the abovenamed Third Parties obtained two (2) Ex-Parte Orders dated 31.5.2021 granting leave to issue 4th Party Notice to the applicants herein. Service of the 4th Party Notices were affected on the 4th parties’ solicitors on 03.06.2021. S/N K7WyOlGwjEielVln4bT/5w The Fourth Parties’ grounds in support of Enclosure 654, 657, 660 & 663 [4] I have set out below a summary of the grounds in which the present applications are based upon:

BP was wound up on 2.06.2018 by the KL High Court pursuant to a Winding-Up Petition No: WA: 28NCC-561-08/2017. No leave was obtained prior to the issuance of the 4th Party Notice on BP as required under Section 471 (1) of the Companies

(ii) They are several materials non-disclosures on the part of the 3rd Parties in obtaining the Ex-Parte Leave Orders (see Cheng Joon Onn v Kong Siew Kin [2006] 7 CLJ 1 and Re Vernazza [1959] 2 All ER 200). The list are as follows: - Hadrons had failed to disclose that they had in KLHC Suit No. WA-22NCvC-215-05/2020 sued the 4th parties herein S/N K7WyOlGwjEielVln4bT/5w seeking for the same relief as sought under the 4th Party Notices. - The 3rd Parties have failed to disclose that BP had successfully struck out Suit 215 on the grounds that there was no cause of action against them. - The 3rd Parties have failed to disclose the fact that there is no leave granted by the KLHC Winding-Up Court in respect of the 3rd Parties’ application to file 4th Party Proceedings against BPSB.

(iii) Both KKC and Prasad has no locus standi to bring the 4th Party Proceedings against the applicants based on a purported indemnity clause under the Corporate Strategy and Advisory Agreement (“CSAA”) dated 12.12.2012 as they both were non-parties to the CSAA;

(iv) MZ, BP and LBCN are already parties to the present Suit. Any 3rd or 4th Party Proceedings can only be brought against non-parties to the suit; S/N K7WyOlGwjEielVln4bT/5w

There was a delay of nearly three (3) years in commencing the 4th Party Proceedings (reliance placed on the COA decision in Dato Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries [2012] 5 MLJ 176). There was no reason given for the excessive and unreasonable delay. Summary of the Third Parties’ submission in opposing the Fourth Parties’ application herein [5] The grounds of opposition are as follows:

Leave of the winding up court can be granted nunc pro tunc as there is nothing Section 417 of the CA prohibiting the winding up court the grant leave for sanction retrospectively (see AWH Equity Holdings Sdn Bhd v GMV-Borcos Sdn Bhd [2020] 4 CLJ 185, Winstech Engineering Sdn Bhd v ESPL (M) Sdn Bhd [2014] 2 CLJ 1 and Re Saunders (A Bankrupt) [1997] Ch d 60);

(ii) The 3rd Parties have prima facie claim against the 4th Parties pursuant to Clause 11 of the CSAA, the Settlement S/N K7WyOlGwjEielVln4bT/5w Agreement dated 22.09.2015 and Clause 9.2 of a Memorandum Agreement dated 02.08.2018 whereby the 4th Parties have contracted to indemnify and hold harmless Hadrons against any possible liabilities, costs, claims, actions, losses, damages and expenses whatsoever occasioned by the discharge of Hadrons of its liabilities. This is sufficient to show that the 4th Party Notice is not frivolous or unmeritorious (reliance placed on the case of Malayan Banking Bhd v Sepakat Computer Consultant Sdn Bhd [2012] 8 MLJ 660 and Lee Kuan Yew v Nair Devan [1992] 3 SLR ® 757);

(iii) The 3rd Parties are entitled to seek full indemnity from the 4th Parties from any liability that the Third defendant may suffer, including all payments ordered to be paid by the 2nd Defendant by the 3rd Parties, if any, should be borne and made by the 4th Parties jointly and severally and paid to the 2nd Defendant. The 3rd Parties are also entitled to a judgment against the 4th Parties premised on the contractual indemnity jointly and severally for the amount of costs that the 3rd Parties may be adjudged to pay to the 2nd Defendant; S/N K7WyOlGwjEielVln4bT/5w

(iv) The issuance of the 4th Party Notice serves to prevent a multiplicity of actions and to enable the court to determine disputes between all parties concerned in one action. This would prevent the same question from being tried twice with possibly different results;

The purported non-disclosure of the KLHC Suit No. WA- 22NCVC-215-05/2020 has no relevance or is not material to the application to issue the 4th Party Notices: - a) In Suit 215, part of the reliefs sought by Hadrons was for an order of indemnity for all costs and expenses to be incurred and arising from the proceedings herein. Hadrons have also prayed for a sum of RM 3 million to be retained by the stakeholder solicitors, Messrs Abraham Ooi & Partners, to defray the costs and expenses that are expected to be incurred in the proceedings herein; b) In the proceedings herein, the Applicants seeks a different kind of indemnity-S/N K7WyOlGwjEielVln4bT/5w i) an indemnity against any and all liability that may be adjudged against the 3rd Parties; and ii) all such payments, if any, imposed upon the 3rd Parties be made directly by the 4th Parties to the 1st and 2nd Defendants. c) The claim for indemnity in this instance, is not limited to the costs and expenses incurred in this suit, but for all sums that the 1st and 2nd Defendants may be adjudged to restore to the Plaintiffs (in the event that the Plaintiffs should succeed in their claim); and in the unthinkable event that the 1st and 2nd Defendants should succeed in their frivolous and vexatious claim for indemnity against the 3rd Parties. In fact, the indemnity sought for in this claim is concurrent to the possible quantum of damages that may be awarded to the Plaintiffs; and d) Hence, the non-disclosure of the aforesaid Suit 215 was of no material relevance to the subject matter herein (the S/N K7WyOlGwjEielVln4bT/5w Court’s decision in granting leave for the issuance of 4th Party Notices).

Under Clause 11 of the CSAA, the indemnity clause covers all of Hadron’s officers and employees. In addition, the right to indemnity is not only confined to cases of contract (see Managepay Technologoes Sdn Bhd v Khor Wai Hoal v Chew Chee Seng & Anor [2020] 1 LNS 594 and the House of Lords decision in Eastern Shipping Company v Quah Beng Kee [1924] AC 177);

(ii) As the 4th Parties had in KLHC Suit No. 22NCVC- 215-05/2020 against the 3rd Parties alleged that KKC and Prasad are the alter egos of Hadrons, they cannot allege that both of them are not entitled to claim indemnity for the reason that they were not parties to the CSAA; S/N K7WyOlGwjEielVln4bT/5w

(iii) Order 16 rule 9 of the Rules of Court 2012 does not prohibit a 3rd party from bringing a 4th Party Proceedings against an existing party in a particular action (see Homemas Development (Bintulu) Sdn Bhd & Anor Bintulu Development Authority [2019] 1 LNS 1789 and Weir Pumps Ltd v CML Pumps Ltd 2 IPR 129);

(iv) The reason for the delay was duly explained i.e. due to the fall out between the Third Parties and Fourth Parties on the issue of the former’s outstanding fees. In any event, the delay herein did not prejudice the Fourth Parties as: e) the 4th Parties are well aware that Hadrons have invoked Clause 11 of the CSAA and the MOA in claiming for indemnity. The CSAA and MOA have never been denied or challenged. He CSAA and MOA are still valid and binding on the 4th Parties; S/N K7WyOlGwjEielVln4bT/5w f) the indemnity given to the 3rd Parties in Clause 11 of the CSAA and the MOA is clear and unequivocal and cannot be denied; and g) the 4th Parties merely have to file a Defence. To ensure that “justice should not only be done but should manifestly and undoubtly be seen to be done”, the issue of whether the 4th Parties are liable to indemnity the 3rd Parties is an issue that can be and must be tried together in the main action. The CSAA is already part of the Plaintiffs’ pleaded case and will be adduced at trial in any event. Principles of law for setting aside a Third Party Notice [6] The provisions of Order 16 rule 9 of the Rules of Court 2012 (“the Rules of Court”) which governs the commencement of 4th party proceedings, provides as follows: - S/N K7WyOlGwjEielVln4bT/5w

Where a defendant has served a third party notice and the third party makes such a claim or requirement as is mentioned in rule 1 or rule 8, this Order shall, with the modification mentioned in paragraph (2) and any other necessary modifications, apply as if the third party is a defendant and similarly where any further person to whom, in accordance with this rule, this Order applies as if he were a third party makes such a claim or requirement;

(ii) The modification referred to in paragraph (1) is that paragraph

shall have effect in relation to the issue of a notice under rule 1 by a third party in substitution for rule 1(2);

(iii) A third party may not issue a notice under rule 1 without the leave of the Court unless he issues the notice before the expiration of fourteen days after the time limited for appearing to the notice issued against him. [7] Under Order 16 rule 6, proceedings on a third-party notice may, at any stage of the proceedings, be set aside by the Court. Similarly, S/N K7WyOlGwjEielVln4bT/5w proceedings on a fourth party notice may also be set aside pursuant to Order 16 rule 6 of the Rules of Court 2012 (see Homemas Development (Bintulu) Sdn Bhd v. Biz Round Sdn Bhd & Ors [2019] 1 LNS 1789). [8] Powers of the Courts to set aside an ex-parte orders are also enshrined under:

Order 32 rule 6 of the Rules of Court 2012 which provides the Court with a general power to set aside an ex-parte order; and

The inherent jurisdiction to set ex-parte orders (see the judgment of Lord Denning, MR (as his Lordship then was) in Becker v Noel [1971] 2 All ER 1248 (CA): “where leave is given ex parte it is always within the inherent jurisdiction of the court to revoke that leave if it feels that it gave its original leave under a misapprehension upon new matters being drawn to its attention.” S/N K7WyOlGwjEielVln4bT/5w [9] In Tan Poey Kheng v. Ma Peng Kiat [1984]1 MLJ 58, Dzaiidin J (as he then was) held as follows: - “Order 21 Rule 6 of the Rules of the High Court 1980 provides that the Court may set aside an order made ex parte. This rule embodies the fundamental rule of practise that a party affected by an ex parte order may apply to the Court to discharge it, in as much as he has not had an opportunity of being heard – see Boyle v Sacker (1888) 39 ChD 249 251 at page 251 per Cotton L.J. In addition to this rule, the Court has also an inherent jurisdiction to revoke leave given ex parte.” Court’s Analysis and Findings [10] Having reviewed the cause papers in relation to Encs. 654, 657, 660 & 663 respectively, I am satisfied that the 4th parties application/s to set aside the 4th Party Notices ought to be allowed. My reasons for finding so are set out in the following paragraphs of this judgment. S/N K7WyOlGwjEielVln4bT/5w [11] Firstly, despite whilst I do agree with the 3rd parties’ submission that a 4th party notice can be issued on a nunc pro tunc basis, I find no justification as to why the application to issue the 4th party notice was done on ex-parte basis. In view of the fact that the 4th parties were already parties to the suit for more than 2 ½ years prior to the filing of the application, I am incline to agree with the 4th parties’ submission that there was no urgency for the 3rd party to file the application to issue the 4th party notice on an ex-parte basis. Bearing in mind that a 3rd party notice can be set aside at any stage of proceedings, I find no reason as to why I should be prevented from doing so at this juncture. [12] Secondly, I take the view that the existence of KLHC Suit 215, ought to have been disclosed to the Court. I opine so as the issue of whether the 3rd parties can claim indemnity against the 4th parties is already well canvassed before the KL High Court. To my mind, the issue the existence of Suit 215 is indeed an important aspect for this Court to consider in dealing with the ex-parte application. S/N K7WyOlGwjEielVln4bT/5w [13] Thirdly, whilst the 3rd parties contend that the indemnity which they are seeking against the 4th parties herein goes beyond the scope of the indemnity sought in the Suit 215, I find that the 3rd party may be caught by the doctrine of res judicata and/or issue estoppel. In this regard, the 4th parties here ought not to be exposed to two separate suits in which the 3rd parties is seeking indemnity or contribution in respect of the same agreements i.e. the CSAA, the Settlement Agreement and the Memorandum of Agreement. To do so as done in this case is an abuse of Court process. [14] With reference to the issue of res judicata, my findings on this issue is very much influenced by the decision of Somervell LJ in Greenhalgh v Mallard [1947] 2 AII ER 255. At page 257 of the report, the learned Lord Justice succinctly illustrates as follows: “res judicata for this purpose is not confined to issues which the court is actually asked to decide, but … it covers issues of facts which are so clearly part of the subject matter of litigation and so clearly could have been raised that it would be an abuse of the process of court to allow a new proceeding to be started in respect of them.” S/N K7WyOlGwjEielVln4bT/5w [15] Similarly, in Joseph Paulus Latip v Uniliver PLC [2012] 7 CLJ 707 the Federal Court stated as follows: “[31] In Henderson v Henderson [1843] 3 Hare 100, 67 ER 313, Vigram VC expressed the view that “the plea of res judicata applies not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligent, might have brought forward at the time.” Conclusion [16] In the above premise, I am constraint to hold that the Fourth Party Notices ought to be set aside. Accordingly, Encs. 654, 657, 660 & 663 is hereby allowed with costs of RM 5,000-00. S/N K7WyOlGwjEielVln4bT/5w Dated 15th November 2022, ………………………………….. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff: Messrs. Steven Thiru and Sudhar Partnership Unit A1-12-1, Arcoris Mont Kiara, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur [Ref: TKE/STN/LCSB&AHSB&LBCN/K&A/01 (18-222)] Solicitors for the Third Party: Messrs Wong Kian Kheong D1-U5-01, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur (Ref: 10336/2020)