1. ) LEMBAH KERJAYA SDN BHD (dalam penggulungan sukarela pemiutang) v 1. ) RIMBUN CORPORATE ADVISORY SDN. BHD. (WA-22NCvC-474-08/2023)

LEMBAH KERJAYA SDN BHD (COMPANY NO: 199701001932 (417428-X))

THE LIQUIDATOR FOR LEMBAH KERJAYA SDN BHD (COMPANY NO: 199701001932 (417428-X)) (IN CREDITOR’S VOLUNTARY LIQUIDATION) ... PLAINTIFFS

RIMBUN CORPORATE ADVISORY SDN. BHD.

2.

3.

4.

5.

6.

AYINTHIRALINGHAM JAMBULINGAM (CO-ADMINISTRATOR OF THE ESTATE OF JAMBULINGAM

GAYATHIRI JAMBULINGAM (CO-ADMINISTRATOR OF THE ESTATE OF JAMBULINGAM

CIMB BANK BERHAD (Company No: 197201001799 (13491-P)) ... DEFENDANTS 03/07/2025 16:01:10 WA-22NCvC-474-08/2023 Kand. 199 S/N Fs28wu/zu0C2imzmfSB1Q GROUNDS OF JUDGMENT (Enclosures 32, 87, 120, 122, 124, 126, 128 and 147 - Defendants’ Striking Out Applications) Introduction [1] All the Defendants in this suit had filed applications to strike out the Plaintiffs’ Writ and Statement of Claim (‘SoC’) dated 24.8.2023

D2 and D4 are licenced liquidators; and

D2 and D3 were made the signatories to P1’s HDA in 2009, after P1 went into liquidation. [24] D5 and the 6th Defendant (‘D6’) are individuals who were added as signatories to the HDA in 2011 together with D2 and D3. Furthermore –

D5 was the Head of Department for projects with D1’s associate company, Rimbun Capital Sdn Bhd from 2007 to 2017; and

D6 is the Managing Director and founder of Tinakaran Construction (M) Sdn Bhd. [25] The 7th Defendant (‘D7’) and D8 are the co-administrators of the estate of Jambulingam, deceased. [26] D9 is the bank whose branch keeps the 1st Plaintiff’s HDA which is currently active. S/N Fs28wu/zu0C2imzmfSB1Q [27] It is the Plaintiffs’ pleaded case that P2’s investigations into the affairs of P1 have revealed that –

P1 was also the owner of a property which is adjacent to the Project when it went into liquidation;

the total selling price (‘GDV’) of the 240 condominium units in the Project is RM36,858,953.00;

on 3.11.2009, D2 and D3 were made signatories to P1’s HDA. D2 and D3 remained signatories of P1’s HDA until the Order of the Court dated 23.5.2022 (‘23.5.2022 Order’) which directed D9 to register P2 as the sole signatory within seven days of the

the pre-winding up HDA bank statements between 16.7.2003 and 28.2.2009 show that –

in total, a sum of RM17,028,327.63 and interest in the sum of RM23,788.21 had been deposited into P1’s HDA;

(ii) in total, a sum of RM16,888,098.94 had been withdrawn; and

(iii) the closing balance was RM164,016.90.

around 1.4.2011, D5 and D6 were made co-signatories to P1’s HDA together with D2 and D3 and they remained as such until the 23.5.2022 Order; and

the post-winding up HDA bank statements between 31.3.2009 and 28.2.2021 show that –

the opening balance was RM164,016.90;

(ii) a sum of RM6,338,122.08 and interest in the sum of RM6,074.43 had been deposited into the HDA account and a total sum of RM6,508,357.30 had been withdrawn; and

(iii) the closing balance was-RM143.89. [28] The causes of action against D1 to D8 are –

conspiracy to defraud or injure;

dishonest assistance;

knowing receipt;

recovery of P1’s property;

declarations; and

accounts and inquiries. [29] According to the Plaintiffs, the GDV for the Project is RM36,858,953.00. In total, a sum of RM23,366,449.71 had been deposited into the HDA account, pre and post winding up. Therefore, there is a sum of RM13,492,503.29 that has not been accounted for. The sum of RM6,508,357.30 which had been credited to the HDA S/N Fs28wu/zu0C2imzmfSB1Q account and withdrawn post-winding up has also not been accounted for. [30] The cause of action against D9 is for breach of its contractual and fiduciary duties owed to P1 to prevent unauthorised transactions in the HDA. The Legal Principles [31] O. 18, r. 19(1) RC 2012 reads as follows: “Striking out pleadings and endorsements (O. 18, r. 19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, S/N Fs28wu/zu0C2imzmfSB1Q and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”. [32] In SS Motor Century Sdn Bhd v Wawasan Sinar Gemilang Sdn Bhd and 4 ors [2025] AMEJ 1249, I had set out the trite legal principles which are applicable when a court is faced with a striking out application, or in the instant case, applications, in these words: “[16] In considering the instant application, I am guided by the trite legal principles as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under O.18, r. 19(1) of the RC 2012, namely where a claim is on the face of it obviously unsustainable. The degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail of the issues of law and/ or fact. The summary procedure cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action. The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious [see Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC) and Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 (FC)]. The discretionary power may only be exercised in plain and obvious S/N Fs28wu/zu0C2imzmfSB1Q cases where the case has no chance of success [see Pengiran Othman Shah Bin Pengiran Mohd Yusoff v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) [1996] 1 MLJ 309 (CA)]. So long as the SoC discloses a reasonable cause of action, however weak the claim is, it cannot be struck off summarily [see Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 2 CLJ 457 (CA) and Dato’ Raja Ideris Raja Ahmad & Ors v Teng Chang Khim & Ors [2012] 2 CLJ 288 (CA)]. The court will assume that the contents of the statement of claim are true [see Tuan Haji Ishak Bin Ismail & Ors v Leong Hup Holdings Bhd and

in determining an application pursuant to limb (a) of O.18, r. 19(1) RC 2012, O. 18, r. 19(2) provides that no evidence shall be admissible on an application under the said limb. This means that limb (a) must be considered without having regard to the AIS and AIR. The court must be satisfied that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief which it asked for (see Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 (CA) and Amanah Raya Bhd v. Ong Chin Hoo [2019] 6 CLJ 41);

in the context of limb (b) of O.18, r. 19(1) RC 2012, the word “scandalous” means wholly unnecessary and irrelevant and not merely unpleasant allegations. The words “frivolous or vexatious” refer to a groundless action of statement with no prospect of success, often raised to embarrass or annoy the other party to the action. The court has to consider the affidavit evidence adduced by the parties (see Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 (CA) and Thong’s case (supra)];

if a party introduces a pleading which is unnecessary or tends to delay, prejudice or embarrass the trial, the pleading becomes one which is susceptible to be struck out pursuant to limb (c) of O.18, r. 19(1) RC 2012. A pleading becomes embarrassing when it is not clear what is being pleaded (see Duta Arif Sdn Bhd & Ors v Chartered Development Corp & Ors [2008] 6 MLJ 139); and

as regards limb (d) of O.18, r. 19(1) RC 2012, an abuse of the process of the court refer to situations where the court’s process is used for an unlawful object and not for the actual purpose intended to achieve justice. The judge is entitled to consider the affidavit evidence [see Thong’s case (supra)].” S/N Fs28wu/zu0C2imzmfSB1Q (see too, the case authorities as cited by the parties, namely Shahidan Shafie v. Atlan Holdings Bhd & Anor & Other Appeals [2005] 3 CLJ 793, Eon Bank Bhd v Gandarama Sdn Bhd [2007] 4 MLJ 247, Indah Desa Saujana Corporation Sdn Bhd & Ors v James Foong Cheng Yuen & Anor [2008] 2 MLJ 11, Small Medium Enterprise Development Bank Malaysia Berhad v. Sigma Pelangi Systems Sdn Bhd [2016] CLJU 943, Regal Elite Letrik Sdn Bhd v. Country Garden Danga Bay Sdn Bhd [2022] CLJU 551, and Swan Property Sdn Bhd & Ors v. Maybank Trustees Bhd & Another Appeal [2023] 2 CLJ 952). [33] The issues which arose for determination in respect of D1’s to D9’s applications and my findings are elaborated below: I. Application by D1 to D4 and D6 in encls. 120, 122, 124, 126 and 128 1st Issue: Whether the SoC discloses a reasonable cause of action [34] D1 to D4 and D6 submitted that the SoC fails to disclose a reasonable cause of action as it is devoid of necessary particulars and consists of bare allegations without material facts. The alleged causes of action are said to have not been pleaded with sufficient specificity. [35] The gist of the Plaintiffs’ counterarguments are as follows:

the Court’s task is to cursorily examine the SoC to determine whether the pleaded facts establish the causes of action as the S/N Fs28wu/zu0C2imzmfSB1Q Defendants have not filed their Defence and hence, the Plaintiffs’ claim has not been traversed and is deemed admitted;

pleadings contain facts not evidence (see O. 18, r. 7(1) RC 2012). The Defendants’ submission that the Plaintiffs failed to plead what the actual actions of the conspiracy were, i.e. its scheme and how it was carried out, are matters within the Defendants’ knowledge. It is evidence. The evidence to prove the Plaintiffs’ claim is only presented after the Defendants have presented their defence and after a full trial with the benefit of discovery, further and better particulars, accounts and inquiries and cross-examination;

the reliefs sought in this action are not suitable to be determined summarily. The Plaintiffs are seeking orders for declaration and hence, it is not proper to strike out the suit on the ground that it discloses no reasonable cause of action (see Dato’ Raja Ideris bin Raja Ahmad & Ors v. Teng Chang Khim (Chairman of the Select Committee on Competence, Accountability and Transparency and the Chairman of the Committee of Rights and Privileges State Legislative Assembly of Selangor) & Ors [2012] 5 MLJ 490). Additionally, the Plaintiffs are seeking to lift D1’s corporate veil. Whether D1 had acted with a degree of impropriety to justify disregarding the corporate veil can only be decided once all material evidence has been adduced and tested in court (see Mohamad Tirmizi bin Ishak v. Kumpulan PM Melati

as regards the cause of action for conspiracy to defraud or injure, dishonest assistance and knowing receipt, the SoC has S/N Fs28wu/zu0C2imzmfSB1Q particularised all the facts and ingredients necessary to establish each of these causes of action. In particular –

a claim founded on conspiracy can only be resolved at trial and the summary process of terminating the Plaintiff's claim upon affidavit evidence is inappropriate without the advantage of oral evidence, cross examination, discovery and interrogatories (see Mohamad Tirmizi Bin Ishak v Kumpulan Pm Melati Sdn Bhd & Ors [2022] MLJU 849 and Omega Holdings Bhd v Dato’ Tiah Thee Kian & Ors [2002] 6 MLJ 20). Furthermore, the difficulty in identifying the exact relationship of the various parties is not an insurmountable one. The proper relationship of all the relevant parties would surface eventually through discovery before the trial and examination of witnesses at the trial (see The Osprey [2000] 1 SLR 281);

(ii) a cursory perusal of the SoC shows that there has been disposal of P1’s assets held on trust which the Defendants had dishonestly procured resulting in loss to P1; and

(iii) the question of how the assets were disposed and who received the assets are matters within the Defendants’ knowledge to be resolved by evidence presented at a full trial after the benefit of discovery, further and better particulars, accounts and inquiries and cross-examination. [36] In determining whether D1 to D4 and D6 has established a case for striking out of the Plaintiffs’ claim pursuant to limb (a) of O. 18, r. 19(1) RC 2012, I am mindful that no evidence shall be admissible and D1 to S/N Fs28wu/zu0C2imzmfSB1Q D4 and D6 must refer only to the SoC [see Indah Desa Saujana Corporation Sdn Bhd (supra)]. [37] The Plaintiffs’ pleaded case for conspiracy to defraud or injure can be found in the following excerpt from the SoC: “30. It is the Plaintiffs’ case that Jambulingam (represented here by Defendants 7 and 8) and the 1st to the 6th Defendants had conspired to defraud and to injure the 1st Plaintiff, the particulars of which are as follows:

30.1. That, two or more Defendants:

30.1.1. Had agreed to unlawfully dispose of 1st Plaintiff's land adjacent to Kondominium Putra lntan;

30.1.2. The agreement was for the purpose of defrauding or injuring the 1st Plaintiff; and

30.1.3. The acts done in execution of that agreement resulted in damage to the 1st Plaintiff.

30.2. After taking into account sums that were deposited into the HOA, pre and post winding up, there is still a shortfall of RM13,492,503.29 in the GDV. It is the Plaintiffs’ claim that:

30.2.1. There was an agreement between two or more Defendants to unlawfully divert RM13,492,503.29 away from the 1st

30.2.2. The agreement was for the purpose of defrauding or injuring the 1st Plaintiff; and

30.2.3. The acts done in execution of that agreement resulted in damage to the 1st Plaintiff.

30.3. The sum of RM 6,508,357.30 in the HDA post winding up are trust monies which form part of the pool of funds available for distribution among the 1st Plaintiff’s creditors. This is or ought to be known by the 2nd, 3rd, 5th and 6th Defendants who were in control of the funds in the HDA. It is the Plaintiffs' claim that:

30.3.1. There was an agreement between two or more Defendants to misappropriate RM 6,508,357.30 from the HDA;

30.3.2. The agreement was for the purpose of defrauding or injuring the 1st Plaintiff; and

30.3.3. The acts done in execution of that agreement resulted in damage to the 1st Plaintiff.”. [38] The Plaintiffs relied on the case of Yap J.H. v Tan Sri Loh Boon Siew & Ors. [1991] 4 CLJ Rep 243 for the elements to establish a case of conspiracy, namely, an agreement between two persons; an agreement for the purpose of injuring the plaintiff; and acts done in execution of that agreement resulted in damage to the plaintiff. [39] On the other hand, D1 to D4 and D6 cited the judgment by the Court of Appeal in Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394 at paragraphs 31, 43 and 48 to support its contention that the Plaintiffs failed to plead the agreement between the Defendants to conspire and state precisely what was the purpose of the alleged conspiracy as well as the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy (see too, Ace Capital Growth Sdn Bhd v Kua Kee Koon & Ors [2021] MLJU 1959 at paragraphs 22 - 28 and 36). [40] Upon a plain reading of the SoC, I am of the considered view that the pleading on the alleged conspiracy to defraud or injure is too general as all that is says is that “two or more Defendants” had agreed to unlawfully dispose of P1’s land, and that there was an agreement between “two or more Defendants” to unlawfully divert RM13,492,503.29 away from P1 and to misappropriate RM6,508,357.30 from the HDA. Which of the Defendants between D1 and D6 who have conspired with Jambulingam to defraud and injure P1 has not been identified. S/N Fs28wu/zu0C2imzmfSB1Q [41] Also, the pleadings do not identify when the agreement to conspire took place, what is the scheme and how it was carried out. I agree with the submission by D1 to D4 and D6 that the Plaintiffs has failed to plead the “who, what, where, when and how of the alleged conspiracy” and this failure cannot be made good by affidavit evidence. [42] In sum, the Plaintiff’s allegations of conspiracy to defraud or injure is deficient as the material particulars for an actionable claim in conspiracy are absent. The SoC does not disclose a reasonable cause of action for conspiracy to defraud or injure. [43] Proceeding next to the Plaintiffs’ pleaded case for dishonest assistance, this can be seen in the following paragraphs from the SoC: “31. Jambulingam (represented here by Defendants 7 and 8) had committed a breach of trust and abrogated his duties and obligations which resulted in the dissipation of the 1st Plaintiffs assets.

It is the Plaintiffs' case that the 1st to 6th Defendants had instigated and were instrumental in Jambulingam’s breaches. From the 1st Plaintiffs records and the 2nd Plaintiffs investigations, it appears that Jambulingam was never a signatory to the HDA. Further, it was the 2nd Defendant in his capacity as the director of the 1st Defendant who had executed the material correspondences.

In the event the Defendants are unable to account for the shortfall in GDV of RM13,492,503.29 and RM6,508,357.30 that was deposited in Plaintiff 1’s HDA post winding up, it is the Plaintiff’s case that that those sums had been dishonesty misappropriated to benefit themselves, individually or jointly.”. [44] The Plaintiffs drew support from the celebrated case of SRC International Sdn Bhd & Anor v Dato’ Sri Mohd Najib Bin Hj Abd Razak [2022] 10 MLJ 95 in submitting that, to establish a case of dishonest assistance, the plaintiff must prove there has been a disposal of his assets in breach of trust or fiduciary duty in which the defendant has assisted or which he has procured and the defendant has acted dishonestly resulting in loss to the plaintiff. [45] However, in my opinion, the Plaintiffs’ pleadings suffer from the same weaknesses as the cause of action which was discussed earlier because, from a plain reading of the SoC, all that is said is that Jambulingam had committed a breach of trust and abrogated his duties and responsibilities and that D1 to D6 had instigated and were instrumental in Jambulingam's breaches. [46] There is no pleading on the primary breach of trust or fiduciary duty, how D1 to D6 assisted dishonestly and how the alleged acts led to P1’s losses. There is no averment on D1’s to D6’s actions which were instrumental in influencing Jambulingam. The Plaintiff has failed to identify the role played by D1 to D6 in relation to the alleged dishonest assistance and how they were involved in Jambulingam's breach. In short, the Plaintiff has again failed to plead the “who, what, where, when and how of the alleged dishonest assistance”. S/N Fs28wu/zu0C2imzmfSB1Q [47] Allegations of dishonest assistance must be pleaded with precision and should not be speculative in order for the Defendants concerned to provide a meaningful response (see Syarikat Usahasama KAM-LDAH Sdn Bhd v Tetuan Bala Pillai & Co [2021] MLJU 2825 at paragraphs 71 - 74). [48] I have no hesitation in concluding that the SoC does not disclose a reasonable cause of action for dishonest assistance. [49] Moving on to the final cause of action on knowing receipt, the Plaintiffs’ statement is contained in one sentence as follows: “34. In this regard, it is the Plaintiffs’ case that two or more Defendants had knowingly received the 1st Plaintiff’s assets which they knew or ought to have known were held on trust or subject to a fiduciary duty.”. [50] This time the Plaintiffs relied on the decision by the Court of Appeal in Ooi Meng Khin v Amanah Scotts Properties (KL) Sdn Bhd [2014] 6 MLJ 488 for the elements which the Plaintiffs must prove i.e. there was a disposal of the plaintiff’s assets in a breach of fiduciary duty; the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and there was knowledge on the part of the defendant that the assets received are traceable to the breach of fiduciary duty. [51] In the instant case, the Plaintiff has clearly not pleaded what specific assets were received, which Defendant received the assets and how S/N Fs28wu/zu0C2imzmfSB1Q the recipient knew or ought to have known that the assets were held on trust. [52] Moreover, the Plaintiff did not plead any particulars regarding the Defendants’ knowledge that the assets were held on trust or subject to a fiduciary duty. This is yet another bare statement. Without pleading the essential elements of knowing receipt, the Plaintiffs’ claim is unsustainable and must be struck out as a matter of law. [53] In conclusion, the SoC does not disclose a reasonable cause of action for knowing receipt. 2nd Issue: Whether the Plaintiff’s claim is vexatious and/ or frivolous [54] The Plaintiffs asserted that the facts supporting, and the constituent ingredients of, their causes of action have been pleaded. In the event the Defendants are unable to account for the shortfall in GDV of RM13,492,503.29 and RM6,508,357.30 that was deposited in the post-winding up HDA, these sums had been dishonesty misappropriate to benefit the Defendants, individually or jointly. Whether or not the Plaintiffs’ claims constitute a “fishing expedition” is to be determined at the discovery stage. [55] It was emphasised that the application to obtain particulars and documents which was dismissed by the Court of Appeal was only against D4 and it does not preclude interrogatories and discovery against the other Defendants. In fact, the Court of Appeal had decided that the interrogatories and discovery sought against D4 would be better addressed in this suit. S/N Fs28wu/zu0C2imzmfSB1Q [56] Upon deliberation of the submissions, I was persuaded by the arguments by D1 to D4 and D6 that the Plaintiffs’ claim is vexatious and frivolous because it lacks any substantive factual basis and is speculative in nature. [57] The Plaintiffs concede in their written submission that it requires discovery to identify the involvement of parties. This indicates a lack of evidence from the outset, rendering the claim fundamentally flawed. [58] Further, the request for accounts and inquiries confirms uncertainty and the Plaintiffs are apparently using the tactic of filing a claim first and hoping to find evidence later on. This is certainly not permissible. [59] As I was minded to allow the application by D1 to D4 and D6 under limbs (a) and (b) of O. 18, r. 19(1) RC 2012 primarily for the reason that the SoC does not contain sufficient particulars as to the pleaded case for conspiracy to defraud and to injure P1, dishonest assistance and knowing receipt, there is no necessity for me to consider and decide on the submissions in relation to whether the Plaintiffs’ claim is an abuse of the court’s process. II. Application by D5 (encl. 32) [60] D5 chose to rely on only limb (a) of O. 18, r. 19(1) RC 2012 in its application. Basically, to D5, the SoC is obviously unsustainable on the ground that the Plaintiffs have failed to plead the material facts and necessary elements required for the alleged causes of actions against D5, which the Plaintiffs contend are as follows:

conspiracy to defraud or injure;

dishonest assistance;

knowing receipt;

recovery of P1;

declarations; and

accounts and inquiries. [61] Akin to the arguments put forth in relation to the application by D1 to D4 and D6 as discussed above, the Plaintiffs submitted that their causes of action and the facts giving rise to them are clearly particularised in the SoC. [62] Moreover, D5 admitted that he was tasked with the management, revival and completion of various abandoned projects, including, Kondominium Putra Intan, and that he was a voluntary signatory to the HAD from 2011. The makes him a necessary party to this action. [63] The Plaintiffs took the position that they have given sufficient particulars for D5 to understand the nature of the case against him. The agreement to conspire between D5 and the other Defendants may be oral and D5’s intention to conspire, when the conspiracy took place, how it was executed and whether D5 had benefitted from the conspiracy are all matters within the knowledge of D5 that requires a full trial (see Insas Credit & Leasing Sdn Bhd & Ors v Kerjajadi Sdn Bhd & Ors [2003] 6 CLJ 234). S/N Fs28wu/zu0C2imzmfSB1Q [64] D5’s Defence is that he has “no specific knowledge and cannot recall” the factual statements in the SoC, he performed his acts as signatory of the HDA pursuant to his employment and the Plaintiffs are put to strict proof. By putting the Plaintiffs to strict proof, the Plaintiffs contended that D5 himself admits that there are factual allegations in the SoC which must be proved at a trial. [65] Furthermore, at paragraphs 5 and 14 of D5’s Defence, he states that he “contends and will contend” the factual allegations therein. The phrase “will contend” implies that D5 will establish these facts at the trial. Therefore, there are triable issues and it would be premature at this early stage to strike out the Plaintiffs’ claim. D5’s alleged co-conspirators i.e. D1 to D4 and D6 have not filed their Defence. Once filed, if at all, there may be further triable issues involving D5. [66] Meanwhile at paragraph 13 of D5’s Defence, D5 denies that P1’s assets are held on trust or subject to a fiduciary duty. D5 contended that this is a question of law which must be determined by a Judge at the end of a trial. [67] Firstly, I will deal with the Plaintiffs’ contention on the authority of Hashim bin Din v. Sato Kogyo Co Ltd [1988] 1 MLJ 5275 that, when assessing whether to strike out a suit on the grounds that it does not disclose a reasonable cause of action, the Court must look at the pleadings of all parties. With respect, this argument is in flagrant disregard of the judgment by the Court of Appeal in Indah Desa Saujana Corporation Sdn Bhd (supra) that in an application to strike out pursuant to O. 18, r. 19(1)(a) RC 2012, the court should only look at the plaintiff’s SoC and nothing more. S/N Fs28wu/zu0C2imzmfSB1Q [68] Therefore, the Plaintiffs’ reliance on D5’s Defence to support its argument and to illustrate the existence of triable issues to oppose D5’s application is unsustainable in law. The issue on whether the Plaintiffs have pleaded the necessary material facts to enable them to prosecute their claim and whether the Plaintiffs’ claim raises any triable issues or is meritorious are distinct matters. In Mohamad Tirmizi bin Ishak (supra), the court found that the plaintiff’s pleadings were not hopeless or baseless for it to be struck out and reiterated the trite principle that a case should not be struck out if there are triable issues. However, in the present case, the Plaintiffs failed to plead and to particularise the material facts necessary to establish the causes of action on conspiracy, dishonest assistance and knowing receipt. In other words, this case belongs to the category of cases where it is plain and obvious such that a judge can say at once that a SoC as it stands is insufficient, even if proved, to entitle the plaintiff to the relief which he asks for [see Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor And Another Appeal [1998] 2 MLJ 498, Abdul Rahim Bin Abdul Hamid (supra) and EON Bank Bhd (supra)]. [69] The key paragraphs in the SoC in relation to the causes of action on conspiracy to defraud or injure, dishonest assistance and knowing receipt are as quoted earlier. Upon consideration of D5’s and the Plaintiffs’ submissions, I was persuaded by D5’s arguments that the Plaintiffs have failed to plead the material facts to prove the elements of all three causes of action. The SoC is bare and bereft of the particulars required to prosecute the alleged claims. [70] For the sake of completeness, D5 had addressed the “causes of action” which are pleaded at subparagraphs 27.4 to 27.6 of the SoC, namely for recovery of P1’s property, declarations, and accounts and S/N Fs28wu/zu0C2imzmfSB1Q inquiries. Obviously, these are not causes of action but are remedies prayed by the Plaintiffs. [71] In conclusion, the causes of action raised against D5 are defective for want of particulars that renders the claims obviously unsustainable and this is a fit and proper case for the Writ and SoC to be struck off against D5. D5’s application pursuant to limb (a) of O. 18, r. 19(1) RC 2012 was therefore allowed. III. Application by D7 and D8 (encl. 87) 1st Issue: Whether the Plaintiffs’ action against D7 and D8 ought to be struck out under O. 18, r. 19(1) RC 2012 and/ or pursuant to the inherent jurisdiction of the Court [72] Essentially, three sub-issues were raised by D7 and D8 and these shall be discussed in turn, below. Sub-issue (i): Whether the Plaintiffs’ action against D7 and D8 is time barred under sub-s 8(3) of the Civil Law Act 1956 [Act 57] (‘CLA 1956’) [73] Sub-s 8(3) CLA 1956 reads as follows: “Effect of death on certain causes of action

… S/N Fs28wu/zu0C2imzmfSB1Q

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either –

were pending at the date of his death; or

are taken not later than six months after his personal representative took out representation.”. [74] According to the Plaintiffs, the above statutory provision does not apply in this case because s 8 is in Part III of the CLA 1956 titled “FATAL ACCIDENTS AND SURVIVAL OF CAUSES OF ACTION”. The Federal Court in the case of Ketua Polis Negara & Ors v Nurasmira Maulat Jaffar & Ors and Other Appeals [2017] 6 MLRA 635 had considered the second reading of the Civil Law Bill on 15.5.1956 where the Attorney General said that Part III of the Bill deals with the law relating to fatal accidents. On the facts of that case, the Federal Court concluded that Part III CLA does not deal with instances where an individual is killed while in protective custody since such deaths do not fall within the definition of “accidents”. In the instant case, the deceased, Jambulingam, died of natural causes. Therefore, s 8 CLA 1956 does not apply. [75] The learned counsel for D7 and D8 drew my attention to several case authorities which had dealt with the legal effect of sub-s 8(3) CLA 1956 viz. Loo Khoo Chin And Loo An Mooi & Anor v. Tan Cheng Hang & Ors [1997] 1 CLJ 109, Neo Tiang & Anor v. Wong Hon Mun [1998] 5 CLJ 499 and Dato' Eii Ching Siew @ Yii Ching Siew v. Hairie Zairel Oh & S/N Fs28wu/zu0C2imzmfSB1Q Ors [2021] CLJU 1953 to support the proposition that the period prescribed by sub-s 8(3) CLA 1956 is a period of limitation; so long as the proceeding is brought against the estate of the deceased person not later than six months after the grant of the letters of administration, the proceeding is not time-barred, and the wordings therein does not support the contention that it is applicable only to claims relating to death by accident. [76] Further, I was inclined to agree with the submission by D7 and D8 that the Plaintiffs are barred from filing this action against them in respect of the causes of action in tort as pleaded by the Plaintiffs in the SoC as the proceedings were not pending at the date of Jambulingam’s death on 3.10.2017. The Grant of Probate was issued by the Kuala Lumpur High Court on 22.12.2017 and D7 and D8 took out representation. The Plaintiffs’ action is clearly time-barred under sub-s 8(3) CLA 1956 as it was commenced on 24.8.2023, which is more than six months after the personal representatives of the deceased Jambulingam had taken out representation or the issuance of the grant of probate Sub-issue (ii): Whether D7 and D8 have any knowledge and were involved in the management or administration of P1 [77] The Plaintiffs insisted that the late Jambulingam has an interest in these proceedings and hence, the personal representatives of Jambulingam were correctly joined as parties. It was contended that among the triable issues involving Jambulingam are whether Jambulingam had violated the clear terms of the 10.12.2009 Order which only authorised Jambulingam personally to deal with funds in P1’s HDA and whether the power given to Jambulingam vide the

10.12.2009 Order may be sanctioned or delegated to D2, D3, D5 and D6. [78] The learned counsel for the Plaintiffs argued that, while the Court may, at the end of the trial, decide that Jambulingam’s personal representatives are not liable to account for the sums withdrawn, however, based on the questions of law as posed above, this is not a plain and obvious case for striking out. [79] In addition, in their Defence, D7 and D8 had put the Plaintiffs to strict proof. By doing this, the Plaintiffs contended that D7 and D8 have admitted that there are factual disputes which must be proven at a trial. Pleadings contain facts, not evidence and at this interlocutory stage, the Plaintiffs are not compelled to lay out all the evidence on which they will rely at the trial to support their claim. [80] However, it is my finding that D7 and D8 have no knowledge, and were not involved, in the management or administration of P1. They will face difficulties defending this suit and thereby suffer serious injustice and prejudice. [81] D7 and D8 are only the Executors of the estate of the late Jambulingam and they are not in the position to give an account on any alleged shortfall in the GDV or amounts which were purportedly deposited in P1’s HAD post winding-up. They have no fiduciary duties or obligations to P1. They had never dealt with the other Defendants or any of the Defendants on matters concerning the management, administration or any assets of P1. S/N Fs28wu/zu0C2imzmfSB1Q 2nd Issue: Effect on the Plaintiffs’ action against D7 and D8 in the event the Plaintiffs’ action against D1, D2, D3, D4, D5 and D6 is ordered to be struck out [82] When D7’s and D8’s application in encl. 87 was filed, the Plaintiffs’ action against D1 to D6 had been struck out on 26.4.2024 due to the Plaintiffs failure in paying D1 to D6, each a sum of RM50,000.00 towards security for costs, within the time period as ordered by the Court on 19.2.2024. In their Affidavit In Support, D7 and D8 had raised this fact as one of the reasons why the Plaintiffs’ action against them ought to be struck out. [83] Subsequently, the Plaintiffs’ suit against D1 to D6 was reinstated following the Plaintiffs’ appeal against the Order for payment of security for costs, which was allowed by the Court of Appeal. [84] D1 to D6 then filed the applications as discussed in the preceding part of this judgment whereby I found that they have established their case for striking out of the Plaintiffs’ instant suit. D7 and D8 thus argued that the Court may exercise the power under its inherent jurisdiction to strike out the Plaintiffs’ action against D7 and D8. [85] The Plaintiffs resisted D7’s and D8’s stance on this matter by submitting that, irrespective of whether the suit against D1 to D6 is struck out, the questions posed against Jambulingam are relevant in the Plaintiffs claim as against D9. [86] D9 is said to have admitted in its Defence that it had full knowledge of the terms of the 10.12.2009 Order at the material time. The 10.12.2009 Order only authorised Jambulingam personally to deal with funds in S/N Fs28wu/zu0C2imzmfSB1Q P1’s HDA. D9 additionally admitted that D2 and D3 were made signatories to the HDA in 2009, after P1 went into liquidation and in 2011, D5 and D6 were made signatories to the HDA together with D2 and D3. [87] The suit was brought against D9 for an order for damages for breach of duty and obligation by failing to prevent unauthorised withdrawals from the HDA account. Therefore, if the questions against Jambulingam are answered in the Plaintiffs’ favour, D9 may be liable in damages for breach of its banker-customer duty of care. [88] In my considered view, the Plaintiffs’ action against D7 and D8 are no longer maintainable against D7 and D8 in respect of the Plaintiffs’ allegations of conspiracy to defraud or injure, dishonest assistance and knowing receipt (as pleaded in the SoC) against the late Jambulingam, which is closely related to, and which involves, two or more of the other Defendants i.e. D1 to D6. [89] In the light of the decision as regards the applications by D1 to D6, the Plaintiffs would have no prospect of succeeding in their case against D7 and D8 based on the Plaintiffs’ allegations against the late Jambulingam. The Plaintiffs’ action against D7 and D8 is no longer maintainable. [90] The application by D7 and D8 pursuant to limbs (b), (c) and (d) of O. 18, r. 19(1) RC 2012 was thus allowed. S/N Fs28wu/zu0C2imzmfSB1Q IV. Application by D9 (encl. 147) [91] D9’s application was made pursuant to limbs (a), (b) and/ or (d) of O. 18, r. 19(1) RC 2012 and it was heard and decided after the applications in Parts I, II and III above were disposed. [92] The Plaintiffs’ pleaded case against D9 can be seen in paragraphs 44 to 48 of the SoC which is reproduced below for ease of reference: “44. Alternatively, the cause of action against the 9th Defendant is for breach of duties and obligations owed to Plaintiff 1.

The Court Order dated 10.12.2009 only authorised Jambulingam to deal with the monies in the HDA account which is kept by the 9th Defendant. The 9th Defendant has full knowledge of the terms of the Order.

However, in breach of that Order, the 9th Defendant had, unlawfully:

46.1. Permitted the 2nd, 3rd, 5th and 6th Defendants to be made signatories to the HDA.

46.2. Permitted two or more individuals to deal with the RM6,508,357.30 in the HDA, post winding up.

46.3. Permitted two or more individuals to make withdrawals of RM6,508,357.30 from the HDA.

Therefore, Defendant 9 had breached its contractual and fiduciary duties owed to Plaintiff 1 to prevent unauthorised transactions in the HDA.

On 23.5.2022, the High Court ordered the 9th Defendant to provide the 2nd Plaintiff with, inter alia, images of all cheques issued from the date the HDA was opened until the date of that Order and all supporting documents for clearance of those cheques. To date, the 9th Defendant has failed to comply with that term of the Order.” (the claim in paragraph 46 as quoted above shall be referred to as the ‘1st Claim’ while the claim in paragraph 48 above shall be referred to as the ‘2nd Claim’). [93] The order sought by the Plaintiffs against D9 was for damages in the sum of RM6,508,357.30 to be paid by D9 to P1 for breach of duty and obligation in failing to prevent unauthorised withdrawals from the HAD, post winding-up (see paragraph 49, SoC). [94] In its written Submissions (encl. 185), D9 had summarised the grounds in support of its application as follows:

the SoC does not disclose a reasonable cause of action against D9 because –

there is no particularisation of any of the Plaintiffs’ alleged causes of action against D9; and

(ii) D9 does not owe duties to the Plaintiffs in relation to the operation of the HDA. If there was any cause of action in relation to the change in signatories to the HDA or the authorised withdrawals from the HDA, such a complaint should be made by the beneficiaries of the HDA against P1 or P2, and not by P1 or P2 against D9 (see the decision by the Federal Court in Ricky Thong Yew Fook & Anor v Arab Malaysian Bank Bhd [2011] 4 MLJ 268);

the 2nd Claim does not disclose any reasonable cause of action as –

the 23.5.2022 Order was obtained post winding up against D9 in Suit No. WA-28PW-123-03/2022 (‘Post Winding Up Court’), and therefore, any application to enforce the 23.5.2022 Order should be made to the Post Winding Up Court which granted the same; and

(ii) there is no causal link between the alleged failure to comply with the 23.5.2022 Order and the alleged loss of RM6,508,357.30 suffered by the Plaintiffs, which would have occurred in April 2017; and

the Plaintiffs’ claims should be struck out as they are frivolous or vexatious, or otherwise an abuse of the process of the Court given that the 1st Claim is time-barred under paragraph 6(1)(a), LA1953. [95] The Plaintiffs objected to D9’s application on the following grounds:

there are triable issues pertaining to the Plaintiffs’ claim against D9. Based on the 10.12.2009 Order, D9 was to only allow P1’s previous Liquidator to deal with the monies in the HDA, which is a statutory account. D9 was aware of the 10.12.2009 Order at the material time. However, D9 failed to name the previous Liquidator as a signatory to the HDA and instead, allowed unauthorised third parties to deal with the monies in the HDA. Therefore, D9 had breached its banker-customer duties and obligations to P1 and the 10.12.2009 Order;

D9’s application is an abuse of process and mala fide. D9 had intentionally failed to comply with certain terms of an interrogatories and discovery Order dated 22.5.2023 (‘22.5.2023 Order’) granted by the Winding Up Court which relates to this case. D9 has not filed any application to the Court to dispense with the unfulfilled part of the 22.5.2023 Order. By the application in encl. 147, D9 is now attempting strike out the Plaintiffs’ claim in order to avoid compliance with the 22.5.2023 Order and to gloss over its breach of the 10.12.2009 Order by striking out this action; and

the intitulement to the 10.12.2009 Order shows that it is anchored on the provisions of the Companies Act 1965 and it directs D9 to only authorise Jambulingam to operate the HDA. However, D9 authorised third parties to operate the HDA, to the exclusion of Jambulingam. Therefore, the question whether D9 was correct is taking instructions from Jambulingam and allowing third parties to operate the HDA is a triable issue. S/N Fs28wu/zu0C2imzmfSB1Q [96] The Court had directed that the main written submissions were to be filed by 28.4.2025, but both the Plaintiffs’ and D9’s submissions (encls. 183 and 185) were filed only on 6.5.2025, without leave. Nevertheless, I chose to consider the main submissions as these would be of assistance in arriving at a decision on encl. 147. However, I did not consider D9’s Submissions In Reply (encl. 187). 1st Issue: Whether the SoC discloses a reasonable cause of action - Absence of particulars in the pleadings [97] In relation to the 1st Claim, the Plaintiffs pleaded that D9 had breached its contractual and fiduciary duties. However, I could not find any particulars in the SoC as to the specific contractual clause(s) that D9 is alleged to have breached. The absence of particularisation of the specific contractual clause(s) that had been breached was fatal to the Plaintiffs’ claim (see Cekap Mesra Development Sdn Bhd v. Che Seman Abdullah [2021] CLJU 1817). [98] Additionally, no particulars were pleaded as to any special relationship between the Plaintiffs and D9 which gives rise to a fiduciary duty. The failure to plead such a special relationship amounts to a failure to plead fundamental and material facts in order to form a reasonable cause of action (see Syarikat Logistik Petikemas Sdn Bhd v. Maruzen Sh Logistics Sdn Bhd [2020] CLJU 794 and Deepak Jaikishan A/I Jaikishan Rewachand & Ors v Dato’ Seri Mohd Najib Bin Tun Abdul Razak & Ors [2020] MLJU 1282). S/N Fs28wu/zu0C2imzmfSB1Q [99] In relation to the 2nd Claim, the Plaintiffs merely pleaded that D9 had not complied with the 23.5.2022 Order, without particularising any cause of action against D9. [100] In the circumstances, I agree with D9 that the Plaintiffs’ SoC does not disclose any reasonable cause of action against D9. [101] Before closing on this point, at the hearing of the application, I drew the attention of D9’s counsel to the citation of the decision by the High Court in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd [2017] MLJU 1868 in paragraph 19 of encl. 185, whereby the appeal against the decision to strike out the claim against the first defendant was allowed by the Court of Appeal (see [2020] 2 CLJ 295). Subsequently, a full trial was held before this Court in respect of the Plaintiff’s claim against the first defendant (see [2024] MLJU 1526). - Whether D9 owed any duties to the Plaintiffs [102] D9 made another persuasive argument in that, if there were any unauthorised change in signatories to the HDA or unauthorised withdrawals from the HDA, such complaint should be made by the beneficiaries of the HDA against P1 or P2, and not by P1 or P2 against D9 (see the decision by the apex court in Ricky Thong Yew Fook & Anor v Arab Malaysian Bank Bhd [2011] 4 MLJ 268). [103] I accepted D9’9 submission that, by applying the decision in Ricky Thong, the Plaintiffs’ pleaded claim against D9 based on breach of contractual and fiduciary duties does not disclose any reasonable cause of action because –

apart from the fact that no particulars were pleaded as to the specific contractual clause(s) that D9 had breached, P2 is only an extension of P1. There is no direct contractual relationship between P2 and D9;

there are no fiduciary duties owed by D9 to the Plaintiffs. Instead, if there are any fiduciary duties, these are owed by P1 as the housing developer to the property owners given that it was P1 which should apply the monies in the HDA strictly for the purposes it was intended (see Jeuro Developments Sdn. Bhd. & Ors v. Badan Pengurusan Bersama Kondominium Lagenda & Ors [2024] CLJU 701 and Bina Harta Group Sdn Bhd & Ors v.

if there is any cause of action, it is the beneficiary under the HDA, namely the purchasers of the Project, who should be filing a claim against D9, and not the Plaintiffs who have no authority to represent the purchasers. The monies in the HDA do not belong to the Plaintiffs. The general creditors of P1 are not necessarily the beneficiaries under the HAD; and

sub-ss 483(1) and (2) and paragraph (a) in the Twelfth Schedule of the Companies Act 2016 restrict P2’s rights to take legal action to claim for property and things in action belonging to P1 only, and not for P1’s creditors. S/N Fs28wu/zu0C2imzmfSB1Q - The 2nd Claim [104] Yet another convincing argument put forth by the learned counsel for D9 was the fact that the 23.5.2022 Order was obtained in the Post Winding Up Court, wherein the Plaintiffs and D9 are parties to the proceedings. The 23.5.2022 Order was not obtained in this Court. Therefore, even assuming the Plaintiffs have a valid cause of action, they should have filed an application in the Post Winding Up Court which granted the 23.5.2022 Order, rather than to file a separate action in this Court. [105] Moreover, there is no causal link between the alleged failure to comply with the 23.5.2022 Order and the alleged loss of RM6,508,357.30. The loss in the sum of RM6,508,357.30 purportedly suffered by the Plaintiffs would have occurred in April 2017 whereas the alleged failure to comply with the 23.5.2022 Order would have occurred only in 2022. 2nd Issue: Whether the Plaintiff’s claim is vexatious, frivolous and/ or an abuse of the process of the court [106] Paragraph 6(1)(a) of the LA 1953 provides as follows: “6. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

actions founded on a contract or on tort; …”. S/N Fs28wu/zu0C2imzmfSB1Q [107] As regards the 1st Claim and the alleged unauthorised change in signatories to the HDA, the defence of limitation is applicable as the change had occurred in 2009 for D2 and D3, and 2011 for D5 and D6 (see paragraphs 22.2 and 23, SoC). [108] Hence, any contention that D9 had breached its contractual duties by unlawfully authorising D2, D3, D5 and D6 to be made as signatories to the HDA is time-barred by 2015 i.e. six years from 2009, and 2017 i.e. 6 years from 2011, pursuant to paragraph 6(1)(a) of the LA 1953. [109] Moving on to the contention that D9 had breached its fiduciary duties by unlawfully authorising D2, D3, D5 and D6 to be made as signatories to the HDA, it is similarly time-barred due to the following reasons:

the limitation period of six years applies to a claim premised on breach of fiduciary duties in view of sub-s 6(6) of the LA 1953 which reads as follows: “(6) Subject to the provisions of sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity.” (see Kuan Shin @ Kuan Nyong Hin & Ors v Ng Aik Kee & Ors [2016] MLJU 1516); and

the exception under s 22 of the LA 1953 is inapplicable because it only applies in circumstances of fraud or fraudulent breach of trust, or recovery of trust property from a trustee. There is no allegation of fraud in the SoC against D9. Section 32 of the LA 1953 is also inapplicable as it only preserves the defences of laches and acquiescence. It does not have the effect of disapplying limitation periods. [110] As regards the purported unauthorised transactions which D9 had allegedly failed to prevent, the defence of limitation is similarly applicable given that the purported unauthorised withdrawal of RM6,508,357.30 took place from 31.3.2009 until 30.4.2017. This fact is not disputed by the Plaintiffs (see subparagraph 17.2 of the Affidavit In Support, encl. 148 and the Plaintiffs’ corresponding averment in paragraph 9, Affidavit In Reply, encl. 154). Thus, any contention that D9 had breached its contractual or fiduciary duties would have been time barred from 31.3.2015 until 30.4.2023. This suit was only filed on 24.8.2023. [111] Clearly, the 1st Claim is time-barred. It is trite law that once the issue of limitation is pleaded by D9 as a defence (see subparagraph 19.2(c) of the Defence), the burden shifts to the Plaintiffs to establish that the action was brought within time. The failure to discharge this burden of proof is a ground for allowing D9’s application under O. 18, r. 19(1)(b) or (d) RC 2012. [112] In its submission, D9 also alluded to s 29 of the LA 1953 which provides as follows: S/N Fs28wu/zu0C2imzmfSB1Q “29. (1) Where, in the case of any action for which a period of limitation is prescribed by this Act, either –

the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

the right of action is concealed by the fraud of any such person as aforesaid; or

the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it: Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which –

in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.

Section 6A shall not apply to any action to which paragraph (1)(b) applies.” [113] I have considered D9’s submission and there is merit in the contention that sub-s 29(1) of the LA 1953 does not apply as no allegation of fraud or mistake was pleaded against D9. The failure to plead and particularise fraud in the pleadings is fatal to any claim for fraud (see Cocoa Suchi Sdn Bhd v Pinebrook Holding Sdn Bhd [2016] 6 MLJ 381, Ambank (M) Bhd v. Abdul Aziz Hassan & Ors [2010] 7 CLJ 663 and Zul Ali & Ors v. Lembaga Lebuhraya Malaysia & Anor [2019] CLJU 585). [114] In paragraph 15.2, encl. 154, the Plaintiffs affirmed that: “Isu had masa juga tidak bermerit. Plaintif 2 hanya mengetahui fakta-fakta yang membawa kepada tindakan ini selepas beliau dilantik sebagai Pelikuidasi oleh mesyuarat pemiutang yang diarahkan oleh Mahkamah yang diadakan pada 2.3.2021 apabila beliau memulakan siasatannya terhadap hal ehwal Plaintif 1.”. S/N Fs28wu/zu0C2imzmfSB1Q [115] D9’s response is in subparagraph 9.2, encl. 169 whereby it was correctly posited that P2’s knowledge is irrelevant as any cause of action is vested in P1, and not in P2. [116] Therefore, even if s 29 of the LA 1953 is applicable, the Plaintiffs must show that P1 had knowledge of the material facts after 24.8.2020, which is within three years before the action was filed on 24.8.2023. Nevertheless, the facts show that –

Jambulingam, the lawful Liquidator of P1 appointed via a special resolution on 10.3.2009, had himself authorised the change in signatories to the HDA in 2009 for D2 and D3, and 2011 for D5 and D6; and

in respect of the allegedly unauthorised withdrawals of RM6,508,357.30 which took place from 31.3.2009 until 30.4.2017, the withdrawals occurred at a time when Jambulingam was granted absolute discretion to deal with the monies in the HDA and the monies in the HDA are within his sole custody and control until he finally passed away on 3.10.2017. (see subparagraphs 8.1 and 8.2 of the Plaintiffs’ Reply to Defence (encl. 31) where it was pleaded that: “8.1 The monies in the HAD are within the sole custody and control of the Liquidator for the 1st Plaintiff, i.e. Jambulingam.

8.2. By the 2009 Order, the Court had granted Jambulingam the absolute discretion to deal with S/N Fs28wu/zu0C2imzmfSB1Q the monies in the HDA. “Absolute discretion” simply means that Jambulingam had the authority to deal with the monies in any way he deems fit. The 2009 Order does not state that this power is delegable. Therefore, the so-called “Instructing Letter” issued by Jambulingam bears no significance. It is the 2009 Order that is relevant.”). [117] In view of the above, it is inconceivable that Jambulingam had no knowledge regarding the withdrawals in the sum of RM6,508,357.30. [118] Moreover, applying the case which was decided by the Supreme Court of New South Wales in Re Dover Pty Ltd And The Companies Act 1961

6 ACLR 307 as cited by the learned counsel for D9, the Plaintiffs’ response that P2 was only aware of the material facts since his appointment as Liquidator on 2.3.2021 is unsatisfactory because, being the sole lawful Liquidator, Jambulingam was acting as an agent for P1. Jambulingam’s knowledge of the change in authorised signatories to the HDA and his knowledge of the allegedly unauthorised withdrawals in the sum of RM6,508,357.30 should be ascribed to P1. His knowledge is the knowledge of P1. [119] Based on the aforementioned reasons, D9’s application was allowed under limbs (a), (b) and (d) of O. 18, r. 19(1) RC 2012. Conclusion [120] In conclusion, – S/N Fs28wu/zu0C2imzmfSB1Q

the application by D1 to D4 and D6 was allowed under limbs (a) and (b) of O. 18, r. 19(1) RC 2012;

the application by D5 was allowed under limb (a) of O. 18, r. 19(1) RC 2012;

the application by D7 and D8 was allowed under limbs (b), (c) and (d) of O. 18, r. 19(1) RC 2012; and

the application by D9 was allowed under limbs (a), (b) and (d) of O. 18, r. 19(1) RC 2012. [121] Costs of RM4,000.00 was ordered to be paid by the Plaintiffs to each of the Defendants (D1 to D9), subject to allocatur. Dated: 30 June 2025 (ALIZA SULAIMAN) Judge High Court in Malaya (NCvC2) Kuala Lumpur S/N Fs28wu/zu0C2imzmfSB1Q Counsels/ Solicitors: For the Plaintiffs: Sukhwinder Singh a/l N Mahinder Singh Messrs. Sukhwinder Singh N Mahinder Singh Advocates & Solicitors No.6-3-2, Jalan Setia Prima U13/Q Setia Alam 40170 Shah Alam Selangor For the 1st to 4th and 6th Defendants: Dheenish A/L Thevandran Messrs. S. Ravichandaran & Anuar Advocates & Solicitors B-05-06 & B-05-07, Gateway Kiaramas No. 1, Jalan Desa Kiara Mont Kiara 50480 Kuala Lumpur For the 5th Defendant: Sri Lachman Kumar Messrs. Christine Ng & Lachman Advocates & Solicitors Unit 32-01, Level 32 The Vertical Corporate Office Tower B Avenue 10 Bangsar South No. 8, Jalan Kerinchi 59200 Kuala Lumpur S/N Fs28wu/zu0C2imzmfSB1Q For the 7th and 8th Defendants: Eugene Louis Messrs. E.D. Louis & Associates Advocates & Solicitors Suite 8-12-10, Level 12, Menara Mutiara Bangsar Jalan Liku, Off Jalan Riong 59100 Kuala Lumpur For the 9th Defendant: Lee Ji Kean Messrs Rahmat Lim & Partners Advocates & Solicitors Suite 33.01, Level 33 The Gardens North Tower Mid Valley City, Lingkaran Syed Putra 59200 Kuala Lumpur