1. ) Muhammad Shahir Bin Khalid v 1. ) Ko Kangmin (WA-12BNCvC-34-02/2024)

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ACTIV8 HIM SPORTS SDN BHD [Company No.: 202001014466 ((1370786-U)] ... APPELLANTS

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HIM SPORTS SDN BHD [Company No.: 201801011742 (1273758-T)] ... RESPONDENTS IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO.: WA-B52NCVC-440-11/2021

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HIM SPORTS SDN BHD [Company No.: 201801011742 (1273758-T)] ... PLAINTIFFS

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ACTIV8 HIM SPORTS SDN BHD [Company No.: 202001014466 ((1370786-U)] ... DEFENDANTS 05/06/2025 11:12:38 WA-12BNCvC-34-02/2024 Kand. 34 GROUNDS OF JUDGMENT Introduction [1] This is an appeal by the Appellants against the decision of the learned Session Court Judge (‘SCJ’) on 2.2.2024 in allowing the Respondents’ claim with costs of RM7,000.00 and dismissing the Appellants’ counterclaim. [2] On 12.3.2025, after having considered the Record of Appeal and the submissions of the parties, I found, in respect of each ground of appeal, as follows:

the 1st ground that the SCJ erred in deciding to allow paragraph 44 of the Statement of Claim (‘SoC’), the appeal is dismissed;

the 2nd ground that the SCJ erred in deciding to allow paragraph 83 of the SoC, the appeal is allowed;

the 3rd ground that the SCJ erred in deciding to allow paragraph 100 of the SoC, the appeal is dismissed; and

the 4th ground that the SCJ erred in deciding that the Appellants have failed to prove their counterclaim against P1, the appeal is dismissed. [3] The Appellants are aggrieved by part of the decision of this Court, namely in respect of the 1st, 3rd and 4th grounds of appeal where their appeal was dismissed. [4] The full grounds for the decision are elaborated below. The parties shall be referred to as they were in the court below. Salient Facts [5] The salient facts as gathered from the SoC are as follows. [6] The 1st Plaintiff (‘P1’) is a Korean citizen with an address at A-15-05, Pavilion Hilltop, Mont Kiara, Jalan Changkat Duta Kiara, 50480 Kuala Lumpur. He is a qualified physiotherapist and a sport rehabilitation specialist for 28 years. [7] The 2nd Plaintiff (‘P2’) is a company incorporated under the Companies Act 2016 [Act 777] (‘CA 2016’) with its registered address at 23-1B, Jalan Bandar Sembilan, Pusat Bandar Puchong, 47160 Puchong, Selangor. [8] The 1st Defendant (‘D1’) is an individual having his address at A-3A-6, Surian Condominium, Jalan PJU 7/12B, Mutiara Damansara, 47180 Petaling Jaya, Selangor. [9] The 2nd Defendant (‘D2’) is an individual having his address at No. 17, Jalan 4N, Ampang Jaya, 68000 Ampang, Selangor. D2 is D1’s elder brother. [10] The 3rd Defendant (‘D3’) is a company incorporated under the CA 2016 with its registered address at 8-1B, Jalan Bandar Sembilan, Pusat Bandar Puchong, 47160 Puchong, Selangor. [11] P1, with his vast working and teaching experience in sports, has established a very successful sports rehabilitation center in Korea known as Him Sports Rehabilitation Center in October 2010. [12] On 27.3.2018, P1 established P2 in order to provide physiotherapy services for athletes under the name “Him Sports Rehabilitation Center” (‘HSRC’) at Solaris Mont Kiara, Kuala Lumpur. [13] D1 and D2 were former Malaysian footballers and they came to know about P1 when they visited HSRC. [14] Around March 2020, D1 and D2 approached P1 to convey their intention of establishing a sport performance training center which also provides physiotherapy services for athletes. The center is known as Traine. [15] P1 eventually agreed to enter into a joint venture business (‘JV’) with D1 and D2 on the following terms as proposed by D1 and D2:

D1 and D2 shall provide capital for the establishment of the JV entity, renovations and overhead expenses;

P1 will go to the center to provide physiotherapy services on alternate days or whenever needed;

P1 will be paid based on the number of patients to whom he provides physiotherapy services;

at the same time, P1 will continue P2’s business as usual; and

P1 and D2 shall each hold 33% of shares in the JV company while D1 will hold 34% of the shares. [16] On 17.6.2020, P1 and D2 established D3 with a paid-up capital of RM100.00. The shareholding structure of D3 is P1 and D2 hold 33% of the shares, respectively, while D1 holds 34% of the shares. All of them are the Directors of D3. [17] Around October 2020, D1 and D2 persuaded P1 to sell P2’s business to D3 so that P1 can provide his services on a full-time basis at Traine. D1 and D2 made an oral offer to purchase P2’s business for the sum of RM600,000.00. P1 accepted the offer subject to the following terms:

D1 and D2 have secured or shall secure additional clients as a result of referrals from various hospitals due to their father’s influence and connections in the medical and health sector;

the JV shall pay RM600,000.00 to P2 in December 2020;

the database of all P2’s customers shall be shared or transferred to D3;

P1 shall provide his services on a full-time basis at Traine;

P2’s existing employees shall be absorbed or transferred to D3; and

the physiotherapy equipment (‘PE’) which is owned by P2 shall not form part of the contract for the sale of P2’s business to D3 (‘Contract’). [18] P1 claimed that he had fulfilled the terms as set out in subparagraphs 17 (c) to (e) above. However, D3 has breached the Contract by failing to comply with the terms in subparagraphs 17 (a) and (b) above. [19] It was further alleged that P2 had suffered loss of revenue in the estimated sum of RM342,771.00 from December 2020 to October 2021 as P2’s monthly sales are in the region of RM31,161.00. After the entry into the Contract, P2 ceased operations since December 2020 as P1 had to provide physiotherapy services on a full-time basis at Traine. [20] Through their solicitors’ letter dated 29.9.2021, P1 and P2 terminated the Contract. P2 resumed operations in November 2021. [21] In the SoC, it was additionally pleaded that P1 had bought the PE to carry out P2’s business as listed in Annexure A to the SoC. Altogether 98 PE and other items such as furniture, television and blind curtains are tabulated in Annexure A. [22] P1 pleaded that he ceased working at Traine since June 2021 and he had taken the PE such as shock wave, ultrasound, gait view and gold bar (‘Said Equipment’) from Traine to provide physiotherapy services to the customers. This was made known to D1 vide a WhatsApp (‘WA’) message on 14.6.2021. [23] However, D1 lodged two police reports on 17.6.2021 and 12.7.2021 claiming that P1 had stolen the PE from Traine. P1 retaliated by making his own police report on 22.7.2021 and, among others, surrendering the Said Equipment to the Investigating Officer. No further action was taken by the police against P1. [24] Apart from the Said Equipment, the other items as per Annexure A to the SoC are still at Traine. [25] Through the same solicitors’ letter dated 29.9.2021, the Plaintiffs demanded for the PE and other items to be returned to them. As the Defendants failed to do so, the Plaintiffs alleged that D1 and D2 have committed the tort of conversion with the intention of depriving the Plaintiffs’ rights as the owner of the PE and other items. [26] It was also pleaded that D1 and D2 had voted in an extraordinary general meeting on 2.9.2021 to dismiss P1 as one of D3’s Directors. [27] P1 and P2 prayed for, among others, the following reliefs in the SoC:

a declaration that the contract for the sale of P2 between D3 and P2 has been terminated by P1;

a declaration that D3 be struck out;

alternatively, P1 to transfer his shares to D1 or D2 and all costs shall be borne by D1 and D2;

all Defendants are immediately prohibited and/ or restrained from accessing P2’s database of customers;

all Defendants are to jointly and severally pay damages in the sum of RM342,771.00 to P1 and/ or P2 immediately; and

interest at the rate of 5% per annum on the amount of damages from the date of filing of the suit until full and final settlement.

D1 and D2 to return and deliver the PE as stated in Annexure A to P1 and/ or P2, at the address given by P1 within seven days from the date of judgment;

D1 and D2 are liable to pay for the costs of delivery of the PE stated in Annexure A;

alternatively, D1 and D2 are to pay damages to P1 and/ or P2 based on the value of the PE;

P1 and P2 are to pay damages to P1/ P2 for detinue/ tampering with the PE for the period from 6.9.2021 until the date that the PE is returned; and

interest at the rate of 5% per annum on the amount of damages from the date of filing of the suit until full and final settlement. [28] The gist of the Defendants’ response to the SoC as pleaded in the Defence is as follows:

it was P1 who informed that P2’s operation would cease completely to enable him to focus in providing services at Traine. P1 offered to give the database of customers and for P2’s employees to work with D3;

among the fundamental terms which were agreed by the parties for the establishment of the JV company are that –

in consideration of D1’s and D2’s financial contribution towards the establishment of D3, they will be given 34% and 33% of the shares in D3, respectively;

(ii) P1 will transfer the PE, which were being used at P2 for the possession and use of D3, and in consideration thereof, 33% of the shares in D3 shall be given to P1; and

(iii) as regards the other equipment apart from the ones which were contributed or given for purposes of D3’s business, D1 and D2 will provide the capital to buy the equipment;

it was agreed that P1 will be paid a monthly salary in the sum of RM20,000.00 by D3, but just after 4 months of Traine being in operation, P1 urged D1 to increase his monthly salary to RM55,000.00. D1 agreed to increase P1’s monthly salary to RM33,000.00 even though P1 was aware of D3’s financial position which was at the infancy of the business. D1 and D2 did not take any salary as Directors of D3 to ensure the timeous payments of P1’s salary;

P1 continued to urge the Defendants for the full increase of his salary and threatened to withdraw from Traine if his demands were not met. As a result, D1 and D2 acceded to P1’s demands and the payment of RM600,000.00 as bonus by D3 to P1, depending entirely on the efforts by all parties to ensure D3’s success until D3 is able to generate profits. No time frame was agreed as to when the RM600,000.00 payment shall be made; and

at 8.00 a.m. on 8.6.2021, P1 entered Traine’s premise and wrongfully removed RM200,000.00 worth of equipment without the Defendants’ knowledge. P1 refused to return the equipment to the Defendants and this is contrary to P1’s obligations as D3’s Director. [29] In the Defendants’ Counterclaim against P1, it was pleaded that P1 had breached the Contract by removing the PE, failing to provide physiotherapy services at Traine since June 2021 and failing to act in the best interests of D3 and thereby caused the following losses to the Defendants: [30] The Defendants counterclaimed against P1 for, among others, the following:

special damages for the losses caused by P1 in the sum of RM740,984.00;

general damages for breach of the JV agreement to be assessed by the Court;

general damages for breach of fiduciary duty and obligation to be assessed by the Court; NO. PARTICULARS TOTAL (RM)

Costs of hiring 3 new physiotherapists to replace P1 21,400.00 2. Loss of income due to loss of Traine business (RM70,000.00 x 4 months) 280,000.00 3. Costs for rental of premises (RM22,396.00 x 4 months) 89,584.00 PE which was wrongfully taken by P1 150,000.00 TOTAL 740,984.00

general damages for the tort of wrongful conversion to be assessed by the Court; and

interest at the rate of 5% per annum on the judgment sum from the date of judgment until full settlement. The Legal Principles & The Memorandum of Appeal [31] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58, the Court of Appeal illuminated on the occasions when appellate interference is warranted in the following passage from the judgment: “[20] … these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin &

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165); and

where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [32] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, I had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].”. [33] In determining all the grounds of appeal, I was guided by the above-mentioned legal principles. [34] Although 16 grounds of appeal were set out in the Memorandum of Appeal, at the hearing of the appeal, the learned counsel for the Defendants informed the Court that the appeal is limited to only four grounds, namely whether the SCJ erred in law and fact in deciding to allow paragraphs 44, 83 and 100 of the SoC and to dismiss the Defendants’ counterclaim against P1. [35] For purposes of the Defendants’ appeal against my decision, it is only necessary for me to elaborate on my findings in respect of the 1st, 3rd and 4th grounds of appeal as these were not decided in the Defendants’ favor. Analysis & Findings of the Court 1st Ground of Appeal: Whether the SCJ erred in law and fact by deciding to allow the following subparagraphs in paragraph 44 of the SoC –

a declaration that the contract for the sale of P2 between D3 and P2 has been terminated by P1;

a declaration that D3 be struck out (dibatalkan);

the Defendants shall jointly and severally pay damages in the sum of RM342,771.00 to P1 and/ or P2 immediately; and

interest on the said amount of damages at the rate of 5% per annum from the date of filing of the suit until full and final settlement [36] The pertinent passage from the GoJ which shows the SCJ’s analysis and findings in relation to the 1st Ground of Appeal is re-produced below for the ease of reference: “[24] Plaintif Pertama di dalam keterangannya tempoh hari telah memaklumkan bahawa pada sekitar bulan Oktober atau November 2020, Defendan Pertama dan Defendan Kedua telah berjumpa Plaintif Pertama untuk menjual Plaintif Kedua kepada syarikat usahama tersebut yang mana telah dipersetujui oleh Plaintif Pertama. Pada 25.11.2020, melalui perbualan aplikasi “WhatsApp”, Plaintif Pertama telah meminta Defendan Pertama untuk menyediakan draf perjanjian mengikut terma-terma yang telah dipersetujui oleh pihak-pihak yakni :-

Syarikat usahasama tersebut akan membayar sebanyak RM600,000.00 kepada Plaintif Kedua pada bulan Disember 2020;

(ii) Pengkalan data kesemua pelanggan Plaintif yang sediada akan dikongsikan kepada syarikat usahasama tersebut;

(iii) Plaintif Pertama akan memberikan perkhidmatan fisioterapi sepenuh masa;

(iv) Kesemua pekerja Plaintif Kedua yang sediada akan diserap ke syarikat usahama tersebut;

Defendan Pertama dan Defendan Kedua akan mendapatkan pelanggan-pelanggan dari hospital-hospital; dan

(vi) Kesemua peralatan yang dimilikki oleh Plaintif Pertama bukanlah merupakan sebahagian dari penjualan tersebut. [25] Defendan Pertama telah berjanji untuk menyediakan draf tersebut di dalam tempoh seminggu, namun demikian, Defendan Pertama telah gagal untuk berbuat demikian. Justeru, di dalam ketiadaan perjanjian tersebut, Mahkamah ini perlu meneliti pembuktian yang ada, dan secara khususnya kepada perbualan melalui aplikasi “WhatsApp” di antara Plaintif Pertama dan Defendan Pertama pada 25.11.2021 di mana pihak-pihak telah berbincang mengenai terma-terma perjanjian jual beli perniagaan tersebut. Di dalam perbualan yang sama, Plaintif Pertama juga telah menyebut mengenai pembayaran sebanyak RM600,000.00 yang masih tidak dibayar kepadanya. Perlu dinyatakan di sini bahawa Defendandefendan tidak pernah menafikan perkara ini. [26] Pada 31.3.2021, melalui perbulan “WhatsApp”, perkara yang sama juga telah dibangkitkan oleh Plaintif Pertama dan penelitian ke atas perbualan tersebut menunjukkan bahawa Defendan Pertama langsung tidak pernah menyangkal apa yang dinyatakan oleh Plaintif Pertama. Sebaliknya, Defendan Pertama mengakui bahawa jumlah RM600,000.00 tersebut adalah terhutang dan perlu dibayar kepada Plaintif Pertama. Di dalam mesej tersebut, Defendan Pertama telah memaklumkan “… I apologize for putting the 600k I owed you on hold (and since Razeen is no longer here I also owe Razeen 100+K and my parents 200+K but theirs I hope can come later, slowly)…”. Fakta ini tidak pernah disangkal mahupun dinafikan oleh Defendan-defendan. Ini jelas menunjukkan bahawa Defendan Pertama mengakui jumlah tersebut merupakan satu hutang dan Defendan Pertama akan membayar kepada Plaintif. Defendan Pertama juga di dalam perbualan tersebut memberikan beberapa cara untuk melunaskan hutang tersebut, di antaranya membuat pinjaman bank atau pun menolak jumlah tersebut dari gajinya. Defendan-defendan kini tidak boleh menukar pendirian mereka dan mengatakan yang sebaliknya. [27] Selanjutnya, di dalam satu lagi perbualan melalui aplikasi “WhatsApp” pada 21.4.2021, Plaintif Pertama telah sekali menyebut mengenai terma-terma perjanjian penjualan tersebut dan juga pembayaran jumlah RM600,000.00 tersebut, namun, Defendan Pertama telah gagal untuk memberikan sebarang respon. Pada 29.4.2021, sekali lagi Plaintif Pertama telah menghantar pesanan melalui “WhatsApp” mengingatkan kepada Defendan Pertama mengenai jumlah tersebut memandangkan perniagaan tersebut telah pun beroperasi selama 6 bulan. Sebagai balasan, Defendan Pertama memaklumkan bahawa dia akan berusaha dengan lebih gigih lagi untuk memastikan Plaintif Pertama akan dibayar balik. [28] Mahkamah ini telah meneliti kesemua pesanan-pesanan tersebut dan tiada di mana-mana perkataan “bonus” tersebut telah digunakan. Sebaliknya, ayat-ayat yang di gunakan adalah “I owe you” dan “I will get your money back”. Ini jelas bermakna jumlah tersebut adalah merupakan hutang yang perlu dibayar oleh Defendan-defendan kepada Plaintif Pertama. Selanjutnya, jika benar apa yang dikatakan oleh Defendan-defendan, yakni bahawa pembayaran jumlah RM600,000.00 adalah merupakan bonus yang hanya akan diberikan apabila keadaan kewangan syarikat tersebut kukuh, maka, adalah merupakan tanggungjawab Defendan-defendan untuk memberikan jawapan yang sewajarnya kepada Plaintif Pertama apabila pertanyaan tersebut dibuat. [29] Defendan-defendan telah gagal sama sekali untuk memberikan sebarang pembuktian selain dari pengataan mulut bahawa jumlah tersebut merupakan bonus yang hanya akan dibayar jika terdapatnya keuntungan. Apabila ini berlaku, maka, dapatan yang perlu dibuat oleh Mahkamah ini adalah pengataan Defendan-defendan perlulah ditolak. Ini merupakan prinsip yang telah diputuskan di dalam kes SOH YEN LING VS MALAYAN BANKING BERHAD [2017] MLJU 84227 yang telah dirujuk dan diterimapakai di dalam kes di hadapan Mahkamah ini di mana telah diputuskan bahawa :- “[19] The third party’s explanation for the non-disbursement of the loan only surfaced at the trial of the action in the form of TPW2’s oral evidence. No documentary evidence was produced by the third party to support their contention that the Loan Solicitor’s letter and its enclosures had been redirected to another department within the third party’s office. In the absence of any corroborative evidence, TPW2’s oral testimony in respect of this issue is only a bare assertion; as such, little or no weight can be attached to TPW2’s evidence (see Guan Teik Sdn Bhd v Haji Mohd Noor Bin Haji Yakob & Ors [2000] 4 MLJ 433 (CA; Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, 234 (FC).” [30] Justeru, apabila Defendan-defendan gagal membuat pembayaran balik jumlah tersebut, maka Defendan-defendan telah memungkiri terma-terma perjanjian tersebut. Apabila ini berlaku, maka, Plaintif-plaintif adalah berhak untuk melepaskan diri mereka daripada perjanjian tersebut. Ini adalah merupakan prinsip yang telah diputuskan di dalam kes CHING YIK DEVELOPMENT SDN BHD VS SETAPAK HEIGHTS DEVELOPMENT SDN BHD [1997] 1 CLJ 287 di mana telah diputuskan oleh Mahkamah Rayuan bahawa :- “Now, in every contract, be it for the sale of land or any other commodity, there are, generally speaking, some terms that are of fundamental importance and others of less or minor importance. The law creates the distinction for the purpose of determining the kind of remedy that is to be made available to an innocent party, i.e., the party who is not guilty of a breach. Where the term that has been flouted is fundamental to the contract, the innocent party is entitled to treat himself as being discharged from further obligations under it.” … [32] Mahkamah ini berpuashati bahawa Plaintif-plaintif telah berjaya untuk membuktikan bahawa jumlah kehilangan pendapatan untuk tempoh 11 bulan di mana perniagaan tersebut telah tidak beroperasi. Berdasarkan Laporan Audit Plaintif Kedua bagai tahun 2019, secara khususnya kepada “Statement of Comprehensive Income” dari 1.7.2019 sehingga 31.12.2019 dan “Statement of Comprehensive Income” dari 1.1.2020 sehingga 31.12.2020, di dapati bahawa purata pendapatan Plaintif Kedua adalah merupakan RM31,161.00. Justeru, jumlah besar pendapatan yang seharusnya di perolehi oleh Plaintif Pertama untuk tempoh 11 bulan tersebut adalah RM342,771.00.”. [37] The Appellants put forth the following points to support the contention that the SCJ had misdirected herself and failed to appreciate or consider all the evidence and thereby fell into error in arriving at her findings and conclusions:

there is no written agreement between the parties to purchase the business of P2. The evidence between the parties was mostly based on the conversation between P1 and D1 via WA. Hence, it is impossible to declare that the Contract is terminated;

there is no agreement between P2 and D3. The discussion was in respect of the agreement between the three shareholders in D3, and not the agreement to purchase P2. P1 admitted that there was never a request for an agreement to be entered into between P2 and D3;

there is no change to P2’s shareholding at all material times and there was no intention to sell P2 as the business had ceased for a while. P2 was meant to be closed due to financial constraints. Payment of RM600,000.00, if at all, was not for the purchase of P2, but rather for P1, as was admitted by P1;

the amount of RM342,771.00 was not proven. Since its incorporation in 2018 until 30.6.2019, P2 recorded a loss of RM454,800.00. From 1.7.2019 to 31.12.2019, P2 recorded further losses of RM203,258.61. The Financial Statements indicate P2’s inability to sustain its business since its incorporation; and

the SCJ did not provide any justification as to why and how D3 can be terminated in the circumstances of this case. There is no legal provision that provides for a “striking out” of a company. [38] I will deal firstly with the submission as stated in subparagraph 37 (e) above. The learned counsel for the Plaintiffs submitted that the Sessions Court has inherent jurisdiction to make any such orders which it deems fit, just and necessary and that there is provision in the CA 2016 for a company to be “struck out” but this was not pleaded nor submitted in the court below. [39] During my deliberation of this appeal, I was minded to find that the SCJ’s Order in allowing the relief in subparagraph 44(b) of the SoC was in error. However, I had inadvertently omitted to pronounce this finding on the date of decision. Even though the SCJ was plainly wrong in this respect, it has no bearing on the decision which she has made in relation to subparagraphs 44(a), (e) and (f) of the SoC as these claims are factually and legally independent from the claim for a declaration in subparagraph 44(b) of the SoC. [40] Moving on to the Defendants’ arguments on the other aspects of the SCJ’s decision, in my considered view, the evidence at the trial supports the SCJ’s findings in that –

based on the SoC and the Agreed Facts dated 28.12.2022 and signed by the solicitors representing all the parties, the Plaintiffs’ case was never premised on any written agreement. The first issue in the Issues To Be Tried (‘ITBT’) which was prepared by the Plaintiffs is whether there is a contract for the sale of business between P2 and D3 as pleaded in paragraph 34 of the SoC while the first issue in the ITBT which was prepared by the Defendants is whether there is a contract for the sale of business between P1 and D3 as pleaded in the same paragraph of the SoC. To recap, paragraph 34 of the SoC states as follows: “Shah and Razeen, in capacity as majority shareholders and directors of Syarikat Usaha Sama, had verbally offered RM600,000.00 to Ko Kangmin to purchase

around October or November 2020, D1 and D2 had approached P1 to sell P2’s business to D3. P1 accepted the offer and requested D1 to draft a detailed contract for the sale but subsequently, no written contract was ever concluded. Nevertheless, based on the WA messages between P1 and D1, there was an oral contract and the terms of the Contract are as set out in paragraph 17 above; Defendants is P2’s business, and not the company. Therefore, there was no necessity to change P2’s shareholding; supported by D1’s statement that P1’s departure led to the closure of D3’s business; D1 never denied and proffered an explanation at the earliest opportunity that the said sum is to be paid to P2 as a bonus. The word “bonus” or “reward” was never used or mentioned whenever P1 requested for the payment of RM600,000.00. No documentary evidence was produced to prove that the amount of RM600,000.00 was meant to be a “bonus” or “reward”. Instead, D1 had admitted the debt of RM600,000.00 and had promised to make payment by offering or wanting to obtain a loan. It was even suggested that the debt be paid by increasing P1’s salary;

by failing to pay the amount of RM600,000.00, D3 has breached the term of the Contract and P1 elected to terminate the oral contract. As a result of the breach, P1 no longer has an obligation to provide physiotherapy services at D3. Hence, the Plaintiffs are entitled to claim for the loss of revenue that could have been earned if P2’s business was not sold to D3. The loss of revenue suffered is a reliance loss as if P1 continued to operate the business of P2;

based on P2’s Audit Report 2019, the Statement of Comprehensive Income from 1.7.2019 to 31.12.2019 and the Statement Comprehensive Income from 1.1.2020 to 31.12.2020, the average monthly revenue of P2 is RM31,161.00. The Plaintiffs had computed the sum of RM342,771.00 in their written submission before the SCJ as re-produced below: Loss of Revenue = RM432,411.00 (March 2019 to June 2019) + RM193,406.00 (July 2019 to December 2019) + RM433,661.00 (January 2020 to December 2020) Divided by 34 months = RM31,161.00 x 11 months (December 2020 to October 2021) = RM342,771.00 [41] In the premises, I find that the Defendants have not established the 1st Ground of Appeal. 3rd Ground of Appeal: Whether the SCJ erred in law and fact by deciding to allow the following subparagraphs in paragraph 100 of the SoC –

D1 and D2 to return and deliver the PE as stated in Annexure A to P1 and/ or P2, at the address given by P1, within seven days from the date of judgment;

D1 and D2 are liable to pay for the costs of delivery of the PE stated in Annexure A;

damages in the sum of RM5,000.00 for detinue; and

interest at the rate of 5% per annum on the sum as stated in subparagraph (b) from the date of filing of the suit until full settlement [42] This ground of appeal relates to the Plaintiffs’ claim in detinue. In explaining this cause of action, the Plaintiffs relied on the judgment of the Federal Court in Perbadanan Kemajuan Negeri Selangor v Teo Kai Huat Building Contractor [1982] CLJ (REP) 257 (Federal Court) which held as follows: “An action lies for the specific recovery of personal chattels wrongfully detained from the person entitled to the possession of them, and also for damages occasioned by the wrongful detainer (3 B1. Com. 151). The technical name of this action is “Detinue”. The gist of the action is the wrongful detention of goods, and, in general, therefore, it is an action for a wrong independent of contract, and is founded on tort (see Bryant v. Herbert [1878] 3 CPD 389); there must be 'some definite act or deliberate withholding as a necessary preliminary to the arising of this cause of action' (Clayton v. Le Roy [1911] 2 KB 1031 at 1048). And at p. 359 speaking of right of action it is stated that: To support the action, the plaintiff must have the right to the immediate possession of the goods at the time of commencing the action, arising out of an absolute or a special property; The injurious act being the wrongful detention of the goods, and not the original taking or obtaining of the possession, it is immaterial whether they were obtained by the defendant by lawful means, as by a bailment or finding, or by a wrongful act, as by a trespass or conversion. The usual evidence of the detention is that the defendant, having the possession or control over the goods, does not deliver them to the plaintiff when demanded (Jones v. Dowle [1841] 9 M & W 19). Where there was neither demand nor refusal, no action lay (Clayton v. Le Roy, ante).”. [43] The findings of the SCJ are in paragraphs 34 - 40 of the GoJ. [44] The Defendants referred to the case of Si Khiong Industries Sdn Bhd v Liau Shu Chau [1993] MLJU 390 and s 110 of the Evidence Act 1950 [Act 56] in submitting that, to prove wrongful detention of property, the Plaintiffs must first prove ownership of the same. It was argued that the Plaintiffs have failed to discharge the burden of proof as –

the evidence produced by the Plaintiffs was the receipts for the purchase of the PE before the parties agreed to enter into the JV and therefore, is not relevant in explaining how the PE came to be in the possession of D3 or that the Plaintiffs retained ownership of the same; and

there was other evidence (such as P2’s closure due to financial constraints; there was expectation at the commencement of D3’s business that P1 will bring the PE for the purpose of carrying out D3’s business; P1 did not pay anything for his 33% shares in D3 and P1 voluntarily brought the PE to D3 in return for the said shares; no payment or rent was made by Traine or D3 for the PE which was used for D3’s business; and all income obtained from the use of the PE was channeled to D3’s account) which proves, on a balance of probabilities, that the PE belongs to D3 and was a contribution to P1’s shareholding in D3. No evidence was led to show that the PE has to be returned to the Plaintiffs. At all material times, P1 remained as a shareholder of D3 and D3’s business was still ongoing even after P1 abandoned his position on 8.6.2021. [45] In sum, the Defendants contended that there was an appealable error as there was no wrongful detention of the PE which was placed for the purposes of D3’s business and remained at D3. [46] I have scrutinised the Record of Appeal and considered the submissions of the parties and in my view, the SCJ was not plainly wrong in her decision in relation to the Plaintiffs’ claim in detinue. The Plaintiffs have proven, on a balance of probabilities, all the requisite elements to succeed in their claim of detinue as –

P2 has always retained the legal ownership of the PE and thus, P2 has the right to immediate possession of the PE;

D1 and D2 desperately needed P1 to provide physiotherapy services at Traine. In this regard, D1 and D2 were prepared to give 33% of the shares in D3 to P1 in exchange for P1’s services at Traine, initially on an intermittent basis while P1 continues P2’s business prior to the Contract, and later on a full-time basis. The SCJ found that the value of the said shares is only RM33.00

D1 gave evidence that the PE is in his possession. In the Plaintiffs’ solicitors’ letter dated 29.9.2021, a demand was made for the PE to be returned and delivered to a specific location as stated in the letter of demand, however, up until the trial, the Defendants have refused to do so; and

the Plaintiffs are entitled to damages for the loss of use of the PE for the period from the wrongful refusal to return the PE i.e.

29.9.2021 until the date of judgment and damages in the sum of RM5,000.00 awarded by the SCJ is reasonable and not excessive. [47] Therefore, there is no merit in the 3rd Ground of Appeal. 4th Ground of Appeal: Whether the SCJ erred in law and fact by deciding that the Defendants had failed, on a balance of probabilities, to prove their counterclaim against P1 [48] The SCJ dealt with the Defendants’ counterclaim in paragraphs 47 - 67 of the GoJ. The SCJ identified three sub-issues and the crux of her findings on these sub-issues are as follows:

Sub-Issue 1 “[49] Berkenaan sub isu ini, tiada sebarang pembuktian yang telah dikemukakan samada melalui keterangan dokumentar mahupun keterangan lisan oleh Defendan-defendan untuk menunjukkan bahawa Plaintif Pertama telah gagal menghadiri tugas dan memberikan perkhidmatan fisioterapi. Selain dari memplidkan perkara ini di dalam Pembelaan dan Tuntutan Balas mereka, semasa Defendan Pertama memberikan keterangan, sub isu ini langsung tidak disebut. Di dalam keadaan ini, Mahkamah tidak mempunyai pilihan lain selain dari menolak pengataan Defendan-defendan ini.”

Sub-Issue 2 “[50] Berkenaan sub isu ini, sekali lagi, Defendan-defendan telah gagal untuk mengemukakan sebarang pembuktian yang konklusif untuk menunjukkan bahawa Plaintif Pertama telah dengan salah mengalihkan peralatan-peralatan fisioterapi tersebut dari premis perniagaan. Di dalam kes di hadapan Mahkamah ini, Defendan-defendan telah gagal untuk membuktikan bahawa pihak-pihak telah bersetuju bahawa peralatan-peralatan fisioterapi tersebut telah diberikan kepada perniagaan syarikat usahasama tersebut sebagai balasan kepada pemberian saham-saham tersebut. Justeru, perbuatan Plaintif Pertama mengambil peralatanperalatan adalah tidak salah kerana ianya merupakan milik Plaintif Pertama. … [52] Defendan-defendan telah cuba untuk bersandar kepada satu perbualan melalui aplikasi “WhatsApp” pada 26.11.2019 di antara Defendan Pertama dengan Plaintif Pertama. Perbualan tersebut adalah seperti yang berikut :- Plaintif Pertama : “I’m going to give my equipment as a gift where I need it… …That’s why I want to finish the current stable operation of Him Sports and join you”. [53] Menurut keterangan Defendan Pertama perbualan tersebut adalah merupakan pembuktian bahawa Plaintif Pertama telah menyerahkan peralatanperalatan fisioterapi tersebut kepada Defendan-defendan. Penelitian awal ke atas perbualan tersebut memang akan memberikan gambaran bahawa Plaintif Pertama mempunyai niat untuk menghadiahkan peralatan-peralatan fisioterapi tersebut kepada Defendan-defendan. Namun demikian, Defendan-defendan telah dengan sengaja tidak mengemukakan salinan tangkapan perbualan yang penuh. Mahkamah ini telah meneliti perbualan bertarikh 26.11.2019 tersebut dengan penuh dan Mahkamah mendapati bahawa apa yang dikatakan oleh Defendandefendan tidak benar sama sekali. … [55] Berdasarkan perbualan tersebut, adalah jelas dan nyata bahawa hanya Plaintif Pertama hanya merujuk kepada mesin yang berwarna kuning sahaja dan bukannya peralatan-peralatan fisioterapi yang lain. Perkara ini telah pun dipersetujui oleh Defendan Pertama di dalam keterangannya semasa disoal balas. Mahkamah ini berpendapat bahawa Plaintif Pertama hanya berniat untuk memberikan mesin berwarna kuning tersebut sahaja dan bukannya peralatanperalatan fisioterapi yang lain. … [57] Defendan-defendan juga cuba bersandarkan kepada 2 laporan polis yang telah dibuat oleh Defendan Pertama, yakni pada 17.06.2021 dan 12.07.2021 (selepas ini dirujuk sebagai “laporan-laporan tersebut”). Di dalam laporan-laporan tersebut, Defendan Pertama telah mendakwa bahawa peralatan-peralatan fisioterapi milik syarikat usahasama tersebut telah diambil oleh Plaintif Pertama secara salah. Apakah hasil laporan-laporan tersebut tidak didedahkan di Mahkamah, yakni samada ada tindakan lanjut seperti siasatan atau pun pertuduhan di buat ke atas Plaintif Pertama ekoran dari siasatan yang dibuat. Defendan-defendan juga telah gagal untuk memanggil pegawai penyiasat yang berkenaan bagi mengesahkan status laporan-laporan tersebut. Mahkamah ini berpendapat bahawa pegawai penyiasat adalah merupakan saksi yang penting dan seharunya dipanggil kerana hanya dia yang boleh mengesahkan apakah betul peralatan-peralatan fisioterapi tersebut dialihkan secara salah atau sebaliknya. Jika benar apa yang didakwa oleh Defendan Pertama, semestinya akan adanya pertuduhan di buat terhadap Plaintif Pertama. Jika benar apa yang didakwa oleh Defendan Pertama di dalam laporan-laporan tersebut maka akan terbuktilah bahawa Plaintif Pertama bukanlah pemilik yang sah peralatan-peralatan fisioterapi tersebut. Kegagalan untuk memanggil pegawai penyiasat ini memerlukan Mahkamah membuat satu inferens di bawah Seksyen 114 (g) Akta Keterangan 1950.. [58] Selanjutnya, jika benar apa yang didakwa oleh Defendan-defendan, pada 14.6.2021 melalui perbualan “WhatsApp” beberapa hari sebelum laporan pertama dibuat, Plaintif Pertama telah memaklumkan sebab-sebab peralatanperalatan fisioterapi tersebut perlu diambil kepada Defendan Pertama, yakni untuk digunakan oleh klien bernama Tengku Fahad. Perkara ini langsung tidak dinyatakan oleh Defendan Pertama di dalam laporan-laporan tersebut. Jika fakta ini didedahkan oleh Defendan Pertama, maka ianya akan menunjukkan bahawa sebenarnya Defendan Pertama mengetahui dari awal bahawa peralatan-peralatan tersebut telah diambil oleh Plaintif Pertama dan bukannya seperti yang didakwa olehnya di dalam laporan-laporan tersebut. …”.

Sub-Issue 3 “[61] Defendan-defendan memplidkan bahawa Plaintif Pertama telah gagal menjalankan kewajipan fidusiarinya untuk memastikan bahawa perniagaan usahasama tersebut tidak mengalami kerugian.

the counterclaim was not just for breach of the Contract but also for P1’s breach of his fiduciary and statutory duties as D3’s Director and shareholder to act for the best interest of D3 whereby P1 had removed the PE from Traine and caused losses to D3. The learned counsel for the Defendants cited s 213 of the CA 2016 and the case of Chin Foh Berhad & Anor v Kwan Yun Hong @ Kuan Onn Hing & Ors [2012] 9 MLJ 854 to support his submission that any action or use of D3’s equipment or property must be for the purpose of D3’s interest and not for P1’s personal needs;

the evidence with regards to P1’s breach of the agreement between the shareholders and his fiduciary and statutory duties were extensively addressed by D1 during examination in chief and the evidence was not challenged during cross-examination by the Plaintiffs’ counsel. The evidence is where P1 admitted that he decided to leave and abandon D3 on 8.6.2021; he took out the Said Equipment from Traine in June 2021; and the Said Equipment was used to provide services for the benefit of himself and P2 and against the best interest of D3; and

the evidence adduced by the Defendants on the losses suffered due to P1’s breaches were not challenged during cross-examination. [50] However, having reviewed the Record of Appeal which contains the oral and documentary evidence adduced at the trial and the written submissions of the parties for the SCJ’s consideration, I was not persuaded that the SCJ had erred in any way in her findings and conclusions. [51] Based on the evidence, the Contract was concluded in October or November 2020 and P1 ceased the business operation of P2 in order to fulfil his obligations pursuant to the Contract. Subsequently, D3 breached the Contract by failing to pay RM600,000.00 to P2. In these circumstances, P1 no longer has an obligation to continue to provide physiotherapy services to D3. Premised on that, the purported losses suffered by D3 as a result of P1 leaving D3 was triggered by the Defendants own actions in not honoring the promise to pay the sum of RM600,000.00 to P2. [52] The allegation that P1 had stolen or removed the PE has been addressed under the 3rd Ground of Appeal. This Court is in agreement with the Plaintiffs’ submission that the Plaintiffs have always retained the legal ownership of the PE. [53] Further, the Defendants were aware of the reason as to why P1 took the Said Equipment from Traine, namely to be used for a client. Despite knowing the purpose, D1 lodged the police reports and made it appear as though P1 had stolen the Said Equipment. There was a mala fide intention to pressure P1 to return to D3 as D1 was well aware that he has the option of retracting the police reports if P1 succumbs to his tactics. [54] Significantly, the Defendants failed to adduce any documentary evidence to account for the loss of revenue purportedly suffered by D3. Neither did the Defendants provide any particulars of the physiotherapists who were allegedly hired to replace P1. Basically, the Defendants failed to prove their counterclaim for the amount as pleaded. [55] The SCJ cannot be said to be plainly wrong in concluding that the counterclaim is an afterthought on view of the fact that the Defendants never issued any letter of demand to the Plaintiffs to claim for the alleged losses suffered by the Defendants. The Defendants had filed the counterclaim only after being served with the Writ of Summons. [56] In the final analysis, there is similarly no merit in the 4th Ground of Appeal. Conclusion [57] Based on the foregoing reasons, the appeal based on the 1st, 3rd and 4th grounds of appeal was dismissed. [58] In view of the final outcome of the appeal, the Respondent’s counsel proposed that the parties bear their own costs and this was agreed by the Appellant’s counsel. Hence, the Court made no order as to costs. Dated: 30 May 2025 (ALIZA SULAIMAN) Judge High Court in Malaya (NCvC2) Kuala Lumpur Counsels/ Solicitors: For the Appellants: Shahir Ab Razak Messrs. Shahir Khubayb & Co. Advocates & Solicitors E-2-13, Plaza Damas Jalan Sri Hartamas 1 50480 Kuala Lumpur For the Respondents: Roshan Selvaratnam (Diong Qian with him) Messrs. Roshan Advocates & Solicitors Suite 7-01, Block B 7th Floor, Kelana Square 17, Jalan SS7/26