1. ) New Golden Sea Shipping Pte Ltd v 1. ) Mahathir Bin Mohd Harun (BL-B52NCC-26-10/2022)

The present case concerns a contractual shipping dispute arising from an online booking and carriage system, marked by overlapping corporate actors, contested claims of agency, and abandoned cargoes in a distant port. The governing Bills of Lading frame the central issues, pertaining to shipments between Port Klang, Malaysia, and Hai Phong Port, Vietnam, by a Singapore-incorporated carrier.

Set within this intricate canvas, the Plaintiffs advance claims against the Defendants for demurrage, detention and contractual charges predicated on the Defendants’ operational conduct and contractual obligations.

Having evaluated the totality of the evidence before me, I find on a balance of probabilities that the Plaintiffs have established their claim against the Second and Third Defendants.

I, therefore, allow the Plaintiffs’ claim against them with costs.

My reasons for so finding are set out in the analysis that follows. S/N g9zUvSXk90qrcH4S1xnrlA

The Plaintiffs’ claim against the Defendants is for, inter alia, the following reliefs:

Against the First Defendant:

the sum of RM556,706.16 being the principal sum payable under Invoices No. M7120743010, M7120736930 and M7120739970;

Contractual Interest on the sum of RM556,706.16 at the daily rate of 0.1% fourteen (14) days from 28.10.2021 until the date of full and final payment of RM556,706.16;

alternatively, to prayer (b), judgment interest from 28.10.2021 until full and final settlement by the Defendant pursuant to Section 11 of the Civil Law Act 1956 and Order 42 rule 12 of the Rules of Court 2012 at the rate of 5% per annum on the sum of RM556,706.16.

(ii) Alternatively, against the Second and Third Defendants:

a declaration that the Second and Third Defendants have untruly represented themselves to be the authorized agent of the First Defendant to the Plaintiffs;

a declaration that the Second and Third Defendants have misrepresented themselves as the agents of the First Defendant and/or have committed fraud by making S/N g9zUvSXk90qrcH4S1xnrlA the Bookings on behalf of the First Defendant with the

alternatively, a declaration that the Second and Third Defendants have exceeded the authority given by the First Defendant in making the Bookings with the

a declaration that the Second and Third Defendants are jointly and severally liable to the Plaintiffs for the damages incurred under the Bill of Ladings issued following the Bookings made by the Second and Third

an order that the Second and Third Defendants shall jointly and severally pay the Plaintiffs the sum of RM556,706.16 being the principal sum payable under Invoices No. M7120743010,

an order that the Second and Third Defendants shall jointly and severally pay the Plaintiffs the Contractual Interest in the sum of RM556,706.16 at the daily rate of 0.1% fourteen (14) days from 28.10.2021 until the date of full and final payment of RM556,706.16;

alternatively to prayer (i), judgment interest from 28.10.2021 until full and final settlement by the Second and Third Defendants pursuant to Section 11 of the Civil S/N g9zUvSXk90qrcH4S1xnrlA Law Act 1956 and Order 42 rule 12 of the Rules of Court 2012 at the rate of 5% per annum on the sum of RM556,706.16;

damages to be assessed;

costs; and

such further or other relief as this Honourable Court may deems fit. PARTIES

New Golden Sea Shipping Pte Ltd (the First Plaintiff) is a company incorporated in Singapore and is in the business of providing international maritime container transport services and related businesses.

COSCO Shipping Lines (Malaysia) Sdn. Bhd. (the Second Plaintiff) is a company incorporated in Malaysia and acts as the local agent of the First Plaintiff within Malaysia.

Mahathir Bin Mohd Harun (the First Defendant) is the sole proprietor of a business involved in the import and export of honey, metal products, and sinks.

Yip Fong Holding Sdn. Bhd. (the Second Defendant) is a company incorporated in Malaysia and is in the business of operating as shipping and forwarding agents, and the provision of related services. S/N g9zUvSXk90qrcH4S1xnrlA

Tong Zhou Logistics Sdn. Bhd. (the Third Defendant) is a company incorporated in Malaysia and is in the business of operating as shipping and forwarding agents, and the provision of related services.

In support of their claim, the Plaintiffs adduced evidence from the following witnesses:

Lee Kam Fatt - Assistant General Manager of the Customer

(ii) Tan Huei Ling, Deputy General Manager of the Documentation Department of the Second Plaintiff (PW2)

(iii) Mok Ru-See - Assistant Section Manager of the Second Plaintiff (PW3)

(iv) Subhashini A/P Sreetharan - Deputy Section Manager in the Demurrage and Detention Section of the Equipment Control Department of the Second Plaintiff (PW4)

Tan Jia Xin (Iris) - the Operational Personnel of the Second and Third Defendants (PW5) testified in her capacity as a subpoenaed witness for the Plaintiffs.

The First Defendant testified in court in his capacity as the sole proprietor of Delmas Maju Industri (DW1).

The Second and Third Defendants did not adduce any evidence. S/N g9zUvSXk90qrcH4S1xnrlA

On 3.10.2022, the Plaintiffs commenced this Suit against the First Defendant. And by Order of Court dated 12.7.2024, the Second and Third Defendants were joined to the proceedings.

The salient facts, as gathered from the pleadings, the agreed facts, the documentary and oral evidence, as well as the written submissions before me, are as follows.

On 13.3.2018, 14.3.2018, 17.4.2018, and 23.4.2018, the First Defendant through the Second and Third Defendants, submitted four online Booking Requests to the Second Plaintiff for the shipment of frozen seafood at -18°C with closed vents in 4 X 40’RQ Hi Cube Refrigerated Container (the cargoes) from Port Klang, Malaysia, to Hai Phong Port, Vietnam, utilising the Plaintiffs’ containers and vessels (the Bookings).

Upon acceptance of the Bookings, the Second Plaintiff issued four Booking Acknowledgements to the Second and Third Defendants as the respective booking parties (the Booking Acknowledgements).

In the Booking Requests, the Second and Third Defendants provided the shipment particulars to the Second Plaintiff:

On 13.3.2018, the Booking was made under Bill of Lading No. COAU7120742820 and Container No. CC4466247104, recording the Third Defendant as the Booking Party, the S/N g9zUvSXk90qrcH4S1xnrlA Second Defendant as the Forwarder, and the First Defendant as the Shipper.

(ii) On 14.3.2018, the Booking was made under Bill of Lading No. COAU7120743010 and Container No. CC5569838104, recording the Third Defendant as the Booking Party, the Second Defendant as the Forwarder, and the First Defendant as the Shipper.

(iii) On 17.4.2018, the Booking was made under Bill of Lading No. COAU7120736930 and Container No. CC4568928826, recording the Second Defendant as both the Booking Party and the Forwarder, and the First Defendant as the Shipper.

(iv) On 23.4.2018, the Booking was made under Bill of Lading No. COAU7120739970 and Container No. CC6123397619, recording the Second Defendant as the Booking Party, the Second Defendant as the Forwarder, and the First Defendant as the Shipper.

Initially, all four Bookings named the Second Defendant as the Shipper. Subsequently, the Second Defendant requested via email that the Shipper’s details be amended to reflect the First Defendant.

In the finalised booking documentation, the Second and Third Defendants were each named as the Booking Party in two Bookings. The Second Defendant was identified as the Forwarder, and the First Defendant as the Shipper for all four Bookings. S/N g9zUvSXk90qrcH4S1xnrlA

Following the Booking Acknowledgements, the Third Defendant, acting on behalf of the First Defendant and the Second Defendant as the Forwarding Agent, submitted four shipping instructions (the Shipping Instructions) to the Second Plaintiff.

The Shipping Instructions were submitted through the Plaintiffs’ online platform under the username ‘pangas’ (pangas28), which the Second Plaintiff’s internal records identify as belonging to the Third Defendant (hereinafter referred to as the Third Defendant’s digital user profile under the name ‘Pangas28’).

Based on the information furnished in the Shipping Instructions, the Documentation Department of the Second Plaintiff prepared and issued four Bills of Lading for the shipment from Port Klang Malaysia to Hai Phong Port Vietnam:

Bill of Lading No.: COAU7120742820

(ii) Bill of Lading No.: COAU7120743010

(iii) Bill of Lading No.: COAU7120736930

(iv) Bill of Lading No.: COAU7120739970 Unless it becomes necessary to distinguish them, I shall refer to them collectively as “the Bills of Lading.”

The Second Defendant subsequently made payment of the freight charges for the Bills of Lading to the Second Plaintiff on behalf of the First Defendant. S/N g9zUvSXk90qrcH4S1xnrlA

PW5, the operational personnel of the Second and Third Defendants liaised directly with the Second Plaintiff to arrange for a telex release of the Bills of Lading. She arranged personnel from the Second Defendant and/or the Third Defendant, under PW5’s instruction, attended the Second Plaintiff’s office to endorse the Bills of Lading with the First Defendant’s company stamp, thereby authorising the telex release.

Subsequently, the Bills of Lading were duly executed whereby the respective cargoes were duly shipped and delivered by the First Plaintiff in accordance with the terms and conditions of the Bills of Lading.

However, the respective cargoes were not collected by Hai Phong Trading Import Export and Services Joint Stock Company (Customs Bonded Warehouse) (the First Consignee) upon arrival.

In early May of 2018, the Second Plaintiff contacted PW5 via the email address (jiaxiinn17299@hotmail.com) to notify that the Delivery Orders and the Containers were not collected by the First Consignee.

On 18.5.2018, PW5 submitted several amendment notices to the Second Plaintiff, instructing the Second Plaintiff to amend the details of the consignee to Hoang Cau Trading Joint Stock Company (the S/N g9zUvSXk90qrcH4S1xnrlA Request to Change Consignee 1). The Request to Change Consignee 1 was supported by several letters of indemnity issued by the First Defendant to the Second Plaintiff. These letters of indemnity were duly signed by PW5.

However, the Second Plaintiff was later informed by the Second Defendant that the Request to Change Consignee 1 fell through.

On 26.6.2018, PW5 once again submitted several amendment notices to the Second Plaintiff, instructing the Second Plaintiff to amend the details of consigness to Gia Hung Investment Trading (the Request to Change Consignee 2). The processing fees to amend the details of the consignee were duly paid by the Second Defendant.

The Request to Change Consignee 2 was also supported by several letters of indemnity issued by the First Defendant to the Second Plaintiff. These letters of indemnity were also duly signed by PW5.

PW5 confirmed that the name ‘Iris’ appearing in the documentation referred to her, although she denied that the signatures appearing on the Letters of Indemnity were hers.

Nonetheless, PW5 admitted sending the emails dated 16.5.2018 and 26.6.2018, enclosing the Amendment Notices and Letters of Indemnity to the Second Plaintiff.

Following the Request to Change Consignee 2, the name of the Consignee was amended to Gia Hung Investment Trading International JSC (the Second Consignee). S/N g9zUvSXk90qrcH4S1xnrlA

Despite the amendment of the consignee’s name to the Second Consignee, the cargoes remained uncollected at Hai Phong Port, Vietnam.

The unclaimed cargoes were eventually disposed of, resulting in the Plaintiffs incurring demurrage and detention charges (the DND Charges) under each of the Bills of Lading, totalling RM556,706.16.

On 28.10.2021, the Second Plaintiff issued four invoices for the DND Charges to the First Defendant as the Shipper, and to the Second and Third Defendants as the respective Booking Parties: namely, M7120742820, M7120743010, M7120736930 and M7120739970. Unless it becomes necessary to distinguish them, I shall refer to them collectively as “the Invoices”

Each invoice contained a term stipulating that the Second Plaintiff would accrue interest at a rate of 0.1% per day should payment not be received within 14 calendar days of the invoices date (the Contractual Interest).

Despite the issuance of the Invoices on 28.10.2021, the Defendants have failed, refused, and/or neglected to settle the outstanding DND Charges, which amounted to RM556,706.16. S/N g9zUvSXk90qrcH4S1xnrlA

On 22.12.2021, the Plaintiffs through their Solicitors Messrs. T S Oon & Partners issued a Letter of Demand to the First Defendant as the Shipper named in the Bills of Lading, demanding payment of the outstanding DND Charges and Contractual Interest. BURDEN

Before addressing the competing arguments, I find it convenient to set out below the well-established principles governing the burden of proof, to which I shall immediately turn. Statutory provisions

Elementary as it is, it is worth noting at the outset the burden and standard of proof, which is the legal burden on the balance of probabilities, as prescribed by sections 101, 102 and 103 of the Evidence Act 1950 (the Act). S. 101 of the Act reads: “101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” S/N g9zUvSXk90qrcH4S1xnrlA

S. 102 of the Act reads: “102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

And s. 103 of the Act reads: “103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

Guidelines have been developed over the years in precedents concerning the centrally relevant burden of proof. The Court of Appeal in Abu Bakar Pangis & Ors v. Tung Cheong Sawmill Sdn Bhd & Ors And Another Appeal [2014] 5 MLJ 384; [2015] 5 CLJ 753 explained the concept of proving a civil claim on the balance of probability. In delivering judgment of the Court of Appeal, Abdul Wahab Patail JCA observed: “[22] Objectively speaking, the nature of proof of a claim is not about believing one party or witness and not the other. Otherwise, justice in civil litigation falls prey to the uncertainty of who and what is believed or not by whoever presides in the court. It is to avoid this and to put the matter of proof upon an objective basis that the two fundamental concepts of the burden of proof and proof upon a balance of probabilities were developed. … S/N g9zUvSXk90qrcH4S1xnrlA [24] To appreciate how burden of proof functions, it is necessary to bear in mind the process of determination of facts in civil litigation:

A plaintiff relying upon a cause of action carries the burden of proving the facts in support of it. He does so by setting out such facts in his pleadings, thereby giving the other party notice and an opportunity to check and verify that those facts are true and correctly stated, and the other party may, to enable him to do so, require further and better particulars.

In respect of those facts in support:

if not disputed by the defence, it is deemed to have been accepted and it is not necessary to prove it;

(ii) if a fact in support is disputed and the plaintiff had disclosed the nature of the evidence relied upon, then if conceded by the defence it is deemed to have been proved, and no further proof is necessary;

(iii) if a fact in support is disputed and the plaintiff had disclosed the nature of the evidence relied upon, and it remained disputed by the defence, but if after discovery and or interrogatory it was conceded by the defence, it is deemed to have been proved, and no further proof is necessary.

If not conceded, a disputed fact in support proceeds to trial stage where:

if as to a disputed fact no evidence is produced by the plaintiff in the form of oral testimony of a witness or documentary evidence in support thereof, then it is held to have been not proved; S/N g9zUvSXk90qrcH4S1xnrlA

(ii) if as to the disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence, and such evidence is not challenged in cross-examination, then it is held to have been proved;

(iii) if as to the disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence produced, and such evidence is not demolished during cross-examination, and no evidence to support the cross-examination is adduced, or if adduced failed to support the basis of cross-examination, then the evidence is held to remain unshaken and the disputed fact have been proved;

(iv) if as to the disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence, and cross-examination succeeds to demolish that evidence, then the disputed fact is held to be not proved;

(iv) if as to a disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence, and despite cross-examination the version is maintained, it is for the court to assess what weight is to be given to such evidence in proof of the disputed fact.” (See also: Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151; [1971] 2 MLJ 175; Krishna Murthey & Anor. v. Law Lye Chua [1992] 2 CLJ Rep 668; Jafri Elias v. Khor Tang Seah [1992] 2 CLJ Rep 601; and MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [2000] 5 CLJ 163; [2000] 1 MLJ 354) S/N g9zUvSXk90qrcH4S1xnrlA ISSUES FOR DETERMINATION

I acknowledge that the legal and factual currents of this case ran deep, but the submissions by counsel on all sides are remarkable in their precision and depth, serve as a reliable compass in my deliberation. The following issues arise for determination:

Whether the impugned documents in Part C were admissible in light of the procedural history and Section 90A of the

(ii) Whether a contract of carriage was entered into between the First Plaintiff and the First Defendant as evidenced by the Bills of Lading

(iii) Whether the First Defendant has knowledge and is bound by the terms of the Bills of Lading

(iv) Whether the First Defendant is the Shipper, and if the answer is positive, being the Shipper named in the Bills of Lading, is responsible for paying the DND Charges incurred pursuant to the terms of the Bills of Lading

Whether the Second and Third Defendants acted as agents of the First Defendant in all the dealings with the Plaintiffs

(vi) Whether the Second and Third Defendants had the authority to submit the Bookings to the Second Plaintiff on behalf of the First Defendant S/N g9zUvSXk90qrcH4S1xnrlA

(vii) Whether the Second and Third Defendants are personally liable to the Plaintiffs for the DND Charges incurred pursuant to the Bills of Lading

(viii) Whether the Plaintiffs are entitled to claim for the contractual interest at the daily rate of 0.1% on the sum of RM556,706.16 after fourteen (14) calendar days from the date of the Invoices, i.e. 28.10.2021, from the Second and Third Defendants

(ix) Whether the Second and Third Defendants are jointly and severally liable to the Plaintiffs

Whether the Second and Third Defendants’ move to raise affirmative cases and new factual assertions constitutes a procedural departure from the pleaded case

To these issues, I shall now turn. S/N g9zUvSXk90qrcH4S1xnrlA FIRST ISSUE: WHETHER THE IMPUGNED DOCUMENTS IN PART C WERE ADMISSIBLE IN LIGHT OF THE PROCEDURAL HISTORY AND SECTION 90A OF THE EVIDENCE ACT 1950 Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that the impugned documents in Part C were admitted by the consensus of all parties when they were reclassified into Part B during the proceedings. In the alternative, he contended that they fell within the admissibility framework of Section 90A of the Evidence Act 1950. He further added that no adverse inference could be drawn from the Plaintiffs’ election not to call the Company Secretary of the Second and Third Defendants, notwithstanding that she had been subpoenaed and named in the Plaintiffs’ witness list, since that election was made pursuant to the consensual procedural arrangement recorded during trial on the reclassification of the impugned documents, thereby rendering her testimony superfluous.

In contrast, learned counsel for the Second and Third Defendants submitted that the impugned documents remained inadmissible, contending that the Plaintiffs had failed to satisfy the statutory requirements of Section 90A of the Evidence Act 1950 and urged the Court to disregard all evidence in Part C. Reinforcing his argument, he argued that no witness had properly proved them at trial. In particular, he pointed out that the Plaintiffs elected not to call the respective Company Secretary who had been subpoenaed and stood ready to testify. That, according to him, underscored an inadmissibility of the documents and amounted to an abandonment of their case on this solitary basis. S/N g9zUvSXk90qrcH4S1xnrlA

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs, which I find more compelling than that put forward for the Second and Third Defendants.

My reasons are these.

Procedural Estoppel and Agreement in the Reclassification of

Before addressing the merits of the objection, I find it necessary to situate it within its procedural context. It bears emphasis that the objection does not arise in isolation but against a backdrop of an evidential framework deliberately structured and expressly adopted by all parties (the consensual procedural arrangement).

Viewed, however, in the specific contours of this case, I acknowledge the force of the argument advanced for the Plaintiffs that the Second and Third Defendants’ move to revive this evidentiary objection after its consensual conversion from Part C to Part B is procedurally unsustainable. I, therefore, agree with Mr. Lionel Noel that, it is “… an afterthought for the Defendants’ Counsel to now claim in their submissions that the documents listed in paragraph 8.7 of the DWS are not in evidence, on the basis that they were never converted to Part B.” S/N g9zUvSXk90qrcH4S1xnrlA

My findings turn upon the following:

Foremost, it is a trite principle that inadmissible evidence does not acquire admissibility merely because no objection was raised (see: Popular Industries Ltd v. Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360; [1990] 1 CLJ 133; [1990] 2 CLJ (Rep) 635, and Mui Bank Bhd Johore v. Tee Puat Kuay [1993] MLJU 438; [1993] 4 CLJ 69), however the converse holds where parties deliberately endorse a procedural arrangement.

In the present case, not only was there no objection raised to the consensual procedural arrangement during the trial, but the parties actively participated in and acquiesced to the restructured evidential framework, thereby signalling unequivocal acceptance.

The reconfiguration of the impugned documents from Part C into Part B (the revised structure) was neither surreptitious nor accidental. It emerged from a consensus plainly expressed and confirmed before the Court. This procedural shift was not only known to all parties but was mutually adopted during the trial without reservation.

More significantly, the revised structure was captured in the Agreed Notes of Proceedings (Enclosure 137) without qualification or dissent. This consensus, recorded and unchallenged, formed what I regard as a legitimate expectation that the admissibility of the impugned documents was settled and not susceptible to further challenges. S/N g9zUvSXk90qrcH4S1xnrlA

It is trite that where a document falls within Part B, its authenticity is not in dispute, and the conditions of admissibility need not be satisfied (see: Presto Supermarkets (Subang) Sdn Bhd & Ors v. Attic Holdings Sdn Bhd [2024] 3 MLJ 892; [2024] CLJU 405).

In my view, to later disavow the revised structure strikes me as a retrograde step, undermining the legitimacy fostered by express and unchallenged consensus. The record demonstrates affirmative acceptance of the restructuring. In these circumstances, the Second and Third Defendants cannot now retreat from the position they themselves endorsed. The authorities cited for the Second and Third Defendants, namely Lee Chye Yen & Anor (t/a ‘Ebiz Solution Network’) v EoneNet Com Sdn Bhd [2014] 4 MLJ 595; [2014] 3 MLRA 468 and Risk-X Sdn Bhd v Capital Market Risk Advisor Sdn Bhd & Ors [2017] 8 MLJ 475; [2016] CLJU 1187 do not, in the circumstances of this case, advance their position.

The Agreed Notes of Proceedings (Enclosure 137) reveal that learned counsel for the Second and Third Defendants raised no objection to the use of the impugned documents during trial. All parties, including counsel for the Second and Third Defendants, made active reference to those documents throughout the hearing. In my assessment, the record discloses no subsequent dissent. That silence, read against the backdrop of their prior consensus, is both deliberate and telling. S/N g9zUvSXk90qrcH4S1xnrlA

The Plaintiffs had listed Mok Kar Yi, the Company Secretary of the Second and Third Defendants, and had subpoenaed her as a witness to support their claim. Her identity and capacity were clearly set out in the Plaintiffs’ Witness List (Enclosure 112) as well as in the Praecipe for Writ of Subpoena (Enclosure 118). However, following the reclassification of the impugned documents from Part C to Part B, they elected not to call her to testify, as the necessity for her evidence no longer arose.

In this context, it seems rather anomalous that learned counsel for the Second and Third Defendants now claim belatedly in his written submissions (see: Paragraphs 14.5.4. and 14.5.5. of the Second and Third Defendants’ Written Submission) that the Plaintiffs’ election not to call the Company Secretary amounts to abandoning their evidential foundation.

Raised after the evidentiary window had closed, I find this objection untimely and more tactical than bona fide. To my mind, it would be unjust to disadvantage the Plaintiffs for having restructured their evidence in reliance on the procedural consensus reached during trial.

Taken as a whole, it appears clear to me that the record discloses unambiguously that the Second and Third Defendants had ample opportunity to raise any objection to the revised structure but declined to do so, and they cannot now retreat from a position they S/N g9zUvSXk90qrcH4S1xnrlA themselves endorsed. (see: Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603; [2003] 3 CLJ 722; and Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57; [1997] 2 CLJ 104)

(ii) Admissibility and Evidential Weight of the Impugned Documents Under Section 90A of the Evidence Act 1950

Nonetheless, in the interest of completeness and lest it be found that I have fallen into error in my finding above, I consider it apt to address the admissibility of the impugned documents under Section 90A of the Evidence Act 1950.

In that regard, I am in respectful agreement with learned counsel for the Plaintiffs that the impugned documents fall squarely within the statutory framework.

My reasons are these.

The evidence shows:

the Plaintiffs’ business is fully digitalised and no longer dependent on hard copy documents, and

(ii) the information on the Bookings contained in the impugned documents, as relied upon by the Plaintiffs’ witnesses, was computer-generated records extracted from the Plaintiffs’ online booking platform. S/N g9zUvSXk90qrcH4S1xnrlA

In his submission, learned counsel for the Defendants acknowledged expressly the nature of the impugned documents as emanating from the Plaintiffs’ online booking platform, stating: “14.1.7. In stark contrast, this is a private online platform that was privately managed by New Golden Sea. …

14.2.9. All transactions were made online – as per the evidence of PW1 and PW2 – to which was transposed into documents by COSCO. …

14.6.5. Secondly, these documents were all generated based on the information derived from New Golden Sea’s platform. …

14.8.13. The Defendants reiterate the admissions of PW2 where there is no proof that the Defendants have received any documents - this being computer generated on a private platform.”

The Federal Court case of Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613; [2009] 2 CLJ 800 establishes a trite principle that a computer-generated document may be admitted in court under Section 90A of the Evidence Act 1950, either by a certificate confirming it was produced in the ordinary course of a computer’s use or through oral evidence. S/N g9zUvSXk90qrcH4S1xnrlA

Even absent formal certification, the provenance, continuous use, and digital integrity of the platform render the documents self-verifying. Judicial common sense compels recognition of their accuracy, particularly where no counter-evidence challenges the records’ authenticity.

(e)

Section 90A (6) of the Evidence Act 1950 reads, “90A Admissibility of documents produced by computers, and of statements contained therein …

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry, in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use” S/N g9zUvSXk90qrcH4S1xnrlA It follows, therefore, that the impugned documents may be presumed to have been produced by computer in the course of its ordinary use.

On a cumulative assessment, I am satisfied that the impugned documents were properly placed in Part B and lawfully admitted into evidence. The objection raised by the Second and Third Defendants carries no weight, having been effectively waived by their express acceptance of the consensual procedural arrangement reached during the trial. Moreover, the impugned documents satisfy the statutory requirements under Section 90A of the Evidence Act 1950, confirming that their production by computer may be presumed to have occurred in the ordinary course of use. For these reasons, I uphold their admissibility without reservation.

On the balance of probabilities, I find that the impugned documents were admissible in light of the procedural history and Section 90A of the Evidence Act 1950.

And in my judgment, the answer to the First Issue must be in the affirmative. S/N g9zUvSXk90qrcH4S1xnrlA SECOND ISSUE: WHETHER A CONTRACT OF CARRIAGE WAS ENTERED INTO BETWEEN THE FIRST PLAINTIFF AND THE FIRST DEFENDANT AS EVIDENCED BY THE BILLS OF LADING THIRD ISSUE: WHETHER THE FIRST DEFENDANT HAS KNOWLEDGE AND IS BOUND BY THE TERMS OF THE BILLS OF LADING Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that the existence of the Bookings and the Bills of Lading was not in dispute. According to him, the Bills of Lading demonstrated the capacity of parties under a contract of carriage with the First Plaintiff as the Carrier and the First Defendant as the Shipper. In the same breath, he asserted that based on the evidence, it was likely the First Defendant had no knowledge of the Bookings made by the Second and Third Defendants with the Plaintiffs, nor of the existence of any contract of carriage.

Learned counsel for the First Defendant submitted that no contractual relationship existed between the Plaintiffs and the First Defendant. According to him, the First Defendant had no knowledge of, and was not bound by, the terms of the Bills of Lading. He stressed that any use of the First Defendant’s name occurred without its authorisation and could not give rise to contractual privity. S/N g9zUvSXk90qrcH4S1xnrlA

Learned counsel for the Second and Third Defendants submitted that the Plaintiffs had not demonstrated the existence of any contract between themselves and the Defendants, and that there is no proof the Second and Third Defendants received any copies of the relevant documents.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs and the First Defendant, which I find more compelling than that put forward for the Second and Third Defendants.

I note that the Second and Third Issues are closely intertwined, as the determination of whether a contract of carriage existed between the First Plaintiff and the First Defendant necessarily requires an examination of the First Defendant’s knowledge of the dealings and transactions governing the Bills of Lading.

In these circumstances, I shall address both issues together, following the natural sequence in which they arise.

The Documentary Framework and Evidential Chain of the Bills of Lading

I turn first to the Bills of Lading and the evidence that substantiates their contents. S/N g9zUvSXk90qrcH4S1xnrlA

The Bills of Lading shows the following:

the First Defendant appears as the Shipper - the party who sends or consigns the goods; and

(ii) the First Plaintiff appears as the Carrier - the party responsible for transporting the goods.

PW2 affirmed that the Bills of Lading were drawn up by the Second Plaintiff on behalf of the First Plaintiff, relying solely on the Shipping Instructions prepared by the Second Defendant. Those instructions specified how the goods were to be handled, transported, and delivered. In my view, this creates a clear and continuous documentary chain connecting the dealings and transactions to the relevant parties.

The Plaintiffs’ internal records corroborate this version. The Shipping Instructions for the Bookings were all traced to the Third Defendant’s digital user profile under the name ‘Pangas28’. As I assess it, that digital footprint was neither denied nor deflected.

The digital trail establishes a clear chain of actions attributable to the Second and Third Defendants alone. In the absence of any digital or documentary signal linking the First Defendant, the record itself serves as compelling evidence that knowledge and consent were never communicated. S/N g9zUvSXk90qrcH4S1xnrlA

PW5 was unable to identify the individual within the Second or Third Defendant who submitted the Bookings on the First Defendant’s behalf. In my view, this does not undermine the validity of the transactions, as the gap lies only in personal attribution, not in their authenticity.

More tellingly, PW5 did not challenge the fact of the Bookings themselves, nor did she dispute the validity of the corresponding Bills of Lading. She confirmed without reservation that the shipments were indeed arranged for the Second Defendant. This admission, in my view, severs any plausible link between the shipments and the First Defendant.

As a whole, I am satisfied that while the Bookings and the Bills of Lading are genuine in form, authenticity does not of itself translate into contractual consequence. The question that follows is whether, as a matter of law, those documents may independently give rise to a contract of carriage.

(ii) The Legal Character of the Bills of Lading as an Instrument of Contract

Although learned counsel for the Plaintiffs invoked Maxicont Shipping Agencies Sdn Bhd & Anor v Safeair Technical Sdn Bhd & Anor [2022] MLJU 3508; [2022] 1 LNS 3128, I find little assistance in that authority, as the decision was subsequently set aside on appeal (see: Safeair Technical Sdn Bhd lwn Maxicont Shipping Agencies Sdn Bhd & Yang Lain [2024] CLJU(O) 11 – Court of Appeal). S/N g9zUvSXk90qrcH4S1xnrlA

However, I recognise the force of his reliance on the approach taken in PT Karya Sumiden Indonesia v Oceanmasters Marine Services Sdn Bhd & Anor [2016] 7 MLJ 589; [2014] 6 CLJ 251, wherein Nallini Pathmanathan J (now FCJ) endorsed the view that the issuance of bills of lading by a local agent, acting on behalf of the carrier, effectively evidences the contracts of carriage. Her Ladyship observed: “[7] D1 then appointed its local agent, one PT Pratama Indo International Indonesia ('Pratama') in Indonesia to arrange for the loading of the cargo. The cargo was delivered into the custody of Pratama who issued to the plaintiff its house bills of lading under the name of Sapphire Line ('the Sapphire house bills of lading'). In other words the Sapphire House Bills of Lading were so issued by Pratama as agent for D2 and/or sub-agent for D1 as carrier. In other words, the contracts of carriage are evidenced, inter alia, by D2's bills of lading or the Sapphire house bills of lading. They disclose the shipper to be the plaintiff and the consignee to be JMM. Delivery was to be given to JMM against the production of these original Sapphire house bills of lading….” (Emphasis added)

The reasoning in PT Karya Sumiden Indonesia illustrates that a bill of lading may constitute evidence of a contract of carriage where the circumstances establish a clear nexus between the shipper and the carrier, supported by conduct reflecting contractual intention. I bear in mind, however, that this principle applies only where the purported shipper had both knowledge of and consented to the contract of carriage. A document, however elegantly drafted, S/N g9zUvSXk90qrcH4S1xnrlA operates solely with the party’s awareness and approval. In the absence of either, it cannot give rise to any contractual obligation. While the Bills of Lading bear the First Defendant’s name, this alone cannot impute either actual or constructive knowledge. The law requires deliberate consent in which passive association does not suffice to forge a contractual nexus.

(iii) Knowledge and Consent as the Foundation of Contractual Nexus

As a matter of principle, the law cannot impose contractual liability on a party who neither had knowledge of nor consented to the act. To do so, in my view, would violate both principle and fairness. I must therefore examine whether the First Defendant possessed knowledge of and gave consent to the Bills of Lading or the Bookings from which they arose.

I shall frame my analysis around the following matters:

The First Defendant’s pleaded position forms the cornerstone of its resistance to being bound by the Bills of Lading for absence of knowledge. From the outset and throughout the trial, the First Defendant maintained a resolute and unwavering stance as follows:

It had no communication or business dealings with the Plaintiffs prior to receiving the Plaintiffs’ Letter of Demand on 22.12.2021. S/N g9zUvSXk90qrcH4S1xnrlA

(ii) It had not entered into any form of communication or commercial relationship with either the Second Defendant or the Third Defendant.

(iii) It denied having appointed the Second or Third Defendant to act as its agent in any capacity.

(iv) It had no recollection of signing any document connected with the Bookings, including the Bills of Lading, the Amendment Notices, or the Letters of Indemnity.

From the evidence adduced, it is plain that the First Defendant’s position remained consistent throughout. The company, through its witness DW1, denied any involvement or knowledge of the Booking Requests, and DW1’s testimony remained firm under cross-examination. The relevant pieces of evidence are as follows:

The First Defendant had no direct engagement with the Plaintiffs. Both PW2 and PW3 confirmed that all communications were channelled exclusively through PW5, who acted in his capacity as the common operational personnel of the Second and Third Defendants.

(ii) The Second and Third Defendants submitted the Bookings to the Second Plaintiff in their own names. S/N g9zUvSXk90qrcH4S1xnrlA

(iii) The Third Defendant submitted the Shipping Instructions to the Second Plaintiff using the Third Defendant’s digital user profile under the name ‘Pangas28’.

(iv) The Second Defendant made payment of the freight charges for the Bills of Lading directly to the Second Plaintiff.

PW5 accepted under oath that she acted only as a conduit id est intermediary, transmitting instructions between the Plaintiffs and the First Defendant. She neither claimed nor exercised any authority to bind the First Defendant beyond that narrow administrative role.

The evidence, when viewed in totality, discloses not merely the absence of participation but the absence of knowledge itself. Knowledge is the predicate of consent, for no party can be said to have agreed to what he did not know. Section 10 of the Contracts Act 1950 gives statutory expression to that principle. It reads: “10 What agreements are contracts All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void…” S/N g9zUvSXk90qrcH4S1xnrlA

Section 10, in substance, makes consent the foundation of every binding agreement. A contract cannot arise unless the parties, competent in law, have freely and knowingly agreed to its terms. This statutory requirement, to my mind, admits of no ambiguity. It follows that absent knowledge and free consent, no contractual tie can be forged. The principle of free consent lies at the heart of contractual autonomy, guarding against the imposition of liability by mere association.

Independently of the viva voce evidence advanced for the First Defendant, I find that the documentary and testimonial evidence presents a coherent and compelling account corroborating the First Defendant’s complete absence of knowledge. In my assessment, the exclusive routing of communications through PW5, the digital trail tracing the involvement of the Second and Third Defendants and the absence of engagement or instruction from the First Defendant collectively reinforce the position that the First Defendant remained unaware of any dealings or transactions involving the Bookings and the Bills of Lading at all material times.

The chronology of events and the operational structure of the First Defendant reveal no meaningful basis for it to have acquired retrospective awareness. In my view, the systemic insulation from the unilateral actions of the Second and Third Defendants, coupled with the evidential coherence of the digital and documentary record, demonstrates that the First Defendant’s absence of knowledge was not mere assertion S/N g9zUvSXk90qrcH4S1xnrlA but the natural and inevitable consequence of the arrangements and processes in place.

Viewed holistically, I am satisfied that the convergence of testimonial certainty, the digital trail, and procedural insulation demonstrates that the First Defendant lacked both knowledge and consent. The Bills of Lading, though genuine in form, cannot give rise to contractual obligations in the absence of these essential elements.

On the balance of probabilities, I find that:

there was no contract of carriage entered into between the

(ii) the First Defendant had no knowledge of, and is not bound by, the terms of the Bills of Lading.

And in my judgment, both the Second and Third Issues must be answered in the negative. S/N g9zUvSXk90qrcH4S1xnrlA FOURTH ISSUE: WHETHER THE FIRST DEFENDANT IS THE SHIPPER, AND IF THE ANSWER IS POSITIVE, BEING THE SHIPPER NAMED IN THE BILLS OF LADING, IS RESPONSIBLE FOR PAYING THE DND CHARGES INCURRED PURSUANT TO THE TERMS OF THE BILLS OF LADING Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that if the Court finds the First Defendant had no knowledge of the Bookings and the Bills of Lading, and therefore never entered into any contract with the First Plaintiff, then the First Defendant cannot be treated as the Shipper under the Bills of Lading and would not be liable for the DND Charges.

Learned counsel for the First Defendant submitted that since the First Defendant had no knowledge and no contractual relationship existed, it could not be treated as a contracting party and bore no liability under the Bills of Lading.

Learned counsel for the Second and Third Defendants submitted that the Plaintiffs had adopted the title Shipper entirely on their own accord. He further argued that no statutory responsibilities attach to the Shipper in respect of the shipment or the DND Charges. He concluded that the designation of the First Defendant as the Shipper was wholly of the Plaintiffs’ creation, employing title that was self-designated and devoid of any formal definition or prescribed responsibilities. S/N g9zUvSXk90qrcH4S1xnrlA

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs and the First Defendant, which I find more compelling than that put forward for the Second and Third Defendants.

My reasons are these:

The Bills of Lading collectively demonstrate a coherent and enforceable contractual framework that delineates the respective rights and obligations of the Shipper and the Carrier, including the entitlement to recover demurrage, detention, and related charges.

(ii) PW2 gave a precise account of the obligations assigned to the Shipper under the Bills of Lading. These duties encompass the return of the Carrier’s containers empty and clean within the stipulated period, timely performance of all contractual obligations and responsibility for demurrage detention and ancillary charges arising from delay or non-compliance.

(iii) PW4 corroborated PW2’s account, confirming the circumstances under which the DND Charges were imposed, including the failure of the consignee to take delivery within the timeframe, the resulting idle cargoes at Hai Phong Port, Vietnam, and its ultimate disposal. S/N g9zUvSXk90qrcH4S1xnrlA

(iv) Notwithstanding the evident clarity of these contractual obligations, I consider it essential to draw a deliberate and careful distinction between a party merely named as the shipper and a party who in fact had knowledge of, consented to, and became bound by the contract. This distinction is not one of form but of substance, for liability must rest on genuine consent rather than mere description.

On a careful appraisal of the evidence and the circumstances in which the dealings and transactions was manifested, I reach the following conclusions:

As is trite, legal responsibility arises from actual consent and authority.

The mere appearance of the First Defendant as the Shipper on the respective documents arising from the dealings and transactions does not convert a passive party into an active obligor. What matters is not the title employed but whether there existed a genuine meeting of minds signifying consent to the contractual terms.

Absent evidence that the First Defendant possessed knowledge of or consented to the Bookings or the Bills of Lading, or that it authorised the Second or Third Defendants to act on its behalf, no contractual liability can properly be imposed upon it. S/N g9zUvSXk90qrcH4S1xnrlA

The First Defendant’s position remains consistent throughout, asserting that it never entered into a contract with the Plaintiffs. This stance is unchallenged and amply supported by the documentary and testimonial record.

There is no indication that the First Defendant exercised any control over, or derived benefit from, the shipments in question. In the absence of such evidence, it cannot be deemed the Shipper for the purposes of the Bills of Lading or the Bookings, and no liability can properly be imputed.

Contemporaneous communications or instructions from the First Defendant regarding the Bookings or Bills of Lading are entirely absent. A party properly acting as a shipper would have certainly engaged in or directed these contractual obligations. That is not the position here, however.

Commercial reality corroborates the First Defendant’s position. The evidence shows that the operative responsibility arising from the dealings and transactions rested entirely with the Second and Third Defendants. This further confirms that the First Defendant cannot be treated as the Shipper in the present case.

I reject the contention advanced for the Second and Third Defendants that the Plaintiffs had adopted the title Shipper entirely on their own accord and that no S/N g9zUvSXk90qrcH4S1xnrlA statutory responsibility attached to that designation in respect of the shipment or the DND Charges. The designation, in my view, reflects deliberate commercial attribution rather than unilateral adoption.

Taken cumulatively, the evidence demonstrates that the First Defendant’s mere designation as the Shipper in the Bills of Lading is incidental and does not generate legal liability. The law of agency, consent, and contractual autonomy converges to support the conclusion that liability for DND Charges cannot be ascribed without demonstrable knowledge and authorisation. This protects commercial actors from obligations arising from unilateral acts of third parties.

On the balance of probabilities, I find that the First Defendant is not the Shipper under the Bills of Lading.

And in my judgment, the Fourth Issue must be answered in the negative. S/N g9zUvSXk90qrcH4S1xnrlA FIFTH ISSUE: WHETHER THE SECOND AND THIRD DEFENDANTS ACTED AS AGENTS OF THE FIRST DEFENDANT IN ALL THE DEALINGS WITH THE PLAINTIFFS Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that the Second and Third Defendants had untruly represented themselves out as agents of the First Defendant in all dealings with the Plaintiff. According to him, they produced neither a letter of appointment nor an agency agreement, and no witness was called to establish the existence of agency. Such an untrue representation induced the Plaintiffs to act to its detriment, leading it to enter into the transactions and assume obligations it would not otherwise have undertaken.

Learned counsel for the First Defendant established during trial that the First Defendant had never appointed the Second and Third Defendants as its agents, nor had it ever entered into any communication or business dealings with them.

Learned counsel for the Second and Third Defendants submitted that the Plaintiffs rely solely on self-proclaimed titles, namely “the Booking Agents” and “the Forwarding Agents” to ascribe to the Second and Third Defendants a connection with the First Defendant and the claim. According to him, the titles were self-created terminologies created by the Plaintiffs to impose an obligation of payment. Concluding the argument, he submitted that the Second and Third Defendants cannot be regarded as agents of the First Defendant. S/N g9zUvSXk90qrcH4S1xnrlA

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs and the First Defendant, which I find more compelling than that put forward for the Second and Third Defendants.

My reasons are these:

Untrue Representations Giving Rise to the Appearance of

The First Defendant consistently maintained it never appointed the Second and Third Defendants as its agents, and that there were no communications or business dealings between the First Defendant and the Second and Third Defendants.

The Second and Third Defendants projected themselves as if acting for the First Defendant, creating a sustained and deliberate impression of agency. This was no passing impression. It was sustained from the earliest stage of the dealings and transaction, begun from the Booking Requests, carried through the submission of the Shipping Instructions, the procurement and telex release of the Bills of Lading, the subsequent issuance of the Amendment Notices, and extending to the final disposal of the unclaimed cargoes. The pattern was deliberate S/N g9zUvSXk90qrcH4S1xnrlA and consistent, and actively misled the Plaintiffs into believing in an agency relationship.

As regards the Second Defendant, the evidence shows:

It submitted the Booking Numbers COAU7120736930 and COAU7120739970 to the Second Plaintiff, expressly asserting that it acted on behalf of the First Defendant.

(ii) The corresponding Booking Request Receipts described it unequivocally as the First Defendant’s Forwarding Agent.

As regards the Third Defendant, the evidence shows:

It submitted the Booking Numbers COAU7120742820 and COAU7120743010 to the Second Plaintiff, again purporting to act on behalf of the First Defendant.

(ii) It lodged the Shipping Instructions for those Bookings in the name of the First Defendant and on behalf of the Second Defendant.

(iii) The digital trail linking these instructions to the Third Defendant’s digital user profile under the name ‘Pangas28’ is a fact that corroborates the creation of a false appearance of agency. S/N g9zUvSXk90qrcH4S1xnrlA

PW5, who testified in her capacity as Operational Personnel of the Second and Third Defendants, reinforces the Plaintiffs’ account that they projected an untrue appearance of agency. She confirmed that she was concurrently employed by both the Second and Third Defendants and, in that capacity:

she liaised with the Plaintiffs on their behalf; and

(ii) she sent correspondence bearing the letterheads of both companies interchangeably. PW5’s testimony is not merely ancillary but constitutes direct confirmation from within the Second and Third Defendants’ own ranks, reflecting the systematic and deliberate manner in which they cultivated the appearance of acting on behalf of the First Defendant, thereby inducing the Plaintiffs to rely upon this untrue representation.

As opposed to the Plaintiffs and the First Defendant, the Second and Third Defendants elected not to produce any letter of appointment or agency agreement with the First Defendant, nor did they call any witness to substantiate the existence of the alleged agency relationship. Their silence in the face of detailed evidence is telling and amounts to the suppression of material evidence central to the alleged agency. This is not minor or peripheral but reinforces the misleading impression they sought to cultivate. S/N g9zUvSXk90qrcH4S1xnrlA

Illustration (g) to Section 114 of the Evidence Act 1950 reads: “114 Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:- …

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

I have well in mind that an adverse inference can only be drawn if the plaintiffs have successfully established their case and if the defendants fail to call relevant witness or witnesses to rebut the plaintiffs establish case (See: Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] 2 MLJ 805; [2022] 3 CLJ 274). And while I accept that the Second and Third Defendants have a right not to testify and lead any evidence, such a right does not prevent the Plaintiffs who have successfully established their case from invoking Section 114(g) of the Evidence Act 1950 S/N g9zUvSXk90qrcH4S1xnrlA where material evidence is suppressed or withheld. The absence of testimony from the person who holds the facts gives rise to a presumption that the evidence, if adduced, would have been adverse (See: Krishnan Nambiar s/o Perabakaran & Ors v Dr P Mahendran &

From my standpoint, the present case falls squarely within the parameters of Munusamy Vengadasalam v. PP [1987] 1 MLJ 492; [1987] 1 CLJ 250, in which an adverse inference may be drawn where “there is withholding or suppression of… important and material witness to the case.” As Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751; [2009] 5 CLJ 200 makes clear that when a person on one side fully conversant with the facts refrains from giving evidence, the evidence presented for the opposite side “ought to have been presumed to be true” and “the court ought to have drawn an adverse inference”. Taken together, I find that the pattern of communications, the use of the First Defendant’s name and letterhead, the suppression of material evidence, and PW5’s testimony all reinforce my conclusion that the Second and Third Defendants deliberately created the appearance of agency, which was both untrue and misleading. S/N g9zUvSXk90qrcH4S1xnrlA

(ii) Agency and Pretended Agency under the Contracts Act 1950

Section 153 of the Contracts Act 1950 reads: "135 “Agent" and "principal" An "agent" is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the "principal".”

By contrast, Section 188 of the Contracts Act 1950 provides that a person who untruly represents himself as an authorised agent of another and thereby induces a third party to deal with him as such may be liable for any loss or damage caused. Such a person falls within the statutory description of a pretended agent under Section 188, the legal consequences of which I shall consider more fully in a later segment of this judgment.

Be that as it may, it is apparent that none of the counsel expressly invoked the statutory term ‘pretended agent’. Their argument rested firmly on the provisions of Section 188 as the operative basis of liability for those who falsely claim authority to act for another. It appears to me that although precise terminology was not employed, the statutory principle is nonetheless fully engaged in the argument and squarely addresses the scenario before this Court. S/N g9zUvSXk90qrcH4S1xnrlA

The Second and Third Defendants, having untruly represented themselves as agents, systematically created the misleading impression that they were acting for the First Defendant. In doing so, they assumed the position of pretended agents and thus fall squarely within the scope of Section 188.

I reject the argument advanced for the Second and Third Defendants that the Plaintiffs placed undue emphasis on the titles “the Booking Agents” and “the Forwarding Agents” described as merely “self-proclaimed titles”, “self-imposed jargon” or “self-created terminologies”. To my mind, what matters is not the terminology but the actual conduct and untrue representations. As evidenced by the Booking Requests, the Shipping Instructions, and PW5’s testimony, the Second and Third Defendants untruly represented themselves as if acting for the First Defendant. Their status as pretended agents under Section 188 arises from these untrue representations, irrespective of the titles they adopted.

Most importantly, the Statement of Agreed Facts (Enclosure 102) make clear that: “According to the four booking requests, both the Second Defendant, Yip Fong Holding, and the Third Defendant, Tong Zhou Logistics, are named as the 'Booking Party' in two of the requests each. The Second Defendant, Yip Fong Holding is named as the ‘forwarder’ S/N g9zUvSXk90qrcH4S1xnrlA and the First Defendant is named as the ‘shipper’ in all four booking requests.” Viewed collectively, the Second and Third Defendants, by falsely presenting themselves as acting for the First Defendant, clearly acted as pretended agents under Section 188 of the Contracts Act 1950.

Learned counsel for the Second and Third Defendants contended that the substance of this suit rests upon metadata or online information input by them, which he assert was relied upon to establish agency between themselves and the First Defendant, and that this renders such evidence unreliable (the metadata argument). Supporting this argument, he cited Sundra Rajoo a/l Nadarajah v Leaderonomics Sdn Bhd & Anor [2024] 7 MLJ 223; [2023] 7 CLJ 485, which held that “…metadata analysis can be manipulated and cannot properly be regarded as reliable evidence supportive of either side’s case in a court dispute…it cannot identify the person who typed and or published the poison pen letter.”

Upon holistic evaluation, I find the metadata argument unpersuasive. My reasons are these:

Assessment ought not to be confined to metadata in isolation, but must be considered in the context of the entire evidentiary canvas, which itself functions as a mechanism of verification.

(ii) PW5 testified that she was concurrently employed by both Second and Third Defendants, had no fixed role in either S/N g9zUvSXk90qrcH4S1xnrlA company, and she would assist either one based on the instructions of Mr Koh Seng Yip, the common director of the Second and Third Defendants. This demonstrates that actions recorded in the metadata can be reliably attributed to their respective agents.

(iii) The metadata corresponds with contemporaneous documents, Booking Requests, Shipping Instructions, and testimony from multiple witnesses, including PW1 and PW2. Taken together, this evidence forms a coherent factual pattern, verifying both the sequence of actions and the identity of the parties involved.

(iv) When considered alongside the broader documentary and oral evidence, the metadata reveals a sequence of actions that would be highly improbable to fabricate or manipulate across multiple systems and parties. This inherent verification strengthens the factual narrative and diminishes the force of theoretical challenges advanced for the Second and Third Defendants.

There is no evidence whatsoever that the metadata was manipulated, and in the absence of such proof, it retains its full evidentiary and self-verifying value.

(vi) The metadata argument advanced for the Second and Third Defendant that the Plaintiffs’ witnesses “… do not even verify the identities of the booking agents or forwarding agents … now making arbitrary demand” is, in my view, untenable. And I acknowledge the strength of argument set for the Plaintiffs S/N g9zUvSXk90qrcH4S1xnrlA that it was an attempt “…to shift blame onto the Plaintiffs for not carrying out the alleged verification when, in reality, D2 and D3 are essentially two sides of the same coin.”

(vii) The absence of testimony from any representative of the First Plaintiff does not warrant an adverse inference, since such evidence would not have been relevant to the issues under consideration.

(viii) Sundra Rajoo occupies a different legal terrain that does not, in my view, undermine the evidentiary value of the metadata in the present case and thus falls wide of the mark. Hence, I do not regard Sundra Rajoo as posing any real obstacle to the reliability of the evidence before the Court here.

I find that, considered in the full evidentiary context, the metadata is reliable, self-verifying and materially supports the factual narrative of this case. Summing up

On the balance of probabilities, I am satisfied that the Second and Third Defendants were not authorised agents of the First Defendant in any genuine sense under Section 153 of the Contracts Act 1950. Their conduct instead reveals that they acted as pretended agents, thereby falling squarely within the parameter contemplated by Section 188 of the Contracts Act 1950.

And in my judgment, the Fifth Issue must be answered in the negative. S/N g9zUvSXk90qrcH4S1xnrlA SIXTH ISSUE: WHETHER THE SECOND AND THIRD DEFENDANTS HAD THE AUTHORITY TO SUBMIT THE BOOKINGS TO THE SECOND PLAINTIFF ON BEHALF OF THE FIRST DEFENDANT Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that the Second and Third Defendants had no authority to submit the Bookings to the Second Plaintiff on behalf of the First Defendant. Given the circumstances, he argued that they lacked any mandate to submit the Bookings on the First Defendant’s behalf.

Learned counsel for the First Defendant argued that, since the First Defendant had never appointed the Second and Third Defendants as its agents, they had no authority to submit the respective Bookings on its behalf.

Learned counsel for the Second and Third Defendants submitted that mere reliance on the self-proclaimed titles of “the Booking Agents” and “the Forwarding Agents” negates any claim of agency between the Plaintiffs and the Second and Third Defendants. In the absence of agency, the question of authority to submit the Bookings is immaterial. S/N g9zUvSXk90qrcH4S1xnrlA

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs and the First Defendant, which I find more compelling than that put forward for the Second and Third Defendants.

Section 139 of the Contract Act 1950 provides: “139 Agent's authority may be expressed or implied The authority of an agent may be expressed or implied.”

(ii) The Court of Appeal in KGN Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 1 MLJ 233; [1996] 2 CLJ 611; [1996] 1 MLRA 178 reinforces the position that: “Part X of the Contracts Act 1950, which contains the relevant provisions on agency does not contain any requirement that the appointment of an agent or sub-agent has to be in writing or be evidenced in writing. Hence the appointment may be express or implied, that is to say, it may be gathered from the facts and circumstances of a case and from the conduct of the parties: see, Kuchwar Lime & Stone Co v Dehri Rohtas Light Railway & Co Ltd AIR 1969 SC 193.”

(iii) Even so, authority must be proved and cannot be presumed. The mere representation of agency does not establish its existence. The law demands clear proof of authority before the acts of one may bind another. S/N g9zUvSXk90qrcH4S1xnrlA

(iv) I, however, discern no trace of express authority. The First Defendant neither conferred nor confirmed any mandate upon the Second or Third Defendants. No written appointment, verbal instruction, or contemporaneous act of authorisation was ever shown to exist.

Equally, there is an absence of implied authority. Nothing in the dealings, correspondence, or commercial pattern suggests any tacit consent or subsequent ratification by the First Defendant. The conduct of the Second and Third Defendants was unilateral throughout, undertaken without knowledge, consent or participation of the First Defendant.

(vi) Having found the absence of both express and implied authority, I am not persuaded that repeated representations, however consistent, can fill that void. The law draws a firm line between assertion and proof. In the dealings and transactions relating to the Bills of Lading, the Second and Third Defendants’ invocation of the First Defendant’s name was self-originated and unendorsed. Their actions, viewed as a whole, demonstrate a pattern of unilateral conduct rather than authorised representation. Without clear evidence of empowerment, no amount of repetition can translate into authority.

(vii) PW5’s testimony makes it plain that she acted solely under the instructions of Mr Koh Seng Yip, the common director of the Second and Third Defendants. Her functions were divided between those two entities, and there is no evidence that any of her actions were carried out under a mandate from the First Defendant. S/N g9zUvSXk90qrcH4S1xnrlA

(viii) The fact that Mr Koh Seng Yip exercised control over both the Second and Third Defendants cannot, in law or in logic, confer authority to act for the First Defendant. He held no office within, and bore no relationship to the First Defendant. His direction of the operations of the Second and Third Defendants was confined to their internal management and could not extend to bind a distinct and independent company. Common directorship or corporate connection does not of itself establish agency, for the law demands a strict separation between control over one entity and authority to represent another.

(ix) I reject the contention of the Second and Third Defendants that mere reliance on their self-proclaimed titles of “the Booking Agents” and “the Forwarding Agents” negates agency. This argument misconceives the law, for the absence of authority from the First Defendant renders their submission of the Bookings legally ineffectual and incapable of binding or imposing any obligation on the First Defendant. The Principal-Agent Relationship Between the Plaintiffs

I note, en passant, that learned counsel for the Second and Third Defendants assailed the existence of a principal-agent relationship between the Plaintiffs (the Principal-Agent argument). S/N g9zUvSXk90qrcH4S1xnrlA

I am unable to accept that submission for the following reasons:

Sections 135 and 139 of the Contract Act 1950 define an agent as a person employed to act for another with authority that may be express or implied. Authority need not be evidenced in writing and may be inferred from the circumstances and conduct of the parties as affirmed in KGN Jaya Sdn Bhd.

(ii) The Plaintiffs’ Amended Statement of Claim clearly states “2. … The Second Plaintiff is the local agent of the First Plaintiff in Malaysia.”

(iii) The Second Plaintiff routinely acted in a manner that materially affected the First Plaintiff’s interests.

(iv) PW1 to PW4 consistently testified to the Second Plaintiff’s engagement in communications and transactional steps on behalf of the First Plaintiff, including the preparation and handling of the Bills of Lading.

The Second Plaintiff’s official stamp on the reverse of the Bills of Lading provides documentary confirmation of its role. This, combined with the operational conduct observed, demonstrates that the Second Plaintiff was empowered to act in the First Plaintiff’s commercial affairs.

(vi) The Second Plaintiff’s conduct throughout the dealings and transactions demonstrates that the agency was operative in practice, extending beyond mere formality. Its actions were S/N g9zUvSXk90qrcH4S1xnrlA treated as authoritative, reinforcing the First Plaintiff’s commercial position and conferring practical effect to the agency relationship.

(vii) The Second and Third Defendants have adduced no evidence, whether documentary or oral, to controvert the principal-agent relationship between the Plaintiffs.

In the light of these considerations, I am satisfied that the Plaintiffs’ agency relationship was both legitimate and operative, carrying full commercial and contractual weight. The principle in KGN Jaya Sdn Bhd establishes that the absence of a formal contract of agency is not conclusive evidence that no principal-agent relationship exists. The conduct of the Second Plaintiff clearly inferred that it was the authorised agent of the First Plaintiff, acting effectively in the ordinary course of business, materially advancing the First Plaintiff’s interests. By contrast, the evidence establishes that the Second and Third Defendants acted without the First Defendant’s authority. They presented themselves as authorised but were, in truth, pretended agents under Section 188, lacking any genuine authority.

On the balance of probabilities, I find that the Second and Third Defendants did not have the authority to submit the Bookings to the Second Plaintiff on behalf of the First Defendant.

And in my judgment, the Sixth Issue must be answered in the negative. S/N g9zUvSXk90qrcH4S1xnrlA SEVENTH ISSUE: WHETHER THE SECOND AND THIRD DEFENDANTS ARE PERSONALLY LIABLE TO THE PLAINTIFFS FOR THE DND CHARGES INCURRED PURSUANT TO THE BILLS OF LADING Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that while an agent is generally not personally liable to a third party when contracting for a principal, the Second and Third Defendants having untruly represented themselves as agents of the First Defendant, fall within Section 188 of the Contracts Act 1950 and must compensate the Plaintiffs for the losses incurred, namely the DND Charges of RM556,706.16 arising from their untrue representation.

Learned counsel for the Second and Third Defendants contended that no statutory obligation attaches to “the Booking Agents” or “the Forwarding Agents” observing that neither title is defined under statute in relation to the shipment or the DND Charges. On that basis, he argued that there is no foundation to impose any liability on the Second and Third Defendants, asserting that the Plaintiffs have not adduced sufficient evidence against them.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs, which I find more compelling than that put forward for the Second and Third Defendants. S/N g9zUvSXk90qrcH4S1xnrlA

My reasons are these.

Agency Principles and the Statutory Basis for the Second and

I find it necessary to outline the governing principles of agency under the Contracts Act 1950, particularly the circumstances in which an agent may incur personal liability for acts undertaken purportedly on behalf of a principal.

Section 179 of the Contracts Act 1950 reads: “179 Enforcement and consequences of agent's contracts Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into and the acts done by the principal in person.”

Section 183 of the Contracts Act 1950 reads: “183 Agent cannot personally enforce, nor be bound by, contracts on behalf of principal In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases: S/N g9zUvSXk90qrcH4S1xnrlA

where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

where the agent does not disclose the name of his principal; and

where the principal, though disclosed, cannot be sued.”

As a general rule, an agent acting within the parameters of authority granted by a principal is not personally liable to third parties for any contractual obligations entered into on the principal’s behalf.

This principle, however, shifts where a person untruly represents himself as an authorised agent and the alleged principal neither ratifies nor adopts the acts. Section 188 of the Contracts Act 1950 reads: “188 Liability of pretended agent A person untruly representing himself to be the authorized agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing.”

The Court of Appeal in G Balan Govindasamy v Lee Moi Moi & Ors [2017] MLJU 266; [2017] 8 CLJ 530 elaborated on the doctrine of breach of warranty of authority: “[32] To begin with, it is pertinent to note that s. 188 of the Contracts Act 1950 is analogous to the common law doctrine of implied S/N g9zUvSXk90qrcH4S1xnrlA warranty of authority by the agent. This doctrine, established in Collen v. Wright [1857] 8 E & B 647, Ex Ch, enunciates that an agent who impliedly warrants that he has authority is liable to be sued on his warranty. The duty is grounded on an implied warranty by the agent that he has authority, and the action, being in contract, lies even if the agent honestly believed he had authority. [34] Stated simply, the doctrine of implied warranty of authority is this: where any person purports to do any act or make any contract as agent on behalf of a principal, he is deemed to warrant that he has, in fact, authority from such principal to do the act to make the contract in question. And if he has no such authority, he is liable to be sued for breach of warranty of authority by any third person who was induced by his conduct in purporting to act as agent, to believe that he had authority to do the act or make the contract, and who, by acting upon such belief, has suffered loss in consequence of the absence of authority (Halsbury's Laws of England, 'Agency', 4th edn, reissue, vol 1(2), para. 172). [46] The governing principles may be distilled as follows. As a general rule, an agent is liable for breach of warranty of authority if the third party has relied on his claim to authority. The agent's liability arises not from any wrong or omission on his part, but from an implied undertaking made by him that the authority he professes to have does in point of fact exist. It matters not whether the agent acted bona fide or under a mistaken belief or had no means of knowledge.” (Emphasis added) S/N g9zUvSXk90qrcH4S1xnrlA

I note that the pretended agency, as recognised under Section 188, exists to distinguish those who merely assert authority from those who are lawfully empowered to act. This classification safeguards the integrity of commercial dealings by ensuring that only acts performed with proper authority bind the purported principal, while untrue representations expose the pretended agent to liability. It underscores that a pretended agent cannot confer rights or obligations on the principal and serves both a preventive and remedial function in agency law.

In this context, it is clear that the statutory obligation of the Second and Third Defendants emanates from the relevant provisions of the Contracts Act 1950, particularly Section 188, and is further reinforced by the express terms of the Bills of Lading. The combination of statutory prescription and contractual documentation underscores that their personal liability arises from the untrue representations made while purporting to act as agents of the First Defendant.

In light of the foregoing, the argument advanced for the Second and Third Defendants that no statutory obligation attaches to them as “the Booking Agents” or “the Forwarding Agents” and that they bear no personal liability is wholly misplaced. The cumulative force of the statutory provisions demonstrates that liability arises from the conduct and untrue representation, not from any formal title. Section 188 imposes liability on anyone who untruly represents himself as an agent of another and thereby causes loss to a third party. Liability does not depend on formal titles but arises from the representation and the reliance it induces. S/N g9zUvSXk90qrcH4S1xnrlA

(ii) Evidentiary Record and Plaintiffs’ Reliance on the Untrue Representation

I turn next to the evidentiary record, which establishes the factual matrix underpinning the Plaintiffs’ reliance and the conduct of the Second and Third Defendants. The evidence demonstrates:

The Second and Third Defendants repeatedly made untrue representations of themselves as agents of the First Defendant in relation to the Bookings and the Bills of Lading.

The Second and Third Defendants not only asserted authority they did not possess but also actively concealed the absence of any mandate from the First Defendant.

This untrue representation induced the Plaintiffs to proceed with the dealings and transactions concerning the Bookings and incidental shipping arrangements, on the mistaken assumption that the Second and Third Defendants were duly authorised agents of the First Defendant. The Plaintiffs’ reliance was genuine and reasonable, demonstrated by the acceptance of the Bookings and the issuance of the Bills of Lading naming the First Defendants.

It bears emphasis that the Plaintiffs’ reliance was objectively justified in light of the Second and Third Defendants’ consistent conduct. The repeated representation, the operational engagement with the Bookings, and the use of corporate letterheads and digital credentials collectively conveyed authority. Such indicia are precisely the sort of S/N g9zUvSXk90qrcH4S1xnrlA representations Section 188 contemplates as creating actionable liability for a pretended agent.

In its collective aspect, I hold the view that the consequence of the Plaintiffs’ reliance on the untrue representation is neither speculative nor remote. The Plaintiffs incurred a tangible loss as a direct result, reflected in the DND Charges of RM556,706.16, as precisely quantified and substantiated by the Invoices issued by the Second Plaintiff.

(iii) The Second and Third Defendants’ Claim of Non-Liability and Evidentiary Gaps

The submission advanced for the Second and Third Defendants that there is no basis for imposing liability is, in my view, wholly misplaced in light of the evidentiary record, for the following reasons:

Learned counsel for the Second and Third Defendant did not cross-examine PW2 regarding her evidence that the Shipping Instructions for the Bookings were submitted by a representative of the Third Defendant using the Third Defendant’s digital user profile under the name ‘Pangas28’.

The Second and Third Defendants adduced no evidence, whether documentary or oral, to support their pleaded defence that the Third Defendant was not involved in the dealings and the transactions. S/N g9zUvSXk90qrcH4S1xnrlA

PW5 stated that she did not make the Bookings and also indicated that the Bookings concerned D2’s shipments. She did not provide an explanation for the appearance of D3’s name on the Booking Acknowledgements, nor did she address their accuracy.

The Second and Third Defendants led no evidence, documentary or oral, to substantiate their claim of non-liability in respect of the dealings and transactions.

Taken together, I am driven to hold that these evidentiary shortcomings reinforce that the Second and Third Defendants’ claim of non-liability is entirely unsubstantiated and do not diminish their personal liability under Section 188.

On the balance of probabilities, I find that the Second and Third Defendants are personally liable to the plaintiffs for the DND Charges incurred pursuant to the Bills of Lading.

And in my judgment, the Seventh Issue must be answered in the affirmative. S/N g9zUvSXk90qrcH4S1xnrlA

CLAIM FOR THE CONTRACTUAL INTEREST AT THE DAILY RATE OF 1% ON THE SUM OF RM556,706.16 AFTER FOURTEEN (14)

28.10.2021, FROM THE SECOND AND THIRD DEFENDANTS Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that the contractual interest constitutes part of the loss suffered by the Plaintiffs as a result of the dealings and transactions. According to him, since the Second and Third Defendants neither disputed the interest nor challenged the Invoices, either in their pleaded defence or during the trial, they are liable under Section 188 of the Contracts Act 1950 to pay the invoiced sum together with the contractual interest imposed.

Learned counsel for the Second and Third Defendants made no submission on the Plaintiffs’ entitlement to the respective interest.

I find the argument advanced for the Plaintiffs to be dripping with force. S/N g9zUvSXk90qrcH4S1xnrlA

My reasons are these:

All the Invoices contain, among others, the following terms: “COSCO SHIPPING Lines (Malaysia) Sdn Bhd will impose 0.1% daily interest additional if the payment is not received after 14 calendar days from the invoice date”

(ii) I note that the respective Interest Clause was expressly stipulated in the Invoices issued by the Second Plaintiff, addressed both to the First Defendant as the Shipper named in the Bills of Lading and to the Second and Third Defendants as the parties responsible for the Bookings. I regard this Interest Clause as forming an essential and foreseeable part of the loss arising from the Second and Third Defendants’ untrue representation.

(iii) Even if the Interest Clause was not agreed directly with the Second and Third Defendants, I am satisfied that by untruly representing themselves as agents of the First Defendant, they assumed responsibility for all contractual consequences flowing from their untrue representations including the contractual interest. In my view, the Invoices were not mere routine documents. They carried binding force and embodied the commercial framework within which the Plaintiffs were entitled to act. S/N g9zUvSXk90qrcH4S1xnrlA

(iv) On the evidence, I find that the Second and Third Defendants, as experienced freight forwarders, must have appreciated that interest on overdue sums is standard commercial practice. Their repeated silence in the face of invoicing cannot be treated as inadvertence. It demonstrates clear acquiescence to the contractually stipulated interest and reinforces their personal liability under Section 188.

PW4’s unchallenged testimony confirms that the Interest Clause was clearly communicated to them in their assumed capacity as agents of the First Defendant. I regard their failure to respond or contest the interest as highly significant.

(vi) Section 188 of the Contracts Act 1950, in my view, speaks directly to this situation. I am satisfied that the Plaintiffs’ reliance on the untrue representations of the Second and Third Defendants was both real and reasonable.

(vii) The Court of Appeal in G Balan Govindasamy recognised that a pretended agent who misrepresents their authority is liable for the full measure of commercial harm, including contractually defined consequences, regardless of whether the agent acted bona fide or under a mistaken belief. I adopt this principle in my reasoning. S/N g9zUvSXk90qrcH4S1xnrlA

(viii) I remain conscious that interest clause can, in some instances, attract judicial scrutiny if they verge on punitive or unconscionable. Here, the daily rate of 0.1%, although cumulatively significant, was plainly stated and never challenged. I find nothing to suggest that it is extortionate or commercially unreasonable. Summing-up

On the balance of probabilities, I find that the Second and Third Defendants are entitled to claim for the contractual interest at the daily rate of 0.1% on the sum of RM556,706.16 after fourteen (14) days from 28.10.2021 until the date of the Judgment, i.e. on 30.7.2025, from the Second and Third Defendants.

And in my judgment, the Eight Issue must be answered in the affirmative. S/N g9zUvSXk90qrcH4S1xnrlA NINTH ISSUE: WHETHER THE SECOND AND THIRD DEFENDANTS ARE JOINTLY AND SEVERALLY LIABLE TO THE PLAINTIFFS Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that the evidence available before this Court justifies the lifting of the corporate veil between the Second and Third Defendants, as they are, in essence, a single entity. He further submitted that liability ought to be imposed on both Defendants pursuant to Section 188 of the Contracts Act 1950, to jointly compensate the Plaintiffs for the losses and damages suffered as a result of their untrue representation. He concluded saying that, on this basis, both Defendants should be held jointly and severally liable to the Plaintiffs for the DND Charges, inclusive of interest.

Learned counsel for the Second and Third Defendants asserted that there are no lawful grounds for the corporate veil between the two companies to be lifted. He contended that the Plaintiffs’ claim against the Third Defendant is unsustainable, as the Second Defendant had already admitted liability and no independent evidence was adduced against the Third Defendant. Being distinct legal entities, he argued, the Third Defendant cannot in law be held liable for the admissions or acts of the Second Defendant. S/N g9zUvSXk90qrcH4S1xnrlA

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs, which I find more compelling than that put forward for the Second and Third Defendants.

My reasons are these.

I have already found in the earlier segment of this judgment that the Second and Third Defendants were pretended agents of the First Defendant, their repeated and consistent untrue representations creating the false appearance of authority. By doing so, they held themselves out as agents and induced the Plaintiffs to act to their detriment.

(ii) Building upon that finding, I am satisfied that the Second and Third Defendants are jointly and severally liable for the DND Charges, inclusive of the contractual interest, based on three principal considerations:

Unified Untrue Representation

Although the Second and Third Defendants initiated separate Bookings, the evidence demonstrates a single, coordinated untrue representation. Both acted in concert to convey that they were agents of the First Defendant. That untrue representation was sustained, systematic, and calculated to induce reliance. S/N g9zUvSXk90qrcH4S1xnrlA

(ii) While the Second Defendant was identified as the Forwarding Agent in two Bookings, the Third Defendant assumed a pivotal role by submitting the Shipping Instructions for the Bookings. This precipitated the issuance of the Bills of Lading and reinforced the impression that the First Defendant had authorised all shipments. The division of functions does not detract from the unity of the untrue representation, but rather confirms the concerted manner in which both Defendants advanced the false appearance of acting for the First Defendant.

(iii) PW5, employed by the Second and Third Defendants, acted on the express instructions of Mr Koh Seng Yip who was at the material time the common director of both entities. Also, she corresponded with the Plaintiffs in a dual capacity for those dealings. Her testimony and the documentary trail demonstrate operational overlap indicative of collusion rather than coincidence.

(iv) The totality of the evidence persuades me that the Second and Third Defendants collectively conveyed the false impression of authorised agency. The liability flowing from such a jointly orchestrated untrue representation binds both Defendants together as participants in the same course of conduct. S/N g9zUvSXk90qrcH4S1xnrlA

Indivisible Operational Conduct The evidence before this Court demonstrates that the Second and Third Defendants exhibit a marked convergence in their corporate and operational structures. Stripped to its bare bone:

It is apparent that, although the Second and Third Defendants were registered with the Companies Commission of Malaysia as separate entities, they are closely intertwined, sharing a striking convergence in their corporate and operational features. They share:

the common registered address at 50-02-01 Lorong Batu Nilam 4A, Bandar Bukit Tinggi, 41200 Klang, Selangor, as evidenced by the the Companies Commission of Malaysia (SSM) searches of the Second and Third Defendants and corroborated by the email signatures used by PW5;

the common company telephone number, 603- 3324 6775 / 1154 / 4709, as seen in the email signatures used by PW5;

the common fax number, 603-3324 6440, likewise evident from PW5’s email signatures;

the common Operational Personal, Tan Jia Xin (PW5); S/N g9zUvSXk90qrcH4S1xnrlA

the common Director, Mr Koh Seng Yip; and

the common shareholder.

(ii) PW5’s evidence shows:

The operations of both the Second and Third Defendants were directed and controlled by Mr Koh Seng Yip, who determined the specific tasks PW5 was to perform in her dual employment with both companies.

All correspondence, including draft emails, required Mr Koh Seng Yip’s prior review and approval before transmission to clients, underscoring his direct oversight of both entities.

PW5 confirmed her concurrent employment with the Second and Third Defendants at all material times. This is substantiated by emails sent to the Second Plaintiff from the same address, jiaxiinn17299@hotmail.com, bearing interchangeable company signatures, reflecting the seamless integration of their operations.

(iii) PW3’s evidence shows:

Mr Koh Seng Yip has control over the Second and Third Defendants. S/N g9zUvSXk90qrcH4S1xnrlA

She recounted that Mr Koh Seng Yip instructed an employee at their registered address to reject service of Court documents addressed to both companies.

(iv) The SSM profile of the Second Defendant shows that it records no revenue and has insufficient assets to meet its current liabilities. As learned counsel for the Plaintiffs rightly put it, this raise concerns as to:

How the Second Defendant could afford to pay the salaries of PW5 (the Operational Personnel of the Second and Third Defendants) and Mok Kar Yi (the Company Secretary of the Second and Third Defendants), employees of both the Second and Third Defendants.

How the Second Defendant met the freight costs for the Bookings, as evidenced by proof of payment.

How the Second Defendant could plausibly share the costs of remuneration for its joint Counsel with the Third Defendant. The only reasonable conclusion to be drawn is that the Second and Third Defendants function as a single commercial entity, with Mr Koh Seng Yip exercising effective control over both companies. S/N g9zUvSXk90qrcH4S1xnrlA

Concealment of True Authority The evidence establishes a consistent pattern of misrepresentation and concealment by the Second and Third

Both Defendants presented themselves as authorised agents of the First Defendant, despite knowing that no such authority had been conferred. This pretence was maintained consistently across their communications and the four Booking Requests. The Plaintiffs, having no access to the underlying arrangement, were thereby induced to rely upon the false appearance of lawful agency.

(ii) The documentary record, particularly the correspondence and instructions channelled through PW5, reveals a systematic effort to obscure the actual source of authority. References to the First Defendant were used to lend legitimacy, while the absence of any direct verification was intentionally maintained. The suppression of material facts was not incidental but purposeful, designed to prevent discovery of the truth. Taken together, the conduct of the Second and Third Defendants was an orchestrated concealment of their want of authority, a deceit that both preceded and sustained the ensuing misrepresentation. The concealment was not limited to a false claim of agency but extended into the structure of S/N g9zUvSXk90qrcH4S1xnrlA their corporate existence. The manipulation of form and the masking of the true actors were parts of a single design that compel the Court to look beyond the façade of incorporation to the substance of control beneath. The Concealment of Control and the Lifting of the Corporate Veil

It is against this background of misrepresented authority that the broader pattern of concealment emerges. The same mind that orchestrated the false agency also animated the operation of both companies, using the corporate veil as an instrument of disguise.

Surveying the evidence in its entirety, I am compelled to look beyond the outer form of incorporation to discern the reality of control. What emerges is not two independent entities, but a single enterprise governed by one mind. The overlap in operations, personnel, and decision-making leaves no room for the fiction of separateness.

The evidence before me leaves no uncertainty as to that reality. It is clear that the First Defendant had never appointed either the Second or Third Defendant as its agent nor conferred any authority upon them to make the Bookings on its behalf. The record further reveals that both companies jointly advanced an untrue representation to the Plaintiffs, asserting such agency when none existed. The Third Defendant, in particular, played an active role in submitting two of the four Bookings and in forwarding the Shipping Instructions that gave rise to the Bills of Lading, thereby reinforcing the false appearance of authorisation. S/N g9zUvSXk90qrcH4S1xnrlA

PW5’s testimony confirms that both entities were operated under the common control of Mr Koh Seng Yip, with no genuine segregation of their affairs. The SSM profile of the Second Defendant discloses that it recorded no revenue and lacked the means to meet its liabilities. Its continued operation was sustained only through the resources of the Third Defendant, which served as its financial lifeline. From this I infer that Mr Koh Seng Yip maintained the Second Defendant as a façade to conceal the Third Defendant to avoid legal liability when wrongdoing arises.

The principle of separate legal personality stands at the heart of company law. Once incorporated, a company exists as a legal person distinct from those who own or manage it. I rely on Salomon v Salomon (1897) AC 22 for that settled proposition. Through this distinct personality, a company may hold property, enter contracts, conduct its affairs and bear its own liabilities.

Even so, company law provides no shelter for conduct founded on a dishonourable purpose. Where the corporate form is misused to conceal wrongdoing or to frustrate legitimate claims, the court retains the authority to lift or pierce the corporate veil to prevent abuse and uphold the integrity of the law. Previously, courts were inclined to use these two terms interchangeably but this was put to a stop by the Federal Court in the seminal decision of Ong Leong Chiou v Keller (M) Sdn Bhd [2021] MLJU 393; [2021] 4 CLJ 821. S/N g9zUvSXk90qrcH4S1xnrlA

Having analysed the UK Supreme Court’s decision in Prest v Petrodel [2013] UKSC 34 in great length, the Federal Court in Ong Leong Chiou held that it was necessary to maintain the distinction between “piercing” and “lifting” the corporate veil.

Following the Federal Court’s approach in Ong Leong Chiou, the distinction between the evasion principle and the concealment principle is highlighted as necessary for understanding the proper scope of each concept.

The Evasion Principle: Where a company is incorporated with the deliberate purpose of evading an existing legal obligation or frustrating enforcement of the law, the court is entitled to pierce the corporate veil. This involves disregarding the company’s separate legal personality to prevent the company or its controllers from gaining any benefit that would otherwise arise from that distinct legal status; and

The Concealment Principle: Where a company is exploited to conceal wrongdoing, the court is entitled to lift the corporate veil in order to ascertain the real actors behind the company’s structure.

With these principles distilled from the case of Ong Leong Chiou in mind, I am satisfied that this case is a textbook instance of concealment. The corporate form was employed to obscure the true unity of control and to create the illusion of separation where none existed. S/N g9zUvSXk90qrcH4S1xnrlA

The facts of the present case and the evidence before this Court justify lifting the corporate veil between the Second and Third Defendants, revealing that they constitute a single economic unit. Having untruly represented themselves as agents of the First Defendant, both the Second and Third Defendants are jointly and severally liable for the DND Charges, inclusive of contractual interest, pursuant to Section 188 of the Contracts Act 1950.

Accordingly, I reject the submission advanced for the Second and Third Defendants that the Second Defendant’s admission of liability absolves the Third Defendant on the basis of their separate legal personalities. Their actions were in concert, their purpose shared, and their liability indivisible.

In the course of my consideration, I have been struck by a particular incongruity arising from the submission of learned counsel for the Second and Third Defendants. He contended that the Second Defendant had admitted to being the party liable for the Plaintiffs’ claim. For clarity, I reproduce below the relevant excerpt of the submission: “3.1. Yip Fong (the Second Defendant) was solely responsible for the charges, as expressly admitted in the pleadings. …

6.2.3 Yip Fong (the Second Defendant) does not deny liability S/N g9zUvSXk90qrcH4S1xnrlA and/or involvement. …

14.5.1 At all material times, Yip Fong (the Second Defendant) has admitted that they are the liable party. …

14.7.1. Again, the Defendants concede Yip Fong (the Second Defendant) is liable.”

From my assessment, this is the first instance in which a different position has been taken, wherein the Second Defendant has, for the first time, shifted its stance and admitted liability in respect of the Plaintiffs’ claim. I find this shift both curious and telling for the following reasons:

As is strikingly apparent, that stance stands in clear contradiction to the Second and Third Defendants’ Statement of Defence, wherein the Second Defendant merely admitted to being the booking party and to having furnished the Plaintiffs with the booking information (see: Paragraph 10 of the Second and Third Defendants’ Statement of Defence).

(ii) At no point in the pleadings or during trial did the Second Defendant plead or acknowledge any legal responsibility. Its role was consistently limited to being the booking party and providing booking information, without any admission of liability. S/N g9zUvSXk90qrcH4S1xnrlA

(iii) What emerges is a discernible reversal in position, one that diverges from the stance consistently maintained by the Second and Third Defendants throughout the trial.

(iv) There is, in consequence, an evident discord between what the Second and Third Defendants earlier pleaded and what the Second Defendant is now belatedly owning. Preclusion from Approbating and Reprobating

At the risk of stating the obvious, the position taken by and for the Second Defendant was irreconcilably inconsistent. In my respectful view, its stance oscillated between contradictory alternatives. It is apparent that the positions advanced amount to blowing hot and cold, forming a confounding mix of inconsistencies. Faced with such ambivalence, it cannot approbate and reprobate in the same breath, nor can it claim the benefit of both narratives by advancing mutually contradictory positions. Support for this principle is found in the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers PLC v. News (UK) Ltd and Others [1990] 3 All ER 376, wherein it was observed: “…A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back…”, and the words of Mohd Nazlan Ghazali JC (now JCA) in the case of Bakti Dinamik Sdn Bhd V. Bauer (Malaysia) Sdn Bhd [2016] MLJU 916; [2016] 10 CLJ 247, wherein it was observed, “The position taken by the plaintiff on this point may thus be characterised as one which violates the principle against 'approbating and reprobating'. In the Court of Appeal case of Visage Continental Sdn S/N g9zUvSXk90qrcH4S1xnrlA Bhd v. Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair.” (See also: Boustead Trading Sdn Bhd v. Arab Malaysia Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283; and Development & Commercial Bank Berhad v. Aspatra Corporation Sdn Bhd & Anor [1996] 1 CLJ 141).

Reverting to the belated liability admission directly in concern, I observe that both the Second and Third Defendants are represented by the same counsel. Such reversal, emanating from a single legal voice, cannot be dismissed as a mere oversight. In that light, I regard the shift in position as notable in both its timing and tenor. Mindful of these inconsistencies, I find force in the argument advanced for the Plaintiffs that the shift “… has undoubtedly caught the Plaintiffs off guard and gives the impression that the admission is a last-minute attempt to shield D3 from any potential legal repercussions”. Having considered the overall conduct, I find the argument not without merit. The reversal was not an act of candour, but a calculated manoeuvre designed to distance the Third Defendant from the web of liability that had by then become unavoidable. Taken in its full context, the belated admission cannot be regarded as an innocent shift in position. It discloses a calculated stratagem reflective of fraudulent intent. S/N g9zUvSXk90qrcH4S1xnrlA

On the balance of probabilities, I find that the Second and Third Defendants are jointly and severally liable to the Plaintiffs.

And in my judgment, the Ninth Issue must be answered in the affirmative. S/N g9zUvSXk90qrcH4S1xnrlA TENTH ISSUE: WHETHER THE SECOND AND THIRD DEFENDANTS’ MOVE TO RAISE AFFIRMATIVE CASES AND NEW FACTUAL ASSERTIONS CONSTITUTES A PROCEDURAL DEPARTURE FROM THE PLEADED CASE Opposing contentions in brief

Learned counsel for the Plaintiffs submitted that, following the Court of Appeal’s decision in Fanuc Sdn Bhd v Adenland (Cheras) Sdn Bhd & Anor [2021] MLJU 2309; [2021] 1 LNS 1904, the Defendants were not entitled to advance affirmative cases and new factual assertions not pleaded in their Defence. Parties are bound by their pleadings and cannot adduce unpleaded facts or issues. He argued that the new matters raised in the Defendants’ written submissions ought therefore to be disregarded as improperly raised and without merit.

Learned counsel for the Second and Third Defendants made no submission on this issue. As appears from the record, however, learned counsel for the Second and Third Defendants raised several affirmative cases and new factual assertions in their written submissions, which go beyond the pleaded case and were never formally pleaded. He submitted extensively on issues that were introduced for the first time in written submissions rather than in the pleaded case. S/N g9zUvSXk90qrcH4S1xnrlA

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiffs, which I find more compelling than that put forward for the Second and Third Defendants.

My reasons are these:

What emerged before me during trial revealed a marked shift. In my observation, through cross-examination, the Second and Third Defendants sought to advance affirmative cases and new factual assertions they had not previously pleaded in their Defence. They include:

that the Second Plaintiff lacked standing to sue;

that the information regarding the Bookings was allegedly ‘created’ by the First Plaintiff;

that the Plaintiffs were uncertain of the identities behind the booking documents;

that any computer-generated documents were received without verification;

that errors existed in the Plaintiffs’ system, which incorrectly indicated the Third Defendant as one of the booking parties;

that the Second Plaintiff’s representatives had no personal knowledge of whether the cargoes were actually shipped from Port Klang, Malaysia, and arrived at Hai Phong Port, Vietnam; and S/N g9zUvSXk90qrcH4S1xnrlA

that the cargoes were never left uncollected at Hai Phong Port, Vietnam.

(ii) On scrutiny of the Defence, I discern no foundation for the preceding affirmative cases and new factual assertions. To my mind, the pleading was evasive in posture and bare denial without any affirmative defence, falling short of the candour that proper pleading demands. They are manifest, among others, in three distinct respects:

On the issue of agency between the Plaintiffs as pleaded in paragraphs 1 and 2 of the Amended Statement of Claim, the Second and Third Defendants asserted that they “tidak mempunyai pengetahuan berkenaan dengan Perenggan 1 dan 2 SOC” and that the Plaintiffs “harus membuktikan bahawa mereka layak untuk bertindak dan/atau menawarkan perkhidmatan sepertimana diplidkan.”

On the issue of bookings and acknowledgments through Plaintiffs’ online platform as pleaded in paragraph 4 of the Amendment Statement of Claim, the Second and Third Defendants denied the Third Defendant’s involvement and asserted that the Plaintiffs “…diletakkan atas beban bukti yang kukuh untuk membuktikannya”. S/N g9zUvSXk90qrcH4S1xnrlA

On the issue of uncollected cargoes as pleaded in paragraphs 10A to 10F of the Amended Statement of Claim, the Second and Third Defendants simply labelled it as “…tidak relevan kepada Defendan-Defendan” and asserted that the Plaintiffs “…diletakkan atas beban bukti yang kukuh untuk membuktikan penegasan mereka.”

(iii) The Court of Appeal in Fanuc Sdn Bhd established that a defendant who pleads only bare denials and put a plaintiff to strict proof cannot later raise a new affirmative case during cross-examination. The Court observed: “[29] The defence that was filed on behalf of D1 deserves some comment at this juncture. In response to the matters alluded to in the Statement of Claim the defence was mostly one of “denial”, “no knowledge” and/or “put to strict proof”. D1 did not plead any affirmative defence. The questions during cross-examination of PW2 which suggested that the plaintiff had given their consent should not have been allowed at all. Indeed, it is trite that a defendant is not entitled to pursue a defence which has not been pleaded. [30] In the Court of Appeal decision of Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v. Capital Insurance Bhd and another appeal [2004] 1 CLJ 357 (CA); [2004] 1 MLJ 353; [2004] 1 AMR 333, Gopal Sri Ram JCA (as his Lordship then was) said at pp. 365-366: S/N g9zUvSXk90qrcH4S1xnrlA “[19] Now, it is a cardinal rule of pleading that a defendant to an action for breach of duty - whether in contract or tort - may properly deny liability and require the plaintiff to prove his or her claim. But once a defendant takes that course, he must stand or fall on his pleaded case. He cannot simultaneously put forward an unpleaded case of justification for his conduct.” [31] It is also relevant to hearken to Justice Gopal Sri Ram’s reference to the quotation by Lord Evershed MR in Regina Fur Co Ltd v. Bossom [1958] 2 Lloyd’s Rep 425 (CA), who said at p. 428: I think that a defendant - whether he is an underwriter or any other kind of defendant - is entitled to say, by way of defence, ‘I require this case to be strictly proved, and admit nothing’. Where such is the defence, the onus remains throughout upon the plaintiff’s to establish the case they are alleging. Where such is the form of the pleading, it is not only not obligatory upon the defendants but it is not even permissible for them to proceed to put forward some affirmative case which they have not pleaded or alleged: and it is not therefore, right that they should, by cross-examination of the plaintiff’s or otherwise, suggest such an affirmative case…” (Emphasis added)

(iv) By the force of the principle established in Fanuc Sdn Bhd, the Second and Third Defendants cannot belatedly advance affirmative cases, as these were never pleaded in their Defence. To do so now would contravene that principle, which confines parties to the four corners of their pleadings. Their S/N g9zUvSXk90qrcH4S1xnrlA Defence, I emphasise, rests on evasions and bare denials rather than any coherent counter-narrative.

Addedly, the Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1; [2015] 8 CLJ 944 establishes that “It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded.”

(vi) In this light, the Second and Third Defendants’ Defence, founded entirely on denial and disclaimer, cannot be invoked to justify an attempt to ambush the Plaintiffs with unpleaded affirmative cases at trial. They must be held to their pleadings. The belated assertions collapse both procedurally and substantively, being contrary to the rule in Fanuc Sdn Bhd that confines parties to the four corners of their pleadings.

(vii) The purpose of pleadings is to ensure fairness and avoid surprise. The Second and Third Defendants, having based their Defence on mere denials, must accept the limits of that choice. As HRH Raja Azlan Shah CJ (as HRH then was) observed in KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10; [1980] CLJU 169: “As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the Defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be a great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.” S/N g9zUvSXk90qrcH4S1xnrlA

On the whole, I am constrained to decline entertaining the unpleaded affirmative cases and any new factual assertions which they have not pleaded or alleged. They are impermissible, unanchored in fact, and have no warrant to reshape the evidentiary landscape at this stage. The combined force of Fanuc Sdn Bhd, Samuel Naik Siang Ting and KEP Mohamed Ali affirms that pleadings define the boundaries of a case, and any departure from them is procedurally impermissible and undermines the fairness and certainty that justice requires.

On the balance of probabilities, I find that the Second and Third Defendants’ move to raise affirmative cases and new factual assertions which they have not pleaded or alleged constitutes a procedural departure from the pleaded case, and is therefore disregarded.

And in my judgment, the Ninth Issue must be answered in the affirmative. S/N g9zUvSXk90qrcH4S1xnrlA

Before turning to the conclusions, I note that all witnesses who testified during these proceedings were carefully observed, and their demeanour and evidence considered in their entirety (see: Ah Mee v. Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3). While minor discrepancies were apparent, I find that they do not diminish the weight of the testimony (see: PP v. Datuk Hj Harun Bin Hj Idris (No.2) [1977] 1 LNS 92; [1977] 1 MLJ 105). In my judgment, all witnesses were credible, and their evidence has been given due regard for consistency, reliability, and the circumstances in which it was delivered.

Having evaluated the totality of the evidence before me, I find on a balance of probabilities that:

The First Defendant cannot be held liable for the DND charges and contractual interest arising from arrangements of which it had no knowledge, to which it was not bound, and over which it exercised no control or authority. Accordingly, the Plaintiffs’ claim against the First Defendant is dismissed.

(ii) The Plaintiffs have established their claim against the Second and Third Defendants. I, therefore, allow the Plaintiffs’ claims against the Second and Third Defendants, and adjudge that:

The Second and Third Defendants have untruly represented themselves to be the authorised agents of the First Defendant to the Plaintiffs. S/N g9zUvSXk90qrcH4S1xnrlA

The Second and Third Defendants have misrepresented themselves as the agents of the First Defendant and/or have committed fraud by making the bookings bearing the numbers COAU7120742820, COAU7120743010, COAU7120736930, and COAU7120739970 (“Bookings”) on behalf of the First Defendant with the Plaintiffs.

The Second and Third Defendants are jointly and severally liable to the Plaintiffs for the damages incurred under the Bills of lading bearing the numbers COAU7120742820, COAU7120743010, COAU7120736930, and COAU7120739970 issued following the Bookings made by the Second and Third Defendants.

The Second and Third Defendants are to jointly and severally pay the Plaintiffs the sum of RM556,706.16, being the principal sum payable under Invoices No. M7120743010, M7120736930 and M7120739970.

The Second and Third Defendants are to jointly and severally pay the Plaintiffs the contractual interest on the sum of RM556,706.16 at the daily rate of 0.1% fourteen

days from 28 October 2021 until the date of this Judgment, i.e. on 30 July 2025. S/N g9zUvSXk90qrcH4S1xnrlA

The Second and Third Defendants are to jointly and severally pay the Plaintiffs the judgment interest at the rate of 5% per annum on the sum of RM556,706.16 from the date of this Judgment, i.e. on 30 July 2025, until the date of full and final settlement by the Second and Third Defendants pursuant to Section 11 of the Civil Law Act 1956 and Order 42 rule 12 of the Rules of Court 2012.

Damages to be assessed.

Costs in the sum of RM25,000.00 to be paid by the Second and Third Defendants. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Klang, Selangor 14 November 2025 S/N g9zUvSXk90qrcH4S1xnrlA PARTIES Counsel for the Plaintiffs : Lionel Noel Tan Hui Ling Ng May Solicitors for the Plaintiffs : Messrs. T S Oon & Partners A-18-09 & A-18-10 Menara UOA Bangsar No 5, Jalan Bangsar Utama 1 59000 Kuala Lumpur Counsel for the First Defendant : Low Henn Kai Solicitors for the First Defendant : Messrs. Kuek Ong & Associates No. 86-1, Jalan Mahogani 1 Bandar Botanik 41200 Klang Selangor Counsel for the Second & Third Defendants : James Au Wei-Wern Solicitors for the Second & Third Defendants : Messrs. Au & Partners No. 63A, Jalan SS 22/23 47400, Petaling Jaya Selangor S/N g9zUvSXk90qrcH4S1xnrlA