Ngan Ching Woo v Syed Sazlee Bin Syed Hamzah (WA-22NCC-319-07/2022)

SYED SAZLEE BIN SYED HAMZAH (NRIC NO: 610926-02-5059) (FOR HIMSELF AND AS THE APPOINTED REPRESENTATIVE OF THE LATE DATO’ SYED HAMZAH BIN SYED ABU BAKAR,

COMPANIES COMMISSION OF

KHOO KIAM CHONG (NRIC NO: 560731-06-5189) ...DEFENDANTS (To be heard together) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CIVIL SUIT NO: WA-22NCC-319-07/2022 S/N 1PzIjDqt0UOefhwlhrzh8g

NGAN CHING WOO

AT MASTERS SDN. BHD. (COMPANY NO: 233825-D) …PLAINTIFFS

SYED SAZLEE BIN SYED HAMZAH (NRIC NO: 610926-02-5059) (AS REPRESENTATIVE OF DATO'

BAKAR, DECEASED) KHOO KIAM CHONG

SYARIKAT MALAYSIA PUNCAK KENANGAN (M) SDN BHD (COMPANY NO: 223905-W) …DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] Before the Court are two suits heard together which raise profound questions concerning the integrity of judicial S/N 1PzIjDqt0UOefhwlhrzh8g processes and the limits of consensual resolution of disputes. The Plaintiffs in both suits seek to impeach a consent order obtained in earlier proceedings, alleging that it was procured through fraud, deliberate concealment of material facts, and champertous arrangements, and that it was entered into in circumstances where one party lacked the mental capacity to give informed consent. At the heart of these proceedings lies the fundamental principle that fraud unravels everything, and that no party should be permitted to benefit from their own wrongdoing or from agreements that are contrary to public policy and the proper administration of justice. [2] The Court must determine several critical issues. First, whether the impugned consent order was obtained through fraud and deliberate suppression of material facts, including the concealment of prior litigation and the true state of the underlying disputes. Second, whether one of the parties to that consent order possessed the requisite mental capacity to understand and consent to its terms, or whether that party was suffering from such mental infirmity as to vitiate their consent. Third, whether the arrangements underlying the consent order were tainted by champerty and maintenance, rendering them void and contrary to public policy under Section 24(e) of the Contracts Act

Fourth, whether the entire process constituted an abuse of the court’s process and a breach of the principles of natural justice. The resolution of these issues will S/N 1PzIjDqt0UOefhwlhrzh8g determine not only the fate of the impugned consent order, but also the proper approach to ensuring that the machinery of justice is not used as an instrument of fraud or oppression. SUIT 221: BACKGROUND FACTS [3] The Plaintiff, Puncak Kenangan (M) Sdn Bhd (“Puncak Kenangan”), was incorporated on 16.5.1968 as a private limited company under the Companies Act 1965. At incorporation, Puncak Kenangan had two shareholders: Dato’ Syed Mustaffa bin Syed Abdullah Shahabuddin (“Syed Mustaffa”) and Dato’ Syed Hamzah bin Syed Abu Bakar, who is now deceased (“Syed Hamzah”), each holding one ordinary share of RM1.00. [4] Puncak Kenangan held shares in another company, Sitrac Corporation Sdn Bhd (“Sitrac”). On 17.2.1992, Sitrac allotted shares such that Puncak Kenangan held 325,000 shares, Kelana Jati Sdn Bhd (“Kelana Jati”) held 50,000 shares, Shafakat Sdn Bhd (“Shafakat”) held 25,000 shares, and Syed Mustaffa held 49,997 shares. [5] On 17.4.1992, three share sale agreements were executed. The first was between Puncak Kenangan and Kelana Jati for the sale of 75,000 shares in Sitrac for a consideration of RM500,000.00, with completion on 31.5.1992. The second was between Syed Mustaffa and S/N 1PzIjDqt0UOefhwlhrzh8g Kelana Jati for the sale of 50,000 shares in Sitrac for RM1,000,000.00, with completion on 31.10.1992. The third was between Shafakat and Kelana Jati for the sale of 75,000 shares in Sitrac for RM1,000,000.00, with completion on 31.10.1992. [6] On 21.4.1992, four days after the execution of these agreements, a circular resolution of the directors of Sitrac appointed Ngan Ching Woo (“Ngan”) and Lo Jian Hooi as directors. This resolution was signed by Syed Mustaffa, Datuk Dr. Ridzwan bin Abu Bakar, Dato’ Baharuddin Musa and Syed Hamzah. [7] On 6.1.1993, Puncak Kenangan allotted 50,000 ordinary shares of RM1.00 each. The allottees were: Shafakat (25,000 shares), Munsol bin Mohammad Noor (“Munsol”) (15,000 shares), Syed Hamzah (5,000 shares), and Datin Adib Yasmin Aman (“Adib”) (5,000 shares). Prior to this allotment, the total issued share capital of Puncak Kenangan was 2 shares. Following the allotment, the total issued share capital increased to 50,002 shares. [8] On 10.12.1992, a Board of Directors’ meeting of Puncak Kenangan was held, chaired by Syed Hamzah, where the directors resolved to hold an Extraordinary General Meeting to approve the allotment of 50,000 shares. S/N 1PzIjDqt0UOefhwlhrzh8g [9] On 6.1.1993, an Extraordinary General Meeting was held where members of Puncak Kenangan approved the resolution to allot the 50,000 shares. The minutes of this meeting were signed by Syed Hamzah. [10] On 16.8.1993, Syed Hamzah, as director of Puncak Kenangan, together with Munsol, who was also the company secretary, signed Form 24 (Return of Allotment of Shares) confirming that the allotment took the form of a cash allotment to the named allottees. [11] Over subsequent years, Syed Hamzah signed various resolutions approving transfers of these allotted shares: on 5.8.1993 approving transfer of 10,000 shares from Shafakat to AT Masters Sdn Bhd (“AT Masters”); on 24.6.1994 approving transfer of 5,000 shares from Shafakat to AT Masters; in September 1994 approving transfer of 10,000 shares from Munsol to Adib; and on 12.1.1996 approving transfer of 12,498 shares from AT Masters to Shafakat. [12] On 12.7.1994, Syed Hamzah entered into a loan agreement with Ngan for RM200,000.00, pledging his 5,000 shares in Puncak Kenangan as security. On 15.12.1994, a supplementary loan agreement for a further RM100,000.00 was entered into. Syed Hamzah failed to repay these loans, and consequently his 5,000 shares in S/N 1PzIjDqt0UOefhwlhrzh8g Puncak Kenangan were transferred to Ngan and/or AT Masters pursuant to the loan agreements. [13] Earlier, in 1992, Khoo Kiam Chong (“Khoo”) had filed Suit No. D2-22-1507-1992 (“Suit 1507”) seeking rectification of Sitrac’s share register, claiming a 23% beneficial interest. This claim was dismissed by the High Court in 2011 and his appeals to the Court of Appeal and application for leave to appeal to the Federal Court were likewise dismissed with costs. [14] On 17.8.2006, Syed Hamzah lodged his first complaint with SSM seeking rectification of Puncak Kenangan’s register of members, alleging that the 1993 allotment was without consideration or alternatively that the consideration came from an unauthorised sale of 75,000 Sitrac shares. This complaint was investigated by the 2nd Defendant, Suruhanjaya Syarikat Malaysia (“SSM”). [15] On 13.5.2016, Syed Hamzah executed a Declaration of Trust (“Declaration of Trust”) in favour of Khoo. The Declaration stated: “In consideration of KKC (Khoo) having provided and continue to provide assistance/services to me, DSH (Syed Hamzah), I, DSH hereby undertakes covenants and agrees to grant to KKC an irrevocable power of attorney to KKC to prosecute S/N 1PzIjDqt0UOefhwlhrzh8g the actions on my behalf and receive the proceeds and/or damages on my behalf. And who will distribute 52.5% to me and to my estate in event of my demise.” [16] On 19.5.2016, Syed Hamzah executed an Irrevocable Power of Attorney (“Power of Attorney”) appointing Khoo as his attorney with power to prosecute legal actions on his behalf. [17] On 26.4.2018, pursuant to Section 602 of the Companies Act 2016, Syed Hamzah filed applications with SSM seeking rectification of Puncak Kenangan’s register of members (“Rectification Application”). [18] On 20.9.2018, SSM refused the applications under Section 602(1) of the Companies Act 2016. [19] On 19.3.2019, Syed Hamzah filed Originating Summons No. WA-24NCC-131-03/2019 (“OS 131”) appealing against SSM’s refusal to rectify the register of Sitrac. The relief sought was for SSM to reconsider his application dated 26.4.2018 under Section 602(1) of the Companies Act 2016, with notice to be given to Sitrac, Puncak Kenangan and Kelana Jati. [20] On 21.3.2019, Syed Hamzah filed OS 142, again appealing against SSM’s refusal of his Section 602 application, this S/N 1PzIjDqt0UOefhwlhrzh8g time concerning Puncak Kenangan’s register of members. The Originating Summons and supporting affidavit made no mention of: a) Syed Hamzah’s role as Chairman and Director of Puncak Kenangan in 1992-1993; b) his participation in approving the allotment of the 50,000 shares; c) his receipt of 5,000 shares from the allotment; d) his approval of Form 24 on 16.8.1993; e) his subsequent pledging and ultimate transfer of his 5,000 shares to Ngan; f) his approval of the transfer of the 75,000 Sitrac shares; g) the dismissal of Khoo’s Suit 1507; h) his previous complaint to SSM in 2006; i) the existence of OS 131 and the order made therein; j) the Declaration of Trust dated 13.5.2016; S/N 1PzIjDqt0UOefhwlhrzh8g k) the Power of Attorney dated 19.5.2016; or l) any concerns about his mental capacity. [21] On 21.5.2019, Wong Chee Lin J made an order in OS 131 directing SSM to reconsider Syed Hamzah’s application and requiring him to give notice to Sitrac, Puncak Kenangan and Kelana Jati. [22] On 18.6.2019, solicitors for Syed Hamzah, Messrs Thomas Philip, wrote to the Secretary of the High Court Judge handling OS 142, Azizul Azmi bin Adnan J, informing the Court that the parties had agreed to enter into a consent order for OS 142 on 20.6.2019. The letter stated that a similar order had been entered between the parties in OS 131 regarding related facts but concerning a different company. [23] On 20.6.2019, a Consent Order (“the Consent Order”) was recorded in OS 142 between Syed Hamzah and SSM. The terms mirrored the nature of the order made in OS 131, directing SSM to reconsider Syed Hamzah’s application and requiring notice to be given to Puncak Kenangan and all its existing and previous shareholders. [24] On 6.11.2019, Sitrac and Kelana Jati filed Civil Suit No. WA-22NCC-623-11/2019 (“Suit 623”) against Syed Hamzah, the Registrar of Companies, and Puncak S/N 1PzIjDqt0UOefhwlhrzh8g Kenangan to impugn and set aside the High Court Order dated 21.5.2019 obtained in OS 131. The plaintiffs alleged that the order was procured through fraud and the deliberate concealment of material facts by Syed Hamzah, specifically regarding his failure to disclose that he had personally signed resolutions authorizing the share transfer he was challenging. [25] On 26.2.2021, Syed Hamzah executed an Agreement for Shares (“Agreement for Shares”) with Khoo, setting out in detail the share arrangement contemplated in the Declaration of Trust. Under this agreement, it was acknowledged that Khoo had a potential claim for 23% of Sitrac shares. It was agreed that if Khoo decided not to proceed with this claim, Syed Hamzah would allocate 12.5% of his shares in Puncak Kenangan (representing 23.75% of the total shareholding) to Khoo. [26] On 5.4.2021, during the trial of Suit 623, Syed Hamzah was declared unfit to testify due to his mental condition. On 18.7.2021, Syed Hamzah passed away. [27] On 18.10.2021, Liza Chan Sow Keng J delivered judgment in Suit 623, declaring that the order dated 21.5.2019 in OS 131 was obtained by fraud and/or dishonesty by Syed Hamzah, and impeached and set aside both the order and OS 131 itself in their entirety. This decision which was later affirmed by the Court of Appeal on 13.9.2022. S/N 1PzIjDqt0UOefhwlhrzh8g [28] On 4.8.2021, the 1st Defendant, Syed Sazlee bin Syed Hamzah (“Syed Sazlee”), as legal personal representative of Syed Hamzah’s estate, filed an application for grant of probate. Exhibited in that application was the Agreement for Shares dated 26.2.2021. [29] On 25.5.2022, Puncak Kenangan filed Suit 221, seeking to impeach the Consent Order dated 20.6.2019 in OS 142 on the grounds that it was obtained by fraud, collusion, deception and/or deliberate concealment of material facts, and that OS 142 was instituted pursuant to champertous arrangements contrary to public policy. SUIT 319: BACKGROUND FACTS [30] The background facts relevant to Suit 319 substantially overlap with those set out above for Suit 221. The key difference lies in the Plaintiffs and the specific relief sought. [31] The 1st Plaintiff, Ngan, as stated above, became involved with Puncak Kenangan and Sitrac in the early 1990s. On 21.4.1992, he was appointed a director of Sitrac. Through Kelana Jati (in which his family company, Palks Holdings Sdn Bhd, is a controlling shareholder), he acquired shares in Sitrac from Puncak Kenangan, Syed Mustaffa and Shafakat pursuant to the agreements dated 17.4.1992. S/N 1PzIjDqt0UOefhwlhrzh8g [32] The 2nd Plaintiff, AT Masters, acquired shares in Puncak Kenangan through various transfers approved by Syed Hamzah between 1993 and 1996, as described above. As noted, Syed Hamzah’s 5,000 shares in Puncak Kenangan were ultimately transferred to Ngan and/or AT Masters following his default on the loan agreements. [33] Lisa Ngan, daughter of Ngan, is currently a director of Puncak Kenangan. [34] In Suit 319, the Defendants are: (1) Syed Sazlee as representative of Syed Hamzah’s estate; (2) Khoo; (3) SSM; and (4) Puncak Kenangan. [35] Like Suit 221, Suit 319 seeks to impeach the Consent Order in OS 142 on grounds of fraud, deliberate concealment, and champerty. However, Suit 319 additionally seeks declaratory relief that the actions of Syed Hamzah and Khoo in filing OS 142 and obtaining the Consent Order were pursuant to champertous and usurious arrangements and therefore tainted with illegality and bad faith, amounting to an abuse of process. [36] The material facts, documentary evidence, and chronology of events are substantially similar to those in Suit 221, with the Plaintiffs in Suit 319 seeking relief as parties directly affected by the Consent Order and the underlying proceedings. S/N 1PzIjDqt0UOefhwlhrzh8g SUIT 221: RESPECTIVE PARTIES’ PLEADED CASE AND RELIEFS SOUGHT Puncak Kenangan’s Case [37] Puncak Kenangan pleads that the Consent Order dated 20.6.2019 in OS 142 is a nullity, having been procured by fraud, collusion, deception and/or deliberate concealment of material facts on the part of Syed Hamzah. [38] Puncak Kenangan further pleads that OS 142 was instituted and brought pursuant to champertous arrangements contrary to public policy, being unlawful and forbidden by law. [39] The material facts allegedly concealed include: Syed Hamzah’s role as Chairman and Director of Puncak Kenangan during the 1993 allotment; his approval of the allotment; his receipt of 5,000 shares from the allotment; his approval of Form 24 on 16.8.1993; his pledging and transfer of shares to Ngan; his approval of the transfer of 75,000 Sitrac shares; the dismissal of Khoo’s Suit 1507; his prior complaint to SSM in 2006; the existence and outcome of OS 131; the Declaration of Trust dated 13.5.2016; the Power of Attorney dated 19.5.2016; and concerns about his mental capacity. S/N 1PzIjDqt0UOefhwlhrzh8g [40] Puncak Kenangan contends that the Declaration of Trust, Power of Attorney, and Agreement for Shares are champerty agreements and champertous instruments in furtherance of unlawful acts by Syed Hamzah, Syed Sazlee and Khoo. [41] Puncak Kenangan pleads that Syed Sazlee was privy to the champertous arrangements and facilitated both the champerty and OS 142. [42] The reliefs sought by Puncak Kenangan are: a) a declaration that the Consent Order was obtained by fraud and/or dishonesty; b) that the Consent Order be impeached and set aside in its entirety; c) that OS 142 be struck off and set aside in totality; d) assessment of damages; e) interest; f) costs; and g) such further relief as the Court deems fit. S/N 1PzIjDqt0UOefhwlhrzh8g Syed Sazlee and Khoo’s Case [43] Syed Sazlee and Khoo deny that the Consent Order was procured by fraud or deliberate concealment. They contend that the Consent Order merely directed SSM to reconsider Syed Hamzah’s application with notice to interested parties, and was not a final order determining substantive rights. [44] They plead that the complaints raised in OS 131 and OS 142 are distinct. OS 142 concerned Syed Hamzah’s appeal under Section 602(4) of the Companies Act 2016 against SSM’s refusal to investigate his complaints regarding the allotment of 50,000 shares in Puncak Kenangan, which he alleged was issued without consideration or, alternatively, was financed by the proceeds from an unauthorised sale of 75,000 Sitrac shares. [45] They contend that Syed Hamzah had the requisite mental capacity to conduct proceedings when OS 131 and OS 142 were filed, and that evidence of his mental condition only emerged later in 2021. [46] They deny that the Declaration of Trust, Power of Attorney and Agreement for Shares constitute champertous arrangements. They plead that Khoo is not a stranger to the proceedings but has legitimate interest as a beneficiary under the Declaration of Trust, an attorney under the S/N 1PzIjDqt0UOefhwlhrzh8g Power of Attorney, and a party to the Agreement for Shares. [47] They contend that matters relating to the validity of the 1993 allotment, the transfer of Sitrac shares, and related corporate transactions are only relevant at the substantive hearing before SSM pursuant to the Consent Order, and that raising such matters at this preliminary stage is premature. [48] They plead that the present proceedings are an abuse of process, overlapping with issues that could or should have been raised in previous proceedings including Suit 623 and Suit No. WA-22NCC-474-09/2020 (“Suit 474”). [49] Suit 474 concerns a legal action filed by Puncak Kenangan and Syed Mustaffa against Syed Hamzah and Khoo seeking damages for the tort of conspiracy and abuse of court process regarding the filing of the Rectification Application and OS 142. Originally commenced as Suit 649 in 2017 before being reinstated as Suit 474 in 2020, the High Court dismissed the claim on 14.7.2022. [50] They seek dismissal of Puncak Kenangan’s claim with costs. S/N 1PzIjDqt0UOefhwlhrzh8g SSM’s Case [51] SSM pleads that it is a nominal party in the proceedings, having taken a neutral stance throughout. [52] SSM neither admits nor denies the substantive allegations, leaving the Court to determine the issues. [53] SSM seeks an order that it be entitled to costs or, alternatively, that no order for costs be made against it. SUIT 319: RESPECTIVE PARTIES’ PLEADED CASE AND RELIEFS SOUGHT Ngan and AT Masters’ Case [54] The Plaintiffs in Suit 319, Ngan and AT Masters, advance substantially similar grounds to those pleaded by Puncak Kenangan in Suit 221, namely that the Consent Order was obtained by fraud, deception, non-disclosure and/or deliberate concealment of material facts, and that OS 142 was instituted pursuant to champertous arrangements. [55] Ngan and AT Masters emphasise that Syed Hamzah deliberately perpetrated the impression that the 50,000 shares were allotted without his knowledge or approval, that the sale of 75,000 Sitrac shares was unauthorised, and that he was acting alone with no influence from others. S/N 1PzIjDqt0UOefhwlhrzh8g [56] The material facts allegedly concealed are identical to those pleaded in Suit 221, including Syed Hamzah’s involvement in the allotment, his receipt of shares, his approval of corporate resolutions, the failed Suit 1507 by Khoo, the prior OS 131 proceedings, and the existence of the champertous agreements. [57] Ngan and AT Masters specifically plead that Khoo’s involvement through the Declaration of Trust, Power of Attorney and Agreement for Shares demonstrates a champertous arrangement whereby Khoo, a stranger to the proceedings with no legitimate interest in Puncak Kenangan, would receive a share of any proceeds contingent upon the outcome of litigation. [58] Ngan and AT Masters contend that if the allotment were cancelled, the share structure would revert to the original 1:1 position, and Khoo would receive 47.5% of Syed Hamzah’s 50% shareholding, translating to 23.75% of the total, effectively achieving through champerty what he failed to obtain through litigation in his dismissed Suit 1507. [59] The reliefs sought by Ngan and AT Masters are: a) a declaration that the Consent Order was obtained by fraud and/or dishonesty by Syed Hamzah and/or Khoo; S/N 1PzIjDqt0UOefhwlhrzh8g b) that the Consent Order be impeached and set aside in totality; c) that OS 142 be struck off and set aside in totality; d) a declaration that Syed Hamzah’s and Khoo’s actions in filing OS 142 and obtaining the Consent Order were pursuant to champertous and usurious arrangements and are therefore tainted with illegality and bad faith, amounting to an abuse of process; e) assessment of damages; f) interest; g) costs; and h) such further relief as the Court deems fit. Syed Sazlee and Khoo’s Case [60] Syed Sazlee and Khoo advance defences substantially similar to those in Suit 221. [61] They additionally plead that the present suit is barred by res judicata, contending that the issues raised could and should have been raised in Suit 474 and/or Suit 623. S/N 1PzIjDqt0UOefhwlhrzh8g [62] They contend that Suit 623 concerned OS 131 and fraud relating to Sitrac’s register, whereas the present suit concerns OS 142 and Puncak Kenangan’s register, making the causes of action and subject matter distinct. [63] They plead that the Agreement for Shares is a legitimate arrangement between Syed Hamzah and Khoo concerning Syed Hamzah’s own shares, and does not constitute champerty. [64] They seek dismissal of Ngan and AT Masters’ claim with costs. SSM’s Case [65] SSM’s position in Suit 319 is identical to its position in Suit 221: it is a nominal party taking a neutral stance and leaving the issues for the Court’s determination. Puncak Kenangan’s Case [66] Puncak Kenangan, as 4th Defendant in Suit 319, takes no active position, being a nominal defendant to the proceedings. S/N 1PzIjDqt0UOefhwlhrzh8g WITNESSES Witnesses and their evidence [67] One witness testified for Puncak Kenangan (the Plaintiff in Suit 319), namely PW1, Sharifah Shaheera Shahab Binti Syed Mustaffa (“Sharifah Shaheera”), a Director of Puncak Kenangan. She is the daughter of Syed Mustaffa and Adib. Her evidence primarily relates to establishing that the Consent Order, was obtained through fraud, material non-disclosure, and an illegal champertous arrangement between Syed Hamzah and Khoo. She testified that Syed Hamzah deliberately concealed the fact that he had personally approved and benefited from the disputed share allotment by pledging the shares for loans he subsequently defaulted on, and that the litigation was actually funded and controlled by Khoo under the Power of Attorney while Syed Hamzah suffered from dementia. [68] One witness testified for Ngan and AT Masters (the Plaintiffs in Suit 319), namely PW2, the aforementioned Lisa Ngan, a shareholder of AT Masters and the daughter of Ngan. Her evidence primarily relates to proving that the Consent Order in OS 142 was obtained through fraud and material non-disclosure regarding Syed Hamzah’s prior approval and usage of the disputed shares, as well as an undisclosed funding arrangement with Khoo. She testified that Syed Hamzah deliberately concealed that he had S/N 1PzIjDqt0UOefhwlhrzh8g personally chaired the 1992/1993 meetings approving the share allotment and had subsequently pledged 5,000 of those shares to her father to secure a loan he defaulted on, meaning he knew the allotment was valid and that he only held one share. Additionally, she provided evidence that the litigation was actually controlled and financed by Khoo through the Power of Attorney and profit-sharing agreement while Syed Hamzah suffered from dementia, facts which were never disclosed to the Court in OS 142. [69] Three witnesses appeared for Syed Sazlee and Khoo (the 1st and 3rd Defendants in Suit 221 and the 1st and 2nd Defendants in Suit 319) as follows: a) DW1 is the aforementioned Dr. Wan Izwin, a Consultant Psychiatrist specialising in Psychogeriatrics. Her evidence primarily relates to providing an expert opinion on whether the medical records from Tuanku Mizan Military Hospital were sufficient to prove that Syed Hamzah was mentally incompetent to manage his affairs or instruct solicitors in 2019. She testified that while the reports indicated “Mixed Dementia” and cognitive decline, they did not contain the specific “functional capacity assessments” required to legally declare someone mentally incompetent, and therefore, the documents alone S/N 1PzIjDqt0UOefhwlhrzh8g could not confirm he lacked the capacity to instruct his lawyers at the material time. b) DW2 is the aforementioned Syed Sazlee, the 1st Defendant in both Suits 221 and 319, and the son and personal representative of the late Syed Hamzah. His evidence primarily relates to the history of the joint venture between Syed Hamzah and Syed Mustaffa, specifically alleging that Syed Mustaffa committed fraud by diluting Syed Hamzah’s 50% shareholding through a deceptive allotment scheme and diverting RM500,000 in company funds to himself. He testified that his father was mentally competent when he discovered these irregularities and instructed solicitors to file OS 142 to rectify the share register, asserting that the legal action was a legitimate attempt to recover interests stolen through the concealment of material financial documents and the secret sale of Sitrac shares. c) DW3 is the aforementioned Khoo, the 3rd Defendant in Suit 221 and the 2nd Defendant in Suit 319, a Chartered Accountant who acted as the attorney for the late Syed Hamzah. His evidence primarily relates to his investigation into Puncak Kenangan’s financial records which he claims revealed a fraudulent “replacement S/N 1PzIjDqt0UOefhwlhrzh8g account” and a sham share allotment, as well as the validity of the Power of Attorney and Declaration of Trust empowering him to act. He testified that he discovered Syed Hamzah’s shareholding had been diluted via a 50,000 share allotment for which no cash was actually received, and maintained that Syed Hamzah was mentally competent to instruct him to pursue the legal actions, including the Consent Order, to rectify these alleged wrongs. [70] One witness testified for SSM (the 2nd Defendant in Suit 221 and the 3rd Defendant in Suit 319) namely DW4, Sazlin binti Abdul Khalid (“Sazlin”), a Senior Investigating Officer at SSM. Her evidence primarily relates to the history of investigations and complaints lodged by Syed Hamzah with SSM regarding the disputed share allotments and financial statements of Puncak Kenangan. She testified that Syed Hamzah’s 2018 rectification application (which led to OS 142) was rejected by SSM, and revealed that he had actually filed a substantially similar complaint regarding the same share disputes as early as 2006, which was closed as “No Further Action” (NFA) in 2015 due to insufficient evidence. She further confirmed that while the Consent Order required SSM to reconsider the application, her investigation is currently suspended due to a court injunction pending the outcome of this trial. S/N 1PzIjDqt0UOefhwlhrzh8g Expungement of Expert Evidence of Khong Heng Jun [71] Syed Sazlee and Khoo sought to introduce expert evidence from Khong Heng Jun (“Khong”) of Messrs Virdos Lima Consultancy (M) Sdn Bhd, comprising a witness statement (Enclosure 116, earlier marked as WSDW2) and an Interim Expert Report dated 3.4.2023. The report opined on four principal matters: a) the validity of the appointment of auditors Ho & Associates on 9.1.2017; b) whether audited financial statements for 1993 to 2016 filed on 10.3.2017 were prepared in accordance with approved accounting standards; c) the validity of the issuance of 50,000 shares by Puncak Kenangan on 6.1.1993; and d) the validity of the sale of 75,000 shares in Sitrac. [72] Puncak Kenangan objected to the admission of this evidence on grounds of relevance and materiality, submitting that the expert opinions did not address the specific grounds for impeaching the Consent Order and fell outside the scope of the pleaded case and agreed Issues to be Tried. I heard counsel’s submissions on the objection and I allowed the Puncak Kenangan’s objection and S/N 1PzIjDqt0UOefhwlhrzh8g ordered that the affidavit and exhibits in Enclosures 123, 124, and 125, the witness statement marked WSDW2, and the Virdos Lima Report in Bundles C1, C2, and C3 (Enclosures 105, 101, and 102) be expunged from the record. My grounds are briefly as follows. [73] I found that the expert report, which concerned the appointment of auditors, accounting standards, and the validity of certain share transactions, fell outside the scope of the pleadings and the agreed issues before the Court. The central inquiry in Suit 221 was strictly confined to whether the Consent Order recorded in OS 142 ought to be impeached on grounds of fraud, collusion, deception, concealment of material facts, or breach of natural justice. It was not the function of the Court in that suit to determine the substantive validity of the underlying corporate transactions addressed by the expert. [74] I further held that it was necessary to maintain clear boundaries between Suit 221 and other related proceedings, in particular Civil Suit WA-22NCC-829- 11/2023 (“Suit 829”) and any potential statutory inquiries by SSM. Suit 829 is an action filed by Syed Sazlee as the executor of the late Syed Hamzah's estate against Puncak Kenangan, Syed Mustaffa, Sitrac, AT Masters, Ngan, Adib, Sharifah Shaheera and several other defendants, alleging a fraudulent conspiracy to deprive Syed Hamzah of his rightful 50% shareholding and over RM 21 million in unpaid S/N 1PzIjDqt0UOefhwlhrzh8g dividends through a fictitious share allotment and unauthorised share transfers. The expert evidence in question was, in my view, more properly directed to the issues arising in Suit 829, which concerned distinct allegations of fraud and conspiracy in relation to the share transactions. To admit such evidence in Suit 221 would have risked conflating separate causes of action and could have prejudiced the fair and orderly conduct of those parallel proceedings. Moreover, any determination by the Court on matters relating to the rectification of the share register would have been premature and might have encroached upon the statutory fact-finding jurisdiction vested in the SSM. [75] While I acknowledged that parties generally had the right to call witnesses in support of their case, that right was not absolute. It had to be exercised in accordance with the rules of civil procedure and subject to the Court’s duty to ensure that only relevant and admissible evidence was received. As the validity of the impugned share transactions had not been pleaded as an issue in Suit 221, the admission of expert opinion on those matters would have been procedurally unfair and would have distracted from the true grounds upon which the Consent Order was sought to be impeached. I also noted that the expert report did not address the critical pleaded issues concerning the late Syed Hamzah’s mental capacity or the alleged breach of natural justice. In the circumstances, I found that the S/N 1PzIjDqt0UOefhwlhrzh8g evidence was of no assistance in resolving the dispute properly before the Court and ought to be excluded. ISSUES TO BE TRIED [76] In Suit 221 the parties filed a Statement of Agreed Issues to be Tried on 7.11.2022, identifying eighteen issues for the Court’s determination: a) Issue 1: Whether the Consent Order obtained on the part of Syed Hamzah in OS 142 was carried out and procured by way of collusion, deception and/or deliberate concealment of material facts on the part of Syed Hamzah. b) Issue 2: Whether OS 142 was deliberately taken out in the manner it was to preclude Puncak Kenangan from challenging the claims therein in abuse of court process. c) Issue 3: Whether the matters in Issues 1 and 2 above were carried out by Syed Hamzah himself, Syed Sazlee and/or Khoo. d) Issue 4: Whether OS 142 and the Consent Order were actuated in bad faith, misconceived in law and in abuse of court process. S/N 1PzIjDqt0UOefhwlhrzh8g e) Issue 5: Whether the Consent Order obtained on the part of Syed Hamzah is a nullity for being in breach of natural justice as Puncak Kenangan was deprived of the right to be heard. f) Issue 6: Whether it was properly disclosed to the Court in OS 142 and drawn to the Court’s attention the following necessary, relevant and/or material facts in relation to the allotment: i) that Syed Hamzah had knowledge of and was involved in the allotment of shares as he was then a director and shareholder of Puncak Kenangan; ii) that Syed Hamzah presided as Chairman of the Board of Directors’ meetings on 9.12.1992 and 6.1.1993 and approved the resolution to increase Puncak Kenangan’s authorised share capital; iii) that Syed Hamzah chaired the Board of Directors’ meetings on 10.12.1992 and 6.1.1993 and approved the resolution in respect of the allotment of 50,000 shares in Puncak Kenangan; S/N 1PzIjDqt0UOefhwlhrzh8g iv) that on 16.8.1993, Syed Hamzah approved the Return of Allotment of Shares (Form 24) in respect of the allotment of the 50,000 shares to the allottees; v) that Syed Hamzah himself was allotted 5,000 shares from the said allotment; vi) that Syed Hamzah benefited from the allotment by pledging his 5,000 shares to Ngan as consideration for loans amounting to RM300,000.00 pursuant to a loan agreement dated 12.7.1994 and a supplementary agreement dated 15.12.1994, and that upon default the said shares were transferred to Ngan; and vii) that the issue concerning the sale of 75,000 shares in Sitrac had been raised and ventilated in Court vide Suit 1507, wherein Khoo’s claim for rectification of the share register was dismissed by the High Court and the subsequent appeals to the Court of Appeal and application for leave to appeal to the Federal Court were likewise dismissed with costs. S/N 1PzIjDqt0UOefhwlhrzh8g g) Issue 7: Whether OS 142 has any connection with OS 131, and if so, whether the Consent Order for OS 142 was recorded pursuant to the Order dated 21.5.2019 for OS 131. h) Issue 8: Whether the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 are champerty agreements and/or otherwise champertous instruments. i) Issue 9: Whether the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 are valid and enforceable instruments supported by lawful consideration. j) Issue 10: Whether OS 142 was instituted and brought pursuant to champertous arrangements and is thereby against public policy, unlawful and/or forbidden by law. k) Issue 11: Whether Syed Sazlee was privy to the alleged champertous arrangements between Syed Hamzah and Khoo and facilitated the same in relation to OS 142. S/N 1PzIjDqt0UOefhwlhrzh8g l) Issue 12: Whether Puncak Kenangan’s claim is barred by the doctrine of res judicata and/or issue estoppel and/or cause of action estoppel by reason of matters pleaded and raised in Suit 623 and/or Suit 474. m) Issue 13: Whether the subject matter of OS 142 is time-barred by laches, the allotment of shares having occurred in 1993. n) Issue 14: Whether Puncak Kenangan is entitled to the reliefs prayed. o) Issue 15: Whether SSM or the High Court had considered or decided on the merits the rectification of Puncak Kenangan’s Register of Members in Originating OS 142, as well as the propriety of the transfer and the relevant form. p) Issue 16: Whether the filing of OS 142 and Hamzah’s conduct pertaining to the consent order therein were genuine and bona fide. q) Issue 17: Whether Puncak Kenangan is estopped from relying on the Agreement for Shares dated 26.2.2021 on the basis that it is a private and/or confidential agreement between Syed Sazlee and S/N 1PzIjDqt0UOefhwlhrzh8g Khoo, for which no authorisation for disclosure to any third party was given. r) Issue 18: How Puncak Kenangan came to be in possession of, or to have knowledge of the contents of, the Agreement for Shares dated 26.2.2021. [77] In Suit 319 the parties filed a Statement of Agreed Issues to be Tried on 26.6.2023, identifying twenty-one issues for the Court’s determination: a) Issue 1: Whether the Consent Order obtained on the part of Syed Hamzah in OS 142 was carried out and procured by way of fraud, deception and/or non-disclosure and/or deliberate concealment of material facts on the part of Syed Hamzah. b) Issue 2: Whether OS 142 was deliberately taken out in the manner it was to preclude Ngan and AT Masters from challenging the claims therein in abuse of court process. c) Issue 3: Whether the matters in Issues 1 and 2 above were carried out by Syed Hamzah himself, Syed Sazlee and/or Khoo. S/N 1PzIjDqt0UOefhwlhrzh8g d) Issue 4: In relation to the sale of shares in Sitrac by Puncak Kenangan to Kelana Jati in or around May 1992: i) Whether Syed Hamzah was a director and/or chairman of Sitrac and a director and/or chairman and shareholder of Puncak Kenangan in 1992; ii) If so, whether Syed Hamzah had knowledge of and/or was aware of the sale of the Sitrac shares from Puncak Kenangan to Kelana Jati in 1992; iii) Whether Syed Hamzah had access to the corporate secretarial documents of Sitrac and Puncak Kenangan and/or was in a position to know of the aforesaid sale of shares since 1992; iv) Whether Syed Hamzah, in his capacity as director and/or chairman of Sitrac and as director and/or shareholder and/or chairman of Puncak Kenangan, knew or was in a position to know that Kelana Jati was requested to pay the consideration for the said sale of Sitrac shares to Shafakat; S/N 1PzIjDqt0UOefhwlhrzh8g v) Whether Syed Hamzah executed the Circular Resolution of Sitrac dated 5.5.1992 and the Member’s Circular Resolution of Puncak Kenangan dated 17.4.1992 authorising the said sale and transfer; vi) Whether the facts and issues raised by Syed Hamzah in relation to the said sale in the Rectification Application and in OS 142 had previously been raised in Suit 1507; vii) Whether Suit 1507 was dismissed by the High Court after full trial and the subsequent appeals to the Court of Appeal and application for leave to appeal to the Federal Court were likewise dismissed; viii) Whether Syed Hamzah made police reports in 2006 and 2013 against Syed Mustaffa in relation to the said sale; and ix) Whether Syed Mustaffa made a police report against Syed Hamzah in 2007 clarifying the allegations made against him. S/N 1PzIjDqt0UOefhwlhrzh8g e) Issue 5: Whether Syed Hamzah, when filing and pursuing OS 142, disclosed the matters set out in Issue 4 above. f) Issue 6: Whether OS 142 has any connection with OS 131. g) Issue 7: Whether Syed Hamzah and SSM entered into the Consent Order in OS 142 on 20.6.2019

A person may apply to the Registrar for the rectification of a register if an entry in the register—

contains any matter contrary to law;

contains any matter that, in a material particular, is false or misleading in the form or context in which the matter is included;

by reason of an omission or misdescription has not been duly completed; or

is incorrect or erroneous.

Upon receipt of the application under subsection (1), in order for the Registrar to decide whether to approve or refuse the application, the Registrar may—

require the applicant to produce any document or to furnish any information as the Registrar thinks necessary in order for the Registrar to rectify the entry; or

require the applicant to give notice of that application to such other person as the Registrar may specify, being a person who appears to the Registrar to be concerned or to have an interest in the business.

The Registrar may refuse any application if the error, mistake or omission does not arise in the ordinary course of the discharge of the duties of the Registrar.

Any person aggrieved with the decision of the Registrar under this section may appeal to the Court.” [112] SSM is entitled to know the full facts when making decisions about whether to exercise its discretionary powers and whether to consent to orders directing reconsideration. The concealment of Syed Hamzah’s own S/N 1PzIjDqt0UOefhwlhrzh8g involvement as Chairman and director who approved the allotment, the concealment of his personal benefit, the concealment of the champertous arrangements, and the concealment of the previous impeachment of OS 131 deprived SSM of information essential to its statutory function and its decision whether to consent to the order. [113] I am reinforced in this view by the fact that the order in OS 131, made on substantially similar facts and for similar relief, was subsequently impeached for fraud by Liza Chan Sow Keng J on 18.10.2021. In that judgment, the Court found that the order dated 21.5.2019 in OS 131 had been obtained by fraud and/or dishonesty by Syed Hamzah, and impeached and set aside both the order and OS 131 itself in their entirety. Syed Sazlee’s appeal to the Court of Appeal was dismissed with costs on 13.9.2022. That judgment, dealing with the same applicant pursuing the same strategy of concealment in relation to connected matters, provides cogent support for the conclusion that Syed Hamzah’s conduct involved deliberate dishonesty. [114] The celebrated dictum of Denning LJ in Lazarus Estates v Beasley [1956] 1 All ER 341 at p 345, affirmed by the Malaysian courts in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 3 MLJ 622, states: “...No court in this land will allow a person to keep an advantage which he has obtained by fraud. No S/N 1PzIjDqt0UOefhwlhrzh8g judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever...” [115] The concealment was conscious and deliberate. The concealed facts were material. They were causative of the order being obtained in the terms it was. The requirements of Royal Bank of Scotland are fully satisfied. [116] I therefore find that the Consent Order dated 20.6.2019 in OS 142 was obtained by fraud through conscious and deliberate dishonesty in the concealment of material facts. This provides a complete and independent ground for impeaching and setting aside the Consent Order and OS 142 in their entirety. Mental Capacity of Syed Hamzah [117] Puncak Kenangan submits that serious questions existed about Syed Hamzah’s mental capacity to conduct litigation at the time OS 142 was filed in March 2019 and when the Consent Order was entered on 20.6.2019. Medical evidence showed that by 2017-2018, Syed Hamzah was exhibiting signs of dementia and cognitive decline. By 5.4.2021, he was declared unfit to testify in Suit 623. S/N 1PzIjDqt0UOefhwlhrzh8g [118] Puncak Kenangan contends that while formal declaration under the Mental Health Act 2001 is not required, the evidence raised compelling questions about whether Syed Hamzah had the requisite capacity to give proper instructions to his solicitors. This should have been disclosed to the Court and SSM. [119] Although Dr Wan Izwin (DW1), a consultant psychiatrist specialising in old age psychiatry with extensive UK and Malaysian experience, was a witness called by Syed Sazlee and Khoo, Puncak Kenangan relies on her testimony that dementia is a form of mental illness involving disturbance of higher cognitive functioning, impairment of activities of daily living, disorientation and memory difficulties. [120] Dr Wan Izwin explained that a Mental Capacity Assessment using a “functional test” is required to determine if a person can manage their own affairs. The test examines whether the person can: understand information relevant to decisions; retain that information long enough to make a voluntary choice; use or weigh up that information as part of decision-making; and communicate their decision. [121] Puncak Kenangan further relies on the testimony of Dr Soraya Kunanayagam (“Dr Soraya”) in Suit 623, where she testified that Syed Hamzah showed signs of dementia S/N 1PzIjDqt0UOefhwlhrzh8g as far back as 2017 and required full examination to substantiate a diagnosis. [122] Puncak Kenangan points to the medical report from Hospital Angkatan Tentera Tuanku Mizan dated 4.10.2021, which diagnosed Syed Hamzah with Mixed Dementia. The report indicated he was prescribed T Ebixa 10mg, a medication for Alzheimer’s disease. A CT head scan performed on 23.1.2018 showed age-related changes and focal hypodensity at the left basal ganglia region. [123] Syed Sazlee and Khoo submit that there is no evidence that Syed Hamzah lacked capacity when OS 131 and OS 142 were filed in 2019. They contend that the medical evidence only emerged in 2021, well after the Consent Order was entered. [124] They rely on a letter dated 18.6.2019 from Messrs Thomas Philip confirming they had conduct of the matter and received proper instructions from Syed Hamzah. [125] They contend that Puncak Kenangan has not proven that Syed Hamzah lacked mental capacity at the relevant time, and that this issue is speculative. [126] While I accept that formal declaration of mental incapacity under the Mental Health Act 2001 was never made, I find that the evidence raises serious and compelling questions S/N 1PzIjDqt0UOefhwlhrzh8g about Syed Hamzah’s mental capacity during the relevant period that should have been disclosed to the Court and to SSM. The failure to disclose these concerns, coupled with the failure to obtain or disclose any proper medical assessment, constitutes material non-disclosure that contributed to the fraudulent procurement of the Consent Order. [127] The medical evidence before me, properly understood, demonstrates a progressive deterioration in Syed Hamzah’s cognitive function beginning well before 2019. This evidence comes from multiple sources: the expert testimony of Dr Wan Izwin, the clinical observations of Dr Soraya as recorded in Suit 623, the medical report from Hospital Angkatan Tentera Tuanku Mizan, and the CT head scan performed on 23.1.2018. [128] Dr Wan Izwin’s evidence was clear, cogent and based on her extensive experience in old age psychiatry, both in the United Kingdom and in Malaysia. She explained that dementia is a form of mental illness involving “disturbance of higher cognitive functioning, impairment of activities to daily living, disorientation, memory difficulties. So, it affects the person’s cognition in a global way.” Crucially, Dr Wan Izwin emphasised that dementia is not a sudden-onset condition but a progressive illness. The CT scan performed on 23.1.2018 showed age-related changes suggestive of brain atrophy. By 4.10.2021, Syed Hamzah was diagnosed S/N 1PzIjDqt0UOefhwlhrzh8g with Mixed Dementia and prescribed T Ebixa 10mg, a medication specifically for Alzheimer’s disease. [129] Dr Wan Izwin further explained that a Mental Capacity Assessment using a “functional test” is required to determine if a person can manage their own affairs. The functional test examines whether the person can: understand information relevant to decisions; retain that information long enough to make a voluntary choice; use or weigh up that information as part of decision-making; and communicate their decision. She emphasised that mental capacity is both “time-sensitive and decision-specific” - a person may have capacity for some decisions but not others, and capacity must be assessed at the specific time and in relation to the specific decision being made. [130] The most compelling evidence of the progressive nature of Syed Hamzah’s condition comes from Dr Soraya’s testimony in Suit 623. In her judgment for Suit 623 dated 23.12.2021, Liza Chan Sow Keng J recorded: “[22] To recapitulate, after the Plaintiffs closed their case, D1 could not attend court to give evidence in April 2021. A medical certificate was tendered on his behalf. Dr. Soraya was then called to provide testimony on his condition, at the request of the Court and with the agreement of all parties, which she did. It was then revealed that D1 had seemingly been showing signs of dementia from as far back S/N 1PzIjDqt0UOefhwlhrzh8g as 2017. In her testimony, Dr. Soraya suspected that D1 had dementia but a full examination was required to substantiate and confirm this diagnosis. Dr. Soraya informed the Court that tests were being conducted to establish D1’s exact medical condition and that she was waiting for the outcome of the reports. I do not consider her evidence as hearsay evidence; she referred to medical records, tests done. The documents sought would enable the Court to arrive at a just decision.” [131] The temporal progression is highly significant. Signs of dementia were apparent by 2017 according to Dr Soraya. The CT scan showed abnormalities in January 2018. OS 142 was filed in March 2019. The Consent Order was entered in June 2019. By April 2021, Syed Hamzah could not attend court. By 5.4.2021, he was declared unfit to testify. He passed away on 18.7.2021. By 4.10.2021, he was diagnosed with Mixed Dementia. This timeline demonstrates that the cognitive decline observed in 2021 was not a sudden development but the culmination of a progressive condition that had been manifesting since at least 2017-2018, encompassing the entire period when OS 142 was being prosecuted. [132] I accept Dr Wan Izwin’s evidence that mental capacity is decision-specific and time-specific. A person may have capacity for some decisions but not others. However, as S/N 1PzIjDqt0UOefhwlhrzh8g the Supreme Court of Victoria held in Goddard Elliot (A Firm) v Fritch [2012] VSC 87: “When the issue is properly raised, it is the duty of the court at the earliest opportunity to examine whether the person has the mental capacity which is required. The principle is of long standing and was applied in the nineteenth century in Howell v Lewis.” [133] The capacity to give proper instructions in complex litigation involving allegations of fraud, unauthorised transactions, and corporate governance matters requires a high level of cognitive function. [134] The principle established in Masterman-Lister v Brutton & Co (Nos 1 and 2), Masterman-Lister v Jewell and Another [2003] 1 WLR 1511 by the English Court of Appeal is instructive. Kennedy LJ stated: “...The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it ...” S/N 1PzIjDqt0UOefhwlhrzh8g [135] The evidence before me raises serious doubts about whether Syed Hamzah had the requisite cognitive capacity to: understand the complex factual and legal issues involved in OS 142; appreciate the inconsistency between his complaints and his own documented involvement in the transactions; retain information long enough to give coherent instructions; weigh up the implications of the champertous arrangements; and make informed decisions about the conduct of the litigation. [136] Syed Sazlee and Khoo submit that there is no evidence that Syed Hamzah lacked capacity when OS 142 was filed in March 2019 and the Consent Order was entered in June

They rely on the fact that solicitors were on record (evidenced by the letter to Court dated 18.6.2019) and point to a subsequent letter dated 28.5.2021 from Messrs Thomas Philip to Messrs Zahir Jeya & Zainal confirming they had conduct of the matter and received “proper instructions” from Syed Hamzah. They contend that the medical evidence only emerged in 2021, well after the Consent Order was entered, and that Puncak Kenangan has not proven that Syed Hamzah lacked mental capacity at the relevant time. [137] I do not accept this submission. The letter from Messrs Thomas Philip dated 28.5.2021 (and the correspondence in 2019) states merely that solicitors had received “proper instructions.” It does not address the substantive question S/N 1PzIjDqt0UOefhwlhrzh8g of mental capacity, nor does it engage with the medical evidence of progressive dementia. Solicitors may receive what appear to be instructions without being aware of underlying capacity issues, particularly in the early stages of dementia where social functioning may mask cognitive decline. As stated in Goddard Elliot v Fritch by the Supreme Court of Victoria: “The mental capacity of a client to instruct is a reflection of that mental capacity which the client must have to participate in the legal proceeding. As a lawyer is an officer of the court, it is their ‘primary responsibility’ to be reasonably satisfied that the client has the mental capacity to participate in the proceeding and to instruct. Where the client does not have that capacity, the lawyer does not have the authority to represent them in the proceeding, except for certain limited purposes, most particularly perhaps for the purpose of an inquiry into that question.” [138] The critical point is not whether this Court can now make a definitive finding that Syed Hamzah lacked capacity in 2019, though the evidence strongly suggests that he did, but rather that serious questions existed which should have been disclosed to the Court and to SSM. As Dr Wan Izwin acknowledged in cross-examination: “unless you do a direct test of mental capacity at that point in time, because mental capacity is time-sensitive and decision-specific, you S/N 1PzIjDqt0UOefhwlhrzh8g cannot be absolutely sure whether he had, you know, impairment of mental capacity in 2019.” However, she also stated that it was “doubtful” whether Syed Hamzah had capacity at the relevant time, given the progressive nature of dementia and the signs manifesting from 2017. [139] When seeking a court order, parties and their solicitors have a duty to bring to the Court’s attention any matters that might affect the Court’s willingness to grant the relief sought. Concerns about a party’s mental capacity are precisely such matters. The Court is entitled to know if there are questions about whether the applicant truly understands and wishes to pursue the application. This duty is especially acute where, as here, the order is being sought by consent without any contested hearing at which the Court could examine the facts. [140] Similarly, SSM, as a statutory body exercising discretionary powers, was entitled to know that there were questions about whether the complainant had the capacity to have made informed complaints and to participate in any subsequent investigation. Sazlin, the investigating officer from SSM, confirmed in her testimony that SSM had no knowledge of Syed Hamzah’s mental condition when entering into the Consent Order. When asked whether such knowledge would have influenced SSM’s decision to enter into the Consent Order, she responded: S/N 1PzIjDqt0UOefhwlhrzh8g “Ok. Sewajarnya, Yang Arif, sekiranya SSM mengetahui perkara ini dan sewajarnya pihak litigasi akan merujuk kepada Mahkamah perkara tersebut, membangkitkan perkara tersebut di Mahkamah dan Mahkamah yang akan memutuskan keadaan tersebut.” (Appropriately, My Lord, if SSM had known this matter then appropriately the litigation party would have referred the matter to the Court, raised the matter in Court and the Court would have decided that situation.) [141] The deliberate concealment of these concerns, coupled with the failure to obtain or disclose any proper medical assessment, amounts to a further aspect of the fraudulent procurement of the Consent Order. The evidence establishes that by the time OS 142 was filed in March 2019, Syed Hamzah had been exhibiting signs of dementia for at least two years. A CT scan had shown brain abnormalities. Yet none of this was disclosed to the Court or to SSM. The suppression of this information was conscious and deliberate. It was not a matter of inadvertence or oversight. [142] Moreover, the subsequent conduct in Suit 623 demonstrates that those acting on Syed Hamzah’s behalf were aware of capacity concerns. When Syed Hamzah was scheduled to testify in April 2021, a medical certificate was produced stating he was unable to attend court due to “?dementia (estimated) to rule out acute confusional S/N 1PzIjDqt0UOefhwlhrzh8g state/delirium/depression.” All parties agreed that Syed Hamzah was under a disability and that it was necessary to appoint a legal representative. The decision was made not to allow Syed Hamzah to take the stand despite his witness statement having already been filed. Yet these same concerns, which must have been building for years given the progressive nature of dementia, were never disclosed when OS 142 was being prosecuted. [143] I therefore find that the failure to disclose concerns about Syed Hamzah’s mental capacity constitutes a material non-disclosure that contributed to the fraudulent procurement of the Consent Order. As established in Royal Bank of Scotland v Highland Financial Partners, the test for fraud requires that the fresh evidence would have entirely changed the way in which the Court approached and came to its decision. A court faced with evidence that the applicant had himself approved the transactions he sought to impugn, that he was acting pursuant to a champertous arrangement with a third party who stood to benefit from the litigation, and that there were serious questions about his mental capacity, could not in good conscience have granted the order, even by consent. The concealment of mental capacity concerns, viewed together with the other material non-disclosures, satisfies the requirements for fraudulent procurement of the Consent Order. S/N 1PzIjDqt0UOefhwlhrzh8g Abuse of Court Process and Breach of Natural Justice [144] Puncak Kenangan submits that OS 142 was deliberately structured to preclude Puncak Kenangan and other interested parties from being heard, constituting a fundamental breach of natural justice and abuse of court process. [145] Despite the fact that the application concerned Puncak Kenangan’s register of members, Puncak Kenangan was not named as a party and was not served with the Originating Summons. The only named defendant was SSM, a statutory body with no direct interest in the outcome. [146] Similarly, other affected parties including Sitrac, Kelana Jati, and the current shareholders of Puncak Kenangan were excluded from the proceedings. The Consent Order was entered bilaterally between Syed Hamzah and SSM, with no opportunity for those whose rights would be affected to make submissions or to oppose the application. [147] Puncak Kenangan relies on the principle that a person whose rights may be affected by proceedings is entitled to notice and an opportunity to be heard. The deliberate exclusion of Puncak Kenangan and other interested parties from OS 142 violated this fundamental principle. S/N 1PzIjDqt0UOefhwlhrzh8g [148] Puncak Kenangan further submits that OS 142 constituted impermissible multiplicity of proceedings, being the latest in a series of attempts to relitigate matters that had been determined adversely to Khoo in 1992 and to Syed Hamzah in his 2006 complaint to SSM. [149] Syed Sazlee and Khoo submit that the Consent Order itself required notice to be given to Sitrac, Puncak Kenangan and Kelana Jati before SSM reconsidered the application. They contend that interested parties would therefore have the opportunity to participate at the substantive stage before SSM. [150] They argue that the structure of OS 142 was consistent with Section 602 of the Companies Act 2016, which provides for appeals to the High Court against SSM’s decisions. They contend that the appeal is between the applicant and SSM, with other parties participating at the subsequent stage before SSM. [151] I find that OS 142 was deliberately structured to preclude interested parties from participating, constituting both abuse of process and breach of natural justice. [152] The fundamental principle of natural justice, enshrined in the maxim audi alteram partem, requires that a person whose rights may be affected by a decision be given notice and an opportunity to be heard. This principle applies not S/N 1PzIjDqt0UOefhwlhrzh8g only to judicial proceedings but to all decision-making processes that may affect rights. The right to be heard is not merely a procedural formality but a fundamental protection against arbitrary exercise of power affecting proprietary interests. [153] The principle that orders obtained in breach of natural justice constitute nullities which may be set aside ex debito justitiae is well established. In Lee Gee Pheng v RHB Bank Bhd [2004] 1 MLJ 618, the High Court held that: “A final order may be set aside or amended without the need to appeal in the following cases: ...

(iii) where the order has been obtained in breach of natural justice ...

where the justice of the case requires the court to correct a serious defect in the order”. [154] The Court held that where proceedings have been conducted in breach of the rules of natural justice, the resulting order is a nullity which may be set aside in the exercise of the Court’s inherent jurisdiction. This principle was affirmed by the Court of Appeal in Ng King Chong & Anor v Ooi Kim Geik & Ors [2019] 2 CLJ 246, where the Court reiterated that: S/N 1PzIjDqt0UOefhwlhrzh8g “It is settled law, as we had earlier accepted, that any person affected by an order obtained in breach of natural justice is entitled to have it set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside such orders. In short, an order made in breach of the rules of natural justice was a nullity and could be challenged in collateral proceedings.” [155] In Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374, the High Court held that where an order has been obtained in breach of natural justice, the affected party is entitled to have it set aside as of right. The case of Mak Sik Kwong v Minister of Home Affairs, Malaysia (No. 2) [1975] 2 MLJ 175, decided by Justice Eusoffee Abdoolcader J (as he then was) and approved by the Federal Court in Pahang South Union Omnibus Co Bhd v Minister of Labour and Manpower & Anor [1981] 2 MLJ 199, further establishes that the rules of natural justice are not rigid or universally fixed but are flexible and must be applied according to the circumstances of each case, including the nature of the inquiry, the governing framework, and the subject matter involved. In the present case, the circumstances overwhelmingly demand the application of the audi alteram partem principle, given that the proceedings directly S/N 1PzIjDqt0UOefhwlhrzh8g affected the proprietary rights of parties who were deliberately excluded. [156] In the present case, the application in OS 142 sought an order directing SSM to reconsider whether to rectify Puncak Kenangan’s register of members pursuant to Syed Hamzah’s Section 602 application dated 26.4.2018. The rectification, if granted by SSM following its reconsideration mandated by the Court order, would fundamentally alter the shareholding structure of Puncak Kenangan, potentially invalidating the 1993 allotment of 50,000 shares and reverting ownership to the pre-allotment position. This would affect not merely the register as an administrative record, but the proprietary rights and beneficial interests of multiple parties. [157] Such an outcome would directly and substantially affect: Puncak Kenangan itself, as the company whose register would be rectified and whose corporate structure would be altered; the allottees of the 50,000 shares (specifically Shafakat, Munsol, Syed Hamzah, and others such as Baharudin and Najmuddin), whose shareholding would be cancelled; the transferees who acquired shares from the original allottees, including Ngan (who acquired Syed Hamzah’s 5,000 shares pursuant to loan agreements dated 12.7.1994 and 15.12.1994), AT Masters, and Adib (who acquired shares from Munsol); and companies like Kelana Jati whose rights derived from transactions with Puncak S/N 1PzIjDqt0UOefhwlhrzh8g Kenangan, including the sale of 75,000 Sitrac shares by Puncak Kenangan to Kelana Jati pursuant to the agreement dated 17.4.1992 for RM500,000.00. [158]

Yet none of these parties were named as defendants in OS None were served with the Originating Summons filed on 21.3.2019. None had any opportunity to oppose the application before the Court order was obtained on 20.6.2019, or to draw the Court’s attention to the material facts that Syed Hamzah had concealed. The only named defendant was SSM, a statutory regulator with no direct proprietary interest in the outcome and no knowledge of the historical facts concerning Syed Hamzah’s involvement in the 1993 allotment and related transactions. [159] Syed Sazlee and Khoo submit that interested parties would have the opportunity to participate at the subsequent stage before SSM pursuant to Section 602(2)(b) of the Companies Act 2016, which provides that the Registrar “may require production of documents or information deemed necessary or to give notice to other parties”. They contend that the structure of OS 142 was consistent with Section 602(4), which provides for appeals to the High Court against SSM’s decisions, and that such appeals are properly between the applicant and SSM as decision-maker, with other parties participating at the substantive stage before SSM during its reconsideration. S/N 1PzIjDqt0UOefhwlhrzh8g [160] This submission does not address the fundamental problem. By the time SSM reconsidered the application pursuant to the Court order, that Court order would already have been obtained ex parte as against the affected parties. The interested parties would be facing a situation where they must respond to an investigation mandated by court order directing SSM to reconsider, rather than having had the opportunity to oppose the obtaining of that order in the first place. Moreover, the bilateral nature of the Consent Order, entered on 20.6.2019 between Syed Hamzah and SSM with no participation by affected parties, meant that those parties were effectively bound by an agreement to which they were not party and about which they had no knowledge until served with the Order. The Consent Order was not merely procedural or administrative; it was dispositive of the parties’ rights in respect of the appeal and created a binding obligation on SSM to reconsider the Section 602 application. [161] The situation is analogous to that condemned by the courts in cases involving default judgments entered without proper service. Where a judgment is entered affecting a party’s rights without that party having been given notice or opportunity to be heard, the judgment is liable to be set aside as having been obtained in breach of natural justice. As Lord Diplock L.J. held in Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 (at page 736): S/N 1PzIjDqt0UOefhwlhrzh8g “It has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside”. [162] In Toh Seow Ngan & Ors v Toh Seak Keng & Ors [1990] 2 MLJ 303, the Supreme Court per Mohd Azmi SCJ held that: “In our view the defects in the present consent order are such that the appellants are entitled to have it set aside ex debito justitiae as far as it affected them. There is no denial that in breach of the rules of natural justice, the High Court had no jurisdiction to make the consent order affecting the rights of the appellants. In our view, if the learned judge had directed his mind on the proper exercise of the inherent jurisdiction of the court, he would have exercised it in favour of the appellants and he would have ordered the consent order as far as it affected their shares in the company to be discharged.” [163] Here, the breach is even more egregious because the exclusion was deliberate. Syed Hamzah and his advisors, including Khoo through the Power of Attorney dated 19.5.2016 which authorised him to prosecute proceedings on Syed Hamzah’s behalf, were well aware that Puncak Kenangan and other parties had direct and substantial interests in the subject matter. The choice to name only S/N 1PzIjDqt0UOefhwlhrzh8g SSM as defendant, and to enter a Consent Order with SSM rather than pursuing a contested application with notice to affected parties, was a deliberate stratagem to avoid scrutiny and opposition from those parties whose interests would be prejudiced by the rectification. [164] This stratagem was facilitated by the prior obtaining of the similar order in OS 131 concerning Sitrac. The letter dated 18.6.2019 from Messrs Thomas Philip to the Secretary of the High Court Judge explicitly referenced the order in OS 131, stating: “Untuk makluman pihak Mahkamah yang mulia ini, suatu perintah yang serupa telahpun dimasuki antara pihak-pihak dalam suatu tindakan yang lain, iaitu dalam Mahkamah Tinggi Malaya Kuala Lumpur, saman pemula no. WA-24NCC-131- 03/2019. Tindakan ini adalah berdasarkan fakta-fakta yang berkaitan, tapi adalah berkenaan syarikat yang lain” (For the information of the Honourable Court, a similar order has been entered between the parties in another action, namely in the High Court of Malaya at Kuala Lumpur, Originating Summons No. WA-24NCC-131-03/2019. This action is based on related facts, but concerns a different company). [165] This gave the Court the impression that the procedure was routine and uncontroversial and that a similar order had been properly obtained in related proceedings, when in fact S/N 1PzIjDqt0UOefhwlhrzh8g the order in OS 131 was subsequently impeached for fraud in Suit 623 by judgment dated 18.10.2021, which declared that the order dated 21.5.2019 in OS 131 had been obtained by fraud and dishonesty by Syed Hamzah, and struck off OS 131 in totality. [166] The exclusion of interested parties also enabled the concealment of material facts to go unchallenged. Had Puncak Kenangan been served with OS 142 and given the opportunity to be heard, it would have been able to draw the Court’s attention to: Syed Hamzah’s own involvement in the 1993 allotment as Chairman and director of Puncak Kenangan; his presiding as Chairman of the Board of Directors’ meetings on 9.12.1992 and 6.1.1993 where he approved the resolutions to increase Puncak Kenangan’s authorised share capital and to allot the 50,000 shares; his approval on 16.8.1993 of Form 24 (Return of Allotment of Shares); his receipt of 5,000 shares from the allotment; his pledging of those 5,000 shares to Ngan as security for loans totalling RM300,000.00 and his subsequent transfer of the shares to Ngan upon his failure to repay; his approval of the sale of 75,000 Sitrac shares by Puncak Kenangan to Kelana Jati; the existence of the champertous arrangements in the form of the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016, and the Agreement for Shares dated 26.2.2021; and the prior failed litigation in Suit 1507 by Khoo seeking rectification of Sitrac’s share register. The Court would have been S/N 1PzIjDqt0UOefhwlhrzh8g presented with the complete picture rather than the curated and deliberately incomplete narrative in Syed Hamzah’s affidavit in support. [167] I also accept Puncak Kenangan’s submission that OS 142 constituted impermissible multiplicity of proceedings. The issues raised in OS 142, namely the validity of the 1993 allotment of 50,000 shares in Puncak Kenangan and the alleged unauthorised sale of 75,000 Sitrac shares, had been ventilated on multiple previous occasions, demonstrating a pattern of repeated attempts to relitigate matters that had been determined adversely. [168] First, in Khoo’s Suit 1507 seeking rectification of Sitrac’s share register and claiming a 23% beneficial interest in Sitrac shares. This claim was dismissed by the High Court and his appeals to the Court of Appeal and application for leave to appeal to the Federal Court were likewise dismissed with costs. The issues concerning the sale of Sitrac shares and the transactions between Puncak Kenangan, Sitrac, and Kelana Jati had been fully ventilated and conclusively determined against Khoo. [169] Second, in Syed Hamzah’s complaint to SSM in 2006 seeking rectification of Puncak Kenangan’s register of members, alleging that the 1993 allotment was without consideration or alternatively that the consideration came from an unauthorised sale of 75,000 Sitrac shares. This S/N 1PzIjDqt0UOefhwlhrzh8g complaint was investigated by SSM in the exercise of its regulatory functions. [170] Third, in OS 131 filed on 19.3.2019, merely two days before OS 142 was filed on 21.3.2019, which resulted in an order that was subsequently impeached for fraud by judgment delivered on 18.10.2021 in Suit 623. OS 131 concerned Sitrac’s register whilst OS 142 concerned Puncak Kenangan’s register, but both proceedings were based on substantially similar allegations regarding the same underlying transactions and relationships. [171] The filing of OS 142 on 21.3.2019, merely two days after OS 131 was filed on 19.3.2019, and concerning substantially similar allegations regarding related companies controlled by the same individuals and deriving from the same 1992 transactions, demonstrates a pattern of repeated attempts to relitigate matters that had been determined unfavourably. As Puncak Kenangan submits, citing Lai Kim Loi v Dato Lai Fook Kim & Anor [1989] 2 MLJ 290, the doctrine against multiplicity seeks to prevent burdening the Court and opposing parties with the duplication of proceedings, particularly when the issues raised are substantially the same as in prior actions. In Lai Kim Loi it was stated: “Although the issues raised and the relief sought are not totally similar, yet the substantial duplication S/N 1PzIjDqt0UOefhwlhrzh8g of issues and relief sought in the writ of summons and in the petition amounted to multiplicity of actions and in all the circumstances of the case, the petition presented is vexatious and is an abuse of the process of the court and ought to be struck out”. [172] Furthermore, the act of initiating OS 142 whilst aware that the matter had already been ventilated in the Suit 1507 and in prior complaints to SSM amounts to a collateral attack on prior determinations. In Gabriel Peter & Partners (Suing as a Firm) v Wee Chong Jin & Ors [1998] 1 SLR 374, a decision of the Singapore High Court cited with approval by Malaysian courts, Stuart-Smith LJ stated in Lonrho v Fayed (No 5) [1993] 1 WLR 1489 that: “if an action was not brought bona fide for the purpose of obtaining relief but for some ulterior or collateral purpose, it might be struck out as an abuse of the process of the court”. [173] The cumulative effect of excluding interested parties, concealing material facts, and repeatedly relitigating issues amounts to a serious abuse of this Court’s process. The Court’s processes are not to be used as instruments of oppression or as means to obtain advantages through procedural manipulation and concealment. S/N 1PzIjDqt0UOefhwlhrzh8g [174] The deliberate exclusion of interested parties from OS 142 is particularly concerning when considered in the context of the Federal Court’s decision in Dr Lourdes Dava Raj a/l Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor [2020] 5 MLJ 185. The Federal Court held that: “The doctrines of res judicata, issue estoppel and abuse of process raised by the MMC had no application in the instant case which concerned a breach of natural justice. Dr Lourdes was expressly excluded from the judicial review proceedings. There was a deliberate act to preclude him from defending himself. This was not a re-litigation of the judicial review proceedings. Rather, Dr Lourdes was seeking to exercise his right to be heard”. [175] In the present case, Puncak Kenangan and the other affected parties were expressly excluded from OS 142, there was a deliberate act to preclude them from defending their interests, and they are now properly seeking to exercise their right to have the order obtained in breach of natural justice set aside ex debito justitiae. [176] I therefore find that OS 142 was deliberately taken out in a manner calculated to preclude Puncak Kenangan and other interested parties from challenging the application, constituting both an abuse of court process and a breach of the principles of natural justice. This provides an S/N 1PzIjDqt0UOefhwlhrzh8g independent ground for setting aside both the Consent Order dated 20.6.2019 and OS 142 itself in its entirety. Champerty and Illegality [177] Puncak Kenangan submits that the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016, and the Agreement for Shares dated 26.2.2021 are champertous agreements contrary to public policy and void under Section 24(e) of the Contracts Act 1950. [178] Champerty is defined as an agreement whereby a person with no legitimate interest in litigation agrees to assist a party in bringing or maintaining the litigation in return for a share of the proceeds. It is a form of maintenance that is aggravated by the intermeddler taking a share of the proceeds. [179] Puncak Kenangan contends that Khoo had no legitimate interest in Puncak Kenangan. He was never a shareholder, director or creditor of Puncak Kenangan. His interest arose purely from the champertous agreements with Syed Hamzah. [180] Under the Declaration of Trust, Khoo provided assistance and services to Syed Hamzah in return for 47.5% of any proceeds or damages. The Power of Attorney gave Khoo the right to prosecute actions on Syed Hamzah’s behalf S/N 1PzIjDqt0UOefhwlhrzh8g and receive proceeds. The Agreement for Shares formalised the arrangement whereby Khoo would receive 47.5% of Syed Hamzah’s shares in Puncak Kenangan (representing 23.75% of the total) if the litigation succeeded (with an additional 12.5% payable under certain conditions). [181] Puncak Kenangan submits that this arrangement was designed to enable Khoo to obtain through champerty what he had failed to obtain through his dismissed Suit 1507. If the 1993 allotment were cancelled, the shareholding would revert to 1:1 (Syed Hamzah and Syed Mustaffa each holding one share, representing 50% each). Khoo would then receive 47.5% of Syed Hamzah’s 50%, being 23.75% which is almost exactly the 23% he had claimed unsuccessfully in 1992. [182] Puncak Kenangan relies on Section 24(e) of the Contracts Act 1950, which provides that an agreement is void if “the court regards it as immoral, or opposed to public policy.” [183] Puncak Kenangan submits that champertous agreements have consistently been held by Malaysian courts to be contrary to public policy and void. Such agreements undermine the integrity of the judicial process by giving strangers to litigation a financial interest in its outcome, potentially encouraging frivolous or vexatious litigation and distorting the proper administration of justice. S/N 1PzIjDqt0UOefhwlhrzh8g [184] Syed Sazlee and Khoo submit that Khoo is not a stranger to the proceedings but has legitimate interest by virtue of the Declaration of Trust, Power of Attorney and Agreement for Shares themselves. [185] They contend that Khoo is a beneficiary under the Declaration of Trust, an attorney under the Power of Attorney, and a party to the Agreement for Shares. These capacities give him standing and interest in the proceedings. [186] They rely on the judgment in Suit 474, where the Court found no conspiracy between Syed Hamzah and Khoo. [187] They submit that the agreements are valid contracts between Syed Hamzah and Khoo concerning Syed Hamzah’s own shares, and do not constitute champerty. [188] They contend that the test for champerty requires showing that the agreements are tainted with illegality, and that no such illegality has been proven. [189] I find that the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 constitute champertous arrangements that are void as contrary to public policy under Section 24(e) of the Contracts Act 1950, and that OS S/N 1PzIjDqt0UOefhwlhrzh8g 142 was instituted and prosecuted pursuant to these champertous arrangements. [190] As explained in Re Trepca Mines Ltd. (No. 2) [1963] Ch. 199, champerty is derived from the term campi partitio, meaning “division of the field,” and occurs when a person maintaining another in litigation stipulates for a share of the proceeds. Described by Pearson L.J. as a “species of the genus maintenance,” it constitutes “champertous maintenance” specifically because of the agreement to share the fruits of the litigation. [191] The classic formulation of maintenance was articulated by Lord Haldane in Neville v London Express Newspapers Ltd AC 368 (HL), as cited in Pollock and Mulla, The Indian Contract Act, 1872 (16th Edition): “...it is unlawful for a stranger to render officious assistance by money or otherwise to another person in a suit in which that third person has himself no legal interest, for its prosecution or defence.” Champerty is an aggravated form of maintenance where the maintainer stipulates for a share of the proceeds of the action or suit or other proceedings where property is in dispute. [192] The law regards champerty as contrary to public policy because it: gives a stranger to litigation a financial interest in its outcome, potentially encouraging unnecessary or vexatious proceedings; may lead to the suppression or S/N 1PzIjDqt0UOefhwlhrzh8g fabrication of evidence; distorts the proper conduct of litigation by introducing commercial considerations that may conflict with the pursuit of justice; and undermines public confidence in the administration of justice. As observed by Lod Denning M.R. in Re Trepca Mines Ltd: “...the reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated; but, be that so or not, the law for centuries has declared champerty to be unlawful, and we cannot do otherwise than enforce the law.” [193] Section 24(e) of the Contracts Act 1950 provides: “What considerations and objects are lawful, and what not

The consideration or object of an agreement is lawful, unless— ...

the court regards it as immoral, or opposed to public policy.” [194] The Courts have consistently held that champertous agreements fall within Section 24(e) as being opposed to S/N 1PzIjDqt0UOefhwlhrzh8g public policy. The Federal Court recognised in Theresa Chong v Kin Khoon & Co [1976] 2 MLJ 253 that contracts may be void as contrary to public policy under Section 24 of the Contracts Act 1950 if they fall into established categories of prohibited contracts, including champerty and maintenance. In Amal Bakti Sdn Bhd & Ors v Milan Auto

(M) Sdn Bhd & Ors [2009] 5 MLJ 95, the Court of Appeal held: “(2) ...It is trite that court will not entertain champerty agreement or its like on public policy grounds. The first plaintiff’s action against the second defendant was not maintainable”. [195] Further, as observed in Khan Kam Chee v Loke Wan Yat Realty Sdn Bhd [1985] 1 MLJ 42: “The mere fact that champerty, if it exists, is illegal and, indeed, can be criminal, is certainly not a reason for refusing to consider it as part of the defence to an action where, if the agreement is champertous and illegal, it destroys a necessary step in the plaintiff’s title to the action.” [196] Examining the three agreements in the present case, the Declaration of Trust dated 13.5.2016 states: “In consideration of KKC having provided and continue to provide assistance/services to me, S/N 1PzIjDqt0UOefhwlhrzh8g DSH, I, DSH hereby undertakes covenants and agrees to grant to KKC an irrevocable power of attorney to KKC to prosecute the actions on my behalf and receive the proceeds and/or damages on my behalf. And who will distribute 52.5% to me and to my estate in event of my demise.” [197] This document establishes that: a) Khoo provided assistance and services to Syed Hamzah; b) in return, Syed Hamzah granted Khoo power to prosecute actions and receive proceeds; and c) Khoo was entitled to 47.5% of any proceeds or damages. [198] The Power of Attorney dated 19.5.2016 was executed to effectuate these terms, giving Khoo broad authority to act, which the Declaration of Trust defined as the power “to prosecute the actions on my behalf” and to “receive the proceeds and/or damages on my behalf.” [199] The Agreement for Shares dated 26.2.2021 formalised and detailed the arrangement. Under this agreement, the Deceased agreed to grant 47.5% of his 50% shareholding in Puncak Kenangan to Khoo. Furthermore, if Khoo decided not to proceed with his potential claim for a 23% S/N 1PzIjDqt0UOefhwlhrzh8g stake in Sitrac (which the Deceased acknowledged), the Deceased agreed to allocate an additional 12.5% of his shares in Puncak Kenangan to Khoo. The Agreement for Shares, when read together with the Declaration of Trust dated 13.5.2016, reflected that Khoo had rendered assistance and services to the Deceased, and that the grant of the specified shareholdings was the consideration for that assistance. [200] It was also agreed that Khoo shall have powers to determine all issues under the agreement by virtue of the Power of Attorney dated 19.5.2016. [201] The mathematical effect of this arrangement is significant. If the 1993 allotment of 50,000 shares were cancelled, Puncak Kenangan’s share capital would revert to the pre-allotment position of only two issued shares - one held by the Deceased and one by Adib - with each representing 50% of the company. Under the Agreement for Shares dated 26.2.2021, Khoo was granted 47.5% of Syed Hamzah’s purported 50% shareholding. This translates mathematically to a beneficial interest of 23.75% in Puncak Kenangan. [202] The practical effect of this calculation is that Khoo would secure approximately 23.75% of the company - a figure remarkably close to the 23% interest he had unsuccessfully claimed in Suit 1507. It is evident to this Court that the S/N 1PzIjDqt0UOefhwlhrzh8g arrangement was designed to enable Khoo to circumvent the final judgment delivered against him in 1993. This mathematical translation exposes the proceedings as a calculated abuse of the court process, pursued to obtain collaterally what had been denied substantively in the prior litigation. [203] The circumstances surrounding the discovery of these agreements merit examination. These documents came to light during proceedings in Suit 623 where Khoo, through his unsworn affidavit, disclosed that he was purportedly authorised with the Power of Attorney, in his attempt to continue with the proceedings as attorney for Syed Hamzah. The Power of Attorney dated 19.5.2016 was allegedly made for valuable consideration and referred to the Declaration of Trust dated 13.5.2016. The production of the Declaration of Trust was resisted, requiring Puncak Kenangan’s application for discovery. Despite an order being obtained for its production, Syed Sazlee failed and/or refused to comply with the said Court Order. The Declaration of Trust was only disclosed after an Unless Order was issued. [204] The Agreement for Shares only surfaced through Syed Sazlee’s probate application filed on 4.8.2021, where it was included as part of Syed Hamzah’s assets. As recorded in Sharifah Shaheera’s testimony: S/N 1PzIjDqt0UOefhwlhrzh8g “This is 1st Defendant’s Affidavit In Support for his application for Grant of Probate in respect of the estate of the Deceased wherein the Agreement for Shares dated 26.2.2021 was included as part of the Deceased’s assets.” [205] The pattern of resistance to disclosure demonstrates consciousness of the documents’ problematic nature. [206] The contention that Khoo possessed a legitimate interest in Puncak Kenangan by virtue of the impugned agreements is circular and unsustainable. The central issue is whether those agreements are champertous. If they are champertous, they are void and incapable of conferring any lawful or legitimate interest. A party cannot derive standing or legitimacy from an agreement whose very validity is in question on grounds of public policy. [207] The proper inquiry is whether Khoo had an independent legitimate interest in Puncak Kenangan apart from the impugned arrangements. On the evidence, he did not. He was never a shareholder, director, creditor or employee of Puncak Kenangan, nor did he have any contractual relationship with the company. His only nexus to the company arose through Syed Hamzah pursuant to the challenged agreements: the Power of Attorney, the Declaration of Trust and the Agreement for Shares. S/N 1PzIjDqt0UOefhwlhrzh8g [208] In substance, the arrangements sought to enable a stranger to acquire an interest in litigation concerning the company. The law proscribes champertous agreements precisely because they permit the purchase of a stake in litigation, thereby creating risks to the integrity of the judicial process and the proper administration of justice. Public policy intervenes to prevent such trafficking in litigation, and agreements of that nature are rendered void and unenforceable. [209] Syed Sazlee and Khoo’s reliance on the judgment in Suit 474 finding no conspiracy is misplaced. That case concerned the tort of conspiracy, which has different elements from champerty. The absence of conspiracy does not preclude a finding of champerty. The judgment by Adlin Abdul Majid J in Suit 474 stated: “I am of the view that the elements of the tort of conspiracy to injure had not been proven by the plaintiffs... Specifically, I do not find any agreement or combination of efforts between the defendants for the predominant purpose of injuring the plaintiffs.” [210] The judgment further held: “I am of the view that the assistance rendered and the execution of the power of attorney fall short of acts of conspiracy, as these actions were not taken S/N 1PzIjDqt0UOefhwlhrzh8g with the predominant purpose of injuring the plaintiffs.” [211] This finding addresses the specific tort of conspiracy; it does not address or preclude a finding that the same arrangements constitute champerty contrary to public policy. [212] The present arrangements bear all the hallmarks of champerty. First, Khoo had no pre-existing legitimate interest in the subject matter of the litigation. His interest was created by the champertous agreements themselves. [213] Second, Khoo provided assistance and services to enable Syed Hamzah to pursue the litigation. The exact nature of these services is not fully detailed, but the Declaration of Trust contemplates ongoing provision of assistance. Khoo testified: “I was approached by the late Syed Hamzah sometime in the year 2006. The late Syed Hamzah asked for my assistance, and I agreed to the same and I provided my assistance to him in his fight.” [214] Third, Khoo stood to receive a substantial share of any proceeds or benefits from the litigation. Under the agreements, he would receive 47.5% of proceeds or, through the share allocation, approximately 23.75% of S/N 1PzIjDqt0UOefhwlhrzh8g Puncak Kenangan. This is not an incidental benefit but the very purpose of the arrangements. [215] Fourth, the litigation was to be prosecuted pursuant to the agreements. The Power of Attorney gave Khoo authority to conduct the litigation. The Agreement for Shares was executed on 26.2.2021, during the pendency of the proceedings, demonstrating that the litigation was being conducted with the champertous arrangement in mind. Khoo himself testified: “This declaration of Trust now gives me legal and beneficial interests, both direct and indirect, legal and beneficial in Puncak Kenangan and interest, both direct and indirect, in the land held by Sitrac and in the project described as Tanarimba, in Janda Baik, Pahang.” [216] Fifth, and most tellingly, the arrangement would enable Khoo to obtain indirectly what he had failed to obtain directly. His Suit 1507 claiming 23% of Sitrac was dismissed. Through the champertous arrangement, if the allotment were cancelled and the shareholding structure altered, he would receive approximately 23.75% of Puncak Kenangan (which itself holds shares in Sitrac). This is not coincidence but design. The evidence demonstrates a deliberate scheme to circumvent the finality of the Suit 1597 dismissal. S/N 1PzIjDqt0UOefhwlhrzh8g [217] The law’s objection to champerty is not merely technical. Champertous arrangements create a risk that litigation will be pursued or defended not for the purpose of vindicating genuine rights but for the commercial benefit of the intermeddler. They may encourage parties to pursue claims they would not otherwise pursue, or to continue litigation they would otherwise settle. They introduce into litigation financial considerations that may conflict with the fair and just resolution of disputes. As stated in Otech Pakistan Pvt Ltd v Clough Engineering Ltd [2006] SGCA 46, the Singapore Court of Appeal held: “Champerty was raised by Clough as one of its defences to Otech’s claim. Clough relied on the well-established doctrine that a champertous contract offends public policy and therefore is unenforceable. As Cheshire, Fifoot and Furmston’s Law of Contract (Butterworths Asia, 2nd Singapore and Malaysian Ed, 1998) put it at p 639, champerty exists where one party agrees to aid another to bring a claim on the basis that the person who gives the aid shall receive a share of what may be recovered in the action. Public policy is offended by such an agreement because of its tendency to pervert the due course of justice.” [218] In the present case, these concerns are vividly illustrated. The evidence demonstrates that Syed Hamzah’s pursuit of OS 142 was motivated not by a genuine belief in the wrongfulness of the 1993 allotment (which he himself had S/N 1PzIjDqt0UOefhwlhrzh8g approved and benefited from) but by the potential financial benefit to Khoo under the champertous arrangement. The systematic concealment of material facts, the exclusion of interested parties, and the repeated attempts to relitigate issues can all be understood as manifestations of a litigation strategy driven by champertous considerations rather than the pursuit of justice. [219] I am reinforced in this conclusion by the timing of the agreements relative to the litigation. The Declaration of Trust and Power of Attorney were executed in May 2016, approximately two years before the Section 602 applications were filed with SSM in April 2018. The agreements thus predated and contemplated the litigation that would follow. This is precisely the kind of arrangement the law regards as champertous, namely agreements made in anticipation of litigation, giving a stranger a financial interest in its outcome. [220] The Agreement for Shares, executed on 26.2.2021, represents a further development of the champertous scheme. By this time, Syed Hamzah’s mental capacity was seriously in question, and just over one month later, on 5.4.2021, he was declared unfit to testify. He passed away on 18.7.2021. The timing raises the question whether Syed Hamzah truly understood the agreement or whether it was driven by Khoo’s interests under the prior champertous S/N 1PzIjDqt0UOefhwlhrzh8g arrangements. When Syed Sazlee was cross-examined, he testified: “I can confirm that my father, despite being in his 80s, was very clear in his thoughts about this case and when he sat with me, Mr. Khoo and the lawyers, he was clear in what he wanted to achieve.” [221] However, this testimony must be weighed against the medical evidence and the fact that Syed Hamzah was declared unfit to testify shortly after executing the Agreement for Shares. [222] Syed Sazlee and Khoo have suggested that the Court should not find the agreements champertous because no formal declaration of their invalidity has been sought. This submission misunderstands the nature of champerty. Champertous agreements are void by operation of law as being contrary to public policy under Section 24(e) of the Contracts Act 1950. No formal declaration is required. When a court determines that an agreement is champertous, that is not a discretionary declaration but a recognition of the agreement’s inherent invalidity. [223] Moreover, the present proceedings do seek declarations regarding the champertous nature of the agreements. Puncak Kenangan’s statement of claim expressly pleads S/N 1PzIjDqt0UOefhwlhrzh8g that the agreements are champertous and seeks relief accordingly. The Issues to be Tried specifically include: “Whether the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 are champerty agreements and otherwise champertous instruments.” [224] I find that the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 are champertous agreements and otherwise champertous instruments that are void and unenforceable as being contrary to public policy under Section 24(e) of the Contracts Act 1950. [225] I further find that OS 142 was instituted and brought pursuant to these champertous arrangements. The litigation was conceived, structured and prosecuted in furtherance of the champertous scheme whereby Khoo would obtain a substantial benefit if the allotment were cancelled. The Power of Attorney expressly authorised Khoo to prosecute actions on Syed Hamzah’s behalf, and the entire arrangement was designed to enable Khoo to achieve through champerty what he had failed to achieve through legitimate litigation in 1992. S/N 1PzIjDqt0UOefhwlhrzh8g [226] This provides an additional and independent ground for setting aside both the Consent Order and OS 142 itself. Courts will not allow their processes to be used to give effect to champertous arrangements. An order obtained in proceedings instituted pursuant to champerty is liable to be set aside as having been procured by an unlawful scheme contrary to public policy. Syed Sazlee’s Involvement [227] Puncak Kenangan submits that Syed Sazlee was privy to the champertous arrangements and facilitated both the champerty and OS 142. Puncak Kenangan contends that Syed Sazlee was, at all material times, fully aware of the champertous arrangements between Syed Hamzah and Khoo and actively facilitated and even participated in the arrangements. [228] Puncak Kenangan relies on evidence of Syed Sazlee’s involvement including: his presence and role during the prosecution of OS 142; his application for probate on 4.8.2021 in which he exhibited the Agreement for Shares dated 26.2.2021 as part of Syed Hamzah’s assets; his knowledge of the champertous arrangements; and his continuation of the litigation in these consolidated suits. Most significantly, Puncak Kenangan points to the Agreement for Shares dated 26.2.2021, which was not only executed by Syed Hamzah and Khoo but was also S/N 1PzIjDqt0UOefhwlhrzh8g witnessed by Syed Sazlee, who further signed a formal Declaration attached to the agreement in which he expressly consented and agreed to the terms and conditions of the Agreement for Shares. [229] Puncak Kenangan submits that in this Declaration, Syed Sazlee declared as follows: “I, Syed Sazlee bin Syed Hamzah, (NRIC No.: 610926-02-5059) of No. 5, Jalan Maktab 5, Kampung Datuk Keramat, 54000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur do hereby acknowledge consent and agree to the terms and conditions of the above Agreement for Shares dated 26 February 2021. I further agree and understand and aware of the consequences of the said agreement and that I have no objections whatsoever to its execution by the said parties abovenamed.” [230] This Declaration was dated 26.2.2021, some five months before Syed Hamzah’s death on 18.7.2021. [231] Syed Sazlee and Khoo submit that Syed Sazlee acted merely as the legal personal representative of his father’s estate and had no involvement in the original procurement of the Consent Order in 2019. They contend that his role has been that of an executor carrying out his duties in relation to Syed Hamzah’s estate. S/N 1PzIjDqt0UOefhwlhrzh8g [232] I find that whilst Syed Sazlee’s role in the original procurement of the Consent Order in 2019 was limited, as he was not actively involved in the filing or prosecution of OS 142 at that time, he has subsequently become involved in the champertous arrangements and has facilitated the attempt to enforce or benefit from the Consent Order. [233] Most significantly, Syed Sazlee exhibited the Agreement for Shares dated 26.2.2021 in his probate application filed on 4.8.2021. Sharifah Shaheera testified that “This is 1st Defendant’s Affidavit In Support for his application for Grant of Probate in respect of the estate of Syed Hamzah wherein the Agreement for Shares dated 26.2.2021 was included as part of Syed Hamzah’s assets.” This demonstrates his knowledge of the champertous arrangement and his recognition of it as a valid and enforceable asset of his father’s estate. By treating the champertous agreement as a subsisting asset of the estate and including it in the probate application, he has sought to give effect to an agreement that I have found to be void as contrary to public policy under Section 24(e) of the Contracts Act 1950. [234] Furthermore, Syed Sazlee’s involvement extends beyond passive representation of the estate. He personally witnessed the execution of the Agreement for Shares dated 26.2.2021 and signed a formal Declaration attached to that agreement. In that Declaration, executed on 26.2.2021, he S/N 1PzIjDqt0UOefhwlhrzh8g expressly stated that he acknowledged, consented to and agreed to the terms and conditions of the Agreement for Shares, that he fully understood and was aware of the consequences of the agreement, and that he had no objection whatsoever to its execution by the parties. This Declaration demonstrates that Syed Sazlee was not merely a passive executor but an active participant who gave his formal consent to the champertous arrangement whilst his father was still alive. [235] Moreover, in defending these consolidated proceedings, Syed Sazlee has aligned himself with Khoo and has advanced arguments designed to uphold the Consent Order notwithstanding the fraud, concealment, and champerty involved in its procurement. He has pursued the litigation in these consolidated suits in a manner that seeks to give effect to and benefit from the champertous arrangements. Whilst this is not determinative of the main issues, it reinforces the pattern of conduct whereby the champertous arrangements have been pursued notwithstanding their invalidity and the fraudulent means by which the Consent Order was obtained. SUIT 319: ANALYSIS AND FINDINGS OF THE COURT [236] The legal and factual issues in Suit 319 substantially overlap with those in Suit 221, as both suits challenge the same Consent Order dated 20.6.2019 in OS 142 on the S/N 1PzIjDqt0UOefhwlhrzh8g same grounds of fraud, mental capacity, abuse of process, breach of natural justice and champerty. However, Suit 319 involves different Plaintiffs (Ngan and AT Masters) who have their own standing as affected shareholders, and seek specific relief sought regarding the declaration of illegality and bad faith. [237] I therefore address the grounds advanced by Ngan and AT Masters in Suit 319 systematically, applying the findings made in Suit 221 where the issues are identical, but analysing the specific submissions and circumstances relevant to Ngan and AT Masters. Fraudulent Non-Disclosure or Suppression of Material Facts [238] Ngan and AT Masters submit that Syed Hamzah systematically concealed material facts from the Court and SSM in OS 142, deliberately perpetrating the impression that: a) the 50,000 shares were allotted without his knowledge or approval; b) the sale of 75,000 Sitrac shares was unauthorised; and c) he was acting alone with no influence from others, when all three representations were false. S/N 1PzIjDqt0UOefhwlhrzh8g [239] Ngan and AT Masters emphasise that as shareholders in Puncak Kenangan (Ngan directly and through AT Masters), they were directly affected parties whose shareholdings would be fundamentally altered if the rectification succeeded. Yet they received no notice of OS 142 and had no opportunity to draw the Court’s attention to the concealed facts. [240] Ngan and AT Masters submit that the concealed facts include all those identified by Puncak Kenangan in Suit 221, with particular emphasis on: a) Syed Hamzah’s role as Director and Chairman of both Puncak Kenangan and Sitrac in 1992; b) his execution of the circular resolution dated 5.5.1992 for Sitrac and the Member’s Circular Resolution dated 17.4.1992 for Puncak Kenangan authorising the sale and transfer; c) his knowledge and awareness of the sale of Sitrac shares from Puncak Kenangan to Kelana Jati; d) the prior Suit 1507 in which Khoo’s claims were dismissed at all levels; e) the police reports made by Syed Hamzah against Syed Mustaffa in 2006 and 2013; and S/N 1PzIjDqt0UOefhwlhrzh8g f) the counter-report by Syed Mustaffa in 2007. [241] Syed Sazlee and Khoo advance substantially the same defences as in Suit 221, contending that the Consent Order was merely procedural and that the matters raised are only relevant for the substantive hearing before SSM. [242] For the reasons set out in detail in my analysis of Suit 221 at paragraphs 82 to 116 above, I find that Syed Hamzah engaged in systematic and deliberate concealment of material facts satisfying all elements of the Royal Bank of Scotland test for fraud. [243] The findings regarding Syed Hamzah’s involvement in the 1993 allotment, his approval of the Sitrac share transfer, his pledging and disposal of his own allotted shares, the concealment of Khoo’s failed 1992 litigation, the concealment of the OS 131 connection, the concealment of champertous arrangements, and the concealment of mental capacity concerns all apply with equal force in Suit 319. [244] Ngan and AT Masters in Suit 319, as shareholders in Puncak Kenangan, had direct and substantial interests that would be affected by any rectification of Puncak Kenangan’s register. Ngan holds shares in Puncak Kenangan both directly and through AT Masters. The allotment in 1993 created the current shareholding S/N 1PzIjDqt0UOefhwlhrzh8g structure. If cancelled, Ngan’s and AT Masters’s proportionate interests would be fundamentally altered. [245] Moreover, Ngan has a particular connection to the concealed facts. As noted at paragraph 12 above, Syed Hamzah pledged his 5,000 allotted shares to Ngan as security for loans totalling RM300,000.00. When Syed Hamzah defaulted, these shares were transferred to Ngan and/or AT Masters pursuant to the loan agreements. The fact that Syed Hamzah received shares from the allotment, used them for his own benefit by pledging them to Ngan, and then sought to challenge the very allotment from which he had benefited, without disclosing any of this to the Court or SSM, demonstrates the egregious nature of the concealment. [246] Ngan and AT Masters also emphasise Syed Hamzah’s detailed knowledge of the 1992 sale of Sitrac shares. As established in the evidence, Syed Hamzah was Director and Chairman of both Sitrac and Puncak Kenangan in

He executed the circular resolutions authorising the transfers. He had access to all corporate secretarial documents and was in a position to know all details of the transactions. Yet in OS 142, he characterised the sale as “unauthorised” and implied he had no knowledge of or involvement in it. S/N 1PzIjDqt0UOefhwlhrzh8g [247] Ngan and AT Masters further rely on the history of prior litigation and complaints. Khoo’s Suit 1507 raised issues about the share transfers and was dismissed at all levels after full trial, appeal, and application for leave to the Federal Court. Syed Hamzah made police reports in 2006 and 2013 against Syed Mustaffa regarding the same transactions. Syed Mustaffa responded with a counter-report in 2007. This extensive history of challenges and counter-challenges, all concerning the same underlying transactions, was entirely concealed from the Court in OS

[248] The connection between OS 131 and OS 142 is particularly significant. The letter dated 18.6.2019 from Messrs Thomas Philip to the Court explicitly stated that the Consent Order in OS 142 was being entered because a similar order had been made in OS 131 concerning related facts. OS 131 was subsequently impeached for fraud on 18.10.2021 in Suit 623. The fact that Syed Hamzah was pursuing OS 142 immediately following OS 131, using the OS 131 order as justification for the OS 142 Consent Order, and that OS 131 was later found to have been obtained by fraud, was highly material information that should have been disclosed. [249] I accept Ngan and AT Masters’ submission that the concealment was conscious and deliberate, designed to present a misleading narrative. The affidavit in support of S/N 1PzIjDqt0UOefhwlhrzh8g OS 142 carefully curated what to include and what to exclude. It presented Syed Hamzah as an innocent shareholder discovering unauthorised transactions, when the truth was that he was intimately involved in, approved, and benefited from those very transactions. [250] The materiality of the concealed facts is beyond question. Had the Court known that Syed Hamzah was Chairman and Director who approved the allotment and transfers, received and benefited from allotted shares, and was acting pursuant to champertous arrangements with Khoo (whose own similar claims had been dismissed in 1992), the Court could not in good conscience have granted the order, even by consent. [251] SSM’s statutory decision-making would likewise have been fundamentally affected. As a regulatory body charged with maintaining the integrity of company registers, SSM is entitled to know the full facts. The concealment of Syed Hamzah’s involvement, his beneficial use of allotted shares, the champertous motivation, and the history of prior litigation deprived SSM of essential information for exercising its discretionary powers under Section 602 of the Companies Act 2016. [252] The test in Royal Bank of Scotland requires that the concealed material be causative of the impugned judgment being obtained. I am satisfied this requirement is met. The S/N 1PzIjDqt0UOefhwlhrzh8g fresh evidence of systematic concealment, when revealed, entirely changes the approach to OS 142. What appeared to be a legitimate shareholder complaint becomes exposed as a champertously-motivated attempt to relitigate matters already determined, prosecuted by someone who himself orchestrated and benefited from the transactions he seeks to impugn. [253] I therefore find that the Consent Order dated 20.6.2019 was obtained by fraud through conscious and deliberate concealment of material facts by Syed Hamzah, with Khoo complicit through his role in and benefit from the champertous arrangements. Mental Capacity of Syed Hamzah [254] Ngan and AT Masters submit that Syed Hamzah had been suffering from dementia since at least 2017, that he was prescribed medication for Alzheimer’s disease, and that by 5.4.2021 he was declared unfit to testify in Suit 623. They contend that serious questions existed about his mental capacity to conduct litigation when OS 142 was filed in January 2019 and the Consent Order entered in June 2019. [255] Ngan and AT Masters rely on the evidence of Dr Wan Izwin (the Defendants’ expert witness), whose testimony established the requirements for mental capacity S/N 1PzIjDqt0UOefhwlhrzh8g assessment and confirmed that dementia is a progressive condition affecting cognitive function. They also rely on Dr Soraya’s testimony in Suit 623 indicating signs of dementia from 2017, and the medical report from Hospital Angkatan Tentera Tuanku Mizan diagnosing Mixed Dementia in October 2021. [256] Ngan and AT Masters submit that the failure to disclose these capacity concerns to the Court and SSM constitutes a material non-disclosure, particularly when Syed Hamzah was purporting to give instructions in complex litigation involving allegations of fraud, corporate governance, and 30 years of historical transactions. [257] Ngan and AT Masters submit that there is no evidence Syed Hamzah lacked capacity in 2019, and that the medical evidence only emerged later in 2021. [258] For the detailed reasons set out in my analysis of Suit 221 at paragraphs 126 to 143 above, I find that serious and compelling questions existed about Syed Hamzah’s mental capacity during the relevant period. [259] The temporal progression is crucial. The CT scan showed abnormalities in January 2018. Signs of dementia were apparent by 2017 according to Dr Soraya’s testimony. OS 142 was filed in January 2019 and the Consent Order entered in June 2019 - during this period of emerging S/N 1PzIjDqt0UOefhwlhrzh8g cognitive decline. By April 2021, Syed Hamzah could not attend court. By 5.4.2021, he was declared unfit to testify. He passed away on 18.7.2021. By 4.10.2021, he was formally diagnosed with Mixed Dementia. [260] This timeline demonstrates that the cognitive impairment observed in 2021 was not sudden but the culmination of a progressive condition manifesting since at least 2017-2018, encompassing the period of OS 142. [261] Dr Wan Izwin’s evidence, though she was called by the Defendants, in fact supports Ngan and AT Masters’ case. She explained that a Mental Capacity Assessment using a functional test is required to determine if a person can manage their affairs, examining whether the person can: understand relevant information; retain it long enough to make a voluntary choice; use or weigh up information in decision-making; and communicate their decision. [262] No such assessment was conducted before OS 142 was filed or the Consent Order entered. The evidence suggests Syed Hamzah’s cognitive function was deteriorating during this period, raising serious doubts about his capacity to: understand complex corporate and legal issues spanning 30 years; appreciate inconsistencies between his complaints and his own documented involvement; retain information to give coherent instructions; weigh S/N 1PzIjDqt0UOefhwlhrzh8g implications of champertous arrangements; and make informed decisions about litigation conduct. [263] The critical point for Ngan and AT Masters in Suit 319, as with Puncak Kenangan in Suit 221, is not whether this Court can now definitively find that Syed Hamzah lacked capacity in 2019, but that serious questions existed which should have been disclosed to the Court and SSM but were deliberately concealed. [264] The failure to obtain or disclose any medical assessment, coupled with the prosecution of complex litigation by someone exhibiting signs of progressive dementia, amounts to material non-disclosure contributing to the fraudulent procurement of the Consent Order. Abuse of Court Process and Breach of Natural Justice [265] Ngan and AT Masters submit that OS 142 was deliberately structured to exclude them and other interested parties from participating, constituting fundamental breach of natural justice and abuse of process. [266] Ngan and AT Masters, as shareholders in Puncak Kenangan, had direct interests in the register of members. Any rectification invalidating the 1993 allotment would alter their shareholdings and potentially affect their rights. Yet they were not named as parties, not served with the S/N 1PzIjDqt0UOefhwlhrzh8g Originating Summons, and had no opportunity to oppose the application. [267] Ngan and AT Masters submit that the bilateral Consent Order between Syed Hamzah and SSM, excluding all affected parties, violated the fundamental principle that persons whose rights may be affected are entitled to notice and opportunity to be heard. [268] Ngan and AT Masters further submit that OS 142 constituted impermissible multiplicity of proceedings, being the latest in a series starting with Khoo’s Suit 1507, Syed Hamzah’s 2006 and 2013 complaints, OS 131 in March 2019 (subsequently impeached), and OS 142 in January 2019. [269] The Defendants submit that the Consent Order required notice to interested parties before SSM’s reconsideration, and that parties would have opportunity to participate at that stage. [270] For the reasons set out at paragraphs 151 to 176 in my analysis of Suit 221, I find that OS 142 was deliberately structured to preclude interested parties from participating, constituting both abuse of process and breach of natural justice. S/N 1PzIjDqt0UOefhwlhrzh8g [271] Ngan and AT Masters in Suit 319 stand in an even stronger position than Puncak Kenangan to assert breach of natural justice. As individual shareholders (Ngan directly, and through AT Masters), their proprietary interests would be directly affected by any rectification. Ngan had the additional connection of having received Syed Hamzah’s 5,000 shares when he defaulted on loan obligations. AT Masters acquired shares through various transfers approved by Syed Hamzah over the years. Both had clear, direct, and substantial interests in the register’s integrity. [272] Yet neither Ngan nor AT Masters was named as a party to OS 142. Neither received any notice of the proceedings. Neither had any opportunity to inform the Court of Syed Hamzah’s own involvement in the allotment, his approval of Form 24, his receipt and disposal of shares, or the champertous arrangements. [273] The principle audi alteram partem requires that persons whose rights may be affected be given notice and opportunity to be heard. This is not a mere procedural nicety but a fundamental requirement of justice. Where, as here, an application seeks to rectify a company’s register of members, all shareholders with interests that would be affected are entitled to notice. S/N 1PzIjDqt0UOefhwlhrzh8g [274] The Defendants’ argument that interested parties would have opportunity to participate later before SSM does not cure the fundamental breach. By the time SSM reconsidered the application, a Court order would already have been obtained. Ngan and AT Masters would face the fait accompli of a court-mandated investigation, without having had opportunity to oppose the obtaining of that order in the first place. [275] Moreover, as noted in the analysis of Suit 221, the bilateral nature of the Consent Order meant that Ngan and AT Masters were effectively bound by an agreement between Syed Hamzah and SSM - an agreement to which they were not party, about which they had no knowledge, and which directly affected their proprietary rights. [276] The exclusion was deliberate. Syed Hamzah and his advisors knew that Ngan and AT Masters were shareholders with substantial interests. Ngan was well-known to Syed Hamzah, having provided the loans secured by Syed Hamzah’s shares. The choice to proceed by way of bilateral Consent Order with only SSM as defendant was a calculated stratagem to avoid opposition. [277] The exclusion enabled the concealment to go unchallenged. Had Ngan or AT Masters been served, they would have been able to inform the Court of: Syed Hamzah’s involvement in the transactions; the loan S/N 1PzIjDqt0UOefhwlhrzh8g agreements and share transfers; Ngan’s appointment as director of Sitrac in 1992; the history of prior litigation; and potentially the champertous arrangements (depending on when they became aware of these). [278] I also find merit in Ngan and AT Masters’ submission regarding multiplicity of proceedings. The pattern is clear: a) First, Khoo’s Suit 1507 challenging the share structure and seeking 23% of Sitrac was dismissed at all levels. b) Second, Syed Hamzah’s 2006 complaint to SSM about the allotment was investigated by SSM. c) Third, Syed Hamzah’s 2013 police report against Syed Mustaffa was met with counter-report in 2007. d) Fourth, OS 131 in March 2019 regarding Sitrac’s register was impeached for fraud in October 2021. e) Fifth, OS 142 in January 2019 regarding Puncak Kenangan’s register is the subject of the present proceedings. [279] This repeated litigation of substantially similar issues over decades, particularly when prior determinations have been S/N 1PzIjDqt0UOefhwlhrzh8g adverse and when new proceedings are prosecuted pursuant to champertous arrangements, constitutes an abuse of the Court’s process. [280] I therefore find that OS 142 was deliberately taken out to preclude Ngan and AT Masters from challenging the claims, constituting fundamental breach of natural justice and abuse of court process. Champerty and Illegality [281] Ngan and AT Masters submit that the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016, and the Agreement for Shares dated 26.2.2021 constitute champertous arrangements void as contrary to public policy under Section 24(e) of the Contracts Act 1950. [282] Ngan and AT Masters emphasise that Khoo had no legitimate interest in Puncak Kenangan. He was never a shareholder, director, creditor or employee. His interest arose purely from the champertous agreements with Syed Hamzah. [283] Under these agreements, Khoo would receive 47.5% of any proceeds or damages, or approximately 23.75% of Puncak Kenangan (through the 12.5% allocation of Syed Hamzah’s shares contemplated in the Agreement for S/N 1PzIjDqt0UOefhwlhrzh8g Shares) - remarkably close to the 23% he had unsuccessfully claimed in his 1992 suit. [284] Ngan and AT Masters submit that this arrangement was designed to enable Khoo to obtain through champerty what he failed to obtain through litigation, by “piggybacking” on Syed Hamzah’s single share in the pre-allotment structure. [285] Ngan and AT Masters seek a specific declaration that the actions of Syed Hamzah and Khoo in filing OS 142 and obtaining the Consent Order were pursuant to champertous and usurious arrangements and are therefore tainted with illegality and bad faith, amounting to an abuse of process. [286] Syed Sazlee and Khoo submit that Khoo has legitimate interest by virtue of being a beneficiary under the Declaration of Trust, an attorney under the Power of Attorney, and a party to the Agreement for Shares. They contend these capacities give him standing and that he is not a stranger to the proceedings. [287] For the detailed reasons set out in my analysis of Suit 221 at paragraphs 189 to 226 above, I find that all three agreements constitute champertous arrangements void as contrary to public policy under Section 24(e) of the Contracts Act 1950. S/N 1PzIjDqt0UOefhwlhrzh8g [288] The findings regarding Khoo’s lack of independent legitimate interest, the characteristics of the arrangements as champertous, the timing of the agreements in anticipation of litigation, and the design to enable Khoo to obtain what he failed to obtain when Suit 1507 was dismissed on 28.2.2011 all apply equally in Suit 319. [289] Ngan and AT Masters in Suit 319 have particular standing to challenge the champertous nature of the arrangements. As shareholders in Puncak Kenangan, they have direct interest in ensuring that litigation concerning Puncak Kenangan’s register is conducted legitimately and not pursuant to arrangements contrary to public policy. [290] The mathematics of the champertous arrangement warrant emphasis. If the 1993 allotment were cancelled, Puncak Kenangan would revert to having only 2 shares (one held by Syed Hamzah or his estate, one by Syed Mustaffa’s successors), each representing 50%. Khoo’s 12.5% of Syed Hamzah’s shareholding under the Agreement for Shares would equal 12.5% of 50% = 6.25%. However, the Agreement contemplates that if Syed Hamzah succeeds in obtaining 23% of Sitrac shares against Puncak Kenangan, he would allocate shares to Khoo such that Khoo would receive 47.5% of whatever Syed Hamzah ultimately held. S/N 1PzIjDqt0UOefhwlhrzh8g [291] The practical effect is that Khoo would end up with approximately 23.75% of Puncak Kenangan. This is not coincidence. Khoo claimed 23% of Sitrac in his 1992 suit. That claim was dismissed. Through the champertous arrangement, if the allotment were cancelled and the shareholding reverted to the original 1:1 structure, Khoo would receive 23.75% - effectively achieving through champerty what litigation failed to achieve. [292] This demonstrates the very evil that the law against champerty seeks to prevent: a stranger to a dispute with no legitimate interest engineering litigation in another’s name for his own financial benefit, distorting the proper administration of justice by introducing commercial considerations divorced from the merits. [293] Syed Sazlee and Khoo’s submission that Khoo has interest “by virtue of” the challenged agreements is circular reasoning. One cannot create legitimate interest by entering into a champertous agreement. The agreements themselves are void. They confer no rights and create no legitimate interest. [294] The law asks whether Khoo had a legitimate interest independent of the champertous agreements. The answer is plainly no. He had no shareholding, directorship, creditor relationship, or any other legitimate connection to Puncak S/N 1PzIjDqt0UOefhwlhrzh8g Kenangan. His sole connection was through Syed Hamzah and the void agreements. [295] The Power of Attorney giving Khoo authority to “prosecute the actions” and “receive the proceeds” on Syed Hamzah’s behalf, combined with the Declaration of Trust entitling Khoo to 47.5% of proceeds, and the Agreement for Shares formalizing the share allocation, created precisely the kind of champertous arrangement that the law condemns: litigation prosecuted not for vindication of rights but for commercial benefit of an intermeddler. [296] OS 142 was instituted and prosecuted pursuant to these champertous arrangements. The litigation was conceived with the agreements in place. The Declaration of Trust and Power of Attorney were executed in May 2016, approximately two years before the Section 602 applications were filed with SSM in April 2018. The Agreement for Shares, executed on 26.2.2021 during the pendency of proceedings, confirmed and detailed the arrangement. [297] I therefore find that the Declaration of Trust, Power of Attorney and Agreement for Shares are champertous and void, and that OS 142 was instituted pursuant to these champertous arrangements. S/N 1PzIjDqt0UOefhwlhrzh8g [298] I further grant the specific declaration sought by Ngan and AT Masters that the actions of Syed Hamzah and Khoo in filing OS 142 and obtaining the Consent Order were pursuant to champertous and usurious arrangements and are therefore tainted with illegality and bad faith and amount to an abuse of process. ADDRESSING THE ISSUES TO BE TRIED Suit 221 [299] Having set out my detailed analysis, I now formally address each of the eighteen Issues to be Tried that were agreed by the parties in Suit 221. Issue 1 [300] Issue 1 is set out as follows: Whether the Consent Order obtained on part of Syed Hamzah in OS 142 was carried out and procured by way of collusion, deception and/or deliberate concealment of material facts on the part of Syed Hamzah. [301] This is answered in the affirmative. For the reasons set out in detail at paragraphs 82 to 116 above, I find that the Consent Order was procured by conscious and deliberate S/N 1PzIjDqt0UOefhwlhrzh8g concealment of material facts constituting fraud. The concealment satisfies the test for fraud established in Royal Bank of Scotland v Highland Financial Partner [supra], which requires conscious and deliberate dishonesty in relation to material facts that were causative of the impugned judgment being obtained. Issue 2 [302] Issue 2 is set out as follows: Whether OS 142 was deliberately taken out in the manner it was to preclude Puncak Kenangan from challenging the claims therein in abuse of court process. [303] This is answered in the affirmative. For the reasons set out at paragraphs 144 to 176 above, I find that OS 142 was deliberately structured to exclude Puncak Kenangan and other interested parties. The choice to name only SSM as defendant and to enter a bilateral Consent Order without notice to affected parties was a deliberate stratagem to avoid scrutiny and opposition. This constitutes both an abuse of process and a breach of natural justice. Issue 3 [304] Issue 3 is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether the matters in items 1 and 2 above on the part of Syed Hamzah were carried out by Syed Hamzah himself, Syed Sazlee and/or Khoo. [305] This is answered as follows. The fraud and abuse of process were carried out primarily by Syed Hamzah himself. As set out at paragraphs 227 to 235 above, Syed Sazlee’s involvement in the original procurement was limited, though he subsequently became involved by exhibiting the champertous Agreement for Shares in his probate application. Khoo was complicit through his role in the champertous arrangements detailed at paragraphs 288 to 299 above, having a direct financial interest in the outcome through the Declaration of Trust, Power of Attorney and Agreement for Shares. Issue 4 [306] Issue 4 is set out as follows: Whether OS 142 and the Consent Order dated 20.6.2019 were actuated in bad faith, misconceived in law and in abuse of court process. [307] This is answered in the affirmative. OS 142 and Consent Order were actuated in bad faith, as demonstrated by the systematic concealment of material facts, the deliberate exclusion of interested parties, and the prosecution of proceedings pursuant to champertous arrangements. The S/N 1PzIjDqt0UOefhwlhrzh8g abuse of process is established by the findings at paragraphs 265 to 280 above. Issue 5 [308] Issue 5 is set out as follows: Whether the Consent Order dated 20.6.2019 obtained on part of Syed Hamzah is a nullity for being in breach of natural justice as Puncak Kenangan was deprived of the right of being heard. [309] This is answered in the affirmative. As set out at paragraphs 270 to 280 above, Puncak Kenangan, whose register of members was the subject of the Rectification Application, was deliberately excluded from OS 142. No notice was given to Puncak Kenangan and no opportunity was afforded to oppose the application or draw the Court’s attention to material facts. This constitutes a fundamental breach of the principle of audi alteram partem. The bilateral Consent Order, entered between Syed Hamzah and SSM without participation by affected parties, violated basic principles of natural justice. Issue 6 [310] Issue 6 is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether it was properly disclosed to the Court in OS 142 and drawn to the Court’s attention the following necessary, relevant and/or material facts in relation to the allotment:

that Syed Hamzah had knowledge and was involved in the allotment of shares as he was the then director of Puncak Kenangan and also a shareholder.

that Syed Hamzah presided as Chairman of the Board of Directors’ meetings on 9.12.1992 and 6.1.1993 and approved the resolution to increase Puncak Kenangan’s authorised share capital.

that Syed Hamzah chaired the Board of Directors’ meetings on 10.12.1992 and 6.1.1993 and approved the resolution in respect allotment of the 50,000 shares in Puncak Kenangan.

that on 16.8.1993, Syed Hamzah approved the Return of Allotment of Shares (Form 24) in respect of the allotment of the 50,000 shares to the allottees.

that Syed Hamzah himself was allotted with 5,000 shares from the allotment of shares.

that Syed Hamzah benefited from the allotment of the shares by pledging his 5,000 S/N 1PzIjDqt0UOefhwlhrzh8g shares to one Ngan in consideration of loans amounting to RM300,000.00 vide loan agreement dated 12.7.1994 and supplementary agreement dated 15.12.1994. However due to Syed Hamzah’s failure to repay the loan sum, Syed Hamzah’s shares were transferred to Ngan in accordance with the loan agreements.

that the issue in respect of the sale of the 75,000 shares in Sitrac had been brought up and ventilated in Court vide Suit 1507. The case on the part of Khoo for rectification of the share register was dismissed by the High Court and the appeals to the Court of Appeal and leave to appeal to the Federal Court were likewise dismissed with costs. [311] Issue 6(a) in answered in the negative. This critical fact was not disclosed. The evidence at paragraphs 89 to 91 above establishes that Syed Hamzah was Chairman and Director of Puncak Kenangan at all material times during 1992-1993. He chaired the Board meetings that resolved to allot the shares and signed the EGM minutes approving the allotment. None of this was disclosed in OS 142. [312] Issue 6(b) in answered in the negative. This was not disclosed. The documentary evidence shows Syed Hamzah’s active participation in the corporate governance processes leading to the allotment, yet OS 142 presented him as an uninvolved shareholder. S/N 1PzIjDqt0UOefhwlhrzh8g [313] Issue 6(c) in answered in the negative. As detailed at paragraphs 90 to 91 above, Syed Hamzah chaired the Board meeting on 10.12.1992 which resolved to convene an EGM to approve the allotment, and signed the minutes of the EGM on 6.1.1993 at which the allotment was approved. This involvement was not disclosed. [314] Issue 6(d) in answered in the negative. As found at paragraphs 89 to 91 above, Syed Hamzah signed Form 24 on 16.8.1993, certifying that the allotment took the form of a cash allotment. This approval was not disclosed in OS

[315] Issue 6(e) in answered in the negative. As detailed at paragraph 92 above, Syed Hamzah was himself an allottee, receiving 5,000 of the 50,000 shares. He personally benefited from the very allotment he later sought to challenge. This was not disclosed. [316] Issue 6(f) in answered in the negative. As found at paragraph 92 above, Syed Hamzah pledged his 5,000 shares as security for loans from Ngan, and upon default, the shares were transferred to Ngan and/or AT Masters. This demonstrated his beneficial use of the allotted shares and his acceptance of their validity. None of this was disclosed. S/N 1PzIjDqt0UOefhwlhrzh8g [317] Issue 6(g) in answered in the negative. As detailed at paragraph 98 above, Khoo’s Suit 1507 seeking 23% of Sitrac shares (effectively seeking to challenge the share transfers) was dismissed at all levels. This highly relevant prior litigation establishing the legitimacy of the transactions and demonstrating Khoo’s failed attempt to obtain what he now sought through champertous arrangements was not disclosed. Issue 7 [318] Issue 7 is set out as follows: Whether OS 142 has any connection with Summons No. 131, and if so, whether the Consent Order dated 20.6.2019 in OS 142 was recorded following the Order dated 21.5.2019 in OS 131. [319] This is answered in the affirmative to both parts. As stated at paragraphs 19 to 23 above, OS 131 concerned Sitrac’s register and resulted in an order on 21.5.2019 directing reconsideration with notice to interested parties. The letter dated 18.6.2019 from solicitors expressly stated that the Consent Order in OS 142 was being entered because a similar order had been made in OS 131. The terms mirrored each other. Critically, OS 131 was subsequently impeached for fraud on 18.10.2021. The connection S/N 1PzIjDqt0UOefhwlhrzh8g between the proceedings and the prior impeachment were not disclosed in OS 142. Issue 8 [320] Issue 8 is set out as follows: Whether the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 are champerty agreements and otherwise champertous instruments. [321] This is answered in the affirmative. For the reasons set out at paragraphs 189 to 226 above, all three agreements constitute champertous arrangements. They conferred upon Khoo, a stranger with no legitimate interest in Puncak Kenangan, a substantial financial interest in litigation pursued in Syed Hamzah’s name, with the intention of enabling him to obtain indirectly what he had failed to obtain through his dismissed Suit 1507. The agreements are void as being contrary to public policy under Section 24(e) of the Contracts Act 1950. Issue 9 [322] Issue 9 is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether the Declaration of Trust dated 13.5.2016, the Power of Attorney dated 19.5.2016 and the Agreement for Shares dated 26.2.2021 are valid and enforceable instruments supported by lawful consideration. [323] This is answered in the negative. Being champertous agreements contrary to public policy, they are void and unenforceable under Section 24(e) of the Contracts Act 1950. Issue 10 [324] Issue 10 is set out as follows: Whether OS 142 was instituted and brought pursuant to the champerty arrangements and against public policy, unlawful and forbidden by law. [325] This is answered in the affirmative. As found at paragraphs 225 to 226 above, OS 142 was conceived, instituted and prosecuted pursuant to the champertous arrangements. The entire scheme was designed to enable Khoo to benefit from the outcome of the litigation. Proceedings prosecuted pursuant to champertous arrangements are against public policy and unlawful. S/N 1PzIjDqt0UOefhwlhrzh8g Issue 11 [326] Issue 11 is set out as follows: Whether Syed Sazlee was privy to the champerty arrangements between Syed Hamzah and Khoo and had facilitated the champerty and OS 142. [327] This is answered as follows. While Syed Sazlee’s involvement in the original procurement of the Consent Order was limited, he subsequently demonstrated knowledge of and involvement in the champertous arrangements by exhibiting the Agreement for Shares in his probate application and defending these proceedings in alignment with Khoo’s interests, thereby facilitating the attempted enforcement of arrangements void as contrary to public policy. Issue 12 [328] Issue 12 is set out as follows: Whether Puncak Kenangan’s claim is barred by the doctrine of res judicata and/or issue estoppel and/or cause of action estoppel. [329] This is answered in the negative. The present proceedings concern OS 142 relating to Puncak Kenangan’s register of members, which is distinct from OS 131 (subject matter of S/N 1PzIjDqt0UOefhwlhrzh8g Suit 623). In any event, the doctrine of res judicata does not prevent a fresh action to impeach a judgment obtained by fraud, as established in Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [supra]. Fraud vitiates judgments and provides grounds for setting aside consent orders in a fresh action. As for Suit 474, as explained in paragraphs 209 to 211 above, no issue estoppel is created because its cause of action was strictly confined to the tort of conspiracy to injure and abuse of court process, which is legally and factually distinct from the present suits that seek to impeach a Consent Order based on fraud, concealment of material facts, and champerty. While the Court in Suit 474 found that Khoo’s assistance was intended to protect Syed Hamzah’s interest rather than to injure Khoo, this finding was specific to the elements of conspiracy and does not conclusively determine whether the agreements (the Declaration of Trust, Power of Attorney, and Agreement for Shares) are void for champerty or public policy in the context of setting aside a judgment. Issue 13 [330] Issue 13 is set out as follows: Whether the subject matter of OS 142 is time-barred by laches. S/N 1PzIjDqt0UOefhwlhrzh8g [331] This is answered in the negative. The doctrine of laches does not apply to impeachment actions based on fraud. Fraud vitiates all transactions and judgments. The Consent Order was obtained in 2019 and the present proceedings were filed in 2022 after discovery of the champertous arrangements. The deliberate concealment of material facts precludes any defence based on delay. Issue 14 [332] Issue 14 is set out as follows: Whether Puncak Kenangan is entitled to the reliefs prayed. [333] This is answered in the affirmative for all the reasons set out in this judgment. Puncak Kenangan has established fraud, breach of natural justice, abuse of process and champerty. The reliefs granted are set out in the Orders below in paragraph 475. Issue 15 [334] Issue 15 is set out as follows: Whether SSM or the High Court had considered or decided on the merits of the rectification of Puncak Kenangan’s Register of Members in OS 142. S/N 1PzIjDqt0UOefhwlhrzh8g [335] This is answered in the negative. SSM refused the Section 602 application without conducting a substantive determination on the merits. The High Court in OS 142 did not decide the merits but merely entered a Consent Order directing reconsideration. No substantive adjudication of the legitimacy of the allotment or transfers was made. Issue 16 [336] Issue 16 is set out as follows: Whether the filing of OS 142 and Syed Hamzah’s conduct pertaining to the Consent Order were genuine and bona fide. [337] This is answered in the negative. For the reasons detailed in this judgment, including the findings of conscious and deliberate dishonesty, systematic concealment of material facts, exclusion of interested parties and champertous motivation, the conduct was neither genuine nor bona fide. The proceedings were actuated by bad faith. Issue 17 [338] Issue 17 is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether Puncak Kenangan is estopped from relying on the Agreement for Shares dated 26.2.2021 on grounds of confidentiality. [339] This is answered in the negative. The Agreement was exhibited in probate proceedings and thereby placed on the public record. Once exhibited in court proceedings, it cannot be shielded by claims of confidentiality. Moreover, documents evidencing champertous arrangements contrary to public policy cannot be immunised from scrutiny. Issue 18 [340] Issue 18 is set out as follows: How Puncak Kenangan came to be in possession of or have knowledge of the Agreement for Shares dated 26.2.2021. [341] This is answered as follows. The Agreement was discovered through the probate application in which it was exhibited as part of Syed Hamzah’s estate. Court documents filed in probate proceedings are public records accessible to interested parties. The Plaintiff, being directly affected by the Rectification Application and the champertous arrangements, was entitled to rely on documents exhibited therein. S/N 1PzIjDqt0UOefhwlhrzh8g Suit 319 [342] Further, I now formally address each of the twenty-one Issues to be Tried that were agreed by the parties in Suit 319. Issue 1 [343] Issue 1 is set out as follows: Whether the Consent Order dated 20.6.2019 obtained on part of Syed Hamzah in OS 142 was carried out and procured by way of fraud, deception and/or non-disclosure and/or deliberate concealment of material facts on the part of Syed Hamzah. [344] This is answered in the affirmative. For the same reasons as Issue 1 in Suit 221 addressed at paragraph 312 above, the fraud is established by the findings at paragraphs 88 to 116. Issue 2 [345] Issue 2 is set out as follows: Whether OS 142 was deliberately taken out in the manner it was to preclude Ngan and AT Masters S/N 1PzIjDqt0UOefhwlhrzh8g from challenging the claims therein in abuse of court process. [346] This is answered in the affirmative. The Plaintiffs in Suit 319 (Ngan and AT Masters) are shareholders in Puncak Kenangan whose interests were directly affected by the rectification application. As with Puncak Kenangan in Suit 221, they were deliberately excluded from OS 142, receiving no notice and having no opportunity to oppose the application. The findings at paragraphs 151 to 176 regarding abuse of process and breach of natural justice apply equally to the Plaintiffs in Suit 319. Issue 3 [347] Issue 3 is set out as follows: Whether the matters in items 1 and 2 above on the part of Syed Hamzah were carried out by Syed Hamzah himself, Syed Sazlee and/or Khoo. [348] This is answered in the affirmative. For the reasons addressed in Issue 3 of Suit 221 at paragraph 316 above, the fraud was primarily Syed Hamzah’s conduct, with Khoo complicit through his champertous arrangements and Syed Sazlee subsequently involved as detailed at paragraphs 232 to 235. S/N 1PzIjDqt0UOefhwlhrzh8g Issue 4 [349] Issue 4 contains sub-issues in relation to the sale of the shares in Sitrac by Puncak Kenangan to Kelana Jati in or around May 1992, I address each sub-issue as follows. Whether the said Syed Hamzah was a director and/or chairman of Sitrac and a director and/or chairman and shareholder of Puncak Kenangan in 1992. [350] This is answered in the affirmative. As stated in paragraphs 3 to 6, Syed Hamzah was Chairman and Director of both companies during the relevant period. He signed the circular resolution dated 21.4.1992 appointing Ngan and Lo Jian Hooi as directors of Sitrac, demonstrating his directorship and involvement in Sitrac’s governance. [351] Issue 4(b)(i) is set out as follows: Whether Syed Hamzah has knowledge and/or was aware of the sale of the Sitrac shares from Puncak Kenangan to Kelana Jati in 1992. [352] This is answered in the affirmative. As found at paragraph 93 above, Syed Hamzah approved and signed the circular resolution dated 10.12.1992 authorising the transfer of 75,000 Sitrac shares from Puncak Kenangan to Kelana Jati. All six directors of Sitrac, including Syed Hamzah, S/N 1PzIjDqt0UOefhwlhrzh8g signed this resolution. He therefore had actual knowledge and approved the transfer. [353] Issue 4(b)(ii) is set out as follows: Whether Syed Hamzah had access to the corporate secretarial documents of Sitrac and Puncak Kenangan and/or was in a position to know of the aforesaid sale of shares since 1992. [354] This is answered in the affirmative. As Chairman and Director of both companies, Syed Hamzah had full access to corporate records and was in a position to know of all material transactions. His signing of multiple resolutions over the years, as detailed at paragraph 94 above, demonstrates continuous access to and knowledge of corporate affairs. [355] Issue 4(c) is set out as follows: Whether Syed Hamzah, as a director and/or chairman of Sitrac and as a director and/or shareholder and/or chairman of Puncak Kenangan knew or was in a position to know that Kelana Jati was asked to pay the consideration of the said sale of Sitrac shares to Shafakat. [356] This is answered in the affirmative. This is answered as follows. Syed Hamzah was in a position to know the S/N 1PzIjDqt0UOefhwlhrzh8g payment arrangements as Chairman and Director of the relevant companies with access to corporate secretarial records. The share sale agreements dated 17.4.1992 set out the payment terms, and as an active director involved in the transactions, Syed Hamzah had the means to know the payment arrangements. [357] Issue 4(d) is set out as follows: Whether Syed Hamzah executed a Circular Resolution of Sitrac dated 5.5.1992 and Member’s Circular Resolution of Puncak Kenangan dated 17.4.1992 respectively authorising the aforesaid said Sale and the transfer pursuant to the aforesaid said Sale. [358] This is answered in the affirmative. The finding at paragraph 93 establishes that Syed Hamzah signed the resolution dated 5.5.1992 authorising the transfer of shares. The notes of proceedings from Suit 1507 record that Syed Hamzah himself confirmed his signature on Member’s Circular Resolution of Puncak Kenangan dated 17.4.1992 The resolutions demonstrate his active approval of the transactions he later sought to characterise as unauthorised. [359] Issue 4(e) is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether the facts and issues Syed Hamzah brought up in relation to the said Sale in the Rectification Application and OS 142 are issues that have been brought up before in the High Court case with Suit 1507. [360] This is answered in the affirmative. As noted at paragraph 98 above, Khoo’s Suit 1507 challenged the share transfers and sought rectification claiming a 23% beneficial interest. The issues raised in OS 142 regarding the legitimacy of share transfers and allotments overlap substantially with matters ventilated in Suit 1507, representing an attempt to relitigate matters already determined. [361] Issue 4(f) is set out as follows: Whether Suit 1507 was subsequently dismissed by the High Court after a full trial, by the Court of Appeal and all the way up to the leave to appeal stage in the Federal Court. [362] This is answered in the affirmative. As stated at paragraph 13 above, Khoo’s Suit 1507 was dismissed by the High Court after trial, his appeal to the Court of Appeal was dismissed, and his application for leave to appeal to the Federal Court was dismissed with costs. The claim was rejected at all levels of the judicial hierarchy. S/N 1PzIjDqt0UOefhwlhrzh8g [363] Issue 4(g) is set out as follows: Whether Syed Hamzah had also made police reports against one Syed Mustaffa in relation to the aforesaid said Sale in the years 2006 and 2013. [364] This is answered in the affirmative. Syed Hamzah lodged two police reports against Syed Mustaffa concerning the management of Puncak Kenangan and the disposal of Sitrac shares. The first report, dated 22.8.2006, alleged that Syed Mustaffa had sold 75,000 shares in Sitrac held by Puncak Kenangan to Kelana Jati for RM500,000.00, and that this sum was neither reflected in Puncak Kenangan’s audited accounts nor otherwise accounted for. The second report, dated 25.2.2013, characterised the transfer of the Sitrac shares as a fraudulent transaction amounting to criminal breach of trust. Following investigations that extended over several years, the Deputy Public Prosecutor decided on 4.3.2015 to classify the matter as No Further Action on the ground that there was insufficient evidence to establish the alleged offences. [365] Issue 4(h) is set out as follows: Whether the said Syed Mustaffa Bin Syed Abdullah Shahabuddin then made a police report against Syed Hamzah in 2007 which clarified the accusation made against him. S/N 1PzIjDqt0UOefhwlhrzh8g [366] This is answered in the affirmative. Syed Mustaffa lodged a police report on 17.8.2007 against Syed Hamzah and Khoo. The report was made in response to and to clarify the allegations earlier raised by Syed Hamzah in his 2006 police report concerning the transfer of 75,000 shares. The report was lodged after Syed Mustaffa discovered that Syed Hamzah and Khoo had allegedly made a police report against Puncak Kenangan and its directors in relation to that share transfer. Issue 5 [367] Issue 5 is set out as follows: Whether Syed Hamzah when he filed and pursued OS 142 disclosed the matters set out in Issue 4 above. [368] This is answered in the negative. None of the matters detailed in Issue 4 were disclosed in OS 142. Syed Hamzah’s own involvement as director and chairman, his knowledge of and approval of the share transfers, the prior litigation in 1992, and the history of complaints and counter-complaints were all concealed, as found at paragraphs 86 to 116 above. S/N 1PzIjDqt0UOefhwlhrzh8g Issue 6 [369] Issue 6 is set out as follows: Whether OS 142 has any connections with Summons No. 131. [370] This is answered in the affirmative. OS 142 was explicitly modelled on OS 131, with the Consent Order entered because of the similar order in OS 131 concerning related facts, as addressed in Issue 7 of Suit 221 at paragraph 330 above. Issue 7 [371] Issue 7 is set out as follows: Whether Syed Hamzah and SSM entered into the Consent Order in OS 142 on 20.6.2019 as a result of the Order made by the High Court dated 21.05.2019 in OS 131. [372] This is answered in the affirmative. The letter dated 18.6.2019 from Thomas Philip explicitly stated that the parties agreed to enter a consent order for OS 142 because a similar order had been made in OS 131. The Consent Order in OS 142 mirrored the terms of the OS 131 order. S/N 1PzIjDqt0UOefhwlhrzh8g Issue 8 [373] Issue 8(a) is set out as follows: Whether Syed Hamzah’s shares and all his interest, legal and beneficial, in Puncak Kenangan, as well as his direct or indirect, legal and beneficial, interest in Sitrac, was and is being held or substantially held on trust for Khoo. [374] This is answered in the affirmative. The Declaration of Trust dated 13.5.2016 and the Agreement for Shares dated 26.2.2021, detailed at paragraphs 196 to 202 above, established that Khoo had a substantial beneficial interest in Syed Hamzah’s shareholdings. Under the Agreement for Shares, if Syed Hamzah succeeded in obtaining 23% of Sitrac shares, he agreed to allocate 12.5% of his Puncak Kenangan shares to Khoo, effectively giving Khoo 47.5% of Syed Hamzah’s interests. [375] Issue 8(b) is set out as follows: Whether Syed Hamzah executed a Power of Attorney dated 19.5.2016 in favour of Khoo. [376] This is answered in the affirmative. The Irrevocable Power of Attorney gave Khoo authority to prosecute actions on Syed Hamzah’s behalf and receive proceeds, as S/N 1PzIjDqt0UOefhwlhrzh8g established at paragraph 17 above and detailed at paragraphs 198 to 199. [377] Issue 8(c)(i) is set out as follows: Whether by the Power of Attorney, Khoo had agreed to act as attorney to take legal action on behalf of Syed Hamzah in respect of Puncak Kenangan and Sitrac. [378] This is answered in the affirmative. The Power of Attorney dated 19.5.2016 gave Khoo authority “to prosecute the actions on my behalf” as detailed at paragraph 198 above. [379] Issue 8(c)(ii) is set out as follows: Whether by the Power of Attorney, Syed Hamzah had agreed to give Khoo at least 47.5% interest in the interest obtained through such legal action. [380] This is answered in the affirmative. The Declaration of Trust, detailed at paragraphs 196 and 197 above, states that 47.5% of proceeds or damages would go to Khoo, with 52.5% distributed to Syed Hamzah or his estate. [381] Issue 8(d) is set out as follows: If the answer to (c) above is affirmative, whether the agreement under the Power of Attorney is a S/N 1PzIjDqt0UOefhwlhrzh8g champertous and/or usurious arrangement between Syed Hamzah and Khoo in relation to Puncak Kenangan’s shares and Sitrac’s shares, namely Puncak Kenangan’s 50,000 shares and Sitrac’s 75,000 shares, as well as shares in other companies associated to and/or affiliated to Puncak Kenangan and any legal action filed in relation thereto. [382] This is answered in the affirmative. For the detailed reasons at paragraphs 189 to 226 above, the Power of Attorney, together with the Declaration of Trust and Agreement for Shares, constitute champertous arrangements void as contrary to public policy under Section 24(e) of the Contracts Act 1950. [383] Issue 8(e) is set out as follows: Whether since at least 2017, Syed Hamzah’s own doctor had diagnosed Syed Hamzah as suffering from a serious medical condition, dementia. [384] This is answered in the affirmative. As detailed at paragraphs 130 to 131 above, Dr Soraya’s testimony in Suit 623 established that Syed Hamzah showed signs of dementia from as far back as 2017. The CT scan performed on 23.1.2018 showed abnormalities. By 4.10.2021, he was formally diagnosed with Mixed S/N 1PzIjDqt0UOefhwlhrzh8g Dementia. The medical evidence demonstrates progressive cognitive decline beginning at least by 2017. [385] Issue 8(f) is set out as follows: If the answer to (e) above is affirmative, whether Syed Hamzah is therefore a person under disability under the Rules of Court 2012. [386] This is answered as follows. The evidence raises serious questions about Syed Hamzah’s capacity during the relevant period, as found at paragraphs 127 to 130 above. While no formal declaration under the Mental Health Act 2001 was made, the progressive dementia evidenced by medical records, testimony, and his eventual declaration as unfit to testify on 5.4.2021 suggests significant cognitive impairment that would have affected his ability to give proper instructions in complex litigation. The critical point is that these concerns should have been disclosed but were deliberately concealed. Issue 9 [387] Issue 9 is set out as follows: Whether Syed Hamzah disclosed the matters in Issue 8 above to the High Court in OS 142. S/N 1PzIjDqt0UOefhwlhrzh8g [388] This is answered in the negative. None of the matters in Issue 8 - the Declaration of Trust, Power of Attorney, Agreement for Shares, Khoo’s beneficial interest, or concerns about dementia - were disclosed in OS 142, as found at paragraphs 100 to 104 above. Issue 10 [389] Issue 10 is set out as follows: Whether Syed Hamzah has consciously and/or deliberately failed and/or concealed and/or omitted to disclose in OS 142 the matters in Issue 8 above. [390] This is answered in the affirmative. The concealment was conscious and deliberate, satisfying the test in Royal Bank of Scotland as found at paragraphs 105 to 115 above. The curated nature of what was included and excluded in the affidavit in support demonstrates a deliberate strategy to present a misleading picture to the Court and SSM. Issue 11 [391] Issue 11 is set out as follows: Whether OS 142 had been filed and the Consent Order was obtained pursuant to a champertous and usurious arrangement. S/N 1PzIjDqt0UOefhwlhrzh8g [392] This is answered in the affirmative. OS 142 was conceived, instituted and prosecuted pursuant to the champertous arrangements embodied in the Declaration of Trust, Power of Attorney and Agreement for Shares, as found at paragraphs 225 to 226 above. Issue 12 [393] Issue 12 is set out as follows: If the answer to Issue 11 is in the affirmative, whether OS 142 and the resulting Consent Order is therefore tainted with illegality and bad faith and are an abuse of process. [394] This is answered in the affirmative. Proceedings instituted pursuant to champertous arrangements contrary to public policy are tainted with illegality and bad faith and constitute abuse of process. Courts will not permit their processes to be used to give effect to champertous schemes, as found at paragraphs 217 to 226 above. Issue 13 [395] Issue 13 is set out as follows: Whether OS 142 had been filed and the Consent Order was obtained when Syed Hamzah was suffering from dementia. S/N 1PzIjDqt0UOefhwlhrzh8g [396] This is answered as follows. The evidence establishes that Syed Hamzah was exhibiting signs of dementia and progressive cognitive decline during the period when OS 142 was filed (January 2019) and the Consent Order obtained (June 2019), as found at paragraphs 128 to 131 above. The CT scan abnormalities in January 2018, signs of dementia from 2017, and ultimate diagnosis of Mixed Dementia in October 2021 demonstrate a condition that predated and encompassed the OS 142 proceedings. Issue 14 [397] Issue 14 is set out as follows: If the answer to Issue 13 is in the affirmative, whether OS 142 and the resulting Consent Order is therefore tainted with illegality and bad faith and are an abuse of process. [398] This is answered in the affirmative. The failure to disclose serious concerns about mental capacity to the Court and SSM, combined with the prosecution of complex litigation by someone whose cognitive function was deteriorating, taints the proceedings with bad faith and abuse of process, as found at paragraphs 138 to 143 above. S/N 1PzIjDqt0UOefhwlhrzh8g Issue 15 [399] Issue 15 is set out as follows: Whether Ngan and AT Masters’ claim is barred by the doctrine of res judicata and/or issue estoppel and/or cause of action estoppel by reason of the matters pleaded and raised in Suit 623 and/or Suit 474. [400] This is answered in the negative for the reasons stated in addressing Issue 12 of Suit 221 in paragraphs 329 above. Issue 16 [401] Issue 16 is set out as follows: Whether the issues and allegations in respect of the legitimacy of OS 142 and the Consent Order as well as the allegations of champerty as pleaded by Ngan and AT Masters in this suit could have and/or ought to have been pleaded and raised in Suit 474 and/or Suit 623. [402] This is answered in the negative. The Plaintiffs in Suit 319 were not parties to those earlier suits. The champertous agreements only came to light through the probate application filed on 4.8.2021, after Suit 623 had concluded. The Agreement for Shares was dated 26.2.2021, during S/N 1PzIjDqt0UOefhwlhrzh8g the pendency of Suit 623. The full extent of the champertous scheme could not have been pleaded in earlier proceedings because it was not then known or complete. Issue 17 [403] Issue 17 is set out as follows: Whether Syed Sazlee and Khoo had at all material times been transparent and had disclosed all the relevant material particulars in respect of the said Rectification Application, OS 142 and the Consent Order. [404] This is answered in the negative. For all the reasons detailed in this judgment, particularly the findings of systematic concealment at paragraphs 89 to 104, Syed Sazlee and Khoo were not transparent and did not disclose material particulars. The champertous arrangements, Syed Hamzah’s involvement in the transactions, prior litigation, mental capacity concerns, and connection to the impeached OS 131 were all concealed. Issue 18 [405] Issue 18 is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether SSM or the High Court had considered or decided on the merits of the rectification of Puncak Kenangan’s Register of Members, OS 142, as well as the propriety of the transfer and form. [406] This is answered in the negative. Neither SSM nor the High Court made any substantive determination on the merits. The Consent Order merely directed SSM to reconsider the application with notice to interested parties, for the same reasons as Issue 15 in Suit 221 addressed at paragraph 335 above. Issue 19 [407] Issue 19 is set out as follows: Whether the filing of OS 142 and Syed Hamzah’s conduct pertaining to the Consent Order of OS 142 was genuine and bona fide. [408] This is answered in the negative. The findings of fraud, deliberate concealment, and champertous motivation establish that the conduct was neither genuine nor bona fide, for the same reasons as Issue 16 in Suit 221 addressed at paragraph 348 above. Issue 20 [409] Issue 20 is set out as follows: S/N 1PzIjDqt0UOefhwlhrzh8g Whether the subject matter of OS 142 is time barred by laches as the allotment of shares occurred in 1993. [410] This is answered in the negative. Laches does not bar actions to impeach judgments obtained by fraud. The principle that “fraud unravels everything” applies regardless of delay, for the same reasons as Issue 13 in Suit 221 addressed at paragraph 331 above. Issue 21 [411] Issue 21 is set out as follows: Whether Ngan and AT Masters are entitled to the reliefs prayed. [412] This is answered in the affirmative. For all the reasons set out in this judgment, Ngan and AT Masters have established fraud, breach of natural justice, abuse of process, and champerty on multiple independent grounds. The reliefs granted are set out in the Orders at paragraphs 476 below. S/N 1PzIjDqt0UOefhwlhrzh8g COSTS Background to Costs Hearing [413] Following my decision on liability delivered on 6.11.2025, I reserved the question of costs for determination at a later date. I directed parties to file written submissions on costs by 21.11.2025 and fixed a hearing for 28.11.2025. [414] On 21.11.2025, Puncak Kenangan filed written submissions on costs. Ngan and AT Masters filed their written submissions on the same date. SSM filed written submissions seeking costs of RM15,000.00 in each suit. No written submissions were filed by Syed Sazlee and Khoo in Suit 221 and Suit 319 to opposethe quantum sought. [415] On 28.11.2025, I heard oral submissions on costs. Puncak Kenangan’s counsel, Mr Jeyakumar Palakrishna and Ngan and AT Masters’ counsel Mr Terence Chan submitted for the Plaintiffs in both suits. By this time Khoo and Syed Sazlee’s solicitors have discharged themselves and Khoo submitted on behalf of Syed Sazlee and himself in both suits. I reserved my decision and fixed 10.12.2025 for delivery of judgment on costs by Zoom. S/N 1PzIjDqt0UOefhwlhrzh8g The Parties’ Positions on Costs The Plaintiffs’ Submissions [416] In Suit 221, Puncak Kenangan sought costs on an indemnity basis in the sum of RM761,720.50, comprising RM740,500.00 in getting-up fees and RM21,220.50 in itemised out-of-pocket expenses as set out in the Bill of Costs annexed to the submissions. [417] Puncak Kenangan submitted that if the Court found certain items in the Bill of Costs to be unreasonable, it was willing to accept a minimum of RM500,000.00 on an indemnity basis, plus the out-of-pocket expenses of RM21,220.50. [418] Alternatively, if the Court awarded costs on a standard party-to-party basis rather than indemnity basis, Puncak Kenangan sought RM500,000.00 as reasonable costs reflecting the complexity and duration of the litigation. [419] In Suit 319, Ngan and AT Masters sought costs on an indemnity basis in the sum of RM770,708.76, comprising RM752,764.15 in getting-up fees and RM17,944.61 in itemised out-of-pocket expenses. [420] Their alternative position mirrored that of Puncak Kenangan in Suit 221, namely that whether on an S/N 1PzIjDqt0UOefhwlhrzh8g indemnity basis or standard basis, the quantum should not be less than RM500,000.00. [421] Both sets of Plaintiffs submitted that indemnity costs were warranted due to the serious findings of conscious and deliberate dishonesty, fraud, champerty, abuse of process and breach of natural justice. They relied on case authorities demonstrating that indemnity costs are appropriate where parties have engaged in aberrant conduct, acted in bad faith, or abused court processes. [422] The Plaintiffs referred to: a) See Teow Koon v Kian Joo Can Factory Berhad [2016] MLJU 367 (HC), where Wong Khian Kheong J (as he then was) awarded indemnity costs of RM500,000.00 due to the defendant’s “aberrant conduct,” taking into account the novelty of issues, complexity of trial, significant volume of documents, and importance to the plaintiff. b) Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181, a Federal Court decision awarding indemnity costs after finding that respondents acted in bad faith by diverting property intended for a joint venture, having “set themselves upon a course to unlawfully deprive the appellant of her legitimate interest.” S/N 1PzIjDqt0UOefhwlhrzh8g c) Md Erpan Mairi v Kamaruddin Yacoob & Ors [2020] 1 LNS 1146, where Wong Khian Kheong J ordered indemnity costs against a defendant who fraudulently sold land by falsely claiming valid title, emphasising the public interest in deterring land fraud. d) Alex Ting Kuang Kuo v Credit Corp (M) Sdn Bhd [2012] MLJU 1070, where Hamid Sultan J (as he then was) stated that courts may order indemnity costs where there has been scandalous conduct, as such costs are punitive in nature. [423] The Plaintiffs further submitted that even on a party-to-party standard basis, the quantum of RM500,000.00 was reasonable given: a) The complexity of the legal and factual issues, involving fraud, mental capacity, champerty, breach of natural justice, and abuse of process. b) The volume of documentary evidence spanning over 30 years of corporate records, requiring extensive analysis and cross-referencing. c) The 12-day trial heard over multiple weeks. S/N 1PzIjDqt0UOefhwlhrzh8g d) The substantial skill and labour required by counsel in analysing historical documents, reconstructing transactions, examining medical evidence, and presenting a cohesive case. e) The fundamental importance of the matters to the Plaintiffs’ proprietary rights and the integrity of company registers. f) Comparative case law showing costs awards well in excess of the quantum sought. The Plaintiffs cited Looh Keo v Looh Chee Peng & Ors [2024] 1 CLJ 467, where RM1,100,000.00 in costs was awarded in a complex family dispute over beneficial ownership of shares. They also referenced Am Trustee Berhad & Ors v Aldwich Bhd & Ors [2018] CLJU 309, another High Court suit where costs exceeded RM1,000,000.00. The Defendants’ Submissions [424] Khoo submitted that the quantum claimed was excessive and unjustified. [425] He contended that much of the historical research undertaken by the Plaintiffs was irrelevant to the actual issues determined by the Court. They argued that the core question was whether the Consent Order should be S/N 1PzIjDqt0UOefhwlhrzh8g impeached, not whether the 1993 allotment was valid or whether various corporate transactions over 30 years were properly conducted. [426] He submitted that costs should reflect only the work reasonably necessary to determine whether the Consent Order should be set aside, without the need to examine 30 years of historical records. [427] He argued that the suits should have been straightforward applications to set aside the Consent Order, not extended trials requiring examination of extensive historical documentation. SSM’s Submissions [428] SSM sought costs of RM15,000.00 in each suit, reflecting its participation as a nominal defendant over the 12-day trial. [429] Alternatively, SSM sought an order that no costs be awarded against it, given its status as a statutory body and nominal party that conducted itself appropriately throughout and took a neutral stance on the substantive issues. S/N 1PzIjDqt0UOefhwlhrzh8g Legal Principles on Costs [430] The Court’s power to award costs is governed by Order 59 of the Rules of Court 2012. The fundamental principle, set out in Order 59 Rule 3(2), is that costs shall follow the event unless the Court orders otherwise. The successful party is prima facie entitled to costs. [431] The quantum of costs is in the discretion of the Court, to be exercised judicially having regard to all relevant circumstances. Order 59 Rule 16(1) Rules of Court 2012 sets out matters which the Court may take into account, including: a) the complexity of the matter; b) the skill, specialised knowledge and responsibility required of the solicitor; c) the number and importance of the documents; d) the place and circumstances in which the business was transacted; e) the urgency and importance of the cause or matter to the client; and S/N 1PzIjDqt0UOefhwlhrzh8g f) where money or property is involved, its amount or value. [432] Costs are ordinarily awarded on a party-to-party standard basis. Order 59 Rule 16(3) provides: “On an assessment of costs on the standard basis, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the Court may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party …” [433] However, the Court has discretion to award costs on an indemnity basis in appropriate circumstances. Order 59 Rule 16(4) provides: “On a determination of costs on the indemnity basis, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the Court may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party...” [434] Indemnity costs are awarded in exceptional cases where the conduct of the paying party warrants such an order. As stated in Airtrust (Hong Kong) Ltd v PH Hydraulics Engineering Pte Ltd [2016] 5 SLR 103, a Singapore Court S/N 1PzIjDqt0UOefhwlhrzh8g of Appeal decision cited with approval by Malaysian courts, indemnity costs may be appropriate where: a) the action is brought in bad faith as a means of oppression or for other improper purposes; b) the action is speculative, hypothetical and clearly without basis; c) the action amounts to wasteful or duplicative litigation or is otherwise an abuse of process; or d) the party’s conduct has been unreasonable or deserving of sanction. [435] Malaysian courts have similarly held that indemnity costs are appropriate where there has been fraud, deliberate dishonesty, abuse of process, or conduct requiring to be marked by the Court’s disapproval. Analysis and Findings on Costs Basis of Costs [436] Having considered the submissions of all parties and the circumstances of these cases, I am satisfied that costs should be awarded in favour of the successful Plaintiffs, but S/N 1PzIjDqt0UOefhwlhrzh8g I decline to award costs on an indemnity basis for the following reasons. [437] First, whilst I have made serious findings of fraud, conscious and deliberate dishonesty, abuse of process, and champerty, all of which would ordinarily warrant indemnity costs, I am mindful that the principal wrongdoer, Syed Hamzah, is now deceased. Syed Sazlee whilst bearing responsibility as legal personal representative and for his subsequent involvement in exhibiting the champertous agreement, was not personally involved in the original procurement of the Consent Order in 2019. [438] Second, and more significantly, in my judgment on liability I declined to award exemplary or punitive damages, taking the view that the declaratory relief setting aside the fraudulently obtained Consent Order ex debito justitiae constituted the complete remedy for the procedural wrong, restoring the parties to their original position without requiring separate monetary compensation. I explained that the impeachment of the Consent Order provides complete relief by removing the taint of fraud and restoring matters to the status quo ante. [439] It would be inconsistent to decline punitive damages on the basis that the declaratory relief is complete, but then to award indemnity costs which are inherently punitive in nature. Costs on an indemnity basis are awarded not S/N 1PzIjDqt0UOefhwlhrzh8g merely to compensate but to mark the Court’s disapproval and to sanction improper conduct. Having determined that the declaratory relief is the appropriate and complete remedy, I am not persuaded that additional punishment through indemnity costs is warranted. [440] However, I am satisfied that substantial costs on a standard party-to-party basis are appropriate and necessary to adequately compensate the Plaintiffs for the costs reasonably incurred in these proceedings. [441] In determining the appropriate quantum, I take into account the following matters. Complexity of Issues [442] These cases involved multiple complex legal and factual issues that required substantial analysis and submission. The issues included: the requirements for impeaching a consent order for fraud under Badiaddin and Royal Bank of Scotland; questions of mental capacity and the standard of proof required; the law of champerty and its application to complex tripartite arrangements; principles of abuse of process and breach of natural justice; the relationship between Section 602 of the Companies Act 2016 proceedings and impeachment actions; and questions of issue estoppel based on the Suit 474 proceedings. S/N 1PzIjDqt0UOefhwlhrzh8g [443] Each of these issues required detailed legal research, careful analysis of case authorities from Malaysia and other jurisdictions, and sophisticated legal argument. The written submissions filed by the parties ran to hundreds of pages and cited numerous authorities. Skill and Labour Required [444] The preparation and conduct of these cases required substantial skill and labour on the part of solicitors and counsel. Specific work included: a) Analysis of over 30 years of corporate records, including board minutes, shareholders’ resolutions, Form 24 returns, transfer documents, loan agreements, and company registers for multiple entities (Puncak Kenangan, Sitrac, Kelana Jati, AT Masters). b) Tracing complex share transactions and ownership structures over multiple decades, requiring detailed chronological reconstruction and cross-referencing of documents. c) Examination and analysis of medical evidence, including hospital reports, medication records, CT scan results, and expert testimony on mental capacity and dementia progression. S/N 1PzIjDqt0UOefhwlhrzh8g d) Discovery and analysis of the champertous agreements - the Power of Attorney, Declaration of Trust, and Agreement for Shares - understanding their effect and operation, and researching the law on champerty. e) Preparation of witnesses, including company directors and medical experts. f) Conduct of a 12-day trial involving extensive cross-examination and examination-in-chief of multiple witnesses. g) Preparation of comprehensive written submissions and participation in oral clarification hearings. [445] The documentary evidence in these cases was voluminous. The Common Bundle of Documents comprised nine volumes. There were additional bundles for each suit’s pleadings and witness statements. Bundles of Authorities contained numerous case reports and legislative provisions. The total documentation ran to thousands of pages. [446] Counsel were required to master this material, identify relevant documents, cross-reference between documents S/N 1PzIjDqt0UOefhwlhrzh8g to trace transactions and establish the chronology, and present the documentary evidence coherently at trial. Importance to the Plaintiffs [447] The matters in issue were of fundamental importance to the Plaintiffs. At stake were: the integrity of Puncak Kenangan’s register of members; the validity of shareholdings acquired over three decades; the ability to resist unfounded challenges to long-settled corporate structures; and the vindication of proprietary rights against claims tainted by fraud and champerty. [448] Beyond the specific parties, the cases raised matters of broader importance regarding the integrity of company registers, the circumstances in which consent orders may be impeached, and the Court’s approach to champertous arrangements in corporate litigation. Duration and Conduct of Proceedings [449] The trial spanned 12 days of hearing from 11.3.2024 to 22.4.2025, spread over approximately one year. The proceedings required sustained preparation and attention from the Plaintiffs’ legal teams over an extended period. S/N 1PzIjDqt0UOefhwlhrzh8g [450] The cases were heard together, which achieved significant efficiencies. Had the suits been conducted separately, the duplication of effort in document preparation, witness examination, and legal submissions would have resulted in substantially higher costs for each suit individually. Relevance of Examination of Historical records [451] I reject Syed Sazlee and Khoo’s submission that the examination of historical records was unnecessary or irrelevant. To the contrary, this work was essential to establishing the conscious and deliberate nature of the concealment and the materiality of the concealed facts. [452] The Plaintiffs needed to demonstrate not merely that facts were not disclosed, but that they were material facts that would have affected the Court’s decision. To do so required proving: Syed Hamzah’s actual involvement in the 1993 allotment and related transactions; the documented approvals and resolutions he signed; his receipt and subsequent disposal of shares; the history of challenges to the allotment and related matters; and the pattern of conduct demonstrating deliberate concealment rather than innocent oversight. [453] All of this necessitated detailed examination of the historical record. My findings of fraud were based S/N 1PzIjDqt0UOefhwlhrzh8g substantially on that historical material. The submission that this work was unnecessary is unfounded. [454] Moreover, Syed Sazlee and Khoo themselves put these matters in issue through their pleadings and submissions. They advanced detailed arguments about the relationship between OS 131 and OS 142, the nature of Section 602 proceedings, Syed Hamzah’s knowledge and involvement, and the legitimacy of the champertous arrangements. The Plaintiffs were entitled and indeed required to respond with comprehensive evidence and analysis. Efficiencies from Consolidation [455] An important consideration in determining quantum is that the two suits were heard together with common document bundles and substantially overlapping evidence and submissions. This achieved very significant efficiencies compared to what would have been required if the suits had been conducted separately. [456] Had Suit 221 and Suit 319 been heard separately, each would have required: its own document bundles (with substantial duplication); separate witness preparation and testimony; separate written and oral submissions on substantially identical legal and factual issues; and separate hearing days. S/N 1PzIjDqt0UOefhwlhrzh8g [457] The consolidated hearing avoided this duplication. While counsel still had to prepare submissions for both suits and address particular issues specific to each, the overall work required was substantially less than would have been needed for two separate trials. [458] This efficiency should be reflected in the costs awarded. The total costs for both suits combined should be less than double what would be awarded for a single suit of this complexity. Quantum Assessment [459] Taking all these factors into account, I am satisfied that costs of RM100,000.00 in each suit on a standard party-to-party basis properly reflects: a) The substantial complexity of the legal and factual issues. b) The high level of skill and labour reasonably required from solicitors and counsel. c) The very significant volume of documents spanning three decades that required analysis and mastery. S/N 1PzIjDqt0UOefhwlhrzh8g d) The 12-day trial requiring preparation and presentation of witnesses, cross-examination, and comprehensive legal submissions. e) The fundamental importance of the matters to the Plaintiffs’ proprietary rights and to the integrity of company registers. f) The efficiencies achieved through the consolidated hearing, which avoided the duplication that would have occurred if the suits had been conducted separately. g) Comparable cases cited by the parties, adjusting for the specific circumstances of the present cases. [460] The quantum of RM100,000.00 in each suit represents a total of RM200,000.00 for both suits combined. This is less than the amount that would be awarded if the suits had been conducted separately with full duplication of work, appropriately reflecting the efficiencies achieved. [461] Had the suits been conducted separately, each might reasonably have attracted costs of RM150,000.00 or more on a standard basis, given the complexity and volume of work. The consolidated hearing achieving efficiencies justifies the reduction to RM100,000.00 per suit. S/N 1PzIjDqt0UOefhwlhrzh8g [462] This quantum also appropriately reflects that costs are being awarded on a standard basis rather than indemnity basis. As noted above, whilst the conduct involved would ordinarily warrant indemnity costs, I have declined to award such costs given my finding that the declaratory relief constitutes complete remedy without requiring additional monetary punishment. Costs in Favour of SSM [463] SSM, as a nominal defendant in both suits, conducted itself entirely properly throughout. It took a neutral stance on the substantive issues, leaving them for the Court’s determination, whilst participating responsibly in the trial to assist the Court. [464] SSM’s participation over 12 days of trial required the attendance of its legal officer and preparation to respond to questions and submissions as they arose. Whilst SSM did not advance substantive arguments on the main issues, its presence and participation were necessary and appropriate. [465] Costs of RM15,000.00 in each suit, being RM30,000.00 in total, fairly compensates SSM for its participation whilst recognising its nominal status and neutral stance. S/N 1PzIjDqt0UOefhwlhrzh8g [466] These costs are to be paid by Syed Sazlee and Khoo as the 1st and 3rd Defendants in Suit 221 and the 1st and 2nd Defendants in Suit 319, being the unsuccessful parties in each suit. CONCLUSION AND ORDERS [467] For all the reasons set out in this judgment, I am satisfied that the Plaintiffs in both Suit 221 and Suit 319 have established their claims on multiple independent grounds. [468] The Consent Order dated 20.6.2019 in OS 142 was obtained by fraud through conscious and deliberate concealment of material facts. The concealment satisfies all elements of the test established in Royal Bank of Scotland v Highland Financial Partner. [469] Serious questions existed about Syed Hamzah’s mental capacity during the relevant period, which were deliberately not disclosed to the Court or to SSM. [470] OS 142 was deliberately structured to exclude interested parties from participating, constituting fundamental breach of the principles of natural justice and abuse of court process. S/N 1PzIjDqt0UOefhwlhrzh8g [471] The proceedings were instituted and prosecuted pursuant to champertous arrangements that are void as contrary to public policy under Section 24(e) of the Contracts Act 1950. [472] The cumulative effect of these multiple grounds demonstrates proceedings that were fundamentally and irredeemably flawed from inception. The doctrine that “fraud unravels everything” applies with full force. Courts will not permit orders obtained by such means to stand, regardless of their procedural or substantive nature. [473] As established in Lazarus Estates Ltd v Beasley, the law does not permit any person to retain an advantage obtained through fraud. A judgment or order procured by fraud cannot be allowed to stand, as fraud vitiates and nullifies everything it touches. [474] In the present cases, the fraud is manifest, the material concealment proven beyond doubt, and the abuse of process evident. Justice demands that the orders obtained by such means be set aside. Orders in Suit 221 [475] In respect of Suit 221 I make the following orders: S/N 1PzIjDqt0UOefhwlhrzh8g a) It is declared that the Consent Order dated 20.6.2019 in OS 142 was obtained by fraud and dishonesty on the part of the late Dato’ Syed Hamzah bin Syed Abu Bakar. b) The Consent Order dated 20.6.2019 in OS 142 is impeached and set aside in its entirety. c) OS 142 is struck off and set aside in totality. d) No order is made for assessment of damages, the Plaintiff having failed to present evidence of quantifiable pecuniary loss, and the declaratory relief setting aside the fraudulently obtained Consent Order ex debito justitiae constituting the complete remedy for the procedural wrong, restoring the parties to their original position without requiring separate monetary compensation. e) Syed Sazlee and Khoo shall pay to the Plaintiff costs of RM100,000.00 on a standard party-to-party basis. f) Syed Sazlee and Khoo shall pay to SSM costs of RM15,000.00. S/N 1PzIjDqt0UOefhwlhrzh8g Orders in Suit 319 [476] In respect of Suit 319 I make the following orders: a) It is declared that the Consent Order dated 20.6.2019 recorded in OS 142 was obtained by fraud and dishonesty by the late Dato’ Syed Hamzah bin Syed Abu Bakar and the 2nd Defendant, Khoo Kiam Chong. b) The Consent Order dated 20.6.2019 is impeached and set aside in totality. c) OS is struck off and set aside in totality. d) It is declared that the actions of the late Dato’ Syed Hamzah bin Syed Abu Bakar and Khoo in filing OS 142 and obtaining the Consent Order dated 20.6.2019 were pursuant to champertous and usurious arrangements and are therefore tainted with illegality and bad faith and amount to an abuse of process. e) No order is made for assessment of damages, the Plaintiffs having failed to present evidence of quantifiable pecuniary loss, and the declaratory relief setting aside the fraudulently obtained Consent Order ex debito justitiae constituting the S/N 1PzIjDqt0UOefhwlhrzh8g complete remedy for the procedural wrong, restoring the parties to their original position without requiring separate monetary compensation. f) Syed Sazlee and Khoo shall pay to the Plaintiffs costs of RM100,000.00 on a standard party-to-party basis. g) Syed Sazlee and Khoo shall pay to SSM costs of RM15,000.00. 19 February 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) S/N 1PzIjDqt0UOefhwlhrzh8g Counsel: For the Plaintiff in Suit 221 and 4th defendant in Suit 319: Jeyakumar Palakrishnar with Normadiah Mohammad and Shamitha a/p Ganisan (Messrs Zahir Jeya & Zainal) For the 1st and 3rd Defendant in Suit 221 and for the 1st and 2nd Defendants in Suit 319: Stanley Sebastian a/l Sinnappen with Dennis Xavier with and Rossa Severinus (Messrs Vazeer Akbar Majid & Co.) For SSM: Nor Syairah Sulaiman For the Plaintiffs in Suit 319: Terence Chan Kah Meng with Ung Zhee Laine and Jeane Lee Yi Jin (Messrs Lim Kian Leong & Co)