Rm Link Sdn Bhd v Dk-My Properties Sdn Bhd (BA-22NCvC-415-10/2022)

RM LINK SDN BHD

LIM KONG FAI (NO. K/P SINGAPURA: S1736530D) PLAINTIF-PLAINTIF DAN 1. DK-MY PROPERTIES SDN BHD

DK LEATHER CORPORATION BERHAD

KOEK TIANG KUNG (NO. K/P: 610606-02-5789) DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] an introduction fee alleged to be payable by the Defendants jointly and/or severally based on an agreement signed between the 1st Plaintiff RML and the 1st Defendant DKMY on 13- 10-2016 ( ). The introduction fee related to the sale of all the shares of SS ) by the vendor, Asiamalls Sdn Bhd under a Share Sale Agreement dated 27-11-2017 28/04/2025 09:57:51 BA-22NCvC-415-10/2022 Kand. 81 ( ). SSTwo was the registered proprietor and beneficial owner of land with a shopping mall erected thereon ( ). [2] The Commission Agreement provided for the payment of the introduction fee to RML which, calculated on the purchase consideration of RM176,300,000.00 in the SSA, was RM1,763,000.00 ( ). As contemplated in the Commission Agreement, DKMY nominated the 2nd Defendant SSA. Issues for determination [3] DKMY did not pay the Introduction Fee to RML. The central issue in this case is whether the Commission Agreement is void because RML is not registered under the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 ). However, the action was further complicated by various other issues. [4] The Plaintiffs also sought declarations that the 2nd Plaintiff ( ) is the alter ego of RML, and that the 3rd Defendant ( ) is the alter ego of DKMY and DKLC whose veil of incorporation should be pierced. The reasons for these declarations were two-fold:

the Plaintiffs sought an order that the Introduction Fee under the Commission Agreement should be jointly and severally paid by all the Defendants to the Plaintiffs.

the Plaintiffs sought in the alternative, an order for payment of RM963,000.00, after setting off a personal loan sum of RM800,000.00 payable by Lim to Koek from the Introduction Fee ( ). [5] In respect of the Agreement to Set Off, Koek had earlier sued Lim in Shah Alam Sessions Court Suit No: BA-B52NCC-55-03/2020 for recovery of the loan sum of RM800,000.00 ( ). Lim resisted it on grounds that the loan had already been repaid by way of the Agreement to Set Off. This action was filed as a separate suit instead of a counterclaim in the Sessions Court Suit, and no attempt was made to consolidate the 2 actions. [6] The Plaintiffs had in the course of this trial, re-ventilated the existence of the Agreement to Set Off which had been fully ventilated in Sessions Court Suit that concluded on 22-10-2024 and was already pending a decision when this trial started, raising the undesirable spectre of inconsistent decisions. [7] According to the Plaintiffs, the Agreement to Set Off was also raised here as a basis to claim for aggravated damages, the logic being that if the Agreement to Set Off exists, the friendly loan had been extinguished and accordingly, there would have been no basis for Koek to sue Lim, record a default judgment and commence bankruptcy proceedings based upon that loan sum. [8] Other than the issue of illegality of the Commission Agreement, this Court also considered the following issues:

Whether there was a variation to the Commission Agreement as contended by Koek in the alternative

Whether Lim has privity of contract to claim the Introduction Fee as the alter ego of RML

Whether liability for the Introduction Fee may be imposed on DKLC and Koek because Koek is the alter-ego of both DKMY and DKLC

Whether the Plaintiffs are entitled to aggravated damages based on conduct of the Defendants in relation to the alleged Agreement to Set Off. Analysis and Findings Illegality [9] The Defendants alleged that the Commission Agreement is in contravention of section 22C of the VAEAPM Act since neither RML or Lim are registered estate agents. The fact that they are not registered estate agents under the VAEAPM Act is not disputed. According to section 22C(1)(d) of the VAEAPM Act, they are accordingly not entitled to the Introduction Fee. The relevant provisions in sections 22B and 22C of the VAEAPM Act are as follows: Estate agency practice 22B. (1) Subject to the provisions of this Act, a registered estate agent who has been issued with an authority to practise by the Board shall be entitled to practise his profession and shall be authorized to undertake estate agency practice.

A person undertakes estate agency practice if he acts as an agent, or holds himself out to the public or to any individual or firm as ready to act as an agent, for a commission, fee, reward or other consideration -

in respect of any sale or other disposal of land and buildings and of any interest therein;

in respect of any purchase or other acquisition of land and buildings and of any interest therein;

in respect of any leasing or letting of land and buildings and of any interest therein;

in making known of the availability of land, building, or any interest therein for such sale or disposal, purchase or acquisition, or leasing or letting referred to in paragraph (a), (b) or

(c), as the case may be; and Section 22C (1)(d) of the Act reads as follows:

No person shall unless he is a registered estate agent and has been issued with an authority to practise under section 16 - ...

be entitled to recover in any court any fees, commissions, charges or remuneration for any professional advice or services rendered as an estate agent. [10] The Commission Agreement contemplated the possibility of either the purchase of the Property owned by SSTwo or the purchase of the shares of SSTwo. Ultimately, the subject of the SSA was the shares of SSTwo and not the land or building that comprise the Property. [11] Thus, the main plank of case in response to the alleged illegality is that the VAEAPM Act does not apply since the SSA did not but in company shares, and to the extent that the sale and purchase of the Property was an option, that part of the Commission Agreement was easily severable. [12] The Defendants contend otherwise and rely on Brilliant Team Management Sdn Bhd v South East Pahang Oil Palm Sdn Bhd & Ors [2006] 2 CLJ 1218 Brilliant Team where the High Court found on the facts of that case, that the brokering of transactions by unlicensed brokers for the sale and purchase of shares in companies holding the desired real estate also fell foul of sections 22B and 22C of the VAEAPM Act. [13] The distinction between a direct sale of property, and one effected through the sale of shares in a property holding company was not discussed in Brilliant Team. The case was also decided before the amendment to the VAEAPM Act on 17-10-2017 to introduce into section 22B, sub-section 1A on what constitutes an estate agency practice. [14] The legislative history of section 22B of the VAEAPM Act was briefly set out in the recent Court of Appeal decision of Kunci Semangat Sdn Bhd v Thomas Varkki M V Varkki & Anor [2022] CLJU 424 Kunci :

Pre-2011, the definition of estate agency practice was as follows: "estate agency practice" means acting or holding oneself out, to the public as ready to act, for a commission, fee, reward or other consideration, as an agent in respect of the sale or other disposal of land and buildings and of any interest therein or the purchase or other acquisition of land and buildings and of any interest therein or in respect of the leasing or letting of land and buildings and of any interest therein."

Section 2 was amended via a 2011 amendment act which came into force on 19 August 2011 to read as follows (additions in bold): "Estate Agency Practice" means acting or holding oneself out to the public or to any individual or firm as ready to act, for a commission, fee, reward or other consideration, as an agent in respect of the sale or other disposal of land and buildings and of any interest therein or the purchase or other acquisition of land and buildings and of any interest therein or in respect of the leasing or letting of land and building and of any interest therein including the act of making known of the availability of land, building or any interest therein for such sale or other disposal, purchase or other acquisition, leasing or letting";

The Act was further amended via the 2017 amendment act which came into force on 2 January 2018, wherein the definition of "estate agency practice" under section 2 was removed. Instead, the words of the definition and additional characteristics of estate agency practice were the subjects of the new sub-section 22B(1A), where clauses (a)-(e) were inserted to set out the full range of activities considered to be a part of estate agency practice. [15] VAEAPM Act, it defines is by the activities that fall within its scope. In other words, the VAEAPM Act regulates the activities of an estate agency practice. Considering this, the provisions of the VAEAPM Act are not only triggered when the activities result in the sale, purchase, acquisition, lease or letting of land and buildings and of any interest the Adopting a purposive approach and the mischief addressed in regulating the profession, the intent of the activities must be investigated, regardless of how the transaction manifests. [16] The amendment in 2011 has also served to broaden the scope of what constitutes the activities of an estate agency practice by including making known of the availability of land, building, or any interest therein for such sale or disposal, purchase or acquisition, or leasing or letting referred to in paragraph (a), (b) or (c), as the case may be In that contex, the transaction structure that follows from the regulated activity whether it is an asset deal, share deal or some other structure - is clearly immaterial. [17] interest was in role as he readily acknowledged, was in making known the availability of the Property to Koek for that purpose. According to Lim: Further, the Commission Agreement itself contains the following recitals: That the parties ultimately decided to deal in the shares of the company holding the Property, instead of the Property directly, did not materially change the activities undertaken by Lim and the end goal. [18] The next consideration is whether the Plaintiffs are therefore caught by the prohibition against non-registered players in the real estate business governed by the VAEAPM Act. Section 22B of the VAEAPM Act on what an estate agency business is has been interpreted in a number of authorities. In addition to the sub-paragraphs (a) to (e), a claim only falls within the prohibition of section 22C(1)(d) of the VAEAPM Act if the activity is undertaken as a regular practice or business. In that regard, there must be shown to be:

a system or a course of conduct which goes to show that RML was practicing or carrying on business as an estate agent, and that the acts of Lim that led to the SSA was not isolated with evidence of a system of such acts; and

Lim offered professional advice and other services as an estate agent, and no facts that conjointly negative the existence of such a relationship between the parties (Matad Sdn Bhd v Ng Chee Keong [2004] 2 CLJ 99 ( ), Teh Eng Peng & Anor v Teh Swee Lian [2006] 2 MLJ 305 Teh and Ong Thean Chye & Ors v Tiew Choy Chai & Anor [2011] 1 CLJ 674) [19] In Kunci Semangat, the Court of Appeal confirmed that despite amendments to the VAEAPM Act, the above remain good law: [95] Hence, based on Matad and Teh Eng Peng, these must be cogent and compelling evidence to establish that there was some system or continuity about the Plaintiffs' conduct before any inference of estate agency practice can be made [20] Further, Kunci Semangat also held that facts must be pleaded to establish the illegality: [81] No doubt, it is settled law that illegality that is ex facie must be taken cognizance of by the Court even if not pleaded, as most recently recognized by the Federal Court in Merong Mahawangsa. But, in this case, the Defendant failed to plead the elements which are necessary to maintain that defence namely:

that Plaintiffs had held out and represented themselves as real estate agents; and

particularised the estate agent relationship that allegedly existed between the parties; or

that the Plaintiffs were in the business of or practice of estate agency. [21] As pleaded, the Defendants assert that the consideration for the Commission Agreement is contrary to law and void because neither Lim nor RML are registered estate agents, but no facts were pleaded that Lim or RML were carrying on the business or practice as an estate agency. The relevant pleadings all read something like this with no particulars: [22] Based on the evidence adduced without objections and the legal submissions offered on this point, this Court also considered the factors that the Defendants rely upon to prove that Lim and/or RML was practising or carrying on an estate agency business. They are:

the detail and formality of the Commission Agreement;

the advice given by Lim that DKLC can save on stamp duty if it purchases the shares of SSTwo and not the Property; and

issuance of tax invoices for the Introduction Fee. [23] On the above submission, the Plaintiffs referred to Lim that Koek was a long-time friend who was interested to buy a piece of land for investment and/or development. Having useful information, Lim took the opportunity to broker a deal. Koek agreed to pay Lim the 1% introduction fee and so he introduced SSTwo to Koek. Lim and Koek decided to use RML and DKMY to document the payment of the Introduction Fee. [24] The above facts are largely undisputed. There was no reason to impeach the credibility of Lim and Phuah Bee Har (the director of RML, testifying as PW2) when they testified that this was the first and only such property related transaction that they had undertaken. According to Lim, PW2 is his nominee and RML is a corporate entity used for various purposes. [25] Beyond connecting Koek to SSTwo, this Court found no evidence in this case that Lim and/or RML had any system set up to run an estate agency business, or any course of conduct to show that that Lim and/or RML were doing so; or that they rendered any professional advice or services rendered as estate agents. [26] Lim engaged solicitors to draw up a bespoke Commission Agreement between RML and DKMY, but as seen in Teh Eng Peng, the fact that a written agreement was drawn up to authorise the respondent to sell the lands and provide for a commission did not point to a system or continuity of the conduct or activity in question. invoices, the evidence showed that it had the template of an invoice for the sale of goods and Lim had to be chased to have RML issue them. [27] As for professional advice or services rendered as an estate agent, there was no case put to Lim that he participated in negotiations with the vendor, provided any market information or assisted DKLC with any due diligence. The advice that Lim gave Koek that proceeding via a share sale would save on stamp duty was referred to by Lim as a suggestion to an issue raised by Koek. Considering the relative sophistication of Lim and Koek, the fact that DKLC was represented by solicitors in the SSA, this Court rendered as an estate agent or even necessarily correct advice. [28] By the above account, this Court finds on a balance of probabilities that neither Lim nor RML were proven to be practising or carrying on business as estate agents at any material time. It was a one-off transaction between Lim and Koek as friends and documented as a Commission Agreement between RML and DKMY. Variation [29] The Defendants also alleged in the alternative that the Commission Agreement had not been breached because the terms of payment had been varied. According to the pleaded Defence, the alleged variations were a rebate of RM150,000.00 to the Introduction Fee and an undertaking or agreement that the Introduction Fee would only be payable after the Plaintiffs procure the re-sale of the Property to a third party. [30] This Court found the WhatsApp conversations relied upon by Koek as evidencing the alleged variations to be sketchy and inconclusive. Lim denied agreeing to the alleged variations. In any event, they were not evidenced in writing by way of a formal amendment of the Commission Agreement as required by the following boilerplate clauses: [31] As such, there is no merit in this defence. The fact that it was pleaded and raised by the Defendants at all is problematic as it requires the Defendants to adopt an inconsistent stance with regards to the validity of the Commission Agreement. In the words of Sir Nicholas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376 at pg 383-384: possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an [32] At this point, neither of the defences to DKMY obligation to pay the Introduction Fee to RML have been made out. Privity of contract Whether Lim has privity of contract to claim the Introduction Fee as the alter ego of RML [33] On the face of the Commission Agreement, Lim is not a party. Lim is also not a director, shareholder or employee of RML. DKMY claims that Lim is therefore not a party to the Commission Agreement and cannot enforce it based on the privity doctrine. Lim claims to be entitled to sue under the Commission Agreement in his own name as the alter ego of RML. [34] The evidence of Phuah Bee Har as the director and shareholder of RML, is that she holds these positions as a nominee for Lim. Lim and Phuah Bee Har corroborated each other and on the facts and evidence, this Court is prepared to find that Lim effectively controlled RML through However, an agency or trust relationship between Lim and RML so as to confer Lim with the benefit of contracts entered into by RML was not pleaded. [35] In law, Lim and RML are separate entities and there needs to be a sound legal basis to contend that they can be treated interchangeably as one and the same for purposes of privity of contract and locus to sue. Ordinarily, the alter ego theory is used to justify lifting the corporate veil and there is no authority for the proposition that it can stand alone as an exception to the privity doctrine, and in this case, to clothe Lim with locus standi to sue on the Commission Agreement in his own name. [36] In other words, veil-piercing is what allows a non-party to a contract to be treated as a party and the law is clear that this is only permitted in exceptional circumstances such as when the corporate personality is abused for the commission of fraud and evasion of liability. It is a legal remedy to impose liability and there must be evidence of an actual fraud or instances of equitable fraud. The circumstances allowing for the lifting of corporate veil are absent altogether in this case. [37] For the above reason, this Court declines to make the declaration that Lim is the alter ego of RML and thereby entitled to sue in his own name for the benefit of payment of the Introduction Fee under the Commission Agreement. It is also unnecessary to risk undermining the fundamental doctrines of privity of contract and separate legal entities when by deliberate design, Lim has made it contract, cause of action and remedy, not his own. [38] To fortify this decision, RML and DKMY as the parties to the Commission Agreement, have included the following clause: Whether liability for the Introduction Fee may be imposed on DKLC and Koek because Koek is the alter-ego of both DKMY and DKLC [39] As for the Defendants, the Plaintiffs pleaded case is that both DKMY and DKLC are controlled by Koek, a director and that this Court should therefore disregard the notional separateness between all 3 entities, again pleading the alter ego theory. As between DKMY and ingle economic unit DKMY was not pleaded. [40] The factual basis for the argument that Koek is the alter ego of both DKMY and DKLC is that he holds close to 100% of the equity in both companies with the remaining shares held by his daughter. For completeness, the constitution of these companies are as follows: Company Constitution DKMY Directors Koek Lim Khoon Lee Koek Lim Khoon Lee Shareholders Koek (1,999,999 shares) Lesley Koek Ho (1 share) Koek (297,132,900 shares) Lesley Koek Ho (4,617,100 shares) [41] That may be so, but the question remains whether there is any justification to lift the corporate veil. It is settled law that there must be evidence either of actual fraud or some conduct amounting to fraud in equity to justify the lifting of the corporate veil . As affirmed by the Federal Court in Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73: The position of the law on this subject had been clearly stated by Gopal Sri Ram JCA (as he then was) in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 at p. 362 as follows: of the more recent authorities such as Adams v. Cape Industries Plc, it is not open to the courts to disregard the corporate veil purely on the ground that it is in the interests of justice to do so. It is also my respectful view that the special circumstances to which Lord Keith referred include cases where there is either actual fraud at common law or some inequitable or unconscionable conduct amounting [42] The Plaintiffs contend that there was unconscionability amounting to fraud in equity in relation to conduct in the Sessions Court Suit in (a) denying the Agreement to Set Off; (b) engineering a default Judgment against Lim; and (c) initiating bankruptcy proceedings on the default Judgment. [43] To recap, the subject of the Sessions Court Suit was the friendly loan of RM800,000.00 given by Koek to Lim between March and Aug

The evidence suggested that Lim wanted RML to be paid the Introduction Fee and Koek wanted to get repayment of the loan. Neither admitted to initiating the idea of a set off and it was apparent that there were other undisclosed goings on between Lim and Koek that affected the dynamics of their relationship. [44] , Tee Ei Lian (testifying as DW1) testified at the trial that it was Lim who told her there was an agreement to set off and that was the reason for the WhatsApp communications between them. In particular, the following extract is material: [45] For reasons that are not clear, Lim delayed the issuance of the requested letter from RML and eventually, the following documents were generated:

Tax Invoice for RM800,000.00 dated 22-2-2019 from RML to

Letter dated 7-10-2019 from RML to DKLC, confirming ,000.00 and attaching a further Tax Invoice for RM963,000.00 for the rest of the Introduction Fee [46] The letter dated 7-10-2019 was not signed by Lim nor did it contain the requested instruction to DKLC to issue RM800,000.00 to Koek in settlement of the friendly loan documented in the 8-8-2017 letter between Lim and Koek, or set out the indemnity in favour of DKLC. There was no further follow up until the litigation. [47] Lim assumed that the set off was completed, but Koek obviously considered that there was no Agreement to Set Off. DW1 testified that apparently, the paperwork provided by Lim was not acceptable to auditors. No case was put to Koek nor was it proved that he had received payment of the RM800,000.00 from DKLC. [48] The friendly loan between Lim and Koek and the Commission Agreement between RML and DKMY were separate contracts involving different parties. the loan had been paid by set off by part of the Introduction Fee, the burden was on Lim to prove there, that the Agreement to Set Off was:

formed as a valid, binding and enforceable tripartite contract between Lim, Koek and DKMY/DKLC; and

fully performed ( ). It is not directly in issue to determine the primary claim in this action. [49] As findings of fact would have been made by the Sessions Court in deciding the SC Defence against Lim and the matter is further pending appeal, this Court declines to answer the same questions. Further and in any event, the Plaintiffs have presented a circular argument. Putting DKLC aside for the moment:

to pierce the corporate veil between Koek and DKMY/DKLC, the Plaintiffs must first prove that there is fraud in equity in

to of it, the Plaintiffs must first prove that the corporate veil between Koek and DKMY/DKLC should be pierced. [50] At this point, it is instructive to refer to the Federal Court decision in Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors [2021] 4 CLJ 821 where the following passage from the judgment of Lord Sumption in Prest v. Prest and others [2013] 4 All ER 673 was cited: wrongdoing. References to a 'façade' or 'sham' beg too many questions to provide a satisfactory answer. It seems to me that two distinct principles lie behind these protean terms, and that much confusion has been caused by failing to distinguish between them. They can conveniently be called the concealment principle and the evasion principle. The concealment principle is legally banal and does not involve piercing the corporate veil at all. It is the interposition of a company or perhaps several companies so as to conceal the identity of the real actors will not deter the courts from identifying them, assuming that their identity is legally relevant. In these cases the court is not disregarding the 'façade' but only looking behind it to discover the facts which the corporate structure is concealing. The evasion principle is different. It is that the court may disregard the corporate veil if there is a legal right against the person in control of it which exists independently of the company's involvement, and a company is interposed so that the separate legal personality of the company will defeat the right or frustrate its enforcement. Many cases will fall into both categories but in some circumstances the difference between them may be critical... [46] The Federal Court in Ong Leong Chiou explained: [46] I comprehend this paragraph as stating that:

The company's veil of incorporation might be lifted if it is being utilised for some relevant wrongdoing;

(ii) The first step is to identify such relevant wrongdoing. In this context, the interchangeable use of 'façade' and 'sham' is too vague and gives rise to confusion;

(iii) Two distinct principles lie behind the terms 'façade' and 'sham' respectively;

(iv) Where the wrongdoing relates to the abuse of the corporate personality as a 'façade', the principle to be applied is that of concealment. This principle does not entail the piercing of the corporate veil. The interposition of a company or perhaps several companies so as to conceal the identity of the real actors will not prevent the courts from identifying the real actors. There is no piercing because the court is not disregarding the façade but looking behind it to discover the facts which the corporate structure is concealing;

Where the wrongdoing relates to the abuse of the corporate personality as a 'sham', the principle to be utilised is that of evasion. In evasion the court may disregard the corporate veil if there is a legal right against the person in control of it which exists independently of the company's involvement and a company is interposed so that the separate legal personality of the company will defeat the right or frustrate its enforcement; and

(vi) Many cases will fall into both categories. [51] On the question of lifting/piercing the corporate veil, the only relevant question is to be asked in the Sessions Court Suit i.e. whether a legal right exists against Koek in relation to the Agreement to Set Off exists independently, and DKMY/DKLC are interposed so that the separate legal personality of the companies will defeat the right or frustrate its enforcement. It has not escaped me that the principal claim in this action is for breach of the Commission Agreement by DKMY and the question must be asked, how was the corporate veil of DKMY and DKLC abused to conceal or evade a relevant wrongdoing in this case? It was not. [52] Considering the pleaded justification for piercing/lifting the corporate veil to unravel a fraud following Solid Investment Ltd v. Alcatel Lucent (M) Sdn Bhd [2014] 3 CLJ 73, Gurbachan Singh s/o Bagawan Singh & Ors v. Vellasamy s/o Pennusamy & Ors [2015] 1 CLJ 719, Giga Engineering & Construction Sdn Bhd v. Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537 and many more, it is not pleaded in this case that DKMY/DKLC were interposed as the contracting party in the Commission Agreement by Koek to evade liability or commit a fraud. [53] It will be recalled that the only reason for raising the alter ego theory at all is the personal action taken out by Koek against Lim in the Sessions Court Suit, and the allegation that there is conduct amounting to a fraud in equity in resisting the SC Defence. However, for what it is worth, this Court is of the view that the conduct of litigation in an adversarial system can be brutal, but in most cases, quite legitimate. It cannot amount to inequitable or unconscionable conduct amounting to a fraud in equity. Barring questions of professional practice and etiquette, it is not inequitable or unconscionable conduct amounting to fraud in equity for Koek to deny the Agreement to Set Off and resort to an aggressive litigation strategy in the Sessions Court Suit. It was not beyond the pale as Koek was legally represented and can be vindicated in the litigation. [54] To reiterate, the Agreement to Set Off has no nexus to the attempt here to impose joint and several liability for the Introduction Fee on Koek and DKLC when the obligor under the Commission Agreement is DKMY alone. Consequently, this Court finds the corporate veil of DKMY is intact and Koek/DKLC are not liable to RML under the Commission Agreement. Aggravated damages [55] The trial in the Sessions Court Suit concluded well before this action and the Sessions Court found for Koek (Plaintiff in the Sessions Court Suit) on 10-1-2025. It granted Judgment for the RM800,000.00 claimed by Koek on a friendly loan. The Plaintiffs appear to concede this by seeking the full Introduction Fee of RM1,763,000.00 without set off in post-trial submissions here, though it was made known that Lim is appealing. [56] As a basis for aggravated damages, Lim still maintains that there was an Agreement to Set Off. However, this Court has taken the view that the actions complained of about the conduct of the Sessions Court Suit, including the propriety of the SC Defence, default judgment and commencement of bankruptcy proceedings, were par for the course in an adversarial system. [57] In any case, the award of aggravated damages must be principled. It is classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant (Sambaga Valli A/P KR Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors And Another Appeal [2018] 1 MLJ 784) [58] In this case, the breach of the Commission Agreement is a straightforward contractual claim. The conduct of Koek in the Sessions Court proceedings did not amount to exceptional conduct that can be said to have humiliated or injured feelings in the prosecution of this action. The only purpose for impleading Lim in this action at all was to bolster the SC Defence. Conclusions [59] The Commission Agreement is valid and enforceable as sections 22B and 22C of the VAEAPM Act are not applicable to RML who is not carrying on an estate agency practice. There was no variation to the terms of the Commission Agreement and on largely undisputed facts, DKMY breached its payment obligations under the Commission Agreement and is liable to pay the Introduction Fee of RM1,763,000.00 to RML. [60] As the parties to the Commission Agreement are RML and DKMY alone, Lim has no privity of contract to claim on it and neither is there liability thereunder on Koek and/or DKLC. No general, aggravated or exemplary damages were proven b breach of the Commission Agreement. [61] The Court accordingly orders judgment to be entered on the claim by the 1st Plaintiff as against the 1st Defendant in the sum RM1,763,000.00 with interest at 5% p.a. accruing from the date of the Writ until full payment. Costs to be paid by the 1st Defendant to the 1st Plaintiff in the sum RM30,000.00 following the event. No orders as to costs in respect of the other parties. Bertarikh : 28 April 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif-Plaintif: Justin Chin E-Loong, Messrs Justin Chin Untuk Defendan-Defendan: Manpal Singh Sacdev (with Helmi Zaharin), Messrs Manjit Singh Sachdev Mohammad Radzi & Partners