1. ) Shangdong Linuo Photovoltaic Hi-Tech Co. Ltd v 1. ) Myangkasa Service Sdn Bhd (BA-22NCvC-121-03/2021)

1.

2.

SHUN LONG ENTERPRISE (M) SDN BHD (NO. 1193337-A) LV YANG SDN BHD (NO. 1249459-X)

1.

MYANGKASA SERVICES SDN BHD (NO. 1071724-A) MYANGKASA HOLDINGS SDN BHD (NO. 1029674-X) 01/08/2023 11:00:43 BA-22NCvC-121-03/2021 Kand. 42 JUDGMENT (Enclosure 28 – Application by Third Plaintiff) [1] It is an application by the third plaintiff (P3) to record judgment on admission of facts against the defendants. The first plaintiff (P1) took the position to abide by order of this court. The second plaintiff (P2), being a wound-up company did not participate in the proceeding. [2] At the outset, it has been informed to this court there is a settlement agreement between parties which is yet to come to fruition. Hence, P3 filed an application vide enclosure 28 to record judgment on admission of facts. There were a series of dates fixed for case management (CM) in order for the defendants to revert to court on the payment sum, but to no avail. Thus, P3 filed the application before the 4th date for CM on 20.7.2022, but heard after that date. Prima facie, it is apparent on the face of record, there is intention evinced by the defendants to conclude the settlement agreement, by making payment of the settlement sum to P3. [3] Confirmation is on the payment of debt amounting to RM9.5 million by the defendants to P3. [4] The only pending issue pertains time period as to when payment would be made. This is because the defendants were awaiting approval from the Cooperative Commission of Malaysia (SKM). There is a letter dated 3.8.2022 produced in court vide exhibit YKH 8 to the affidavit in support by P3, in enclosure 31, which is a confirmation by the Legal Adviser to Angkasa that they are committed to settle P3’s monetary claim but more time is necessary for the matter to be deliberated at Mesyuarat Lembaga ANGKASA. At that point of time the meeting was scheduled in the month of August 2022. Therefore, to all intents and purposes, there is in place a commitment to settle the debt due to P3 by the defendants. The said commitment is unconditional and unequivocal. [5] Prior to that letter, there was also a letter dated 28.3.2022, produced as exhibit YKH 7 to the same enclosure 31 and consent judgment of the court dated 19.11.2021, produced as exhibit YKH 6 to enclosure 31, also signifying, parties have principally agreed to the payment of an amount of RM9.5 million. Exhibit YKH 6 renders the following: Parties are in the final stage of the negotiation for the out of court settlement and the only remaining main issue to be discussed upon and finalized between the parties is the terms of payment for the payment for the agreed sum between the parties. [6]

On the dates of case management – 20.4.2022, 17.5.2022,

6.2022 and 20.7.2022, parties indicated the same, that the defendants are jointly and severally liable to pay the debt owed to P3, amounting to RM9.5 million. [7] On that score, a myriad of adjournments was sought by the defendants and granted by this court, pending approval by SKM. In fact, the scheduled trial dates were vacated to allow time for payment to be made on the application by counsel for defendants. Progress of the case vis a vis settlement of the debt due to P3 (as highlighted in bold) is demonstrated by the following minutes of proceeding:

2.3.2022 For case management via Zoom. Trial date fixed on 20.4.2022. Tan Zi Kang for P1 and P2 Ganesh Magenthiran for P3. Lim Woi Kein for defendants.

Status – There is progress of settlement.

Few more issues to be discussed.

On PTCM documents - no direction yet on Bundle of Pleadings to be filed and served. Common Bundle of Documents or in the alternative Plaintiff and Defendant's Bundle of documents respectively to be filed and served. Agreed Facts and Issues to be tried to be filed and served, on or before 30.3.2022. To - 6.4.2022 for final case management via Zoom. Status of Enclosure 11 - an application under O29 rule 2 ROC to be reviewed on the date of case management. Trial date on 20.4.2022 maintained.

6.4.2022 Ganesh Magenthiran for P3 mentioning on behalf of counsel for P1 (Yeoh Shim Siow and Lay Kuan). P2 which is under receivership is unaware of today's date. Counsel for P3 undertakes to inform P2 of the status of case as of today. Lim Wei Kein for D1 and D2. For case management.

Status – In principle matter is resolved and a settlement sum is agreed.

An amount of RM9.5 million is the settlement figure.

Is full and final settlement for all the matters arising in this suit.

Pending issue is duration of payment of the settlement amount.

Defendants unable to confirm the dates of payment.

Parties are in the midst of finalizing the settlement agreement.

Defendants are waiting for confirmation from Suruhanjaya Koperasi Malaysia.

Prayer by counsel for both parties – For the trial dates to be vacated.

Pray for a case management date in a month's time in order to prepare and finalize the settlement agreement between parties.

If concluded - suit may be withdrawn. To - 17.5.2022 for case management via Zoom for parties to revert on the settlement agreement. Trial date on 20.4.2022 is vacated.

17.5.2022 Tan Zi Kiang for P1 and P2 Ganesh Magenthiran for P3 Lim Woi Kein for D1 and D2 Counsel for P3 informs court that matter has been resolved principally. Pending is only the date payment to be made from the defendant. Counsel for D1 and D2 informs court that there would be a meeting at Suruhanjaya Koperasi Malaysia, during which the payment proposal would be advanced for discussion. The meeting is scheduled on 22.5.2022. Counsel for D1 and D2 prays for a date three weeks after 22.5.2022. Counsel for P3 is agreeable. Counsel for P1 and P2 is agreeable as far as P1 is concerned. With regard to P2, there would be an application filed to discharge as solicitors for P2. Application is yet to be filed. Court directs for the application to be filed and served on P2, so that its representative could appear to inform the court on their further course of action. To - 16.6.2022 for case management for all parties to revert on the settlement.

16.6.2022 Ganesh Magenthiran for P3 mentioning on behalf of counsel for P1. P2 wound up. Mathew Cheong for D1 and D2.

Status – Parties have reached an agreement to settle.

Only left date for payment of settlement sum not confirmed yet.

Counsel for defendant prays for time for the monies to be paid. Seeking approval from Cooperatives Commission Malaysia, so that parties can finalize payment.

Pray for a month date.

Counsel for plaintiff prays that there would not be any more delay. To - 20.7.2022 for case management via Zoom.

20.7.2022 Ganesh Magenthiran for P3. Andy Yeoh for P1 P2 is unrepresented - status - company is wound up - as of to date, they are aware of the legal proceeding but no step taken to appear. Kabilan Mathavan for D1 and D2.

Status – Settlement agreement has been drafted. Critical issue is the payment date.

Enclosure 28 filed - for judgment by admission - pursuant to O27 rule 3.

Approval from SKM is pending.

Court has advised counsel for D1 and D2 to enquire from SKM, as to when a decision would be made as the plaintiff are anxiously waiting for a decision and the court shall not wait forever for the decision.

Counsel for plaintiff registers his unhappiness with regard to how the case has been derailed. To - 4.8.2022 for case management via Zoom for counsel for D1 and D2 to inform the court as to the time period by which SKM would be able to decide on the settlement. It has to be in writing. Case management for enclosure 28 as well as for enclosure 1.

4.8.2022 Ganesh Magenthiran for P3 Andy Yeoh for P1 P2 - unrepresented - under winding up

Status – Letter dated 3.8.2022 - e filed.

Firm commitment made that matter would be settled.

Pending approval by Board.

To obtain plaintiff's instruction on the matter.

Counsel for plaintiffs pray for time to obtain instruction.

Matter has been on hold for a very long time.

Counsel for defendant leaves it to discretion of court. To - 17.8.2022 for case management via Zoom. For parties, especially plaintiff to revert with instructions on the matter.

17.8.2022 Ganesh Mahenthiran for P3 Andy Yeoh for P1 P2 - unrepresented - under winding up

Status as on 4.8.2022 – Letter dated 3.8.2022 - e filed.

Firm commitment made that matter would be settled.

Pending approval by Board.

To obtain plaintiff's instruction on the matter.

Counsel for plaintiffs pray for time to obtain instruction.

Matter has been on hold for a very long time.

Counsel for defendant leaves it to discretion of court. To - 17.8.2022 for case management via Zoom. For parties, especially plaintiff to revert with instructions on the matter.

Status today – Plaintiff not rejecting proposal for settlement.

Plaintiff to proceed with application for judgment by admission.

Application - enclosure 28 - application has been served. No AIS yet. As for enclosure 28, plaintiff to file and serve AIS on or before 1.9.2022. Enclosure 28 to be served on P2 P1, P2, D1 and D2 to file and serve AIR on or before 15.9.2022. P3 to file and serve AIR (if any) on or before 30.9.2022. Hearing of application on 6.10.2022 via Zoom. Counsel for P1 informs court that as there is a consent judgment entered between P1 and P3, they do not wish to file an AIR and they would abide by any judgment of this court.

6.10.2022 Ganesh Magenthiran for P3 Andy Yeoh for P1 P2 - wound up - no representation. R Maran for D1 and D2. For Hearing of application - enclosure 28.

Status – D1 and D2 still committed to settle the matter.

No exact date to obtain the SKM's approval.

Counsel for D1 and D2 - has been unable to obtain any instruction on the payment - pray time of two weeks to file and serve AIR

Counsel for P3 objects. Court grants two weeks for D1 and D2 to file and serve AIR on or before 21.10.2022. Counsel for P3 is also allowed to file and serve AIR on or before 4.11.2022. Final Hearing of Enclosure 28 - 24.11.2022 via Zoom.

24.11.2022 Ganesh Magenthiran for P3 Andy Yeoh for P1 P2 - wound up - no representation. Kabilan for D1 and D2 unable to attend - counsel for P3 undertake to inform him of development of case today. For Hearing of application - enclosure 28.

Status – D1 and D2 still committed to settle the matter.

No exact date to obtain the SKM's approval.

Counsel for D1 and D2 - has been unable to obtain any instruction on the payment - pray time of two weeks to file and serve AIR

Counsel for P3 objects. Court grants two weeks for D1 and D2 to file and serve AIR on or before 21.10.2022. Counsel for P3 is also allowed to file and serve AIR on or before 4.11.2022. For Final Hearing of Enclosure 28.

Counsel for P3 – Application to record judgment.

AIS and AIR filed.

No affidavit by P1. No objection to the application. Counsel for P1 confirms so.

Application under O27 rule 3 - judgment by admission.

On the facts, the admission is as to the amount of RM9.5 million settlement sum. There were two letters issued - dated 28.3.2022 and 3.8.2022. There is a challenge to these two letters as it was issued on a without prejudice basis. Stated so in the letters. Liability is deemed admitted. Letter was obtained from the Koperasi - position reaffirmed - only pending release of funds.

There is no need to fix a date of trial.

Conclusion of case - over a year.

Not clear if the admission for payment of quantum is with or without admission of liability.

When the letters were issued - the settlement terms were concluded. Only the settlement agreement is to be executed.

Only pending issue - time period - need approval from SKM.

O27 - rationale - quick resolution of the dispute. With the judgment - plaintiffs are in a better position to obtain the monies.

Matter concluded - pray for order in terms.

Counsel for P1 Current suit - filed March 2021.

Given enough time to defendants. Court will proceed to fix a date for decision on enclosure 28. If counsel for D1 and D2 wishes to submit in reply, he has to liaise with my SAR accordingly. To - 11.1.2023 for decision via Zoom.

11.1.2023 Ganesh M for P3 Andy Yeoh for P1 P2 not represented - company under winding up - still under official receivership - notified but absent. Kaabilan for defendants. For decision on enclosure 28.

Counsel for defendants – Preliminary objection raised - the NOA is defective - filed before the cause of action arose.

Enclosure 28 - at prayer (1) - NA dated 19.7.2022; whereas the admission was made on one of the dates 20.7.2022.

Prior to that - no admission made.

It is not and/or - NA is defective.

In the event the PO is futile - all the letters pleaded - enclosure 31 - are letters without prejudice - and cannot be admitted in this court.

No express admission by defendants - although parties informed court - negotiation was pending - but it is negotiation - not an admission.

No admission in the pleadings.

Negotiation - in the spirit of settlement.

Process is ongoing. Counsel for P3 - 1. No notice given that defendants wanted to submit on this issue.

Not prepared to respond on the issues.

I wish to reply.

Correct - NA filed before the 4th date of CM - what is most important - that CM date mentioned - there is no discussion but confirmation - to conclude the settlement agreement.

RM9.5 million is the debt payable by the defendant.

Pending was only - time period to have it to be settled - to get the approval from the Suruhanjaya – three - or four-time adjournments were granted - only for the monies to be released.

Letter by Suruhanjaya - committed to settle the matter - only time is needed.

Here admission without any condition.

Although without prejudice - once disclosure is made to the court - on the contents of the letter - later communicated to the court - cannot be situation - where claim of without prejudice could be made.

We have fulfilled the requirements under Order 27 - pray for order in terms with costs to be paid to the plaintiff.

Counsel for defendants – That NA filed before cause of action arose - ought to be dismissed on that score.

Counsel for P1 Pray for the order to allowed with costs. To - 9.2.2023 for decision on enclosure 28.

9.2.2023 For decision on enclosure 28 – application by P3 against the defendants. P1 to abide by the order of the court. Counsel for P3 – Ganesh M Counsel for P1 – Andy Yeoh Counsel for defendants – Kaabilan M Brief grounds of judgment read out:

Although enclosure 28 was filed before the 4th date of CM, but it is apparent there is an intention on the part of defendants to conclude the settlement agreement.

Confirmation is as to the RM9.5 million debt payable by the defendant.

The issue pending is only in respect of the time period for the amount to be paid, as approval has to be sought from the Suruhanjaya Koperasi Malaysia. A letter from the Principal Cooperative confirms that only time is needed for the payment to be settled but for all intents and purposes, there is a commitment to settle the debt due.

Various adjournments had been sought by the defendant for that purpose.

Hence, on the face of the record, there has been an unequivocal admission by the defendant to settle the debt due to P3.

On those facts, the case squarely falls within the ambit of O27 rule 3 (1) ROC 2012, as the admissions of fact, herein on liability and quantum have been unconditionally made by the defendants. Thus, it is appropriate for P3 to apply to this court for a judgment on the admission made.

P3 is entitled to a speedy judgment as envisaged by O27 rule 3 (1) ROC.

Hence, this court grants order in terms of enclosure 28 and judgment is recorded as prayed for in paragraph 2 of enclosure 28.

Costs – counsel for P3 prays for costs of RM15,000. Counsel for P1 goes along with P3 – in no position to pray for costs. Counsel for defendants – pray for costs of RM5000. Court allows costs of RM8000. Application in enclosure 28 allowed with costs of RM8000. Judgment as prayed for in paragraph 1, 2 and 3 of enclosure 28 is allowed. [8] Factual matrix of the case, falls squarely within the ambit of O27 rule 3 (1) of the Rules of Court 2012 (ROC), as there is on record unconditional admissions of fact by the defendants, on liability and quantum. This has gravitated P3 to apply to this court for a judgment on the admission of facts made by the defendants, without any further ado. For completeness, O27 r 3 (1) renders the following:

Judgment on admission of facts. (O. 27, r. 3)

Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just.

An application for a judgment or order under this rule shall be made by a notice of application. (emphasis is mine) [9] P3 is entitled to a speedy judgment as envisaged by O27 rule 3 (1) ROC. This court granted order in terms of enclosure 28 and judgment is recorded as prayed for in paragraph 2 of enclosure 28 on the following terms: “MAKA ADALAH PADA HARI INI DIPERINTAHKAN seperti berikut: -

Satu perintah bahawa Defendan-Defendan dalam pengurusan kes bertarikh 20.04.2022, 17.05.2022, 16.06.2022, dan 20.07.2022 untuk prosiding guaman ini telah mengakui fakta bahawa Defendan-Defendan adalah secara bersama dan berasingan bertanggungan atau berhutang dengan Plaintif wang sejumlah RM 9,500,000.00 juta kepada Plaintif Ketiga yang dinamakan dalam tindakan guaman ini;

(ii) Satu perintah bahawa Defendan-Defendan selaras dengan pengakuan yang dibuat dalam Pengurusan Kes tersebut adalah secara bersama dan berasingan bertanggungan atau berhutang dengan Plaintif wang sejumlah RM 9,500,000.00 juta kepada Plaintif Ketiga yang dinamakan dalam tindakan ini.

(iii) Kos permohonan sebanyak RM 8,000.00 ditanggung oleh Defendan-Defendan terhadap Plaintif dalam tindakan guaman ini. Bertarikh pada 09 haribulan Februari 2023 … “ [10] The order made, is supported in law by O27 r 1 ROC, wherein the defendants as party to the proceeding with the plaintiff, has given notice of admission of facts to pay the settlement amount due vide letter exhibited as YKH 8 dated 3.8.2022, its precursor YKH 7 dated 28.3.2022 and YKH 6 dated 19.11.2021, expressing their unequivocal and unconditional admission to the truth of the claim by P3 and they wish to settle it amicably. The admission is by agreement of parties to the civil suit, which is clear, unambiguous and voluntary. In that respect, section 58 of the Evidence Act 1950 (Act 56/EA) becomes operable, which states that facts admitted need not be proved vide evidence in court, which saves much judicial time and costs. Resulting from that, pursuant to O27 r 3(1) ROC, and vide application by P3 in enclosure 28, as there is admission of facts by the defendants on both liability and quantum of settlement for a liquidated sum, this court granted judgment on the admission of facts made. [11] Argument was advanced by counsel for defendants that the letters intimating payment of the settlement sum was made on a without prejudice basis, thus section 23 EA applies. It renders the following: In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. Explanation – Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 126. In that respect, the dictum of Lindley LJ in the case of Walker v Wilsher (1889) 23 QBD 335 is biting and applicable to the factual matrix of the present case. His Lordship then decided: What is meant by the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted, a complete contract is established, and the latter, although written without prejudice, operates to alter the old state of things and to establish a new one. A contract is constituted in respect of which relief by way of damages or specific performance would be given. (emphasis is mine) Taking the cue from Lindley LJ, in the present case, pursuant to what has transpired amongst parties, evidenced by the minutes of proceeding referred to above and with the acceptance of settlement sum by both P3 and defendants, the only pending issue is approval by SKM before payment is made. Thus, a fresh agreement by admission is constituted in respect of which a judgment on admission of facts can be recorded. It is well justified. A further justification for a judgment on admission of facts to be recorded, is found in the pronouncement of Chang Min Tat FJ in the case of Malayan Banking Bhd v Foo See Moi (1981) 2 MLJ 17, where His Lordship had decided: It is settled law that letters written without prejudice are inadmissible in evidence of the negotiations attempted. This is in order not to fetter but to enlarge the scope of the negotiations, so that a solution acceptable to both sides can be more easily reached. But it is also settled law that where the negotiations conducted without prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement, unless of course the agreement has become incorporated in another document which would then be the evidence of the agreement. (emphasis is mine) It is axiomatic, in the present case, the letters of admission by defendants is admissible as proof, albeit it being written on a without prejudice basis, on the terms of the settlement pursuant to the settlement agreement entered into by both P3 and defendants. It is also a fact that aside the letters which is written on a without prejudice basis, counsel for defendants had unequivocally admitted in court the defendants are able and willing to settle the settlement sum save for the approval from SKM. [12] Aside the rule of law, on the facts of case, P3 has a legitimate expectation for its claim against defendants to be settled. It is not only the wish of the plaintiff but also at the instance and conduct of the defendants, which could be gleaned from the letters they have sent to the plaintiff and the minutes of proceeding referred to above. It is clear as crystal, the defendants are determined on settlement of the claim. In that respect, of course P3 would have wished a consent judgment to be recorded, but it seems the defendants do not wish that, as necessary approval from the authorities is not obtained. Meanwhile P3 is not in a position to wait any longer, hence the utilisation of the avenue available pursuant to O 27 r 3 ROC to have the matter resolved with the defendants. In the premise, the ROC also renders it possible for P3 to do so. Hence, the judgment on admission of facts by the defendants is recorded. [13] As to costs, counsel for P3 prayed for an amount of RM15,000 which was also agreed to by counsel for P1, who is not in a position to pray for costs, as the application in enclosure 28 is moved by P3. Conversely, counsel for defendants prayed for this court to only allows costs up to RM5000. Premised on the entrenched principle, costs to follow the event, and P3 has been denied of the fruits of the settlement agreement, until it has to apply to this court for judgment on admission of facts to be recorded, this court allowed costs of RM8000. Judgment on admission of facts recorded. Dated 1 August 2023 SGD Muniandy Kannyappan Judge, High Court Ganesh Magenthiran of Messrs. Hakem Arabi & Assoc, counsel for P3. Kabilan Mathavan of the Law office of Maran Ram, counsel for defendants.