1. ) Sim Kooi Chuan v Nelson Sim Ping Hun (PA-22NCvC-147-06/2019)

Sim Kooi Chuan (NRIC No. 590622-07-5449)

Sim Kooi Lim (British Passport No. 543681442)

Sim Kooi Sun (NRIC No. 531024-07-5457)

Sim Kooi Tin @ Garman Kooi Tin (British Passport No. 544430666)

Sim Kooi Leng @ Tan Kooi Leng (British Passport No. 309533390) … Plaintif-Plaintif Dan Nelson Sim Ping Hun (NRIC No. 880701-07-5119) (sebagai Wasi Harta Pusaka Sim Ban Hong, simati) … Defendant JUDGMENT Introduction [1] This judgment concerns three applications that were heard together. They are: 12/07/2022 16:13:47

the inter partes application dated 17.6.2019 by the plaintiffs for an interim injunction pending disposal of the instant suit (enclosure 3);

(ii) an application dated 7.8.2019 by the defendant that the plaintiffs provide fortification for their undertaking as to damages in the sum of RM20 million or such sum as this Court deems fit (enclosure 14); and

(iii) an application dated 5.7.2021 to dissolve or set aside the ad interim injunction dated 3.7.2019 granted pending the disposal of the inter partes application (enclosure 69). [2] On 14.2.2022, I allowed enclosure 3 and dismissed enclosures 14 and 69. The reasons for my decisions are as follows. Background [3] The late Sim Ban Hong (“the deceased”) is the defendant’s paternal grandfather. The defendant’s father had passed away leaving behind five siblings who are the plaintiffs in this suit. action. The defendant claims to have been brought up by the deceased at No. 31, Peel Avenue, Georgetown, Penang. The deceased passed away on 26.12.2018 and the defendant claims that about two weeks later he discovered that the deceased had left a will dated 27.6.2013. The will named the defendant as the sole executor of the deceased’s estate and almost the whole of the estate was bequeathed to the defendant. [4] The defendant acted speedily and on 12.3.2019 probate was granted by the Penang High Court to the defendant. The plaintiffs filed the instant suit challenging the validity of the will and the grant of probate on the ground that the will was made under undue influence and/or that the deceased did not have the necessary testamentary capacity to make the will. The plaintiffs in the main are praying for the will to be declared null and void and for a declaration that the deceased died intestate. [5] On 19.6.2019, the plaintiffs obtained an ex parte interim injunction, inter alia, to restrain the defendant from selling, disposing, encumbering, damaging, parting with possession of and/or dealing with in any manner whatsoever all assets of the deceased’s estate. The assets include several properties and shares held in twelve limited companies worth millions. [6] The ex parte interim injunction lapsed on 10.7.2019 by virtue of O. 29 r. 1(2B) of the Rules of Court 2012 (hereinafter all rules referred to are to the Rules of Court 2012). On 3.7.2019 an order was made for an ad interim injunction to maintain the status quo upon the ex parte interim injunction lapsing until the disposal of the inter partes application (enclosure 3). [7] On 7.8.2019, the defendant applied for fortification for the plaintiffs undertaking as to damages (enclosure 14). Unfortunately, both enclosures 3 and 14 were adjourned from time to time mainly due to the control movement orders imposed by the government. On 29.11.2019, parties by consent agreed to the application by the defendant for the security for costs. [8] While enclosures 3 and 14 were pending, the defendant on 5.7.2021, filed an application to set aside the ad interim injunction granted on 3.7.2019 and consequently for damages to be assessed on the plaintiffs’ undertaking for damages (enclosure 69). I directed that enclosures 3, 14 and 69 would be heard together. Decision on enclosure 69 [9] The defendant sought to dissolve and/or set aside the ad interim injunction on the ground that the plaintiffs are guilty of inequitable conduct by being dishonest and/or having practiced deception on this Court. It is to be recalled that the said ad interim injunction was made at the request of the plaintiffs, on 3.7.2019, with no objection from the defendant. The purpose of the ad interim order was to maintain status quo until disposal of enclosure 3. The terms of the ad interim injunction were the same as the lapsed ex parte interim injunction. [10] The alleged dishonesty and/or deception on this Court was alleged to be perpetrated after the plaintiffs had obtained the ad interim injunction. The inequitable conduct alleged was said to have been committed by the plaintiffs’ solicitors who by their actions contradicted what was affirmed on oath by the plaintiffs in their affidavit in reply dated 30.8.2019 (enclosure 23) opposing the defendant’s application for fortification. The plaintiffs had therein when responding to the defendant’s allegation that the interim injunction sought is excessively wide with far reaching consequences, namely, preventing the shares in the deceased name from being transferred to the defendant and thereby preventing him from exercising powers and rights as a shareholder in order to protect the interest of the estate in the said companies had averred, on the advice of counsel, that the interim injunction will not prevent the shares in the name of the deceased from being transmitted to the defendant in his capacity as executor of the estate of the deceased in accordance with subsection 109(6) of the Companies Act 2016. This was a legal argument and was repeated in the plaintiffs’ written submissions opposing enclosure 14. [11] The defendant treated the legal argument in the affidavit as a representation from the plaintiffs to him and as a result through his solicitors wrote to the companies requiring the said companies to cause the relevant shares to be transmitted to the defendant in his capacity as executor of the estate of the deceased. The defendant said that the plaintiffs’ solicitors had written to two of the companies informing that the said position was yet to be decided by this Court and that in the meantime “all parties are bound to comply with the injunction and to maintain status quo unless and until the injunction is discharged by the Court”. [12] Enclosure 23 was affirmed by the plaintiffs on 30.8.2019. It was about 20 months later that defendant began directing the respective company secretaries to transfer the shares of the deceased in his name, that is to say, sometime in April 2021. It was asserted that two company secretaries wrote to the plaintiffs’ solicitors seeking confirmation on the defendant’s direction. The plaintiffs’ solicitors had advised for the status quo be maintained since the ad interim injunction was still in force. The defendant contended that the position taken by the plaintiffs was contrary to the position taken in the said affidavit and written submissions. By taking this contrary position it is argued that the plaintiffs’ have been dishonest and/or have practiced deception on this Court. It was further argued that the remedy of ‘injunction’ is an equitable remedy and that the plaintiffs did not come to court with clean hands. [13] This is clearly not a case of failure to make full and frank disclosure or a case of suppression of material facts at the time of granting an injunction albeit an ad interim injunction. Thus, it was futile to cite and for me to consider authorities on for such principles. This is a case where the defendant is relying on bad faith by the plaintiffs by taking an inconsistent position from that which was affirmed in an affidavit opposing another application. It is established law that bad faith on part of the party who had obtained an injunction by doing some act which ought not to be done while the injunction is in force is a ground to discharge the injunction that has been obtained. The case of Behbehani v. Salem [1989] 1 WLR 723 cited by the defendant is instructive. There Lord Woolf LJ said that where it is established that there has been bad faith either by the said party or his legal advisers such finding: … will be a most material matter in considering whether injunctions which have been granted should be discharged, and, if they are discharged, whether it is appropriate in the circumstances to regrant injunctions in the same terms or in similar terms. [14] I found no evidence of bad faith on part of the plaintiffs or their solicitors. The plaintiffs’ solicitors merely advised the company secretaries who approached them as to the legal position of the ad interim injunction which is trite law – which is to preserve the status quo after the ex parte interim injunction has automatically lapsed (RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 1 CLJ 457). The advice of the plaintiffs’ solicitors was in line with the ad interim injunction. Failure to maintain the status quo would have been a violation of the said ad interim injunction. The plaintiffs’ solicitors clearly kept within the law. However, the same cannot be said of the defendant who clearly violated the ad interim injunction by his actions which were not keeping the status quo. It was the defendant’s actions to cause shares in the name of the deceased to be transferred to his name that led the plaintiffs’ solicitors to advice the two company secretaries who sought confirmation of the legal position concerning the ad interim injunction. [15] The defendant further argues that the plaintiffs misled and deceived this court. This cannot be true. The plaintiffs’ averments and submissions were made in respect of enclosure 14 which was at that point in time yet to be heard by this Court. Therefore, the legal argument on the width of the interim injunction sought will only be determined at hearing of enclosure 14. But, at this moment in time, the ad interim injunction is in place and fully in force. The said injunction requires parties to strictly maintain the status quo but it was the defendant who failed to keep the status quo. [16] In view of the above, I had refused prayer (1) of enclosure 69 which sought to dissolve or set aside the ad interim injunction. As a result, the consequential relief as sought in prayer (3) which sought damages to be assessed on the undertaking was also refused. [17] This is not the end of enclosure 69. There was prayer (2) to contend with where the defendant sought leave of court to read and use the affidavit (enclosure 70) which is filed in support of enclosure 69 for the hearing of enclosure 3. It appears that the defendant did not file an affidavit in reply to enclosure 3 and affirmed at paragraph 18 of his affidavit in support (enclosure 20) for enclosure 14 as follows: I shall contest enclosure 3 solely on the ground that the said undertaking is an empty undertaking as the plaintiffs are ordinarily resident out of jurisdiction and do not have sufficient assets within the jurisdiction of this Honourable Court to meet their undertaking, and that the plaintiffs have in their application concealed this material fact from this Honourable Court, which in turn shows their lack of intention to honour the said undertaking. [18] Further, enclosures 3 and 14 are ready for hearing and submissions have been filed. Only on 5.7.2021, some two years after enclosure 3 was filed on 17.6.2019 is the defendant attempting to use enclosure 70 to oppose enclosure 3. [19] The plaintiffs argued that the defendant was attempting to circumvent the stipulated time period provided under the rules of court regarding filing of affidavits. It was submitted that the attempt by the defendant is clearly an abuse of the process of court. I agree. [20] Further and as a separate ground there is no material placed before me in enclosure 69 as to why the ‘leave’ to use the said affidavit ought to be granted. For ‘leave’ to be granted there must be material placed before the court for its consideration. There was nothing in enclosure 69 or the affidavits filed therein for such ‘leave’ to be granted. The court does not grant ‘leave’ in vacuum. For these two reasons prayer (2) is refused. Decision on enclosures 3 and 14 [21] Enclosures 3 and 14 are connected in respect of the issue of fortification of the undertaking as to damages. Generally, the issue of fortification is taken when considering the “balance of convenience” when deciding an application for interim injunction. However, the defendant had filed enclosure 14 for the issue of fortification to be heard separately from enclosure 3. This is expressly reflected in paragraph 9 of the Defendant’s Written Submission (enclosure 77) which states: The defendant made an application for fortification of the plaintiffs’ undertaking as to damages in the region of RM20 million (Enclosure 14). The defendant indicated that he would oppose the interim injunction based on the outcome of the fortification application. If this Honourable Court grants the order for fortification and the plaintiffs do not comply, the defendant will move for the injunction to be refused. The relevant procedure and governing principles [22] Before proceeding to consider enclosures 3 and 14, it is important to keep in mind the basic principles concerning this area on the law on injunctions. O. 29 rr. 1(1) and 1(2) provides the procedure for an application for an interim injunction before trial pending the disposal of the main suit. The application is made by way of a notice of application supported by affidavit and is to be heard inter partes. However, in situations of urgency, parties relying on rule 1(2) will seek ‘leave’ of the court to have the said notice of application heard ex parte instead of inter partes. A case of 'urgency' is usually made out when an injunction is immediately required, amongst others, to maintain the integrity of the action, or prevent the dissipation of property, or the destruction of evidence. At this point, the only material before the judge is the notice of application, the affidavit in support together with a certificate showing the urgency. If urgency is not shown the court will proceed to fix a date for the application to be heard inter partes. If urgency is shown, the court will hear the application ex parte and if the application is allowed an ex parte interin injunction will be granted. However, by virtue of O. 29 r. 1(2B) this ex parte interim injunction will automatically lapse after 21 days from the date it is granted unless earlier revoked or set aside. It is trite that an ex parte interim injunction cannot be extended after it has lapsed. This was established in RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83 and Cheah Cheng Lan v Heng Yea Lee [2001] 1 MLJ 433). [23] At the time the ex parte interim injunction is granted the court will also fix a date for the application to be heard inter partes within 14 days from the date of the order. As usually happens, the inter partes hearing of the application is invariably not heard on the date that has been fixed because affidavits are not exhausted by the parties. While, the court has no power to extend an ex parte interim injunction that has lapsed, the court has power and usually grants, on the oral application of the plaintiff, what is known as an "ad interim injunction". The duration of an ad interim injunction is usually from the date the ex parte interim injunction lapsed until the disposal of the inter partes hearing of the application unless the court otherwise orders. The purpose of an ad interim injunction is to maintain the status quo until the inter partes hearing of the application. This position was established by the Court of Appeal in RIH Services (M) Sdn Bhd (supra) in the following words: In this country Low Hop Bing J has also granted an ad interim injunction pending the hearing of an application for an interim injunction which was to be heard inter partes in Jakob Renner v. Scott King [2000] 3 CLJ

… Indeed, as we understand it, it is quite a common practice amongst judges in this country. That way, the status quo is preserved after the expiry of the ex parte order until the inter partes hearing of the application. [24] Not the least important in RIH Services (M) Sdn Bhd (supra) is the statement concerning the three types of interim injunctions:

ex parte interim injunction; (ii) ad interim injunction; and (iii) the interim injunction obtained after an inter partes hearing. The statement shows that the tree injunctions are separate injunctions in the following words: It must be pointed out that the ad interim injunction is not an extension of the ex parte order which expires after 21 days. It is a fresh order made on the converted inter partes application now before the court. And, when the court finally hears the application, inter partes, the court will then decide whether or not to grant an injunction, inter partes. That will be a fresh order again. (emphasis mine) [25] It is trite that in determining whether an interim injunction should be granted or not an inquiry along the guidelines stated by the Court of Appeal in Keet Gerald Francis Noel John v. Mohd Noor bin Abdillah [1995] 1 CLJ 293 is to be undertaken by the judge. It is at the hearing of the inter partes application at the balance of convenience stage that the fortification issue will arise. To order or not to order fortification is discretionary and would in appropriate cases be ordered. The principle was succinctly summarized by Gopal Sri Ram JCA in Keet Gerald Francis Noel John (supra) as follows: If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the injunction especially if he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief. Of course, cases may arise where the injustice to the plaintiff is so manifest that the Judge would be entitled to dispense with the usual undertaking as to damages (see: Cheng Hang Guan v. Perumahan Farlim (Penang) Sdn. Bhd. [1988] 3 MLJ 90). Apart from such cases, the Judge is entitled to take into account the plaintiff's ability to meet his undertaking in damages should the suit fail, and, in appropriate cases, may require the plaintiff to secure his undertaking, for example, by providing a bank guarantee. (emphasis mine) [26] The relevant factors to be considered as to whether to make an order of fortification are similar to that when the court is moved to grant an order for security for costs. This was established in Fulcrum Capital Sdn. Bhd. v Dato’ Samsudin Abu Hassan; Rahaz Sdn. Bhd. & Anor (interveners) & Another Case [2001] 5 CLJ 73 as follows: It is entirely a matter for the court’s discretion whether it will require the plaintiff to put up security to back his undertaking in damages (usually in the form of a bank guarantee, or payment of a specified sum into a joint account in the names of the parties’ solicitors). It is more usual for the court to decide whether security should be provided at the inter partes hearing, because that is normally the time at which the court is in the best position to assess the merits and make an estimate of the nature and extent of the damage which the defendant may suffer if it later appears that the injunction should not have been granted, so that security can be ordered for a realistic amount. However, the court may require security to be provided even at the ex parte stage, if the circumstances so warrant, and may make the provision of such security a condition precedent to the granting of the injunction. Although no general rule can be stated as to when the court would order fortification of the cross-undertaking, it is likely that some security would be ordered in circumstances where the defendant could make a successful application for security for costs: the plaintiff’s financial position, his domicile or place of business and the strength of his case are among the relevant factors normally considered by the court. (emphasis mine) Decision on enclosure 3 [27] The facts show that there can no longer be an order for fortification in respect of the ex parte interim injunction upon the same being dissolved automatically after 21 days. Similarly, the ad interim injunction expired the same day the enclosure 69 was dismissed. Thus, fortification, at this stage can only be sought in respect of enclosure 3. Nevertheless, the defendant was contented only to seek an order for fortification through enclosure

No affidavit was filed to oppose enclosure 3. The defendant made his position clear with the following submission: that enclosure 3 should be dismissed because the plaintiffs are guilty of inequitable conduct. The inequitable conduct referred by the defendant is the same one the defendant had pursued without success against the plaintiffs in seeking to set aside the ad interim injunction. Since I had dismissed the application on the finding that the plaintiffs or their solicitors are not guilty of any inequitable conduct the submission is devoid of merit. Thus, there is nothing left in the way of granting enclosure 3. The only issue left for consideration is whether an order of fortification as sought through enclosure 14 ought to be allowed. [28] For completeness, and in view of the fact that the material averments made in the affidavit in support of enclosure 3 are deemed admitted by the defendant in absence of an affidavit in reply, I found that the plaintiffs had raised bona fide serious questions to be tried from the cause papers placed before me. The questions are whether the impugned will was made under undue influence and/or that the deceased did not have the necessary testamentary capacity to make the will. I also found that the harm would be greater in not granting the interim injunction than granting it in absence of an affidavit opposing enclosure 3 and that damages are not, on the facts and circumstances of the instant case, an adequate remedy. [29] For the above reasons enclosure 3 is allowed. Whether an order for fortification ought to be made [30] The defendant submitted that the undertaking given is worthless as all the plaintiffs are ordinarily resident out of jurisdiction and do not have sufficient assets within jurisdiction to meet such undertaking. It is alleged that the 1st plaintiff’s assets which are within jurisdiction are insufficient and are charged to banks. Thus, the undertaking was not "worth powder and shot" (Commodity Ocean Transport Corporation v. Basford Unicorn Industries Ltd (The "Mito ") [1987] 2 Lloyd's Rep 197 at p. 198). [31] It is claimed that if the interim injunction is granted the defendant is likely to suffer a loss that may amount to more than RM20 million. The defendant says that at this stage he does not have to prove the amount sought as security but only to show a sufficient level of risk of loss by showing that he has a good arguable case to that effect citing the case of Energy Ventura Partners Ltd v. Malabu Oil and Gas Ltd [2015] 1 WLR 2309. [32] The plaintiffs emphasised the fact that the defendant did not really oppose the making of the interim injunction and only focussed on fortification. It was submitted that the defendant intention was to stymie the claim in the main action by placing an oppressive financial burden on the plaintiffs. The plaintiffs had shown that the 1st plaintiff has assets within jurisdiction and provided sufficient particulars of the properties and their value. [33] I was especially mindful that any fortification ordered had to be thoroughly justified, in order to ensure that the plaintiffs were not unjustifiably deprived of their rights. Fortification is not granted as of right. In this regard, I am guided by the principles stated in CPIT Investments Ltd v Qilin World Capital Ltd. & Anor [2017] 3 SLR 1 which are in the following words: As set out in CHS, for fortification of an undertaking, there must be a real risk of loss arising from the grant of the injunction and the fortification is then required to ensure that there are sufficient assets within or even outside the jurisdiction that would be readily available to satisfy any liability under the undertaking. … three requirements which had been identified … as needing to be satisfied by a defendant seeking fortification as: [F]irst, that the court had made an intelligent estimate of the likely amount of loss which might result to a defendant by reason of the injunction; secondly, that the applicant for fortification has shown a sufficient level of risk of loss to require fortification; and, thirdly, that the contemplated loss would be caused by the grant of the injunction. Assets within jurisdiction [34] The ground by the defendant that there were no viable assets within jurisdiction was a hollow one. The defendant alleged that the properties were charged to banks and therefore worthless as assets. This is not true. The evidence shows that the 1st plaintiff has substantial properties with a net total value of RM10,649,057.23 within jurisdiction after deducting the redemption sums owing to the banks. It has been held that in a case where there are one or more co-plaintiffs having assets within jurisdiction security for costs is not granted (see Adarsh Pandit v. Viking Engineering Sdn Bhd [1998] 2 AMR 1009 and Lek Swee Hua & Anor v. American Express International Inc [1991] 2 MLJ 151). In my view the same principle applies with equal force when security for the under taking for damages is sought. On the totality of the evidence placed before me I hold that the undertaking is not worthless or illusory. Concealment of address [35] The second ground for fortification is that the plaintiffs deliberately concealed their residency status from this Court in their application for an ex parte interim injunction. On this fact it is claimed that the plaintiffs cannot be trusted to honour the said undertaking. I found this ground frivolous and devoid of merit. The granting of an ex parte interim injunction is not dependant on the residency of the plaintiff. In any event the plaintiffs upon being challenged promptly rectified the omission by letter to the defendant’s solicitors and vide an affidavit filed under the security for costs proceedings and vide the amended reply to defence. I hold that this is an irrelevant factor to consider when granting an order of fortification. Application of the principles for a fortification order [36] I am mindful that the inquiry is at an interlocutory stage and the burden on the defendant is to show a sufficient level of risk of loss which, in other words, is to show a good arguable case. An intelligent estimate of the likely amount of loss would depend on the facts and will be informed and realistic and as to causation, it is sufficient for the court to be satisfied that the making of the injunction was a cause without which the relevant loss would not have been suffered. However, the defendant has to pass the threshold stage which is expressed as follows in CHS CPO GMBH (In Bankruptcy) and Anor v. Vikas Goel And Others [2005] 3 SLR 202: [38] What does seem clear in this regard is this: where applicants are unable to demonstrate a sufficient risk of loss because even a preliminary application of the relevant principles of law would reveal - without more - that there is no legal basis for liability in the first instance, then that is an end to the matter, and fortification will not be ordered. [39] Where, in other words, the applicant cannot persuade even the court at the threshold, as it were, that there is a basis for legal liability even prior to investigation of the factual matrix in question, then it is clear that there is no "sufficient risk of loss". Where, however, the applicant can demonstrate that there is an at least reasonable basis for legal liability, the task of the court is then to apply the relevant legal principles to the relevant facts. [37] The issue at this stage is whether there was in fact a sufficient risk of loss with regard to the alleged losses which the defendant has canvassed? The alleged losses canvassed and my findings in respect of each of them are as follows. The Peel Avenue house [38] The Peel Avenue house is an asset of the estate bequeathed to the defendant under the impugned will. The defendant alleged loss of possible rental derived from the use of the house as a car park, use of part of the said house to facilitate the construction of Island Medical City and a possible joint venture with Island Hospital to build a hotel. I found that the defendant failed to clear the threshold of sufficient risk of loss as there is no basis for legal liability. The ex parte interim injunction was obtained on 19.06.2019 but the planning permission was granted to Island Medical City on 22.11.2017 and commencement of work order was granted on 28.11.2018 ie about 18 months earlier. The development of Island Medical City is on a different piece of land. Further, no legal relationship has been shown between the defendant and Island Medical City. There is no amendment to the planning permission involving the Peel Avenue house. The proposed hotel and car parks referred to are already part of Island Medical City ongoing development without the involvement of the Peel Avenue house. The defendant has obviously failed to clear the threshold. The Penang Hill lands [39] The Penang Hill lands, seven in total, are assets of the estate bequeathed to the defendant under the impugned will. The alleged proposed development of the Penang Hill lands is merely a proposal. It is not supported by any evidence. The seven pieces of lands are not perched on the hilltop as alleged by the defendant. They are contiguous lots sited between the hilltop, and the mid station steeped in a ravine approximately 1500 feet above sea-level with no proper access, except for a small pathway and traversed by five rivers. The said lands are located within the gazetted water catchment area which is an area of public/state interests where any form of development is absolutely prohibited. Each piece of the said lands is subject to the following condition: subject to the provision of the Conservation of Land Act 1961. The lands are therefore forbidden from development proposed or otherwise. [40] I found that the defendant failed to clear the threshold of sufficient risk of loss as there is no basis for legal liability. The defendant has not exhibited any concept plan, architectural drawings, survey plans and any feasibility study report upon which to calculate his bare assertion of loss. In any case, the Town Planning Department forbids development on land 250 feet above sea level. Even if such development is permitted, it would be subject to a multitude of conditions in various written laws such as the Water Supply (Catchment Area) Amendment Order 2009 made pursuant to the Penang Water Supply Enactment 1998. [41] The defendant, in respect of these lands, have also alleged that he has been deprived of potential business opportunities such as glamping business (i.e. essentially running a luxurious campsite) is also baseless. The defendant has not produced any evidence of the necessary planning or financial approvals for any such project at the time the ex parte interim injunction was made. The documents put forth by the Defendant relate to a completely different land and project that forms the Boulder Valley Glamping Area. It has nothing to do with any actual project allegedly undertaken by the defendant that had been commenced at the time when the ex parte interim injunction was made. The Boulder Valley Glamping Resort relied upon by the defendant as a purported example of missed opportunities to develop the Penang Hill Lands is completely different from the Penang Hill lands. That said glamping resort is sited in the Balik Pulau/Teluk Bahang ecotourism belt, is served by Jalan Teluk Bahang and is a 5 minutes drive from the town of Balik Pulau. There are several tourist attractions in close proximity. By contrast, the Penang Hill lands are located in a deep jungle which has none of the above facilities and amenities. It is neither on the hilltop of Penang Hill nor in the eco-tourism belt. The assertions of a joint venture by the defendant are an afterthought because even if a joint venture was possible, development of this nature is still subject to various legal and physical constraints which are insurmountable. It would be far too remote to assume that the Defendant would be able to overcome these obstacles by merely making a bare assertion in his affidavit. [42] I found that the defendant failed to clear the threshold of sufficient risk of loss as there is no basis for legal liability under this item of alleged loss. The Pendang Plantation lands [43] The Pendang Plantation lands are assets of the estate bequeathed to the defendant under the impugned will. The touted RM2 billion government solar project calling for bids as alleged by the defendant is not supported by any documentary evidence and is thus a bare averment devoid of merits. While the defendant has alleged various offers, there is no proof of acceptance hence no contracts have been formed. In any event, as there is no evidence of acceptance of such offers (let alone firm written offers), the defendant has not suffered any loss. All perceived losses are speculative in nature and/or a matter of the defendant’s conjecture. The defendant’s allegation of loss of rental amounting to RM13,579,297.60 over a span of 20 years is wholly unsubstantiated by professional opinion or valuation, and where no contracts exist. The said lands are under the category of agriculture i.e. rubber plantation land. This endorsement obviously negates that industrial plants for electricity generation will be permitted until and unless the relevant authorities remove such restriction in interests. There is no evidence of an offer to lease or any lease agreement drawn up. More crucially, the plaintiffs discovered that the Pendang Plantation lands is the subject of an existing lease granted by the deceased to another party in 2017 about 1.5 years before the Injunction was obtained. When challenged, the defendant merely asserted that the lease is terminable at any time but did not produce the agreement as evidence. The existence of a lease with a third party is evidence of no risk of loss. The defendant by suppressing this material evidence was attempting to mislead this Court. [44] I found that the defendant failed to clear the threshold of sufficient risk of loss on the ground that there is no basis for legal liability under this item of alleged loss. Issues regarding the quit rent and assessment of the lands [45] The defendant asserted that the lands bequeathed to him properties will be liable to forfeiture due to the non-payment of quit rent, assessment or other taxes. The plaintiffs have repeatedly asserted that they will pay the quit rent and assessment of the affected properties if the Defendant fails to do so. In fact, the plaintiffs have paid the quit rents for the properties in Penang in advance and deposited a large sum of monies with their solicitors with an undertaking to disburse the same for the payment of such dues for the remaining properties as and when needed. This allegation is baseless. I found that the defendant failed to clear the threshold of sufficient risk of loss on the ground that there is no basis for legal liability under this item. The shares in private companies [46] The defendant asserts that the interim injunction would prevent the shares being transferred to his name. This is not true. The interim injunction will not restrict and/or otherwise compromise the defendant’s right to have the shares in the said companies transmitted to the name of the defendant as a personal representative of the deceased or in any way affect the defendant’s rights as a shareholder pursuant to such transmission. This is provided by section 109 of the Companies Act 2016. The section speaks of transmission of shares and not the transfer of shares. It is well established that share transmission is a mechanism by which the title to shares is devolved other than by transfer. The concept is relevant in cases related to inheritance, succession, devolution by operation of law. The law as well as Articles of Association of a company may allow the administrator and/or executor to be registered as a shareholder. (see Ng Chong Wee v. Ng Chong Geng & Sons Sdn Bhd [2018] MLJU 934; Lee Eng Eow v. Low Ah Lian & Anor [1992] 1 MLJ 678 and Re LY Swee & Co Ltd; Khoo Leong Kee v. LY Swee & Co Ltd [1968] 2 MLJ 104) [47] What the interim injunction prohibits is selling, destroying, disposing, encumbering or otherwise dealing with the said shares. As long as there is no alteration to the number of shares held by the estate of the deceased through the defendant, there will not be any breach of the interim injunction that has been granted. The defendant will still be allowed to exercise his rights as a shareholder pursuant to section 109(6) of the Companies Act 2016. The defendant would only contravene the interim injunction if he transfers the shares to a third party. [48] The defendant asserts that he risks losing RM1,188,454.00 as a result of mismanagement of the 12 companies. I agree with counsel that this would have nothing to do with the interim injunction. The 12 companies have existed for decades and managed by their respective board of directors. The is not a shred of evidence of mismanagement. No evidence of abuse of directors, minority oppression, criminal charges against directors for criminal breach of trust, misappropriation and/or embezzlement of company funds nor has there been any petition of winding up being presented against them at any time. The alleged loss is bewildering and a figment of the defendant’s imagination. The allegation of loss further supports the plaintiffs’ submission of oppression behind the application for fortification. [49] The risk of loss of missed opportunity of not being appointed director of the companies and lose business opportunity is baseless. Directors are appointed to the board of directors by the shareholders at an Annual General Meeting based inter alia on their capability, experience, trust and integrity. Save for his directorship in SBH Associates Sdn Bhd where the defendant and the deceased are the only shareholders and alternate directorship in Maylon Sdn Bhd (a dormant company) and United Commercial Trading (Malaysia) Sdn Bhd, the defendant has little or no experience in managing a large company. I hold that the defendant has failed to clear the threshold of sufficient risk of loss on the ground that there is no basis for legal liability under this item. The property and financial market affecting the value of the shares [50] The defendant claims that the value of the shares held by the deceased’s estate in the various public listed companies are affected as a result of the volatile property and financial market. This is purely speculative given that the defendant has again failed to show any potential damage that would occur to the shares in the listed companies that would purportedly occur as a direct result of the interim injunction. The evidence shows that the market situation is generally depressed from 2020 and was further affected by the Covid-19 pandemic. The defendant further states that he would be prevented by the interim injunction taking a short-sell position and would as a result suffer losses. I find this again pure speculative. is also unsupported by any evidence. [51] I found that the defendant failed to clear the threshold of sufficient risk of loss on the ground that there is no basis for legal liability under this item. Decision on enclosure 14 [52] The sum of RM20,000,000.00 claimed as a fortification of the undertaking is not supported on the principles that justifies an order for fortification. In the circumstances, in particular, based on the foregoing reasons this is not an appropriate case to make an order of fortification. Enclosure 14 was accordingly dismissed. …………………sgd………………… Amarjeet Singh Serjit Singh Judge High Court Penang Dated 12th July 2022 Counsel for the Plaintiff: Khaw Yit Hao, Teh Han Ker [B C TEH & YEOH] Counsel for the Defendant: Wong Yee Chue, Lee Khe Wei [Y.C. WONG] Cases referred to:

RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 1 CLJ 457

RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83

Cheah Cheng Lan v Heng Yea Lee [2001] 1 MLJ 433

Keet Gerald Francis Noel John v. Mohd Noor bin Abdillah [1995] 1 CLJ 293

Fulcrum Capital Sdn. Bhd. v Dato’ Samsudin Abu Hassan

Rahaz Sdn. Bhd. & Anor (interveners) & Another Case [2001] 5

Commodity Ocean Transport Corporation v. Basford Unicorn Industries Ltd (The "Mito ") [1987] 2 Lloyd's Rep 197 at p.

Energy Ventura Partners Ltd v. Malabu Oil and Gas Ltd [2015]

CPIT Investments Ltd v Qilin World Capital Ltd. & Anor [2017]

Adarsh Pandit v. Viking Engineering Sdn Bhd [1998] 2 AMR 1009

Lek Swee Hua & Anor v. American Express International Inc [1991] 2 MLJ 151

CHS CPO GMBH (In Bankruptcy) and Anor v. Vikas Goel And

Ng Chong Wee v. Ng Chong Geng & Sons Sdn Bhd [2018]

Lee Eng Eow v. Low Ah Lian & Anor [1992] 1 MLJ 678

Re LY Swee & Co Ltd; Khoo Leong Kee v. LY Swee & Co Ltd [1968] 2 MLJ 104