This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. [49] Similarly, Order 92 rule 4 ROC 2012 needs no introduction to the litigation bar. It reads as follows- Inherent powers of the Court (O 92 r 4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [50] A plaintiff resisting a striking out application will invariably rely on the 1993 case of Bandar Builder Sdn Bhd & 2 Ors v United Malayan Corporation Bhd [1993] 4 CLJ 7, SC [“Bandar Builder”] at 11 e – h, where Mohamed Dzaiddin bin Hj Abdullah SCJ [delivering judgment of the court] said-The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [Emphasis added] [51] As to how a court can be “satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable”, the following principles distilled from decided cases are useful-i. Whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but that when the case argued on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success. [See Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 CLJ 257, CA [“Pengiran Othman Shah Pengiran Mohd Yusoff”], per Siti Norma Yaakob JCA] ii. Where the affidavit evidence discloses a dispute of facts, such facts must be analysed and if they are found to be inconsistent with undisputed contemporary documents or inherently improbable in themselves, the court is entitled to reject those facts and proceed upon the undisputed contemporaneous documentary evidence. A trial of the action will not add anything more. [See Pengiran Othman Shah Pengiran Mohd Yusoff, per Siti Norma Yaakob JCA and Tan Ah Tong v Perwira Affin Bank Bhd & Ors [2002] 5 MLJ 49; [2002]1 AMR 102; [2001] 7 CLJ 500, HC [“Tan Ah Tong”], Abdul Malik Ishak J]. iii. The court must submit the evidence to critical examination. If that leads to the conclusion that the action could not possibly succeed it should be struck out. [See Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, Privy Council, per Lord Diplock] [52] In 2019, the Federal court in Tony Pua Kiam Wee v Government of Malaysia and another appeal [2019] 12 MLJ 1, FC [“Tony Pua Kiam Wee”] said- [39] It may well be the case that a claim is pleaded in such a manner that the factual matrix is scandalous or so frivolous or vexatious that it can give rise to no other inference than that it is wholly indefensible or unsustainable. This would be plainly discernible on the face of a claim. Such pleas or averments would fall for striking out under one of the other limbs of O 18 r 19 and/or the inherent jurisdiction of the court. [Emphasis added] [53] In Tan Ah Tong, Abdul Malik Ishak J struck out a writ under Order 18 rule 19 of the previous Rules of the High Court 1980. His Lordship after a wide-ranging survey of the jurisprudence said-On striking out, the Court of Appeal speaking through Siti Norma Yaakob JCA (now FCJ) succinctly laid down the law in the case of Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v. Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 CLJ 257. At pp. 265 to 266 of the report, her Ladyship in refined words had this to say: The discretionary power to dismiss an action summarily under O. 18 r. and under the inherent jurisdiction of the court is a drastic power which should only be exercised in plain and obvious cases, as the effect of the exercise of such a power is to shut out the plaintiff altogether from pursuing his claim. (See Tractors (M) Bhd v. Tio Chee Hing [1975] 2 MLJ 1). Whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but that when the case argued on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success. (See Mckay & Anor v. Essex Area Health Authority & Anor [1982] 2 QB 1166; [1982] 2 All ER 771; [1982] 2 WLR 890). When a question of law becomes an issue, this in itself will not prevent the court from granting the application, for as long as the court is satisfied that the issue of law is unarguable and unsustainable, it may proceed to determine that question. (See Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400). Likewise, where the affidavit evidence discloses a dispute of facts, such facts must be analysed and if they are found to be inconsistent with undisputed contemporary documents or inherently improbable in themselves, the court is entitled to reject those facts and proceed upon the undisputed contemporaneous documentary evidence. Finally, at p. 273 of the report, her Ladyship rounded it up by saying: As for the issue of law raised against the fourth respondent, since that can be determined from the undisputed documentary evidence, a trial of the action will not add anything more to what has already been canvassed before the trial judge and before us. If anything at all, if this suit proceeds to trial it will be with the hope that something may turn up at the trial but in the light of the affidavit and documentary evidence, we found that the respondents have no case to answer. Again, on striking out, Lord Diplock had this to say in Tractors Malaysia Bhd v. Tio Chee Hing [1975] 2 MLJ 1: The power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with the utmost caution. Had the matter depended upon the contents of the Statement of Claim alone, their Lordships would have been loath to differ from the opinion of the Federal Court that, despite imperfections in drafting (which however might have been capable of cure by amendment) the Statement of Claim, at any rate as respects some of the claims to alternative relief, did raise questions of law that were sufficiently arguable to justify proceeding to trial. In refusing to submit the evidence to critical examination, however, the Federal Court erred in law. This makes it necessary for their Lordships to state briefly the facts disclosed by the evidence which, in their view, lead to the conclusion that the new action could not possibly succeed. and, clearly, there was a need in the present exercise to submit the evidence to critical examination. [Emphasises added] Plaintiffs’ Contentions [54] The plaintiffs contend the Share Sale Agreement and all the related agreements are sham agreements deliberately created by them with the defendants to mislead financial institutions. [55] The intent is to trick these financial institutions not to withdraw credit facilities already given to Dancom and to continue to give credit facilities to Dancom. [56] The plaintiffs say due to the then on-going criminal proceedings against Tengku Adnan, these financial institutions would withdraw credit facilities already given to Dancom and refused to continue to give credit facilities to Dancom. The plaintiffs say these will happen as long as Tadmansori remained a shareholder in Dancom as Tengku Adnan is a shareholder in Tadmansori. [57] The plaintiffs admit they did receive the RM 10 million purchase price for the Shares from Three Wells but alleged they were dividend payments from Three Wells. [See Enclosure 84 plaintiff’s written submission paragraph 26 at page 16] Defendants’ Contentions [58] The defendants contend the sale of the shares to Three Wells is a legitimate sale transaction supported by contemporaneous documents. [See Enclosure 132 defendants’ written submission paragraph 32 to 44 at pages 14 to 20]. [59] The defendants also contend the suit is tainted with illegality. [60] They urged the court to strike out the suit and not subject them to an unnecessary trial. Court’s Analysis [61] I remind myself while a striking out application should not be lightly granted based on Bandar Builder, I must scrutinise the plaintiffs’ case and the affidavit evidence and if “a claim is pleaded in such a manner that the factual matrix is scandalous or so frivolous or vexatious that it can give rise to no other inference than that it is wholly indefensible or unsustainable” [see Tony Pua Kiam], I should and must strike out the suit. [62] In my view, this is a suitable case to strike out the suit for these various reasons below. What are sham agreements? [63] The plaintiffs contend the Share Sale Agreement and all the related agreements are sham agreements deliberately created by them to mislead financial institutions. [64] In Toe Hong Choo v Piong Choong Fah [2025] 1 MLRH 255, HC, I had reviewed the law on what is a sham agreement. This is what I had said-The Law − What Is A Sham Agreement? [40] In AG Securities v. Vaughan And Others; Antoniades v. Villiers And Another [1990] 1 AC 417 [“AG Securities”] Bingham LJ at the Court of Appeal said at p 444: A written agreement is a sham where it incorporates clauses by which neither party intends to be bound and which is obviously a smokescreen to cover the real intentions of both contracting parties: Hadjiloucas v. Crean [1987] 3 All ER 1008, 1014, per Purchas LJ. The accepted definition of a sham is that given by Diplock LJ in Snook v. London and West Riding Investments Ltd [1967] 2 QB 786, 802: “As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a ‘sham,’ it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties’ legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co v. Maclure [1882] 21 Ch D 309, C.A. and Stoneleigh Finance Ltd v. Phillips [1965] 2 QB 537), that for acts or documents to be a ‘sham,’ with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.” Put more shortly, a sham exists where the parties say one thing intending another: Donald v. Baldwyn [1953] NZLR 313, 321, per FB Adams J. [Emphasis Added] [41] In Malaysian cases, the Court of Appeal in Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 6 MLRA 607 per Gunalan Muniandy JCA followed the earlier Court of Appeal judgment of Global Globe Property (Melawati) Sdn Bhd v. Jangka Prestasi Sdn Bhd [2020] 5 MLRA 140 [“Global Globe Property (Melawati)"] where Lee Swee Seng JCA had set out the test to determine a sham agreement. [Emphasis added] Court will not assist a party who takes advantage of its own wrongdoings and comes to court without clean hands [65] In my view, the plaintiffs’ admission that they deliberately created the Share Sale Agreement and all the related agreements to mislead financial institutions is fatal to their suit. [66] It is trite that the court will not condone or lend its hand to a party who takes advantage of its own wrongdoings and comes to court without clean hands. [67] In Tetap Tiara Sdn Bhd v Pengurusan Perbadanan Jaya One & 21 Ors [2024] 1 AMR 499, CA, the Court of Appeal had said- [47] It is our respectful view that it is the statutory duty of the first defendant to hold the AGM yearly and to also hold the EGM required by parcel owners, instead of acting against its duty. The court should not defeat the mandatory requirement provided by the law. It is trite that the court will not condone or lend its hand to a party who takes advantage of its own wrongdoings and comes to court without clean hands. [Emphasis added] [68] Raja Azlan Shah Acting CJ Malaya (as His Majesty then was) said in Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131, FC, at 133- It is a universal principle of law that the court would not allow a party to take advantage of his own wrong. [69] It is also trite law that the court will not assist a plaintiff or any party who is privy to an immoral or an illegal act. [70] In Tan Ah Tong, Abdul Malik Ishak J struck out a writ under Order 18 rule 19 of the previous Rules of the High Court 1980 on the ground that the court would not lend its aid to the plaintiff who had founded his cause of action upon an immoral or an illegal act. [71] This is what Justice Abdul Malik Ishak said-Illegality The plaintiff’s amended statement of claim in encl. 31 in clear terms set out the background facts of the whole case. … The main thrust and purport of the plaintiff’s amended statement of claim in encl. 31 was that the charges were null and void because of illegality and, consequently, the plaintiff wanted the first defendant to return all the title deeds to him. But the first defendant also held onto the notion that the plaintiff too was tainted with illegality and for that very reason it was submitted that this court ought not to assist the plaintiff in his claims and that the plaintiff’s claims ought to be struck out on the ground of illegality. .. I was asked not to extend a helping hand to the plaintiff who had founded his cause of action on an illegal act. In this direction, the speech of Lord Mansfield in Holman v. Johnson [1775-1802] All ER Reprint 98 must be referred to. There Lord Mansfield in refined language said at p. 98 of the report: No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted. and continuing at p. 99 of the report, his Lordship said: It is on that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally (at) fault, potior est conditio defendentis. … Finally, Gopal Sri Ram JCA in Mustafa bin Osman v. Lee Chua & Anor [1996] 2 MLJ 141 said: We accept as beyond argument that illegality need not be specifically pleaded, and that once the illegality is brought to the attention of the court before whom the action is being tried, the court, upon being satisfied that the transaction is indeed illegal, is obliged to act upon it. See, Natha Singh v Syed Abdul Rahman & Anor [1962] MLJ 265; Nasib Singh v. Ramasamy [1969] 1 MLJ 211… This was certainly a case where this court would not lend its aid to the plaintiff who had founded his cause of action upon an immoral or an illegal act. This was my judgment and I so hold accordingly. [Emphasis added] [72] The court can take cognizance of illegality even if not expressly pleaded by a defendant if on the pleadings and or facts the claim is ex facie illegal. [See Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay Abdullah [2015] 8 CLJ 212, FC]. [73] In the Amended Statement of Claim at paragraphs 22 to 28, the plaintiffs have pleaded facts that show the plaintiffs have ‘admitted’ entering into a sham agreement. The claim is ex facie illegal. [74] The maxim in pari delicto (“in equal fault”) can be displaced or moderated by three considerations commonly referred to as the “trio of considerations” first propounded in the English Supreme Court case of Patel and accepted by our courts. [75] However, the burden is on the plaintiffs to satisfy the court that the “trio of considerations” favour them. On the facts as presented by the plaintiffs, I am not satisfied this burden has been discharged. On the facts of this case, there is no necessity to go for a trial to consider these trio of considerations. [76] For the above reasons and on this ground alone, the suit should be struck out. For completeness I shall also go through the other grounds to support a striking out of the suit. Terms in Supplemental Agreement dated 07-12-2019 post - Share Sale Agreement show the plaintiffs’ allegation the sale is a sham is not true [77] By a Supplemental Agreement dated 07-12-2019, Tadmansori and Three Wells varied the deferred payment terms contained in the Share Sale Agreement to make Datuk Liu personally liable to pay the Purchase Price if Three Wells defaults. [78] The terms agreed were as follows: - i. In the event Three Wells is unable to pay the Purchase Price in accordance with the agreed deferred payment instalment schedule, Datuk Liu shall personally assume the outstanding Purchase Price as a debt, “Free Of Interest” and which shall be payable after Dancom settles the Balance Loan with interest which Dancom had taken from Tadmansori [See Clause 2.1.2]; ii. Tadmansori shall not treat any delay or failure by Three Wells to comply with the deferred payment instalment schedule as a fundamental breach; [See Clause 2.1.3] iii. Tadmansori agreed to further vary the deferred payment instalment schedule and grant Three Wells or Datuk Liu more indulgence to pay the Purchase Price, should the need arise due to the performance of Dancom, the Malaysian economy and global outlook; [See Clause 2.1.4] and iv. the Balance Loan was agreed to be settled with interest according to an instalment schedule commencing from October 2019 to September 2022. [See Enclosure 125 affidavit of the 2nd defendant at paragraph 8.4 at page 18 and Exhibit LTS-4 at page 59] [79] In my view, if the plaintiffs’ allegation that the Share Sale Agreement is a sham and purely intended to mislead Dancom’s financial institutions is indeed true, that had already been achieved when-i. The plaintiffs had signed the Share Sale Agreement to sell Tadmansori’s shares in Dancom to Three Wells; ii. Tadmansori had executed a Form of Transfer dated 28-06-2019 to transfer the Shares to Three Wells; and iii. The Shares were transferred to Three Wells on 26-07-2019. [80] There is no need for the plaintiffs to further agree on the Supplemental Agreement dated 07-12-2019- i. To vary the deferred payment terms contained in the Share Sale Agreement; or ii. To make Datuk Liu personally liable to pay the Purchase Price if Three Wells defaults; or iii. To vary the interest rates payable by Datuk Liu to “Free Of Interest”; or iv. To vary the repayment terms for the Balance Loan. [81] The Supplemental Agreement dated 07-12-2019 and the terms varied therein are consistent with a genuine sale and shows that the sale of the Shares is a legitimate transaction. It shows the plaintiffs’ allegation that the Share Sale Agreement is a sham and purely intended to mislead Dancom’s financial institutions is NOT true. Contemporaneous letters show the sale of the Shares is a legitimate transaction. [82] In addition, contemporaneous letters show the plaintiffs further agreed to vary Clause 2.2.2 of the Share Sale Agreement dated 28-06-2019 [as amended by Clause 3.1.3 of the Supplemental Agreement dated 07-12-2019]. [83] These six letters show Tadmansori acting through Tengku Rethwan signing on letters from Dancom dated 23-06-2020, 21-09-2020, 31-12- 2020, 30-06-2021, 17-09-2021 and 15-12-2021 agreeing to changes to the payment terms for the Balance Loan. [For the letters see Enclosure 14 at pages 197, 200, 203, 207, 210 and 214] [84] By these letters Tadmansori acting through Tengku Rethwan signed at the bottom to agree to Dancom’s requests to further revise the repayment of the said Balance Loan by agreeing to: - i. Extend the repayment period to August 2023; and ii. Reduce interest from 5% per annum to 4% per annum. [85] Another contemporaneous letter is dated 15-12-2021 from Three Wells to Tadmansori whereby Three Wells, inter-alia, told Tadmansori that “since Dancom is proposing to pay out RM 2.5 M as dividend to Three Wells, Three Wells shall utilize a sum of RM 1.5 M to pay to Tadmansori towards partial payment of the Sale Shares”. Tadmansori acting through Tengku Rethwan signed at the bottom of the letter to signify agreement to Dancom’s requests. [See Enclosure 14 page 279]. [86] All the above contemporaneous letters are consistent with a genuine sale and shows that the sale of the shares is a legitimate transaction. It shows the plaintiffs’ allegation that the Share Sale Agreement is a sham and purely intended to mislead Dancom’s financial institutions is “wholly indefensible or unsustainable” to use the words of the Federal Court in Tony Pua Kiam Wee. Tengku Adnan was acquitted on 16-07-2021 [87] Tengku Adnan was acquitted on 16-07-2021. This date is significant as the whole premise of the plaintiffs’ suit is based on the allegation that the sale of the Shares was a sham to mislead financial institutions not to withdraw credit facilities already given to Dancom and refused to continue to give credit facilities to Dancom due to the then on-going criminal proceedings against Tengku Adnan. [88] The plaintiffs say these will happen as long as Tadmansori remained a shareholder in Dancom as Tengku Adnan is a shareholder in Tadmansori. [89] So, when Tengku Adnan was acquitted on 16-07-2021, there was no longer a need to proceed with the charade if the plaintiffs’ story is true. The plaintiffs would have immediately taken steps to reclaim the shares. There was no necessity to create post 16-07-2021 seven fictitious instalment payments that were signed and acknowledged as received by Tengku Rethwan on behalf of Tadmansori on covering letters of Three Wells. [90] The fact that between 29-12-2021 to 08-06-2023, the Purchase Price was settled in full by Three Wells by way of 7 instalment payments made by cheques on 29-12-2021, 08-04-2022,17-06-2022, 07-10- 2022, 10-02-2023, 07-04-2023 and 08-06-2023 can only mean the sale was genuine. [See Enclosure 125 affidavit of the 2nd defendant at paragraph 8.6 at page 19 and Exhibit LTS-6 at page 68 - 81] [91] Further, the fact that the plaintiffs sent their letter of demand alleging sham only on 20-02-2024, which is about 2 years 6 months after Tengku Adnan was acquitted of all criminal charges by the Court of Appeal on 16-07-2021 again show the plaintiffs’ sham contention is not true. Not a single document produced by the plaintiffs to support their allegation of sham [92] This is a case where the entire set of documents pre and post the acquittal of Tengku Adnan support the defendants’ story. Tengku Adnan is a seasoned businessman. If the sale is indeed a sham to mislead third parties’ financial institutions, there would have been an internal document between Tengku Adnan, Three Wells and Datuk Liu to document the truth concerning the sale of the shares. [93] The non-production of a single document by the plaintiffs to support their claim can only mean that their suit is obviously based on mere conjecture and bare or fanciful allegations. No court should ever be abused or allow its machinery and system to be the stage of an obviously doomed case. Suit against Dancom [94] In addition to the above, the suit against Dancom is misconceived and should be struck out as Dancom is not a party to the Share sale Agreement. Suit against Datin Tan and Kingston Liu [95] The suit against Datin Tan and Kingston Liu is similarly misconceived and should be struck out as they not parties to the Share Sale Agreement. [96] Datin Tan and Kingston Liu are only directors and shareholders of Three Wells. As directors per se [a Latin phrase literally meaning “by itself”], unless the plaintiffs can lift the corporate veil of Three Wells and/or prove fraud against them, they are not liable for the acts of a corporate entity. This is the basic foundation of corporate law. [97] The concept of separate legal entity as between a company and its members or directors can be traced back to the landmark English House of Lords decision in Salomon v A. Salomon & Co Ltd [1897] AC