TAN SRI DATO PHENG YIN HUAH v LOK PENG CHUAN (Disaman dalam kapasiti sebagai Penerima dan Pengurus Mentakab Star Mall Sdn Bhd (Dalam Penerimaan)) (CB-22NCC-8-09/2025)

TAN SRI DATO’ PHENG YIN HUAH [NO. K/P.: 480702-06-5091]

DATO’ PHENG CHIN KIAT [NO. K/P.: 700906-06-5167] PLAINTIF-PLAINTIF

LOK PENG CHUAN [NO. K/P: 700310-10-5535] [Disaman dalam kapasiti sebagai Penerima dan Pengurus Mentakab Star Mall Sdn Bhd (Dalam Penerimaan)]

JASMIN BEGUM BINTI JAFFAR KHAN [NO. K/P: 690325-09-5046] [Disaman dalam kapasiti sebagai Penerima S/N zp0rbPgHeUSDEt1qkmSsIw dan Pengurus Mentakab Star Mall Sdn Bhd (Dalam Penerimaan)]

UNITED OVERSEAS BANK (MALAYSIA) BHD [NO. SYARIKAT.: 199301017069 (271809-K)]

MENTAKAB MALL SDN BHD [NO. SYARIKAT.: 201101033260 (961395-W)] (Dahulunya dikenali sebagai TYS Land & Development Sdn Bhd) DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT

On 29.9.2025, the Plaintiffs filed a Writ and Statement of Claim in Enclosures 1 and 2, together with Enclosure 3 on a Certificate of Urgency in Enclosure 4.

The Plaintiffs in Enclosure 3 sought an interim injunctive relief against the Defendants, inter alia, as follows: “(1) An interim injunction to restrain the 1st Defendant and the 2nd Defendant in their capacity as Receivers and Managers of S/N zp0rbPgHeUSDEt1qkmSsIw Mentakab Star Mall Sdn Bhd (In Receivership), whether acting on its own, and/or through its officers, servants, employees, workmen, agents, nominees and/or parties related to them, or otherwise in any way be restrained with immediate effect by an injunction, until full disposal of this action or until further order by this Honourable Court from: -

performing the full and final execution and/or completion of the Sale and Purchase Agreement dated 17.1.2025 and/or any further transactions entered in relation to the freehold land held under Geran Mukim 8178, Lot 35051 (formerly HSM 8178, PT 18845), Mukim Mentakab, Daerah Temerloh, Tempat Ulu Gua, Negeri Pahang Darul Makmur measuring approximately 15,600 square metres in area, together with a building erected thereon and bearing postal address: Mentakab Star Mall, No. 1, Jalan Star City 1, 28400 Mentakab, Pahang Darul Makmur (“the Mall”) between the 1st Defendant and the 2nd Defendants acting as Receivers and Managers of Mentakab Star Mall Sdn Bhd (In Receivership) with the 4th Defendant; and/or

causing the Mall to be registered in the name of the 4th

An interim injunction to restrain the 1st Defendant and the 2nd Defendant acting as Receivers and Managers of Mentakab Star Mall Sdn Bhd (In Receivership) and/or the 4th Defendant S/N zp0rbPgHeUSDEt1qkmSsIw whether acting on its own, and/or through its directors, officers, servants, employees, workmen, agents, nominees and/or parties related to them from dealing with, taking possession, controlling, removing, selling, transferring, diminishing, disposing, abolishing and/or destroying in any way whatsoever the Mall until full disposal of this action or until further order by this Honourable Court;”

On 1.10.2025, the Plaintiffs appeared before this Court for an ex-parte injunction in Enclosure 3 which was granted pending disposal of the interim injunction, and subsequently this Court fixed the inter-partes hearing on 14.10.2025.

However, the 1st and 2nd Defendants subsequently filed an application to set aside the said ex-parte Order dated 1.10.2025 (“Enclosure 11”). Likewise, the 4th Defendant on 13.10.2025 filed a separate application seeking to set aside Enclosure 11.

On 14.10.2025, after hearing submissions from the parties, this Court proceeded to grant an ad-interim injunction following the ex-Parte Order dated 1.10.2025, save and except the addition of the words “save and except for the purposes of managing and operating the Mall” at the end of paragraph 2 of the ex-parte Order dated 1.10.2025. S/N zp0rbPgHeUSDEt1qkmSsIw

Subsequent to the granting of the Ad-Interim Order dated 14.10.2025, this Court proceeded to fix the inter-partes Hearing of Enclosure 3 as well as the Hearing of Enclosure 14 and Enclosure 21 on 31.10.2025. Having carefully perused the written submissions by all parties, followed by the oral submissions on 31.10.2025, this Court fixed Enclosures 3, 14 and 21 for decision on 1.12.2025.

On 1.12.2025, this Court dismissed Enclosure 3 and allowed Enclosures 14 and 21 with costs. The Plaintiffs are now appealing in its entirety the decision of this Court in Enclosures 3, 14 and 21. The following are the grounds of judgement of this Court.

The Plaintiffs are directors and shareholders of a company known as Mentakab Star Mall Sdn Bhd (“MSMSB”).

MSMSB is the registered owner of a freehold land held under Geran Mukim 8178, Lot 35051 (formerly HSM 8178, PT 18845), Mukim Mentakab, Daerah Temerloh, Tempat Ulu Gua, Negeri Pahang Darul Makmur measuring approximately 15,600 square metres in area, together with a building erected thereon and bearing postal address: Mentakab Star Mall, No. 1, Jalan Star City 1, 28400 Mentakab, Pahang Darul Makmur (“the Mall”). S/N zp0rbPgHeUSDEt1qkmSsIw

MSMSB went into receivership sometime on 25.6.2018 and one Chan Siew Mei (NRIC No.: 660710-08-5306) was appointed as the Receiver and Manager of MSMSB (In Receivership) (“MSMSB (In Receivership)”). On 31.12.2024, Chan Siew Mei resigned as the Receiver and Manager of MSMSB (In Receivership).

1st and 2nd Defendants are approved liquidators attached with KPMG Corporate Restructuring PLT (“KPMG”). The 1st and 2nd Defendants were appointed by the 3rd Defendant on 31.12.2024 to act as Receivers and Managers of MSMSB (In Receivership).

The 3rd Defendant is UOB Bank that granted the Plaintiffs a financing facility of RM86 million by way of Debenture.

The 4th Defendant is a private limited company. Sometime on 17.1.2025, the 4th Defendant had entered into a Sale and Purchase Agreement with MSMSB (In Receivership) under the care and control of the 1st and 2nd Defendants as Receivers and Managers of MSMSB (In Receivership) to purchase the Mall.

The Plaintiffs are directors and shareholders of MSMSB, the registered owner of the freehold land and building known as S/N zp0rbPgHeUSDEt1qkmSsIw Mentakab Star Mall located in Mentakab, in district Temerloh of Pahang.

On 15.11.2011, United Overseas Bank (Malaysia) Berhad (“UOB”) granted MSMSB a financing facility of RM86 million. In support of the facility, the Plaintiffs executed personal guarantees on 12.9.2012, and MSMSB later executed a Debenture dated 5.2.2013, securing the Mall in favour of UOB. UOB also registered five charges over the Mall on 19.4.2013.

Following MSMSB’s default on the financing obligations, UOB appointed a receiver and manager on 25.6.2018 pursuant to the Debenture and the registered charges. When the initial receiver resigned on 31.12.2024, UOB appointed the 1st and 2nd Defendants, who are both approved liquidators from KPMG Corporate Restructuring PLT, as the new Receivers and Managers of MSMSB.

In early September 2025, the Plaintiffs discovered through the Receivers' solicitors’ letter dated 2.9.2025 that the 1st and 2nd Defendants had earlier entered into a Sale and Purchase Agreement dated 17.1.2025 with the 4th Defendant, Mentakab Mall Sdn Bhd, for the sale of the Mall at a purchase price of RM33 million.

The Plaintiffs contend that this purchase price is grossly undervalued when compared to a 2015 valuation commissioned by S/N zp0rbPgHeUSDEt1qkmSsIw MSMSB, which assessed the Mall’s market value at RM220 million. Based on this valuation and the outstanding loan sum of RM90.6 million as of November 2020, the Plaintiffs assert that completing the sale at RM33 million would leave a substantial shortfall which is estimated at RM68 million, which the Plaintiffs, as guarantors, would ultimately be liable to pay.

Upon learning of the intended sale, the Plaintiffs promptly commenced this action by filing a Writ of Summons, Statement of Claim, and an application for an interim injunction to restrain the Receivers and Managers from completing or giving effect to the Sale and Purchase Agreement pending the disposal of the suit.

The Plaintiffs argue that the Receivers sold the Mentakab Star Mall at a gross undervalue. They rely on a valuation done by Azmi & Co dated 6.1.2015 of RM220 million and a Valuation Certificate dated 14.10.2025 showing RM150 million, contrasting this with the RM33 million sale price. They say this wide disparity demonstrates a breach of the Receivers’ duty to act in good faith and to obtain the best price reasonably obtainable.

They maintain that they have locus standi because they are directors and shareholders of MSMSB and personal guarantors of S/N zp0rbPgHeUSDEt1qkmSsIw the loan. Any undervalue sale increases their personal exposure, and they are therefore entitled to challenge the Receivers’ conduct.

The Plaintiffs say there are serious issues to be tried, including whether the Receivers had acted recklessly, relied on inaccurate valuations, failed to act prudently by disregarding the interest of the Plaintiffs, and sold it at an unreasonably low price.

They contend that damages are not an adequate remedy because once the Mall is transferred, the subject matter is lost, the company’s only significant asset disappears, and they may have no viable recourse to recover damages from the Receivers or the purchaser.

The Plaintiffs further argue that the balance of convenience lies in the granting of the interim injunction. They say the prejudice to them is potentially bearing a massive shortfall as guarantors, is far greater than any inconvenience to the Defendants, who can be compensated or restored if the injunction is ultimately lifted.

They assert that they can provide a proper undertaking as to damages, pointing to two shoplots worth approximately RM2.4 million as security. S/N zp0rbPgHeUSDEt1qkmSsIw

Finally, they deny any material non-disclosure at the ex-parte stage, saying they did not intentionally withhold facts and that the Court now has all relevant information for a fair determination of the injunction. E. The 1st and 2nd Defendants’ Contention

The 1st and 2nd Defendants (the Receivers) argue that they acted fully within their contractual and statutory powers when selling the Mentakab Star Mall. They emphasise that Clause 11.4.4 of the Debenture expressly grants them absolute discretion to deal with and dispose of the charged asset, and that the sale to the 4th Defendant was conducted in accordance with that authority.

They state that the Mall had undergone five separate attempts at sale or tender since 2019, all of which failed, demonstrating that the Mall could not achieve anywhere close to the Plaintiffs’ alleged RM220 million valuation. The fact remains that, notwithstanding the Plaintiffs’ asserted valuation of RM220 million and the existence of a valuation certificate pegging the Mall at RM150 million, there was no buyer willing to pay the price claimed by the Plaintiffs.

The Receivers maintain that the sale price of RM33 million was not an undervalue but was consistent with the 2022 professional valuation done by C H William Talhar & Wong Sdn. Bhd. and that S/N zp0rbPgHeUSDEt1qkmSsIw the Plaintiffs have produced no credible expert valuation to contradict this. They submit that the Plaintiffs’ reliance on an old 2015 valuation or an unsupported 2025 certificate is misplaced and unreliable. They also note that the Plaintiffs’ assertions ignore the Mall’s deteriorated condition, reduced occupancy, and the fact that no higher offers were ever received despite multiple sale attempts.

The Receivers further argue that the Plaintiffs have no locus standi as Malaysian law is clear that receivers owe no duty to guarantors, particularly when the guarantors are also principal debtors who have not paid a single cent of the outstanding sum. As guarantors/shareholders, the Plaintiffs have no legal basis to interfere with the secured creditor’s realisation of the security.

They also submit that damages are plainly adequate, as the Plaintiffs’ claim is purely a monetary one. The Plaintiffs themselves acknowledge in their Statement of Claim that their alleged loss is the difference between the sale price and market value, meaning any shortfall, if proven, can be compensated in damages.

The Receivers argue that the balance of convenience overwhelmingly favours refusing the injunction. The SPA has been fully concluded, the 4th Defendant has paid substantial sums and taken possession, and granting an injunction would disrupt a completed commercial transaction and expose the 4th Defendant to significant financial S/N zp0rbPgHeUSDEt1qkmSsIw prejudice. By contrast, the Plaintiffs suffer no prejudice beyond a quantifiable monetary claim.

They also argue that the Plaintiffs have already lodged a private caveat, which independently restrains registration of the transfer. The injunction therefore serves no purpose and is oppressive and duplicative.

Lastly, the Receivers submit that the Plaintiffs lack clean hands. They failed to disclose the legal effect of the caveat and omitted material facts during the ex-parte application. They also filed for injunction after knowing the SPA was already completed, which they say is a misuse of the Court’s equitable jurisdiction. F. The 4th Defendant’s Contention

The 4th Defendant submits that the Plaintiffs’ injunction ought to be dismissed as the Plaintiffs lack locus standi and have no proprietary interest in the Mall, which is owned by MSMSB in receivership. The Plaintiffs have not pleaded any cause of action against the 4th Defendant, yet seek to restrain a purchaser who has already paid the full purchase price under a valid and enforceable Sale & Purchase Agreement. Having fully paid the RM33 million consideration and taken vacant possession, the 4th Defendant is S/N zp0rbPgHeUSDEt1qkmSsIw now the beneficial owner of the Mall and therefore should not be injuncted from exercising rights equivalent to a legal owner.

The 4th Defendant highlights that the injunction creates a real risk of irreparable harm, as the pending restraint has triggered concerns from its financier and may lead to the recall of the loan, potential termination of the financing facility, and breach of contractual obligations under the SPA, thereby exposing the 4th Defendant to cascading losses, litigation, and claims by tenants relying on the Mall’s operations. These are risks which cannot be adequately compensated by damages.

The 4th Defendant further argues that the balance of convenience overwhelmingly favours refusing the injunction because the transaction is substantially complete and any restraint would disrupt a concluded commercial sale, undermine financing arrangements, and unfairly prejudice an innocent purchaser. By contrast, the Plaintiffs’ complaint is purely monetary as the alleged undervalue, which they themselves acknowledge by pleading for general damages (i.e., the difference between market value and purchase price). Authorities confirm that commercial property carries no special or sentimental value, and damages are an adequate remedy where the dispute is about pricing rather than rights over land. S/N zp0rbPgHeUSDEt1qkmSsIw

The Plaintiffs have also failed to give a meaningful undertaking as to damages due to their insolvency and massive outstanding liabilities, making the injunction oppressive and financially risky to maintain.

Finally, the 4th Defendant submits that the Plaintiffs have not approached the Court with clean hands, having failed to disclose material facts, including the existence of prior litigation (Suit No. CB- 22NCC-1-03/2022) and the striking-out of similar allegations against the Receiver. The Plaintiffs also concealed the fact that they had lodged a private caveat while simultaneously applying for ex-parte relief, amounting to material non-disclosure sufficient on its own to justify setting aside the injunction.

Before we delve into the merits of the said applications before this Court, it is imperative that we first lay out the applicable legal principles.

In an application for an ex-parte interim injunction application, it is trite that the application must be in compliance with Order 29 Rule 1(2A) Rules Of Court 2012, which reads as follows:

The affidavit in support of an application made ex-parte must contain a clear and concise statement of— S/N zp0rbPgHeUSDEt1qkmSsIw

the facts giving rise to the claim;

the facts giving rise to the application for interim injunction;

the facts relied on to justify the application ex parte, including details of any notice given to the other party or, if notice has not been given, the reason for not giving notice;

any answer by the other party (or which he is likely to assert) to the claim or application;

any facts which may lead the Court not to grant the application ex parte or at all;

any similar application made to another Judge, and the order made on that application; and

the precise relief sought.

Insofar as the legal threshold for granting of an interim injunction is concerned, the governing test is as laid down by the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] AC 396. The court must first be satisfied that there is a serious question to be tried, and if so, must then consider whether damages would be an adequate remedy and, if not, where the balance of convenience lies. As stated by Lord Diplock at page 407: “The court no longer has to decide whether the plaintiff has made out a prima facie case… it is sufficient that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.” S/N zp0rbPgHeUSDEt1qkmSsIw

Lord Diplock further emphasised that where damages are an adequate remedy, injunctive relief should ordinarily be refused, at page 408: “If damages in the measure recoverable at common law would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted.”

These principles were expressly adopted by the Malaysian Court of Appeal in the case of Keet Gerald Francis Noel John v Mohd Noor Abdullah [1995] 1 MLJ 193 wherein His Lordship Gopal Sri Ram JCA (as he then was) pointed out the following matters to be taken into account when deciding upon interlocutory injunctions at page 206 as follows: “To summarize, a judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines:

he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must, when considering this question, bear in mind that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision the issues raised on the joinder and decides whether these are serious enough to merit a S/N zp0rbPgHeUSDEt1qkmSsIw trial. If he finds, upon a consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief is refused. On the other hand if he does find that there are serious questions to be tried, he should move on to the next step of his inquiry;

having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal. He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. 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 & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1988] 3 MLJ 90). Apart from S/N zp0rbPgHeUSDEt1qkmSsIw 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; and

the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo, an expression explained by Lord Diplock in Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130; [1983] 2 All ER 770; [1983] 3 WLR 143 and applied in Cheng Hang Guan. It is a judicial discretion capable of correction on appeal. Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff's equity, such as an award of monetary compensation in the event that he succeeds in establishing his claim at the trial. Any question going to the public interest may, and in appropriate cases should, be taken into account. A judge should briefly set out in his judgement the several factors that weighed in his mind when arriving at his conclusion.” S/N zp0rbPgHeUSDEt1qkmSsIw 19 45. The Court of Appeal further reaffirmed notably that the court must apply the American Cyanamid guidelines sequentially and must not undertake a premature evaluation of the merits as at the interlocutory stage, the court should not attempt to resolve conflicts of evidence or determine difficult or contentious questions of law.

The Federal Court in Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1, upheld the test laid down in Keet Gerald Francis when it held as follows: “[44] … We must highlight in this regard that the general test for interlocutory injunctions as laid down in Keet Gerald Francis is whether there are issues raised by the parties in the suit that are serious enough to merit a trial. In doing so, the court has to ask itself whether the totality of the facts presented before it discloses a bona fide issue to be tried.”

Based on the above, in assessing whether an interim injunction is to be granted, this Court must sequentially consider:

Whether there is any bona fide serious issue to be tried;

Where the balance of convenience lies;

Whether damages are an adequate remedy;

Whether the Plaintiffs’ have given a meaningful undertaking as to damages; and

Where the Plaintiff fails on any one limb, the injunction must be refused. S/N zp0rbPgHeUSDEt1qkmSsIw H.

Having carefully considered the applications in Enclosures 3, 14 and 21 and all affidavits filed therein, oral and written submissions filed by parties and the authorities cited therein, and guided by the principles established in the case of Keet Gerald Francis, this Court makes the following findings in respect of the said applications. Whether there are Bona Fide Serious Issues to be Tried

The crux of the Plaintiff’s serious issue to be tried can be deduced from the reliefs being sought in their Statement of Claim in Enclosure 2, which reads as follows: “(a) A declaration that the Sale and Purchase Agreement dated 17.1.2025 entered in relation to the freehold land held under Geran Mukim 8178, Lot 35051 (formerly HSM 8178, PT 18845), Mukim Mentakab, Daerah Temerloh, Tempat Ulu Gua, Negeri Pahanag Darul Makmur measuring approximately 15,600 square metres in area, together with a building erected thereon and bearing postal address: Mentakab Star Mall, No. 1, Jalan Star City 1, 28400 Mentakab, Pahang Darul Makmur (“the Mall”) between the 1st Defendant and the 2nd Defendant acting as Receivers and Managers of S/N zp0rbPgHeUSDEt1qkmSsIw Mentakab Star Mall Sdn Bhd (In Receivership) with the 4th Defendant to be declared null and void;

A declaration that the 1st Defendant and the 2nd Defendant to restore and/or to return all monies received from the 4th Defendant for the disposal of the

Further, the Plaintiffs vide Enclosure 5 have listed down the alleged serious issues to be tried as follows:

Whether the Purchase Price as stated in the Sale and Purchase Agreement dated 17.1.2025 is grossly undervalued as compared to the market value of the Mall;

Whether the 1st Defendant and/or the 2nd Defendant, as Receivers and Managers of MSMSB (In Receivership) has a duty of good faith and reasonable care in dealing with the Mall as the disposal of the Mall would directly affect the rights and interests of MSMSB (In Receivership) and/or the Plaintiffs;

whether the 1st Defendant and/or the 2nd Defendant and/or its officers, servants, employees, workmen, agents, nominees and/or any parties related to them has a duty to make sure and/or take reasonable steps to ensure that the valuation procured by them for the purpose of disposing the Mall is based on a valid and/or sound valuation method and/or valuation report particularly in view of the fact that the Plaintiffs as personal guarantors to the Financing Facility bear the S/N zp0rbPgHeUSDEt1qkmSsIw burden to pay the difference of the Purchase Price and the Outstanding Sum to the 3rd Defendant;

whether the 1st Defendant and/or 2nd Defendant in exercising a power of sale in relation to the Mall had not acted in good faith and/or had wilfully breached their duties and/or had not acted prudently and/or had acted recklessly by disregarding the interest of the Plaintiffs and/or had acted recklessly to prejudice the Plaintiffs;

whether the 1st Defendant and/or the 2nd Defendant has acted with intent to injure MSMSB (In Receivership) and/or the Plaintiffs and/or cause loss to the Plaintiffs; and

whether the 1st Defendant and/or the 2nd Defendant has a duty to ensure that the Mall be disposed of at the highest value possible taking into account the market value of the Mall.

In reference to Clause 11.4.4 of the Debenture, notwithstanding that although mentioned by the 1st and 2nd Defendants in their written submissions, this issue was not specifically addressed by the parties, and this Court observes, upon its own perusal of the cause papers that Clause 11.4.4 expressly confers on the Receivers the full discretion to deal with and dispose of the charged asset. The sale of the Mall was carried out within the scope of this contractual authority and in the proper exercise of the Receivers’ statutory and fiduciary duties. An injunction cannot be used to restrain or undermine the lawful exercise of powers clearly granted under the S/N zp0rbPgHeUSDEt1qkmSsIw security instrument which was agreed to by the Plaintiffs when they entered into the Debenture. Clause 11.4.4 is reproduced below for ease of reference:

A thorough perusal of the evidence adduced by parties show that the Mall underwent five separate tender exercises between 2019 and 2022, all of which failed to produce a single successful bidder. Even the Plaintiffs themselves could not procure a buyer for the Mall at the alleged valuation price range of between RM150 million and RM220 million. The Receivers have shown that the 4th Defendant ultimately offered the highest price of RM33 million, which aligns with the professional valuation of the Mall as at 2022. This independently confirms that the Mall could not have been sold at the Plaintiffs’ alleged valuation of RM220 million. S/N zp0rbPgHeUSDEt1qkmSsIw

What this shows is that the Receivers in exercising their duties under the Debenture undertook a thorough exercise in attempting to obtain the highest bidder for the Mall, in exercise of their absolute discretion as stipulated in Clause 11.4.4.

On this issue, this court is guided by the High Court in the case of Score Option Sdn Bhd & Anor v. Duar Tuan Kiat & Ors [2012] 4 CLJ 384 which held as follows: "…Insofar as it relates to the assets that were covered under the debenture, it is the receivers and managers who would have the ultimate authority…”

On the present facts, the Plaintiffs were the guarantors and the directors of MSMSB. Now, the Plaintiffs are attempting to question the manner in which the Receivers exercised their authority in dealing and/or disposing of the charged asset ie. the Mall.

The Plaintiffs seek to restrain the sale and realisation of the Mall, which is the very function entrusted to the Receivers under the Debenture. The Plaintiffs did not challenge the validity of the Receivers’ appointment nor the extent of the powers conferred upon them by virtue of the debenture. As such, I am of the view that this application therefore amounts to an impermissible interference with the lawful exercise of the Receivers’ authority and does not disclose any bona fide serious issue to be tried. S/N zp0rbPgHeUSDEt1qkmSsIw

However, I must emphasise that I am not making any determination on the substantive merits of the suit. At this stage, the Court is only required to consider whether there are bona fide serious issues to be tried. Whether Damages are an Adequate Remedy

It must be also noted that the Plaintiffs vide their Statement of Claim at paragraph 60(c) in Enclosure 2, in the alternative pleaded for the following relief: “(c) Alternatively, for the 1st Defendant and/or the 2nd Defendant shall jointly and/or severally compensate the Plaintiffs and/or Mentakab Star Mall Sdn Bhd (In Receivership) by way of general damages the difference between the actual market value of the Mall and the purchase price paid by the 4th Defendant;”

Therefore, even assuming that there are bona fide serious issues to be tried as alleged by the Plaintiffs and listed in paragraph 46 above, and even if the issues raised by the Plaintiffs are indeed serious and ultimately resolved in their favour, damages would nonetheless constitute an adequate remedy. S/N zp0rbPgHeUSDEt1qkmSsIw

There is also no irreparable harm to the Plaintiffs that would justify injunctive relief, as on the facts of the present case, this Court finds that any loss alleged by the Plaintiffs is quantifiable and can be adequately compensated by an award of damages.

On this issue, His Lordship Ong Chee Kwan JC (as he then was), in the High Court case of Cranborne Enterprises Limited & Anor v Export-Impot Bank of Malaysia Berhad & Ors [2019] MLJU 653 opined as follows: “[74] In any case, damages will be an adequate remedy. The Hotel is a commercial property and the Plaintiffs’ main dis-satisfaction has to do with the purchase price that can be obtained for the same. Such concerns can be easily compensated by an order for damages, if necessary.”

Similarly, His Lordship Mohamad Shariff JC (as he then was) in the High Court case of Poh Chee Leng & Anor v Cheah Siew Huen & Anor [2018] MLJU 2022 held as follows: “[20] Furthermore, the Plaintiffs have in actual fact quantified the losses that they may suffer through the loss of profits that the Plaintiffs’ failed to make from a possible sale and/or a potential joint venture project. The Plaintiffs have alleged that there had been a prospective buyer who intended to purchase the subject land for RM6.5 million but the transaction did not proceed due to the transfer of the S/N zp0rbPgHeUSDEt1qkmSsIw subject land to the Second Defendant. The Plaintiffs have alleged that by virtue of the transfer of the subject land from the First Defendant to the Second Defendant at a purported price below market value, the Plaintiff have lost out on the profits as the value of the subject land was estimated at an alleged figure of RM9 million. The Plaintiffs have also alleged that there had been negotiations for a joint venture agreement with one Parkway Land Sdn. Bhd. to develop the subject land for commercial purposes. Having regards to this, it is my considered view that the Plaintiffs’ losses at all material times are monetary in value to which damages are an adequate remedy. Furthermore, the Plaintiffs have pleaded general damages, thus acknowledging that damages are an adequate remedy.”

Premised on the above, this Court finds that the alleged loss suffered by the Plaintiffs is purely financial in nature and therefore compensable in damages. Indeed, the Plaintiffs themselves expressly plead in paragraph 60(c) of Enclosure 2 that their remedy is the alleged difference between the purchase price and the supposed market value.

This supports the contention that damages would be an adequate remedy, thereby defeating the second limb of the American Cyanamid test. S/N zp0rbPgHeUSDEt1qkmSsIw

This is all the more so when counsel for the Plaintiffs, during oral submissions, expressly conceded that the difference in actual market value of the Mall and the purchase price paid by the 4th Defendant is quantifiable, and that the sole purpose of seeking the injunction is merely to ensure that the land remains in the possession of MBSB.

This Court is guided by the Court of Appeal in the case of Perak Hydro Renewable Energy Corporation Sdn Bhd & Anor v Wak Ngah Pili a/p Bah Adim (menyaman untuk diri sendiri dan untuk 22 individu suku kaum Senai sepertimana yang tersenarai dalam ‘Appendiks A’) [2022] MLJU 2570 wherein His Lordship Kamaludin Md Said JCA (as he then was) held as follows: “[63] Be that as it may, the prayer indicates that damages are an adequate remedy in the circumstances. Therefore, the basis for exercising the court’s equitable jurisdiction does not arise in this action. Associated Tractors Sdn. Bhd v Chan Boon Heng & Anor [1990] 2 MLJ 408 is a case where an injunction was not granted by the court on the basis that the damages would be an adequate remedy. Hashim Yeop Sani CJ held as follows: - “But it would seem quite clear that the most important factor to consider as a matter of principle is the question of whether in lieu of the injunction damages would be an adequate and proper remedy because in the matter of injunctions and exercising its jurisdiction the Court acts upon the principle of preventing irreparable S/N zp0rbPgHeUSDEt1qkmSsIw damage. As Lindley LJ said in London & Blackwell Rly. Co. v. Cross [1986] 31 Ch D 354 at p. 369: The very first principle of injunction law is that you do not obtain injunctions for actionable wrongs for which damages are the proper remedy. .... Therefore, the injunction was in our view not properly granted. In a case like this, it would be more appropriate to order an early hearing of the application to strike out the counter claim and the application for summary judgment rather than to grant the injunction.” [64] The High Court in Kawood Sdn Bhd V. HSBC Bank Malaysia Bhd & Ors [2001] MLJU 650, held that in the statement of claim, the Plaintiffs are claiming for damages to be assessed together with interest. By its own admission, the Plaintiff acknowledged that damages are an adequate remedy and can be assessed and quantified. As such, the court said that there is no basis to grant the injunction to the Plaintiff. [65] Similarly, in Kilang Kosfarm Sdn Bhd V. Kosma Nusantara Bhd (No 2) [2002] 5 MLJ 662, Ramli Ali J (as he then was) held that the Plaintiff have prayed in prayers 3 and 4 of the statement of claim for general and exemplary damages and to ascertain the damages suffered by the Plaintiff from the time the Plaintiff was expelled from the said estate until the time when vacant possession of the said estate is handed over to the Plaintiff as prayed in prayer 2 of the statement of claim. On all those provisions, S/N zp0rbPgHeUSDEt1qkmSsIw His Lordship satisfied those damages seem to be a suitable and adequate remedy for the Plaintiff.”

On the same note, His Lordship Zainal Adzam J (as he then was), in Ahmad bin Haji Bakar lwn Tenaga Nasional Bhd [2008] 4 MLJ 800 in assessing whether damages were an adequate remedy, had this to say: “Satu perkara yang juga menghalang permohonan plaintif untuk mendapatkan perintah-perintah injunksi ialah kerana plaintif juga telah memohon ganti rugi bagi amaun tertentu, iaitu RM3.4 juta. Ia bermaksud bahawa plaintif akan berpuas hati dengan ganti rugi yang mengikutnya boleh dibuktikan amaunnya. Adalah menjadi prinsip asas undang-undang injunksi bahawa perintah injunksi tidak boleh diperolehi bagi apa-apa kesalahan yang boleh diambil tindakan sekiranya ganti rugi merupakan remedy yang betul dan mencukupi (mengikut Lindley LJ dalam kes London & Blackwell Railway Co v Cross (1886) 31 Ch D 354; di ms 369). Hashim Yeop A Sani HB (Malaya) dalam kes Associated Tractors Sdn Bhd v Chan Boon Heng & Anor [1990] 2 MLJ 408 telah menjelaskan rasionalnya seperti berikut: “But it would seem quite clear that the most important factor to consider as a matter of principle is the question of whether in lieu of the injunction damages would be an adequate and proper remedy because in the matter of injunctions and exercising its jurisdiction the court S/N zp0rbPgHeUSDEt1qkmSsIw acts upon the principle of preventing irreparable damage.”

As the alleged losses are readily quantifiable, this demonstrates that damages constitute an adequate remedy in the present case. Whether Undertaking as to Damages given by the Plaintiffs is

The injunctive relief being sought is to injunct the sale of the Mall until the disposal of this suit. In the event the injunction is to be granted, realistically, the suit is likely to take approximately one year to be concluded at the level of a full trial, including the filing of submissions and the delivery of the Court’s decision. This estimate does not take into account the likelihood of further interlocutory applications and any appeals, which may extend the final resolution of the matter to two to three years.

While awaiting the court’s decision at the end of the trial, parties would likely suffer the following damages:

The 4th Defendant:

the loan agreement for the sum of RM33 million entered into by the 4th Defendant may be terminated thereby giving rise to substantial losses, including operational S/N zp0rbPgHeUSDEt1qkmSsIw disruptions and consequential losses flowing from such termination;

(ii) will be liable to the interest charges on the loan facility, and any other consequential losses arising from the termination of the loan facilities;

The 1st and 2nd Defendants:

would be compelled to continue operating the mall, thereby exposing them to ongoing operational costs and risks;

(ii) incur further cost towards their professional services;

the 3rd Defendant:

will be unable to realise some part of their debts ie. the sum of RM33 million paid for the purchase of the Mall;

(ii) especially given the depreciating nature of the property, the 3rd Defendant will suffer further losses over time;

(iii) interest on the outstanding facilities of MSMSB will continue to accrue as against the Plaintiffs throughout the restrained period.

Collectively, these factors are likely to substantially inflate the quantum of damages in the event of any assessment of damages in the said proceedings, in the event the decision of this Court at the end of trial is not in favour of the Plaintiffs. S/N zp0rbPgHeUSDEt1qkmSsIw

As regards the Plaintiffs, it must be emphasised that they are already heavily indebted and have, for a considerable period, been unable to service their loan obligations, which has led to their present predicament. The Plaintiffs’ original loan of RM86 million has, due to accrued interest, increased to approximately RM90 million and continues to rise.

Notably, the Plaintiffs have been unable to procure any purchaser for the property. The only undertaking as to damages they are able to offer comprises of two shop lots valued at approximately RM2.4 million, which are themselves subject to a charge in favour of EON Bank Berhad securing a debt of RM3 million. This undertaking is plainly inadequate in light of the magnitude of the losses that are likely to be suffered by the Defendants if the injunction is granted.

On the issue of undertaking as to damages, this Court is guided by the Court of Appeal in Tan Bun Teet & Ors v. Menteri Sains Teknologi Dan Inovasi Malaysia & Ors [2013] 3 MLJ 676 wherein His Lordship Azahar Mohamed JCA (as he then was) held as follows: “[11] … It is trite law that an applicant for interlocutory injunction must provide valuable undertaking to pay damages and further the applicant must show that he has means to fulfil the said undertaking (see Zaidin Abd Ghani v Raja Raman Nair & Ors [2001] 6 CLJ 558 and Belize Alliance of Conservation Non-Governmental Organisation v Department of Environment (Practice Note) [2003] 1 WLR S/N zp0rbPgHeUSDEt1qkmSsIw 34 2839 and R v Inspectorate of Pollution, ex p Greenpeace Ltd). In our judgment, the appellants as private individuals have not shown proof of their financial standing to make good their bare undertaking, given under para 9 of the appellant’s affidavit in support of the injunction/stay application.”

Justice Edgar Joseph Jr (as he then was) in Lim Kit Siang v United Engineers (M) Bhd & 3 Ors [1988] 1 MLJ 35 similarly held as follows: “Finally, the sufficiency of the personal undertaking as to damages offered by the plaintiff was open to serious doubt because, although the proposed contract had not yet been signed, some preparations must have been made since its execution was imminent. It is trite law that if the plaintiff is not in a financial position to honour his undertaking as to damages, and appreciable damage to the defendant is likely, an injunction must be refused: Morning Star Co-Operative Ltd v Express Newspapers Ltd [1979] FSR 113. However, having regard to the absence of any evidence as to the expenditure incurred in such preparations, I did not think it right or fair to place any reliance on this particular ground and I accordingly disregarded it. In all the circumstances, the application was dismissed. However, I made no order as to costs as the application was made ex parte.” S/N zp0rbPgHeUSDEt1qkmSsIw

On the present facts, the Plaintiffs failed to show proof of their financial standing to fulfil the undertaking given, considering that:

The Plaintiffs are massively indebted for the sum of RM86 million; and

Although the value of the 2 shop lots is RM2.4 million, there is however a charge over the 2 shop lots by Eon Bank Berhad for a debt of RM3 million.

Further, this court notes that the Plaintiff incorrectly averred at paragraph 41 of its Affidavit in Reply affirmed by Dato Pheng Chin Kiat on 17.10.2025 (“Enclosure 31”) to state that the said shop lots are free of encumbrances, when the Plaintiff’s own exhibits in PCK- 47 and PCK-50 in Enclosure 31, which is the SSM search on the company and the title searches on the shop lots, show that there is a charge on the shop lots by Eon Bank for the sum of RM3 million.

Taking into these circumstances, this court finds that the undertaking given by the Plaintiffs is not worth the paper it’s written on. Where does the Balance of Convenience Lie?

The balance of convenience strongly favours refusing the injunction. This is because the SPA has been fully concluded, with the 4th S/N zp0rbPgHeUSDEt1qkmSsIw Defendant already having paid substantial monies and taken possession of the Mall. The 4th Defendant has also assumed various ongoing obligations under the SPA, including tenancy assignments and operational responsibilities. Any injunctive order at this stage would cause real and substantial prejudice to the 4th Defendant and disrupt a completed commercial transaction.

Furthermore, the 1st and 2nd Defendants had attempted 5 times to sell the Mall, and there were no buyers.

Moreover, the Plaintiffs’ private caveat registered on 29.7.2025 already prevents any dealings with the land for the time being, including the registration of the transfer to the 4th Defendant and the financier’s charge. The relief sought is therefore unnecessary as the caveat itself continues to hold up registration of the title. An injunction would serve no practical purpose and would merely compound the prejudice to the Defendants.

The injunction is also futile because the sale has already been completed. The purchase price has been paid, possession delivered, and the tenancies assigned. The only remaining step is registration of the transfer, which the caveat already restrains. The relief now sought would effectively interfere with a concluded transaction, which is a relief only granted in the clearest of cases, and this is not such a case. S/N zp0rbPgHeUSDEt1qkmSsIw Setting Aside of the Ex-Parte Order dated 1.10.2025 in

On 1.10.2025, the Plaintiffs appeared before this Court for an ex-parte injunction in Enclosure 3 which was granted pending disposal of the interim injunction, and subsequently this Court fixed the inter-partes hearing on 14.10.2025.

On 14.10.2025, after hearing submissions from the parties, this Court proceeded to grant an ad-interim injunction following the ex-Parte Order dated 1.10.2025, save and except the addition of the words “save and except for the purposes of managing and operating the Mall” at the end of paragraph 2 of the ex-parte Order dated 1.10.2025.

Subsequent to the granting of the Ad-Interim Order dated 14.10.2025, this Court proceeded to fix the inter-partes Hearing of Enclosure 3 as well as the hearing of Enclosure 14 and Enclosure 21 on 31.10.2025. This Court then delivered its decision on 1.12.2025, dismissing the interim injunction pending the disposal of the suit in Enclosure 2.

The Defendants argued that the Plaintiff had failed to comply with Order 29 Rule 1(2A) of the Rules of Court 2012 for failing to disclose the following material facts: S/N zp0rbPgHeUSDEt1qkmSsIw

The bank having initially filed the 1st Suit and had obtained judgment against the Borrower and the guarantors including the Plaintiffs, for the sums owed under the said facilities;

In the same suit, the Plaintiffs counterclaimed against the 1st Receiver raising allegations on the manner which she exercised her powers and duties as receiver and manager inter alia in the manner in which the Mall was managed and upkept;

On the application of the 1st Receiver, the High Court struck out the counterclaim in the 1st Suit, which was appealed against by the Plaintiffs;

The Court of Appeal dismissed the appeal by the Borrower and the Plaintiffs; and

Subsequently, the 2nd Plaintiff had lodged a Private Caveat on the Land on 29.7.2025.

It is trite law that strict compliance with Order 29 Rule 1(2A) of the Rules of Court 2012 is mandatory.

In the Court of Appeal case of Motor Sports International Ltd (Servants or Agents or Agents at Federal Territory of Labuan) & Ors v Delcont (M) Sdn Bhd [1996] 2 MLJ 605, His Lordship Gopal Sri Ram JCA (as he then was) succinctly held as follows: S/N zp0rbPgHeUSDEt1qkmSsIw “The provisions of O 29 r 2A were introduced by amendment in order to ensure that ex parte injunctions of any sort were not granted willy-nilly, but only in cases where they were truly called for. In order to ensure that the policy behind the introduction of r 2A is not defeated, high courts must demand strict compliance with its terms. More so, when the relief applied for is in the nature of a Mareva or an Anton Piller type of injunction because of the incalculable harm and damage that may be caused to a defendant by the grant of either of these orders.”

The abovesaid principle was echoed in the Court of Appeal case of Castle Inn Sdn Bhd v Bumiputra-Commerce Bank Berhad [2009] 1 MLJ 542, as follows: “It is an established general rule of law that when a party makes an ex parte application to the Court of any kind, he must make a full and frank disclosure of all relevant matters. This general rule applies in particular to an ex parte application for extension of the validity of a writ; and an extension can be refused on this ground alone: per Lord Brandon of Oakbrook, speaking for the House of Lords in Baly and Anor, supra. In, The King v The Special Commissioners for The Purposes of the Income Tax Acts for The District of Kensington, ex parte Princess Edmond De Polignac [1917] 1KB 486, 509, Warrington CJ. held, inter alia, as perfectly well settled that a S/N zp0rbPgHeUSDEt1qkmSsIw person who makes an ex parte application to the Court ie in the absence of the person who will be affected by that which the Court is asked to do, is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by reason of the order which has thus wrongly been obtained by him. Within our shores, in Creative Finishing Sdn. Bhd v Wong Koi @ Wong Khoon Foh d/a Syarikat Sri Jaya [1989] 2 CLJ 93, 96 SC, Mohd. Azmi SCJ (as he then was) explained that:

In presenting affidavit evidence for an ex parte order, it is incumbent upon an applicant to make full and frank disclosure of all material facts;

Every material representation must not be misleading, and there must not be any suppression of material facts; and

Failure to do so at the crucial time of making the ex parte application would invariably be fatal. A similar sentiment was shown by Steve Shim J (later CJ (SS) in Yeoh Kee Aun, supra, at p 514 to the effect that where there is a failure to disclose material facts within his knowledge in an ex parte application by a party or where there is any material misrepresentation, it will result in the Court setting aside the ex parte order obtained.” S/N zp0rbPgHeUSDEt1qkmSsIw 41 86. Premised on the foregoing authorities, this Court finds that the Plaintiffs failed to make full and frank disclosure in the present application, of the following material facts:

That the previous 1st Suit concerned the same subject matter, i.e., the Mall; and

The Plaintiffs, through their counterclaim, had sought a declaration that MSMSB be removed from the control of its Receiver and Manager and restored to the Plaintiffs, and general damages arising from the negligence and failure of the 3rd Defendant Bank and the Chan Siew Mei, the then Receiver and Manager of MSMSB.

Had this court been made aware of the 1st Suit, this court would have considered the possibility of the doctrine of res judicata applying on the issue of the duty of Receiver and Manager towards the Plaintiffs as directors and shareholders of a company in receivership.

This is because the Temerloh High Court in the Previous Suit 1 had made a finding, inter alia, that the Receiver and Manager of MSMSB did not have any relationship with the Plaintiffs as the directors and shareholders MSMSB, and therefore do not owe any duty to them. S/N zp0rbPgHeUSDEt1qkmSsIw

Had the Plaintiffs made specific disclosure of that particular suit, this court would not have granted the ex-parte Order and would have converted to an inter partes hearing.

Although the ex-parte Order was initially granted on grounds of urgency, as the land was said to be on the verge of transfer, and an early date was fixed to accommodate an inter partes hearing, with the balance of convenience at that time favoured in maintaining the status quo until the disposal of the interim injunction application, the Plaintiffs nevertheless failed to discharge their duty of full and frank disclosure at the time of seeking an ex-parte Order.

In these circumstances, the Plaintiffs’ material non-disclosures and suppressions amount to a clear breach of the duty owed to this Court, which goes to the root of the ex-parte application and is, in itself, fatal. Accordingly, the reliefs sought cannot be sustained and ought to be dismissed.

In respect of the damages sought, this Court is of the view that, in light of the ex-parte Order having been varied to permit the operation and management of the Mall by the 4th Defendant, there is effectively no necessity for any assessment of damages.

For completeness, this court finds that there is no need for assessment of damages for the 1st, 2nd and 4th Defendant during the S/N zp0rbPgHeUSDEt1qkmSsIw period of the ex-parte and ad-interim injunction pending the disposal of the inter partes interim injunction as the 4th Defendant was still allowed to continue operating the Mall and that the ex-parte Order was granted on 1.10.2025, and thereafter extended by an ad-interim injunction until 1.12.2025, over a period of 2 months only.

For all the above reasons, the Plaintiffs have wholly failed to satisfy the requirements for an interim injunctive relief. There is no bona fide serious issue to be tried, and in the event if there are any at trial or if the Plaintiffs’ succeed then damages would be an adequate remedy, the undertaking of damages are insufficient and unenforceable, and the balance of convenience favours the Defendants. As such, the interim injunction sought is dismissed in its entirety with cost as follows:

RM5,000.00 to be paid to the 1st and 2nd Defendant for Enclosure 3 subject to allocatur fee;

RM5,000.00 to be paid to the 4th Defendant for Enclosure 3 subject to allocatur fee;

RM5,000.00 to be paid to the 4th Defendant for Enclosure 14 subject to allocatur fee; and

RM5,000.00 to be paid to the 1st and 2nd Defendant for Enclosure 21 subject to allocatur fee. S/N zp0rbPgHeUSDEt1qkmSsIw Dated this 30th January 2026. YA Tuan Kuldeep Kumar A/L Jamna Dass Judicial Commissioner High Court Temerloh Solicitors for the Plaintiffs: Messrs S. Muhillan (Muhillan A/L Sivananthan and Mohd Danish bin Shahrir) Solicitors for the 1st and 2nd Defendants: Messrs Raja, Darryl & Loh (Teoh Chye Yi) Solicitors for the 3rd Defendant: Messrs Skrine (Neshel Inbashekaran) Solicitors for the 4th Defendant: Messrs Gideon Tan Razali Zaini (Gideon Tan, Chong Chi Ern and Muhammad Alif Ashraf bin Hamzah) S/N zp0rbPgHeUSDEt1qkmSsIw