Ten Thiam Choy v Lim Lee Took (WA-22NCC-174-03/2023)

TEN THIAM CHOY

METRO SETIA DEVELOPMENT SDN BHD (COMPANY NO.: 1029886-K) …PLAINTIFFS

LIM LEE TOOK

DATO’ YIP KUM FOOK (NRIC NO.: 550801-10-6259) …DEFENDANTS JUDGMENT (NO. 2) (Enclosure 26) Introduction [1] The Plaintiffs filed this suit against the Defendants to impeach a judgment given on 14.6.2019 (“the 2019 Judgment”) after full trial in Kuala Lumpur High Court Civil Suit No. WA-22NCC-491-12/2017 (“Suit 491”). The Plaintiffs’ claim that the Defendants had fraudulently altered 5 documents which were tendered in Suit 491. Additionally, the Plaintiffs also seek to impeach and or set aside other consequential orders to the 2019 Judgment and even an order by the Court of Appeal dated 20.11.2020. [2] The Plaintiffs are relying on Section 44 of the Evidence Act 1950 (“EA 1950”) which stipulates thus: “44 Fraud or collusion in obtaining judgment or incompetency of court may be proved Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud or collusion.” [3] The Defendants applied through Enclosure 26 to strike out the Plaintiffs’ action under Order 18 Rule 19 (1) paragraphs (b), (c) and/or (d) of the Rules of Court 2012. [4] After perusal of the parties’ respective written submissions and upon hearing counsel’s oral submissions, this Court granted an order in terms of the Defendants’ application on the ground that this is indeed a plain and obvious case to strike out the action. [5] The fraud in Section 44 of EA 1950 must be actual positive fraud. The 2019 Judgment cannot not be impeached or set aside on a mere general allegation of fraud. In this case, the Plaintiffs have not shown with sufficient details how, when, where and in what way the alleged fraud was committed. On the contrary, the allegations had already been previously dismissed by the Court in earlier pro0ceedings. Background Facts Suit 491 [6] The 1st Defendant (“Lim”) was the plaintiff in Suit 491, while the Plaintiffs here were named as the 1st and 2nd defendants in Suit 491. Lim was a director of the 2nd Plaintiff (“Metro Setia”) and she was also the legal and beneficial owner of 150,000 ordinary shares, representing 30% of the issued and paid-up capital of Metro Setia. The 1st Plaintiff (“Ten”), was the legal and beneficial owner of 349,999 ordinary shares in Metro Setia, representing approximately 70% of the issued and paid-up capital of Metro Setia. Ten was also a director of Metro Setia and acted as its Managing Director. [7] Suit 491 was a minority oppression suit filed by Lim as a shareholder. Lim sought for, inter-alia, the following remedies and reliefs against Ten and Metro Setia: - “(a) A declaration that there exists a quasi-partnership between Lim and Ten which was formalized through Metro

A declaration that the affairs of Metro Setia were being conducted by Ten in a manner oppressive to Lim as a member of Metro Setia and/or in breach of the terms and conditions and/or legitimate expectations and/or the implied terms of mutual trust and confidence arising from the quasi-partnership between Ten and Lim;

A declaration that the acts and/or omissions of Ten unfairly discriminate against or is otherwise prejudicial to Lim as a member of Metro Setia;

That an independent auditor be appointed to investigate and audit the accounts of Metro Setia from 2014 to the date of the Order to be made at the expense of Ten; and

That Ten be made to pay Metro Setia all sums found to be due and owing from Ten, if any, upon the independent auditor concluding his investigation, which sums will include all sums unaccounted for.” [8] In the very same suit, Ten filed a counterclaim against Lim, one Amir Nordin bin Alias and Dato’ Yip Kum Fook (the 2nd Defendant in this suit) (“Dato’ Yip”) seeking, inter-alia, the following reliefs and remedies: - “(a) A declaration that Metro Setia is not a quasi-partnership company between Ten and Lim;

A declaration that Dato’ Yip was and still is the real owner of the 150,000 ordinary shares of RM1.00 each and 1 ordinary share of RM1.00 held respectively by Lim and

A declaration that Amir Nordin bin Alias and Lim were and still are nominees of Dato’ Yip in Metro Setia” [9] After a full trial which was held over 16 days, the Learned High Court Judge determined that the affairs of Metro Setia were indeed being conducted in a manner which was oppressive, and granted Lim the reliefs sought as set out in the 2019 Judgment. Ten’s counterclaim against Dato’ Yip was dismissed with costs. The Court’s findings were based upon the documentary and oral evidence adduced before the Court by all parties in Suit 491. [10] The court thereafter made further orders for the appointment of an independent auditor to investigate and audit the accounts of Metro Setia. Messrs Ler Lum were appointed as the independent auditors to conduct the audit. On 2.11.2022, premised upon the Independent Auditor’s Report dated 25.4.2022, which was prepared by Messrs Ler Lum, the High Court granted Lim various orders against Ten and Metro Setia, which included a mandatory buy-out of Lim’s shares in Metro Setia by Ten at a predetermined price (“the 2.11.2022 Order”). Ten and Metro Setia did not appeal against the 2.11.2022 Order. [11] Upon expiry of the 30 days’ time period stipulated in the 2.11.2022 Order and Ten’s non-compliance of the mandatory buy-out, Lim applied to enter final Judgment against both Ten and Metro Setia, as provided for in the 2.11.2022 Order. Ten and Metro Setia filed an application for stay of proceedings pending the disposal of this Impeachment Suit. On 18.5.2023, Lim obtained a final Judgment (“the Final Judgment”) against Ten and Metro Setia in Suit 491 after the application for the stay of proceedings was dismissed on the same day by the Learned Judge who found that Ten and Metro Setia had failed to establish any special circumstances. [12] Ten and Metro Setia had appealed against the 2019 Judgment to the Court of Appeal and through several appeals and or motions, the Court of Appeal had made the following Orders: a) Ten’s appeal against the Lim and Dato’ Yip (W-02(NCC)(W0- 1287-07/2019) was struck off on 20.11.2020; b) Metro Setia’s motion for extension of time for leave to file an appeal (B-08-300-08/2019) was allowed on 3.2.2020; c) Ten’s application for leave to refile a fresh appeal against Lim and Dato’ Yip (W-08-29-01/2021) was dismissed by the Court of Appeal on 29.7.2021; and d) Metro Setia’s appeal (W-02(NCC)(W)-257-02/2020) was discontinued and struck off on 26.4.2021. [13] On 6.3.2023, Ten and Metro Setia commenced committal proceedings against Lim in Suit 491. Leave was granted by the High Court. However, upon hearing the committal application proper on 11.07.2023, the same was dismissed by the Learned Judge with costs of RM20,000.00. The Learned Judge ordered that costs of RM15,000.00 was to be borne by Ten and Metro Setia whilst costs in the sum of RM5,000.00 was ordered to be borne by the solicitors for Ten and Metro Setia due to the frivolity of the grounds upon which the application was based. [14] Critically, the grounds alluded to by Ten in his affidavit in support of the committal proceedings in Suit 491 are identical to the grounds upon which this Impeachment Suit has been filed. Ten had deposed in his affidavit that there were elements of fraudulent alterations in the contents of documents used during the trial of Suit 491 and in the affidavits deposed by Lim at an interlocutory stage of the proceedings. [15] The documents cited by Ten were Metro Setia’s Trading & Profit Loss Account for the year 2016 and the Trust Deed dated 2.3.2015 between Metro Setia and Lim. Ten and Metro Setia have since filed an appeal to the Court of Appeal against the decision dismissing the committal and the appeal is pending. [16] On 23.5.2023, Ten and Metro Setia filed an application for a stay of execution of the Final Judgment in Suit 491. The application for stay was dismissed on 17.8.2023. Ten and Metro Setia have filed an appeal to the Court of Appeal against the dismissal of the application for a stay of execution. Therefore, Ten and Metro Setia have 3 pending appeals in the Court of Appeal arising from Suit 491 i.e. an appeal against the Final Judgment, the dismissal of the committal against Lim and the dismissal of the stay of execution. The Present Impeachment Suit The Reliefs [17] Having exhausted the appellate process against the 2019 Judgment, the Plaintiffs filed the present suit seeking, inter-alia, to impeach the 2019 Judgment, on the alleged basis that the3 contents of several documents adduced in Suit 491 were purportedly fraudulently altered by the Defendants. The Plaintiffs also seek to go beyond Suit 491 by seeking to impeach and or set aside the Order of the Court of Appeal given on 20.11.2020 which struck off their appeal against the 2019 Judgment. For ease of reference, the reliefs sought by Ten and Metro Setia in this suit are reproduced below: “66.1. Declaration that Lim Lee Took’s action in tendering the Trading and Profit and Loss Account) Metro Setia for the year 2016 is an act of fraud which affect the Judgement dated 14.06.2019 in Civil Suit No: WA-22NCC-491- 12/2017 pursuant to Section 44 of the Evidence Act 1950;

66.2. Declaration that Lim Lee Took’s action in tendering the Disclosure of Directors’ Remuneration, Shareholdings & Balances for the year 2016 is an act of fraud which affect the Judgement dated 14.06.2019 in Civil Suit No: WA- 22NCC-491-12/2017 pursuant to Section 44 of the

66.3. Declaration that Lim Lee Took’s action in tendering the “Friendly Loan Letter” dated 28.10.2016 for the year 2016 is an act of fraud which affect the Judgement dated 14.06.2019 in Civil Suit No: WA-22NCC-491-12/2017

66.4. Declaration that Lim Lee Took is a proxy/nominee to Dato’

66.5. Declaration that Dato’ Yip Kum Fook is the absolute beneficiary of the 30% shares of Metro Setia Development Sdn Bhd registered under the name of Lim Lee Took;

66.6. The Original Action Judgement and Counterclaim Judgement both dated 14.06.2019 through Civil Suit No: WA-22NCC-491-12/2017 is set aside/impeached;

66.7. The Striking Out Order of the Court of Appeal dated 20.11.2020 through Civil Appeal No: W-02(NCC)(W)- 1287-07/2019 is set aside/impeached;

66.8. All orders based on the Original Action Judgement and Counterclaim Judgement are set aside/impeached;” [18] It is to be noted here that the prayers in paragraph 66.4 and 66.5 involves issues that formed the crux of the parties’ dispute in Suit 491 and are clearly attempts to re-litigate the same. The 5 Trial Documents [19] The main focus of the claims relates to 5 documents, the contents of which, are alleged to have been fraudulently altered (“the 5 Trial Documents”). These are set out below together with a brief description of the Plaintiffs’ allegations in respect of each document and the Defendants’ position on each document: a) The Trading and Profit & Loss Account of Metro Setia for the year 2016 (“the Trading and Profit & Loss Account”)

The Plaintiffs have pleaded that the total accumulated profit amounting to RM9,646,268.24 in 2016 as shown in the Trading and Profit & Loss Account is erroneous. The Plaintiff claimed that the ‘the original document’ in fact shows the total accumulated profit for Metro Setia was in fact RM8,370,186.91. The Plaintiffs also cited that Metro Setia’s financial statement filed with the Companies Commission of Malaysia which stated the total accumulated profit for the company in 2016 to be RM6,674,575.00;

(ii) The Defendants contended that the Trading and Profit & Loss Account was in fact Metro Setia’s document that was given to Lim by the company when she was still a director. It was the only version made available to her. During the trial, the Trading and Profit & Loss Account was classified as a Part B document and the Plaintiffs’ counsel had conceded that the document belonged to Metro Setia. The said Counsel had in fact taken the contents of the Trading and Profit & Loss Account to be correct (the amount of the Accumulated Profit) and used it to cross-examine Lim;

(iii) Lim was subsequently removed as a director and no longer had access to the company’s financial documents and was not privy to the audited accumulated profits submitted with SSM;

(iv) As a document which admittedly emanated from Metro Setia, Lim or Dato’ Yip had no opportunity to alter the contents of the Trading and Profit & Loss Account. Lim and Dato’ Yip had no role in the preparation of the document. If there were any discrepancies in the contents of the document or if it was a draft given to Lim as an erstwhile director, it was incumbent upon the Plaintiffs to have raised these issues at trial in Suit 491. They had every opportunity to do so. b) The Disclosure of Directors’ Remunerations, Shareholdings & Balances of Metro Setia for financial year end 31.12.2016 (“the Disclosure of the Directors’ Remunerations”);

The Plaintiffs pleaded that the amount of RM643,468.70 stated in the Disclosure of the Directors’ Remuneration which represents the amount owing to Lim as Director’s Advance is incorrect and that the ‘actual record’ in fact shows the amount to be RM619,900.70;

(ii) The Defendants contended that the Disclosure of the Directors’ Remuneration is also a document which belonged to and emanated from Metro Setia and was classified as a Part B document at trial in Suit 491. The document was given to Lim by Metro Setia’s auditors after she was already removed as a director, for her to confirm the amount owing. Lim accepted the amount based on her records. She had no involvement whatsoever in the preparation of the document or in computing the amount due to her as stated in the Disclosure. If there were any discrepancies in the contents of the Disclosure or if it was merely a draft, it was incumbent upon the Plaintiffs to have clarified this at trial in Suit 491. They had every opportunity to do so; c) A Trust Deed between Lim and Metro Setia dated 02.03.2015 (“the Trust Deed”);

The Plaintiffs pleaded that there is fraud and or alteration of contents in the Trust Deed as there appear to be some spelling errors in the digital franking stamp system which shows Lim Lee Took’s name spelt as ‘Lim Lee Tool’ while Metro Setia Development Sdn Bhd was spelt as ‘Metro Setic Development Sdn Bhd’;

(ii) The Defendants contended that the Trust Deed was signed by Ten and Lim and it was classified as a Part B document in Suit 491. Its authenticity and contents were never disputed in Suit 491. The Trust Deed shows that a Toyota Vios car registered in Lim’s name was held by her on trust for Metro Setia. The Trust Deed was beneficial to Metro Setia and not Lim;

(iii) Ten admitted during cross-examination at trial in Suit 491 that he signed the Trust Deed and no issues were raised throughout the trial in Suit 491 in respect of the authenticity of the Trust Deed. The Plaintiffs have also failed to plead as to how exactly Lim or Dato’ Yip can be made responsible for typographical errors in the Stamping of the Trust Deed. Neither is there an explanation as to how such errors could possibly constitute fraud; d) Letter dated 21.3.2018 written by Lim to the Suruhanjaya Pencegahan Rasuah Malaysia (“the Letter to SPRM”); and

The Plaintiffs have pleaded that there is fraudulent alteration of contents and misrepresentation in the Letter to SPRM on the basis that the SPRM officers have now informed Ten that they never received the

(ii) The Defendants contended that the Letter to SPRM was sent by Lim to an officer in SPRM. During the trial in Suit 491, Lim testified that she prepared and sent the said letter to an officer of SPRM after she was asked to provide various explanations by the SPRM. The Letter lists out assets belonging to Lim, her monthly payments and a brief description of her dispute with Ten;

(iii) The document was classified as a Part B document during trial in Suit 491 and as far as Lim was concerned, the document was posted out to SPRM and it was not within her control to ensure that SPRM acknowledges its receipt;

(iv) The Plaintiffs have failed to plead how this allegation of purportedly not delivering a letter can, in law, amount to fraud or fraudulent alteration of a document and more importantly what, if any, impact this letter had on the outcome of Suit 491. e) A Friendly Loan Letter between Lim and Dato’ Yip dated 28.10.2016 (“the Friendly Loan Letter”)

The Plaintiffs have pleaded that the Lim and Dato’ Yip did not produce any financial records to prove the existence of a loan given by Dato’ Yip to Lim. It is therefore alleged that the Friendly Loan Letter between Lim and Dato’ Yip acknowledging the loan is fraudulent;

(ii) The Defendants contended that Lim and Dato’ Yip’s evidence in Suit 491 was that at the time when Lim invested in Metro Setia, Lim did not have sufficient funds and Dato’ Yip gave her a friendly loan. This enabled Lim to purchase shares in Metro Setia. The Friendly Loan Letter is an acknowledgement of the said loan and an expression of Lim’s appreciation to Dato’ Yip for the same. Both Lim and Dato’ Yip accepted/admitted the authenticity and contents of the Friendly Loan Letter. The letter does not involve Ten or Metro Setia;

(iii) the Friendly Loan Letter was classified as a Part C document by the Plaintiffs and remained as such throughout the trial. The Learned Judge in Suit 491 did not consider the Friendly Loan Letter at all in arriving at her decision.

(iv) The Plaintiff’s pleadings do not explain in what manner the contents of the Friendly Loan Letter had been fraudulently altered or what impact, if any, this letter had on the outcome of Suit 491. The Striking Out Application Court’s Deliberations [20] The Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1 (“Seruan Gemilang”) dealt with Section 44 of the EA 1950 stating thus: “[39] Our view is that the fraud of which s 44 of the Act speaks refers to an actual fraud and not constructive fraud ie fraud practiced by the other side must have prevented the respondents from placing their case before the court. [40] The fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance (see Patch v Word). [41] The earlier judgment cannot be impeached or set aside on a mere general allegation of fraud. It must be shown with sufficient details how, when, where and in what way the alleged fraud was committed.” “In any case, the fraud referred to in s 44 of the Act had to be actual positive fraud, ie a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance. Thus, the earlier judgment could not be impeached or set aside on a mere general allegation of fraud and it had to be shown with sufficient details how, when, where and in what way the alleged fraud was committed.” [21] Also, in the Court of Appeal case of Pembangunan Tanah dan Perumahan Sdn Bhd v Raja Qahaarruddin bin Raja Abdul Aziz [2020] 2 MLJ 462 (“Raja Qahaarruddin”), reference was made to another Court of Appeal judgment in Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346; [2001] 1 MLRA 98 where the latter expounded as to what must be shown before a judgment could be impeached pursuant to Section 44 of the EA 1950: “[58] In SP Chengalvaraya v Jagannath AIR 1994 SC 853 at p 854, the Supreme Court of India dealt with the equipollent provision in the Indian Evidence Act 1872 (which is in pari materia with our s 44). There is a useful passage in the judgment of Kuldip Singh J. It is as follows: It was up to the defendants, to plead and establish by gathering all the necessary materials, oral and documentary, that the plaintiff had no title to the suit properties. It is their duty to obtain an encumbrance certificate and find out whether the plaintiff had still a subsisting title at the time of the suit. The plaintiff did not prevent the defendants, did not use any contrivance, nor any trick nor any deceit by which the defendants were prevented from raising proper pleas and adducing the necessary evidence. The parties were fighting at arm’s length and it is the duty of each to traverse or question the allegations made by the other and to adduce all available evidence regarding the basis of the plaintiff’s claim or the defence of the defendants and the truth or falsehood concerning the same. A party litigant cannot be indifferent and negligent in his duty to place the materials in support of his contention and afterwards seek to show that the case of his opponent was false. The position would be entirely different if a party litigant could establish that in a prior litigation his opponent prevented him by an independent, collateral wrongful act such as keeping his witnesses in wrongful or secret confinement, stealing his documents to prevent him from adducing any evidence, conducting his case by tricks and misrepresentation resulting in his misleading of the court. The principle then to be culled from the authorities is that a judgment may be impeached for deliberate fraud practised upon the court, and it is insufficient to show that a litigant merely convinced the court through misleading or erroneous evidence. Whether the test has been met in any given case must, I think, depend on the facts and circumstances of the particular case …” [emphasis added] [22] Similarly, in the present matter, the Plaintiffs cannot seek to impeach the 2019 Judgment by merely insinuating baseless allegations in lieu of the existence of a deliberate and positive fraud. The Plaintiffs have not provided any details of the fraud and or alterations perpetrated by the Defendants on the contents of the 5 Trial Documents nor did the Plaintiffs plead any facts to show that the Defendants had acted in wrongful manner which actively prevented the Plaintiffs from adducing any new evidence or discovering the alleged ‘fraud and or alteration in the contents of documents’ in Suit 491 at all. [23] In the Statement of Claim, the Plaintiffs merely pleaded the background facts to reproduce the entire chronology of Suit 491 and the subsequent appeal by Ten together with insinuations of fraud without any particulars as to the Defendants’ alleged role(s) in the alleged fraud and or alteration to the 5 Trial Documents. [24] I agree with learned counsel for the Defendants that the Statement of Claim is completely devoid of all or any particulars of fraud. This goes to show that the entire claim is frivolous, without merits and a blatant abuse of the court process. [25] The Plaintiffs were duly represented by their solicitors throughout the trial in Suit 491, had ample opportunity to bring forth the allegations raised in respect of the 5 Trial Documents but failed to do so. The 5 Trial documents were all tendered before the Court in Suit 491 and issues in relation to whether Dato’ Yip was the beneficial owner of 30% shares in Metro Setia and whether Lim was his proxy or nominee had been thoroughly deliberated in Suit 491. The Plaintiffs had the obligation to put forth their case to the best of their abilities. Instead, having failed to do so, the Plaintiffs are now seeking a second opportunity to ventilate the same matter before this Court after more than 3 years since the disposal of Suit 491 and multiple failed attempts at the Court of Appeal. [26] It is my judgment that insofar where the Plaintiffs are now seeking to re-litigate issues already determined in Suit 491, the Plaintiffs are estopped by res judicata and they cannot be allowed to re-open and re-litigate the same issues on the pretense of ‘fraud and or alteration of contents’ of the 5 Trial Documents. [27] With regards to the 5 Trial Documents, I agree with learned counsel for the Defendants that the entire Impeachment Suit is founded on mere suspicions without any factual plea of the commission of an actual fraud. In fact, 4 out of the 5 Trial Documents (the exception being the Friendly Loan Letter which will be dealt separately) were within the Plaintiffs’ possession at all material times in the course of Suit 491 and were categorized as Part B documents. This has not been denied by the Plaintiffs in this suit. [28] The effect of placing these documents in Part B of the Common Bundle of Documents is trite. The Plaintiffs cannot seek to retract their admission as to the authenticity of those trial documents through this suit. The following excerpt from the Court of Appeal in the case of Pan Malaysian Pools Sdn Bhd v Kwan Tat Thai & Anor and other appeals [2018] 4 MLJ 461 (“Pan Malaysian Pools”) is instructive: “(3) By unequivocally withdrawing their cases in the Industrial Court, the respondents were deemed to have accepted the appellant’s decision to dismiss them for those charges. In short, the respondents admitted that they were guilty of the misconducts and the appellant was entitled to dismiss them. It was therefore no longer open to the respondents to take the position in this suit that they were not liable for the same” “(19) It is submitted that the Respondents cannot ‘approbate and reprobate’ and are estopped from contending now that they are not liable for the breaches of their employment contracts, which were also the substance of misconducts for which they were dismissed. Please see the Court of Appeal in Cheah Theam Kheng v City Centre Sdn Bhd (see Tab 30, ABA(3)): In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376, at pp 383–384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [29] Quite apart from blowing hot and cold, the Plaintiffs, through their counsel had admitted that the Trading and Profit & Loss Account is in fact Metro Setia’s document. The counsel had relied on the said document in the course of his cross-examination of Lim during the trial in Suit 491. This has also not been denied by the Plaintiffs. The 5 Trial Documents were thoroughly evaluated during the trial of Suit

The Plaintiffs had the opportunity to cross-examine the Defendants’ witnesses at trial on the contents and veracity of the said documents. [30] At no time was any allegation of fraud raised despite the fact that Ten was the Managing Director of Metro Setia and had exclusive access to all the company’s documents. Based on Pan Malaysian Pools, it does not now lie in the Plaintiffs’ mouth to recant their admission on the authenticity of the documents and to adopt an entirely opposite stance on the 5 Trial Documents based purely on conjecture and speculations. [31] Turning now to the Friendly Loan Letter, this had remained a Part C document throughout the trial of Suit 491. In this regard, again, the Plaintiffs failed to provide any particulars on the alleged ‘elements of fraud and/or alteration in content’. It is undisputable that the said letter was not taken into consideration by the Learned Judge in Suit 491 in arriving at her decision. Since this was never relied upon at all, there is no basis to impeach the 2019 Judgment even if indeed the Friendly Loan Letter had been fraudulently procured. [32] In any case, the Plaintiffs have not pleaded or adduced any new evidence in respect of the Friendly Loan Letter nor allegations on actual fraud and based on the authority of Seruan Gemilang, that the Plaintiffs are barred from disputing the document via this Impeachment Suit. [33] In the locus classicus case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court elucidated on the employment of the summary process as stated below: - “(1) The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it 'obviously unsustainable'. 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.” “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] [34] In this case, the Plaintiffs have premised their entire claim on insinuations, assumptions and suspicions and have failed to plead and produce any new evidence to substantiate their allegations against the Defendants. As all 5 Trial Documents were within the Plaintiffs’ possession at all material times in Suit 491, it was open to them to have raised the alleged elements of fraud and or alteration of contents in the documents. This, they did not do and accordingly, based on the principles established, it is my judgment that this action is frivolous and vexatious and ought to be struck off pursuant to Order 18 Rule 19 (1)(b) of the Rules of Court 2012. [35] Further, the issues raised by the Plaintiffs in respect of the 5 Trial Documents, the shares held by Lim and whether Lim is a nominee of Dato’ Yip, have already been decided in Suit 491 with finality. The Plaintiffs have attempted to re-litigate the same issues by alleging fraud, full particulars of which have not been pleaded. As such, the claim is plainly and obviously unsustainable and ought to be struck off to prevent it from prolonging the prejudice, embarrassment suffered by Lim. [36] In fact, a simple perusal of the undisputed chronology of the litigation which began in 2017 shows persistent attempts by the Plaintiffs to pursue litigation against Lim and Dato’ Yip to defer and or avoid the execution of the 2019 Judgment and the consequential orders which now include a Final Judgment. [37] From this year alone, the Plaintiffs have filed 3 appeals from interlocutory applications which were not in their favour under Suit

The frivolity of the Plaintiffs’ claims had been highlighted by the Court in Suit 491 when Ten and Metro Setia’s application for committal against Lim was dismissed with costs of RM20,000.00 of which RM5,000.00 was to be paid by the solicitors themselves. The persistent filing of appeals to the Court of Appeal and the Impeachment Suit which is embarked without any grounds to actually prove the existence of fraud evinces the Plaintiffs attempt to take a second bite of the proverbial cherry. The matter is clearly res judicata between the parties and the Plaintiffs are barred by the trite principle of issue estoppel from instituting this action against the Defendants. Conclusion [38] In the premises, this Court is of the opinion that this is a fit and proper case to be disposed of by way of summary process. The Plaintiffs’ action is clearly and obviously unsustainable and is a blatant abuse of the process of the Court. [39] Accordingly, this Court grants the Defendants an order in terms of Enclosure 26 with costs. Dated the 22th day of December 2023 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Mr. Syed Muhd Isa @ Ismat bin Syed Muhamad for Plaintiffs

Mr. Balvinder Singh Kenth together with Ms. Sarvesvari a/p

Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1 2. Pembangunan Tanah dan Perumahan Sdn Bhd v Raja Qahaarruddin bin Raja Abdul Aziz [2020] 2 MLJ 462 3. Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346; [2001] 1 MLRA 98 4. Pan Malaysian Pools Sdn Bhd v Kwan Tat Thai & Anor and other appeals [2018] 4 MLJ 461 5. Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36

Section 44 of the Evidence Act 1950