1. ) Trillion Treasure Sdn. Bhd. v 1. ) Mammoth Empire Construction Sdn Bhd (BA-22NCvC-205-05/2024)

TRILLION TREASURE SDN BHD (No. Syarikat: 1076816-T)

ASIAH FARIHAH BINTI JEFFREY (No. K/P: 980119-14-5730) …PLAINTIF-PLAINTIF

MAMMOTH EMPIRE CONSTRUCTION SDN BHD (No. Syarikat: 536187-H)

COSMOPOLITAN AVENUE SDN BHD (No. Syarikat: 888713-V) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

The Defendants filed an application in Enclosure 8 pursuant to Order 18 rule 19(1)(a), (b), or (d), and/or Order 92 rule 4 of the 28/07/2025 09:28:40 BA-22NCvC-205-05/2024 Kand. 36 S/N sa6aNUhtxEKBVBmLhimVlg Rules of Court 2012 (ROC 2012) to strike out the Plaintiffs’ action against them.

The hearing of Enclosure 8 was scheduled for 15 April 2025. At the conclusion of oral submissions, learned counsel for the Plaintiffs requested time to obtain instructions from their clients on whether to withdraw the action in light of the objections raised by the Defendants.

On 6 May 2025, learned counsel for the Plaintiffs notified the Court that they had received instructions to withdraw the suit with liberty to file afresh and with reasonable costs.

The Defendants objected to the withdrawal being granted with liberty to file afresh, arguing that the action ought to be withdrawn without such liberty.

After considering further oral submissions, this Court allowed the Plaintiffs to withdraw their suit with liberty to file afresh and awarded costs of RM10,000.00 to the Defendants.

Dissatisfied with this decision, the Defendants filed an appeal against the order granting liberty to the Plaintiffs to file afresh.

The reasons for my decision are set out below. S/N sa6aNUhtxEKBVBmLhimVlg THE PLAINTIFFS’ CLAIM The Plaintiffs’ case is presented as follows.

The Plaintiffs claimed that between 2016 and 2018, the First Plaintiff, together with Trillion Treasure Group Sdn Bhd (TTG), started its dealings with the First Defendant, and engaged in a series of business transactions with the First Defendant.

These transactions involved, among others, the provision of subcontracting services for various projects (the Works/Services) and the supply of construction materials to the First Defendant. Although the First Plaintiff and TTG are separate legal entities, both companies were, at all material times, managed and operated by the same individual, Mr. Amin Eshtiagh Hamid, who was the Director of both companies.

The Plaintiffs stated that there was a mutual understanding and arrangement between the First Plaintiff, TTG, and the First Defendant regarding the settlement of payments. According to the Plaintiffs, the amounts owed for subcontracting services and the supply of materials would primarily be settled through a “contra property/payment” arrangement. Under this arrangement, the sums owed by the First Defendant would be set off, wholly or partly, by transferring properties instead of making direct monetary payment. S/N sa6aNUhtxEKBVBmLhimVlg

As a result of this arrangement, the First Defendant never made immediate payments to the First Plaintiff or TTG upon completion of the Works/Services or delivery of materials. Instead, the First Plaintiff and TTG relied at all material times on representations, whether made in writing, orally, or through conduct, by the First Defendant that all outstanding sums would be discharged via the agreed “contra property/payment.”

Furthermore, all parties agreed that the total amounts payable by the First Defendant for works completed and materials supplied, whether by the First Plaintiff or TTG, would be accumulated and recorded under the First Plaintiff’s account. This account would then serve as the basis for any set-off under the contra arrangement. According to the records of the First Plaintiff’s account, the total sum owed by the First Defendant for services rendered and materials supplied by both the First Plaintiff and TTG was RM3,643,828.66.

In accordance with the agreed contra arrangement, two specific properties were identified and included in the offsetting process, namely:

One (1) unit identified as Parcel No. A-P10-003 (Empire Residence), and

One (1) unit identified as Parcel No. E-43-03 (Empire City). S/N sa6aNUhtxEKBVBmLhimVlg

Regarding the “contra property/payment” arrangement for one unit identified as Empire Residence, this property was owned by the First Defendant and was originally intended to be sold to the First Plaintiff. According to the records, the billing amount for this unit was RM1,297,229.00 [Exhibit G, Enclosure. 10].

However, due to the outstanding sums owed by the First Defendant to the First Plaintiff and/or TTG regarding the supply of construction materials by a third party, Engareh Sdn Bhd, the First Plaintiff agreed to assign and transfer its beneficial interest in the said property, Empire Residence, to Engareh.

Subsequently, the First Defendant and/or its nominee, Mammoth Empire Land Sdn Bhd, entered into a Sale and Purchase Agreement dated 28 September 2017, for the sale of the said unit to Engareh [Exhibit CJY-5, Enclosure 9].

Regarding the unit known as Empire City, which is the main focus of this case, the property was similarly intended, proposed, and offered by the Defendants for sale to the First Plaintiff. The detailed terms of the proposed sale for Empire City were as follows:

Purchase Price: RM1,531,000.00

Rebate: RM105,639.00

Net Purchase Price: RM1,425,361.00 S/N sa6aNUhtxEKBVBmLhimVlg

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That the First Plaintiff would appoint TTG to purchase Empire City.

That the First Plaintiff authorised the First Defendant to deduct a sum of RM1,425,361.00 from the First Plaintiff’s account as payment of the purchase price for the said parcel to the Second Defendant.

The Defendants subsequently confirmed their acceptance of the above terms in writing through a letter dated 6 July 2017 and an Interoffice Memorandum dated 25 September 2017. [Exhibits H and I, Enclosure 10].

TTG and the Second Plaintiff then signed the Sale and Purchase Agreement dated 23 October 2017 for the sale of the Empire City unit [Exhibit CJY-1, Enclosure. 9].

Thereafter, TTG assigned all of its interests and beneficial rights in the Empire City to the Second Plaintiff through a Sale and Purchase Agreement dated 7 March 2022. S/N sa6aNUhtxEKBVBmLhimVlg

This assignment of TTG’s beneficial interest to the Second Plaintiff was formally communicated through a letter dated 16 March 2022 issued by the Second Plaintiff’s solicitors at the time, Messrs. Sidek Teoh Wong & Dennis. Prior to completing the assignment between TTG and the Second Plaintiff, the solicitors requested confirmation from the Second Defendant on the following matters [Exhibit L, Enclosure 10]:

Whether TTG was the beneficial owner of the said property.

Whether the full purchase price has been paid.

Whether any outstanding sums were still owed by the Plaintiff.

Whether the Second Defendant has any objection to the proposed transaction between TTG and the Second Plaintiff.

In response, the Second Defendant, through a letter dated 15 April 2022, confirmed the following [Exhibit M, Enclosure 10].

That it had no objection to the assignment of the property by TTG to the Second Plaintiff.

That TTG was the current purchaser and beneficial owner of the said parcel. S/N sa6aNUhtxEKBVBmLhimVlg

That the purchase price for the said parcel had been fully paid by TTG.

Following the above confirmation, the Second Plaintiff proceeded to carry out the assignment of Empire City from TTG [Exhibit R Enclosure 10].

However, the Second Defendant later took the following steps:

By a letter dated 30 September 2022, it was alleged that the assignor (TTG) and the assignee (Second Plaintiff) had failed to comply with the terms or conditions stated in the letter dated 15 April 2022 [Exhibit N Enclosure 10].

By invoice dated 4 October 2022, claimed that the balance purchase price of RM1,377,900.00 remained unpaid [Exhibit O Enclosure 10].

By letter dated 5 October 2022, purportedly terminated or cancelled the Sale and Purchase Agreement between TTG and the Second Defendant [Exhibit P Enclosure 10].

Therefore, the Plaintiffs pray for the following reliefs in this civil suit:

A declaration that the First Plaintiff/TTG has fully paid the purchase price for the acquisition of one unit, identified as Parcel No.: E-43-03, situated under master titles S/N sa6aNUhtxEKBVBmLhimVlg PN95202, Lot 86342 and PN108871, Lot 72082, Mukim Sungai Buloh, District of Petaling, State of Selangor (Empire City).

Following the declaration in paragraph (a), a declaration that the Second Plaintiff is the current beneficial owner of the parcel identified as Parcel No.: E-43-03, situated under master titles PN95202, Lot 86342, and PN108871, Lot 72082, Mukim Sungai Buloh, District of Petaling, State of Selangor (the said parcel), based on the First Plaintiff’s Letter dated 10 February 2020 and the Sale and Purchase Agreement dated 7 March 2020.

Consequent upon the declarations in paragraphs (a) and

(b), a declaration that the termination of the Sale and Purchase Agreement dated 23 October 2017 by way of the emails/letters dated 4 October 2022 and 7 November 2022 is invalid, unenforceable, and constitutes a breach of the terms of the Agreement by the Defendants.

An order that the Defendants, jointly and/or severally, be directed to make the following outstanding payments to the Plaintiffs: i. RM1,425,361.00 to the Second Plaintiff, being the purchase price for the Empire City parcel; S/N sa6aNUhtxEKBVBmLhimVlg ii. RM479,531.81 to the First Plaintiff, being the outstanding and due balance for services/works performed and construction materials supplied by the First Plaintiff/TTG to the First Defendant. THE DEFENDANTS’ GROUNDS FOR THE STRIKING OUT APPLICATION

The Defendants sought to strike out the Plaintiffs’ action pursuant to Order 18 rule 19(1)(a), (b), and/or (d) and/or Order 92 rule 4 of the ROC 2012. The application is premised on the following grounds:

The Plaintiffs’ entire claim pertains to a single unit of property known as E-43-03, Empire City, which was developed and sold by the Second Defendant to TTG under a Sale and Purchase Agreement dated 23 October 2017 (the Principal SPA), and the subsequent termination of that agreement.

The Plaintiffs lack the requisite locus standi to bring this action against the Defendants. The Empire City was sold to TTG, and under the “proper plaintiff rule,” any dispute arising from the Principal SPA must be pursued by TTG as the purchaser. The Plaintiffs are not privy to the Principal SPA and therefore have no legal standing to enforce or challenge any rights under it. S/N sa6aNUhtxEKBVBmLhimVlg

The Defendants have no legal or contractual relationship with the Second Plaintiff. The Second Plaintiff has no cause of action and no legal right to initiate or sustain this claim against the Defendants.

Additionally, the Defendants challenge the authority of Messrs. Sharif & Khoo to represent the First Plaintiff (and by extension, TTG) in this action. The Defendants argued that:

No authorisation or consent was given by the director of the First Plaintiff to appoint Messrs. Sharif & Khoo as solicitors. Consequently, the action initiated by the First Plaintiff is incompetent and ought to be struck out.

Only the duly appointed director of the First Plaintiff has the authority to act on its behalf and to appoint solicitors. A search with the Companies Commission of Malaysia shows that Dr. Saadiah binti Sulaiman is not a director of the First Plaintiff. She therefore lacks the authority to act or to appoint solicitors on behalf of the First Plaintiff. Furthermore, the Defendants have never dealt with Dr. Saadiah at any material time.

The Defendants further challenge the validity of the Affidavit in Reply (Enclosure 10) affirmed by Dr. Saadiah binti Sulaiman on the grounds that Dr. Saadiah is not a director of the First Plaintiff and was never authorised by the First Plaintiff to affirm any S/N sa6aNUhtxEKBVBmLhimVlg affidavit on its behalf. Her affirmation of the affidavit is therefore without authority and procedurally improper.

In light of the above, the Plaintiffs’ claim is unsustainable, frivolous, vexatious, and an abuse of the Court's process, and should be struck out in its entirety.

The only issue for this Court to determine is whether the Plaintiffs in this case can withdraw their suit against the Defendants with liberty to file afresh.

32.

The learned counsel for the Defendants, in objecting to the Plaintiffs’ application to withdraw their action with liberty to file afresh, presented their arguments based on several decided cases.

The Court of Appeal in the case of Punj Lloyd Oil & Gas (M) Sdn Bhd v Etiqa Insurance Bhd & Ors [2016] 2 MLJ 676 held that: “(1) The decision to strike off the suit or claim without liberty to file afresh upon withdrawal of the suit by the appellant S/N sa6aNUhtxEKBVBmLhimVlg was an exercise of discretion by the learned judge. Under O 21 of the Rules of Court 2012 (‘the ROC’) a writ action may be discontinued or withdrawn without the leave of the court against any or all defendants at any time not later than 14 days after the service of the last defence. Since the trial had commenced thus pursuant to O 21 r 3(1) the court may grant the leave with or without conditions. Order 21 r 3(2) stated that application under this rule shall be made by notice of application. There was no specific form of such notice that must be followed. A simple letter to the court and the other party of an intention to withdraw would suffice (see paras 14-16).” [emphasis added]

The principles to be considered by a Judge in deciding such an application were articulated in the case of Overseas Union Finance Ltd v Lim Joo Chong [1971] 1 LNS 101, where Raja Azlan Shah J (as His Royal Highness then was), stated that: "However, it is at my discretion whether I should allow a discontinuance. Guidelines to the exercise of discretion can be found in the S/N sa6aNUhtxEKBVBmLhimVlg Annual Practice 1963 at p 593 under the heading Before Judgment which reads:- "Leave may be refused to a plaintiff to discontinue the action, if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him." If the applicant here is dominus litis then leave to discontinue may be granted. If he is not, then it is unlikely that I would grant him leave to discontinue. I do not think that the applicant is wholly dominus litis. He cannot dispose of the case as he thinks fit or allow it to be dismissed or let judgment go by default. The parties have come to a stage where the respondent/chargor has gained an upper hand by an advantage in that he could find flaws in the applicant/chargee's allegation namely the wrong dates in the memorandum etc. and the fact that the reason for wanting a discontinuance is not a very strong one. The respondent/chargor is not to be deprived of these advantages which have made him a well-matched adversary in the arena. S/N sa6aNUhtxEKBVBmLhimVlg Having considered all these points I am of the opinion that the application to discontinue should be dismissed." [emphasis added]

In the case of Lim Lek Yan @ Lim Teck Yam v Yayasan Melaka [2013] 1 CLJ 1081, the High Court Judge referred to the English Court of Appeal case of Fox v Star Newspaper Co [1898] 1 QB 636, where Chitty LJ held as follows: “The principle of the rule is plain. It is that after the proceedings have reached a certain stage, the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term "discontinuance" or any mere technical sense of words. The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the S/N sa6aNUhtxEKBVBmLhimVlg right of bringing another action for the same subject matter.”

His Lordship Lim Beng Choon in Hanhyo Sdn Bhd v. Marplan Sdn Bhd & Ors [1991] 3 CLJ 1783; [1991] 2 CLJ (Rep) 684 succinctly stated the legal position as follows at p. 693: “The principles that can be extracted from the aforementioned cases are that the Court would not compel a plaintiff to continue his action against a defendant if he does not want to do so provided no injustice is caused to the defendant. Injustice would be caused to the defendant if:

the discontinuance was made with ulterior motive to obtain a collateral advantage as in the case of Castanho v. Brown & Root Ltd;

the discontinuance was not made bona fide by the plaintiff but it was made in order to obtain an advantage to which he has no right to retain since he has ceased to be dominis litis as the defendant has a perfectly good defence - see Overseas Union Finance Ltd v. Lim Joo Chong [1971] 1 LNS 101 case; S/N sa6aNUhtxEKBVBmLhimVlg

by the discontinuance of the action the defendant would be deprived of an advantage which he has already gained in the litigation - see Covell Matthews & Partners v. French Wools Ltd. case.” [emphasis added]

The relevant considerations were similarly outlined by the Court of Appeal in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors [2017] CLJU 527, where the Court held: “23. Before granting the order for discontinuance of an action, the court must be satisfied that: i) if a defendant is dominus litis, the general rule is to refuse leave to discontinue (see Overseas Union Finance Ltd v. Lim Joo Chong [1971] CLJU 101; [1971] 1 LNS 101; [1971] 2 MLJ 124); ii) the case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and S/N sa6aNUhtxEKBVBmLhimVlg circumstances of the case (see Fox v. Star Newspaper Company [1898] 1 QB 636); iii) the plaintiff may have gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue (O'Neal v. Mann [2000] FCA 1680); iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance; v) it will not prejudice the opponent to the application or take away from him any advantage to which he is fairly and reasonably entitled.

In summary, the discretion to allow the application to discontinue an action and the discretion to impose the terms accompanying it, depend very much on the facts and circumstances of each case.” S/N sa6aNUhtxEKBVBmLhimVlg

In Majlis Peguam Malaysia & Ors v Raja Segaran a/l S Krishnan [2002] 3 MLJ 155, Gopal Sri Ram JCA (as he then was) held at p 161 as follows: “What comes across clearly from the authorities that they have referred to is the fact that a judge exercising his power under O 21 r 3 which permits discontinuance has a wide discretion. But it is not an unprincipled discretion. There are important guidelines that act as beacons, guiding him through those blurred areas of which we spoke a moment ago. One of these guidelines is that if a defendant is dominus litis, the general rule is to refuse leave to discontinue. See Overseas Union

Finance Ltd v Lim Joo Chong [1971] 2 MLJ Another guideline is that where the case is at a very advanced stage, care should be taken not to permit discontinuance. And what constitutes an advanced stage depends on the facts and circumstances of each case as illustrated by the case of Fox v Star Newspaper Company [1898] 1 QB 636. Another consideration; yet another guideline; which a judge ought to bear in mind is any interim or S/N sa6aNUhtxEKBVBmLhimVlg interlocutory advantage that the plaintiff may have gained between the date of issue of the writ and the point of time which he seeks to discontinue: O'Neal v Mann [2000] FCA 1680. The upshot is that it all depends on the facts and circumstances of each case bearing in mind that one ought not to depart from the outer parameters established by the guidelines to which we have referred.” [emphasis added]

Drawing from the principles enunciated in the authorities referred to above, the factors to be considered by this Court are as follows:

Is the case at an advanced stage?

Whether the Plaintiffs are Dominus Litis?

Whether the Plaintiffs have obtained any interlocutory orders to their benefit, and the timing of the withdrawal application in relation thereto?

Whether the Defendant would suffer any irreparable prejudice as a result? S/N sa6aNUhtxEKBVBmLhimVlg

What orders, in the interest of justice, should be made even if the withdrawal is to be permitted?

Based on the facts and circumstances of this case, I allowed the Plaintiffs to withdraw their action against the Defendants with liberty to file afresh based on the following reasons:

It has not been demonstrated that the Plaintiffs’ discontinuance was made in bad faith or with the intention of obtaining an unfair advantage to which the Plaintiffs are not entitled.

The case is not at an advanced stage. The Defendants have filed an application to strike out the Plaintiffs’ action, primarily on the grounds that the Plaintiffs lack the requisite locus standi to bring the action against the Defendants, and that Dr. Saadiah binti Sulaiman is not a director of the First Plaintiff and therefore lacks the authority to act for or appoint solicitors on behalf of the First Plaintiff. Before the application was fixed for decision, the Plaintiffs informed the Court that they wished to obtain further instructions from their clients. At the subsequent case management, the Plaintiffs notified the Court of their intention to withdraw the action, with liberty to file afresh. At this point, the Court is of the view that the Plaintiffs S/N sa6aNUhtxEKBVBmLhimVlg remain dominus litis, as no decision has been made in favour of the Defendants. It would therefore be premature and incorrect to assume that the Defendants will succeed in their striking out application solely based on the present stage of the proceedings. Furthermore, the matter has not been set down for trial, nor has the Plaintiffs’ case been heard on its merits. In these circumstances, it would be inappropriate to deny the Plaintiffs their right to have their claim determined substantively.

The Plaintiffs have not secured any interlocutory orders to their benefit in this case.

The Defendants have not demonstrated that they would suffer any irreparable prejudice from the withdrawal.

Therefore, based on the above reasons, I am of the view that, in the interest of justice, the Plaintiffs should be allowed to withdraw their action with liberty to file afresh.

This Court further ordered the Plaintiffs to pay costs to the Defendants as compensation for discontinuing the action.

For the reasons set out above, I accordingly ordered that the Plaintiffs’ action be struck out with liberty to file afresh. The Plaintiffs are to pay the Defendants the costs of RM10,000.00. S/N sa6aNUhtxEKBVBmLhimVlg Dated 25 July 2025 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiffs : Nurliyana binti Azis (Messrs Sharif & Khoo) For the Defendants: Alvin Lai Kok Wing & Cheryl Leong Kit Yee (Messrs Justin Voon Chooi & Wing) S/N sa6aNUhtxEKBVBmLhimVlg