1. ) Winn Worldwide Sdn. Bhd. & 1 Lagi v Yap Tham Pow & 1 Lagi (WA-12ANCC-76-09/2016)

YEE TUCK POH 15 (No. K/P: 670901-08-6239)

YAP THAM POW 20 (No. K/P: 611122-10-6579)

JANE CHANG LIN JIN … RESPONDEN (No.K/P: 720324-07-5750) RESPONDEN (Dalam Mahkamah Sesyen di Kuala Lumpur 25 Dalam Wilayah Persekutuan, Malaysia Guaman No.WA-B52NCC-365-04/2016 Antara 30 1. Yap Tham Pow (No.K/P: 611122-10-6579)

Jane Chang Lin Jin … Plaintif- (No.K/P: 720324-07-5750) Plaintif 35

Winn Worldwide Sdn. Bhd. (No. Syarikat: 1001636-U) (dahulunya dikenali sebagai 40

Yee Tuck Poh (No.K/P: 670901-08-6239)

Lembaga Hasil Dalam … Defendan-Negeri Malaysia Defendan) 45 2 5 GROUNDS OF DECISION [1] This is an appeal by the Appellants/Defendants against the learned Sessions Court Judge’s (‘SCJ’) decision made on 24/8/2016 in respect of the Respondents/Plaintiffs’ application in encl.19 made 10 under O.14 A of the Rules of Court 2012 (‘ROC 2012’) wherein she allowed the following paragraphs of the Amended Statement of Claim - “(a) perintah deklarasi mengisytiharkan bahawa Akuan Persetujuan bertarikh 25.02.2014 tersebut adalah satu perjanjian antara H.O.L. 15 Chain Store (Malaysia) Sdn. Bhd. dan Defendan Ketiga dan ia tidak boleh dikuatkuasakan terhadap Plaintif-Plaintif;

… 20

perintah bahawa jumlah RM656,673.69 bersama-sama kesemua faedah yang dipegang oleh peguamcara Defendan Pertama dan Kedua sebagai amanah dibayar kepada Plaintif-Plaintif dengan serta merta; 25

faedah pada kadar 5% setahun ke atas jumlah penghakiman dari tarikh perintah di sini sehingga tarikh penyelesaian penuh;

kos”. I shall adopt the manner the parties are referred to at the Sessions 30 Court. [2] Having considered the Written Submissions of Counsel for the Defendants and the Plaintiffs, I dismissed the appeal of the Defendants with costs of RM6,000.00 to be paid by the Defendants to 35 the Plaintiffs. The reasons for my decision is set below. [3] Looking at encl.19 (pp.69-76 of the ROA Vol.1), the sole question to be decided by the learned SCJ is - 3 “Samada Akuan Persetujuan bertarikh 25.02.2014 adalah satu perjanjian 5 antara H.O.L. Chain Store (Malaysia) Sdn. Bhd. dan Defendan Ke-3 dan ia tidak boleh dikuatkuasakan terhadap Plaintif-Plaintif?” “Whether the ‘Akuan Persetujuan’ dated 25.02.2014 is an agreement between H.O.L. Chain Store (Malaysia) Sdn. Bhd. and the 3rd Defendant and it cannot be enforced against the Plaintiffs?” 10 [4] In this appeal the Defendants attempted to raise the issues in paras 2 to 13 of their Written Submission. I agreed with the Plaintiffs these issues are irrelevant for the following reasons:

All issues between the Defendants and the Plaintiffs in relation 15 to the Share Sale Agreement pertaining had already been raised and decided by the learned SCJ in another Suit No.B52NCVC-31-07/2013 where an Order dated 24/7/2015 was granted as follows: “(a) permohonan Plaintif-Plaintif dalam Notis Permohonan bertarikh 02.04.2015 (Kandungan 93) di sini adalah dibenarkan;

Defendan-Defendan membayar jumlah Ringgit Malaysia Enam Ratus Lima Puluh Enam Ribu Enam Ratus Tujuh Puluh Tiga Dan Sen Enam Puluh Sembilan (RM656,673.69) bersama-sama faedah ke dalam satu akaun simpanan tetap dipegang oleh peguamcara 25 Defendan sebagai pemegang amanah sehingga perlupusan muktamad pertikaian tuntutan Lembaga Hasil Dalam Negeri terhadap H.O.L Chain Store (Malaysia) Sdn Bhd;

Plaintif-Plaintif adalah diberi kebebasan untuk mencabar Akuan 30 Persetujuan bertarikh 25hb Februari 2014 antara Defendan Ke-2 dan Lembaga Hasil Dalam Negeri;

berkenaan tuntutan balas Defendan-Defendan, Mahkamah mendapati Plaintif-Plaintif adalah bertanggungjawab ke atas 35 caruman yang perlu dibayar sepertimana dalam Klausa 5.5 Share Sale Agreement bertarikh 16.05.2012 dan Defendan Pertama adalah dibenarkan untuk mengambil tindakan perlaksanaan terhadap Plaintif-Plaintif, jika perlu, setelah perlupusan muktamad pertikaian tuntutan cukai tahun 2011 antara Lembaga Hasil Dalam 40 Negeri dan H.O.L. Chain Store (Malaysia) Sdn. Bhd; dan

tiada perintah terhadap kos”. I wish to stress there was no appeal against this Order of 24/7/2015; 45 4 5

These issues are res judicata and should not be re-litigated as held by the Supreme Court in Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783 at p.784 Held 1 and 2. 10

The Defendants’ argument that H.O.L Chain Store (Malaysia) Sdn Bhd had made full payment to LHDN was not an issue or question raised during the hearing of the O.14 A application (encl.19) in the Sessions Court and therefore could not be raised in this appeal here. I drew support from the case of Government of the State 15 of Sarawak & Anor v Chong Chieng Jen [2016] MLJU 113 which is an appeal from an O.14A application filed by the respondent/ defendant where there were 4 questions of law posed for the High Court’s determination but the appeal concerned only the 1st question of whether the appellant/1st plaintiff (State Government of Sarawak 20 and/or the 2nd appellant/2nd plaintiff (a government department and an organ of the government) have the right to sue and maintain an action for damages for defamation against the respondent /defendant. The appeal is against the decision of the High Court at Kuching which dismissed the State Government and the State 25 Financial Authority’s action for defamation by reason that although the State Government or statutory body can sue and be sued, that right does not extend to the right to sue for defamation. Abdul Rahman Sebli JCA delivering the majority judgment of the Court of Appeal stated - 30 “[90] If a litigant omits to include any question of law that is determinative of the rights of the parties and fails in his application, he cannot turn around and say that the case must nevertheless proceed to trial as the 5 court has yet to decide on the remaining issues of law that he omitted to 5 include in the O 14A application. He cannot have the best of both worlds and to approbate and reprobate. [91] In our view, since all four questions have now been answered in favour of the appellants, the claim against the respondent has been established without any further need to hear evidence from the respondent 10 nor for further arguments to be canvassed before the learned High Court judge”.

In any event I agreed with the submission of the Plaintiffs that this appeal (in WA-B52NCC-365-04/2016) should be confined only to the construction of the document of the “Akuan Persetujuan” (pp.189- 15 190 ROA Vol.1) which was the only question for the determination of the learned SCJ. In the circumstances the other issues which the Defendants are attempting to raise are irrelevant. In this regard I relied on the case of Lee Guan Par v Hotel Universal Sdn Bhd [2005] 4 MLJ 589 at 599[36] wherein Nik Hashim JCA (as 20 he then was) (delivering the judgment of the Court of Appeal) found “the learned judge had misdirected himself when he considered the hardship the appellant would have to bear if double rental was ordered against [him]” and held “the learned judge ought to have decided the issue strictly on the facts and the law and not on 25 sentiment”. Similarly here, the Court ought to focus only on the issue confronting the learned SCJ as alluded to in para 3 above. [5] Now turning to the issue at hand, I accepted the Plaintiffs’ submission that the Defendants did not - 30

dispute the said “Akuan Persetujuan” was made between H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN and the Plaintiffs were never a party thereto;

challenge the validity of the said “Akuan Persetujuan” between H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN; 35 6

deny that amount under the said “Akuan Persetujuan” was paid 5 by H.O.L Chain Store (Malaysia) Sdn Bhd not the 1st and 2nd Defendants. [6] I find there was no evidence from H.O.L Chain Store (Malaysia) Sdn Bhd to show that they entered the “Akuan Persetujuan” under 10 any threat or duress. In fact the admissions of the Defendants gleaned from the “Appellants’ Further Submissions” - “(a) the said Akuan Persetujuan dated 25.02.2014 is an agreement between HOL and LHDN; (paragraph 7 of Appellants’ Further

the said Akuan Persetujuan cannot be enforced against the Respondents (paragraph 8 of Appellants’ Further Submissions)”. confirmed that the “Akuan Persetujuan” was voluntarily intended by 20 H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN. [7] I am of the view that the issue of indemnity between the Plaintiffs and the 1st Defendant does not arise because H.O.L Chain Store (Malaysia) Sdn Bhd paid the amount to LHDN pursuant to the 25 said “Akuan Persetujuan”, not pursuant to the Share Sale Agreement between the Plaintiffs and the 1st Defendant. [8] Furthermore, the Defendants had suffered no loss because the agreed amount in the said “Akuan Persetujuan” was paid by H.O.L 30 Chain Store (Malaysia) Sdn Bhd and not the Defendants. However no action whatsoever was taken by H.O.L Chain Store (Malaysia) Sdn Bhd. 7 [9] It is important to note that the Defendants had in their Amended 5 Statement of Defence dated 2/6/2016 at para 65A admitted that the Plaintiffs were never a party to the said “Akuan Persetujuan” because LHDN only take action against the company which is H.O.L Chain Store (Malaysia) Sdn Bhd and the existing directors of the company. 10 [10] The argument of s.75 of the Income Tax Act raised by the Defendants has no relevancy here because the payment of the tax was made pursuant to the “Akuan Persetujuan” made between H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN. 15 [11] The said “Akuan Persetujuan” was never made known to the Plaintiffs until the Plaintiffs commenced Suit No.B52NCVC-31- 07/2013 in the Sessions Court. In this connection, I accepted the explanation of the learned Counsel for the Plaintiffs given in oral Reply that whilst it is true he received the e-mail dated 28/6/2013 20 together with attachment, but the Plaintiffs were never informed of the Defendants’ intention of entering into “Akuan Persetujuan” until the commencement of the Suit as the copy of “Akuan Persetujuan” received by him was an unsigned copy (p.333 ROA Vol.1) unlike the signed copy found at 190 ROA Vol.1. 25 [12] The Plaintiffs were never a party to the “Akuan Persetujuan” and were not privy to the same and therefore the “Akuan Persetujuan” cannot be enforced against the Plaintiffs. In this regard I relied on - 30

Woolley Development Sdn Bhd v Tiara Contours Construction Sdn Bhd [2015] MLJU 1288 where Nallini 8 Pathmanathan JCA (delivering the judgment of the Court of Appeal) 5 held - “[53] In the instant case, the second defendant was not party to, nor privy to the sale and purchase agreement which was concluded between the plaintiff and Cherating. As such, the plaintiff could not seek to enforce the settlement agreement against a non-party, namely the second defendant”.

(ii) Green Crescent Resources v Ching Miew Yoke & Ors. [2016] 2 MLJ 579 where her Ladyship held “[57] The doctrine of the privity of contract precludes any such statements or arrangements from becoming binding on Green Crescent, as it was never privy to, 15 nor party to the same.” Conclusion [13] For the foregoing reasons I find the learned SCJ has arrived at her findings based on the correct facts and principles of law and there 20 is no reason for this Court to intervene or disturb the decision of the learned SCJ. Hence the dismissal of the Defendants’ appeal with costs. Dated: 30/9/2017 25 SGD. (LAU BEE LAN) Judge 30 35 9 5 Counsel for the Appellants/Defendants: Encik Oh Teik Keng Messrs Oh Teik Keng & Partners Advocates & Solicitors 10 No. 24-1, Jalan 2/96A Taman Cheras Makmur 56100 Kuala Lumpur 15 Counsel for the Respondents/Plaintiffs: Encik Beh Chee Wei Messrs Beh & Co. Advocates & Solicitors 20 B-2-3, Blok B, Kuchai Exchange No. 43, Jalan Kuchai Maju 13 Kuchai Entrepreneurs Park 58200 Kuala Lumpur 25