Ady Marketing Sdn. Bhd. v 1. ) All Ways Builder Sdn. Bhd. (WA-22NCC-632-12/2020)

ALL WAYS BUILDER SDN. BHD. [Company No.: 201601041757/1212699-X]

EURO HOLDINGS BERHAD [Company No.: 200401008055 / 646559-T]

WONG KIN SING [Identity Card No.: 700603-06-5223]

CHIA CHIW HOON [Identity Card No.: 781123-10-5246] …DEFENDANTS (ORIGINAL CLAIM) BETWEEN EURO HOLDINGS BERHAD [Company No.: 200401008055 (646559-T)] …PLAINTIFF

ADY MARKETING SDN. BHD. [Company No.: 200601014032 (733783-X)]

CHOONG YUEN KEONG @ TONG YUEN KEONG [Identity Card No.: 590818-10-6331]

TONG YUN MONG [Identity Card No.: 550321-10-5089]

ALL WAYS BUILDER SDN. BHD. [Company No.: 201601041757 / 1212699 –X]

M SOUTH MARKETING SDN. BHD. [Company No.: 121955-P …DEFENDANTS (Counterclaim)

This suit revolves along claims by ADY Marketing Sdn. Bhd. against All Ways Builders Sdn. Bhd. And Euro Holdings for failure to make payment over building material supplied to Euroland & Development (Euroland), the developer of a project known as Damai Vista. Euroland is a subsidiary of Euro Holdings Berhad (Euro Holdings).

Euro Holdings Berhad counterclaimed by pleading conspiracy involving All Ways, Chia Chiw Hoon (All Ways’s director), Wong Kin Sing (Plaintiff’s former director), Choong Yuen Keong @ Tong Yuen Keong, Tong Yun Mong, Wong Kin Sing (Euro Holdings’ former director), and Tong Kah Hoe (Euro Group Chief Operating Officer in the counterclaim) concerning the Damai Vista Project.

I allowed ADY’s claim and dismissed the counterclaim, which led to the current appeal by Euro Holdings Berhad.

This suit was heard together with: a) Civil suit no. WA-22NCC-137-03/2021 (‘Suit 137’); b) Civil suit no. WA-22NCC-246-06/2020 (‘Suit 246’); c) Civil suit no.: WA-22NCC-550-12/2021 (‘Suit 550’)

For ease of reference, parties in these suits will be referred as follows: a) ADY Marketing Sdn. Bhd. : ADY b) M South Marketing Sdn. Bhd. : M South c) Euroland & Development Sdn. Bhd. : Euroland d) Euro Holdings Berhad : Euro Holdings e) Choong Yuen Keong @ Tong Yuen Keong : CYK f) Tong Yun Mong : TYM g) All Ways Builder Sdn. Bhd. : All Ways h) Wong Kin Sing : WKS i) Chia Chiw Hoon

The issues for determination:

Whether ADY has proven the claim for goods and services supplied to All Ways?

Whether the Defendants are liable for the guarantee provided vide Letter of Guarantee dated 8.8.2017?

Whether settlement by Euroland and its withdrawal of the counterclaim against the Defendants (by way of a consent judgment on 22.11.2023) impact Euro Holdings’s ongoing counterclaim against the Defendants.

Whether the Defendants (counterclaim) have conspired jointly to defraud Euro Holdings.

Euroland is a subsidiary of Euro Holdings (which is a public listed company) and the developer of a condominium known as “Damai Vista”. All Ways was the main contractor for the Damai Vista Project.

A letter of guarantee and indemnity dated 08.08.2017 signed by CYK on behalf of Euro Holding (CYK was authorised by a board resolution dated 08.08.2017 – CYK and TYM among the directors) and had agreed to guarantee as principal debtor and guarantor.

WKS and CCH had signed a guarantee dated 04.12.2017 in consideration of ADY supplying goods or providing credit facilities in certain amount and for a period deemed reasonable by ADY to All Ways at the request of WKS and CCH.

By an order of the High Court of Malaya in Johor Bahru dated 25.07.2019 (Original Suit No.: JA-24NCC-2-01/2019), the Court had ordered that All Ways, CCH, Khoo Boon Chew and Wong Say Min to release and/or cause to be released WKS from all personal guarantees entered into for the benefit and/or use of All Ways.

ADY claims against the Defendants: 1) All Ways as the main contractor 2) Euro Holdings as the corporate guarantor (based on letter of guarantee and indemnity dated 8.8.2017 and 1.11.2018 amongst others, indemnifying ADY on behalf of All Ways as consideration for the supply of goods and services and giving credit to All Ways for the Damai Vista project 3) WKS in his capacity as a personal guarantor and director of All Ways (at that time) for the materials supplied for the Damai Vista Project, based on the invoices as early as dated 7/8/2018 until 24/7/2019. 4) CCW as All Ways personal guarantor and director

All Ways was wound up on 15.2.2024, after the suits were filed.

On 22.11.2023, Consent Judgment was recorded between ADY and Euroland, among which the terms agreed upon are as follows:

Euroland & Development Sdn Bhd mengakui penerimaan penghantarserahan barangan-barangan oleh ADY Marketing Sdn Bhd sepertimana yang dituntut dan Euroland & Development Sdn Bhd mengakui tuntutan ADY Marketing Sdn Bhd.

Euroland & Development Sdn Bhd akan menanggung baki jumlah Hutang tersebut sebanyak RM 1, 425, 727.91 yang melebihi had jaminan oleh Euro Holdings Berhad setakat 31.10.2023 dalam tempoh masa tiga puluh (30) hari daripada tarikh Penghakiman Persetujuan.

Euroland & Development Sdn Bhd mengakui tiada sebarang konspirasi dan/ atau penipuan yang dilakukan oleh ADY Marketing Sdn Bhd dan M South Marketing Sdn Bhd

Euro Holdings pleaded conspiracy between ADY and CYK, TYM, All Ways and M South (referred to as “conspirators”) to defraud Euro Holdings by way of:

increasing the prices of the goods supplied for the project;

making improper payment with the intention to affect and/or injure Euro Holdings;

ADY issuing quotation which contains a lower price of goods even though the specifications and quantity of the goods were the same

Causing Euro Holdings to issue letter of guarantee dated 8.8.2017 which was only signed by CYK WKS Defence & Third Party Claim

WKS only involved in Suit 632 and Suit 550. WKS has sought contribution and/or indemnity against All Ways, Euro Holdings and CCW under O. 16 r. 8 Rules of Court 2012

WKS resigned as director for All Ways since 1/6/2018 and since then, WKS was not involved in All Ways’ affairs.

WKS has been released from the Personal Guarantee via Johor Bahru High Court Originating Summons No. JA 24NCC-2-01/2019 Order dated 25/7/2019, wherein ADY Marketing has been notified of the Order via notice dated 4/9/2019. Any debt owing to ADY shall be paid by Euro Holdings.

WKS is not a party in Counterclaim of this Suit by Euro Holdings, related to the issue of conspiracy.

The allegation of conspiracy against CCH is not sustainable and not proven. The consent judgment determined the finality of all claims and the issue of conspiracy. It is res judicata. Analysis and Findings I. WHETHER ADY HAS PROVEN THE CLAIM FOR GOODS AND

The fundamental question before this Court is whether ADY has discharged its burden of proving that goods and services were actually supplied to All Ways Builder for the Damai Vista Project. After careful examination of the evidence, I find that ADY has successfully proven its claim on the balance of probabilities.

The documentary evidence supporting ADY's claim is substantial and compelling. ADY issued quotation dated 8.12.2017 for RM1,122,412.93, followed by a revised quotation dated 22.12.2017 for RM1,429,590.20, with the difference adequately explained. Purchase orders from All Ways accepting ADY's supplies were properly executed. Multiple delivery orders spanning from 2018 to 2019 bear acknowledgment stamps and signatures from site personnel. The orders show sequential numbering and proper dating establishing a chronological supply pattern. No evidence of fabrication or tampering with original delivery orders has been presented. The invoices relevant for this Suit are as tabulated as follows: Invoices and debit notes which had been submitted to All Ways and Euro for the outstanding payment of the goods supplied for the Damai Vista Project: Invoice (Exhibit P11)

1804298 12.04.2018 41 17,977-78 2. 1804299 20.04.2018 43 35,450-66 3. 1810180 18.10.2018 46 11,400-00 4. 1810181 19.10.2018 48 11,400-00 5. 1811330 24.11.2018 50 8,960-00 6. 1811326 30.11.2018 53 17,280-00 7. 1812092 05.12.2018 63 10,600-00 8. 1812208 05.12.2018 65 1,920-00 9. 1812282 05.12.2018 67 2,200-00 10. 1812094 07.12.2018 69 10,600-00 11. 1812276 07.12.2018 71 3,400-00 12. 1812380 13.12.2018 73 7,975-00 13. 1812402 13.12.2018 75 4,590-00 14. 1812389 28.12.2018 77 7,975-00 15. 1812453 29.12.2018 79 4,359-86

1812454 31.12.2018 83 2,213-32 17. 1901505 01.01.2019 85 2,383-68 18. 1901373 02.01.2019 88 9,430-00 19. 1901289 03.01.2019 90 1,814-40 20. 1901374 03.01.2019 92 2,070-00 21. 1901506 04.01.2019 94 8,231-04 22. 1901507 05.01.2019 109 9,908-92 23. 1901288 09.01.2019 128 3,500-00 24. 1901261 10.01.2019 130 11,400-00 25. 1901508 15.01.2019 132 5,688-00 26. 1901509 15.01.2019 143 13,756-13 27. 1902264 16.02.2019 170 25,920-00 28. 1902265 20.02.2019 172 25,920-00 29. 1902266 22.02.2019 174 25,920-00 30. 1902267 25.02.2019 176 25,920-00 31. 1902268 26.02.2019 178 25,920-00 32. 1902178 27.02.2019 180 49,415-24 33. 1902269 27.02.2019 182 19,440-00 34. 1904276 20.04.2019 184 13,140-00 35. 1904343 22.04.2019 186 7,475-00 36. 1904274 25.04.2019 188 12,000-00 37. 1904277 26.04.2019 190 9,300-00 38. 1905185 06.05.2019 192 12,800-00 39. 1905162 15.05.2019 194 2,460-00 40. 1909424 01.09.2019 196 11,340-00 Total outstanding principal amount as at 16.09.2019 493,634-03 Debit Note (Exhibit P13)

DN-A12-1804 30.04.2018 198 15,121-61 2.

DN-A12-1806 30.06.2018 Plaintiff's Additional Bundle of Documents (Encl. 226 page 3) (NOP Volume 1 page 331) 13,812-94 4. DN-A12-1807 31.07.2018 200 11,871-00 5. DN-A12-1808 31.08.2018 201 11,518-17 6. DN-A12-1809 30.09.2018 202 10,475-93 7. DN-A12-1810 31.10.2018 203 8,583-92 8. DN-A12-1811 30.11.2018 204 7,447-98 9. DN-A12-1812 31.12.2018 205 6,364-74 10. DN-A12-1901 31.01.2019 206 5,920-91 11. DN-A12-1902 28.02.2019 207 2,433-40 12. DN-A12-1903 31.03.2019 208 3,095-27 13. DN-A12-1904 30.04.2019 209 2,884-41 14. DN-A12-1905 31.05.2019 210 3,462-41 15. DN-A12-1906 30.06.2019 211 6,286-77 16. DN-A12-1907 31.07.2019 212 6,496-33 17.

16.

09.2019 214 3,805-50 Total outstanding interest as at 16.09.2019 137,746-74 Total outstanding as at 16.09.2019 631, 380-77 Debit Note (Exhibit P14)

1.

DN-A12-1909 17.09.2019 –

09.2019 214 3,329-81

DN-A12-1910 31.10.2019 215 7,373-31 3. DN-A12-1911 30.11.2019 216 7,135-31 4. DN-A12-1912 31.12.2019 217 7,546-51 5. DN-A12-2001 31.01.2020 218 7,546-51 6. DN-A12-2002 29.02.2020 219 7,059-64 7. DN-A12-2003 31.03.2020 220 7,546-51 8. DN-A12-2004 30.04.2020 Plaintiff's Additional Bundle of Documents (Encl. 226 page 4) (NOP Volume 1 page 331) 7,303-08 9. DN-A12-2005 31.05.2020 221 7,546-51 Total outstanding interest from 17.09.2019 to 31.05.2020 62,387-03

The tax invoices are properly formatted in compliance with statutory requirements, showing sequential invoice numbering that demonstrates systematic business operations. The invoices correspond directly to delivery orders and quantities supplied, with standard 30-day payment terms clearly specified. Monthly debit notes for interest charges on overdue payments and statements of account were sent regularly to All Ways and Euro Holdings, demonstrating an ongoing commercial relationship and acknowledgment of debt.

Reminder letters and notification letter together with ADY's account statement was given by ADY regarding the outstanding amount of RM 686, 221.29 which was acknowledged by All Ways and received by Vincent Khoo Boo Chew.

The oral evidence from ADY's witnesses is credible and consistent. PW1 Siow Chee Keong, as Director of ADY, provided detailed testimony about the supply arrangements and explained the business relationship with All Ways and the guarantees from Euro Holdings. His explanation of the delivery process and subsequent signature collection was reasonable and aligned with industry practice. Under cross-examination, he maintained consistency and did not attempt to evade difficult questions. His admission that signatures were sometimes obtained after delivery actually enhances his credibility as it demonstrates honesty rather than concealment.

PW3 Lee Poh Kin, as Accounts Manager, testified comprehensively about the billing and collection process and explained standard procedures for handling customer objections. She crucially testified that throughout the entire supply period, neither All Ways nor Euro Holdings raised any objections to the invoices or delivery orders. Her testimony about payment collection efforts demonstrates genuine commercial transactions rather than fabricated claims.

Significantly, the Defendants' own witnesses have made admissions that support ADY's claim. PW1 Khoo Boon Chew, representing All Ways, made crucial admissions in his cross-examination testimony. When asked whether the project was completed because ADY and M South's supplies were complete, he confirmed that for their orders with ADY and M South, everything was indeed complete, with all orders fulfilled and fully received, and no outstanding orders remaining. This admission confirms that ADY's supplies were complete and fully received, that all orders were fulfilled without shortfall, and that no outstanding delivery issues remained.

A critical factor supporting ADY's case is the complete absence of any contemporary objections from the Defendants. Despite alleging various deficiencies, the Defendants never rejected any deliveries at the time of supply. PW3 testified that standard procedures existed for handling disputes, yet no formal objections were ever raised. All Ways continued to accept deliveries over an extended period, which is inconsistent with any claim of non-delivery or defective supplies. Euro Holdings made payments in 2017 and 2018, demonstrating acceptance of the commercial arrangement.

The successful completion of the Damai Vista Project provides compelling circumstantial evidence. The Conditional Certificate of Completion was issued on 3.2.2020, and the residential units were delivered to purchasers. The building materials supplied by ADY were incorporated into the completed structure, and no evidence suggests the materials were unused or wasted.

The evidence establishes a clear and verifiable supply chain. PW3 testified about ADY's procurement process from manufacturers. Delivery orders and invoices track the movement of goods from ADY to the project site. Acknowledged delivery orders confirm receipt by authorized site personnel. Regular billing and statement cycles demonstrate an ongoing commercial relationship.

The Court must consider the commercial realities of the construction industry. ADY operates as a legitimate trading house, which is a common business model in Malaysia's construction industry. Large projects typically involve multiple material suppliers, explaining the parallel supplies by M South. The guarantee system used is standard commercial practice for managing credit risk. The supply period aligns with the construction timeline and project completion.

While the Defendants have raised various challenges to ADY's evidence, these do not undermine the fundamental proof of supply. The timing of obtaining signatures on delivery orders does not negate the fact of delivery and acceptance. Minor formatting differences do not invalidate substantive commercial transactions. Commercial negotiations and price adjustments are normal business practices.

The evidence establishes not only that supplies were made but also the quantum claimed. Each invoice specifies quantities, descriptions, and unit prices. Delivery orders correspond to invoiced quantities. Despite extensive cross-examination, no credible challenge was made to the quantities claimed. The pricing appears consistent with market rates for building materials during the relevant period.

In determining whether ADY has proven its claim, I apply the civil standard of proof on the balance of probabilities. The evidence need not be beyond reasonable doubt, but must be more likely than not to be true. Considering the totality of evidence, including the comprehensive documentary trail, credible witness testimony, admissions by Defendants' witnesses, absence of contemporary objections, successful project completion, and commercial reasonableness of the arrangement, I am satisfied that ADY has discharged its burden of proving that goods and services were supplied to All Ways for the Damai Vista Project in the quantities and amounts claimed.

The evidence demonstrates that the goods were not only delivered but also acknowledged and accepted. PW3 Lee Poh Kin testified that Euroland never objected to or denied the invoices, delivery orders, or debit notes throughout the entire period of supply. The standard procedure for handling objections was in place, yet no objections were ever raised. Payments were made by Euro Holdings in 2017 and 2018, demonstrating acceptance of the commercial arrangement. II. WHETHER THE DEFENDANTS ARE LIABLE FOR

1.

A central issue in these proceedings is whether the Defendants, particularly Euro Holdings, are liable under the corporate guarantees dated 8.8.2017 and 1.11.2018. After careful analysis of the guarantee documents, applicable law, and evidence presented, I find that the guarantees are valid, enforceable, and the conditions precedent have been satisfied.

The two corporate guarantees in question are clear and unambiguous in their terms. The Letter of Guarantee dated 8.8.2017 provides that the guarantee and indemnity shall be a continuing guarantee for the whole debt up to the extent of RM1,000,000.00, covering only goods and services delivered to the site and to be used for the project mentioned above, with the condition that all delivery orders must be signed off by Euroland & Development Sdn Bhd's site manager or site supervisor or any authorized site personnel and stamped with Euroland & Development Sdn Bhd's company stamp.

The Letter of Guarantee dated 1.11.2018 contains similar terms but extends the guarantee amount to RM1,416,753.60, maintaining the same conditions regarding delivery to site, use for the project, and the requirement for signed and stamped delivery orders.

The law relating to guarantees in Malaysia is well-established. As stated in MBF Insurans Sdn Bhd v Lembaga Penyatuan Dan Pemulihan Tanah Persekutuan (FELCRA) [2008] 2 MLJ 398, a guarantee becomes operative only after the terms of the guarantee have been strictly complied with by a creditor, and if there is any departure from the terms of the guarantee, liability under the guarantee does not arise. However, the courts will not allow guarantors to escape liability on technical grounds where the substance of the guarantee conditions has been satisfied. The approach is to examine whether the essential purposes of the conditions have been fulfilled.

The guarantees contain three essential conditions precedent. First, goods and services must be delivered to the site. Second, goods must be used for the Damai Vista Project. Third, delivery orders must be signed by authorized personnel and stamped.

This condition has been unequivocally satisfied. The documentary evidence shows that delivery orders consistently show delivery addresses corresponding to the Damai Vista Project site. Multiple delivery orders bear signatures and acknowledgments from site supervisors and authorized personnel. Siow Chee Keong (PW1) and Lee Poh Kim (PW3) provided detailed testimony about the delivery process and site coordination. Vincent Khoo Boon Chew who testified for All Ways, admitted that orders were complete and fully received. Despite extensive cross-examination, the Defendants produced no credible evidence that goods were not delivered to site.

The evidence overwhelmingly establishes that the supplied materials were used for the Damai Vista Project. The issuance of Conditional Certificate of Completion on 3.2.2020 demonstrates that the project was completed using the supplied materials. The invoices specify building materials such as cement, tiles, and adhesives that are integral to construction and cannot be easily diverted. The supply period from 2017-2019 corresponds with the active construction phase. The Defendants have not produced any evidence that materials were diverted to other projects. There would be no commercial sense in All Ways accepting and acknowledging materials not intended for the project.

This condition has been the subject of most contention, but I find it has been substantially satisfied. The delivery orders bear signatures from site personnel, even if some were obtained after delivery. The signatories were identified as site supervisors and authorized personnel within the meaning of the guarantee. The delivery orders bear the relevant company stamps as required. The evidence shows it was common industry practice for administrative formalities to be completed after delivery, particularly where goods were urgently needed for construction. The timing of signatures and stamping did not prejudice Euro Holdings, as the substantive conditions of delivery and use were fulfilled.

The Defendants have made much of the allegation that some delivery orders were signed after delivery. However, this does not invalidate the guarantees for several reasons. The law looks to the substance of conditions precedent, and the essential purpose of verification that goods were delivered and accepted was achieved. The signatures constitute acknowledgment of goods previously received, not false documentation. PW1's explanation that signatures were obtained to facilitate payment processing is commercially reasonable. There is no evidence that the signatures misrepresented facts or were obtained fraudulently. The evidence establishes this was standard practice in the construction industry.

The Defendants have challenged whether the guarantees were properly authorized. However, the evidence shows that a circular resolution was passed by Euro Holdings' board authorizing the guarantees. The guarantees were signed by Choong Yuen Keong (CYK), who was an authorized director at the material time. Euro Holdings benefited from the completion of the Damai Vista Project facilitated by the guaranteed supplies. Despite allegations, no credible evidence was presented that the guarantees exceeded Choong Yuen Keong's authority.

The guarantees served legitimate commercial purposes. They facilitated credit sales, enabling ADY to supply materials on credit terms essential for project cash flow. Euro Holdings, as the parent company, assumed controlled risk exposure through capped guarantee amounts. The guarantee structure facilitated timely completion of the Damai Vista Project. All parties benefited from the arrangement, with ADY receiving payment security, All Ways obtaining materials, and Euro Holdings completing its project.

Both guarantees are expressed to be continuing guarantees, which has important legal implications. Liability continues until the guaranteed amount is reached or the guarantee is properly terminated. The guarantee covers all qualifying transactions within the specified period and amount. Each supply transaction does not require new consideration for the guarantee.

Euro Holdings' conduct throughout the supply period constitutes acknowledgment of the guarantee obligations. Euro Holdings made payments in 2017-2018, demonstrating acceptance of liability. At no time during the supply period did Euro Holdings repudiate or challenge the guarantees. Euro Holdings continued project development knowing that supplies were being made under the guarantees. Euro Holdings received the full benefit of the supplied materials through project completion.

I reject the defenses raised by Euro Holdings. The conspiracy allegations are unsubstantiated as discussed elsewhere in this judgment. The evidence establishes proper corporate authorization. The essential conditions have been satisfied. No credible evidence of fraud in obtaining the guarantees has been presented.

Applying established legal principles, while guarantees require strict compliance with conditions, the essential purposes have been fulfilled. Guarantee terms should be construed commercially, not pedantically. The Plaintiffs have discharged their burden of proving satisfaction of conditions precedent. There is nothing unconscionable about enforcing properly given commercial guarantees.

For the reasons set out above, I conclude that the corporate guarantees dated 8.8.2017 and 1.11.2018 are valid and enforceable. All conditions precedent have been satisfied. Euro Holdings is liable under the guarantees up to the specified amounts. The guarantees cannot be avoided on the grounds pleaded by the Defendants. The principles of commercial certainty and sanctity of contract require enforcement of these guarantees.

As stated in Perwira Habib Bank (M) Bhd v Hj Abdullah Hj Sulaiman & Anor [1985] CLJ Rep 639, the Court must be satisfied that it amounts to an unequivocal admission for it to pronounce judgment. Here, Euro Holdings' conduct throughout the guarantee period constitutes unequivocal acknowledgment of liability, and justice requires enforcement of these commercial obligations.

In the foregoing I allow the Plaintiff’s claim with costs.

Wong Kin Sing raises several defences to ADY Marketing's claim against him as a personal guarantor and former director of All Ways Builder Sdn Bhd. After careful consideration of his submissions and the evidence presented, I find that his defences have merit, though his liability should be limited rather than completely extinguished.

The evidence clearly establishes that Wong Kin Sing resigned as director of All Ways Builder Sdn Bhd with effect from 1 June 2018. This resignation is documented by his resignation letter dated 28 May 2018 and confirmed by the SSM search dated 15 December

Significantly, the majority of ADY's supply invoices are dated after his resignation, spanning from 7 August 2018 to 24 July 2019.

The fundamental principle underlying director's guarantees is to ensure that the director, as the controlling mind of the company, fulfils the company's financial obligations. Once a director resigns and ceases to have control over the company's affairs, the rationale for continued personal liability is substantially diminished. This principle was acknowledged by ADY's own director, Siow Chee Keong, during cross-examination when he agreed that Wong Kin Sing should not be liable for payment as principal debtor after he had resigned from his directorship.

Vincent Khoo Boon Chew further confirmed that Wong Kin Sing was not involved in All Ways' company affairs after his resignation, stating that after resignation, Wong Kin Sing had no involvement or interference in the project or All Ways Builder's affairs. This testimony establishes that Wong Kin Sing had no knowledge of, control over, or involvement in the supply arrangements that form the basis of ADY's claim.

Most significantly, Wong Kin Sing obtained a Court Order dated 25 July 2019 from the Johor Bahru High Court in Originating Summons No. JA-24NCC-2-01/2019, which formally released and discharged him from all personal guarantees given for the benefit of All Ways Builder Sdn Bhd. This Order was communicated to ADY Marketing on 17 September 2019 through proper legal notice.

The Court Order represents a formal judicial determination that Wong Kin Sing should be released from his guarantee obligations. The legal effect of such an order is clear and unambiguous. As established in Tan Ah Tong v Perwira Habib Bank Malaysia Bhd [1998] 1 MLRA 504, discharge of guarantees can take various forms, and such discharge may be oral or effective as a waiver or estoppel.

The existence of this Court Order distinguishes Wong Kin Sing's case from the other defendants and provides him with a complete defence to ADY's claim. ADY Marketing was formally notified of this discharge and cannot now claim to be unaware of Wong Kin Sing's release from liability.

ADY Marketing has failed to produce the purported Letter of Guarantee allegedly signed by Wong Kin Sing on 4 December 2017. Under the fundamental principle that he who asserts must prove, as established in Section 101 of the Evidence Act 1950, ADY bears the burden of proving the existence of the guarantee document upon which its claim is based.

As held in the time-honoured decision of Selvaduray v Chinniah [1939] 1 MLRH 107, the burden of proof is upon the person who would fail if no evidence at all were given on either side, and the plaintiff must establish his case. If the plaintiff fails to do so, it will not avail him to turn around and say that the defendant has not established his case. In this instance, without production of the guarantee document, ADY has failed to establish the foundational basis for its claim against Wong Kin Sing.

The evidence establishes that Wong Kin Sing had minimal involvement in the day-to-day operations of All Ways Builder even before his resignation. All purchase orders and supply arrangements were handled by other personnel, particularly Vincent Khoo Boon Chew. Wong Kin Sing's role was largely ceremonial, and he had no substantive control over the procurement decisions that led to ADY's supplies.

Having carefully considered Wong Kin Sing's defence and his strategic concession during proceedings, I find that his liability, if any, must be temporally limited to the period of his active directorship of All Ways Builder Sdn Bhd.

Wong Kin Sing resigned as director of All Ways with effect from 1 June 2018, as evidenced by his resignation letter dated 28 May 2018 and the SSM search dated 15 December 2020. The principle underlying personal guarantees by company directors is to ensure accountability during the period when the director exercises control and influence over the company's affairs.

In his written submission, Wong Kin Sing made a tactical concession that any liability he might bear should be limited to obligations arising before his resignation date. Specifically, he acknowledged potential exposure only to the following debit notes that predated his resignation:

This concession is consistent with established principles of director's liability and the temporal scope of personal guarantees. Once a director ceases to hold office and relinquishes control over company operations, his personal exposure under guarantees given Date Debit Note Reference Amount (RM) 30 April 2018 DN-A12-1804 15,121.61 31 May 2018 DN-A12-1805 11,028.29 Total 26,149.90 in his capacity as director should correspondingly cease, absent express provisions to the contrary.

However, even this limited concession must be viewed in the context of Wong Kin Sing's other defences, particularly his formal discharge through the Court Order dated 25 July 2019, ADY Marketing's failure to produce the original guarantee document, and the principle that Euro Holdings, as corporate guarantor, assumed primary liability for All Ways' obligations.

Applying the legal principle that guarantees should be construed strictly against the creditor, and considering the totality of evidence presented, I find that Wong Kin Sing's liability is limited to the two debit notes totalling RM26,149.90, representing obligations that arose during his tenure as director before his resignation on 1 June 2018.

This finding recognises Wong Kin Sing's acknowledgment of potential liability for the limited period while rejecting ADY Marketing's broader claim for supplies made after his resignation and withdrawal from All Ways' affairs. The Court Order discharge of 25 July 2019 provides additional protection, but the temporal limitation based on his resignation provides a clear and principled basis for limiting his exposure.

Accordingly, judgment is entered against Wong Kin Sing in the limited sum of RM26,149.90 plus interest at 5% per annum from the date of each respective debit note until full settlement. Wong Kin Sing is absolved from all other claims by ADY Marketing in these proceedings.

Given his early resignation and limited involvement in the transactions forming the basis of the broader claim, Wong Kin Sing cannot be held responsible for supply arrangements and debts that were primarily incurred after his departure from the company and without his knowledge or involvement.

Wong Kin Sing has filed third party proceedings under Order 16 Rule 8 of the Rules of Court 2012, seeking contribution and indemnity from All Ways Builder Sdn Bhd, Euro Holdings Berhad, and Chia Chiw Hoon. Given that I have found Wong Kin Sing liable only for the limited sum of RM26,149.90, I will address his third party claim in this context.

The principles governing third party claims for contribution and indemnity are well-established. As stated in Sime Darby Berhad & Ors v Dato' Seri Ahmad Zubair & Ors [2012] 2 MLRH 466, there are certain recognised relationships that by law or in equity may give rise to a right to an indemnity, including situations where a co- guarantor might be entitled to be indemnified by another co-guarantor.

Wong Kin Sing's third party claim is based on several legal theories. First, as against Euro Holdings, he argues that Euro Holdings issued corporate guarantees making it the principal debtor, and therefore Euro Holdings should indemnify him for any amounts he might be forced to pay. Second, as against All Ways, he contends that as the main contractor that ordered the materials, All Ways is primarily liable and should indemnify any director who pays on its behalf. Third, as against Chia Chiw Hoon, he seeks contribution on the basis that as co-guarantors, there should be equal sharing of liability between personal guarantors.

Given Wong Kin Sing's limited liability of RM26,149.90, his third party claims have substantial merit. The evidence shows that Euro Holdings issued comprehensive corporate guarantees that make it the principal obligor for the debts in question. The guarantees specifically state that Euro Holdings' obligations are principal obligations and not ancillary to any other obligations of the customer or any other person.

Furthermore, the evidence establishes that Euro Holdings made direct payments to suppliers in the past, demonstrating its acceptance of primary liability. The corporate guarantee structure was specifically designed to provide security to suppliers like ADY Marketing, with Euro Holdings assuming the role of principal guarantor.

As against All Ways, the evidence shows that Wong Kin Sing's guarantee was given to facilitate All Ways' procurement of materials for its benefit. In equity, All Ways should indemnify its directors for liabilities incurred on the company's behalf, particularly where the director derived no personal benefit from the guaranteed transactions.

However, given that All Ways Builder Sdn Bhd has been wound up on 15 February 2024, practical recovery from All Ways is unlikely. This strengthens Wong Kin Sing's claim for contribution from the remaining solvent Defendants.

For the comprehensive reasons set out above, I find that Wong Kin Sing's liability is limited to RM26,149.90 representing debit notes that arose during his tenure as director before his resignation on 1 June 2018. His strategic concession acknowledging this limited liability demonstrates a realistic assessment of his legal position while successfully defending against ADY Marketing's broader claim.

Wong Kin Sing's third party claims for contribution and indemnity from Euro Holdings and Chia Chiw Hoon have no merit and should not be allowed. The principle of equity requires that co-guarantors share liability proportionally, and Euro Holdings, as the principal corporate guarantor, should bear primary responsibility.

This finding strikes an appropriate balance between recognising Wong Kin Sing's limited involvement and the legal realities of director's guarantees, while ensuring that he is not unfairly burdened with obligations that arose after his withdrawal from All Ways' affairs.

Euro Holdings counterclaim consists of:

An allegation of conspiracy to injure Euro Holdings and

Siphoning of funds of Euroland;

Increase the price of goods supplied to Euroland;

Cheating Euro and Euroland;

Signing letters of guarantee on behalf of Euro;

Unlawful act and fraud on Euro and Euroland

ADY & M South, in reply to the counterclaim submitted that Euroland had in Paragraph 3 of the Consent Judgment admitted that there was no conspiracy and/or fraud committed by ADY and M South. Euro Holdings has failed to prove the elements of conspiracy based on the facts pleaded.

CYK and TYM in defence, they had acted lawfully in their capacity as directors of the companies and that all the guarantees issued were subjected to a due diligence conducted by Messrs Mah-Kamariah & Philip Koh.

By way of consent judgment recorded on 22.11.2023 resulting in the withdrawal of Euroland’s counter-claim against CYK, Euro Holdings has no case against them. Once Euroland has withdrawn its counterclaim, clearly Euro Holdings has no foundation or basis to continue with the action. Finding on the Counterclaim Impact of settlement by Euroland and its withdrawal of the

A significant development in these proceedings was the settlement reached by Euroland & Development Sdn. Bhd., ADY, M South in Suit 246 and Suit 550 and its withdrawal of counterclaim against the Defendants by way of consent judgment dated 22.11.2023. This raises important questions about the impact on Euro Holdings' ongoing counterclaim, which I shall address below. Background of the settlement

The undisputed facts regarding the settlement are that Euroland was the first defendant in the original actions and co-plaintiff in the counterclaim alongside Euro Holdings. Euroland entered into a consent judgment with M South and ADY on 22.11.2023. By this settlement, Euroland acknowledged its liability for the supplies made to the Damai Vista Project. Euroland withdrew from the conspiracy counterclaim against the Defendants. Euro Holdings did not participate in this settlement and continues to maintain its counterclaim. Principles governing settlements between Co-Defendants

The law regarding the effect of settlements between co-defendants or co-parties in conspiracy claims is well-established. The fundamental principle is that each party's liability must be assessed independently, and settlement by one party does not automatically absolve or bind other parties. As established in Jamil bin Harun v Koperasi Serbaguna Seri Tanjung Berhad & Ors [2003] 4 CLJ 734, where there are multiple defendants in a tort action, settlement by one defendant does not release the others unless there is clear evidence of intention to release all parties, and each party's liability must be determined on its individual merits.

Be that as it may, Euroland's settlement and acknowledgment of liability has significant evidentiary implications for Euro Holdings' position. Euroland's acknowledgment that goods were legitimately supplied constitutes an admission against the interest of the corporate group. By settling and acknowledging legitimate supply, Euroland has effectively contradicted the core allegation that the supplies were part of a fraudulent conspiracy. As related companies within the same corporate structure, Euroland's admissions carry particular weight regarding the legitimacy of the underlying transactions. As the direct contracting party with All Ways, Euroland was best positioned to assess the legitimacy of the supplies. Impact on conspiracy allegations

The settlement fundamentally undermines Euro Holdings' conspiracy counterclaim in several ways. Euroland's settlement acknowledges that the supply arrangements were legitimate commercial transactions, not fraudulent schemes. If the direct contracting relationship between Euroland and the suppliers was legitimate as acknowledged in settlement, the foundation for alleging conspiracy collapses. It is commercially and legally inconsistent for one company in a corporate group to acknowledge legitimate liability while its parent company alleges fraud in the same transactions. Euroland, as the direct contracting party, would have been centrally involved in any alleged conspiracy, making its acknowledgment of legitimacy particularly damaging to the conspiracy theory.

While the settlement does not create strict res judicata against Euro Holdings as it was not a party to the settlement, it creates powerful evidential implications. The consent judgment represents a judicial acknowledgment of the Plaintiffs' legitimate claims. Admissions by related entities within a corporate group carry significant evidentiary weight. While not binding Euro Holdings directly, the settlement creates issue estoppel regarding the legitimacy of the underlying supply transactions. Commercial reality and business judgment

The settlement reflects sound commercial judgment that further undermines the conspiracy allegations. Euroland had full access to corporate records and project documentation to assess the legitimacy of claims. The settlement would have been reached after proper legal advice and due diligence. Legitimate businesses do not settle fraudulent claims, and the settlement indicates Euroland's assessment that the claims were meritorious. The decision to settle rather than defend suggests confidence in the Plaintiffs' case. Impact on Euro Holdings' credibility

Euro Holdings' continuation of the conspiracy counterclaim after Euroland's settlement raises serious questions about the bona fides of its allegations. The inconsistent positions within the same corporate group suggest the conspiracy allegations lack genuine foundation. Notwithstanding that Euroland no longer was a subsidiary of the Euro Holding when the settlement was reached, Euro Holdings bears a heavy burden to explain why it maintains conspiracy allegations that its related company has effectively repudiated through settlement. Evidentiary presumptions

The settlement creates several evidentiary presumptions that work against Euro Holdings. The settlement creates a presumption that the underlying transactions were legitimate commercial dealings. It is presumed that Euroland conducted proper due diligence before acknowledging liability. The settlement is presumed to have been entered in good faith after proper consideration. Legitimate businesses are presumed not to acknowledge liability for fraudulent claims. Absent of any evidence to suggest otherwise, I am left with no concrete reason but to conclude Euro Holdings’s counterclaim lacks legitimacy. Legal precedent on corporate Group Liability

The courts have consistently held that in corporate group scenarios, the acknowledgment of liability by one group company significantly impacts the position of related entities. In Pilecon Engineering Bhd v Formula One Management Ltd & Ors [2012] 2 CLJ 671, the Court observed that where companies operate as part of an integrated corporate group, the acknowledgment of liability by one entity for transactions benefiting the group creates strong presumptions regarding the legitimacy of those transactions. Impact on damages and quantum

Euroland's settlement also impacts the quantum analysis. The settlement acknowledges that the Plaintiffs provided genuine value worthy of compensation. By settling, Euroland has effectively validated the quantum of supplies made. The settlement contradicts allegations that claims were inflated or duplicitous.

The settlement has practical implications for the ongoing proceedings. With Euroland's withdrawal, the factual foundation for multi-party conspiracy is weakened. Euroland's settlement may impact the availability and credibility of witnesses supporting conspiracy theories. Documents that supported Euroland's position now support the Plaintiffs' case. Conclusion on Settlement impact

The settlement by Euroland and withdrawal of its counterclaim has profound implications for Euro Holdings' ongoing conspiracy counterclaim. The settlement provides powerful evidence contradicting conspiracy allegations. The settlement reflects commercial acknowledgment of legitimate liability. Euro Holdings' continuation of conspiracy allegations after a once related party settlement raises credibility concerns. The settlement significantly increases Euro Holdings' burden to prove conspiracy allegations.

Accordingly, while Euroland's settlement does not create strict legal binding effect on Euro Holdings, it creates overwhelming evidential and commercial impediments to maintaining the conspiracy counterclaim. The settlement effectively destroys the factual foundation for alleging fraudulent conspiracy in what Euroland has acknowledged to be legitimate commercial transactions. Whether the defendants have conspired jointly to defraud Euro

Euro Holdings' conspiracy counterclaim alleges that the Defendants in the counterclaim, namely ADY Marketing Sdn. Bhd., M South Marketing Sdn. Bhd., All Ways Builder Sdn. Bhd., Choong Yuen Keong @ Tong Yuen Keong, and Tong Yun Mong, conspired jointly to defraud Euro Holdings of substantial sums totaling RM2,907,765.02. After careful examination of all evidence and considering the submissions of all parties, including the specific submissions by Wong Kin Sing and Choong Yuen Keong @ Tong Yuen Keong, the counterclaim must be dismissed for the reasons set out below. Law on conspiracy claims

The legal elements required to establish a claim for conspiracy to defraud are well-established in Malaysian law. In Yap J.H. v Tan Sri Loh Boon Siew & Ors [1991] 4 CLJ (Rep) 243, the Court laid down the essential elements, stating that the plaintiff must establish an agreement between two or more persons, an agreement for the purpose of injuring the plaintiff, and that acts done in execution of that agreement resulted in damage to the plaintiff.

As reaffirmed in Renault Sav Inokom Corp Sdn Bhd and other appeals [2010] 5 MLJ 394, it is trite law that the agreement to injure must come first, meaning the agreement should have crystallised before the alleged unlawful acts are done in execution or pursuant to the agreement.

The standard of proof remains the balance of probabilities as established in Sinnaiyah & Sons v Damai Setia [2015] 5 MLJ 1, even for serious allegations such as fraud and conspiracy. Analysis of Alleged Conspiracy Elements Element 1: Agreement between two or more persons

Euro Holdings has failed to establish any credible evidence of an agreement between the alleged conspirators. The evidence presented shows that ADY and M South operate as independent trading companies with different geographical bases. PW2 Tay Eng Teng testified that M South operates in the Southern region while ADY operates in the Central region. Both companies have different customer bases, product focus, and marketing strategies. They operate independently and only share market information as business partners.

The evidence reveals legitimate commercial relationships rather than conspiratorial arrangements. The relationship between ADY and M South is that of friendly business partners and friendly competitors. Both companies legitimately supply building materials throughout Peninsular Malaysia. The use of similar invoice formats is explained by industry practice and common accounting software.

Euro Holdings has not produced any evidence of secret meetings, communications, or agreements between the alleged conspirators. All business dealings were conducted openly and transparently. Purchase orders, quotations, and invoices were processed through normal commercial channels.

While the appointment process of All Ways may have been informal, this reflects commercial reality rather than conspiracy. All Ways was a legitimate contractor capable of performing the work, as evidenced by the successful completion of the project. Element 2: Agreement for the purpose of injuring Euro Holdings

Even if some form of cooperation existed between the parties, which is denied, there is no evidence that any such cooperation was intended to injure Euro Holdings. All parties, including Euro Holdings, benefited from the arrangement. Euro Holdings obtained a completed residential development project. The project achieved Conditional Certificate of Completion, benefiting Euro Holdings' business.

There is no evidence of intention to harm Euro Holdings. All supplies were made for legitimate construction purposes. Materials were incorporated into the completed project, benefiting Euro Holdings. No evidence suggests any party intended to cause financial harm to Euro Holdings.

All pricing was transparent and documented in quotations. Corporate guarantees were openly executed with board approval. Payment arrangements were clearly specified and communicated. Euro Holdings voluntarily issued corporate guarantees and made payments in 2017-2018, demonstrating acceptance. Euro Holdings actively participated in and benefited from the arrangements. Element 3: Acts done in execution causing damage

Euro Holdings has failed to establish that any alleged conspiratorial acts caused damage. Euro Holdings obtained full value through project completion. The Damai Vista project was completed and delivered to purchasers. Euro Holdings benefited from the development and sale of residential units.

All evidence confirms that genuine building materials were supplied. Materials were incorporated into the completed project. No evidence of overcharging or supply of defective materials has been presented. Euro Holdings received the benefit of completed construction. The corporate group achieved its development objectives. Any financial obligation represents legitimate debt for value received. Former directors’ submissions

The submissions by the former directors of Euro Holdings namely Choong Yuen Keong @ Tong Yuen Keong and Tong Yun Mong, as presented by their counsel KC Tang & Co, significantly undermine the conspiracy allegations. A due diligence preliminary enquiry was conducted by Messrs Mah-Kamariah & Philip Koh. All relevant documents, including guarantees, were disclosed during due diligence. The due diligence process validates the legitimacy of the transactions.

All guarantees were subject to board approval through directors' circular resolutions. The transactions were transparent and properly documented. Corporate governance procedures were followed.

Euroland's consent judgment on 22.11.2023 admitted there was no conspiracy. As the direct contracting party, Euroland was best positioned to know if conspiracy existed. The settlement effectively contradicts Euro Holdings' conspiracy allegations.

Euro Holdings' witness Gan Chong Wei admitted under cross-examination that he had no personal knowledge of the conspiracy allegations. The absence of first-hand knowledge from Euro Holdings' own witness is fatal to the conspiracy claim. Fatal flaws in Euro Holdings' conspiracy theory Lack of credible evidence

Euro Holdings' conspiracy allegations suffer from fundamental evidentiary deficiencies. Euro Holdings has not produced any direct evidence of conspiracy, such as recorded conversations discussing fraudulent schemes, written communications planning deception, meeting minutes or records of conspiratorial discussions, or financial transfers suggesting fraudulent benefit.

The conspiracy theory relies heavily on speculation and suspicion rather than concrete evidence. All alleged conspiratorial acts can be explained by normal commercial behavior and industry practice.

It is clear that the witnesses called by Euro do not have consent or authority to testify on behalf of Euroland. They also have no direct knowledge of the pleaded facts and admit that their knowledge were only based on the documents filed. The two witnesses were Gan Chong Wei and Lee Wee Thong.

There were no other witnesses who has direct knowledge called by Euro Holdings to prove Euro Holding's allegations that there was a conspiracy between the Defendants.

The diminished value of the said witnesses can be gleaned from the instructive cross examination by counsel Mr KC Tang. The notes of evidence reads as follows: TKC: I’m sorry to put you in this predicament but that’s why I said, all this could have been sorted out five months ago and not today. So that’s why I have to ask you these questions. Sorry, Mr Gan. But then in what capacity are you here for Euroland? GCW: I do not have any capacity on behalf of Euroland, yes. TKC: Yes, My Lord. Mr Gan, do you agree that since you are not authorised by Euroland to testify, your witness statement, as far as Euroland is concerned, cannot be accepted? GCW: Yup. Ok. TKC: Not yup, Mr Gan, you have to say yes or no, you know. TKC: Yes, ok. So, I will then move on, ok, and I’m moving, My Lord, ok, to on the side of caution, just in case, ok, Mr Havindar raises other issues after the witness has testified and confirmed. Ok, now I’m just going to lay down some ground rules for you then I will be able to finish my cross quite early with you, Mr Gan. Ok. Can we just confirm when you joined, ok, first question, did you join Euro Holdings and Euroland at that same time? GCW: I joined, I was appointed as the group CFO, so indirectly I have access to all these subsidiaries. TKC: Ok. So, and do you still recall when was the date that you joined? So that I know how to shorten the time period. GCW: 01/09/2021. TKC: 01/09/2021. And you are still the CFO for Euro Holdings Bhd. TKC: Ok. Now the project, the Damai Vista project, now you testified earlier that it was completed, the CPC was completed somewhere in 2020. Do you recall? GCW: The partial completion was in somewhere in 2020 but then – TKC: Ok, partial completion and actual completion. Ok. Now did you and when I say “Did you”, that means, ok, personal knowledge, Mr Gan, so if you’re telling that you don’t have personal knowledge, it’s from the documents, you have to correct me. GCW: Ok. TKC: Ok, Mr Gan? TKC: Ok, now I’m going to ask you questions, ok, relating to your personal knowledge. Now, Mr Gan, did you actually have sight of all the progress claims by all the respective contractors or suppliers in this particular suit? GCW: No, only those presented. TKC: Ok. So, you don’t have all, everything, ok. Now, No.2, did you have sight of any of the construction site minutes for the Damai Vista project? GCW: I have but not all. TKC: And would you agree with me that all the personal knowledge that you have, ok, is only restricted to what you see in documents? GCW: Yes 122. Mr. Gan Chong Wei's admission that he did not provide any input in the defence and counterclaim and had no knowledge of the statements and facts in the paragraphs in the Defence and Counterclaim meant that he was a witness who carried no value for Euro. He did not have personal knowledge of the complaints raised by Euro Holdings in the Counterclaim.

The witness also admitted that he only joined Euro as CFO on 01.09.2021, which was after the Damai Vista Project was completed specifically after the goods were duly delivered by ADY and M South. It boggles the mind as to why such a witness was procured by Euro Holdings to become a witness. Although he may be able to testify from the documents, however, in a specific case alleging conspiracy between former directors and the full understanding of the project, the answers given by the witness will have to be scrutinised with a fine tooth comb. It is my finding that he was but a lame witness who was unable to substantiate any of the allegations made in the pleaded case of Euro.

The following extract of the Notes of Proceedings on the above point further demonstrates the concern of the court. TKC: Now this is a very serious allegation that is being made by the company. Ok, my question to you is this, Mr Gan, to the best of your knowledge, was there any police report filed by either Euro Holdings or Euroland pertaining to this paragraph 5.20? GCW: Not I’m aware of. TKC: Ok. Was there any complaint made to Bursa, ok, as far as this paragraph 5.20 is concerned? GCW: Not I am aware of. TKC: Ok. You have testified earlier that Euro Holdings have always been audited in terms of the financial statements. TKC: Ok, good. Now we go to 5.21, ok, “The Plaintiff and the conspirators’ purpose in this case are to cheat the Defendant”. Again, the word “Cheat” is used, Mr Gan. TKC: Did you have any input on this word “Cheat”? TKC: No. Ok. Now again, ok, do you confirm, I’m just going to wrap it up in a simple question, do you confirm that there was no police report or no complaint lodged to Bursa SSM in respect of this paragraph relating to the issue of cheating? GCW: Not I’m aware of. TKC: Ok, now for 5.22, again this is a very serious allegation that was filed by Euro Holdings and Euroland, ok. Did you have any input to this? TKC No. So, in other words, ok, you will also not be able to tell me or to tell this Court who suggested this. Am I right? TKC: Ok. And I would then now go on to your amended defence to the counterclaim against the Plaintiff and the conspirators. Again, I think paragraph 9, if you agree with what I say, what you said earlier to my questions, I will just give you a general question because this seems to be a repeat of the earlier paragraphs. Do you agree, Mr Gan? TKC: Yes. Ok. And “To deceive and/or to cheat the Defendants”. The Defendants here is Euro Holdings and Euroland. So, did you have any input on this, Mr Gan? TKC: No, ok. So, you have no idea where this comes from. Am I right? TKC: Ok. No? That means you know where it comes from? GCW: No, I do not know. TKC: Ok. You have to be clear, ok. Again, you know what I mean, this part, the siphoning, again, you know what I mean, intention to injure, here, and/or to siphon out a total fund. Ok. Did you have any input to this, Mr Gan? TKC: No. Ok. Do you know about this issue that is raised in this paragraph? TKC: Yes, you know. Ok. So where did your get your knowledge from? GCW: Based on the documents. TKC: Ok. Then, Mr Gan, don’t you think that siphoning funds from the company is a serious allegation, Mr Gan? TKC: Yes. Was any police report lodged as a result of this paragraph? GCW: Not I am aware of. TKC: Yes. And was any complaint made to Bursa SSM or Bursa, ok, in respect of this paragraph? GCW: Not I’m aware of. TKC: Ok. Then, Mr Gan, what is the basis of you to say, first, we’re going to break this paragraph into a few questions, few questions from this paragraph. “Intend to injure”, when did this so-called thing happened? Roughly which year, before your time, after your time, during your time? GCW: Before my time. TKC: Before your time. So, you would not know whether there was any intention to injure. Do you agree? TKC: Ok. Another thing, next thing is this, “To siphon”, this is a very, how do I put it? It’s not a very good word to use, Mr Gan, don’t you agree? TKC: Ok. Like I’m suggesting to you, ok, you know that “To siphon” is a very serious word, a very serious allegation to make, ok, by Euro and Euroland. So, you could have just used the word to pay. Why did you use the word “To siphon”? Or you didn’t use this word? GCW: I’m not aware of this. TKC: Ok. And you did not suggest this word? TKC: Thank you, Mr Gan. Ok. “From the Defendant’s company unlawfully”, now this is the other word. Again, this is a very serious allegation that is being made in this paragraph. “Unlawfully”, again, Mr Gan, do you know whether there was any criminal report lodged after the payment of this RM2.9 million? GCW: Not I’m aware of. TKC: Ok. So, was it your input to use the word “Unlawfully”? TKC: Ok. We go to the next one, Mr Gan. And the reason why I ask you all this is because I don’t think there’s any other, there is no other person other than yourself who is authorised to testify for Euro Holdings Bhd. Am I right, Mr Gan? GCW: I think so, yes. TKC: No, not you think so. It’s either a yes or a no, Mr Gan, we don’t want speculation. TKC: Yes. Ok. So that’s why I’ve got to ask you because if I don’t ask you, there’ll be nobody for me to ask after this. Ok. Paragraph 11, “The Plaintiff and the conspirators have cheated”. Again, this word is used. Ok, now I won’t take you through the repeated words, Mr Gan, of this set of pleadings, I will just ask you a very general question, ok, and that would apply to all the other paragraphs which has this word, “Cheated”, “Cheating”, you know what I mean. So, easy, otherwise, I’ve got to go through each and every one, we are going to waste a lot of time. Do you understand where I’m coming from, Mr Gan? TKC: Ok. Now do you agree with me that when the word “Cheated” is used anywhere in this set of pleadings, the defence and the counterclaim, that there was no police report lodged by other Euro Holdings or Euroland. GCW: Not I’m aware of. TKC: Ok. And that goes also for this issue of illegality of conspiracy, you know what I mean. No police report was lodged? GCW: Not I’m aware of. TKC: Ok. And there was no, any complaint lodged with Bursa? GCW: Not I’m aware of. GCW: There is two quotation given with – TKC: No. Yes, with the? GCW: With changes in the price. TKC: Two quotations given with changes in the price. TKC: Hence, that? GCW For the same product. TKC And you come to the conclusion that this means it’s inflated? GCW There’s an increase in the price but there’s no justification onto why there’s any incremental on the price. TKC: Yes, Mr Gan. But then how are you going to justify the word “Inflated”? This is your word; this is your answer. GCW: There’s a price changes and the changes is significant. TKC: Prices changes, changes is significant. TKC: And because of that, you say you used the word “Inflated”. GCW: Or is there any other words that can be used? TKC: It can be increased due to a lot of, you can use the word “Increase”. Again, you know, like the word “Siphoned” and “Paid out”, it connotes different meaning, Mr Gan. Could you not have used the word “Increase”, “Price increase”? “But then the price was increased”. Is this your word that you used, Mr Gan, or was it suggested? GCW: This is not my word. I know that in fact that there’s a change in the price. TKC Ok, I don’t want to put you through all this, that’s why I said I’m suggesting to you, is this your word or is it suggested to you? GCW Suggested. TKC: The police report was lodged on the 18th of September, wow, ok, about three years anniversary, 18/09/2020. Ok. Now, Mr Gan, you testified earlier and I’m just checking my records here that you joined the company in, what, 01/09/2021? TKC: So this was before your time, am I right, Mr Gan? TKC: Ok. Now did this person, Chen Kim Sang, did he give you a copy of this police report? TKC: Then how did you become aware, Mr Gan? GCW: The police report was, there was a police report filing. TKC: Come again? GCW: There’s a filing of this police report.

I agree with the observation of the Plaintiff counsel that Euro Holdings’s counsel did not challenge or clarify their own witness witnesses in re-examination with regards to the admissions/ testimonies given by Euro Holdings witnesses during cross-examination on the issues of conspiracy and fraud as well as the goods that were allegedly not delivered by the suppliers, namely ADY and M South.

The cross examination conducted on the said witness Gan Chong Wei demolished the Euro Holdings’s case. He was not able to explain the complaint of Euro and he was also unable to provide the court with any explanation on the elements of conspiracy or any semblance of the alleged wrong doings. I find the witnesses called by the Defendant Euro Holdings to be of no value to the them. Inconsistent with commercial reality

The conspiracy allegations are inconsistent with observable commercial reality. A genuine conspiracy to defraud would not result in successful project completion benefiting the alleged victim. Fraudulent conspiracies typically involve hidden or falsified documentation, not the transparent record-keeping evident here. The parties maintained long-term commercial relationships inconsistent with fraudulent intent. All practices alleged to be conspiratorial are standard in the construction and trading industries. Euroland's settlement destroys conspiracy theory

As discussed earlier, Euroland's settlement and acknowledgment of legitimate liability fundamentally destroys the conspiracy theory. Euroland's settlement constitutes an admission by the corporate group that the supplies were legitimate commercial transactions rather than fraudulent schemes. The settlement directly contradicts the core conspiracy allegations that Euro Holdings continues to maintain. Euroland's decision to settle reflects a commercial assessment that the claims were meritorious, not fraudulent. As the direct contracting party with All Ways, Euroland was in the best position to assess whether any conspiracy existed, and its acknowledgment of legitimate liability effectively repudiates Euro Holdings' conspiracy theory. Alternative explanations for alleged suspicious circumstances

All circumstances relied upon by Euro Holdings as evidence of conspiracy have valid explanations.

Price variations

The variation in quotation prices is explained by legitimate commercial negotiations, changes in material specifications such as tile sizes, market fluctuations and GST considerations, and standard business practice in construction industry. Witness for ADY Siow Chee Keong clarified why the price variations occurred. From his explanation, nothing can be taken to mean there was a suspicious ill intent reason calculated to cheat Euro Holdings into paying more than what was necessary. More importantly, Euro Holding’s did not adduce any evidence to support what the proper price of the supplied building material was supposed to be priced. It remains a bare assertion on the part of Euro Holdings.

Gan Chong Wei, the witness for Euro Holdings candidly admitted that he had no knowledge about the allegation that the prices were “inflated” suggesting a conspiracy to laden Euro Holdings with greater sums due to ADY and M South. He also could not explain in what manner was Euro Holdings cheated as he was only basing on the file where the documents were kept.

An extract of the cross-examination of Gan Chong Wei (reproduced in the earlier paragraphs) is clear evidence of the inability of Euro Holdings to support the allegations made.

(ii) Multiple suppliers

The involvement of multiple suppliers, namely ADY and M South, is explained by the fact that large projects require multiple suppliers, different companies have different specializations, risk management through diversified supply sources is prudent, and this represents standard industry practice for major developments.

(iii) Informal procedures

Any informal aspects of procedures are explained by commercial urgency in construction projects, long-standing business relationships, industry practice prioritizing project completion, and trust-based commercial relationships. Burden of proof 135. Euro Holdings has failed to discharge its burden of proof on the balance of probabilities. The evidence presented falls well short of establishing conspiracy on the balance of probabilities. All allegedly suspicious circumstances have innocent explanations that are more probable than conspiracy. The evidence actually supports legitimate commercial activity rather than conspiracy. Euro Holdings' own witnesses either lacked personal knowledge or made admissions contradicting conspiracy allegations.

The failure of the conspiracy claim has important legal consequences. Failed conspiracy allegations cannot serve as a defence to legitimate commercial claims. Euro Holdings should bear the costs of pursuing unmeritorious conspiracy allegations. Courts must uphold commercial certainty by rejecting unfounded conspiracy theories. Dismissing unmeritorious conspiracy claims deters strategic litigation designed to avoid legitimate obligations. Conclusion on conspiracy Counterclaim

For all the reasons set out above, I find that Euro Holdings has comprehensively failed to establish its conspiracy counterclaim. The allegations are factually unsubstantiated, with no credible evidence supporting the alleged conspiracy. They are legally deficient, as the essential elements of conspiracy have not been proven. The allegations are commercially implausible, being inconsistent with commercial reality and project success. Base case, Damai Vista was a completed project. Further, they are contradicted by Euroland's settlement, which acknowledges legitimate liability and destroys the conspiracy theory. The allegations are undermined by defendant submissions, as the positions taken by Wong Kin Sing and Choong Yuen Keong demonstrate the absence of conspiracy.

As observed in Siva Kumar a/l Jeyapalan & Anor v Firwas Sdn Bhd [2024] MLJU 195, courts must staunchly refuse to enforce contracts or counterclaims that are founded on illegality or fraud, but equally, courts must not permit parties to escape legitimate commercial obligations through unsubstantiated allegations of conspiracy or fraud.

The conspiracy counterclaim is accordingly dismissed with costs. Euro Holdings must honor its legitimate commercial obligations under the corporate guarantees and cannot escape liability through unproven conspiracy allegations. Dated the 20th day of November 2025 -Sgd- ……………………………………………………………………… AHMAD FAIRUZ BIN ZAINOL ABIDIN Judge Court of Appeal Counsel Datuk Hafarizam Harun and Norhazira Abu Haiyan for ADY & M South Messrs. Hafarizam Wan & Aisha Mubarak Hida Yazlin Mazlan for Euro Holdings Berhad Messrs. Shu Yin, Teh & Taing Tang Kim Choong & Mohammad Shafiee for Choong Yuen Keong@Tong Yun Keong & Tong Yun Mong Messrs. K C Tang & Co.