AURA ASIANA SDN BHD (No. Sykt : 283265-U) DAN 2 LAGI v CHIA KAY JOO (Beramal sebagai T/tn Chia Kay Joo & Co) DAN 2 LAGI (WA-22NCvC-574-10/2017)

[Company No.: 283265-U] …FIRST RESPONDENT

[Company No.: 17620] …SECOND RESPONDENT

[Company No.: 513419-V] …THIRD RESPONDENT

[No. K/P.: 631122-08-5825] …FORTH RESPONDENT

TAN BENG CHAI [No. K/P.: 580307-08-5293] …FIFTH RESPONDENT

PENGARAH TANAH DAN GALIAN WILAYAH PERSEKUTUAN …SIXTH RESPONDENT

PENGARAH TANAH DAN GALIAN 2 NEGERI PERAK …SEVENTH RESPONDENT [IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORIES, MALAYSIA CIVIL DIVISION SUIT NO.: WA-22NCVC-574-10/2017]

[Company No.: 283265-U]

[Company No.: 17620]

[Company No.: 513419-V] …PLAINTIFFS

CHIA KAY JOO [Beramal sebagai Tetuan Chia Kay Joo & Co]

[No. K/P.: 631122-08-5825]

TAN BENG CHA I [No. K/P.: 580307-08-5293] …DEFENDANTS 3 (IN THE ORIGINAL SUIT)

[I/C No.: 631122-08-5825]

TAN BENG CHA I [I/C No.: 580307-08-5293] …PLAINTIFFS

[Company No.: 283265-U]

[Company No.: 17620]

[Company No.: 513419-V]

4.

PENGARAH TANAH DAN GALIAN NEGERI PERAK …DEFENDANTS (IN THE COUNTER CLAIM) 4 GROUNDS OF JUDGMENT INTRODUCTION [1] Enclosure 7 is an application by the FIRST DEFENDANT in the ORIGINAL SUIT for Interpleader proceedings on the grounds as follows: BRIEF FACTS OF THE CASE Plaintiffs’ claim [2] The Plaintiffs’ in the ORIGINAL SUIT claim for the following: a) A Declaration that the said Agreement was wrongfully terminated by the Second and Third Defendants; b) An Order for the First Defendant to the return of all original titles and documents; c) The Second and Third Defendants to refund of RM669,433.30 being monies already paid by the First and Second Plaintiffs under the said Agreement; and d) Interest together with costs. Brief Facts of the case [3] In/or around early 2016, the First and the Second Plaintiffs in the ORIGINAL SUIT negotiated to buy the Second and Third Defendants’ 5 shares in two Indonesian companies known as PT Harvard Cocopro and PT Greenlife Organic Fertilizer. [4] The First and Second Plaintiffs then paid a total of RM669,433.30 as at 6.12.2016 to the Second and Third Defendants as a part of payment to purchase the said Shares as well as to the First Defendant who is the solicitor representing the Second and the Third Defendants and also as the stakeholder. [5] The First and Second Plaintiffs together with the Second and Third Defendants had entered into an Agreement to Purchase Shares dated 3.1.2017 with the said shares total consideration is RM3,920,000.00 and the completion date of the said Agreement is on 3.10.2017. [6] The First and Second Plaintiffs are afforded with an option to pay the full purchase price of the said Shares by way of cash and payment in kind which the First and Second Plaintiffs choose to pay by way of payment on kind through the selling of two properties which is a double storey house at No. 26, Jalan Sentul Jaya 2, 51100 Sentul, Kuala Lumpur in Sentul and a hotel at No. 724, Jalan Pasar, 36000 Teluk Intan, Perak Darul Ridzuan for not less than RM4,100.000.00 6 whereby the proceeds of the sale shall be utilized to settle the balance purchase price of the said Shares. [7] The First and Second Plaintiffs then submitted all the relevant documents i.e the original titles of the said Properties together with the Form 14A (Memorandum of Transfer) and the Directors’ Resolution of the Third Defendant to the First Defendant in the ORIGINAL SUIT as a solicitor representing the Second and Third Defendants in the ORIGINAL SUIT and who are the First and Second Plaintiffs in the COUNTER CLAIM, and also as the stakeholder. [8] The First and Second Plaintiffs in the ORIGINAL SUIT in their Statement of Claim (“SOC”) allege that they have fulfilled their obligation under the said Agreement by paying the balance of purchase price of the said Shares via payment in kind and deemed to pay the full payment of the said Shares. [9] Despite the fact that full payment of the balance purchase price has been made before the date of completion on 3.10.2017, the Second and Third Defendants in the ORIGINAL SUIT had wrongfully terminated the said Agreement. [10] Subsequently, the First and Second Plaintiffs in the ORIGINAL SUIT instructed its solicitor to issue a Notice of Demand to the Defendants 7 for the return of all original titles and documents and also to refund of RM669,433.30 being monies already paid by the First and Second Plaintiffs in the ORIGINAL SUIT under the said Agreement which the Defendants in the ORIGINAL SUIT still failed, neglected and/or refused to do so. DECISION OF THE COURT [11] Having perused all the cause papers filed in this application and upon considering the submissions by all the parties, the Court dismisses the First Defendant’s application in the ORIGINAL SUIT with costs of RM2,000.00 to be paid by the First Defendant to the Plaintiffs. The grounds for dismissing the First Defendant’s application in the ORIGINAL SUIT are set down below. [12] The First Defendant filed this application pursuant to Order 17 rule 3 of the ROC 2012 which provides: “(1) An application for relief under this Order shall be made by originating summons unless made in a pending action, in which case it shall be made by a notice of application in Form 27 or 28, whichever is appropriate.

Subject to paragraph (3), an originating summons under this rule shall be supported by evidence that the applicant- 8

claims no interest in the subject matter in dispute other than for charges or costs;

does not collude with any of the claimants to that subject matter; and (c ) is willing to pay or transfer that subject matter into Court or to dispose of it as the Court may direct. [13] The First Defendant in the ORIGINAL SUIT in applying for the interpleader reliefs here, submitted that the First Defendant has no interest in the subject matter other than the sum of RM15,000.00 for the costs. The First Defendant contended that the First Defendant in the ORIGINAL SUIT ‘does not collude’ with either of the Second and Third Defendants in the ORIGINAL SUIT, and that the Plaintiffs have no evidence of any collusion between the First Defendant, Second and Third Defendants. [14] The Plaintiffs in the ORIGINAL SUIT are asking for the return of the documents and there was no claim against the First Defendant in the ORIGINAL SUIT. The First Defendant as the stakeholder expects to be sued by the Second and Third Defendants in the ORIGINAL SUIT and the First and Second Plaintiff in the COUNTER CLAIM in the 9 event that he releases the documents to the Plaintiffs in the ORIGINAL SUIT. [15] The First Defendant also contended that there is another suit in the Ipoh High Court Suit No.: AA-22NCVC-176-12/2016 where the Court has granted an application for a stay of proceedings pending the outcome of the appeal to the Court of Appeal. [16] Going through all the cause papers filed in this suit, the Court is of the opinion that the First Defendant’s application cannot be entertained because the First Defendant has failed to fulfil the necessary conditions in Order 17 rule 3 of the ROC 2012. [17] It is clear from the Plaintiffs’ SOC that the basis of the Plaintiffs’ claim is on the termination of Agreement to Purchase Shares (“the said agreement”) where the First Defendant acting as the stakeholder towards Second and Third Defendants in the ORIGINAL SUIT has full knowledge of the said agreement that has been wrongly terminated by the First Defendant’s clients and/or has been intentionally allowed to lapse by his clients BUT refused to return all the original titles and other relevant documents (“the said documents”) to the Plaintiffs despite repeated demands from the Plaintiffs via letters dated 18.8.2017 and 12.10.2017 on the ground that the First Defendant as 10 the stakeholder expects to be sued by the Second and Third Defendants in the ORIGINAL SUIT and the First and Second Plaintiff in the COUNTER CLAIM in the event that he releases the documents to the Plaintiffs in the ORIGINAL SUIT. [18] The change of mind by the First Defendant in refusing to release the said documents earlier on the ground stated above, and agreeing to release the said documents at this stage, in the opinion of the Court, seems like the First Defendant is playing the same game as Second and Third Defendants in denying the termination of the said Agreement. [19] There is no dispute that the First Defendant at the material times, the solicitors involved in the drafting, vetting and execution of the said Agreement. Therefore, the First Defendant is supposed to be impartial, unbiased and fair in his duty and should not be seen as to collude with the Second and Third Defendants. But the fact that, the First Defendant refused to return the said documents when demanded earlier by the Plaintiffs after the lapsed of the Agreement on 3.10.2017 and/or before this Suit filed by the Plaintiffs only prove that the First Defendant colluded with the Second and Third Defendants in playing the same game. 11 [20] On the issue of collusion Zainun Ali J (now FCJ) in the case of RHB Bank Bhd v. Comax Sdn Bhd [1999] 3 CLJ 552 at page 557, has this to say: “On the 2nd precondition, (r.3(3)(b)), it must be shown that the applicant does not collude with any of the claimants to the subject matter. Though the line between interest and collusion is tenous, it is nevertheless obvious that there must be no identification of interest between the applicant and the claimant. Collusion does not necessarily envisage something which is morally wrong, but only that the applicant must not ‘play on the same side’ as one of the claimants (Murrieta’s case) as well as Tucker v. Morris [1832] 1 C&M 73 2 LJ Ex.1”. [21] From the facts and documentary evidence produced in this case before the Court, the Court is satisfied that the First Defendant has failed to show that he does not collude with the Second and the Third Defendants in playing the same side to exclude him from being said to be biased against the Plaintiffs, especially when it is clear that the First Defendant in this case was persistent on his stance in not returning the said documents to the Plaintiffs after the lapse of the said Agreement. 12 [22] Therefore, for the reasons stated above, the First Defendant’s application is dismissed with costs. Dated 30th March 2018. …………………………………… (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUALA LUMPUR. 13 Encik Megat Abdul Munir (counsel for the Plaintiffs/Respondents) Messrs Zain Megat & Murad Advocates & Solicitors Encik S.Y. Lee (counsel for the First Defendant/Appellant)