Barisan Tenaga Perancang (M) Sdn Bhd v Dr Mansur Bin Hussain Dan Siti Ruhaini Binti Abdul Samad (22NCC-366-09/2014)

DR MANSUR BIN HUSSAIN

SITI RUHANI BINTI ABDUL SAMAD

NOR HASHIM & ASSOCIATES (Being sued as a legal firm)

SHAIK MOHAMED & CO (Being sued as a legal firm) … DEFENDANTS (1ST COUNTER CLAIM) BETWEEN SHAIK MOHAMED & CO … PLAINTIFF BARISAN TENAGA PERANCANG (M) SDN BHD (COMPANY NO : 260082-K) … DEFENDANT 2 and between

DR MANSUR BIN HUSSAIN

SITI RUHANI BINTI ABDUL SAMAD

MUHAMMAD HAZIM BIN MANSUR

MASA BUILDER SDN BHD COMPANY NO : 396479-T) (In Liquidation) … PLAINTIFFS

CHAI WOON CHET

CHIAM AH CHING

MOKHZANI BIN JALANI

KAMARUDIN BIN MOHAMAD (NRIC NO : 570129-03-5641) … DEFENDANTS BEFORE YA KHADIJAH BINTI IDRIS JUDICIAL COMMISSIONER 3 JUDGMENT Introduction [1] This is an appeal against my decision setting aside the damages awarded by the Deputy Registrar to the Plaintiff. Parties [2] Plaintiff, Barisan Tenaga Perancang (M) Sdn Bhd, is a company having a registered address in No. 17 & 19, Jalan Brunei Barat, Pudu, Kuala Lumpur. The Plaintiff is the owner of three pieces of land located in Mukim Bandar Selayang, Daerah Gombak, Selangor and is the developer of a development project known as Selayang Springs Project. [3] The First Defendant, Dr. Mansur bin Hussain (1st Defendant) and the Second Defendant Siti Ruhani bt Abdul Samad (2nd Defendant) are at all material time the directors and shareholder of a company known as Masa Builder Sdn Bhd (MBSB). 4 [4] A law frim, Messrs Nor Hashim & Associates (Messrs. Nor Hashim), is the third defendant. Another law firm, Messrs. Shaik Mohamed & Co (Messrs Shaik Mohamed) is the fourth defendant. [5] On 5 May 2015, the Plaintiff and Messrs Nor Hashim entered into a consent order. Thus the Consent Order dated 5 May 2015 concluded the Original Action against Messrs. Nor Hashim. Background [6] The brief facts of this case as gathered from the judgment of the learned Judicial Commissioner as reported in Barisan Tenaga Perancang (M) Sdn Bhd v Dr Mansur Hussain & Ors [2016] 1 LNS 1723 is set out below. [7] The 1st Defendant set up MBSB (a Class A contractor) and MASA PMC Sdn. Bhd. (a company to do project management consultancy). In 2006 the 1st Defendant acquired the Plaintiff to carry out the Selayang Springs Project on the Plaintiff’s Land. MBSB owned all the shares in the Plaintiff company. The 1st and 2nd Defendants were the directors of the Plaintiff and MBSB. Both the 1st and 2nd Defendants also owned all 5 the shares in MBSB with the 1st Defendant owning the majority of shares in MBSB. [8] Under the Selayang Springs Project, the Plaintiff would develop 4 twenty-storey blocks of condominium, 1 block of service apartment and commercial units. The total Gross Development Value of the said project was RM783,697,078.00; [9] The first main contractor for the Selayang Springs Project was Kenobuild Sdn. Bhd. (KSB). KSB had financial difficulties which delayed the said project. In 2011, MBSB replaced KSB as the said project's main contractor. The Selayang Springs Project was further delayed when the main contractor for one component of the said project withdrew from the said project due to its failure to obtain full financing. Another main contractor was appointed. By that time most of the Plaintiff’s consultants and contractors were chasing the Plaintiff for payment for work done. The Plaintiff also owed a substantial sum of liquidated and ascertained damages to purchasers due to delay in completion of the Selayang Springs Project. [10] In order to revive the Selayang Springs Project the 1st Defendant decided to borrow RM6 million from one Datuk Chai who was introduced 6 to the 1st Defendant by the Plaintiff’s consultant/contractor to whom payment is due from the Plaintiff for works done. However Datuk Chai claimed the money is for the purchase of shares in the Plaintiff company through his nominees. [11] Numerous discussion and negotiations were carried out between the 1st Defendant and Datuk Chai. Subsequently the 1st Defendant entered into an agreement with one Mr. Chiam, who is Datuk Chai’s nominee, on 8 October 2012 to sell MBSB’s shares to Mr. Chiam for the sum of RM6 million. [12] At the same time the 1st Defendant also caused his son, Muhammad Hazim to enter into an Option Agreement to re-purchase the shares of the Plaintiff from Mr. Chiam within six months of the date of the Sale and Purchase Agreement. [13] The 1st Defendant and his son defaulted in making payments of the Option Fee as stipulated in the Option Agreement. As a result thereof, Mr. Chiam proceeded with the sale of shares and registered the transfer of shares from MBSB to himself on 9 May 2013. 7 [14] Since the option had lapsed, on 25 April 2013 the Plaintiff effected and registered the resignation of the 1st Defendant and his wife as directors and of the company secretary, Siti Hadijah with the Companies Commission of Malaysia. [15] After the 1st Defendant’s resignation, there has been a restructuring of the shareholding and management of the Plaintiff. New shareholders came in and new directors have been appointed to replace the former Board of Directors of the Plaintiff company. [16] To this end, the Plaintiff had on 19 August 2014 entered into a Joint Venture Agreement (JV Agreement) with KL Northgate Sdn Bhd (KL Northgate) to proceed with the Selayang Springs Project. On 11 September 2014, when the contractors appointed by KL Northgate went to work on the project site, they were unable to access the site as the site had been padlocked. Police reports were lodged and the padlocks were removed and the site was accessed. [17] The next day, 12 September 2014, the 1st Defendant arrived at the site together with one “Dato Kumar” and 11 other men from a security company called J Force Services Sdn Bhd together with a contractor named Alvin. Alvin informed the site supervisor that he had been 8 appointed by MBSB to complete the project. The site supervisor testified during the trial of the main suit that Dato’ Kumar and J Force forced KL Northgate workers to leave the site and warned them against returning back to the site. [18] Subsequently, J force eventually left the site and the Plaintiff has re-taken possession of the site. KL Northgate then commenced all the preliminary works necessary to resuscitate the Selayang Springs Project. [19] Disputes ensued between the Plaintiff and the Defendants in particular with the 1st Defendant over the 1st Defendant’s position in the Plaintiff company. Plaintiff filed this suit seeking, inter alia, a declaration that the 1st and 2nd Defendants are not entitled to hold themselves out to be directors of the Plaintiff and an injunction to restrain them from holding the same, damages for trespass and misrepresentation. [20] After a full trial the learned Judicial Commissioner (JC) ruled, among others, that Datuk Chai was absolutely entitled to the Plaintiff’s shares and could transfer the said shares to his nominees. 9 [21] The material findings made by the learned JC which is relevant for the purpose of assessment of damages is as follows – P(1). Dr. Mansur [1st Defendant] had trespassed on BTP's Land [67] I am satisfied that BTP [Plaintiff] had proven on a balance of probabilities that Dr. Mansur had trespassed on BTP's Land (Dr. Mansur's Trespass). Such a finding of fact is premised on the following evidence and reasons:

Dr. Mansur had admitted during cross-examination and re-examination that Dr. Mansur was at the Site (BTP's Land) on 12.9.2014 to show the boundaries of BTP's Land to Datuk Kumar. On 12.9.2014, Dr. Mansur was no longer a director of BTP. Hence, Dr. Mansur had no authority or justification to enter BTP's Land on 12.9.2014; and

Encik Muhammad had testified that Dr. Mansur had entered BTP's Land with, among others, Datuk Kumar. [68] In view of Dr. Mansur's Trespass, I grant the following relief to BTP:

compensatory damages for any loss or damage suffered by BTP as a result of Dr. Mansur's Trespass to be assessed by the learned Registrar pursuant to Order 37 rule 4(a) RC …

a perpetual injunction under s. 51(2) SRA to restrain Dr. Mansur and Puan Siti from entering BTP's Land. I have ordered both the above relief against Puan Siti because she is Dr. Mansur's nominee. P(4). Dr. Mansur's misrepresentation [76] Messrs SM's Demand dated 26.5.2014 had been sent to Menara Bata Address because Encik Shaik had testified that Dr. Mansur 10 had informed Encik Shaik that Dr. Mansur was still running BTP and BTP's address was at Menara Bata Address. I find as a fact that Dr. Mansur had misrepresented matters concerning BTP which had caused loss and damage to BTP (Dr. Mansur's Misrepresentation). Accordingly, I order compensatory damages for any loss or damage suffered by BTP as a result of Dr. Mansur's Misrepresentation to be assessed by the learned Registrar. Such an order is also made against Puan Siti as she is Dr. Mansur's nominee. Q. Court's decision [77] Premised on the above evidence and reasons, the following orders are made:

in the Original Action -

a declaration that Dr. Mansur and Puan Siti are not entitled to hold themselves out as directors of BTP;

a perpetual injunction to restrain Dr. Mansur and Puan Siti from holding themselves out as BTP's directors;

a perpetual injunction to restrain Dr. Mansur and Puan Siti from interfering in any way with BTP's business;

a perpetual injunction to restrain Dr. Mansur and Puan Siti from entering any part of the BTP's Land;

a perpetual injunction to restrain Dr. Mansur and Puan Siti from hindering or preventing BTP or any person engaged or employed by BTP from entering BTP's

general damages for trespass to BTP's Land to be assessed by the Registrar and shall be paid jointly and/or severally by Dr. Mansur and Puan Siti to BTP;

general damages for misrepresentation to be assessed by this court and shall be paid jointly and/or severally by Dr. Mansur and Puan Siti to BTP; 11

interest at the rate of 5% per annum on assessed damages from the date of assessment until the date of full payment of assessed damages. Plaintiff’s claim for damages [22] The Plaintiff submitted the following claim for purpose of assessment of damages before the Deputy Registrar – NO PARTICULARS TOTAL CLAIM 1

Payments made for the engagement of a security firm to manage security services for the period of September 2014 to January 2016 for a sum of RM337,872.60;

(ii) Judgment sum paid in Shah Alam Sessions Court case for a sum of RM155,515.87; and

(iii) Payments made to Messrs Shaik Mohamed for a sum of RM850,000.00. [24] The Plaintiff did not appeal against the Deputy Registrar’s decision dismissing their claims in respect of the overhead costs, engagement of project management consultant and legal fees. [25] The 1st and 2nd Defendant appealed against the award made by the Deputy Registrar. 13 Preliminary issue by the 1st and 2nd Defendants [26] The sole witness of the Plaintiff is Mr Ng Yin Meng (NYM). NYM is neither a director of the Plaintiff nor is he a shareholder of the Plaintiff. NYM is a director of KL Northgate the company which entered into the JV Agreement to resuscitate and revive the Selayang Springs Project. [27] The 1st and 2nd Defendants dispute the right of KL Northgate to stake a claim in the assessment proceeding because damages were ordered to be paid to the Plaintiff and not KL Northgate. [28] In respond to the said issue the Plaintiff pointed out that vide the JV Agreement (pages 1 – 17 Bundle B (Plaintiff’s Additional Bundle of Documents [assessment of Damages] Volume 1) ) entered into between the Plaintiff and KL Northgate, Plaintiff had given to KL Northgate the right and power to continue and complete the development of the Selayang Springs Project. This intention is stated in the preamble of the JV Agreement which reads as follows - The Landowner (Plaintiff) and the Developer (KL Northgate) have both agreed to enter into this Joint Venture (JV) Agreement and the Plaintiff shall grant to KL Northgate the right and power to continue and complete the development 14 on the developed portion and to implement, undertake and complete overall development on the undeveloped portion of the Development Land... [29] The right to KL Northgate to, among others, manage the development is provided in Clause 3.6 of the JV Agreement which states – The Developer (KL Northgate) shall be solely responsible for all matters pertaining to but not limited to the sale, administration management and financial functions of the Development and shall carry out all functions relating to the Development... [30] Plaintiff also referred to a power of attorney (pages 18 – 23 Bundle B (Plaintiff’s Additional Bundle of Documents [Assessment of Damages] Volume 1) ) where the Plaintiff had authorised KL Northgate to make payments and deal with the land on behalf of the Plaintiff. The Plaintiff contends pursuant to the provisions in the Power of Attorney, KL Northgate has the power to deal with all the claims on behalf of the Plaintiff including to claim damages from the 1st and 2nd Defendants. [31] My perusal of the JV Agreement and the Power of Attorney shows that both the documents are executed simultaneously. This is clearly stated in cause 5.1 of the JV Agreement. The said clause also provides the Power of Attorney is for valuable consideration in favour of KL 15 Northgate so as to enable KL Northgate to deal with all matters relating to the Selayang Springs Project. [32] Whereas via the Power of Attorney (also dated 19 August 2014) the Plaintiff as the donor appointed KL Northgate as its true and lawful attorney to deal with all matters relating to the development of the Selayang Spring Project by KL Northgate. By the Power of Attorney, KL Northgate is authorised to do for the Plaintiff and in the Plaintiff’s name and on behalf of the Plaintiff to execute, to deal with, take charge of oversee manage exercise, perform all or any acts or powers including –

To oversee, supervise, manage and coordinate the development of the Development Land and perform whatsoever as shall be necessary for the purpose of the development of the Development Land including but not limited to acting as the Project Manager and Project Coordinator and/or cause all these to be done, including without limitation, the procurement and/or appointment of contractors, consultants, architects, engineers and staff/employees. …

to state, settle, adjust, compound and compromise all accounts, claims demands and difference between ourselves and any other person or persons and if advisable to refer any such matters to arbitration and for that purpose to sign, seal and execute any agreement or reference or any instrument necessary.

to warn off and prohibit and if necessary proceed against in due form of law of all trespassers including squatters occupying the Development 16 Land on the Development Land or any part thereof and to take appropriate steps whether by action or otherwise to abate all nuisance. [33] It was also the intention of the donor and donee that the powers given to under the Power of Attorney is to be given the widest interpretation. This intention is recorded in the following provision – AND we hereby declare that the powers herein given to the Donee shall be given the widest interpretation and shall be construed as an express authority to the Donee to act in a deal with our matters or affairs as herein provided as fully and effectually as we could do in relation to the Development Land. [34] Considering the wide power given to KL Northgate in relation to the management and development of the Selayang Springs Project, it is legally right for KL Northgate to come forward and put up the claim against the 1st and 2nd Defendant for and on behalf of the Plaintiff. This is because the terms of the JV Agreement and the Power of Attorney (both the documents must be read together) are clear – KL Northgate is to continue and complete the development of the Selayang Springs Project and to achieve that purpose KL Northgate is equipped with all the necessary powers to deal, manage and take the necessary acts or steps as may be necessary in relation with the said project. 17 [35] The order made by the learned JC for damages to be assessed is in relation to damage suffered by the Plaintiff as a result of the acts of the 1st and 2nd Defendants in relation to the development of the Selayang Springs Project. As such KL Northgate who is authorised by the Plaintiff to do any act which is deemed necessary for the purpose of completing the development of the Selayang Springs Project is competent to claim the damages against the 1st and 2nd Defendant for and on behalf of the Plaintiff. In this respect I am in agreement with the decision of the Deputy Registrar in dismissing the preliminary issue raised by the 1st and 2nd Defendants. The law [36] As provided in s. 101 of the Evidence Act 1950, whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts must prove that this facts exist. [37] Accordingly in this case the Plaintiff bears the burden of proving the damage or loss and the damages they claim. In Tan Geok Khoon & Gerard Francis Robless v Paya Terubong Estate Sdn Bhd [1988] 2 MLJ 672, Edgar Joseph Jr J (as he then was) referred to the case of Boham-Carter v Hyde Park Hotel [1948] 64 TLR 177 and said – 18 This brings to my mind the famous words of Lord Goddard in Bonham-Carter v Hyde Park Hotel (1948) 64 TLR 177: "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages'. They have to prove it." [38] For purpose of allowing Plaintiff’s claim for damages and compensation it is therefore essential for the Plaintiff to prove her loss and damage so as to enable this court to order compensation and damages and to place the Plaintiff in a position that, as if the loss and damage has never occurred. This legal principle is enunciated in the case of Subramaniam Paramasivam & Ors V. Malaysian Airline System Bhd [2002] 1 CLJ 230 – In attempting to measure the damages that may be awarded to the plaintiffs two basic principles of assessment must first be understood. The first is with respect to its function. As Lord Blackburn said in Livingstone v. Rawyard Coal Co. [1880] 5 App. Cas 25 at 39, damages is: that sum of money which will put the party who has been injured, or who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. 19 The second is a corollary of the first - that in awarding damages, the plaintiff should not be allowed to profit by it. The principle is enunciated in the Federal Court case of Tan Sri Khoo Teck Puat v. Plenitute Holdings Sdn Bhd [1994] 3 MLJ 777 wherein Edgar Joseph Jr FJ speaking for the panel said at p. 788: It goes without saying that the effect of allowing the plaintiff's claim is to put him in a better position than he would have been if there had been no breach, then this would be contrary to the principles enunciated above. …. There is yet another principle one must be acquainted with - that a claimant must prove his loss… To 'prove', in the context of the speech of Lord Goddard means to provide some form of evidence sufficient to convince the decider to the point that he believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act on the supposition that it exists. (See s. 2 definition of 'prove' in the Evidence Act 1950.) Finding of court Payments made for the engagement of a security firm to manage security services for the period of September 2014 to January 2016 for a sum of RM337,872.60. [39] The Defendant objected to the above claim on the ground that the amount claimed is paid for by KL Northgate and not the Plaintiff. Under 20 the joint venture agreement between the Plaintiff and KL Northgate, KL Northgate is required to keep the site secured. As such the amount claimed would have been incurred anyway. [40] As stated above I am of the view that KL Northgate is competent, by virtue of the JV Agreement read together with the Power of Attorney is legally competent to claim the damages ordered to be paid to the Plaintiff. [41] The Defendants’ objection to the claim was rejected by the Deputy Registrar on the following reasons – Again, the Court disagrees with the contention of the Defendant. As proven in the main suit, there was a trespass occurred at the site by the Defendant and to safeguard the site from further trespass, security personnel must be put in place. It does not matter whether the security guards were place to safeguard the construction site from other form of dangers apart from the trespass. It was there to ensure that no further trespass occurs (emphasis added). As a result of the D1’s act of trespassing into the site, the Plaintiff had to engage security services to man the area. As for the amount claim, it is clear from the invoices exhibited by the Plaintiff in Bundle A (pages 6 – 22) that the Plaintiff had spent RM337,872.60 to hire security services to protect the site from any trespass from the time of the trespass in September 2014 until the date of the completion of the trial in January 2016. The validity of the invoices was never challenged by the Defendant. 21 [42] The assessment exercise is carried out pursuant to the decision and order made by the learned JC at the end of the trial. As such as the Deputy Registrar correctly pointed out in his ruling that the scope of assessment must be limited to the order made by the learned JC. In so far as the order in respect of trespass, the order made by the learned JC is as follows – General damages for trespass to be assessed pursuant to Order 37 of Rules of Court 2012 and be paid jointly and/or severally by the 1st and 2nd Defendants to the Plaintiff; [43] By the said order it would appear that the scope of assessment in so far as trespass is concerned is wide and encompassing. However such order must be read in context. Based on the relevant passages from the written judgment of the learned JC which is reproduced above, the damages which need to be determined is in relation to the damage suffered by the Plaintiff as a result of the trespass committed by the 1st Defendant. It was a finding of fact by the learned JC that the 1st Defendant had trespassed on the Plaintiff’s land on 12 September 2014 because he was no longer a director of the Plaintiff and therefore has no authority or justification to enter the Plaintiff’s land. 22 [44] The Plaintiff’s claim for the payment for security services made by them through KL Northgate is for the period commencing 10 September

This means at the time when the 1st Defendant trespassed on the Plaintiff’s land, the security firm Sasa Agency had already been employed. This is evident from the evidence in chief of the NYM the director of KL Northgate (see Q8, A8 and Q9, A9 of NYM Witness Statement) and letter of appointment dated 10 September 2014 issued by KL Northgate to the Sasa Agency. This is confirmed by NYM during cross-examination – So, you agree with me, Mr Ng, that the security personnel were already employed by KL Northgate on 12.9.2014 Yes [45] When questioned during cross-examination NYM about the purpose of engaging the security services, NYM said – … Would you agree with me, Nr Ng, that you did not employ the security services as a result of the trespass committed by Dr. Mansur Yes 23 You would agree with me the employment of security services was an incidental cost to protect the land which you bought – Yes, yes [46] NYM’s testimony during re-examination is as follows – … you were asked whether do you agree whether the security forces were not employed as a result of the trespass of Dr. Mansur. And you answered yes. Why did you …why… can you clarify to Court why did you say so? Yang Arif for all project sites, we employ security services. And also due to increase in threat that is trespassing, as well as activity of thugs coming to our site, we need to double – … we have to increase the security measures which is provides under our contract with our security firm. That is why there is a cost to that additional security measures [47] Based on NYM’s testimony it is a requirement imposed by the local authority for a construction site like the Selayang Spring Project be properly managed and maintained (see Notes of Proceedings page 22 at line 34 onwards). As such the Plaintiff employ the services of Sasa Agency man the site in order to ensure the construction site is properly managed. As conformed by NYM, Sasa Agency had already been engaged to manage the security of the construction site when the 1st Defendant trespassed on the Plaintiff’s land on 12 September 2014. 24 [48] NYM testified that they have to increase security services because there were threat of the site being trespassed and thugs activities at the site. However there is no proof to support the Plaintiff’s claim. Firstly no police report were lodged (which would be the most sensible and reasonable step to take) and not even the security personnel who guarded the site were called to give evidence in respect of the alleged threat of trespass and thugs activities. Secondly there were no evidence adduced to show the additional costs purportedly incurred by the Plaintiff to undertake the additional security measures to fend off trespassers and thugs from the construction site. [49] In this respect it is my view that since the cost of employing security services is an ancillary cost, the Plaintiff should only be entitled to the difference between the cost that they would have incurred under normal circumstances and the additional cost they incurred as a result of the trespass by the 1st Defendant. Furthermore the Plaintiff must also account for the period the services is required, namely, why the additional security services is required for a period of about 16 months. More importantly, it is incumbent upon the Plaintiff to prove that the threat of trespass and thugs activities (which Plaintiff alleged has caused an increase in the security costs) is real and it must relate to the trespass committed by the 1st Defendant. This is so because the 25 damages ordered by the court is intended to compensate the Plaintiff company for the loss or damage suffered by it as a result of the 1st Defendant’s trespass. [50] However there is no evidence led by the Plaintiff to show the sum RM337,872.60 was the loss or damage it suffered as a result of 1st Defendant trespassing the Plaintiff’s land on 12 September 2014. The sum RM337,872.60 which NYM admits to be an incidental cost is a cost which the Plaintiff as a developer of the Selayang Springs Project would have necessarily incurred under any circumstances for purpose of ensuring the security of the construction site. [51] The fact that the Plaintiff had produced invoices in respect of the payment made for the security services and that the invoices were not challenged by the Defendants does not necessarily validate the Plaintiff’s claim. For Plaintiff to succeed in its claim for damages the Plaintiff must first prove the damage which is a consequence of the 1st Defendant trespass followed by the damages which essentially quantify the damage in monetary value. As there is no evidence adduced to prove the same, the Plaintiff is therefore not entitled to the sum claimed in respect of the sum of RM337,872.60 for engaging the services of a security firm. 26 Judgment sum paid in Shah Alam Sessions Court case for a sum of RM155,515.87 [52] NYM explained the basis of Plaintiff’s claim – Q22 What are the losses suffered by the Plaintiff because of the misrepresentation done by Dr. Mansur? A22 Dr Mansur continued representing to the world at large that he was still a director of the Plaintiff after he has resigned and sold his shares in the Plaintiff In particular, Dr Mansur had instructed solicitors to defend an action filed vide Shah Alam Sessions Court No. A52NCC-245- 12/2013 purporting to act on behalf of BTP. Dr Mansur had even affirmed an affidavit on 28.2.2014 purportedly on behalf of BTP. The claim against the Plaintiff was allowed and as a result the Plaintiff suffered loss and damage as it was forced to pay the judgment sum of RM155, 515.87 [53] Based on the judgment which is at page 4 Bundle D (Plaintiff’s (In Original Suit) Additional Bundle of Documents [Assessment of Damages] Volume 3), the said judgment was entered against the Plaintiff, 1st and 2nd Defendants in the sum of RM155,515.87 pursuant to Order 14 of the RoC 2012. NYM informed the court that there was no appeal filed against the decision. [54] It is not disputed by the 1st Defendant that the affidavit at page 1 – 3 of Bundle D (Plaintiff’s (In Original Suit) Additional Bundle of 27 Documents [Assessment of Damages] Volume 3) was signed by the 1st Defendant without the approval of the Plaintiff. At the time the affidavit was signed, the 1st Defendant had already ceased to be a director and shareholder of the Plaintiff. In fact the learned JC had made a finding that the 1st Defendant had wrongfully held himself out as the Plaintiff’s director in the said affidavit and made a declaration that the 1st and 2nd Defendant were not entitled to do so. [55] During cross-examination NYM admit that the sum RM155,515.87 is an amount which was owed by the Plaintiff to Lifomax Woodbuild Sendirian Berhad (Lifomax Woodbuild) and has to be paid. Yet, the Plaintiff is claiming this sum from the 1st Defendant as the Plaintiff says the said sum paid by the Plaintiff to Lifomax Woodbuild is a damage or loss to them because of the 1st Defendant misrepresentation. I find this too simple an argument. No doubt there is a judgment entered against the Plaintiff but the said sum is also due and payable to Lifomax Woodbuild. [56] Based on the affidavit filed by the 1st Defendant purportedly to be on behalf of the Plaintiff, the claim made against the Plaintiff in the Shah Alam Sessions Court is in respect of goods sold and delivered by Lifomax Woodbuild to the Plaintiff. In his evidence in chief the 1st 28 Defendant testified that Lifomax Wooodbuild is the supplier appointed by the Plaintiff to supply construction materials to the Selayang Springs Project. In other words Lifomax Woodbuild is a creditor of the Plaintiff. And the court has ordered for the monies owing by the Plaintiff to Lifomax Woodbuild to be paid. So how is this a loss and damage to the Plaintiff?. In fact if one were to peruse the affidavit affirmed by the 1st Defendant, the 1st Defendant resisted the claim made by Lifomax Woodbuild against the Plaintiff. For whatever it is worth, the 1st Defendant is protecting the Plaintiff against the claim by Lifomax Woodbuild. [57] The Plaintiff’s complaint, which is validly so, against the 1st Defendant is the misrepresentation made by the 1st Defendant in the affidavit that he is the Managing Director of the Plaintiff when in actual fact he was no longer so at the time he deposed the affidavit. But the Plaintiff did not at any point in time complain that the contents of the affidavit was incorrect or false which ultimately led to summary judgment entered against the Plaintiff. The misrepresentation complained of is in respect of the 1st Defendant’s authority and capacity of to deposed the affidavit and not misrepresentation of the facts deposed by the 1st Defendant in the affidavit resisting the summary judgment application by Lifomax Woodbuild. 29 [58] The above factor coupled with the fact that there was no appeal filed by the Plaintiff against the Sessions Court decision is, to my mind, lead to a reasonable inference that the sum is owing to Lifomax Woodbuild as creditor to whom the Plaintiff would have to pay it in any event. [59] The Plaintiff’s assertion through NYM that they did not appeal because the Plaintiff is awarded damages is a fallacy. The judgment under Order 14 RoC 2012 was entered in favour of Lifomax Woodbuild on 19 March 2014, whereas the court order for damages to be awarded and assessed was only made in February 2016. As such when the judgment under Order 14 RoC 2012 was entered against the Plaintiff in 2014 the Plaintiff could not have possibly known that the Plaintiff will definitely win its case (filed in September 2014) against the 1st and 2nd Defendants and awarded damages. [60] As stated earlier, it is incumbent upon the Plaintiff to first prove they have suffered losses or damage as a result of the 1st Defendant’s misrepresentation. On the facts I find the Plaintiff has failed to prove that the sum RM155,515.87 is a loss or damage arising out of the 1st Defendant misrepresenting himself as the managing director of the Plaintiff. 30 Payment in the amount of RM850,000.00 made to Messrs. Shaik Mohamed [61] NYM’s evidence in chief is as follows – Q27. Refer to pages 69 – 70 of the Plaintiff’s Bundle of Documents. What are these documents? A27. On 14.10.2014, the Plaintiff was served with a Notice pursuant to Section 218 of the Companies Act 1965 (“218 Notice”). The 218 Notice was issued by Messrs Adam Abdullah & Mani on behalf of Shaik Mohamed for the total sum of RM1,257,055.50 (“the Demanded Sum”). Shaik Mohamed alleged that the Demanded Sum is for legal fees for preparing Sale and Purchase Agreements, Deed of Mutual Covenants and other related works related to the Selayang Springs Project based on the letter of admission issued by Dr Mansur on 17.7.2014 (letter at page 63 of the Plaintiff’s bundle of documents).