Bast Investment Pte. Ltd. v 1. ) Musang Durians Frozen Food (M) Sdn. Bhd. (WA-22NCC-38-01/2022)

MUSANG DURIANS FROZEN FOOD (M) SDN BHD (No. Syarikat: 1180825-K)

JOHN LEE SIEW NENG (No. K/P: 651119-135623) -DEFENDAN GROUNDS OF JUDGMENT A. Introduction [1] The plaintiff filed this action to seek amounts outstanding under a loan it provided to the 1st defendant. The defendants filed a counterclaim, seeking inter alia, a declaration that the plaintiff is not entitled to claim the amounts outstanding. S/N AmEdc5agUCq5Lanka4Gjw [2] After a full trial, the court allowed dismissed the defendants counterclaim. The reasons for this decision are set out below. B. Background Facts [3] The 1st defendant is in the business of trading in durian fruits and other related products. At the time of its incorporation in 2016, the directors and shareholders of the 1st defendant were the 2nd defendant DW1 [4] By a subscription agreement dated 20 August 2017, the plaintiff subscribed to 50% of the shares in the 1st defendant. The 2nd defendant held 40% of the shares in the 1st defendant, while DW1 held 10% of the shares. [5] The plaintiff, the defendants and DW1 also entered into a dated 20 August 2017 to regulate their relationship as shareholders of the 1st defendant. The salient terms of the SHA are as follows: a. By clause 10.1, the plaintiff agreed to provide a shareholder s loan of up to a maximum of RM30,000,000 to the 1st defendant, in the event the 1st defendant requires additional funds for working capital. The clause further states that the 2nd defendant is required to provide a personal guarantee for repayment of 50% of the outstanding loan amount. S/N AmEdc5agUCq5Lanka4Gjw b. By clause 11.1, the 2nd defendant guaranteed that the 1st defendant shall have profit after tax of RM20,000,000 at the end of two years from the first drawdown of the loan [6] Between November 2017 to January 2019, the plaintiff provided additional funding of RM26,040,000 to the 1st pursuant to clause 10.1 of the SHA. The 1st defendant repaid RM11,950,000 to the plaintiff, leaving a principal balance of RM14,090,000. [7] The plaintiff is seeking the following: a. The outstanding principal loan and interest, totalling RM15,452,109.63, against the 1st defendant and b. The guaranteed amount of 50% of the Outstanding Amount, totalling RM7,726,054.82, against the 2nd defendant . [8] main defence is that directors of the 1st defendant who are nominees of the plaintiff have frustrated, hampered and/or constrained the 1st business, which induced or caused a breach of the SHA. [9] The defendants filed a counterclaim seeking, amongst others, a declaration that the plaintiff had induced or caused a breach of the SHA, a declaration that the plaintiff is estopped from claiming the Outstanding Amount and the Guaranteed Amount, and other losses and damages. The S/N AmEdc5agUCq5Lanka4Gjw 2nd defendant also claimed loss of remuneration suffered by him between August 2017 to May 2020. C. Issues [10] Based on the facts set out, the court considered the following issues in the final determination of this action: a. Whether the Outstanding Amount is due and payable by the 1st defendant to the plaintiff; b. Whether the Guaranteed Amount is due and payable by the 2nd defendant to the plaintiff; and c. Whether the 2nd defendant is entitled to claim the loss of his remuneration. D. Issue 1: Whether The Outstanding Amount Is Due And Payable By The 1st Defendant To The Plaintiff The terms of the SHA [11] In examining this issue, I first looked to the SHA, and specifically clause 10.1 which states that: In the event the COMPANY requires additional funds for working capital requirements, BAST agree to provide RM30,000,000 to the COMPANY which shall be S/N AmEdc5agUCq5Lanka4Gjw available for 3 years from 1 November 2017 ("Loan") to fulfil such additional working capital requirements on the following terms and conditions: a) DATO JOHN shall provide a personal guarantee for repayment of 50% of the outstanding Loan amount. b) BAST shall be entitled to charge interest, calculated on monthly basis on the outstanding Loan amount, at the following rates:

If the interest imposed on BAST by financial institutions for provision of the Loan is 6% per annum or higher, the interest rate will be such rate less 1% per annum.

(ii) If the Interest imposed on BAST by financial institutions for provision of the Loan is between 5% per annum and 6% per annum, the interest rate will be such rate less 0.5% per annum.

(iii) If the Interest imposed on BAST by financial institutions for provision of the Loan is below 5% per annum, the interest rate S/N AmEdc5agUCq5Lanka4Gjw (emphasis added) [12] I then considered that the plaintiff had provided the Loan, amounting to RM26,040,000 to the 1st defendant, pursuant to clause 10.1 of the SHA. The 1st defendant had repaid part of the Loan amounting to RM11,950,000 to the plaintiff, and the principal amount of RM14,090,000 remains unpaid. [13] These facts are undisputed, as the 1st defendant did not deny receiving the Loan, and repaying part of the Loan. The defendants defences [14] Instead, the defendants main defences are that: a. There is no timeframe to repay the Loan; and b. The plaintiff frustrated, hampered and/or constrained the 1st , which induced or caused a breach of the SHA. Is there a timeframe to repay the Loan? [15] The terms of the SHA would shed light on this question. The st defendant is set out in clause 10.1 of the SHA. The clause further states that: a. The loan shall be available for three years from 1 November 2017; and S/N AmEdc5agUCq5Lanka4Gjw b. The plaintiff is entitled to charge interest on the loan, which is calculated based on the interest charged on the plaintiff by financial institutions, arising from the provision of the loan to the 1st defendant. [16] Clause 10.3 of the SHA also provides as follows: years from 1 November 2017, each Shareholder shall assist the COMPANY in procuring external borrowings from financial institutions in Malaysia failing which BAST shall extend the availability of the Loan for another year at the same terms and conditions [17] In interpreting the terms of the SHA, I am guided by Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597. The Federal Court provided the following guidelines on the interpretation of contracts: [42] Here it is important to bear in mind that a contract is to be interpreted in accordance with the following guidelines. First, a court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix forming the background to the transaction. Second, the factual matrix which forms the background to the transaction includes all material that was reasonably available to the parties. Third, the interpreting court must disregard any part of the background that is declaratory of subjective intent only. Lastly, the court should adopt an objective approach when S/N AmEdc5agUCq5Lanka4Gjw interpreting a private contract. See Investors Compensation Scheme Ltd v West Bromwich Building SocietyInvestors Compensation Scheme Ltd v Hopkins & Sons (a firm) & OrsAlford v West Bromwich Building Society & OrsArmitage v West Bromwich Building Society & Ors [1998] 1 All ER 98. As Lord Clyde said in Bank of Credit and Commerce International SA (in liquidation) v Ali & Ors [2001] 2 WLR 735 : The knowledge reasonably available to them (that is to say the parties to the contract) must include matters of law as well as matters of fact. The problem is not resolved by asking the parties what they thought they intended. It is the imputed intention of the parties that the court is concerned to ascertain. The parties may well have never applied their minds to the particular eventuality which has subsequently arisen, so that they may never in fact have had any conscious intention in relation to that eventuality. It is an objective approach which is required and a solution should be found which is both reasonable and realistic. The meaning of the agreement is to be discovered from the words which they have used read in the context of the circumstances in which they made the agreement. The exercise is not one where there are strict rules, but one where the solution is to be found by considering the language used by the parties against the background of the surrounding circumstances. S/N AmEdc5agUCq5Lanka4Gjw [43] The most recent statement of the guideline to interpretation of contracts statutes and other instruments is to be found in Attorney General of Belize & Ors v Belize Telecom Ltd [2009] UKPC 10, where when delivering the advice of the board, Lord Hoffmann said: The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed. See Investors Compensation Scheme Ltd v West Bromwich Building Society Investors Compensation Scheme Ltd v Hopkins & Sons (a firm) & OrsAlford v West Bromwich Building Society & OrsArmitage v West Bromwich Building Society & Ors [1998] 1 All ER 98 at pp 912 913 [1998] 1 WLR

It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author S/N AmEdc5agUCq5Lanka4Gjw (emphasis added) [18] Applying Berjaya Times Squares (supra) to the case before this court, in interpreting the SHA and ascertaining the intention of the parties regarding the provision of funding by the plaintiff to the 1st defendant, this court: a. is entitled to consider the factual matrix forming the background to the SHA; b. must take an objective approach, which would lead to a reasonable and realistic outcome; and c. must consider the meaning which the terms would convey to the parties who would have had the background knowledge of the transaction. [19] Reading the SHA in the manner as guided by Berjaya Times Squares (supra), I found there to have been an intention for a timeframe to be imposed on the provision of a loan to the 1st defendant, and consequently on repayment of the loan. [20] There are two reasons for this finding. [21] First, the SHA imposes timelines on the availability of a loan to the 1st defendant. Clause 10.1 states that the loan shall be available for three years from 1 November 2017. Clause 10.3 further states that after the expiry of the three years from 1 November 2017, the availability of the loan shall be extended for a further year, if external borrowings cannot be S/N AmEdc5agUCq5Lanka4Gjw procured. Save for these provisions, there is no further provision in the SHA on the extension of the availability period for the loan. [22] Thus, the wording of clauses 10.1 and 10.3 reflects that the parties had intended for a loan to be provided to the 1st defendant within fixed timeframes. With these timeframes imposed, it is unlikely for the parties to the SHA to have intended for the plaintiff s funding to be perpetual. [23] The second reason relates to clause 10.1(b) of the SHA, which provides that the plaintiff is entitled to charge interest on the loan granted to the 1st defendant. The interest that the plaintiff is entitled to charge is calculated based on the interest charged on the plaintiff by financial institutions, arising from the provision of a loan to the 1st defendant. It would appear from clause 10.1(b) that the parties had anticipated a back-to-arrangement involving the plaintiff procuring a loan, and in turn, providing a loan to the 1st defendant pursuant to the SHA. [24] I accepted st defendant, through a USD15,000,000 bank facility obtained by the , and that Serial was required to repay its loan within three years from the first drawdown in November 2017. [25] From the wording of clause 10.1(b) which provides for the imposition of interest on the Loan, it is likely that the parties had intended for the repayment of the Loan to be in line with obligations to Maybank Singapore. Following this, the Loan provided to S/N AmEdc5agUCq5Lanka4Gjw the 1st defendant would necessarily be due and payable within three years from its first drawdown, also in November 2017. [26] In my considered opinion, the finding that the terms of the SHA impute an intention by the parties for there to be a timeline for the payment of the Loan, which is within three years from the date of its first drawdown, is the only conclusion that would lead to a reasonable and realistic outcome for the SHA. [27] Further and in any event, I am of the view that the time for repayment of the Loan cannot remain at large although there is no timeline imposed on repayment in the SHA. Section 47 of the Contracts Act 1950 provides as follows: or is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. (emphasis added) [28] Thus in this case, as there is no specified timeframe for the repayment of the Loan, the Loan must be paid within a reasonable time. Based on the facts of the case, I determined the repayment of the Loan by first taking into account the loan obtained by Serial from Maybank Singapore, which was utilised for the provision of the Loan to the 1st defendant. It is in evidence that the loan from Maybank Singapore is due and payable within three years from November 2017. S/N AmEdc5agUCq5Lanka4Gjw [29] I also considered the correspondences exchanged between the solicitors of the plaintiff and the defendants in 2021. The plaintiff had demanded amounts due under the Loan from the defendants, by way of letter dated 23 April 2021. In the letter, highlighted that the balance of the Loan would have to be repaid to the plaintiff by the end of October 2020. The defendants responded by way of their . In this letter, the defendants did not deny that the Loan was to be repaid by the end of October 2020. Instead, their denial of liability was premised on the allegation that the plaintiff had frustrated, hampered and/or constrained the 1st business, which impaired the 1st [30] Thus, taking into account the facts of this case, my considered view is that the reasonable time for the repayment of the Loan would be October 2020, which is approximately three years after the first disbursement of the Loan in November 2017. Did the plaintiff frustrate, hamper and/or constrain the 1st business? [31] The 2nd defence relied on by the defendants is that the plaintiff had frustrated, hampered and/or constrained the 1st which induced or caused a breach of the SHA. [32] I examined the allegations raised by the defendants to support this defence, namely: S/N AmEdc5agUCq5Lanka4Gjw a. That a representative of the plaintiff, Derek Goh Bak Heng nd defendant during a board meeting on 23 January 2019 ; b. That the plaintiff had abandoned the 1st defendant; and c. That the plaintiff had usurped the 2nd executive role in the 1st defendant. [33] From my assessment of the evidence before the court, I find the allegations to be unsubstantiated. [34] The defendants relied on a video recording of the January 2019 Meeting to support their allegation of the assault. Having reviewed the recording, I am of the view that the allegation is exaggerated. The recording showed a heated exchange between PW5 and the 2nd defendant, which arose from PW5 confronting the 2nd defendant on his inability to meet the Profit Guarantee of RM20,000,000 that he had committed to under clause 11.1 of the SHA. Following the heated exchange, PW5 pushed the 2nd defendant, as the 2nd defendant was provoking and approaching him with aggression. However, the 2nd defendant was not shaken by PW5 continued to raise his voice and shout profanities at PW5. [35] What appeared from the video is that the 2nd defendant had acted in a more aggressive manner than PW5. As such, I find it to be unlikely that the events during the January 2019 Meeting could have led to the Instead, it was the 2nd defendant who aggressively walked out of the meeting, S/N AmEdc5agUCq5Lanka4Gjw refusing to continue with the meeting and forcefully pounding the table on his way out. [36] My observation of the 2nd defendant in the course of his testimony is that he is an extremely strong-willed individual, who displayed a lack of respect for his peers, partners and any level of authority. This was illustrated by his continued insistence on his position even after being proven wrong. While being taken through the transcript of the January 2019 Meeting which was verified by both solicitors for the plaintiff and the defendants the 2nd defendant denied the content of the transcript, boldly insisting that he did not utter the words transcribed. His hubristic behaviour has led me to find him to be an untruthful and unreliable witness, who does to hesitate to raise uncorroborated allegations. [37] It is with this observation in mind that I considered the allegation that the plaintiff had abandoned the 1st defendant, and found this allegation to be unsubstantiated. [38] The allegation arose from the following claims raised by the defendants, which I shall examine in detail: a. The claim that the plaintiff had terminated the 1st : I considered the minutes of the board meeting of the 1st defendant on 20 August 2018, which state that the 1st employees were terminated as a result of the realignment of the 1st The realignment of the business was in any event agreed to by the 2nd defendant, who did not express any disagreement or dissent on this issue. It S/N AmEdc5agUCq5Lanka4Gjw is also in evidence that during a board meeting on 29 November 2018, the 2nd defendant was urged by PW1 to employ more workers for the 1st defendant. As such, I find the claim that the plaintiff had abandoned the 1st without basis. b. The claim that the plaintiff had refused to allow payments to be made to authorities, namely the Customs Department and the Inland Revenue Board: From documentary evidence available before the court, these payments are penalties and outstanding amounts due as a result of inaccurate statements of accounts filed by the 1st defendant and the 1st defendant s failure to provide supporting documents during tax filings. The 2nd defendant had engaged with authorities without any mandate from the board of directors of the 1st defendant, and thereafter claimed that an agreement had been reached with the authorities on these payments. What is clear from available evidence is that there was no outright refusal by the plaintiff to make these payments. Rather, the plaintiff had sought confirmations on a few issues, including its obligation to pay taxes incurred prior to the date of the SHA, the inaccuracies in the payment figures and the final payment amounts. In my view, the plaintiff is entitled to seek these confirmations, particularly as its representatives were not privy to discussions between the 2nd defendant and the authorities. The confirmations sought by the plaintiff cannot be equated to a refusal to S/N AmEdc5agUCq5Lanka4Gjw allow payments to be made to authorities, or an abandonment of the 1st defendant. c. The claim that the plaintiff refused to allow the 1st defendant to pay its bona fide creditors: I examined the background of the 1st creditors, namely Pemborong A&L Sdn Bhd , Maxvogue Sdn Bhd , M Durian Fruits (China) Sdn Bhd , Alocodrand Sdn Bhd, JM Smart Holdings Sdn Bhd and A & L Products Sdn Bhd and noted that they are connected to the 2nd defendant, his wife and DW1, who are their directors and shareholders. I also noted that the debts owed to the Creditors were not recorded in the general ledgers of the 1st defendant. Yet, the Creditors filed suits against the 1st defendant to recover the debt, obtained judgments in default against the 1st defendant and executed these judgments by garnishing the bank accounts of the 1st defendant. The covert manner in which the suits were filed and the judgments in default obtained suggests that the suits filed are tactical manoeuvres carried out by the 2nd defendant to obtain the funds of the 1st defendant. Taking this factual matrix into consideration, the the Creditors is justifiable and cannot be said to be tantamount to the plaintiff abandoning the 1st defendant. [39] Finally, I examined the allegation that the plaintiff had usurped the 2nd st defendant. I find this allegation to S/N AmEdc5agUCq5Lanka4Gjw be unsupported by any evidence. On the contrary, during the 1st , PW1 had stressed that the 2nd defendant was the only executive director of the 1st defendant, and was responsible for the operations and management of the 1st defendant. Both PW1 and PW5 had urged the 2nd defendant to employ more workers and manage the business of the 1st defendant. The 2nd defendant continued to operate and manage the 1st defendant, as evidenced by the agreement dated 23 January 2019, entered into between the 1st defendant and Nature Goodness Food I on the purchase of durian paste by Nature Goodness. It is not in dispute that this transaction was facilitated by the 2nd defendant, and continued even after the January 2019 Meeting. [40] Based on the above, I find the defence raised by the defendants, that the 1st frustrated, hampered and/or constrained by the plaintiff, to be frivolous and scandalous. There is no evidence that the plaintiff frustrated, hampered and/or constrained the 1st induced or caused a breach of the SHA. Is the 1st defendant obligated to pay the Outstanding Amount? [41] As such, I reject the y do not have an obligation to repay the Loan. It is in evidence that the Loan, amounting to RM26,040,000 had been provided to the 1st defendant and that the 1st defendant had repaid part of the Loan amounting to RM11,950,000 to the plaintiff. S/N AmEdc5agUCq5Lanka4Gjw [42] With the rejection of the defences raised by the defendants, I further find that the unpaid portion of the Loan and interest are due and owing by the 1st defendant to the plaintiff. calculation of the Outstanding Amount as at November 2021, which takes into account the unpaid Loan amount of RM14,090,000 and interest calculated at the rate of 5% per annum from 1 January 2020 to 30 November 2021, amounting to RM1,362,109.63. The commencement date for the interest calculation (1 January 2020) is premised on the defendants failing to pay any further interest accrued on the Loan after 2019. E. Issue 2: Whether The Guaranteed Amount Is Due And Payable By The 2nd Defendant To The Plaintiff [43] The Guaranteed Amount arises pursuant to clause 10.1(a) of the SHA, which provides that: [44] Loan was granted by the plaintiff to the 1st defendant subject to the provision of the guarantee by the 2nd defendant. The defendants on the other hand argued that it was merely envisaged at the time of the execution of the SHA that the 2nd defendant will provide a personal guarantee on the repayment of 50% of the outstanding amount of the Loan. Since the 2nd defendant did not execute any personal guarantee to this effect, there remains no guarantee provided by the 2nd defendant for the Outstanding Amount, and the 2nd defendant cannot be liable for the Guaranteed Amount. S/N AmEdc5agUCq5Lanka4Gjw [45] I considered the undisputed fact that there was no written guarantee executed by the 2nd defendant over and above the guarantee provided in clause 10.1(a) of the SHA. Notwithstanding such fact, I find that clause 10.1(a) is sufficient to impose a liability on the 2nd defendant as a guarantor for the Loan. [46] Section 79 of the CA 1950 provides that: a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the "surety"; the person in respect of which default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor". A guarantee may be (emphasis added) [47] Section 80 states: Anything done, or any promise made, for the benefit of the principal debtor may be a sufficient consideration to the surety (emphasis added) [48] It is my considered view that clause 10.1(a) fulfils the legal requirements under sections 79 and 80 of the CA 1950, as it imposes an obligation on the 2nd defendant to perform the promise or discharge the S/N AmEdc5agUCq5Lanka4Gjw liability of a third party (the 1st defendant) in the repayment (of 50%) of the amount outstanding under the Loan. The promise made by the 2nd defendant to repay the 50% of the amount outstanding under the Loan is sufficient consideration for the guarantee provided. [49] On the interpretation of clause 10.1(a), I am again guided by Berjaya Times Squares (supra), where the Federal Court held that the courts should adopt an objective approach when interpreting a contract, with solutions that are reasonable and realistic. [50] In my view, the argument raised by the defendants that the 2nd defendant did not sign the SHA in his capacity as a guarantor and cannot be made liable for the obligation imposed under clause 10.1(a) of the SHA is neither a reasonable nor realistic interpretation of the clause. [51] Clause 10.1 states that the Loan shall be provided: on the following terms and conditions:

DATO JOHN shall provide a personal guarantee for (emphasis added) [52] It is clear from the wording of clause 10.1 that the guarantee provided by the 2nd defendant is a condition of the provision of the Loan. The Loan has been provided to the 1st defendant, and to now argue that the guarantee has not been given although the Loan has been provided S/N AmEdc5agUCq5Lanka4Gjw would effectively ignore the provision of clause 10.1 of the SHA, and the intention of the parties at the time of the execution of the SHA. [53] Thus, I find that clause 10.1(a) of the SHA is sufficient to impose a liability on the 2nd defendant as a guarantor for the Loan. With my earlier finding that the Outstanding Amount is due and owing by the 1st defendant to the plaintiff, it follows that the Guaranteed Amount of RM7,726,054.82, which is 50% of the Outstanding Amount, is due and owing by the 2nd defendant to the plaintiff. F. Issue 3: Whether The 2nd Defendant Is Entitled To Claim The Loss Of His Remuneration [54] nd defendant claimed the loss of his remuneration between August 2017 to May 2020, amounting to RM1,525,776.80. [55] The 2nd clause 11 of the SHA. By clause 11.1, the 2nd defendant provided the Profit Guarantee, which is a guarantee that the 1st defendant shall have profit after tax of RM20,000,000 at the end of two years from the date of the first drawdown of the Loan. The first drawdown of the Loan was in November 2017, and as such, the Profit Guarantee should have been met by October 2019. S/N AmEdc5agUCq5Lanka4Gjw [56] Clause 11.3 provides that:

11.2 In the event that the Actual Profit exceeded the Profit Guarantee, the COMPANY shall pay to DATO JOHN the aggregate of the following: a) RM480,000 per annum as his (emphasis added) [57] of the SHA as the 1st period the Profit Guarantee was provided (November 2017 to October 2019). [58] It is beyond dispute that the Profit Guarantee was not met by the 2nd defendant, and the Actual Profit did not exceed the Profit Guarantee. [59] As such, clause 11.3 has never been triggered, and the 2nd defendant is not entitled to the remuneration he claimed he lost between August 2017 to May 2020.

[60] With the following findings of the court: a. That the Loan was provided by the plaintiff to the 1st defendant, and the principal amount of RM14,090,000 remains unpaid by the 1st defendant; S/N AmEdc5agUCq5Lanka4Gjw b. That the Loan is required to be repaid by October 2020; c. That the plaintiff had not frustrated, hampered and/or constrained the 1st ; d. That the Outstanding Amount is due and payable by the 1st defendant to the plaintiff; e. That the Guaranteed Amount is due and payable by the 2nd defendant to the plaintiff; and f. That the 2nd defendant is not entitled to claim the loss of his remuneration, the plaintiff has thus proven its case, and the defendants have failed to prove their counterclaim. [61] The prayers sought by the plaintiff in paragraph 15 of the statement of claim dated 14 January 2022 are allowed. [62] The court also allowed the further relief sought by the plaintiff pursuant to prayer (f), for the sum Koh Partnership to be remitted to the plaintiff to set off the judgment sum obtained herein. [63] The Stakeholder Sum was paid to Pemborong A&L, Maxvogue and M Durian , a few Creditors of the 1st defendant, pursuant to garnishee orders they obtained in September 2022. After this S/N AmEdc5agUCq5Lanka4Gjw suit was instituted, the plaintiff filed an application for a mareva injunction against the 1st defendant applications by Pemborong A&L, Maxvogue and M Durian to intervene in the Mareva Application on the basis that any order given would affect the garnishee orders. [64] On 7 March 2023, the court dismissed the Mareva Application, and the plaintiff appealed to the Court of Appeal. The COA Order was obtained pursuant to an agreement reached between the plaintiff, the defendants and the Interveners, during the hearing of the appeal. [65] In this action, after considering documentary evidence and testimonies of witnesses, the court had found that the Creditors are not bona fide creditors of the 1st defendant but are instead the corporate façade of the 2nd defendant. The court further found that the suits instituted by the Creditors against the 1st defendant and garnishee orders obtained by the Creditors were tactical manoeuvres which the 2nd defendant put in place to gain access to the 1st follows that the plaintiff is entitled to the Stakeholder Sum, to set off the judgment sum. [66] The defend counterclaim dated 9 March 2022 is dismissed. [67] The court orders the defendants to jointly pay costs of RM80,000 costs in respect of the claim, and RM30,000 in respect of the counterclaim. S/N AmEdc5agUCq5Lanka4Gjw Dated 20 September 2024 ADLIN ABDUL MAJID Judge High Court of Malaya Commercial Division (NCC6) Kuala Lumpur Counsel: Plaintiff : CK Lim (together with Damien Chan, Jeff Ng and Ian Hannibal) of Messrs. Damien Chan, Hannibal & Ng Chambers Defendants : Ragumaren Gopal (together with David Ragumaren) of Messrs. G. Ragumaren & Co S/N AmEdc5agUCq5Lanka4Gjw