Schedule
Jadual Keenam Akta Syarikat 2016 (“AS 2016”); Page 2 of 21 DALAM PERKARA Akta Kontrak 1950 (“AK 1950”); Aturan-aturan 5, 28, 30, 88 and 92 Peraturan 4 Kaedah-Kaedah Mahkamah 2012 (“KM 2012”). ANTARA DAMAI CITY SDN BHD (PENGURUS & PENERIMA DILANTIK) [No. Syarikat: 201301011484 (1041322-H)] … PLAINTIFF 1. DOLOMITE CAPITAL (M) SDN BHD (No. Syarikat: 202401015526) 2. LECCA HOLDINGS (M) SDN BHD (No. Syarikat: 201301042273) 3. TAN SRI DATO’ PADUKA KUA SIAN KOOI (No. K/P: 520901-02-6267) 4. KUA YING-FEI (No. K/P: 850405-02-5830) Page 3 of 21 5. KSK GROUP BERHAD … DEFENDAN - (No. Syarikat: 200101003679) DEFENDAN GROUNDS OF JUDGMENT 1. This is the Plaintiff’s Originating Summons dated 28.8.2025 seeking, inter alia, a declaration that the Termination Notice dated 22.8.2025 was validly issued to terminate the Letter of Agreement on the Standstill and Exclusivity Period dated 6.8.2025 (“the Plaintiff’s application” or “the application”). 2. After considering the affidavits, documents, and submissions of all parties, I allowed the Plaintiff’s application and granted the declaration sought, together with costs. 3. While all the Defendants opposed the Plaintiff’s application, it is to be noted that only the 1st and 2nd Defendants have filed an appeal against this Court’s decision. Accordingly, although I have considered the positions advanced by all parties, these Grounds will focus primarily on the arguments raised by the 1st and 2nd Defendants. A] SALIENT BACKGROUND FACTS 4. The Plaintiff is the developer of a mixed development known as the “8 Conlay Project” in Kuala Lumpur (“the Project”). Page 4 of 21 5. Following the Plaintiff’s default in repayment, receivers and managers (“R&M”) were appointed over the Plaintiff on 5.1.2024 pursuant to debentures granted in favour of Maybank Banking Berhad. 6. Subsequent to the R&M’s appointment, the Plaintiff undertook efforts to procure potential investors or purchasers for the 8 Conlay Project. On 14.5.2024, the 2nd Defendant submitted an initial proposal for the rehabilitation, completion and/or acquisition of the Project. 7. In view of interest from multiple parties, the receivers and managers initiated a restricted request for proposal process on 19.6.2024. Shortly thereafter, the 2nd Defendant obtained a power of attorney from the Plaintiff’s shareholders and major creditors, conferring upon it exclusive authority to negotiate a proposed rescue scheme. 8. The request for proposal process was subsequently withdrawn and, on 10.7.2024, the 2nd Defendant was granted an exclusive arrangement to conduct due diligence and submit a final proposal (“First Exclusive Arrangement”), subject to certain conditions, including the payment of RM5 million. 9. Despite the exclusivity granted, the proposed transaction did not materialise. The evidence shows that issues relating to financing and consortium structure persisted, including the withdrawal of an earlier funding partner and the subsequent Page 5 of 21 introduction of the 1st Defendant as the lead consortium entity on 14.11.2024. 10. Thereafter, a series of revised proposals were submitted by the 1st Defendant throughout late 2024 and early 2025. However, no agreement could be reached on the final terms, and on 14.7.2025, the Plaintiff terminated the First Exclusive Arrangement. 11. Following the termination, the 1st Defendant submitted a further revised proposal on 1.8.2025. This led to the execution of the Letter of Agreement on the Standstill and Exclusivity Period dated 6.8.2025 (“Standstill Agreement”). 12. The Standstill Agreement granted the 1st and 2nd Defendants a limited and conditional exclusivity period to fulfil certain key deliverables with a view to executing a sale and purchase agreement. 13. These key deliverables under Clause 2.1 included, inter alia: i) Confirmation of funding structure; ii) Written confirmation from the financier that a financing application had been submitted and was under review to the satisfaction of the R&Ms; iii) Confirmation from equity partners; and Page 6 of 21 iv) Agreement on the transaction terms. 14. Clause 2.1 was required to be fulfilled by 21.8.2025, failing which the R&Ms were entitled to proceed with other disposal actions. 15. Clause 3 of the Standstill Agreement provides that only upon fulfilment of Clause 2.1 would the 1st Defendant be granted a further exclusivity period. 16. On 22.8.2025, the Plaintiff issued a Termination Notice on the basis that Clause 2.1 had not been fulfilled. B] PLAINTIFF’S SUBMISSIONS 17. The Plaintiff’s case is that the Standstill Agreement is expressly conditional, and Clause 2.1 constitutes a condition precedent. 18. The Plaintiff contends that: i) The 1st and 2nd Defendants failed to provide confirmation from the financier to the satisfaction of the R&Ms; ii) The UOB letter showed that financing approval would only be concluded by end November 2025, which was outside the contractual timeline; and Page 7 of 21 iii) As such, Clause 2.1(b) was not fulfilled. 19. The Plaintiff further submits that: i) The Standstill Agreement automatically ceased upon non-fulfilment of the condition precedent; ii) No notice to remedy was required; and iii) The termination was therefore valid. C] 1ST AND 2ND DEFENDANTS’ SUBMISSIONS 20. The central position taken by the 1st and 2nd Defendants is that they had fully complied with Clause 2.1 of the Standstill Agreement. 21. In particular, they contend that: i) They had submitted all required documents on 21.8.2025, including: a) Financing confirmation; b) A letter from UOB confirming the financing application; c) Equity partner confirmation; and Page 8 of 21 d) A finalised sale and purchase agreement (“SPA”). ii) Upon such compliance, the Plaintiff was contractually bound to grant the Second Exclusivity Period under Clause 3. iii) The termination was therefore wrongful, unlawful and in breach of contract. iv) The Plaintiff acted in bad faith and was motivated by a desire to secure alternative purchasers. 22. The 1st and 2nd Defendants further submit that the termination was invalid as: i) No proper reasons were given; and ii) They were not given an opportunity to remedy any alleged breach. D] ISSUES FOR DETERMINATION 23. The issues for determination are: i) Whether Clause 2.1 was fulfilled by the 1st and 2nd Defendants; Page 9 of 21 ii) Whether the 1st and 2nd Defendants were entitled to the Second Exclusivity Period; and iii) Whether the termination was wrongful or invalid. E] ISSUE 1: WHETHER CLAUSE 2.1 WAS FULFILLED 24. The applicable principles of contractual interpretation are not in dispute. The Court must give effect to the plain and ordinary meaning of the words used in the contract, as affirmed in Setapak Heights Development Sdn Bhd v. Tekno Kota Sdn Bhd [2006] 3 MLJ 131; [2006] 3 AMR 410; [2006] 2 CLJ 337; (CA) and Digital Tempo Sdn Bhd v. Pengangkutan Awam Putrajaya [2020] MLJU 1392. 25. Clause 2.1 of the Standstill Agreement sets out the key deliverables which the 1st and 2nd Defendants were required to fulfil on or before 21.8.2025, being the expiry of the 21-day “Exclusivity Period” commencing on 1.8.2025 as defined in Clause 1. This is not disputed by the parties. 26. Clauses 2.1 of the Standstill Agreement provides as follows: “2. KEY DELIVERABLES DURING EXCLUSIVITY PERIOD 2.1. The following items shall be fully delivered, completed or mutually agreed in writing no later than the expiration of the Exclusivity Page 10 of 21 Period, which shall end at 6.00pm (Malaysian time) on 21 August 2025: (a) written confirmation from Dolomite Capital on how the Consideration will be funded, whether wholly through external financing, equity funding or a combination of both (with a ratio of such funding); (b) written confirmation from Dolomite Capital’s financier (e.g, UOB) (“Financier”) that a formal application has been submitted to it for the financing of the Transaction, consistent with the ratio provided above under Clause 2.1(a), and such application is under review by the financier to the satisfaction of the R&M; (c) written confirmation from the equity partners that they will be providing the funding for the Transaction, consistent with the ratio provided above under Clause 2.1(a). to the satisfaction of the R&M; (d) agreement on the terms and conditions of the Transaction and finalisation of an execution copy of the SPA (“Final SPA”) to the satisfactory of the Beneficiaries. 2.2 Failure to wholly satisfy any item in Clause 2.1 by the expiry of the Exclusivity Period shall entitle the R&M to immediately proceed to undertake other disposal actions as it deems fit, even if item Clause 2.1(d) has been completed without further reference to the Obligors. Page 11 of 21 2,3 For the avoidance of doubt, completion of Clause 2.1(d) shall not be construed in any way by the Obligors as an offer to sell by the Beneficiaries or an acceptance by the Beneficiaries of any offer to purchase the Land until the Final SPA is executed by Damai in accordance with the terms of this Agreement.” (emphasis added) 27. It is not in dispute that the 1st and 2nd Defendants had, by 21.8.2025, furnished documents purporting to address the requirements under Clause 2.1, including a letter dated 20.8.2025 from their financier, United Overseas Bank (Malaysia) Berhad (“UOB”), confirming that a financing application had been submitted, together with other supporting confirmations (“the UOB letter”). 28. The 1st and 2nd Defendants, supported by the 3rd the 5th Defendants, rely on the letter from United Overseas Bank (Malaysia) Bhd dated 20.8.2025, which was furnished within time, and submit that Clause 2.1(b) only requires submission of a formal financing application and not the obtaining of financing approval. 29. However, the UOB letter states that any formal credit approval would only be concluded by the end of November 2025, which is well beyond the contractual timeline under the Standstill Page 12 of 21 Agreement. The relevant portions of the UOB letter are reproduced below: “We are requested by M/s Dolomite HY Mutiara Sdn Bhd to provide you this acknowledgement letter. We confirm that DOLOMITE HY MUTIARA SDN BHD has submitted a financing application to our bank for the aggregate financing facility of RM1 billion in relation to the proposed purchase of the above property. Our Team is now working closely with the Applicant to provide our Bank with all relevant information, data and documents for evaluation and to prepare a credit proposal for submission to our Credit Committee for approval. Given the complexity of the case, we anticipate that any formal credit approval can only be concluded by end of November 2025.” (emphasis added) 30. Therefore, the real dispute between the parties centres on whether the requirement under Clause 2.1(b), namely that the financing application be under review to the satisfaction of the receivers and managers, was fulfilled. 31. In my view, this is a critical point. The requirement under Clause 2.1(b) is not merely for the submission of a financing application, but that such application be under review “to the satisfaction of the R&M”. Page 13 of 21 32. Having regard to that express qualification, and in the context of a time-critical receivership sale, the R&M were not satisfied that the financing application met the requirement under Clause 2.1(b). This is borne out by the contemporaneous termination on 22.8.2025, which expressly invoked Clause 2.1 and the contractual language of satisfaction, and by the Plaintiff’s consistent position thereafter. 33. The Court’s role is not to substitute its own assessment for that contractually conferred judgment. Clause 2.1(b) expressly requires that the financing application be under review to the satisfaction of the R&M, and it is trite that parties are bound by the terms of their bargain, which the Court must give effect to and not rewrite or improve (see Catajaya Sdn Bhd v. Shoppoint Sdn Bhd & Ors. [2021] 3 CLJ 159 (FC)). 34. On the material before me, including the contents of the UOB letter, I find that the R&M acted within the four corners of Clause 2.1(b) in concluding that the condition had not been fulfilled. 35. In particular, the indication that any credit approval would only be concluded by the end of November 2025 is inconsistent with the structure of the Standstill Agreement, which contemplates the securing of financing within a much shorter timeframe, including the period leading up to 1.10.2025 as provided under Clause 3.1. Page 14 of 21 36. Accordingly, notwithstanding that the UOB letter was received within time and that a financing application had been submitted, Clause 2.1(b) was not satisfied because the R&M were not satisfied, as required by the Standstill Agreement. 37. On this basis alone, Clause 2.1 was not fulfilled by 21.8.2025, and it is unnecessary to make separate determinations on the remaining limbs of Clause 2.1. F] ISSUE 2: ENTITLEMENT TO SECOND EXCLUSIVITY PERIOD 38. Notwithstanding my finding that Clause 2.1 was not fulfilled by 21.8.2025, and that this is dispositive of the Plaintiff’s claim, I will, for completeness, address the 1st and 2nd Defendants’ contention that they were entitled to a further exclusivity period under Clause 3 of the Standstill Agreement. 39. Clause 3 of the Standstill Agreement provides: “3. SECOND EXCLUSIVITY PERIOD 3.1 Upon fulfilling all the key deliverables under Clause 2.1 on or before the expiry of the Exclusivity Period, the Dolomite Capital shall be granted five (5) weeks, calculated from the fulfilment of the last item under Clause 2.1 (“Second Exclusivity Period”), which shall end no later than at 6.00pm (Malaysian time) on 1 October 2025, to comply with the following: Page 15 of 21 (a) secure financing from the Financier as confirmed under Clause 2.1 (c), evidenced by a letter of confirmation from the Financier; (b) execute the Final SPA together with Damai, and pay deposit of 10% of the Consideration to Damai, which is forfeitable if the Dolomite Capital do not complete the Transaction once the Final SPA has been signed and is unconditional.” (emphasis added) 40. Clause 3 is expressly contingent upon fulfilment of Clause 2.1. 41. Given my finding that Clause 2.1 was not fulfilled, Clause 3 was never triggered. 42. Even if I am mistaken in my finding that Clause 2.1 was not fulfilled, the 1st and 2nd Defendants’ case would in any event fail. The requirement under Clause 2.1(b) is not satisfied by the mere submission of a financing application, but requires that the financing be sufficiently advanced within the contractual timeline. 43. The 1st and 2nd Defendants rely on the UOB letter, as evidencing compliance with Clause 2.1(b). However, the same letter states that any formal credit approval would only be concluded by the end of November 2025. Page 16 of 21 44. This is well beyond not only the deadline of 21.8.2025 for compliance with Clause 2.1, but also beyond the further exclusivity period up to 1.10.2025 contemplated under Clause 3 of the Standstill Agreement. 45. It follows that, even taking the 1st and 2nd Defendants’ case at its highest, they would not have been in a position to achieve the objective of the Standstill Agreement, namely the finalisation of a binding sale and purchase agreement within the stipulated timeline. 46. In this regard, the Standstill Agreement itself records that the revised proposal by the 1st and 2nd Defendants involved the outright purchase of the Land together with all associated development rights and the shares in IHSB for a total consideration of RM700 million. It follows that, had the contemplated transaction proceeded, the 1st and 2nd Defendants would have been required to pay a deposit of 10% of the purchase consideration, amounting to RM70 million, by 1.10.2025 and to execute the sale and purchase agreement. 47. This reflects the commercial reality that the 1st and 2nd Defendants would have required immediate and substantial financing in order to proceed with the transaction. 48. In light of the contents of the UOB letter, which states that any formal credit approval would only be concluded by the end of November 2025, the 1st and 2nd Defendants have not Page 17 of 21 demonstrated that they were in a position to meet such an obligation within the contractual timeline. 49. This further reinforces the conclusion that the 1st and 2nd Defendants were not in a position to complete the transaction within the framework of the Standstill Agreement. G] ISSUE 3: VALIDITY OF THE TERMINATION 50. Clause 2.2 of the Standstill Agreement expressly provides that failure to satisfy any item under Clause 2.1 by the expiry of the exclusivity period entitles the Plaintiff to immediately proceed with other disposal actions. 51. The 1st and 2nd Defendants contend that the termination was invalid because the termination letter dated 22.8.2025 did not set out adequate or specific reasons or identify which contractual condition had not been fulfilled. 52. However, where a contractual condition has not been satisfied, the breach speaks for itself. The validity of termination does not depend on the sufficiency of reasons articulated in correspondence, but on whether the contractual trigger for termination had in fact arisen. 53. The Plaintiff’s termination was grounded on the non-fulfilment of Clause 2.1, which was sufficiently identified in substance. In this regard, the following passage by the Court of Appeal in Page 18 of 21 Majlis Bandaraya Pulau Pinang v. Mohd Noor Sirajajudeen & Anor [2018] MLJU 583 (CA), is instructive on this issue: [68] Although the notice itself did not state in so many words the reason for the termination, the fact remains that the plaintiffs knew that non-payment of the monthly appointment fee would trigger an event of default and that the defendant will exercise its right to terminate the plaintiffs’ appointment. Further, from the date of receipt of the notice of termination until the date the termination was to take effect which was well within the required period for the plaintiffs to cure the remedy, the plaintiffs had every opportunity to pay the sums due to the defendant, which they did not.” (emphasis added) 54. On the material before me, I am satisfied that the Plaintiff acted within the four corners of the Standstill Agreement in terminating it on 22.8.2025. Accordingly, the termination was lawful and valid. H] CONCLUSION 55. For completeness, I have considered the submissions advanced by the 3rd to 5th Defendants. To the extent that their arguments raise distinct points, I am not persuaded by them, and they do not affect my conclusions on the issues determined above. Page 19 of 21 56. For the reasons stated above, the Plaintiff’s application in Enclosure 1 is allowed in terms of prayer 1 with costs. Dated this 28th day of April, 2026 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA PLAINTIFF : Saritha Devi Kirupalani (Katrina Ellen together with her) Messrs Firoz Julian Aras 18-1, Menara Milenium, Jalan Damanlela, Pusat Bandar Damansara, 50490 Kuala Lumpur Tel: 03-9772 2450 Email: general@fjlaw.com.my Page 20 of 21 1ST & 2ND DEFENDANTS : Mohd Saiful Hadi Messrs Jehan & Co. No. 2-16-02, Worldwide@7, Jalan Lazuardi 7/29, Seksyen 7, 40000 Shah Alam, Selangor Tel: 011-1485 7209/013-6140 947 Email: jehancolaw@gmail.com 3RD - 5TH DEFENDANTS : Lau Zhong Yan (Jaelynn Chong together with him) Messrs Lee & Poh Partnership A-10-3, Tower A, Vertical Business Suite Avenue 3, Bangsar South, No.8 Jalan Kerinchi, 59200 Kuala Lumpur Tel: 03-2242 1069 Email: officekl@lpplaw.asia CASES CITED 1. Catajaya Sdn Bhd v. Shoppoint Sdn Bhd & Ors. [2021] 3 CLJ 159 2. Digital Tempo Sdn Bhd v. Pengangkutan Awam Putrajaya [2020] MLJU 1392 3. Majlis Bandaraya Pulau Pinang v. Mohd Noor Sirajajudeen & Anor [2018] MLJU 583 Page 21 of 21 4. Setapak Heights Development Sdn Bhd v. Tekno Kota Sdn Bhd [2006] 3 MLJ 131; [2006] 3 AMR 410; [2006] 2 CLJ 337