Dato' Sri Andrew Kam Tai Yeow v 1. Tan Sri Dato' Kam Woon Wah (22NCC-352-09/2017)

1.

RAUB MINING & DEVELOPMENT COMPANY

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NG PUI KUEN LEE SIEW KIN … DEFENDANTS BEFORE YA KHADIJAH BINTI IDRIS JUDICIAL COMMISSIONER 2 GROUNDS OF JUDGMENT Introduction [1] This judgment is in relation to the following 3 interlocutory applications –

Plaintiff’s application for an interim injunction – enclosure 3;

the Second and Third Defendants’ application for the Plaintiff to provide fortification in the sum RM 20,000,000.00 for the Plaintiff’s undertaking as to damages in respect of the Plaintiff’s application for injunction – enclosure 37;

the First to the Eleventh Defendants’ application to set aside the ad interim injunction dated 6 September 2017 – enclosure 43. [2] After considering the affidavit evidence and submissions I allowed enclosure 3 and enclosure 37 where the Plaintiff was ordered to provide fortification in the sum of RM 500,000.00 and dismissed enclosure 43. All the Defendants appealed against the said decisions. 3 Factual Background [3] In my judgment in Dato' Sri Andrew Kam Tai Yeow v Tan Sri Dato' Kam Woon Wah & Ors [2017] MLJU 2037, [2017] MLRHU 1498 where I dealt with the Defendants’ application to strike out the Plaintiff’s Writ and Statement of Claim, I have set out the facts of this case. Those are the underlying facts which forms the basis of the filing of the Plaintiff’s action in this case and thus is reproduced here for the purpose of this judgment. [4] On 5 September 2017 the Plaintiff, Dato’ Sri Andrew Kam Tai Yeow, who is an advocate and solicitor of the High Court of Malaya filed a writ action registered as WA-22NCC-352-09/2017 (Writ Action). The defendants cited in the Writ Action are the following:

Tan Sri Dato’ Kam Woon Wah, the First Defendant (1st Defendant) who is also an advocate and solicitor of the High Court of Malaya. The 1st Defendant is the father to the

(ii) Raub Mining & Development Company Sdn Bhd, the Second Defendant (2nd Defendant) a private limited company with its core business relating to palm oil plantations and it owns, 4 among others, approximately 4,219 acres of plantation land in Raub Pahang on which an oil palm estate is situated (the Estate);

(iii) Raub Oil Mill Sdn Bhd, the Third Defendant (3rd Defendant) which is a private limited company. The 3rd Defendant is a wholly-owned subsidiary of the 2nd Defendant. It owns and operates a palm oil mill situated on the plantation land owned by the 2nd Defendant (the Mill);

(iv) Wahbunga Realty Sdn Bhd, the Fourth Defendant (4th Defendant) a private limited company;

Yum Sdn Bhd, the Fifth Defendant (5th Defendant) a private limited company;

(vi) Berjaya Realty Sdn Bhd, the Sixth Defendant (6th Defendant) a private limited company;

(vii) Grandfoods Sdn Bhd, the Seventh Defendant (7th Defendant) a private limited company;

(viii) Lead Enterprises Sdn Bhd, the Eighth Defendant (8th Defendant) a private limited company;

(ix) Granny’s Kitchen Sdn Bhd, the Ninth Defendant (9th Defendant) a private limited company;

United Raub Oil Palms Sdn Bhd, the Tenth Defendant (10th Defendant) a private limited company; 5

(xi) Coastal Realty Sdn Bhd, the Eleventh Defendant (11th Defendant) a private limited company;

(xii) Ng Pui Kuen, the Twelfth Defendant (12th Defendant) an individual and the company secretary to the 2nd to the 11th Defendants; and

(xiii) Lee Siew Kin, the Thirteenth Defendant (13th Defendant) an individual and company secretary to the 2nd to the 10th Defendants. Essentially the 4th to the 11th Defendants were established for purpose of holding shares in the 2nd Defendant. [5] The Plaintiff’s claim are endorsed in the writ dated 5 September 2017 (the Writ). Subsequently on 19 September 2017 the Plaintiff filed an Amended Writ (the Amended Writ) under Order 20 rule 1 of the RoC

Plaintiff’s claims as endorsed in the Amended Writ are as follows:

a declaration that the Agreement dated 16 January 2017 between the Plaintiff and the 1st Defendant (the Shareholders’ Agreement) provides, inter alia, that 50% of the 1st Defendant’s entire shareholding in Raub Mining & 6 Development Company Sdn Bhd (Company No. 26175-P), that is the 2nd Defendant, belongs to the Plaintiff;

(ii) a declaration that the 1st Defendant holds in trust for the Plaintiff, 50% of the total paid up and issued shares in the 2nd Defendant pursuant to and upon the terms as stated in the Shareholders’ Agreement;

(iii) a declaration that the Plaintiff is the beneficial owner of 50% of the total paid up and issued shares in the 2nd Defendant pursuant to and upon the terms as stated in the Shareholders’ Agreement;

(iv) a declaration that the entire interest of the 1st Defendant in the 2nd Defendant is held through the interests of the 1st Defendant in the 4th to 11th Defendants as well as held personally by the 1st Defendant in the 2nd Defendant and that therefore, the 50% of the 1st Defendant’s entire interest in the 2nd Defendant includes 50% of the interests held by the 1st Defendant in the 4th to 11th Defendants as well as 50% of the interest held by the 1st Defendant personally in the 2nd Defendant;

a declaration that the Plaintiff has the right of first refusal or option, to purchase from the 1st Defendant, the balance 50% of the 1st Defendant’s total paid up and issued shares 7 in the 2nd Defendant, pursuant to and upon the terms as stated in the Shareholders’ Agreement;

(vi) a declaration that the option referred to in prayer (v) above extends to the right of first refusal or option to purchase from the 1st Defendant the balance 50% of the 1st Defendants’ interest in the 4th to 11th Defendants as well as 50% of the interest held by the 1st Defendant personally in the 2nd Defendant;

(vii) Specific Performance of the Shareholders’ Agreement;

(viii) an Order that the 12th and 13th Defendants take all necessary steps to ensure that the transfer of shares of the 2nd and the 4th to the 11th Defendants consequent upon prayer (vii) above is effective and regular;

(ix) the Defendants, whether by themselves, their officers, representatives, servants and/or agents, where applicable, be restrained and an injunction be granted to restrain the Defendants whether by themselves, their officers, representatives, servants and/or agents, where applicable, from directly or indirectly acting on, implementing, carrying out or otherwise taking any steps and/or doing anything to act on, implement and/or carry out any members’ resolution passed at any meeting of shareholders of the 2nd to 6th and 8 11th Defendants with a view to the removal of the Plaintiff as director of the 2nd to the 11th Defendants;

a declaration that any removal of the Plaintiff as a director of the 2nd to 11th Defendants which may have been resolved and/or effected by the Defendants is null and void;

(xi) an Order that any removal of the Plaintiff as a director of the 2nd to 11th Defendants which may have been resolved and/or effected by the Defendants and which is declared as null and void by this Honourable Court be set aside and the Plaintiff be reinstated as a director of the 2nd to 11th Defendants and that consequential thereto, all records, registers and documents be rectified accordingly;

(xii) an Order that the Defendants take such steps are necessary and as are required of them by law, regulation and/or by the relevant authorities to cancel, set aside or reverse any steps taken pursuant to any members’ resolution passed at any meeting of shareholders of the 2nd to 6th and 11th Defendants with a view to the removal of the Plaintiff as director of the 2nd to 11th Defendants and/or with a view to the sale of the assets of the 2nd and/or 3rd Defendants; 9

(xiii) the Defendants, whether by themselves, their employees, agents, representatives, nominees and/or howsoever, be restrained and an injunction do hereby be issued to restrain the Defendants, whether by themselves, their employees, agents, representatives, nominees and/or howsoever, from disposing, pledging, dealing in any manner all the shares in the 2nd to the 11th Defendants, including restraint upon dilution of the share thereof;

(xiv) the 2nd Defendant, whether by themselves, their directors, their officers, representatives, servants and/or agents be restrained and an injunction be granted to restrain the Defendants whether by themselves, their directors, their officers, representatives, servants and/or agents, from disposing, pledging, dealing in any manner whatsoever, all or any assets of the 2nd Defendant, particular, all the shares in the 3rd Defendant and the following assets:

a piece of land with an area measuring approximately 4215.5198 acres held under H.S.(D) 10803, Lot No. PT 23120 Mukim Gali, District of Raub, Pahang;

a piece of land with an area measuring approximately 4.2732 acres held under H.S.(D) 10940, Lot No. PT 22468 Mukim Gali, District of Raub, Pahang; 10

the palm oil mill located at H.S.(D) 10803, Lot No. PT 23120, Bukit Koman, Mukim Gali, 27600 Raub, Pahang. For the purpose of this judgment, the assets listed at paragraph (a) – (c) are collectively referred to as “the Assets”.

(xv) damages to be assessed;

(xvi) interest at the rate of 5% per annum on the damages to be assessed from the date of this statement of claim until full payment of such damages;

(xvii) costs; and

(xviii) further or other relief which the court deems fair and appropriate. [6] The Plaintiff subsequently filed his Statement of Claim (enclosure 28). The Statement of Claim essentially sets out the history in relation to the incorporation of the 2nd Defendant which was then known as Raub Mining and Development Co. Ltd. (RMDCL Co.) which was a family company of the Plaintiff’s mother. RMDCL Co. had acquired 5,000 acres of mining land. This land was particularly unique in that it had been part of a historical underground gold mine which remains world- 11 famous to this day. The 5,000 acres of land was subsequently converted into agriculture land and, as indicated in the Statement of Claim, is the land on which the Estate is situated. [7] The Plaintiff was appointed as director of the 2nd Defendant in 1986 whilst his 2 other elder siblings Linda Kam Thai Eng (Linda) and Edward Kam Thai Keong (Edward) were appointed earlier in the 1980s. When the 1st Defendant was facing severe financial difficulties due to the Pan Electric Industries crisis which hits Malaysia in the 1980s the Plaintiff, at the proposition of the 1st Defendant, agreed to stay on with the 1st Defendant, 2nd and 3rd Defendant. The proposition made by the 1st Defendant was that if the Plaintiff stayed on (Linda and Edward resigned from the board of the 2nd and 3rd Defendant to seek greener pastures elsewhere) and rehabilitate the poor financial position of the 2nd and 3rd Defendants, the 1st Defendant’s entire interest in the 2nd Defendant and therefore in the 3rd Defendant would belong to the Plaintiff and would be held by or on behalf of the 1st Defendant for the benefit of the Plaintiff until subsequently transferred to the Plaintiff (the Underlying Agreement). [8] The Plaintiff then devoted the next 10 to 15 years of his life to rebuild the business. Among the steps taken by the Plaintiff were – 12

improving cash flow of the 2nd and 3rd Defendants by liquidating some other assets;

arranging, striking and/or renegotiating better deals (during challenging economics times as competition was fierce for the supply of fruits) with other parties in order to ensure the 3rd Defendant had a sufficient supply/volume of good quality estate fruits for the Mill to operate efficiently. This led to the success of the 3rd Defendant’s high extraction rates from the 1990s onwards for which the 3rd Defendant has won a number of national PORLA awards since then; and

undertook personal risk by providing personal guarantee to various banking facilities provided to the 2nd and 3rd Defendant. Without the personal guarantee of the Plaintiff the banking facilities would not have been made available to the 2nd and 3rd Defendants due to their financial position which were in dire straits. [9] According to the Plaintiff he had managed to turn the business of the 2nd and 3rd Defendants around by 1997 therefore upholding his end 13 of the bargain under the Underlying Agreement. The Plaintiff claims that the 1st Defendant had acknowledged that the Plaintiff had earned his right to 100% of his interest in the 2nd and 3rd Defendants and recognised the Plaintiff’s attachment to the 2nd and 3rd Defendants and their legacy left by the Plaintiff’s family and the Plaintiff’s vision to further develop the legacy over the years. [10] The Plaintiff did not demand for the 1st Defendant to transfer the 100% of 1st Defendant’s interest in the 2nd Defendant to him due to various reasons including the close relationship of father-son and there were no reason for the Plaintiff not to distrust his own father who had regularly and consistently confirmed that the Plaintiff owned 100% of his interests in the 2nd Defendant in light of the Underlying Agreement. [11] However around 2010 the Plaintiff realised the 1st Defendant appears to be wavering in honouring his obligations under the Underlying Agreement, namely, to transfer his entire interests in the 2nd Defendant to the Plaintiff and honouring the obligations as a trustee pursuant to the trust created under the said Agreement. [12] The Plaintiff claims that the 1st Defendant has breached the Underlying Agreement and the trust obligations to which the 1st 14 Defendant was subjected to pursuant to the said Agreement. The particulars of the breach were set out in detail in paragraph 23 of the Statement of Claim which can be summarised as follows –

1st Defendant was becoming increasingly difficult about channelling the dividends from the 2nd and 3rd Defendants (which the Plaintiff had requested since mid-1980 onwards) to the Plaintiff which the Plaintiff is entitled to under the Underlying Agreement and as effective majority shareholder of the 2nd Defendant;

the 1st Defendant refused to acknowledge the Underlying

the 1st Defendant refused to show to the Plaintiff detailed accounts (general ledger, receipts, cheque, vouchers, bank statements) of the 2nd to the 11th Defendants (the Group) even though the Plaintiff was entitled to have sight of the same as a director of the said companies;

around mid-2016, the 1st Defendant informed the Plaintiff he wanted to sell the Estate and the Mill. The Plaintiff objected 15 strongly as he had strong emotional ties to the 2nd and 3rd Defendants and he would not agree to sell the assets of the 2nd and 3rd Defendants under any circumstances. The 1st Defendant continued to insist he wanted to sell the Estate and the Mill as he was said to be under pressure from other parties including his 3 other children to do so. [13] Eventually, as a compromise and for the sake of peace in the family, the Plaintiff agreed to vary the Underlying Agreement such that the Plaintiff would sacrifice his beneficial ownership of 50% of the 1st Defendant’s interest in the 2nd Defendant and in consideration, among others, the Plaintiff would have the benefit of a first priority option over the balance 50% interests of the 1st Defendant’s interest in the 2nd Defendant (the Option). [14] The Plaintiff claims he is the registered holder of approximately 6.54% of the shares in the 2nd Defendant through his registered holdings in the 2nd Defendant and the 4th to the 11th Defendants. Such position is derived from the following calculation – 16 Shareholder % shares in D2 P’s shareholding % of P’s indirect shareholding D4

32.07

0.54%

0.170 D5 26.55 1.90%

0.505

D5 (via D9) 55 3.38%

0.898 D6 19.84 0.48%

0.095 D7 7.39 33.33%

2.463 Individuals 0.25 8.33%

0.021 D8 0.24 25.00%

0.060 D9 0.30 33.33%

0.100

D10 (via D9) 36 16.665%

2.226

D10 (via D11) 36 0.0024%

0.0003 P’s registered interest in D2

6.54 Based on the Shareholders’ Agreement the Plaintiff claims his interest in the 2nd Defendant and thus the 3rd Defendant is approximately 97.44%. [15] The Plaintiff’s Statement of Claim sets out the 1st Defendant’s interest in the 2nd to the 11th Defendants in which the 1st Defendant holds shares either directly or indirectly. In the 2nd Defendant, the 1st Defendant is the registered holder of 7 out of 6,764 shares. The 1st Defendant also hold majority of the shares in the 4th to the 11th Defendants. The 4th to the 11th Defendants in turn hold shares in the 2nd Defendant. The 2nd Defendant in turn hold the entire shares in the 3rd Defendant making the 3rd Defendant a wholly owned subsidiary of the 2nd Defendant. The Plaintiff tabulates the 1st Defendant’s interest in the 2nd to the 11th Defendant as follows – 17 Shareholder % shares in D2 D1’s shareholding % of DI’s indirect shareholding

32.07

97.80&

31.360 D5 26.55 82.20%

21.824

D5 (via D9) 55 6.77%

1.797 D6 19.84 98.08%

19.459 D7 7.39 66.67%

4.927 Individuals 0.25 58.33%

0.146 D8 0.24 75.00%

0.180 D9 0.30 66.67%

0.200

D10 (via D9) 36 33.33%

4.453

D10 (via D11) 36 49.05%

6.552 Thus the 1st Defendant entire interest in the 2nd Defendant and thus the 3rd Defendant amounts to approximately 90.90% (directly and indirectly through the 4th to the 11th Defendants). [16] The Shareholders’ Agreement was executed between the Plaintiff and the 1st Defendant. By virtue of the provisions in the Shareholders’ Agreement the Plaintiff claims he is the beneficial shareholder of 50% of the 1st Defendant’s shareholding in the 2nd Defendant which in total amounts to 90.90% being the 1st Defendant’s entire interest (through himself and the 4th to 11th Defendants) in the 2nd Defendant. Based on clause 3 of the Shareholders’ Agreement the Plaintiff claims he has a right to exercise the Option (a first or priority option), namely, whether or not to purchase the remaining 50% of the 1st Defendant’s entire interest in the 2nd Defendant. The mechanism for purpose of determining the price of the said remaining 50% interests was stipulated in clause 3 of 18 the Shareholders’ Agreement where it was agreed that the price was to be determined by conducting a public tender of the assets of the 2nd Defendant in 2017. The price of the remaining 50% shares shall be half the highest tender price obtained at the public tender. [17] It is the Plaintiff’s position that since the Shareholders’ Agreement provides that the Plaintiff is the beneficial owner of 50% of the 1st Defendant entire interest and as the Plaintiff was provided with the Option, the 1st Defendant held 50% of his entire interest in the 2nd Defendant on trust for the benefit of the Plaintiff. The Plaintiff further contends the 1st Defendant was under the obligation to ensure that the remaining 50% of his entire interest in the 2nd Defendant was not utilised in a manner contrary to the interest of the Plaintiff. [18] At the same time when the Writ Action was filed on 5 September 2017, a notice of application for an interim injunction (enclosure 3) was also filed by the Plaintiff seeking, among others, for the following relief:

an injunction against the Defendants restraining them from holding and/or convening the meeting of shareholders of the 2nd to 6th and the 11th Defendants on 6 September 2017; 19

an injunction against the Defendants from implementing and/or carrying out any members’ resolution passed at any meeting of shareholders of the 2nd to 6th and 11th Defendants;

an injunction against the Defendants from taking any steps or doing anything to remove the Plaintiff as a director of the 2nd to 11th Defendants;

an injunction against the Defendants from disposing, pledging, dealing in any manner whatsoever, all the shares in the 2nd Defendant;

an injunction against the Defendants from disposing, pledging, dealing in any manner whatsoever, all or any assets of the 2nd Defendant and / or the 3rd Defendant, in particular, all the shares in the 3rd Defendant and / or the Assets mentioned in paragraph 5 (xiv) (a) – (c) above. [19] Enclosure 3 was accompanied by a Certificate of Urgency enclosure 2 which listed, among others, the following reasons as the basis of urgency –

the injunctive relief sought by the Plaintiff is to restrain the 2nd to the 11th Defendants from holding its shareholders’ meeting 20 which is scheduled on the next day, i.e 6 September 2017. The Plaintiff dispute the legality of convening such meeting;

agenda of the said meetings is to pass the following resolutions:

remove the Plaintiff as director of the 2nd to the 6th Defendants and the 11th Defendant; and

(ii) to sell assets of the 2nd and 3rd Defendants to a third party which the Plaintiff claim tantamount to a breach of contract and trust on the part of the 1st Defendant. [20] The court fixed 6th September 2017 for hearing of enclosure 3. The Plaintiff was directed to serve the cause papers on all the Defendants including enclosure 3. [21] At the hearing of enclosure 3 the court was informed by the Plaintiff that they have served the cause papers on the 1st Defendant’s solicitor and all the other Defendants. None of the Defendants were present. In respect of the 1st Defendant, the Plaintiff submitted to the court a copy of a letter dated 5 September 2017 issued by the 1st Defendant’s solicitor to the Plaintiff’s solicitor informing – 21

they are not able to advise their client to defer the meetings as notice of the meetings was given to the Plaintiff as early as 7 August 2017. The Plaintiff had ample time to make any application timeously. The meeting(s) will proceed as scheduled;

due to the very late notice the 1st Defendant’s solicitor is not able to attend the court and that their lead counsel is engaged in the Federal Court on 6 September 2016. [22] After considering the submission of the Plaintiff and the affidavit filed in support thereto, on 6 September 2017 I ordered an ad interim injunction (the Ad Interim Injunction) pending the disposal of enclosure 3. [23] The Defendants then filed applications to strike out the Plaintiff’s Writ and Endorsement of Claim. On 27 September 2017, I dismissed all the Defendants’ applications except that of the 12th Defendant’s. The Defendants appealed and the matter is now pending before the Court of Appeal. 22 [24] Subsequently by consent of the parties the claim against the 13th Defendant was withdrawn. Thereafter the applications in enclosures 3, 37 and 43 was filed by the respective parties. Plaintiff’s contentions [25] With regards to enclosure 3 (Plaintiff’s application for interim injunction) the Plaintiff’s contentions may be summarized as follows –

serious issues to be tried

the Plaintiff took the position that this point has been adjudicated by this court when the Defendants’ applications to strike out the Plaintiff’s Writ was dismissed. Thus the Plaintiff has an arguable case as there are serious issues to be tried. The issues are discussed below.

(ii) the Plaintiff’s claim is premised on the Shareholders’ Agreement. The said agreement is a commercial arrangement between the Plaintiff and the 1st Defendant where pursuant to the said agreement Plaintiff is the owner of 50% of the 1st Defendant shareholding in the 2nd Defendant and has the option to purchase the balance 50% 23 of the shares. The tender exercise was intended to be a price fixing mechanism in order to determine the market value of the remaining 50% shares that Plaintiff will have to pay. Thus the 1st Defendants’ intention to proceed with the sale of the Assets run counter to the said agreement.

(iii) the Shareholders’ Agreement is not a private agreement or informal understanding as contended by the 1st Defendant. The legal effect of the agreement is acknowledged by the 1st Defendant via his solicitor’s letter dated 29 August 2017 where he alleges the Plaintiff owes the 1st Defendant a sum of RM 58,880,301.69 pursuant to clause 2 of the Shareholders’ Agreement.

Balance of convenience

the injunction sought is for purposes of preserving the Plaintiff’s interest as a shareholder and director in the 2nd and 3rd Defendants and also the assets of the 2nd and 3rd Defendants. The interim injunction is not intended to cripple the companies by restraining them from holding any meetings but only to restrain the companies from carrying out meetings and implementing resolutions which 24 undermine the Plaintiff’s interest and from removing the Plaintiff s director.

(ii) Plaintiff had spent approximately 15 years in rehabilitating the Group. The assets of the 2nd and 3rd Defendants have rich historical value which was a result of the legacy of the Plaintiff’s family.

(iii) the Defendants went ahead with the meeting to pass resolutions to enable the Assets to be sold and for the removal of the Plaintiff as director. As such Plaintiff would suffer irreparable harm if he is removed as director and the assets are sold. Such harm cannot be adequately compensated by damages. [26] In respect of the application for fortification (enclosure 37) the Plaintiff noted that such application was made on the basis that the Ad Interim Injunction impedes the sale of the assets to Matang Berhad and this will result in a possible loss of RM 20,000,000.00 to the 2nd and 3rd Defendants. The Plaintiff submits the basis is flawed as there is no proof to substantiate the Defendants’ allegation that they will suffer such loss. The Letter of Intent issued by Matang Berhad (Exhibit D-3 of enclosure 38) is not binding as there was no sale and purchase agreement executed by Matang Berhad and the 2nd and 3rd Defendants. 25 Furthermore, the reserve price for the Assets (which the Defendants intend to sell at RM 180,000,000.00) was estimated at RM 250,000,000.00. Thus the preservation of the said assets would benefit the companies. Delay [27] The Plaintiff explained he was only certain that the 1st Defendant has no intention of honoring the Shareholders’ Agreement when firstly, the Letter of Intent from Matang Berhad was made available to him on 17 August 2017. Secondly, he received notices of meetings (of the 2nd to the 7th and the 11th Defendants) on 7 August 2017 and 22 August 2017 (notice of meetings of the 7th to the 9th Defendants), where resolutions are proposed to approve the sale of the Assets to Matang Berhad and to remove him as director. The Plaintiff through his solicitor demanded that the Defendants cancel the said meetings. However the 1st Defendant did not reply to the demand to cancel the said meetings. Instead the 1st Defendant demanded the Plaintiff a sum of RM 58,880,301.69 as money owed to the 1st Defendant pursuant to the Shareholders’ Agreement. 26 [28] The Plaintiff further explained between 22 August 2017 and the date on which he filed his application for injunction (enclosure 3) he effectively had very few working days to prepare his case (locate supporting documents and instruct solicitor) due to the numerous public holidays (Independence Day on 31 August 2017, Hari Raya Haji on 1 September 2017 and the unexpected public holiday on 4 September 2017 to mark Malaysia’s achievement in the 2017 SEA Games). Financial ability of the Plaintiff [29] It is the Plaintiff’s contentions that the companies which he controls have assets worth much more than RM 20,000,000.00 and are capable of securing facilities from both local and foreign financial institutions for amounts much higher than RM 20,000,000.00. [30] With regards to the claim by Hap Seng Credit Sdn Bhd, Raub Resources Sdn Bhd had recently settled a RM 5,000,000.00 facility to the said Hap Seng and also made payments amounting to RM 286,000.00 to the same. The solicitors for Hap Seng Credit Sdn Bhd had confirmed that the said sum constitutes full and final settlement of both the bankruptcy proceedings against the Plaintiff and the winding up proceedings against Raub Resources Sdn Bhd. 27 [31] In respect of the CTOS Report, the Plaintiff submits the report was obtained by a third party without his consent and as such the report ought not to be relied on. In any event the Plaintiff had notified CTOS via letter dated 26 October 2017 that the contents of the CTOS Report are inaccurate and not up to date. Defendants’ contentions [32] With regards to the application to set aside the Ad Interim Injunction (enclosure 43) it is contended that the Ad Interim Injunction is irregular on the following grounds –

sealed copy of writ was not served on the Defendants. It was only the unsealed copy served on the evening of 5 September 2017. Such service is not good service;

as the Ad Interim Injunction was made on ex parte basis, it violates Order 29 rule 1(2C) of the Rules of Court 2012 (RoC 2012) as the said injunction has the effect of restraining the 2nd to the 11th Defendants from holding meetings;

even if the Ad Interim Injunction is considered inter parte, the application must be served 2 clear days before hearing. 28 [33] The 2nd to the 11th Defendants further contends –

the said Ad Interim Injunction interfered with their internal management.

there is no serious issues to be tried as the Shareholders’ Agreement clearly envisaged a complete sale of material assets of the 2nd and 3rd Defendants. Even if there is serious issues, damages is adequate remedy for the Plaintiff in the event he succeed.

the Plaintiff failed to disclose material facts which relate to his financial standing. It is argued that the Plaintiff has no financial ability or asset to meet his undertaking as to damages due to, inter alia, the following grounds –

bankruptcy proceedings is pending against the Plaintiff in Kuala Lumpur High Court Bankruptcy No. WA- 29NCC-3476-08/2017 by his creditor Hap Seng Credit Sdn Bhd. The said proceeding is pursuant to a summary judgment obtained against the Plaintiff and Penaga Tiara Sdn Bhd (which is 98% owned by the 29 Plaintiff) and Raub Resources Sdn Bhd a wholly owned subsidiary of Penaga Tiara Sdn Bhd. A winding up petition has also been commenced against Raub Resources Sdn Bhd.

(ii) based on corporate information supplied by the CCM, the Plaintiff, Penaga Tiara Sdn Bhd and Raub Resources Sdn Bhd companies owned by him are laden with debts. The Plaintiff is the chairman and chief executive officer of a company known as Peninsular Gold Limited whose principal activities were gold mining in Raub Pahang. The shares of Peninsular Gold Limited were suspended from trading on 2 December 2014 after it ceased operation. A wholly owned subsidiary of Peninsular Gold Limited known as Raub Australian Gold Mining Sdn Bhd has been voluntarily wound up and has a total debt of almost RM 300,000,000.00.

(iii) the report from CTOS shows the Plaintiff’s “CTOS Litigation Index” is at 8,788 out of 99,999.00 points which is close to “worst” (Exhibit D-7 enclosure 55). 30 [34] The Plaintiff is guilty of delay in seeking the interim injunction. The Plaintiff’s claim that he came to know about the Letter of Intent issued by Matang Berhad only on 17 August 2017 is not true because the Plaintiff was informed by the 1st Defendant of the said Letter of Intent when the Plaintiff visited the 1st Defendant on18 July 2017. [35] As a result of the Ad Interim Injunction, the Assets could not be sold. Based on the current market condition the Defendants will not be able to procure another purchaser who will purchase the Assets at RM 180,000,000.00. If the sale is allowed to complete, the Defendants will be entitled to keep the proceeds of the sale in interest bearing account to earn interest or to reinvest the proceeds to generate income. [36] It is argued by the 1st Defendant that the Ad Interim Injunction will deprive him of his wish to liquidate his companies most valued assets and to make estate planning during his lifetime. The Ad Interim Injunction will cause the Defendants to suffer a loss of at least RM 20,000,000.00. Based on the Plaintiff’s financial standing there is real likelihood of the Plaintiff’s inability to meet his undertaking as to damages. The Plaintiff’s undertaking is in fact worth nothing. As such the Plaintiff ought to provide fortification in the sum RM 20,000,000.00 31 Findings of court Enclosure 3 – application for injunction Enclosure 43 – setting aside the Ad Interim Injunction [37] As related above, the Plaintiff filed this Writ on 5 September 2017, together with enclosure 3 on urgency basis on the ground that the meeting of members of the 2nd to the 11th Defendants’ will be held on 6 September 2017 for purpose of passing resolution to remove the Plaintiff as a director and also a resolution for the sale of the Assets. It is to be noted enclosure 3 was filed on inter parte basis as the intended injunction sought will have the effect of stopping the holding or progress of a meeting of the 2nd to the 11th Defendants (Order 29 rule 1 (2C) Rules of Court 2012). Thus specific direction were given by this court for the papers to be served on all the Defendants and enclosure 3 was fixed on 6 September 2017. As stated at above when enclosure 3 came before this court on 6 September 2017, learned counsels for the Plaintiff informed the court that they have, as directed by the court, served the cause papers on the 1st Defendant’s solicitor and all the other Defendants. The direction to serve the cause papers on the Defendants was to allow the Defendants to be heard in respect of enclosure 3. 32 [38] However none of the Defendants were present. This is despite the demand made by the 1st Defendant, via his solicitor’s letter dated 29 August 2017 (Exhibit A-30 of enclosure 4) to the Plaintiff’s solicitor, that they want to be heard in the event the Plaintiff move the court for any ex-parte order however short the notice may be. Such demand was in response to the letter dated 28 August 2017 from the Plaintiff’s solicitor disputing, among others, the validity of the requisitions of shareholders’ meeting of the 2nd to the 11th Defendants. In the said letter, solicitor for the 1st Defendant was notified that should the 1st Defendant failed, among others, to cancel or withdraw the requisitions of the 2nd to the 11th Defendants shareholders meeting scheduled on 6 September 2017, the Plaintiff will make the necessary applications to court for such relief as may be necessary to protect the Plaintiff’s interest. On 5 September 2017 the court was informed that the solicitor for the 1st Defendant informed the Plaintiff’s solicitor that due to the late notice they are not able to attend the court on 6 September 2017 and that the lead counsel is engaged in the Federal Court on the even date. [39] Considering the circumstances I am of the view when the Ad Interim Injunction order was made, it was made on inter parte basis. The issue of short notice does not arise as the Defendants has expressly indicated, via their solicitor’s letter that they wanted to be 33 heard and thus were prepared to attend court even on a short notice. Assuming for a moment it is short notice, it is not the Defendants case that it has caused miscarriage of justice. Thus the Ad Interim Injunction was regularly obtained. In the case Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 MLJ 30 cited by the Defendants, the facts are distinguishable. Tuan Haji Ahmed Abdul Rahman’s case dealt with a judgment in default which the Federal Court ruled as being irregularly obtained at the High Court level due to procedural impropriety in the decision-making process where the learned High Court Judge declined to consider arguments on points (that the judgment in default was invalid) which had not been raised before the senior assistant registrar. Thus the judgment in default was set aside ex debito justitiae. In the instant case enclosure 3 was made on inter pate basis and the Defendants although aware of the date fixed for hearing chose not to attend. Importantly they had previously made known of their demand to be heard however short the notice may be. They were informed to attend but they did not attend in order to be heard. [40] With regards to the Plaintiff’s argument that the Defendant’s application to set aside the Ad Interim Injunction is barred by res judicata, I am of the view there is no merit in such argument. Although the Defendants’ applications to strike out the Plaintiff’s Writ via 34 enclosures 12, 13 and 14 contained a prayer for dissolution of the Ad Interim Injunction, such prayer was incorporated on the premise that the Writ would be struck out. Since the Defendants’ application was dismissed, this court directed the Defendants to filed their application to set aside the Ad Interim Injunction and that directions given for parties to exhaust affidavits. As such the issue of res judicata does not arise. Whether the Plaintiff failed to disclose material facts [41] The Defendants’ complaint is that the Plaintiff’s failure to disclose financial standing warrant the setting aside of the Ad Interim Injunction. It is argued that it is the Plaintiff’s duty, when applying for the interim injunction, to disclose all material facts. The facts which is material, in so far as the Defendants are concerned is the financial standing of the Plaintiff. As stated above enclosure 3 was filed on inter parte basis and not on ex parte basis where an applicant is duty bound to make a full and frank disclosure. As enclosure is on inter parte basis, affidavits supporting and opposing are expected to be filed and exhausted. However Defendant failed to attend to contest and oppose the Plaintiff’s application, in particular the Plaintiff’s financial position. Thus the Plaintiff applied, and after considering the Plaintiff’s submission the court allowed the Plaintiff’s application for an ad interim injunction pending the 35 disposal of enclosure 3 which was at all time intended to be inter parte but for the absent of the Defendants. Accordingly it is my considered view at the time the Ad Interim Injunction was made, the duty of full and frank disclosure does not arise. Furthermore, on the facts and the circumstances, I am of the view at the time the Ad Interim Injunction was granted Plaintiff’s financial standing was not perceived to be relevant (Brink’s Mat Ltd v Elcombe & Ors [1988] 1 WLR 1350). Thus there is no sufficient evidence for this court to conclude there is suppression of facts on the part of the Plaintiff as to his financial position at that point in time. As such the case M. R. K. Nayar v Ponnusamy & Ors [1982] MLJ 174 is not applicable. Whether there are serious issues to be tried [42] In so far as serious issues to be tried is concerned, I am in agreement with learned counsel for the Plaintiff that this court has dealt with this point at the hearing of the Defendants’ applications to strike out the Plaintiff’s Writ. The serious issues may be summarized as follows:

the 1st Defendant contends the Shareholders’ Agreement is of a domestic nature in relation to the family arrangement which lacks intention to create legal relations and therefore is 36 not meant to be enforceable. However based on the face of the pleaded facts there appears to be a contractual relationship between Plaintiff and the 1st Defendant via the Shareholders’ Agreement. The facts indicate there is a breach of the said agreement by the 1st Defendant details of which is stated in paragraph 39 of the Statement of Claim. The breach includes the 1st Defendant’s decision to sell the assets to Matang Berhad as evident from the signing of the Letter of Intent issued by Matang Berhad relating to the purchase of the same. It is my considered view that such breach provides reasonable cause of action which the Plaintiff is entitle to pursue against the 1st Defendant;

the enforceability of the Shareholders’ Agreement is fortified by the 1st Defendant’s intention to enforce provisions of the said agreement. Via letter dated 29 August 2017 issued by the 1st Defendant’s solicitor, the 1st Defendant claims pursuant to clause 2 the said agreement the Plaintiff owe the 1st Defendant a sum RM 58,880,301.69 which was agreed by the parties to be deducted from the portion of the 50% of 1st Defendant’s interest in the 2nd and 3rd Defendant which is to be transferred by the 1st Defendant to the Plaintiff. The 1st 37 Defendant also relies on clause 4 of the Shareholders’ Agreement and claim he is entitled to RM 20,000,000.00 from the intended sale of the Assets. The 1st Defendant has made it very clear that he is determined to pursue to the very end to recover the monies from the Plaintiff;

it is the 1st Defendant’s position that the Shareholders’ Agreement is not enforceable as there was no consideration. Based on the facts it would appear the Plaintiff agreed not to pursue ownership of the entire interests of the 1st Defendant’s interest in the 2nd and 3rd Defendant which had been agreed earlier by the parties under the Underlying Agreement. It is pleaded by the Plaintiff that he agreed to sacrifice his beneficial ownership of 50% of the 1st Defendant’s interest in the 2nd Defendant and in consideration thereof the Plaintiff would have the benefit of a first or priority option over the balance 50% interest of the 1st Defendant in the 2nd Defendant. Plaintiff promises to abstain from pursuing his purported rights under the Underlying Agreement by forgoing 50% of his beneficial ownership in return for a priority option over the remaining 50% interest and this was produced into writing in the form of the 38 Shareholders’ Agreement. Thus there appears to be consideration in the context of section 2(d) of the Contracts Act 1950 and section 26 of the same (which provides that an agreement without consideration is void) may not be applicable at all;

the legality of members’ meetings of the 2nd and 3rd Defendants which was requisitioned by the 1st Defendant for the purpose of passing resolutions to remove the Plaintiff as director and to sell their assets to Matang Berhad. The Article of Association of the 2nd Defendant provides that it can only remove the Plaintiff as a director by an extraordinary resolution and an extraordinary general meeting can only be requisitioned by shareholders holding not less than 10% of the issued share capital. Since the Shareholders’ Agreement contemplates the Plaintiff can become the registered holder of approximately 97.44% of the issued share capital of the 2nd Defendant, it would appear the 1st Defendant would not be entitled to requisitioned for the members’ meeting of the 2nd Defendant. Thus on the facts the Plaintiff’s challenge on the legality of the meetings 39 convened and by extension the resolutions passed appears to be probable;

the 4th to the 11th Defendants are not parties to the Shareholders’ Agreement. However the 1st Defendant is a majority shareholder of the 4th to the 11th Defendant. Based on the affidavit evidence, it was the 1st Defendant who had requisitioned for the 4th to the 6th and the 11th Defendants to convene a members meeting (scheduled to take place on 6 September 2017) for the purpose of considering and if thought fit, to pass a special resolution to remove the Plaintiff as director from their respective Boards and an ordinary resolution to sell their assets to Matang Berhad. The 1st Defendant had also requisitioned for the 7th to the 9th Defendants to convene Board of Directors meeting for the purpose of proposing and passing resolutions that the 1st Defendant to act and vote as the said companies’ representative at the members’ meeting of the 2nd Defendant on 6th September 2017. The serious issue here is whether the requisitions made by the 1st Defendant is lawful in light of the Shareholders’ Agreement which the Plaintiff claim to be the majority shareholder of the 2nd and 3rd Defendants and, 40 by extension, the 4th to the 11th Defendants. A consequential issue arising out of such issue is the legality of the removal of the Plaintiff as director of the 4th to the 11th Defendants;

it is argued by the 1st Defendant that clause 3 of the Shareholders’ Agreement is impossible for performance because he claims he does not own 100% of the 2nd and 3rd Defendants and the assets and therefore he cannot sell the said assets in full. In this respect it must be noted that the 1st Defendant executed the said agreement which contain the said clause 3 which is now said to be impossible to be performed. The said clause 3 seems to indicate otherwise. There is no element of fraud or misrepresentation pleaded by the 1st Defendant when he executed the Shareholders’

it is the 1st Defendant’s position that since the Plaintiff failed to exercise the Option, the Option lapsed after the expiry of a reasonable time. Whereas the Plaintiff argued that he has been prevented from exercising the Option by the 1st Defendant’s willful refusal to transfer the first tranche of 50% of the 1st Defendant’s shares in the 2nd Defendant to the 41 Plaintiff. According to the Plaintiff the transfer of the first tranche of shares would enable him to decide whether to exercise the Option. In this respect it is noted clause 3 of the Shareholders’ Agreement does not stipulate any time limit for the Plaintiff to exercise the Option. At the same time, the said clause 3 does not state the exercise of the Option by the Plaintiff is subject to the transfer of the first tranche of 50% of the 1st Defendant’s shares in the 2nd Defendant;

the 1st Defendant’s position is that the Shareholders’ Agreement clearly envisages a complete sale of the 2nd and 3rd Defendants’ material assets. It is the Defendants contentions that the Plaintiff knew about this as he actually attended the opening of bids on 20 April 2017. However the Plaintiff' argued the Shareholders’ Agreement envisages a sale of the material assets of the 2nd and 3rd Defendants to the Plaintiff and not a third party. This is because both clause 2 (which provides for subsequent accounting exercise to determine whether there are monies owe by the Plaintiff and the 1st Defendant against each other) and clause 3 (which creates the Option to be exercised by the Plaintiff) are contingent upon a complete sale of the said material assets. 42 Thus the sale of the material assets must means a sale of the said assets to the Plaintiff and the tender exercise is merely a price fixing mechanism to determine the value of the said material assets for the exercise of the Option. [43] Premised on the above, the ultimate issue to be determined is the validity and / or interpretation of the Shareholders’ Agreement. In addressing the above issues the court is required to analyse the factual matrix forming the background which led to the execution of the Shareholders’ Agreement (Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v N-Concept Sdn Bhd [2010] 1 MLJ 597). Needless to say, these issues which essentially relate to the interest of the Plaintiff and 1st Defendant in the 2nd to the 11th Defendants are serious issues which need to be ventilated and adjudicated. Thus, on the facts, the claims made by the Plaintiff in his Statement of Claim cannot be said frivolous and vexatious. Balance of convenience [44] It is the contention of the Defendants that the injunction will have the effect of crippling the 2nd to the 11th Defendants as the said Defendants are restrained from holding any meetings, thus prohibiting 43 them from implementing any resolutions passed and decisions made by the same. [45] In this respect it is noted prayer 1.2 and 1.3 of enclosure 3 appears to restrain the Defendants from requisitioning or convening any shareholders meeting of the 2nd to 6th and the 11th Defendants and from implementing or carrying out resolutions passed at any such meeting. However such restraint ought to be read with the other subsequent prayers which sought to restrain the Defendants from removing the Plaintiff as a director of the 2nd to the 11th Defendants and from dealing with the shares / assets in the 2nd and 3rd Defendant which is the subject matter of the Shareholders’ Agreement. Thus the injunction is only in respect of shareholders meeting which concerns resolution for the removal of the Plaintiff as director and / or dealing with the assets of the 2nd and 3rd Defendants. It is intended to preserve the status quo pending disposal of the dispute between the Plaintiff and 1st to the 11th Defendants. It is not intended to stop the 2nd to the 11th Defendants from operating and carrying on their usual day to day business. [46] Since the Assets intended to be sold is material assets of the 2nd and 3rd Defendants which in turn is the subject matter of the Shareholders’ Agreement the validity and interpretation of which remain 44 a bone of contentions between the Plaintiff and the Defendants, it is my considered opinion that the balance of convenience tilt towards the Plaintiff. The existing state of affairs between the Plaintiff and the Defendants in relation to the status of the Lands must be maintained so as not to prejudice the integrity of this case which is ongoing. The evidence shows the 1st Defendant who is in control of the 2nd to the 11th Defendants is determined to proceed with the sale of the Assets and resolutions to that effect were passed even though they are aware of the Ad Interim Injunction. The 1st Defendant’s wish to sell the Assets for purpose of his estate planning calls into question the true purpose of the sale – whether for the benefit of the 2nd Defendant company or the personal benefit of the 1st Defendant. If the Assets are sold then the very thing, that is, the Assets which is a fundamental and integral part of the Shareholders’ Agreement which is the basis of dispute between the parties would no longer be in existence. In view of the historical underground gold mine, sentimental value and the legacy attached to the Assets I am of the view damages is not sufficient as monetary compensation would not be an adequate remedy to the Plaintiff as money is not the ultimate consideration. The Plaintiff would suffer greater injustice of injunction is withheld. Thus, pending determination of the status (validity, enforceability and interpretation) of the Shareholders’ Agreement it is my considered opinion the status quo 45 should be maintained and the Defendants ought to be restrained from dealing and / or disposing the Assets. Delay [47] Taking into account the factual circumstances I am of the view there is no delay on the part of the Plaintiff in applying for an injunction. Assuming there is delay, considering the circumstances of the case the explanation given by the Plaintiff is reasonable. My reasons for saying so is as stated below. [48] The Defendants alleges that the Plaintiff knew about the Letter of Intent on 18 July 2017 but waited until 5 September 2017 to commence this action against the Defendants. It was explained that on the 18 July 2017 the Plaintiff was only informed by the 1st Defendant that he had signed the Letter of Intent. In fact in a letter dated 27 July 2017 (Exhibit A-19 of enclosure 4) to the 13th Defendant (the secretary to the 2nd to the 10th Defendants), the Plaintiff informed he was not provided with any documentation regarding the purported sale and that he had not sight of the Letter of Intent and requested for the relevant documents and information. The 13th Defendant replied she was not in possession of any documents to provide to the Plaintiff. It was only on 17 August 2017 46 the Plaintiff sighted the Letter of Intent which was attached to minutes of the board meeting of the 2nd Defendant held on 28 July 2017 which the Plaintiff refused to attend because he claim the said meeting was not properly requisitioned and that he was not provided with the relevant documentation and information. [49] The Defendants also allege the Plaintiff failed to commence action promptly against the Defendants when the 1st Defendant breached the Shareholders’ Agreement dated 16 January 2017 when the 1st Defendant failed to transfer 50% of 1st Defendant’s shares in the 2nd Defendant. In this respect considering the factual circumstances which relate to Underlying Agreement followed by the history of exchange of acrimonious correspondence between the Plaintiff and the Defendants (in particular the 1st Defendant) in respect of the interpretation of the Shareholders’ Agreement (in particular clause 2 and 3 in relation to the exercise of the Option and the sale of the assets of the 2nd and 3rd Defendants to determine the price of the Option), the exchange of numerous and various allegations and accusations between the Plaintiff and the 1st Defendant, meetings of the 2nd to the 11th Defendants for the removal of the Plaintiff as director and for the approval of the sale of the Assets to Matang Berhad and the disputes surrounding thereto I accept the explanation by the Plaintiff that he has to be sure that the 1st 47 Defendant has no intention of complying with the Shareholders’ Agreement before he decided to commence action against the 1st Defendant and applied for injunction to restrain the sale of the Assets. On top of it all, it was not the Defendants’ case that they have suffered prejudice by reason of the delay. Enclosure 37 – application for fortification [50] It is the Plaintiff’s financial position which prompted the 1st and 2nd Defendants to move this court for an order that the Plaintiff provide fortification in respect of the Plaintiff’s undertaking as to damages given in support of the Plaintiff’s application for injunction in the sum of RM 20,000,000.00. [51] It is noted the purpose of the undertaking as to damages is to compensate the Defendants in the event the injunction is discharged. Having considered the parties’ contentions and the affidavit evidence in particular the Plaintiff’s financial position, I am satisfied that both the Defendants has shown that it is likely that they may suffer loss as a result of the granting of the injunction and therefore they are entitled to a fortified undertaking. Nevertheless I am of the view the sum sought by 48 the 2nd and 3rd Defendants at this juncture is not tenable. My reasons for such decision is provided below. [52] At the outset, it must be borne in mind the Assets which was put up for sale via the tender exercise is the subject matter of the Shareholders’ Agreement. As narrated above, it is a bone of contention between the Plaintiff and the Defendants whether the Assets was intended to be sold or that the tender exercise is merely a price fixing mechanism for purpose of determining the market value of the Assets. Thus to use the sale of the Assets and the purchase price offered by Matang Berhad as the determining factor of the quantum of the security to be provided by the Plaintiff, to my mind, is not appropriate. [53] Based on their affidavits, the sum RM 20,000,000.00 sought by the 2nd and 3rd Defendants against the Plaintiff is the amount which both the Defendants alleged to be the loss which will be suffered by them as a result of the injunction restraining the 2nd and 3rd Defendants from disposing the Assets to Matang Berhad. It is the Defendants’ argument that they would not be able to procure another purchaser who will be able to purchase the Assets at RM 180,000,000.00. Both the 2nd and 3rd Defendants placed heavy reliance on the Letter of Intent issued 49 by Matang Berhad to them to support their claim for a sum RM 20,000,000.00 to fortify the Plaintiff’s undertaking as to damages. [54] After perusing the Letter of Intent I am incline to agree with the Plaintiff’s argument that such reliance is misplaced. It is evidently clear from the said letter that it was not intended to have a binding and legal effect on the parties (see paragraph 6 of the Letter of Intent). The said letter merely expressed Matang Berhad’s interest / intention to purchase the Assets at RM 180,000,000.00 subject to all those terms and conditions stated in the said letter. Among the conditions stated are that the sale of the Assets –

is subject to the execution of a binding contract between the parties in respect of the sale and purchase of the Assets; and

is subject to a due diligence to be conducted by Matang Berhad who will be entitled, on its sole and absolute discretion, to decide whether it is satisfied with the outcome of the due diligence and whether or not it will proceed with the sale and purchase of the Assets. 50 [55] There is no evidence adduced to show a sale and purchase agreement of the Assets for RM 180,000,000.00 was executed by the parties. As such, to say that the Defendants will definitely suffer a loss of RM 20,000,000.00 (in his oral submission learned counsel for the 2nd and Defendants increased it to RM 40,000,000.00) because they could not sell the Assets to Matang Berhad, to my mind is a bit of a stretch. Besides that, the Defendants’ allegation that there will not be another purchaser who will buy the Assets at RM 180,000,000.00 due to the market condition is also not supported by any evidence. [56] Thus the question here is the quantum of the security that the Plaintiff ought to provide. The undertaking is intended to provide security to the Defendant in the event the injunction is discharged. However it must be borne in mind no matter how much the Plaintiff is ordered to provide fortification for his undertaking as to damages, at the end of the day it is still incumbent on the 2nd and 3rd Defendants to prove and quantify the losses they suffered as a result of the injunction. Taking into account the facts and the circumstances I am of the view a sum of RM 500,000.00 is reasonable. 51 Conclusion [57] Based on the grounds stated above, allowed the Plaintiff’s application for an injunction, dismissed the Defendants’ application to set aside the Ad Interim Injunction and allowed the Defendants application for the Plaintiff to provided fortification as to the undertaking to damages in the sum of RM 500,000.00. ( KHADIJAH BINTI IDRIS ) JUDICIAL COMMISSIONER HIGH COURT (COMMERCIAL DIVISION) DATED 30 NOVEMBER 2018 Counsel: Plaintiff : Dato’ Malik Imtiaz, Mahathir Abdullah, Mark Ho and Surendra Ananth of Messrs Athi Seelan Mahathir And Partners Defendant : Datuk Seri Gopal Sri Ram, S P Tan and Damien Chan of Messrs Y.C. Wong (for the 1st – 11th Defendants) : Farez Bin Mohd Ali Jinnah of Messrs Farez Jinnah (for the 12th Defendant) : Ng Chin Wern of Messrs Ranjit Ooi & Robert Low (for the 13th Defendant)