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

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LEE SIEW KIN ... DEFENDANTS GROUNDS OF JUDGMENT BACKGROUND [1] On 5.9.2017 the Dato' Sri Andrew Kam Tai Yeow ("DS Andrew" or “Plaintiff”) filed the current Suit against his father, Tan Sri Dato' Kam Woon Wah ("TS Kam" or “Defendant”), and the other 12 defendants for specific performance of a document signed between DS Andrew and TS Kam dated 16.1.2017. [2] In his claims DS Andrew referred to that document as “16.1.2016 Shareholders’ Agreement”, while TS Kam in his defence calls it “purported agreement”. This Court refers to it as “16.1.2017 Document” and as this Court had declared the 16.1.2017 as a valid contract between DS Andrew and TS Kam, the said document would be interchangeably referred to as “the agreement” or “16.1.2017 Document” or “the Document” throughout this Grounds. [3] DS Andrew contended that the 16.1.2017 Document provides that 50% of TS Kam's interest in the 2nd Defendant belongs to DS Andrew, with DS Andrew having the option to buy out the balance of 50% of TS Kam's interest in the said 2nd Defendant. DS Andrew further contended that TS Kam held the said remaining 50% interest on trust for him and TS Kam shall ensure that the remaining 50% shares was not utilised in a manner contrary to DS Andrew's interest. [4] Corporate Defendants 2-11 ceased to be party in the Suit on 21.02.2023 when the Federal Court dismissed DS Andrew’s leave application and effectively restored the Court of Appeal’s decision of 12.01.2022 to strike out the Suit against D2-D11. Action against D12 and D13 had been discontinued earlier. [5] With that, the Suit is now only between DS Andrew and his father TS Kam. [6] At the end of the trial, this Court decided to partially allow the Plaintiff’s claims and ordered as follows:

The 16.1.2017 Document is a valid contract between the Plaintff and the Defendant;

Paragraph (i) of the Plaintiff’s Statement of Claim (“SOC”) is allowed;

Paragraph (ii) of the SOC is allowed with amendment;

Paragraph (iii) of the SOC is allowed with amendment;

Paragraph (iv) of the SOC is allowed with amendment;

Paragraph (v) of the SOC is allowed with amendment;

Paragraphs (vi) and (viii) of the SOC are disallowed;

No order is made on paragraphs (ix) (x)(xi) (xii) of the SOC relating to the removal of the plaintff as director of the RMDC, Raub Oil Mill Sdn Bhd (“ROM”) and the other companies originally named as the 4th-11th Defendants in this Suit namely:

No order is made on paragraph (xiii) of the SOC on the dilution of the shares of RMDC, ROM and the companies originally named as the 4th-11th Defendants in this Suit as listed the preceding paragraph;

No order is made on paragraph (xiv) of the SOC relating to the assets of RMDC and ROM, shares of ROM and the properties listed out in paragraphs (xiv)(a)(-(c) of the SOC;

In view of the above declarations, this Court further declares that there was no breach of the 16.1.2017 Document by the Defendant. Thus, paragraph (vii) of the SOC for specific performance of the 16.1.2017 Document is disallowed. [7] Both the Plaintiff and the Defendant appealed against the decision. This Grounds apply to both appeals. THE PLAINTIFF’S CASE [8] The Plaintiff’s case can be summarized as follows:

By virtue of the 16.1.2017 Document, TS Kam acknowledged that 50% of TS Kam’s entire interests in Raub Mining & Development Company Sdn Bhd (“RMDC”) (and therefore in Raub Oil Mill Sdn Bhd (“ROM”)) already belonged to DS Andrew. TS Kam further gave DS Andrew an option to acquire the remaining 50% pursuant to a price-fixing mechanism.

(ii) DS Andrew filed the current Suit against his father when he found that TS Kam reneged on the 16.1.2017 Document.

(iii) TS Kam has consistently reaffirmed his obligation to honour the terms of the 16.1.2017 Document and/or affirmed the validity of the 2017 Document.

(iv) This is clearly borne out in TS Kam’s letters to Andrew written after the execution of the 16.1.2017 Document as seen in TS Kam’s letter dated 19.3.2017 where he said: “…bearing in mind 50% of my entire interest in RMDC and ROM are to be given to you”) and 28.3.2017 (“I am still keeping my promise to give you 50% of my entire interest in RMDC and ROM…”

The agreement reached between DS Andrew and TS Kam vide the 16.1.2017 Document was not a family arrangement with respect to TS Kam’s assets, and the manner in which he intended to bequeath the same to his children. In short, it is not about inheritance. Instead a commercial arrangement entered into between the parties in recognition of DS Andrew’s contribution in having turned around RMDC and ROM and the sacrifices he had made in order to do so. TS Kam’s entire interests in RMDC amounts to approximately 90.9% of its shares, directly in his own name and through the following corporate vehicles: Holding Company Holding Company’s Shareholding in RMDC (%) TS Kam’s Shareholding in Holding Company (%) TS Kam’s indirect Shareholding in RMDC through Holding Company (%) Wahbunga 32.07 97.80 31.360 Yum 26.55 82.20 21.824 Yum (via

Kitchen) 55 6.77 1.797 Berjaya Realty 19.84 98.08 19.459 Grandfoods 7.39 66.67 4.927 Lead 0.24 75.00 0.180 Granny’s Kitchen 0.30 66.67 0.200 United Raub Oil Palms (via

Kitchen) 36 33.33 4.453 United Raub Oil (via Coastal

Realty) 36 49.05 6.552 Individuals 0.25 58.33 0.146 TS Kam’s entire interest in

90.90

(vi) TS Kam’s solicitors’ letter dated 29.8.2017, which was issued in response to a legal demand dated 28.8.2017 by DS Andrew through his then solicitors, did not dispute the validity or enforceability of the 16.1.2017 Document. Instead, on the basis that the 16.1.2017 Document was enforceable, they sought to make a claim against DS Andrew on TS Kam’s behalf under Clause 2 of the 16.1.2017 Document.

(vii) Thus, no question can arise as to the validity and enforceability of the said agreement. This is reinforced by the matters that follow as TS Kam cannot dispute what he himself said or had otherwise instructed.

(viii) DS Andrew gave evidence and was subjected to cross-examination on, amongst others, the 16.1.2017 Document, and the surrounding circumstances at the time it was entered into. He further explained the circumstances which led to his having involved himself in RMDC and ROM so as to assist in turning these companies around.

(ix) In contrast, TS Kam elected not to give evidence and thus did not subject himself to cross-examination. This was of tremendous legal significance due to the fact that-

TS Kam is the sole Defendant in this Suit now.

TS Kam disputes the validity of the 16.1.2017 Document not only in his Defence. He took that position in a number of affidavits he affirmed in connection with numerous interlocutory applications before the High Court, in particular a striking out application filed by him which was dismissed on the ground that DS Andrew’s claim was not plainly and obviously unsustainable. That decision as affirmed by the Court of Appeal.

Having disputed the 16.1.2017 Document, it was incumbent on TS Kam to give evidence to support his case and to rebut Andrew’s case.

TS Kam had filed his witness statements in Court and served them on DS Andrew. The fact that that TS Kam’s witness statements are filed unsigned is immaterial. The Court of Appeal had warned against the filing of witness statements which one knows to be false or where the witness does not believe the statement to be true (see: Bhavanash Sharma Gurchan Singh Sharma A v Jagmohan Singh Sandhu & Another Appeal [2024] 1 CLJ 368).

Tan Sri Kam’s election not to give evidence was thus fatal to his Defence. Decisions of the Federal Court in Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181 and Silver Corridor Sdn Bhd v Gallant Acres Sdn Bhd & Anor [2016] 5 MLJ 1 make clear that in such circumstances, an adverse inference is to be drawn that had TS Kam given evidence and been subjected to cross-examination, his evidence would ultimately favour DS Andrew. Those decisions also conclude that in such circumstances, DS Andrew’s evidence is to be presumed to be true.

In light of the above, Tan Sri Kam has no defence to the claim. He is in no position to establish any of his pleaded defences, viz- • no intention to create legal relations; • lack of consideration; • duress/coercion; • that the phrase “entire interests” meant only the 7 shares held directly by TS Kam in RMDC; and • that there was no breach of the agreement because of the term “public auction”, due to the fact that these defences required a factual foundation which, by reason of TS Kam having chosen elected not to give evidence, have not been established. DEFENDANT’S CASE [9] TS Kam’s case can be summarized as follows:

The gist of the DS Andrew’s case is as set out in paragraphs 11 to 25 of the SOC in that the Underlying Agreement is the sine quo non to the 16.1.2017 Document.

(ii) The alleged facts that formed DS Andrew’s claims on the existence of the Underlying Agreement are as follows:

TS Kam, RMDC and ROM were facing severe financial difficulties from the mid-1980s as the Pan Electric Industries crisis hit Malaysia.

DS Andrew’s siblings Linda Kam and Edward Kam who were also directors of RMDC and ROM resigned and left for greener pastures overseas.

TS Kam then told DS Andrew that if he remained with the boards of RMDC, ROM and the group companies, and rehabilitated the poor financial position of RMDC and ROM, TS Kam’s entire interest in RMDC (and therefore ROM) would belong to DS Andrew and would be held by or on behalf of TS Kam for the benefit of DS Andrew until subsequently transferred to DS Andrew.

DS Andrew agreed to TS Kam’s request. This is the “underlying agreement”.

DS Andrew then spent the next 10 to 15 years of his life to rebuild the business, and by around 1997 he had managed to turn the business of RMDC and ROM around and upheld his end of the bargain pursuant to the underlying agreement. Thus, DS Andrew regarded RMDC and ROM as primarily his companies.

TS Kam agreed, acknowledged and recognised this and reiterated through various conversations with DS Andrew that DS Andrew had earned 100% of TS Kam’s interest.

However, DS Andrew did not demand for the formal transfer of TS Kam’s 100% interest due to the nature of the father-son relationship and TS Kam’s desire to be perceived as the patriarch of the family companies.

Due to the above circumstances, TS Kam held his entire interest in RMDC as trustee for the benefit of DS Andrew who was the beneficial owner.

In order to achieve a compromise and for the sake of peace in the family, DS Andrew agreed to vary the underlying agreement such that he would sacrifice his beneficial ownership of 50% of TS Kam’s interest in RMDC and in consideration DS Andrew would have the benefit of a first or priority option over the balance 50% interest of TS Kam in RMDC. Based on such premise, DS Andrew and TS Kam entered into the 16.1.2017 Document which was drafted by them together.

Subsequently, TS Kam refused to honour or acknowledge the underlying agreement and the legally binding 16.1.2017 Document and breached his trust obligations.

(iii) Due to the above facts pleased by DS Andrew there is a clear interdependency between the underlying agreement and the 16.1.2017 Document in support of the DS Andrew’s case against TS Kam.

(iv) Whether the purported agreement could be specifically enforced DS Andrew must prove the following on a balance of probabilities: First, there must be an underlying agreement. Without that the pleaded variation would lose its basis to stand on. Then, there must be consensus ad idem that such variation is to be regarded as a compromise. Without that it means there was no consideration flowing from the plaintiff. And finally, there must be an intention between TS Kam and DS Andrew to be legally bound by the underlying agreement and the 15 16.1.2017 Document. Commercial sense presumption is wholly inapplicable in the present circumstances.

At all times material to this action, RMDC’s shares were held by several corporate shareholders and some individuals. TS Kam held 7 out of 6,764 shares in RMDC, and RMDC wholly owned ROM. TS Kam was the managing director of RMDC and the chief executive officer of ROM. TS Kam was also a shareholder and director of the corporate shareholders of RMDC.

(vi) At the material times DS Andrew held 1 share in RMDC. He was made a director of RMDC by TS Kam on 23.1.1986. He retired by rotation on 31.12.2017 and was not reappointed.

(vii) DS Andrew is a compulsive gambler. All his businesses have been total failures since 2013/2014. He and all his companies have since been ridden with debts and are facing multiple legal suits including foreclosure proceedings of his residence, bankruptcy and winding up proceedings, multimillion overseas gambling debts, car hire purchase loan recovery and repossession, EPF arrears of his company workers, LHDN tax claims, recovery of personal loans by relatives and acquaintances, credit card debts etc.

(viii) Many of the suits against DS Andrew have resulted in judgment debts, as a result of which he has also faced multiple bankruptcy proceedings. One of DS Andrew’s companies, Raub Australian Gold Mining Sdn Bhd (“RAGM”) went into voluntary liquidation with debts totalling around RM300 million. His flagship company, Peninsular Gold Limited (“PGL”), was delisted and deregistered with its share value reduced to zero. He has even sold his residence and moved to a rented house, and has been hiding his actual address in order to evade service of legal process.

(ix) DS Andrew and his family (his wife Gazel Ong and his daughter Hannah Kam) relied on TS Kam’s generosity for many years and have been habitually taking monies (often in the hundreds of thousands or millions) from TS Kam and TS Kam’s companies.

In 2016, when TS Kam refused to give/advance more monies to DS Andrew while DS Andrew was facing tremendous pressures from numerous creditors including judgment creditors and unlicensed moneylenders, DS Andrew invented a tale of the Underlying Agreement and used it to illegitimately pressurise TS Kam to sign the 16.1.2017 Document.

(xi) TS Kam denies the existence of the Underlying Agreement and disputes the legality, validity and/or enforceability of the purported agreement based on the matters averred in his defence and as summarily set out above. TS Kam also denies DS Andrew’s interpretation of the terms of the 16.1.2017 Document.

(xii) It is axiomatic that the burden of proving both the validity and the interpretation/effect of the 16.1.2017 Document lies with DS Andrew.

(xiii) TS Kam had demonstrated that DS Andrew has proved none of the essential ingredients of a legally binding contract viz consensus ad idem, intention to create legal relations and consideration.

(xiv) DS Andrew’s attempt at re-examination to reduce the role of the alleged Underlying Agreement into a mere background and context (see NOP 19/09/2023, Encl. 962 page 13 line 22 to page 16 line 25) is futile. This new twist of his stand merely goes to show his complete lack of belief in his own story of the Underlying Agreement.

(xv) DS Andrew’s reference to the 16.1.2017 Document as “the shareholders’ agreement” is misconceived and misleading as it was only signed between the father and the son, and not signed by the other shareholders of RMDC. At the material time of the signing of the Document, the shares held by both father and son in RMDC added together were only 8 out of 6,764.

(xvi) In essence, the Defendant’s case is that -

The alleged Underlying Agreement never existed;

The legal consequences of the non-existence of the alleged Underlying Agreement is that the acknowledgement of DS Andrew’s right in Clause 1 of the 16.1.2017 Document is ineffectual as it was an acknowledgment of DS Andrew’s untrue, frivolous and mala fide claims;

The 16.1.2017 Document is void and/or invalid, unenforceable, and the equitable relief of specific performance is unavailable to DS Andrew, mainly due to the fact that – • It is void for want of consideration; • It is a family or domestic arrangement and there was no intention to create legal relationship; • It is void for uncertainty; and • It was obtained by undue influence and/or duress and/or illegitimate pressure. FINDINGS OF THIS COURT Ruling on the Defendant’s application for determination on a question of law under O.14A in Encl 1048 dated 14.1.2025 [10] On a date when this Court had scheduled to deliver its decision on this Suit, TS Kam filed an application in enclosure 1048 (yes, enclosure One Thousand and Forty Eight) with Perakuan Segera seeking this Court, at this juncture, to decide a sole question of law pursuant to O.14A: whether DS Andrew’s current Suit against TS Kam is sustainable due to various key developments, viz-

DS Andrew’s stance and his pleaded case in his new Suit WA- 22NCC-103-02/2024 (“Suit 103”) that his rights in this current Suit has been defeated by the loss of his shares in and the enlargement of the share capitals in the corporate shareholders of RMDC and that such loss of his shares and the enlargement of share capitals were wrongful, null and void;

(ii) The KL High Court’s decision on 14.10.2024 to strike out that Suit 103;

(iii) COA’s decision dated 12.1.2022 to strike out DS Andrew’s claims against the Corporate Shareholders; and

(iv) COA’s decision dated 29.11.2024 setting aside the injunction issued by this Court on 24.5.2023 against TS Kam. [11] It is TS Kam’s position vide his encl 1048 that as DS Andrew himself had pleaded in Suit 103 that his rights in this current had been defeated, DS Andrew’s alleged rights and cause of action in this Suit no longer can be sustained and is now academic due to the above developments. [12] This Court had decided to dismiss encl 1048 with no order as to costs. Legal status of the 16.1.2017 Document [13] As set out earlier, both parties agree that the core issue to be decided by this Court is the legal status of the 16.1.2017 Document, which DS Andrew refers to as “Shareholders’ Agreement”, and TS Kam refers to as “Purported Agreement”. This Court refers to that document as the “16.1.2017 Document” or “2017 Document” or “the agreement”. [14] Both parties do not dispute that they have signed the 16.1.2017 Document. But while DS Andrew argues that Document is a legally binding contract between them, TS Kam argues that it is a non-legally binding family arrangement. [15] TS Kam has taken the position that the 16.1.2017 Document is invalid and/or unenforceable due to (a) lack of intention to create legal relations because it is a mere “family arrangement”, (b) lack of consideration; and (c) that TS Kam was “pressured” to sign the agreement. DS Andrew is saying the complete opposite. [16] Before I deal with the issue of validity and enforceability of the 16.1.2027 Document, I must firstly determine the legal status of the so- called Underlying Agreement, alleged by DS Andrew as a precursor to the 16.1.2017 Document. The Underlying Agreement [17] As stated earlier, DS Andrew alleged that during the financial crisis in the 1980s, he had agreed to stay on to rehabilitate the poor financial position of RMDC and ROM, on the understanding that TS Kam's entire interest in RMDC and ROM would belong to DS Andrew and would be held by TS Kam for the benefit of DS Andrew until subsequently transferred to DS Andrew. This is briefly the purported "Underlying Agreement'. [18] DS Andrew claimed to have managed to turn the business of RMDC and ROM around 1997, therefore demanded his end of the bargain under the Underlying Agreement. [19] DS Andrew claimed he did not demand for TS Kam to transfer TS Kam’s 100% interest in RMDC to DS Andrew, inter alia, due to the close relationship of father-son and there was no reason for DS Andrew not to distrust his own father. [20] DS Andrew further claimed that around 2010 TS Kam has failed to honour the Underlying Agreement. [21] Eventually, as a compromise and for the sake of peace in the family, DS Andrew agreed to vary the Underlying Agreement on the terms as set out in the 16.1.2017 Document. [22] It is trite law that DS Andrew is placed on strict proof to satisfy this Court on the existence of the Underlying Agreement. The law requires DS Andrew to tender adequate contemporaneous documents to establish the existence of the Underlying Agreement: Sang Lee Co Sdn Bhd v Subramaniam a/l Mayawan & Ors [2011] 5 MLJ 374. I also apply the decision of Keongco Malaysia Sdn Bhd v Ng Seah Hai [2012] 7 MLJ 288 where the High Court held: “In situation such as this when both parties had given diametrically conflicting versions and in the absence of any other viva voce evidence from other witnesses, this court will have to look at the other documentary evidence and/or the conduct of the parties to determine the probability and improbability of the case. In the present world, the conventional mode of doing business based on trust and oral contract may appear outdated. Nevertheless, the law still recognises an oral contract provided that the party concerned will be able to prove the existence of such a contract and its validity. As allegation of the existence of oral contract is so vulnerable of being concocted in the sense that it could be easily alleged to suit one's claim, the court must scrutinise evidence adduced with magnifying eyes to evaluate such evidence stringently. All necessary ingredients in law of a contract must be strictly proved by the plaintiff to satisfy fundamentally the existence of a contract. Any flimsy evidence must be rejected. Strict proof must be adhered to.” [23] DS Andrew relied on a handwritten note of TS Kam dated 29.10.2016 which reads as follows: “To sell plantation and oil mill through CH Williams and Skrine on public tender. I reserve the right not to sell to anybody. No. 3, ask Skrine for legal opinion whether the reservation clause had ever been challenged or any state law. I give you all documents given to CH Williams and Skrine. No. 5, after opening of tender offer price, I reserve the right either to sell or not to sell. If I want to sell, I give you first right of refusal within three months, in accordance with the payment terms as shown in CH William’s letter of offer. No. 6, I will give you a copy of the tender/legal documents for your perusal within two weeks. No. 7, if you take over, you would take RMDC and ROM.” [24] I ruled that that handwritten note is not the envisaged contemporaneous document. Firstly, the “ifs’ in that handwritten note does not correspond with the terms set out in the 16.1.2017 Document. Secondly, the contents of the handwritten note directly contradict DS Andrew’s allegation that he was the beneficial owner of TS Kam’s 100% interest in RMDC and ROM, and that TS Kam held such interest as trustee for DS Andrew’s benefits. Clearly, if TS Kam merely held his entire interests on trust for DS Andrew then DS Andrew must explain why the 16.01.2017 Document provide for

TS Kam to reserve any “right” to sell or not to sell the companies’ assets;

(ii) TS Kam to be deemed entitled to give DS Andrew the right of first refusal; and

(iii) DS Andrew to be required to pay the tender price in accordance with the tender payment terms if he opted to purchase the assets. [25] I further found that DS Andrew failed to prove one of his main claims that brought about the Underlying Agreement, that RMDC and ROM faced severe financial difficulties in mid-1980s. The key witness on this issue is PW4, Chew Tee Beng, a director and finance manager of both ROM and RMDC, whose evidence is binding on the plaintiff as submitted above. He had joined these companies since 1989. Under cross-examination, he confirmed that these companies were never in financial distress in 1980’s or 90’s to 2000 (See NOP 06/07/2022, Encl. 940 page 49 lines 32 to 36). He also confirmed that the so-called Pan Electric Crisis did not have any impact on these companies (See NOP 06/07/2022, Encl. 940 page 52 lines 3 to 11). He disagreed that the companies were in a very bad shape and were turned around by the Plaintiff (See NOP 06/07/2022 Encl. page 52 lines 30 to 35). [26] Another claim raised by DS Andrew in support of his allegation as to how the Underlying Agreement came about was that he had successfully rebuilt RMDC and ROM’s ailing businesses. Based on the evidence of the witnesses during trial, this Court rule that this contention is baseless and without basis. PW3 (Edward Kam) and PW4 (Chew Tee Beng) both admitted and confirmed that DS Andrew actually did not rebuild the companies’ business. PW3 said under cross-examination that the Plaintiff was not in charge of the affairs of either ROM or RMDC, and was never around at all during the tenure of PW3 at these companies. PW4 said under cross-examination that DS Andrew did not assist or help in the companies. DW3 (Tai Swe Chong), a director and the general manager of ROM, who started getting involved in ROM’s business in 1989, also confirmed that DS Andrew did not help in any way to improve the performance of ROM’s mill as he did not know much about the palm oil milling business. DW2 (Linda Kam) testified that DS Andrew was not involved in the day to day business of RMDC and ROM. [27] Based on the above evidence and finding of fact, I conclude that DS Andrew failed to prove the existence of the Underlying Agreement. [28] However I disagree with the submission of the Defendant’s counsel that having found that the Plaintiff failed to prove the existence of the Underlying Agreement automatically render the acknowledgement in Clause 1 of the 16.1.2017 to be an acknowledgement of an untruth, frivolous and mala fide claim and consequentially Clause 1 shall be declared to be of no effect and cannot be upheld by this Court. [29] The determination on the legality of the 16.1.2017 Document must be taken as a whole and this Court cannot decide on the clauses of the 16.1.2017 Document separately and independently without looking at the document in its entirety. I further hold the view that the determination on the legality of the 16.1.2017 Document is a separate matter with the issue of the existence or otherwise of the Underlying Agreement. [30] It is my finding that the 16.1.2017 Document must be interpreted within the terms found therein and nothing else. Validity and enforceability of the 16.1.2017 Document [31] TS Kam argued that the 16.1.2017 Document is invalid, null and void and unenforceable as a contract as-

it was merely a family arrangement between father and son, and there was no intention to create legal relations;

(ii) it is void for want of consideration;

(iii) it was signed by TS Kam under duress or coercion; and

(iv) it violates s. 228 of the Companies Act 2016 as it was entered without the requisite resolutions of the companies. [32] It is TS Kam’s case further that, in any event-

the phrase “entire interest” in Clause 1 merely relates to TS Kam’s 7 shares directly hold by TS Kam in RMDC – meaning DS Andrew is entitled to 3 ½ shares (50%) in RMDC; and

(ii) the phrase “public auction” in Clause 3 does not include the Public Tender exercise conducted on 20.4.2017. Since no “public auction” was ever held, there was no breach of the 16.1.2017 Document by TS Kam, and consequentially no breach of trust by TS Kam. [33] Having perused the evidence before this Court comprising the letters exchanged between DS Andrew and TS Kam, I conclude that their communications after the signing of the 16.1.2017 Document showed clearly that they both do not write the usual Father-Son letters asking about each other’s health, showing love and affection, telling Father-Son jokes, or anything of that sort. Their writings are jam-packed with telling their respective legal interpretations and legal understanding of the terms of the 16.1.2017 Document. That 16.1.2017 Document is everything but a mere family arrangement between father and son. [34] Foremost are the letters sent by DS Andrew to TS Kam dated 19.3.2017 and 28.3.2017, and DS Andrew’s solicitor’s letter dated 29.8.2017 – which had all affirmed the validity of the 16.1.2017 Document and reiterated TS Kam’s commitment to fulfil his obligations under the 2017 Document, particularly to give 50% of his interest in RMDC and ROM to DS Andrew. The language used by both were very cut and dry, very business-like, which clearly shows that they both intended to create legal relations between them through that 16.1.2017 Document. Apart from that, the subject matter of the 16.1.2017 Document is business affairs and not domestic-related. These are some of the subsequent conduct of the parties to demonstrate to this Court that they intended to create legal relations. [35] As I had made a finding that there was no Underlying Agreement that precursored the signing of the 16.1.2017 Document, I would consequentially reject any arguments by DS Andrew that some terms contained in the Document formed his compromise from what was originally agreed in the Underlying Agreement. I therefore reject DS Andrew’s contention that Clause 1 of the 16.1.2017 Document which provides for TS Kam agreeing to depart 50% of his shares in RMDC to DS Andrew was a written reflection of DS Andrew’s compromise from the original 100% agreed by both of them under the Underlying Agreement. However, I find the agreement by TS Kam to depart 50% of his entire interests in RMDC as a valid consideration. [36] Similarly, Clause 7 which provides that in the event of a complete sale of the assets of RMDC, DS Andrew shall have no further claims against TS Kam is not another compromise on the part of DS Andrew to renounce his rights to sue TS Kam which he was originally entitled under the Underlying Agreement. But that was a stand alone clause agreed by both parties and on its own is another valid consideration. [37] The entitlement of the Plaintiff to the remaining 50% interest in RMDC and ROM as set out in Clause 3 is another valid consideration. [38] There was no evidence furnished by TS Kam to prove his claim that he was pressured or threatened to sign the 16.1.2017 Document. [39] As for the last issue raised by TS Kam, that the 16.1.2017 must be hold invalid as it was signed without the requisite resolution, I hold the view that the requisite resolution is not necessary for the Defendant to sign the 16.1.2017 Document which deals directly on the Defendant’s rights and properties. But as ruled by the COA as stated in the earlier paragraph, the Defendant cannot sign any agreement which affects the rights of the corporate bodies. Before I deal with this issue further, I will pause here to deal with the decision by TS Kam not to come to this Court to give evidence. Defendant’s failure to give evidence in Court [40] I agree with the DS Andrew’s counsel that apart from the evidence already available before this Court, for this Court to make a finding on TS Kam’s allegation that the 16.1.2017 Document is invalid and unenforceable, TS Kam is the only person who can give direct evidence in Court to proof his allegation. As this Court had heard the evidence of DS Andrew on the validity of the Document, TS Kam must give evidence to show to this Court his version, that he had no intention to create legal relations with DS Andrew when he signed the Document, and that the Document was merely a family arrangement, that there was no consideration, and that he was pressured into signing the Document. I agree with DS Andrew’s counsel’s submission that TS Kam’s evidence is critical and determinative. [41] Taking into account –

the entire circumstances and facts surrounding the dispute between the Defendant and the Plaintiff;

(ii) that the 16.1.2017 Document is the core issue to be decided by this Court;

(iii) that the Defendant is the sole Defendant in this dispute;

(iv) that only the Defendant can give the opposite version on the 16.1.2017 Document than that intimated to this Court by the Plaintiff;

the circumstances under which the Defendant decided not to give evidence at the trial before this Court, I am in agreement with the Plaintiff’s counsel that the conclusion that must be drawn by this Court under such circumstances is by applying the principle laid down by the Federal Court in Takako Sakao and Silver Corridor as i had set out the earlier Paragraph 8 (ix) (f). It is my finding that the evidence of the Defendant vis-a-vis the 16.1.2017 Document is true, including his evidence to prove the validity and enforceability of the Document. It does not matter if this Court does not believe the Plaintiff’s evidence because at this stage the truth or falsity of the evidence is immaterial. TS Kam was the only witness that could do that. He was the counter-party to the 16.1.2017 Document and the only person other than DS Andrew who could speak of the surrounding circumstances at the time he signed it. Furthermore, he had issued or caused to be issued letters which stand as contemporaneous documentary evidence of his intention to have a binding agreement with DS Andrew. [42] I therefore draw an adverse inference under s. 114(g) of the Evidence Act against TS Kam on his refusal to give evidence before this Court to assist this Court in arriving at a just conclusion his own contention regarding the validity of the 16.1.2017 Document. [43] This Court concludes that by the terms of the said 16.1.2017 Document, TS Kam and DS Andrew had evinced their intention to enter into a legally binding contract. TS Kam is bound by the principle of promissory estoppel from denouncing his intention to create legal relations with DS Andrew based on the considerations he had agreed upon as set out in the terms of the said Document. [44] At this juncture, it is instructive to refer to the celebrated English authority of Central London Property Trust Limited v. High Trees House Limited [1947] KB 130, known as the High Trees case, where the doctrine of promissory estoppel was reaffirmed and extended in contract law as follows: “…where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense and the effect of the arrangement made is to vary the terms of a contract under seal by one of less value.” [45] This principle was reaffirmed by the Federal Court case of Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283, where His Lordship Gopal Sri Ram JCA (as His Lordship then was) in delivering the judgment of the Court held: “[1] The time has come for this Court to recognise that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. Estoppel is a doctrine of wide utility and could be resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. [2] It is not an integral part of the doctrine of estoppel that a litigant who invokes the doctrine of estoppel must prove that he was induced by the conduct of his opponent to act in a particular way, as all that a representee need do is to place sufficient material before a Court from which an inference may fairly be drawn that he was influenced by his opponent's acting. Likewise, the requirement that the representee should have acted to his detriment is also not part of the doctrine. In this respect, all that needs to be shown is that, in the particular circumstances of a case, it would be unjust to permit the representor or encouragor to insist upon his strict legal rights.” [46] As apparent from the above authorities, the Malaysian legal system recognises the doctrine of promissory estoppel, which prevents a party from going back on a promise or representation made to another party that has reasonably relied on the said promise to its detriment. TS Kam had made representations to DS Kam and encouraged DS Kam to believe the terms as set out in the 16.1.2017 Document. TS Kam cannot alter his position. It would be inequitable and unconscionable for TS Kam to go back and act inconsistently with his representation. [47] It need not be emphasised that the same applies to DS Andrew with regards to his obligations under the Document. [48] Based on this consideration, this Court rule that TS Kam is estopped from denying the legality of the 16.1.2017 he has entered into. [49] Based on the evidence before this Court as I had examined above, I rule that the 16.1.2017 is valid and enforceable. What terms of the 16.1.2017 Document are enforceable? [50] The salient terms of the 16.1.2017 agreement are as follows:

50 per cent of the Defendant's entire interests in RMDC - which includes the Defendant’s entire interests in ROM, a wholly-owned subsidiary of RMDC - belongs to the Plaintiff (“Plaintiff’s Portion”);

In the event of a complete sale of the material assets of RMDC (including the palm oil estate and the palm oil mill) (the "Material Assets of RMDC"), any monies that may be owed by the Plaintiff to the Defendant may be deducted from the Plaintiff's Portion, but the amount of any such deduction shall be determined at a later date by the Plaintiff and the Defendant;

In the event of a complete sale of the Material Assets of RMDC, the Plaintiff is to have the first or priority option to purchase the remaining 50 per cent of the Defendant’s entire interests in RMDC at a price equivalent to the highest tender when the assets of RMDC are put up for public auction in 2017 (the "first or priority option"). If such a sale does materialise and if the Plaintiff does wish to exercise his first or priority option, the Plaintiff shall pay 50 per cent of the purchase price of the assets sold in order to purchase the said assets in full;

In the event of a complete sale of the Material Assets of RMDC, RM40.0 million will be released (being RM20.0 million) from each fifty (50) per cent portion of the said assets for the Defendant’s personal use and expenditure during his lifetime. [51] In determining which part of the 16.1.2017 Document is enforceable, and the interpretation of the phrase “entire interest” and “entire holding” of the Defendant in RMDC as found in paragraphs 1 and 7 of the 16.1.2017 Document, this Court refers to the decision of the COA in Wahbunga Realty Sdn Bhd & Ors v. Dato’ Sri Andrew Kam Tai Yeow & Other Appeals [2023] 2 CLJ 731 where the COA held:

Since the original second to the 11th defendants in this Suit are not parties to the 16.1.2017 Document signed between the Plaintiff and the Defendant, they are therefore not bound by the said Document because of the doctrine of privity of contract.

(ii) The second to the 11th defendants are an entirely distinct and separate juristic entity and personality, and were not parties to that 16.1.2017 Document.

(iii) When the second to the 11th defendants are not parties to the shareholders agreement, the Plaintiff cannot rely on the 16.1.2017 to enforce it on the second to the 11th defendants, on the basis that the Defendant, being a signatory to the 16.1.2017 Document, owns the majority shares in RMDC, directly and indirectly, through the fourth to the 11th defendant.

(iv) The Plaintiff has no privity whatsoever with the second to the 11th defendants with regard to the 16.1.2017 Document, with any resulting right of direct enforcement by the Plaintiff against them, as they owe no contractual or other obligation to him.

Added to that, the COA also find that the fourth to the 11th defendants' shareholding in RMDC belonged to them and not the Defendant. A company is a separate entity distinct from its shareholders and therefore the property owned by the company belongs to it and not to its shareholders. The shareholders have no legal nor equitable rights in the assets of the company. The Defendant has no rights to enter into an agreement dealing with the transfer of those shares. [52] This Court also refers to the decision of the Court of Appeal on 29.11.2024, when the Court allowed the Defendant’s appeal against this Court’s issuance of injunction and held: “5. In our view, there is much merit in the argument of the appellant that the effect of the interim injunction that is the subject of the instant appeal is similar to the first interim injunction that was set aside by the Court of Appeal. The interim injunction seeks to restrain the appellant from dealing with his direct and indirect shareholding in RMDC and ROM although appellant owns only 7 ordinary shares in RMDC. The claim of the respondent with regard of the indirect interest of the appellant RMDC and ROM (sic) was roundly rejected by the Court of Appeal when the first interim injunction was set aside. Therefore, the respondent has attempted to reopen an issue that was already decided by the Court of Appeal. Therefore, we see no basis for the respondent to restrain the rights of the appellant qua shareholder in the corporate defendants. We find that the High Court did not give sufficient consideration to the fact that the interim injunction in question seeks to achieve the same result as the first interim injunction that was set aside. [53] I rule that the enforceability of all or any provisions of the 16.1.2017 Document shall be subjected to the above conclusions of the Court of Appeal. [54] Taking into account the decisions of the Court of Appeal as set out in the foregoing paragraphs, I rule that TS Kam’s entire interest is only 7 shares in RMDC based on the following reasons:

The only shareholders of RMDC who signed the 16.1.2017 Document were TS Kam and DS Andrew. The other shareholders of RMDC did not sign the Document. The corporate shareholders are not even mentioned in the Document.

(ii) TS Kam has no rights to deal with the other shareholders’ shares.

(iii) DS Andrew’s claim that TS Kam’s entire interest includes his direct interest - shares in RMDC held by TS Kam personally - and his indirect interest - shares held by him through the corporate shareholders and by that it means TS Kam must cause the shares of RMDC held by the corporate shareholders as calculated by DS Andrew in his SOC to be transferred to him is against basic company law that a company is a separate legal entity and that its property belongs to it and not its shareholders : North Plaza Sdn Bhd v United Securities Sdn Bhd [2010] 1 MLJ 631; Wahbunga Realty Sdn Bhd & Ors v Dato’ Sri Andrew Kam Tai Yeow & other appeals [2023] 2 MLJ 799.

(iv) Further, the Court of Appeal has in striking out the DS Andrew’s claim against the corporate defendants specifically and expressly decided that TS Kam was not entitled to enter into a contract to deal with the shares held by the said corporate shareholders as they are separate entities.

The phrase “the father’s entire interests in RMDC which includes the father’s entire interests in ROM, a wholly-owned subsidiary of RMDC” found in Clause 1 of the 16.1.2017 therefore must refer to TS Kam’s personal shares but does not and cannot refer to TS Kam’s interests in the corporate shareholders or any other company. [55] Based on the above considerations, I rule that the term “entire interest” in the Document shall not include TS Kam’s so-called “indirect interest”. The COA had decided unequivocally that DS Andrew and TS Kam cannot by agreement dispose of or deal with such “indirect interest”. The provision in the Document which relates to the Defendant’s so-called “indirect interest” is void ab initio and unenforceable in law. It follows that DS Andrew’s claim must only be confined to whatever actual and direct number of shares that TS Kam hold in RMDC. [56] In essence, this Court rule that:

Paragraph (1) of the 16.1.2017 Document is valid and enforceable in full force, with the definition of “entire interest” found in this paragraph to have its ordinary literal meaning that is the entire interest of TS Kam in RMDC means the actual and direct shares and interest hold by TS Kam personally in RMDC, and shall exclude the indirect interest hold by TS Kam through any other companies or entities.

(ii) Paragraphs (2) (3) (4), (5) (7) (8) of the 16.1.2017 Document shall have no force in law to the extent when these paragraphs provide that DS Andrew and TS Kam had usurped the powers of the former corporate defendants RMDC, ROM, Wahbunga, Yum, Berjaya Realty, Grandfoods, Lead Enterprises, Granny’s Kitchen, United Raub Oil Palms and Coastal Realty. This is in light of the earlier decision of the COA that TS Kam cannot decide for the corporate bodies despite him holding shares therein, majority or otherwise.

(iii) Consequentially paragraph (6) of that 16.1.2017 Document is unenforceable. [57] Based on the foregoing -

This Court declares that the 16.1.2017 Document is a valid contract between the Plaintiff and the Defendant;

Paragraph (i) of the SOC is allowed: this Court declares that the said agreement provides that 50% of the Defendant’s entire interest in RMDC belongs to the Plaintiff with immediate effect;

Paragraph (ii) of the SOC is allowed with amendment: this Court declares that the Defendant hold in trust for the Plaintiff 50% of that portion of the shares of the Defendant in RMDC as mentioned in (b) above;

Paragraph (iii) of the SOC is allowed with amendment: that the Plaintiff is the beneficial owner of 50% of the balance shares of the

Paragraph (iv) of the SOC is allowed with amendment: that this Court declares the “entire interest of the Defendant in RMDC” means the actual and direct shares and interest hold by the Defendant personally in his name in RMDC, and shall exclude any indirect interest in any form hold by the Defendant through any other companies;

Paragraph (v) of the SOC is allowed with amendment: The Plaintiff has the right of first refusal or option to purchase from the Defendant the balance 50% of the Defendant’s entire interest in the RMDC;

Paragraph (vi) of the SOC is disallowed;

Paragraph (viii) of the SOC is disallowed;

No order is made on paragraphs (ix) (x)(xi) (xii) of the SOC relating to the removal of the plaintiff as director of the RMC, ROM and the other companies originally named as the 4th-11th Defendants in this Suit;

No order is made on paragraph (xiii) of the SOC on the dilution of the shares of RMDC ROM and the companies originally named as the 4th- 11th Defendants in this Suit as listed the preceding paragraph;

No order is made on paragraph (xiv) of the SOC relating to the assets of RMDC and ROM, shares of ROM and the properties listed out in paragraphs (xiv)(a)(-(c);

In view of the above declarations, this Court further declares that there was no breach of the 16.1.2017 Document by the Plaintiff. Thus, paragraph (vii) of the SOC for specific performance of the agreement contained in the 16.1.2017 Document by the Defendant is disallowed. [58] The Plaintiff’s claims against the Defendant is therefore only partially allowed. DATED 31 DECEMBER 2025 MOHD RADZI BIN HARUN JUDGE HIGH COURT KUANTAN Counsel for the Plaintiff: Tetuan Chellam Wong SECARA EMEL Unit L-06-08, No. 2 Jalan Solaris, Solaris Mont Kiara, 50480 Kuala Lumpur [Ruj: CW/L/MH/TS/4745.2023] Counsel for Defendants: Tetuan Siew, Khairul & Co. B-3-26, Blok Bougainvillea 10 Boulevard, Off Lebuhraya Sprint PJU 6A, 47400 Petaling Jaya