Dynasty Palace Sdn. Bhd. v 1. ) SHAHRIZAT RASHID & LEE (PA-22NCvC-84-04/2021)

SHAHRIZAT RASHID & LEE (Didakwa sebagai satu firma guaman)

LIM CHAI LOY (didakwa sebagai seorang individu dan bekas rakan kongsi

LIM MOOK SAN (didakwa sebagai seorang individu dan bekas rakan kongsi Shahrizat Rashid & Lee (cawangan Pulau Pinang))

SHAHRIR ABDUL JALIL (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

YOHAN ANANDA RAJAN (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

LOO MAY PEARL (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

KOMALA VELOO (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

HARJINDER KAUR A/P AJAIB SINGH (didakwa sebagai seorang individu dan rakan kongsi Shahrizat Rashid & Lee) 14/04/2025 07:47:10

NASEEM BINTI MOHAMED ABDULLA (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

NG SU HING (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

MICHELE YEOH EE LEEN (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

SUBRAMANIAM A/L ANJAN (didakwa sebagai seorang individu dan rakan kongsi Shahrizat

ELIZABETH SHANTI A/P FRANK LOUIS (didakwa sebagai seorang individu dan rakan kongsi Shahrizat Rashid & Lee) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT [ENCLOSURE 89] Introduction [1] This is the Appellant’s (Plaintiff/Dynasty Palace) application to dispose of the claim by way of Order 14A/ Order 33 Rules of the Court 2012 vide Enclosure 89. This application was opposed by the Defendants. This Court after considering parties contentions and hearing the application has dismissed Enclosure 89 with costs in the cause. [2] The Appellant however is dissatisfied and has appealed to the Court of Appeal against the decision which was delivered on 14.03.2025. The parties are referred to as they were in the High Court. Cause papers [3] The Plaintiff and Defendants (First Defendant – D1, Second Defendant – D2, Third Defendant – D3 and Forth to Thirteenth Defendant – D4 to D13) filed the following documents in the said Application:

Affidavit in Support affirmed by Ooi Bak Heng dated 2

(ii) Affidavit in Reply affirmed by Lim Mook San dated 29 Mac 2024 (Encl. 97);

(iii) Rebuttal Affidavit affirmed by Ooi Bak Heng dated 26 April 2024 (Encl. 99) Background facts (Undisputed facts) [4] This Court scrutinised the summary of facts that has been presented by parties as the background of this case. [5] D3 was the managing partner of D1’s (the firm) branch in Penang. One of the partners in the Penang Branch, D2, had prepared a Joint Venture Agreement between the Plaintiff and the landowners of Lot 1188 held under Hakmilik 452, Lot 1189 held under Hakmilik 454, all situated at Mukim 9, Teluk Kumbar, Daerah Barat Daya, Pulau Pinang (“the Lands”). The Joint Venture Agreement was dated 4.5.2011 and stamped on 5.5.2011 (“the original JVA”). [6] The Plaintiff alleged that they have deposited with D1 the consideration sum of RM1.8 million (“the stakeholder sum”) based on the original JVA to be held as stakeholder. The Plaintiff had been liaising with the 2nd Defendant throughout the transaction and the landowners were represented by Messrs. Rosnah & Partners. [7] It was agreed between parties that the condition precedent to the original JVA is that the landowners must make the necessary application to obtain Letters of Administration or Probate within nine (9) months from the date of the agreement. However, nothing had been done since the original JVA was signed. [8] In the 2nd Defendant’s Statutory Declaration affirmed on 23.11.2018 (“the said SD”) the 2nd Defendant admitted that he had paid out from the stakeholder sum: RM500,000.00 to the landowners, RM660,000.00 to Puan Rosnah (the partner from Messrs Rosnah & Partners, the land owners’ solicitors), and RM783,200.00 to the agents involved in the original JVA, Mr. Mahenthiran & Mr. Rosli. The admission made by the 2nd Defendant in the said SD is within the knowledge of the Plaintiff. [9] The present claim arises from the Plaintiff’s allegation that the 3rd Defendant, being the partner of 1st Defendant, together with the 1st Defendant D1 and the 4th to the 13th Defendants, are liable for the fraudulent act of the 2nd Defendant, have breached their fiduciary duty as the solicitors for the Plaintiff, and have breached their duty as stakeholders. [10] Prior to this Suit the landowners had initiated an action under Civil Suit No. PA-22NCVC-19-01/2017 (“Suit 2017”) against their solicitors, Messrs Rosnah & Partners, claiming, among other things, that their solicitors had breached their duty to the landowners and had been unjustly enriched in the transaction. The landowners requested that Messrs Rosnah & Partners provide accounts for the transactions involved in the JVA. [11] Subsequently, three of the land owners initiated another suit against the Plaintiff, the 1st, 2nd, the 3rd under Civil Suit No. PA-22NCVC-176- 11/2018 (“Suit 2018”), claiming, among other things, that the Defendants have been unjustly enriched in the transaction and had acted dishonestly, committed negligence, and professional misconduct. The landowners also alleged that the 1st Defendant had breached its stakeholder duties and is vicariously liable for the fraudulent acts committed by the 2nd and the 3rd Defendants. [12] They further alleged that since the said JVA is terminated, the 1/8 shares in Lot 1189 that have been transferred to the Plaintiff should be retransferred to the landowners. The 1st, 2nd and 3rd Defendants, successfully applied to strike out Suit 2018, and the landowner’s appeal against that decision was dismissed by the Court of Appeal on 24.6.2020. [13] The Plaintiff has stated in its Statement of Claim that it managed to strike out the claim made by the landowners, as the Court found that the JVA is still valid and that the Plaintiff is ready to proceed with the said JVA. [14] The landowners initiated another Civil Suit against the 1st and 3rd Defendants and all its partners, their former solicitors, Messrs Rosnah & Partners and the agents, Mr.Mahenthiran and Mr.Rosli, who were involved in the original JVA, under Civil Suit No. PA-22NCVC-199-09/2019 (“Suit 2019”). The landowners alleged that the Defendants had conspired to commit fraud, cheating, breach of trust, dishonesty, and unequitable conduct. [15] It is pertinent to note that 2nd Defendant had affirmed his Statutory Declarations admitting that he had prepared a Joint Venture Agreement in his personal capacity without the knowledge of the 3rd Defendant and all other partners of SRL. [16] The 2nd Defendant also affirmed that he had subsequently prepared the 2nd JVA without the 3rd Defendant and the other partners’ knowledge. He also admitted that he had released the stakeholder sum to the landowners, Messrs Rosnah & Partners and the agents. All these payments were made under the 2nd Defendant’s instructions and that he had misrepresented the 3rd Defendant on the nature of the payments that need to be made, allowing 3rd Defendant to sign the cheques releasing the stakeholder sum to the recipients. [17] D3 contends that all these actions by the 2nd Defendant was committed while both of them were partners with the 1st Defendant. The 2nd Defendant had taken the files relating to the JVA with him when he resigned from the firm on 01.08.2016. [18] By reason of the aforesaid, the Plaintiff is now filing an application for disposal of case on point of law under Order 14A of Rules of Court 2012. The questions to be determined [19] Based on the Notice of Application, the questions to be determined are as follows: -

Whether the Defendants are liable to refund to the Plaintiff the stakeholder sum of RM1.8 million (the ”the said stakeholder sum”) for breach of fiduciary duty and breach of trust in releasing the said stakeholder sum paid by the Plaintiff and held by the 1st Defendant as stakeholder pursuant to a Joint Venture Agreement (“JVA”) dated 4.5.2011 prepared by the 2nd Defendant and executed by the Plaintiff as the developer of the one part, prior to the condition precedent to the JVA as provided under Clause 6(1)(d) of the JVA has been satisfied and without the consent of the Plaintiff or any court order authorising the release of the said stakeholder sum by the 1st Defendant;

(ii) Whether the contents of the following documents constitute admission by the Defendants of their liability to the Plaintiff in respect of the refund of the stakeholder sum and thereby renders the Defence of the Defendant unsustainable:

Statutory Declaration sworn by the 2nd Defendant on 23.1.2018;

The police report lodged by the 3rd Defendant on 28.11.2018 on behalf of the 1st Defendant, inter alia, that the stakeholder sum has been paid out without the consent or instruction of the Plaintiff; the Letter of Indemnity dated 28.2.2019 given by the 3rd Defendant in favour of the 1st Defendant and the partners thereof; and, inter alia, the correspondence exchanged between the 1st , 4th to 13th Defendants and the 3rd Defendant after the letter of demand from the Plaintiff to the 1st Defendant; and

The Counter claim filed by the 1st , 4th to 13th Defendants against the 2nd and 3rd Defendants. Preliminary issue [20] There is a question that would like to be addressed regarding the issue of whether this Court's order can be appealed and the decision of this Court is final, is not an interlocutory and does amount to an appeal to the Court of Appeal. [21] It is a settled principle of law that only decisions of a final nature are appealable. This principle has been repeatedly stated by the Federal Court in KEMPADANG BERSATU SDN BHD v. PERKAYUAN OKS NO 2 SDN BHD [2019] 4 CLJ 131, held that: “[27] Section 3 is not a specific provision limiting appeals. Section 3 is the interpretation section of the CJA. It merely defines what a decision is, for the purpose of the CJA. [28] On the interpretation of the word “decision”, the relevant paragraph in s. 3 is divided into two parts. The first part identifies “decision” in the form of “judgment, sentence or order” of the court. It provides an extensional definition of the word decision by listing instances of the set of things included therein. In other words, the concept of decision is not explained but the objects that fall under this word are listed. [29] The second part of the paragraph qualifies that these forms of decision do not include “any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties”. It is noted that the second part was inserted in s. 3 by Act A1031 which came into effect on 31 July 1998. Based on the said provision, at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of s.

There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties. (Emphasis added) [22] Based on the facts of this case, the decision by this Court under Order 14A is not a final decision. The rights of the parties are not finally determined, because the parties have to proceed with trial and no longer get a summary judgment without a full hearing. The parties have the opportunity to present evidence through a full hearing based on the disputed issues. [23] In GOVERNMENT OF THE STATE OF SARAWAK & ANOR v CHONG CHIENG JEN [2016] MLJU 113, the Court held that: “[86] Thus, when the learned judge dismissed the appellants’ claim in its entirety after determining question (1) in favour of the respondent and questions (2), (3) and (4) in favour of the appellants, Her Ladyship had in fact finally determined the entire cause of the matter pursuant to Order 14A rule (2), exactly as intended by the respondent. Had question (1) been answered in favour of the appellants along with question (2), (3) and (4), final judgment would have been entered against the respondent. [87] To now allow the case to proceed to trial despite having been finally disposed of under Order 14A is to open the floodgates for such applications to be made piecemeal and by instalment. Technically, it is still open to the respondent to make another such application if we were to remit the case back to the High Court for trial. [88] Considering that a decision under Order 14A is a final decision in that it finally determines the rights of the parties and therefore appealable to this court and potentially to the Federal Court with leave, any further appeal upon further determination under Order 14A will further delay the final disposal of the case. We do not think we should set a dangerous precedent by allowing trial after a determination under Order 14A.” (Emphasis added) [24] In this issue, the Court finds that section 68 of the Court of Judicature Act 1964 (“CJA”) is relevant to refer to. As a direct consequence of the amendment, an appeal against the dismissal of any application for a summary judgment under of the ROC 2012 is no longer allowed. Section 68 of the CJA 1964 after the amendment in 2022 is reproduced for ease of reference:

No appeal shall be brought to the Court of Appeal in any of the following cases:

……

……

……

…….

where a High Court dismissed any application for a summary judgment;

…..

….. [25] In IDEAL PRINCIPLES SDN BHD V CENTRAL SPECTRUM (M) SDN BHD [2023] MLJU 2511, the Court held that: “[39] This Court has also been made to understand that the Plaintiff intends to argue that section 68(1)(d) only applies to dismissal of summary judgment applications made under Order 14. As this application is made pursuant to Order 14A, the Plaintiff will accordingly argue that the provision in section 68(1)(d) does not apply. [40] If the reasoning that section 68(1)(d) is only meant to apply to applications made under Order 14, then dismissal of applications for summary judgment under Order 14A, Order 43, Order 81 and Order 89 are all subject to appeal. [41] This Court is of the view that if indeed the intention of the Rules Committee is to limit the application of section 68(1)(d) to dismissals of any application for a summary judgment under Order 14, this would or should have been made clear in the said sub-section 68(1)(d). In view of the absence of the phrase “under Order 14” in the said sub-section 68(1)(d), summary judgment ought to be understood as to include all summary judgment applications under the various procedural rules of the Rules of Court 2012. [42] It is nevertheless granted that in certain circumstances, a determination of questions of law or construction of provisions in a statute or clauses in a contract or document pursuant to Order 14A of the Rules of Court 2012 may bring a matter to an end. In such a case the losing party ought not be prohibited from bringing an appeal to the Court of Appeal. The adoption of such an approach will correspond with the rationale behind the introduction of sub-section 68(1)(d), (e) and (f) of the Courts of Judicature Act 1964. [43] As for the present case, the dismissal of the Plaintiff’s Notice of Application for summary judgment under Order 14A does not result in the dismissal of the Plaintiff’s action. The dismissal of the Plaintiff’s Notice of Application for summary judgment under Order 14A does not result in judgment entered in favour of the Defendant. This Court is therefore of the view that the present case falls squarely within objective envisaged or intended by the introduction of the new paragraph (d) in sub-section 68(1) of the of the Courts of Judicature Act 1964. Henceforth, no appeal shall be brought to the Court of Appeal. However, that is the decision to be made by the Court of Appeal.” [26] This Court agrees with the decision of IDEAL PRINCIPLES SDN BHD (supra) and in this case, the opinion of this Court is correct, then this appeal can be struck out without looking at the full reasons of this Court. However, if the Court of Appeal holds the opposite opinion, the Court's reasoning in dismissing the application under Order 14A of the ROC 2012, now explained for the purpose of hearing the merits of this appeal. [27] The Court also wants to emphasise that in the case of KEMPADANG SATU SDN BHD (Supra), it is not stated whether the decision must be made before, during or after the trial. This Court is of the view that in the course of a trial includes all stages of the trial and what is more important is “whether it will dispose of the Plaintiff's rights in full or the final decision has been made”. If this decision is not included in the principle of the case KEMPADANG SATU SDN BHD (SUPRA), then this appeal should be dismissed without hearing the merits of this appeal. The Law / Provisions [28] In this judgment, the relevant provisions which will be discussed are as follows: A. Order 14A of the ROC 2012 1.Determination of questions of law or construction (0. l4A r. l)

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question.

The jurisdiction of the Court under this Order may be exercised by a Registrar.

Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules.

2.Manner in which applications under rule 1 may be made An application under rule 1 may be made by a notice of application or, notwithstanding Order 32, rule 1, may be made orally in the course of any interlocutory application to the Court.

B. Order 33 Rule 2 of the ROC 2012 ………

Time of trial of questions or issues The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

……..

……… C. Order 33 Rule 5 of the ROC 2012

Dismissal of action after decision of preliminary issue If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just. Relevant authorities [29] In determining the application of Order 14A of the ROC 2012, it has become an established law that the question raised if decided allows this action to be disposed of without the need for a full trial and the calling of witnesses. A Guide to the application of Order 14A of the ROC 2012 can be quoted from the case of ONG SIANG PHENG v MILLENNIUM MALL SDN BHD & ORS [2021] MLJU 1019 that lists as follows: “(1) O.14A is only applicable to determination of questions of law: O.14A r.1;

the question of law must be suitable for determination without the full trial of the action: O.14A r. 1(a);

such determination of question of law will finally determine the entire cause or matter or any claim or issue therein: O.14 A r.1(b);

the prerequisites in items (1) to (3) above are cumulative prior conditions to be fulfilled before this O.14A procedure can be invoked: Dato’ Sivanathan a/l Shanmugam case (Court of Appeal) (supra);

the word “may” at the beginning of O.14A r.1 gives the Court the discretion whether or not to invoke the O.14A procedure even if the three prerequisites are fulfilled;

Where there is a dispute by the parties as to the relevant facts, O.14A is not applicable: Thein Hong Teck case (Federal Court) (supra), Director of Forests, Sarawak & Anor v. Racha Urud & Ors and other appeals (Federal Court) (supra); and

O. 14A should not be used to determine questions which are based on hypothetical, ambiguous or fictitious facts: Thein Hong Teck case (Federal Court) (supra), Director of Forests, Sarawak & Anor v. Racha Urud & Ors and other appeals (Federal Court) (supra);

The question of law or construction to be determined by the court under O. 14A should be stated or formulated in clear, careful and precise terms, so that there should be no difficulty or obscurity: Director of Forests, Sarawak & Anor v. Racha Urud & Ors and other appeals (Federal Court) (supra); and

Where the issues of disputed fact are interwoven with legal issues raised, it will be undesirable for the court to split the legal and factual determination: Thein Hong Teck case (Federal Court), Director of Forests, Sarawak & Anor v. Racha Urud & Ors and other appeals (Federal Court). Plaintiff’s submissions [30] The Plaintiff's primary contention about the First Question and the Second Question can be summarised as follow:

Whether the Defendants are liable to refund to the Plaintiff the stakeholder sum of RM1.8 million (the” the said stakeholder sum”) for breach of fiduciary duty and breach of trust in releasing the said stakeholder sum paid by the Plaintiff and held by the 1st Defendant as stakeholder; and

(ii) Whether the contents of the following documents constitute admissions by the Defendants of their liability to the Plaintiff in respect of the refund of the stakeholder sums and thereby renders the Defence of the Defendant unsustainable:

(a)Statutory Declaration;

(b)The Police Report;

(c)The Letter of Indemnity dated 28.2.2019 given by the 3rd

(d)Correspondence exchanged between the Defendants and the 3rd Defendant; and

(e)The Counter claim filed by the 1st, 4th to 13th Defendants against the 2nd and 3rd Defendants. [31] These indicates that the Defendants have no defence and no issue to be tried. The First , Fourth to Thirteen Defendants’ Submissions [32] The claim made by the Plaintiff is founded on, inter alia, breach of duty of care and skill, cheating, fraud, breach of fiduciary duties, breach of trust, professional negligence and misapplication of the stakeholder sum paid to the 1st Defendant, 4th to 13th Defendants. [33] It is further submitted that the Plaintiff has the burden to prove the cause of action against each Defendant and that any findings of liability against one (1) Defendant cannot bind the other Defendant. These causes of action all encompasses and/or involve issues and questions of fact. [34] Whether or not the Defendants had breached their duty of care and skill is both a factual issue and legal issue and cannot be determined vide Affidavit evidence. [35] Whether or not the Defendants had cheated the Plaintiff is a question of fact and can only be determined vide oral evidence. The Plaintiff must factually prove that the Defendants had knowledge of the wrongdoings of the 2nd Defendant (which is wholly denied). [36] Whether or not the Defendants had committed fraud against the Plaintiff is a question of fact and can only be determined vide oral evidence. The Plaintiff must prove how and when the Defendants had individually committed fraud against the Plaintiff and what they did to commit such alleged fraud against the Plaintiff. [37] Whether or not the Defendants had committed breach of fiduciary duty and breach of trust against the Plaintiff are both factual and legal issues. The Plaintiff must prove how the Defendants had committed such breaches against the Plaintiff. [38] Whether or not the Defendants had committed professional negligence is a question of fact which can only be decided vide oral evidence. The Plaintiff must prove that the Defendants had breached their individual duty of care. [39] The acts carried out by the 2nd Defendant as stated in his Statutory Declaration were done on his own accord without the knowledge and/or authority of the Defendants. These acts were also not in the ordinary course of business of the firm. This raises a dispute of both law and fact and goes towards the knowledge of the Defendants. [40] The Defendants are not liable for the acts committed by the 2nd Defendant as he had deliberately concealed his acts from the Defendants. At all material time it was solely controlled by the 2nd and 3rd Defendants. This raises a dispute of fact. [41] As the Plaintiff, inter alia, is conducting its case in instalments and the allegations and purported causes of action and reliefs sought by the Plaintiff could have and/or ought to have been brought against the Defendants in the 2018 Suit, this would amount to duplicity and/or multiplicity of proceedings and issue estoppel. This raises a dispute of fact and law, of which this Honourable Court has already decided that is not suitable to be determined vide Affidavit evidence. [42] The Plaintiff is not entitled to a refund of the sum of RM1,800,000.00 as the Plaintiff had full knowledge of the payments made to the landowners and had relied on such payments in the 2018 Suit. The Plaintiff is not entitled to a refund of the sum of RM1,800,000.00 as the JVA to date remains in full force and effect. The JVA has never been terminated. This raises a dispute of fact and law. [43] It is not disputed that the conditions precedent has not been fulfilled and that the JVA has not been terminated. In fact, the Plaintiff in the 2018 Suit has taken the position that it is still ready, willing and able to proceed with the terms of the JVA. It is therefore submitted that the Plaintiff is not entitled to claim for a refund of the unsustainable. Third Defendant’s Submissions [44] The doctrine of admission is explained in the case of ONG GIM HUAT V TOH SUAN LIN AMY [1992] 2 MLJ 610. Furthermore, in light of Section 23 of the Evidence Act 1950: “ In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. if an admission is made subject to a condition, then it must be accepted subject to that condition.” [45] Based on the above, if an admission is made subject to a condition, then it must be accepted subject to that condition. The 2nd Defendant, through the Statutory Declaration made on 23.11.2018 has admitted of his own accord and voluntarily/without coercion that he acted independently and without the 3rd ’s knowledge, including that of the other Defendants, in the handling of the JVA and matters related thereto. Therefore, this cannot be considered an admission by the 3rd Defendant, as the 3rd Defendant did not prepare this Statutory Declaration in the first place. [46] Moreover, the contents of the Statutory Declaration highlights that the 2nd Defendant is solely responsible for his actions, and the 3rd Defendant was neither aware of nor informed about the situation. [47] As emphasized in the 3rd ’s Affidavit In Reply, the 3rd Defendant has lodged a police report to protect the interests of the First Defendant (the firm), including himself, as he has also fallen victim to the 2nd Defendant’s actions. This police report does not constitute an admission as alleged by the Plaintiff. [48] Pertaining to the Letter of Indemnity, the 3rd Defendant submits that it has been drafted with two conditions: -

The 1st Defendant (The firm) shall contest all claims and will not withdraw any proceedings and/or enter into any settlement, scheme of arrangement or admission without the 3rd s Defendant consent; and

(ii) The 3rd Defendant agrees to indemnify the firm and all affected partners against any and all costs, losses, or damages which they may suffer as a result of Suit 2018. [49] In furtherance to above, the specific indemnity section pertains to the 2018 lawsuit concerning the trust money issue, which has now been resolved and is no longer applicable since the 1st Defendant did not suffer any losses as a result of the 2018 lawsuit. As such, the Police Report and the Letter of Indemnity should not be considered an admission of liability by the Defendants to the Plaintiff. [50] The Counterclaim filed by the 1st, 4th to 13th Defendants against the 2nd and 3rd Defendants should not be considered an admission for the following reasons:

The 3rd Defendant has been defending the counterclaim;

(ii) The counterclaim proceeding is still at pleading stage;

(iii) The trial has not yet commenced; and

(iv) No decisions have been made on the counterclaim proceeding. [51] In the circumstances, it is premature to allege that the counterclaim filed against the 3rd Defendant constitutes an admission of liability by the 3rd Defendant. Analysis and findings Whether there exists question and/or dispute of facts? [52] In addition to stating that there were no disputed facts and that the 2nd Defendant's confession was binding on the Defendants, the Plaintiff further argued that Sections 7, 11, 12, 13, and 14 of the Partnership Act 1961 applied because the 2nd Defendant's confession was binding on the Defendants. [53] The reason this Court disagrees with this argument is that the other Defendants, particularly the 1st Defendant, did not consent to this admission. The rationale for this is that, in line with the concept of separate legal entities, the firm's and the employee's or agent's responsibilities are different from one another. [54] In the case of SOUTHERN EMPIRE DEVELOPMENT SDN BHD V TETUAN SHAHINUDDIN & RANJIT & ORS [2008] MLJU 60, held that: “Premised on the proposition as advanced by the 1st defendant, that is, a suit against a partnership is in reality a suit against the current partners, the learned counsel then proceeds to refer to s 11 and s 19(1) of the Partnership Act 1961. These provisions read:

Liability of partners. Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied but subject to the prior payment of his separate debts.

Liability of incoming and outgoing partners.

(1)A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner.

(2)A partner who retires from a firm does not thereby cease to be liable for partnership debts or obligations incurred before his retirement. The 1st defendant then proceeds to argue that based on the above provisions, in particular, subsection (1) of s 19, the present partners cannot be held liable for the alleged wrongdoing of the previous partners; and because the present partners cannot be held liable, therefore, the firm also cannot be liable because the liability of the partnership and the liability of the partners are synonymous. With respect, I am unable to accept the above argument. In my judgment, the liability of the firm/partnership is distinct and different from the liability of the firm’s partners. It is true that a partnership, being not a human being but merely a artificial legal entity, on its own can do nothing. Thus, on its own it can do no wrong. The partnership acts through its human agency – its partners. Every act or omissions of the partners directly pertaining to the partnership is in law deemed to be an act or an omission of the partnership. But be that as it may, in relation to partnerships, the law recognizes two types of liability:

the liability of the partners; and

the liability of the partnership. [55] This dispute regarding the responsibility is stated in the affidavits of both parties. There are contradictions in the affidavits of both parties regarding the admissions of liability. Clearly this is a dispute as to facts. In contrast to the current case, the Court found that the precedent in the case of TOH FONG CHENG & ORS v PANG CHOON KIAT & ORS. [2020] MLJU 1476, which the Plaintiff referred to, was not relevant because the decision in that case was based on a full trial rather than Order 14A of the ROC 2012. In TOH FONG CHENG (SUPRA) the Court held at paragraph (5) that: “… the High Court after examining the evidences adduced and hearing the witnesses decided that the firm was liable under Section 12 Partnership Act 1961”. [56] In THEIN HONG TECK & 4 ORS V. MOHD AFRIZAN AND ANOTHER APPEAL [2012] 1 CLJ 49; [2012] 2 MLJ 299, the Federal Court held, “[47] It is trite law that O. 14A of the Rules of the High Court 1980 may only be resorted to if there is no dispute by the parties as to the relevant facts, or that the court, upon scrutinising the pleadings concludes that the material facts are not in dispute (see Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741; [2008] 2 MLJ 812). Where the issues of fact are interwoven with legal issues raised, it will be undesirable for the court to split the legal and factual determination for to do so would in effect be to give rulings in vacuo or on a hypothetical ruling which the court will not do (see State of Bank of India v. Mariani Marketing 1 March 1991, CA Transcript No 91/0304) (emphasis added) [57] Based on the affidavits, it is obvious that there are facts and laws that cannot be separated for this Court to evaluate legal matters exclusively. This is because the factual dispute concerns the entire claim of the Plaintiff and also the defence of the Defendants. [58] This Court agrees with the arguments and reference of the case that the Defendants have made. In the case of SHONG MOR SDN BHD V CAYMAN DEVELOPMENT (KEDAH) SDN BHD & ORS [2009] 9 MLJ 175, the Court stated that: “There is, therefore, a dispute on the issue of trespass in the said property. This dispute was certainly a question of fact. If question of fact is involved, it is inappropriate or unsuitable to have recourse to O 14A. In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812; [2008] 1 AMR 105, Zainun Ali JCA (the majority decision) had cited the English case of Mohamed v Alaga & Co (a firm) [1998] 2 All ER 720 where Lightman J succinctly said the following words: … Under O 14A, the court can decide any question of law at any stage of the proceedings if that question is suitable for determination without a full trial of the action and such determination will finally determine the entire action or any claim or issue therein. Order 14A is accordingly not apt for determining a question which involves a question of fact. [59] Without considering evidence from witnesses, there is no distinct way for this Court to assess responsibility. Since the Defendants was challenging it, at this point, an affidavit alone is insufficient. Given the facts and the admissions made by the 2nd Defendant, the Defendants successfully demonstrated that they ought not to be deemed vicariously liable. Fraud is a triable issue and cannot be decided based on affidavits. [60] This is obviously a matter of fact, as the First Defendant in the pleadings also argued that the JVA was still valid, which precluded this claim. There was also disagreement over how to interpret Clauses 6, 8, and 12 of the JVA. It must be established during the trials. This is a question of fact that cannot be decided by a summary judgment under Order 14A of the ROC 2012. [61] The admission of fraud by the 2nd Defendant cannot automatically be used against the Defendants. This is because it is a fact that is not challenged by the parties. In particular, the burden of proof still lies with the Plaintiff. [62] The Counterclaim filed by the 1st , 4th to 13th Defendants against the 2nd and the 3rd Defendants should not be considered an admission as the claim against the 2nd and the 3rd Defendants is the right of the 1st , 4th to 13th Defendants under the law and it cannot be prevented because they also need to prove their claim against the 2nd and the 3rd Defendants. [63] In exercising its discretion to consider this application by the Plaintiff, the Court must decide whether it is just to do so under Order 14/Order 33 of the ROC 2012, as well as whether it would cause injustice to the Defendants. This Court made its decision solely on the basis of the affidavits and arguments presented to it, without considering any other factors. It would not be in the interest of justice to ignore the true issue of controversy. [64] It is trite law as well that the appellate court will not ordinarily interfere with the exercise of discretion of the trial court in relation to procedural and/or interlocutory matters (see ECM Libra Investment Bank Bhd v. Foo Ai Meng & Ors [2013] 1 LNS 99; [2013] 3 MLJ 35). In dismissing the appeal with costs, Lord Guest in RATNAM V CUMARASAMY & ANOR [1964] 1 LNS 237; [1965] 1 MLJ 228 amongst others held that: “The principles upon which a court will act in reviewing the discretion exercised by a lower court are well settled. There is a presumption that the judge has rightly exercised his discretion (Charles Osenton & Co v. Johnston [1942] AC 130 per Lord Wright at 148). The court will not interfere unless it is clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice (Evans v. Bartlam [1937] AC 473. (emphasis added)” [65] In ASIA PACIFIC HIGHER LEARNING SDN BHD V MAJLIS PERUBATAN MALAYSIA & ANOR [2020] 3 CLJ 153, His Lordship Azahar Mohamed CJ (Malaya) in concurring with the majority decision of the Federal Court in ASIA PACIFIC HIGHER LEARNING SDN BHD (Supra) referred to the Federal Court’s decision KEMPADANG SATU SDN BHD, the Court held amongst others that: “The present position in the law holds that an appeal does not lie against a decision in an amendment application made in the course of a trial and, further, such a decision does not finally dispose of the rights of the parties...” [66] In BINWU CAPTIAL SDN BHD V GRANTS VENTURE SDN BHD [2023] MLJU 457, the Court held that: “[23] Based on these reasons, this case is not suitable to proceed with Order 14A reads together with Order 33 Rule 2 of the ROC 2012 because there are questions of fact and law that require further arguments. In THEIN HONG TECK & ORS v MOHD AFRIZAN BIN HUSAIN & ANOR APPEAL [2012] 1 CLJ 49, the Federal Court held: “[5] It is trite law that 0. 14A RHC may only be resorted to if there is no dispute by the parties as to the relevant facts, or that the court, upon scrutinising the pleadings concludes that the material facts are not in dispute (Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd; refd). Where the issues of facts are interwoven with legal issues raised, it will be undesirable for the court to split the legal and factual determination for to do so, would in effect be to give rulings in vacuo or on a hypothetical ruling, which the court will not do.” [67] In TAN KHENG KEAT & ORS V SHIFTY TECHNOLOGY SDN BHD [2023] MLJU 1766, the court held that: “[48] The principles applied in the application of Order 33 ROC 2012 have been explained in the case of Newacres Sdn Bhd v. Sri Alam Sdn Bhd [1991] 3 CLJ 2781; [1991] 3 MLJ 474 (SC) where then Supreme Court vigorously applied the principle that was laid down in the case of Everett v. Ribbands & Anor [1952] 2 QB 198 and said (see p 476 of the judgment of Jemuri Serjan CJ (Borneo)): “We would interpolate to say that O. 33 r. 2 is suitable if there is a point of law which, if decided in one way, is going to be decisive of litigation and the advantage should be taken of these facilities.” Additional issue: Order 18 rule 19 of the ROC 2012 vs Order 14A/ Order 33 of the ROC 2012 [68] The Defendants filed an application under Order 18 rule 19 of the ROC 2012 prior to this application under Order 14A/Order 33 Rule 2 of the ROC 2012. The Court's first consideration was whether this application is the Defendants' second chance following their failure under Order 18 rule 19 of the ROC 2012. [69] The 1st, 4th to 13th Defendants argue that the Plaintiff in its own Affidavits filed during the Striking Out Application had taken the position that there were triable issues and that this case cannot be disposed of summarily. On that basis, the Plaintiff contested the Striking Out Application and this Court found that there were triable issues. Being a legal argument, this essentially means that this legal issue can only be determined together with factual issues only after full trial. [70] It is further submitted by the 1st, 3rd , 4th to 13th Defendants in making this Order 14A Application, the Plaintiff heavily relies on the contents of the 2nd Defendant during the Striking Out Application, the Plaintiff averred to the necessity of having the 2nd Defendant attend as a witness to testify on the contents of the Statutory Declaration. [71] The 1st , 4th to 13th Defendants further submit, by virtue of the above grounds, in applying the case of WILLIAM SINGAM A/L RAJA SINGAM V MEERIAM ROSALINE A/P EDWARD PAUL & ORS [2007] MLJU 845 and particularly since this Court had already dismissed the Striking Out Application on 16.12.2022, this Court has already decided that this case has triable issues, therefore it cannot and/or ought not to be determined summarily vide Order 14A and/or Order 33 Rules of Court 2012. [72] For this issue, although this Court has decided that this case has triable issues (and also the issue of res judicata), this Court is of the opinion that this does not prevent this Court from deciding those issues again in this Application. This Court determined that the case of WILLIAM SINGAM A/L RAJA SINGAM’s (SUPRA) facts did not seem suitable to follow. [73] It is also important to note that the Plaintiff's O 14A / Order 33 of the ROC 2012 application in Enclosure 89 does not limit the Court's ability to dismiss the Plaintiff's claim in this case if the facts, as they are presented here, so demand. Addressing this:

the ROC 2012's O 14A r 1(5) clearly states: “Determination of questions of law or construction (O. 14A, r. 1)

The court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the court that:

(a)such question is suitable for determination without the full trial of the action; and

(b)such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the court may dismiss the cause or matter or make such order or judgment as it thinks just.

The court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question.

The jurisdiction of the court under this Order may be exercised by a Registrar.

Nothing in this Order shall limit the powers of the court under Order 18, rule 19 or any other provisions of these rules.”

(ii) the ROC 2012's O 33 r (2) clearly provides as follows: “Mode of Trial (O.33 r.1) …………….. Time of trial of questions or issues (O.33 r.2) “The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. …………” [74] In the case of AFFIN BANK BHD V DINESH KANAVAJI A/L KANAWAGI [2022] 7 MLJ 404, the court held that: “[50] Whilst it is common for a party wanting to strike out a pleading to make an application under an O 18 r 19(1) ROC, however, here the plaintiff decided to file an application under O 14A ROC instead. for the counterclaim to be determined by this court. [51] Arguably an O 14A ROC application is less onerous than an O 18 r 19(1) ROC application and can even be considered a form of a ‘surgical strike’ application as it is more ‘precise’ in nature. This is because in an O 14A ROC application the applicant would pose specific questions for the court to determine or answer. [52] The main common feature of an O 18 r 19(1) ROC application and O 14 ROC application is that there must not be a material dispute as to facts. [53] On the other hand, one of the one major differences between an O 18 r 19(1) ROC application and O 14A ROC application is in the former the successful applicant will get the matter or pleading struck out while the later could lead to a judgment being entered or the matter dismissed, as the case may be. [75] The Court of Appeal in LIM THIAN HUAT & 1 LAGI V. MBF HOLDINGS BERHAD & 1 LAGI [2018] 1 LNS 678, held that: “[20] On the facts, we were of the view that the defendants’ application under O. 33 r. 2 of the Rules ought to have been allowed by the learned judge. What is apparent is that these applications by the defendants satisfied the central test in Petroliam Nasional (supra), namely that there would be a “substantial saving of time and expenditure” and for that reason the application ought to be allowed. [21] In the circumstances and having regard to the position of the law on the subject, we were constrained to hold that the learned judge was wrong in holding that the defendants’ applications under O. 33 r. 2 of the Rules were barred by res judicata, on the ground that their previous applications under O. 14A had been determined by this Court.” (emphasis added) (see also TAN SAW ENG & ORS V ONG LEE HWA (SEBAGAI WAKIL DIRI KEPADA HARTA PUSAKA TAN EOW SENG, SI MATI DAN TAN SAW HEOH, SI MATI) & ORS [2023] MLJU 967) [76] Order 14A of the ROC 2012 makes it apparent that this Court is "not blocked or chained" from hearing and judging on any issue that has already been brought before under Order 18 rule19 ROC 2012. Conclusion [77] This Court will interpret the Order 14A of the ROC 2012 in accordance with its true meaning i.e. “nothing in this Order shall limit the powers of the Court under Order 18 rule 19 of the ROC 2012 or any other provisions of these rules” rather than the views of the parties. In the particular case of AURA INDAH JAYA SDN BHD V OCBC BANK (M) BHD [2021] 10 MLJ 21, this Court quotes the following decisions: “With great respect to the plaintiff’s counsel, this court cannot apply Humpty Dumpty’s logic when he told Alice: ‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’ – Humpty Dumpty/Through the Looking Glass by Lewis Carroll” [78] The questions for decision under Order 14A/Order 33 of the ROC 2012 application could not have been brought up under Order 18 rule 19 of the ROC 2012 because this Court is unable to reach the finding which is sought under O14A of the ROC 2012 here. Therefore, neither res judicata nor rulings dated 16.12.2022, bind or prohibit the Plaintiff's application in Enclosure 89. Pronouncement [79] Given the numerous declarations and reliefs sought by the Plaintiff, this Court concurs with the Learned Defendants for the Defendants that this case cannot be reduced to say that Order 14A/Order 33 of the ROC 2012 application filed by the Learned Counsel for the Plaintiff can settle all disputes and bring the case to a complete and final conclusion. This is especially significant given the overlapping issues with regard to the rights of the payments in controversy and the ongoing fraud, cheating, breach of trust, dishonesty and unequitable conduct alleged. Consequently, the disputes cannot be answered on the basis of preliminary issues or principles of law. [80] In light of the rationale given as well as the guiding principles, this Court determines that Enclosure 89 should be dismissed with costs in the cause. .…………sgd………………. AZIZAN MD. ARSHAD Judge High Court of Malaya at Pulau Pinang Dated: 07.04. 2025 Counsel for the Plaintiff: Julinder Sarjit Daliwal Tetuan Aznil Naziah Juli & Praba Peguambela dan Peguamcara 51-8-D2 Menara BHL Jalan Sultan Ahmad Shah 10050 Penang Counsel for the 1st, 4th - 13th Defendants Toh Xin Yi, Nik Aimi Nabilah Binti Nik Rasli Messrs Shahrizat Rashid & Lee Ground & First Floor, Wism Prisma 17, Jalan Sri Semantan Satu Damansara Heights 50490 Kuala Lumpur Counsel for the 2nd Defendant Saravanan A/LKM Veerappan Messrs Saravanan Veerappan & Co. Advocates & Solicitor No.27, Jalan TK 2/3, Taman Kinrara 47180 Puchong, Selangor Counsel for the 3rd Defendant Dato’ Mureli Navaratnam, Loh Jia Chun Messrs Mureli Navaratnam 23 Bishop Street 10200 Georgetown Penang Legislations referred to:

Order 14A/ Order 33 Rules of the Court 2012 2. Section 68 of the CJA 1964 after the amendment in 2022 3. Section 23 of the Evidence Act 1950 4. Order 18 rule19 ROC 2012 Cases referred to:

KEMPADANG BERSATU SDN BHD v. PERKAYUAN OKS NO 2 SDN BHD [2019] 4 CLJ 131

GOVERNMENT OF THE STATE OF SARAWAK & ANOR v CHONG CHIENG JEN [2016] MLJU 11

IDEAL PRINCIPLES SDN BHD V CENTRAL SPECTRUM (M) SDN BHD [2023] MLJU 2511

ONG SIANG PHENG v MILLENNIUM MALL SDN BHD & ORS [2021] MLJU 1019

ONG GIM HUAT V TOH SUAN LIN AMY [1992] 2 MLJ 610

SOUTHERN EMPIRE DEVELOPMENT SDN BHD V TETUAN SHAHINUDDIN & RANJIT & ORS [2008] MLJU 60

TOH FONG CHENG & ORS v PANG CHOON KIAT & ORS. [2020]

THEIN HONG TECK & 4 ORS V. MOHD AFRIZAN AND ANOTHER APPEAL [2012] 1 CLJ 49; [2012] 2 MLJ 299

SHONG MOR SDN BHD V CAYMAN DEVELOPMENT (KEDAH) SDN BHD & ORS [2009] 9 MLJ 175

ECM Libra Investment Bank Bhd v. Foo Ai Meng & Ors [2013] 1 LNS 99; [2013] 3 MLJ 35

RATNAM V CUMARASAMY & ANOR [1964] 1 LNS 237; [1965] 1

ASIA PACIFIC HIGHER LEARNING SDN BHD V MAJLIS PERUBATAN MALAYSIA & ANOR [2020] 3 CLJ 153

BINWU CAPTIAL SDN BHD V GRANTS VENTURE SDN BHD [2023] MLJU 457

TAN KHENG KEAT & ORS V SHIFTY TECHNOLOGY SDN BHD [2023] MLJU 1766

WILLIAM SINGAM A/L RAJA SINGAM V MEERIAM ROSALINE A/P EDWARD PAUL & ORS [2007] MLJU 845

AFFIN BANK BHD V DINESH KANAVAJI A/L KANAWAGI [2022]

LIM THIAN HUAT & 1 LAGI V. MBF HOLDINGS BERHAD & 1 LAGI [2018] 1 LNS 678

TAN SAW ENG & ORS V ONG LEE HWA (SEBAGAI WAKIL DIRI KEPADA HARTA PUSAKA TAN EOW SENG, SI MATI DAN TAN SAW HEOH, SI MATI) & ORS [2023] MLJU 967

AURA INDAH JAYA SDN BHD V OCBC BANK (M) BHD [2021]