Gobinas Enterprise and Transportation Adn Bhd v See Yong Hin (BA-22NCvC-222-05/2019)

LEE AH PO @ LEE SIEW HWA .. DEFENDANTS JUDGEMENT [1] The following is the Court’s decision and the end of a full trial. In total there were three (3) witnesses called by the Plaintiff. The 05/01/2024 12:04:35 BA-22NCvC-222-05/2019 Kand. 75 Defendants on the other hand elected to put forward a submission of no case to answer. [2] Having reviewed the pleadings of all parties, the evidence adduced at the trial both oral and documentary, and upon reviewing the submissions of counsel, this Court had on 10.10.2023 allowed the Plaintiff’s claim. [3] The Defendants have since lodged an appeal against the above decision by way of a Notice of Appeal dated 07.11.2023 to the Court of Appeal. The following are my grounds of judgment. Summary of the Plaintiff’s case [4] On 28.09.2016, the Plaintiff vide Alor Setar High Court Civil Suit No: 22NCVC-30-05/2016 obtained judgment against HCS Construction, wherein the Court inter alia ordered as follows: -

HCS Construction’s claim against the Plaintiff was dismissed with a cost of RM 3,000.00;

HSC Construction was ordered to pay the Plaintiff a sum of RM 170,196.44 with interest at 5% interest per annum until full and final settlement; and

HSC Construction was ordered to pay a sum of RM 3,000.00 as costs to the Plaintiff. [5] Dissatisfied with the outcome of the above suit, HCS Construction on 24.10.2016 duly filed their Notice of Appeal to the Court of Appeal: Civil Appeal No: K-02(NCVC)(W)-2021- 11/2016. The said appeal was scheduled for hearing on 20.04.2017. [6] On 19.04.2017, which was the day before the hearing at the Court of Appeal, HCS Construction through their solicitors forwarded to the Plaintiff, the Notice of Withdrawal of Appeal. For reasons only known to HCS Construction, the said Notice was not filed in the Court. Regardless, the appeal was dismissed with costs due to HCS Construction’s representatives and / or their counsel’s failure to appear in Court on 20.04.2017. [7] On 01.06.2017, the Plaintiff initiated winding up proceedings against HCS Construction via Case No: KA-28NCC-27-09/2017 at the Alor Setar High Court. Neither HCS Construction (‘the Company”) nor their solicitors appeared at the hearing on 09.01.2018. This led to the Company being wound up on the same day. [8] After the Company has wound up, the Kedah branch of the Insolvency Department informed the Plaintiff that the remaining balance in the Company’s estate as of 15.04.2019 is RM 3,000.00. This comprised of the Plaintiff’s petitioner’s deposit and RM 36.20 being the Company’s bank balance. [9] In the course of time, the Plaintiff then discovered that the directors of the Company, namely D1, D2 and D3 had taken the following action:

set off and/or contra trade receivables in the sum of RM 1,825,872.00 (see the Company’s Report and Financial Statement dated 31.03.2017);

paid a sum of RM 416,496.00 to D1, D2 and D3 as overdue salary for directors; and

the balance trade receivable sum amounting RM 1,173,691.00 nil as due from company in which the directors have substantial financial interest. [10] During the same period of time, the Plaintiff also discovered a drastic change to the composition of the directors of the Company. The Plaintiff alleges that D1, D2 and D3 with the help of the D4 and D5 had done so in order to avoid and / or escape from paying the judgment sum to the Plaintiff. [11] In this regard, D1, D2 and D3 made amendments to the Company’s “Memorandum and Article of Association” by changing minimum number of directors from two to one. They then appointed D5, an 81 years old unwell lady as sole director to HCS Construction and resigned as directors. It should be noted that this is a family company wherein D1 is the father, D2 is the mother, D3 is the son and D5 is the grandmother of the said family. Note: On 2-5-2017, D5 was made director. On the same day, all shares owned by D1, D2 and D3 in the Company were also transferred (see page 15 and 37 of Enc. 29). [12] Premised on the provisions of Section 540(1) of the Companies Act 2016, the Plaintiffs filed this present suit against the Defendants, alleging among others that the actions of D1, D2 and D3 action during their tenure as directors of the Company tantamount to dishonest conduct which was primarily motivated to dishonour the judgment obtained by the Plaintiff in the Alor Setar High Court. The Defendant’s case [13] At the forefront, the Defendant’s defence to the Plaintiff’s claim is premised on the following facts:

the Company did not know that the Notice of Withdrawal of the Appeal was not filed by their solicitors;

the Company was wound up on 09.01.2018 due to its inability to pay its debts pursuant to Section 465(1)(e) of the Companies Act 2016;

D4 and D5 only realized the enforcement proceedings against the Company upon receiving the Winding Up

the Defendants denied the Plaintiff’s allegations as they did not transfer monies and/or assets of the Company to themselves. The monies were paid out as repayment of loans given by them as directors of the Company and other companies related to HCS Construction for cost and expenses of carrying the Companies construction projects;

the Order dated 28.09.2016 was against the Company and not against the directors in their personal capacity;

Any changes in the composition of the Company had nothing to do with the enforcement of the Court Order dated 28.09.2016;

In so far as D4 is concerned, he had prepared and filed copies of the resolutions and documents at the SSM within the time frame permitted. There was no fraud or deception by way of back dating of documents as alleged; and

The Plaintiffs claim for payment on the judgment amounted to seeking undue preference and contrary to the provisions of Section 528 of the Companies Act 2016. Issues To Be Tried [14] For purposes of the trial, there were a number of issues formulated by both parties (see Enclosure 21). However, at the end of the trial, these issues we reduced to the following:

Whether D1, D2, D3 and D5 are personally liable for the debts owed by HCS Construction to the Plaintiff pursuant to Section 540(1) of the Companies Act 2016;

(ii) Whether all transactions of payment of debt to D1, D2 and D3 or any other third party are undue preference under Section 528 of the Companies Act 2016; and

(iii) Whether D4 breached the duty of care and is against public policy as a company secretary. Summary of the Defendant’s submission [15] From the evidence adduced by the Plaintiff during the trial, the Defendants elected to submit that there no case to answer based on the following:

The Plaintiff had failed to proof or identify any transactions carried out for the purpose to defraud the Plaintiff and with fraudulent purpose;

(ii) The Plaintiff had misconstrued the Cash Flow Statement in the Company’s Report and Financial Statement as there was no actual payment in the sum of RM 416,496.00 as re-payment towards loans given by the D1, D2 and/or D3 to the Company;

(iii) As far the allegation that the Company’s Assets were written off, the assets were purchased in 2001 for the sum of RM 1,700.00 and had a netbook value of only RM 3.00;

(iv) the change of directors or shareholders of the Company will not affect or cause any loss to the Plaintiff nor in the winding up of the Company as the debts were incurred by the Company and not the directors nor shareholders personally;

what the Plaintiff is actually doing is to invite this Court to infer that the steps taken by the Company in changing its directors and shareholders amounted to a scheme to avoid paying the Plaintiff and to defraud the Plaintiff (reliance placed on the decision of the Court of Appeal in Formis Resources Bhd & Ors v Risk Management and Safety Systems Pty Ltd [2016] 9 CLJ 169).The Plaintiffs herein had failed to actual fraud, that is dishonesty of some sort ;

(vi) there is no proof that the Defendants backdated the Company documents i.e. resolution on the change of composition of directors, resignation of D1, D2 and D3, and the appointment of D5 as director for purposes of evading payment to the Plaintiff;

(vi) the Plaintiff has no priority of payment of the Company debt as it is trite law that an unsecured judgment creditor has no priority over other unsecure creditors (see Mohan Chatram Mt Ramchandani v Ketua Pengarah Insolvensi Wilayah Persekutuan Kuala Lumpur [2015] MLJU 2362);

(vii) the Plaintiff to did not plead the remedy available under Section 528 of the Companies Act 2016, for this Court to void any transaction made preceding a period of six (6) months prior to being wound up. For this purpose, the Plaintiff did not specify any payment made by the Company which it takes the view is void; and

(viii) in so far as D4 is concerned, he owed no duty of care to the Plaintiff and was not obligated to obey the Plaintiff’s instructions. Here, D4 was obligated to only obey the instructions of the Company’s Board of Directors namely: D1, D2 and D3. The Plaintiff had also failed to proof which law, regulations or public policy which D4 had breached. [16] In addition to the above, the Defendants contended that there was a genuine loan from Sungguh Kemajuan Sdn Bhd to the Company and that the Company was still indebted to the former despite making payment in the sum of RM 330,000.00 throughout 2016 and 2017; Principles of Law Applicable [17] In determining the issues in the present case, I am of the view that there are two (2) main legal principles which have to be considered. They are as follows:

the provisions of Section 540 (1) Companies Act 2016 (previously section 304(1) Companies Act 1965); and

(ii) the Defendants election of “No case to answer”. A. Section 540(1) Companies Act 2016 [18] The above provision states: “If in the course of the winding up of a company or in any proceedings against a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the Court on the application of the liquidator or any creditor or contributory of the company, may, if it thinks proper so to do declare that any person who was knowingly a party to the carrying on of the business in that manner shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court directs.” [19] Under Section 540 (1) above, the doctrine that a company is a separate legal entity as propounded in Solomon v A.Solomon [1897] HL, is negated allowing the Court to pierce the corporate veil of a particular company when it appears that the business of the company has been carried on with intent to defraud its creditors. Such was explained by Mohammed Ariff Yusof JCA in Lama Tile (Timur) Sdn Bhd v Lim Meng Kwang & Anor [2015] 3 CLJ 753: “Section 304 is a specific statutory provision which allows the corporate veil to be lifted in the limited situations specified. Earlier in this judgment we have underlined that it is applicable in a situation where in the course of proceedings against a company, it appears that the business of the company has been carried on with intent to defraud creditors, a creditor can make an application to court to request that the court declare that any person who was knowingly a party to such carrying on of the business of the company, to be personally responsible.” [20] For purposes of proving a claim under Section 540 (1), a plaintiff has to prove the following:

The plaintiff has the necessary locus standi to bring the action. A creditor who discovers evidence of fraudulent trading in the course of winding up of the company concerned can commence such action.;

(ii) The businesses of the company have been carried on with intent to defraud a creditor/s or the plaintiff concerned (as the case may be) or for any fraudulent purpose; and

(iii) The defendants are the correct parties to be sued for as a person who was knowingly a party to the carrying on of the business. See: a. Lama Tile (Timur) Sdn Bhd (supra); and b. Chin Chee Keong v Toling Corporation (M) Sdn Bhd [2016] 3 MLJ 479. [21] With reference to the term “carried on with intent to defraud”, the following cases illustrate as to the circumstances in which the Courts found that there was an intention to defraud:

Chin Chee Keong (supra) “[48] The Company was “not in the position to pay its creditors when the debts would fall due” and this is evidenced by the Company’s non-payment for the purchases or even the judgment debt. It is also true that the Company’s audited reports for the years 2002, 2003 and 2004 show that the Company “was experiencing cash flow problem and was in financial difficulty” at the material time. The balance sheets show that the Company had no reasonable prospect of paying its debts in 2003 and 2004. [49] More important and of relevance is the fact that the defendants did not challenge or explain that the Company was not in debt and that it was able to pay its creditors, especially the plaintiff. [50] Despite knowing that it was not able to pay for its purchases, the Company, under the directions of the defendants proceeded to place “unusual large orders of raw material from the plaintiff during the material period”.

(ii) Aneka Melor Sdn Bhd v Seri Sabco (M) Sdn Bhd [2006] 2 CLJ 563: “This was not a case where the company was already in financial difficulties, and in debts, but continued to invite the plaintiff to undertake the contract works despite its directors having knowledge that the company had no reasonable prospect of paying the Plaintiff for work done.”

(iii) Dato’ Gan Ah Tee & Anor (in their capacity as liquidators of Par –Advance Sdn Bhd (in liquidation)) v Kuan Leo Choon & Ors [2012] 10 MLJ 706 The High Court in that case ruled that the company directors have carried out the business of the company with intent to defraud creditor on the basis that dividends were paid out ignoring the fact of an ongoing arbitration. Thereafter, judgment was obtained by the sub-contractor and the company was wound up due to inability to pay the debt. It was held that the directors are personally liable to settle the debt.

Re William C. Leitch Brothers Ltd [1932] 2Ch 7, where Maugham J interpreted the phrase as follows: “If a company continues to carry on business and to incur debts at a time when there is to the knowledge of the directors no reasonable prospect of the creditors ever receiving payment of those debts, it is, in general, a proper inference that the company is carrying on business with intent to defraud.” [22] The Court of Appeal in Civil Appeal No. W-02 (NCVC)(W)-1734- 08/2017: Tradewind Properties Sdn Bhd v Zulkiphle bin A. Bakar & 2 Ors, had the task of re-visiting the provisions of Section 304(1) CA and reiterated the law as established in its earlier decision in the cases of Chin Chee Keong (supra), Aneka Melor Sdn Bhd (supra) and Lama Tile (Timur) Sdn Bhd (supra). Hasnah Hashim JCA in delivering judgment also referred to the English cases of Re William C Leitch Bros Ltd (supra). Having also referred to R v Sinclair [1968] 1 WLR with approval, the Court of Appeal went on to state that in order to establish dishonesty under Section 304(1) of the CA, the Court must find that:

according to the ordinary standard of reasonable and honest people what was done was dishonest; and

(ii) that the actor himself must have realised that the act was by those standard dishonest. [23] In LMW Electronics Pte Ltd v Ang Chuang Jay [2010] 1 MLJ 185, Vernon Ong JC (as his Lordship then was), held that the element of “intent to defraud” and of “fraudulent purpose” is established when a company “continues to carry on business to incur debts at a time when there is to the knowledge of the directors no reasonable prospect of the creditor ever receiving payment of those debt, when he had no good reason for thinking that funds would be available to pay those debts when they became due or shortly thereafter”. Note: There is no requirement to establish knowledge that funds will never become available (see In re Leyland DAF Ltd [1995] 2 AC 394 at page 408 and Kawin Industrial Sdn Bhd (in liquidation) v Tay Tiong Soong [2009] 1 MLJ 723). [24] In Tetuan Sulaiman & Taye vs. Wong Poh Kun & Anor [2020] 10 CLJ 121 the court stated the following: “[31] Section 304(1) of the CA 1965 and the present s.540(1) of the CA 2016 deal with fraudulent trading which applied when the business of the company has been carried out with intent to defraud the creditors or for any fraudulent purpose. To succeed, two elements must be proven on the balance of probabilities, namely, firstly, that the business of the company had been carried on with intent to defraud creditors or with a fraudulent purpose and secondly, that the defendants were knowingly parties to the carrying on of the business in that manner. [32] One possible instant where there could be fraudulent trading would be if the company continues to carry on business and incur debts at a time when there is, to the knowledge of the directors, no reasonable prospect of the creditors ever receiving payment of those debts… [34] The other possible instance where fraudulent trading may arise is where after the company had incurred the debts, steps are taken with the intent to avoid making payment to the creditors.” (emphasis mine) [25] As to what is meant by “person who was knowingly a party to the carrying on of the business”, the Court of Appeal in Tradewinds (supra) referred to Re Gerald Cooper Chemical Ltd [1978] 2 All ER 49. As it is not always the case, that proof of such knowledge is easily obtained, whether a person is knowingly a party to the carrying on of the business with intent to defraud can be proven by actual evidence or by way of inference based on the evidence adduced. Suffice to say that in a situation where the defendants in a particular action were appointed and/or nominated as directors of the company concerned and in the course of the company’s business enters into contracts and executes the requisite documentation for those purposes, in absence of evidence to the contrary, it can be inferred that the directors concerned are “person/s who was knowingly a party to the carrying on of the business”- see LMW Electronics (supra). B. Election of “No case to answer” [26] With reference to the Defendants electing not to enter their defence, I am guided by the Federal Court decision in Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim (supra). There the apex court explained that despite a defendant not calling any witness and that even if the plaintiff’s evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving their case. [27] In Formis Resources Bhd & Ors v Risk Management and Safety System Pty Ltd & Ors and Others Appeals (supra), the Court of Appeal referring to the Syarikat Kemajuan Timbermine Sdn Bhd case (supra) on the issue an election of no case to answer, stated as follows: “… even if the plaintiff’s evidence is unopposed (and therefore presumed to be true) this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This means that the trial court is obliged to evaluate the evidence of the plaintiff. That evaluation is aided by considering inter alia whether the plaintiff’s evidence is challenged successfully in cross examination. Where the answer is in the affirmative, the assumption can no longer hold. Similarly, where the evidence led by the plaintiff contains inadmissible evidence such as hearsay, opinion, speculation or conjecture with the witness having no personal knowledge of the matters satisfied, then the assumption is also not available. Unrebutted evidence is not necessarily credible or good evidence as it may be inherently or so unsatisfactory that it cannot be relied upon.” [28] The consequences of electing not to give evidence via a submission of no case to answer, was also clearly explained by the Federal Court in Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 at pages 759-761. There, Gopal Sri Ram FCJ held as follows: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v Bachan Singh [1931]1MC125 at p 128 : If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have one. He expressed dissatisfaction with the appellant’s evidence without asking himself that most vital question: does the first defendant / respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant’s evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. See Guthrie Sdn Bhd v Trans – Malaysian Leasing Corp Bhd [1991] 1 MLJ 33. See also Jaafar bin Shaari & Anor v Tan Lip Eng & Anor [1997] 3 MLJ 693 where Peh Swee Chin FCJ said : ‘The Respondents had chosen to close the case at the end of the appellant’s case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it”. [29] Based on the decision in Takako Sakao (supra), generally a defendant who elects to submit a no case to answer, faces two

prospects:

the presumption that the evidence given by the other party against him to be true; and

(ii) the presumption of adverse inference being drawn against him. Courts Analysis [30] Having analysed the evidence adduced by the Plaintiff and the challenge mounted by the Defendants by way of cross examination, it is my finding that there is sufficient credible evidence adduced by the Plaintiff for a case under Section 540(1) Companies Act 2016 against the Defendants. [31] My justification for deciding so are as follows:

Firstly, by virtue of the Winding Up Order dated 09.01.2018, it is crystal clear that the Plaintiff herein is indeed a creditor armed with the necessary locus standi to bring this action;

(ii) Secondly, the Defendants being the director/s and the company secretary of the Company at the material, are the correct parties to be sued for as a person who was knowingly a party to the carrying on of the business; and

(ii) Thirdly, having examined the Financial Statement of the Company, this Court is of the view that there is evidence of fraudulent trading by the Defendants. [32] My rationale for concluding that there is evidence of fraudulent trading is based on the following factors:

there was indeed a set off and/or contra trade receivables in the sum of RM 1,825,872.00 (see the Company’s Report and Financial Statement dated 31.03.2017 page 105);

(ii) the balance trade receivables sum amounting RM 1,173,691.00 nil as due from company/s in which the directors have substantial financial interest (see Enclosure 29, page 127);

(iii) there was indeed a change to the composition of the directors of the Company wherein D1, D2 and D3 i.e. the original directors of the Company at the material time the debt owed to the Plaintiff was incurred, resigned and replaced by one 81-year-old sole director i.e. D5 who was also D1’s mother. For this purpose, D1, D2 and D3 with the assistance of D4 made amendments to the Company’s “Memorandum and Article of Association” by changing minimum number of directors of the Company from two (2) to one (1);

(iv) Despite the Defendants’ contention that D1, D2 and D3 are not personally liable for the debts incurred by the Company, their counsel Mr Tum submitted to this Court that the change in the composition of directors and structure of shareholdings was done so to avoid D1, D2 and D3 from being blacklisted by the Suruhanjaya Syarikat Malaysia (“SSM”) due to them being directors of a company that had been wound up and therefore, prohibited from acting as a director of any other company. Obviously, in submitting so, Mr Tum failed to understand that the conduct in replacing the directors with intent not to honour judgment/s against the company which they serve as directors is one of the purposes as to why Section 540 (1) Companies Act 2016 was drafted in the first place; and

Hence, it did not matter whether the Plaintiff had managed to prove the SSM documents for purposes of changing the Memorandum & Articles of Association of the Company and the change of directors were backdated. [33] Premised on the above conduct, it is my considered view that the evidence led by the Plaintiff for purposes of proving its claim, ought to have been rebutted by the Defendants on the issue of the trade receivables, the change in the companies memorandum & articles of association, the resignation of D1, D2 and D3 as directors of the Company, the appointment of D5 as the sole company director and the conduct of D4 in preparing and filing the SSM documents to facilitate D1, D2 and D3 to achieve their objective. [34] This Court takes the view that genuineness of the set off and/or contra trade receivables between the Company and the other companies where D1, D2 and D3 have substantial financial interest as stated in the Company’s Report and Financial Statement, can only be explained by the directors in charge of the Company at the material time. In this regard, this Court takes the view that information produced in the report by the auditor was obtained from the directors of the Company and not based purely on the auditor’s own personal knowledge. My view on this is further fortified by the fact that the Company’s Report and Financial Statement was signed by D5 who was only appointed as director on 02.05.2017. It would not have been possible for her to possess knowledge of the financial affairs of the Company (see page 110 and 111 of Encl 29). Inevitably, D1, D2 or D3 being the directors of the Company then should have been called to explain on the nature of the set-off and/or contra of the trade receivables. In absence of such explanation, this Court is entitled to presume that the set-off and contra of the trade receivables from the other companies (RM 1,825,872.00 and RM 1,173,691.00 respectively) was done purely for the purpose of depriving the Plaintiff creditor from reaping their fruit of litigation (see Ng Pak Mui v Tay Mary & Ors [2022] 11 MLJ 115). [35] In light of the Defendants election of a ‘no case to answer’, this Court is entitled to presume that the evidence given by the Plaintiff against the Defendants are true for purposes of proving a case under Section 540(1) Companies Act 2016 following the principles as laid down by the Federal Court in the case of Takako Sakao (supra). Ipso facto, the claim by the Plaintiff must be allowed. [36] Inevitably, this Court can only make one conclusion i.e. that the actions of D1, D2 and D3 action during their tenure as directors of the Company falls squarely within with the test set out in Tetuan Sulaiman & Taye vs. Wong Poh Kun & Anor (supra). [37] My above finding also extends to D4 who was the Secretary of the Company. Without D4’s assistance, the change of directors and the change of shareholding to D5 could not have been effected. Of course, it could be argued that it has not been proven that D4 knew that the change was orchestrated with the intent to evade payment of the judgment sum due to the Plaintiff, nonetheless the fact that D4 elected a submission of ‘no case to answer’ warrants this Court to invoke the presumption of adverse inference against her. Towards this end, the doctrine of willful blindness in following client’s instructions would apply to D4. Orders made [38] This Court made orders as follows: a) First Defendant, Second Defendant, Third Defendant and Fifth Defendant is jointly and severally responsible to Plaintiff to pay all debts pursuant to order dated 28.09.2019 at the High Court of Alor Setar Suit No: 22NCVC-30- 05/2016 for the amount of RM 170,196.44 with interest of 5% per annum from date 28.09.2016 until full settlement; b) First Defendant, Second Defendant, Third Defendant and Fifth Defendant are jointly and severally liable to pay to the Plaintiff for all costs of RM 6,000.00 according to the order dated 28.09.2019 at the High Court of Alor Setar Suit No: 22NCVC-30-05/2016; c) The Defendants jointly and severally liable to pay the Plaintiff for such legal costs stated in paragraph 26 Statement of Claim amounting to RM 76,031.90; d) First Defendant, Second Defendant, Third Defendant and Fifth Defendant is liable to each pay General Damages of RM10,000.00 to the Plaintiff; e) The Fourth Defendant is liable to pay RM 50,000.00 as Exemplary Damages to the Plaintiff; and f) Interest at the rate of 5% per annum on the amount of judgment from the date of filing of this suit until the date of full settlement; Cost [39] Having heard brief submission from counsel on the issue of costs, considering the length of the trial, the complexity of issues and the getting up done towards the submissions both written and oral, I find a sum of RM 15,000.00 (subject to allocator) is reasonable towards the cost of the trial. I order so accordingly. Dated 28th December 2023, ….………………………. MOHD FIRUZ JAFFRIL JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff : Messrs Parma’s Chamber No 51-4 (3rd Floor) Jalan SP 2/1 Taman Serdang Perdana Seksyen 2, 43300 Seri Kembangan Selangor (Ref: PC/L/154/19) Solicitors for the Defendants : Messrs Shang & Co Suite C-27-01 Level 27, KL Trillion No 338, Jalan Tun Razak 50400 Kuala Lumpur (Ref: LIT/CIVIL/00670/2019)