Hadrons Consulting Sdn. Bhd. v Lbcn Development Sdn. Bhd. (WA-22NCvC-215-05/2020)

KOAY HAN KERN 45 (No. K/P: 840915-04-5007) …DEFENDAN-DEFENDAN JUDGMENT (Enclosure 1) 50 [1]

INTRODUCTION 1 The case involves legal actions between Hadrons Consulting Sdn Bhd and multiple companies over the veracity of contractual payments under the Corporate and Strategy Advisory Agreement (CSAA) dated 12.12.2012:

Hadrons Consulting in WA-22NCVC-215-05/2020 sought legal redress for unpaid consultancy fees and performance incentives under the CSAA, amounting to RM31,287,971.75.34 in cash and kind.

The companies in WA-22NCVC-227-05/2020, including LBCN 60 Development Sdn Bhd and others, filed a countersuit alleging breaches of contract and fiduciary duties by Hadrons Consulting.

The court consolidated Suit 215, filed by Hadrons, and Suit 227, filed by the companies, addressing common issues in a single hearing. 65

1.2 On 23.01.2025:

After considering all cause papers, evidence at the trial, and the parties' respective arguments. On the balance of probabilities:

In Suit 215 Hadrons/P had succeeded in discharging their burden, and I 70 ruled in their favour. Consequently, I entered a final judgment against the defendants and allowed Hadrons/P’s prayers with costs.

In Suit 227 I find no merits in fact or law in Suit 227, that are sustainable 75 against the defendants therein. Consequently, I dismissed it with costs.

In both of the above suits, I ordered a global cost to be paid within sixty (60) days from the date of this order. 80

Aggrieved, the following parties on 23.01.2025 filed their respective appeals against my decisions as follows:

In Suit 215 LBCN/D1, Mujur Zaman/D3, and Liputan Canggih/D5 (collectively the Ds in this Suit 215) appealed against my 85 entire decision that ruled in favour of Hadrons/P’s.

In Suit 227 LCBN/P1, Mujur Zaman/P2, and Liputan Canggih/P3 (collectively the Ps in this Suit 227 herein) appealed against 90 my entire decision in dismissing their claims against the defendants. Since both suits are consolidated, heard together and involved similar subject matter and facts, I will only prepare a single judgment to avoid 95 duplicity.

1.3 The witnesses at the trial were:

Hadrons:

Umar bin Ali Bashah (PW1): Witness Statement (WS) L.244.

C.S. Tang (PW2): was subpoenaed by Hadrons.

Thangaraj a/l Balasundram (PW3): was subpoenaed by Hadrons.

Prasad Rathinasamy (PW4): WS L.273.

Koay Han Kern (PW5): WS L.232, L.245 and L.295.

Koay Kang Chuwan (PW6): WS L.231 and L.319.

Companies (LBCN, Mujur Zaman, and Liputan Canggih):

Grace Sam Hui Mei (DW1): WS L.339, L.340 and L.341. My determination of these cases is based on what the evidence before I 110 disclose and in whose favour the scale of evidence has tilted. The reasons are as follows: [2]

THE SALIENT FACTS 1 In a nutshell, both suits concern the legal redress sought on the 115 veracity of contractual payments arising:

Under the Corporate and Strategy Advisory Agreement dated 12.12.2012 (CSAA) to Hadrons Consulting Sdn Bhd (Hadrons/P) (L.204 CBD pg 4-19).

In WA-22NCVC-215-05/2020 (Suit 215) dated 06.05.2020: Hadrons/P was formally appointed by LBCN Development Sdn Bhd (LBCN/D1), Berkat Gagah Sdn Bhd (Berkat Gagah/D2), Mujur Zaman Sdn Bhd (Mujur Zaman/D3), and Betayan Properties 125 Sdn Bhd (Betayan Properties/D4) on 12.12.2012 to address the serious financial situations of these named Ds’ companies:

LBCN/D1 (a wholly owned subsidiary of Berkat Gagah/D2) is the registered proprietor of eight (8) lots of land in Mukim Ijok, 130 Kuala Selangor, earmarked as Alam Perdana township development.

Mujur Zaman/D3 (a wholly owned subsidiary of Betayan Properties/D4) is the registered proprietor of twenty (20) lots of land in Mukim Ijok, Kuala Selangor, of which nineteen (19) 135 lots have been earmarked for Alam Mutiara township development.

These Ds’ companies mentioned above are under the management of a common board of directors.

These companies are under dire financial distress and face 140 threats of insolvency that would adversely impact their stakeholders and others, including financial institutions, the State Government of Selangor, and approximately 987 Rancangan Revolusi Hijau settlers.

These companies were in a deadlock with the State 145 Government over the Ijok lands, the ensuing acquisition, and the compensation payment.

Hadrons, engaged as the Corporate and Strategy Advisor, was contractually tasked with providing strategic support and advice and assisting these financially distressed Ds’ 150 companies in salvaging the predicament. These companies require the active participation of Hadrons and other professionals and consultants to mitigate and resolve their serious financial situations.

Clause 6.1 of the CSAA above provides that Hadron was 155 responsible to:

Address the impasse with the State Government.

(ii) Resolve and reduce claims by Creditor Banks.

(iii) Maximize Recovery.

(iv) To align competing objectives among the stakeholders having 160 legitimate claims in recovery for a harmonious resolution.

An Executive Committee was appointed to achieve the intentions of the CSAA comprising:

Koay Kang Chuwan and Prasad Rathinasamy from Hadrons, with 165 Koay sitting as Chairman.

(ii) Chin Chee Hoe from Mujur Zaman and Chan Kim Chee from LCBN.

(iii) All decisions by the EXCO shall bind all the aforementioned companies (clause 6.3.10).

(iv) The EXCO is given full authority to carry out the obligations under the CSAA, including payments to Hadrons (clause 6.3.8).

Under clause 7, Hadrons were to be paid RM50K per month retainer fee, commencing retrospectively six months from the 175 date of the CSAA until third-party payments are fully resolved.

Apart from the above retainer fee, the companies agreed under clause 8 of the CSAA to pay Hadrons Fee &

A fee of 10% of the Net-Recovery if it is less than RM100m.

(ii) A fee of 20% of the Net-Recovery if it exceeds or equals RM200m.

(iii) If the Net-Recovery exceeds RM200m, a Performance Incentive of 30% over and above the Net-Revovery of RM200m.

(iv) These payments are net of any retainer fee already paid to Hadrons.

The CSAA cannot be terminated without the payments of these incentives.

Liputan Canggih Sdn Bhd (Liputan Canggih/D5) is a company that benefitted from the Hadrons/P's successful resolution in the 190 scheme of arrangement, which saved Liputan Canggih/D5 from its serious financial situations. They never objected nor ejected themselves from the benefits acquired under the scheme of arrangement in which the lands they owned were part and parcel of the proposed resolution. Hadrons/P always maintained that 195 they intended it to be a non-gratuitous act at all material times.

Tetuan Abraham Ooi & Partners (Tetuan AOP/D6) was the appointed stakeholder.

This is the contractual bargain that the parties had entered.

In WA-22NCVC-227-05/2020 (Suit 227) filed on 13.05.2020: A week after Hadron filed Suit 215 against them, LBCN, Mujur Zaman, and Liputan Canggih (collectively the Ps in Suit 227) elected not to counterclaim against Hadrons/P in Suit 215 but 205 instead counter-sued Hadrons/D1 in this Suit 227 together with:

FOS Advisory Services Sdn Bhd/D2.

Hadrons Capital Sdn Bhd/D3.

Koay Kang Chuwan/D4 (A director of Hadrons Group of Companies)

Prasad Rathinasamy/D5. (A director of Hadrons/D1)

Koay Han Kern/D6. (A director of Hadrons Group of Companies) 215 2.2 On 02.02.2021 this Court ordered Suit 215 and Suit 227 to be consolidated and heard together. It is to be noted too that, after I took over the conduct of this part-heard from the previous learned sitting Judge (10.12.2021), I was alluded, that in Suit 215, the claim against Bentayan Properties Sdn. Bhd. (D4) and Tetuan Abraham Ooi & 220 Partners (D6) had been dismissed with costs. There was no appeal filed against this Order. In a nutshell, these Ds companies mentioned above:

Took over the Ijok Lands several decades ago under the 225 Rancangan Revolusi Hijau settlers with a promise of RM180,000 cash compensation and a housing unit worth RM180,000 (totalling RM380,000 in cash and kind) that remained outstanding for over twenty years from the date the impugned lands were acquired. 230

The companies charged the impugned land to the banks for loans in the hundreds of millions, but these companies failed to deliver their obligation to the Rancangan Revolusi Hijau settlers.

A complete scheme of arrangement that offered a comprehensive solution which required a white knight to save these Ds companies 235 and satisfy all affected stakeholders.

2.3 Eventually, Hadrons/P was able to put together a scheme of arrangement with Paragon Pinnacle Sdn Bhd (the white knight: a subsidiary of ECO-World Development Group, with EPF as the 240 substantial shareholder) that agreed to purchase the encumbered Ijok Lands for RM1.18b, with an undertaking to build and deliver 987 units of houses for the Rancangan Revolusi Hijau settlers:

6 SPAs were entered with Paragon Pinnacle Sdn Bhd to buy out the encumbered impugned land.

A Global Settlement Agreement was executed on 22.09.2015 to record the scheme of arrangement.

As there were many civil suits adversely affecting the parties, the Settlement Agreement was sealed with a Consent Order by the Federal Court on 17.05.2016 (L.204, CBD, pp.401-415), for the 250 white knight to proceed with the purchase of the impugned Ijok Lands.

In January 2020:

The global Settlement Agreement (SA) was finally completed successfully, and Hadrons would have completed its 255 obligations under the CSAA, as these Ds companies acknowledged on 07.02.2020 (L.206, pp.133-134).

The sale proceeds from the Ijok lands and other recoveries were credited into the Co-Mingled/Stakeholder’s Account.

Rancangan Revolusi Hijau settlers, the banks, non-bank 260 creditors, and the state government have all been resolved, leaving the distressed companies’ debt-free.

2.4 With the successful conclusion of their services to these companies, Hadron claimed the payment of their final invoice under the CSAA:

Consulting fees and Performance Incentives RM132,301,971.75 265 (NOP: L.349 pg 24, line 13-22).

A sum of RM94,594,000 (comprising cash and contra properties) already paid to Hadrons.

A balance of RM31,287,971.75 remained outstanding.

The companies agreed to contra The Stride Strata Office at Bukit 270 Bintang City Centre, Unit Number: D3-09-01, for RM5m.

The balance cash of RM26,287,971.75 remained outstanding.

2.5 However, the companies disputed Hadrons's fees and performance incentives claims and alleged that Hadrons allegedly breached 275 fiduciary duties. This led us to Suit 215 by Hadrons and Suit 227 by the Ds companies:

Suit 215 by Hadrons is for declaratory, injunctive, and monetary relief on the outstanding consultancy fees.

Suit 227 is by the companies against Hadrons for alleged 280 breaches of contract and fiduciary duties on the alleged arbitrary inflation and premature release of the consultancy fees.

Sharing common issues, my observation and decision is grounded on the available evidence before I, reveal which party it favours. 285 [3] THE PARTIES RESPECTIVE ARGUMENTS In arriving at my findings, I duly examined the cause papers, evidence and the parties' arguments, in a nutshell, as follows: 290 [4] Hadrons/P Submissions on Suits 215 & 227: Contractual Engagement & Performance 4.1 When Hadrons/P was engaged by the Companies/Ds:

The overall situation adversely affecting the Ds was uncertain. Their 295 only substantial asset was the Ijok lands, which had not been paid for and were heavily encumbered by the banks.

This uncertainty led to an agreement that Hadrons/P Consulting Fees and Performance Incentives basis were cemented in clause 8 of the CSAA: 300 8.1 A Fee of 10% of the Net Recovery shall be paid in the event that the Recovery is less than or equal to RM100 million.

8.2 A Fee of 20% of the Net Recovery shall be paid in the event that the Recovery exceeds RM100 million but is less than or equal to RM200 million. 305 8.3 In the event that the Net Recovery exceeds RM200 million, a Performance Incentive of 30% of the amount over and above the Net Recovery of RM200 million shall be payable.

8.4 The Fee and Performance Incentive payable to Hadrons, as set out herein, shall be net of any Retainer Fee that has already been paid to 310 Hadrons.

4.2 It took Hadrons/P several years to put together a scheme of arrangement involving a white knight (Paragon Pinnacle Sdn Bhd) to buy over the Ijok lands for RM1.18B with an undertaking to build and 315 deliver 987 units of houses for the Rancangan Revolusi Hijau settlers that the Companies/Ds had defaulted to deliver for over twenty years to date:

Six SPAs for the impugned Ijok lands were executed by the Companies/Ds and Ringgit Exotika Sdn Bhd with the white knight 320 (Paragon Pinnacle Sdn Bhd):

The directors of the Companies/Ds were fully aware of as admitted by DW1 (NOP: L349 pg.189, lines 18-21).

The SPAs were split and not completed concurrently due to the caveats encumbering several of the impugned land 325 belonging to Mujur Zaman/D3 entered by Citra Tani Sdn Bhd, as explained by PW5 (NOP: L317, lines 33-39).

The caveats that caused the delay in completing the SPAs were eventually removed in Shah Alam High Court OS No: BA-24-1299-12/2016 (L.226 pg.69).

Citra Tani is a company related to the Companies, where DW1’s mother-in-law (also CCL’s wife), Yam, is a director. DW1 confirmed this (NOP: L.349 pg.211, lines 26-29).

Hadrons/P persuaded competing claimants to accept the 335 proposed resolution, which led to the execution of a Settlement Agreement on 22.09.2015 on the terms and conditions agreed to therein (L.204 CBD pp.352-372).

This global resolution affecting the Companies/Ds was sealed in a 340 Consent Order at the Federal Court on 17.05.2016. This Federal Court Consent Order facilitated the white knight successfully acquiring the impugned Ijok lands from the embattled Companies/Ds and also by assurances from the State Government that it would revoke the land acquisition proceedings 345 over the said lands, dissolve the registrar’s caveat encumbering the said lands, and approving the transfer of the Ijok lands to the white knight.

Hadrons/P completed the foregoing global scheme of 350 arrangement in approximately seven (7) years, which the Companies/Ds management challenges and obstacles did not make it easy.

Proceeds from the sale of the Ijok lands were credited into the Co-Mingled / Stakeholder’s Account for the settlement of all creditors 355 of the Companies/Ds reflected in the Federal Court order.

From the sale proceeds, Hadrons/P settled the debts with the banks, non-bank creditors, Rancangan Revolusi Hijau Settlers and the State Government, freeing the impacted Companies/Ds from its adverse financial liabilities.

In a Companies/Ds letter dated 0.7.02.2020 (L.206 CBD pp.133-134) to Hadrons/P, they acknowledged in paragraph 4 that Hadrons had achieved what it could under the CSAA and duly discharged Hadrons under the said CSAA.

With the conclusion of its duties under the CSAA, Hadrons/P 365 issues a final invoice for its remaining fees and performance incentive as agreed in clause 8 of the CSAA but

denied by the Companies/Ds arguing that Hadrons had already been paid, and

(ii) alleged that Hadrons had acted in breach of its fiduciary duty. 370 Computation of Fees and Incentives 4.3 Hadrons/P offered evidence:

In the computation (clause 8 CSAA) of its Consulting Fees and Performance Incentive of RM132,301,971.75. PW5 affirmed the 375 calculation (L.206 CBD pg 133-134, NOP L.349 pg 24 lines 13-22)

It was explained:

That RM94,594,000 had already been paid, leaving RM37,707,971.75, which was further reduced by 380 RM5,420,000. The balance outstanding to date is RM31,287,971.75, which was supposed to be settled in cash and in-kind.

In cash: RM26,287,971.75 385

(ii) In-Kind (RM5M): The Stride Strata Office at Bukit Bintang City Centre, Unit Number: D3-09-01.

The impugned CSAA under clause 8 (CSAA) and Schedules 4 to 5 of the Settlement Agreement govern the financial 390 entitlement of Hadrons/P that are not in dispute: This is what parties had expressly agreed to and should not be allowed to renege from that bargain after Hadrons/P had delivered its part of the bargain. 395

Hadrons/P alluded the Court to the Companies/Ds refusal/failure to call the alleged de facto controller of the Ds (except for Liputan Canggih/D5), Dato Chin Chan Leong (Dato Chin/CCL) that had been directly involved in the management of the Ds since 1999 even before Hadrons/P’s appointment in 2012:

It was pointed out that CCL had daily meetings with Hadrons/P attested to by PW4, PW5, PW6, and DW1 (NOP: L.349 pg.331, lines 11-28; NOP: L.347 pg.116, lines 1-26), where CCL could easily clarify the Court on the situation between the parties but was intentionally left out of the 405 proceedings in Suits 215 and 227 by the Companies/Ds.

There is no rebuttal evidence from the Companies/Ds on the commanding influence of CCL as a de facto controller of the Ds. It is not denied that soon after the Ijok lands were alienated to the Companies, the de facto controllers charged 410 it for several hundred-million-ringgit loans that they eventually were not able to pay, leading to the adverse financial problems. It also left the Rancangan Hijau Settlers to suffer, waiting for their entitlements that were defaulted by the Companies for over twenty years.

It is also not denied that CCL was convicted under section 84(1) of the Securities Industries Act 1983 on false trading and market rigging transactions, which makes it a criminal offence, and was sentenced to more than six months in prison, which he served in Kajang from 27.06.2012- 420 17.01.2013. He is presently an undischarged bankrupt.

It has been led into evidence that the Board of Directors took instructions from CCL as the advisor to the Ds in dealing with Hadrons/P (NOP/DW1: L347 pg.148, lines 10-36, pg.149, lines 1-18)

It has been pointed out that instead of CCL, who had direct 425 knowledge of the events and dealings, the Companies/Ds elected to call DW1 as their key and only witness to rebut Hadrons's case when she had no direct personal knowledge and contemporaneous involvement in events that had unfolded. She could only offer a distorted interpretation of 430 events, documents and hearsay evidence at the trial: Section 60(1) EA 1950.

DW1 never participated in any meetings involving Hadrons, the negotiations on the CSAA, or the Settlement Agreement terms to shed light on the issue. DW1 can’t possibly illuminate 435 the terms recovery and payout within the context of the CSAA: Tindok Besar Estate Sdn Bhd v Tinjar Co [1972] 2 MLJ 229, FC observed that it is safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from 440 them than to believe his subsequent recollection or version of it, mainly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the 445 other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.

Hadrons/P, therefore, call for an adverse inference under s.114(g) EA 1950 against the Companies/Ds for their failure/refusal to call CCL and other directors to offer 450 appropriate evidence before the Court. Court Proceedings 4.4 During the proceeding before the previous Judge, His Lordship dismissed Hadrons/P’s application to strike out Suit 227 under O.18 455 r.19 RC 2012 on the basis that there were issues to be answered and directed Suits 215 and 227 to proceed to trial:

At the onset of the trial before the previous Judge, the Companies/Ds elected to adopt an altered position by withdrawing all allegations of impropriety with prejudice concerning purported 460 commissions, kickbacks, and discounts thrown against Hadrons and only seeking to focus on the fee issue alone.

Hadrons argued that it was purely because the Ds had no plausible evidence in all the Companies/Ds filed bundles of documents to establish their alleged supposed impropriety with no 465 particularisation in the SoC as legally required by the rules (O.18 r.8(1) RC 2012). These unfounded allegations were disingenuous in securing the dismissal of Hadron's striking-out application earlier and now serve no more purpose at the trial proper.

A MACC criminal investigation on those unfounded allegations in 470 March 2018 involving the parties uncovered no proof they existed and was not proceeded with by the agency. The Companies/Ds, knowing the absence of such material evidence, saw fit to raise these bogus allegations in Suits 215 and 227 in 2020. It smacks of bad faith before this Court. Hadrons cited in support the Court 475 of Appeal’s observation in Ng Ah Ba & Ors v Ramada Sdn Bhd [1996] 1 MLJ, CA: “On the totality of all the evidence, it could be concluded that the allegation of a conspiracy to defraud was frivolous and made without any basis. It must be remembered that taking a plea of fraud is a serious matter and that no 480 such plea should be put on record without sufficient material in support. The judge was entirely correct in his decision that there was no triable issue nor any other reason for a trial.” The Companies/Ds in the present case did not come to Court with 485 clean hands. The Court of Appeal observed in Low Chi Hong & Ors v Low Chi Yong (t/a Reynox Fertichem Industries) [2016] 5 MLJ 697112, CA, that equitable relief would not be granted if the party seeking it breaches any of the twelve equitable maxims.

Hadrons further argued that the allegations were engineered in 490 bad faith to misdirect the Court in circumventing estoppel and res judicata, as this was the Ds' second attempt to challenge Hadrons/P consulting fees and performance incentives, which had already been determined. The first attempt:

In Suit 352 (WA-22NCVC-352-07/2017) against Hadron's fees and allegation of breach of fiduciary by LBCN/D1 was withdrawn with prejudice on 21.08.2018 (L.215 CBD pp.237- 239).

In Suit 27 (BA-22NCVC-27-01/2017 by Citra Tani Sdn Bhd: 500 L214/pp.4-41) against Hadrons/P to try and reduce the agreed fees by attempting to exclude five parcels of the impugned Ijok lands from the equation failed when the High Court found no evidence of payment for the said lands by Citra Tani, that involved the forging of the Inland Revenue 505 Board’s rubber stamp, as confirmed by the IRB’s letter dated 18.07.2017 (L.227 CBD pg.4).

Suit 27 was also used to deny the Rancangan Revolusi Hijau Settlers the community hall that was part of the accord and satisfaction of their LAD claim against the Companies/Ds, 510 which Hadrons/P had successfully negotiated.

Hadrons/P and LBCN/D1 in Suit 352 agreed that it would be withdrawn, with prejudice, and the terms agreed in the Memorandum of Agreement shall be a full and final settlement of their disputes (L.204 CBD pp.457-460). It was 515 amicably resolved between them in a Memorandum of Agreement (02.08.2018).

Clause 10 of the MOA prohibits further claims against each other (L.204 CBD pg.461). Parties then varied the MOA on 22.08.2019 (L.204 CBD pp.465-467), and a month later, a further 520 variation (L.204 CBD pp.468-468). Both variations do not support the arguments of the Companies/Ds in contesting Hadrons/P fees and performance incentives. On the contrary, it supports the position of Hadrons/P on its claimed fees and performance incentives.

Res judicata and issue estoppel must, in the circumstances, bar relitigating similar issues in Suit 227:

Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 3 MLJ 331, FC that allows the Court greater latitude to consider the broader concept of unconscionability when 530 applying estoppel.

(ii) Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ, FC observed: The doctrine of res judicata is not confined to causes of action or issues that the Court is actually asked to decide or has already 535 decided on. It also covers causes of action, issues, or facts that, though not already decided as a result of not being brought forward due to negligence, inadvertence, or deliberately, are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the court's 540 process to allow a new proceeding to be started in respect of them.

All things considered, the Companies/Ps in Suit 227 cannot lift the veil of incorporation as desired, as Hadrons Group of Companies is not a sham organisation, as maliciously alleged. There is no 545 compelling or definitive evidence to support save for farfetched assertions that carry no evidential weight. Suit 227 is vexatious.

4.5 It was pointed out that Suit 227 by the Companies/Ps against Hadrons & Ors/Ds is a sham founded on conjecture and bad faith to deny 550 Hadrons its right to the fees and performance incentive as agreed in the CSAA and the Settlement Agreement. The Companies/Ps came with dirty hands to the Court from the facts and circumstances. Intentional distorted misinterpretation 555 4.6 The Companies/Ps deliberately attempted to raise issues on the terms

recovery and (ii) payout that had been appropriately defined and cemented in the CSAA (L.204 CBD pg 8, clause 3.15 & 3.16) and the Settlement Agreement by the parties:

The issue concerned compensation of RM45,107,176.18 as reflected 560 in the Federal Court Consent Order paid by the authorities for the compulsory acquisition of PT3861 and PT3864 belonging to LBCN/D1:

The said compensation sum was paid to the Court, consequent upon the competing claims from Citrasa Haruman Sdn Bhd and Kuwait Finance House that remained 565 unresolved.

The Companies/Ds took the position that this compensation cannot form part of the recovery as it was awarded to LBCN/D1 even before Hadrons/P was appointed under the CSAA. The Companies/Ds relied entirely on the evidence of 570 DW1 (hearsay evidence), who was not involved in the land acquisition nor the dispute on the compensation sum. Chin Chan Leong (CCL) was directly involved but was not called to offer evidence.

Hadrons/P successfully negotiated with the competing 575 parties, and the compensation sum paid to the Co-mingled / Stakeholder’s Account was part of the total recovered assets.

In the Settlement Agreement, under recital L, the parties agreed that the Court deposit deed would be recovered and paid into the stakeholders' account. This can be seen in the 580 Federal Court Consent Order.

Hadrons/P successfully negotiated for Citarasa Haruman Sdn Bhd to agree to accept RM15,000,000.00 from the compensation sum in the Co-mingled/Stakeholder’s Account to relinquish its claim.

Hadrons/P also successfully negotiated an accord and satisfaction over the compensation sum with the Kuwait Finance House. Companies/Ds Unsupported allegations 590 The Companies/Ds took a contradictory stand. On the one hand, they agreed that the sales proceeds need to be co-mingled, while on the other, they claimed that Liputan Canggih/D5 proceeds and Ringgit Exotika sales proceeds should not form part of the recovery: 595 4.7 The Companies/Ds also argued that Liputan Canggih/D5 was not a party in the CSAA and had never appointed Hadron/P to act on its behalf. Therefore, it was argued that the sale proceeds of its lands should not be treated as part of the recovery:

Hadrons/P took the position that throughout the global scheme of 600 arrangement exercise, none of the Ds ever told Hadrons/P that they were not acting for them. Liputan Canggih/D5 cannot support its position given that the Federal Court Consent Order concerning the six SPAs with the white knight (Paragon Pinnacle Sdn Bhd) were inter-conditional. In addition, Liputan Canggih/D5 was a 605 signatory and a party to the Settlement Agreement, and the said Federal Court order binds them.

Hadrons/P alluded to the Court that when the CSAA was executed, Liputan Canggih/D5 was a company in liquidation and 610 could not execute it. However, the liquidator confirmed that Hadrons/P had been retained by Liputan Canggih/D5 (L.206 CBD pp.9-10). The power to appoint is vested with the liquidator. The directors could not challenge the appointed liquidator in determining the company's direction. It is trite law that once 615 liquidation is ordered, all company directors automatically vacate their seats on the board of directors. All management powers rest with the appointed liquidator. The present directors of Liputan Canggih/D5 are in no position to challenge the appropriate exercise of the liquidator’s power when appointing Hadrons/P.

Liputan Canggih/D5, (i) in its board resolution dated 14.08.2015 and the member's resolution, acknowledged that Hadrons/P had been retained to resolve the impasse, and DW1 confirmed in her evidence that throughout the exercise, Liputan Canggih/D5 was 625 represented by Hadrons/P (NOP L.349/pg.15, lines 11-37), (ii) this can also be seen in a letter by the Companies/Ds dated 07.02.2020, where Liputan Canggih was also a signatory (L.206 CBD pp.133-135) and (iii) DW1 in her capacity as a director of Liputan Canggih/D5 issued a letter that the companies are bound to the CSAA and the 630 Settlement Agreement (NOP L.349 pg.77, lines 5, 36-37).

it cannot be denied that Hadrons/P successfully negotiated with the State Government of Selangor for the removal of the Registrar’s caveat impacting the lands and in facilitating the 635 settlement in the form of a Tripartite Agreement between the Rancangan Revolusi Hijau Settlers, Liputan Canggih/D5 and Mujur Zaman/D3 on 11.01.2016 (L.21 CBD pp.4-73).

The State Government’s compulsory acquisition and the entry of 640 the registrar’s caveat:

Encumbering the impugned lands was required when the Companies/Ds defaulted in honouring their contractual obligations to the Rancangan Revolusi Hijau settlers until the implementation of the global scheme of arrangement 645 facilitated by Hadrons/P.

It was misleading and wrong for the Companies/Ds to submit that the Registrar’s caveat on Liputan Canggih/D5 land was the cause of the Companies’ financial difficulties when they were already insolvent at the time and unable to service their 650 loans (23 charges impacting all the impugned Ijok lands - L.239 CBD pp.16-17) running into the hundreds of millions of ringgit even before the Registrar’s caveat was entered and the compulsory acquisition taking place. See the Court of Appeal in LBCN Development Sdn Bhd & Anor v Pengarah 655 Tanah dan Galian Selangor & Ors [2014] 3 MLJ 445, CA.

It is not denied that the Companies did not deliver the contractual bargains to the settlers until the white knight came in and bought over all the impugned lands under the global scheme of arrangement.

It is irrefutable that Liputan Canggih/D5 had benefitted from the success of the global scheme of arrangement and the sale of the lands to the white knight. They can't be allowed to approbate and reprobate.

4.8 Untenable position on the Ringgit Exotika Sdn Bhd’s land:

From the evidence of DW1 (L.216 CBD pp.194-195 and pg.204), Mujur Zaman/D3 had transferred land to Ringgit Exotika Sdn Bhd to be used as collateral for a loan by the latter. The beneficial interest in 670 that impugned land still resides with the Rancangan Revolusi Hijau settlers that Mujur Zaman/D3 had not resolved. To protect the interests of the impacted settlers, the state government entered a registrar’s caveat on that land, subject to government acquisition, that would adversely impact the global scheme of 675 arrangement as the white knight would only take all the impacted land, including the ones transferred to Ringgit Exotika Sdn Bhd. Failing which, the deal with the white knight would fail.

Ringgit Exotika Sdn Bhd was a party in the Settlement Agreement and agreed that sale proceeds would be paid into the Co-mingled 680 / Stakeholder’s Account. It formed part of the scheme of arrangement expressed in the Federal Court Consent Order.

Hadrons/P had successfully negotiated the revocation of the acquisition proceedings with the State Government, which subsequently revoked its acquisition proceedings. Ringgit Exotika 685 Sdn Bhd land was still encumbered with unsettled contractual obligations to the Rancangan Revolusi Hijau Settlers.

After benefitting from the Global Scheme of Arrangement, one cannot now come and claim that it was not part of the arrangement. Hadrons/P has alluded to the fact that: 690

The issue concerning Ringgit Exotika could have been raised in Suit 352 in 2017 when monies payable to K&A Management (100% shareholders of Ringgit Exotika) were captured as an unrelated party. The sale of Ringgit Exotika lands was already captured in the Schedule to the Settlement 695 Agreement. K&A is Chin Chan Leong's (CCL) business partner and an investor in the companies. They were never categorised or treated as a creditor to the Companies/Ds in the global scheme of arrangement.

The K&A Agreement dated 17.03.2015 between Mujur 700 Zaman/D3 and Liputan Canggih/D5 and their holding companies, with K&A (100% shareholder of Ringgit Exotika) provides for a profit-sharing arrangement between them over Ringgit Exotika’s entitlement amounting: RM150,174,440.65: (L.204 CBD pg.27, clause 4.2 K&A Agreement).

Proceeds from the sale were to be deposited in the Co-Mingled / Stakeholder’s Account to meet the needs of the Companies/Ds (debts). Ringgit Exotika land proceeds are part of the recovery process.

The Settlement Agreement and the Schedules provided the 710 payment milestones to K&A Management from the Co-mingled / Stakeholder’s account.

Payments made to K7A Management were treated as a distribution to the companies, as parties had envisaged and agreed (L.204 CBD pg 27 clause 5.1 and pg.458).

4.9 As provided for in clause 3.16 of the CSAA, total payouts are payments made to the Companies/Ds creditors. Therefore, in light of the construct of this provision, Hadrons/P asserts that payments to K&A from the Co-mingled / Stakeholder’s Account cannot be regarded as a 720 payment to a creditor.

4.10 In rebutting the Companies/Ds' misleading allegation of not making any provision for refunds to supposedly thirteen (13) bungalow lot purchasers on LBCN/D1 land (PT.3862), Hadrons/P explained that:

When Hadrons/P and LBCN/D1 in Suit 352 agreed that it would be withdrawn, with prejudice, the terms agreed in the Memorandum of Agreement shall be a full and final settlement of their disputes (L.204 CBD pp.457-460). It was amicably resolved between them in a Memorandum of Agreement (02.08.2018).

Provision of RM30M had already been made for the purpose in the foregoing Memorandum of Agreement under clause 5.1 (L.204 BOD pg.458), to enable the removal of the private caveats affecting the impugned land also to be sold to the white knight (Paragon 735 Pinnacle Sdn Bhd) under the global scheme of arrangement.

The RM30M had already been used to clear the bona fide bungalow lot purchasers: Hadrons Final Summary (24.02.2020: L.206 VBD pp.212-214). The list of bona fide bungalow lot purchasers 740 was tainted with unknown purchasers in an attempt by the Companies/Ds to reduce Hadrons/P total fees, but this was thwarted.

4.11 In rebutting the issue of supposed omitted settlers (as defined in clause 745 7.4 of the Memorandum of Agreement) raised by the Companies/Ds, Hadrons/P submitted:

When the companies took over the settlers' lands, there were originally 1,067 settlers in the Rancangan Revolusi Hijau program: (NOP L.286 pp.43-44). 750

It is irrefutable that out of 1,067 settlers, 80 of them were taken over and replaced by Phoenix Jupiter Sdn Bhd (a company whose shareholder includes Chin Chan Leong’s (CCL) brother with DW1 as a director (L.279 Hadron’s bundle pp.4-15, and 16-116). That reduces 755 the total number to 987 settlers.

Unhappy with the reduced numbers, the Companies/Ds attempted to revise the list to 1,067 by including assignees and nominees connected with the Companies/Ds and Chin Chan Leong (CCL). 760 It caught the furious attention of the State Government, and the list of settlers was reverted to 987 settlers.

A provision for RM30M was made in the Memorandum of Agreement to settle the settlers’ issues (L.204 CBD pp.457-460). 765 No evidence has been produced of any supposed omitted settlers raised by the Companies/Ds coming forward to put their claim. This is another attempt by them to reduce Hadrons/P fees and performance incentives; it never intended to compensate the supposed omitted settlers.

4.12 In rebutting the Companies/Ds objection to Hadrons/P instruction to the stakeholder, Messrs Abraham Ooi & Partners/D6, to allocate RM3.5M to construct a community hall for the Rancangan Revolusi Hijau settlers, it was argued that:

The legal consequence of a year's delay in the construction, completion, and delivery of the agreed housing units to the settlers by the white knight led to a total LAD due to all the settlers (980) amounting to RM24.5m. 780

The delay was occasioned by Citra Tani’s Suit 27, which was eventually withdrawn with prejudice.

Hadrons/P succeeded in negotiating a settlement on the LAD, getting the settlers to accept a community hall as satisfaction for 785 foregoing their claims on the LAD. However, that community hall has failed to be constructed and delivered, as the Companies/Ds reneged on their obligations in the Memorandum of Agreement.

4.13 Hadrons/P argued that they are entitled to be reimbursed for the sum 790 of RM599,488.00 paid in defending Suit 534 (L.206 CBD pp.180-181) contrary to the position taken by the Companies/D that Hadrons/P were not entitled to in Suit 227:

It was agreed in clause 11 of the CSAA (L.204 CBD pg.13) that the Companies/Ds are to hold Hadrons/P harmless and to indemnify 795 them against all costs and expenses arising in the course of carrying out their duties in the CSAA. Similarly, the same position applies in clause 9.2 of the Memorandum of Agreement (L.204 CBD pg.460). Suits 352 and 354 were Hadrons/P who were brought in as parties for their duties and performance under the 800 CSAA.

Hadrons/P is also seeking to set up an RM3M provision from the Co-mingled/Stakeholder’s account to cover expenses occasioned in its defence against third-party proceedings in Suit 534, which is still pending before the High Court in Shah Alam. Chin Chan 805 Leong (CCL) had earlier agreed to make this provision.

4.14 Messrs Daim & Gamany’s role in the Tripartite Agreement between the Rancangan Revolusi Hijau settlers on the one side and Mujur Zaman/D3 and Liputan Canggih/D5 on the other that had resolved 810 outstanding legal issues impacting them. The said legal firm had represented the settlers in effectuating the settlement and terms of the settlement:

Hadrons/P had instructed (L.206 CBD pg.193) the said legal firm be paid a further sum of RM2,674,546.02 on top of the 815 RM1,607,085.00 already paid.

The additional fees concern the conveyancing work carried out by the legal firm to facilitate the delivery of the title deeds to the 987 settlers, which was to be borne by Mujur Zaman/D3 and Liputan 820 Canggih/D5. The company cannot deny this contractual obligation as confirmed by DW1 (NOP L.349 pg.344, lines 16-31). [5] The claim by the Companies/Ds that they were kept in the dark in the operations of the Co-mingled / Stakeholder’s Account managed by 825 Messrs Abraham Ooi & Partners/D6 is untenable.

5.1 The facts before the court do not support such a claim:

Between early 2013 and late 2015, Chin Chan Leong (CCL) met and discussed with Hadrons/P almost daily the global scheme of 830 arrangement issues and determinations.

In her evidence, DW1 alleged that the Companies/Ds were kept in the dark regarding how the account was operated, except that they could see the substantial payouts. Hence, Suit 352 was filed 835 seeking details (NOP L.347 pg.176, lines 3-4; pg.178, lines 5-6). However, as the facts surfaced during the proceeding, LBCN/D1 discontinued Suit 352 without liberty:

Hadrons/p asserted that they never had control of the said forgoing account.

PW4, in his evidence (NOP L.293 pg10, lines 2-25), explained that before the Settlement Agreement and before the Co-mingled / Stakeholder’s account came into play, some monies that were recovered for Liputan Canggih/D5 and Mujur Zaman/D3 were paid into the Companies respective 845 accounts but were dissipated by Chin Chan Leong (CCL) (NOP L.293 pg.11, lines 1-16).

Mitigating this abuse led to a new arrangement involving setting up the Co-mingled / Stakeholder’s account to manage the funds appropriately.

The Co-mingled / Stakeholder’s account was independently managed by Messrs Abraham Ooi & Partners/D6, the Company's solicitors. Hadrons/P was never a signatory at any point in time.

The Companies/Ds agreed to set up this account as reflected 855 in the Settlement Agreement, which was affirmed by their board resolutions and members' resolutions.

The Companies/Ds agreed to vest Hadrons/P with the sole authority to issue instructions to Messrs Abraham Ooi & Partners/D6 concerning how the funds are to be applied. 860 There is no evidence at all that Hadrons/P had abused that position. The stakeholder would not have complied with Hadrons/P instructions had it been unlawful, wilful, improper, or in excess of its authority.

Messrs Abraham Ooi & Partners/D6 has complete knowledge 865 of the global scheme of arrangement and the role that Hadrons/P played. PW2, in his evidence (NOP L.275 pg.101, lines 10-17), admitted that he was well aware that the estimated fees and performance incentive of RM101.58M were provided for in the Settlement Agreement.

In the circumstances, the Companies/Ds could not possibly, in Suits 215 and 227, regurgitate the claim that they are kept in the dark. It is the position taken by Hadrons/P that the Companies/Ds’ consistent filling of suits was to suit their collateral purpose. 875 Claiming to be kept in the dark merely alleged ignorance of the facts before the Court.

Hadrons/P alluded to the fact that clause 9.1 of the Memorandum of Agreement (L.204 CBD pg.460), declared explicitly by LBCN/D1, 880 gave their undertaking not to initiate any further action against hadrons/P and Messrs Abraham Ooi & Partners/D6 in carrying out the terms of the Federal Court Consent order and the Memorandum of Agreement and any other ancillary agreements. 885

On 09.08.2018, Hadrons/P delivered a detailed summary (L.187 CBD pp.4-6). This August Summary details all the cash proceeds received and distributed. This summary also pointed out that Hadrons/P consulting fees and performance incentives at the time amounting to RM92.58M had already been paid. There were 890 no objections from the Companies/Ds and were not challenged:

PW5 in his evidence (L.206 CBD pg.88-89; NOP L.349/pg.307), SC Chan’s table was prepared according to the August Summary for the Companies/Ds tax submissions. Hadrons/P had assisted the Companies in their tax submissions. His 895 evidence before the Court has never been challenged.

SC Chan’s table reflected Hadrons/P consulting fees and performance incentives at the time, which the companies had declared as expenses (L.206 CBD pg.95). There were no objections or disputes on the issue then. SC Chan did not 900 come forward to offer evidence.

It is irrefutable that Messrs Abraham Ooi & Partners/D6, holding the Co-Mingled / Stakeholder’s account, had consistently updated the Companies/Ds (L.206 CBD pp.145-146. DW1 agreed in her evidence (NOP L.349 pg.329).

To feign ignorance in such circumstances is untenable: PP v Dato’ Sri Mohd Najib bin Abd Razak [2020] 11 MLJ, HC where the High Court observed that: “he suspected the fact; he realised its probability, but he refrained from obtaining the final confirmation because he 910 wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness.” Suit 227 5.2 Responding to the Companies/Ps allegations of breach of fiduciary 915 duties and obligations (paragraph 48, Amended SoC) in Suit 227 by the directors and officers of Hadrons/D1 in a gross overpayment of RM100, 242, 394.74 to the 1st – 3rd defendants:

With no particularity to the general statement, Hadrons/D1 requested further and better particulars on 17.06.2020:

The Companies/Ps failed to respond appropriately but instead particularised the supposed exorbitant and unjustified fees that Hadrons/D1 had paid itself prematurely even before all the creditors were paid from the Co-mingled / Stakeholder’s account: 925

Notwithstanding the said allegations, Hadrons/P asserted that:

That the Companies/Ds had suffered no injury.

(ii) The Companies/Ds had benefitted significantly from Hadrons/P, having achieved its objectives under clause 6 of the CSAA.

(iii) Hadrons/P net recovery had exceeded the 3rd tier structure provided for in the CSAA as explained by PW6 in his evidence.

(iv) From insolvent entities, the Companies/Ds became debt-free entitles with surpluses of approximately RM369m in cash and kind: (L.283 CBD pp.275-284).

If Hadrons/P had indeed breached the CSAA and the Settlement Agreement in prematurely extricating the fees as claimed, then Hadrons/P would not have a significant amount of its fees outstanding today.

(vi) To date, all creditors privy to the global scheme of arrangement 940 have been paid from the account.

The Schedule to the Settlement Agreement explicitly allowed Hadrons/P fees and performance incentives of about RM101.58M to be paid progressively or staggered and not 945 after all the creditors are paid, as suggested.

The issue of impropriety, breach of duty as wilfully claimed by the Companies, did not arise, but it was purely on the computation of the fees and performance incentives:

The Companies/Ps directors offer no evidence on this claim. In the circumstances of the facts as set out in the above paragraphs, indeed, the Companies/Ps must be estopped from denying Hadrons/D1 consulting fees and performance incentives; as pointed out by the previous Judge, the fees and 955 incentives had already been calculated and agreed upon in determining enclosure 5 filed therein.

On the first day of the Suits 215 and 227 trial, the Companies withdrew their plea for fraud and elected to focus solely on the fees which was struck it out with prejudice. 960

In the withdrawal with no liberty of Suit 352, after signing the memorandum of Agreement, LBCN/P1 had alleged that Hadrons had breached their fiduciary duties by enriching themselves. This issue had already been raised then, and res judicata must bar the 965 reopening of this issue in Suit 227. This is evidently an abuse of process.

As the facts had disclosed, the Companies/Ps claim for restitutive reliefs under section 66 of the Contracts Act 1950 and unjust 970 enrichment must surely fail. They have not sought to invalidate or nullify any of the agreements in this case. They did not come with clean hands.

3 The Companies/Ds attempted to rely on an unsigned draft release 975 letter to suggest that Hadrons/P tried to absolve itself from all liabilities by proposing the draft release letter for execution that was handed over to Chin Chan Leong (CCL). Hadrons/P alluded that DW1 was never involved in the negotiations on the draft letter to offer any appropriate evidence on the issue. PW2 confirmed this. Ultimately, the draft letter 980 was aborted and carries no weight in determining these proceedings. In the circumstances, Hadrons/P asks for an order in terms of its prayers in Suit 215 with costs. Suit 227 should be dismissed with costs. 985 The Companies [6] The Companies Submitted on Suits 215 & 227 6.1 Suit 227 by the Companies/P is in the context of (i) a breach of fiduciary duties arising from Hadrons/D1's (ii) unfounded and arbitrary inflation and premature payment of the consultancy fees from the companies. 990 However, the Companies/Ps provided no compelling evidence to support this contention. Hadrons had successfully negated this argument, as seen in their arguments observed in paragraphs 5.2 above. I am not persuaded by the Companies on this assertion.

2 The Companies claimed that they were kept in the dark about managing and operating the Co-mingled/stakeholder account, which, from the facts before me, I find untenable. I have examined Hadrons' rebuttal observed in paragraphs [5] 5.1-5.2 above, and I am unconvinced by the Companies' unfounded allegation. 1000

6.3 Hadrons was alleged:

To unlawfully inflate their fee for the work done by instructing the stakeholder Messrs Abraham Ooi & Partners/D6 to make such payments, breaching the terms of the CSAA. 1005

However, as cogently rebutted by Hadrons observed in paragraph 5.2 above, it was already included in the Schedule to the Settlement Agreement executed by the parties, which renders this allegation baseless.

For ulterior purposes, the Companies have elected to misinterpret 1010 the facts to misdirect. The facts before the Court do not support such unfounded allegations, nor does it suggest as such. The Federal Court, in a case on section 540 Companies Act 2016 on fraudulent trading, advocated the general principle in contract law in Lai Lee & Anor v Wong Yu Vee & Ors [2023] MLRA 495, FC 1015 where it cited, approved and followed Lord Kerr in the English Supreme Court observation Takhar v Gracefield Developments Ltd & Ors [2019] UKSC 13; [2020] EWHC 2791 that supported the principle that:

The law did not expect people to arrange their affairs because 1020 others might commit fraud, which was not inconsistent with the principle of free consent under the Contracts Act 1950.

Parties entering into a contract whilst accepting the risks and omissions in the preceding negotiations would assume the honesty and good faith of the other. 1025

As such, contracts entered into were presumed to be valid and enforceable.

Indeed, parties engaged in negotiations to enter into a commercial contract conducted themselves on the expectation of honesty, good faith, and fair dealing. 1030

That was the contractual bargain that parties bound themselves to, and they cannot renege from it. I find no ambiguity in the provisions that the parties had voluntarily executed. 1035 6.4 The Companies submitted at length on Hadron contractual fees and performance incentives, giving it their distorted interpretation of their version in the context of recovery and total payout. Based on the evidence at the trial, I am unconvinced with their argument. It distorts the factual interpretation of the relevant clauses on the issue in CSAA 1040 (clause 8) and the schedule of the Settlement Agreement. I find Hadron's arguments on the issue, as observed in paragraphs 4.6-4.9 above, compelling in negating the Companies' position.

6.5 Similarly, the Companies attempted to misdirect the Court on the 1045 payment issue of RM100+M under the K&A agreement, with no compelling evidence except for a misconceived interpretation of the facts to support their arguments. I observed the facts as seen in paragraphs 4.8-4.9 above. There is simply no cogent evidence produced by the Companies save for their over-extending arguments 1050 to distort the issue.

6.6 The Companies also submitted at length on the issue of the omitted settlers' settlement (RM30m) and the settlers' community hall (RM3.5m) that the Companies had failed to deliver. However, I find that 1055 the facts before the Court at the trial do not support those skewed arguments. Hadrons negated them, as I observed in paragraph 4.11 on the omitted settlers' settlement and paragraph 4.4(5) on the community hall reflected in the Memorandum of Agreement. 1060 6.7 The Companies argued that Liputan Canggih/D5 recovery should have been excluded from Hadrons' recovery and payout computation. However, their arguments are unconvincing and lack a sustainable factual foundation other than their skewed and misconceived interpretations. The position that I accept is what I observed in 1065 paragraph 4.7 above. Obviously, from all these arguments by the Companies, it would be safe to infer the degree to which these Companies collectively, after being saved from serious financial distress and a host of legal challenges, endeavour to attack and reduce Hadron's contractually agreed fees and performance incentives as 1070 found in clause 8 of the CSAA and the Schedule to the Settlement Agreement. Indeed, as the Federal Court pointed out in Lai Lee & Anor v Wong Yu Vee & Ors [2023] MLRA 495, FC, the law presupposes that parties who negotiate a commercial contract conduct themselves on the expectation of honesty, good faith, and fair dealing. 1075 This is to honour the concluded bargain between the parties rather than to renege on it wilfully.

6.8 The Companies also argued:

That since the CSAA had been duly ended with Hadrons having 1080 achieved its objectives contemplated therein with the Companies having benefitted from the implementation of the global scheme of arrangement with the white knight (Paragon Pinnacle Sdn Bhd), saving them from financial distress, there was no reason for Hadrons to retain RM3M in the Stakeholder’s account as security 1085 to indemnify Hadrons from any potential liability for two years in carrying out their duties under the CSAA and the Memorandum of Agreement in particular Suits 532 (withdrawn) and 534 (ongoing), arguing that prospective contractual obligations are discharged upon the lawful termination of a contract: Chung Vui Kong v 1090 K.K.I.P Sdn Bhd [2020] MLJU 603, CA.

I find this argument using English common law position disregarding sections 77 (Contracts of Indemnity) and 78 (Rights of indemnity holder when sued) of the Contracts Act 1950 on the legal issue of indemnity to be misleading: 1095 s.77: A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person is called a "contract of indemnity". s.78: The promisee in the contract of indemnity, acting within the scope of 1100 his authority, is entitled to recover from the promisor:

all damages which he may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies;

all costs which he may be compelled to pay in any such suit if, in bringing or defending it, he did not contravene the orders of 1105 the promisor and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the promisor authorised him to bring or defend the suit; and

all sums which he may have paid under the terms of any compromise of any such suit if the compromise was not contrary 1110 to the orders of the promisor and was one which it would have been prudent for the promisee to make in the absence of any contract of indemnity, or if the promisor authorised him to compromise the suit. 1115

As rightly pointed out by Hadrons, the obligations to indemnify Hadrons for such a purpose can be found not only in clause 11 of the CSAA but also in clause 9 of the Memorandum of Agreement that binds the Companies.

These arguments by the Companies that can’t hold in light of the 1120 statutory provisions. [7] On the allegation of breach of fiduciary duties, the Companies argued that Hadrons was their fiduciary who had absolute control over the co-mingled / stakeholder account and had acted in violation of the 1125 entrusted obligations. Hadrons had appropriately negated this unfounded allegation, as I observed in paragraphs [5] 5.1-52 above. This argument is based on the facts that do not support the Company's allegations. To recapitulate:

This allegation is res judicata. 1130

The Companies confirmed in writing that Hadrons has achieved its contractual objectives.

The Companies have never alleged that Hadrons had made unlawful payments and tender no evidence in support.

There is no cogent or tangible evidence of a breach of duty 1135 (contractual or fiduciary).

Before the previous Judge, the Companies had declared that they were withdrawing the claim on breach of fiduciary duty and elected to focus on the alleged extravagant fees only, which the said learned Judge allowed the withdrawal with prejudice. It is 1140 undoubtedly not a pleaded case in the circumstances.

There is simply no compelling evidence of the abuse in the computation of the fees.

The Companies' claim that Hadrons had diverted sales proceeds to pay for the contra properties is not a pleaded case either. The 1145 law is trite on unpleaded cases.

Hadron's acceptance of part payment of outstanding fees in kind (the contra properties) and together with cash cannot be tantamount to a variation of the fees due and payable.

Any purported allegations of secret profits and unjust enrichment 1150 are barred by res judicata.

No evidence exists that the Companies pleaded to the allegation that Hadrons prematurely paid its fees. Grounded on these fundamentally negated arguments, the Companies 1155 asked that Hadrons Suit 215 be dismissed with costs and their Suit 227 be allowed with costs instead. THE LAW [8] In a nutshell: 1160 Legal Burden 8.1 It is trite in law that all cases are decided on the legal burden of proof being discharged.

8.2 The burden of proof in establishing a case is on the plaintiff. It is not the defendant’s duty to disprove it. The evidentiary burden is trite that 1165 those who allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950).

8.3 Selvaduray v Chinniah [1939] 1 MLJ 253, 254, CA held: "The burden of proof under section 102 of the Evidence Enactment is upon the 1170 person who would fail if no evidence at all were given on either side, and accordingly, the plaintiff must establish his case. If he fails to do so, it will not avail him to turn around and say that the defendant has not established his. The defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours". 1175

8.4 Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC held: "It was all a matter of proof, and until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift 1180 to the defendant. Even if the defendant's case was completely unbelievable, the claim against him must, in these circumstances, be dismissed. With respect, we agree with this judicial approach." Contractual Breach 1185 [9] Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. The distilled principles, among others, are:

Where an agreement is not regulated by statute, parties are at complete liberty, under the doctrine of freedom of Contract, to agree on any terms they think fit. 1190

The court's role is to interpret the Contract sensibly (a commercially sensible construction). See Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC.

The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the 1195 innocent party and who is the guilty party.

A contract breaker must pay damages to the innocent party.

The FC cited Attorney General of Belize v. Belize Telecom Limited [2009] UKPC 11, where when delivering the Advice of the Board, Lord Hoffmann said: 1200 “The Court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute, or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have 1205 intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning 1210 which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument.”

9.1 A contract is to be interpreted under the following guidelines:

A Court interpreting a private contract is not confined to the four 1215 corners of the document. It is entitled to look at the factual matrix forming the background of the transaction.

The factual matrix of the transaction's background includes all material reasonably available to the parties.

The interpreting Court must disregard any part of the background 1220 declaratory of subjective intent only.

The Court should adopt an objective approach when interpreting a private contract.

9.2 The Federal Court in Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC observed that the principles of 1225 construction to be applied are that the parties' intentions are gathered from the language used. They are presumed to have intended what they say. The common universal principle is that an agreement ought to receive that construction, which its language will admit, that will best effectuate the parties' intention to be collected from the whole 1230 arrangement. The Courts are to give effect to the terms of the Contract (if any). [13] FINDINGS

13.1 I have examined all-cause papers, the evidence and the parties' submissions. Considering my observation in the totality of the 1235 evidence, in particular my observation in paragraphs [2], [4], [5], [6] and [7] with the parties' respective arguments, it is my finding on the balance of probabilities that:

Hadrons/P has discharged their burden, and final judgment is entered with costs favouring them in Suit 215 against the 1240 Companies/Ds.

The Companies/Ps failed to discharge their burden, and Suit 227 against Hadrons/D1 and others is dismissed with cost.

13.2 In examining and considering the evidence by the parties herein, I am guided by the Federal Court in Berjaya Times Square Sdn Bhd v 1245 M-Concept Sdn Bhd [2010] 1 CLJ 269, FC, that observed:

The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. In coming to this determination, a Court interpreting is entitled to look at the factual 1250 matrix forming the background of the transaction. The factual matrix of the transaction's background includes all material reasonably available to the parties.

A breach of Contract occurs when a party to a Contract expressly or impliedly fails or refuses to perform or fails to perform 1255 satisfactorily one or more of his obligations.

In this context:

Looking into the Common Bundles of Documents, all evidence adduced at trial, and all respective arguments by the parties. I find 1260 no hesitation in holding that the Companies/Ds are in breach of the CSAA and the Memorandum of Agreement when they reneged and intentionally failed to honour their part of the bargain concerning the agreed Hadrons/P professional fees and performance incentives as envisaged in the said agreements. 1265

The Companies/Ds' do not provide any legal foundation to support the Companies' defences and/or their claim in Suit 227.

13.3 Looking at the facts and background of the present case, I am guided by the Court of Appeal in Guan Teik Sdn Bhd v Hj Mohd Noor bin 1270 Hj Yakob & Ors [2000] 4 MLJ 433, CA in observing that the Court must not only weigh such evidence on a balance of probabilities but must also consider the surrounding circumstances and evaluate contemporary documents that may tend to establish the truth or otherwise of a given fact. In addition to my overall observation of the 1275 paragraphs [2], [4], [5], [6] and [7], I find that:

There is compelling evidence from DW1, PW4, PW5, and PW6 that Hadron’s fees and performance incentives were duly discussed and agreed upon. 1280

I take cognisance that DW1 could only offer indirect evidence for the companies that would principally amount to hearsay as she was not involved directly had no personal knowledge of them. I noticed that the person who could offer direct evidence with direct personal knowledge of pertinent events for the companies was not 1285 called with no valid reason/s.

I also take cognisance:

The companies had withdrawn all their allegation of impropriety at the trial and only pursued the dispute 1290 concerning the impugned fees.

I agree with Hadrons that it was a misleading claim from the outset, as no evidence to support such allegations had been produced at any stage of the proceedings.

This kind of conduct that misdirects the court does not augur 1295 well for the company's conduct in these proceedings concerning the legal basis of their claim in this suit 227. It neither supports nor provides the legal basis for their claim to lift the veil of incorporation. 1300

The methodology:

Computing the consulting fees and performance incentives were mutually entrenched in the CSAA (L.204 CBD pp.4-9), and the schedule to the Settlement Agreement (L.204 CBD, pp.352- 372). 1305

The validity of these two contractual agreements is not refuted, and there are no compelling materials to say otherwise.

It is for the Court to give effect to their agreed terms. The Federal Court in Michael C. Solle v United Malayan 1310 Banking Corporation [1986] 1 MLJ 45, FC that the principles of construction to be applied are that the parties' intentions are gathered from the language used. They are presumed to have intended what they say. The common universal principle is that an agreement ought to receive that 1315 construction, which its language will admit, that will best effectuate the parties' intention to be collected from the whole arrangement. The Courts are to give effect to the terms of the Contract (if any).

Throughout the contractual period, if they disagreed, the 1320 companies never saw it fit to object to it. To object now after Hadrons Consulting had delivered its part of the bargain reflects clear afterthoughts on the issue.

The companies' manipulation to deny or reduce the fees and 1325 performance incentives in several proceedings is evident; as Hadrons argued, it was to circumvent res judicata and issue estoppel.

The denial by Liputan Canggih/D5 of Hadrons services is 1330 untenable:

If Liputan Canggih/D5 had not wanted to be part of Hadrons's Global Scheme of Arrangement, it should have refused participation.

The scheme of arrangement is not intended as a gratuitous 1335 act. The law is trite that if a lawful act was carried out non-gratuitously, the receiving party that benefitted is bound to make compensation, save where there is clear evidence that the party had objected to its participation.

Liputan Canggih/D5 had benefited, and to argue otherwise is 1340 untenable. In any event, there is evidence that LCSB had agreed to the arrangement, as confirmed by DW1 in her evidence.

Ample evidence had been tendered to establish that Hadrons had rendered its service in agreement with the Liquidator of 1345 Liputan Canggih/D5 and subsequently by the board.

The argument by the Companies on:

The position on the Ringgit Exotika Sdn Bhd’s land is similarly untenable. 1350

Hadrons had successfully negotiated the revocation of the acquisition proceedings with the State Government, which subsequently revoked its acquisition proceedings.

The Ringgit Exotika Sdn Bhd’s land was still encumbered with unsettled contractual obligations to the Rancangan Revolusi 1355 Hijau Settlers.

It formed part of the scheme of arrangement expressed in the Federal Consent Order.

After financially benefitting from the Hadron global scheme of arrangement: 1360

Involving the white knight (Paragon Pinnacle Sdn Bhd, a subsidiary of ECO-World Development Group, with EPF as a substantial shareholder).

(ii) That agreed to buy over all the impugned Ijok lands for RM1.18B. 1365

(iii) With an undertaking to deliver the contractual promises to 987 Rancangan Revolusi Hijau settlers that the Companies/Ds defaulted for over twenty years.

(iv) They cannot come and claim that they were not part of the scheme of arrangement as sealed by the Federal 1370 Court Order.

It is untenable in light of the evidence at the trial that the companies alleged that they were kept in the dark. The facts before the court do not support such an assertion. There is no 1375 evidence before the court that they had ever requested clarification or further information. It does not support the party being kept in the dark assertion. Evidence from Abraham Ooi & Partners, their solicitor on record, amongst others, shows that they regularly updated the companies. 1380

I disagree that Hadrons breached CSAA clause 8 and the Schedule to the Memorandum of Agreement on the computation of fees and performance incentives, as alleged by the Companies. There is no evidence to support the company's assertions. The facts before the court do not support that argument. 1385 [14] It is trite in law:

That all cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case. The Federal Court in Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC ruled 1390 that it was all a matter of proof and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant.

In light of the preceding legal position and the materials before me, 1395 I find that there are no merits or legal foundation in the company’s arguments for suit 227. That was the bargain they struck with Hadrons in the CSAA and the Memorandum of Agreement. Parties are bound to the agreed terms and conditions, and the court will not allow them to renege from their part of the bargain 1400 by making unfounded allegations. [15] CONCLUSION

15.1 All things considered:

A final Judgment is entered for Hadrons/P in Suit 215, against the 1405 Companies/Ds and it is hereby ordered as follows:

Hadrons Consulting is entitled to the following:

Outstanding cash of RM26,287,971.75 and

(ii) Payment kind via contra property at The Stride Office at Bukit Bintang City Centre, KL: Unit No: D3-09-01. 1410

Reimbursement of the cash amount of RM599,488 under the fee structure and indemnity provisions in the CSAA, the Settlement Agreement, and Further variation to the Memorandum of Agreement dated 19.9.2019. 1415

Hadrons Consulting is entitled to be indemnified for all costs and expenses arising from the Shah Alam High Court Suit No: BA-22NCVC-534-10/2018 (Suit 534).

The firm of Messrs Abraham Ooi & Partners:

Within seven days from the date hereof, release the 1420 payment of RM26 887,459.75 to Hadron Consulting (outstanding fees in cash and reimbursement).

(ii) Within seven days from the date hereof, make payment of interest at the rate of 5% per annum on the sum of RM26,887,459.75 and the sum of RM5,000,000 1425 (outstanding fees in kind) calculated from 25.2.2020 until the date of full realisation.

(iii) The said legal firm shall retain RM3,000,000 in the Stakeholder’s Account / Co-Mingled Accounts held by them for two years until the final disposal of Suit 534 to 1430 defray and indemnify Hadrons Consulting arising out of Suit 534.

(iv) The said legal firm shall carry out all outstanding instructions which had not been carried out as per the letter of instructions from Hadrons to them dated 1435 24.2.2020.

The said legal firm shall account for all monies paid into and out of the Stakeholder’s Account / Co-Mingled Accounts from 24.2.2020 until the final determination of this suit. 1440

The companies in the Settlement Agreement, which includes LBCN/D1, Mujur Zaman/D3, and Liputan Canggih/D5, are hereby refrained from interfering with Messrs Abraham Ooi & Partners from carrying out their duties as stakeholders of the Stakeholders Account / Co-Mingled Accounts under the said 1445 Settlement Agreement.

Hadrons Consulting is hereby given the liberty to apply for consequential orders to compel compliance with all orders made herein.

Costs against the Companies/Ds payable to Hadrons/P. 1450

In light of the foregoing, I find no merits in fact or law in suit 227, that are sustainable against the defendants it is dismissed with costs.

A global cost of RM250,000.00 for Suit 215, Suit 227, including interlocutory applications in L11 in Suit 215, to be paid by the 1455 Companies within sixty (60) days from the date of this order subject to allocator. Dated 19.03.2025 1460 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA 1465 WILAYAH PERSEKUTUAN KUALA LUMPUR 1470 Parties: Karen Lee Foong Voon together with Ho Zhi Yee Messrs. Wong Kian Kheong for the Plaintif (Suit 215) and Defendants (Suit 227) 1475 Alex De Silva together with Joshua Lawson Cowie Messrs De Silva. for the Defendants (Suit 215) and Plaintiffs (Suit 227) 1480