Ho Hup Construction Company Bhd v Zen Courts Sdn Bhd & Others (WA-22NCC-103-03/2017)

ZEN COURTS SDN BHD

LYE EK SEANG

LIM EU BENG, JULIAN

LEONG MUN SEAN

RASPHAL SINGH A/L JESWANT SINGH

GOIK KENZIN

YEOH KENG TAT (NRIZ NO: 701002-08-6269) ... DEFENDAN-DEFENDAN BEFORE YANG ARIF MOHD NAZLAN MOHD GHAZALI JUDGE JUDGMENT Introduction [1] The underlying action in the instant proceeding is a writ action filed by the plaintiff, among others, primarily for damages for Page 2 of 39 alleged breaches of fiduciary duties and dishonest assistance against the defendants. The defendants in response instituted the instant four separate striking out applications against the writ and the statement of claim of the plaintiff. [2] These striking out applications were heard together and at the conclusion of the hearing, I allowed all four applications, highlighted the principal reasons for my decision, and struck out the claim of the plaintiff. This judgment contains the full reasons for my decision. Key Background Facts [3] There is a long history to the dispute involving the parties. Some of the litigation proceedings have been reported. The crux of this present round of litigation now sought to be struck out by the defendants may be broadly described as a two-pronged attack by the plaintiff against the defendants. [4] The first alleges that the second defendant, being the former deputy executive chairman of the plaintiff listed company, had breached his fiduciary duties which resulted in the plaintiff being deprived of its entitlement to a 30% equity stake in Bukit Jalil Development Sdn Bhd (“Bukit Jalil”). [5] The second essentially concerns the claim that other defendants, namely the first defendant company, as the party which got to acquire the 30% equity in Bukit Jalil, and the third, fourth, fifth, sixth and seventh defendants, being the directors and shareholders of the first defendant at the relevant time, had conspired with the second defendant and dishonestly assisted the breaches committed by him. [6] A little bit of background on the disputed 30% stake in Bukit Jalil is apposite. In essence, Bukit Jalil is the joint venture company incorporated by the plaintiff and UEM Group Berhad (“UEM”), governed by a joint venture agreement between the two dated 12 September

The shareholdings in the joint venture were in the proportion of 70% held by the plaintiff, and 30% by UEM. Under the joint venture agreement, each party had the right of first refusal to purchase the shares in Bukit Jalil held by the other party. [7] In 2008, UEM expressed the wish to sell its 30% holding, and in accordance with the pre-emption/first refusal right, UEM therefore offered the same to the plaintiff on 5 November 2008 Page 3 of 39 for RM4.5 million. At that juncture, however, the plaintiff was in financial difficulties and had already been designated as a PN17 company by Bursa Malaysia. The plaintiff thus instead asked that the price be reduced to RM2.5 million. [8] Much was alleged to have transpired in the negotiations and behind the scenes in the plaintiff company, particularly on the roles played by the relevant defendants, whereby in the end, the plaintiff decided not to exercise its pre-emption right and instead consented to the 30% stake being sold to the first defendant pursuant to a sale and purchase agreement dated 28 September 2009 for RM4.5 million. And this set the backdrop of the present dispute. [9] In relation to the principal allegation being levelled against the second defendant for breach of fiduciary duties, the key pleadings alleged that first, the second defendant had made representations at various meetings of the board of directors of the plaintiff of which he was then a member that the plaintiff was financially unable to buy the 30% stake; secondly, he did not disclose to the Board the various correspondences between the plaintiff (as represented by the second defendant himself) and UEM on the negotiations for the 30% stake; and thirdly, that the second defendant was the alter ego of the first defendant, but information about this alleged interest had been concealed from the board of the plaintiff. [10] As mentioned earlier, it was also claimed that the second defendant conspired with the other defendants, allegedly acting under his instructions to mislead the plaintiff company to not only not exercise its first right of refusal and pre-emption rights to purchase the 30% stake in Bukit Jalil from UEM; but also to consent to UEM’s sale of the said 30% stake to the first defendant company. Essence of Contentions of the Parties [11] The defendants have now filed separate notices of applications to strike out the writ action instituted by the plaintiff. All are resisted by the plaintiff. The first, sixth and seventh defendants filed enclosure 20, the second defendant filed enclosure 16, the third and fourth defendants enclosure 12, and the fifth defendant, enclosure 15. All applications are focused on the singular attempt to strike out the claim of the plaintiff, and rely on substantially the same grounds. Page 4 of 39 [12] The principal arguments advanced by the defendants to justify their striking out application are first, that the plaintiff should be estopped from raising issues in this claim which had been, or ought to have been raised in previous litigation; and secondly the present claim is an abuse of process since it seeks to impeach and collaterally attack an earlier decision of the Court. [13] Further, the third and fourth defendants additionally contend that the plaintiff’s claim against them is time barred under the Limitation Act 1953 since the pleaded case against the third and fourth defendants concern events which occurred more than six years prior to the commencement of the writ action by the plaintiff on 24 March 2017. [14] The fifth defendant’s application is premised singly on the assertion that the statement of claim is defective for lack of particularisation that does not disclose a reasonable cause of action against the fifth defendant. However, at the hearing of all the applications, counsel for all seven defendants, including the fifth defendant, also expressed their reliance on the oral submissions made by the learned lead counsel for the second defendant. [15] I will next deal with the issues raised by the defendants and the responses proffered by the plaintiff in its opposition to the applications in my analysis of the same below. Before I examine the arguments and the affidavit evidence made available, I must first refer briefly to the law governing striking out applications relevant to the instant case. The Law on Striking Out – A summary [16] The starting point of reference must be Order 18 r 19(1) of the Rules of Court 2012 (“RC 2012”) which reads as follows:- "19. Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be." [17] The fifth defendant in the instant case relies on limb (a), and all defendants premise their applications on limbs (b) and (d). Thus they argued that the writ action commenced by the plaintiff disclosed no reasonable cause of action, was frivolous, vexatious and otherwise tantamount to an abuse of Court process. [18] The leading authority on Order 18 r 19(1) is the Supreme Court decision in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, and in particular, the following part of the judgment of Mohamed Dzaiddin SCJ (later Chief Justice):- "The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in pari materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable". [19] It is therefore well established that the power of the Court to strike out under the four grounds of Order 18 r 19(1) is to be exercised when it can clearly be determined that a claim or answer is prime facie obviously unsustainable (see also the Court of Appeal decision of Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] 4 MLJ 520). It is also only to be invoked sparingly (see Affin Bank Bhd v. Eye Bee Sdn Bhd [2005] 7 MLJ 1). Page 6 of 39 [20] It is also well settled that as for limb (a), examination could only be made of the pleadings, not the affidavits evidence, but where the application is premised on more than one ground under Order 18 r 19(1), like in the present case, the Court should ignore the affidavits affirmed in relation to the other grounds when dealing with limb (a) which ought to be considered first, before examining the affidavit evidence under the other limbs (see See Thong & Anor v Saw Beng Chong [2013] 3 AMR 385). However, in the instant case, only the fifth defendant is relying on limb (a). [21] The Court is permitted, in an application other than under limb (a) (on the ground of no reasonable cause of action) to examine the affidavit evidence instead of merely the pleadings in the statement of claim of the plaintiff (see Pengiran Othman Shah Bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd & Ors [1996] 1 MLJ 309), and where necessary scrutinise them with a fine tooth comb (see Tractors Malaysia Bhd v Tio Chee Hing [1957] 2 MLJ 1). [22] It could also be said that as for limb (b), the test is the same consideration on the claim being obviously unsustainable and that for limb (d), it arises when the process of the Court is not used in a bona fide manner and has been abused (see the Court of Appeal decision in Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192) and the said claim must also be proven to be obviously unsustainable (see another Court of Appeal decision of Zainal Abidin bin Hamid @ S. Maniam v Kerajaan Malaysia [2009] 6 MLJ 863). [23] It is equally clear as it is practical that the situations that could fall within the categories under limb (d) are never closed given the variety of circumstances arising from the facts of each particular case. The categories of cases where the process of the Court could be abused are varied as they are numerous. They are non-exhaustive (see Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637). [24] And, as established by the Supreme Court in Raja Zainal Abidin bin Raja Haji Tachik v British-American Life & General Insurance Bhd [1993] 3 MLJ 16, the Courts have the inherent jurisdiction to prevent an abuse of its process. Page 7 of 39 [25] Given the nature and context of the instant striking out application which underlying issues also concern proceedings premised on rules of company law, a reference to the following passage from the Court of Appeal decision in Tuan Haji Ishak bin Ismail v Leong Hup Holdings Bhd and other appeals [1996] 1 MLJ 661, on a striking out application made under Order 18 r 19 of the former Rules of High Court 1980, is both apt and instructive:- “The words 'plain and obvious' also need clarification. This case involved complex questions of company law. What may be 'plain and obvious' to a specialist in this field may not be so to another who does not have this specialized knowledge. I therefore feel obliged to state that the standard here is an objective one and implies that the perception required here is that of a person who has the required expertise. Support for this view can be found in McKay v Essex Area Health Authority [1982] 2 All ER 771, where it was held that the right course was for the court to strike out a claim, even though it required a long and elaborate hearing before the court was satisfied that there was no cause of action, because the plaintiff was entitled to be relieved of the objection to meet it. And in Re Saul D Harrison & Sons (1994) BCC 162 at p 179 where Hoffman LJ said: “But the question in this case is whether on the evidence taken as a whole and assuming in favour of the petitioner any disputed questions of primary fact, there is any case to answer. Of course it is always possible that discovery and cross examination may produce some written or oral confession that the board were indeed acting in bad faith. But I do not think that the petition can be allowed to proceed to trial simply in the hope that something may turn up”” [26] For completeness, I should add that a strike out request under Order 92 r 4 on the inherent jurisdiction of the Court on the ground of abuse of process can also be justified on considerations of public policy and interest of justice (see the Federal Court decision in Boo Are Ngo v. Chua Mee Liang [2009] 2 MLRA 579). Evaluation & Findings of this Court The issues now pleaded have been raised (and some adjudicated on) or could have been raised in earlier proceedings [27] Two points must be made. First, when the argument is made that a matter has been litigated previously between parties and a re-Page 8 of 39 litigation ought thus to be rejected, case-law authorities have held that regard ought to be had to the history of the litigation involving the said same parties. Thus in Chung Khiaw Bank (Malaysia) Berhad v Tio Chee Hing [2004] 3 CLJ 59, the Court of Appeal held as follows:- “…..where an abuse of process is alleged in reliance upon or in relation to any previous litigation between the parties or their privies, it is the duty of the court to undertake a minute examination of the history of the prior litigation.” [28] This is settled law, and follows earlier authorities such as the Privy Council decision in Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1 and the Supreme Court decision in Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16. [29] The second point is that in the instant case, it cannot be denied, and the plaintiff is not disputing this – there are indeed, as averred by the affidavit in support of the application by the second defendant for instance, a number of proceedings that have taken place and concluded involving the parties. For proper context and better appreciation, these litigation should be mentioned, albeit in summary fashion. Kuala Lumpur High Court Suit No. S-22-525-2009 (“Suit 525”) [30] In Suit 525, a former managing director of the plaintiff commenced a derivative action in July 2009 against the plaintiff company’s entire board of directors, which included the second defendant herein, for the principal relief of a declaration that they had acted in breach of their fiduciary duties in discontinuing the plaintiff’s involvement in an arbitration proceedings against the Government of Madagascar in the International Court of Arbitration of the International Chamber of Commerce in Paris. This concerned a dispute over road construction contracts entered into with the Government of Madagascar in 2004. The board of the plaintiff had resolved not to pursue the arbitration which also involved a counterclaim by the Government of Madagascar for an amount of damages more than the plaintiff’s claim amount. The board had also subsequently ratified the plaintiff’s entry into a settlement agreement to resolve the dispute. Page 9 of 39 [31] Suit 525 was dismissed but the matter is now pending hearing for leave to appeal to the Federal Court. Kuala Lumpur High Court Suit No. D22NCC-146-2010 (“Suit 146”) [32] In Suit 146, Extreme System Sdn Bhd (a company in which the second defendant has an indirect interest) commenced an action against the plaintiff in its capacity as a shareholder of the plaintiff. Extreme System also named 29 other shareholders of the plaintiff as defendants, primarily seeking a declaration that these shareholders were parties acting in concert in the acquisition of control of the plaintiff without making a mandatory general offer in violation of the securities laws. [33] In reply, five of the defendant shareholders filed a counterclaim against Extreme System and 17 other shareholders of the plaintiff, including the second defendant herein, claiming instead that it was Extreme System and the 17 shareholders who were the parties acting in concert in the acquisition of control of the plaintiff. However, Suit 146 was settled, and all claims and counterclaim were withdrawn. Kuala Lumpur High Court Suit No. D-22NCC-792-2010 (“Suit 792”) [34] In Suit 792, the plaintiff herein sued the joint venture company, Bukit Jalil and 10 others, including the second defendant, principally for a declaration that the Joint Development Agreement dated 16 March 2010 entered into between Bukit Jalil and Pioneer Haven Sdn Bhd for the development of Bukit Jalil’s 60-acre land was void. [35] Significantly, in this Suit 792, the plaintiff pleaded the allegation of breach of fiduciary duties and conspiracy against the second defendant herein and its other directors, which are similar to the averments now pleaded in paragraphs 21.3 and 21.4 of the statement of claim of the plaintiff in the instant case. Additionally, the allegation in the instant case that the first defendant company was connected with and aligned to the second defendant herein and certain other directors of the plaintiff company had also already been previously made by the plaintiff in Suit 792. [36] The Court of Appeal in Suit 792 reversed the decision of the trial court on 20 December 2011 and ruled the Joint Development Agreement to be valid. Page 10 of 39 Kuala Lumpur High Court Suit No. D-22NCC-1745-2010 (“Suit 1745”) [37] In Suit 1745, the plaintiff in September 2010 sued the second defendant herein and a couple of others for a refund of compensation paid by the plaintiff to them for termination of their offices. The basis for the claim for refund concerned among others, breach of fiduciary duties, fraud and conspiracy. Kuala Lumpur High Court Petition No. 26NCC-42-2011 (“the Oppression Action”) [38] This is key. The first defendant herein, as the minority shareholder of Bukit Jalil, post the purchase of the 30% stake from UEM, instituted an oppression petition under Section 181 of the Companies Act 1965 against the majority, being the plaintiff herein. [39] The High Court found there was oppression by the plaintiff and gave judgment for the first defendant in the Oppression Action. This decision of 27 March 2012 was not appealed against by either of the parties. For present purposes it is also pertinent to emphasise that the reliefs granted by the Court included primarily the order for the plaintiff to buy out the entire of the first defendant’s 30% shareholding in Bukit Jalil (“the Buy-Out Order”). It is thus final and binding, a point of great significance in my analysis of the instant applications. [40] The dispute between the parties then took a turn on the valuation of the shares subject to the But-Out Order. Disagreement arose in respect of the valuation report, prepared by the jointly appointed Ferrier Hodgson MH Sdn Bhd. The first defendant applied to make representations on the valuation report and to call expert witness, whilst the plaintiff applied for the Court to determine the final value for the buy-out of the shares on the basis of the valuation report. [41] The High Court on 18 July 2013 refused the first defendant’s requests and allowed the plaintiff’s. The price was therefore fixed and the buy-out directed to be completed within four months of this order of the Court. The four months passed and the buy-out still unresolved, the plaintiff moved to obtain leave to commence committal proceedings against the directors of the first defendant, which was granted on 4 December 2013. A committal application was filed five days later. Page 11 of 39 [42] The first defendant’s appeals against the refusal to allow the first defendant calling an expert to examine the valuation report and against the order on the final valuation and buy-out dead-line were both dismissed by the Court of Appeal on 19 February 2014. [43] The plaintiff pushed further and secured an order to compel the buy-out on 25 February 2014, as a result of which the transfer of the first defendant’s shares to the plaintiff was then compulsorily effected. [44] In the meantime, an important development unfolded. The first defendant’s further appeal to the Federal Court bore fruition. The apex Court allowed the appeals and thus granted the first defendant’s application to cross examine expert witness on the valuation report and set aside the order which fixed the purchase price and the timeline for completion of the buy-out. The Federal Court decision was pronounced on 26 April 2016. [45] Pending the cross-examination on the valuation report pursuant to the decision of the Federal Court, the plaintiff filed the instant writ action in March 2017. [46] It needs no strong reminding that the thrust of the allegation in the present round of litigation by the plaintiff against the second defendant is that the latter had in breach of his fiduciary duties to the plaintiff company, diverted the entitlement of the plaintiff to the 30% stake sold by UEM to the first defendant who is said to be controlled by the second defendant. And the other defendants dishonestly assisted the second defendant in this conspiracy. [47] In other words, this latest dispute now seems to revolve around the purchase of the 30% by the first defendant from UEM as allegedly orchestrated by the second defendant in breach of his fiduciary duties towards the plaintiff, as unlawfully assisted by the other defendants. [48] In my evaluation, given the history of previous litigation, the issues pleaded by the plaintiff in its statement of claim which underpin the present dispute are for all intents and purposes everything but new. These are familiar issues. They have been ventilated before. Even if they were not, the issues ought to have been raised by the plaintiff in the slew of Court proceedings involving the various disputes between the plaintiff and particularly the second defendant as summarised earlier. Page 12 of 39 [49] A similar issue had been ventilated in Suit 792. As stated earlier, in Suit 792, in seeking a declaration that the said Joint Development Agreement between Bukit Jalil and Pioneer Haven Sdn Bhd for the development of Bukit Jalil’s 60-acre land was void, the suit taken by the plaintiff against the second defendant, other directors of the plaintiff and Pioneer Haven alleged the defendants of breaches of fiduciary duties and conspiracy. For example, in paragraph 24.1 of the statement of claim of the plaintiff in Suit 792, it was stated:- “24.1 The 2nd to 8th Defendants [the second defendant herein was the second defendant therein] had breached their statutory and fiduciary duties, and duties at common law, to HHCC [the plaintiff herein] for their having agreed to BJDSB agreeing to enter into the JDA without prior approval of HHCC in general meeting. In doing so, the 2nd to 8th Defendants have acted ultra vires their powers; and….” [50] It is no denying that the background to the allegation of breach of fiduciary duties in Suit 792 is not exactly the same as the one now before me. There, it was the contention on the absence of shareholders’ approval in a general meeting. Here, it is the loss of the plaintiff’s entitlement to the 30% stake to the first defendant. But the nature of the plaintiff’s allegation of breach of fiduciary duties against its directors, the second defendant in particular, is not dissimilar. [51] And this is especially pertinent since the purchase by the first defendant of the 30% stake was pursuant to the Sale and Purchase Agreement dated 28 September 2009 which was well before the institution of Suit 792. Indeed, in the written submission for the plaintiff in Suit 792, it had already been asserted by the plaintiff that the first defendant company was aligned to the second defendant. This clearly shows that certain of the allegations in the present suit had even been raised in the earlier proceedings. [52] Of greater significance is the fact that all minutes of the meetings of the board and all correspondence referred to in the statement of claim of the plaintiff in the present suit, which are now intended by the plaintiff to demonstrate that the defendants had allegedly conspired to misrepresent the true position of the offer of the 30% stake by UEM, and to conceal the second defendant’s interest in the first defendant, had unmistakably already been made available before the Court previously, in none other than in Suit 792 itself, in the form of a specific document entitled the Chronology of Main Events dated 27 May Page 13 of 39 2011, and prepared by the solicitors for the plaintiff in that Suit 792 no less. Any suggestion that the information that led to the plaintiff filing the present suit only came to light recently is therefore entirely untrue and plainly unacceptable. [53] Similarly, the same allegation of breach of fiduciary duties against the second defendant, given that the documents relied on by the plaintiff existed, as the plaintiff itself exhibited, at least around at the time of Suit 792 was filed in 2010, clearly means that it could have also been raised in Suit 146 and Suit 1745. [54] In Suit 1745, as stated earlier, the plaintiff in September 2010 sought a return of the compensation paid to the second defendant, on the basis of the breach of fiduciary duties, fraud and conspiracy. Clearly, the allegations now stated in the statement of claim presently before me could also have more expediently been raised in Suit 1745. So too in Suit 146, as the allegation of the second defendant having an interest in the first defendant company could have been raised in the counterclaim against the second defendant in the allegation that the second defendant with several others were acting in concert in acquiring control of the plaintiff company without extending a general offer to the other shareholders. [55] The concept of res judicata is not confined only to issues that have actually been judicially determined previously. The law would also not permit issues which could have been raised in and properly belonged to an earlier proceeding to be surfaced for litigation in a subsequent suit. This is the wider doctrine of res judicata. The defendants, at the start of the hearing made available the decision in Malpac Holdings Berhad v Malpac Capital Sdn Bhd & Ors [2017] 1 LNS

In this connection, it would not be remiss of me to refer to certain passages in that case where I had briefly stated the law on the point, as follows:- “The Wide Doctrine of Res Judicata [134] The issues raised by the plaintiff cannot succeed because they are plainly barred by res judicata. For it is fairly well settled in local jurisprudence that the principle of res judicata is even of wider remit, and extends to matters which are part of the subject matter of a litigation which ought to have been raised even if not actually raised to be determined, due either to inadvertence or by conscious design. In this case, it had in fact been raised and adjudicated upon. Page 14 of 39 [135] The Supreme Court made it clear in Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 1 LNS 504; [1995] 3 MLJ 189 that there are two kinds of estoppel per rem judicatum, namely cause of action estoppel and issue estoppel. The scope of the plea of res judicata was clarified in the following terms:- "[1] The significance of res judicata lies in its effect of creating an estoppel per rem judicatum, which may take the form of either cause of action estoppel or issue estoppel. The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in Court for a particular remedy are determined in a final judgment and such right of action, that is the cause of action, merges into the said final judgment. The issue estoppel, on the other hand, means simply an issue which a party is estopped from raising in a subsequent proceeding. [2] The doctrine of res judicata is not confined to causes of action or issues which the Court is actually asked to decide or has already decided. It covers also causes of action or issues or facts which, though not already decided as a result of the same 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 process of the Court to allow a new proceeding to be started in respect of them". [136] The Supreme Court referred to and applied the following common law principles in its exposition of the scope of the doctrine of res judicata. First, the passage by Wigram VC in the case of Henderson v. Henderson [1843] 3 Hare 100 at p 115 which reads:- "The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the same subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time". [137] In addition, the meaning of the words in the said above statement, namely "every point which properly belonged to the subject of litigation" was explained by Somervell LJ in Greenhalgh v. Mallard [1947] 2 All ER 255 at p 257 as follows:- Page 15 of 39 ".... res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but.... it covers issues or facts which 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 process of the Court to allow a new proceeding to be started in respect of them". [138] There are a number of other local cases which have since followed this principle (see Huawei Tech Investment Co. Ltd. v. Transition Systems (M) Sdn Bhd [2013] 1 LNS 329; [2013] 5 MLJ 396 and OCBC Bank (M) Bhd v. Kredin Sdn Bhd [1997] 2 CLJ 534). I therefore hold that the issues on transfer of additional shares in RRSB and the alleged need for approval under Section 132C (1A) of the CA raised, yet again, herein are so manifestly res judicata and surely thus cannot be further pursued”. [56] In other words, the present complaints pleaded by the plaintiff had either been raised, or ought to have been raised earlier, being matters which properly belonged to the subject of the earlier litigation. The plea of res judicata, in the nature of both cause of action and issue estoppel, including the wider sense of res judicata as referred to by the leading Federal Court decision in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 thus applies to the instant case to prevent yet another re-opening and re-litigation of the issues. It is quite plain that the plaintiff has had many opportunities to raise the matters presently alleged in its statement of claim before this Court, but chose not to do so in respect of some of them. Whether the non-raising of these issues earlier was by design, or due to negligence or inadvertence is of no consequence. [57] Crucially, this failure on the part of the plaintiff to have the present issues raised in earlier proceedings is most remarkably manifest in the Oppression Action. It is especially clear and most pointedly relevant in the Oppression Action, for the plaintiff, in resisting the minority oppression claim could and should then have argued, like the plaintiff is doing now, that the first defendant held the 30% stake in constructive trust for the plaintiff and that this was, as now alleged by the plaintiff, because the second defendant controlled the first defendant (an allegation already made in Suit 792, as mentioned earlier), such that the purchase by the first defendant was attributed to the second defendant’s breach of his fiduciary duties towards the plaintiff company, all of which had been dishonestly assisted by the other defendants in conspiracy with the second defendant. Page 16 of 39 [58] This present round of litigation, where the plaintiff anchors the thrust of its claim on the question of the true ownership of the 30% stake therefore is one that is plainly unsustainable. It would also not have survived the ruling of an earlier decision of the Supreme Court in Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 CLJ 548 which in the judgment of Eusoffe Abdoolcader SCJ held thus:- “There is more over the inherent jurisdiction of the Court in cases where res judicata is not strictly established, and where estoppel per rem judicatam has not been sufficiently pleaded, or made out, but nevertheless the circumstances are such as to render any re-agitation of the questions formally adjudicated upon a scandal and an abuse, the Court will not hesitate to dismiss the action, or stay proceedings therein, or strike out the defence thereto, as the case may require. It would suffice in this regard to refer to the judgment of the Privy Council delivered by Lord Wilberforce in Brisbane City Council and Myer Shopping Centres Pty. Ltd. v. Attorney-General for Queensland [1979] AC 411 (at p. 425): The second defence is one of 'res judicata '. There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings. The classic statement of this doctrine is contained in the judgment of Wigram V-C in Henderson v. Henderson [1843] 3 Hare 100 and its existence has been reaffirmed by this Board in Hoystead v. Commissioner of Taxation [1926] Ac 155. A recent application of it is to be found in the decision of the Board in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] AC 581. It was, in the judgment of the Board, there described in these words: ... there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings'. (p. 590). The attempt by way of the instant proceedings to re-litigate and re-open the earlier action clearly reflects the appositeness of the caption suggested for this matter in the prelude to this judgment and would appear to us to be as clear an instance of an abuse of the process of the Court as one can find within the connotation thereof enunciated in the speech of Lord Diplock Page 17 of 39 in Hunter v. Chief Constable of the West Midlands Police and Ors. [1982] AC 529 (at page 542). [59] The very cause of action and issues relied upon by the plaintiff in this present litigation against the defendants are crystal clearly matters which either had been or could and should have been raised in the Oppression Action. The Buy-Out Order of 27 March 2012 directing the purchase by the plaintiff of the first defendant’s 30% stake in Bukit Jalil was premised predominantly on the fundamental basis that the first defendant was for all intents and purposes the owner of the shares represented by the 30% stake. [60] That is surely inescapable for it was a complaint made by a member in a minority oppression action to start with. And certainly it was open, if not incumbent upon the plaintiff in its opposition to the Oppression Action to contend that the second defendant was the alter ego of the first defendant, and that the first defendant’s original purchase of the 30% stake was made possible by the second defendant’s breach of fiduciary duty to the plaintiff, facilitated by the dishonest assistance of the other defendants, such that the first defendant ought therefore to be held to hold the 30% stake as a constructive trustee instead for the plaintiff. [61] It is in evidence that the complaints now raised in the present suit either had been raised or could have easily been introduced by the plaintiff in the Oppression Action. Thus, in relation to the third and fourth defendants who were former directors of the first defendant company at the time of the purchase of the 30% stake, the plaintiff’s case of conspiracy and dishonest assistance is that the two defendants had agreed to act as proxies or nominees of the second defendant and assumed the role of directors and/or shareholders of the first company with a view to acquiring the 30% stake which the first defendant ultimately did. [62] But the same allegation had been made in the Oppression Action against the first defendant (and thus its directors and shareholders at the material time, being the third and fourth defendants). This complaint cannot be seen more clearly than in the affidavit affirmed by one Ivan Oh Boon Wee on behalf of the plaintiff on 19 July 2011 in the Oppression Action, as follows:- “It is my humble submission that in view of the facts and factors set out in my affidavit herein, Zen Courts [the first defendant herein] has knowingly assisted VL [the second defendant herein] Page 18 of 39 and LCC in their breaches of duty to Ho Hup [the plaintiff herein] in connection with the acquisition of the 30% shares in BJD under the ZC SPA (i.e the Sale and Purchase Agreement dated 28 September 2009 between UEM and Zen Courts)...” [63] In addition, in the affidavit in reply affirmed by a former director of the plaintiff company, one Lim Ching Choy (“LCC”), for the plaintiff in resisting the instant application by the third and fourth defendants, it was averred that from March or April 2010 there was no doubt in his mind that the second defendant was the beneficial shareholder and had full control of the first defendant. [64] But LCC, like the second defendant and several others were defendants in Suit 792 and had given evidence as a witness on oath in the trial of that Suit 792 which was filed well before the Oppression Action. The contention about the first defendant’s connection with the second defendant was clearly already an issue in Suit 792, for example as raised in the written submissions of the plaintiff referred to earlier, and repeated in the affidavit of Ivan Oh Boon Wee, also for the plaintiff, in the subsequent Oppression Action, as stated earlier. Thus the point about the second defendant’s control of the first defendant, made possible by the dishonest assistance of the other defendants during the relevant period was plainly already raised in the earlier proceedings. [65] Yet, the plaintiff either deliberately or otherwise, did not earlier raise some of the issues in the exact manner now pleaded, such as the allegation of the existence of the constructive trust (despite in earlier proceedings having already alleged the presence of the relationship between the first and second defendants), notwithstanding the fact that the plaintiff was already earlier in possession of the information that it now argued, incorrectly, as have been established earlier in this judgment, to have been concealed by the second defendant from the plaintiff company. There was even no dispute in the Oppression Action that the first defendant was rightfully the registered and beneficial owner of the 30% stake in Bukit Jalil. [66] More importantly, quite apart from the finding that the issues now complained by the plaintiff had in certain respects been shown to have already been raised and in most others ought to have been raised earlier, applying the law as established by authorities as discussed earlier, such as Superintendent of Pudu Prison v Sim Kie Chon and Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd, it is clear beyond peradventure that the very decision in the Oppression Action Page 19 of 39 itself renders the issues not open for challenge, in the absence of any appeal by either of the parties to that suit. [67] The instant suit by the plaintiff cannot succeed because the Buy-Out Order remains valid and binding Orders of Court that afford a complete defence to the defendants. The plaintiff has also not challenged or even attempted to impeach the same. The plaintiff must certainly be bound by the Buy-Out Order. It is after all trite law that Orders of Court must be treated with respect and require strict obedience, until and unless set aside (see the Supreme Court decision in Wee Choo Keong v. MBf Holdings Bhd [1993] 2 MLJ 217). [68] It is of relevance to observe that the following are only a few of the passages from the exhibited broad grounds of the judgment of the Court in respect of the Buy-Out Order dated 27 March 2012 which made definitive findings which till this day remains valid and binding. First, it was held that the plaintiff recognised the first defendant company as a shareholder of Bukit Jalil by virtue of the Sale and Purchase Agreement dated 28 September 2009:- “Therefore, in my view, when the Petitioner stepped into the shoes of the UEM by acquiring all the shares of the UEM in the 1st Respondent, the Petitioner placed themselves in the same position as UEM in relation to the joint venture development”. “It appears to me that by submitting that the Respondent recognizes the Petitioner as a shareholder but refused to acknowledge the Petitioner’s rights under the JVA 1995, the Respondents are drawing a dichotomy between the rights of the members of the company and the rights to participate in the management and running of the company. I think such dichotomy in the circumstances of the case is flawed.” [69] Secondly, the Court observed that the plaintiff had waived its right to purchase the 30% stake by reason partly of its own lack of funds and had identified the first defendant as a strategic partner to replace UEM:- “But the 2nd Respondent had waived that rights because, partly due to lack of fund and therefore has to look for strategic partner to replace UEM in the joint venture. It was under this scenario that the Petitioner was identified and eventually purchased the UEM shares. This evidence is in the minutes of meetings of the 2nd Respondent” Page 20 of 39 [70] Thirdly, it was found that the plaintiff had agreed to the first defendant acquiring the 30% stake:- “Secondly, there is evidence to show that the 2nd Respondent had agreed to the Petitioner requiring the UEM shares and agreed to waive its pre-emptive rights to purchase the shares on condition that the Petitioner agree to be bound by the terms of the JVA 1995.” [71] In view of the foregoing, there is absolutely no valid or tenable basis for the plaintiff to now seek to re-litigate matters which either had been ventilated previously or ought to have been raised in earlier proceedings or had actually been judicially determined conclusively. The claim is clearly not permitted under the application of the doctrine of res judicata. The claim is obviously unsustainable and should be struck out on this ground alone. The new suit is a collateral attack on the Buy-Out Order [72] There is another major reason why the new suit by the plaintiff cannot be sustained. It is objectionable because the present claim by the plaintiff also violated the rule prohibiting Orders of the Court to be attacked in collateral proceedings. It bears repetition that the Buy-Out Order from the Oppression Action was not appealed against. It is final and binding. Yet the statement of claim of the plaintiff primarily prayed for a declaration that the first defendant holds the 30% stake and the benefits of such holding in trust for the plaintiff. [73] The very words pleaded by the plaintiff in the statement of claim in the instant suit make this point abundantly clear. Thus, certain of the reliefs prayed for by the plaintiff included the following:- “1. A declaration that Zen Courts held the Subject Shares and the Buy-out price as well as the instant interest paid, on trust for Ho Hup from the time Zen Courts received the same;

If necessary, an order that Zen Courts transfers to Ho Hup the Subject Shares within seven (7) days of an order hereof. ……. ……….

An order that Zen Courts does account, by way of an affidavit….

4.1 for the benefits, direct or indirect, received by Zen Courts by reason of it having been registered as shareholder of Bukit Jalil…..” [74] In essence, the plaintiff is seeking that the shares represented by the 30% stake earlier acquired by the first defendant be declared to be beneficially owned by the plaintiff instead from the date of its acquisition by the first defendant, and that the first and second defendants be asked to account for all benefits from the acquisition be paid by the first and second defendants to the plaintiff. The plaintiff also asked from all seven defendants general, aggravated and exemplary damages. [75] In my view, there is little doubt, if at all, that if the claim of the plaintiff is allowed, and the plaintiff be as a result declared as the beneficial owner of the 30% stake, such that the plaintiff need not pay anything to the first defendant to purchase the shares, and that any purchase price already paid pursuant to the Buy-Out Order to be refunded to the plaintiff, the entirety of the Buy-Out Order and the findings of oppression in the Oppression Action would, for all intents and purposes, effectively be rendered a nullity and cease to have any further effect. Its raison d’ etre absolutely vanishes. [76] This attempt by the plaintiff, in essence and substance, to impeach and set aside a regularly obtained and final Order of Court in the form of the Buy-Out Order, granted way back on 27 March 2012, in collateral fashion by the institution of the instant suit in 2017, without commencing a fresh action is, in my view, in the circumstances of this case, nothing but a patent abuse of process. [77] The plaintiff must expressly plead fraud and fresh evidence to file a new action to set aside the Buy-Out Order (see the Federal Court decision in Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1). Instead the plaintiff did not do any of these. The plaintiff alleged that the defendants in the Oppression Action actively concealed or suppressed matters and committed a fraud on the Court. Yet the information it relied on to make this accusation – the various minutes and correspondences - have been shown to have always been in the well documented possession of the plaintiff even from the time of the Suit 792. [78] It is worthy of emphasis that it is clear from unrebutted affidavit evidence that the many letters and minutes of meetings of the board of the plaintiff alleged in the statement of claim of the instant suit to have been concealed from the plaintiff had in fact been made Page 22 of 39 available in the earlier proceedings, including specifically the Suit 792, even before the Oppression Action, by none other than the plaintiff itself. [79] This is made manifest by the affidavit affirmed by the second defendant on 25 May 2017 in support of his striking out application. It was expressly averred that the specific documents referred to as correspondence and minutes of the meetings of the board of directors of the plaintiff which were pleaded to have been concealed had in fact, as stated earlier, been referred to in the document entitled the Chronology of Main Events dated 27 May 2011, as prepared by the solicitors for the plaintiff in the earlier Suit 792. The plaintiff has no answer to this averment. [80] Despite this, the plaintiff repeated the same allegation of concealment in its written submissions which prompted the second defendant, in its written submissions in reply, to list out in detail where the documents alleged to have been concealed could be found in the affidavit of the second defendant which instead demonstrate that each of these was known and in the possession of the plaintiff from the time of Suit 792. Again, there is no response from the plaintiff on this, in writing or at the hearing. Thus, the complaint of non-availability of information in earlier proceedings is untenable and entirely without merit. [81] The learned lead counsel for the plaintiff did, at the hearing highlight that development that led to the filing of the new suit or ‘the crystallising event’, as he put it, was that LCC had now come forward, where in his affidavit affirmed on 13 July 2017 averred the allegations now pleaded by the plaintiff, including particularly that the first defendant company was controlled by the second defendant, and the third and fourth defendants were the second defendant’s nominees. [82] But almost the entirety of the affidavit is a narration of LCC’s version of what had transpired in regard to the purchase of the 30% stake by the first defendant. What in my view is most telling though is the contents are quite conspicuous in the absence of any documents to substantiate any of LCC’s accusations. No contemporaneous documents were exhibited. The importance of contemporaneous documents cannot be emphasised enough. None is forthcoming here, vis-à-vis LCC’s affidavit. Page 23 of 39 [83] In the case of Hijau Bumi Petroleum Sdn Bhd v Platinum Green Chemicals Sdn Bhd & 2 Ors [2017] 8 AMR 684, I stated thus:- “[44] I am, in this context reminded of the observation by Chang Ming Tat FJ on the importance and value of contemporaneous acts and documents, and the need to test oral testimonies against them, who in the case of Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ 229, expressed as follows:- “Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat 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 them than to believe his subsequent recollection or version of it, particularly 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 other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity...” [emphasis added] [84] An evaluation of the acts and documents contemporaneous with the event, when tested against the averments by LCC would in my view lead to lend greater credibility to the case of the defendants. It would, in my view, be too conveniently self-serving and perfunctory for the plaintiff to now assert matters unsubstantiated and contradicted by contemporaneous documents as per the listing prepared by the plaintiff itself. [85] The deponent cannot make bare averments in reply to the defendants’ strike out applications which had already shown that the various correspondence and minutes had always been in the knowledge of the plaintiff. The plaintiff, through LCC, did not proffer any new evidence to come close to even denting the substance of the defendants’ applications. [86] Secondly, learned lead counsel for the plaintiff argued whilst the conclusion of trial could find the case of the plaintiff less than credible, at this stage it is not a plain and obvious case to be struck out. This is in my assessment however not borne out by the totality of affidavit evidence before me. It is simply insufficient if not unsatisfactory Page 24 of 39 for the deponent (LCC) to merely say in his two final paragraphs that first, since a number of years had elapsed, he had not thus far been able to locate records to be included as exhibits and that secondly, he was mindful that his latest averments could be construed to be inconsistent with his averments in the earlier proceedings. [87] This is especially so since he attributed the apparent change in position to what eventually came down to this statement:- “I have come to affirm this Affidavit as I heard market talk that Ho Hup had been contemplating an action against VL and others; as a result, I contacted Ho Hup and expressed my wish only to be honestly truthful on the matters relating to the Suit herein.” [88] This is downright inadequate, and nowhere near half as credible to rebut the case of the defendants. It is simply unacceptable. I cannot but agree with the submission of the learned lead counsel for the defendants that the averments in the affidavit of LCC did not appear plausible or deserving of further judicial examination within the context of the proposition enunciated by Lord Diplock in delivering the opinion of the Privy Council Eng Mee Yong & Ors v. Letchumanan [1979] 2 MLJ 212 who had said:- “Their Lordships must therefore turn to the evidence that was before the High Court on the hearing of the application, bearing in mind that if there appears to be conflict of evidence which is not on the face of it implausible, such a conflict ought not to be disposed of on affidavit evidence only. It leaves a serious question to be tried”. [89] On the face of the affidavit of LCC, the purported evidence appears prima facie implausible. There is no conflict of evidence. [90] Not only that. The affidavit by LCC is also less than convincing because it was affirmed on 13 July 2017, more than a good three months subsequent to the filing of the statement of claim which made the allegation against the defendants. When the claim was pleaded and filed, no mention was made of this change in position taken by LCC. It is all too convenient and self-serving for the plaintiff to now produce the affidavit by LCC purportedly to shed more light on the evidence against the defendants. And this is despite the trite rule of pleadings that statement of claims cannot be improved by affidavits, which is precisely what the plaintiff now wishes to achieve. Page 25 of 39 [91] The plaintiff had also absolutely no qualms to not do anything about the Buy-Out Order and to let the Buy-out Order stand since 27 March 2012. On the contrary, the plaintiff had instead clearly acted on the Buy-Out Order, and even benefitted from it. As stated earlier, the plaintiff secured an Order fixing the price on 18 July 2013, even obtained leave for committal on 4 December 2013, and the Order to compel the buy-out on 25 February 2014. And now the plaintiff wants to have the Buy-Out Order set aside, collaterally. [92] The plaintiff should be estopped from taking this contrary position now (see the leading Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab-Malaysia Merchant Bank Berhad [1995] 4 CLJ 283). And at the same time the plaintiff cannot blow hot and cold. The plaintiff cannot approbate and reprobate. In the case of Bakti Dinamik Sdn Bhd v. Bauer (Malaysia) Sdn Bhd [2016] 10 CLJ 247, I stated thus:- “[43] The position taken by the plaintiffs currently may be characterised as one which violated the principle against ‘approbating and reprobating’. In the Court of Appeal case of Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair”. [93] Reference must in this regard also be made to a more recent Court of Appeal decision of Prestaharta Sdn Bhd vs. Ahmad Kamal bin Md Alif & Ors [2016] 4 MLJ 39 where the Court made the following observations against approbating and reprobating:- “(j) arising from the above, it is abundantly clear that the plaintiffs are ‘blowing hot and cold’ with an obvious intent to defeat the clear and unambiguous terms and covenants they had entered with the developer pursuant to their respective S&P’s and DMC…

thus, in the case of Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761, the Court of Appeal said of the principle of approbation and reprobation as follows: We categorically say that the liquidator cannot blow hot and cold to suit him whenever he feels like it. He cannot approbate and reprobate in the same breath. On the one hand, he claims that the High Court order dated 26 July Page 26 of 39 2001 overrides or displaces a stature which render the said order invalid and yet he has the audacity to continue to act as a liquidator by virtue of the said order. In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376, at pp 383–384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [94] The plaintiff’s allegations in respect of the Buy-Out Order appear to fortify the argument that the plaintiff is using this suit as a convenient excuse to stage an attack in collateral fashion against the Buy-Out Order. This the Court will not permit. That this is a form of collateral attack and it is an abuse of process has been made clear by the Supreme Court in Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd and Another & Another Appeal [1995] 3 MLJ 472 where Peh Swee Chin SCJ, delivering the judgment of the Court held instructively as follows:- “For our part, with great respect we were unable to agree with the learned judge for deciding in this manner by brushing aside the order of substituted service, for the learned judge was obviously considering the validity of the order of substituted service of the High Court dated 5 January 1986 when the same order was not a subject matter of an application before the learned judge or for that matter, before the learned registrar earlier for its discharge. The order of substituted service of the High Court, a superior court of competent jurisdiction, must be obeyed by everyone save in a few and rare exceptions and it can only be challenged as regards its validity by the only way of having it set aside by proceedings instituted for the very purpose. It cannot be challenged thus collaterally in any proceedings as regards its validity save in a very few rare exceptions, (such as a Bankruptcy Court going behind a judgment of any court on credibly raised issues of collusion, fraud, etc, only on hearing a bankruptcy petition), which all do not apply here. Please see Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1991] 1 MLJ 100; Puah Bee Hong & Anor v Pentadbiran Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor (Teo Keng Tuan Robert, intervener) and another appeal [1994] 2 MLJ 601 and Hadkinson v Hadkinson [1952] 2 Page 27 of 39 All ER 567. In this connection, it is immaterial that the said order of the High Court was actually made by the learned registrar and not a High Court judge. The learned registrar should be considered notionally to be making the order as if he were a deputy High Court judge. With great respect, the learned judge was making a similar error as the learned judge in Pembinaan KSY, by adjudicating on the validity of the order of substituted service not in actual proceedings filed for the very purpose of having the order for substituted service or service in pursuance thereof set aside”. [emphasis added] [95] The Federal Court has more relatively recently reiterated the same position in CIMB Investment Band Bhd v Metroplex Holdings Sdn Bhd [2014] 9 CLJ 1012 thus:- “The inherent jurisdiction to set aside, ex debito justitiae, orders regularly obtained is settled. Unless the order is a nullity in the sense as enunciated in Badiaddin, it could not be attacked in collateral proceedings.” [96] The instant writ action by the plaintiff is designed, collaterally, to attack the Buy-Out Order which is a final and binding Order of the Court. This is an abuse of the process of the Court pure and simple, is plainly and obviously unsustainable and should not be countenanced. On this ground alone the suit ought to be struck out. [97] Whilst the grounds of res judicata and abuse of process in seeking to set aside the Buy-Out Order collaterally are each sufficiently cogent to warrant a striking out of the claim, for completeness, I will discuss, albeit in summary fashion, the other bases which would also result in the summary disposal of the instant suit in so far as the applications by the defendants other than the second defendant are concerned. Claim against the third and fourth defendants statute-barred [98] A key defence of the third and fourth defendants is that they were no longer involved in the first defendant since the end of October

It bears repetition that the purchase of the 30% stake by the first defendant in the first place was pursuant to the sale and purchase agreement dated 28 September 2009. Subsequently however, the third and fourth defendants transferred their shares in the first defendant company to the fifth, sixth and seventh defendants on 28 October 2009. Page 28 of 39 [99] The 30% stake only got transferred to the first defendant on 26 March 2010. Thus by the time of the transfer of the 30% stake to the first defendant, the third and fourth defendants were no longer with the first defendant, as supported by the relevant company Forms 32A and 49. [100] This means that the allegations levelled against the third and fourth defendants could only relate to events which concern their involvement in the first defendant company prior to October 2010. But the filing of the instant claim on 24 March 2017 must therefore mean that the allegations in fact concern matters which occurred more than six years ago from the date of filing. [101] This infringes Section 6 of the Limitation Act 1953 which states:-

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort; ……” [102] Nor, in my view, can the plaintiff rely on Section 22(1) of the Limitation Act 1953 to argue that the 30% stake in question is claimed to be held on constructive trust on its behalf such that the limitation of six years would not apply. The relevant provision says this:-

No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action-

in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. [103] This Section 22(1) cannot be invoked to dis-apply the limitation period because the exception applies only in cases involving “true trustee” and not constructive trustee, like presently pleaded. Thus, in Kuan Shin @ Kuan Nyong Hin & Ors v Ng Aik Kee & Ors [2016] 1 AMCR 701, the High Court held that: Page 29 of 39 “In a subsequent decision of Paragon Finance Plc v DB Thakerar & Co [1999] 1 All ER 400, Millet LJ again went on to state that s.21 of the UK Limitation Act 1980 (which is in pari materia with the Malaysian s.22 LA) applies only to a “true trustee” who was in receipt of property or money on account of being a true trustee as opposed to a constructive trustee arising out of equitable relief…” [104] Further, the UK Supreme Court has also ruled earlier to similar effect. In Williams v Central Bank of Nigeria [2014] UKSC 10, the Supreme Court examined Section 21 of the United Kingdom Limitation Act 1980 (which is in pari materia with our Section 22 of the Limitation Act 1953) and held as follows: “In Cattley v Pollard [2007] Ch 353, Richard Sheldon QC sitting as a deputy judge of the High Court, after an impressive review of a substantial body of case-law and academic literature, held that section 21(1) (a) of the Limitation Act 1980 applied only to express and de facto trustees and not to persons liable only by virtue of their dishonest assistance in a breach of trust. In JJ Harrison (Properties) v Harrison [2002] 1 BCLC 162, and again in Gwembe Valley Development Co Ltd v Koshy (No.3) [2004] 1 BCLC 131, the Court of Appeal adopted the analysis of Millett LJ and applied it to a case of knowing receipt of the assets of a company. It was held in both cases that no period of limitation applied, but only because the defendant was a director and as such to be treated as a true trustee. It is clear from the court’s reasoning that the limitation position would have been different if he had not been. In Halton International (Holdings) Inc Sarl v Guernroy Ltd [2006] WTLR 1241, the Court of Appeal adopted the same reasoning and held that section 21(1) applied only to claims against express or de facto trustees, and not to claims against constructive trustee whose liability came into being as a result of the transaction impeached”. [emphasis added] [105] The third and fourth defendants are not alleged to be true trustees. Section 22(1) of the Limitation Act 1953 thus has no application. Section 6(1) applies and the claim of the plaintiff against the third and fourth defendants is accordingly statute-barred. [106] Similarly, any contention that Section 29 of the Limitation Act 1953 would apply to postpone the operation of the limitation period would also not succeed. The relevant parts of Section 29 read:- Where, in the case of any action for which a period of limitation is prescribed by this Act, either-

the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

the right of action is concealed by the fraud of any such person as aforesaid; or

the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:……. [107] Section 29 cannot assist the plaintiff for the primary reason that the plaintiff could not show that it could not have discovered the facts concerning the alleged concealment. The requirement of reasonable diligence is crucial (see the Court of Appeal decision in Lin Kai Wing & Anor v Lin Kai Lam & Ors [2016] 10 CLJ 77). [108] As discussed earlier in this judgment, it is manifest that the allegations of breach of fiduciary and conspiracy against the second defendant had been made at least in Suit 792, including the evidence given at the trial in Suit 792 by LCC on the very issue of the alignment of the first to the second defendant, and the clear evidence of the averment of one Ivan Oh mentioned earlier in the subsequent Oppression Action where he affirmed that the first defendant (thus the third and fourth defendants as its directors and shareholders) knowingly assisted the second defendant (and LCC) in their alleged breaches of duty to the plaintiff. [109] Furthermore, no less critically, the various correspondence and records of minutes of board meetings had also been in the knowledge of the plaintiff at least since in Suit 792. It is as clear as day that the plaintiff could with reasonable diligence have certainly discovered the alleged concealment as early as in 2010 in Suit 792, if not already since then having actual knowledge of the same – the latter being the more likely scenario. [110] The defence of limitation is a well-established basis to justify a striking out of a claim (see the former Federal Court decision in Haji Hussin bin Hj Ali & Ors v Datuk Haji Mohamed bin Yaacob & Ors and Connected Cases [1983] 2 MLJ 227). The instant claim by the plaintiff against the third and fourth defendants is a prime example of such a claim. It is conspicuously unsustainable. It is to be struck out. Page 31 of 39 Lack of particularisation of conspiracy in the pleadings [111] Further, I find that the pleadings against the fifth defendant failed to provide the requisite particularity to support the allegation of dishonest assistance and conspiracy. The lack in precision and clarity of the ingredients constituting the alleged conspiracy and dishonest assistance is considerable, more so as the fifth defendant only came into the picture upon his entry as a shareholder in the first defendant on 28 October 2009 which was subsequent to the date of the Sale and Purchase Agreement of 28 September 2009, and more relevantly, the fifth defendant’s appointment as director of the first defendant much later on 21 January 2011. [112] On the face of the pleadings, the essential elements of the tort of conspiracy, specifically, “assistance”, “agreement to injure” and “overt act to injure pursuant to the agreement” against each and every alleged conspirators are conspicuously absent (see further below). In my view, this, in the circumstances of this case, is fatal as it renders the statement of claim of the plaintiff defective for failing to disclose any reasonable cause of action of dishonest assistance or conspiracy against the fifth defendant. [113] The fifth defendant became a director of the first defendant on 21 January 2011 and became a shareholder earlier on 28 October

First, the pleadings against the fifth defendant appeared only in a mere two paragraphs of the plaintiff’s statement of claim (paragraphs 23.3 and 25). In essence, the plaintiff alleged that the fifth defendant as a director of the first defendant had dishonestly assisted the second defendant in the continued wrongful control of the first defendant; secondly, he had conspired with the second defendant in the wrongful acquisition of the 30% stake and thirdly, that the Oppression Action and subsequent proceedings were initiated by the first defendant through the instructions of the fifth, sixth and seventh defendants with a view to securing a financial gain and that this amounts to an lawful means conspiracy and/or an unlawful means conspiracy. [114] However, the plaintiff did not disclose with any discernible degree of clarity and precision the overt acts which were allegedly to have been done by the fifth defendant in his alleged assistance of the second defendant. No particulars have been pleaded as to how the fifth defendant assisted the second defendant in breaching his fiduciary duties to the Plaintiff. And the allegation concerning the Oppression Page 32 of 39 Action is plainly misconceived for the first defendant was successful and the Buy-Out Order was not appealed against. [115] Even more so, it is difficult to fathom how the fifth defendant could be said to have been involved in an agreement to injure the plaintiff in 2009 when he became a director only in 2011. A mere institution of a legal action without more cannot under any circumstances be considered as a form of conspiracy. [116] It is trite that under Order 18 r 7 of the RC 2012, material facts must be pleaded, for these are the elements which are necessary for the purpose of formulating a complete cause of action. In Bruce v Odhams Press Ltd [1936] 1 KB 697, Scott LJ said: “The word 'material' means necessary for the purpose of formulating a complete cause of action, and if any one 'material' fact is omitted, the statement of claim is bad”. [117] A party is entitled to have from the opposing party, particulars of facts, as opposed to evidence, relevant to the issues at stake in order to prevent surprise, in order to enable the other party to know the exact case he has to meet, especially since parties cannot at trial adduce evidence in support of facts which were not pleaded facts (see the Supreme Court decision in Superintendant of Lands and Surveys (4th Div) v Hamit bin Matusin [1994] 3 MLJ 185). [118] Such pleadings against the fifth defendant in my view do not satisfy the requirements of Order 18 r 7. It cannot be safely said that the fifth defendant is able to appreciate from such averments by the plaintiff in the statement of claim the exact case against him that he has to answer. No less crucially, the pleadings in the instant case as against the fifth defendant are flawed because they infringe another important rule of pleadings especially relevant to the instant applications. This is encapsulated in Order 18 r 12. [119] Order 18 r 12(1) (a) of the Rules of Court 2012 (“the RC 2012”) provides that:- Particulars of pleading (O18 r 12)

–(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-Page 33 of 39

Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the pleading party relies; and …. [120] It is an important civil procedure rule that when pleading fraud, a plaintiff must plead by stating with particularity the circumstances constituting fraud. There must be enough facts to state a claim to relief that is plausible on the face of the statement of claim in order to prevent dismissal of a complaint. [121] And in Gasing Heights Sdn Bhd v. Aloyah Bte Abd Rahman & Ors [2000] 2 CLJ 664, Mahadev Shankar J (as he then was) said: "Just as fraud must be pleaded with great particularity, so also all the constituent ingredients going to make up the conspiracy, must be pleaded. On this ground alone, the claim for conspiracy fails." [122] Thus conspiracy must similarly be pleaded with great particularity, failing which, the claim is liable to be struck out under Order 18 r. 19(1) (a) of the RC. [123] In dealing with the element of the tort of conspiracy, I can do no better than reproduce the pertinent passages from the judgment of Mohd Zawawi Salleh JCA in a recent Court of Appeal decision in Cubic Electronic Sdn Bhd v. MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 CLJ 676, as follows:- “[10] To appreciate the submissions advanced by learned counsel for the defendants, we think it is relevant to deal with the law of conspiracy which is part of what are known as the "economic torts". There are four elements to a conspiracy claim:

a combination or agreement between two or more individuals;

(ii) an intent to injure;

(iii) pursuant to which combination or agreement, and with that intention, certain acts were carried out; and

(iv) resulting loss and damage to the claimant. (See Khoo Teng Chye v. Cekal Berjasa Sdn Bhd & Anor, Civil Appeal No: P-02-542-03-2015 (CA) [2015] 6 CLJ 449 (CA)). Page 34 of 39 [11] There are two kinds of conspiracy, the elements of which are distinct:

unlawful means conspiracy: a conspiracy in which the participants combine to perform acts which are themselves unlawful (under either criminal or civil law); and

(ii) lawful means conspiracy: a combination to perform acts which, although not themselves per se unlawful, are done with the sole predominant purpose of injuring the claimant - it is in the fact of the conspiracy that the unlawfulness resides. (See Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors [2012] 2 CLJ 1076 (HC); SCK Group Bhd & Anor v. Sunny Liew Siew Pang & Anor [2010] 9 CLJ 389; [2011] 4 MLJ 393 (CA)). [12] The distinction between the two was succinctly elucidated by Lord Bridge in Lonrho Plc v. Fayed & Others [1991] 3 All ER 303 as follows: “Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful”. [124] A conspiracy essentially consists in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means (see Mulcahy v R (1868) LR 3 HL 306). The tort of lawful means conspiracy and unlawful means conspiracy both require evidence of the element of an agreement between two or more parties who take concerted action that causes injury to the claimant. [125] But again, the plaintiff, from the pleadings has clearly failed to plead either of the circumstances of any alleged agreement between the defendants, the objective and intention of the said agreement, the purported overt acts of the defendants in pursuance of the agreement or in what manner the acts of the fifth defendant in particular had resulted in injury to the plaintiff. Page 35 of 39 [126] In the instant case, the particulars of dishonest assistance and conspiracy and other accusations are absent. There are simply insufficient facts to support any of them. Not least against the fifth defendant. I reiterate that an allegation that the fifth defendant had committed conspiracy without condescending into the details of the alleged conspiracy is bad pleading. [127] After all, in all proceedings, the Court will only consider matters which are pleaded. The Court cannot help improve the case of the litigants which must stand or fall based squarely on what have been pleaded. Hamid Sultan JCA in delivering the decision of the Court of Appeal in Heritage Grand Vacation Club Bhd v Pacific Fantasy Vacation Sdn Bhd [2016] 4 MLJ 389 held that: “[4] It is well established that it is not the function of the court to build a case for the plaintiff/defendant inconsistent with the pleaded case. In Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, the Supreme Court had in strong terms held, and which still stands as a ‘gold standard’ in pleading rules and evidence, as follows: It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance…” [128] The plaintiff must furnish the requisite particularity by pleading the circumstances of material facts as to the questions of “who, what, where, when and how” of the alleged dishonest assistance and conspiracy in order to enable the defendants to provide a meaningful response. It cannot be emphasised enough that general statements which are vague and containing conclusory allegations do not satisfy the requirements of Order 18 r 7 and r 12. [129] The statement of claim too cannot hide behind purported averments which in truth are nothing but merely a set of formulaic recitation of the ingredients of a cause of action. In any event crucially, for this instant application by the fifth defendant, it is based on the ground of the claim not disclosing a reasonable cause of action under limb (a) of order 18 r 19 (1) of the RC 2012 which excludes consideration of affidavit evidence. Page 36 of 39 [130] Pleadings sans particularisation is bad pleading because matters such as fraud and conspiracy cannot be expected to be inferred from statements which are vague and general in nature, more so as the concept of fraud itself is ever changing. Similarly, when alleging fraud and conspiracy against more than one defendants, like presently, the plaintiff must specify, with particularity, each of the defendant’s offending conduct. The defendants cannot be grouped together without identifying which defendant has committed which wrong. [131] An example of a striking out where the pleading was found not to have shown the existence of a reasonable cause of action is the case of Renault SA v Inokom Sorp Sdn Bhd [2010] 5 MLJ 394 where the statement of claim containing the allegation of conspiracy did not set out with clarity and precision the overt acts alleged to have been done by each of the alleged conspirators in furtherance of the conspiracy. In other words, the plaintiff failed to plead the constituent ingredients of its claim of conspiracy. [132] Much earlier, in the case of Ng Ah Baa & Ors v Ramanda Sdn Bhd [1996] 1 CLJ 738, the Court of Appeal had this to say on allegations of conspiracy:- “Based on the evidence both in affidavits and documentary the learned Judge made a specific finding that these was no basis for the matter to go for trial, I am entirely in agreement with that finding. This Court sitting in an appellate capacity can find no reason to interfere with that finding. One aspect of the matter appears not to have been considered by the learned Judge, but in the light of his finding it makes no difference, and that is the question of general allegations of conspiracy advanced by the defendants. On my perusal of the statement of defence it seems that the defendant merely made a bare and general allegation of the conspiracy. In the statement of defence they claimed that the so called conspiracy was entered into between the manager of the plaintiffs, 1st defendant and one Mr. Cheong Wai Meng. Neither the name nor the identity of the plaintiff's manager has been disclosed in their affidavits in reply, nor has it been revealed the role played by the manager. Most important of all I find that no particulars of the alleged conspiracy has been disclosed in their affidavits. The 1st defendant in his affidavit had categorically denied the allegation of conspiracy and has sufficiently explained the circumstances heavily relied upon by the defendants in support of their allegation which explanation found favour with the learned Judge. What the defendants sought to do is merely make sweeping and general allegations of the alleged conspiracy without alluding to any particulars. The Page 37 of 39 authorities are clear on general allegations of fraud and they are equally applicable to such allegations of conspiracy. In Cannock District Council v. Kelly [1978] 1 WLR 1; in considering whether an allegation of bad faith on the part of a local authority by a tenant of its house who had been given a notice to quit, the Court of Appeal held that: If a charge of bad faith is made against a local authority, they are entitled to have it properly particularised. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularised, the pleading may be struck out. This principal should apply with greater force in cases of allegations of a conspiracy or fraud. In See Hua Daily News Sdn. Bhd. v. Tan Thien Chin & Ors. [1985] 1 LNS 131;[1986] 2 MLJ 107 the Supreme Court in considering allegations of fraud held that "the failure of the, appellants to condescend upon particulars of the fraud in their affidavits is fatal". It seems clear that on the authorities, a mere general allegation of fraud is not sufficient and the party making the allegation is required to condescend to particulars. The same principle applies to allegations of conspiracy. After giving my serious consideration I am of the view that what the defendants succeeded in raising at best is a mere suspicion and this certainly is not sufficient. The learned Judge was therefore right in ordering summary judgment and I find no merits in the present appeal and therefore dismissed it with costs here and in the Court below”. [133] As such, given the absence of particularisation of dishonest assistance and conspiracy against the defendants, in particular the fifth defendant, the statement of claim of the plaintiff must also be held to be defective and plainly unsustainable as it fails to disclose a reasonable cause of action in the tort of conspiracy or dishonest assistance against the fifth defendant (and the other defendants other than the second defendant). Conclusion [134] In view of the foregoing myriad of reasons, including in particular concerning res judicata, collateral attack of the Buy-Out Order, time limitation and insufficient particularisation in the pleadings, it is my judgment that the defendants have successfully established that the claim filed by the plaintiff against them to be obviously unsustainable under any one of the grounds stipulated under Order 18 r 19 (1) (a), (b) and (d) of the RC 2012. The writ action by the plaintiff in other words Page 38 of 39 fails to disclose a reasonable cause of action against particularly the fifth defendant, is statute-barred against the third and fourth defendants, and is frivolous and vexations and otherwise an abuse of process against all defendants under Order 18 r 19 (1) (b) and (d). [135] Accordingly, I allow enclosures 20 (first, sixth and seventh defendants), 16 (second defendant), 12 (third and fourth defendants), 15 (fifth defendant), and strike out the statement of claim of the plaintiff, with costs to all defendants. Dated: 30 January 2018 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for the Plaintiff Dato Malik Imtiaz, John Skelchy and Surendra Ananth Messrs James Monterio Kuala Lumpur Counsel for the 1st, 6th & 7th Defendant Dato Wong Rhen Yen with Emily Wong Li Yan Messrs Dennis Nik & Wong Kuala Lumpur Counsel for the 2nd Defendant Dato Seri Gopal Sri Ram, Wong Yee Chue and Damien Chan Messrs YC Wong Kuala Lumpur Page 39 of 39 Counsel for the 3rd & 4th Defendant Ooi Huey Min with Harish Nair Messrs Raja, Darryl & Loh Kuala Lumpur Counsel for 5th Defendant Mark Ho Hing Kheong Messrs Chellam Wong Kuala Lumpur