HSC Medical Inc. v 1. ) ConserveNRG Sdn. Bhd. (WA-22NCC-87-02/2024)

CONSERVENRG SDN BHD [No. Pendaftaran Syarikat: 201901021111 (1330440-A)]

VIVEK G. DHARKAR (Passport No.: Z5178954)

M. RAMANATHAN A/L S.M. MEYYAPPAN … DEFENDAN - (No. K/P: 600923-10-6815) DEFENDAN (Dalam Tindakan Asal)

CONSERVENRG SDN BHD [No. Pendaftaran Syarikat: 201901021111 (1330440-A)]

VIVEK G. DHARKAR … PLAINTIF - (Passport No.: Z5178954) PLAINTIF

ATLAS HOLDINGS LTD (No. Pendaftaran Syarikat: LI16818)

NG YEEN SEEN (No. K/P: 801111-03-5936)

HSC MEDICAL INC. … DEFENDAN - (No. Pendaftaran Syarikat Kanada No.: 1165416570) DEFENDAN (Dalam Tuntutan Balas) GROUNDS OF JUDGMENT (Enclosure 55)

This was the 2nd Defendant’s (in the Counterclaim) application to strike out the Counterclaim against her pursuant to Order 18 Rule 19(1)(a), (b), (c), and (d) of the Rules of Court 2012 (Enclosure 55) (“this Application”).

The principal ground is that the Counterclaim discloses no reasonable cause of action against the 2nd Defendant (in the Counterclaim), is scandalous, frivolous and vexatious, and constitutes an abuse of the process of the Court. Page 3 of 12 A]

The Counterclaim was filed by the 1st Defendant, Conservenrg Sdn Bhd (“Conservenrg”) and the 2nd Defendant, Vivek G. Dharkar (“Vivek”), in the main action (Plaintiffs in the Counterclaim) (collectively “the Counterclaim Plaintiffs”), against, among others, Ng Yeen Seen (“Ng”) and Atlas Holdings Ltd (“Atlas”).

Ng is a former director of Atlas, a Labuan company which has since been struck off.

The Counterclaim Plaintiffs allege that Ng gave representations concerning a glove supply transaction, and seeks to hold her personally liable for the non-performance of the contract by Atlas.

The Counterclaim Plaintiffs further allege they were induced to enter into a contract to supply gloves to the Plaintiff, HSC Medical Inc. (“HSC”), based on representations by Ng, acting on behalf of Atlas.

Payment was made into a solicitor’s client account, but the goods were never delivered. The Counterclaim Plaintiffs now seek to recover the amount paid and have named both Atlas and Ng as Defendants.

Ng contends that she merely acted in a representative capacity for Atlas, and that the Counterclaim Plaintiffs’ claim against her personally is legally misconceived. B]

Ng was not a party to the contract between Conservenrg and Atlas, and she did not assume liability in her personal capacity. Ng only acted in a representative capacity as a director of Atlas.

In this regard, the WhatsApp messages relied upon by the Counterclaim Plaintiffs do not disclose any promise or undertaking given by Ng in her personal capacity, they were made in the course of her role as representative of Atlas.

Therefore, there is no basis in law to hold Ng personally liable for the contractual default of a separate legal entity (Kepong Prospecting Ltd. & Ors v. Schmidt [1968] 1 MLJ 170).

In Brilliant Team Management Sdn Bhd v. South East Pahang Oil Palm Sdn Bhd & Ors [2007] 1 MLJ 536, the Court stressed that where individuals act in a representative capacity for their respective companies, their negotiations or communications must be attributed to the companies and not to them personally. The High Court held as follows: Page 5 of 12 “[25] The discussions, negotiations or communications between these two individuals viz the plaintiff’s director and D3 have indeed been undertaken or embarked upon for and on behalf of their respective companies and must for all practical purposes be imputed or attributed to the acts of their respective companies” (own emphasis added)

The Counterclaim, on its own pleaded facts, shows that Ng acted only as a director of Atlas. Any negotiations or assurances were conducted on behalf of the company, Atlas, and not in her personal capacity; therefore, no claim can be sustained against her individually.

The principle of privity of contract precludes the Plaintiffs from enforcing obligations against someone not party to the agreement (Kepong Prospecting (supra); Phua Siong Hoe v. RHB Bank Bhd & Anor; Persatuan Pemilik Tanah Taman Pandan (Intervenor) [2001] 6 CLJ). The doctrine remains applicable even if the company has since been struck off. C]

The Counterclaim Plaintiffs have not pleaded any facts or legal basis to lift the corporate veil. There is no allegation of sham, facade, or misuse of corporate structure, which is a necessary precondition to pierce the veil (Solid Investments Ltd v. Alcatel-Lucent (M) Sdn Bhd (previously known as Alcatel Page 6 of 12 Network Systems (M) Sdn Bhd) [2014] 3 MLJ 784 (FC); Lam Kam Loy & Anor v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355

Allegations of fraud or misrepresentation or fraudulent misrepresentations were not pleaded with sufficient particularity against Ng.

There is no identification of the specific representation, its falsity, the reliance placed, or the loss suffered. In CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati) (2015) 7 CLJ 289, the Court of Appeal held: “[14] Now, lawyers dealing with civil litigation have been traditionally been admonished to treat the issue of alleging fraud very cautiously and carefully. Lord Selborne LC in John Wallingford v. Mutual Society and the Official Liquidator [1880] 5 App Cas 685 at p. 697 stated the general rule. He said: With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. (See also Malayan Banking Berhad v. Lim Tee Yong & Ors [1994] 4 CLJ 558; [1994] 3 MLJ 715 where Mohd Hishamudin Yunus JC (as he then was) referred and agreed with the above statement). Page 7 of 12 [15] In Davy v. Garrett [1878] 7 Ch D 473, Thesiger LJ at p. acknowledged the principle as follows: In the Common Law Courts no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts … It may be not necessary in all cases to use the word “fraud” … It appears to me that a Plaintiff is bound to shew distinctly that he means to allege fraud. In the present case facts are alleged from which fraud might be inferred, but they are consistent with innocence. [16] In Mallal’s Supreme Court Practice, 4th edn, at pp. 204 to 205, it is stated that: Particulars of fraud must be pleaded. A general allegation of fraud, however strong the words used, where there is no statement of circumstances relied on as constituting the alleged fraud, is insufficient even to amount to an averment of fraud of which any court ought to take notice: John Wallingford v. The Directors of the Mutual Society and the Official Liquidator thereof (1879-80) 5 App Case 685 at pp 697, 701 and 709.” ….. “[19] As can be readily observed, the foregoing particulars did not reveal that the issue of fraud has been raised and the particulars of conspiracy are vague and general. Page 8 of 12 [20] The plaintiff alleged that the third defendant/bank was aware of her rights and interests over the said property and conspired with the other defendants to deny the plaintiff’s rights. However, the plaintiff did not provide the particulars in respect of the bank’s involvement and how the conspiracy took place. Such vague and general averments of fraud and/or conspiracy did not assist the plaintiff. The third defendant cannot be expected to meet a case upon mere allegations of fraud and/or conspiracy without any definite particulars being furnished. [21] It is clear that as a general rule, the more serious the allegations of misconduct (fraud and/or conspiracy in the instant appeal), the greater is the need for the particulars to be given which explain the basis for the allegation.” (own emphasis added)

The Counterclaim Plaintiffs also relied on the principle that an agent may incur personal liability when contracting on behalf of a principal, particularly where the agent signs in their own name or where the principal is not clearly disclosed. However, in this case, the principal, Atlas, was at all times clearly identified as the contracting party, and Ng acted in a disclosed representative capacity. However, the presumption of personal liability does not apply where the principal is disclosed and the agent does not sign in their own name. Here, the materials clearly show Atlas was the disclosed principal.

Further and in any event, the “doctrine of agency” was not pleaded in the Counterclaim (Giga Engineering & Construction Sdn Bhd v. Yip Chee Seng & Sons Sdn Bhd &Anor [2015] 9 CLJ 537 (FC)). D] CONSTRUCTIVE TRUST OR KNOWING RECEIPT NOT

The Counterclaim discloses no element of trust law. There is no identifiable property that can constitute the subject matter of a trust, and thus no foundation for the imposition of a constructive trust. Ng’s position is that she did not receive or retain any personal benefit from the impugned transaction, and the materials filed on her behalf support this. While the Plaintiffs in the Counterclaim have alleged otherwise, those allegations are unparticularised and unsupported by evidence of any specific property held by Ng.

In Woolley Development Sdn Bhd v. Tiara Contours Construction Sdn Bhd [2016] 2 CLJ 610, the Court of Appeal made clear that a constructive trust requires, at minimum, the existence of trust property, acquisition of ownership by the alleged trustee, and unconscionable conduct. None of these elements are present here.

The Counterclaim against Ng is therefore misconceived and unsustainable. Page 10 of 12 E]

There are no factual disputes in the present case requiring a trial. The Counterclaim against Ng is misconceived, as she cannot be made personally liable for the acts of Atlas without contractual privity or fraud. Hence, the Counterclaim against her is unsustainable (Bandar Builder Sdn Bhd v. United Malayan Banking Corp Bhd [1993] 3 MLJ 36).

The Counterclaim appears to be motivated by the inability to pursue Atlas after it was struck off. It is therefore a misuse of the Court’s process to now attempt to shift that liability onto a director, Ng, with no pleaded wrongdoing.

For the reasons stated above, this Application in Enclosure 55 is allowed with costs in favour of the 2nd Defendant/Ng. Dated this 8th day of September, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 11 of 12 COUNSEL FOR THE PLAINTIFF / 3RD DEFENDANT IN : Azira Aziz Messrs Azira Aziz No. 22A, Jalan Wawasan 2/3, Bandar Baru Ampang, 68000 Ampang, Selangor Tel: 012-6981139 Emel: aziraaziz.law@gmail.com COUNSEL FOR THE DEFENDANTS / PLAINTIFFS IN THE : Keshvinjeet Singh (Vijaymohan together with him) Messrs Vijay Suite E-09-11, Plaza Mont Kiara, No. 2, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur Tel: 03-62113376 Emel: messrsvijay@hotmail.com COUNSEL FOR THE 2ND DEFENDANT IN THE : Srividhya Ganapathy (Eisyarmily Akhtar together with her) Messrs Muhendaran Sri The Zhongshan Building, 84A Jalan Rotan, Off Jalan Kampung Attap, 50460 Kuala Lumpur Tel: 03-22602611/2811/2911 Emel: muhendaran.sri@gmail.com Page 12 of 12 LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 18 Rule 12 ▪ Order 18 rule 19(1)(a), (b), (c), and (d)

Bacom Enterprises Sdn Bhd v. Jong Chuk [2011] 5 MLJ 820

Bandar Builder Sdn Bhd v. United Malayan Banking Corp Bhd [1993] 3 MLJ 36

Brilliant Team Management Sdn Bhd v. South East Pahang Oil

CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati) (2015) 7 CLJ 289

Giga Engineering & Construction Sdn Bhd v. Yip Chee Seng &

Kepong Prospecting Ltd. & Ors v. Schmidt [1968] 1 MLJ 170

Lam Kam Loy & Anor v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355

Phua Siong Hoe v. RHB Bank Bhd & Anor; Persatuan Pemilik

Solid Investments Ltd v. Alcatel-Lucent (M) Sdn Bhd (previously known as Alcatel Network Systems (M) Sdn Bhd) [2014] 3 MLJ 784

Woolley Development Sdn Bhd v. Tiara Contours Construction