Janajaya Emas Sdn Bhd v Intra Alliance Consult Sdn Bhd (WA-22NCC-610-08/2023)

Janajaya Emas Sdn Bhd (Company No: 1287639-M)

Ahmad Basuki bin Abdullah (IC No: 600223-03-5585)

Tee Swee Teong (IC No: 551118-10-5897) … Defendants in Counterclaim GROUNDS OF JUDGMENT INTRODUCTION [1] Before the court is a claim for outstanding fees under a consultancy agreement arising from a large-scale housing development project, where the plaintiff contends that the defendant developer has failed to honour its payment obligations under a binding contract for services rendered. The defendant resists the claim on three distinct and separately-pleaded grounds: that the agreement is unenforceable for illegality under a statutory licensing regime; that it is voidable for fraud; and that it was in any event validly terminated before any liability to pay the claimed sums could arise. The defendant has additionally filed a counterclaim seeking, among other reliefs, a declaration that the agreement is void and the return of all moneys paid. [2] For the reasons set out below, the plaintiff succeeds in defeating the first two grounds of defence. The Agreement is neither unenforceable for illegality nor voidable for fraud. However, the defendant succeeds on the third ground, namely that the Agreement was validly terminated before the plaintiff’s claim to the outstanding fees could accrue. That finding is dispositive of the main claim. [3] The counterclaim likewise fails for want of proof of its foundational allegation. Accordingly, the plaintiff’s claim is dismissed with costs, and the counterclaim is also dismissed with costs. BACKGROUND FACTS [4] The Defendant, Intra Alliance Consult Sdn Bhd (“Intra Alliance”), is a private limited company incorporated in Malaysia. It is the developer of a forty-one-storey high-rise residential housing project in Setapak, Kuala Lumpur, undertaken under the Perumahan Penjawat Awam 1Malaysia (“PPA1M”) scheme (“the Project”). The land on which the Project was developed (“the Land”) was originally owned by Mega Meisa Sdn Bhd (“Mega Meisa”), a company associated with Mohammad Azmi bin Daud (“Azmi”) and his son Muhammad Arif bin Mohammad Azmi (“Arif”), who were the original shareholders of Intra Alliance. [5] The Plaintiff, Janajaya Emas Sdn Bhd (“Janajaya”), is a private limited company incorporated on 17 July 2018. Its director is Ahmad Basuki bin Abdullah (PW1). [6] The events giving rise to this dispute have their origins in or around mid-2017. At that time, PW1 and Dato’ Tee Swee Keong (DW3) were involved in facilitating negotiations for the acquisition by an incoming group of investors of the shares in Intra Alliance and the Land from their then-respective holders. The incoming investors were led by Dato’ Azman bin Maat (DW1) and his business partner Mustaffa Zarim (“Mustaffa bin Zarim”). Dato’ Poh Fook Yuen (“Dato’ Poh”) acted as the principal negotiator on behalf of the incoming group. [7] At the time of these negotiations, the Project was encumbered by several difficulties. There was pending litigation in respect of the Land involving one Mustapha Dorani, who had obtained judgments against the project at both the High Court and the Court of Appeal. A caveat had also been lodged on the Land. There were outstanding issues with the development order, an unresolved access road matter, and complications arising from Tenaga Nasional Berhad (“TNB”) transmission infrastructure on or near the Land. [8] On 19 July 2017, a Letter of Engagement was prepared by Messrs Azmi & Associates in connection with the proposed transaction. The letter, among other matters, recorded that PW1 had advanced personal moneys to facilitate the transaction, and set out a consultancy arrangement under which PW1 and DW3, acting through a company named Layar Kukuh Sdn Bhd (“Layar Kukuh”), were to receive the sum of RM24,000,000.00 as consultancy fees. [9] On 2 August 2017, three agreements were executed simultaneously: a) First, a Share Sale Agreement (“SSA”) was entered into between Azmi and Arif as vendors, and DW1 and Mustaffa Zarim as purchasers, with DW3 and Poh Fook Looi, also known as “Dato’ Alan”, brother of Dato’ Poh, acting as guarantors. The SSA recorded the Gross Development Value (“GDV”) of the Project as at the date of the agreement as RM511,000,000.00. b) Second, a Sale and Purchase Agreement for the Land was executed between Mega Meisa as vendor and Intra Alliance as purchaser. c) Third, a Consultancy Agreement, known as the Layar Kukuh Agreement, was entered into between Intra Alliance and Layar Kukuh. The agreement provided for a consultancy fee of 4.8% of the GDV, computed on a figure of RM510,000,000.00, payable in eight quarterly instalments. The first seven instalments were fixed at RM3,000,000.00 each. The eighth instalment was to be adjusted based on the actual GDV as certified by the company’s auditors. [10] On 27 October 2017, a board meeting of Intra Alliance was held. On 30 October 2017, a Supplementary Sale and Purchase Agreement was executed between the relevant parties. [11] Layar Kukuh subsequently encountered difficulties arising from unfiled audited accounts. Janajaya was incorporated on 17 July 2018 to serve as a replacement vehicle for the consultancy arrangement previously structured through Layar Kukuh. [12] On 18 December 2019, the housing development licence and permit for sale and advertisement (Lesen Pemajuan Perumahan dan Permit Iklan dan Jualan) for the Project was issued by the Ministry of Housing and Local Government (KPKT). [13] A Consultancy Agreement was entered into between Intra Alliance and Janajaya (“the Agreement”). The Agreement bears the formal date of 8 January 2020 and was presented for stamping on 31 January 2020. Under the Agreement, Janajaya was engaged to provide consultancy services described as dealing with the land matters of the Project, especially regarding the purchase of the property from the original landowner, and successfully launching the Project. The consultancy fee was fixed at 4.8% of the GDV of the Project, payable in eight quarterly instalments, with the first seven instalments fixed at RM3,000,000.00 each and the eighth instalment to be determined by reference to the actual GDV as certified by the company’s auditors. The Agreement further provided that the first instalment would become due within three months of the issuance of the KPKT licence. [14] Also bearing the formal date of 8 January 2020 is a letter addressed by Dato’ Tee Sien Ghee (DW2) to Intra Alliance (Exhibit D1). DW2 was at that time a director of Janajaya, a position he held from the company’s incorporation. The letter stated that Janajaya did not wish to proceed with the Agreement dated 8 January 2020 and called for a new agreement to be prepared by PW1 through a legal firm of his choosing. The letter was written on paper without official company letterhead. The date of Exhibit D1 and its authenticity are in dispute between the parties. [15] Between 27 January 2021 and 11 August 2022, Intra Alliance made a series of payments to PW1 totalling RM290,000.00. [16] A draft Consultancy-cum-Commission Agreement between Intra Alliance and Janajaya was prepared by Messrs Azmi & Associates. The draft, which ran to fourteen pages and bore a reference date of 2019, was not executed by either party. [17] DW2 resigned as a director of Janajaya with effect from 10 November 2022, pursuant to a directors’ circular resolution. On 20 February 2023, DW2 wrote a further letter to Intra Alliance. [18] Janajaya commenced these proceedings by way of Originating Summons filed on 31 January 2023. The matter was subsequently converted to a writ action. The Statement of Claim was filed on 23 August 2023. The Defence and Counterclaim was filed on 6 September 2023. The Reply and Defence to Counterclaim was filed on 9 October 2023. The trial proceeded over six days, following which written and oral submissions were received from both parties. On 30 April 2024, PW1 lodged a police report in connection with Exhibit D1. That matter had not been concluded before this court reached its decision. [19] The trial proceeded over six days, following which written and oral submissions were received from both parties. RESPECTIVE PARTIES’ PLEADED CASES AND RELIEFS SOUGHT Janajaya’s Pleaded Case [20] Janajaya pleads in its Statement of Claim that it entered into the Agreement with Intra Alliance on 8 January 2020.

has been issued. It further pleads that Intra Alliance has received all payments from the purchasers as well as the final government subsidy. Accordingly, there is nothing preventing Intra Alliance from honouring its obligations under the Agreement. [23] Janajaya denies that Exhibit D1 is a genuine termination letter. It pleads that the document was fabricated after the Originating Summons was filed. Janajaya further pleads that the document was not issued on official company letterhead and that no board resolution authorising any termination was ever passed. [24] Janajaya also relies on the continued payments made between 2021 and 2022, which it contends are wholly inconsistent with any alleged termination of the Agreement. It therefore pleads that the defence and counterclaim, in their entirety, are afterthoughts contrived for the purpose of resisting a legitimate claim. [25] The reliefs sought by Janajaya comprise declarations of breach of contract, a judgment for the sum of RM23,710,000.00, general damages, exemplary damages, interest thereon at the rate of 5% per annum from the date of filing of the writ to full satisfaction, and costs. Intra Alliance’s Pleaded Case and Counterclaim [26] Intra Alliance denies the claim and advances three alternative grounds of defence. [27] Its primary defence is illegality under Act 242. Intra Alliance pleads that the Agreement is, in substance, a contract for estate agency practice within the meaning of Section 22B(1A) of Act 242. It contends that the Agreement is one under which Janajaya agreed to act as agent for a commission in connection with the sale and purchase of land, which the recital of the Agreement itself identifies as its core purpose. [28] Since Janajaya is not a registered estate agent under Act 242, Intra Alliance pleads that Section 22C of that Act bars Janajaya from recovering any fees, commissions or remuneration for such practice in any court. Read together with Section 24 of the Contracts Act 1950, Intra Alliance contends that the Agreement is unenforceable as a contract founded upon an unlawful object. [29] Intra Alliance further pleads that, even if the Agreement were enforceable, the maximum recoverable fee under Act 242 would be capped at 3% of the sale price, being the prescribed rate for a registered estate agent. It contends that any amount claimed in excess of that rate would itself be unlawful. [30] The secondary defence is fraud under Section 17 of the Contracts Act 1950. [31] Intra Alliance pleads that DW3 and PW1 fraudulently misrepresented to DW1 and Mustaffa Zarim that the 4.8% consultancy fee was intended as a payment to the previous project owners and the landowner, Mega Meisa. It alleges that the fee was represented as additional consideration required to induce those parties to sell the land. According to Intra Alliance, the true position was that the 4.8% was intended solely as the personal commission of DW3 and PW1. [32] Intra Alliance contends that this misrepresentation induced it to enter into the Agreement as well as its predecessor, the Layar Kukuh Agreement. It therefore invokes Section 19(1) of the Contracts Act 1950, which renders a contract voidable at the option of a party whose consent was obtained by fraud. Intra Alliance accordingly elects to avoid the Agreement. [33] The tertiary defence is termination by Exhibit D1. Intra Alliance pleads that DW2, acting in his capacity as a director of Janajaya on 8 January 2020, issued Exhibit D1 communicating Janajaya’s election not to proceed with the Agreement and calling for a new agreement to be separately negotiated. [34] The counterclaim as filed sought a declaration that Janajaya was used by PW1 and DW3 to commit fraud on Intra Alliance and that Janajaya’s corporate veil should accordingly be lifted. It also sought a declaration that the Agreement is void ab initio, restitutio in integrum requiring the return of all payments made under the Layar Kukuh Agreement and/or the Agreement, and general, exemplary, and aggravated damages together with costs. [35] The counterclaim as originally filed also named Tee Swee Teong as the third defendant in counterclaim. However, that claim was withdrawn at the commencement of trial and struck off with no liberty to file afresh and no order as to costs. The counterclaim therefore proceeded only against Janajaya and PW1. ISSUES FOR DETERMINATION [36] The Issues to be Tried as filed on 13 March 2024 (Enclosure 38) raise the following formal questions. a) First, whether the Agreement dated 8 January 2020 is valid and binding upon the parties. b) Second, whether the Agreement has been terminated by the parties. c) Third, whether Intra Alliance has breached the Agreement. d) Fourth, whether Intra Alliance failed to remedy any such breach. e) Fifth, whether Janajaya is entitled to the reliefs claimed. f) Sixth, whether the defence and counterclaim are afterthoughts. g) Seventh, whether Intra Alliance is entitled to the reliefs claimed in the counterclaim. [37] Having reviewed the pleadings, the evidence adduced at trial, and the written and oral submissions of both parties, I distil the following as the substantive issues requiring determination by this court: a) Whether the Agreement is unenforceable for illegality under Act 242 (“First Ground”); b) Whether the Agreement is voidable for fraud within the meaning of Section 17 of the Contracts Act 1950 (“Second Ground”); c) Whether the Agreement was validly terminated by Exhibit D1 on 8 January 2020 (“Third Ground”); and d) Whether the counterclaim is made out (“Fourth Ground”). [38] The three grounds of defence are analytically distinct. The First and Second Grounds go to the validity of the Agreement at the point of formation. They assert, in different ways, that the Agreement ought never to have been entered into or that it was entered into on a legally vitiated basis. The Third Ground accepts that the Agreement was validly formed but asserts that it was subsequently brought to an end before Janajaya’s entitlement to payment had fully accrued. Each ground must therefore be assessed on its own terms, on its own evidentiary basis, and independently of the others. THE WITNESSES [39] Janajaya called only one witness. PW1 is Ahmad Basuki Bin Abdullah, the Director of Janajaya, the Plaintiff. His Witness Statement was marked as WSPW1. His evidence primarily relates to his role in introducing the Setapak Riviera PPA1M project parties and his claim for a consultancy fee based on the Agreement. He testified that he introduced the relevant parties and advanced RM2 million to facilitate land matters. He further testified that he had no prior knowledge of the termination letter dated 8 January 2020 and alleged that it was created only after the Originating Summons was filed and discussed during a meeting on 21 September 2023. [40] Intra Alliance called three witnesses: a) DW1 is Azman Bin Maat, the Director of Intra Alliance, the Defendant. His Witness Statement was marked as WSDW1. His evidence primarily relates to Intra Alliance’s acquisition of the project, the negotiations surrounding the purchase price, and his receipt of the termination letter cancelling the consultancy agreement. He testified that during the initial negotiations he was led to believe that the original project owners wanted 18% of the GDV, although he subsequently signed the SSA reflecting 13.2%. b) DW2 is Tee Sien Ghee, a former director of Janajaya. He is also known as “Dato’ Jim” and “Ai Ying.” His Witness Statement was marked as WSDW2. His evidence primarily relates to the issuance of the 8 January 2020 termination letter and his subsequent resignation from Janajaya. He testified that he personally signed and issued the termination letter on behalf of Janajaya, stating that the company did not wish to proceed with the Agreement. He also confirmed his resignation as a director in November 2022. c) DW3 is Tee Swee Keong, a business partner of PW1 and the father of DW2. He is also known as “Dato’ Tee” and “Ah Keong.” His Witness Statement was marked as WSDW3. His evidence primarily relates to the initial introduction of the project parties and the arrangement regarding the commission fee. He testified that he and PW1 acted as introducers for the land transaction and were supposed to receive a commission for introducing the parties. ANALYSIS AND FINDINGS FIRST GROUND: ILLEGALITY UNDER ACT 242 Submissions of Janajaya [41] Janajaya submits that the services it provided to Intra Alliance were genuine, multi-dimensional consultancy services that extended materially beyond the scope of estate agency practice as defined in Act 242. Counsel for Janajaya identified the following components of the services rendered. a) Janajaya facilitated the corporate acquisition of Intra Alliance by the incoming shareholders. Counsel submitted that this was a corporate takeover exercise, rather than a property brokerage transaction. b) Janajaya assisted in resolving the Mustapha Dorani litigation through the introduction of Messrs Azmi & Associates, who successfully appeared in the Federal Court on behalf of Intra Alliance. c) PW1 personally advanced capital totalling approximately RM2,265,000.00 by way of loans to various parties to enable the transaction to proceed. d) Janajaya assisted in resolving issues affecting the Land, including matters relating to the development order, access road, TNB infrastructure, and squatters. e) Janajaya played a developmental and advisory role in connection with the launch of the Project. [42] Counsel submitted that the Agreement, when read as a whole, was a contract for a complex advisory and facilitation role that extended well beyond the functions ordinarily performed by an estate agent. Counsel further argued that the recital language referring to “land matters” and the “purchase of the said Property” must be understood in the context of all the services actually rendered, and not viewed in isolation. [43] Although counsel for Janajaya did not substantively dispute Intra Alliance’s reliance on Ong Thean Chye & Ors v Tiew Choy Chai & Anor [1994] 1 CLJ 674 (CA), it was maintained that the Agreement was not, in its essential character, an estate agency agreement. Submissions of Intra Alliance [44] Intra Alliance submits that the Agreement is, on its face, a contract for estate agency practice caught by the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 (“Act 242”). The recital of the Agreement identifies the purpose of the engagement as being “for the purpose of dealing with the land matters of the Project... especially regarding the purchase of the said Property from the landowner,” which, counsel submitted, falls squarely within the definition of estate agency practice in section 22B(1A) of Act 242. [45] Counsel further submitted that the mere use of the label “consultancy” cannot transform what is in substance an estate brokerage arrangement into something outside the scope of the Act. [46] Intra Alliance relied on the Court of Appeal decision in Ong Thean Chye & Ors v Tiew Choy Chai & Anor for the proposition that an agreement providing for a commission in connection with the purchase and sale of property is subject to Act 242 regardless of how it is described. [47] Counsel also relied on the Court of Appeal decision in Kunci Semangat Sdn Bhd v Thomas Varkki M V Varkki & Anor [2022] CLJU 424 for its analysis of the 2011 and 2017 amendments to Act 242. Further reliance was placed on Matad Sdn Bhd v Ng Chee Keong [2004] 2 CLJ 99 (CA) and Teh Eng Peng @ Teh Joo v Teh Swee Lian [2006] 1 CLJ 249 (CA) for the proposition that an ongoing system or practice of estate agency falls within the ambit of the Act. [48] Intra Alliance additionally relied on DW3’s unchallenged admission in his witness statement that he and PW1 were accustomed to introducing parties to property transactions and receiving commission for doing so. Counsel submitted that this admission established the requisite system or practice of estate agency. [49] Finally, Intra Alliance submitted that even if the Agreement were not wholly void, the maximum recoverable fee would in any event be capped at 3% of the sale price, being the prescribed rate applicable to registered estate agents, particularly since both PW1 and DW3 described themselves as “introducers.” Analysis [50] The statutory prohibition in Section 22C of Act 242, read with Section 24 of the Contracts Act 1950, is a bright-line rule: if an agreement is caught by Act 242, the party performing the prohibited service cannot recover in court, regardless of the work actually done. The burden of establishing that the Agreement is caught by Act 242 rests upon Intra Alliance, as the party asserting the defence, and the standard of proof is the civil standard on the balance of probabilities. [51] The definitional provision is Section 22B(1A) of Act 242, which defines estate agency practice as, among other things, acting as an agent for a commission in respect of the sale or purchase of land, or in making known the availability of land for such transactions. The Court of Appeal in Ong Thean Chye v Tiew Choy Chai confirmed the applicability of this provision to commission arrangements dressed in consultancy language where the substance of the engagement is the introduction of parties to a property transaction. The Court of Appeal in Kunci Semangat v Thomas Varkki confirmed that the 2011 and 2017 amendments to Act 242 did not abrogate the earlier principle from Matad v Ng Chee Keong that a one-off transaction is not ordinarily caught by the Act unless a system or ongoing business of such practice is demonstrated. These are the operative principles. [52] I accept that DW3’s evidence in his witness statement, specifically his answer to question 10, which states that when parties are introduced to land transactions “kami akan mendapatkan komisen” and which DW3 confirmed under examination in chief, establishes a pattern of practice. That evidence went unchallenged in cross-examination, and under the rule in Wong Swee Chin v Public Prosecutor [1980] 1 LNS 138 (FC), extended to civil proceedings in Aik Ming (M) Sdn Bhd & 8 Ors v Chang Ching Chuen & 3 Ors [1995] 3 CLJ 639 (CA), the unchallenged evidence is to be treated as accepted. DW3 further confirmed that neither he nor PW1 holds a licence as a registered estate agent. These are material factors in favour of Intra Alliance’s illegality argument. [53] However, the critical question is not whether PW1 and DW3 have engaged in estate-agency-type introductions as a general matter, but whether the Agreement in this specific case is, in substance and in its essential character, a contract for estate agency practice within the Act. The principle requires a qualitative assessment of the nature and scope of the engagement actually contracted for. Having regard to all the evidence, I am not satisfied that the engagement, fairly characterised, is properly described as estate agency practice. [54] The engagement here went materially beyond any ordinary estate agency function in at least four respects. [55] First, the transaction involved the corporate acquisition of Intra Alliance itself. It was a share sale and restructuring exercise involving multiple parties, guarantors and ancillary agreements. It was not merely a transaction for the purchase and sale of land. PW1 was involved in identifying, introducing and facilitating the corporate takeover. That function has no analogue in ordinary property brokerage. [56] Second, PW1 personally advanced capital by way of loans totalling approximately RM2,265,000.00 to facilitate the transaction. Such conduct falls wholly outside the scope of estate agency practice. Estate agents may introduce and broker transactions, but they do not ordinarily finance them personally. [57] Third, the resolution of the Mustapha Dorani litigation through the introduction of Messrs Azmi & Associates, which resulted in a successful application before the Federal Court, constituted a legal and commercial intervention unrelated to property brokerage. The litigation posed a serious threat to the viability of the Project, and its successful resolution carried considerable commercial significance for Intra Alliance. [58] Fourth, DW1 himself confirmed during cross-examination that the scope of services under the Agreement extended beyond the mere execution of the sale and purchase agreement. In response to a suggestion that there was no further role to be played, DW1 stated: “Bukan. Ada peranan. Dia kena ada.” This concession, made in the context of discussing the scope of the Agreement, militates against characterising the engagement as a simple brokerage arrangement. [59] I further note that the Agreement’s recital, while referring to “land matters” and “purchase of the said Property,” also refers to “successfully launch the Project”. That language carries a developmental and advisory dimension extending beyond mere brokerage. The engagement is perhaps best understood as a multi-component arrangement. One element involved facilitating a property transaction, but other elements went materially further. [60] Where an engagement is composite in character and the element falling within Act 242 is not the dominant or sole purpose, the court is required to assess the substance of the whole rather than seize upon a single descriptive phrase. Having done so, I am not satisfied on the balance of probabilities that the Agreement is, in its essential character, caught by Act 242. [61] The illegality defence accordingly fails. I therefore find in favour of Janajaya on the First Ground. SECOND GROUND: FRAUD UNDER SECTION 17 OF THE CONTRACTS ACT 1950 Submissions of Intra Alliance [62] Intra Alliance’s fraud case rests primarily upon the witness statement of DW3, which contains a passage of cardinal importance. At question and answer 2 of his witness statement (Enclosure 49), DW3 stated, in its material parts: “4. Mereka telah bersetuju untuk berbincang mengenai perkara ini dan saya dan Basuki telah memaklumkan kepada Datuk Azman dan Dato Poh bahawa Azmi dan Arif telah bersetuju untuk melepaskan hak mereka melalui penjualan saham Defendan dengan harga 18% daripada Gross Development Value Projek tersebut.

Sebenarnya mereka hanya mahukan 13.2% sahaja daripada GDV dan baki 4.8% adalah komisen bagi saya dan Basuki.

Tetapi kami tahu yang 4.8% fi untuk komisen jual beli Hartanah tu adalah terlampau tinggi dan bahawa Datuk Azman dan Dato Poh tidak akan bersetuju untuk memberikan komisen pada kadar tersebut.

Oleh itu, kami telah memaklumkan kepada mereka bahawa 4.8% itu adalah untuk bayaran kepada pihak-pihak lain juga, termasuk tuan tanah Mega Meisa Sdn Bhd.

Walaupun kami tahu sebenarnya adalah untuk komisen kami semata-mata tetapi kami tahu sekiranya dinyatakan seperti itu, Datuk Azman dan Dato Poh tidak akan bersetuju kepada kadar komisen tersebut.” [63] Intra Alliance submitted that this passage constitutes a direct, on-the-record admission by DW3. First, that he and PW1 represented to DW1 and Dato’ Poh that the previous owners wanted 18% of the GDV when in truth the owners only wanted 13.2%. Second, that he and PW1 specifically represented that the 4.8% was for payment to “other parties including the landowner Mega Meisa” when in truth it was their own personal commission. Third, that they made these representations because they knew DW1 and Dato’ Poh would not have agreed to the 4.8% if it had been disclosed as their personal commission. [64] Intra Alliance submitted that this amounted to a textbook case of fraud within section 17(a) of the Contracts Act 1950, namely the suggestion of a fact which is not true by one who does not believe it to be true. [65] Intra Alliance also relied on DW1’s evidence as to his subjective belief at the time of contracting. DW1 testified that he understood the 4.8% to be money belonging to the previous owners and channelled through a separate vehicle so as to avoid public declaration. He further testified that it was only in late 2019 that he discovered the true position. [66] Intra Alliance further submitted that the fraud allegation is not merely generic. It is specifically particularised. The alleged false representation was that the 4.8% was for payment to other parties, including Mega Meisa. Intra Alliance contended that this statement was made with the specific knowledge that it was untrue and for the specific purpose of inducing DW1’s agreement to the rate. [67] Intra Alliance submitted that these elements satisfy all the requirements of fraud under section 17(a) of the Contracts Act 1950 and bring the Agreement within the avoidance provision of section 19(1) of the Contracts Act 1950. Submissions of Janajaya [68] Janajaya’s response to the fraud ground is developed on two fronts. The first is doctrinal. Janajaya submits that there is no evidence that DW1 was actually induced by the alleged misrepresentation to enter into the Agreement. The second is documentary. Janajaya points to the Intra Alliance board minutes dated 27 October 2017, which separately and expressly record the 13.2% and 4.8% allocations as two distinct entitlements going to different identified parties. Janajaya submits that the existence of those minutes, signed by DW2 and DW3 at a board meeting of Intra Alliance, is flatly inconsistent with the proposition that the 4.8% was concealed as part of the previous owners’ entitlement. [69] Janajaya further pointed to the SSA and SPA as confirming that the combined consideration attributable to the previous owners and Azmi amounts to only 13.2% of the GDV, and not 18%. Janajaya submitted that if DW1 had truly been told that the previous owners wanted 18%, the very documents he himself signed in their favour would have informed him otherwise. [70] Janajaya also submitted that the failure of Intra Alliance to call as witnesses the previous owners’ representatives (Azmi and Arif) and the landowner Mega Meisa Sdn Bhd, who were the parties whose supposed entitlement was said to have been misrepresented, is fatal to the fraud case. Those witnesses would have been the most material evidence on whether the misrepresentation was in fact made and whether it was in fact believed and relied upon. Their absence leaves the allegation unsupported by the corroboration it most required. Legal Framework [71] The applicable law is not in dispute. Section 17(a) of the Contracts Act 1950 defines fraud as including “the suggestion, as to a fact, of that which is not true, by one who does not believe it to be true.” Section 19(1) provides that a contract whose consent was caused by fraud is voidable at the option of the party whose consent was so caused. The Federal Court in Letchumanan Chettiar Alagappan (as Executor to SL Alameloo Achi (Deceased)) & Anor v Secure Plantation Sdn Bhd [2017] 5 CLJ 418 confirmed that fraud in civil proceedings requires proof of an intentional misrepresentation of fact made to induce another party to enter into a contract to his detriment. The Federal Court in Lai Fee & Anor v Wong Yu Vee & Ors [2023] 4 CLJ 1 confirmed that once fraud is established, the contract is voidable by operation of Section 19(1). The Court of Appeal in Ng Ah Ba & Ors v Ramanda Sdn Bhd [1996] 1 MLJ 62 confirmed that fraud must be established on the particular facts pleaded, with precision, and not merely on general impression or inference. Fraud being a serious allegation, proof of it must be correspondingly rigorous. Analysis [72] I approach the fraud analysis by first acknowledging the considerable weight of DW3’s admission. The passage reproduced above is not equivocal. DW3 stated in terms that he and PW1 told DW1 and Dato’ Poh that the previous owners wanted 18% of the GDV when in truth they wanted only 13.2%, and that he and PW1 specifically represented that the 4.8% was for payment to other parties including Mega Meisa, when in truth it was their own commission. These statements, if accurate, describe conduct that satisfies the definitional elements of Section 17(a) with a high degree of particularity: there is a specific false suggestion of fact, made by a person who did not believe it to be true, plainly directed at obtaining DW1’s agreement to the fee. [73] I am also conscious that the law of fraud does not lightly forgive deliberate misrepresentation in the inducement of contracts, and that DW3’s admission on its face reaches a level of candour that is unusual in contested fraud proceedings. The admission is made in his own witness statement, filed on behalf of Intra Alliance, and constitutes evidence which the court must take seriously. [74] Nevertheless, having given full weight to DW3’s admission, I am ultimately not satisfied that the fraud allegation has been established against the Agreement, the Janajaya Agreement of 8 January 2020, on the balance of probabilities. My reasons are as follows. [75] First, and most fundamentally, the documentary evidence generated by Intra Alliance itself at the time of the original transaction contradicts the core premise of the fraud. [76] The Intra Alliance board minutes of 27 October 2017 separately and expressly identify 13.2% and 4.8% as two distinct allocations going to two distinct sets of recipients. The 4.8% is separately itemised as attributable to the consultancy arrangement with Layar Kukuh. It is not absorbed into or presented as part of the owners’ 13.2%. [77] If the fraud was that the 4.8% was presented to DW1 as part of the previous owners’ entitlement, one would expect the board minutes to reflect that bundled presentation. They do not. They record the 4.8% as a separate consultancy fee. [78] Those minutes were signed by DW2 and DW3, both of whom were present at the board meeting. The minutes are a contemporaneous record of what was known and formally approved at board level within Intra Alliance on 27 October

They are flatly inconsistent with the proposition that the 4.8% was concealed as part of the previous owners’ money. [79] In cross-examination, DW3 was confronted with the board minutes. Counsel for Janajaya drew DW3’s attention to pages 298 and 299 of Bundle B1, which contain the board minutes, and asked him, in substance, whether the document showed that 13.2% was allocated to Azmi and the previous owners while 4.8% was separately identified for Layar Kukuh and Janajaya. [80] While DW3 avoided confirming the 4.8% entry, he ultimately conceded, in response to counsel’s reference to the document, that his witness statement claiming the previous owners wanted 18% was untrue. This was because the document clearly recorded an allocation of 13.2%. The evidence from DW3’s cross examination is borne out as follows: a) When asked to confirm the 4.8% fee to Layar Kukuh/Janajaya Emas written in the document, DW3 dodged the question and pointed out a cancellation (potong) on the document, stating he was unsure and someone else would need to be asked: “MH: ...ada fee bayaran kepada Layar Kukuh Sdn Bhd sebanyak 4.8% of GDV. DW3: Saksi tunjuk kepada… MH: Potong. Itu saya pun tak tahulah. Saya mahu tanya dia. DW3: Ini saya tak berapa, kena tanya orang lainlah.” b) Counsel then directed his attention to the 13.2% allocation for the landowners/previous shareholders. DW3 admitted it was written there. Consequently, when counsel suggested his witness statement claiming they wanted 18% was untrue based on this 13.2% documentary evidence, DW3 agreed: “MH: Setuju dengan saya nombor 9, Fee kepada landowner/buying rights from Azman/Ariff. 13.2% GDV ada tulis di situ. DW3: Betul, sini ada tulis. MH: Maka berdasarkan dokumen ini juga saya cadangkan bahawa jawapan-jawapan Dato’ Tee di dalam penyata saksi yang menyatakan Azmi, Ariff dan Mega Meisa mahukan 18% jumlah GDV adalah tidak benar. Maaf, saya tambah sedikit. Ini kerana dokumen tersebut dengan jelas menunjukkan 13.2%. DW3: Setuju.” [81] In re-examination, counsel for Intra Alliance attempted to rehabilitate DW3’s evidence. However, the essential concession remained. The document itself contradicted his claim that the previous owners were entitled to 18%. [82] That concession undermines the fraud narrative from within Intra Alliance’s own evidence. DW3, who is alleged to have made the misrepresentation, personally signed a document at an Intra Alliance board meeting which separately and transparently recorded the 4.8% as a consultancy fee. [83] Second, the SSA and the SPA, which are the foundational financial documents of the entire transaction, record a combined consideration for the previous shareholders and Mega Meisa amounting to 13.2% of the GDV. These documents were signed by DW1 himself as purchaser. If DW1 had truly been told that the previous owners wanted 18%, the documents he signed in their favour, which record only 13.2%, would on their face have revealed the falsity of that representation. [84] DW1’s account is that when he signed the agreements he was under the impression that 13.2% was one part and 4.8% was a further part, both comprising the owners’ total entitlement of 18%. That account is not consistent with his having studied and signed the documents, which record the owners’ entitlement at 13.2% in the operative provisions and make no mention of any further 4.8% as belonging to the owners. [85] A purchaser who agrees to pay 13.2% documented in the SSA and SPA, while simultaneously believing he is paying a further 4.8% to the same vendors through a different route, has not been the victim of a misrepresentation so much as of a confusion of his own. The misrepresentation alleged must not only be made, but must also operate upon the mind of the person to whom it is made. On the evidence, DW1’s understanding is more consistent with confusion than with the specific and operative deception of which fraud is constituted. [86] Third, DW1’s evidence on the fraud issue is, as I have noted, internally inconsistent. His evidence included: “So, apabila dia cakap 18% tu saya beranggapan ini adalah kemahuan pemilik tanah dan juga pemegang share jadi saya tidak ada tanggapan apa-apa jadi saya bersetuju secara dasarnya 18% tetapi apabila bila saya menandatangani perjanjian jual beli perjanjian share holder tu disitu saya tengok dah ada Azmi dan Arif dia kata 13.2, 4.8% ni waktu tu saya tak anggap lagi sebagai satu benda ni satu kelainan sebab dia kata 4.8% akan dimasukkan ke agreement lain jadi saya beranggapan 18% ni adalah kepunyaan pemilik tanah dan juga pemegang share holder jadi dalam hal yang sedemikian jadi saya faham bila bercakap 4.8% tu ada benda yang hidden yang kepentingan tuan punya tanah lain, syarikat lain.” [87] This passage reveals that DW1’s understanding was based on his own private assumption at the time of the transaction. He himself says that he saw the 13.2% and 4.8% split when signing the agreements, but assumed that the 4.8% was a hidden payment for the previous owners. That level of unilateral assumption is not consistent with evidence of a specific, operative misrepresentation that induced his assent. [88] A party who relies on his own assumptions to contradict the plain text of the documents he is signing cannot establish that any particular representation caused him to enter into the agreement. [89] Fourth, and independently dispositive on the specific question of the Janajaya Agreement, there is a further reason why the fraud ground fails against that Agreement specifically. DW3’s own witness statement records that it was “sekitar akhir tahun 2019, Dato Poh dan Datuk Azman dapat tahu bahawa bayaran 4.8% tersebut adalah komisen bagi saya dan Basuki semata-mata.” DW1’s own witness statement likewise states that after the Consultancy Agreement was signed, he discovered that the 4.8% was purely DW3’s and PW1’s commission, and not attributable to Mega Meisa or the previous owners. [90] The Janajaya Agreement was negotiated and executed in late 2019, which is the very same period in which DW1 says he discovered the true position. If DW1 had by late 2019 discovered that the 4.8% was the personal commission of PW1 and DW3, then at the time the Janajaya Agreement was being negotiated and executed, DW1 was no longer acting under any misrepresentation-induced ignorance as to the true character of the fee. [91] A party who knows the truth about a representation at the time of contracting cannot thereafter avoid a contract on the ground of misrepresentation in respect of that very representation. The fraud defence against the specific Agreement which forms the subject matter of this suit accordingly fails on this ground as well. [92] Fifth, the failure of Intra Alliance to call Dato’ Poh as a witness is a significant gap. Dato’ Poh was the lead negotiator on the purchasers’ side and, on DW3’s account, one of the two persons to whom the alleged misrepresentation was directly made. His evidence as to what was specifically said to him and what he understood would have been the most direct evidence available on the question of the operative effect of the alleged misrepresentation. His absence leaves the allegation short of the level of corroboration which the nature and gravity of a fraud allegation demands. [93] Similarly, the previous owners, namely Azmi and Arif, as well as the landowner Mega Meisa, who are said to have been the persons whose supposed entitlement was misrepresented, were not called. Their testimony would have established what they had actually been promised and paid, whether the representation that they wanted 18% or a portion of the 4.8% was in fact made, and what their actual position was. Their absence deprives the fraud case of a central pillar of corroborative evidence. [94] Taking the evidence as a whole, I acknowledge DW3’s admission as a serious and troubling statement. It discloses deliberate framing of the fee at the time of the initial negotiations. However, the specific fraud asserted, namely that the 4.8% was represented to DW1 as money belonging to the previous owners and that DW1 was thereby induced to enter into the Agreement, has not been established to the requisite standard. [95] The board minutes dated 27 October 2017 affirmatively refute the concealment premise by separately recording the 4.8% as a consultancy fee. The financial documents signed by DW1 record only 13.2% as the owners’ entitlement. DW1’s own account of his understanding is based on his own private assumptions and is not evidence of operative reliance upon a specific false representation. The Janajaya Agreement itself was negotiated and executed after the point in time when, on DW1’s own account, he had already discovered the true position. Further, the most material witnesses on the alleged misrepresentation were not called. [96] For all these reasons, I am not satisfied that Intra Alliance has established on the balance of probabilities that its consent to the Agreement was caused by fraudulent misrepresentation within section 17 of the Contracts Act

The Second Ground therefore fails. I find in favour of Janajaya on the Second Ground. THIRD GROUND: TERMINATION BY EXHIBIT D1 Submissions of Janajaya [97] Janajaya submits that Exhibit D1 is a fabrication, contrived and produced by DW2 only after the Originating Summons was filed in January 2023, and that it was never a genuine document issued on 8 January 2020. Janajaya advances six objections to the efficacy of Exhibit D1. [98] First, the absence of official company letterhead is said to be suspicious and inconsistent with a genuine communication issued by a director on behalf of the company. [99] Second, the absence of a board resolution of Janajaya authorising the termination means there was no corporate sanction for DW2’s act. Janajaya submits that a director acting alone, without board authority, cannot bind the company in a matter as significant as terminating a major commercial agreement. [100] Third, the coincidence of the date of Exhibit D1 with the date of the Agreement, both bearing the date 8 January 2020, is said to be inherently improbable and suggests that Exhibit D1 was backdated to match the Agreement rather than genuinely issued on that date. [101] Fourth, Exhibit D1 was not raised or relied upon in any prior correspondence, affidavit, or pleading before the Originating Summons was filed. Janajaya submits that there is therefore no contemporaneous evidence that the letter existed before it surfaced in the litigation. [102] Fifth, Intra Alliance continued making payments totalling RM290,000.00 between January 2021 and August 2022, more than a year after the alleged termination. Janajaya submits that this conduct is wholly inconsistent with any genuine belief that the Agreement had already been terminated. [103] Sixth, the draft Consultancy-cum-Commission Agreement bearing the date 2019 cannot, according to Janajaya, have been prepared in response to a termination allegedly occurring in January 2020, since the draft predates the alleged termination itself. [104] On the issue of continued payments, Janajaya relied on Tenaga Nasional Bhd v Pearl Island Resort Development Sdn Bhd [2014] 8 MLJ 213 (HC) and Orix Factoring Malaysia Sdn Bhd v E Furnishings International Sdn Bhd & Ors [2010] 9 MLJ 65 (HC) for the proposition that continued payment after an alleged termination constitutes an acknowledgment of the agreement’s continued subsistence and is inconsistent with a genuine termination. Submissions of Intra Alliance [105] Intra Alliance submits that the termination ground is established by a convergence of evidence. DW2 was a director of Janajaya on 8 January 2020, a fact which is uncontested and confirmed by the resignation notice dated 10 November 2022. As a director, DW2 had full authority to communicate Janajaya’s position on a contractual matter. His evidence that he wrote and issued Exhibit D1 on that date was consistent, measured, and unimpeached. [106] Intra Alliance further submits that the absence of official letterhead does not affect the legal efficacy of the communication, which is clear in its identity, addressee, and content. As to the absence of a board resolution, Intra Alliance invoked the rule in Royal British Bank v Turquand

6 E&B 327 (Court of Exchequer Chamber), as expounded by the Federal Court in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1998] 1 CLJ 793. Intra Alliance submits that, as an outsider, it was entitled to assume that any internal corporate requirements had been satisfied. [107] PW1’s own admission that the Agreement was executed in late 2019 is said to explain the coincidence of dates. Intra Alliance further submits that the sequence involving the draft Consultancy-cum-Commission Agreement, which PW1 admitted was prepared after the Janajaya Agreement, corroborates the termination narrative. The email forwarding the draft, which PW1 admitted existed but did not produce, would, according to Intra Alliance, have conclusively established the date of the draft. [108] Intra Alliance also submits that the post-execution payments were not made pursuant to the Agreement. DW2 testified under cross-examination that those continued payments were in fact repayments of a loan. Intra Alliance further contends that Janajaya’s counsel failed to challenge DW1 in cross-examination on the reason for those payments. Accordingly, DW1’s evidence on the termination issue stands unchallenged. Analysis DW2’s Directorial Authority [109] The starting point is the legal capacity of DW2 to issue Exhibit D1. It is common ground, confirmed by the evidence and the statutory records, that DW2 was a director of Janajaya on 8 January 2020. PW1 explicitly conceded this. He further conceded that DW2 resigned his directorship on 10 November 2022. DW2 therefore had full directorial authority on the date of Exhibit D1. A director of a company acting within the scope of his authority is competent to communicate the company’s position on contractual matters, including to communicate an election to terminate a contract. The question of whether DW2 had specific authorisation from PW1 to issue Exhibit D1 is a matter of the internal management of Janajaya, not a matter that bears upon the validity of the communication as against Intra Alliance. The Turquand Rule and the Absence of a Board Resolution [110] Janajaya’s objection that the termination was ineffective for want of a board resolution is answered by the Turquand rule. In Royal British Bank v Turquand, Jervis CJ established the principle that parties dealing with a company in good faith are entitled to assume, without further inquiry, that all internal requirements and proceedings necessary to corporate authority have been duly observed. The Federal Court in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors applied and affirmed this principle in the Malaysian context. [111] The rule is squarely applicable here. Intra Alliance, as the recipient of Exhibit D1, was not required to investigate whether Janajaya’s internal procedures had in fact been complied with. It was entitled to assume that DW2, as an identified director of Janajaya, was communicating the company’s position in the proper discharge of his authority. [112] There is a further and independently compelling ground for rejecting Janajaya’s board resolution objection. Janajaya itself has not produced any board resolution authorising its entry into the Consultancy Agreement in the first place. The Agreement was entered into by PW1 and DW2 on behalf of Janajaya without any exhibited board resolution. [113] It would be a result of startling inconsistency, and indeed a selective invocation of formality, for Janajaya to seek to enforce a commercial agreement executed without board authority while simultaneously attempting to invalidate its own director’s termination of that very agreement on the basis that the termination was likewise effected without board authority. [114] That argument is accordingly rejected. The Absence of Official Letterhead [115] The absence of official company letterhead on Exhibit D1 is a matter to which I assign no determinative legal weight. A communication by a director of a company is not required to be written on official stationery in order to bind the company or communicate a legally effective position. What matters is whether the identity of the communicating party, the capacity in which he communicates, the identity of the addressee, and the substance of the communication are sufficiently clear. [116] Exhibit D1 satisfies all these requirements. It is issued under the company’s name and address. It is confirmed to have been signed by DW2 on behalf of the company. It is addressed to Intra Alliance. Its contents are wholly unambiguous. [117] The absence of letterhead may, in some circumstances, constitute one factor among others in assessing the authenticity of a document. However, it does not, in itself and standing alone, vitiate the legal effectiveness of an otherwise clear directorial communication. The Coincidence of Dates [118] The fact that Exhibit D1 bears the same date as the Consultancy Agreement, namely 8 January 2020, is, on Janajaya’s case, the most telling indication that the letter cannot be genuine. The argument advanced is that it is inherently implausible for a company to execute an agreement on a particular day while simultaneously issuing a letter terminating that very agreement on the same date. [119] Janajaya submits that if Exhibit D1 were genuine, one would ordinarily expect it to postdate the Agreement by some days or weeks. The coincidence of dates therefore, according to Janajaya, suggests that Exhibit D1 was backdated to correspond with the Agreement in an unconvincing attempt to lend the alleged fabrication a plausible temporal foundation. [120] Intra Alliance’s explanation for the coincidence of dates is, however, coherent and corroborated by PW1’s own evidence. DW1 gave evidence, and PW1 himself admitted, that the Consultancy Agreement was in substance negotiated and executed by the parties in late 2019. PW1’s admission in cross-examination was unambiguous: “MM: Saya katakan draf Consultancy Agreement itu dibuat selepas Agreement Janajaya bertarikh Disember 2019. Setuju? PW1: Selepas Janajaya? MM: Ya. Disember 2019. PW1: (inaudible 56:17) MM: Setuju? PW1: Setuju.” [121] The Agreement was therefore already in existence as an executed document before January 2020. It was subsequently presented by the parties’ solicitors for stamping in the new year, and the solicitors assigned to it the formal date of 8 January 2020 in the ordinary course of their work. The solicitors, while performing that administrative function on 8 January 2020, would not have known that DW2 had independently written and issued Exhibit D1 on the same date in the exercise of his authority as a director of Janajaya. [122] On this account, which is internally consistent and supported by PW1’s own admission, the coincidence of dates is more consistent with two unrelated events occurring on the same day than with evidence of fabrication. DW2’s Evidence on Exhibit D1 [123] DW2’s evidence on the authorship and circumstances of Exhibit D1 was, as I have said, consistent and unimpeached. In his witness statement at question and answer 2, he confirmed the circumstances in which he wrote the letter. In question and answer 6, he further confirmed: “Ya. Sepertimana dinyatakan di dalam surat Plaintif bertarikh 08.01.2020 yang telah ditandatangani oleh saya.” [124] Although DW2 testified orally during cross-examination that he himself cancelled the agreement, that evidence is consistent with DW3’s own witness statement, which records: “Oleh itu, saya telah bersetuju untuk melepaskan bahagian saya kepada fi komisen tersebut dan telah mengarahkan anak saya, Dato Tee Sien Ghee (‘Dato Jim’) untuk mengeluarkan surat bertarikh 08.01.2020 daripada Plaintif untuk membatalkan Perjanjian tersebut dan untuk Datuk Azman dan Dato Poh berbincang dengan Basuki secara terus kadar komisen beliau.” [125] The accounts given by father and son on this issue are therefore consistent and mutually corroborative. [126] In cross-examination, Janajaya’s counsel subjected DW2’s account to sustained challenge. The principal line of attack was that DW2 could not have written the letter on 8 January 2020 because the letter was not produced in any prior affidavit, bore no official company letterhead, lacked any board resolution authorising it, and bore a date suspiciously identical to that of the Agreement itself. [127] DW2 responded to all these challenges consistently and without contradiction. He explained that the letter had not been produced in any earlier affidavit because he was not aware of the litigation at the relevant time and had simply assumed that PW1 and Intra Alliance would resolve a new arrangement between themselves. When challenged on the absence of official company letterhead, DW2 maintained that a letterhead was in fact present, although he conceded that it was not the company’s usual official letterhead. He further confirmed his authority as a director to issue the communication. [128] On the material aspects of his evidence, DW2 remained unshaken throughout cross-examination. [129] Significantly, PW1 was himself cross-examined on when he first became aware of Exhibit D1. His concession in cross-examination was a pivotal one: “MM: Encik Basuki tak ada pengetahuan terus yang sama ada Ai Ying (DW2) ni, buat surat tu 08.01.2020 ke atau selepas saman pemula difailkan, setuju? PW1: Saya. MM: Ya atau tidak je. PW1: Saya tak ada pengetahuan.” [130] PW1 therefore acknowledged that he possesses no direct knowledge as to whether Exhibit D1 was written on 8 January 2020 or only after the suit was filed. His entire allegation of fabrication accordingly rests on inference and suspicion rather than direct evidence. [131] DW3 then gave evidence that PW1 did in fact know about the letter because DW3 had communicated the position to him. This was further reinforced by DW3’s evidence that it was precisely the communication underlying Exhibit D1 which led PW1 to instruct Messrs Azmi & Associates to draft the Consultancy-cum-Commission Agreement. [132] The alleged fabrication narrative loses much of its force once it is appreciated that PW1’s own admission is that he has no direct knowledge capable of contradicting the account given by DW2 and DW3. The Alleged Audio Recording [133] PW1 alleged in his evidence that he possessed a recording of DW2 and DW3 admitting that Exhibit D1 was created only in response to the filing of the Originating Summons, rather than in January 2020. He said that this recording was made during a meeting attended by himself, DW2, and DW3 after the suit had been filed. [134] During re-examination, Janajaya attempted to introduce a transcription of the recording. Intra Alliance objected to its production, and I disallowed its introduction at that late stage of the trial. Consequently, I decline to draw an adverse inference against Janajaya under section 114(g) of the Evidence Act 1950, as urged by Intra Alliance, because an adverse inference should not ordinarily be drawn against a party who did in fact attempt to adduce the evidence in question. [135] Nevertheless, PW1 subsequently lodged a police report on 30 April 2024, which he described as recording the events of that meeting and preserving his position regarding the alleged fabrication. That police report makes no reference whatsoever to any such recording. It is difficult to reconcile the existence of a recording said to contain an admission of fabrication, which would plainly constitute the most decisive evidence in the case, with its complete omission from the police report made months after the alleged meeting. [136] Accordingly, although I draw no adverse inference from the non-production of the recording at trial, its absence from the police report materially undermines PW1’s credibility regarding the alleged existence of such an admission. The Sequence of the Draft Consultancy-cum-Commission Agreement [137] The sequence of the draft Consultancy-cum-Commission Agreement is an important and largely self-contained piece of corroborating evidence on the termination ground. The draft is a fourteen-page document, prepared by Messrs Azmi & Associates, bearing the date 2019, and drafted in a form considerably more elaborate and detailed than either the Layar Kukuh Agreement or the Janajaya Agreement. It was forwarded to PW1 by Messrs Azmi & Associates by email, the existence of which PW1 admitted. The email was not produced. The draft was never signed by Intra Alliance, which refused to execute it on the ground that the fee rate remained at 4.8%. [138] Janajaya’s case on the draft is that it was prepared before the Janajaya Agreement as a proposed comprehensive framework which the parties subsequently abandoned in favour of a simpler document, namely the executed Janajaya Agreement. [139] Intra Alliance’s case is the opposite. It contends that the draft was prepared only after the issuance of Exhibit D1, at PW1’s instruction, as an attempt to formulate a new arrangement to be directly negotiated between PW1 and Intra Alliance in substitution for the terminated Janajaya Agreement. [140] Intra Alliance’s position is corroborated by DW3’s witness statement, which records: “Oleh kerana saya tidak lagi ingin mendapatkan bahagian saya, itu sebab Basuki mendapatkan khidmat Tetuan Azmi & Associates untuk kemudiannya menderafkan perjanjian yang baru... tetapi saya telah difahamkan bahawa perjanjian baru tersebut tidak dipersetujui oleh Datuk Azman dan beliau enggan menandatangani perjanjian tersebut, kerana kadar komisen masih lagi pada kadar 4.8%.” [141] This account, namely that the draft was prepared by PW1’s solicitors in response to Exhibit D1 as a proposed replacement agreement, and was ultimately rejected by Intra Alliance because the commission rate remained unchanged, is internally consistent with DW2’s evidence and is independently corroborated by DW3’s statement. [142] The decisive evidential point is PW1’s own admission during cross-examination. PW1 accepted that the draft Consultancy Agreement was prepared only after the execution of the Janajaya Agreement in December 2019. MM: Saya katakan draft consultancy agreement itu di buat selepas daripada agreement Janajaya Disember 2019, setuju? PW1: Setuju. [143] This admission is significant because it directly contradicts any suggestion that the draft Consultancy Agreement formed part of, or preceded, the parties’ original arrangements. Instead, PW1’s evidence confirms that the document was a later development. [144] This admission directly contradicts Janajaya’s narrative that the draft was prepared first. On PW1’s own evidence, the sequence was that the Janajaya Agreement came first and the draft followed thereafter. That sequence is consistent only with Intra Alliance’s account and not with Janajaya’s. [145] In their written submissions, Janajaya sought to rely upon a portion of DW2's cross-examination as corroborating their sequencing case. Before examining that evidence, it is necessary to address a preliminary concern regarding the manner in which those passages were presented. Intra Alliance, in its Reply Submissions, draws the court's attention to the fact that the transcript passages quoted by Janajaya in Enclosure 54 are drawn from at least three non-contiguous pages of the Notes of Proceedings (Enclosure 53), namely pages 583–585, 586, and 588, and are presented as though they constitute a single continuous exchange. No indication is given of the breaks between those passages. The court has independently examined the relevant pages of Enclosure 53 and is satisfied that this concern is well-founded. A composite quotation assembled from discontinuous passages of transcript, presented without any indication that material intervenes between the extracted portions, must be approached with considerable caution. The court accordingly treats the passage as reproduced in Janajaya's submissions with that reservation in mind. [146] Further, and quite apart from the manner of their presentation, the passages from DW2's cross-examination do not bear the meaning which Janajaya seeks to place upon them. At the portion of the cross-examination quoted by Janajaya, DW2 agreed that the draft bore a 2019 date and that the Janajaya Agreement at page 278 of Bundle B1 was signed on 8 January 2020. However, when counsel for Janajaya then put to him that the Janajaya Agreement was "the final agreement between the plaintiff and the defendant," DW2 expressly disagreed. He directed the court's attention to the document at page 46 of Bundle B1 as a further and more recent agreement between the parties. That document is the draft Consultancy-cum-Commission Agreement itself. The relevant exchange, at pages 588 to 590 of Enclosure 53, is as follows: "MH: Dan inilah merupakan perjanjian terakhir diantara plaintif dan defendan. DW2: Tidak setuju. MH: Tidak setuju? Ada agreement lain ke diantara plaintif dan defendan. DW2: Ada. MH: Dimana? Boleh tunjuk? DW2: Yang paling baharu ini muka surat 46. MH: 46? Tapi macam saya katakan saya cadangkan bahawa kenyataan Dato Jim adalah tidak benar kerana draf ini telah disediakan seawal tahun 2019. Dan agreement plaintif dan defendan telah ditandatangan selepas perjanjian ini iaitu 2020. DW2: Tidak setuju." [147] DW2's evidence is therefore, when read in its full context, entirely consistent with Intra Alliance's narrative. He agreed only with what the documents on their face stated. He disagreed, explicitly and without hesitation, that the Janajaya Agreement was the final agreement. He identified the draft Consultancy-cum-Commission Agreement as the more recent document, and he maintained that position when counsel put a contrary suggestion to him in re-examination. There is nothing in DW2's cross-examination, properly read, that supports Janajaya's sequencing case. [148] Janajaya’s counsel sought to minimise the effect of PW1’s admission that the draft Consultancy Agreement was prepared only after the execution of the Janajaya Agreement in December 2019 on the basis that PW1 is over sixty years of age and may have had an unreliable recollection of the sequence of events, and further argued that the 2019 date appearing on the face of the draft should be accepted at face value. I am unable to accept that submission. PW1’s admission was clear, direct, and unqualified. The suggestion that an experienced businessman of sixty-five years of age may have been confused about the order in which agreements central to his own financial interests were prepared is not a sufficient basis to disregard an unequivocal concession made in cross-examination. [149] Further, both the draft, which bears a 2019 date, and the executed Janajaya Agreement, which was executed in late 2019 but formally dated 8 January 2020, fall within the same general time frame. The date appearing on the face of the draft therefore does not establish that it preceded the Janajaya Agreement. What establishes the sequence is PW1’s own admission. I accept that admission as reflecting the true chronology of events. [150] The commercial logic underlying the respective narratives also favours Intra Alliance. Janajaya’s narrative is that the parties first caused a detailed 14-page agreement to be prepared, only thereafter to abandon it in favour of a far simpler 2-page document. That sequence runs contrary to ordinary commercial practice, which ordinarily progresses from simpler arrangements to more detailed instruments rather than in the reverse direction. [151] Intra Alliance’s account is commercially more coherent. On that account, the 2-page Janajaya Agreement was first executed. Exhibit D1 was then issued. Thereafter, the 14- page draft agreement was prepared at PW1’s initiative as a proposed replacement arrangement. That sequence is consistent with the ordinary course of commercial negotiations and accords more naturally with the surrounding evidence. The Non-Production of the Email [152] PW1 admitted in cross-examination that Messrs Azmi & Associates had forwarded the draft Consultancy-cum-Commission Agreement to him by email, and that the email accordingly exists. That email was not produced at trial despite its obvious relevance. It would have established, definitively and through independent contemporaneous evidence, the date on which the draft was sent to PW1, and would thereby have resolved the sequencing dispute without ambiguity. [153] Email correspondence relating to other transactions appears in the court bundles. In those circumstances, the non-production of this specific email, despite its admitted existence and despite its potential conclusiveness on a central disputed issue in the case, invites the inference under section 114(g) of the Evidence Act 1950 that the email, if produced, would not have supported Janajaya’s version of the sequence of events. [154] I accordingly draw that adverse inference against Janajaya. DW2’s Second Letter of 20 February 2023 [155] DW2’s second letter dated 20 February 2023 to Intra Alliance constitutes an independent piece of evidence corroborating the genuineness of Exhibit D1. In that letter, DW2 stated, among other things: “Vide my letter dated 8th January, 2020, I already make it very clear we are not to proceed with the so-called Agreement dated 8th January, 2020 but for new Agreement to be prepared by Encik Ahmad Basuki via a legal firm selected by Encik Basuki” and “I stand by my letter dated 8th January, 2020.” [156] The second letter was written voluntarily by DW2 after the Originating Summons had been filed. It refers specifically to the earlier letter dated 8 January 2020, confirms its contents, and makes clear that DW2 regarded that earlier communication as operative and continuing in effect. [157] As a matter of logic, a person who had fabricated a document solely for the purpose of litigation and was deploying it for the first time in that litigation would not ordinarily refer back to it in a subsequent letter written during the course of the same dispute as though it were an established and pre-existing document capable of straightforward confirmation. [158] The second letter therefore supports the inference that Exhibit D1 was a genuine pre-existing document written by DW2 in January 2020 and subsequently reaffirmed by him in the context of the present dispute. The Post-Execution Payments [159] The eight payments totalling RM290,000.00 made between 27 January 2021 and 11 August 2022 are, as I have acknowledged, the most substantial factual argument available to Janajaya on the termination ground. The payments were made more than a year after the alleged termination. Standing alone, that is a significant circumstance requiring explanation. [160] The authorities relied upon by Janajaya, namely Tenaga Nasional Bhd v Pearl Island Resort Development Sdn Bhd and Orix Factoring Malaysia Sdn Bhd v E Furnishings International Sdn Bhd & Ors, establish the proposition that a party’s conduct in continuing to make payments under a contract after an alleged termination may constitute an acknowledgment of the continued subsistence of that contract. Those authorities are not inapplicable to the present factual matrix, and I accordingly give the continued payments appropriate evidential weight. [161] However, the inference to be drawn from those payments depends critically upon their surrounding context and upon the evidence regarding the purpose for which they were made. Although DW2 testified during cross-examination that the continued payments related to a loan, his evidence during re-examination was more nuanced: “Yang saya tahu, Azman bagi saya cek dan saya masukkan kepada Basuki. Dia pun tidak ada beritahu saya duit itu untuk apa. Apa yang saya tahu, duit itu masuk ke akaun dia, bukan masuk ke akaun saya. Saya tidak terlibat. Sama ada mereka sudah membuat perjanjian baharu, saya tidak tahu. Jim juga tidak terlibat.” [162] The effect of this evidence is that DW2 did not in fact know the true purpose of the payments. He functioned merely as a conduit through which cheques from DW1 were passed to PW1. PW1 did not inform him what the payments related to. DW2 also did not know whether DW1 and PW1 had by then entered into some new arrangement between themselves. [163] More fundamentally, Janajaya failed to cross-examine DW1, the individual who actually made the payments, on the specific purpose for which those payments were made, despite DW1’s evidence that the Agreement had already been terminated. In those circumstances, the payments cannot properly be treated as an unequivocal acknowledgment by Intra Alliance of continuing liability under the terminated Agreement. [164] The payments are equally consistent with several alternative explanations. They may have constituted remuneration for services which PW1 continued to provide to the Project after the termination on an ad hoc basis. They may have been ad hoc commercial payments arising from some direct arrangement between DW1 and PW1 which is not otherwise in evidence. They may have represented repayment of a loan. They may also have been goodwill payments intended to encourage PW1 to accept a reduced commercial settlement. [165] The authorities relied upon by Janajaya require the payments to amount to an unequivocal acknowledgment of the continued subsistence of the Agreement. Where, as here, the payments are capable of multiple explanations, and where the maker of the payments was not challenged directly on their purpose, the payments fall short of that standard. [166] The analysis of the payments is, in any event, decisively shaped by the failure of Janajaya’s counsel to cross-examine DW1 on the purpose of those payments. The rule established by the Federal Court in Wong Swee Chin v Public Prosecutor, and subsequently extended to civil proceedings by the Court of Appeal in Aik Ming (M) Sdn Bhd & 8 Ors v Chang Ching Chuen & 3 Ors, is that a party who fails to put a material proposition to a witness in cross-examination is taken to have accepted that witness’s evidence on the point in question. [167] If Janajaya intended the court to infer from DW1’s conduct in continuing to make the payments that DW1 did not genuinely believe the Agreement had been terminated, then Janajaya was required to put that proposition directly to DW1 in cross-examination. The obvious question would have been: “Why did you continue making these payments after you say the Agreement was terminated?” That question was never put. [168] DW1’s evidence that the Agreement had been terminated therefore stands uncontradicted on this aspect. The court cannot properly draw a positive inference in Janajaya’s favour from the fact of the payments when the individual who actually made those payments was never challenged as to their purpose. DW1’s unchallenged position is that the Agreement was terminated, and that position must accordingly be accepted. [169] Janajaya’s counsel sought at oral argument to justify the failure to put the question on the basis that Intra Alliance had never, whether in its pleadings or witness statements, explained the true basis for the post-termination payments. Counsel submitted that the burden of explaining those payments rested upon the party making them, and that Intra Alliance had failed to discharge that burden. [170] That submission carries some force as a criticism of the quality of Intra Alliance’s pleading and evidential preparation. I note that the Defence and Counterclaim was indeed silent as to the basis upon which the payments were made. However, that deficiency in Intra Alliance’s pleadings does not relieve Janajaya of its own obligation to put its case to the opposing witnesses. [171] The rule in Browne v Dunn (1893) 6 R 67 (The Reports) (House of Lords) is a rule of fairness to witnesses. It is not a rule which excuses a party from confronting an opposing witness with the material propositions that party later intends to rely upon. The failure to challenge DW1 directly on the purpose of the payments is therefore a procedural omission which the court cannot cure by drawing an inference that DW1’s conduct was inconsistent with his evidence that the Agreement had been terminated. [172] DW1’s evidence on termination accordingly remains unchallenged. The Comprehensive Assessment on the Third Ground [173] Drawing together the full body of evidence on the termination ground, I am satisfied on the balance of probabilities that Exhibit D1 was a genuine letter written and issued by DW2 in his capacity as a director of Janajaya on 8 January 2020, that it unambiguously communicated Janajaya’s election not to proceed with the Consultancy Agreement, and that it had the legal effect of terminating that Agreement on 8 January 2020. That conclusion rests upon the following convergence of evidence and inference: a) the consistent, measured, and unimpeached oral evidence of DW2, which I accept as truthful; b) the corroborating evidence contained in DW3’s witness statement, which independently records DW3’s decision to relinquish his share of the fee; c) PW1’s own admission that the Agreement was executed in December 2019, which provides a coherent explanation for the coincidence of dates; d) PW1’s own admission that the draft Consultancy-cum-Commission Agreement was prepared after the Janajaya Agreement, which is consistent with the draft having been prepared in response to the termination; e) the adverse inference arising from the non-production of the email forwarding the draft, which would have conclusively resolved the sequencing issue in Janajaya’s favour had the email supported its version of events; f) the serious undermining of PW1’s credibility regarding the alleged audio recording of DW2’s and DW3’s admission of fabrication, arising from the complete absence of any reference to that recording in the police report; g) PW1’s concession that he possesses no direct personal knowledge capable of contradicting DW2’s account as to when Exhibit D1 was written; h) DW2’s second letter dated 20 February 2023, which independently corroborates the prior existence of Exhibit D1 as a genuine document; i) the application of the Turquand rule, which disposes of the objection founded upon the absence of a board resolution; j) the absence of any determinative legal significance in the objection concerning the lack of official company letterhead; and k) the inherent ambiguity surrounding the post-execution payments, viewed in light of DW2’s explanatory evidence that the payments related to a loan, together with the failure to challenge DW1 on the purpose of those payments, such that no positive inference in Janajaya’s favour can properly be drawn from them. [174] I accordingly find in favour of Intra Alliance on the Third Ground. The Agreement was validly terminated on 8 January 2020. Since the termination occurred before any instalment of the consultancy fee fell due and payable in the manner claimed, and before any payment default of the kind alleged had arisen, Janajaya’s claim for the outstanding balance of RM23,710,000.00 cannot succeed. The claim is dismissed. THE COUNTERCLAIM [175] Intra Alliance’s counterclaim, as it proceeded to trial after the withdrawal of the claim against DW3, was advanced against Janajaya and PW1. Its primary relief is a declaration that the Agreement is void ab initio for fraud, that Janajaya’s corporate veil should be lifted, and that all payments made under the Agreement should be returned by way of restitutio in integrum. General, exemplary, and aggravated damages are also claimed. [176] The counterclaim rests entirely upon the allegation that the Agreement is void ab initio for fraud. I have already found, in relation to the Second Ground, that the allegation of fraud has not been established on the balance of probabilities. The foundational premise upon which the counterclaim depends, namely a finding of fraud, is therefore unavailable. [177] All the reliefs sought in the counterclaim are consequential upon that foundational finding. The declaration of fraud cannot be granted in the absence of a finding of fraud. The order sought to lift the corporate veil of Janajaya likewise cannot be granted. While the separate legal personality of a company may in appropriate circumstances be disregarded on grounds including fraud, there is here no finding of fraud upon which the corporate veil may be pierced. [178] The claim for restitutio in integrum also fails. That remedy is directed at reversing the consequences of a void or voidable transaction. In the present case, the Agreement was neither void ab initio nor voidable for fraud. It was validly entered into and subsequently terminated. There is therefore no unjust enrichment of the character to which restitutio in integrum is directed. [179] The claims for general, exemplary, and aggravated damages are similarly premised upon the existence of fraud and necessarily fall away once the allegation of fraud has failed. [180] There is a further and independently compelling reason why the counterclaim relating to the payments must fail. The payments totalling RM290,000.00 were received by or through Janajaya. Of that amount, RM230,000.00 was recorded as revenue in Janajaya’s audited accounts for the financial year 2021. Those accounts were signed by DW2 on 14 February 2022 in his then capacity as a director of Janajaya. [181] Intra Alliance now seeks, through its counterclaim, the return of those very payments on the basis that they were made pursuant to a fraudulent agreement. That position is fundamentally inconsistent with the conduct of its own witness, who, while still serving as a director of Janajaya, certified those same sums as legitimate revenue in the company’s audited accounts. [182] DW2’s signature on the audited accounts constitutes, at the very least, an acknowledgment at the directorial level that the sums received by Janajaya were properly received. That acknowledgment sits uneasily with, and is materially inconsistent with, the counterclaim’s present assertion that those same sums ought to be repaid as proceeds obtained through fraud. [183] This inconsistency provides a further and independent basis for dismissing the counterclaim insofar as it seeks recovery of those payments. [184] The counterclaim is accordingly dismissed in its entirety. THE REMAINING ISSUES [185] Issues 3 and 4 of the Issues to be Tried ask, respectively, whether Intra Alliance has breached the Agreement and whether it has failed to remedy any such breach. Having found that the Agreement was validly terminated on 8 January 2020, there is no surviving agreement under which any breach of the kind alleged could have been committed by Intra Alliance. The obligations under the Agreement to pay the consultancy fee in quarterly instalments could not be in default in respect of a contract that had already been terminated at the time those payment obligations were supposed to arise. These issues must be resolved in Intra Alliance’s favour. [186] Issue 6 asks whether the defences and counterclaim of Intra Alliance are afterthoughts. As I have explained in the analysis of the Third Ground, the termination ground, the material ground upon which Intra Alliance succeeds, is established by the credible and unimpeached evidence of DW2, corroborated by DW3’s witness statement and by PW1’s own admissions, and is therefore not an afterthought. The counterclaim fails, but it fails for want of proof of fraud rather than because it is an afterthought. The characterisation of the succeeding ground as an afterthought cannot be sustained. DETERMINATION OF ISSUES [187] I set out my determination of each of the distilled issues as follows. [188] First Ground (illegality under Act 242): No. The Agreement is not, in its essential character, a contract for estate agency practice within Act 242. The engagement was multi-dimensional, extending materially beyond mere property brokerage, and Intra Alliance has not discharged the burden of establishing that the Agreement is caught by the statutory prohibition. The First Ground fails. Janajaya succeeds on this issue. [189] Second Ground (fraud under Section 17 of the Contracts Act 1950): No. Intra Alliance has not established on the balance of probabilities that its consent to the Agreement was induced by a fraudulent misrepresentation within Section 17. DW3’s admission, while troubling, is contradicted in its central premise by the Intra Alliance board minutes of 27 October 2017. DW1’s evidence on reliance is based on his own private assumptions. By the time the Janajaya Agreement was executed in late 2019, DW1’s own account confirms that he had already discovered the true position, precluding reliance on any prior misrepresentation. Material witnesses on the alleged misrepresentation were not called. The Second Ground fails. Janajaya succeeds on this issue. [190] Third Ground (termination by Exhibit D1): Yes. Exhibit D1 was a genuine letter issued by DW2 in his capacity as a director of Janajaya on 8 January 2020, communicated to Intra Alliance unambiguously, and had the legal effect of terminating the Agreement on that date. The Third Ground succeeds. Intra Alliance succeeds on this issue. This finding is dispositive of the main claim. [191] Fourth Ground (the counterclaim): No. The counterclaim fails in its entirety. The foundational fraud allegation has not been established. All consequential reliefs are unavailable. The additional inconsistency of DW2’s certification of the received payments as legitimate revenue in Janajaya’s audited accounts while still a director provides an independent basis for rejecting the restitution claim. CONCLUSION AND ORDER [192] Janajaya Emas Sdn Bhd has succeeded in defeating the first two grounds of Intra Alliance’s layered defence. The Consultancy Agreement dated 8 January 2020 was, at the time of its formation, a valid and enforceable agreement between the parties. It is not rendered void or unenforceable under Act 242 because the services contracted for extended materially beyond the scope of estate agency practice, and Intra Alliance has failed to discharge the burden of establishing otherwise. [193] Nor is the Agreement voidable for fraud under section 17 of the Contracts Act 1950. The allegation of fraud is contradicted by the contemporaneous documentary record. It is unsupported by the testimony of the most material witnesses. It rests upon evidence from DW1 which is itself grounded in his own private assumptions. Further, in relation to the specific Janajaya Agreement, the allegation is materially undermined by DW1’s own evidence that he had already discovered the true position by the time the Agreement was executed in December 2019. [194] Nevertheless, Janajaya’s claim for the outstanding balance of the consultancy fee cannot succeed. The Consultancy Agreement was validly terminated by Exhibit D1 on 8 January 2020, being the same date on which the Agreement was formally dated by the parties’ solicitors. DW2, acting in his capacity as a director of Janajaya and exercising full directorial authority, communicated Janajaya’s unequivocal decision not to proceed with the Agreement. [195] That termination is corroborated by several converging features of the evidence. These include the consistent and credible evidence of DW2, which remained unimpeached in cross-examination. They also include the consistent account in DW3's witness statement recording his decision to relinquish his share of the fee. Further corroboration is found in PW1's own admissions concerning the date of execution of the Agreement and the sequence in which the draft Consultancy-cum-Commission Agreement was prepared. There is also the adverse inference arising from the non-production of the email forwarding that draft. In addition, PW1's credibility in relation to the alleged audio recording is seriously weakened by the complete absence of any reference to that recording in the police report. [196] The conclusion is further reinforced by the protection afforded to Intra Alliance under the Turquand rule, as well as by the inherent ambiguity surrounding the post-execution payments when viewed in light of DW2’s explanatory evidence that the payments related to a loan and Janajaya’s failure to challenge DW1 in cross-examination on the purpose of those payments. [197] The Agreement having been validly terminated on 8 January 2020, before any instalment of the consultancy fee had become due and payable in the form claimed, Janajaya’s claim for RM23,710,000.00 cannot be sustained. [198] Intra Alliance’s counterclaim is dismissed. The foundational fraud allegation has not been established on the balance of probabilities, and all the consequential reliefs sought in the counterclaim fall with it. The certification by DW2, while still a director of Janajaya, of the received payments as legitimate revenue in Janajaya’s audited accounts for 2021 provides an additional and independent basis for dismissing the restitution claim. [199] In the result: a) Janajaya’s claim is dismissed with costs. b) Intra Alliance’s counterclaim is dismissed with costs. c) There shall be a single global costs order in favour of Intra Alliance in the sum of RM40,000.00, covering both the main claim (which is dismissed) and the counterclaim (which is dismissed), such costs to be paid by Janajaya Emas to Intra Alliance. 15 June 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Mohamad Hazim Mohd Yaacob and Ahmad Nashrun (Messrs Azmi & Associates) For the Defendant: Mohd Munzeer Zainul Abidin (Messrs Yusfarizal Aziz & Zaid)