Leong Seng Hong v 1. ) Ilham Widad Bin Muhammad Ikmal Opat (WA-22NCC-577-08/2024)

ILHAM WIDAD BIN MUHAMMAD IKMAL OPAT (NRIC No.: 960917-04-5509)

TAN SRI MUHAMMAD IKMAL OPAT BIN ABDULLAH (NRIC No.: 680513-02-6321) ...DEFENDANTS GROUNDS OF JUDGMENT [1] This judgment concerns an application for summary judgment filed by a plaintiff seeking specific performance of a Share Sale Agreement entered into between the parties following an earlier settlement agreement that resolved disputes arising from a put option arrangement. The plaintiff claims that the defendants have breached their obligations under the Share Sale Agreement by failing to complete the purchase of shares within the stipulated timeframe and seeks orders compelling the defendants to fulfill their contractual obligations or alternatively for the guarantor to make payment. The defendants resist the application on the primary ground that there are triable issues relating to alleged breaches by the plaintiff of the original put option agreement, specifically concerning the trading of shares during a moratorium period. [2] A key question before the court is whether any such alleged breaches, if they occurred, have been resolved and precluded by the subsequent settlement agreement entered into by the parties. The application raises fundamental questions about the effect of settlement agreements in extinguishing prior claims and the circumstances in which summary judgment should be granted where defendants seek to rely on alleged antecedent breaches. Background Facts [3] On 15.8.2023, the Plaintiff, Leong Seng Hong, entered into a Share Sale Agreement (“2023 Share Sale Agreement”) with Ahmad Aiman Syahrin bin Sariffudin for the purchase and acquisition of 14,285,000 units of ordinary shares in Widad Group Berhad. The definition of “Purchaser” under this agreement included the Plaintiff and parties designated by the Plaintiff. [4] In connection with this share purchase transaction, the Plaintiff and the First Defendant, Ilham Widad bin Muhammad Ikmal Opat, executed several agreements on 15.8.2023, including a Put Option Agreement (“Put Option Agreement”) and a Call Option Agreement (“Call Option Agreement”). Under the Put Option Agreement, the First Defendant granted the Plaintiff an irrevocable put option to sell the said shares to the First Defendant. The Put Option Period was initially defined as four months commencing from 15.8.2023 until 14.12.2023, with the Put Option Share Price set at RM0.362 per share, less any cash dividend received during the Put Option Period. [5]

4.6 of the 2024 Share Sale Agreement, he is entitled to specific performance for both transactions, arguing this is a straightforward case with no triable issues warranting summary judgment disposition. Triable issues [26] There are a number of triable issues put forward by the Defendants in their Affidavit in Reply listed as follows: a) Whether the Plaintiff breached the Put Option Agreement by trading shares during the moratorium period (15.8.2023 to 14.11.2023). b) Whether the Plaintiff has proper legal standing to bring this claim. c) Whether the letters of demand dated 19.8.2024 were properly served on the Defendants. Analysis and findings of the court Trading During Moratorium Period [27] The Defendants raised the primary issue of whether the Plaintiff breached the Put Option Agreement by trading shares during the moratorium period from 15.8.2023 to 14.11.2023. The Defendants relied on Clause 2.7 of the Put Option Agreement which provides: “In the event LSH sells any portion of the Sale Shares during the Moratorium Period the number of Option Shares shall be reduced accordingly” and Clause 2.8 which states: “LSH is obliged to notify Grantor of any selling activity by LSH of the Sale Shares (during the Moratorium Period), within three (3) working days of such selling activity, failing which the Put Option granted pursuant to Clause 2.1 of this Agreement, shall lapse.” [28] The Defendants submitted that the Plaintiff had failed to provide documentary evidence such as share certificates, trading records and brokerage statements proving no trading occurred during this period. [29] They contended that the Plaintiff’s claims could not be adequately resolved through affidavit evidence alone and required rigorous examination at trial. [30] The Defendants further argued that the Plaintiff’s failure to specifically address this issue was crucial, citing the principle in Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission. [31] The Plaintiff’s position was multifaceted. Initially, the Plaintiff denied any breach of the Put Option Agreement terms regarding trading during the moratorium period. However, during oral submissions, counsel for the Plaintiff adopted a strategic approach, submitting that even if the Defendants’ allegations were taken at their best and assuming arguendo that there was trading during the moratorium period, all such issues arising under the Put Option Agreement had been conclusively resolved by the Settlement Agreement. [32] The Plaintiff relied heavily on the preclusive effect of the Settlement Agreement, particularly Clause 3 which provided for full and final settlement whereby parties would have no claim against one another save for enforcement of the settlement terms. [33] The Plaintiff cited CIMB Bank Bhd v Tan Hoo Eng [2024] MLJU 656 (High Court), where the court established that a settlement agreement operates to preclude parties from claiming any further sums beyond what was specifically agreed between them, effectively creating a complete bar to subsequent claims arising from the same subject matter. [34] In considering this issue, I find that several fundamental principles apply. The first principle, established in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 by the Supreme Court, is that under an Order 14 application, the court must determine not only whether an issue has been raised but whether that issue is triable. The Supreme Court held at page 408: “Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable.” [35] Applying this principle to the present case, I find that the Defendants’ assertion lacks the necessary precision and substantive foundation required to constitute a triable issue. The Defendants have failed to make any specific allegation of trading during the moratorium period. Their submission amounts to a bare assertion that places the burden of proof on the Plaintiff without identifying any particular breach or trading activity. This approach falls squarely within the category of assertions that are “equivocal” and “lacking in precision” as contemplated in Bank Negara Malaysia v Mohd Ismail & Ors. The authorities cited by the Plaintiff are instructive here, particularly Perbadanan Pembangunan Ekonomi Sarawak v Sarawak Motor Industries Bhd [1989] 3 MLJ 246 (High Court), Huo Heng Oil Co (EM) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139 (High Court), and Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363 (Court of Appeal), which establish that bare allegations do not constitute triable issues. [36] More significantly, I find that the Settlement Agreement operates as a complete bar to the Defendants’ attempt to relitigate issues arising from the Put Option Agreement. The Settlement Agreement contains express acknowledgment by the Defendants of their breaches under the Put Option and Guarantee respectively. Recital E of the Settlement Agreement states: “Party A has duly exercised his rights under the PO to require Party B to purchase from Party A, the 14,285,000 unit of Widad’s ordinary shares vide the notice dated 20th February 2024. However, Party B and Party C have breached their obligations under the PO and Guarantee respectively to purchase or to guarantee that Party B purchase the 14,285,000 unit of Widad’s ordinary shares in accordance with the PO (‘Breaches’).” [37] This constitutes an admission by the Defendants that the Plaintiff validly exercised the Put Option and that any issues under the Put Option were on their side, not the Plaintiff’s. [38] The principle established in CIMB Bank Bhd v Tan Hoo Eng is directly applicable to these circumstances. In that case, this court was required to determine whether parties could pursue claims for unaccrued interest on accounts frozen under AMLATFA orders where a settlement agreement had been executed. This court held at paragraph 87: “[87] Having carefully considered the submissions of both parties and the terms of the Settlement Agreement in light of the applicable legal principles, I find that the Settlement Agreement does preclude Aladam Tan from claiming any further sums from CIMB, including the interest on the MMA and SA during the subsistence of the AMLATFA Orders, beyond what was agreed between them. [88] First, a plain reading of Clause 3.2 of the Settlement Agreement makes clear that it was the parties’ express intention to fully and finally settle all claims between them. Clause 3.2 provides that Madam Tan will have “ho further claim of whatsoever nature against the Bank and/or its servants, agents and/or employees for damages or costs or any other compensation whatsoever arising from all and any accounts, credit facilities and/or investments held by the Tan Hoo Eng with the Bank including and without limitation to the OD Facility. Flexi Loan Account. RSP 15971 and/or the AMLA Orders or by reason of any matter connected to or arising therefrom.” [39] Just as this court found that a settlement agreement precluded further claims beyond what was agreed between the parties, the Settlement Agreement in this case contains Clause 3 providing for full and final settlement of all disputes arising from the Put Option and Guarantee Agreement. The Defendants are therefore estopped from reopening issues that were conclusively resolved by the Settlement Agreement. This is particularly compelling given that the Settlement Agreement was executed well after the alleged moratorium period and after the exercise of the Put Option rights by the Plaintiff. [40] Furthermore, the contemporaneous evidence strongly contradicts the Defendants’ position. The WhatsApp conversations exhibited as Exhibit A-12 in the Plaintiff’s affidavit show consistent acknowledgment by the first defendant of his obligations under the Settlement Agreement and Share Sale Agreement. From 23.7.2024 onwards, the first defendant repeatedly requested time extensions, stating: “I’m working on it. Can I update you by tomorrow on the transaction? I’m working on drawdown of my fund first tranche anytime now” and “I’m still arranging for accounts for the transaction.” At no point during these exchanges did the Defendants raise any issue regarding the Plaintiff’s alleged breach of the moratorium provisions. This strongly supports the Plaintiff’s submission that the Defendants’ current position is an afterthought. [41] I also find persuasive the Plaintiff’s strategic concession during oral submissions. Rather than engaging in a factual dispute that might create a triable issue, the Plaintiff’s counsel astutely submitted that even assuming the Defendants’ case at its best, the Settlement Agreement precludes relitigation of these issues. This approach aligns with the principle in Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, where the Supreme Court held at page 185: “The underlying philosophy in the O 14 provision is to prevent a Plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim.” [42] In conclusion, I find that the Defendants have failed to raise a triable issue regarding alleged trading during the moratorium period. Their assertion is bare, lacking in specificity, and inconsistent with the contemporaneous documentary evidence. More fundamentally, the Settlement Agreement operates as a complete bar to relitigating issues arising from the Put Option Agreement. The Defendants’ attempt to challenge the Plaintiff’s compliance with the moratorium provisions is precluded by their own acknowledgment in the Settlement Agreement and constitutes an impermissible attempt to go behind a binding settlement. Accordingly, this aspect of the Defendants’ defence fails to meet the threshold required to defeat the Plaintiff’s application for summary judgment. Locus Standi Issue [43] The Defendants submitted that the Plaintiff bears the burden of proving that the 14,285,000 unit shares of Widad Group Berhad were actually registered under the Plaintiff’s name and that the Plaintiff was properly authorised to sell shares that may have been registered under other individuals’ names. In their Defence dated 25.10.2024, the Defendants contended that the Plaintiff must demonstrate that “the purchase and acquisition of 14,285,000 unit shares were under the Plaintiff’s name and/or under the Plaintiff’s trading account and/or the Plaintiff has authority and entitlement thereto”. The Defendants reserved their rights to challenge whether the Plaintiff possessed the necessary locus standi to claim the reliefs sought in their entirety, as stated in paragraphs 15(b) and 17(b) of their respective Affidavits in Reply (Enclosures 10 and 11). [44] The Plaintiff submitted that there was simply no issue regarding locus standi, emphasising that he was a contracting party to both the Settlement Agreement and the 2024 Share Sale Agreement. The Plaintiff argued that he clearly possessed the necessary locus standi to commence the present suit to enforce his rights under these agreements. The Plaintiff further contended that the purchase of shares under different individuals’ names was clearly within the Defendants’ knowledge, as evidenced by the definition of “Purchaser” in the 2023 Share Sale Agreement, which expressly included “the parties designated by Leong Seng Hong”. During oral submissions, Plaintiff’s counsel emphasised that his client was a party to the Settlement Agreement, the 2024 Share Sale Agreement, and the Put Option Agreement, and therefore clearly had locus standi to sue under those written instruments. [45] Having carefully considered the submissions of both parties and the documentary evidence before this court, I find that the Defendants have failed to establish any triable issue regarding the Plaintiff’s locus standi. The evidence overwhelmingly supports the Plaintiff’s position that he possesses the requisite standing to bring this action. [46] The fundamental principle governing locus standi is that a party must have sufficient interest in the subject matter of the litigation to entitle him to maintain an action. In the present case, the Plaintiff’s standing derives directly from his contractual relationships with the Defendants. The undisputed evidence shows that the Plaintiff is an express party to three critical agreements: the Put Option Agreement, the Settlement Agreement, and the 2024 Share Sale Agreement. These agreements form the very foundation of the present claim, and the Plaintiff’s status as a contracting party to each of these instruments provides him with clear and unquestionable locus standi. [47] The Defendants’ challenge to the Plaintiff’s standing appears to be based on a misconception regarding the structure of the original share acquisition. As evidenced in Exhibit “A-3” of the Plaintiff’s Affidavit in Support (Enclosure 9), the 2023 Share Sale Agreement contains a specific definition of “Purchaser” which expressly states: “Purchaser means Leong Seng Hong (NRIC No. 770401-10-5091), an individual investor having his address at 17, Jalan Cahaya 3, Salak South Garden, 57100 Kuala Lumpur WP; And the parties designated by Leong Seng Hong” followed by a list of six designated individuals and one corporate entity. This definition clearly contemplates that the share acquisition structure would involve multiple parties acting under the Plaintiff’s designation and authority. [48] Significantly, this arrangement was not only known to the Defendants but was expressly acknowledged and accepted by them when they entered into the Put Option Agreement. The First Defendant granted the Put Option to the Plaintiff covering the entire 14,285,000 shares, despite having full knowledge that some shares might be registered under the names of the Plaintiff’s designated parties. The Defendants cannot now be permitted to challenge the very structure they previously accepted and which formed the basis of their contractual obligations. [49] The doctrine of estoppel operates powerfully against the Defendants’ belated challenge to the Plaintiff’s standing. Having entered into multiple agreements with the Plaintiff on the express understanding that he possessed authority over all the relevant shares, the Defendants are estopped from now denying his capacity to enforce those very agreements. This principle is particularly compelling given that the Defendants never raised any challenge to the Plaintiff’s authority during the numerous interactions preceding this litigation, including the WhatsApp conversations exhibited in Exhibit “A-12” of Enclosure 9, where the First Defendant repeatedly acknowledged his obligations to complete the transactions without questioning the Plaintiff’s authority. [50] The Settlement Agreement provides further confirmation of the Plaintiff’s standing. In Recital E of this Agreement, the parties expressly acknowledged that “Party A has duly exercised his rights under the PO to require Party B to purchase from Party A, the 14,285,000 unit of Widad’s ordinary shares vide the notice dated 20th February 2024”. This acknowledgement by both Defendants that the Plaintiff had validly exercised his rights under the Put Option Agreement necessarily confirms their recognition of his authority over the shares and his standing to enforce the related agreements. [51] Moreover, the present claim is not based on the original share purchase arrangements but rather on the Defendants’ breaches of the Settlement Agreement and Share Sale Agreement. The Plaintiff’s standing to enforce these latter agreements is beyond dispute, as he is an express contracting party to both instruments. The 2024 Share Sale Agreement was entered into pursuant to Clause 2 of the agreement, with the Plaintiff as vendor, the First Defendant as purchaser, and the Second Defendant as guarantor. The obligations sought to be enforced in this action arise directly from these contractual relationships. [52] The Defendants’ reservation of rights to challenge locus standi, as stated in their Defence and affidavits, amounts to nothing more than a bare assertion without any supporting evidence or legal basis. They have failed to identify any specific defect in the Plaintiff’s standing or to point to any authority that would support their position. Their submissions amount to requiring the Plaintiff to prove a negative - that he lacks standing - which is contrary to established legal principles. [53] Furthermore, the Defendants’ challenge lacks practical merit given that Exhibit “A-15” of the Plaintiff’s Affidavit in Support demonstrates that all 19,265,000 unit shares of Widad Group are under the Plaintiff’s title and control and are ready to be transferred to the First Defendant in accordance with the terms of the 2024 Share Sale Agreement. This evidence directly contradicts any suggestion that the Plaintiff lacks authority over the shares or standing to enforce the related agreements. [54] In conclusion, I find that the Defendants have entirely failed to establish any triable issue regarding the Plaintiff’s locus standi. The Plaintiff’s standing is clearly established through his status as a contracting party to the relevant agreements, the Defendants’ acknowledgement of his authority in those agreements, and the principle of estoppel which prevents them from challenging the very arrangements they previously accepted. This aspect of the Defendants’ challenge to the summary judgement application must therefore fail. Service of Letters of Demand [55] The Plaintiff submits that the letters of demand dated 19.8.2024 (“LOD D1 (2)” and “LOD D2 (2)”) were validly served on both Defendants in accordance with Clause 10.1 of the 2024 Share Sale Agreement. The Plaintiff contends that any dispute concerning the service of these letters is baseless and without merit. In his Affidavit in Reply (Enclosure 12), the Plaintiff specifically states at paragraph 11 that the LOD D1 (2) was validly served on the First Defendant in accordance with Clause 10.1 of the SSA, and at paragraph 19 that the LOD D2 (2) was similarly validly served on the Second Defendant. The Plaintiff argues that the service was effected in compliance with the contractual provisions agreed upon by the parties. [56] The Defendants, through their respective Affidavits in Reply (Enclosures 10 and 11), deny receiving proper service of the letters of demand dated 19.8.2024. In paragraph 13 of Enclosure 10, the Second Defendant states that the “Plaintif adalah diletakkan di atas beban bukti yang kukuh bahawa Surat Tuntutan bertarikh 19.8.2024 telah diserahkan kepada saya secara sempurna.” Similarly, in paragraph 15 of Enclosure 11, the First Defendant makes an identical assertion that the Plaintiff bears the burden of proving proper service. The Defendants contend that the Plaintiff has failed to discharge this burden of proof and that the alleged service was not effected in accordance with the requirements. [57] Having carefully considered the evidence before me and the submissions of both parties, I find that the Plaintiff has established proper service of the letters of demand dated 19.8.2024 on both Defendants. The evidence demonstrates that the Plaintiff’s solicitors, Messrs Han & Partners, issued the demand letters on 19.8.2024, and these were served in accordance with the contractual provisions agreed upon by the parties. [58] The contractual framework governing service is found in Clause 10.1 of the 2024 Share Sale Agreement, which the parties themselves negotiated and agreed upon. This clause provides the mechanism and requirements for service of notices under the agreement. The Plaintiff has exhibited documentary evidence in his affidavit showing that his solicitors issued and served the letters of demand in accordance with this contractual provision. Significantly, whilst the Defendants place the burden of proof on the Plaintiff to establish proper service, they have not adduced any credible evidence to demonstrate that service was not effected or that it was defective in any material way. [59] The Defendants’ bare assertion that they bear “beban bukti yang kukuh” (strict burden of proof) without more, does not constitute a triable issue. As established in the Supreme Court decision in Bank Negara Malaysia v Mohd Ismail & Ors, the duty of a judge in an Order 14 application does not end as soon as a fact is asserted by one party and denied by the other. Where such denial is equivocal, lacking in precision, or inconsistent with undisputed contemporary documents, the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. [60] In the present case, the Defendants’ denial is precisely of this nature - it is bare, unsubstantiated, and lacks any supporting evidence. The Defendants have not exhibited any correspondence challenging the service at the material time, nor have they provided any evidence to suggest that the addresses used for service were incorrect or that the method of service was inappropriate. Their silence on these critical aspects undermines the credibility of their challenge to service. [61] Furthermore, the contemporaneous conduct of the parties, particularly the First Defendant’s acknowledgment in the WhatsApp conversations exhibited as Exhibit “A-12” of the Plaintiff’s affidavit, demonstrates that both Defendants were well aware of their obligations under the 2024 Share Sale Agreement and the need to comply with the payment deadlines. The First Defendant’s repeated requests for extensions and explanations about arranging funds suggest that he was fully cognisant of the demands being made upon him, which is inconsistent with any claim of non-service. [62] I also note that under the principle established in Perbadanan Pembangunan Ekonomi Sarawak v Sarawak Motor Industries Bhd [1989] 3 MLJ 246 (High Court), bare allegations do not constitute triable issues. The Defendants’ challenge to service falls precisely within this category, being nothing more than a bare denial unsupported by any credible evidence or plausible explanation. [63] Accordingly, I find that the Plaintiff has discharged his burden of proving proper service of the letters of demand dated 19.8.2024, and the Defendants’ challenge to service does not raise any triable issue that would warrant a full trial. The service was effected in accordance with the contractual provisions agreed upon by the parties, and the Defendants’ denial is without merit and constitutes nothing more than an afterthought designed to delay the proceedings. Conclusion [64] Having carefully considered all the evidence, I find that the Plaintiff has satisfied the preliminary requirements for summary judgment and the Defendants have failed to demonstrate any triable issue. Their challenges are bare assertions lacking precision, inconsistent with contemporaneous evidence, and fundamentally precluded by the Settlement Agreement which operates as a complete bar to relitigating Put Option issues. The Defendants expressly admitted through Recital (E) that the Plaintiff "duly exercised his rights under the PO" and that breaches were on their part, whilst Clause 3 provides full and final settlement. The WhatsApp evidence shows Defendants consistently acknowledged obligations without questioning the Plaintiff's authority, confirming their present arguments are afterthoughts to avoid contractual obligations. [65] Accordingly, I hereby grant the Plaintiff's application for summary judgment in Enclosure 8 and make the following orders: a) An order for specific performance of the Share Sale Agreement dated 1 June 2024 against the First Defendant requiring the First Defendant to take all reasonable steps within seven (7) days from the date of this Judgment to fulfill his obligation to pay the sum of RM6,714,970.00 to the Plaintiff and purchase 19,265,000 units of Widad Group Berhad shares (Registration No.: 200901014295(857363-U)) from the Plaintiff as follows: i) 4,980,000 units at RM0.310 per share totaling RM1,543,800.00; and ii) 14,285,000 units at RM0.362 per share totaling RM5,171,170.00; b) In the event the First Defendant fails to comply with order (a) above: i) The Plaintiff is empowered to appoint a broker of his choice to execute and complete the purchase of the said shares by the First Defendant; ii) The Second Defendant shall pay to the Plaintiff or the broker appointed by the Plaintiff the sum of RM6,714,970.00 within seven (7) days of written notice being given to the Second Defendant; iii) The First Defendant shall execute all necessary documents for the purchase and transfer of the said shares within seven (7) days of written notice, failing which the Registrar of this Court is empowered to sign all necessary documents on behalf of the First Defendant; c) A Penal Notice pursuant to Form 83 of the Rules of Court 2012 be entered against the First Defendant and the Plaintiff is entitled to commence committal proceedings against the First Defendant should the First Defendant fail, refuse and/or neglect to comply with orders (a) and/or (b)(iii) above; d) The First Defendant and/or Second Defendant shall jointly and severally pay costs to the Plaintiff in the sum of RM5,000.00, subject to allocatur; and e) Liberty to apply for further orders. 10 September 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Phang Soon Mun with Ken Tang (Messrs Han & Partners) For the Defendants: Athari Bahardin (Messrs. K. Kuldeep Kumar & Co.)