Lim Mei Jin (Menyaman Sebagai Wakil Diri Kepada Loh Yuen Weng (Si Mati) [Yang Telah Dilantik Sebagai "Executrix" Dan Pemegang Amanah ("Trustee") Untuk Estet Loh Yuen Weng (Si Mati)] v LOH YUEN TUCK (WA-22NCC-621-12/2020)

Before the court is a dispute arising from a friendly loan agreement and related share placement transaction, where an executrix seeks to recover monies allegedly due to the deceased's estate. The key issues revolve around whether there was accord and satisfaction of the loan, the relationship between two contemporaneous agreements executed by different but related parties, the sufficiency of pleadings for certain defenses, and whether a debt that was not specifically mentioned in a will but included in probate assets can be pursued by an executrix under a residuary clause. The matter raises important questions about the S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 interplay between contemporaneous agreements involving related parties, the proper scope of residuary clauses in wills, and fundamental principles of civil procedure regarding the adequacy of pleadings and conduct of trials.

The Plaintiff, Lim Mei Jin, is suing as the personal representative of Loh Yuen Weng (deceased) (“the Deceased”), having been appointed as the executrix and trustee under the Deceased's Last Will and Testament dated 3.1.2017. A Grant of Probate was issued to her by the Kuala Lumpur High Court on 27.9.2017.

The Defendant, Loh Yuen Tuck, is the Deceased's younger brother. The Deceased and the Defendant were also business associates. The Deceased and the Plaintiff were husband and wife.

Two agreements were executed on 17.4.2015: a) A Memorandum of Agreement for Private Placement Shares (“the MOA”) between the deceased and the defendant. Under this agreement, Connect IOT Sdn Bhd (“CISB”) was to subscribe for 7,000,000 new ordinary shares of RM0.10 each in Managepay Systems Berhad (“MPS”) at RM0.23 per placement share via a proposed private placement, in S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 accordance with terms prescribed by Kenanga Investment Bank Berhad (“KIBB”). b) A Consultancy Services Agreement (“Consultancy Agreement”) between the deceased and CISB. Under Schedule 1 Part 2 of this agreement, the deceased was to be paid 69% of the net proceeds derived from the disposal of the placement shares.

The Defendant requested from the Deceased a friendly loan of RM1,680,000.00 for the purpose of advancing the loan to CISB to subscribe for the placement shares. Under the MOA, the friendly loan was to be advanced as follows: a bank draft payable to KIBB for RM1,610,000.00 and a cash sum of RM70,000.00.

The MOA stipulated that if the proposed private placement was approved by Bursa Malaysia Securities Berhad (“Bursa Securities”), the Defendant would repay RM1,610,000.00 to the Deceased within 3 months from the date of listing of the placement shares, and the repayment of the RM70,000.00 would be waived.

The following disbursements were made: a) RM70,000.00 was remitted via interbank transfer from the Deceased's CIMB Bank account to Messrs C.S. Tang & Co on 14.4.2015 S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 b) RM430,000.00 was transferred from the Deceased's CIMB Bank account to KIBB on 14.4.2015 c) RM480,000.00 was transferred from the Plaintiff's personal CIMB Bank account to KIBB on 14.4.2015 d) RM720,032.86 was withdrawn from the Deceased's Maybank Islamic account on 27.7.2015, of which RM720,000.00 was remitted to MPS

KIBB was appointed as the Adviser and Placement Agent for the proposed private placement. The Defendant was both a director (appointed on 31.3.2015) and shareholder of CISB, holding 50% of CISB's shares.

The proposed private placement was approved by Bursa Securities and was completed on 21.7.2015 following the listing of and quotation for 130,293,200 MPS shares on the ACE Market of Bursa Securities.

On 7.10.2020, the Plaintiff's solicitors sent a letter of demand to the Defendant for the sum of RM1,610,000.00. According to the Companies Commission of Malaysia's digitally certified true copy of CISB's company information report dated 22.1.2022, the status of CISB is “DISSOLVED”. S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The Deceased passed away on 14.5.2017. In his Last Will and Testament dated 3.1.2017, the Plaintiff was appointed as the executrix and trustee. The MOA amount RM1,6810,000.00) was listed as item no. 18 in the “SENARAI ASET” of the grant of probate of the Deceased's estate.

Legal proceedings were commenced by the Plaintiff against the Defendant in the High Court of Malaya at Kuala Lumpur (Commercial Division) under Suit No. WA-22NCC-621- 12/2020. The trial was conducted physically on 28.2.2024 and 29.2.2024.

The Plaintiff avers that since the proposed private placement was approved by Bursa Securities and following the listing of the MPS shares, a sum of RM1,610,000.00 became due and payable by the Defendant to the Deceased within 3 months from 21.7.2015, i.e., on or before 20.10.2015, per clause 2.1(a)(i) of the MOA.

The Plaintiff contends that the Defendant has not repaid this sum of RM1,610,000.00 to either the Deceased or the Plaintiff. The Plaintiff maintains that the Deceased never issued to the Defendant any letter of release and discharge per clause 4.1(b) of the MOA waiving the repayment of the friendly loan. Further, the Defendant has never disclosed any such letter of release and discharge. S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

The Plaintiff contends that the MOA did not provide that the Deceased had to bear losses from the subsequent sale of the MPS shares by CISB or that such losses would reduce the repayment of the friendly loan sum. Similarly, the Plaintiff maintains that the Consultancy Agreement between CISB and the Deceased did not provide for the Deceased to bear such losses.

The Plaintiff emphasises that the Defendant was never privy to the Consultancy Agreement as that agreement was only between CISB and the Deceased. Moreover, CISB is not a party to these proceedings and its status is “DISSOLVED”.

The Plaintiff prays for judgment against the Defendant as follows: a) That the Defendant pay the Plaintiff a sum of RM1,610,000.00; b) That the Defendant pay interest at the rate of 5% per annum on the sum of RM1,610,000.00 from the date of judgment until the date of full realisation; c) That the Defendant pay the costs of this action; and d) Such other relief as the court deems fit and suitable. S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

However, during the course of the trial, the Plaintiff revised her position and now prays for judgment for a lesser sum of RM910,000.00 instead of the original sum of RM1.61 million, maintaining the same prayers for interest and costs.

The Defendant acknowledges entering into the MOA but denies that the Deceased and he were close business associates. He asserts that of the total loan amount of RM1,680,000.00 that was supposed to be disbursed under the MOA, the Deceased only disbursed RM910,000.00, consisting of RM430,000.00 and RM480,000.00 paid to KIBB.

Regarding the RM720,032.86 payment to MPS on 27.7.2015, the Defendant maintains this was not made for the purposes of advancing the friendly loan to CISB or for purposes related to the proposed private placement. Rather, he contends this payment was made by the Deceased for his own personal investments, specifically for the conversion of his personal MPS warrants into shares.

The Defendant pleads that around the time the Deceased agreed to provide the loan, the Defendant had offered the Deceased an opportunity to participate in sharing profits from CISB's subsequent sale of MPS shares acquired through the private placement. Under this arrangement, it S/N rw16na9kvEq2dcGMjAGWJw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 was allegedly agreed that any losses made by CISB would be set off against the loaned sum.

The Defendant claims that after the MPS shares were disposed of, CISB ultimately made a loss. Accounting for the agreed division of profits/losses, the Deceased was required to bear a loss of RM171,876.56. Since the Deceased had only disbursed RM910,000.00, the Defendant claims he was only required to repay RM738,123.44.

The Defendant avers that through a combination of telegraphic/interbank transfers, bank cheques, cash cheques and/or cash payments from himself and CISB, he made payments totalling RM739,516.00 to the Deceased, thereby settling the entire loan amount.

The Defendant further pleads that the Plaintiff is estopped from claiming the loan amount as she had, through the distribution of the Deceased's estate, made an unconditional payment to the Defendant of RM68,651.43 in

He argues that the Plaintiff's omission to set off this distribution sum against the allegedly outstanding loan amount demonstrates that the Plaintiff had, prior to 2020, recognised there were no amounts owing by the Defendant to the Deceased. S/N rw16na9kvEq2dcGMjAGWJw [25] Based on these pleadings, the Defendant prays that the Plaintiff's claim be dismissed with costs. Witnesses [26] The Plaintiff, Lim Mei Jin, appeared herself as the sole witness for her case. As PW1, she represented herself as the Plaintiff and as the executrix of the Deceased. Her evidence is on the friendly loan arrangement in which the Deceased advanced a sum of RM1.68 million to her brother-in-law, the Defendant, with RM1.61 million becoming due after the private placement was approved by Bursa Securities. It details how the loan was disbursed through multiple payment methods, the conditions outlined in the MOA, and the accompanying documents supporting these transactions. It further establishes that the due repayment has not been made, forming the basis of the legal claim by the witness as the personal representative of her late husband’s estate. Her witness statement is marked as “WSPW1”. [27] Three witnesses appeared for the Defendant as follows: a) DW1 is Tan Cheow Han. He held the position of Vice President in the Equity Capital Markets Department at KIBB. His evidence is on the private placement of new MPS shares, confirming that CISB fully subscribed to 13,800,000 shares for RM3,174,000.00, with all funds paid solely to S/N rw16na9kvEq2dcGMjAGWJw Kenanga Investment Bank Berhad and the placement completed on 21.7.2015. His witness statement is marked as “WSDW1”. b) DW2 is Alex Chay Ching Keong, the Group Chief Financial Officer (CFO) of Managepay Systems Berhad Group. His evidence is on a RM720,000.00 Bankers Cheque payment made to MPS’s Warrant Account as a conversion premium for converting warrants to shares held by the Deceased. His witness statement is marked as “WSDW2”. c) DW3 is Loh Yuen Tuck, the Defendant in the case. He is a director of CISB. His evidence is on the agreements with the Deceased concerning the friendly loan and the subscription for MPS shares, particularly highlighting that the Deceased failed to remit the full RM1.61 million to KIBB, resulting in a shortfall. His witness statement is marked as “WSDW3”. Issues [28] From the facts of the case, defences relied on by the Defendant and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: S/N rw16na9kvEq2dcGMjAGWJw a) Whether the Defendant established on a balance of probabilities that there was full accord and satisfaction of the RM910,000 loan granted under the MOA through alleged part payments of RM50,000 by himself, RM689,516 by CISB, and claimed share losses of RM171,876.56. b) Whether the MOA and Consultancy Agreement, though executed on the same day and relating to the same private placement exercise, should be treated as separate contracts with independent rights and obligations in light of the doctrine of privity of contract. c) Whether the Defendant's Defence properly pleaded the defences of accord and satisfaction and lack of cause of action to the standard required by Order 18 rule 12 of the Rules of Court 2012 and established principles of pleading sufficiency. d) Whether the Plaintiff's reliance on bank statements and MOA documents, coupled with her reduction of the claimed amount from RM1.68 million to RM910,000 based on the Defendant's trial evidence, demonstrates she lacks the requisite personal knowledge of the friendly loan transaction to maintain her claim as executor of the deceased's estate. S/N rw16na9kvEq2dcGMjAGWJw e) Whether the Plaintiff can pursue recovery of the MOA loan debt that was entered into in 2015 and listed as item no. 18 in the probate assets list, when the loan was not specifically mentioned in the Deceased's 2017 Will but falls under clause 6's residuary estate provision that bequeaths the residue to the Plaintiff. Analysis and findings of the court Whether there is accord and satisfaction with regards to the Defendant's obligations under the MOA and Consultancy Agreement [29] The Defendant submits that there has been accord and satisfaction of the sums owed by him to the Deceased under the MOA dated 17.4.2015 and the related Consultancy Agreement of the same date between the Deceased and CISB. The Defendant contends that of the RM910,000 disbursed by the Deceased under the MOA, a total of RM739,516 was repaid in the following manner: RM50,000 by the Defendant himself through two transactions of RM30,000 and RM20,000 respectively as reflected in his CIMB Bank statements dated 7.11.2016 and 7.1.2017; and RM689,516 by CISB via four cheques amounting to RM43,248, RM31,000, RM50,268 and RM565,000 as captured in CISB's bank statements and management accounts. The Defendant also argues that under the Consultancy Agreement between CISB and the S/N rw16na9kvEq2dcGMjAGWJw Deceased, the Deceased had agreed to bear losses on the MPS shares. Due to a loss of RM171,876.56 incurred by CISB on the sale of the MPS shares, the Defendant claims that this sum should be deducted from the loan amount, thereby resulting in accord and satisfaction as the repayments made (RM739,516) exceed the net loan due (RM738,123.44). [30] The Plaintiff refutes the Defendant's contentions on several grounds. Firstly, the Plaintiff submits that the Defendant's failure to specifically put his case of accord and satisfaction to the Plaintiff's witness during cross-examination amounts to an abandonment of this defence. The Plaintiff refers to two authorities in this regard. In Aik Ming (M) Sdn Bhd v Chang Ching Chuen [1995] 2 MLJ 770, the Court of Appeal held at page 775: “It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument.” [31] Similarly, in Manjit Kaur v Dr Nagasparan [2024] 1 MLJ 572, the Court of Appeal observed at paragraph 26: “We would also add that failing to challenge the version put by respondent and his staff meant that the appellant had abandoned that part of her pleaded case. A party's case must be expressly put to the opponent's witnesses under cross-examination as a failure to do so would mean that S/N rw16na9kvEq2dcGMjAGWJw he has taken to accept his opponent's version and would also bar him from raising it in argument.” [32] The Plaintiff contends that by not challenging her testimony on accord and satisfaction, the Defendant must be taken to have accepted her version of events on this issue. [33] Secondly, the Plaintiff argues that the RM50,000 allegedly paid by the Defendant to the Deceased, through two transactions of RM30,000 and RM20,000 on 25.10.2016 and 21.12.2016 respectively, was not proven to be for repayment of the friendly loan under the MOA. During cross-examination, the Defendant admitted that his bank statements showing these fund transfers do not state the purpose of the payments. The Plaintiff submits that the Defendant has failed to discharge his burden of proving that these payments were made towards settlement of the MOA loan. [34] Next, the Plaintiff contends that the alleged repayments of RM689,516 by CISB were also not proven to be received by the Deceased or intended for the MOA loan. Three of the four CISB cheques relied on by the Defendant (amounting to RM43,248, RM31,000 and RM565,000 respectively) were cash cheques. Under cross-examination, the Defendant agreed that there is no documentary evidence that these cash cheques were paid to or received by the Deceased. The Defendant also admitted during re-examination that the Deceased did not personally encash the cheques, but that the cash was passed to the Deceased by the Defendant. S/N rw16na9kvEq2dcGMjAGWJw However, no written acknowledgement of the Deceased's receipt of these cash payments was produced. [35] Moreover, the Plaintiff highlights that based on CISB's management accounts as at 31.12.2015 and 31.12.2016, the four CISB cheques to the Deceased appear to be for repayment of a separate loan of RM909,999.83 extended by the Deceased to CISB on 23.7.2015 for CISB to purchase MPS shares. The Plaintiff submits that these alleged part payments by CISB related to a different transaction between CISB and the Deceased, and should not be regarded as discharging the Defendant's personal debt to the Deceased under the MOA. [36] As for the Defendant's argument that the Deceased agreed to bear a loss of RM171,876.56 from CISB's sale of the MPS shares under the Consultancy Agreement, thereby reducing the sum repayable under the MOA, the Plaintiff refutes this contention by referring to the express terms of the MOA and Consultancy Agreement. Neither contract provides for any losses on the MPS shares to be borne by the Deceased or used to set off the MOA loan repayments. The Plaintiff also argues that the Defendant, who was not a party to the Consultancy Agreement between CISB and the Deceased, has no locus standi to make any claims under that agreement even if such a loss-bearing provision existed. Any such claim can only be brought by CISB which is now dissolved in any event. The Court of Appeal in Dato' Mohamad Shahul Hameed v Datin Mazita Osman [2023] 6 S/N rw16na9kvEq2dcGMjAGWJw MLJ 544 affirmed the principle that only parties to a contract can enforce rights or bear obligations under it. [37] Having carefully considered the evidence and rival submissions, I accept the Plaintiff's case that there was no full accord and satisfaction of the MOA loan for the following reasons. [38] The Defendant failed to put his pleaded defence of accord and satisfaction to the Plaintiff's witness during cross-examination. In the absence of any reasonable explanation for this omission, I find that the Defendant must be taken to have abandoned this part of his pleaded case following the principles enunciated in Aik Ming and Manjit Kaur (supra). [39] Even if the issue of accord and satisfaction had been properly pursued at trial, the Defendant failed to prove on a balance of probabilities that the alleged payments of RM50,000 by himself and RM689,516 by CISB were made towards settlement of the MOA loan. The bank statements recording the RM50,000 transfers by the Defendant do not state the purpose of the payments. Three of the four CISB cheques are cash cheques with no credible documentary evidence that the cash was actually received by the Deceased. Based on the notations in CISB's management accounts, the alleged part payments by CISB appear to be for a separate loan extended by the Deceased to CISB, rather than repayment of the Defendant's loan under the MOA. S/N rw16na9kvEq2dcGMjAGWJw [40] I also find no basis for the Defendant's claim that losses incurred by CISB on the sale of MPS shares should reduce the Defendant's loan repayment obligations to the Deceased. Neither the MOA nor the Consultancy Agreement provides for such losses to be borne by the Deceased. In any event, the Consultancy Agreement was between CISB and the Deceased. The Defendant, who was not a party to that contract, has no legal standing to assert any rights or raise any claims under that agreement, as rightly submitted by the Plaintiff in reliance on Dato' Mohamad Shahul Hameed v Datin Mazita Osman (supra). [41] In the circumstances, I find that the Defendant has failed to establish on a balance of probabilities that there was a full accord and satisfaction of the friendly loan granted by the Deceased under the MOA through the part payments and share losses alleged by the Defendant. Whether the MOA and Consultancy Agreement are interrelated and should not be treated separately [42] The Defendant submits that the MOA and Consultancy Agreement, both dated 17.4.2015, should be read and applied conjunctively. The Defendant argues that the two agreements are clearly interrelated as they were executed on the same day, involved the same parties (namely the Defendant, the Deceased and CISB) albeit in different capacities, and relate to the same subject matter of the private placement of CISB shares in MPS. The Defendant S/N rw16na9kvEq2dcGMjAGWJw contends that the MOA governs the Deceased's friendly loan to the Defendant to fund CISB's subscription of the placement shares, while the Consultancy Agreement provides for the Deceased's profit-sharing and loss-bearing arrangement with CISB on the subsequent sale of those shares. Given their close nexus, the Defendant argues that payments made under the Consultancy Agreement, and losses allegedly borne by the Deceased thereunder, have a direct bearing on the Defendant's loan obligations to the Deceased under the MOA. As such, the Defendant submits that it would be artificial and unjust to segregate the two contracts and preclude him from relying on the Consultancy Agreement to establish his defence of accord and satisfaction on the MOA claim. The Defendant refers to clauses 1 and 2 of the MOA and Schedules 1 and 2 of the Consultancy Agreement to illustrate their interconnected nature and operation. The Defendant argues that Clauses 1 and 2 of the MOA (governing loan terms) and Schedules 1 and 2 of the Consultancy Agreement (detailing profit-sharing) are interconnected because payments and obligations under both agreements operated jointly to discharge the loan via CISB's share-related transactions. [43] The Plaintiff refutes the Defendant's contention and maintains that the MOA and Consultancy Agreement are separate contracts which cannot be conflated. The Plaintiff submits that it is a fundamental principle of contract law that a contract cannot confer rights or impose obligations on third parties. Support for this proposition can be found in the S/N rw16na9kvEq2dcGMjAGWJw Court of Appeal's decision in Dato' Mohamad Shahul Hameed v Datin Mazita Osman [supra] where it was held at paragraph 62: “Before we conclude, we must stress that we have not lost sight of the trite principle on the application of the doctrine of privity of contract under which the long-established rule is that only parties to a contract incur rights and obligations under it. Reference need only be made to the case of Boustead Naval Shipyard Sdn Bhd v Dynaforce Corp Sdn Bhd [2015] 1 MLJ 284; [2014] 5 CLJ 533 where the Court of Appeal, inter alia, held that: 'As an established principle of contract law, the common law doctrine of privity of contract stands for the simple proposition that, 'no one but the parties to a contract can be bound by it or entitled under it' (Greenwood Shopping Plaza Limited v Robert Walker Beattie and Roy Vincent Pettipas [1980] 2 SCR 228, at p 229).'“ [44] The Plaintiff contends that the Defendant is attempting to circumvent the doctrine of privity by enforcing terms of the Consultancy Agreement to which he was not a party in order to avoid his liability under the MOA. While acknowledging that the two agreements were executed contemporaneously and involved the same private placement exercise, the Plaintiff argues that this does not detract from the fact that in law, they are distinct contracts between different parties which operate independently and do not impose mutual obligations. The Plaintiff highlights that the Defendant entered into the MOA in his personal capacity as the borrower of the friendly loan from the Deceased, whereas under the Consultancy Agreement, the Deceased's contractual counterparty was CISB. There was no contractual relationship between the Defendant and S/N rw16na9kvEq2dcGMjAGWJw CISB under the Consultancy Agreement. The Plaintiff submits that the Defendant cannot 'pick and choose' favourable extracts from the Consultancy Agreement and import them into the MOA when the two agreements do not cross-refer to each other or provide for the Defendant's rights and liabilities to be contingent on CISB's separate obligations to the Deceased. [45] Upon a careful perusal of the MOA and Consultancy Agreement, I find myself in agreement with the Plaintiff's submissions. The two contracts, while undoubtedly related to the same MPS private placement exercise, create distinct sets of rights and obligations between different parties. The MOA governs the bilateral 'friendly loan' arrangement between the Deceased as lender and the Defendant as borrower. Clause 4.1 of the MOA spells out the circumstances under which the Defendant would be released from the loan agreement, namely full repayment or the Deceased's express waiver of the loan. It reads: “4.1 LYT shall be released and discharged from this Agreement upon the occurrence of any of the following events: a) Upon full repayment of the said Friendly Loan to LYW whereby LYT shall be deemed released and discharged; or b) Upon LYW’s agreement to waive the repayment of the said Friendly Loan whereby LYW shall provide a letter of release and discharge to LYT.” S/N rw16na9kvEq2dcGMjAGWJw [46] There is no mention of the Defendant's liability being contingent on the profit or loss position under the Consultancy Agreement between the Deceased and CISB. That is a separate contract between different parties. [47] It is trite law that the doctrine of privity of contract restricts the enforcement of contractual terms to the parties who entered into the contract. This principle was succinctly explained by Scrutton LJ in the oft-cited case of Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 at 853: “….in the law of England certain principles are fundamental. One is that only a person who is party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.” [48] In Schmidt v Kepong Prospecting Ltd & Ors [1964] MLJ 416 the Federal Court recognised the application of the doctrine of privity of contract in Malaysia that “a person who is not a party to a contract cannot take advantage of provisions of the contract…” [49] Applying this principle to the present case, the Defendant cannot assert rights or avoid obligations under the MOA by reference to a separate contract, namely the Consultancy Agreement, to which he is not privy. The fact that both contracts relate to the same share placement exercise and S/N rw16na9kvEq2dcGMjAGWJw were signed on the same day does not unify them into a single agreement or permit the Defendant to 'borrow' terms from one contract to escape liability under the other when he is not a party to both. During cross-examination, the Defendant fairly conceded that he was not a party to the Consultancy Agreement which was only between the Deceased and CISB. The Defendant also agreed that the MOA does not stipulate that the Defendant's loan obligations would be reduced by losses under the Consultancy Agreement. [50] While the Defendant sought to establish a nexus between the two contracts by pointing to similarities in their execution date and subject matter, I am not persuaded that this warrants disregarding their distinct legal identities and separate spheres of operation. It is not uncommon for parties to structure their interlocking arrangements through separate contracts creating independent rights and obligations, even if those contracts relate to the same underlying transaction and are entered into contemporaneously. To automatically treat such contracts as amalgamated or interdependent would undermine contractual certainty and autonomy. [51] I find that this is precisely what the Deceased, Defendant and CISB did in the present case. They evidently saw it fit to encapsulate their distinct arrangements within two separate contracts conferring independent rights and liabilities - the MOA governing the loan between the Deceased and S/N rw16na9kvEq2dcGMjAGWJw Defendant, and the Consultancy Agreement governing the profit-sharing between the Deceased and CISB. Neither contract contains any clauses bridging this separation or making the Defendant's and CISB's obligations interdependent. Tellingly, clause 5.7 of the MOA itself stipulates that the agreement is only binding on the parties' heirs and personal representatives, without mentioning any third parties such as CISB. [52] In these circumstances, to allow the Defendant to rely on losses purportedly borne by the Deceased under the Consultancy Agreement to absolve his own liability under the MOA would effectively allow him to assert rights under a contract to which he is not privy, in clear violation of the doctrine of privity of contract. It would undermine the strict demarcation of rights and liabilities that the parties chose to adopt in their contractual arrangements. [53] For these reasons, I find that the MOA and Consultancy Agreement are separate contracts which operated independently in governing the Deceased's loan arrangement with the Defendant and profit-sharing arrangement with CISB respectively. The Defendant cannot import select terms of the Consultancy Agreement to which he is not privy to avoid his own liability to the Deceased under the MOA. S/N rw16na9kvEq2dcGMjAGWJw Whether the Defendant sufficiently pleaded accord and satisfaction and lack of cause of action [54] The Defendant submits that his defence of accord and satisfaction was properly pleaded in paragraph 9 of his Defence and List of Documents dated 8.6.2022. The Defendant contends that paragraph 9, when read as a whole and together with the facts and particulars in the preceding sub-paragraphs, sufficiently makes out the defence of accord and satisfaction. The Defendant argues that paragraphs 9.1 to 9.6 detail the alleged payments and set-off of the Deceased's share of losses that purportedly discharged the Defendant's debt under the MOA, with paragraph 9.6 concluding that these payments totalling RM739,516 settled “all of [the] loaned amount.” Paragraph 10 then pleads that “there has been a full accord and satisfaction of the actual loan amount as set out in paragraph 9 above.” [55] Paragraphs 9 and 10 of the Defence is set out as follows: “9. Save and except that the proposed private placement was approved by Bursa Securities and that the Managepay shares were listed on the ACE Market of Bursa Securities, paragraph 17 of the SOC is strictly denied, in reply, the Defendant shall repeat paragraph 6 above and shali further state as follows:

9.1. Around the same time at which the Deceased had agreed to loan the monies to the Defendant, the Defendant had offered the opportunity to the Deceased to participate in the sharing of profits to be made by CISB in respect of the subsequent sale of Managepay shares, which shares were to be S/N rw16na9kvEq2dcGMjAGWJw acquired by CISB through the proposed private placement exercise. It was agreed and understood by the Deceased that any losses made by CISB would be set-off as against the loaned sum;

9.2. In agreeing to the said offer, the Deceased had entered into a Consultancy Services Agreement dated 17.4.2015 with CISB, whereby the Deceased had agreed to share the losses or profits to be made through the subsequent sale of Managepay shares;

9.3. After the Managepay shares were completely disposed off, CISB had ultimately made a loss;

9.4. Accounting for the agreed division profits/losses, the Deceased was required to bear the loss of RM171,876.56;

9.5. As the Deceased had only disbursed the sum of RM910,000,00 in respect of the proposed private placement exercise, the Defendant was only required to repay the sum RM738,123.44 to the

9.6. In this connection, through a combination of telegraphic/interbank transfers, bank cheques, cash cheques and/or cash payments from the Defendant and CISB, the Defendant had in fact made payment totalling RM739,516.00 to the Deceased thereby settling all of loaned amount.

The Defendant denies paragraphs 18 - 23 of the SOC and shall state that he is not obligated to pay the said sum on the basis that the Deceased had not fulfilled the terms of the loan agreement and that, in any case, there has been a full accord and satisfaction of the actual loan amount as set out in paragraph 9 above. [56] The Defendant submits that these averments, in totality, meet the required threshold of raising accord and satisfaction which the Plaintiff would have been aware of and able to respond to. The Defendant further submits that any ambiguity or lack of specificity in his pleaded case S/N rw16na9kvEq2dcGMjAGWJw should not be fatal as the court retains a discretion to allow a point to be raised if it would not result in injustice or prejudice to the other party, relying on established principles of pleading and procedure. [57] On the lack of cause of action argument, the Defendant contends that this was also properly pleaded in paragraph 11 of his Defence. The Defendant avers in that paragraph that the Plaintiff's payment of a RM68,651.43 distribution from the Deceased's estate to the Defendant without any set-off “demonstrates that the Plaintiff had, at all material times prior to 2020, recognised that there was no amounts owing by the Defendant to the Deceased prior to the latter's passing.” Paragraph 11 reads: “11. In addition to the above, the Defendant shall state that the Plaintiff is estopped from claiming the aforementioned sum as she had, by way of the distribution of the Deceased's estate, made an unconditional payment to the Defendant to the sum of RM68,651.43 in 2018. To this end, the Defendant shall state that the Plaintiff’s omission of setting-off the said distribution sum as against the loan amount purportedly due under the loan agreement, demonstrates that the Plaintiff had, at all material times prior to 2020, recognized that there was no amounts owing by the Defendant to the Deceased prior to the latter’s passing.” [58] The Defendant submits that this pleading, though brief, sufficiently raises the point that there was no debt due from the Defendant to the Deceased as at the Deceased's death and therefore no cause of action that accrued to or survived the Deceased which the Plaintiff as executor could rely on to mount the present claim. The Defendant argues that a S/N rw16na9kvEq2dcGMjAGWJw pleading does not have to expressly contain the words “cause of action” to raise this legal argument, as long as the essential facts supporting such argument are averred. [59] The Plaintiff disputes the Defendant's contentions on the sufficiency of his pleadings on both accord and satisfaction and lack of cause of action. On accord and satisfaction, the Plaintiff submits that paragraph 9 of the Defence does not properly plead this defence, whether in form or substance. It is well established that a party's pleading must set out the material facts relied upon with sufficient particulars to sustain the claim or defence and put the opposing party on notice of the case to be met. Bare allegations or mere legal conclusions without proper particularisation do not amount to proper pleading. [60] The Plaintiff submits that paragraph 9, though alluding to some alleged payments by the Defendant and CISB, falls short of setting out the key facts necessary to establish an accord and satisfaction, such as whether there was any agreement by the Deceased to accept the payments and share losses in full settlement of the Defendant's debt under the MOA, or whether the Deceased's conduct unequivocally demonstrated the acceptance of an accord and satisfaction. The Defendant's addition of a single line in paragraph 10 stating that “there has been a full accord and satisfaction” cannot cure these defects or transform what are, at best, mere bare allegations and conclusions into a properly particularised defence. S/N rw16na9kvEq2dcGMjAGWJw [61] On substance, the Plaintiff reiterates that the Defendant failed to put to the Plaintiff's witness during cross-examination that there was any agreement or conduct amounting to an accord and satisfaction, thereby abandoning this defence in any event based on the principles in Aik Ming and Manjit Kaur. The Plaintiff submits that this failure cannot be glossed over by claiming that the defence was sufficiently pleaded all along. The Plaintiff contends a party must put to an opposing witness in cross-examination the nature of his case which contradicts the evidence of that witness, applies to preclude the Defendant from relying on the defence of accord and satisfaction when he failed to squarely challenge the Plaintiff's evidence on this issue during trial. [62] The Plaintiff also relies on the Federal Court decision in Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79, which emphasised that parties are bound by their pleaded causes of action and defences. The court held at paragraphs [28] to [33] that a defendant is not permitted to raise an unpleaded defence for the first time in closing submissions if it was not specifically pleaded in the statement of defence, as this would travel outside the four corners of the pleadings and result in an impermissible departure from the pleaded case. The court stated: "[28] The learned trial judge was wrong on the other hand to accept the unpleaded defence of reportage, which was only raised by the appellants S/N rw16na9kvEq2dcGMjAGWJw in their closing submissions. The learned judge should only have proceeded to consider the pleaded Reynolds defence of responsible journalism or qualified privilege. [29] The law is trite that parties are bound by their pleaded causes of action: see the decision of this court in Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 where it was held as follows: [42] Now it is trite law that the plaintiff is bound by its own pleadings (see R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; Anjalal Anmal & Anor v Abdul Kareem [1969] 1 MLJ 22; Gimstern Corporation (M) Sdn Bhd & Anor v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302 (SC); Joo Chin Kia v Loh Seng Tek [1987] 1 CLJ 194; KEP Mohamed Ali v KEP Mohamad Ismail [1981] 2 MLJ 10 (FC). The plaintiff is not permitted to improve its pleading in any other manner other than by way of an application to amend. Otherwise it would be unfair and prejudicial to the defendants if the plaintiff could now be allowed to raise an issue that was not within the contemplation of the parties in the first place (see Esso Petroleum Co Ltd v SouthPort Corpn [1956] AC 218; Playing Cards (M) Sdn Bhd v China Mutual Navigation Co Ltd [1980] 2 MLJ 182 (FC). (Emphasis added.) [30] The ratio applies with equal force to pleaded defences. In the present case, the defence that the appellants pleaded was three-fold, namely: (1) fair comment; (2) the Reynolds defence of responsible journalism or qualified privilege; and (3) freedom of expression as enshrined in art 10(1)(a) of the Federal Constitution. [31] The defence of reportage is conspicuous in its absence. Not a word of the defence was mentioned in the statement of defence. Nor can the defence be implied from the pleadings. Yet it was relied heavily on by the appellants in their closing S/N rw16na9kvEq2dcGMjAGWJw submissions at the trial. What the appellants did was to ride on their pleaded Reynolds defence of responsible journalism to pursue their unpleaded defence of reportage. ... [33] In the absence of any amendment to the statement of defence, the appellants should not have been allowed to travel outside the four corners of their pleaded defences, namely fair comment, the Reynolds defence of responsible journalism and freedom of expression." [63] Applying this principle here, the Defendant should not be allowed to rely on the defence of accord and satisfaction when it was not properly pleaded with sufficient particulars in his Defence. [64] The Court of Appeal decision in Qi Qiaoxian v Sunway Putra Hotel [2024] 4 MLRA 49 further underscores the importance of parties being bound by their pleadings and the agreed issues for trial. The court held at paragraph [20] that a defendant should not be allowed to raise any issue which was not pleaded in the defence or which had not been previously agreed to by parties in the agreed issues to be tried, as this would be tantamount to the Defendant conducting a trial by ambush and would cause injustice to the Plaintiff. The court held: “[19] Secondly, in accordance with O 34 r 2(2)(k) RC, all the parties in this case had agreed to the 3 Agreed Issues to be Tried. O 34 r 2(2)(k) RC states as follows: "O 34 r 2(2) At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to S/N rw16na9kvEq2dcGMjAGWJw furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including …..

the filing of a statement of issues to be tried' During pre-trial case management of this case, if the Defendant had raised an issue of law and/or fact which was not agreed to by the Plaintiffs, the Defendant could have applied for and obtained leave of the Sessions Court to file the "Defendant's Issue(s) to be Tried". The Defendant did not however file the Defendant's Issue(s) to be Tried in this case. [20] With respect, both the learned Sessions Court and High Court Judges had committed an error of law in failing to consider that the Defendant was bound by the Defence and the 3 Agreed Issues to be Tried ("1st Legal Error"). The Defendant should not be allowed to raise any new issue which -

had not been pleaded by the Defendant in the Defence; and

had been previously agreed to by all the parties in this case pursuant to O 34 r 2(2)(k) RC. If the Defendant were allowed to raise any issue, legal and/or factual, which had not been pleaded in the Defence and which had not been previously agreed to by the Defendant in the 3 Agreed Issues to be Tried -

this would be tantamount to a carte blanche for the Defendant to conduct the Trial by ambush; and

this would cause an injustice to the Plaintiffs because the Plaintiffs would be blindsided by the Defendant's "new" issue to be tried." S/N rw16na9kvEq2dcGMjAGWJw [65] Similarly, the Defendant here should not be permitted to depart from his pleaded case and the agreed issues for trial by raising the defences of accord and satisfaction and lack of cause of action for the first time in submissions, when these defences were neither properly pleaded nor identified as issues for determination at trial. [66] On lack of cause of action, the Plaintiff submits that paragraph 11 of the Defence also does not raise this argument with sufficient clarity or basis. At the highest, paragraph 11 pleads that the Plaintiff's payment of an estate distribution to the Defendant evinced her recognition that no sums were due from the Defendant prior to the Deceased's death. However, the Plaintiff argues that this averment on its own does not amount to an intelligible plea that no cause of action vested in or survived the Deceased. The Plaintiff contends that such an argument is not only legally misconceived, but also inherently inconsistent with the Defendant's primary case in paragraphs 9 and 10 that there was a debt owed under the MOA which was fully settled by an accord and satisfaction. [67] Having examined the Defendant's pleadings in light of parties' submissions and the applicable law, I find that the defences of accord and satisfaction and lack of cause of action were not properly pleaded for the following reasons. S/N rw16na9kvEq2dcGMjAGWJw [68] First, I agree with the Plaintiff that paragraph 9 of the Defence does not sufficiently plead the material facts to establish an accord and satisfaction. The mere recitation of alleged payments and contra losses coupled with a bare statement that “there has been a full accord and satisfaction”, without any facts pleaded on the agreement or acceptance of these payments and losses as fully discharging the debt, does not meet the requirements of precision, materiality and sufficiency imposed by Order 18 rule 12(1) of the Rules of Court 2012. It provides: “(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.” [69] The pleading must set out the material facts relied upon, and not merely the evidence or legal conclusions as appear to be the case in paragraph 9. The pleading leaves unclear the basis on which an accord and satisfaction is being asserted - whether by express agreement, unequivocal conduct giving rise to an estoppel, or some other state of affairs. Without properly pleading the material facts to establish an accord and satisfaction, the Defendant's pleading falls short of fulfilling the crucial function and S/N rw16na9kvEq2dcGMjAGWJw requirement of putting the Plaintiff on notice of the case she has to meet. [70] Here, the material facts needed to sustain an accord and satisfaction defence are simply not pleaded. Paragraph 10 cannot bootstrap a deficient plea in paragraph 9 by the mere addition of a conclusory legal label. As the Federal Court made clear in Mkini Dotcom, parties are bound by their pleaded cases and it is impermissible for a defendant to raise an unpleaded defence for the first time in submissions if it was not specifically set out in the statement of defence. The general principle that a court has discretion to allow an unpleaded point to be raised should only be exercised in clear cases where no prejudice or injustice would be caused to the opposing party. Here, the Plaintiff would clearly be prejudiced if the Defendant were allowed to run a defence of accord and satisfaction without having properly put it to the Plaintiff's witness during cross-examination. The Defendant was bound by his pleadings and should have confronted the Plaintiff's witness with the material facts said to constitute an accord and satisfaction if he intended to rely on this defence. The failure to do so amounts to an abandonment following Aik Ming and Manjit Kaur and cannot be sidestepped by arguing that the defence was sufficiently pleaded all along when the pleadings themselves fall short of the required standard. S/N rw16na9kvEq2dcGMjAGWJw [71] Applying a similarly strict approach to paragraph 11 of the Defence, I find that it also does not properly plead a lack of cause of action on the part of the Deceased. The Defendant has to plead more than a bare denial of the claim based on the Plaintiff's alleged recognition that no debt was due. The Defendant must set out the material facts said to demonstrate that no cause of action accrued to the Deceased as at his death which could form the basis of the Plaintiff's claim as executor. This entails pleading facts to show that the MOA debt never arose in the first place, was extinguished before the Deceased's death, or was otherwise not recoverable by the Deceased's estate. No such facts have been pleaded. The bare reference to the Plaintiff's payment of an estate distribution to the Defendant, without more, does not amount to a proper plea that there was no claimable debt as at the Deceased's death and therefore no actionable claim surviving him, especially when juxtaposed against paragraph 9 which appears to accept the existence of the debt subject only to the alleged accord and satisfaction. A defence must be pleaded clearly and unambiguously, supported by sufficient material facts. It is not for the court to piece together the shreds of a defendant's case in order to stitch up the holes in his pleadings. [72] The importance of parties being strictly bound by their pleadings and the agreed issues for trial, as recognised in Mkini Dotcom and Qi Qiaoxian, further fortifies the conclusion that the defences of accord and satisfaction and S/N rw16na9kvEq2dcGMjAGWJw lack of cause of action have not been properly raised in this case. The Defendant should not be permitted to rely on these defences in submissions when they were neither specifically pleaded in the Defence nor identified in the agreed issues as matters for determination at trial. To allow the Defendant to do so would be to countenance a trial by ambush, in the words of the Court of Appeal in Qi Qiaoxian, and would result in injustice and prejudice to the Plaintiff. [73] For these reasons, I find that the defences of accord and satisfaction and lack of cause of action have not been properly pleaded by the Defendant to the standard required by Order 18 rule 12 of the Rules of Court 2012 and established principles relating to the sufficiency of pleadings. These defences also fail for the independent reason that the Defendant did not put to the Plaintiff's witness during cross-examination the material facts and allegations needed to establish an accord and satisfaction or support his argument that there was no claimable debt owed to the Deceased as at his death which could form the basis of the Plaintiff's present claim as executor. It would be contrary to the principles laid down in Mkini Dotcom and Qi Qiaoxian to allow the Defendant to run these defences in closing submissions when they were unpleaded and not squarely confronted and met during trial. It would be prejudicial to allow the Defendant to do so in the circumstances. S/N rw16na9kvEq2dcGMjAGWJw Whether the Plaintiff claiming a lesser sum shows lack of personal knowledge [74] The Defendant submits that the Plaintiff's reliance on documents and records to pursue the claim, coupled with her concession to reduce the sum claimed from RM1.68 million to RM910,000 upon the Defendant's evidence that only the lower sum was disbursed, demonstrates that the Plaintiff lacks the requisite personal knowledge to mount the claim. The Defendant contends that the Plaintiff's willingness to abandon part of the claim based on the Defendant's evidence shows that the Plaintiff is unsure of the amounts actually disbursed and is fabricating the claim based on a selective reading of available records. The Defendant argues that the Plaintiff's lack of direct involvement in and personal knowledge of the underlying events renders the entire claim baseless and liable to be dismissed, relying on the principle that a person cannot rely on hearsay or documentary evidence alone to establish a claim in the absence of direct personal knowledge. [75] The Plaintiff refutes the Defendant's contention and maintains that the claim is properly founded on her personal knowledge as well as contemporaneous documents, and that her concession on quantum does not negate this. The Plaintiff contends that it is settled law that a plaintiff or witness may rely on documentary records to establish personal knowledge of the matters in issue and is not S/N rw16na9kvEq2dcGMjAGWJw required to have direct first-hand experience of every event and transaction pleaded in order to prove a claim. [76] The Plaintiff points out that her knowledge of the friendly loan granted by the Deceased to the Defendant is in fact based on both her direct personal interactions with the Deceased prior to his demise, as well as contemporaneous records documenting the transactions such as bank transfer slips, CIMB Bank statements and the MOA itself which was discovered by the Defendant. This can be seen from the Plaintiff's evidence during examination-in-chief where she testified that the Deceased had personally informed her about the friendly loan, and that she subsequently discovered relevant bank statements and documents pertaining to the sums disbursed. The Plaintiff also highlights that as the Deceased's wife and executor of his estate, she is well-placed to have knowledge of the Deceased's assets and transactions by virtue of her personal relationship with the Deceased and her responsibility to administer his estate upon his passing. It is not uncommon for an executor, who is often a close family member of the Deceased, to acquire knowledge of the Deceased's affairs through both personal interactions and familiarity with the Deceased's records and documents. The law does not require an executor to have been privy to every transaction during the Deceased's lifetime in order to have sufficient knowledge to administer the estate and pursue claims on its behalf. S/N rw16na9kvEq2dcGMjAGWJw [77] On the Plaintiff's concession to reduce the sum claimed from RM1.68 million to RM910,000 based on the Defendant's evidence during trial that only RM910,000 was disbursed, the Plaintiff submits that this does not undermine the validity or bona fides of her claim and is in fact a responsible position for a litigant to take. A plaintiff is entitled, and indeed obliged, to re-assess a claim based on evidence emerging for the first time during trial and to make appropriate concessions on quantum where this evidence reasonably demonstrates that the initial sum claimed is not sustainable, in order to assist the court to arrive at a just determination and avoid overcompensation. Such conduct reflects a considered and rational approach to the litigation process rather than indicating any deficiency in knowledge or failure to prove the claim as the Defendant suggests. The fact that a plaintiff reduces a claim to account for fresh evidence raised by a defendant does not mean that the Plaintiff is fabricating the claim wholesale and in ignorance of basic facts and events. [78] Support for this principle can be found in the decision of MBSB Bank Bhd v STT Technologies Sdn Bhd & Ors [2020] MLJU 1766 (HC), where it was held at paragraphs [25] and [26] that: “[25] ... The Courts have consistently allowed a plaintiff to enter judgment for a lesser sum than the sum prayed. See the High Court decisions in Cahaya Bumi Mas Sdn Bhd v. Lim Boon Seng & Ors (No 2) [2019] 1 LNS 1293, UEM Land Berhad v. Nor Azmi Abu Talib & Ors [2019] 1 LNS 281, S/N rw16na9kvEq2dcGMjAGWJw Fairon Aluminium Sdn Bhd v. Langkah Terus Sdn Bhd [2011] 1 LNS 421 and Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634.” [79] The Defendants' counsel submitted that pleadings cannot be amended at this late stage after submissions are filed to allow the prayer to relect a different sum. However, I am unable to agree with learned counsel. There is no necessity to amend the pleadings to enter judgment on this lesser sum. It was held by the High Court in Tetuan Tan Teng Siah Realty Sdn Bhd v Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634 (HC), that the Plaintiff entering judgment for a lesser sum than the sum prayed for was not required to amend the sum, since a judgment for a lesser sum would not occasion a failure of natural justice. It was held that: “... The Defendants alleged that the judgment sum was less than the sum prayed; but that did not render the default judgment void or voidable, as the Plaintiff entering judgment for a lesser sum than the sum prayed was not required, since a judgment for a lesser sum would not occasion a failure of natural justice, to amend, the sum prayed.” [80] The High Court in Fairon Aluminium Sdn Bhd v Langkah Terus Sdn Bhd [2011] CLJU 421 (HC) also held at paragraph [12] that: “Although this sum is for a lesser sum than originally claimed it does not offend the principle that parties are bound by their pleadings. This is because judgment can always be entered for a lesser sum than prayed for as it does not occasion a failure of natural justice.” S/N rw16na9kvEq2dcGMjAGWJw [81] These authorities clearly establish that a plaintiff is not precluded from obtaining judgment in a reduced sum, and is not required to amend the original claim, simply because the ultimate quantum awarded is less than the initial amount sought in the pleadings. To hold otherwise would impose an unduly onerous and restrictive burden on claimants to accurately predict the value of their claims at the outset without the benefit of evidence that may subsequently emerge at trial, and would deprive plaintiffs of the opportunity to make appropriate concessions to narrow the issues in dispute and assist the court to arrive at a just outcome. [82] Having perused the evidence, I do not consider that the Plaintiff's reliance on documents and records to establish parts of her claim, or her concession on the reduced loan quantum based on the Defendant's evidence during trial, indicates any fundamental lack of knowledge sufficient to dismiss the claim entirely. The contemporaneous documents relied on by the Plaintiff, such as the bank transfer slips evidencing the disbursements from the Deceased's account to KIBB for the private placement exercise, and the MOA executed by the Defendant acknowledging his receipt of a friendly loan from the Deceased, are clearly relevant to corroborating and supplementing the Plaintiff's knowledge of the transactions. The Plaintiff did not merely pluck these records from the ether, but obtained them from the Deceased while he was alive and through discovery against the Defendant. It would S/N rw16na9kvEq2dcGMjAGWJw be unduly restrictive to suggest that a plaintiff cannot rely on objective documentary evidence to prove a claim unless she had first-hand involvement in or observation of every event and dealing recorded in those documents. [83] Nor do I agree that the Plaintiff's willingness to concede to a reduced claim quantum in light of evidence led by the Defendant necessarily connotes ignorance or fabrication on her part. As the authorities in MBSB Bank, Tan Teng Siah Realty and Fairon Aluminium (supra) establish, a plaintiff is not deprived of a right to judgment in a reduced sum simply because the initial sum claimed was higher, and is not required to amend the claim in order to obtain the lesser judgment sum. A claimant is empowered, and in fact has a positive duty, to re-assess the sustainability of a claim or to make adjustments to the quantum sought in light of evidence emerging at trial indicating a lower measure. This facilitates the court's assessment and resolution of the claim by narrowing the true quantum in dispute. The Plaintiff's conduct in this regard reflects a responsible and rational forensic approach of accounting for evidence that undermines parts of the claim, rather than blindly pressing ahead for the higher sum pleaded, in order to arrive at the correct measure of loss. It does not signify that the claim is being conjured from thin air without foundation or knowledge. S/N rw16na9kvEq2dcGMjAGWJw [84] The evidence indeed shows that the Plaintiff's knowledge of the MOA loan is grounded in both her personal discussions with the Deceased as well as contemporaneous records. During cross-examination, the Plaintiff testified that she had personal knowledge of the Deceased's grant of a friendly loan to the Defendant to fund CISB's private placement exercise from her direct conversations with the Deceased. The Defendant did not challenge this evidence of the Plaintiff's knowledge of the loan as conveyed to her by the Deceased. Further, in re-examination, the Plaintiff clarified that she had personally sighted records and documents relating to the loan which were amongst the Deceased's papers, and that the Deceased had also informed her during his lifetime that he had extended a loan to the Defendant which had yet to be repaid. [85] These aspects of the Plaintiff's testimony demonstrate that her claim against the Defendant is founded on her underlying knowledge of the loan that was conveyed to her by the Deceased at the material time and subsequently buttressed by contemporaneous documents recording the transactions, rather than being formulated in a factual vacuum or through a process of selective cherrypicking as the Defendant suggests. The Plaintiff's reliance on documents to establish the precise sums disbursed, her discovery of the executed MOA from the Defendant, and her measured concession to reduce the sum claimed in light of the Defendant's evidence of the amount he actually received, do not detract from the Plaintiff's core personal S/N rw16na9kvEq2dcGMjAGWJw knowledge of the salient facts that the Deceased granted a loan to the Defendant which remains outstanding. Personal knowledge for the purpose of bringing a claim does not require direct participation in or observation of every transaction, but can be derived from a combination of what was conveyed to the Plaintiff by the Deceased and the Plaintiff's informed review of the Deceased's records and documents as the executor of his estate. [86] For these reasons, I am not persuaded that the Defendant has established that the Plaintiff lacks knowledge or is fabricating the claim merely because she has relied on documents to support the quantification of the friendly loan and has reduced the sum claimed upon the Defendant's disclosure that he received RM910,000 rather than RM1.68 million. The Defendant's attempt to impugn the underlying basis of the claim on this ground is unsustainable. Whether including the MOA sum in the List of Assets entitles the Plaintiff to claim it [87] The Defendant contends that the Plaintiff is not entitled to claim the MOA sum of RM1.68 million as the Deceased's asset or part of his estate because this sum was not expressly dealt with in the Deceased's Last Will and Testament dated 3.1.2017 (“the Will”). The Defendant argues that the Will, which was prepared after the conclusion of the MOA transaction in 2015, contains a detailed and exhaustive distribution of the Deceased's S/N rw16na9kvEq2dcGMjAGWJw assets, indicating that the testator had turned his mind to the question of which properties to bequeath. The Defendant highlights that the Deceased made no mention of the MOA loan as a specific testamentary disposition, despite the Will being a carefully drawn instrument with numerous particular bequests, for example granting the Plaintiff a life interest in the Deceased's properties in Kuala Lumpur, bestowing the Deceased's interest in several family companies to the Plaintiff, and providing cash legacies to his daughter, siblings, relatives and employees. The Defendant submits that the absence of any reference to the MOA loan in these dispositions strongly suggests that as at the date of the Will in 2017, the Deceased did not regard the MOA loan as a remaining asset of his estate, either because it had already been fully repaid prior to his demise as the Defendant asserts, or was not considered a recoverable sum. [88] On this basis, the Defendant contends that the Plaintiff cannot rely on the inclusion of the MOA sum in the list of assets forming part of the petition for the grant of probate, to justify her present claim against the Defendant. The Defendant submits that the “residuary estate” clause in the Will is meant to cover only assets inadvertently omitted from or unknown as at the date of the Will, or property accruing to the Deceased after the execution of the Will. Since the Will was only drawn up in 2017, two years after the MOA, the Defendant argues that if the loan debt remained outstanding and claimable as at the Deceased's death, it S/N rw16na9kvEq2dcGMjAGWJw would have been expressly identified and dealt with in the Will, rather than being “swept up” under the residuary clause. The Defendant submits that where a will contains an express enumeration of assets, properties that are not specifically mentioned in that enumeration should not be regarded as part of the Deceased's estate that can be claimed by the executor. [89] The Plaintiff refutes the Defendant's arguments and maintains that the inclusion of the MOA sum in the List of Assets annexed to the petition for grant of probate properly entitles her to pursue the claim as part of the administration of the Deceased's estate, notwithstanding that the debt was not expressly identified or dealt with as a specific testamentary disposition in the Will. The Plaintiff relies on the decision of the High Court in Kong Kin Lay v Kong Kin Siong [2023] 6 MLRH 512, which directly addressed the operation and effect of residuary clauses in wills to cover assets not specifically enumerated by the testator. In that case, John Lee J held at paragraphs [45] to [47]: “[45] ... I find it in line with the law on residuary clauses which applies to overlooked assets. This Court finds support in the summary of the operation of residuary clauses by Suriyadi Halim FCJ in the Federal Court case of David Wee Eng Siew (administrator to the estate of Lim Eang Tee, deceased) v Lim Lean Seng & Anor (as executors and trustees of the estate of Lim Eow Thoon, deceased) [2018] supp MLJ 50 at p. 58: [19] To overcome any unfinished business of residual property a legal method may be devised i.e., by the S/N rw16na9kvEq2dcGMjAGWJw usage of provisions in the will called the residuary or residue clause whereupon the remaining property will be disposed of... Such a residuary clause therefore addresses any remaining property, after all the debts, taxes, expenses, and specific bequests and devises have been fully satisfied. This residuary clause ensures that the remainder of the testator's property is distributed to the person or persons he intends to bequest. [20] ... Property that comes into the estate after the death of the testator such as insurance proceeds, refunds, court settlement, asset the testator overlooked to include in the distribution, legacies that have lapsed or assets the testator may have acquired after executing the will, may be devised through the above discussed residuary clause. It is a catch-all net that may include a considerable amount of property in many cases. [46] In the current case, the 2014 Will has indeed inserted a residuary clause in paragraph 13 ... [47] By operation of the above residuary clause and by the authority of the decision in Waters v Water (supra), I find that there is no legal penalty or caveat for the non-inclusion of all of the Deceased's properties in the 2014 Will. It can be understood, as stated in David Wee Eng Siew (supra), that it is a common occurrence for testators to have overlooked certain assets for distribution.” [90] The Plaintiff submits that applying the principles set out in Kong Kin Lay and David Wee Eng Siew (administrator to the estate of Lim Eang Tee, deceased) v Lim Lean Seng & Anor (as executors and trustees of the estate of Lim Eow Thoon, deceased) [2018] supp MLJ 50 (FC) cited in Kong Kin Lay, there is no legal bar to including an asset within the S/N rw16na9kvEq2dcGMjAGWJw residuary estate even if it was not expressly listed in the Will at the time the testator executed the instrument. Such residuary clauses are intended to act as a “catch-all” mechanism to address any asset inadvertently omitted from the Will, or unknown to the testator at the time of the Will, or coming into the estate after the testator's death, in order to ensure that no property falls through the cracks and passes to the estate beneficiaries in the shares and proportions set out in the residuary clause. In the present case, clause 6 of the Deceased's Will expressly provides for the residuary estate to be distributed to the Plaintiff. It reads: “6. RESIDUARY ESTATE

6.1 I do hereby give and bequeath the residue of my estate but subject to and after payment of or provision for my funeral and testamentary expenses, debts, payment to guardian and any legacies given by this Will or by any codicil to it and any tax arising in respect of my death to my spouse, LIM MEI JIN (NRIC No. 720408-14-5250) absolutely.

6.2 If the gift in Clause 6.1 fails, then I hereby give and bequeath the residue of my estate but subject to and after payment of or provision for my funeral and testamentary expenses, debts, payment to guardian and any legacies given by this Will or by any codicil to it and any tax arising in respect of my death subject to the Testamentary Trust 2 mentioned in Clause 8 below, to my daughter, HANNAH LOH JIE TSIN (NRIC No. 990326-10- 5116) absolutely.” [91] The Plaintiff therefore maintains that she is properly entitled to include the MOA debt as part of the Deceased's estate based on its inclusion in the list of assets submitted to court to obtain the grant of probate, notwithstanding that it was S/N rw16na9kvEq2dcGMjAGWJw not expressly enumerated in the Will itself. Such inclusion vests her with the requisite authority to pursue the present claim against the Defendant for recovery of the debt. In this regard, the case of Teoh Teik Ooi lwn Ammetlife Insurance Berhad [2024] 3 MLRH 658 (HC) which was referred to by the Defendant himself supports the Plaintiff's position. In that case, it was held at paragraph [36] that: “[36] Untuk Perayu menuntut harta pusaka Simati, perkara utama adalah perlu membuktikan kepada mahkamah bahawa harta yang ingin dituntut mestilah tersenarai terlebih dahulu di dalam aset Simati. Sama ada Perayu berhak kepadanya adalah persoalan yang akan ditentukan kemudian.” [92] The inclusion of the MOA debt as item no. 18 in the list of assets accompanying the grant of probate squarely brings it within the ambit of the principle recognised in Teoh Teik Ooi, i.e. that in order for the Plaintiff to claim the Deceased's asset, what is crucial is to prove that the asset sought to be claimed is first listed in the Deceased's list of assets, which is presently the case. Whether the Plaintiff is ultimately entitled to that asset is a separate question to be determined, but she has the locus standi to bring the claim by virtue of its inclusion in the asset list. In this regard, I respectfully disagree with the Defendant's contention that an asset must be expressly mentioned in the Will itself, as opposed to the list of assets, in order to be claimable by the estate. S/N rw16na9kvEq2dcGMjAGWJw [93] Furthermore, I find that the Defendant's argument on the non-inclusion of the friendly loan agreement in the Will is an unpleaded defence that was never part of the Defendant's defence dated 8.6.2022. Moreover, the non-inclusion of the friendly loan agreement in the Will was never part of the agreed issues to be tried in this case, as set out in the parties' Statement of Agreed Facts and Issues dated 28.2.2024. [94] It is trite law, as reaffirmed by the Federal Court in Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [supra], that parties are bound by their pleaded case and a defendant cannot be allowed to travel outside the four corners of his defence. This unpleaded issue, having been raised for the first time only in the Defendant's closing submissions, must therefore be disregarded by this court. [95] Further, the Court of Appeal in Qi Qiaoxian v Sunway Putra Hotel [supra] held that a defendant should not be allowed to raise any issue not pleaded in the defence or previously agreed as an issue for trial, as it would amount to the defendant conducting a trial by ambush and cause injustice to the plaintiff. Permitting the Defendant to run this new point at this advanced stage would similarly result in prejudice to the Plaintiff. [96] It is also pertinent to note that even assuming the non-inclusion of the friendly loan agreement in the Will was part of the Defendant's pleaded case, the Defendant failed to S/N rw16na9kvEq2dcGMjAGWJw squarely put this argument to the Plaintiff's witness PW1 during cross-examination. While the Defendant did pose some questions to PW1 on whether the friendly loan agreement was mentioned in the Will. he did not go further to specifically put to PW1 that such non-inclusion meant there was accord and satisfaction of the debt. The Court of Appeal in Aik Ming and Manjit Kaur held that a failure to put a pleaded contention to the opponent's material witness during cross-examination amounts to an abandonment of that case and the party is barred from raising it in argument. On this additional ground, the Defendant's belated reliance on the non-inclusion of the friendly loan agreement in the Will to resist the Plaintiff's claim cannot be sustained. [97] I am persuaded by the Plaintiff's arguments on this issue and find that the MOA debt forms part of the Deceased's estate that is claimable by the Plaintiff notwithstanding its omission from the enumerated bequests in the Will. As the court made abundantly clear in Kong Kin Lay and David Wee Eng Siew, it is in the very nature and purpose of residuary clauses to act as a legal device to address any asset of the testator not expressly covered under the specific dispositions in the Will, in order to avoid intestacy and ensure a comprehensive distribution of the estate. Such assets may include, as Suriyadi Halim FCJ observed in David Wee Eng Siew, “asset[s] the testator overlooked to include in the distribution, legacies that have lapsed or assets the testator may have acquired after executing the will”. There is therefore no merit to the Defendant's S/N rw16na9kvEq2dcGMjAGWJw contention that an asset can only form part of the residuary estate if it accrued to the Deceased after the execution of the Will or remained “unfinished business” as at the date of the Will. [98] To the contrary, residuary clauses are intended to capture assets within their wide sweep even if those assets were overlooked by the testator at the time of executing the Will or relates to transactions and events preceding the Will. The mere fact that the MOA was entered into in 2015 before the execution of the Will in 2017 does not preclude the MOA debt from falling within the residuary clause if that debt remained due and owing to the Deceased as at the time of his death and its distribution was not expressly addressed elsewhere in the Will. This is precisely the type of “catch-all” scenario that residuary clauses are meant to address by ensuring that no asset slips between the cracks of the testator's estate planning. It is, as the court recognised in David Wee Eng Siew, “a common occurrence for testators to have overlooked certain assets for distribution” when preparing their wills and the residuary clause operates to remedy such omissions. [99] Further, as the Plaintiff rightly submits, the inclusion of the MOA debt in the list of assets accompanying the petition for grant of probate is legally effective to vest her with the authority to administer the debt as part of the Deceased's estate. This list of assets is effectively incorporated into the grant of probate, which is a formal document issued by the S/N rw16na9kvEq2dcGMjAGWJw court establishing the executor's power to deal with and distribute the Deceased's estate in accordance with the terms of the Will. [100] In conclusion, I find that the Plaintiff is entitled to pursue her claim against the Defendant for the MOA debt forming part of the Deceased's estate, notwithstanding that the debt was not expressly identified and dealt with in the Deceased's Will. The plain language of the Will's residuary clause in clause 6, together with the legal effect of such clauses to address assets overlooked by or unknown to the testator at the time of executing the will as recognised in the authorities of Kong Kin Lay and David Wee Eng Siew, are sufficient to constitute the MOA debt as part of the residuary estate captured by clause 6. There is no requirement that an asset must have accrued to the testator only after the making of the Will in order to fall within the residuary clause. The inclusion of the debt in the list of assets accompanying the grant of probate further clothes the Plaintiff with the formal authority to administer the debt as part of the estate, supported by the reasoning in Teoh Teik Ooi. I do not accept the Defendant's argument that an asset must be expressly mentioned in the testamentary dispositions of the Will itself, as opposed to the list of assets, before it can be claimed by the estate. I do not accept the Defendant's unpleaded argument, raised only in submissions and not put to PW1 during cross-examination, that an asset must be expressly mentioned in the testamentary dispositions of the Will itself, as opposed to the list of assets, before it can be S/N rw16na9kvEq2dcGMjAGWJw claimed by the estate. This contention has been abandoned following the principles in Mkini Dotcom, Qi Qiaoxian, Aik Ming and Manjit Kaur, and also fails on the merits for the reasons discussed above. The Defendant's attempt to defeat the claim in limine based on its non-enumeration in the Will therefore cannot be sustained. Conclusion [101] In summary, I find that: a) There is no accord and satisfaction of the Defendant's obligations under the MOA, as the alleged repayments were either not proven to be for the friendly loan or were not received by the Deceased. There was also no agreement for the Deceased to bear losses that could reduce the loan repayment. b) The MOA and Consultancy Agreement, while factually related, are legally separate contracts between different parties. The Defendant cannot rely on the Consultancy Agreement between the Deceased and CISB either to reduce the loan sum or claim that CISB's payments settled his own debt under the MOA. c) The Defendant did not properly plead the defence of accord and satisfaction. His pleadings also did not S/N rw16na9kvEq2dcGMjAGWJw clearly raise the legal argument of lack of cause of action. d) The Plaintiff's concession to claim a reduced sum of RM910,000 based on evidence at trial does not show that her claim is fabricated or baseless for lack of personal knowledge. e) The inclusion of the MOA loan sum in the List of Assets as part of the Deceased's residuary estate, even without express mention in the Will, is legally proper and clothes the Plaintiff with locus standi to pursue the claim as executrix. [102] Accordingly, I allow the Plaintiff's claim against the Defendant for the sum of RM910,000 with interest at 5% per annum from the date of judgement till full realisation. The Defendant shall also pay costs of this action to the Plaintiff. Judgment for the Plaintiff. 14 February 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) S/N rw16na9kvEq2dcGMjAGWJw Counsel: For the Plaintiff: Chow Siew Wai with Tieh Siaw Siong (Messrs CK Lim Law Chambers) For the Defendant: Loh Yeun Tuck (self represented) S/N rw16na9kvEq2dcGMjAGWJw