Lim Meow Khean & 39 Lg v Pakatan Mawar (M) Sdn Bhd & 5 Lg (WA-24NCC-313-06/2018)

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1 INTHE HIGH COURT OF MALAYA AT KUALA LUMPUR (CIVIL DIVISION) ORIGINATING SUMMONS NO.: WA-24NCC-313-06/2018 In the matter of Taman Perindustrian Air Keroh And In the matter of Sections 11 and 53 of the Specific Relief Act 1950; And Sections 40 and 66 of the Contracts Act 1950 And In the matter of Companies Act 1965 and In the matter of Companies Act 2016 And In the matter of Order 15 Rule 16 and Order 28 of the Rules of Court 2012

Schedule

Schedule 1 herein (collectively “the said Properties”); b) A declaration that 1st Defendant and/or its Liquidators have breached their undertaking provided to the Plaintiffs, the 2nd, 3rd, 4th, 5th and 6th Defendants and/or the Deed of Assignments, particulars are as set out in Schedule 1 herein in failing, refusing and/or neglecting to deliver to the Plaintiffs or their solicitors valid and registrable Memorandums of Transfer and the individual Titles to the said Properties fee from encumbrances as and when they are issued by the relevant authorities, and to refund all monies released by the Plaintiffs and/or 2nd, 3rd, 4th, 5th and 6th Defendants to the 1st Defendant in the event that: (i) Memorandum of Transfer in favour of the Plaintiffs and the Loan Agreement cum Deed of Assignment in their favour are not registered for any reason whatsoever; (ii) The Certificate of Fitness for Occupation in respect of the Properties is not issued by the appropriate authorities; and 6 (iii) Non-completion of the building on which the Properties to be erected are not completed within a reasonable time as stipulated in the Sale & Purchase Agreement. c) A declaration that by disposing the said Properties without redeeming the same from the 2nd, 3rd, 4th, 5th and 6th Defendants, as the case may be, the 1st Defendant and/or its Liquidators, and/or the 2nd Defendant as bridging financier have unjustly enriched themselves at the expense of the Plaintiffs; d) A mandatory injunction to compel the 1st Defendant through the Liquidators, that within 7 days from the date of this order, the 1st Defendant shall take the necessary steps to reassign the rights, benefits and title in the Properties to the Plaintiffs, the 2nd, 3rd, 4th, 5th and 6th Defendants, as the case maybe in relation to the Sale and Purchase Agreement between the Plaintiffs and 1st Defendant; e) Further and/or in the alternative, an Order that the Defendants and/or its Liquidators do refund and/or restitute the Plaintiffs and/or the 2nd, 3rd, 4th, 5th and 6th Defendants, 7 for all purchase price and/or monies released by the Plaintiffs and/or the 2nd, 3rd, 4th, 5th and 6th Defendants to the 1st Defendant to be assessed by the Senior Assistant Registrar; f) Interest thereon at the rate of 5% per annum for all respectively sums from 2.3.1996 or any other date until full settlement; g) Costs; and h) All further and other reliefs that this Honourable Court may deem fit to grant. Salient Background Facts 3. The Plaintiffs were the lawful purchasers of their respective industrial lots known as Taman Perindustrian Air Keroh, Mukim of Bukit Katil, District of Melaka Central and State of Melaka (“the Project”). 4. The 1st Defendant Pakatan Mawar (M) Sdn Bhd (“D1”) was the developer of the Project and was wound up by the Kuala Lumpur High Court Companies Winding Up Petition No. 28-1098-2001 on 20.2.2002. 8 5. Mr Mak Kum Choon and Mr Ng Meng Kwai both from Deloitte Corporation Solutions Sdn Bhd have been appointed as the Liquidators of D1 on 22.7.2010. On 14.9.2017, the winding up court granted leave to the Plaintiffs to commence the proceedings herein pursuant to section 226(3) of the Companies Act 1965. 6. Pursuant to a Loan Agreement dated 22.2.1995, Debenture dated 22.2.1995 and Supplementary Agreement dated 5.7.1995, the 2nd Defendant Malaysia Building Society Berhad (“D2”) had granted loan facilities for the sum of RM26,800,000.00 to D1. D2 is also one of the end-financiers of the Project. 7. The Plaintiffs were the purchasers in respect of the said Project. The Plaintiffs have entered into Sale and Purchase Agreement respectively with the 1st Defendant for 1 ½ Storey and 2 storey build up factories which were to be built on the land under Plots No. T019, T006, T234, T240, T146, T147, T170, T171, T172, T173, T174, T272, T165, T024, T073, T199, TB064, TB065, TB073, TB009, T025, T026, TA048, TA050, TA233, TA052, T003, TB074, TB066, Mukim of Bukit Katil, District of Melaka Central and State of Melaka. D1 was supposed to construct the factories and sub-divide the master title and issue individual titles to the Plaintiffs. 9 8. The purchase price was payable according to the schedule attached to the sale and purchase agreements and vacant possession was to have been delivered within 36 months of the date of execution of the respective sale and purchase agreements. 9. Some of the Plaintiffs are cash purchasers. The others have applied for and obtained loans from D2 or D3 to D6. Some of those who obtained loans had fully paid up their loans. 10. The 3rd Defendant Hong Leong Bank Berhad (“D3”) or its predecessor in title had granted loan facilities to the 9th, 10th, 11th, 12th, 13th. 14th, 15th. 16th, 32nd and 37th Plaintiffs in financing their purchases of the respective factory units. The 17th Plaintiff had settled his repayment of loan with D3 sometime in 2014. 11. The 4th Defendant CIMB Bank Berhad (“D4”) or its predecessor in title had granted loan facilities to the 3rd, 4th, 5th and 19th Plaintiffs. 12. The 5th Defendant Public Bank Berhad (“D5”) or its predecessor in title had granted loans to the 6th, 23rd and 24th Plaintiffs but D5 stated that the loan facilities had been settled in full by the borrowers. 10 13. The 6th Defendant Affin Bank Berhad (“D6”) or its predecessor in title had executed loan facility agreements with the 29th and 30th Plaintiffs but D6 stated that it never disbursed any loan to the said Plaintiffs and deny that it had a customer bank relationship with them. 14. As security for the loan facilities provided by the bank for financing the purchase of the said Properties, some of the Plaintiffs had assigned their rights, interest and title absolutely to their respective banks/end financiers. In connection to this, some of the Plaintiffs had executed the Deeds of Assignment. 15. The salient terms of the Deed of Assignment with D2 were inter alia as follows: “1. In consideration of MBSB having agreed to grant the Assignor(s) the Loan upon the terms and conditions contained in the Loan Agreement the Assignor(s) as beneficial owner hereby ASSIGNS absolutely to MBSB all the Assignor’s(s’) rights title and interests in and to the said Property and the full and entire benefit under the Sale Agreement together with all the stipulations contained therein and all remedies for enforcing the same which MBSB hereby accepts and the Assignor(s) shall at all times hereafter save harmless and keep MBSB indemnified against all actions proceedings damages 11 penalties costs claims and demands by reason or on account of the breach or non-observance of all or any of the stipulations on the part of the Assignor(s) to be performed and observed and contained in the Sale Agreement or otherwise howsoever by reason or on account of this Agreement. 2. The Assignor(s) hereby covenant(s) with MBSB as follows:- (a) to pay all outgoings by way of quit rent assessment rates and taxes and all other whatsoever charges payable to the Government or to any local authority or statutory body or the Management Corporation from time to time payable in respect of the Said Property as and when the same shall become due and payable; (b) to do and or procure to be done all acts deeds and things necessary for the early issue of the individual/strata title in respect of the Said Property in the name of the Assignor(s) as proprietor thereof, and pending such issue as aforesaid to execute simultaneously with this Assignment a Charge-in Escrow (which shall be in the form and manner satisfactory to MBSB) over the Said Property in favour of MBSB to secure the repayment to MBSB of the Loan due and owing and all other monies together with interest thereon at the Prescribed Rate payable and owing by the Assignor(s) to MBSB under and by virtue of the Loan Agreement at the date of execution of the Charge-in-Escrow, such Charge-in-Escrow to be held by or on behalf of MBSB is hereby expressly authorized after the issue of the said individual/strata title to 12 complete the Charge-in-Escrow by filling in all the relevant particulars and to present the same for registration at the cost and expense of the Assignor(s); (c) upon the said Charge-in-Escrow and transfer being registered with the relevant authorities this Assignment shall have no further force or effect. ...We, Pakatan Mawar (M) Sdn. Bhd. hereby acknowledge that on this 21st day of November 1996 the foregoing Agreement was intimated to us by the delivery of a copy thereof and the same has been consented by us and duly noted in our records. We hereby undertake and agree to deliver to MBSB the individual/strata title of the Said Property together with the registrable Transfer executed in favour of the Assignor(s) upon the issuance of the individual/strata title”. 16. The salient terms of the Deed of Assignment with D3 (formerly as EON Bank) were inter alia as follows: “5. For the consideration, aforesaid the Borrower hereby ASSIGNS unto the Lender all his rights title and interest in the said Parcel/Property and the full and entire benefit of the said Agreement by way of security for the Loan hereby granted. ...We, Pakatan Mawar (M) Sdn. Bhd. (Company No. 217798V) a company incorporated in Malaysia and having our registered office at Tingkat 6, 13 Bangunan Bank Utama, 56, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur and having a do hereby acknowledge that the foregoing Loan Agreement cum Deed of Assignment was intimated to us by the delivery of a true copy thereof and the same has been duly noted in our records and we hereby agree and undertake with you as follows: (a) To deliver the relevant individual/strata document of title to the said Property free from encumbrances upon issuance of the same from the relevant authorities; (b) To refund the Loan hereunder released immediately on demand in the event the Memorandum of Transfer in favour of the Borrower is rejected for registration for any reason whatsoever and/or in the event of non-completion of the construction of the said Parcel/Property known as Plot No. T003, Taman Perindustrian Air Keroh, Melaka held under Master Title LM No. 60, Lot No. 894, Tempat Sungai Gapam, Mukim Bukit Katil, Negeri Melaka and further confirm that we consent to this Agreement”. 17. The salient terms of the Deed of Assignment with the former Oriental Bank Bhd (with the assets and liabilities now vested in D4) were as follows: “1. The Assignor as beneficial owner hereby assigns unto the Bank absolutely all the rights title and interest of the Assignor in and to the said Property with 14 full benefit granted thereby all stipulations therein contained and all remedies for enforcing the same. 2. Notwithstanding this Assignment the Assignor shall and hereby undertakes to continue to observe perform and be bound by all conditions covenants and stipulations expressed and contained in the Sale Agreement. The assignor shall at all times hereafter save harmless and keep the Bank indemnified against all actions, proceedings, claims, demands, penalties, costs and expenses which may be brought or made against or incurred by the Bank by reason or on account of the non-observance of all or any of the stipulations contained in the Sale Agreement. 4. The Assignor shall and hereby expressly agrees covenants and undertakes to do and exercise all acts deeds instruments and things which the Bank may require or stipulate for the purpose of effecting and/or completing anything and/or any transaction mentioned in this clause. ...ENDORSEMENT OF DEVELOPER’S CONSENT We, Pakatan Mawar (M) Sdn Bhd (217798-V), a company incorporated in Malaysia (Note: not applicable in Sarawak) with its registered office at Tingkat 6, Bangunan Bank Utama, 56, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur and having a place of business at No. 32, Lorong Setia 1, Air Keroh Heights, 75450 Melaka DO HEREBY CONSENT to the foregoing Deed 15 of Assignment which was intimated to us by delivery of a true copy thereof and which has been duly noted in our records. We confirm that we have taken and are taking all reasonable steps to obtain a separate issue document of title to the said Property. We undertake to deliver to ORIENTAL BANK BERHAD or their Solicitors, the separate Document of Title or strata title to the said Property upon issue thereof together with the Memorandum of Transfer in favour of the Assignor and any other documents as shall be incumbent upon us to produce to secure the registration of the Assignor as the registered proprietor of the said Property”. 18. The salient terms of the Deed of Assignment with D4 were inter alia as follows: “4. ASSIGNMENT For the consideration aforesaid, the Assignor(s) as beneficial owner HEREBY ASSIGNS ABSOLUTELY unto the Bank: (a) All rights interests benefits advantages permits licenses and remedies of the Assignor(s) in under or arising out of the Sale and Purchase Agreement; and 16 (b) All the estates rights titles and interests of the Assignor(s) in and to the Property pursuant to under or arising out of the Sale and Purchase Agreement. 11. COVENANTS IN RESPECT OF THE PROPERTY The Assignor(s) hereby covenants and undertakes with the Bank that notwithstanding that the Bank shall hold the Property as beneficial owner by virtue of the Assignment herein the Assignor(s) shall at all times during the continuance of this Deed: (a) let the Bank have the custody of possession of the stamped original Sale and Purchase Agreement; ...(d) observe and comply with all conditions, covenants, restrictions and category of land use, express or implied, binding or affecting the Property or to which the Property is subject and the provisions of any Act, Ordinance, order, rule, regulation or law now or hereafter affecting the same and at all times hereafter indemnify and keep indemnified the Bank against all claims, demands, actions, proceedings, costs and expenses made taken or incurred by reason of any failure to observe or comply with the same; ...(h) observe and perform all the covenants, undertakings and stipulations contained in the Sale and Purchase Agreement or any other agreement executed between the Assignor(s) and the Vendor in connection with the 17 Property and on the part of the Assignor(s) to be observed and performed and shall at all times hereafter save harmless and keep the Bank indemnified against all claims demands actions penalties legal proceedings costs and expenses which may be brought or made against or incurred by the Bank by reason or on account of the non-observance of all or any of the covenants undertakings and stipulations on the part of the Assignor(s) contained in the abovementioned agreements or otherwise. (i) not sell, transfer, assign, charge or otherwise howsoever deal with the Property or any part thereof or any interest therein or make the same subject to any burden, charge, encumbrance, liability or lien whatsoever or make any application for the alteration of the category of land use in respect of the Property or for the rescission, removal or amendment of any condition or restriction affecting the Property without the written consent of the Bank first had and obtained which consent may be given or refused without assigning any reason there for either absolutely or on such terms and conditions as the Bank deems fit and the decision of the Bank shall be final and conclusive; ...CONSENT We, Pakatan Mawar (M) Sdn Bhd. A company incorporated in Malaysia with its registered office at Tingkat 6, Bangunan Bank Utama, 56, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur and having its place of business at No. 32, Lorong Setia 1, Air Keroh Heights, 75450 Melaka being the Vendor of the Property described in item 4 of the Schedule hereto do hereby acknowledge and consent to the foregoing Assignment from the Assignor(s) in favour of 18 SOUTHERN BANK BERHAD and confirms that the same has been duly noted in our records. We undertake and covenant that upon the issuance of the issue document of title to the Property, we shall deliver to SOUTHERN BANK BERHAD the said issue document of title and cause to deliver together with a valid and registrable and duly stamped Memorandum of Transfer of the Property free from all encumbrances in favour of the Assignor(s) and all such consents and instruments as may be necessary to effect the transfer unless otherwise instructed in writing by SOUTHERN BANK BERHAD”. 19. The salient terms of the Loan Agreement cum Assignment with Hock Hua Bank Berhad (now known as D5) were inter alia as follows: “SECTION 13.01 ABSOLUTE ASSIGNMENT In consideration of the Facility granted to the Borrower upon the terms and conditions contained in this Agreement, the Borrower as beneficial owner hereby absolutely assigns all of the Borrower’s rights and title to and interest whatsoever in the Property including all rights and interest of the Borrower in the Sale and Purchase Agreement to the Bank”. ...CONSENT I/We, Pakatan Mawar (M) Sdn Bhd a company incorporated in Malaysia and having our registered office at Tingkat 6, Bangunan Bank Utama, 56, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur and having a place of business at No. 32, Lorong Setia 1, Air Keroh Heights, 75450 Melaka being the 19 developer of the Property do hereby consent to the foregoing Assignment and the same h as bee noted in our records. I/We further undertake to execute all such instruments and agreements and obtain such consent as may necessary to transfer to the Borrower the title to the Property. Unless otherwise instructed by the Bank in writing, I/We will deliver the issue document of title to the Property free from all encumbrances to the Bank upon issuance of the same together with a valid and registrable memorandum of transfer in favour of the Borrower”. 20. Subsequently, sometime in 29.7.2015, without the knowledge or consent of the Plaintiffs or D3, D4, D5 and D6, the Liquidators and D1 disposed of the said Properties to PDG Development Sdn Bhd (“PDG”). The proceeds of sale of the said Properties for the sum of RM20,000,000.00 were used to settle the indebtedness of D1 to D2 (being the secured of creditor and bridging financier of D1). 21. The Plaintiffs’ complaints are very simple. They had purchased from D1 the various factory units but the Project was abandoned and D1 was wound up in 2002. Only part payment of the purchase price was made because the Project was abandoned. Then the Liquidators sold the master title and the whole Project was transferred to PDG. The Plaintiffs are seeking recourse against D1 and D2 in respect of the allegedly wrongful sale of the units purchased by them. 20 Findings Of The Court 22. In respect of those Plaintiffs who had already assigned their rights, title and interest under their sale and purchase agreements absolutely to D2 to D6 as end financiers, the first issue is whether the said Plaintiffs even have a right to bring this action against the Defendants. 23. In the Supreme Court case of Hipparion (M) Sdn Bhd v Chung Khiaw Bank Ltd [1989] 1 CLJ (Rep) 41, Gunn Chit Tuan SCJ held as follows at p. 44: “Looking at the document we agreed with the conclusion of the learned judge that the deed was an absolute assignment and not purporting to be by way of charge only within the meaning in s 4(3) of the Civil Law Act 1956. The deed clearly purports, and is intended in point from (sic) to be an absolute assignment because of the use of the word ‘ absolutely’. The intention of the parties clearly was that it should be absolute in the sense that the assignee should have all the rights, title and interest of the assignor in the sale and purchase agreement…” (See also the case of Nouvau Mon Dor (M) Sdn Bhd v Faber Development Sdn Bhd [1985] CLJ (Rep) 231) 21 24. In the case of Veeriyah Gothandabani v Majestic Heights Sdn Bhd (In Liquidation) [2017] 1 LNS 1158, the Court struck out the case by a purchaser of property who claimed inter alia that he was the bona fide purchaser of the property on the ground that the plaintiff had absolutely assigned all his rights under the sale and purchase agreement to Malayan Banking Berhad. 25. Accordingly, I am of the view that those Plaintiffs who had assigned all their rights, title and interest in and to the sale and purchase agreements to the end financiers absolutely have no right to bring these proceedings against the Defendants since they have not obtained a re-assignment of their rights and interests in and to the sale and purchase agreements. This is despite the assignee not objecting to the purchasers suing the Defendants. 26. I have been referred to the Court of Appeal decision in Osaka Resources Sdn Bhd & Ors v Foo Holdings Sdn Bhd and another appeal [2014] 1 MLJ 461 where the Court of Appeal seemed to have said that the purchasers, notwithstanding they have absolutely assigned all their rights and interests under a sale and purchase agreement to a financier might still have some locus to sue the financier with the 22 consent of the financier or by joining the financier as a co-defendant. This is what the Court of Appeal said: “The assignment was not like an assignment in relation to a facility to obtain a loan from the bank, where the assignor might have a right to redeem the property, and in consequence might have some locus to sue based on the underlying contract with the consent of the bank or if no consent was given to include the bank as a co-defendant and seek suitable declarations or orders or directions from the court against the bank to avoid any challenge as to the issue of locus.” 27. This is obviously an obiter dictum and is not binding on me. The words used by the Court of Appeal were “might have some locus… “In any event, the Plaintiffs in this case are not seeking any orders against the banks. Applying first principles, since some of the Plaintiffs have transferred and assigned all their rights and interest under the sale and purchase agreements to their end financiers absolutely, they ought not to have any right to claim against D1 or D2. I would dismiss their claims on this basis. 28. I will now deal with the claims of the other Plaintiffs who have not assigned their rights and interest under the sale and purchase agreements. 23 29. One cannot help but sympathise with the plight of the Plaintiffs. They had paid whatever was due under the sale and purchase agreements but D1 had defaulted under the agreements and had abandoned the Project. Thereafter, the Liquidators had, in complete disregard of the Plaintiffs, sold the master title to another purchaser and paid the purchase price to D2 as the bridging financier. Is there any recourse available to the Plaintiffs in a situation where D1 is in liquidation? 30. Unfortunately, it is settled law that the Plaintiffs are not beneficial owners of the units purchased by them in the absence of them paying the full purchase price. 31. In the case of Tan Ong Ban v Teoh Kim Heng [2016] 3 CLJ 193 the Federal Court said this: “[36] The principle of beneficial ownership differentiates between the rights of a purchaser of a property who has fully settled the purchase price with one who has not. This principle clothes a purchaser who has settled the full purchase price with a distinct privilege equivalent to a legal owner, although he or she has yet to be registered as the proprietor of the property. 24 [37] Under this principle of beneficial ownership, the vendor becomes a bare trustee for the purchaser in respect of the transacted property, while the purchaser assumes the position of beneficial owner having a right in rem over the property. The purchaser is commonly accepted as having a beneficial interest in the land on the execution of the contract and upon which specific performance may be granted by the court. This beneficial interest is also sufficient to entitle the purchaser to enter a caveat under the NLC. [38] On the other hand, a purchaser who has not settled the full purchase price does not enjoy such benefit. The right of such purchaser is contractual in nature and in personam. He or she does not have any beneficial interest in the property. In the event of dispute, such purchaser can only institute action against the vendor with whom he or she has contracted. In other words, such purchaser merely enjoys a contractual right or a right in personam.” 32. The Federal Court held that the principle of beneficial ownership applied equally to negotiated contracts as well as statutorily formatted contracts. 33. If the Plaintiffs only have rights against D1 under the sale and purchase agreements, it is settled law that it is only open to the Plaintiffs to lodge a proof of debt against the Liquidators of D1 for breach of contract. 25 34. In the case of Pakatan Mawar (M) Sdn Bhd (Dalam Likuidasi) v Nurul Akhmar Mohd Shafiee & 7 Yang Lain [2013]1 LNS 1031, where the facts relate to D1 in the proceedings herein and its purchasers, the Court held that the sale and purchase agreement becomes impossible of performance when the Project is abandoned when the company has been wound up and there are no funds to complete the project. The Court held that the only remedy to the purchasers is to file a proof of debt with the Liquidators of the vendor. 35. In that case, the court held as follows: “Setelah mempertimbangkan afidavit-afidavit yang telah difailkan dan penghujahan, lisan dan bertulis, peguam-peguam yang terpelajar, saya bercenderungan untuk bersetuju dengan penghujahan Peguam Plaintif yang terpelajar. Dicatatkan apa yang membezakan kes ini dengan kes-kes seumpama ialah Plaintif di sini merupakan sebuah syarikat yang telah digulungkan pada tahun 2002. Dan projek di sini juga merupakan satu projek yang terbengkalai. Kedudukan ini mempunyai implikasi perundangannya tersendiri… … Dalam keadaan kes ini, tidak dapat dinafikan bahawa projek yang dibangunkan oleh Plaintif telah terbengkalai sejak dari tahun 1998 sehingga 26 Plaintif digulungkan. Saya bersetuju dengan penghujahan Peguam Plaintif yang terpelajar bahawa kontrak antara Plaintif dan Defendan-Defendan semestinya, jika tidak diteruskan, akan terbatal jika kontrak itu tidak mungkin dapat dilaksanakan selaras dengan peruntukan seksyen 57(2) Akta Kontrak 1950. Dalam kes ini, pelikuidasi yang bertindak di bawah seksyen 287(1) Akta Syarikat 1965 dan selaras dengan tangunggjawab utama dan kuasa mereka (lihat seksyen 233 dan 236) , tidak meneruskan dengan projek Plaintif kerana ketiadaan dana. Ekoran daripada itu, seksyen 66 Akta Kontrak 1950 terpakai dan remedy Defendan-defendan adalah untuk membuat tuntutan kewangan terhadap Plaintif. Memandangkan Plaintif telah digulungkan, Defendan-defendan,yang kini menjadi pemiutang yang tidak terjamin (unsecured creditor), perlulah membuat tuntutan secara memfailkan bukti hutang selaras dengan peruntukan seksyen 291 Akta Syarikat 1965.” 36. In the Veeriyah case, the Court relied on the abovesaid case in Pakatan Mawar and dismissed the claim of the purchaser who had also lost his unit of apartment to a subsequent purchaser. 37. In this case, D1 submitted that it had breached the respective sale and purchase agreements between 1.2.1999 to 21.7.2000 when it failed to complete and deliver vacant possession of the respective lots to the Plaintiffs within 36 months from the dates of the agreements. D1 submitted that there was no evidence whether the Plaintiffs had accepted the said breach or chosen to keep the sale and purchase 27 agreements alive. D1 relied on the Federal Court case of Chin Kim & Anor v Loh Boon Siew [1970] 1 MLJ 197 where the plaintiff there did not take any action in respect of the breach committed by the defendant and the Federal Court held that the failure on the part of the plaintiff to make up his mind had compelled the court to conclude that the plaintiff had accepted the breach. At page 198, the Federal Court held as follows: “In this case one should have thought that the purchaser would not hesitate to make his position clear one way or the other. Yet he did nothing of the sort. If he disagreed that the vendors were entitled to repudiate, he had only to say so. Had he been at all desirous of completing the purchase-even without vacant possession-all he had to do was perfectly simple, namely, give notice to the vendors of his intention to do so and tender the whole purchase price. What else were the vendors reasonably to assume by reason of the complete silence except that he acquiesced in their tearing up the agreement? What was the proper inference the court should have drawn from his conduct? Should not he, as a reasonable man, have taken action within a reasonable time after a breach of contract by the other party, unless he in fact acquiesced in its rescission? In my opinion, a lapse of over 4 years-between June 8, 1962 and August 9, 1966- is not within measurable distance of the reasonable time he needed to make up his mind. His conduct therefore compels me to conclude that he accepted the rescission.” 28 38. In that case, the court held that the purchaser’s inaction for 4 years meant that he had accepted the rescission and he could not thereafter sue for specific performance of the contract. Accordingly, the Plaintiffs in this case should have a reasonable period of time to indicate whether they accept or do not accept the breach on the part of D1. That decision need not be made on the date of the breach. 39. D1 was wound up by the court on 20.2.2002. I agree with the submission of D1 that performance of the sale and purchase agreements on the part of D1 became impossible after D1 was wound up, as D1 was insolvent and the liquidators did not have the funds to complete the Project. Pursuant to section 57(2) of the Contracts Act 1950, a contract to do an act which, after the contract is made, becomes impossible, becomes void when the act becomes impossible. 40. I am of the view that if the Plaintiffs merely have a contractual right under the sale and purchase agreements, the agreements would have become void after the liquidation of D1 as it was impossible for D1 to complete the Project due to its insolvent state. 41. In that case, the remedy of the Plaintiffs would be that under section 66 of the Contracts Act 1950 which stipulates that when an 29 agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make restitution for it, to the person from whom he received it. Accordingly, the Plaintiffs would be entitled to the repayment of the purchase price paid to D1. 42. Even if I were wrong in holding that the agreements had become void upon the winding up of D1 and even if the winding up merely constituted a breach of contract on the part of D1, on the authority of Chin Kim (supra) the Plaintiffs have to make up their minds whether they wish to accept the breach as terminating the agreements or not within a reasonable period of time and the Plaintiffs did nothing until after the master title was disposed of by the liquidators of D1 in 2015. That was some 13 years after the winding up of D1. On the authority of Chin Kim (supra) a long time prior to 2015, the agreements would already have been considered terminated and the Plaintiffs deemed to have accepted the breach of the agreements. 43. However, the Plaintiffs submitted that their cause of action against D1 is not for breach of contract. The Plaintiffs submitted that they have a beneficial interest in the units or lots purchased by them. 30 44. The Plaintiffs relied on the case of Lysaght v Edwards [1875 L 20a] wherein it was held by Jessel M.R. that: “It must, therefore, be considered to be established that the vendor is a constructive trustee for the purchaser of the estate from the moment the contract is entered into.” “In other words, the position of the vendor is something between what has been called a naked or bare trustee or a mere trustee ( that is, a person without beneficial interest) and a mortgagee who is not in equity ( any more than a vendor) the owner of the estate.” 45. The Plaintiffs also relied on a few other cases such as Ahmad bin Salleh & Ors v Rawang Hills Resort Sdn Bhd [1993] 3 MLJ 211, Peninsular Land Development Sdn Bhd v K Ahmad [1970] 1 MLJ 149 and EON Bank Berhad v Tay Guan Hui & Ors [2001] 5 MLJ 374 which are to the same effect as Lysaght v Edwards. 46. However, all those cases must be read in light of the Federal Court decision of Tan Ong Ban (supra) which held very clearly that where a purchaser has not paid the full purchase price, his right is only ad interim or in personam and contractual in nature. He does not have beneficial 31 ownership of the property until he has paid the full purchase. Also, that of Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12, wherein the Federal Court held that it is not a correct description of the relationship between the parties of a contract of a sale and purchase of land to say that from the time the contract was concluded, the vendor is a trustee for the purchaser because, at that stage, they are only parties to a contract of sale and purchase which a court may, in certain circumstances, decree specific performance. 47. In the recent Court of Appeal decision of Ooi Siew Eng @ Ooi SIw Eng & Ors v Link Ventures Sdn Bhd (In liquidation) and another appeal [2018] MLJU 76, Mary Lim JCA stated of the bare trustee concept and beneficial ownership in relation to the decision in Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 23 as follows: “[32]… This then brought the Court to the position following Jessel MR’s dicta in Lysaght v Edwards (1875-76) 2 CH D 499, that where there is “ a valid contract for sale, the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase money, and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivering possession.” Mindful that Lysaght v 32 Edwards was a case concerning a conveyance under a will and not a dispute between vendor and purchaser, the Supreme Court expressed the view that applying Jessel MR’s dicta in unqualified terms “would be misplaced”. The Supreme Court accepted that it was “too late now to question the applicability of the concept of the bare trust in a vendor/purchaser situation in Malaysia”; but stressed that the concept will have “to be applied in a modified form”. [33] After examining some earlier decisions of Peninsula Land Development Sdn Bhd v K Ahmad [1970] 1 MLJ 149, Temenggong Securities Ltd & Anor v Registrar of Titles, Johor & Ors [1974] 2 MLJ 224 and Karrupiah Chettiar v Chettiar [1971] 2 MLJ 116; and the commnentary by Judith Sihombing in her book National Land Code: A Commentary (2nd Ed 1992) (at page 801): the Supreme Court accepted that the concept of the bare trust in a vendor/purchaser situation applies. However, against the Torrens system, that relationship does not arise from the time a contract of sale and purchase of land is concluded. The vendor is a trustee for the purchaser “ only when the subject matter of the agreement of sale and purchase, for the purchaser, is on completion, that is to say, upon receipt by the vendor of the full purchase price, timeously paid and when the vendor has given the purchaser a duly executed, valid and registrable transfer of the land in due form in favour of the purchaser, for it is then that the vendor divests himself of his interest in the land.” 48. I am of the view that the Plaintiffs in this case do not have any beneficial interest in any property firstly because they have not paid the 33 full purchase price and secondly because there is no sub-divided title issued for the plots purchased by them. 49. In this case, the Plaintiffs have not joined the purchaser, PDG Development Sdn Bhd as a party and it appears that the sale to PDG Development Sdn Bhd has been completed because it is said that the purchase price of RM20,000,000.00 has been paid to D2. This can only be because PDG Development Sdn Bhd has obtained an indefeasible title to the master title or titles. Since PDG Development Sdn Bhd’s title is not challenged by the Plaintiffs, it is obviously impossible for them to obtain any order for the transfer of the plots to them. This much the Plaintiffs admit. 50. The Plaintiffs also relied on the Federal Court case of RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors and another appeal [2016] 1 MLJ 175 to say it has beneficial interest to a refund of the purchase price. In that case, the respondent entered into an agreement with Atlas Corp Sdn Bhd (“Atlas”) to purchase a property which was partly financed by the appellant (“RHB”) with the property as security. The respondent absolutely assigned its rights, interests and title in the property to the bank. The respondent and the bank filed an action against Atlas on the ground that Atlas breached the terms of the 34 agreement. The court ordered refund of all monies paid but Atlas failed to comply with the order. The respondent continued with the repayment to the bank until the loan facility and the interest were fully paid. Meanwhile, Atlas was wound up and the liquidators refused to comply with the order. The respondent filed an action to set aside the act and/or decision of the liquidators to sell the property, and for an order to declare that the property was held by the liquidators upon trust for the respondent. The court dismissed the action by the respondent. RHB informed the respondent that it would not execute the deed of release and reassignment of the securities and secured properties on the ground that the right of the respondent to the property was lost upon rescission of the agreement. The respondent commenced an action against RHB and the trial court granted the declarations and injunctions sought by the respondent. The Court of Appeal dismissed the appeals by RHB, Atlas and the liquidators. The Federal Court allowed the appeal by RHB but dismissed the appeals by Atlas and the liquidators. 51. It was inter alia held by the Federal Court that when the full purchase price was paid in 1997, the property belonged to the respondent as purchaser and RHB as assignee and ceased to be an asset of Atlas. But with rescission, the property would revert to Atlas, only by way of mutual restitution. However, mutual restitution did not 35 follow. Thus the liquidators could not deal with the property as the beneficial property of Atlas, as without mutual restitution, the property would not revert to Atlas. 52. That case is distinguishable. In that case, it was held that the property belonged to the respondent when he had paid the full purchase price. The property never reverted to Atlas because there was no mutual restitution, so the liquidators of Atlas dealt with the property without it having properly reverted to Atlas. The court imposed a remedial constructive trust and held that the liquidators are obliged to pay the respondent the refund of the purchase price. In the present case, D1 remained the beneficial owner since the full purchase price had not been paid. Accordingly, no property can be said to belong to the Plaintiffs beneficially and the liquidators did not sell any property belonging to the Plaintiffs when they sold the master title. 53. The Plaintiffs also relied on the case of In re Eastgate [1905] 1 KB 465 for the proposition that “where a purchaser is misled into buying goods he is automatically entitled upon rescinding the contract to a proprietary right superior to those of all the vendor’s other creditors, excisable against the whole of the vendor’s assets.” In that case, the bankrupt bought and took possession of goods by falsely presenting to 36 the persons from whom he got the goods that he intended to pay for them when in fact he did not intend anything of the kind. 54. Mr Bowling is a vendor. When he discovered the fraud, he disaffirmed the contract and took back his goods. The court held that he was only taking, though taking it in a wrong way, what was only his own. But those facts are very different from the present facts. In that case, the court would have held that property in the goods reverted to Mr Bowling upon rescission of the contract for the sale of goods. In the present case, there is nothing to re-vest in the Plaintiffs. 55. Even in a case where the full purchase price has been paid by the Plaintiffs, it would appear that the Plaintiffs cannot be said to be the beneficial owner of any “property” until such time as the sub-divided title has been issued which is not the case here. In the case of Wan Noor Kamariah Binti Wan Jaafar v Aritah Realty Sdn Bhd and 4 others and 4 other cases in Kuala Lumpur High Court Suit No. WA-21NCVC- 82-09/2016, Justice Darryl Goon (JC) held that the purchasers of units or flats in a development wherein strata title has not been issued and who have paid the full purchase price to the vendor have no beneficial interest or ownership in any property. 37 56. The court there held as follows: “Quite apart from whether the doctrine of indefeasibility applies or not, can any property rights, either in law or in equity, be acquired in respect of “property” that has yet to come into existence? Without the issuance of strata titles, what the Plaintiffs have are rights ex contractu and they are in the form of choses in action. The Plaintiffs’ rights are in respect of what they had contracted for and embodied in their respective sales and purchase agreements. Until the strata titles to the Units they had contracted to buy are issued, the Plaintiffs’ rights remain in personam as against Aritah Realty and the Developer, who had undertaken to apply for and secure strata titles for the Units in Wisma Aritah. For those Plaintiffs who had contracted to purchase their units in Aritah Realty from purchasers who had contracted for them with Aritah Realty and the Developer, they should have been assigned the rights under those contracts with Aritah Realty and the Developer…These Plaintiffs/purchasers cannot even claim to have any right in rem because what they had contracted for i.e. property with strata title, had not come into existence. They also cannot claim to have any rights ad rem…because without any strata titles issued, there cannot exist any rights to any existing property. All that exists, without strata titles being issued, are rights in contract.” 38 57. The Court there held that the concept of bare trustee and the acquisition of beneficial interest can only arise if there is in existence a registrable title capable of being transferred. 58. The principles in that case, although that case dealt with strata titles, are also applicable in the present case. The purchasers expect to be transferred the sub-divided titles in respect of the plots purchased by them and these were never issued. Accordingly, even if they had paid the full purchase price (which is not the case here) they would still have no beneficial interest in the “property” purchased by them. All they have are choses in action against D1. 59. The Plaintiffs submit that their claim is not for breach of the sale and purchase agreements but is for breach of the undertaking given by D1 to the various end financiers. 60. Since the undertaking is given by D1 to the end financiers and not to the Plaintiffs, it is trite that only the end financiers can sue for any breach of the undertaking. It is not open to the Plaintiffs to sue for breach of undertaking given to the end financiers by D1. In Bacom Enterprises Sdn Bhd v Jong Chuk & Ors [2011] 5 MLJ 820 the Court 39 of Appeal held that a non-party cannot enforce or rely for protection on its provision even if some provisions were intended to benefit him and this was what the Court of Appeal held: “[101]…Bacom is clearly not a party to the development agreement. In this respect, we would unhesitatingly agree with the submission of learned counsel for Bacom that Bacom has agreed with the first to the fifth defendants that it is bound by the terms of the development agreement is a matter between the two parties and cannot confer contractual privity between the plaintiff and Bacom. The plaintiff is definitely not a party to the sale agreement and hence cannot enforce or rely for protection on its provisions even if some provision therein was intended to benefit him. In Scruttons v Midland Silicones Ltd [1962] AC 446, which dealt with the English position on the doctrine of privity, Lord Reid said ( at pp 472-473): In considering the various arguments for the appellants, I think it is necessary to have in mind certain established principles of the English law of contract. Although I may regret it, I find it impossible to deny the existence of the general rule that a stranger to a contract cannot in a question with either of the contracting parties take advantage of provisions of the contract, even where it is clear from the contract that some provision in it was intended to benefit him. That rule appears to have been crystallised a century ago in Tweddle v Atkinson (1861) 1 B & S 393 and finally established in this House in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Lrd (1915) AC 847)” 40 61. The Plaintiffs argue that they have the right to sue as D2 to D6 as the end-financiers are agents of the Plaintiffs. They relied on the case of Ho See Sen & Anor v Public Bank Bhd & Anor [1988] 2 MLJ 170. This was a case where vacant possession was not delivered as the building was still uncompleted. To finance the project, the appellants obtained a loan financing from Public Bank. As security, the appellants assigned the benefits under the sale and purchase agreement (SPA) to the respondent because no separate title has been issued. The property purchased was still a building lot under an approved layout plan. After taking the assignment, Public Bank gave an undertaking to the Vendor that it will pay any monies due under the SPA. The appellants took an injunction against the Public Bank to restrain it from disbursing any loan. The Supreme Court allowed the injunction and held that Public Bank (end financier) is an agent to the borrower and is only authorised to act and/or must act for the benefit of the borrower. 62. Even though the Court in that case held that the end financier is the agent of the borrower (insofar as it relates to the payment of the purchase price which is the obligation of the borrower as purchaser) it does not mean that the consent to assignment is given by D1 to the end financiers as agents of the Plaintiffs or that the end financiers are agents 41 of the Plaintiffs for all purposes or for that purpose. If it is true that the Undertaking by D1 was given to the end financiers as agent for the purchasers then only the purchasers can sue in respect of the Undertaking, as pursuant to section 179 of the Contracts Act 1950, contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner and will have the same legal consequences as if the contracts had been entered into and the acts done by the principal in person. It cannot be said to be the case that it was anticipated that the Undertaking to the end financiers would be enforced, not by the end financiers, but by the purchasers. In any event, only an undertaking to refund the loan amount in the event of breach was given to D3 and not to the other end financiers. For the other end financiers, D1 only agreed to forward them the individual/strata title which is an obligation imposed on D1 in all sale and purchase agreements with the Plaintiffs. I do not see how couching their cause of action as one for breach of undertaking as opposed to one in breach of the sale and purchase agreement advances the case of the Plaintiffs. Even in the case of D3, if the purchasers can sue for breach of undertaking, they would not become secured creditors of D1. But I am still of the view that the Undertakings having been given to the end financiers, it is for them to sue, if at all. 42 63. No actual breach of undertaking has happened yet. The undertaking by D1 is to deliver the issue document of title to the property upon issuance of the same. It is not in dispute that the issue document of title to the units purchased by the Plaintiffs has not been issued. D1 sold the master title. However, it can be said that the sale of the units purchased by the Plaintiffs by D1 amounts to a repudiatory breach of undertaking as D1 would have disabled itself from being in a position to ever comply with its undertaking. However, as I have already held, any breach of undertaking is for the end-financier to enforce, not the Plaintiffs. 64. The Plaintiffs also rely on the doctrine of unjust enrichment to found their claim for restitution. The Federal Court in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 had the occasion to decide on whether a defendant who is in breach of a sale and purchase agreement is precluded from being awarded restitution pursuant to the doctrine of unjust enrichment. The Federal Court held that the defendant is not precluded from being awarded restitution pursuant to the doctrine of unjust enrichment; see para 52, para 159. 43 65. The Federal Court at para 117 at page 496, held that a cause of action in unjust enrichment can give rise to a right to restitution where it can be established that: i) the Plaintiff must have been enriched; (ii) the enrichment must be gained at the defendant’s expense; (iii) that the retention of the benefit by the plaintiff was unjust; and (iv) there must be no defence available by legislation or contract to extinguish or reduce the plaintiff’s liability to make restitution. 66. I find that D1 has acted in breach of its sale and purchase agreements with the Plaintiffs and that the sale and purchase agreements have become void when they have become impossible of performance upon the winding up of D1 or within a reasonable time after the winding up, when the Plaintiffs are deemed to have accepted the breach as terminating the agreements. Since the Plaintiffs have their remedies for breach of contract, I am of the view that the principle of unjust enrichment is not applicable. If the parties to a contract have made express or implied provision for the return of payments where the 44 basis for those payments has failed, the contractual remedy excludes a remedy in unjust enrichment. In Pan Ocean Shipping Co Ltd v Creditcorp Ltd (The Trident Beauty) [1994] 1 WLR 161 the time charterer of a vessel had paid an instalment of hire in advance (as required by the charterparty) to the defendants, to whom the right to receive the hire had been assigned by the disponent owners, as part of a financing agreement. The vessel was off-hire for the entire period, and the claimants sought to recover their payment from the defendants. The charter provided for the disponent owners to repay any overpaid hire immediately, and Lord Goff ( with whom Lord Lowry agreed) commented that, since there was a contractual regime which legislated for the overpaid hire: “The law of restitution has no part to play in the matter; the existence of the agreed regime renders the imposition by the law of a remedy in restitution both unnecessary and inappropriate.” 67. As against D2, the case against it is that the rights and benefits under some of the sale and purchase agreements have been assigned to D2. As such, it is necessary for D2 to carry out the duties as an assignee to protect the rights of the 1st, 2nd, 7th, 8th and 25th Plaintiffs’ as 45 assignors and to enforce the terms under the Deeds of Undertaking by seeking the refund of the loan sum disbursed by the said Plaintiffs to D1. 68. However, there is no authority which the Plaintiffs have cited which states that D2 as an assignee has an obligation to enforce the terms of the Undertaking given by D1 to it. I am not aware of any such duty owed by D2 to the assignors. Accordingly, I am of the view that the claim against D2 on this basis must fail. 69. The Plaintiffs also claim against D2 on the basis of unjust enrichment, as D2 has received the proceeds of sale of the master title in its capacity as bridging financier. However, it cannot be disputed that D2 did not sell or transfer the master title. It was the liquidators of D1 who sold the master title. D2 was paid because it was the secured creditor of D1 and I do not find that the elements of unjust enrichment are present as against D2 on this basis. 70. However, it transpired that D2 had given 2 letters of disclaimer to D4 as end financier of 2 plots (Plot T 234 and Plot 164) that D2 has no rights, title or interest in the plots in question. Nevertheless, in receiving payment of the redemption sum of RM20 million, D2 has received the sale proceeds of those 2 lots. The issue is whether there has been 46 unjust enrichment on the part of D2, in receiving the sale proceeds of lots which they had expressly stated they have no rights or interests in, thus giving rise to a cause of action against it. 71. Although it would appear on face value that D2 has been unjustly enriched, since the relevant Plaintiffs have no beneficial interest in the lots concerned and the said Plaintiffs had absolutely transferred and assigned their rights and interests under the sale and purchase agreements to D4, I am of the view that the said Plaintiffs have no cause of action in unjust enrichment or otherwise against D2. D2 was paid because it had a charge over the master title which is indefeasible. The payment to it was not at the benefit of the purchasers of the 2 plots because the said purchasers have no beneficial interest to any “property”, merely choses in action against D1. It is therefore not unjust for D2 to receive payment of the RM20,000,000.00 sale proceeds of the master title. 72. As for those Plaintiffs who choose to assert their remedy against D1 by lodging a proof of debt against the Liquidators of D1, I note that the Liquidators had submitted that the claims are already time barred by limitation. 47 73. Pursuant to the sale and purchase agreements, D1 was to have delivered vacant possession of the units to the Plaintiffs within 36 months of the date of the agreements. The sale and purchase agreements all have different dates and they were entered into between 1.2.1996 to 21.7.1997. Accordingly, the Plaintiffs submit that the causes of action for breach of contract or refund of the purchase price against D1 would have commenced between 1.2.1999 to 21.7.2000 and would have expired between 1.2.2005 to 21.7.2007. D1 was wound up in 2002. 74. The issue of limitation period is to be determined when the Plaintiffs choose to lodge a proof of debt with the Liquidators of D1 and I do not have to deal with the issue here. But in any event, I do not agree with D1 that the claims of the Plaintiffs are necessarily time barred. Even if D1 is correct in the dates of accrual of the causes of action, they are not time barred at the date of winding up of D1 and it is settled law that after the company has been wound up, limitation stops running so as long as the claim is not time barred at the date of winding up of the company, the proof of debt cannot be rejected as being time barred. 48 75. In all the circumstances of the case, I dismissed the OS by consent, costs of RM1000.00 to be paid to D2, D3 and D6 subject to allocator. There will be no order for costs as against the other Defendants. I wish to state that I am not even able to grant an order in terms of the first prayer in the Originating Summons because the sale and purchase agreements have been terminated and it cannot be said that the Plaintiffs are lawful purchasers of the plots they had contracted to purchase. 76. I can do no better but to adopt the statements by the Federal Court in Sidek Hj Muhamad & Ors v The Government of the State of Perak & Ors [1982] 2 CLJ (Rep) 321 as follows: “So the Courts must, for the sake of law and order, take a firm stand. We can sympathise with the plight in which the appellants find themselves. But we can go no further.” Wong Chee Lin Judicial Commissioner Kuala Lumpur High Court Dated: 31st October, 2018 49 Solicitors for the Plaintiffs Datuk Wong Rhen Yen & Emily Goh Siok Fun Messrs Faizul Nasir & Associates Advocates & Solicitors 48-1, Jalan Telawi, Bangsar Baru 59100 Kuala Lumpur Tel : 03-2288 1911 Fax: 03-2288 1977 Solicitors for the 1st Defendant Messrs Arifin & Partners Advocates & Solicitors E-11-6, Menara Suezcap 2 KL Gateway, No. 2 Jalan Kerinchi Gerbang Kerinchi Lestari 59200 Kuala Lumpur Tel : 03-7932 3202 Fax: 03-7931 9202 50 Solicitors for the 2nd Defendant Messrs Shaikh David Raj Advocates & Solicitors M-2-19, Plaza Damas 60, Jalan Sri Hartamas 1 Sri Hartamas 50480 Kuala Lumpur Tel : 03-6201 5677 Fax: 03-6201 9677 Solicitors for the 3rd Defendant Messrs Seow & Megat Advocates & Solicitors Suite 17.03, Level 17 Wisma MCA, 163 Jalan Ampang 50450 Kuala Lumpur Tel : 03-2166 3384 Fax: 03-2166 3385 51 Solicitors for the 4th Defendant Messrs K.Y Sim & Co Advocates & Solicitors 45, Jalan SS 21/23 Damansara Utama 47400 Petaling Jaya Tel : 03-7725 6230 / 7725 6231 Fax: 03-7725 6237 Solicitors for the 5th Defendant Messrs Shook Lin & Bok Advocates & Solicitors 20th Floor, Ambank Group Building 55, Jalan Raja Chulan 50200 Kuala Lumpur Tel : 03-2031 1788 Fax: 03-2031 1775/8/9 52 Solicitors for the 6th Defendant Messrs Zulpadli & Edham Advocates & Solicitors No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur Tel : 03-2694 6979 / 2694 6997 Fax: 03-2691 1107