Linggiu Valley Orang Asli (Jakuns) Trust v Virgin Properties Sdn Bhd (23NCVC-106-07/2012)

AND VIRGIN PROPERTIES SDN. BHD. (In Liquidation) [(Company No:2007010110450 (768453-X)]

KU AZHAR BIN KU ABDUL RAZAK (NRIC No:700305-02-5493)

DINESH KANAVAJI A/L KANAWAGI (NRIC No:781121-07-5119)

KANAWAGI A/L SEPERUMANIAM (NRIC No:450112-07-5241)

TETUAN KHANA &CO. (Being sued as a firm)

RIZA MAKHZAN ARIFIN (NRIC No. 730201-03-5221) (Practicing as an Advocate and Solicitor under the name and style of Messrs Sharifah &Associates)

PUTERI INTAN NURUL ARZIAN BT ABDUL AZIZ (NRIC No. 711029-10-6054) (Practicing as an Advocate and Solicitor under the name and style of Messrs Sharifah & Associates)

MAMPU JAYA SDN. BHD. (In Liquidation) ((Company No:198401016000(128556-D)) ... DEFENDANTS  GROUNDS OF JUDGMENT  12/02/2025 22:17:28 23NCVC-106-07/2012 Kand. 249 Introduction [1] The Plaintiff has via Notice of Application (Enclosure 193) applied to amend the Order and Judgment of Johor Bahru High Court Civil No. 23NCvC-106-07/2012 dated 22.12.2016 (the “ JBHC Order and Judgment”). [2] The Defendants that have participated in Enclosure 193 by filing their respective affidavit in reply are as follows:

the Second Defendant (“D2”) and Third Defendant (“D3”); and

the Sixth Defendant (“D6”) and Seventh Defendant (“D7”). [3] The First Defendant (“D1”) and the Eighth Defendant (“D8”) are the wound-up companies whereas the Fourth Defendant (“D4”) is a bankrupt. [4] After hearing the submission by the parties and upon considering the affidavits filed by the parties, I have allowed Enclosure 193 with costs of RM2,000.00 to be paid by the Defendants to the Plaintiff. [5] Below are my grounds for the decision. The grounds are prepared for the two (2) appeals filed by D2 and D3, D6 and D7 respectively. Background [6] The background facts in this application are gathered from the cause papers and submissions filed by the parties and stated in chronological order. [7] The Plaintiff commenced legal proceedings in the Johor Bahru High Court (“JBHC”) against the Defendants for various wrongdoings/misdeeds as the Defendants had unlawfully conspired with each other to injure the Plaintiff and caused Plaintiff to suffer losses in the following manner:

the Defendants used the Plaintiffs monies to purchase the 27 condominium units (the “27 Units”) under the name of the D4 where the D4 alleged he purchased it for or on behalf of the Plaintiff but the documents showed ownership was not given to the Plaintiff;

the Defendants had unlawfully and fraudulently entered into a Management Agreement with unfair terms that benefited the Defendants;

the Defendants had unlawfully used the Plaintiffs assets i.e. the 27 Units to generate secret profits and failed to provide any accounts or information including all expenses and income generated from the same;

the Defendants had unlawfully used the Plaintiffs monies to increase the paid-up share capital of the D1, issued shares of the D1 to the D2 and D3, and advancing monies from the same to the D2 and D3; and

the Defendants purchased 30 additional condominium units with the Plaintiff's monies and/or its assets. [8]

D1 to D7 are liable to pay to the Plaintiff damages amounting to RM9,922,028.00;

D1 to D7 to pay the Plaintiff the sum of RM1,010,306.00 being outstanding rent for the 27 Units from May 2013 to June 2016 and continuing at a rate of RM26,587.00 a month from July 2016 until the date of vacant possession;

D1 to D7 to pay the Plaintiff the sum of RM628,080.00;

D1 and D7 to pay the Plaintiff the sum of RM619,200.00;

D1 and D7 to pay the Plaintiff the sum of RM27,000.00;

D1 and D7 to pay the Plaintiff the sum of RM34,650.00;

D1 and D7 to pay the Plaintiff the sum of RM572,473.00; and

D1 and D7 to pay the Plaintiff the costs of RM500,000.00. [9] The Defendants then filed their respective appeals to the Court of Appeal against the JBHC Order and Judgment, all of which were dismissed on 22.01.2019 as the Court of Appeal upheld JBHC Order and Judgment. [10] Subsequent thereto, the Defendants had filed their respective motions to appeal to the Federal Court, all of which were dismissed on 21.08.2020 and the Court of Appeal's decision is affirmed by the Federal Court. [11] Pursuant to the JBHC Order and Judgment, the Plaintiff proceeded to execute the judgment by way of bankruptcy proceedings against D6 and D7. The Bankruptcy Notices were issued against D6 and D7 but was later set aside on the ground that the Plaintiff was not entitled to claim from D6 and D7 the entire judgment sum owing by D1 to D7 to the Plaintiff. This was because the JBHC Order and Judgment did not expressly state that D6 and D7 are jointly and severally liable for the judgment sum. [12] The Plaintiff then appealed against the said decision to the Shah Alam High Court (“SAHC”) and the appeal was allowed on 24.01.2020 (“SAHC Order”). In deciding the appeal, the SAHC has referred to the Court of Appeal’s decision and hold that D6 and D7 are the tortfeasors. [13] D6 and D7 then appealed against the SAHC Order and the Court of Appeal on 02.03.2021 reversed the SAHC’s decision on the ground that the word “jointly and severally” were not stated in the JBHC Order and Judgment and that the Court cannot go behind the wordings of the judgment. Issues To Be Determined [14] The Parties have raised a few issues to be decided by this Court as follows:

whether D6 and D7 are joint tortfeasors and are jointly and severally liable;

whether this Court has jurisdiction to amend the JBHC Order and Judgment which has been drawn up and perfected;

whether the Plaintiff’s application is time barred; and

whether the amendment is bone fide; and

whether the principle of res judicata apply.

whether D6 and D7 are joint tortfeasors and are jointly and severally liable [15] The Plaintiff contended that the D1 to D7 are joint tortfeasors and consequently are jointly and severally liable to fulfil their obligations in the JBHC Order and Judgment. In support their contentions, the Plaintiff has referred to the grounds of the judgment of Justice Samsudin bin Hassan and the Court of Appeal’s grounds of judgment. [16] This is evident from Justice Samsudin bin Hassan's Grounds of Judgment dated 17.11.2017 in JBHC whereby His Lordship referred to the Defendants' liability collectively, inter alia, as follows:

the Plaintiff was successful in proving that the Defendants were responsible for conspiring to injure and breached their fiduciary, contractual, trustee and statutory obligations and were negligent;

the 27 Units belongs to the Trust as they were purchased with the Trust's monies;

the Defendants had mala fide intentions to allow the 27 Units to remain on the name of the D4 and to benefit as well as to unjustly enrich themselves;

the Management Agreement was tainted with fraud and is unlawful between the D1 to D3 and D4 as it benefitted and unjustly enriched them as well as it was one-sided for the Defendants;

the Defendants intentionally concealed documents belonging to the Trust from the Court's and Receiver and Manager's knowledge. Additionally, they intentionally lied about the non-existence of any documents other than the documents that they disclosed; and

the Defendants were dishonest in preparing and filing statutory documents. [17] The D3 and D4, D6 and D7 on the other hand, had argued that there is no provision for this Court to invoke its inherent jurisdiction as the Plaintiff is bringing this application under the "slip-rule" provisions. Hence, there is no error in the order as alleged and this application is an afterthought in order to avoid the binding effect. [18] In brief, D3 and D4, D6 and D7 further submit that this application ought to be dismissed for the following reasons:

the Order dated 22.12.2022 is irregular and ought not to be enforced or acted upon as no allocator fees has been paid which is in contrary to the law and this matter has been ruled upon by the High Court and subsequently the Plaintiff's appeal to the Court of Appeal was struck out due to the Plaintiff's withdrawal;

alternatively, there is no error in the Order dated 22.12.2022 for the slip rule provisions to be used as the High Court, Court of Appeal and the Federal Court had affirmed the said order so the principle of res judicata and stare decisis is therefore applicable and the Court of Appeal's decision is therefore binding on this Court;

the issue of “joint and several liability” was addressed in detail in the Court of Appeal via Appeal No: No: B- 03(IM)(NCC)-10-02/2020 dated 02.03.2021 where the issue was raised and heard in the bankruptcy court and the Court of Appeal involving D6 and D7. Therefore, this forms a bar to this application and this appears to be a second bite of the cherry;

the Plaintiff have used the JHBC Order extensively and maintained that the JHBC Order was valid and perfect for the last 5 years and is now estopped by law to say otherwise;

the Plaintiffs application is not bona fide as they chose to hide an expressly provided tracing order which would nullify the damages order;

the application is substantially delayed and the application is an afterthought to defeat the Court of Appeal's orders given on 02.03.2021 between the parties;

all the paragraphs in the Statement of Claim (“SOC”) did not carry any pleadings of "joint and several" prayer except the tracing order at paragraph 17 of the SOC which was disallowed by the Court;

the parties could not agree with the draft order prepared by the Plaintiff's solicitors and subsequent thereto, the parties sought clarification from the learned Judge on 02.06.2017. Thereafter, the new draft order was sent to JBHC. The draft order was perused and noted (telah dibaca and dimaklum) by the learned Judge and hence there is no error as to the JBHC Order and Judgment;

as of August 2017, the Plaintiff and their solicitors went on to use the said order and commenced multiple execution actions on the basis of the said order, amongst others, filed bankruptcy notice against D3 in Kuala Lumpur High Court, and against D6 and D7 in SAHC and wound up the D1 based on the full amount of the damages as stated in JBHC Order;

since the Court of Appeal on the 17.01.2019 affirmed the learned Judge’s decision without amendment and no appeal has been filed by the Plaintiff to the Federal Court, thus JBHC Order and Judgment is correct and no error; and

the Plaintiff also did not appeal against the Court of Appeal’s decision on 02.03.2021 which had allowed the setting aside of the bankruptcy notices. The issue becomes res judicata and therefore the Plaintiff is not allowed to argue it again via Enclosure 193. [19] In this regard, I refer to the Court of Appeal's decision in dismissing the Defendants' appeal from the JBHC Order and Judgment has laid down the followings (see pages 409 to 413 of exhibit “RHB-5” in Enclosure 194): “[167] ... In law, where injury has been done to or loss has been suffered by the plaintiff and such injury or loss as the case maybe, was cause by any defendants being joint tortfeasors, as the case herein, all the defendants, whose acts have been a proximate cause of the injury or loss, must compensate for the whole of it. Even if the defendants are not joint tortfeasors but are acting severally and not in concert, when injury has been done to or loss has been suffered by the plaintiff. the injury or loss, as the case may be, is the same or indivisible, and the defendants, whose acts have been the proximate cause of the injury or loss, are liable for the same damage and must also compensate for the whole of it. When there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. … [169] We consider that the above decisions deal with the issue of negligence involving independent as well as joint tortfeasors and we are of the view that the principle laid down in both cases premised on the common law is applicable to the instant case which is also founded, inter alia, on negligence, breach of duty of care, fraud, conspiracy to injure as well as breach of fiduciary duty. Based on the material facts garnered from the evidence, the injury or loss suffered by the plaintiff is clearly the same and indivisible, accordingly whether all the defendants are joint tortfeasors or otherwise, each of them is liable for the same damage. ‘’. [Emphasis added] [20] I also referred to the Federal Court case of Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan @ Marie [2021] 5 MLJ 234 which overruled the previous precedent in the Court of Appeal case of Sumathy a/p Subramaniam v Subramaniam a/I Gunasegaran and another appeal [2017] 6 MLJ 753 and laid down the concept of joint and several liability as follows: “[16] Joint liability arises when two or more persons jointly promise to do the same thing. There is only one obligation or promise, and consequently. performance by one person discharges the others. In the case of a joint promise, the obligation is single and entire. It is extinguished by a judgment and decree in a suit against any one of the joint promisors: In Re Vallibhai Adamji (1933) 35 BOMLR 881; 1933 Indlaw MUM 179. [17] Several liability, on the other hand, arises when two or more persons make separate promises to another, whether by the same instrument or by different instruments. There is more than one obligation or promise, as compared to joint liability where there is one obligation or promise. … [29] This brings us to the underlying rationale for joint liability as opposed to joint and several liability. Each of these doctrines relates to the number of promises made, and not the number of promisors who made a particular promise. In the case of joint liability, there is one promise and two or more promisors. Each is liable to the extent of the promised amount. In the case of a joint and several liability. there is more than one promise. The promisors make two or more promises and thus several liability arises. … [35] KBK then appealed to the Court of Appeal. The Court of Appeal, speaking through Justice Darryl Goon, in a meticulous and comprehensive judgment examining a long line of cases, concluded that it differed in reasoning with Sumathy. However, the Court of Appeal was constrained to dismiss the appeal as it regarded itself bound by the decision in Sumathy based on the rule of stare decisis as enunciated in Young v Bristol Aeroplane Co, Limited [1944] KB 718. We would, with respect concur with the reasoning in Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234.”. [Emphasis added] [21] In the case of Kejuruteraan Bintai Kindenko Sdn. Bhd. v Fong Soon Leong [2021] 2 MLJ 234, the Court of Appeal was bound by the doctrine of stare decisis and followed the case of Sumathy although the Court arrived at a different reasoning. Justice Darryl Goon JCA stated as follows: “[45] From the cases referred to, the preponderance of judicial view for over a century has been quite the opposite. Judgment debtors are regarded as jointly and severally liable under a judgment or order, unless stated otherwise. … [49] Where an order is made or judgment recovered against two or more parties for payment of a sum of money. without more, it simply means that all the judgment debtors and each of them are liable for the amount adjudged to be due. There is no need to read into such a judgment or order the idea of joint and several liability because in the manner of its pronouncement that is already its effect, unless stated otherwise. [50] Indeed, what should also not be done is to read into and to qualify such a judgment as only creating a Joint liability' for the sum adjudged or ordered, with the additional consequence that each defendant is only liable for an equal portion of the judgment debt. [51] If a borrower of a fixed sum of money is adjudged liable to repay that sum, he remains liable for that sum. It cannot be that if there exists a guarantor found to be jointly liable, the principal debtor's debt and liability therefor becomes half the amount if judgment is entered against both the principal debtor and his guarantor. Without having to be expressed, the liability of the principal for the whole amount borrowed remains. The guarantor's liability is also necessarily for the same amount guaranteed. They are both thus jointly liable for the same amount adjudged or ordered. They are also each individually liable for that amount. They are both jointly and severally liable.”. [Emphasis added] [22] I took note the Court of Appeal’s decision on 02.03.2021 which had allowed the setting aside of the bankruptcy notices based on the reasons that the JHBC Order and Judgement did not state the words “joint and several”. However, based on the Federal Court’s decision in Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan@ Marie (supra) and Court of Appeal decision in Kejuruteraan Bintai Kindenko Sdn. Bhd. v Fong Soon Leong (supra) and also the decision of the Court of Appeal on 17.01.2019, I rule that the injuries and losses suffered by the Plaintiff which were caused by the Defendants are indivisible. Therefore, regardless of whether the Defendants were joint tortfeasors and/or acting in concert or not, each of the Defendants are jointly and severally liable to the same indivisible injuries and losses suffered by the Plaintiff. Further, even without the term “jointly and severally liable” in the JBHC Order, it does not change the fact that D1 to D7 are liable to the Plaintiff as per the JHBC Order and Judgement. [23] As such, it is vital for the proposed amendments to be incorporated into the JBHC Order and Judgment to reflect the nature and intention of the JBHC when JBHC delivered its order.

whether this Court has jurisdiction to amend the JBHC Order and Judgment when it has been drawn up and perfected [24] The Plaintiff submits that this Court has the jurisdiction to amend the JBHC Order and Judgment under Order 20 rule 11 of the Rules of Court 2012 (“ROC 2012”) which is known as the slip rule. The general rule is that once an order is perfected, it may not be amended unless in exceptional circumstances where justice is required. The Plaintiff argued that the proposed amendments in Enclosure 193 fall within the ambit of exceptional circumstances where justice is required. The amendments sought are necessary in the interest of justice for the Plaintiff to execute the JBHC Order and Judgment. [25] In any event, the Plaintiff submits that this Court may invoke its inherent jurisdiction to grant the proposed amendments to prevent injustice on the part of the Plaintiff. [26] The Plaintiff submits that if the amendments sought are not granted, the Plaintiff can never execute a judgment which had expressly set out that D1 to D7 are liable for damages payable to the Plaintiff. If the Enclosure 193 is not allowed, the Plaintiff is left with an order which is akin to a toothless tiger. / [27] D2 and D3, D6 and D7 contended that the Court has no power to allow the propose amendment made by the Plaintiff after it was drawn up and perfected because the Court is functus officio. There is no error to correct on the express intention of the Court. [28] D2 and D3, D6 and D7 further argued that the JBHC Order has clearly manifested the intention of the Court based on the open court pronouncement made by the learned Judge on 22.12.2016. To support their contentions, they have cited the Federal Court case of Hock Hua Bank v Sahari bin Murid [1980] 1 MLRA 687 where Chang Min Tat FJ of the held as follows: "Clearly the Court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in 0.28 r.11 Rules of the Supreme Court 1957 (0.20 r.11 Rules of the High Court 1980) so far as is necessary to correct error in expressing the intention of the Court. Re St. Nazaire Co.12 Ch D 99, Kelsey v Doune [1912] 2 KB 482; Hession v Jones [1914] 2 KB 421, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Foong Hong v Neotia & Co. [1918] AC 888 and Jonesco v Beard [1930] AC 298. The hearing of the action will in a proper case be expedited: Smith v Peizer 65 SJ 607.“. [Emphasis added] [29] In this regard, reference is made to Order 20 rule 11 ROC 2012 regarding the amendment of judgment and orders: “Clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal.”. [Emphasis added] [30] Based on the Order 20 rule 11 ROC 2012 and above authority, the Court can only allow the application to amend the JBHC Order under slip rule. [31] D6 and D7 argued that the JBHC Order was used to wind up D1 for the total judgment sum and the same JHBC Order also used in the bankruptcy proceedings against D6 and D7 for the total judgement sum. Therefore, the Plaintiff are barred to proceed with the bankruptcy proceedings against D6 and D7. [32] D6 and D7 also argued that since the Plaintiff had taken all steps in multiple actions and proceedings against the Defendants based on the JBHC Order and therefore is estopped from coming to this Court now to say there are errors in JBHC Order that needed to be corrected. [33] In this regard, I take guidance from the case of Malaysian National Insurance Sdn. Bhd. v Lim Tiok [1997] 2 MLJ 165, the Supreme Court held as follows: “In a situation where there are independent tortfeasors with an apportionment of responsibility under an order of the court, the common law rule applies. Hence, if several persons, not acting in concert, commit a tort against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the same damage. Hence, as YMC and CTW, and vicariously the appellant, were undoubtedly independent tortfeasors and each was liable for the same damage caused, each was liable to pay the total sum of the damages, costs and interest payable under the consent judgment. It followed that as the third party could recover this entire sum from the insured, this was also the sum which the third party was entitled to recover from the appellant insurer … The next question to be logically considered is: what is the sum which the third party could have recovered against the insured in the present case where you have a situation involving independent tortfeasors with an apportionment of responsibility between them under an order of court? To recapitulate, at common law, if each of several persons, not acting in concert, commits a tort against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the same damage (see Oli Mohamed v Keith Murphy& Anor [1969] 2 MLJ 244 at pp 245 col 2E to 246 col 1A, per Choor Singh J applying Dingle v Associated Newspapers Ltd & Ors [1961] 2 QB 162 and Drinkwater v Kimber [1952] 2 QB 281.” [Emphasis added] [34] In Arab-Malaysian Finance Bhd. v Stephen Phoa Cheng Loon & Ors. and other appeals [2003] 1 MLJ 567, the Court of Appeal held as follows: “Learned counsel for the fifth defendant also argued that even if his client was partly liable, it was not a joint tortfeasor and was therefore not liable to foot the whole bill before seeking contribution from the co-defendants. The answer to this argument is to be found in the following passage in the judgment of Choor Singh J in Oli Mohamed v Keith Murphy & Anor [1969] 2 MLJ 244 at p 245, : Counsel for the second defendant submitted that if the court holds that both defendants were equally negligent, then the judgment against the second defendant should be only for 50 per cent of the total sum assessed as damages in this case. In my opinion this submission also fails. It is clear law that if each of several persons, not acting in concert, commits a tort against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the whole damage… … So too here. The plaintiffs are entitled as a matter of law to enforce the whole judgment against any of the defendants before us, including the fifth defendant. The argument of the fifth defendant cannot therefore be accepted.”. [Emphasis added] [35] Further, the Federal Court in the case of Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan @ Marie (supra), has clarified the interpretation of joint and several liability that in the same instrument, two or more persons jointly promise to do the same thing and severally make separate promises to do the same thing. The Federal Court referred to and held that section 44 of the Contracts Act 1950 [Act 136] provides for joint liability, which read as follows: “Where two or more persons make a joint promise, the promise may, in the absence of express agreement to the contrary, compel any one or more of the joint promisors to perform the whole of the promise.” [36] As such, if there are two or more debtors jointly liable to pay a judgment debt, each of them is liable. [37] Therefore, based the above authorities, it does not prevent the Plaintiff to initiate the enforcement proceedings to recover the total judgment sum against all the Defendants. In the present case, although the Plaintiff has taken action to wind up D1, the Plaintiff can still proceed to recover the balance of the judgment sum (if any) from the other Defendants as long the total sum recovered do not exceed the total judgment sum under the JBHC Order. [38] I find that there is no clerical mistake or error in the JHBC Order after it has been perfected. Nonetheless, based on the Court of the Appeal decision made on 17.01.2019 and the case of Kejuruteraan Bintai Kindenko Sdn. Bhd. v Fong Soon Leong (supra), I am of the considered view that the liability of the Defendants is not split and divided equally but each of them is liable for the entire judgment debt. [39] Further, according to the Federal Court decision in the case of Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan @ Marie(supra), a creditor’s right will not be circumscribed by not having the nature of the debtors' liability explicitly spelt out in the judgment. Unless it is stated otherwise where the liability of the debtors is to be borne in equal proportions, the judgment creditor is entitled to go against one or any number of the debtors for the entire judgment sum so long as the judgment debt remains unrealized. [40] Thus, in the present case, there is no need to read into a judgment the words of “joint and several liability”. Despite the terms of “jointly and severally” not stated in the JHBC Order and Judgement, the D1 to D7 are still liable for the sum awarded by the JBHC Order. [41] In order to avoid any dispute in enforcing the JBHC Order and Judgement and to prevent injustice on the part of the Plaintiff, I am invoking the inherent powers under Order 92 rule 4 ROC 2012 to grant the proposed amendments to reflect the intention of the Court via the JBHC Order and Judgement. If the JBHC Order and Judgment is left unamended and unrectified, it would cause injustice to the Plaintiff to successfully obtain fruits of justice by way of the JBHC Order and Judgment and it would also enable the D1 to D7 escape their liabilities and render the JBHC Order and Judgement a paper judgment. [42] Further, the proposed amendments do not make any substantial changes in the nature of the JBHC Order and Judgment and no prejudice arises out of the amendments sought as it does not change the fact that D1 to D7 are liable for damages payable to the Plaintiff.

whether the Plaintiff’s application is time barred [43] The Plaintiff submits that Enclosure 193 is not time barred by any limitation period as Order 20 rule 11 of the ROC 2012 expressly stipulates that the Court may amend mistakes in judgments or orders at any time. In any event, the Plaintiff submits that there is no delay on the Plaintiffs part in filing Enclosure 193. [44] D6 and D7 contended that the Enclosure 193 filed by the Plaintiff is overly delayed and were made after multiple applications/proceedings, it is not bona-fide, without merit and militates against the established principles in a bona-fide amendment application. [45] I agree with the contentions of the Plaintiff that Enclosure 193 was filed on 02.12.2021 after the decision of Court of Appeal Civil Appeal No. No. B-03(IM)(NCC)-10-02/2020 which was heard together with Civil Appeal No. B-03(IM)(NCC)-11-02/2020 in allowing D6 and D7’s appeal to set aside the Bankruptcy Notice which was delivered on 02.03.2021. As such, there is no limitation of time for Plaintiff to file Enclosure 193 and no delay had occurred in filing of the same.

whether the amendment is bone fide [46] The Plaintiff submits that the proposed amendments are bona fide amendments and merely to reflect the intention of the JBHC in delivering the JBHC Order and Judgment. [47] D2 and D3 has raised the issues that the Plaintiff’s application was done in bad faith as the Plaintiff was attempting to amend and insert a new cause of action of the terms of “joint and several”. Upon perusal the ground of the judgement of the learned Judge, D2 and D3 found the special damages given by the learned Judge as per pleaded by the Plaintiff and the tracing orders (see pages 283-286 in exhibit “RHB-4” of Enclosure 194) also be given by the learned Judge. Therefore, D2 and D3 argued that the Plaintiff has kept quiet about this express provision which is contradict the special damages claim as the learned Judge expressly stated that the tracing order is required to ascertain the amount rendering all the special damages order a nullity and in contradiction, and therefore it must be set aside. [48] Upon perusing the grounds of judgment of the learned Judge in pages 283 to 288 in exhibit “RHB-5” of Enclosure 194, I am of the considered view that the tracing order was made for the Plaintiff to recover the trust moneys in various accounts belonging to the Defendants. This tracing order was not relevant to the damages awarded by the learned Judge in pages 299 to 300 in exhibit “RHB- 5” of Enclosure 194. It is clear from the beginning that the Plaintiff is taking enforcement proceedings to recover the damages awarded in pages 299 to 300 as stated in exhibit “RHB-5” of Enclosure 194. [49] Further, I am of the considered view that this issue, if at all is true, should have been brought up during the appellate stage and not brought up during the hearing of Enclosure 193 and claimed that there is miscarriage of justice. This is because the decision of the learned Judge has been affirmed by the Court of Appeal and Federal Court. Therefore, I rule the issues raised by D2 and D3 devoid of merits. [50] D6 and D7 had referred to the case of Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors. [1982] 1 MLRA 417 and Hong Leong Finance Bhd. v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81, argued that there is delay in filing Enclosure 193 by the Plaintiff and the Plaintiff has failed to provide explanation as to the delay. Hence, the Enclosure 193 is not a bona fide application and is a tactical maneuver which should be dismissed by this Court. [51] I find that the arguments of the D6 and D7 are devoid of merits. Although the principles enunciated in both the cases above are applicable for the application for amendment, however, the facts of those cases differ greatly from the present case. Those cases involved the amendment to the pleadings prior to the trial or decision, whereas the present case involve the amendment of the JHBC Order and Judgment after the trial has been concluded. Therefore, the pre-conditions as stated in the Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors. (supra) are not applicable. [52] Further, allowing the Enclosure 193 will not cause any prejudice to D3, D4, D6 and D7 as they have participated in the trial before the learned Judge until the judgment was pronounced on 22.12.2016 and they have also participated in the appellate stage. The Defendants knew and understood what the case against the Defendants by the Plaintiff in the JBHC and knew what was damages awarded against them. I find that the prejudicial effect upon the Plaintiff is greater than D3, D4, D6 and D7, if Enclosure 193 is not allowed.

whether the principle of res judicata apply [53] D6 and D7 contended that all the issues raised by the Plaintiff has been ventilated previously, therefore res judicata principle is applicable against the Plaintiff. D6 and D7 has relied on the Federal Court in Asia Commercial Finance (M) Bhd. v. Kawai Teliti Sdn. Bhd.[1995] 1 MLRA 611 to support their contentions. [54] Therefore, D6 and D7 argued that the Plaintiff in making an application to amend the JBHC Order can be construed as a tactical move to overcome the principle of res judicata and Enclosure 193 should be dismissed. [55] The Plaintiff contended that the Plaintiff is not attempting for the case to be reconsidered nor relitigated. The case is settled and the JBHC Order and Judgment to reflect its intention in in ordering that D1 to D7 are joint tortfeasors hence, jointly and severally liable for damages to be paid to the Plaintiff. [56] I agree with the contentions of the Plaintiff that Enclosure 193 is an application to amend the JHBC Order and Judgement to mirror the intention of the Court and not to relitigate or reopen the issues that have been ventilated in the JBHC and the Court of Appeal. Therefore, I rule that res judicata principle is not applicable. Conclusion [57] In conclusion, I rule that despite the missing words “jointly and severally” in the JBHC Order, it does not change the fact that D1 to D7 are liable to the Plaintiff for causing indivisible injuries and damage to the Plaintiff as per the JHBC Order and Judgement. Each of the Defendants are jointly and severally liable to the same indivisible injuries and losses suffered by the Plaintiff. [58] Therefore, the proposed amendment is necessary to reflect the intention of the JBHC and to prevent injustice to the Plaintiff. [59] I allow Enclosure 193 with the costs of RM2,000.00 to be paid by the Defendants to the Plaintiff. Dated 2 January 2025 Signed by: …………………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim Counsel/Solicitor: For the Plaintiff: Mr. Kenneth Koh Zhong Wey and Mr. Afiq Iskandar Bin Aziz Messrs Nadzarin Kuok Puthucheary & Tan B4-3A-2, Solaris Dutamas Jalan Dutamas 50480 Kuala Lumpur For the Second and Third Defendants: Mr. T. Sivam and Mr. Ravi Messrs Melissa Ram No. 3, Jalan Abdullah Off Jalan Bangsar 59000 Kuala Lumpur For the Sixth and Seventh Defendants: Mr. Haniff Khatri Abdullah Messrs Aznuar Mazwin & Co, No. 104, Jalan Kajang Jaya 3 Taman Kajang Jaya 43000 Kajang Selangor Cases referred to:

Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan@ Marie [2021] 5 MLJ 234 2. Kejuruteraan Bintai Kindenko Sdn. Bhd. v Fong Soon Leong [2021] 2 MLJ 234 3. Hock Hua Bank v Sahari bin Murid [1980] 1 MLRA 687 4. Malaysian National Insurance Sdn. Bhd. v Lim Tiok [1997] 2 MLJ 165 5. Arab-Malaysian Finance Bhd. v Stephen Phoa Cheng Loon & Ors. and other appeals [2003] 1 MLJ 567 6. Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors. [1982] 1 MLRA 417 7. Hong Leong Finance Bhd. v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81 8. Asia Commercial Finance (M) Bhd. v. Kawai Teliti Sdn. Bhd.[1995] 1 MLRA 611 Legislation referred to:

Rules of Court 2012 2.