Malaysia Debt Ventures Berhad v Platinum NanoChem Sdn. Bhd. (WA-22M-643-08/2019)

Platinum Techsolve Sdn. Bhd. (Company No.: 1170427-V)

Graphene Nanochem PLC (Company No.: 05712979)

Jespal Singh Deol A/L Balbir Singh @ Muhammad Imran Bin Abdullah (I/C No.: 650929-10-5093)

Sushil Singh Sidhu A/L Joginder Singh (I/C No.: 651017-08-5485)

Anbananthan A/L Shanmugam (I/C No.: 730114-10-6191) …Defendants (To be heard together) S/N Ncfrnj/v40Cwy/GF5rhUDg IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR (COMMERCIAL DIVISION) CIVIL SUIT NO. WA-22M-643-08/2019 BETWEEN Malaysia Debt Ventures Berhad (Company No.: 578113-A) …Plaintiff

Platinum Nanochem Sdn. Bhd. (In Liquidation) (Company No.: 737056-X)

Platinum Green Chemicals Sdn. Bhd. (In Liquidation) (Company No.: 162740-V)

Antara Commodities (M) Sdn. Bhd. (Company No.: 533800-K)

Asian Food Ingredients Sdn. Bhd. (Company No.: 704406-A)

Anbananthan a/l Shanmugam (NRIC No.: 730114-10-6191)

Jespal Singh Deol a/l Balbir Singh @ Muhammad Imran bin Abdullah (NRIC No.: 650929-10-5093)

Sushil Singh Sidhu a/l Joginder Singh (NRIC No.: 651017-08-5485)

Tan Sri Abi Musa Asa’ari bin Mohamed Nor (NRIC No.: 490910-06-5327) …Defendants GROUNDS OF JUDGMENT [1] These grounds of judgment concern two civil suits filed by the Plaintiff, Malaysia Debt Ventures Berhad (“MDV”), which were heard together as both arise from the same underlying Islamic revolving credit financing facility (“RC Facility”) granted to a borrower within the Platinum Group of companies. [2] The first action, WA-22M-300-07/2018 (“Suit 300”), is a recovery claim by MDV against the novated obligor and its corporate and personal guarantors for the outstanding sum due under a restructured facility. The second action, WA- 22M-643-08/2019 (“Suit 643”), is a tortious claim by MDV against the original borrower, its related entities, approved commodity suppliers, and certain individuals for damages arising from an alleged fraud and conspiracy by unlawful means, whereby monies disbursed under the RC Facility were said to have been misutilised through the systematic cancellation of commodity sales contracts. S/N Ncfrnj/v40Cwy/GF5rhUDg [3] The key issue in Suit 300 is whether the defendants remain liable for the outstanding sum under the restructured and novated facility, or whether a binding compromise had been concluded between the parties through a proposed debt settlement exercise and, if so, whether MDV’s withdrawal from that exercise constituted a breach of the compromise. In Suit 643, the key issue is whether the cancellation of the commodity sales contracts, characterised by MDV as fraudulent “washouts”, amounted to a conspiracy to injure MDV by unlawful means, giving rise to a separate and distinct tortious liability independent of the contractual recovery pursued in Suit 300. [4] Underlying both suits is the overarching question of whether MDV is entitled to pursue concurrent claims arising from the same facility, or whether doing so offends the principles of election, estoppel, and double recovery. BACKGROUND FACTS Suit 300 The Parties [5] The Plaintiff, MDV (Malaysia Debt Ventures Berhad), is a company incorporated in Malaysia and was established by the Government of Malaysia in 2002 to provide financing facilities for the development of designated economic sectors. S/N Ncfrnj/v40Cwy/GF5rhUDg [6] The 1st Defendant, Platinum Techsolve Sdn Bhd (“PTSB”), is a private limited company incorporated in Malaysia. The 2nd Defendant, Graphene Nanochem PLC (“GNC”), is a company incorporated in the United Kingdom, previously listed on the Alternative Investment Market (“AIM”) of the London Stock Exchange. The 3rd Defendant, Jespal Singh Deol A/L Balbir Singh @ Muhammad Imran bin Abdullah (“Jespal”), the 4th Defendant, Sushil Singh Sidhu A/L Joginder Singh (“Sushil”), and the 5th Defendant, Anbananthan A/L Shanmugam (“Anbananthan”), are individuals. Jespal, Sushil, and Anbananthan are collectively referred to herein as the “Personal Guarantors.” When referred to in the context of Suit 300, all the defendants in Suit 300 will be referred to together as “the Suit 300 Defendants.” The Revolving Credit Financing Facility [7] Between 2011 and 2014, MDV granted a MurabahahIslamic revolving credit financing facility, the RC Facility, to Platinum NanoChem Sdn Bhd (“PNC”) (also formerly known as Platinum Energy Sdn Bhd), up to a financing limit of RM110 million. The initial Letter of Offer was dated 9.8.2011, and the Master Facility Agreement between MDV and PNC was executed on 31.10.2011 (“Master Facility Agreement”). The RC Facility was granted for the specific purpose of financing the purchase of primary feedstock and raw materials from suppliers approved by MDV (“Approved Suppliers”) for the production and sale of Palm Methyl S/N Ncfrnj/v40Cwy/GF5rhUDg Ester (“PME”), Used Cooking Oil Methyl Ester, and drilling fluid (“Finished Goods”) by PNC to approved project sponsors. Proceeds from the sale of Finished Goods were to be deposited into a designated Shariah-compliant project account with CIMB Bank Berhad (“Project Account”) and applied towards repayment of the RC Facility. Discovery of Breaches and Restructuring [8] In or around February 2015, MDV identified discrepancies between monies disbursed under the RC Facility to the Approved Suppliers and the corresponding balances in the Project Account. Whether those discrepancies amounted to breaches on the part of PNC, and whether they involved the misutilisation of disbursements, were matters that remained in dispute at trial and are addressed in the substantive findings below in respect of Suit 643. Prior to the issuance of any formal notice, communications took place between the parties concerning the Platinum Group’s request for a restructuring of the RC Facility. By a Notice of Breach dated 14.7.2015, MDV placed on record its position regarding PNC’s alleged breaches of the terms of the RC Facility, together with admissions said to have been made by certain directors of PNC and its related company, Platinum Green Chemicals Sdn Bhd (“PGC”), at meetings held on 23.6.2015 and 8.7.2015. The specific facts concerning those alleged breaches and admissions are addressed further below in the proceedings in Suit 643. S/N Ncfrnj/v40Cwy/GF5rhUDg [9] Notwithstanding those alleged breaches, and at the request of PNC, MDV agreed to restructure the RC Facility. By Supplemental Letter of Offer 13 dated 16.3.2016 (“SLO 13”), the RC Facility was restructured into a Non-Revolving Project Financing Facility (“Restructured Facility”) with an outstanding principal sum of RM91,165,894.67. The tenure of the Restructured Facility ran from 1.11.2015 to 31.12.2021, with no further disbursements to be made. PNC was required to repay the Restructured Facility by way of specified quarterly instalments commencing 30.4.2016. Novation to PTSB [10] On 26.4.2016, PNC wrote to MDV requesting consent to novate its outstanding obligations under the Restructured Facility to PTSB. PNC stated that PTSB was to be established as the new local holding company for the Platinum Group under GNC, and that the novation was necessitated by PNC’s inability to resolve claims by its unsecured creditors arising from its legacy biofuel business. PNC was wound up by the High Court of Malaya at Kuala Lumpur on 15.7.2016. [11] By letter dated 29.6.2016, MDV informed PNC and PTSB that it was agreeable in principle to the novation, subject to specified terms and conditions. The formal novation was completed by way of three instruments: an Agreement to Novate dated 26.8.2016 executed between MDV and PTSB; a Supplemental Agreement to Novate dated

28.8.2017 also executed between MDV and PTSB; and a Novation Agreement dated 30.8.2017 executed between GNC (on behalf of PNC), PTSB, and MDV. By virtue of the Novation, PTSB assumed all of PNC’s obligations and liabilities under the Restructured Facility from 30.8.2017, whilst PNC remained liable for any breaches committed prior to that date. [12] In connection with the Novation, additional securities were created in favour of MDV. These comprised a Debenture dated 2.8.2017 executed by PTSB, a Corporate Guarantee dated 2.8.2017 executed by GNC (“Corporate Guarantee”), and a Joint and Several Guarantee dated 2.8.2017 executed by Jespal, Sushil, and Anbananthan (“Personal Guarantee”). GNC also executed a Letter of Undertaking dated 30.8.2017, unconditionally undertaking to deposit the sum of RM2,000,000.00 directly to MDV, being the quarterly payment that had fallen due on 30.4.2017 under SLO 13. Default and Proposed Debt Conversion [13] Following the completion of the Novation, PTSB failed to meet its repayment obligations under the Restructured Facility. On 20.10.2017, MDV issued a formal demand to PTSB for the sum of RM2,000,000.00 in arrears. A corresponding letter of demand was also issued to GNC pursuant to the Letter of Undertaking. S/N Ncfrnj/v40Cwy/GF5rhUDg [14] No payment was made in response. Discussions regarding a possible debt settlement took place between the parties from as early as August to October 2017, with involvement at the level of MDV’s then Chief Executive Officer. By November 2017, PTSB and GNC had put forward a formal proposal to settle the outstanding sum under the Restructured Facility by converting the debt into new shares in GNC, which were to be listed and freely tradeable on AIM (“the Proposal”). On 29.11.2017, a meeting took place between MDV and representatives of PTSB and GNC. The identity of those who attended on behalf of PTSB and GNC at that meeting was disputed at trial. MDV’s witnesses identified Dato’ Larry Gan and Simon Foong as having attended on behalf of PTSB and GNC, whilst DW3, Sushil, testified that he was the one who personally attended and presented the debt settlement proposal to MDV’s senior management. A representative from Coulter Group was also present. At the meeting, it was explained that GNC intended to acquire projects belonging to the Coulter Group, said to be worth approximately £98 million, by way of a Reverse Take Over (“RTO”) under Rule 14 of the AIM Rules. The acquisition consideration was to be satisfied by the allotment of new GNC shares to the Coulter Group. As part of the proposed transaction, MDV was to agree to a reduction of the outstanding debt and convert the balance into newly allotted GNC shares through the RTO. Panmure Gordon (UK) Limited (“Panmure”) was GNC’s Nominated Adviser (“NOMAD”) and broker at the material time. S/N Ncfrnj/v40Cwy/GF5rhUDg [15] On 30.11.2017, GNC issued an announcement on AIM (“1st Announcement”) confirming that it had entered into a Heads of Agreement with the Coulter Group for the proposed acquisition of CG TekBuild Pte Ltd (“CG TekBuild”), and that GNC’s shares had been suspended from trading pending the publication of the required AIM Admission Document. The proposed acquisition of CG TekBuild by GNC will be referred to as the “Proposed Acquisition.” Correspondence on Settlement Terms [16] By letter dated 22.12.2017 (“1st Letter”), MDV communicated to PTSB that it was agreeable to consider the Proposal, subject to specified conditions precedent and terms, including: the receipt of letters of guarantee and indemnity from Jespal, Sushil, and Anbananthan; the pledge of their shares in GNC; a put option in MDV’s favour against the Coulter Group; satisfactory legal opinion; receipt of a NOMAD Report; and the execution of a formal settlement agreement within 30 days of the letter. PTSB responded on 9.1.2018 (“2nd Letter”), indicating agreement in principle to most terms, whilst noting that a response on the put option was pending from the Coulter Group. [17] At a meeting on 29.1.2018, the Coulter Group and GNC indicated that they were not agreeable to a put option, and PTSB countered by proposing an “Orderly Market Agreement” instead. On 31.1.2018, GNC issued a further S/N Ncfrnj/v40Cwy/GF5rhUDg AIM announcement (“2nd Announcement”) disclosing that Panmure had served notice to terminate its engagement as NOMAD, with the resignation to take effect on 16.2.2018. A subsequent AIM announcement on 16.2.2018 (“3rd Announcement”) confirmed that Panmure’s resignation had taken effect. GNC did not inform MDV of either the 2nd or 3rd Announcements. [18] By letter dated 19.2.2018 (“4th Letter”), MDV set out revised settlement terms. As the 4th Letter is central to the Suit 300 Defendants' case that a binding compromise had been concluded, it is reproduced in full as follows: “PRIVATE AND CONFIDENTIAL Our Reference: DV814/PB/DCT/BL07/C05/1-2013 19 February 2018 Platinum TechSolve Sdn Bhd (Company No. 1170427-V) Suite 9.2, Level 9, WORK© Clearwater Changkat Semantan, Off Jalan Semantan Damansara Heights 50490 Kuala Lumpur Attention: YBhg. Tan Sri Dato' Sri Abi Musa Asa'ari bin Mohamed Nor Director Dear YBhg. Tan Sri, RE: PROPOSAL FOR THE ACQUISITION OF CG-TEKBUILD PTE LTD BY GRAPHENE NANOCHEM PLC (“REVERSE TAKE OVER” – RTO) AS PART OF S/N Ncfrnj/v40Cwy/GF5rhUDg THE SETTLEMENT AGREEMENT FOR THE OUTSTANDING SUM UNDER FACILITIES GRANTED BY MALAYSIA DEBT VENTURES BERHAD (“MDV”) TO PLATINUM NANOCHEM SDN BHD AND NOVATED TO PLATINUM TECHSOLVE SDN BHD (“FACILITIES”). We refer to the above, to our letters to you dated 22 December 2017 and 29 December 2017 and your letters to us dated 9 January 2018 and 29 January 2018. We are agreeable to consider your proposal for the settlement of amount due under the Facilities subject to the following terms and conditions: A. Fulfillment of the following conditions precedent prior to the execution of the settlement agreement between MDV and Platinum TechSolve Sdn Bhd: i) MDV's receipt of letter of guarantee and indemnity, in the form agreed by MDV, from the following guarantors (“Personal Guarantors”) guaranteeing repayment of all amount due and owing by Platinum TechSolve Sdn Bhd to MDV under the Facilities as at 31 December 2017:

Jespal Singh Deol a/l Balbir Singh (NRIC: 650929- 10-5093).

Sushil Sidhu a/l Joginder Singh (NRIC: 651017-08- 5485).

Anbanathan a/l Shanmugam (NRIC: 730114-10- 6191). S/N Ncfrnj/v40Cwy/GF5rhUDg ii) Pledge of all shares held by the Personal Guarantors in Graphene Nanochem Plc (“GNC”) in favour of MDV to secure all amount due and owing by Platinum TechSolve Sdn Bhd to MDV under the Facilities. B. Proceeds from the disposal of Platinum Performance Chem Sdn Bhd shall be excluded from the valuation for the proposed RTO. Any surplus from the sale proceeds, upon settlement of all amount due by Platinum Performance Chem Sdn Bhd to Bank Rakyat, shall be used to reduce the amount due and owing under the Facilities. C. MDV's conversion of debt into equity must be at a minimum of 3 pence per share. D. Receipt by MDV of satisfactory legal opinion from their solicitors with regards to MDV's conversion of debt into equity and other regulatory compliances. E. Receipt by MDV of the report from the Nominated Advisor for the proposed RTO. F. Any such other terms and conditions as MDV deems necessary. G. The settlement agreement between MDV and Platinum Techsolve Sdn Bhd shall be executed latest by 31 March 2018. Kindly let us know whether you agree to the above terms and conditions within 7 days from the receipt of S/N Ncfrnj/v40Cwy/GF5rhUDg this letter failing which the terms of this letter shall be deemed to have lapsed. We reserve all our rights. Thank you. Yours faithfully, MALAYSIA DEBT VENTURES BERHAD DATUK MD ZUBIR ANSORIYAHAYA MANAGING DIRECTOR/CHIEF EXECUTIVE OFFICER c.c.: Graphene Nanochem Plc” [19] What the NOMAD Report referred to in Item E of the 4th Letter was intended to comprise, and whether any such document was capable of being furnished in the form MDV envisaged, were matters that were disputed at trial and are addressed in the substantive findings below. By letter dated 26.2.2018 (“5th Letter”), PTSB indicated that it agreed to the terms in MDV's 4th Letter, though it sought to qualify the conditions precedent in Item A by reference to its earlier 2nd Letter. MDV replied on 27.2.2018 (“6th Letter”), reiterating that the settlement terms were to be based solely on its 4th Letter. No formal settlement agreement was ever executed. Delisting of GNC and Termination of Negotiations [20] On 16.3.2018, GNC made an announcement on AIM (“4th Announcement”) that its shares would be cancelled from trading on 19.3.2018, as GNC had failed to secure a S/N Ncfrnj/v40Cwy/GF5rhUDg replacement NOMAD within one month of Panmure’s resignation, as required by Rule 1 of the AIM Rules (“Delisting”). Neither PTSB nor GNC informed MDV of the Delisting. MDV discovered the Delisting on 27.3.2018. By email dated 28.3.2018, MDV sought clarification from PTSB, and by email dated 29.3.2018, PTSB confirmed the Delisting. [21] By letter dated 13.4.2018, MDV informed PTSB that its agreement to consider the Proposal, which had been premised on an RTO, had lapsed in light of the Delisting, and reserved all its rights under the Restructured Facility. PTSB responded by letter dated 25.4.2018, disputing MDV’s position. On 16.5.2018, MDV demanded that PTSB pay arrears of RM7,000,000.00 within seven days. PTSB did not comply. On 30.5.2018, MDV’s solicitors formally cancelled the Restructured Facility and demanded that PTSB pay the total sum of RM108,634,507.73, being the amount due and owing as at 24.5.2018. On 25.6.2018, MDV’s solicitors issued demands against GNC, Jespal, Sushil, and Anbananthan pursuant to the Corporate Guarantee and Personal Guarantee respectively, for the total outstanding sum of RM108,772,652.67 as at 31.5.2018 (“Outstanding Sum”). On 17.7.2018, MDV commenced Suit 300. S/N Ncfrnj/v40Cwy/GF5rhUDg Suit 643 The Parties [22] The Plaintiff in this suit is MDV, as described above. [23] The 1st Defendant, the aforementioned PNC (Platinum NanoChem Sdn Bhd), is a private limited company incorporated in Malaysia, currently in liquidation. PNC was wound up by the High Court of Malaya at Kuala Lumpur on 15.7.2016. The 2nd Defendant, the aforementioned PGC (Platinum Green Chemicals Sdn Bhd), is also a private limited company incorporated in Malaysia and currently in liquidation, having been wound up by the High Court of Malaya at Johor Bahru on 1.8.2016. PGC was the manufacturing arm of PNC, responsible for the production of the Finished Goods. The 3rd Defendant, Antara Commodities (M) Sdn Bhd (“ACSB”), and the 4th Defendant, Asian Food Ingredients Sdn Bhd (“AFI”), were both among the Approved Suppliers approved by MDV for the purpose of the RC Facility. [24] The 5th Defendant, the aforementioned Anbananthan, was a director of PGC and the former Chief Operating Officer of PNC, responsible for the operations of both companies, including manufacturing, supply chain management, and sales and marketing. The 6th Defendant, the aforementioned Jespal, and the 7th Defendant, the aforementioned Sushil, were directors of GNC, PNC, and S/N Ncfrnj/v40Cwy/GF5rhUDg PGC. The 8th Defendant, Tan Sri Abi Musa Asa’Ari bin Mohamed Nor (“Tan Sri Abi Musa”), served as the Non-Executive Chairman of the Platinum Group (including GNC). The RC Facility and Drawdown Process [25] The material facts pertaining to the grant of the RC Facility to PNC between 2011 and 2014, and its terms, are as described under Suit 300 above. [26]

MDV pleads that all eight defendants in Suit 643 conspired jointly, with intent to injure MDV, to procure disbursements under the RC Facility through false utilisation notices supported by Sale Contracts and invoices that the parties never intended to perform. Each time MDV disbursed funds to ACSB and/or AFI, representatives of PNC and/or PGC would arrange for the Sale Contracts to be immediately cancelled, with the disbursed monies then channelled back to the Platinum Group as working capital or paid to third parties on PGC’s behalf rather than being applied towards the purchase of feedstock. ACSB and AFI retained commissions of approximately RM370,000.00 and RM30,000.00 respectively. [47] MDV relies on the admissions made by Anbananthan and Sushil at the meetings of 23.6.2015 and 8.7.2015, and on the FHMH Report dated 7.10.2015. MDV pleads that but for the Suit 300 Defendants’ conduct, it would not have continued disbursing and would have received sale S/N Ncfrnj/v40Cwy/GF5rhUDg proceeds from Shell and SIETCO into the Project Account as required. [48] MDV claims RM90,676,143.66 in damages, being the total disbursements made against the cancelled Sale Contracts; general damages for unlawful means conspiracy and fraud; interest at 5% per annum from the date of the claim; solicitor-and-client costs; and further relief. The 3rd Defendant’s (ACSB’s) Defence [49] ACSB admits entering into Sale Contracts with PGC during 2013 and 2014, receiving payments from MDV in connection therewith, and retaining approximately RM370,000.00 by way of cancellation and broker fees. Its defence turns on the absence of any legal relationship with MDV. ACSB’s contracts were exclusively with PGC, which had the unqualified right to cancel or wash out those contracts, a practice ACSB characterises as standard in the palm oil industry, for which it charged a cancellation fee of RM12.00 to RM15.00 per metric tonne. ACSB had no direct dealings with MDV during 2013 and 2014 and accordingly owed MDV no duty of notification upon cancellation and no obligation to remit funds to MDV rather than to its contractual counterparty, PGC. ACSB denies any concealment, any unlawful act, and any participation in a conspiracy, and prays that MDV’s claim be dismissed with costs. S/N Ncfrnj/v40Cwy/GF5rhUDg The 4th Defendant’s (AFI’s) Defence [50] AFI pleads that it was an ordinary commodity trader with no knowledge of the RC Facility and no awareness that it had been designated an Approved Supplier by MDV. Its sole relevant transaction involved a single washout in January 2015 in which PGC, having offered to sell AFI Hydrogenated Vegetable Oil (“HVO”) and then informed AFI it could not deliver, requested a washout at a price differential of RM40.00 per metric tonne, which AFI formalised through the issuance of Sale Confirmation No. AFI/1096/15 and a written washout confirmation, both dated 20.1.2015. AFI contends the washout was a routine commercial mechanism common across all commodity trading. It disputes the accuracy of the FHMH Report as it relates to the transaction dates attributed to it, and denies that the report establishes any conspiracy or fraud on its part. AFI prays that MDV’s claim be dismissed. The 5th to 8th Defendants’ Defence and Counterclaim [51] The individual defendants, Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa, raise three principal lines of defence. First, they plead that the contract cancellations were legitimate commercial washouts, a recognised industry practice necessitated by the Platinum Group’s requirement to estimate feedstock purchases well in advance of confirmed customer orders, and that the practice involved no concealment and was consistent with the ordinary S/N Ncfrnj/v40Cwy/GF5rhUDg course of the Platinum Group’s business. Second, and more fundamentally, they invoke estoppel: MDV’s representative was at all times the sole signatory of the Project Account and thus had full visibility of the RC Facility’s cash flows; and following the FHMH Report, MDV issued a further Supplemental Letter of Offer within approximately 23 days proposing restructuring of the RC Facility, which ultimately resulted in SLO 13, the Novation, and the related securities. [52] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa, contend that MDV’s conduct in restructuring and novating the outstanding indebtedness, rather than pursuing any claim for fraud, conclusively demonstrates that it did not regard the underlying transactions as tortious at the material time, and that MDV is estopped from contending otherwise. Third, they raise an abuse of process objection: MDV’s claim in Suit 300 proceeds on the basis that the Restructured Facility is valid and enforceable, while its claim in Suit 643 alleges that the very transactions underlying that facility were vitiated by fraud and conspiracy. Those positions are irreconcilably inconsistent. [53] By counterclaim, Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa seek a declaration that the compromise was valid and binding on the parties in the terms of MDV’s letters dated 22.12.2017 and 19.2.2018, general damages for the burden of defending an abusive suit, costs on an indemnity basis, and further relief. MDV denies the Counterclaim, S/N Ncfrnj/v40Cwy/GF5rhUDg distinguishing the two suits as addressing distinct causes of action, namely contractual debt recovery and tortious liability respectively, and maintaining that both may be pursued concurrently without inconsistency or abuse of process. WITNESSES [54] In Suits 300 and 643, which were heard together, the witnesses appeared for the Plaintiff as follows: Suit 300 a) PW1 is the aforementioned Nizam Ishak, the Senior Assistant Vice President at MDV. His evidence primarily relates to his role as an Account Manager overseeing the RC Facility granted by MDV to PNC, the communications between MDV and the Platinum Group regarding the Proposal, and the preparation of the requisite draft settlement agreement. He testified that he liaised with the Platinum Group’s representatives to facilitate the settlement documentation and urgently sought clarification from them regarding the Delisting to ascertain its impact on the proposed settlement, while acknowledging that he did not have personal knowledge of the specific settlement terms negotiated by MDV’s senior management. His Witness Statement was marked as WS-PW1. S/N Ncfrnj/v40Cwy/GF5rhUDg b) PW2 is Rozita Khamsiah Othman (“Rozita”), the former Vice President of Legal and Secretarial at MDV. Her evidence primarily relates to her role in handling the legal documentation for the RC Facility granted to PNC, the restructuring and novation of the RC Facility, as well as the communications concerning the draft settlement agreement and the Delisting. She testified that, as an in-house legal advisor, she was not the decision-maker for restructuring the facilities but prepared documents based on the board’s approval, and she confirmed that MDV decided not to proceed with the Proposal because it was no longer viable following the Delisting. Her Witness Statement was marked as WS-PW2. c) PW3 is Ng Tse Khim, the Senior Assistant Vice President in the Business Division of MDV. His evidence primarily relates to his overall management of the PNC account in respect of the RC Facility, the chronology of the RC Facility granted, the subsequent Restructured Facility, and the communications regarding the Proposal. He testified that the proposed settlement was specifically for the conversion of the outstanding debt into freely tradeable listed shares of GNC on the AIM exchange, and that MDV ultimately withdrew from the settlement and issued a letter of demand after S/N Ncfrnj/v40Cwy/GF5rhUDg discovering the Delisting. His Witness Statement was marked as WS-PW3. d) PW4 is Nizam bin Mohamed Nadzri (“Nizam Nadzri”), the Chief Executive Officer of MDV. His evidence primarily relates to his involvement in the management meetings with the Platinum Group regarding the Proposal and the specific conditions imposed by MDV for the conversion of the debt into equity. He testified that MDV was only prepared to consider the settlement proposal on the premise that the debt would be converted into listed and freely tradeable shares on AIM, and that he made the executive decision to withdraw from the proposed settlement because the Delisting rendered the RTO exercise unviable. His Witness Statement was marked as WS-PW4. e) PW5 is Edward Hooper, Partner of Trowers & Hamlins LLP and the Plaintiff’s expert witness on English company law and AIM Rules. His evidence primarily relates to the process of RTO under the AIM Rules, the role of a NOMAD, and the regulatory impact of GNC delisting from the exchange. He testified as an expert that an RTO cannot take place without a NOMAD, and that, following the Delisting on 19.3.2018, the Proposed Acquisition was no longer subject to Rule 14 of the AIM Rules and therefore would not constitute an RTO under those S/N Ncfrnj/v40Cwy/GF5rhUDg rules. His Witness Statement was marked as WS-PW5. Suit 643 f) PW6 is Ng Tse Khim, the Senior Assistant Vice President in the Business Division of MDV who also testified for Suit 300. His evidence primarily relates to the purpose of the RC Facility granted to PNC, the drawdown process, and the discovery of the unauthorised utilisation of the disbursed funds. He testified that the facility was ring-fenced specifically to finance the purchase of primary feedstock from approved suppliers and that, following a site inspection by Crowe Horwath revealing no stock, PNC’s directors admitted that the disbursed monies had been diverted for general working capital instead of being used for their intended purpose. His Witness Statement was marked as WS-PW6. g) PW7 is Nizam Ishak, the Senior Assistant Vice President (formerly Account Manager) of MDV who also testified for Suit 300. His evidence primarily relates to the management of PNC’s accounts and the process of evaluating and approving new feedstock suppliers under the facility. He testified that he performed background checks to approve suppliers such as ACSB and AFI and later discovered, through a site inspection and S/N Ncfrnj/v40Cwy/GF5rhUDg subsequent meetings, that PNC had misrepresented their inventory levels and misused the disbursed funds for working capital and third-party payments instead of repaying MDV. His Witness Statement was marked as WS-PW7. h) PW8 is Vijendran a/l Rajendran (“Vijendran”), the Disbursement Manager in the Credit Management Division of MDV. His evidence primarily relates to the processing of drawdown requests and the mechanics of the fund disbursements under the RC Facility to approved suppliers. He testified that MDV disbursed a total of RM90,676,143.66 directly to approved suppliers ACSB and AFI based on utilisation notices and supporting documents submitted by PNC, which represented that the disbursements were required strictly for purchasing primary feedstock to fulfil specific onward sales contracts. His Witness Statement was marked as WS-PW8. i) PW9 is Liow Choong Kai, the Senior Vice President in the Credit Management Division of MDV. His evidence primarily relates to the approval of disbursements under the RC Facility and the specific irregularities concerning the transaction with AFI. He testified that he approved disbursements based on the strict condition that funds be utilised for purchasing feedstock and highlighted that the “washout” practice employed by the defendants in S/N Ncfrnj/v40Cwy/GF5rhUDg Suit 643 was a clear breach of the facility terms and a dishonest diversion of funds. He further noted that the transaction documents involving AFI purchasing from PGC rather than supplying to them were highly irregular. His Witness Statement was marked as WS-PW9. j) PW10 is the aforementioned Aimi, the Chief Business Officer of MDV. His evidence primarily relates to MDV’s restructuring negotiations with the Platinum Group and the admissions made by PNC’s directors regarding the misutilisation of the facility funds. He testified that, during meetings in 2015, PNC directors Sushil and Anbananthan revealed that the bulk of the monies disbursed to approved suppliers had been channelled back to fund the Platinum Group’s general working capital and that the unauthorised “washout” cancellations by ACSB and AFI circumvented the RC Facility’s closed-circuit design. His Witness Statement was marked as WS-PW10. k) PW11 is Liew Kim Yuen, the Head/Managing Director of Forensic and Litigation Support at FHMH. His evidence primarily relates to the independent forensic audit conducted by his firm to trace the utilisation of the monies disbursed by MDV under the RC Facility. He testified that, out of the RM352.81 million disbursed, approximately RM91.89 million S/N Ncfrnj/v40Cwy/GF5rhUDg constituted “washout amounts” which were not used to purchase primary feedstock for onward sales but were instead refunded by the suppliers (ACSB and AFI) back to the Platinum Group for working capital or paid directly to third parties, with the suppliers retaining a portion as brokerage commissions. His Witness Statement was marked as WS-PW11. Suit 300 a) DW1 is George Bompas QC, a Queen’s Counsel and the Suit 300 Defendants’ expert witness on English law and the AIM Rules. His evidence primarily relates to the admission procedure for a company carrying out an RTO exercise on the AIM of the London Stock Exchange and the interpretation of the AIM Rules regarding the Delisting. He testified that the procedures for an RTO and a fresh admission share similarities and that he was instructed that the Delisting was a “strategic decision” because there was no real value in maintaining its listed status while the Proposed Acquisition of CG TekBuild was being concluded. His Witness Statement was marked as WS-DW1. b) DW2 is Zailatul Akma binti Abid (“Akma”), the Director of PNC and former Head of Corporate and Legal Manager for the Platinum Group. Her evidence primarily relates to the corporate history of the PNC’s S/N Ncfrnj/v40Cwy/GF5rhUDg RC Facility, its subsequent restructuring and novation, and the negotiations surrounding the Proposal. She testified about the correspondence between the parties regarding the conversion of debt into listed shares and maintained that MDV’s withdrawal from the settlement following the Delisting from AIM was erroneous and without basis. Her Witness Statement was marked as WS-DW2. c) DW3 is the aforementioned Sushil, a former director of GNC and PNC, and a personal guarantor under the Restructured Facility. His evidence primarily relates to the Proposal involving the Coulter Group, and the strategic rationale behind the Delisting. He testified that MDV’s consent to convert the outstanding debt into listed shares was a material condition of the RTO, and he maintained that the subsequent delisting from the AIM was a strategic decision that offered better prospects for the business and did not have any bearing on the viability or progress of the RTO itself. His Witness Statement was marked as WS-DW3. Suit 643 d) DW4 is Martin Charles A/L T.B. Fernandez (“Martin”), the Managing Director of ACSB. His evidence primarily relates to the 38 sales contracts entered into with PGC between 2013 and 2014, and S/N Ncfrnj/v40Cwy/GF5rhUDg ACSB’s lack of knowledge regarding the RC Facility granted by the Plaintiff to the Platinum Group. He testified that his company received telegraphic transfers from the Plaintiff on behalf of PGC, and upon PGC’s subsequent instructions to cancel the contracts, ACSB followed standard palm oil industry “wash-out” practices by returning the payments (less brokerage charges) to PGC or remitting them to third parties, thereby denying any conspiracy or fraud against the Plaintiff. His Witness Statement was marked as WS-DW4. e) DW5 is Shannon Fernandez (“Shannon”), the General Manager of ACSB. His evidence primarily relates to ACSB’s lack of knowledge regarding the Plaintiff’s RC Facility and the circumstances surrounding the cancelled sales contracts (or “wash-out” transactions) with PGC. He testified that his company had no contractual relationship or communication with the Plaintiff, and only learned of the Plaintiff’s involvement through remitter remarks on ACSB’s bank statements. He further testified that “wash-outs” are a standard palm oil industry practice for mutually cancelling contracts, that ACSB acted strictly on PGC’s instructions when remitting the disbursed funds, and firmly denied any conspiracy to defraud the Plaintiff, highlighting that ACSB successfully performed about 65 other contracts with PGC and traded with nearly 30 other clients during S/N Ncfrnj/v40Cwy/GF5rhUDg the material time. His Witness Statement was marked as WS-DW5. f) DW6 is Kumaran Mariadas, the Managing Director of AFI. His evidence primarily relates to the single transaction involving the purchase of HVO from PGC, the subsequent “washout” of that contract, and AFI’s complete lack of knowledge regarding the Plaintiff’s RC Facility. He testified that his company purchased the commodity from PGC (rather than supplying it) and, upon PGC’s inability to deliver, agreed to a standard industry washout based on an agreed price difference of RM40.00 per metric tonne. He vehemently denied any conspiracy or fraud against the Plaintiff, noting that AFI had paid PGC the contract sum in advance and had even initiated separate legal and winding-up proceedings against the PGC, PNC and GNC over an unpaid debt of RM4.14 million. His Witness Statement was marked as WS-DW6. g) DW7 is the aforementioned Akma who also testified for Suit 300, the Director of PNC and former Head of Corporate and Legal Manager for the Platinum Group. Her evidence primarily relates to the background of the RC Facility granted by the Plaintiff, the severe financial difficulties faced by the Platinum Group following the collapse of global oil prices, and the subsequent restructuring and S/N Ncfrnj/v40Cwy/GF5rhUDg novation of the debt to PTSB. She testified that the contract cancellations were actually legitimate “washouts,” which are a common and necessary risk-mitigation practice in the commodity trading industry, and strongly denied any conspiracy to defraud the Plaintiff. Furthermore, she asserted that the Plaintiff’s present claim is an abuse of process because the parties had already reached a compromise to settle the debt via an RTO exercise involving the Coulter Group, which ultimately failed because the Plaintiff prematurely and wrongfully withdrew its consent. Her Witness Statement was marked as WS-DW7. h) DW8 is the aforementioned Sushil who also testified for Suit 300, director of GNC, PNC, and PGC. His evidence primarily relates to the operational mechanics of the RC Facility, the commercial justification for contract “washouts,” and the subsequent restructuring and compromise agreements reached with the Plaintiff. He testified that the washout of primary feedstock contracts with approved suppliers was a standard and necessary industry risk-mitigation practice to manage commodity price volatility, rather than a conspiracy to defraud the Plaintiff, and that the funds derived from these washouts were legitimately utilised for the Platinum Group’s working capital. He further testified that the Plaintiff was fully aware of these practices S/N Ncfrnj/v40Cwy/GF5rhUDg through the Platinum Group’s audited accounts and board meetings, and asserted that the present claim is an abuse of process given the Plaintiff’s subsequent decisions to restructure the RC Facility and agree to a debt conversion via an RTO exercise. His Witness Statement was marked as WS-DW8. i) DW9 is the aforementioned Anbananthan (Anbananthan A/L Shanmugam), the 5th Defendant, former Chief Operating Officer of PNC and former director of PGC. His evidence primarily relates to the operational processes of the Platinum Group, the commercial necessity of advance feedstock purchases, and the mechanics and justification of the “washout” transactions with approved suppliers. He testified that due to the time-consuming facility drawdown process and the variability in monthly volume nominations from contract customers such as Shell and Chevron Malaysia Limited, PGC was required to purchase primary feedstock in advance. When these advance orders resulted in an over-purchase, the excess was “washed out” with suppliers like ACSB and AFI at a pre-agreed fee to mitigate the risk of volatile commodity price fluctuations, and the resulting proceeds were legitimately utilised for the Platinum Group’s working capital or paid directly to third parties such as Sime Darby Biodiesel Sdn Bhd to purchase semi-finished S/N Ncfrnj/v40Cwy/GF5rhUDg goods. His Witness Statement was marked as WS-DW9. ISSUES TO BE TRIED Suit 300 [55] The Plaintiff filed a Plaintiff’s Statement of Issues to be Tried dated 24.5.2019, which identified the issues for determination for Suit 300. These are restated below using the definitions adopted in this judgment: a) Issue 1: Whether PTSB has breached its repayment obligation under the Restructured Facility pursuant to the Agreement to Novate, the Supplemental Agreement to Novate, and the Novation Agreement. b) Issue 2: Whether GNC has breached its repayment obligation under the Restructured Facility pursuant to the Corporate Guarantee. c) Issue 3: Whether Jespal, Sushil, and Anbananthan have breached their repayment obligation under the Restructured Facility pursuant to the Personal Guarantee. d) Issue 4: Whether the 1st Letter, the letter dated 29.12.2017, the 4th Letter, and the 6th Letter (collectively, the “Letters”) issued by MDV to PTSB S/N Ncfrnj/v40Cwy/GF5rhUDg amount to: (a) an agreement by MDV to consider the Proposal (“Agreement to Consider”); or (b) a binding compromise. e) Issue 5: If the Letters amount to an Agreement to Consider, whether MDV is obliged to accept PTSB’s Proposal. f) Issue 6: If the Letters amount to a binding compromise, whether PTSB has complied with all the terms and conditions and the conditions precedent stipulated, in particular, the following: (a) receipt by MDV of letters of guarantee and indemnity from Jespal, Sushil, and Anbananthan guaranteeing repayment of all amounts due and owing by PTSB to MDV under the Restructured Facility as at 31.12.2017; (b) pledge of all shares held by Jespal, Sushil, and Anbananthan in GNC in favour of MDV to secure all amounts due and owing by PTSB to MDV under the Restructured Facility; (c) receipt by MDV of the NOMAD Report on the proposed RTO; (d) execution of a formal settlement agreement between MDV and PTSB by 31.3.2018. g) Issue 7: Whether MDV is entitled to the reliefs sought in the statement of claim. S/N Ncfrnj/v40Cwy/GF5rhUDg h) Issue 8: If the Letters amount to a binding compromise, whether MDV has breached any of the terms of the compromise. i) Issue 9: If the answer to Issue 8 is in the affirmative, whether the Suit 300 Defendants have suffered any losses as a result thereof. j) Issue 10: If the answer to Issue 9 is in the affirmative, whether the Suit 300 Defendants are entitled to the reliefs sought in their Counterclaim. [56] Separately, the Suit 300 Defendants filed a Statement of Defendants’ Issues to be Tried on 18.9.2020, which identified the issues for determination for Suit 300. These are restated below using the definitions adopted in this judgment: a) Issue 1: Whether MDV had provided its consent to the conversion of PTSB’s outstanding debt under the Restructured Facility into GNC shares via the RTO by virtue of, inter alia, the following: (a) MDV’s participation in meetings and discussions held between MDV, the Suit 300 Defendants, and the Coulter Group; (b) the exchange of correspondence between MDV and PTSB and/or GNC between November 2017 and March 2018; (c) MDV’s act of preparing a settlement agreement to reflect the agreed terms of settlement. S/N Ncfrnj/v40Cwy/GF5rhUDg b) Issue 2: Whether the conduct of the parties at the material time as set out above amounts to a valid and binding compromise. c) Issue 3: If the conduct of the parties amounts to a binding compromise, then whether: (a) the Suit 300 Defendants are absolved in law of their obligations under the Restructured Facility as set out in, inter alia, the Agreement to Novate, the Supplemental Agreement to Novate, the Novation Agreement, the Corporate Guarantee, and the Personal Guarantee;

the execution of a formal settlement agreement between MDV and PTSB to reflect the compromise was a mere formality. d) Issue 4: Whether it was agreed between the parties that GNC was to remain listed on AIM throughout the duration of the RTO. If not, then whether GNC’s ability to satisfy its obligations to MDV (namely the issuance of listed shares) would have been impacted or impaired by reason of the Delisting. e) Issue 5: If the answer to Issue 2 is in the affirmative, whether MDV’s withdrawal of its consent to the RTO via MDV’s letter to PTSB dated 13.4.2018 amounts to a breach of the compromise which caused loss and damage to the Suit 300 Defendants. S/N Ncfrnj/v40Cwy/GF5rhUDg [57] Notwithstanding the above issues, from the facts of the case, defences relied on by the Suit 300 Defendants and the Plaintiff in the Original Action and Counterclaim respectively, and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether a valid and binding compromise was concluded between the parties through the exchange of correspondence between December 2017 and February 2018 such that MDV’s withdrawal on 13.4.2018 constituted a repudiatory breach. b) Whether the Delisting rendered the Proposal incapable of performance and thereby entitled MDV to treat the Proposal as having lapsed. c) Whether the NOMAD Report condition in Item E of the 4th Letter constituted a requirement incapable of fulfilment following the resignation of GNC’s NOMAD, thereby rendering the Proposal incapable of performance and having lapsed. d) Whether MDV, by its conduct, prevented PTSB from fulfilling the conditions precedent such that it is precluded from relying on their non-fulfilment to deny the existence of a binding compromise. S/N Ncfrnj/v40Cwy/GF5rhUDg e) Whether GNC and the Personal Guarantors remain liable under the Corporate Guarantee and Personal Guarantee notwithstanding the alleged compromise between MDV and PTSB. f) Whether MDV has established, on the evidence and pursuant to the certification clauses in the facility documents, the quantum of the Outstanding Sum claimed as due and owing from the Suit 300 Defendants. g) Whether the Suit 300 Defendants are entitled to recover, by way of their Counterclaim, damages for wasted expenditure and/or loss arising from MDV’s alleged breach of the proposed settlement arrangement. [58] The court’s analysis will be structured on the framed issues above. The Suit 300 Issues to be Tried as filed will be revisited for determination upon the court’s findings being made on the issues above framed by this court. Suit 643 [59] The parties filed a Statement of Agreed Issues to be Tried dated 6.1.2021, which identified the issues for determination for Suit 643. These are restated below using the definitions adopted in this judgment: S/N Ncfrnj/v40Cwy/GF5rhUDg a) Issue 1: Whether the defendants in Suit 643 had conspired by unlawful means to cause loss and damage to MDV, as alleged. b) Issue 1.1: Whether the purported ‘cancellation’ of contracts was in fact the industry practice of contract “washouts”. c) Issue 2: Whether the defendants in Suit 643 had caused loss and damage to MDV by fraud, as alleged. d) Issue 3: If the answers to Issues 1 and 2 are in the affirmative, whether MDV is entitled to the reliefs sought in the statement of claim. e) Issue 4: Whether the restructuring of the RC Facility between MDV and PNC into the Restructured Facility can in law or in fact absolve Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa of their liability to MDV under the tort of conspiracy and/or fraud. f) Issue 5: Whether the alleged compromise between MDV and PTSB can in law or in fact absolve Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa of their liability under the tort of conspiracy and/or fraud. S/N Ncfrnj/v40Cwy/GF5rhUDg g) Issue 6: Whether MDV, by filing Suit 300, elected to proceed on the basis that the Restructured Facility was valid and regular. h) Issue 7: Whether MDV is, in the circumstances of this case, estopped from filing its claim in Suit 643. i) Issue 8: Whether MDV’s claim in Suit 643 is an abuse of process. j) Issue 9: Whether Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa are entitled to the reliefs sought in their Counterclaim. k) Issue 10: Whether, at the material time, MDV had contracted, contacted, or communicated with ACSB at all, and in particular whether there was any request, necessity, requirement, or obligation for ACSB to notify MDV in the event of the cancellation and/or “washout” of the Sale Contracts by PGC. l) Issue 10.1: Whether ACSB owed any undertaking, obligation, or duty in law to notify MDV of any cancellation and/or “washout” by PGC. m) Issue 10.2: Whether in all the circumstances ACSB is liable to return the monies disbursed by MDV when PGC cancelled and/or “washed out” the Sale Contracts. S/N Ncfrnj/v40Cwy/GF5rhUDg n) Issue 10.3: Whether there were any unlawful acts, as a matter of law, on ACSB’s part, or any valid inference that ACSB had acted jointly with the rest of the defendants in Suit 643, with the necessary intention and/or deliberate cooperation to cause injury, loss, and/or damage to MDV. [60] Notwithstanding the above issues, from the facts of the case, defences relied on by the defendants in Suit 643 and the Plaintiff in the Original Action and Counterclaim respectively, and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether there is existence of any agreement, express or tacit, among the defendants in Suit 643 to injure MDV for the purposes of the alleged conspiracy. b) Whether the defendants in Suit 643 possessed the requisite intention to injure MDV for the purposes of the alleged conspiracy. c) Whether the defendants in Suit 643 employed unlawful means in furtherance of the alleged conspiracy. d) Whether MDV suffered actual damage caused by the alleged conspiracy of the defendants in Suit 643 for S/N Ncfrnj/v40Cwy/GF5rhUDg the purposes of the tort of conspiracy by unlawful means. e) Whether the defendants in Suit 643 made the representations in the drawdown documentation with knowledge of their falsity or recklessly and with the intention to deceive. f) Whether MDV’s alleged loss of RM90,676,143.66 was proximately caused by the alleged fraudulent misrepresentations of the defendants in Suit 643. g) Whether the individual defendants, namely Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa, are personally liable for the alleged conspiracy and fraud. h) Whether MDV is precluded by waiver, election, or estoppel arising from its post-FHMH conduct, including the restructuring and novation, from pursuing its claims against the defendants in Suit 643. i) Whether MDV’s pursuit of both Suit 300 and Suit 643 constitutes impermissible double recovery of the same loss. j) Whether MDV’s commencement of Suit 643 constituted a collateral abuse of process. S/N Ncfrnj/v40Cwy/GF5rhUDg [61] The court’s analysis will be structured on the framed issues above. The Suit 643 Issues to be Tried as filed will be revisited for determination upon the court’s findings being made on the issues above framed by this court. SUIT 300 ANALYSIS AND FINDINGS Whether There Was a Valid and Binding Compromise or Settlement The Law on Compromise [62] The principal issue in this case is whether a valid and binding compromise was concluded between the parties by the exchange of correspondence between December 2017 and February 2018, such that MDV’s withdrawal on 13.4.2018 constituted a repudiatory breach of that compromise. The Suit 300 Defendants submit that a binding compromise was reached by the time of the 6th Letter, with execution of the formal settlement agreement being merely a subsequent implementation step. MDV submits that no binding compromise was ever concluded: it was at all times only “agreeable to consider” the Proposal subject to conditions including the execution of a formal settlement agreement, the fulfilment of conditions precedent, and Item F of the 4th Letter, which reserved MDV’s right to impose additional terms. Item F reads: S/N Ncfrnj/v40Cwy/GF5rhUDg “Any such other terms and conditions as MDV deems necessary.” [63] The applicable principles are well settled. A compromise is a species of contract, and is formed only where the elements of contractual formation are satisfied, including offer, acceptance, consideration, certainty of terms, and an intention to create legal relations: see Info-communications Development Authority of Singapore v Singapore Telecommunications Ltd (No 2) [2002] 3 SLR 488 (High Court, Singapore), per Lai Kew Chai J at paragraphs 120 and 124: “A compromise is little more than a species of contract. What distinguishes it from other contracts is the requirement of a dispute or differences between parties which are eventually settled... In essence a compromise is to contract to settle disputes. If the elements of contractual formation are satisfied on the facts, then a compromise was entered into by the parties.” [64] The test for determining whether a binding contract has been formed is objective. The court examines what was communicated between the parties by words and conduct, and whether this leads objectively to the conclusion that they intended to create legal relations and agreed on all terms regarded or required by law as essential for the formation of a binding contract. Even if certain terms have not been finalised, an objective appraisal may lead to the S/N Ncfrnj/v40Cwy/GF5rhUDg conclusion that the parties did not intend agreement of such terms to be a precondition to a binding agreement. These principles were confirmed by the United Kingdom Supreme Court in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH [2010] UKSC 14, [2010] 1 WLR 753, per Lord Clarke at paragraph 45, and are applicable in Malaysia as affirmed by the Court of Appeal in Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and another appeal [2020] 5 MLJ 630 (Court of Appeal). [65] The proper approach to correspondence said to constitute a contract is to consider the whole correspondence on its true construction to see whether there is an offer substantially accepted in terms that constitute a contract: The Ka Wah Bank Ltd v Nadinusa Sdn Bhd [1998] 2 MLJ 350 (Federal Court). It is also settled that a binding contract may in principle be formed even where formal documentation remains to be executed, provided the parties objectively intended to be bound before such execution: Air Studios (Lyndhurst) Ltd v Lombard North Central plc [2012] EWHC 3162 (QB) (English High Court). The question is always one of intention, to be ascertained objectively from the parties’ words and conduct. The Correspondence Examined [66] Applying these principles to the correspondence as a whole, I am satisfied that no valid and binding compromise was concluded. The Suit 300 Defendants’ primary defence rests S/N Ncfrnj/v40Cwy/GF5rhUDg on the proposition that the exchange of six letters between December 2017 and 27.2.2018 crystallised into a binding settlement by the time of the 6th Letter dated 27.2.2018, with execution of the formal settlement agreement being merely a subsequent implementation step. MDV’s position is that it was, throughout, only “agreeable to consider” the Proposal subject to conditions, including the fulfilment of conditions precedent, the satisfaction of Item F, and the execution of a formal settlement agreement. For the reasons that follow, I accept MDV’s position and reject the Suit 300 Defendants’ case on the existence of a binding compromise. [67] First, MDV’s language throughout the correspondence was not the language of agreement but of conditional engagement. The 1st Letter dated 22.12.2017 opened with the words: “We are agreeable to consider your proposal for the settlement of the amount due under the Facilities subject to the following terms and conditions...” This language was carried through, without material alteration, to the 4th Letter dated 19.2.2018, which likewise stated that MDV was “agreeable to consider your proposal for the settlement of the amount due under the Facilities subject to the following terms and conditions.” Read objectively, that formulation conveys an ongoing process of evaluation subject to the fulfilment of stated conditions, not a concluded bargain. It stands in marked contrast to language such as “we agree” or “we accept” that would signal an unqualified acceptance. S/N Ncfrnj/v40Cwy/GF5rhUDg [68] The Suit 300 Defendants contend that the position evolved materially from the 1st Letter to the 6th Letter, and that by 27.2.2018 MDV had moved from conditional engagement to a concluded agreement. They point to the progression of correspondence and the various exchanges between the parties as evidence of an evolving consensus. That submission, however, cannot be reconciled with the text of the 4th Letter itself, which was issued on 19.2.2018, well after the intermediate exchanges, and still employed the phrase “agreeable to consider.” MDV’s consistent use of this conditional formulation, from the 1st Letter through to and including the 4th Letter, indicates that it had not committed itself to settling on the proposed terms but was prepared to proceed to settlement only upon the satisfaction of those conditions. [69] The Suit 300 Defendants submit that, by the time of the 6th Letter, the position had materially changed and MDV had objectively committed itself to a binding settlement. In particular, the Suit 300 Defendants rely on the second and third paragraphs of the 6th Letter: “Please be informed that the settlement terms shall be solely based on the terms of our letter dated 19 February 2018 (‘Settlement Letter’). We shall proceed to prepare the settlement agreement for your execution based on the terms of the settlement letter.” S/N Ncfrnj/v40Cwy/GF5rhUDg [70] The Suit 300 Defendants contend that the word “solely” in that paragraph signified that the settlement terms were finalised and that no further terms were to be added, thereby removing Item F and confirming a concluded agreement. They further rely on MDV’s own designation of the 4th Letter as the “Settlement Letter” in the 6th Letter, submitting that this characterisation demonstrates that MDV itself considered the settlement to have been concluded by that date. They also rely on the phrase “we shall proceed to prepare the settlement agreement for your execution” as indicating that there was no room for further negotiation and that execution was merely a procedural step to record a bargain that had already been struck. [71] I do not accept that reading of the 6th Letter. The 6th Letter was issued in direct response to the 5th Letter dated 26.2.2018, in which PTSB had purported to qualify its acceptance of MDV’s terms by insisting that Item A of the 4th Letter be read subject to PTSB’s earlier 2nd Letter dated 9.1.2018. By stating in the 6th Letter that the settlement terms shall be “solely based on” the 4th Letter, MDV was rejecting PTSB’s qualification and reasserting that its own 4th Letter, and not PTSB’s 2nd Letter, governed the terms. The 4th Letter expressly included Item F. Properly construed, the 6th Letter therefore incorporates by reference all the terms of the 4th Letter, including Item F. S/N Ncfrnj/v40Cwy/GF5rhUDg [72] The grammatical construction of the phrase “settlement terms shall be solely based on the terms of our letter dated 19 February 2018” reinforces this reading: the settlement terms referred to are those contained in the 4th Letter as a whole, not a subset of those terms with Item F extracted. If MDV had intended to waive or remove Item F, it would have said so in plain terms. It did not. The 6th Letter accordingly cannot be read as eliminating Item F. As for the label “Settlement Letter” applied by MDV to the 4th Letter, that characterisation does not advance the Suit 300 Defendants’ case: the 4th Letter, by its own terms, included Item F, and the label does not alter or extinguish the reservation contained within it. [73] PTSB did not respond to the 6th Letter. DW2 (Akma), a witness for PTSB, confirmed as much in cross-examination: “KK: Did you all respond to the 27th of February letter? AKMA: No.” [74] The absence of a response to the 6th Letter cannot, in any event, be treated as an unqualified acceptance by PTSB of the terms of the 4th Letter, since acceptance must be express and unequivocal. S/N Ncfrnj/v40Cwy/GF5rhUDg [75] Second, Item F itself is of fundamental significance. Item F stated that MDV’s consideration of the Proposal was subject to “any such other terms and conditions as MDV deems necessary.” This reservation created substantive uncertainty as to the final agreed terms of any settlement, because it meant that MDV remained contractually entitled to impose further terms as a precondition to any binding commitment. The presence of such an open-ended reservation is incompatible with consensus ad idem on all essential terms. In substance, Item F operated as a “subject to contract” qualifier: it preserved MDV’s right to require the settlement to incorporate additional terms beyond those already stated, and meant that the bargain remained incomplete until any such further terms were determined, agreed upon, and embodied in the formal settlement agreement. The position in this case is squarely analogous to Kam Mah Theatre Sdn Bhd v Tan Lay Soon [1994] 1 MLJ 108, where the Supreme Court held: “First, the proviso, stated as a proviso to condition 3 to which the sale of the said land would be subject, postulated very clearly the making of a sale and purchase agreement that would also include other ‘usual terms and conditions’. What would be the usual terms and conditions remained largely a matter of conjecture, thus the words would create uncertainty unless a contract containing these agreed ‘usual terms and conditions’ had been signed by the parties. Then again, the proviso to condition 3 further stated that the agreement had to be signed on or before 18 March S/N Ncfrnj/v40Cwy/GF5rhUDg 1989, failing which the deposit of RM90,394.20 would be refunded to the plaintiff free of interest without demand. We were of the view, therefore, that the proviso would have the same effect as if the formula of ‘subject to contract’ had been in the said document.” [76] The Suit 300 Defendants sought to distinguish Kam Mah Theatre on the basis that in that case the additional terms were expressly required to be incorporated into a formal agreement through unequivocal language, whereas in the present case the parties had arrived, through successive exchanges, at mutually agreed terms. That distinction does not assist the Suit 300 Defendants. The operative principle in Kam Mah Theatre is that an express reservation of the right to add further terms, whether styled as “usual terms and conditions” or, as here, “any such other terms and conditions as MDV deems necessary”, is incompatible with a concluded bargain. Item F is at least as open-ended as the reservation in Kam Mah Theatre, and the reasoning in that case applies with equal force. [77] I accept MDV’s submission that Item F was not a mere “boilerplate” provision: it was an express mechanism by which MDV retained the right to supplement the settlement terms as a matter of substance. There is no evidence on the record that MDV, at any point prior to the withdrawal on 13.4.2018, indicated that it had abandoned, waived, or was no longer minded to exercise the reservation in Item F. The S/N Ncfrnj/v40Cwy/GF5rhUDg alleged compromise therefore lacked the certainty and completeness required for a binding contract. [78] Third, the 6th Letter stated that MDV would prepare the settlement agreement “for your execution.” This expression, read objectively in its commercial context, indicates that binding effect was intended to arise upon execution of the formal settlement agreement, not before. The Suit 300 Defendants contend that the phrase “for your execution” merely meant that the agreement would be signed as a procedural formality, and rely on the established principle that a binding contract may in principle be formed even where formal documentation remains to be executed: see Air Studios (Lyndhurst) Ltd v Lombard North Central plc (supra) at paragraph 5 (English High Court), affirmed by the Court of Appeal in Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and another appeal (supra) at paragraphs 14–15. That principle is not in dispute. [79] The question, as these authorities themselves acknowledge, is always one of intention, to be determined objectively from the parties’ words and conduct: see RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH (supra), per Lord Clarke at paragraph 45 (United Kingdom Supreme Court). The present case is not one in which formal documentation was a mere recording mechanism for a bargain already objectively complete. On the contrary, the Federal Court in Deutsche Bank (M) Bhd v MBF Holdings S/N Ncfrnj/v40Cwy/GF5rhUDg Bhd & Anor [2015] 6 MLJ 310 held at paragraph 73 that it “can be dangerous to pick out isolated parts of correspondence to find agreement when the whole evidence is that a formal deed was necessary for a binding contract and all else was preliminary,” and affirmed at paragraph 80 that without the execution of the required agreement, “no binding contract could come into being.” [80] In the present case, MDV was a government-linked financing institution dealing with a complex debt-to-equity conversion involving the proposed extinguishment of a sum exceeding RM100 million through a novel RTO structured under international securities regulations. In such a context, it is commercially improbable that MDV would have intended to bind itself irrevocably to relinquish that debt through an exchange of letters alone, where those very letters expressly contemplated the subsequent execution of a formal settlement agreement. The 5th Letter itself looked forward to receiving “the draft settlement agreement and all other relevant documents from you for our review and further action”, language that presupposes an ongoing process rather than a concluded bargain. Read in context, the phrase “for your execution” in the 6th Letter confirms that legal relations were to be created by execution, and not by the prior exchange of correspondence alone. [81] Fourth, the 6th Letter also contained an express general reservation of all of MDV’s rights. That reservation is irreconcilable with the Suit 300 Defendants’ portrayal of the S/N Ncfrnj/v40Cwy/GF5rhUDg 6th Letter as confirming a finalised and concluded agreement. A party that has irrevocably committed itself to binding obligations does not simultaneously reserve all of its rights. They did not address this general reservation in any substantive manner in their post-trial submissions. Its presence in the very same letter that the Suit 300 Defendants invoke as the letter of final commitment is, in my judgment, wholly inconsistent with the existence of a concluded bargain. An express general reservation of rights is an acknowledgement, not a confirmation, of the incomplete character of the parties’ legal position. It preserves, rather than extinguishes, the reserving party’s entitlement to insist on the fulfilment of outstanding conditions before any binding commitment is treated as arising. [82] Fifth, the conduct of the parties after the 6th Letter is inconsistent with a concluded settlement. The draft settlement agreement was not circulated by MDV’s solicitors until on or about 27.3.2018, nearly one month after the 6th Letter. The WhatsApp exchanges in March 2018 between PW1 (Nizam Ishak) of MDV and DW2 (Akma) of PTSB are instructive. The exchanges read, in material part, as follows: “Salam Nizam, hope you are keeping well. Just wanted to follow up the draft” (15.3.2018) S/N Ncfrnj/v40Cwy/GF5rhUDg “Wslm Akma. we shld be getting it by next week from lawyer, after which we can fwd to you” (15.3.2018) “Thank you Nizam. Please, can you have your legal expedite - agmt will also need to be sent to CG TekBuild as well and their legal will need to review. Takut it will take time ya” (19.3.2018) “Salam Nizam, still have not received the agmts. What is the status ya?” (23.3.2018) “Wslm Akma. still pending from our lawyer, we are following up with them.” (23.3.2018) [83] The Suit 300 Defendants rely on these WhatsApp exchanges to demonstrate that there were no further terms to be negotiated and that the parties were ready to execute the formal settlement agreement. On the contrary, these exchanges reveal that as late as March 2018, the draft agreement had not been circulated, was still being prepared by MDV’s external solicitors, and required review by multiple parties including CG TekBuild’s legal team before execution could take place. MDV’s Chief Executive Officer, PW4 (Nizam Nadzri), confirmed in cross-examination that the formal agreement was still being prepared by MDV’s external solicitors at that stage. This conduct is not consistent with parties who considered themselves already legally bound and were completing a mere administrative formality. On the contrary, it is consistent with parties engaged in a process of agreement that had not yet crystallised. S/N Ncfrnj/v40Cwy/GF5rhUDg [84] Sixth, under Item G of the revised settlement terms set out in the 4th Letter dated 19.2.2018, the settlement agreement was to be executed no later than 31.3.2018. No settlement agreement was executed by that deadline or at all. The failure of the parties to execute a settlement agreement within the very timeline they themselves had stipulated is a matter of some significance. Had the parties intended the exchange of correspondence alone to constitute a binding commitment, with execution of the formal agreement being a mere formality, one would expect them to have proceeded promptly to that formality by the stipulated deadline of 31.3.2018. They did not. The failure to execute within the stipulated timeline strongly supports the conclusion that the negotiations had not crystallised into a binding compromise. [85] Seventh, the conditions precedent in Item A(i) of the 4th Letter remained unfulfilled. Item A(i) required MDV’s receipt of a letter of guarantee and indemnity, in the form agreed by MDV, from the Personal Guarantors, “guaranteeing repayment of all amount due and owing by Platinum Techsolve Sdn Bhd to MDV under the Facilities as at 31 December 2017.” The Personal Guarantors never provided such an instrument. PTSB’s position in the 5th Letter was that “the guarantors are agreeable to extend their guarantee up to the completion of the exercise” which is a formulation drawn from PTSB’s earlier 2nd Letter dated 9.1.2018. DW2 (Akma) maintained in cross-examination that there was no material difference between the two formulations: S/N Ncfrnj/v40Cwy/GF5rhUDg “KK: So, there’s no difference? AKMA: No.” [86] However, the objective terms of the two formulations are plainly different in effect. MDV’s formulation in Item A(i) required the Personal Guarantors to guarantee the full outstanding debt as a present and subsisting obligation, enforceable by reference to the position as at 31.12.2017. PTSB’s formulation would limit the guarantee to a contingent liability, arising and enforceable only in the event that the RTO was not completed. The qualification in PTSB’s 5th Letter accordingly amounted to, at best, a counter-proposal. This counter-proposal was not accepted by MDV: the 6th Letter expressly reasserted that the settlement terms were to be solely based on the 4th Letter. No consensus was ever reached on this essential condition, and DW2’s assertion to the contrary does not withstand objective scrutiny. [87] Eighth, the condition precedent in Item A(ii), which required the pledge of all shares held by the Personal Guarantors in GNC in favour of MDV, likewise remained wholly unfulfilled. In MDV’s email to PTSB dated 28.3.2018, more than one month after the 6th Letter, MDV sought urgent clarification on three outstanding matters in relation to the pledge of shares: (a) details of the account where the existing shares were being deposited; (b) the clearing system to be used for the allotment of the shares in GNC to MDV; and (c) the form S/N Ncfrnj/v40Cwy/GF5rhUDg of registration of the shares to be allotted to MDV. PW1 (Nizam Ishak) confirmed the position in cross-examination: “MJ: And would I be correct to say that at that point in time, on the 28th March, you were in the midst of preparing the pledged documents. NIZAM: Yes.” [88] These admissions establish that, as at 28.3.2018, the essential mechanism for the pledge of shares had not been finalised, the requisite pledge documents had not been prepared, and the condition precedent in Item A(ii) remained wholly unsatisfied. This state of affairs is entirely inconsistent with the Suit 300 Defendants’ characterisation of the formal settlement agreement as a mere procedural formality. A party in the position of having concluded a binding commitment does not, nearly five weeks after the alleged conclusion, find itself unable to identify the account into which shares are to be deposited or the clearing system through which they are to be allotted. The non-fulfilment of Item A(ii) furnishes a further and independent basis for the conclusion that no binding compromise had been achieved. [89] For all the foregoing reasons, I find that no valid and binding compromise was concluded by the exchange of the six letters. The cases relied upon by the Suit 300 Defendants, namely Info-communications Development Authority of Singapore v Singapore Telecommunications Ltd (No 2) S/N Ncfrnj/v40Cwy/GF5rhUDg (supra), per Lai Kew Chai J; Gay Choon Ing v Loh Sze Ti Terence Peter and Another Appeal [2009] SGCA 3 (Court of Appeal, Singapore); and The Ka Wah Bank Ltd v Nadinusa Sdn Bhd (supra), do not assist the Suit 300 Defendants. In Info-communications, Lai Kew Chai J affirmed the governing principle as follows: “A compromise is little more than a species of contract. What distinguishes it from other contracts is the requirement of a dispute or differences between parties which are eventually settled... In essence a compromise is to contract to settle disputes. If the elements of contractual formation are satisfied on the facts, then a compromise was entered into by the parties.” [90] The principle is not in dispute. What distinguishes the present case from each of those authorities is that none of them involved a provision equivalent to Item F; none involved the consistent use throughout the correspondence of “agreeable to consider” language in place of an unqualified acceptance; none involved a general reservation of rights in the very letter said to finalise the settlement; and none involved an unexecuted formal agreement that the parties themselves had expressly stipulated was required within a prescribed timeframe. In Gay Choon Ing, the Court of Appeal confirmed that a validly concluded compromise binds the parties to its terms. In The Ka Wah Bank, the Federal Court confirmed that the proper approach is to consider the whole correspondence on its S/N Ncfrnj/v40Cwy/GF5rhUDg true construction to see whether there is an offer substantially accepted in terms that constitute a contract. [91] Applying that very approach to the correspondence in the present case leads, in my judgment, inevitably to the opposite conclusion: the whole of the correspondence, read objectively and in context, discloses not a concluded bargain but a conditional process of evaluation from which no binding contract emerged. The present case is factually distinguishable from each of those authorities on every relevant dimension, and they afford no assistance to the Suit 300 Defendants. [92] It follows that the Suit 300 Defendants’ primary defence, namely that MDV’s withdrawal by its letter of 13.4.2018 constituted a repudiatory breach of a binding compromise, necessarily fails, because there was no binding compromise capable of being breached. Since the pre-condition to their primary defence is not made out, the entirety of the case as pleaded in the Defence and Counterclaim that is premised upon the existence of a concluded compromise falls away. MDV’s letter of 13.4.2018 was not a repudiatory breach but a lawful withdrawal from negotiations that had not crystallised into a binding contract, and the Suit 300 Defendants’ Counterclaim, being founded entirely on the alleged breach of a non-existent compromise, has no legal foundation. S/N Ncfrnj/v40Cwy/GF5rhUDg Whether the Proposal Lapsed by Virtue of the Delisting [93] Notwithstanding my primary finding at paragraphs 89 to 92 above, I address the Delisting issue as an independent alternative ground, in the event that I am wrong on the primary finding. For the purposes of this section, “Delisting” refers to the cancellation of GNC’s shares from trading on AIM with effect from 19.3.2018, pursuant to the 4th Announcement made by GNC on 16.3.2018. The issue is whether the Delisting rendered the Proposal, as negotiated and presented to MDV, no longer capable of performance, and whether MDV was accordingly entitled to treat the Proposal as having lapsed. [94] The Suit 300 Defendants submit that the Delisting was a “strategic decision” made consciously by GNC’s directors in the context of ongoing discussions with the Coulter Group and upon advice received from Beaumont Cornish Limited, a prospective replacement NOMAD. Their case, as explained by DW3 (Sushil) in cross-examination, is that GNC had decided to permit the Delisting in the expectation that it would thereafter seek a fresh listing by way of an initial public offering (“IPO”) upon completion of the Proposed Acquisition of CG TekBuild. [95] The Suit 300 Defendants rely principally on the evidence of their expert witness, George Bompas QC (a member of the Bar of England and Wales since 1975, and a Queen’s Counsel, as the title was known at the time he gave S/N Ncfrnj/v40Cwy/GF5rhUDg evidence on 8.10.2021 and 15.11.2021), whose report was affirmed by affidavit on 16.9.2020. Mr Bompas opined, in substance, that there was no practical difference between an AIM company carrying out an RTO while its shares remained admitted to trading and a company seeking a fresh listing on AIM following a delisting, in conjunction with an acquisition. He relied on the last paragraph of Rule 14 of the AIM Rules for Companies, which provides: “Where shareholder approval is given for the reverse takeover, trading in the AIM securities of the AIM company will be cancelled. If the enlarged entity seeks admission, it must make an application in the same manner as any other applicant applying for admission of its securities for the first time.” [96] On this basis, Mr Bompas concluded that the Delisting was effectively what would have occurred in any event upon completion of the RTO, that is, the existing AIM listing would have been cancelled and the enlarged entity would have been required to seek fresh admission, and that the Delisting therefore had no adverse impact on GNC’s ability to complete the transaction and deliver listed shares to [97] In further development of the Suit 300 Defendants’ position, Mr Bompas opined that the NOMAD’s Declaration, being the document required to be submitted to the London Stock Exchange pursuant to Schedule 2 of the AIM Rules for Nominated Advisers, need only be submitted at least three S/N Ncfrnj/v40Cwy/GF5rhUDg business days before the intended fresh admission of the enlarged entity’s shares, and not in advance of the shareholders’ general meeting to approve the RTO. He drew no distinction in this regard between the RTO and IPO routes. [98] The Suit 300 Defendants also relied on a written opinion dated 16.4.2018 furnished by Beaumont Cornish Limited (the incoming nominated adviser), which stated that “there is no practical difference in the admission procedure between a company carrying out an RTO whilst remaining listed on the AIM and a company seeking an IPO following its shares being delisted from AIM and then for the company to seek a fresh listing in conjunction with an acquisition.” This was stated in the Letter of Instructions to Expert from the law firm Bird & Bird LLP to George Bompas QC, dated 11.8.2020. [99] The Suit 300 Defendants contend that MDV’s decision to treat the Proposal as having lapsed by its letter of 13.4.2018 was therefore made without commercial or legal justification, and that the Delisting had no bearing on MDV’s ability to receive listed shares in the enlarged GNC entity upon completion of the Proposed Acquisition. [100] MDV submits that the Delisting fundamentally altered the commercial premise underlying the Proposal. The commercial proposition presented to MDV at the 29.11.2017 meeting, and as consistently reflected S/N Ncfrnj/v40Cwy/GF5rhUDg throughout the exchange of correspondence between November 2017 and February 2018, was that MDV would receive freely tradeable listed shares in GNC upon completion of the RTO. MDV was at all material times dealing with an AIM-listed company that had an active NOMAD in place. Following the Delisting on 19.3.2018, GNC’s shares were no longer listed on AIM. At best, MDV would receive shares in a company that was unlisted pending a future application for re-admission to AIM, the outcome of which was uncertain and speculative. [101] MDV further submits that the Delisting was not a strategic decision but was a direct regulatory consequence of GNC’s failure to appoint a replacement NOMAD within the one-month period stipulated under Rule 1 of the AIM Rules, and that the 4th Announcement itself demonstrates this. MDV additionally submits that the departure of Panmure as NOMAD and the attendant Delisting meant that the NOMAD Report condition in Item E of the 4th Letter could no longer be fulfilled, thereby rendering the Proposal incapable of performance on its own terms. [102] MDV’s expert witness, Edward Hooper, a partner at Trowers & Hamlins LLP (London) with extensive experience in AIM listings, affirmed his affidavit on 18.9.2020 enclosing his Expert Report dated 14.9.2020. Mr Hooper opined that Panmure’s departure from its role as GNC’s NOMAD was not orderly. The 2nd Announcement of 31.1.2018 was an “intra-day” announcement with a termination date some 16 S/N Ncfrnj/v40Cwy/GF5rhUDg days later, as compared to what he described as a “market standard” notice period, which is often for a minimum of one month. In his report, Mr Hooper stated: “The ‘intra-day’ announcement, the short notice of resignation and the lack of a replacement nominated adviser are all indicative that this resignation was neither planned by GNC nor orderly. In our experience, when a nominated adviser resigns at short notice, with the announcement being ‘intra-day’ and no new nominated adviser has been appointed, it is the nominated adviser, rather than the AIM company, seeking to terminate the engagement and doing so often as a result of a ‘last resort’ following a fundamental difference of opinion between the parties.” [103] Mr Hooper further opined that in order to proceed with the proposed RTO, GNC would therefore have needed to appoint a new NOMAD, both in the capacity as NOMAD to GNC prior to completion of the RTO and in the capacity as a new applicant for admission to AIM. He observed that without a NOMAD, the NOMAD Report contemplated in Item E of the 4th Letter could not be provided in advance of the proposed RTO, as the requirement for that report added importance to the role of the NOMAD in circumstances where “without the report, the proposed settlement terms would not be capable of being satisfied.” S/N Ncfrnj/v40Cwy/GF5rhUDg [104] Additionally, Mr Hooper drew an important distinction on the question of timing. Under a Rule 14 RTO by an AIM-listed company with an active NOMAD, the cancellation of the existing AIM company’s shares and the admission of the enlarged entity’s shares would ordinarily take place simultaneously, so that there would be no interval during which MDV was exposed to the risk of holding shares without listed status. Under the path that arose after the Delisting, namely a fresh IPO application, there would, as Mr Hooper expressed it, “naturally be a period of time where MDV wasn’t able to expect, there was no guarantee that it was able to expect that any shares that were converted were shares in a created vehicle.” [105] I accept that the Delisting was not a voluntary or strategic decision on the part of GNC or PTSB. Under Rule 1 of the AIM Rules for Companies, an AIM company is required to retain a NOMAD at all times. Panmure’s resignation with effect from 16.2.2018 was confirmed by the 3rd Announcement. GNC failed to appoint a replacement NOMAD within the one-month period required under the AIM Rules. [106] The 4th Announcement of 16.3.2018 expressly attributed the forthcoming cancellation of GNC’s shares from trading to GNC’s failure to comply with Rule 1. That announcement stated: “Pursuant to Rule 1 of the AIM Rules, the Company had one month to appoint a replacement Nomad to prevent the admission of its AIM securities to be cancelled” and S/N Ncfrnj/v40Cwy/GF5rhUDg “Unfortunately, despite efforts of the existing Directors, the Company has not been able to secure the official appointment of a replacement Nomad within this timeframe.” Furthermore, the announcement stated that “Pursuant to AIM Rule 1, the Company’s shares will be cancelled from trading on AIM at 7:00 a.m. on 19 March 2018.” This language is unequivocal: it records that the Delisting was a regulatory sanction for non-compliance, not a decision freely made by GNC. [107] Critically, there is no mention in the 4th Announcement, nor in any of the three earlier AIM announcements, that GNC had made a strategic decision to allow a month to pass without appointing a NOMAD. Both expert witnesses accepted in substance that once no replacement NOMAD had been appointed within the requisite period, the cancellation was the regulatory consequence under the AIM Rules and not a matter of choice for the company. When cross-examined, Mr Bompas conceded: “I think that’s a composite question but I think the elements of it are correct. Because they (there) had been no replacement NOMAD within a month the shares were to be cancelled and that wasn’t a matter of choice for the company.” He further agreed that there was no mention in the 4th Announcement that GNC had made a strategic decision to allow a month to pass without a NOMAD. S/N Ncfrnj/v40Cwy/GF5rhUDg [108] The Suit 300 Defendants’ characterisation of the Delisting as a “strategic decision” is accordingly not supported by the objective evidence of GNC’s own public announcements and is rejected. [109] I further find that the Delisting fundamentally altered the nature of the commercial proposition that had been placed before MDV. The core premise of the Proposal, as presented to MDV on 29.11.2017 and as reflected throughout the exchange of correspondence, was that MDV would receive listed and freely tradeable shares in GNC upon completion of the RTO. The Heads of Agreement of 24.11.2017 itself described an RTO of an AIM-listed company. By 19.3.2018, GNC’s shares had been cancelled from AIM trading. The prospect that MDV would receive freely tradeable listed shares upon completion of the transaction was therefore no longer assured. At best, MDV would receive shares in an unlisted entity, subject to the uncertainty and delay attendant upon a fresh application for admission to AIM. That is a materially and commercially different proposition from that which had formed the basis of the settlement discussions. [110] The commercial significance of listed status was clearly understood and acknowledged by all parties throughout the negotiations. DW2 (Akma) accepted in re-examination that listing was a critical part of both parties’ consideration in proceeding with the exercise, and that the RTO and the debt conversion were interdependent, such that neither S/N Ncfrnj/v40Cwy/GF5rhUDg could happen without the other and both had to be completed simultaneously. She acknowledged that there was no scenario in which non-listed shares would be issued to MDV, and that absent a listing, the exercise would return to the status quo on the debt. That evidence of DW2 is consistent with MDV’s position and confirms that the listed character of the shares was not a peripheral feature of the Proposal but its commercial core. [111] The Suit 300 Defendants, relying on Mr Bompas’s evidence, contend that Rule 14 of the AIM Rules in any event contemplated that, upon the taking effect of an RTO, the existing shares of the AIM company would be cancelled and the enlarged entity would need to seek fresh admission to AIM. On this basis, the Suit 300 Defendants argue, the procedural outcome is the same whether or not the Delisting had occurred. I acknowledge the force of this argument insofar as it goes to the procedural mechanics of re-admission under the AIM Rules. However, it does not address the fundamental commercial reality distinguishing the two paths. [112] Under a Rule 14 RTO by an AIM-listed company with an active NOMAD, the cancellation of the existing shares and the admission of the enlarged entity’s shares would ordinarily take place simultaneously, so that there would be no gap in listing status and MDV’s shares in the enlarged entity would be admitted to trading at the moment of completion. Under the path that arose following the S/N Ncfrnj/v40Cwy/GF5rhUDg Delisting, GNC was already without listed status and without a NOMAD, and the outcome of any fresh IPO application was entirely speculative. As Mr Hooper stated in re-examination, there would “naturally be a period of time where MDV wasn’t able to expect, there was no guarantee that it was able to expect that any shares that were converted were shares in a created vehicle.” [113] This timing dimension, namely the gap in listing status and the attendant risk of exposure to an unlisted equity holding, is not neutralised by Mr Bompas’s reliance on the procedural equivalence of the end-state under both routes. The Suit 300 Defendants’ argument also fails to address the additional layers of uncertainty arising from the departure of the NOMAD and the speculative nature of any re-admission application. The Proposal had been presented and negotiated on the basis of an AIM-listed company with an active NOMAD undertaking an RTO. That regulatory foundation had been disrupted by events attributable to GNC’s own failure to comply with the AIM Rules. [114] Accordingly, I find, as an alternative and independent ground, that even if a binding compromise had been concluded (which I have found it was not), the Delisting rendered the Proposal, as presented and negotiated, no longer viable. The commercial premise of the Proposal, namely that MDV would receive freely tradeable listed shares in an AIM-listed company upon completion of the RTO, could no longer be fulfilled in the manner originally S/N Ncfrnj/v40Cwy/GF5rhUDg contemplated. The position that MDV would, at best, receive shares in an unlisted entity subject to a speculative re-admission process is materially different from the proposition that had been placed before MDV and formed the basis of its conditional engagement. MDV was therefore entitled to treat the Proposal as having lapsed. The NOMAD Report Condition [115] A related issue concerns the NOMAD Report condition in Item E of the 4th Letter. The agreed language of Item E, as set out in the 4th Letter dated 19.2.2018 and accepted by PTSB in the 5th Letter dated 26.2.2018, read: “Receipt by MDV of the report from the Nominated Advisor for the proposed RTO.” MDV submits that Item E was a required condition of the settlement arrangement that could no longer be fulfilled following Panmure’s resignation with effect from 16.2.2018 and the Delisting. MDV further submits that the NOMAD Report was required to be provided to MDV in advance of the completion of the RTO, and not solely at the moment of completion, because the language of Item E is forward-looking and contemplates delivery of the relevant document to MDV as a condition precedent to the settlement taking effect. [116] The Suit 300 Defendants submit, by contrast, that the “NOMAD Report” referred to in Item E is in substance the NOMAD’s declaration, referred to as the NOMAD Declaration, required under the AIM Rules for Nominated S/N Ncfrnj/v40Cwy/GF5rhUDg Advisers, which under Rule 5 of the AIM Rules for Companies is to be submitted to the London Stock Exchange as part of the admission document at least three business days before the expected date of admission, that is, at or upon completion of the RTO. They rely in this connection on PTSB’s 2nd Letter dated 9.1.2018, in which PTSB proposed that Item E be amended to read: “NOMAD: To be provided immediately upon completion.” The Suit 300 Defendants further submit that Item E was not, on the face of the 4th Letter, a condition precedent to execution of the settlement agreement, and PW4 (Nizam Nadzri) accepted in cross-examination that the only conditions MDV required to be fulfilled prior to the execution of the settlement agreement were those in Clause A(i) and A(ii) of the 4th Letter: “MJ: Now, looking at the words employed by MDV in Clause A, would you agree with me that the conditions in Clause A(i) and A(ii) were the conditions precedent that MDV wanted fulfilled prior to the execution of the settlement agreement. NADZRI: That is correct. MJ: Ok. So in other words, prior to the execution of the settlement agreement, MDV had wanted (a) the letters of guarantee and indemnity from the personal guarantor, and (b) a pledge of shares. NADZRI: That is correct.” S/N Ncfrnj/v40Cwy/GF5rhUDg [117] The Suit 300 Defendants additionally submit that MDV never formally requested delivery of any NOMAD Report during the period from January to April 2018, and that the NOMAD Report issue was raised by MDV for the first time only in its letter of 15.5.2018, and not in the 13.4.2018 withdrawal letter which cited the Delisting alone as the basis for MDV’s withdrawal. In further support of the “upon completion” construction, they also rely on MDV’s own letter of 15.5.2018, which described the NOMAD document as one “to be provided immediately upon completion of the RTO,” as confirmation that both parties had at all times understood the NOMAD Declaration to be a step taken at the point of completion. [118] On the evidence, MDV’s witnesses acknowledged that no formal request was made to PTSB or GNC for delivery of the NOMAD Report during the period from January to April 2018, and that the issue was not raised in MDV’s 13.4.2018 letter. PW4 (Nizam Nadzri) confirmed in cross-examination that the 13.4.2018 letter raised neither the absence of a NOMAD nor non-compliance with Rule 1 of the AIM Rules: “MJ: Ok. Would you agree with me that you did not raise the issue of the absence of a NOMAD in this letter? Just looking at the letter. NADZRI: Yes, I agree. S/N Ncfrnj/v40Cwy/GF5rhUDg MJ: Ok. And you’d also agree with me that in this letter you had not raised the so-called non-compliance with Rule 1 of the AIM Rules? NADZRI: I agree.” [119] PW4 further confirmed, when referred to MDV’s letter of 15.5.2018, that the assertion that the NOMAD Report had not been furnished to MDV was advanced publicly for the first time in that letter: “MJ: That is a fact that you are asserting. Now, what I’m asking you, En Nizam, is would you agree that this was the first time on the 15th of May that MDV has taken the position that the NOMAD report has not been furnished to them. NADZRI: That is correct.” [120] In his witness statement, however, PW4 explained the rationale underlying Item E: “the proposed settlement was subject to receipt of a NOMAD report to facilitate our due diligence processes. PTSB clearly would not be able to furnish the NOMAD report as they were unable to secure a replacement NOMAD” [Witness Statement of PW4, Q&A 27, page 16]. [121] PW2 (Rozita), MDV’s Vice President (Legal and Secretarial), confirmed in cross-examination that GNC’s S/N Ncfrnj/v40Cwy/GF5rhUDg non-compliance with the NOMAD requirement under Rule 1 of the AIM Rules was a matter raised for the first time in MDV’s letter of 15.5.2018: “LK: …So it’s raised for the first time on the 15th of May. The retention of the NOMAD at all times and GNC failed to comply with the rule was raised for the first time in this letter. There’s only two letters issued, Pn Rozita, 13th of April and 15th of May. This was the first time it was raised; it was not raised in the 13th of April letter. ROZITA: Not the words, yes; the words is different from— LK: Yes, nothing to do with the retention of a NOMAD at all times, correct, Pn Rozita? ROZITA: That’s what it’s written here. LK: So it’s raised for the first time, you agree? ROZITA: Yes.” [122] The Suit 300 Defendants’ own witnesses gave evidence on the nature of Item E and its practical implications. DW2 (Akma), PTSB’s director, accepted in cross-examination that, although PTSB had proposed in its 2nd Letter that Item E be amended to “To be provided immediately upon completion,” MDV had rejected that formulation and had insisted upon the original language in the 4th Letter: S/N Ncfrnj/v40Cwy/GF5rhUDg “KK: And that was suggested by GNC, but that was not agreed upon by MDV because they insisted on going back to the original words, which is “Receipt by MDV of the report from the NOMAD for the proposed RTO.” So that was the entire term. The condition that was imposed by MDV, you agree? AKMA: Sure. Yes.” [123] DW3 (Sushil), a director of both PTSB and GNC, accepted in cross-examination that Item E, however characterised, necessarily contemplated the continued appointment of a NOMAD: “KK: Can I refer to Condition E, that one of the things that MDV had added as a condition was that a report be prepared by the nominated advisor for the proposed RTO? SUSHIL: Well, I wouldn’t say a report is a wrong word, because I believe I spoke to them—not I believe, I know—that I spoke to the management of MDV on this and we replied via one of my letters. When they— what they are talking about a report here, and MDV is very clear of this as you can see, bringing it up forward—is that this was meant to be the admission document and the NOMAD declaration. KK: Correct, correct, Mr Sushil. It’s the NOMAD declaration and the admission documents. The NOMAD declaration is basically that they have perused the admission documents. S/N Ncfrnj/v40Cwy/GF5rhUDg SUSHIL: Correct. KK: And that to confirm to AIM that it was in order, it was in compliance with all the rules of AIM. SUSHIL: That’s right. KK: Correct? SUSHIL: That probably would have been the last condition, presumed that would have been provided to MDV, I would say. KK: Correct, but you would agree that it contemplated that there’s a NOMAD in place? SUSHIL: Yes.” [124] The nature and timing of the NOMAD Report were the subject of expert evidence on both sides. Mr Hooper, a partner at Trowers & Hamlins LLP (London) with extensive experience in AIM listings, MDV’s expert witness who addressed the matter at paragraph 3.10 of his expert report [B7, page 23]: “For completeness, we note that it had been contemplated that Panmure would provide a report addressed to MDV in respect of the Proposed Acquisition (as referenced in correspondence between MDV and PTSB dated 22 December 2017, 9 January 2018, 19 February 2018, 26 February 2018 and 27 February 2018). It is not clear from that S/N Ncfrnj/v40Cwy/GF5rhUDg correspondence what the report was expected to contain, but we understand from MDV that the intention was for the report to provide comfort that the GNC shares to be issued to MDV (in exchange for its release of debts owed to it by GNC) would be shares of the enlarged GNC group (following the Proposed Acquisition) and that such shares would be admitted to trading on AIM (as opposed to shares in a company not admitted to trading on AIM). The requirement for such a report adds importance to the role of the nominated adviser in these circumstances because without the report, the proposed settlement terms would not be capable of being satisfied.” [125] Under cross-examination, Mr Hooper accepted that the AIM Rules for Nominated Advisers do not in terms require a NOMAD to produce a “report”: the formal instrument prescribed under Rule 5 of the AIM Rules for Companies is the NOMAD’s declaration accompanying the admission document: “MT: Now my first question to you, Mr Hooper, is: would you agree with me that it is not a requirement under the rules for a Nominated Adviser to submit a report to the exchange? EDWARD: I think that’s right; they have to submit their Nominated Adviser declaration that, as we have established, we don’t know whether a report is so. There’s nothing in the AIM Rules that I’m aware of—” S/N Ncfrnj/v40Cwy/GF5rhUDg [126] Mr George Bompas QC, the Suit 300 Defendants’ expert witness, explained the nature and content of the NOMAD Declaration at paragraph 38 of his expert report [B7, page 303]: “To be clear, the Nomad Declaration is the document which was required to be provided by the applicant’s (GNC’s) nomad, and was to have accompanied the admission document from GNC for the admission to trading of its existing and newly issued shares for acquiring CG TekBuild, whether the matter were proceeding by way of an RTO with GNC having continued as a AIM Company until the implementation of the RTO, or whether the matter were proceeding as an IPO following the delisting of GNC’s shares on 19 March 2018. The delisting had no adverse impact, so far as this went.” [127] Mr Bompas confirmed in cross-examination, when referred to Rule 14 of the AIM Rules for Companies and the process for shareholder approval of an RTO, that in an RTO exercise the admission document and the NOMAD Declaration would be prepared in advance of the general meeting held to approve the RTO: “KK: Now, can I then now go, would you agree with me that in the RTO exercise the admission document and the NOMAD declaration would have been prepared in advance of the general meeting being held to approve the RTO? S/N Ncfrnj/v40Cwy/GF5rhUDg BOMPAS: Correct.” [128] The Suit 300 Defendants have submitted in reply that the cross-examination of Mr Bompas on this point was conducted in the context of the Rule 14 process for shareholder approval and that the NOMAD Declaration under Rule 5 is only formally completed and submitted to the Exchange at the point of admission, that is, three business days before the expected date of admission. This is an argument to which I return in the findings below. [129] Having noted the Suit 300 Defendants’ point on the chronology of events in the raising of the NOMAD Report issue, I nonetheless accept MDV’s position on the substance for the following reasons. [130] First, the primary question is one of contractual construction. The agreed language of Item E, as set out in the 4th Letter and maintained by MDV through its 6th Letter, was “Receipt by MDV of the report from the Nominated Advisor for the proposed RTO.” This formulation was MDV’s own and was specifically retained after MDV rejected PTSB’s proposed amendment of “To (be) provided immediately upon completion” in the 2nd Letter of 9.1.2018. DW2 accepted in cross-examination that MDV had insisted upon the original words and that the Suit 300 Defendants had agreed to that term. The contractual term must therefore be construed in its agreed form. S/N Ncfrnj/v40Cwy/GF5rhUDg [131] The expression “receipt by MDV of the report from the Nominated Advisor for the proposed RTO” is forward-looking in character: it contemplates delivery of the NOMAD Report or Declaration to MDV as part of the settlement arrangement. It is not, on its terms, confined to delivery at the moment of completion. The Suit 300 Defendants’ argument that the NOMAD Declaration under Rule 5 is technically submitted to the Exchange only at the point of admission is a point about the mechanics of regulatory filing; it does not answer the separate contractual question of when the parties agreed the relevant document was to be provided to MDV. [132] Indeed, as Mr Bompas himself confirmed in cross-examination, the admission document and the NOMAD Declaration would be prepared in advance of the general meeting held to approve the RTO. This is consistent with MDV’s interpretation that receipt of the NOMAD Report was a condition to be satisfied in the course of progressing the settlement, not merely a ministerial step coinciding with the moment of completion. [133] Second, once Panmure had resigned as GNC’s NOMAD with effect from 16.2.2018 and no replacement NOMAD had been appointed, it was not possible for GNC to procure any NOMAD Declaration in connection with the proposed RTO. Under Rule 1 of the AIM Rules for Companies, an AIM company is required to retain a NOMAD at all times. Under Rule 5, an admission document cannot be submitted to the S/N Ncfrnj/v40Cwy/GF5rhUDg Exchange without the accompanying NOMAD Declaration. Absent a NOMAD, neither document could be produced. The condition in Item E was therefore incapable of fulfilment from 16.2.2018 onwards. The position is squarely within the principle stated by the Federal Court in Dato’ Azizan bin Abd Rahman & Ors v Concrete Parade Sdn Bhd & Ors [2024] 3 MLJ 223, where the court held at [46]: “It is not legally tenable to construe conditions precedent as being anything other than what they state, and their actual effect. A condition precedent requires that certain matters be fulfilled before the proposed transaction can proceed further. If that condition is not met, it follows that the transaction cannot proceed further. It is, simply put, a ‘subject to’ requirement, failing which the proposed merger or transaction ends.” [134] Third, the Suit 300 Defendants’ argument that Item E was not a condition precedent to execution of the settlement agreement, founded on PW4’s concession that Clauses A(i) and A(ii) were the conditions to be fulfilled prior to execution, does not assist them. That concession goes to the temporal sequencing of the conditions, not to whether Item E imposed a substantive obligation at all. The Proposal, including Item E, was conditional in its entirety. An inability to fulfil Item E at any stage rendered the settlement, as a whole, incapable of performance. S/N Ncfrnj/v40Cwy/GF5rhUDg [135] Fourth, the fact that MDV did not specifically invoke Item E in its 13.4.2018 letter does not preclude MDV from relying on the non-fulfilment of that condition as a further and independent basis for its position that the Proposal had lapsed. The underlying cause of both the non-fulfilment of Item E and the Delisting is one and the same: GNC’s failure to retain or appoint a replacement NOMAD in compliance with Rule 1 of the AIM Rules. The two grounds are accordingly legally and factually connected. MDV was not required to enumerate in its withdrawal letter every legal consequence flowing from a single underlying regulatory failure. [136] Nor does the Suit 300 Defendants’ reliance on MDV’s letter of 15.5.2018, in which MDV referred to the NOMAD document as one “to be provided immediately upon completion”, determine the contractual question. That letter was written after the dispute had crystallised, in the context of a solicitor’s narrative of MDV’s position. It cannot override the objective construction of the contractual term agreed in the settlement correspondence, nor the contemporaneous rejection of precisely that “upon completion” formulation in the exchange of letters. [137] I accordingly accept Mr Hooper’s opinion that the NOMAD Report was required to be provided to MDV in advance of the completion of the RTO, and not solely at or upon completion. The 4th Letter’s reference to “receipt by MDV of the report from the Nominated Advisor for the proposed S/N Ncfrnj/v40Cwy/GF5rhUDg RTO” is forward-looking in character and is not limited in its timing to the moment of completion. The condition in Item E was incapable of being fulfilled from 16.2.2018 onwards, and this constitutes a further independent basis, in addition to the Delisting, upon which the Proposal had lapsed by the time of MDV’s letter of 13.4.2018. Whether the Suit 300 Defendants Were Prevented from Fulfilling the Conditions Precedent [138] The Suit 300 Defendants submit, in the alternative, that even if the conditions precedent had not been fulfilled, MDV by its own conduct prevented their fulfilment and cannot therefore rely on their non-fulfilment to deny the existence of a binding compromise. The legal foundation of this submission rests on the principle that a party cannot benefit from its own wrong and, in particular, cannot rely on the non-performance of a condition precedent if it has itself prevented performance of that condition. In support, they cite the Court of Appeal of England and Wales in King Crude Carriers SA & Ors v Ridgebury November LLC & Ors [2025] KB 311 (Court of Appeal, England and Wales), which reaffirmed the principle drawn from Panamena Europea Navigacion (Cia Lda) v Frederick Leyland & Co Ltd [1947] AC 42 (House of Lords, per Lord Thankerton), stated as follows: “It is and must be conceded that if a party desires to rely on the non performance of a condition precedent, S/N Ncfrnj/v40Cwy/GF5rhUDg he must do nothing to prevent the condition from being performed, and if there is anything that must be done by him to render possible the performance of the condition, a failure by him to do what is required disentitles him from insisting on performance of the condition.” [139] The Suit 300 Defendants further rely on Cipta Cermat Sdn Bhd v Perbandaran Kemajuan Negeri Kedah [2007] 1 CLJ 498 (Court of Appeal), where the court held that “it is settled law that a promisee is under a duty to cooperate with the promisor in ensuring that the promisor’s obligation is duly carried out,” drawing upon Lord Blackburn’s formulation in Mackay v Dick [1881] 6 App Cas 251. Their specific factual contention is directed at conditions precedent A(i) and A(ii) of the 4th Letter dated 19.2.2018, which required, respectively, the execution and delivery of letters of guarantee and indemnity by the Personal Guarantors and the pledge by those guarantors of their shares in GNC in favour of MDV as security. [140] The Suit 300 Defendants contend that these conditions could only be fulfilled by them if MDV first prepared and delivered the requisite security documents to them for execution, that responsibility having been acknowledged to rest with MDV’s external solicitors, Messrs Lee Hishammuddin Allen & Gledhill. They further contend that MDV, having never delivered those security documents to them prior to its withdrawal on 13.4.2018, cannot now invoke the non-fulfilment of those conditions as a basis for S/N Ncfrnj/v40Cwy/GF5rhUDg denying the existence of a binding compromise. In support of the evidentiary foundation of this contention, the Suit 300 Defendants rely on the following exchange in the cross-examination of PW2 (Rozita): “LK: So for purposes of these documents 1 and 2, these documents were supposed to be rendered— prepared by MDV, rendered by MDV to Platinum for their execution. Correct? ROZITA: Yes. LK: And were these documents normally prepared by the legal department or the business department? ROZITA: The team. After that we will get our lawyers to prepare the security documents. LK: You mean the external solicitors? ROZITA: Correct.” [141] The Suit 300 Defendants further rely on the admission of PW1 (Nizam Ishak) in cross-examination that, as at 28.3.2018, when he wrote to DW3 (Sushil) seeking details for the pledge of shares, he was “doing what was necessary towards completing the exercise” and that Sushil had at no point indicated that any member of the Platinum Group was unwilling to provide the pledge of shares. In the Suit 300 Defendants’ submission, these admissions demonstrate a pattern of conduct by MDV that constituted an effective S/N Ncfrnj/v40Cwy/GF5rhUDg hindrance to the fulfilment of conditions A(i) and A(ii), thereby disentitling MDV from relying on the non-fulfilment of those conditions. [142] In examining the Suit 300 Defendants’ contention, it is necessary to consider the chronology of events and the full evidentiary context with some care. It is not in dispute that, as at 27.3.2018, when MDV’s external solicitors Messrs Lee Hishammuddin Allen & Gledhill forwarded to MDV a draft settlement agreement, that draft was accompanied by the security documents, including the draft letters of guarantee and indemnity and the pledge of shares documents, prepared for the Suit 300 Defendants’ execution. PW2 (Rozita) confirmed this in cross-examination: “LK: Ok, so on the 27th, when the draft settlement agreement was forwarded to you, you also had the documents pertaining to the letters of guarantee and indemnity and the pledge of shares by, forwarded to you by Messrs Lee Hishammuddin. ROZITA: Yes.” [143] It is also common ground that, on 27.3.2018, MDV became aware for the first time of the Delisting, when Messrs Lee Hishammuddin brought the 4th Announcement of 16.3.2018 to MDV’s attention concurrently with forwarding the draft settlement documents. It is further not in dispute that on 28.3.2018, PW1 (Nizam Ishak) sent an email to DW3 (Sushil) seeking an urgent update on three matters: the S/N Ncfrnj/v40Cwy/GF5rhUDg details of the account where the existing shares were deposited for the pledge of shares, the clearing system to be used for the allotment of new shares in GNC to MDV, and the form in which those shares were to be given. DW3 (Sushil) responded on 29.3.2018, providing answers to those queries and requesting a copy of the pledge documents for Platinum’s review. Thereafter, by 3.4.2018, DW2 (Akma) followed up with PW1 (Nizam Ishak) noting that the settlement agreement had still not been received and requesting an update on its status, to which PW1 did not respond. [144] Against this factual backdrop, the Suit 300 Defendants’ contention must fail for the following reasons. First, the evidence establishes that, by 27.3.2018, MDV had already completed the preparation of the security documents as part of the draft settlement suite. That the documents were not formally delivered to the Suit 300 Defendants for execution prior to 13.4.2018 is attributable not to any deliberate or anterior omission on MDV’s part, but to the intervening events that followed MDV’s discovery of the Delisting on 27.3.2018 and the consequent uncertainty it introduced. Second, the principle in King Crude Carriers and Panamena Europea Navigacion requires a positive act or omission by the party seeking to invoke the conditions that prevents the performance of those conditions. A mere delay in the delivery of draft documents, in circumstances where the transactional basis was already under strain by reason of the Delisting, does not, on any proper analysis, constitute S/N Ncfrnj/v40Cwy/GF5rhUDg the kind of positive obstruction that the prevention principle requires. [145] Third, the Suit 300 Defendants’ own evidence on conditions A(i) and A(ii) demonstrates not an inability but a continuing willingness to proceed: DW3 (Sushil Singh) was actively requesting the pledge documents for review as late as 29.3.2018, and DW2 (Akma) was following up on the settlement agreement as late as 3.4.2018. This conduct is inconsistent with any claim that the Suit 300 Defendants were unable to fulfil those conditions by reason of MDV’s failure to provide the requisite documents. What prevented execution was not MDV’s omission to deliver documents, but the collapse of the commercial foundation of the transaction brought about by the Delisting on 19.3.2018, an event that was, in any event, caused by GNC’s own failure to comply with Rule 1 of the AIM Rules. [146] I do not accept the Suit 300 Defendants’ alternative submission on prevented fulfilment. The principle invoked by the Suit 300 Defendants has no application on the facts of this case, and their submission is rejected for the following reasons. First, conditions A(i) and A(ii) required positive acts by the Suit 300 Defendants, namely the execution and delivery of guarantee instruments and the pledge of shares held by the Personal Guarantors in GNC. MDV’s role, at most, was to prepare and deliver the security documents to the Suit 300 Defendants for their execution. As the evidence shows, those documents had been S/N Ncfrnj/v40Cwy/GF5rhUDg prepared and were in MDV’s possession by 27.3.2018. The threshold of “prevention”, namely affirmatively obstructing the performance of a condition, was not crossed. At no stage did any of the Suit 300 Defendants communicate to MDV that they were unable to proceed with execution by reason of MDV’s failure to deliver the documents; on the contrary, the evidence of DW3 (Sushil) shows the Platinum Group was actively seeking to advance matters during the same period. [147] Second, conditions D and E required a positive act by the Suit 300 Defendants themselves, wholly independent of any conduct by MDV. While Item D required MDV’s receipt of a satisfactory legal opinion on the debt-to-equity conversion and regulatory compliances, an item that MDV was to procure from its own solicitors, Item E required MDV’s receipt of the NOMAD Report, an obligation on PTSB to procure. Neither of those conditions was capable of being fulfilled after the resignation of Panmure as GNC’s nominated adviser with effect from 16.2.2018 and the consequent Delisting on 19.3.2018. As PW5 (Edward Hooper) confirmed in cross-examination, GNC’s failure to secure a replacement nominated adviser within one month of Panmure’s resignation meant that its shares had to be cancelled from AIM trading pursuant to Rule 1, and that outcome was not a matter of choice for the company. No act or omission on MDV’s part caused or contributed to the non-fulfilment of conditions D or E. S/N Ncfrnj/v40Cwy/GF5rhUDg [148] Third, the prevention principle cannot be pressed into service by a party whose own conduct, namely GNC’s failure to retain a replacement NOMAD in breach of Rule 1 of the AIM Rules, directly occasioned the non-fulfilment of the very condition it seeks to invoke. As the Suit 300 Defendants’ own expert DW1 (George Bompas QC) acknowledged in cross-examination, down to the time when the company ceased to be an AIM company, there was only one proposal and it would have been carried through as an RTO within Rule 14. It was GNC’s regulatory non-compliance that caused the Delisting, and the Delisting rendered the NOMAD Report condition in Item E incapable of being performed. MDV cannot be said to have prevented the fulfilment of a condition that was rendered impossible of performance by the Suit 300 Defendants’ own breach of their regulatory obligations. The withdrawal by MDV on 13.4.2018 was made expressly on the ground that the Proposal had already become unviable as a result of the Delisting, a finding I have accepted as correct for the reasons set out in paragraphs 66 to 92. That withdrawal was itself a consequence, not a cause, of the non-fulfilment of the conditions precedent. The Suit 300 Defendants’ alternative submission on prevented fulfilment is accordingly rejected. S/N Ncfrnj/v40Cwy/GF5rhUDg Guarantor Liability: Whether GNC and the Personal Guarantors Remain Liable [149] MDV submits that the Corporate Guarantee dated 2.8.2017 and the Personal Guarantee dated 2.8.2017 remain in full force and effect. Since no binding compromise was concluded between MDV and PTSB, the original instruments of liability are wholly unaffected. MDV contends that GNC, as corporate guarantor under the Corporate Guarantee, and Jespal, Sushil, and Anbananthan, as personal guarantors under the Personal Guarantee, are each unconditionally, jointly, and severally liable for the Outstanding Sum. MDV relies upon the continuing and unconditional nature of those obligations, having regard in particular to Clause 4 (Continuing Security) and Clause 5 (Unconditionality of Guarantee and Indemnity) of the Personal Guarantee and the corresponding provisions of the Corporate Guarantee, which together operate to maintain the guarantors’ liabilities until the whole of the Outstanding Sum has been recovered by MDV. [150] The Suit 300 Defendants advance a conditional defence on guarantor liability, premised on the prior establishment of a binding compromise. If a binding compromise was concluded, the Suit 300 Defendants submit that GNC and the Personal Guarantors are discharged from liability on either of two alternative grounds. The first ground is that it was a term of the alleged compromise that upon the completion of the RTO Exercise and MDV’s receipt of listed S/N Ncfrnj/v40Cwy/GF5rhUDg and freely tradeable shares in GNC, the guarantee obligations of GNC and the Personal Guarantors would be extinguished. The Suit 300 Defendants rely in this respect on PTSB’s 2nd Letter dated 9.1.2018, in which PTSB stated: “the guarantors are agreeable to extend their guarantees up to the completion of the exercise.” [151] The second ground is that, as a matter of law, the crystallisation of a valid compromise operates to extinguish the prior contractual obligations of all parties to the original instruments, including guarantee obligations. The Suit 300 Defendants further characterise their position not as one of “discharge” in the technical sense but of “supersession”: on their case, the obligations of GNC and the Personal Guarantors have been superseded by the Settlement Agreement and are now confined to the four corners of that agreement. In support, the Suit 300 Defendants rely on Samanda Holdings Berhad v Sakullah Holdings Sdn Bhd & Ors [2006] 5 CLJ 459 (High Court), Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2018] MLJU 1650 (High Court), and L Manimuthu and Others v L Shanmuganathan [2016] SGHC 186 (High Court, Singapore). [152] MDV submits in the alternative that even if a binding compromise had been reached, GNC and the Personal Guarantors would not have been discharged or superseded. MDV advances the following propositions in support. First, the six letters said to constitute the compromise were S/N Ncfrnj/v40Cwy/GF5rhUDg exchanged between MDV and PTSB only; GNC and the Personal Guarantors were not parties to that correspondence and gave no formal consent to any compromise or to any variation or release of their independent obligations. Second, there was no express release or discharge of the independent guarantee obligations of GNC or of the Personal Guarantors at any material time. Third, and critically, both the Corporate Guarantee and the Personal Guarantee contain express clauses providing in terms that the liability of the guarantors shall not be discharged, affected, or impaired by any arrangement, settlement, compromise, or dealing with PTSB or with any other person, provisions which preclude the operation of the principle upon which the Suit 300 Defendants rely. Fourth, the statement in PTSB’s 2nd Letter regarding the guarantors being “agreeable to extend their guarantees up to the completion of the exercise” is, on its natural and ordinary meaning, language of continuation and not of discharge. [153] The court has already found that no binding compromise was concluded between MDV and PTSB. Therefore, the obligations of GNC under the Corporate Guarantee and of the Personal Guarantors under the Personal Guarantee are entirely unaffected. The Corporate Guarantee and the Personal Guarantee are each independent instruments constituting separate and continuing obligations, collateral to and independent of the repayment obligations of PTSB as principal borrower under the Restructured Facility. The S/N Ncfrnj/v40Cwy/GF5rhUDg Suit 300 Defendants have not raised any defence to liability under those instruments that is independent of the compromise defence. Having failed on the compromise defence, there is no surviving basis upon which liability under the Corporate Guarantee or the Personal Guarantee can be resisted. [154] In any event, even on the alternative hypothesis that a binding compromise had been concluded between MDV and PTSB, I am satisfied that GNC and the Personal Guarantors would not have been discharged or superseded. I address four distinct reasons. The first is that the six letters constituting the alleged compromise were exchanged exclusively between MDV and PTSB. That correspondence, as a matter of contract, bound only those two parties. GNC and the Personal Guarantors were not parties to that correspondence. There is no evidence that they signed, acceded to, or were otherwise formally bound by any compromise arising from the exchange of letters. [155] The Suit 300 Defendants seek to draw support from PTSB’s statement in the 2nd Letter dated 9.1.2018 that “the guarantors are agreeable to extend their guarantees up to the completion of the exercise.” That statement, however, plainly addresses the guarantors’ continuing obligations; it is language of extension and continuation of an existing liability, not of consent to an immediate discharge or supersession of the guarantors’ independent obligations. On no reasonable construction does that language amount S/N Ncfrnj/v40Cwy/GF5rhUDg to a release of GNC’s obligations under the Corporate Guarantee or of the Personal Guarantors’ obligations under the Personal Guarantee. The separate and independent guarantee obligations of those parties required their own formal agreement to any variation or discharge, and none was given. [156] The second reason is that both the Corporate Guarantee and the Personal Guarantee contain express contractual provisions which preclude any discharge or impairment of the guarantors’ liabilities by reason of any arrangement, compromise, or dealing made with PTSB. Clause 5 of the Personal Guarantee provides, in material terms, that the obligations and liabilities of the Guarantors thereunder shall not be discharged or affected by, amongst other things, “the making or effecting of any compromise, composition, arrangement or other dealing with the Customer or the Guarantor(s) or any or all of the other Security Parties or any other surety, guarantor or other person.” Clause 5 of the Corporate Guarantee is in materially identical terms. [157] These clauses were expressly incorporated into both instruments to protect MDV against precisely the argument that is now advanced by the Suit 300 Defendants. The courts have consistently upheld the effect of such provisions in the context of guarantee instruments. In CJ Century Technology Sdn Bhd v Axisjaya Sdn Bhd & Anor [2020] MLJU 2086 (High Court), the court held at paragraphs 63– 64: S/N Ncfrnj/v40Cwy/GF5rhUDg “[63] Not only that, clause 2 of the Guarantee, when read with clause 5 of the same Guarantee (which provides that ‘You shall be at liberty without discharging us from liability to grant time or any other indulgence to the Customer in respect of credit and/or goods and services supplied to the Customer and to accept payment from the Customer’) makes it plain that until the whole debt is paid, and the Plaintiff is at liberty to grant time or other indulgence to the 1st Defendant, the 2nd Defendant is not discharged. In this case, the amount outstanding by the 1st Defendant guaranteed by the 2nd Defendant was payable by the 2nd Defendant simply upon a written demand being made by the Plaintiff. [64] As such, the 2nd settlement proposal in my view does not alter the fact that the outstanding sum, owed by the 1st Defendant is payable by the 2nd Defendant upon a written demand being made as stated earlier.” [158] The Court of Appeal in Bank Pembangunan Malaysia Berhad v Ketheeswaran a/l M Kanagaratnam [2022] 5 MLJ 393 affirmed the same principle at paragraphs 45–47: “[45] It is clear that the guarantee which the parties have entered into was executed with the intention of protecting the bank against the non payment of the loans given to the borrower, ABN. The terms and conditions in the guarantee must be given a strict interpretation of what the parties have intended. S/N Ncfrnj/v40Cwy/GF5rhUDg [46] The respondent had given an unconditional guarantee, as the principal obligor/debtor, to pay the bank on demand upon the happening of the ‘event of default’. As an ‘event of default’ has occurred under the facility and the sum of RM236,796,198.64 is due and owing by the borrower to the bank, the bank is entitled to claim for this sum from the respondent under the terms of the guarantee. [47] The respondent’s liability under the guarantee is independent of the facility agreement and therefore any claims that ABN may have in Suit BA-22NCC-23- 03 of 2021 against the bank does not discharge the respondent from his obligation to pay.” [159] These authorities confirm the settled position that a guarantor’s obligation is independent of the principal debtor’s liability and is not discharged by any settlement or compromise with the principal debtor, particularly where the guarantee instrument itself contains an express term to that effect. [160] The third reason is that the authorities relied upon by the Suit 300 Defendants do not support the proposition that a bilateral compromise between MDV and PTSB operates automatically to extinguish or supersede the independent obligations of GNC and the Personal Guarantors as third-party guarantors. In Samanda Holdings Berhad v Sakullah Holdings Sdn Bhd & Ors (supra), the court held at paragraph 36: S/N Ncfrnj/v40Cwy/GF5rhUDg “By reason of the deed of settlement dated 18 November 1993, the plaintiff’s rights were confined within the four walls of the said deed of settlement. The plaintiff can only seek to assert any claims under the deed of settlement dated 18 November 1993...The plaintiff was estopped from alleging those rights, if any, under the deed of settlement dated 18 November 1993 in the plaintiff’s reply to the defence of the 1st, 3rd, 4th and 5th defendants.” [161] In Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors (supra), the court stated at paragraphs 67–68: “It is trite law that the effect of settlement agreement extinguishes the earlier agreement and constitutes a fresh agreement between parties. Therefore, the terms of the earlier agreement are no longer valid and enforceable, even when the settlement agreement was subsequently breached or abandoned.” [162] In L Manimuthu and Others v L Shanmuganathan (supra), the court held at paragraph 13: “The very purpose and effect of a compromise agreement is to extinguish all prior disputes, functioning as a complete settlement of differences between parties.” [163] In each of these cases, the party whose rights and obligations were held to be extinguished or confined was itself a party to the compromise or deed of settlement in S/N Ncfrnj/v40Cwy/GF5rhUDg question. None of those decisions supports the broader proposition that a compromise concluded between two parties automatically extinguishes the independent obligations of a third party who was not a party to the compromise, who gave no consent to the terms of that compromise, and whose obligation instrument contains express contractual provisions precluding such a consequence. The Suit 300 Defendants’ reliance on those cases is accordingly misplaced. [164] The fourth and final reason is that the Suit 300 Defendants’ own case contains an internal inconsistency that is fatal to the discharge argument. They rely, as part of the alleged compromise terms, on PTSB’s statement in the 2nd Letter dated 9.1.2018 that “the guarantors are agreeable to extend their guarantees up to the completion of the exercise.” The Suit 300 Defendants contend that this language was one of the operative terms of the compromise and that it contemplated an eventual discharge of the guarantors’ obligations upon the completion of the RTO Exercise. [165] The necessary implication of this language, taken on the Suit 300 Defendants’ own construction, is that the guarantee obligations were to remain in force and to continue to subsist until the completion of the RTO Exercise. There was no completion of the RTO Exercise. On the Suit 300 Defendants’ own case, therefore, the condition upon which any discharge or supersession of the guarantors’ obligations was said to depend had never been S/N Ncfrnj/v40Cwy/GF5rhUDg fulfilled at the time they assert those obligations were extinguished. [166] The Personal Guarantors cannot simultaneously contend that the alleged compromise discharged or superseded their obligations at the moment of its conclusion on 27.2.2018, when the very terms of that compromise, as pleaded and argued by the Suit 300 Defendants themselves, required those obligations to remain in force until the completion of an exercise that never took place. For all these reasons, I find that GNC and the Personal Guarantors remain jointly and severally liable as guarantors for the Outstanding Sum, and their liabilities under the Corporate Guarantee and the Personal Guarantee respectively are not discharged. The Quantum of MDV’s Claim [167] MDV’s entitlement to the Outstanding Sum rested upon a contractual evidentiary framework that independently and cumulatively established the quantum due. Section 16.04 of the Master Facility Agreement provided: “SECTION 16.04: EVIDENCE OF INDEBTEDNESS In any proceedings relating to any of the Security Documents a statement as to any amount due to MDV under any of the Security Documents which is certified as being correct by any officer of MDV, shall in the absence of manifest error or unless otherwise provided in any of the Security Documents, be prima S/N Ncfrnj/v40Cwy/GF5rhUDg facie evidence that such amount is in fact due and payable.” [168] This contractual provision was reinforced by Clause 19 of the Personal Guarantee, which provided that a certificate by MDV as to any sum payable by the Customer or the Guarantors under the Facility or the Master Facility Agreement, “shall be conclusive for the purpose of this Guarantee, save for manifest error.” In reliance upon these provisions, MDV adduced through its witnesses, namely PW1 (Nizam Ishak), PW2 (Rozita), and PW3 (Ng Tse Khim), the Statement of Account as at 31.5.2018, certified by an officer of MDV, evidencing the Outstanding Sum of RM108,772,652.67. The particulars of the Outstanding Sum as verified and set out in the Statement of Account were as follows: outstanding purchase price of RM89,165,894.67; outstanding profit of RM17,532,949.04; and outstanding compensation charges of RM2,073,808.96. The evidence of quantum was supported by the terms of the Restructured Facility instruments, including SLO 13. [169] It is well established that in the absence of fraud or manifest error, a certified statement of account is conclusive evidence of the amount due and owing by the borrower: Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 3 CLJ 544 (Federal Court); Citibank N.A. v Ooi Boon Leong & Ors [1981] 1 MLJ 282 (Federal Court); Bank of Tokyo-Mitsubishi (Malaysia) Bhd v Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 (High Court, Malaya). S/N Ncfrnj/v40Cwy/GF5rhUDg These authorities confirm that where, as here, a facility agreement contains a certification clause, the certified statement furnishes prima facie proof of indebtedness that is not displaced in the absence of a specific allegation and proof of fraud or manifest error. [170] In their Defence, the Suit 300 Defendants raised two objections to the quantum of MDV’s claim. At paragraphs 31.1 and 31.2, they contended that “the Plaintiff has failed to provide a breakdown / certificate on the computation of the Outstanding Profit and the Outstanding Compensation charges that are purportedly due and owing to the Plaintiff” and that “in the absence of such particulars, the Defendants are embarrassed in their pleading.” At paragraph 33, the Suit 300 Defendants further contended that “as the Plaintiff had unilaterally terminated the Facility, the Plaintiff is not entitled to the full profit and/or compensation charges under the Master Facility Agreement and/or the subsequent Supplementary Letters of Offer.” [171] Neither of these pleaded objections was pursued with substance or substantiated by evidence at trial. No allegation of fraud or manifest error was advanced or pleaded against the Statement of Account in respect of any of its three component sums. No independent accounting or financial witness was called by the Suit 300 Defendants to contradict MDV’s computations or to impugn the Statement of Account. The demands issued by MDV’s solicitors, on 30.5.2018 (for the sum of RM108,634,507.73 as at

24.5.2018) and on 25.6.2018 (for the Outstanding Sum of RM108,772,652.67 as at 31.5.2018), were neither challenged at trial nor impugned for alleged fraud or manifest error. [172] The Suit 300 Defendants did not cross-examine MDV’s witnesses in any meaningful way on the specific components of the Outstanding Sum. It is a well-established principle that where a party does not cross-examine a witness on a material point and does not call evidence to contradict that witness, the court is entitled to proceed on the unchallenged evidence of that witness: Browne v Dunn

6 R 67 (House of Lords). As MDV correctly submits, the Suit 300 Defendants did not challenge the demands made by MDV or the Statement of Account for any alleged fraud or manifest error at trial. I am accordingly satisfied that the evidential requirements of Section 16.04 of the Master Facility Agreement and Clause 19 of the Personal Guarantee have been met, and that the Outstanding Sum is proved. [173] I accordingly find and accept that the Outstanding Sum of RM108,772,652.67 as at 31.5.2018 is due and owing by the Suit 300 Defendants to MDV, comprising outstanding purchase price of RM89,165,894.67, outstanding profit of RM17,532,949.04, and outstanding compensation charges of RM2,073,808.96. S/N Ncfrnj/v40Cwy/GF5rhUDg [174] As to the Suit 300 Defendants’ contention at paragraph 33 of the Defence that MDV is not entitled to the full profit and compensation charges by reason of its alleged unilateral termination of the Facility, I reject that contention. MDV’s cancellation of the Restructured Facility by its solicitors’ letter of 30.5.2018 was a direct and contractually founded consequence of PTSB’s default and failure to satisfy its repayment obligations under the Restructured Facility; it does not constitute a unilateral or wrongful termination that would operate to reduce or extinguish the profit and compensation charges contractually due. No binding settlement or compromise having been concluded, the entitlement to profit and compensation charges under the Restructured Facility remained unaffected. [175] Profit at the rate of 8% per annum on the outstanding purchase price of RM91,165,894.67 from 1.6.2018 until full settlement, together with applicable Compensation Charges as prescribed under the Restructured Facility, flows from the terms of the Restructured Facility and is awarded as prayed. The Suit 300 Defendants’ Counterclaim [176] The Suit 300 Defendants’ Counterclaim, as pleaded in paragraphs 36 to 39 of the Defence and Counterclaim dated 30.8.2018, is premised entirely upon the existence of a binding compromise and MDV’s alleged breach thereof by its letter of 13.4.2018. The Counterclaim encompasses two S/N Ncfrnj/v40Cwy/GF5rhUDg heads of loss: first, loss of profits and/or business opportunities arising from MDV’s withdrawal of its consent to the proposed RTO; and second, wasted expenditure alleged to have been unnecessarily incurred in furtherance of the Proposed Acquisition. The wasted expenditure was particularised as special damages totalling RM251,749.00, comprising four items: getting-up costs in relation to the proposed RTO (RM85,000.00); due diligence and preparation for the acquisition and listing exercise (RM120,000.00); costs of corresponding and liaising with professional advisers for the AIM listing (RM15,000.00); and professional fees towards services rendered by legal advisers (RM31,749.00). [177] In their post-trial written submissions, the Suit 300 Defendants confined their Counterclaim exclusively to the claim for wasted expenditure, and MDV correctly treats the head of loss of profits and/or business opportunities and general damages as having been abandoned. MDV’s position, correctly stated, is that any claim for wasted expenditure is contingent upon a prior finding of a concluded compromise and an actionable breach by MDV; in the absence of such a finding, the Counterclaim fails in limine. [178] Since I have found, for all the reasons set out above, that no valid and binding compromise was ever concluded between the parties by reason of the exchange of the six letters or the conduct of the parties, the Counterclaim has S/N Ncfrnj/v40Cwy/GF5rhUDg no legal foundation upon which to stand. There was no actionable breach by MDV, and there is accordingly no basis for any award of damages in favour of the Suit 300 Defendants. The Counterclaim is dismissed on this primary ground. [179] Even if I were wrong on the primary finding and the Counterclaim were to be considered on its merits, I would not have allowed it. Three separate and independently sufficient grounds, each fatal to the Counterclaim, present themselves. First, there is an unresolved election issue. The Suit 300 Defendants’ pleaded Counterclaim claimed both loss of profits and/or business opportunities and wasted expenditure simultaneously. A claimant in breach of contract is not entitled to pursue both heads concurrently: an election must be made between loss of profits on the one hand and wasted expenditure on the other, and a failure to elect renders the claim uncertain. [180] The Court of Appeal in Delpuri-Harl Corp JV Sdn Bhd v Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24 (Court of Appeal) held, in circumstances where the appellant had similarly failed to elect, that: “As the appellant had failed to elect to claim either for loss of profits or for wasted expenditure only, and the claim being bad for uncertainty in the circumstances, we decided to award the sum of RM100,000.00 which sum included the sum of RM70,575.45 assessed by DW1, as nominal damages to the appellant. This is on the basis that this Court recognises S/N Ncfrnj/v40Cwy/GF5rhUDg the fact that the appellant did suffer some loss as a result of the wrongful termination.” Although the Suit 300 Defendants purported at the post-trial stage to confine themselves to wasted expenditure, their pleading as filed asserted both heads simultaneously and no formal amendment was sought or obtained; the latent uncertainty in the pleaded case remains a basis upon which, at most, only nominal damages could be awarded. [181] Second, the Suit 300 Defendants failed to establish by cogent and credible evidence that the claimed expenditure was caused by any breach on MDV’s part. Their primary contention was that their evidence on quantum stood unchallenged at trial and therefore ought to be accepted as proved. That contention is misconceived: the mere absence of detailed cross-examination does not discharge the Suit 300 Defendants’ primary burden of proving their alleged losses on credible evidence as established in Buncho (M) Sdn Bhd v Q-Stationers Sdn Bhd [2010] 7 CLJ 359 (High Court); Conweld Engineering Sdn Bhd & Ors v Goh Swee Boh @ Goh Cheng Kin & Anor [2019] MLJU 1359 (High Court). [182] Third, and fundamentally, the entirety of the claimed expenditure was incurred in furtherance of the Proposed Acquisition, being a transaction conceived, structured, and initiated by PTSB and GNC, and not by MDV. As PW4 (Nizam Nadzri) confirmed in cross-examination: S/N Ncfrnj/v40Cwy/GF5rhUDg “MJ: Sure. And their proposal essentially to you, MDV, was for the debt under their facility to be converted in cash form into listed shares. Correct? NADZRI: That is correct. Our debt will be converted into listed shares.” [183] It was PTSB and GNC that came to MDV with the Proposal; MDV was neither a party to nor had any prior knowledge of the Heads of Agreement executed between GNC and the Coulter Group on 24.11.2017. The specific items of expenditure adduced in evidence through DW2 (Akma), including legal advice from Messrs Bird & Bird (£6,000.00), payment to Modularize Ltd (RM110,400.00), flight allowances, travel allowances, and accommodation and entertainment expenses, were all incurred to pursue an acquisition driven entirely by the Suit 300 Defendants’ own commercial agenda. None of those items can properly be characterised as expenditure incurred at the behest of or attributable to any conduct of MDV. [184] The position is confirmed by the applicable legal principles governing remoteness of damage and causation under Malaysian contract law. Section 74(1) of the Contracts Act 1950 provides: “When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which S/N Ncfrnj/v40Cwy/GF5rhUDg naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” [185] The Federal Court in Toeh Kee Keong v Tambun Mining Co Ltd [1968] 1 MLJ 39, per Azmi CJ, confirmed that section 74(1) is the statutory enunciation of the rule in Hadley v Baxendale (1854) 9 Exch 341 (Exchequer Court, England) and restated the applicable principle in these terms: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” [186] In Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 (High Court), Edgar Joseph Jr J (as he then was) articulated the general principle governing the recoverability of contractual damages in these terms: “When a plaintiff claims damage from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant’s wrong, and also that the damages are not too remote to be S/N Ncfrnj/v40Cwy/GF5rhUDg recoverable. The principle of remoteness of damage is a limiting principle of policy and the principles applicable in contract and tort are not the same.” [187] Applying those principles, the Suit 300 Defendants’ claimed expenditure items fail on both the causation requirement and the remoteness principle. On causation: as I have found, the Proposed Acquisition was at the initiative and behest of PTSB and GNC; the expenses were incurred by the Suit 300 Defendants in furtherance of their own commercial proposal and would have been incurred regardless of MDV’s subsequent position. None of the expenditure items arose from or was caused by any act of [188] On remoteness, even assuming a binding compromise had been concluded by the exchange of the six letters, it was not within the reasonable contemplation of the parties at the time of any such compromise that MDV’s departure from the Proposal, occasioned as I have found by the Delisting attributable to GNC’s own failure to comply with Rule 1 of the AIM Rules, would give rise to liability for expenditure that the Suit 300 Defendants had incurred entirely on their own account and at their own initiative in the months preceding that departure. The claimed wasted expenditure items are not established as losses flowing directly from and caused by any wrongful act of MDV. The Counterclaim is accordingly dismissed. S/N Ncfrnj/v40Cwy/GF5rhUDg SUIT 643 ANALYSIS AND FINDINGS Governing Legal Principles on the Burden and Standard of Proof [189] Before turning to the specific issues in this case, it is appropriate to state the governing principles on the burden and standard of proof. The burden of proving the causes of action in conspiracy by unlawful means and in fraud rests throughout upon the Plaintiff. The standard is proof on a balance of probabilities. In the Federal Court decision of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the court confirmed that the standard of proof for a civil claim in fraud is the civil standard, namely proof on a balance of probabilities, though the inherent improbability of the serious wrongdoing alleged will inform the weight of evidence required to discharge that standard. [190] The consequence of this is that MDV bears the burden of proving each essential element of the tort of conspiracy and each essential element of fraud against each defendant. Should MDV fail to establish any one of the essential elements, the claim must fail. The burden does not shift merely because the court finds certain aspects of a party’s conduct irregular or difficult to explain. S/N Ncfrnj/v40Cwy/GF5rhUDg The Claim in Conspiracy by Unlawful Means The Essential Elements [191] The essential elements of the tort of conspiracy by unlawful means have been authoritatively stated by the Court of Appeal in Renault SA v Inokom Corporation Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394, where the court, citing the formulation of Mohamed Dzaiddin J (as he then was) in Yap JH v Tan Sri Loh Boon Siew & Ors [1991] 3 CLJ 2960, stated: “[33] It is clear that the very first element to be shown must be an agreement between two or more persons for the purpose of injuring Inokom and Quasar. ‘Agreement’ is not limited to a signed and sealed agreement but any informal agreement, including a combination of efforts of the alleged co-conspirators. After that, it has to be shown or at least alleged that acts were done in execution of that agreement which resulted in damage to Inokom and Quasar.” “[34] It is trite law that the agreement to injure must come first (in other words the agreement should have crystallized), before the alleged unlawful acts are done in execution or pursuant to the agreement.” [192] The Court of Appeal in Forest Steel Sdn Bhd v Iconic Gateway Sdn Bhd & Anor and Another Appeal [2020] 7 CLJ 19 confirmed the four-element formulation as follows: S/N Ncfrnj/v40Cwy/GF5rhUDg “[117] In order to make out a case of conspiracy, the plaintiff must establish (1) an agreement between two or more persons, (2) an agreement for the purpose of injuring the plaintiff, and (3) that acts done in execution of that agreement resulted in damage to the plaintiff... (4) Finally, the acts done which resulted in damage must be without justification or excuse.” [193] For unlawful means conspiracy specifically, the Court of Appeal in Tay Keong Kok & Ors v Eastmont Sdn Bhd and another appeal (supra) confirmed that two additional elements apply: first, there must be an intention to injure the plaintiff, though this need not be the sole or predominant purpose; second, there is no necessity for the unlawful means to be independently actionable at the suit of the claimant. [194] The Court of Appeal in Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 1 CLJ 461 further held: “The key ingredients to be proven by the plaintiff in order to make out a prima facie case of tort of conspiracy were: (i) an agreement, combination, understanding or concert between two or more persons; (ii) to commit an act with the intention to injure or cause damage to the plaintiff; (iii) the act was executed and the plaintiff was injured or suffered damages; and (iv) if the act executed was not an unlawful act, then it must also be shown that the intention to cause injury or damage to the plaintiff was the predominant or main purpose.” S/N Ncfrnj/v40Cwy/GF5rhUDg [195] I apply these principles in examining whether MDV has made out each element. Element 1: Agreement [196] MDV’s case was that all eight Defendants entered into an agreement, express or tacit, for the purpose of injuring MDV by way of the 48 washout transactions described above. In support of this element, MDV relied on three broad categories of evidence. First, MDV pointed to the pattern and chronology of the transactions as they appeared across the drawdown documentation and the contemporaneous commercial records over the review period of January 2013 to February 2015. [197] Second, MDV relied on the findings of the FHMH Report, which identified RM87.15 million disbursed to ACSB and RM2.66 million disbursed to AFI, totalling approximately RM92 million in Washout Amounts, as monies that had not been applied to their stipulated purpose under the RC Facility. Third, MDV relied on emails in which PGC had requested refunds or cancellations from ACSB, which MDV submitted were sent shortly after MDV’s disbursements had been received by ACSB. [198] MDV submitted that these matters, taken cumulatively, were sufficient to invite the court to infer the existence of a pre-formed conspiratorial agreement among the eight S/N Ncfrnj/v40Cwy/GF5rhUDg Defendants to injure MDV by the systematic misappropriation of its disbursements. [199] The defendants in Suit 643 contested this element on several distinct grounds. Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa submitted that MDV had adduced no direct evidence of an agreement or combination between all eight Defendants, and that the case against the Approved Suppliers, ACSB and AFI, could not be established by the pattern and chronology of events alone. They pointed to the fact that ACSB and AFI were dealing exclusively with PGC as their contractual counterparty, and that there was not a single document or communication in the evidentiary record establishing that ACSB or AFI were aware of the terms of the RC Facility, or their designation as Approved Suppliers by MDV. [200] ACSB’s position, as set out in its written submissions, was that (a) ACSB would not have been aware of the terms of the RC Facility between MDV and PNC; (b) there was no obligation, in fact or in law, for ACSB to have informed MDV of the cancellation of the sales contracts with PGC; and (c) it was irrelevant whether MDV had financed the purchases, as the payment was deemed to have been made by PGC, and PGC was therefore entitled to cancel those contracts with ACSB refunding the monies to PGC or third parties on PGC’s instructions. ACSB characterised MDV’s entire case on this element as resting upon “suspicions and speculations.” S/N Ncfrnj/v40Cwy/GF5rhUDg [201] AFI similarly denied any knowledge of PNC’s relationship with MDV, the RC Facility, or its designation as an Approved Supplier thereunder, and submitted that MDV had failed to prove any overt acts by AFI in relation to the alleged conspiracy. [202] I accept the defendants’ submissions on this element. The governing legal framework is well established. As the Court of Appeal held in Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals (supra), at paragraph [33]: “‘Agreement’ is not limited to a signed and sealed agreement but any informal agreement, including a combination of efforts of the alleged co-conspirators. After that, it has to be shown or at least alleged that acts were done in execution of that agreement which resulted in damage to Inokom and Quasar.” [203] At paragraph [34] of the same judgment, the Court of Appeal further held: “It is trite law that the agreement to injure must come first (in other words the agreement should have crystallized), before the alleged unlawful acts are done in execution or pursuant to the agreement.” [204] These principles were affirmed by the Court of Appeal in Forest Steel Sdn Bhd v Iconic Gateway Sdn Bhd & Anor and Another Appeal (supra), at paragraph [117], where the court confirmed the four-element formulation and further S/N Ncfrnj/v40Cwy/GF5rhUDg stated, at paragraph [119], that a plaintiff alleging conspiracy must “set forth with clarity and precision the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy.” MDV sought to rely additionally on the principle articulated in Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 MLJ 797 (Court of Appeal), to the effect that: “It is not necessary to show that there was anything in the nature of an express agreement, whether formal or informal. The court looks at the overt acts of the conspiracy and infers from those acts that there was agreement to further the common object of the combination.” [205] I accept this as a correct statement of principle. However, the invocation of Cubic Electronic presupposes a factual matrix from which such an inference can properly be drawn. MDV relied heavily on the pattern and chronology of events to invite the court to draw that inference, but its evidence fell short of the required threshold for the reasons set out below. [206] The position concerning ACSB is addressed first. ACSB’s evidence, as reflected in the testimony of its witnesses and the contemporaneous documentary record, was that its commercial dealings were exclusively with PGC as buyer, and that the contract cancellations were arrangements S/N Ncfrnj/v40Cwy/GF5rhUDg made between itself as seller and PGC as buyer. There is nothing in the evidentiary record to show that ACSB was at any point made aware of the terms of the RC Facility, or its designation as an Approved Supplier by MDV, although ACSB admitted to knowing that MDV was financing the purchases and had disbursed the funds directly into its account. [207] DW4, Martin, the Managing Director of ACSB, gave evidence on this point during cross-examination. When it was put to him that he had been wearing “blinkers” by accepting disbursements from MDV even after contracts had been cancelled, he denied it and stated that the matter was not his business and that he did not think anything was “amiss.” When pressed on whether ACSB’s receipt of funds in respect of cancelled contracts ought to have concerned him, Martin replied, “I am dealing with Platinum. Platinum is a big company”, and that ACSB had no connection with [208] Critically, when cross-examined on the nature of the arrangements between ACSB and the Platinum Group, Martin conceded that the cancellation of the sales contracts between ACSB and PGC, whereby funds disbursed by MDV were returned to PGC or to third parties on PGC’s instructions, less ACSB’s brokerage commission of RM15 per metric tonne, was not a washout in accordance with industry practice, but rather a “private arrangement” between ACSB and the Platinum Group. DW5, Shannon, S/N Ncfrnj/v40Cwy/GF5rhUDg the General Manager of ACSB, similarly confirmed, in respect of the contracts he gave evidence about, that the cancellations did not conform to industry-practice washouts. ACSB acknowledged in its written submissions that while Martin may have admitted the cancellations constituted a private arrangement, “that is not evidence of conspiracy and fraud as pleaded by MDV.” This concession is instructive. What the admission establishes is not a conspiracy directed against MDV, but a bilateral commercial arrangement between ACSB and PGC in which MDV played no communicating role and of which MDV was entirely unaware. [209] It is further notable that, across 38 sales contracts, ACSB retained a total brokerage commission of RM370,000, and Martin acknowledged under cross-examination that ACSB was “always making money” on these cancellations, as its receipts were not dependent upon market price fluctuations. The fact that ACSB received a commission from PGC for facilitating cancellations does not, without more, establish that ACSB was party to a pre-formed agreement with all eight Defendants to injure MDV. The absence of any direct communication between MDV and ACSB concerning the RC Facility or the disbursements is a material lacuna in MDV’s case. If MDV had communicated to ACSB the purpose for which disbursements were being made, and if ACSB had nonetheless agreed to participate in a scheme to divert those funds, that would be a different matter. But on S/N Ncfrnj/v40Cwy/GF5rhUDg the evidence before me, MDV had no direct contractual or communication nexus with ACSB. [210] AFI’s position is even more favourable. The FHMH Report and the evidence at trial confirmed that in the one transaction involving AFI, namely a Purchase Confirmation dated 20.1.2015 for 750 metric tonnes of HVO at RM3,500 per metric tonne, totalling RM2,625,000, AFI had made payment to PGC on 22.1.2015, whereas MDV did not disburse to AFI until 18.2.2015, some 27 days later. AFI retained a commission of RM30,000 from this transaction. [211] As AFI’s counsel pointed out, this chronology is fundamentally inconsistent with AFI having been party to a pre-arranged scheme with PGC to divert MDV’s funds: AFI was out of its own funds for approximately a month before MDV’s disbursement arrived. MDV submitted in reply that the fact of AFI being out-of-pocket for approximately one month was, far from rebutting conspiracy, consistent with the modus operandi of the scheme, in that AFI must have had confidence that PGC would succeed in securing disbursement from MDV, and that such confidence could only have existed if AFI was aware of the drawdown and that reimbursement would follow once the facility monies were released. [212] I am unable to accept this submission. It amounts, at its highest, to a speculative inference built upon a further inference, without any direct evidentiary foundation. The S/N Ncfrnj/v40Cwy/GF5rhUDg chronological evidence, namely AFI making payment 29 days before MDV’s disbursement, is at least as consistent with a commercial explanation as with a conspiratorial one. In the absence of any communication establishing AFI’s awareness of the RC Facility or of MDV’s role as the funding source, the inference that MDV invites does not satisfy the standard of an established combination between all eight Defendants that the authorities require. A party who is genuinely party to a conspiracy to divert another’s funds does not ordinarily place itself out of pocket in order to participate in that conspiracy. [213] More fundamentally, MDV’s reliance on emails in which PGC requested refunds or cancellations from ACSB, arising after contracts were in place and after utilisation notices had been submitted to MDV, does not, without more, establish an antecedent agreement to injure MDV. The Renault formulation is clear: at paragraph [34], the Court of Appeal held that the agreement to injure must crystallise first, before the alleged unlawful acts are done in execution of it. [214] The emails demonstrate that cancellation requests were made by PGC to ACSB at various points, whether before or after MDV’s disbursements had been received by ACSB. They do not demonstrate that the cancellations were agreed upon before utilisation notices were submitted to MDV, nor do they establish that the Approved Suppliers were participants in any pre-formed scheme. S/N Ncfrnj/v40Cwy/GF5rhUDg [215] The chronological sequence of the cancellation requests is entirely consistent with PGC managing its bilateral commercial relationship with ACSB in the ordinary course, and does not evidence the kind of antecedent agreement that the authorities require to be established before a conspiracy can be inferred. [216] The contemporaneous documentary evidence, assessed as a whole, does not rise above suspicion and inference. Even applying the principle in Cubic Electronic that a conspiracy may be inferred from overt acts, the overt acts identified in this case, namely cancellations of contracts between PGC and each Approved Supplier respectively, with refunds flowing to PGC or third parties less commission, are equally consistent with a series of private bilateral arrangements not involving MDV as with a multi-party conspiracy directed against MDV. As the Court of Appeal observed in Renault (supra) at paragraph [39]: “The court cannot draw, from Inokom’s and Quasar’s bare allegation that Renault had made the alleged representation to them, an inference or conclusion that Renault and Tan Chong had conspired in any way in the making of the said representation.” [217] The principle applies with equal force here. The court cannot draw, from the bare fact that PGC transacted with ACSB and AFI and directed disbursements back to itself, an inference that all eight Defendants had conspired in any S/N Ncfrnj/v40Cwy/GF5rhUDg way to injure MDV. A finding of combination requires that the alleged conspirators shared a common object directed at the plaintiff; it is not discharged by establishing that each defendant independently performed acts that caused financial loss to the plaintiff as a consequence of those acts, without establishing the communicative nexus or shared design that gives conspiracy its distinctive character as a tort. Here, MDV has not established that combination. [218] I therefore find that MDV has failed to prove, on a balance of probabilities, the existence of any agreement, express or tacit, between the alleged conspirators to carry out an unlawful scheme to injure MDV. This finding is, in and of itself, fatal to the conspiracy claim. Element 2: Intention to Injure [219] Even if I were wrong in respect of the agreement element, I am not satisfied that MDV has proved the requisite intention to injure. Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa submitted that the transactions were driven by the business needs and operational requirements of the Platinum Group, including working capital requirements and the need to procure feedstocks and finished goods for onward delivery to Shell and SIETCO. [220] They pointed to the FHMH Report’s own findings as evidence of legitimate commercial activity underpinning the Washout Amounts of approximately RM92 million: RM36 S/N Ncfrnj/v40Cwy/GF5rhUDg million was transferred to PNC and PGC and confirmed by FHMH to have been utilised for the working capital requirements of the Platinum Group, and RM50 million was deployed directly with third parties, through ACSB and Sepang Dynamics Sdn. Bhd. as approved suppliers, to acquire primary feedstock and finished goods for onward sales to Shell and SIETCO. [221] The FHMH Report further confirmed, by sighting the relevant documentary trail rather than through a physical sighting of inventory (as site inspections revealed no stock at the material time), the delivery of primary feedstocks and finished goods worth approximately RM50 million to the Platinum Group’s Senawang plant and at related locations including the FIMA Chem and Lereno facilities, with purchase weighing notes confirming delivery from named third-party suppliers including Future Prelude Sdn Bhd, PGEO Bioproducts Sdn Bhd, FGV Biotechnologies Sdn Bhd, and Mewah Oils Sdn Bhd, among others. The FHMH Report recorded: “In order to establish whether RM50 million worth of purchases of PMEs and primary feedstocks were consumed for onwards sales, we analysed the Company’s inventory movement tabulation provided by the management for FY2013 and FY2014. Based on the inventory movement, it appears the purchases of PMEs and primary feedstocks worth RM50 million (rounding up of RM49.95) were eventually consumed for onward sales.” S/N Ncfrnj/v40Cwy/GF5rhUDg [222] Anbananthan, Jespal Singh, Sushil Singh, and Tan Sri Abi Musa further relied on the evidence of DW9 (Anbananthan) to the effect that the Platinum Group was operationally constrained by lead times inherent in the biodiesel production cycle, namely the process of making a drawdown request, receiving primary feedstock, and producing biodiesel taking on average between six and eight weeks, and that customer nomination volumes between zero and 5,000 MT per month created the need to purchase excess feedstock. These are not the hallmarks of a scheme entirely shorn of legitimate commercial purpose. [223] MDV submitted that the defendants must have intended to injure MDV because they knowingly made use of drawdowns for purposes other than those stipulated under the RC Facility. In support of the principle that the intention to injure need not be the sole or predominant purpose, MDV relied on the Court of Appeal in Global Ventures Network Sdn Bhd v Lokman Dato’ Mohd Kamal & Another Appeal [2018] 7 CLJ 1. Anbananthan, Jespal, Sushil and Tan Sri Abi Musa similarly relied on the Court of Appeal in Tay Keong Kok & Ors v Eastmont Sdn Bhd and another appeal (supra), which confirmed that for unlawful means conspiracy, it suffices if injury to the claimant is one of the intended purposes: “As for unlawful means conspiracy, two additional elements must be considered. These are, first, the necessity to show an intention to injure, but not that it S/N Ncfrnj/v40Cwy/GF5rhUDg must be the sole or predominant purpose to do so. Thus, it could just be one of the purposes of the agreement (see Lonrho plc v Fayed [1992] 1 AC 448). Once the use of unlawful means is established, it suffices if the injury to the claimant is one of their intended purposes. The second is that there is no necessity for the unlawful means to be independently actionable at the suit of the claimant.” [224] MDV also relied on Global Ventures Network Sdn Bhd v Lokman Dato’ Mohd Kamal & Another Appeal (supra) for the proposition that where unlawful means are utilised, the plaintiff is not required to prove a predominant intention to injure. However, the governing authorities make equally clear that the intention to injure must be an intention to cause loss to the plaintiff as an end in itself or as a means to an end. The Singapore High Court in The Dolphina [2011] SGHC 273; [2012]1 SLR 992 (High Court of Singapore, Belinda Ang Saw Ean J), at paragraph 279, stated: “It appears that, consistently with the test of intention in the tort of causing loss by unlawful means laid down by the House of Lords in OBG Ltd v Allan [2008] 1 AC 1 (“OBG v Allan”), the conspirators must have intended to cause loss to the plaintiff as an end in itself or as a means to an end...” [225] The evidence before me, considered as a whole, is more consistent with a picture of the Platinum Group using the drawdown mechanism to manage its working capital and S/N Ncfrnj/v40Cwy/GF5rhUDg operational requirements, which caused loss to MDV as a consequence, rather than with a scheme in which the predominant or operative purpose was to cause injury to MDV specifically. [226] I accept MDV’s submission that for unlawful means conspiracy the intention to injure need not be the predominant or sole purpose, as confirmed by the Court of Appeal in Global Ventures (supra). The more fundamental question, however, is whether injury to MDV was at all an intended purpose, whether as an end or as a means to an end. [227] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa’s evidence, supported by the FHMH Report’s own findings that RM86 million of the approximately RM92 million Washout Amounts can be traced to working capital, operational expenditure, and feedstock acquisition activities, is inconsistent with the existence of any design to cause loss to MDV. A party that directs disbursed funds towards the purchase of identifiable raw materials, the delivery of which is verified through a documentary trail at its own plant, and the working capital of an ongoing production business, does not demonstrate the quality of intent required by the authorities. [228] In these circumstances, I accept the submission of Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa that the transactions were predominantly driven by business-based S/N Ncfrnj/v40Cwy/GF5rhUDg decisions within the Platinum Group, including working capital needs and operational continuity, and that injury to MDV, whilst a consequence of those decisions, was not proved to be the intentional object. Element 3: Unlawful Means [229] The parties were in sharp conflict on the element of unlawful means. MDV submitted that the unlawful means consisted of two species of conduct: first, misrepresentations made to MDV through the drawdown documentation in support of each utilisation notice, in transactions which MDV contended were intended from the outset to be cancelled; and second, the diversion of disbursed funds from their contractually stipulated purpose of purchasing primary feedstock for the production of PME and Used Cooking Oil Methyl Ester for onward delivery to Shell and SIETCO. Anbananthan, Jespal Singh, Sushil Singh and Tan Sri Abi Musa submitted that the Master Facility Agreement did not on its face expressly prohibit the cancellation of contracts with Approved Suppliers, and that the washout or circle mechanism was a well-established and standard practice in the palm oil commodities industry. [230] The expert evidence on industry practice is material. DW7, Sandeep Singh, is an arbitrator with Palm Oil Refiners Association of Malaysia (“PORAM”) and was formerly the Vice President, Global Trading and Marketing Unit of Sime Darby Plantation Berhad from around March 2007 to around S/N Ncfrnj/v40Cwy/GF5rhUDg May 2018. He is well-qualified to speak to palm oil industry practice, having served on PORAM’s board and having acted as a PORAM arbitrator since 2009. His expert report, affirmed by affidavit on 21.10.2020, explained the washout or circle mechanism as follows: “A circle or washout is a special system of settlement in commodity supply or trade contracts where goods are, for various commercial reasons, sold back to the seller before the delivery date at mutually agreed price or cost. This system of settlement is a well-established and accepted industry practice in commodity trades such as oil and fats, grains and animal feed.” [231] DW7 further demonstrated that the washout mechanism is expressly codified in standard PORAM contracts, which constitute the recognised trading standards for palm oil trade worldwide, as well as in standard Federation of Oils, Seeds and Fats Associations Ltd (“FOSFA”) contracts. The relevant clause of a standard PORAM contract provides: “Where a Seller repurchases from his Buyer the same goods, a circle or wash-out shall be deemed to have been established. For the purpose of this contract, a contract wash-out or circle shall be deemed to have been established prior to delivery of the product when all parties to the circle are identified and aware of the circle’s existence.” S/N Ncfrnj/v40Cwy/GF5rhUDg [232] The mechanism was further accorded official recognition by the Ministry of Finance of Malaysia by a GST exemption circular in 2016, which excluded contract washouts from goods and services tax on the basis that no physical movement of goods takes place. DW7 additionally referred to several PORAM arbitration awards, including Case No. 8

(1996), Case No. 11, Case No. 18, and Case No. 32, as illustrative instances of the washout principle operating within the industry. [233] MDV advanced two challenges to DW7’s evidence. First, DW7 conceded in cross-examination that he had not examined any of the individual sales contracts or specific washout documentation, and had formed his opinion solely on the basis of a general account provided to him by Anbananthan: “No, I’ve not looked at the document because at that time, it was a discussion to only explain what does, I mean, what I have done also in my report, to explain what exactly wash outs mean in our industry. Based on an explanation on contracts, and the individual documents were not shared.” [234] DW7 further confirmed that his arbitration case examples had “nothing to do” with the specific contracts between the parties herein and that he had “not gone into details at all” in relation to those contracts. S/N Ncfrnj/v40Cwy/GF5rhUDg [235] Second, MDV submitted that the cancellations as actually conducted departed materially from the mechanics of a standard PORAM washout, as defined by DW7 himself, in the following respects: (a) the full purchase price disbursed by MDV was received by the Approved Suppliers rather than merely a settlement of the price difference; (b) there were no reverse transactions for the buyback of primary feedstock; (c) the Approved Suppliers received a fixed commission fee, namely RM15.00 per metric tonne, totalling RM370,000 in the case of ACSB and RM30,000 in the case of AFI, rather than a price difference payment; and (d) DW5, Shannon, General Manager of ACSB, confirmed in his testimony that the cancellations of the contracts with PGC were not washouts as per industry practice or the terms of the PORAM contract. [236] I have given careful consideration to MDV’s arguments. The limitations conceded by DW7, namely his failure to examine the specific contracts and his reliance on Anbananthan’s account, are not without force as criticisms of the weight to be given to his opinion. MDV did not, however, call any expert witness of its own in rebuttal. In the absence of countervailing expert testimony, the court accepts that the washout mechanism is a recognised commercial practice in the palm oil industry. [237] Even assuming, without deciding, that the specific cancellations in this case departed from the precise mechanics of a standard PORAM washout, a point on which S/N Ncfrnj/v40Cwy/GF5rhUDg the evidence was contested, such departure does not of itself constitute “unlawful means” within the meaning of the tort. The question is not whether the transactions conformed to industry practice, but whether unlawful means were employed. Non-compliance with the terms of the RC Facility, or departure from standard PORAM mechanics, does not in and of itself constitute unlawful means for the purposes of this tort. MDV did not establish any such unlawful means beyond the broad allegation of contractual non-compliance. [238] As to MDV’s submission that the unlawful means lay in the false representations contained in the utilisation documents, there is, as I have noted above, no cogent evidence that the cancellations (with the exception of the single AFI transaction) were agreed upon before the utilisation documents were submitted to MDV. The absence of proof of any such prior agreement for the vast majority of the transactions is fatal to MDV’s characterisation of the utilisation documents as knowingly false representations; a representation is not rendered retrospectively false by a subsequent decision to cancel the underlying contract. Accordingly, I find that MDV has not established the element of unlawful means. Element 4: Damage [239] The fourth essential element of the tort of conspiracy by unlawful means is proof of actual damage proximately S/N Ncfrnj/v40Cwy/GF5rhUDg caused by the conspirators’ acts. It is trite law that a plaintiff must demonstrate not merely that a wrong was committed, but that the specific loss in respect of which damages are claimed was caused by that wrong. The High Court in Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd (supra) stated the governing principle: “When a plaintiff claims damages from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant’s wrong, and also that the damages are not too remote to be recoverable.” [240] The requirement that loss be actually caused by the conspirators’ acts was affirmed by the United Kingdom Supreme Court in JSC BTA Bank v Ablyazov (No 14) [2020] AC 727, which observed: “This is true in the obvious sense that a tortious conspiracy, like most other tortious acts, must have caused loss to the claimant, or the cause of action will be incomplete.” [241] The Malaysian High Court applied these principles in Pacific & Orient Insurance Co Bhd v Mohammad Hafizi bin Bahari & Anor [2023] MLJU 875, holding that “....Damages is an essential ingredient of the tort of conspiracy.” The burden of proving actual loss caused by the conspiracy rested throughout on MDV. S/N Ncfrnj/v40Cwy/GF5rhUDg [242] MDV pleaded a loss of RM90,676,143.66, being the aggregate of the monies disbursed to ACSB and AFI in respect of the 48 cancelled Sale Contracts. Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa raised a fundamental objection to MDV’s loss case: that MDV did not, in its post-trial written submissions, present any reasoned argument as to how the pleaded sum of RM90,676,143.66 represented loss caused specifically by the tort of conspiracy, as opposed to the outstanding indebtedness arising from defaults under the RC Facility. This observation was made at the oral clarification hearing by counsel for AFI and was not adequately addressed by MDV in response. [243] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa went further and submitted that MDV’s own witnesses, when cross-examined, treated the pleaded sum as being equivalent in substance to the outstanding amount under the RC Facility. PW9 (Liow Choong Kai) agreed under cross-examination with the suggestion that MDV’s position was that RM90,676,143.66 “is the amount outstanding under the facility”, arising out of the 48 transactions commencing 30.4.2013. PW11 (Liew Kim Yuen) similarly agreed in cross-examination with counsel’s proposition that his understanding was that each drawdown in the schedule “was ultimately not repaid into the facility, hence it went towards the outstanding amount in the facility.” S/N Ncfrnj/v40Cwy/GF5rhUDg [244] These concessions from MDV’s own witnesses materially undermined MDV’s characterisation of the pleaded sum as tortious loss that was distinct from the contractual indebtedness being pursued concurrently in Suit 300. [245] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa submitted further that some of the amounts attributable to the 2013 and 2014 Washout Transactions had already been repaid to MDV through the Project Account, with the consequence that MDV had not suffered a net loss in respect of those particular transactions. PW8 (Vijendran, Portfolio Manager of MDV’s Credit Management Division), when cross-examined on whether MDV had in fact suffered loss on specific transactions given repayments through the Project Account, acknowledged the force of that point: “MT: Ok. So based on what you just said earlier, Mr Vijendran, I’m going to suggest to you that given these payments in 2013 and 14, to some extent, have already been repaid to MDV via the project account, MDV has not suffered a loss of these particular transactions. VIJEN: Yes.” [246] MDV did not adequately meet this point in its submissions. No disaggregated analysis was presented to identify which specific transactions had been partially or wholly repaid through the Project Account, nor was any adjusted figure advanced to reflect net tortious loss after accounting for S/N Ncfrnj/v40Cwy/GF5rhUDg such repayments. The pleaded quantum of RM90,676,143.66 was accordingly not demonstrated to represent a loss that was unattributed to amounts already received by MDV. [247] The FHMH Report itself acknowledged significant gaps in the money trail due to the absence of access to third-party books and records. Of the Washout Amounts, RM50 million was routed through ACSB to third parties, and the absence of independent verification was confirmed in the evidence of PW11 (Liew Kim Yuen), a representative of FHMH, in cross-examination: “We could not verify, especially with respect to the rounded sum of RM50 million, that they were in fact paid to these parties. They were represented to us, but we could not verify them because these payments generally would come out from the Defendant company itself, which we could then verify through the bank statements and through the return cheques, but these payments were all made through Antara, a third party. So, that was why I said those RM50 million in terms of stock were all book entries, until I could verify that they were indeed for those sums that were expended for.” [248] In these circumstances, MDV has not satisfied me that the figure of RM90,676,143.66 represents loss caused by the pleaded conspiracy, rather than a portion of the outstanding indebtedness under the RC Facility that may also be the S/N Ncfrnj/v40Cwy/GF5rhUDg subject of recovery in Suit 300. The complex transaction flow, the partial repayments through the Project Account, the unverifiable movement of RM50 million through ACSB to third parties, and the absence of a clear causation analysis in MDV’s submissions collectively mean that the damage element is not established. [249] Given my findings that MDV has failed to establish the elements of agreement, intention to injure, unlawful means, and damage, the conspiracy claim fails in its entirety. The Claim in Fraud The Essential Elements [250] The essential elements of the tort of fraud or deceit are those restated by the Federal Court in Terengganu Forest Products Sdn Bhd v Cosco Container Lines Company Ltd & Anor [2009] 7 MLJ 781, following the classic formulation of Lord Maugham in Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at 211: “[24] Based on the above established principles, in order for the plaintiff in the present case to establish its action for tort of deceit against the defendants, the plaintiff has to show the followings:

the said representations of fact by the defendants in the bill of lading were made by words or conduct;

the said representation were made with the intention that the said representation would be acted upon by the plaintiff, or by a class of persons which included the plaintiff;

the plaintiff had acted upon the false statements;

the plaintiff had suffered damage by doing so; and

the said representations were made with the knowledge that the said representations are false.” [251] I apply the civil standard of proof as confirmed in Sinnaiyah & Sons (supra), with the qualification that the gravity of the imputation of fraud requires clear and cogent evidence proportionate to the seriousness of the allegation. Knowledge of Falsity and Intention to Deceive [252] MDV submitted that the drawdown documentation submitted by PNC to MDV constituted representations that the disbursements were to be used for the purchase of primary feedstock pursuant to the RC Facility, and that MDV acted upon those representations by disbursing to the Approved Suppliers. The drawdown package comprised, among other things, a utilisation notice pursuant to Section 7.02 of the Master Facility Agreement, a purchase order by PGC to the Approved Supplier, a sales contract or sales S/N Ncfrnj/v40Cwy/GF5rhUDg confirmation between the Approved Supplier and PGC, and the Approved Supplier’s pro-forma invoice. [253] Each utilisation notice contained an express declaration that “all documents including certified true copies submitted to Malaysia Debt Ventures are genuine and that such documents represent valid expenditures to or be incurred by the company in the ordinary course of its business.” I accept that the submission of utilisation notices supported by purchase orders and sales contracts carried with it an implicit representation that disbursements were for the stated purpose, and that MDV relied on those documents in making each disbursement. [254] However, the decisive issue in a fraud claim is not whether misrepresentations were made, but whether they were made with knowledge of falsity or recklessly without regard to whether they were true or false, and with the intention of inducing MDV to act upon them. In Terengganu Forest Products Sdn Bhd v Cosco Container Lines Company Ltd & Anor (supra), restating the classic formulation of Lord Maugham in Bradford Third Equitable Benefit Building Society v Borders, the court held that to establish the tort of deceit a plaintiff must show, among other elements, that “the said representations were made with the knowledge that the said representations are false.” S/N Ncfrnj/v40Cwy/GF5rhUDg [255] That element, namely knowledge of falsity, or at minimum recklessness as to truth, at the moment each representation was made, is the crux of the present inquiry. As confirmed by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd, the standard is proof on a balance of probabilities, though the gravity of a fraud allegation requires clear and cogent evidence proportionate to its seriousness. [256] MDV’s case was that at the time the utilisation documents were submitted, the defendants had already formed the intention to cancel the contracts and divert the funds, thereby rendering the documents knowingly false. Across the 48 drawdowns from April 2013 to February 2015, comprising RM88.02 million to ACSB and RM2.655 million to AFI, MDV contended that the utilisation notices and supporting contracts were instruments of deliberate deception. In cross-examination, Anbananthan was directly challenged on this point: “KK: So, I repeat again, therefore, having regard to the fact that this request for disbursements that was made to MDV was in respect of a contract that had already been washed out, your act in submitting requests for disbursement purportedly on the issue that you’re going to order some goods and whatever, PNC, PGC and the four individual Defendants, Anbananthan, Jespal Singh, Sushil Singh, and Tan Sri Musa had, in fact, fraudulently procured MDV to make disbursements on false documentation. S/N Ncfrnj/v40Cwy/GF5rhUDg ANBA: I disagree.” [257] MDV submitted that Anbananthan’s denial could not be sustained in the face of the systematic pattern of 48 cancellations across more than two years, which it contended irresistibly invited an inference of deliberate design. [258] The critical emails relied upon by MDV showed refund requests and cancellation requests emanating from PGC to ACSB arising after the contracts were in place and after or around the time of disbursements. Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa submitted that these emails were entirely consistent with cancellations arising from commercial exigencies after the contracts were formed, rather than with a pre-formed intention at the time of submission to cancel the contracts. This distinction is legally significant: if a party enters a contract genuinely, but subsequently, for business reasons, decides not to proceed, that subsequent decision does not retrospectively convert the original contract into a fraudulent instrument. [259] ACSB maintained that its contracts with PGC were genuine commercial transactions, the cancellations being private settlements between buyer and seller. AFI further pointed to the chronology of the single transaction involving it: it had made payment of RM2,625,000.00 to PGC on 22.1.2015, some 27 days before MDV disbursed to AFI on 18.2.2015, S/N Ncfrnj/v40Cwy/GF5rhUDg leaving AFI out of pocket during the intervening period, a circumstance inconsistent with a pre-arranged scheme. [260] MDV did not adduce any direct evidence, whether in communications, internal or external, showing that, at the time of submission of each utilisation document (with the exception of the single AFI transaction), the Platinum Group had already resolved to cancel the contracts and divert the funds. The case for the vast majority of the transactions rested entirely on inference drawn from the subsequent pattern of cancellations. While the pattern is capable of raising suspicion, it does not, in my judgment, provide the clear and cogent evidence required to establish, affirmatively, that at the moment of each representation the makers knew the representation was false or were reckless as to its truth. Suspicion, however compelling, is not proof, and a finding of fraud demands positive evidence addressing the state of mind of the representor at the moment of each representation. [261] MDV relied on Terengganu Forest Products (supra) in support of its fraud case. In that case, the Federal Court found liability for fraud because the defendants admitted to issuing a bill of lading certifying goods as “shipped on board” when the goods had not been shipped, and were well aware of the falsity of that representation at the time it was made. The critical distinguishing feature is the admission of falsity at the material time. No such admission exists in the present case. The defendants deny that the S/N Ncfrnj/v40Cwy/GF5rhUDg utilisation documents were knowingly false, and MDV has not adduced evidence of the requisite quality to displace that denial. I therefore find that MDV has not proved the element of knowledge of falsity or recklessness as to truth at the time the representations were made, nor the requisite intention to deceive necessary to establish fraud. The fraud claim accordingly fails. Causation of Loss in the Fraud Claim [262] The causation analysis applicable to the fraud claim suffers from the same weaknesses as those identified above in relation to the conspiracy claim. In Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd (supra), the court affirmed: “When a plaintiff claims damages from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant’s wrong, and also that the damages are not too remote to be recoverable.” [263] MDV pleaded loss of RM90,676,143.66, being the aggregate disbursements made to ACSB and AFI across the 48 cancelled contracts. Its case was that causation flowed directly from reliance upon the utilisation documents and the consequent diversion of disbursed funds from their stated purpose under the RC Facility. S/N Ncfrnj/v40Cwy/GF5rhUDg [264] Anbananthan, Jespal Singh, Sushil Singh, and Tan Sri Abi Musa submitted that the pleaded sum did not represent actual loss proximately caused by the alleged fraudulent misrepresentations. They pointed to partial repayments through the Project Account in respect of transactions from 2013 and 2014. PW8 (Vijendran), MDV’s Portfolio Manager of the Credit Management Division, agreed under cross-examination with counsel’s suggestion that “given these payments in 2013 and 14 to some extent, have already been repaid to MDV via the project account, MDV has not suffered a loss of these particular transactions.” Additionally, the FHMH Report itself acknowledged that approximately RM50 million of the Washout Amounts routed through ACSB to third parties could not be independently verified. MDV adduced no adequate causation analysis in its post-trial submissions addressing either matter. [265] For these reasons, and for the same reasons set out above at paragraphs 239 to 249 in relation to the conspiracy claim, MDV did not establish that the pleaded figure of RM90,676,143.66 represents loss proximately caused by the alleged fraudulent misrepresentations. The fraud claim would also have failed on the element of causation of the pleaded loss. S/N Ncfrnj/v40Cwy/GF5rhUDg The Position of the Individual Defendants: Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa [266] Having found that the substantive torts of conspiracy and fraud have not been proved, it follows necessarily that the claims against Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa as directors of PNC and/or PGC must also fail. The personal liability of each individual defendant is derivative of and parasitic upon the establishment of an underlying tort; where the substantive tort is not made out, no personal liability for participation in or furtherance of that tort can arise. MDV submitted that each of the four individual defendants knowingly participated in or was aware of the scheme to divert the Washout Amounts. Each of these defendants denied any agreement to injure MDV and submitted that MDV had failed to discharge the evidential burden on every essential element of the pleaded torts. MDV’s failure on the substantive claims is, in the event, dispositive against all four. I nevertheless make specific observations regarding each defendant. [267] Anbananthan served as a director of PGC from 8.1.2007 and occupied an executive role within the Platinum Group throughout the material period. He is the individual defendant most directly implicated by the evidentiary record. The FHMH Report specifically identified him as the representative of PNC and PGC who gave verbal instructions to ACSB and AFI on the manner in which the disbursed sums were to be utilised following the S/N Ncfrnj/v40Cwy/GF5rhUDg cancellations of the contracts: “The instructions were given by the Company’s representative namely Anbananthan A/L Shanmugam.” [268] In cross-examination, Anbananthan confirmed the existence of contemporaneous emails styled “Urgent refund to the Platinum Group,” sent by PGC to ACSB in anticipation of disbursements from MDV, in which PGC directed ACSB to remit monies to the Platinum Group as soon as they were received. He further admitted that no steps were taken by the Platinum Group, including by any senior management or director, to inform MDV of the cancellation of contracts prior to the disbursements being made. [269] When directly confronted with MDV’s allegation that PNC, PGC, and the four individual defendants had “fraudulently procured MDV to make disbursements on false documentation,” Anbananthan’s response was: “I disagree.” He maintained throughout that the transactions constituted proper business arrangements. Notwithstanding the force of the FHMH Report’s findings and the probative weight of the refund emails as documents contemporaneous with the impugned transactions, I have found for the reasons set out above that the substantive torts have not been established to the requisite standard. The claims against Anbananthan accordingly cannot succeed. S/N Ncfrnj/v40Cwy/GF5rhUDg [270] Jespal served as a director of PNC from 21.8.2006 and of PGC from 8.1.2007. He held the position of Chief Executive Officer of GNC. MDV submitted that Jespal, by reason of his directorial and executive seniority within the Platinum Group, must have participated in or been aware of the conspiracy. MDV further pointed to the fact that Jespal was among the directors whom MDV required to be removed as a condition of the restructuring under SLO 13, characterising this as consistent with MDV’s own assessment of his involvement. Jespal did not testify at trial. His evidence is accordingly limited to that adduced through other witnesses and documentary materials. [271] The evidence did not establish any direct involvement by Jespal in the specific washout transactions, in the giving of verbal instructions to the Approved Suppliers, or in any agreement to injure MDV at the material time. Directorial responsibility and seniority within a corporate group, without direct evidence of participation in or knowledge of the specific scheme alleged, do not suffice to establish membership of a conspiracy where the underlying tort has not itself been proved. The claim against Jespal accordingly fails. [272] Sushil served as a director of PNC from 21.8.2006 and of PGC from 8.1.2007, and held the position of Finance Director of GNC. He testified at trial as DW10. The FHMH Report recorded that at a meeting on 28.8.2015, Sushil was requested to procure ACSB’s financial records to enable S/N Ncfrnj/v40Cwy/GF5rhUDg FHMH to verify the verbal instructions given by PNC and PGC in relation to the utilisation of approximately RM50 million; Sushil represented that PNC did not have the locus to access ACSB’s books and records. [273] In cross-examination, Sushil confirmed the representations and warranties obligations under the Master Facility Agreement and acknowledged that directors of the Platinum Group had, at the meetings in June and July 2015, admitted that certain disbursements had been applied to the Platinum Group’s working capital. However, MDV did not adduce cogent direct evidence connecting Sushil to an agreement or intention to injure MDV at the material time of the 48 washout transactions from January 2013 to February 2015. His attendance at the post-default meetings and his directorial capacity do not, on the evidence before this court, establish the elements of an unproved conspiracy. The claim against Sushil accordingly fails. [274] Tan Sri Abi Musa occupied the position of non-executive chairman of the Platinum Group and GNC. He held no operational role in the day-to-day management of PNC or PGC during the material period. He did not testify at trial. Significantly, the FHMH Report does not associate Tan Sri Abi Musa with any aspect of the verbal instructions to the Approved Suppliers or with any operational dimension of the Washout Amounts. S/N Ncfrnj/v40Cwy/GF5rhUDg [275] MDV’s own witness PW10, Aimi (Chief Business Officer of MDV), confirmed in cross-examination that he had never personally met Tan Sri Abi Musa throughout his involvement in the project from May 2014 up to the novation, and agreed that Tan Sri Abi Musa was never involved in any discussions or meetings with MDV in respect of the project account. PW10 further confirmed that Tan Sri Abi Musa’s addition to the Platinum board was a consequence of the restructuring, effected at MDV’s own insistence that Jespal and Sushil be replaced, and was motivated entirely by his standing and reputation: “AIMI: I can’t remember but by replacing those two with Tan Sri Abi which has a better credibility in terms of name and status, I think the board decided that it was better to have him, the accountability of a Chairman to actually have a skin in the game to actually guarantee the restructured loan. That much that I know.” [276] This evidence confirmed that Tan Sri Abi Musa’s substantive involvement with MDV commenced only in the context of the Restructured Facility from 2016 onwards. MDV relied on PNC’s board minutes from 2012 to 2014 to assert that Tan Sri Abi Musa attended board meetings during the relevant period, and on the fact that the Notice of Breach dated 14.7.2015 was addressed to him and was not responded to. Neither is sufficient: attendance at board meetings in a non-executive capacity does not, without more, establish membership of a conspiracy to injure MDV, S/N Ncfrnj/v40Cwy/GF5rhUDg and the absence of a response to the Notice of Breach is at least as consistent with non-involvement as with an admission of culpability. There is no evidence that Tan Sri Abi Musa was a party to any agreement to injure MDV during the period of the 48 washout transactions from January 2013 to February 2015. The claim against Tan Sri Abi Musa is the weakest on the evidence, and it fails accordingly. Waiver, Election, and Estoppel [277] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa, joined by AFI, advanced the defence that MDV’s conduct following receipt of the FHMH Report, specifically its restructuring of the RC Facility by way of SLO 13 dated 16.3.2016 and the subsequent novation to PTSB, operated to estop MDV from asserting that the washout transactions constituted fraud and conspiracy. Two related doctrines were invoked. First, on election, it was submitted that MDV, confronted with a choice between pursuing the defendants in tort or accepting the restructuring, elected the latter by accepting the first instalment of RM2,000,000.00 on 7.6.2016, agreeing to novate to PTSB on 29.6.2016, requiring board changes, and executing the novation agreements in 2016 and 2017. Second, on acquiescence, it was submitted that MDV’s sustained conduct without any reservation of tortious claims amounted to a representation by conduct that it accepted the transactions as valid. S/N Ncfrnj/v40Cwy/GF5rhUDg [278] In support, these defendants relied on Boustead Trading

Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 (Court of Appeal, Gopal Sri Ram JCA), for the principle that parties may not resile from an underlying assumption where to do so would be unfair or unjust. On inaction after knowledge of breach, they relied on Bank Kerjasama Rakyat Malaysia Bhd v Ang Eng Hooi & Anor [2023] MLJU 3434 (High Court): “[59] It is my conclusion that even if the Letter of Undertaking is valid, the Bank is barred by laches or acquiescence and estoppel as it has slept on its rights. I consider that the Bank sat on its rights and only embarked on bringing this action in the year 2022, after the Scheme of Arrangement was rendered void and EKA was wound up.” [279] They further relied on MDV’s own Notice of Breach letter to PNC dated 14.7.2015, in which MDV stated it would not proceed if the forensic accountant discovered wrongdoing contrary to Platinum’s representations, yet MDV proceeded, and was said to be thereby estopped. [280] MDV responded that Clause 8 of SLO 13 constituted an express reservation of all its rights and was not limited to contractual breaches. Clause 8 provided expressly that nothing in SLO 13 was to be construed as: “(a) a waiver, forbearance or indulgence by MDV of any breach or default by the Customer or any S/N Ncfrnj/v40Cwy/GF5rhUDg guarantor or security provider or of MDV’s right to commence or proceed with legal or other proceedings or action for the recovery of all amounts owing to MDV;

releasing or discharging the Customer or any guarantor or security provider from any or all of their respective liabilities, obligations and indebtedness to MDV under, arising from or in connection with the Existing Facility or any Security Documents...” [281] MDV further relied on Clause 2.1 of the Agreement to Novate: “……PNSB shall continue to be liable to MDV for any breaches and/or defaults of the Letters of Offer and the Master Facility Agreement committed by PNSB prior to the Effective Date.” [282] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa countered that Clause 8 was a standard boilerplate clause which, properly construed, addressed only contractual breaches and defaults, not independent tortious claims. They submitted that SLO 13 was issued after the FHMH Report, and that had MDV intended to preserve tortious claims, it would have done so in express terms. As to the proposition in Satyam Computer Services Ltd v Upaid Systems Ltd [2008] 2 All ER (Comm) 465 (English Court of Appeal) that express words are required to release fraud claims, they relied on Riley and Another v National Westminster Bank Plc [2024] EWCA Civ 833 (English Court S/N Ncfrnj/v40Cwy/GF5rhUDg of Appeal) and Maranello Rosso Ltd v Lohomij BV and Ors [2022] EWCA Civ 1667 (English Court of Appeal), which held that Satyam “should not be read as support (even obiter) for the proposition that express words are always, or even generally, required to release a claim in fraud.” [283] I accept that this issue raises genuine arguments on both sides. MDV’s position finds support in the principle that where a party expressly reserves its rights in writing, it cannot be said to have approbated the transaction or acquiesced in it. In Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (Privy Council), Lord Nicholls confirmed that a plaintiff with cumulative remedies is not required to choose between them and may pursue both concurrently, subject only to the principle that full satisfaction prevents double recovery. The language of Clause 8 and Clause 2.1 of the Agreement to Novate lend textual support to MDV’s position. On the other hand, the argument that Clause 8 does not in terms expressly preserve tortious claims is not without force, and the conduct-based case on election and acquiescence, against the backdrop of MDV’s sustained post-FHMH engagement, is not plainly untenable. [284] However, having regard to my findings that the substantive torts of conspiracy and fraud have not been proved on the evidence, this debate is ultimately academic. The question of whether SLO 13 and the subsequent restructuring estopped MDV from bringing tortious claims does not fall to S/N Ncfrnj/v40Cwy/GF5rhUDg be decided, because those claims fail on their merits irrespective of whether the estoppel defence succeeds. I decline to express a concluded view on the estoppel question and observe only that it does not affect the outcome of the case. [285] The Bank Kerjasama Rakyat case is distinguishable on its facts. The court there found protracted inaction following knowledge of breach: the plaintiff bank, having discovered by 2019 that the defendant’s land had been charged to Bank Islam, took no action until 2022, after the scheme of arrangement was rendered void. Critically, an expiry mechanism in the letter of undertaking required the land to be charged on or before 30.6.2018, and the bank took no steps upon that lapse. The claim in Bank Kerjasama Rakyat was purely contractual in nature. Here, MDV took active steps: appointing forensic accountants, issuing a Notice of Breach, restructuring with an express non-waiver clause, requiring board changes, and initiating proceedings in 2018 and 2019. Whether those preserved rights extend to tortious claims is a matter of construction I need not resolve for present purposes. The Issue of Double Recovery [286] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa submitted that by pursuing both Suit 300 and Suit 643 in respect of the same RC Facility and the same approximate quantum of RM91 million, MDV was seeking double S/N Ncfrnj/v40Cwy/GF5rhUDg recovery of the same loss. They relied on Personal Representatives of Tang Man Sit v Capacious Investments Ltd, for the proposition that a plaintiff cannot recover in the aggregate an amount in excess of its actual loss. They contended that a judgment in MDV’s favour in both suits would produce a total recovery in excess of RM180 million excluding interest and costs, which they characterised as constituting impermissible double recovery and an oppression of them. [287] MDV responded that Suit 300 and Suit 643 are distinct and independent causes of action, one contractual and one tortious, arising from different aspects of the same facts. In Suit 300, MDV sought to recover the outstanding sum under the Restructured Facility on the basis of contractual default. In Suit 643, MDV claimed damages in tort arising from the 48 Washout Transactions from January 2013 to February 2015, resulting in aggregate Washout Amounts of approximately RM92 million. MDV relied on OCBC Bank (Malaysia) Berhad v Yong Hong Development Sdn Bhd & 36 Others [2020] MLJU 847 (High Court) for the proposition that an Order 14 suit for the recovery of a loan and a subsequent fraud suit arising out of the same loan constitute two distinct and independent causes of action that may stand alone without the other, and that the former does not preclude the latter. MDV further submitted that Tang Man Sit (supra), properly understood, supported its own position. S/N Ncfrnj/v40Cwy/GF5rhUDg [288] I accept MDV’s analysis. Tang Man Sit draws a fundamental distinction between alternative and inconsistent remedies, where a plaintiff must elect between them, and cumulative remedies, where no such election is required. As Lord Nicholls explained in the decision of the Privy Council: “Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies... A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss... However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery.” [289] These principles were applied by the Federal Court in Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian a/l Nagappan @ Marie [2021] 5 MLJ 253. The prevention of double recovery is not engaged by the mere pendency of two concurrent suits; it becomes an operative constraint only at the stage of satisfaction of judgment. As confirmed by the High Court in OCBC Bank (Malaysia) Berhad v Yong Hong Development Sdn Bhd & 36 Others (supra), a contractual recovery suit and a tortious fraud suit arising from the same underlying facility constitute distinct and independent causes of action. S/N Ncfrnj/v40Cwy/GF5rhUDg [290] This discussion is, nevertheless, academic in light of my finding that the claims in both conspiracy and fraud have each failed on their merits. The question of double recovery does not arise for determination. The Counterclaim for Abuse of Process [291] I now turn to the Counterclaim brought by Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa for the tort of collateral abuse of process. [292] The Counterclaim rested on two grounds. First, these defendants contended that MDV’s concurrent pursuit of Suit 300 for contractual recovery and Suit 643 for tortious relief, both arising from the same RC Facility and the same approximate quantum of RM91 million, was oppressive and demonstrated a purpose that was collateral rather than genuine. Second, they submitted that the naming of Tan Sri Abi Musa as the 8th Defendant compounded the alleged abuse: he was a non-executive chairman who held no management position, was not involved in any of the washout transactions between January 2013 and February 2015, and whose directorship of PTSB arose only in 2017 at MDV’s own insistence as a condition of restructuring. [293] In respect of damages, these defendants relied on Hj Ahmad Kamal bin Zakaria & Ors v Perak Integrated Network Services Sdn Bhd [2022] 12 MLJ 396 (High Court) for the proposition that a party who successfully proves the S/N Ncfrnj/v40Cwy/GF5rhUDg tort is entitled to compensatory damages including legal fees and expenses, and additionally to exemplary, punitive, and aggravated damages. MDV submitted in response that the Counterclaim was entirely misconceived because MDV had brought this action in genuine pursuit of legal redress, supported by the findings of the FHMH Report, the admissions made at the 8.7.2015 meeting, and the overall pattern of the transactions. MDV further submitted that the inclusion of Tan Sri Abi Musa as a defendant was justified by his directorial position at the material time and the fact that the Notice of Breach dated 14.7.2015 was addressed to him and remained unresponded to, and that his predicament was a direct consequence of his involvement as a Board member. [294] The test for collateral abuse of process was stated by Gopal Sri Ram JCA (as he then was) in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425 (Court of Appeal): “Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court’s process is abused, the proceedings complained of S/N Ncfrnj/v40Cwy/GF5rhUDg may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process.” [295] In that case, the Court of Appeal further held that three elements must be established before the tort is made out: a) the process complained of must have been initiated; b) the purpose for initiating that process must be some purpose other than to obtain genuine redress for which the process offers, and the dominant purpose must be collateral, aimed at producing a result not intended by invocation of the process; and c) the plaintiff must have suffered damage or injury in consequence. [296] Turning to the second element, namely the dominant purpose, Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa did not satisfy me that MDV’s dominant purpose in bringing this action was collateral oppression rather than a genuine attempt to obtain legal redress for what MDV believed to be fraudulent and conspiratorial conduct on the part of these defendants. MDV was in possession of the FHMH Report, which identified Washout Amounts of approximately RM92 million and recorded that “PNC management then admitted that the RC Facility drawdowns totalling approximately RM92 million were in fact not used to S/N Ncfrnj/v40Cwy/GF5rhUDg facilitate sales to both Shell and Sietco but rather were used for the Platinum Group’s working capital requirements.” [297] MDV was further supported by the discussions at the 8.7.2015 meeting. These matters furnished a bona fide forensic and evidentiary basis for the initiation of Suit 643, irrespective of the ultimate outcome of the litigation. The fact that MDV has also brought Suit 300 for contractual recovery does not establish that the purpose of Suit 643 was collateral. Litigants are entitled to pursue available causes of action simultaneously, and the mere fact that two suits arise from the same facts or the same quantum does not establish that either suit was filed for a collateral purpose. [298] Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa sought to rely on the circumstance that the inclusion of Tan Sri Abi Musa demonstrated a collateral purpose. They pointed to his non-executive role, the absence of any reference to him in the FHMH Report in connection with the operational conduct of the Platinum Group, and the fact that his directorship of PTSB arose only in 2017 as a consequence of MDV’s own requirement that Jespal and Sushil be removed as part of the restructuring conditions imposed under the Restructured Facility. That factual position was confirmed by MDV’s own witness Aimi in cross-examination when asked why MDV had insisted upon Tan Sri Abi Musa’s appointment: S/N Ncfrnj/v40Cwy/GF5rhUDg “AIMI: I can’t remember but by replacing those two with Tan Sri Abi which has a better credibility in terms of name and status, I think the board decided that it was better to have him, the accountability of a Chairman to actually have a skin in the game to actually guarantee the restructured loan. That much that I know.” [299] While I have noted the relative weakness of the evidence against Tan Sri Abi Musa as a non-executive chairman, and while the inclusion of Tan Sri Abi Musa may ultimately prove to have been misconceived, that does not transform the overall suit into an exercise in collateral oppression. MDV had a forensic report which implicated the Platinum Group in the diversion of approximately RM92 million in Washout Amounts; MDV was entitled to bring proceedings against the directors of the relevant entities, including non-executive directors, as parties who may have been involved in or aware of the relevant conduct. The decision to do so reflected a bona fide assessment of potential liability rather than a collateral purpose. [300] I further note that Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa did not adduce evidence of a sufficient quality to establish that any injury or damage suffered by them as a consequence of defending this suit was attributable to an improperly motivated invocation of the court’s process, as opposed to the ordinary burdens of litigation in a complex commercial case. S/N Ncfrnj/v40Cwy/GF5rhUDg [301] These defendants relied on Hj Ahmad Kamal bin Zakaria & Ors v Perak Integrated Network Services Sdn Bhd (supra) for the proposition that a successful party in a collateral abuse of process claim is entitled to compensatory, exemplary, and aggravated damages including legal fees, anxiety, and reputational harm. That authority correctly states the applicable principles in circumstances where the tort has been established; it affords no assistance where the threshold requirements for the tort have not been met. In Malaysia Building Society (supra), the Court of Appeal set aside the damages awarded in that case on the basis that the respondent had failed to prove the essential elements of the tort. The same outcome is warranted here. [302] I accordingly dismiss the Counterclaim for collateral abuse of process. ADDRESSING THE ISSUES TO BE TRIED Suit 300 [303] Both MDV and the Suit 300 Defendants filed separate sets of issues to be tried. Upon examination, the two sets exhibit substantial overlap but are not identical. MDV’s issues are primarily structured around its own cause of action, namely liability under the Restructured Facility and the guarantees, the non-existence of a concluded compromise, and whether MDV was itself in breach. The Suit 300 Defendants’ issues are structured around the positive case that a binding S/N Ncfrnj/v40Cwy/GF5rhUDg compromise was reached, that the formal agreement was a mere formality, that the Delisting was irrelevant to the Proposal, and that MDV’s withdrawal was a repudiatory breach. There is one issue that appears only on the Suit 300 Defendants’ list, namely whether it was agreed that GNC would remain listed on AIM throughout the RTO, and one issue that appears only on MDV’s list, namely whether the Suit 300 Defendants are in breach of their repayment and guarantee obligations, which the Suit 300 Defendants did not frame as a positive issue since their entire defence rests on the compromise extinguishing those obligations. [304] Rather than traverse each set separately, which would entail considerable repetition given the near-complete mirror-image relationship between the two sets on the central compromise question, the court proceeds by reference to five consolidated issues derived from both sets, which between them capture every question raised in either list. Each consolidated issue is answered with cross-reference to the relevant numbered issues in both parties’ respective filings, so that no filed issue is left unanswered. Consolidated Issue 1 [305] Consolidated Issue 1 is set out as follows: Whether PTSB is in breach of its repayment obligations under the novated SLO 13, and whether S/N Ncfrnj/v40Cwy/GF5rhUDg GNC and the Personal Guarantors are liable under their respective guarantees. (Corresponds to: MDV’s Issue 1; not expressly raised in the Suit 300 Defendants’ issues, as their defence is that the compromise extinguished these obligations) [306] This issue is determined in MDV’s favour. It is undisputed that PTSB assumed all repayment obligations of PNC under the Restructured Facility pursuant to the novation effected in August 2017, and that PTSB failed to meet those obligations from October 2017 onwards. GNC executed the Corporate Guarantee unconditionally guaranteeing PTSB’s obligations. The Personal Guarantors executed the Personal Guarantee jointly and severally guaranteeing PTSB’s obligations. No payment has been made by any defendant. The only defence raised to liability is the alleged compromise, which, for the reasons given in the analysis above, is rejected. It follows that PTSB is in breach of its repayment obligations under SLO 13 as novated, and that GNC and the Personal Guarantors are each liable under their respective guarantee instruments for the Outstanding Sum. Consolidated Issue 2 [307] Consolidated Issue 2 is set out as follows: Whether MDV consented to the conversion of PTSB’s debt into shares via the Proposal and the proposed S/N Ncfrnj/v40Cwy/GF5rhUDg RTO, and whether the exchange of correspondence between the parties constitutes a valid and binding compromise or settlement. (Corresponds to: MDV’s Issue 2; Defendants’ Issues 1 and 2) [308] This issue is determined against the Suit 300 Defendants. MDV did not give a binding and unconditional consent to the conversion of its debt into shares. Throughout the correspondence MDV described itself as “agreeable to consider” the Proposal subject to conditions, which is the language of conditional engagement and not of concluded agreement. No valid and binding compromise or settlement was formed by the exchange of the six letters. The reasons are set out fully at paragraphs 66 to 92 above and are not repeated here. In summary: MDV’s language was consistently conditional; Item F preserved MDV’s right to impose additional terms and was never removed; the 6th Letter contemplated execution of a formal settlement agreement as the event creating binding effect; that letter also contained a general reservation of rights; the parties’ post-27.2.2018 conduct was inconsistent with a concluded contract; no settlement agreement was executed by the parties’ own stipulated deadline; and essential conditions precedent in Items A, D, and E were never fulfilled. Consolidated Issue 3 [309] Consolidated Issue 3 is set out as follows: S/N Ncfrnj/v40Cwy/GF5rhUDg If a binding compromise was concluded — (a) whether PTSB complied with its conditions; (b) whether execution of a formal settlement agreement was merely a formality; and (c) whether MDV’s withdrawal on 13.4.2018 constitutes a repudiatory breach of the compromise. (Corresponds to: MDV’s Issues 3(a) and 3(b); Suit 300 Defendants’ Issues 3.1, 3.2, and 5) [310] This consolidated issue does not arise in its primary form, since no binding compromise was concluded. Nonetheless, the court addresses each component in the alternative, in the event that the primary finding is wrong. [311] As to (a), compliance with conditions, PTSB did not fulfil the conditions precedent under Items A(i), A(ii), D, and E of the 4th Letter. The Personal Guarantors did not execute a letter of guarantee and indemnity covering all amounts due as at 31.12.2017 in the form required by MDV; they proposed a more limited guarantee extending only until completion of the RTO, which was a materially different obligation. No legal opinion was furnished under Item D. No NOMAD Report was delivered under Item E, and after Panmure’s resignation it was impossible to do so. PTSB accordingly did not comply with the conditions of the alleged compromise. [312] As to (b), whether formal execution was a formality, it was not. The 6th Letter directed that the settlement agreement S/N Ncfrnj/v40Cwy/GF5rhUDg be prepared “for your execution,” which objectively signalled that binding effect was intended to arise upon execution and not before. The draft agreement circulated in late March 2018 required review by multiple parties. Item G stipulated a deadline for execution that was never met. On any objective view, the formal agreement was a substantive contractual requirement, not an administrative exercise. [313] As to (c), whether MDV’s withdrawal was a repudiatory breach, it was not. There was no binding compromise to breach. Even if there had been, PTSB had not fulfilled the conditions precedent, and the Delisting had rendered the Proposal unviable. MDV’s withdrawal on 13.4.2018 was accordingly justified. Consolidated Issue 4 [314] Consolidated Issue 4 is set out as follows: Whether it was a term of any compromise that GNC would remain listed on AIM throughout the duration of the RTO, and if not, whether the Delisting impaired GNC’s ability to deliver listed shares and rendered the Proposal unviable. (Corresponds to: Suit 300 Defendants’ Issue 4 and 4.1; not expressly raised in MDV’s issues, but addressed by MDV as an alternative ground) S/N Ncfrnj/v40Cwy/GF5rhUDg [315] There was no express term of the alleged compromise that GNC would remain listed on AIM throughout the duration of the RTO. The correspondence does not contain such a stipulation, and the court does not read one into the alleged agreement. However, the commercial premise of the Proposal as presented to MDV on 29.11.2017 was that MDV would receive freely tradeable listed shares in GNC upon the completion of the RTO. That premise depended, as a practical and commercial matter, on GNC having a NOMAD and remaining capable of proceeding to readmission through a regulated process. [316] The Delisting on 19.3.2018 was not a strategic decision: it was the direct regulatory consequence of GNC’s failure to appoint a replacement NOMAD within the period stipulated by Rule 1 of the AIM Rules after Panmure’s departure on 16.2.2018. Even accepting Mr Bompas’s evidence that the procedural process of readmission under Rule 14 of the AIM Rules is substantially the same whether the RTO proceeds before or after a delisting, the Delisting introduced material additional uncertainty and a period of unlisted status during which MDV’s prospective shareholding would not have been freely tradeable. The Delisting therefore materially altered the commercial proposition and rendered the Proposal, as presented and negotiated, no longer viable. MDV was entitled to withdraw and to treat the Proposal as having lapsed. S/N Ncfrnj/v40Cwy/GF5rhUDg Consolidated Issue 5 [317] Consolidated Issue 5 is set out as follows: What is the quantum of the Outstanding Sum and the Suit 300 Defendants’ Counterclaim? (Corresponds to: MDV’s Issue 1 in part; implicit in both sets of issues) [318] The Outstanding Sum of RM108,772,652.67 as at 31.5.2018 is proved. The Suit 300 Defendants did not mount a credible evidential challenge to MDV’s computation of the Outstanding Sum at trial, and the principle in Browne v Dunn applies. The Outstanding Sum is due and owing from all Defendants, jointly and severally. [319] The Suit 300 Defendants’ Counterclaim for wasted expenditure of RM251,749.00 fails. It is premised on a concluded compromise and a breach thereof, neither of which has been established. In the alternative, the claimed items of expenditure were not proved to have been caused by any wrongful act on MDV’s part, and they do not satisfy the requirements of causation, remoteness, and proof mandated by section 74 of the Contracts Act 1950, Hadley v Baxendale (supra), Toeh Kee Keong v Tambun Mining Co Ltd (supra), and Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd (supra). The Counterclaim is dismissed. S/N Ncfrnj/v40Cwy/GF5rhUDg Suit 643 [320] Returning to the specific issues identified for determination in Suit 643, arising from the respective issues to be tried filed by the parties, the following are the court’s determinations: Issue 1 [321] Issue 1 is set out as follows: Whether the defendants in Suit 643 had conspired by unlawful means to cause loss and damage to MDV, as alleged. [322] This is answered in the negative. For the reasons set out in Section II above, MDV has failed to prove, on a balance of probabilities, any of the four essential elements of the tort of conspiracy by unlawful means, namely: (i) any agreement, express or tacit, between the alleged conspirators to injure MDV; (ii) any intention on the part of the defendants to cause loss to MDV as an end in itself or as a means to an end; (iii) the employment of unlawful means in furtherance of such an agreement; and (iv) damage caused by the pleaded conspiracy. The claim in conspiracy fails in its entirety against all defendants in Suit 643. S/N Ncfrnj/v40Cwy/GF5rhUDg Issue 1.1 [323] Issue 1.1 is set out as follows: Whether the purported ‘cancellation’ of contracts was in fact the industry practice of contract “washouts”. [324] The court finds that cancellations are consistent with a recognised industry practice. The uncontroverted expert evidence of DW7 (Sandeep Singh), who is an arbitrator at PORAM and former Vice President, Global Trading and Marketing Unit of Sime Darby Plantation Berhad, established that the circle or washout mechanism is a well-established and accepted practice in the palm oil commodities trade, expressly recognised in standard PORAM and FOSFA contracts and further acknowledged by the Ministry of Finance’s GST exemption circular of

MDV called no expert witness to rebut this evidence. The court accepts that the contract cancellations in the present case are, on the evidence available, consistent with that recognised industry practice. This determination does not, however, constitute an express finding that the specific mechanics of each transaction complied in every respect with the standard PORAM washout procedure; it is a finding that the mere fact of cancellation does not, without more, establish unlawful means. S/N Ncfrnj/v40Cwy/GF5rhUDg Issue 2 [325] Issue 2 is set out as follows: Whether the defendants in Suit 643 had caused loss and damage to MDV by fraud, as alleged. [326] This is answered in the negative. For the reasons set out in paragraphs 250 to 261 above, MDV has failed to prove the essential elements of the tort of deceit. In particular, MDV has not established, to the requisite standard of clear and cogent evidence, that at the time each utilisation document was submitted, the makers thereof knew the representations were false or were reckless as to their truth, nor has MDV proved the requisite intention to deceive. MDV’s case rested on inference drawn from the subsequent pattern of cancellations, which does not suffice to establish a pre-formed fraudulent intent at the moment of each representation. Furthermore, MDV did not satisfactorily demonstrate that the pleaded quantum of RM90,676,143.66 was loss proximately caused by the alleged fraudulent misrepresentations. The fraud claim fails against all Defendants. Issue 3 [327] Issue 3 is set out as follows: S/N Ncfrnj/v40Cwy/GF5rhUDg If the answer to Issues 1 and 2 are in the affirmative, whether MDV is entitled to the reliefs sought in the statement of claim. [328] This does not arise. The answers to Issues 1 and 2 are in the negative. MDV is accordingly not entitled to the reliefs sought in the Statement of Claim, and its claim is dismissed. Issue 4 [329] Issue 4 is set out as follows: Whether the restructuring of the RC Facility via SLO 13 had absolved Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa of any liability to MDV under the tort of conspiracy and/or fraud. [330] This does not arise for conclusive determination. As the substantive claims in conspiracy and fraud have failed on their merits, the question of whether SLO 13 operated to absolve Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa of any tortious liability does not fall to be decided. The court notes, for completeness, that Clause 8 of SLO 13 contained an express reservation of rights by MDV, and that the competing arguments on the scope of that clause, namely whether it extends to tortious claims or is limited to contractual breaches and defaults, raise genuine issues of construction which are left for determination in an appropriate future case, should the need arise. S/N Ncfrnj/v40Cwy/GF5rhUDg Issue 5 [331] Issue 5 is set out as follows: Whether the alleged compromise and/or settlement between MDV and PTSB can in law or in fact absolve the liability of Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa for the tort of conspiracy and/or fraud. [332] This does not arise. The substantive claims having failed, it is unnecessary to determine whether any compromise or settlement between MDV and PTSB in the context of Suit 300 would operate to absolve Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa from tortious liability in the present action. The court notes only that MDV disputed the existence of any binding compromise or settlement in Suit 300, and that issue is addressed separately in paragraphs 66 to 91 above. Issue 6 [333] Issue 6 is set out as follows: Whether MDV had, in filing Suit 300, elected to proceed on the basis that the Restructured Facility was valid and regular. [334] This does not arise for conclusive determination. The claims in Suit 643 having failed on their merits, the court need not determine whether the filing of Suit 300 amounted to an S/N Ncfrnj/v40Cwy/GF5rhUDg irrevocable election by MDV to proceed exclusively on the footing that the Restructured Facility was valid. The court observes, however, that the doctrine of election operates as a constraint only where two causes of action are truly inconsistent and mutually exclusive. In the present case, the contractual recovery claim in Suit 300 and the tortious claims in Suit 643, whilst arising from the same underlying RC Facility, are legally distinct and independent causes of action. Consistent with the principle in Tang Man Sit v Capacious Investments Ltd, pursuing both simultaneously does not of itself constitute a conclusive election between them, provided there is no double recovery. Issue 7 [335] Issue 7 is set out as follows: Whether MDV is, in the circumstances of this case, estopped from filing its claim in Suit 643. [336] This does not arise for conclusive determination. For the reasons given in paragraphs 277 to 285 above, this issue is academic in light of the failure of the substantive claims on their merits. The court declines to express a concluded view on whether MDV’s post-FHMH Report conduct, specifically the restructuring effected by SLO 13 and the subsequent novation to PTSB, operated as an estoppel or by way of acquiescence to bar the present claims. It suffices to note that Anbananthan, Jespal Singh, Sushil Singh and Tan Sri S/N Ncfrnj/v40Cwy/GF5rhUDg Abi Musa’s reliance on Bank Kerjasama Rakyat Malaysia Bhd v Ang Eng Hooi & Anor is, on the facts of the present case, distinguishable for the reasons set out at paragraphs 285 above. Issue 8 [337] Issue 8 is set out as follows: Whether MDV’s claim herein is an abuse of process. [338] This is answered in the negative. There is insufficient evidence to characterise MDV’s claim as an abuse of process in the sense of the tort of collateral abuse of process. MDV had a basis, derived from the FHMH Report and the admissions made at the 8.7.2015 meeting, to believe that the defendants in Suit 643s had acted tortiously in the utilisation of the RC Facility. The filing of Suit 643 reflected a bona fide attempt to obtain legal redress for what MDV believed to be fraudulent and conspiratorial conduct. The mere fact that MDV concurrently maintained Suit 300 for contractual recovery does not demonstrate that the dominant purpose of Suit 643 was collateral oppression rather than genuine pursuit of redress. The claim that the present proceedings constituted an abuse of process is rejected. S/N Ncfrnj/v40Cwy/GF5rhUDg Issue 9 [339] Issue 9 is set out as follows: Whether Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa are entitled to the reliefs sought in the Counterclaim. [340] This is answered in the negative. The Counterclaim for the tort of collateral abuse of process is dismissed for the reasons set out in paragraphs 289 to 299 above. Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa have not established the essential elements of the tort as identified in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed, in particular that MDV’s dominant purpose in bringing this action was a collateral purpose other than the genuine pursuit of legal redress. Issue 10 [341] Issue 10 is set out as follows: Whether, at the material time, MDV had contracted, contacted, or communicated with ACSB at all, and in particular whether there was any request, necessity, requirement, or obligation for ACSB to notify MDV in the event of the cancellation and/or “washout” of the Sale Contracts by PGC. S/N Ncfrnj/v40Cwy/GF5rhUDg [342] The court finds that MDV had no direct contractual or communication nexus with ACSB during the material period. At all material times, ACSB’s only contractual counterparty was PGC. There is no evidence that MDV communicated to ACSB the terms or conditions of the RC Facility, that ACSB was aware that MDV had disbursed funds directly to it as an Approved Supplier, or that ACSB was otherwise made aware that its commercial dealings with PGC were connected to MDV’s financing. In the absence of any direct relationship, contractual or otherwise, between MDV and ACSB, no duty or obligation arose on ACSB’s part to notify MDV of any cancellation or washout by PGC. Issue 10.1 [343] Issue 10.1 is set out as follows: Whether ACSB owed any undertaking, obligation or duty in law to notify MDV of any cancellation and/or “washout” by PGC. [344] This is answered in the negative. For the reasons stated in the determination of Issue 10 above, ACSB owed no duty in law, whether contractual, tortious, or otherwise, to notify MDV of the cancellation of sales contracts between itself and PGC. ACSB’s legal obligations ran exclusively to PGC as its contractual counterparty. S/N Ncfrnj/v40Cwy/GF5rhUDg Issue 10.2 [345] Issue 10.2 is set out as follows: Whether in all the circumstances ACSB is liable to return the monies disbursed by MDV when PGC cancelled and/or “washed out” the Sale Contracts. [346] This is answered in the negative. ACSB received the disbursed monies from MDV in the course of commercial transactions with PGC. Upon cancellation of those transactions by PGC, ACSB returned the relevant amounts to PGC, less the agreed commission of RM370,000, in accordance with its arrangements with PGC. ACSB was not a party to the RC Facility, was not bound by its terms, and owed no obligation to MDV to return monies to MDV rather than to its own contractual counterparty, PGC. In the absence of any unlawful act by ACSB proved to the requisite standard, no liability to repay arises. Issue 10.3 [347] Issue 10.3 is set out as follows: Whether there were any unlawful acts, as a matter of law, on ACSB’s part, or any valid inference that ACSB had acted jointly with the rest of the defendants in Suit 643, with the necessary intention and/or deliberate cooperation to cause injury, loss, and/or damage to S/N Ncfrnj/v40Cwy/GF5rhUDg [348] This is answered in the negative. There is no evidence of any unlawful act on the part of ACSB in connection with the washout transactions. The contract cancellations between ACSB and PGC were private commercial arrangements between a seller and its buyer, consistent with recognised industry practice. There is no valid basis for inferring that ACSB acted in concert with the other defendants, or with any intention, necessary or otherwise, to cause injury to MDV. The claim against ACSB fails on all counts. Issue 11 (AFI) [349] There was no specific issue framed between MDV and AFI in the agreed issues to be tried. The court nevertheless records its determination in respect of AFI. [350] The claim against AFI is dismissed. On the evidence, AFI had no knowledge that it had been designated as an Approved Supplier under the RC Facility and was not informed of the terms of the MDV financing arrangement. The one transaction involving AFI, pursuant to a Purchase Confirmation dated 20.1.2015, was, on the evidence, a genuine commercial transaction. The chronology of that transaction, in which AFI paid PGC on 22.1.2015 some 29 days before MDV disbursed to AFI on 20.2.2015, is fundamentally inconsistent with AFI’s participation in a pre-arranged scheme to divert MDV’s funds. MDV has not proved, against AFI, any of the essential elements of conspiracy or fraud. The claim against AFI is dismissed. S/N Ncfrnj/v40Cwy/GF5rhUDg CONCLUSION AND ORDERS [351] For the reasons stated above, I make the following orders: Suit 300 [352] MDV’s claim against PTSB, GNC, and the Personal Guarantors is allowed and their Counterclaim is dismissed, and PTSB, GNC, and the Personal Guarantors shall jointly and severally pay to MDV: a) The sum of RM108,772,652.67 under the Restructured Facility as at 31.5.2018; b) Profit at a rate of 8% per annum on the sum of RM91,165,894.67 from 1.6.2018 until full and final settlement; c) Compensation Charges at the rate of 1% per annum on the Asset Sale Price under the Restructured Facility from 1.6.2018 until the maturity date or the date of judgment, whichever is earlier; d) and thereafter Compensation Charges at the prevailing rate of Islamic Interbank Money Market Rate on the Asset Sale Price under the Restructured Facility from the maturity date or the date of judgment, whichever is earlier, until full and final settlement; and S/N Ncfrnj/v40Cwy/GF5rhUDg e) Costs in the sum of RM75,000.00, subject to allocatur fee. Suit 643 [353] MDV’s claim against all Defendants is hereby dismissed. [354] The Counterclaim by Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa for collateral abuse of process is hereby dismissed. [355] Costs are awarded as follows: a) Costs of RM75,000 are awarded to ACSB (Antara Commodities (M) Sdn. Bhd.), to be paid by MDV. b) Costs of RM50,000 are awarded to AFI (Asian Food Ingredients Sdn. Bhd.), to be paid by MDV, reflecting AFI’s limited involvement which was confined to approximately one transaction representing approximately 5% of the aggregate Washout Amounts. c) Costs of RM75,000 are awarded jointly to Anbananthan, Jespal, Sushil, and Tan Sri Abi Musa, to be paid by MDV, inclusive of the costs of the dismissed Counterclaim. S/N Ncfrnj/v40Cwy/GF5rhUDg [356] MDV’s claim against PNC (in liquidation) and PGC (in liquidation) is similarly dismissed. No order as to costs is made in respect of PNC and PGC given their status in liquidation. 25 March 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: Suit 300 For the Plaintiff: Kumar Kanagasingam (Chia Oh Sheng, Wong Han Wey, Kelly Soo Jia Qi and Sasithra Avadiar with him) (Messrs Lee Hishammuddin Allen & Gledhill) For the Defendants: Mavin Thillainathan (Afiqah Aina Zakirah with him) (Messrs Lavania Balan Chambers) S/N Ncfrnj/v40Cwy/GF5rhUDg Suit 643 For the Plaintiff: Kumar Kanagasingam (Chia Oh Sheng, Wong Han Wey, Kelly Soo Jia Qi and Sasithra Avadiar with him) (Messrs Lee Hishammuddin Allen & Gledhill) For the 3rd Defendant: Trevor George De Silva (Yeow Tze Yi with him) (Messrs Yeow & Partners) For the 4th Defendant: Harikannan Ragavan (Barvina Punnusamy with him) (Messrs Jayadeep Hari & Jamil) For the 5th to 8th Defendants: Mavin Thillainathan (Afiqah Aina Zakirah with him) (Messrs Lavania & Balan Chambers)