MISC Berhad v 1. Market Asia Link Sdn Bhd (Guaman No: D5-22-592-2009)

MARKET ASIA LINK SDN BHD (No. Syarikat: 224777-W)

YAHYA MOHD KHALID … DEFENDAN-DEFENDAN Grounds of Judgment Azizah Nawawi, J: Introduction [1] The plaintiff’s (“MISC”) claim against the defendants is for the sum of USD8,550,684.32. MISC’s claim against the 1st defendant (“MAL”) arises out of the contracts entered between the parties. [2] MISC claim against the 2nd defendant (“Yahya”) is that Yahya, as the alter ego of MAL, should be personally responsible for the said amount. 2 [3] Summary judgment was entered against MAL in the sum of USD8,550,684.32. Subsequently, MAL was wound up. [4] This trial proceeded against Yahya. At the end of the trial, this court finds that MISC has establish its case against Yahya on the balance of probability and judgment was entered against Yahya. The Salient Facts [5] The plaintiff is a public listed company, incorporated in Malaysia with its core business is in the shipping industry. [6] The 1st defendant, Market Asia Ling Sdn Bhd is a private limited company established in 1991. It is a family-owned and family-run business. The 2nd defendant, Yahya Mohd Khalid was at all material times the Managing Director and a majority shareholder of MAL. The rest of MAL’s shares were owned by his wife and two (2) sons. [7] MAL had entered into various fixed term and ad hoc contracts with MISC for the supply of bunker since 2005. Bunker is essentially marine fuel oil for use in ships. MAL would purchase the bunkers from various suppliers around the world to supply to ships owned, operated or chartered by MISC. The terms and conditions of the fixed term contracts, inter alia, are as follows:

that MAL undertook to supply and deliver MISC’s requirement of bunkers at the time and for the quantity as MISC may prescribe in an order issued from time to time; 3

(ii) that payment for the bunkers shall be made within 30 days of MISC receiving MAL original invoice and supporting documents evidencing receipt by MISC’s vessels of the bunkers;

(iii) that MAL shall be liable to and indemnify MISC against any loss or damages sustained, costs, fines, penalties and/or expenses incurred or any liabilities incurred as a result of or in connection with the performance of the contract to the extent that such loss, damages, costs, fines and expenses are caused by or attributable to MAL’s act or omission; and

(iv) that any provision pertaining to promises by one party to indemnify the other or to limitations of liability shall survive any termination, repudiation or other cancellations of the contract. [8] On or around November 2008, MISC received demands and threats from various bunker suppliers, including Avin International Bunkers Supply SA, Bakri International Energy Co. Ltd and O.W Bunker & Trading A/S. They claimed that MAL never paid for the bunker that it purchased which were supplied to MISC vessels. MISC’s vessels were in some instances, arrested. [9] MISC was thus constrained to pay these bunker suppliers although in most of the cases, it had already paid MAL for these purchases. 4 [10] Yahya had held meetings with MISC and signed letters agreeing to MISC paying the affected suppliers directly. Therefore, a sum of USD 8,550,684.32 was disbursed to these suppliers. MISC was however never reimbursed by MAL for these payments. [11] MISC then commenced this action to secure reimbursement for the amounts that it had paid the suppliers of the bunkers. On 22.12.2009, MISC obtained a summary judgment against MAL. MAL’s appeal was dismissed by the Court of Appeal. [12] MAL is now in liquidation. At the time when MISC secured a Mareva Order on 1.4.2009, MAL only had RM120,104.98 in its bank accounts. It was also ascertained that another sum of RM97,664.31 had been removed on 4.3.2009, just prior to the said order, leaving only RM22,440.67 in MAL’s bank accounts. The judgment sum therefore remains unsatisfied. [13] The claim against Yahya is on the basis that at all material times, MAL was under the absolute and effective control and/or direction of Yahya, and that Yahya was the alter ego of MAL. Hence, the plaintiff is seeking an order from this court to lift MAL’s corporate veil in order to do justice between the parties. The Findings of the Court [14] Bearing in mind that the core issue in this case is whether MAL’s corporate veil should be lifted in order for Yahya be made personally liable for the judgment sum of USD 8,550,684.32, this 5 court must first ascertain the principles applicable in lifting the corporate veil. [15] The plaintiff referred to the Supreme Court case of Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97, where it was held that: “…the court would generally lift the corporate veil in order to do justice particularly when an element of fraud is involved although the consequences of lifting the veil would vary according to the circumstances of each case.” [16] The plaintiff also referred to the case of Golden Vale Golf Range & Country Club Sdn Bhd v Hong Huat Enterprise Sdn Bhd (Airport Auto Centre Sdn Bhd & Anor as third parties) [2005] 5 MLJ 64, where the Court stated as follows: “In Abdul Manaf, Anuar J (later CJ(M)) explained at pp 2111 to 2112 that because a company has a legal personality and a separate legal entity of its own distinct from its member or directors, there have been and will be instances where its members or controllers hide behind its corporate entity or are otherwise hidden from the view or shielded by what has come to be described as its corporate veil to manipulate it fraudulently for unjust personal gains, and that in such an exceptional case, the court, in order to do justice, will not hesitate to lift the corporate veil by cutting across the legal 6 boundary of corporate structure in order to see the faces and discover the true identities of these members or controllers who use the company as an extension of themselves and make them personally liable or responsible for the debts and liabilities of the company where the evidence justifies such a remedy.” (emphasis added) [17] The plaintiff also submits on the Court of Appeal decision in Mayban Trustees Bhd v CIMB Bank Bhd and other appeals [2012] 6 MLJ354 where the court had lifted the corporate veil of the company to make the majority shareholder responsible for the acts of the company.In arriving at its decision, the court made the following findings:

“First, it was all so evident that Rafie and Murnina absolutely ruled the roost.”

(ii) “…all major decisions of Pesaka were taken by Rafie, (ii) that the only directors of the Amdac Group of Companies was Rafie and Murnina and Murnina practically owned the entire equity of the Amdac Group of Companies…”

(iii) “Rafie testified that whatever belonged to him belonged to Pesaka, that he and Murnina owned nearly 90% of Pesaka and that he regarded Pesaka as his personal property and or as his family company.” 7

(iv) “The directing minds of Pesaka and the Amdac Group were Rafie and Murnina who had absolute control of those companies at all material times.” [18] Therefore, from the above cases, it is common ground that the courts will only lift the corporate veil of the company if the following elements are established:

that the individual concerned has absolute or effective control over the company and is its directing mind; and

(ii) that where special circumstances exist in order to do justice including circumstances where the company is used for fraudulent purposes for personal gain. [19] As such, premised on the above cases, the parties have agreed to the following issues to be tried:

Whether the 1st Defendant (MAL) was at all material times under the control and/or direction of the 2nd Defendant (Yahya) such that, Yahya can in law be regarded as the alter ego of the 1st Defendant?

(ii) Whether in the circumstances of this case, the corporate veil of MAL ought to be lifted and Yahya be made personally liable for the amount owed by MAL to the plaintiff in the sum of USD8,550,684.32 or its equivalent in Ringgit Malaysia plus interest and costs; and 8

(iii) whether Yahya had knowledge of and/or was directly or indirectly involved in the fraudulent activities and/or conduct in the affairs of MAL. Issue (i) [20] It is not in dispute that Yahya established MAL in 1991. It is also not in dispute that all the shares in MAL are owned by Yahya’s immediate family. Yahya is the largest shareholder of MAL, holding 439,200 or 54.9% shares, while the rests of the shares are owned by his immediate family, namely:

Dannio bin Yahya (son) 240,000 (30%)

(ii) Shun YuetMui @ Dania bte Abdullah(wife) 72,000 (9%)

(iii) Jannio Shun bin Yahya (son) 48,800 (6.1%) [21] Yahya had always been the Managing Director of MAL. The other directors of MAL are Yahya’s wife, his son and Nordin Sulaiman, the person who only deals with public relations. Yahya’s wife however, was not involved in the management of MAL as she was a housewife, whilst his son was only 19 years old when he was appointed a director. In his evidence, Yahya agreed that he is the person having control over MAL and its business activities: Jadi di dalam hal keadaan ini En Yahya, orang yang membuat atau individu yang membuat keputusan-keputusan di dalam syarikat Market Asia Link dan mengarah hala tujuans yarikat sudah tentu EnYahya sendiri, betul? 9 Betul.” (see pg 393/NOP) [22] Yahya also employed several of his family members to work at MAL. Siti Hajar, who was the Head of Operations and Special Assistant to the Managing Director, is Yahya’s sister. Mohd Yazid Mohd Khalid, who was the Head of Technical and Operation, is Yahya’s brother. Mohd Syukor Mohd Khalid, who was the Operation Executive, is also Yahya’s brother. As such, I agree with the plaintiff that Yahya helmed MAL with his immediate family members in key positions. [23] With regards to MAL’s finances, Yahya signed the statutory accounts as the director primarily responsible for the financial management of MAL. He was given daily reports of the cash flow of MAL from the operations side. Yahya is also the sole signatory for all of MAL’s bank accounts. In fact, almost all of the cheques that were disclosed by Affin Bank pursuant to the discovery order dated 2.3.2016 contained Yahya’s signature. Therefore, I am of the considered opinion that in respect of the financial aspects of MAL, Yahya was in absolute control. [24] Yahya also gave evidence that MISC was MAL’s only client. Yahya was the person who had met with the management of MISC to secure and maintain MISC as a client of MAL. Yahya was also the person who had personally met with the senior officers from Affin Bank to secure the necessary credit facilities for MAL. In fact, when MAL underwent a crisis, it was Yahya who personally met the bankers and MISC’s representatives in an 10 attempt to resolve the matter after the demands from the bunker suppliers surfaced. It was Yahya who had signed the letters agreeing to MISC paying the affected suppliers directly. [25] Therefore, I am of the considered opinion and I agree with the plaintiff that Yahya was indeed in control of all material aspects of MAL’s affairs. The evidence of the plaintiff’s witnesses who had personally dealt with MAL said that only Yahya acted for MAL in their meetings and that Yahya is the one in control of MAL who made all the decisions relating to the company. [26] In fact, Yahya himself does not deny being in control of MAL. Dan Lembaga Pengarah bagi Market Asia Link juga dikuasai oleh En Yahya dan ahli-ahli keluarga EnYahyaya? Betul. Semenjak Market Asia Link ditubuhkan pada tahun 1991, En Yahya seorang sahaja yang menjadi Pengarah Urusan Syarikat Market Asia Link, betul? Betul. Jadi En Yahya sentiasa mengetuai ahli atau mengetuai Lembaga Pengarah Market Asia Link, betul? Waktu itu, betul.” (see page 388/NOP) 11 Jadihal-hal kawalan mengenai operasi dan pengurusan bukan PR ya hal-hal operasi dan pengurusan Market Asia Link adalah di bawah kawalan En Yahya? Betul.” (see page 391/NOP) [27] Therefore, having considered all the evidence before this court, I find that MAL, which was established by Yahya, was under the full control of Yahya. Yahya was also in full control of MAL’s finance and operations. Yahya is the sole signatory to all of MAL accounts. Yahya had secured the contract with MISC as well as the credit facilities with Affin Bank. As such, I find that MAL was under the control and/or direction of Yahya and that Yahya was the alter ego of MAL. Issues (ii) and (iii) [28] The circumstances where the corporate veil of the company can be lifted to attach the liability of the company to its directors can be seen from the following cases. In the case of Law Kam Loy v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355, the Court of Appeal underlined the principle as follows: “In my judgment, in the light of the more recent authorities such as Adams v. Cape Industries Plc, it is not open to the courts to disregard the corporate veil purely on the ground that it is in the interests of justice to do so. It is also my respectful view that the special circumstances to 12 which Lord Keith referred include cases where there is either actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity”. (emphasis added) [29] The ratio in Law Kam Loy was accepted with approval by the Federal Court in the case of Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73, whereby the Court clearly stated that: “[46] We agree with the Court of Appeal that the learned trial judge erred in lifting the corporate veil of the defendant to make the defendant liable to account to the plaintiff. The reason given by the learned trial judge was that it was in the interest of justice to prevent associated companies of Alcatel Group including the defendant from "darting in and out with the corporate labyrinth" before the court. We also agree with the Court of Appeal that there must be evidence either of actual fraud or some conduct amounting to fraud in equity to justify the lifting of corporate veil. The position of the law on this subject had been clearly stated by Gopal Sri Ram JCA (as he then was) in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 at p. 362…” (emphasis added) 13 [30] In the case of Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381, Gopal Sri Ram FCJ (as he then was) had elaborated the principle to be as follows: “(11) Where there is fraud, an agency relationship or if the company is a myth or fiction, the doctrine of corporate personality will not insulate the shareholders or directors from being assailed directly. A litigant who seeks the court's intervention to pierce the corporate veil must establish special circumstances showing that the company in question is a mere facade concealing the true facts. Fraud includes equitable fraud. However, an intention to deceive - which is a necessary ingredient in common law fraud - is not an ingredient of equitable fraud, which is essentially unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence. The instant case was a case in which there were special circumstances showing that the second respondent company was a mere facade concealing the true facts. The trial judge was therefore correct in holding the second respondent accountable to the appellant for the trust property….” (emphasis added) [31] However, it is the contention of the defendants that in order to lift the corporate veil, the latest test is premised on the Federal Court decision in Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Other Appeals [2015] 1 CLJ 719, 14 where the court held that the court will lift the corporate veil in the following circumstances:

if such corporation was set up for fraudulent purposes; or

(ii) where such corporation was established to avoid an existing obligation; or

(iii) or even to prevent the abuse of corporate personality. [32] The defendant relied on ground (i) and (ii) in Gurbachan’s case and submits that:

that MAL was not established for fraudulent purposes as MAL was performing very well before MISC entered into a contractual relationship with MAL. MISC had made an assessment on MAL and found that MAL had satisfied all the necessary requirements before contracting MAL to supply the bunkers;

(ii) that MAL was not established to avoid an existing obligation as MAL had a successful contractual relationship before the problems came about in 2008, which Yahya blamed on the increase in the price of crude oil; and

(iii) that the defendant did not commit fraud against the plaintiff, MISC, whether in equity or common law. This is because the fraud of RM99 million was committed against Affin Bank. It was Affin Bank that lost the RM99 million and Affin 15 Bank had sued MAL and secured judgment against MAL and its directors; and

(iv) that there was no evidence that Yahya had falsified or was involved in the falsifying of the 46 bunkers delivery notes. [33] I am of the considered opinion there is no issue here that MAL was set up for fraudulent purpose nor was it established in order to avoid an existing obligation. [34] The issue here is on ground (iii) of Gurbachan’s case, that is, whether the corporate veil should be uplifted in order to prevent the abuse of corporate personality. [35] In Gurbachan’s case, on issue (iii), that is to prevent the abuse of corporate veil, the Federal Court has referred to the decision of the House of Lord in Prest v. Prest and others [2013] UKSC 34, where Lord Sumption said as follows: “34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement ….

I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an 16 existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage they would otherwise have obtained by the company’s separate legal personality.” [36] The above principle is consistent with the decision in the case of Takako Sakao case, where the Federal Court held that to uplift the corporate veil, the plaintiff must establish special circumstances showing that the company in question is a mere façade concealing the true facts. [37] Therefore the issue is still whether there are any special circumstances where there are “actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity” showing that MAL is a mere façade concealing the true facts. [38] It is not in dispute that there were fraudulent activities in MAL. There was falsification of the documents submitted to Affin Bank by MAL. MAL had fabricated 46 purported bunker transactions. It created 46 fictitious transactions between MAL and MISC. Changes were made to various documents by employees of MAL. 17 [39] With the falsified documents, MAL had withdrawn funds from the credit facilities that MAL had with Affin Bank. The sum that was involved was over RM99 million. The falsification induced Affin Bank to release this sum into MAL’s bank account. The evidence before this court is that MAL had been falsifying documents for at least the last 2 years. This was based on the testimony of Yahya’s own witness, DW-2: Pemalsuan dokumen-dokumen di syarikat Market Asia Link Puan, permalsuan tersebut sebenarnya bermula lebih awal lagi, ya, daripada tahun lebihkurang 2005. Betulkan? Saya tak pasti. Tak pasti, ya? Tapi boleh Puan sahkan selain daripada pemalsuan dalam tahun 2008, terdapat pemalsuan sebelum, tahun-tahun sebelum ini? Ya. Betul, ya? Betul. Betul. Boleh Puan tolong beri anggaran kepada Mahkamah berapa tahun sudah pemalsuan dilakukan? Anggaran, ya, Puan? Anggaran. Dalam dua tahun lebih.” (see: page 317NOP) [40] Yahya did not dispute the fraudulent activities in MAL. However, he takes the position that he was not involved in the fraud as the falsification of the 46 bunker transactions were committed on the instruction of his sister, Siti Hajar without the knowledge of 18 Yahya. Therefore, Yahya submits that since he had not committed the fraud and was not involved in the fraudulent activities, then this court cannot pierce MAL’s corporate veil. [41] However, it is not in dispute that Yahya knew from MAL’s financial statements that MAL was suffering losses in 2008.Based on its Financial Statement which Yahya had signed, MAL’s net loss for the financial year in 2008 was RM123,207,757.00, and MAL only made a net profit of RM329,742.00 in 2007. [42] Yahya was also aware of MAL’s cash flow problems in 2008. Under cross examination, Yahya said this: ”RES: Dan pada tahun selepasnya iaitu pada tahun 2008, En Yahya, merupakan tahun di mana syarikat Market Asia Link mengalami masalah kewangan, betul? Betul. … RES: Jadi pada tahun 2008, En Yahya, selepas harga bunkers naik, aliran wang memang tidak mencukupi untuk membayar pembekal-pembekal. Betul? Ya.” (see pg 437-438 NOP) [43] Yahya was also aware that Affin Bank had refused to approve MAL’s request for additional credit facilities. At the same time, Yahya was receiving daily cash flow reports regarding MAL’s finances from its employees. As such, Yahya must have known that substantial sums (over RM99 million) were finding its way 19 into MAL’s Account although there were no transactions to support these incoming funds. This can be seen from his evidence: “RES: Soalan saya, semasa En Yahya membuat bayaran RM99 juta kepada pembekal-pembekal, En Yahya tahu syarikat Market Asia Link mengalami masalah aliran wang dan oleh itu sebenarnya tidak cukup untuk membayar pembekal-pembekal. Ok, betul.” (see page 445 NOP) [44] Yahya simply knew that legitimate funds were simply insufficient. “RES: Bermakna En Yahya tahu semasa membuat bayaran RM99 juta itu, wang masuk yang sah tidak mencukupi untuk membuat bayaran, betul? Faham maksud? Betul? Betul. Kerana minyak naik mendadak.” (see page 447 NOP) [45] Therefore, I find that the necessary inference from these facts is that it is highly improbable that Yahya had no inkling that MAL’s employees were falsifying documents to enable extra funds to flow into MAL’s accounts. The employees themselves had nothing to gain from these unlawful acts. [46] Yahya was the one who signed all the documents that were falsified on MAL’s part. Yahya was also the one who had the most to lose if MAL was unable to continue its business as a going concern. This large scale falsification simply could not have 20 been committed by MAL without the authorisation or consent of Yahya, given the control that he had over MAL. [47] A similar inference was upheld by Arifin Zakaria JCA (as he then was) in Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 at 366. The Judge found that the fraudulent misrepresentation could not have been committed by the first defendant without the authorization or consent of the first appellant, who was not only the director and secretary of the first defendants but also held a substantial shareholding in the first defendant company and was in complete control of the company. [48] Therefore, having considered the evidence, I am of the considered opinion that it cannot be said that in view of the magnitude of the fraudulent activities spanning over two years, Yahya is ignorant of the same. Since Yahya is the substantial shareholder of MAL and having complete control over MAL, it is highly improbable that Yahya has no knowledge of the fraudulent activities that was going on for more than 2 years by his sister and the employees of MAL. As such, I find that the fraudulent activities in MAL could not have been committed without the authorization and/or consent and/or knowledge of Yahya. [49] Despite operating on the red, MAL’s financial statements showed that a sum of over RM33 million had been extended as ‘loan to directors’. From the notation in the statements, these ‘loans’ had no fixed term of repayment and were interest free. And during trial, the evidence clearly shows that when these RM33 millions were paid to Yahya, that there were no loan agreements, that 21 these loans were not supported by adequate documentation and that Yahya had not repaid any part of this sum at all. [50] As such, I agree with the plaintiff that under the guise of the ‘loans to directors’, Yahya is simply treating MAL’s monies as his own. And that despite knowing MAL’s financial difficulties and its inability to pay its creditors, Yahya never repaid a single cent of the money he took from MAL’s account under the guise of a ‘loan’. This resulted in MISC having to pay MAL’s suppliers after MAL was being laden with the current substantial debt. [51] Yahya even admitted that part of the monies from Affin Bank, to be used for the bunkers, was used by Yahya for his personal use: …Jadi En Yahya wang dikeluarkan daripada akaun 819 dan digunakan untuk perbelanjaan peribadi En Yahya betul? Betul.” Betul ya. Dan daripada akaun 819 init ermasuk wang yang dibayar oleh Affin Bank selaras dengan kemudahan kredit yang dipohon oleh Market Asia Link betul? Betul. Jadi sebahagian daripada wang yang telahpun di masukkan ke dalam akaun 819 ini oleh Affin Bank digunakan untuk perbelanjaan peribadi EnYahya juga. 22 Betul.” (see pgs 407-408 NOP) [52] Therefore, I agree with the plaintiff that Yahya was treating MAL’s funds like his own. This included the funds that were paid by Affin Bank pursuant to the credit facilities that were supposed to be used to pay MAL’s bunker suppliers.The payments included payments for his credit cards, his son’s school fees and cars. [53] Further, given MAL’s financial statements in 2007 and 2008, it was experiencing cash flow problems and was in financial difficulty at the material time. The balance sheets show that MAL had no reasonable prospect of paying its debts at that time. Notwithstanding this, Yahya continued to purchase bunker that MAL could not afford to pay. [54] Therefore, I am of the considered opinion that this is a case where there is an abuse of corporate legal personality. Yahya had made use of MAL’s funds for his own personal benefit and then hide behind MAL’s corporate legal personality. [55] Another issue raised by Yahya is that MISC is not the victim of the fraud. The fraud was committed on Affin Bank and Affin Bank had since secured a judgment against MAL and it directors. [56] From the authorities cited, there is nothing to indicated that fraud must be committed on MISC, before MISC can commence this action. The Supreme Court in Aspatra Sdn Bhd (supra) has held that “the court would generally lift the corporate veil in order to do 23 justice particularly when an element of fraud is involved…”. What is pertinent is the elements of fraud. In the present case, even though the fraud was not committed on MISC directly, but the fraudulent acts had affected MISC, directly or indirectly. [57] It is not in dispute that it was Yahya who signed letters authorising MISC to make payments directly to the bunker suppliers and are to be reimbursed by MAL. But MAL could not reimburse MISC as Yahya had used MAL’s funds for his own personal use. About RM33 millions of MAL’s funds had been taken out as ‘director’s loan’, which are not supported by documents with no repayments. As such, the effect of the fraud led to the financial collapse of MAL, which resulted, inter alia, in MISC having to take over the contractual responsibilities of MAL and to pay for the bunkers directly and thereby incurring loss in the sum of USD8,550,684.32. [58] In the factual circumstances of this case, I am of the considered opinion that Yahya, being the founder of MAL is also the directing mind and will of MAL. As such, the corporate veil of MAL ought to be lifted and that Yahya should be made personally liable for the amount owed by MAL to MISC in the sum of USD8,550,684.32. [59] With regards to Yahya’s claim for damages incurred due to the Mareva Injunction, there is no basis for such claim as the granting of the injunction was affirmed by the Court of Appeal and Yahya’s application for leave to the Federal Court was refused. In any event, I am also of the considered opinion that the same is not supported by the evidence. 24 [60] Premised on the reasons enumerated above, I find that the plaintiff has proven its case on the balance of probability and the plaintiff’s claim against Yahya is allowed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 6 November 2017 For the Plaintiff : Raja Eileen Soraya Messrs Raja Darryl & Loh Kuala Lumpur. For the 2nd Defendant : Yusfarizal Yusoff and Mohd Zaid Bin Daid Messrs Yusfarizal Aziz & Zaid Kuala Lumpur.