Mohammed Shabaz Khan v Crest Worldwide Resources Sdn Bhd (In Liquidation) (WA-24NCvC-4976-12/2024)

CREST WORLDWIDE RESOURCES SDN BHD (IN WINDING) (Company No: 701381-H)

SHAMIR KUMAR NANDY (NRIC No: 640107-01-5479 …DEFENDANTS 03/06/2026 09:48:29 WA-24NCvC-4976-12/2024 Kand. 60 S/N gVuqbwz/gk25nmfKd0cyeg

This judgment concerns the second defendant’s application by way of notice of application in enclosure 7. By that application, the second defendant, seeks two forms of reliefs. The first is that the originating summons be struck out in its entirety. The second, advanced in the alternative, is that paragraphs 27 to 33 of the plaintiff’s affidavit in support dated 9 December 2024 be expunged.

Although the present application is procedural in form, the dispute from which it arises has its origins in a series of transactions involving a single property, a unit situated on the 29th floor of the Crest Residence which, through a curious sequence of commercial dealings, appears to have been sold, pledged, and resold in a manner that the precise legal effect now falls to be examine. The present dispute is the legal consequence of that sequence of events.

The second defendant’s application is advanced on two principal grounds. First, it is said that the substantive relief sought by the plaintiff has become academic following the second defendant’s purported withdrawal of his claim to the property. On that footing, it is contended that the originating summons ought no longer to be maintained. Secondly, the second defendant argues that the impugned paragraphs of the S/N gVuqbwz/gk25nmfKd0cyeg affidavit are scandalous, irrelevant, and oppressive, and should therefore be struck out.

The first defendant, Crest Worldwide Resources Sdn Bhd (in liquidation), acting through its liquidator, opposes the application. It contends that the second defendant remains a necessary party to the proceedings and that the issues raised in the originating summons cannot be properly adjudicated in his absence.

The present judgment must also be read in the context of the ruling delivered by this Court on 2 December 2025, whereby the second defendant’s application for security for costs was allowed and the plaintiff was ordered to furnish security in the sum of RM25,000. In that earlier decision, I had made a preliminary observation that the peculiar circumstances surrounding the second defendant’s shifting stance on the ownership of the Property might have arisen from a genuine misapprehension. The matter now returns before the Court in a different procedural posture. It falls to this Court to examine the materials presently before it by peeling back the layers of this commercial onion to determine whether the core of the plaintiff’s claim discloses a dispute that properly warrants judicial determination, or whether it, like the second defendant’s initial claim to the property, is merely a mistake. S/N gVuqbwz/gk25nmfKd0cyeg

The factual matrix of this dispute requires careful and methodical examination, for it is in the chronology of events that the competing claims of the parties must ultimately be tested. The narrative begins with the plaintiff, a citizen of the United Kingdom, who sought to acquire a residential property known as Unit A-29-01, Crest Residence ("the Property"). What began as an apparently straightforward purchase has since evolved into a dispute of rather greater complexity.

The genesis of this dispute traces back to a consent judgment recorded on 1 April 2015 in High Court Suit No. 22NCvC-115- 03/2014 (“the Consent Judgment”). Pursuant to the Consent Judgment, the first defendant, Crest Worldwide Resources Sdn Bhd (in liquidation) ("Crest"), agreed to sell the Property to the plaintiff. A sale and purchase agreement was subsequently executed between the plaintiff and Crest ("the Shabaz’s SPA"). Although the Shabaz’s SPA bears the date 27 July 2015, the plaintiff avers that he had in fact signed the agreement several days prior to 21 May 2015 and had, at that time, paid the purchase price in full.

At the material time, the second defendant, was the managing director and, as the evidence suggests, the controlling mind behind the company affairs. It was the second defendant who executed the Shabaz’s SPA on behalf of Crest. S/N gVuqbwz/gk25nmfKd0cyeg

Yet, even as that agreement was being brought into existence, a competing transaction was already taking shape. According to the plaintiff’s case, within days of the execution of the Shabaz’s SPA, the second defendant, now acting in his personal capacity, caused Crest to enter into another sale and purchase agreement dated 21 May 2015 (“the Shamir’s SPA”). By that agreement, Crest purportedly sold the very same Property to the second defendant himself.

The second defendant did not merely allow that arrangement to remain dormant. On the evidence presently before the Court, he proceeded to act upon it. The second defendant assigned his rights, title and interest in the Property to SME Development Bank Malaysia Berhad ("SME Bank") as security for a loan facility. The matter did not end there. The materials placed before the Court reveal that in or around August 2017, while Crest was still under his control, the second defendant offered the Property to UBB Amanah Berhad ("UBB Amanah") for the sum of RM827,400. Notably, UBB Amanah was instructed to remit the purchase price not to Crest, but to a third-party, Pembinaan Gagah Mashyur Sdn Bhd.

The consequence of these transactions, as both the plaintiff and first defendant contend, is that the Property became the subject matter of what has been described as a “triple dealing”. In essence, the same property was first sold to the plaintiff, thereafter sold or pledged to the second defendant, and subsequently pledged or offered for sale to UBB Amanah. S/N gVuqbwz/gk25nmfKd0cyeg

Matters took a further turn when Crest was wound up on 19 September 2019 pursuant to a petition presented by the second defendant himself. Following the winding-up order, Miss Chan Siew Mei (“the Liquidator”) was appointed as liquidator of the company. In the course of the winding-up proceedings, the Liquidator sought the examination of the second defendant. In response to written interrogatories affirmed on 26 August 2022, the second defendant maintained the validity of the Shamir’s SPA. He asserted that the plaintiff had merely acted as a nominee for related companies and that the purchase price stated in the Shamir’s SPA had been set off against a loan allegedly owed by Crest to him.

The position adopted by the second defendant appears, however, to have undergone a striking transformation following the commencement of the present proceedings. In his affidavit in reply dated 23 January 2025, the second defendant now asserts that his earlier claims, including letters issued by his solicitors threatening to enforce the Shamir’s SPA, were made under a mistake. He states that he had not realised that the property referred to in those communications was the same property that formed the subject of the Consent Judgment. The second defendant now disavows any interest in the Property. He further states that he instructed his solicitors to make enquiries with the Crest management office regarding the ownership of the Property. On 9 January 2025, the management office responded by email indicating that the registered owner was the plaintiff. S/N gVuqbwz/gk25nmfKd0cyeg

Armed with that confirmation, and relying upon his own assertion that his earlier position was founded upon a misunderstanding, the second defendant now contends that the present proceedings against him have become wholly academic. On that footing, he argues that the claim against him is vexatious, an abuse of process, and liable to be struck out. Whether that contention can properly be sustained is the question which the Court must now address.

The second defendant’s case proceeds on the footing that the dispute between himself and the plaintiff has effectively evaporated. He submits that the plaintiff’s claim is now moot. In his affidavit evidence, the second defendant asserts that he has unequivocally disclaimed any title, or interest in the Property. On that premise, he contends that there is no longer any live controversy requiring adjudication by the Court.

In advancing that argument, the second defendant invokes the maxim nemo dat quod non habet, contending that one cannot confer that which one does not possess. Since he now accepts that the plaintiff is the owner of the Property and asserts that he lays no claim to it, the second defendant argues that there is no longer any juridical dispute between the parties. The Court is therefore urged to bring the proceedings to an end by striking out the originating summons in its entirety. S/N gVuqbwz/gk25nmfKd0cyeg

The second limb of the application concerns paragraphs 27 to 33 of the plaintiff’s affidavit in support dated 9 December 2024. The second defendant submits that those paragraphs ought to be expunged on the ground that they are scandalous, irrelevant, and oppressive. In essence, the impugned passages allege, among other matters, that the second defendant engaged in fraudulent conduct in relation to the Property, that he had assigned his purported interest to UBB Amanah without authority, and that the proceeds arising from the dealings were misappropriated.

The second defendant contends that these allegations ought not to remain on the record for three principal reasons. First, he submits that they are irrelevant to the issue of ownership, which he now concedes in favour of the plaintiff. Secondly, he argues that the allegations are founded on hearsay, in that the plaintiff relies upon documents obtained through the Liquidator’s investigations rather than on matters within the plaintiff’s own knowledge. Thirdly, the second defendant maintains that the matters are sub judice. He points out that they form part of the subject matter of an examination application pursued by the Liquidator, and that an appeal concerning that examination is presently pending before the Court of Appeal.

The second defendant also takes objection to the participation of the first defendant in resisting the present application. It is argued that Crest has no locus standi to oppose a striking-out application, which is said to concern only the plaintiff and the S/N gVuqbwz/gk25nmfKd0cyeg second defendant. According to the second defendant, the determination of whether the originating summons should be struck out does not affect the rights or interest of Crest and the company ought therefore not to be heard on the matter.

The plaintiff resists the application in emphatic terms. His primary contention is that the second defendant cannot be permitted to approbate and reprobate in the manner now suggested. The plaintiff draws attention to the fact that in August 2022, in response to interrogatories posed in the course of the winding-up proceedings, the second defendant had sworn to the validity of the Shamir’s SPA and maintained that it represented a genuine transaction by which he acquired rights in the Property. Yet, in his affidavit filed in the present proceedings in January 2025, the second defendant now dismisses that same transaction as having arisen from a mistake. The plaintiff submits that this abrupt change of position is not a mere clarification of an earlier misunderstanding but an attempt to distance the second defendant from the legal consequences of the very transaction he previously asserted.

The plaintiff therefore argues that the second defendant cannot, by a unilateral declaration, render the present proceedings academic. The plaintiff’s case is that the second defendant’s own conduct, most notably the execution of the Shamir’s SPA S/N gVuqbwz/gk25nmfKd0cyeg and the subsequent assignment of his purported interest in the Property to SME Bank, constitutes the very cloud upon the plaintiff’s title which these proceedings seek to dispel. In that sense, the plaintiff submits that the second defendant remains central to the controversy before the Court.

As to the impugned paragraphs of the affidavit, the plaintiff contends that paragraphs 27 to 33 form an integral part of the factual narrative underpinning the claim. Those passages describe the alleged fraudulent dealings surrounding the Property, the existence of the competing sale and purchase agreements, and the assignment said to have been made to SME Bank. Far from being scandalous or oppressive, the plaintiff argues that those matters go directly to the issues in dispute and provide the factual foundation upon which the relief sought in the originating summons rests.

The plaintiff further rejects the suggestion that the impugned material is hearsay. He maintains that the matters deposed to are supported by documentary evidence, including records uncovered during the Liquidator’s investigations. The plaintiff therefore contends that these paragraphs represent material facts relevant to the determination of the dispute and ought properly to remain before the Court.

In support of his position, the plaintiff relies upon the decision of the Federal Court in Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478. It is submitted that the second defendant’s S/N gVuqbwz/gk25nmfKd0cyeg present affidavit, in which he disclaims any interest in the Property, constitutes a judicial admission. On the plaintiff’s argument, such an admission is not a basis upon which the proceedings should be struck out. Rather, it provides a foundation upon which judgment may properly be entered in the plaintiff’s favour.

The first defendant, Crest, through its Liquidator, has appeared for the limited purpose of assisting the Court. The Liquidator opposes the second defendant’s application to strike out the proceedings.

The Liquidator’s position is that the evidence presently before the Court reveals what has been described as a “triple dealing” involving the Property. According to the Liquidator, the Property was first sold to the plaintiff pursuant to the Consent Judgment and the Shabaz’s SPA, subsequently sold to the second defendant under the Shamir’s SPA, and thereafter pledged or offered for sale to UBB Amanah. These overlapping transactions, the Liquidator submits, lie at the heart of the present dispute.

The Liquidator therefore contends that the second defendant’s participation in the proceedings is indispensable. Without a full explanation from the second defendant as to the circumstances surrounding the Shamir’s SPA, the alleged assignment to SME S/N gVuqbwz/gk25nmfKd0cyeg Bank, and the subsequent dealings involving UBB Amanah, the Court would be deprived of the very evidence necessary to properly determine the plaintiff’s claim.

Particular emphasis is placed on the inconsistency in the second defendant’s positions. On the one hand, he had previously maintained, in sworn interrogatories affirmed in 2022, that the Shamir’s SPA was a valid and operative transaction. On the other hand, in the present proceedings he now characterises that same transaction as having arisen from a mistake. The Liquidator submits that these contradictory positions reinforce, rather than diminish, the necessity of the second defendant remaining a party to the proceedings so that the Court may properly inquire into the true nature of the transactions in question.

I now turn to the application itself. It is an application which, in substance, seeks two outcomes of considerable significance. On the one hand, the second defendant asks the Court to terminate the proceedings altogether by striking out the originating summons. On the other, he asks the Court to expunge portions of the plaintiff’s affidavit which describe the very conduct said to have given rise to the dispute. Put somewhat plainly, the application seeks both to close the courtroom door and to remove from the record the narrative that S/N gVuqbwz/gk25nmfKd0cyeg led the parties there. It is therefore necessary to examine each limb of the application with care.

The cornerstone of the second defendant’s application is the contention that the proceedings have become academic. The argument proceeds in this way: since the second defendant now accepts that the plaintiff is the owner of the Property and disclaims any personal interest in it, there is said to be no longer any live dispute between the parties. On that basis, the Court is invited to strike out the originating summons as moot.

With respect, I am unable to accept that submission. The argument rests upon the assumption that a dispute ceases to exist the moment one party elects to withdraw from the position previously asserted. The law does not operate in so convenient a fashion. The present proceedings arise precisely because of the second defendant’s earlier conduct, namely the execution of the Shamir’s SPA and the subsequent assignment of his purported interest in the Property to SME Bank. Those acts did not merely create a theoretical dispute, they created tangible legal consequences which cannot simply be undone by a later assertion of mistake.

It is well established that the jurisdiction to strike out proceedings is one that must be exercised with considerable caution. It is a summary procedure intended to dispose of cases S/N gVuqbwz/gk25nmfKd0cyeg which are plainly unsustainable, not to resolve disputes involving contested facts or complex commercial dealings. The Federal Court in Tan Wei Hong & Ors v Malaysia Airlines Berhad [2018] 6 MLRA 433 undertook a comprehensive review of the authorities and reaffirmed the principles articulated earlier in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 1 MLRA 611. The court summarised the applicable principles as follows: “[17] The tests for striking out application under O 18 r 19 of the ROC as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia, as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 of the ROC; and

the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” S/N gVuqbwz/gk25nmfKd0cyeg [Emphasis is mine]

The Federal Court further observed that the basic test is that the claim, on its face, must be obviously unsustainable. The emphasis is not only on the word unsustainable but also on the word obviously. As the Federal Court explained: “[19] The basis test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’, ie, the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial.” [Emphasis is mine]

Measured against that standard, the plaintiff’s claim is plainly not one that can be described as unsustainable. On the contrary, the material before the Court reveals that the second defendant himself executed the Shamir’s SPA and thereafter assigned his purported interest in the Property to SME Bank. Those actions form the very basis of the plaintiff’s complaint. The plaintiff seeks, among other reliefs, a declaration that the Shamir’s SPA is void and ineffective. The second defendant, S/N gVuqbwz/gk25nmfKd0cyeg being the person who executed that document and derived rights under it, is plainly a necessary party to the proceedings.

The existence of the assignment to SME Bank further underscores the point. An assignment of that nature creates a legal encumbrance which cannot simply be wished away by the unilateral assertion of one party. Whether the Shamir’s SPA was valid, whether the assignment flowed lawfully from it, and what legal consequences follow from those dealings are matters which require judicial determination. The second defendant cannot, by simply declaring the earlier transaction to have been a mistake, dissolve the legal consequences that flowed from it. The Court must adjudicate on its validity.

There is a further difficulty with the second defendant’s position. The evidence demonstrates that his stance has shifted markedly over time. In his sworn responses to interrogatories in August 2022, the second defendant firmly maintained the validity of the Shamir’s SPA and asserted that the plaintiff was merely a nominee. In the present proceedings, however, the second defendant now disavows that same transaction and characterises it as the product of a misunderstanding.

That sequence of events brings into sharp focus the well-established principle that a party cannot approbate and reprobate. In StarMax Century Sdn Bhd & Anor v Cuckoo International (Mal) Sdn Bhd & Anor [2025] MLJU 1130, the Court adopted the following passage: S/N gVuqbwz/gk25nmfKd0cyeg “[50] Cuckoo pleaded in its counterclaim, that its counterclaim is brought because Starmax and Stella had filed the claim for the refund of the RM535,313.80 (A p 117 para 31). It defended the claim for the refund on the ground that Starmax and Stella had admitted to the misconduct and a settlement was arrived with them to effect payment of a negotiated sum after its Sales Planning Department had verified the amount. [51] Thus, with I having found that a settlement had been arrived at on the irregular sales made by Starmax and Stella and that they have effected full payment of the amount verified and confirmed by Cuckoo, Cuckoo's counterclaim has no legs to stand on. [52] In other words, Cuckoo cannot reopen the accounts for irregular sales. To allow Cuckoo to do so will amount to it approbating and reprobating or blowing hot and cold when it had fought Starmax's and Stella's claim for the refund of RM535,313.80 on the premise that there was an admission of misconduct and agreement was arrived at on the amount to be paid back. [53] This Court had in Felcra Berhad v. Adli Sharidan Sahar &Ors [2024] 6 MLRH 13 (HC) at para 33 said: "[33] D2, D3 and D7 cannot be allowed to resile from such an admission. To allow them to do so would be akin to them approbating and reprobating or blowing hot and cold before different courts, which the court would not countenance. See also Cheah Theam Kheng v. City Centre Sdn Bhd &Other Appeals [2011] 2 MLRA 660; [2012] 2 MLRA 125; [2012] 1 MLJ 761; [2012] 2 CLJ 16 (CA) at para [105] where the Court of Appeal cited and adopted the following words of Sir Nicolas Browne-Wilkinson VC S/N gVuqbwz/gk25nmfKd0cyeg in Express Newspapers Plc v. News (UK) Ltd and Others [1990] 3 All ER 376 at pp 383-384: "There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance." [Emphasis is mine]

In my judgment, that principle applies squarely to the present circumstances. The second defendant elected in 2022 to maintain that the Shamir’s SPA was valid and operative. He asserted rights under that agreement and explained the transaction as a set-off against a debt allegedly owed to him by Crest. Having maintained that position for a considerable period of time, the second defendant cannot now, when faced with litigation, simply abandon that stance and contend that the entire matter was the product of a mistake. The law does not permit a party to adopt such inconsistent positions when it suits his convenience.

The submissions of the Liquidator reinforce this conclusion. The Liquidator has drawn attention to the sequence of transactions involving the Property, the sale to the plaintiff, the purported sale to the second defendant, and the subsequent dealings S/N gVuqbwz/gk25nmfKd0cyeg involving UBB Amanah. These overlapping transactions form a web of commercial dealings which cannot be unravelled without the participation of the second defendant, who was centrally involved in each of them.

I also note the significance of the second defendant’s present admission that he has no interest in the Property and that the earlier transaction was a mistake. Far from rendering the proceedings academic, such an admission may carry important legal consequences. In Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478, the Federal Court held: “[16] The above averment was in response to para 12 of the statement of claim wherein the appellants averred that the company and the respondent had confirmed in writing of the amount owing and payable to them. It is trite law that a judicial admission made in a pleading stand on a higher footing than evidentiary admission (Sarkar’s Law of Evidence) with the respondent’s admission therein be made the foundation of the rights of the parties (Satish Mohan Bilal v State of UP AIR 1986 All 126, at p 128; 1985 All CJ 507). Any failure on the part of the respondent to rebut the admission to avoid the legal consequences of his admission would entitle the appellants to enter judgment against him.” [Emphasis is mine]

The second defendant’s present position, that the Shamir’s SPA was executed under a mistake and that he has no interest in the Property is, in substance, an admission that the transaction he S/N gVuqbwz/gk25nmfKd0cyeg previously relied upon cannot stand. That admission does not extinguish the plaintiff’s claim. On the contrary, it strengthens it. It provides a foundation upon which the plaintiff may seek the declaratory relief necessary to clear the cloud cast upon his title.

There is, moreover, a further difficulty with the second defendant’s contention that the proceedings have become academic. The argument focuses narrowly on the question of ownership while overlooking the broader scope of the relief sought in the originating summons. The plaintiff does not merely seek a declaration as to title. He also claims consequential relief, including damages and loss of rental from the date of completion until the delivery of vacant possession. It is well recognised that a concession on liability or on a discrete legal issue does not automatically render an action academic where claims for damages or other consequential relief remain unresolved.

The evidence discloses that the second defendant executed Shamir’s SPA despite having executed the Shabaz’s SPA only days earlier. He thereafter proceeded to assign the unit to SME Bank. These actions, the plaintiff alleges, were fraudulent or, at the very least, wrongful acts that obstructed the plaintiff’s quiet enjoyment of the Property. The fact that the second defendant now characterises the matter as a mistake does not erase the history of his conduct between 2015 and 2023, during which the plaintiff was deprived of his vacant possession. The claim for damages remains a live issue. To strike out the proceedings at S/N gVuqbwz/gk25nmfKd0cyeg this stage would deny the plaintiff the opportunity to ventilate the extent of his losses said to have occasioned by the second defendant’s conduct.

In those circumstances, the proceedings cannot sensibly be described as academic. The plaintiff remains entitled to a judicial determination of the validity of the Shamir’s SPA and the legal consequences arising from the assignment to SME Bank, as well as the damages said to flow from those events. The presence of the second defendant in the proceedings is therefore indispensable. The application to strike out the originating summons must accordingly fail.

The second defendant seeks to expunge paragraphs 27 to 33 of the plaintiff’s affidavit in support. These paragraphs set out the circumstances surrounding the execution of the Shamir’s SPA, the subsequent assignment to SME Bank, and the further dealings said to involved UBB Amanah. The second defendant contends that the passages are irrelevant, scandalous, oppressive, and constitute hearsay.

Having carefully considered the submissions, I find this aspect of the application to be equally devoid of merit. The governing principles are well settled. The mere fact that an allegation may be uncomfortable or embarrassing to the party against whom it is made does not render it scandalous in the legal sense. The S/N gVuqbwz/gk25nmfKd0cyeg question is whether the material is wholly unnecessary or irrelevant to the determination of the issues before the Court.

The impugned paragraphs are plainly relevant to the issues raised in the originating summons. The plaintiff’s claim for declaratory relief is inextricably connected with the validity of the Shamir’s SPA and the legal consequences of the assignment said to have been made to SME Bank. If the Shamir’s SPA were to be regarded as valid, the plaintiff’s claim might well fail or be significantly curtailed. Conversely, if it is found to be invalid, the plaintiff’s entitlement to the declaratory relief sought would be considerably strengthened. Paragraphs 27 to 33 therefore form part of the factual narrative explaining how the competing claims to the Property came into existence.

Those paragraphs also provide the factual basis for the plaintiff’s allegations that the Property became the subject of multiple and inconsistent dealings. They refer not only to the Shamir’s SPA and the assignment to SME Bank but also to the alleged subsequent dealings involving UBB Amanah. Far from being extraneous, these matters illuminate the circumstances in which the plaintiff says his title became clouded. They are supported by documentary material, including the relevant sale and purchase agreements and the deed of assignment, which are presently within the possession of the Liquidator.

The second defendant’s reliance on the doctrine of sub judice is likewise misplaced. It is said that the matters described in the S/N gVuqbwz/gk25nmfKd0cyeg impugned paragraphs overlap with issues presently arising in Appeal W-02(A)-1134-06/2022 regarding the second defendant’s oral examination in the winding-up proceedings. On that basis, the second defendant argues that the paragraphs should be excluded from consideration in the present proceedings.

I am unable to accept that contention. As correctly submitted by the Liquidator, the doctrine of sub judice is traditionally concerned with public commentary made outside the courtroom which might prejudice the fair determination of pending proceedings. It is not a principle which operates to exclude relevant evidence in separate but related proceedings before the courts. In Raja Segaran a/l S Krishnan v Bar Council Malaysia & Ors [2000] 1 MLJ 1, the Court explained that: “Dr Sir Hari Singh Gour, the eminent Indian jurist, in his The Penal Law of India (10th Ed) says at p 4172 with regard to the right of the public to comment on the cases and the persons connected therewith: … The right of the public to such discussion, however, only arises when the case is decided and not when in is sub judice, any comment at that stage would be contempt of court as having a tendency to prejudice the due administration of justice.” “KJ Aiyar in his The Law of Contempt of Courts, Legislatures and Public Servants (6th Ed) said at p 323 with regard to sub judice matters as follows: S/N gVuqbwz/gk25nmfKd0cyeg Comments in regard to the merits of a pending case, whether they be made in newspaper articles or through leaflets or pamphlets, or criticisms offered on public platforms, or by way of resolutions, etc., should be scrupulously avoided. The fundamental reason behind it is, that the court having seisin of the case will arrive at a conclusion, on the basis of the evidence and materials that will be placed on record by the parties to a litigation. Extraneous comments, based mostly on surmises or unauthorised versions furnished by interested parties, are of no avail, when the matter is to be adjudicated upon in a court of law. Such extraneous comments may have the mischief of harming a party to a case if the comments have a tendency to prejudice mankind in favour of one party and against the interests of the rival party to the case which is already in court for disposal of merits.” [Emphasis is mine]

The present case is far removed from such circumstances. The Court is not concerned with extraneous commentary but with evidence placed before it in the course of judicial proceedings. The fact that similar matters may also arise in the context of the winding-up proceedings does not preclude this Court from examining them where they are directly relevant to the issues in dispute.

Indeed, the very overlap of those matters underscores why the paragraphs should remain. The evidence suggests that the second defendant himself advanced different explanations of the same transactions at different stages of the litigation. In the course of the winding-up interrogatories, he maintained that the S/N gVuqbwz/gk25nmfKd0cyeg Shamir’s SPA represented a valid arrangement involving a set-off of indebtedness owed by Crest. In the present proceedings, he now characterises that same transaction as the product of a mistake. The impugned paragraphs form part of the factual foundation upon which those inconsistencies may properly be examined.

In that regard, the principle articulated in StarMax Century (supra) remains apposite. A party cannot adopt mutually inconsistent positions when it suits his purposes. The second defendant cannot, on the one hand, assert the validity of the Shamir’s SPA in one forum while, on the other, contend that any discussion of the same transaction in these proceedings is oppressive or irrelevant.

Nor do I accept the submission that the paragraphs constitute inadmissible hearsay. The plaintiff’s affidavit refers to the existence of documentary records, including the relevant sale and purchase agreements and the deed of assignment. The existence of those documents is not in dispute. Indeed, much of the material referred to originates from the second defendant himself, including the explanations he provided in his interrogatory responses. In those circumstances, the plaintiff is not relying on speculative or unverified allegations but on documentary material and statements attributable to the second defendant. S/N gVuqbwz/gk25nmfKd0cyeg

In truth, the complexity of the transactions involving the Property is not a creation of the plaintiff’s affidavit. It arises from the sequence of dealings undertaken by the second defendant himself. The suggestion that the plaintiff should be precluded from referring to those matters because they may be examined elsewhere would, if accepted, have the effect of sanitising the record in a manner that obscures rather than clarifies the issues before the Court.

For these reasons, I am satisfied that paragraphs 27 to 33 are neither scandalous, irrelevant, oppressive, nor inadmissible. They form part of the factual narrative necessary for the proper adjudication of the dispute and must therefore remain on the record. The application to expunge those paragraphs accordingly fails.

The dispute before the Court, when viewed in its entirety, arises from a sequence of commercial dealings which have cast a discernible shadow over the plaintiff’s title to the Property. Those dealings were not the product of speculation or conjecture, they were transactions undertaken and documented by the parties themselves. The Court is therefore not confronted with an abstract question, but with a concrete legal controversy that calls for adjudication. S/N gVuqbwz/gk25nmfKd0cyeg

For the reasons I have set out above, I am unable to accept the second defendant’s contention that the proceedings have become academic. The plaintiff seeks not merely a declaration of ownership, but also the resolution of the legal consequences flowing from the Shamir’s SPA and the subsequent assignment to SME Bank. Those transactions remain part of the factual and legal landscape of this dispute. The second defendant, having been centrally involved in their creation, cannot now extricate himself from the proceedings by the simple expedient of disclaiming any present interest in the Property. The Court must determine the validity and legal effect of those dealings, and the second defendant remains a necessary party for that purpose.

Equally, I find no merit in the second defendant’s attempt to expunge paragraphs 27 to 33 of the plaintiff’s affidavit. Those passages form part of the factual narrative explaining how the competing transactions involving the Property came into being. They address matters which lie at the very heart of the dispute, including the circumstances surrounding the Shamir’s SPA, the alleged assignment to SME Bank, and the subsequent dealings involving UBB Amanah. They are neither scandalous nor oppressive within the meaning of the law, rather, they constitute relevant material which the Court must consider in order to determine the issues before it.

In short, the application before the Court represents an attempt to terminate the proceedings while simultaneously removing from the record the factual matters that explain why the S/N gVuqbwz/gk25nmfKd0cyeg proceedings were commenced in the first place. The law does not permit such a course. The issues raised in the originating summons remain live and require determination by the Court on their merits.

Accordingly, I make the following orders:

The second defendant’s application in enclosure 7 to strike out the originating summons and/or to expunge paragraphs 27 to 33 of the plaintiff’s affidavit in support is hereby dismissed with costs.

(ii) Costs of the application in the sum of RM12,000 are to be paid by the second defendant to the plaintiff, subject to allocatur. Dated the 31st day of March 2026 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA. S/N gVuqbwz/gk25nmfKd0cyeg Counsel for the Plaintiff : Jeremy Tan Messrs Tan Ah Lak & Co Counsel for the First Defendant : Mong Chung Seng, Chew Sue Peng and Sebastian Lai Yi Kang (Pupil in Chambers) Messrs Lee Hishammuddin Allen & Gledhill Counsel for the Second Defendant : Sudesh Singh Messrs Teja Singh Penesar & Co S/N gVuqbwz/gk25nmfKd0cyeg