Mw Healthcare Sdn Bhd v Tega Kuantum Sdn Bhd (WA-24IP-45-12/2024)

This is an Originating Summons (“OS”) filed by the Plaintiff, MW Healthcare Sdn Bhd (“MWH”), to impeach, under s 44 of the Evidence Act 1950 (EA 1950), a judgment of this Court dated 12.3.2024 (“the Impugned Judgment”) in the Kuala Lumpur High Court Civil Suit No WA-22IP-15-02/2020 (“Suit 15”).

The Defendant herein, Tega Kuantum Sdn Bhd (“Tega”), was the plaintiff in Suit 15. MWH was the 1st defendant there, and one Tan Bee Yong (“Heidi”) the 2nd defendant. In Suit 15, this Court found, inter alia, 2! ! that MWH was liable to Tega for passing off and unlawful interference with trade, and that Heidi was liable for unlawful interference with trade. The bulk of MWH’s and Heidi’s counterclaims, including claims based on alleged product contamination, were dismissed.

MWH now invokes s 44 of the EA 1950 and contends that the Judgment was procured by fraud. By this OS, MWH does not seek to set aside the Impugned Judgment in its entirety. It confines itself to prayers to set aside paragraphs (2)–(7) of the Impugned Judgment, being the injunctive relief and the order for damages to be assessed against MWH, together with the consequential assessment proceedings.

Having carefully considered the affidavits, the written submissions and the oral arguments of counsel, I am satisfied that the Plaintiff has not met the stringent threshold for impeaching the Judgment. I dismissed the Plaintiff’s application on 5 November 2025. I now state the reasons for my decision. II. Background

The background facts of this case have been succinctly laid down by the parties in their respective submissions. As stated earlier, Suit 15 was brought by Tega against MWH and Tega’s former company director and General Manager, Ms. Heidi. 3 [6] Tega’s pleaded case in Suit 15 revolved around 3 products sold by Tega (collectively “Tega’s Products”), namely: Version 1 Version 2 Version 3 a. An eye solution called “OGE Bio-Aquacel” (“Version 1”); b. An eye solution called “OGE Bio-Aquacel Plus” (“Version 2”); and c. An eye solution called “OGE Bio-Aqacel Moisturising Mineral Water” (“Version 3”) [7] MWH was Tega’s distributor from 28.4.2017 to 31.1.2020, during which MWH distributed Version 1, Version 2 and Version 3 of Tega’s products. [8] It was also not in dispute that Heidi was Tega’s former company director and General Manager until she was dismissed in October 2019 for removing all the stock of Tega’s Version 2 without permission. 4! ! [9] In early 2020, Tega discovered that following her dismissal, Heidi had collaborated with MWH to produce a rival product called “MW Bio-Aquacell” using a similar formula to that used by Tega to create Version 1, Version 2 and Version 3. MWH distributed some 2,000 free samples of this product while still acting as Tega’s master distributor, and did so using Tega’s standard consignment/delivery forms bearing Tega’s mark.

Hence, on 21.2.2020, Tega initiated Suit 15 against MWH and Heidi alleging trademark infringement of its registered marks, passing off, and unlawful interference with trade.

MWH counterclaimed, inter alia, alleging that Tega’s product (in particular batch 42 of Version 3) was contaminated, that MWH had to recall it, and that it suffered loss. As set out in the learned judge’s GOJ, MWH had counterclaimed against Tega for payment of the following sums, with interest and costs: i. The refund of the sum totalling RM60,000.00 that it had paid to Tega as deposits under the agreements it entered into with Tega (“Deposits”); ii. The sum of RM38,088.00 representing the sums MWH had paid to Tega for Tega's Products which Tega had recalled from MWH (“Recalled Sum 1”); iii. A declaration that Tega take back 1,990 bottles of Tega's Products, which Tega ought to have recalled but failed to, and which had remained in MWH’s 5! ! possession, and pay to MWH the sum of RM35,820.00 representing that product (“Recalled Sum 2”); iv. The sum of RM30,241.00 as special damages, representing MWH's loss of earnings or profit that MWH would have earned from 4,106 bottles of Tega's Products which were contaminated, and which MWH was forced to recall (“Profit Sum”); v. General Damages, Aggravated and Exemplary Damages;

Heidi also counterclaimed that she was entitled to Tega’s trademarks and royalties for allegedly inventing the formula. In the GOJ, the learned Judge also summarised the counterclaim brought by Heidi against Tega claiming as follows: a) Heidi coined the name "Bio-Aqacel" and, as its first user, was therefore entitled to have Tega's trademarks containing the name "Bio-Aqacel" either transferred to her or cancelled, expunged, or removed from the Register of Trademarks ("Trademark Counterclaim"); and b) Heidi had invented the formula for the Bio-Aquacel Blend from which Tega's Products were made, and she was therefore entitled to an account and payment of royalties, production fees and commission from Tega in respect of all sales of Tega's Product (“Formula Counterclaim”), 6! !

On 12.3.2024, this Honourable Court entered the following Judgment in favour of Tega and held inter alia as follows: a. MWH’s mark was not similar to Tega’s trademarks. b. MWH was found liable to Tega for damages to be assessed for passing off. This Court held that, in distributing the rival product using Tega’s consignment form with Tega’s mark prominently displayed, MWH misrepresented an association between its rival product and Tega’s product, thereby committing passing off. c. Heidi was found liable to Tega for damages to be assessed for unlawfully interfering with Tega’s trade. This Court further held that Heidi’s acts in surreptitiously removing stocks of Tega’s product, using Tega’s formula with MWH to launch the rival product, and targeting Tega’s customers, amounted to unlawful interference with Tega’s trade. MWH was likewise liable for unlawful interference. d. MWH’s counterclaim for the return of the Deposits was allowed, but the counterclaim for Recall Sum 1, Recall Sum 2 and Profit Sum were all dismissed; e. Heidi’s counterclaims were both dismissed. 7! ! B. The MDA Notice and the present application

The present OS was filed on 26.12.2024. MWH characterises it as a fresh action to impeach a judgment obtained by fraud.

MWH's case hinges on a single, central piece of new evidence: the Medical Device Authority (MDA) Recall Notice dated 24 August 2023. It is pertinent to highlight that the MDA Notice was issued on 24 August 2023—midway through the 10-day trial. The salient features of the MDA Recall Notice, as described in MWH’s submissions, can be summarized as follows: a) This is a notice issued by the regulator (MDA) regarding a product described as “Bio-Aquacel Eye Safe,” which MWH equates to Version 4, “OGE Bio-Aquacel Lubricant Eye Drops Eye Safe,” marketed by Tega from November 2020 onward. b) The “Reason of Recall” states that the product is “contaminated with an undeclared Germanium that is not registered and approved.” c) It is MWH’s case that the recall is retrospective, covering batches manufactured and distributed from August 2019 to August 2023. 8! ! [16] Learned counsel for MWH contended that this constituted “Critical Evidence” because: a) it purportedly confirms that Tega’s products containing organic Germanium (including Versions 2 and 3) were, in fact, contaminated and unsafe; b) it undermines the Judge’s finding in Suit 15 that there was no contamination at the source and that Tega’s product enjoyed goodwill; and c) it demonstrates that by the time the Judge delivered the Impugned Judgment, and even before the trial concluded, Tega knew its products were subject to a regulatory recall but deliberately chose not to disclose this information to the Court.

The Recall Notice was issued on August 24, 2023—mid-trial. The trial continued thereafter on September 25, 2023; September 26, 2023; September 27, 2023; October 23, 2023; and October 24, 2023. Judgment was delivered on March 12, 2024.

MWH contends that Tega and its solicitors must have known of the Recall Notice during this period, that the Recall Notice was patently material to the contamination and goodwill issues, and that Tega’s failure to disclose it constituted a deliberate suppression of vital evidence, amounting to fraud on the Court. 9! ! [19] Learned counsel for Tega presented a diametrically opposed view, submitting the following: a) The Recall Notice pertains exclusively to Version 4, which was neither pleaded nor relied upon in Suit 15 to establish liability. b) The retrospective effect of the recall does not, without additional evidence, establish that Versions 1–3 were contaminated at the relevant time, much less that the trial Judge’s factual findings were incorrect. c) MWH itself discovered the Recall Notice in or around October 2023 and alleges that it instructed its then solicitors to utilize it in Suit 15; any failure by those solicitors to do so does not constitute "fraud" by Tega. d) In any event, MWH has not demonstrated that any deliberate suppression by Tega prevented MWH from fully presenting its case before the Court, an essential element of fraud under s 44 of the EA

[20] Expanding upon the aforementioned points, learned counsel for Tega forcefully argued that the nine-month delay between the Impugned Judgment and this Originating Summons, coupled with its proximity to the assessment of damages, strongly suggests an attempt to evade the consequences of an unfavorable outcome, rather than a prompt response to discovered fraud. Learned counsel asserted that while MWH's explanation—namely, a change of solicitors and the consequent need for advice—is not inherently implausible, it does little 10! ! to enhance the credibility of what appears to be a carefully orchestrated allegation of fraud. Applicable Legal Standards for impeaching a judgement under s. of the Evidence Act 1950 [21] MWH's decision to pursue a fresh action is consistent with the position adopted by our Courts: a judgment alleged to be tainted by fraud must be challenged through independent proceedings, rather than through an application within the original suit. The Federal Court articulated this point succinctly in Hock Hua Bank Bhd v Sahari bin Murid [1980] CLJU 92: “But… if a judgment or order has been obtained by fraud or where evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment.” [22] The principles governing the impeachment of judgments are well-established. The Court of Appeal comprehensively outlined these principles in Yow Man Kong @ SenthilKumar v Ghandirajan a/l Arjunan & Anor [2023] 5 MLJ 64: "A judgment may only be impeached in limited and exceptional circumstances and the burden lies on the plaintiff to prove the existence of such exceptional circumstances with cogent and credible evidence." 11! ! [23] Two corollaries follow. First, res judicata does not bar a properly constituted suit to set aside a judgment for fraud (see Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321). Second, the "reasonable diligence" requirement for post-judgment fresh-evidence applications is inapplicable where fraud is alleged. As Azizul Azmi Adnan J (as he then was) explained in Professor Emeritus Dr Azman bin Awang & Anor v FSBM CTech Sdn Bhd & Anor [2021] CLJU 36: “[36] Thus a litigant is entitled to have a prior judgment set aside if he or she can show that it had been obtained by fraud. He or she need not establish that the fresh evidence that was sought to be relied upon could not have been obtained with reasonable diligence… … [44] Fraud unravels all. It need not be established that the evidence of fraud could not have been obtained before the first trial by the exercise of reasonable diligence…” [24] Similarly, it was held in HSBC Bank Malaysia Bhd v Jakara Sdn Bhd [2023] CLJU 189 that once fraud is proven, it is no defence to argue that the innocent party, with greater diligence, could have uncovered it sooner. The court in HSBC Bank Malaysia Bhd held that a wrongdoer cannot evade sanction by claiming they could have been caught had the other party been more vigilant. Parties who invoke the court’s process are expected to act with the utmost probity; anything less undermines the administration of justice. [25] The Supreme Court of India in SP Chengalvaraya Naidu (d) v Jagannath (d) AIR 1994 SC 853 cautioned that the principle of finality must not become an engine of fraud. Litigants must come to court with clean hands; the process is not a lever for the unscrupulous to retain 12! ! ill-gotten advantage. Where a case rests on falsehood, the court is entitled to say—at any stage—that such a party has no right to relief. [26] Our Court of Appeal in Chee Pok Choy applied this principle at home. A party moving the court bears a duty of uberrima fides. One who practises a serious deception upon the court cannot be permitted to profit by it: ! “…As a litigant moving the court, it was incumbent for the respondent to display uberrimae fides… The respondent having actively practised a serious deception upon the court, ought it to have benefit of the judgment it had obtained? I think not… the respondent should not be permitted to profit from the fraud it perpetrated on the court…” (emphasis added) ! [27] In Satish Chandra Chatterji, Since Deceased (Now Represented by Bon Behari Chatterji and Others) v. Kumar Satish Kantha Roy and Others [(1923) 2 MLJ 363], the Privy Council emphasized that allegations of fraud and collusion must be proven by those who make them—proven by established facts or by inferences legitimately drawn from the totality of those facts. Suspicion, surmise, and conjecture are no substitutes. [28] Section 44 of the EA 1950 permits a party to challenge the validity of a judgment on grounds, inter alia, of fraud. But because finality in litigation is itself a matter of high public importance, the courts have consistently insisted that this exceptional jurisdiction is to be exercised sparingly and only on a clear and cogent showing of actual fraud. [29] In Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1 (“Seruan Gemilang”), the 13! ! Federal Court held that the “fraud” in s 44 refers to “actual fraud and not constructive fraud”, and that it must be “actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance” of matters which should have been disclosed. The Federal Court drew the imperative that general allegations or mere irregularities are insufficient; the fraud must be particularised, and it must be shown how, when, where and in what manner it was perpetrated. In Seruan Gemilang the Federal Court held as follows: “[39] Our view is that the fraud of which s44 of the Act speaks refers to an actual fraud and not constructive fraud ie fraud practised by the other side must have prevented the respondents from placing their case before the court. [40] The fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance (see Patch v Ward). [41] The earlier judgment cannot be impeached or set aside on a mere general allegation of fraud. It must be shown with sufficient details how, when, where and in what way the alleged fraud was committed.” [30] Similarly, in Chee Pok Choy, the Court of Appeal, drawing on Lord Cairns’s classic statement in Patch v Ward, stressed that the requisite fraud must evince a malus animus—a dishonest state of mind—put in motion “for the purpose of actually and knowingly defrauding” the other party, and that a mere overstatement of rights or reliance on an arguable position will not suffice. In Chee Pok Choy, the Court of Appeal held: 14! ! “In a later passage, Whitley J quoted the following statement of law relating to the degree of proof of fraud by Lord Cairns in Patch v Ward (1867) 3 Ch App 203 at p 207: The fraud there spoken of must clearly, as it seems to me, be actual fraud, such that there is on, the part of the person chargeable with it the malus animus, the mala mens putting itself in motion and acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him… I apprehend the fraud, therefore, must be fraud which you can explain and define upon the face of a decree, and that mere irregularity, or the insisting upon rights which, upon a due investigation of those rights, might be found to be overstated or overestimated, is not the kind of fraud which will authorise the court to set aside a solemn decision which has assumed the form of a decree signed and enrolled.” [Emphasis is mine] [31] In Seng Huat Hang Sdn Bhd & Ors v Chee Seng & Co Sdn Bhd [1987] 1 MLJ 413 (“Seng Huat Hang”), Edgar Joseph Jr J distilled these principles and further emphasised that there can be no wilful concealment amounting to fraud unless there was, in the first place, a legal duty to make the disclosure alleged, and that the plaintiff must also explain why the matters now relied upon could not have been brought forward in the original proceedings. The High Court in Seng Huat Hang Sdn Bhd held as follows: This last point comes in for emphasis in Patch v Ward (1867) 3 Ch App 203 and in the New Zealand Case of Giffen v Leggatt (1902) 2 NZLR 427. In Patch's case, Lord Cairns said this at page 207: “…The fraud there spoken of must clearly, as it seems to me, be actual fraud, such that there is on the part of the person chargeable with it the malus animus, the mala mens putting itself in motion and acting in order to take an undue advantage of some other person for 15! ! the purpose of actually and knowingly defrauding him …” A little further down on the same page, he said this: “…I apprehend the fraud, therefore, must be fraud which you can explain and define upon the face of a decree, and that mere irregularity, or the insisting upon rights which, upon a due investigation of those rights, might be found to be overstated or overestimated, is not the kind of fraud which will authorize the Court to set aside a solemn decision which has assumed the form of a decree signed and enrolled.” And, at page 212, Rolt, L.J. said this: “…the fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient - …” (Emphasis supplied). In Giffen's case, Williams, J. said this at page 430: “…The Warden (Mr. McCarthy) has decided that there was a duty to make the disclosure; that, even if there was not, the non-disclosure put a wrong complexion on the matter, and would so mislead the Warden before whom the application was made. The Act, however, requires that in order to set aside a title it must appear that the title was obtained by fraudulent misrepresentation, and the simple question is whether upon the facts there was fraudulent misrepresentation. If there was not, then a mere breach of duty by non-representation is not sufficient to set aside a title, even if a duty to represent exists, unless the party obtaining the title actually knew such to be his duty, and wilfully abstained from performing his duty.” … Also of importance is the fact that the plaintiff must always explain why the matters alleged could not have been brought forward in the original proceedings. In Birch v. Birch (supra) it was held that there must be a 16! ! suggestion in the statement of claim, if it is to escape being struck out as being frivolous and vexatious, of such facts, only discovered since the trial, as if proved, would render it reasonably probable that the judgment would be upset, though the facts suggested need not necessarily be such as would have been evidence at the trial per Vaughan Williams, L.J. at pages 136, 137. (Emphasis added) … Having regard to the authorities cited above, it seemed to me, that two further questions arose for decision. I would state them thus:

Was there any evidence of deliberate fraud on the part of the present defendant, as alleged or at all?

If so, could it have been discovered and exposed either in the Magistrate's Court Actions or, at the hearing of the application to set aside the default judgment or, on the appeal before me from the refusal of the learned Magistrate to do so? … Clearly, there cannot be wilful concealment amounting to fraud unless there was in the first place a duty imposed by law upon the party concerned to make the disclosure alleged. [Emphasis is ours] [32] The above authorities I have discussed collectively establish that: i. First, the “fraud” spoken of in s. 44 of the EA 1950 is actual, positive fraud, not constructive fraud. The “actual positive fraud, must be a meditated and intentional contrivance to keep the parties and the court in ignorance” of the relevant matter. ii. Secondly, there must be malus animus, a mala mens “acting in order to take an undue advantage … for the purpose of 17! ! actually and knowingly defrauding” the other party; mere overstatement of rights or irregularity is insufficient. iii. Thirdly, charges of fraud and collusion must be strictly proved by the party alleging them, by established facts or by inferences legitimately drawn from the totality of those facts. Suspicion, surmise and conjecture are not permissible substitutes. iv. Fourthly, where the alleged fraud consists of non-disclosure of material evidence, the authorities recognise a duty of utmost good faith (uberrima fides) on a litigant who moves the Court, particularly one seeking discretionary relief. A deliberate decision to withhold a “vital document” in order to gain an advantage may amount to fraud on the Court. v. Fifthly, that, once fraud is proved, it is not necessary for the innocent party to show that the fresh evidence could not with reasonable diligence have been obtained for the original trial. Fraud “unravels all”; vi. But it bears emphasis that this relaxation of the diligence requirement does not dilute the threshold for proving fraud in the first place. On the contrary, the cases insist that a judgment, especially one given after a full trial, is not lightly disturbed; clear and cogent evidence of actual fraud is required. 18! ! IV. Issues [33] Against this backdrop, the issues that arise for determination in this application may be framed as follows: a) Whether Tega perpetrated “actual positive fraud”; and b) Whether, in all the circumstances, this is an appropriate and proportionate case to invoke the exceptional jurisdiction under s 44 of the EA 1950 to impeach a judgment. [34] I will address these issues in turn. a) Whether Tega perpetrated “actual positive fraud” [35] Under this heading, this Honourable Court is called upon to decide whether, on the facts of Suit 15, Tega owed a legal duty to disclose the MDA Recall Notice to the Court and to MWH; and, if so, whether MWH has proven to the requisite standard that Tega deliberately and dishonestly withheld that Notice to procure the impugned judgment. [36] MWH seeks to impeach the judgment, alleging that Tega fraudulently failed to disclose the MDA Notice, which MWH contends affects Tega’s entire product line from its inception. Specifically, MWH argues that Version 1, Version 2, and Version 3 were all "contaminated" by "Germanium," their key ingredient. 19! ! [37] In my judgment, the starting point must be to identify precisely what was at issue in Suit 15. As learned counsel for Tega correctly pointed out, Suit 15 concerned only Versions 1–3 of Tega’s products—all products containing organic germanium and marketed under the “OGE Bio-Aquacel” brand. [38] The pleadings in Suit 15 specifically identified Versions 1, 2, and 3 as the products at issue. During the trial, Versions 1, 2, and 3 were: a) Exhibited (Exhibits P1A-P1B, P2A-P2C, P3A-P3B); b) Tested by expert witnesses; c) Distributed by MWH during the relevant period (2017-2020); and d) Subject to the contamination allegations. [39] It is undisputed that the MDA Notice pertained to one of Tega’s later products called “Bio-Aquacel Eye Safe” (“Version 4”). Counsel for Tega emphasized that Versions 1, 2, and 3 were consistently sold as “cosmetic products.” In contrast, Version 4 was registered as a “medical device.” Counsel for Tega underscored that Version 4, “Bio-Aquacel Eye Safe,” did not exist when Suit 15 was commenced, was only marketed in November 2020, and was manufactured by one Farmasia as a medical device under a regulatory regime distinct from that applicable to cosmetic products. [40] In deliberating this point, I am cognizant that there is no dispute that MWH ceased distributing products for Tega on 31 January 2020. MWH itself admits this in its first affidavit [see paragraph 6, page 7, E.2]. This means Version 4 was never distributed by MWH. 20! ! [41] MWH has also repeatedly acknowledged that Version 4 was manufactured by Farmasia, which had nothing to do with the matters at trial in Suit 15 [see paragraphs 21 and 22 of MWH’s first affidavit, pages 27 to 29, E.2]. This then only means Farmasia had nothing to do with Versions 1, 2, or 3 and played no part in their manufacture. [42] No issue was ever raised or pleaded by MWH during the trial of Suit 15 regarding Version 4 or the involvement of products manufactured by Farmasia in the matters raised in Suit 15. The only probable conclusion is that the MDA Notice, on its face, is an administrative recall directive issued in respect of Version 4. It does not mention Versions 1–3. There is no suggestion that the MDA has ever issued any similar recall regarding Versions 1–3 or that the MDA had any regulatory oversight over those earlier products. [43] MWH nevertheless advances several links from the MDA Notice (Version 4) to Versions 1–3. For the reasons that follow, I find these arguments unpersuasive. [44] Foremost, Tega had no legal duty in Suit 15 to volunteer the MDA Notice, as I have alluded to in paragraphs 42 and 43 of this judgment. The notice concerned a different product, manufactured by a different entity, and subject to a different regulatory regime. Version 4 was never pleaded; indeed, MWH expressly acknowledged in its own affidavit that Version 4 was produced by Farmasia and was not part of the products it had distributed. 21! ! [45] MWH contends that the MDA Notice, which references a manufacturing and distribution period commencing in August 2019, applies retrospectively to product Versions 2 and 3. This reasoning conflates two distinct matters: the temporal scope of the distribution of contaminated Version 4 products, and the specific product versions subject to the recall. The MDA Notice explicitly identifies the recalled product as "OGE Bio-Aqacel Moisturising Mineral Water" in its Version 4 formulation and registration. The reference to August 2019 indicates the commencement of the manufacturing period for Version 4 products bearing that specific formulation; it does not apply to earlier versions. Critically, no evidence suggests that the MDA’s findings regarding Version 4 apply retrospectively to the materially different formulations of Versions 1 through 3. [46] MWH further argued that because all versions contain germanium, the MDA Notice’s findings on "undeclared germanium" must apply to all versions. With respect, this argument oversimplifies the regulatory framework. The Notice pertains specifically to Version 4, which was registered as a medical device. The core issue was not merely the presence of germanium, but its undeclared status within the medical device registration, the specific formulation and concentration present in Version 4, and its compliance with medical device regulations. In contrast, Versions 1–3 were regulated as cosmetic products, subject to entirely different regulatory requirements. The mere presence of germanium as an ingredient does not ipso facto mean all versions are contaminated, nor does it justify extrapolating findings from one version to all others. 22! ! [47] MWH also pointed to Tega’s marketing description of Version 4 as a "repackaging" of Version 3, inferring they are the same product. However, marketing descriptions do not govern legal and regulatory classification. The substantive change in Version 4 was its registration as a medical device, which brought it under a distinct regulatory regime with different oversight and requirements. The MDA Notice itself treats Version 4 as a distinct, registered medical device. If Versions 3 and 4 were truly identical, there would have been no need for Tega to separately register Version 4 as a medical device at all. [48] MWH submitted that Tega’s claim for damages in Suit 15 covers the period from December 2019 to 12 March 2024—a period during which Version 4 was predominantly distributed—and therefore Version 4 was implicitly part of the suit. This argument is with respect, misconceived. The damages claimed in Suit 15 relate to the passing off established by MWH’s distribution of 2,000 samples using Tega’s forms (which occurred in late 2019/early 2020), unlawful interference with trade by MWH and Heidi, and the continuing effects of these wrongful acts on Tega’s business. The extended damages period reflects a claim for continuing loss flowing from MWH’s wrongful acts, not an implicit inclusion of Version 4 within the liability findings. The liability issues in Suit 15 were determined based on the pleaded case concerning Versions 1–3. Any assessment of damages would require proof of causation stemming from those wrongful acts. In any event, assessment of damages is a separate proceeding; MWH cannot use the pleaded damages period to retroactively expand the scope of the liability. 23! ! [49] Even assuming, for the sake of argument, that the MDA Notice were relevant—which I have definitively found it is not—it does not establish what MWH claimed and utterly failed to prove at trial: namely, that Versions 1–3 were contaminated. The contamination issue at trial concerned MWH’s specific allegations that particular batches of Version 3 (Batch 42) delivered to MWH were contaminated, that this contamination justified MWH’s recall actions, and that Tega’s products posed safety risks. [50] The court’s findings were based on MWH’s failure to call the makers of laboratory certificates to testify, Tega’s expert evidence indicating no contamination, and the credibility of the competing evidence. The MDA Notice regarding Version 4 and undeclared germanium in its medical device registration does not prove or disprove contamination of the specific Version 3 Batch 42 that was the subject of trial. To reiterate my views aforesaid, these involve different products, different regulatory contexts, and different factual issues. MWH’s attempt to introduce this evidence is a transparent attempt to relitigate settled issues and is wholly without merit. [51] For these reasons, I find that Tega had no duty to disclose the MDA Notice during the trial in Suit 15. First, as extensively discussed, the Notice concerned Version 4, which was not part of the pleadings, evidence, or issues in Suit 15. A party’s duty to disclose is circumscribed by relevance; Tega cannot be faulted for failing to disclose a document relating to a product that was not in issue. [52] Second, the burden of proof rested on MWH. In Suit 15, MWH bore the burden of proving contamination as part of its defence and 24! ! counterclaim. By analogy, MWH, as the party asserting contamination, needed to prove it. Tega’s role was to respond to and test that evidence. The burden was not on Tega to discharge MWH’s own obligation to prove contamination. Had MWH failed to adduce sufficient evidence, its claim would have failed irrespective of what Tega did or did not produce. [53] Third, MWH had equal access to the information. The MDA Notice was issued by a public regulatory authority, and such notices are publicly available on the MDA website. MWH, as a party vitally interested in proving contamination, had the means and opportunity to monitor MDA announcements, search public registers, and investigate regulatory actions concerning Tega’s products. MWH cannot now claim to have been deprived of evidence that was publicly accessible to it. [54] Fourth, MWH’s own conduct negates any suggestion of fraud. Learned counsel for Tega submitted, and I accept, that MWH knew or should have known about potential regulatory issues concerning Tega’s products because MWH itself had raised contamination allegations, was familiar with the product line, and had every incentive to investigate regulatory matters to support its case. If MWH was genuinely unaware of the MDA Notice during the trial— which concluded on 24 October 2023, two months after the Notice was issued—this reflects MWH’s own failure to conduct reasonable inquiries, not any fraud by Tega. 25! ! [55] What section 44 of the EA 1950 demands is a breach of a legal duty coupled with malus animus. That threshold is not crossed where (i) Version 4 fell outside the pleaded frame, (ii) the principal issues tried concerned passing off and interference, and (iii) MWH itself knew of the Notice during the trial. [56] To characterise Tega’s non-disclosure of the MDA Notice – which related to a non-pleaded, later product – as “fraud” within the meaning of s 44 would be to stretch that concept beyond recognition. As Yow Man Kong makes plain, a party is not under a duty in earlier proceedings to volunteer material relating to issues that were never raised on the pleadings. [57] In Yow Man Kong the Court of Appeal held: [56] From the reading of para [169] above, it is obvious to us that the learned JC had misconstrued the concept of fraud in s 44. His understanding of fraud is the appellant did not tell the truth that the impugned transaction is illegal moneylending. We had to say his decision is seriously wrong for the following reasons. Firstly, it is in direct contravention to the basic rule of pleadings ie not only parties are bound by their pleadings, but the court also is not entitled to decide on a matter on which no issue has been raised by the parties (see Janagi v Ong Boon Kiat [1971] 2 MLJ 196). At the risk of repetition, the appellant’s case in the sessions court is not moneylending. His case is the impugned transaction is genuine as what the documents say. Moneylending is a non-issue in that suit. Therefore, it is erroneous for the learned JC to hold the appellant had to tell the truth to the sessions court about issue that not only do not exist and at the same time the parties never asked the court to decide. Further, 26! ! as rightly submitted by counsel for the appellant why should the appellant assist the respondents. It would be self defeating to him. [57] Secondly, on the point of pleadings, the respondents’ case of concealment of illegality or fraud against the appellant could not stand. Therefore, the present suit is simply a case of the respondents’ failure to plead illegality in the earlier suit, but putting the blame on the appellant. [58] Thirdly, the learned JC had misunderstood that the burden to proof fraud is on the respondents, not the appellant. In this case, we find the learned JC did not make any finding whether the respondents have proved the appellant had committed actual fraud upon the court in the earlier proceedings in the sense the appellant had fraudulently influenced the decision-making process of the court in granting summary judgment. In the absence of such finding, the court was wrong in setting aside the previous judgment in Suit 510. On this ground alone, we agree with counsel for the appellant that this appeal ought to be allowed. [Emphasis is ours] [58] The position is further complicated by the fact—which MWH candidly admits—that it became aware of the MDA Notice in October 2023, while Suit 15 was ongoing and months before the Judgment was rendered. [59] MWH seeks to place the responsibility for the non-disclosure solely on Tega, suggesting that Tega had a higher duty of candour as the plaintiff in Suit 15 and as the registrant of Version 4. However, the question under s 44 is whether the successful party procured the judgment by its own fraud. It is not open to a losing party, which was itself aware of the supposed “critical” evidence and chose not to deploy it, to impeach the judgment by pointing to the other side’s equal non-disclosure. 27! ! [60] Learned counsel for Tega has, with some force, suggested reasons why MWH may have elected not to rely on the MDA Notice during the trial. As learned counsel points out, MWH and Heidi maintained counterclaims which proceeded on the premise that Tega’s products were marketable and that MWH had suffered a loss of profits when it was no longer able to sell them, and that Heidi was entitled to royalties and other payments for the formula allegedly used to manufacture those products. Hence, had MWH made this radical proclamation in Suit 15, it would have hindered its own counterclaim and Heidi’s counterclaim. [61] I do not need to make any definitive finding on MWH’s motives. It suffices to note that the record reveals no deliberate stratagem by Tega to keep MWH in ignorance of the MDA Notice. To the contrary, MWH acknowledges knowing of the Notice and yet deciding not to rely on it. In these circumstances, it is difficult to see how Tega can be said to have "by its fraud" prevented MWH from presenting its case. [62] In my judgment, the combination of (a) the absence of any pleading or issue in Suit 15 relating to Version 4, and (b) MWH’s own admitted knowledge of the MDA Notice during the trial, is fatal to the contention that Tega’s non-disclosure of the Notice constituted “actual positive fraud” within the meaning of s 44. [63] MWH was not prevented by any conduct of Tega from placing the Recall Notice before the Judge. If MWH wished to rely on it, 28! ! procedural avenues to seek leave to reopen or adduce additional evidence were available. That reality significantly weakens any suggestion that Tega “kept MWH and the court in ignorance.” [64] For completeness, I add that even leaving aside the questions of duty and knowledge, MWH has not adduced cogent evidence that Tega acted with a dishonest intent to deceive the Court. [65] Much of MWH’s case consists of assertions and inferences that Tega “must have known” that the MDA Notice undermined its case in Suit 15, and that its failure to disclose it must therefore have been fraudulent. But s 44 demands more than suspicion or conjecture. As the Privy Council observed in Satish Chandra Chatterji, allegations of fraud must be proved “by established facts or inferences legitimately drawn” therefrom; “suspicions and surmises and conjecture are not permissible substitutes”. [66] Here, there is no direct evidence that Tega deliberately concealed the MDA Notice with the intention of deceiving either the Court or MWH. Nor is there any coherent explanation from MWH as to how Tega’s supposed knowledge of Version 4’s recall could be said to falsify the evidence that Tega led in Suit 15 concerning the development, composition, and testing of Versions 1–3. [67] In my view, the evidence falls well short of establishing the sort of deliberate, targeted deception that the authorities require. The allegation of fraud is therefore not made out. 29! ! [68] Even if I were prepared to assume, contrary to my earlier conclusions, that Tega ought to have drawn the MDA Notice to the Court’s attention, that would not, without more, justify impeaching the Judgment. The applicant under s 44 of the EA 1950 must also demonstrate that the suppressed material was such that, if it had been disclosed, it would have been reasonably likely to lead to a different outcome. [69] In this respect, MWH’s case encounters several serious difficulties. [70] As I have already noted, Suit 15 was confined to Versions 1–3. Version 4 was never pleaded, never sold by MWH, and was never part of the factual matrix before the Court. [71] MWH is now contending that the contamination was not caused by bacteria or yeast but was caused by the inclusion of “Germanium.” MWH’s contention effectively means that, as all of Tega’s Products—namely, Version 1, Version 2, and Version 3—contained “Organic Germanium,” this contamination would have been present from the very start, affecting every single customer that had ever purchased or used Version 1, Version 2, or Version 3 since 2017. [72] This Court in Suit 15 was therefore not required – and, indeed, would not have been entitled – to make findings concerning Version 4 or products manufactured by Farmasia. To suggest that an administrative recall of Version 4 in August 2023 would have compelled the Court to revisit its findings on liability and goodwill in respect of Versions 1–3, based on events that occurred between 2017 and early 2020, is a speculative proposition. 30! ! [73] Learned counsel for MWH effectively asks this Court to proceed on the basis that a recall affecting Version 4 in 2023 necessarily implies that Versions 1–3 were contaminated from their inception, and that Tega’s goodwill was a mere façade. This is not the case that MWH presented at trial; it is a radically new hypothesis constructed ex post facto around the MDA Notice. [74] To permit such a reconstruction of the factual and legal landscape of Suit 15 based on a regulatory notice directed at a later, different product would be difficult to reconcile with the principles of finality and the pleaded case. [75] More fundamentally, MWH’s case assumes that Suit 15 was decided on the premise that Tega’s products were entirely free from any contamination concerns, and that the MDA Notice would have upended that premise. That is not an accurate characterisation of the Judgment. [76] The earlier judgment of this Court, as summarised in Tega’s submissions, rested on multiple, independent pillars: Tega’s development and ownership of the Bio-Aquacel marks and products; MWH’s role as distributor and its access to Tega’s confidential know-how and market; the post-termination collaboration between MWH and Heidi to develop and sell a competing product using a substantially similar formula; the misrepresentation of products to customers and sub-distributors; and the resulting damage to Tega’s goodwill and trade. 31! ! [77] The issue of contamination was raised primarily in the context of MWH’s counterclaim, where it asserted that Tega’s products were contaminated and that Tega’s goodwill had been destroyed. The Court rejected that counterclaim, finding, inter alia, that not all customers had complained of contamination, that Tega’s goodwill had not been extinguished, and that MWH had in fact benefited substantially from the distribution of Tega’s products over several years. [78] Even if the MDA Notice had been placed before the Court, it would not, in my judgment, have compelled the conclusion that Versions 1–3 were unsafe or that Tega had no protectable goodwill. There would have remained substantial evidence of market acceptance, brand recognition, and commercial success, as well as the independent wrongs of misappropriation and passing off, which do not depend on the integrity of the plaintiff’s product. [79] In other words, the Judgment does not hinge on a binary proposition: that Tega's products were either entirely uncontaminated (in which case Tega wins) or inherently unsafe (in which case Tega must lose). Rather, it rests on a more nuanced assessment of the parties' conduct, the state of the market, and the scope of the misrepresentations. The MDA Notice, even if admitted, would have, at most, added a complication to the contamination narrative; it would not have dismantled the foundation of Tega's claims. 32! ! [80] In my view, MWH has not demonstrated that the MDA Notice, had it been disclosed, would have made it reasonably probable that the outcome in Suit 15 would have been different. On this basis too, the application fails. I find that on the totality of the evidence, the Recall Notice does not carry decisive probative weight. b) Whether this is an appropriate and proportionate case to invoke the exceptional jurisdiction under s 44 to impeach a judgment [81] Based on the reasons I have alluded to in the preceding paragraphs, I agree with learned counsel for Tega that the instant proceedings amount to a collateral attack on the Judgment and an abuse of process. [82] Critically, even if the MDA Notice had been before the court, I am satisfied that it would not have altered the finding that MWH failed to prove contamination of Versions 1–3. The court’s analysis was based on MWH’s failure to properly prove its case through admissible evidence, the credibility of Tega’s expert evidence on the specific batches tested, and the inadequacy of MWH’s documentation and witnesses. A regulatory notice concerning a different product—Version 4, registered under a different regulatory regime as a medical device rather than a cosmetic—would not have remedied these evidential deficiencies. The MDA Notice states the recall reason as “undeclared raw material (Germanium)” in a medical device. This is a regulatory compliance issue, not proof of microbiological contamination or unsafety, which was the pleaded case. “Undeclared” does not equate to “contaminated” in the sense 33! ! MWH alleged; it signifies non-compliance with registration requirements. Therefore, the MDA Notice, even if admitted, would not have been determinative of the contamination issue as tried. [83] Learned counsel for MWH argued that the MDA Notice undermines Tega’s goodwill and reputation, which was essential to the passing! off claim. I disagree for several reasons. First, the passing-off finding was based primarily on MWH’s misrepresentation through its use of Tega’s delivery forms, not solely on the strength of Tega’s goodwill. As noted at paragraph 60 of the earlier Grounds of Judgment of this Court, the distribution of 2,000 free samples of MWH Bio-Aquacell to the public constituted a misrepresentation of association. That misrepresentation was made out regardless of the extent of Tega’s goodwill. Second, goodwill in Versions 1–3—the products actually in issue—is not automatically destroyed by a later regulatory issue concerning Version 4, a different product. Third, Tega’s products enjoyed substantial market presence and sales during the relevant period (2017–2020), as established at trial; this goodwill related specifically to Versions 1–3. Fourth, a single regulatory recall notice does not necessarily extinguish all goodwill in a business; many enterprises experience product recalls while retaining customer trust. [84] To impeach the judgment, MWH must establish actual positive fraud—an intentional, deliberate act to deceive the court. With respect, MWH has failed to do so. There was no intentional deception: at most, MWH has shown that Tega did not volunteer information about Version 4, which is not the same as deliberately deceiving the court about matters actually in issue. No duty was 34! ! breached, as Tega had no obligation to disclose a notice relating to a non-pleaded product. MWH does not allege that Tega presented false evidence or lied to the court; Tega’s expert witnesses testified truthfully regarding their testing of Version 3. There was no suppression of relevant documents, because the MDA Notice was not relevant to the issues pleaded and tried in Suit 15. [85] Learned counsel for Tega submitted that MWH is impermissibly approbating and reprobating by accepting the dismissal of the trademark-infringement claim while seeking to impeach only the findings on passing off and unlawful interference. While MWH is technically only challenging parts of the judgment, there is force in learned counsel’s submission that MWH’s approach is opportunistic. MWH lost at trial on its contamination defence after a full hearing where it had every opportunity to prove its case. It lost its counterclaim for refunds and damages based on alleged contamination. Now, nearly nine months after the judgment, MWH seeks a second bite at the cherry by introducing new evidence—the MDA Notice—which it could have discovered and presented at trial. This is precisely the type of collateral attack on final judgments that the strict rules on impeachment are designed to prevent. [86] While MWH filed this originating summons relatively promptly after engaging new solicitors, the delay from the MDA Notice (24 August 2023) to this application (26 December 2024) requires explanation. Learned counsel for MWH argued that his client only became aware of the Notice after engaging new solicitors. However, the Notice was issued during the trial—specifically after the fifth day of trial and before five subsequent trial dates. To reiterate my views, as an 35! ! interested party actively disputing contamination issues, MWH had every incentive and opportunity to monitor regulatory developments, check public MDA records, and investigate Tega’s compliance status. Its failure to discover publicly available information for over a year does not constitute fraud by Tega. The delay undermines MWH’s case: if the MDA Notice were truly as critical and obvious as MWH now claims, it should have been discovered much earlier. [87] The findings in Suit 15 established that MWH collaborated with Heidi (Tega’s former director) to create a rival product, distributed samples while still Tega’s master distributor, used Tega’s own forms to distribute the rival product, and created a misrepresentation of association with Tega’s products. These findings stand independently of any contamination issue and independently of the MDA Notice. As noted at paragraph 61 of the Grounds of Judgment, MWH’s conduct was aggravated by the fact that it distributed MW Bio-Aquacell while still operating as Tega’s master distributor. Nothing in the MDA Notice changes or excuses MWH’s wrongful conduct as found by the court. MWH cannot use the impeachment process to escape liability for its own established wrongdoing. [88] It is well established that s 44 of the EA 1950 is not to be used as a vehicle for relitigating issues that could and should have been raised in the original proceedings. It is an abuse of process to raise in subsequent proceedings matters that were open to a party in earlier proceedings but were not then pursued; parties are bound by their pleadings and by the forensic choices they make. 36! ! [89] In the present case, MWH was aware of the MDA Notice before the conclusion of the trial in Suit 15. If it genuinely considered the Notice to be as critical and transformative as it now claims, the proper course would have been to seek to adduce it in Suit 15 – whether by recalling witnesses, applying for leave to adduce further evidence, or seeking an adjournment to address its implications. [90] Instead, MWH did none of these things. It allowed the trial to conclude, awaited the Judgment, and only many months later sought to impeach the Judgment via a fresh action premised on a new contamination theory that was never ventilated at trial and which sits uncomfortably with its own past and present commercial conduct. [91] While my decision does not rest solely on abuse of process, these features reinforce my conclusion that this case does not engage the exceptional jurisdiction under s 44 of the EA 1950. To permit the Judgment to be reopened in these circumstances would be to dilute, in a most unwarranted way, the principle of finality in litigation and to encourage disappointed litigants to recast decisions as “fraud” whenever fresh material emerges. [92] In Seng Huat Hang (supra) the Court held at page 421: Now, a party cannot, in a subsequent action, raise a ground of claim or defence which, upon the pleadings, was open to him in the former one. Thus, in an action for arrears of rent, where a defendant unsuccessfully pleaded no concluded agreement, he was prevented in a subsequent action for further arrears of rent, from setting up the further defence under the Statute of Fraud of no memorandum in writing: Humphries v Humphries [1910] 2 KB 531. 37! ! It is also an abuse of the process of the court to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings — Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC

It is my judgment, therefore, that on this further ground also, the plaintiffs are bound by their pleadings in the Magistrate's Court Actions and are thereby estopped from taking the point raised in the action herein.! [93] For the sake of completeness, I will also address the issue of MWH's delay in filing this action. The timing of the filing of this OS and the failure to appeal the Judgment of 12 March 2024 constitute further compelling reasons why this allegation of fraud is unfounded and appears to be a mere afterthought. Learned counsel for Tega raised this point, and I find it persuasive. [94] First, despite the Judgment being delivered on 12 March 2024, MWH elected not to appeal within the prescribed timeframe. Instead, MWH filed its Notice of Appeal on 16 October 2024, more than seven months after the Judgment date. [95] Subsequently, MWH withdrew that Notice of Appeal and chose to focus on this OS although it was only filed on 12.12.2024, which was 9 months after the Judgment was delivered on 12.3.2024. Subsequently, MWH withdrew that Notice of Appeal and chose to pursue this OS, despite filing it only on 12 December 2024, nine months after the Judgment of 12 March 2024. 38! ! [96] Despite being aware of the MDA Notice sometime in 2023, prior to the Judgment of 12 March 2024, MWH chose to file this OS only now. This demonstrates an unreasonable and inordinate delay in proceeding with this allegation of fraud against Tega. [97] In Tg Intan Baidurah bt Tengku Abdullah v Raja Hamid bin Raja Kassim & Anor [2025] 7 MLJ, it was held: “Whether there is undue delay on the plaintiff’s part in filing this action [48] Apart from the obligation to adduce the necessary evidence to establish her case, the plaintiff faces a legal impediment which to my mind, is insurmountable. This pertains to the issue of delay on her part in pursuing her claim. … [50] In IB Capital Sdn Bhd v Ivory Indah Sdn Bhd & Anor [2022] 1 MLJ 860, the Court of Appeal held as follows: … [292] The Court of Appeal said: [44] In any event the respondents were guilty of laches. In The Principles of Equitable Remedies (2001) (6th Ed), the learned authors have this to say on the common law doctrine of laches: Laches is established when two conditions are fulfilled. In the first place, there must be unreasonable delay in the commencement or prosecution of proceedings; in the second place, in all the circumstances the consequences of delay must render the grant of relief unjust” [Emphasis is ours] [98] In this regard, I agree with the submission advanced by learned counsel for Tega, in that the facts herein establish a strong case for the application of laches against MWH for the following reasons: 39! ! a. First, there is a clear delay of 9 months by MWH in moving this allegation of fraud. First, there is a clear delay of nine months by MWH in raising this allegation of fraud. b. Second, it would be unjust for MWH to now insist on this allegation of fraud, as it would contradict MWH’s own earlier position in Suit 15; for example, that it was entitled to loss of profits for the sale of products that it now claims were entirely contaminated. [99] MWH cannot take advantage of its own wrongdoings following established legal principles set out in cases such as Gimstern Corporation (M) Sdn Bhd & Anor v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302, where it was held: “The rule is that if a stipulation in a contract be that the contract shall be void on the happening of an event which one or either of the parties can by his own act or omission bring about, then the party who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong to put an end to the contract, vide the judgment of Lord Atkinson in New Zealand Shipping Company Ltd v SDAECD France [1919] AC 1. In the present case the first defendant alleges that it had not obtained the consent of the plaintiff company to cease to operate at the address stated in clause 14(ii). Therefore the first defendant being the blameable party cannot be permitted to take advantage of his own wrong in ceasing to operate at that address without the consent of the plaintiff company, to put an end to the agency agreement.” [Underlined Emphasis mine] 40! ! [100] MWH cannot divorce itself from this Court's findings that MWH made multiple allegations of contamination against Version 3 and that both MWH and Heidi collaborated to distribute a rival product, resulting in unlawful interference with Tega’s trade. [101] Both of these events adversely affected the sales of Version 3, leading Tega to have no choice but to stop selling Version 3 and focus on new products such as Versions 4 and 5. [102] Hence, it is untenable for MWH to now assert that, because Version 3 is no longer being sold, Tega is not entitled to seek damages up to the date of decision. [103] MWH should therefore not be given a second bite at the cherry to raise such a radical contention via this OS. [104] The MDA Notice states that Version 4 was recalled because it was “Contaminated with an undeclared Germanium that is not registered and approved”. Nowhere in the MDA Notice did the MDA conclusively determine that “Germanium” was a contaminant. Instead, the MDA Notice merely suggests that Version 4 contained an “undeclared” ingredient and that the detected “Germanium” was “not registered and approved”. [105] This submission is fortified by the following statements highlighted by learned counsel for Tega as can be found in the MDA at page 114: 41! ! “Malfunction of the medical device is due to Contamination Problem–Code A18. This problem associates with the presence of any unexpected foreign substance found in the device, which may affect performance or intended use of the device.” “The effects of the undeclared ingredient in Bio-AQUACEL Eye Safe however has not yet been studied and could possibly cause temporary or reversible health consequences; or there is remote probability that the device will cause serious consequences. Nevertheless, to current date, Bio-AQUACEL Eye Safe has not received any complaints and has no reported adverse event associated to this issue.” ! [106] Hence, the MDA had not yet determined in the MDA Notice that "Germanium" was indeed a contaminant. [107] For the foregoing reasons, I find that MWH's allegations of fraud in this OS fail to meet the requirements set out in Seruan Gemilang(supra), Chee Pok Choy (supra), Seng Huat Hang (supra), and Satish Chandra Chatterji (supra) regarding the type of fraud that must be established before any decision can be impeached. IX. Conclusion [108] For the reasons articulated above, I am satisfied that: i. The fraud contemplated by s 44 of the Evidence Act constitutes "actual positive fraud"—a deliberate and intentional contrivance to deceive the opposing party and the court—and not mere constructive fraud or non-disclosure. 42! ! ii. On the facts of this case, MWH has not established that Tega was under any legal duty in Suit 15 to disclose the MDA Notice, which concerned a different product (Version 4) that was neither pleaded nor in issue, and which was manufactured by a third party under a different regulatory regime. iii. MWH itself was aware of the MDA Notice during the trial of Suit 15 and elected, for its own reasons, not to place it before the Court. Its subsequent attempt to attribute the non-disclosure to Tega does not satisfy the requirements of s 44. iv. Even if the MDA Notice had been disclosed, it has not been demonstrated that this would likely have led to a different outcome in Suit 15. The Judgment did not turn solely, or even primarily, on the issue of contamination; it rested on a broader assessment of Tega’s goodwill and the wrongful collaboration between MWH and Heidi. v. The present application represents, in substance, an attempt to re-litigate issues that could and should have been raised in Suit 15, and to introduce a radically new contamination theory that is inconsistent with MWH’s own commercial conduct. [109] In these circumstances, the high threshold for impeaching a final judgment on the ground of fraud has not been met. The Originating 43! ! Summons is therefore dismissed. Accordingly, I order that the Plaintiff shall pay the Defendant’s costs of RM 10,000. Dated this 24th day of December 2025. ! tt EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR Counsel: For the Plaintiff : Mr. Justin Voon Tiam Yu, Ms. Cheryl Tay Shieh Chin and Ms. Cheryl Leong Kit Yee (Messrs Cheryl Tay & Partners) For the Defendant : Mr. Gregory Ling together with Mr. Lim Luo Jing (Messrs Gregory Ling)