Norliah Binti A P Kunhibava v Mohd Noor Amin Bin Mohd Noor Khan (WA-28NCC-114-01/2025)

MOHD NOOR AMIN BIN MOHD NOOR KHAN (NRIC No.: 690319-10-5439)

SHARIZA BINTI KAMARUZZAMAN (NRIC No.: 690322-10-5982)

NUR JASNI BIN MOHAMED (NRIC No.: 721202-14-5161)

NUEMERA (M) SDN BHD (Company No.: 689575-W) …RESPONDENTS

These Grounds concern Encl 157 dated 25.9.2025, an application to recuse me from further hearing this case (“Recusal Application”).

The Recusal Application was filed within a Petition (Encl 1) filed by the Petitioner to wind up the 4th Respondent (“Nuemera”) under s. 465(1)(f) and/or (h) of the Companies Act 2016 (“CA 2016”). The winding up is asked to be made: a. on the basis that the directors have acted in the affairs of the company in the directors’ own interests rather than in the interests of the members as a whole or acted in any other manner which appears to be unfair or unjust to members; or b. if the Court is of the opinion that it is just and equitable that the company be wound up.

A claim was also made against the 1st Respondent’s (“Amin”), the controller of Neumera.

The Petition is predicated on 3 grounds: a. loss of substratum – falling under the just and equitable limb; b. breakdown of relationship of trust and confidence – also falling under the just and equitable limb; c. the directors have acted in their own interests rather than in the interest of the members as a whole or acted in a manner which is unfair or unjust to the Petitioner.

All references to sections in these Grounds are with reference to the Companies Act 2016 (“CA 2016”).

The contents of these Grounds are as set out below. Contents Para No INTRODUCTION 2-6 BACKGROUND FACTS 7-9 Disbursements to ZIST 10-17 The Interlocutories & My Findings Of Abuse on the Stay Applications 18-20 The Sequencing of the Interlocutories 21-27 Encl 133 - for Cross & Another Stay 28-37 THE RECUSAL 38-39 An Accusation of Bias 40-45 The Principles 46-49 Predetermination & Predisposition 50-54 THE RESPONDENTS’ CASE 55-59 THE 2 EVENTS SHOWING PREDETERMINATION 60-61 FIRST EVENT - THE SEQUENCING OF ENCL 9 & ENCL 13 62-73 Reasons for Hearing Encl 9 First 74-78 Conclusion on the First Event 79-90 SECOND - THE SEQUENCING OF ENCLS 9 AND ENCLS 62 & 71 91-94 ‘Ebbs & Flows’ & an Open Mind 95-103 The ‘Shifts’ 104-110 Appeal & the Stay in the Court of Appeal 111-119 CONCLUSIONS ON PREDETERMINATION 120-125 Bad Faith & Interference with the Administration of Justice 126-135 Allegations of Actual Bias 136-138 FINAL CONCLUSION 139 POSTSCRIPT - THE MALAYSIAN BAR AS AMICUS 140-146 The Role of the Bar 147-162

The following is the history of these proceedings leading up to the Recusal Application.

Nuemera was in the business providing services for mobile telecommunication devices. Nuemera’s principal activity was running a project known as the PCBS Solution, which was a contract between Nuemera and the Malaysian Communications and Multimedia Commission (“MCMC”), whereby Nuemera was appointed to build, operate and manage a nationwide blocking service for lost or stolen mobile phones. The PCBS Solution came to an end upon the suspension of the Project by MCMC.

Nuemera commenced Arbitration proceedings against MCMC. It succeeded and was awarded RM113,257,500.00 together with interest at 5% per annum. By end October 2022 and pursuant to the Arbitration award, Nuemera received approximately RM137 million which included about RM24 million in late payment interest. The Petitioner claims that when Nuemera received these monies, the relationship between the shareholders began to unravel, with disputes arising as to whether dividends ought to be declared.

In March 2023, RM93.25 million out of the monies received by Neumera was transferred into the client’s account of Nuemera’s solicitors, Messrs Zaid Ibrahim Sufflan TH Liew (“ZIST”), who incidentally, represent Nuemera and the Respondents in this Petition. Mr. TH Liew, a named partner in ZIST, appeared as Counsel.

The Petitioner claims that a large portion of these monies were rapidly dissipated out of ZIST. Over RM16 million (purportedly as legal fees) was paid to ZIST itself and its associate in Singapore, Niru & Co. A further RM17.5 million was transferred to a law firm known as T.L. Chen & Co. as “Consultancy charges”. The Petitioner challenges these ‘payments’ as being over-inflated and improper.

The first example are the fees paid for ‘Suit 29’, a suit against 6 government agencies for the tort of misfeasance in public office. The suit was commenced on 29.3.2023 and was withdrawn on 31.7.2023. Over a span of 2 months from 25.5.2023 to 25.7.2023, the total fees invoiced and paid was RM1,064,096.83, as alleged at para 156 of the Petition. All that ZIST did, it is alleged, was to file a 6-page affidavit on 20.7.2023.

A second example are the fees in ‘Suit 138’ filed on 25.3.2023 against five (5) Defendants, again, for misfeasance in public office. It is alleged that invoices issued from 25.5.2023 to 24.7.2024 were for a total of at least RM1,833,350.99.

Further, a payment of RM3,585,772.38 used to pay off Amin’s personal housing loan is also said to be improper. Similarly, a declaration of director’s fees and other emoluments in excess of RM16 million (with RM12 million thereof to be paid to Amin himself) is heavily criticised. As was the large expenditure by Nuemera.

In the end, the Petitioner claims that from the RM93.25 million deposited with ZIST on 28.3.2023, what remained as at 7.8.2024 are only the sums of RM82,757.32 and RM1.4 million.

The claim is that there have been wrongful if not fraudulent acts, which include the misapplication of funds, and in particular at para 19.13 of the Petition, for payments of Nuemera’s funds out of ZIST clients’ account. The Petition is based on such acts.

All these allegations are denied.

Various interlocutory applications were filed. The main application was the application for, inter alia, the appointment of interim liquidators (“IL”) over Nuemera (Encl 9) pending disposal of the Petition. The application to appoint the IL is predicated on the third ground of the Petition, i.e., the directors’ alleged misdeeds and breaches of duty. It includes the misapplication of funds from ZIST’s clients’ account.

The Respondents contend that, inter alia, the primary relief sought by Encl 9 is an investigative exercise by the IL to determine if financial decisions made by the Amin were reasonable and to assess and investigate the legal fees charged by ZIST and Niru & Co of over RM 16 million. This must have proved to be a real worry, even though the appointment of the IL for the purposes on conducting an investigation is entirely proper.

Encl 9 provoked a series of aggressive responses and the filing of various interlocutory applications, (collectively, the “Interlocutories”). The Respondents filed an application to, inter alia, strike out the Petition (Encl 13) and an application (Encl 19) for, inter alia, an ad interim stay of Encl 9. There were also less important applications with respect to the admissibility of affidavits in Encl 62 and Encl 71.

There was considerable argument on the sequencing of Encl 9 and the other Interlocutories.

On 17.4.2025, at the case management of that date, I decided to hear Encl 9 before Encl 13. I felt that as to the choice between Encl 9 and Encl 13, the application to protect the assets of Neumera, which may be at risk of misappropriation (Encl 9) should be heard before the application to protect the reputational risk to Nuemera (Encl 13). There was no appeal against this ruling.

On 29.5.2025, I ruled that Encl 9 was to be heard first before Encl 62 and 71.

The Respondents filed an Appeal (Encl 87) against my ruling to hear Encl 9 ahead of Encl 62 and 71 (“the Sequencing Appeal”). This was followed by Encl 99 which was filed by the Respondents on 13.6.2025 to stay Encl 9 pending the hearing of the Sequencing Appeal.

At the hearing of Encl 99, Counsel for the Petitioner claimed that Encl 99 was an abuse being yet another calculated attempt by the Respondents to obstruct Encl 9 in particular, by having the other Interlocutories heard first. Counsel effectively submitted that this was a glaring attempt being made in the face of substantial and compelling evidence which would result in a decision in Encl 9 adverse to the Respondents. I did not have to go as far as finding an abuse although I found that his arguments had considerable force.

In the end, I found that my ruling to hear Encl 9 first was non-appealable within ss. 3 and 68 of the Courts of Judicature Act. There was therefore no reason to preserve the unappealable Appeal by granting a stay pending the Sequencing Appeal. As such, I dismissed Encl 99.

My grounds on the sequencing of the Interlocutories and on the Encl 99 stay appear at Norliah bt A P Kunhibava v Mohd Noor Amin bin Mohd Noor Khan & Ors [2025] MLJU 2136 (“Nuemera No. 1”).

On 30.7.2025, the Respondents filed Encl 133 for leave to cross-examine the Petitioner and the deponents of affidavits filed in support of Encl 9. And with it, was yet another prayer for stay of Encl 9 pending completion of the cross-examination. I dismissed Encl 133 and the stay.

In relation to the application for cross, I noted that: “[6] The crux of the Respondent’s case in proposing Encl 133 is as set out their written submissions, Encl 144, at paras 3 to 6: ‘3. We will elaborate below, but the essence of the Respondents’ position in this application is that the affidavits filed by and on behalf of the Petitioner which are the subject of the intended cross examination, contain falsehoods and unsubstantiated conjectures.

The Respondents have filed affidavits seeking to refute the false and speculative allegations.

The outcome of all this is that this Honourable Court is confronted with evidence in all these affidavits proffered by both parties, which conflict diametrically. Factual disputes are glaringly apparent on their face.

The consequence of this is that Encl 9 cannot be allowed because unless the factual disputes are resolved, the Honourable Court would not be able to conclude that there is a prima facie case for winding up.’ [7] Therefore, Counsel for the Respondents maintains that Encl 133 is to resolve factual disputes on the conflicts of evidence in the affidavits filed. It was submitted that cross-examination was required to resolve such conflicts, which was necessary before Encl 9 could even be heard.”

It seemed obvious to me that the stated objective of the application for cross (Encl 133) was apparently to resolve the conflicts of affidavit evidence. This was simply inappropriate. In Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492, it was held bt the Court of Appeal at pp. 506-507 that: “One other point that is quite disturbing is the purported conclusions or findings that must have been derived from the materials before the learned judge. Obviously, she must have evaluated the several affidavits filed. But that approach would then be tantamount to conducting a trial by affidavits which should not be the case. Indeed, ‘in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit’ (see Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212).”

Indeed, in Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd (in receivership) [2018] 11 MLJ 684, Mohd Nazlan Mohd Ghazali J (as he then was) said in relation to Maril-Rionebel (supra): “[21] Whilst the said decision was critical of striking out application against petitions, I take the view that the underlying basis for such a stance would apply equally to the application to cross-examine, as it is not specifically provided for in the CA or the Companies Winding-Up Rules 1972, which have been promulgated to achieve expeditious disposal of the petitions in the first place’’

And I concluded that: “[49] Lastly, I am reminded that it was claimed that the cross-examination was to allow the parties to proceed with the hearing of Encl 9. But the test for the appointment of the IL is merely to show that the winding up of Neumera was likely and that there was only a risk of dissipation of Neumera’s assets. There is no necessity to resolve factual disputes to definitively arrive at a conclusion that Neumera will be wound up and there have been actual dissipation of assets. That is for the Petition. [50] Accordingly, no useful purpose would be served to order cross-examination. In the end, what became obvious is that the Respondents could have simply fought Encl 9 instead of making these numerous applications and manoeuvres to stay Encl 9, which shows an intention to evade and delay Encl 9.”

I was perplexed by the position taken by Counsel. It was more than obvious that Encl 133 would fail for trying (through cross) to resolve conflicts of affidavit evidence in Petitions at an interlocutory stage. Justice Nazlan in Nasser Ali (supra) at para 30 above, made this clear.

Even if an attempt to resolve factual disputes through cross was legitimate (which it is not), there was simply no need to resolve factual disputes here as the test for the appointment of interim liquidators is whether it was only likely that a winding up order would be made against Nuemera. This could be established on the conflicting affidavits themselves.

Encl 133 was, in my mind, destined to fail, which really brings into question the real purpose of Encl 133. In my mind it was nothing more than a thinly veiled attempt to obtain a stay of Encl 9.

In relation to the application for a stay in Encl 133, I noted that the Respondents had already filed 5 formal applications to stay Encl 9: a. Encl 13, which, in addition to an order to strike out the Petition, seeks to stay the Petition and Encl 9 pending its disposal; b. Encl 19 for, amongst others, an ad-interim stay of Encl 9 and the advertising and gazetting of the Petition, pending the determination of Encl 13; c. Encl 99, for, amongst others, an order to stay Encl 9 pending the final determination of the Appeal, which was dismissed on 9.7.2025; d. a Notice of Motion dated 14.7.2025 filed in the Court of Appeal to stay Encl 9 pending disposal of the Appeal. The Motion was dismissed on 22.7.2025; e. and now, Encl 133 (to stay Encl 9 pending completion of the cross examination).

Although I was reluctant to find an abuse in the application for the stay in my first decision in this sage, being the sequencing decision in Nuemera No. 1, I was persuaded that all 5 stay applications including Encl 133 were unashamedly filed as a tactic to delay Encl 9 and were an abuse. My grounds are at Norliah bt A P Kunhibava v Mohd Noor Amin bin Mohd Noor Khan & Ors [2025] MLJU 3750 (“Nuemera No. 2”).

On 25.9.2025, the Respondents filed Encl 157 to recuse me from hearing this case and containing yet another prayer to stay of proceedings which would naturally include and constitute a 6th application to stay Encl 9.

The basis for recusal in Encl 157 is that I am guilty of apparent bias as I have predetermined the outcome of Encls 9 and 13, in that I have predetermined that Encl 9 will succeed and Encl 13 will be dismissed.

Before I start with the merits of Encl 157, I must say that an accusation of bias, apparent or otherwise, is an extremely serious allegation, see Deleum Primera Sdn Bhd v Mazrin bin Ramli & Ors [2021] 11 MLJ 100. Particularly if the allegation is made on flimsy grounds which no doubt will interfere with the judicial independence conferred on the Judge.

Such an allegation will have a profound effect on the Judge and an instinctive reaction may be to walk away from the case.

However, in Pembinaan BLT Sdn Bhd v Debessa Development Sdn Bhd [2015] 9 MLJ 335, Mary Lim J (as she then was) warned that under any test, a Judge must not lightly recuse oneself. Judges are to carry out their duties in accordance with their oath of office.

In Delium, Ong Chee Kwan J (as he then was) held at para 47 that It would be a gross dereliction of duty for a judge to disqualify himself where there was no real danger of bias in hearing the case and ‘an application for recusal with no appropriate grounds ought to be treated as an attempt to interfere with the administration of justice’.

In Wong Kie Chie & Ors v Katheryn Ma Wai Fong & Anor and other appeals [2017] 3 MLJ 350, Vernon Ong J (as he then was) also cautioned that a Judge should be vigilant not to allow parties to judge-shop through a recusal. At para 41: “[41] Accordingly, judges should balance properly their competing duties as judges when recusal applications fall to be decided by them. Settled principles dictate that judges have a duty to sit and adjudicate on cases allotted to them, displaced only when there are objectively justifiable grounds for recusal, that litigants cannot judge-shop and judges cannot case-shop and that the administration of justice is served as much by a fearless and confident Judiciary as by a fair Judiciary (Inappropriate Recusals).”

As such a Judge will not readily abandon his duty and accede to an unmeritorious application to recuse. With the warnings of my fellow Judges in mind, I do not intend to either.

It is clear that the burden to prove apparent bias will be on the party alleging apparent bias. It is a high burden, see the Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasamasama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 (FC) and in Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321.

In Bar Council Malaysia v. Tun Dato' Seri Arifin bin Zakaria & Ors. (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773, a panel of 6 Judges of the Federal Court approved and adopted the test in Porter v. Magill [2002] 2 AC 357, being the test of the 'fair-minded and informed observer'. The Federal Court held: “[35] The current test is as distilled by Lord Hope in Porter v Magill [2002] 2 AC 357 at [103]: ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’ [36] The test is an objective one. The knowledge and disposition of the hypothetical observer were further explained in Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731; [2006] UKHL 2 at para [17]: ‘The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matter, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson v Johnson [2000] 201 CLR, 488, 509, para 53, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.”

What is in the mind of the Judge under scrutiny is not important. It is the public perception of the conduct of the Judge that is the basis of the test. In Locabail (U.K.) Ltd v Bayfield Properties Ltd [2000] QB 451 at para 19, the Court of Appeal in England framed the question thus: “...it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision.”

In short, the assessment must be objectively viewed through the eyes of a fair-minded, informed hypothetical observer who is neither complacent nor unduly sensitive or suspicious. The test is whether objectively viewed, the public perception of the conduct of the Judge is that there is a real possibility of bias on the part of the Judge, see Lawal v Northern Spirit Ltd [2004] 1 All ER 187 at para [14] and Porter v. Magill (supra).

The entire basis of the Recusal Application is that I had predetermined to grant the application for the IL under Encl 9 and to refuse the striking out under Encl 13.

The law is clear. Predetermination by a Judge is impermissible. On the other hand, it is to be contrasted with predisposition which is natural and permissible. The difference was explained in National Assembly for Wales v Condron & Anor [2006] EWCA Civ 1573, by the Court of Appeal in England at para 43: “We were referred to various cases in which the distinction has been drawn between a legitimate predisposition towards a particular outcome (for example, as a result of a manifesto commitment by the ruling party or some other policy statement) and an illegitimate predetermination of the outcome (for example, because of a decision already reached or a determination to reach a particular decision). The former is consistent with a preparedness to consider and weigh relevant factors in reaching the final decision; the latter involves a mind that is closed to the consideration and weighing of relevant factors.”

As such, the entire basis of Encl 157 is my predetermination of Encl 9 and Encl 13 when I approached them with a closed mind, see the decision of the Appellate Division of the Singapore High Court in Png Hock Leng v AXA Insurance Pte Ltd [2022] 1 SLR 1463 at para 16.

However, this is to be distinguished from a case where a judge has a predisposition which ebbs and flows with the evidence and submissions, prior to a final decision. As accepted by the Respondents at para 17 of its Consolidated Submissions, this is entirely natural and acceptable. It is also acceptable for the Judge to form preliminary views on the issues.

Mohd Arief Emran Arifin J in Elaine Gay Chow Song & Anor v Suruhanjaya Syarikat Malaysia & Ors [2024] MLJU 3207 at para 45 accepted with approval the following passages of the Singapore Court of Appeal in BOI v BOJ [2018] SGCA 61, dealing with prejudgment and predetermination. “Prejudgment … The primary objection against prejudgment is the surrender by a decision-making body of its judgment such that it approaches the matter with a closed mind (Sim Yong Teng at [50]). While it has been said that prejudgment is distinct from (though related to) apparent bias (see the Singapore High Court decision of Public Prosecutor v Chua Siew Wei Kathleen [2016] 2 SLR 713 ("Kathleen Chua") at [24]), the preponderance of authority has referred to prejudgment as something that amounts to apparent bias. Locally, in Sim Yong Teng, the appellants' argument on prejudgment or predetermination was characterised as an apparent bias argument (at [47]). … To this, we would add the following. Judges are obliged to make the effort to prepare for a hearing beforehand and inevitably, provisional views and conclusions would be formed during such preparations: see the decision of this Court in Prometheus Marine Pte Ltd v King, Ann Rita and another appeal [2018] 1 SLR 1 ("Prometheus") at [39]. The court in Prometheus also noted that an open mind does not mean an empty mind and it is consistent with the judicial function to pose provisional views and concerns to counsel for them to be addressed. Indeed, as the court went on to observe, citing Re Shankar Alan, counsel are often assisted by the chance to peek into the judicial mind as they then have the opportunity to persuade the court to come to a different view if they so wish. The same view was expressed in Johnson at [13]. The High Court of Australia noted that the reasonableness of any apprehension of bias was to be considered in the context of the exigencies of modern-day practice and the need for active case management. Judges could not be expected to sit mute until the presentation of the parties' cases was over, and prejudgment could not be made out solely because tentative views reflecting a certain tendency of mind were expressed during exchanges with counsel.”

At the outset, I note that the reviewing Court ought not to consider grounds which were not raised in the recusal application when deciding on the same, see Deleum Primera (supra) at para 54. I will therefore confine these Grounds to the grounds raised by the Respondent in its submissions.

These grounds are as set out in Respondent Counsel’s Submissions in Encl 209, as summarised in the Executive Summary and at paras 26 to 34.

This is what is said in the Executive Summary: “4. This risk of apparent bias is not predicated upon any single isolated ruling or the exercise of case management direction in a vacuum. Rather, central to the perception of predetermination is: a. The series of shifts in the Honourable JC's direction regarding the sequencing of Enclosures 9 and 13, which prioritized Enclosure 9 over 13: i. The Court's initial direction that Enclosure 9 should be heard in priority over Enclosure 13. ii. The Court later changed direction on 5.5.2025 ordering that Enclosures 62 and 71 be heard before Enclosure 9 and 13 to resolve the status of impugned affidavits. iii. The reversal of this position, changing the direction back to hearing Enclosure 9 first. b. The repeated expression that this Honourable Court did not intend to allow the matter to descend into a trial on the affidavits, which in the context of this litigation effectively indicating that Enclosure 13 would be dismissed. c. A determination by this Honourable Court, in the grounds of decision of Enclosure 133, whereby this Honourable Court made explicit findings of bad faith and "abuse of process" against the Respondents.

These events, taken cumulatively, have the effect of establishing a real risk of apparent bias because Enclosure 13 represents the Respondents position as to why Enclosure 9 should not be allowed.”

From the above it can be seen that the gravamen of the Respondents’ complaint is the ‘series of shifts’ in direction that I took with respect to the sequencing of Encl 9 and 13. And the applications to expunge (Encl 62) and admit (Encl 71) the 3 Affidavits, referred to in para 20 above.

And this is what is said in the body of Encl 209. “29. On 5 May 2025, this Honourable Court ordered that Enclosures 62 and 71 be determined before Enclosure 9 to settle the evidentiary record.

However, on 29 May 2025, this Honourable Court shifted this position, allowing the Petitioner to withdraw the affidavits to advance Enclosure 9 immediately. The Respondents submit that the justifications provided for this shift are objectively irreconcilable with the prior direction: a. This shift in position was ostensibly justified by the acceptance of the Petitioner's position to abandon the impugned affidavits for the purposes of Enclosure 9. However, this was not objectively what happened. i. Firstly, the shift in decision not to hear Enclosure 9 happened before the Petitioner even expressed the intent to abandon the affidavits. ii. Secondly, and in any event, the indicator that the Petitioner sought to rely on to suggest that it was always the Petitioner's position that they did not require the affidavits happened prior to the Honourable Court express direction to hear Enclosure 62 and 71 first. iii. It is therefore untenable to suggest that the shift in position on 29 May 2025 was a product of a concession by the Petitioner.

This perception was reinforced by repeated indication from this Honourable Court that Enclosure 13 would not be heard because it would descend into a trial of the affidavits. This expression was repeated throughout the proceedings every time Enclosure 13 was referenced and leading up to the Grounds of Decision on the "batting order".

In the Grounds of Decision on the "batting order", this Honourable Court indicated that Enclosure 13 should be avoided as it would "inevitably descend into a trial on affidavits" and "delay the Petition". This expression appeared again several times after the grounds of decision were delivered. With respect, the manner in which this expression was conveyed did not indicate that there was any room for Enclosure 13 to be argued. The objective record indicates that this expression was used at least six (6) times throughout the proceedings.

This was further compounded by the Court's findings in the dismissal of Enclosure 133, where the Respondents' stay and cross-examination applications were characterised as "nothing more than a tactic to delay Enclosure 9" and an "abuse of process".

Viewed through the eyes of a fair-minded and informed observer, the cumulative effect of these rulings gives rise to the reasonable perception of prejudgement. The perception of the fair-minded and informed observer is that there has already been predetermination that Enclosure 9 should proceed because Interim Liquidators should be appointed as there has been misuse of company's funds.”

In short, it is said that I had predetermined that Encl 9 will be granted and Encl 13 will be dismissed. This is said to constitute apparent bias within Porter v Magill (supra) at para 103, which provides: ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

The facts relied on are essentially 2 events, both involving the sequencing of the Interlocutories: a. the first is the decision on 17.4.2025 to hear Encl 9 before Encl 13; b. the second is the decision on 29.5.2025 to hear Encl 9 before Encl 62 & 71.

At the Case Management before me on 17.4.2025, I decided on the sequencing of Encl 9 and Encl 13. Mr. Liew sought to impress on me that Encl 13 should be heard before Encl 9 as it would fully dispose of the Petition. And further, it would prevent reputational damage to the Respondent by a pending Winding-Up Petition.

I was not in favour of this approach given the nature of the allegations made in the Petition. As explained above, the said allegations are based on breaches of directors’ duties and misapplications of assets and fraudulent acts are heavily disputed. These could not be resolved on affidavit see my reasoning in Nuemera (No.1) at paras 21, 40 to 41. This is an age-old rule, as per Lord Diplock in Eng Mee Yong v. Letchumanan.

In short, I felt that with the nature of these allegations, Encl 13 would descend into a trial on affidavits which would delay the Petition. I felt bound to follow 2 decisions of the Court of Appeal.

The first is Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492, where Richard Malanjum JCA (as he then was) in delivering the judgment of the Court of Appeal, said that the decision would involve an evaluation of affidavits, which would be tantamount to a trial on affidavits, which is inappropriate (at pp. 506-507): “Accordingly, it is our view that it was premature or even presumptuous to make the findings, conclusions and inferences as the court below did when it was only at an interlocutory stage. … One other point that is quite disturbing is the purported conclusions or findings that must have been derived from the materials before the learned judge. Obviously, she must have evaluated the several affidavits filed. But that approach would then be tantamount to conducting a trial by affidavits, which should not be the case. Indeed, ‘in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit’ (see Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212).”

Secondly, in Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd & Other Appeals [2001] 4 MLJ 187, Abdul Hamid Mohamad JCA (as he then was) stated as follows: “As pointed out by my learned brother Gopal Sri Ram JCA, the unhealthy trend is, upon being served with a petition, instead of defending the petition proper at the hearing of the petition, the respondent makes all kinds of interlocutory applications. That would invariably stall the hearing of the petition proper. If the application is dismissed, the respondent would appeal to the Court of Appeal or may even try to go further, further delaying the hearing of the petition … One of the most abused procedure adopted in winding up proceedings is the application to strike out the petition under O. r. 19 of the RHC 1980 and/or the inherent jurisdiction of the court. … It is important that the procedure applicable in a writ action should not be incorporated into a winding-up proceeding. It is not meant to be. … it is timely that my learned brother Gopal Sri Ram JCA and this court come out strongly against such practice, which, at the very least is delaying the hearing and disposal of winding-up petitions, which is unfair to the petitioners and clogging the court docket.”

For completeness I refer to Blue Valley Plantation Bhd v Periasamy a/l Kuppannan & Ors [2011] 5 MLJ 521, the Federal Court adopted this approach. Tun Zaki Tun Azmi held: “As regards applying to strike out a petition to wind up a company, I would like to reaffirm the sentiments expressed by Abdul Hamid Mohamed J (as he then was) regarding invoking O 18 r 19 to strike out a petition to wind up a company. … These views were further reiterated by Richard Malanjum JCA (as he then was) in Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492 but he also considered that in appropriate cases that procedure may be applicable: ‘We find the philosophy implicit in the above statements convincing and adopt it in affirming the view that an application made pursuant to O 18 r 19 of the RHC to strike out a petition presented under s 218 of the Act is undesirable and should be discouraged. … In our view, the background facts of each case are relevant to determine whether a striking out application is appropriate. For instance in the present case, we find that there are matters that cannot be disposed of summarily yet the learned judge in the court below found them as facts.’ Even in this case before us, the petition could have just been remitted to the High Court since the grounds sought to strike out the petition could be raised at the hearing of the petition itself.”

There it is. The Federal Court noted that the grounds of the striking out could be raised at the Petition itself. This would prevent striking out applications from stalling the Petition.

Similarly, the same result was achieved in Barisan Performa Sdn Bhd v Hype Park City Sdn Bhd [2018] MLJU 10, Mohamed Zaini Mazlan J (as he then was) said this: “[29] I now come to the respondent’s application to strike out. As I had mentioned earlier in this judgment, the respondent has sought to rely on the same grounds that it had ventilated in opposing the petition. It would have saved the court much valuable time had the respondent elected to ventilate its grounds only in the contesting the winding-up petition. There was no necessity for it to file an application to strike out the petition. [30] Abdul Hamid Mohamad JCA (later CJ) in Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd & Other Appeal [2001] 3 CLJ 248 (CA), had stern words to say regarding unnecessary striking out applications filed by respondents: … In reality, it delays the hearing of the petition. Whenever there is such an application, inevitably, the hearing of the petition is delayed. Not only will the petition be adjourned for the application to be heard first, but if dismissed, there will be an appeal to the higher court(s). [p 267] [31] I had for this reason directed that the striking out application be heard simultaneously with the petition.”

I have taken this approach, to hear the striking out together with the Petition, on several occasions. The issues in the striking out would normally be similar to the issues as in the Petition. It is not an approach that I took peculiarly to this case.

I suspect that the Respondents may have misunderstood the purpose of the approach suggested in Maril-Rionebel (supra). The approach is not to dismiss striking out applications without exception. Although the Court would be circumspect in hearing such striking out applications, there may be cases where the striking out of a Petition could legitimately be ordered, see Ho Num Chon & Anor v Tech-Lab Manufacturing Sdn Bhd [2017] 9 MLJ 32 at paras 23 to 24, per Mohd Nazlan JC (as he then was) and the decision of the Federal Court in Blue Valley Plantation (supra) itself.

This is not such a case. The complex allegations made would not allow a satisfactory resolution, see paras 62 to 63 above.

However, the general approach resulting in the order in Barisan Performa (supra) is designed to prevent interlocutory applications such as strikings out, to delay the disposal of the Petition. The general approach is to hear the striking out together with the Petition.

In my Grounds in Nuemera No. 1 on the “batting order”, a loose description of the sequencing issue, I explained why Encl 9 should be heard before Encl 13.

First, Encl 13 is a striking out (which is highly criticized when filed in a Petition) as it would "inevitably descend into a trial on affidavits" within Tan Kim Hor (supra) and "delay the Petition" within Maril Rionebel (supra).

Secondly, the decision as to the sequencing of Encl 9 and Encl 13 would also involve a balancing exercise; balancing the interests of the parties in the context of the applications. As to the choice between Encl 9 and Encl 13, the analysis involves balancing the need to protect the reputational risk to Nuemera, as against protecting its assets, which may be at the risk of misappropriation. In my judgment, the application to protect the assets of Nuemera (under Encl 9) should be heard first as it outweighs the need to hear any application to protect reputational risk by a striking out (under Encl 13).

The balance was in favour of hearing Encl 9 first, particularly given the allegations of misapplication of Nuemera’s substantial funds deposited in the client’s account of Mr. Liew’s firm’s clients’ account. The decision was only in respect of the sequencing of Encls 9 and 13 without any predetermination. Both applications remained very much alive. As such, on 17.4.2025, I decided that Encl 9 be heard before Encl 13.

That decision had nothing to do with the contest involving Encl 62 and 71. That only arose after 28.4.2025, when Encl 71 was filed. This is dealt with below.

I must point out that the ground relied on in Encl 157 only relied on Encl 13 and Encl 9.

For the reasons set out below, I cannot see how an objective bystander would view my decision to hear Encl 9 ahead of Encl 13 as showing a real danger that I predetermined the result of Encl 9 and Encl 13.

First, as stated in paras 57 and 58 above, the Respondents rely heavily on ‘shifts’ to show apparent bias. However, there were no ‘shifts’ in the decision to hear Encl 9 ahead of Encl 13. That decision was made on 17.4.2025 and it stayed that way.

The ‘shifts’ only involved the decisions on 5.5.2025 and 29.5.2025, which only concerned the contest between Encl 9 over Encl 62 & 71. This contest only arose when Encl 71 was filed, well after my decision on 17.4.2025 dealing with the sequencing of Encl 9 and Encl 13. This is the Second Event and will be dealt with later in these Grounds.

Secondly, the Respondents did not appeal my decision on 17.4.2025 to hear Encl 9 ahead of Encl 13. This is particularly telling. It is remembered that the claim is that my alleged predetermination was in place since ‘inception’. ‘Inception’ could be the date of the Petition (23.1.2025), Encl 9 (24.1.2025) or at the latest, Encl 13 (13.2.2025). The Respondent’s case that such predetermination occurred since ‘inception’ must mean that it must have been in place at the date of and tainted my decision of 17.4.2025.

But no contemporaneous challenge of my decision on 17.4.2025 for alleged predetermination was made. There was no appeal. The bona fides of the accusation of apparent bias in the Recusal Application for predetermining Encl 9 and 13, is questionable.

Thirdly, the basis of the decision and the language used was obtained from 2 decisions of the Court of Appeal in Tan Kim Hor and Maril Rionebel.

This is, in my mind, where the Respondent’s case theory fails.

I cannot see how the test in Porter v. Macgill is satisfied. I do not see how an objective observer could think there was a real possibility of predetermination, when all I did was to rely on and follow 2 decisions of the Court of Appeal, by which I am bound. That I was so bound was made clear in my Grounds dated 18.7.2025 at paras 41 to 44, well before the filing of the Recusal Application on 25.9.2025; there was therefore no question of any ex post facto justification by relying on these decisions.

Fourthly, the Respondents equate the sequencing of Encl 9 before Encl 13 as showing a ‘closed mind’ in that the decision on 17.4.2025 showed that the there was no longer any room for argument on the merits of either application.

However, the sequencing of Encl 9 over Encl 13 is an ordinary case management decision which was open for me to make. Further, a decision that an urgent application be heard first does not amount to a finding that it will ultimately succeed. It certainly cannot lead to the inference that Encl 9 will be allowed and Encl 13 will be dismissed. Both applications remained live and intact. All my decision indicates is that Encl 9 should be heard first and not that it would be granted.

In my mind, there is no basis for alleging that Encl 9 and Encl 13 were predetermined.

After the 3 Affidavits were filed on 4.4.2025, Encls 62 & 71 then entered the mix.

92.

The contest then arose in the sequencing of Encl 9 and 62 & The hearing of Encl 13 was no longer in issue. This is accepted in para 29 of the Resp’s submissions in Encl 209. 35 93. However, I note that in the Executive Summary, of Encl 209, there is a misstatement which draws Encl 13 back into the sequencing contest between Encl 9 and Encl 62 & 71. At para

a. ii, it is said: “a. The series of shifts in the Honourable JC's direction regarding the sequencing of Enclosures 9 and 13, which prioritized Enclosure 9 over 13: i. The Court's initial direction that Enclosure 9 should be heard in priority over Enclosure 13. ii. The Court later changed direction on 5.5.2025 ordering that Enclosures 62 and 71 be heard before Enclosure 9 and 13 to resolve the status of impugned affidavits. iii. The reversal of this position, changing the direction back to hearing Enclosure 9 first.”

This is simply not true. The sequencing of Encl 9 and Encl 13 was decided on 17.4.2025 and not 5.5.2025; this never changed. The change from hearing Encl 62 & 71 first to hearing Encl 9 first was (as explained in para 100 below) triggered by Mr. Liew’s argument that Encl 9 will be delayed until after consequential orders were made on Encl 62 & 71. ‘Ebbs & Flows’ & an Open Mind

The Court's initial direction on 17.4.2025 was that Encl 9 should be heard ahead of Encl 13. That has been dealt with above.

96.

At the CM on 5.5.2025, I wanted to fix hearing dates for Encl After hearing Mr. Liew’s persistent and incessant arguments, I agreed to hear Encls 62 & 71 first and then to immediately hear Encl 9.

But Mr Liew objected. He said that once Encls 62 & 71 were decided, there may be a need for consequential orders and thus Encl 9 could not be heard immediately thereafter. This would mean Encl 9 would be further delayed.

I was not prepared to allow a delay of Encl 9 in this fashion. As I explained in Nuemera (No. 1) at paras 50 to 55, I decided (later in the same CM on 5.5.2025) to fix all 3 Enclosures for hearing on 29.5.2025 as I was not happy that Encl 9 may be delayed. I would then decide sequencing.

From the Extract of the Notes of Proceedings prepared by the Respondents in Encl 209, I said this after the Respondents raised the issue of the consequential orders after deciding Encl 62 & 71: “YA: "Wait, I'm fixing all three on the same day... We will deal with it... once a decision is made ...”.

On 29.5.2025, Mr. Liew again maintained that Encls 62 and 71 should be heard first. He again argued that the status of the 3 Affidavits should be decided first by disposing of Encl 62 (to expunge the 3 Affidavits) and Encl 71 (to admit the 3 Affidavits) before Encl 9 may be heard. The crux of his submission was just the same: that it is only after the resolution of the disputed evidence (by Encl 62 & 71), could Encl 9 be heard.

My final decision was to hear Encl 9 before Encls 62 & 71 as the need for consequential orders after the hearing of Encls 62 & & 71 could delay the hearing of Encl 9. Encl 9, it is remembered is an urgent application, filed under a Certificate of Urgency. I was not prepared to delay Encl 9, in this fashion. It was the only pending application that was urgent.

Counsel for the Petitioner, Mr. Ranjit Singh, undertook not to rely on the 3 Affidavits for the purposes of Encl 9. There was therefore no reason to hear Encl 62 and 71 before Encl 9. For the purposes of Encl 9, Encls 62 & 71 were therefore rendered moot.

As such, I cannot see the basis of any complaint against my decision to hear Encl 9 first. The Court of Appeal in dealing with yet another application to stay Encl 9, held that the decision to hear Encl 9 first was perfectly acceptable given the stance taken by Counsel of the Petitioner. The decision of the Court of Appeal and its Broad Grounds are dealt with separately at para 113 below.

It is remembered that these ‘shifts’ were the basis of the claim of predetermination of Encl 9 and Encl 13 (see at para 4a of the Executive Summary at Encl 209).

First, I fail to understand how my decision on 29.5.2025 to hear Encl 9 before Encl 62 & 71 was touched by the decision or ‘shift’ involving Encl 13. This decision on 29.5.2025 had nothing to do with Encl 13. The decision involving Encl 13 (Encl 9 first) was made on 17.4.2025 and it stayed that way. There was no shift involving Encl 13.

Secondly, I cannot see how the ‘shifts’ of sequencing on 5.5.2025 and 29.5.2025 meant that there was a predetermination of Encl 9 and Encl 13 with a ‘closed mind’ since ‘inception’ (being at the latest, 13.2.2025).

This is where the Respondents’ case theory of predetermination with a ‘closed mind’ also fails.

If anything, I was persuaded on 5.5.2025 by Mr. Liew’s persistent arguments, to hear Encl 62 & 71 first. And on 29.5.2025, I further changed my mind to hear Encl 9 first, due to a possible delay because of the consequential orders.

These ‘shifts’ do not show predetermination of Encl 9 since ‘inception’ at all. In fact, these shifts (5.5.2025 and 29.5.2025) show that I did not have a closed mind. But instead, that I had an ‘open mind’, being persuaded by Mr. Liew himself. And well after ‘inception.’

As such, there was no predetermination of Encl 9 by reason of these ‘shifts’ in the sequencing of Encl 9 over Encl 62 & 71.

As stated above on 30.5.2025, the Respondents filed the Sequencing Appeal (vide Encl 87) against my decision to hear Encl 9 ahead of Encl 62 & 71 in W-02(IM)(NCC)-1006- 06/2025. The Appeal had nothing to do with Encl 13, see Notice of Appeal, at Encl 87, which only challenged the sequencing of Encl 9 over Encl 62 & 71.

The decision on 29.5.2025 was followed by Encl 99 to stay Encl 9 pending the hearing of the Appeal. I dismissed Encl 99 (see my reasons in Nuemera (No. 1) at paras 57 to 63).

The Respondents again applied for a stay of Encl 9 but this time in the Court of Appeal. On 22.7.2025, the Court of Appeal dismissed this stay and delivered Broad Grounds, which is worth reproducing in full: “Broad Grounds [1] The motion before us is Enclosure 3. The appellant seeks a stay of proceedings in respect of the application for the appointment of an interim liquidator in the High Court (Enclosure 9). This application was filed by the respondent, who is the petitioner in the pending winding-up petition. Enclosure 9 is presently part-heard before the High Court. The respondent's petition is premised on an alleged loss of substratum and a breakdown of mutual trust. [2] Following the filing of the application in Enclosure 9 by the respondent, the appellant proceeded to file Enclosure 13, seeking to strike out the petition. Affidavits were filed in support of both Enclosure 9 and Enclosure 13. Subsequently, the respondent gave notice of intention to rely on three affidavits, initially filed in support of Enclosure 13, for the purposes of the hearing of Enclosure 9. The appellant responded by filing two applications to contest the use of those affidavits in Enclosure 9. [3] The High Court, however, elected to proceed with the hearing of Enclosure 9 without first determining the appellant's two applications challenging the use of the said affidavits. As noted, Enclosure 9 remains part-heard at this stage. [4] In the interim, the appellant lodged an appeal to this Court, seeking to impugn the "decision" of the High Court in proceeding with the hearing of Enclosure 9 without first determining the two applications relating to the disputed affidavits. Pending the hearing of that appeal before this Court, the appellant has now filed the present motion seeking a stay of proceedings with respect to Enclosure 9. [5] In our considered view, the instant motion to stay proceedings in the High Court in Enclosure 9 is entirely devoid of merit. We are satisfied that the High Court acted within its discretion in proceeding with the hearing of Enclosure 9, i.e. the application for the appointment of an interim liquidator. Our broad reasons are as follows. [6] At the commencement of the hearing of Enclosure 9, learned counsel for the respondent expressly placed on record that, notwithstanding the notice of intention filed earlier, he would not be relying upon the three affidavits in question. In such circumstances, the learned High Court Judge was clearly entitled to exercise his discretion to proceed with the hearing of Enclosure 9, without awaiting the disposal of the two applications filed to challenge the use of those affidavits. This was, in essence, eminently a case management direction well within the discretion of the High Court as the court of first instance. [7] We also can see no prejudice occasioned to the appellant The very object of the appellant's two applications is to prevent the use of the said affidavits in Enclosure 9. That objective was, in effect, achieved once counsel for the respondent confirmed that those affidavits would not be relied upon. If the affidavits were otherwise objectionable or prejudicial, that would be a matter more properly addressed in the context of Enclosure 13. That, however, does not justify delaying the hearing of Enclosure 9, especially where the issue of the use of those affidavits has now become academic. [8] For these broad reasons, we dismiss Enclosure 3 with costs in the sum of RMl0,000.00, payable by the appellant to the respondent.”

This finding of the Court of Appeal is entirely consistent with the decision in AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921, where the learned High Court Judge in England held that a decision as to sequencing, is a matter for the Court itself and no party to a claim can demand that it be heard before or after any other claim. The learned judge at first instance in AB (Sudan) (supra), held at paras 27-28: “27 … Decisions as to listing, and decisions as to which cases are to be heard at any particular time are matters for the court itself and no party to a claim can demand that it be heard before or after any other claim. The court will want to deal with claims before it as expeditiously as is consistent with justice.”

The learned Judge also noted that the Court in question would want to deal with claims expeditiously. The decision was upheld by the Court of Appeal.

In the Broad Grounds above, the Court of Appeal held that my decision on sequencing, to hear Encl 9 before Encl 62 & 71 is a case management decision which I was fully entitled to make; and that the decision on the admission of affidavits (in Encl 62 & 71) did not justify delaying Encl 9.

The decision of the Court of Appeal in para 113 above is important. It justifies my decision not to delay Encl 9 even though my decision to proceed with Encl 9 over Encls 62 & 71, was made on 29.5.2025.

However, it appears that no question of apparent bias or predetermination was raised at the hearing of the Court of Appeal, even though the Respondents say that my predetermination was present since ‘inception’. Which, at best, means 13.2.205, see para 83 above.

In my mind, the decision of the Court of Appeal validating my decision to hear Encl 9 over Encl 62 & 71 ends the 2nd Event.

For the reasons set out above, I find it difficult to find that a fair-minded reasonable observer there was a real danger that I had predetermined the result of Encl 9 and Encl 13. The high burden to satisfy the test in Porter v Magill has not been met. The 2 Events relied on (see para 61 above) are of no help to the Respondents even if viewed cumulatively, as submitted by Mr. Chetan.

In short, the decision on 17.4.2025 to hear Encl 9 over Encl 13 was based on the decisions of the Court of Appeal in Tan Kim Hor (supra) and Maril-Rionnebel (supra) was to avoid stalling the Petition by dealing with interlocutory proceedings such as a striking out in complex cases which are heavily disputed.

Counsel’s submission at the Executive Summary at para 4 b. that there has been a predetermination that Encl 13 will be dismissed, is unjustified.

Secondly, it is argued that there were ‘shifts’ in the directions I took on the sequencing of Encl 9 and Encl 62 & 71. The first ‘shift’ was when I agreed to hear Encl 62 & 71 ahead of Encl 9, which was made after hearing the persistent arguments of Mr Liew on 5.5.2025 and 29.5.2025. These shifts show that I was open to persuasion and could not have had a ‘closed’ mind on Encl 9 and Encl 13, which I was accused of having since ‘inception’, being from mid-February 2025 at best.

Thirdly, these sequencing decisions are case management decisions and cannot be dictated to by the parties, see AB Sudan (supra) at para 116 above, and the Court of Appeal in its Broad Grounds at para 117 above.

I find that the Respondents have failed to satisfy me that a fair-minded and informed observer, would conclude that there was a real possibility that I was biased or that I have predetermined Encl 9 and Encl 13.

I go further.

In this respect, I found that Encl 133 with a prayer for stay was an abuse, designed to delay Encl 9, see my Grounds in Nuemera (No. 2). This Encl 157, which also included a prayer for stay was filed late in the night on 25.9.2025, the day before (26.9.2025) Counsel for Nuemera was due to continue and complete his submissions on Encl 9.

On 26.9.2025, Counsel asked for a stay of all proceedings pending the determination of Encl 157. It seems obvious that the objective of Encl 157 was to stay Encl 9, which it did. In this regard, Encl 157 is the 6th application for stay of Encl 9.

Mr. Ranjit Singh suggests the true reason for the filing of Encl 157 to delay Encl 9as it may well result in the appointment of the IL which would involve an examination and investigation of the payments of RM93.25 million to ZIST. Encl 157 is the 6th attempt of the Respondents to obtain a stay of Encl 9. See para 36 above for the previous 5 applications. This concerted effort lasted over a period of 1 year to defeat the Petitioner’s efforts to have Encl 9 heard.

I also agree that Encl 157 was filed for the collateral purpose of obtaining a stay of and/or to delay the hearing of Encl 9.

The Bar also took the view that Encl 157 was yet another attempt by the solicitors to derail proceedings that may expose them to investigations into their conduct of dispersing Nuemera’s monies through their client’s account.

Further, the Bar opined that the Respondents’ attempt to present a routine case management interlocutory ruling as evidence of bias is improper, unsustainable and amounts to an abuse of process and is “an attempt to interfere with the administration of justice”, see para 37 of Encl 181, the Submissions of the Bar.

It may well be that the Respondents prefer me not to hear the case given their string of losses thus far. If so, this would also be improper to engage in judge shopping.

After an examination of the objective facts, I also find that the allegation of predetermination of Encl 9 and Encl 13, which forms the basis of Encl 157 is flimsy. I also find that Encl 157 was made in a strained and cavalier manner within the dicta of Ong Chee Kuan J in Delium (supra) at para 52.

It follows that Encl 157 for recusal with no justiciable grounds was made in bad faith and ought to be treated as an attempt to interfere with the administration of justice.

In this respect, the initial iteration of the application and the affidavit in support included some very serious allegations against me. Counsel for the Petitioner submitted that these amounted to allegations of actual bias.

I may be speculating but this may have led to the retention by the Respondent of ‘independent counsel’ in Mr. Chetan Jethwani. This suggests that the then lead Counsel, Mr. Liew, was not independent, which was also suggested by the Bar, see Bar’s submission dated 11.12.2025, para 5(8). That may well be correct, considering that the RM93.25 million passed through the clients account of Z1ST, in which Mr. Liew is a named partner. When I first started hearing the case, I did ask Mr. Liew in the presence of Mr. Ranjit Singh, he should decline to act and whether it was appropriate for his him to continue. He said all the allegations may be explained and proceeded.

The initial allegations of actual bias were sought to be withdrawn by a clumsy affidavit and an apology by Independent Counsel on behalf of those responsible for the offending affidavit. I note that at no time did the then Counsel, Mr. Liew and Mr Devaraj ever offer an apology personally. Although the apology was well delivered by Mr. Jhetwani, it seemed hollow and contrived, designed to avoid an allegation of contempt.

I therefore dismissed Encl 157 with costs on an indemnity basis to be paid forthwith. Such costs should be borne by the 1st to 3rd Respondents on a joint and several basis.

The Respondents also attacked the Malaysian Bar as Amicus Curiae for being partisan and the subject of an irremediable conflict of interest. They ask for the Bar to be disqualified.

On 7.10.2025, I allowed the Malaysian Bar (“the Bar”) to hold a watching brief in respect of the Recusal Application. Thereafter, I invited the Bar to assist me as Amicus Curiae on 4.12.2025. The Respondents did not object to the appointment of the Malaysian Bar as Amicus.

After hearing submissions from all parties, I settled the remit of the Bar’s appointment thus: “Whether the recusal application, on the facts of this case, is sustainable and, if not, whether it constitutes an abuse of process that threatens the independence of the judiciary and thereby impairs the administration of justice?”, whilst reserving the right to limit the scope as the Honourable Court deems fit.

This scope of this appointment was to determine, on the facts, whether the Recusal Application in Encl 157 is an abuse of process.

The remit of the Bar’s appointment makes it clear that the Bar’s role as an Amicus was not that of a neutral spectator, but that of a friend of the Court to assist on whether the Recusal Application was an abuse. The role as amicus curiae in Malaysia is not (as in certain other jurisdictions) merely to assist on the law. In my mind, the practice in Malaysia is that the role of the Bar as Amicus to comment on the merits and to assist in the final decision of the Court on both the facts and the law. Of course, the Court must not wholly delegate its decision to Amicus. The final decision on both aspects remains with the Court.

For example, in Probil Sonati Development Sdn Bhd v. Hodan-R Sdn Bhd [2009] 7 MLJ 726, the Malaysian Bar as Amicus submitted on the merits of a recusal application that there was no sufficient cause shown to justify the recusal application.

Thus, as Amicus, the Malaysian Bar may submit on the merits of the case, and regardless of whom the submission favours, it cannot be regarded as a partisan contestant in the dispute, see Lim Tuck Sun v. Celcom (M) Bhd [2025] 4 MLJ 583 and Hodan-R Sdn Bhd v. Dato’ Mohd Hishamudin Hj Mohd Yunus [2007] MLJU 898.

As a start, I note that the position of the Bar as amicus will necessarily involve the Bar having an interest in the proceeding. If anything, such an interest will justify the Bar having a right to participate in these proceedings. And will prevent the Bar from being an officious bystander or a busybody.

An interesting observation on the role of amicus was made by the Supreme Court of Ireland in the recent decision in Kelly v University College Dublin and others [2025] IESC 15 is of particular interest. There, an attack was launched against both amici curiae asking that they be ordered to pay the costs of an unsuccessful appeal. It was said that the amici had become partisan, and/or made common cause with a party to the litigation. The amici were the General Council of the Bar of Ireland (“the Irish Bar Council”) and the Law Society of Ireland (“the Irish Law Society”).

The parallel with this case is obvious and compelling.

At para 17 et seq., the Supreme Court held with respect to the claim that amicus should pay the costs of the appeal: “17. … It is indeed regrettable that this argument was advanced at all. It may be that it flows from a misunderstanding of the proper role of an amicus curiae. …

An amicus curiae may therefore, either apply to join the proceedings or may be invited to do so. In most cases an amicus will point to considerable experience in the field which may allow the court to better understand the sweep of the issues involved and their possible impact. It follows therefore that an amicus will almost always have an interest in the case and if it is to perform its role in assisting the court in deciding the case, may well offer views as to the proper resolution of the case. As explained by Keane C.J. In I. v Minister for Justice, “there may be cases in which it would be advantageous to have the written and oral submissions of a party with a bona fide interest in the issue before the court which cannot be characterised as a meddlesome busy body”. Having an interest in the issue, and therefore the outcome, is a qualification for joinder as an amicus rather than a cause for criticism. It is noteworthy that the professional bodies were permitted to appear as amici in cases such as O'Brien v PIAB (No.1) [2005] IEHC 100, [2005] 3 I.R. 328, and Sheehan v Corr [2017] IESC 44, [2017] 3 I.R. 252.”

In this case, there can be no valid criticism of the approach of the amici curiae. They had a legitimate interest in making submissions since the issue raised the question of representation which was of relevance to members of each branch of the legal profession. The submissions made were of assistance, and objective.”

I accept these views of the Supreme Court of Ireland with gratitude.

Here, the Bar does have sufficient interest in the proceedings which will be relevant to the interests of the members of the Malaysian Bar, just as the Irish Bar Council and the Irish Law Society had in Kelly’s case (supra). In this regard, the role and functions of the Bar are governed by s. 42(1) of the Legal Profession Act 1976 (“LPA”), and in particular s. 42(1)(a), which Mr. Thiru suggests as being different to other jurisdictions. S. 42(1)(a) provides: “(a) to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour”.

It is said that the Bar has exceeded its remit.

In short, I find that the Bar has not exceeded their remit as disclosed to all parties. The Bar has taken the position that the Recusal Application based on the grounds relied on by the Respondents is in abuse of process, see para 37, Encl. 181. This is entirely within their remit.

The Bar is also accused of having a severe conflict of interest and was not impartial. Mr. Jethwani also confirms that there is no accusation of institutional bias against the Bar. The complaint is one of conflict and with it, a claim of non-disclosure of these instances of conflict: a. the suits involving ZIST and their associate firm in Singapore, Niru & Co and the Bar; and b. the allegations raised by the Bar in respect of the Respondents’ solicitors breach of the Legal Profession (Practice and Etiquette) Rules 1978 (“the Rules”).

The Respondents’ first complaint is that the Bar failed to disclose the existence of proceedings between the Bar and ZIST, being: a. a defamation suit commenced by 3 partners of ZIST against the Malaysian Bar; b. a claim for misfeasance of public office commenced by the 3 partners of ZIST against the Bar; and c. the Bar’s appeal to the KL High Court against the decision of the Disciplinary Board dismissing its complaint against the 3 partners of ZIST.

In my mind, the mere fact that the Bar is involved in proceedings against ZIST, cannot disqualify it from appearing as Amicus in furtherance of its statutory duties under s. 42(1) of the LPA. If anything, the complaint is that there was no disclosure of these proceedings.

I find allegations of non-disclosure does not prejudice the Respondents or ZIST as ZIST were fully aware of these proceedings and could have raised them before me, which they did.

However, these allegations were raised at a late stage and certainly not when the Bar was being considered as being appointed as Amicus nor when their remit was being settled. As pointed out by Mr. Thiru for the Bar, the first time the Respondents raised the objection against the Bar’s participation as Amicus was after the Bar filed its Outline on 11.12.2025 (Encl. 196).

I accept that the Respondents were not genuinely concerned with the alleged conflict of the Bar, but rather, with the substance of its submissions, which were damaging to ZIST.

I therefore dismiss the accusations of bias against the Bar by the Respondents and their request to disqualify the Bar as Amicus.

Mr. Thiru rightly, in the traditions of the Bar and as Amicus, did not ask for costs. The Bar has been of considerable assistance to me particularly in this area of the law, and I would like to thank them formally, which I hereby do. Dated the 27th day of March 2026 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Case References: • AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921 • Bar Council Malaysia v. Tun Dato' Seri Arifin bin Zakaria & Ors. (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773 • Barisan Performa Sdn Bhd v Hype Park City Sdn Bhd [2018] MLJU 10 • Blue Valley Plantation Bhd v Periasamy a/l Kuppannan & Ors [2011] 5 MLJ 521 • BOI v BOJ [2018] SGCA 61 • Deleum Primera Sdn Bhd v Mazrin bin Ramli & Ors [2021] 11 MLJ 100 • Elaine Gay Chow Song & Anor v Suruhanjaya Syarikat Malaysia & Ors [2024] MLJU 3207 • Ho Num Chon & Anor v Tech-Lab Manufacturing Sdn Bhd [2017] 9 MLJ 32 • Hodan-R Sdn Bhd v. Dato’ Mohd Hishamudin Hj Mohd Yunus [2007] MLJU 898 • Kelly v University College Dublin and others [2025] IESC 15 Counsel for the Petitioners: Solicitors: Ranjit Singh, Elizabeth Lau, Hazel Siau & Lynnette Wong Messrs. Elizabeth Lau (Kuala Lumpur) Counsel for the Respondents: Solicitors: Liew Teck Huat, Chetan Jethwani, Eugene Jayaraj Williams, Ong Kang Nyong, Sufiah Yusoff, Lim Zhi Yang & Divesh Ramani. Messrs. Zaid Ibrahim Suflan T H Liew & Partners (Kuala Lumpur) Malaysian Bar: Steven Thiru, Gregory Das & Leah Samuel. • Lawal v Northern Spirit Ltd [2004] 1 All ER 187 • Lim Tuck Sun v. Celcom (M) Bhd [2025] 4 MLJ 583 • Locabail (U.K.) Ltd v Bayfield Properties Ltd [2000] QB 451 • Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasamasama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 (FC) • Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd & Other Appeals [2001] 4 MLJ 187 • Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321 • Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd (in receivership) [2018] 11 MLJ 684 • National Assembly for Wales v Condron & Anor [2006] EWCA Civ 1573 • Norliah bt A P Kunhibava v Mohd Noor Amin bin Mohd Noor Khan & Ors [2025] MLJU 2136 (“Nuemera No. 1”) • Norliah bt A P Kunhibava v Mohd Noor Amin bin Mohd Noor Khan & Ors [2025] MLJU 3750 (“Nuemera No. 2”) • Pembinaan BLT Sdn Bhd v Debessa Development Sdn Bhd [2015] 9 MLJ 335 • Png Hock Leng v AXA Insurance Pte Ltd [2022] 1 SLR 1463 • Porter v. Magill [2002] 2 AC 357 • Probil Sonati Development Sdn Bhd v. Hodan-R Sdn Bhd [2009] 7 MLJ 726 • Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492 • Wong Kie Chie & Ors v Katheryn Ma Wai Fong & Anor and other appeals [2017] 3 MLJ 350 Legislation References: • Companies Act 2016 (“CA 2016”) • Legal Profession Act 1976 (“LPA”) Decision Date: 28th January 2026