Pax Investments Limited v Standard Chartered Bank Malaysia Berhad (WA-22NCC-231-05/2022)

Before the court is a case involving a complex interplay of banking law, contractual obligations, and third-party fraud. The Plaintiff, Pax Investments Limited (In Liquidation), a foreign company incorporated in Jersey, Channel Islands, has sued the Defendant, Standard Chartered Bank Malaysia Berhad, for breaches of contract and negligence following the loss of funds from its account through court proceedings initiated by third parties.

The case raises significant questions about the scope of a bank's duty of care to its customers, particularly in relation to its customer due diligence procedures and compliance S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 with court orders. It also examines the responsibilities of financial institutions when processing transactions that affect their customers' accounts and the standard of communication expected in such circumstances.

The dispute centres on the bank's handling of two key events: first, the extended freezing of the Plaintiff's Bank Account during a due diligence process that spanned several years, and second, the bank's subsequent release of substantial funds pursuant to a court order obtained by third parties. These events culminated in the loss of over RM6.5 million from the Plaintiff's Bank Account, leading to the present action.

The Plaintiff is a limited liability company incorporated in Jersey, Channel Islands, which has maintained a bank account under Account No. 312100897264 (“Bank Account”) with the Defendant since the 1970s. The Plaintiff has no presence in Malaysia and functions as an investment vehicle exclusively.

The relationship between the parties is governed by the Defendant's Terms and Conditions (“T&C”), which includes Account Terms, Standard Terms, Country Supplement (Malaysia), and various other supplements applicable to SME banking services. These terms were notified to the S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Plaintiff by way of a letter dated 16.12.2013, and both parties have acknowledged these T&C as binding.

On 19.8.2013, the Plaintiff was placed in voluntary liquidation. Beginning 2014, the Plaintiff initiated contact with the Defendant to close its Bank Account and retrieve its funds.

Around March 2014, the Plaintiff discovered that its Bank Account had been “frozen” or “deactivated” by the Defendant. The Defendant issued multiple letters between 31.12.2013 and 25.8.2014 requesting the Plaintiff to provide necessary information and documents as part of its customer due diligence process.

Between 2014 and 2016, communications ensued between the parties regarding the reactivation of the Bank Account: a) On 14.7.2014, the Plaintiff provided initial documentation requested by the Defendant. b) On 11.8.2014, the Plaintiff provided further documents, which the Defendant deemed incomplete. c) Between September 2014 and January 2015, the Plaintiff corresponded with the Defendant's representative, Angela Shamini. S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 d) Between April 2015 and May 2015, the Plaintiff corresponded with another of the Defendant's representatives, Michelle Rajasooria. e) Between December 2015 and July 2016, the Plaintiff corresponded with Mohd Hafiz Jamaludin of the Defendant. f) On 12.7.2016, Hafiz informed the Plaintiff: “We will assist to activate the account & notify once account active.”

On 23.12.2016, the Defendant received a letter from Messrs Zainal & Badrol (“Messrs ZB”), enclosing a copy of a Garnishee Order to Show Cause dated 30.11.2016, issued in proceedings between ABK Power Sdn Bhd (“ABK”) and the Plaintiff. ABK had obtained a Judgment in Default dated 20.9.2016 against the Plaintiff.

By a letter dated 27.12.2016, the Defendant notified the Plaintiff that it was “obliged to freeze” the amount in the Plaintiff's Bank Account upon receipt of the Garnishee Order to Show Cause.

On the same date, the Defendant issued a letter to Messrs ZB confirming receipt of the Garnishee Order to Show Cause and requesting Messrs ZB to mention on the Defendant's behalf at the next hearing. S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

Subsequently, ABK obtained a sealed Garnishee Order Absolute dated 9.1.2017, which was served on the Defendant on 13.1.2017.

On 18.1.2017, the Defendant issued a cashier's order for RM6,588,605.74 to Messrs ZB pursuant to the Garnishee Order Absolute.

By a letter dated 19.1.2017, the Defendant informed the Plaintiff that it had remitted the sum of RM6,588,605.74 to Messrs ZB.

It later emerged that Zainal Fikri bin Haji Ahmad (“ZFK”), the advocate and solicitor representing ABK, had been suspended from practice with effect from 3.2.2017 (21 days from the Disciplinary Board's order dated 13.1.2017), and Messrs ZB ceased operation from the same date.

The Plaintiff only engaged lawyers in March 2018 to investigate the matter, subsequently discovering that it had been the target of a fraud by ABK and Messrs ZB.

The Plaintiff took steps to set aside the Judgment in Default and Garnishee Orders, which it successfully accomplished between 2019 and 2020. The Plaintiff then filed this suit against the Defendant. S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

The Plaintiff pleads that the Defendant breached its contractual duties as set out in: a) Clause 3.1(a) of the Standard Terms, which requires the Defendant to “use reasonable care and skill” in providing its services; b) Clause 3.1(c) of the Standard Terms, which requires the Defendant to “use reasonable endeavours to re-establish any selected Channel under Our control which is interfered with or becomes unavailable”; c) Clause 10 of the Account Terms, concerning the closure or suspension of accounts.

The Plaintiff further pleads that there are implied terms in the contract requiring the Defendant: a) to respond to inquiries and requests promptly; b) to safeguard customer's deposited monies and account on demand; c) to return all deposited monies expeditiously when demanded; S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 d) to accord with a customer's instructions to release monies, and to restore any sums lost in its care; and e) to reactivate accounts promptly, and to specify all steps required for activation with clarity.

The Plaintiff also pleads that the Defendant breached its common law duty of care and/or duty to exercise professional skill and care in its services, as well as the Quincecare duty to guard against fraud.

The Plaintiff contends that these breaches directly caused the loss of RM6,588,605.74, as the funds would have been withdrawn had the Bank Account been properly reactivated prior to the garnishee proceedings.

The Defendant denies any breach of contractual or tortious duties. It contends that: a) The duties owed to the Plaintiff are limited to those expressly set out in the T&C, particularly the duty to use “reasonable care and skill” rather than “professional skill and care”; b) There is no basis for the implied terms asserted by the Plaintiff; S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 c) The Quincecare duty does not apply in the circumstances of this case; d) The Bank Account remained frozen due to the Plaintiff's own delays in providing complete and sufficient documentation for the customer due diligence process; e) The Defendant had no choice but to comply with the valid and enforceable Garnishee Order Absolute; f) There is no causal link between any alleged breach and the Plaintiff's loss, as the “effective cause” was the fraudulent conduct of third parties; g) The Plaintiff failed to mitigate its losses by delaying legal action to recover the funds; and h) The Plaintiff was contributorily negligent in failing to exercise reasonable care regarding its Bank Account.

Three witnesses appeared for the Plaintiff as follows: a) PW1 is David Jonathan McMahon, a director of RBC Wealth Management, RBC Trust Company (International) Limited (“RBC”), based in Jersey, S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Channel Islands. He is one of the administrators of the Plaintiff which had been in voluntary liquidation since 2013. His evidence centres on the background of the Plaintiff’s operations, its relationship with the Defendant, and the discovery of the misappropriation of the Plaintiff’s funds. He testified that the Plaintiff maintained the Bank Account with the Defendant in Malaysia to receive dividends and proceeds from its Malaysian holdings. In 2013, upon commencement of the liquidation process, RBC sought to repatriate funds from Malaysia but was informed by the Defendant that the Bank Account was inactive and could not be accessed without further verification. He stated that the Plaintiff provided the requested documentation, including company resolutions and proof of authority, but the Defendant continued to withhold access to the funds. He further testified that in January 2017, the Plaintiff was notified by the Defendant of a Garnishee Order to Show Cause obtained by ABK in respect of RM6,588,605.74, which was the first time the Plaintiff became aware of any such proceedings. He described subsequent efforts made by the Plaintiff through its officers, including PW2 Tina Cook, to obtain information and documents from the Defendant but without success. He also referred to correspondence showing that ABK had fraudulently obtained a default judgment against the Plaintiff and used it to garnish the funds held by the Defendant. His evidence is supported by S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 contemporaneous correspondence, internal records of RBC, and communications with the Defendant officers regarding the management and recovery of the Plaintiff’s funds in Malaysia. b) PW2 is Tina Cook, an employee of RBC and the administrator responsible for the day-to-day management of the Plaintiff. Her evidence concerns her direct correspondence with the Defendant regarding the Plaintiff’s Bank Account. She testified that the Plaintiff’s Bank Account had been repeatedly described by the Defendant as “inactive”, “frozen” or under a “hard hold”, preventing access despite full compliance with verification requests. She stated that on 9.1.2017, the Plaintiff received the Defendant’s letter dated 27.12.2016 notifying of a Garnishee Order to Show Cause involving RM6,588,605.74, which was the first time the Plaintiff became aware of any such proceedings. She immediately contacted the Defendant for clarification but received inconsistent responses, including statements that the Plaintiff’s funds had been removed and that the Plaintiff was treated as a “third party”. She further testified that subsequent inquiries revealed that a company unknown to the Plaintiff, ABK, had fraudulently obtained a judgment and used it to garnish the Plaintiff’s funds from the Bank Account. S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 c) PW3 is Nurul Hafika Bt Noor Hamid, an Executive Officer in the Membership Department of the Malaysian Bar, where she has served for 10 years. She confirmed being in charge of the Bar Council letters dated 11.04.2018, 23.04.2018, and 4.07.2022 concerning Messrs ZB and ZFK. Her evidence was that ZFK was last issued a practising certificate in 2017, was suspended from practice effective 3.2.2017 pursuant to a Disciplinary Board order dated 13.1.2017, and was later struck off the Roll effective 21 days from 19.3.2021. She testified that the firm’s last registered address was at Lot 2-2, Level 2, Tower B, The Troika, 19 Persiaran KLCC, Kuala Lumpur, and that the subsequent address at Menara Darussalam reflected in 2021–2022 correspondence was not valid as the firm was inactive.

Four witnesses appeared for the Defendant as follows: a) DW1 is Aza Izati binti Mokhtar, a Senior Global Operations Officer with Standard Chartered Global Business Services Sdn Bhd, which provides outsourced operational support the Defendant. Her evidence concerns the garnishee proceedings involving the Plaintiff’s Bank Account with the Defendant. She testified that on or about 23.12.2016, she received from the Defendant’s legal department a letter from Messrs ZB, solicitors for ABK, enclosing S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 a sealed Garnishee Order to Show Cause dated 30.11.2016 in Execution Suit No. WA-37G-72- 11/2016. Acting on that order, the Defendant froze RM6,588,605.74 in the Plaintiff’s Bank Account and informed Messrs ZB of the freeze by letter dated 27.12.2016. The same day, the Defendant issued a letter to the Plaintiff notifying it of the order via courier. She stated that the Defendant then requested Messrs ZB to mention on its behalf at the garnishee hearing on 9.1.2017. She further testified that following the hearing, the High Court issued a Garnishee Order Absolute directing the Defendant to pay RM6,588,605.74 to Messrs ZB. Acting on instructions from the Defendant’s legal department, she caused the Defendant to issue cheque no. 832996 dated 18.1.2017 for that amount, and on 19,1,2017, the Defendant sent a letter to the Plaintiff confirming payment. She maintained that the Defendant had a legal obligation to comply with the court order and denied that the Defendant was negligent, stating that at all material times, Messrs ZB and their partner, ZFK, were validly registered with the Malaysian Bar, and the firm only ceased operations in February 2017. b) DW2 is Yong Yoke Chan, the Head of Client Due Diligence (CDD), Operations, with the Defendant. Her evidence relates to the Defendant’s due diligence and account maintenance procedures S/N Ot2gjGiO7ESo9ejdkBUgmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 concerning the Plaintiff’s Bank Account, with the Defendant. She testified that she joined the Defendant in August 2014 and currently oversees client due diligence processes. She stated that pursuant to a CDD “trigger review” in September 2013 and in compliance with Bank Negara Malaysia’s guidelines, the Defendant issued several letters to the Plaintiff between 31.12.2013 and 8.8.2014 requesting updated company documents and information. As the Plaintiff failed to respond, the Bank Account was restricted on 12.3.2014. She referred to letters dated 31.12.2013, 25.3.2014,

25.4.2014, 23.5.2014, 25.7.2014, and 8.8.2014 as part of the Defendant’s repeated reminders. She explained that while different expressions such as “restricted”, “suspended”, or “hard hold” were used, they all meant the same - that the account holder could not conduct credit or debit transactions. She stated that on 13.7.2014, Ms Tina Cook from RBC sent certain documents to the Defendant in an attempt to uplift the restriction, but these were incomplete. A further letter dated 25.8.2014 was then sent to the Plaintiff reiterating that the restriction would remain until full compliance. She confirmed that the restriction, imposed on 12.3.2014, remained in effect thereafter. S/N Ot2gjGiO7ESo9ejdkBUgmQ c) DW3 is Subatra a/p Ramasamy, a Legal Counsel with the Defendant. Her evidence concerns the legal department’s handling of the Garnishee Order to Show Cause in Execution Suit No. WA-37G-72- 11/2016 involving the Plaintiff’s Bank Account. She testified that the Defendant’s legal department received a letter dated 23.12.2016 from Messrs ZB, solicitors for ABK, enclosing a sealed Garnishee Order to Show Cause dated 30.11.2016. Acting on that order, the Defendant instructed its operations unit to freeze RM6,588,605.74 in the Plaintiff’s Bank Account and subsequently sent a letter to the Plaintiff dated 27.12.2016 notifying it of the order. She stated that the Defendant did not object to the order and appointed Messrs ZB to mention on its behalf at the hearing on 9.1.2017, which was a common practice to avoid incurring separate legal costs. She further testified that after the court granted a Garnishee Order Absolute on 9.1.2017, the Defendant received a letter dated 11.1.2017 from Messrs ZB enclosing the sealed order and requesting payment of RM6,588,605.74. Pursuant to this, the Defendant issued cheque no. 832996 dated 18.1.2017 to Messrs ZB in compliance with the court order and sent a letter to the Plaintiff dated 19.1.2017 confirming the payment. She stated that at all material times, the Defendant acted in compliance with valid court orders and confirmed that, based on the Bar Council’s records, ZFK and his firm, Messrs S/N Ot2gjGiO7ESo9ejdkBUgmQ ZB, were duly registered and practising solicitors until February 2017. d) DW4 is Gary Pung Mun Hong, the Team Manager of Business Banking with the Defendant. He was previously the Relationship Manager from August 2015 to July 2018 before being promoted in August

His evidence relates to his communications with representatives of the Plaintiff, particularly in early 2017 regarding the reactivation of the Plaintiff’s Bank Account (Account No. 312100897264) and that of a related company, Drewson Investment Limited. He testified that he liaised with Tina Cook from RBC, who represented that RBC was the appointed liquidator for both companies. He referred to an email dated 20.1.2017 from RBC requesting details of the two accounts, and subsequent emails between 8.2.2017 and 15.2.2017 in which he informed RBC that both accounts were dormant and lacked updated signatory information. He stated that he informed RBC on 10.2.2017 that the funds in the Plaintiff’s Bank Account had been removed and that a garnishee order had been issued in respect of those funds. In his email dated 13.2.2017, he explained that the Plaintiff should have been aware of the garnishee proceedings as the relevant lawyer would have served the order on them. He maintained that the Defendant required RBC to complete the company review process and provide proper S/N Ot2gjGiO7ESo9ejdkBUgmQ authorisation before any further information could be disclosed. He also outlined the relevant contractual terms governing the relationship between the Plaintiff and the Defendant, including clauses excluding the Defendant’s liability except in cases of fraud, gross negligence, or wilful misconduct, and provisions entitling the Defendant to suspend or close accounts in compliance with court orders and regulatory obligations. PARTIES' SUBMISSIONS The Plaintiff's Submissions [25] The Plaintiff submits that the Defendant breached its contractual and tortious duties in two key events. [26] First, with respect to the Bank Account reactivation, the Plaintiff argues that the Defendant failed to handle the due diligence process with reasonable care and skill. The Plaintiff contends that it promptly responded to all requests for information, but the Defendant delayed responses, shuffled the Plaintiff between different relationship managers, repeatedly requested the same documents, and failed to keep track of documentation provided. The Plaintiff points to the Defendant's witness DW4's admission that the usual timeframe to reactivate an account once all information is provided is “three to four days,” yet the Plaintiff's Bank Account remained frozen for years. S/N Ot2gjGiO7ESo9ejdkBUgmQ [27] Second, regarding the garnishee proceedings, the Plaintiff argues that the Defendant failed to notify it properly of the proceedings, provided incorrect and confusing information in its communications, and erred in releasing funds from a “frozen” account which did not constitute a “debt due or accruing due” under Order 49 of the Rules of Court 2012 (“ROC 2012”). The Plaintiff contends that the Defendant should have disputed liability under Order 49, Rule 5, especially given the questionable circumstances surrounding the garnishee proceedings. [28] On causation, the Plaintiff submits that the “but for” test is satisfied, as had the Defendant reactivated the Bank Account when it should have, the funds would have been withdrawn prior to the garnishee proceedings. The Plaintiff argues that while there was no “urgency” to withdraw, there was always a plan to withdraw the funds given that the Plaintiff was in liquidation. The Defendant's Submissions [29] The Defendant submits that the scope of its duties is limited to the four corners of the contract, which only requires it to use “reasonable care and skill” rather than “professional skill and care.” It contends that there are no implied terms as alleged by the Plaintiff, and the Quincecare duty does not apply as it only pertains to payments made pursuant to fraudulent customer instructions, not court orders. S/N Ot2gjGiO7ESo9ejdkBUgmQ [30] Regarding the Bank Account reactivation, the Defendant argues that the delays were caused by the Plaintiff's failure to provide complete and sufficient documentation in a timely manner. The Defendant points to multiple admissions by the Plaintiff's witnesses that there were delays on the Plaintiff's part and that documents provided were incomplete or incorrect. [31] Concerning the garnishee proceedings, the Defendant submits that it was obligated to comply with the valid court order, which took precedence over any contractual duties to the customer. It argues that it provided adequate notification to the Plaintiff and that the funds in the frozen Bank Account still constituted a “debt due or accruing due” under Order 49, Rule 1(3) ROC 2012, which explicitly includes debts “notwithstanding any restriction as to the mode of withdrawal.” [32] On causation, the Defendant contends that the “effective cause” of the loss was the fraudulent conduct of third parties, not any breach by the Defendant. It also points to the Plaintiff's admission that there was “no urgency” to withdraw the funds, suggesting that even if the Bank Account had been reactivated, the funds would still have been in the account at the time of the garnishee proceedings. S/N Ot2gjGiO7ESo9ejdkBUgmQ ISSUES [33] A Statement of Issues to be Tried was filed stating as follows. [34] There are eight Issues to be Tried as agreed by the parties: Issue 1: Whether the Defendant committed a breach of contract regarding the release of RM6,588,605.74 from the Plaintiff’s Bank Account to ABK, specifically: a) Clause 3.1(a) (Standard Terms) - duty to exercise reasonable care and skill b) Clause 10 (Account Terms) - continuing to freeze the Bank Account c) Clause 3.1(c) (Standard Terms) Issue 2: Whether the Defendant failed to exercise reasonable care and skill in relation to the Plaintiff’s Bank Account, particularly: a) Failing to act diligently to unfreeze/reactivate the Bank Account or return funds b) Delaying notification of garnishee proceedings S/N Ot2gjGiO7ESo9ejdkBUgmQ c) Failing to reply/provide updates about the Bank Account status Issue 3: Whether the Defendant's legal obligations and duties are limited to those expressly enumerated in the Defendant’s T&C Issue 4: In relation to the Plaintiff’s Bank Account: a) Was there an implied contract and did the Defendant breach it? b) Does the Defendant owe common law duty of care/duty to exercise professional skill and care, and was it breached? c) Does the Defendant owe a Quincecare duty and was it breached? Issue 5: Whether the Defendant acted negligently in relation to garnishee proceedings Issue 6: Whether the Defendant was negligent in oversight and handling of garnishment proceedings, enabling fraud to occur and/or disabling the Plaintiff from counteracting the fraud S/N Ot2gjGiO7ESo9ejdkBUgmQ Issue 7: If breach/negligence is found, whether the Plaintiff is entitled to reliefs in paragraphs 76-80 of Statement of Claim: a) Whether the Plaintiff suffered losses claimed in paragraphs 77-78 b) Whether losses are excluded by Clause 10.1 of Standard Terms Issue 8: Whether the Defendant is contributorily negligent, and if so, whether damages should be reduced based on the Plaintiff’s share of responsibility [35] The Plaintiff put forward the following Issue to be Tried which was not agreed to by the Defendant: Issue 9: Whether the existence of the Garnishee Order to Show Cause (30.11.2016) and Garnishee Order Absolute (9.1.2017) is a defence to any breach of contract and/or negligence [36] The Defendant put forward the following Issues to be Tried which were not agreed to by the Plaintiff: Issue 10: If issues 2(a) to 2(c) are answered affirmatively, whether such failure/delay constitutes failure to exercise reasonable care and skill S/N Ot2gjGiO7ESo9ejdkBUgmQ Issue 11: Whether the Defendant was under legal obligation to freeze RM6,588,605.74 in accordance with the Garnishee Order to Show Cause (30.11.2016) Issue 12: Whether the Defendant was under legal obligation to pay RM6,588,605.74 to Messrs ZB in accordance with the Garnishee Order Absolute (9.1.2017) Issue 13: If issues 11 and 12 are answered affirmatively, whether the Defendant's compliance with the Garnishee Orders constitutes breach of contract and/or negligence Issue 14: Regarding alleged losses in paragraphs 77-78 of Statement of Claim: a) Whether there is a causal link between the breach/failure and the losses b) Whether the losses were foreseeable/within parties' contemplation c) Whether the losses are too remote [37] To structure the court’s analysis, based on the defences relied on by the Defendant and the submissions of parties, I frame the following main issues for deliberation which this court considers pivotal to the resolution of this case: S/N Ot2gjGiO7ESo9ejdkBUgmQ a) Whether the Defendant, in providing banking services to the Plaintiff, owed contractual, implied, and extended Quincecare-type duties - including duties to exercise reasonable care and skill, to respond and reactivate accounts promptly, and to take reasonable steps to avert fraud - in the handling of the Plaintiff’s Bank Account and related garnishee proceedings. b) Whether the Defendant exercised reasonable care and skill in conducting the due diligence and Bank Account reactivation process for the Plaintiff’s Bank Account, including in its communication, record-keeping, and timeliness of action following the Plaintiff’s provision of required information. c) Whether the Defendant exercised reasonable care and skill in handling the garnishee proceedings affecting the Plaintiff’s frozen Bank Account, including timely and accurate notification, clear and correct communication, proper consideration of disputing liability under Order 49 rule 5, and refraining from releasing sums that were not a debt due. d) Whether the Defendant’s breaches were the but-for and proximate cause of the Plaintiff’s loss - foreseeably enabling the fraudulent garnishment - S/N Ot2gjGiO7ESo9ejdkBUgmQ and whether hat causal chain was unbroken by third-party fraud or the Plaintiff’s conduct. e) Whether the Plaintiff acted reasonably to mitigate its losses and was free from contributory negligence in the aftermath of the Defendant’s breaches, having regard to the timing of its responses, the steps taken to recover the funds, and the surrounding circumstances including cross-jurisdictional complexities and the COVID-19 delays. f) Whether, in light of the Defendant’s breaches and the effect (if any) of Clause 10.1 of the Standard Terms, the Plaintiff is entitled to damages comprising the principal sum removed, recoverable special damages (including legal and travel expenses), and interest from 15.2.2017, and how those heads should be quantified. [38] I shall return to address the issues as stated in the Statement of Issues to be Tried upon the completion of my analysis. ANALYSIS AND FINDINGS OF THE COURT Scope of the Defendant's duties to the Plaintiff [39] I now turn to consider the scope of duties owed by the Defendant to the Plaintiff. The determination of this issue is S/N Ot2gjGiO7ESo9ejdkBUgmQ central to the resolution of the present dispute, as it establishes the framework within which the alleged breaches must be evaluated. [40] The Plaintiff submits that the Defendant's duties arise from: a) express contractual terms in the Defendant’s T&C, particularly Clauses 3.1(a) and 3.1(c) of the Standard Terms, and Clause 10.1 of the Account Terms; b) implied terms necessary for business efficacy; and c) an extension of the Quincecare duty to avert fraud in circumstances beyond the conventional parameters of that duty. [41] Conversely, the Defendant contends that its duties are strictly limited to those expressly set out in the T&C, asserting that there are no implied terms, no advisory duties, and no Quincecare duties applicable in this case. [42] It is undisputed that the contractual relationship between the parties is governed by the Defendant's T&C. These terms were communicated to the Plaintiff by way of a letter dated 16.12.2013, which annexed a copy of the relevant terms for the Plaintiff's reference. Despite some confusion during cross-examination, the Plaintiff's witness, Mr. David Jonathan McMahon (PW1), clarified during re-examination that the binding terms were indeed those contained in S/N Ot2gjGiO7ESo9ejdkBUgmQ Bundle A, which the Plaintiff received circa 2014. I note that this position is consistent with the evidence and has not been seriously contested by either party. [43] The key express term pertaining to the standard of care owed by the Defendant is Clause 3.1(a) of the Standard Terms, which provides that in providing services, the Defendant will “use reasonable care and skill”. It reads: “3. Our Responsibilities

3.1 In providing the Services, We will:

use reasonable care and skill; ...” [44] While the Plaintiff has characterised this as a duty to exercise “professional skill and care” in its pleadings, I find that this language does not necessarily impose a higher standard than that expressly stated in the contract. The term “professional”, in context, merely acknowledges the specialised nature of banking services provided by the Defendant as a financial institution, rather than elevating the standard of care beyond “reasonable care and skill”. This interpretation aligns with the testimony of PW1 (David Jonathan McMahon), who explained at paragraph 125 of his witness statement that he expected a “reasonable, and in this case, high level of due diligence, care, skill and professionalism from the Defendant” as an international bank. This expectation is entirely consistent with the “reasonable care and skill” standard explicitly stated in the contract. S/N Ot2gjGiO7ESo9ejdkBUgmQ [45] A significant point of contention concerns whether implied terms form part of the contractual relationship. The Plaintiff has pleaded various implied terms in paragraph 59 of its Statement of Claim, including duties: a) to respond to inquiries and requests promptly; b) to safeguard customer's deposited monies and account on demand; c) to return all deposited monies expeditiously when demanded; d) to accord with a customer's instructions to release monies; and e) to reactivate accounts promptly and specify steps required for activation with clarity. [46] The Defendant contends that these alleged implied terms have no place in the contract, asserting that only the express terms govern the relationship. [47] I must first address the Defendant's preliminary objection that some of the alleged implied duties pleaded by the Plaintiff in paragraphs 59(b), (c), and (d) of the Statement of Claim are predicated on demands (for safeguarding deposited monies, returning deposited monies, or releasing monies) which were never made by the Plaintiff. I reject this S/N Ot2gjGiO7ESo9ejdkBUgmQ argument. The evidence shows that the Plaintiff was actively seeking to reactivate its Bank Account from 2014 onwards, with the express purpose of regaining control over its funds in the Bank Account. This is clear from the testimony of PW2 (Tina Jill Cook) under cross-examination, where she stated that “if we'd have unfrozen the account, we would have withdrawn the funds because the Plaintiff was in liquidation.” This statement was further clarified in re-examination, where PW2 explained that while there may not have been urgency, “there was always have been a requirement to remove the fund for two reasons. One, because the balance has gotten to quite a large level, and secondary, because we're in voluntary winding up and we would have needed to remove the funds and close the account.” This evidence establishes that the Plaintiff's consistent efforts to reactivate the Bank Account constituted an ongoing demand for access to its funds. The distinction between “urgency” and “plan” drawn by PW2 does not negate the substantive demand for access to the funds. [48] The Defendant further argues that these implied terms are not supported by a “well-developed body of case law” and are inconsistent with the express terms of the contract. It relies on the UK Supreme Court decision in Philipp v Barclays Bank UK plc [2023] 3 WLR 284, where Lord Leggatt JSC observed that in identifying the legal rights and duties applicable to the parties, the court should “consider any relevant terms expressly agreed between the bank and the customer.” The Defendant further submits that implied S/N Ot2gjGiO7ESo9ejdkBUgmQ terms must not contradict express terms, citing Heng Cheng Swee v Bangkok Bank Ltd [1976] 1 MLJ 267 (FC) and Ling Boon Huat v Ding Toh Biew [2024] MLJU 970 (CA). [49] I accept that implied terms cannot contradict express terms, as established in the cases cited by the Defendant. However, having carefully considered these arguments, I find that the implied terms pleaded by the Plaintiff are not inconsistent with the express terms of the contract but are necessary implications flowing from them. Significantly, the Defendant's own witness, Mr. Gary Pung Mun Hong (DW4), who has extensive experience in the banking sector spanning “more than” 18 years, agreed under cross-examination that these duties were reasonable expectations in a banker-customer relationship. When specifically asked about duties to respond to inquiries promptly, provide accurate information, safeguard customer's monies, return monies expeditiously when requested, specify clearly what is required to activate frozen accounts, and promptly reactivate accounts once requirements are met, DW4 unequivocally agreed with each proposition (Notes of Evidence, page 321, line 26 onwards). This testimony from the Defendant's own witness fundamentally undermines the Defendant's contention that such duties do not exist or are unreasonable in the banking context. [50] The Defendant submits that the duty to “reactivate accounts promptly” is inconsistent with Clause 10.1 of the Account Terms, which permits the Defendant to “close or suspend S/N Ot2gjGiO7ESo9ejdkBUgmQ Your Account at any time” with notification to the customer. I reject this argument. It reads: “10.1 Closure of Accounts a) We can close or suspend Your Account at any time and will Notify You as soon as We can. b) We will close Your Account after We have received Your notice in writing and We will pay You any credit balance in Your Account after deducting any amounts You owe Us.” [51] While Clause 10.1 of the Standard Terms gives the Defendant the right to suspend an account, it would be commercially absurd to interpret this as granting the bank an unfettered right to maintain such suspension indefinitely without specifying the steps required for reactivation. Such an interpretation would render the banking relationship potentially meaningless, as a customer could be perpetually denied access to their funds without recourse. The duty to reactivate promptly once all requirements have been met is not inconsistent with the right to suspend in the first place; rather, it is a necessary corollary to ensure that the suspension provision is not abused. [52] Although Philipp v Barclays is cited by the Defendant, its relevance must be considered in light of the broader principles outlined in that judgment. In this case, Mrs Fiona Philipp and her husband fell victim to fraud in 2018 when they were deceived by criminals into instructing Barclays Bank to transfer £700,000 in two payments from their account to bank accounts in the United Arab Emirates. The S/N Ot2gjGiO7ESo9ejdkBUgmQ Supreme Court had to consider whether the Quincecare duty applied where payment instructions were issued directly by the customer (rather than by an agent), and whether banks owed duties to protect customers who were victims of authorised push payment fraud. It was held that where a customer had unequivocally authorised and instructed the bank to make a payment, the bank's duty was to execute the instruction promptly, and the bank did not owe a duty to refuse execution even where the customer had been induced by fraud, as the customer's intention remained genuine and the instruction valid. While Lord Leggatt JSC did emphasise the importance of considering the express terms agreed between the parties, he did not exclude the possibility of implied terms where necessary. In fact, at paragraph 26 of the judgment, Lord Leggatt acknowledges that contracts between banks and customers include “certain basic terms and duties which have come to be recognised by the common law (and sometimes statute) as ordinary incidents of contracts of this type” and that these “implied terms and duties apply automatically by default unless modified or excluded by express agreement.” The implied terms sought by the Plaintiff fall squarely within this category of “ordinary incidents” of banking contracts. [53] The Defendant asserts that the Plaintiff's request for implied terms effectively asks the court to “improve the instrument” by imposing additional duties not contemplated by the parties. I disagree. The implied terms sought by the Plaintiff S/N Ot2gjGiO7ESo9ejdkBUgmQ are not extraneous additions but necessary implications that give business efficacy to the contract. [54] In SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, the State Government of Selangor terminated a quit rent collection agreement without providing reasons. The contract contained a termination clause and a review clause providing for determination of unsatisfactory performance. The Federal Court had to determine whether a termination notice which is vague, unspecific and uncertain is defective and bad in law. The court held that upon proper construction of the contract, the review clause must be invoked and particularised reasons provided before termination could be validly exercised, as this was necessary to provide the opportunity to meaningfully remedy any unsatisfactory performance. [55] In explaining the principles of implied terms, the Federal Court cited Professor Richard Hooley's summary of Lord Hoffmann's principles in Attorney General of Belize and others v Belize Telecom Ltd and another [2009] UKPC 10; [2009] 1 WLR 1988, PC, stating that “a court has no power to improve the instrument it is asked to construe whether to make it fairer or more reasonable. It is concerned only to discover what the instrument means.” However, “in some cases, however, the 'reasonable addressee' of the instrument will conclude that the only meaning which the instrument can have, consistent with its other terms and the S/N Ot2gjGiO7ESo9ejdkBUgmQ relevant background is that something is to happen in response to the particular event that has not been expressly provided for in the instrument's terms.” [56] The duties to respond to inquiries promptly and to specify clearly the requirements for account reactivation fall into this category, as they are essential for the efficient operation of the banking relationship. [57] I find that the cases cited by the Defendant on implied terms are distinguishable. Attorney General of Belize v Belize Telecom and SPM Membrane Switch articulate general principles on the implication of terms, but do not preclude the specific implications sought in this case. Similarly, CIMB Islamic Bank Bhd v Khairuddin bin Abu Hassan [2021] MLJU 115 (CA) concerned notification requirements in the context of a property auction following default on a financing agreement, which involves significantly different considerations from the banking relationship at issue here. [58] The Defendant further relies on Kian Lup Construction v Hongkong Bank Malaysia Bhd [2002] 7 MLJ 283 (HC) to argue that where a bank provides traditional banking facilities such as operating a current account, the relationship is “merely contractual” and not fiduciary. In that case, the plaintiff construction company had opened a current account with the defendant bank. The bank subsequently received a report from Bank Negara Malaysia's database identifying cheque irregularities and S/N Ot2gjGiO7ESo9ejdkBUgmQ issued a letter to the plaintiff in accordance with Bank Negara Malaysia's guidelines. The plaintiff sued the bank for defamation and breach of fiduciary duty, claiming damages of not less than RM3,000,000. [59] The issue before the court was whether a fiduciary relationship existed between a banker and a current account customer. The High Court held that banking institutions provide three categories of services: (1) traditional banking facilities where customers deposit money with the bank (operating current or savings accounts); (2) financial and advisory services where the bank acts as advisor; and (3) financial facilities such as loans or overdrafts. The court held that in the first category (traditional banking facilities) and the third category (loan facilities), the relationship between the bank and customer is one of debtor and creditor, and is “merely contractual, i.e. - only as debtor and creditor, not fiduciary.” Only in the second category involving financial and advisory services does a fiduciary relationship arise. The plaintiff's claim for breach of fiduciary duty was accordingly dismissed. [60] While I accept that the basic relationship in the present case is contractual, this does not preclude the implication of terms necessary for the effective operation of that contract. The terms sought to be implied in Kian Lup Construction are contractual in nature and do not transform the relationship into a fiduciary one. S/N Ot2gjGiO7ESo9ejdkBUgmQ [61] The Defendant also contends that the Plaintiff is a “sophisticated customer” with knowledge and experience regarding banking services, having maintained the Bank Account since the 1970s, and being represented by RBC Corporate Services (CI) Limited, which provides corporate services to sophisticated commercial companies. The Defendant argues, based on OCBC Securities Pte Ltd v Yeo Siew Huan [1998] 2 SLR 965 (Singapore HC), that this sophistication justifies a lower standard of care. [62] In OCBC Securities, the plaintiff stockbroker sued the defendant (Yeo), a property agent and company director, for failing to pay for shares purchased on her behalf. Yeo counterclaimed that the plaintiff had given her negligent investment advice. The evidence showed that Yeo engaged in substantial speculative trading, with buy orders in January 1994 alone totaling $9.4 million and RM3.2 million, and continued active trading with other brokers despite significant losses. The issue was whether the stockbroker was liable for allegedly negligent advice given Yeo's level of sophistication. Lee Seiu Kin JC held that Yeo was “at least a fairly-sophisticated investor” who was “willing to take considerable risks on the stock market,” and therefore she “could not have relied on any advice as she had claimed...to an extent that would render them liable to her if these were negligent.” S/N Ot2gjGiO7ESo9ejdkBUgmQ [63] I reject the Defendant's reliance on OCBC Securities for two reasons. First, the sophistication argument is relevant in investment contexts where customers make informed choices about speculative risk, not in basic banking services involving the safekeeping of deposits. Second, even if the Plaintiff could be considered “sophisticated,” this does not absolve the Defendant from its duty to exercise reasonable care and skill. The standard remains the same; it is the application of that standard to the specific circumstances that may vary. [64] With respect to the Quincecare duty, I acknowledge that the conventional application of this doctrine, as established in Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363 by Steyn J (as he then was), typically pertains to scenarios where banks receive payment instructions from customers' agents who are acting fraudulently. In that case, a bank lent £400,000 to Quincecare Ltd to purchase chemists shops. The company's chairman caused approximately £340,000 to be drawn down and instructed the bank to transfer the funds to solicitors, who then transferred it to the United States where the chairman absconded and misappropriated the money. The central issue was whether the bank, in executing the transfer, was “put on inquiry” that the chairman was acting for unauthorized purposes. Steyn J held that a banker must refrain from executing an order if the banker has reasonable grounds for believing the order is an attempt to misappropriate funds, applying the standard of an ordinary prudent banker. The present case involves a S/N Ot2gjGiO7ESo9ejdkBUgmQ different scenario—funds released pursuant to a court order rather than a customer's instruction. [65] The Defendant strongly contends that the Quincecare duty does not apply in the present case, arguing that its “defining characteristic,” as identified by Lord Leggatt JSC in Philipp v Barclays, is that it relates to cases where “a payment instruction was given to the bank by an agent who was an authorised signatory of the customer's account but was acting in fraud of the customer” (at para. 53). The Defendant further points out that the Plaintiff itself has conceded in its submissions that “Quincecare duties, as is, cannot guard against fraudulently-obtained court orders.” [66] I agree that the Quincecare duty, as originally formulated, does not directly apply to the present case. However, I do not accept the Defendant's argument that the underlying principles of the duty have no relevance whatsoever. The core principle articulated by Steyn J in Quincecare is that “the law should guard against the facilitation of fraud, and exact a reasonable standard of care in order to combat fraud and to protect bank customers and innocent third parties.” This principle is not limited to the specific factual matrix of the original Quincecare case, and there is no reason why it cannot inform the standard of care expected of banks in other contexts where fraud may occur. S/N Ot2gjGiO7ESo9ejdkBUgmQ [67] The Defendant relies on JP SPC 4 and another v Royal Bank of Scotland International Ltd [2023] AC 461 (Privy Council) and Philipp v Barclays to argue that the Quincecare duty is fundamentally linked to agency law principles inapplicable to the present case. While I accept that the duty as originally formulated may not directly apply, I find that the core principle of averting fraud remains relevant in determining the standard of care expected of the Defendant in these circumstances. It would be artificial and contrary to public policy to suggest that a bank has a duty to guard against fraud when executing a customer's payment instruction but has no similar duty when complying with a court order that may be tainted by fraud. [68] I also note that under Order 49, Rule 5 of the ROC 2012, a garnishee may dispute liability to pay the debt due or claimed to be due from him to the judgment debtor. Order 49, Rule 5 reads: “5. Dispute of liability by garnishee (O. 49 r. 5) Where on the further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the Court may summarily determine the question at issue or order in Form 100 that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in an action may be tried, without, if it orders trial before the Registrar, the need for any consent by the parties.” S/N Ot2gjGiO7ESo9ejdkBUgmQ [69] This avenue was available to the Defendant, particularly given the unusual circumstances surrounding the garnishee proceedings. The failure to utilise this provision may be relevant in assessing whether the Defendant exercised reasonable care in the handling of the garnishee proceedings. [70] The Defendant further relies on Clause 3.1(g) of the Standard Terms, which provides that the Defendant will “not be responsible for providing you independent legal, tax, accounting, security, and other advice in relation to any Account, Service, Transaction or Agreement with Us and We do not owe You any advisory, fiduciary or similar duties.” The Defendant argues, based on Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 (CA), that this express term contradicts any alleged advisory duties in relation to the garnishee proceedings. In that case, the plaintiff sued the defendant guarantor for negligence in the conduct of its loan facility, and the trial judge found the defendant liable based on its contractual obligations as guarantor. The Court of Appeal held that the trial judge had erred in imposing a duty of care in tort based on the defendant's contractual obligations, emphasizing that tortious duty should not be introduced into the arena of contract where the parties could have stipulated such a duty by agreement but had not done so. The court found there was no justification for imposing a duty of care based on the guarantee given to the bank, as S/N Ot2gjGiO7ESo9ejdkBUgmQ the defendant's role was merely as a collateral provider and not to make repayments on behalf of the plaintiff. [71] I accept that Clause 3.1(g) of the Standard Terms excludes any duty to provide legal advice to the Plaintiff. However, I note that the Plaintiff's case is not predicated on a failure to provide legal advice. As PW1 clearly stated in his witness statement (WSPW-1, page 53, Q&A 146): “Pax has never asked SCB for 'independent legal, tax, accounting, security, and other advice' in relation to the account.” Rather, the Plaintiff's case concerns the Defendant's failure to provide basic information about the status of its account and the garnishee proceedings, and its failure to exercise reasonable care in handling those proceedings. These duties are not excluded by Clause 3.1(g), which specifically relates to “independent legal, tax, accounting, security, and other advice” rather than basic information about banking services. The distinction is critical, and Clause 3.1(g) does not, in the court’s view, extend to exclude the duties relied upon by the Plaintiff in this context. [72] I find that the Defendant owed the following duties to the Plaintiff: a) A contractual duty to exercise reasonable care and skill in providing banking services (Clause 3.1(a) of Standard Terms); S/N Ot2gjGiO7ESo9ejdkBUgmQ b) A duty to use reasonable endeavours to re-establish channels under the Defendant's control (Clause 3.1(c) of Standard Terms); and c) Implied duties to respond to inquiries and requests promptly, and to reactivate accounts promptly with clear specifications of requirements. [73] Additionally, I find that the Defendant had a duty to take reasonable steps to avert fraud, drawing from the underlying principle of the Quincecare duty, albeit in different circumstances from those in the original case. However, I must emphasise that even if I am wrong in extending the Quincecare principle to these circumstances, the duties identified in paragraph 72 above are in themselves sufficient to establish the Defendant's liability in this case. The contractual duty to exercise reasonable care and skill, along with the implied duties identified, require the Defendant to handle garnishee proceedings with diligence and appropriate caution, particularly when dealing with a long-standing customer's substantial funds. These core duties are sufficient to require the Defendant to take appropriate care when processing court orders and to communicate effectively with its customers about matters affecting their accounts. S/N Ot2gjGiO7ESo9ejdkBUgmQ [74] I now proceed to consider whether the Defendant breached any of these duties in the two primary events at issue: the failure to reactivate the Plaintiff's Bank Account and the handling of the garnishee proceedings. Account reactivation and due diligence process [75] A central issue in this case concerns the Defendant's handling of the due diligence process that led to the freezing of the Plaintiff's Bank Account, and the subsequent attempts by the Plaintiff to have that account reactivated. The Plaintiff contends that it promptly provided all documents requested by the Defendant, but faced unreasonable delays and unclear communication from the Defendant. In contrast, the Defendant submits that any delay in reactivating the account was caused by the Plaintiff's own dilatory conduct in responding to requests and providing incomplete documentation, compounded by a lack of urgency on the Plaintiff's part to withdraw its funds. The Defendant further asserts that the account was frozen due to a legitimate “trigger review” based on suspicious transactions and a “periodic review” for high-risk customers. [76] After careful consideration of the evidence, I find the Plaintiff's account of events to be more credible and consistent with the contemporaneous documentary evidence. The chronology of communications between April 2014 and July 2016 demonstrates a pattern of delays and unresponsiveness on the part of the Defendant that falls S/N Ot2gjGiO7ESo9ejdkBUgmQ well below the standard of reasonable care and skill expected of a bank. I have given particular consideration to the Defendant's claim regarding a “trigger review,” but find this argument unpersuasive for reasons I shall explain. [77] At the outset, I must address the Defendant's claim that the account review was initiated due to a “trigger review” based on suspicious transactions. While DW2 did testify to this effect, there is a conspicuous absence of documentary evidence supporting this contention. When directly asked during cross-examination for evidence of the alleged “unusual transaction,” DW2 conceded that there was no such evidence before the court (Notes of Proceedings, page 255, lines 20-25). The Defendant's reliance on “tipping-off” concerns under anti-money laundering regulations to justify this absence is not compelling. As established in Rotta Research Laboratorium SPA & Anor v Ho Tack Sien & Ors [2015] 4 MLJ 222 (HC), the admissibility of documents in court proceedings is governed by the Evidence Act 1950, and confidentiality is not a bar to admissibility when relevant. If such a “trigger review” genuinely existed, the Defendant could and should have presented evidence to the court while maintaining appropriate confidentiality measures. [78] The evidence instead reveals that the due diligence process unfolded in four distinct phases, each involving different personnel of the Defendant. The first phase involved the Plaintiff's dealings with Angela Shamini, a representative of S/N Ot2gjGiO7ESo9ejdkBUgmQ the Defendant, between April 2014 and January 2015. While the Defendant claims the Plaintiff delayed for seven months before providing initial information, this characterisation is misleading. The evidence shows that the Plaintiff became aware that its Bank Account was frozen only in April 2014 when informed by a third-party company that its dividend payment had been rejected (testimony of PW2). The Plaintiff promptly responded by providing initial information on 14.7.2014, as evidenced by the email in Bundle B3, page 797. When Angela requested further information on 17.9.2014, the Plaintiff again complied by providing additional documents in November 2014. [79] Despite this compliance, Angela's response was limited to a statement on 19.11.2014 that “I am working on your company case now. We are still going through the documents…” (Bundle B4, page 827), and later in December 2014, “We will inform you once your account is unfrozen” (Bundle B4, page 823). These communications created a reasonable expectation that the information provided was sufficient and that the bank was proceeding with the reactivation process. Significantly, at no point during this phase did the Defendant clearly indicate that the information provided was insufficient or incomplete. [80] The Defendant's handling of the process became more problematic during the second phase involving Michelle Rajasooria between April 2015 and May 2015. When the Plaintiff provided all information requested by Michelle, as S/N Ot2gjGiO7ESo9ejdkBUgmQ evidenced by the email dated 23.4.2015 (Bundle B4, page 898), Michelle's response on 6.5.2015 was merely to state: “I'm no longer the person in charge. Now the matter is now being handled back by Angela. She will revert by end of today” (Bundle B4, page 903). This handover of responsibility without ensuring continuity of service falls below the standard expected of a bank. [81] The third phase, which involved a return to Angela between May 2015 and December 2015, is particularly telling. Despite the Plaintiff sending four email chasers between May and July 2015, Angela maintained complete silence, providing no response whatsoever. This forced the Plaintiff to reach out to another employee of the Defendant, Noreen Ismail, on 3.12.2015, stating: “Since that date, we have provided the information requested on numerous occasions but have not received any response despite numerous emails and telephone calls. Can you confirm if it's still frozen? Who is someone we can correspond with?” (Bundle B4, page 132). [82] The final phase with Hafiz between March 2016 and July 2016 is particularly significant. Unlike previous representatives, Hafiz communicated with clarity regarding what information was required. The Plaintiff provided the information requested, and most importantly, Hafiz's email of 12.7.2016 stated: “We will assist to activate the account and notify you once the account is active” (Bundle B4, page 957). This communication clearly indicated that all required S/N Ot2gjGiO7ESo9ejdkBUgmQ information had been provided and that the Defendant was proceeding with the reactivation of the Bank Account. [83] I find DW4's admission during cross-examination particularly compelling. When asked whether the words “assist to activate the account” indicated that the bank had enough information to proceed with activation, DW4 confirmed this was the case. Despite this clear indication that the Bank Account would be reactivated in July 2016, the Defendant failed to do so before the garnishee proceedings were initiated in late 2016. [84] The Defendant contends that documentation provided by the Plaintiff was repeatedly incomplete or insufficient, pointing to several alleged admissions by PW2 during cross-examination. I have examined these admissions in their proper context and find that they do not support the Defendant's position. While PW2 did acknowledge certain delays in submission, these must be understood against the backdrop of the Defendant's own inconsistent and unclear communication regarding what documents were required. The admitted delays were also of substantially shorter duration than the Defendant suggests, and were followed by prompt remedial action once clarity was provided. [85] Most significantly, the Defendant's claim that the delays were caused by incomplete or insufficient documentation is fundamentally undermined by its own failure to maintain proper records. DW4's email dated 10.2.2017 admitted: “I S/N Ot2gjGiO7ESo9ejdkBUgmQ have check with our review team in Malaysia. Unfortunately, there is no record of any document received at our end” (Bundle B8, page 1000). This admission is damning and demonstrates a serious failure in the Defendant's record-keeping systems and internal processes. It is difficult to reconcile the Defendant's insistence that documentation was incomplete with its admission that it has no record of what documentation was actually received. [86] The Defendant's own witnesses provided evidence that fundamentally contradicts its position. Yong Yoke Chan (DW2), the Head of Client Due Diligence, admitted during cross-examination that the Plaintiff had “responded and provided the information requested by Angela via emails” (Notes of Proceedings, page 272, line 9). DW2 further acknowledged that the normal response time should be “within seven working days” (Notes of Proceedings, page 273, line 22), and that the standard time to unfreeze an account after receiving requested information is “four to five days” (Notes of Proceedings, page 273, line 29). Most tellingly, when asked whether the delays by Angela were normal for the bank, DW2 admitted they were “not normal” (Notes of Proceedings, page 273, line 15). [87] Similarly, DW4 confirmed that the standard time period to reactivate an account once all information is provided is “three to four days” (Notes of Proceedings, page 349, line 36). The actual timeline in this case – stretching from April 2014 to at least July 2016 without reactivation – represents S/N Ot2gjGiO7ESo9ejdkBUgmQ an extraordinary departure from the bank's own standard practices. This disparity cannot be explained away by the Defendant's claims regarding incomplete documentation or customer delays. [88] The Defendant's reference to Clause 2.1(c) of the Standard Terms, which imposes an obligation on customers to provide “accurate and up-to-date information,” must be considered alongside the bank's corresponding obligation under Clause 3.1(a) of the Standard Terms to “use reasonable care and skill.” The evidence reveals that while the Plaintiff made good-faith efforts to comply with information requests, the Defendant repeatedly failed to meet its own obligations by not communicating clearly what information was required, losing track of documents already provided, and failing to respond to the Plaintiff's inquiries for extended periods. [89] The Defendant places significant weight on PW2's alleged admissions during cross-examination regarding incomplete documentation, particularly concerning the list of authorised signatories for Drewson Investment Ltd rather than the Plaintiff, and the absence of David McMahon's passport. However, PW2 provided clear and convincing clarifications during re-examination. Regarding the issue of passport copies for all 35 authorised signatories, PW2 explained that it was not standard practice to send passport copies for all signatories, but only for those with whom the bank would actually deal (Notes of Proceedings, page 167, line 30). On S/N Ot2gjGiO7ESo9ejdkBUgmQ the issue of the typographical error referring to “Drewson Investments Limited”, PW2 clarified that the document was clearly headed “Pax Investments”, referenced the Plaintiff’s Bank Account number, and was approved as the authorised signatory list for the Plaintiff despite the error (Notes of Proceedings, page 175, line 7). PW2 further explained that documentation clearly showing Cacique and Damor as directors was provided throughout the communications (Notes of Proceedings, page 176, line 1). [90] The Defendant argues that the Plaintiff showed no urgency to withdraw its funds, pointing to PW2's repeated acknowledgments during cross-examination that there was “no urgency.” This argument mischaracterises PW2's evidence and incorrectly suggests that a lack of urgency somehow justified the Defendant's delays in reactivation. While PW2 did acknowledge there was “no urgent need” to withdraw funds, she clearly stated during cross-examination that the Plaintiff would have withdrawn the funds because the Plaintiff was in liquidation (Notes of Proceedings, page 161, line 33). In re-examination, PW2 clarified the distinction between “urgency” and “plan”, stating: “There was no urgent need to withdraw the funds from the bank account. Pax didn't require the funds to be used for anything, so it's the word 'Urgent'. But there wasn't any urgent requirement but there was always have been a requirement to remove the fund for two reasons. One, because the balance has gotten to quite a large level, and secondary, because we're in voluntary winding up and we would have needed to remove S/N Ot2gjGiO7ESo9ejdkBUgmQ the funds and close the account” (Notes of Proceedings, page 183, lines 16-28). [91] The Defendant's focus on the Plaintiff's contemporaneous communication regarding dividends being deposited into the Bank Account does not undermine the Plaintiff's position. That the Plaintiff was concerned about dividends being rejected due to the frozen account does not negate its intention to ultimately withdraw the funds once the account was reactivated. As PW2 testified, the Plaintiff, being in liquidation, would have needed to “remove the funds and close the account” as part of the winding-up process. [92] The evidence also shows that prior to 2013, whenever the account balance exceeded a few million, the Plaintiff would withdraw the entire funds – a practice consistent with its status as a company in liquidation. This pattern indicates that had the account been reactivated promptly, the funds would likely have been withdrawn before the garnishee proceedings were initiated. [93] I find that the Defendant's handling of the due diligence process fell well below the standard of reasonable care and skill expected of a bank of the Defendant's stature and reputation. The Defendant's undue delays, failure to maintain records, inconsistent communication, and personnel changes without ensuring continuity of service collectively constituted a breach of its contractual duty to use reasonable care and skill under Clause 3.1(a) of the S/N Ot2gjGiO7ESo9ejdkBUgmQ Standard Terms, as well as its duty to “use reasonable endeavours to re-establish any selected Channel under Our control” under Clause 3.1(c). [94] Furthermore, I find that these breaches directly contributed to the loss suffered by the Plaintiff. Had the Defendant reactivated the account in accordance with its own standard timeline after Hafiz's email of 12.7.2016 confirming the sufficiency of information provided, the Plaintiff would have had ample opportunity to withdraw its funds before the garnishee proceedings were initiated in late 2016. The Defendant's breaches therefore played a direct and substantial role in creating the conditions that allowed the subsequent fraud to succeed. Garnishee proceedings and the defendant's handling [95] I now turn to the critical issue of the Defendant's handling of the garnishee proceedings. The Plaintiff has contended that the Defendant inadequately notified it of the garnishee proceedings, created confusion through inconsistent terminology, failed to dispute liability under the garnishee proceedings, and improperly released funds that did not constitute a “debt due” given the frozen status of the Bank Account. The Defendant, on the other hand, maintains that it had no duty to notify the Plaintiff of the garnishee proceedings, that it properly complied with a valid court order, and that frozen funds still constituted a “debt due” for the purposes of garnishee proceedings. S/N Ot2gjGiO7ESo9ejdkBUgmQ [96] On the matter of notification, the Plaintiff relies on the decision of the High Court in Top-A Plastics Sdn Bhd v Hong Kong Bank Malaysia Berhad [2006] 5 MLJ 620. In that case, the defendant bank received garnishee orders on 15.10.1999 but only notified the plaintiff on 22.10.1999, eight days later. During this period, the bank froze all the plaintiff's accounts for seven banking days, dishonoured 12 cheques marked “FROZEN ACCOUNT,” and wrongly froze a sum of RM98,888.06 that was paid into the Bank Account after service of the garnishee orders. The issue before the court was whether the bank's obligation as garnishee extended to freezing all funds in the accounts or was limited only to the amount sufficient to satisfy the judgment debt and costs. [97] The High Court held that: (1) the garnishee orders were “limited” in nature and should only attach amounts required to satisfy the judgment debt; (2) as a prudent banker, the defendant should have notified the plaintiff immediately upon service of the orders on 15.10.1999, not eight days later; (3) the bank should have either informed the plaintiff to open a new account or set aside the required amount in a suspense account while allowing continued operation of existing accounts; and (4) the bank wrongly froze funds paid in after service of the orders. This principle was affirmed on appeal in Bumiputra-Commerce Bank Bhd v Top-A Plastic Sdn Bhd [2008] 5 MLJ 34, where the Court of Appeal found the bank acted “in careless disregard or in haste by acting totally in reliance of the terms of the garnishee orders,” S/N Ot2gjGiO7ESo9ejdkBUgmQ although the quantum of damages was revised. The Defendant's own witness, DW4, confirmed this duty during cross-examination when he agreed that a garnishee order would “impact the customer's account” and constitute “an urgent communication that needs to be notified to the client.” (Notes of Proceedings, pages 329-330). [98] The evidence before me shows that the Defendant issued a letter dated 27.12.2016 (“1st Bank's Letter”) to notify the Plaintiff that it was “obliged to freeze” the amount in the Plaintiff's Bank Account upon receipt of the Garnishee Order to Show Cause (Bundle B3, page 746). While the Defendant argues that this notification was timely (being sent four days after receiving the Garnishee Order to Show Cause) and adequate, I find that it was deficient in several material respects. First, it contained an incorrect date of the garnishee order, referring to “30th December 2016” instead of “30th November 2016.” Second, it used terminology (“obliged to freeze”) that mirrored the language used throughout the due diligence process rather than the proper legal term “attachment,” which was correctly used in the Defendant's communication with the judgment creditor's solicitors. Third, the letter lacked any signatory or contact details for the Plaintiff to seek clarification, contrary to the Defendant's usual practice for urgent communications as admitted by DW2 (Notes of Proceedings, page 256, lines 19-32). S/N Ot2gjGiO7ESo9ejdkBUgmQ [99] Though the Defendant characterises the incorrect date as a mere typographical error that does not amount to negligence, I find that in the context of time-sensitive legal proceedings, such an error is significant. The Defendant correctly identified the date as 30.11.2016 in its communication with Messrs ZB (the 2nd Bank's Letter), demonstrating that it was aware of the correct date. The discrepancy between these two letters, issued on the same day, suggests a concerning lack of attention to detail in communications with the Plaintiff about a matter affecting millions of ringgit in its account. [100] The confusion created by this inadequate notification is evident from the Plaintiff's immediate response on 9.1.2017 (Bundle B8, page 991): “We have received... this letter is the first we have heard from you. Can you explain the meaning of this?” Despite this clear request for clarification, the Plaintiff received no response until 8.2.2017, well after the funds had been transferred out on 18.1.2017. The Defendant argues that pursuant to Clause 5.2(c) of the Standard Terms, service of the 1st Bank's Letter was deemed effective within 5 Banking Days after posting, thus by 3.1.2017. Even accepting this contractual deeming provision, the Defendant still failed to respond to the Plaintiff's urgent request for clarification for an entire month, which falls well below the standard of reasonable care and skill expected of a bank. S/N Ot2gjGiO7ESo9ejdkBUgmQ [101] A more fundamental issue is whether the funds in the frozen Bank Account constituted a “debt due or accruing due” for the purposes of garnishee proceedings under Order 49 of the ROC 2012. The Defendant argues that Order 49, Rule 1(3) specifically provides that attachable debts include bank accounts notwithstanding any restriction as to the mode of withdrawal. It reads: “(3) In this Order, “any debt due or accruing due” includes a current or deposit account with a bank or other financial institution, whether or not the deposit has matured and notw ithstanding any restriction as to the mode of withdrawal.” [102] The Defendant relies on the Singapore case of Sincere Watch Limited v Bakery Mart Pte Ltd (Ng Yew Hong, Third Party) [2003] SGHC 85 to support this position, which explained that this rule was intended to ensure that “as regards both a current and a deposit account, the same rule would apply notwithstanding that the deposit has not yet matured and notwithstanding any restriction as to the mode of withdrawal.” [103] However, I prefer the Plaintiff's interpretation of the law on this point. In Malaysian International Trading Corp Sdn Bhd v RHB Bank Bhd [2016] 2 MLJ 457, the appellant obtained a US$79 million Singapore judgment against a judgment debtor who had pledged six fixed deposit accounts with RHB Bank as security for banking facilities pursuant to a letter of set off. After a garnishment order nisi was served on RHB Bank, the bank nevertheless exercised its right of S/N Ot2gjGiO7ESo9ejdkBUgmQ set off and uplifted the accounts to satisfy the judgment debtor's debts. [104] The issue was whether the money sought to be attached belonged to the judgment debtor and whether RHB Bank was entitled to exercise its right of set off after being served with the garnishment order nisi. The Federal Court (by majority) held that the garnishee had successfully shown sufficient cause why the garnishment order nisi should not be made absolute, finding that RHB Bank was a bona fide recipient for value without notice and its right of set off could not be defeated. [105] In reaching this decision, the Federal Court referred to the principle established in Badeley v Consolidated Bank (1888) 38 Ch D 238 that “a creditor can only attach by a garnishee order such property of his debtor as the debtor could deal with properly and without violation of the rights of other persons.” The Federal Court further endorsed Binamin MJC Quarry Sdn Bhd v Way Soon Construction Sdn Bhd [2001] 6 CLJ 213 (HC) over Kedah Kelang Papan Sdn Bhd v Hansol Sdn Bhd & Anor [1988] 1 CLJ Rep 645 (HC), establishing that a judgment creditor cannot be in a better position contractually than the judgment debtor. If the judgment debtor is contractually unable to access the funds, the judgment creditor cannot access those funds through garnishee proceedings. S/N Ot2gjGiO7ESo9ejdkBUgmQ [106] In the present case, the Plaintiff's Bank Account was frozen under the contractual right of the Defendant, preventing the Plaintiff from accessing its funds. The evidence from DW4's cross-examination confirms this understanding (Notes of Proceedings, page 327, lines 3-22): when asked whether “any amounts kept in Plaintiff's account, which is due or payable to the Plaintiff, will not be due or payable to the Plaintiff until the due diligence is completed,” DW4 responded: “Yes, it's correct.” This admission demonstrates that the frozen funds were not a “debt due or accruing due” that could be attached through garnishee proceedings. [107] I do not accept the application of Sincere Watch to the circumstances of the instant case. That case dealt with “restrictions as to mode of withdrawal” in the context of administrative procedures (such as presenting a passbook or giving notice before withdrawal), not a complete freezing of accounts due to due diligence concerns. Such administrative restrictions are qualitatively different from a situation where the account holder has no access to the funds whatsoever until certain conditions are met. The “restriction as to mode of withdrawal” contemplated in Order 49, Rule 1(3) ROC 2012 and in Sincere Watch refers to procedural requirements for withdrawal, not substantive barriers to accessing the funds. The freezing of an account falls into the latter category. S/N Ot2gjGiO7ESo9ejdkBUgmQ [108] Even if the funds were attachable, the Defendant had an avenue to dispute liability under Order 49, Rule 5 of the ROC 2012, which provides: “Where on further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from him, the Court may summarily determine the issue... or order in Form 100 that any question necessary for determining the liability of the garnishee be tried.” The Defendant failed to avail itself of this provision despite having clear grounds to dispute its liability given the frozen status of the Bank Account. [109] The Defendant argues that it had no reasonable basis to dispute liability and that Clause 20.4 of the Standard Terms exempts it from any obligation that would cause it to breach a court order. Clause 20.4 provides: “No breach: Nothing in the Agreement obliges Us to do or omit to do anything if it would or might in Our reasonable opinion constitute a breach of Our policy or any applicable law or order or sanction of any Authority.” [110] However, this argument misapprehends the nature of the issue. Disputing liability under Order 49, Rule 5 ROC 2012 would not constitute a breach of the court order; rather, it would be a proper exercise of the Defendant's right to seek judicial determination of whether the debt was indeed due or accruing due, particularly in light of the frozen status of the Bank Account. The Defendant's reliance on Clause 20.4 is therefore misplaced. S/N Ot2gjGiO7ESo9ejdkBUgmQ [111] The evidence shows that DW1, Aza Izati Binti Mokhtar, who handled the garnishee proceedings, admitted during cross-examination that she had no knowledge that the Bank Account had been frozen. Her instructions were simply to “attach the account” without any investigation as to whether there was money due (Notes of Proceedings, page 204, lines 14-36). This lack of communication between departments within the Defendant bank demonstrates a failure to exercise reasonable care and skill in handling the garnishee proceedings. [112] The Defendant seeks to rely on Order 49, Rule 8 ROC 2012, which provides that payment made by a garnishee in compliance with an order absolute “shall be a valid discharge of his liability to the judgment debtor” notwithstanding that the garnishee proceedings are subsequently set aside. The Defendant also cites Clive v Stanbic Bank (U) Ltd [2017] 2 LRC 456 (Supreme Court of Uganda) and Customs and Excise Commissioners v Barclays Bank plc [2006] 2 All ER (Comm) 831 (House of Lords) to support its position that a bank's duty to comply with a valid court order supersedes any contractual duty it may have to its customer. [113] However, I find that Order 49, Rule 8 ROC 2012 cannot shield the Defendant from liability in the circumstances of this case. First, Section 44 of the Evidence Act 1950 expressly permits any party to show that a judgment or order was obtained by fraud or collusion, to invalidate its S/N Ot2gjGiO7ESo9ejdkBUgmQ foundational legitimacy. Second, Order 92, Rule 4 ROC 2012 preserves the court's inherent powers “to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” To allow the Defendant to rely on a procedural rule to escape liability for its prior breaches of contract and negligence, which enabled the fraud to occur in the first place, would be unjust and contrary to these inherent powers. [114] Furthermore, the cases cited by the Defendant are distinguishable. Clive v Stanbic Bank involved a Mareva injunction rather than a garnishee order, and the customer was attempting to countermand a proper transfer that had already been validly initiated. Customs and Excise Commissioners v Barclays Bank concerned the effect of a freezing order on a bank's liability to third parties, not the bank's liability to its own customer for failing to exercise reasonable care and skill in handling garnishee proceedings. [115] The Defendant's argument that it was merely requesting Messrs ZB to mention on its behalf in accordance with standard practice, citing Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-pekerja Ladang Bhd [2000] 8 CLJ 246 (HC) and Standard Chartered Bank v Central Provident Fund Board [1989] 1 MLJ 268 (Singapore CA), is also unpersuasive. The issue is not the practice of “mentioning on behalf” per se, but the Defendant's failure to exercise appropriate supervision and control over the S/N Ot2gjGiO7ESo9ejdkBUgmQ garnishee proceedings, particularly in light of the unusual circumstances surrounding them. [116] There were several circumstances that should have put the Defendant on notice to scrutinise the garnishee proceedings more carefully. First, the Plaintiff had maintained a banking relationship with the Defendant since the 1970s (over 40 years). Second, the Defendant was notified in November 2014 that the Plaintiff had been summarily wound up in August 2013 (Bundle B4, page 831). Third, the garnishee order instructed payment into a solicitor's account rather than directly to the judgment creditor, which is unusual. Had the Defendant conducted basic checks before making payment on 18.1.2017, it would have discovered that the solicitor in question, ZFK, had been ordered to be suspended on 13.1.2017, though this suspension would only take effect from 3.2.2017 due to the 21-day cooling-off period. [117] The Defendant's argument that Clause 3.1(g) of the Standard Terms exempts it from providing legal advice to the Plaintiff is a mischaracterisation of the Plaintiff's case. The Plaintiff was not seeking legal advice from the Defendant but rather basic information about the status of its account and copies of the relevant orders so that it could seek its own legal advice. This is evident from the Plaintiff's email of 14.2.2017 (Bundle B8, page 1015): “Please can you obtain any information that you can in relation to the S/N Ot2gjGiO7ESo9ejdkBUgmQ order, forward it to me as a matter of urgency we will need to take legal advice.” [118] While I accept that ZFK was still legally practicing when the payment was made, the confluence of unusual circumstances - a judgment against a company in liquidation and payment to solicitors rather than the judgment creditor - should have prompted the Defendant to exercise greater caution and to consider disputing liability under Order 49, Rule 5 ROC 2012. The Defendant's witness DW1 also demonstrated confusion between the concepts of “freezing” and “attachment” during cross-examination (Notes of Proceedings, pages 223-224), initially using these terms interchangeably before acknowledging they were different. This confusion is concerning given that DW1 was responsible for handling garnishee proceedings, which require a clear understanding of the legal concepts involved. [119] The Defendant argues that the Quincecare duty does not apply to this case, as it only applies to situations where a bank executes a payment instruction from a customer's agent who is acting fraudulently, not to compliance with court orders. I acknowledge that the conventional application of the Quincecare duty may not extend to the present circumstances. However, even if I am wrong in drawing any principles from Quincecare, my findings on the Defendant's liability rest on entirely separate and sufficient grounds—namely, the contractual duty to exercise S/N Ot2gjGiO7ESo9ejdkBUgmQ reasonable care and skill, the common law duty of care owed by banks to their customers, and the specific obligations arising in the context of garnishee proceedings as recognised in Top-A Plastics. These established duties provide an ample basis for liability without any need to extend or apply Quincecare principles. [120] In conclusion, I find that the Defendant breached its duty of care to the Plaintiff in its handling of the garnishee proceedings by: a) failing to provide adequate notification of the proceedings; b) creating confusion through inconsistent terminology; c) failing to dispute liability under Order 49, Rule 5 ROC 2012 despite the frozen status of the Bank Account; and d) releasing funds that did not constitute a “debt due” given that the Bank Account was frozen. [121] Each of these breaches is independently sufficient to establish liability, and collectively they present a compelling case of negligence that directly contributed to the loss suffered by the Plaintiff. The Defendant's arguments based on Order 49, Rule 8 ROC 2012, Clause 20.4 of the Standard Terms, and the cases of Clive v Stanbic Bank and S/N Ot2gjGiO7ESo9ejdkBUgmQ Customs and Excise Commissioners v Barclays Bank do not exonerate it from liability in the particular circumstances of this case. Causation of Loss [122] I now turn to address the crucial question of causation. The Plaintiff contends that the “but-for” test of causation has been satisfied, as the Defendant's breaches directly enabled the fraud to succeed. The Defendant, conversely, argues that the “proximate” or “effective” cause of the Plaintiff's losses was the fraudulent conduct of third parties, namely ABK, Messrs ZB and/or ZFK, and that the Plaintiff's own conduct broke the chain of causation. [123] The applicable test for causation in cases of this nature is the “but-for” test. As held by the Court of Appeal in Ngan Siong Hing v RHB Bank Bhd [2014] 2 MLJ 449, the “but-for” test is important in determining whether the defendant's act was the main factor causing the damage suffered by the plaintiff. The court noted that “the first step in establishing causation is to eliminate irrelevant causes, and this is the purpose of the 'but-for' test.” The court further stated that what is relevant is to identify “the effective cause of the resulting damage in order to assign responsibility to that damage.” S/N Ot2gjGiO7ESo9ejdkBUgmQ [124] Applying this test to the present case, I must determine whether the damage claimed by the Plaintiff would have occurred “but for” the negligence or breach of contract by the Defendant. The evidence before me clearly demonstrates that had the Defendant properly reactivated the Plaintiff's Bank Account in a timely manner, as it was contractually obliged to do, the funds would have been withdrawn well before the fraudulent garnishee proceedings commenced in late 2016. [125] The Defendant forcefully argues that the Plaintiff had no intention to withdraw the funds, citing PW2's cross-examination testimony regarding “no urgency” to withdraw. The Defendant points to multiple occasions in PW2's testimony where she admitted there was “no urgency” to withdraw funds between 2014 and 2017. For instance, when asked whether the Plaintiff had expressed any intention to withdraw the money in July 2015, PW2 replied: “Not to withdraw the money, no.” The Defendant further highlights PW2's admission that the Plaintiff delayed in responding to the Defendant's requests because “there weren't urgent plans to withdraw the funds.” [126] However, this selective interpretation misconstrues the evidence and fails to appreciate the crucial distinction between “lack of urgency” and “lack of intention” to withdraw funds. Upon re-examination, PW2 clarified the distinction between “urgency” and “plan”, testifying that: “There wasn't any urgent requirement but there was always have been a S/N Ot2gjGiO7ESo9ejdkBUgmQ requirement to remove the funds because for two reasons. One because the balance has got to quite a large level and secondary because we're in voluntary winding up, we would have needed to remove the funds and close the account.” This evidence is consistent with the Plaintiff's status as a company in liquidation, which by its nature requires the realisation of assets for distribution to stakeholders. [127] PW2 further testified unequivocally during cross-examination that: “If we'd have unfrozen the account, we would have withdrawn the funds because Pax was in liquidation. So, we had to collect the funds.” (Notes of Proceedings page 161, line 33). This statement decisively demonstrates the Plaintiff's intention to withdraw the funds had the Bank Account been reactivated. The fact that the Plaintiff did not characterise this as “urgent” does not negate the clear intention to withdraw the funds as part of the liquidation process. [128] The Defendant's reference to the email dated 4.12.2015 where the Plaintiff informed the Defendant that it needed to “instruct the registrar to deposit a number of dividend checks into the accounts that have previously been returned” (Bundle B4 page 922) does not undermine this intention. It merely shows that the Plaintiff was managing its affairs responsibly by ensuring all assets were first collected before distribution, which is entirely consistent with standard liquidation practices. S/N Ot2gjGiO7ESo9ejdkBUgmQ [129] I find the Defendant's witness testimony further supports this conclusion. DW2, the Head of Client Due Diligence, admitted during cross-examination that the normal timeframe to respond to a customer is “within seven working days” and that if the requested information is provided by the customer, it takes “four to five days to unfreeze the account.” DW4 similarly confirmed that the standard time period to reactivate an account once all information is provided is “three to four days.” [130] Based on this evidence, had the Defendant unfrozen the Bank Account in July 2016, following Hafiz's email of 12.7.2016 which stated “We will assist to activate the account & notify once account active,” the Plaintiff would have had ample time to withdraw the funds before the garnishee proceedings were initiated in late 2016. The fact that the account remained frozen until the time of the garnishee proceedings is directly attributable to the Defendant's breach of contract and negligence. [131] The Defendant relies upon the cases of Tuanku Dato Sri Iskandar v Ahmad Kamil Abdullah [2009] 6 CLJ 359 (HC), Ngan Siong Hing v RHB Bank Bhd, and Khee San Bhd & Anor v OCBC Bank (M) Bhd [2021] MLJU 645 (HC) to argue that causation is not established if the plaintiff's losses were caused by the fraudulent conduct of third parties. However, these cases are distinguishable on their facts and do not assist the Defendant's position. S/N Ot2gjGiO7ESo9ejdkBUgmQ [132] In Tuanku Dato Sri Iskandar, the plaintiff's claims against the defendant auditor for damages were dismissed despite the court finding that the auditor was negligent. As Balia Yusof Wahi J (as he then was) stated at paragraph 12: “The plaintiff has proven his case against the third defendant and I hold that the third defendant was negligent.” However, the court found that the loss claimed was not attributable to the auditor's negligence. As the court observed at paragraph 14: “whatever losses that MATTA suffers was caused by the fraudulent acts of these other defendants and is not attributable to the third defendant's negligence.” The key distinction is that in Tuanku Dato Sri Iskandar, the court found at paragraph 15 that “the loss suffered and claimed by the plaintiff is not the kind of loss which is attributable to the breach of duty and the negligence of the third defendant in their carrying out of the audit work.” The court awarded only nominal damages of RM1. By contrast, in the present case, the Defendant's failure to reactivate the account despite repeated requests over several years created the very conditions necessary for the fraud to succeed. Unlike in Tuanku Dato Sri Iskandar, where the auditor's negligence merely failed to detect a fraud that would have occurred regardless, the Defendant’s negligence here was the operative factor that made the fraud possible in the first place. Had the Defendant properly performed its contractual obligations to reactivate the Bank Account based on the documents provided between 2014-2016, which DW4 acknowledged should have taken only “three to four days” once documentation was complete, the fraudulent S/N Ot2gjGiO7ESo9ejdkBUgmQ garnishment would have been entirely impossible as the funds would have already been withdrawn. [133] Similarly, in Ngan Siong Hing v RHB Bank Bhd, the Court of Appeal found no causal link between the solicitors' failure to verify legal instruments and the losses suffered by the plaintiff. However, that case is clearly distinguishable. As Hamid Sultan JCA observed at paragraphs 27-29 of the majority judgment, the fraudulent scheme in that case “has already commenced even before the respondent agreed to provide the loan and that too before the appointment of the appellant.” The court emphasised that “the respondent has fueled the tort or crime when it approved the loan and the tort or crime continued until it caused loss or damage to the respondent.” In stark contrast, in the present case, the fraud could only succeed because of the Defendant’s prior breaches. The garnishment proceedings could only attach funds that remained in the Bank Account due to the Defendant's failure to reactivate it despite the Plaintiff's repeated requests and compliance with documentation requirements. Unlike in Ngan Siong Hing, where the bank had actively “fueled” the fraud by approving a loan based on fraudulent documentation, here the Plaintiff was an innocent victim whose access to its own funds was wrongfully restricted by the Defendant. Furthermore, in Ngan Siong Hing, the letter of instruction from the bank to the solicitors regarding searches was found by the court to be “vague” and without “specific instruction on related issues.” By contrast, the contractual obligations in this case are clear S/N Ot2gjGiO7ESo9ejdkBUgmQ and specific - the Defendant was required under Clause 3.1(c) of the Standard Terms to “use reasonable endeavours to re-establish any selected Channel under Our control which is interfered with or becomes unavailable.” [134] The Defendant’s reliance on Khee San Bhd, however, must be considered in light of the factual distinctions between that case and the present matter. In that case, Liza Chan Sow Keng JC (as she then was) found that the plaintiffs had submitted fictitious documents to the defendant bank for drawdowns under banking facilities, and that the monies had been siphoned by the plaintiffs' own director. The court held at paragraph 52 that “the chain of causation was broken. The principle of novus actus interveniens applies. Here, the monies were paid into the 2nd Plaintiff's account – the actual cause of the losses were due to the independent act of the Plaintiffs' own authorised director DSL.” Critically, the court emphasised at paragraph 45 that “it is not disputed that all monies disbursed by the Defendant for the Banker's Acceptance were made into the 2nd Plaintiff's account” and that the defendant bank “cannot be held responsible for how the monies were utilised after they were disbursed to the 2nd Plaintiff's account.” The present case stands in stark contrast. Here, the loss did not result from misuse of funds after they were properly made available to the account holder. Rather, the loss occurred precisely because the Defendant failed to make the funds available to the Plaintiff despite its contractual obligation to do so. Furthermore, in Khee San, the court found at paragraph 42 S/N Ot2gjGiO7ESo9ejdkBUgmQ that the plaintiffs were “approbating and reprobating” by first representing documents as genuine to secure drawdowns and then claiming they were fictitious to avoid repayment. By contrast, the Plaintiff has maintained a consistent position throughout – that the Defendant failed to reactivate its Bank Account despite receiving all required documentation. The circumstances of this case are fundamentally different from Khee San, rendering that authority inapplicable to the present situation. [135] The Defendant further argues that the Plaintiff broke the chain of causation through its own unreasonable conduct in relation to the unfreezing of the Bank Account. The Defendant contends that the Plaintiff repeatedly delayed in responding to the Defendant's requests for documents and often provided incomplete or insufficient documentation. The Defendant cites PW2's admissions that up until 11.8.2014, the Plaintiff had not submitted all the documents and information repeatedly requested by the Defendant, and that even as late as July 2016, the documents provided were still incorrect, including a list of authorised signatories for Drewson Investment Ltd instead of the Plaintiff. [136] I find this characterisation of the evidence both selective and misleading. When the documentary evidence is examined in its entirety, it becomes clear that the Plaintiff promptly responded to all of the Defendant's requests for information when those requests were clearly communicated. The documentation before the court S/N Ot2gjGiO7ESo9ejdkBUgmQ demonstrates that the Plaintiff diligently followed up when no response was forthcoming. For example, after providing initial information on 14 July 2014 and further information in November 2014, the Plaintiff sent eight email chasers seeking updates, which received only minimal responses. [137] The minor typographical error referring to “Drewson Investment Ltd” on an authorised signatory list that was clearly headed “Pax Investments” and referenced the correct account number of the Plaintiff cannot reasonably be characterised as “incomplete or insufficient documentation” that would justify years of delay in reactivating the Bank Account. As PW2 explained during re-examination, the document “was tabled and was approved as the authorised signatory list” for the Plaintiff despite this single typographical error. [138] I am satisfied that any delays in the reactivation process were attributable to the Defendant's own conduct, including personnel shuffling, non-responses, and failure to maintain proper records of documents submitted by the Plaintiff. This conclusion is supported by DW4's own admission in his email of 10.2.2017: “I have checked with our review team in Malaysia. Unfortunately, there is no record of any document received at our end.” This admission fundamentally undermines the Defendant's argument that documents were incomplete or insufficient; the reality is that the Defendant simply lost track of the information provided. S/N Ot2gjGiO7ESo9ejdkBUgmQ [139] The Defendant also argues that the Plaintiff failed to take prompt action after being notified of the garnishee proceedings. It points to the fact that the Plaintiff only engaged Jersey lawyers in March 2018, more than a year after the funds were released, and only filed applications to set aside the judgment in default and garnishee orders in 2019 and 2020 respectively. [140] I do not find this argument persuasive. The evidence shows that after the funds were transferred in January 2017, the Plaintiff appointed lawyers in early 2018 to investigate. By that time, ABK (the entity that had fraudulently obtained the funds) had been dissolved, necessitating a separate legal action to reinstate ABK before proceedings to set aside the judgment in default and garnishee orders could commence. These proceedings took place between 2019 and 2020, during which the COVID-19 pandemic further contributed to delays. Given these complex circumstances, I find that the Plaintiff acted reasonably in pursuing the recovery of its funds. [141] The Defendant suggests that the Plaintiff's failure to initiate legal action against ABK, Messrs ZB, or ZFK is significant. However, this argument misunderstands the legal principles involved. [142] In Bank Bumiputra Malaysia Bhd & Anor v Lorrain Esme Osman & Ors [1987] 1 MLJ 502, Bank Bumiputra Malaysia and its subsidiary BMF sued their directors for breach of S/N Ot2gjGiO7ESo9ejdkBUgmQ fiduciary duties after the directors caused BMF to release US$40 million to an insolvent borrower contrary to express instructions. The defendants argued that subsequent assignments of the debts to Petronas meant the plaintiffs had validated the loans and could no longer maintain their action. The issue was whether the assignments precluded the plaintiffs from pursuing their claim for breach of fiduciary duty. [143] The Defendant suggests that the Plaintiff's failure to initiate legal action against ABK, Messrs ZB, or ZFK is significant. However, this argument misunderstands the legal principles involved. As established in Bank Bumiputra Malaysia Bhd & Anor v Lorrain Esme Osman & Ors, a plaintiff has the right to elect which cause of action to pursue when the same facts give rise to separate causes of action against different defendants. The Privy Council in Mahesan v Malaysian Government Officers' Co-operative Housing Society Ltd [1978] 1 MLJ 149, as cited in that case, confirmed that where the same facts give rise to a cause of action against one defendant for money had and received and to a separate cause of action for damages in tort against another defendant, the plaintiff is entitled to choose which defendant to sue. [144] With respect to the handling of the garnishee proceedings, I find that the Defendant's failures directly contributed to the loss. The Defendant failed to notify the Plaintiff of the garnishee proceedings in a timely and clear manner, S/N Ot2gjGiO7ESo9ejdkBUgmQ creating confusion through the use of terminology that mirrored the language used in the due diligence freezing process. The Defendant's letter dated 27.12.2016 used the term “obliged to freeze” rather than “attachment,” leading the Plaintiff to believe it was an escalation of the due diligence process rather than a separate legal proceeding. This confusion is evident from the Plaintiff's immediate response on 9.1.2017: “We have received... this letter is the first we have heard from you. Can you explain the meaning of this?” [145] Furthermore, the Defendant failed to dispute liability under Order 49, Rule 5 of the ROC 2012, which provides a mechanism for garnishees to dispute liability to pay a debt claimed to be due. Given that the Bank Account was frozen under the Defendant's contractual right, preventing the Plaintiff from accessing its funds, the Defendant should have disputed whether those funds were available for garnishment. DW1, who handled the garnishee proceedings, admitted during cross-examination that she had no knowledge that the account had been frozen and was simply instructed to “attach the account” without any investigation as to whether there was money due. [146] While the Defendant argues that it had no reason to believe the garnishee orders were fraudulently obtained, this misses the point. The issue is not whether the Defendant should have detected the fraud, but rather that the Defendant's prior breaches created the very conditions that S/N Ot2gjGiO7ESo9ejdkBUgmQ made the fraud possible. Had the Defendant properly reactivated the Bank Account when it was contractually obliged to do so, the funds would not have been present to be garnished. [147] While the Defendant refers to Sri Minal Construction Sdn Bhd v Hong Kong Bank Malaysia Berhad [2007] 7 MLJ 367 (HC), the case is distinguishable on its facts. In Sri Minal, the plaintiff had borrowed RM220,000 from the defendant bank and charged a piece of land (Geran 21572, Lot 947, Bandar Georgetown) as security. After defaulting on the loan, foreclosure proceedings were commenced but the loan was ultimately fully settled in November 1992. The bank instructed its solicitors to prepare discharge documents on 11.11.1992. However, the plaintiff only notified the bank via letters dated 29.1.1996 and 4.2.1996 to return the title deed by 14.2.1996 because it had allegedly found a buyer willing to purchase the property for RM1.5 million, with the sale to be concluded on 15.2.1996. The bank only returned the title deed on 23.7.1996, approximately three years and seven months after full settlement of the loan. [148] The issue before the court was whether the defendant bank was liable for breach of contract and/or breach of duty of care arising from its alleged failure, refusal, or neglect to effect the discharge of the charge and return the title deed within a reasonable time. The plaintiff claimed that by reason of this breach, the agreement with the third party S/N Ot2gjGiO7ESo9ejdkBUgmQ (HLTR Development Sdn Bhd) for the sale of the land had been rescinded, causing the plaintiff to suffer damages and loss. [149] The court dismissed the plaintiff's claim with costs, holding at paragraph [62] that “there was not express or implied contractual term nor statutory duty on the part of the defendant to prepare the discharge with a certain time frame” and that there was no parallel tortious act attributed to the defendant bank. The court found that “the bank's responsibilities do not extend to extraneous and supervening events and even more so the conduct of the plaintiff in not communicating more information until a very late state.” The court also found at page 381 that “nothing was stated on the time frame within which the documents were to be returned” and “the provisions of the NLC... prescribe the procedure but not the time frame within which the processes of discharge were to be executed and completed.” [150] Crucially, the court placed significant weight on the conduct of the plaintiff, noting at page 383 that “the conduct that was unreasonable or overwhelming was PW1's own act of delay in imparting information... that land was to be sold and that a buyer had been found.” The court specifically observed that the plaintiff's letter was dated 29 January 1996 and “required the documents of title for an agreement which was alleged, to be concluded on 15 February 1996 and yet the S/N Ot2gjGiO7ESo9ejdkBUgmQ documents of title were expected to be returned on the 14 February 1996.” [151] The present case is entirely distinguishable. Unlike in Sri Minal, here we have clear contractual obligations under Clause 3.1(a) and (c) of the Standard Terms that require the Defendant to use “reasonable care and skill” and to “use reasonable endeavours to re-establish any selected Channel” that has become unavailable. Further, unlike in Sri Minal where the plaintiff gave late notice of its intended sale with an unreasonably short deadline, the Plaintiff had been consistently attempting to reactivate its account since 2014, years before the garnishee proceedings. The Sri Minal case actually supports the Plaintiff's position when the court stated at page 382 that “the bank's responsibilities do not extend to extraneous and supervening events and even more so the conduct of the plaintiff in not communicating more information until a very late state.” Here, there was no failure of communication by the Plaintiff – quite the opposite, as the evidence shows the Plaintiff's persistent attempts to resolve the situation over several years. [152] I find that the harm suffered by the Plaintiff was entirely foreseeable. Any prudent financial institution holding millions of ringgits should foresee the possibility of being a target for fraud. The Defendant's failure to properly reactivate the Bank Account and to handle the garnishee proceedings with due care created an environment where third parties could misappropriate the Plaintiff's assets. This S/N Ot2gjGiO7ESo9ejdkBUgmQ was not merely a coincidental relationship but a direct causal link. [153] In conclusion on the issue of causation, I find that the “but-for” test has been satisfied. Had the Defendant properly reactivated the Plaintiff's Bank Account as it was contractually obliged to do, the funds would have been withdrawn before the fraudulent garnishee proceedings commenced. The Defendant's breaches were the proximate cause of the loss, and the chain of causation was not broken by either the fraudulent conduct of third parties or any conduct of the Plaintiff. The harm suffered was a foreseeable consequence of the Defendant's breaches of contract and negligence. Mitigation and contributory negligence [154] The Defendant has raised arguments that the Plaintiff failed to mitigate its losses and was contributorily negligent. The Defendant contends that the Plaintiff delayed in taking legal action to recover the funds, having waited more than a year before engaging lawyers and more than three years before taking steps to set aside the judgment in default and garnishee orders. The Defendant further argues that the Plaintiff ought to have pursued legal action against the parties responsible for the fraud, namely ABK, Messrs ZB, and/or ZFK. These arguments, if successful, would either reduce or eliminate the Defendant's liability to the Plaintiff. S/N Ot2gjGiO7ESo9ejdkBUgmQ [155] The Plaintiff contends that it took reasonable steps to mitigate its losses, having taken immediate steps after discovering the fraud. The Plaintiff argues that the delay in pursuing legal action was due to complex circumstances, including its status as a foreign company, the need to report to stakeholders across multiple jurisdictions, and the dissolution of ABK, which necessitated separate legal proceedings. The Plaintiff also notes that the COVID-19 pandemic further contributed to delays in the legal proceedings. [156] In addressing these contentions, I must determine whether the Plaintiff acted reasonably in the circumstances to mitigate its losses, and whether its conduct was so unreasonable as to constitute contributory negligence. [157] The law on mitigation is well established. A plaintiff has a duty to take all reasonable steps to mitigate the loss consequent upon a defendant's wrong, and cannot recover damages for any loss which could have been avoided by taking such steps. However, the burden of proving that a plaintiff has failed to mitigate its loss rests on the defendant. This principle was articulated in Lo Foi v Lee Ah Hong @ Lee Lum Sow & Ors [1997] MLJU 310 (HC), where the court held that a defendant who slept on their rights by waiting for two years before taking steps to remove a private caveat “did not take steps, which a reasonable man would, to mitigate their losses.” The Defendant relies heavily on this case and also on IB Capital Sdn Bhd v Ivory S/N Ot2gjGiO7ESo9ejdkBUgmQ Indah Sdn Bhd & Anor [2022] 1 MLJ 860 (CA), arguing that a plaintiff has not taken reasonable steps to mitigate its losses if it did not avail itself of available court processes. [158] However, these cases must be distinguished on their facts. In Lo Foi, Abdul Malik Ishak J held that defendants who waited two years before applying to remove a private caveat “did not take steps, which a reasonable man would, to mitigate their losses.” The critical distinction is that in Lo Foi, the defendants had immediate available remedies under sections 326 and 418 of the National Land Code which they failed to pursue, with “no valid reasons advanced by the defendants for the delay.” The court specifically noted that these remedies would have been “speedier” and less costly. In contrast, the present case involves a foreign company facing a sophisticated fraud scheme that required complex cross-jurisdictional investigations before appropriate legal remedies could be identified and pursued. Unlike the defendants in Lo Foi who had clear statutory remedies immediately available to them, the Plaintiff first needed to establish the factual basis for any potential claim, identify the appropriate parties, and navigate multiple procedural hurdles including the reinstatement of a dissolved company before substantive proceedings could commence. In Lo Foi, the delay was unexplained and unreasonable. In contrast, in the present case, the Plaintiff has provided detailed explanations for the timeline of its actions, supported by documentary evidence. S/N Ot2gjGiO7ESo9ejdkBUgmQ [159] Similarly, IB Capital Sdn Bhd is distinguishable on its facts. In that case, the plaintiff (IB Capital) had lent RM8.8 million to Dato' Krishna Kumar (Sharma), which was converted into a sale and purchase agreement dated 2.10.2006 for land in Penang. The plaintiff's private caveats expired on 18.7.2012 and 30.11.2012 respectively. On 5.9.2013, the land was transferred to the first defendant and charged to the second defendant (a bank). The plaintiff filed suit on 29.1.2014. The issue was whether the plaintiff, as an equitable chargee and beneficial owner, had lost its prior interest due to delay and laches, and whether the defendants were bona fide purchasers or constructive trustees. [160] The Court of Appeal (per Nantha Balan JCA) allowed the appeal and held that both defendants had actual knowledge of the plaintiff's interest and were guilty of equitable fraud and unconscionable conduct. On delay, the court found at paragraph 294 that the period “around a year or thereabouts” from 29.11.2012 to 5.9.2013 was “by no means a spectacular delay and it cannot be said that laches had set in.” At paragraph 304, the court held “there is absolutely no evidence that the plaintiff had at any time relinquished or waived their rights or interest as equitable chargee.” Critically, the court rejected the laches defense despite acknowledging at paragraph 346 the plaintiff's “inaction or rather...failure to mitigate,” concluding that “the plaintiff's prior interest was not lost because of their inaction” given the defendants' knowledge and equitable fraud. S/N Ot2gjGiO7ESo9ejdkBUgmQ [161] In the present case, the Plaintiff's timeline is comparable to or more diligent than IB Capital. The period from discovery of the fraud in early 2018 to filing suit on 29.8.2019 is approximately 18 months. The evidence reveals that while the Plaintiff became aware of the garnishee proceedings in January 2017, it did not immediately understand the nature of these proceedings due to the confusing terminology used by the Defendant in its communication. The Defendant's letter dated 27.12.2016 used the term “obliged to freeze” rather than “attachment”, which mirrored the language used in the due diligence freezing process that had been ongoing for years. This created confusion for the Plaintiff, as evidenced by its email of 9.1.2017 seeking clarification. [162] Moreover, between February 2017 and early 2018, the Plaintiff was misled by the Defendant's communications. On 13.2.2017, the Defendant informed the Plaintiff that the funds were “frozen” and awaiting a court process for the payment of the funds to be made to the judgment creditor, creating the impression that the funds were still in the Bank Account. On 15.2.2017, the Defendant stated it would update the Plaintiff “on the legal firm in charge of the case” when information was available, leading the Plaintiff to believe that its interests would be protected by the Defendant. The Defendant never provided this update, leaving the Plaintiff in the dark. S/N Ot2gjGiO7ESo9ejdkBUgmQ [163] It was only upon conducting its own investigations that the Plaintiff discovered the full extent of the fraud. The evidence of PW1, David Jonathan McMahon, which I find credible, explained that once the fraud was discovered, the Plaintiff took systematic steps to address it, including engaging Jersey lawyers in March 2018 and Malaysian lawyers shortly thereafter. PW1's evidence on this point was not effectively challenged during cross-examination. [164] While the Defendant points to the first time entry in the itemised timecard narrative dated 7.3.2018 (Bundle B6, page 1070) as evidence of delay, this fails to account for the initial investigation period and the complex cross-jurisdictional reporting requirements faced by the Plaintiff, a Jersey company in liquidation. The fact that formal legal engagement commenced at this time does not mean that the Plaintiff was inactive before then. [165] I find the Plaintiff's explanation for the timing of its formal legal actions to be reasonable. As a company based in Jersey, Channel Islands, the Plaintiff had to navigate complex reporting lines and stakeholder responsibilities across multiple jurisdictions. The evidence showed that by the time the Plaintiff initiated legal proceedings, ABK (the judgment creditor) had been dissolved, necessitating a separate legal action to reinstate ABK before proceedings against it could commence. S/N Ot2gjGiO7ESo9ejdkBUgmQ [166] The chronology of events from 2018 to 2022 reflects a systematic approach by the Plaintiff to address the fraudulent garnishee proceedings. As explained by PW1, the Plaintiff had to first seek a declaration that the dissolution of ABK was void, as directed by the learned Registrar with the concurrence of counsel for the Registrar of Companies. This was necessary to enable proceedings to be taken as might have been taken if ABK had not been dissolved. The Plaintiff filed an Originating Summons on 11.6.2019 seeking to reinstate ABK and to reverse the dissolution. As further complexity arose regarding how ABK was struck off, the Plaintiff had to amend its application, which was allowed on 11.9.2019, with the final orders being issued on 24.10.2019. [167] Subsequently, the Plaintiff proceeded to file an application for setting aside the Judgment in Default of Appearance on 1.4.2019 and obtained an order setting it aside on 8.1.2020. The Plaintiff then filed an application to set aside the Garnishee Order to Show Cause and Garnishee Order Absolute on 30.1.2020 and obtained the orders on 9.3.2020. Each step was taken in a logical sequence as required by the legal process. [168] It is also significant that the COVID-19 pandemic and subsequent Movement Control Orders in Malaysia from early 2020 caused unavoidable delays in legal proceedings. These were extraordinary circumstances beyond the Plaintiff's control and should not be held against it. I accept S/N Ot2gjGiO7ESo9ejdkBUgmQ the Plaintiff's evidence that these factors contributed to the timeline of the legal proceedings. [169] With regard to the Defendant's argument that the Plaintiff should have pursued legal action against ABK, Messrs ZB, and/or ZFK, I note the well-established principle that a plaintiff has the right to choose which of several potential defendants to pursue. This principle was articulated in Bank Bumiputra Malaysia Bhd v Lorrain Esme Osman & Ors, where the Court of Appeal cited with approval the Privy Council's decision in Mahesan, which held that where the same facts give rise to a cause of action against one defendant for money had and received and to a separate cause of action for damages in tort against another defendant, the plaintiff may elect which cause of action to pursue. [170] I am not persuaded by the Defendant's argument that the Plaintiff should have pursued the third parties first. As correctly submitted by the Plaintiff, it was the Defendant who was in a direct contractual relationship with the Plaintiff and who had control over the Plaintiff's funds. The Defendant, having released the funds negligently, is the proper party against whom the Plaintiff should seek redress. Moreover, the Defendant itself could have pursued the third parties for monies had and received if it believed they were unjustly enriched at its expense. S/N Ot2gjGiO7ESo9ejdkBUgmQ [171] The cause of action for monies had and received properly lies with the Defendant, not the Plaintiff, as it was the Defendant who directly transferred the funds to the third parties. The Plaintiff's relationship is with the Defendant, and it is the Defendant who has the most direct claim against the fraudsters. It would be unreasonable to expect the Plaintiff to pursue parties with whom it had no direct dealings, especially when those parties had already taken steps to dissolve themselves and hide their assets. [172] As for contributory negligence, the Defendant's arguments mirror those on failure to mitigate, focusing on alleged delays in responding to requests for information, providing incomplete documentation, and delay in taking legal action. Section 12(1) of the Civil Law Act 1956 provides that where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. [173] The Defendant points to PW2's admissions during cross-examination regarding delays in providing documentation and the lack of urgency in withdrawing funds. However, these admissions must be understood in context. PW2 clarified during re-examination that while there was “no urgent need” to withdraw funds, the Plaintiff would have withdrawn the funds because the Plaintiff was in liquidation (Notes of Proceeding, page 161, line 33). PW2 further S/N Ot2gjGiO7ESo9ejdkBUgmQ explained the distinction between “urgency” and “plan” (Notes of Proceedings, page 183, lines 1 to 9: “There was no urgent need to withdraw the funds from the bank account. Pax didn't require the funds to be used for anything, so it's the word 'Urgent'. But there wasn't any urgent requirement but there was always have been a requirement to remove the fund for two reasons. One, because the balance has gotten to quite a large level, and secondary, because we're in voluntary winding up and we would have needed to remove the funds and close the account.” [174] This explanation is consistent with the Plaintiff's status as a company in liquidation, which needed to realise its assets for distribution to stakeholders. The evidence shows that prior to 2013, whenever the account balance exceeded a few million, the Plaintiff would withdraw the entire funds. The absence of urgent need does not negate the existence of a plan to withdraw the funds, nor does it constitute contributory negligence. [175] Regarding the alleged delays and incomplete documentation during the due diligence process, I find that the contemporaneous documents demonstrate that the Plaintiff responded to the Defendant's requests and provided documentation as requested. PW2's testimony clarifies several points that were raised during cross-examination: a) Regarding passport copies (Notes of Proceedings, page 167, line 30): It was not standard practice to S/N Ot2gjGiO7ESo9ejdkBUgmQ send passport copies for all 35 authorised signatories, but only for those with whom the bank would actually deal. b) Regarding the Drewson reference (Notes of Proceedings, page 175, line 7): The document was clearly headed “Pax Investments,” referenced the the Plaintiff’s Bank Account number, and was approved as the authorised signatory list for the Plaintiff despite the typographical error. c) Regarding corporate directors (Notes of Proceedings, page 175, line 27): Documentation clearly showing Cacique and Damor as directors was provided throughout the communications. [176] Most importantly, the Defendant's own witness, DW2, admitted during cross-examination that the Plaintiff had “responded and provided the information requested by Angela via emails” (Notes of Proceedings, page 272, line 9) and that the delays by Angela were “not normal” for the bank (Notes of Proceedings, page 273, line 3). These admissions by the Defendant's own witness significantly undermine its contention that the Plaintiff was contributorily negligent in the reactivation process. [177] DW2 further admitted that the normal response time should be “within seven working days” (Notes of Proceedings, page 273, line 22) and that the standard time to unfreeze an S/N Ot2gjGiO7ESo9ejdkBUgmQ account after receiving requested information is “four to five days” (Notes of Proceedings, page 273, line 29). These standards were clearly not met by the Defendant, as evidenced by the prolonged periods of non-response documented in the email exchanges. [178] The Defendant's argument that the Plaintiff's lack of urgency to withdraw funds contributes to its own loss fails for another reason: it ignores the causal link between the Defendant's breaches and the loss. Had the Defendant properly handled the due diligence process according to its own timeline standards, the Bank Account would have been unfrozen years before the garnishee proceedings began. The Defendant cannot benefit from its own breach by arguing that the Plaintiff should have pushed harder to overcome the Defendant's unreasonable delays. [179] With respect to the garnishee proceedings, I find that the Plaintiff acted reasonably upon receiving the Defendant's notification letter dated 27.12.2016. The Plaintiff promptly sought clarification on 9.1.2017, but received no response from the Defendant until 8.2.2017, by which time the funds had already been transferred out on 18.1.2017. The confusion created by the Defendant's use of the term “obliged to freeze” rather than “attachment” in its notification letter, and the absence of a contact person in the letter, prevented the Plaintiff from obtaining timely clarification. In these circumstances, the Plaintiff cannot be held contributorily negligent. S/N Ot2gjGiO7ESo9ejdkBUgmQ [180] In conclusion, I find that the Plaintiff took reasonable steps to mitigate its losses in the circumstances and was not contributorily negligent. The Defendant has failed to discharge its burden of proving that the Plaintiff acted unreasonably. Accordingly, the Plaintiff is entitled to recover its losses without reduction for failure to mitigate or contributory negligence. Damages [181] I now turn to the question of damages. The Plaintiff claims a total sum of RM8,127,746.70, comprising: a) RM6,588,605.74 as the principal sum fraudulently removed from its Bank Account; b) RM1,000,000.00 as general damages for breach of contract and negligence; and c) RM539,140.96 as special damages for various expenses incurred. [182] The Plaintiff also seeks interest at 5% per annum on the total sum of RM7,127,746.70 commencing from 15.2.2017, and costs on a solicitor-client basis. [183] The Defendant contends that the Plaintiff is not entitled to the damages sought. It relies on Clause 10.1 of the Standard Terms in the Defendant's T&C, headed “Indemnity S/N Ot2gjGiO7ESo9ejdkBUgmQ and Limitation of Liability,” which provides that the bank is not liable for any loss suffered by the customer in connection with services, acts, or omissions, and that it “exclude[s] any liability for indirect or consequential losses or loss of profit whether or not they were foreseeable or likely to occur.” The Defendant also argues that the Plaintiff is not entitled to recover legal fees as special damages in light of Golden Star & Ors v Ling Peek Hoe & Anor and another appeal [2024] 4 MLJ 749 (FC), and that costs should not be awarded on a solicitor-client basis. [184] With respect to the principal sum of RM6,588,605.74, I find no basis to deny the Plaintiff recovery of this amount. This sum represents monies directly lost by the Plaintiff as a result of the Defendant's breaches of contract and negligence, as established in the preceding sections of this judgment. The funds were in the Plaintiff's Bank Account and were wrongfully released by the Defendant to a third party through the fraudulent garnishee proceedings. The evidence demonstrates that but for the Defendant's failure to reactivate the Bank Account when it should have and its mishandling of the garnishee proceedings, the Plaintiff would not have suffered this loss. [185] I reject the Defendant's attempt to rely on Clause 10.1 of the Standard Terms to exclude liability for this loss. This clause purports to exclude liability for losses arising from the bank's acts or omissions, with a limited exception for “direct loss caused by any fraud, gross negligence or wilful S/N Ot2gjGiO7ESo9ejdkBUgmQ misconduct.” Such a clause, to the extent it seeks to exclude liability for the bank's negligence in its core function of safekeeping customer deposits, is contrary to public policy and unenforceable. [186] The Federal Court in CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 MLJ 1 provides instructive guidance on exclusion clauses in banking agreements. In that case, the plaintiffs obtained a term loan from CIMB Bank to finance a property purchase. The bank was obligated to make progressive payments directly to the developer but failed to disburse RM25,557.12 despite receiving the invoice and architect's certificate. After approximately one year of non-payment due to the bank's internal failures to conduct a site visit inspection, the sale and purchase agreement was terminated. [187] The issue before the Federal Court was whether Clause 12 of the loan agreement—which excluded liability for “loss of income or profit or savings, or any indirect, incidental, consequential, exemplary, punitive or special damages”— was void under Section 29 of the Contracts Act 1950. The court held that the clause absolutely restricted the plaintiffs from enforcing their rights and was therefore void, observing that such clauses “may typically be found in most banking agreements” but noting that allowing such a clause would make it “an exercise in futility for the plaintiffs to file any suit.” I find that these principles apply with equal force in the present case. The clause is unreasonable as it seeks to S/N Ot2gjGiO7ESo9ejdkBUgmQ absolve the Defendant from liability for negligence in its core banking functions and is inconsistent with Section 74 of the Contracts Act 1950. A contractual term that attempts to exclude liability wholly must be null and void where it is contrary to public policy or defeats the fundamental nature of the contract. [188] I find that the principles in CIMB Bank Bhd v Anthony Lawrence Bourke & Anor apply with equal force in the present case. The clause is unreasonable as it effectively seeks to absolve the Defendant from liability for negligence in its core banking functions. Furthermore, this clause is inconsistent with S. 74 of the Contracts Act 1950, which provides that “when a contract has been broken, the party who suffers by the breach is entitled to receive... compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach.” As the Plaintiff correctly submits, a contractual term that attempts to exclude liability wholly must be null and void in law where it is contrary to public policy or would defeat the fundamental nature of the contract entered into. [189] Turning to the claim for general damages in the sum of RM1,000,000.00, I am not persuaded that the Plaintiff is entitled to recover this amount. The Plaintiff has failed to produce sufficient evidence to justify both the fact and quantum of damages claimed. The Court of Appeal in Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 2 S/N Ot2gjGiO7ESo9ejdkBUgmQ MLJ 229 held that failure to produce documents to substantiate a claim would prove to be a party's undoing. Similarly, in Bekalan Sains P & C Sdn Bhd v Bank Bumiputra Malaysia Bhd [2011] 5 MLJ 1, the Court of Appeal affirmed that a claimant “in order to justify an award of substantial damages he must satisfy the court as to the fact of damage and as to its quantum.” [190] In the present case, the Plaintiff relies primarily on paragraph 149(c) of PW1's witness statement as the basis for its claim of RM1,000,000.00 as general damages. PW1 cites costs incurred for travel, investigations, legal advice, and meetings. However, these are precisely the expenses that the Plaintiff has claimed as special damages. Allowing recovery under both heads would amount to double recovery, which the law does not permit. As noted in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 (English CA), “double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage.” [191] Furthermore, in Ang Beng Choo v RHB Insurance Berhad [2013] CLJU 382, Lee Swee Seng JC (as his Lordship then was) held that generally, damages cannot be awarded for “vexation or anxiety or aggravation or similar states of mind” resulting from a breach of contract. The only exception is where the very object of the contract is to “provide pleasure, relaxation, peace of mind or freedom from molestation.” The court noted: “Contract-breaking is treated as an incident of S/N Ot2gjGiO7ESo9ejdkBUgmQ commercial life which players in the game are expected to meet with mental fortitude.” The banking contract between the Plaintiff and the Defendant does not fall within this exceptional category. [192] The Plaintiff has sought to rely on Top-A Plastics Sdn Bhd & Ors v Bumiputra Commerce Bank Bhd [supra] and the subsequent appellate decision in Bumiputra-Commerce Bank Bhd v Top-A Plastic Sdn Bhd. However, I find these cases distinguishable from the present matter. In Top-A Plastics, the bank had wrongfully frozen all accounts of the plaintiff (including a current account, a term loan facility account, and 11 fixed deposit accounts) pursuant to two garnishee orders, but only issued a letter 8 days later informing the plaintiff that it had attached a sum of RM40,000 to satisfy both garnishee orders. As a result, 12 cheques issued by the plaintiff were dishonoured, 2 cheques issued to EPF were dishonoured resulting in penalties, and the autopay system for payment of salaries was disrupted. The damages awarded were to compensate for these tangible losses, including injury to the plaintiff's commercial credit. [193] In the present case, there is no evidence of any dishonoured cheques, penalties imposed by third parties, or disruption to the Plaintiff's business operations. There is also no evidence of injury to the Plaintiff's credit. The principle applied in Top-A Plastics that substantial damages may be awarded without proof of actual damages in cases S/N Ot2gjGiO7ESo9ejdkBUgmQ of wrongful dishonouring of a trader's cheque is therefore inapplicable to the present case. Accordingly, I decline to award the sum of RM1,000,000.00 as general damages. [194] With respect to the claim for special damages in the sum of RM539,140.96, which comprises legal fees incurred by the Plaintiff's Jersey lawyers (RM218,422.60), legal fees incurred by the Plaintiff's Malaysian lawyers (RM232,369.81), and traveling expenses (RM88,348.54), I find that these expenses are partially recoverable. [195] The Defendant relies on the Federal Court decision in Golden Star & Ors v Ling Peek Hoe, which held that “costs including legal costs are not recoverable as special damages in the same proceedings between the same parties.” However, this principle does not bar the recovery of legal costs incurred in previous proceedings as special damages in a subsequent action. [196] The Plaintiff is not claiming the legal costs of this action as special damages. Rather, it is claiming legal fees incurred in previous actions — specifically, the proceedings to set aside the judgment in default and the garnishee orders, and to reinstate the dissolved company ABK. These were necessary preliminary steps before the Plaintiff could commence the present action against the Defendant. These expenses are, therefore, direct consequences of the Defendant's breaches and are properly recoverable as special damages. S/N Ot2gjGiO7ESo9ejdkBUgmQ [197] With respect to the legal fees incurred by the Plaintiff's Jersey lawyers, Messrs Mourant Ozanne, in the sum of RM218,422.60, I find these to be too remote and not reasonably foreseeable as a consequence of the Defendant's breaches. The evidence reveals that the Plaintiff engaged Jersey lawyers to advise on Jersey law matters, not Malaysian law matters, which is evident from PW1's testimony under cross-examination at page 62, lines 18-22 of the Notes of Proceedings. The Plaintiff had also engaged Malaysian lawyers, Messrs Azmi Fadzly Maha & Sim, around the same time to advise on Malaysian law matters. [198] The engagement of Jersey lawyers was neither necessary nor reasonably foreseeable by the Defendant in a dispute concerning a Malaysian bank account and Malaysian court proceedings. Additionally, I note that the underlying documents adduced by the Plaintiff to prove the legal fees incurred by Messrs Mourant Ozanne contain references to “Drewson Investments,” which is not related to the present case. These include the letter from Messrs Mourant Ozanne dated 14.3.2024 (Bundle B6, page 1066), the email dated 13.3.2024 (Bundle B6, page 1067), and multiple invoices (Bundle B6, page 1069-1101). This raises concerns about the relevance and accuracy of the claimed fees. Accordingly, I decline to award the sum of RM218,422.60 for legal fees incurred by the Plaintiff's Jersey lawyers. S/N Ot2gjGiO7ESo9ejdkBUgmQ [199] However, I find that the legal fees incurred by the Plaintiff's Malaysian lawyers, Messrs Azmi Fadzly Maha & Sim, in the sum of RM232,369.81, were necessary to investigate the fraud, to set aside the fraudulent judgment and garnishee orders, and to take the various preliminary steps required before the present action could be commenced. These expenses are directly attributable to the Defendant's breaches and are properly recoverable as special damages. [200] As for the traveling expenses of RM88,348.54, I find that these were incurred by the Plaintiff's representatives for travel between Jersey and Malaysia to attend meetings, conduct investigations, and take necessary steps to address the consequences of the Defendant's breaches. These expenses are directly attributable to the Defendant's breaches and are recoverable as special damages. [201] The Defendant seeks to rely on Clause 10.1 of the Standard Terms to exclude liability for the traveling expenses, arguing that these are “indirect” losses. For the reasons already stated in relation to the principal sum, I find this clause to be unreasonable and unenforceable to the extent it seeks to exclude liability for losses directly attributable to the Defendant's negligence in its core banking functions. These traveling expenses are not “indirect” losses but are direct consequences of the Defendant's breaches, necessary for the Plaintiff to address the situation created by those breaches. S/N Ot2gjGiO7ESo9ejdkBUgmQ [202] The Plaintiff also seeks interest at 5% per annum on the sum of RM7,127,746.70 commencing from 15.2.2017. Given my findings on the various heads of damages, I award interest at 5% per annum on the sum of RM6,909,323.09 (comprising the principal sum of RM6,588,605.74, legal fees incurred by the Plaintiff's Malaysian lawyers of RM232,369.81, and traveling expenses of RM88,348.54) commencing from 15.2.2017 until full settlement. DETERMINATION OF ISSUES TO BE TRIED [203] Having carefully considered the evidence, submissions, and applicable law as set out in the preceding analysis, I now address each issue to be tried and state my determinations. Agreed Issues to be Tried Issue 1: Whether the Defendant committed a breach of contract regarding the release of RM6,588,605.74 specifically: a) Clause 3.1(a) Standard Terms - duty to exercise reasonable care and skill b) Clause 10 Account Terms - continuing to freeze the Bank Account c) Clause 3.1(c) Standard Terms - duty to re-establish channels S/N Ot2gjGiO7ESo9ejdkBUgmQ [204] This issue is answered in the affirmative on all three sub-issues. a) The Defendant breached Clause 3.1(a) of the Standard Terms through its mishandling of the due diligence process, characterized by undue delays far exceeding its own standard timelines of 3-5 days, failure to maintain records, and poor communication. b) The Defendant breached Clause 10 by continuing to freeze the Bank Account despite Hafiz's confirmation in July 2016 that reactivation would proceed. c) The Defendant breached Clause 3.1(c) by failing to use reasonable endeavours to reactivate the Bank Account despite repeated requests and compliance with documentation requirements. Issue 2: Whether the Defendant failed to exercise reasonable care and skill in relation to the Plaintiff’s Bank Account, particularly: a) Failing to act diligently to unfreeze/reactivate the Bank Account b) Delaying notification of garnishee proceedings c) Failing to reply/provide updates about the Bank Account status S/N Ot2gjGiO7ESo9ejdkBUgmQ [205] This issue is answered in the affirmative on all three sub-issues: a) Sub-issue (a): The Defendant failed to act diligently, with Angela's complete silence to four email chasers, failure to reactivate after Hafiz's July 2016 confirmation, and DW2's admission that delays were “not normal.” b) Sub-issue (b): The notification dated 27.12.2016 was materially deficient, containing incorrect dates, confusing terminology (“obliged to freeze” rather than “attachment”), and no contact details. c) Sub-issue (c): Multiple failures to respond, including no response to urgent clarification request dated 9.1.2017 until 8.2.2017, well after funds were transferred. Issue 3: Whether the Defendant's legal obligations and duties are limited to those expressly enumerated in the Defendant’s T&C [206] This issue is answered in the negative: The Defendant's legal obligations and duties are not limited to those expressly enumerated in the Defendant’s T&C. [207] While the contractual relationship is governed by the T&C, certain terms are necessarily implied to give business S/N Ot2gjGiO7ESo9ejdkBUgmQ efficacy to the contract, including duties to respond to inquiries promptly and to reactivate accounts with clear specifications. Issue 4: In relation to the Plaintiff’s Bank Account: a) Was there an implied contract and did the Defendant breach it? b) Does the Defendant owe common law duty of care, and was it breached? c) Does the Defendant owe a Quincecare duty and was it breached? [208] Sub-issue (a) is answered in the affirmative: There an implied contract and the Defendant breached it. Implied terms requiring prompt responses, prompt reactivation with clear specifications, and safeguarding of deposits are necessary for business efficacy. The Defendant breached these through its dilatory handling and poor communication. [209] Sub-issue (b) is answered in the affirmative. The Defendant owes a common law duty of care to its customers. The court has held that its findings on the Defendant's liability rest on the contractual duty to exercise reasonable care and skill, the common law duty of care owed by banks to their customers, and the specific obligations arising in the context of garnishee proceedings. The court also rejected the S/N Ot2gjGiO7ESo9ejdkBUgmQ Defendant's “sophisticated customer” argument, holding that even for sophisticated customers, the duty to exercise reasonable care and skill in basic banking services involving safekeeping of deposits remains. This common law duty was breached through mishandling of both the Bank Account reactivation and garnishee proceedings. [210] For sub-issue (c), the court finds that conventional Quincecare duty does not directly apply to compliance with court orders. However, the underlying principle that banks should guard against fraud remains relevant. Critically, the other established duties are sufficient for liability without extending Quincecare Issue 5: Whether the Defendant acted negligently in relation to garnishee proceedings [211] This issue is answered in the affirmative: The Defendant acted negligently in relation to garnishee proceedings. [212] The Defendant acted negligently through: deficient notification with incorrect date and confusing terminology; failure to respond to urgent clarification request; failure to dispute liability under Order 49, Rule 5 ROC 2012 despite frozen account status; and DW1's lack of knowledge that account was frozen. Several unusual circumstances warranted greater scrutiny. S/N Ot2gjGiO7ESo9ejdkBUgmQ Issue 6: Whether the Defendant was negligent in oversight and handling of garnishment proceedings, enabling fraud to occur and/or disabling the Plaintiff from counteracting the fraud [213] This issue is answered in the affirmative: The Defendant was negligent in oversight and handling of garnishment proceedings, enabling fraud to occur and/or disabling the Plaintiff from counteracting the fraud. [214] The Defendant's negligence both enabled the fraud (funds remained in the Bank Account due to failure to reactivate despite sufficient documentation and disabled the Plaintiff from counteracting it (deficient notification, confusing terminology, failure to respond to clarification requests, paragraphs. The Defendant also failed to dispute liability despite frozen account not constituting “debt due.” Issue 7: If breach/negligence is found, whether the Plaintiff is entitled to reliefs: a) Whether the Plaintiff suffered losses claimed b) Whether losses are excluded by Clause 10.1 of Standard Terms [215] For sub-issue (a), the court finds partially in the affirmative. The Plaintiff is entitled to recover: (i) RM6,588,605.74 principal sum; (ii) RM232,369.81 Malaysian legal fees for S/N Ot2gjGiO7ESo9ejdkBUgmQ setting aside fraudulent orders; and (iii) RM88,348.54 traveling expenses. The Plaintiff is not entitled to: (i) RM1,000,000.00 general damages as there is insufficient evidence and double recovery is impermissible; (ii) RM218,422.60 Jersey legal fees as this is too remote and not reasonably foreseeable. [216] Sub-issue (b) is answered in the negative. Clause 10.1 Account Terms does not exclude liability for the awarded losses. The clause is unreasonable and unenforceable as it seeks to exclude liability for negligence in core banking functions, contrary to public policy per CIMB Bank Bhd v Anthony Lawrence Bourke. Issue 8: Whether the Defendant is contributorily negligent, and if so, whether damages should be reduced [217] There is not determination of this issue as the court found the Defendant fully negligence. [218] Further is no contributory negligence of the Plaintiff. The Plaintiff responded to requests and provided documentation; DW2 admitted the Plaintiff responded and that bank delays were “not normal.” PW2's clarification distinguished “urgency” from “plan” to withdraw funds as part of liquidation. The Plaintiff acted reasonably regarding garnishee proceedings, promptly seeking clarification but receiving no response until after transfer. Delays in legal S/N Ot2gjGiO7ESo9ejdkBUgmQ action were reasonable given complex cross-jurisdictional requirements and procedural hurdles. Plaintiff’s Issues to be Tried Issue 9: Whether the existence of the Garnishee Orders is a defence to any breach of contract and/or negligence [219] This issue is answered in the negative: The existence of the Garnishee Orders is not a defence to any breach of contract and/or negligence. [220] The Garnishee Orders do not provide a defence. The Defendant's primary breaches occurred in mishandling the account reactivation between 2014-2016, well before the orders were issued. Even regarding the garnishee proceedings, liability stems from negligent handling, not mere compliance. Frozen funds did not constitute “debt due or accruing due” and the Defendant could have disputed liability under Order 49, Rule 5 ROC 2012. Order 49, Rule 8 ROC 2012 cannot shield the Defendant from liability for prior breaches that enabled the fraud, per Section 44 Evidence Act 1950 and Order 92, Rule 4 ROC 2012. Defendant's Issues to be Tried Issue 10: If issues 2(a) to 2(c) are answered affirmatively, whether such failure/delay constitutes failure to exercise reasonable care and skill. S/N Ot2gjGiO7ESo9ejdkBUgmQ [221] This issue is answered in the affirmative. Having determined Issues 2(a), 2(b), and 2(c) in favour of the Plaintiff, these failures and delays clearly constitute failure to exercise reasonable care and skill. [222] The delays far exceeded the bank's own standards (3-5 days per DW2 and DW4), the Bank Account remained frozen for approximately 2 years and 9 months, and the cumulative failures in communication, record-keeping, and handling of garnishee proceedings fall well below the standard required by Clause 3.1(a) of the Standard terms and the Defendant’s duty to exercise reasonable care and skill. Issue 11: Whether the Defendant was under legal obligation to freeze RM6,588,605.74 in accordance with the Garnishee Order to Show Cause (30.11.2016) [223] This issue is answered in the negative: The Defendant was not under legal obligation to freeze RM6,588,605.74 in accordance with the Garnishee Order to Show Cause. The court held that the frozen funds did not constitute a “debt due or accruing due” that could be attached through garnishee proceedings, since the Plaintiff was contractually unable to access the funds until due diligence was completed. The Defendant breached its duty by failing to dispute liability under Order 49, Rule 5 ROC 2012 and acted negligently by releasing the funds without investigating whether there was actually money due, as the S/N Ot2gjGiO7ESo9ejdkBUgmQ officer handling the garnishee proceedings had no knowledge the Bank Account was frozen. Issue 12: Whether the Defendant was under legal obligation to pay RM6,588,605.74 to Messrs ZB in accordance with the Garnishee Order Absolute (9.1.2017) [224] This issue is answered in the negative: The Defendant was not under legal obligation to pay RM6,588,605.74 to Messrs ZB because the frozen account meant the funds did not constitute a “debt due or accruing due” that could be attached through garnishee proceedings. The Defendant's own witness admitted that amounts in the frozen account were not due or payable to the Plaintiff until due diligence was completed and per Malaysian International Trading Corp Sdn Bhd v RHB Bank Bhd and Badeley v Consolidated Bank, a creditor can only attach property the debtor could properly deal with. The court found the Defendant breached its duty by failing to dispute liability under Order 49, Rule 5 of the ROC 2012, particularly since the employee handling the garnishee proceedings had no knowledge the Bank Account was frozen and made no investigation into whether there was money actually due. Issue 13: If issues 11 and 12 are answered affirmatively, whether the Defendant's compliance with the Garnishee Orders constitutes breach of contract and/or negligence S/N Ot2gjGiO7ESo9ejdkBUgmQ [225] There is no determination of this issue as the court answered issues 11 and 12 in the negative. Issue 14: Regarding alleged losses: a) Whether there is a causal link between the breach/failure and the losses b) Whether the losses were foreseeable/within parties' contemplation c) Whether the losses are too remote [226] Sub-issue (a) is answered in the affirmative: There is a causal link between the breach/failure and the losses. Applying the “but-for” test from Ngan Siong Hing v RHB Bank Bhd, but for the Defendant's failure to reactivate the Bank Account, funds would have been withdrawn before garnishee proceedings. PW2 testified unequivocally: “If we'd have unfrozen the account, we would have withdrawn the funds because Pax was in liquidation.” Had the account been reactivated per standard timeline after July 2016, Plaintiff would have had ample time to withdraw before late 2016 proceedings. [227] Sub-issue (b) is answered partially in the affirmative: The losses were foreseeable/within parties' contemplation The losses were reasonably foreseeable - it is foreseeable that failing to reactivate an account and releasing funds through S/N Ot2gjGiO7ESo9ejdkBUgmQ inadequately-scrutinised proceedings would result in customer losing funds. The principal sum, Malaysian legal fees to set aside fraudulent orders, and traveling expenses between Jersey and Malaysia were all reasonably foreseeable consequences per Hadley v Baxendale principles [Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145; (1854) 23 LJ Ex 179; (1854) 18 Jur 358]. However, Jersey legal fees were not reasonably foreseeable when Malaysian lawyers were concurrently engaged. [228] Sub-issue (c) is answered partially in the affirmative: Some of the losses are too remote. The principal sum, Malaysian legal fees and traveling expenses are not too remote and satisfy the Hadley v Baxendale test. However, Jersey legal fees (RM218,422.60) are too remote - engagement of Jersey lawyers for Jersey law advice when Malaysian lawyers handled all material aspects was neither necessary nor reasonably foreseeable. COSTS [229] After delivering my judgment above on 14.4.2025 in which I found in favour of the Plaintiff against the Defendant for breaches of contract and negligence relating to the Defendant's handling of the Plaintiff's Bank Account and subsequent garnishee, I then directed parties to submit further on the issue of costs on 28.4.2025. S/N Ot2gjGiO7ESo9ejdkBUgmQ [230] The further determination concerns the scale upon which costs should be awarded. The Plaintiff seeks costs on an indemnity basis (also referred to as solicitor-client basis), while the Defendant contends that costs should be awarded on the standard party-and-party basis and at a modest quantum. [231] For the determination on costs, the Plaintiff produced a Bundle of Documents (For Costs) showing that it has incurred legal fees of RM473,900.00, disbursements of RM784.00, and reimbursements of RM10,390.38 in the pursuit of this action. Respective Parties' Submissions on Costs [232] The Plaintiff submits that it is entitled to costs on an indemnity basis, contending that the circumstances of this case take it “out of the norm” and justify the award of indemnity costs. The Plaintiff argues that this case involves not merely a simple breach of contract or negligence but a serious failure on the part of the Defendant to safeguard the Plaintiff's funds, which ultimately facilitated a fraud by third parties. [233] The Plaintiff relies on the Federal Court decision in Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181, where the court held that the discretion to award costs on an indemnity basis is “unfettered” and only requires that it be an “appropriate case warranting an award on that S/N Ot2gjGiO7ESo9ejdkBUgmQ basis.” The Plaintiff also cites Fiona Trust & Holding Corporate and Ors v Yuri Privalov and Ors [2011] EWHC 664 (Comm) for the proposition that conduct need not attract moral condemnation, but merely unreasonableness, to justify indemnity costs. [234] The Plaintiff argues that the Defendant's conduct in (i) preventing access to the Plaintiff's Bank Account for more than two years, (ii) mishandling the garnishee proceedings, and (iii) raising defences during the litigation that contradicted contemporaneous evidence and the Defendant's own witnesses' testimony, collectively take this case “out of the norm” and justify costs on an indemnity basis. [235] The Defendant submits that costs should be awarded on the standard basis and in a modest amount of RM50,000.00. The Defendant argues that since the Plaintiff was only partially successful in its claims (with claims for general damages of RM1,000,000.00 and Jersey lawyers' costs of RM218,422.60 being dismissed), the Plaintiff should only be awarded part of the costs, not more than 85%. [236] The Defendant contends that costs on an indemnity basis are exceptional and should only be granted in extraordinary circumstances, which are absent in this case. The Defendant argues that this is simply a “run-of-the-mill” S/N Ot2gjGiO7ESo9ejdkBUgmQ negligence claim against a bank, with nothing out of the ordinary that would justify indemnity costs. [237] The Defendant further submits that the Plaintiff's claim for legal costs calculated on a time-cost basis should be rejected, as this is contrary to the standard basis of assessment under Order 59, rule 16(3) of the ROC 2012. The Defendant argues that the legal costs awarded should be commensurate with the complexity of the case, which it contends is not particularly complex compared to other cases where more modest costs were awarded. Analysis and Findings of the Court Whether the Plaintiff is Entitled to Full Costs Given Partial Success [238] The Plaintiff contends that it succeeded in its causes of action for breach of contract and negligence, and that the court's non-allowance of part of its claim (Jersey lawyers' costs and general damages) was not due to a failure to prove the underlying cause of action but rather due to insufficient evidence for general damages and the Jersey lawyers' costs not being within reasonable contemplation of the Defendant. [239] The Defendant submits that since the Plaintiff was only partially successful in its claims, with RM1,218,422.60 of its claims (comprising RM1,000,000.00 for general damages S/N Ot2gjGiO7ESo9ejdkBUgmQ and RM218,422.60 for Jersey lawyers' costs) being dismissed, the Plaintiff should only be allowed to recover part of the costs, not more than 85%. [240] It is trite law that where a party is only partially successful in the claim, the party is only entitled to part of the costs. In Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v Poh Swee Siang [1987] 2 MLJ 611, the Supreme Court varied the order of the learned judge with an order that the respondent be awarded only half of his costs in the court below because the respondent was partially successful in his claims. [241] Similarly, in Management Corporation Strata Title No 586 v Menezes [1992] 1 SLR 807, the High Court held that since the plaintiff was partially successful only in respect of part of his claims, he should therefore be entitled to part of the costs in the court below, and the district judge ought to have made an apportionment as to costs. [242] In the present case, while the Plaintiff succeeded in establishing liability for breach of contract and negligence, it failed to recover a significant portion of its claimed damages, namely the sum of RM1,218,422.60 (comprising RM1,000,000.00 for general damages and RM218,422.60 for Jersey lawyers' costs). This represents approximately 15% of the total claim. S/N Ot2gjGiO7ESo9ejdkBUgmQ [243] I cannot accept the Plaintiff's argument that the non-allowance of part of its claim was merely due to insufficient evidence rather than a failure of the cause of action. The burden was on the Plaintiff to prove both liability and the quantum of damages claimed. While the Plaintiff succeeded in establishing liability, it failed to discharge its burden of proving the quantum of damages in respect of these two heads. [244] In light of the Plaintiff's partial success, I find that the Plaintiff is entitled to 85% of the costs that would otherwise be awarded. Whether Costs Should Be Awarded on an Indemnity Basis [245] The Plaintiff argues that costs should be awarded on an indemnity basis because the circumstances of this case take it “out of the norm.” The Plaintiff contends that this is not merely a simple breach of contract or negligence case, but one where the Defendant's serious failures facilitated a fraud by third parties. The Plaintiff points to the Defendant's conduct in preventing access to the Plaintiff's Bank Account for more than two years, mishandling the garnishee proceedings, and raising defences during litigation that contradicted contemporaneous evidence and the Defendant's own witnesses' testimony. S/N Ot2gjGiO7ESo9ejdkBUgmQ [246] The Plaintiff relies on Takako Sakao, where the Federal Court held that the discretion to award costs on an indemnity basis is “unfettered” and only requires that it be an “appropriate case warranting an award on that basis.” [247] The Defendant contends that costs on an indemnity basis are exceptional and should only be granted in extraordinary circumstances, which are absent in this case. The Defendant argues that this is a “run-of-the-mill” negligence claim against a bank, with nothing out of the ordinary that would justify indemnity costs. [248] The Defendant relies on Golden Star & Ors v Ling Peek Hoe & Anor and another appeal [supra], where the Federal Court affirmed the Singapore Court of Appeal's decision in Maryani Sadeli v Arjun Permanand Samtani and another and other appeals [2015] 1 SLR 496, which held that “a full indemnity for legal costs is only recoverable by parties to litigation in exceptional circumstances.” [249] It is well-established that under Order 59, rule 16 of the ROC 2012, the general rule is that costs should be awarded on a standard basis. Costs on an indemnity basis are an exception to this general rule and are only awarded in exceptional circumstances. [250] In Golden Star, the Federal Court endorsed the Singapore Court of Appeal's position that “a full indemnity for legal costs is only recoverable by parties to litigation in S/N Ot2gjGiO7ESo9ejdkBUgmQ exceptional circumstances.” The court went on to state that “full recovery of legal costs by the successful party is the exception rather than the norm” and that this is “a manifestation of the law's policy of enhancing access to justice for all.” [251] The Singapore Court of Appeal in Airtrust (Hong Kong) Ltd v Ph Hydraulics Engineering Pte Ltd [2016] 5 SLR 103 had set out categories of cases where costs on an indemnity basis might be awarded, including: a) where the action is brought in bad faith, as a means of oppression or for other improper purposes; b) where the action is speculative, hypothetical or clearly without basis; c) where a party’s conduct in the course of proceedings is dishonest, abusive or improper; and d) where the action amounts to wasteful or duplicative litigation or is otherwise an abuse of process. [252] None of these exceptional circumstances are present in this case. While I found that the Defendant had breached its contractual and tortious duties to the Plaintiff, and that these breaches had facilitated a fraud by third parties, this does not rise to the level of exceptional circumstances warranting indemnity costs. S/N Ot2gjGiO7ESo9ejdkBUgmQ [253] The Plaintiff's reliance on Takako Sakao must be considered in light of the more recent Federal Court decision in Golden Star, which provides more specific guidance on when indemnity costs should be awarded. While the discretion to award indemnity costs is indeed “unfettered,” it must be exercised judiciously and in accordance with established principles. [254] The Plaintiff also relies on Fiona Trust for the proposition that conduct need not attract moral condemnation, but merely unreasonableness, to justify indemnity costs. However, the Singapore Court of Appeal in Air Trust Hong Kong v PH Hydraulics has clarified that the “unreasonableness” required is not mere wrongness or being misguided in hindsight, but a high degree of unreasonableness. [255] In the present case, while I found that the Defendant had breached its duties to the Plaintiff, the Defendant's conduct does not reflect the high degree of unreasonableness required for indemnity costs. The Defendant was entitled to raise defences to the Plaintiff's claim, even if those defences were ultimately unsuccessful. The fact that the Defendant's witnesses at times contradicted the Defendant's position does not, in itself, warrant the imposition of indemnity costs. S/N Ot2gjGiO7ESo9ejdkBUgmQ [256] I am also guided by comparable Malaysian cases involving banks. In Astana International Sdn Bhd & Ors v RHB Bank Bhd & Ors [2012] 3 MLJ 758, the High Court found the bank guilty of “gross negligence” for making payment on forged documents, yet awarded costs of only RM70,000.00 on the standard basis. Similarly, in Leolaris (M) Sdn Bhd v Bumiputra Commerce Bank Berhad [2009] MLJU 854, the court allowed the plaintiff's claim against the bank for making payment based on forged cheques but awarded only RM50,000.00 as costs on the standard basis. [257] For these reasons, I find that this is not an exceptional case warranting costs on an indemnity basis. Costs will be awarded on the standard basis. Whether Time Costs of Solicitors Can Be Recoverable [258] The Plaintiff seeks to recover legal costs of RM473,900.00 calculated on the basis of the time costs incurred by the Plaintiff's solicitors. The Plaintiff contends that these costs were reasonably incurred and were necessary to pursue the claim. [259] The Defendant submits that the Plaintiff's claim for legal costs calculated on a time-cost basis should be rejected, as this is contrary to the standard basis of assessment under Order 59, rule 16(3) of the ROC 2012. The Defendant argues that this would give the Plaintiff an “unjustifiable windfall.” S/N Ot2gjGiO7ESo9ejdkBUgmQ [260] The Plaintiff's claim for legal costs calculated on a time-cost basis must be rejected. In Allan Lee Mason & Anor v Jeremy Keith Smeeton & Ors [2016] MLJU 1250, the High Court rejected the defendant's proposed quantum of costs for “getting up” based on the hourly rate of the defendants' lawyers, finding that this was “clearly contrary to” the standard basis embodied in Order 59, rule 16(3) of the ROC 2012 and would have given the defendants an “unjustifiable windfall.” [261] Similarly, in Merck Sharp & Dohme Corporation & Anor v Hovid Bhd [2022] MLJU 16 and Ooi Cheng Huat @ Ooi Peng Huat (suing in his own name and as the executor and trustee of the estate of Linda Patricia Lim Sooi Hong, deceased) & Ors v Sime Darby Property Bhd and other cases [2024] MLJU 83, the High Court rejected claims for solicitors' fees calculated based on “time costs.” [262] In the present case, the Plaintiff's claim for legal costs of RM473,900.00 calculated based on the time costs of the Plaintiff's solicitors cannot be allowed. Instead, costs must be assessed on the standard basis in accordance with Order 59, rule 16(3) of the ROC 2012, taking into account the relevant circumstances set out in Order 59, rule 16(1). Quantum of Costs on the Standard Basis [263] While the Plaintiff primarily sought costs on an indemnity basis, it also argued that the case was complex, involving S/N Ot2gjGiO7ESo9ejdkBUgmQ novel issues, a large number of documents, and significant time and labour expended by the solicitors. The Plaintiff pointed to the Defendant's conduct in raising defences that contradicted contemporaneous evidence and the Defendant's own witnesses' testimony, which required additional time and effort to address. [264] The Defendant argues that the legal costs that ought to be awarded to the Plaintiff should be on the low end of the scale given that: a) the Plaintiff's claim was only made against the Plaintiff as the sole defendant; b) the Plaintiff's claim was based on breach of contract and negligence only, with the legal principles being trite; c) there was only one interlocutory application, which the Plaintiff did not contest; d) there was only one novel issue, which was not material to the determination of the case; and e) the case involved seven witnesses, but the trial lasted for only 4 full days, with only 175 documents. S/N Ot2gjGiO7ESo9ejdkBUgmQ [265] In assessing the quantum of costs on the standard basis, I must have regard to all relevant circumstances as set out in Order 59, rule 16(1) of the ROC 2012, including: a) the complexity of the item or of the cause or matter and the difficulty or novelty of the questions involved; b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor or counsel; c) the number and importance of the documents; d) the place and circumstances in which the business involved is transacted; e) the importance of the cause or matter to the client; and f) where money or property is involved, its amount or value. [266] Having regard to these factors, I find that: a) While the case did involve questions of banking law, contractual obligations, and third-party fraud, the legal principles applicable to breach of contract and negligence are well-established, and the case was not exceptionally complex. S/N Ot2gjGiO7ESo9ejdkBUgmQ b) The case required some degree of skill and specialised knowledge in banking law, but did not involve any particularly novel or difficult legal questions. The issue of the Quincecare duty, which might have been novel, was not material to the determination of the case. c) The case involved 175 documents, which is not an unusually large number for commercial litigation. d) The case involved a foreign plaintiff, which added some complexity to the matter, but the litigation took place entirely in Malaysia. e) The matter was of significant importance to the Plaintiff, involving a substantial sum of money. f) The amount involved was substantial, with the Plaintiff ultimately recovering RM6,909,323.09. [267] I have also considered comparable cases involving banks where costs were awarded on the standard basis: a) In Astana International Sdn Bhd & Ors v RHB Bank Bhd & Ors [supra], the High Court found the bank guilty of “gross negligence” for making payment on forged documents and awarded costs of RM70,000.00. This case involved 9 witnesses and a principal judgment sum of around RM3.9 million. S/N Ot2gjGiO7ESo9ejdkBUgmQ b) In Leolaris (M) Sdn Bhd v Bumiputra Commerce Bank Berhad [supra], the court allowed the plaintiff's claim against the bank for making payment based on forged cheques and awarded RM50,000.00 as costs. This case involved 4 witnesses and a principal sum of RM1,091,921.78. c) In HSBC Bank Malaysia Berhad v Jejak Maju Resources Sdn Bhd [2015] MLJU 613, where a plaintiff bank successfully obtained a judgment for the principal sum of USD5,337,847.31 against the conspirators in a fraudulent scheme, the High Court awarded costs of RM90,000.00. This case, which the court described as “verily complex and complicated,” involved 20 witnesses and numerous interlocutory proceedings. [268] Upon careful consideration of the complexity and circumstances of this case, I find that it warrants a significantly higher costs award than those in Astana International and Leolaris. The present case involves a substantial sum of RM6,909,323.09, which considerably exceeds the amounts in those cases. While this sum is less than the USD5,337,847.31 (approximately RM25 million at current exchange rates) in HSBC Bank Malaysia Berhad v Jejak Maju Resources Sdn Bhd, it nonetheless represents a significant amount in dispute that required thorough preparation and presentation. While this case does not reach the level of complexity that would merit indemnity S/N Ot2gjGiO7ESo9ejdkBUgmQ costs, it undeniably presented substantial challenges that demanded considerable effort and expertise from counsel. [269] Several distinguishing factors justify a higher costs award: a) Cross-jurisdictional complexities: The Plaintiff is a foreign company in liquidation incorporated in Jersey, Channel Islands, with no physical presence in Malaysia. This necessitated extensive communication between jurisdictions and required counsel to navigate complex international banking and corporate regulations, as evident from the documented communications spanning several years. b) Extended timeline and documentary challenges: The case required a meticulous reconstruction of events spanning over 10 years (2011-2022), with evidence scattered across numerous communications, banking records, and legal documents. The solicitors had to conduct forensic documentary analysis to establish the chronology of events leading to the loss of funds. c) Technical banking issues: The case involved intricate banking procedures, account freezing mechanisms, due diligence protocols, and garnishee procedures. Counsel had to develop specialised knowledge in these areas to effectively present the case. S/N Ot2gjGiO7ESo9ejdkBUgmQ d) Complex legal issues: The case required addressing subtle and nuanced legal issues beyond standard negligence principles, including implied terms in banking contracts, the scope of a bank's duty in garnishee proceedings, the proper application of Order 49 of the ROC 2012, and the interpretation of exclusion clauses in banking contracts. e) Evidential challenges: The Defendant's acknowledged loss of records created significant hurdles in establishing the factual matrix, requiring counsel to undertake additional investigative work and present more comprehensive arguments to overcome these evidential gaps. f) Procedural history: While the trial itself lasted 4 days, this belies the extensive preparation required, including detailed analysis of witness testimony that often contradicted documentary evidence, requiring sophisticated cross-examination strategies. [270] The case of Allan Lee Mason provides useful guidance. There, the High Court awarded RM180,000 as “getting up” costs for reasons including: a) the claim involved multiple causes of action; b) the trial involved 6 witnesses over 8 days; S/N Ot2gjGiO7ESo9ejdkBUgmQ c) the case involved 339 documents spanning 1597 pages; d) the case was very important to the defendants; e) the claim was for approximately RM2.2 million; and f) lengthy written submissions were filed. [271] The present case is comparable in many respects: it involved complex causes of action, 7 witnesses, significant documentary evidence, was of vital importance to the Plaintiff (being a company in liquidation), and involved a much larger sum (over RM6.9 million). While our case involved fewer trial days, the preparation required was no less substantial given the technical and documentary complexity. [272] Taking all these factors into account, I find that costs of RM150,000.00 would be fair and reasonable in a case of this complexity if the Plaintiff had been wholly successful. This sum appropriately reflects the substantial work, expertise, and resources that were necessarily deployed in this litigation, while still remaining within the parameters of the standard basis of assessment. However, as I have found that the Plaintiff was only partially successful and is entitled to 85% of the costs, I order costs in the sum of RM127,500.00. S/N Ot2gjGiO7ESo9ejdkBUgmQ CONCLUSION AND ORDER [273] In conclusion, having carefully considered the evidence and submissions of both parties, I find on a balance of probabilities that the Defendant bank breached its contractual duty of care to the Plaintiff through its mishandling of the account reactivation process and its inadequate handling of the court proceedings that led to the release of the Plaintiff's funds. These breaches were causative of the Plaintiff's loss, and the Defendant's arguments on mitigation and contributory negligence are not sustainable on the facts. The Plaintiff has established its entitlement to damages representing the principal sum lost, along with necessary expenses incurred in addressing the consequences of the Defendant's breaches. Accordingly, I award the Plaintiff the sum of RM6,909,323.09, comprising: a) RM6,588,605.74 as the principal sum; b) RM232,369.81 for legal fees incurred by the Plaintiff's Malaysian lawyers; and c) RM88,348.54 for traveling expenses. [274] I further order as follows: a) Interest at 5% per annum on the sums above commencing from 15.2.2017 until full settlement. S/N Ot2gjGiO7ESo9ejdkBUgmQ b) The Defendant shall pay the Plaintiff costs of RM1127,500.00 on a standard basis subject to the allocator fee. c) Interest at 5% per annum on the awarded costs commencing from 14.4.2017 until full settlement. 29 October 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Deepak Mahadevan with Wan Zafran Pawancheek, Taysher Nair and Jas Lim Fang Ni (Messrs Azmi Fadzly Maha & Sim) For the Defendant: Kwong Chiew Ee (Messrs Rahmat Lim & Partners)