Protasco Bhd v Tey Por Yee (W-02(IM)(NCC)-187-01/2017)

(a) Tey had brought the proposal for this transaction to Protasco through his vehicle Global Capital Limited;

(b) The President Director of PT ASU, one Tjoe, had acted at all times as a nominee of Tey and Ooi; he had taken instructions from them in respect of all matters pertaining to SPA 2;

(c) Tjoe had not received any of Protasco’s letters during the negotiations leading up to the execution of SPA 1 and SPA 2;

(d) Tey and Ooi were and remain the effective beneficial owners of PT ASU, PT Inovisi, Acclaim Investment Limited etc. Notwithstanding this they had not disclosed 8 their personal interests in PT ASI to Protasco as required by law;

(e) Tjoe had not received the letters issued or transmitted to him vide email because the email address given was the same as the address for another company known as Nextnation Communication Berhad where Tey and Ooi are the substantial shareholders;

(f) Tey and Ooi or through their agents had authored and forged the signatures of Tjoe on the PT ASU letters issued in reply to Protasco’s letters;

(g) The third party that had provided security for the repayment of the deposit of RM50 million was linked to another partner and associate of Tey, namely one Andrew See and his wife.

(h) See, Tey and Ooi are the partners of Global Capital Limited that had first introduced this transaction to Protasco;

(i) PT ASU, PT ASI, Acclaim and PT Inovisi are owned, related or the alter-ego of Tey and Ooi. [21] Premised on the foregoing, Protasco’s cause of action against Tey and Ooi is premised on deceit, fraud, conspiracy to defraud/injure, a contravention of sections 132 and 131 of the Companies Act 1965 (’CA’) and a breach of fiduciary duties. Protasco further pleads that as a consequence of the foregoing Protasco has suffered loss and damage in the sum of USD27 million. Accordingly it contends that SPA 2 between itself and PT ASU is null and void or illegal. A series of remedies is sought against Tey and Ooi in this respect namely that they are liable to: 9

(a) compensate Protasco in equity for the breach of fiduciary duties;

(b) account to Protasco for the monies misappropriated by them;

(c) account for secret profits held by them;

(d) hold all such monies as constructive trustees in favour of Protasco;

(e) reconstitute assets held on trust for Protasco. [22] In short to recompense Protasco for the USD27 million loss it has suffered as a consequence of their acts. [23] As against PT ASU Protasco’s claim is premised on conspiracy to injure/defraud and the relief claimed is:

(a) a declaration that all monies received by it through the defrauding of Protasco are held by it as a constructive trustee;

(b) damages for breach of contract;

(c) damages for conspiracy and fraud;

(d) declaration that SPA 1 and SPA 2 are null and void for breach of section 132 of the CA or breach of public policy;

(e) a payment of USD22 million. [24] It would appear from a reading of the statement of claim that the cause of action in breach of contract is secondary or ancillary to the primary claim of conspiracy to defraud. 10 [25] The Defence of Tey and Ooi states in summary that:

(a) The true picture is that the Executive Vice Chairman and Group Managing Director of Protasco who is also the largest shareholder, one Dato’ Sri Chong Ket Pen (‘Dato’ Chong’) was the one who entered into an investor agreement with Global Capital Limited in November

(b) The facts relating to Global Capital Limited through its affiliates and nominees procuring rights to develop and produce oil and gas in Aceh are then set out. Dato’ Chong and Global Capital intended to jointly develop the project and a master agreement was supposed to be entered into. In consideration of this, Dato’ Chong, it is contended, agreed to enter into the agreement for the acquisition of 27.11% of Protasco’s equity from other shareholders. To this end Global Capital acquired that percentage of shareholding for a total consideration of RM96 million vide the agreement of 26 November 2012. This sum was fully paid for.

(c) Therefore it was in furtherance of the investor agreement that Protasco and PT ASU entered into SPA 1, namely to enable Protasco to diversify its business into oil and gas in Indonesia vide related companies. 11

(d) SPA 1 was approved by Protasco’s board of directors vide a circular resolution. No project papers pertaining to SPA 1 were circulated for the Board’s consideration. Neither was there a briefing to the board nor a board of directors’ meeting relating to the decision by Dato’ Chong to enter into SPA 1.

(e) Neither was the investor agreement of 3 November 2012 disclosed to the Board of Protasco. As such it is contended by Tey and Ooi that it was Dato’ Chong who was in breach of his fiduciary duties in failing to disclose the terms of the investor agreement.

(f) Ooi further maintains that from his appointment as director on 10 December 2012 to payment of the deposit on 28 December 2012, there was no board meeting, nor documentation nor communication whereby he could have induced or caused the board of Protasco to enter into SPA 1 and make the payment of RM50 million. Any such representation or inducement, which resulted in Protasco entering into SPA 1, was perpetrated by Dato’ Chong or his son, Kenny Chong Ther Nen (‘Kenny’).

(g) As for the due diligence of SPA 1 and the negotiations and entry into SPA 2, the principal officers acting for and on behalf of Protasco were Dato’ Chong and Kenny. They therefore had full knowledge and had participated in the preparation of SPA

(h) Protasco was represented by a lawyer while PT ASU was not. Protasco also appointed several professional parties to conduct the due diligence. As such Tey and Ooi maintain that there could not have been inducement, misrepresentation, deception, cheating or fraud as contended by Protasco, which caused the payment of USD27 million to PT ASU under SPA 2.

(i) With respect to the tenure of the exploration and production of oil and gas Tey and Ooi contend that Protasco knew that the concession was only until 14 December 2014. SPA 2 reduced the purchase price to USD22 million but sought to extend the tenure by 10 years while knowing full well that Pertamina’s policy is to grant a contract for only 2 or 3 years.

(j) It is further contended that Protasco failed to reactivate the oil field or provide a business duration and drilling program for the oil field to facilitate any extension sought.

(k) Tey and Ooi maintain that the investigation conducted was a sham. At all material times Ooi states that the representatives of Protasco namely Dato’ Chong and Kenny were actively involved in the negotiation of SPA 1 and SPA 2 with PT ASU.

(l) Further there was no investigation report produced, no report of its findings to the Board of Directors nor any queries put to Tey and Ooi at all. 13

(m) The claim it is contended was filed at the behest of Dato’ Chong after a board meeting convened to ratify his unilateral action.

(n) Tey and Ooi’s ownership of shareholding in PT ASU, PT Inovisi and Acclaim is wholly denied. Instead they aver that it is Dato’ Chong and Kenny who enjoy an interest in PT Inovisi vide one R S Maha Niaga Sdn Bhd, an entity they control.

(o) They further aver that Dato’ Chong Kenny and senior management of Protasco and its subsidiaries have financially benefited through illegal financial gains from the agreement between Protasco and PT ASU. [26] In summary it is Tey and Ooi’s defence that the entire transaction between Protasco and PT ASU was undertaken at the behest of, and with the full knowledge and consent of Dato’ Chong and Kenny. [27] We are unable to consider precisely what issues fall for consideration in the arbitration, because arbitration proceedings have not been commenced notwithstanding the order of the Court of Appeal dated 25 March 2016. 14 The competing contentions [28] Learned counsel for Protasco and Ooi submitted at length before us on their competing contentions in relation to this issue. In summary for Protasco the contention is that:

(a) a stay of proceedings in relation to non-parties to an arbitration agreement pending the outcome of arbitration proceedings should only be granted in rare and compelling circumstances;

(b) Tey and Ooi not being parties to the arbitration agreement are not bound by any findings made in such arbitration proceedings. [29] This approach reflects the approach taken in the United Kingdom based on the common law premise that a plaintiff is entitled to choose its forum and proceed against a defendant as it thinks best and such a right is not to be derogated from save in rare and compelling circumstances. This approach is also adopted in New Zealand. [30] For Tey and Ooi it is contended that:

(a) The requirement to arbitrate between Protasco and PT ASU is mandatory given the existence of the arbitration clause, and thereby agreement, encapsulated in SPA 2;

(b) Any concurrent proceedings in court mirroring the arbitration proceedings will give rise to a real possibility of inconsistent findings or decisions in each of the fora. 15 [31] While this summary does little justice to the elaborate and comprehensive submissions put forward by learned counsel, it suffices as a bare outline. The law relating to whether the court proceedings by Protasco against Tey and Ooi should be stayed pending the resolution of the arbitration between Protasco and PT ASU [32] We have considered the authorities submitted by both parties. The law in relation to the issue of staying proceedings against non-parties pending arbitration is not in substance different in the Commonwealth jurisdictions. However the threshold to be applied in relation to the right of non-parties to proceed with their actions notwithstanding arbitration agreements, does vary. [33] In the United Kingdom the threshold that has to be reached to warrant the grant of a stay of proceedings against non-parties pending arbitration, was considered by Lord Bingham of Cornhill CJ in Reichhold Norway ASA and another v Goldman Sachs International [2000] 2 All ER 679 (’Reichhold Norway’). That standard was stated to be:

(a) Invoked in “rare and compelling circumstances”;

(b) There ought to be very strong reasons for granting such a stay;

(c) The benefits likely to result from granting such a stay of proceedings must clearly outweigh any disadvantage to the non-party. 16 [34] (See also Mabey and Johnson v Danos and others [2007] All ER (D) 177, where the English High Court refused a stay against a non-party to the arbitration. There the allegations were fraud and conspiracy which bear a passing resemblance to the instant appeals. There the court highlighted the importance of hearing the “human witnesses” in a public forum in relation to the allegations of conspiracy and fraud. Another key factor that influenced the judge was that the non-party seeking the stay appeared to be taking advantage of the stay granted to the arbitrating parties to suggest that he would be unfairly prejudiced. The court rejected this contention. In the course of exercising its discretion the learned Judge found that the facts did not fall within the “rare and compelling circumstances” envisaged in Reichhold Norway). [35] This threshold of “rare and compelling circumstances” was applied by Komathy Suppiah JC in the case of Jacob and Toralf Consulting Sdn Bhd v Siemens Industry Software GmbH & Co. And Ors [2013] 1 LNS 914 where it was held that the test to be utilised was not that of “special circumstances” but rather the “rare and compelling circumstances” test enunciated in Reichhold Norway. The learned judge reasoned that it was consistent with a fundamental rule that a plaintiff was not only entitled but required to prosecute his claim in court expeditiously and proceed with trial. [36] On appeal this Court did not disagree with the test applied by the High Court. [37] In Linfield Ltd v Taoho Design Architects Ltd and Others [2002] HKCFI 513 an application for a stay of proceedings by a non- 17 party pending the outcome of arbitration proceedings the High Court in Hong Kong set out the principles to be adopted in determining whether a stay ought to be granted. In summary it was held that the starting point would be the following question: “….What would serve the ends of justice between the parties to the litigation and as far as the administration of justice is concerned? …………………………. ……………………………… The guiding principles are: (1) that the stay must cause injustice to the claimant in the arbitration, and (2) that the applicant for a stay must satisfy the court that the continuance of the arbitration would be oppressive or vexatious to him or an abuse of the process of the Court: In short, that it would be unjust. I would add that where a plaintiff institutes proceedings as of right (and not in breach of an arbitration agreement or exclusive jurisdiction clause) he is not to be deprived of carrying on those proceedings unless very good reasons exist to the contrary.” [38] The application for a stay was therefore dismissed. In arriving at this decision the High Court was influenced by the fact that findings in any of the many arbitrations would, as a matter of law bind the parties to the court proceedings between them. Neither had the parties agreed to be bound by any findings in the arbitration proceedings between Linfield and any of the other arbitrating parties. The learned Judge also accepted that in the course of the court proceedings many similar issues could arise and many similar facts would have to be dealt with in the proceedings against the various parties, but that such findings would not bind the parties to the court proceedings. As such there was simply no point in awaiting 18 the outcome of the arbitral proceedings. It was further accepted that the risk of inconsistent findings might exist but this was unavoidable and was not a weighty factor that entered into the exercise of discretion in the circumstances of the case. [39] In Australia the decision of the Federal Court in Hi-Fert Ltd v Kiukiang Maritime Carriers Inc (1998) 159 ALR 142 (‘Hi-Fert’) emphasises the importance of avoiding re-litigation in the course of determining whether a stay against non-parties should be granted. In that case the plaintiffs were the consignee (Hi-Fert) and Cargill were the consignor of a shipment of wheat. The defendants were the charterer (WBC) and the owner of the vessel carrying the shipment. The shipment was found to be contaminated and could not be discharged at its destination port of New South Wales. The plaintiffs commenced court proceedings in Australia against the defendants in tort and contract. They also claimed against the charterer, WBC for misrepresentation and a contravention of the Australian Trade Practices Act 1974. WBC relied on an arbitration clause in the contract of affreightment between itself and Hi-Fert and sought a stay of the court proceedings under the Australian arbitration statute. The arbitration clause required such proceedings to be arbitrated in London. The non-party, KMC also made a stay application pursuant to the court’s inherent jurisdiction. [40] It was held that the contractual claims by Hi-Fert against WBC fell within the scope of the arbitration clause in the contract of affreightment between them and therefore had to be stayed. However the non-contractual claims were not caught by the arbitration clause. 19 [41] It was held that the best approach was to have both plaintiffs’ claims against both defendants arbitrated in London so that they could run ‘alongside’ and be heard by a common arbitrator in respect of any indemnity claim that WBC might make against KMC as a consequence of the time charter. Therefore a stay was granted in so far as the proceedings related to contractual claims. [42] But in so far as the non-contractual claims against WBC which did not fall within the arbitration agreement, no such stay was granted. It was reasoned that to have the arbitration proceeding in London in respect of the contractual claims against WBC and to have the non-contractual claims proceed by way of court proceedings in Australia would result in the litigation of similar issues in different tribunals. Parties might be required to litigate similar issues in two places. But that unfortunate result arose as a consequence of WBC invoking the provisions of the Australian arbitration statute. [43] In light of this the High Court of Australia held that Hi-Fert having properly commenced proceeding in Australia was entitled to prosecute the proceedings against WBC and KMC in court. If they, i.e. the plaintiff succeeded in the proceedings there might be no need to pursue the contractual claims by arbitration in London. If they failed, then the contractual claims in London could be pursued. [44] It was ordered that the appropriate course would be to impose a condition on the stay of the contractual claims that the reference to arbitration in respect of the contractual claims not proceed until after the final determination of the proceedings in the Federal Court. 20 [45] The factor that seemed to weigh heavily in the outcome of Hi-Fert is that of avoiding re-litigation of the same issues and facts in different fora. [46] In the Singapore Court of Appeal case of Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2015] SGCA 57 (‘Tomolugen’), numerous authorities in the Commonwealth were considered and analysed comprehensively. There were appeals against a judge’s refusal to stay court proceedings in favour of arbitration. It related to an oppression suit. One of the defendants argued that part of the dispute in the court proceedings fell within an arbitration clause in a share sale agreement between itself and the plaintiff and was subject to a mandatory stay. A stay of the remaining court proceedings was also sought pending the completion of the arbitration between itself and the plaintiff. [47] In allowing the appeals and granting a stay of the court proceedings against non-parties pending arbitration, the Singapore Court of Appeal inter alia, opined that the grant of a stay of court proceedings to non-parties to the arbitration under the inherent jurisdiction of the court ought not, to be relegated to such a high threshold as the “rare and compelling circumstances” test articulated in Reichhold Norway. [48] The decision of the Singapore Court of Appeal in Tomolugen is instructive as it studies the approaches adopted in several Commonwealth jurisdictions prior to arriving at the proper approach to be adopted in Singapore. This therefore affords us a bird’s-eye 21 view of the approach adopted in several other jurisdictions enabling this Court to consider the reasoning in these jurisdictions prior to determining the best approach to be taken in these appeals. [49] In so far as Tey and Ooi are concerned, as they are not parties to the arbitration agreement, section 10 of the AA does not come into play. The court’s power to grant a stay is derived from its inherent power to stay court proceedings pending arbitration in the interests of the justice of the case. Therefore the sole issue for consideration is whether the discretion ought to be exercised to allow a stay as sought by Tey and Ooi or to refuse such a stay as submitted by Protasco. At this appellate stage, the question before us is whether the learned judge exercised his discretion correctly in determining that a stay pending arbitration should be granted in respect of Protasco’s claims against Tey and Ooi. [50] In Tomolugen, the Singapore Court of Appeal outlined the options available to a Singapore court when faced with court proceedings against non-parties, when there was a related arbitration. Those options afford a logical, and with respect, well – summarised series of choices available to a court faced with such an issue. The options, as set out in Tomolugen and adopted here are:

(a) to stay the whole of the court proceedings, including those against the non-parties or third parties to the arbitration proceedings, pending the determination of the arbitration. In other words, that the arbitration proceeds first, followed by the court proceedings. 22 That was the option adopted by the learned judge of the High Court, and the option preferred by Tey and Ooi;

(b) to stay the court proceedings to the extent required by section 10 of the AA, but on condition that the arbitration proceed only after the resolution of the remaining court proceedings. This means in effect that the court proceedings against the third parties or non-parties not caught by the arbitration agreement would be heard and determined first, followed by the arbitration proceedings. This is the preferred option of Protasco, as we understand it;

(c) To stay the court proceedings under section 10 in relation to the parties to the arbitration agreement, namely Protasco and PT ASU, and allow the remaining court proceedings against Tey and Ooi to proceed concurrently or in parallel. This means in effect that the arbitration and court proceedings would occur concurrently;

(d) To allow a stay of the court proceedings on certain issues, while allowing other issues to be concurrently determined by the court and in arbitration. (For example breach of contract to be stayed in court proceedings and heard by way of arbitration, while concurrently conspiracy to defraud/injure, lifting of the corporate veil, breach of fiduciary duty etc to be heard concurrently by the court). 23 [51] In deciding on these options it is necessary to take into consideration and weigh up several competing factors relating to both the arbitration and the court proceedings, including:

(i) The overlap in parties in the proceedings and the arbitration – namely Protasco and PT ASU;

(v) The reliefs sought also bear some similarity save for the quantum claimed, namely USD22 million vis a vis PT ASU in the arbitration, and USD27 million in the court proceedings against Tey and Ooi (in view of the shareholder’s advance). There is also overlap in terms of the monies being held by PT ASU and/or Tey and Ooi as constructive trustees for Protasco. [52] On the other hand, any finding of a breach of contract or otherwise does not make Tey and Ooi liable personally. The issue of personal liability if at all, is governed by the court initiated action that comprises the subject matter of these appeals. What this means in practical terms is that even if the arbitration were to proceed, Protasco will have to continue with the court initiated proceedings once the arbitration is completed, in order to prosecute Tey and Ooi personally. That will require an adjudication of the matter twice, as it were. The scope of the arbitration clause in the Agreement between Protasco and PT ASU [53] Prior to determining the best option to be adopted it is necessary to consider one significant issue namely whether the arbitration clause in the agreement between the parties covers or encompasses all the causes of action brought against PT ASU? Namely conspiracy to defraud/injure the imposition of a constructive trust as well as breach of contract, against PT ASU? 25 [54] The arbitration clause in the agreement provides that as between Protasco and PT ASU, “Any dispute arising out of or in connection with this Agreement……….shall be referred to and finally settled by arbitration in Malaysia in accordance with the rules of the Kuala Lumpur Regional Centre of Arbitration for the time being in force………..” [55] ‘Agreement’ appears to be defined in clause 1.1 which provides in summary, for the sale and purchase of 78,750,000 ordinary shares representing 63% of the total issued and paid up capital of PT ASI free from encumbrances, between Protasco and PT ASU. [56] What then is the scope of the arbitral clause? Does it relate solely to issues arising under, or as a result of the Agreement to sell the shares, or does it encompass disputes arising from pre-contractual inducements to enter into the Agreement? This has bearing on the extent of the dispute that is subject to arbitration. [57] Previously the courts from common law jurisdictions used to distinguish between “narrow” arbitration agreements where only disputes arising out of the contract were referred to arbitration and “wide clauses” that encompassed disputes out of the contract as well as those in connection with the contract. However this view was put to rest in the decision of Premium Nafta Products Limited and others v Fili Shipping Company Limited and others (UKHL 2007) 40 more commonly referred to as “Fiona Trust”. There the UK courts abandoned this line of authority. 26 [58] Premised on section 9 of the English Arbitration Act 1996, the House of Lords held that an arbitration agreement should be expansively construed. An assumption ought to be made that business people in particular are assumed to have entered into agreements to achieve some rational purpose. Secondly it held that the parties as rational businessmen were likely to have intended any dispute arising out of the relationship into which they had entered to be decided by the same tribunal. Accordingly arbitration clauses were to be construed in accordance with this presumption unless the language made it clear that certain questions were intended to be excluded. The distinction between wide and narrow clauses was abandoned. [59] The position is even clearer in Malaysia by reason of section 10 which grants a mandatory stay of court proceedings so as to give effect to the arbitration agreement. Applying Fiona Trusts it follows that Protasco and PT ASU as rational business people would have wanted the entirety of their dispute determined by an arbitral tribunal and not just that part relating to a dispute arising out of the contract. In other words, both the conspiracy to injure/defraud and the imposition of a constructive trust dispute would be dealt with in any putative arbitration. [60] Our conclusion is fortified, and we are indeed bound by the decision of the Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 in this respect. In that case, the apex court held that in determining the scope or precise nature of the dispute intended to be submitted to arbitration, the clause ought to be interpreted widely. The commercial purpose was of 27 primary importance. In arriving at this decision it was held that the approach adopted in the case of KNM Process Systems Sdn Bhd v Mission Biofuels Sdn Bhd [2013] 1 CLJ 993 by Mohamad Ariff Yusof J (later JCA) was correct and approved accordingly. [61] It therefore follows that the stay of proceedings granted by this Court pursuant to the application made under section 10 of the AA by PT ASU encompasses the entirety of the dispute including that part of Protasco’s claim relating to a conspiracy to defraud/injure as well as the imposition of a constructive trust. Therefore no part of Protasco’s claim against PT ASU falls to be considered in the civil proceedings, which are stayed pending arbitration. In effect this means that the claims premised on a breach of contract as well as the conspiracy allegations and the imposition of a constructive trust all fall to be determined by way of arbitration. This was clearly the intention of the parties when they entered into the agreement and must be given full effect. Options available in relation to the arbitration between Protasco and PT ASU and the court proceedings between Protasco and Tey and Ooi [62] It follows that there are two options available in determining whether a stay of proceedings should be granted to the two non-parties to the arbitration agreement, namely Tey and Ooi, in relation to the claims made against them of, amongst others, a conspiracy to defraud/injure, breach of fiduciary duty and imposition of a constructive trust: 28

(i) stay the court proceedings only to the extent required under section 10 of the AA, as per the order of this Court in relation to PT ASU, but on condition that the proposed arbitration proceed only after the resolution of the remaining court proceedings, i.e. resolve that part of the court proceedings which falls outside section 10 first; or

(a) The plaintiff’s right to choose whom it wants to sue and where;

(b) The court’s desire to prevent a plaintiff from circumventing the operation of an arbitration clause; and

(c) The court’s inherent power to manage its processes to prevent an abuse of process and ensure the efficient and fair resolution of disputes. 37

(d) The balance that is achieved should be just in all the circumstances of the case. [91] We should also mention for completion that towards the close of parties’ submissions, we invited learned counsel for both Protasco as well as Tey and Ooi to consider achieving some degree of consensus as to the litigation and arbitration of these claims, for example allowing for certain findings to be binding or for a statement of the proposed issues to be raised in the course of the putative arbitration. Parties were unable to achieve any degree of consensus. No concessions were forthcoming in respect of the overlap of issues or evidence etc. [92] Taking all these factors into consideration, and the fact that there is no indication whatsoever that the non-parties are agreeable to be bound by any findings that may be made by the arbitral tribunal, we are of the view that it would be best that the arbitration be stayed vis a vis Protasco and PT ASU until the court proceedings between Protasco and Tey and Ooi are determined. Ultimately it is the interests of justice that must prevail and this option appears to best achieve that goal. [93] However we make a clear note here that Protasco is bound to arbitrate after the court proceedings and cannot simply opt not to undertake its contractual obligation under the Agreement. [94] We are therefore constrained to reverse the finding of the learned Judge of the High Court. His Lordship erred in failing to give any or any reasoned consideration to the relevant principles 38 governing the grant of a stay of proceedings pending arbitration against non-parties, nor the myriad factors to be taken into consideration, applied and weighed so as to achieve a just result. In summary the learned Judge simply concluded that such a stay against the non-parties, Tey and Ooi was warranted because the issues between PT ASU, Tey and Ooi “are so connected and intertwined”. He then went on to conclude that it was inevitable that the facts and issues in the court proceedings, would be considered and dealt with in the arbitration proceedings and vice versa. In light of the duplicity, he was of the view that the court proceedings should therefore be stayed. His Lordship was also of the view that if the stay against the non-parties was not allowed, this would have the effect of rendering the earlier order of this Court academic. It would have the effect of circumventing the earlier order and would cause injustice to PT ASU. [95] We are not satisfied that the learned Judge, with respect, assessed all the relevant material. The learned Judge failed to consider the relevant case-law on the subject and to analyse the issues in the present case prior to arriving at his conclusion that a stay of proceedings as sought by Tey and Ooi was justified. His Lordship misdirected himself and it cannot be said that his decision was the result of a proper and a judicial exercise of his discretion. The decision should therefore be impugned. Appellate intervention is justified. [96] We therefore allow the appeals and set aside the decision of the learned High Court Judge allowing a stay of the court proceedings against Tey and Ooi. The net effect is that the 39 suit/proceedings against Tey and Ooi only are to proceed to trial in the High Court. These proceedings are therefore remitted to the High Court for trial to be conducted as expeditiously as possible. [97] The arbitration proceedings between Protasco and PT ASU are temporarily stayed pending the disposal of the court proceedings in the High Court only, and may proceed immediately upon such adjudication of Protasco’s claim against Tey and Ooi. NALLINI PATHMANATHAN Judge Court of Appeal Malaysia Dated: 29.1.2018 For the Appellant : Encik S.Sivaneindiren W-02(IM)(NCC)-187-01/2017 Encik Peter Skelchy & & Puan Joycelyn Teoh with him) W-02(IM)(NCC)-188-01/2017 Tetuan Cheah Teh & Su Peguambela & Peguamcara L-3-1, No. 2 Jalan Solaris Solaris Mont’ Kiara 50480 Kuala Lumpur For the Respondent : Puan Effa Ruzanna Annuar W-02(IM)(NCC)-187-01/2017 (Puan Lim Hui Li with her) Tetuan Raj Ong & Yudistra Suite 50-4-13, Level 4 Wisma UOA Damansara Jalan Dungun, Damansara Heights 50490 Kuala Lumpur Signed 40 For the Respondent : Encik Edmund Bon W-02(IM)(NCC)-188-01/2017 (Encik Jamie Wong, Puan New Sin Yew dan Pn Ng Yee Chien with him) Tetuan Jamie Wong Peguambela dan Peguamcara D2-3A-8, Solaris Dutamas No. 1, Jalan Dutamas 1 Hartamas Heights 50480 Kuala Lumpur