Rajendran A/L Rasamanickam v 1. ) Koperasi Pekerja Jaya Bhd (WA-22NCvC-68-01/2018)

1.1 The present case centred on alleged impropriety, fraud, conspiracy to 115 defraud and breach of fiduciary duty committed by the defendants against the plaintiffs over a piece of agricultural land registered under the first defendant (D1), who is allegedly under the management and administration by the second defendant (D2) for over forty-five (45) years, that had acted adversely to the detriment of the plaintiffs' 120 interest causing losses and damages.

1.2 The plaintiffs (sub-lot purchasers) claim beneficial ownership over the land entrusted to D1 and D2 to be managed according to their prior agreement when purchasing the rights to the undivided share in the 125 impugned land under the Sub-Lot Purchase Agreement 1978 (SLPA).

1.3 Consequent to the alleged impropriety, the sub-lot purchasers claim they have been denied their beneficial interests and benefits derived from the said land for approximately over forty-five years, and they now 130 seek legal recourse against the defendants.

THE FIVE CIVIL SUITS 4 The following five civil suits were ordered to be heard together as they were fundamentally founded on similar facts and evidential materials:

(I) WA-22NCVC-68-01/2018 (Suit 68)

WA-22NCVC-567-10/2017 (Suit 567)

WA-22NCVC-208-04/2019 (Suit 208)

WA-22NCVC-212-04/2019 (Suit 212)

(V) WA-22NCVC-219-04/2019 (Suit 219) 140 [2]

2.1 After considering the pleadings, the totality of the evidence at the trial together with the respective arguments of all parties, I find that there are merits in those claims. I allowed the plaintiffs’ claims with costs payable by the defendants within thirty (30) days from the date hereof.

2.2 Aggrieved, the defendants appealed as follows:

Suit 68: D1/Koperasi, D2/Gopalakrishnan appealed against the entire decision against them, while D3/Metro appealed part of the judgment and cost.

Suit 567: D1/Koperasi and D2/Gopalakrishnan appealed against the entire decision against them.

Suit 208: D1/Koperasi and D2/Gopalakrishnan appealed against the entire decision against them.

Suit 212: D1/Koperasi, D2/Gopalakrishnan appealed against the 155 entire decision against them, while D3/Metro appealed part of the judgment and cost.

Suit 219: D1/Koperasi appealed against the entire decision against it, while D2/Metro appealed part of the judgment and cost. 160 Since all the suits above are tried together over similar facts and evidential materials, I will only prepare a single ground of judgment. The following are the basis of my decision: THE BASIC FACTS [3] An undeveloped piece of agricultural land held under Geran; 307585, 165 Lot 52339, Seksyen 10, Bandar Kajang, Daerah Ulu Langat, Negeri Selangor (formerly known as Geran: No.18080, Lot No.8853, Mukim Kajang, Daerah Ulu Langat) with an area of approximately 3,831 hectares (9.4666 acres), registered under the name of the first defendant (D1) a registered Koperasi (associated with the Indian 170 political party, MIC) under the Cooperative Societies Act 1993 (the impugned land):

On 20.3.1978 or thereat, D2 and four other individuals (original purchasers) bought the impugned land (agricultural) for a purchase price of RM192,018.75 (exhibit: P1)

They paid the first 10% but could not finance the balance purchase price on their own.

They then devised a sub-lot scheme by informally demarcating and creating temporary sub-lots of the impugned land they didn’t yet own into approximately 6,000-foot bungalow-sized lots as a 180 housing project/scheme.

They sold the purported sub-lot rights to the said demarcated units (50 sub-lots of undivided shares) to interested individuals via a Sub-Lot Purchase Agreement (SLPA), including the plaintiffs, to collect money to fund the balance purchase price of the impugned 185 land. One of the SLPAs used for the purpose with its terms and conditions can be seen in exhibit P2.

The sub-lot purchasers, including the plaintiffs, were assured that D1 (a MIC-related Koperasi) would serve as the vehicle and would act to facilitate the required conversion and the sub-division of the 190 impugned land to the agreed sub-lots. D1, one of its objectives is to administer and pursue its members' economic and social interests, principally those of Indian ethnicity, through housing development projects. D2 managed D1 as the secretary and is a senior office bearer of the Malaysian Indian Congress party (MIC) 195 in Kajang/Ulu Langat.

D1 would provide basic infrastructure like water, electricity, drainage and access. The original purchasers, now the original vendors in this sub-lot scheme, agreed that D1 would undertake the conversion and the subdivision of the impugned land, with 200 individual titles to be granted to the purchasers of the supposed sub-lot scheme. Costs appropriately incurred by D1 are to be reimbursed by the sub-lot purchasers participating in the sub-lot scheme.

The impugned land would be registered in the name and 205 entrusted to D1 (a creature of statute/a registered Koperasi) as the vehicle, managed by D2 as the secretary, to carry out the intent of the SLPAs. The sub-lot purchasers, however, maintained their beneficial ownership rights in the undivided share of the impugned land throughout. 210 THE PLAINTIFFS, THEIR CLAIMS, AND ARGUMENTS

(I) SUIT 68 [4] The plaintiff in Suit 68 claims against the three defendants, Koperasi Pekerja Jaya Bhd (D1), Gopalakrishnan a/l V Subramaniam (D2), and 215

4.1 Sometime in March 1978, D2:

Together with four others, namely Samuel s/o FJ Hogg, Tharumalingam s/o Andy Kaunder, Kandasamy s/o Arumugam, and P Murugasu s/o Periasamy: collectively the original 220 purchasers.

Bought the impugned land from four registered vendors for RM192,018.75. After paying the first 10%, they had to come up with the balance purchase price.

The five original purchasers, who thereafter became the original 225 vendors herein, then devised the sub-lot scheme to be offered and sold to interested purchasers willing to participate in the sub-lot scheme for a piece of undivided share in the impugned land to finance the balance purchase price in 1978.

Sometime in 1978/1979, the plaintiff herein purchased and paid 230 (RM6,000.00) for a 6,000 square feet interest in the sub-lot scheme on the assurances by D2 that the plaintiff would be entitled to the purchased sub-lots once the impugned land was converted and subdivided. He was made to believe he would be entitled to the bungalow-sized lot purchased under the SLPA.

D2 and the other original purchasers of the impugned land undertook to carry out the conversion and sub-division as required. They requested the plaintiff not to lodge any private caveat that could impede the tasks needed on the impugned land.

A copy of the stamped SLPA was handed over to the plaintiff in 240 late 1979, though it was signed in 1978.

The plaintiff was informed that the impugned land had been registered in the name of D1 in 1979, but the plaintiff remained the beneficial owner of the undivided share of the land. In the circumstances, the purchaser was to be registered as a nominal 245 member of D1.

D1 and D2 always acknowledged that the purchaser had a beneficial interest in the purchased sub-lots. Premised on the sub-lot scheme by D2 and the other original vendors, the impugned land is held upon trust for the plaintiff and other sub-lot 250 purchasers, whom D1 and D2 owe fiduciary duty.

Approximately twenty-five (25) years later (28.02.2003), D2 called for a meeting of the sub-lot purchasers at the MIC headquarters, purportedly to brief them on the progress of the sub-lot scheme devised twenty-five years ago with no progress in sight. The 255 plaintiff elected not to attend the said meeting:

D2 informed the plaintiff after an enquiry on the status of the impugned land sub-lot scheme at the office of D1 that to enable the transfer, the plaintiff or his survivor must be a registered nominal member of D1.

Consequently, a nominal membership fee was paid in Mei 2003.

Since then, no other progress report has been forthcoming from D1 and D2 of the devised sub-lot lot scheme, and all inquiries have been to no avail.

4.2 Sometime in 2016, the plaintiff learned that D2 was offering monetary 265 compensation to all sub-lot purchasers (RM98,000.00) provided they were willing to sign certain release documents without fully apprising or disclosing the content or details of the document. The plaintiff took the position to reject any monetary compensation for their rights in the impugned land. D2 subsequently informed the plaintiff that:

The compensation for each sub-lot purchaser was raised to RM125,000.

The money was being retained by the D1 solicitor as a stakeholder.

That the Court had ruled all sub-lot purchasers were entitled to the said compensation.

Compensation will be released once the sub-lot purchasers have signed the 275 acceptance letter.

The compensation was from a developer (D3/Metro) as consideration for purchasing the impugned land. The documents on the transaction were available for viewing at the office of D1.

D2 informed the meeting in 2003 that D1 intended to enter a JVA with 280 D3/Metro to carry out a planned mixed development of the impugned land, but the fact was revealed that the said JVA had already been entered into in 2002 (it was after the fact). A Power of Attorney was granted to D3/Metro to effectuate the mixed development that was never revealed to the sub-lot purchasers.

D3/Metro failed to carry out the intended development, and the JVA expired in 2008 for non-performance.

D2 then caused D1 to enter into a supplementary JVA to affect the outright transfer of the impugned land to D3/Metro at a gross undervalue of the market price of the land, unknown to the sub-lot purchasers who were kept 290 in the dark over the transaction.

D2 had caused D1 to execute the memorandum of transfer of the impugned land, but it could not be completed due to several private caveats lodged by the sub-lot purchasers.

The plaintiff had also registered a private caveat (No.1929/2018) on the 295 impugned land to protect his interests. Facts and circumstances showed that D3/Metro, from the outset, knew about the history of the impugned land and the beneficial rights and interests of the sub-lot purchasers. 300 4.3 When the government compulsorily acquired a small portion (0.638 acres) of the impugned land in April 2003, D1 and D2 did not notify the sub-lot purchasers of it and that compensation over three hundred thousand ringgit (RM300,000.00) was paid by the government. D1 and D2 did not account for it to the sub-lot purchasers as they were duty- 305 bound under the arrangement over the impugned land.

4.4 D1 and D2 failed to account for the income of the latex-producing rubber trees on the impugned land to the sub-lot purchasers. All in all, the defendants were deceitful, fraudulent, and dishonest in their 310 dealings over the land, which had caused loss and damage to the sub-lot purchasers, where they were and still are the beneficial owners.

4.5 The plaintiff pleads:

Particulars of deceit by the defendants:

The defendants executed the JVA, the Supplemental JVA, and the PA with total disregard for the rights and interests of the sub-lot purchasers.

The sub-lot scheme devised by D2 and the other original vendors was never carried out as planned for forty-five (45) years.

The defendants were acting in concert with each other.

There was no progress in the planned conversion and development of the impugned land.

The compulsory acquisition of a small portion of the impugned land and the compensation received from the government was never revealed and kept secret.

The sub-lot purchasers never agreed to dispose of the impugned land as dishonestly claimed by the defendants. They were fraudulently misled into doing it if so at the 2003 meeting.

The defendants attempted to dispose of the impugned land at a grossly undervalued price. 330

Particulars of breach of contract (SLPA)

Failed to convert and sub-divide the impugned land as agreed.

Failed to develop the impugned land as agreed.

Unlawfully dealing with intent to dispose of the impugned land to 335 D3/Metro to the disregard of the approval and interest of the sub-lot purchasers.

Particulars of breach of trust/fiduciary duty:

D1 had wilfully, dishonestly, and unconscionably disregarded the 340 deceased’s estate beneficial interest in the impugned land

D1 and D2 had not accounted for the proceeds from latex-producing rubber trees on the impugned land.

D1 and D2 abused their position and failed to act in the best interest of the deceased’s estate interests in dealing with the impugned land. 345

All the defendants colluded and conspired with each other to defraud the deceased’s estate of its beneficial and proprietary interests in the impugned land.

Particulars of conspiracy to defraud:

Knowing the existence of the beneficial and proprietary interests of the plaintiff, the defendants, in total disregard to it, work in concert with each other to dispose of the impugned land, adversely impacting the interests of the deceased’s estate via the JVA, Supplemental JVA and the PA.

The defendants grossly undervalued the impugned land.

D3/Metro knew about the plaintiff's beneficial interest and that D1 could not dispose of the impugned land without approval from the plaintiff.

The defendants committed equitable fraud to deny the deceased’s estate the beneficial and proprietary interest in the impugned land. 360

Particulars of equitable fraud:

The sub-lot purchasers placed their trust and confidence in the defendants on the development of the impugned land as they were induced to participate in the sub-lot scheme.

D3/Metro, under the JVA and the PA, owe a duty to give effect to the 365 intent of the SLPA.

Instead of carrying out the JVA, D3/Metro turned it into an outright purchase of the impugned land under the supplemental JVA.

D3/Metro, in furtherance of its endeavour to purchase the impugned land, entered into a consent order in the Shah Alam High Court to 370 remove the private caveats encumbering the land by agreeing to compensate some of the sub-lot purchasers.

The defendants kept the plaintiff and the other sub-lot purchasers in the dark about their dealings with the impugned land. 375 4.6 The plaintiff in suit 68 pray for:

An order restraining the defendants from executing any documents to effect the transfer of legal ownership of the impugned land to any third party.

An order restraining the defendants from taking any further steps 380 or proceedings to effect the transfer of the legal ownership of the impugned land.

A declaration that the defendants are trustees of the impugned that they hold upon trust for the plaintiff or his estate.

A declaration that the deceased estate is the legal and beneficial 385 owner of the undivided share in the impugned land.

A declaration that the undivided share in the impugned land is vested in equity in the deceased’s estate.

A declaration that the JVA, Supplemental JVA, and the PA are null and void as they are obtained without requisite approval and 390 authority and occasioned by fraud.

A declaration that any purported transfer executed by D1 and D2 of the impugned land is null and void.

An order that the Land Administrator/Land Registrar of the State of Selangor/Selangor Land office and Mines name the plaintiff as 395 Administrator of the deceased’s estate, as co-owner of the impugned land.

An account of the money had and received from the compulsory acquisition of a portion of the impugned land.

General damages are to be assessed against D1, D2, and 400 D3/Metro.

Exemplary damages to be awarded against D1 and D2.

Cost and any further orders deem fit by the Court.

SUIT 567 405 [5] The plaintiff in Suit 567 claims against the two defendants, Koperasi Pekerja Jaya Bhd (D1) and Gopalakrishnan a/l V Subramaniam (D2):

5.1 With the basic facts similar to Suit 68:

The plaintiff in Suit 567 became a sub-lot purchaser in the sub-lot scheme devised by D2 and the other original vendors in reliance 410 on the express representations made by D2 as set out in Suit 68 that he would eventually become an owner of the 6,000 square feet bungalow sized sub-lot that he had purchased (RM6,000) under the SLPA in June 1978.

Similarly, the plaintiff was asked not to lodge any private caveat, 415 which would encumber the impugned land's conversion, subdivision, and development.

The plaintiff received a copy of the stamped sub-lot SPA in late 1979/early 1980, though it was signed earlier. The impugned land by then had been registered in the name of D1 as agreed:

The impugned land needed to be registered in the name of D1 as a MIC-related organisation to facilitate the required conversion and sub-division for development purposes easily.

D1 merely holds the impugned land as a bare trustee for the sub-lot purchasers, who are the actual beneficial owners of the land.

D1 can carry out its duty to carry out the housing development scheme without any right to dispose of the legal ownership of the land.

The plaintiff and other sub-lot purchasers must be nominal members of D1.

D1 and D2, in the circumstances, owed fiduciary duties to the plaintiff 430 in their dealings with the impugned land.

5.2 With no progress after approximately twenty-five years since 1978:

Parties were called to a gathering in 2003 by D2 at the MIC HQ to purportedly brief the sub-lot purchasers on the status of the development of the impugned land by the defendants:

Metro Esquire (M) Sdn Bhd was introduced as the project manager for the intended development of the impugned land by the defendants with Metro.

The value of the plaintiff and the other sub-lot purchasers' undivided share in the impugned land would be not less than RM100,000.

The plaintiff and the other sub-lot purchasers would be entitled to suitable housing accommodation upon the completion of the land development.

At the end of the supposed meeting, no decision was taken, but it is clear that Metro knew about the existence of the plaintiff and other sub- 445 lot purchasers as the beneficial owners of the impugned land.

It became clear that D1 acted as a bare trustee over the land for the welfare and benefit of the plaintiff and other sub-lot purchasers.

Since that meeting in 2003, there has been no constructive progress on the proposed development of the impugned land, 450 even after assurances given by the then President of MIC and Chairman of D1, Dato Seri Samy Velu.

5.3 Similarly, as in Suit 68:

The defendants did not notify and account to the plaintiff and other sub-lot purchasers of the compulsory acquisition of a portion of 455 the impugned land in 2003 and the compensation received from the government.

To the plaintiff and other sub-lot purchasers, the defendants did not account for the revenue from the latex-producing rubber trees on the impugned land.

The plaintiff discovered in 2017:

That the defendants had agreed to or had sold the impugned land to Metro without any notification or approval of the plaintiff or other sub-lot purchasers.

It’s a fact that a Supplemental JVA was entered into by D1 with Metro 465 on 15.5.2013 for the outright disposal of the impugned land without informing and seeking the approval of the plaintiff or the other sub-lot purchasers.

The defendants lied about it when, at the 2003 meeting, they informed the sub-lot purchasers that they intended to enter into the JVA, when it 470 was already executed earlier in August of 2002.

The defendant had represented that they had the appropriate legal authority to enter into the expired JVA (2002), grant the PA (2002) to Metro for the purported mix-development of the impugned land, and also enter into the Supplemental JVA (2013) for the outright disposal of 475 the impugned land after the JVA failed.

The plaintiff and other sub-lot purchasers were in the dark over the defendants’ covert dealings with Metro, as D2 did not inform them of such dealings.

The plaintiff lodged a private caveat (under presentation no: 480 15499/2017) to protect his interests in the impugned land.

5.4 The plaintiff subsequently discovered that the sub-lot purchasers were being offered RM125,000 each for their undivided share in the impugned land on the premise that it had been sold. The original documents on the transactions can be viewed at D1’s office:

Subsequently, the plaintiff received a Registrar’s Notice dated 11.9.2017 (s.326 NLC 1965-Form 19C) on an application to remove his private caveat on the impugned land.

In the circumstances, D1 and D2 were deceitful, fraudulent, and dishonest in their dealing with the land, adversely impacting the 490 beneficial interest of the plaintiff 5.5 The plaintiff pleads:

Particulars of deceit by the defendants:

The defendants had dishonestly and fraudulently attempted to dispose of the impugned land to a third party by entering into the JVA and 495 Supplemental JVA without the knowledge and approval of the plaintiff and other sub-lot purchasers.

D2 dishonestly negotiated terms and caused D1 to attempt to dispose of the impugned land to a third-party unknown to the plaintiff and other sub-lot purchasers.

The defendants fraudulently concealed the details of the compulsory acquisition of a portion of the impugned land and the compensation received, denying the plaintiff’s right to share in the said compensation.

The defendants fraudulently attempted to dispose of the impugned land at a grossly undervalued price.

The defendants had fraudulently colluded with Metro to cheat the plaintiff of his interest in the impugned land.

The defendants had dealt with the compensation from the government for the compulsory acquisition and the revenue from the rubber trees planted on the impugned land 510

The defendants had breached the terms of the SLPA.

Particulars of breach of contract (SLPA)

Failed to convert and sub-divide the impugned land as agreed.

Failed to develop the impugned land as agreed. 515

Unlawfully dealing with intent to dispose of the impugned land to Metro to total disregard of the approval and interest of the sub-lot purchasers.

Particulars of breach of trust/fiduciary duty:

D1 had wilfully, dishonestly, and unconscionably disregarded the 520 plaintiff’s beneficial interest in the impugned land

D1 and D2 had not accounted for the proceeds from latex-producing rubber trees on the impugned land.

D1 and D2 abused their position and failed to act in the best interest of the deceased’s estate interests in dealing with the impugned land.

The defendants colluded and conspired with Metro to defraud the deceased’s estate of its beneficial and proprietary interests in the land.

Particulars of conspiracy to defraud:

Knowing the existence of the beneficial and proprietary interests of the 530 plaintiff, the defendants with Metro, in total disregard, work in concert with each other to dispose of the impugned land, adversely impacting the interests of the plaintiff.

The defendants grossly undervalued the impugned land.

The plaintiff placed his trust and confidence in the defendants on the 535 development of the impugned land to be entitled to a housing accommodation upon the completion of the housing scheme by D1.

5.6 The plaintiff in suit 567 claimed against D1 and D2:

An order restraining the defendants from executing any 540 documents to effect the transfer of legal ownership of the impugned land to Metro or any third party.

An order restraining the defendants from taking any further steps or proceedings to effect the transfer of the legal ownership of the impugned land.

A declaration that the plaintiff is a valid subsisting co-owner of his undivided share in the impugned land.

A declaration that the Supplemental JVA is null and void as they are obtained without the approval and authority and were occasioned by fraud.

A declaration that any purported transfer executed by D1 and D2 of the impugned land is null and void.

An order that the Land Administrator/Land Registrar of the State of Selangor/Selangor Land office and Mines nullifies or cancels any purported transfer of the impugned land to Metro.

An order that the Land Administrator/Land Registrar of the State of Selangor/Selangor Land office and Mines register the plaintiff's name as a co-proprietor of the impugned land.

An account of the money had and received from the compulsory acquisition of a portion of the impugned land and the revenue from 560 the latex produced from the rubber trees on the impugned land.

General damages to be assessed against D1 and D2.

Exemplary damages be awarded against D2 and costs. Arguments for Suit 68 and Suit 567 565 [6] I had duly considered the plaintiffs' submissions. In a nutshell, the joint counsel for Suit 68 and Suit 567 argued:

6.1 The plaintiffs in Suits 567 and 68 therein collectively took the position that they participated in the scheme by executing the SLPAs sometime in 1978 (exhibit: P2):

It was agreed that the impugned land would be registered in D1 to facilitate the conversion and sub-division as intended.

It was also agreed that the sub-lot purchasers would jointly bear costs properly incurred by D1 in completing the intended project that would be used as a vehicle related to the political party (MIC) that supposedly would make 575 easy facilitation of the planned tasks on the impugned land.

Attached to the SLPA was a sketch of the proposed sub-division of the impugned land into sub-lots.

Time was intended to be the essence of the agreement. 580 6.2 After attracting sufficient sub-lot purchasers and collecting enough money, the original purchasers could meet the balance purchase price from the supposed sub-lot scheme on the impugned land.

6.3 The land was entrusted to and registered in the name of D1 around 585 1979, but the plaintiffs in Suits 68 and 567 had always maintained their right to the beneficial interests in the undivided share of the impugned land.

6.4 D2 admitted in his evidence that the plaintiffs are the beneficial owners 590 of the undivided shares in the impugned land held by D1 as a bare trustee.

6.5 It was argued that:

D1 and D2 tried to deny the plaintiffs' rights by arguing that there was no agreement between the sub-lot purchasers and D1. It was only with the 595 original purchasers.

Despite having express knowledge of the existence of the sub-lot purchasers and their beneficial interest in the impugned land, D2 caused D1 to enter into a JVA with Metro (D3) on 9.8.2002 to undertake a commercial Housing Development Project on the impugned land without informing nor considering 600 the plaintiffs' interests. A PA was granted to D3 over the impugned land (exhibit: P5, recital 5).

RM50,000.00 was paid as part of the consideration for the JVA, but D2 offered no evidence regarding where the money ended.

The JVA expired after a lapse of time (non-performance) when D3/Metro did 605 not commence the project as admitted by D2: Exhibits on the JVA, PA and the SJVA (exhibit: P5, P6, and P7 respectively).

On 28.02.2014, Tung Kok Seng of Metro affirmed an affidavit for D1, and Metro. He falsely claimed that the sub-lot purchaser had proposed to D1 to enter the JVA (L.22 BOD B, Suit 208, PDF131).

In the same affidavit, Metro claimed to be the beneficial owner of the impugned land, which is contrary to the facts (L.22 BOD B, Suit 208, pg.146).

6.6 Several caveats were registered on the impugned land by some of the sub-lot purchasers to protect their interests, encumbering any attempts 615 by the defendants to move on with the impugned land. D1 did write to the caveators to remove it (BOD B, Suit 208 pg 77, 78, 80).

6.7 The defendants called for a meeting on 17.02.2003 between the interested parties and the defendants, but D2 took no minutes as 620 evidence of what transpired at the said meeting (exhibit D15)

6.8 The government acquired a small section (0.628 acres) of the impugned land in 2003, and compensation over RM300k was paid. The sub-lot purchasers were kept in the dark over it, and the 625 compensation received was not accounted for. (exhibit P4).

6.9 Consequently, seeing that a small portion of the impugned land was acquired for the construction of Silk Highway in 2003 and the seeming appreciation of the value of the impugned land, the defendants decided 630 to resurrect the expired JVA by entering into a supplemental JVA on 01.05.2013. D1 was paid RM100,000.00, and vacant possession of the impugned land was granted to D3/Metro. (recital 3 SJVA).

6.10 The SJVA was, in fact, an outright sale of the impugned land to 635 D3/Metro for RM4.8m. The value was a gross undervaluation that was eventually increased to RM6.2m when the government valuation put the value at RM12.7M (exhibit P10) and Jordan Lee and Jaafar valued it at RM41M (exhibit P11). 640 6.11 It was also argued that:

The facts at the trial showed that D2 was the architect behind the administration and fraud of D1 over the impugned land. D1 was merely a vehicle for the fraud perpetrated on the sub-lot purchasers. 645

Reflecting on D2’s flip-flopping inconsistencies renders him a witness unconcerned with the truth of the matter and reflects adversely on his credibility. Fundamentally, as the principal witness for the defence, it offers no credit:

At the trial, D2 admitted that he did not maintain a list of sub-lot 650 purchasers/beneficial owners of the impugned land: NOP, Vol 3, pg.579, Line 13-23, pg.595, Lines 3-12.

However, D2 contradicted himself when he also said they have the list of the sub-lot purchasers: NOP, Vol 3, pg.642 Line 7-16.

In his evidence, D2 claimed that the sub-lot purchasers were just 655 participants, not the beneficial owners: NOP, Vol 3, pg.600, lines 25- 29, but he eventually admitted that the sub-lot purchasers were the beneficial owners.

In NOP, Vol 3, pg.615, lines 15-31, at one time, he said that when the impugned land was initially purchased, the original intent was to put in 660 bungalows by sub-dividing it into bungalow lots:

However, in NOP, Vol 3, pg.640, lines 13-18, he said it would be subdivided into 50 sub-lots, just 50 lots, not bungalow lots.

(ii) Then, in NOP, Vol 3, pg.40, lines 31-34, the said lots can be used for a bungalow lot and any purpose too.

(iii) D2’s penchant for creativity did not stop there when, in NOP, Vol 4, pg.755, lines 19-20, he said the development of the impugned land means to develop it either to lots or to other types of development (unsupported).

(iv) The latter was not the intent of the SLPA.

D2 was not forthcoming:

With the sub-lot purchasers on the progress or the lack thereof concerning the sub-lot scheme in the SLPA in a forty (40) year period. This can be seen in his evidence: NOP, Vol 3, pg.599, lines 18-29; NOP Vol 3, pg.600, lines 5-12; NOP Vol 3, pg.602, lines 12-25; NOP, Vol 3, 675 pg.603, lines 11-23.

Since 1978 (the date of the SLPA), the only meeting called with the sub-lot purchasers was in 2003 (after 25 years), just to inform them of the JVA (exhibit P5) with Metro for the mixed development of the impugned land that was already entered into in 2002. Cognisance is taken from 680 the fact that a corporate representative of Metro was there at that meeting when the matter was discussed with the sub-lot purchasers.

The deceitful conduct of D2 can also be seen in NOP, Vol 3, pg.621, lines 19-32, where he admitted that it was not necessary to inform Metro of the sub-lot purchasers:

It was after the fact, though it was narrated at that meeting as an intent to enter into the JVA.

(ii) D2 thought it was unnecessary to inform the sub-lot purchasers or get their approval before entering the JVA: NOP. Vol 3, pg.622, lines 20-25.

(iii) He, however, admitted that Metro knew or ought to have known about the existence of the sub-lot purchasers and their beneficial interest: NOP, Vol 3, pg. 693, lines 4-22; NOP, Vol 4, pg.731, lines 6-21.

(iv) D2 misled the board of D1 by informing them that it was the sub- 695 lot purchasers who had asked D1 to enter into the JVA with Metro when there was no evidence as such: NOP, Vol 3, pg.679, lines 1-34; NOP, Vol 3, pg.680, lines 1-16.

Though D2 keep repeating that D1 was the legal and beneficial owner of the impugned land, the Annual Reports of D1 did not 700 make such reference (exhibits P12 and P13.

(vi) When D1 entered the SJVA with Metro (exhibit P7) to effectively dispose of the impugned land in 2013, D2 did not notify the sub-lot purchasers contrary to Clause 42(c) of the SJVA. D2 admitted this: NOP, Vol 4, pg.727, lines 1-9.

(vii) When the government compulsorily acquired a small portion of the impugned land in 2003, it reduced the size to 9.4 acres. Therefore, it complies with the supposed government requirement that the impugned land be subdivided into 50 sub-lots without needing a mixed development, as it was slightly more than 10 acres earlier. 710 It negates D2’s argument that the subdivision envisioned under the SLPA could not be done because of the requirement of a mixed development: NOP, Vol 4, pg.729, lines 24-29; NOP, Vol 4, pg.729, line 31, and pg.730, lines 1-19.

(viii) The deceitful manipulation of the impugned land can also be seen 715 in NOP, Vol 4, pg.751, lines 14-32 and pg.752, lines 1-32 over a Perjanjian Asal (27.07.2008) that convinced the board of D1 to accept a consideration of 4.8m. D2 never adduced that supposed agreement in Court, though he claimed it exists and assured the Court that he would look for it. 720

6.12 Contrary to the untenable contentions of the defendants:

The existence of the trust over the impugned land arising from the facts and circumstances of the present case is irrefutable. D2 725 himself admitted that D1 is the legal proprietor, while the sub-lot purchasers are the beneficial owners of the land: NOP, Vol 3, pg.612, lines 12-26; NOP, Vol 4, pg.713, lines 16-23; NOP, Vol 4, pg.905, lines 5-8; NOP, Vol 3, pg.582, lines 31-32, and pg.583, line 1; NOP, Vol 3, pg.693, lines 27-29; NOP, Vol 4, pg.712, lines 21-25; NOP, Vol 730 4, pg.716, lines 14-16. It is submitted that the requirements of the law have been met:

There is no uncertainty of intention.

There is no uncertainty of the subject matter, and 735

There is no uncertainty of the object of the trust.

The Court of Appeal’s position on resulting trust was cited in Loo Hon Kong v Loo Kim Lim [2004] 4 CLJ 1, CA, which observed that the plaintiff, having paid the entire purchase price for the land, 740 the act of registering the land in the name of the defendant merely vested the nominal legal ownership in the latter. The beneficial ownership rests with the plaintiff. In the circumstances of the present case:

D1 did not pay any money for the impugned land.

The purchase price was funded with money collected from the SLPA.

The impugned land registered in the name of D1 to effectuate the intent under the SLPA. It was never intended as a gift.

The relationship between the parties is not that of family members. 750

The defendants, in attempting to argue otherwise on the existence of the trust in light of all the foregoing evidence, reflect the dishonesty and deceit of the defendants. The defendants had breached this trust:

D2 admitted that D1 holds the impugned land on behalf of the sub-lot 755 purchasers: NOP, Vol 3, pg.612, lines 17-18.

D2 had the duty to inform the sub-lot purchasers of the project's status on the impugned land: NOP, Vol 3, pg.612, lines 28-31.

D2 failed in his duty: NOP, Vol 3, pg.613, lines 1-3.

D2 and D1 never informed nor sought the approval of the sub-lot 760 purchasers in entering the JVA: NOP, Vol 3, pg.614, lines 1-6.

D2 admitted that the intention was to put in bungalows: NOP, Vol 3, pg.615, lines 21-24.

D2 admitted that putting in the bungalows was the intent under clause 10 of the SLPA: NOP, Vol 3, pg.615, lines 26-31.

D2 also admitted that a significant mixed development would be undertaken with Metro without informing the sub-lot purchasers: NOP, Vol 3, pg. 616, lines 1-9, on the premise that he wanted to give a substantial return to the sub-lot purchasers without informing or agreeing with them.

D2 admitted that entering the JVA with Metro was done without proper authority: NOP, Vol 3, pg.616, lines 23-32.

D2 admitted that had it not been for the several private caveats by the sub-lot purchasers, the development with Metro would have proceeded without informing and discussing with the sub-lot purchasers: NOP, Vol 775 3, pg.618, lines 11-19.

Clause 12(b) of the JVA (exhibit P5) with Metro allows Metro to retain any compensation resulting from any acquisition of the part of the impugned land.

The invitation to attend a briefing on the project in 2003 by D1 and D2 780 with the presence of the corporate representative of Metro, where the sub-lot purchasers were asked to sign a letter agreeing to the development project without disclosing what that purported development would be.

The SJVA in May 2013 (exhibit P7) that was executed without informing 785 and agreeing with the sub-lot purchasers after the lapse of the JVA for non-performance was for the outright sale of the impugned land to Metro at a gross undervalue of RM4.8m with no valuation done before the purported sale by D1 and D2. 790

6.13 The plaintiffs assert that the defendants had committed equitable fraud against all the sub-lot purchasers. Citing the Federal Court in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 CLJ 445, FC, that observed it is not the label that is put to it. The pleaded facts will determine the classification of the type 795 of fraud, be it actual, constructive or equitable, for the trial Court to decide. The plaintiffs assert that:

In causing the impugned land to be registered in the name of D1, a representation was made that it was to facilitate the required conversion, subdivision and development of the land.

Unknown to the sub-lot purchasers and without their agreement, D1 was to receive a percentage of the mixed development with Metro. When that did not happen due to non-performance by Metro, an SJVA was entered for the outright sale of the impugned land, which is again unknown to and in the absence of the agreement of the sub-lot purchasers.

6.14 The unconscionable conduct of D1 and D2, in the circumstances:

Constitutes a breach of their fiduciary duty to the sub-lot purchasers they were bound to protect. Citing in support, the Federal Court in Board of Trustees of the Sabah Foundation & 810 Ors v Datuk Syed Kechik Bin Syed Mohamed & Anor [2008] 5 MLJ, FC, that was cited and followed by the Federal Court in Solid Investments Ltd v Alcatel Lucent (M) Sdn Bhd [2014] 3 CLJ 73, FC. In a nutshell, it was observed:

A fiduciary is someone who has undertaken to act for or on behalf of 815 another in a relationship of trust and confidence.

In such circumstances, the principal is entitled to the loyalty of his fiduciary.

The fiduciary may not act for his or a third person's benefit without the principal's informed consent.

The various obligations of a fiduciary merely reflect different aspects of his core duties of loyalty and fidelity.

It gives rise to a legitimate expectation that equity recognises that a fiduciary will not use his position adversely to the principal's interest. 825

From the preceding facts and circumstances of the case, it is irrefutable that such a situation exists in the present case. D2 took advantage of the trust and confidence of the sub-lot purchasers concerning events that had unfolded for over 40 years to the detriment of the interest of sub-lot purchasers. The sub-lot 830 purchasers are at the complete mercy of D1 and D2: Takako Sako v Ng Pek Yuen & Anor [2010] 1 CLJ 381, FC observed that a fiduciary relationship could be imposed by the Court where:

The fiduciary can exercise some discretion or power over the matter.

Such discretion or power can affect the beneficiaries' legal or practical 835 interests.

The beneficiaries are vulnerable to, or at the mercy of, the fiduciary that holds such discretion or power.

The plaintiffs submit that from the facts, it is obvious D1 and D2 had acted in their interest, unknown to and without the informed 840 agreement/consent of the sub-lot purchasers in deciding on issues with the impugned land contrary to their fiduciary duties. There is no evidence before the Court that the sub-lot purchasers had ever agreed to the outright disposal of the impugned land under the SJVA. The claim by the defendants that it was all merely 845 a commercial transaction is untenable in the circumstances.

6.15 The plaintiff in:

Suit 567 asserts that D1 and D2 conspired to defraud him,

In Suit 68, the plaintiffs asserted that D1, D2 and D3/Metro 850 conspired to defraud. The Court of Appeal’s decision in Manzer Medical Sdn Bhd & Ors v Bongsor Bina Sendirian Bhd [2018] 1 LNS 897, CA and Tow Kong Liang & Ors v FBO Land (Setapak) Sdn Bhd [2018] 1 LNS 243, CA were cited that observed in a conspiracy to defraud:

There must be an agreement (not necessarily a written or express).

A combination of two or more parties.

There must be a common intention to effect an unlawful purpose or to do a lawful act by unlawful means.

The acts must be performed in furtherance of the agreement with that 860 common intention and

Causing damage to the plaintiff. From the facts, it could be discerned that the JVA and the SJVA entered into by defendants, including Metro, were without the informed 865 knowledge and agreement of the sub-lot purchasers. However, the acknowledged beneficial owners (known to all defendants) are entitled to know and agree on the matter. Metro knew of the sub-lot purchasers because their corporate representative was present at the 2003 meeting called by D1 and D2. Notwithstanding this knowledge, the 870 defendants proceeded with the JVA (mix-development) and the SJVA (an outright sale of the impugned land at a gross undervalue), disregarding the sub-lot purchasers' interest.

6.16 D2 denied:

That he had any knowledge of the compulsory land acquisition by the government in 2003 with compensation paid (exhibit P4). This position is untenable in light of the evidence before the Court.

D3/Metro has decided to refund the compensation of RM336,000 to D1 that it supposedly received in 2004 under the SJVA for the 880 land acquisition.

The sub-lot purchasers, being the beneficial owners, are entitled to compensation, not D1 and D3/Metro.

6.17 The evidence of Stephen James (PW5):

A former director of D1 who was able to give his evidence in chief and duly cross-examined by the other counsels of the plaintiffs in the other suits.

Unfortunately, he died before the counsels for the defendants could cross-examine him.

The several letters that he wrote or that concerned him during his time as a director of D1 had shed light and clarity on the events that had unfolded with D1, D2, and the market value of the impugned land had all been admitted at the trial (exhibits: P27, P28, P30 and P31).

The evidence in these exhibits had been corroborated by the facts adduced and revealed at the trial. D2 acknowledged receipt of these letters by Stephen James: NOP, Vol 4, pg.763, lines 28-32; NOP Vol 4, pg.764-765, lines 25-22, and NOP, Vol 4, pg.767, lines 307.

There is no evidence from D1 and D2 of any consequential action 900 taken on these letters. D2, in his evidence, admitted that D1 did nothing: NOP, Vol 4, pg.765, line 16.

These letters showed that D1 and D2 were sufficiently cautioned on the market value of the impugned land in 2013 at RM24.393m and in 2016 at RM31.363M. The defendants' persistence in 905 accepting RM4.8M from D3/Metro necessarily red-flagged the sale transaction.

6.18 The defendants asked for unfounded reliefs:

There was an understanding among the original vendors that D1 was supposed to be paid a 5% administrative fee for managing 910 the impugned land. However, apart from that bare assertion, no evidential materials were produced to support the claim:

The SLPA makes no mention of such administrative fees.

D2 admitted in his evidence that the supposed 5% administrative fee was only approved by the board of D1 approximately 30 years 915 (15.08.2012) after the SLPA was executed with the beneficial owners. It was an afterthought: NOP, Vol 3, pg.664, lines 1-33.

Remuneration for supposed services as a trustee for the impugned land:

D1 failed to realise any objectives (conversion and subdivision) under 920 the SLPA for 45 years.

the facts support the breach of fiduciary duty by D1 and D2 to the sub-lot purchasers.

Appropriately incurred costs and statutory dues on the land are not an issue. 925 [7] The reliefs sought:

The plaintiff in Suit 567 asks for:

General damages be assessed against D1 and D2 for:

Breach of trust.

(ii) Breach of fiduciary duties.

(iii) Conspiracy to defraud.

(iv) Equitable fraud.

Exemplary damages of RM2m be imposed. 935

The plaintiffs in Suit 68 asks for:

General damages be assessed against D1, D2 and D3/Metro for:

Breach of trust.

(ii) Breach of fiduciary duties.

(iii) Conspiracy to defraud.

(iv) Equitable fraud.

Exemplary damages of RM2m be imposed.

The plaintiffs in Suits 567 and 68 also ask that:

The impugned land be sold by public tender.

The tender exercise will be carried out by a committee comprising solicitors acting for the plaintiffs (I observed, it was 950 not pleaded).

The impugned land is sold to the highest bidder.

D1 is ordered to execute Form 14A and all other required statutory instruments to appropriately convey the impugned land to the successful bidder.

After deducting costs and expenses, the sale proceeds are divided by 50 shares, with each plaintiff entitled to their respective share/shares.

D2 to be paid according to his share/shares.

The committee shall invite all other persons claiming to have 960 a share in the impugned land through two newspaper advertisements to make their claim.

Any sums unclaimed after three months will be further divided among the parties who have succeeded in establishing their claim.

Costs and interest. 970

SUIT 208 [8] The plaintiffs in Suit 208 claim against the two defendants, Koperasi Pekerja Jaya Bhd (D1) and Gopalakrishnan a/l V Subramaniam (D2), that: 975 8.1 The plaintiffs in Suit 208:

Shares fundamentally similar basic facts with Suits 567 and 68 and will not be repeated here.

Similarly, the plaintiffs herein participated in the impugned land sub-lot scheme by entering into the SLPA in 1978:

Under clause 10, parties agreed to register the impugned land in the name of D1 to raise a loan to finance the balance purchase price and facilitate the conversion and subdivision.

Under clause 15(e), the plaintiff would be entitled to the title and the vacant possession of the sub-lot once D1 successfully undertakes 985 conversion and subdivision of the impugned land and D1 undertake the development (undefined) of it. Under the scheme, the sub-lot purchasers would be entitled to individual bungalow-sized sub-lots.

The plaintiffs herein, in partaking in this sub-lot scheme, relied entirely on the fundamentally similar representations of D2 as set out in Suits 990 567 and 68. The defendants in those circumstances, owe fiduciary duties to the plaintiffs.

P1, in this suit, lodged a private caveat (presentation no: 8340/2000) over the impugned land to protect his interest. 995

The plaintiffs claimed that D1 is only a trustee or a constructive trustee of the impugned land occasioned by the arrangement made by parties under the SLPA.

In breach of this trust and their fiduciary duties, the defendants attempted to wrongfully and fraudulently dispose of the impugned 1000 land to Metro:

The defendants wilfully, wrongfully and fraudulently disregarded the plaintiffs’ beneficial interest in the impugned land.

The defendants failed to account for the latex-producing trees on the impugned land throughout the period. 1005

The defendants abused their position of trust by not acting in the best interest of the plaintiffs.

The defendants had colluded or conspired with Metro to impair the beneficial interest of the plaintiffs.

In the circumstances, the defendants had frauded the plaintiffs in their 1010 dealings with the impugned land:

Perpetrated fraud in attempting to dispose of the impugned land unknown to the plaintiffs in the SJVA with Metro.

(ii) Entered the JVA with Metro to mixed develop the impugned land without informing and agreeing with the plaintiffs and other sub-lot 1015 purchasers.

(iii) The defendants concealed all discussions, terms and conditions, and dealings with Metro from the plaintiffs and other sub-lot purchasers, with a common intention to cheat the plaintiffs and other sub-lot purchasers. 1020

8.2 The plaintiffs in Suit 208 ask for the following:

A declaration that D1 holds the impugned upon trust for the benefit of the plaintiffs.

An order for the sale of the impugned land and the sales proceeds 1025 to be distributed accordingly amongst the plaintiffs and other sub-lot purchasers.

An order that the defendants surrender all documents pertaining to the impugned land and account concerning the compulsory acquisition of a small portion of the land by the government and 1030 the compensation received.

An order that the defendants account for all monies had and received concerning the impugned land from 1978.

The first plaintiff further claims: 1035

A declaration that P1 is the beneficial owner of the undivided share in the impugned land.

(ii) An order that the Land Administrator/ Registrar of Lands Negeri Selangor register P1 as a co-proprietor of the impugned land. 1040

(iii) An order that the defendants do deliver vacant possession of the said undivided share in the impugned land.

The second plaintiff further claims:

A declaration that P2/deceased is the beneficial owner of the 1045 undivided share in the impugned land.

(ii) An order that the Land Administrator/ Registrar of Lands Negeri Selangor register P2/deceased as a co-proprietor of the impugned land.

(iii) An order that the defendants do deliver vacant possession of 1050 the said undivided share in the impugned land.

General damages against the defendants to be assessed.

Exemplary damages to be imposed.

Interests and costs. 1055 Arguments by the plaintiffs for Suit 208 [9] I had duly considered and observed the submissions. In a nutshell, the two plaintiffs in Suit 208 participated in the sub-lot land scheme in 1978 by executing the SLPA. Under this SLPA, the sub-division of the impugned land was restricted to 50 sub-lots for 50 sub-lot purchasers 1060 hoping to own their bungalow-sized sub-lots:

9.1 D1 and D2 failed to carry out the conversion and subdivision of the impugned land, but in 2002, they entered into a JVA with Metro and asked that the plaintiff in Suit 208 remove his private caveat registered 1065 on the impugned land.

9.2 D1 and D2, in an apparent act of deception, misled the sub-lot purchasers by stating at the meeting on 28.02.2003 that they intended to enter into a JVA with D3 when they had already done so in 2002. 1070 They then asked everyone at the meeting to sign a consent letter agreeing to the mixed development with Metro.

9.3 D1 and D2, in a blatant disregard for transparency, had granted Metro a PA over the impugned land to carry out their development intentions 1075 in the JVA (exhibit P6).

9.4 When the government acquired a part (0.638 acres) of the impugned land, D1 and D2 did not disclose this information to the sub-lot purchasers, nor were the compensation sums distributed to the sub- 1080 lot purchasers when it was allowed by D1 and D2 to be claimed by Metro under the JVA (exhibits P5).

9.5 No disclosure was made to the sub-lot purchasers when the SJVA was entered into guised to supposedly resuscitate the lapsed JVA (non-performance) when, in fact, it was an outright sale of the impugned 1085 land to Metro. This show the dishonesty of the defendants in attempting to dispose of the impugned land to Metro without notifying and agreeing with the sub-lot purchasers (exhibit P7).

9.6 To date, the plaintiffs in Suit 208 have not received any benefit despite the span of 45 years since partaking in the sub-lot scheme. 1090 9.7 D1 and D2 breached the express intention and terms of the plaintiffs' SLPA by failing to deliver their fundamental part of the bargain, rendering the SLPA void.

9.8 The defendants fraudulently applied for a mixed development over the impugned land instead of 50 bungalow lots as agreed that could be 1095 done since the impugned land is smaller than 10 acres after the compulsory acquisition of a part of the land reduced its size to approximately 9.4 acres. The argument by D2 to defend his position is untenable.

9.9 The SLPA was founded on trust amongst the parties that D1 and D2 1100 had breached. The plaintiffs’ beneficial interest, which the solicitor for the defendants does not dispute, had been adversely impacted by the breach committed by D1 and D2. Sufficient evidence at the trial shows that D2 violates his fiduciary duties and trust.

9.10 The gross undervaluation of the impugned property is a testament to 1105 the impropriety of the defendants when the impugned land was sold to Metro for RM4.8M (with earnest money of RM100,000.00 paid) when the actual value was higher. Even when revised to RM6.2M, it was still grossly undervalued when the government valuation put the figure at RM12.6M. 1110 9.11 No notification or approval of the sub-lot purchasers was obtained before the sale was made quietly by D1 and D2. D2, however, agreed that the sale to Metro under the SJVA in 2013 was without the approval of the sub-lot purchasers. There is an apparent conspiracy to defraud the sub-lot purchasers by D1, D2 and Metro. 1115 9.12 D2 failed/refuses to produce pertinent documents at the trial that could have shed the necessary light on the issue, and an adverse inference against him should be made under s.114(g) EA 1950.

9.13 The defendants materially breached the SLPA:

Failure to duly update the plaintiffs on the impugned land status 1120 concerning the conversion and subdivision restricted to 50 sub-lots as agreed. It was never intended to be a mixed development, as suggested by D2.

They failed to carry out the required conversion and subdivision as agreed: NOP (14.12.2022), Vol.3, pg.596; pg. 599; pg.601; NOP 1125 (29.3.2023), Vol 4, pg.807. D2 admitted this in his evidence.

The land had no pathway access encumbering any purported development. Knowing this, the defendants did not inform the sub-lot purchasers: NOP (14.12.2022), Vol 3, pg.603; pg.612. Section 66 of the Contracts Act 1950 was cited on void contracts, 1130 where a party receiving any benefits under it must restore the benefit to the other party or compensate for it. Since D1 could not carry out the development as envisaged in the SLPA, the land should be returned to the sub-lot purchasers for breach of agreement.

9.14 The arrangement between the parties is founded on trust among them. 1135 The sub-lot purchasers retain the beneficial ownership of the undivided share in the impugned land. D2 admits the position of trust in his evidence: NOP (14.12.2022), Vol 3, pg.585. The solicitor for the defendants also admitted as much at the trial. Like in Suits 567 and 68, Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ, FC was cited on the 1140 creation of constructive trust. As trustees, the defendants owe fiduciary duties to the sub-lot purchasers to act for their benefit:

In this regard, the defendants failed in their duty. They failed to account for the revenue from the rubber trees planted on the impugned land. 1145

They failed to act in good faith to the plaintiffs: The Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik Syed Mohamed & Anor [2008] 3 CLJ 221, FC.

They breached their duty by fraudulently attempting to dispose of the impugned land to Metro under the SJVA at a grossly 1150 undervalued price (RM4.8M):

Though evidence has been led in Court that they had been forewarned about it in exhibits P27, P28, P30, and P31 by the defendants’ board member: NOP (29.3.2023), Vol 4, pg.891.

The defendants did not act upon the advice of the former board member 1155 (SP5): NOP (26.1.2023), Vol 4, pg.763; NOP (26.1.2023), Vol 4, pg.767.

The defendants did not offer any rebuttal evidence on the exhibits above at the trial.

The defendants failed to duly and appropriately apprise the sub- 1160 lot purchasers of the execution of the JVA(2002) and SJVA (2013) that was secretly/covertly carried out between them without notifying and agreeing with the sub-lot purchasers. D2 agreed to this in his evidence: NOP (29.3.2023), Vol 4, pg.809-810; pg.893.

9.15 The impropriety of D1 and D2 in wrongfully and fraudulently 1165 attempting to dispose of the impugned land at an undervalued price is supported by the circumstances and facts adduced at the trial. It is a trite law that the civil burden on fraud is applicable when judging the issue in a civil trial.

9.16 There is no denying from the facts that the defendants concealed the 1170 compulsory acquisition of a small portion of the impugned land and the fact that Metro was allowed under the JVA to accept and retain the compensation paid. That is an outright fraud on the sub-lot purchasers. This establishes the conspiracy to defraud the sub-lot purchasers. 1175 9.17 Rather than applying for a conversion and subdivision as agreed with the sub-lot purchasers, the defendants applied for a mix-development approval from the state authority contrary to the agreed terms of the

9.18 D2 took the position not to adduce pertinent documents to lend clarity 1180 on the issues before the Court. An adverse inference under s.114(g) of the Evidence Act 1950 should be applied to D2.

9.19 The position:

Taken by the defendants that this dispute with the sub-lot purchasers ought to be resolved at the Tribunal of Suruhanjaya 1185 Koperasi Malaysia is untenable. Suruhanjaya’s letter dated 25.05.2015 directed the defendants to ventilate this matter in Court (L.22 CBOD B. pp.182-184).

The Court of Appeal dismissed a similar issue in an appeal on the striking-out application involving the plaintiffs and the defendants 1190 by remitting the case back to the High Court for trial (L.22 CBOD L.22 pp.5-7).

The argument by the defendants that the JVA and SJVA were to effectuate the wishes of the sub-lot purchasers is unsustainable from the facts and circumstances before the Court. Everything 1195 was done secretly/covertly, with pertinent facts concealed from the plaintiffs and all other sub-lot purchasers.

9.20 It has been 45 years since the plaintiffs executed the SLPA, and nothing is to be shown for it. The promises under the SLPA had failed to be delivered for four decades on the flimsiest of excuses, which is 1200 utterly ridiculous. [10] The plaintiffs in Suit 208 ask for the following:

A declaration D1 holds the impugned land upon trust for the plaintiffs.

The impugned land will be disposed of by tender, and the 1205 proceeds will be distributed to the sub-lot purchasers.

That the Court orders the removal of any encumbrances on the impugned land, including any caveat by D3.

That the defendants deliver up all pertinent documents and accounts of the compulsory acquisition of a portion of the 1210 impugned land.

An account of all monies had and received on the impugned land since 1978.

An account of all monies concerning the impugned land transacted with the defendants. 1215

The first plaintiff further claims:

A declaration that P1 is the beneficial owner of the undivided share in the impugned land.

(ii) An order that the Land Administrator/ Registrar of Lands Negeri Selangor register P1 as a co-proprietor of the 1220 impugned land.

(iii) An order that the defendants deliver vacant possession of the undivided share in the impugned land.

The second plaintiff further claims: 1225

A declaration that P2/deceased is the beneficial owner of the undivided share in the impugned land.

(ii) An order that the Land Administrator/ Registrar of Lands Negeri Selangor register P2/deceased as a co-proprietor of the impugned land. 1230

(iii) An order that the defendants deliver vacant possession of the undivided share in the impugned land.

General damages be assessed against D1 and D2.

Exemplary damages.

Costs and interest. 1235

(IV): SUIT 212 [11] The twelve plaintiffs in Suit 212 claim against the three defendants, Koperasi Pekerja Jaya Bhd (D1), Gopalakrishnan a/l V Subramaniam (D2), and Metro Esquire (M) Sdn Bhd (D3. In this suit, it also involves 1240 a Counterclaim (L18) by D1 against P4 and P5:

11.1 The plaintiffs in Suit 212:

Shares fundamentally similar basic facts with Suits 567, 68 and

It will not be repeated here. 1245

Similarly, all the plaintiffs herein participated in the impugned land sub-lot scheme by entering into the SLPA sometime in 1978 with the original vendors to purchase shares in the 50 sub-lots in the undivided share of the impugned land.

The original vendors sold 35 sub-lots to the plaintiffs and other 1250 sub-lot purchasers, with each original vendor taking three (3) sub-lots each.

In this Suit 212, all the plaintiffs purchased one (1) sub-lot each, except for the fifth plaintiff, who took two (2) sub-lots out of the 50 sub-lots offered. 1255

11.2 The plaintiffs alleged that subsequently, on 09.08.2002 (24 years after the execution of the SLPAs), D2 caused D1 to enter the JVA and granted a PA to D3/Metro to carry out the mix-development on the impugned land without notifying or agreeing with the plaintiffs and 1260 other sub-lot purchasers:

In July 2008, unknown to the plaintiffs, D3/Metro informed D1 that they could not carry out the alleged mix-development envisaged in the JVA that had expired for non-performance.

On 15.05.2013, D2 caused D1 to enter the SJVA with D3/Metro 1265 guised to amend, vary and revise the terms of the expired JVA for an outright sale of the impugned land for RM4.8m without notifying and agreeing with the plaintiffs and other sub-lot purchasers.

The defendants failed to deliver the promises in the SLPAs (conversion and sub-division, amongst others). On being aware in 1270 2013 that the land would be disposed of to D3/Metro under the SJVA, the plaintiffs demanded by letter (18.12.2013) for a full disclosure on the JVA and the SJVA.

When the government compulsorily acquired a small portion of the impugned land for the SILK Highway with compensation paid, the 1275 same was concealed from the plaintiffs and other sub-lot purchasers.

To date, the defendants continue failing to deliver the promises in the respective SLPAs, causing loss and damage to the plaintiffs. 1280 11.3 Wherefore, the plaintiffs in Suit 212 ask for the following:

A declaration D1 holds the impugned land upon trust for the plaintiffs and other sub-lot purchasers

A declaration that the plaintiffs are the beneficial owners of the undivided share in the impugned land. 1285

The impugned land will be disposed of, and the proceeds will be distributed to the sub-lot purchasers by the trust.

That the defendants deliver up all pertinent documents and accounts of the compulsory acquisition of a portion of the impugned land. 1290

An account of all monies concerning the impugned land transacted with the defendants, including the compensation for the compulsory acquisition.

General damages be assessed.

Costs and interest. 1295 Arguments by the plaintiffs for Suit 212 [12] I had duly considered and observed the submissions. In a nutshell, the twelve plaintiffs in Suit 212 participated in the sub-lot land scheme in 1978 by executing the SLPAs with the five original vendors. 1300

12.1 The plaintiffs became members of D1 subject to the condition that they are not to be treated as ordinary members and not subjected to D1’s constitution and rules.

12.2 The collection of funds from the SLPAs in 1978 was sufficient to pay 1305 the balance purchase price by the original vendors in purchasing the impugned land, which no longer requires D1 to take up commercial financing to fund the payment of the balance purchase price.

12.3 D1 had all material times:

Held the impugned land upon trust for the benefit and interest of 1310 the plaintiffs and other sub-lot purchasers. The three “Cs” legal requirements of (i) Certainty of intent, (ii) Certainty of subject matter, and (iii) Certainty of object have been met: Ong Kong Beng & Anor v Ong Kong Leong & Ors [2022] 3 MLJ 536, CA.

The circumstances of the case and the admission of facts by D2 1315 establish the trust as argued: Paragon Finance plc v DB Thakerar & Co (a firm); Paragon Finance plc and another v Thimbleby & Co (a firm) [1999] 1 All ER 400 at 409, CA observed that a constructive trust arises by operation of the law whenever circumstances are such that it would be 1320 unconscionable not to do so.

In Twinsectyra Ltd v Yardley [2002] 2 All ER 377, it was held that in determining the breach of duty by a trustee, the test is that of subjective dishonesty:

The defendants' behaviour was dishonest by the standards of honest 1325 people.

(ii) The defendants must be shown to have appreciated that their behaviour contravened ordinary standards of conduct. Contrary to the assertion of D1 and D2 that no evidence had been 1330 adduced compelling enough to cite them for breach of trust as alleged, the plaintiff took the position in Royal Brunei Airlines Sdn Bhd v Philip Tan Kok Ming [1995] 2 AC 378, PC where the Privy Council observed that what matter is the state of mind of the third party sought to be made liable in any event, not the state of 1335 mind of the trustee. The trustee would be liable for the breach of trust, even if he acted innocently unless excused by an exemption clause in the trust instrument or relieved by the Court. The Privy Council held in Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 All ER 333, PC that it is the objective 1340 test to be adopted in determining the standard of honesty. The ‘subjective’ element in the combined test only meant that the person’s knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. In the present case, the conduct of the 1345 defendants, as the facts had disclosed, is undoubtedly dishonest, contrary to the terms of the SLPAs with the sub-lot purchasers. They had blatantly breached the trust they were to uphold.

12.4 D1: 1350

Entered into a JVA in 2002 with D3/Metro intending to mix-develop the impugned land contrary to the terms of the SLPAs, where the sub-lot purchasers only wanted their promised bungalow-sized sub-lots.

D1 also granted a PA to D3/Metro the carry out the intended mix- 1355 development.

The JVA and the PA were executed without prior consultation or approval from the sub-lot purchasers, including the plaintiffs.

The mix-development under the JVA did not take off and lapsed by 2008:. 1360

The defendants elected to resuscitate the JVA by entering into an SJVA in 2013, which, in reality, was an attempt at the outright disposal of the impugned land to D3/Metro at RM4.8m, which was grossly undervalued.

This was done without the sub-lot purchasers' prior consultation 1365 or approval.

When the government compulsorily acquired a small portion of the impugned land in 2003 with an RM336,000.00 compensation, the same was concealed by D1 and D2 from the sub-lot purchasers.

Instead, D3/Metro was allowed to claim the compensation under 1370 the JVA, which is a total disregard for the beneficial rights of the sub-lot purchasers.

12.5 The defendants have failed to convert and subdivide the impugned land as agreed with the sub-lot purchasers, thereby unlawfully 1375 depriving the plaintiffs of the expected benefits under the SLPAs.

12.6 There is no dispute that D1 and D2 hold the impugned land on trust for the plaintiffs and other sub-lot purchasers. D1 and D2 acted inconsistent with their fiduciary obligations: 1380

The Federal Court decision in Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd [2017] MLJU 1107, FC, was cited in support, where the following principles were distilled:

As a matter of law, a constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable 1385 for the owner of the property (usually but not necessarily the legal owner) to assert his beneficial interest in the property and deny the beneficial interest of another.

A constructive trust is a trust which is imposed by equity to satisfy the demands of justice and good conscience without reference to any 1390 express or presumed intention of the parties: Hassan Kadir & Ors v Mohamed Moidu Mohamed & Anor [2011] MLJU 1556; [2011] 5 CLJ 136, FC.

A constructive trust is a remedial device to prevent unjust enrichment. It takes the title to the property from one person whose title unjustly 1395 enriches him and transfers it to another who has been wrongly deprived of it: Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 1 MLJ 289; [2009] 2 CLJ 363, CA. 1400

The Federal Court decision in RHB Bank Berhad v Travelsight (M) Sdn Bhd & Ors and another appeal [2016] 1 MLJ 175, FC on proprietary remedy was also cited in support. The FC observed:

That the moral quality of the defendant’s conduct is relevant in 1405 determining whether a proprietary remedy is appropriate in the circumstances to be granted.

The proprietary remedy is to remedy and restore the plaintiff’s property, of which he has been wrongly deprived.

It also prevents the defendant from retaining a benefit obtained 1410 wrongfully/unjust enrichment.

The classification it applies is not exhaustive, where equity must retain the flexibility and capacity to adapt to evolving situations.

A constructive trust should be awarded if there is reason to grant additional rights flowing from recognising a property right. 1415

12.7 It is trite law in the circumstances of the case that the compensation received from the government for the compulsory acquisition of the impugned land must be distributed among the sub-lot purchasers: Section 2 land Acquisition Act 1960; Aikpoint Development Sdn Bhd v 1420 Gemenceh Enterprises Sdn Bhd [2013] 9 MLJ 235.

12.8 The plaintiffs:

Are not at any time a party to or privy in the JVA (9.8.2002) and the SJVA (15.5.2013) between D1 and D3/Metro. 1425

Consequently, any issues concerning the two agreements rest and stop with D1/D2: Suwari Sdn Bhd v Government of the State of Sabah [2008] 1 MLJ 743, FC.

In Tsang Yee Kwan v Majlis Perbandaran Batu Pahat [2011] 8 CLJ 913, CA, it was observed that only the contracting parties 1430 could incur liabilities arising from that contract.

In the circumstances, it is a sustainable argument that the plaintiff has no cause of action against D3/Metro for the JVA (2002) and the SJVA (2013). By the same token, the plaintiffs cannot be accountable in any action by D3/Metro against D1/D2 concerning 1435 the JVA and the SJVA: MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428, CA. [13] The counterclaim by D1 against P4 and P5:

Is untenable as D1 is the party in breach of the JVA with D3/Metro 1440 over the failure to convert and subdivide the impugned land. It has nothing to do with the plaintiffs:

The JVA and SJVA are strictly between D1 and D3/Metro.

It has nothing to do with the sub-lot purchasers who were kept in the dark over it. 1445

D1 claimed that:

P4 & P5, two of the five original vendors to the sub-lot purchasers and themselves sub-lot owners, adopted a hands-off approach after the impugned land was transferred to D1.

(ii) They failed to provide the full details and record of the sub-lot 1450 purchasers, complicating D1’s communication with the sub-lot purchasers.

(iii) They failed to enforce the SLPAs with the sub-lot purchasers to secure payments for costs and expenses concerning the impugned land.

(iv) The failure on their part causes D1’s inability to meet payments for 1455 costs, expenses and solicitor’s fees occasioning loss.

The civil action by the sub-lot purchasers encumbered the JVA and SJVA with D3/Metro, causing them to institute a civil action (HC KL: WA-22NCVC-768-11/2018) seeking damages against D1.

(vi) D1 now claims against P4 & P5 for the 5% fee of the land value, or P4 1460 & P5 is ordered to collect the fee from the rest of the sub-lot purchasers.

(vii) D1 also asks for contribution and indemnity against P4 & P5 for any loss or expenses suffered by D1 concerning the impugned land or order that it be collected from the rest of the sub-lot purchasers.

(viii) D1 also seeks that P4 & P5 surrender all documents on the SLPA they 1465 handle.

It was argued that:

The legal burden to prove the allegation rests on D1, citing: S.101-s.103 of the Evidence Act 1950; the Federal Court in 1470 Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 6973, FC. 1475

(ii) The selection and execution of the JVA and SJVA with D3/Metro were covertly carried out without notifying and agreeing with the sub-lot purchasers. D1 and D2 went out on a frolic of their own and kept the sub-lot purchasers in the dark over the matter. The sub-lot purchasers were only informed after the fact when the need arose to prosecute the 1480 two agreements. D1 and D2 fraudulently carried it out without notifying and agreeing with the sub-lot purchasers: NP3/616, lines 1-27. In the circumstances, there is no legal foundation to support the unfounded counterclaim, and it must be dismissed. 1485 [14] The plaintiffs in Suit 212 ask for the following:

A declaration D1 holds the impugned land upon trust for the plaintiffs and other sub-lot purchasers.

A declaration that the plaintiffs and other sub-lot purchasers are 1490 the beneficial owners of the impugned land.

The impugned land will be disposed of, and the proceeds will be distributed to the sub-lot purchasers.

That the defendants deliver up all pertinent documents and accounts of the compulsory acquisition of a portion of the 1495 impugned land.

General damages should be assessed against D1, D2, and D3/Metro.

Costs and interest. 1500

(V): SUIT 219 [15] The eight plaintiffs in Suit 219 claim against the two defendants, Koperasi Pekerja Jaya Bhd (D1) and Metro Esquire (M) Sdn Bhd (Metro). This suit also involves a Counterclaim (L10) by D1 against P1: 1505 15.1 The plaintiffs in Suit 219:

Share fundamentally similar basic facts with Suits 567, 68, 208 and 212. It will not be repeated here.

Similarly, all the plaintiffs herein participated in the impugned land sub-lot scheme by entering into the SLPAs sometime in 1978 with 1510 the original vendors to purchase shares in the 50 sub-lots in the undivided share of the impugned land.

The original vendors offered interested purchasers 50 sub-lots of the impugned land.

In this Suit 219, all the plaintiffs purchased one (1) sub-lot each, 1515 except for the sixth plaintiff, who took two (2) sub-lots out of the 50 sub-lots offered.

It was argued that the impugned land is held on trust by D1 for the sub-lot purchasers, including the eight plaintiffs. 1520 15.2 The plaintiffs’ argued that:

D1 had misrepresented and breached the obligations to secure the impugned land's required conversion, subdivision, and development.

D1 and D2/Metro in this Suit 219 had entered into a JVA with a 1525 PA in 2002 to develop the impugned land contrary to the terms of the SLPAs. There was actual or constructive notice of all of the existence of beneficial rights that the plaintiffs had in the impugned land:

The JVA and the PA (09.08.2002) were executed without notifying and 1530 agreeing with the plaintiffs and all other sub-lot purchasers.

In 2008, unknown to the sub-lot purchasers, Metro informed D1 that they could not carry out the development under the JVA (2002) and asked to revisit the agreement. 1535

D1 and Metro executed the SJVA (15.05.2013). Again, just like the expired JVA (2002), this was done without notifying and agreeing with the plaintiffs and other sub-lot purchasers. The SJVA essentially disposed of the impugned land to Metro at a grossly undervalued price of RM4.8m when the market value was 1540 several times more than that in 2013.

Outright disposal of the impugned land was contrary to the intent of the SLPAs with the sub-lot purchasers. It was wrongful and unlawful, carried out without notifying and agreeing with the sub-lot purchasers. 1545

The defendants concealed this fact from the plaintiffs and other sub-lot purchasers When the government compulsorily acquired a small portion of the impugned land with compensation paid for the Silk Highway. The compensation received was never distributed to the plaintiffs and other sub-lot purchasers. 1550

The adverse covert conduct of the defendants caused the plaintiffs to suffer loss and damages over their beneficial ownership rights in the undivided share of the impugned land. [16] The eight plaintiffs, therefore, pray for:

A declaration D1 holds the impugned land upon trust for the 1555 plaintiffs and other sub-lot purchasers.

A declaration that the plaintiffs are the beneficial owners of the impugned land.

An order to sell the impugned land, and the proceeds will be distributed to the sub-lot purchasers according to the trust. 1560

That the defendants deliver up all pertinent documents and accounts of the compulsory acquisition of a portion of the impugned land, as well as an account of the compensation had and received.

Further and or in the alternative: 1565

An Order for the Land Administrator/Registrar of Lands Negeri Selangor registers the plaintiffs’ name as co-proprietor of the impugned land, or

(ii) D1 pay the plaintiffs the value of their undivided share in the impugned land based on the current market value of the land. 1570

General damages be assessed against the defendants.

Costs and interest. Arguments by the plaintiffs for Suit 219 [17] I had duly considered and observed the submissions. In a nutshell, the 1575 twelve plaintiffs in Suit 219 participated in the sub-lot land scheme in 1978 by executing the SLPAs with the five original vendors.

17.1 The secretary to D1, Gopalakrishnan, who is the second defendant in Suits 68, 257, 208 and 212, took the lead in obtaining the services of 1580 solicitors to handle the SLPAs with the sub-lot purchasers and collect the payment from them.

17.2 The collection of funds from the SLPAs in 1978 was sufficient to pay the balance purchase price by the original vendors in purchasing the 1585 impugned land, which no longer requires D1 to take up commercial financing to fund the payment of the balance purchase price.

17.3 Gopalakrishnan oversaw several sub-lot purchasers to include them as members of D1, since D1 will be holding the impugned land on trust 1590 for the sub-lot purchasers. D1 had all material times held the impugned land upon trust for the benefit and interest of the plaintiffs and other sub-lot purchasers.

17.4 In 2002, D1 entered into the expired JVA with Metro. 1595

17.5 In 2013, D1 entered the SJVA to dispose of the impugned land to Metro at a grossly undervalued price of RM4.8m. All the while, the JVA and the SJVA were covertly entered into unknown to and without the agreement of the sub-lot purchasers. 1600

17.6 The Court need to determine ultimately whether:

The existence of trust on D1 concerning the impugned land.

The plaintiffs and other sub-lot purchasers are entitled to share in the compensation for the government’s acquisition of the 1605 impugned land.

D1, entitled to be reimbursed for appropriately incurred expenses for the conversion and subdivision of the impugned land that did not happen.

D1, entitled to 5% of the value of the impugned land as an 1610 administrative fee.

D1, entitled to claim for damages by way of counterclaim against P1/Samuel Hogg. 1615

17.7 The counterclaim by D1 against P1 (L10)

P1/Samuel a/l Frederick Joseph Hogg/PW4:

Is one of the five original vendors to the sub-lot purchasers and places himself as sub-lot owner, adopting a hands-off approach after the 1620 impugned land was transferred to D1.

(ii) He failed to provide the full details and record of the sub-lot purchasers, complicating D1’s communication with the sub-lot purchasers.

(iii) He failed to enforce the SLPAs with the sub-lot purchasers to secure payments for costs and expenses concerning the impugned land. 1625

(iv) The failure on the part of P1 causes D1’s inability to meet payments for costs, expenses and solicitor’s fees occasioning loss.

The civil action by the sub-lot purchasers encumbered the JVA and SJVA with Metro, causing them to institute a civil action (HC KL: WA- 22NCVC-768-11/2018) seeking damages against D1. 1630

(vi) D1 now claims against P1 for the 5% fee of the land value, or P1 is ordered to collect the fee from the rest of the sub-lot purchasers.

(vii) D1 also asks for contribution and indemnity against P1 for any loss or expenses suffered by D1 concerning the impugned land or order that it be collected from the rest of the sub-lot purchasers. 1635

(viii) D1 also seeks that P1 surrender all documents on the SLPAs he handled.

In response, it was argued that:

P1 had established that he had retained a one-unit share of the 50 sub- 1640 lots in 1978 when he had disposed of the two other units that he holds to Lim Ang Sooi (P6) and the other to Salahuddin Hassan, whose status has been recognised by D1. Save for bare assertions, D1 could not produce compelling evidence that P1 no longer owns any sub-lot in the impugned land. 1645

(ii) P1 is a named original vendor in SLPAs and one of the original purchasers who contributed to the 10% deposit in the SPA of the impugned land in 1978.

(iii) P1 had regular meetings with the secretary of D1/ Gopal to update the list of sub-lot purchasers. As a trustee, D1 managed the impugned land 1650 for the sub-lot purchasers. D1 had the list of sub-lot purchasers as it had prepared the attendance list for the meeting held in 2003, with a representative of Metro also in attendance: NOP4/906, lines 5, 15.

(iv) DW1 in evidence had acknowledged holding the impugned land on trust for the plaintiffs, including P1: NOP4/905, lines 5-2. 1655

D1 was to carry out the conversion, subdivision, and development of the land it failed to deliver. In failing its duties, D1 needed to update and keep proper records of all the sub-lot purchasers.

(vi) D1 did not furnish any claims for expenses incurred as claimed.

(vii) This counterclaim is an afterthought by D1. 1660

This counterclaim by D1 has no foundation and must be dismissed. [18] For convenience, in repetition, the plaintiffs ask for the following: 1665

A declaration D1 holds the impugned land upon trust for the plaintiffs and other sub-lot purchasers.

A declaration that the plaintiffs are the impugned land beneficial owners.

An order to sell the impugned land, and the proceeds will be distributed to the sub-lot purchasers according to the trust. 1670

That the defendants deliver up all pertinent documents and accounts of the compulsory acquisition of a portion of the impugned land, as well as an account of the compensation had and received.

Further and or in the alternative:

An Order for the Land Administrator/Registrar of Lands Negeri Selangor 1675 registers the plaintiffs’ name as co-proprietor of the impugned land, or

(ii) D1 pay the plaintiffs the value of their undivided share in the impugned land based on the current market value of the land.

General damages be assessed against D1 and D2/Metro and costs. 1680 [19] Arguments by D1 and D2 for their defence (all Suits):

19.1 I had duly considered and observed the submissions. In a nutshell, D1 and D2 in all the suits above took the position that:

Approximately 24 years (1978-2003) after the signing of the 1685 SLPAs:

D1/Koperasi and D2/Gopalakrishnan called for a meeting of the participants on 28.02.2003 to resolve the private caveats entered by several plaintiffs and to get the consent of the sub-lot purchasers on the JVA (2002) entered with Metro. 1690

The meeting was hosted by D2/Gopalakrishnan & another director of D1, and a Metro representative known as Alex Ong to explain the planned mixed development of the impugned land and the sharing ratios on the proposed development.

While some had signed the purported consent for the 1695 development, others disagreed.

As the facts had disclosed, the JVA (2002) was eventually expired, with Metro conceding in writing that it could carry out the mixed development as planned: 1700

D1/Koperasi decided to accept an offer by Metro to dispose of the impugned land for RM4.8M instead of the percentage of units allocated to D1/Koperasi under an SJVA (2013) guised to resurrect the expired JVA.

The RM4.8M was intended to be shared with all the sub-lot 1705 purchasers.

Metro placed the RM4.8M with D1/Koperasi’s solicitor as a stakeholder, to be released upon the transfer of the impugned land to Metro.

As one of the proposed resolutions with several sub-lot 1710 purchasers on the private caveats encumbering the disposal of the impugned land, the purchase consideration was revised to RM6.260M. This was eventually aborted, and the Court revoked the consent order. This consent order is no longer an issue before the parties. 1715

D1/Koperasi terminated the SJVA on 28.3.2018 and was accepted by Metro. The stakeholding sum was returned to Metro.

The legal issues to be determined in all suits are:

Whether there is trust in all the five suits. 1720

Is there a breach of trust?

Is there fiduciary duty, and has there been a breach?

Is there fraud?

Is there a conspiracy to defraud?

Is there equitable fraud? 1725

D1/Koperasi has never denied the interest of the sub-lot purchasers in the impugned land and has maintained that position throughout the trial. The RM336,000.00 compensation for the compulsory acquisition of a portion of the impugned land is 1730 academic since Metro has agreed to return it:

Though D1/Koperasi and D2/Gopalakrishnan acknowledged the existence of the trust, there has not been any breach of it. They argued that they had acted in the best interest of the sub-lot purchasers. Therefore, the issue of breach of fiduciary 1735 duty does not arise.

Similarly, they deny any allegation of fraud or equitable fraud on their part, and neither was there any conspiracy to defraud the sub-lot purchasers.

D1/Koperasi was not a party in the 1978 SLPAs, nor did it 1740 make any representation through D2/Gopalakrishnan. The five original vendors and the sub-lot purchasers agreed to transfer the impugned land to D1/Koperasi to facilitate the intended sub-division and development (clause 10 of the SLPAs). 1745

Grounded on clause 10 thereof, D1/Koperasi entered into the JVA (2002) with Metro for the intended development that was agreed to by some of the sub-lot purchasers in the 2003 meeting. D1/Koperasi would not have proceeded with the JVA (2002) had any sub-lot purchasers objected. 1750

D1/Koperasi had been burdened with the impugned land since 1979, and there was no consensus with the sub-lot purchasers on what to do with the land.

It was argued that the plaintiffs in Suits 567, 68 and 208 had unnecessarily blamed the debacle on D2/Gopalakrishnan as 1755 he is the secretary who runs D1/Koperasi. He denies making the alleged representations to the sub-lot purchasers to persuade them to buy into the sub-lot scheme by entering into the SLPAs. He claimed to be a man of good repute. He claimed he does not know any of the plaintiffs and has never 1760 induced them into the SLPAs.

Decisions taken on the impugned land were made by the board of D1/Koperasi and not D2/Gopalakrishnan alone.

The defendants leave it to this Court how to deal with the impugned land in moving forward: 1765

It is wrong for some sub-lot purchasers to claim more than what they are entitled to under their respective SLPAs.

(ii) There are other sub-lot purchasers who are not parties to these suits.

(iii) The plaintiffs in Suits 68 and 567 cannot go beyond the scope of 1770 their claim to determine the rights of other sub-lot purchasers who are not parties herein.

(iv) D1/Koperasi should be reimbursed for the expenses incurred concerning the impugned land.

An administrative fee of 5% of the impugned land value should be 1775 paid to D1/Koperasi.

(vi) The sub-divided lots of 50 should be maintained for 50 undivided shares in the impugned land scheme.

19.2 In Suits 567 and 68 and other suits on overlapping issues: 1780

Contrary to the plaintiff's pleadings, D2/Gopalakrishnan could not and did not make the so-called representations to induce them into the SLPAs. The so-called representations were made by someone else other than D2/Gopalakrishnan. 1785

Neither was D2/Gopalakrishnan present in the lawyer's Law Office assigned to handle the SLPAs when the sub-lot purchasers signed it. It is unlikely that D2/Gopalakrishnan made any of those so-called representations that induced the sub-lot purchasers to 1790 enter into the land scheme.

The issue of the non-valuation of the impugned land is an afterthought in Suits 567 and 68, as the same was not raised during the gathering on 28.03.2003 when the defendants sought 1795 the sub-lot purchasers' approval for the JVA (2002) executed before the meeting with Metro.

D2/Gopalakrishnan maintained his position that he had not met the plaintiffs before they signed the SLPAs. 1800

The defendants seek to dismiss the evidence of PW5 (Stephen a/l TK James):

A former director of D1/Koperasi who had direct knowledge of the affairs of the impugned land and its valuation. 1805

Whose evidence shed light on the events concerning the market value of the impugned land and the action/inaction of D2/Gopalakrishnan and D1/Koperasi on it as seen in Exhibits P27, 28, 30, and IDP29.

After he completed his examination in chief, he passed away. 1810

The defendants argued they had been denied their right to cross-examine PW5 on his evidence, and it ought to be disregarded, or no weight attached to it, citing: O.38, r.2(1) RC 2012; Dr. Shanmuganathan v Periasamy s/o Sitihambaram [1997] 2 CLJ 153. 1815

Evidence was led through D2/Gopalakrishnan and Tan Sri Rajoo (PW3), a director of D1/Koperasi against PW5:

It was argued that PW5 had a grudge with D2/Gopalakrishnan since PW5 was asked to resign from the board after his bankruptcy status was discovered. 1820

(ii) With all the disparaging remarks against D1/Koperasi and D2/Gopalakrishnan, PW5 bought one undivided share in the impugned land scheme he transferred to his son.

The plaintiffs have adduced no compelling evidence on the 1825 allegations of deceit, dishonesty, fraud, or intention to defraud, and conspiracy to defraud committed by D1/Koperasi and D2/Gopalakrishnan.

It is trite law that the burden lies on the plaintiffs throughout the trial. Sections 101, 102 and 103 of the Evidence Act 1950 and 1830 Section 17 of the Contracts Act 1950 were cited for support. Actual fraud is a question of fact to be established from the circumstances of the case. The vague and general averment of fraud or conspiracy to defraud is insufficient to establish the plaintiffs' claim. There can never be fraud and conspiracy to 1835 defraud without intent to deceive: CIMB Bank Berhad v Veeran Ayasamy [2015] 7 CLJ 289.

Similarly, on equitable fraud, the defendants argued that the requirements of (a) an existing relationship of trust and confidence 1840 between the parties and (b) unconscionable conduct on the part of the defendants had not been proven, citing Takako v Ng Pek Yuen & Anor (No.1) [2010] 1 CLJ 381; KTL Sdn Bhd v Leong Oow Lai [2014] 1 LNS 427. The dealings between the parties vis-a-vis the impugned land is purely commercial. 1845

The impugned land:

Was voluntarily registered in the name of the D1/Koperasi with the full knowledge and consent of the sub-lot purchasers to facilitate the intended conversion, subdivision and 1850 development of the land.

The trust issue is academic.

D1/Koperasi and D2/Gopalakrishnan do not deny the beneficial rights of all sub-lot purchasers present and absent before this Court. 1855

There is no necessity to impose a constructive trust in favour of the plaintiffs as no evidence of dishonesty on the part of D1/Koperasi has been tendered as evidence. Citing NKS Tharmaseelan NK Sinnadorai v Amaratham 1860 Ramiah & Ors [2023] CLJU 2878 in support.

In determining a breach of trust, it was argued that the Federal Court in CIMB Bank Berhad v Maybank Trustees Bhd & other Appeals [2014] 3 CLJ 1, FC referred to Twinsectra Test where: 1865 Lord Hoffman opined that it requires more than just knowledge of the facts, which makes the conduct wrongful. They need a dishonest state of mind, a consciousness that (1) one is transgressing ordinary standards of honest behaviour. Lord Hutton added that it must be established that the 1870 defendant's (2) conduct was dishonest by the ordinary standards of reasonable and honest people and that he realised that his conduct was dishonest by those standards. This test was used in Edward Stanislaus De Silva & Ors v Yeng Chong Realty Bhd [2023] 9 CLJ 571 in holding in that case that 1875 it is not accurate to say that the defendant had no intention to develop the land when evidence showed basic groundwork for the project was carried out. Applying this test to the present case, the efforts to develop the impugned land can be seen in the JVA

with Metro, even though it did not materialise. It led to the 1880 SJVA (2013), which was eventually aborted. There is no evidence of a dishonest intention on the part of the defendants, and the action of the defendants did not contravene ordinary standards of conduct by honest and reasonable people. 1885

19.3 There is no privity of contract between the sub-lot purchasers and

The SLPAs were only between the five original vendors (that included D2/Gopalakrishnan) and the sub-lot purchasers. There 1890 is no privity of contract with D1/Koperasi. The Federal Court in Suwiri Sdn Bhd v Government of the State of Sabah [2008] 1 MLJ 743, FC observed that in privity of contract, it cannot confer rights or impose obligations on strangers to the agreement. 1895

D1/Koperasi is not a signatory in the SLPAs. It became entangled in the transaction under the SLPAs under Clause 10, in which the parties agree to transfer the impugned land under D1/Koperasi to facilitate any financing required, subdivision, and development thereof. However, cognisance is taken that there is no evidence 1900 that D1/Koperasi objected to the role it had undertaken under the said clause 10:

The so-called representation in the SLPAs was not made by D1/Koperasi, who was never a signatory of those agreements. No consideration moved from the plaintiffs to 1905 D1.

The defendants postulated that the so-called representations made after signing the SLPAs are not binding.

D2/Gopalakrishnan maintains that he did not make such representations. He signed the SLPAs in his personal 1910 capacity and not as a representative of D1/Koperasi.

D1/Koperasi cannot be liable or held accountable for the SLPAs disputes between the five original vendors and the sub-lot purchasers even though D1/Koperasi still holds the impugned land for the benefit of the sub-lot purchasers. That 1915 is why the said land was never declared in the list of D1/Koperasi’s assets in the Annual Report.

The impugned land is there for the sub-lot purchasers to decide what to do.

None of the plaintiffs has established the losses they have 1920 suffered.

D1/Koperasi has not received any reimbursement for expenses incurred concerning the impugned land.

The SLPAs do not give rise to a trust situation.

D1/Koperasi cannot be held to the promises made by the five 1925 original vendors to the sub-lot purchasers.

The civil recourse by the sub-lot purchasers lies with the five original vendors and not D1/Koperasi.

The defendants argued that the plaintiffs had only elected to sue 1930 D1/Koperasi and D2/Gopalakrishnan and not the other four original vendors. The five original vendors share a joint obligation under the SLPAs to the sub-lot purchasers. Therefore, it was posited that the plaintiffs could not just elect to sue D2/Gopalakrishnan alone without suing the other four original 1935 vendors for civil recourse.

19.4 From the facts, it cannot be imputed that a fiduciary duty exists between D1/Koperasi, D2/Gopalakrishnan and the sub-lot purchasers. In the absence of such a duty, the alleged breach of such a duty cannot 1940 arise:

The sub-lot purchasers voluntarily agreed to transfer the impugned land to D1/Koperasi to carry out the intent under clause 10 of the SLPAs.

it was argued that there is no issue of trust, confidence, or 1945 legitimate expectation between the parties for the fiduciary duty to arise in the present case:

D1/Koperasi did not breach any trust as it did what was required under clause 10 of the SLPAs. No compelling evidence has been adduced to show otherwise or that there 1950 was a dishonest intention on the part of D1.

The plaintiffs cannot sustain these suits as they had signed the letters of consent (2003) authorising the development project under the JVA (2002). The granting of the Power of Attorney to Metro was a requirement under clause 7 of the 1955 JVA. Ratification by the sub-lot purchasers rectified any irregularity: Lee fah Pin & Toh Gerpoh v Great Development Sdn Bhd [2022] CLJ 912.

Even if the execution of the JVA (2002) and the SJVA (2013) were irregular, they had been superseded with the 1960 termination of both agreements and are no longer an issue.

The plaintiffs in these suits have not been deprived of the impugned land, nor have the defendants profited from it.

There is no compelling evidence of the defendant's allegation of a conspiracy to defraud. The four essential elements of (i) 1965 an agreement to carry out certain acts, (ii) involving unlawful/illegal acts to cause injury, (iii) performed in furtherance of the joint agreement, and (iv) the plaintiffs have been injured by it, are not proven. 1970

The Federal Court observation in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik Bin Syed Mohamed & Anor [2008] 3 CLJ 221, FC was cited that the distinguishing obligation of a fiduciary is the obligation of loyalty. He must act in good faith; he must not make a profit out of the 1975 trust; he must not place himself in a position of conflict; he may not act for his benefit or the benefit of a third person without the principal's informed consent.

It is not an exhaustive list. Breach of fiduciary duty connotes disloyalty or infidelity. 1980

The Federal Court also observed in Solid Investments Ltd v Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ, FC, the recognition accorded to ad-hoc fiduciary relationships. The categories of fiduciary relationships are not closed.

It may be owed, although the relationship does not fall within one 1985 of the settled categories of fiduciary relationships, provided the circumstances justify its imposition.

The defendants argued that the plaintiffs failed to prove that fiduciary duty was owed to the sub-lot purchasers, which was breached. 1990

19.5 In the circumstances, the defendants are not liable to pay the plaintiffs any general or exemplary damages as sought:

The plaintiffs must prove the injury or damage they have suffered. The Federal Court in Tan Sri Khoo Teck Puat & Anor v 1995 Plenitude Holdings Sdn Bhd [1995] 1 CLJ, FC cited and quoted Lord Goddard in Bonham-Carter v Hyde Park Hotel Ltd 64 TLR 177 that it is insufficient to list down the particulars and throw it at the head of the court, they have to prove it. 2000

It must be proved with factual evidence and not bare assertions: PB Malaysia Sdn Bhd v Samudera (M) Sdn Bhd [2008] CLJU

679.

Exemplary damages are only awarded in exceptional 2005 circumstances, that is, to punish and deter in cases involving oppressive action by the government or the defendant’s conduct amounts to making a profit for himself: Cheng Poon & Ors v Khaw Cheng Bok & Ors & Another Appeal [2005] 3 CLJ 753. It does not apply in the present case. There are no special 2010 circumstances to justify it.

The plaintiff did not provide compelling materials to establish pain and suffering, mental hardship, distress, etc., that they suffered to justify an award of damages. They have not suffered any loss or 2015 damage. It is D1/Koperasi that had incurred expenses.

19.6 D1/Koperasi seek to be reimbursed:

For the expenses it incurred concerning the impugned land. D1/Koperasi asserted that the rent should be refunded for the quit 2020 rent and assessment of the land.

The sub-lot purchasers agreed in clause 14 of the SLPAs to be responsible for all outgoings, including quit rent and other rates payable concerning the impugned land. 2025 19.7 The five original vendors agreed that D1/Koperasi should be paid an administrative fee for holding the land, but such a term was never part of the SLPAs. Therefore, D1/Koperasi cited section 46 of the Trustee Act 1949, which empowered the court to remunerate D1 for its services. 2030 In the circumstances, D1/Koperasi and D2/Gopalakrishnan pray that all the suits before this court be dismissed with costs. [20] Arguments by Metro in their defence (the relevant Suits). 2035 20.1 I had duly considered and observed the submissions. In a nutshell, Metro in all the suits above took the position:

20.2 Metro argued:

Under the expired JVA, 09.08.2002 (exhibit: P5), it was agreed 2040 that D1/ Koperasi were entitled to specific agreed percentages from the proposed mixed development. A PA (exhibit P6) was granted to deal with the relevant authorities and make all the necessary applications for project implementation.

D1/Koperasi had on 11.02.2003 issued a written invitation to all 2045 members to gather on 28.02.2003 to brief on the terms of the expired JVA and obtain their consent. D2/Gopal attended the gathering together with a representative from Metro.

The Board of D1/Koperasi had approved the JVA. 2050

From the facts and event timeline, I observed that:

The project never took off and expired for non-performance, as argued by the plaintiffs.

Also, from the event timeline, after more than (12) twelve years from 28.2.2003, the defendants purported to resuscitate the JVA by 2055 executing the impugned SJVA (15.05.2013) for the outright disposal of the impugned land at RM4.8m and supposedly with one residential unit each for the members at a 10% discount (exhibit P7).

The purported SJVA ended in a deadlock over the existence of several personal caveats registered over the impugned land by the plaintiffs 2060 that required a consent order (30.05.2017) to resolve the impasse with certain members only. The court soon revoked the consent order (13.03.2019), and it is no longer an issue before the court.

D1/Koperasi informed (28.03.2018) Metro that it no longer wishes to pursue the SJVA. D1/Koperasi unilaterally terminated it, and the 2065 RM4.8M with the stakeholder was returned.

From 2017-2019, the sub-lot purchasers filed civil suits against the defendants’ seeking remedies.

20.3 In Suits 567 and 68: 2070

It was alleged that Metro had colluded and conspired with D1/Koperasi and D2/Gopalakrishnan to defraud the plaintiffs of their beneficial proprietary interest in the impugned land. In SCK Group Bhd & Anor v Sunny Liew Pang & Anor [2010] 2 MLRA 541, CA, it was observed that for the tort of conspiracy, apart from 2075 the agreement between the parties, there must be an unlawful object in the equation, if not in itself unlawful, it must be brought by unlawful means. It was argued by Metro that:

In Suit 576, there was no plea for damages against Metro, only against D1/Koperasi and D2/Gopalakrishnan. 2080

There is no evidence that Metro had committed fraud, conspired, or colluded with D1 and D2 to defraud the plaintiffs.

The witness for Metro (DW2) admitted that the SJVA was an outright purchase of the impugned land and that he had no idea of the plaintiffs’ beneficial rights as they took over Metro through a management buyout 2085 from the previous owners sometime in 2008.

After the management buyout, all that DW2 knew was that the impugned land belonged to D1/Koperasi, which had members. DW2 pleaded ignorance of the existence of all the sub-lot purchasers. As far as he was concerned, the impugned land was unencumbered. 2090

The SJVA was entered because the members of D1/Koperasi wanted to cash out from the project as they needed money for old age and illness and to finance their children’s education. Metro claimed this evidence to be consistent with the evidence of PW4 that many members wanted to cash out due to old age. 2095

In dealing with this matter, Metro relied on the representation of D1/Koperasi and D2/Gopalakrishnan.

Any miscommunication between D1/Koperasi, D2/Gopalakrishnan and the members has nothing to do with Metro.

The members did not suffer actual damages as they are entitled to sell 2100 or assign their respective sub-lots.

The plaintiffs also pleaded deceit, dishonesty and equitable fraud against Metro. However, no compelling evidence was provided at the trial to establish the allegations. Metro merely acted on the 2105 information and representation made by the D1/Koperasi and D2/ Gopalakrishnan. Metro argued that:

The present management only acquired Metro in 2008. The JVA transaction concerning the impugned land was between the previous management and the defendants (D1/Koperasi & D2/Gopalakrishnan). 2110

The board of Koperasi had authorised the JVA with Metro.

At all material times, Metro did not know that the members of D1/Koperasi held beneficial interests in the impugned land, as D2/Gopalakrishnan did not mention it.

Metro claimed that the private caveats referred to in the SJVA were 2115 from disgruntled members of the D1/Koperasi and were their internal affairs.

Metro witness admitted in evidence that after taking over the management, it carried out a land search and discovered no issue with the impugned land but agreed that members have a share in the land, 2120 but none of the plaintiffs communicated directly with the Metro.

However, it was argued that D1/Koperasi had terminated the SJVA, causing the members to have an incomplete cause of action against Metro.

Metro had not committed any inappropriate acts in combination with 2125 D1/Koperasi and D2/Gopalakrishnan to injure the rights and benefits of the members/plaintiffs.

No tenable evidence has been adduced that showed common intention between the defendants concerning the tortious allegation against Metro that only came into the picture in 2002 (JVA) and 2013 (SJVA). 2130

Metro is agreeable to return the compensation monies (RM336,000) from the government for the land acquisition.

The members of D1/Koperasi have no privity of contract between Metro and D1/Koperasi. Therefore, they lacked any legitimate locus to take action against Metro. 2135

Metro had acted with D1/Koperasi, the registered proprietor of the impugned land, at all material times. It relied on the representation of D1/Koperasi and D2/Gopalakrishnan and did not know the beneficial rights of the members/plaintiffs in the preceding suits.

The SJVA (2013) was executed because the members were desirous 2140 of cashing out of the project envisaged on the impugned land. There is no evidence of the alleged conspiracy between Metro and D1/Koperasi over the impugned land.

Even though the sale and purchase considerations were 2145 undervalued in the SJVA. However, this was based on a willing seller and willing buyer basis. No independent valuation had been tendered to support the allegations of impropriety by the defendants. Nevertheless, the SJVA was aborted, leaving no cause of action for the transaction. The members did not suffer 2150 any damages in the circumstances.

The money owed to the plaintiffs for the land acquisition by the government in 2003 is an academic issue since Metro has conceded and is willing to deduct the sum of RM336,000 from 2155 their claim on D1/Koperasi.

20.4 Concerning Suits 212 and 219:

Metro argued that the plaintiffs have no cause of action against Metro as there is no privity of contract between the members and 2160 Metro, as their agreement was with D1/Koperasi. Dato’ Mohamad Shahul Hameed v Datin Mazita Osman [2023] 6 MLRA 232, CA observed that only parties to a contract incur rights and obligations under it. No one but the parties to an agreement can be bound or entitled under it, citing Boustead Naval 2165 Shipyard Sdn Bhd v Dynaforce Corporation Sdn Bhd [2015] 2 MLRA 348, CA.

In the present case, Metro argued that the SJVA was terminated before the Suits 212 and 219 filing, and the cause of action, if any, 2170 resides with D1/Koperasi and D2/Gopalakrishnan.

20.5 Concerning Suit 208, the plaintiffs raised issues that were not pleaded. Metro’s counsel was not afforded the reasonable opportunity to examine the contents of the documents relied on at the submission 2175 stage. In any event, Metro is not cited as a party in Suit 208, and therefore, the allegation therein is frivolous and irrelevant. In the circumstances, Metro prays that all claims against it be dismissed with costs. 2180 THE LAW [21] No Expectations in Law on Fraud: In Lai Fee & Anor v Wong Yu Vee & Ors [2023] MLRA 495, FC, the Federal Court was asked to determine three questions of law 2185 concerning fraudulent/insolvent trading by a company against another (s.540 Companies Act 2016 suit):

One of the questions was whether Lord Kerr's position in the English Supreme Court position taken in Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13, namely, “...that 2190 the law does not expect people to arrange their affairs on the basis that other people may commit fraud,” representative of the position of Malaysian law?

Ruling that what was done by the impugned company/officers of 2195 the company was dishonest according to the ordinary standards of reasonable people, the Federal Court allowed the appeal and reversed the decision of the Court of Appeal.

In one of its determinations, the Federal Court observed:

The principle that the law did not expect people to arrange 2200 their affairs on the basis that others might commit fraud was not inconsistent with the principle of free consent under the Contracts Act 1950.

Parties entering into a contract whilst accepting the risks and omissions in the preceding negotiations would assume the 2205 honesty and good faith of the other. As such, contracts entered into were presumed to be valid and enforceable.

However, once it was established that the consent to an agreement was caused by coercion, fraud, or misrepresentation, the contract was no longer automatically 2210 valid and enforceable. Such a contract was voidable by operation of law s.19(1) of the Contracts Act.

It was voidable at the option of the innocent party, i.e., the innocent party might elect to set aside the contract or insist that it should be performed under s.19(2). 2215

The fact that the Act started on the footing that a contract was valid and enforceable underscored the premise that parties might commit fraud.

Indeed, parties engaged in negotiations to enter into a commercial contract conducted themselves on the 2220 expectation of honesty, good faith, and fair dealing.

That expectation was essential to commerce, which depended critically on trust. Absent such an assumption, there would not be any agreement.

Accordingly, Question 3: 2225 Was the position by Lord Kerr in the English Supreme Court case Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13; [2020] EWHC 2791 (Ch), namely, “...that the law does not expect people to arrange their affairs on the basis that other people may commit fraud” representative of 2230 the position of Malaysian law? It is in the affirmative. Fraud need Not be Pleaded as Prescribed in Textbooks: [22] The Federal Court in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd 2235 & 2 Ors [2021] MLJU 393, FC, concerning fraud under s.540 Companies Act 2016 to lift or pierce the corporate veil, opined that fraud need not be pleaded in the form “prescribed in textbooks with a formal plea of fraud followed by the particulars”. It suffices if the salient facts pointing to fraud or equitable fraud have been set out in the 2240 pleading. Factual Matrix to be Considered [23] In a nutshell, the legal principles that can be distilled are:

23.1 Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 2245

Where an agreement is not regulated by statute, parties are at complete liberty, under the doctrine of freedom of Contract, to agree on any terms they think fit.

The court's role is to interpret the Contract sensibly (a 2250 commercially sensible construction). See Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC.

The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. 2255

A contract breaker must pay damages to the innocent party. However, if he has made any payment under a contract (not being an actual deposit for the purchase of movable or immovable property), the contract breaker is entitled to have that payment set off against the damages he has to pay. However, he cannot seek 2260 to recover any benefit he may have conferred upon the innocent party where he is guilty of breach of Contract. If it were not for this, a contract breaker could take advantage of his wrong. This is against the principle and the policy of the law.

The Federal Court cited Attorney General of Belize v. Belize 2265 Telecom Limited [2009] UKPC 11, where when delivering the Advice of the Board, Lord Hoffmann said: “The Court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute, or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is only 2270 concerned with discovering what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is 2275 addressed: see Investors Compensation Scheme Ltd V West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument.” 2280

A contract is to be interpreted under the following guidelines:

A Court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix forming the background of the transaction. 2285

The factual matrix that forms the transaction's background includes all material reasonably available to the parties.

The interpreting Court must disregard any part of the background declaratory of subjective intent only.

The Court should adopt an objective approach when 2290 interpreting a private contract.

23.2 The Federal Court in Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC observed that the principles of construction to be applied are that the parties' intentions are gathered 2295 from the language used. They are presumed to have intended what they say. The standard universal principle is that an agreement ought to receive that construction, which its language will admit, that will best effectuate the parties' intention to be collected from the whole arrangement. The Courts are to give effect to the terms of the Contract 2300 (if any).

23.3 The Federal Court in Apex Pharmacy Holdings Sdn Bhd v Chee Chin [1984] 2 MLJ 287, FC ruled that if an agreement is void by s.66 Contracts Act 1940, the innocent party is entitled to restitution. 2305 However, if an agreement is voidable at the option of the innocent party, then by section 76, he would be entitled to damages and restitution. The High Court in Chye Fook v The Teng Seng Realty Sdn Bhd [1989] 1 MLJ, HC observed that a party who rescinds a contract is entitled to compensation for any damage which he has 2310 sustained through the non-fulfilment of the contract:

Repudiation: Section 40 of the Contracts Act 1950 deals with a breach of contract that amounts to its repudiation:

Effect of refusal of a party to perform promise wholly 2315 When a party to a contract has refused to perform or disabled himself from performing his promise in its entirety, the promisee may end the contract unless he has signified, by words or conduct, his acquiescence in its continuance. 2320 It can occur when:

A party refuses to perform/disable himself from performing his promise.

When a contract is broken due to breach, the innocent party can end it or affirm its continuance. 2325

The innocent party must accept the repudiation and terminate the contract.

If he does not, the contract remains in existence, and the innocent party must continue to perform his part of the contract; if he does not, he will be in breach, and the 2330 wrongdoer can elect to rescind the impugned contract.

The general principles governing repudiatory breach under section 40 of the Contracts Act 1950 were espoused by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept 2335 Sdn Bhd [2010] 1 CLJ 269, FC where it bears repeating that the starting point in an action for breach of contract is for the court to determine who is the innocent party and who is the guilty party; and the next question would be whether the innocent party is entitled to terminate the contract for breach and claim for damages 2340 under s.40 CA 1950, or whether the innocent party can rescind the contract ab initio and claim for restitution.

A party refuses to perform when he indicates to the other party, either by conduct or in express terms, an intention not to proceed 2345 with the contract. This amounts to repudiation of the contract or his obligations under the contract.

The Court of Appeal in Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1997] 1 AMR 89; 2350 [1997] 1 CLJ 287, CA laid down the following principles:

In every contract, some terms are of fundamental importance and others of lesser or minor importance. The law creates this distinction to determine the kind of remedy for the innocent party.

(ii) Where the term flouted is fundamental to the contract, the innocent 2355 party is entitled to treat himself as being discharged from further obligations under it.

(iii) Conversely, where the obligation that has been breached is only subsidiary or minor, the innocent party may not treat himself as being free of his obligations under the contract; he may, however, sue and 2360 recover damages for the non-performance of the subsidiary term.

(iv) A party who terminates a contract or treats it as having come to an end in reliance upon the breach of a non-fundamental term is himself guilty of breach of contract.

Whether a term is fundamental to the contract or merely a term of 2365 subsidiary importance depends very much on how the contract is constructed. Constructive Trust [24] Arises by operation of law and does not depend on the intention of the 2370 parties, whether express or presumed. It is also said to arise by the conduct of the parties:

24.1 The Federal Court in Khor Keuk Jin v Haji Yasin & Ors [1976] 2 MLJ 70, FC, followed the principle set out by the English Court of Appeal in Soar v Ashwell [1893] 2 QB 390, CA at 400 that: 2375 “Generally speaking, a person who is not the appointed trustee and whom it is sought to affect with a trust because of his conduct is not a trustee at all, although he may be liable as if he were, which is commonly expressed by saying that he is not an express but a constructive trustee.” 2380

24.2 The effects of a decree of constructive trust not only impact a defendant by depriving him of beneficial ownership of an asset or a proportion of it; it can also affect third parties who may have received trust property, as the decree can be dated back to the happening of the event that gave rise to the equitable interest claimed by way of a 2385 constructive trust.

24.3 The Federal Court Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ 64, FC, linked the imposition of a constructive trust with the concept of unconscionability: 2390

A constructive trust arises by operation of law irrespective of the parties' intention.

In circumstances where the trustee acquires property for the benefit of the beneficiary, it is unconscionable for him to assert his beneficial interest in the property and deny the beneficial interest 2395 of another.

Being bereft of any beneficial interest and with equity fastened upon his conscience, he cannot transfer any interest to himself, let alone a third party. If he does, then a constructive trust comes into existence. 2400

An aggrieved party, by equitable remedy, may demand restitution of the property if he has been deprived of his beneficial interest.

24.4 The Federal Court in Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd [2017] MLJU 1107, FC, where the following 2405 principles were distilled:

As a matter of law, a constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his beneficial interest in the 2410 property and deny the beneficial interest of another.

A constructive trust is a trust which is imposed by equity to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties: Hassan Kadir & Ors v Mohamed Moidu Mohamed & Anor [2011] MLJU 1556; 2415 [2011] 5 CLJ 136, FC.

A constructive trust is a remedial device to prevent unjust enrichment. It takes the title to the property from one person whose title unjustly enriches him and transfers it to another who has been wrongly deprived of it: Tay Choo Foo v Tengku Mohd 2420 Saad Tengku Mansur & Ors. And Another Appeal [2009] 1 MLJ 289; [2009] 2 CLJ 363, CA. Breach of a Fiduciary Duty [25] A decree of constructive trust can be imposed when a fiduciary duty 2425 can be identified, and a breach of that duty is proven:

The concept of a fiduciary is defined in the Specific Relief Act in the context of trust principles.

Section 2 of the Specific Relief Act defines a “trust” as including “every species of express, implied or constructive fiduciary 2430 ownership,” and a “trustee” as including “every person holding, expressly, by implication or constructively, a fiduciary character.” The Federal Court in Takako Sako v Ng Pek Yuen & Anor [2010] 1 CLJ 381, FC said that a fiduciary relationship could be imposed by the Court: 2435

The fiduciary can exercise some discretion or power over the matter.

Such discretion or power can affect the beneficiaries' legal or practical interests.

The beneficiaries are vulnerable to, or at the mercy of, the 2440 fiduciary that holds such discretion or power.

25.1 The Federal Court in Gurbachan Singh a/l Bagawan Singh & Ors v Vellasamy a/l Pennusamay & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN 35553, Lot 9108, 2445 Mukim Hutan Melintang, Hilir Perak) [2015] 1 MLJ 773, FC held:

The first and second appellants owed and breached the fiduciary obligations to the respondent purchasers and thereby were unjustly enriched.

The court held that the first appellant must account for the profit 2450 he acquired in breach of fiduciary obligations.

The first appellant must pay the respondent damages to be assessed, taking into account the respondent’s shares that they would have acquired and the profits flowing from the estate land sale. 2455

However, it was inequitable for the purchasers to take the whole estate land and/or profit without incurring expenses to obtain them, which has to be deducted from the assessed damages and profits. At the Court of Appeal, Abdul Malik Ishak JCA stated the no profit, and 2460

25.2 The Federal Court in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik Bin Syed Mohamed & Anor [2008] 5 MLJ, FC, that was cited and followed by the Federal Court in Solid Investments Ltd v Alcatel Lucent (M) Sdn Bhd [2014] 3 CLJ 73. 2465 In a nutshell, it was observed:

A fiduciary is someone who has undertaken to act for or on behalf of another in a relationship of trust and confidence.

In such circumstances, the principal is entitled to the loyalty of his fiduciary. 2470

The fiduciary may not act for his or a third person's benefit without the principal's informed consent.

The various obligations of a fiduciary merely reflect different aspects of his core duties of loyalty and fidelity.

It gives rise to a legitimate expectation that equity recognises that 2475 a fiduciary will not use his position adversely to the principal's interest. Conspiracy to Defraud [26] The Court of Appeal in Manzer Medical Sdn Bhd & Ors v Bongsor 2480 Bina Sendirian Bhd [2018] 1 LNS 897, CA and Tow Kong Liang & Ors v FBO Land (Setapak) Sdn Bhd [2018] 1 LNS 243, CA observed in a conspiracy to defraud:

There must be an agreement (not necessarily a written or express). 2485

A combination of two or more parties.

There must be a common intention to carry out an unlawful purpose or to do a lawful act by unlawful means.

The acts must be performed in furtherance of the agreement with that common intention and 2490

Causing damage to the plaintiff. Standard of Honesty [27] The Privy Council held in Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 All ER 333, PC that: 2495

It is the objective test to be adopted in determining the standard of honesty.

The ‘subjective’ element in the combined test only meant that the person’s knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of 2500 honest conduct. In the present cases, the conduct of the defendants, as the facts had disclosed, is undoubtedly dishonest. They had blatantly breached the trust they were to uphold. 2505 FINDINGS [28] I have examined all-cause papers, the evidence or the lack thereof at the trial, and the parties' submissions. Considering my observations in the totality of the evidence and my observations in the parties' respective arguments and in light of the legal position in paragraphs 2510 [21]-[27], in addition to, it is my considered determination from that totality of the evidence that the plaintiffs have by a greater weight in evidence discharged their burden to establish their claim against D1, D2 and Metro as set out in their respective SoCs. The defendants, by and large, failed to produce compelling or persuasive evidence to tilt 2515 the evidential scale in their favour.

28.1 I am guided by the Federal Court that ruled:

In Lai Fee & Anor v Wong Yu Vee & Ors [2023] MLRA 495, FC, there can be no expectation in fraudulent matters. The law does 2520 not expect people to arrange their affairs because others may commit fraud, and it is not inconsistent with the principle of free consent under the Contracts Act 1950.

Indeed, parties engaged in negotiations to enter into a commercial contract conducted themselves on the foundation of honesty, 2525 good faith, and fair dealing. That foundation was essential to commerce, which depended critically on trust. Without such an assumption, there would not be any agreement.

In Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & 2 Ors [2021] MLJU 393, FC, observed that in pleading fraud, it suffices 2530 if the salient facts pointing to fraud or equitable fraud have been set out in the pleading.

28.2 I am equally guided by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC: 2535

That the starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. In coming to this determination, a Court interpreting is entitled to look at the factual matrix forming the background of the transaction. The factual 2540 matrix of the transaction's background includes all material reasonably available to the parties. A breach occurs when a party to a Contract expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his obligations. 2545

After considering all-cause papers, the bundles of documents, and the parties’ respective submissions, it is clear that the defendants have no legal basis for denying the plaintiff’s claim. The totality of the pertinent facts gathered and established at the trial of this action leaves no room for doubt-the defendants are 2550 liable in the present suits. Their breach of fiduciary duty is evident. The standard of honesty, as outlined in the Privy Council’s decision in Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 All ER 333, PC, provides further support for this conclusion. 2555

The objective test is the standard to be adopted in determining honesty. This test ensures that the person's knowledge of the transaction is such that his participation is not contrary to normally acceptable standards of honest conduct. 2560

The ‘subjective’ element in the combined test only meant that the person’s knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. 2565 28.3 The Court of Appeal in Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff bin Shah Mohd & Ors [1996] 2 MLJ 265, CA, has observed that the Parliament in s.2 of the Specific Relief Act, and the courts have refrained from laying down any strict rules for determining whether a particular relationship is fiduciary. The approach is flexible, 2570 the door is never closed, and the category is never exhaustive. It is a case-by-case basis, depending on the standard of “commercial morality” in the jurisdiction. It ultimately is a question of judicial policy, showcasing the adaptability of our legal system. 2575 28.4 In making my determination in all the suits before me:

I also observed the Federal Court in Takako Sako v Ng Pek Yuen & Anor [2010] 1 CLJ 381, FC that a fiduciary relationship could be imposed by the Court where the fiduciary exercises some discretion over the matter that can affect the vulnerable 2580 beneficiaries' legal or practical interests who are at the mercy of the fiduciary.

The Federal Court in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik Bin Syed Mohamed & Anor [2008] 5 MLJ, FC, was cited and followed by the Federal 2585 Court in Solid Investments Ltd v Alcatel Lucent (M) Sdn Bhd [2014] 3 CLJ 73, FC:

A fiduciary is someone who has undertaken to act for or on behalf of another in a relationship of trust and confidence.

In such circumstances, the principal is entitled to the loyalty 2590 of his fiduciary.

The fiduciary may not act for his or a third person's benefit without the principal's informed consent.

The various obligations of a fiduciary merely reflect different aspects of his core duties of loyalty and fidelity. 2595

It gives rise to a legitimate expectation that equity recognises that a fiduciary will not use his position adversely to the principal's interest.

28.5 In examining the factual matrix and circumstances of the present 2600 cases:

I observed the Court of Appeal in Guan Teik Sdn Bhd v Hj Mohd Noor bin Hj Yakob & Ors [2000] 4 MLJ 433, CA that the Court must not only weigh such evidence on a balance of probabilities but must also consider the surrounding circumstances and 2605 evaluate contemporary documents that may tend to establish the truth or otherwise of a given fact.

The Federal Court ruled in Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC that the principles of construction to be applied are that the parties' intentions are to be 2610 gathered from the language used. [29] It is trite in law that all cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case. The Federal Court in Johara Bi bt. Abdul Kadir Marican v. Lawrence 2615 Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC ruled that it was all a matter of proof and that until and unless the plaintiff has discharged the burden on a balance of probabilities, it did not shift to the defendant. 2620 [30] I have duly considered the plaintiffs' arguments, which, amongst others, are in paragraphs [6], [9], [12], [13], [17], and 17.1. The salient arguments are:

30.1 The rights of the sub-lot purchasers acquired under clause 15 (e) of the SLPAs would be vacant possession with title to individual 2625 bungalow-sized sub-lots once D1/Koperasi under the administration of D2/Gopalakrishnan successfully undertakes the conversion and sub-division of the impugned land. This is the fundamental intention of parties entering into the sub-lot land scheme devised up by D2/Gopalakrishnan and four other original vendors. 2630

30.2 The plaintiffs, in participating in this sub-lot scheme, relied entirely on the fundamentally similar representations in the SLPAs in which D2/Gopalakrishnan is also a signatory. It was not coincidental that D1/Koperasi was nominated to hold the impugned land for the benefit 2635 and interest of the sub-lot purchasers where D2/Gopalakrishnan is the secretary seeing to the administration of D1 at all material times.

30.3 Once the impugned land was registered in the name of D1/Koperasi sometime in 1979, D1 and D2, in those foregoing circumstances, owe 2640 fiduciary duties to the plaintiffs while the sub-lot purchasers maintain their beneficial right over the undivided share in the impugned land. D1 and D2 always acknowledged that the sub-lot purchasers had a beneficial interest in the purchased sub-lots. In Takako Sako v Ng Pek Yuen & Anor [2010] 1 CLJ 381, FC observed that a fiduciary 2645 relationship could be imposed by the Court where:

The fiduciary can exercise some discretion or power over the matter.

(ii) Such discretion or power can affect the beneficiaries' legal or practical interests.

(iii) The beneficiaries are vulnerable to, or at the mercy of, the fiduciary that holds 2650 such discretion or power. The three elements stated by the Federal Court apply in the present suits. The concept of a fiduciary can be found in the Contracts Act 1950 under s.16(1) and s.16(2): Datuk Jaginder Singh & Ors v Tara 2655 Rajaratnam [1984] 1 MLJ 175; [1983] 2 MLJ 196, FC; [1986] 1 MLJ 105, PC. [31] The impugned land is held upon trust for the plaintiff and other sub-lot purchasers, whom, in the circumstances, imposed fiduciary duties on 2660 D1 and D2 as the guardian of the beneficial interest of the plaintiffs in the sub-lot scheme that had entered into. Since then (1978/1979), nothing happened. What was agreed to and promised in the SLPAs was never delivered to the plaintiffs and other sub-lot purchasers that are not before the Court: 2665

Approximately twenty-five years later (28.02.2003), since 1978/1979, D2 suddenly called for a meeting of the sub-lot purchasers at the MIC headquarters, purportedly to brief them on the progress of the sub-lot scheme devised twenty-five years ago with no progress in sight. 2670

D2/Koperasi informed the plaintiff after an enquiry on the status of the impugned land sub-lot scheme at the office of D1/Koperasi that to enable the transfer, the plaintiff or his survivor must be a registered nominal member of D/Koperasi. I find this legally untenable since the impugned land was entrusted to D1 on trust 2675 for the plaintiffs and other sub-lot purchasers.

Consequently, premised on that representation by D2, a nominal membership fee was paid in Mei 2003. Since then, no other progress report has been forthcoming from D1 and D2 of the devised sub-lot lot scheme, and all inquiries have been to no avail. 2680

The compulsory acquisition of a small portion of the impugned land and the compensation paid for it were covertly concealed from the plaintiffs and the other sub-lot purchasers where it was allowed by D1/Koperasi and D2/Gopalakrishnan to be taken by Metro under the JVA (2002), knowing fully well of the existence of 2685 the sub-lot purchasers.

It reflects deceitful manipulation by the defendants.

It is shocking that the plaintiffs and other sub-lot purchasers, after waiting for 25 years at this juncture, could not see the conversion and sub-division of the impugned land carried out to bring into 2690 effect the intent under the SLPAs.

Conversion and subdivision cannot take 25 years, let alone 45 years total in this case.

It is my belief from the facts of the case that this is entirely by the design of D1/Koperasi as the vehicle and D2/Gopalakrishnan, 2695 who manages it and is complicit in it.

31.1 The supposed calling of the 2003 gathering after 25 years was to inform the plaintiffs and other sub-lot purchasers of an intent to enter into a JVA with Metro, when in fact, it was already executed in August 2002, 2700 unknown to and without the agreement of the plaintiffs and other sub-lot purchasers:

I agree with the facts presented that the attendees at the supposed gathering were asked to sign letters or documents without any appropriate disclosure of what they were signing to 2705 validate the JVA in 2002. The impropriety of the conduct of the defendants was glaring.

Five years later, in 2008, D3/Metro announced they could not proceed with the JVA, which had lapsed for total non-performance by then. 2710

D1, D2 and Metro:

In the circumstances, having actual and or constructive notice of the beneficial rights of the plaintiffs and other sub-lot purchasers.

In 2013, another scheme was devised using the SJVA to dispose of the impugned land held on trust by D1 to Metro at a grossly undervalued 2715 price of RM4.8M when the actual market value was much higher. Arguing otherwise is untenable.

The covert manner in which it was carried out speaks volumes of fraudulent intent on the plaintiffs and other sub-lot purchasers.

There was never any genuine effort to protect the beneficial interests of 2720 the plaintiffs and other sub-lot purchasers.

The facts establish commercial manipulation and greed to the utter disregard of the plaintiffs and other sub-lot purchasers who at that juncture, were already waiting for their entitlement for thirty-five years since 1978/1979. 2725

By now, the period has extended to approximately 45 years, with some of the sub-lot purchasers having already passed away.

The manipulation is utterly unjust. The injustice must be remedied, and D1 and D2 cannot be allowed to unjustly profit or enrich themselves from the impugned land they hold in trust. 2730

As the facts revealed, the impropriety of all the defendants acting in concert against the intent of the plaintiffs and other sub-lot purchasers in the SLPAs using the SJVA as the instrument was eventually foiled by legal intervention and private caveats. 2735 [32] Facts and circumstances showed that Metro, from the outset of their involvement prior to or in 2002 JVA, expressly or constructively knew about the history of the impugned land and the beneficial rights and interests of the sub-lot purchasers being in the business of land development. To claim total ignorance is legally unacceptable from the 2740 facts of the case. I find Metro to be a party that is acting in concert with D1 and D2. In examining the totality of the evidence by the parties at the trial:

I have no hesitation in finding that the plaintiffs in the respective suits have discharged their burden. I see ample evidence to cite 2745 the defendants with liability over the impropriety, breach of trust, and breach of fiduciary duty in the impugned land debacle.

It cannot be denied from the facts before me that the conduct by the defendants acting in concert was designed without considering the sub-lot purchasers' rights and benefits under the 2750 SLPAs.

D2/Gopalakrishnan, acted with utter disregard for 45 years of adversity on the rights, benefits and interests of the sub-lot purchasers under the SLPAs, that parties are bound to honour. 2755 [33] It is my considered judgment, anchored on the preceding principles by the Federal Court, that I find with no hesitation the plaintiffs in all Suits above have discharged their burden of proof by a greater weight in evidence that had tilted the scale in their favour.

The adverse conduct and impropriety of the defendants' actions 2760 are irrefutable.

Consequently, the burden now lies on the defendants to negate the plaintiffs' evidence. [34] By and large, I am disinclined to believe the version of facts from 2765 D1/Koperasi, D2/Gopalakrishnan, and Metro to negate the plaintiffs' facts. I had duly considered their arguments, as seen in paragraphs [19] and [20], and I find them lacking in merits.

34.1 In considering their arguments and the plaintiffs, among others, I 2770 observe that:

After the signing of the SLPAs (1978-1979): the successful collection of the purchase consideration to pay the balance purchase price by the original five vendors to the land owner, and the impugned land registered in the name of D1/Koperasi (1979) 2775 as agreed to in the SLPAs, absolutely nothing of material substance could be seen to be done by D1/Koperasi and D2/Gopalakrishnan to achieve the objective agreed to in the SLPAs for 24/25 years:

The SLPAs contain representations to which 2780 D2/Gopalakrishnan was a signatory as one of the five original vendors and acted as the secretary to D1/Koperasi.

Clause 10 allows the parties to register the impugned land in the name of D1/Koperasi as the registered owner but with the sub-lot purchasers holding beneficial interests. I do not find 2785 the coincidental in the least.

D1/Koperasi, as a creature of statute (Cooperative Societies Act), had the election of choices whether to accept or reject that nomination.

D1/Koperasi accepted being entrusted with the impugned 2790 land for the benefit of the sub-lot purchasers. Therefore, it has a legal duty to observe the covenants as a fiduciary in such circumstances, the breach of which would attract legal consequences.

I take note that that none of the sub-lot purchasers elected to sue 2795 for total failure of consideration. One would think that the hope of owning a bungalow lot size land from the impugned land scheme kept the hope alive for most, even though for 24/25 years had passed, with no updates on the project's status.

It was only after D1/Koperasi and D2/Gopalakrishnan, as the 2800 secretary of D1, struck a deal (JVA-200, after 24/25 years) that they called for a gathering in 2003 to attempt to validate/ratify the JVA with Metro that was entered covertly, and unknown to the sub-lot purchasers. The terms of the JVA mattered to D1/Koperasi as it could profit handsomely from the percentage of the mixed 2805 development envisaged in the expired JVA. That by any measure or standard, departs from the original intent of the SLPAs 24/25 years ago. That ad-hoc gathering could hardly be called a meeting when the legal formalities of a meeting were absent. Such conduct is inconsistent with the three fundamental prohibitions on 2810 a fiduciary and trustee of the impugned land.

Metro cannot claim ignorance since its representative was present at the gathering (Alex Ong) in 2003. The present owner's due diligence audit of Metro would have obtained the information before the purported management buyout/takeover. 2815

The court is not concerned with Metro's owner/shareholders/management, but Metro itself, as a separate legal entity, will be deemed in such circumstances to have actual notice/constructive notice of the encumbrances on the impugned land. Prudence dictated that as a land developer, all land issues 2820 would have been investigated before the JVA in 2002. To suggest otherwise is unreasonable, considering that millions of Ringgits are involved in the planned mixed development.

The only positive thing happening with the impugned land was the compulsory acquisition of a small portion of it by the federal 2825 government to facilitate the construction of part of the Silk Highway. RM336,000.00 in compensation was paid.

However, via the JVA, that compensation was given to Metro for whatever reasons that primarily only three parties knew about it: D1/Koperasi, D2/Gopalakrishnan, and Metro. Why they were in 2830 concert on the issue remained unexplained. The sub-lot purchasers were utterly in the dark.

The offer by Metro to supposedly return the said RM336,000.00 to DI/Koperasi (though they asserted that they did not receive the money) is also unexplained. 2835

Where the RM336,000.00 ended, as far as the proceedings go, remains an unanswered issue. If Metro claims it did not receive it,

who did? and (ii) why is Metro interested in paying for it? That would pose legal challenges to their accounts, auditors, and the Companies Act 2016. 2840

I am guided by the Court of Appeal in Manzer Medical Sdn Bhd & Ors v Bongsor Bina Sendirian Bhd [2018] 1 LNS 897, CA and Tow Kong Liang & Ors v FBO Land (Setapak) Sdn Bhd [2018] 1 LNS 243, CA observed in a conspiracy to defraud:

There must be an agreement (not necessarily a written or 2845 express).

A combination of two or more parties.

There must be a common intention to carry out an unlawful purpose or to do a lawful act by unlawful means.

The acts must be performed in furtherance of the agreement 2850 with that common intention and

Causing damage to the plaintiff.

From the facts, the JVA expired for non-performance sometime in 2008 and was admitted by Metro. All went dark after that for 2855 another five years. The sub-lot purchasers were back in the dark as they had been thirty years ago.

In 2013, five years from 2008 (thirty-five years from 1978), D1/Koperasi, D2/Gopalakrishnan, and Metro came back with the SJVA guised to resuscitate the expired JVA (2002) allegedly to 2860 benefit the sub-lot purchasers, when in fact, it was an undervalue outright disposal of the impugned land to Metro for RM4.8M/RM6.250m contrary to the wishes of the sub-lot purchaser under the SLPAs. This fact must be read with the background facts in 2002 to appreciate it better. 2865

Exhibits P27, P28, P30 and P31 that has not been negated by rebuttal evidence shows the valuation and inaction conduct by D1/Koperasi and D2/Gopalakrishnan over the impugned land. D2 admitted that D1 never acted on the contents of those exhibits.

Contrary to the assertions of D1/Koperasi and 2870 D2/Gopalakrishnan, they never acted in the best interest of the sub-lot purchasers. Metro claimed that the undervalued price for the impugned land was between a willing seller and a willing buyer could never be taken as in the best interest of the sub-lot purchasers. 2875

Such inadequacy of consideration to the total disregard of the sub-lot purchasers can vitiate consent in fraud, duress or coercion cases, though the SJVA has now been aborted. Considering the background facts in the foregoing, I do not accept such an argument. 2880

Entrusted with the impugned land for the benefit of the sub-lot purchasers, D1/Koperasi and D2/Gopalakrishnan did not act in the best interest of the sub-lot purchasers for forty-five years. I find support in Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff bin Shah Mohd & Ors [1996] 2 MLJ 265, CA, where 2885 Gopal Sri Ram JCA said:

Whether a particular set of circumstances ought to attract a fiduciary duty is a question of judicial policy.

(ii) It depends upon the standard of commercial morality that the courts of a particular jurisdiction may choose to impose upon 2890 parties to a transaction, considering the cultural background and circumstances of the society in which they function.

(iii) And as in so many other areas of the law, our courts' views may differ from those expressed by the courts of other jurisdictions. 2895

(iv) Our courts may impose a fiduciary duty in circumstances in which the courts of another jurisdiction may decline to find the existence of such a duty.

It is open to our courts to find the existence of a fiduciary duty to reflect our standards, which, in particular cases, may prove 2900 to be higher than those imposed by judges in other jurisdictions. I find no hesitation in the circumstances of the case that D1/Koperasi, D2/Gopalakrishnan, and Metro owe fiduciary duties to the sub-lot 2905 purchaser, and they have, from the facts, breached that duty.

34.2 The Court of Appeal’s position on resulting/constructive trust was cited in Loo Hon Kong v Loo Kim Lim [2004] 4 CLJ 1, CA, which observed that the plaintiff, having paid the entire purchase price for the land, the 2910 act of registering the land in the name of the defendant merely vested the nominal legal ownership in the latter. The beneficial ownership rests with the plaintiff. In Yong Nyee Fan & Sons Sdn Bhd v Kim Guan & Co Sdn Bhd [1979] 1 MLJ 182, FC, the Federal Court observed that constructive trust is a trust imposed by equity to satisfy 2915 the demands of justice and good conscience. It arises in a similar situation where a person acquired the property in such circumstances that the legal title holder may not retain the beneficial interest in good conscience. 2920 34.3 The defendants failed to convince me with compelling evidence to establish merit in their proffered defence. In this regard, the attempted position taken by the defendants that the SLPAs are strictly between the sub-lot purchasers and the five original vendors does not concern D1 is untenable in the circumstances. It is inconsistent with the facts. I 2925 take cognisance of what was espoused by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC that we have to look at the factual matrix forming the background of the transaction. This factual matrix gives a clear view of the scheme of things that envelop the defendants and how they are 2930 parties in concert by any measure or standard. CONCLUSION [35] All things considered, I am allowing the claim in Suits 68, 567, 208, 212, and 219, with costs. I will address the prayers in the respective 2935 suits separately:

35.1 Final Judgment is entered in Suit 68. It is hereby ordered that: Paragraph 53, L2:

Prayer (i) is granted with variation. 2940 D1, D2, and D3/Metro are restrained from executing instruments to convey legal ownership of the impugned land to Metro or any third party.

Prayer (ii) is granted with variation. D1 and D2 are restrained from taking any further steps or proceedings to 2945 cause the transfer of the impugned land to Metro or any third party.

Prayer (iii) is granted with variation. A declaration is hereby granted that D1 and D2 are trustees of the impugned land and hold the same for the deceased’s estate or the plaintiff as the 2950 administrator.

Prayer (iv) is granted with variation. A declaration is granted that the undivided share of the impugned land is vested in the deceased's estate. 2955

Prayer (v) is granted with variation. A declaration is granted that the deceased’s estate is the beneficial owner of the undivided share in the impugned land. 2960

Prayer (vi) is denied. Transferring the undivided share of the impugned land to the deceased’s estate is unnecessary since the land will be sold, and proceeds will be distributed accordingly. 2965

Prayer (vii) granted. A declaration is granted that the SJVA is null and void, and any transfer arising thereunder is invalid because of fraud in failing to secure the approval of the estate of the deceased. 2970

Prayer (viii) is granted with variation. A declaration is granted that any purported transfer of legal ownership of the impugned land by D1 and D2 is null and void in the absence of the approval of the plaintiff because of fraud. 2975

Prayer (ix) is granted with variation. An order is granted that the Land Administrator/Land Registrar of the State of Selangor/Selangor Land Office and Mines nullify and cancel any purported transfer of the impugned land to D3/Metro. 2980

Prayer (x) is denied. Since the impugned land is to be sold and the proceeds to be distributed accordingly, there is no necessity to register the deceased’s estate as a co-proprietor of the impugned land. 2985

Prayer (xi) is granted. D1 and D2 are ordered to account for money had and received for the compulsory acquisition of the land and the revenue from the sale of rubber produced on the impugned land. 2990

Prayer (xii) is granted. General damages are to be assessed against D1, D2 and D3.

Prayer (xiii) is granted. Exemplary damages will be assessed and awarded against D2 and 2995 D3/Metro.

Prayer (xiv) is granted with variation. Costs are awarded against the defendants, and it is further ordered that they be paid to the plaintiff within 30 days from the date hereof. 3000

Prayer (xii) is granted. And it is further ordered that:

An order is hereby granted that D1, D2 and D3 are forthwith restrained from dealing in the impugned land in any manner 3005 save to effectuate the intent of this order.

An order is hereby granted for the sale of the impugned land by public tender at the appropriate current market value of the impugned land:

The plaintiff will submit a current valuation from certified 3010 valuers of the present impugned land value for the Court to fix the reserve price within 30 days from the date hereof.

(ii) All costs and expenses incurred in the disposal exercise of the impugned land will be met by the sub-lot 3015 purchasers and reimbursable from the sale proceeds.

(iii) From a verified list of sub-lot purchasers by the Court, the net sales proceeds would be distributed accordingly to the percentage of their entitlement as stated in the list.

(iv) The plaintiff is ordered to submit to the Court within 30 3020 days from the date hereof: (aa) A list of certified registered Public Trustees for the court to select and appoint to take necessary action to advertise in any local newspapers or accessible media for the remaining sub-lot purchaser, to oversee the public auction of the 3025 impugned land, to receive the proceeds from the sale, to attend to the conveyance of the land, to distribute the proceeds of the sale accordingly to the verified sub-lot purchasers after deducting or reimbursing all appropriately incurred expenses and costs. 3030 (bb) The Public Trustee will retain any balance remaining of the sales proceeds until it is lawfully claimed or for any period stipulated under the Unclaimed Money Act 1965.

(cc) Thereafter, any balance left unclaimed shall be transmitted forthwith to the Government of Malaysia under the 3035 Unclaimed Money Act 1965 and shall be treated accordingly by Jabatan Akautan Negara Malaysia under the prevailing law.

An order is hereby granted that all or any encumbrance, such as caveats on the impugned land by any of the parties herein, 3040 shall be removed immediately to effectuate the intent of this order.

An order is hereby granted that if the circumstances require it, or where the relevant parties refuse to execute any documents or instruments necessary to carry out the sale and 3045 conveyance of the impugned land, the learned SAR/DR of the High Court is empowered to execute those documents in substitution thereof.

The compensation sum from the compulsory acquisition of a portion of the impugned land shall be distributed accordingly 3050 among the sub-lot purchasers under their entitlement.

It is hereby ordered that this order be endorsed with a penal notice under O.45, r.7(4) RC 2012 to ensure compliance by any or all parties concerned herein.

Interest of 5% on any judgment sum on damages, if any. 3055

35.2 Final Judgment is entered in Suit 567. It is hereby ordered that: Paragraph 41, L2:

Prayer (i) is granted with variation. D1 and D2 are restrained from executing any instruments to convey legal 3060 ownership of the impugned land to Metro or any third party.

Prayer (ii) is granted with variation. D1 and D2 are restrained from taking any further steps or proceedings to cause the transfer of the impugned land to Metro or any third party. 3065

Prayer (iii) is granted with variation. A declaration is hereby granted that the plaintiff is a legitimate beneficial owner of the undivided share of the impugned land. 3070

Prayer (iv) is granted with variation. A declaration is granted that the SJVA is null and void, and any purported transfer thereof in the absence of the approval of the plaintiff is invalid by reason of fraud. 3075

Prayer (v) is granted with variation. A declaration is granted that any agreement executed by D1 or D2 to carry out a transfer of the legal ownership of the impugned land without the approval of the plaintiff is null and void because of fraud. 3080

Prayer (vi) is granted with variation. An order is granted that the Land Administrator/land Registrar of the State of Selangor or the Selangor Land Office and Mines nullify and cancel any purported transfer of the impugned land to Metro. 3085

Prayer (vii) is denied. Since the impugned land is to be sold, there is no necessity to register the plaintiff as a co-proprietor of the land.

Prayer (viii) is granted with variation. 3090 The defendants are ordered to account for money had and received for the compulsory acquisition of the land and the revenue from the sale of rubber produced on the impugned land.

Prayer (ix) is granted with variation. 3095 General damages are to be assessed against D1 and D2.

Prayer (x) is granted with variation. Exemplary damages are to be assessed and awarded against D2. 3100

Prayer (xi) is granted with variation. Costs are awarded against the defendants, and it is further ordered that it be paid to the plaintiff within 30 days from the date hereof.

Prayer (xii) is granted. 3105 And it is further ordered that:

An order is hereby granted that D1 and D2 are forthwith restrained from dealing in the impugned land in any manner save to effectuate the intent of this order.

An order is hereby granted for the sale of the impugned land 3110 by public tender at the appropriate current market value of the impugned land:

The plaintiff will submit a list of certified valuers for the court to select. The certified valuers will value the present impugned land value for the Court to fix the 3115 reserve price within 30 days from the date hereof.

(ii) All costs and expenses incurred in the disposal exercise of the impugned land will be met by the sub-lot purchasers and reimbursable from the sale proceeds.

(iii) From a verified list of sub-lot purchasers by the Court, 3120 the net sales proceeds would be distributed accordingly to the percentage of their entitlement as stated in the list.

(iv) The plaintiff is ordered to submit to the Court within 30 days from the date hereof: (aa) A list of certified registered Public Trustees for the court to 3125 select and appoint to take necessary action to advertise in any local newspapers or accessible media for the remaining sub-lot purchaser, to oversee the public auction of the impugned land, to receive the proceeds from the sale, to attend to the conveyance of the land, to distribute the 3130 proceeds of the sale accordingly to the verified sub-lot purchasers after deducting or reimbursing all appropriately incurred expenses and costs. (bb) The Public Trustee will retain any balance remaining of the sales proceeds until it is lawfully claimed or for any period 3135 stipulated under the Unclaimed Money Act 1965.

(cc) Thereafter, any balance left unclaimed shall be transmitted forthwith to the Government of Malaysia under the Unclaimed Money Act 1965 and shall be treated accordingly by Jabatan Akautan Negara Malaysia under the prevailing 3140 law.

An order is hereby granted that all or any encumbrance, such as caveats on the impugned land by any of the parties herein, shall be removed immediately to effectuate the intent of this order. 3145

An order is hereby granted that if the circumstances require it, or where the relevant parties refuse to execute any documents or instruments necessary to carry out the sale and conveyance of the impugned land, the learned SAR of the High Court is empowered to execute those documents in 3150 substitution thereof.

The compensation sum from the compulsory acquisition of a portion of the impugned land shall be distributed accordingly among the sub-lot purchasers under their entitlement.

It is hereby ordered that this order be endorsed with a penal 3155 notice under O.45, r.7(4) RC 2012 to ensure compliance by any or all parties concerned herein.

Interest of 5% on any judgment sum on damages, if any.

35.3 Final Judgment is entered in Suit 208. It is hereby ordered that: 3160 Paragraph 52-53, L2:

Prayer (A) is granted with variation. A declaration is hereby granted that D1 holds the impugned land on trust or constructive trust for the plaintiffs in their respective number of undivided shares. 3165

Prayer (B) is granted with variation. An order is hereby granted for the sale of the impugned land by public tender at the appropriate current market value, and the proceeds are distributed according to their respective contributions or interests. 3170

Prayer (C) is granted with variation. The defendants are hereby ordered to surrender and deliver any pertinent documents and accounts on the compulsory acquisition of the portion of the impugned land. 3175

Prayer (D) is granted with variation. The defendants are ordered to furnish an account of all monies had and received in respect of the impugned land since 1978, including the compulsory compensation. 3180

Prayer (E) is granted with variation. The compensation sums from the compulsory acquisition of a portion of the impugned land shall be distributed among the plaintiffs according to their entitlement. 3185

Prayer (F) is granted against D1 and D2 with variation as follows:

A declaration is granted that P1 is the beneficial owner of the impugned land.

(ii) Denied. 3190 Since the land is to be sold, it is not necessary to register P1 as a co-proprietor.

(iii) Denied. Vacant possession is not required since the land is to be sold.

(iv) Denied. 3195 There is no necessity for the defendants to pay for the value of P1’s sub-lot since the land is to be sold and the proceeds distributed accordingly.

Prayer (G) is granted against D1 and D2 with variation as follows: 3200

A declaration is granted that P2/the deceased's estate is the beneficial owner of the impugned land.

(ii) Denied. Since the land is to be sold, it is not necessary to register the P2/estate of the deceased as a co-proprietor. 3205

(iii) Denied. Vacant possession is not required since the land is to be sold.

(iv) Denied. There is no necessity for the defendants to pay for the value of P1/estate of the deceased sub-lot since the land will be sold, and the 3210 proceeds will be distributed accordingly.

Prayer (H) is granted. General damages are to be assessed.

Prayer (I) is granted. 3215 Exemplary damages are to be awarded against the defendants.

Prayer (J) is granted with variation. 5% interest is awarded on any judgment sum on damages, if any. 3220

Prayer (K) is granted with variation. Cost is awarded against the defendants, with a further order that it shall be payable to the plaintiffs within 30 days of this order.

Prayer (L) is granted 3225 It is further ordered that:

The plaintiffs:

Will submit a list of certified valuers for the court to select. The certified valuer will present the impugned land value for the Court to fix the reserve price within 30 days from 3230 the date hereof.

(ii) All costs and expenses incurred in the disposal exercise of the impugned land will be met by the sub-lot purchasers and reimbursable from the sale proceeds.

(iii) From a verified list of sub-lot purchasers by the Court, 3235 the net sales proceeds would be distributed accordingly to the percentage of their entitlement as stated in the list.

(iv) The plaintiffs are ordered to submit to the Court within one month from the date hereof: 3240 (aa) A list of certified registered Public Trustees for the court to select and appoint to take necessary action to advertise in any local newspapers or accessible media for the remaining sub-lot purchaser, to oversee the public auction of the impugned land, to receive the proceeds from the sale, to 3245 attend to the conveyance of the land, to distribute the proceeds of the sale accordingly to the verified sub-lot purchasers after deducting or reimbursing all appropriately incurred expenses and costs. (bb) The Public Trustee will retain any balance remaining of the 3250 sales proceeds until it is lawfully claimed or for any period stipulated under the Unclaimed Money Act 1965.

(cc) Thereafter, any balance left unclaimed shall be transmitted forthwith to the Government of Malaysia under the Unclaimed Money Act 1965 and shall be treated accordingly 3255 by Jabatan Akautan Negara Malaysia under the prevailing law.

An order is hereby granted that D1, D2 and D3/Metro are forthwith restrained from dealing in the impugned land in any manner save to effectuate the intent of this order. 3260

An order is hereby granted that all or any encumbrance, such as caveats on the impugned land by any of the parties herein, shall be removed immediately to effectuate the intent of this order.

An order is hereby granted that if the circumstances require 3265 it, or where the relevant parties refuse to execute any documents or instruments necessary to carry out the sale and conveyance of the impugned land, the learned SAR/DR of the High Court is empowered to execute those documents in substitution thereof. 3270

It is hereby ordered that this order be endorsed with a penal notice under O.45, r.7(4) RC 2012 to ensure compliance by any or all parties concerned.

35.4 Final Judgment is entered in Suit 212. It is hereby ordered that: 3275

Prayer 1 is granted with variation. A declaration is hereby granted that D1 holds the impugned land as a bare trustee for the sub-lot purchasers in their respective number of undivided shares. 3280

Prayer 2 is granted with variation. A declaration is hereby granted that the sub-lot purchasers hold the beneficial interest in the impugned land. 3285

Prayer 3 is granted with variation. An order is hereby granted for the sale of the impugned land by public tender at the appropriate current market value, and the proceeds are distributed according to the trust. 3290

Prayer 4 is granted with variation. The defendants are hereby ordered to surrender and deliver any pertinent documents and accounts on the compulsory acquisition of the portion of the impugned land. 3295

Prayer 5 is granted with variation. The defendants are ordered to furnish an account of all monies had and received concerning the impugned land, including the compulsory compensation. 3300

Prayer 6 is granted. General damages shall be assessed before the High Court against the defendants.

Prayer 7 is granted. 3305 Interest at 5% is awarded on any judgment sum on damages, if any.

Prayer 8 is granted with variation. Cost is awarded against the defendants, with a further order that it shall be payable to the plaintiffs within 30 days of this order. 3310

It is further ordered that:

The plaintiffs:

Will submit a list of certified valuers for the Court to select. The certified valuers will value the present 3315 impugned land value for the Court to fix the reserve price within 30 days from the date hereof.

(ii) All costs and expenses incurred in the disposal exercise of the impugned land will be met by the sub-lot purchasers and reimbursable from the sale proceeds. 3320

(iii) From a verified list of sub-lot purchasers by the Court, the net sales proceeds would be distributed accordingly to the percentage of their entitlement as stated in the list.

(iv) The plaintiffs are ordered to submit to the Court within 30 days from the date hereof: 3325 (aa) A list of certified registered Public Trustees for the court to select and appoint to take necessary action to advertise in any local newspapers or accessible media for the remaining sub-lot purchaser, to oversee the public auction of the impugned land, to receive the proceeds from the sale, to 3330 attend to the conveyance of the land, to distribute the proceeds of the sale accordingly to the verified sub-lot purchasers after deducting or reimbursing all appropriately incurred expenses and costs. (bb) The Public Trustee will retain any balance remaining of the 3335 sales proceeds until it is lawfully claimed or for any period stipulated under the Unclaimed Money Act 1965.

(cc) Thereafter, any balance left unclaimed shall be transmitted forthwith to the Government of Malaysia under the Unclaimed Money Act 1965 and shall be treated accordingly 3340 by Jabatan Akautan Negara Malaysia under the prevailing law.

An order is hereby granted that D1, D2 and D3 are forthwith restrained from dealing in the impugned land in any manner save to effectuate the intent of this order. 3345

An order is hereby granted that all or any encumbrance, such as caveats on the impugned land by any of the parties herein, shall be removed immediately to effectuate the intent of this order.

An order is hereby granted that if the circumstances require 3350 it, or where the relevant parties refuse to execute any documents or instruments necessary to carry out the sale and conveyance of the impugned land, the learned SAR/DR of the High Court is empowered to execute those documents in substitution thereof. 3355

The compensation sums from the compulsory acquisition of a portion of the impugned land in 2003 shall be distributed accordingly among the sub-lot purchasers under their entitlement.

It is hereby ordered that this order be endorsed with a penal 3360 notice under O.45, r.7(4) RC 2012 to ensure compliance by any or all parties concerned herein.

I find no merit or legal foundation for D1’s counterclaim against P4 and P5. It is accordingly dismissed with cost. 3365 35.5 Final Judgment is entered in Suit 219. It is hereby ordered that: Paragraph 45, L2:

Prayer 1 is granted with variation. A declaration is hereby granted that D1 holds the impugned land as a bare trustee for the sub-lot purchasers in their respective number of undivided 3370 shares.

Prayer 2 is granted with variation. A declaration is hereby granted that the plaintiffs are the beneficial owners of the impugned land. 3375

Prayer 3 is granted with variation. An order is hereby granted for the sale of the impugned land, and it is further ordered that the sale shall be carried out by public tender at the appropriate current market value, and the proceeds are distributed according to the trust. 3380

Prayer 4 is granted with variation. The defendants are hereby ordered to surrender and deliver any pertinent documents and accounts on the compulsory acquisition of the portion of the impugned land. 3385

Prayer 5 is granted with variation. The defendants are ordered to furnish an account of all monies had and received regarding the impugned land, including the compulsory compensation. 3390

Prayer 6 is granted with variation. An account of what is due to the plaintiffs concerning the compensation from the compulsory acquisition of the impugned land.

Prayer 7 (a) & (b) is denied. 3395 In the circumstances of the foregoing orders, the registration of the plaintiffs as co-proprietors is not required.

Prayer 8 is granted. General damages shall be assessed before the High Court against the 3400 defendants.

Prayer 9 is granted with variation. Interest at 5% is awarded on any judgment sum on damages, if any. 3405

Prayer 10 is granted with variation. Cost is awarded against the defendants, with a further order that it shall be payable to the plaintiffs within 30 days of this order.

It is further ordered that: 3410

The plaintiffs:

Will submit a list of certified valuers for the court to select. The certified valuers will value the present impugned land value for the Court to fix the reserve price within 30 days from the date hereof. 3415

(ii) All costs and expenses incurred in the disposal exercise of the impugned land will be met by the sub-lot purchasers and reimbursable from the sale proceeds.

(iii) From a verified list of sub-lot purchasers by the Court, the net sales proceeds would be distributed accordingly 3420 to the percentage of their entitlement as stated in the list.

(iv) The plaintiffs are ordered to submit to the Court within thirty days from the date hereof: (aa) A list of certified registered Public Trustees for the court to 3425 select and appoint to take necessary action to advertise in any local newspapers or accessible media for the remaining sub-lot purchaser, to oversee the public auction of the impugned land, to receive the proceeds from the sale, to attend to the conveyance of the land, to distribute the 3430 proceeds of the sale accordingly to the verified sub-lot purchasers after deducting or reimbursing all appropriately incurred expenses and costs. (bb) The Public Trustee will retain any balance remaining of the sales proceeds until it is lawfully claimed or for any period 3435 stipulated under the Unclaimed Money Act 1965.

(cc) Thereafter, any balance left unclaimed shall be transmitted forthwith to the Government of Malaysia under the Unclaimed Money Act 1965 and shall be treated accordingly by Jabatan Akautan Negara Malaysia under the prevailing 3440 law.

An order is hereby granted that D1, D2 and D3 are forthwith restrained from dealing in the impugned land in any manner save to effectuate the intent of this order.

An order is hereby granted that all or any encumbrance, such 3445 as caveats on the impugned land by any of the parties herein, shall be removed immediately to effectuate the intent of this order.

An order is hereby granted that if the circumstances require it, or where the relevant parties refuse to execute any 3450 documents or instruments necessary to carry out the sale and conveyance of the impugned land, the learned SAR/DR of the High Court is empowered to execute those documents in substitution thereof.

The compensation sums from the compulsory acquisition of 3455 a portion of the impugned land in 2003 shall be distributed accordingly among the sub-lot purchasers under their entitlement.

It is hereby ordered that this order be endorsed with a penal notice under O.45, r.7(4) RC 2012 to ensure compliance by 3460 any or all parties concerned herein.

I find no merit or legal foundation for D1’s counterclaim against P1. It is accordingly dismissed with cost. 3465

35.6 On 16.07.2024, the learned counsels submitted on costs. I refer to O.59 r.2(2) Rules of Court 2012 which gives the court a wide discretion in the exercise of its power on cost. As such, after hearing the submissions of learned counsels, I awarded the following costs, which I deemed to be fair 3470 and reasonable:

Suit 68: Costs of RM60,000.00 Global against D1 & D2 & D3 (RM20,000.00 each).

Suit 567: 3475 Costs of RM60,000.00 Global against D1 & D2 (RM30,000.00 each).

Suit 208: Costs of RM60,000.00 Global against D1 & D2 (RM30,000.00 each). 3480

Suit 212: Costs of RM60,000.00 Global against D1, D2 & D3 (RM20,000.00 each). Costs of RM10,000.00 against D1 for the dismissal of the counterclaim.

Suit 219: 3485 Costs of RM60,000.00 Global against D1 & D2 (RM30,000.00 each) Costs of RM10,000.00 against D1 for the dismissal of the counterclaim. All costs shall be paid within thirty (30) days from the date hereof. 3490 Dated 23.09.2024 HAYATUL AKMAL ABDUL AZIZ 3495 JUDGE HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR Parties: 3500 Datuk Watson Peters together with Jude Peters, Andrea Tan, Charlotte Netto Messrs Peters Chambers Counsels for the Plaintiffs (suits: 567 & 68) 3505 Faid Naraendran together with Ivan Ang and Gaggendeep Singh Messrs Faid Naraendran & Partners Counsels for the Plaintiff (suit: 208) 3510 Nad Segaram together with Hiral Sanghvi Messrs Shearn Delamore & Co. Counsels for the Plaintiff (suit: 212) David Soosay together with Alani Farhah 3515 Messrs Bryan Perera Quah & Partners Counsels for the Plaintiff (suit: 219) Shalini Devi Messrs R V Lingam & Co. 3520 Counsel for Metro Esquire (M) Sdn Bhd (All Suits) Datuk S. Murugesan Messrs Murugesan Sinnandavar & Association Counsels for Koperasi Pekerja Jaya Bhd and Dt Gopalakrishnan a/l 3525 V.Subramaniam (All Suits)