Smb Resources Sdn Bhd v Lee Wai Tuck (WA-22NCC-509-10/2020)

P against the Defendants arose from an Company claims that the Defendants had made fraudulent misrepresentations and conspired to defraud P by inducing P into investing in the Company. After a full trial, I dismissed s claim. Here are my reasons.

The 1st D1 The 2nd Defendant is referred D2 The 3rd D3 The 4th Defendant is D4 Background facts

The background facts are set out below.

P decided to invest in 30 % shares of the Company and entered into a share sale agreement dated 11.11.2011 with D1 first P SSA ). D2 likewise invested in 30 % shares of the Company and entered into a separate share sale agreement dated 11.11.2011 with D1 first D2 SSA ). The first P SSA and the first D2 SSA first SSA

P was represented by a firm of solicitors, Messrs Illiayas, in the drawing up of the first SSA, which were executed on the same date. Under the first SSA, the parties agreed as follows :

Clauses 2.2 and 3.1 : P and D2 each agreed to purchase 30 % shares of the Company from D1 at the same purchase consideration of RM 4.8 million each.

(ii) Clause 7 : D1 guaranteed to both P and D2 that the Company would achieve a cumulative profit after tax of RM 7 million for the financial years 2012 and 2013. Failing which, D1 was required to pay the shortfall between the guaranteed profit and the actual cumulative profit, which would constitute a debt due from the D1 to the Company.

P and D2 subsequently entered into a shareholders agreement dated 15.11.2011 with D1 ( shareholders agreement ) to govern the management of the Company. The shareholders agreement was also drawn up by Messrs Illiayas. Pursuant to the shareholders agreement, P nominated PW1 (director and shareholder of P) to be appointed as a director of the Company with effect from 15.11.2011. Both P and D2 advanced substantial loans to the Company.

profits were low and did not perform as projected. P subsequently decided to exit from the Company, and negotiated a sale of its 30 % shares back to D1. Via a share sale agreement dated 16.5.2013 ( second P SSA ), D1 agreed to purchase 30 % shares in the Company at a purchase consideration of RM 7,717,578.

Similarly, D2 also decided to pull out from the Company. Via a share sale agreement dated 16.5.2013 ( second D2 SSA ), D1 agreed to purchase D2 % shares in the Company at a purchase consideration of RM 7,609,943. The second P SSA and the second D2 SSA are collectively referred to as the second SSA P again consulted Messrs Illiayas, and instructed them to draw up the second SSA.

According to clauses 3.2 and 3.3 of the second SSA, D1 would pay a nominal sum of RM 10 as deposit. The balance sum purchase price manner :

Immediately upon the successful listing of one PCC Asia PCC 1 shall pay P and D2 30 % of the total proceeds from the 30 % proceeds

(ii) If the 30 % proceeds is insufficient to settle the purchase price and : (aa) If it is less than RM 1.25 million, D1 shall pay the difference between the 30 % proceeds and the sum of RM 1.25 million within 12 months from the date of the second SSA. Subsequently the difference between the RM 1.25 million and the purchase price shall be paid within 18 months from the date of the second SSA; (bb) If it is equal to or more than RM 1.25 million, D1 shall pay the difference between the purchase price and the 30 % proceeds within 18 months from the date of the second SSA;

(cc) If the listing of PCC does not materialise within 12 months from the date of the second SSA, D1 shall pay the sum of RM 1.25 million within 12 months from the date of the second SSA (i.e. by 16.5.2014). The balance purchase price shall be paid within 18 months from the date of the second SSA (i.e. by 16.11.2014).

The listing of PCC did not materialise. D1 failed to pay the purchase price owed to both P and D2.

On 27.1.2016, D1 was adjudged bankrupt. Thereafter in October 2020, P commenced the present suit against the Defendants, alleging fraudulent misrepresentation and conspiracy to defraud. Issues to be tried

The agreed issues to be tried are : 1) Whether the 1st, 2nd, 3rd and / or 4th Defendants made fraudulent misrepresentations to the Plaintiff to induce the Plaintiff to invest and / or purchase shares in MDB Technologies (M) Sdn Bhd? In this regard, among others : a) Whether the 1st, 2nd, 3rd and / or 4th Defendants fraudulently position to the Plaintiff? b) Whether the 1st, 2nd, 3rd and / or 4th Defendants fraudulently misrepresented to the Plaintiff that MDB Technologies (M) Sdn Bhd will achieve a guaranteed cumulative profit of RM 7,000,000.00 for the years of 2012 and 2013? c) Whether the 1st and / or 2nd Defendant had never intended to honour the Share Sale Agreements dated 16.5.2013 and had only executed the said agreements to deceive the Plaintiff? 2) Whether the 1st, 2nd, 3rd and / or 4th Defendants have conspired to defraud the Plaintiff? 3) Whether the Plaintiff suffered losses resulting from matters stated in paragraphs 1 and / or 2 above? 4) Whether the Plaintiff is entitled to the reliefs claimed? 5)

The principal question here is whether the Defendants have made fraudulent misrepresentations to P in order to induce him to invest in the Company. My answer is in the negative. It is my finding that P simply not proven. The investment in the Company was a business misrepresentation and conspiracy to defraud against the Defendants are baseless.

D2, like P, was merely another investor in the Company. He too was unable to recover his investment in the Company from D1. Prior to the execution of the first SSA, it was D1 (not the other Defendants) who prepared and presented the projections and representations regarding the Company P was led by PW1, a seasoned corporate figure. P had the benefit of legal advice from Messrs Illiayas. P was capable of making its own commercial decision. The Defendants were in no position to mislead P.

At the material time, P (through PW1) had been appointed as a director of the Company. P was aware of the Company progress and financial condition. The Company ultimately did not perform as expected, and failed to achieve the projected profit guarantee. Both P and D2 subsequently decided to exit from the Company, and D1 agreed to buy back their respective shares. However, D1 failed to pay the purchase price, resulting in losses not only to P, but also to D2.

, if at all, lies against D1 for breach of the second SSA for recovery of the purchase price. P appears unable to accept the consequences of its unfortunate investment decision, and D1 purchase price.

The present suit, filed belatedly, is an afterthought aimed at recovering failed investment from all the Defendants, under the guise of allegations of fraudulent misrepresentation and conspiracy to defraud. in any event time - barred. Here is my explanation.

P s case is outlined below.

P was induced to invest in the Company by the fraudulent misrepresentations made by the 1st to 4th Defendants, acting in concert. These representations include :

that there existed a USD 200 million Maxis NGBB contract awarded to

(ii) that the Company had a Huawei subcontract Huawei subcontract revenue of RM 500,000 per month in 2011, which would increase to RM 1.5 million per month in 2012;

(iii) that the Company was a profitable company with viable and stable financial position;

(iv) that the Company would achieve a guaranteed cumulative profit of RM 7 million for the years of 2012 and 2013; and

that the Company had viable business prospects and engagements, which would support such financial performance.

P entered into the first SSA with D1 in reliance upon the representations.

D1 and / or D2 never intended to honour the first SSA, and had only executed the first SSA to deceive P.

P had suffered losses as a result of the 1st to 4th Defendants actions and fraudulent misrepresentations.

In amplification of the foregoing, P offered the following narrative. Prior relationship between PW1 and the 2nd Defendant

PW1 and D2 had become acquainted in the year 2011. D2 was the chairman and managing director of Frontken Corporation

Around October 2011, D2 approached PW1 and introduced an opportunity to co - invest with him on a 30 : 30 basis in a business involved in laying fibre optic cables for broadband. A meeting was held in October 2011 at a hotel in Kuala Lumpur, attended by D2, PW1 and P (one Abdul Ghani). First meeting and entry of Heads of Agreement

In reliance on D2 PW1 was persuaded to consider the investment and agreed to attend a meeting with the 1st to 4th Defendants. On 2.11.2011, the first meeting was held at . It was attended by PW1, Abdul Ghani, and the 1st to 4th Defendants. At this meeting, D1 represented that :

the Company was one of four partners of Huawei for fibre optic work under the Maxis NGBB project;

(ii) the Company 500,000 per month to RM 1.5 million per month; and

(iii) the Company would achieve a cumulative net profit of RM 7 million for the financial years 2012 and 2013, which D1 would guarantee.

P was presented with a Heads of Agreement which was prepared by D3. The 2nd to 4th Defendants assured PW1 that the Company was a profitable and successful company. In reliance on the representations, P, D2 and D1 entered into a Heads of Agreement on 2.11.2011. Both P and D2 paid an earnest deposit of RM 500,000 to D1. Subsequent meeting and due diligence

At a subsequent meeting on 4.11.2011, attended by the 1st to 4th Defendants as well as PW1 and his lawyer Mohamad Illiayas (PW2), D1 furnished documents, including an Information Memorandum and a master procurement agreement with Huawei, in support of the representations made at the earlier 2.11.2011 meeting.

PW2, However, D2 and D3 assured P that no such exercise was necessary as Frontken had already conducted due diligence on the Company. P relied on these assurances and did not perform its own due diligence prior to the execution of the first SSA.

On 11.11.2011, P executed the first P SSA with D1 for the acquisition of a 30 % equity in the Company at a purchase consideration of RM 4.8 million. D2 similarly executed the first D2 SSA with D1 for the acquisition of a 30 % equity in the Company at a purchase consideration of RM 4.8 million. Hence, the shareholding of the Company was held in the following manner:- (i) D1 = 40 %; (ii) P = 30 % ; and (iii) D2 = 30 %. Concealment and reassurances given

2013, P advanced a further sum of RM 2.29 million to the Company for working capital.

The actual financial performance of the Company did not live up to year 2012, the Company recorded revenue of RM 4,272,978 and a loss of RM 621,233, contrary to the projected profits.

Among the key representations made were that the Company had secured or was involved in substantial fibre optic work for Huawei under the Maxis NGBB project, and that the Company would achieve a guaranteed profit of RM 7 million. P subsequently discovered that the key representations relating to the Company the Maxis NGBB project were untrue. Nevertheless, D1 and D2 had reassured P on the Company obtaining other projects.

By mid - 2013, P sought to exit its investment and entered into the second SSA dated 16.5.2013 with D1. The second SSA was premised on representations that payment would be made from the proceeds of a proposed listing of PCC, which did not materialise. Discovery of fraud in the year 2015

On 7.5.2015, D1 admitted to PW1 that he and the other Defendants had acted in concert in relation to investment in the Company. P discovered that shortly after D1 received the purchase consideration of RM 4.8 million from P, substantial sums were distributed to the other Defendants. Namely:- (i) RM

2.4 million to D2; (ii) RM 1.35 million to D3; and (iii) RM 2.15 million to D4. These payments were made between 8.11.2011 and 11.12.2011.

P lodged a police report on 17.12.2015.

My finding is that P has failed to prove the above allegations by pleaded case, as will be explained below. The law on fraudulent misrepresentation and conspiracy to defraud

Fraudulent misrepresentation and conspiracy to defraud are inter related causes of action. Conspiracy to defraud is predicated upon the existence of an underlying act of fraud. Only where fraud is first established against one or more defendants, can a cause of action for conspiracy to defraud arise for consideration against the others. (See the High Court case of Hamzah bin Abdul Majid v Mohd Jalani bin Datuk Hj Mohd Sidek & Ors [2014] MLJU 1858 at [25]).

In order to establish a cause of action in fraudulent misrepresentation, P must prove the following elements:- (a) that a false representation was made; and (b) that the representation was made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false. (See the Federal Court case of Takaka Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 at 769).

What is vital in both fraudulent misrepresentation and conspiracy to defraud is the intention to deceive. The burden of proving the essential elements, including the intention to deceive, lies upon P. (See the Court of Appeal case of SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393 at [13]).

In the present case, the 2nd to 4th Defendants did not make any case, the alleged representations relate to:- (a) the projected revenue of the Company; and (b) the Huawei subcontract. However, those representations were made by D1, not the other Defendants. Further, the evidence shows that there was indeed work carried out for Huawei. P has failed to prove that such contract or work was fictitious or did not exist, as alleged. In short, none of the Defendants had made any fraudulent misrepresentation to P.

There is no credible evidence produced by P to support its allegation of fraud against the Defendants. As fraud has not been established, it follows that the allegation of conspiracy to defraud must likewise fail. The Court of Appeal in CIMB Bank Bhd v Veeran a/l Ayasamy [2015] MLJU 993 at [27] held : elements of fraud and / or conspiracy must be proved by clear, cogent and convincing evidence. There must be something more than mere failure or an omission on the part of the 3rd defendant. There can never be fraud and / or conspiracy cannot exist, where the intent to deceive does not exist PW ions destroyed the P

It is rather admissions under cross examination which are inconsistent with pleaded case. The following admissions are significant :

PW1 confirmed that the presentation about the Company business was made by D1, and not D2 (or for that matter, any of the other Defendants);

PW1 confirmed that the Information Memorandum was prepared by D1, and not D2 (or for that matter, any of the other

PW1 confirmed that there is no record showing that D2 (or for that matter, any of the other Defendants) had told P about the Huawei subcontract or the RM 1.5 million per month revenue projection;

PW1 confirmed that there is no documentary evidence of any due diligence conducted by Frontken;

PW1 admitted that there is no written record of any assurance made by D2 (or for that matter, any of the other Defendants) regarding the Company profitability:

PW1 confirmed that the projected revenue and profit figures were presented by D1 alone. The correspondence never recorded anything to the effect that D2 (or for that matter, any of the other Defendants) were the ones who made any presentation about the projected revenue and profit; and

PW1 confirmed that the profit guarantee was given solely by D1, and not D2 (or for that matter, any of the other Defendants).

- (a) it was D1, and not D2 (or for that matter, any of the other Defendants), who made the representations; and (b) there is no written or documentary evidence of any representation, assurance or guarantee by D2 (or for that matter, any of the other Defendants). against the Defendants rests entirely on bare oral assertions unsupported by contemporaneous documentation.

case. In particular :

PW2 admitted that he only joined the second meeting of 4.11.2011 midway. He did not attend the first meeting on 2.11.2011, contrary to the averment at paragraph 9 of the statement of claim. He therefore did not witness what transpired during the first meeting on 2.11.2011.

PW2 confirmed that P had the opportunity to conduct its own due diligence prior to signing.

[i.e. D3] immediately shot down my evidence, unsupported by any contemporaneous record. N , who would be expected to record such a significant event in writing.

D2 .11.2011, but 2 was present at the 4.11.2011 meeting is therefore disputed. / non - existent

Paragraph 21 of the re-re amended statement of claim avers : Almost concurrent with the 1st Technologies, the 1st Defendant connivingly devised a scheme with the 2nd, 3rd and 4th Defendants to entrap and lure the Plaintiff by fraudulently misrepresenting to the Plaintiff that Huawei Technologies had secured a USD 200 million contract with Maxis. As a result of which, MDB Technologies would have allegedly achieved a projected revenue of RM 22.2 million and RM

28.8 million in years 2012 and 2013 respectively and a guaranteed net profit after tax of RM 7 million for the years 2012 and 2013 combined. The representation thereof was made with the intention to support the 1st and 2nd unrealistic projected valuation of RM 16 million in respect of MDB Technologies as a whole. The massive inflation in the valuation of MDB Technologies demonstrates very clearly that the representations made by the 1st, 2nd, 3rd and 4th Defendants were not sustainable in that it represents an almost 37 - fold actual net tangible asset. These ability to generate a guaranteed net profit after tax of RM 7 million for the

Further, paragraph 26 of the re-re amended statement of claim avers that did not exist . The previous version of the statement of claim (prior to the amendment) Huawei Technologies was a mere fiction created to defraud the Plaintiff .

. To wit:-

that the Maxis NGBB contract and the Huawei subcontract did not exist; and (ii) that the revenue projections in the Information Memorandum were false and designed to inflate the Company I find that both propositions have been disproven - main evidence at Q&A 15 of his witness starement

In support of its pleaded case, PW1 made certain bare allegations at Q&A 15 of his witness s at the trial in relation to the alleged misrepresentations. PW1 stated : lice report and gave the Commercial Crime Investigation Department the schedule and cheque copies (ACB, pp. 192 - 199). From investigations that followed, I discovered that the information contained in the Information Memorandum was false, and : There was no USD 200 Million contract awarded to Huawei by Maxis The value of the subcontracted work to MDB by Huawei never approached RM 500,000 per month, much less RM 1.5 million; The Defendants supported such representations to induce the Plaintiff into paying out the RM

I consider that the evidence contained in Q&A 15 of PW1 statement misrepresentation, for the following reasons. Huawei confirmed the existence of the Maxis NGBB contract

subpoena evidence proves the very opposite of what it sought to establish. P had subpoenaed Huawei to give evidence at the representative affirmed a supplementary affidavit dated 10.2.2026 (Enclosure 270), which the parties agreed to accept as evidence at the trial Huawei affidavit

In paragraphs 5 and 7 of the Huawei affidavit, Huawei deposed as follows :

Paragraph 5 : The counsel for P had queried whether Huawei had in its records an agreement between Huawei and Maxis Bhd Maxis Maxis NGBB contract Huawei confirmed that it possesses a copy of the Maxis NGBB contract.

Paragraph 7 : Huawei had perused the Maxis NGBB contract, which contains confidential and commercially sensitive terms subject to confidentiality obligations. It was further stated that - contract is whether . Huawei confirmed that - NGBB c

The significance of the Huawei a by that evidence. The Court of Appeal in GS Gill Sdn Bhd v Descente Ltd and another appeal [2008] 6 MLJ 181 at 190 held : I will now take the third point. One of the witnesses called by the plaintiff to cross examination she testified that the sale to Isaac Leung was an over - the - counter transaction that took place in Kuala Lumpur and that it was not an export. The defendant says that her evidence supports its case to show that there was indeed no export at all. Now, it is axiomatic that in civil litigation a party is bound by the evidence of the witnesses he chooses to call. If the evidence of his witness is adverse to his case then his opponent is entitled to rely on that evidence in support of his own case. This is encapsulated in the phrase

The affidavit that the Maxis NGBB c Q&A 15 of his witness statement was no USD 200 million contract awarded to Huawei by Maxis . In short, P subpoenaed Huawei in an attempt to prove that the Maxis NGBB contract was fictitious, but instead obtained evidence confirming that the Maxis NGBB contract in fact exists. The contemporaneous documents confirm that the Company carried out work for Huawei

statement of claim that contract between MDB Technologies and Huawei Technologies did not exist his witness statement never approached RM , are likewise contradicted by the contemporaneous documentary evidence. Namely :

the master procurement agreement between Huawei and the Company, the existence of which is undisputed;

the Company did in fact carry out actual work for Huawei, as evidenced by numerous contemporaneous email updates;

Huawei itself complimented the work carried out by the

the Company achieved revenue of approximately RM 3.99 million as at September 2012 and approximately RM 4.2 million for the year 2012, which was derived substantially from Huawei related work; and

PW1 himself, in his capacity as a director of the Company, signed the Company , which reflected the Company aware of the revenue and work carried out for Huawei, and that he does not dispute that such work existed at the material time.

The evidence therefore establishes that:- (a) the Maxis NGBB contract was real and existed, as confirmed by Huawei itself under oath;

a master procurement agreement existed between Huawei and the Company; (c) the Company performed work under that master procurement agreement; (d) the Company earned revenue of approximately RM 4.2 million in the year 2012; and (e) Huawei complimented the Company

What did not materialise was the projected scale of work and revenue (namely RM 1.5 million per month and RM 22.2 million per year), as represented by D1 in the Information Memorandum. However, the failure of a business projection to materialise is a matter of commercial underperformance, not fraud. A projection is, by its nature, an estimate of future performance. It is not a guarantee of actual results. P, through PW1 - a seasoned businessman acting with the benefit of legal advice - knew or ought reasonably to have known this. PW Q&A 15 of his witness statement are bare assertions unsupported by evidence

PW1 asserts that from the investigations which followed the police report lodged in December 2015, he discovered that the Information Memorandum was false. However, PW1 did not produce any record from the police investigation to substantiate the purported discovery. There is:-

no police investigation report; (b) no statement from Huawei or Maxis confirming the alleged non - existence of the USD 200 million Maxis NGBB contract; and (c) assertion that the information in the Information Memorandum was false.

On the contrary, the only evidence from Huawei before the court - namely the Huawei a - confirms that the Maxis NGBB contract exists. Accordingly, P cannot establish fraud, which requires clear, cogent and convincing evidence. The police investigation yielded no criminal prosecution

Despite the lodging of the police report on 17.12.2015 and the investigation that followed, no criminal prosecution was commenced against any of the Defendants. The absence of any criminal prosecution, notwithstanding a police investigation, fortifies my finding that there is no fraud or conspiracy.

In the premises, Q&A 15 of PW1 , which more than bare assertions. Those assertions are:- (a) own subpoena evidence from Huawei, confirming that the Maxis NGBB contract exists; and (b) contradicted by contemporaneous documents demonstrating actual work, actual revenue and positive feedback from Huawei. What P is truly aggrieved about is the Company ow revenue and profit, which is a matter of business underperformance, not fraud. The Company the share acquisition - the Plaintiff knew that the Company was not a profitable and thriving company

In Q&A 10 of his witness statement, PW1 asserts : profitable and thriving company ,

inducement. However, this assertion is contradicted by the contemporaneous documentary evidence. The C own financial figures disclosed to the Plaintiff showed that it was not profitable and thriving

The Information Memorandum, which was presented by D1 to P prior to the execution of the first SSA, disclosed the following financial figures of the Company in the financial year 2011 : FY 2011 (Actual) ______________________________ Revenue RM 2.3 million Profit After Tax

A company generating revenue of RM 2.3 million with a profit after tax of merely RM 92,000 cannot, by any objective measure, be described as a profitable and thriving company. Those figures were disclosed in the very document which P now claims to have relied upon. If P, through PW1, as a seasoned businessman acting on legal advice, had read the Information Memorandum, he would have seen those figures and would have known that the Company was, as at 2011, a small company with modest revenue and negligible profit. It is therefore improbable that P was assured or induced to believe that the Company was already a profitable and thriving company,

What the Information Memorandum did contain were projections of substantially higher revenue and profit for the financial year 2012 onwards, namely projected revenue of RM 22.2 million and projected profit after tax of RM 3.081 million for the financial year 2012. However, these were expressly described as projections, which are forward looking estimates of future performance and not statements of existing fact. This distinction is fundamental. A projection is, by its nature, an estimate subject to uncertainty and business risk. That is why D1 provided a personal profit guarantee to protect P, in the event the projections were not achieved.

T - MDB Contract with Huawei Malay follows :

Huawei has been awarded a USD 200 mil fiberlization contract from Maxis.

Currently, MDB only undertakes about RM 500,000 job per month from Huawei, where Huawei has approached MDB to step up monthly work to RM 1.5 million.

To meet delivery of RM 1.5 mil work per month, MDB need to increase its manpower and equipment immediately.

This slide is significant for two reasons.

First, the Information Memorandum itself disclosed that the Company was only undertaking about RM 500,000 per month not RM 1.5 million per month.

The RM 1.5 million figur the Company about. To wit, a future prospect, not a present reality. Any reasonably competent businessman - let alone one as experienced as PW1 who has been in business since the 1980s - would understand this distinction.

Second, the Information Memorandum expressly stated that in order to achieve the RM 1.5 million per month target, the Company immediately . This is an express acknowledgment, within the very document relied upon by P, that the Company did not yet possess the operational capacity to deliver RM 1.5 million worth of work per month. The RM 1.5 million figure was therefore contingent upon the Company successfully scaling up its manpower and equipment, which is what the shareholders loans of RM 5.4 million under the shareholders agreement were intended to fund.

D1 confirmed that the Company needed capital injection for manpower and equipment to grow. When cross - examined about the RM

1.5 million per month projection, D1 gave a detailed explanation that attributes the C s inability to achieve the projected revenue to the need for capital, manpower and equipment. The shareholders agreement required massive capital injection - proof that the Company was not already profitable

The shareholders agreement, which was drawn up solicitors, required P and D2 to provide shareholders loans totalling RM

5.4 million to the Company for the following purposes : Time Amount Purpose By 30.11.2011 RM 1 million Repayment of third party loan By 30.11.2011 RM 400,000 Working capital By 31.1.2012 RM 1 million Purchase of equipment Feb 2012 - Dec 2012 RM 3 million Working capital Total RM 5.4 million

If the Company was truly a profitable and thriving company, as PW1 now asserts the Defendants had represented, there would have been no need for the new shareholders to inject RM 5.4 million in loans for basic operational requirements such as:- (a) repayment of existing debts; (b) working capital; and (c) purchase of equipment. The existence of this clause - - demonstrates that all parties, including P, knew and accepted that the Company was not yet a profitable and self sustaining business. But rather a company with potential that required substantial capital to grow.

A profitable and thriving company does not need RM 1 million to repay third party loans, RM 400,000 for working capital, and a further RM 3 million for ongoing working capital from its new shareholders. P s own contractual documents cannot support its claim that it was induced to believe that the Company was already profitable.

the Information Memorandum did not represent that the Company was already generating RM 1.5 million per month, or that it was a profitable and thriving enterprise. On the contrary, it disclosed that:- (a) the Company 500,000 per month; (b) the RM 1.5 million figure was a future target contingent upon a proposed step up by Huawei; (c) the Company would need to increase manpower and equipment in order to achieve that target; and (d) this is consistent with the shareholders agreement, which required P and D2 to inject RM 5.4 million in capital to enable this expansion. P cannot now claim to have been deceived into believing that the Company was profitable and thriving, when the documents it relied upon stated otherwise. This is not a genuine case of fraud - it is merely a failed business investment

The evidence adduced at the trial manifest that this matter is nothing more than a failed investment. misrepresentation and conspiracy to defraud, are inherently improbable. The 2nd Defendant is also an investor who suffered losses

In the first place, D2 himself is also an investor who had invested substantial sums into the company. As a co - investor, D2 bore the same investment risk as P and likewise suffered losses. The payments made by D2 were from his own resources for the benefit of the Company. They included not only the initial investment and shareholders loans (which were contractually required), but also voluntary expenditures beyond contractual obligation. For instance, a payment of RM 76,115 for KWSP penalties in 2017, four years after D2 had exited the Company.

A fraudster does not continue paying a c years after investing in the company. Such conduct is more consistent with that of a genuine investor attempting to support the business and its employees. Simply put, it makes no commercial sense to suggest that D2 was involved in a conspiracy to defraud P. If D2 was a conspirator with the other Defendants, he would not have invested RM 4.8 million of his own money into the same company on identical terms as the alleged victim. A conspirator seeking to defraud P would not have exposed himself to the same risk of loss. If D2 knew that the investment was a sham, there would have been no reason for him to advance RM 2.17 million in shareholders loan to keep the Company operational.

These were not token sums. They represented financial commitments from D s own resources. A conspirator would attempt to extract funds, not inject funds, into the company. Yet the evidence demonstrates the opposite, where D2 continuously injected funds and even settled s liabilities at his own expense. D2 - from investing RM 4.8 million, advancing loans, and settling the Company liabilities the Company - is more consistent with that of a co - investor who suffered losses when the business underperformed, rather than a conspirator acting dishonestly.

P s loss arose from commercial underperformance, not fraud. The fact that D2 also suffered loss is material. It demonstrates that the loss complained of by P was not the product of any fraudulent scheme directed at P, but rather arose from the ordinary commercial failure and underperformance of the business venture. The projected revenue of RM

22.2 million per year and RM 1.5 million per month from Huawei did not materialise. The Company achieved only RM 4.2 million in revenue for the year 2012, with a loss of RM 621,000. This underperformance affected all investors, i.e. P and D2, equally.

There is no law that allows a disappointed investor to re - characterize a failed investment as fraud, merely because the venture did not yield the expected returns. Here, there is no evidence of any intention to deceive by the Defendants. The Plaintiff had the benefit of legal advice

Secondly, P had the benefit of legal advice. P was represented by its solicitors, Messrs Illiayas. As mentioned earlier, all the agreements entered into by P, namely the first SSA, the shareholders agreement, and the second SSA, were drawn up . P therefore had the opportunity to obtain legal advice, propose terms, negotiate protections, seek clarification on any matters of concern, and decline to proceed unless satisfied with the terms of the transaction.

P was led by PW1, who testified that he had been involved in business since the 1980s and was a seasoned businessman with experience in corporate deals. P was therefore not an inexperienced or vulnerable party unfamiliar with commercial transactions. But a sophisticated investor represented by counsel and capable of understanding, negotiating and evaluating the transaction documents and the attendant commercial risks. It seems to me that P was in a more advantageous position than D1 and D2 during the discussions and negotiations concerning the terms relating to the sale and purchase of the shares, as well as the drawing up of the relevant agreements. In this regard, the following authorities are instructive.

In Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 MLJ 309 at 326, the Court of Appeal held : executed such documents freely and without protest, and this is not a case where the appellants were rushed into executing the documents within a limited span of time but that such execution were done over a period of into entering into contractual obligations which they now say are unconscionable. This is so as they had received consideration for each agreement that they had

In Tan Sri Halim Saad v Tan Sri Nor Mohamed Yakcop & Ors [2014] 11 MLJ 379 at 397, the High Court said : defendant that this explanation is inconsistent with the contemporaneous documents based on the following grounds :

apart from being an experienced businessman himself, the plaintiff was being advised by Tan Sri Rashid Manaf and Messrs Shearn Delamore & Co. There is no doubt that with such prominent and experienced lawyers advising him, the plaintiff would have expressly reserved his rights in his letter dated 13 May 2003, if there was indeed such a substantial residual

P cannot credibly contend that it entered into the transaction blindly, passively, or in reliance solely upon any alleged representations made by the Defendant admissions demonstrate that P approached the investment with the benefit of legal advice and knowledge of the contractual framework l representation, it is implausible for P to now suggest that it was misled into entering the relevant agreements by reason of any fraudulent statement made by the Defendants.

It is therefore improbable that P was induced by any assurance to enter into the investment. P knew that the Company was a company with potential, but one that required substantial funding. P had contractual protections in place (namely the profit guarantee), in the event the projected performance did not materialise. This was a calculated commercial investment decision involving risk, and not a case where P was deceived by alleged fraudulent assurances. The Plaintiff decided to invest in the Company because of the personal guarantee given by the 1st Defendant

Thirdly, PW1 confirmed during cross - examination that one of the reasons why P decided to invest in the Company was because of the personal guarantee given by D1, as encapsulated in paragraphs 5 and 6 of the Heads of Agreement, and subsequently in clause 7 of the first SSA. PW1 was aware that MDB might not achieve the profit as guaranteed and that there was a possibility that MDB might not achieve the profit , which is why the profit guarantee clause existed.

P was aware, at the time it chose to proceed with the investment, that the expected profitability of the Company for the years 2012 and 2013 was specifically addressed through an agreed contractual mechanism. Namely D1 guaranteed profit. P therefore entered into the transaction with eyes open, appreciating both the commercial expectation as to profits and the contractual safeguard which it considered sufficient to protect its position. deception, but by an express contractual term consciously negotiated and accepted by PW1 as part of the bargain.

A claim in fraudulent misrepresentation requires proof that P was dishonestly misled into entering the transaction by a false representation of fact. In the present case however, P knew of the profit projection, understood the contractual mechanism for addressing any shortfall, and accepted that mechanism as part of its reason for proceeding. The alleged representation was therefore neither hidden nor deceptive, but was expressly embodied in the contractual documents themselves. PW1 was aware of the Company

Fourthly, PW1 was aware of the Company business performance. Amongst others :

PW1 confirmed during cross - examination that he attended the Company board meetings.

D1 had, from time to time, regularly sent emails updating both P and D2 on the Company including its income and profitability. For example :

In an email dated 4.11.2012, D1 updated both PW1 and D2 on the status of management accounts as at September 2012, including the balance sheet and income statement (January to September 2012). The income statement shows that the Company had achieved revenue of approximately RM 3.99 million as at September 2012.

(ii) In the same email, D1 to fund working capital for the coming months.

(iii) By an email dated 30.7.2013, D1 circulated to both P and D2 the draft audit report for the financial year ended December 2012. In the finalised version, it can be seen that the Company achieved revenue of approximately RM 4.2 million for the year 2012.

These documents were put to PW1 during cross - examination and he confirmed that he was aware of the Company performance. Indeed, PW1 himself signed the financial reports as one of the Company directors. He further confirmed that he had access to the Company , and could verify the Company work if he wished to do so.

PW1 would also from time to time request the Company to report to him. He would request that the board meetings of the Company sites and monitored the Company

D s testimony at the trial provides a candid account of why the s business ultimately failed. His evidence attributes the failure to cash flow difficulties, and not to any fraudulent scheme. This corroborates D s case that the Company was a business that underperformed, rather than a scam designed to defraud P.

The mechanism by which the projected revenue was to be achieved was the capital injection from the new shareholders. When the Company faced cash flow dif early as February 2012, the business was unable to scale up as planned. This is a story of commercial failure arising from insufficient funding and operational challenges, not fraud.

PW1 s own admissions corroborate D s account of s cash flow difficulties. PW1 confirmed that by September 2012, he was already aware that s cash flow was depleting. This is supported by the contemporaneous email from D1 dated 3.9.2012, which reported that s cash flow was depleting due to the commencement of several new projects simultaneously. D1 had also tried to secure bank loans, but these were rejected.

This is plainly a case of a failed business venture, and not a fraudulent scheme. All investments involve risk. Every element of the failure is attributable to commercial risk, operational challenges and insufficient capital, rather than any dishonest design on the part of the Defendants.

In the premises, P cannot now contend that he was misled by the Defendants in relation to the Company progress, performance and financial position. The contemporaneous - (a) was kept informed of the Company

had access to the

attended board meetings; (d) requested updates from staff; (e) personally monitored the work; and (f) signed the Company director. Estoppel and limitation The Plaintiff knew of the alleged misrepresentation since the year 2012, but chose not to sue

T evince that P was aware of the Company and the failure to achieve the projected revenue, long before this suit was filed. Indeed as early as February 2012, barely three months after the signing of the first SSA. The significance of this is two - fold :

first, it undermines P s allegation that it was deceived or kept in the dark; and

second, despite such knowledge, P made a conscious decision to enter into the second SSA in May 2013, rather than pursue legal action. By February 2012, the Plaintiff was already raising concerns

PW1 confirmed that as early as 13.2.2012, he had sent an email to D2 raising concerns regarding the Company . RM 22 million for 2012, as stated in his projection, from Huawei ... then company value has to be revalued and ask you to refund the money . This email demonstrates that as early as February 2012, P was already questioning whether the projected revenue of RM 22 million for the year 2012, and the anticipated income of RM 1.5 million per month from Huawei, would materialise. By February 2012, the Plaintiff was informed of revenue shortfall

PW1 further confirmed that D1 sent an email dated 15.2.2012 recording a meeting held on 14.2.2012, where the revenue shortfall was discussed. D1 aware of the revenue shortfall for January and February PW1 confirmed that P had discussed and raised this issue during the meeting.

PW1 further confirmed that by an email dated 3.3.2012, D1 furnished the management accounts for the financial year ended 2011, together with the actual revenue and profit figures. In the same email, D1 acknowledged the projected financial statements for the year 2012, namely RM 22 million in revenue and RM 3 million in profit, confirming that these projections were derived from Huawei (60 %) and other telcos (40 %). PW1 further confirmed that all such projected revenue and profit figures were presented by D1, and that the correspondence did not record the other Defendants as having made any such presentation. By June 2012, the Plaintiff signed the Company accounts knowing the actual revenue

PW1 confirmed that he signed the Company statements for the year ended 2011 on 6.6.2012. Thus, by June 2012, PW1 already knew of the Company Throughout 2012, the Plaintiff received continuous financial updates

PW1 confirmed that D1 regularly updated both P and D2 regarding the Company emails, including :

By an email dated 16.5.2012, D1 updated on the commencement of work for Huawei, including foreign workers approval and new work orders.

By an email dated 30.7.2012, D1 reported actual revenue of RM 759,000 for July 2012 from Huawei related work, with a projected revenue of RM 1.4 million for the following month.

By an email dated 3.9.2012, D1 reported sales of RM 565,000 for July and estimated RM 800,000 for August, with total book orders of RM 7.5 million and a projected pre - tax profit of RM 2 million for the year. PW1 confirmed that he was aware of the cash flow depleting due to commencement of work.

By an email dated 4.11.2012, D1 sent the management accounts as at September 2012, which included the income statement showing revenue of about RM 3.99 million.

It is therefore indisputable that throughout 2012, P was kept informed of the Company . P was aware that the revenue generated fell short of the RM 22 million projected in the Information Memorandum and the anticipated RM 1.5 million per month revenue. By July 2013, the Plaintiff knew the actual 2012 revenue and the profit guarantee was not achieved

PW1 confirmed that by an email dated 30.7.2013, D1 had circulated the draft audited report for the year ended December 2012. The income statement shows revenue of approximately RM 4.2 million for the year 2012 and a loss of RM 621,000. PW1 further confirmed that since 2013, he already knew that the RM 1.5 million per month revenue from Huawei was not achieved. By March 2013, the Plaintiff knew of the alleged misrepresentation by the 1st Defendant and proposed suing the 1st Defendant

In email dated 21.3.2013 to D2, P proposed three options for exiting the Company. Under option three, P expressly proposed to nitiate legal suit for compensation on the ground, misrepresentation and mismanagement against D1. Despite this knowledge, the Plaintiff entered the second SSA in May 2013

Notwithstanding that knowledge, P chose to enter into the second SSA dated 16.5.2013 with D1 for the buy back of the shares, drafted by PW1 confirmed that P knew the PCC listing might not materialise and that the second SSA expressly provided for this contingency under clause 3.3 (iii), and that P s only recourse was against D1. The Plaintiff still did not sue the 1st Defendant, even after the 1st Defendant breached the second SSA

When the PCC listing did not materialise and D1 failed to pay the RM

1.25 million by 16.5.2014, P still did not commence legal proceedings. It was only after D1 was adjudged bankrupt on 27.1.2016, and P realised recovery from D1 was unlikely, that P belatedly filed this suit on 15.10.2020. This was some five years after the alleged discovery in May 2015, and eight years after P already knew of the alleged misrepresentation in the year 2012. Significance of the above chronology

The above chronology, derived from P s own documents and PW1 s own admissions, erodes P s case.

P was not deceived or kept in the dark. From February 2012 onwards, P was informed of the C s actual financial performance, revenue shortfalls and cash flow problems. PW1 had access to s accounts, attended board meetings, and signed the audited financial statements. There is no question of fraudulent concealment.

P knew of the alleged misrepresentation since March 2013 at the latest, and yet made a deliberate decision not to sue D1. Instead, P entered into the second SSA on 16.5.2013 with legal advice. This conduct is inconsistent with that of a party who has been defrauded. A defrauded party would not willingly enter into a further commercial arrangement with the alleged fraudster.

P s only recourse was contractual against D1. The second SSA was P s chosen exit mechanism, drafted by its own lawyers.

P s delay in commencing legal action demonstrates the claim as an afterthought. Despite knowing of the alleged misrepresentation since the year 2013, P did not sue D1 before his bankruptcy in the year 2016. P also did not sue after the police report in December 2015. In the police report, PW1 had stated : After my company had signed the Sale and Purchase Agreement, it came to the attention of my company that no such big contract from Huawei was ever given to MDB .

P waited until October 2020 to file this suit. This conduct is more consistent with a disappointed investor belatedly seeking to shift blame to other parties after the primary obligor (i.e. D1) became bankrupt, than with a defrauded party asserting its rights.

This belated action under a conspiracy theory is an afterthought and attempt by P to recover its investment losses from other parties who are not privy to the second P SSA.

The fraud P complains of, is in truth commercial underperformance. The RM 22 million projected revenue was not achieved. The Company earned only RM 4.2 million in the year 2012 with a loss of RM 621,000. The targeted cumulative profit guarantee of RM 7 million was not met. However, these are failures of business projection, not fraud. Projections by their nature carry uncertainty, which is why P negotiated the contractual protection of D s personal profit guarantee. The law does not permit a disappointed investor to re - characterize an unsuccessful investment as fraud, merely because the venture did not yield the expected returns. T action is time - barred

At paragraph 26 of the statement of claim, P pleaded that the first purported act of deceit was discovered around February / March 2012. Sometime between the months of February to March 2012, several rounds of meeting took place between the Plaintiff and the 1st and 2nd Defendants to discuss about the performance of MDB Technologies. It was around this time, the Plaintiff discovered that the contract between MDB Technologies and Huawei Technologies was a mere fiction created to defraud the Plaintiff did not exist and MDB Technologies was found in a precarious and unstable position financially.

In addition, P (through PW1) had previously made a statement on oath that he had discovered the alleged act of deceit around February / March 2012. The relevant paragraph 6.19 of the affidavit affirmed by PW1 on 5.3.2021 (in reply to D3 and D striking out application) is produced below : Februari hingga Mac 2012, beberapa pertemuan telah di adakan antara Plaintif dengan Defendan Pertama dan Ke - 2 untuk berbincang mengenai prestasi MDB Technologies. Ia ada lah pada sekitar masa tersebut, Plaintif telah mendapati bahawa kontrak antara MDB Technologies dan Huawei Technologies hanyalah suatu fiksyen yang di cipta semata - mata untuk menipu Plaintif

Parties are bound by their pleadings. Here, P is bound by its pleading that the cause of action ought to have arisen in March 2012. P only commenced this suit on 15.10.2020. The inordinate delay in commencing this action - more than eight years later - cannot be ignored. The suit is time - barred.

dence confirm that the alleged fraud was discovered between February and March 2012. Accordingly, the cause of action accrued in March 2012, and the limitation period expired in March 2018 pursuant to section 6 of the Limitation Act 1953. P filed this suit on 15.10.2020, which is outside the limitation period.

The Federal Court in Nasri v Mesah [1971] 1 MLJ 32 at 34 cited : held that the statute runs from the earliest time at which an action could be brought

P sought to enlarge the time by contending that the cause of action only arose in May 2015, following the alleged admission by D1. (See paragraph 49 of the statement of claim). This contention is untenable.

The fraud complained of by P in February / March 2012 is the very same fraud complained of by P in May 2015. Namely, that D1 and D2 perpetrated fraud against P by duping it into investing in the Company. In light of this explicit pleading, it is contradictory for P to subsequently allege in paragraph 49 of the statement of claim that another discovery of fraud occurred in May 2015, purportedly through an undocumented meeting on 7.5.2015 through D1 unequivocal admissions that the same had been discovered as early as 2012.

In any event, there is no credible evidence produced by P to substantiate the alleged admission by D1 in May 2015.

been discovered in February / section 29

of the Limitation Act 1953 would apply. In these circumstances, the limitation period would still commence from February / March 2012. Accord by the limitation period and is time barred.

On a separate note second SSA arose in May 2014, when D1 failed to pay P the sum of RM 1.25 million by 16.5.2014 (being 12 months from the date of the second SSA dated second SSA therefore accrued when P first suffered damage, namely May 2014. Accordingly, barred by May 2020.

In AmBank (M) Bhd v Abdul Aziz bin Hassan & Ors [2010] 3 MLJ 784 at 791, the Court of Appeal held : In so far as s 6 (1) (a) of the Limitation Act 1953 is concerned, we are of the view that an alleged cause of action in contract first accrued from the date of the first clear and unequivocal breach of contract, while an alleged cause of

From his email dated 21.3.2013 to D2, PW1 already believed there had been misrepresentation by D1 as early as 2013, and had even proposed that D2 commence legal proceedings against D1 together with him. Further, after P lodged the police report in December 2015, and despite the fact that the investigation yielded no criminal prosecution, P still waited a further five years before filing this suit.

Prior to D1 D1 for payment, as evidenced by the fact that P entered into the second SSA with D1. It was only after P realised that its prospects of obtaining legal redress against D1 (who was later adjudged bankrupt) were unlikely, that P sought to enlarge its claim against other parties.

Even if P s claim was not time - barred under section 6 of the Limitation Act 1953, P ought to be barred from making this claim by reason of laches, acquiescence and delay. The doctrine of laches is well established. It is grounded in the equitable maxim - the law serves the vigilant, not those who sleep on their rights. (See the Court of Appeal cases of Tan Poh Yee v Tan Boon Thien and other appeals [2017] 3 MLJ 244 at 264 - 265; Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] 2 MLJ 805 at 854 - 855; Choong Howei v Cheah Choo Eng & Ors and another appeal [2015] 6 MLJ 95 at 111 - 112).

action is not a genuine claim for fraud. But rather an abuse of court process, brought in the hope that P may recover its investment losses from other parties after becoming aware that its primary claim against D1 would be unfruitful. The acts of deceit relied upon by the Plaintiff are devoid of merit

The acts of deceit pleaded in the statement of claim are baseless. The events relied upon by P occurred openly, without concealment, and were known to P and its representative, PW1. Further, the acts of deceit credible evidence in support of those allegations. Their witness statements merely contain bare assertions unsupported by contemporaneous documentation. Each of the acts of deceit will be addressed next. First act of deceit : Inducement to invest in the Company Issue concerning the alleged inaccurate revenue projections

At paragraphs 7 to 24 of the statement of claim, P avers that the targeted cumulative profit guarantee given by D1 was a device to induce P to invest in the Company, because the Company overvalued and the C the targeted cumulative profit guarantee of RM 7 million. This allegation is misconceived.

PW1 confirmed during cross - examination that the targeted cumulative profit guarantee was given solely by D1 through the first P SSA, and not by the other Defendants.

The same targeted cumulative profit guarantee was also given to D2 under clause 7 of the first D2 SSA. D2 invested on the same terms as P by acquiring 30 % shares in the Company. It would therefore be irrational for D2 to support any alleged inflation of the Company o would mean that D2 himself paid an inflated price for his own investment.

During the trial, the counsel for P raised questions concerning the figures in the Information Memorandum, suggesting that those figures were exaggerated. However, the Information Memorandum was prepared and presented by D1, not the other Defendants. This was confirmed by D1, who explained that he prepared the document because he was the operations. P itself pleaded the same fact in paragraphs 10 and 12 of the statement of claim.

Further, PW1 confirmed that prior to his first meeting with D1 on 2.11.2011, D2 had never even mentioned the name of the Company to him. Thus, the first time P became aware of the Company was during the meeting with D1 on 2.11.2011. In the premises, there was no representation made by D2 to P, let alone any fraudulent representation as alleged.

In any event, even if the profit projections presented by D1 ultimately proved inaccurate, P (through PW1) knew or ought reasonably to have known that such figures were merely projections, which inherently carry uncertainty and are not guarantees of actual performance. P, a seasoned businessman with legal representation, had both the opportunity and characterize alleged overvaluation or unrealistic projections as part of a conspiracy to defraud is therefore unsustainable. Issue concerning due diligence on the Company

P alleged that D2 dissuaded P from conducting due diligence on the Company by stating that Frontken had already carried out the same, thereby inducing P to follow D2 This allegation is untenable.

D2 never represented that Frontken had conducted formal due diligence on the Company. What occurred was that Frontken sent two senior staff members to conduct a preliminary site visit to the Company Frontken decided not to proceed with the contemplated investment.

PW1 is an experienced corporate figure with extensive commercial experience. P was also represented by solicitors, and had the benefit of legal advice throughout the negotiations and drafting of the relevant agreements.

In those circumstances, it is improbable that D2 could have dissuaded P from conducting due diligence. D2 was not in a position to prevent P from undertaking its own due diligence exercise. There is no documentary evidence showing that D2 stopped P from conducting due diligence.

During cross - examination, PW1 confirmed that there was no deadline imposed on P to sign the first SSA. Even PW2, advisor, confirmed that there was opportunity given for P to do their own checking before the signing. PW2 advised that a proper due diligence is prudent. However, P chose not to do so. In short, P was able and capable to take whatever steps it deemed necessary to protect its interests before proceeding with the investment.

P repeatedly asserted that it trusted D2, and merely followed his decision to invest. Such contention is misplaced. At the material time, there was no business relationship or special relationship of trust between P and D2. The relationship between the parties was purely commercial P voluntarily made a commercial decision to invest based on its own judgment and risk assessment, without inducement from the Defendants.

On this aspect, the Court of Appeal in Nortel Networks (Asia) Ltd (formerly known as Northern Telecom (Asia) Ltd) & Ors v Sapura Holdings Sdn Bhd & Ors [2012] 6 MLJ 491 at 500 said : relationship of the parties was nothing more than one arising from a commercial transaction and in view of the entire agreement clause found in the agreements the parties rights and obligations must be determined as set out in the said agreements and not on any purported oral representations

The first SSA contains an entire agreement clause, which provides whatever trust P had or whatever understanding P inferred from D2 cannot be taken into account. (See the English High Court case of Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] All ER (D) 1100). Although the clause does not apply in cases of fraud, there is no evidence cation of fraud appears to be an attempt to avoid both limitation and the effect of the entire agreement clause.

P advanced two inconsistent versions of events concerning the alleged dissuasion from conducting due diligence. The first version is that the dissuasion occurred during the 2.11.2011 meeting (as pleaded in paragraphs 9 to 11 of the statement of claim). The second version came about during the trial, when PW1 claimed that the dissuasion occurred during the 4.11.2011 meeting. When confronted with this inconsistency, PW1 said that the statement of claim This inconsistency weaken

Notably, this is a case on fraudulent misrepresentation and this is one of the act of deceit relied on by P. Given that it is purely oral (without any supporting written documents), it goes without saying that at the very least, it has to be consistent for it to be probable. However, that is not the case here and such chang in any event is not proven.

The first v pleaded case and yet, there is no evidence to prove the occurrence of the alleged dissuasion during the 2.11.2011 meeting, including minutes or other written documents such as emails.

The second version is not properly pleaded in the statement of claim. All the Defendants had given consistent testimony on the fact that there was no such meeting that they had attended. Particularly for D2, he was not in Malaysia and he was in Singapore at that time after checking his passport. Likewise, there is also no written documents to prove the existence of this 4.11.2011 meeting and also what transpired during this meeting.

Be it 2.11.2011 or 4.11.2011, meetings of such importance would ordinarily be documented. The absence of any contemporaneous record suggests that either no such meeting on 4.11.2021 occurred or the Defendants were not involved. The due diligence issue has been rendered academic by subsequent events

Even if it was true that the Defendants had dissuaded P from conducting due diligence prior to the signing of the first SSA, this issue has been superseded and rendered academic by subsequent events. After the execution of the first SSA on 11.11.2011, P (through PW1) was appointed as a director of the Company on 15.11.2011. From that date onwards, PW1 had access to s books. He was no longer an outsider relying on representations. He was an insider with visibility into s actual operations and financial position. From the moment PW1 became a director of the Company, he effectively had access to all the information that any due diligence exercise would have revealed.

In the premises, any alleged failure to conduct due diligence prior to the first SSA could not have caused P any continuing prejudice, because information about Compan s actual business, financial performance and contractual relationships was available to and in fact obtained by P from 15.11.2011 onwards through s position as a director. P was in a position and indeed did discover the Compan s actual revenue, the shortfall from the projected RM 22.2 million, and the financial difficulties faced by the Company. PW1 confirmed that by the year 2013, he already knew that the projected revenue of RM 1.5 million per month from Huawei had not been achieved.

Despite having knowledge of s actual financial position by the year 2013, P nonetheless made a conscious decision to enter into the second SSA on 16.5.2013, drafted by its own lawyers, for D1 to buy back P s shares. This was not the act of a defrauded party acting in ignorance. This was a calculated commercial exit strategy by an informed investor who knew the true state of s business. P chose to negotiate a contractual remedy against D1, rather than pursue any claim of fraud.

Thus, even if P was able to establish that the Defendants dissuaded it from conducting due diligence in November 2011, such allegation has been overtaken by subsequent events. P obtained knowledge of the Compan s actual position through s directorship, had the benefit of legal advice, and chose to proceed with the second SSA. The due diligence issue has no bearing on P s alleged losses. Such alleged loss arose not from any failure of due diligence, but from the s commercial underperformance and D s subsequent failure to honour the second SSA.

Actually, the due diligence allegation is a red herring. It has not been pleaded that if P conducted a due diligence, it would have uncovered financial position was disclosed in the Information Memorandum, the fact that the master procurement agreement does exist and is not a fiction, and the fact that the Maxis NGBB contract also exists, a due diligence would have uncovered these facts which are in fact true. Therefore, nothing turns on the failure to conduct the due diligence. Second act of deceit : Assistance to honour the irrevocable profit guarantee and undertaking Issue concerning the alleged fictitious contract between Huawei and the Company

As discussed earlier - including the Huawei affidavit obtained pursuant to subpoena - has effectively destroyed this allegation. The evidence manifest that the Maxis NGBB contract and the Huawei subcontract existed, and that the Company performed actual work and generated revenue therefrom. Third act of deceit : Joint proposal to undertake corporate exercise involving the 1st D Indonesia; and the fourth act of deceit : Events leading up to the execution of the second SSA

The alleged third act of deceit and fourth act of deceit both concern the second SSA and D1 buy in the Company. Issue concerning the failure of the proposed PCC listing

P alleges that the proposed listing of PCC was another act intended to deceive P, and that such fraudulent misrepresentation was incorporated into the second SSA. This allegation is unfounded. The failure of the proposed PCC listing is neither attributable to the other Defendants, nor indicative of any conspiracy to defraud.

The Company listing of PCC was suggested by D1 as a means of raising funds for him to buy back the shares held by P and D2.

D2 assisted with the PCC listing exercise and incurred expenses in relation to:- (i) the creation of bonds with the London Stock Exchange; (ii) valuation exercise; and (iii) related listing expenses. The proposed PCC listing ultimately failed.

The PCC listing is already accepted as an uncertain event. The second SSA specifically caters for the situation where the listing of PCC does not take place. Clause 3.3 (iii) of the second SSA sets out the alternative payment mechanism in the event that the proposed PCC listing fails. Whereby D1 shall pay the sum of RM

1.25 million within 12 months from the date of the second SSA (i.e. by 16.5.2014), and the remaining sum shall be paid within 18 months from the date of the second SSA (i.e. by 16.11.2014).

During cross - examination, PW1 confirmed that he understood the possibility that the proposed PCC listing might not materialise and that his only recourse for recovery of monies was against D1.

Such alternative payment mechanism under clause 3.3 (iii) of the second SSA, coupled with the admission by PW1, undermines cannot be fraudulent misrepresentation when the parties, including P, were aware of the possibility that the proposed PCC listing might fail.

Also, the second SSA contains an entire agreement clause at c prior negotiations, commitments and understandings relating to The significance of an entire agreement clause was discussed earlier. I

Prior to the PCC listing proposal, D1 had raised a possible share buy back arrangement involving a party known as Dato Chua. This proposal ultimately did not materialise, and was later replaced by the PCC listing option. P now characterises this proposal as another act of fraudulent misrepresentation. This allegation is without merit.

The parties were simply exploring possible avenues for D1 to 2 merely one possible option under consideration. A proposal, by its very nature, is not a guaranteed outcome.

The proposal concerning Dato Chua originated from D1, not D2. D2 was therefore not involved in any alleged misrepresentation and cannot be said to have defrauded P.

Further, upon learning of the proposal, P itself (through PW1) took steps to consult its solicitors regarding the matter. The 3rd and 4th Defendants

At this juncture, it is pertinent to point out that the statement of claim pleads four acts of deceit, but only the first act of deceit involves D3 and D4. - à - vis the first act of deceit is as follows :

there was a meeting held on 2.11.2011, attended by PW1, Abdul Ghani and PW2 (representing P), and the 1st to 4th Defendants;

at that meeting, D1 presented slides in the form of an Information Memorandum and made the following representations :

Maxis had awarded a fibre optic contract worth USD 200 million to Huawei;

(ii) the Company was a partner of Huawei for laying fibre optic cables for Maxis;

(iii) the Company work had been increased from RM 500,000 per month to RM 1.5 million per month;

(iv) the Company would achieve an accumulated profit of RM 7 million for the years 2012 and 2013, which D1 would guarantee.

At that same 2.11.2011 meeting, it is alleged that PW2 raised his concerns on the necessity of conducting a due diligence on the Company. However, D2 informed P that no due diligence was required as D2 , had already conducted a due diligence exercise. Crucially, the only allegation against D3 and D4 assured the Plaintiff that MDB Technologies is a strong company, both financially and administratively .

Thus, P avers that it relied on those representations and invested in the Company. Paragraph 13 of the statement of claim reads : In reliance on the representations made by the 1st, 2nd, 3rd and 4th Defendants on the due diligence purportedly carried out by Frontken Corporation Berhad, the financial stability, contract value and the forecasted profits of MDB Technologies at that material time and thereby induced by the representation made, the Plaintiff had on good faith, mutual trust and understanding then agreed to purchase the 30 % shares in MDB Technologies from the 1st Defendant at a consideration of RM 4.8 million. Such decision was reached particularly since the 2nd Defendant too was at the same time purchasing another 30 % of the shares in MDB Technologies

Out of the four limbs of the alleged representations, the only limb that involves D3 and D4

At Q&A 10 of his witness statement, PW1 gives evidence of the meeting on 2.11.2011. He states that the meeting was attended by him and Abdul Ghani for P, and the 1st to 4th Defendants. It must be noted that there is no mention of PW2 attending this meeting on 2.11.2011, which is contrary to what was pleaded. In cross - examination, PW1 conceded that PW2 did not attend the 2.11.2011 meeting.

Crucially, Q&A 10 which deals with the meeting on 2.11.2011 does not state that D1 had presented the Information Memorandum at that meeting, as is pleaded. PW1 accepts this. The only allegation against D3 and D4 in Q&A 10 is as follows MDB was a profitable and thriving company . However, this alleged assurance is not the pleaded representation, as highlighted above.

In any event, PW1 had to concede in cross - examination that looking at the Information Memorandum itself, the Company was not a strong financial company in the year 2011. That was because the Information Memorandum states that the Company was RM 2.3 million and profit after tax of only RM 92,000. PW1 concessions are detrimental D3 and D4 had represented that the Company was a strong company.

At Q&A 11 of his witness statement, PW1, for the first time introduces another meeting on 4.11.2011. Where he now claims that D1 presented the Information Memorandum and the master procurement agreement between Huawei and the Company. PW1 then claims that

At Q&A 11, no allegation is made against D4. The only allegation made against D3 is as follows : [i.e. D3] also supported the information contained in the Information Memorandum in preparing the Heads of Agreement which closely mirrored the

This allegation is also not pleaded. In any event, all D3 did was prepare the Heads of Agreement because he was a lawyer. Preparing the agreement can in no way be translated to mean that D3

The pleading point is crucial. The statement of claim does not plead the 4.11.2011 meeting and does not plead the allegation against D3 highlighted above. D3 and D4 must fail. Since parties are bound by their own pleadings and the court is not entitled to decide the case on a matter not pleaded. (See the Court of Appeal case of The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon [2017] 4 MLJ 791 at [36] - [41]). The alleged discovery of fraud through admission by the 1st Defendant

At paragraph 49 of the statement of claim, P alleges that on 7.5.2015 D1 supposedly admitted that he and the other Defendants had conspired to deceive P. This allegation has not been proven. Apart from evidence (such as minutes or emails) recording the alleged admission. Given the significance of such an admission, it would have been reasonable for P to record the same in writing. The absence of any contemporaneous record and the lack of corroboration from other witnesses render this allegation unreliable.

Further, D1 confirmed he could not recall the alleged admission meeting on 7.5.2015. When cross - examined about the alleged meeting on 7.5.2015 where he purportedly admitted the money distribution, D1 cannot recall such meeting and denied any such admission. Even if such an admission had occurred, it would be inexplicable for P to wait over five years before commencing this action on 15.10.2020. Again, this allegation appears to be an attempt to artificially extend the limitation period so that the claim is not time - barred. Issue concerning the referral fee paid by the 1st Defendant to the other

128.

At paragraph 51 of the statement of claim, P alleges that the RM 6 million purchase consideration received by D1 was distributed among the other Defendants. P relies on this payment as evidence of the other Defendants baseless. No fiduciary duty owed by the Defendants to account for any secret profit

Firstly, P alleged the referral fee as a secret profit at paragraph 55 of the statement of claim. But did not plead the legal basis upon which the Defendants were under any obligation to disclose it or account for any This omission to plead is fatal. A secret profit or secret commission is actionable only where there exists a fiduciary or agency relationship giving rise to a duty of disclosure and a duty to account for any profit.

secret commission , when there was no fiduciary relationship between P and the Defendants, and no fiduciary duty is owed by the Defendants to P. (See the Court of Appeal case of Tetuan Khana & Co (sued as a firm) v Saling bin Lau Bee Chiang and other appeals [2019] 3 MLJ 1 at 73; the High Court case of Yukilon Manufacturing Sdn Bhd & Anor v Dato Wong Gek Meng & Ors (No 4) [1998] 7 MLJ 551 at 582).

It is not pleaded in the statement of claim that the Defendants owed any fiduciary duty to P. P has not pleaded that any of the Defendants was P s agent, advisor or fiduciary. Without pleading the existence of a fiduciary or agency relationship, P cannot rely on the concept of secret profit as a basis for its claim. In the premises, since no fiduciary duty was pleaded, P s reference to the referral fee as a secret profit has no legal foundation.

Even if I were to consider this point (which I ought not, given the absence of pleading), the Federal Court in Solid Investments Ltd v Alcatel - Lucent (M) Sdn Bhd [2014] 3 MLJ 785; [2014] 3 CLJ 73 considered a similar issue and held that commercial transactions at arm s length do not give rise to fiduciary duties. The Federal Court held (at page 804, MLJ) : In the instant case the business relationship between the plaintiff and the defendant did not fall under the accepted traditional categories of fiduciary relationship. Even if we were to apply the flexible approach to the circumstances of the case we are of the view that such fiduciary relationship did not exist in the case. This is because commercial transactions often do not give rise to fiduciary duties because they do not meet the criteria for characterization as fiduciary in nature . We also find it useful to refer to the judgment of the High Court of Australia in Hospital Products Limited v United States Surgical Corporation & Ors at p 69 where Gibbs CJ said : On the other hand, the fact that the arrangement between the parties was and on an equal footing has consistently been regarded by this Court as important, if not decisive, in indicating that no fiduciary duty arose ... [48] The circumstances of the relationship in the instant case could not, in our view, give rise to a relationship of trust and confidence. It was not appropriate to expect a commercial party to subordinate its own interests to another equal footing

The principles enunciated by the Federal Court in Solid Investments apply to the present case. There is no fiduciary relationship between the Defendants and P. Specifically :

The Defendants were not P s agent, advisor, solicitor, trustee, or fiduciary in any capacity. D2 was another purchaser of shares in the Company, who entered into his own separate first SSA on the same terms as P.

The Defendants were not appointed to act on behalf of or in the interests of P. P had its own independent legal representation i.e. Messrs Illiayas who drew up all the agreements and advised P. The referral fee was paid from the 1st

Secondly, it has not been proven that the referral fee was paid from the Company or P. On the other hand, PW1 confirmed during cross - examination that the monies were D1 referral fee paid by D1 to the other Defendants did not come from , but from D1 personally. Upon receipt of the purchase consideration for the shares, D1 was free to deal with the monies he received as he saw fit because the RM 9.6 million belonged to him. D1 explained that he was happy to have Willie [i.e. D2] on board because of his corporate figure standing as chairman of Frontken, believing he could bring the company to a next level . Nothing dubious about the referral fee

Thirdly and in any event, the referral fee is not part of any conspiracy. The RM 2.4 million paid to D2 was actually a referral fee for successfully procuring an investor pursuant to an arrangement between D1 and D2. Such arrangement has been recorded in a letter dated 15.11.2011. There is nothing sinister about this referral fee. It is a common practice in the corporate sector to pay referral fees for introducing investors. There was nothing unlawful or improper about this arrangement.

D3 and D4 adequately explained the reason why the referral sums were paid to them. As far as D4 was concerned, it was a referral fee plus a repayment of loans that he had advanced to D1 previously. With regards to D3, D4 had asked D1 to pay the sum directly to D3 because D3 had helped D4 with various deals in the past. Both D3 and D4 gave evidence of this and it was in relation to corporate exercises in Australia. es not add up

Fourthly, PW1 s own evidence on the alleged distribution at Q&A 14 of his witness statement is inconsistent. PW1 stated : There was a face - to - face meeting on 7.5.2015 where Lee [i.e. D1] admitted the Plaintiff s RM 4.8 million had been divided among Willie (RM 2.4 m) [i.e. D2], Nicholas (RM 1.35 m) [i.e. D3] and Raymond (RM 2.15 m) [i.e. D4].

This evidence does not make sense on its face. PW1 asserts that P s payment of the RM 4.8 million purchase consideration was distributed among the 2nd to 4th Defendants. However, a simple arithmetic calculation reveals that the aggregate sum purportedly distributed to these three persons totals RM 5.9 million (i.e. RM 2.4 million + RM 1.35 million + RM

2.15 million = RM 5.9 million), which is RM 1.1 million more than P s investment of RM 4.8 million.

It is therefore mathematically impossible for P s RM 4.8 million alone to have been divided among the 2nd to 4th Defendants, when the alleged distributions exceed RM 4.8 million by more than RM 1 million. This inconsistency in PW1 s own evidence casts doubt on the veracity of the alleged admission by D1 on 7.5.2015 and P s entire narrative that the investment monies were siphoned off to the other Defendants as part of a fraudulent scheme.

Furthermore, PW1 s assertion at Q&A 17 of his witness statement that if the Plaintiff had known that there was going to be referral fee to Willie, the Plaintiff would not have purchased the shares in MDB is an afterthought that does not assist P s case. It is pertinent to note that P is not claiming for the referral fee. The referral fee was a private arrangement between D1 and D2, which has no bearing on P s decision to invest, particularly when P was independently advised by its own solicitors and made its own commercial assessment.

P s characterization of the referral fee as evidence of D s motive or participation in a conspiracy is therefore unsustainable. A co - investor who commits RM 4.8 million of his own money, injects a further RM 3.5 million in shareholders loans, PCC listing expenses, KWSP penalties and loan settlements, and ends up with a net loss of approximately RM 5.9 million even after receiving the referral fee, is plainly not acting as a co - conspirator in a scheme to defraud P. , and not a real case of fraud

What P is trying to recover from all the Defendants is essentially the agreed purchase consideration between P and D1 vide the first SSA and also the second SSA. As per paragraph 60 of the statement of claim, P claims the following items :

Profit guarantee of RM 2.1 million (i.e. 30 % of RM 7 million).

(ii) Investment in 30 % shareholding of the Company of RM 4.8 million.

(iii) Loan to the Company of RM 2.29 million.

(iv) Interest costs as at 30.4.2013 of RM 627,578.

Interest on the purchase price of RM 7,717,578 under the second SSA (being the total of (ii), (iii) and (iv) above) of RM 3,052,302.10.

(vi) tunggakan c on behalf of MDB Ana Biaperi Sdn Bhd on 17.1.2017 and p tunggakan c 30.11.2016 of RM 97,345.

(vii) Settlement compound to Companies Commission of Malaysia for MDB Ana Biaperi Sdn Bhd on 23.10.2018, 1.11.2017 and 1.3.2017 of RM 6,800.

At the outset, all the aforesaid items are strictly based on the agreements between P and D1, and does not involve the other Defendants. Each of them will be dealt with in turn below.

In respect of the profit guarantee of RM 2.1 million (i.e. 30 % of the targeted cumulative profit guarantee of RM 7 million) :

The said targeted cumulative profit guarantee was represented by D1, not the other Defendants;

The only binding agreement involving P, D1 and D2 is the shareholders agreement. That does not contain any provision depicting any representation or warranty alleged to have been made by D2 to P in respect of the purchase of the shares of the Company.

The targeted cumulative profit guarantee of RM 7 million to be achieved, if any, was strictly a profit to the Company and not to P. The first SSA provides that if there is any shortfall in the targeted cumulative profit guarantee, the said shortfall shall be a debt due from D1 to the Company. This is a profit to the Company, and not P. P is a separate legal entity from the Company.

Further, this is not a derivative action. P could not be suing for and on behalf of the Company or for the benefit of the Company, when P was no longer a shareholder and director of the Company. (See the Court of Appeal cases of Law Kam Loy v Boltex Sdn Bhd [2005] 3 CLJ 355 at 359; Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another appeal [2006] 1 CLJ 996 at 1010; Bumiputra - Commerce Bank Bhd v Augusto Pompeo Romei & Anor [2014] 3 MLJ 672 at 681 - 682).

In respect of the investment of RM 4.8 million for 30 % equity in the Company, loan to the Company for working capital funding of RM 2.29 million and interest costs of RM 627,578 :

The purchase price of RM 7,717,578 under the second SSA is essentially the aggregate sum of items (ii), (iii) and (iv) above (i.e. RM 4.8 million + RM 2.29 million + RM 627,578 = RM 7,717,578).

Again, these are agreed terms between P and D1, not the other Defendants. Hence, when D1 failed to honour his promise to pay the purchase price of RM 7,717,578 to P, P ought to recover the same from D1 accordingly. Not from other parties who are not privy to the second P SSA.

The investment of RM 4.8 million to purchase the 30 % shares of the Company from D1. It is not recoverable from the other Defendants.

The loan of RM 2.29 million to the Company was part of the contractual shareholders loan to the Company, which P had agreed to furnish pursuant to the shareholders agreement. Similarly, D2 had also provided a shareholders loan to the Company, which has not been recovered. This loan to the Company is to be recovered by P from the Company, not from the Defendants.

The interest costs of RM 627,578 appears to represent interest on RM 4.8 million and RM 2.29 million, which was already factored in the second SSA. This can be seen from PW1 on 8.5.2013, where he had enclosed the relevant breakdown for the final amount that D1 is to pay via the second SSA.

on the purchase price of RM 7,717,578 under the second SSA totalling

Similarly, this claim is also based on the second SSA (clause 1.1). W i clause 3.3 of the second SSA pertaining to late payment of the purchase price by D1 is defined base lending r BLR.

This purported interest on the purchase price of RM 7,717,578 under the second SSA is just an extension of the claim for interest in item (iv). It ought not be allowed based on the aforesaid.

Finally, the payment of tunggakan caruman KWSP on behalf of MDB Ana Biaperi Sdn Bhd and the Company of RM 97,345 and the settlement of compound to the Companies Commission of Malaysia for MDB Ana Biaperi Sdn Bhd of RM 6,800. These payments appear to be advances given by P to the companies concerned. It does not involve the Defendants. P ought to recover the same directly from the companies concerned. In the premises, the reliefs claimed by P against the Defendants are without basis. Adverse inference - failure to call listed witness

I consider that an adverse inference under section 114 (g) of the Evidence Act 1950 ought to be drawn against P for its failure to call Abdul Ghani, the former manager of P. Abdul Ghani was present at the critical meetings on 2.11.2011 and 4.11.2011. He had filed a witness statement of 13 pages (Enclosure 236), containing 26 Q&As which supposedly Apparently, he was present in court and ready to testify during the trial. Despite having gone to the trouble of filing this witness statement , P abruptly chose not to call him to testify and be cross - examined, without proferring any explanation.

The failure to call Abdul Ghani, who was an eyewitness to the meetings, gives rise to the inference under section 114 (g) of the Evidence Act 1950 that his evidence, if given and subjected to cross - examination, (See the Court of Appeal cases of Chan Yoke Lain (administrator of the estate of Chong Yoke Fah, deceased) v Pacific & Orient Insurance Co Sdn Bhd [1999] 1 MLJ 303 at 308 - 309; CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1 at [103]).

Based on the totality of the evidence adduced at the trial, my findings are that :

P has failed to prove its pleaded case of fraudulent misrepresentation and conspiracy to defraud against the Defendants.

the material representations were made by D1, and not the other Defendants. There is no documentary evidence of any representation by the other Defendants. P had legal advice and the opportunity for due diligence.

i affidavit obtained via subpoena, has destroyed its allegation that the Maxis NGBB contract was not in existence.

D2 was a co - investor who invested in the Company and incurred losses. His conduct is inconsistent with that of a fraudster.

action is time - barred, having been filed outside the six - year limitation period under section 6 of the Limitation Act 1953.

Abdul Ghani warrants an adverse inference under section 114 (g) of the Evidence Act 1950 that his evidence would have been unfavourable to P.

belatedly after D1 was adjudged bankrupt. It is an attempt to recover investment losses from other parties who are not privy to the second P SSA.

For the reasons above, I dismissed I awarded costs of RM 20,000 to D1, RM 80,000 to D2, and RM 80,000 to D3 and D4. Dated 15 April 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2) Counsels Mathew Thomas Philip, Kimberly Teh Zhe Wei and Faruk Mekic (Messrs. Thomas Philip) for the Plaintiff 1st Defendant in person. Alvin Lai Kok Wing, Chia Wen Chow, Iris Lim Xin Yi and Ivone Low Yi Wen (Messrs. C P Ngoo & Co.) for the 2nd Defendant Ranjit Singh, Elizabeth Lau Yuen Jin, Hazel Siau Ju Shuen and Hugo Ng Yong Zheng (Messrs. Elizabeth Lau) for the 3rd and 4th Defendants Case reference 1. Hamzah bin Abdul Majid v Mohd Jalani bin Datuk Hj Mohd Sidek & Ors [2014] MLJU 1858 2. Takaka Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 3. SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393 4. CIMB Bank Bhd v Veeran a/l Ayasamy [2015] MLJU 993 5. GS Gill Sdn Bhd v Descente Ltd and another appeal [2008] 6 MLJ 181 6. Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 MLJ 309 7. Tan Sri Halim Saad v Tan Sri Nor Mohamed Yakcop & Ors [2014] 11 MLJ 379 8. Nasri v Mesah [1971] 1 MLJ 32 9.

AmBank (M) Bhd v Abdul Aziz bin Hassan & Ors [2010] 3 MLJ 784

Tan Poh Yee v Tan Boon Thien and other appeals [2017] 3 MLJ 244 Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng &

Ors [2022] 2 MLJ 805 Choong Howei v Cheah Choo Eng & Ors and another appeal [2015] 6 MLJ 95

Nortel Networks (Asia) Ltd (formerly known as Northern Telecom (Asia) Ltd) &

Ors v Sapura Holdings Sdn Bhd & Ors [2012] 6 MLJ 491

Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] All ER (D) 1100 The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon (conducting under [2017] 4 MLJ 791

Tetuan Khana & Co (sued as a firm) v Saling bin Lau Bee Chiang and other appeals [2019] 3 MLJ 1 17. [1998] 7 MLJ 551

Solid Investments Ltd v Alcatel - Lucent (M) Sdn Bhd [2014] 3 MLJ 785; [2014]

Law Kam Loy v Boltex Sdn Bhd [2005] 3 CLJ 355 at 359

Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another appeal [2006] 1 CLJ 996

Bumiputra - Commerce Bank Bhd v Augusto Pompeo Romei & Anor [2014] 3

Chan Yoke Lain (administrator of the estate of Chong Yoke Fah, deceased) v

Pacific & Orient Insurance Co Sdn Bhd [1999] 1 MLJ 303 CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1 Legislation reference 1. Section 6 and 29 (c) of the Limitation Act 1953 2. Section 114 (g) of the Evidence Act 1950