Spnb Aspirasi Sdn Bhd v 1. ) Wiradani Development Sdn Bhd (BA-22NCvC-399-09/2023)

WIRADANI DEVELOPMENT SDN BHD [Company Registration No.: 376086-X]

AKITEK AKIPRIMA SDN BHD [Company Registration No.: 67476-W]

DATO’ SRI UNG ENG HUAT [I/C No. : 660113-03-5263]

DATO’ CHEAH KAH LIP [I/C No. : 711031-07-5197]

DATUK LEONG YENG KIT [I/C No.: 730808-05-5253]

DATUK AHMAD AZIZI BIN HAJI ALI [I/C No.: 640905-08-5893] …DEFENDANTS 15/07/2025 09:11:56 BA-22NCvC-399-09/2023 Kand. 93 GROUNDS OF JUDGMENT

These are applications by the First to Fifth Defendants (Enclosure 6) and the Sixth Defendant (Enclosure 25) to strike out the Plaintiff’s Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b), (c), and (d) of the Rules of Court 2012.

Having considered the parties' submissions, both written and oral, I am satisfied that the claims made by the Plaintiff are barred by the doctrine of res judicata and constitute an abuse of process.

Accordingly, I allowed both applications with costs. These are the reasons for my decision.

The First Defendant is the registered proprietor of the land held under H.S.(D) 119203, PT 9525, Mukim Ampang, Daerah Hulu Langat, Negeri Selangor, measuring approximately 16,492.34 square metres (177,552 square feet) (the said Land).

The Plaintiff, having been tasked with carrying out a housing development, engaged the First Defendant to act as the turnkey contractor for the development of a portion of the said Land measuring approximately 1.26 acres. The scope of the development included the construction of service apartments, retail units, parking facilities and other components (the Project).

Following negotiations with legal representation for both parties, the Plaintiff and the First Defendant executed a Development Agreement dated 16 October 2014 (the DA) to formalise the terms of their engagement for the Project.

Subsequently, on 12 December 2017, the parties entered into a Supplementary Development Agreement (the SDA) to modify and supplement the terms of the DA. The Sixth Defendant signed the SDA in his capacity as the Executive Director of the Plaintiff’s company. The Plaintiff’s legal adviser had reviewed and approved the SDA prior to its execution.

Following the execution of the DA and SDA, the First Defendant proceeded to perform its obligations under both agreements.

In accordance with clause 6.1 of the DA, the First Defendant submitted Interim Claim No. 1, supported by Certified Interim Payment Certificate No. 1 (Interim Payment Certificate No. 1). It is not disputed that this certificate was properly issued and served on the Plaintiff.

It is also undisputed that the Plaintiff failed to make payment on the said Interim Payment Certificate No. 1.

Due to the Plaintiff’s continued failure to fulfil its obligations, including payment and other contractual duties, the First Defendant initiated arbitration proceedings against the Plaintiff on 23 June 2020 pursuant to clause 20 of the DA.

In the arbitration, the First Defendant alleged, among others, that: a. The Plaintiff failed to pay the Interim Payment Certificate No.

b. The Plaintiff failed to issue the Letter of Award in accordance with clause 7.2.7 of the DA to the First Defendant despite repeated reminders. c. The Plaintiff failed to fulfil its contractual obligations, including payment and performance duties under the DA and SDA.

In response, the Plaintiff advanced several defences during the arbitration, including: a. That Interim Payment Certificate No. 1 was not prepared in accordance with the DA. b. The Letter of Award could not be issued because the First Defendant had not satisfied certain conditions precedent. c. The First Defendant allegedly terminated the DA unilaterally via its letter dated 29 December 2017, and the Plaintiff accepted this termination, rendering the agreements no longer in force.

The arbitration hearing lasted for five (5) days, from 1 September 2021 to 7 September 2021. On 25 April 2022, the learned arbitrator, Datuk Professor Sundra Rajoo, delivered the award in favour of the First Defendant (the Final Arbitration Award). The Plaintiff’s counterclaim against the First Defendant was dismissed.

Following the award: a. On 25 May 2022, the First Defendant filed an Originating Summons in the Kuala Lumpur High Court (OS No: WA- 24C(ARB)-18-05/2022) to enforce the Final Arbitration Award (“OS 18”). b. On 1 July 2022, the Plaintiff filed an Originating Summons to set aside the same award (OS No: WA-24C(ARB)-23- 07/2022) (“OS 23”).

On 29 June 2022, the High Court granted the First Defendant’s ex parte application in OS 18 to enforce the Final Arbitration Award (the Ex Parte Order). Dissatisfied, the Plaintiff filed an application via Enclosure 7 in OS 18 to set aside the said Order.

On 29 November 2022, the High Court dismissed both of the Plaintiff’s applications in OS 18 and OS 23, thereby confirming the validity and enforceability of the Final Arbitration Award and, by extension, the clauses in the DA and SDA.

The Plaintiff appealed both decisions for OS 18 and OS 23 to the Court of Appeal.

On 9 October 2023, the Plaintiff and the First Defendant recorded a consent judgment before the Court of Appeal, in which the Plaintiff unequivocally admitted the validity and binding nature of the Final Arbitration Award. The Plaintiff also agreed to set off RM28,000,000.00 in satisfaction of the award (the Consent Judgment of the Court of Appeal).

Despite this unequivocal admission and the resolution recorded in the Court of Appeal, the Plaintiff continued with the present suit, which was filed on 21 September 2023, seeking declarations that are inconsistent with previous decisions, specifically that the DA and/or SDA are alleged to be unenforceable, invalid, and/or void ab initio.

It should be noted that the previous decisions, including those of the High Court and the Consent Judgment of the Court of Appeal, continue to stand and have not been set aside or stayed. Therefore, the DA and SDA remain valid and enforceable, and the Final Arbitration Award remains binding on the parties.

The First to Fifth Defendants argued that the Plaintiff’s entire claim was barred by res judicata because the arbitral tribunal had fully determined the same issues.

They further argued that the Plaintiff’s attempt to introduce new causes of action in tort (fraud, conspiracy) was merely a rebranding of issues that should have been raised in arbitration, and therefore, constituted an abuse of the Court’s process.

The Sixth Defendant also argued that the Plaintiff’s claims against him stemmed from the same factual matrix and were equally untenable and oppressive. He invoked the doctrines of res judicata, waiver, and abuse of process.

The Defendants argued that a review of the full chronology [as in Annexure A] shows that the current suit seems intended to delay or obstruct the enforcement of the Final Arbitration Award. The main issues raised here have already been decided and are barred by the doctrine of res judicata.

If this suit is permitted to proceed and a conflicting decision is made, it will create uncertainty, inconsistency and legal confusion regarding the enforceability of the DA, SDA, and the Final Arbitration Award.

All the Defendants contended that the Plaintiff’s pleadings were vague, failed to specify particular acts of fraud or conspiracy, and did not disclose any reasonable cause of action.

The Plaintiff contended that the doctrine of res judicata could not be applied because the tortious claims in this case were distinct from the contractual issues determined in arbitration.

The Plaintiff also argued that the Second to Sixth Defendants were not parties to the arbitration and therefore could not rely on the Final Arbitration Award to strike out the current suit.

The Plaintiff relied on a forensic report dated 30 June 2023, which allegedly revealed that the SDA was signed without proper board approval, and therefore argued that there were triable issues of fraud and conspiracy sufficient to warrant a full trial.

The principles of law on striking out of pleadings is trite and well settled. The Court’s power to strike out a claim should be used sparingly. The test for striking out is laid down in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd (1993) 3 MLJ 36, where the Supreme Court held that this summary procedure can only be exercised when it is clearly evident that a claim or answer is plainly and 'obviously unsustainable' on the face of it. The Court must be satisfied that there is no reasonable cause of action, or that the claims are frivolous or vexatious, or that the defences raised are not arguable. This principle has been reaffirmed in numerous cases (see: Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor (2016) 3 MLJ 1; Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors

1 MLJ 473, CA; Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam (2011) 6 MLJ 70, CA). FINDINGS OF THE COURT Whether the Plaintiff’s claim disclosed a reasonable cause of action

The Court finds that the Plaintiff’s Statement of Claim did not disclose a reasonable cause of action against any of the Defendants. Although the Plaintiff purported to plead conspiracy and fraud, the pleadings were entirely devoid of material particulars required to sustain such causes of action. The pleadings failed to satisfy the minimum threshold of clarity and specificity required under Order 18 rules 7 and 12 of the Rules of Court 2012.

In Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394, the Court of Appeal explained: “[42] There is no allegation of any overt acts carried out by TC Euro in the pleadings and by necessary implication TC Euro had not carried out any overt acts. The gist of the tort of conspiracy is not the conspirational agreement alone but that agreement plus the overt acts causing damage (Marrinam v Vibart [1963] 1 QB 234; affirmed [1963] 1 QB 528). Pleading. The Statement of Claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what was the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damages occasioned to the plaintiff thereby. (THE COMMON LAW LIBRARY — Number 5 — PRECEDENTS OF PLEADINGS — Section 26 — CONSPIRACY). … [44] According to the Oxford Advanced Learner's Dictionary, (7th Ed), 'conspiracy' means 'a secret plan by a group of people to do something harmful or illegal'. … [47] Going by the dictionary definition of 'conspiracy' there could never have been any conspiracy when all element of secrecy is lost, because Inokom and Quasar themselves were informed and had full knowledge of Tan Chong's action. [48] We are unanimous that there is no cause of action in the tort of conspiracy as against TC Euro. The statement of claim is vexatious and frivolous. Just as fraud must be pleaded with great particularity, so must the constituent ingredients of the alleged conspiracy by TC. Euro be pleaded. In the circumstances, for reasons already stated, the appeal is allowed and the statement of claim against TC Euro is struck off.” [Emphasis Added]

The same was observed in the case of Ho Hup Construction Company Bhd v Zen Courts Sdn Bhd & Ors [2018] MLJU

“[125] But again, the plaintiff, from the pleadings has clearly failed to plead either of the circumstances of any alleged agreement between the defendants, the objective and intention of the said agreement, the purported overt acts of the defendants in pursuance of the agreement or in what manner the acts of the fifth defendant in particular had resulted in injury to the plaintiff. [126] In the instant case, the particulars of dishonest assistance and conspiracy and other accusations are absent. There are simply insufficient facts to support any of them. Not least against the fifth defendant. I reiterate that an allegation that the fifth defendant had committed conspiracy without condescending into the details of the alleged conspiracy is bad pleading. [127] After all, in all proceedings, the Court will only consider matters which are pleaded. The Court cannot help improve the case of the litigants which must stand or fall based squarely on what have been pleaded. Hamid Sultan JCA in delivering the decision of the Court of Appeal in Heritage Grand Vacation Club Bhd v Pacific Fantasy Vacation Sdn Bhd [2016] 4 MLJ 389 held that: “[4] It is well established that it is not the function of the court to build a case for the plaintiff/defendant inconsistent with the pleaded case. In Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, the Supreme Court had in strong terms held, and which still stands as a ‘gold standard’ in pleading rules and evidence, as follows: It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance…” [128] The plaintiff must furnish the requisite particularity by pleading the circumstances of material facts as to the questions of “who, what, where, when and how” of the alleged dishonest assistance and conspiracy in order to enable the defendants to provide a meaningful response. It cannot be emphasised enough that general statements which are vague and containing conclusory allegations do not satisfy the requirements of Order 18 r 7 and r 12. [129] The statement of claim too cannot hide behind purported averments which in truth are nothing but merely a set of formulaic recitation of the ingredients of a cause of action. In any event crucially, for this instant application by the fifth defendant, it is based on the ground of the claim not disclosing a reasonable cause of action under limb (a) of order 18 r 19 (1) of the RC 2012 which excludes consideration of affidavit evidence.” [Emphasis Added]

Based on the authorities cited above, the Court held that a Plaintiff alleging conspiracy must plead, with precision, the factual foundation upon which such a serious allegation is made. In particular, the Plaintiff must clearly state that all the Defendants agreed to commit an unlawful act intended to injure the Plaintiff. This requires the Plaintiff to outline the relationships among the Defendants and to demonstrate how they acted in concert.

The Plaintiff must also specify the circumstances surrounding the material facts of the alleged conspiracy. This includes answering the questions of “who, what, where, when, and how” the conspiracy to defraud the Plaintiff occurred. The Plaintiff is required to detail the overt acts each Defendant committed in pursuit of the alleged objective.

In this case, this Court finds that the Plaintiff has failed to meet the pleading requirements. A careful examination of the Writ and Statement of Claim shows that the Plaintiff did not specify the overt acts allegedly committed by the Defendants. Specifically, no facts were provided concerning what the Sixth Defendant and/or Ahri bin Hashim allegedly did to “cover up” the fraud. There were no overt acts identified, nor any evidence provided, for the Court to consider.

The Plaintiff’s pleadings consisted of broad allegations that were vague and lacked specific details. It is well established that a mere allegation of conspiracy is frivolous and vexatious. The Court agreed with the Defendants that this claim was marred by the mentioned deficiencies and ought to be struck out.

The Court further observed that the Plaintiff did not provide the forensic investigation report, which it claimed was the foundation of its conspiracy and fraud allegations. The claim that a forensic investigation was carried out, without supporting evidence, did not raise triable issues.

The Plaintiff also failed to specifically plead how the Sixth Defendant and Ahri bin Hashim assisted the other Defendants in concealing the alleged conspiracy. There was no explanation provided as to how the DA, the SDA, the appointment of consultants, Interim Payment Certificate No. 1, the Notice of Default, or the Notice of Termination could be regarded as instruments of fraud, especially when those matters have been known to the Plaintiff since 2014.

The facts regarding the appointment of consultants have been known to the Plaintiff since 2014. These transactions were disclosed during the arbitration proceedings. However, the Plaintiff did not object to these appointments until almost nine years later. Conversely, the Plaintiff engaged with the consultants in executing the project and accepted the results of their work.

It is trite that conspiracy involves secret acts carried out covertly. The Court finds it difficult to accept that a conspiracy could have existed when the very transactions relied upon were already within the Plaintiff’s knowledge since 2014.

In light of the above, the Court concluded that no material facts were pleaded to support the Plaintiff’s allegations of conspiracy and fraud. The Plaintiff failed to disclose a reasonable cause of action against the Defendants. Proceeding with this suit would amount to an abuse of the court’s process. Whether the Plaintiff’s claim was scandalous, frivolous, vexatious, or an abuse of process

This Court further finds that the Plaintiff’s action was an abuse of the court’s process. The allegations raised in this suit were either already decided or should have been raised in prior proceedings, including: a. The Arbitration Proceedings, b. The High Court’s decisions in OS 18 and OS 23, and c. The Consent Judgment was recorded before the Court of Appeal on 9 October 2023.

In those previous proceedings, the Plaintiff’s counterclaim was dismissed, and the Final Arbitration Award was upheld, enforced, and later settled through a set-off agreement. Despite this, the Plaintiff now seeks, through this action, to re-examine the enforceability and validity of the very same DA and SDA. The Court concurs with the Defendants that such conduct undermines the finality of litigation and amounts to an impermissible collateral attack on earlier decisions.

The Plaintiff’s conduct amounted to relitigating issues under a new guise. This Court agrees with the Defendants’ submission that this case was a clear example of vexatious litigation aimed at frustrating and delaying the execution of the valid and binding arbitration award. (see also: Mayban Allied Bhd (formerly known as Phileo Allied Bank (M) Bhd) v Kenneth Godfrey Gomez & Anor [2011] 5 MLJ 219) Whether the doctrine of res judicata applied to bar the Plaintiff’s claim

This Court placed considerable emphasis on the application of the doctrine of res judicata, both in its narrow and broader sense, in striking out the Plaintiff’s claim.

The enforceability and legality of the DA and SDA have been thoroughly ventilated and adjudicated in the arbitration, and subsequently confirmed in OS 18, OS 23, and the Consent Judgment before the Court of Appeal. The Plaintiff, having actively participated in those proceedings and relied on the same agreements in its counterclaim, is now barred from claiming that the agreements were void due to alleged fraud or conspiracy.

The Court referred to the Federal Court’s decision in Lin Wen-Chih & Anor v Pacific Forest Industries Sdn Bhd & Anor [2023] 5 MLJ 422, which held that the doctrine of res judicata applies not only to issues directly raised and decided but also to those that could and should have been raised with reasonable diligence. The Court finds that the Plaintiff had every opportunity to raise these allegations during the arbitration and in the subsequent High Court proceedings. The fact that the Plaintiff failed to do so could not be remedied now by reframing the dispute under the guise of conspiracy or fraud (see also: Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189).

The Court also accepted the Defendants’ reliance on Stesyen Minyak Kuala Nerus Sdn Bhd & Anor v Khairul Anuar Muda & Ors [2019] 8 CLJ 547 and Dr Aishah Tul Radziah L Hussin v Dr Suresh Kumarasamy & Ors [2015] 10 CLJ 222, which emphasise that res judicata applies even where the parties are not identical, as long as there is privity and the subject matter is substantially the same. In the present case, the Plaintiff had clearly raised or could have raised the allegations during the arbitration. The agreements in question were central to both sets of proceedings.

Therefore, the Court concludes that this case was clearly barred by the doctrine of res judicata, and permitting it to continue would go against the necessity for finality in litigation. Whether the allegation of fraud created a triable issue

The Plaintiff claimed that the fraud was only uncovered after a forensic investigation allegedly carried out in 2023, which purportedly revealed a conspiracy involving all the Defendants. However, the Court finds this assertion to be unsubstantiated and unconvincing.

Firstly, the Plaintiff failed to produce the forensic investigation report despite heavily relying on it. The Court agrees with the Defendants’ arguments that the Plaintiff merely made assertions of fraud without providing material details or supporting evidence. This failure to adequately plead fraud according to established principles was detrimental to the Plaintiff’s case.

In Tenaga Nasional Bhd v Irham Niaga Sdn Bhd & Anor [2010] 3 MLRA 126, the Court of Appeal held that general allegations of fraud are inadequate and that specific particulars must be pleaded and proven. The Plaintiff failed to plead: a. How the alleged fraud occurred, b. When it occurred, c. Who committed it, and d. What overt acts were undertaken to carry it out.

Furthermore, the Plaintiff actively relied on the SDA during the arbitration to support its counterclaim. It was only after that counterclaim failed that the Plaintiff began alleging the same SDA was fraudulent and invalid. This shift in stance further undermined the Plaintiff’s credibility and reinforced the conclusion that the fraud allegation was a mere afterthought designed to circumvent the previous findings.

The Court also agrees with the Sixth Defendant’s submission that if the Plaintiff genuinely believed there was fraud, it could and should have raised this issue during the arbitration or enforcement proceedings. It did not. The late assertion of fraud, unsupported by evidence and lacking specific pleading particulars, did not turn this case into one requiring a trial. On the contrary, the claim was clearly unsustainable and met the threshold for striking out.

Additionally, the Plaintiff argued that the alleged fraud only came to light following an internal investigation, which purportedly led to the filing of this current suit. However, this Court observed that the Writ and Statement of Claim in the present suit were filed on 21 September 2023, whereas the Consent Judgment before the Court of Appeal, by which the Plaintiff unequivocally agreed to set off RM28 million pursuant to the Final Arbitration Award, was recorded later on 9 October

If, as claimed, the Plaintiff had already discovered the fraud before 21 September 2023, it is entirely inconsistent and perplexing that the Plaintiff nevertheless proceeded to enter into the Consent Judgment at the Court of Appeal thereafter. This sequence of events strongly supports the Defendants’ contention that the present suit was not filed in genuine pursuit of justice, but rather as a tactical move to delay and obstruct the enforcement of the Final Arbitration Award.

For the reasons set out above, this Court finds that the Plaintiff’s Writ and Statement of Claim lacked a reasonable cause of action, were based on vague, speculative, and unparticularised allegations, and constituted a clear abuse of process. The suit was barred by the doctrine of res judicata, and the claims of fraud and conspiracy were bereft of evidentiary or pleading support.

Therefore, the applications by the First to Fifth Defendants (Enclosure 6) and the Sixth Defendant (Enclosure 25) to strike out the Plaintiff’s claim were granted, with costs of RM5000.00 for each Enclosure. Dated 15 July 2025 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Noramir Ahmad Bin Ibrahim (Messrs Azmi Fadzly Maha & Sim) For the 1st-5th Defendants : Weera Premananda, Aswath Ramakrishnan & Nur Irdina Syahirah binti Mohammad Wardi (Messrs Ahmad Deniel, Ruben & Co.) For the 6th Defendant : Lesley-Ann Yong (Messrs Nandrajog)