Squad Security Joint Services (M) Sdn. Bhd. v Jayvinder Singh A/L Surjit Singh (22 – 1433 - 2010)

This is an application on the part of Plaintiff under the striking out inherent jurisdiction of this Honourable Court for the following orders namely :

That the Defendant’s Notice of Application dated 17 March 2017 for further directions from the High Court pursuant to the liberty to apply clause contained in the Consent Judgment dated 10 October 2013 (Enclosure 10) be struck out forthwith; and 2

In the event that the Plaintiff’s application is herein be dismissed, the Plaintiff be given leave to file the Plaintiff’s Affidavit in Reply to rebut the facts alleged therein.

The Plaintiff’s claimed that the Defendant’s Notice of Application is an abuse of the process of this Honourable Court in that this Honourable Court is functus officio, this Honourable Court is not seized with jurisdiction to hear the Defendant’s Notice of Application dated 17 March 2017 and the doctrine of estoppel operates against the Defendant.

The cause papers for this application and have been filed are as follows :

The Defendant’s Notice of Application dared 17

Defendant’s Affidavit in Support dated 14 March 2017 (Enclosure 11);

Plaintiff’s Affidavit in Reply dated 12 May 2017 (Enclosure 12);

Defendant’s Affidavit in Reply dated 31 May 2017 (Enclosure 13);

Plaintiff’s Notice of Application dated 12 April 2017 (Enclosure 17);

Plaintiff’s Affidavit in Support dated 12 April 2017 (Enclosure 18);

Defendant’s Affidavit in Reply dated 11 May 2017 (Enclosure 19). 3 Previously there were two applications (enclosure 10 and 17) before Yang Arif Tuan Gunalan J and was decided on 29 September 2017. The matter went on appeal to the Court of Appeal. On 20 April 2018 the Court of Appeal decided that the matters to be reheard by another judge of the High Court in Shah Alam. Thus the matter came for case management before me on 14 August 2017. Both the learned counsel for the Plaintiff and the Defendant had agreed that Enclosure 17 to be heard first leaving behind Enclosure 10. The Plaintiff’s solicitors had indicated to this Honourable Court that the Plaintiff will rely on the Plaintiff’s written submission filed by the Plaintiff dated 9 June 2017 in the earlier proceeding. The Defendant’s solicitor had filed in Defendant’s written submission dated 26 July 2018. The Defendant’s solicitor had again filed in the Defendant’s Written Submission in Reply dated 3 August 2018 and the Plaintiff’s solicitor had made such reply in the Plaintiff’s Written Submission in Reply dated 6 August 2018. As the matter before me now only confined to Enclosure 17, therefore all issues raised in the Plaintiff’s Written Submission which fall outside the scope of Enclosure 17 shall be disregarded. As such, the issues raised by the Plaintiff in Enclosure 17 as particularized at paragraph 34 of the Defendant’s Written Submission are summarized as follows :

That the present proceedings has resulted in parties entering into a Consent Judgment and as such, this Honourable Court is Functus Officio and has no jurisdiction to hear Enclosure 10; 4

That the issue before this Honourable Court is Res

That Estoppel operates against the Defendant from making Enclosure 10. As such, the following issues raised in the Plaintiff’s Written Submission shall be disregarded entirely namely that Enclosure 10 is Defective for non compliance with Form 57, Rules of Court 2012 (Part A - Plaintiff’s Written Submission) and Laches (Part G – Plaintiff’s Written Submission).

In view of the above, Enclosure 17 is the Plaintiff’s application to strike out the Defendant’s application for liberty to apply under Enclosure 10 under the inherent jurisdiction of this Honourable Court. The Plaintiff is essentially seeking a summary dismissal of Enclosure 10 without hearing the merits. In deciding Enclosure 17, documents Enclosure 18 and 19 are much relevant. In this respect, Enclosure 10, 11, 12 and 13 would be disregarded in determining and considering the Plaintiff’s application under Enclosure 17. Therefore, for purpose of this proceeding, I would only confined myself as to the merit of the Plaintiff’s application on Enclosure 17 solely and nothing else as agreed by both the counsel for the Plaintiff and the Defendant. 5

Having gone through the affidavits filed by the respective parties, I have concluded the facts below :

The Defendant was a shareholder of the Plaintiff.

The other shareholders were Amarjit Singh a/l Kartar Singh (“Amarjit Singh”), Estate of Kancha Lama a/l Sato Lama, Ismail bin Aris and Tengku Ahmad bin Tengku Mohammed.

A dispute had arisen between the shareholders resulting in the Defendant filing an oppression petition against the Plaintiff under section 181, Companies Act 1965.

The Plaintiff thereafter commenced civil proceedings against the Defendant in the High Court of Malaya in Shah Alam (the “High Court”) Civil Suit No. 22-1433-2010 for, amongst others, purported breaches of fiduciary duties on the part of the Defendant.

Ultimately the parties mutually agreed to resolve all disputes between them.

On 10 October 2013, the Plaintiff and the Defendant 6 entered into a Consent Judgment dated 10 October 2013 which, inter alia, states as follows :

that Amarjit Singh a/l Kartar Singh shall purchase on a basis of thirty percent (30%) of the Defendant’s shareholding in the Plaintiff’s Company based on a valuation of the said shares done by any top 4 accounting firms in Malaysia, namely Deloitte Kassim Chan or Messrs Ernst & Young or Messrs Pricewaterhouse Coopers or Messrs KPMG Malaysia based on either the method of the income or market or cost-based approach or on a going concern basis and the parties are given liberty to apply in respect of the said method of valuation; ………………..

that the Amarjit Singh a/l Kartar Singh shall pay the purchase price of the said shares under paragraph 1 above to the Defendant within a period of four (4) months from the date of the Valuation Report, failing which the Defendant shall be entitled to interest of 5% per annum from the date of expiry of the four (4) months period on any outstanding balance till full settlement of the same;

that the Defendant shall pay the sum of RM211,000.00 to the Plaintiff and Amarjit Singh a//l Kartar Singh towards account of 7 the Defendant’s personal borrowings and owings to the Plaintiff and Amarjit Singh a/l Kartar Singh respectively which sum shall be set off against and deducted from the purchase price of the said shares under paragraph 1 above and any further dividends (if any) that may be due and owing to the Defendant as at the date of the purchase of the said shares.”

The Consent Judgment provided the parties for a mechanism to realise the Settlement Sum, i.e. the value of the Defendant’s 30% shareholding in the Plaintiff Company, which is to be paid by the aforesaid shareholder and Director of the Plaintiff to the Defendant in accordance with the terms set therein.

Subsequent to the Consent Judgment being entered, the parties mutually appointed Deloitte vide the Letter of Engagement dated 23.05.2014 (the “Letter of Engagement”) to provide valuation advisory services to estimate the range of fair values of the entire issued and paid-up share capital of the Plaintiff Company (the “Valuation Services”) as at the Valuation Date to be determined. The terms of the Letter of Engagement was agreed by the Plaintiff and the Defendant. 8

It is pertinent that parties recognised and acknowledged that Deloitte was reliant on the information provided by both the Plaintiff and the Defendant. This was expressly stated in the Letter of Engagement in the following terms :

The Services will be based substantially on information provided by and on behalf of the Clients, supplemented by publicly available information.

(ii) The results of the Services will be based upon the information provided by the Clients.

(iii) Our target, however, is based, amongst others, on the following assumptions :

You will make the necessary arrangements with the relevant management personnel to provide us with all the necessary assistance and to furnish us with documents that we deem necessary for our work

(iv) The performance of the Services is heavily dependent upon Client, the Target and their respective advisors (where applicable) having provided DCAS not only accurate and complete versions of materials and information requested by DCAS, but also upon Client, the Target and their respective advisors having provided all relevant 9 materials and information and answered DCAS questions fully and accurately.

Client shall cooperate with DCAS in the performance by DCAS of its services there under, including, without limitation, providing DCAS with reasonable facilities and timely access to data, information and personnel of Client. Client shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of all data and information provided to DCAS and will, without limitation, be responsible for the designation of a management-level individual or individuals to be responsible for all decisions with respect to the services and DCAS’s (sic) involvement in activities associated with the services, including, without limitation, the adequacy thereof, for purposes of the performance by DCAS of its services hereunder.

Upon receiving the Plaintiff’s Audited Financial Statements for the year 2011 to 2013, Deloitte requested the Plaintiff to comply with the Information Request List and certain other information and extractions of financials pertaining 10 to the Plaintiff for the purposes of the Valuation Services, as per the accounting practice standards.

Instead of complying with the above, the Plaintiff unilaterally sought to impose its own key parameters for the purposes of the Valuation Services without providing sufficient information and documentary evidence in support thereof.

Given that the information and documentary evidence provided by the Plaintiff to Deloitte was/were rather skeletal, incomplete and unsubstantiated, the Defendant was not in the position to consent to the aforesaid key parameters as he too does not have access to any financial information, documents and business affairs of the Plaintiff by virtue of his unilateral removal as the Managing Director of the Plaintiff Company on 29 June 2010.

The Plaintiff’s continued failure to provide all the necessary relevant information and documents required by Deloitte to carry out its Valuation Services prompted Deloitte to warn parties that in such incessant circumstances it will be compelled to withdraw from its engagement due to the limitations imposed by the Plaintiff. 11

After much hesitation, on 25 November 2014, the Plaintiff yet again provided skeletal, incomplete and unsubstantiated information and documents to Deloitte.

Notwithstanding the above, Deloitte prepared the Initial Observation Memorandum dated 02 January 2015 (“First Draft Valuation Report”) using the Income-based Approach (“said Valuation Approach”) whereby the entire issued and paid-up share capital of the Plaintiff as at 31 May 2014 (“First Valuation Date”) was valued to be in the estimated range of fair market values of between RM625,000.00 to RM751,000.00 only.

The Defendant strenuously objected to the First Draft Valuation Report as it was based solely on the skeletal, incomplete and unsubstantiated information and documents provided by the Plaintiff which was plainly accepted and adopted by Deloitte without seeking the Defendant’s view, comments and approval in respect thereof.

Deloitte thereafter acknowledged that some of the queries raised by the Defendant previously have not been put across to the Plaintiff and will address it as soon as the Plaintiff responds. 12

(r)

The Defendant then raised his concerns pertaining to the Second Draft Valuation Report and insisted that the Plaintiff provide the said Pertinent Documents. In reply, the Plaintiff contended, inter alia, that the Defendant is a Third Party and as such is not privy to the said Pertinent Documents.

Deloitte too raised its concerns as it was not in the position to comment on the hourly service rates and the number of security guards employed by the Plaintiff, which it acknowledged is the key driver to the projections, as the Plaintiff had provided a relatively lower headcount of security guards.

After much hesitation, the Plaintiff agreed to allow only Deloitte to view the selected documents and informed that it is in the midst of preparing the said Pertinent Documents. In reply, the Defendant 13 stressed that the said Pertinent Documents ought to be the basis of the projections and insisted that he, being the engaging party herein, be allowed to view the said Documents as he is in the position to identify and verify the same for Deloitte.

By reason of the Plaintiff’s unreasonable demeanour, Deloitte then proposed to obtain the said Pertinent Documents from the Plaintiff via the Data Room Procedure, whereby the Defendant will be given reasonable access to the said Documents, but the said proposal was turned down in its entirety by the Plaintiff on the pretext that it will purportedly impair the independence of Deloitte and if at all only Deloitte is allowed to review the said Documents that the Plaintiff considers necessary for the Valuation Services.

Despite the above, Deloitte went on to revise the Second Draft Valuation Report (“Third Draft Valuation Report”) on 02 March 2016 and the Defendant objected to it as the Plaintiff has failed to provide the said Pertinent Documents as requested by Deloitte.

The Defendant explained to Deloitte the significance of and the basis for the adoption of the said 14 Pertinent Documents in the Valuation Exercise.

In complete disregard of the numerous requests by the Defendant for access to and the adoption of the said Pertinent Documents in the Valuation Exercise and the information and documents provided by the Defendant, Deloitte proceeded to finalise the Third Draft Valuation Report on or about 28 March 2016 (“Final Valuation Report”) whereby the entire issued and paid-up share capital of the Plaintiff as at 31 May 2014 (“First Valuation Date”) was revised and valued to be in the estimated range of FMV of between RM873,000.00 to RM1,000,000.00 only with the corresponding value of the Defendant’s 30% shareholding in the Plaintiff Company at between RM262,000.00 to RM303,000.00 only.

The Defendant strenuously objected to the Final Valuation Report and contends that the Plaintiff Company’s share value would have had a significant impact if the information and documents relayed by the Defendant and the said Pertinent Documents was/were taken into account by Deloitte and adopted in the Valuation Exercise. (aa) It is pertinent to note that Deloitte has at all material times failed to ensure that the Plaintiff has complied 15 with the non-exhaustive Information Request List which, as per the accounting practice standards, would rightly comprise the said Pertinent Documents. In other words, Deloitte failed to carry out its duties properly and professionally and conducted itself contrary to the terms of the Letter of Engagement. (bb) The Defendant states that the Final Valuation Report does not reflect the true and fair valuation of the Plaintiff Company’s shares as the said Method of Valuation adopted by Deloitte has been corrupted by the aforesaid inconsistencies and irregularities by both the Plaintiff and Deloitte which has ultimately caused the force-down of the Plaintiff Company’s share value as explained in the Defendant’s Advisor’s Valuation Report.

(cc) Based on the Defendant’s Advisor’s Valuation Report, upon taking into account the limited information and documents and adopting the same figures, PE factor and methodologies applied by Deloitte, the Plaintiff Company should be valued at RM15,000,000.00 with a corresponding valuation of the Defendant’s 30% shareholding at RM4,500,000.00. 16

(dd) This state of affairs resulted in the Defendant filing Enclosure 10 pursuant to Clause 1 of the Consent Judgment, requesting, inter alia, that the relevant documents be furnished by the Plaintiff to Deloitte for a proper valuation to be carried out. (ee) On 12 April 2017, the Plaintiff filed Enclosure 17. (ff) In Enclosure 17, the Plaintiff takes the position that Enclosure 10 is an abuse of process of court for the following reasons :

That the present proceedings has resulted in parties entering into a Consent Judgment and as such, this Honourable Court is functus officio and has no jurisdiction to hear Enclosure 10;

(ii) That the issue before this Honourable Court is res; and

(iii) That estoppel operates against the Defendant from making Enclosure 10. Having considered the above fact, I noticed that both parties had entered into a Consent Judgment dated 10 October 2013. The Plaintiff would want to strictly follow and enforced the Consent Judgment. Nevertheless the Defendant on the other hand is seeking to do under Enclosure 10 is to give effect to the Consent Judgment by merely seeking the Court for further directions as to the method of 17 valuation which was initially done by Deloitte and to enable a proper valuation of the shares. It is also to ensure a fair price for the purchase of the Defendant’s shares in the Plaintiff. It is not intended to vary the terms of the consent Judgment. In deciding the Plaintiff’s application, it served with purpose to view the whole content of the Consent Judgement as follows :

that Amarjit Singh a/l Kartar Singh shall purchase on a basis of thirty percent (30%) of the Defendant’s shareholding in the Plaintiff’s Company based on a valuation of the said shares done by any top 4 accounting firms in Malaysia, namely Messrs Deloitte Kassim Chan or Messrs Ernst & Young or Messrs Pricewaterhouse Coopers or Messrs KPMG Malaysia based on either the method of income or market or cost-based approach or on a going concern basis and the parties are given liberty to apply only in respect of the said method of valuation;

that the Plaintiff shall bear the cost of the said valuation referred to in paragraph 1 above;

that the Amarjit Singh a/l Kartar Singh shall pay the purchase price of the said shares under paragraph 1 above to the Defendant within a period of four (4) months from the date of the Valuation Report, failing which the Defendant shall be entitled to interest at the rate of 5% per annum from the date of expiry of the four (4) months period on any outstanding balance till full settlement of the same; 18

that the Defendant shall pay the sum of RM211,000.00 to the Plaintiff and Amarjit Singh a/l Kartar towards account of the Defendant’s personal borrowings and owings to the Plaintiff and Amarjit Singh a/l Kartar Singh respectively which sum shall be set off against and deducted from the purchase proce of the said shares under paragraph 1 above and any further dividends (if any) that may be due and owing to the Defendant as at the date of the purchase of the said shares;

that the Plaintiff and/or Amarjit Singh a/l Kartar Singh shall cause Megapacific Zaricon Sdn Bhd (Company No. 442500- V) to transfer the car bearing registration number WJK 6 to the Defendant upon settlement of paragraphs 3 and 4 above;

that the Plaintiff shall withdraw the suit herein with no order as to costs;

that Amarjit Singh a/l Kartar Singh shall withdraw Shah Alam Sessions Court Suit No : S3-52-2602-2010 against the Defendant with no order as to costs;

That the Defendant shall withdraw his pending appeal in Court of Appeal Civil Appeal number no W-02(NCC)(A)- 1611-07/2013 against the Plaintiff, Amarjit Singh a/l Kartar Singh, Arvinjit Singh a/l Amarjit Singh, Kiranjit Singh a/l Amarjit Singh, and Graha Tunggal Marble (M) Sdn Bhd with no order as to costs; and 19

That the Defendant shall withdraw all police reports lodged by the Defendant against Amarjit Singh a/l Kartar Singh, Arvinjit Singh a/l Amarjit Singh, Kiranjit Singh a/l Amarjit

That this Consent Judgment is entered in full and final settlement of all claims between the Plaintiff, Amarjit Singh a/l Kartar Singh and the Defendant on all matters in relation to the Plaintiff Company and also Graha Tunggal Marble (M) Sdn Bhd. FIRST ISSUE Whether the Court has Functus Officio??

In deciding this issue, it is best to view the decision of the Federal Court pertaining to the law on Consent Judgment. In Tio Chee Hing v. Tractors Malaysia (1973) MLJ 66 (FC), delivering the judgment of the court held that : “………....So long as the judgment stands, no one who was a party in those proceedings can re-open the matter. See Hill v Hill [1954] P 261; [1954] 1 All ER 491. That is what plaintiff is trying to do in this case. I can see no ground for his doing so since the judgment was the result of his admission. He was fully cognizant of the proceedings and clearly bound by estoppel from litigating the same matter in a different form or guise. A judgment by consent or by default, operates as an estoppel between the parties and their privies: Shaik Sahied bin Abdullah Bajarie v Mootoo Carpen Chitty

2 MC16." 20 In another case of : Khaw Poh Chhuan v Ng Gaik Peng (1996) 1 MLJ 761 (FC), delivering the judgment of Court held as follows : “…………..it is well established that a perfected consent order can only be set aside in a fresh action filed for the purpose: see eg

Huddersfield Banking Co Ltd / Henry Lister & Sons Ltd [1895] 2 Ch The consent order was given in Originating Summons No 209/1973. It is now sought to have it set aside in the subsequent and separate civil suit concerned in the instant appeal. The civil suit is of course the fresh action for the purpose of setting aside the consent order …………………” In furtherance to this, what tantamount to Functus Officio has been fully explained in the case of : Hock Hua Bank v Sahari Bin Murid

1 MLJ 143 (FC), delivering the judgment of the court held that: “………....the learned judge was functus officio; (2) the court had no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it had been entered or an order after it has been drawn up, except under the slip rule, so far as is necessary to correct errors in expressing the intention of the court, unless it is a judgment by default or made in the absence of a party at a trial or hearing; (3) if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will He to impeach the original judgment; (4) in this case the learned judge had no jurisdiction to set aside his own order and the original order must he restored, leaving it to the respondent to take out a fresh action to set aside the order on the ground of fraud..................” 21 Similarly, in the case of : In Hong Kong & Shanghai Banking v. Hj. Salam bin Hj Daud (2002) 3 MLJ 483, “………….In the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawai Teliti Sdn Bhd [1995] 3 MLJ 189, Peh Swee Chin FCJ said (at p 197): What is res judicata ? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth: res judicata pro veritateaccipitur…………….”. The learned counsel for the Plaintiff relied heavily on the authority of : Phuah Beng Chooi @ Koh Kim Kee (P) & Ors. v. Koh Heng Jin @ Koh Heng Leong & Ors. (2007) 2 MLJ 458 since the issues raised and circumstances of the case are almost similar. Nevertheless the only difference being that this case involved an application to set aside the consent order. Both parties have recorded a consent order. The terms included amongst others are that Henry Butcher were to determine the valuation of certain palm oil estates and KPMG were to determine the amounts due to each vendor. The parties were not happy with the valuation reports of Henry Butcher as there was a disparity with other valuations. The gists in the above case are amongst others as follows : 22

The consent order was drawn up by the parties and agree by the parties. It is binding and it serves as an estoppel;

The consent order has been perfected and acted upon by Henry Butcher and KPMG and the parties themselves. The court is functus officio and it has no power to vary or set aside a perfected order;

That the consent order is binding and acts as an estoppel;

The clear aim and object of the parties is to hold themselves honourably to be bound by the determination of Henry Butcher ang KPMG;

The consent order sets out the entire agreement of the parties;

The terms of the consent order were settled at a price to be independently determined by KPMG based on the valuation report prepared by Henry

The sanctity of the consent order here must be preserved at all costs; 23

The solicitors should not be permitted to ferment discord and re-agitate litigation. The valuation report of Henry Butcher and the accountant’s report of KPMG are the conclusive determination of the respective purchase price and is final and binding and cannot be disputed or appealed;

The court is functus officio and the order cannot be altered, amended, varied or set aside except to correct mistakes or slips in expressing the intention of the court. Having quoted the above case, the learned counsel for the Plaintiff submitted that the contents of the consent judgment would serves as an estoppel against the Defendant. Where the consent judgment is entered, the court is functus officio and the matter is considered settled. In view of this, the consent judgment cannot be set aside or varied now. As both parties had agreed to appoint Deloitte as valuer, they are bound by the Final Valuation done by Deloitte. In furtherance, the counsel submitted that the Defendant has no right to compel the Plaintiff to deliver the documents sought since the Plaintiff’s only obligation is to provide Deloitte with information that Deloitte’s think is necessary and it was already done.

I have kept an open mind pertaining to the above case and I have read the whole text of the case. Having read in details, I found that the Plaintiff in the above case together with the Fifth and Seventh 24 Defendants had applied to set aside the consent order and the original application to be reinstated for hearing. Furthermore, the consent order did not have a liberty to apply clause included. The consent order stipulates that the valuation reports shall be final and binding and shall not be the subject of any dispute or appeal in any manner whatsoever amongst all the parties. In the above case, the language and tome frames agree by the parties do not permit any room for challenge, variation or setting aside. What is more important is that the above case did not deal with instances where the consent order contains a cause entitling either party the liberty to apply. In view of this issue, I have the advantage of reading the Plaintiff’s Affidavit in Support. Nevertheless I found out that the Defendant’s action is not to vary or set aside the consent judgment. The court would only functus officio in instances where there is a variation or setting aside the order. This is clearly in the case of : Abdul Razak bin Sheikh Mahmood & Ors. v. Amanah Raya Berhad & Ors. and other appeal (2018) 1 LNS 30 (CA), delivering the judgment of the court held that : “……………[20] To recapitulate, issue 1 was concerned with whether there were grounds apparent to us which would allow the Appellants to set aside the Consent judgment dated 28.7.2010. The law on setting aside consent Judgment is more than settled and it is this. A consent judgment is only recorded when the respective litigants had agreed in writing as to how to resolve a legal suit. Once the consent judgment had been perfected, the parties are bound by it and the Court is duty bound to enforce the agreed terms of the same. The Court also cannot vary any of the agreed 25 terms unless with the mutual consent of the parties. Hence, one can say that the Court is functus officio or in other words, the Court is bereft of jurisdiction to entertain any request to set aside such judgment…………….” To my mind the Defendant’s is seeking to give effect to the Consent Judgment. This is clearly prescribed under Clause 1 of the Consent Judgment, as below : “………….that Amarjit Singh a/iKartar Singh shall purchase on a basis of thirty percent (30%) of the Defendant’s shareholding in the Plaintiff’s Company based on a valuation of the said shares done by any top 4 accounting firms in Malaysia, namely Deloitte Kassim Chan or Messrs Ernst & Young or Messrs Pricewaterhouse Coopers or Messrs KPMG Malaysia based on either the method of the income or market or cost-based approach or on a going concern basis and the parties are given liberty to apply in respect of the said method of valuation;…………………” From the above reading, it is clearly in my mind that what the Defendant is seeking to do through Enclosure 10 is to seek directions from this Honourable Court to work out the method of valuation, which the Defendant is entitled to do so and falls within the scope of the liberty to apply clause stated in the Consent Judgment. The Defendant is not seeking to vary, set aside or even alter the Consent Judgment. The sanctity of the Consent Judgment will remain untouched and there is no attempt whatsoever to revive the previous proceedings before the Court which resulted in parties entering into the Consent 26 Judgment. SECOND ISSUE Is it Res Judicata/ Estoppel??

The law on Res Judicata and Estoppel is fully explained in the case of : Asia Commercial Finance (M) Sdn. Bhd. v. Kawal Teliti Sdn. Bhd. (1995) 3 MLJ 189 (SC), delivering the judgment of the Court held that : “……………What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritateaccipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest rei publicaeut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debetbisvexariproeadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicatum. the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic wav as estoppel by record. Since the two doctrines are the same, it 27 is no longer of any practical importance to say the res judicata is a rule of procedure and that an estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion…………....” The Plaintiff’s learned counsel submitted that this Court is barred from hearing the Defendant’s application in Enclosure 10 under the principles of Res Judicata and Estoppel. Upon reading the Plaintiff’s Affidavit in Support, I hardly find any reasons stated as to why this court is barred. I agree with the learned counsel for the Defendant in that Enclosure 10 is not intended to re-litigate the issue which was resolved by the Consent Judgment. It merely seeking this Court for further directions as to the method of valuation. As such the issue of Res Judicata and Estoppel does not arise. THIRD ISSUE Any Liberty to apply??

The learned counsel for the Plaintiff submitted that when the Consent Agreement was entered into, the terms were settled. The only issue that needed to be worked out was the calculation of the value of the Defendant's shares. Deloitte had set out method of valuation at the outset itself. It is here that the 'liberty to apply' becomes relevant, namely that during the process of valuation parties were at liberty to apply to the court in the event they disagreed with the method used by Deloitte vis-a-vis whether the method used should be income or 28 market or cost based approach or on a going concern basis. The period during which either party could have made this application would be from the date of Deloitte's appointment i.e from the outset until its Final Valuation report. During this period despite complaining, the Defendant did not make any application to this court on the issue of method. As the Final Valuation by Deloitte has been made, the valuation is now 'worked out' and completed, the clause on liberty is no longer competent and cannot be the basis of any applications. The court is functus officio on this issue. It is only the enforcement of the Consent Judgement in terms of money paid or transfer that need to be worked out and not the valuation of shares.

Having considered the argument, and upon reading the case on point on this issue : Zen Courts Sdn. Bhd. v. Bukit Jalil Development Sdn Bhd & Ors (2017) 1 MLJ 301 (FC), there was a buy-out order. Under the buy-out order, the parties were given liberties to apply. A valuation report was filed in court but the appellant was not satisfied with the valuation report. The appellant was unhappy with the valuation report of his shares and applied to the court for a cross-examination of the valuation experts to determine the true value of his shares. In opposing the application, the second respondent averred that the appellant’s application was entirely outside the terms of the order of the court. The Federal Court, held that the application does not amount to a variation. Delivering the judgment of the court held that : 29 “……..[20] In the current appeal before us, the essence of the matter was the buy-out of the appellant's 30% shareholding of the first respondent company. What was left to be done by the court was to determine the final value of the shares. There is express provision in sub-order (v) that the court shall determine the final value. …………………….. [22] ... We were satisfied that the application of determining the final value of the shares, as prayed for in end. 80, would fall squarely within the context of the phrase 'liberty to apply' and was not a variation of the consent order. [23] Permitting the appellant to make representations on the valuation report by way of cross-examination of the valuation experts, by no account would vary the buy-out order. In fact, it does make good commercial sense that parties be entitled to challenge any valuation. if it were to be unreasonably high or low in the circumstances of the case. ……………… [25] Ultimately, whether an application for variation may be allowed under 'liberty to apply' depends very much on the purpose of the application, say, whether the application is necessary to obtain the decision of the court to enforce the agreement without varying the essence of the order, or whether it has the effect of varying that agreement. If it varies the essence of the agreement, then the application must fall outside the ambit of 'liberty to apply'. [26] Our 'order in terms' to end. 80, granting the appellant the right to cross-examine the valuer, call experts and adduce the necessary evidence if it wants to, in short was the bolts and nuts, that were necessary to enforce the essence of the agreement…………………” 30 With respect to the authority cited by the Plaintiff’s counsel, I am more inclined to follow the decision in the case of : Tong Lee Hwa & Anor v Chin Ah Kwi (1971) 2 MLJ 75 (FC), delivering the judgment of the court held that : “…………(6) the words “liberty to apply” in an order, prim a facie, mean that when the order was drawn up its working out might involve matters on which it might be necessary to obtain a decision of the Court;…………….” In another case of : Chew Hon Keong v Betterproducts Industries Sdn Bhd & Ors (2013) 7 MLJ 196 (CA), the Court was faced with 2 applications, one for the appointment of an independent valuer and the other to dissolve the consent order. Mary Lim J, as she then was, in allowing the first application and dismissing the second, stated as follows: “………….[37] In determining whether the circumstances warrant a second look at the terms of the order, including one reached by consent, the terms and the conduct of the parties are relevant considerations. The provision of a 'liberty to apply' suggests that parties have expressly reserved their right to return to court for either further orders or directions. This phrase, 'liberty to apply', is a term agreed between the parties giving themselves an opportunity to approach the court again on matters relating to or for the purpose of implementing and giving effect to the order………….” 31 To my mind, it is clear that Enclosure 10 was never intended to vary, set aside or alter the Consent Judgment. The prayers sought by the Defendant vide Enclosure 10 speak for themselves. The Defendant is not seeking for Deloitte to be replaced by another valuer. The Defendant is not seeking to withdraw itself from the Consent Judgment and neither seeking to re-litigate the dispute between the parties. The issuance of the Final Valuation Report does not expunge the Defendant’s right for liberty to apply under the Consent Judgment. It merely exercise the Defendant’s rights to ensure that the valuation be conducted as required under the Letter of Engagement and the Consent Judgment. I need to stress again that the liberty to apply clause is solely confined to the method of valuation and not revaluation of shares after the initial valuation has been completed. It is also an established fact that the liberty to apply clause are procedural only and are intended to facilitate the working out of the said consent judgment. As the Defendant’s does not seek to vary or set aside the Consent Judgment but merely seeking further directions from this Honourable Court to enable proper valuation of the shares, it is my considered view that this Honourable Court is empowered and having jurisdiction to hear the Defendant’s application in Enclosure 10 and to grant reliefs sought for. This court had full inherent jurisdiction and powers as provided to compel the performance in obligation and terms by the parties to the Consent Judgment. 32

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Plaintiff’s application (Enclosure 17) is misconceived and be dismissed with cost of RM3,000.00. As such, the Defendant’s application (Enclosure 10) is set for hearing. Dated 7 September 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff: Datuk Watson Peters, Ranjit Kaur and Elyna Nabila (Messrs. S.L. Leong, Kartina & Partners) For the Defendant: Mathew Thomas Philip, Balan Nair and Edwin Bak (Messrs. Thomas Phillip)