Symmid Corporation Sdn. Bhd. v Nurhaslina Binti Mohamed Nor (WA-22NCC-811-11/2024)

DATO’ NORHISAM BIN MOHAMED NOR (No. K/P: 740731-06-5283)

DATO’ NORHAZRI BIN MOHAMED NOR (No. K/P: 760606-06-5283) S/N 2zxpqvZ3NUKusoeIGkyS8Q

NURHAFIZAH BINTI MOHAMED NOR (No. K/P: 930314-14-5482)

NURKHAIRUN NISA BINTI MOHAMED NOR (No. K/P: 961005-33-5014)

NOR ZULFAQAR BIN MOHAMED NOR (No. K/P: 981027-06-5359)

MESRIAH BINTI KADIRAN (No. K/P: 650218-01-3272)

SYMMID CORPORATION SDN BHD [No. Syarikat: 200301023362 (625782-U)]

PUBLIKA ENTITY SDN BHD [No. Syarikat: 201801013272 (1275288-V)]

ADMIRAL DREAMS SDN BHD [No. Syarikat: 201801013468 (1275484-V)]

NOUR VISION SDN BHD [No. Syarikat: 201801014740 (12767656-T)]

PROMINENT STRIKES SDN BHD [No. Syarikat: 201801013002 (1275018-A)]

ELAF FOOD SDN BHD [No. Syarikat: 200901006086 (849042-A)]

NOKTAH LAKSAMANA SDN BHD [No. Syarikat: 201801013449 (1275465-K)] S/N 2zxpqvZ3NUKusoeIGkyS8Q

CREATE TEQ SDN BHD … DEFENDAN - [No. Syarikat: 201801026200 (1288221-V)] DEFENDAN GROUNDS OF JUDGMENT (Enclosures 3, 4, 25, 58, 70 and 81)

These are the grounds of my decision delivered on 3.7.2025 in respect of the following interlocutory applications: i) Enclosure 70 – the application by the 1st, 3rd to 5th, and 7th to 13th Defendants in the Counterclaim (collectively, the “Counterclaim Defendants”) to strike out the Counterclaim against them under Order 18 Rule 19(1)(a),

(b), (c) and (d) of the Rules of Court 2012; ii) Enclosure 58 – the application by the 14th Defendant in the Counterclaim, Create Teq Sdn Bhd (the “14th Counterclaim Defendant” or “Create Teq”), to strike out the Counterclaim against it; iii) Enclosure 81 – the application by the 6th Defendant in the Counterclaim, (the “6th Counterclaim Defendant” or “Mesriah”), to strike out the Counterclaim against her; S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 4 of 43 iv) Enclosure 60 – the Plaintiff’s application for summary judgment against the Defendant in the Main Suit; and v) Enclosure 25 – the Counterclaim Defendant’s in the Main Suit (“Counterclaim Plaintiff”) application for prohibitory injunction and Mareva injunction.

Having heard submissions from all parties and having considered the affidavit evidence filed, I delivered my decision as follows: i) Enclosures 70, 58, 81 and 60 are allowed; ii) Enclosure 25 is dismissed; and iii) Enclosure 3 is rendered academic by reason of the Court’s decision on Enclosure 60 (Plaintiff’s summary judgment application).

These Grounds of Judgment focus primarily on the striking out applications in Enclosures 70, 58 and 81. As Enclosure 60 was uncontested, no detailed reasoning is required for that application. Similarly, Enclosure 25 was dismissed as a consequence of the Court’s decision to allow Enclosures 58, 81 and 60, and therefore requires no separate reasoning. S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 5 of 43 A]

The Plaintiff who is also the 7th Defendant in the Counterclaim (“Symmid” or the “Plaintiff”) is a company incorporated in Malaysia. It commenced the present proceedings against Nurhaslina binti Mohamed Nor (“Haslina” or the “Defendant” or “Counterclaim Plaintiff”) seeking recovery of

On 8.11.2024 and 11.11.2024, Haslina, in her capacity as a director of Symmid, caused the transfer of the said sum of RM4,580,000.00 from Symmid’s bank account to her personal bank accounts.

Symmid claims that these transfers were unauthorised and constitute misappropriation of the company’s funds.

In response to Symmid’s claim, Haslina filed a Defence and Counterclaim dated 10.12.2024 in Enclosure 20. The Counterclaim was brought against multiple defendants, including the Counterclaim Defendants in Enclosure 70, Create Teq in Enclosure 58, and Mesriah in Enclosure 81.

The Counterclaim may be broadly divided into two distinct categories of claims: i) The Misappropriation Claim – seeking relief on behalf of Symmid in respect of alleged misappropriation of S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 6 of 43 Symmid’s funds, including orders for account, disgorgement and return of sums allegedly wrongfully dissipated from Symmid; and ii) The Beneficial Ownership Claim – seeking declaratory and injunctive relief based on the assertion that the “Elder Siblings” (that is the 1st and 2nd Counterclaim Defendants and Haslina) are beneficial owners of Symmid and certain family holding companies (the “Family Holding Companies”) pursuant to an alleged “broader family trust arrangement”.

In so far as the Counterclaim Defendant’s are concerned, their connection/relationship with the Counterclaim Plaintiff (Haslina) is as follows: i) 1st Defendant (Dato’ Norhisam Bin Mohamed Nor “Hisam”)) – elder brother of Haslina. ii) 2nd Defendant (Dato’ Norhazri Bin Mohamed Nor (“Hazri”)) – elder brother of Haslina and sides with her against the 1st Defendant and the other named party siblings. iii) 3rd Defendant (Nurhafizah Binti Mohamed Nor (“Fizah”) - younger sister of Haslina. S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 7 of 43 iv) 4th Defendant (Nurkhairun Nisa Binti Mohamed Nor (“Nisa”) - younger sister of Haslina. v) 5th Defendant (Nor Zulfaqar Bin Mohamed Nor (“Faqar”)) - younger brother of Haslina. vi) 6th Defendant (Mesriah Binti Kadiran (“Mesriah”) - mother of Haslina and former director of the Family Holding Companies (resigned in November 2024). vii) 7th Defendant (Symmid Corporation Sdn Bhd (“Symmid”)) - the same company as the Plaintiff in the main action; a technology company wholly owned by the 8th Counterclaim Defendant (“Publika”)). The current directors of Symmid are Fizah, Faqar and Haslina. viii) 8th to 13th Defendants - the “Family Holding Companies” in which some of the Counterclaim Defendants (individuals) are either directors and/or shareholders. ix) 14th Defendant (Create Teq Sdn Bhd (“Create Teq”)) - a company where Faqar (5th Defendant) is the sole director and majority shareholder.

The various Counterclaim Defendants filed applications to strike out the Counterclaim against them pursuant to Order 18 Rule 19(1) of the Rules of Court 2012. S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 8 of 43 B] ENCLOSURE 70: 1ST, 3RD TO 5TH AND 7TH TO 13TH DEFENDANTS’ STRIKING OUT APPLICATION

In relation to the Misappropriation Claim, the Counterclaim Defendants contended that the proper plaintiff rule established in Foss v. Harbottle (1843) 2 Hare 461 applied. They argued that where a wrong is done to a company resulting in loss to the company, the cause of action vests in the company itself, not in individual shareholders or third parties.

The Counterclaim Defendants submitted that Haslina is neither the registered nor beneficial owner of Symmid shares and therefore has no locus standi to bring claims for loss suffered by Symmid. They further argued that even if Haslina were a shareholder, the principle of “no reflective loss” would bar her from pursuing claims for diminution in shareholding value arising from wrongs done to the company.

The Counterclaim Defendants relied on the Federal Court decisions in Low Cheng Teik & Ors v. Low Ean Nee [2024] 5 MLJ 580 and Rising Sun Machinery Parts Sdn Bhd v. Pang Chi Chiang & Ors [2022] MLJU 375, which reaffirmed the proper plaintiff rule and the principle against reflective loss in Malaysian law. S/N 2zxpqvZ3NUKusoeIGkyS8Q

In relation to the Beneficial Ownership Claim, the Counterclaim Defendants argued that: i) The claim is plainly and obviously unsustainable as it contradicts basic principles of resulting trusts; ii) Haslina has admitted that the funding for Symmid and the Family Holding Companies came from Dawama Sdn Bhd’s (“Dawama”) arbitration award proceeds, which creates a presumption of resulting trust in favour of Dawama; iii) There is a complete absence of contemporary documentary evidence supporting the alleged “family trust arrangement”; iv) The registered shareholders have affirmed on oath that they hold their shares on trust for Dawama, contradicting Haslina’s assertions; v) The claim involves a fatal non-joinder of Dawama as a necessary party; and vi) The claim constitutes an abuse of process, having been filed only after Symmid sued Haslina for misappropriation.

In response, the Counterclaim Plaintiff initially resisted the application but subsequently made significant concessions S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 10 of 43 (see the Counterclaim Plaintiff’s Written Submissions in Enclosure 117 at paragraph 120 and 122).

The Counterclaim Plaintiff issued a Section 347 notice under the Companies Act 2016 on 28.3.2025, acknowledging her lack of locus standi and her intention to commence a proper derivative action in Symmid’s name.

By letter dated 14.4.2025, the Counterclaim Plaintiff’s solicitors informed the Counterclaim Defendants that she would be withdrawing the reliefs in the Counterclaim that relate to the disgorgement and recovery of Symmid’s funds.

Regarding the Beneficial Ownership Claim, the Counterclaim Plaintiff contended that: i) The Elder Siblings (the 1st and 2nd Counterclaim Defendants and Haslina) are the true beneficial owners of Symmid and the Family Holding Companies; ii) The Elder Siblings utilised Dawama’s arbitration award proceeds to establish these entities for their own benefit, not Dawama’s benefit; iii) Various individuals, including the 4th Counterclaim Defendant (“Nisa”), the 3rd Counterclaim Defendant (“Fizah”), and Mesriah, were appointed as nominee S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 11 of 43 shareholders and directors as part of the alleged family trust arrangement; and iv) The question of beneficial ownership involves factual disputes that can only be determined at trial.

The Counterclaim Plaintiff relied on authorities such as Lee Wai Kuen v. Ladang Sri Harapan (Sabah) Sdn Bhd [2023] 6 MLJ 692 and Takako Sakao v. Ng Pek Yuen [2009] 6 MLJ 751 to argue that the source of funds alone does not determine beneficial ownership.

I turn first to consider the Misappropriation Claim.

The Misappropriation Claim seeks relief on behalf of Symmid in respect of alleged misappropriation of Symmid’s funds, including orders for account, disgorgement and return of sums allegedly wrongfully dissipated from Symmid.

The proper plaintiff rule, established in the locus classicus Foss v. Harbottle (supra), dictates that where there is a wrong done to a company resulting in loss to the company, the cause of action is vested in the company. It is for the company, the proper plaintiff, to initiate an action to recover such loss. S/N 2zxpqvZ3NUKusoeIGkyS8Q

This principle has been consistently applied by Malaysian courts and was recently reaffirmed by the Federal Court in Low Cheng Teik (supra) at paragraphs 60, 77-79, 85, and 126. The Federal Court emphasised that where corporate loss is alleged, it is the company that must bring the claim, not individual shareholders.

Similarly, in Rising Sun (supra) at paragraphs 57-84 and 86- 89, the Federal Court reiterated that the proper plaintiff principle prevents shareholders from bringing personal claims for losses that are properly attributable to the company.

If corporate loss is caused by those in control of the company who refuse to take steps to recover the loss, the proper recourse for shareholders or directors is to seek leave of Court under Section 347 of the Companies Act 2016 to bring a derivative action on the company’s behalf.

In the present case, the Counterclaim Plaintiff is neither the registered nor beneficial owner of Symmid shares. This undisputed fact alone is fatal to her standing to bring the Misappropriation Claim.

Even if she were a shareholder, the principle of “no reflective loss” as established in Low Cheng Teik (supra) would bar her from pursuing claims for diminution in shareholding value arising from wrongs done to the company. S/N 2zxpqvZ3NUKusoeIGkyS8Q

The Federal Court in Low Cheng Teik (supra) referred to the following passage by Lord Bingham in Johnson v. Gore Wood & Co [2002] 2 AC 1, and held as follows: “[105] This principle was explained in Johnson by Lord Bingham in the following terms: Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder suing in that capacity and no other to make good a diminution in the value of the shareholder’s shareholding where that merely reflects the loss suffered by the company. A claim will not lie by a shareholder to make good a loss which would be made good if the company’s assets were replenished through action against the party responsible for the loss, even if the company, acting through its constitutional organs, has declined or failed to make good that loss.” (own emphasis added)

Most significantly, the Counterclaim Plaintiff has expressly conceded that she has no cause of action in respect of the Misappropriation Claim.

In her Written Submissions filed in Enclosure 117 at paragraph 120 and 122, she stated: S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 14 of 43 “120. In relation to the first category of claims, the Counterclaim Defendants contend that even if Haslina’s allegations are taken to be true, the losses were suffered by Symmid, not Haslina. Accordingly, they argue that it is for Symmid who must bring the claim, and that Haslina has no locus standi to pursue these claims in her personal capacity.” ……. “122. Given the circumstances set out in paragraphs 104-106, we would not be addressing or opposing the application to strike out the first category of claims as noted above." (own emphasis added)

The Counterclaim Plaintiff issued a Section 347 notice under the Companies Act 2016 on 28.3.2025, acknowledging her lack of locus standi and her intention to commence a proper derivative action in Symmid’s name.

By letter dated 14.4.2025, her solicitors informed the Counterclaim Defendants that she would be withdrawing the reliefs in the Counterclaim that relate to the disgorgement and recovery of Symmid’s funds.

These concessions and actions clearly demonstrate the Counterclaim Plaintiff’s recognition that the Misappropriation Claim as currently pleaded is legally unsustainable. S/N 2zxpqvZ3NUKusoeIGkyS8Q

Having considered the legal principles and the Counterclaim Plaintiff’s express concessions, I find that the Misappropriation Claim clearly discloses no reasonable cause of action under Order 18 Rule 19(1)(a) of the Rules of Court 2012. The Counterclaim Plaintiff lacks locus standi to pursue corporate claims in her personal capacity.

This conclusion is reinforced by the Counterclaim Plaintiff’s own express concession and her acknowledgment of the proper legal requirements for pursuing such claims through derivative action procedures.

I turn now to consider the Beneficial Ownership Claim.

The Beneficial Ownership Claim seeks declaratory and injunctive relief based on the assertion that the “Elder Siblings” (the 1st and 2nd Counterclaim Defendants and Haslina) are beneficial owners of Symmid and the Family Holding Companies pursuant to an alleged “broader family trust arrangement”.

The Counterclaim Plaintiff contends that the Elder Siblings utilised Dawama’s arbitration award proceeds to establish Symmid and the Family Holding Companies for their own benefit, not Dawama’s benefit. S/N 2zxpqvZ3NUKusoeIGkyS8Q

She argues that various individuals, including Nisa, Fizah, and Mesriah, were appointed as nominee shareholders and directors as part of this alleged family trust arrangement.

The Counterclaim Plaintiff relies on authorities such as Lee Wai Kuen (supra) and Takako Sakao (supra) to argue that the source of funds alone does not determine beneficial ownership.

She further argues that whether nominee relationships existed is a fundamentally factual and equitable issue that can only be determined through viva voce evidence at trial.

Having carefully considered these submissions, I find that the Beneficial Ownership Claim is plainly and obviously unsustainable for the following fundamental reasons: i)

By the Counterclaim Plaintiff’s own admission, the funding for Symmid and the Family Holding Companies came from Dawama’s arbitration award proceeds.

The Counterclaim Plaintiff is neither the registered nor the beneficial owner of the Symmid shares. The Counterclaim Plaintiff admits that the acquisition of the Symmid shares was funded by the 8th Counterclaim Defendant (“Publika”), with S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 17 of 43 monies advanced from Dawama from the proceeds of its arbitral award.

Therefore, it is Dawama that is the ultimate beneficial owner of the shares in Symmid, not the Counterclaim Plaintiff.

Under established resulting trust principles, as recognised in Takako Sakao (supra), where corporate funds are used to acquire assets, beneficial ownership prima facie vests in the funding entity, in this case, Dawama.

The Counterclaim Plaintiff has failed to adduce compelling evidence to rebut this presumption of resulting trust in favour of Dawama. The mere assertion that the Elder Siblings are beneficial owners, without more, cannot overcome the strong presumption arising from the use of Dawama’s funds. ii)

The Counterclaim Plaintiff’s alleged “family trust arrangement” is wholly unsupported by contemporaneous documentary evidence.

The Counterclaim Plaintiff has not produced any evidence to support her claim that the Elder Siblings funded the establishment of the Family Holding Companies or the acquisition of Symmid, a claim that is plainly untrue. In contrast, the 1st Counterclaim Defendant has adduced S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 18 of 43 extensive evidence, including contemporaneous bank statements, showing that all such payments were made by Dawama.

Furthermore, there are no corporate resolutions by Dawama authorising the incorporation of the Family Holding Companies or the acquisition of Symmid as subsidiaries or corporate vehicles.

No documents exist in which Dawama refers to these entities as its subsidiaries, nor is there any evidence of the alleged family trust structure.

The absence of such fundamental documentation is fatal to the Beneficial Ownership Claim. In Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400, the Supreme Court held that where the affidavit evidence discloses a dispute of facts, such facts must be analysed and if they are found to be inconsistent with undisputed contemporary documents or inherently improbable in themselves, the court is entitled to reject those facts and proceed upon the undisputed contemporaneous documentary evidence. iii)

The registered shareholders of the relevant companies have affirmed on oath that they hold their shares on trust for S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 19 of 43 Dawama, directly contradicting the Counterclaim Plaintiff’s assertion of beneficial ownership by the Elder Siblings.

Significantly, not a single sen from Dawama’s arbitration award proceeds was ever declared or distributed to Dawama’s registered shareholders. This fact undermines any claim that they acted on behalf of the alleged Elder Siblings.

If the Elder Siblings were truly the beneficial owners, one would expect to see distributions, dividends, or other evidence of their beneficial interest. The complete absence of such evidence is telling. iv)

The Beneficial Ownership Claim contradicts basic principles of corporate law and the doctrine of separate legal entity.

A company’s assets belong to the company, not to any shareholder, whether legal or beneficial. This fundamental principle was established in Macaura v. Northern Assurance Co Ltd & Ors [1925] AC 619 and has been consistently applied in Malaysian law.

In this regard, the Court of Appeal in Law Kam Loy & Anor v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355 affirmed that shareholders have no legal or equitable interest in the company’s assets (see also Macaura (supra); Mega Forest S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 20 of 43 Plantation Management Sdn Bhd v. Pengarah Perhutanan Negeri Selangor & Ors [2021] 4 MLJ 323).

In Mega Forest (supra) the Court of Appeal held as follows: “[83] The principle that shareholders have no legal interest in the assets of the company in which shares are held, is trite. In this regard it was established by the seminal case of Mac aw a v Northern Assurance Co Ltd [1925] AC 619; [1925] All ER 51 (HL) that shareholders have no interest in a company’s property. Lord Wrenbury’s speech at p 633 is instructive. He said that the corporator even if he holds all the shares is not the corporation ... neither he nor any creditor of the company has any property legal or equitable in the assets of the corporation’. [84] For completeness, we think that it is also relevant to refer to Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616; [2012] 5 CLJ 169, where the Court of Appeal (per Zainun Ali JCA, as she then was) enunciated, [151] It is of course trite that the cornerstone of company law is that a company is a separate legal entity from its shareholders. As such, a shareholder cannot claim any right to any asset if the company, for it has no legal or equitable interest therein (See Law Kam Ley &Anor v Boltex Sdn Bhd & Ors [2005] MLJU 225; [2005] 3 CLJ 355).” (own emphasis added) S/N 2zxpqvZ3NUKusoeIGkyS8Q

The Counterclaim Plaintiff seeks to pierce the corporate veil without establishing the exceptional circumstances that would justify such action. The mere assertion of beneficial ownership does not provide a basis for disregarding the separate legal personality of these companies. v)

Dawama itself is not a party to these proceedings, yet the relief sought would directly affect Dawama’s alleged beneficial interests in Symmid and the Family Holding Companies.

As established in London Passenger Transport Board v. Moscrop [1942] 1 All ER 97, relief affecting proprietary interests cannot be granted in the absence of interested and necessary parties. The House of Lords held as follows: “It is true that in their absence they were not strictly bound by the declaration, but the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties whether by representation, orders or otherwise before a declaration by its terms affecting their rights is made.” (own emphasis added) S/N 2zxpqvZ3NUKusoeIGkyS8Q

The principle in London Passenger Transport Board (supra) has been applied by Malaysian courts to require the joinder of parties whose interests would be directly affected by the relief sought. In this regard, the Federal Court in Lim Choon Seng v. Lim Poh Kwee [2020] MLJU 1155 reiterated the general rule that no orders can be made in respect of the non-party and held as follows: “[70] … the general rule is that the court has no jurisdiction over any person other than those brought before it and no order can be made for or against or bind a non-party: See Kheng Chwee Idan v Wong Tak Thong [1983] 2 MI J 320 where Seah FJ delivering the judgment of the former Federal Court said: “In our judgment, the court below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions [Brydges v. Bydges & Wood; Re Shephard and Coleman]. The terms “judgment” and “order” in the widest sense may be said to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the court [see para 501 of Halsbuy's Law of England (4th ed.) Vol. 26 at page 237]” (own emphasis added) S/N 2zxpqvZ3NUKusoeIGkyS8Q

The failure to join Dawama as a party is fatal to the Beneficial Ownership Claim. Any declaration regarding beneficial ownership of Symmid and the Family Holding Companies would necessarily affect Dawama’s interests, yet Dawama has not been given an opportunity to be heard.

The fact that Dawama has not been joined as a party to these proceedings is fatal to the Counterclaim Plaintiff’s case. Given that the Counterclaim Defendants have contended, and Dato’ Luqman (on behalf of Dawama’s registered shareholders) has confirmed by letter dated 28.2.2025, that Symmid and the Family Holding Companies are held on trust for Dawama, and this Court has found in favour of the Counterclaim Defendants on this issue, Dawama is a necessary party whose proprietary interests would be directly affected by any findings or relief granted by this Court. The Counterclaim Plaintiff cannot assert her claim to beneficial ownership of these companies without joining Dawama as a party to the proceedings, particularly when this Court has determined that the beneficial interest in these entities vests in Dawama.

Further and in any event, the Counterclaim Plaintiff herself admits that the funds used to incorporate and acquire Symmid and the Family Holding Companies came from the proceeds of the Arbitration Award paid to Dawama. Having made this admission, she cannot then seek to exclude Dawama from proceedings that will determine the beneficial ownership of entities funded by Dawama’s money. S/N 2zxpqvZ3NUKusoeIGkyS8Q

This Court cannot grant declarations or orders affecting Dawama’s proprietary rights in its absence. The failure to join Dawama as a necessary party undermines the entire premise of the Counterclaim Defendants’ defence and supports the Counterclaim Plaintiff’s position that the Elder Siblings, not Dawama, are the true beneficial owners of Symmid and the Family Holding Companies. vi)

The Beneficial Ownership Claim constitutes an abuse of process under Order 18 Rule 19(1)(d) of the Rules of Court 2012.

The claim seeks to circumvent the proper plaintiff rule by conflating personal beneficial ownership claims with corporate recovery claims for self-serving purposes.

Significantly, the Counterclaim was filed only after Symmid sued the Counterclaim Plaintiff for misappropriating RM4,580,000.00 of Symmid’s funds. The Counterclaim was filed on 10.12.2024, shortly after the transfers on 8.11.2024 and 11.11.2024.

The timing suggests defensive and opportunistic motivations rather than a genuine grievance. The Counterclaim appears to S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 25 of 43 be a tactical manoeuvre designed to deflect from the substantive allegations in the Main Suit.

For the reasons set out above, I find that both categories of claims in the Counterclaim fail to meet the basic legal requirements for sustainable pleadings.

The Misappropriation Claim has been expressly conceded by the Counterclaim Plaintiff as legally defective due to lack of locus standi.

The Beneficial Ownership Claim is plainly and obviously unsustainable on the admitted facts, contradicts established legal principles, and lacks credible evidentiary support.

The Beneficial Ownership Claim discloses no reasonable cause of action under Order 18 Rule 19(1)(a) of the Rules of Court 2012. It is also scandalous, frivolous and vexatious under Order 18 Rule 19(1)(b) given the absence of credible supporting evidence and its contradiction of established legal principles. The claim further constitutes an abuse of Court process under Order 18 Rule 19(1)(d) for the reasons stated above.

The applications to strike out in Enclosure 70 are allowed, being plain and obvious cases that satisfy the threshold S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 26 of 43 established in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 and subsequent authorities.

Accordingly, the Counterclaim dated 10.12.2024 in Enclosure 20 is struck out and dismissed as against the 1st, 3rd to 5th, and 7th to 13th Counterclaim Defendants. C] ENCLOSURE 58: 14TH COUNTERCLAIM DEFENDANT’S (CREATE TEQ) STRIKING OUT APPLICATION

The 14th Counterclaim Defendant (“Create Teq”), sought to strike out the Counterclaim against it on substantially the same grounds as the Counterclaim Defendants in Enclosure 70.

Create Teq contended that both the Misappropriation Claim and the Beneficial Ownership Claim were plainly and obviously unsustainable for the same reasons advanced by the Counterclaim Defendants in Enclosure 70.

In response, the Counterclaim Plaintiff made a significant concession. In paragraph 106 of her Written Submissions filed in Enclosure 117, she stated her intention to withdraw her claim against Create Teq “in its entirety”: S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 27 of 43 “Haslina has since filed an application for leave to amend her Defence and Counterclaim on 18.4.2025 to reflect for this purpose and to withdraw her claim against Create Teq in its entirety. The application has been fixed for case management before this Honourable Court on 29.5.2025.” (own emphasis added)

This total withdrawal encompasses all potential claims against Create Teq, including both the Misappropriation Claim and the Beneficial Ownership Claim.

Create Teq submitted that the late stage at which the Counterclaim Plaintiff made her concession, after Create Teq had incurred significant costs in defending an obviously unsustainable claim, warranted an appropriate costs order on an indemnity basis.

Having delivered judgment in Enclosure 70, the same legal principles and findings apply equally to the present application by Create Teq.

I adopt the findings, legal analysis, and conclusions set out in my decision on Enclosure 70, particularly: i) the application of the proper plaintiff rule established in Foss (supra); S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 28 of 43 ii) the lack of locus standi for the Misappropriation Claim; iii) the Counterclaim Plaintiff’s express concessions regarding the Misappropriation Claim; iv) the analysis of why the Beneficial Ownership Claim is plainly and obviously unsustainable; v) the legal authorities and principles governing Order 18 Rule 19 applications; and vi) the conclusion that both categories of claims fail to meet the basic legal requirements for sustainable pleadings.

In relation to Create Teq specifically, I note that the Counterclaim Plaintiff has expressly conceded her lack of locus standi for the Misappropriation Claim and has stated her intention to withdraw her claim against Create Teq in its entirety.

This total withdrawal encompasses all potential claims against Create Teq. There is therefore no claim remaining against Create Teq.

The late stage at which the Counterclaim Plaintiff made her concession is noteworthy. Create Teq had already incurred significant costs in defending the claim, filing affidavits, and S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 29 of 43 preparing submissions before the Counterclaim Plaintiff finally conceded the unsustainability of her claim.

For the same reasons as set out in my decision on Enclosure 70, the Counterclaim against Create Teq is plainly and obviously unsustainable under Order 18 Rule 19(1)(a), (b) and

of the Rules of Court 2012.

Accordingly, the Counterclaim dated 10.12.2024 in Enclosure 20 is struck out as against the 14th Counterclaim Defendant (Create Teq). D] ENCLOSURE 81: 6TH COUNTERCLAIM DEFENDANT’S (MESRIAH) STRIKING OUT APPLICATION

The 6th Counterclaim Defendant (“Mesriah”), sought to strike out the Counterclaim against her pursuant to Order 18 Rule 19(1)(a), (b), (c) and (d) of the Rules of Court 2012 and/or the inherent jurisdiction of the Court.

Mesriah’s application was grounded on several key contentions: i) The Counterclaim Plaintiff is not a proper party to bring the Counterclaim for the reliefs sought against Mesriah; S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 30 of 43 ii) Haslina has neither the requisite locus standi nor any authority from Symmid to bring a claim and seek remedy on behalf of Symmid; and iii) Haslina has not obtained any prior leave of Court to commence, prosecute and/or maintain this action in contravention of Sections 347, 348 and/or 350 of the Companies Act 2016.

On substantive grounds, Mesriah contended that: i) There is no credible evidence of any trust arrangement between the siblings or that Haslina is a beneficial owner of the shares in the Counterclaim Defendant companies; ii) There is no evidence whatsoever of nominee directorship of Mesriah as alleged by Haslina; iii) Haslina’s claim for compensation constitutes reflective loss for diminution in value of shares, which is not recoverable on a personal basis; and iv) Mesriah is no longer a director of any of the Family Holding Companies.

In response, the Counterclaim Plaintiff contended that: S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 31 of 43 i) The Elder Siblings (the 1st and 2nd Counterclaim Defendants and Haslina) are the true beneficial owners of Symmid and the Family Holding Companies; ii) Mesriah acted as a nominee director for the Elder Siblings; iii) Mesriah’s appointment as director was arranged by Dato’ Hazri (the 2nd Counterclaim Defendant) and she acted in accordance with instructions from the Elder Siblings; iv) Whether Mesriah was appointed and acted as a nominee director is a fundamentally factual and equitable issue that can only be determined through viva voce evidence at trial; and v) The threshold for striking out is high, requiring the Court to be satisfied that the claim is obviously unsustainable or bound to fail.

The Counterclaim Plaintiff further argued that she no longer pursues any personal claim in respect of the misappropriation of Symmid’s funds, indicating that these reliefs will be pursued by way of a derivative claim in Symmid’s name. S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 32 of 43

Having carefully considered the arguments of both parties and the materials before the Court, I find that there are merits in Mesriah’s application.

The grounds for the striking out application in Enclosure 70 apply equally to the present application.

The Counterclaim against Mesriah suffers from the same fundamental deficiencies as the Counterclaim against the other Counterclaim Defendants. vii) No Reasonable Cause of Action

Examining the pleadings, several critical deficiencies emerge in the Counterclaim against Mesriah.

First, there is a lack of evidence for the beneficial ownership claims. Despite extensive pleadings, Haslina has failed to produce credible evidence of any trust arrangement between the siblings or that she is a beneficial owner of the shares in the Family Holding Companies or the Create Teq. The mere assertion of beneficial ownership, without more, cannot sustain a claim against Mesriah.

Second, there is an absence of evidence of nominee directorship. There is simply no evidence whatsoever of S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 33 of 43 nominee directorship of Mesriah as alleged by Haslina. Mesriah’s mere compliance with instructions from persons who may have been involved in the companies’ affairs does not, without more, establish a nominee relationship or fiduciary duties owed to Haslina.

For clarity, the references to “evidence” in paragraphs 99 and 100 above are not to be taken as requiring final or conclusive proof at this stage. Rather, they refer to the need for at least some prima facie evidence capable of supporting the pleaded claims. In the present case, however, no such prima facie evidence, or, indeed, any evidence at all, has been adduced.

Third, Haslina has no locus standi to bring claims on behalf of Symmid. The Counterclaim Plaintiff has conceded this point, indicating that such reliefs would be pursued by way of derivative action. This fundamental deficiency renders the Counterclaim unsustainable insofar as it relates to the Misappropriation Claim.

The same reasoning in my decision on Enclosure 70 regarding the proper plaintiff rule, the principle against reflective loss, and the lack of locus standi applies with equal force to the Counterclaim against Mesriah.

Insofar as the Beneficial Ownership Claim is concerned, the same deficiencies identified in my decision on Enclosure 70 are present here: S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 34 of 43 i) The claim is contradicted by resulting trust principles, given that the funding came from Dawama’s arbitration award proceeds; ii) There is a complete absence of contemporary documentary evidence supporting the alleged “family trust arrangement” or any nominee relationship involving Mesriah; iii) The registered shareholders have affirmed on oath that they hold their shares on trust for Dawama, contradicting Haslina’s assertions; iv) The claim involves a fatal non-joinder of Dawama as a necessary party; and v) The claim contradicts the separate legal entity principle.

The Counterclaim fails to disclose a reasonable cause of action against Mesriah. viii) Reflective Loss

Many of the reliefs sought in the Counterclaim appear to constitute claims for diminution in value of shares resulting from alleged misappropriation of company funds. S/N 2zxpqvZ3NUKusoeIGkyS8Q

Such claims constitute reflective loss and are not recoverable on a personal basis where the company has an independent cause of action for the same loss.

As established in Low Cheng Teik (supra), the rule against reflective loss prevents shareholders from bringing personal claims for losses that merely reflect the company’s loss. This is clear from the following passages from the Federal Court in Low Cheng Teik (supra): “[99] While the distinction between an oppression action and a derivative action seems clear, it is often difficult to ascertain with any degree of certainty this seemingly simple difference. Often a wrong done to the company may concurrently cause harm to its shareholders. For example, the misappropriation of the company’s funds by a majority shareholder will not only harm the company but will also harm its shareholders in the form of a reduction in the value of their shares in the company. This type of loss cannot be recovered by the shareholder personally.” ……. “[126] Following from this, the depletion of the company’s assets due to a wrong done to the company does not amount to a personal injury to its shareholders. It is for the company to initiate an action to recover such loss. The shareholder is taken to have entrusted the management of the company’s affairs to the majority shareholders. If the loss to the company is caused by those in control of the company themselves who refuse to take steps to recover such loss, the proper S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 36 of 43 recourse is for the minority shareholder to seek leave from the court to bring a derivative action in order to enforce the company’s rights. (own emphasis added)

Therefore, even if there is a basis for the Counterclaim Plaintiff’s claim as pleaded, she cannot initiate it personally; it must be brought by Symmid.

The above arguments on this issue were also raised by the Counterclaim Defendants in respect of Enclosure 70, which I accept. ix) Frivolous, Vexatious and Abuse of Process

The timing and nature of the Counterclaim supports Mesriah’s contentions under Order 18 Rule 19(1)(b), (c) and (d) of the Rules of Court 2012.

The Counterclaim was filed on 10.12.2024, only after Haslina was sued by Symmid for the very funds she had transferred to her personal accounts on 8.11.2024 and 11.11.2024.

This reactive pleading strategy, combined with the lack of substantive evidence supporting the core allegations against Mesriah, suggests an attempt to deflect from the Main Action rather than pursue genuine grievances against Mesriah. S/N 2zxpqvZ3NUKusoeIGkyS8Q

The Counterclaim is therefore frivolous and vexatious and constitutes an abuse of the Court’s process.

For the reasons stated above, the Counterclaim against Mesriah fails to disclose a reasonable cause of action. The fundamental deficiencies include: i) Haslina is not a proper party to pursue claims for Symmid, as this is not a Section 347 derivative action. ii) Despite voluminous pleadings, there is no credible evidence supporting the core allegations of beneficial ownership or nominee directorship arrangements involving Mesriah; iii) Many of the claims constitute impermissible claims for reflective loss; and iv) The reactive nature of the Counterclaim, filed only after Haslina was sued by Symmid, combined with the lack of substantive supporting evidence, constitutes an abuse of the Court’s process.

The threshold test for striking out has been met. The Counterclaim against Mesriah is obviously unsustainable and bound to fail. S/N 2zxpqvZ3NUKusoeIGkyS8Q

Accordingly, the Counterclaim dated 10.12.2024 as against the Mesriah, the 6th Defendant in the Counterclaim, is struck out. E]

Both categories of claims in the Counterclaim fail to meet the basic legal requirements for sustainable pleadings.

The Misappropriation Claim has been expressly conceded by the Counterclaim Plaintiff as legally defective due to lack of locus standi. The Counterclaim Plaintiff herself acknowledges that she has no standing to bring claims on behalf of Symmid without complying with the statutory requirements for derivative actions under the Companies Act 2016.

The Beneficial Ownership Claim is plainly and obviously unsustainable on the admitted facts, contradicts established legal principles, and lacks credible evidentiary support. The claim suffers from multiple fatal deficiencies including contradiction of resulting trust principles, absence of contemporary documentary evidence, contradictory evidence from registered shareholders, fatal non-joinder of Dawama, and contradiction of the separate legal entity principle.

The non-joinder of Dawama is particularly fatal to the Counterclaim Plaintiff’s case. Dawama is the entity that provided the funding for Symmid and the Family Holding S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 39 of 43 Companies through its arbitration award proceeds. Any declaration regarding beneficial ownership of these entities would necessarily affect Dawama’s interests, yet Dawama has not been joined as a party and has not been given an opportunity to be heard. As established in London Passenger Transport Board (supra), relief affecting proprietary interests cannot be granted in the absence of interested and necessary parties.

The Counterclaim Plaintiff’s failure to join Dawama, despite admitting that Dawama’s funds were used to acquire the relevant companies, is fatal to her Beneficial Ownership Claim. Any declaration would affect Dawama’s proprietary interests, yet Dawama has not been joined or heard.

This omission is fatal given this Court’s finding, supported by the Counterclaim Defendants’ evidence and Dato’ Luqman’s (on behalf of Dawama’s registered shareholders) confirmation, that the beneficial interest in these companies vests in Dawama.

The applications to strike out in Enclosures 70, 58, and 81 satisfy the threshold established in Bandar Builder (supra) and subsequent authorities, being clear and obvious cases that warrant the exercise of the Court’s power to strike out.

For the reasons stated above, I made the following orders in the sequence set out below: S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 40 of 43 i) Enclosures 70, 58 and 81 are allowed, with costs awarded in favour of the respective applicants. ii) Enclosure 60 is also allowed, with costs. Summary judgment is accordingly entered in favour of the Plaintiff. iii) Consequently, the Counterclaim Plaintiff’s (Haslina) prohibitory and Mareva injunctions application in Enclosure 25 is dismissed with costs. iv) The Plaintiff’s Mareva injunction application in Enclosure 3 is rendered academic by reason of the Court’s decision in Enclosure 60. The Ad Interim Injunction previously granted in respect of Enclosure 3 has lapsed and ceases to be in effect. Dated this 22nd day of October, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 41 of 43 PLAINTIFF / 1ST, 3RD - 5TH & 7TH - 14TH DEFENDANTS IN THE : Alan Adrian Gomez (Kaviscyna Balakrishnan together with him) Messrs Tommy Thomas 101 Chambers, Suite 3.2, Level 3, Block B, The Five @ KPD, Jalan Dungun, Damansara Heights, 50490 Kuala Lumpur Tel: 03-26329682 Email: info@tommythomas.net DEFENDANT / PLAINTIFF IN THE : G. Vijay Kumar (Harvey Ng Yih Xiang and Bryson Chee Kok Thong together with him) Messrs Lee Hishammuddin Allen & Gledhill Level 6, Menara 1 Dutamas, Solaris Dutamas, No. 1 Jalan Dutamas 1, 50480 Kuala Lumpur Tel: 03-62085888 Email: enquiry@lh-ag.com S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 42 of 43 2ND DEFENDANT IN THE COUNTERCLAIM : Hooi Chung Wai Messrs Shan Chambers A-02-11, Galeria Hartamas, Jalan 26A/70A, Desa Sri Hartamas, 50480 Kuala Lumpur Tel: 03-23002300 Email: connect@shanchambers.com 6TH DEFENDANT IN THE COUNTERCLAIM : James Khong (Chung Christy (pupil-in-chamber) together with him) Messrs James Khong A3-2-8, No. 1, Solaris Dutamas, Jalan Dutamas 1, 50480 Kuala Lumpur Tel: 03-62079822 Email: legal@jameskhong.com LEGISLATION / RULES CITED Rules of Court 2012  Order 18 Rule 19(1)(a), (b), (c) and (d) Companies Act 2016  Section 347  Section 348  Section 350 S/N 2zxpqvZ3NUKusoeIGkyS8Q Page 43 of 43

Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400

Bandar Builder Sdn Bhd v. United Malayan Banking Corporation

Foss v. Harbottle (1843) 2 Hare 461

Johnson v. Gore Wood & Co [2002] 2 AC 1

Low Cheng Teik & Ors v. Low Ean Nee [2024] 5 MLJ 580

Lee Wai Kuen v. Ladang Sri Harapan (Sabah) Sdn Bhd [2023] 6

Law Kam Loy & Anor v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355

London Passenger Transport Board v. Moscrop [1942] 1 All ER 97

Lim Choon Seng v. Lim Poh Kwee [2020] MLJU 1155

Macaura v. Northern Assurance Co Ltd & Ors [1925] AC 619

Mega Forest Plantation Management Sdn Bhd v. Pengarah

Rising Sun Machinery Parts Sdn Bhd v. Pang Chi Chiang & Ors [2022] MLJU 375

Takako Sakao v. Ng Pek Yuen [2009] 6 MLJ 751 S/N 2zxpqvZ3NUKusoeIGkyS8Q