Tanjung Offshore Berhad v 1. ) 1. Harzani Bin Azmi (WA-22NCVC-294-05/2016)

HARZANI BIN AZMI (No. K/P : 670120-08-5225)

TAN WEE KOH (No. K/P : 680429-10-5297)

AL MAURID RESOURCES SDN BHD (Sebelum ini dikenali sebagai Tristar Properties Sdn. Bhd) (No. Syarikat: 968106-K) ...DEFENDAN-DEFENDAN JUDGMENT [1] This case concerns a claim by the Plaintiff that it had overpaid for the purchase of shares in a company due to breaches of duty and conspiracy on the part of two of its directors, the 1st and 2nd Defendants. 2 The background [2] The Plaintiff is a locally incorporated company and was described as being in the business of an investment holding company. The 1st and 2nd Defendants were directors of the Plaintiff at the material time. The 3rd Defendant is also a locally incorporated company and is alleged to be the vehicle through which monies from the alleged breaches of duty and/or conspiracy were used for the private placement of some shares. [3] On the 6th of January 2009, the Plaintiff’s former Board of Directors agreed upon and purchased 51% of the issued share capital of a company known as Gas Generators (Malaysia) Sdn Bhd (“Gastec”). Gastec, is a locally incorporated company whose principal activity is in the design and manufacturing of custom built process plants and packages for the mining, petro-chemical, refining and offshore oil and gas market. This 51% of Gastec’s shares amounted to 2,443,633 ordinary shares and the consideration for their purchase was a sum of RM5.1 million. The vendors of the shares purchased were Appolusa Sdn Bhd (“Appolusa”), Choong Khuat Hock, Alamnusa Sdn Bhd, Andresen Nils Gabriel and Mayban Venture Capital Company Sdn Bhd. Therefore, by this acquisition, the Plaintiff became the majority shareholder of Gastec. [4] The remaining 49% of Gastec’s shares, which amounted to 2,347,804 ordinary shares, were held by Appolusa. Thus Gastec had only two shareholders, Appolusa and the Plaintiff, respectively holding 49% and 3 51% of the total issued share capital of Gastec. In 2009, at the time the Plaintiff acquired the 51% of Gastec’s shares, the 2nd Defendant and one Francis Khor Kean Hooi (“Francis”) were the directors and shareholders of Appolusa. Francis was the 2nd Defendant’s uncle, on the latter’s maternal side. [5] On the 6th of January 2009, the Plaintiff and Appolusa, being the only two shareholders in Gastec, entered into a Shareholders’ Agreement. Under this agreement, and in the recital, the parties recorded their intention to jointly develop the business of Gastec as a going concern, comprising the manufacturing and trading in all types of machinery, equipment and generators used for welding, cutting, cooking and other commercial applications. They also made clear in the recital that the agreement was to record their commitment and to regulate their rights as shareholders of Gastec. This agreement also provided for a call option and a put option and a method for determining a fair value for the shares based on their Price/Earnings ratio, should either option be exercised and the parties were not able to agree on a fair value for the shares. [6] On 23rd April 2012, the 2nd Defendant was appointed onto the Board of Directors of the Plaintiff. Apart from being on the Board, the 2nd Defendant was also appointed the Plaintiff’s Head of Engineering and was tasked with heading the Engineering Equipment Division of the Plaintiff. In addition, the 2nd Defendant was also appointed the Chief Executive Officer and a director of Gastec. 4 [7] The 1st Defendant was also appointed a director of the Plaintiff on 23rd April 2012. He was then appointed the Plaintiff’s Managing Director on 7th September 2012. [8] On 7th January 2013, the 2nd Defendant resigned as a director of Appolusa and upon his resignation, he transferred his shares in Appolusa to his uncle, Francis. [9] About three years after acquiring 51% of the shares in Gastec, on 21st of March 2013, the Plaintiff’s Board of Directors met at a Special Board of Directors’ Meeting to discuss inter alia the group’s business plan for the year ending 2013. Budgeted was an investment sum of some RM60 million which included the acquisition of the remaining 49% of Gastec’s shares held by Appolusa. After its deliberations, the Board accepted the proposed business plan. The person who was invited to brief the Board on this occasion was one Joachim Tan Seow Hoe (“Joachim”), the Plaintiff’s Head of Corporate Finance. Also present at this Board meeting was the 2nd Defendant, in his capacity as director. The 1st Defendant was, however, not present. There were five other directors present, one of whom, George William Warran Jr, participated via teleconference. The meeting was chaired by one Datuk Seri Syed Alin bin Tan Sri Syed Abbas Alhabshee. 5 [10] Joachim, as Head of Corporate Finance, was given the task of valuing the Gastec shares to be acquired. Joachim has a degree in Management Studies in respect of which he majored in accounting. He is also a Chartered Accountant and had worked in PricewaterhouseCoopers from 1997 to 2000. Thereafter he worked in AM Investment Bank until 2005, when he was appointed Head of the Corporate Finance Division of the Plaintiff until his resignation sometime in March 2015. [11] On 21st of October 2013, another Special Board of Directors’ Meeting of the Plaintiff was held. Five directors participated in this meeting. This meeting was chaired by the 1st Defendant. The 2nd Defendant was also present. At this meeting the proposed acquisition of the remaining 49% of Gastec’s shares was discussed. The Board of Directors was briefed by the management, namely Joachim. Among the information provided to the Board were the following: “1. Gastec was existingly held 51% by the Company and 49% by Appolusa Sdn Bhd (“Appolusa”).

The value of Gastec based on the projected Profit After Tax of RM8 million for the financial year ending 31 December 2013, at 7.5 times Price/Earnings, was an enterprise value of RM60 million.

The total consideration of 100% equity interest of Gastec including RM10 million cash in Gastec was RM70 million.

The purchase consideration of the 49% equity interest in Gastec was RM34.3 million.

The purchase price would be settled for cash via internally generated funds. 6

Based on the last audited accounts of the Company, the consolidated Net Asset Value was RM156.85 million, therefore shareholders’ approval was not required.

The Proposed Acquisition was not a related party transaction under the provision of the Listing Requirement.

The rationale of the Proposed Acquisition were as follows: a) To enable the Company to consolidate the future earnings potential of Gastec on a 100% basis. Based on a stronger financial platform of the Company, Gastec would continue to penetrate new niche markets within the oil and gas industry. b) As part of the Company’s continuous efforts to seek growth and brighter prospects in the near future, the Company could capitalize on the technological advantages and market leadership of Gastec and capturing new markets in the Asia Pacific Region. c) To enable the Company to immediately enhance its engineering equipment division by providing more value added services whilst enhancing profitability margins.” The Board noted these considerations and agreed that the proposed acquisition of Gastec’s shares would enhance the overall revenue and profitability of the Plaintiff and would maximize shareholders’ value in the long run. Significantly, the 2nd Defendant informed the Board that in view of his former directorship in Appolusa, he chose to abstain from voting on the proposed acquisition of Gastec’s shares. It was also recorded in the minutes of this board meeting that after a brief deliberation and having reviewed the draft announcement the Board, with the exception of the 2nd Defendant who abstained from voting, resolved as follows: 7 “THAT the Company do hereby acquire 2,347,804 ordinary shares of RM1.00 each, representing 49% of the issued and paid-up capital of Gas Generators (Malaysia) Sdn. Bhd. (“Gastec”) for a total cash consideration of RM34,300,000.00 AND THAT following the said acquisition, Gastec will be a wholly owned subsidiary of the Company. THAT Encik Harzani bin Azmi, the Managing Director of the Company be and is hereby authorised to execute the Share Sales Agreement (“SSA”) and/or any other relevant documents for and on behalf of the Company and to do all such acts and things to give effect to the SSA with full powers to assent to any condition, modification, revaluation, variation and/or amendment (if any) may be imposed by the relevant authorities and/or do all such acts and things as the Directors may deem fit and expedient in the best interest of the Company in connection with the said acquisition. THAT authority be and is hereby given for the use of the Common Seal of the Company in accordance with the Company’s Articles of Association onto all relevant documents required to be duly executed under Seal in connection therewith. AND THAT the Secretary be and is hereby authorised to release the announcement to Bursa Malaysia Securities Berhad on 21 October 2013.” [12] Consequent upon the Board of Directors’ resolution of 21st October 2013, a Share Sale Agreement was entered into between the Plaintiff and Appolusa. Pursuant to this Share Sale Agreement, which was also dated 21st October 2013, the Plaintiff bought the remaining 49% of the share capital in Gastec from Appolusa for a total consideration of RM34,300,000. 8 [13] The 1st Defendant resigned as the Managing Director of the Plaintiff on 19th June 2014 but remained as a group advisor until 23rd March 2015. [14] In November 2014, news of investigations by the Malaysian Anti-Corruption Commission (“MACC”) into the then past and present directors of the Plaintiff was rife. The complainant was unknown to the Board. However, what appeared to be known was that the investigations related to, inter alia, the acquisition of the 49% Gastec shares. In the face of this news about the investigations, the Plaintiff’s Board of Directors issued what they called a “Declaration by the Directors”. In this declaration, the Board set out the news about the investigations ending with a declaration that there was no malpractice(s) by the Plaintiff, its directors and officers, as all decisions and actions taken had been done in the interest of the Plaintiff and its shareholders. The declaration also stated that the investigations had tainted the Plaintiff’s good name and that it was in the midst of a major corporate exercise with a third party. In 2015, the 2nd Defendant resigned as a director of the Plaintiff and he resigned as Chief Executive Officer and director of Gastec, in April 2015. Valuation of the 49% Gastec Shares [15] Pivotal to the Plaintiff’s case was the valuation of the 49% Gastec shares it had purchased from Appolusa. It was the Plaintiff’s contention that in breach of their duties as directors of the Plaintiff, the 1st 9 and the 2nd Defendant were responsible for an over valuation of the 49% Gastec shares purchased by the Plaintiff. The Plaintiff also contended that the 2nd Defendant, as a director of Gastec at the material time, knew that the Gastec shares to be purchased by the Plaintiff was overvalued and had failed to inform the Plaintiff’s Board of this. It was alleged that, at the very least, the 1st and 2nd Defendants were negligent and had breached their duty of care owed to the Plaintiff in failing to ascertain or ensure a true and accurate valuation of the 49% Gastec shares purchased by the Plaintiff. A cocktail of breaches were mounted against the 1st and 2nd Defendants – breach of fiduciary duties, breach of contract, breach of trust and breach of duty of care – all of which turn on what was said to be a wrongful valuation of the 49% Gastec shares and that, both the 1st and 2nd Defendants knew that the shares were overvalued. [16] As indicated above, the valuation of the 49% Gastec shares were carried out “in-house”, as it were, by the Plaintiff’s Corporate Finance Division headed by Joachim. Joachim himself was not sued and it was not alleged that he was in league with either the 1st and/or 2nd Defendants although, it would seem, that he must have been, if the Plaintiffs’ allegations were proven to be true. Joachim testified as DW2. He testified that the value of Gastec based on the projected Profit After Tax of RM8,000,000.00 for the financial year ending 31.12.2013 at 7.5 times Price/Earnings (“PE”) was at an enterprise value of RM60,000,000.00. The total consideration of 100% equity interest of Gastec, including 10 RM10,000,000.00 cash in Gastec was RM70,000,000.00, and thus the purchase consideration of the 49% Gastec shares was RM34,300,000.00. [17] Joachim’s approach was criticized in that the Profit After Tax of RM8,000,000.00 for the year ending 31st December 2013 he had relied on was merely a projection, as the acquisition was only towards the end of October 2013. According to Joachim however, as at August 2013, Gastec was already earning around RM6,000,000.00 to RM7,000,000.00. That was why he was confident that Gastec would obtain a profit of RM8,000,000.00 for the whole of 2013. Joachim testified that his projection was proven correct because at the end of 2013, Gastec’s profit was around RM8,400,000.00. He further testified that at the time of the acquisition, the minimum PE rate for a public listed company was 15 times and within 5 to 8 for an unlisted company. At that point in time, Gastec was already earmarked for listing. Thus he adopted a PE ratio of 7.5, which was half the rate applicable for a public listed company and within the range of an unlisted company. [18] Joachim also testified that for the purposes of valuing the 49% Gastec shares, he had information from the Management Accounts of Gastec as at August 2013, Gastec’s register of contracts as at August 2013 and the PE rate of companies listed on Bursa Malaysia. As to why he chose the PE ratio as a basis for his valuation, Joachim testified that that was the basis set out in the Shareholders’ Agreement between the Plaintiff and Appolusa of 6th January 2009. However, it is also pertinent to point 11 out that the purchase of the 49% Gastec shares was not pursuant to the Plaintiff exercising the call option under the Shareholders’ Agreement and thus the valuation provision was technically not applicable. In addition, even under the Shareholders’ Agreement, the valuation methodology provided under Schedule 2 thereof would only be triggered if the parties could not agree to a fair value for the shares. However, it was the basis of valuation under the Shareholders’ Agreement that Joachim adopted. In addition, Joachim also testified that the PE ratio basis was appropriate as Gastec was an engineering company and its value and/or profitability was based on the number of contracts it had in hand. If, on the other hand, Gastec was a property company with landed assets or tangible assets, then a Net Asset valuation basis would be more appropriate. [19] Equally important is the issue why an internal auditor was appointed to review the acquisition of the 49% Gastec shares, rather than an independent external valuer. To this, Joachim’s response was that Gastec was known to the Plaintiff. After all, the Plaintiff was the majority owner of the shares in Gastec and had been so for three years prior to the decision to purchase the remainder of Gastec’s shares from Appolusa. The Plaintiff’s directors were on the Board of Gastec and, under cross-examination, Joachim testified that the Plaintiff also had management control of Gastec, as well as centralised financial reporting. In addition, Joachim pointed out that Gastec’s earnings, revenues and profits had more than doubled since the Plaintiff’s acquisition of its shares in 2009. He was confident of Gastec’s potential for growth and he had Gastec’s internal 12 documents mentioned above to enable him to provide an accurate assessment of Gastec’s performance and potential. [20] The Plaintiff contended that Joachim’s valuation was in fact tailored to fit information that was provided by the 1st Defendant. From the testimony of Joachim, both given in his evidence-in-chief and under cross-examination, it was not apparent that Joachim’s valuation of Gastec was not honest or independent or that the value he arrived at was predetermined by the 1st Defendant. When Joachim was conducting the valuation of the Gastec shares, the 1st Defendant was negotiating with Francis. There was, however, an indicative value of Gastec that the parties were looking at and that was in the region of RM60 million. That, in itself, is no evidence that Joachim had not conducted a proper valuation of Gestec and had merely given a value predetermined and within a range provided by the 1st Defendant. It should not be overlooked that the negotiations were between two parties who were, de facto, partners qua shareholders in Gastec. Both parties knew the company well and would have had a good idea of Gastec’s worth.F Under cross-examination, Joachim also testified that the idea to acquire the 49% Gastec shares was not the 1st Defendant’s but was in fact first mooted by a former shareholder. This was before 2013. [21] One of the witnesses called by the Plaintiff was Mohd Safari (PW2). PW2 was an officer with the MACC. PW2 was the officer who was involved in the investigations into inter alia the purchase of the 49% Gastec 13 shares. PW2 testified that when he interviewed Joachim, Joachim said that he had had a discussion with the 1st Defendant. PW2’s testimony on this issue was as follows: “10 PW2 11 12 13 14 15 16 17 18 19 Ya, betul. Seminggu sebelum mesyuarat ahli lembaga pengarah Tanjung Offshore diadakan, Harzani telah memanggil Joachim bagi berbincang mengenai kertas cadangan pengambilalihan 49% saham Gastec oleh Tanjung Offshore Berhad. Dan dalam perbincangan tersebut, Harzani telah mengarahkan Joachim untuk memaksudkan nilai 100% saham Gastec pada kadar keuntungan selepas cukai iaitu RM8 juta, dan didarabkan dengan price earning RM7.5, dan ditambah dengan tunai dalam Gastec sebanyak RM10 juta, yang mana 49% daripada RM77 juta itu adalah RM34.3 juta.” [Nota Keterangan, Bicara pada 7.8.2018, Mukasurat 17 , baris 10-19] This statement is not without difficulties. However, the figures referred to by PW2 were used by Joachim and they were all objective and verifiable values. If those values were used and they led to a conclusion as to the value of Gastec’s shares upon a given basis, then the only issue that can arise is whether Gastec’s share value arrived at was fair and reasonable. The ultimate criterion and determining factor would be whether Joachim’s valuation was not fair or reasonable and can thus be said to be wrong or probably dictated by the 1st Defendant. [22] PW2 also testified as follows: “29 PW2 30 Francis Khor telah menyatakan bahawa beliau setuju untuk menjual 49% saham Gastec yang dipegang oleh Appolusa pada 14 31 32 33 “1 2 3 4 5 6 “5 PW2 6 7 8 9 10 11 12 NJG 13 14 PW2 15 16 17 NJG 18 19 20 PW2 21 22 23 24 harga sekitar RM20 hingga RM21 juta. Apabila ditanya mengenai wang selebihnya daripada wang yang diterima, iaitu RM34.3 juta, Francis menyatakan bahawa beliau tidak begitu” [Nota Keterangan, Bicara pada 7.8.2018, Mukasurat 17, baris 29-33] peduli tentang lebihan tersebut kerana secara dasarnya, beliau dapat menjual saham Gastec pada harga yang dihendaki, iaitu sekitar RM20 hingga RM21 juta. Selepas itu, Francis menyatakan bahawa wang RM13.3 juta yang disalurkan kepada Matthews Hun Lachimanan untuk membeli terbitan saham baru Bio Osmo adalah untuk Harzani.” [Nota Keterangan, Bicara pada 7.8.2018, Mukasurat 18 , baris 1-6] Saya telah menyiasat pengaliran wang keluar daripada Appolusa selepas menerima bayaran daripada Tanjung. Dan hasil analisa kewangan yang diperolehi mendapati sejumlah RM13.3 juta telah dipindakan ke dalam akaun firma guaman Matthews Hun Lachimanan bagi tujuan pembelian terbitan saham baru Bio Osmo. Berapa jumlahnya, tuan? Berapa yang telah disalurkan? RM13.3 juta daripada akaun Appolusa, dan RM6.7 juta daripada akaun Harzani Azmi. Selepas itu, boleh tuan terangkan dari akaun Matthews Hun Lachimanan itu apa yang berlaku? Selepas wang digabungkan menjadi RM20 juta berada dalam akaun Matthews Hun Lachimanan, pihak Matthews Hun telah transfer wang tersebut ke dalam akaun Kenanga Investment Bank Berhad. Kenanga Investment Bank Berhad merupakan advisor dalam menjalankan urusan dengan Bursa Malaysia bagi 15 However, PW2’s testimony was not corroborated in any way. He maintained that these statements made were recorded by him in his investigation papers. He then testified that these investigation papers were with the Attorney General Chambers but he was ordered not to disclose them in the Civil Courts at this point in time. Thus, PW2’s testimony was his say so and while he maintains that there were records made by him of what he had testified to, they were not produced. [23] Subsequently, and pursuant to its investigations, the MACC charged the 1st Defendant in relation to the acquisition of the 49% Gastec shares. However PW2, under cross-examination, conceded that the 1st Defendant was acquitted of this charge by the Sessions Court without his defence being called. In the absence of the grounds of judgment, it may not be concluded that this outcome was necessarily because the evidence given against the 1st Defendant in the Sessions Court was untrue. Suffice to say that the outcome of the prosecution of the 1st Defendant was not supportive of the allegations against him in this case. 25 26 27 28 tujuan corporate exercise yang dibuat oleh Bio Osmo Berhad. Iaitu berkaitan dengan private placement yang didaftarkan atas nama Tristar Properties pada mulanya, kemudian bertukar kepada Al Maurid Resources Sdn Bhd.” [Nota Keterangan, Bicara pada 7.8.2018, Mukasurat 19 , baris 5-28] 16 [24] PW2 also testified that the prosecution was in the process of appealing against the Sessions Court’s acquittal of the 1st Defendant. However, there was some dubiety over this issue. There were observations made by counsel from the bar that the appeal brought against the 1st Defendant’s acquittal had been discontinued. Again, PW2’s testimony was not corroborated in anyway. [25] On 8th January 2015, at another Special Board of Directors meeting of the Plaintiff, news of complaints against the 1st Defendant by a minority shareholder was discussed. Complaints by this minority shareholder were made against the 1st Defendant to the Securities Commission (“SC”) and the Malaysian Anti-Corruption Commission (“MACC”). These complaints were brought up in relation to the re-appointment of the 1st Defendant as the Managing Director of the Plaintiff and his suitability for re-appointment in view of the complaints. As a result the Board, at this meeting, resolved to set up what it called an “Independent Committee” (“IC”) comprising the independent directors of the Plaintiff namely (a) George Warren, (b) Dato Abd Wahab bin Haji Ibrahim and (c) Shahrizal Hisham bin Abdul Halim. George Warren was to be the chairman of this IC and its duties and responsibilities included to review the acquisition of the 49% shares in Gastec and to engage professionals to perform independent valuations of the transactions identified. Meanwhile, the re-appointment of the 1st Defendant was deferred, pending the review by the IC. 17 [26] The minutes of the meeting of the IC of 15th January 2015 was adduced in evidence. In the minutes, the Chairman George Warren reiterated the scope of its investigations which included a review of the Plaintiff’s acquisition of the 49% Gastec shares. A re-valuation of the shares was sought and two audit firms responded. They were BDO and Ernst & Young. The latter, however, subsequently informed that they did not, at that time, have the requisite man power to complete the task within the time required. As such, BDO was selected to undertake the valuation of the 49% Gastec shares. [27] In its final report to the Board of Directors of the Plaintiff dated 27th January 2015, the IC’s findings on the acquisition of the 49% Gastec shares were as follows: “2.2.3. The Gastec acquisition 2.2.3.1. No improprieties or discrepancies were found with regard to the acquisition of Gastec.

2.2.3.2. The pricing and acquisition of the remaining 49 percent of Gastec is fair and reasonable, as supported by external auditor BDO which was engaged by the IC to perform an independent valuation. Gastec’s historical enterprise valuation at the time of acquisition was between RM66.42 million to RM71.24 million before taking cash-in-hand into consideration.” [28] BDO in its letter of 26th January 2015 to the Plaintiff, which was put to the attention of the Chairman of the IC, George Warren, is of importance. It sets out inter alia the basis and results of its valuation of the 18 49% Gastec shares. It makes clear that in valuing the shares, BDO had relied on the (i) Audited financial statements of Gastec for the financial years ended December 2010 to 2012, (ii) unaudited consolidated management accounts of Gastec for the 6 months financial period ended 30th June 2013, (iii) verbal representations and discussions with the Plaintiff’s management, (iv) various documents and information available up to 31st August 2013 and (v) the letter of representation from management dated 23rd January 2015 confirming, inter alia, the accuracy, completeness and reliability of the information provide to them. In its conclusion, BDO stated as follows: “5.6 Conclusion Using the PBT multiples approach to estimate the indicative valuation as outlined in paragraph 5.3, the range of indicative values of Gastec as at 30 June 2013 based on the bases and assumptions as detailed in the paragraph 5.4 and based on the results shown in paragraph 5.5 of this letter is RM66.42 million to RM71.24 million.” BDO’s conclusion ended with a statement that, “The final price of Gastec will reflect the specific circumstances of the buyer and seller, their perceptions of business and market factors at the point of execution”. BDO’s report, as appears to be normal for such valuations, was based on what it expressed as assumptions coupled with a list of limitations. Based on BDO’s conclusion as to the value of Gastec’s shares, the purchase price paid by the Plaintiff for the 49% Gastec shares was within the range given by BDO and thus not excessive. 19 [29] Muhammad Sabri Bin Ab Ghani, who was a former director of the Plaintiff and a former director and Chief Executive Officer of one of the Plaintiff’s subsidiary companies, Tanjung Offshore Services Sdn Bhd testified as PW1. PW1 did not have any personal knowledge of the allegations relating to the alleged over valuation of the 49% Gastec shares. His testimony was mainly based on the records of the Plaintiff and the Board meetings that he attended. However, PW1 did testify that after the IC’s recommendations a report from Ferrier Hodgson was commissioned by the Plaintiff’s new Board of Directors. Ferrier Hodgson is yet another accounting firm. The report commissioned was to assess the conduct of the IC’s investigations. [30] Ferrier Hodgson’s final report provided its key findings as at 15th May 2015. In regard to the allegation that the amount the Plaintiff had paid for the 49% Gastec shares was excessive, Ferrier Hodgson commented on what was essentially BDO’s valuation of Gastec’s shares. In this regard what Ferrier Hodgson had to say was: “Based on the above, the accounting firm’s indicative valuation of the Gastec Group ranged from RM66.4 million to 71.2 million. The purchase consideration of RM34.3 million for Gastec’s 49% stake appears to be within the range of values set out in the accounting firm’s valuation. Insofar as the price earnings multiples of Gastec is concerned, the Price-Earnings multiple based on Gastec’s 2013 results is 8.3 times.” 20 In regard to the IC’s findings, Ferrier Hodgson stated as follows: “IC Findings In regard to the Gastec acquisition, the IC in its report dated 27 January 2015 found no improprieties or discrepancies and that the pricing of the remaining 49% of Gastec was reasonable. FHMH [meaning Ferrier Hodson] has examined and reviewed all relevant documents, Board minutes, valuations and held discussions with key parties involved in the transactions and accordingly, support the findings of the IC in this regard.” While Ferrier Hodgson did not carry out a separate valuation of Gastec’s shares, it stated that it had “…examined and reviewed all relevant documents, Board minutes and valuations…”. It also stated in its report in relation to the Gastec acquisition that “It appears that there are no irregularities in regard to the acquisition sum of the remaining 49% of Gastec by TOB.” Suffice it to say that Ferrier Hodgson did not report the finding of any flaws or errors in BDO’s valuation of the Gastec shares. [31] PW1 also made reference to an opinion contained in a report prepared by KPMG, another accounting firm. Choo Soke Yee, an Executive Director in KPMG Corporate Advisory Sdn Bhd and who prepared the KPMG report, was subpoenaed to testify. She testified as PW3. PW3 specialises in valuation work and has had some 17 years of experience in that field. In fact, prior to her joining KPMG, PW3 worked in BDO Capital Consultants Sdn Bhd. 21 [32] KPMG’s report was headed “Expert Report pertaining to fairness opinion on the valuation of shares in Gas Generators (Malaysia) Sdn Bhd, a subsidiary company of Tanjung Offshore Berhad” and it was dated 28th July 2016. This report states that KPMG was engaged by the MACC to review BDO’s valuation of the Gastec shares. This report prepared by PW3 was stated to be a draft report. Apparently this draft report was sent by PW3 to the MACC for the latter’s comment but she never received any from the MACC. However, as far as PW3 was concerned, the report and the opinion therein were as good as final. [33] Again, as is normally the case, KPMG’s report was subject to various limitations. What was called the “Market Approach” was adopted as the primary valuation method. The documents that were provided by the MACC to KPMG for this report, and upon which the report was based, were (i) Audit financial statements of Gastec from FY2009 to FY2013; (ii) Management accounts of Gastec for the six month financial period ended;

(iii) Tax computation of Gastec and its wholly owned subsidiary Universal Gas Generators (M) Sdn Bhd for YA2009 and YA2013; (iv) Minutes of the Plaintiff’s Special Board of Directors meeting of 21st October; (v) Breakdown of revenue recognition for Project Farab and Havayar and (vi) Valuation report dated 26th January 2015 prepared by BDO on the valuation of a 100% equity interest of Gastec. [34] According to PW3, there are three common methods of valuation used. They are the income approach, the cost method based on 22 the net assets of a company and the market approach. She explained that the market approach used is basically a method of valuation whereby comparable companies and transactions are benchmarked and used as yardsticks to arrive at a value. In benchmarking, there is the price to earnings multiple or PE multiple approach. This approach may be based on a price to earning basis which is the ratio of the price of the shares to their profit after tax, the price to profit before tax or the price to earnings before interest, tax depreciation and amortization (“EBITDA”). There is also an enterprise value approach which is essentially a valuation of the business of the company as a whole. In her opinion, PW3 concluded that as at 30th June 2013, 100% of the equity interest in Gastec was worth in the region of RM37 million to RM42 million. That would make the 49% Gastec shares having a value of between RM18 million and RM21 million. [35] Of BDO’s valuation, PW3 states that BDO had used a market approach as well but had used a benchmark based on the profit of Gastec before tax. On the other hand, PW3 had used the benchmarks based on profit before tax, profit after tax and EBITDA. PW3 also tested the reasonableness of her valuation by testing it against other approaches. She however, did not assess the reasonableness of her valuation based on the performance of Gastec after 30th June 2013. PW3 also set out the differences between her valuation and that of BDO. Although BDO had also taken into consideration comparable companies and given a discount for lack of marketability in its valuation of Gastec’s shares, PW3 observed that no details of the companies said to be comparable or the discount 23 given for lack of marketability were disclosed. As such, she was not able to evaluate those parameters used. [36] PW3 also said that she took into account the fact that Gastec had a pioneer status and was tax exempt. That status was acquired for five years from 2008 to 2013. That meant that from 2013 onward, Gastec would have had to pay taxes unless its pioneer status was extended. However, it seems to me that while this seems an important factor for valuing Gastec’s shares, it would only be fair to mention the fact that BDO had based the PE ratio it adopted on profit before tax and not profit after tax. It also has to be borne in mind that BDO did not have the opportunity to comment on PW3’s valuation of Gastec’s shares and her report was only made available at the trial, prompting learned counsel for the Defendants to seek time to consider the report before they could cross examine PW3. PW3 however, was quite candid. In her examination in chief, she stated as follows: “NJG Okay. And based on the sale of the shares at 34.3 million, 49%, in your opinion do you think that is reasonable? You mean the actual consideration for the shares? NJG Yes. Prima facie on the face value, it appears that it is over priced. Prima facie because I don’t have discussion with the company, during the time of the transaction.” To a question from the bench, PW3 answered as follows: “YA What difference would that make. 24 I am doing a valuation without having discussion with management. In other words, I do not have management view of their profitability going forward. And what could be the potential outlook of the company. And that would be a limitation of the valuation as stated in my valuation report? YA So that’s a qualification to your valuation report? That is a limitation which I have stated.” Under cross-examination and along the same lines, PW3’s testimony was as follows: “RJS Why is it a limitation? Why do you consider it a limitation? When we do not have a discussion with the management in finalizing a valuation work, sometimes we are lacking of the knowledge of the business plan of the subject matter going forward. RJS Could discussions with management also help you with regards to finding comparable companies when you decide the multiplier? Yes.” The value to a 51% shareholder gaining 100% control versus the bargaining power that a 49% shareholder had was also canvassed. However, there was in existence the Shareholders’ Agreement and that contained covenants for the two shareholders’ co-existence including a put and a call option that could be activated. PW3 also agreed that there was an element of subjectivity in a valuation exercise and valuations among professional valuers can vary. PW3 said she had used several valuation approaches to cross check the results she obtained and they were consistent. To this, learned counsel for the 3rd Defendant pointed out that 25 it must be equally true to say that the approach used by BDO, which was one of the several employed by PW3, could not be wrong since they all produced similar results. This argument, logical though it may seem, would have to depend on the values used in the various approaches and those values might differ. Ultimately the variance between BDO’s valuation and that of PW3’s valuation was that BDO’s valuation produced a value that was some 40% to 44% higher. To a question posed by the Court, PW3’s answer was as follows: “YA But can you say that BDO’s valuation was clearly wrong? Having regard to the limitations in your own valuation? No, I would not say that because I do not see the comparable companies that they have used, and they also did not mention in their report what are the conversations that they had with the management. And there was also no projections being mentioned in BDO’s report.” [37] Having heard the testimony of PW3 and taking into account the valuation by Joachim and BDO and the observations of Ferrier Hodgson, it cannot be said that on a balance of probabilities, the price paid by the Plaintiff for the 49% Gastec shares was not a fair or reasonable price. This is very largely due to the variable values that were used in the valuation of Gastec’s shares and each had its own arguments or bases for and against. Each contention proffered had its own plausible counter contention such that in the end, having regard to the facts and circumstances of this case, there was no obvious or reliable basis to hold that any of the valuations provided was probably wrong. 26 [38] There is however, to my mind, one factor which impaired PW3’s valuation in a material respect and that was, internal information about the business that the management had and in respect of which PW3 did not have the advantage of assessing. The Plaintiff had management control of Gastec for some three years and they knew the business, its plans, its contracts and management was in a better position to evaluate those issues. Alleged breaches of duty [39] It cannot be disputed that the 1st and 2nd Defendants, as directors, owed the Plaintiff a fiduciary duty. That directors owe a fiduciary duty to the company on whose board they sit, is a well-established legal principle (see Solid Investments Ltd v Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73, FC; The Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik Syed Mohamed & Anor [2008] 3 CLJ 221, FC; Rega (Hastings) Ltd v Gulliver and others [1942] 1 All ER 378). The Federal Court in Solid Investments also cited a passage from the judgment of Millet LJ (as he then was) in Bristol and West Building Society v Mothew [1998] 1 Ch 1 at p 18, which included an explanation of the nature of a fiduciary’s obligations: “[31] In Bristol and West Building Society v. Mothew [1998] 1 Ch 1 at p. 18, Millet LJ made the following observation on the question of who is a fiduciary: 27 A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr. Finn pointed out in his classic work Fiduciary Obligations (1977), p. 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary.” There are also statutory duties imposed on directors. For the purposes of this case, the Plaintiff referred to section 132 of the then applicable Companies Act of 1965, which states as follows: “132. As to the duty and liability of officers

A director of a company shall at all times exercise his powers for a proper purpose and in good faith in the best interest of the company. In addition, directors of companies also owe a common law duty of care to the company on whose board they sit (see The State of South Australia & Anor v Timothy Marcus Clark [1996] SASC 6137 and also AWA Ltd v Daniels (1992) 7 ACSR 759) though the exact nature and extent of the duty may vary depending on the circumstances including whether the director concerned was an executive director or a non-executive director. 28 [40] Was it established that the 1st and/or 2nd Defendant prevailed upon or caused Joachim to produce a valuation of the 49% Gastec shares that was other than a fair and reasonable value? Did either or both the 1st and 2nd Defendant know that those shares could have been acquired at a price that was lower than what was paid for them by the Plaintiff? Did Joachim fail to provide, or knowingly provided, a valuation of the 49% Gastec shares which resulted in a purchase price for them that was not fair or reasonable? Having regard to the evidence led and the circumstances of the case as a whole, I am of the view that the answers to these questions are in the negative. [41] In the end, the only suggestion that Joachim did not carry out a proper and objective valuation and that he did what the 1st Defendant told him came from PW2 and even then, it was not unequivocal. PW2’s testimony as to what Francis told him did not go as far as to say that the 1st Defendant knew what Francis was willing to sell the 49% Gastec shares for and that the 1st Defendant had told Joachim to put a value above the price Francis wanted. Furthermore, the fact that the money received from the sale was used in part towards payment for the private placement for Bio Osmo shares was, in itself, not evidence that Appolusa or Francis was not entitled to the monies or that the Plaintiff was misled into overpaying for the 49% Gastec shares. In addition, PW2’s testimony that in respect of a private placement for 100,000,000 shares in a company called Bio Osmo Berhad (“Bio Osmo”), RM13.3 million was from Appolusa and RM6.7 million was from the 1st Defendant’s account, was not evidence that the 29 Plaintiff had overpaid for the 49% Gastec shares or that the monies were from any such overpayment. The fact that Francis and the 1st Defendant combined their monies for the private placement for Bio Osmo’s shares was not denied. Ultimately, what was not established by PW2’s testimony was that the monies for the private placement came from an over payment by the Plaintiff for the 49% Gastec shares or that Joachim had in fact over overvalued those shares on the 1st Defendant’s instructions or prompting. [42] Having regard to the foregoing, I am of the view that it was not proven that Joachim’s valuation of the 49% Gastec shares, which was confirmed by BDO and the subject of a report by Ferrier Hodgson, was not fair or reasonable and that consequently the purchase price paid by the Plaintiff was not fair or reasonable. I am also of the view that the allegations of breaches of duty on the part of the 1st and 2nd Defendant in not ensuring that the 49% Gastec shares were subject to a proper or independent valuation were not made out. The alleged conspiracy [43] The Plaintiff had also mounted a claim of conspiracy against the Defendants and this was pleaded in the following manner in paragraph 35 of the Statement of Claim: “35. By reason of the matters aforesaid, the Defendants (or any two or more together) wrongfully conspired and combined together to injure 30 and/or defraud TOB [the Plaintiff] by unlawful means pleaded above, namely by:-

overvaluing the 49% total issued and paid up capital of Gastec at the Share Sale Amount by a margin of approximately RM20,000,000 in order to subsequently obtain arrangement with Francis to utilize the sum of RM20,000,000 for the purpose of satisfying payment for Al Maurid’s private placement of 100,000,000 shares in Bio Osmo; and

in pursuing a private arrangement with Francis, upon TOB’s payment of the Share Sale Amount to Appolusa, to procure a fictitious and unlawful transaction with Francis to be provided with the sum of approximately RM20,000,000 from the said Share Sale Amount to be advanced to HBA [the 1st Defendant] and/or Al Maurid, or alternatively directly to Bio Osmo for the benefit of HBA and/or Al Maurid, for the purpose of Al Maurid’s private placement of RM10,000,000 shares in Bio Osmo.” [44] It was an agreed fact that the 3rd Defendant, Al Maurid Resources Sdn Bhd, is a locally incorporated company and the 1st Defendant was one of its directors and shareholders. The 3rd Defendant was previously known as Tristar Properties Sdn Bhd. As indicated above, it was also an agreed fact that the 3rd Defendant had made an application for a private placement for 100,000,000 shares in Bio Osmo with funds of RM20,000,000 from the 1st Defendant and Francis, by way of directors’ advances sometime in November 2013. [45] Given the nature and specificity of the alleged conspiracy, I am of the view that, on a balance of probability, the allegation was not made out. Firstly, for the reasons given above, I had come to the conclusion that 31 it was not proven that Joachim’s valuation of the 49% Gastec shares was not honest or independent and it was also not proven that the value arrived at by Joachim was not fair or reasonable. This finding undermines the conspiracy as pleaded. Secondly, KPMG’s report opined that the value of the 49% Gastec shares at the material time was between RM18 million to RM21 million. The alleged conspiracy specifically charges that the overvaluation of the 49% Gastec shares was approximately RM20 million and that excess amount of RM20 million was then utilised for the purpose of satisfying the payment for the 3rd Defendant’s private placement for the 100,000,000 shares in Bio Osmo. Even if accepted, the difference between KPMG’s lowest estimate of RM18 million and the consideration paid by the Plaintiff of RM34.4 million would produce an amount of only RM16.3 million. Therefore, based on the alleged conspiracy pleaded, there would be no RM20 million overpaid by the Plaintiff to fund the 3rd Defendant’s private placement. As a range was given by KPMG in its report, if the mean is taken, this would place the value of the 49% Gastec shares at RM19.5 million and the difference between the price paid by the Plaintiff would produce an amount of only RM14.9 million. This figure is even further away from the alleged RM20 million over payment. [46] It also follows that if it is not established that Joachim overvalued the 49% Gastec shares, either of his own accord or at the behest of the 1st Defendant, the Plaintiff would not have suffered any damage paying the price it did for those shares. In this regard it is settled law that damage is an essential ingredient for a cause of action in 32 conspiracy. It is not a tort actionable per se. In SCK Group Bhd & Anor v. Sunny Liew Siew Pang & Anor [2010] 9 CLJ 389, the Court of Appeal through the judgment of Low Hop Bing JCA held that: “[14] The tort of conspiracy is not constituted by the conspiratorial agreement alone. For conspiracy to take place, there must also be an unlawful object, or, if not in itself unlawful, it must be brought about by unlawful means: See Davies v. Thomas [1920] 2 Ch 189 per Warrington LJ, and Seah Siang Mong v. Ong Ban Chai & Another Case [1998] 1 CLJ Supp 295 HC per Ghazali J (now FCJ). There must be a co-existence of an agreement with an overt act causing damage to the plaintiffs. Hence, this tort is complete only if the agreement is carried into effect, thereby causing damage to the plaintiffs. In order to succeed in a claim based on the tort of conspiracy, the plaintiffs must establish:

an agreement between two or more persons;

for the purpose of injuring the plaintiff; and

acts done in the execution of that agreement resulted in damage to the plaintiff: Marrinan v. Vibart [1962] 1 All ER 869, 871 per Salmon J; and Halsbury's Laws of England (4th edn.) Vol. 45 p. 271, as applied by Ghazali J (now FCJ) in Seah Siang Mong, supra” (Emphasis added) In a similar vein, the Court of Appeal in Cubic Electronic Sdn Bhd (In Liquidation) v MKC Corporate & Business Advisory Sdn Bhd and Another Appeal [2016] 3 CLJ 676 stated through the judgment of Mohd Zawawi Salleh JCA (as his lordship then was): “[10] To appreciate the submissions advanced by learned counsel for the defendants, we think it is relevant to deal with the law of conspiracy 33 which is part of what are known as the "economic torts". There are four elements to a conspiracy claim:

a combination or agreement between two or more individuals;

(ii) an intent to injure;

(iii) pursuant to which combination or agreement, and with that intention, certain acts were carried out; and

(iv) resulting loss and damage to the claimant. (See Khoo Teng Chye v. Cekal Berjasa Sdn Bhd & Anor, Civil Appeal No: P-02-542-03-2015 (CA) [2015] 6 CLJ 449 (CA)).” (Emphasis added) [47] As for where the 3rd Defendant secured the money for its private placement, the evidence was that advances were provided by the 1st Defendant and Francis. In fact PW2’s testimony set out above somewhat corroborates this. Shahrizal Hisham bin Abdul Halim, a director of the 3rd Defendant (DW4), testified that the 1st Defendant advanced a sum of RM6,670,000.00 to the 3rd Defendant and Francis advanced a further sum of RM13,330,000.00. DW4 testified that these loans to the 3rd Defendant were in effect investments by the 1st Defendant and Francis in Bio Osmo shares made through the 3rd Defendant. Reference was also made to evidence of these loans in the audit confirmations given by the 3rd Defendants to its auditors Messrs Morison AAC on 13th July 2016 and 1st September 2016. There was also a statement of the amount owing by the 3rd Defendant to the 1st Defendant, signed by the 1st Defendant and confirmed correct by the 3rd Defendant. This statement sets out the total amount advanced to the 3rd Defendant and the amount still owing as at 34 31st March 2016, which was RM4,692,554.20, and this sum corresponds with the amount in the said audit confirmation of 13th July 2016. These documents were originally objected to but, during the course of the trial, they were admitted into evidence, by consent of the parties, on the basis that their authenticity was not disputed but their contents were not admitted. This evidence contradicts PW2’s testimony that the RM13.3 million was to purchase Bio Osmo shares for the 1st Defendant. [48] The Plaintiff contended that the 1st Defendant’s testimony was not corroborated by other witnesses and his version leading up to the purchase of the Bio Osmo shares was not consistent. Ultimately what the Plaintiff appeared to be doing was, in effect, to shift the legal burden of proof to the 1st Defendant. The legal burden of proof imposed on a plaintiff never shifts. It is what is conveniently referred to as the “evidential burden” of proof that may shift. If sufficient evidence is led that may prove an allegation, it is then said that the evidential burden shifts to the other party to adduce, or point to sufficient evidence, to oppose it (see Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 at p 738 et seq, FC). [49] Learned counsel for the Plaintiff however contended that the totality of the evidence and testimonies presented, including the contradictions and the documents produced and those not produced, clearly demonstrated that it was more likely than not that the 1st Defendant 35 did utilise the overpayment for the 49% Gastec shares for the Bio Osmo shares. Among the cases relied upon by the Plaintiff was Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445 where the Court of Appeal held that, “In a civil case, one party’s evidence is the other’s as well. So a plaintiff may rely on the defendant’s evidence to prove his or her case (see the observations of Hashim Yeop A Sani SCJ in M Mahadevan v. S Lourdenadin [1988] 2 MLJ 371)”. The authorities also cited in support of this proposition were Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2017] 1 LNS 721, CA and U-Re Auto Sdn Bhd v York Pacific Holdings Ltd [2004] 3 CLJ 172, CA. However, the Plaintiff’s contention presupposes that there was, in fact, an overpayment for the 49% Gastec shares and this, as I have stated above, was not proven by the Plaintiff. [50] The Plaintiff had also urged the Court to draw inferences that would lead to the conclusion it wanted. These inferences were to be based on the 1st Defendant’s oral testimony and their inconsistencies. The 1st Defendant was indeed loose with his language when he testified. His testimony appeared at times to contradict the facts which the parties themselves had agreed upon through counsel. In the course of his testimony, the 1st Defendant would then vacillate to a position consistent with what was agreed. Under cross-examination the 1st Defendant stated that he purchased the Bio Osmo shares in question in his own name. Further into his cross-examination, the 1st Defendant testified that the Bio Osmo shares were purchased through the 3rd Defendant. On the other 36 hand, many a time, the 1st Defendant and DW4 were confounded by questions posed by learned counsel for the Plaintiff, leading to some confusion in their answers. There were also other alleged inconsistencies which, upon closer examination, did not, in my view, turn out to be so. These alleged inconsistencies to my mind did not, and could not by themselves, lead to the conclusion that RM20 million came from a conspiracy that had caused an overvaluation of the 49% Gastec shares in respect of which the Plaintiff paid RM34,300,000.00. The conspiracy pleaded was one that was undertaken with unlawful means. No such unlawful means was proven and as stated above, and for the reasons given, it was also not established that the Plaintiff suffered any loss in the purchase of the 49% Gastec shares. Having regard to all the evidence led and the testimonies given, I do not think the Plaintiff has discharged its legal burden of proving the alleged conspiracy, as pleaded. As a consequence, it also follows that the issue of constructive trust raised by the Plaintiff does not arise. Counterclaim [51] Apart from defending this action, the 2nd Defendant also mounted a counterclaim. His counterclaim was premised on what was described as a “Letter of Indemnification” issued to him by the Plaintiff dated 23rd March 2015. This Letter of Indemnification, which does not appear to be supported by any resolution either by the Board of Directors of the shareholders or the Plaintiff, states as follows: 37 “RE: INDEMNIFICATION We irrevocably and unconditionally confirm and acknowledge that we do not have any claim whatsoever (whether arising under law, equity, contract or otherwise) against you whether in connection with any act or omission in the performance and execution of your duties as an officer of the Company or otherwise and that in any event, we expressly waive all such claims, if any, as against you and/or accordingly release you from any and all such claims and/or liabilities. In connection therewith, we also agree with and undertake to you that we shall not bring any action or proceeding and/or make any claim against you in respect of the matters aforesaid.” The 2nd Defendant maintained that this action against him was a breach of this Letter of Indemnification. [52] Rather than an indemnity, this letter issued by the Plaintiff was more in the nature of a statement that the Plaintiff had no claim against the 2nd Defendant for any wrongdoing against the Plaintiff and if it had, the Plaintiff waives any such claim and the 2nd Defendant is released from liability. As such, contrary to the Plaintiff’s contention, section 140(1) of the Companies Act 1965 in regard to provisions indemnifying directors or officers is not applicable. [53] The Letter of Indemnification was also not a contract as such. There was no consideration provided for this so called “indemnity”. Even in her written submissions, learned counsel for the 2nd Defendant contended 38 that this Letter of Indemnification is not a contract. Thus, there can be no breach of contract. [54] As stated above the Letter of Indemnification, in my view, was merely a statement that the Plaintiff had no claims for any wrong doing and even if it did, they were waived. However, as no wrong doing has been found against the 2nd Defendant in this action, the issue of any “breach” is therefore of no moment. In addition, not being a contract, no valid counterclaim for its breach can be maintained. Therefore the 2nd Defendant’s counterclaim is not made out. Conclusion [55] For the reasons given above the Plaintiff’s claims against the Defendants in this action are dismissed and the 2nd Defendant’s counterclaim against the Plaintiff is also dismissed. Dated this 5th Day of November 2018 -sgd- (DARRYL GOON SIEW CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur (Civil NCvC 2) 39 CASES CITED Bristol and West Building Society v Mothew [1998] 1 Ch 1 at p 18 Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia Tenaga Nasional [2015] 5 MLJ 52 Mohamed Ismail bin Mohamed Shariff v Zain Azahari bin Zainal Abidin & Ors [2013] 2 MLJ 605 Buckingham v Francis & others [1986] BCLC 353 Lim Fang I and others v Wakil-wakil diri kepada Shafiee @ Jaafar bin Arshad, yang mati and Anor [2009] MLJU 561 Munusamy v PP [1987] 1 MLJ 492 Md. Zainuddin B. Md. Darus & Anor v Public Prosecutor [1994] 2 CLJ 246 Rayner Segismond Balagut & Anor v Saaid bin Abdullah & Ors [2012] 7 MLJ 55 SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2010] 9 CLJ 389 Renault SA v Inokom Corporation Sdn Bhd & Anor and other Applications [2010] 5 CLJ 32 Cubic Electronic Sdn. Bhd. (In Liquidation) v MKC Corporate & Business Advisory Sdn. Bhd. & Another Appeal [2016] 3 CLJ 676; [2016] 3 MLJ 797 Solid Investment Ltd Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73 The Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik Syed Mohamed & Anor [2008] 3 CLJ 221 Regal (Hastings) Ltd v Gulliver and others [1942] 1 All ER 378 Yukilon Manufacturing Sdn Bhd “[No. 4]” & Anor v Dato’ Wong Gek Meng & Ors [1998] MLJU 60 Pathma d/o Naganather & Anor v Nivedite d/o Naganather (No. 1) [2002] 6 MLJ 361 Re Montagu’s Settlement Trusts Duke of Manchester v National Westminster Bank Ltd and others (1975) [1992] 4 All ER 308 CIMB Bank Bhd v Maybank Trustees Bhd & other Appeals [2014] 3 CLJ 1 40 Bank of Credit and Commerce International (Overseas Ltd) and another v Akindele [2000] 4 All ER 221 Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Chua Lay Kim (P) & Ors [2015] MLJU 2111 Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2013] 5 CLJ 949 Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy Pennusamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals [2015] 1 MLJ 773 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 The State of South Australia & Anor v Timothy Marcus Clark [1996] SASC 6137 Juahir Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998] 3 MLJ 457 Stone & Rolls Ltd (in liquidation) v Moore Stephens (a firm) [2009] UKHL 39 Zulkiply Taib & Anor v Prabakar Bala Krishna & Ors and Other Appeals [2015] 2 CLJ 766 Datuk Seri Khalid Abu Bakar & Ors v N Indra P Nallathamby & Another Appeal [2014] 9 CLJ 15 Borneo Helicopters Sdn Bhd v Sabahair Aviation Sdn Bhd & Another Case [2012] 5 CLJ 684 Richard Tan Han Sheng v R&A Telecommunication Sdn Bhd & Anor [2018] 1 LNS 876 Akar Juang Sdn Bhd v Koperasi Pembangunan Hartanah Putrajaya & Anor [2016] 1 LNS 1827 Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors [1995] 3 CLJ 639 Sakthivel Punithavathi v Public Prosecutor [2007] SGHC 54 Planassure Pac formerly known as Patrick Lee Pac v Gaelic Inns Pte Ltd [2007] SGCA 41 Re Barings PLC and others (No. 5) v Baker and others [2000] 1 BCLC 523 41 Dato’ Seri Timor Shah Rafiq v Nautilus Tug & Towage Sdn Bhd [2018] 8 MLJ 394 British Midlands Tool Ltd v Midland International Tooling Limited [2003] EWHC 466 Tenaga Nasional Berhad v. Bukit Lenang Development Sdn Bhd [2017] 1 LNS 721 Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445 U-Re Auto Sdn Bhd v York Pacific Holdings Ltd [2004] 3 CLJ 172 Kondisi Utama Sdn Bhd v Baltic Agencies Pte Ltd & Anor Appeal [2018] 1 LNS 1321 Amalgamated Investment & Property Co Ltd (In liquidation) v Texas Commerce Bank [1982] QB 84 Pinsia Development Sdn Bhd & Ors v Hj Abdul Hadi Ahmad & Ors [2005] 1 CLJ 416 TMF Trustees Malaysia Bhd v Offshore Works Sdn Bhd & Ors [2016] 9 CLJ 137 PB Securities Sdn Bhd v Automways Holding Bhd [2000] 4 MLJ 417 Tengku Dato’ Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal [2018] 2 CLJ 641 Nagateck Sdn Bhd v Choong Lou Chan [2015] MLJU 770 Tan Joo Chai & Anor v Eco Water Technologies (M) Sdn Bhd [2015] 3 MLJ 380 Selvaduray v Chinniah [1939] 8 MLJ (F.S.M.R) 253 Johara Bi Binte Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139 Pharmmalaysia Bhd v Dinesh Kumar Jashbhail Nagajibha Patel & Ors [2004] 7 CLJ 465 Chong Su Kong & Ors v Sia Hiong Yee & Ors [2011] 2 CLJ 801 MPI Polyester Industries Sdn Bhd v Eng Koo Kiang & Ors [2011] 8 CLJ 236 Anwar Yeo Abdullah v Malaysian Assurance Alliance Berhad [2013] 1 LNS 1200 Item Industrial Engineering Sdn Bhd & Ors v Bank Utama (Malaysia) Bhd [2015] 1 CLJ 933 42 Xin Xin Engineering Sdn Bhd & Anor v Fukuyama Automation Sdn Bhd & Ors [2016] 9 MLJ 217 Muniandy a/l Nadasan & Ors v Dato’ Prem Krishna Sahgal & Ors [2016] 11 MLJ 38 Black Point Design Sdn Bhd v Ng Lee Peng & Ors [2017] 2 AMR 829 380 Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 Seema Jaya Sdn Bhd & Anor v CIMB Bank Berhad [2015] MLJU 1969 El Ajou v Dollar Land Holdings plc and another [1994] 2 ALL ER 685 Rajabali Jumabhoy and others v Ameerali R Jumabhoy and others [1998] SGCA 35 Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele 3 W.L.R. 1423 LNE Network Systems (Asia) Sdn Bhd v Loi Chew Ping & Ors [2015] MLJU 1884 Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 LEGISLATION AND LEGAL TEXT CITED Section 101(1), 102, 103, 106,114 of the Evidence Act, 1950 Section 132, 140(1), 215 of the Companies Act 1965 Section 213, 214, 215, 288 of the Companies Act 2016 COUNSEL FOR THE PLAINTIFF: Nimisha Jayagobi (Wong & Partners Level 21, The Gardens South Tower Mid Valley City, Lingkaran Syed Putra 59200 Kuala Lumpur Tel : 03-2298 7888 Faks: 03-2282 2669) 43 COUNSEL FOR THE 1st DEFENDANT: Reza Rahim (Geethan Ram Suite No. 5, L15-05, PJX Tower No. 16A, Persiaran Barat 46050 Petaling Jaya Selangor Darul Ehsan Tel : 03 7931 5777 Faks : 03 7932 1777) COUNSELS FOR THE 2nd DEFENDANT: Natalia (Sharanya Visualingam with her) (Zul Rafique & Partners D3-3-8, Solaris Dutamas No. 1 Jalan Dutamas 1 50480 Kuala Lumpur Tel : 03 6209 8228 Faks : 03 6209 8381) COUNSEL FOR THE 3rd DEFENDANT: Villie Nethi (Ranjit Singh & Yeoh D3-U5-12, Solaris Dutamas No. 1 Jalan Dutamas 1 50480 Kuala Lumpur Tel : 03 6205 4128 Faks : 03 6205 4109)