Uob Kay Hian Securities (M) Sdn Bhd v LIM Woi Keat (WA-22NCC-235-05/2021)

(a) the Plaintiff did not agree to increase the Defendant’s Trading Limit to the sum of approximately RM13,000,000.00 or to approximately RM23,700,000.00; and

(b) the Defendant did not seek to increase his Trading Limit to the sum of approximately RM13,000,000.00 or to approximately RM23,700,000.00. [11] Following the Glitch, the Defendant had placed the following orders via the Plaintiff’s UTRADE Platform to purchase shares: -

(a) 100, 000 NIO Limited shares (“NIO Shares”) (“100, 000 NIO Buy Order”);

(b) 1,000 Nio Shares (“1, 000 NIO Buy Order”); and

(c) 10 Naked Shares (“10 Naked Buy Order”). [12] The said Orders were matched almost instantaneously. The Plaintiff had purchased the said Orders as were placed by the Defendant, for and on behalf of the Defendant through the Trading Account and the relevant contract note had been issued to the Defendant. [13] Due to the fact that, the Defendant had traded above his Trading Limit and he did not increase the collateral held by the Plaintiff for purposes of holding the 101,000 NIO Shares, the Plaintiff had forced sold the 101,000 NIO Shares and 15,010 Naked Shares (inclusive of the 15,000 Naked Shares that were purchased on 02.03.2021) on 04.03.2021 and 05.03.2021. [14] As a result of the force sale, the Plaintiff incurred contra-losses of USD579,107.00 (not inclusive interest payable by the Defendant). This sum after taking into account the credit standing to the Defendant in the Trading Account amounted to USD485, 080. 69. [15] The transaction to purchase 15,000 Naked Shares was not settled on the due date. [16] The Defendant did not settle the contra-losses, the late payment charge and interest thereon. [17] Hence, on 18.05.2021, the Plaintiff commenced this suit against the Defendant. Plaintiff’s case [18] In gist, the Plaintiff contended that:

18.1 The Defendant’s share trading via the UTRADE Platform was subject to the applicable terms and conditions;

18.2 The Defendant took advantage of the unintentional increase of the trading limit caused by the Glitch and had placed the said Orders on the Trading Account which had thereafter resulted in losses;

18.3 The Plaintiff had purchased 101,000 NIO Shares and 10 Naked Shares for and on behalf of the Defendant through the Trading Account; and

18.4 The Defendant is liable for the trades done by him in his Trading Account and the losses incurred therefrom. [19] As for the Counterclaim, the Plaintiff asserts:

19.1 The Defendant has failed to plead all necessary elements of negligence and this would tantamount to a defective or deficient pleading;

19.2 The Plaintiff, contractually has no obligation to provide a share trading platform that is free from error, flaw, fault and/or defect and hence the Defendant’ s claim that the Plaintiff had allegedly breached the contractual terms is baseless; and

19.3 There was no evidence led that the Defendant had suffered any losses. Defendant’s Case [20] The Defendant contends that he is not liable for the contra-losses as:

20.1 He had “unintentionally” placed the said Orders; and

20.2 He tried to cancel and/or stop the said Orders by pressing the “Cancellation Button/Page” of the UTRADE System but was unable to do so; and

20.3 The Plaintiff ought to provide a share trading platform that is free from error, flaw, fault and/or defect. [21] The Defendant counterclaims against the Plaintiff for alleged loss of USD579,110.76 and expenses of RM500,000.00 on the basis that, the Plaintiff was negligent or failed to provide a share trading platform that was free from error, flaw, fault and/ or defect. The Issues [22] The real nub of the action lies on the following issues:

22.1 Main Action - Whether a customer [Defendant] of a licensed brokerage firm [Plaintiff], who took advantage of the unintentional increase of his trading limit that occurred due to a technical glitch, is liable for to the purchase orders made by him?

22.2 Counterclaim - Whether a licensed brokerage firm [Plaintiff] was under a contractual obligation to provide a share trading platform that was free from error, flaw, fault and/or defect and if so, whether there was a breach of such a contractual obligation? Analysis and Findings [23] The Plaintiff bears the legal and evidential burden to prove on a balance of probabilities of establishing a case against the Defendant throughout the trial in the Main Action whilst the Defendant bears the same burden to prove his Counterclaim. Main Action [24] Having heard the evidence, read the documents, exhibits and given much consideration to the submissions of learned counsel for the respective parties, this court finds that there is ample evidence before the court that the Defendant had executed the Account Opening Form. This Account Opening Form contained in Section 9 a declaration and acknowledgment that the Defendant:

(a) was fully aware that the full terms and conditions of the Account Opening Form could be found in the Plaintiff’s website (www.UTRADE.com. my);

(b) agreed to be bound by the same;

(c) a physical copy of the full terms and conditions of the Account Opening Form had been handed to him;

(d) he had read each and every declaration, the risk disclosure statements, the terms and conditions as well as the covenants and undertaking contained in the full terms and conditions of the Account Opening Form; and

(e) he understood the contents and its implications which have been duly explained to him in detail. [25] Arising therefrom, this Court agrees with and accepts the Plaintiff’s submission that the Defendant’s contentions have no merit in view of the following unchallenged facts:

(i) reasonable notice of the full terms and conditions of the Account Opening Form had been given before or at the time that the Defendant signed the Account Opening Form and entered into a contract with the Plaintiff;

(a) Ajwa For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395, where the Court of Appeal held that the parties are bound by the terms of the contract which they had executed and this included reference to another incorporated document where those terms can be found. Ramly Ali JCA (as he then was) held as follows: “[17] The legal position is very clear: that parties are bound by the terms of the contract which they had executed and this includes reference to another incorporated document where those terms can be found whether they take the trouble of reading them or not. There is imputed knowledge that the terms of the document incorporated are binding as if it was written into the contract itself. [18] The Indian court in the case of TN Rao v. Balabhadra AIR 1954 Mad 71, supports the above proposition. Venkatarama Aiyar J in that case ruled as follows: When a contract in writing is signed by parties, they are bound by the terms contained therein whether they take the trouble of reading them or not. This principle has been extended to cases where the contract does not actually contain the terms but a reference is made to another document or contract where those terms are to be found. The reason for holding that those terms must be taken to have been incorporated by reference in their signed agreement is that it was possible for any of them to look into that document and ascertain the terms. An examination of the authorities in which this view has been adopted shows that they are either cases in which the other contract is one between the same parties and therefore the terms including the arbitration clause might be taken to have been within the knowledge of the parties; or cases in which there is a reference to a specific document which was in existence and whose terms could easily be ascertained if the parties wanted to. It is reasonable to hold that when the parties had referred to a document which was in existence, they had knowledge or what comes to the same thing, could have had knowledge, of all the terms contained in that document and an arbitration clause contained in that document must, therefore, be held to be binding on them exactly as if it had been incorporated in extenso in the signed contract. The foundation of this reasoning is the existence of another specific document containing an arbitration clause. It is essential that the terms of an agreement must be precise and definite…” (Plaintiff’s counsel’s emphasis)

(b) Open Country Dairy Limited v Able Food Sdn Bhd [2021] 7 CLJ 716, where the issue before the Court of Appeal was whether the terms of trade were incorporated by reference. In the sale contracts therein, it was clearly stated that the terms of trade formed part of the contract and that parties agreed to comply with the terms of trade in performing their obligations under the contracts. The endorsement in each of the sales contract referred to a web-link, to wit, http://opencountry.co.nz/termsoftrade. The Court of Appeal held that, the terms of trade were incorporated by reference via the web - link as provided in each sales contract that was signed by the Respondent and hence parties were bound by the same. S Nantha Balan JCA held as follows: “[67] In our view, the terms of trade are to be found in the web-link and they formed part of the contracts for the purchase of IWMP… [69] In our view, the terms of trade which were duly incorporated by reference, will apply, regardless of whether the respondent had accessed them via the web-link provided. (See: Ajwa's case). We agree with the submission that was made on behalf of the appellant that if parties had agreed to be bound by a contract which also included a reference to another document, regardless of whether parties took the trouble to read them or not, then these documents and their terms would be binding upon the parties. [72] Of course, if there was any technical difficulty in downloading the terms of trade, then all that the respondent had to do was to ask the appellant and it would have been given the requisite document. But here, throughout the period that the contracts had been entered into for the supply of the IWMP by the appellant, the respondent never asked to be furnished with the terms of trade. It was, after all available and accessible via the web-link. The appellant was therefore entitled to assume that the respondent was aware of the contents of the terms of trade. [73] As such, the result is that the respondent was bound by the terms of trade as it was already incorporated by reference via the web-link as provided in each sales contract that was signed by the respondent.” (Plaintiff’s counsel’s emphasis) [26] Following the above 2 cases, I find that the reference to the website in Section 9 of the Account Opening Form is a sufficient incorporation of the full terms and conditions of the Account Opening Form. The Court of Appeal’s decision in Ajwa’s case was affirmed by the Federal Court in Ajwa for Food Industries Co (MIGOP), Egypt v Pacific Inter-Link Sdn Bhd [2013] 5 MLJ 625; 2013] 7 CLJ 18. [27] With utmost respect, I find that the Defendant is not entitled to after the trial, during the submission stage produce to the court a screenshot of the said website “https://mail.utrade.com.my/utrade MY_futuresFAQTrade.html” or to submit on this, when this was never produced during the trial nor put to any of the Plaintiff’ s witnesses. [28] Following the Defendant’s application, the Trading Account (a collateralised trading account) was set up for the Defendant by the Plaintiff. [29] It cannot be disputed that the terms or conditions for the UTRADE Platform (“UTRADE T&C”) were agreed by the Defendant before he could create his ID and password. In this regard, I accept PW1’s evidence that, before logging into the UTRADE Platform to carry out any share trading, there will be a statement that “by logging in to the UTRADE, you accept the Terms of use and agree to be bound by them”. [30] The Defendant in fact had traded actively using the UTRADE Platform and therefore bound by its terms and conditions of use, irregardless whether he understood the terms or read them or not. I am of the respectful view that non est factum does not bite as it was not pleaded by the Defendant. [31] The Defendant’s share trading via the UTRADE Platform to place the said Orders was subject to amongst others the material terms and conditions of the Account Opening T&C and the UTRADE T&C. [32] It is undisputed that, the Defendant had traded beyond his Trading Limit by placing the said Orders when the Glitch occurred. The Plaintiff 's Orders to purchase the 101,000 NIO Shares and 10 Naked Shares were matched, whereby, the Plaintiff had purchased the 101,000 NIO Shares and 10 Naked Shares for and on behalf of the Defendant through the Trading Account. [33] The evidence show clearly the Defendant has utilised the unintentional increase in his Trading Limit. [34] The Defendant contended in his Defence and Counterclaim that, he is not liable for the said Orders or the contra-losses:

(a) due to the fact that he encountered a “sudden big” shock (“kejutan besar secara tiba-tiba”) arising from the increase of his Trading Limit from RM13,445,003.32 to RM23,736,340.07, the Defendant suffered a “temporary confusion”; and

(b) he had then unintentionally and/ or erroneously placed the said Orders beyond his Trading Limit. [35] But in the Defendant’s submissions, it was postulated that: (a) he had “unintentionally” placed the said Orders to test the veracity of the increase of his Trading Limit ; and (b) he proceeded to place the said Orders as he was “confident” and “sure” he will be able to cancel and/or stop the said Orders at any time between the time that the said Orders were placed and the time that the said Orders were matched by pressing the “Cancellation Button/Page” of the UTRADE System. [36] This Court does not accept the Defendant’s contention that, he “unintentionally” placed the said Orders, due to the manner in which the Defendant placed the said Orders; and the operation of the UTRADE Platform:

36.1 Firstly, as explained by PW2, the placement of an order is not something that can be done in a split second and in one click. This was also admitted by the Defendant during his cross-examination;

36.2 Second, the said Orders were placed by the Defendant on 03.03.2021 at 3 different times in 3 different orders and transactions, namely:

(a) 10:50 p.m.;

(b) 10:53 p.m.; and

(c) 11:11 p.m. It was not a single transaction but 3 allegedly “unintentionally” placed orders, at three (3) different times!

36.3 Third, as is plain from the evidence, the Defendant had placed the order price of the 101,000 NIO Buy Orders HIGHER than the last traded price: No. Defendant’s Order Last Traded Price Order Price 1 100, 000 NIO Buy Order USD44. 44 USD44. 50 2 1,000 NIO Buy Order USD44. 47

36.4 There is no rocket science in the fact that a buy Order will match if the order price is higher than the last traded price. This was:

(a) confirmed by the Plaintiff’s remisier(PW2); and

(b) admitted by the Defendant during his cross-examination [NOP, Page 154, Line 15]. By placing a higher order price, it is plain that, the Defendant intended and was determined to purchase the 101,000 NIO Shares;

36.5 The order to buy 10 Naked Shares was placed by the Defendant after having been notified by the Plaintiff’s remisier about the Glitch. This shows to the Court that the Defendant intended to purchase the 10 Naked Shares too. It is important to make mention of this as it demonstrates the Defendant’s conduct, which in turn blows to smithereens his posit that he was merely testing the veracity of the increased limit; and this also impacts upon his credibility;

36.6 The evidence show he only attempted to cancel the said Orders after placing the 10 Naked Buy Order (the 3rd tranche of the said Orders) by which time, the share price of NIO Shares dropped gradually below the Defendant’s order price of USD44.50 to approximately USD42.60. [37] The reason advanced for his placing the order merely to test the veracity of the increase of his Trading Limit and hence he had no intention to purchase the shares is unacceptable as the Defendant is not entitled to pursue a defence which he has not pleaded. Even if this reason is accepted, and fact that he attempted to cancel in my respectful view nevertheless DO NOT exculpate him from liability as he took advantage of the Glitch and placed the said Orders to a value of approximately USD4,500,000 or approximately RM18,000,000 (based on the exchange rate at the material time). This sum is, as pointed out by the Plaintiff, is approximately 72 times more than his Trading Limit. The Defendant knew and in fact admitted that, on 03.03. 2021, his Trading Limit was not more than RM250,000.00. In this regard, I accept the Plaintiff’s submissions that it is implausible that the Defendant meant merely to test the veracity of the increase of his Trading Limit for these reasons:

(a) he would not have placed 3 separate Orders in 3 different transactions one after another, after realising the sudden increase of his Trading Limit; and

(b) he could have just traded slightly higher than his RM250,000.00 Trading Limit. [38] Most damning is the evidence that points to the fact that the order to buy 10 Naked Shares being the 3rd transaction, was placed by the Defendant after having been notified by the Plaintiff’s remisier (PW2) about the Glitch. The 10 Naked Buy Order was made:

(a) at 11.11 p.m;

(b) 21 minutes after the 1st tranche of the said Orders (100,000 NIO Buy Order) was matched at 10:50 p.m; and

(c) 18 minutes after the 2nd tranche of the said Orders (1,000 NIO Buy Order) was matched at 10:53 p.m. [39] Weighing the oral evidence and testing them against the contemporaneous documents, it is evident to this Court, and I find that the Defendant had in fact the intention to place the said Orders with an aim to purchase the 101,000 NIO Shares and 10 Naked Shares, AND the alleged attempt to cancel was made after the said Orders were matched and not as claimed by the Defendant that he attempted to cancel the said Orders 1 or 2 seconds after the said Orders were made as stated in his witness statement. There is no getting away from his admission during the cross-examination that, he only attempted to cancel the said Order after he purchased the 10 Naked Shares which is the 3rd tranche of the said Order. [40] In any case, I find the attempt to cancel the first 2 orders were not made with expeditious dispatch. In this context, it is noteworthy that the Defendant also admitted during cross-examination, that he only requested the Plaintiff’s remisier at 11:16 p.m.to cancel the said Orders after the orders were matched. [41] Obviously, after the Orders was matched immediately at 11:11:18 p.m., any alleged attempt by the Defendant to cancel the said Orders ( but allegedly made 1 or 2 seconds after the placement of the said Orders) will be pretty pointless. In this regard, the Defendant has in Clause 5.5 of the UTRADE Agreement, expressly acknowledged that any request to cancel an order is not guaranteed by the Plaintiff. An order can only be cancelled if the cancellation requestion is received and effected before an order is matched/executed. [42] That is not all. Having by his various conduct admitted, and accepted the said Orders and the liability related thereto, the Defendant should be estopped from disputing liability:

42.1 The Defendant had in his letter to the Plaintiff admitted that he had placed the said Orders;

42.2 During the discussion between the Plaintiff’s representatives and the Defendant on 10.03. 2021:

42.2.1 the Defendant had again admitted that he placed the said Orders after the increase of his Trading Limit;

42.2.2 the Defendant had admitted that, it was his fault to have traded above his Trading Limit;

42.2.3 the Defendant had acknowledged that, he should be responsible for the placement of the said Orders (although not fully as the UTRADE Platform was encountering the Glitch);

42.2.4 the Defendant had admitted the debt arising from the said Orders and offered to make partial payment of RM250, 000 to the Plaintiff;

42.3 the Defendant had offered to pay RM250,000.00 to temporarily hold 13, 000 NIO Shares and defer the selling of the same until 05. 03.2021 [WSPW2, Q&A 41] [CBOD 4, Page 128 (04.03. 2021at 11:06pm)];

42.4 the Defendant had in fact paid the said RM250,000.00 [CBOD 4, Page 254] leading to the Plaintiff deferring the force-selling of the said 13, 000 NIO Shares [WSPW2, Q&A 41];

42.5 the Defendant had during his WhatsApp communication with the Plaintiff’s remisier (PW2) admitted the debt and proposed to share responsibility in regard to the said Orders (paying a partial sum of RM800,000.00) [CBOD 4, Page 134 (11.03. 2021 at 12: 01 pm)];

42.6 the Defendant had during his re-examination informed the

Court that he was prepared to accept liability (up to RM800, 00)[NOP, Page 186, Line 30 – Page 187, Line 5]; and

42.7 the Defendant in the Account Opening T&C has confirmed that, he was fully aware and understood the processes, procedures and risks involved in using the internet for the electronic services and he shall not dispute or challenge the validity, enforceability or admissibility of any such record and the contents therein [CBOD 1, Page 35, Section 7, Clause 3]. [43]

(a) the Plaintiff was “negligent” and

(b) the Plaintiff has breached the contractual terms of the Account Opening T&C and the UTRADE T&C Negligence [47] At the outset, it ought to be mentioned that as a matter of pleading, to sustain a claim in negligence, the Defendant has to plead and establish the following elements:

(a) the existence of duty of care;

(b) the breach of the duty of care; and

(c) the damage suffered is causally connected with the breach of the duty of care. [48] I agree with the Plaintiff’s counsel that where the negligence complained of is one of professional negligence, there is a 4th element which must be pleaded and proved and that is the “standard of care”. [49] Although the Defendant contends that, the Plaintiff was “negligent” in his counterclaim, the 4 elements of negligence were not pleaded by the Defendant in his Counterclaim. [50] In this regard, I find that as asserted by the Plaintiff, paragraphs 28 & 29 of the Defence and Counterclaim is deficient as:

(a) the duty of care purportedly owed by the Plaintiff is not pleaded and/ or particularised;

(b) the standard of care that is to be applied against a licensed stock broking firm is not pleaded and/or particularised; and

(c) there are no particulars of breach of duty of care but “particulars of negligence” in paragraph 29(a) which by itself clearly does not set out the 4 elements of negligence alluded earlier. [51] The Defendant’s failure to plead properly is fatal and makes the claim for negligence as pleaded embarrassing and liable to be struck off. [52] In case I am wrong, I would say a few words regarding the Defendant's submissions where counsel has brought up:

(a) the duty of care to restrict the Defendant’s share trading transaction to his Trading Limit;

(b) duty of care to provide the Defendant the right and flexibility to cancel the said Orders; and

(c) duty of care to “overcome” the issue of “pending” status. [53] I find these duties introduced in the submission ought not to be considered by this Court as these duties and alleged breaches of the same were not pleaded; nor put to any of the Plaintiff’s witnesses. [54] Not only that, the Defendant did not lead any evidence to establish the existence of such duties and the purported breaches. [55] It is established law that parties are confined to their pleadings and courts are to decide on issues raised in them. The confinement of issues within the four corners of the pleadings, amongst others, help the Court to identify and adjudicate in an orderly fashion the matter before it, prevent surprises, and to inform parties in advance of the case they have to meet and thereafter deal with them accordingly. Parties are not entitled to “throw the whole kitchen sink” in their submissions for the Court to sort out. In the latest case on this subject, in Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, the Federal Court held: “[27] It is settled law that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded: Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, State Government of Perak v Muniandy [1986] 1 MLJ 490, Veronica Lee Ha Ling & Ors v Maxisegar Sdn Bhd [2011] 2 MLJ 141; [2009] 6 CLJ 232. In Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428; [1991] 1 CLJ Rep 239 it was held that where a vital issue was not raised in the pleadings, it could not be allowed to be granted and to succeed on appeal. A decision based on an issue which was not raised by the parties in their pleadings is liable to be set aside: Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152. In the Chartered Bank v Yong Chan [1974] 1 MLJ 157 the Federal Court set aside the judgment of the trial judge as it was decided on an issue not raised on the pleadings. In that case the trial judge erred in concluding that the pleadings included a claim for breach of contract as well as a claim for libel”. [56] Specifically, the Federal Court in the case of Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 had held that: “[60] It is a cardinal rule that parties are bound by their pleadings and are not allowed to adduce facts and submissions on matters which they had not pleaded. Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment (see: State Government of Perak v Muniandy [1986] 1 MLJ 490; Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313; and Blay v Pollard and Morris [1930] 1 KB 628).” [57] On causation, I am also inclined to accept the Plaintiff’s argument that the Glitch did not cause the Orders for the Nio and Naked shares to be bought. The Defendant took advantage of the Glitch and caused such shares to be bought. There lies the difference. I find that the Defendant’s counterclaim for negligence cannot succeed. Breach of Contractual terms [58] As for the Defendant’s contention that the Plaintiff has breached the contractual terms of the Account Opening T&C and the UTRADE T&C, particularly Clause 5.5 of the UTRADE T&C by reason of the Plaintiff’s purported negligence and/or neglect and/or failure to provide a trading platform that is free from error, flaw, fault and/or defect, I find the very wording of Clause 5.5 of the UTRADE T&C when construed clearly stipulates that the Defendant acknowledges any request to cancel an order is not guaranteed by the Plaintiff and an order can only be cancelled before it is executed or matched. A proper construction of Clause 5.5 makes plain that Defendant’s reliance of Clause 5.5 of the UTRADE T&C is misconceived. The said clause does not by any stretch of the imagination impose any obligation on the Plaintiff to provide any trading platform that is free from error, flaw, fault and/ or defect. [59] The Defendant also raised in submissions that Clauses 4.1, 4.3 and 4.4 of the UTRADE T&C are not applicable as it was not fair to exclude the Plaintiff’s liabilities given that the Glitch was due to the Plaintiff and not the Defendant. [60] I am however of the view that the salient terms of the UTRADE T&C and the Account Opening T&C i.e., Clauses 3.1, 3.2, 3.3, 4. 1, 4.2, 4.3,

4.4, 10.1, 15.2, and 21.1 construed properly, in my respectful view implode the Defendant’s claim that the Plaintiff had allegedly breached any contractual term of the UTRADE T&C and the Account Opening T&C. [61] As for the exclusion in Clauses 4. 3 and 4. 4, following the Federal Court case of CIMB Bank Bhd v. Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1, a mere limitation and/or restrictions added into an exclusion clause is insufficient to invoke Section 29 Contracts Act 1950. These clauses read together in my respectful view, do not run afoul of s. 29 Contracts Act 1950; neither do they oust the jurisdiction of the court. I also do not find Clearpath Marketing Sdn Bhd v. Malayan Banking Berhad [2019] 1 LNS 111 cited by the Defendant, of much assistance to the Defendant in any way, for in that case, the Court of Appeal found that the exclusion clause contained in a separate contract was not incorporated into the Remittance Contract, such exclusion clause was therefore not applicable. Clause 4.1 is not an exclusion of liability clause as asserted by the Defendant. [62] In any case, even if I am wrong that there was breach on the Plaintiff’s part, the Defendant had not proven the counterclaim for loss of USD579,110.76. Damages must be strictly proven. [63] As for the counterclaim for RM500,000.00 (comprising payments on 3.3.2021 and 4.3.2021) the contemporaneous documentary evidence and also the Plaintiff’s remisier (PW2)’s evidence in fact show:

(a) the payment of RM 250,000 on 3. 3. 2021 was made to settle another transaction i.e., Defendant’s purchases of JAKS and Lambo shares; and

(b) the payment of RM250,000 on 4.3.2021 was an offer made by the Defendant to enable him to hold 13,000 NIO Shares and defer the selling of the same until 5.3.2021. [64] In the result, I find the Defendant’s counterclaim based on alleged negligence and alleged breach of contractual terms, is bereft of merit and is dismissed with costs. Costs on a solicitors-client basis [65] O 59 r 16(2), (3), (4) Rules of Court 2012 provide as follows: “16 (2) Subject to the other provisions of these Rules, the amount of costs which any party are entitled to recover is the amount allowed after determination of costs on the standard basis where –

(a) an order is made that the costs of one party to proceedings be paid by another party to those proceedings;

(b) an order is made for the payment of costs out of any fund; or

(c) no order for costs is required, unless it appears to the Court to be appropriate to order costs to be determined on the indemnity basis.

68.1 the Defendant pays the Plaintiff the sum of RM2,137,265.52;

68.2 the Defendant pays the Plaintiff the sum of RM34,840.36, being the interest at the rate of 8.5% per annum imposed on the sum of RM2,137,265.52 as at the date of the filing of this action;

68.3 the Defendant pays the Plaintiff the continuing interest at the rate of 8.5% per annum on the sum of RM2,137,265.52 accruing/calculated on a daily basis from the date of the filing of this action until the date of full settlement;

68.4 the Defendant’s counterclaim be dismissed;

68.5 the Defendant pays the Plaintiff costs of RM108,940.22 subject to allocator; and

68.6 the Defendant pays the Plaintiff interest at the rate of 5% per annum on the costs of RM108,940.22 from date hereof until settlement. Dated 6th February 2023 - signed - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Gopi Seshadari (together with him, Chong Hau Yean) Messrs Gopi Seshadari For the Defendant : Navinder Singh (together with him, Kenneth Tan Chik Wai and Noor Amirah) Messrs Low & Partners For the Supervising : Yeoh Jie Hu (together with him, Carisse Solicitor Tham) CASES CITED: Ajwa For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395 Open Country Dairy Limited v Able Food Sdn Bhd [2021] 7 CLJ 716 Ajwa for Food Industries Co (MIGOP), Egypt v Pacific Inter-Link Sdn Bhd [2013] 5 MLJ 625; 2013] 7 CLJ 18 PB Securities Sdn Bhd v Justin Ong Kian Kuok [2007] 1 MLJ 153 Nik Mohd Zain Haji Omar-v-Hwang-Dbs Securities Berhad & Anor [2010] 1 LNS 334 Maybank Securities Sdn Bhd v Abdul Rashid Abdul Rahman [2010] 1 LNS 1003 Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292 Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 CIMB Bank Bhd v. Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1 Clearpath Marketing Sdn Bhd v. Malayan Banking Berhad [2019] 1 LNS 111 STATUTE/LEGISLATION REFERRED: Section 29 Contracts Act 1950 Order 59 r 16, Rules of Court 2012