Wong Tzy Jian v Wong Keh Yen (WA-22NCC-357-06/2025)

WONG KEH YEN (NRIC No.: 740829-10-5618)

REAL HARVEST PTE LTD (Singapore Company No.: 200915790G)

KEH YEN, NG & PARTNERS (sued as a firm) ...DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] Before the court is the Plaintiff's application in Enclosure 3 dated 6.6.2025 for an interim injunction restraining the Defendants from paying out or dissipating funds received from Leadmont Development Sdn Bhd, pending the full and final disposal of this action. [2] The application is brought pursuant to Order 29 of the Rules of Court 2012 and Sections 50, 51 and 53 of the Specific Relief Act 1950. The Plaintiff seeks to preserve the status quo in respect of substantial sums of money which he claims are beneficially his through his beneficial ownership of all shares in the 2nd Defendant, Real Harvest Pte Ltd. [3] The central dispute revolves around whether the 1st Defendant, Wong Keh Yen, holds the shares in the 2nd Defendant as nominee and trustee for the Plaintiff, her brother, or whether she is the true owner of the company as she now contends. At stake are considerable sums. As at 8.7.2025, the sum of RM11,236,783.57 had already been paid to the 3rd Defendant as stakeholder, with a balance of RM4,025,679.11 in uncashed cheques awaiting payment. [4] Having considered all the materials before the court, including the affidavits filed by the parties, the written submissions, and having heard oral arguments, I am satisfied that the Plaintiff's application must be allowed for the reasons set out below. BACKGROUND FACTS The Parties [5] The Plaintiff is Wong Tzy Jian. The 1st Defendant is Wong Keh Yen. They are siblings and Malaysian citizens. [6] The 1st Defendant is an advocate and solicitor of the High Court of Malaya. She is a partner in Messrs Keh Yen, Ng & Partners, which is the 3rd Defendant. [7] The 2nd Defendant is Real Harvest Pte Ltd, a company incorporated in Singapore on 27.8.2009. The company has one ordinary share. Since incorporation, the 1st Defendant has been the sole registered shareholder and sole director appearing on the company's register. [8] The Plaintiff and 1st Defendant have a sibling named Wong Keh Shin (“Keh Shin”). Their parents have both passed away. The Plaintiff and Keh Shin were joint executors of the estate of their late father, Wong Hon Chong (though the Plaintiff later became the sole executor). The 1st Defendant is the sole executrix of the estate of their late mother, Lai Kui Yin. Corporate Entities and Loan Arrangements [9] Grace Field Group Limited (“Grace Field”) was a company incorporated in the British Virgin Islands. The 1st Defendant was registered as its sole director and shareholder. On 27.9.2010, a document titled “Declaration of Trust” was executed. This document relates to Grace Field and states that the 1st Defendant holds a Merrill Lynch account as trustee for the Plaintiff as beneficiary. Grace Field maintained accounts with DBS Bank Limited and Oversea-Chinese Banking Corporation Limited in Singapore. Grace Field was struck off on or about 1.5.2020. [10] On 9.9.2009, the 2nd Defendant entered into a loan agreement with Leadmont Development Sdn Bhd (“Leadmont”). Under this agreement, the 2nd Defendant agreed to loan Leadmont up to the equivalent of RM100 million. Supplemental agreements were executed on 7.9.2012 and 7.9.2015. [11] The Plaintiff is the majority shareholder of Leadmont. Events in 2020-2022 [12] On 30.7.2020, the 1st Defendant sent a message to the Plaintiff informing him that she intended to strike off the 2nd Defendant from the Singapore Register of Companies. [13] The 2nd Defendant was struck off from the Singapore Register on 6.9.2021. [14] On 16.12.2021, the High Court at Shah Alam made an order placing Leadmont under judicial management. Mr Augustine T.K. James was appointed as Judicial Manager. [15] On 14.2.2022, creditors of Leadmont approved a Statement of Proposal submitted by the Judicial Manager. The Statement of Proposal provided for distributions to creditors, including the 2nd Defendant, over five years. [16] On 4.3.2022, the 1st Defendant applied to the Singapore High Court for an order reinstating the 2nd Defendant to the Singapore Register. [17] On 22.3.2022, the Singapore High Court ordered the reinstatement of the 2nd Defendant. [18] On 24.3.2022, the 2nd Defendant appointed the 3rd Defendant as stakeholder to receive distributions from Leadmont. [19] On 31.10.2022, the High Court at Shah Alam issued an order in the judicial management proceedings of Leadmont stating that no parties shall be allowed to garnish payments from accounts or make preventive or injunction orders to prevent payments to creditors during the payment period. Payment Arrangements [20] The Judicial Manager of Leadmont appointed Ms Phuan Tun Peng as sole authorised agent to facilitate payments to creditors for the period 8.12.2022 to 8.7.2027. [21] Leadmont issued 18 post-dated cheques to the 3rd Defendant representing the 2nd to 19th instalments due to the 2nd Defendant from April 2023 to July 2027 (the total debt being RM15,262,462.68). [22] From April 2023 onwards, cheques began to be encashed. As at June 2025, the sum of RM10,429,004.21 had been paid to the 3rd Defendant as stakeholder. [23] Nine post-dated cheques totalling RM4,833,458.47 remained uncashed, with due dates between 8.7.2025 and 8.7.2027. Correspondence and Communications [24] In September 2020 to September 2021, email correspondence occurred between the 1st Defendant, the Plaintiff, and the company secretary of the 2nd Defendant. These emails discussed resignation documentation and indemnity letters. [25] On 18.11.2022, the company secretary sent an email to the 1st Defendant about new Singapore Accounting and Corporate Regulatory Authority (“ACRA”) requirements concerning a Register of Nominee Shareholders. Email exchanges followed between the 1st Defendant and the Plaintiff on this topic. The Plaintiff suggested his son, Victor Wong Jenq Thorng, in one email. [26] On 8.3.2023, the Plaintiff sent a letter to the 1st Defendant. The letter provided written consent for the use of funds to settle a Public Bank Berhad overdraft facility. [27] On 4.4.2024, the Plaintiff sent another letter to the 1st Defendant requesting information about the status of funds received from the judicial management proceedings and the financial situation of the 2nd Defendant. [28] On 9.4.2024, the 1st Defendant replied by letter. In this letter, she stated that she is “the legal sole beneficial owner and shareholder” of the 2nd Defendant. She indicated she would reply in detail upon returning from Singapore. [29] On 30.4.2024, the 1st Defendant sent a detailed letter to the Plaintiff. In this letter, she stated: a) She had used RM4.8 million from monies received by the 2nd Defendant to make payments to Malayan Banking Berhad (“Maybank”). These payments were made pursuant to a Consent Judgment dated 30.10.2023. The payments related to loans obtained by Reap Synergy Sdn Bhd, which were secured by guarantees from the late mother, the Plaintiff, the 1st Defendant, and Keh Shin. b) She had used RM116,473.27 to make interest payments to Public Bank Berhad under an overdraft facility. This facility had been obtained by Leadmont and was secured by a legal charge over property belonging to the late mother's estate. The facility had been guaranteed by the late father, late mother, and the Plaintiff. c) These payments were made to protect and preserve the estate and the interests of the Plaintiff, 1st Defendant, and Keh Shin. d) At a meeting at Dome Cafe on or around 24.12.2021, there had been discussion and agreement regarding these arrangements. The 25.11.2022 Letter [30] A letter dated 25.11.2022 was sent to the Judicial Manager of Leadmont. The letter purported to be from the 1st Defendant as director of the 2nd Defendant. It instructed that distributions be paid to Metro Esquire (M) Sdn Bhd. The Plaintiff and/or his son were directors and majority shareholders of Metro Esquire. [31] The 1st Defendant lodged a police report stating that she did not issue or authorise this letter. Financial and Estate Matters [32] The Plaintiff was adjudicated bankrupt on 15.3.2021. His bankruptcy was annulled on 24.5.2023. [33] Loans obtained by Reap Synergy Sdn Bhd from Maybank were secured by guarantees from the late mother, the Plaintiff, the 1st Defendant, and Keh Shin. [34] A Public Bank Berhad overdraft facility obtained by Leadmont was secured by a legal charge over property belonging to the late mother's estate. This property is currently occupied by the Plaintiff. The facility was guaranteed by the late mother, late father, and the Plaintiff. [35] On 7.2.2023, the 2nd Defendant entered into a loan agreement with the estate of the late mother, providing for a loan of SGD5 million to the estate. [36] On 30.10.2023, a Consent Judgment was recorded between the estate and Maybank regarding instalment payments. The Previous Legal Proceedings [37] On 5.6.2024, the Plaintiff filed suit No. WA-22NCC-367- 06/2024 (“Suit 367”) in the Kuala Lumpur High Court. The defendants were the 1st Defendant, the 2nd Defendant, Ms Phuan Tun Peng, and Leadmont. [38] On 27.6.2024, the Plaintiff filed an interlocutory injunction application in that suit seeking to restrain payments to the 2nd Defendant under the judicial management proceedings. [39] On 30.9.2024, Justice Dato' Indera Mohd Arief Emran bin Ariffin dismissed the injunction application. The court ordered the Plaintiff to pay costs of RM15,000 to each set of defendants. Written grounds of judgment were issued. [40] On 2.10.2024, the Plaintiff filed a notice of appeal to the Court of Appeal. [41] On 11.10.2024, the Plaintiff filed a notice of motion in the Court of Appeal seeking injunctive relief pending appeal. [42] On 23.10.2024, the Plaintiff withdrew both the appeal and the notice of motion. [43] On 8.11.2024, the suit was withdrawn with liberty to file afresh and struck out. An order was made stating: “all costs that need to be paid here and under the Court Order dated 30.9.2024 by the Plaintiff to the Defendants must be settled before any legal action is filed again by the Plaintiff against any Defendant here.” The Present Proceedings [44] On 6.6.2025, the Plaintiff filed the present suit together with a Notice of Application for interim injunction (Enclosure 3). At that time, the costs ordered in the previous suit had not been paid. [45] On 17.6.2025, parties agreed to a holding over injunction pending disposal of Enclosure 3. [46] On 14.7.2025, the Plaintiff paid costs of RM20,800 (being the costs ordered in the previous proceedings). [47] On 5.8.2025, the application was heard. THE APPLICATION IN ENCLOSURE 3 [48] Enclosure 3 is a Notice of Application for an Interim Injunction filed by the Plaintiff mainly seeking for the following reliefs: a) An injunction restraining all Defendants from paying out nine postdated cheques totalling RM4,833,458.47 and the sum of RM5,512,530.94 already received from Leadmont, as well as from altering the shareholding structure of the 2nd Defendant; and b) An order compelling the 1st and/or 2nd Defendant to file a comprehensive statement of accounts detailing all payments, expenses, receipts and disbursements relating to the Leadmont funds. [49] Essentially, the Plaintiff seeks to freeze these funds and obtain full disclosure of how they have been utilised. The Plaintiff claims to be the beneficial owner of the 2nd Defendant company, with the 1st Defendant holding the shares merely as his nominee and trustee. He alleges the 1st Defendant has breached her fiduciary duties owed to him personally by misappropriating what are effectively his funds, specifically by using nearly RM5 million to settle liabilities relating to their late mother's estate rather than for his benefit as the true beneficial owner. THE PLAINTIFF'S CASE [50] The Plaintiff's case is that he is the sole beneficial owner of the share in the 2nd Defendant. He contends that the 1st Defendant holds the share as his nominee and trustee. [51] According to the Plaintiff, the 2nd Defendant was formed as an investment vehicle to enable him to hold funds overseas. He selected the 1st Defendant as his nominee because of her Singapore permanent resident status, which he claims was done to help her maintain that status. [52] The Plaintiff states that he provided all capital and funding for the 2nd Defendant's operations. He made all decisions regarding investments and business activities, with the 1st Defendant acting on his instructions. [53] The Plaintiff relies on the following matters as evidence of the nominee and trust relationship: a) The Declaration of Trust dated 27.9.2010 relating to Grace Field demonstrates a pattern of the 1st Defendant acting as his nominee in offshore structures; b) The November 2022 email correspondence regarding ACRA nominee requirements shows the 1st Defendant seeking his instructions which is conduct consistent with acting as a nominee; c) His letter dated 8.3.2024 providing consent for use of funds demonstrates that he exercised control over the 2nd Defendant's affairs; d) The September 2020 to September 2021 emails show the 1st Defendant prepared transfer documentation and instructed the company secretary to deal with him directly; e) He provided all capital for the company's operations and funded the loans to Leadmont, whilst there is no evidence the 1st Defendant contributed any funds; f) The 1st Defendant kept him informed about the reinstatement proceedings and recovery of funds from Leadmont; g) He agreed to pay the 1st Defendant monthly CPF contributions of SGD1,117 as remuneration for her administrative role. [54] The Plaintiff pleads two causes of action. The primary cause is breach of fiduciary duty owed personally to him by the 1st Defendant as his nominee and trustee. He alleges she has acted in a self-serving manner, disregarded his instructions and interests, and failed to cede control back to him. The alternative cause is breach of fiduciary duties owed to the 2nd Defendant as director. [55] The Plaintiff contends that the 1st Defendant has misused the 2nd Defendant's funds. The payments totalling RM4,916,473.27 to Maybank and Public Bank were not made for the company's benefit but to settle estate liabilities. These were unauthorised diversions of company funds. [56] The Plaintiff denies agreeing at any December 2021 meeting to use the 2nd Defendant's funds for estate purposes. He states he has no knowledge of how the RM11,236,783.57 already received has been used, beyond the 1st Defendant's admissions in her letter of 30.4.2024. [57] On the injunction application, the Plaintiff submits there are serious triable issues regarding beneficial ownership, the nominee relationship, and breach of fiduciary duties. Damages are inadequate given the ongoing dissipation risk. The admitted use of nearly RM5 million for estate purposes demonstrates a real danger of continuing unauthorised dissipation. [58] The balance of convenience favours the injunction to preserve the status quo. Without it, over RM4 million in remaining payments are at risk of dissipation. [59] The Plaintiff distinguishes the previous proceedings on the ground that the previous application sought to restrain receipt of funds under the judicial management order (thereby interfering with another judge's order), whilst this application seeks to restrain payments out after funds are received (causing no interference). The Plaintiff relies on the 1st Defendant's admissions in the letter dated 30.4.2024 to demonstrate the current risk of dissipation. [60] The Plaintiff submits that res judicata does not apply. The previous suit was withdrawn with liberty to file afresh, indicating the issues were not finally determined. [61] Regarding clean hands, the Plaintiff acknowledges the delay and breach of the costs order but submits these have been remedied and should not defeat the application given the substantive merits and risk of irreparable harm. [62] The Plaintiff undertakes to abide by any order as to damages and submits he is able to meet the undertaking. THE 1ST DEFENDANT'S CASE [63] The 1st Defendant denies that she is the Plaintiff's nominee or trustee. She contends that she is and has always been the legal and beneficial owner of the 2nd Defendant, having incorporated the company and remained its sole shareholder and director since inception. [64] The 1st Defendant submits that the Declaration of Trust dated 27.9.2010 relates only to Grace Field. It does not establish that the Plaintiff is the beneficiary of the 2nd Defendant or that she holds the 2nd Defendant's share as his nominee or trustee. [65] Regarding the use of the 2nd Defendant's funds, the 1st Defendant states that at the meeting at Dome Cafe on or around 24.12.2021, she and the Plaintiff (and subsequently Keh Shin) agreed to use monies received from Leadmont to settle liabilities relating to Reap Synergy Sdn Bhd loans and the Leadmont overdraft. These facilities were secured by guarantees and charges involving their late mother's estate, in which both siblings have interests. [66] The 1st Defendant submits that the payments to Maybank and Public Bank were made pursuant to this agreement and were necessary to protect the estate and all family members' interests. The Maybank loans related to properties owned by Reap Synergy Sdn Bhd, with the late mother, Plaintiff, 1st Defendant, and Keh Shin as guarantors. The Public Bank overdraft was secured by a charge over estate property (occupied by the Plaintiff) and guaranteed by the Plaintiff. [67] The 1st Defendant contends that on 7.2.2023, the 2nd Defendant entered into a loan agreement advancing SGD5 million to the estate. The payments to Maybank and Public Bank were not unauthorised diversions but were made within the context of family arrangements regarding estate liabilities. [68] On the injunction application, the 1st Defendant submits there is no serious issue to be tried. The Plaintiff lacks locus standi due to the proper plaintiff rule. Any alleged misuse of the 2nd Defendant's funds constitutes a wrong to the company. The proper plaintiff is the company, not the Plaintiff as alleged beneficial shareholder. The Plaintiff should have sought leave under sections 347 to 350 of the Companies Act 2016 for derivative proceedings, which he has not done. [69] The 1st Defendant submits this issue was determined by Justice Emran in the previous proceedings. The Plaintiff is bound by that determination and estopped from re-litigating. The doctrine of res judicata applies and bars the present application. [70] The 1st Defendant contends damages are an adequate remedy. The subject matter is purely monetary, quantifiable and compensable. There is no evidence of irreparable harm. [71] On balance of convenience, the 1st Defendant submits the injunction would prevent the 2nd Defendant from using its own funds indefinitely, to the company's detriment. The payments made were legitimate and necessary to protect family interests in the estate. [72] The 1st Defendant submits the Plaintiff has not come to court with clean hands. There has been inexplicable delay of approximately 41 months from December 2021 (when the Plaintiff allegedly learned of the intended use of funds at the Dome Cafe meeting) to June 2025 (when this application was filed). The Plaintiff breached the 8.11.2024 court order by filing suit before paying costs. There has been inadequate disclosure of Justice Emran's substantive findings. Additionally, there is the forged signature incident of 25.11.2022. [73] he 1st Defendant contends the Plaintiff's undertaking as to damages is illusory. The Plaintiff was bankrupt until May 2023 and has admitted financial hardship. He has provided no evidence of means to support the undertaking. THE 2ND AND 3RD DEFENDANTS' CASE [74] The 2nd and 3rd Defendants adopt and support the submissions advanced by the 1st Defendant. They emphasise the following additional matters particularly relevant to their position. [75] The 2nd Defendant, as a separate legal entity distinct from its shareholder, is the legal owner of all funds received from Leadmont pursuant to the judicial management proceedings. The Plaintiff, even if he were the beneficial owner of shares in the 2nd Defendant, has no direct proprietary interest in the company's assets. This follows from the fundamental principle in company law established in Macaura v Northern Assurance Co Ltd [1925] AC 619 (House of Lords) that a shareholder has no legal or equitable interest in the company's assets. [76] The proper plaintiff rule is therefore directly engaged. If there has been any misuse of the 2nd Defendant's funds, the wrong has been done to the 2nd Defendant as a company, not to the Plaintiff personally. The cause of action vests in the company. The Plaintiff's remedy, if any, lies in seeking leave of court under sections 347 to 350 of the Companies Act 2016 to bring derivative proceedings on behalf of the company. [77] The 3rd Defendant's position as stakeholder solicitors is also material. The 3rd Defendant was appointed by the 2nd Defendant to receive payments from Leadmont. The 3rd Defendant holds these funds as stakeholder pending final determination and has no beneficial interest in them. The 3rd Defendant will abide by any order the court makes regarding the disposition of funds held in its stakeholder capacity. [78] On the application for injunctive relief, the 2nd and 3rd Defendants submit that damages are plainly adequate. The claim is purely for monetary compensation. There is no suggestion of unique assets or irreplaceable property. If the Plaintiff succeeds at trial in establishing that the funds belong to him beneficially, he can be compensated by an award of damages. [79] The 2nd and 3rd Defendants further submit that the balance of convenience weighs against granting the injunction. The 2nd Defendant is prevented from dealing with its own funds. This impedes the company's ability to meet its obligations and conduct its affairs. The restrictions sought are broad and would effectively paralyse the company's operations indefinitely pending trial. [80] The 2nd and 3rd Defendants support the 1st Defendant's submissions regarding res judicata, clean hands, and the inadequacy of the Plaintiff's undertaking as to damages. THE LEGAL FRAMEWORK FOR INTERLOCUTORY INJUNCTIONS [81] The principles governing the grant of interlocutory injunctions are well established. In the landmark case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 (House of Lords), Lord Diplock set out the approach which has been consistently adopted by Malaysian courts. [82] The court must undertake an inquiry along the following lines. First, the court must ask whether the totality of facts presented discloses a serious question or bona fide serious issue to be tried. This does not require the court to decide the merits of the case at this stage. The threshold is whether there is a triable issue that warrants further investigation at trial. [83] Second, if a serious issue has been disclosed, the court must consider where the justice of the case lies by examining the balance of convenience. This involves weighing the plaintiff's need for protection against injury for which damages would not adequately compensate against the corresponding need of the defendant to be protected against injury resulting from being prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages. [84] These principles were authoritatively restated by the Court of Appeal in Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1995] 1 MLJ 193, where Gopal Sri Ram JCA (as he then was) held that having found that an issue has been disclosed that requires further investigation, the court must consider where the justice of the case lies. If the court concludes that the plaintiff would suffer the greater injustice by the refusal of an injunction, the court would be entitled to grant relief. Similarly, if the court concludes that the defendant would suffer the greater injustice by the grant of an injunction, the court would be entitled to refuse relief. [85] The principles are clear and uncontroversial. Their application to the present facts requires careful consideration of several important issues. ANALYSIS AND FINDINGS Serious Issues to be Tried The Beneficial Ownership Issue and the Proper Plaintiff Rule [86] The Defendants' primary contention is that the Plaintiff lacks locus standi to bring this action because of the proper plaintiff rule. They rely heavily on Justice Emran's decision in the previous proceedings and on the recent Federal Court decision in Low Cheng Teik & Ors v Low Ean Nee [2024] 5 MLJ 580. [87] The proper plaintiff rule, derived from the seminal case of Foss v Harbottle (1843) 67 ER 189 (Court of Chancery), provides that where a wrong is committed against a company, the proper plaintiff is the company and not its shareholders. This is because a company is a separate legal entity with its own rights to sue. If harm is done to a company, it is for the company, and not its individual shareholders, to decide whether to seek redress. [88] In Low Cheng Teik, Nallini Pathmanathan FCJ held at paragraph 60 that the proper plaintiff rule states that it is the company and not its individual shareholders that prima facie comprise the proper plaintiff in an action in relation to a wrong done to the company. This principle flows from the fundamental doctrine in company law that a company is a separate legal entity from its shareholders with its own rights to sue. [89] The Federal Court went on to hold at paragraph 96 that if the act, omission or misconduct is an injury done to the company, resulting in a loss to the company, then the cause of action vests in the company and section 347 of the Companies Act 2016 is the proper remedy to be utilised. [90] The Defendants contend that the Plaintiff's claims relate to the alleged misuse of the 2nd Defendant's funds, money that belongs to the company, not to the Plaintiff personally. They argue that any loss resulting from such misuse is a loss to the company. Therefore, the proper plaintiff is the 2nd Defendant, and the Plaintiff should have sought leave under sections 347 to 350 of the Companies Act 2016 to bring derivative proceedings. [91] This analysis was adopted by Justice Emran in his decision dated 30.9.2024 in the previous proceedings. His Lordship held at paragraphs 19 and 20 that the Plaintiff's claims of alleged wrongs related to the wrong utilisation of monies received by the 2nd Defendant from Leadmont. The Plaintiff did not have a direct right to those monies as they belonged to the 2nd Defendant. The alleged wrong utilisation pointed at best to a possible claim of breach of fiduciary duties owed by the 1st Defendant to the 2nd Defendant. The plaintiff did not have a right to institute a claim on behalf of the 2nd Defendant unless leave of court was obtained under sections 347 to 350 of the Companies Act 2016. [92] Whilst I have the utmost respect for Justice Emran's analysis, I must respectfully distinguish the present proceedings from those that came before His Lordship. [93] First and fundamentally, the present case is pleaded not as a derivative action but as a personal claim by the Plaintiff as beneficial owner of the shares in the 2nd Defendant. The Plaintiff's Statement of Claim pleads two distinct causes of action. [94] The first cause of action, pleaded at paragraphs 49 and 50 of the Statement of Claim, is a breach of fiduciary duty owed personally to the Plaintiff by the 1st Defendant as his nominee and trustee. The Plaintiff pleads that the 1st Defendant holds the shares in the 2nd Defendant on trust for him and is his nominated director. As such, she owes him personal fiduciary duties to act honestly and fairly, to act in his interests, and to account for the use of the company's assets. The alleged breach is that she has acted in a self-serving manner, in complete disregard of the Plaintiff's instructions and interests, and has failed to recognise that he is the owner of the 2nd Defendant and to cede control back to him. [95] This is not a claim for a wrong done to the company. It is a claim that the 1st Defendant, as the Plaintiff's nominee and trustee, has breached the personal fiduciary duties she owes to him as beneficial owner. If the Plaintiff can establish at trial that he is indeed the beneficial owner and that the 1st Defendant holds the shares as his nominee, then he has a personal cause of action against her for breach of the fiduciary duties arising from that nominee relationship. [96] The second cause of action, pleaded in the alternative at paragraph 51.5 of the Statement of Claim, is for breach of fiduciary duties owed to the 2nd Defendant as director. This cause of action would indeed face the difficulty posed by the proper plaintiff rule. However, the Plaintiff's primary case is based on his personal claim as beneficial owner, not on a derivative claim on behalf of the company. [97] In Perman Sdn Bhd & Ors v European Commodities Sdn Bhd & Anor [2006] 1 MLJ 97 (Court of Appeal), Gopal Sri Ram JCA (as he then was) held at pages 106-107 that the real question is who was the true owner of the shares. Only the owner of property may declare himself as trustee. No one, including a third party, has the power to declare himself a trustee of someone else's property. [98] His Lordship went on to emphasise the fundamental principle that a company is a separate person from its shareholders. Shareholders have no interest, legal or beneficial, over the property of the company. As Lord Buckmaster said in Macaura v Northern Assurance Co Ltd & Ors, no shareholder has any right to any item of property owned by the company, for he has no legal or equitable interest therein. He is entitled to a share in the profits whilst the company continues to carry on business and a share in the distribution of surplus assets when the company is wound up. [99] However, this principle does not preclude the possibility that shares themselves may be held on trust. Whilst a shareholder has no direct interest in the company's assets, the shares themselves are property that can be held by a registered holder as nominee or trustee for a beneficial owner. [100] The question in the present case is whether the 1st Defendant holds the one share in the 2nd Defendant as nominee and trustee for the Plaintiff. If she does, then the Plaintiff as beneficial owner has a personal cause of action against her for breach of the fiduciary duties arising from that trust relationship. This is not a derivative action brought on behalf of the company for a wrong done to the company. It is a personal action brought by a beneficial owner against his nominee and trustee. [101] I am satisfied that the Plaintiff has pleaded a serious issue to be tried on this fundamental question of beneficial ownership and the existence of a nominee and trust relationship. The evidence at this interlocutory stage, whilst not conclusive, is sufficient to raise a triable issue. [102] The Declaration of Trust dated 27.9.2010, whilst relating to Grace Field rather than the 2nd Defendant, provides evidence that the 1st Defendant has previously acted as nominee and trustee for the Plaintiff in relation to an offshore investment vehicle. It demonstrates a pattern of conduct. [103] The email correspondence from November 2022 regarding ACRA nominee requirements is significant. The 1st Defendant sought the Plaintiff's advice and instructions regarding the appointment of a nominee shareholder. This is conduct consistent with her acting under his direction as his nominee, not with her being the true owner exercising her own independent judgment. [104] The letter dated 8.3.2023 from the Plaintiff giving written consent for the use of funds is similarly significant. Why would the 1st Defendant need the Plaintiff's consent if she were the true owner? The very act of seeking and obtaining consent suggests that the Plaintiff was exercising control over the company's affairs. [105] The fact that the Plaintiff provided all the capital for the 2nd Defendant's operations and funded the loans to Leadmont is relevant circumstantial evidence. No evidence has been adduced to suggest that the 1st Defendant contributed any funds of her own. [106] The email correspondence from September 2020 to September 2021, in which the 1st Defendant prepared resignation and indemnity letters and instructed the company secretary to deal directly with the Plaintiff regarding the transfer of shareholding and directorship, is powerful evidence of the understanding between the parties at that time. [107] Against this evidence, the 1st Defendant now asserts that she is and always has been the true owner. However, this assertion appears to date only from March 2023. Prior to that time, her conduct in seeking the Plaintiff's instructions, obtaining his consent and preparing documentation for the transfer of shares to him was consistent with her acting as his nominee. [108] I emphasise that I am not at this stage making any final determination on the question of beneficial ownership. That is a matter for trial. However, I am satisfied that there is a serious triable issue which warrants full investigation. The evidence is sufficient to raise a real question to be answered, not merely a fanciful or frivolous claim. The Breach of Fiduciary Duty Issue [109] If, as the Plaintiff contends, the 1st Defendant is his nominee and trustee, then she owes him fiduciary duties arising from that relationship. A nominee or trustee must act honestly and in good faith, must not place herself in a position of conflict of interest, must account for the trust property, and must act in accordance with the beneficiary's instructions (subject to any terms of the trust). [110] The admitted facts give rise to a serious triable issue regarding breach of these duties. In her letter dated 30.4.2024, the 1st Defendant admitted that she had used RM4.8 million of the 2nd Defendant's funds to partially settle banking facilities granted by Maybank in respect of properties owned by their late mother's estate. She also admitted using RM116,473.27 to settle interest payments on an overdraft facility granted by Public Bank, secured by a charge over their late mother's property. [111] These were not payments for the benefit of the 2nd Defendant. They were payments to protect the estate of the parties' late mother. Whilst the estate may have been of interest to both the Plaintiff and the 1st Defendant in their capacities as beneficiaries or executors, that does not mean that the 2nd Defendant's funds could properly be used for this purpose. [112] The 1st Defendant is the sole executrix of her late mother's estate. She therefore had a personal interest in protecting that estate from claims by creditors. By using the 2nd Defendant's funds for this purpose, she placed herself in a position of conflict between her duty to the Plaintiff as beneficial owner of the 2nd Defendant and her personal interest as executrix of the estate. [113] The 1st Defendant contends that these payments were made pursuant to an agreement reached at a meeting at Dome Cafe on or around 24.12.2021, and that the Plaintiff was aware of and consented to the use of funds for this purpose. However, the Plaintiff denies any such agreement. This factual dispute cannot be resolved at this interlocutory stage and must be determined at trial. [114] What is clear is that the 1st Defendant used substantial sums of the 2nd Defendant's money, nearly RM5 million in total, to settle liabilities that were not the 2nd Defendant's liabilities but related to the estate. Even if there was some informal understanding or agreement, the question arises whether this was a proper exercise of the 1st Defendant's duties as nominee and trustee (if such she was) or as director of the company. [115] Moreover, the Plaintiff has no knowledge or particulars as to how the RM11,236,783.57 already received by the 3rd Defendant has been utilised, beyond the admissions in the 30.4.2024 letter. The lack of transparency and accounting is itself a matter of concern and raises questions about the proper administration of the company's affairs. [116] I am satisfied that there are serious triable issues regarding whether the 1st Defendant has breached fiduciary duties, both as alleged nominee and trustee of the Plaintiff and as director of the 2nd Defendant. The Res Judicata Issue [117] The Defendants contend that the present application is barred by res judicata or issue estoppel arising from Justice Emran's decision dated 30.9.2024 in the previous proceedings. This is an important issue that requires careful analysis. [118] The doctrine of res judicata prevents parties from re-litigating issues that have been finally determined between them. The principle is founded on considerations of public policy and justice. There must be an end to litigation, and parties should not be vexed twice for the same cause. [119] However, the doctrine has important limitations. For res judicata to apply, there must have been a final determination on the merits of the issues between the parties. An interlocutory decision, even if appealable, does not generally give rise to res judicata effect because it is not a final determination of the rights of the parties. [120] Moreover, for issue estoppel to apply, the issue must have been fundamental to the previous decision, not merely collateral or incidental. The issue must have been actually decided, not merely assumed or taken for granted. Justice Emran's Decision: What Was Decided [121] I have carefully examined the written grounds of judgment delivered by Justice Emran on 30.9.2024 in the previous injunction application. His Lordship's decision was based on two primary grounds. [122] The first ground was that granting the injunction sought would interfere with the exercise and powers of another High Court judge. The Plaintiff in that case had sought to restrain payments to the 2nd Defendant under the judicial management proceedings. Justice Emran held at paragraphs 15 to 17 that the High Court at Shah Alam had issued an order on 31.10.2022 providing that no parties shall be allowed to make any preventive or injunction orders to prevent payments to be made to creditors during the payment period. To allow the prayer sought by the Plaintiff against the third and fourth defendants would cause the court to interfere with the implementation of that order. The attempt to interfere with the implication of the said order could not be entertained as it remained enforceable and should be respected. [123] The second ground was the proper plaintiff rule. Justice Emran held at paragraphs 19 to 29 that the Plaintiff's claims related to the wrong utilisation of monies received by the 2nd Defendant from Leadmont. The Plaintiff did not have a direct right to those monies as they belonged to the 2nd Defendant. The alleged wrong utilisation pointed to a possible breach of fiduciary duties owed by the 1st Defendant to the 2nd Defendant. The Plaintiff should have sought leave under sections 347 to 350 of the Companies Act 2016 to institute proceedings on behalf of the company for alleged wrongs committed against the company. [124] Importantly, Justice Emran expressly stated at paragraph 18 that whether the shares in the 2nd Defendant belonged to the Plaintiff as claimed or otherwise is an issue that will only be determined by the court after hearing the merits of the claim. The claim over the shares remained disputed. [125] His Lordship also noted at paragraph 29 that the court was declining to grant the injunctive relief sought. He did not dismiss the entire action, only the injunction application. The substantive suit remained pending. [126] Subsequently, on 8.11.2024, the Plaintiff withdrew the previous suit. The court granted the application to withdraw and struck out the suit, with liberty to file afresh, subject to the condition that all costs awarded must be settled before any new suit could be filed. Material Distinctions from the Present Case [127] The first and most fundamental distinction is that the previous suit was withdrawn with liberty to file afresh. The court expressly granted the Plaintiff liberty to commence fresh proceedings. Whilst this liberty was made conditional on payment of costs, and although the payment was made on 14.7.2025 (after the filing of this suit on 6.6.2025), I accept the Plaintiff's explanation that this was an oversight. As the costs have now been paid, the condition is satisfied and the Plaintiff is entitled to maintain these fresh proceedings. [128] The grant of liberty to file afresh is inconsistent with any suggestion that the issues had been finally determined such that they could not be re-litigated. If res judicata applied, there would be no point in granting liberty to file afresh, because any fresh proceedings would be barred by the earlier decision. [129] The second distinction concerns the relief sought. In the previous case, the Plaintiff sought to restrain the receipt of funds by the 2nd Defendant from Leadmont under the judicial management proceedings. This relief would have directly interfered with the order of the High Court at Shah Alam dated 31.10.2022, which provided that no parties shall be allowed to make preventive or injunction orders to prevent payments to be made to creditors. [130] In the present case, the Plaintiff seeks to restrain payments from the 2nd Defendant to third parties. He does not seek to prevent the 2nd Defendant from receiving funds from Leadmont. Indeed, all the payments under the judicial management proceedings have now been received by the 3rd Defendant as stakeholder. The present relief concerns what happens to those funds after they have been received by the 2nd Defendant. [131] This is a material distinction. The objection in the previous case was that the injunction would interfere with the judicial management process and the order of another High Court judge. That objection does not apply to the present relief, which concerns the internal management and disposition of the 2nd Defendant's funds after they have been properly received. [132] The third distinction concerns the question of beneficial ownership. Justice Emran expressly stated at paragraph 18 that whether the shares in the 2nd Defendant belonged to the Plaintiff as claimed or otherwise is an issue that will only be determined after hearing the merits of the claim. The claim over the shares remained disputed. [133] This statement makes clear that Justice Emran was not determining the question of beneficial ownership. His Lordship was proceeding on the assumption that even if the Plaintiff were the beneficial owner, the proper plaintiff rule would still apply to prevent him from bringing a claim for a wrong done to the company without leave under the Companies Act 2016. [134] However, as I have explained above, the Plaintiff's primary claim in the present proceedings is not a derivative claim for a wrong done to the company, but a personal claim for breach of fiduciary duties owed to him as beneficial owner by the 1st Defendant as his nominee and trustee. This formulation of the claim was not squarely addressed in Justice Emran's judgment, which focused on the proper plaintiff rule in the context of wrongs done to the company. The Proper Scope of Res Judicata [135] Having regard to these distinctions, I am not persuaded that the doctrine of res judicata bars the present application. [136] Justice Emran's decision was an interlocutory decision refusing injunctive relief. It was not a final determination on the merits of the Plaintiff's claims. The substantive questions of whether the Plaintiff is the beneficial owner of the shares in the 2nd Defendant, whether the 1st Defendant holds those shares as his nominee and trustee and whether she has breached fiduciary duties were expressly left to be determined at trial. [137] The decision was based primarily on the ground that the injunction sought would interfere with the judicial management order. That ground does not apply to the present relief, which concerns payments from the 2nd Defendant to third parties after the funds have been properly received. [138] The decision also relied on the proper plaintiff rule. However, the Plaintiff's present case is formulated as a personal claim arising from the nominee and trust relationship, not as a derivative claim for wrongs done to the company. Whilst there is overlap between the two formulations, they are not identical. [139] Moreover, the previous suit was withdrawn with liberty to file afresh. The very grant of this liberty indicates that the issues were not regarded as finally determined. [140] I am fortified in this conclusion by the principles articulated in Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1988] 3 MLJ 90 (HC) and Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC). In Cheng Hang Guan, it was held that the true test of res judicata in its wider sense or issue estoppel is whether there has been a final determination of the issue. For such a determination, there must be a final adjudication by the court, not an interlocutory order. Furthermore, it is trite law that the hearing of an application for an interlocutory injunction is not a trial on the merits. Similarly, in Asia Commercial Finance, it was held that for res judicata to apply, there must be a final decision on the merits, and the same matter must be in issue between the same parties. An interlocutory order, particularly one that is withdrawn or varied, does not generally give rise to res judicata effect. [141] I am therefore satisfied that the doctrine of res judicata does not bar the present application. The Plaintiff is entitled to have his application considered on its merits. Balance of Convenience and Adequacy of Damages Inadequacy of Damages as a Remedy [142] The Defendants contend that damages are an adequate remedy for the Plaintiff. They argue that the subject matter is purely monetary in nature consisting of funds that can be quantified and compensated if the Plaintiff succeeds at trial. They rely on the principle established in Perbadanan Setiausaha Kerajaan Selangor & Ors v Metroway Sdn Bhd & Anor [2003] 3 MLJ 522 (Court of Appeal) that specific relief is generally declined where monetary compensation is an adequate remedy. [143] Whilst I accept the general principle, I am not persuaded that damages are an adequate remedy in the present circumstances. [144] The concern here is not merely the quantum of money involved, substantial though it is. The concern is the ongoing risk of dissipation. The 1st Defendant has admitted to using nearly RM5 million of the 2nd Defendant's funds to settle liabilities of the estate. The Plaintiff has no knowledge or particulars as to how the RM11,236,783.57 already received has been utilised beyond those admitted payments. There are further substantial sums still to be received over the coming months and years. [145] In circumstances where there is evidence of past unauthorised dissipation and a lack of transparency regarding current fund utilisation, there is a real risk that further dissipation will occur if no injunction is granted. Substantial sums could be paid away to third parties or used for purposes unrelated to the 2nd Defendant's affairs. By the time the matter comes to trial, the funds may have been dissipated beyond recovery. [146] Damages would not adequately compensate the Plaintiff if the funds have been dissipated to third parties who are not parties to these proceedings and against whom no judgment could be enforced. The Plaintiff would be left with a judgment against the Defendants but no realistic prospect of recovery. [147] Moreover, the 1st Defendant is already facing financial pressures relating to the estate and its obligations to Maybank and Public Bank. If the funds are used to settle estate liabilities, the Plaintiff's ability to recover damages may be compromised. [148] This is not a case of straightforward commercial loss where the defendant's ability to satisfy a judgment is clear. The admitted use of company funds for estate purposes, the lack of transparency, and the ongoing risk of dissipation all point to the inadequacy of damages as a remedy. Assessment of Risk and Prejudice [149] On the balance of convenience, I must weigh the competing interests of the parties. [150] If the injunction is granted, the Defendants will be restrained from paying out the funds already received and those still to be received, pending the determination of the action. This will cause some inconvenience and may delay the use of funds that the 1st Defendant contends are needed for the estate. [151] However, the injunction is limited in scope. It does not prevent the 2nd Defendant from receiving funds from Leadmont, and those funds will continue to be received in accordance with the judicial management process. It does not prevent the Defendants from using funds already held for legitimate purposes relating to the 2nd Defendant's own affairs. It restrains only payments out to third parties and alterations of shareholding. [152] Moreover, the Defendants can apply to court if they contend that specific payments are necessary and proper. The court retains control and can vary the injunction if circumstances require. [153] Against this limited prejudice to the Defendants, I must weigh the substantial prejudice to the Plaintiff if the injunction is refused. The admitted past dissipation of nearly RM5 million for estate purposes demonstrates a real risk of continuing dissipation. Substantial further sums totalling over RM4 million remain to be paid. Without an injunction, there is nothing to prevent the 1st Defendant from using these funds for purposes unrelated to the 2nd Defendant. [154] If the funds are paid away and the Plaintiff ultimately succeeds at trial in establishing that he is the beneficial owner and that the 1st Defendant is his nominee and trustee, he may be left with a judgment but no realistic prospect of recovery. The funds may have been dissipated to third parties or absorbed into the estate in ways that cannot be reversed. [155] The purpose of an interlocutory injunction is to preserve the status quo pending trial. In the present case, the status quo is that the 2nd Defendant has substantial funds that have been and will be received from Leadmont pursuant to the judicial management process. The injunction will preserve those funds pending determination of the fundamental question of who is entitled to them, namely whether the 1st Defendant as the registered owner or the Plaintiff as the beneficial owner. [156] I am satisfied that the balance of convenience favours the grant of the injunction. Clean Hands [157] The Defendants contend that the Plaintiff has not come to court with clean hands and should therefore be denied equitable relief. They point to several matters: inexplicable delay; breach of the court order dated 8.11.2024 by filing suit before paying costs; inadequate disclosure of Justice Emran's substantive findings; and the forged signature incident of 25.11.2022. [158] The doctrine of clean hands requires that a party seeking equitable relief must have acted fairly and honestly in relation to the matter for which relief is sought. However, the doctrine is not applied mechanically. The court must consider the nature and gravity of the misconduct, its relationship to the subject matter of the claim, and the overall justice of the case. [159] I address each of the matters raised in turn. Delay [160] The Defendants contend that there has been an inexplicable delay of approximately 41 months between December 2021 (when the Defendants allege the Plaintiff was informed of the intended use of the funds during a meeting) and June 2025 (when the present application was filed). [161] The Plaintiff's explanation is that he only became aware of the unauthorised dissipation of funds when the 1st Defendant's letter dated 30.4.2024 was received. That letter contained the admissions regarding the use of RM4.8 million for Maybank and RM116,473.27 for Public Bank. [162] Whilst it is true that payments under the judicial management process commenced in 2022, and the Plaintiff may have been aware that funds were being used for estate purposes, the full extent of the dissipation and the 1st Defendant's position that she is the sole owner became clear in March 2023, while the full extent of the dissipation (specifically the RM4.8 million payment) only became clear in April 2024. [163] Moreover, the Plaintiff did commence proceedings in June 2024 (the previous suit), shortly after receiving the 30.4.2024 letter. Although that suit was subsequently withdrawn, the present suit was commenced in June 2025, within a reasonable time after the withdrawal of the previous proceedings. [164] In the context of injunctive relief, delay is relevant primarily where it suggests that the alleged urgency or irreparable harm is not genuine. If a plaintiff delays for years before seeking an injunction, it may indicate that the situation is not as urgent as claimed. [165] In the present case, whilst there has been some delay, I do not consider it to be so substantial as to defeat the application. The delay is partially explained by the evolving understanding of the full extent of the dissipation. Moreover, the continuing risk of future dissipation, particularly in relation to the substantial sums still to be received, provides ongoing justification for injunctive relief. Breach of Court Order [166] The Defendants contend that the Plaintiff breached the court order dated 8.11.2024 by filing the present suit on 6.6.2025 before paying the costs of RM20,800. The order provided that all costs awarded must be settled before any new suit could be filed. [167] This is a more serious matter. The order was clear and unambiguous. The Plaintiff should have paid the costs before filing the fresh proceedings. He did not do so. The costs were only paid on 14.7.2025, more than a month after the suit was filed and only after the Defendants had filed a striking-out application. [168] The Plaintiff's explanation is that this was an oversight for which he apologises. Counsel has confirmed that the costs have now been fully paid and that no prejudice has been occasioned to the Defendants. [169] Whilst I accept that the breach has been remedied and that no irreparable prejudice has been caused, this conduct does reflect poorly on the Plaintiff's regard for court orders. A litigant who seeks the court's assistance in the form of an injunction must demonstrate respect for the court's processes and orders. [170] However, I do not consider that this breach, now remedied, is sufficiently serious to warrant refusal of all relief. The clean hands doctrine is not a mechanical bar but requires the court to consider the overall justice of the case. The breach can be reflected in the costs order rather than being a ground for dismissing the application entirely. Inadequate Disclosure [171] The Defendants contend that the Plaintiff failed to adequately disclose the substantive findings in Justice Emran's judgment, particularly regarding the proper plaintiff rule. [172] In his affidavit in support filed on 6.6.2025, the Plaintiff stated at paragraph 5A that an application for an injunction was made in the previous suit and was dismissed for the reason, inter alia, that the court could not stay or restrain the implementation of an order from a High Court of concurrent jurisdiction. He exhibited the order dated 30.9.2024. [173] The Defendants contend that the Plaintiff should have disclosed not merely the order but the full written grounds of judgment, which contained extensive analysis of the proper plaintiff rule and the statutory requirements for derivative actions. [174] In applications for injunctive relief, particularly ex parte applications, there is a duty of full and frank disclosure. A plaintiff must disclose all material facts, including those that may be adverse to the application. Where there has been a previous related proceeding, the plaintiff must fairly disclose the outcome and the reasons for that outcome. [175] In the present case, the Plaintiff did disclose that there had been a previous injunction application and that it had been dismissed. He exhibited the court's order. However, he did not exhibit or summarise the detailed written grounds. [176] The question is whether this constituted a material non-disclosure sufficient to defeat the application. In my judgment, it does not. [177] First, the order itself was disclosed. Whilst the written grounds provide more detail, the fact of dismissal was not concealed. [178] Second, the present application was heard inter partes, not ex parte. The Defendants had full opportunity to, and did in fact, bring Justice Emran's written grounds to the court's attention. The judgment was exhibited as part of the Defendants' affidavits in reply. The court has therefore had the benefit of reviewing the full analysis. [179] Third, the matters have been fully ventilated through the adversarial process. Both sides have had the opportunity to address Justice Emran's reasoning and to explain why it does or does not apply to the present case. [180] In these circumstances, whilst the disclosure could have been more comprehensive, I do not consider that this amounts to such serious non-disclosure as to warrant dismissal of the application. The court has had full benefit of all relevant materials and has been able to assess the application on its merits. Forged Signature [181] The Defendants have drawn attention to an incident on 25.11.2022 in which a letter purportedly signed by the 1st Defendant as director of the 2nd Defendant was sent to the Judicial Manager. The letter instructed the Judicial Manager to pay distributions to Metro Esquire (M) Sdn Bhd, a company in which the Plaintiff and/or his son were directors and majority shareholders. [182] The 1st Defendant states in her affidavit that she never issued or authorised this letter and that she believes the signature was forged. She lodged a police report regarding this matter. [183] This is clearly a serious allegation. If proven, it would indicate dishonest conduct on the part of the Plaintiff or persons acting at his behest. [184] However, the Plaintiff denies any knowledge of or involvement in this letter. He states that he did not authorise anyone to issue such a letter on behalf of the 2nd Defendant. [185] This factual dispute cannot be resolved at this interlocutory stage. It would require examination of the document, expert evidence on the signature, and potentially criminal investigation. The police report was lodged but I have not been informed of any outcome. [186] Whilst this allegation adds to the overall picture of conflict and dispute between the parties, I cannot at this stage make any findings of fact regarding whether any forgery occurred or who was responsible. The allegation remains unproven. [187] In the absence of clear proof of dishonest conduct by the Plaintiff in relation to the subject matter of the present application, I do not consider that this allegation should defeat the injunction. Overall Assessment on Clean Hands [188] Taking all these matters together, I acknowledge that the Plaintiff's conduct has not been exemplary. The delay, the breach of the costs order, and the incomplete disclosure all reflect poorly on his approach to these proceedings. [189] However, I must weigh these matters against the substance of the case. There is substantial evidence supporting a triable issue regarding beneficial ownership and nominee relationship. There is admitted dissipation of nearly RM5 million for estate purposes. There are substantial further sums at risk of dissipation. [190] The clean hands doctrine is not applied mechanically to bar relief in every case where a plaintiff's conduct has been less than perfect. The court must consider whether the misconduct is so serious, and so closely related to the subject matter of the claim, that it would be inequitable to grant relief. [191] In Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] 3 MLJ 401 (HC), it was held that the clean hands with which one needs to come to equity is not clean hands in all respects but clean hands in connection with 'the matter in litigation'. The 'matter in litigation' is the essential dispute between the parties and not the application for the equitable relief per se. If the equitable relief is an injunction, the matter in litigation is the dispute that requires an injunction to provide temporary relief pending full resolution of the dispute. [192] The matters of delay, breach of costs order, and incomplete disclosure, whilst regrettable, do not go to the heart of the Plaintiff's claim regarding beneficial ownership and dissipation of funds. They are procedural defaults rather than substantive dishonesty regarding the subject matter of the dispute. [193] I consider that the appropriate response is to mark the Plaintiff's conduct through the costs order rather than to refuse relief entirely. The Plaintiff should not be allowed to benefit from his breach of the costs order and his incomplete disclosure. However, the substantive merit of his claim and the risk of irreparable harm justify the grant of injunctive relief. [194] Accordingly, whilst I note the clean hands issues, I do not consider them to be a bar to the grant of the injunction in this case. Undertaking as to Damages [195] The Defendants contend that the Plaintiff's undertaking as to damages is illusory because he was adjudicated bankrupt from 15.3.2021 to 24.5.2023 and has admitted to experiencing financial hardship. They argue that he has failed to provide any evidence of means to support the undertaking. [196] It is well established that the court is entitled to consider the plaintiff's ability to meet an undertaking as to damages and may in appropriate cases require security such as a bank guarantee. In Cheah Theam Swee v Overseas Union Bank Ltd & Ors [1989] 1 MLJ 426 (HC), the court held that a bare undertaking, unsupported by evidence of means, may be insufficient where the plaintiff has failed to respond to challenges about his financial capacity. [197] In the present case, the Plaintiff's bankruptcy has been annulled. His bankruptcy order was made on 15.3.2021 and annulled on 24.5.2023. He is therefore no longer an undischarged bankrupt. [198] The Plaintiff has stated in his affidavit that he is able to meet the undertaking as to damages and will resist any application for fortification, providing evidence if necessary. He contends that the Defendants have not shown any potential loss or damage arising from the injunction. [199] I accept that the Plaintiff has not voluntarily provided detailed evidence of his financial means. However, he has stated that he is able to meet the undertaking and will provide evidence if required. [200] More significantly, the Defendants have not identified any specific irreparable loss or damage to the 2nd Defendant's commercial operations that they would suffer as a result of the injunction. I reject the contention that the 2nd Defendant will be unable to sustain itself as a going concern, as the evidence suggests it is an investment holding vehicle. The 2nd Defendant will continue to receive the payments under the judicial management process. Those payments will be held by the 3rd Defendant pending determination of the proceedings. The Defendants are not being prevented from carrying on any active business or from meeting any immediate financial obligations of the 2nd Defendant itself. [201] The potential loss to the Defendants, if the injunction is wrongly granted, would be the loss of use of the funds and any consequential losses arising from delay in making payments that the 1st Defendant contends are necessary for the estate. [202] These losses would be calculable and compensable. They would primarily be in the nature of interest on the sums withheld and possibly increased liabilities to the estate's creditors. [203] Given that the Plaintiff was the major shareholder in Leadmont (which is paying the funds to the 2nd Defendant) and has had substantial business interests in property development, it is reasonable to infer that he has some financial means, even if his bankruptcy indicates past financial difficulties. [204] In the circumstances, I am prepared to accept the Plaintiff's undertaking as to damages. However, I make it clear that if the Defendants consider that fortification is necessary and can demonstrate specific potential losses, they may apply to court for an order requiring the Plaintiff to provide security for the undertaking. The present order will be subject to liberty to apply for such further directions. Conclusion on the Application [205] For all the reasons set out above, I am satisfied that the Plaintiff has made out a case for the grant of an interlocutory injunction. [206] There are serious issues to be tried regarding whether the Plaintiff is the beneficial owner of the shares in the 2nd Defendant and whether the 1st Defendant holds those shares as his nominee and trustee. There are serious issues regarding whether the 1st Defendant has breached fiduciary duties owed to the Plaintiff and/or to the 2nd Defendant. [207] Damages are not an adequate remedy given the ongoing risk of dissipation of substantial sums and the lack of transparency regarding how funds already received have been utilised. [208] The balance of convenience favours granting the injunction to preserve the status quo pending full determination at trial. [209] Whilst there are clean hands issues relating to the Plaintiff's delay, breach of the costs order, and incomplete disclosure, these are not so serious as to warrant refusal of all relief in circumstances where there is substantial evidence of past dissipation and ongoing risk. [210] The Plaintiff's undertaking as to damages is acceptable, subject to liberty to apply for fortification if the Defendants can demonstrate specific potential losses. [211] I am not persuaded that the doctrine of res judicata bars the present application, given that the previous suit was withdrawn with liberty to file afresh and the relief sought is materially different in that it seeks to restrain payment out by the stakeholder rather than payment into the stakeholder by the debtor.

[212] Accordingly, I make the following orders: a) Pending the full and final disposal of this action, the 1st Defendant, 2nd Defendant and/or 3rd Defendant, whether by themselves, their nominees, servants, agents, representatives or whomsoever, are restrained from: i) Paying out any monies in their possession received from Leadmont in respect of the balance post-dated cheques forwarded to the 2nd Defendant and/or the 3rd Defendant as follows: Cheque No. Date Amount (RM) RHB 000445 8.7.2025 l807,779.37 RHB 000446 8.10.2025 807,779.37 RHB 000447 8.1.2026 596,886.45 RHB 000448 8.4.2026 491,439.99 RHB 000449 8.7.2026 491,439.99 RHB 000450 8.10.2026 491,439.99 RHB 000451 8.1.2027 491,439.99 RHB 000452 8.4.2027 491,439.99 RHB 000453 8.7.2027 163,813.33 Total: 4,833,458.47 ii) Paying out the sum of RM5,512,530.94, or any part thereof, being monies received from Leadmont; and iii) Transferring, transmitting, or otherwise altering the registered shareholding of the 2nd Defendant pending full and final disposal of this action. b) The 1st Defendant and/or the 2nd Defendant shall file and serve an affidavit providing a full and detailed account of all payments made, transactions entered into, and the current balance of all monies held pertaining to the payments received from Leadmont, as at the date of filing of the said affidavit. c) The 1st Defendant and/or the 2nd Defendant shall file and serve the affidavit as required under paragraph 2 above on or before 6.10.2025. d) The parties are given liberty to apply to the Court for further orders and/or relief. e) Costs in the cause. [213] These orders are made upon the Plaintiff's usual undertaking as to damages, with liberty for the Defendants to apply for fortification if they can demonstrate specific potential losses arising from the grant of the injunction. [214] These orders are intended to preserve the status quo pending full trial of the action. They are not to be taken as any final determination of the substantive issues between the parties, which remain to be determined at trial on the basis of full evidence and argument. 8 December 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Mark Ho Hing Kheong (Messrs Chellam Wong) For the 1st Defendant: Lau Kee Sern (with Vynny Wong Poh Yee) (Messrs. Messrs Kee Sern, Siu & Huey) For the 2nd and 3rd Defendants: Brian Foong Mun Loong (with Herman Goh Hong Mun and Anson Chee Weng Kian) (Messrs Cheang & Ariff)