Yong Ah Huat & 1 Lagi v Toshiba Corporation (WA-24NCC(ARB)-22-05/2017)

YONG AH HUAT (No. K/P: 521030-05 -5197)

GLOBAL KIARA HOLDINGS SDN BHD … PLAINTIF- (No. Syarikat: 393758-T) PLAINTIF DAN TOSHIBA CORPORATION … DEFENDAN 2 GROUNDS OF DECISION Introduction [1] This is the Plaintiff’s application pursuant to ss.11 and 50 of the Arbitration Act 2005 (‘Arbitration Act 2005’) on the basis that the Defendant has not complied with certain dispute resolution clauses in bringing arbitration proceedings against each of the Plaintiffs. [2] The Originating Summons dated 22/5/2017(encl.1) was dismissed on 29/9/2017 after the Court had considered the written cum oral submissions of the parties. The Plaintiffs appealed. Herein set out below are the reasons for the said decision. Brief Facts [3] The relevant facts have been gleaned from the Plaintiffs’ Submission with some modifications are as follows. On 13/4/2017 the Defendant submitted 2 Requests for Arbitration to the International Chamber of Commerce International Court of arbitration (‘ICC’) (‘the Arbitration Proceedings’). Summarily, the Arbitration Proceedings both relate to the Defendant’s acquisition of 100% of the shareholding of Toshiba Transmission and Distribution Systems Asia Sdn Bhd (formerly known as TopRank Corporation SdnBhd) (‘TTDA’) from the Plaintiffs. [4] The Plaintiffs were previously shareholders of TTDA. The 1st Plaintiff held 75% of the shares in TTDA while the 2nd Plaintiff held the remaining 25% shares in TTDA. 3 [5] The Defendant entered into 2 separate agreements with the Plaintiffs respectively. First, the Share Sale Agreement dated 18/4/2011 with the 1st Plaintiff (‘the SSA’) for the purchase of the 1st Plaintiff’s shares in TTDA for a consideration of RM40 million (‘the Purchase Consideration’). Second, the Shareholders Agreement dated 7/6/2011 with the 2nd Plaintiff (‘the SHA’) to regulate and conduct their business affairs as shareholders in TTDA. [6] The dispute between the Parties results from and is in connection with the SSA and the SHA. The underlying basis for the claims and cross claims are as follows: [6.1] The 1st Plaintiff’s claim against the Defendant is for, inter alia, the release of part of the Purchase Consideration in the sum of RM6 million (‘Escrow Monies’), which has been deposited in an Escrow Account managed by HSBC Malaysia Berhad (‘HSBC’). According to the Plaintiff, under the terms of the SSA, the Escrow Monies were to be released to the 1st Plaintiff on or about 30/5/2013. [6.2 ] The Defendant’s claim against the Plaintiffs is for alleged breach of warranties and representations under the SSA and SHA respectively, on the recoverability of certain Receivables due to TTDA (‘the Receivables’) based on TTDA’s accounts as at 31/5/2010. The Defendant also alleged that the Receivables due to TTDA in the sum of RM3.3 million is ‘irrecoverable’, and is claiming for damages in the sum of RM26.8 million or alternatively the sum of RM3.3million. 4 The Plaintiffs’ Case [7] The1st Plaintiff claimed that various letters of demand were issued for the release of the Escrow Monies however the Defendant failed to comply with the 1st Plaintiff’s demands. [8] On 21/4/2017, the 1st Plaintiff gave written notice to the Defendant for an amicable discussion to be held within 14 days however, the Defendant failed to meet for the said discussion as required under clause 17.1 of the SSA. [9] The 1st and 2nd Plaintiffs also claimed that no letters of demand were issued by the Defendant seeking damages in the sum of RM26.8 million or RM3.3 million. As a matter of fact, no letters of demand were issued by the Defendant at all in respect of the disputes raised in the Requests for Arbitration dated 12/4/2017. [10] The Plaintiffs further argued that the Defendant had breached the pre-condition in clauses 17.1 and 14.1 of the SSA and SHA respectively (in failing to either issue the written notice calling for an amicable discussion), before referring the dispute to arbitration. [11] In support, the Plaintiffs referred to the case of Juara Serata Sdn Bhd v Alpharich Sdn Bhd [2015] 6 MLJ 773, whereby the approach to be taken by courts in multi-tiered dispute resolution clause has been settled by the Federal Court. In that case, the issue concerned a tiered dispute resolution clause which required parties to refer the dispute to the architect/consultant before a reference to arbitration. 5 [12] The Plaintiffs were also guided by the case of Usahasama SPNB-LTAT Sdn Bhd v. ABI Construction Sdn Bhd [2016] 7 CLJ 275, where Lee Swee Seng J decided that a reference to arbitration is invalid and premature if the preconditions to such reference have not been fulfilled. [13] Furthermore, the Plaintiffs claimed that it is undisputed that no written notice was issued by the Defendant pursuant to clause 17.1 of the SSA and clause 14.1 of the SHA calling for a meeting for an amicable discussion. Hence, since the precondition to arbitration has not been met, the Requests for Arbitration are premature and invalid. [14] The Plaintiffs also claimed that prior discussion cannot constitute notice pursuant to the Dispute Resolution Clauses. According to the Plaintiffs, the Defendant attempted to rely on historical correspondence and internal discussions within TTDA to divert attention from its clear and unequivocal breach of the Dispute Resolution Clauses. [15] The Plaintiffs then added that the historical correspondence and internal discussions were in respect of the management and affairs of TTDA when the 1st Plaintiff was the Managing Director and subsequently the Deputy Chairman. These discussions were not held pursuant to any written notice issued by the Defendant pursuant to the Dispute Resolution Clauses. [16] Moving on, the Plaintiffs also submitted that the prior discussions are completely unrelated to the amicable discussion contemplated under clauses 17.1 and 14.1. In this regard, the said Arbitrations concern the Defendant’s claim for RM26.8 million (or alternatively the sum of RM3.3 6 million) premised on the purported ‘irrecoverability’ of the Receivables due to TTDA. However, in all the prior discussions, there was never any mention of a potential claim of RM26.8 million by the Defendant. [17] Instead, those prior discussions were simply internal TTDA discussions to reconcile and verify the Receivables in the Accounts. This can be seen by the special audit undertaken to investigate the veracity of the Receivables. [18] The Plaintiffs also contended that none of these prior discussions involved the 2nd Plaintiff nor were there any indication of claim by the Defendant against the 2nd Plaintiff. [19] It is the Plaintiffs’ submission that the Defendant’s failure to issue a written notice calling for an amicable discussion prior to commencing the said Arbitrations and its continued refusal to comply with the precondition to arbitration cannot be countenanced. The Defendant’s Case [20] The Defendant claimed that the 1st Plaintiff has obstructed TTDA’s recovery of the full amount of the Receivables and has failed and/or refused to arrange for the repayment of the full amount of the Receivables to TTDA. Hence, the Plaintiffs had breached their representations and warranties under clauses 11.1.2(a) and 11.1.2(b) of the SSA and impliedly the same representations and warranties as those in the SSA in the SHA. The Plaintiffs’ breach of the said representations and warranties have resulted in substantial overpayment for the TTDA shares which the Defendant in the Arbitration Proceedings, inter alia, is seeking to recover from the Plaintiffs. 7 [21] The Defendant contended that the Plaintiffs had notice of the precise nature of the dispute between the parties and that the parties have been attempting to settle the dispute since 2012. [22] Furthermore, Clause 16 of the SSA (page 56 of the Plaintiff’s 1st Affidavit) and Clause 16 of the SHA (page 146 of the Plaintiff’s 1st Affidavit) provide that notices under those Agreements must be provided in a particular form, i.e. by hand, registered post, courier or other postal service or facsimile to certain specified addresses (‘Notice Provisions’). [23] However, according to the Defendant, the Notice Provisions have been rendered nugatory by the fact that the Plaintiffs have received actual notice of the dispute between the parties and the parties have in fact been attempting to resolve the dispute since 2012. [24] The Defendant submitted that the purpose of the Dispute Resolution Provisions (clause 17.1 SSA and clause 14.1 SHA) have been satisfied and there is no prejudice to the Plaintiffs. The Defendant claimed that it would be absurd for the Plaintiffs to insist on being given formal notice of matters which they are already well aware of, and which the parties have already attempted to settle. [25] Further, the Defendant claimed that the Plaintiffs’ own purported notice does not comply with the Notice Provisions as they have given notice under the Dispute Resolution Provisions without complying with the strict requirements of the said Notice Provisions. 8 [26] The Plaintiffs’ solicitors’ letter is only addressed to the Defendant’s solicitors and is not even copied to the relevant address for the Defendant stated in the Notice Provisions. Accordingly, the Defendant submitted that the Plaintiffs are estopped from insisting on the Defendant complying with the strict terms of the Notice Provisions. [27] The Defendant also claimed that there is no distinction between ‘reconciliation’ or ‘verification’ of the Receivables, and the question of recovering them. The Plaintiffs alleged that the correspondence and documents exhibited by the Defendant relate to discussions between the parties on ‘reconciliation’ or ‘verification’ of the Receivables to determine how much of the Receivables were recoverable. [28] The Defendant further supported their argument by submitting that the essence of their claim in the Arbitration Proceedings is that the Plaintiffs represented and warranted the value of the Receivables as stated in TTDA’s accounts at the relevant time. After the execution of the SSA, the 1st Plaintiff has caused the Receivables not to be paid to TTDA, thus reducing its value. [29] Further, the Defendant submitted that after years of attempting to resolve the issue, the Parties have been unable to reach an amicable settlement. Hence, any order made by the Court will delay the Arbitration Proceedings. [30] Moving on, the Defendants claimed that the Plaintiffs have sought to mislead the Court by failing to disclose the Critical Documents i.e. exhs.ES-3, ES-4, ES-5, ES-6, ES-7, ES-8, ES-9, ES-10 and ES-11 exhibited to the Defendant’s 1st Affidavit (encl.4) and thus attempting to 9 give the Court the misleading impression that they had no knowledge of the dispute between the Parties and that there had been no attempts to settle that dispute. [31] According to the Defendant, the Plaintiffs have acted inequitably and in breach of good faith in their conduct. As an example, the Plaintiffs’ attempt to mislead the Court is a cardinal example of inequitable conduct which is sufficient for the Court to refuse to grant the declaratory relief prayed for. [32] In support, the Defendant referred to the case of Armstrong v. Sheppard & Short Ltd. [1959] 2 QB 384 whereby in this case, the Plaintiff owned a strip of land upon which the defendants had entered and constructed a sewer. The Plaintiff claimed damages for trespass and an injunction to restrain the discharge of effluent through the sewer. In evidence the Plaintiff swore that he had never had any conversation with the defendants about the matter. The court of first instance found, among other things, that the Plaintiff had in fact orally informed the defendants that he did not object to the construction of the sewer. The Plaintiff was awarded damages for trespass but refused an injunction. He appealed. On appeal, the English Court of Appeal (per Lord Evershed) at p.397 held as follows: “The judge was here dealing with the claim as I have formulated it: and he came to the conclusion that the circumstances of this case were special, and, as his judgment shows, that the damage was trivial. For the latter statement he was supported by the Plaintiff himself, who said in evidence that he had suffered no inconvenience himself whatever from what had been done. But there were other good grounds, and formidable grounds (as I think) for refusing the plaintiff an injunction. That he misled the defendants is beyond a peradventure. It is no less clear that he attempted to mislead the court. He asserted – contrary to the fact – that he had never had any conversation with the defendants about the matter at all; and in his evidence in chief he so swore, untruly.It is not, therefore, at all surprising that the judge came to 10 the conclusion that he should grant no equitable relief; and in my judgment, on the facts of this case, he was well entitled to take that view”. (Emphasis is that of the Defendant) [33] In addition to that, the Defendant claimed that they would be irreparably prejudiced if the Application was to be granted. There is a real risk that the Defendant’s legitimate claim against the Plaintiffs would efficiently be extinguished. However, if the application is not granted, the Plaintiffs would have had the benefit of years of negotiation to attempt to resolve the dispute between the Parties, and will further have the benefit of the arbitration process to determine their rights and obligations under the SSA and SHA. Findings Issues [34] The issues to be determined by the Court and my answers to the said issues are -

Whether a clause for amicable discussion is mandatory? Is in the affirmative;

Whether a written notice was issued? Is in the affirmative;

If no written notice was issued, whether the issuance of a written notice is mandatory? Is not relevant; and

If a written notice was issued, whether there was compliance with clause 17.1 of SSA and 14.1 of SHA? Is in the affirmative. 11 Whether a clause for amicable discussion is mandatory? (1st issue) [35] The Dispute Resolution Provisions under the SSA and the SHA are clauses 17 and 14 respectively and they are identical. I shall refer to clause 17 of the SSA unless otherwise stated. Clause 17 of the SSA provides - “Clause 17 Dispute Resolution

17.1 In the event that there is a dispute [or] difference over any matter under this Agreement, including the termination of this Agreement, the Parties shall:

17.1.1 attempt to resolve the dispute [or] difference amicably with

days of either Party giving a notice calling for amicable discussion; and

17.1.2 in the event that amicable discussion fails, either Party may then refer the dispute or difference to arbitration under the International Chamber of Commerce Rules of Arbitration”. (Emphasis added) [36] Clause 16 of the SSA provides that “all notices shall be in writing and shall be hand delivered or sent by registered mail” to specified persons at a specified address. Clause16 of the SHA stipulates similar requirements except that it is wider in the sense that (i) a copy of the notice shall be provided to TTDA (‘Company’) in the SHA); and (ii) at the option of the sender, the notice “be sent” also by “courier or other postal service or facsimile.” [36.1] This means that the written notice to be issued to the 1st Plaintiff under clause 17.1 of the SSA is to his residential address and to the 2nd Plaintiff or TTDA under clause 14.1 of the SHA at their business address. 12 [37] A plain reading of the Dispute Resolution Provisions together with the Notice Provisions envisages Parties to resolve a dispute or a difference under the SSA and SHA in the following manner:

either party shall attempt to resolve the dispute or difference by calling for amicable discussion by giving a written notice to the specified persons at the specified address in accordance to the specified mode of service;

(ii) the amicable discussion must take place within 14 days of the issuance of the said written notice; and

(iii) if the amicable discussion fails then either party may refer the dispute or difference to arbitration. [38] Based on the following line of authorities, both local and other Commonwealth jurisdictions, it is discernible that the approach of the Courts is that multi-tiered dispute resolution clauses are to be upheld and adhered to.

In Juara Serata (supra) Raus Sharif PCA (now CJ), at 783[28], 785[33] and 785[36], inter alia, held - “[28] ... the parties are bound by the terms of the contract to follow the dispute resolution process under cll 16 and 17 of the agreement. ... ... [33] … cll 16 and 17 of the agreement provide for a two tier dispute resolution ie in the initial level, the dispute is to be referred to the architect/consultant, andthereafter to a sole arbitrator should there be no decision given by the architect/consultant within the stipulated time frame or if a party is aggrieved by the decision. … … [36] In the final analysis, we would go as far as to state that the defendant in this case is not in a position to resile from the terms inserted in the agreement which had imposed obligations on it. To allow 13 it to do so would be tantamount to allowing a party in breach to take advantage of its own wrong. Parties must be held to their bargain. ... The arbitral mechanism is contemplated by the cll 16 and 17 of the agreement to which parties were bound”. (Emphasis added)

In Usahasama’s case (supra) which adopted the same principle as in Juara Serata Sdn Bhd, Lee Swee Seng J at 283[19], inter alia, held - “[19] There is a discernible judicial trend in upholding preconditions or conditions precedent that parties have agreed before proceeding with the arbitration. The outcome of such a precondition might be a reference to "mediation" or "negotiations in good faith" ... or even different "escalating tiers of meetings" ... before arbitration is commenced. The rationale is not difficult to find. Arbitration has grown to be time-consuming and costly ... As such every incentive should be given especially where parties have bargained to explore other alternative means of dispute resolution before arbitration or litigation, that those alternative means should be exhaustively explored”.

In HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd [2012] 4 SLR 738, one of the issues concerned the validity of an express “good faith” term, part of a Rent Review Mechanism in the Lease Agreement between the appellant (landlord) and respondent (tenant). At 759[45], the Singapore Court of Appeal, inter alia, held - “It is important that the courts, as upholders of bargains, give practical effect to agreements entered into by commercial persons, rather than be quick in finding abstract difficulties. The choice made by contracting parties, especially when they are commercial entities, on how they want to resolve potential differences between them should be respected ...”. (per V K Rajah JA)

In Emirates Trading Agency LLC v Prime Mineral Exports Pte Ltd [2015] 1 WLR 1145, the applicant entered into a contract to purchase iron ore from another company. Clause 11 of the contract provided for dispute resolution and arbitration. By clause 11.1 “parties 14 shall first seek to resolve the dispute or claim by friendly discussion ... If no solution can be arrived at between the parties for a continuous period of four weeks then the non-defaulting party can invoke the arbitration clause and refer the dispute to arbitration”. Clause 11.2 provided that all disputes arising out of the contract “shall finally be resolved by arbitration”. The arbitrators determined they had substantive jurisdiction to determine the dispute under clause 11.2 as clause 11.1 was not an enforceable obligation and in any event the parties had complied with it. The applicant challenged the arbitrators’ award on jurisdiction on the basis that clause 11.1 was enforceable and imposed a condition precedent to the arbitrators’ substantive jurisdiction to hear and determine the dispute which had not been met. Teare J at p.1152 stated - “Clause 11 is a dispute resolution clause. It provides, first, that the parties shall seek to resolve a claim by friendly discussion. The use of the word “shall” indicates that the obligation is mandatory. ... ... I accept that the first part of clause 11.1 provides that before a party can refer a claim to arbitration there must be friendly discussions to resolve the claim. Such friendly discussions are a condition precedent to the right to refer a claim to arbitration. ...The clause therefore provides not only for friendly discussion to resolve a dispute but also for a period of time to elapse before which arbitration may be invoked. ... ... There is obvious commercial sense in such a dispute resolution clause. Arbitration can be expensive and time consuming. It is far better if it can be avoided by friendly discussions to resolve a claim. Thus the clause obliges the parties to seek to resolve a claim by friendly discussions before a claim can be referred to arbitration”. In finding that the contract was enforceable, at 1164[64] His Lordship held - 15 “Enforcement of such an agreement when found as part of a dispute resolution clause is in the public interest, first, because commercial men expect the court to enforce obligations that they have freely undertaken and, second, because the object of the agreement is to avoid what might otherwise be an expensive and time consuming arbitration”.

In United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177, United undertook a contract for Rail Corp. The contract contained a long and detailed dispute resolution clause, clause 35. Clause 35.11 provided that in certain circumstances representatives of the parties should “meet and undertake genuine and good faith negotiation with a view to resolving the dispute or difference”(at 210[15]). United asserted that the negotiation was void and that provision for arbitration could not be severed from it which meant that the disputes had to be resolved by litigation. The primary judge held that the provision for negotiation was valid and the provisions for arbitration severable. The NSW Court of Appeal on appeal by United had to determine, inter alia, on the question of severability, whether the primary judge’s conclusion that it was not the intention of the parties that disputes would be referred to arbitration (clause 35.12) only if the negotiations and mediation clauses were valid. In dismissing United’s appeal Allsop P JA held, inter alia, at 229[74] and [80] - “[74] ... If business people are prepared in the exercise of their commercial judgment to constrain themselves by reference to express words that are broad and general, but which have sensible and ascribable meaning, the task of the court is to give effect to, and not to impede, such solemn express contractual provisions. ... ... [80] The public policy in promoting efficient dispute resolution, especially commercial dispute resolution, requires that, where possible, real and enforceable content be given ... to encourage approaches by, and attitudes of, parties conducive to the resolution of disputes without expensive litigation, arbitral or curial”. 16 [38.1] I agreed with the observation made by the learned Defendant Counsel that in essence the dispute resolution clauses in the cases of Juara Serata, Usahasama and United Group Rail Services Ltd (supra) are more detailed and specific, e.g, it specified the period during which the dispute would have to arise and the need to first refer any dispute to a particular person whereas in the present case the Dispute Resolution Provisions are in very general terms, more akin to the dispute resolution clause in Emirates Trading Agency LLC’s case (supra).However having regard to the principles propounded in Juara Serata and similarly echoed in all the cases referred to above, I find the common thread that runs through the cases is, irrespective of the manner the dispute resolution clauses are couched, the Parties are bound to adhere to what they have bargained for and are to fulfil the preconditions before they proceed to arbitration. [39] In the result I find clause 17 SSA and clause 14 SHA which provide for amicable discussion is mandatory; in other words, amicable discussion is a condition precedent to the right to refer the dispute or difference to arbitration. Whether a written notice was issued? (2nd issue) [40] With respect I disagreed with the Plaintiffs’ contention that there was no written notice issued by the Defendant pursuant to clauses 17.1 or 14.1 of SSA and SHA respectively calling for a meeting for an amicable discussion; that the Requests for Arbitration are premature and invalid since the precondition to arbitration has not been met; and the Court ought to grant the prayers sought by the Plaintiff to prevent 17 the Defendant from resiling from the bargain they entered into (see paras 10 and 13 above). [41] During oral submission, learned Counsel for the Plaintiff, Mr. Alvin Tang informed the Court that the Plaintiffs are “not taking the position that [the written Notice] has to be sent to a specific address or have specific particulars. All that is required is for the Notice to say “I’m going to launch proceedings and giving notice to discuss.” I find this concession is in accord with clause 16.6.1 of the SHA which reads “The rights of either Shareholder shall not be prejudiced or restricted by any indulgence or forbearance extended to the other Shareholder …”. [42] The diametrically opposing positions held by the Parties calls for a deliberation of the applicable legal principles in construing a provision which requires notice to be given in a specified manner.

Newbold and others v Coal Authority [2014] 1 WLR 1288, the Newbolds, 3 brothers (claimants) sought compensation for costs of remedial works to their property against the Coal Authority (defendant) where the damage was said to result from the mining carried out in the area of the property. The English Court of Appeal considered whether certain allegedly defective notices issued under the English Coal Mining Subsidence Act 1991 were valid. The defendant alleged, among others , that the notices in question were invalid because they failed to comply with the strict requirements of the relevant statutory provisions. The Court (per Sir Stanley Burnton) at 1309 [70] held - “70 I do not consider that there is any such conflict. In all cases, one must first construe the statutory or contractual requirement in question. It may require strict compliance with a requirement as a condition of its validity. In the Mannai-case [1997] AC 749, 776B Lord Hoffmann gave the example of the lease requiring notice to be given on blue paper: a notice given on pink paper would be ineffective. Against that, on its true construction a statutory 18 requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial result”. (Emphasis added)

Hoe International Limited Pursuer and Reclaimer against (First) Martha Goodnow Andersen (Second) Sir James Alexander Frederic Aykroyd Defenders and Respondents [2017] CSIH 9, where the parties entered into the contract for the sale of the entire share capital in a distillery company. The contract of sale contained certain warranties from the sellers to the purchaser. The purchaser issued a notice to the sellers alleging, among others, breach of those warranties. The sellers argued, among other things, that the notice did not comply with the applicable contractual notice provisions because they failed to include reasonable details of all material aspects of the claim being made including an estimate of loss, which were expressly required by the contract. The Inner House of the Scottish Court of Session in Hoe International Limited (supra) approved of the approach in Newbold’s case (quoted in para 42(a) above) and stated “A sensible, commercial result should be reached: ibid. We would endorse that general approach.” ([para 44]). The Court held that the notice in question was sufficient and among others, that when construing notice provisions, the Court must determine -

whether strict compliance is required: “Regard must be had to the terms of the relevant clause, which must be construed in the context of the document where it is found and in the general 19 contractual context where the parties are operating; the requirement must be given a purposive construction; and where appropriate commercial common sense should be applied”. (para 33);

(ii) what the purpose of the provision is: “In general, it may be said that the more drastic the consequences of a notice, the greater the need for strict compliance with what is prescribed in the contract. Thus a notice may bring about a fundamental alteration in the parties’ legal relationship, as with a break clause in a lease, which brings the contract to an end, or an option to purchase.Notice of revocation of a contract also has major consequences, as (if well founded) it relieves the parties of future performance. Notice invoking the right of retention is a lesser remedy, as it does not purport to do more than suspend future performance. A range of less drastic notices are found: for example, a notice submitting a dispute to arbitration or adjudication. In the present case the notice in dispute is intimation of a pending claim by a third party. That can be regarded as an issue that is at the lower end of importance. The actual dispute is likely to be disposed of by litigation or arbitration, and the purpose of giving prior notice is to permit the defenders to decide whether they want to defend any claim made by Chambers against Speyside. For present purposes, we think it significant that the consequences of the notice in question fall at the less drastic end of the scale, with the result that there is no overwhelming argument in favour of rigid formality”. (para 34);

(iii) “The fundamental question is perhaps: if a particular formal requirement is not complied with, is the would-be recipient prejudiced, in a practical sense? If there is in fact no prejudice, the court should in our opinion be slow to hold that failure to comply with a formal requirement is fatal. That is so even in cases where the purpose of the notice is drastic, as with a notice invoking a break clause or an option to purchase. If there is no prejudice, insisting on strict compliance for its own sake serves no useful purpose”. (para 35). (per Lord Drummond Young) (Emphasis added)

T&L Sugars Limited v. Tate & Lyle Industries Limited [2014] EWHC 1066 (Comm), the defendant sold its sugar business to the claimant under a share and business sale agreement (SBSA). The claimant brought a claim against the defendant for breach of the SBSA in relation to, among others, the sugar futures contracts held in the 20 defendant’s hedging books (which the Court referred to as the ‘Futures Claim’). The SBSA provided, among others, that the plaintiff was required to issue a notice of any potential claim under the agreement, and that the notice would become invalid unless legal proceedings in respect of the relevant claim were issued and served within 12 months of the notice. One of the questions for the Court to determine was whether the Futures Claim would be properly commenced if the notice was later found as a matter of fact to be non-compliant because it failed to specify the factual and legal basis of the claim. The defendant contended that the notice provisions had to be strictly complied with. The plaintiff contended that the result of this construction would be uncommercial because as a matter of fact the defendant had already been given notice of the Futures Claim. The English High Court after considering the defendant’s and the claimant’s arguments at paras 45 to 47 observed, among others,- “Mr Mill’s position is that this approach [para 45] is not only uncommercial but gives rise to an arid dispute. Even if the notice of 30 March 2012 was technically defective because it failed to give sufficient detail of the Futures Claim, that defect has been cured by the service of the Particulars of Claim which does give a full and detailed explanation of the Futures Claim to which the Defendant has pleaded in response in the Defence and Counterclaim. Indeed, as Mr Mill points out, the pleadings are now closed. In my judgment, this is indeed an arid dispute and the fallacy in the Defendant’s argument is that, as Mr Nicholls accepts, the purpose of cl 11.3 is to bring to the attention of the Defendant the existence of a Warranty Claim or other Claim within the twelve month limit after the original notice. The achievement of that purpose does not require that the notice given on 30 March 2012 be in some way fully compliant in every detail, nor is there anything in the wording of cl 11.3 which requires that the notice be fully compliant before that clause operates”. (per Flaux J at paras 45 & 46).

Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 where the 21 Federal Court adopted the commercial and practical approach in construing contracts. In this case the respondent (a private limited company) wanted to purchase a commercial shop lot in the project developed by the appellant (a property developer) entered into an agreement for the said purchase. The appellant did not make delivery within the stipulated time. The respondent commenced proceedings claiming, inter alia, a declaration that the agreement had been rescinded and for an order that the appellant refund the monies in its hands and for damages. At 607 [10], the Federal Court applied the following passage from the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 (per Lord Steyn at p.771) - “In determining the meaning of the language of a commercial contract, and unilateral contractual notices, the law therefore generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language. In contradistinction to this modern approach, Lord Greene MR's judgment in Hankey v Clavering [1942] 2 KB 326 is rigid and formalistic”. (Emphasis added) [43] Applying the aforesaid principles to the facts of this case, the following are my findings:

The purpose of the notice in the Dispute Resolution Provisions is to make the parties aware of the dispute between them and to attempt to resolve such dispute amicably within 14 days of the issuance of the notice. The Plaintiffs have had actual knowledge of the relevant dispute from as early as 2012 as is evident from the correspondences and 22 meetings which I shall address below and have been attempting to resolve the dispute between them for several years. There is no implied requirement to state the details of the dispute to make the notification provision work as the Parties are well aware of the details of the dispute between them and have attempted to settle the dispute. This will become apparent later. I draw support from the case of GB Gas Holdings Limited v. Accenture (UK) Limited &Ors [2010] EWCA 912, where the English Court of Appeal had to consider whether certain information ( the sub-questions appear at para 60 of the Report) ought to have been included in a notice provision. Longmore LJ at para 61 opined- “The judge answered each of these sub-questions in the negative. There is no express requirement in the provision for notification for any of these matters to be notified. It would not be right to imply any such requirement since no such implication is necessary to make the notification provision work. Indeed it would be surprising if the parties had impliedly agreed that a mini-pleading was effectively required as a condition for the existence of a claim”. Range of importance of the Notice Provisions

In Hoe’s case (referred at para 42(b)(ii) above), the Court held a notice submitting a dispute to arbitration or adjudication falls within a range of less drastic notices. In the present case, where the notice requirement is a precursor to referring the dispute to arbitration in the event the amicable discussion fails, I am of the view that the Notice Provisions fall at the lower end of the range of importance following the categorisation in the persuasive authority of Hoe’s case. Prejudice caused to the Plaintiffs?

It is noteworthy that neither the Dispute Resolution Provisions or the Notice Provisions required the Parties to give notice of the precise areas of dispute between them or for the Defendant to state the basis for 23 its loss. However the Plaintiffs are aware of the elements of the dispute between the Parties as is evident from the correspondences and meetings captured in the tabulation, Appendix A annexed to the Defendant’s Written Submission and the basis for its loss as a result of the misrepresentation and breach of warranty i.e. the amount by which the Defendant overpaid for the TTDA shares in item 10 of Appendix A. Hence I find there is no prejudice caused to the Plaintiffs. Like in T&L Sugars (supra), in my considered view the Plaintiffs in the present case have been given actual notice of the dispute between the Parties, albeit not by way of strict compliance with the Notice Provisions which can be accounted for. In T&L Sugars there is no issue of limitation if the claim was required to be re-filed. However in the present case, given that the subject matter of these proceedings relate primarily to the SSA dated 18/4/2012, it is arguable that limitation of the Defendant’s claim against Plaintiffs will expire on 18/4/2017. It follows that if the Arbitration Proceedings are withdrawn (prayers 3 and 4 of the Defendant’s application) there is a real risk that the Defendant will be time barred if the Arbitration Proceedings from re-instituting the Arbitration Proceedings. Herein lies the prejudice. The Plaintiffs argued that the delayed filing of the Arbitration Proceedings (22/5/2017) was self inflicted and they had to bear the consequences given that discussions between the Parties were between 2012 and 2015. In this regard in my judgment the Plaintiffs’ argument bears no merit as I adopted the approach of the Court in Hoe’s case given a no prejudice scenario alluded to in para 42(b)(iii) above. [44] It is my respectful view that anyone of the e-mails or minutes of meetings which I will address later amounted to a notice of the dispute between the parties. This is a sensible and commercial result arrived at 24 in construing the Notice Provisions after giving due regard to the terms of the Notice Provisions in the context of the Dispute Resolution Provisions and all the relevant correspondences and meetings. (See Newbold, Hoe, T&L Sugars and Berjaya Times Squares (supra)). Estoppel & approbation and reprobation [45] The concession rendered by the Plaintiff solicitor with regard to the Notice Provisions (see para 41 above) showed that there is shared and common understanding between the Parties that strict compliance with the Notice Provisions was unnecessary. I observed the Plaintiffs’ solicitors’ letter dated 21/4/2017 (exh.YAH-11, Plaintiff’s 1st Affidavit affirmed by 1st Plaintiff on 22/5/2017) which the Plaintiffs claimed is notice under the Dispute Resolution Provisions runs counter to the express wording of the Notice Provisions. Yet surprisingly, in para 7 of Plaintiffs’ 3rd Affidavit affirmed by 1st Plaintiff on 12/7/2017, the Plaintiffs deposed the said letter as- “Further, I state that the facts relating to the Escrow Account and/or Escrow Monies are necessary to give a complete picture as to the chronology of the disputes between the parties, which culminated in the Plaintiffs’ written notice dated 21/4/2017 to the Defendant (calling for an amicable discussion) as required under the SSA and SHA, which the Defendant refused to comply with [see Exhibit YAH-11 of the Plaintiffs’ 1st Affidavit]”. (Emphasis added) [45.1] There is no strict compliance of the Notice Provisions because the Plaintiffs’ solicitors’ letter dated 21/4/2017 is only addressed to the Defendant’s solicitors and is not even copied to the relevant address for the Defendant stated in the Notice Provisions. [45.2] Hence in my judgment by conduct the Plaintiffs are estopped from insisting in the Defendant complying with the strict terms of the Notice Provisions when they themselves by conduct refused to comply with the 25 strict terms of the Notice Provisions. Several authorities which are applicable are -

Spencer Bower on The Law Relating to Estoppel by Representation (Fourth Edition)p.180 where the learned author states among others- “An estoppel by convention, it is submitted, is anestoppelby representation of fact, a promissory estoppel or a proprietary estoppel, in which the relevant proposition is established, not by representation or promise by one party to another, but by mutual, express or implicit, assent”; (Emphasis added)

(ii) Chase Perdana Berhad v Md Afendi bin Hamdan [2008] MLJU 294 (CA) (per Gopal Sri Ram) - “If parties to a contract which is subject to a contingent condition (which is the case in the present appeal) conduct themselves towards each other in such a way as to show that the condition is not to matter, then, neither can at a later stage seek to rely or insist upon such a condition”; (Emphasis added)

(iii) Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331where at p.345 H, the Federal Court approved the following passage from Lord Denning’s speech in Amalgamated Investment & Property Co. Ltd. v. John Walker & Sons Ltd. [1977] 1 WLR 164 - “When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands”. (per Gopal Sri Ram JCA(as he then was) (Emphasis added)

(iv) PB Securities Sdn Bhd v Autoways Holding Bhd [2000] 4 MLJ 417 at p.425 H-I to p.426 A-C where the Court of Appeal held, among others - 26 “Approbation and reprobation. On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile; and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent”. (per Shaik Daud JCA) (as he then was) (Emphasis added) If a written notice was issued, whether there was compliance with clause 17.1 of SSA and clause 14.1 of SHA? (4th issue) [46] The Plaintiffs argued that substantial correspondence and minutes of meeting between the Parties is incapable of amounting to notice under the Dispute Resolution Provisions basically on 3 grounds which I will deal accordingly. [47] The 1st ground is that the Dispute Resolution Provisions and Notice Provisions are mandatory and require that the notice be clear in its intention and purport citing -

Total Future v. Government of Malaysia & Ors. [2013] 9 MLJ 288 at p.297[13] - “What is even clearer is that the pre-conditions stated in 2.37.3 on the requirement to give notices and the timelines to do so as stated in the said clauses are also mandatory to the dispute resolution of the parties herein, whether arbitration or litigation is ultimately pursued. ... it is obvious that the parties have intended for these pre conditions as a precursor to the resolution of their dispute whether it be by arbitration or litigation and I could only give effect to it as they have so agreed”. (Emphasis is that of the Plaintiffs)

(ii) Delta Enterprises Sdn Bhd & Ors. v. Asia Commercial Finance

(M) Bhd & Anor [2005] 1 CLJ 501 at p.507 f-h where the Court of Appeal held - 27 “The word 'shall' appearing in the section clearly supports that section 8.01 is mandatory in its terms. ... Thus, strict compliance with its provision is called for as the parties themselves had agreed to the terms which were then embodied into the Loan Agreement”.

(iii) DSL Development Corp Sdn Bhd v Kampung Kita Sdn Bhd [2014] 11 MLJ 935 at p.950[40] where Mary Lim J (now JCA) held - “In any case, a notice of 60 days is a precondition to the exercise of such a right of termination. That period was not given. The defendant has referred to earlier notices. ... The court cannot treat any of the two earlier letters mentioned above as being within the meaning or serving the purpose of a notice. ... A notice under cl 25.1 must be clear in its intention and purport”. [47.1] I have touched on the cases of Juara Serata, Usahama, HSBC Institutional Trust Services (Singapore) Ltd, Emirates, United Group Rail Services in paras 38 and 38.1 above. From a perusal of these cases I concluded that clauses 17 and 14 of the SSA and SHA respectively which provide for amicable discussion is mandatory. [47.2] In Emirates Trading Agency LLC’s case, the question arose whether on the facts of the case, there were friendly discussions between the applicant and PMEPL in good faith to resolve the latter’s claim. The applicant’s counsel submitted that PMEPL had not served notice of its desire to enter into friendly discussions under clause 11.1. At 1165[67] and [68] the English High Court observed and, among others, stated - “67. In my judgment the discussions on 1 and 2 December 2009 (which it is common ground were friendly) were discussions in which the parties sought to resolve PMEPL’s claim for US$45 million. …

The giving of a notice to enter into friendly discussions was not a mandatory requirement. If notice to resolve the dispute by friendly discussions was a mandatory requirement sufficient notice must have been given in circumstances where the parties had assembled in Goa to discuss the issues between the parties, the notice of termination had been given and the parties continued to discuss the issues between the parties. If cl 28 22 of the LTC required a written notice such requirement (in the circumstances just described) must have been waived”. (Emphasis added) [47.3] It is essential to observe how the notice provision in a dispute resolution clause is worded. In Emirates Trading Agency LLC’s case, the notice provision in clause 11.1 of the contract reads “Any party may notify the other party of its desire to enter into consultation to resolve a dispute or claim.” It is noteworthy despite the fact that the dispute resolution provision states “parties shall first seek to resolve the dispute or claim by friendly discussion”, the English High Court held

the giving of notice was not mandatory as “ the use of the word “may”, in distinction from the word” shall” in the first part of clause, indicates that this was not mandatory obligation.” and even if it was, that actual compliance with the dispute resolution provision was sufficient (see para 47.2 above). [47.4] Notwithstanding the usage of the word “shall” in the notice provisions found in the case of Total Future (supra) and the present case, in my considered view, the emphasis of what is mandatory in the former case and the present case differs. In the former case, as stated by Rhodzariah Bujang J (now JCA) at 297[13], “[T]he pre-conditions stated in [clause] 2.37.3 on the requirement to give notices and the timelines to do so stated in the said clauses are also mandatory to the dispute resolution of the parties herein, whether arbitration or litigation is ultimately pursued.” Whilst in the present case the emphasis is that amicable discussion is a condition precedent to the right to refer the dispute or difference to arbitration which is facilitated by the issuance of the written notice ( see paras 36, 36.1 and 37 above). [47.5] Delta Enterprises Sdn Bhd (supra) can be distinguished as it does not concern the question of whether actual compliance with a 29 notice to amicably settle a dispute was sufficient and even if it construed that the written notice in the present case is a condition precedent, it is my respectful view that that actual compliance with the dispute resolution provision was sufficient as adopted in Emirates Trading Agency LLC’s case.

47.6 The case of DSL Development Corp Sdn Bhd (supra) can likewise be distinguished as the notice provision was concerning a notice to terminate which required a notice to be given for the party receiving the notice to remedy the default within 60 days of the notice. [48] The 2nd ground is the correspondences and minutes of meeting (the Plaintiffs referred as “prior discussions”) between the Parties cannot amount to adequate notice as they are unrelated to the disputes under the Arbitration Proceedings but concerned matters mentioned above in paras 15 and 17 (internal TTDA discussions), para 16 (no mention of Defendant’s potential claim of RM 26.8 million/3.3 million) With respect I find the following documents contradicted or negated the Plaintiffs’ arguments which in my judgment bear no merit: [48.1] Exh.ES-6, email of 30/7/2014 at 3pm from the Defendant’s Mr. Sato to the 1st Plaintiff. In this email, Mr Sato wrote “In our point of view, if you pursue these new findings, whether it is true or not, it would be in breach of your representations and warranties under SSA.” It is to be noted that the Plaintiffs have not challenged Mr. Sato’s authority to represent the Defendant and that the discussion could not have related to the internal matters of TTDA as the SSA was between the 1st Plaintiff and the Defendant and the representations and warranties referred to those given by the 1st Plaintiff to the Defendant which is the dispute in the Arbitration proceedings. 30 [48.2] Exh.ES-7, e-mail of 10/11/2014 at 7.20pm from the 1st Plaintiff to Mr. Sato. In this email the 1st Plaintiff wrote “You had mentioned in your earlier email that we have made a breach of representation and we are to warrant this debts which we would totally disagree”. It is evident the representations and warranties which the 1st Plaintiff were referring to were those which he owed to the Defendant, not to TTDA and therefore could not be related to the internal matters of TTDA. [48.3] Exh.ES-8, e-mail of 19/11/2014 at 12.43pm from Mr. Sato to the 1st Plaintiff. In this email the Mr Sato wrote “After SSA contract, if you try to deduct the expenses from the net receivable which set out in SSA, we believe it would be in breach of representation and warranties. Anyway we think the important thing is both parties will try to make best effort to solve this issue as good business partner”. Mr. Sato’s reference to the breach of the representations and warranties relates to those under the SHA, thus could not be related to the internal matters of TTDA. In the same email, Mr. Sato sets out the “Result of the meeting between TSB [Defendant] and GKH [2nd Plaintiff] in 22 Feb 2017”. Under the heading “Toshiba comments”, Mr. Sato wrote “Basically acquisition price was agreed after confirmation of annexed financial data in SSA by both parties. Therefore GKH guarantee all financial data in SSA is genuine” (Emphasis added). As this email referred to both the Defendant and the 2nd Plaintiff, the acquisition price of TTDA under the SSA and the guarantees given by GKH (which is pursuant to the SHA), I find this email (exh.ES-8) and the discussions of 22/2/2012 cannot be related to the internal matters of TTDA. 31 [48.4] Exh.ES-9, minutes of meetings on 18/6/2015 and 19/6/2015 (‘Minutes’). It is evident from the following entries that the meeting could not have been related to the internal matters of TTDA.

1st page of the Minutes, against item 1 (‘Highlight from Past Meetings’) under ‘Toshiba’s recollection” the following is recorded: “3) Toshiba’s recollection: a) Basically acquisition price agreed after confirmation of annexed financial data in SSA by both parties. ... d) In the event Mr Yong pursues his intent to deduct the expenses from the inter companies’ net receivable, Mr Yong would be in breach [of] his representation and warranties under Clause 11 of SSA. Therefore pursuant to Clause 13.1(a) Mr Yong would be liable for losses incurred by TTDA”. (Emphasis added)

(ii) 2nd page of the Minutes, against item 2 (‘Mr. Yong’s Point of View’) the following is recorded: “9) Mr Yong commented on item 1.3(d) that the inter companies’ net receivable is in the book of TTDA, Mr Yong does not think that he is in breach of his representation and warranties under Clause 11 of SSA”. (Emphasis added)

(iii) 2nd page of the Minutes, against item 3 (‘Toshiba’s Point of View: (Mr. Sato and Mr. Mogi)’) the following is recorded: “1) TTDA’s value is depreciated if debt not collected ... The inter companies transaction is not normal receivable if TTDA cannot collect the net receivable and this will affect the net acquisition price of TTDA”. (Emphasis added) It is significant to observe that the Minutes end with the statement “Both parties look forward to settle this issue in amicable way”; was signed by the 1st Plaintiff and the Defendant and a soft copy was sent to the 1st Plaintiff (to an email address of the 2nd Plaintiff at ah.yong@globalkiara.com) and jasmine.yong@globalkiara.com by one 32 Tan Swee Peng via email of 19/6/2015 (exh.ES-10). This showed that the discussion recorded in the Minutes did not relate to TTDA’s internal affairs and also related to the 2nd Plaintiff (in relation to the SHA between the 2nd Plaintiff and the Defendant). [48.5] As to the Plaintiffs’ contention that the relevant correspondence and Minutes do not refer to the estimated value of the Defendant’s claim for RM26.8 million (alternatively for RM3.3 million), I find it to be misconceived for these reasons.

As the Dispute Resolution Provisions do not specify that a notice must contain a valuation of the claim or dispute, there is no obligation on the Defendant to give the Plaintiffs notice of this as was held in GB Gas Holdings Limited (supra) which I have alluded in para 43(a) above.

In any event the Plaintiffs own purported notice to the Defendant, exh.YAH-11 does not specify any value of the alleged dispute. It can be reasonably inferred that even the Plaintiffs themselves see there is no force in such argument. [48.6] As to the Plaintiffs’ contention that the correspondences and minutes of meeting related to the ‘reconciliation’ and ‘verification’ of the Receivables rather than the ‘recoverability’ of the Receivables, I find it to be misconceived for these reasons.

Item 3 of the Minutes states - “1) TTDA’s value is depreciated if debt not collected. Originally Mr. Yong recognised the adjustment on inter companies transaction has been existing for many years. The inter companies transaction is not normal receivable if TTDA cannot collect the net receivable and this will affect the net acquisition price of TTDA”. (Emphasis added) 33 The above minute in essence encapsulates the basis of the dispute in the Arbitration Proceedings, i.e. as a result of the misrepresentation and breach of warranty as to the recoverability of the Receivables, the Defendant has suffered loss with respect to the net acquisition price of TTDA. This Minutes recorded meetings between the Parties in 2015, more than a year before the commencement of the Arbitration Proceedings; hence the Parties had notice of and were attempting to settle the dispute.

Further, the Defendants in para 24 of the Defendant’s 2nd Affidavit affirmed by Mr. Eisuke Shoda on 30/6/2017 categorically informed the Plaintiffs of - “(i) Any reduction in the value of the Receivables would amount to a misrepresentation and breach of warranty.

(ii) Regardless of any findings as to the genuineness or otherwise of any underlying transaction, if the Receivables were not recoverable this would cause loss to the Defendant”.

By the Plaintiffs own evidence that “It is only once the reconciliation exercise was done that the parties can look to the recoverability of the Receivables …”, i.e. first, to settle the “reconciliation exercise” and second, “to look to the recoverability of the Receivables”, it is obvious the Parties have had notice of the dispute under the Arbitration Proceedings and going by the Plaintiffs’ interpretation, have been unable to overcome even the preliminary hurdle of ‘reconciliation’. [48.7] The Plaintiffs relied on International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2014] 1 SLR 130 as authority for the proposition that “some prior meetings discussing some of the matters in the arbitration” is insufficient to amount to compliance with a multi-tiered arbitration agreement. I agreed with the 34 Defendant that International Research Corp PLC (supra) does not aid the Plaintiffs for the following reasons:

Unlike the Dispute Resolution Provisions in the present case which is more general in nature, in International Research Corp PLC, the dispute resolution provision (at 136[7] of the Judgment), required any dispute to be referred first to a committee consisting of specific individuals, next another committee consisting of other specified individuals before a further committee of specified individuals and then only to arbitration.

The Singapore Court of Appeal observed the parties did not comply with the express specified process, i.e. “the personnel who attended the meetings revealed the precise persons required to be involved [were] were no so involved” (at 158 [57] of the Judgment).

The Court further observed “[I]t was not altogether clear just what had been discussed at these meetings.” (at 160[61] of the Judgment).

The Court in distinguishing Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303 drew a distinction between actual compliance and substantial compliance (at 160 [61] of the Judgment) - “First, cl.33.1 in Halifax Financial was in much more general terms than cl 37.2 of the Cooperation Agreement in the present case. There is none of the specificity that is inherent in the latter, which envisages, with precision, an escalation of a dispute by way of progressively higher ranks of the Respondent’s management meeting with their designated counterparts from the other side in an endeavour to reach a resolution. ... In fact, Halifax Financial appears to have been decided on the basis that there had been actual compliance with cl 33.1, the only drawback being that the meetings between the parties had not been labelled as having been held pursuant to that clause”. Hence it against the backdrop of the factors above, that the Singapore Court of Appeal drew a distinction between actual and substantial 35 compliance and at 160[62] held that “In the case before us, it could not be said that the parties intended that some meetings between some people in their respective organisations discussing some variety of matters would be sufficient to constitute compliance with the preconditions for arbitration” (the Court’s emphasis). [48.8] I agreed with the Defendant’s submission that the Dispute Resolution Provisions are somewhat similar to the dispute resolution provision in Halifax (supra) (at 305) in that it is expressed in general terms, requires a written notice of a dispute form one party to the other and an attempt to amicably resolve before commencing legal proceedings. I also agreed with the Defendant’s submission that the approach in Halifax is consistent with the approach in Newbold, Hoe, T&L Sugars, GB Gas holdings and Berjaya Times Squares which is to recognise the commercial and practical realities in cases where the parties have actual notice of a dispute and have attempted to amicably resolve their dispute. Hence I am inclined to adopt the approach in Halifax and find that the Defendant has actually complied with the Dispute Resolution provisions. [49] The 3rd ground is none of the correspondences and minutes of meeting (the Plaintiffs referred as “prior discussions”) between the Parties involved the 2nd Plaintiff. With respect, I find the 3rd ground is baseless as it is negated by the following documents:

Exh.ES-8 alluded to in para 48.3 above reveals that there was a meeting between the 2nd Plaintiff and the Defendant on 22/2/2012 and the Defendant’s position appears under “Toshiba comments”: the said email refers to the Defendant and the 2nd Plaintiff and the acquisition price of TTDA under the SSA and the guarantees given by GKH; the 36 representations and guarantees can only be pursuant to the SHA. The Plaintiffs have not denied the meeting of 22/2/2012 and the Plaintiffs’ contention is but an afterthought.

Exh.ES-12, the corporate information of the 2nd Plaintiff shows that the 1st Plaintiff has been the director of the 2nd Plaintiff (date of appointment of 11/2/2011) throughout the period of negotiations to amicably settle the dispute under the Arbitration Proceedings, including at the time of the email, exh.ES-8 dated 19/11/2014.

Exh.ES-10 which I have alluded in para 48.4 above: Minutes were sent to the 1st Plaintiff’s email address with the 2nd Plaintiff (ah.yong@globalkiara.com) shows that the 1st Plaintiff participated in discussions to resolve the dispute in his individual capacity and as director of the 2nd Plaintiff. This is consistent with the commercial transaction of the 1st Plaintiff to sell by himself and through the 2nd Plaintiff 100% of the shares in TTDA to the Defendant for a particular price based on the representations and warranties as to the accounts of TTDA. Conclusion [50] For all the foregoing reasons, I dismissed the Plaintiffs’ application with costs of RM30,000.00 to be paid by the Plaintiffs to the Defendant. Dated: 22/1/2018 SGD. (LAU BEE LAN) Judge 37 Counsel for the Plaintiffs: Encik Alvin Tang together with Encik Jimmy Chong and Encik Ryan Ng Messrs Ranjit Ooi & Robert Low Advocates & Solicitors No.53, Jalan Maarof Bangsar 59000 Kuala Lumpur Counsel for the Defendant: Encik Rabindra Nathan together with Encik Nad Segaram and Encik Vinayak Sri Ram Messrs Shearn Delamore & Co Advocates & Solicitors 7thFloor, Wisma Hamzah-Kwong Hing No.1, Leboh Ampang 50100 Kuala Lumpur