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24NCC-189-06/2013 Kand. 316 23/02/2026 11:56:44 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO. 24NCC-189-06/2013 In the matter of Ebony Ritz Sdn Bhd And In the matter of section 181 of the Companies Act 1965 And In the matter of Orders 7, 11, and 88 of the Rules of Court 2012 BETWEEN AUSPICIOUS JOURNEY SDN BHD (Company No. 870157-W) … PLAINTIFF AND 1. EBONY RITZ SDN BHD (Company No. 892852-T) 2. HOE LEONG CORPORATION LTD (Singapore Company Registration No. 199408433W) 3. KUAH GEOK KHIM (Singapore I/C No. S01234939-D) 4. KUAH GEOK LIN (Singapore I/C No. S0116940H) 5. QUAH YOKE HWEE (Singapore I/C No. S009296F) 6. BOO SONG HENG PETER 1 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal (Singapore I/C No. S0164974D) 7. ANG SIEW KOON (Singapore I/C No. S1721860C) 8. ANG MONG SENG (Singapore I/C No. S2017699G) 9. LIM KOK HOONG (Singapore I/C No. S2549030D) 10. SETINGGI HOLDINGS LTD 11. TEH TEONG LAY (I/C No. 730904-07-5457) … DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] Before the Court is the assessment of damages arising from proceedings under section 181 of the Companies Act 1965 (“the Act”). On 3.8.2016, the High Court declared that the 2nd Defendant, Hoe Leong Corporation Ltd (“Hoe Leong”), had conducted the affairs of the 1st Defendant, Ebony Ritz Sdn Bhd (“Ebony Ritz”), in a manner oppressive to and in disregard of the interests of the Plaintiff, Auspicious Journey Sdn Bhd (“Auspicious Journey”), as a minority shareholder. The High Court further ordered, amongst other things, the winding up of Ebony Ritz and that general damages be assessed, if any, suffered by Auspicious Journey by reason of the oppression. These findings and the order were affirmed by the Court of Appeal on 21.5.2018 and the Federal Court on 9.3.2021. Neither the finding of oppression nor the liability of Hoe Leong is in issue before this Court. The sole question is one of 2 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal quantum: what is the measure of damages suffered by Auspicious Journey by reason of the established oppression? [2] Having carefully considered the evidence adduced over 17 non-consecutive hearing days, the expert reports tendered by both parties, the written and oral submissions of counsel, and the authorities cited, I find in favour of Auspicious Journey and award damages in the sum of RM18,553,000.00, together with additional damages of SGD164,918.82 and RM31,800.00, with interest at 5% per annum from 3.8.2016 until full realisation. These are my grounds. BACKGROUND FACTS [3] Auspicious Journey is a Malaysian company which held 20% of the shares in Ebony Ritz. Hoe Leong, a company incorporated in Singapore, held the remaining 80%. Ebony Ritz was a special purpose joint venture vehicle incorporated to acquire a significant interest in the oil tanker chartering business of Semua International Sdn Bhd (“Semua International”) through the acquisition of a 49% shareholding therein from Sumatec Resources Bhd (“Sumatec”). [4] On 5.5.2010, a Sale and Purchase Agreement (“the Initial 49% SPA”) was executed between Ebony Ritz and Sumatec for the sale of 49% of the issued and paid-up 3 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal share capital of Semua International for a consideration of RM44.10 million. Simultaneous with the execution of the Initial 49% SPA, the parties also entered into an Option and Financial Representation Agreement dated 5.5.2010 (“OFRA”) between Ebony Ritz, Auspicious Journey and Sumatec, which contained the following material provisions: a) Sumatec gave an unconditional and irrevocable guarantee to Ebony Ritz to make good any shortfall in the event the audited profit after taxation of the Semua International group fell short of RM25 million for the financial year 2010 and RM31 million for the financial year 2011 respectively (“the Profit Shortfall Guarantee”); b) Sumatec granted irrevocable call options to Ebony Ritz and Auspicious Journey to acquire the remaining 51% interest in Semua International retained by Sumatec, comprising (i) a call option for Ebony Ritz to acquire an additional 2% of the ordinary shares in Semua International for a fixed amount of RM1.8 million in cash, which, if exercised, would give Ebony Ritz a majority stake and control over Semua International (“the ER Call Option”); and (ii) a call option for Auspicious Journey to acquire up to an additional 49% (or 51%, if the ER Call Option was not exercised) of the ordinary shares in Semua International (“the AJ Call Option”). 4 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [5] On 6.12.2011, Ebony Ritz issued a Call Option Notice to Sumatec to exercise the ER Call Option for 2% of the ordinary shares in Semua International. However, this attempt was aborted. [6] Dato’ Andy Kuek Kien Joo (“Andy Kuek”) was a director of Auspicious Journey. Kuah Geok Khim (“Paul Kuah”), the 3rd Defendant, and Kuah Geok Lin (“James Kuah”), the 4th Defendant, who were directors of Hoe Leong, also served as directors of Semua International from September 2010. [7] On 21.12.2012, a Sale and Purchase Agreement (“the 51% SPA”) was entered into between Setinggi Holdings Ltd (“Setinggi Holdings”), Sumatec, Hoe Leong and Ebony Ritz for the sale of 51% of the ordinary shares in the issued share capital of Semua International for a total consideration of RM18.80 million. The 51% SPA was entered into without the knowledge or approval of Auspicious Journey. Under the 51% SPA, the 51% shares were to be disposed of in two tranches: the first tranche involved Sumatec selling 2% of its interest in Semua International to Hoe Leong directly for RM1.8 million; the second tranche involved Sumatec selling 49% of its interest to Setinggi Holdings for RM17 million. [8] The 51% SPA contained, amongst others, the following terms: (a) the relinquishment by Ebony Ritz of the Profit Shortfall Guarantee amounting to approximately RM27 million; (b) the assignment by Semua International of 5 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal dividends totalling RM12.1 million to Sumatec on a specific date independent of any previous contingency; and (c) the provision of an indemnity by Ebony Ritz to Sumatec. [9] On or about 6.6.2013, Auspicious Journey commenced proceedings under section 181 of the Act against the Defendants. The High Court (Hanipah binti Farikullah J, as Her Ladyship then was) heard the liability phase over the period from 23.6.2014 to 22.9.2015 and delivered judgment on 3.8.2016 (with Grounds of Decision dated 2.12.2016). The High Court found five heads of oppression arising from the 51% SPA, namely: a) the loss of the AJ Call Option; b) the loss of the ER Call Option; c) the loss of the Profit Shortfall Guarantee entitlement; d) disadvantageous liability commitments imposed on Ebony Ritz; and e) the relinquishment of dividend rights. [10] The Court of Appeal dismissed both appeals (Hoe Leong’s appeal against the finding of liability, and Auspicious Journey’s appeal regarding the winding-up order and individual defendants’ liability) on 21.5.2018 and issued Grounds of Judgment dated 1.10.2018. The Federal Court 6 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal affirmed the lower courts’ decisions on 9.3.2021, further directing that the assessment of damages be conducted by a High Court Judge rather than the Registrar. [11] The assessment proceedings before this Court were heard over 17 non-consecutive days between 10.7.2023 and 7.8.2025. Six expert reports were tendered: three by Mr Leonard Woo Chi Leong of Deloitte Business Advisory Sdn Bhd (“Mr Woo”), called on behalf of Auspicious Journey, and three by Mr Liew Kim Yuen of Ferrier Hodgson MH Sdn Bhd (“Mr Liew”), called on behalf of Hoe Leong. In addition, factual affidavits were filed by both sides and cross- examination of deponents was conducted. RESPECTIVE PARTIES’ SUBMISSIONS Auspicious Journey’s Submissions [12] Auspicious Journey submitted that it is entitled to damages in the sum of RM18,553,000.00 assessed as at 31.12.2012 (being the date nearest to the date of the 51% SPA on 21.12.2012) in relation to the five established heads of oppression, or alternatively RM18,673,000.00 if the date of assessment is taken as 3.8.2016, the date of the High Court Judgment. In addition, Auspicious Journey claimed SGD164,918.82 and RM31,800.00 for costs and expenses incurred for legal advice obtained as a direct consequence of Hoe Leong’s oppressive acts, which were unrelated to the proceedings before this Court. Auspicious Journey 7 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal relied upon the expert evidence of Mr Woo, who applied the Black-Scholes Option Pricing (“BSOP”) model to value the expropriated call options and calculated the losses flowing from each head of oppression. Auspicious Journey further submitted that the principle of reflective loss does not bar its claim, relying on the Federal Court decision of Low Cheng Teik & Ors v Low Ean Nee [2024] 5 MLJ 586, and that the losses it suffered were personal and separate from those of Ebony Ritz. [13] Auspicious Journey contended that Hoe Leong’s attempt to rely on observations made by the Federal Court at paragraphs 159 to 162 of its Grounds to diminish or deny the remedy was opportunistic, as those remarks were obiter dicta and not determinative of the quantum of damages. Auspicious Journey further submitted that causation was plainly established, that no double recovery arises, and that the assessment of damages flows directly from the High Court Order as affirmed through all appellate levels. Hoe Leong’s Submissions [14] Hoe Leong submitted that Auspicious Journey’s Points of Claim should be dismissed with costs. Its principal grounds were as follows: first, that the reflective loss principle, as expressly recognised by the Federal Court at paragraphs 159 to 160 of its Grounds of Judgment, bars Auspicious Journey from claiming damages that are in substance losses suffered by Ebony Ritz rather than personal losses of 8 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal Auspicious Journey; secondly, that the winding up of Ebony Ritz had already fulfilled the purpose of the oppression remedy; thirdly, that Auspicious Journey is estopped from claiming damages in respect of options it never intended to exercise; fourthly, that Auspicious Journey’s expert’s evidence was unreliable due to erroneous assumptions; fifthly, that no causal link had been established between the oppression and the claimed damages; and sixthly, that permitting damages would constitute unjust enrichment, allowing Auspicious Journey to recoup from a failed investment in a declining shipping industry. Hoe Leong relied on, amongst others, Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and Other Appeals [2012] 3 MLJ 616, Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, and Foss v Harbottle (1843) 2 Hare 461. ANALYSIS AND FINDINGS OF THE COURT Scope of the Assessment Proceedings [15] Auspicious Journey submitted that this Court’s role at this stage is confined to quantifying the damages flowing from the five established heads of oppression. The issue of liability has been conclusively determined by the High Court, affirmed by the Court of Appeal on 21.5.2018, and the Federal Court on 9.3.2021. There are concurrent findings at all three judicial levels on the heads of oppression and where the damage and liability ought to lie. 9 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal Auspicious Journey contended that the live and pending issue before this Court is no longer whether Auspicious Journey is entitled to claim damages. Rather, the heads of oppression and damage are straightforward and may be categorised into two categories: first, the expropriation and/or relinquishment of existing rights; and secondly, the creation of new liabilities. [16] Accordingly, the sole question is one of quantum, namely what is the value and quantum of the rights which had been expropriated and/or relinquished, as well as the value and quantum of the liabilities which had been created by the 51% SPA, and how much of the aforesaid values is Auspicious Journey’s loss. Auspicious Journey further submitted that Hoe Leong ought not be permitted to relitigate the question of entitlement to damages at this assessment stage. Auspicious Journey submitted that it is not open for Hoe Leong to revisit whether Auspicious Journey is entitled to claim on a head of oppression which has been conclusively determined at the liability stage, and that an attempt to revisit this issue would undermine the High Court Judgment. [17] Hoe Leong relied on the Federal Court’s observations at paragraphs 159 to 162 of its Grounds of Judgment, and in particular paragraph 160, wherein the Federal Court stated: “In the present appeal, many of the losses claimed by Auspicious Journey did not have a direct and personal impact on it in its capacity as minority 10 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal shareholder of Ebony Ritz. In fact, in most instances, the losses claimed are, in actuality, losses suffered by Ebony Ritz. While the fact of the occurrence of the events giving rise to the losses are relevant for the purposes of establishing oppression, detriment or prejudice, this does not translate into actual loss suffered by Auspicious Journey. In assessing damages in relation to Auspicious Journey’s loss, this issue has to be borne in mind.” [18] Hoe Leong submitted that this finding is binding and that any departure from it would risk resulting in a determination that is inconsistent with and/or contrary to the position already conclusively determined by the Federal Court. Counsel for Hoe Leong further submitted that the words “if any” in the High Court Order indicate that there is a possibility that the plaintiff may not necessarily suffer damages, and that the Federal Court’s findings are binding or, at the very least, very highly persuasive. [19] I am satisfied that the scope of the present proceedings is limited to quantum. The express terms of the High Court Order dated 3.8.2016 state: “General damages be assessed by the Registrar, if any, that is suffered by the Plaintiff by reason of the oppression stated in minute (1) above.” [20] The words “if any” do not re-open the question of entitlement but rather qualify the quantum to be assessed. It is a recognition that the quantum may, upon assessment, be established at a particular sum, but it does not create a gateway for Hoe Leong to re-agitate the question of whether Auspicious Journey is entitled to claim on the established 11 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal heads of oppression. The five heads of oppression, namely, the loss of the AJ Call Option, the loss of the ER Call Option, the loss of the Profit Shortfall Guarantee entitlement, disadvantageous liability commitments imposed on Ebony Ritz, and the relinquishment of dividend rights, have been conclusively determined by concurrent findings at all three judicial levels. It is not open to Hoe Leong to revisit whether Auspicious Journey is entitled to claim on heads of oppression that have been finally adjudicated. To permit otherwise would undermine the finality of the High Court Judgment as affirmed on appeal, and would render the assessment of damages order illusory. [21] This is fortified by the fact that Hoe Leong’s liability was not challenged at the Federal Court stage. Hoe Leong did not apply for leave to appeal against the Court of Appeal decision on the finding of oppression. It was only Auspicious Journey that appealed to the Federal Court, and the Federal Court dismissed Auspicious Journey’s appeal on 9.3.2021 with no order as to costs, thereby leaving the findings of liability and the order for assessment of damages intact. In its Re-Amended Reply, Auspicious Journey had expressly pleaded at paragraph 7A.1 that Hoe Leong’s liability for its oppressive acts/conduct is final and conclusive. The decisions and findings made by the High Court and as affirmed by the Court of Appeal against Hoe Leong regarding the liability of oppression are accordingly final. Hoe Leong’s attempt to now rely on the Federal Court’s grounds to diminish its liability to remedy the oppression is 12 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal opportunistic and misplaced. If the observations and/or findings of the Appellate Courts had not diminished and/or absolved Hoe Leong of its liability, then these same observations and/or findings cannot be selectively referred to and used at this stage to diminish and/or deny Auspicious Journey of its remedy, the assessment of damages being a remedy specifically ordered by the Courts which flows from the Courts’ concurrent findings of oppression. I accept this submission. [22] The Federal Court’s observations at paragraphs 159 to 162, properly construed, were addressed to the methodology of the assessment rather than the entitlement to damages itself. The Federal Court directed that the assessment be conducted by a High Court Judge (instead of the Registrar), and stated that in assessing damages, the issue of reflective loss “has to be borne in mind.” This is a direction as to how the assessment is to be approached, not a finding that Auspicious Journey is disentitled from claiming on the established heads of oppression. Once the two overriding issues of reflective loss and the Federal Court’s observations are addressed, the remaining issue is one of quantification, which is fundamentally an expert evidence matter. I deal with the reflective loss issue separately at paragraphs 28 to 46 below. For present purposes, it suffices to state that the scope of these proceedings is confined to the assessment of quantum in respect of the five established heads of oppression. 13 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal The Applicable Legal Principles on Damages in Oppression Proceedings [23] The fundamental principle governing the assessment of damages was stated by Lord Blackburn in Livingstone v The Rawyards Coal Company (1880) 5 App.Cas. 25 at p. 39 (UKHL(Sc.)): “...where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” [24] This compensatory principle applies equally in the context of oppression proceedings under section 181 of the Act. Our Federal Court in Koh Jui Hiong @ Koa Jui Heong & Ors v Ki Tak Sang @ Kee Tak Sang and another appeal [2014] 3 MLJ 10 (per Jeffrey Tan FCJ) confirmed at [57] that an order of a compensatory nature can be made under section 181 provided it satisfies the purposes of the remedy, namely to bring the oppression to an end and to put right the matters complained of. The Federal Court in Koh Jui Hiong further cited with approval the English High Court decision in Re Annacott Holdings Ltd [2012] EWHC 1662 (Ch) at [65], where the principle held applicable was that the compensation should put the injured party in the position he would have been in had he not sustained the unfair prejudice. 14 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [25] The purpose of section 181 is to confer an effective remedy upon minority shareholders who are being oppressed by the majority. As stated by the Federal Court in Low Cheng Teik & Ors v Low Ean Nee [supra] at [66], this was the rationale expressed during the second reading of the Companies Bill in the Dewan Rakyat on 9.8.1965. The power and discretion of the Court under section 181 is wide: the Court is required to do that which is just and equitable between the parties to cure the oppression. This was affirmed by the English Court of Appeal in In re Bird Precision Bellows Ltd [1986] Ch. 658 at 669D-E (per Nourse LJ), where the Court held that the discretion to do what is fair and equitable in all the circumstances does not stop short when it comes to the terms of a compensatory order. [26] The remedy in an oppression petition is twofold: it should bring the oppression to an end, and it should remedy the matters complained of, putting right the injury the petitioner has suffered. As the House of Lords stated in Scottish Co- Operative Wholesale Society Ltd v Meyer & Ors [1959] AC 324 at 368-369 (UKHL(Sc.)): “If a remedy is available when the oppression is so moderate that it only inflicts wounds on the company, whilst leaving it active, so also it should be available when the oppression is so great as to put the company out of action altogether. Even though the oppressor by his oppression brings down the whole edifice - destroying the value of his own shares with those of everyone else - the injured shareholders have, I think, a remedy under section 210.” 15 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [27] I am satisfied that the relief of winding up Ebony Ritz, while it may have brought the ongoing oppression to an end, has not by itself remedied the matters complained of. The assessment of damages is the vehicle through which the second limb of the remedy is to be given effect. Despite having its rights adversely affected by Hoe Leong’s oppressive conduct over more than 12 years ago, Auspicious Journey has not received any compensation for the oppression suffered. This remedy is not meant to be illusory. The Reflective Loss Principle [28] Auspicious Journey submitted that the reflective loss principle does not bar its claim, relying on the recent Federal Court decision in Low Cheng Teik & Ors v Low Ean Nee and the analysis therein of Marex Financial Ltd v Sevilleja [2021] AC 39 (UKSC) and Suying Design Pte Ltd v Ng Kian Huan Edmund and other appeals [2020] 2 SLR 221 (SGCA). Auspicious Journey contended that the reflective loss principle operates only at the threshold stage of an oppression action, that is, in determining whether the shareholder’s complaint is properly brought as a personal action rather than a derivative action, and does not operate as a complete bar to recovery at the remedial stage once oppression has been established. It further contended that the losses suffered are personal to it as the excluded minority shareholder, having been caused by conduct 16 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal directed specifically against it by Hoe Leong through the 51% SPA. [29] Hoe Leong submitted that the reflective loss principle applies with full force, citing paragraphs 159 to 160 of the Federal Court’s Grounds of Judgment in the present case, where Nallini Pathmanathan FCJ stated: “[160] In the present appeal, many of the losses claimed by Auspicious Journey did not have a direct and personal impact on it in its capacity as minority shareholder of Ebony Ritz. In fact, in most instances, the losses claimed are, in actuality, losses suffered by Ebony Ritz. While the fact of the occurrence of the events giving rise to the losses are relevant for the purposes of establishing oppression, detriment or prejudice, this does not translate into actual loss suffered by Auspicious Journey. In assessing damages in relation to Auspicious Journey’s loss, this issue has to be borne in mind.” [30] Hoe Leong relied on Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and Other Appeals, Prudential Assurance Co Ltd v Newman Industries Ltd (No 2), Foss v Harbottle and Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (UKHL) to contend that the losses claimed are reflective of Ebony Ritz’s losses and are not recoverable by Auspicious Journey. [31] I have given careful consideration to both arguments. The starting point is the Federal Court’s decision in Low Cheng Teik, which, whilst departing from the earlier position in Rinota Constructions Sdn Bhd v Mascon Rinota Sdn Bhd & Ors [2018] 1 MLJ (FC), did not hold that the reflective loss 17 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal principle operates as a complete bar in oppression proceedings. In Rinota, the Federal Court had stated, at paragraph 37, that the reflective loss principle has “absolutely no application in a minority oppression petition where the diminution in value of the minority share can be attributed … to the oppressive conduct of the majority shareholders.” In Low Cheng Teik, the Federal Court, in the judgment of Nallini Pathmanathan FCJ, departed from that blanket position at paragraph 123: “[123] In light of the recent developments in the jurisprudence in the United Kingdom and Singapore as set out above, we conclude that the view expressed by this court in Rinota to the effect that the reflective loss principle has no application in an oppression action ought to be departed from.” [32] The Federal Court went on, at paragraphs 125 to 127, to clarify the limited scope of its departure: “[125] We reiterate that an oppression action can only be properly advanced where a minority shareholder has suffered a loss which is separate and distinct from the loss to the company, that is, to all the shareholders collectively.” “[127] It is pertinent, however, that the reflective loss principle may not come into play where, for example, the loss in the value of the share capital or the loss of dividends is due to acts or omissions by the majority or by persons in control of the company where such loss is a result of oppression, unfair discrimination or otherwise prejudicial conduct against the shareholder himself to the exclusion of the other shareholders. In other words, the deprivation of dividends or losses is directed personally against the shareholder such that only he, and not the other shareholders, suffers such loss.” 18 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [33] A fundamental distinction must be drawn between two stages of oppression proceedings: first, the determination of whether oppression has occurred; and second, the fashioning of an appropriate remedy. Low Cheng Teik, properly construed, is directed at the first stage. The Federal Court’s proposition, that the reflective loss principle “bolsters the requirement under s 346 that the loss suffered by a shareholder must be special and distinctive to the shareholder”, is concerned with the threshold inquiry into whether the shareholder’s complaint is properly brought as an oppression action rather than a derivative action. The critical words, as the Federal Court itself stated, are “to that extent.” The principle is not directed at the question of what remedy may be granted once oppression has been proven. In the present case, that threshold has long been resolved. The High Court found that Hoe Leong had oppressed Auspicious Journey. The Court of Appeal affirmed that finding. The Federal Court dismissed the further appeal. The oppression of Auspicious Journey is therefore a settled fact determined across all three tiers of the Malaysian courts. The reflective loss principle, as contextualised in Low Cheng Teik, has no further work to do at the remedial stage. [34] The question, then, is whether the losses claimed by Auspicious Journey in this case are personal and separate from those suffered by Ebony Ritz. I find that they are. The 51% SPA was a self-dealing transaction by Hoe Leong that deliberately excluded Auspicious Journey and transferred 19 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal value to Hoe Leong. In the first tranche, Hoe Leong acquired 2% of Semua International directly, being the very shareholding that could have been acquired by Ebony Ritz through the exercise of the ER Call Option. In the second tranche, Setinggi Holdings (Hoe Leong’s nominee) was to acquire the remaining 49%, being the shares subject to the AJ Call Option. These were not coincidences but the direct and intended effects of the oppressive transaction. The loss suffered by Ebony Ritz was the instrument through which value was transferred to Hoe Leong. As the Federal Court in Low Cheng Teik recognised at paragraph [127], where the wrongful conduct of the majority “is a result of oppression, unfair discrimination or otherwise prejudicial conduct against the shareholder himself to the exclusion of the other shareholders,” the reflective loss principle does not come into play. That is precisely the position here. [35] The concurrent findings of the High Court and the Court of Appeal are that the 51% SPA benefited Hoe Leong at the expense of Auspicious Journey and Ebony Ritz. The losses suffered by Ebony Ritz translated into a direct benefit for Hoe Leong: for example, Hoe Leong obtained its 2% shares in Semua International directly as a result of the expropriation of the ER Call Option. The loss of the Profit Shortfall Guarantee, which required Ebony Ritz to waive RM27,017,000.00 in enforceable debt, was done to facilitate a transaction that benefited Hoe Leong alone, causing distinct personal loss to Auspicious Journey as the excluded minority. The assignment of dividends worth 20 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal RM12.1 million similarly constitutes a personal loss falling within the exception recognised in Low Cheng Teik at paragraph 127. On the facts as found, the losses are not merely reflective of a corporate wrong affecting all shareholders equally; they are the direct product of oppression directed at Auspicious Journey to the exclusion of the other shareholders, with Hoe Leong as both oppressor and beneficiary. [36] The decision of the Singapore Court of Appeal in Suying Design further supports this conclusion. The Court of Appeal considered the interplay between the proper plaintiff rule, the reflective loss principle, and the oppression remedy under section 216 of the Singapore Companies Act, the equivalent of our section 181 of the Act. The Court held at paragraph 36: “[I]f the minority shareholder is nonetheless able to establish some conduct on which an oppression action may be grounded, and so long as he retains his shareholding, as matter of principle, he should be entitled to rely on s 216, which is designed for the protection of members of companies.” [37] Auspicious Journey has done far more than establish conduct on which an oppression action may be grounded: it has had oppression conclusively determined in its favour through three levels of court. The statutory purpose of section 181 of the Act is the protection of minority shareholders against oppressive conduct, and Suying Design confirms that the reflective loss principle ought not 21 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal be weaponised to defeat that protection. I further note, on the question of double recovery, which is a separate principle from the reflective loss doctrine, as Lord Reed clarified in Marex at paragraph 9, that no such risk exists on the facts. Ebony Ritz has been in liquidation since 3.8.2016. It has not and is unlikely ever to commence proceedings against Hoe Leong in relation to the expropriation of the ER Call Option or any other head of loss. Sumatec has likewise been wound up. There is no evidence before this Court that any recovery has been effected by Ebony Ritz in liquidation from Hoe Leong in respect of these losses. [38] As to the Federal Court’s remarks at paragraphs 159 to 160, I accept Auspicious Journey’s submission that these were obiter dicta. The damages assessment was not an issue before the Federal Court; the appeal concerned only the question of whether the 3rd and 4th Defendants should be held personally liable. Moreover, the Federal Court merely stated that the reflective loss issue “has to be borne in mind” in the assessment of damages; it did not foreclose any particular conclusion. This Court has now fully considered the issue, bearing it in mind, and has determined that the losses claimed are personal to Auspicious Journey within the meaning of Low Cheng Teik. In considering the weight to be accorded to those remarks, it is pertinent to observe that the Federal Court, at the time it made them, did not have before it the benefit of the analysis in Low Cheng Teik, which was decided only in 2024 after the Federal Court’s judgment in the present case, nor was 22 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal the specific question of the assessment of damages before it. The remarks were accordingly made in a context where neither the doctrinal landscape subsequently settled in Low Cheng Teik nor the detailed submissions now before this Court on the reflective loss issue had been placed before the Federal Court for consideration. In those circumstances, the persuasive weight of those remarks, which were themselves obiter, is necessarily limited. Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 CLJ 577 at [51] (FC) supports the proposition that obiter dicta are not binding on courts of co-ordinate or lower jurisdiction. [39] The case of Pioneer Haven relied upon by Hoe Leong is distinguishable. Pioneer Haven is not an oppression case, and the principles set out therein are premised upon the rule in Prudential, which must now be read in light of the UK Supreme Court’s clarification in Marex. In Marex, Lord Reed PSC, delivering the leading judgment, drew a critical distinction between the rule in Prudential, which is a bright- line rule of company law rooted in the proper plaintiff principle in Foss v Harbottle, and the general principle of the law of damages that double recovery should be avoided. His Lordship explained at paragraph 9 that the Prudential rule operates on the basis that the shareholder “does not suffer a loss which is recognised in law as having an existence distinct from the company’s loss,” and that a claim by the shareholder is accordingly “barred by the principle of company law known as the rule in Foss v Harbottle.” Critically, Lord Reed concluded at paragraph [89]: 23 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal “The rule in Prudential is limited to claims by shareholders that, as a result of actionable loss suffered by their company, the value of their shares, or of the distributions they receive as shareholders, has been diminished. Other claims, whether by shareholders or anyone else, should be dealt with in the ordinary way.” [40] The oppression claims brought by Auspicious Journey under section 181 of the Act are plainly among the “other claims” referred to by Lord Reed. As his Lordship further stated at paragraph [34], a shareholder in a minority has available to him “equitable relief from unfairly prejudicial conduct”, that is, precisely the oppression remedy which Auspicious Journey has pursued and which has been granted by the courts. The rule in Prudential, as clarified in Marex, does not apply at the relief stage in the consideration of remedy, and does not apply to oppression proceedings brought under a statutory provision. Pioneer Haven, being premised on the unamended Prudential rule, accordingly does not avail Hoe Leong. [41] Accordingly, the reflective loss principle does not bar Auspicious Journey’s claim for damages in these proceedings. The principle, properly understood, operates at the threshold stage of establishing oppression and not at the remedial stage. The losses claimed by Auspicious Journey are personal and distinct, arising from oppressive conduct directed against it by Hoe Leong through the 51% SPA. The Federal Court’s remarks at paragraphs 159 to 160 are obiter dicta. Pioneer Haven is distinguishable, and the Prudential rule does not apply to oppression 24 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal proceedings of the present nature. There is no risk of double recovery, as Ebony Ritz is in liquidation and no relevant proceedings against Hoe Leong have been or are likely to be commenced. To permit Hoe Leong to invoke the reflective loss principle as a shield at this stage would be to allow the oppressor to profit from its own oppression, defeating the very purpose for which section 181 of the Act was enacted. The Winding-Up Order as Adequate Remedy [42] Hoe Leong submitted that the winding-up remedy granted by this Court on 3.8.2016 (and subsequently affirmed by both the Court of Appeal and the Federal Court) had already served its intended purpose under the oppression regime pursuant to section 346 of the Companies Act 2016. Hoe Leong contended that the main purpose of granting remedies under section 346 is to end the oppression, relying on the Federal Court decision in Koh Jui Hiong. Hoe Leong further submitted that it is trite that any complaints of oppression can no longer be sustained after a company was wound up, citing the Court of Appeal decision in Hendrick International Hotels & Resorts Pte Ltd v YTL Hotels & Properties Sdn Bhd & Ors [2003] 3 MLJ 742 (CA), where the majority judgment delivered by Richard Malanjum JJCA, accepting the proposition of law as expounded in Webb v Stanfield, held: 25 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal “Now, having considered the contentions of learned counsel for the parties and the authorities cited, by majority, we were inclined to accept the proposition of law as expounded in Webb v Stanfield. In other words, since a winding up order has already been granted to wind up the said company with a liquidator appointed, the complaints of the appellant of oppressive acts and such other acts couched under s 181 of the Act and as contained in the said petition could no longer be sustained.” [43] Auspicious Journey submitted that the purpose of the oppression remedy is not merely to end the oppression but to remedy the matters complained of. Even if the winding up may have ended the ongoing oppression, it has not remedied the loss suffered by Auspicious Journey. Despite having its rights and interests adversely affected by Hoe Leong’s oppressive conduct, Auspicious Journey has not received any compensation to remedy its loss to date. As Auspicious Journey submitted, it has merely been relegated from a minority shareholder to a minority contributory through the winding up of Ebony Ritz, without a single cent of compensation since it commenced its oppression proceedings in 2013. Auspicious Journey further submitted that this assessment of damages proceedings is pursuant to the High Court Judgment to give remedy to Auspicious Journey, and that this remedy is not meant to be illusory. The remedy has not been given or administered, notwithstanding that it has already been prescribed by court order. Although the order provided for the grant of appropriate relief, that relief has yet to be effectuated, which is why these assessment proceedings are now before the Court. 26 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [44] I prefer the submission of Auspicious Journey. The remedy in an oppression petition is twofold: it should bring the oppression to an end, and it should remedy the matters complained of, putting right the injury the petitioner has suffered. The High Court Judge specifically ordered both the winding up of Ebony Ritz and the assessment of damages in favour of Auspicious Journey, to be paid by Hoe Leong. These two remedies were intended to complement each other. The winding up addresses the first limb (bringing the oppression to an end); the assessment of damages addresses the second limb (remedying the matters complained of). The winding up was the prescription; the assessment of damages is the administration of the remedy. It is only through the award of damages that the remedy becomes meaningful and complete. To hold otherwise would be to render the Court’s express order for assessment of damages nugatory, and to bestow upon Auspicious Journey what it rightly described as a Pyrrhic victory, in contradiction of the underlying equitable principles governing the grant of remedies in oppression cases. It would be wholly inequitable and unjust to hold that Auspicious Journey is not entitled to any damages after more than 12 years of litigation despite clear and concurrent findings of oppression at all three levels of court. 27 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [45] The authority relied upon by Hoe Leong in Hendrick International Hotels does not assist its case, and is distinguishable on several grounds. First, as to the nature of the proceedings: Hendrick International Hotels concerned an oppression petition that had been struck out before any hearing on its merits. No determination of oppression was ever made in that case. The question before the Court of Appeal was whether the petition could even proceed after a winding-up order had been granted. By contrast, in the present case, oppression has been conclusively determined by this Court on 3.8.2016, affirmed by the Court of Appeal on 21.5.2018, and upheld by the Federal Court on 9.3.2021. Hoe Leong did not apply for leave to appeal against the dismissal of its appeal; accordingly, the concurrent findings of oppression and liability are final and conclusive. The assessment of damages is not an attempt to sustain complaints of ongoing oppression; it is a separate and subsequent step, expressly ordered by this Court, to give effect to the second limb of the remedy. [46] Secondly, as to the nature of the reliefs: the reliefs sought in Hendrick International Hotels were share buy-out orders, namely an order requiring the first respondent to purchase the appellant's shares at a price of RM7,998,000 or at a fair value to be assessed by independent auditors. The majority (per Abdul Hamid Mohamad and Richard Malanjum JJCA) identified a specific obstacle under section 223 of the Companies Act 1965, which provides that any disposition of the property of the company after the commencement of the 28 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal winding up shall be void, and held that "the prayers in the said petition requiring the first respondent to purchase the appellant's shares in the said company at a price of RM7,998,000 or at a fair value to be assessed by a firm of independent auditors cannot be entertained unless sanctioned by the court." That concern does not arise in the present case, where the relief ordered is an assessment of damages payable by Hoe Leong to Auspicious Journey — not a disposition of Ebony Ritz's property. [47] Thirdly, as to the underlying rationale: the majority in Hendrick International Hotels reasoned that once a liquidator was appointed, it was the liquidator who was running the affairs of the company, and that the complaints of oppressive acts "could no longer be sustained" because the perpetrators were no longer conducting the company's affairs within the meaning of section 181(1)(a) of the Act. That reasoning has no application where, as here, the oppressive conduct has already been conclusively determined and the sole remaining question is the quantification of damages. I note further that even the majority in Hendrick International Hotels acknowledged the passage from the Singapore Court of Appeal in Kumagai Gumi Co Ltd v Zenecon Pte Ltd & Ors and other appeals [1995] 2 SLR 297 (SGCA, per LP Thean JA) that "the appointment of liquidators is no bar to other reliefs, if appropriate. It depends on the facts of the particular case, and the orders to be made by the court … are ultimately discretionary." The majority distinguished Kumagai Gumi on 29 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal its facts, but the principle it enunciated, that the appointment of a liquidator does not automatically preclude all relief, is directly applicable here, where the Court has expressly ordered damages to be assessed and paid by Hoe Leong as a complementary remedy to the winding up. [48] I am further fortified in this view by the Federal Court’s own treatment of the remedy in the present case. The Federal Court, whilst declining to order a buy-out, nevertheless upheld the remedy of winding up and general damages to be assessed as granted by the High Court. At paragraph [148] of its Grounds of Judgment, the Federal Court (per Nallini Pathmanathan FCJ) confirmed that section 181(2) of the Act (now section 346(2) of the Companies Act 2016) empowers the Court to make such order as it thinks fit “with the view to bringing an end or remedying the matters complained of”, and that the Court is not restricted to the reliefs mentioned therein but is empowered to grant an open-ended range of remedies. If the winding up alone had been sufficient to fulfil the purpose of the oppression remedy, there would have been no occasion for the Federal Court to uphold the order for assessment of damages alongside the winding-up order. The fact that the Federal Court maintained both remedies confirms that they serve distinct and complementary purposes, and that the assessment of damages remains the vehicle through which the second limb of the remedy, namely putting right the matters complained of, is to be given effect. 30 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal Estoppel and Auspicious Journey’s Conduct [49] Hoe Leong raised estoppel, contending that Auspicious Journey’s behaviour and intention not to exercise the call options should preclude it from claiming damages in respect of those options. Hoe Leong relied upon observations made by the appellate courts regarding Auspicious Journey’s conduct and its unwillingness to commit further funds toward the exercise of the AJ Call Option and the ER Call Option, and invited the Court to treat such conduct as either an election not to pursue those rights or as a representation upon which Hoe Leong was entitled to rely. Hoe Leong further submitted that the assessment of damages proceedings affords an appropriate occasion to revisit Auspicious Journey’s entitlement, having regard to what it characterised as Auspicious Journey’s disinclination to exercise at the material time. [50] Auspicious Journey submitted that estoppel, if any, ought to apply against Hoe Leong itself, as it did not raise estoppel at the liability stage before the High Court. Auspicious Journey contended that the issue of whether it is entitled to claim damages on the established heads of oppression has been conclusively determined, pointing to the express terms of the High Court Judgment, which ordered: “General damages be assessed by the Registrar, if any, that is suffered by the Plaintiff by reason of the oppression stated in minute (1) above.” Auspicious Journey submitted that, the heads of oppression having been determined at the liability 31 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal stage and upheld on appeal, the sole question at this assessment stage is quantum; it is not open to Hoe Leong to revisit the antecedent question of entitlement, which would be to undermine the finality of the High Court Judgment. Auspicious Journey further submitted that its decision not to exercise the AJ Call Option at the material time was not capricious but was grounded in a legitimate commercial rationale: pursuant to Clause 3.2 of the OFRA, any exercise of the AJ Call Option within two years of the Initial 49% Sale and Purchase Agreement would have extinguished Ebony Ritz’s right to the Profit Shortfall Guarantee; Auspicious Journey was accordingly exercising prudence in preserving a more valuable right. [51] I agree with Auspicious Journey’s submission. The first difficulty with Hoe Leong’s position is a procedural one that goes to the root of the present argument. Estoppel was not raised by Hoe Leong at the liability stage in the High Court. The High Court found oppression on the identified heads and ordered the assessment of damages. That order was affirmed by the Court of Appeal; Hoe Leong did not appeal against the Court of Appeal’s decision on liability. It is well established that parties are bound by the conduct of their cases and are not at liberty to introduce at a subsequent stage a defence that was available but not advanced at an earlier stage. To permit estoppel to be raised at this late stage of assessment as a means of deflecting a claim that the courts have conclusively determined is properly before the Court would fundamentally undermine the finality of the 32 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal High Court Judgment. The assessment is a remedy specifically ordered by the courts; it flows from the concurrent findings of oppression. Hoe Leong’s attempt to deploy, at this stage, observations made by the appellate courts to diminish the remedy previously ordered is, in the circumstances, misplaced. [52] The second difficulty with Hoe Leong’s position is one of substance. The appellate courts did have occasion to consider Auspicious Journey’s behaviour and intention in relation to the call options. Notwithstanding those considerations, the Court of Appeal upheld the findings of liability and the grant of remedy in favour of Auspicious Journey, and the Federal Court, whilst declining to order a buy-out, maintained both the winding-up order and the order for assessment of damages. The implication is clear: the courts did not consider Auspicious Journey’s conduct to be a bar to its entitlement. It would be internally inconsistent to hold that conduct which did not diminish Hoe Leong’s liability for oppression should now be permitted to extinguish Auspicious Journey’s remedy. Furthermore, and contrary to Hoe Leong’s characterisation, Auspicious Journey did not relinquish the AJ Call Option. This was confirmed by Hoe Leong’s own expert, Mr Liew of Ferrier Hodgson MH Sdn Bhd, in cross-examination: when asked whether Auspicious Journey had ever relinquished its right under the AJ Call Option, Mr Liew answered, “At that point in time, at that juncture, yes, I agree with you. I told you I agree already. I agree with you”; and when asked whether 33 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal the AJ Call Option remained intact, he confirmed, “Yes, of course.” Mr Liew further accepted that Auspicious Journey’s correspondence in 2011, stating that it was not obliged to exercise the AJ Call Option “at this juncture”, was time- specific and did not amount to a representation that it would not exercise the option in the future. [53] The third and independent ground upon which Hoe Leong’s estoppel argument fails is one of valuation principle. As a matter of the law and practice of options valuation, the intention of an option holder to exercise, or not to exercise, an option at any particular point in time does not affect the value of the option itself. An option, by its nature, confers upon the holder the right, but not the obligation, to exercise; that flexibility is itself the source of the option’s value. This principle was articulated with clarity by Mr Woo of Deloitte Malaysia, the plaintiff’s expert, in examination-in-chief: “The options typically give the option holder the right to exercise or not the obligation. So the option holder will has the right to exercise as at any point, so long it is before the expiry date. So therefore, you know, the intention of the option holder really... it is not, it is not being considered in the calculation of the option value.” [54] Crucially, this principle was conceded by Mr Liew himself in cross-examination. When asked whether the behaviour of the option holder is relevant to the valuation of the call options in this case, he answered simply: “In this case, no.” 34 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [55] The unanimous view of both experts thus confirms that Auspicious Journey’s intention with regard to the exercise of the call options has no bearing on the computation of their value. Hoe Leong’s estoppel argument fails on all three grounds. The Assessment Date [56] Auspicious Journey submitted that the appropriate date of assessment is 31.12.2012, being the date proximate to the date of the oppressive act on 21.12.2012, or alternatively the date of the High Court Judgment on 3.8.2016, with a difference in quantum of approximately RM120,000 between the two dates. On Auspicious Journey’s primary claim, the damages as assessed at 31.12.2012 amount to RM18.553 million and at 3.8.2016 amount to RM18.673 million. Auspicious Journey’s position is that the date of oppression in December 2012 is the appropriate reference point because all five heads of oppression arose directly from the entry of the 51% SPA on 21.12.2012, by which the ER Call Option and AJ Call Option were expropriated and the Profit Shortfall Guarantee was relinquished without the consent or knowledge of Auspicious Journey. Auspicious Journey further submitted that, to the extent the general rule for the assessment of damages is the date when the cause of action arises: Johnson v Agnew [1980] AC 367 (House of Lords)) such rule would in any event produce the same result here, given that the cause of action crystallised in December 2012. 35 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [57] Hoe Leong submitted that 21.12.2012 is the only viable date of assessment and raised two principal objections to Auspicious Journey’s position. First, Hoe Leong contended that there can be no meaningful value diminution within the 11 days separating 21.12.2012 from 31.12.2012, characterising the “prior to oppression” date as 20.12.2012 and the date of assessment adopted by Mr Woo as 31.12.2012, such that in substance the entire comparison compressed into an 11-day window is illusory. Hoe Leong further submitted that the date prior to oppression and the date of assessment, as framed in Mr Woo’s reports, are virtually indistinguishable in time. Secondly, Hoe Leong contended that the financial condition of Semua International at and after December 2012 was one of severe distress: audited financial statements disclose that as at 31.12.2012 Semua International’s total current liabilities exceeded its total current assets by RM195,540,049, with a further deterioration to negative net assets of approximately RM223 million by the end of financial year 2013. On this basis, Hoe Leong argued that permitting Auspicious Journey to assess its damages as at December 2012, before the full extent of the joint venture’s failure became apparent, would enable Auspicious Journey to recoup what was, in truth, a bad commercial investment, contrary to the caution expressed by the Federal Court against the use of oppression remedies to divest a minority shareholder of a fundamentally failed venture. 36 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [58] The general principles governing the date of valuation in oppression cases were usefully distilled by the English Court of Appeal in Profinance Trust SA v Gladstone [2001] EWCA Civ 1031, which undertook a survey of the earlier authorities and articulated a framework of guidelines applicable to the selection of the appropriate valuation date. The starting point in the ordinary course is the date of the order made on the petition: see In re London School of Electronics Ltd (No. 001003 of 1984) [1986] 1 Ch 211(English High Court). However, the Court of Appeal in Profinance recognised that an early valuation date may be required in fairness to the claimant in at least the following circumstances: first, where a company has been deprived of its business, an early valuation date and compensating adjustments may be required in fairness to the claimant; secondly, where a company has been reconstructed or its business has changed significantly, an early valuation date may be required in fairness to one or both parties; and thirdly, where a minority shareholder has a petition on foot and there is a general fall in the market, the court may in fairness to the claimant have the shares valued at an early date, especially if it strongly disapproves of the majority shareholder’s prejudicial conduct: see Profinance. [59] The Court of Appeal was equally careful to note, however, that a claimant is not entitled to what was described as a one-way bet, and that the Court will not direct an early valuation date simply to give the claimant the most advantageous exit, especially where severe prejudice has 37 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal not been made out. These principles, although articulated in the context of a buy-out, are of general application in assessing the appropriate date of valuation in oppression proceedings, and I adopt them accordingly. The analogous position in the present case, where the act of oppression by entry into the 51% SPA immediately expropriated the ER Call Option and AJ Call Option and relinquished the Profit Shortfall Guarantee, clearly falls within the first of the Profinance guidelines. Auspicious Journey and Ebony Ritz were thereby deprived of existing contractual rights, warranting an early valuation date in fairness to Auspicious Journey. [60] Turning to the evidence of Mr Woo on the question of methodology, it is important to appreciate the precise basis upon which he adopted 31.12.2012 rather than 21.12.2012. In his First Expert Report dated 1.3.2022, Mr Woo stated at paragraph 1.4.9: “I take the date of 21 December 2012 as the reference date as instructed by RORL, of which the Sale and Purchase Agreement (‘SPA’) was executed on the same date between Setinggi Holdings Limited (‘Setinggi’), Sumatec, HL and ER for the sale of 51% of all the ordinary shares in the issued share capital of SI (‘51% SPA’).” [61] Mr Woo then explained in paragraph 1.4.10: “Further, due to lack of availability of financial information of ER and SI on the reference date of 21 December 2012, which is taken to be the date on which the 51% SPA was executed and announced, I have taken 31 December 2012 as a proxy date for 38 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal my assessment of losses. This coincides with the financial year end of ER and SI where there were audited financial statements of these two companies made available. In the absence of financial statements as of 21 December 2012, 31 December 2012 financial statements are deemed to be the best available information for my assessment.” [62] This position was elaborated and confirmed in oral evidence during re-examination at Day 4 of the hearing (13.7.2023), where Mr Woo explained: “So ideally, the valuation can be carried out on the 21st December 12, due to the lack of financial information so the nearest date which have financial information has been used for the purpose of the valuation, which is the 31st December 12.” [63] He further confirmed: “So the valuation date adopted same as the reference date... Ya? Which is also the same as the assessment date.” [64] It is evident from this evidence, read in its full context, that the conceptual reference point anchoring the entirety of Mr Woo’s assessment is the date of oppression on 21.12.2012; the adoption of 31.12.2012 is strictly a proxy necessitated by the absence of audited financial statements as at 21.12.2012 and the availability of such statements at the financial year end of Ebony Ritz and Semua International. The two dates are not, in any material sense, alternatives in Mr Woo’s methodology. They represent one and the same reference point for valuation purposes, with 31.12.2012 39 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal serving as the nearest date for which reliable financial data exist. [65] I accept the evidence of Mr Woo that the appropriate assessment date is 31.12.2012, being proximate to the date of the oppressive act on 21.12.2012. This is consistent with the principles in Profinance as discussed above. The use of 31.12.2012 as a proxy for 21.12.2012 does not represent any departure from the underlying compensatory principle; it is a practical and principled accommodation of the evidentiary reality that no financial statements exist for the precise date of the oppressive transaction. Hoe Leong’s argument that there can be no meaningful value diminution within 11 days is misconceived. The question is not whether the value of shares or options changed materially between 20.12.2012 and 31.12.2012 in market terms: the oppressive transaction itself crystallised the loss by expropriating the rights on 21.12.2012, and the use of 31.12.2012 is simply the nearest reference date for purposes of quantification, being consistent with available audited financial information. [66] As for Hoe Leong’s argument grounded in Semua International’s financial distress, the Court notes that the audited financial statements of Semua International as at 31.12.2012, upon which Mr Woo relied in his assessment, disclose a net tangible assets position of RM144.1 million; and Hoe Leong, as a Singapore public-listed company, made contemporaneous announcements to the Singapore Exchange characterising the acquisition as contributing to 40 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal an ongoing business with positive prospects. Hoe Leong’s directors, when cross-examined, conceded that the acquisition was not made on the basis that money was being thrown after a bad investment, but because the business was then perceived as viable and profitable. The argument that damages should be assessed on the basis of subsequent commercial deterioration for which Hoe Leong’s own oppressive conduct was the material cause would, if accepted, immunise Hoe Leong from the consequences of its own wrong. That result is plainly inconsistent with the compensatory principle in Livingstone v The Rawyards Coal Company, which requires the court to put the injured party, as nearly as possible, in the same position as if the wrong had not been done. I therefore fix the assessment date at 31.12.2012 for all purposes of this assessment. Expert Evidence: Reliability and Weight [67] Auspicious Journey relied upon the evidence of Mr Woo of Deloitte Southeast Asia Financial Advisory, who is a Partner with more than 25 years of experience in business valuation, strategy, and transaction advisory, and who holds qualifications as a Chartered Valuer and Appraiser of the Institute of Valuers and Appraisers Singapore, a Fellow Chartered Accountant of Chartered Accountants Australia and New Zealand, a Chartered Accountant of the Malaysian Institute of Accountants, and a Chartered Accountant of the Institute of Singapore Chartered Accountants. Mr Woo prepared three expert reports dated 1.3.2022, 15.4.2023 41 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal and 6.7.2023 respectively, and was cross-examined over several hearing days. Auspicious Journey submitted that Mr Woo’s evidence was thorough, methodical, and based on internationally recognised valuation standards, and that his application of the BSOP model was consistent with the International Valuation Standard (“IVS”) for the valuation of options. [68] Hoe Leong relied upon the evidence of Mr Liew of Ferrier Hodgson (Baker Tilly), who also prepared three expert reports and was cross-examined extensively. Hoe Leong submitted that Mr Woo’s evidence should not be relied upon on two grounds: first, that his reports were premised upon erroneous assumptions; and second, that he had relied on “asserted facts” rather than “proven facts” in constructing his factual premises. As to the first ground, it was Mr Liew’s position in cross-examination that certain facts relied upon by Mr Woo had not been proven before the Court. As to the second ground, Mr Liew himself acknowledged during cross-examination that parties’ contentions “are not to be taken as proven”, and that certain portions of his own reports also fell within the category of “asserted facts”. Hoe Leong further submitted that, quite apart from its own expert’s evidence, Auspicious Journey’s claims would fail by reason of the reflective loss principle, lack of causation, and estoppel. 42 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [69] I have evaluated the evidence of both experts with care. Having done so, I prefer the evidence of Mr Woo over that of Mr Liew for the following reasons. [70] First, Mr Woo conducted an actual valuation exercise. He applied the BSOP model, which is one of the models recommended by the IVS for the valuation of options, and quantified each head of claim with specific monetary figures. In contrast, Mr Liew did not perform any valuation to ascribe a value or market value for either the AJ Call Option or the ER Call Option. When pressed on this during cross- examination, Mr Liew did not dispute it: “KY: In fact not just in these two paragraphs, in all three of your reports, you did not undertake any valuation to ascribe a value or a market value for the AJ Call Option. LKY: Naturally. KY: Yes. And you also did not undertake any valuation to ascribe a value or market value for the ER Call Option, correct? LKY: Naturally, yes.” [71] This concession is fundamental. A financial expert who declines to perform any valuation of the subject matter is of limited assistance to the Court on the question of quantum. Further, it emerged during cross-examination that in all three of his reports, Mr Liew had not commented upon, nor challenged, Mr Woo’s calculations in respect of each of the five variables under the BSOP model, and had not suggested any alternative methodology. When it was put to 43 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal him that the reason he did not propose an alternative model was because the BSOP model was the most suitable and appropriate one in this case, Mr Liew disagreed but was unable to identify any model he would have applied in its stead. [72] Secondly, Mr Liew’s ultimate conclusion that Auspicious Journey suffered no damages whatsoever is irreconcilable with the established findings of all three levels of the Malaysian judiciary that oppression had occurred. The finding of oppression necessarily implies that the minority shareholder was prejudiced. A conclusion that the rights expropriated were worthless stands in direct contradiction to the courts’ finding that those rights were oppressively taken. During cross-examination, Mr Liew was confronted with this inconsistency: “KY: So, which means, despite the Courts having found that ER and AJ’s rights have been oppressed and expropriated, you are still saying that these rights are worth nothing. DW1: The reasons we have come up to that conclusion is in the report, Ms Yong. KY: So, is this what you are saying? It’s worth nothing? DW1: That’s right. Correct.” [73] Mr Liew maintained this position notwithstanding the consistent judicial findings across all three levels of court. This renders his ultimate conclusion internally inconsistent 44 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal with the very legal framework within which this assessment is conducted. [74] Thirdly, Mr Liew ventured beyond his purview as a financial expert by making findings on “causal link” and “unjust enrichment”, which are legal determinations for the Court and not matters of financial analysis. Mr Liew explained in cross-examination that his “causal link” assessment was grounded in the accounting “Matching Concept”, namely that “every debit has a credit”: “DW1: The reason why we carry out the causal link is that in order to formulate a monetary sum, we need to look at the source of the information and how that translates into a figure. So, as mentioned yesterday, one of our key fundamental concepts is the matching concept. So, I need to match cost incurred by a company to the consideration received. So, it is consistent with the accounting principles of every debit has a credit.” [75] This justification is plainly untenable. The accounting principle that every debit has a credit bears no resemblance to determining the connection between a breach and resultant damages. Mr Liew’s causal link analysis was in substance a legal determination dressed in accounting language. Similarly, his use of the term “unjust enrichment” was deployed in the context of his causal link analysis, as he himself conceded: “when you say unjust enrichment you were using it in the context of there is no causal link”, to which Mr Liew replied, “That’s right.” Mr Liew ultimately conceded that the determination of causal link is a matter for the Court: 45 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal “KY: And I also suggest to you that the causal link, assessment of causal link, that is for the Court to decide. DW1: Ultimately yes, we have to defer it to the wisdom of this honourable Court, yes.” [76] Fourthly, Mr Liew omitted material findings from the High Court’s Grounds of Decision from his reports. When confronted during cross-examination with the High Court’s findings that the 51% SPA was not in the best interests of Ebony Ritz, Mr Liew conceded that the findings were material in all circumstances and that he had failed to disclose them: “KY: But you couldn’t show me where in your reports you disclosed these findings, can you? DW1: I did not disclose it. I agree I did not disclose.” [77] This omission is significant. An expert’s duty is to assist the Court by providing a complete and balanced account of the factual substratum upon which his opinions rest. The selective omission of judicial findings material to the matter in issue deprives those opinions of the full context required for their proper evaluation. The omission is particularly difficult to understand given that the High Court’s findings were at the core of what Mr Liew was instructed to assess. [78] Fifthly, Mr Liew also conceded during cross-examination that neither the Federal Court nor the Court of Appeal held that the Plaintiff did not suffer any loss: 46 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal “KY: The Federal Court and the Court of Appeal did not hold that the Plaintiff did not suffer any loss. There is no such finding in the Federal Court and Court of Appeal judgment. DW1: That’s correct. Agree.” [79] This is a concession of substance. Hoe Leong had relied upon appellate court observations as supporting Mr Liew’s conclusion that Auspicious Journey suffered no loss at all. That reliance is, on Mr Liew’s own admission, misplaced. The appellate courts made no such finding, and Mr Liew’s conclusions are accordingly without judicial foundation to support them. [80] Sixthly, Mr Liew’s credibility and reliability as an expert on call option valuation was further undermined by evidence as to his limited experience in this specialised area. It emerged during cross-examination that he had performed valuations of call options on only approximately 7 to 8 occasions over the span of 30 years, and that the last such valuation was performed approximately 7 years before the hearing. Despite this limited experience, Mr Liew characterised the BSOP model as “a very academic way, sometimes even to the extent of pedantic way of measuring”, and expressed general scepticism towards it. Yet he was constrained to acknowledge that he had himself used the BSOP model in past valuations, and that it is one of several accepted methods for valuing options under the IVS. While he asserted in his reports that the use of the BSOP model was erroneous in this instance, he conceded under cross- 47 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal examination that he did not suggest any alternative valuation model that would be more appropriate. Furthermore, he admitted that he had not specifically commented on or challenged Mr Woo’s computations of the five variables under the BSOP model in his reports, and ultimately conceded during the hearing that he only took issue with two of the variables while having no dispute with the remaining three. His evidence in this regard was evasive and at times inconsistent, characteristics that diminish the weight properly to be accorded to his expert testimony. [81] For these reasons, I accept Mr Woo’s evidence as more credible and reliable. His approach was consistent with the task at hand: to quantify, by application of an internationally recognised methodology, the value of the rights that were expropriated from Auspicious Journey. Mr Liew’s approach, by contrast, sought to address legal questions of causation and unjust enrichment that were outside his expertise, omitted material judicial findings, failed to provide any alternative valuation, and culminated in a conclusion that Auspicious Journey suffered no loss at all, a conclusion directly at odds with the findings of the High Court, the Court of Appeal, and the Federal Court that oppression had occurred. Where Mr Woo’s evidence is inconsistent with that of Mr Liew, I accept Mr Woo’s evidence. 48 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal The Black-Scholes Option Pricing Model [82] Hoe Leong submitted that the BSOP model is inappropriate for valuing options in the context of a private company in financial distress, and that the “commercial reality” test should override the financial valuation. Hoe Leong contended that the BSOP model fails to account for the dire financial condition of Semua International as at 31.12.2012 and that, in circumstances where an informed investor would not have paid any meaningful sum for the call options, the theoretical output of a mathematical model ought not to prevail. Hoe Leong further relied upon the findings across all three levels of the Malaysian judiciary that Semua International was in severe financial distress, and submitted that those findings compelled the conclusion that the call options had no commercial value. [83] Auspicious Journey submitted that the BSOP model is an internationally recognised and well-established methodology used globally for pricing options, and that it is not limited to listed securities. Auspicious Journey further submitted that the method of valuation adopted by Mr Woo was not credibly challenged by Hoe Leong in cross- examination. In particular, Mr Liew did not comment upon nor challenge Mr Woo’s calculations based on the BSOP model in any of his three reports, nor did he comment upon Mr Woo’s quantification of any of the five variables used in the model. Auspicious Journey additionally submitted that a company in dire financial straits is not to be equated with a 49 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal company which is no longer a going concern, and that the question of going-concern status is distinct from the question of financial distress. [84] I accept Auspicious Journey’s submission. The BSOP model is recommended by the IVS at paragraph 130.17 of IVS 200, which explains that “the OPM most frequently relies on the Black-Scholes option pricing model to determine the value associated with distributions above certain value thresholds.” It is a commonly and widely used model, and an acceptable method of valuation in Malaysia, as confirmed by Mr Woo in his evidence, when he stated: “It’s a commonly used method, widely used method as well. And as mentioned earlier, it’s also mentioned in International Valuation Standards.” The IVS further provides, at paragraph 130.5 of IVS 200, that for complex capital structures valuers may use any reasonable method to determine the value of equity or a particular class of equity, and that the option pricing method is one such recognised approach. While Mr Liew challenged the application of the BSOP model in this specific instance as erroneous, he did not dispute that it is a generally accepted methodology under the IVS. When pressed in cross- examination on his failure to suggest any alternative valuation model that would be more appropriate, Mr Liew acknowledged: “I could have, but I didn’t because I didn’t see the need to.” He further conceded that he had not specifically referred to which particular factor or variable of the BSOP model he was disputing in his reports, agreeing 50 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal with counsel that his criticisms in that regard were not expressly identified. In those circumstances, his objection to the BSOP model carries little weight. [85] An option has both intrinsic value and time value. The intrinsic value is the difference between the fair value of the underlying asset and the strike price; the time value arises from the optionality, that is, the flexibility of the option holder to choose when or whether to exercise. As Mr Woo explained, the value of an option depends on the probability that it will be profitable at some point during its life and on the flexibility to choose when to exercise. The BSOP model quantifies both components through five key variables: the strike price; the value of the underlying asset; the time to expiration; the risk-free rate of interest; and the volatility of the underlying asset. As Mr Woo explained in evidence (examination-in-chief), the time value component captures the benefit to the option holder of being able to wait for the most favourable conditions to exercise: “option holders can wait until a good time to exercise later. So there is a time value, which is added to the value of the intrinsic value. So in total, the entire intrinsic value plus the time value will be total value of the options.” The fact that an option holder chooses not to exercise at a particular point does not mean the option has no value. [86] Hoe Leong’s submission that Semua International’s financial distress negated the value of the call options is also contradicted by Mr Woo’s evidence that a company in 51 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal financial distress can remain a going concern. During re- examination by counsel for Auspicious Journey, Mr Woo agreed with the proposition that: “even though there is financial distress, even if there is financial distress, Semua International was still a going concern.” Mr Woo further stated that his report and opinion would not change even assuming, without admitting, that Semua International was in financial distress as at 31.12.2012. Significantly, Mr Liew himself conceded in cross-examination that Semua International’s audited financial statement for the financial year ended 31.12.2012 was prepared on a going-concern basis, agreeing with Auspicious Journey's counsel's proposition that: “in FY2012, Semua International was still considered as going concern.” The distinction between financial distress and going-concern status is material: financial distress denotes a weakness or constraint in a company’s financial position, but does not of itself extinguish going-concern status or deprive assets of value. Mr Liew’s conflation of the two concepts undermines the reliability of his position. [87] I reject Hoe Leong’s submission that the commercial reality test should override the financial valuation. Such an approach would render call options valueless whenever a company faces difficulties. This would create perverse incentives, allowing majority shareholders to expropriate valuable options by pointing to difficulties they themselves may have contributed to creating. The Federal Court’s finding that Semua International was in financial distress 52 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal does not negate the value of the call options, particularly when Hoe Leong itself saw sufficient value to agree to pay RM18.8 million for the 51% stake in Semua International through the oppressive 51% SPA. That transaction provides the most compelling evidence against Hoe Leong’s position: having structured the 51% SPA to acquire precisely those interests which were the subject of the call options, Hoe Leong cannot now be heard to say that those same interests had no commercial value. To accept such a submission would be to permit the very oppressor to benefit from the consequences of his own wrong. The BSOP model, applied by Mr Woo in a rigorous and methodical manner consistent with internationally recognised valuation standards, remains the appropriate methodology for quantifying the value of the expropriated call options. Quantum: Loss of the AJ Call Option (RM13,040,000.00) [88] Mr Woo valued the AJ Call Option at RM13.04 million as at 31.12.2012 by applying the BSOP model. His methodology was consistent with that adopted for the ER Call Option, the AJ Call Option being valued by reference to the same five variables, with the first and second variables adjusted to reflect the 49% shareholding in Semua International that Auspicious Journey would acquire upon exercise. The starting point for the valuation was the recognition that a Call Option Notice had been issued by Ebony Ritz to Sumatec on 6.12.2011 to exercise the ER Call Option for a 2% ordinary share stake in Semua International. As Mr Woo 53 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal explained, this meant that Auspicious Journey’s call option, if exercised, would result in Auspicious Journey acquiring only 49% rather than 51% of the ordinary shares in Semua International. [89] The five variables were applied as follows: a) a strike price of RM44.1 million, calculated by reference to the formula prescribed in clause 6.5 of the OFRA, expressed as A − B − C + D, where A equalled RM45.9 million (the purchase price for a 51% stake), B was inapplicable as Financial Shortfalls were separately claimed, C equalled RM1.8 million (being the purchase price of the ER Call Option, which was to be deducted in the event that the ER Call Option was exercised), and D was not relevant on the facts, yielding a strike price of RM44.1 million; b) a value of the underlying asset of RM54.7 million, being 49% of the equity value of Semua International, derived by applying a price-to-book multiple of 0.77 times to the audited net asset value of Semua International of RM144.1 million as at 31.12.2012, after appropriate discounts for lack of marketability, giving a total equity value of RM111.6 million, of which 49% amounted to RM54.7 million; 54 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal c) a time to expiration of 43 weeks or 0.83 years; d) a risk-free rate of interest derived from the Bank Negara Malaysia Treasury Bills rate; and e) a volatility measure of approximately 30%, benchmarked against comparable companies. [90] Mr Woo confirmed in evidence that the Net Asset Value of RM144.1 million as at 31.12.2012 had been audited and that, in providing an unqualified opinion on the audited financial statements of Semua International, management and the auditors would have duly considered whether there were any indicators of impairment and, finding none material, the net asset value stood as the appropriate foundation for the valuation. [91] The application of the five variables to the BSOP formula yielded a total value for the AJ Call Option of RM13.04 million. The intrinsic value of the option was RM10.60 million, being the excess of the fair value of the underlying asset (RM54.7 million) over the strike price (RM44.1 million). As Mr Woo explained in oral evidence, there was a positive intrinsic value to the option because the value of the shares the option holder would get exceeded the exercise price. The time value of the option, arising from the optionality and the remaining period of 43 weeks during which Auspicious Journey retained the right to choose 55 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal whether and when to exercise, added a further sum to yield the total BSOP value of RM13.04 million. [92] Mr Woo further clarified, both in his expert reports and in oral evidence, that this valuation and quantification would not change even if the assessment date were taken to be a date later than 31.12.2012. The reason, as he explained, was that the loss of Auspicious Journey in relation to the expropriated AJ Call Option had already crystallised around the proxy reference date of 31.12.2012 (the oppressive 51% SPA having been entered into on 21.12.2012), because the oppressive act had deprived Auspicious Journey of its right permanently. As he testified: “the lost already triggered in this case, because based on the judgment, that there’s an oppressive act, and the…there is an oppressive act, and the party is not going to work together anymore, based on the Plaintiff statements submitted. So, therefore, the ability to… I mean, the chance of exercise options is… will be zero.” [93] Mr Liew did not conduct any valuation of the AJ Call Option and did not ascribe any quantum to Auspicious Journey’s loss under this head. His position, as set out in paragraphs 92 to 94 of his First Report and paragraph 63(k) of his Third Report, was that the AJ Call Option had no commercial value as at 31.12.2012, and that Auspicious Journey would not have exercised the AJ Call Option in any event, such that any award of damages under this head would put Auspicious Journey in a better position than it would have been in but for the 51% SPA. In support of his conclusion of 56 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal no commercial value, Mr Liew advanced two reasons: first, that any interested investor could purchase shares in Semua International directly from the CLO Bondholders; and second, that the future profitability, financial sustainability, and going concern of Semua International were unknown. [94] He did not engage with the BSOP model by reference to the five variables and did not offer a quantified alternative. It was only in the course of cross-examination that Mr Liew maintained that the BSOP calculation for the AJ Call Option should have yielded zero and that the variables had been applied wrongly, positions that had not been articulated in any of his three reports. [95] I reject Mr Liew’s position for a number of reasons. First, his conclusion that Auspicious Journey would not have exercised the AJ Call Option in any event was not a matter properly within the province of an expert financial witness. It was a finding of fact as to Auspicious Journey’s intention, which it was not open to Mr Liew to make. As counsel for Auspicious Journey put it in cross-examination, and as Mr Liew was unable credibly to deny, his assumption was made in only one direction, in favour of Hoe Leong, and was based upon speculation rather than established facts or contemporaneous evidence. In particular, Mr Liew failed to account for the commercially rational basis upon which Auspicious Journey had declined to exercise the AJ Call Option prior to the 51% SPA, namely, that exercise at that 57 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal stage would have extinguished Ebony Ritz’s rights to the Profit Shortfall Guarantee under clause 3.2 of the OFRA, and that Auspicious Journey had never taken the position that it would not exercise the AJ Call Option in the future. Clause 3.2 reads: “Each of the Parties agrees that the FY2011 Financial Representation shall not be applicable if the Call Options are fully exercised by both the Purchaser under Clause 5 and Auspicious under Clause 6, respectively, on or prior to the Mandatory Exercise Date and before the date on which the consolidated audited accounts of the Semua Group for FY2011 are issued by the Semua Group’s auditors.” [96] Second, the two grounds upon which Mr Liew founded his conclusion of no commercial value were each demonstrated to be deficient in cross-examination. As to the first ground, the process by which an investor could acquire shares directly from CLO Bondholders was subject to a due process that had not been activated as at December 2012; Mr Liew accepted in cross-examination that there was a due process involved and that it was not simply open to any investor to purchase shares without more. As to the second ground, the uncertainty of Semua International’s future profitability, financial sustainability, and going concern is a factor that the BSOP model addresses through the volatility variable, and does not of itself render an option valueless; indeed, as has been observed at paragraph 85 above, the value of an option depends upon the probability that it will be profitable at some point during its life and upon the 58 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal flexibility to choose when to exercise, and a finding of financial difficulty does not negate that probability entirely. [97] Third, the proposition that the intention of the option holder to exercise or not is relevant to the valuation of the option was expressly rejected by Mr Woo. As he explained, “the options typically give the option holder the right to exercise or not the obligation … the intention of the option holder really … it is not, it is not being considered in the calculation of the option value.” The BSOP model does not require any inquiry into subjective intent; it values the right itself. [98] Fourth, Mr Liew’s belated challenge in cross examination to variables (b) and (e), namely the underlying asset value and the volatility measure, was not made out in his reports, and he conceded in cross examination that he had no issue with the other three variables. His late attempt to impugn the application of the BSOP model, without having offered any quantified alternative himself, did not advance the analysis. On any view, Mr Liew’s global conclusion that Auspicious Journey suffered no loss whatsoever under this head is inconsistent with the concurrent findings of all three levels of the Malaysian judiciary that oppression occurred through the expropriation of the AJ Call Option. [99] I accept Mr Woo’s valuation of the AJ Call Option at RM13,040,000.00. 59 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal Quantum: Diminution in Value of Auspicious Journey’s Investment in Ebony Ritz (RM5,513,000.00) [100] Mr Woo quantified the total diminution in value of Auspicious Journey’s investment in Ebony Ritz at RM5.51 million (subsequently refined to RM5,513,000.00 in submissions), representing the differences in equity value of Ebony Ritz attributable to Auspicious Journey arising from two accepted components. The first was the loss of the ER Call Option attributable to Auspicious Journey, quantified at RM0.11 million. Mr Woo applied the BSOP model, using a strike price of RM1.8 million and a fair value of the underlying asset, being 2% of Semua International’s equity value, of RM2.2 million. The total value of the ER Call Option was thereby computed at RM0.53 million, of which Auspicious Journey’s 20% proportionate share was RM0.11 million. [101] The second and larger component was the loss of Auspicious Journey’s proportionate interest in the Profit Shortfall Guarantee, quantified at RM5.40 million. The Profit Shortfall Guarantee was triggered because Semua International’s audited profit after tax for the financial year 2011 was only RM14,189,321, well below the guaranteed amount of RM31 million. Applying the formula prescribed in clause 3.1 of the OFRA, Mr Woo calculated the total financial shortfall at RM27,017,000.00, of which Auspicious Journey’s 20% share was RM5,403,000.00 (rounded to RM5.40 million). As explained by Mr Woo in his first expert 60 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal report at paragraph 5.6.2, the relinquishment of the Profit Shortfall Guarantee caused a loss in the cash flow and potential cash flow in Ebony Ritz, resulting in a lower net asset value, and accordingly, a lower value of Auspicious Journey’s investment in Ebony Ritz. In contrast, Mr Liew did not undertake any valuation exercise in respect of this head of claim and did not quantify or ascribe any value to the diminution in value of Auspicious Journey’s investment in Ebony Ritz. [102] Hoe Leong raised two broad objections to this head of claim. The first was that Auspicious Journey’s losses under this head are in substance losses suffered by Ebony Ritz and are therefore barred by the reflective loss principle. Hoe Leong relied on the Federal Court’s observations at paragraphs 159 to 160 of its Grounds of Judgment that “many of the losses claimed by Auspicious Journey did not have a direct and personal impact on it in its capacity as minority shareholder of Ebony Ritz” and that “in most instances, the losses claimed are, in actuality, losses suffered by Ebony Ritz.” Hoe Leong further relied on admissions made by Mr Woo in cross-examination. When asked whether Auspicious Journey’s loss through the Profit Shortfall Guarantee is reflected through its shareholding in Ebony Ritz, Mr Woo confirmed: “Correct.” Similarly, when pressed as to whether the profit shortfall guarantee was ultimately due from Sumatec to Ebony Ritz and not from Hoe Leong to Auspicious Journey, Mr Woo conceded: “That’s correct.” 61 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [103] I have, however, dealt with the reflective loss objection comprehensively at paragraphs 28 to 41 of this Judgment and rejected it. As the Federal Court made clear in Low Cheng Teik & Ors v Low Ean Nee, “the reflective loss principle may not come into play where, for example, the loss in the value of the share capital or the loss of dividends is due to acts or omissions by the majority or by persons in control of the company where such loss is a result of oppression, unfair discrimination or otherwise prejudicial conduct against the shareholder himself to the exclusion of the other shareholders.” The loss of the Profit Shortfall Guarantee was caused by the 51% SPA, which required Ebony Ritz to waive RM27 million in enforceable debt in order to facilitate a transaction that benefited Hoe Leong alone. That loss was directed personally against Auspicious Journey as the excluded minority shareholder and constitutes a personal and separate loss for the purposes of Low Cheng Teik. The concessions made by Mr Woo in cross-examination do not detract from this conclusion: they establish the mechanism of the loss, not its character. [104] Hoe Leong’s second objection was that the Profit Shortfall Guarantee was not in fact waived and that Ebony Ritz had successfully claimed it in proceedings commenced in the High Court of the Republic of Singapore (Suit No. HC/S 534/2016). Hoe Leong relied on the Singapore High Court judgment dated 3.10.2018 and the Singapore Court of Appeal’s dismissal of Sumatec’s appeal on 22.2.2019, pursuant to which Ebony Ritz was awarded sums 62 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal amounting to RM47,832,598.86 and S$101,100.00. Hoe Leong argued that the existence of this judgment demonstrated that there had been no relinquishment of the Profit Shortfall Guarantee and that the quantification of loss under this head was accordingly without basis. This submission is not accepted. It directly contradicts the High Court’s finding at the liability stage, affirmed through the Court of Appeal and Federal Court, that the Profit Shortfall Guarantee was relinquished by reason of the 51% SPA, which constituted one of the five established heads of oppression. It is not open to Hoe Leong to revisit that finding in these assessment proceedings. [105] Moreover, the Singapore proceedings were commenced by Ebony Ritz on 24.5.2016, about three and a half years after the 51% SPA dated 21.12.2012, and the Singapore judgment was obtained more than five years after the date of oppression. That judgment is an event subsequent to the date of oppression and, in my judgment, cannot be taken into account in assessing the losses as at the assessment date. It was Mr Woo’s evidence, confirmed in cross- examination, that the quantification of the Profit Shortfall Guarantee loss would not change even if the assessment date were taken as later than 31.12.2012, because the triggering event, Semua International’s audited profit after tax of RM14,189,321 for financial year 2011 falling below the guaranteed amount of RM31 million, had already occurred. 63 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [106] As to Hoe Leong’s further argument that to allow this head of damages would give rise to double recovery, I am satisfied that no such risk exists. Ebony Ritz has been in liquidation since 2016 and has not commenced, and is unlikely ever to commence, proceedings against Hoe Leong in respect of these losses. Sumatec, against whom the Singapore judgment was obtained, has itself been wound up by order of court. On 6.3.2020, the solicitors for Hong Leong wrote to Ebony Ritz’s official receiver requesting that she file a proof of debt for the sum of RM48,136,261.00 (comprising RM47,832,598.86 and S$101,100.00) in Sumatec’s liquidation. The Singapore judgment therefore remains wholly unsatisfied and there is no evidence that any recovery has been made by Ebony Ritz in liquidation in respect of these losses. In the circumstances, there is no basis for reducing or extinguishing Auspicious Journey’s damages on account of any recovery that Ebony Ritz may theoretically have obtained from Sumatec. [107] I accept Mr Woo’s quantification of the diminution in value of Auspicious Journey’s investment in Ebony Ritz at RM5,513,000.00, comprising RM0.11 million for the loss of the ER Call Option attributable to Auspicious Journey and RM5,403,000.00 (rounded to RM5.40 million) for the loss of Auspicious Journey’s proportionate interest in the Profit Shortfall Guarantee. 64 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal Causation [108] Hoe Leong submitted that no causation was shown between the oppressive acts and the claimed damages. In support of this position, Hoe Leong relied upon two principal planks. First, Hoe Leong placed reliance on the evidence of its expert, Mr Liew, who made extensive findings in his expert reports on the purported absence of a “causal link” between the 51% SPA and the losses claimed by Auspicious Journey. Mr Liew’s position, as expressed in his reports and maintained in cross-examination, was that no direct causal link had been established between any of the heads of oppression arising from the 51% SPA and the damages sought by Auspicious Journey. Secondly, Hoe Leong relied upon the Federal Court’s observations, in particular, at paragraph 160 of its Grounds of Judgment, that “many of the losses claimed by Auspicious Journey did not have a direct and personal impact on it in its capacity as minority shareholder of Ebony Ritz” and that “while the fact of the occurrence of the events giving rise to the losses are relevant for the purposes of establishing oppression, detriment or prejudice, this does not translate into actual loss suffered by Auspicious Journey.” Hoe Leong further invoked the Federal Court’s observations that Auspicious Journey was not prepared to invest further monies in the joint venture and had even expressly refused to do so when called upon to make its 20% contribution for Ebony Ritz to acquire the 2% shares in Semua International, contending 65 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal that the said call options would in any event not have been exercised. [109] Auspicious Journey submitted that the test of causation is plainly satisfied. The 51% SPA was, as affirmed at all three judicial levels, the subject matter of the five established heads of oppression. It was the 51% SPA that directly caused the expropriation of the AJ Call Option, the ER Call Option, the Profit Shortfall Guarantee entitlement, the dividend rights, and the imposition of disadvantageous liabilities on Ebony Ritz. Auspicious Journey further submitted that the question of causation is a legal question for the Court to determine and falls outside the expertise and purview of a financial expert. On the Federal Court’s observations concerning Auspicious Journey’s unwillingness to invest further, Auspicious Journey contended that such observations were obiter dicta and did not derogate from the established finding that the five heads of oppression arose from the 51% SPA. As to Mr Liew’s “causal link” findings, Auspicious Journey submitted that his analysis was premised upon an inapplicable accounting concept, namely the “Matching Concept”, and was wholly untenable as a basis for determining causation in legal proceedings. [110] I find that causation has been clearly established. The “but for” test is satisfied. But for the 51% SPA, Auspicious Journey would have retained its valuable call options and its proportionate interest in the Profit Shortfall Guarantee. The 66 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal 51% SPA was the direct and operative cause of the expropriation of these rights. This has been conclusively determined at all three judicial levels. The five pleaded heads of oppression are not in dispute and were perpetrated by Hoe Leong, which is accordingly liable for them. In particular, the extinguishment and removal of Auspicious Journey’s 49% option was caused by Hoe Leong. The only remaining question is the valuation of that option. [111] The link between the oppressive conduct and the losses claimed admits of no serious controversy. The five heads of oppression are each specifically referable to a provision or consequence of the 51% SPA: the relinquishment of the Profit Shortfall Guarantee amounting to approximately RM27 million; the assignment of dividends totalling RM12.1 million; the indemnity imposed on Ebony Ritz; and the extinguishment of both call options. Each loss flows directly and inexorably from the impugned transaction. [112] The question of causation is a legal question for the Court, not a financial concept for an expert to determine. Mr Liew, notwithstanding his stated awareness that he should confine himself to his expertise and not express opinions on legal issues, made extensive findings on “causal link” throughout all three of his expert reports. When pressed in cross-examination to explain the basis of his “causal link” analysis, Mr Liew sought to justify it by reference to the accounting “Matching Concept”, explaining his position in 67 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal the following terms: When challenged during cross- examination on the foundation of his “causal link” analysis, Mr Liew attempted to anchor his reasoning in the accounting principle known as the “Matching Concept.” He explained that, in quantifying a monetary sum, it was necessary to identify the source of the underlying information and determine how it translated into a numerical figure. In his view, this required matching the costs incurred by a company against the consideration received, in accordance with the fundamental accounting notion that corresponding debits and credits must align. [113] This justification is plainly untenable. As stated above, the accounting principle that “every debit has a credit” bears no resemblance to the legal question of whether a particular breach caused a particular head of loss. Mr Liew further conceded, when pressed, that the ultimate determination on causal link is for the Court to decide: “KY: And I also suggest to you that the causal link, assessment of causal link, that is for the Court to decide. DW1 Ultimately yes, we have to defer it to the wisdom of this honourable Court, yes.” [114] Mr Liew’s findings on “causal link” in his expert reports accordingly lack foundation and fall outside his expertise and purview as a financial expert. I give those findings no weight. 68 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [115] I also address Hoe Leong’s reliance on the Federal Court’s observations at paragraph 160 of its Grounds of Judgment. Those observations were made in the context of the reflective loss principle and the Federal Court’s general remarks about the nature of Auspicious Journey’s losses. They do not constitute a finding that no damages are recoverable by Auspicious Journey, nor do they alter the established causal nexus between the 51% SPA and each of the five heads of oppression. The further observation that Auspicious Journey was unwilling to invest further in the joint venture does not negate the intrinsic value of the contractual rights that were expropriated as at 21.12.2012. A party’s subsequent commercial decision not to invest further, particularly under conditions of broken mutual trust arising directly from oppression, cannot retrospectively extinguish the value of rights that existed and were alive at the date of the oppressive act. The Federal Court’s observations were obiter in nature and are not to be read as depriving Auspicious Journey of its entitlement to damages otherwise properly established. [116] I also note that Hoe Leong cited the case of National Feedlot Corporation Sdn Bhd & Ors v Public Bank Bhd [2023] MLJU 2023 (Court of Appeal, per S Nantha Balan JCA). Hoe Leong relied on this authority to argue that because Auspicious Journey purportedly failed to prove its losses, only nominal damages should be awarded. That case does not advance Hoe Leong’s position in this specific context. In National Feedlot, the Court awarded nominal 69 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal damages because the plaintiff entirely failed to provide a basis for the ascertainment of the amount of loss suffered. In the present case, however, Auspicious Journey has successfully established both the mechanism of its loss and quantified the actual damages suffered through the accepted expert evidence of Mr Woo. The citation of that authority is, with respect, misdirected, and it does not assist Hoe Leong in establishing that Auspicious Journey is entitled to merely nominal damages for the identified heads of oppression. Unjust Enrichment [117] Hoe Leong submitted that permitting the award of damages would constitute unjust enrichment, allowing Auspicious Journey to divest itself of a bad investment in a failed joint venture in a declining shipping industry. In advancing this submission, Hoe Leong relied upon the findings of the courts at the liability stage which characterised Ebony Ritz as a “patently failed joint venture” in a business that was under severe financial distress, with Hoe Leong having injected in excess of RM38 million into Semua International as majority shareholder. Hoe Leong further relied upon the Federal Court’s observations at page [153], made in the context of whether a share buy-out order should be granted, that: “In asking for a buy-out of its shareholding in Ebony Ritz, it appears that Auspicious Journey is seeking, in effect, to escape from a bad bargain, or to recoup its 70 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal investment in the joint-venture with Hoe Leong. The risk factor ancillary to an investment cannot be ignored. There is always a risk that an investment may not pan out in the way it was intended. In our view, ordering a share buy-out would be tantamount to insulating Auspicious Journey from the risk that their capital was subject to. This is certainly not what s 346 was meant to protect against.” [118] Hoe Leong also relied upon the concurrence of the shipping industry’s deteriorating financial performance, as acknowledged by Auspicious Journey’s own expert, Mr Woo of Deloitte, who agreed during cross-examination that the shipping industry was “experiencing deteriorating financial performance, similar to SI.” Taken together, Hoe Leong submitted that any award of damages would not represent compensation for genuine loss but would instead operate to indemnify Auspicious Journey from investment risks borne by all investors in the shipping industry at the material time. [119] Auspicious Journey submitted that the unjust enrichment argument is wholly misconceived. Auspicious Journey is not seeking to recoup a failed investment or to escape a bad bargain. It seeks compensation for specific and valuable contractual rights that were wrongfully expropriated through Hoe Leong’s oppressive conduct, namely, the AJ Call Option, the ER Call Option, and the Profit Shortfall Guarantee, all of which carried measurable economic value as at December 2012. Auspicious Journey further submitted that there is no factual basis for any unjust enrichment in the circumstances. Since the commencement of these proceedings in 2013, Auspicious Journey has not received 71 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal any compensation whatsoever. The only monetary award made to it was the costs order of the High Court. [120] To hold that no damages are recoverable after concurrent findings of oppression at all three levels of the Malaysian judiciary would, in the submission of Auspicious Journey, effectively bestow upon it a Pyrrhic victory in contradiction of the underlying equitable principles governing the grant of remedies in oppression proceedings. Auspicious Journey also drew attention to the fact that it had deliberately confined its claim to the five express heads of oppression identified by the courts, declining even to claim damages under the fifth head of oppression, namely the provision of an indemnity by Ebony Ritz, on the basis that its own expert had assessed no quantifiable loss thereunder. This restraint, Auspicious Journey submitted, is inconsistent with any suggestion that it is seeking a windfall. [121] I reject Hoe Leong’s submission. The distinction that must be maintained is between, on the one hand, compensation for the expropriation of specific and enforceable contractual rights and, on the other, the insulation of a party from the ordinary investment risks attending a commercial venture. Auspicious Journey is not claiming for the loss of its equity investment as such; it is claiming for the extinguishment of identifiable contractual entitlements, the call options and the Profit Shortfall Guarantee, which were separate from and independent of the general fortunes of the joint venture. These were enforceable contractual rights with measurable 72 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal value as at December 2012, and it was the 51% SPA that directly extinguished them. The argument that Semua International was in financial distress and that the options were therefore worthless at that time is squarely answered by Hoe Leong’s own conduct. Hoe Leong paid RM18.8 million to acquire the 51% stake in Semua International on 21.12.2012, being RM1.8 million for the 2% shares transferred directly to Hoe Leong and RM17 million for the 49% shares to be acquired by its nominee, Setinggi Holdings. More significantly, Hoe Leong made a public announcement to the Singapore Stock Exchange on that same date in which it described the transaction as “an excellent and timely opportunity” which “will further its ongoing objective of expanding its current scope of business activities, sourcing for alternative consistent sources of revenue and improving returns to the Company’s shareholders.” A contemporaneous media release of the same date stated that Hoe Leong was “very excited with the opportunity” and that it was “confident Semua will continue to generate steady revenue stream that contribute to the Group’s bottom line.” Hoe Leong does not suggest that these public statements were false. Hoe Leong voluntarily injected funds into the transaction. There was no breach on the part of Auspicious Journey; it performed all obligations incumbent upon it. The decision to commit further capital was Hoe Leong’s own commercial choice. Mr James Kuah himself conceded that this was not a case of throwing good money after bad, but a considered investment made 73 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal because Hoe Leong regarded the business as viable and profitable. [122] James Kuah, who conducted the 51% SPA on behalf of Hoe Leong, admitted under cross-examination at the liability stage that Hoe Leong had struck a good deal, that the purchase price was in the interest of Hoe Leong, and that in November 2012, a mere month before the 51% SPA was executed, he had held the view that Semua International was going to be profitable in 2013. Hoe Leong’s own factual witness, Mr Yeo Puay Hin (DW2), accepted that these admissions were made and that Hoe Leong held the view as at December 2012 that the transaction was a good deal and was in the best interest of Hoe Leong. A party who pays RM18.8 million to acquire a 51% stake in a business on the basis of a publicly announced conviction that it is viable and profitable cannot, in these same proceedings, credibly maintain that the contractual rights expropriated in the course of that same transaction were worthless. [123] The Federal Court’s observations must be properly understood in their respective contexts. The observation that Auspicious Journey was unwilling to “throw good money after bad” was made in the specific context of determining whether personal liability ought to be visited upon the directors of Ebony Ritz. The further observation by the Federal Court, that a share buy out order would be tantamount to insulating Auspicious Journey from the investment risks it had voluntarily assumed and would not 74 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal yield a fair price given that Ebony Ritz was a failed joint venture, was made in the specific context of whether a buy out remedy ought to be granted under section 181 of the Act. That question has been conclusively determined against Auspicious Journey, and no share buy-out has been ordered. [124] The present proceedings are concerned with a materially different question, namely the quantum of compensation due for specific contractual rights that were wrongfully expropriated by Hoe Leong’s oppressive conduct. The exposure of Auspicious Journey to the general investment risks of the shipping industry is an entirely separate matter from the fact that Hoe Leong wrongfully took away Auspicious Journey’s rights under the call options and the Profit Shortfall Guarantee. It is further to be noted that Mr Liew himself, when pressed in cross-examination, acknowledged that the question of whether unjust enrichment has occurred is ultimately a legal question for the Court and that he had used the term in the context of the causal link analysis rather than in any strictly legal sense. His findings on unjust enrichment in his expert reports accordingly carry no independent weight as a legal defence. [125] The commercial decision by Auspicious Journey not to commit further capital to the joint venture, made in the face of sustained oppression and the complete breakdown of mutual trust and confidence between the joint venture 75 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal parties, does not extinguish the intrinsic value of the contractual rights that were expropriated. Auspicious Journey’s unwillingness to expend further monies did not diminish or destroy the call options or the Profit Shortfall Guarantee. Those rights continued to exist and to carry economic value until they were extinguished by the 51% SPA. The decline of a party’s willingness to invest further under conditions of oppression does not disentitle that party from compensation when valuable rights are wrongfully taken away. To hold otherwise would produce the perverse result that the oppressor benefits from the very oppression it has perpetrated, in that the more oppressive its conduct, the greater the disincentive to invest and the stronger the argument that the expropriated rights were commercially worthless. No principle of law supports that conclusion. Accordingly, I find that there is no unjust enrichment in awarding Auspicious Journey the damages assessed in these proceedings, and Hoe Leong’s submission on this ground is dismissed. Legal Costs and Expenses (SGD164,918.82 and RM31,800.00) [126] Auspicious Journey claimed SGD164,918.82 and RM31,800.00 for costs and expenses incurred for legal advice obtained by reason of Hoe Leong’s acts of oppression, which are not related to the proceedings before this Court. Specifically, the sum of SGD164,918.82 represents fees paid to Messrs Drew & Napier LLC, and the sum of RM31,800.00 represents fees paid to Messrs Cheow 76 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal Wee, for external legal advice/advisory. The particulars of these costs are set out in paragraphs 81 to 84 of Auspicious Journey’s 1st Affidavit dated 9.5.2022 at Enclosure 189 and the supporting vouchers at Enclosure 190. Auspicious Journey was mindful of the Federal Court’s decision in Golden Star & Ors v Ling Peek Hoe & Anor and another appeal [2024] 4 MLJ 749, which held that legal costs incurred in the same proceedings between the same parties are not recoverable as damages. The Federal Court stated that “[t]here is a clear costs regime in O 59 of the Rules of Court 2012 and... the legal fees, charges, retainer, refresher or any other charges associated with the litigation between the parties at the High Court (and likewise at the Federal Court and Court of Appeal) are not claimable as damages.” Consistently with that authority, Auspicious Journey expressly abandoned any claim for legal costs incurred in the oppression proceedings themselves, confining this head of claim to the two items of external legal advice particularised above. [127] Hoe Leong resisted this claim on several grounds. First, it relied on Golden Star (supra) and submitted that no legal fees or incidental expenses are recoverable as damages in this suit. Second, it pointed out that Auspicious Journey had never prayed for costs on a solicitor-client basis in the Originating Summons, that this Court had already awarded costs of RM300,000 at the liability stage whilst the Court of Appeal and the Federal Court made no order as to costs, and that Auspicious Journey had not appealed against any 77 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal of those costs orders, rendering them final. Third, Hoe Leong submitted that the claim was an attempt to relitigate a matter conclusively determined by the courts. Fourth, and separately, it contended that the issue of costs had not been put to DW1 and DW2 during cross-examination, relying on Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and another appeal [1995] 2 MLJ 770, which it submitted disentitled Auspicious Journey from pursuing the claim. [128] I accept that these costs were reasonably incurred as a direct consequence of the oppression and are properly recoverable as damages. The objections raised by Hoe Leong, whilst comprehensively advanced, do not withstand scrutiny when directed at the narrow residual claim that Auspicious Journey has maintained. The authority of Golden Star does not preclude recovery of the sums claimed here. That decision is concerned with legal fees incurred in the litigation between the same parties, costs which, as the Federal Court correctly observed, are governed by the costs regime under Order 59 and are not to be re-characterised as damages. Auspicious Journey explicitly conceded that principle and abandoned the bulk of its earlier claims under paragraph 29B of the Re-Amended Points of Claim, including its claims in respect of costs incurred at the High Court, Court of Appeal, Federal Court, and the present assessment proceedings. What remains are sums paid to external solicitors for advice obtained wholly outside and independently of the proceedings before 78 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal this Court, namely external legal advice and/or advisory services obtained from Messrs Drew & Napier LLC and Messrs Cheow Wee. I am satisfied that the need for such external legal advice was a direct consequence of Hoe Leong’s oppressive conduct. [129] The argument that no solicitor-client costs order was sought or made is equally inapposite: the claim is not for costs on a solicitor-client basis in these proceedings, but for out-of- pocket disbursements caused by the oppression. As Auspicious Journey’s factual witness, Andy Kuek (PW1), testified, the costs were real and transparently documented. The objection founded on Aik Ming (supra) is likewise inapplicable. That principle requires that facts which a party intends to rely upon should be put to the opposing witnesses in cross-examination. This head of claim, however, is founded entirely on documentary evidence in the form of affidavit evidence and supporting vouchers, and does not depend upon nor require any expert evidence from Mr Liew (DW1) or factual evidence from DW2. There was accordingly no obligation to put the matter to those witnesses, and the failure to do so does not preclude the claim. This head of claim is separate from party-and-party costs in the present proceedings and represents genuine out-of-pocket losses suffered by Auspicious Journey as a direct and proximate result of Hoe Leong’s oppressive acts. 79 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal COSTS [130] In addressing the issue of costs, Auspicious Journey sought RM750,000 for the assessment proceedings, alongside full reimbursement of expert fees amounting to RM899,786.60. Hoe Leong opposed these sums, characterising the assessment proceedings as a straightforward matter of calculation and a far smaller component than the liability stage, proposing instead a combined sum of RM50,000 for both costs and expert fees. I reject Hoe Leong’s proposition of RM50,000 as it is patently unreasonable and fails to account for the substantial out-of-pocket expenses and the sheer volume of work involved. [131] Regarding the general costs of the assessment proceedings, I am mindful that the trial spanned 17 non- consecutive days, which exactly mirrors the duration of the trial at the liability stage. Furthermore, this assessment was not a mere arithmetical exercise; it involved complex legal questions and highly technical financial valuation principles, requiring the Court and parties to navigate extensive documentary evidence, including numerous factual and expert affidavits, as well as reused notes of proceedings from the liability trial. While the subject matter differs from the liability phase, it was conducted with equal intensity. That being said, I agree that the RM750,000 sought by Auspicious Journey is excessive. I find that the base figure should be benchmarked against the costs awarded in the liability proceedings. Given the equal number of trial days 80 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal and comparable intensity, I fix the costs of the assessment proceedings at RM300,000. [132] In respect of the reimbursement for expert fees, I am satisfied that the engagement of an independent financial expert was absolutely necessary. This assessment involved complex financial theory and recognised valuation methodologies, such as the Black-Scholes option pricing model, which are highly technical and unusual for a standard assessment of damages. The evidence provided by Auspicious Journey’s expert, Mr Woo, was of immense assistance to the Court and was ultimately accepted, whereas the opposing expert evidence was rejected. The escalation in expert fees was also largely driven by the necessity of filing multiple rebuttals to address the extensive affidavits filed by Hoe Leong’s expert. However, I am not prepared to award the full claimed sum of nearly RM900,000. I find that a 50% reduction is reasonable in the circumstances, and I therefore fix the reimbursement for expert fees at RM450,000. [133] Both the assessment costs of RM300,000 and the expert fee reimbursement of RM450,000 are subject to taxation by the Allocatur, and are ordered to be paid by Hoe Leong to Auspicious Journey. 81 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal CONCLUSION AND ORDER [134] For the foregoing reasons, I find that Auspicious Journey has established on the evidence that it suffered quantifiable loss as a direct result of Hoe Leong’s oppressive conduct in executing the 51% SPA dated 21.12.2012. The findings of oppression made by the learned High Court Judge have been affirmed by both the Court of Appeal on 21.5.2018 and the Federal Court on 9.3.2021, and those findings are binding upon this Court in these assessment proceedings. [135] I accept the evidence of Mr Woo of Deloitte and apply the BSOP methodology for the valuation of the expropriated call options. I reject the evidence of Mr Liew of Ferrier Hodgson insofar as it concludes that the expropriated rights had no value and that Auspicious Journey suffered no damages. [136] This Court exercises the wide discretion vested in it by section 181 of the Act, as recognised by the Federal Court in Koh Jui Hiong v Ki Tak Sang, to fashion relief that is just and equitable to remedy the unfairness suffered by this minority shareholder. The purpose of section 181 is precisely to provide remedies to minority shareholders who have been oppressed, including monetary compensation where appropriate, and this purpose would be defeated if the reflective loss principle operated as a complete bar. 82 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal [137] Accordingly, this Court orders as follows: a) General damages in the sum of RM18,553,000.00 shall be paid by Hoe Leong to Auspicious Journey, comprising RM13,040,000.00 for the loss of the AJ 49% Call Option and RM5,513,000.00 for the diminution in value of Auspicious Journey’s investment in Ebony Ritz (which encompasses the loss of proportionate interest in the Profit Shortfall Guarantee valued at RM5.40 million and the loss of the ER 2% Call Option valued at RM0.11 million); b) Additional damages of SGD164,918.82 and RM31,800.00 shall be paid by Hoe Leong to Auspicious Journey for legal costs and expenses reasonably incurred as a direct consequence of the oppression; c) Interest at 5% per annum on the principal sums awarded in orders (a) and (b) above from 3.8.2016 (being the date of the High Court Order) until full payment and realisation; d) Costs of the assessment proceedings fixed at RM300,000.00 (matching the liability stage costs given equal number of trial days), subject to taxation by the Allocatur, to be paid by Hoe Leong to Auspicious Journey; 83 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal e) Reimbursement of expert fees incurred by Auspicious Journey fixed at RM450,000.00 (being 50% of the RM899,786.60 claimed), to be paid by Hoe Leong to Auspicious Journey; and f) Liberty to apply for further directions in relation to the implementation of this Judgment. 23 February 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Robert Low with Karen Yong and Chong Lip Yi (Messrs Robert Low & Ooi) For the 2nd Rachel Ng Li Hui Defendant: (Messrs. Thomas Philip) 84 S/N 4aHGH0XyekeNLBNvbK74w **Note : Serial number will be used to verify the originality of this document via eFILING portal