1. KAM THAI ENG LINDA (NRIC No.: 580118-10-5048) 2. EDWARD KAM TAI KEONG (NRIC No.: 590701-10-6143) 1. TAN SRI DATO’ KAM WOON WAH (NRIC No.: 291129-10-5173) 2. DATO’ SRI ANDREW KAM TAI YEOW (NRIC No.: 620202-10-6039) 3. RAUB MINING & DEVELO

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) IN THE FEDERAL TERRITORY, MALAYSIA ORIGINATING SUMMONS NO. WA-24NCC-119-03/2019 In the matter of Companies Act 2016, in particular Section 228 And In the matter of the Contracts Act 1950 And In the matter of an Agreement dated 16.01.2017 between Tan Sri Dato’ Kam Woon Wah and Dato’ Sri Andrew Kam Tai Yeow And In the matter of Rules of Court 2012 BETWEEN 1. KAM THAI ENG LINDA (NRIC No.: 580118-10-5048) 2. EDWARD KAM TAI KEONG (NRIC No.: 590701-10-6143) … PLAINTIFFS AND 1. TAN SRI DATO’ KAM WOON WAH (NRIC No.: 291129-10-5173) 2. DATO’ SRI ANDREW KAM TAI YEOW (NRIC No.: 620202-10-6039) 1 3. RAUB MINING & DEVELOPMENT COMPANY SDN BHD (Company No.: 4708-A) 4. RAUB OIL MILL SDN BHD (Company No.: 26175-P) 5. WAHBUNGA REALTY SDN BHD (Company No.: 22613-P) 6. YUM SDN BHD (Company No.: 4076-A) 7. BERJAYA REALTY SDN BHD (Company No.: 14266-A) 8. UNITED RAUB OIL PALMS SDN BHD (Company No.: 6598-V) 9. COASTAL REALTY SDN BHD (Company No.: 23606-X) … DEFENDANTS GROUNDS OF JUDGMENT (No. 2) Introduction [1] This judgment deals with the principle of judicial estoppel and whether it is permissible to move an action under section 228 of the Companies Act 2016 (‘CA 2016’) instead of section 132E of the Companies Act 1965 (‘CA 1965’) in respect of an agreement that was executed before the commencement of CA 2016. 2 Background Facts [2] In this Originating Summons No: WA-24NCC-119-03/2019 (‘OS 119’), Kam Thai Eng Linda (‘Linda Kam’) and Edward Kam Tai Keong (‘Edward Kam’) (collectively ‘the Plaintiffs’) in their capacity as directors of Raub Mining & Development Company Sdn Bhd (‘RMDC’), Raub Oil Mill Sdn Bhd (‘ROM’), Wahbunga Realty Sdn Bhd (‘WRSB’), Yum Sdn Bhd (‘YSB’), Berjaya Realty Sdn Bhd (‘BRSB’), United Raub Oil Palms Sdn Bhd (‘UROP’) and Costal Realty Sdn Bhd (‘CRSB’) (‘collectively referred as ‘the 3rd. to 9th. Defendants’) seek, inter alia : a. a declaration that the agreement dated 16.1.2017 entered between Tan Sri Dato’ Kam Woon Wah (‘Tan Sri Kam’) (the 1st. Defendant) and Dato’ Sri Andrew Kam Tai Yeow (‘Dato’ Sri Andrew Kam’) (the 2nd. Defendant) (‘the Impugned Agreement’) is in contravention of section 228 of the CA 2016 and is therefore illegal, null and void and unenforceable; and b. an injunction under section 228(6) to restrain WRSB, YSB, BRSB, and UROP (collectively referred as ‘the 5th to 8th Defendants’) from carrying into effect the arrangement entered pursuant to the Impugned Agreement insofar where the same is concerned with the registered shareholding of WRSB, YSB, BRSB, and UROP in RMDC. [3] The Plaintiffs’ OS 119 is supported by Tan Sri Kam. 3 [4] Section 228 of the CA 2016 provides: ‘228 Transactions with directors, substantial shareholders or connected persons (1) Subject to subsection (2) and section 229, a company shall not enter or carry into effect any arrangement or transaction where a director or a substantial shareholder of the company or its holding company, or its subsidiary, or a person connected with a director or substantial shareholder – (a) acquires or is to acquire shares or non-cash assets of the requisite value, from the company; or (b) disposes of or is to dispose of shares or non-cash assets of the requisite value, to the company, unless – (A) the entering into the arrangement or transaction is made subject to the approval of shareholders at a general meeting; or (B) the carrying into effect of the arrangement or transaction has been approved by shareholders at a general meeting. (2) An arrangement or transaction which is carried into effect in contravention of subsection (1) shall be void unless there is prior approval of the arrangement or transaction – (a) by a resolution of the company; or 4 (b) by a resolution of the holding company, if the arrangement or transaction is in favour of a director or substantial shareholder of its holding company or person connected with such director or substantial shareholder. : (6) The Court may, on the application of any member or director of the company, restrain the company from entering or carrying into effect an arrangement or transaction in contravention of subsection (1).’ [5] Tan Sri Kam directly holds 7 shares in RMDC and indirectly through the 5th to the 8th Defendants (where Tan Sri Kam is the majority shareholder in these companies) holds the following shares in RMDC: WRSB 2,169 shares YSB 1,796 shares BRSB 1,342 shares UROP 904 shares [6] The directors of the 5th to the 8th Defendants are as follows: WRSB Tan Sri Kam, Dato Sri Andrew Kam Linda Kam, Edward Kam YSB Tan Sri Kam, Dato Sri Andrew Kam Linda Kam, Edward Kam 5 BRSB Tan Sri Kam, Dato Sri Andrew Kam Linda Kam, Edward Kam UROP Tan Sri Kam, Dato Sri Andrew Kam Linda Kam, Edward Kam, Tai Swe Chong [7] Although the parties stated in the Impugned Agreement are only between Tan Sri Kam and Dato’ Sri Andrew Kam, learned counsel for the Plaintiffs contended that Dato’ Sri Andrew Kam is bound by the position that his counsel has taken before the Court in the Civil Suit No. WA-22NCC-352-09/2017 (‘the Main Suit’), which is an action taken out by Dato’ Sri Andrew Kam against, inter alia, Tan Sri Kam and the 3rd to 9th Defendants herein to enforce the Impugned Agreement. [8] More specifically, in the Main Suit, after Dato’ Sri Andrew Kam had filed the Main Suit, applications were taken out by all the defendants therein to strike out the Main Suit (‘the Striking Out Applications’). [9] The High Court in the Main Suit had dismissed these Striking Out Applications. Being dissatisfied with the decisions, all the defendants appealed against the dismissal to the Court of Appeal where the matters are now pending (‘the Striking Out Appeals’). [10] In this OS 119, learned counsel for the Plaintiffs and learned counsel for Tan Sri Kam referred this Court to the legal position taken by the learned counsel for Dato’ Sri Andrew Kam during the Striking Out Applications and also in the written submission filed 6 before the Court of Appeal in the Striking Out Appeals (‘the Appeal Submission’). In particular, at paragraph 60 of the Appeal Submission, learned counsel for Dato’ Sri Andrew Kam in addressing the reasons for including WRSB, YSB, BRSB, Grandfoods Sdn Bhd (‘GSB’), Lead Enterprises Sdn Bhd (‘LESB’), Granny’s Kitchen Sdn Bhd (‘GKSB’), UROP and CRSB as parties to the Main Suit stated the following at paragraph 60.2: ’60.2 Ultimately, if the Plaintiff is correct, the 4th. to 11th. Defendants shares in the 2nd. Defendant has to be transferred to the Plaintiff. It is for this reason that prayer (viii) is included in the Statement of Claim. It is necessary for the performance of the Shareholders Agreement. As such it cannot be said that the 4th. to 11th. Defendants do not have an interest in the subject matter of the claim herein.’ (‘Paragraph 60.2 of the Appeal Submission’) [11] Learned counsel for the Plaintiffs and learned counsel for Tan Sri Kam also referred to the grounds of judgment by the learned Judicial Commissioner (as she then was) in the Striking Out Applications where at paragraph 27, Her Ladyship stated thus: ‘[27] Under the Shareholders Agreement clause 1 provides that 50% of the 1st. Defendant’s entire interest in the 2nd. Defendant which includes the entire 1st. Defendant’s interest in the 3rd. Defendant belongs to the Plaintiff. It is the Plaintiff’s position that the 1st. Defendant’s entire interest in the 2nd. Defendant not only refer to the shares which is registered directly in the 1st. Defendant’s name but also includes the shares in the 2nd. Defendant which are held by the 4th. to the 7 11th. Defendants where the 1st. Defendant is the majority shareholder in the 4th. to the 11th. Defendants. The 1st. Defendant also holds shares in the 4th. to the 11th Defendants in his own name.’ [12] During the course of the oral submission, leave was granted to the 1st Defendant to also file an affidavit exhibiting the submission and affidavit that were filed by the 2nd Defendant in the Main Suit for the Striking Out Applications. In both the submission and the affidavit affirmed by Dato’ Sri Andrew Kam, the legal position taken was that the 5th to the 8th Defendant herein are to transfer their respective shares in RMDC to him. [13] By the aforesaid passages, learned counsel for the Plaintiffs and learned counsel for Tan Sri Kam posited the following argument: i. By paragraph 60.2 of the Appeal Submission, learned counsel for Dato’ Sri Andrew Kam had taken the legal position that under the Impugned Agreement, the 5th to the 8th Defendants herein are to transfer their respective shares in RMDC to Dato’ Sri Andrew Kam; ii. The transfer of the RMDC shares registered in the name of the 5th to 8th Defendants to Dato’ Sri Andrew Kam is in contravention of section 228 of the CA 2016 as it is: (a) a transaction between a company and a director of the company or with a person connected with such director; 8 (b) it involves a disposal of non-cash assets between the company and the said director or person connected with such director; and (c) the non-cash assets involved has a requisite value of exceeding RM 250,000 or exceeds 10% of the company’s net asset value. These 3 ingredients are necessary to meet section 228 of CA 2016 as held in Omega Securities Sdn Bhd v. Yeo Lee Hoe [2003] 1 CLJ 276. It is not in dispute that Dato’ Sri Andrew Kam is a director of the 5th to the 8th Defendants and or is a person connected to such director. iii. It is not in dispute that no approval from the shareholders of each of the 5th to the 8th Defendants had been obtained in respect of the intended transfer or disposal of these RMDC shares; iv. Accordingly, pursuant to section 228(2) of the CA 2016, such arrangement or transaction envisaged under the Impugned Agreement is illegal, null and void and unenforceable; v. Further, under section 228(6) of the CA 2016, the Plaintiffs as directors of the 5th to the 8th Defendants are entitled to seek an order from this Court to restrain each of these companies from entering or carrying into effect such arrangement or transaction in contravention of section 228(1) of the CA 2016 insofar as the same is concerned with the 9 registered shareholding of the 5th to the 8th Defendants in RMDC. [14] In the Main Suit, Dato’ Sri Andrew Kam had on 6.9.2017 obtained from the Court an ad interim injunction which inter alia, restrains RMDC and or ROM, whether by themselves, their directors, their officers, representatives, servants and or agents, from disposing, pledging, dealing in any manner whatsoever, all or any assets of RMDC and or ROM, in particular, all the shares in ROM and or 3 pieces of land located at Raub, Pahang (‘the Ad Interim Injunction‘). [15] Learned counsel for the Plaintiffs and Tan Sr Kam alleged that the Ad Interim Injunction was obtained by Dato’ Sri Andrew Kam because the learned judge had relied on the legal position taken by learned counsel for Dato’ Sri Andrew Kam that the 5th to the 8th Defendants were obliged to transfer their RMDC shares to him. Judicial Estoppel [16] Learned counsel for the Plaintiffs and learned counsel for Tan Sri Kam contended that Dato’ Sri Andrew Kam cannot be permitted to resile from the legal position taken that the 5th to the 8th Defendants are to transfer their shares in RMDC to him under the Impugned Agreement given that he had already obtained an advantage in the Main Suit from the aforesaid legal position when securing the Ad Interim Injunction from the Court in the Main Suit and in securing the dismissal of the Striking Out Applications. 10 [17] Learned counsel for the Plaintiff submitted that the 5th to the 8th Defendants have also suffered prejudice because they are named as parties to the Main Suit by reason of the legal position taken by Dato’ Sri Andrew Kam. [18] Reference was made to the following passage by the Court of Appeal in Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at 344, para F: ‘The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. : … It may operate to bind parties as to the meaning or legal effect of a document or a clause in a contract which they have settled upon (see the Amalgamated case) or which one party to a contract has represented or encouraged the other to believe as the true legal effect or meaning : American Surety Co of New York v. Calgary Miling Co Ltd (1919) 48 DLR 295; De Tchihatchef v. Salerni Coupling Ltd [1932] 1 CH 330; Taylor Fashions.’ [19] Also, learned counsel for the Plaintiffs referred to the Federal Court’s case of Haron v. Macaulay [1969] 1 MLJ 169 at 170 where MacIntye F.J held that the litigant is bound by admissions made by his counsel: 11 ‘ In regard to quantum, counsel for the appellant considered the assessment in respect of general damages excessive. However, it would appear from the notes recorded by the trial judge that the assessment was based on certain admissions made by counsel who then represented the appellant. We are therefore of the opinion that the appellant is bound by those admissions and that the question of quantum should be approached on the basis of those admissions.’ [20] Similarly, in Yu Chee Lieng & Ors v. Khing Tung Realty Sdn Bhd [2008] 10 CLJ 686 at 694, David Wong J (as he then was), said: ‘Let me say here that litigants are bound by what was said in court by their former counsel as what they said are presumed to be said with their authority. Hence for Mr. Sandhu to say something different here is not only improper, it just shows that the opposing contributory is not sure of his own case and conducting his litigation on an ad hoc basis.’ [21] Learned counsel for Tan Sri Kam relied on the doctrine of judicial estoppel as explained by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v. Abramovich and others [2008] EWHC 2613 where His Lordship held: ‘The Court of Appeals for the Sixth Circuit explained the position in Edwards v. Aetna Life and Casualty 690 F 2s 595 (1982): The policies supporting judicial estoppel are different from those that support the more common doctrines of issue preclusion, equitable and collateral estoppel. 12 Courts apply equitable estoppel to prevent a party from contradicting a position taken in a prior judicial proceedings … Equitable estoppel enables a party to avoid litigating, in the second proceeding, claims which are plainly inconsistent with those litigated in the first proceeding. Because the doctrine is intended to ensure fair dealing between the parties, the courts will apply the doctrine only if the party asserting the estoppel was a party in the prior proceeding and if the party asserting the estoppel was a party in the prior proceeding and if that party has detrimentally relied upon his opponent’s prior position. See Id at 689-90. Collateral estoppel prevents re-litigation of factual matters that were fully considered and decided in a prior proceeding. Thus, collateral estoppel operates to prevent repetitive litigation. … The doctrine of judicial estoppel applies to a party who has successfully and unequivocally asserted a position in a prior proceeding; he is estopped from asserting an inconsistent position in a subsequent proceedings … Unlike equitable estoppel, judicial estoppel may be applied even if detrimental reliance or privity does not exist… This distinction reflects the difference in the policies served by the two rules. Equitable estoppel protects litigants from less than scrupulous opponents. Judicial estoppel, however, is intended to protect the integrity of the judicial process … Scarano v. Central R Co, 203 F 2d 510, 512-13 (3rd Cir 1953) (‘such use of inconsistent positions would most flagrantly exemplify that playing ‘fast and loose with the courts’ which has been emphasized as an evil the court 13 should not tolerate’) The essential function of judicial estoppel is to prevent intentional inconsistency; the object of the rules is to protect the judiciary as an institution, from the perversion of judicial machinery … Collateral estoppel is essentially a finality rule, which serves to conserve judicial resources by precluding the litigation of issues previously decided. Judicial estoppel addresses incongruity of allowing a party to assert a position in one tribunal and the opposite in another tribunal. If the second tribunal adopted the party’s inconsistent position, then at least one court has been misled…’ [22] This doctrine of judicial estoppel was recognised by our Court of Appeal in Leisure Farm Corp Sdn Bhd v. Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 at 74 where His Lordship Idrus Harun JCA (as he then was) adopted the aforesaid passage by Christopher Clarke J and held as follows: ‘[16] Learned counsel for the second respondent further reinforces the submission of the first respondent when he submits the remaining point before us. His contention is couched in forceful but deferential terms when he says that the appellant’s assertion in para 29 of the affidavit in support of the committal application was made in this court during the hearing of the said application to the effect that this appeal had been rendered illusory and nugatory. The appellant, however, is now saying that it is not academic. That, learned counsel submits, is not permitted. Learned counsel’s argument directed before us as we understand it, is that, in view of its earlier stand in the committal proceedings, judicial estoppel would operate to now estop the appellant from taking an inconsistent position during the appeal.’ 14 [23] Relying on the aforesaid authorities, learned counsel for the Plaintiffs and Tan Sri Kam contended that the Impugned Agreement ought to be construed as an arrangement or transaction where the 5th to the 8th Defendants are obliged to dispose of their shares in RMDC to Dato’ Sri Andrew Kam notwithstanding that the 5th to the 8th Defendants are not parties to the Impugned Agreement and the terms of the same are couched as a declaration that 50% of Tan Sri Kam’s ‘entire interest’ in RMDC belongs to Dato’ Sri Andrew Kam and that a first or priority option is granted to Dato’ Sri Andrew Kam to purchase Tan Sri Kam’s remaining 50% ‘entire interest’ in RMDC. [24] Learned counsel for the Plaintiffs submitted that under section 228(1) of the CA 2016, there is no necessity for the 5th to the 8th Defendants to have entered into the Impugned Agreement. It suffices if these companies ‘carry into effect any arrangement or transaction’ where Dato’ Sri Andrew Kam as a director of these companies acquires or is to acquire their respective shares in RMDC. Pursuant to section 228(2) of the CA 2016, since there was no prior approval of such arrangement or transaction of the Impugned Agreement by the shareholders of the 5th to the 8th Defendants, such arrangement or transaction shall be void. [25] With respect, I cannot agree. [26] The principle that a litigant is bound by statements made by his counsel is not unqualified. The litigant is bound only where the statements made by his counsel are authorised by the litigant to make, whether expressly or by implication. Of significant is that 15 neither the litigant nor the court is bound by statements of law or legal conclusions made by counsel to the court. In this regard, there is a helpful passage in Director of Elementary Education, Odisha & Ors v. Pramod Kumar Sahoo Civil Appeal No. 7577 of 2019 where the Supreme Court of India held: ‘8) Learned counsel for the appellant submitted that the separate pay scales are provided for the Untrained Matric Teachers (Rs. 975-25-1, 150-E.B.-30-1,660) and for the Trained Matric Teachers (Rs. 1,080-30-1,440-EB-30-1,800). Merely because the respondent is intermediate, that is higher qualification than the Metric, does not m make him a Trained Teacher. Therefore, the concession given by the State counsel is erroneous concession in law and does not bind the appellant. Reference was made to Himalayan Coop. Group Housing Society v. Balwan Singh & Ors, where, this Court held as under: “32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to 16 add neither the client nor the court is bound by the lawyer’s statements or admissions as to matters of law or legal conclusions…’ [27] In particular, where the Court is dealing with a construction of a contract, the Court is not bound by the admission or concession made by counsel for the parties on the interpretation of the terms therein. This is so held by our Court of Appeal in Silver Concept Sdn Bhd v. Brisdale Rasa Development Sdn Bhd [2005] 3 CLJ 259 at 273 where His Lordship Abdul Kadir Sulaiman JCA (as he then was) held: ‘The construction of a contract is a question of law to be determined by this court. This court is not bound by the admission of witnesses or the concession made by counsel in the court below. In NVJ Menon v. The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96 at 103 and 104 this court had held as follows: It would be noticed that we have in arriving at our aforesaid conclusion made no reference to the oral evidence led at the trial as to the meaning and interpretation of the contract between the parties. This is because the construction of a contract is a question of law for determination by the court and not by witnesses through their oral evidence. As Lord Diplock observed in Bahamas International Trust Co Ltd v. Threadgold [1974] 1 WLR 1514: In a case which turns as this one does, on the construction to be given to a written document, a 17 court called on to construe the document in the absence of any claim to rectification, cannot be bound by any concession made by any of the partiers as to what its language means. That is so even in the court before which the concession is made: a fortiori in the court to which an appeal from the judgment of the court is brought. The reason is that the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all the parties to the suit: having so decided it is his duty to apply it to the facts of the case. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it were erroneous.’ [28] Further, the Court must appreciate and understand the context upon which the statement or legal position was taken by counsel for the litigant. This is more so where such statements are made in the course of the counsel’s written submission filed to address a specific application. [29] In the instant case, the Appeal Submission is filed by learned counsel for Dato’ Sri Andrew Kam for the purpose of the Striking Out Appeals which have yet to be heard. Paragraph 60.2 of the Appeal Submission was made by learned counsel in response to the application by the 4th to 11th defendants in the Main Suit to strike out the action on the ground that Dato’ Sri Andrew Kam had no legal basis to bring them in as parties to the Main Suit as they are not expressly named as parties to the Impugned Agreement. 18 [30] In the Main Suit, Dato’ Sri Andrew Kam is claiming that he owns 50% of the entire RMDC shares held by Tan Sri Kam including shares of RMDC which are held by Tan Sri Kam through the 5th to the 8th Defendants. [31] Further, Dato’ Sri Andrew Kam is claiming that in respect of Tan Sri Kam’s balance 50% entire interest in RMDC including shares of RMDC which are held through the 5th to the 8th Defendants, Dato Sri Andrew Kam has a first or priority option to purchase the same from Tan Sri Kam based on an agreed price fixing mechanism set out in the Impugned Agreement. [32] In the Main Suit, Dato’ Sri Andrew Kam also claims that RMDC and ROM under the control of Tan Sri Kam are attempting to sell the assets of RMDC and ROM in breach of the terms of the Impugned Agreement. The 4th to the 11th defendants in the Main Suit according to Dato’ Sri Andrew Kam are in complicit with Tan Sri Kam in his attempt to sell the assets of RMDC and ROM. [33] It was on the bases of these claims that Dato Sri Andrew Kam applied for and obtained the Ad Interim Injunction from the learned Judicial Commissioner (as she then was) in the Main Suit. There is nothing to suggest that the Ad Interim Injunction was granted by reason of the ‘legal position’ under Paragraph 60.2 of the Appeal Submission and or that the learned Judicial Commissioner was influenced by the ‘legal position’ so taken. As I see it, the Ad Interim Injunction was sought by Dato Sri Andrew Kam to preserve the value of his 50% shares in RMDC, be it held directly or indirectly. As submitted by learned counsel for Dato’ Sri Andrew 19 Kam, the Ad Interim Injunction would be futile if only Tan Sri Kam is enjoined but not the companies who hold the shares of RMDC. Also, to preserve the value of the RMDC shares, the Ad Interim Injunction must also extend to RMDC not dissipating its assets. [34] To appreciate Paragraph 60.2 of the Appeal Submission, one must understand the effect of Dato’ Sri Andrew Kam’s claims in the Main Suit if he were to prevail at the trial of the action. i. Dato’ Sri Andrew Kam will own 50% of Tan Sri Kam’s entire shares in RMDC, whether the same are held directly by Tan Sri Kam or through the 5th to the 8th Defendants. This is a claim against Tan Sri Kam in respect of his direct shareholding in RMDC and Tan Sri Kam’s indirect shareholdings in RMDC through his shares in the 5th to the 8th Defendants. There is no agreement with the 5th to the 8th Defendant requiring any of these companies to transfer their RMDC shares to Dato’ Sri Andrew Kam at all. This is clear from prayer (iv) of the Statement of Claim in the Main Suit where Dato’ Sri Andrew Kam had sought for the following declaration: ‘(iv) A declaration that the entire interest of the 1st Defendant in the 2nd Defendant is held through the interest of the 1st Defendant in the 4th to 11th Defendants as well as held personally by the 1st Defendant in the 2nd Defendant and that therefore, the 50% of the 1st Defendant’s entire interest in the 2nd Defendant includes 50% of the interest held by the 1st Defendant in the 4th to 11th Defendants as 20 well as 50% of the interest held by the 1st Defendant personally in the 2nd Defendant.’ ii. As a result of Dato’ Sri Andrew Kam’s ownership of Tan Sri Kam’s indirect shareholdings aforesaid, it must follow that Dato’ Sri Andrew Kam can require Tan Sri Kam to cause the 5th to the 8th Defendants to take steps to transfer his RMDC shares to Dato’ Sri Andrew Kam. It is common ground that Tan Sri Kam is the majority shareholder of all these companies. If and when these transactions are to be effected, it would be the obligations of the directors of the 5th to the 8th Defendants to ensure that the requirements of section 228 of the CA are duly complied with, if the said section is applicable. iii. This particular leg of the transactions, namely, the transfer of the 5th to the 8th Defendants’ shares in RMDC, are not covered by the Impugned Agreement and in fact they are not necessary steps to be taken as Dato’ Sri Andrew Kam could well be contented to have Tan Sri Kam transferring his shares in the 5th to the 8th Defendants to him instead. However, based on the Paragraph 60.2 of the Appeal Submission, it would seem that Dato’ Sri Andrew Kam was contemplating Tan Sri Kam to cause such steps to be taken. iv. Similar position will apply in relation to Dato’ Sri Andrew Kam’s first or priority option to purchase Tan Sri Kam’s balance 50% of his entire interest RMDC, whether held directly or indirectly. 21 [35] Understood in the above context, Paragraph 60.2 of the Appeal Submission does not at all suggest that the Impugned Agreement is construed by learned counsel for Dato’ Sri Andrew Kam to mean that the 5th to the 8th Defendants are obliged to transfer to Dato’ Sri Andrew Kam their respective RMDC shares to him under the Impugned Agreement. If indeed it can be said that learned counsel for Dato’ Sri Andrew Kam had interpreted the terms of the Impugned Agreement to mean that the 5th to the 8th Defendants are legally obliged to effect the transfer, such construction placed by the learned counsel cannot bind the Court at all. [36] Unless and until the 5th to the 8th Defendants are required to carry into effect the transfer of Tan Sri Kam’s indirect shares in RMDC to Dato’ Sri Andrew Kam, section 228 of the CA is not invoked. [37] Further, in the event that Tan Sri Kam requires and or the 5th to the 8th Defendants are required to effect the transfer of their respective RMDC shares to Dato’ Sri Andrew Kam, it must be presumed at that stage that all the necessary requirements under the law including the requirements stipulated under section 228 of the CA 2016, if applicable, would be duly complied with by the directors of the companies and their respective shareholders. [38] Unless and until Dato’ Sri Andrew Kam prevails in the Main Suit, and unless and until Tan Sri Kam is called upon to transfer his indirect shares in RMDC to Dato’ Sri Andrew Kam, section 228 of the CA does not come into play at all. The Impugned Agreement remains as an agreement where the contracting parties are between Tan Sri Kam and Dato’ Sri Andrew Kam only. There is no 22 transfer of any shares or non-cash assets by other parties apart from Tan Sri Kam. [39] Further, when the 5th to the 8th Defendants are called upon to transfer their RMDC shares to Dato’ Sri Andrew Kam, it is within the complete control of the board of directors of each of these companies to ensure that the requirements of section 228 of the CA, if applicable, are duly complied with. After all, the majority shareholder in the 5th to the 8th Defendants in this case is the 1st. Defendant himself. [40] Contrary to the submissions by learned counsel for the Plaintiffs, I find that the 5th to the 8th Defendants are not prejudiced at all by the position taken by learned counsel for Dato’ Sri Andrew Kam as reflected in Paragraph 60.2 of the Appeal Submission. As directors of these companies, the Plaintiffs are in a position to ensure that any arrangement or transaction which involves the transfer of these RMDC shares is subject to a general meeting to approve the same. [41] As regards paragraph 27 of the Grounds of Judgment, I find that the contents therein do not add anything more to the Plaintiffs’ contention and for the same reasons alluded to above, I do not see how it supports their case. I must add that learned counsel for the Plaintiff had also referred to a few other paragraphs in the Grounds of Judgment as well in certain affidavits filed by the 2nd Defendant in the Main Suit basically repeating the same point, namely, that the 2nd Defendant had maintained in the Main Suit that he was looking as being the direct shareholder of the RMDC’s and for the 23 RMDC shares to be transferred to him from the 5th to the 8th Defendants if he prevails in the Main Suit. For the reasons stated above, I find no merits in the same. [42] In any case, I do not at all agree that Dato’ Sri Andrew Kam had succeeded in the Striking Out Applications and the Ad Interim Injunction because of his assertion that the 4th to the 8th Defendants are to transfer their RMDC’s shares to him. Neither the Plaintiffs nor the 1st Defendant has demonstrated this to be the case. Judicial estoppel does not apply unless it can be shown that the Striking Out Applications would not have succeeded but for the aforesaid assertion by Dato’ Sri Andrew Kam. Similarly, it is not the submission that the Court would not have granted the Ad Interim Injunction if not for the said assertion. [43] In Peguam Negara v. Nurul Izzah Bt Anwar & Ors [2017] 4 MLJ 656, Idrus Harun JCA (as His Lordship then was), held as follows in relation to the doctrine of judicial estoppel: ‘In any event, the doctrine of judicial estoppel will only apply to a party where the said party, the appellant in this appeal, had successfully and unequivocally persuaded the court on or asserted, a position in the Selangor Government case so that when that had taken, the appellant would be estopped from asserting an inconsistent position in a subsequent proceeding which in this appeal is the application for judicial review. The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery. Judicial estoppel seeks to address the incongruity of allowing a party to assert a 24 position in one court and the opposite in another tribunal. We are satisfied, for the reasons that we have given in the preceding paragraph, that no such successful or unequivocal persuasion or assertion was ever made by the appellant in the earlier Selangor Government case for the doctrine to apply in the instant application for judicial review. The appellant merely did not raise an objection to the leave application. The condition precedent for the doctrine to apply therefore was not fulfilled.’ [44] There is a difference between counsel taking a legal position and abandoning or withdrawing from pursuing the particular legal position which learned counsel, on subsequent reflection, is of the view may not be sustainable in law in terms of the nature of the reliefs that may be opened to their clients and a concession made as to certain facts or state of affairs. [45] In the present case, learned counsel for Dato’ Sri Andrew Kam had during his oral submission before this Court stated that Dato’ Sri Andrew Kam will no longer be seeking the prayer (viii) of his Statement of Claim in the Main Suit where he had claimed for the following order: ‘(viii) An Order that the 12th and 13th Defendants take all necessary steps to ensure that the transfer of shares of the 2 nd. and the 4th. to the 11th. Defendants consequent upon prayer (vii) above is effective and regular.’ Prayer (vii) is the specific performance of the Impugned Agreement. Corollary to this, learned counsel for Dato’ Sri Andrew 25 Kam further stated that he will be revising the paragraph 60.2 of the Appeal Submission. [46] Although learned counsel for Tan Sri Kam had asked this Court to treat this withdrawal or abandonment as a clear acknowledgment by counsel for Dato’ Sri Andrew Kam that he is in fact taking an inconsistent position in the present proceedings from that taken in the Main Suit and in the Striking Out Appeals, I respectfully disagree. [47] There is nothing to prevent counsel from withdrawing an erroneous view of the law that may have been made by him in an earlier part of the proceedings or in a related proceeding. Such withdrawal can be made orally to the court. In the Federal Court case of Che Esah & Anor v. Che Limah [1966] 1 MLJ 36, the previous counsel for the appellant had in the Session Court made a statement of admission that upon remarried, the first appellant was no longer a ‘widow’ under the Control of Rent Ordinance 1956. However, before the Federal Court, the first appellant was permitted to withdraw the admission which was an erroneous position in law. The following passage from the judgment of Barakbah J is relevant: ‘There is one other matter which should be mentioned on the question as to whether the proper application is by way of motion for the withdrawal of the admission by the defendants’ counsel or can be made orally. The answer could be found in the case of The State of Perak v. P.R.A L.M.N. Muthukaruppan Chettiar, McElwaine CJ (S.S) stated, inter alia: 26 In P.M.N.T. Ramasamy Chetty v. Syed Alsagoff 7 F.M.S.L R 93, Thorne J. at p. 120 said: ‘Counsel for the respondent at the hearing below conceded that the respondent was the representative in interest of her own nominees, namely, the persons named in the transfers to the appellants as transferors. In the Court of Appeal counsel submitted that there was an erroneous view of the law and that the respondent could be heard to say, notwithstanding his statement or admission, that it was erroneous. I incline to the opinion that this submission is correct. It seems to me that the statement of counsel below amounted to no more than that his opinion on the facts proved was that the respondent was the representative in interest of his own nominees and that he did not propose to argue that they were not. I think that the respondents are at liberty to urge that this opinion was incorrect. …. In my opinion this court should disregard the admission on the grounds that it was an erroneous statement of law no more binding or authoritative than many other bizarre propositions of law to which courts have to listen.’ [48] The facts in Leisure Farm’s case are distinguishable from the present case. In that case, the appellant had taken the position during the committal application that its appeal had been rendered illusory, nugatory and academic by reason of the sale of the shares to the Sultan of Johor. Yet, before the Court of Appeal at the hearing of its appeal, the appellant was seeking to put forth a 27 completely inconsistent position, that is, that its appeal was not academic. It was not a case of an erroneous legal position that was taken as in this case. [49] Accordingly, in my judgment, the doctrine of judicial estoppel does not apply in this case. No contravention of section 228 of Companies Act 2016 [50] In any event, given the acknowledgment in the Impugned Agreement that the 50% of Tan Sri Kam’s entire interest in RMDC shares belong to Dato’ Sri Andrew Kam, the transfer of such RMDC shares to Dato’ Sri Andrew Kam would not in fact involve any change in the beneficial ownership of the same. [51] In Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor [2012] 5 CLJ 169 at 196, the Court of Appeal construed the word ‘disposal’ in section 132C of the CA 1965 as follows: ‘[98] Our reasons are manifold. We can begin by construing the interpretation to be given to the word ‘disposal’ in s. 132C of the Act. [99] In this regard, statutory interpretation of the word ‘disposal’ can be seen in the authority of Re Margart Pty Hamilton v. Westpac Banking Corporation & Another [1985] BCLC 314, where the NSW Supreme Court found that in legal terms, the word ‘disposition’ when used with reference to property normally connotes a change in the beneficial 28 ownership of an asset by transfer or other type of dealing. Thus, it is clear that it would only be considered a “disposal” if there was a fact a transfer or change in beneficial ownership. [100] It is interesting to note that Australian Courts have consistently held that the term “disposition” should be construed as “transfer” or “alienate”, whereby there must be some change that takes out of the company or transfers beneficial ownership in a corporate asset and passes it to someone else (See Australian Trade Commission v. Film Funding and Management Pty Ltd [87 ALR 49] and Re: Loteka Limited [1989] 15 ACLR 620. The Australian are persuasive in assisting us in determining this issue.’ [52] Accordingly, it is my judgment that the Impugned Agreement does not amount to a ‘disposal’ of RMDC shares by the 5th to the 8th Defendants to Dato’ Sri Andrew Kam under section 228(1) of the CA 2016. For the same reason, it cannot amount to an ‘acquisition’ of the RMDC shares by Dato’ Sri Andrew Kam from the 5th to the 8th Defendants. [53] When we look at section 228(1)(a) and (b) of the CA 2016, it is clear that the arrangement or transaction that is referred to relates to one where a director or a substantial shareholder of the company or its holding company, or its subsidiary, or a person connected with a director or substantial shareholder either: (a) acquires or is to acquire shares or non-cash assets of the requisite value from the company; or 29 (b) disposes of or is to dispose of shares or non-cash assets of the requisite value, to the company unless the entering into the arrangement or transaction or the carrying into effect of the arrangement or transaction is made subject to or has been approved by the shareholders at a general meeting is obtained. [54] In both instances, the arrangement or transaction are with the company. This is consistent with the purpose of the section which is stated by Park J in the English case of NHB Ltd and another v. Hoare and Others [2006] 2 BCLC 649 when he referred to the equivalent provisions in the English Companies Act of 1985 in the following manner: ‘Surely, s. 320(1)(a) is about cases where a director or a person connected with him purchases assets from a company at an undervalue, so that the director or connected person is in a position to make a gain at the expense of the company, that is the situation in which the director is liable to account to the company under s. 322(3)(a). And conversely s. 320(1)(b) is about cases where a director or a person connected with him sells assets to a company at an undervalue, so that the company is exposed to a loss which ought to have fallen on the director or the connected person, that is the situation in which the director is liable to indemnify the company under s. 322(1)(b)’. [55] As alluded above, the 5th to the 8th Defendants are not involved in the Impugned Agreement. In any case, the Plaintiff and the 1st 30 Defendant being the majority directors of these companies have complete control over these companies to ensure that they do not ‘carry into effect’ any arrangement or transaction that would contravene section 228(1) of the CA 2016. [56] I am also unable to accept the contention by learned counsel for the Plaintiffs that prior approvals from the 5th to the 8th Defendants were needed before Tan Sri Kam and Dato’ Sri Andrew Kam could enter into the Impugned Agreement. This contention is wholly inconsistent with the proviso (A) in section 228(1) of the CA 2016 which permits a company to enter into the arrangement or transaction if the same ‘is made subject to the approval of shareholders at a general meeting’. Hence, there is no requirement that approval of the shareholders at a general meeting must be obtained prior to the entering into such arrangement or transaction. [57] For completeness, the proviso (B) in section 228(1) suggests that prior approval by the shareholders at a general meeting of any such arrangement or transaction is only needed before the carrying out into effect of the same. In fact, section 228(2) of the CA 2016 provides that such arrangement or transaction which is ‘carried’ into effect in contravention of subsection (1) shall be void unless there is prior approval by a resolution of the company. [58] It is pertinent that the said section 228(2) does not stipulate that the entering into such arrangement or transaction without prior approval is void. This is because Parliament clearly intended that such arrangement or transaction will only be void if it is carried out 31 without prior approval. No one is suggesting that the 5th to the 8th Defendants had carried into effect any such arrangement or transaction. [59] Accordingly, I hold that the Impugned Agreement on its own does not in any way contravene section 228 of the CA 2016 as claimed by the Plaintiffs. It does not attract the application of section 228 of the CA 2016 at all as in itself, it is not an arrangement or transaction that involves the 5th tot the 8th Defendants or involves any of these companies ‘disposing’ shares or non-cash assets of the companies. [60] There is also no basis for the Plaintiffs to seek the pre-emptory injunctive relief under section 228(6) of the CA as the Plaintiffs and Tan Sri Kam being the directors of these companies are well place to ensure that the appropriate resolutions are secured by their respective shareholders at a general meeting if and when the companies are called upon to effect the transfer of their RMDC shares to Dato’ Sri Andrew Kam. [61] Moreover, the Impugned Agreement has already been executed. This case is not dissimilar to that in Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor [2012] 5 CLJ 169 where at 209, the Court of Appeal in rejecting the prayer for the pre-emptory relief under section 132C(2) of the CA 1965 which is substantially similar in wordings with section 228(6) of the CA 2016 held: 32 ‘[175] Ho Hup’s problem is compounded by the relief they sought. For a start, the wording of s. 132C(s) is clear and unambiguous. It provides relief to restrain the entry into a transaction. In these appeals, it is not disputed that the JDA has already been executed. Thus this subsection which contemplates pre-emptory relief is not applicable’. Section 228 of Companies Act 2016 not the applicable legislation [62] Quite apart from the aforesaid, there is yet another reason why OS119 is untenable. [63] OS 119 is premised on section 228 of the CA 2016. The CA 2016 however was only brought into operation on 31.1.2017 pursuant to the ‘Appointment Of Date Of Coming Into Operation PU(B) 50/2017’. This means that as at 16.1.2017, the date of the Impugned Agreement, the applicable legislation governing the same was the CA 1965. The operative section ought to be section 132E of the CA 1965. [64] Thus, the Plaintiffs’ Originating Summons which is moved under the CA 2016 is wholly misconceived and ought to be dismissed in limine. This is more so given that the wordings in section 228 of the CA 2016 are materially different from the corresponding section 132E of the CA 1965. The words ‘enter or’ in section 228(1) are not found in the section 132E(1) that was in operation in the CA 1965 at the date of the Impugned Agreement. It is not suggested that section 228 of the CA 2016 has retrospective effect. 33 [65] In response, learned counsel for Tan Sri Kam submitted that there was no error at all in the intitulement and in the Plaintiffs’ reliance on section 228 of the CA 2016 instead of section 132E of the CA 1965 which was the operative provision at the time of the Impugned Agreement. [66] In support, reference was made to section 619(4) of the CA 2016 which states: ‘(4) All proceedings, judicial or otherwise commenced before and pending immediately before the commencement of this Act under the Companies Act 1965 shall be deemed to have commenced and may be continued under the Act.’ [67] Reference was also made to Che Esah & Anor v. Che Limah [1966] 1 MLJ 36 and Government of Malaysia v. Zainal bin Hashim [1977] 2 MLJ 254 in support of the proposition that the Court should apply the law that is applicable at the date of the hearing and not that existing at the time the proceedings are commenced. Learned counsel for Tan Sri Kam contended that the question of retrospective application of section 228 of the CA 2016 does not arise. [68] With respect to learned counsel for Tan Sri Kam, the aforesaid 2 cases cited are clearly distinguishable from the facts of the present case. In Che Esah & Anor v. Che Limah (supra), the Federal Court was concerned with the question whether an order for possession could be made against the tenant’s widow. The court held in that case that no order for possession could be made 34 because at the date of the hearing, the tenancy was then protected by the provisions of the Control of Rent Ordinance 1956. This was because it was the circumstances existing at the date of the hearing by the court of trial that were applicable and not those existing when proceedings were commenced in determining the landlord’s claim for possession under the Control of Rent Ordinance 1956. At page 37 of the judgment, this was what Barakbah CJ said: ‘The next point for consideration is whether the first appellant had left the premises and then reoccupied it in 1962 as alleged by the respondent. First appellant denied this and stated that she was in continuous occupation from the death of her husband. But assuming that she had left and then came back would it affect the tenancy of the premises? Referring again to Megarry on The Rent Act 9th Ed. P. 224 it was stated that although the landlord’s claim to possession at common law must be complete when the proceedings are commenced, the circumstances relevant to his claim to possession under the Acts, both as to reasonableness and, in general, the specific heads, are those existing not when proceedings are commenced but at the date of the hearing by the court of trial, and not the Court of Appeal. See the cases of Hutchinson v. Jauncey and Remon v. City of London Real Property Company Ltd. In the present case, no notice was served on the legal representative of the deceased tenant or the Chief Justice. The only notice served was on the widow, the first appellant on 28 th February 1963 and the hearing in the Sessions Court began on 27th November 1963. In my view, therefore, as the law applicable is the law as it existed at the date of the hearing, and as the tenancy was then protected by the provisions of the 35 Control of Rent Ordinance 1956, no order for possession could be made.’ [69] Similarly, in Government of Malaysia v. Zainal bin Hashim (supra), subsequent to the commencement of the action, an amendment had been made to Article 135(1) of the Constitution with retrospective effect rendering the Chief Police Officer’s dismissal of the plaintiff to be valid by the time of the appeal. It was for this reason that Suffian L.P held that the court was ‘authorised to make such order on this appeal as ought to be made according to the law as it stands not at the time of the trial but at the time of this appeal.’ [70] The facts in the present case are different. The thrust of the Plaintiffs’ case is that the Impugned Agreement falls foul of the provisions requiring shareholders’ approval of the terms thereto. The relevant provisions should be section 132E of the CA 1965 which was the legislation in force at the time. Subsequent to the execution of the Impugned Agreement and at the time the OS 119 was filed in 2019, the CA 1965 has been repealed and replaced by the CA 2016. Section 228 of the CA 2016 which has replaced section 132E of the CA 1965 are not identical to the said section 132E. In fact, there are material differences between the 2 sections. [71] It cannot be the case that the parties to the Impugned Agreement are made subject to provisions under the CA 2016 which did not exist at the time the Impugned Agreement was executed. Unlike the case in Government of Malaysia v. Zainal bin Hashim 36 (supra), the provisions under the CA 2016 have no retrospective effect. [72] Section 619(4) of the CA 2016 that was referred to merely preserve proceedings commenced before the coming into force of the CA 2016. It is of no relevance to the present proceedings. What is of relevant is section 620(4) of the CA 2016 which expressly provides: ‘(4) Any right, privilege, obligation or liability acquired, accrued or incurred before the effective date or any legal proceedings, remedy or investigation in respect of such right, privilege, obligation or liability shall not be affected by this Act and shall continue to remain in force as if this Act has not been enacted.’ [73] In Mak Siew Wei v. Yeoh Eng Kong & Others Appeals [2019] 7 CLJ 470, Nallinin Pathmanathan JCA ( as Her Ladyship then was) said : ‘[22] In brief, the learned High Court Judge held that s. 620(4) of the 2016 Act, as the savings provision, preserves any rights acquired before the enactment of the 2016 Act. Her Ladyship therefore held that no interpretative exercise is needed to determine whether the 2016 Act is retrospective or prospective, as such an exercise is only necessary where a statute is unclear. We concur with her view that the intention of Parliament is unambiguous that the 2016 Act is to be applied prospectively, and that any rights accrued before its enactment will survive. Under the old Companies Act 1965, the plaintiff has 37 the right to bring a common law derivative action. This right has been preserved by s. 620(4) of the 2016 Act’. [74] This means that the Plaintiffs’ action should be based on the CA 1965 instead of CA 2016. Notwithstanding the objection made to the intitulement, the Plaintiffs did not apply to amend the same but instead sought to justify their reliance on section 228 of the CA 2016. The citing of an Act that is not in existence as the foundation of the claim is a fundamental flaw. In Malayan Banking Bhd v. Koay Kang Chuwan @ Anor [2010] 5 MLJ 46, the Court of Appeal said: ‘Simply put, a failure to comply with the requirement of the rules would be treated as an irregularity and is curable. But the court has no power to remedy an irregularity which is fundamentally defective. Thus, the failure to include an intitulement of the rule of court or statute under which the court is moved cannot be remedied (Kancitek (M) Sdn Bhd v. Mayban Finance Berhad [2000] 4 AMR 4960 at p, 4969)’ [75] I agree that there is a fundamental defect in the Plaintiffs’ OS 119 and that this is a further reason justifying the dismissal of the action. [76] For the reasons above, I dismissed OS 119 with costs fixed at RM 30,000.00 to be paid by the Plaintiffs to the 2nd Defendant subject to allocator. 38 Dated: 26 June 2020 ......................................... (ONG CHEE KWAN) Judicial Commissioner High Court of Malaya, Kuala Lumpur Commercial Division, NCC2 COUNSEL: 1. Dato’ Lim Choon Kim with Ms. Chin Yan Leng for Plaintiffs. (Messrs. Chooi, Saw & Lim (Kuala Lumpur)) 2. Datuk Seri Gopal Sri Ram with Mr. Y. C. Wong and Mr. David Yii for 1st Defendant. (Messrs. Y.C. Wong (Kuala Lumpur)) 3. Dato’ Malik Imtiaz with Mr. Mathew Thomas Philip, Mr. Clinton Tan and Ms. Voon Su Huei for 2nd Defendant. (Messrs. Thomas Philip) 4. Mr. Farez Jinnah watching brief for company sectetary of 3rd to 9th Defendants. (Messrs. Farez & Jinnah) LEGISLATION REFERENCE: 1. Section 228 of the Companies Act 2016. 2. Section 132C of the Companies Act 1965 3. English Companies Act of 1985. 39 CASE REFERENCE: 1. Omega Securities Sdn Bhd v. Yeo Lee Hoe [2003] 1 CLJ 276. 2. Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. 3. Haron v. Macaulay [1969] 1 MLJ 169. 4. Yu Chee Lieng & Ors v. Khing Tung Realty Sdn Bhd [2008] 10 CLJ 686. 5. OJSC Oil Co Yugraneft (in liquidation) v. Abramovich and others [2008] EWHC 2613. 6. Leisure Farm Corp Sdn Bhd v. Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63. 7. Director of Elementary Education, Odisha & Ors v. Pramod Kumar Sahoo (Civil Appeal No. 7577 of 2019). 8. Silver Concept Sdn Bhd v. Brisdale Rasa Development Sdn Bhd [2005] 3 CLJ 259. 9. Peguam Negara v. Nurul Izzah Bt Anwar & Ors [2017] 4 MLJ 656. 10. Che Esah & Anor v. Che Limah [1966] 1 MLJ 36. 11. Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor [2012] 5 CLJ 169. 12. NHB Ltd and another v. Hoare and Others [2006] 2 BCLC 649. 13. Government of Malaysia v. Zainal bin Hashim [1977] 2 MLJ 254. 14. Mak Siew Wei v. Yeoh Eng Kong & Others Appeals [2019] 7 CLJ 470. 15. Malayan Banking Bhd v. Koay Kang Chuwan @ Anor [2010] 5 MLJ 46. 40