MUHIBBAH STEEL INDUSTRIES SDN BHD WABAG MUHIBBAH JV SDN BHD

BA-22C-37-10/2021 Kand. 29 IN THE HIGH COURT OF MALAYA AT SHAH ALAM 19/09/2022 10:43:36 IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO: BA-22C-37-10/2021 BETWEEN MUHIBBAH STEEL INDUSTRIES SDN. BHD. [(Co. No.: 199201010481 (241984-K)] … PLAINTIFF AND WABAG MUHIBBAH JV SDN. BHD. [(Co. No.: 201501033667 (1158987-V)] … DEFENDANT JUDGMENT (Court enclosure no. 10) A. Background 1. The plaintiff company (Plaintiff) is a wholly owned subsidiary of Muhibbah Engineering (M) Bhd. (MEB). 2. On 12.10.2015, VA Tech Wabag Ltd. (Wabag), MEB and defendant company (Defendant) entered into the following two agreements: (1) a “Joint Venture Definitive Agreement” (JVDA); and (2) a “Shareholders’ Agreement” (SA). 3. The following provisions in the JVDA are relevant - (1) paragraph A of the Recital to JVDA [Recital A (JVDA)] stated that, among others, WABAG and MEB had jointly bid for construction S/N uO8MGtmACEiZEvpfKFIvg 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal work regarding “Package No. 16A - Design Completion for RE- FEED, Engineering, Procurement, Construction and Commissioning of the Effluent Treatment Plant” (Project) in the Refinery and Petrochemical Integrated Development Project [owned by PRPC Utilities and Facilities Sdn. Bhd. (Owner)]; (2) according to paragraph B of the Recital to JVDA [Recital B (JVDA)], by a “Letter of Award” dated 27.8.2015, the Owner had awarded the contract for the Project to WABAG and MEB [Contract (Owner, WABAG and MEB)]; (3) for the purpose of “better execution” of the Project, WABAG and MEB have incorporated the Defendant to undertake “Onshore Works” of the Project (Works) - paragraph C of the Recital to JVDA [Recital C (JVDA)]; (4) paragraph D of the Recital to JVDA [Recital D (JVDA)] provided that simultaneous with the execution of the JVDA, WABAG and MEB have entered into SA so as to provide for the respective rights and obligations of WABAG and MEB as shareholders of the Defendant; (5) clauses 2.1.1 and 2.1.2 have provided for the “Joint Venture” between WABAG and MEB to perform the Contract in accordance with the terms of JVDA [JV (Wabag-MEB)] (6) the JV (Wabag-MEB) “shall” be on a 70:30 basis (70:30 Basis), ie., Wabag shall be entitled to 70% of the profit arising from the JV (Wabag-MEB) while MEB shall be entitled to 30% of the profit arising from the JV (Wabag-MEB) - clause 2.3; S/N uO8MGtmACEiZEvpfKFIvg 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal (7) clause 5.4(1) states that WABAG and MEB “shall procure” the Defendant and the Defendant “shall, deposit all monies received from the Owner in connection with the [Works]” into a bank account (Collection Bank Account); (8) WABAG and MEB “shall procure” the Defendant and the Defendant “shall”, transfer 90% of the sums received from the Owner in the Collection Bank Account to a separate bank account to pay for all cost and expense incurred in carrying out the Works (Operating Bank Account) - clause 5.4(3)(a); (9) according to clause 5.4(4), the cost and expense (Defendant’s Cost/Expense) which the Defendant shall be entitled to pay out from the Operating Bank Account, “shall be determined” by the “Executive Committee” (EXCO). Clauses 3B.2 states that each of the Defendant, WABAG and MEB “shall” appoint its director to be a member of EXCO; and (10) the liability of WABAG and MEB as between themselves for “any claim, debts, losses, damages, costs or expenses” claimed by any person arising out of the JV (Wabag-MEB) “shall” be on 70:30 Basis - clause 8.1. 4. I reproduce below the pertinent provisions in the SA - (1) paragraph E of the Recital to SA [Recital E (SA)] states that WABAG and MEB are the legal and beneficial owners of 70% and 30% respectively of all the shares in the Defendant; S/N uO8MGtmACEiZEvpfKFIvg 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal (2) pursuant to the SA, WABAG and MEB agree to collaborate with each other to provide their expertise for the purpose of the Project and/or “as otherwise decided by” WABAG and MEB - paragraph F of the Recital to SA [Recital F (SA)]; (3) according to paragraph G of the Recital to SA [Recital G (SA)], WABAG and MEB entered into the SA “to regulate their relationship with each other as shareholders of the [Defendant] and to govern the management of the [Defendant] in the manner” contained in the SA; (4) clause 10.4(2) provides that the Defendant “shall cause to be opened and maintained” two separate bank accounts, namely the Collection Bank Account and Operating Bank Account; and (5) according to clause 12(1)(a) to (f), the Defendant’s money “shall be applied in the following order unless otherwise decided by both” WABAG and MEB - (a) payment of interest on debt; (b) payment of operational expenses for maintenance and operation of the Defendant’s business; (c) repayment of principal on debt in accordance with the financing arrangements entered into with the Defendant’s lenders; (d) repayment of all other liabilities of the Defendant; (e) repayment of all shareholders’ advances and interest; and S/N uO8MGtmACEiZEvpfKFIvg 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal (f) subject there being available profits for distribution, the payment of dividends to WABAG and MEB. 5. The Defendant had engaged the Plaintiff to do the Works by way of “Service Orders”, “Work Orders” and “Purchase Orders” (SO’s/WO’s/PO’s). With regard to the SO’s/WO’s/PO’s, the Plaintiff has alleged as follows: (1) the Plaintiff had performed the entire Works stipulated in the SO’s/WO’s/PO’s (Plaintiff’s Works); (2) the Plaintiff’s Works had been proven in the following documents [Documents (Plaintiff’s Works)] - (a) the Defendant’s “Contract Closure Checklist”; (b) the Defendant’s “Contract Closure Certificate”; (c) the Defendant’s “Statement of Final Accounts”; (d) the Defendant’s “Sub-Contractor’s Work Completion Reports”; (e) the Defendant’s “Final Closure Statements”; (f) “Final Progress Claims”; (g) tax invoices issued by the Plaintiff to the Defendant; (h) the Defendant’s “Site Instruction” (SI) dated 26.4.2017 for the Plaintiff to return “Balance & Surplus pipe rack material” to the Defendant’s “Site fabrication yard”; and S/N uO8MGtmACEiZEvpfKFIvg 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal (i) the Defendant’s SI dated 1.4.2017 for the Plaintiff to, among others, make provision for the claims regarding the services of “QAQC Inspector”, Encik Amir Asyraf Bin Janorin, from 8.3.2017 until the final delivery of “ETP-16A Shelters and Piperacks”; (3) the total value of the Plaintiff’s Works was RM2,266,821.24 [Total Sum (Plaintiff’s Claim)]; and (4) in a meeting of the Defendant’s board of directors (BOD) on 28.9.2021, the Defendant’s “agreed that the due payments of [Plaintiff’s] should be the first be paid immediately upon receipt of shareholder’s contributions” [Defendant’s BOD Minutes (28.9.2021)]. B. Plaintiff’s application for summary judgment against Defendant (Enc. 10) 6. In Enc. 10, the Plaintiff has applied for, among others, summary judgment to be entered against the Defendant for the Total Sum (Plaintiff’s Claim) with interest and costs. 7. In this case, the Plaintiff has fulfilled the following three conditions (3 Conditions) required by O 14 rr 1(1) and 2(1) of the Rules of Court 2012 (RC): (1) the Plaintiff’s Amended Statement of Claim (ASOC) had been served on the Defendant; (2) the Defendant had entered appearance; and S/N uO8MGtmACEiZEvpfKFIvg 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal (3) the Plaintiff’s General Manager, Mr. Pang Sheh Haur (Mr. Pang), had affirmed an affidavit on 27.1.2022 verifying the facts on which the ASOC was based and Mr. Pang’s belief that there was no defence by the Defendant to the ASOC. 8. Upon the fulfilment of the 3 Conditions by the Plaintiff, the burden shifts from the Plaintiff to the Defendant to oppose Enc. 10 by satisfying the court under O 14 rr 3(1) and 4(1) RC that there is at least one issue to be tried regarding the ASOC. This is clear from the following two Federal Court cases: (1) the judgment of George Seah FJ (as he then was) in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 1 CLJ (Rep) 283, at 285; and (2) the decision of Steve Shim CJ (Sabah & Sarawak) in Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544, at 551-552. 9. If the Defendant cannot raise any triable issue with regard to the ASOC, the court may still dismiss Enc. 10 under O 14 r 3(1) RC if “there ought for some other reason to be a trial”, namely there are circumstances in this case that ought to be investigated by the court - please refer to the Federal Court’s judgment delivered by Mohd. Dzaiddin FCJ (as he then was) in United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657, at 666-668. C. Whether court should lift Plaintiff’s corporate veil S/N uO8MGtmACEiZEvpfKFIvg 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal 10. “Constructive fraud” has been explained by Mohd. Azmi SCJ in the Supreme Court case of Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] 2 MLJ 291, at 296, as follows: “It is not a fraud in the common law sense, but an unmeritorious and unconscionable conduct which is known as constructive or equitable fraud (see Spry on Equitable Remedies, 2nd Edition, at page 236).” (emphasis added). 11. In the Federal Court case of Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 3 MLJ 622, Nallini Pathmanathan FCJ has adopted the judgment of Lord Sumption JSC in United Kingdom’s (UK) Supreme Court in Prest v Petrodel Resources Ltd & Ors [2013] AC 415. Nallini Pathmanathan FCJ has explained, among others, the “Concealment Principle” in Ong Leong Chiou, at [98] and [99], as follows: “[98] The concept of lifting and piercing were and continue to be utilised interchangeably in this jurisdiction. However, in this appeal, I have considered in greater detail the differences in the principles underlying the principle of 'piercing' the corporate veil as enunciated by Lord Sumption. I am of the considered view that it would be appropriate to adopt the analysis put forward by Lord Sumption in Prest, but as agreed by the majority of the Bench in Prest, the analysis ought not to be applied too rigidly. It would be premature to bar or foreclose the categories of cases in which the corporate personality may be either disregarded or the veil 'pierced'. S/N uO8MGtmACEiZEvpfKFIvg 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal [99] The following conclusions may be drawn in relation to the disregarding of the corporate veil: (i) There subsists a long line of authority over the years in Malaysia which recognises that fraud, whether common law fraud or fraud in equity permits the court disregarding of the corporate personality. This body of law as adopted from the United Kingdom takes its line of reasoning from the 'fraud unravels all' principle as expounded by Denning LJ in Lazarus v. Beasley (above). That body of law remains correct and relevant and ought not to be lightly tampered with. It is reflective of the position in law recognised in Salomon v. Salomon (above). It is moreover, with respect, entirely legally coherent because the theoretical concept of the separate corporate personality was founded to enable business to be conducted. It is the essence of incorporation that the shareholder/controller of the company limits his liability in respect of the future conduct of the company's affairs. There is nothing wrong with that. Advantage is taken of limited liability to avoid personal liability if things go wrong. (see Persad v. Singh per Lord Neuberger [2017] UKPC 32). However, the limitation of liability envisages that such future conduct of the company's business is to be conducted honestly and with integrity - the law is predicated on that assumption. Once honesty is abandoned and the company is utilised as a vehicle for dishonest conduct, or fraud, or unconscionable conduct, then the basis for the separate corporate personality is jeopardised and undermined. It no longer serves the purpose it was intended for. As such it is only correct that a court investigating the injury or loss suffered by reason of the wrongful utilisation of the corporate personality, or the abuse of the corporate personality, is allowed to both look behind the façade to ascertain the true facts and also impose liability S/N uO8MGtmACEiZEvpfKFIvg 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal against the persons perpetrating such wrongdoing as is required on the facts of a particular case. This body of law relating to fraud subsists outside of the doctrine of 'piercing' the corporate veil as explained in Prest; (ii) I would respectfully concur with the legal rationale prescribed by Lord Sumption in Prest, which explains that in order to ascertain whether the veil of incorporation ought to be 'pierced', the nature of the wrongdoing in issue ought to be analysed to ascertain whether it falls within the purview of the 'concealment' principle or the 'evasion' principle. To this end, the distinction between the two principles of concealment and evasion are of importance and benefit to enable a court to analyse with greater accuracy the basis on which the corporate personality is being disregarded. It also results in different consequences as explained earlier; Concealment Principle (iii) The analysis in Prest, namely that the concealment principle does not in reality pierce the veil of incorporation, but allows the court to disregard or look behind the corporate personality to ascertain the true facts, ought to be considered for use and application in this jurisdiction. The reason is because after ascertaining the true facts concealed behind the corporate personality, it will enable a court to determine which legal principle of substantive law it will then utilise to determine whether liability subsists, or does not subsist, against a party to the dispute, on a given set of facts. This may involve the utilisation of the principles of agency or trusts or some other area of the law. Such application allows for a greater analysis of the basis on which liability is imposed, rather than simply stating that the corporate veil has been lifted and imposing liability on a party without explaining the legal basis for doing so. It is also important to note that it does not S/N uO8MGtmACEiZEvpfKFIvg 10 **Note : Serial number will be used to verify the originality of this document via eFILING portal engage the evasion principle such that the corporate veil is not pierced; Evasion Principle (iv) If the wrongdoing warrants the application of the evasion principle, the consequence is that the corporate veil is pierced, so as to enable liability to be imposed on a person, seemingly unconnected to the transaction in dispute. First, it is necessary to ascertain if there is a legal right against the person in control of a company which exists independently of the company's involvement, and a company is interposed such that the legal personality of the company defeats the legal right or frustrates its enforcement. This is a considerable obstacle to overcome, and it is only rarely that an appropriate set of facts will allow for such 'piercing'. Ultimately, the narrow and rigid test ensures that the corporate personality is not lightly disregarded. Even when the facts of a particular case warrant invoking the evasion principle enabling the corporate veil to be pierced, the court may only apply the doctrine to deprive the company or its controller of the advantage that they would otherwise have obtained by the company's separate legal personality. If there subsists a legal relationship between the company and its controller, it might not be necessary to pierce the corporate veil, in which event it ought not to be pierced; Conclusions (v) In many instances, the facts will not allow for a clean and clear application of either one of these principles. Both principles might come into play. It has also been demonstrated that the application of these different principles might well give rise to the same result. This is a practical reality that should be borne in mind when analysing the S/N uO8MGtmACEiZEvpfKFIvg 11 **Note : Serial number will be used to verify the originality of this document via eFILING portal particular factual matrix. It has also been reported that there has been a degree of misunderstanding in the application of these two principles. It is in this context that the comments of the rest of the Bench in Prest are most relevant. Baroness Hale, quite correctly, questioned whether all cases would fall neatly into cases of either concealment or evasion. (see para 92). Her comment that where the doctrine is sought to be utilised to convert the liability of the controller of the company to the company itself, the utilisation of the agency concept and the 'directing mind' would be more appropriate than the doctrine of piercing of the veil. I would respectfully concur with these statements; (vi) Having reviewed some of the relevant case-law in this jurisdiction, I conclude, with respect, that there has been no confusion in the application of the principles. Firstly all relevant principles in keeping with the law throughout the Commonwealth have been adhered to. This is marked by the move from the general and somewhat amorphous test of 'in the interests of justice' in earlier case law to the clear boundaries drawn in Law Kam Loy v. Boltex (above) where disregarding the corporate veil was stated to be applicable when there was evidence of actual fraud at common law or unconscionable or inequitable conduct amounting to fraud in equity. This position in law was then expanded in Gurbachan Singh ('above') where the test and rationale expressed in Prest were considered. In the present appeal, I have sought to clarify the position in law further as above.” (emphasis added). 12. Premised on the Concealment Principle as elucidated in Ong Leong Chiou and the meaning of constructive fraud as explained in Rasiah S/N uO8MGtmACEiZEvpfKFIvg 12 **Note : Serial number will be used to verify the originality of this document via eFILING portal Munusamy, I am of the view that the Defendant has succeeded to discharge the onus to raise a triable issue so as to defeat Enc. 10. In my opinion, there is a triable issue on whether the court should exercise its discretion to lift corporate veil of the Plaintiff (to reveal that MEB controls the Plaintiff) so as to prevent constructive fraud or unconscionability from being committed by MEB (through the Plaintiff) against Wabag (Triable Issue). The existence of the Triable Issue is based on the following evidence and reasons: (1) by virtue of the JVDA, in particular - (a) Recital A (JVDA), Recital B (JVDA), Recital C (JVDA) and Recital D (JVDA). It is to be noted that the court may refer to a recital to an agreement in the interpretation of the agreement - please refer to the judgment of Gopal Sri Ram JCA (as he then was) in the Court of Appeal case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719, at 732; and (b) clauses 2.1.1, 2.1.2, 2.3 and 8.1 JVDA the JV (Wabag-MEB) had been formed on 70:30 Basis with the Defendant as the “Joint Venture Vehicle” (JV Vehicle). The very name of the Defendant bears testimony to the fact that the Defendant is the JV Vehicle. The JV (Wabag-MEB) is a “relational contract” which is based on mutual trust and confidence between Wabag and MEB. I cite the following judgment of Leggatt (as he then was) in UK’s High Court in S/N uO8MGtmACEiZEvpfKFIvg 13 **Note : Serial number will be used to verify the originality of this document via eFILING portal Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] 1 All ER (Comm) 1321, at [142] - “[142] In some contractual contexts the relevant background expectations may extend further to an expectation that the parties will share information relevant to the performance of the contract such that a deliberate omission to disclose such information may amount to bad faith. English law has traditionally drawn a sharp distinction between certain relationships - such as partnership, trusteeship and other fiduciary relationships - on the one hand, in which the parties owe onerous obligations of disclosure to each other, and other contractual relationships in which no duty of disclosure is supposed to operate. Arguably at least, that dichotomy is too simplistic. While it seems unlikely that any duty to disclose information in performance of the contract would be implied where the contract involves a simple exchange, many contracts do not fit this model and involve a longer-term relationship between the parties to which they make a substantial commitment. Such 'relational' contracts, as they are sometimes called, may require a high degree of communication, co-operation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties' understanding and necessary to give business efficacy to the arrangements. Examples of such relational contracts might include some joint venture agreements, franchise agreements and long-term distributorship agreements.” (emphasis added); S/N uO8MGtmACEiZEvpfKFIvg 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal (2) the provisions in the SA, in particular Recital E (SA), Recital F (SA) and Recital G (SA), support the creation of the JV (Wabag-MEB) and the incorporation of the Defendant as the JV Vehicle; (3) in accordance with clause 5.4(1) JVDA and clause 10.4(2) SA, all monies received by the Defendant from the Owner regarding the Works “shall” be deposited into the Collection Bank Account; (4) 90% of the sums received from the Owner in the Collection Bank Account, “shall” be transferred to the Operating Bank Account - please refer to clause 5.4.3(a) JVDA; (5) clause 5.4(4) JVDA provides that the Defendant’s Cost/Expense to be paid out from the Operating Bank Account, “shall” be determined by the EXCO; (6) clause 12(1)(a) to (f) SA has expressly provided for a particular manner to distribute the Defendant’s funds [Distribution Priority (SA)]; (7) all the shares in the Plaintiff are owned by MEB; (8) if the court does not lift the corporate veil of the Plaintiff to reveal that MEB controls the Plaintiff, constructive fraud, equitable fraud or unconscionability may have been committed by MEB (through the Plaintiff) against Wabag as follows - (a) if the Defendant pays the Total Sum (Plaintiff’s Claim) to the Plaintiff pursuant to the Documents (Plaintiff’s Works) adduced S/N uO8MGtmACEiZEvpfKFIvg 15 **Note : Serial number will be used to verify the originality of this document via eFILING portal in support of Enc. 10, this will allow MEF to circumvent the following obligations owed by MEF to Wabag - (i) clause 5.4.(4) JVDA requires the Defendant’s Cost/Expense [including the Total Sum (Plaintiff’s Claim)] to be paid from the Operating Bank Account as determined by EXCO. EXCO has not decided for the Defendant to pay the Total Sum (Plaintiff’s Claim) from the Operating Bank Account; (ii) the payment of the Total Sum (Plaintiff’s Claim) from the Operating Bank Account by the Defendant to the Plaintiff, will defeat the Distribution Priority (SA) as stipulated in clause 12(1)(a) to (f) SA; and (iii) according to clause 8.1 JVDA, the liability of Wabag and MEB as between themselves for “any claim, debts, … damages” claimed by any person arising out of the JV (Wabag-MEB) in respect of the performance of the Contract [including the Total Sum (Plaintiff’s Claim)], “shall” be on 70:30 Basis. If the Defendant pays the Total Sum (Plaintiff’s Claim) to the Plaintiff, WABAG will suffer financially in excess of 70:30 Basis, ie., Wabag will incur loss regarding the Contract in excess of 70% which has been already agreed in clause 8.1 JVDA; and (b) it is stated in the Defendant’s BOD Minute (28.9.2021), among others - S/N uO8MGtmACEiZEvpfKFIvg 16 **Note : Serial number will be used to verify the originality of this document via eFILING portal “ANY OTHER BUSINESS/ACTION TAKEN REPORT 1. Amount owing to Muhibbah’s Group CLK [Mr. Chong Lai Keong (from MEB)] brought to [BOD’s] attention of an amount due to Muhibbah and its group entities. After some discussions, the [BOD] agreed to pay all due payments, priority to [the Plaintiff] and MEB Construction Sdn. Bhd. (“MEBC”) about RM4 million upon receipt of the JV’s money of RM4.8 million from offshore account. RDM [Mr. Rajiv Devraj Mittal, Wabag’s Managing Director and Group Chief Executive Officer] informed that RM4.8 million has already been approved and processed and the same amount should be remitted to the [Defendant’s] Bank account in Malaysia within a week from today. The [BOD] noted. On a separate note, the [BOD] agreed that the due payments of [the Plaintiff] should be the first to be paid immediately upon receipt of shareholder’s contributions.” (emphasis added). The Defendant’s BOD Minute (28.9.2021) showed an alleged “collateral agreement” between Wabag and MEB that the Defendant should pay the Plaintiff upon the Defendant’s receipt of RM4.8 million from Wabag and MEB [Alleged Collateral Contract (Wabag-MEB)]. The Defendant’s BOD Minute (28.9.2021) had been exhibited as exhibit “MS-5” in the Defendant’s affidavit affirmed by Encik S/N uO8MGtmACEiZEvpfKFIvg 17 **Note : Serial number will be used to verify the originality of this document via eFILING portal Mohamad Sabri Bin Sabar on 23.2.2022 (Defendant’s 1st Affidavit). The Plaintiff’s affidavit affirmed by Mr. Pang on 17.3.2022 had replied to the Defendant’s 1st Affidavit (Plaintiff’s 2nd Affidavit). The Plaintiff’s 2nd Affidavit did not deny the contents of the Defendant’s BOD Minute (28.9.2021). On the contrary, the Plaintiff’s 2nd Affidavit and written submission of the Plaintiff’s learned counsel had relied on the contents of the Defendant’s BOD Minute (28.9.2021) to support Enc. 10. If I have allowed Enc. 10, such a decision may allow MEB to evade the Alleged Collateral Contract (Wabag-MEB); and (9) the circumvention of the obligations owed to Wabag by MEF (through the Plaintiff) [as elaborated in the above sub-paragraph (8)] constitutes constructive fraud, equitable fraud or unconscionability as explained in Rasiah Munusamy. 13. All the cases cited by the Plaintiff’s learned counsel in support of Enc. 10, can be easily distinguished from this case due to the existence of the Triable Issue - please refer to the above paragraph 12. D. Is there “some other reason” for a trial in this case? 14. In UK’s Court of Appeal case of Bank fur Gemeinwirtschaft Aktiengesellschaft v City of London Garages Ltd. [1971] 1 WLR 149, at 158 (London Garages), Cairns LJ has explained circumstances which may constitute “some other reason to be a trial” (which will defeat a summary judgment application) as follows: S/N uO8MGtmACEiZEvpfKFIvg 18 **Note : Serial number will be used to verify the originality of this document via eFILING portal “… It is not difficult to think of other circumstances where it might be reasonable to give leave to defend although no defence was shown: for example, if the defendant was unable to get in touch with some material witness who might be able to provide him with material for a defence; or if the claim were of a highly complicated or technical nature which could only properly be understood if oral evidence were given; or if the plaintiff’s case tended to show that he had acted harshly and unconscionably and it was thought desirable that if he was to get judgment at all it should be in the full light of publicity.” (emphasis added); London Garages has been followed by our Federal Court in United Merchant Finance, at p. 667. 15. Even if it is assumed that the Defendant has failed to raise a triable issue to resist Enc. 10, I will still unhesitatingly dismiss Enc. 10 on the ground that there should be a trial of this case pursuant to O 14 r 3(1) RC (there ought for some other reason to be a trial). This decision is premised on the following evidence and reasons: (1) it is unconscionable for the Plaintiff to obtain summary judgment against the Defendant - please refer to the above paragraph 12; and (2) the Plaintiff should only obtain judgment against the Defendant after - (a) the Defendant has been afforded its right to persuade the court to exercise its discretion to lift the corporate veil of the Plaintiff (to reveal that MEB controls the Plaintiff) so as to prevent constructive fraud, equitable fraud or unconscionability from S/N uO8MGtmACEiZEvpfKFIvg 19 **Note : Serial number will be used to verify the originality of this document via eFILING portal being perpetrated by MEB (through the Plaintiff) against Wabag; and (b) a trial in the “full light of publicity”. E. Court’s decision 16. The upshot is a dismissal of Enc. 10 with costs. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 14 SEPTEMBER 2022 Counsel for Plaintiff: Mr. Joshua Chong Wan Ken & Ms. Loo Hui En (Messrs Raja, Darryl & Loh) Counsel for Defendant: Ms. Aarthi A/P Jeyarajah (Messrs Aarthi & Associates) S/N uO8MGtmACEiZEvpfKFIvg 20 **Note : Serial number will be used to verify the originality of this document via eFILING portal