1. ) NIK HAMDAN BIN DAUD 2. ) BARAKAH OFFSHORE PETROLEUM BERHAD 3. ) PBJV GROUP SDN BHD 1. ) SAMLING ENERGY SDN. BHD. 2. ) UNITED POWER GROUP HOLDINGS LIMITED 3. ) YAW HOLDING SDN. BHD. 4. ) SAMLING RESOURCES SDN. BHD 5. ) CHEW THEAM HOCK 6

WA-22NCC-459-09/2020 Kand. 160 05/04/2022 12:01:27 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) CIVIL SUIT No: WA-22NCC-459-09/2020 BETWEEN 1. NIK HAMDAN BIN DAUD [Identity Card No.: 670108035751] 2. BARAKAH OFFSHORE PETROLEUM BERHAD [Company No.: 201201007022/980542-H] 3. PBJV GROUP SDN BHD [Company No.: 524536-A] … PLAINTIFFS AND 1. SAMLING ENERGY SDN. BHD. [Company No.: 532513-H] 2. UNITED POWER GROUP HOLDINGS LIMITED [Company No.: 1588378] 3. YAW HOLDING SDN. BHD. [Company No.: 163758-D] 4. SAMLING RESOURCES SDN. BHD [Company No.: 198501006938/139379-P] 5. CHEW THEAM HOCK [Identity Card No.: 610517075581] 6. YAW TECK SENG @ HIEW TECK SENG [Identity Card No.: 381027135119] 7. MAGNADRIVE SDN. BHD. [Company No.: 201501043102/1168423-A] 8. SYARIKAT SAMLING TIMBER SDN. BHD. [Company No.: 197601003946/30211-A] … DEFENDANTS S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 GROUNDS OF JUDGMENT Introduction [1] The 1st , 3rd , 4th , 6th , 7th and 8th Defendants’ filed a notice of application in enc. 94 on 15.10.21 to strike out paragraphs 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, 32, 33, 37, 38, 38, 40, 42, 45, 50, 60 and 62 of the Amended Statement of Claim (“ASOC”) for non-compliance with an Unless Order in enc. 91 to furnish further and better particulars and in consequence of the striking out of the above paragraphs, the Amended Writ and ASOC dated 20.10.2020 against the1st , 3rd, 4th 6th, 7th and 8th Defendants be struck out as no longer disclosing any reasonable cause of action against these Defendants. [2] On 25.01.2022, the application in Enc. 94 was allowed with costs. [3] The 5th Defendant also made an application on 25.1.2022 in Enc. 122 to strike out the Amended Writ and ASOC against him on the grounds that with the striking out of paragraphs 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, 32, 33, 37, 38, 39, 40, 42, 45, 50, 60 and 62 of the ASOC, the ASOC (as it now stands) does not give rise to any enforceable claim against the 5th Defendant. [4] On 23.02.2022, the application in Enc. 122 was allowed with costs. [5] As the matters were related, it is convenient to deal with both Enc. 94 and Enc. 122 in one judgment. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Background to making the Order for further and better particulars and Unless Order in Enc. 91 [6] The 1st, 3rd, 4th, 6th, 7th and 8th Defendants’ had in Enc. 13 at a nascent stage of this action, applied to strike out the Writ and Statement of Claim grounded on Order 18 r 19(1)(a), (b) and/or (d) of the Rules of Court 2012 (“ROC 2012“) and/or under the inherent powers of the Court. [7] The 5th Defendant too had previously in Enc. 36 also applied to strike out the Amended Writ and Statement of Claim grounded on the same rules. [8] These 2 striking applications in Enc. 13 and enc. 36 were respectively dismissed on 15th March 2021 and 30th March 2021. The reasons for dismissing the applications, the background leading to the filing of this suit, the nature of the Plaintiffs’ suit have been set out in my grounds of judgment dated 8.5.21 – see Nik Hamdan bin Daud & Ors v Samling Energy Sdn Bhd & Ors [2021] MLJU 769 ; [2021] 1 LNS 667 (“the 1st grounds of judgment”). I had found inter alia triable issues and although the particulars pleaded in the ASOC were wanting, at paragraph 27 of the 1st grounds of judgment, I had stated: “[27] Before I move on to consider the issues in the application under O. 18 r. 19(1) (b) and/or O. 18 r. 19(1) (d), I recognize that it is trite law that parties are bound by their pleadings and the Plaintiffs may have been short on particulars on the exact and nature of the commercial information alleged to be confidential; when the alleged confidential commercial information was made known to the Board of Directors of the 2nd Plaintiff including the 5th Defendant; and when and how such alleged confidential commercial information was said to have been “accessed” by the Defendants, the insufficient particulars or defective pleading S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 to show that the 5th Defendant had breached its fiduciary duties. I would however state that the Courts have on numerous occasions held that O.18 r. 19 (1) 2012 Rules confers a discretion on the court to allow a plaintiff to amend the statement of claim (instead of striking out summarily the suit). I refer only to 2 of such authorities: (i) Mahadev Shankar JCA’s judgment in the Court of Appeal in Muniandy s/o Subrayan & Ors v Chairman & Board Members of Koperasi Menara Maju Bhd [1991] 1 MLJ 557, at 560 and 561; and (ii) the judgment of Gopal Sri Ram JCA (as he then was) in the Court of Appeal case of Shahidan Shafie v Atlan Holding Bhd & Anor & Other Appeals [2005] 3 CLJ 193, at 803.” [9] The appeal against the refusal to strike out in Enc. 36 was affirmed by the Court of Appeal on 16.11.2021 whilst the appeal against the refusal to strike out in Enc. 13 is pending. [10] Pre-trial directions were handed out with trial dates fixed in November 2021. The November trial dates were eventually shifted to February and March 2022 to make way for an old part heard case transferred to this Court. [11] The Plaintiffs did not apply to amend the Statement of Claim. Enc. 74 for further and better particulars (which was preceded by a written letter dated 10.5.2021 requesting for the same) was filed by the1st, 3rd, 4th, 6th, 7th and 8th Defendants on 28.5.2021, in the course of complying with the Court’s pre-trial directions essentially on the basis that the Plaintiffs' claims are insufficiently pleaded and lack the requisite particulars relevant to the salient issues in this suit. The further and better particulars of the Plaintiffs’ ASOC sought to be furnished is to allow the Defendants to properly and fairly prepare for the trial, based on 3 main areas: S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 11.1 The Defendants had contravened section 188(2) of the Capital Markets and Services Act 2007 (“CMSA 2007”) on insider dealing with regards to the shares in the 2nd Plaintiff held and/or disposed off by the 7th Defendant (“the Said Shares”), as pleaded cumulatively in paragraphs 22, 25, 28, 31-43 and 64 of the ASOC (“the Insider Dealing Claim”); 11.2 the Plaintiffs have a legitimate expectation, arising from the previous contractual relationship/dealings between the 3rd Plaintiff and the 4th Defendant and/or under the Consortium Agreement dated 29.11.2017 executed between the 3rd Plaintiff, the 1st Defendant and Brooke Dockyards , to be given any oil and gas contracts obtained by the Defendants or any one of them as pleaded cumulatively in paragraphs 24, 48-63 of the ASOC (“the Legitimate Expectation Claim”);and 11.3 the Defendants stole the Plaintiffs’ workers (“the Poaching Claim”). [12] This Court on 29.7.2021 allowed the 1st , 3rd , 4th , 6th , 7th and 8th Defendants’ application in Enc. 74 to be complied within thirty (30) days from the date of the Order (Enc. 91). There was no appeal by the Plaintiffs against this order. [13] Enc. 91 dated 29.7.2021 contained an Unless Order which states that the Writ and Amended ASOC filed herein be struck off with costs in the event that the Plaintiffs fail to furnish the further and better particulars sought (“the Unless Order”). S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Enc. 94 [14] Pursuant to the order in Enc. 91, the Plaintiffs were to file the affidavit to furnish the further and better particulars sought by 30.8.2021 which they ostensibly did in Enc. 89. The 1st, 3rd, 4th, 6th, 7th and 8th Defendants’ dissatisfaction with the want of particulars supplied gave birth to Enc. 94. 2nd Unless Order made [15] It is pertinent for me to state that when Enc. 94 was first heard on 14.1.2022, this Court having read the submissions of the parties was of the view that the Plaintiffs went off tangent as the thrust of their arguments were predicated on the previous application in Enc. 13 pursuant to Order 18 r 19 and how the Court of Appeal had affirmed this Court’s decision on the finding of triable issues; forgetting in fact that the Court of Appeal affirmation pertained to the 5th Defendant’s appeal whilst the appeal against the decision in Enc. 13 is still pending at the Court of Appeal. I held the view that the Plaintiffs had confused themselves with issues to be tried rather than concentrate on compliance with the Order in Enc. 9. By dint of the fact that that once an “Unless Order” is enforced, it prevents the Plaintiffs from proceeding with their case, I had, with a view that striking out ought to be sparingly exercised, and to meet the ends of justice, afforded another opportunity to the Plaintiffs to comply. As such, a second “Unless Order“ was made by this Court to the effect that if the particulars ordered are not complied with before the next hearing date of 25.1.2022, the Plaintiffs’ claim will be struck off. At this point of time, trial dates were nigh. Enc. 94 was then adjourned to 25.1.2022 for hearing. Separately, parties were directed to comply with the pre-trial directions S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 given in October 2021 by 25.1.2022. The parties were informed that the Court, having given directions, may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss the action or strike out the defence or enter judgement or make such order as it thinks fit. Additional trial dates of 8th and 9th March 2022 were also fixed. [16] The Plaintiffs, in seeming compliance with the 2nd Unless Order, filed an affidavit in Enc. 121 on 24.1.2022. At the hearing on 25.1.2022, the Plaintiffs maintained that they believed they had complied and argued that the Court of Appeal had found triable issues. The Plaintiffs also relied on their affidavit affirmed on 28.10.21 (Enc. 96). 1st, 3rd, 4th, 6th, 7th and 8th Defendants’ arguments [17] Notwithstanding Enc. 96 and Enc. 121 filed by the Plaintiffs, the Defendants stood their ground that there was inadequate or a wilful refusal to comply. On the facts of the present case, I am in accord with the arguments canvassed by the 1st, 3rd, 4th, 6th, 7th and 8th Defendants’ learned counsel and adopt part of his submissions in these grounds. [18] Learned counsel pointed out that: 18.1 In Lee Kuan Yew v Chin Vui Khen & Anor [1991] 3 MLJ 494, the Plaintiff successfully applied for the Defendants to provide particulars of the defences of justification. The Plaintiff was not satisfied with the manner the particulars were filed and put in a subsequent application to strike out the particulars as well as the defence. The Defendants were then ordered by the Court to restate their further and better S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 particulars to which the Defendants provided a second set of further and better particulars. The Plaintiffs applied again to strike out the particulars as well as the defence. Siti Norma Yaakob J (as her Ladyship then was) struck out the relevant paragraphs of the defence for failure to comply with the Court’s order to supply further and better particulars, holding that: 18.1.1 Reference to documents alone can never be regarded as the particulars of fact that the party has been ordered to furnish; 18.1.2 Specific acts and instances of misconduct imputed must be supported by precise particulars of fact as tending to show the truth of such misconduct; 18.1.3 The particulars supplied are too general as to embarrass the requesting party as he does not know the precise acts, he is alleged to have done which justify the charges against him; 18.1.4 Pleading the general particulars is unnecessary and redundant; and 18.1.5 Most importantly, the conduct of the party and their reluctance to supply sufficient and material particulars led to the conclusion that they did not have the material facts on which they can justify their pleadings/allegations. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 18.2 In the case of Cheong Chee Kwong v C S Metal Industries (M) Sdn Bhd [1998] MLJU 261, the Sessions Court struck out the entire action for non-compliance with an unless order when the Plaintiffs filed the further and better particulars outside the time limit ordered by the Sessions Court. 18.3 In a recent Hong Kong Case of Chan Luen v Chan Kwong Chi & Ors [2020] HKCU 1296, Coleman J struck out all the relevant paragraphs in the Amended Defence and Counterclaim when the Defendants failed to comply with the unless order to supply the necessary particulars sought. Coleman J held as follows: “[27] … The averments are to be struck out because of the failure to have complied with the Unless Order…. In the time granted, including the extensions of time and that available pursuant to the terms of the Unless Order, the defendants failed to provide the particulars ordered. It does not matter for the present purposes whether that failure was born of inability, unwillingness or simple intransigence. Once the particulars have not been provided as required under the Unless Order, the consequence is that the averment is to be struck out.”.(counsel’s emphasis) [19] The Defendants’ Learned Counsel submitted that the contents of the Plaintiffs’ affidavits tantamount to a blatant disregard of Enc. 91; there is outright refusal to answer some of the questions, despite the court order compelling them to do so, purportedly, on the basis canvassed by the S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 Plaintiffs that the questions should be answered during the trial, and this greatly prejudiced the Defendants’ preparation for trial since the salient particulars of the Plaintiffs’ principal allegations in the ASOC are deficient as they stand. [20] I now consider the particulars furnished by the Plaintiffs to see if Enc. 91 was complied with. To assist the Court to appreciate the Defendants’ arguments, learned counsel had helpfully enumerated the following details of particulars sought, the particulars furnished and Defendants’ summary of non-compliance: DEFENDANTS’ REQUEST SUMMARY OF COMMENTARY ON COMMENTARY ON PLAINTIFFS’ ANSWERS PLAINTIFFS’ 2ND PLAINTIFFS’ 1ST IN 2nd AFFIDAVIT AFFIDAVIT AFFIDAVIT Questions a) i, ii and iii in Found at Enclosure 121 - The Plaintiffs are As derived from the case relation to Paragraph 17 of Paragraph 3 confusing evidence with of Lee Kuan Yew, SOC facts which ought to be references to documents Please state the particulars of The Plaintiffs state that pleaded. Furthermore, the alone (let alone how the 6th Defendant is there is evidence of Plaintiffs cannot lead documents which are alleged to have control over meetings between the “proof” of meetings devoid publicly available) are all the Defendants as a Defendants which show of the particulars, dates, not sufficient particulars. shadow director. that instructions and time and venue of such The Plaintiffs have failed approvals are given by meetings. Essentially to provide any factual Yaw Teck Seng (D6). there are no particulars particulars over and disclosed. above these publicly available documents whatsoever. Questions b) i and ii in Found at Enclosure 121 - The Plaintiffs are again The Plaintiffs have relation to Paragraph 18 of Paragraphs 4 to 7 merely repeating the essentially repeated the SOC contents of publicly contents of their previous The Plaintiffs state the available SSM Searches answer while referring to BOD appointments and Please state the particulars which do not constitute the same publicly shareholdings of the and time period of how and sufficient particulars as available documents, rd respective Defendants to when the 3 Defendant is per their previous affidavit. without providing any impute control. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 DEFENDANTS’ REQUEST SUMMARY OF COMMENTARY ON COMMENTARY ON PLAINTIFFS’ ANSWERS PLAINTIFFS’ 2 ND PLAINTIFFS’ 1ST IN 2nd AFFIDAVIT AFFIDAVIT AFFIDAVIT alleged to specifically have a factual particulars scope of influence and power whatsoever. They over the direction of the 1st refused and/or failed to nd and 2 Defendants? provide particulars of rd how the 3 Defendant is alleged to specifically have a scope of influence and power over the direction of the 1st and 2nd Defendants. Questions c) i and ii in Found at Enclosure 121 - The Plaintiffs are again The Plaintiffs have relation to Paragraph 21 of Paragraphs 8 to 9 repeating their reliance on essentially repeated the SOC the group structure of the contents of their previous The Plaintiffs refer to the companies and alluding to answer while referring to Please state the particulars of Shareholding of meetings without the same publicly rd how the 3 Defendant is companies and various particulars on the dates, available documents, alleged to have a power of meetings to impute venues and times. without providing any influence and access to control. factual particulars nd knowledge in the 2 Plaintiff whatsoever. through the 2nd Defendant. Questions e) i and ii in Found at Enclosure 121 - The Plaintiffs are merely The Plaintiffs are merely relation to Paragraph 23 of Paragraphs 11 to 15 repeating the corporate repeating previous non- SOC structure of the companies answers and the makeup The Plaintiffs state the with no particulars or basis of the Defendant Please state the particulars of corporate structure of the provided at all with regards companies (ie. directors how the 4th Defendant is respective parties with to the allegations of control and structure of the alleged to be under the bare and influence. group) without control and influence of each allegations/assertions of elaborating on any of the of the other directors and the the 6 Defendant’s control th specific particulars particulars of all contracts over the other Defendants requested. th entered into between the 4 devoid of particulars. rd Defendant and the 3 Plaintiff The Plaintiffs have which this Plaintiff is relying merely stated a close upon to qualify the contractual relationship between the rd relationship with the 3 4th Defendant and Plaintiff? Joseph Lau without S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 DEFENDANTS’ REQUEST SUMMARY OF COMMENTARY ON COMMENTARY ON PLAINTIFFS’ ANSWERS PLAINTIFFS’ 2 ND PLAINTIFFS’ 1ST IN 2nd AFFIDAVIT AFFIDAVIT AFFIDAVIT providing particulars of how control and influence on the other parties is alleged to be present. Questions f) i, ii, iii, iv and v Found at Enclosure 121 - The Plaintiffs are again Plaintiffs again falling in relation to Paragraph 24 Paragraphs 16 to 18 refusing to provide back on existing albeit of SOC particulars of how this inadequate plea which The Plaintiffs now claim legitimate expectation resulted in the Court that the legitimate came about and is stating Order- Please state the factual expectation is based on a that such particulars will particulars and/or basis of the Global understanding, the only be shown at trial. duty or legitimate expectation details of which are in rd th th owed by the 3 , 4 and 6 Bursa Announcements Defendants to the Plaintiffs. and will be divulged at the full trial. Questions g) i to viii and Found at Enclosure 121 - The Answers provided are As stated in Lee Kuan Questions h) i to v in relation Paragraphs 19 to 22 and mere repetitions which are Yew, mere repetitions of to Paragraph 25 and 28 of 26 devoid of particulars and previous answers and SOC allude to bare general statements allegations/SSM Searches which lack any specific Please state the particulars of The Plaintiff has again without details. particulars do not how is the 5th Defendant and alluded to bare allegations constitute sufficient Joseph Lau legal proxies of and the contents of a SSM particulars. the Defendants and how such search devoid any factual a duty as alleged is owed to particulars whatsoever. the Plaintiffs? Please also state if the 2nd Plaintiff has disclosed to Bursa Malaysia that the 5th Defendant is a legal proxy under Chapter 9 of the Main Market Listing Requirements or otherwise. Questions i) i to iii and Found at Enclosure 121 - The Plaintiffs here have Again, the Plaintiffs Questions (l) & (m) in relation Paragraphs 23 to 31 given an unusual non- merely repeat the S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 DEFENDANTS’ REQUEST SUMMARY OF COMMENTARY ON COMMENTARY ON PLAINTIFFS’ ANSWERS PLAINTIFFS’ 2 ND PLAINTIFFS’ 1ST IN 2nd AFFIDAVIT AFFIDAVIT AFFIDAVIT to Paragraphs 29, 32, 37 and answer devoid of any general Group Structure 38 of SOC The Plaintiff states that the particulars and an outright of the Defendant Court of Appeal during the refusal to disclose the Companies without Please state the basis of the Striking Out Hearing for particulars until trial. furnishing any specific th alleged duty to maintain the the 5 Defendant has particulars whatsoever. interests of the 2nd Plaintiff ruled that there are It appears that the and to not take any action that complicated issues to be Plaintiffs are also may affect and/or jeopardize tried when dismissing the confusing “issues to be the interests of the 2nd Plaintiff appeal. tried” with “non- in Bursa Malaysia. compliance of a Court Paragraph 31 is most Order” which is the subject Please state the basis for telling when they state that of this Enclosure 94 imposing this duty on each the particulars should only application. and every Defendant. be disclosed by witnesses during trial. Questions j) i to iii in relation Found at Enclosure 121 - The Plaintiff again outright The Plaintiffs have yet to Paragraphs 30 of SOC Paragraph 22 refused to provide the again resorted to particulars until trial. repetition of previous Please state how Joseph Lau The Plaintiff states that answers and referred is alleged to be the legal proxy such particulars should be again to a publicly of all the Defendants. provided by witnesses available Bursa during trial. Announcement without nd Please state if the 2 Plaintiff elaborating on any disclosed or announced to specific or further Bursa Malaysia of Joseph particulars thereof. Lau allegedly being the legal proxy of all the Defendants. If so, please state the exact date of such an announcement. Questions n and o in relation Found at Enclosure 121 - Again, the Plaintiffs repeat In the case of the “insider to Paragraphs 39 and 39 (a) Paragraphs 32 to 36 the Corporate Structure dealings” particulars, the of the SOC and allude to meetings Plaintiffs’ have outright devoid of any particulars. refused to disclose the Please state the exact date The Plaintiffs impute The Plaintiffs also refuse relevant particulars and manner the Defendants connections between to provide further sought despite the Court are alleged to have received parties through the particulars until trial. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 DEFENDANTS’ REQUEST SUMMARY OF COMMENTARY ON COMMENTARY ON PLAINTIFFS’ ANSWERS PLAINTIFFS’ 2 ND PLAINTIFFS’ 1ST IN 2nd AFFIDAVIT AFFIDAVIT AFFIDAVIT the insider information from Corporate Structure and Order compelling them th the 5 Defendant and the state bare allegations that to do so. recipient of the information. information was passed between parties through Furthermore, the Please state the exact date meetings without any purpose of a formal and the manner the further particulars. application for further Defendants are alleged to and better particulars is have given their endorsement The Plaintiffs admit that to prevent any surprises to the 5th Defendant on they may have no during the trial process. 17.6.2019. knowledge of the passing of the alleged insider The Plaintiffs’ outright information. refusal to comply will undoubtedly prejudice The Plaintiffs in paragraph the preparation of the 34 state that more Defendants’ defence. particulars will only be disclosed during trial. Question p in relation to Found at Enclosure 121 - The Plaintiff has provided Even though the plea is Paragraph 39 (b) of the Paragraphs 37 to 38 an unusual response against ALL THE SOC devoid of any of the DEFENDANTS, the The Plaintiffs fail to answer particulars sought Plaintiffs have again Please state when the the question or provide merely referred to the Defendants are alleged to particulars thereof. publicly available Bursa have decided to sell most of Announcement in their shares, the number of respect of the 7th shares alleged to have been Defendant which has th sold via the 7 Defendant and been exhibited in prior whether the 2nd Plaintiff made applications before this any announcements to Bursa Court without furnishing Malaysia of the Defendants’ any additional or specific alleged disposals. particulars thereof. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 The Applicable Law & Findings by this Court [21] On the function of particulars, Ariffin Zakaria J (as his Lordship then was) in Dato’ Seri Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam [2002] 2 MLJ 278; [2002] 2 CLJ 642 referred to the Supreme Court Practice (1997, Vol 1) at p 308 as follows: “The function of particulars is accordingly: (1) to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved (per Lindley LJ in Duke & Sons v Wisden Co (1897) 77 LT 67 at p 68, per Buckley LL in Young (G & W) & Co Ltd v Scottish Union & National Insc Co (1907) 24 TLR 73 at p 74, Aga Khan v Times Publishing Co [1924] 1 KB 675 at p 679); (2) to prevent the other side from being taken by surprise at the trial (per Cotton LJ in Spedding v Fitzpatrick (1888) 38 Ch D 410 at p 413,Thomson v Birkley (1882) 31 WR 230); (3) to enable the other side to know with what evidence they ought to be prepared and to prepare for trial (per Cotton LJ ibid; per Jessel MR in Thorp v Holdsworth (1876) 3 Ch D 637 at p 639; Elkington v London Association for the Protection of Trade (1911) 27 TLR 329 at p 330); (4) to limit the generality of the pleadings (per Thesiger LJ in Saunders v Jones (1877) 7 Ch D 435) or of the claim or the evidence (Milbank v Milbank [1900] 1 Ch 376 at p 385); (5) to limit and define the issues to be tried, and as to which discovery is required (Yorkshire Provident Life Assurance Co v Gilbert and Rivington [1895] 2 QB 148; per Vaughan Williams LJ in Milbank v Milbank [1900] 1 Ch 376; 385); S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 (6) to tie the hands of the party so that he cannot without leave go into any matters not included (per Brett LJ in Philipps v Philipps (1878) 4 QBD 127 p 133; Woolley v Broad [1892] 2 QB 317) — 'All material facts' para 18/7/10: and Wooley v Broad [1892] 2 QB 317). But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings (Dean of Chester v Smelting Corp [1902] WN 5; Hewson v Cleeve (1904) 2 Ir R 536).” [22] In this case, besides the want and/or inadequacy of compliance as pointed out by the Defendants’ counsel, a perusal of the affidavit at Enc. 121 shows: 22.1 the Plaintiffs have failed to state precisely the facts on which the general allegations were pleaded; in fact I had alluded to this in passing in paragraph 27 of the 1st grounds of judgment; 22.2 at paragraphs 3 & 4, the particulars furnished were based on advice of the Plaintiffs’ solicitors; and 22.3 the particulars sought in respect of paragraphs 40, 42, 45, 50, 60 & 62 of the ASOC were not rendered at all: the affidavit simply left these in blank. [23] I now turn to consider whether this is a proper case in which the court should exercise its discretion to strike out the impugned paragraphs in the ASOC and with that, the consequential dismissal of the action against the 1st, 3rd, 4th, 6th, 7th and 8th Defendants. [24] An “unless order” is an order of the Court that directs a party to perform some process requirement by a specified date and states the consequences of transgression. A peremptory or an unless order is an S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 order of last resort (see Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at p 1674H) [25] An “unless order”, being a peremptory order of the Court, must be adhered to and its non-compliance should automatically attract the penalty prescribed in the order – see Dato’ Ting Check Sii v Galaxy Grip Sdn Bhd & Ors [2011] 1 MLJ 646 which followed the English Court of Appeal decision in Reiss v Woolf [1952] 2 All ER 112. [26] The burden is on the Plaintiffs as the defaulter, to explain and show that they had the intention to comply with the ‘Unless Order’ but something beyond their control prevented them from doing that. [27] In the instant case, the terms of the ‘Unless Order’ are in plain terms but there was a failure in complying with the same. Not only that, a 2nd Unless Order was made on 14.1.2022 to afford the Plaintiffs another opportunity to comply, which the Plaintiffs did not. [28] It is my utmost respectful view that the further and better particulars sought are relevant to this suit. The particulars sought are so that the Defendants are informed sufficiently as to the matters alleged against them and enable an efficient conduct of litigation and disposal of the trial. To this end, the order in Enc. 91was made which contained the ‘Unless Order’. [29] The Plaintiffs’ contention that they have complied is easily put paid by gleaning Enc. 121 where interalia, with specific reference to the Lee Kuan Yew principles, particulars were not given at all for numerous areas of the ASOC, nor was there sufficient particulars given pertaining to S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 paragraphs 17, 18, 21, 23, 24, 25, 28, 29, 30, 32, 37, 38 and 39 of the ASOC. I find that the Plaintiffs’ arguments that there are triable issues to be misconceived as the application at hand pertains to refusal to furnish further and better particulars. [30] For those particulars which the Plaintiffs say will be disclosed at trial, with due respect, since the Order in enc. 91 has already been made and perfected, it is too late and unacceptable reason, for they did not appeal the decision. Further, I have no jurisdiction to review the matter and any challenge to my decision of 29.7.2021 lay by way of appeal to the Court of Appeal but there was no appeal. [31] It is apposite to mention that refusal to furnish the further and better particulars ordered will cause further delay in the trial. Nor can it be disputed in the present case that the peremptory order was made in unambiguous terms. The non-compliance of the ‘Unless Order’ coupled with the 2nd “Unless Order” is all the more egregious and gave the impression that the Plaintiffs had little or no respect for the Court’s Order. Sans an appeal or a stay, in my respectful view, the Plaintiffs abdicated their right to refuse to comply. [32] In my view, when evaluating whether to strike out the impugned paragraphs in the ASOC and consequently, the entire action, considerations must be taken into account, in line with the principles enunciated by case law the following factors. [33] First, as to whether the failure to comply was intentional and contumelious, in Re Jokai Tea Holdings [1993] 1 All ER 630, Sir Nicolas Browne-Wilkinson VC said: S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 “In Samuels v Linzi Dresses Limited[1981] QB 115 the court did not give any direct guidance as to the approach to the exercise of the court's discretion in cases where a claim or defence has been struck out by reason of a failure to comply with an 'unless' order beyond saying that such a discretion should be exercised 'cautiously'. However, Roskill LJ referred to the analogous case where the question is whether a plaintiff's claim should be struck out for want of prosecution to which the principles laid down in Birkett v James[1978] AC 297 apply. The first class of case to be considered in Birkett v James is where the plaintiff has been guilty of 'intentional and contumelious conduct'. Disobedience to a peremptory order is 'generally' to be treated as contumelious conduct: Tolley v Morris[1979] 1 WLR 592, 603 per Lord Diplock. Where there has been such contumelious disobedience not only the plaintiff's original action but also any subsequent action brought by him based on the same cause of action will be struck out: Janov v Morris[1981] 1 WLR 1389. The basis of the principle is that orders of the court must be obeyed and that a litigant who deliberately and without proper excuse disobeys such an order is not allowed to proceed.” [34] Peremptory orders are made to be obeyed - Caribbean General Insurance Ltd. v Frizzell Insurance Brokers Ltd. [1994] 2 Lloyd's Rep. 32 per Legatt J. [35] Disobedience to an “Unless Order” would qualify as ‘intentional and contumelious’. [36] Here, the Plaintiffs have had every opportunity to furnish the further and better particulars sought. The ability to comply with the ‘Unless Order’ is entirely within the control of the Plaintiffs, yet they were not forthcoming. In any case, the Plaintiffs also did not even seek an extension of time for compliance, to at least demonstrate the seriousness and sincerity on their part. The last part of the affidavit in Enc. 121 was simply left blank in S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 respect of particulars sought on paragraphs 40, 42, 45, 50, 60 & 62 of the ASOC. [37] The non-compliance is therefore in my utmost respectful view, inexcusable and the failure “intentional and contumelious”. [38] Second, as to whether there is a history of failure to comply with other orders (see Hytec Information Systems supra), the history of litigation show 2 Unless Orders were made. The Court was aware on 14.1.2022 that it previously made an unless order but in the circumstances to meet the ends of justice as explained earlier, afforded the Plaintiffs another opportunity to comply. [39] Thirdly, as to whether the other parties contributed to the failure by the Plaintiffs - see United Malayan Banking Corp Bhd v Palm and Vegetable Oils (M) Sdn Bhd & Ors [1994] 3 MLJ 73, I do not find evidence of the 1st , 3rd , 4th , 6th , 7th and 8th Defendants contributing to the delay. [40] Lastly, I deal with whether the Plaintiffs had made positive efforts to comply but was prevented from doing so by extraneous circumstances see - Hytec Information Systems supra. As stated in the preceding paragraph, there were clearly no extraneous circumstances that prevented the Plaintiffs to adhere to their responsibility to comply with the ‘Unless Order’. I find no satisfactory evidence of positive efforts made by the Plaintiffs working towards ensuring compliance with the ‘Unless Order’ to enable them to escape the consequences of their default. Despite the 2nd Unless Order, I find that the Plaintiffs’ attempts to comply were superficial. As pointed out earlier, the last few paragraphs of Enc. 121 were left blank, which made plain how cavalier the Plaintiffs were. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [41] I have taken into account all the breaches and non-compliance by the Plaintiffs before deciding whether to strike out the impugned paragraphs in the ASOC and in consequence, the striking out of the entire claim against the1st , 3rd , 4th , 6th , 7th and 8th Defendants . Ultimately each case must be decided on its own facts. It cannot be overemphasized enough that the ‘Unless Order’ made on 29.7.2021 and the 2nd Unless Order made on 14.1.2022 were to ensure that the further and better particulars sought are complied with promptly and parties get on with the trial; the Court’s time being such a precious resource these days. [42] I therefore agree with the learned counsel for the 1st, 3rd, 4th, 6th, 7th and 8th Defendants that the refusal to comply in this case can be equated to wilfulness. [43] A significant factor which I have further borne in mind is whether the 1st, 3rd, 4th, 6th, 7th and 8th Defendants will be prejudiced. They should not have to guess on what case to meet, and so that the generality of the pleadings may be limited, issues may be defined, leading to time and costs saved. Ward LJ in Hytec Information Systems supra said at pg 1675: “The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.” [44] Taken as a whole, I find the conduct of the Plaintiffs suggest an evident disregard on their part for the authority of the Court. After all, S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 obedience to orders of the court is the foundation on which the Court’s authority is founded. It is my considered opinion that this is a proper case to which the remedy of striking out the impugned paragraphs in the ASOC and in consequence, the striking out of the entire claim against the1st, 3rd, 4th, 6th, 7th and 8th Defendants will commensurate with and is proportionate to the failure in question. The question in each case was whether the punishment fitted the crime – see: Re Jokai Tea Holdings supra. [45] Accordingly, I exercised my discretion under the inherent jurisdiction of this Court to allow the application in Enc. 94 with costs. Enc. 122 [46] The basis of the 5th Defendant’s application was alluded to in paragraph 3 of this Grounds of Judgment. The 5th Defendant further argued in summary that pursuant to the striking out of paragraphs 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, 32, 33, 37, 38, 39, 40, 42, 45, 50, 60 and 62 of the ASOC: 46.1 all that remains of the Plaintiffs’ pleaded case against the 5th Defendant in essence are broad statements: 46.1.1 that the 5th Defendant was at the material time a director of the 2nd Plaintiff and owed a fiduciary duty to it; 46.1.2 that certain confidential information of the 2nd Plaintiff had been disclosed to the 5th Defendant; and S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 46.1.3 that the (other) Defendants sold their shares in the 2nd Plaintiff to profit themselves at the expense of the Plaintiffs. 46.2 There are no pleaded facts about: 46.2.1 the nature of the confidential information; 46.2.2 how the confidential information was disclosed to and by the 5th Defendant; 46.2.3 to whom the information was disclosed; 46.2.4 the nature of the Plaintiffs’ right which has allegedly been infringed by the 5th Defendant; 46.2.5 how the Plaintiffs suffered loss or damage as a consequence of the other defendants selling their shares. 46.3 As for the Plaintiffs’ claim for loss or damage arising from breach of the Consortium Agreement, what remains of the Plaintiffs’ pleaded case against the 5th Defendant in essence are broad statements: 46.3.1 that the 3rd Plaintiff had entered into a Consortium Agreement with the 1st Defendant; 46.3.2 that the 8th Defendant has entered into an agreement with Petronas Gas Bhd for the maintenance of the Sabah-Sarawak gas pipeline; and S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 46.3.3 that, in breach of the Consortium Agreement or understanding between the parties, the 3rd Plaintiff had been excluded from participating in the projects in Sarawak. 46.4 There are no pleaded facts about: 46.4.1 the 5th Defendant being a party to the Consortium Agreement; 46.4.2 how the Plaintiffs have allegedly reached an understanding with the 5th Defendant in respect of the oil and gas projects; 46.4.3 how the 5th Defendant would be liable to the 3rd Plaintiff; 46.4.4 the nature of the Plaintiffs’ right which has been infringed by the 5th Defendant; and 46.4.5 the acts done by the 5th Defendant which led to the Plaintiffs having suffered loss or damage as a result of the alleged breach of the agreement. [47] As such, it was postulated by the 5th Defendant that the ASOC as it now stands, does not disclose all the necessary facts required to be pleaded for a cause of action to be complete against the 5th Defendant. To allow the proceedings based on such pleadings to proceed further would be an abuse of process of court, and cited in support Sivakumar A/L Varatharaju Naidu v Ganesan A/L Retmanan [2010] 7 MLJ 355 (HC) at para 32-34. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [48] It was further argued by the 5th Defendant that the Plaintiffs’ assertions against all the defendants in these proceedings, including the 5th Defendant, are intertwined – as made clear in paragraph 12 of the ASOC, the defendants in these proceedings are jointly or severally referred to as the Samling Group of Companies; and in most of the paragraphs struck out by order of this Court of 25.01.2022, all defendants were referred to as the “Defendants”. [49] Counsel for the 5th Defendant also contended that paragraphs 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, 32, 33, 37, 38, 39, 40, 42, 45, 50, 60 and 62 of the ASOC having been struck out, the findings or judgment of this Court that, consequent to such striking out, the Plaintiffs’ ASOC no longer disclose a reasonable cause of action against the 1st, 3rd, 4th, 6th, 7th and 8th Defendants remains binding on the Plaintiffs in respect of Enc. 122 by the 5th Defendant. [50] The Plaintiffs’ arguments in essence are as the 5th Defendant is a director of the 2nd Plaintiff, a company secretary of the 3rd Defendant and a current director of the 1st Defendant: 50.1 paragraphs 27, 31, 34, 35 &36 are sufficient to sustain a cause of action against the 5th Defendant for breach of duties as a director of the 2nd Plaintiff; 50.2 s. 213 of the Companies Act 2016 (“the Act”) obligates a director to at all times exercise his powers in the for a proper purpose in good faith and in the interest of the company; 50.3 s. 218 of the Act do now allow a director to use his position, property of the company or information acquired by virtue S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 of his position as director unless with consent or ratification of the company at a general meeting; 50.4 the 5th Defendant has breached his duties by divulging confidential commercial information to Yaw Teck Seng the 6th Defendant; 50.5 the Plaintiffs have pleaded sufficient facts to warrant relief being granted; 50.6 the Court Order of 25.1.22 only binds the Plaintiff and 1st, 3rd, 4th, 6th, 7th and 8th Defendants; and 50.7 the 5th Defendant’s application is caught by res judicata as enc. 36 was determined against the 5th Defendant . [51] Having considered the arguments of the parties, I am of the view that the order dated 25.1.2022 striking out various paragraphs of the ASOC stands as against all parties (including the 5th Defendant) until set aside by the Court of Appeal. [52] The claim by the Plaintiffs against the 5th Defendant have to be viewed in light of the striking out made on 25.1.2022 and I am of the respectful view that: 52.1 for a claim based on the 5th Defendant’s breaches of fiduciary duties, by merely submitting that a director has statutory duties under s. 213 and s. 218 of the Act is not sufficient to sustain a claim for damages for breach of fiduciary duties. The pleading as it stands is bereft of the material facts that bring the breach of fiduciary duties within S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 the scope of those statutory provisions since paragraphs 37 to 40 setting out the breaches have been struck off. In Karun Klasik Sdn Bhd v Tenanga Nasional Berhad[2017] MLJU 2320, Nallini Pathmanathan JCA (now FCJ) held: “[104] Even if the pleading of these statutory provisions is thought to be essential, it ought to be borne in mind that Order 18 Rule 7 requires that all material facts necessary to support a claim are to be pleaded. If a party’s case is premised on a statue, then it is incumbent upon that party to plead all material facts necessary to bring itself within the ambit of that particular statute (see Malaysian Civil Procedure 2015, Volume 1 published by Sweet & Maxwell). Conversely, it would be entirely inadequate for such a party to plead a particular statute but not then plead the necessary facts to fall within its ambit. As such a court should be slow to strike out a claim for simply failing to set out a specific provision of a statute when the material facts allowing the claimant to fall within the ambit are sufficiently clear. (This does not apply to matters which are required to be specifically pleaded as set out in Order 18 Rule 8 and which deals with pleadings subsequent to a statement of claim for example limitation, fraud, performance and release etc. Nor would it be the case when the cause of action arises solely from a statute). [105] The function of pleadings is to ensure that neither party in the adversarial system is taken by surprise or unfairly prejudiced by one party suddenly relying on a claim which had not been envisaged, thereby occasioning such adversary an unfair advantage.” (emphasis added) 52.2 As for the loss in share price of the 2nd Plaintiff as a result of the 7th Defendant selling shares held by it in the 2nd Plaintiff, if the loss in share price as alleged by the Plaintiffs is due to S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 disclosure of confidential information by the 5th Defendant, it is material to plead the full particulars of the confidential information alleged to be disclosed, to whom it was disclosed and how disclosed. The ASOC as it now stands contain only mere general or vague allegations which are inadequate. The 5th Defendant is entitled to know what is the private and confidential information allegedIy disclosed by him to enable him to prepare his case. In addition, s 188 of the CMSA 2007 provides that a person is an "insider" if that person possesses information that is not generally available which on becoming generally available, a reasonable person would expect it to have a material effect on the price or the value of securities. All the more, I find therefore, the alleged confidential information ought to be pleaded. The amended ASOC has nothing on what confidential information was revealed at the board meetings of August 2018 until May 2019, nor how such information were used for the sale of shares in the 2nd Plaintiff by the 7th Defendant. 52.3 Regarding the loss from breach of the Consortium Agreement in the ASOC, the Plaintiffs’ submissions do not touch on this. However it is to be noted, the Consortium Agreement was entered between the 3rd Plaintiff and the 1st Defendant. The 5th Defendant is not a party. Acts allegedly done by the 5th Defendant and how he was involved that lead to a breach of the Consortium Agreement are not pleaded. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 [53] Having examined the Plaintiffs‘ reliance on paragraphs 27, 31, 34, 35, 36 & 41 of the reamended SOC carefully, I am at a loss how these paragraphs on their own can afford in themselves, a basis on which to found a cause of action between the Plaintiffs and the 5th Defendant as there are plainly insufficient material facts pleaded. [54] As to the meaning of the phrase 'cause of action', I can do no better than to reproduce the distillation of the Federal Court in Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749. The Federal Court referred to various cases in which the term had been defined or discussed: “[12] In Letang v Cooper [1965] 1 QB 232, at pp 242–243, Lord Diplock defined a 'cause of action' as 'a factual situation the existence of which entitled one person to obtain from the court a remedy against another', which definition was adopted in Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230, where Abdul Hamid Ag LP, as he then was, appended that 'there must be a cause of action before a plaintiff can claim a relief in an action'. In Government of Malaysia v Lim Kit Siang, United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 at p 19, the Supreme Court per Salleh Abbas CJ, expounded that to make up 'a cause of action', first, the plaintiff has a right at law or by statue and secondly, the right has been affected by the act of the defendant: A cause of action is a statement of facts alleging that a plaintiff's right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action. Lord Diplock in Letang v Cooper [1965] 1 QB 232 at p 242 defined 'a cause of action' to mean 'a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person'. In my view the factual situation spoken of by Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudiced by the appellant/defendant's act. S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [13] But other than that addendum by Salleh Abas CJ, the definition of 'cause of action' as expounded in Letang v Cooper was readily adopted, by the former Supreme Court in Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 and New Zealand Insurance Co Ltd v Ong Choon Lin (t/a Syarikat Federal Motor Trading) [1992] 1 MLJ 185, and by the Court of Appeal in Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor [2008] 2 MLJ 11, Lembaga Kumpulan Wang Simpanan Pekerja v Ong Lian Chee (suing as administrator of the estate of Goh Tin Poh, deceased) [2010] 4 MLJ 762, and Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192. [14] Other authorities, inter alia, Tuan Haji Ishak bin Ismail & Ors v Leong Hup Holdings Bhd and other appeals [1996] 1 MLJ 661, Mohamed Yusop bin Abdul Wahab v American Express (M) Sdn Bhd [2002] 6 MLJ 507, Goh Joon v Kerajaan Negeri Johor & Ors [1998] 7 MLJ 621, applied the following definition found in Stroud's Judicial Dictionary (5th Ed) at p 378: A 'cause of action' is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment (per Esher MR, Read v Brown (1988) 22 QBD 128; this case was applied in Bennett v White [1910] 2 KB 643). [15] In Nasri v Mesah [1971] 1 MLJ 32, the Federal Court per Gill FJ, as he then was, depicted 'a cause of action' as follows: “A 'cause of action' is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment (per Lord Esher MR in Read v Brown (1888) - 22 QBD 128 at p 131). In Reeves v Butcher [1891] 2 QB 590 at p 511 Lindley LJ said:” (emphasis mine) [55] Whilst this Court had earlier declined to strike out the action under Enc. 36, the pivotal point is that Enc. 122 is premised on the ASOC as it S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 now stands post striking out of paragraphs 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, 32, 33, 37, 38, 39, 40, 42, 45, 50, 60 and 62. The vital question then is whether the 5th Defendant would know what case he is supposed to meet. Premised on lack of particularity, I do not see a cause of action made out by the Plaintiffs at all against the 5th Defendant. [56] As such, Enc. 122 is allowed. Considering that much time had been expended on complying with pre-trial directions by way of the common bundle of documents, agreed facts and agreed issues and other incidental matters to get the case ready for trial, I am of the view that costs of RM10,000.00 subject to allocator is reasonable. Dated: 1st April 2022 - sgd - ……………………….. Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Ismail bin Mohamed Arifin Siti Fatimah Zahrah binti Saidi Messrs Ram Reza & Muhammad For the 1st, 3rd, 4th, 6th-8th : Terence Chan Defendants Tobias Lim Koon Li Messrs Lim Kian Leong & Co For the 5th Defendant : HY Chong Sandy Wee Chiat Khee Messrs Azman Davidson & Co S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 CASES CITED Nik Hamdan bin Daud & Ors v Samling Energy Sdn Bhd & Ors [2021] MLJU 769; [2021] 1 LNS 667 Lee Kuan Yew v Chin Vui Khen & Anor [1991] 3 MLJ 494 Cheong Chee Kwong v C S Metal Industries (M) Sdn Bhd [1998] MLJU 261 Chan Luen v Chan Kwong Chi & Ors [2020] HKCU 1296 Dato’ Seri Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam [2002] 2 MLJ 278; [2002] 2 CLJ 642 Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 Dato’ Ting Check Sii v Galaxy Grip Sdn Bhd & Ors [2011] 1 MLJ 646 Reiss v Woolf [1952] 2 All ER 112. Re Jokai Tea Holdings [1993] 1 All ER 630; [1992] 1 WLR 1196 Caribbean General Insurance Ltd. v Frizzell Insurance Brokers Ltd. [1994] 2 United Malayan Banking Corp Bhd v Palm and Vegetable Oils (M) Sdn Bhd & Ors [1994] 3 MLJ 73 Sivakumar A/L Varatharaju Naidu v Ganesan A/L Retmanan [2010] 7 MLJ 355 Karun Klasik Sdn Bhd v Tenanga Nasional Berhad [2017] MLJU 2320 Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749 STATUTE/LEGISLATION REFERRED Order 18 r 19(1)(a), (b) and/or (d) of the Rules of Court 2012 Section 188(2) of the Capital Markets and Services Act 2007 Section 213, s. 218 of the Companies Act 2016 S/N J6NpZMXgUmA7x7vVtduiA **Note : Serial number will be used to verify the originality of this document via eFILING portal