TINDERMAN HOLDING LIMITED ACE INVESTMENT BANK LIMITED

WA-24NCC-126-03/2025 Kand. 23 24/12/2025 10:28:22 IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24NCC-126-03/2025 BETWEEN TINDERMAN HOLDING LIMITED …PLAINTIFF (Company No.: LL18022) AND ACE INVESTMENT BANK LIMITED …DEFENDANT (Company No.: LL13216) 1 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal Judgment [claim for return of monies deposited with defendant] Introduction 1. This is an OS whereby the plaintiff had closed its custodian account with the defendant, an investment bank and asked for the return of its monies deposited with the defendant. The defendant had refused to return the monies. 2. The events that led to the closure of the account and request for the return of the monies are as follows. The plaintiff had earlier asked the defendant to transfer a sum of RM 6,885,000.00 from its account to Messrs Chew Ngoi & Co to pay the balance purchase price to buy a property. (See Enclosure 2 paragraph 38 and PDF page No. 317 – 322 Exhibit Y of the plaintiff’s affidavit in support). 3. The defendant replied that they required 15 business days for the payment to be processed. (See Enclosure 2 paragraph 42 and PDF page No. 326 Exhibit AA of the plaintiff’s affidavit in support). 2 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 4. Then the defendant said they required another two (2) months to release the payment which the plaintiff disagreed to as it would be sued for non-payment under the SPA. (See Enclosure 2 paragraph 44 and PDF page No. 328 Exhibit AB of the plaintiff’s affidavit in support). 5. The plaintiff’s solicitors sent a letter of demand. At this stage, the defendant appointed solicitors Messrs Shahrizat Rashid & Lee and by a letter dated 18-04-2024 started to raise the following objections- i. The plaintiff had failed to provide a complete set of documents to the defendant; ii. Qiu Lizhen [“Qiu”], who is a foreigner does not appear to be the director of the plaintiff; and iii. The plaintiff did not provide any proof that the plaintiff had carried out the necessary due diligence regarding the instruction; to attempt to justify the refusal to process the payment to the vendor’s solicitors. [refer to Enclosure 2 paragraph 48 and PDF page No. 336 – 337 Exhibit AD of the plaintiff’s affidavit in support]. 3 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 6. Frustrated, the plaintiff issued an Instruction Form to the defendant to close the Custodian Account and further directed the defendant to transfer the sum of RM 7,258,557.47 to their solicitors. (refer to Enclosure 2 paragraph 52 and PDF page No. 347 – 353 Exhibit AH of the plaintiff’s affidavit in support). 7. The defendant refused to return the monies and so the plaintiff filed this OS. 8. On 05-11-2025, I allowed the OS at paragraphs [a] to [e] with costs of RM 15,000 subject to allocatur. 9. On 02-12-2025, the defendant has appealed to the Court of Appeal. These are my Grounds of Judgment. Background facts PARTIES 10. The plaintiff is a private limited company incorporated in Malaysia under the Labuan Companies Act 1990 on 01-07-2022, having a registered office unit at Unit No. 3A-16, Level 3A, Labuan Times Square, Jalan Merdeka, 87000 Federal Territory of Labuan, Malaysia. 4 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 11. The defendant is an investment bank and management firm licensed by the Labuan Financial Service Authority. 12. The plaintiff’s directors are Nevolution (L) Foundation (“Nevolution”) and Chai Kar Yi [“Chai”]. [refer to Enclosure 2 PDF page No. 19 – 21 Exhibit A and PDF page No. 27 – 33 Exhibit C of the plaintiff’s affidavit in support]. 13. The Founders, Council Members and Beneficiaries of Nevolution are Chai and Qiu. 14. Following a Circular Resolution dated 01-06-2023 Chai and Qiu are the authorised signatories for Nevolution whereby such authority was duly accepted and recognised by the defendant. (See Enclosure 2 PDF page No. 27 Exhibit C of the plaintiff’s affidavit in support) Plaintiff opened custodian account with the defendant 15. Sometime in 2023, the plaintiff was seeking for custodial and investment services to hold its securities, funds, monies and/or assets. The plaintiff was introduced to the defendant. 5 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 16. On 10-10-2023, a representative of the defendant, Muhammad Nasrullah, had requested certain documents from the plaintiff for them to proceed with the Know Your Customer process. [See Enclosure 2 PDF page No. 38 Exhibit D of the plaintiff’s affidavit in support]. 17. The defendant acknowledged that Chai and Qiu are the authorised signatories of the plaintiff through the plaintiff’s Director Circular Resolution dated 11-10-2023. (See Enclosure 2 PDF page No. 41 Exhibit E of the plaintiff’s affidavit in support). 18. The plaintiff through its authorised signatory, Qiu, signed two (2) agreements namely, the Master Custodian Agreement (“Custodian Agreement”) and the Client Trading Service Agreement for the purpose of opening a custodian account with the defendant. (See Enclosure 2 PDF page No. 41 – 165 Exhibit E of the plaintiff’s affidavit in support). 19. The defendant subsequently informed the plaintiff that their application to open a custodian account with the defendant was successful with the Account No. CUS-THL1 (“Custodian Account”) being assigned to the plaintiff. [See Enclosure 2 PDF page No. 167 Exhibit F of the plaintiff’s affidavit in support]. 6 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 20. The defendant also confirmed that they would act upon the instructions of the plaintiff and/or its authorised person i.e. Qiu via an instruction form on a timely basis. [See Enclosure 2 PDF page No. 167 Exhibit F of the plaintiff’s affidavit in support]. Plaintiff deposited monies with defendant 21. On 14-10-2023 Qiu deposited a sum of USD 34,100.00 into the Custodian Account by initiating a transfer of cryptocurrency USDT 34,100.00 to the defendant’s designated wallet (“the defendant’s ERC20 Wallet”). 22. On 24-10-2023, Qiu further deposited a sum of USD 1,680,900.00 into the Custodian Account by initiating a transfer of USDT 1,680,900 to the defendant’s ERC20 Wallet as per the Transaction Form dated 24-10-2023 (refer to Enclosure 2 PDF page No. 267 – 273 Exhibit O of the plaintiff’s affidavit in support). 23. On 26-10-2023, the defendant acknowledged and confirmed receipt of the monies and forwarded a Statement of Account dated 26-10-2023 to the plaintiff. (refer to Enclosure 2 PDF page No. 275 Exhibit P of the plaintiff’s affidavit in support). 7 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal Plaintiff purchased a property 24. On 12-10-2023 the plaintiff acquired a property located at No. 22A, Villa Mont Kiara, Jalan Kiara, Mont Kiara, 50480 Wilayah Persekutuan Kuala Lumpur [“Property”] at the purchase price of RM7,650,000.00 (“the Purchase Price”) from one Mr Wan Hafiz Hamzah (“the Vendor”). [See Agreement to Purchase form in Enclosure 2 PDF page No. 249 Exhibit I of the plaintiff’s affidavit in support). Plaintiff instructed defendant to transfer the earnest deposit 25. On 15-10-2023 plaintiff instructed the defendant to transfer a sum of RM 153,000.00 being the earnest deposit for purchase of the Property to Messrs Anad & Noraini’s Client’s Account. [See Enclosure 2 PDF page No. 248 Exhibit I of the plaintiff’s affidavit in support). Defendant transferred the earnest deposit 26. On 18-10-2023, the defendant informed the plaintiff that the sum of USD 32,553.20 (equivalent to RM 153,000.00) has been successfully transferred to Messrs Anad & Noraini’s Client’s 8 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal Account. (See Enclosure 2 PDF page No. 253 Exhibit K of the plaintiff’s affidavit in support). Plaintiff instructed defendant to transfer the balance deposit 27. On 30-10-2023, the plaintiff instructed the defendant to transfer a sum of RM 612,000.00 being the balance deposit for the purchase of the Property to Messrs Chew, Ngoi & Co vide an Instruction Form dated 30-10-2023. (See Enclosure 2 PDF page No. 286 Exhibit S of the plaintiff’s affidavit in support). Defendant transferred the balance deposit 28. On 31-10-2023, the defendant transferred the RM 612,000.00 to Messrs Chew, Ngoi & Co. [See Statement of account of plaintiff with defendant last line in Enclosure 2 PDF page No. 288 Exhibit T and PDF page No. 290 Exhibit U of the plaintiff’s affidavit in support). SPA signed 9 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 29. On 20-11-2023, the plaintiff signed the Sale and Purchase Agreement (“the SPA”) with the Vendor in respect of the Property. (See Enclosure 6 PDF page No. 40 – 92 Exhibit AS of the plaintiff’s affidavit in reply). Plaintiff instructed defendant to transfer Balance Purchase Price 30. On 29-03-2024 the plaintiff instructed the defendant to transfer the Balance Purchase Price of RM 6,885,000.00 to Messrs Chew Ngoi & Co. (See Enclosure 2 PDF page No. 317 Exhibit Y of the plaintiff’s affidavit in support). Defendant failed to transfer the Balance Purchase Price 31. The defendant failed to transfer the Balance Purchase Price. 32. On 01-04-2024 as the Payment Due Date was approaching, the plaintiff’s representative, Kelly, sent a reminder email to Keith Tan Eng Keat (“Keith”) the Executive Director cum Principal Officer of the defendant at the defendant’s Kuala Lumpur Office and its Chief Financial and Operating Officer, one Koh Wei Zheh, highlighting the Payment Due Date which would lead the imposition of late payment interest and urged the defendant for an 10 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal immediate release of the RM 6,885,000.00.[See Enclosure 2 PDF page No. 324 Exhibit Z of the plaintiff’s affidavit in support]. Defendant asked for time to release the RM 6,885,000 33. On 02-04-2024, the defendant’s Investor Relations Department finally replied that the instruction to transfer was well received on 29-03-2024 but they would require fifteen (15) business days to release the RM 6,885,000. [refer to Enclosure 2 PDF page No. 326 Exhibit AA of the plaintiff’s affidavit in support]. 34. On 05-04-2024, the defendant informed the plaintiff that they required another two (2) months to release the RM 6,885,000. The plaintiff objected as no bank should need two (2) months before a customer can withdraw funds and warned that the Vendor would sue for specific performance. (refer to Enclosure 2 PDF page No. 328 Exhibit AB of the plaintiff’s affidavit in support). RM 7,209,222.60 unilaterally transferred by the defendant 35. The plaintiff says RM 7,209,222.60 had been unilaterally transferred by the defendant into an investment account bearing 11 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal the Account No. INV-THL1, without the plaintiff’s knowledge, instruction, or consent. 36. The plaintiff says this in its affidavit in support at paragraphs 35 and 36 and referred as proof to a Statement of Account dated 14- 01-2024 under Account Summary (refer to Enclosure 2 PDF page No. 306 Exhibit W of the plaintiff’s affidavit in support). 37. The defendant admitted the transfer was done in its reply affidavit Enclosure 5 at paragraph 37 but said the plaintiff had knowledge without furnishing any proof the plaintiff had knowledge. The defendant also failed to give any proof the plaintiff had given instruction for the transfer or consented to the transfer. Plaintiff issued a letter of demand 38. On 15-04-2024, the plaintiff through its then solicitors, Messrs Cheang & Ariff (“Messrs C & A”) issued a letter of demand seeking, inter alia, as follows: - i. The defendant to immediately release the sum of RM 7,258,557.47 being the total balance in Custodian Account as per the Statement of Account dated 14-01-2024 together with any interest accrued therein; and 12 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal ii. The defendant to compensate the plaintiff for the LPI incurred from 05-04-2024 until the full compliance of the 3rd Instruction. (See Enclosure 2 PDF page No. 330 – 334 Exhibit AC of the plaintiff’s affidavit in support). 39. Messrs Shahrizat Rashid & Lee by a letter dated 18-04-2024 rejected the demand. [refer to Enclosure 2 paragraph 48 and PDF page No. 336 – 337 Exhibit AD of the plaintiff’s affidavit in support]. Plaintiff closed the Custodian Account and asked for return of monies 40. On 06-07-2024, the plaintiff issued an Instruction Form to the defendant to close the Custodian Account and further directed the defendant to transfer the sum of RM 7,258,557.47 to Messrs C & A (refer to Enclosure 2 PDF page No. 347 – 353 Exhibit AH of the plaintiff’s affidavit in support). Defendant refused to return the plaintiff’s monies 41. The defendant refused to return the plaintiff’s monies from 06-07- 2024 to date. 13 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 42. The plaintiff realised the defendant was in fact beating around the bush and therefore on 07-03-2025 filed the present OS against the defendant. Plaintiff’s contentions 43. The plaintiff contends the defendant has breached the Custodian Agreement by failing, refusing and/or neglecting to comply with the instructions to transfer the monies and further to return the monies. 44. The plaintiff also contends the defendant was in breach of trust and fiduciary duty as an investment bank by unilaterally transferring the RM 7,209,222.60 out without the plaintiff’s knowledge, instruction, or consent. 45. The plaintiff further contends the defendant’s refusal to return the custodial funds held in the Custodian Account to the plaintiff is an unjust enrichment. Defendant’s contentions 14 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 46. The defendant contends the Custodian Agreement does not provide a fixed time line for them to release the monies. The defendant is contending 15 business days or 2 months is not a breach. [Enclosure 12 page 16 of the defendant’s reply submissions paragraph 29]. 47. The defendant also contends there was a continuous failure on the part of the plaintiff to provide full and frank disclosure on the status and position of Qui with the plaintiff and the full set of documents on the SPA raises suspicions and concerns on the true intent of the funds. [Enclosure 12 page 19 of the defendant’s reply submissions paragraph 37.3]. Analysis of the court 48. I am of the view the defendant has breached the Custodian Agreement by failing, refusing and/or neglecting to comply with the instructions to transfer the monies and to return the monies. 49. Clause 5.2 of the Custodian Agreement clearly stated that the defendant shall act on the plaintiff’s and/or its authorised person’s instructions to perform its duties and obligations under the 15 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal Custodian Agreement. (Refer to Enclosure 2 PDF page No. 205 – 206 Exhibit F of the plaintiff’s affidavit in support). 50. Clause 5.3 of the Custodian Agreement stated that the defendant shall execute all transactions involving securities, funds, monies and/or any other items to property or assets held on behalf of the plaintiff in accordance with the plaintiff’s and/or its authorised person’s instructions. (refer to Enclosure 2 PDF page No. 206 Exhibit F of the plaintiff’s affidavit in support). 51. The defendant had acknowledged that Chai and Qiu are the authorised signatories of the plaintiff through the plaintiff’s Director Circular Resolution dated 11-10-2023. (refer to Enclosure 2 PDF page No. 41 Exhibit E of the plaintiff’s affidavit in support). 52. The defendant had previously executed the instructions to transfer the earnest deposit and the balance deposit within three (3) working days upon receipt of the Instruction Forms signed by the same authorised person, Qiu. 53. There was no objection raised by the defendant regarding the identity of the signatory i.e. Qiu or the completeness of the documentation i.e. the Offer Letter and SPA at that point of time. 16 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 54. The defendant asked for 15 business days for the payment to be processed. Then it asked for two (2) months. 55. The objections only arose when the defendant was directed to release the balance purchase price immediately to avoid default in the SPA. At that stage, it was clear the defendant had no funds to transfer. 56. The defendant is estopped from now taking a contrary position and imposing new terms. I need only cite the Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, FC. This case is the locus classicus [a Latin phrase meaning literally “classical place”] on the doctrine of estoppel in Malaysia. Gopal Sri Ram JCA [delivering judgment of the court] said at page 344 to 348 – 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. Edgar Joseph Jr J (as he then was) in an illuminating judgment in Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at p 244 applied the doctrine in a broad and liberal fashion to 17 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal prevent a defendant from relying upon the provisions of the Limitation Act 1952. The doctrine may be applied to enlarge or to reduce the rights or obligations of a party under a contract: Sarat Chunder Dey v Gopal Chunder Laha LR 19 IA 203; Amalgamated Investment and Property Co Ltd (In liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR 565. It has operated to prevent a litigant from denying the validity of an otherwise invalid trust (see, Commissioner for Religious Affairs, Trengganu & Ors v Tengku Mariam bte Tengku Sri Wa Raja & Anor [1970] 1 MLJ 222) or the validity of an option in a lease declared by statute to be invalid for want of registration (see, Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1981] 1 All ER 897; [1981] 2 WLR 576). It has been applied to prevent a litigant from asserting that there was no valid and binding contract between him and his opponent (see, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1995] 3 MLJ 331 at 345 Spiro v Lintern [1973] 3 All ER 319; [1973] 1 WLR 1002). 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 the contract has represented or encouraged the other to believe as the true legal effect or meaning: American Surety Co of New York v Calgary Milling Co Ltd (1919) 48 DLR 295; De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330 Taylor Fashions. 18 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal We would add that it is wrong to apply the maxim ‘estoppel may be used as a shield but not a sword’ as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it… We take this opportunity to declare that the detriment element does not form part of the doctrine of estoppel. In other words, it is not an essential ingredient requiring proof before the doctrine may be invoked. All that need be shown is that in the particular circumstances of a case, it would be unjust to permit the representor or encourager to insist upon his strict legal rights. In the resolution of this issue, a judicial arbiter would, when making his assessment of where the justice of the case lies, be entitled to have regard to the conduct of the litigant raising the estoppel. This may, but need not in all cases, include the determination of the question as to whether the particular litigant had altered his position, although such alteration need not be to his detriment. [Emphasis mine] 57. What had happened to the plaintiff’s monies in the Custodian Account? The defendant cannot explain what had happened to the plaintiff’s monies to the sum of RM 7,209,222.60 that had been unilaterally transferred by the defendant into an investment account bearing the Account No. INV-THL1, without the plaintiff’s knowledge, instruction, or consent. 19 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 58. Further, the defendant has a duty to refund the monies once the plaintiff issued an Instruction Form to the defendant to close the Custodian Account. 59. By unilaterally transferring the sum of RM 7,209,222.60 into an investment account without any signed mandate, instruction form, or express authority given by the plaintiff, this constitutes not only a breach of fiduciary duty but also actionable negligence. 60. I am satisfied this is a proper case to allow the OS. To allow the defendant to continue to hold the plaintiff’s custodial funds in the Custodian Account would be a breach of the Custodian Agreement. It would also be an unjust enrichment. [See Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, FC]. 61. In conclusion, this is simply a case of the plaintiff as a customer asking for its monies back. The defendant has no right to refuse. Decision 20 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal 62. I allow the OS paragraphs [a] to [e] with costs of RM 15,000 subject to allocatur. Dated: 23th December 2025 …………(signed)…………….. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Fong Yi On. Chun Hoo & Partners (Petaling Jaya) Counsel for defendant: Hilwa Nazifa binti Bustam and Ashwiriya A/P Aravinthen (Pupil in chamber). 21 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal Shahrizat Rashid & Lee (Kuala Lumpur) CASES REFERRED TO: 1. Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202. 2. Amalgamated Investment and Property Co Ltd (In liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR 565. 3. American Surety Co of New York v Calgary Milling Co Ltd (1919) 48 DLR 295. 4. Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, FC. 5. Commissioner for Religious Affairs, Trengganu & Ors v Tengku Mariam bte Tengku Sri Wa Raja & Anor [1970] 1 MLJ 222. 6. De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330. 7. Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, FC. 8. Sarat Chunder Dey v Gopal Chunder Laha LR 19 IA 203. 9. Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1981] 1 All ER 897; [1981] 2 WLR 576. 10. Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1995] 3 MLJ 331 at 345 Spiro v Lintern [1973] 3 All ER 319; [1973] 1 WLR 1002. 22 S/N Wwl8FyneIUqPJ8wDQDpb3A **Note : Serial number will be used to verify the originality of this document via eFILING portal