Yang Amat Mulia Tengku Syarif Bendahara Perlis Dato' Seri Diraja Syed Badarudin Jamalullail Ibni Almarhum Tuanku Syed Putra Jamalullail 1. ) Zaqrul & Associates Sdn. Bhd. 2. ) Mohd Zaqrul Razmal bin Mohd Podzi 3. ) Mohd Eddy Hamzani bin Moh

WA-22NCC-433-08/2022 Kand. 76 03/11/2023 11:43:17 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) SAMAN PEMULA NO.: WA-24NCC-551-12/2021 ANTARA YANG AMAT MULIA TENGKU SYARIF BENDAHARA PERLIS DATO’ SERI DIRAJA SYED BADARUDIN JAMALULLAIL IBNI ALMARHUM TUANKU SYED PUTRA JAMALULLAIL (NO. K/P: 450101-09-5079) … PLAINTIF DAN 1. ZAQRUL & ASSOCIATES SDN BHD (NO. SYARIKAT: 201001000146 (884712-V) 2. MOHD ZAQRUL RAZMAL BIN MOHD PODZI (NO. K/P: 771208-04-5423) 3. MOHD EDDY HAMZANI BIN MOHD PODZI (NO. K/P: 820618-03-5947) … DEFENDAN - DEFENDAN J U D GM E N T (Enclosure 3) [1] This was an application by the Plaintiff for an interlocutory Mareva injunction in Enclosure 3 (“this Application”). [2] The 2nd Defendant had been declared bankrupt and as such the Plaintiff only proceeded with this Application against the 1st and 3rd Defendants. S/N 1xyHV353eEyd9um4z35QcQ **Note : Serial number will be used to verify the originality of this document via eFILING portal A] THE PLAINTIFF’S CASE [3] The Plaintiff’s case against the Defendants is based on the following causes of action: i) Breach of contract against the 1st Defendant; ii) Misrepresentation and fraud against all the Defendants; iii) Conspiracy to injure by fraudulent misrepresentation against all the Defendants; and iv) Creation of a constructive trust in respect of all the Defendants and for the relief of tracing. [4] The 2nd Defendant was a director of the 1st Defendant from 6.9.2010. The 3rd Defendants was a director of the 1st Defendant from 1.9.2016 until 21.09.2020. The 2nd Defendant is the majority shareholder of the 1st Defendant holding 99,999 shares in the 1st Defendant out of 100,000 shares. The 2nd and 3rd Defendants are brothers. [5] The 1st Defendant, through the 2nd and 3rd Defendants, represented to the Plaintiff as follows: i) That the 1st Defendant, through its agents, employees and/or contractors including specifically the 2nd and 3rd Defendant, would set up a facility known as Hospital Pakar Wanita & Kanak-kanak Kasih Putrajaya at Putrajaya, Wilayah Persekutuan; ii) Through Form 2 dated 7.3.2017 issued by the Director General of the Ministry of Health Malaysia (“Ministry of Health”) entitled “Kelulusan untuk Menubuhkan atau Menyenggarakan Kemudahan atau Perkhidmatan Jagaan Kesihatan Swasta”, that the 1st Defendant was given a valid approval by the Ministry of Health (“the Approval”) and the Approval would be used by the 1st Defendant to set up the hospital (which would be known as “Hospital Pakar Wanita & Kanak-kanak Kasih Putrajaya”) (“the Hospital”); S/N 1xyHV353eEyd9um4z35QcQ Page 2 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal iii) That the 1st Defendant only needs RM3,750,000.00 for it to execute the setting up/incorporation and the operation of the Hospital and that after the 1st Defendant receives the RM3,750,000.00 the 1st Defendant, including the 2nd and 3rd Defendants, would set up/incorporate and/or operate the Hospital on or before 22.2.2022. (“Representations”) [6] In support of the Representations the 2nd Defendant had given to the Plaintiff the document entitled “Kelulusan untuk Menubuhkan atau Menyenggarakan Kemudahan atau Perkhidmatan Jagaan Kesihatan Swasta” dated 7.3.2017 with the Serial No. 001703. [7] Relying on the Representations the Plaintiff paid a total of RM3,750,000.00 to the 1st Defendant and thereafter entered into a “Investment Agreement” dated 1.3.2019 with the 1st Defendant (“Agreement”). Preamble A of the Agreement states as follows: “Prior to the execution of this Agreement a total sum of RM3,750,000/- (Investment Amount) was paid by the Investor to the Hospital Operator for the purpose of setting up a new specialist hospital for women and children at Putrajaya with the breakdown and conditions as follows: (i) RM1,750,000/- is designated as a soft loan without any security or interest but subject to a repayment as follows: RM100,000/- every 3 months commencing January 2019 until full repayment (ii) RM2,000,000/- designated for investment for a 20% equity to be given to the Investor in the Hospital (as stipulated in Recital B)” [8] The Plaintiff later discovered that the Representations were not true in that: i) Despite that the 1st Defendant had received the RM3,750,000.00, the 1st Defendant, through its agents, employees and/or contractor including specifically 2nd Defendant and 3rd Defendant, did not set up the Hospital in Putrajaya, Wilayah Persekutuan on or before 22.02.2020 or at all. S/N 1xyHV353eEyd9um4z35QcQ Page 3 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal ii) The 1st Defendant, through its agents, employees and/or contractor including specifically the 2nd and 3rd Defendants, allowed the Approval to expire and that it is no longer valid for the Hospital to be set up by the 1st Defendant. iii) Through a Facebook page entitled “Hospital Pakar Wanita & Kanak-kanak KASIH, Putrajaya”, it was advertised that “Hospital Kanak-kanak dan Wanita Kasih” would purportedly soon be set up but by “Kasih Holdings” (instead of the 1st Defendant). iv) The Facebook page is owned and/or administered by the 2nd and 3rd Defendants as: a) It contains a video posted by the 2nd Defendant on 5.5.2020; and b) The company Kasih Holdings Sdn. Bhd. (Company No.: 1238784X), which was incorporated on 14.7.2017 was owned by the 3rd Defendant who is also its director. B] THE DEFENDANTS’ DEFENCE [9] The Defendants Defence (also contained in their Affidavit In Reply to this Application (Enclosure 11)) can be summarised as follows: i) The Plaintiff had handed the 1st Defendant RM1,750,000.00 in 2017 without any written agreement. ii) The Plaintiff then signed the Agreement on 1.3.2019 and increased his investment by RM2,000,000.00. iii) The fact that the Plaintiff increased his investment by another RM2,000,000.00 (totalling RM3,750,000.00) shows that the Plaintiff is aware that there is no misrepresentation and fraud and that the documents regarding the investment and Hospital are true. iv) The Plaintiff’s action is premature as there is no breach of the Agreement by the 1st Defendant. Under Clause 5 of the Agreement, the 1st Defendant’s obligation to pay only arises S/N 1xyHV353eEyd9um4z35QcQ Page 4 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal when the “Hospital is formally operational” and the Hospital is not yet formally operational. v) The Plaintiff entered into the Agreement willingly and without any force by the Defendants. vi) The Defendants deny all the Plaintiff’s allegations of fraud, misrepresentation or breach of contract. C] PRINCIPLES APPLICABLE IN A MAREVA INJUNCTION APPLICATION [10] The principles and law governing a Mareva injunction application is trite. For the grant of a Mareva injunction the Plaintiff has to satisfy 3 main criteria as laid out in the Supreme Court case of Aspatra Sdn Bhd & 21 Others v. Bank Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97 (see also Creative Furnishing Sdn Bhd v. Wong Koi [1989] 2 MLJ 153; Leisure Farm Corporation Sdn Bhd v. Kabushiki Kaisha Ngu & Ors [2013] 10 CLJ 401; SRC International Sdn Bhd & Anor v. Dato Sri Mohd Najib bin Hj Abd Razak [2022] 5 CLJ 949) and they are as follows: i) The applicant (plaintiff) must have a strong arguable case; ii) The defendant has assets within the jurisdiction of the Court; iii) There is a real risk of the assets being dissipated or removed before the judgment or the full and final disposal of this action. [11] In this regard the Court of Appeal in Menk Sdn Bhd v. Joerg Hugo Schmidt [2009] 4 CLJ 795 held as follows: “[19] In order to succeed in satisfying the above requirements of a good arguable case, much depends on the circumstances of the case, and invariably will depend on the available evidence, normally gleaned from the affidavits. Whether there is any asset within the jurisdiction likewise will depend very much on factual evidence, though more often than not, defendants are more co-operative on this matter. The issue of risk of whether the assets will be removed from the Malaysian jurisdiction before judgment is satisfied, is more difficult to prove, and issues of probity may arise. It may S/N 1xyHV353eEyd9um4z35QcQ Page 5 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal touch on the conduct of the defendant, the clandestine manner the assets are being removed and the like. …..” (own emphasis added) D] A GOOD ARGUABLE CASE [12] The definition and application of what constitutes “a good arguable case” were decided in the following cases: i) S&F International Limited v. Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 where the Supreme Court held: “Mustill J held in Ninemia Maritime Corporation v. Trave Schiffahrtsgesellschaft m.b.H. UND CO. K.G. [1984] 1 All ER 398 that: (1) Before a Mareva injunction will be granted, a plaintiff must show first that he has a good arguable case, which is more than being barely capable of serious argument, but not necessarily one that the Judge believes has got more than a fifty per cent chance of success;” (own emphasis added) ii) Biasamas Sdn Bhd & Ors v. Kan Yan Heng & Anor [1998] 4 CLJ 754 where the Court of Appeal held: "What is a good arguable case is difficult to define. The respondents need not show that they have a case so strong as to warrant summary judgment nor even a strong prima facie case. It would generally be sufficient if the respondents can show on the evidence available, there is a fair chance that they will obtain judgment against the appellants (see Ninemia Maritime Corporation v. Trave Schiffahrtsgesellschaft mbH & Co. KG:; The Nieder Sachsen [1984] 1 All ER 398, on appeal to CA [1984] 1 All ER 413: [1983] 1 WLR 1412)". (own emphasis added) [13] Therefore, to establish a good arguable case, it is sufficient for the Plaintiff to show that, based on the evidence available, there is a fair chance that it will obtain judgment against the Defendants. The Plaintiff is not required to show that it has a case that is so strong S/N 1xyHV353eEyd9um4z35QcQ Page 6 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal to warrant summary judgment nor even a strong prima facie case (Biasamas (supra)). [14] In the present case, having considered the submissions of counsel for the Plaintiff and that of the 1st and 3rd Defendants and after examining the affidavit evidence, I am of the considered view that the Plaintiff has met the threshold of a good arguable case based on the following causes of action against the 1st and 3rd Defendants: i) Breach of contract against the 1st Defendant; ii) Misrepresentation and fraud against all the Defendants; iii) Conspiracy to injure by fraudulent misrepresentation against all he Defendants; and iv) Creation of a constructive trust in respect of all the Defendant and for the relief of tracing. [15] In arriving at the decision that the Plaintiff has a good arguable case, I have taken into consideration, inter alia, that: i) The Defendants do not dispute that the Plaintiff has paid a total RM3,750,000.00 to the 1st Defendant; ii) The Defendants do not dispute and also rely on the Agreement which contains, inter alia, the payment terms in Preamble A of the Agreement (reproduced in paragraph 7 above); iii) No monies have been repaid to the Plaintiff by the 1st Defendant to-date; iv) That there was no specific and clear explanation provided by the Defendants regarding: a) the current status of the construction or operation of the Hospital; and b) the reason as to why the Hospital was not constructed or set up by 22.2.2020. S/N 1xyHV353eEyd9um4z35QcQ Page 7 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal v) The averments made by the Defendants or documents which the Defendants have exhibited to show that: a) A joint venture agreement was entered between the owner of the 1st Defendant, Kasih Holdings Sdn Bhd, and two companies known as Stella Healthcare Holdings Sdn Bhd dan Stella Kasih Healthcare Sdn. Bhd. (“the Stella Companies Joint Venture Agreement”); b) Based on the Stella Companies Joint Venture Agreement, the Ministry of Health amended the Approval which approval was now given to Stella Healthcare Holdings Sdn Bhd to construct/maintain the Hospital, valid from 18.3.2021 to 22.2.2022. c) The Approval involving the 1st Defendant was amended. vi) The Plaintiff’s averment that he had no knowledge of the Stella Companies Joint Venture Agreement and matters that transpired between the Stella Companies and the 1st Defendant, and that there were no documents to show that the Plaintiff was notified of these matters by the 1st Defendant. vii) Clauses 1 and 3 of the Agreement which states as follows: “2. APPROVAL All and any government approval and from time to time (including the cost thereof) for the setting and running of the Hospital shall be the sole responsibility of the Hospital Operator and which copies shall be extended to the Investor within seven (7) working days from the receipt thereof by the same. 3. DELIVERY OF DOCUMENTS Upon execution of this Agreement, the Hospital Operator shall deliver the following documents to the Investor’s Solicitors: (a) a certified true copy of the Hospital Operator’s Form 24, Form 44, Form 49, the Memorandum & Articles of Association and the resolution authorising the Hospital Operator to enter into this Agreement upon the terms and conditions herein contained; S/N 1xyHV353eEyd9um4z35QcQ Page 8 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) other relevant documents incumbent upon the Hospital Operator to furnish to the relevant government authority which are necessary for the completion of this Agreement.” [16] Thus, the main issues in this action involve, inter alia, the interpretation of the Agreement and the Defendants’ conduct in respect of the Agreement, the status of the construction and operation of the Hospital and how the RM3,750,000.00 was applied by the 1st Defendant and/or 2nd and 3rd Defendants. E] ASSETS WITHIN JURISDICTION [17] The 1st Defendant is a company incorporated under the laws of Malaysia with its registered and business address in Malaysia. It was granted the original Approval by the Ministry of Health to construct/manage the Hospital. Meanwhile the 3rd Defendants is a Malaysian citizen residing in Malaysia. [18] Based on the search reports issued by the Companies Commission of Malaysia on the 1st Defendant and Kasih Holdings Sdn Bhd, it is evident that: i) the 1st Defendant has assets in Malaysia; ii) the 3rd Defendant is the sole shareholder of Kasih Holdings Sdn Bhd and owns 2,000,000 shares in the said company. [19] In any event, there is no specific denial by the 1st and 3rd Defendants that they do not have assets within the jurisdiction of this Court. [20] Hence, I concluded that the 1st and 3rd Defendants have assets within the Court’s jurisdiction. F] RISK OF THE ASSETS BEING DISSIPATED [21] The lack of probity and honesty is a consideration in assessing the risk of dissipation in a Mareva injunction application. The Court of S/N 1xyHV353eEyd9um4z35QcQ Page 9 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal Appeal in Ang Chee Huat v. Engelbach Thomas Joseph [1995] 2 MLJ 83 held as follows: “Having considered the evidence, I am of the view that the conduct of the appellant in this matter is lacking in probity and honesty. In the circumstances, I conclude that there is a real risk that the assets of the appellant will dissipate should the respondent succeed at the trial. I feel that I am justified in arriving at this conclusion in the light of the decisions in the following two cases: in Petowa Jaya Sdn Bhd v Binaan Nasional Sdn Bhd [1988] 2 MLJ 261, Peh Swee Chin J (as he then was) said at p 264: The second condition laid down by Mustill J [in Ninemia Maritime Corp v Trave SGmbH & Co KG [1984] 1 All ER 398], duly approved by the Federal Court [in S & F International Ltd v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 ], was also satisfied, ie there was solid evidence that the probity of the defendant could not be relied on. The undisputed detention and use of the plaintiff's equipment, without the consent of plaintiff, and above all, the undisputed detention of 98% of progress payments No 22 and 23, without paying the same to the plaintiff, would indicate that the probity of the defendant could not be relied on with regard to the agreed retention sum with which the Mareva injunction was concerned; in other words, the defendant would, far more probably than not, dissipate the agreed retention sum in question without paying it to the plaintiff, or dealing with it not for the purpose that was intended. The risk of dissipation was not just a mere possibility, but almost a certainty. In Amixco Asia Pte Ltd v Bank Negara Indonesia 1946 [1992] 1 SLR 703, the Singapore Court of Appeal decided that there was overwhelming objective evidence of prima facie dishonest conduct on the part of Amixco/Kosen/Quek, and in the full circumstances of the case, a real risk of Amixco dissipating their assets to avoid satisfying BNI's judgment.” (own emphasis added) [22] The Court is entitled to draw inferences from the surrounding circumstances. In the High Court case of Robert Doran & Ors v. Kuan Pek Seng & Ors [2010] 6 CLJ 105 it was held as follows: “[11] As in most cases, the most difficult area relates to the examination of the available evidence to ascertain whether there is a risk that the assets would be dissipated so as to justify the granting of the Mareva injunction. The difficulty arises because invariably a dishonest defendant will cover his/her S/N 1xyHV353eEyd9um4z35QcQ Page 10 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal tracks, making it difficult for the plaintiff to produce the necessary relevant evidence. It is for this reason that the courts have over a period of time pronounced that when determining the risk of dissipation, the court is entitled to draw inferences from the defendant's previous action which show that his probity is not to be relied upon or that the corporate structure of the defendant is not to be relied upon. Of course, in considering the probity of the defendant or the lack of it, the court should also examine closely the evidence raised by way of rebuttal by the defendant.” (own emphasis added) [23] In allowing this Application I had taken into account the 1st and 3rd Defendants lack of probity, inter alia, as follows: i) There is no record before the Court of any financial returns submitted by the 1st Defendant after 3.6.2014. In EHQ Projects Sdn. Bhd. & Ors. v. Equipro Sdn. Bhd. & Ors [2008] 7 CLJ 343 the High Court had considered the non- filling of financial or profit and loss statements in the context of the risk of dissipation, and held, inter alia, as follows: “[28] The purpose of their application at this stage is only to arrest the money which MIDF had released to the first defendant and which the second and third defendants (who were signatories of the first defendants bank account), had taken out. Given that the RM 1.5m were so hurriedly and surreptitiously withdrawn from the bank account of the first defendant by the second and third defendants and given that the search conducted by the plaintiffs at the Registry of Companies had disclosed that the first defendant had not filed any financial nor any profit and loss statements since it was incorporated on 2 September 2005, the risk of dissipation is therefore real and not improbable.” (own emphasis added) ii) The 2nd Defendant, who held about 99% shares in the 1st Defendant, was adjudged bankrupt on 13.11.2019 about 8 months after the Agreement was entered but this was not disclosed to the Plaintiff. iii) The 2nd and 3rd Defendants are brothers and the 3rd Defendant is the sole director and shareholder of Kasih Holdings Sdn Bhd, the company which entered the Stella Companies Joint S/N 1xyHV353eEyd9um4z35QcQ Page 11 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal Venture Agreement. This then led to the Approval for the construction/management of the Hospital to be given by the Ministry of Heath to Stella Healthcare Holdings Sdn Bhd. iv) The licence holder of the Approval was originally the 1st Defendant. However, it was then changed to Stella Kasih Healthcare Sdn Bhd. The Plaintiff was not informed of this change or the Stella Companies Joint Venture Agreement. v) Under the Agreement the 1st Defendant was responsible for the construction/maintenance of the Hospital and the change to Stella Kasih Healthcare Sdn Bhd ought to have been disclosed to the Plaintiff. This is because it has the effect of removing the 1st Defendant’s interest/right in the Hospital. Clause 4 of the Agreement provides for the right for the Plaintiff or his nominee to a permanent seat on the Board of Governance for the day to day running of the Hospital. The change of the Approval to Stella Kasih Healthcare Sdn Bhd could deprive the Plaintiff of this right. [24] Therefore, there is a real risk that if the Mareva injunction sought in this Application is not granted the 1st and 3rd Defendants would likely dissipate their assets before this action is decided. G] CONCLUSION [25] For the reasons stated above, I allowed this Application against the 1st and 3rd Defendant, prayers I, IV and V with some changes and prayers VI and VII as prayer for. Dated this 30th day of October, 2023 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) S/N 1xyHV353eEyd9um4z35QcQ Page 12 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal COUNSEL FOR THE PLAINTIFF Nizam Bashir Messrs Nizam Bashir & Associates C3-2-5, No. 1, Jalan Dutamas 1 Solaris Dutamas 50450 Kuala Lumpur. Tel: 03-6413 5545 Email: info@nizambashir.com COUNSEL FOR THE DEFENDANTS Muhamad Ilyasa Iqbal Abu Bakar Messrs Shahrul Hamidi & Haziq Suite 36A, Level 36 (PO Box No. 79) Menara Dato’ Onn (PWTC) Jalan Tun Ismail 50480 Kuala Lumpur. Tel: 03-4050 3330 Email: general@shahrulhamidi.com CASES CITED 1. Ang Chee Huat v. Engelbach Thomas Joseph [1995] 2 MLJ 83 2. Aspatra Sdn Bhd & 21 Others v. Bank Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97 3. Biasamas Sdn Bhd & Ors v. Kan Yan Heng & Anor [1998] 4 CLJ 754 4. Creative Furnishing Sdn Bhd v. Wong Koi [1989] 2 MLJ 153 5. EHQ Projects Sdn. Bhd. & Ors. v. Equipro Sdn. Bhd. & Ors [2008] 7 CLJ 343 S/N 1xyHV353eEyd9um4z35QcQ Page 13 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal 6. Leisure Farm Corporation Sdn Bhd v. Kabushiki Kaisha Ngu & Ors [2013] 10 CLJ 401 7. Menk Sdn Bhd v. Joerg Hugo Schmidt [2009] 4 CLJ 795 8. Robert Doran & Ors v. Kuan Pek Seng & Ors [2010] 6 CLJ 105 9. S&F International Limited v. Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 10. SRC International Sdn Bhd & Anor v. Dato Sri Mohd Najib bin Hj Abd Razak [2022] 5 CLJ 949 S/N 1xyHV353eEyd9um4z35QcQ Page 14 of 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal