Grand Tractor Parts SB V Grand Tractor & Auto Parts SB

Grand Tractor Parts Sdn Bhd
[2019] MLRHU 1367 v. Grand Tractor & Auto Parts Sdn Bhd & Ors pg 1
GRAND TRACTOR PARTS SDN BHD

v.
GRAND TRACTOR & AUTO PARTS SDN BHD & ORS
High Court Malaya, Johor Bahru

Evrol Mariette Peters JC
[Suit No: JA-22NCVC-22-02/2018]
24 November 2019
Case(s) referred to:

Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 1 MLRH
144; [1989] 2 MLJ 202; [1989] 1 CLJ (Rep) 219 (refd)
Bombay Cotton Manufacturing Company v. Motilal Shivlal ILR 1915 39 Bom
386 (refd)
Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 1 MLRA 209; [1997] 2
MLJ 62; [1997] 3 CLJ 17; [1997] 2 AMR 1813 (refd)
Cartledge v. E. Jopling & Sons Ltd [1963] 1 All ER 341 (refd)
Credit Corp (M) Bhd v. Fong Tak Sin [1991] 1 MLRA 293; [1991] 1 MLJ 409;
[1991] 1 CLJ (Rep) 69 (refd)
Datuk Tan Leng Teck v. Sarjana Sdn Bhd [1997] 2 MLRH 816; [1997] 4 MLJ 329;
[1997] 3 CLJ 421 (refd)
Excelerate Technology v. Cumberbatch and Red Foot [2015] EWHC 204 (refd)
Hemp v. Garland [1843] LR 4 QB 519 (refd)
Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 4 MLRA 89; [2017] 5 MLJ
398; [2017] 8 CLJ 491 (refd)
Kwang Boon Keong Peter v. PP [1998] 2 SLR 211 (refd)
Law Tanggie v. Untong Gantang & Anor [1993] 5 MLRH 624; [1993] 2 MLJ 530;
[1993] 2 AMR 1240 (refd)
Lindsay Petroleum Co v. Hurd [1874] LRPC 221 (refd)
M Ratnavale v. S Lourdenadin [1988] 1 MLRA 66; [1988] 2 MLJ 371; [1988] 1
CLJ (Rep) 168 (refd)
McAllister v. Campbell [2014] NIQB 24 (refd)
Mohamed Kasdi v. PP [1968] 1 MLRH 409; [1969] 1 MLJ 135 (refd)
Muhammad Solleh Saarani & Anor v. Norruhadi Omar & Ors [2010] 6 MLRH
91; [2010] 9 MLJ 603 (refd)
Mulpha International Berhad & Ors v. Mula Holdings Sdn Bhd & Ors& Another
Appeal [2018] 3 MLRA 41 (refd)
Muthusamy v. PP [1947] 1 MLRH 587; [1948] 1 MLJ 57 (refd)
Ong Ah Bee v. Hii Chung Siong, Robin [1992] 3 MLRH 428; [1993] 1 CLJ 504
(refd)
Pertab Chunder Ghouse v. Mohendra Purkait & Ors [1889] LR 161A 223 (refd)
PP v. Datuk Haji Harun Haji Idris [1977] 1 MLRH 438; [1977] 1 MLJ 180 (refd)
Sean Thornton v. Northern Ireland Housing Executive [2010] NIQB 4 (refd)
Seow Kim Koi v. Wei Yin Chen [1968] 1 MLRA 954; [1968] 2 MLJ 193 (refd)
Yong Nyee Fan & Son Sdn Bhd v. Kim Guan & Co Sdn Bhd [1978] 1 MLRA
381; [1979] 1 MLJ 182 (refd)
pg 2 v. Grand Tractor & Auto Parts Sdn Bhd & Ors [2019] MLRHU 1367
Legislation referred to:

Companies Act 1965, ss 133, 181A
Companies Act 2016, ss 224, 347
Evidence Act 1950, ss 43, 92, 101, 146, 155
Limitation Act 1953, ss 6, 32
Counsel:
For the plaintiff: Dato' Meyappan Pillai (together with Alvin Teo); M/s Mak Ng
Shao & Kee
For the defendants: HL Pang; M/s CC Aiyathurai & Co
[Dismissed the plaintiff company's claim with costs.]
JUDGMENT
Evrol Mariette Peters JC:
The Claim
[1] This is the Plaintiff Company's claim against the Defendants, inter alia, for
the following:
a) MYR1,100,000 from the Defendants, for the sale and transfer of all
the Plaintiff Company's assets and liabilities to the First Defendant
Company;
b) MYR143,873.66 from the First and Second Defendants for tax

refund due;
c) MYR590,084 from the Second and Third Defendants, being a loan

given to the Second Defendant.
[2] I dismissed the Plaintiff Company's claim for the following reasons:
The Background Facts
[3] The Plaintiff Company was incorporated on 21 August 1984. After its
incorporation, it started a retail business in Gua Musang, Kelantan selling
spare parts for tractor and heavy machinery, whilst under the charge of one Mr
Tay Ko Hwa ("Mr Tay"). The spare parts were mostly supplied by Triumphal
Associates Bhd, which was a company that Mr Chey Cheng Wah, the Third
Defendant was working in. In 1996, the Third Defendant resigned from
Triumphal Associates Bhd to join the Plaintiff Company to manage its
business in Gua Musang.
[4] Mr Toh Thim Leong ("SP1") is a director and shareholder of the Plaintiff
Company. As at 4 August 1995, SP1 held 55% of the shares with Tan Ah Ngin
@Tan Thin Ngin ("the Second Defendant") holding 25% and one Tay Ko
Hwa ("Mr Tay") holding 20%.
[5] On 30 June 2001, KS Heavy Equipment Sdn Bhd, a shelf company, was
purchased by SP1 to take over the assets of the Plaintiff Company, which
business in Gua Musang had subsequently closed in August 2001. KS Heavy
Equipment Sdn Bhd was then changed to Grand Tractor & Auto Parts Sdn
Bhd (GTAP) which is the First Defendant Company.
[6] On the 30 July 2002, SP1, and the Second and Third Defendants agreed to
transfer all the assets and liabilities of the Plaintiff Company to the First
Defendant Company for an alleged consideration sum of MYR1.1 million.
[7] The Plaintiff Company also claimed for the amount of MYR143,873.66 as
tax refund due to the Plaintiff Company but which the Second and Third
Defendants had transferred to the First Defendant Company; and a sum of
MYR590,084 being the amount due from the Second Defendant to the
Plaintiff Company.
The Plaintiff's Case
[8] The Plaintiff Company's claim is that the Defendants had failed to pay the
alleged consideration sum of MYR1.1 million, being outstanding and due in
respect of the sale and transfer of all the Plaintiff Company's assets and
liabilities to the First Defendant Company. At the material time, the Second
and Third Defendants were directors in the Plaintiff Company and also
shareholders and directors of the First Defendant Company.
[9] The Plaintiff Company also claimed for an amount of MYR143,873.66

which it averred was a tax refund due, but that such sum was transferred to the
First Defendant Company by the Second and Third Defendants, in breach of
their fiduciary duties.
[10] The Plaintiff Company claims that MYR590,084 is another amount due
from the Second Defendant to the Plaintiff Company, based on the Statement
of Accounts of the Plaintiff Company, signed by the Second and Third
Defendants.
[11] The Plaintiff Company's sole witness was Mr Toh Tim Leong ("SP1").
The Defendants' Case
[12] The Defendants contended that it did not owe any of the sums claimed.
With regard to the alleged consideration sum of MYR1.1 million, the
Defendants averred that the figure was a fictitious amount invented by SP1.
[13] With regard to the sum of MYR143,873.66, the Defendants claimed that
the sum had already been banked into the Plaintiff Company's account, and as
far as the third sum of MYR590,084 was concerned, the Defendants claimed
that the records of the Plaintiff Company was doctored to reflect a loan to the
Second Defendant in that amount.
[14] The Second and Third Defendants claimed that they had strictly and
obediently complied with the orders of SP1 whom they claim was the alter ego
of the Plaintiff Company, and who had full and complete control of it at all
material time.
[15] It was the Defendants' claim that SP1 had, therefore, orchestrated all the
payments from the Plaintiff Company to the First Defendant Company, as a
façade to the intertwining arrangements to transfer assets, liabilities and
payments from the Plaintiff Company to the First Defendant Company, both
companies that he actually controlled; and that upon such transfer, the assets
and liabilities, of the Plaintiff Company, which included whatever loans
owing, were also transferred by the First Company, leaving nothing for the
Plaintiff Company to claim.
[16] The Defendants further argued emphatically that the Plaintiff Company's
claim is barred by the provisions of the Limitation Act 1953; alternatively, that
there was inordinate delay on the part of the Plaintiff Company in
commencing its claim and, therefore, is now estopped from filing this claim
against the Defendants by virtue of the doctrine of laches and acquiescence.
[17] The following were the Defendants' witnesses:
(a) Chey Cheng Wah (SD1 who is also the Third Defendant)
(b) Tan Ah Ngin (SD2 who is also the Second Defendant)
[18] However, it was agreed that the cross-examination of SD1 will be adopted
for SD2, since the statements of both witnesses were identical.
Contentions And Findings
Whether The Plaintiff Company's Claim Is Statute Barred
[19] The main reason for dismissing the Plaintiff Company's claim is because it
is statute barred by virtue of s 6 of the Limitation Act 1953, which reads:
Section 6 - Limitation of actions of contract and tort and certain other

actions
(1) Save as hereinafter provided the following actions shall not be

brought after the expiration of six years from the date on which the
cause of action accrued, that is to say-
(a) actions founded on a contract or on tort;
(b) actions to enforce a recognisance;
(c) actions to enforce an award;

(d) actions to recover any sum recoverable by virtue of any

written law other than a penalty or forfeiture or of a sum by
way of penalty or forfeiture.
[Emphasis added.]
[20] The law of limitation is based on the time-honoured doctrines of 'interest

reipublicae ut sit finis litium', (it is in the interest of the state that there should be
an end to litigation process) and 'vigilantibus, non dormientibus jura Subveniunt
' (the law aids the vigilant and not those who slumber).
[21] The issue that needs to be addressed, therefore, is when the cause of
action of the Plaintiff Company arose.
[22] A cause of action arises at the time when the debt could first have been
recovered by action: Hemp v. Garland [1843] LR 4 QB 519. It accrues when (a)
there is in existence a person who can sue and another who can be sued (b) all
the facts have happened which are material to be proved to entitle the Plaintiff
to succeed: Credit Corp (M) Bhd v. Fong Tak Sin [1991] 1 MLRA 293; [1991] 1
MLJ 409; [1991] 1 CLJ (Rep) 69, SC.
[23] The Plaintiff Company alleged that it had sold all its assets and liabilities
to the First Defendant for the alleged consideration sum of MYR1.1 million
pursuant to a Members' Resolution of the Plaintiff Company, dated 30 July
2002, and exhibited at p 120 of Part B of Common Bundle of Documents
("CBD").
[24] Although several documents were referred to by Counsel for the

Defendants to indicate that the sums of MYR1.1 million, together with
MYR143,873.66 and MYR590,084 were owing to the Plaintiff Company as
early as 2002, the document in which a demand was made for these sums is a
letter dated 26 May 2006, from SP1's solicitors Messrs Krishnan Papoo &
Associates, exhibited at pp 226-227 of Part B of the CBD ("the letter of 26 May
2006"). The letter of 26 May 2006, which is crystal clear and pivotal to the
narrative, reads:
...
We write to say that the proxy for our client, Mr Toh Thim Leong had
voiced his dissent of the transacted MYR143,873.66 against the
explanation offered by Mr Sim, the Company auditors at the recent
AGM. Mr Sim is not an officer of the Company to address and
explain the situation. In any event, our client's view has not altered
and we have instructions from our client to require the Company to
demand from the person(s) hereinafter mentioned for the following:
1. That the Company forthwith do hereby demand from Mr

Tan Ah Ngin @ Tan Thing Ngin to return the sum of
MYR143,873.66 within fourteen (14) days from the date of
this letter failing which the Company lodge a [complaint] with

the Commercial Crime Division for the manner to be
investigated;
2. That the Company forthwith do hereby demand and require

Mr Tan Ah Ngin @ Mr Tan Thing Ngin and Chey Cheng
Wah to repay the sum of MYR590,084 (being the loan
advanced by the Company) without fourteen (14) days of this
letter failing which the Company should resolved to pursue
appropriate measures to enforce the same;
3. That the Company forthwith do hereby demand from

Grand Tractor & Auto Parts Sdn Bhd to settle the
consideration price or MYR1.1 million to the Company
within seven (7) days of this letter failing which the Company
shall thereafter proceed under s 218 Notice (Companies Act)
against GTAT to recover the same.
Our client hereby instructs us to put your client on Notice which we

hereby that in the event the company fails or neglects to take measures
to recover the monies owing by the aforesaid, our client shall institute
proceedings under the Companies Act to recover the same for the
benefit of the Company.
[Emphasis added]
[25] Based on this letter, it is my finding that the latest date the cause of action
could have arisen is 26 May 2006. Pursuant to s 6 of the Limitation Act 1953,
therefore, the claim is statute-barred with effect from 26 May 2012, which is
six years from 26 May 2006. Since the Plaintiff Company commenced its
claim on the 21 February 2018, this claim fails.
[26] It is trite law that where the defence of limitation is raised, the burden
shifts to the Plaintiff to prove that his cause of action occurred within the
statutory period. In Cartledge v. E. Jopling & Sons Ltd [1963] 1 All ER 341, it
was stated by Lord Pearce:
... when a defendant raises the statute of limitation the initial onus is
on the plaintiff to prove that his cause of action occurred within the
statutory period. When, however, a plaintiff has proven an accrual of
damage within the six years... the burden passes to the defendants to
show that the apparent accrual of a cause of action is misleading and
that in reality the cause of action accrued at an earlier date.
[27] See also Muhammad Solleh Saarani & Anor v. Norruhadi Omar & Ors
[2010] 6 MLRH 91; [2010] 9 MLJ 603 and Ong Ah Bee v. Hii Chung Siong,
Robin [1992] 3 MLRH 428; [1993] 1 CLJ 504.
[28] From the pleadings and submission, the only response from the Plaintiff
Company is that the delay in filing the claim was because SP1 became a
majority shareholder of the Plaintiff Company only in 2016, and that he was
not in possession of its documents and particulars to commence the suit. The
Plaintiff Company contended, therefore, that the cause of action, accrued only
in 2016.
[29] I find this argument to be erroneous as the cause of action arose upon the
breach and not upon the change of shareholders or board control.
[30] Furthermore, the letter also indicates that SP1 'shall institute proceedings
under the Companies Act to recover the same for the benefit of the Company.'
This means that SP1 must have had in mind s 181A of the Companies Act
1965 (which is the equivalent of s 347 of the Companies Act 2016). Section
181A reads:
181A - Proceedings on behalf of a company
(1) A complainant may, with the leave of the Court, bring, intervene
in or defend an action on behalf of the company.
(2) Proceedings brought under this section shall be brought in the

company's name.
(3) The right of any person to bring, intervene in, defend or

discontinue any proceedings on behalf of a company at common law
is not abrogated.
(4) For the purposes of this section and ss 181B and 181E,
"complainant" means—
(a) a member of a company, or a person who is entitled to be

registered as member of a company;
(b) a former member of a company if the application relates to

circumstances in which the member ceased to be a member;
(c) any director of a company; or
(d) the Registrar, in case of a declared company under Part IX.
[31] The Plaintiff Company's claim that SP1 was not in possession of the
Company documents and particulars is misleading, in view of the fact that the
sums demanded via letter dated 26 May 2006 namely MYR1.1 million,
MYR143,873.66 and MYR590,084, are exactly the same as the sums
demanded now by the Plaintiff Company from the Defendants. It is, therefore,
beyond doubt that SP1 must have had in his possession all the relevant
documents pertaining to the said sums Otherwise it would have been
impossible to stipulate the exact figures right down to the exact cent.
[32] Counsel for the Plaintiff Company failed to explain to the satisfaction of
the Court that the cause of action occurred within the statutory period.
[33] However, even if the Court looked beyond the statute of limitation, I find
that the Plaintiff Company's claim is defeated by the doctrine of laches
provided for in s 32 of the Limitation Act 1953, which expressly permits the
Court to apply the doctrine of laches to refuse the relief sought by the Plaintiff
Company (see M Ratnavale v. S Lourdenadin [1988] 1 MLRA 66; [1988] 2
MLJ 371; [1988] 1 CLJ (Rep) 168). Section 32 reads:
Section 32 - Acquiescence
Nothing is this Act shall affect any equitable jurisdiction to refuse

relief on the ground of acquiescence, laches or otherwise.
[34] Laches is established when two conditions are fulfilled. In the first place,
there must be unreasonable delay in the commencement or prosecution of
proceedings; in the second place, in all the circumstances the consequences of
delay must render the grant of relief unjust.
[35] The often cited principle on laches is found in the enlightening passage by
Lord Selborne in the landmark case of Lindsay Petroleum Co v. Hurd [1874]
LRPC 221:
But in every case if an argument against relief which otherwise would

be just is founded on mere delay, that delay of course not amounting
to a bar by any Statute of Limitations, the validity of that defence must
be tried upon principles substantially equitable. Two circumstances
always important in such cases are the length of the delay, and the
nature of the acts done during the interval, which might affect either
party and cause a balance of justice or injustice in taking the one
course or the other so far as relates to the remedy.
[36] Laches has been aptly described as 'inaction with one's eyes open' by
Edgar Joseph Jr J (as he then was) in Alfred Templeton & Ors v. Low Yat
Holdings Sdn Bhd & Anor [1989] 1 MLRH 144; [1989] 2 MLJ 202; [1989] 1
CLJ (Rep) 219:
Laches is an equitable defence implying lapse of time and delay in

prosecuting a claim. A court of equity refuses its aid to a stale demand
where the plaintiff has slept upon his rights and acquiesced for a great
length of time. He is then said to be barred by laches. In determining
whether there has been such a delay as to amount to laches the court
considers whether there has been acquiescence on the plaintiff's part
and any change of position that has occurred on the part of the
defendant. The doctrine of laches rests on the consideration that it is
unjust to give a plaintiff a remedy where he has by his conduct done
that which might fairly be regarded as equivalent to a waiver of it or
where by his conduct and neglect he has, though not waiving the
remedy, put the other party in a position in which it would not be
reasonable to place him if the remedy were afterwards to be asserted:
14 Halsbury's Laws of England (3rd Ed) paras 1181, 1182. Laches has
been succinctly described as 'inaction with one eye's open'.
[37] See also Yong Nyee Fan & Son Sdn Bhd v. Kim Guan & Co Sdn Bhd
[1978] 1 MLRA 381; [1979] 1 MLJ 182 which was adopted in Mulpha
International Berhad & Ors v. Mula Holdings Sdn Bhd & Ors& Another Appeal
[2018] 3 MLRA 41, CA.
[38] In Yong Nyee Fan & Son Sdn Bhd v. Kim Guan & Co Sdn Bhd [1978] 1
MLRA 381; [1979] 1 MLJ 182, the following observations were made by
Hashim Yeop A Sani J:
To set out the general principles first, it is an established rule of equity

that a plaintiff in equity is bound to prosecute his claim without undue
delay. A Court of equity would refuse its aid to stale demands, ie
where the plaintiff has slept upon his right and acquiesced for a great
length of time. For "laches" literally means negligent inactivity. He is
then said to be barred by his laches (Halsbury's 3rd Ed Vol 14, p 641).
In determining whether there has been such delay as to amount to
laches the main points to be considered are acquiescence on the part of
the plaintiff and secondly whether any change of position has occurred
on the defendant's part.
[39] It is, therefore, an established rule of equity that a plaintiff in equity is

bound to prosecute his claim without undue delay. A Court of equity would
refuse its aid to stale demands, that is, where the plaintiff has slept upon his
right and acquiesced for a great length of time. In the interest of justice, the
court should apply the maxim - vigilantibus non dormientibus, jura subveniunt
(the court of equity has always refused its aids to stale demands, when a party
has slept on his rights and acquiesced for a great lent of time) vigorously
against sleeping litigants.
[40] In my view, the latest date the cause of action could have accrued is 26
May 2006 by virtue of the demand made by SP1's solicitors, and since the
claim commenced on 21 February 2018 when the writ was filed, in my view,
the Plaintiff Company had slept on its rights for an unreasonable delay of
almost 12 years. By virtue of these laches, the Plaintiff Company's claim
should be dismissed.
Whether SP1 Was In Full Control Of The Plaintiff Company
[41] Regardless of the doctrine of limitation, I would have dismissed the

Plaintiff Company's claim based on the very fact that it had failed to prove it.
However, at the outset, it is important to establish the relationship between
SP1 and the Second and Third Defendants in order to understand the
dynamics of their relationship and the bearing it had on the companies that
they were involved in.
[42] The Defendants claimed that SP1 was the alter ego of the Plaintiff
Company and that he was the one who had purchased KS Heavy Equipment
Sdn Bhd to take over the Plaintiff Company. SP1 then promised the Second
and Third Defendants that there would not be any payment for all the assets
that would be transferred from the Plaintiff Company to the First Defendant.
[43] Counsel for the Defendants further submitted that it was SP1 who had
ordered both the Second and Third Defendants to be listed as the initial
shareholders, and that both the Second and Third Defendants had strictly
obeyed and complied with all the decisions and directions made and given by
SP1 pertaining to the Plaintiff Company.
[44] Counsel for the Plaintiff Company submitted that this averment was not
pleaded by the Defendants and, therefore, should not be considered by the
Court. In my view, this is incorrect since the Defendants, in para 10(f) of their
Defence dated 12 April 2018, did aver that the Second and Third Defendants
'had strictly and obediently complied with the orders of Mr Toh Thim Leong
who had full and complete control of the Plaintiff at all material time.'
[45] Although the Plaintiff is a company, the facts that cannot be discounted
are the history of the relationship between SP1 on one hand, and Second and
Third Defendants on the other; and that SP1 was in control of the Plaintiff
Company as well as the First Defendant Company, and to a large extent the
conduct of Second and Third Defendants.
[46] The Plaintiff Company was one of SP1's numerous corporate vehicles, in
which he was the majority shareholder, holding 55% shares, when it was
incorporated.
[47] Based on the undisputed facts and both oral and documentary evidence
adduced, it is my finding that the Plaintiff Company was in fact under the full
and complete control of SP1 as he is the actual owner of the Plaintiff
Company, and that he orchestrated the incidences that were relevant and
material to the facts of this case.
[48] Counsel for the Plaintiff Company also submitted that the Defendants are
estopped from alleging that SP1 was in control of the Plaintiff Company based
on the fact that the application to take out a Third Party Notice against SP1,
filed on 23 May 2018 ("the Application") was dismissed by the Court on 29
July 2018 ("the Decision").
[49] In my opinion, the Decision to dismiss the Application does not preclude
this Court from deciding the issue of whether SP1 was in control of the
Plaintiff Company. In my view, they are two separate issues; and secondly,
that Decision was made at an interlocutory stage, and did not delve into the
merits of the case before this Court.
Whether The Sum Of MYR1.1 Million Was Owing By The Defendants
[50] The Plaintiff Company claimed that it had agreed to transfer all its assets
and liabilities to the First Defendant for an alleged consideration sum of
MYR1.1 million pursuant to the Members' Resolution dated 30 July 2002,
duly signed by SP1, and exhibited at p 120 of Part B of the CBD.
[51] Counsel for the Plaintiff Company submitted that the word 'transfer'
means 'sold' and that the Plaintiff Company had sold all its assets and stock in
trade to the First Defendant for a consideration sum of MYR1.1 million.
[52] The Defendants claimed that the assets and liabilities were merely
transferred to the First Defendant on the promise by SP1 that there would not
be any payment whatsoever for the said transfer. According to the Defendants,
this promise goes all the way back to 2001 when KS Heavy Equipment Sdn
Bhd (which name was eventually changed to Grand Tractor & Auto Parts Sdn
Bhd, the First Defendant) was purchased to take over the assets of the Plaintiff
Company which business had closed. The closure of the business of the
Plaintiff Company is evidenced by Notes to the Financial Statements - 31 July
2002, exhibited at p 139 of Part B of the CBD.
[53] According to the Second Defendant, he had expressed an intention to

resign from the Plaintiff Company, but SP1 convinced him to continue and
promised that he would transfer the assets and liabilities of the Plaintiff
Company to the First Defendant for no payment at all. The Second Defendant
averred that SP1 had also promised to supply the First Defendant Company
with various equipment from Triumphal Associates Bhd A further instruction
by SP1 was for both the Second and Third Defendants to be listed as initial
shareholders of the First Defendant Company.
[54] The evidence of the Second and Third Defendants is supported by

independent evidence that the alleged sum of MYR1.1 million was fictitious
and based on the promise made by SP1 to the Second and Third Defendants.
For instance, if MYR1.1 million was in fact owing to the Plaintiff Company, it
appears baffling that this was never raised nor queried by SP1, despite having
perused, understood, approved and adopted the Reports and Financial
Statements of the Plaintiff Company for the years ending 31 July 202 and 31
July 2003 at the 13th and 14th Annual General Meetings that he chaired on 31
January 203 and 31 January 2004 respectively. The Reports and Financial
Statements of the Plaintiff Company for the years ending 31 July 202 and 31
July 2003 are exhibited at pp 122-139 and 151-169 respectively of Part B of the
CBD; whilst SP1's attendance at the 13th and 14th Annual General Meetings
on 31 January 203 and 31 January 2004 respectively, are evidenced by the
Minutes of such meetings, exhibited at pp 140-142 and 170-171 respectively of
Part B of the CBD.
[55] Secondly, SP1 had indicated his intention to wind up the Plaintiff
Company. This is evidenced by the Minutes of the 16th Annual General
Meeting exhibited at pp 213-214 of Part B of the CBD. If MYR1.1 million was
in fact owing to the Plaintiff Company, it would not make sense for SP1 to
intend to wind it up.
[56] The intention of SP1 to wind up the Plaintiff Company, therefore,

reinforces the assertion of both the Second and Third Defendants that the First
Defendant was not required to make any payment for the transfer of assets and
liabilities from the Plaintiff Company, as promised by SP1, and that the
consideration sum of MYR1.1 million is a fictitious sum invented by him.
[57] Based on that facts, and after perusing the oral as well as the documentary
evidence, it is my view that there was no debt whatsoever in the sum of
MYR1.1 million owing by the Defendants to the Plaintiff Company.
Whether tHe Sum Of MYR143,873.66 Was Owing By The Defendants
[58] The claim for the amount of MYR143,873.66 is groundless and

unfounded as SP1 had admitted during cross-examination that this sum was
banked into the account of the Plaintiff Company. Copies of the cheques are
exhibited at pp 147-149 of Part B of the CBD.
[59] SP1 had also agreed that the said sum was not banked into the private
account of either the Second or the Third Defendant.
[60] This is reflected in the Notes of Proceedings as follows:
DC: The amount which you claimed MYR143,876.66 which is from

the Defendant, being the tax refund. I put it to you the amount, return
from the tax, had been banked into the account of Grand Tractor Parts
Sdn Bhd, agreed?
SP1: Yes, agree
DC: And that actually is being reflected at pp 147, 148, and 149,
correct? 147 you see the amount was 143,873.66 had been banked into
the recipient account, Grand Tractor Parts Sdn Bhd, correct?
SP1: Yes.
DC: That money was not banked into any other accounts, correct?
The cheque.
SP1: Yes.
DC: It was not banked into Mr Chey's account or Mr Tan Ah Ngin's

account, correct?
SP1: Yes.
[61] It is, therefore, crystal clear that the Plaintiff Company has no basis for
claiming the amount of MYR143,876.66 from the Second and Third
Defendants.
Whether The Sum Of MYR590,084 Was Owing By The Defendants
[62] In relation to the Plaintiff Company's claim for MYR590,084, the

Defendants aver that the records were doctored to reflect a loan from the
Plaintiff Company to the Second Defendant.
[63] The Defendants claim is that the sum of MYR590,084 was a combination
of two amounts - one was recorded as a loan of MYR300,000 by the Second
Defendant to the Plaintiff Company. According to the Defendants, this sum
was in actual fact an amount that was transferred by SP1 in the name of the
Plaintiff Company to the First Defendant Company, since the First Defendant
Company had no funds after it was just purchased by SP1. The Defendants'
claim that the First Defendant Company's record was doctored to reflect that
the Plaintiff Company had authorised a loan of MYR300,000 to the Second
Defendant.
[64] With regard to the second sum of MYR295,976, the Defendants claimed
that the records were doctored to reflect that the Plaintiff had authorised a loan
in that sum to the Second Defendant, when that sum was in actual fact a
contra payment for the transfer of 24,000 shares, belonging to Mr Tay in the
Plaintiff Company, to the First Defendant. In return for the shares, SP1 had
ordered the transfer of a piece of land and house to Mr Tay. According to both
the Second and Third Defendants, the records of the Plaintiff Company were
manipulated to make it look as though it had authorised a loan to the Second
Defendant.
[65] It is pertinent to note at this juncture that it is an offence for a company to

give loans to a director, by virtue of s 224 of the Companies Act 2016 (found
in s 133 of the Companies Act 1965). Therefore, I agree with Counsel for the
Defendants that even if there was in actual fact loan to the Second Defendant,
such loan is illegal.
[66] Secondly, bearing in mind that SP1 was in fact the mastermind of all these
corporate dealings, it is my finding that his dominant position would, in all
probabilities, have enabled him to manipulate the Second and Third
Defendants to comply with his instructions and orders.
[67] It is my finding, therefore, that the Plaintiff Company's claim for the sum
of MYR590,084 also fails.
[68] With regard to all the claims of the Plaintiff Company, it is pertinent to
note that when the assets and liabilities of the Plaintiff Company were
transferred to the First Defendant Company, this would also mean that all
loans and debts due would have been transferred as well, which would have
left nothing in the Plaintiff Company. It, therefore, does not make sense for the
Plaintiff Company to now demand any of these sums
Whether The Plaintiff Company Had Proved Its Case
[69] The burden of proof on the Plaintiff Company to prove its claim is a legal
one on a balance of probabilities, as prescribed by s 101 of the Evidence Act
1950 ("Evidence Act") which reads:
Section 101 - Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must
prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
[70] This was explained in the case of Hong Yik Trading v. Liziz Plantation Sdn
Bhd [2017] 4 MLRA 89; [2017] 5 MLJ 398; [2017] 8 CLJ 491 by Arifin
Zakaria CJ at p 497, in the following words:
It is settled law that the burden of proof rests throughout the trial on
the party who asserts that the facts exist (s 101 of the Evidence Act
1950). Where a party on whom the burden of proof lies has discharged
that burden, then the evidential burden shifts to the other party.
However, if the party on whom the burden of proof lies fails to
discharge it, the other party need not call any evidence.
Whether The Parol Evidence Rule Applied
[71] Counsel for the Plaintiff Company had adduced volumes of documentary
evidence to prove its case, and relied on the parol evidence rule found in s 92
of the Evidence Act. The section reads:
Section 92 - Exclusion of evidence of oral agreement
When the terms of any such contract, grant or other disposition of

property, or any matter required by law to be reduced to the form of a
document, have been proved according to s 91, no evidence of any
oral agreement or statement shall be admitted as between the parties
to any such instrument or their representatives in interest for the
purpose of contradicting, varying, adding to, or subtracting from its
terms:
[Emphasis added]
[72] At this juncture, it is crucial to bear in mind that the parol evidence rule
does not apply to all documents. Reference on this point must be made to PP
v. Datuk Haji Harun Haji Idris [1977] 1 MLRH 438; [1977] 1 MLJ 180,
(affirmed subsequently by the Federal Court) where it was expounded by
Abdoolcader J (as he then was):
... in the context of the wording in s 92 of the Evidence Act, the clause
'any matter required by law to be reduced to the form of a document'
would appear to refer to bilateral instruments and dispositive
documents only, such as contracts, grants or other dispositions or
property which the law requires to be reduced to writing, and not to
every and all matters which the law requires to be reduced into a
document, as, for instance, the depositions of witnesses which, though

required by law to be reduced to the form of a document, would not
come within this section and oral evidence is therefore admissible to
contradict such depositions.
[Emphasis added]
[73] The issue arose again in Datuk Tan Leng Teck v. Sarjana Sdn Bhd [1997] 2
MLRH 816; [1997] 4 MLJ 329; [1997] 3 CLJ 421, where Augustine Paul J (as
he then was) provided a logical basis for confining the parol evidence rule to
bilateral documents, namely, the words 'as between parties to any such
instrument...' found in s 92 of the Evidence Act:
On the other hand s 92, having described the documents to which it

applies including the documents encapsulated by the phrase in
question, goes on to say, in its operative part, that '... no evidence of
any oral agreement or statement shall be admitted as between the
parties to any such instrument or their representatives in interest....'
[Emphasis added]. Thus the phrase, as it appears in s 92, is explicitly

qualified by the words emphasised. The words '... as between the
parties to any such instrument or their representatives in interest....'
clearly and crisply connote in crystalline terms that the documents
contemplated by s 92 are bilateral and dispositive in nature.
[Emphasis added]
[74] A scrutiny of s 92 and its Illustrations makes it apparent that the

documents referred to in the provision are bilateral only and thus, reinforces
the view that the rule excluding oral evidence is not extended to all
documents.
[75] Counsel for the Plaintiff Company submitted that the Second and Third
Defendants had signed company documents such as the Directors' Reports,
but had not convinced the Court that these documents were in fact bilateral
documents referring to 'contract, grants and other disposition' to justify
invoking s 92 of the Evidence Act. On this ground alone, the contention on the
parol evidence rule is flawed.
[76] However, even if I agreed with Counsel for the Plaintiff Company that s
92 applied to the documents in question, it is pertinent to note that there are
several exceptions to the parol evidence rule. The exception that applies to this
case is para (a). The following are the exceptions to s 92:
Section 92 - Exclusion of evidence of oral agreement
When the terms of any such contract, grant or other disposition of

property, or any matter required by law to be reduced to the form of a
document, have been proved according to s 91, no evidence of any
oral agreement or statement shall be admitted as between the parties to
any such instrument or their representatives in interest for the purpose

of contradicting, varying, adding to, or subtracting from its terms:
Provided that-
(a) any fact may be proved which would invalidate any

document or which would entitle any person to any decree or
order relating thereto, such as fraud, intimidation, illegality,
want of due execution, want of capacity in any contracting
party, the fact that it is wrongly dated, want or failure of
consideration, or mistake in fact or law;
[77] The Defendants claim that SP1 assured the First and Second Defendants
that the transfer would be effected without any payment due to the Plaintiff
Company. On this point, I am guided by the Privy Council in Pertab Chunder
Ghouse v. Mohendra Purkait & Ors [1889] LR 161A 223 where it was stated
that 'if a defendant is told that any stipulation in an agreement would not be
enforced, he could not be held to have assented to it,'
[78] I also find instructive the words of Choor Singh J on the application of
para (a) of s 92 of the Evidence Act, in the Federal Court case of Seow Kim
Koi v. Wei Yin Chen [1968] 1 MLRA 954; [1968] 2 MLJ 193:
Section [92] of the Evidence Ordinance does not preclude a party from
showing that the writing in question was not really the contract
between the parties but was only a fictitious or colourable device to
cloak something else. Oral evidence is admissible to show that what
purports to be an agreement was only a sham and not intended to be
acted upon.
[Emphasis added]
[79] In my view, therefore, the oral evidence adduced falls within the
exception to the parol evidence rule in para (a) of s 92 of the Evidence Act, as
it is crucial in determining if the agreement was only a sham and not intended
to be acted upon.
Credibility Of Witnesses
[80] Counsel for the Plaintiff Company submitted that the documentary
evidence was crystal clear of the Defendants' liability. I have perused the
documentary evidence with a fine-tooth comb and it is my finding that since
SP1 was the master-mind behind the companies in question, the documents
must be viewed with circumspection. The oral evidence, therefore, is to be
given equal, if not more, consideration.
[81] Since the Plaintiff Company had produced only one witness, its case
depended very much on that particular witness, namely SP1.
[82] It is trite law that, apart from applying the standard of proof required by
law, a trier of fact, in order to arrive at a decision according to law, must

judicially appreciate the evidence led before him upon the issue called for
resolution. A decision arrived in the absence of a judicial appreciation of
evidence is liable to appellate correction. Judicial appreciation is concerned
with the process of evaluating the evidence for the purpose of discovering
where the truth lies in a particular case. It includes, but is not limited to,
identifying the nature and quality of the evidence, assigning such weight to it
as the trier of fact deems appropriate, testing the credibility of oral evidence
against contemporaneous documents as well as the probabilities of the case
and assessing the demeanour of witnesses: per Gopal Sri Ram JCA (as he then
was) in Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 1 MLRA 209;
[1997] 2 MLJ 62; [1997] 3 CLJ 17; [1997] 2 AMR 1813.
[83] With regard to the credibility of witnesses, reference is made to s 146 of

the Evidence Act, which reads:
Section 146 - Questions lawful in cross-examination
When a witness may be cross-examined, he may, in addition to the

questions hereinbefore referred to, be asked any questions which
tend—
(a) to test his accuracy, veracity or credibility;
(b) to discover who he is and what is his position in life; or
(c) to shake his credit by injuring his character, although the

answer to such questions might tend directly or indirectly to
criminate him, or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture.
[84] Credibility concerns the opportunities for a power of observation of the

witness, his accuracy for recollection, and capacity to explain what he
remembers: Kwang Boon Keong Peter v. PP [1998] 2 SLR 211.
[85] I find instructive the words of Gillen J in Sean Thornton v. Northern

Ireland Housing Executive [2010] NIQB 4 which was adopted in McAllister v.
Campbell [2014] NIQB 24:
[12] Credibility of a witness embraces not only the concept of his

truthfulness ie whether the evidence of the witness is to be believed but
also the objective reliability of the witness ie his ability to observe or
remember facts and events about which the witness is giving evidence.
[13] In assessing credibility the court must pay attention to a number

of factors which, inter alia, include the following:
- The inherent probability or improbability of representations

of fact.
- The presence of independent evidence tending to corroborate

or undermine any given statement of fact.
- The presence of contemporaneous records.
- The demeanour of witnesses eg does he equivocate in cross

examination.
- The frailty of the population at large in accurately

recollecting and describing events in the distant past.
- Does the witness take refuge in wild speculation or

uncorroborated allegations of fabrication.
- Does the witness have a motive for misleading the court.
- Weigh up one witness against another.
[86] On the assessment and evaluation of SP1, I am guided by the words of Ali
J in Mohamed Kasdi v. Public Prosecutor [1968] 1 MLRH 409; [1969] 1 MLJ
135:
No hard and fast rule can be laid down for determining the credibility
or otherwise of a witness, but when a witness gives or makes two
statements which differ in material particulars there must necessarily
be ground for believing that he is not a truthful witness.
[87] It must be borne in mind that in the Privy Council case of Bombay Cotton
Manufacturing Company v. Motilal Shivlal ILR 1915 39 Bom 386, PC, it was
observed by Sir George Farwell, in addressing the credit of a witness upon
cross-examination, that 'it is most relevant in a case where everything depends
on the judge's belief or disbelief in the witness' story.'
[88] I found SP1 to be unconvincing and implausible. He not only

contradicted himself but was evasive and feigned ignorance to questions which
answers he felt was not favourable to him.
[89] He appeared robust when providing answers favourable to the Plaintiff

Company, but in my observation, appeared not to understand questions which
answers he felt were disadvantageous.
[90] On this point, reference is made to Law Tanggie v. Untong Gantang &
Anor [1993] 5 MLRH 624; [1993] 2 MLJ 530; [1993] 2 AMR 1240, where it
was stated by Richard Malanjum J (as he then was):
Overall I find the evidence of the first defendant unsatisfactory in

terms of credibility. I am aware of his advanced age. However, on
some material issues he appeared to be very certain to say what were
in his favour but only to retract what he had said when challenged
with evidence to the contrary or to retreat to the obvious, namely,

unable to recall.
[91] Although SP1 claimed in court that he was conversant in the English
Language, a Mandarin-speaking interpreter was engaged to assist. However, I
observed that despite having the benefit of an interpreter, on several occasions
when questions were put to him which answers appeared favourable, SP1 was
quick to retort in English, However, when the questions were followed with
answers that were disadvantageous to him, he claimed that he needed the
assistance of the interpreter, or asked for those questions to be repeated. In my
opinion, this was SP1's tactic to slow down the cross-examination to enable
him to collect himself and to buy time. This is an observation that is relevant
in assessing the credibility of a witness: Excelerate Technology v. Cumberbatch
and Red Foot [2015] EWHC 204.
[92] As a chairman of a listed company, it is safe to assume that SP1 is a

savvy, and discerning businessman as he had founded numerous corporate
vehicles. Yet, he feigned ignorance when it was suggested to him that when
the assets and liabilities of the Plaintiff Company were transferred to the First
Defendant, it followed that all loan, debts liabilities of the Plaintiff Company
were also transferred to the First Defendant, leaving nothing in the Plaintiff
Company.
[93] Taking into account the dominant position of SP1 in all these companies,
and that the Second and Third Defendants were at the behest of SP1, it is my
view that there were no loans owing and that these figures were concocted to
make it appear as though monies were owing to the Plaintiff Company, but in
actual fact, based on the evidence adduced in this Court, both oral and
documentary, these alleged debts and loans were a façade to the numerous
intertwining arrangements between SP1 and the Second and Third
Defendants.
[94] I also have to add that SP1 lacked severely in decorum and courtliness.
He derided Counsel for the Defendants during cross-examination and even
poured scorn on the questions and suggestions put to him. I had to caution
him that he was in a court of law, and even his Counsel had to remind him
several times to answer the questions politely and concisely. Below are several
extracts from the Notes of Evidence, which illustrate SP1's impertinence:
DC: Do you have the book with you?
SP1: Do you have?
DC: Never mind, so when Grand Tractor Parts Sdn Bhd.
SP1: I am not genius can remember all the date and the time.
...
DC: And can you please read to us item NO 1 in the resolution?

SP1: Why not you read, you have better English.
...
JC: "Agreed to transfer" so where does it says sale? Because of the

consideration?
SP1: Ah, that 1.1 million, is a sale to that.
DC: So, the word "sale" was never stated here, right?
SP1: Ya. But here also not say giving free.
DC: I am not going to argue with you, Mr Toh. Please behave

yourself in Court. This is not a coffee shop, okay, Mr Toh. I have been
very very patient with you, okay, if you want me to be nasty, I can be
nasty, Mr Toh. I give you enough space, okay.
[JC = Judicial Commissioner; DC = Defendants' Counsel]
[95] Although the demeanour of the witness is only one aspect when
considering the totality of the evidence, it is imperative for witnesses to
observe decorum and civility in a court of law.
[96] Counsel for the Plaintiff Company explained that SP1 was agitated
because he was being asked irrelevant questions, but based on my observation,
SP1 became agitated whenever he was asked questions which answers were
unfavourable to him.
[97] I am mindful that cross-examination may not be a pleasant experience for

everyone, but it is definitely not an excuse to be rude and belligerent, and
above all, there can be no tolerance whatsoever for impertinence and
effrontery to any officer of the court.
[98] With regard to the credibility of the Third Defendant who gave evidence
as SD1, Counsel for the Plaintiff referred to a previous suit between the parties
at Johor Bahru High Court Suit No 22-NCvC-99-07/2015 and reproduced the
evidence of the Third Defendant to contend that his credibility was
compromised as his given in that suit is inconsistent with his evidence now.
[99] This contention is misconceived as I am of the opinion that Suit No 22-

NCvC-99-07/2015 is irrelevant to the present suit by virtue of s 43 of the
Evidence Act, which reads:
Section 43 - Judgments, etc, other than those mentioned in ss 40 to 42

when relevant.
Judgments, orders or decrees other than those mentioned in ss 40, 41

and 42 are irrelevant unless the existence of such judgment, order or
decree is a fact in issue or is relevant under some other provision of

this Act.
[100] Counsel for Plaintiff had not convinced the Court of the relevance of Suit
No 22-NCvC-99-07/2015 in this trial, as the former suit concerned the issue of
SP1's claim for 30,000 shares from the Plaintiff Company, whereas this suit
was premised on the alleged monies due and owing from the Defendants to
the Plaintiff Company.
[101] Secondly, Counsel for the Plaintiff Company argued that the Third
Defendant was not credible by simply comparing his statements in the
previous suit with those in the current action. In my view, the proper method
would have been to impeach the Third Defendant accordingly.
[102] On this point, reference should be made to s 155 of the Evidence Act:
Section 155 - Impeaching credit of witness
The credit of a witness may be impeached in the following ways by the

adverse party or, with the consent of the court, by the party who calls
him:
(a) by the evidence of persons who testify that they from their
knowledge of the witness believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted
the offer of a bribe, or has received any other corrupt
inducement to give his evidence;
(c) by proof of former statements inconsistent with any part of

his evidence which is liable to be contradicted;
[103] In the process of impeaching a witness, the following steps as prescribed

by the cases of See Krishnan Marimuthu & Anor v. PP and Muthusamy v. PP
[1947] 1 MLRH 587; [1948] 1 MLJ 57, must be adhered to:
a) The passages in the former statement should first be marked to

highlight the inconsistencies, if at all;
b) The court should then read the former statement to determine the
discrepancy, if any. Minor discrepancies should be ignored;
c) The two conflicting versions must be compared and explained to the

witness, for the witness to justify the differences. It is the witness' right
to explain the contradiction;
d) If the court accepts his explanation, his credit is intact. If the court
does not accept the explanation of the witness, it nevertheless, should
not result in an immediate order of impeachment, but should be
viewed as a whole with the rest of the evidence at the appropriate
stage.
[104] This procedure was not complied with by Counsel for the Plaintiff
Company when he referred to the earlier statements of the Third Defendant, to
show that they were inconsistent with his current statement. I am, therefore,
unable to agree with the submission of Counsel for the Plaintiff Company that
the evidence of the Third Defendant should be disregarded altogether.
[105] Counsel for the Plaintiff Company also urged the Court to take note of
the lack of credibility and demeanour of the Third Defendant based on his
evidence in court. However, instead of providing a basis for the Court to make
such evaluation, Counsel, in his written submission merely regurgitated pp 55
to 57 of the Notes of Proceedings. In my view, this method of submission is
inadequate and bereft of substance. I am, therefore, unconvinced that the
credibility of the Third Defendant has been compromised.
[106] In fact, on the contrary, I found the Third Defendant, to be forthright

and consistent. He did not mince his words or evade questions. He answered
the questions with clarity and in detail. Discrepancies in his evidence, if at all,
were minor, and on the whole, he was convincing in his evidence. The
evidence of SP1, in contrast, was questionable and unsupported in his
averments and claims
Conclusion
[107] I am, therefore, of the view, that apart from the issue of limitation which
has set in, even if the case was not statute barred, the Plaintiff Company has
failed to prove its claim on a balance of probabilities.
[108] Based on the foregoing reasons, and after careful consideration of the
evidence, both oral and documentary, as well as submissions by Counsel for
both parties, I dismissed the Plaintiff Company's claim with costs in the
amount of MYR35,000 (subject to allocatur fees).

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Grand Tractor Parts Sdn Bhd

GRAND TRACTOR PARTS SDN BHD

High Court Malaya, Johor Bahru

Case(s) referred to:

Legislation referred to:

[Dismissed the plaintiff company's claim with costs.]

Evrol Mariette Peters JC:

b) MYR143,873.66 from the First and Second Defendants for tax

c) MYR590,084 from the Second and Third Defendants, being a loan

The Background Facts

Hwa ("Mr Tay") holding 20%.

The Plaintiff's Case

[9] The Plaintiff Company also claimed for an amount of MYR143,873.66

The Defendants' Case

[17] The following were the Defendants' witnesses:

(b) Tan Ah Ngin (SD2 who is also the Second Defendant)

Contentions And Findings

Whether The Plaintiff Company's Claim Is Statute Barred

Section 6 - Limitation of actions of contract and tort and certain other

(1) Save as hereinafter provided the following actions shall not be

(a) actions founded on a contract or on tort;

(b) actions to enforce a recognisance;

(c) actions to enforce an award;

(d) actions to recover any sum recoverable by virtue of any

[20] The law of limitation is based on the time-honoured doctrines of 'interest

[24] Although several documents were referred to by Counsel for the

1. That the Company forthwith do hereby demand from Mr

this letter failing which the Company lodge a [complaint] with

2. That the Company forthwith do hereby demand and require

3. That the Company forthwith do hereby demand from

Our client hereby instructs us to put your client on Notice which we

181A - Proceedings on behalf of a company

(2) Proceedings brought under this section shall be brought in the

(3) The right of any person to bring, intervene in, defend or

(a) a member of a company, or a person who is entitled to be

(b) a former member of a company if the application relates to

(c) any director of a company; or

(d) the Registrar, in case of a declared company under Part IX.

Nothing is this Act shall affect any equitable jurisdiction to refuse

But in every case if an argument against relief which otherwise would

Laches is an equitable defence implying lapse of time and delay in

To set out the general principles first, it is an established rule of equity

[39] It is, therefore, an established rule of equity that a plaintiff in equity is

Whether SP1 Was In Full Control Of The Plaintiff Company

[41] Regardless of the doctrine of limitation, I would have dismissed the

Whether The Sum Of MYR1.1 Million Was Owing By The Defendants

duly signed by SP1, and exhibited at p 120 of Part B of the CBD.

[53] According to the Second Defendant, he had expressed an intention to

[54] The evidence of the Second and Third Defendants is supported by

[56] The intention of SP1 to wind up the Plaintiff Company, therefore,

Whether tHe Sum Of MYR143,873.66 Was Owing By The Defendants

[58] The claim for the amount of MYR143,873.66 is groundless and

[60] This is reflected in the Notes of Proceedings as follows:

DC: The amount which you claimed MYR143,876.66 which is from

SP1: Yes, agree

DC: It was not banked into Mr Chey's account or Mr Tan Ah Ngin's

Whether The Sum Of MYR590,084 Was Owing By The Defendants

[62] In relation to the Plaintiff Company's claim for MYR590,084, the

Plaintiff Company to the Second Defendant.

[65] It is pertinent to note at this juncture that it is an offence for a company to

Whether The Plaintiff Company Had Proved Its Case

Section 101 - Burden of proof

Whether The Parol Evidence Rule Applied