Fujasa Property Sdn Bhd and Another v Idaman Unggul Berhad and Another
Civil Appeal No. B-02 (NCVC) (W)-19-01/2014; Court of Appeal
Date of Judgment: 24 June 2015 | Source: Federal Court Registry

DALAM MAHKAMAH RAYUAN MALAYSIA

[BIDANG KUASA RAYUAN]

RAYUAN SIVIL NO. B-02 (NCVC) (W)-19-01/2014

ANTARA

1. FUJASA PROPERTY SDN BHD [NO. SYARIKAT : 722293-M]

2. IDEAL CAPITAL INTELLIGENCE SDN BHD [NO. SYARIKAT: 479080-D] ... PERAYU-PERAYU

DAN

1. IDAMAN UNGGUL BERHAD [NO. SYARIKAT: 279343-W]

2. IDRIS HYDRAULIC PROPERTIES SDN BHD [NO. SYARIKAT: 46968-U] ...RESPONDEN-RESPONDEN

[Dalam Mahkamah Tinggi Malaya Shah Alam di dalam Negeri Selangor Guaman Sibil No. 22NCVC-718 06/2012

Antara

1. FUJASA PROPERTY SDN BHD [NO. SYARIKAT : 722293-M]

2. IDEAL CAPITAL INTELLIGENCE SDN BHD [NO. SYARIKAT: 479080-D] ... PERAYU-PERAYU

Dan

1. IDAMAN UNGGUL BERHAD [NO. SYARIKAT: 279343-W]

2. IDRIS HYDRAULIC PROPERTIES SDN BHD [NO. SYARIKAT: 46968-U] ...RESPONDEN-RESPONDEN

CORAM: DAVID WONG DAK WAH, JCA; HAMID SULTAN BIN ABU BACKER, JCA; VERNON ONG LAM KIAT, JCA

GROUNDS OF JUDGMENT

In the suit filed by the plaintiffs in the High Court at Shah Alam, the plaintiffs are claiming for, inter alia a declaration that the Settlement and Assignment Agreement dated 30.8.2006 is null and void for being in contravention of s 67 of the Companies Act 1965 (‘CA 1965'). The learned trial judge found that there was no financial assistance infringing s 67 of the Act. The learned trial judge also held that even if it is found to have infringed the said section, it would not render the Settlement and Assignment Agreement null and void; the civil aspects of the transaction are preserved but it will expose the directors to penal sanctions. The defendants' counterclaim was allowed and it was declared that the Settlement and Assignment Agreement was valid and enforceable.

The plaintiffs have appealed against the decision of the learned trial judge. The defendants have also cross-appealed for an order to compel the 1st plaintiff to pay RM14,200,000.00 together with interest. In this judgment the parties shall be referred to as they were in the High Court suit.

Brief account of the salient facts

[1] Fujasa Sdn Bhd (‘FSB') is in the business of property development. FSB was at the material time the owner of a piece of land in Penang (‘the Land').

[2] The 2nd defendant Idris Hydraulic Properties Sdn Bhd (‘IHPSB') was at the material time the sole shareholder of FSB.

[3] Pursuant to a Share Sale Agreement dated 17.1.2006 (‘the Share Sale Agreement'), IHPSB agreed to sell all its shares in FSB to Iktinuri Development Sdn Bhd (‘Iktinuri'). The salient terms include the following:

i. Iktinuri to pay IHPSB a nominal sum of RM2.00;

ii. Iktinuri shall assume all of FSB's liabilities amounting to RM31,300,000.00 as set out in the Second Schedule;

iii. Iktinuri to deposit RM500,000.00 (‘the Deposit Sum') with IHPSB as stakeholder;

iv. the Deposit Sum shall be deducted (from IHPSB's entitlement of RM5 million) in 5 equal instalments within 15 months from the date of full settlement by Iktinuri of all the liabilities as stated in the Second Schedule and upon obtaining a complete discharge from the creditors listed therein; and

v. Iktinuri shall commence construction work of the mixed commercial and/or residential development proposed to be undertaken by FSB on the Land upon the successful completion of the Share Sale Agreement (‘the Proposed Development') within 6 months from the date of obtaining the Commencement of Work Order from the local authorities.

[4] On 4.5.2006, FSB entered into a Joint Venture Agreement (‘the Joint Venture Agreement') with the 1st plaintiff Fujasa Property Sdn Bhd (‘FPSB') under which FSB allowed FPSB to develop the Land. It was, inter alia agreed that:

i. FSB shall be entitled to receive RM5 million towards which a sum of RM500,000.00 has been deposited with FSB prior to the execution of the Joint Venture Agreement (cl 6.1.1);

ii. FPSB shall assume all of FSB's liabilities referred to in the Fourth Schedule which shall be settled by FPSB within 36 months from the date of commencement of work of the Proposed Development (cl. 6.1.2). The Fourth Schedule is identical to the Second Schedule of the Share Sale Agreement.

[5] Subsequently, 2 different sets of agreements were entered into on 30.8.2006. The first agreement is a Settlement and Assignment Agreement (‘Settlement and Assignment Agreement') between the 1st defendant Idaman Unggul Berhad (‘IUB'), IHPSB, FSB and FPSB. It was agreed that FPSB shall pay to IUB the RM5 million together with the ‘Assumed Liabilities' of RM13,200,000.00 (RM10,900,000.00 owing to Co-Operative Central Bank Limited and RM2,300,000.00 owing to KFC Holdings (M) Bhd).

[6] The second agreement is a Settlement Agreement (‘Settlement Agreement') entered into between IUB, IHPSB, FSB and Iktinuri. It was made with the intention of procuring the settlement of Iktinuri's obligations under the Share Sale Agreement, in particular the RM5 million due to IHPSB qua vendor and the said Assumed Liabilities.

[7] It is provided that the purpose of the Settlement Agreement is for Iktinuri to remit the Assumed Liabilities directly to IUB in consideration of IUB procuring IHPSB and Idris Hydraulic (M) Bhd to waive the inter-company debts owing by FSB to IHPSB and Idris Hydraulic (M) Bhd.

[8] The combined effect of 2 agreements dated 30.8.2006 is such that payment of the amounts due under the Settlement and Assignment Agreement would constitute a good discharge of Iktinuri's obligation under the Share Sale Agreement.

Essence of Finance Assistance Prohibition under s 67(1) CA 1965

[9] In essence, s 67 CA 1965 deals with the prohibition on a company providing financial assistance for the purpose of or in connection with a purchase or subscription of its own shares or in any way purchasing, dealing in or lending money on its own shares.

[10] The prohibition is consistent with the principle that the share capital of the company once raised must be maintained so that a company may not purchase its own shares (s 67A), or refund to its members moneys paid for their shares (NP Sinnasamy v Hup AIk Omnibus Co [1952] MLJ 36), or convert equity capital into a loan and then purport to repay the loan (179 Merchant Credit Pte Ltd v Industrial & Commercial Realty Co Ltd [1983] 1 MLJ 124, PC).

[11] Subsection (1) of s 67 CA 1965 which deals with the financial assistance prohibition reads as follows:

67. Dealing by a company in its own shares, etc.

(1) Except as is otherwise expressly provided by this Act no company shall give, whether directly or indirectly and whether by means of a loan, guarantee or the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the company or, where the company is a subsidiary, in its holding company or in any way purchase, deal in or lend money on its own shares. (Emphasis added)

[12] The rationale for the prohibition of any financial assistance to purchase a company's own shares was described by Lord Greene M.R. in Re VGM Holdings Ltd [1942] Ch 235, 239 CA in the following manner:

Those whose memories enable time to recall what had been happening after the last war for several years will remember that a very common form of transaction in connection with companies was one by which persons - call them financiers, speculators, or what you will - finding a company with a substantial case balance or easily realisable assets such as a war loan, bought up the whole or the greater part of the shares of the company for cash and so arranged matters that the purchase money which they then became bound to provide was advanced to them by the company whose shares they were acquiring, either out of its cash balance or by realisation of its liquid investments.

[13] The provision of financial assistance is frowned upon as it is expected that those who purchase shares in a company should do so from their own resources; they should not resort to the company's own resources. This practice has also been criticised as it may dissipate a company's assets to the detriment of the financial position of the company and is prejudicial to the nterests of the shareholders.

[14] In Burton v Palmer [1980] 5 ACLR 481, Hutley J laid down the proposition that "a transaction by a company cannot constitute the giving of financial assistance unless the transaction involves some diminution of the financial resources of the company". This proposition was rejected by McPherson S.P.J in Re National Mutual Royal Bank Ltd (1990) 3 ACSR 94, 101 SC (Queensland) who opined that it does not necessarily follow that because there is no such diminution there has been no financial assistance. The decision of McPherson S.P.J was preferred by the Supreme Court, WA in Dempster v NCSC (1993) 10 ACSR 297.

[15] There are, however, 3 exceptions to this prohibition. Briefly stated, the first exception relates to the shares of a company whose ordinary business is money lending (s 67(2)(a)); the second relates to a scheme whereby financial assistance is provided by a company for shares to be held by trustees for the benefit of employees (s 67(20(b)); and the third instance is where financial assistance is given by a company to its employees to purchase its fully-paid shares (s 67(2)(c)).

What is the meaning of ‘financial assistance"?

[16] A plain reading of s 67 CA 1965 indicates that the words ‘financial assistance' is widely construed. This may be inferred by the provision that the giving of financial assistance may be ‘whether directly or indirectly'; and the means by which it may be given such as a loan, guarantee or provision of security ‘or otherwise'.

[17] There are 2 components to the meaning of financial assistance within the scope of s 67 CA 1965. In the first instance, there must be some financial assistance given by the company. Secondly, the financial assistance should be given ‘for the purpose of or in connection with' the purchase of the company's shares.

[18] In determining whether or not there was any financial assistance in the sense prohibited under s 67, the Courts have adopted a practical approach in the construction of the meaning of financial assistance in the light of the commercial realities of the transaction.

[19] In Charterhoue Investment Trust Ltd & Ors v Tempest Diesels Ltd [1986] BCLC 1 Hoffmann J said at page 11:

The words (giving financial assistance) have no technical meaning and their frame of reference is in my judgment the language of ordinary commerce. One must examine the commercial realities of the transaction and decide whether it can properly be described as the giving of financial assistance by the company, bearing in mind that the section is a penal one and should not be strained to cover transactions which are not fairly within it.

[20] In Wallensteiner v Moir [1974] 1 WLR 991, 1014; [1984] 3 All ER 217 CA Lord Denning described how financial assistance may have been given in the following words:

You look to the company's money and see what had become of it. You look to the company's shares and see into whose hands they have got. You will then see if the company's money has been used to finance the purchase.

[21] As there are multifarious ways in which such financial assistance may be provided, it would be instructive to review some cases by way of illustration.

[22] In Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd [1990] 1 MLJ 356, a company bought shares in the hotel using a loan from a bank on the security of the hotel's land. The Supreme Court held that there was financial assistance which was prohibited under s 67 CA 1965.

[23] In KL Sdn Bhd v LGH [1990] 1 MSCLC 90, 402, shareholders in a company owing land transferred their shares to a developer. It was agreed that the developer would build houses on the land and transfer some of the houses to the shareholders. The developer financed the development by charging the company's land to a finance company. As the developer failed to deliver on its promise, the shareholders sued and obtained judgment under the contract. The developer appealed and argued that the transaction was in breach of s 67(1). The Supreme Court held that the arrangement to fund the building and transfer of the houses amounted to financial assistance within the meaning of s 67(1).

[24] In Utama Wardley & Anor v Leggan Laut Development Sdn Bhd & Ors [1991] 3 CLJ 2233, the company gave a negative pledge to a bank which was financing a purchaser to acquire its shares in the company. Pursuant to the pledge, the company deposited the title deeds to its land with the bank. The court held that there was no financial assistance as the negative pledge and the deposit of the title deeds by the company was not by way of security; it being merely an assurance by the company that it would not encumber its assets without prior consent of the bank.

[25] In Yap Sing Hock Holdings Bhd v Chuah Teong Hooi & Ors [1989] 2 MLJ 503, the purchaser created a debenture over its existing and future assets in favour of a bank to obtain finance to acquire shares in 3 other companies. As the debenture would also include the future assets of the purchaser in the 3 companies whose shares were being acquired, it was contended that this amounted to financial assistance. However, the court held that this did not constitute financial assistance as it was not the companies that created the debenture but the purchaser.

[26] In Simmah Timber Industries Sdn Bhd v David Low See Keat & Ors [1999] 5 MLJ 421, the plaintiff, and the first and second defendants entered into a lease-back agreement. Under the agreement, the second defendant would transfer, among others, all his shares in the plaintiff to the first defendant and settle in full all outstanding loans and liabilities of the plaintiff, in consideration that the plaintiff would transfer its assets as enumerated in a schedule, a lease of land and the tenancy of its office to the second defendant. The second defendant would, thereafter, leaseback the assets, and assign and transfer the tenancy back to the plaintiff. The first defendant having gained control of the plaintiff, entered into a sub-lease agreement with the third defendant. Under the sub-lease agreement, the third defendant would pay the plaintiff monthly rental and electricity and water charges in consideration to the plaintiff for sub-letting a portion of its business premises. The plaintiff's claims, as against the first defendant, as director and trustee of the company, an account of all monies received under the sub-lease agreement and payment of all sums received and found due after the taking of the account, and as against the second defendant, as constructive trustee, similar account and payment of all sums found due from the second defendant to the plaintiff. Alternatively, the plaintiff's claim against the first, second and third defendants for damages for conspiracy to injure. In addition, the plaintiff contended that the agreement was in contravention with s 67. The second defendant, however argued that the agreement fell within the exception in s 67(2)(c) which permits for the giving of financial assistance by a company to its employees to purchase fully-paid shares in the company.

[27] In that case the Court found that the first defendant had breached his duties as a director under s 132 CA 1965 and as a fiduciary of the plaintiff because he had taken the monies paid by the third defendant for the sub-rentals and the electricity charges and that he did not account at all to the plaintiff. Under the agreement, the first defendant had received shares in the plaintiff by transferring the company's assets to the second defendant. This is a clear case of fraud on the company by its director. There was a depletion of monies due to the company when monies were paid out to the second defendant and a depletion of the company's assets when the assets were transferred to the second defendant, and thereafter, by them being leased back to the company for which payments were made. The court found that it was a cleverly planned subterfuge to deplete the assets of the company; there was no financial assistance to the employees of the company to buy into the shares of the company.

[28] In Kidurong Land Sdn Bhd & Anor v Lim Gaik Hua & Ors [1990] 1 MLJ 485, SC a company, Chen Hua Development (M) Sdn Bhd was the registered owner of a piece of land known as Taman Hilltop. The vendors of the shares in Chen Hua Development entered into a joint venture agreement with Kidurong Land Sdn Bhd, a housing developer, whereby the vendors transferred their shares to Kidurong for RM3.8 million; the consideration to be paid in kind by the transfer of certain specified units of houses to be constructed on Taman Hilltop. Kidurong had agreed to develop Taman Hilltop. The issue for determination before the Supreme Court was whether the joint venture agreement to develop Taman Hilltop had infringed s 67(1) in that the transfer of the shares in Chen Hua to Kidurong was financed by Chen Hua by charging the Taman Hilltop land; the land which is Chen Hua's asset. The Supreme Court held that the provisions of s 67 is very wide - the financial assistance can be direct or indirect. Kidurong had used all the money it obtained from the charge of Chen Hua's land for the projects, i.e. to build the houses and that the payments of the shares was to be by the transfer of part of the project. The Supreme Court found that the funding of the project which in effect is the funding of the houses to be transferred is any direct or indirect financial assistance and as such is a breach of s 67.

[29] In Belmont Finance Corp Ltd v Williams Furniture Ltd & Ors (No. 2) [1980] 1 All ER 393, CA the Court of Appeal held that there was financial assistance where a company purchased property from a person at an inflated price with the sole purpose of enabling that person to purchase the company's shares. Buckley L.J., speaking for the Court of Appeal said at p 403:

It was an exceptional and artificial transaction and not in any sense an ordinary commercial transaction entered for its own sake in the commercial interests of Belmont. It was part of a comparatively complex scheme for enabling Mr. Grosscurth and his associates to acquire Belmont at no cash cost to themselves, the purchase being found not from their own funds or by the realisation of any asset of theirs (for Maximum continued to be part of their group of companies) but out of Belmont's own resources.

Consequences of Breach of Financial Assistance Prohibition

[30] Both criminal and civil consequences flow from a breach of the prohibition.

[31] Briefly, criminal consequences fall on the officers of the company in default; the company is not liable as the law recognises it as the victim of the breach. Under s 67(3) each officer who is in default is liable to a fine of up to RM100,000.00 or 5 years imprisonment or both.

[32] Civil consequences are governed by sub-s (6) of s 67. Subsection (6) was amended by the Companies (Amendment) (No. 2) Act 1992 came into effect on 10.9.1992. According to the unamended version, it was provided that "the company" was not prevented from recovering the amount of any loan made in breach of s 67.

[33] Subsection (6) of s 67 was amended by the insertion of the words "or any person" after the words "the company". The amended sub-s (6) is as follows:

Nothing in this section shall operate to prevent the company [or any person] from recovering the amount of any loan made in connection of this section or any amount for which it becomes liable, either on account of any financial assistance given, or under any guarantee entered into or in respect of any security provided, in contravention of this section.

[34] In Hotel Rasa Sayang, (supra) the Supreme Court held that a transaction made in breach of the financial assistance prohibition would be null and void under s 24 of the Contracts Act 1950. The Supreme Court held that the words "the company" referred to the company itself which had provided the financial assistance and the meaning of the words did not include a third party - the lender in that case. The Supreme Court in Kidurong, (supra) also arrived at the same conclusion that an agreement which contravenes s 67 is void and unenforceable under s 24 of the Contracts Act 1950.

[35] Subsequently, sub-s (6) also came to be considered in Lori (M) Bhd (Interim Receiver) v Arab-Malaysian Finance Bhd [1999] 3 MLJ 81; [1999] 23 AMR 3161 FC where the Federal Court departed from the Supreme Court's approach in Hotel Rasa Sayang, (supra). It is pertinent to observe that even though Lori, supra was decided after the amendment of sub-s (6) of s 67 CA 1965, the Federal Court did not apply the amended sub-s (6) because the impugned financial assistance occurred prior to the date the amendment took effect.

[36] In Lori, (supra) the High Court had granted an order for the sale of land which was charged by way of security by Lori (M) Bhd (‘Lori') in favour of Arab-Malaysian Finance Bhd (‘AMFB') for a loan pursuant to the National Land Code 1965. Lori was originally owned by Majlis Amanah Rakyat (‘MARA'). MARA had appointed Technivest Sdn Bhd to manage Lori. Later MARA offered to sell its shares in Lori to Technivest. Technivest applied to AMFB for a term loan of RM4.3 million. Technivest informed AMFB that the purpose of the loan was to pay MARA for the settlement of Lori's liabilities with MARA and its subsidiaries. AMFB required a charge over the land owned by Lori as part of the security for the loan facility. However, this offer was revoked as the proceeds of the loan provided by AMFB would be used by Technivest to purchase the shares owned by MARA in Lori; as such it would fall foul of the financial assistance prohibition under s 67. Subsequently, Lori applied to AMFB for a fresh loan facility. By that time the shares in Lori had already been transferred to Technivest. AMFB required a charge of the land owned by Lori as security for the loan facility. The charge and loan facility agreement were executed on 11.10.1990. Eventually Lori defaulted in the repayment of the loan and AMFB applied to the High Court to enforce the charge. At the High Court, Lori, through its interim receiver, contended that the charge was unenforceable as it contravened the financial assistance prohibition under s 67 CA 1965. Lori's argument was rejected and the High Court granted an order for sale in favour of AMFB. Lori appealed to the Federal Court arguing that the High Court erred in holding that the loan facility arrangements did not contravene the financial assistance prohibition. The Federal Court dismissed the appeal.

[37] The Federal Court in Lori, supra took the position that Hotel Sayang, (supra) was decided per incuriam because the Supreme Court failed to actually construe the words "for which it becomes liable" in subs (6) and placed undue stress on the provisions of s 24 of the Contracts Act 1950 and held that because the bank had knowledge of the illegality and the nature of the transaction at the material time, the bank's claim failed. The Federal Court took the view that sub-s (6) creates an important exception to s 24 of the Contracts Act 1950 by allowing recovery under an illegal contract, thereby excluding the operation of s 24. Sub-s (6) was enacted for the protection of the company's funds and the interests of shareholders as well as creditors and the general public. The Supreme Court in Hotel Rasa Sayang, (supra) had been unduly swayed by certain English cases as the relevant legislation on which they were decided did not have an equivalent sub-s (6) saving provision. Another difference was that the prohibition under the relevant English legislation imposed criminal liability not only on officers of the company but also the company itself, whereas under s 67, criminal liability is only imposed on officers of the company. The Federal Court also held that sub-s (6) of s 67 appears to be a statutory recognition of the rule in Victor Battery Co Ltd v Curry's Ltd & Ors [1946] Ch 242 where it was decided that an illegal security given by a company to finance the purchase of its own shares contrary to s 45(1) of the Companies Act 1929 (UK) (being the equivalent to our s 67(1) CA 1965) was not avoided. The Federal Court noted, however, that the Companies Act 1929 (UK) did not have a provision equivalent to our sub-s (6) of s 67; and added that even if Victor Battery was wrongly decided, it matters not for the principle enunciated therein had been statutorily recognised in sub-s (6) of s 67.

Issues for determination

[38] In this appeal, the principal issues for determination relates to the question of whether the Settlement and Assignment Agreement contravenes the financial assistance prohibition under s 67(1); and if so, whether by virtue of sub-s (6) of s 67 the Settlement and Assignment Agreement is not rendered null and void.

[Whether the Settlement and Assignment Agreement contravenes s 67(1) CA 1965?]

[39] In this case there are 4 separate agreements and they are as follows:

i. Share Sale Agreement between IHPSB and Iktinuri;

ii. Joint Venture Agreement between FSB and FPSB;

iii. Settlement and Assignment Agreement between IUB, IHPSB, FSB and FPSB; and

iv. Settlement Agreement between IUB, IHPSB, FSB and Iktinuri.

[40] Is there any evidence to suggest that these 4 agreements are interrelated and or forms part of an overall scheme of arrangement? To answer this question, it is necessary to peruse the agreements in question.

[41] For a start, Recital A of the Settlement and Assignment Agreement makes reference to the Joint Venture Agreement. Secondly, both the Settlement and Assignment Agreement and the Settlement Agreement makes mutual reference to each other in Recitals D and C respectively. Thirdly, and more significantly, Recital A of the Settlement Agreement makes reference to the Share Sale Agreement. In short, the 4 agreements are interconnected; the diagram below illustrates the connection between the agreements.

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[42] The Settlement Agreement and the Settlement and Assignment Agreement also share identical provisions vide clause 2.1 whereby it is stated that Iktinuri shall remit the Assumed Liabilities directly to IUB in consideration of IUB procuring IHPSB and Idris Hydraulic (Malaysia) Bhd to waive the intercompany debts owing by FSB to IHPSB and Idris Hydraulic (Malaysia) Bhd.

[43] The common thread that runs through all the 4 agreements is the reference to the Deposit Sum of RM500,000.00 and the Assumed Liabilities in the agreements.

[44] Learned counsel for the plaintiff that the Assumed Liabilities (for the purposes of the present appeal, only 2 items in the Second Schedule of the Share Sale Agreement are pertinent - (i) RM10,900,000.00 due to Co-operative Central Bank Limited, and (ii) RM2,300,000.00 due to KFC Holdings (M) Bhd) although described as FSB's liabilities in the Share Sale Agreement was in fact an amount payable by IHPSB to the respective creditors. These liabilities were subsequently absorbed by IHPSB's ultimate holding company, namely IUB in a debt restructuring exercise. At the material time, FSB was the wholly owned subsidiary of IHPSB. This fact is borne out by the evidence in chief of DW1.

[45] Learned counsel for the plaintiff submitted that the object of the Settlement and Assignment Agreement was to channel FSB's share of income from the development of the land under the Joint Venture Agreement to satisfy the amount which would otherwise had to be paid by Iktinuri to IUB in discharge of Iktinuri's obligations under the Settlement and Assignment Agreement. As a consequence, the assets of FSB would be depleted.

[46] Learned counsel also argued that in essence FSB had funded the development of its land the proceeds of which were to be conveyed to IUB and IDPSB in payment for their shares. As such, the Settlement and Assignment Agreement was to deplete FSB's assets and to return the assets to IUB and IHPSB otherwise than by way of dividends.

Decision

[47] Under the Share Sale Agreement, Iktinuri agreed to purchase all of FSB's shares from IHPSB; as consideration Iktinuri, inter alia agreed to pay the Deposit Sum and assume the Assumed Liabilities. The first part of the obligation was fulfilled because Iktinuri paid the Deposit Sum to IHPSB; Iktinuri's cheque dated 11.1.2006 was presented for payment on 17.1.2006. What remains unfulfilled is Iktinuri's obligation to assume FSB's liabilities as set out in the Second Schedule.

[48] Under the Joint Venture Agreement, FSB as the owner of the Land agreed to FPSB developing the Land; whereby in consideration thereof FPSB agreed to pay the Deposit Sum to FSB (described as ‘Owner's Entitlement') and to assume the Assumed Liabilities. It appears that IHPSB was persuaded by Iktinuri to enter into the Joint Venture Agreement; Iktinuri's intentions may be discerned in 2 letters dated 3.5.2006 and 14.7.2006 issued by Iktinuri to IHPSB. It is pertinent to note that FPSB and FSB are part of the Ideal Group of companies headed by one Alex Ooi; this fact is borne out in SP1's testimony under crossexamination.

[49] Under the Settlement Agreement, Iktinuri agreed to remit the Deposit Sum and Assumed Liabilities to IUB.

[50] However, under the Settlement and Assignment Agreement of even date FPSB now agrees to pay to IUB the Deposit Sum and Assumed Liabilities. Significantly, FPSB assigns the proceeds from the development of the Land as security for the due payment of the said sums to IUB. In fact, there is evidence to show that the Deposit Sum due under the Joint Venture Agreement went to discharge part of the sale proceeds of the sale of the shares and that the sale proceeds were used to pay the Assumed Liabilities. IUB's letter dated 15.9.2011 indicates that most of the payments of the Deposit Sum/Owner's Entitlement were made by FPSB and Ideal Property Intelligence Sdn Bhd for Iktinuri (see RR(4) at p432/5; PW1's evidence at CB(2) at p66).

[51] Under the Share Sale Agreement, Iktinuri agreed to purchase all of FSB's shares from IHPSB; as consideration Iktinuri, inter alia agreed to settle the Deposit Sum and Assumed Liabilities.

[52] Under the Joint Venture Agreement, FSB as the owner of the Land agreed to FPSB developing the Land; whereby in consideration FPSB agreed to pay the Deposit Sum to FSB (described as ‘Owner's Entitlement') and to assume the Assumed Liabilities.

[53] Under the Settlement Agreement, Iktinuri agreed to remit the Deposit Sum and Assumed Liabilities to IUB.

[54] However, under the Settlement and Assignment Agreement of even date FPSB now agrees to pay to IUB the Deposit Sum and Assumed Liabilities. Significantly, FPSB assigns the proceeds from the development of the Land as security for the due payment of the said sums to IUB. In fact, there is evidence to show that the Deposit Sum due under the Joint Venture Agreement went to discharge part of the sale proceeds of the sale of the shares and that the sale proceeds were used to pay the Assumed Liabilities. IUB's letter dated 15.9.2011 is particularly telling; it contains an admission to the effect that most of the payments of the Deposit Sum/Owner's Entitlement were made by FPSB and Ideal Property Intelligence Sdn Bhd for Iktinuri (see RR(4) at p432/5; PW1's evidence at CB(2) at p66).

[55] Taking the above facts in totality, there is no evidence to suggest that Iktinuri actually paid for the shares under the Share Sale Agreement. The evidence indicates that under the Settlement and Assignment Agreement, the sale proceeds realised from the development of the FSB's Land, instead of accruing to FSB, were to be used to finance Iktinuri's obligation under the Share Sale Agreement.

[56] As the words ‘giving financial assistance' have no technical meaning the commercial realities of the Settlement and Assignment Agreement should be examined in order to ascertain whether it can properly be described as the giving of financial assistance by FSB.

[57] Applying the principles adverted to above, it cannot be gainsaid that the ultimate objective of the Settlement and Assignment Agreement was to divert FSB's share of income from the development of the Land under the Joint Venture Agreement to satisfy the amount which would otherwise had to be paid by Iktinuri to IUB in discharge of Iktinuri's obligations under the Share Sale Agreement. As a result of this sophisticated scheme, 2 consequences flowed - (i) the purchase consideration for FSB's shares would be paid for by FSB's assets, to wit, the proceeds of sale from the development of the Land, and (ii) depletion of FSB's assets.

[58] The diversion of FSB's share of the income from the development of the Land under the Joint Venture Agreement had the ultimate effect of relieving Iktinuri from meeting its payment obligations under the Share Sale Agreement. In other words, Iktinuri got the shares but it did not pay for the shares from its own resources. Instead, by the creation of a series of interconnected agreements, in particular the Settlement and Assignment Agreement, FSB's own resources have been used to finance the purchase of its own shares. As added consequence of the Settlement and Assignment Agreement, FSB's assets were depleted and indirectly returned to IUB and IDHP otherwise than by way of dividends.

[59] For the foregoing reasons, we do not agree with the learned trial judge whose findings are not consonant with the true nature of the Settlement and Assignment Agreement. Consequently, the question is answered in the affirmative. Accordingly, the Court will now consider the question of whether the Settlement and Assignment Agreement is void for illegality.

Whether the Settlement and Assignment Agreement is void for illegality?

[60] Learned counsel for the plaintiffs submitted that the learned trial judge misdirected himself in holding that even if the Settlement and Assignment Agreement infringed the financial provision prohibition, it would not render the Settlement and Assignment Agreement void but it will expose the directors of FSB to penal sanctions citing Co-Operative Central Bank Ltd (In Receivership) v Feyen Development Sdn Bhd [1995] 3 MLJ 313 and Lori, (supra).

[61] In Feyen, (supra) CCB had given a loan to its member who was also a director of Feyen. Feyen had guaranteed the loan to its director and had also created 2 separate charges in favour of CCB as security. Upon default, CCB applied for orders of sale of the charged properties. Feyen resisted CCB's application on the ground that the charge transactions breached s 133(1) CA 1965 which forbids it from providing security for loans taken by its directors from third parties. The High Court ruled both transactions to be void and unenforceable in law. On appeal, the Federal Court held that a guarantee or security given in breach of s 133(1) prohibition is valid and not void. The Federal Court said that the Court will not lend its aid to enable the charger to take advantage of its own default by relying on its own breach to avoid the charge transactions and thereby escape its obligations thereunder, unless this is what the clear language of the statute is thought to require. Section 133 is designed to protect the company, its shareholders and creditors from unlawful dissipation of its resources and ought to be given a purposeful approach. To admit the defence of illegality to a commercial transaction would defeat such purposive interpretation as it would defeat the chargee's application to enforce the charges by an order for sale but would provide "a windfall gain" to the charger and others in a similar position. Even accepting that the charge transactions did breach s 133(1) CA 1965, no civil consequences flowed therefrom so that no voidness or unenforceability attached to the loan or the charge transactions.

[62] In Lori, (supra) a loan was given on the security of a charge over Lori's property for the purpose of enabling the purchaser to purchase Lori's entire share. In that case, the Federal Court held that the Lori's liability to AMFB both in respect of the land and the security remains unaffected on the ground that sub-s (6) of s 67 creates an important exception to s 24 of the Contracts Act by allowing recovery under an illegal contract, thereby excluding the operation of s 24.

[63] Learned counsel for the plaintiffs argued that Lori (supra) had nothing to do with subsection 67(1) but with subsection 67(6). He also argued that in Lori (supra) security had been given and the question was whether the security was enforceable. Only the security was saved under subsection 67(6) and not the transaction. This case had nothing to do with any loan, guarantee or security as in Lori (supra). The transaction fell within the general rule of s 67 and not under any of the 6 exceptions.

[64] In Lori (supra), the Federal Court opined that the trend shown by the courts in Common Law countries to be slow in striking down commercial contracts on the ground of illegality is a sensible one and should be followed thus incorporating it as part of our Common Law. The Federal Court also considered at length the question of whether subsection 67(6) excludes the operation of s 24 of the Contracts Act. The aforesaid question was considered by the Federal Court in the context of the general scheme of subsection 67(1) upon which the question of illegality arose.

[65] According to the learned authors of Chan & Koh on Malaysian Company Law Principles & Practice Second Edition at 318, the words "or otherwise" in subsection 67(1) is not be construed ejusdem generis to loan, guarantee or security "for the genus has already been stated, namely the giving of financial assistance" and the legislature did not intend it to be narrowly construed (Juniper Pty Ltd v. Grausom (1983) 8 ACLR 212, 214; 1 ACLC 1342, 1344). The words "or otherwise" was construed as meaning "in any other way" by McInerney J in the Australian case of EH Dey Pty Ltd (In Liquidation) v. Dey [1966] VLR 464, 469). In this light, subsection 67(6) must be read in the context of subsection 67(1) so as to give full effect to the intent of the legislature. As such, the application of subsections 67(1) and (6) is not restricted to a loan, guarantee or security but includes any form of financial assistance in any other way.

[66] Accordingly, we do not think that there is any merit to the proposition advanced by learned counsel for the plaintiffs. As subsection 67(6) allows for the recovery under an illegal contract, the operation of s 24 of the Contracts Act which provides that every agreement of which the object or consideration is unlawful is void is thereby excluded. We are therefore constrained to hold that the Settlement and Assignment Agreement is not rendered null and void.

[Defendants' Cross Appeal]

[67] In the light of the foregoing, the Court will now address the issue of the defendants' cross appeal. After dismissing the plaintiff's claim, the learned trial Judge allowed the defendant's counterclaim only insofar as it related to the declaration affirming the validity and enforceability of the Settlement and Assignment Agreement. The defendant's cross appeal relates to FPSB's liability to pay RM14.2 million to the defendants.

[68] Learned counsel for the plaintiffs submitted that the learned trial Judge had granted the declaration prayed in the defendants' counterclaim and that since they got what they asked for the cross appeal is academic.

[69] With respect, we do not agree that the cross appeal is academic. The defendants did not get their prayers for FPSB to pay the RM14.2 million together with interest. As such they are entitled to pursue their counterclaim for RM14.2 million in their cross appeal.

[70] The claim for RM14.2 million represents the balance due and owing under: (i) IHPSB's entitlement of RM5 million (under clause 8.4), and (ii) FSB's liabilities of RM13.2 million under the Second Schedule (clause 2.2(b)) under the Settlement and Assignment Agreement. Pursuant to the Settlement and Assignment Agreement and the Joint Venture Agreement, the said liabilities in the aggregate of RM18.2 million were assumed by FPSB to pay to IUB.

[71] According to the evidence adduced at the trial, between 2006 and 2011, the plaintiffs have made payments amounting to RM4 million in part payment of IHPSB's entitlement and FSB's liabilities. As such, there is an outstanding balance of RM14.2 million due and owing to IUB under the Settlement and Assignment Agreement which remains unsatisfied and undischarged by FPSB. Accordingly, IUB should be entitled to judgment on the said sum together with interest as prayed.

Concluding remarks

[72] For the foregoing reasons, we dismiss the plaintiffs' appeal. The defendants' cross appeal is allowed with costs. Judgment on the defendants' counterclaim is allowed in terms of prayers 84(a), (g), (h) and (i) of the Statement of Defence and Counterclaim dated 18.1.2012. The decision of the High Court is affirmed. We award costs of RM40,000.00 to the defendants.

sgd
VERNON ONG
JUDGE
COURT OF APPEAL
MALAYSIA

DATED : 24th June 2015

Datuk Seri Gopal Sri Ram, Lim Choon Kim & Simon Murali - Tetuan Lio & Partners, Peguambela & Peguamcara, No. 29, Green Hall, 10200 Pulau Pinang - Plaintif

Mohaji Bin Selamat & Moor Hazury Mohd Zubir - Tetuan Mohaji, Hazury & Ismail, Y2, 49A, Blok G, Tingkat 2, Jalan Plumbum Y/7Y, Pusat Komersial Seksyen 7, 40000 Shah Alam, Selangor -Responden

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