Litigation - WordPress.comLegal System – Malaysia Malaysia is a Commonwealth country which got its independence from Britain in 1957. The legal system of Malaysia has its origin

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Litigation

Case Overview

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN SIVIL)

GUAMAN SIVIL NO.: S-22-94-2010

ANTARA

LOGICAL OPERATIONS CONSORTIUM SDN BHD

(NO. SYARIKAT: 394720-X) PLAINTIF

DAN

1. ABDUL RAHIM BIN ABDUL RAZAK

(NO. K/P: 600915-07-5393) DEFENDAN

2. SILVERLAKE SYSTEM SDN BHD

(NO. SYARIKAT: 182899-W) DEFENDAN

(English version)

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(CIVIL DIVISION)

CIVIL SUIT NO.: S-22-94-2010

BETWEEN

LOGICAL OPERATIONS CONSORTIUM SDN BHD

(COMPANY NO.: 394720-X) PLAINTIFF

AND

1. ABDUL RAHIM BIN ABDUL RAZAK

(IC NO.: 600915-07-5393) DEFENDANT

2. SILVERLAKE SYSTEM SDN BHD

(COMPANY NO.: 182899-W) DEFENDANT

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Parties

Logical Operations Consortium Sdn. Bhd. (LOC) 394720-X (Plaintiff)

Mr. Abdul Rahim Bin Abdul Razak (Rahim) Assistant General Manager (till early 2008) Bank Islam Card Centre Bank Islam (Defendant 1)

Silverlake System Sdn. Bhd. (Silverlake / SL) 182899-W (Defendant 2)

Referenced Principal Entities/Persons

S. V. Narayanan, Ph.D. (SVN) Managing Director Logical Operations Consortium Sdn. Bhd. (LOC)

Mr. Razak Mohd Mazlan (Razak) Senior Vice President Silverlake

Mr. Udhaya Kumar (Uday) Consultant for LOC Credit Card Operations

Mr. Goh Peng Ooi (Goh) Executive Chairman Silverlake

IICS Operations Sdn. Bhd. (IICSO) 785751-M

Mr. Chee Chin Leong (Chee) President Business Alliances Silverlake

Mr. Andy Ng Kek Seng (Andy) President Finance Management Marketing Support Silverlake

Ms. Koon Yin (Koon Yin) Silverlake

Mr. khairil bin Hamzah (khairil) Bank Rakyat (formerly with Bank Islam)

Mr. Michael Choong (Michael) Silverlake

Mr. Md Hidzir Bin Adam (Hidzir) Associate of Rahim

Ms. Liana Sari Binti Hafizar (Liana) Associate of Khairil

BANK KERJASAMA RAKYAT MALAYSIA BERHAD

(Bank Rakyat / BR)

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Solicitors

For Plaintiff

MESSRS S. S. TIEH (SST)

Solicitor

Mr. S. S. Tieh (Tieh)

For Defendant 1 (Rahim)

Rashid Zulkifli (RZ)

Solicitor

Mr. Abdul Rashid (ABR)

For Defendant 2 (Silverlake)

Raja, Darryl & Loh (RDL)

Solicitor

Mr. H. L. Choon (HLC)

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L0. Overview

December 2008 – May 2017

Once I had decided to file a lawsuit against Rahim and Silverlake, the first thing I did

was to freeze all new project commitments for LOC.

Around December of 2008, I started putting together a high-level write-up on the

events that took place between September 2006 and August 2008.

Compilation

It took LOC about 5 months to compile all the relevant documents and to string

together the events between September 2006 and August 2008.

The sources were:

• Emails stored in several machines belonging to Uday and me.

• Personal diary kept by me (specifically for meetings)

• Hardcopy documents kept by Uday and me

Several discussion sessions between Uday and me were necessary to arrive at the

purpose of meetings and meeting durations.

Most of the emails were compiled using Microsoft OneNote, while a sizable portion

was treated individually.

In the end, there were over 270 documents (emails, emails with attachments, other

documents not transmitted by email) spanning the period 30 September 2006 till 13

May 2008.

The following table lists the major case milestones:

Date Milestone

1 June 2009 Letter of Demand

3 February 2010 Writ of Summons, Court Case - registered at the Kuala Lumpur High Court

4 May 2012 Mediation

8 June 2012 Appointment of 1st Judge (letter from the Kuala Lumpur High Court dated 08.06.2012 requesting counsels to appear before Justice Datuk Lau Bee Lan for case management on 22.06.2012 at 2.45 p.m.)

23 July 2013 Appointment of 2nd Judge (letter from the Kuala Lumpur High Court dated 23.07.2013 informing counsels that the case has been transferred to Justice Puan Siti Khadijah Bt S. Hassan Badjenid)

6 November 2013 Trial – First session

26 February 2015 Trial – Last session

30 September 2016 Trial Judgment

15 May 2017 Appeal Hearing

15 May 2017 Appeal Judgment

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Note: Officially, on 22 February 2016, Silverlake System Sdn. Bhd. had

legally changed its name to TIMURAN SINAR SDN BHD.

This information was confirmed after a new search report on Silverlake

System Sdn. Bhd. was obtained from the Companies Commission of

Malaysia.

L1. Initial Letter of Demand

The initial letters of demand to Rahim and Silverlake were sent by registered post to

them via SST's letters of demand dated 1 June 2009. As expected, both Rahim and

Silverlake rejected the claim made in the letters of demand.

There were a few back-and-forth correspondences between Tieh and the attorneys

for Rahim and Silverlake.

Further to these, Tieh had prepared the Writ of Summons and Statement of Claim.

L2. Court Case - Filing

Legal System – Malaysia

Malaysia is a Commonwealth country which got its independence from Britain in

1957.

The legal system of Malaysia has its origin in the English legal system, with

additional influence from other Commonwealth countries in the region, namely,

Australia and India.

There are essentially three levels of courts in the Malaysian legal system, in addition

to:

Subordinate Courts - These comprise the Magistrates' and Sessions Court.

They are:

• High Courts

• Court of Appeal - Appeals arising from the High Courts are handled by the

‘Court of Appeal.’ In general, the escalation to the Court of Appeal is a

relatively feasible process for the party which feels that the “grounds for

Judgment’ at the High Court level justifies an appeal.

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• Federal Court - The ‘Federal Court’ is the supreme court. It is the final court

of appeal. Escalation to the Federal Court after the judgment at the Court of

Appeal is somewhat tight, both in terms of time constraint and procedures.

This is done to minimize/eliminate frivolous escalation.

The Court of Appeal and Federal Court are commonly referred to as the appellate

courts.

Although the court proceedings are primarily conducted in Bahasa Melayu (BM),

English is also commonly used, if the situations warrant it.

LOC’s case against Rahim and Silverlake was filed with the High Court in Kuala

Lumpur (Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur) and registered by the

High Court Registry on 3 February 2010.

The documents filed with the court are listed in the main page of this case report and

links to them are also provided at the end of the same.

L3. Case management

Several Deputy Registrars (akin to a "Case Manager") were assigned to this case by

the court. Several meetings ("case management hearings") took place over the next

few months, attended by Tieh (Plaintiff’s attorney.) Attorneys for the two defendants

attended most, if not all, of these sessions.

L4. Mediation

On 30 November 2011, counsels were instructed to obtain instructions for a court

mediation between the Plaintiff and the two defendants.

As scheduled, the parties met on 4 May 2012 at the KL Court Mediation Center.

KL Court Mediation Center

4 May 2012

3 PM meeting

The mediator first met with the lawyers for the plaintiff and the two defendants for

about 10 minutes and then asked to meet with the plaintiff and the defendants

without the lawyers.

In attendance were:

LOC: SVN

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Defendant 1: Rahim

Defendant 2 (Silverlake): Andy, Chee, Razak.

The mediator started off by explaining his rules. The session would not involve any

technical discussions or any of the evidence documents. He wanted the parties to

state their cases with a chance for rebuttal.

I went first and described the highlights of the events from September 2006 till

middle of 2008.

Rahim went next and started speaking in Bahasa Malaysia (BM.) I requested to

bring in Tieh, LOC’s counselor, to translate. The mediator said that he would let me

know what was said by Rahim. At the end of Rahim’s statement, the mediator chose

not to translate what was said by Rahim.

Finally, when it was Silverlake’s turn, Chee and Andy took turns to stress

(i) that LOC was only selling their services,

(ii) that LOC’s business case/models were too simplistic and unrealistic, and

(iii) that LOC was not co-operative, was too demanding, and did not want to

assume any liability,

Throughout the session, Razak did not open his mouth.

I was then asked by the mediator to rebut.

Since the mediator had not translated what was said by Rahim, I could not rebut

Rahim’s ‘case.’

Since the mediator did not allow the use of the evidence documents, I could not get

into details and, hence, restricted myself to a high-level response. Additionally,

when I mentioned that LOC came in to the Project at the request made by Rahim

and Razak, Andy waved this off as though Razak was persona non-grata.

Finally, it became obvious that the session was well-orchestrated. Since the

mediator had informed earlier that the parties could terminate the session at any

time, I took him up on that offer and put the kibosh on the mediation session.

Note: For those who may have read “The Rainmaker” (1995) by John

Grisham (or seen the movie of the same name), the thematic similarity

between (i) this mediation session and (ii) the informal meeting involving the

lawyers (for the plaintiff and the defendant) and the Judge (towards the end of

chapter 23 of “The Rainmaker”) may be striking.

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L5. First Judge

Finally, a trial judge (Justice Datuk Lau Bee Lan) was appointed to this case on 8 June

2012. There were a few case management hearings held by the trial judge with

attorneys for all three parties.

L6. SL’s Annual Reports

In one of these sessions, RDL gave Tieh annual reports of Silverlake System S/B

and ‘Silverlake Infrastructure & Logistics S/B’ for the year 2011 to show that they

were not making any profit.

Note: Sometime after 2008, Silverlake had transferred the BR Card

Operations to Silverlake Infrastructure & Logistics S/B (SIL), which had been

a dormant company within the Silverlake group.

Although these documents were in the ‘public domain,’ I had not seen them before.

It is worth pointing out that whether SL made any profit or not, after hijacking the

‘card operations,’ was not relevant for the following reasons:

• The projections of ‘card operations’ revenue and profit made by LOC were

what LOC would have realized, if LOC had been in charge of (and running)

the operations.

• The idea of using ‘profit’ to show company performance has been abused

(especially in cases involving profit-sharing, royalties, etc.) in several

industries for several decades. It is easy and a common practice to show

smaller profits (or even losses), even if the expected revenues are realized

(creative accounting.)

Nevertheless, since I had personally done ‘financial forensics’ in the past, I was

curious and went through the annual reports supplied by RDL.

The following table lists relevant cost components for the years ending 2011, 2010

and 2009 for Silverlake Infrastructure & Logistics S/B.

LOC had obtained the annual reports for years 2009 and 2010, from Malaysia’s

federal agency, for a nominal fee.

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Item 2011 2010 2009 Note

Revenue (card operations)

18,803,554 14,740,301 8,537,909

Cost of Sales 12,050,809 9,277,145 7,789,831 2010: Includes “other Expenses” of 5,308,021 2009: Includes “other Expenses” of 5,330,258

10,182,132 2010 COS revised in 2011 filing

Admin Expenses 2,704,083 5,559,940 4,298,006 2010: Includes “other Expenses” of 2,829,369 2009: Includes “other Expenses” of 2,249,053

2,430,836 2010 “admin Expenses” revised in 2011 filing

Other Expenses 3,313,086 This category is separated from COS and “Admin Expenses” for year 2011

2,184,206 2010 “Other Expenses” revised in 2011 filing

• The annual reports do not list the cost components for “Cost of Sales”

• The annual reports do not list the cost components for “Admin Expenses”

• The annual reports do not list the cost components for “Other Expenses”

1. Instead, the “loss from Operations” for the year 2011 is explained by some of

the costs, namely,

➢ Staff costs (6,303,415, including 295,680 for Director’s remuneration) ➢ Depreciation (1,659,970) ➢ Credit Card Fraud Provision (637,081) ➢ Office Rental (506,939) ➢ HP Interest (383,301) ➢ Lease Rental (214,496) ➢ A few other small items,

2. These costs account for about a little over 10 million.

3. “Cost of Sales”, “Admin Expenses” and “Other Expenses” in the annual report, for 2011, add up to a total expense of about 18.07 million.

4. The unexplained expenses claimed by SIL S/B thus is over 8 million.

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5. These may include “license fees paid to the Holding Company,” marketing expenses and other such items, most of which would NOT have been expenses for LOC/IICSO.

6. The total revenue for 2011 (18,803,554) is in fact more than what LOC’s

projections were.

Actual Revenue (2011) for SIL: 18,803,554 May 21 2007 financials (LOC’s projections for 3rd year)

Interchange Fee from Acquirer 7,357,824

Cash Withdrawal Fee 10,346,940

Other Income 1,226,304

Less: (Card Association Charges & Fees) (4,193,960)

Total Revenue from BR to SL 14,737,108

Note: The holding company in Bermuda was given 90% of SIL’s equity for

a relatively small sum. So, effective February 2012, SIL (the company in

charge of Bank Rakyat’s outsourced card operations) was 90% foreign-owned

and 10% Goh-owned and, hence, 0% BUMI (a Malaysian term used to

indicate a certain segment of its citizenry.)

See Attachment L1 for a copy of Page 3 in the annual report for SIL

(financial year ended 31 December 2009) wherein Silverlake Outsourcing Ltd

(a company registered in Bermuda) is identified as SIL’s Holding Company, in

the highlighted paragraph.

See Attachment L2 for a copy of Page 2 in the annual report for SIL

(financial year ended 31 December 2012) wherein Silverlake Outsourcing Ltd

(the holding company.in Bermuda) is shown to be given 90% equity in SIL for

MYR 900,000, in the highlighted paragraph.

7. Silverlake has had prior experience in tax audits. Silverlake System S/B had

been ‘investigated’ (audited) for a period covering a few years and asked to

pay about RM 5M because of ‘disallowed expenses’ (annual reports.)

This translates, based on the marginal corporate tax rate of about 25%, to

about RM 20M of the expenses being deemed NOT related to the core

business.

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See Attachment L3 for a copy of Page 23 in the annual report for Silverlake

System Sdn Bhd (financial year ended 30 June 2011) for a highlighted

description.

L7. New Judge

On 23 July 2013, Tieh was informed by the court that the case would be handled by a

different trial judge, namely, Siti Khadijah Binti S. Hassan Badjenid.

L8. COURT TRIAL

Prior to the court trial, the attorneys for the three parties provided a list of witnesses

they would produce during the trial.

The Plaintiff’s original witness list included

➢ S. V. Narayanan (SVN) ➢ Udhaya Kumar (Uday) ➢ Khairil bin Hamzah (khairil) ➢ Md Hidzir Bin Adam (Hidzir) ➢ Liana Sari Binti Hafizar (Liana)

Khairil, Hidzir and Liana were brought into IICSO by Rahim and, hence, their

testimony was relevant. So, Tieh had sent (by personal service) subpoenas for them

to appear in court. Khairil and Liana accepted their respective subpoena. Hidzir,

however, avoided several attempts by Tieh to have the subpoena delivered to him.

In the end, Tieh obtained a court Order dated 4 January 2013 to serve the subpoena

on Hidzir and this included an order to advertise in a local newspaper information

about the case (both the notice of the writ and Order dated 4 January 2013) (a

formal procedure in Malaysia.) A scanned copy of this notice (in Bahasa Melayu) in

‘The Star’ dated 8 March 2013 is provided in Attachment L4.

The court trial started on 6 November 2013.

There was an agreement reached before the trial started that the whole proceedings

would be conducted in English (for my benefit) and not in Bahasa Melayu (BM.)

Official “Witness Statements” (W.S.) were filed by the four witnesses: SVN, Uday,

Rahim and Razak (In the then-current court procedures, witnesses were required to

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provide the court and the attorneys for all the parties ‘witness statement’, written in

the question-answer format, in lieu of the ‘examination by own attorney’.)

Note: Rahim changed his W.S. twice during the trial. Both 2nd and 3rd versions were

written in BM and not in English. His first W.S. was given just before the trial started.

He withdrew the same and issued another version (in BM) on or about 9 December

2014. He withdrew the second version on or about 6 January 2015 and issued a

third version of his W.S. (also in BM) on the same day.

Rahim also opted to have his cross-examination and re-examination conducted in BM.

In addition, the following documents (exhibits) were officially filed and acknowledged.

Note: The dates in the following table use the ‘dd.mm.yyyy’ format.

Bundle Content

B1 Pages 1-400 -Initial correspondences between SST and RDL/RZ, -Evidence documents provided by LOC

B2 Pages 401-800 -Evidence documents provided by LOC








B10 Pages 3601-3958 -Evidence documents provided by LOC -Billing Details (IICSO to SL)-Tech Documents & UAT -PROFIT FORECASTS FOR IICSO -DIARY SVN 2006 -DIARY SVN 2007 -PROPOSAL FOR PRE-OPERATIONS CONSULTANCY SUPPORT FOR BANK RAKYAT'S CREDIT CARD OPERATIONS- between IICS Operations Sdn Bhd and the 2nd defendant -Costing Basis-RM992,187.53 -Summary of LOC's Charges: Two Concurrent projects for Silverlake

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System Sdn Bhd (Bank Islam Projects) - 22.10.2007-"Consumer/Commercial Tawaruq (Operations Manual & UAT)" between the plaintiff and the 2nd defendant -22.10.2007-"System testing for Tiered-Rate Profit Charges (UAT)" between the plaintiff and 2nd defendant -Name cards of Andy Ng Kek Seng, Chan Ying Ling, Chee Chin Leong and Razak Mohd Mazlan -1.6.2009- Letter of demand from SST to the 1st defendant (D1) -1.6.2009- Letter of demand from SST to the 2nd defendant (D2) - 15.6.2009- Letter from the 2nd defendant (D2) to SST - 26.6.2009- Letter from Messrs Raja, Darryl & Loh ("RDL") to SST - 14.7.2009- Letter from SST to RDL - 2.9.2009- Letter from RDL to SST - 22.8.2007- Form 9 Companies Act 1965 IICS Operations Sdn Bhd ("IICSO") - 14.2.2008- Form 44 IICSO - 4.9.2007- Form 49 IICS - 4.9.2007- Form 24 IICS - 17.6.2008- Form 49 IICS

Additional documents were provided by the parties just prior to the start of the trial or

during the trial. They are:

• B11. Provided by LOC – Invoices issued by IICSO to SL and Payment Vouchers

issued by SL.

• B12. Provided by SL – Company search on IICSO, Annual Reports of LOC for 3

years (ended 31 August 2010, 31 August 2011, 31 August 2012, respectively)

• B13. Provided by LOC – Documents relating to IICS, IICSO transfer of ownership.

• B14. Provided by SL – Documents supporting Razak’s Saudi Arabia trip, Leave

application forms and travel documents.

• Exhibit D302. Provided Rahim – Reappointment letter issued by Bank Islam to Rahim

dated 3 March 2006.

The court proceedings were recorded by the court’s audio system (“CRT”), and the

transcripts were made available to the counselors. These transcripts also

constitute court documents.

➢ All these documents are now in ‘public domain.’

➢ Copies of all these court documents are available from the Court for a

fee.

➢ However, the main page of this ‘case report’ provides links to digitized

versions of all these documents [including the court proceedings

transcripts and the Witness Statements of SVN, Uday, Razak and

Rahim (three versions)].

The trial ended with a final session on 26 February 2015, with the 20th session.

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L9. Trial Judgment

Tieh was also informed later that this trial judge had been transferred to a nearby

state (Melaka). Nevertheless, on 26 September 2016, Tieh was informed that the

verdict would be delivered at the KL court on 30 September 2016.

The trial judge’s verdict was transmitted to me (SVN) by Tieh, via an email dated 30

September 2016. The contents of this email are reproduced below.

Dear Dr. Narayanan, 1. The honourable court allowed the plaintiff's claim against the 2nd defendant as follows:- a. RM2,005,687.50; b. interest at the rate of 5% per annum on RM2,005,687.50 from the date of judgment until full settlement; c. costs of RM40,000.00 to be paid by D2 to the plaintiff; and d. Allocatur of 4% on RM40,000.00 (which comes up to RM1,600.00) to be paid by D2 before the sealed Judgment is extracted. This sum of RM1,600.00 will go to the court. 2. The honourable court dismissed the plaintiff's claim against D1 and ordered the plaintiff to:- a. Pay costs of RM10,000.00 to D1; and b. Pay Allocatur of 4% on RM10,000.00 (which comes up to RM400.00) before the sealed Judgment is extracted. This sum of RM400.00 will go to the court. 3. The plaintiff's claim for RM16 million against both defendants was not allowed. 4. The learned Judge did provide her written grounds of judgment (in Bahasa Melayu). She did not read this out in open court this morning. Attached herewith is a copy of the same, for your attention. 5. I have not had a proper chance to go through the grounds. 6. I will go through the grounds and come back to you. 7. D1 was represented by Puan Wan Norizzati this morning. I was informed that Encik Rashid is overseas.

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8. D2 was represented by Miss Elaine Siaw and Miss Magdalene. 9. I met Mr. Choon Hon Leng from RDL outside the court. I informed him of the court's decision. His response to me was that D2 will be appealing against the judgment. An appeal against this morning's decision to the Court of Appeal must be filed within 1 month from today. 10. I will come back to you either later tonight or early tomorrow morning with my advice on the next step. Thank you. Kind regards, Tieh

A detailed ‘Grounds of Judgment’ was provided by the court on 7 December 2016.

The main page of this ‘case report’ provides a link to digitized file of the ‘grounds for

judgment’.

File Name: Grounds of Judgment-High Court (English translation)

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L10. Appeal

LOC decided to appeal the High Court decision on its case against Rahim (1st

defendant) and the High Court decision on the second component of LOC’s claim.

“The gist of the ground of LOC’s appeal with regards to the disallowed

loss of profit is that the learned trial judge erred when she held that the

said claim was based on projections alone unsupported by any

evidence.

The learned judge so erred because first, the Malaysian courts have

consistently held that a loss of profits claim based on projections alone is

allowed and finally, the loss of profit claim was supported by the source

document adduced during the trial which had remained substantially

unchallenged during the trial and which Razak had conceded during his

cross-examination that D2 had never objected to the projections/financials

prepared by LOC (which included the source document).”

Simultaneously, Silverlake (2nd defendant) also decided to appeal the High Court

decision on the first component of LOC’s claim.

Tieh then set about coordinating with the ‘Court of Appeal’ case manager (Deputy

Registrar) all the necessary activities. Documents were filed by all parties, per court

requirements and procedures.

L11. Appeal Judgment

The Appeal hearing/judgment was scheduled for 15 May 2017. This was attended

by only the attorneys for the three parties.

The three judges moved up the schedule for our case to the first slot in the morning

and finished the whole process in about 2 hours. The court first dealt with

Silverlake’s appeal and after a short break, heard LOC’s appeal. After another short

break, the judges came back with a verdict.

The verdict by the Court of Appeal was transmitted to me by Tieh via an email dated

15 May 2017. The contents of this email are reproduced below.

Dear Dr. Narayanan and Udhaya,

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1. On 15.05.2017, the Court of Appeal dismissed your appeal and allowed D2's appeal. 2. The court has also ordered the following:- a. LOC to pay D1 costs at the Court of Appeal of RM40,000.00; b. LOC to pay D2 costs at the Court of Appeal and high court of RM80,000.00; c. The stakeholding sum is to be released to D2; d. Deposit for both appeals to be refunded. 2. No reason was given for the decision. 3. May we meet this Wednesday in my office at 2.00 p.m. to discuss the next step? 4. The deadline for the next step must be completed within 1 month from 15.05.2017. Thank you. Kind regards, Tieh

In the Malaysian Court system, a case can be escalated from the Court of Appeal to

the Federal Court. However, escalation to this level first requires applying for and

obtaining a ‘leave’ from the Federal Court within one month from the date of

judgment by the Court of Appeal. Once the ‘leave’ is granted by the Federal Court,

the parties are then required to submit the full appeal package within a certain period

thereafter, including the ‘grounds of appeal’ from the judges.

In our case, no reason was given for the decision (see the highlighted item in the box

above), making it impossible to escalate any further. Without the grounds of

judgment from the Court of Appeal being made available for us to identify the

reasons for their decision of 15 May 2017 within the 1-month deadline, it was

extremely difficult to draft a proper ‘leave application’ to the Federal Court satisfying

the relevant legal requirements.

Additionally, the ‘’Court of Appeal’ judges are not obligated to provide ‘grounds of

appeal’ if the case is not escalated further.

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However, I was interested in having the reasons (grounds) for the judgment on the

Plaintiff’s appeal at the ‘Court of Appeal’, even though I was not going to escalate it

further.

Tieh made a request for the same on 30 May 2017 via letters dated 29 May 2017.

A second request was made by him on 6 July 2017 via letters dated 4 July 2017.

A third request for the Grounds was made by Tieh on 28 August 2017. The following

email from Tieh to me is referred.

26 august 2017

Dear Dr. Narayanan and Udhaya, Attached herewith are copies of my firm's letters dated 28.08.2017 to the Court of Appeal judges requesting for the grounds of judgment, for your attention and safekeeping.

These letters were sent on 28.08.2017.

Thank you. Kind regards, Tieh

Attachment L5 is a reproduction of the letter from Tieh to the Court of Appeal (one

each to the three judges) sent on 28 August 2017.

Finally, Tieh got a call from the Court of Appeal on 11 September 2017 informing him

that the ‘Grounds of judgment’ was ready. Tieh picked up the same on 13

September 2017. The following is an email from Tieh to me regarding this.

13 sept 2017

Dear Dr. Narayanan and Udhaya, On 11.09.2017 (Monday), I received a telephone call from the personal assistant ("PA") to one of the Court of Appeal judges who heard the appeal informing me that the grounds of judgment is ready for collection. Attached herewith is a copy of the court's letter for your attention. On 13.09.2017 (Wednesday), I collected the said grounds of judgment from the PA. Attached herewith is a copy of the grounds, for your attention.

The grounds has been prepared in English. I have not studied the grounds in detail. Please give me a few days to do so.

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Thank you. Kind regards, Tieh

The file containing the ‘grounds’ is provided through the link in the main part of this

case report under the section titled “Litigation.”

File Name: Grounds of Judgment-Appeal Court

On 28 September 2017, I received the following from Tieh.

Dear Dr, Narayanan and Udhaya,

Below are my main comments with regards to the aforesaid judgment:- 1. It does not appear that the Court of Appeal studied the appeal file in detail for the following reasons:- a. At paragraph [12] of the judgment (page 5), the court referred to "Rajendran" as working together with Udhaya when in fact it is SVN who worked with Udhaya. b. At paragraph [15] of the judgment (page 6), the court stated that the civil action was filed at the High Court in Malacca when in fact it was filed in the Kuala Lumpur high court. c. At paragraph [18] of the judgment (page 7), the court stated that the trial judge did not

make a specific finding that D1 personally benefitted from the project. This is incorrect as the the trial judge in her judgment did make a specific finding that the procurement of the BR project will benefit all parties including D1. The trial judge in her judgment went further to make a specific finding that D1 had all the relevant reasons to act in the best commercial interest of D2. d. At paragraph [19] of the judgment (page 7), the court noted that the plaintiff did not plead in the statement of claim ("SOC") that the consultancy services were in fact done for D1 and that there was no evidence led by the plaintiff to show that D1 benefitted from the project. This is incorrect as first, paragraph 12.7 of the SOC clearly pleaded that the business procurement services were provided to D1 and/or D2 and secondly, the trial judge in her judgment did make

a specific finding that the procurement of the BR project will benefit all parties including D1. e. At paragraph [22] of the judgment (page 9), the court observed that in the SOC, the representations were specifically alleged to have been made by D1 whilst only general assertions of representations were made against D2. This is incorrect as first, in paragraph 13 of the SOC, it was pleaded that the material representations were made by D1 and/or D2 to the plaintiff and secondly, the trial judge in her judgment made a specific finding that D2 did support the representation made by D1. f. In paragraph [23] of the judgment (page 9), the court observed that the plaintiff did not plead that it was appointed by D2 to undertake the consultancy services and that there was no evidence at trial to support it. This is incorrect because the trial judge in her judgment made a

specific finding that there was sufficient evidence to show that there was a binding intention among the 3 parties in an unwritten "alliance" agreement to procure the BR project which would benefit all 3 parties. g. In paragraph [24] of the judgment (page 9), the court observed that the consultancy services rendered was for the plaintiff's own benefit. This is incorrect as the trial judge in her judgment had specifically found that the alliance in procuring the project for D2 would benefit all 3 parties.

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h. In paragraphs [25] and [29] of the judgment (pages 9 and 11), the court observed that the consultancy services were intended to be gratuitous. This is incorrect as first, the trial judge had found that both D1 and D2 knew that the services rendered by the plaintiff was not gratuitous and secondly, evidence was led through Udhaya (during his cross-examination by RDL) that Chee had "assured" Udhaya the plaintiff's services will be paid.

i. In paragraphs [33] and [34] of the judgment (pages 13-14), the court observed that there was no evidence led as to what would be a reasonable fee for the consultancy services rendered and that the only justification forwarded by the plaintiff was a single sheet of paper containing tables drawn up by the plaintiff stating the amount of time spent with hourly rates of RM625.00 and that the trial judge had rejected the evidence as being inadmissible because it shows no proof of time entries and hours spent on work done and contains no justification to support the unilateral hourly rate of RM625.00 or any rate . This is incorrect as first, Udhaya did give evidence that the usual rate is RM625.00 and that this rate is in fact "cheaper" than a usual rate for such a project, secondly, the source documents to support the business procurement services were still before the high court and thirdly, the trial judge rejected the single sheet of paper on the basis of Section 73A of the Evidence Act.

j. In paragraphs [36] to [38] of the judgment (pages 14-15), the court observed that the trial judge was correct in ruling that the plaintiff's claim for loss of profits ("LOP") was unsubstantiated and that the plaintiff's projections of LOP was based on a single sheet of document known as "profit forecasts for IICSO". This is incorrect as the plaintiff did adduce the source document for LOP which remained substantially unchallenged during the trial and which Razak conceded during his cross-examination that D2 had never objected to the projections/financials prepared by the plaintiff which included the source document. k. In paragraphs [40] to [42] of the judgment (pages 15-16), the court observed that the high court in its judgment held that the representations were made by D1 and not by D2, that the plaintiff's assertions on the representations were directed at D1 and not D2 and that it remains unclear as to what are the specific representations made by D2 to the plaintiff. This is incorrect

because first, the trial judge in her judgment did make a specific finding that D2 did support the representation made by D1, secondly, in paragraph 13 of the SOC, the plaintiff did plead that the material representations were made by D1 and/or D2 and thirdly, the material representations are clear as pleaded in paragraph 13 of the SOC. l. In paragraph [43] of the judgment (page 16), the court observed that IICSO would be the party having the right of action to claim for LOP. This is incorrect as the legal position is that the party to whom the representations were made is the proper party to initiate the action. m. In paragraph [45] of the judgment (page 16), the court observed that there was no agreement between parties as to the terms of the sub-contract. This is irrelevant as first, the

trial judge in her judgment did find that there was already in place a strategic alliance between the parties from the initial stages, secondly, evidence was led during the trial that D2 was already treating the plaintiff/IICSO as its sub-contractor (example:- The plaintiff led team for the operations was to be based at Wisma Bandar even in the absence of a signed dub-contract) and thirdly, insofar as the sub-contract was concerned, the only "missing piece" was the signed contract between BR and D2. 2. The Court of Appeal appeared to have failed to consider LOC's submissions at all. 3. The Court of Appeal only appeared to have considered D1 and D2's submissions. Thank you.

Kind regards, Tieh

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Attachment L1 Page 3 of Annual Report

Financial Year Ended 31 December 2009 Silverlake Infrastructure & Logistics Sdn. Bhd.

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Financial Year Ended 31 December 2012 Silverlake Infrastructure & Logistics Sdn. Bhd.

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Financial Year Ended 30 June 2011 Silverlake System Sdn. Bhd.

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Attachment L4 ”The Star” (Malaysian Newspaper)

8 March 2013

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Attachment L5 Letter from Tieh to the Court of Appeal Judges

3rd Request for “Grounds of Judgment” 28 August 2017

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