Back
2025 MarsdenLR 6242
HIGH COURT MALAYA KUALA LUMPUR
TADMANSORI HOLDINGS SDN BHD & ORS – Appellant
Versus
DANCOM TELECOMMUNICATIONS (M) SDN BHD & ORS – Respondent
[Writ Summons No: WA-22NCC-332-05/2024]]
The court will not assist a party with unclean hands, and suits based on sham agreements to mislead financial institutions are subject to dismissal.
Headnote:(A) Rules of Court 2012 - Order 18 r 19 - Principles of striking out a suit - Court may strike out a suit if it discloses no reasonable cause of action or is scandalous, frivolous, or vexatious - Plaintiffs' claims were found to be based on sham agreements to mislead financial institutions, which the court would not condone. (Paras 1, 3, 48, 66, 100)
(B) Legal principles - "Ex turpi causa non oritur actio" and "in pari delicto" - The court will not assist a party who comes to court with unclean hands. (Paras 1, 66)
(C) Burden of proof - The burden is on the plaintiffs to demonstrate that the trio of considerations apply in cases of in pari delicto. (Paras 74, 76)
Facts of the case:
The plaintiffs filed a suit alleging that a Share Sale Agreement was a sham to mislead financial institutions due to the ongoing criminal proceedings against one of the plaintiffs. The defendants contended the sale was legitimate. (Paras 54, 58)
Findings of Court:
The court found that the plaintiffs' claims were frivolous and vexatious, and the suit was struck out. (Paras 100, 101)
Issues: The main issues involved whether the Share Sale Agreement was a sham and whether the plaintiffs could seek the court's assistance in light of their own wrongdoing. (Paras 54, 66)
Ratio Decidendi: The court ruled that the plaintiffs' admission of creating sham agreements precluded them from seeking relief, as the court does not assist those who engage in illegal acts. (Paras 66, 100)
Result: All five striking out applications were allowed with costs of RM 6,000.00 for each defendant.
[Striking Out Of Suit]
Introduction
[1] Courts will strike out a suit based on the principles of "let the loss lie where it falls" and in pari delicto when the parties are equally at fault in an illegal or immoral transaction. The courts act on the Latin maxim "Ex turpi causa non oritur actio", which states that no action arises from a dishonourable cause.
[2] The maxim in pari delicto ("in equal fault") can be displaced or moderated by three considerations commonly referred to as the "trio of considerations" first propounded in the English Supreme Court case of Patel v. Mirza [2016] UKSC 42 ["Patel"] and accepted by our courts.
[3] The above maxim and principles are relied on by the defendants in five separate applications filed by the five defendants here to strike out the plaintiffs' Writ and Amended Statement of Claim [Enclosure 6] pursuant to O 18 r 19(1)(a) and/or (b), (c) and (d) of the Rules of Court 2012 [" ROC 2012"]. [See encls 31 to 35].
[4] The Amended Statement of Claim [Enclosure 6] concerns a dispute in relation to a Share Sale Agreement.
[5] The three plaintiffs are all represented by Messrs Satha & Co The five defendants are all represented by Messrs Mohana Krishnan. The plaintiffs filed one common written submission and one common reply written submission. The defendants filed one common written submission and one common reply written submission.
[6] On 21 April 2025, I allowed all five striking out applications with costs of RM6,000.00 for each defendant subject to allocatur.
[7] Consequent to my striking out decision, I also set aside an ad-interim injunction [Enclosure 7] granted earlier by consent in favour of the plaintiffs with costs of RM10,000.00 subject to allocatur.
[8] On 15 May 2025, the plaintiffs filed six Notices of Appeal to appeal to the Court of Appeal against my striking out of their writ and Amended Statement of Claim and the setting aside of the ad-interim injunction. These are my grounds of judgment.
Background Facts
Parties
[9] The 1st plaintiff Tadmansori Holdings Sdn Bhd ["Tadmansori"] is a private limited company incorporated under the Companies Act 1965 having its registered address at Lot 6.06, 6th Floor, Semua House, Jalan Bunus 6, 50100 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur and business address at 23-2 Jalan Setiawangsa 9, Taman Setiawangsa, 54200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. Tadmansori is involved in the business of investment holding and provision of management services.
[10] The 2nd plaintiff Datuk Seri Utama Tengku Adnan Bin Tengku Mansor ["Tengku Adnan"] is the majority shareholder of Tadmansori. Tengku Adnan has held significant political and governmental positions, including being the former Secretary General of the United Malay National Organisation ("UMNO") political party and the former Treasurer General of the Barisan Nasional political alliance or coalition. Additionally, Tengku Adnan has been the former Member of Parliament for Putrajaya and had previously served as the Minister for Federal Territories from 16 May 2013 to 9 May 2018 and Minister for Tourism from 14 February 2006 to 18 March 2008 within the Government of Malaysia.
[11] The 3rd plaintiff Dato' Dr Tengku Rethwan Bin Tengku Mansor ["Tengku Rethwan"] is an individual with an address at 29, Jalan SS7/2, Kelana Jaya, 47301 Petaling Jaya, Selangor. Tengku Rethwan has been the director of Tadmansori since 2 May 1990. Tengku Rethwan is also a minority shareholder of Tadmansori.
[12] The 1st defendant Dancom Telecommunications (M) Sdn Bhd ["Dancom"] is a private limited company incorporated under the Companies Act 1965 , having its registered address at B-3-9, 3rd Floor, Block B, Megan Avenue II, No 12, Jalan Yap Kwan Seng, 50450 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur and business address at Wisma Dancom, Lot 5, Lorong 51A/227B, 46100 Petaling Jaya, Selangor.
[13] Dancom was formerly known as Riswell Enterprise Sdn Bhd., Danish Communication (M) Sdn Bhd and Dan
