The Plaintiff Topclass Access Sdn. Bhd. filed this Originating Summons, (O.S) on 7th March 2008. By this O.S, the Plaintiff seeks several declaratory and consequential orders. The O.S is supported by several affidavits affirmed by Lee Suet Hong and Dr. Tan Boon Nunt, Directors of the Plaintiff. The declaratory prayers sought by the Plaintiff are hotly disputed by the Defendant.

The brief facts of this case are that the Plaintiff opened a Central Depository System ("CDS") Account with the Defendant stock broking company bearing account number 057-046-057147 (the account) on 29th May 2007. The opening of this account is evidenced by the opening notice issued by Bursa Malaysia Depository Sdn. Bhd. to the Plaintiff. After the opening of the account, the Plaintiff deposited 15,000,000 shares of a public company known as Asia EP Berhad (Asia shares) into the account, the following day. The Asia shares were being traded at the Bursa Saham, at the material time. At or about the same time or shortly thereafter, the following events took place:-

a) The Directors and authorised signatories of the Plaintiff executed a document containing irrevocable instructions authorizing the Defendant to deposit the proceeds of sale of the Asia shares (once sold) into the Plaintiff's trust account, authorizing the Defendant to withdraw sums from the Plaintiff's trust account for payment of any outstanding amounts due on third party accounts (Exh. D6 to Enc. 4) (D6);

b) The Plaintiff applied to open a CDS nominee account on 11th July 2007, whereby M&A Nominee Tempatan Sdn. Bhd (M&A Nom), a nominee of the Defendant would be the account holder. The application form for the opening of the new nominee account was executed by the Plaintiff's Directors and authorized signatories including the deponents of the affidavits filed on behalf of the Plaintiff in this O.S;

c) This nominee account of M&A Nom was approved and opened on the same day bearing account number 057-002-046288239;

d) A transfer of security request form was executed by the Plaintiff's Directors and authorized signatories on 12th July 2007;

e) The Plaintiff transferred the shares from its account with the Defendant to the Defendant's Nominee M&A Nom on 12th July 2007 and

f) On 13th July 2007 the Bursa Malaysia Depository Sdn. Bhd issued the transfer notice directly to the Plaintiff, notifying the Plaintiff of the transfer of the Asia shares from the Plaintiff's account with the Defendant to the nominee account of M&A Nom.

The Defendant's case is that the Plaintiff's participation in the opening of the Defendant's nominee account in M&A Nom; the transfer of the 15,000,000 shares to the Defendant's account in M&A Nom and the execution of D6 was pursuant to an agreement between the Defendant's Commissioned Dealer's Representatives, one Pneh Tee Eong ('Pneh') and it, whereby the Asia shares were deposited as security for third party accounts to be operated by Pneh on the instructions of the Plaintiff's Directors and their representatives. The closeness of the relationship between Pneh and the Plaintiff's Directors is evident from the opening of personal accounts by the two Directors of the Plaintiff with the Defendant through Pneh, shortly after the Plaintiff had opened its account with the Defendant. The contents of Exhibit D6 enabled the Defendant to sell the Asia shares and utilise the proceeds to indemnify itself against all losses incurred by it when acting on the instructions of the Plaintiff, its Directors and their representatives. As far as the Defendant was concerned, the execution of the documents referred to earlier was consistent with the Plaintiff's intention that the Asia shares were to be used as security for losses in third party accounts. The Defendant relies on several undisputed mail massages, email exchanges and print outs recording minutes of meeting and telephone conversations between the Directors of the Plaintiff, its representatives and Pneh to refute th