Abdul Hamid Mohamad JCA:

By a writ action No. D3-22-1033-91 H. Rosen Engineering B.V. ("Rosen") sued Ventura Industries Sdn. Bhd. ("Ventura") claiming for payment of a sum of RM423,000, interest and costs. That amount was for the balance that Ventura should pay Rosen under an Agency Agreement dated 1 August 1989 between them. On 28 May 1992 Rosen obtained a summary judgment against Ventura under O. 14 of the Rules of the High Court 1980("RHC 1980").

On 28 December 1995 Rosen took out an Originating Summons No. D2-24-432-95 against Siow Yoon Keong, the appellant in this appeal. Rosen sought, in brief:

(a) A declaration that the business of Ventura had been carried out with intent to defraud the creditors of Ventura, especially Rosen or for a fraudulent purpose;

(b) A declaration that the appellant was knowingly a party to the carrying on of the business of Ventura in that manner and shall be personally responsible, without any limitation of liability, for the debt or other liabilities of Ventura to Rosen.

(c) An order that the appellant pays to Rosen the balance sum of RM423,000 together with interest for which a judgment had been obtained by Rosen against Ventura.

On 11 April 1996, on the application of the appellant, it was ordered that the originating summons be proceeded as if it was commenced by a writ action and that the affidavits therein filed be treated as pleadings.

However, on the date fixed for hearing the parties, by consent, agreed as follows:

All the documents in Bundle "A" and "C" are agreed documents, but not the contents therein.

As for bundle "B" - all the affidavits do stand as pleadings and the exhibits are agreed documents except "CB7" at page 101-104; the certified copy of which is in Bundle "C" at page 6-14.

After a short adjournment at the request of both counsel, further agreements were reached by them. The record shows as follows:

Court:

At the request of both counsels; the matter was adjourned for 20 minutes to agree on the facts and to decide if the calling of witnesses as (sic) necessary! It has been decided that Bundle "B" all the facts stated in the affidavits are agreed facts.However, all the allegations in the affidavit are denied. Further any state of mind stated in the affidavits are also denied. In addition the following facts are agreed upon:

(i) It was the defendant who had negotiated the deal with Petronas Gas Sdn. Bhd.;

(ii) Some of the proceeds of the Petronas contract was used to buy the shares;

(iii) After the shares sold, the proceeds of sale were used to pay the defendant RM523,248/ and the amount then due to the plaintiff was RM423,000. The sum of RM523,248/ was the amount under loan made by the defendant to his company by Mr. Siow Yoon Keong who is a Director in charge of the management. There were then two other directors - namely the defendant's wife Phoon Ching Heong - without any shareholding in the company - except as a Director. The other Director was Tuan Bidari bin Tan Sri Datuk Mohd, with 120,000 shares. The defendant had 80,000 shares.

(iv) The defendant never informed the plaintiffs; and the plaintiff never knew at all material times about the transactions relating to the shares.

In view of these agreed facts, both counsels have now agreed not to lead any further evidence but shall submit their case.

So, no oral evidence was led. Both counsel made their respective submissions.

On 16 November 1996 the learned Judicial Commissioner (as he then was) made the following order:

(1) That the defendant do personally pay the plaintiffs the balance sum due and owing under the Judgment dated the 28th day of May 1992 obtained by the plaintiffs against the Company - (Ventura Industries Sdn. Bhd.) videKuala Lumpur High Court Suit No. D3-22-1033-91 in the sum of RM392,479.81 together with all interest thereon at the rate of eight per cent per annum calculated from the 23rd of March 1993; until the date of full realisation by the plaintiffs from the defendant herein; together