(1) This is an appeal against the decision of the learned judge of the Kuala Lumpur High Court given on 30 September 2000 allowing the respondent’s claim against the first appellant which decision indirectly affects the interest of the second appellant. However, the second appellant was not made party in the action before the learned judge.

(2) The facts are simple. By a written agreement dated 27 November 1980 entered into between the respondent and the first appellant (‘the principal agreement’), the respondent agreed to sell and the first appellant agreed to buy all the issued share capital in the two companies of which the respondent had beneficial interests. The total purchase price was stated to be RM206,252,345. The first appellant paid RM196,252,345 towards the total purchase price leaving a balance of RM10m unpaid and remained in the hand of the first appellant. The reason for that was because the respondent through its representative, the late Mr Chang Ming Thien, proposed to set up a charitable foundation to the extent of the amount short paid to be called ‘Chang Ming Thien Foundation’ (‘the Foundation’