JUDGMENT

Wan Muhammad Amin Wan Yahya J:

(Enclosure 15)

[1] This was an application by the Defendant ("BBMP") to strike out the Plaintiffs' (Zavarco and Zulizman) Writ and Statement of Claim both dated 15 August 2022 pursuant to O 18 r 19(1)(b) and (d) of the Rules of 2012 and/or the inherent jurisdiction of this Court ("this Application").

[A] Salient Background Facts

[2] The essential chronology of events is as follows:

The Original Facility And Suit 313

[3] On 28 June 2012, BPMB granted a Term Loan Facility of RM400 million ("the Facility") to Aries Telecoms (M) Berhad ("Aries") for developing a fibre optic network around Peninsular Malaysia. Zavarco provided a corporate guarantee whilst Zulizman provided a personal guarantee dated 17 April 2017 for the Facility.

[4] When Aries was conducting its listing exercise in the UK, it requested more time from BPMB. BPMB agreed and granted an extension pending the listing exercise, but in return required a corporate guarantee from Zavarco and a personal guarantee from Zulizman.

[5] On 26 July 2018, BPMB commenced Suit No WA-22NCC-313-07/2018 ("Suit 313") [Bank Pembangunan Malaysia Berhad v. Aries Telecoms (M) Berhad & Ors] against Aries, Zavarco and Zulizman for recovery of monies due under the Facility. On 23 August 2018, Aries, Zavarco and Zulizman filed their Defence and Counterclaim alleging conspiracy by BPMB and its CEO to destroy Aries as an ongoing concern.

[6] On 25 September 2018, BPMB applied for summary judgment and also applied to strike out the Counterclaim. On 9 May 2019, the High Court (Nantha Balan J, as His Lordship then was) allowed both applications and entered judgment for RM451,266,763.13 together with interests and costs ("the Judgment"). The High Court also struck out Aries, Zavarco and Zulizman's Counterclaim.

The Appeal To The Court Of Appeal, Motion To Adduce Fresh Evidence And Leave To Appeal To The Federal Court

[7] On 13 May 2019, Zavarco, Zulizman and Aries appealed to the Court of Appeal. During the appeal, on 31 March 2021, news articles were published by "theedgemarkets.com" and "freemalaysiatoday.com" reporting the arrest of four individuals including BPMB's former president and managing director for receiving kickbacks related to the Term Loan Facility.

[8] On 29 September 2021, Zavarco, Zulizman and Aries filed a motion to adduce fresh evidence comprising these news articles. Specifically, they sought to adduce articles from "theedgemarkets.com" titled "MACC detains four including former bank president cum MD for suspected graft" and from "freemalaysiatoday.com" titled "Former bank president among 4 nabbed by MACC", both dated 31 March 2021. The articles reported that four individuals including BPMB's former president and managing director were arrested for receiving approximately RM8 million in "kickbacks" for approving the RM400 million loan. Zavarco and Zulizman argued that this evidence would satisfy the "smoking gun" that the High Court judge was looking for to support their claims of conspiracy and economic sabotage, and that it directly confirmed their defence and causes of action.

[9] On 12 November 2021, BPMB filed written submissions in the Court of Appeal opposing the motion, arguing that the news articles were not connected to or did not make any reference to the Term Loan Facility and that "at best, the sum of the loan mentioned in the News Articles matches the Facility."

[10] The Court of Appeal dismissed this motion but held that pursuant to r 7(2) of the Rules of the of Appeal 1994, leave was not required for the Court of Appeal to consider the news articles as the appeals arose from interlocutory applications. The Court of Appeal then referred to the reports but nevertheless dismissed the appeal against the Judgment on 25 November 2021, though it allowed the appeal against the striking out of the Counterclaim.

[11] On 17 December 2021, Zavarco and Zulizman applied for leave to appeal to the Federal Court , posing question