JUDGMENT

Atan Mustaffa Yusoff Ahmad J:

[1] Before the court is a dispute arising from a friendly loan agreement and related share placement transaction, where an executrix seeks to recover monies allegedly due to the deceased's estate. The key issues revolve around whether there was accord and satisfaction of the loan, the relationship between two contemporaneous agreements executed by different but related parties, the sufficiency of pleadings for certain defenses, and whether a debt that was not specifically mentioned in a will but included in probate assets can be pursued by an executrix under a residuary clause. The matter raises important questions about the interplay between contemporaneous agreements involving related parties, the proper scope of residuary clauses in wills, and fundamental principles of civil procedure regarding the adequacy of pleadings and conduct of trials.

Background Facts

[2] The Plaintiff, Lim Mei Jin, is suing as the personal representative of Loh Yuen Weng (deceased) ("the Deceased"), having been appointed as the executrix and trustee under the Deceased's Last Will and Testament dated 3 January 2017. A Grant of Probate was issued to her by the Kuala Lumpur High court on 27 September 2017.

[3] The Defendant, Loh Yuen Tuck, is the Deceased's younger brother. The Deceased and the Defendant were also business associates. The Deceased and the Plaintiff were husband and wife.

[4] Two agreements were executed on 17 April 2015:

a) A Memorandum of Agreement for Private Placement Shares ("the MOA") between the deceased and the defendant. Under this agreement, Connect IOT Sdn Bhd ("CISB") was to subscribe for 7,000,000 new ordinary shares of RM0.10 each in Managepay Systems Berhad ("MPS") at RM0.23 per placement share via a proposed private placement, in accordance with terms prescribed by Kenanga Investment Bank Berhad ("KIBB").

b) A Consultancy Services Agreement ("Consultancy Agreement") between the deceased and CISB. Under Schedule 1 Part 2 of this agreement, the deceased was to be paid 69% of the net proceeds derived from the disposal of the placement shares.

[5] The Defendant requested from the Deceased a friendly loan of RM1,680,000.00 for the purpose of advancing the loan to CISB to subscribe for the placement shares. Under the MOA, the friendly loan was to be advanced as follows: a bank draft payable to KIBB for RM1,610,000.00 and a cash sum of RM70,000.00.

[6] The MOA stipulated that if the proposed private placement was approved by Bursa Malaysia Securities Berhad ("Bursa Securities"), the Defendant would repay RM1,610,000.00 to the Deceased within 3 months from the date of listing of the placement shares, and the repayment of the RM70,000.00 would be waived.

[7] The following disbursements were made:

a) RM70,000.00 was remitted via interbank transfer from the Deceased's CIMB Bank account to Messrs C.S. Tang & Co on 14 April 2015

b) RM430,000.00 was transferred from the Deceased's CIMB Bank account to KIBB on 14 April 2015

c) RM480,000.00 was transferred from the Plaintiff's personal CIMB Bank account to KIBB on 14 April 2015

d) RM720,032.86 was withdrawn from the Deceased's Maybank Islamic account on 27 July 2015, of which RM720,000.00 was remitted to MPS

[8] KIBB was appointed as the Adviser and Placement Agent for the proposed private placement. The Defendant was both a director (appointed on 31 March 2015) and shareholder of CISB, holding 50% of CISB's shares.

[9] The proposed private placement was approved by Bursa Securities and was completed on 21 July 2015 following the listing of and quotation for 130,293,200 MPS shares on the ACE Market of Bursa Securities.

[10] On 7 October 2020, the Plaintiff's solicitors sent a letter of demand to the Defendant for the sum of RM1,610,000.00. According to the Companies Commission of Malaysia's digitally certified true copy of CISB's company information report dated 22 January 2022, the status of CISB is "DISSOLVED".

[11] The Deceased passed away on 14 May 2017. In his