JUDGMENT

Wong Kian Kheong JCA:

A. Background

[1] By way of -

(1) a "Letter of Offer" dated 13 May 2015; and

(2) a "Master Equity Secured Financing-i Facility Agreement" dated 9 June 2015 (Facility Agreement)

- Amanah International Finance Sdn Bhd (AIF) provided Tan Sri Abdul Halim Saad (HS) with a facility of up to RM80,000,000.00 (Facility) to purchase securities of Malaysian companies which must be Shariah-compliant.

[2] The Facility was in accordance with the "Tawarruq" concept of Shariah banking system.

[3] There were two drawdowns from the Facility by HS, namely -

(1) a first tranche of a sum of RM40,000,000.00 (1st Tranche). The 1st Tranche was used by HS to purchase shares in Sumatec Resources Bhd.; and

(2) a second tranche in the amount of RM20,250,000.00 (2nd Tranche). HS used the 2nd Tranche to acquire 20,000,000 shares (ESB Shares) in Efogen Sdn Bhd (ESB) by way of a Sale and Purchase Agreement dated 30 December 2015 [SPA (ESB)]. In the SPA (ESB), Abu Talib din Abdul Rahman (ATAR), as HS's nominee, purchased ESB Shares from AIF.

[4] On 26 January 2017, AIF and Hektar Premier Sdn Bhd (HP) entered into a "Assignment of Surplus Sale Proceeds" (Assignment) wherein, among others, HP had agreed to pay and discharge any amount due and owing from HS to AIF.

B. Proceedings in the High Court

[5] AIF filed Kuala Lumpur High Court Civil Suit no: WA-22M-465-09/2018 against HS (Suit No 465).

[6] In Suit No 465 -

(1) AIF claimed for, among others, a total sum of RM62,031,201.48 as due and owing from HS to AIF (as at 31 August 2018) under the Facility Agreement. In this judgment, we will describe this suit by AIF against HS as the "Original Action (Suit No 465)"; and

(2) HS had counterclaimed against AIF and ATAR [Counterclaim (Suit No 465)]. The Counterclaim (Suit No 465) prayed for the following relief, among others -

(a) a declaration that the SPA (ESB) is void ab initio;

(b) a declaration that HS's drawdown for the 2nd Tranche -

(i) was contrary to Shariah principles; and

(ii) in breach of the FA; and

(c) an order that all monies paid for the acquisition of ESB Shares, all profits and all other payments charged by AIF and paid by HS with regard to HS's acquisition of ESB Shares, be refunded to HS.

[7] In Kuala Lumpur High Court Civil Suit no: WA-22M-523-10/2018, AIF claimed from HP for, among others, a sum of RM62,031,201.48 as due and owing from HP to AIF pursuant to the Assignment (Suit No 523).

[8] By virtue of a Court order, Suit No 465 had been consolidated with Suit No 523 (Consolidated Suit).

[9] In the Consolidated Suit, before the commencement of the trial (Trial), HS had filed an application [HS's Application (Reference to SAC)] under s 56(1)(b) of the Central Bank of Malaysia Act 2009 (CBMA) for the High Court to refer four questions regarding Shariah principles [HS's 4 Proposed Questions (Shariah Principles)] to the Shariah Advisory Council (SAC) of Bank Negara Malaysia (BNM).

[10] The High Court had dismissed HS's Application (Reference to SAC) with costs [High Court 's Decision (Reference to SAC)]. According to the High Court 's Decision (Reference to SAC), reported in Amanah International Finance Sdn Bhd v. Tan Sri Halim Saad & Another Case (Encl 95) -

(1) HS's 4 Proposed Questions (Shariah Principles) were not novel issues;

(2) HS's 4 Proposed Questions (Shariah Principles) did not require a determination by the SAC because HS's 4 Proposed Questions (Shariah Principles) concerned the implementation, operation and execution of the agreements between the parties which-

(a) fell within the jurisdiction and competence of the Court ; and

(b) the Court could refer and take into consideration any published ruling of the SAC pursuant to s 56(1)(a) CBMA. In this regard, the Court may be assisted by expert witnesses; and

(3) in view of the reasons stated in the above subparagraphs (2)(a) and (b), there was no necessity for the High Court to refer HS's 4 Proposed Questions (Shariah Principles) to the SAC.

[11] HS's appeal to the Co