Lead arrangers may exclude liability for information memoranda provided sophisticated investors have a means for independent evaluation and the proximate cause of loss lies with the issuer's misappropriation rather than arranger negligence.

Arifin Zakaria Chief Justice:

INTRODUCTION

[1]There are five appeals before this court and they are:

(a) Civil Appeal No 02(f)-27–04 of 2012 (W) with CIMB Bank Bhdas the appellant and Maybank Trustees Bhd as therespondent;

(b) Civil Appeal No 02(f)-28–04 of 2012(W) with Datin Murnina bt Dato' Hj Sujak as the appellant and Maybank Trustees Bhdas the respondent;

(c) Civil Appeal No 02(f)-29–04 of 2012(W) with KAF InvestmentBank Bhd as the appellant and MIDF Amanah InvestmentBank Bhd and 11 others as the respondents;

(d) Civil Appeal No 02(f)-30–04 of 2012(W) with Maybank TrusteesBhd as the appellant and MIDF Amanah Investment BankBhd and 20 others as the respondents; and

(e) Civil Appeal No 02(f)-33–04 of 2012 (W) with Pesaka Astana (M)Sdn Bhd and eight others as the appellants and Maybank TrusteesBhd and another as the respondents.

For convenience, we will first deal with the third appeal.

[2]This court had on 5 April 2012 granted leave to appeal to KAF Investment Bank Bhd ('KAF') on the following questions of law:

(a) What liability in law is assumed by an issuer, lead arranger, facility agent and issue agent with respect to matters contained in an information memorandum?

(b) To whom do the lead arranger, facility agent and issue agent owe duties in contract, tort and/or statute, and in light of the express contractual obligations, duties and liabilities either by way of contract or under an information memorandum?

(c) Whether and to what extend are sophisticated investors, with the benefit of independent and professional advice, allowed to expressly apportion their obligations, duties and liabilities either by way of or under an information memorandum?

(d) Whether and to what extend is the lead arranger allowed to:

(i) Place experienced and sophisticated investors on notice as to the extend to which such investors are entitled to rely on information contained in an information memorandum? and

(ii) Limit any liability arising from any party reading and relying on the information memorandum?

(e) Is an information memorandum an agreement within the meaning of s 65Securities Commission Act 1993

(f) Where a party has benefitted in pecuniary form from its fraudulent actions, in what circumstances will a court of law countenance or permit that party to retain the benefit of that fraud?

(g) Where parties to a contract provide that a party will indemnify the other in full for any and all expense, loss, damage or liability arising out of the second party carrying out its duties under the contract in question:

(i) Whether a court of law can interfere with the agreed contractual indemnity and order that only a partial indemnity be given?; and

(ii) What circumstances will justify a court making such an order in law?

(h) Whether and to what extend can a court of law, to the exclusion of the Shariah Advisory Council, determine or ascertain Islamic law for the purpose of Islamic financial business within the meaning of ss 5657Central Bank of Malaysia Act 2009

(i) Where a trial court makes a finding that there is no misrepresentation on a particular state of facts, in the absence of an appeal from that decision by an affected party, can a Court of Appeal intervene and set aside that part of the High Court decision? If the answer to this question is yes, then to what extend, if any, does the doctrine of res judicata apply?

(j) On the issue of liability for the default of the issuer in repaying the bonds:

(i) In light of the fact that the lead arranger, issue agent and facility agent owe no duties in contract, tort or under statute to the trustee, can the lead arranger, issue agent an