JUDGMENT

Suzana Muhamad Said JC:

(After Full Trial)

Introduction

[1] The trial proceeded on 1 December 2025. The plaintiff called one (1) witness, namely Ng Chok Ling (PW1), who is the director of the plaintiff and the defendant called one (1) witness, namely Kho Kok Hong, the defendant (DW1), who is the executor of the estate of the late Kho Ah Soon (KAS).

[2] These are the witness statements (Witness Statements):

" WS-PW1 ": PW1's Witness Statement in Encl 126

"WS-DW1 ": DW1's Witness Statement in Encl 125

Brief Facts

Parties

[3] The plaintiff is a family holding company that owns properties and businesses, including construction and the manufacturing of building materials, through its subsidiaries, and was founded by Ng Kim Lim (NKL) and his wife, Tang Lin @ Tang Kam Wan (TL). NKL and TL also founded and owned another company, Ramanda Sdn Bhd (Ramanda).

[4] The defendant is the executor and trustee of the estate of the late KAS. On 7 June 2023, the defendant filed an application to substitute KAS as the defendant in this action, which was allowed on 8 September 2023.

[5] The following facts are the plaintiff's version derived from its submission.

[6] According to the plaintiff, KAS had approached Ng Ah Ba @ Ng Looi Seng (NAB) and Tang Yeam Soon (TYS) to jointly acquire Lot Nos 1152, 1154, 1236 and 1237, Mukim 14, Province Wellesley Central (Properties), which were adjoining lands measuring a total land area of approximately 60 acres (KAS, NAB and TYS collectively referred to as the "Beneficial Owners "). To acquire the Properties, the Beneficial Owners were required to pay a deposit of 10% of the purchase price.

[7] To raise money, KAS offered to sell one of the Properties, Lot No 1152, to NKL, for which NKL paid a deposit of RM325,396.70 through Ramanda.

[8] Ramanda was nominated by NKL to enter into a formal agreement dated 4 November 1991 (Agreement dated 4 November 1991) with the Beneficial Owners for the purchase of Lot 1152.

[9] The Beneficial Owners formed Soonshyan Properties Sdn Bhd (Soonshyan) to apply for a loan to acquire the Properties. Soonshyan then took a loan from OCBC Bank (Malaysia) Berhad (OCBC Bank) to finance the acquisition, and the Properties were charged as security.

[10] Soonshyan was nominated by the Beneficial Owners to enter into a supplemental agreement dated 7 April 1993 (Supplemental Agreement dated 7 April 1993) with Ramanda for the sale of Lot No 1152.

[11] Subsequently, Soonshyan defaulted in servicing the loan, resulting in OCBC Bank taking action to foreclose the Properties and the auction proceedings were scheduled on 2 July 1997.

[12] KAS then approached NKL on 3 June 1997 (Meeting on 3 June 1997), where KAS sought NKL's help to lend him a sum of RM5,000,000.00 for him to redeem the Properties from OCBC Bank.

[13] According to the plaintiff, KAS also told NKL that if NKL were to help him with the money, his repayment to NKL would be double, in which he would repay NKL the principal sum of RM5,000,000.00 and another RM5,000,000.00 as guaranteed profit within a year (Loan). Moreover, KAS would further pay NKL a monthly interest of RM27,000.00 throughout the Loan period.

[14] KAS undertook to pledge to NKL the documents of title of the Properties when they were retrieved from OCBC Bank and create a charge of all his undivided share of the Properties in favour of NKL for the loan granted. KAS further irrevocably grants NKL a power of attorney to take over all his undivided shares in the Properties in the event the court's decision in Suit No 22-244-1993 (Suit 244) is against him.

[15] Suit 244 was actually a prior case filed in the Penang High court regarding the dispute over ownership and/or entitlement to Lot Nos 1152, 1154, 1236, and 1237 among the Beneficial Owners of Soonshyan Properties Sdn Bhd. KAS lost the suit 244 and failed to obtain those lands, and thus, all contractual obligations were extinguished.

[16] According to the plaintiff, it was all recorded in the record of the meeting dated 3 June 1997 (