High Court judge Adlin Abdul Majid said that this is not a “plain and obvious” case to be summarily dismissed, and that there are issues that need to be thrashed out during a trial, including whether Goh and the four defendants have committed fraud as alleged by the plaintiffs.
KUALA LUMPUR (Dec 13): The High Court has dismissed an application by Datuk Allan Goh Hwan Hua, a co-founder of the now-defunct MYAirline, and four companies to strike out a suit brought against them by 15 investors. The matter will now go for full trial.
In her decision on Wednesday, High Court judge Adlin Abdul Majid said that this is not a "plain and obvious" case to be summarily dismissed, and that there are issues that need to be thrashed out during a trial. This includes the issue of whether Goh and the four defendants have committed fraud as alleged by the plaintiffs.
The investors had sued Goh and the four companies over their alleged failure to pay monthly redemption value sums and financing returns from the investors’ outlay of about RM8 million.
The companies being sued are i-Serve Online Mall Sdn Bhd (ISOM), Bright Moon Venture PLT (BMV), QA Smart Partnership PLT (QAS), and Trillion Cove Holdings Bhd (TCH). Goh, 57, is a shareholder of ISOM and director and shareholder of TCH.
In response, the defendants have filed an application to strike out the suit on the basis that the legal action was a nullity and an abuse of the court process.
To support their application, some defendants contended that the plaintiffs were "statutorily prohibited" from filing the legal action, as the sum demanded was part of the monies seized by Bank Negara Malaysia under the Anti-Money Laundering Act (AMLA) in late 2021.
In her judgement on Wednesday, Adlin noted that it was not evident that the repayments claimed by the plaintiffs were part of the monies seized.
"I'm unable to agree with the defendants' arguments that the target of the claim are the funds subject to the seizure orders. The cases pleaded and documentary evidence at this stage of proceedings are insufficient [to determine] that these monies do form part of the accounts [..] which are subject to the seizure order," she said.
She added that such a determination can only be made at a full trial, taking into account the movement of the plaintiff's monies paid under the agreement.
Goh and ISOM also pleaded that they were not a party to the contracts between the plaintiffs and BMV, QAS, and TCH. However, the plaintiffs alleged that there were representations made by Goh and ISOM regarding their investments in the three companies.
Addressing this, the judge said that these allegations have not been sufficiently rebutted and needed to be looked at further.
"With the allegations raised, the true nature of the transactions between the plaintiff and [BMV, QAS, and TCH] and [Goh and ISOM]'s involvement in them, if any at all, can only be determined at a full trial," she said.
The judge also said that she did not agree with the defendants' argument that the plaintiffs' statement of claim (SOC) was not "sufficiently particularised" and did not disclose a cause of action. She said that the SOC contained issues to be determined at a full trial.
She dismissed the striking out application, ordering the defendants to pay costs of RM8,000.
With the decision, the court also set nine initial dates for trial in October and December next year. The dates are Oct 14,15, 21, 22, 23 and Dec 16 to 19.
In the suit, the plaintiffs claim that the companies had failed to make the agreed upon monthly payments from November 2021 to June 2022, despite having been sent letters of demand by their solicitors.
They also noted that the payments to them stopped around the time BNM raided ISOM, TCH and other companies and subsequently froze their banking accounts.
Goh, who is also the co-founder and majority shareholder of troubled budget airline MYAirline Sdn Bhd, has initiated a judicial review application challenging BNM's freeze order.
In September, BNM said it had imposed a RM50 million compound against the i-Serve Group for accepting deposits without a licence.
BNM said it imposed the compound for seven entities under the i-Serve Group per Section 137(1) of the Financial Services Act (FSA) and for money laundering under Section 4(1) of Anti-Money Laundering, AntiTerrorism Financing and Proceeds
of Unlawful Activities Act (AMLA).
The central bank said the compound was imposed on Oct 19, 2022, with the written consent of the public prosecutor under a joint enforcement action that followed its investigation, which found that the offences were committed between June 2018 and September 2021.
The seven entities are ISOM (RM12.5 million), i-Serve Technology and Vacations Sdn Bhd (RM12.5 million), QAS, QA Elite Partnership PLT, QA Premium Partnership PLT and MM2217 PLT and Valuewise PLT (RM5 million each).
BNM added that the entities paid the compound on Nov 16.