KENANGA INVESTORS BERHAD v 1. ) ZULRAFQ CAPITAL SDN BHD 2. ) TAN SRI ZULHASNAN BIN RAFIQUE PIHAK TERKILAN 1. ) DATUK WIRA ISMITZ MATTHEW 2. ) MUHAMMAD TAQIUDDIN HALIM

wa-22ncc-489-07-2023 High Court (Mahkamah Tinggi) 10 February 2026 • WA-22NCC-489-07/2023 • 6 min read
1 cases cited (0 SG, 1 foreign)

Catchwords

CONTRACT LAW: Option agreements – Put and Call Option – Exercise of put option – Notice requirements – Compliance with mandatory contractual terms – Whether ten-business-day notice requirement in Clause 2.2 is mandatory or directory – Whether put option validly exercised when notice served only three days before expiry – Whether non-compliance with notice requirement renders put option notice null and void – Whether agreement automatically terminated pursuant to Clause 2.5 when put option not validly exercised during option period – Whether plaintiff can still exercise put option after option period expired – Effect of failure to comply with condition precedent to exercise of contractual right CIVIL PROCEDURE: Order 14A applications – Determination of questions of law and construction of documents – Summary determination without full trial – Whether questions suitable for determination under Order 14A – Whether material facts relating to questions are in dispute – Whether questions turn on construction and application of clear contractual provisions to undisputed documentary facts – Whether determination will finally determine entire cause or matter – Whether allegations of inducement, conspiracy and misrepresentation preclude Order 14A determination of discrete contractual compliance issue – Whether consideration of waiver by conduct requires viva voce evidence – Whether Order 14A application at advanced stage of proceedings amounts to abuse of process – Whether inconsistency exists between resisting summary judgment and seeking Order 14A determination – Application of doctrine of approbation and reprobation CONTRACT LAW: Construction and interpretation of contracts – Mandatory versus directory requirements – Interpretation of word "shall" in contractual provisions – Condition precedent to exercise of contractual rights – Automatic termination clauses – Effect of clear and unambiguous contractual language – Whether substantial compliance sufficient or strict compliance required – Saving clauses for antecedent breaches – Whether saving clause preserves rights under invalid notices or terminated agreements

Practice Areas

Contract Civil Procedure

Judges (1)

Elaine Yap Chin Gaik Delivered

Counsel (9)

James Monteiro Firm Jeeva Partnership Firm Justin Voon Chooi & Wing Firm Shaikh David & Co Firm Henry Poh Jun Yang Counsel Defendant Jasmin Irisa binti Ahmad Mirza Counsel Plaintiff John Aloysius Skelchy Counsel Defendant Shaikh Abdul Saleem bin Shaikh Abdul Karim Counsel Plaintiff Victor Pang Chee Siong Counsel Defendant

Parties (5)

KENANGA INVESTORS BERHAD Plaintiff ZULRAFQ CAPITAL Sdn Bhd Defendant Datuk Wira Ismitz Matthew Aggrieved Party Muhammad Taqiuddin Halim Aggrieved Party Tan Sri Zulhasnan bin Rafique Defendant

Case Significance

Frames the mandatory-versus-directory construction of a contractual put-option notice requirement, conditions precedent and automatic-termination clauses, and the limits of Order 14A summary determination, while confirming that specific discovery is refused for documents neither identified nor shown to exist.

This High Court decision arises in a commercial suit brought by Kenanga Investors Berhad against Zulrafq Capital Sdn Bhd and an individual guarantor (a natural person referred to here by role), a companion to a substantially similar action between the same parties. In this suit the dispute concerns Option Agreements and a Personal Guarantee relating to some 190 million shares in KNM Group Berhad at an option price exceeding RM44 million. The substantive contest turns on the exercise of a put-and-call option and, in particular, on the notice machinery of the agreements.

The central contractual questions, as framed in the catchwords, are whether the ten-business-day notice requirement in Clause 2.2 is "mandatory or directory"; whether a put option was "validly exercised when notice [was] served only three days before expiry"; whether non-compliance "renders [the] put option notice null and void"; and whether the agreement "automatically terminated pursuant to Clause 2.5 when [the] put option [was] not validly exercised during [the] option period". These issues engage the construction of the word "shall", the doctrine of conditions precedent to the exercise of a contractual right, and the effect of automatic-termination and saving clauses. A related procedural question is whether such matters are suitable for summary determination under Order 14A, or whether allegations of inducement, conspiracy and misrepresentation, and issues of waiver by conduct, require oral evidence and preclude summary disposal.

The application actually determined in the available reasons was an application by the "Zulrafq Parties" for specific discovery under Order 24 of the Rules of Court 2012. The court dismissed it, holding that the requested documents had not been specifically identified or shown to exist, that the request was a fishing expedition extending beyond the cheques already exhibited, and that discovery was unnecessary where the applicants already held the relevant material, with costs of RM3,000 awarded to Kenanga.

The judgment is significant for framing the mandatory-versus-directory analysis of a contractual notice requirement and the limits of Order 14A summary determination, while confirming that specific discovery will not be granted for documents that are neither identified nor shown to exist.

Summary

In a related action to Suit 140 involving the same parties and substantially similar Option Agreements for KNM Group Berhad shares worth RM44.9 million, the defendants sought specific discovery of payment and transaction documents. The High Court dismissed the application on the same grounds as Suit 140, finding it was a fishing expedition that would improperly shift the burden of proof and was unnecessary.

What are the key contractual questions in the main suit?

Whether the ten-business-day notice requirement in Clause 2.2 is mandatory or directory, whether a put option served only three days before expiry was validly exercised, whether non-compliance renders the notice null and void, and whether the agreement automatically terminated under Clause 2.5 when the option was not validly exercised in the option period.

How was the discovery application decided?

It was dismissed with costs of RM3,000, the court holding the requested documents were not specifically identified or shown to exist, that the request was a fishing expedition beyond the cheques already exhibited, and that discovery was unnecessary where the applicants already possessed the relevant material.

Statutes Cited

Evidence Act 1950 (Cap 56)
Rules of Court 2012

Cases Cited (1)

MY (1)
[1994] 2 CLJ 581

Judgment

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Source: eJudgment (wa-22ncc-489-07-2023)