T.S. Hariharan & Partners

On the court record

The firm's record illustrates how the courts look behind the form of a transaction to determine whether an ostensible sale disguises illegal moneylending, and the limits of the in pari delicto and ex turpi causa doctrines and the nominee-shareholder principle.

T.S. Hariharan & Partners appears in the corpus as counsel in commercial and property litigation, argued in the High Court (Mahkamah Tinggi) and the Court of Appeal (Mahkamah Rayuan).

A prominent strand of the firm's work concerns allegations that sale-and-purchase transactions were shams disguising illegal moneylending. Acting for appellants in connected appeals involving AJ Kasturi Sdn Bhd and MA Joseph Capital Sdn Bhd, the firm appeared where the central questions were whether transactions structured as sales and purchases of land were in truth a means of disguising illegal moneylending, whether it was appropriate for the court to scrutinise the documents and transactions where illegal moneylending was alleged, whether the doctrines of in pari delicto and ex turpi causa non oritur actio applied, and whether the trial court had been plainly wrong. These appeals engage a recurring problem in Malaysian commercial litigation, namely how far a court will look behind the form of a transaction to its substance where one party contends that an ostensibly lawful conveyance masks an unlawful lending arrangement.

The firm also appeared in corporate litigation over the ownership of shares. Acting for the defendant, it appeared where a plaintiff alleged that her signature on a share-transfer form had been forged, the court examining the burden of proving forgery, the plaintiff's failure to call a handwriting expert, whether the execution of the transfer form and delivery of the certificate sufficed to divest her of her interest, and whether she was a nominee shareholder holding the shares on trust under an arrangement said to be illegal, the court observing that a nominee arrangement precludes a beneficial owner from asserting ownership only where the shares are held for an illegal purpose or to defraud a public authority. The firm's record is a commercial-litigation practice engaging the substance of disputed transactions and the proof of share ownership.