Sathya Kumardas

Acted for local financial institutions in investigating and taking legal actions against their employees and abetting third parties for fraud and conspiracy, wheretracing actions were involved.

Acts for financial institutions in recovery of financing granted under their consumer and/or commercial businesses and in enforcement of securities. Thisincludes acting for syndicated financiers in cross-border recoveries. We also act for various other entities for debt recovery matters arising from breach ofagreements, non-payment of utilities and electricity theft.

Acted for a local financial institution in litigation commenced by third-party transferor originator of funds who had, in reliance of advice from a fraudster,transferred substantial sums to a customer’s account maintained with the financial institution. The financial institution’s application to strike out the claim wassuccessful. Through this decision, the Courts recognized that that there is no duty in law including a Quincecare duty of care that can arise or apply in instancesof transactions made by reason of scam by third parties [Sphere Management (Mauritius) Limited & Ors v. CIMB Bank Berhad & Ors [2021] 1 LNS 2325(reported)]. The decision was upheld by the Federal Court.

Represented a local financial institution in a slew of litigation arising from a dispute on treatment of the customer’s non-linear bank accounts [the subject matterof 2014 Section 44 Freezing Order and 2014 Section 50 Seizure Order issued under the Anti Money Laundering Act (AMLATFA)] and a settlement agreemententered between the financial institution and customer prior to the customer’s successful application to set aside the Freezing and Seizure Orders (which thefinancial institution was neither party nor privy to), becoming the basis for new demands/claims despite the settlement agreement.

Represented local financial institutions in matters where the issues arise from an internal credit processing error in relation to a third-party remittance servicewhich resulted in the client mistakenly crediting funds into affected customer accounts and advised on recovery measures available to the client to obtain themistaken credits paid out including recovery modes available under the terms and conditions of the banking products and means of recovery in law and equity.Liaised with forensic and media experts on strategies employed by the client to minimise publicity and exposure arising from what appears to also be a schemedevised by some of the customers to benefit unfairly from the processing error.

Successfully represented a financial institution in defending an action brought by a borrower/chargor seeking declaratory reliefs to set aside the order for saleof a secured property obtained in foreclosure proceedings and damages as the property was allegedly sold at an undervalue and the appeals arising therefrom.The decision of the Federal Court in this matter clarified the scope of a mortagee / chargee’s duty in auction sales, particularly regarding the determination ofreserve prices, and reinforces the principle that professional valuers’ assessments, absent evidence of wrongdoing, should be relied upon.

Acts for a company licensed to carry out direct sales activities in an action commenced against various entities and individuals for among others breach ofcontract, breach of implied and/or fiduciary duties, tort of inducement / unlawful interference, fraudulent misrepresentation, fraud, defamation, breach ofconfidence, passing off and copyright infringement, in relation to the marketing, sale, supply and distribution of one of its products in Malaysia. We successfullyobtained interim injunctions against such entities and individuals from, amongst others, making any disparaging remarks against the management, employees,and directors of the company, pending determination of the matter at trial.

Represented a Receiver and Manager, one of the 12 defendants, in an action brought by a previous owner of prime land, who was seeking to challenge theinitial sale of the said land in September 1989 as void/voidable and claim recovery of the said land with damages of RM30 million. In a complex set oftransactions that followed, the land was charged in favour of the Debenture Holder with the Receiver and Manager subsequently selling the land to a partywho, in turn, had on sold the land to another party. This case involved issues of fraud, forgery, want of authority to act, the powers of the Receiver and Manager,limitation and laches. The action was dismissed by the High Court after almost 50 days of trial. The decision of the High Court was upheld in both the Court ofAppeal and the Federal Court.

Assisting financial institutions in SIDREC proceedings relating to investor complaints following the 2023 write-down of the Credit Suisse AT1 coco bonds byproviding comprehensive advisory services, briefing bank officers / representatives, and preparing formal responses to both investors and SIDREC (includingopening statements and Q&As).

Acted as co-counsel for the trustee on behalf of the Sukukholders, who granted financing to a concession holder obligated to design, construct andsubsequently operate a highway, in successfully resisting an application for judicial management application and successfully obtaining leave from the Courtto enforce the securities. This case is important to the Malaysian insolvency law, in particular the judicial management framework under the Companies Act2016 because it involves the consideration of inter alia whether the public interest exception will apply to a privatized highway project where the Governmentof Malaysia has given a public infrastructure project to a private entity.

Acted for a landlord and owner of a shopping mall, who decided to close down the Mall and change the use of building, in successfully defending multipleactions brought by various tenants for wrongful termination of their respective Tenancy Agreements. These actions involved the determination of novel points/issues of law relating to the absolute discretion vested with the landlord to obtain early possession of the demised premises on the basis of a change of useof the Mall building (commonly seen in tenancy agreements for commercial premises/complexes) and the obligations of a landlord under a “best endeavourclause”.

Successfully represented a prominent CEO of a leading conglomerate company in Malaysia in relation to a defamation action brought against individuals forslanderous and defamatory statements made against such CEO in a public hospital.