JCW

[Summary Judgment – claim for specific sum- compromise arrangement] Justin was the counsel for the Defendant. The Court dismissed the Summary Judgment application and amongst others held that the claim before this court can be distinguished from normal straighforward cases simply with the existence of the compromise set off arrangement which was discussed at the August 2018 meeting. And the Court found that the defendants have sufficiently raised the following triable issues: (a)the lack of clarity of the claimed sum; and (b)the compromise arrangement between the plaintiff and the first defendant, which was discussed at the August 2018 meeting.

[Amendment application – delay] Justin acted as counsel for the Appellant. The High Court dismissed the appeal against the refusal by the sessions court to allow an application to amend the defence on the basis that there was a delay where amongst others the Court held that delay must be looked contextually and not in isolation. [Note : ON appeal, the Court of Appeal vide Civil Appeal No. J-04(IM)(NCVC)-494-12/2020 had allowed the appeal and the amendment]

[Amendment of an Order to reduce the sum awarded] Justin was counsel for the Plaintiff. The 1st Defendant applied vide notice of application dated 14/11/2018 for leave to amongst others amend the Court Order dated 25/11/2011 to reduce the sum awarded from RM645.566 to RM75,566. The High Court allowed the 1st Defendant’s application although the Plaintiff raised that an amendment application is not proper and it is in reality an attempt to set aside the Court Order which was already raised in a previous separate Suit 318 and the matter was res judicata. The Court held amongst others that it had the inherent powers to do so. [Note : The Court of Appeal in Civil Appeal No. W-03(IM)(NVCV)-50-08/2020 has overturned the High Court decision on 17/12/2021]

[Claim for specific performance in respect of a single sale & purchase agreement where not all joint purchasers are before the Court – striking out] Justin & Christina Chin was the counsel for the Defendant. The Plaintiffs and 2 others jointly purchased a piece of land Lot 4562 and another land Lot vide 2 respective sale and purchase agreements. The Defendant raised amongst others that the Plaintiffs has no locus standi to proceed for specific performance without the other 2 co-purchasers The Defendant applied to strike out the case which was allowed by the Court and the Court amongst others held that an undivided/joint owner of the land does not have locus standi to sue without joining other joint owners and hence, the Plaintiffs who have “equal share” in both lands have no locus standi here without including the other joint purchasers.

[Contempt proceedings – breach of Anton Piller Order] Justin and Christina Chin acted as counsel for the Plaintiff in this case. This case involves the principles of law in respect of the enforcement of an Anton Piller Order (“APO”) which the Plaintiff states was not complied with by the 1st Defendant (the 1st Alleged Contemnor) and the persons in control of the premises i.e the 2nd and 3rd Alleged Contemnors   The Court inter alia held that :   (i)              The case against the 1st Defendant is very clear where she has been served with the APO and the terms of the APO has been explained to her. She was asked to surrender her laptop were she responded she did not have her laptop but she was pictured later that day carrying a laptop bag. The Court found that it was improbable that she would not have her laptop with her seeing that she was at the premises to carry out a demonstration to a potential client. In any event she was subsequently asked again by letter dated 26/10/2017 to deliver up her lap top but she has not complied with the APO to date.     (ii)            The 1st Defendant refused to comply with the APO on basis the premises is not her office, but the premises is the place where the Plaintiff has reason to believe that the Defendants’ products or some of them are, since she was there to conduct a demonstration of her products   (iii)          However, since the person in control of the premises are the 2nd and 3rd Alleged Contemnors, and there is possibility that the Plaintiff would not be able to execute the APO even if the 1st Defendant did not object to it, the Court is not satisfied beyond reasonable doubt that she had obstructed the execution of the APP. But the 1st Defendant is guilty of contempt of Court in not surrendering her laptop at all, in breach of the terms of the APO     (iv)          As for the case against the 2nd and 3rd Alleged Contemnors, the Supervising Solicitors (“SS”) did hand the APO to the 2nd Alleged Contemnor for her to hand to her lawyers. The  SS did not explain the terms of the APO to the 2nd and 2rd Alleged Contemnors but to their lawyers who advised them what they should do. Despite that , the 2nd Alleged Contemnor pointedly said the Plaintiff cannot search the premises , they are not bound by the APO, there are not parties to the action, the premises do not belong to the Defendants and the APO might be obtained due to non disclosure of material facts.   (v)            The  2nd and 3rd Alleged Contemnors’ lawyers wrote a letter dated 19/10/2017 stating they are not bound by the APO and the APO might be obtained due to non disclosure of material facts but it did end the letter by saying that should the Plaintiff insist on entry and search it will reserve its rights to claim damages. The Court is of the view that the 2nd and 3rd Defendant have not categorically refused to comply with the APO as the option was given to the Plaintiff to insist on the entry and search. There is a reasonable doubt whether the 2nd and 3rd Alleged Contemnor had obstructed the Plaintiff from enforcing the APO   (vi)          The failure to comply with Order 52 rule 2B of the Rules of Court 2012 on service of a show cause notice is not fatal nor prejudicial to the 2nd and 3rd Alleged Contemnors   (vii)         The case of Dato Seri Yusof Bin Dato Biji Sutra @ Mohamad v BTM Timber Industries Sdn Bhd [2010] 1 MLJ 644 where the Court of Appeal held the words “persons appearing to have control of the premises” are too vague but on the careful reading of that case, the Court of Appeal is saying that it has not been shown the alleged contemnors in that case were the persons appearing to be in control of  the premises. In this case, the APO uses the words “owner of the Premises” or “persons on control of the Premises” and it is not in dispute that the 3rd alleged Contemnor is the owner of the premises and the 2nd Alleged Contemnor was the person who had control of the premises.     [Note : The Plaintiff appealed to the Court of Appeal vide Civil Appeal No. W-02(IM)(NVCV0-73-01/2021 and the Court of Appeal on 7/7/2022 allowed the Appeal and reversed the decision of the High Court vis-à-vis the 2nd and 3rd Alleged Contemnors and ordered that they were in contempt of court]

[setting aside of Consent Judgment]   Justin was the counsel for the defendant. The Plaintiff applied to Court to declare that the Consent Judgment entered between parties is amongst others declared as “stands terminated”. The Court dismissed the application and held inter-alia as follows : (i)The Federal Court in Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 decided that a party could seek termination only in a case where time was of the essence and the party in breach had not performed its obligations in its entirety within the time-frame stipulated by the contract or where there had been a total failure of consideration. Applying that principle here, this was not a case of total failure of consideration; nor was time expressed to be of the essence of the consent order. Neither had the defendant refused to perform its contractual obligations or failed to perform its entire promise. It therefore followed that the plaintiff was not entitled to terminate the consent order as the defendant had not refused to perform its contractual obligations. The said decision of the Federal Court was binding upon this court (ii)The consequential relief that the plaintiff sought if termination of the consent order was allowed was for an order that the defendant account for or refund all benefits that it had received under the consent order and for damages to be assessed. It appeared that the plaintiff was seeking restitution and for the consent order to be set aside ab initio. This was contrary to the decisions in Berjaya Times Square Sdn Bhd and Turf Club Auto Emporium Pte Ltd and Others v Yeo Boong Hua and Others and Another Appeal and Other Matters [2017] 2 SLR 12; [2017] SGCA 21 that a contract or consent order could not be discharged or terminated ab initio on the basis of a breach. On the basis of those two cases, the courts were unanimous in deciding that a consent order could only be terminated prospectively and its effect was to release parties from their future performance. (iii) The plaintiff ought to have applied under the ‘liberty to apply’ clause to enforce her rights under the consent order in Suit 627 for an appropriate consequential order if she was of the view that the consent order had been breached. Since the defendant’s application for enforcement of the consent order in Suit 627 was filed first in time and was pending determination, it was more expeditious for the plaintiff to make the necessary application in the suit itself.

[setting aside of restraining order and sanction for scheme of arrangement] Justin and Alvin acted for Proposed Interveners to apply to intervene and set aside ex-parte order granted by the Court to sanction a proposed scheme of arrangement and the restraining order. The Court allowed the Proposed Interveners’ application and inter-alia held that : (i) Grant of leave to intervene was warranted as the implementation of the scheme would directly and seriously affect the rights of the proposed interveners (ii) Court convened Creditors meeting held outside the 90 days period in the ex-parte order without any leave to extend time was a breach of the order. Also, some of the proposed interveners received their notice on filing of proof of debt late and were deprived of their statutory rights to vote (iii)No specific condition in the ex parte order or proposed rules of meeting or Section 366 of the companies act 2016 that the filing of proof of debt is required before the proposed interveners are recognized as class of creditors (iv) Application to sanction the scheme is an abuse of process bearing in mind that the settlement agreement upon which the proposed scheme is conditional, had been terminated and hopelessly insolvent and it would be against public policy. (v)On evidence, the white knight is not in a financial postion to implement the scheme. (vi)There was non disclosure of material facts including the inability of the white knight to rehabilitate the project All four requirements of Section 368(2)(a) to (d) of the Companies Act 2016 must be met even before the initial restraining order and there was non-compliance with these provisions.

[disqualification] Justin was the counsel for the defendant. The plaintiff entered into a sale and purchase agreement with the defendant and claimed that there was a breach by the defendant and claimed liquidated damages from the defendant. The defendant in his defence and counterclaim, contended that the agreement was a sham. The defendant applied to disqualify the legal firm from acting for the plaintiffs on the ground that the 4th plaintiff is a partner in the said firm and has a pecuniary interest in the action and that the other partner of the firm had purportedly witnessed the execution of the agreement. It is not disputed that both partners in the law firm are potential material witnesses in the action if it proceeds to trial. The High Court allowed the defendant’s application to disqualify the law firm from acting for the plaintiffs. The High Court also rejected the submission that the legal firm can still act for the relevant partners who will not be conducting the trial when inter alia the proximity of relationship of the partners and the legal assistants are too close for comfort to ensure a conflict of interest will not arise.