Ahmad Rubil Bin Ahmad v Minda Muhibah Sdn Bhd (WA-22NCvC-655-09/2019)

AHMAD RUBIL BIN AHMAD

MAZAWATI OSMAN

LOW KOE SEI

KOH MEI LENG

ABDUL MALEK BIN AHMAD ZAINI

HAIRONI BINTI RAFFAIEE

CHONG SUN CHAN

TONG YAP LAN

SYARIFAH ALIZA BINTI SYED AZAUDDIN

JURAIMI AZAHAR BIN TAHARIM (NRIC NO.: 730510-08-6671) 05/05/2026 16:56:14

ANWAR ALI BIN VALI MOHAMED (NRIC NO.: 650918-01-5009) ...PLAINTIFFS

MINDA MUHIBAH SDN BHD (Company No.: 817545-D)

CK EAST CONSTRUCTION SDN BHD (Company No.: 704577-U) ...DEFENDANTS GROUNDS OF JUDGMENT

This Court is concerned with two interrelated applications arising after the completion of a full trial in this action.

The first is the Plaintiffs’ application made vide Enclosure 241, being the Plaintiffs’ Notice of Application dated 7.8.2023, in which the Plaintiffs seek orders to strike out and/or stay the Defendants’ application, i.e., Enclosure 245, the second application, for assessment of damages, pending the disposal of the Plaintiffs’ appeal.

This matter comes before this Court at a post-trial stage, after the disposal of the main suit and the exhaustion of the appellate process.

The Plaintiffs commenced this action against the Defendants, alleging negligence, nuisance, and breach of statutory duty arising from the Defendants’ construction works. The Defendants’ activities were said to have caused damage and posed danger to the Plaintiffs’ properties.

In the course of the proceedings, the Plaintiffs obtained an interlocutory injunction against the Defendant. In that context, the Plaintiffs furnished the usual undertaking as to damages.

Subsequently, the interlocutory injunction proceedings were resolved by way of a Consent Order dated 2.9.2020, whereby:

the Defendants were permitted to proceed with works subject to conditions; and

the Plaintiffs undertook to pay damages to the Defendants arising from the injunction.

Paragraph (d) of the Consent Order stated that; “(d) Plaintif-Plaintif memberikan aku janji untuk membayar ganti rugi kepada Defendan-Defendan bagi sebrang kerugian yang berbangkit daripada permohonan ini sekiranya Mahkamah yang Mulia ini mendapati bahawa perintah injunksi telah diberikan secara salah setelah perkara ini dilupuskan selepas perbicaraan;”.

The matter then proceeded to a full trial before another learned High Court Judge.

On 23.6.2023, the Plaintiffs’ claim was dismissed in its entirety, with each party bearing its own costs.

The Plaintiffs’ appeal to the Court of Appeal was dismissed, and the decision of the High Court was affirmed.

Subsequently, the Plaintiffs’ application for leave to appeal to the Federal Court was refused.

The decision dismissing the Plaintiffs’ claim is therefore final and conclusive.

Following the dismissal, the Defendants initiated proceedings for assessment of damages based on the Plaintiffs’ undertaking.

The Plaintiffs then filed the application to strike out and/or stay that assessment, particularly in light of a pending appeal against the dismissal of the main suit.

The Plaintiffs contend that the Defendants’ reliance on the undertaking as to damages (aku janji) is misconceived. Properly construed, the undertaking is expressly conditional upon a prior finding by the Court that the injunction was wrongly granted.

In the present case, the Plaintiffs contend that there has been no such judicial determination at any stage of the proceedings. In the absence of this threshold finding, the undertaking does not become operative, and no entitlement to damages arises.

Further, the enforcement of an undertaking is not automatic but remains subject to the Court’s discretion. Accordingly, the Defendants’ claim for assessment of damages is without legal basis.

The Defendants contend that the Plaintiffs’ reliance on the conditional nature of the undertaking (aku janji) is misplaced.

The Defendants argue that the issue of whether the ex parte injunction was properly granted was expressly deferred by agreement of the parties to be determined after trial pursuant to the Consent Order, and that the burden lay on the Plaintiffs, as the applicants for the injunction, to justify its grant.

The Defendants submit that the Plaintiffs failed entirely to discharge this evidential and legal burden throughout the trial, with no evidence adduced to support the necessity or propriety of the injunction.

In those circumstances, the Defendants argue that it necessarily follows that the injunction was wrongly granted, thereby triggering the Plaintiffs’ undertaking and entitling the Defendants to damages arising from the injunction.

Alternatively, the Defendants submit that this Court ought now to make the requisite finding on the propriety of the injunction in order to give effect to the undertaking and proceed with the assessment of damages.

Before addressing the substantive issues, it is necessary for this Court to clarify its position.

This Court is not the trial court that heard the evidence and made findings on the merits of the Plaintiffs’ claim, nor the court that dealt substantively with the interlocutory injunction beyond what is recorded in the cause papers.

The present task of this Court is therefore not to revisit or reconstruct the factual findings of the trial, nor to speculate as to the subjective reasoning of the learned trial judge in granting or dealing with the interlocutory injunction.

Instead, this Court is confined to:

the record of proceedings, including the Consent Order;

the terms of the undertaking as to damages; and

the final outcome of the litigation as determined by the trial court and affirmed on appeal.

In particular, this Court does not consider it appropriate to embark on an exercise of attempting to “interpret the mind” of the learned trial judge in relation to the injunction.

The Court must instead adopt an objective and principled approach, grounded on the legal effect of:

the Consent Order; and

the final determination of the Plaintiffs’ claim. D. ISSUES FOR DETERMINATION

The issues for determination are:

Whether the Defendants are presently entitled to proceed with the assessment of damages pursuant to the undertaking as to damages;

Whether the Defendants’ application for assessment ought to be struck out; and

Alternatively, whether the assessment proceedings ought to be stayed pending the disposal of the appeal. E. ANALYSIS AND FINDINGS

Nature and effect of the undertaking as to damages

It is trite that an undertaking as to damages is not an automatic entitlement.

The undertaking operates as a conditional obligation, enforceable only upon a determination by the Court that the injunction in question was wrongly granted.

In the present case, the existence of such an undertaking is not in dispute. It is expressly recorded in the Consent Order that the Plaintiffs undertake to pay damages to the Defendants arising from the injunction.

The fact that the interlocutory injunction was subsequently resolved by way of a Consent Order, rather than determined after a contested hearing, does not negate or extinguish the undertaking.

The undertaking remains operative and enforceable according to its terms.

(ii) Whether a separate finding that the injunction was wrongly granted is required

The Plaintiffs contend that, in the absence of a specific judicial finding that the injunction was wrongly granted, the Defendants are not entitled to invoke the undertaking.

This Court is unable to accept that contention in the present circumstances.

The interlocutory proceedings were not determined on their merits because the parties elected to resolve them by consent. In such a situation, the Court believes that the absence of a formal adjudication cannot be relied upon to defeat the operation of the undertaking.

In fact, to hold otherwise would allow a party who has obtained an injunction and given an undertaking to avoid the consequences of that undertaking merely because the issue was not litigated to conclusion.

Further, this Court believes that such a result would be inconsistent with the purpose and function of an undertaking as to damages.

(iii) Effect of the final disposal of the main suit

The critical factor in the present case is that the Plaintiffs’ claim has been:

dismissed at trial;

affirmed on appeal; and

not permitted to proceed further by the Federal Court.

The dismissal of the Plaintiffs’ claim is therefore final and conclusive.

The Court of Appeal expressly upheld the trial judge’s findings that the Plaintiffs failed to establish negligence, nuisance, or breach of statutory duty.

In these circumstances, the substantive basis upon which the interlocutory injunction was obtained has wholly failed.

Viewed objectively, the continuation of the injunction, had it remained in force, would not have been justified in light of the final determination of the Plaintiffs’ claim.

In such circumstances, that the Plaintiffs’ undertaking as to damages becomes operative and enforceable.

This conclusion does not require this Court to make a retrospective or independent finding that the injunction was wrongly granted. It is sufficient that the underlying claim has failed conclusively.

(iv) Whether the Defendants’ application should be struck out

The Plaintiffs seek to strike out the Defendants’ application, under the principles governing Order 18, Rule 19 of the Rules of Court 2012.

“Striking out pleadings and endorsements (O. 18, r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

The principles governing striking out are well established. It is a draconian remedy to be exercised only in plain and obvious cases. (Bandar Builder Sdn Bhd & Ors v United Malayan

In the present case, the Court found that the Defendants’ application is grounded on:

an express undertaking; and

a final judgment in their favour.

Therefore, it cannot be said that the application is frivolous, vexatious, or an abuse of process.

Accordingly, the Plaintiffs’ application to strike out is dismissed.

Whether there is any basis for a stay

The Plaintiffs also seek a stay of the assessment proceedings.

The principal basis for a stay would ordinarily be the existence of a pending appeal or other proceedings that may affect the outcome.

In the present case, however:

the appeal to the Court of Appeal has been dismissed; and

leave to appeal to the Federal Court has been refused.

There are no pending proceedings which would justify a stay.

In the absence of any such basis, this Court finds no justification to delay the Defendants’ entitlement to proceed with the assessment.

The Plaintiffs’ application for a stay is therefore refused. F.

This Court found that the Defendants’ application for assessment of damages ought not to be struck out at this stage as it cannot be said to be plainly unsustainable or an abuse of process.

The Court accepts that, pursuant to the Consent Order, the question whether the injunction was properly or wrongly granted, and consequently whether the Plaintiffs’ undertaking as to damages is engaged, remains a live issue which was deferred to be determined after trial.

In this regard, the Defendants’ contention that the Plaintiffs, as the party who obtained the ex parte injunction, bore the burden of justifying its grant, and that such burden was not discharged at trial, raises a triable issue which cannot be resolved summarily on a striking out application.

Whether the absence of an express finding in the judgment precludes or permits the Court to now determine the propriety of the injunction, and whether the undertaking should be enforced, are matters properly to be considered in the assessment proceedings upon full consideration of the evidence and submissions.

Accordingly, the Defendants’ application for assessment of damages discloses a sustainable basis in law and ought to be allowed to proceed.

Nevertheless, this Court emphasises that the enforcement of an undertaking as to damages remains subject to the Court’s control, particularly in relation to the assessment of quantum.

The present decision concerns only the Defendants’ entitlement to proceed with the assessment, and does not determine the quantum of damages, which remains to be assessed in accordance with the law.

For the reasons set out above, this Court orders as follows:

The Plaintiffs’ application to strike out the Defendants’ application for assessment of damages is dismissed;

The Plaintiffs’ application for a stay is dismissed;

The Defendants are entitled to proceed with the assessment of damages pursuant to the Plaintiffs’ undertaking as to damages; and

Costs of RM5,000 to be paid to the Defendants. Dated: 5th May 2026 ………………………………………………….. (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiffs : Rajendra Navaratnam & Joel Low Seong Lin Messrs. Azman Davidson & Co (Kuala Lumpur) Advocates & Solicitors Counsel for The Defendants :