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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN SIVIL NO.: WA-22NCC-133-02/2024
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WA-22NCC-133-02/2024
High Court of Malaysia25 Oct 2024
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“iffs’ application for a prohibitory injunction, I have taken into consideration the following requirements necessary for the grant of an interlocutory injunction (American Cyanamid Co. v. Ethicon Ltd [1975] AC 396): i) Whether there is a serious question or issue to be tried; ii) Whether the balance of convenience lies”
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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN SIVIL NO.: WA-22NCC-133-02/2024
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DATO’ CHANG JONG YU
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ICONIC BINA SDN BHD [NO. SYARIKAT: 200301027526 (629946-V)]
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LAMAN KEJORA SDN BHD [NO. SYARIKAT: 200801029285 (830614-W)]
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PERMAI IKHLAS SDN BHD [NO. SYARIKAT: 200401003050 (641553-M)]
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CERAH TEGUH SDN BHD … PLAINTIF - [NO. SYARIKAT: 199301010515 (265252-U)] PLAINTIF
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KUALA IBAI PROPERTY SDN BHD [NO. SYARIKAT: 201901024673 (1334002-V)]
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MODERN MODE SDN BHD [NO. SYARIKAT: 201201019072 (989217-V)]
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SAHAM TERBILANG SDN BHD [NO. SYARIKAT: 201201011534 (985051-W)]
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WOO THIN CHOY
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CHAI OWI YOK (NO. K/P: 521028-03-5066) Page 2 of 5 6. ONG PEE LEONG
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ONG KEE HIN … DEFENDAN - (NO. K/P: 790907-10-5089) DEFENDAN
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In deciding Enclosure 3 (“this Application”), the Plaintiffs’ application for a prohibitory injunction, I have taken into consideration the following requirements necessary for the grant of an interlocutory injunction (American Cyanamid Co. v. Ethicon Ltd [1975] AC 396): i) Whether there is a serious question or issue to be tried; ii) Whether the balance of convenience lies in favour of the applicant; and iii) Whether damages are an adequate remedy.
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And additionally, whether the Plaintiffs/Applicants undertaking as to damages is sufficient.
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On the issue of whether there is a serious question or issue to be tried, with respect, I find that there are no serious issues to be tried for, inter alia, the following reasons and issues: i) The Plaintiffs’ claim is essentially directed at the Liquidator for alleged wrongful acts done by them (as joint tortfeasors or otherwise) although said to be together or in concert with or with the involvement of the other Defendants here. Therefore, the issue here is the absence of the Liquidator in this action. ii) In this regard the Plaintiffs have already applied in the Shah Alam High Court (Insolvency Division) for leave to commence action against the Liquidator which leave application has yet to be heard or decided. iii) The reliefs sought in this Application and present suit are essentially against the decisions made by the Liquidator and Page 3 of 5 this would in turn have the effect of impeding the acts of the Liquidator, who are not parties here, from carrying out their function (Teow Guan & Ors v Liquidators of Kian Joo Holdings Sdn. Bhd. (in liquidation) & Ors [2007] 2 MLRA 717). Due process must be adhered to before this can be done. iv) Also, the Plaintiffs’ right over the properties in question is also an issue.
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Even if I am mistaken that there is a serious issues to be tried, nevertheless, I also find that the Plaintiffs have not satisfied the Court that the balance of convenience lies in favour of the Plaintiffs/Applicants. The Turnkey Project (Turnkey Construction Agreement) would be affected by the injunction sought and the Court takes into account the rights of the many as against the rights of the few.
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On the issue of adequacy of damages, I find that damages is an adequate remedy and that the Plaintiffs’ claim, even if they succeed, can be remedied with damages or a sum of money.
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On the issue of undertaking as to damages I find that the Plaintiffs have not provided sufficient evidence to support their undertaking that if the injunction sought is later set aside or dismissed the Plaintiffs would be in the financial position to compensate the Defendants.
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For the following broad reasons Enclosure 3 is dismissed with costs. Dated this 25th day of October, 2024 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) Page 4 of 5 COUNSEL FOR THE PLAINTIFFS Yap Boon Hau (Yeap Chi Cheng and Tiew Kelly together with him) Messrs Mah-Kamariyah & Philip Koh 3A07, Blok B, Phileo Damansara II, 15, Jalan 16/11, Off Jalan Damansara, 46350 Petaling Jaya, Selangor Tel: 03-79568686 Emel: general@mkp.com.my COUNSEL FOR THE 1ST AND 4TH DEFENDANTS Dipendra Harshad Rai (Tong Joe Jye together with him) Messrs Ramesh Dipendra Jeremiah Law No. 9-2, Level 2, Jalan Medan Setia 1, Plaza Damansara, Bukit Damansara, 50490 Kuala Lumpur Tel: 03-20956505 Emel: info@rdj-law.com COUNSEL FOR THE 2ND, 3RD, 5TH, 6TH AND 7TH DEFENDANTS Eunice Ong (Ng Wei Ying together with her) Messrs Eunice Derek & Co. Suite B-06-02, 6th Floor, Gateway Corporate Suites, No.1 Jalan Desa Kiara, 50480 Mont Kiara, Kuala Lumpur Tel: 03-62014087 Emel: eunice@edco-lawyer.com Page 5 of 5 SOLICITOR FOR THE LIQUIDATOR AS A “AMICUS CURIAE” - IBAIMAS SDN BHD Ravichandaran Selliah (Dheenish Thevandran together with him) Messrs S Ravichandaran & Anuar B-05-06 & B-05-07, Gateway Kiaramas, Block B, Jalan Desa Kiara 50480 Kuala Lumpur Tel: 03-62119188 Emel: sralaw_kl@yahoo.com
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