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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN NO.: WA-22NCvC-242-04/2021 Antara
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WA-22NCvC-242-04/2021
High Court of Malaysia26 Feb 2025
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“(f) Nik James Ferrie Arkitek v. Tenaga Gagah Sdn. Bhd. (Kuh Cho Sen & Ors. applicants) [2015] MLJU 2346 paras. 12 & 13 (High Court); and”
“(g) RD Resources Sdn. Bhd. v. CWM Group Sdn. Bhd. [2020] MLJU 1164 paras. 14 – 16 (High Court). Submissions of the Plaintiffs [9] Enclosure 140 was duly served on the 1st Defendant’s solicitor on 20.2.2024 and the 1st Defendant filed the Affidavit in Reply after m”
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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN NO.: WA-22NCvC-242-04/2021 Antara
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Global Maritime Ventures Berhad (No. Syarikat: 264557-A)
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GMV Borcos Sdn Bhd (dalam likuidasi sukarela) (No. Syarikat: 871370-H) …Plaintif-Plaintif
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Izlin binti Ismail (selaku pentadbir harta pusaka Mohd Zafer Mohd Hashim) (No. Kad Pengenalan: 720526-02-5030) Mohd Zafer Mohd Hashim (No. Kad Pengenalan: 720704-71-5115)
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Sidqi Ahmad Said bin Ahmad (No. Kad Pengenalan: 710718-02-5183)
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AWH Equity Holding Sdn Bhd [No. Syarikat: 200401027888 (666396-V)] 05/03/2025 10:44:10
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Wan Hamimie binti Wan Ariff (No. Kad Pengenalan: 710515-03-5306)
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Tetuan Ram Reza & Muhammad (Didakwa Sebagai Sebuah Firma) …Defendan-Defendan
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Malayan Banking Berhad [No. Syarikat: 196001000142 (3813-K)]
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HSBC Bank Malaysia Berhad [No. Syarikat: 198401015221 (127776-V)] … Defendan-Defendan Penzahiran GROUNDS OF DECISION (Enclosure 181: Plaintiffs’ Notes of Objection) BACKGROUND [1] The Notes of Objection filed was in support of the Plaintiff’s objection against the 1st Defendant’s purported Afidavit Jawapan (Permohonan Plaintif untuk Penzahiran Pihak Ketiga) in Enclosure 173 of Izlin Binti Ismail filed on 30.7.2024. [2] The timeline of filing of affidavits was directed by the Court during the case management on 6.3.2024 as follows: the affidavit in reply (afidavit jawapan) to be filed by 25.3.2024 and reply affidavit (afidavit balasan) to be filed by 15.4.2024. [3] The 1st Defendant’s counsel informed Court on the case management date of 20.2.2025 that a response to Enclosure 181 will be filed by 25.2.2025. The Response to Enclosure 181 was subsequently filed on the even date vide Enclosure 187 (Hujah Bertulis Defendan). The hearing of Enclosure 181 shall hereby be dealt with preceding the hearing of Enclosure 140 (Notice of Application for Discovery Against the 3rd Parties). Enclosure 181 [4] By letter dated 15.1.2025, the Plaintiffs filed the Notes of Objection outlined as follows: “2. Pihak kami dengan penuh rendah diri melampirkan Bersama surat ini sesalinan “Notes of Objection” pihak Plaintif-Plaintif bagi tujuan membantah Afidavit Jawapan yang difailkan oleh Defendan Pertama [Kandungan 173] untuk kemudahan rujukan Mahkamah Yang Mulia semasa sesi pendengaran Kandungan 140 pada 17.1.2025 ini.” [5] During the case management of 17.1.2025, the Plaintiffs’ counsel requested for Enclosure 181 to be dealt with after parties attempts to resolve Enclosure 140. At the next case management on 20.2.2025, the specific periods for discovery of documents in Enclosure 140 was outlined as follows: Prayer 2 (i) (b) (d) 1st year acquisition from 18.4.2011 - 18.4.2012 Prayer 2 (ii) (b) (d) 2nd year acquisition from 25.1.2013 - 25.1.2014 Prayer 2 (iii) (i) (k) 3rd year acquisition from 19.8.2013 – 19.8.2014 Prayer 4 Leave be given to apply for further documents. [6]
Preamble
Pursuant to the above, the Plaintiffs’ Notes of Submission (in narrowing the scope of reliefs sought under Enclosure 140 – the Plaintiffs’ Discovery Application) was filed in Court with copies of the same extended to all the Defendants. [7] The Court is mindful of the provision in Order 34 rule 2 (2) of the Rules of Court 2012 where at a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings. GROUNDS OF OBJECTION [8] The Plaintiffs referred to a plethora of authorities filed in the Plaintiffs’ Supplementary Bundle of Authorities (Enclosure 182) in respect of the filing of Affidavits out of time as follows:
a
Lum Choon Realty Sdn. Bhd. v. Perwira Habib Bank Bhd. [2003] 4 MLJ 409 at p. 422 para. D (Court of Appeal);
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Sagajuta (Sabah) Sdn. Bhd. v. Trane Malaysia Sales & Services Sdn. Bhd. [2013] 1 LNS 1425 paras. 31 - 34 (Court of
c
Sri Ternak Properties Sdn. Bhd. v. Penerbitan Pertama Sdn. Bhd. & Ors. [2022] 1 LNS 2011 paras. 11 -14 (High Court);
d
Tany Services Sdn. Bhd. v. Hamzah Jaafar (P) Sdn. Bhd. [2020] 1 LNS 1855 para. 15 (High Court);
e
Neptune Aviation Ltd. v. Sheikh Salleh bin Sheikh Abod. & Suasa Airlines Sdn. Bhd. [2018] 1 LNS 1424 para. 30 (High
f
Nik James Ferrie Arkitek v. Tenaga Gagah Sdn. Bhd. (Kuh Cho Sen & Ors. applicants) [2015] MLJU 2346 paras. 12 & 13 (High Court); and
g
RD Resources Sdn. Bhd. v. CWM Group Sdn. Bhd. [2020] MLJU 1164 paras. 14 – 16 (High Court). Submissions of the Plaintiffs [9] Enclosure 140 was duly served on the 1st Defendant’s solicitor on 20.2.2024 and the 1st Defendant filed the Affidavit in Reply after more than 5 months on 30.7.2024 upon receipt of Enclosure 140. [10] The Plaintiffs submit that the 1st Defendant cannot be allowed to have an indefinite amount of time to file the Affidavit in Reply in Enclosure 173. The issue of the said Affidavit in Reply filed out of time was not raised in the Affidavit and the 1st Defendant disregarded the clear directions by the Court, whereby the said Affidavit in Reply was filed without leave of Court. Submissions of the 1st Defendant [11] At the outset, the 1st Defendant submits that the preliminary objection should be dismissed as the filing of the affidavit and the Submissions do not in any way, prejudice the Plaintiff’s Application. There will not be any injustice to the Plaintiff as the Enclosure 140 is being disputed not only by the 1st Defendant, but by all the other defendants. [12] No Prejudice to the Plaintiffs. In raising the objection, the Plaintiff has not demonstrated to this Court how they are prejudiced. Further, the 1st Defendant submits on the timing in raising the Objection that at no point in time did the Plaintiff raised an issue with the delay in the filing of the 1st Defendant’s Affidavit in Reply at the material time. The first indication of an objection came 2 months after the filing of the affidavit when the Plaintiffs were “reserving the right to raise an objection”. The actual objection only came 3 days before the intended hearing date on 17.1.2025. ANALYSIS BY COURT Was there any miscarriage of justice caused to the Plaintiffs? [13] Order 2 rule 3 of the Rules of Court 2012 provides as follows: “Preliminary objection for non-compliance of rules not allowed A court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision of these Rules unless Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both.” [14] In the instant case, the 1st Defendant had not applied for leave of abridgment of time to file the Affidavit in Reply in Enclosure 173 when the Court directed that the affidavit in reply to be filed by 25.3.2024 and the reply affidavit by 15.4.2024. [15] In this respect, the Court is inclined to agree with the submissions of the 1st Defendant that the Plaintiffs did not explain how the delay has caused any substantial miscarriage of justice or occasioned prejudice and that such prejudice cannot be cured. Needless to say, the filing of Enclosure 173 albeit out of time has not caused any substantial miscarriage of justice or occasioned any prejudice to the Plaintiffs. Court or Judge shall have regard to Justice [16] Order 1A of the Rules of Court 2012 reads as follows: 1A Regard shall be to justice (O 1A) “In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules” [17] The provisions in Order 1A and Order 2 rule 3 of the Rules of Court 2012 have been further fortified to ensure that cases (in this case Enclosure 140) are heard on its merits. The Court must consider the overriding interest of justice and not only the technical non-compliance of the rules. (see Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin and other appeals [2017] 5 MLJ 35 para. 5 Court of Appeal). Consequently, the 1st Defendant’s Affidavit in Reply filed in Enclosure 173 (including submissions and bundle of authorities filed in Enclosures 179 & 180 respectively) shall not be expunged or discarded.
para
[18] I have read and perused the Plaintiffs’ Notes of Objection (Enclosure 181) and the Bundle of Authorities (Enclosure 182) filed on 17.1.2025 and the 1st Defendant’s submissions (Enclosure 187) filed on 25.2.2025. [19] Based on the reasons adumbrated above, the Plaintiffs’ Objection in Enclosure 181 is hereby disallowed. The Court shall hear the application in Enclosure 140 on its merits forthwith. No order as to costs. Dated this 26th day of February 2025. Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court (Civil NCvC 13) Kuala Lumpur COUNSEL: For the Plaintiffs: Robert Lazar acting as Counsel for the Plaintiffs Mohd. Wafiy Azman (Wardah Yumna Yunus with him) Messrs Azmi & Associates Kuala Lumpur For the 1st Defendant Shu Ivy Messrs Chetan Jethwani & Company Kuala Lumpur
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