Hun Tee Siang (Menyaman Atas Kapasitinya Sebagai Pemegang Jawatan Di Persatuan Penduduk Country Heights Damansara, Kuala Lumpur) v MEGA PALM SDN. BHD. (WA-22NCvC-371-07/2022)

MEGA PALM SDN. BHD. (No. Syarikat: 388170-M)

COUNTRY HEIGHTS PROPERTIES SDN. BHD. (No. Syarikat: 312142-M) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (re Application for Injunctions) Introduction [1] The issues that arose for determination in this case were about the issuance of an interim mandatory injunction together with a Mareva injunction pursuant to an ex-parte application, and whether both injunctions ought to be extended until final disposal of the action. [2] In January 2021, the Plaintiffs herein had filed an Originating Summons. They then included, in the same Notice of Application (Enclosure 6), prayers for an interim mandatory injunction to compel the Defendants to pay a sum of RM1.75million into Court within 30 days as 03/11/2024 14:53:57 WA-22NCvC-371-07/2022 Kand. 256 S/N qjL/God9xkOa/UJxURyccg well as a Mareva injunction to restrain the Defendants from dealing with their assets. [3] The Plaintiffs’ application (Enclosure 6) was heard ex-parte on 27th January 2021 by Ahmad Zaidi J (as His Lordship then was) who issued the two said injunctions. On 10th February 2021 when counsel for both sides appeared before him, His Lordship decided to extend the ex-parte injunctions by way of an Ad Interim Order pending full inter-parte hearing). Though the Defendants had complied with the mandatory injunction by paying RM1,750,000.00 into Court, they were aggrieved and filed their said application (Enclosure 32) to set aside both injunctions. [4] Enclosure 6 and Enclosure 32 were actually heard by different judges but for reasons irrelevant for the purpose of this judgment, those two interlocutory applications were not disposed of earlier till they were heard inter-parte by me this year. Two relevant facts are that my predecessor Rozana Ali Yusoff J ordered the Originating Summons to be converted to a Writ action on 2nd June 2022, and further extended the Ad Interim Order containing the two interim injunctions pending the disposal of Enclosure 6 and Enclosure 32 respectively. [5] The Plaintiffs had also filed a Notice of Application (Enclosure 188) on 27th October 2023 for leave to file further affidavits in respect of those two applications after written submissions had been filed and exchanged by both sides. I declined to grant leave, and due to an appeal filed by the Plaintiffs, I had rendered my Grounds for that decision (see [2024] 6 CLJ 56 or [2024] MLJU 817). S/N qjL/God9xkOa/UJxURyccg [6] After hearing Enclosure 6 and Enclosure 32 together, my decision was to maintain the interim mandatory injunction until disposal of this civil suit and to set aside the interim Mareva Injunction, with costs in the cause. [7] The result of my aforesaid decision for the Plaintiffs’ application (Enclosure 6) was that their prayer for the interim mandatory injunction was allowed while the prayer for a Mareva Injunction was dismissed. The correlated result for the Defendants’ application (Enclosure 32) was a dismissal of their prayer to set aside the interim mandatory injunction while their prayer to set aside the interim Mareva Injunction was allowed. Both sides have appealed. The reasons for my said decision are as explained below. Background Facts [8] The 1st Plaintiff is suing in his capacity as an office-bearer of an association known as Persatuan Penduduk Country Heights Damansara Kuala Lumpur which members are owners of bungalow lots in a housing project known as Country Heights Damansara (“the Project”) in Kuala Lumpur. The other Plaintiffs are all purchasers of houses in the Project. [9] The 1st Defendant is a wholly owned subsidiary of the 2nd Defendant, which in turn is a wholly owned subsidiary of Country Heights Holdings Bhd. The Defendants are the developers of the Project. [10] Nine years ago in year 2015, Civil Suit No.22NCvC-698-12/2015 (“Suit No.698”) was filed by one Teoh Seow Chiew (in her capacity as an office-bearer of the 1st Plaintiff) and 39 other plaintiffs against the Defendants for failing to complete the construction of essential basic S/N qjL/God9xkOa/UJxURyccg infrastructure for the Project to be handed over to the appropriate authorities, inter alia, Dewan Bandaraya Kuala Lumpur (“DBKL”), Syarikat Bekalan Air Selangor Sdn Bhd (“SYABAS”) and Tenaga Nasional Berhad (“TNB”). [11] On 16th May 2017, a Consent Order (“the said Consent Order”) was recorded in Suit No.698, to record the parties’ agreement to be bound by the following lengthy terms of settlement:- “(1) The Defendants are under an obligation to maintain the Basic Infrastructures (including the services roads, water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur and street lights) in Country Heights Damansara (“CHD”) until the Basic Infrastructures are handed over to the Appropriate Authorities, including Dewan Bandaraya Kuala Lumpur (“DBKL”), Syarikat Bekalan Air Selangor Sdn Bhd (“SYABAS”) and Tenaga Nasional Berhad (“TNB”);

The Defendants area under an obligation to make payment to TNB and SYABAS for the outstanding utility bills in CHD until the Basic Infrastructures (including the services roads, water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 to the Appropriate Authorities, including DBKL, SYABAS and TNB;

The Defendants shall handover the Basic Infrastructures (including the services roads, water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala S/N qjL/God9xkOa/UJxURyccg Lumpur and street lights) in CHD to the Appropriate Authorities, including DBKL, SYABAS and TNB on or before 31 August 2017;

The Defendants shall continuously maintain the Basic Infrastructures (including the service roads, water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur and street lights) in CHD until the Basic Infrastructure are headed over to the Appropriate Authorities, including DBKL, SYABAS and TNB;

The Defendants shall make payment to TNB for all outstanding utility bills in CHD, Including the electricity bill for the water pump house at Lot 826 pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur and electricity bill for street lights;

The Defendants shall make payment to SYABAS for all outstanding utility bills in CHD, including the water bill for the water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur;

The Defendants shall make payment to TNB for all utility bills in CHD within the timeframe stipulated by TNB until the Basic Infrastructures (including the services roads, water pump house at Lot 826 Pump Service Corridor pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur and street lights) are handed over to the Appropriate Authorities including DBKL, SYABAS and TNB;

The Defendants shall make payment to SYABAS for all utility bills in CHD within the timeframe stipulated by SYABAS until the Basic S/N qjL/God9xkOa/UJxURyccg Infrastructures (including the roads, water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur and street lights) are handed over to the Appropriate Authorities including DBKL, SYABAS and TNB;

The Plaintiffs will apply to the Appropriate Authorities for consent to change the land currently marked as open space use into community centre use. The Defendants will do all that is necessary to support the said application. The Defendant shall bear the costs for the said change of use in land, if any, up to RM10,000.00. In the event that the costs for the said change of use is more than RM100,000.00, the excess sum shall be borne by the Parties equally. The Defendants will also relocate the existing structure of the Resource Centre situated on Master Title GRN 72272, Lot No. 65630, Mukim Batu, Kuala Lumpur (“Master Title Lot No.65630”)(on parcels no.7 and 9)(copy of title and plan attached) to the said land after consent is obtained to the change of use to community centre use at their own costs. All connection and utility costs (water and electricity) will be borne by the Plaintiffs;

The Plaintiffs are allowed to remain on the lands where the Resources Centre is currently located (on parcels no.7 and 9 of Master Title lot No. 65630) and make use of the Resources Centre until such time as the approval for community centre land is obtained from the Appropriate Authorities and the Resources Centre structure is moved thereto;

The Defendants shall pay special damages amounting to RM41,625.15 being the payment made by Country Heights S/N qjL/God9xkOa/UJxURyccg Damansara, Kuala Lumpur Residents’ Association (“CHDRA”) on behalf of the Defendant for the outstanding electricity bills from October 2014 to March 2015 for the water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur;

The Defendants shall pay special damages amounting to RM954.00 being the payment made by CDHRA for the rental of the generator for the water pump house at Lot 826 Pump Service Corridor Pump House, Kg Bkt Lanjan, Sg Penchala 60000 Kuala Lumpur;

The Defendant shall pay special damages amounting to RM329.95 being the payment made by CHDRA for the delivery of 3 truck-loads of water to service the residents of CHD; and

Interest at the rate of 5% per annum from the date of this Order until full settlement.” [12] It was undisputed that the Defendants failed to fully comply with the said Consent Order – which led to various steps being taken by the Plaintiffs to attempt enforcement of the said Consent Order, one of which was to commence proceedings to cite the Defendants and their directors for contempt of court. [13] Pursuant to the Plaintiffs’ application in Suit No.698, Nazlan GhazaliJ (as His Lordship then was) issued a committal order against the Defendants on 13th August 2021 after finding both Defendants and their two directors, namely Lee Cheng Wen and Lee Thai Young Matahari, to S/N qjL/God9xkOa/UJxURyccg have been in contempt of court for refusing to comply with the said Consent Order. [14] In the absence of a Court of Appeal’s order to set aside the committal order, the aforesaid finding of contempt was final and is binding on this Court. [15] Justice Nazlan Ghazali’s judgment was reported in Teoh Seow Chiew (menyaman atas kapasitinya sebagai pemegang jawatan Persatuan Kediaman Country Heights Damansara Kuala Lumpur) & 39 Ors v. Mega Palm Sdn. Bhd. & Anor [2021] MLJU 2683. Relevant passages from His Lordship’s judgment shall be quoted below as I discuss the merits of the Plaintiffs’ application for two interim injuntions. The Plaintiffs’ Grounds for seeking an Interim Mandatory Injunction & Mareva Injunction [16] The Plaintiffs’ cause of action was based on the said Consent Order which the Defendants had evidently yet to fully comply. [17] In their supporting affidavits, the Plaintiffs averred that at least RM1.75 million would be required for them to hire contractors to complete outstanding works which the Defendants undertook in the said Consent Order. As mentioned above, their application (Enclosure 6) included prayers for an interim mandatory injunction to compel the Defendants to pay a sum of RM1.75million into Court within 30 days as well as a Mareva injunction to restrain the Defendants from dealing with their assets. The particulars of their calculation amounting to about RM1.75million were shown in their supporting affidavit, as follows: S/N qjL/God9xkOa/UJxURyccg [18] Also, as mentioned above, the Plaintiffs’ counsel managed to convince Justice Ahmad Zaidi to issue an Ad interim order to extend both interim injunctions that they sought, subject to the usual undertaking to pay damages to the Defendants if this Court should so order in the future. [19] As authorities in support of their application, the Plaintiffs cited, inter alia, Kong Peng Pew & Others v. Meru Valley Resort Berhad 5 [2003] MLJU 242 and Tinta Press Sdn. Bhd. v. Bank Islam Malaysia Bhd [1987] 1 MLJ 192. The Plaintiff’s learned counsel relied on Gibb & Co. v. Malaysia Building Society Bhd [1982] 1 MLJ 271 wherein the Federal Court ruled that an interim mandatory injunction could be issued when the facts of the case and circumstances warrant it. [20] The Plaintiffs had, by relying on disclosures made in the audited reports of the Defendants to make the following averments about the financial position and the lack of action by the Defendants to comply with the said Consent Order. In para 34.3 of the Plaintiffs’ supporting affidavit, it was deposed as follows: S/N qjL/God9xkOa/UJxURyccg [21] The Plaintiffs’ learned counsel further submitted that though the sale of Lot 65630 by the Defendants had yielded RM54.25 million, they had failed to utilise the sale proceeds to fully comply with the said Consent Order. [22] It was also highlighted by the Plaintiffs that the 1st Defendant has been actively trying to sell its last plot of land, known as Lot 183, in the Project, by advertising and showing prospective buyers the said lot on several occasions. These facts were averred in para 34.8 of the Plaintiffs’ supporting affidavit, as follows: S/N qjL/God9xkOa/UJxURyccg [23] The evidence of the Defendant’s unequivocal intention to dispose of its last plot of land within the Project was cited as evidence of intention to dissipate assets for the purpose of avoiding compliance with the said Consent Order and other orders that might be issued in the future by this court. [24] Another piece of evidence that was adduced in support of the risk of dissipation of assets was the diminishing value of the Defendants’ net assets. The Defendants’ affidavit averred at para 34.4 that the 2nd Defendant’s net assets had been reduced from RM8,885,591 to RM1,796,097 within two years, between 31st December 2017 and 31st December 2019, as follows: S/N qjL/God9xkOa/UJxURyccg [25] The gist of the Plaintiffs’ submissions was that since the said Consent Order remains valid and the Defendants had been held to be in contempt of court for ignoring it, the Plaintiffs are entitled to the injunctions sought, to ensure that the said Consent Order is eventually complied by the Defendants. [26] Learned counsel for the Plaintiffs insisted that both the mandatory injunction and the Mareva injunction are needed to protect the Plaintiffs’ interest while awaiting the trial of their civil suit. The Defendants’ Grounds for applying to set aside the Interim Mandatory Injunction & Mareva Injunction [27] As mentioned above, the Defendants did comply with the interim mandatory injunction issued by Justice Ahmad Zaidi by paying RM1,750,000.00 into Court within 30 days. However, they filed their said application (Enclosure 32) to set aside both injunctions that were ordered ex-parte, on the ground that those interim injunctions should not have been obtained by the Plaintiffs in the first place. [28] The Defendants submitted that the requirements for the issuance of a Mareva Injunction were not met by the Plaintiffs. [29] As for the interim mandatory injunction, the Defendants submitted that this Court has no jurisdiction to issue an interim mandatory injunction that required a defendant to pay into Court a substantial sum of money. Their argument is that it would be tantamount to giving undue preference to the Plaintiffs, to the detriment of other creditors, etcetera, that this suit S/N qjL/God9xkOa/UJxURyccg is an abuse of process of court and the said Consent Order created an estoppel to prohibit a new action from being filed. [30] It was also submitted that the Plaintiffs did not prove that a sum of RM1.75 million would be required to complete the outstanding works which the Defendants had undertaken in the said Consent Order to complete. Analysis of the Facts and Law [31] First, on the locus standi of the 1st Plaintiff to commence this action, I found that as the public officer of Persatuan Penduduk Country Heights Damansara, he was authorised by S.9(c) Societies Act 1966 to do so. The said S.9(c) reads: “a society may sue or be sued in the name of such one of its members as shall be declared to the Registrar and registered by him as the public officer of the society for that purpose, and, if no such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office-bearer of the society;” [32] The general principles for the issuance of an interim injunction in Malaysia had been discussed umpteen times in reported judgments. The most oft-quoted passages are from the judgment of the Court of Appeal in Keet Gerald Francis Noel John v. Mohd Noor @ Harun Abdullah [1995] 1 CLJ 293. Therein, guidance on the general inquiry to be undertaken when hearing an interlocutory injunction application, was worded as follows: “[3] A Judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines: S/N qjL/God9xkOa/UJxURyccg

firstly, he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried;

having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case;

the Judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo.” [33] Since the Plaintiffs’ application was for an interim mandatory injunction as well as a Mareva injunction, I had to consider the application as if there were two separate applications. It was also necessary for me to consider whether an interim mandatory injunction could be granted, and if yes, whether it ought to be granted in addition to, or in lieu of a Mareva injunction. The Law on Mareva Injunctions [34] There are statutes that specifically empower the Police and some government regulatory bodies to restrain the dissipation of assets pending investigation, for example, by ordering bank accounts to be frozen and entering a registrar’s caveat to block the registration of transfer of real properties. Those are applicable in the arena of criminal law. In civil cases, the invention of “Mareva injunction” was a brilliant move as it works by S/N qjL/God9xkOa/UJxURyccg restraining a defendant from taking any steps that would result in the dissipation of his assets pending the disposal of a civil suit, or until further order, as the case may be. [35] Though third parties, for example, commercial banks where a defendant maintains his bank accounts, are not named as parties in a civil suit, they would freeze the defendant’s accounts when served with a copy of a Mareva injunction – so as to avoid assisting a defiant defendant from acting in violation of the prohibitory injunction. [36] “Mareva injunction” acquired its name from the English judgment of Mareva Compania Naviera SA v. International Bulk Carriers [1980] 1 All ER 213. It is not something new in Malaysia as some four decades ago in 1984, our Federal Court in Zainal Abidin bin Haji Abdul Rahman v. Century Hotel Sdn Bhd [1982] 1 MLJ 260 had held that the superior courts in Malaysia have the jurisdiction to issue this type of injunctions. That was reaffirmed by the Federal Court in S & F INTERNATIONAL LIMITED v. TRANS-CON ENGINEERING SDN BHD [1985] 1 MLJ 62 which described Mareva injunctions as a: “species of interlocutory injunction which restrains a defendant by himself or by his agents or servants or otherwise from removing from the jurisdiction or disposing of or dealing with those of his assets that will or may be necessary to meet a plaintiff's pending claim.” [37] Needless to say, if a defendant succeeds in dissipating his assets before final judgment could be entered against him, the plaintiff would ultimately be left with a ‘paper judgment’, i.e. a judgment not even worth the paper it is printed on. As could be seen from the standard wording of a Mareva injunction, its purpose is to restrain a defendant, who knows he S/N qjL/God9xkOa/UJxURyccg has a weak defence, from dissipating his assets before a court could issue a final judgment against him. A Mareva injunction is intended to cover the ‘gap period’ between the issuance of the injunction and the final disposal of the civil suit because court process inevitably takes time, especially when a trial with the calling of multiple witnesses is necessary. To borrow the analogy used by English judges: it is to shut the stable door before the horse has bolted. [38] As a Mareva injunction is a special species of interim prohibitory injunction, there are special requirements to be met. The three essential requirements for the issuance of a Mareva injunction set out by the Supreme Court in Creative Furnishing Sdn Bhd v. Wong Koi [1989] 2 MLJ 153 were applied in Biasamas Sdn Bhd v. Kan Yang Heng [1998] 4 MLJ 1 by the Court of Appeal and a string of cases in Malaysia. Those three requirements could be summed up as follows: first, the plaintiff must be able to show a good arguable case, secondly, that the defendant has assets within the jurisdiction, and thirdly, that there is a real risk of the defendant’s assets being dissipated or removed out of the jurisdiction of this Court before judgment. [39] The first requirement of having to show a good arguable case was explained in detail by the Court of Appeal in Hock Hua Bank (Sabah) Bhd v. Yong Liuk Thin [1995] 2 MLJ 213 in an elucidating judgment. I can do no better than to quote the following passages:- “ In the present case there is an added consideration. The appellants were, as I surmise, applying for a Mareva injunction. As such, the relative strength or weakness of the defence filed during the very early stages of the action is extremely relevant in assessing whether the plaintiff has an S/N qjL/God9xkOa/UJxURyccg arguable case. It is a higher standard than that applicable to the usual application for an injunction. (See The Tatiangela [1980] 2 Lloyd's Rep 193.) That this ought to be so is not in the least surprising: for the allegation made is that there is a risk of the defendant dissipating his assets with a view to defeating any judgment that the plaintiff may obtain against him. Since the relief is postulated upon a plaintiff's success in the main action, for example, damages, it is only right and proper that the strength of his case be tested to ascertain how high the probabilities lie in favour of his ultimate success. The higher the degree of success, the greater is the need to protect that event by ensuring that he does not get a judgment that is as good as writ on running water. This, then, is the philosophy of the Mareva jurisdiction as distilled from the authorities upon the subject.” “When a judge comes to assess the strength of a plaintiff's case, it is a natural and essential part of that exercise to undertake an examination of the defences taken to the main action. The stronger the defence on its face, the less likely that the plaintiff will succeed in his action; and less the reason to grant him interim protection. To invert the proposition, the weaker the defence on its face, the greater is the probability of the plaintiff's success in getting his judgment. That in my view is the correct approach to be adopted.” “The court, when exercising the jurisdiction that is seised of, is required to conduct a balancing exercise in order to do justice to the parties. Imposing a restraint upon a man from dealing with what is prima facie his property is a very serious matter indeed. It is for that reason that equity requires the parties to submit their respective cases to a critical scrutiny by the court. In the end, it is a matter that depends upon the particular factual matrix that S/N qjL/God9xkOa/UJxURyccg lies before the judge and upon his assessment of where the justice of the case lies.” The Law on Interim Mandatory Injunctions [40] Though rarely issued, I found that there is actually no doubt about the jurisdiction of this Court to issue interim mandatory injunctions. More pertinent are the principles to be applied in deciding whether an interim mandatory injunction ought to be granted because as the word “interim” suggests, the mandatory injunction is meant to be operative for the period of time pending the disposal of the Plaintiffs’ substantive claim. [41] I found guidance from the following passages of the Federal Court’s judgment in Gibb & Co. v. Malaysia Building Society Bhd [1982] 1 MLJ 271: “there is no reason why interlocutory or indeed interim mandatory injunctions should not issue in proper and appropriate cases and the court has jurisdiction to so order. Fry L.J., said in Bonner v Great Western Railway Company … the court must feel a high degree of assurance that at the trial a similar injunction would probably be granted but we should observe that questions of degree are involved which depend, inter alia, upon considerations of hardship to the parties. … courts of equity will consider how the interests of the parties may best be protected, bearing in mind both the position of the parties subsequently at the final hearing and also questions of hardship and inconvenience in the S/N qjL/God9xkOa/UJxURyccg meantime, and will take into account any other relevant discretionary considerations which may arise.” [42] I also found the judgment of the Court of Appeal in Foong Seong Equipment Sdn Bhd (receivers and managers appointed) v. Keris Properties (PK) Sdn Bhd (No.2) [2009] 5 MLJ 393 to be instructive on the subject of interim mandatory injunctions ought to be issued. Low Hop Bing JCA (as he then was) followed Gibb & Co. v. Malaysia Building Society Bhd (supra) and opined as follows: “The Federal Court, speaking through Eusoffe Abdoolcader J (later SCJ) enunciated the relevant principles governing the grant or refusal of an interlocutory mandatory injunction. These principles may be extracted as follows:

An interlocutory application for a mandatory injunction is a very exceptional form of relief: Canadian Pacific Railway v Gaud [1949] 2 KB 239 at p 249;

There is no reason why interlocutory or indeed interim mandatory injunctions should not issue in proper and appropriate cases and the court has jurisdiction to so order: Bonner v Great Western Railway Company (1883) 24 Ch 1 at p 10;

The applicant’s case must be ‘unusually sharp and clear’, and the court must feel a high degree of assurance that at the trial a similar injunction would probably be granted; the questions of degree would depend, inter alia, upon considerations of hardship and inconvenience to the parties: Shepherd v Sandham [1971] Ch 304;

In addition, courts of equity will take into account other relevant considerations which may arise eg:

how the interests of the parties may best be protected; S/N qjL/God9xkOa/UJxURyccg

ease or difficulty with which a mandatory order and the extent of hardship which compliance will cause to the respondent; and

the nature of the injury which will be caused to the applicant if he does not obtain protection at once: Strelley v Pearson (1880) 15 Ch 113 at p 117;

The stronger the applicant’s case that the matters complained of are unlawful, the more likely it is that it will be just and equitable that his interest will be protected by the immediate issue of an injunction: Reverting to the mainstream of the instant appeal, the defendant cannot refuse to comply with the provisions of the JVA which the parties had voluntarily entered into and pursuant to which the defendant has received benefits. The defendant is estopped from repudiating the burden imposed on it: Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd and Anor [1989] 2 MLJ 202, per Edgar Joseph Jr J (later FCJ). The bona fide purchasers who have signed the SPAs must not be made to suffer undue hardship and inconvenience as they had to obtain financing from their banks or financial institutions, and ultimately take vacant possession from the plaintiff. As developer, the plaintiff is required to diligently proceed to complete the development project within the time specified in the SPAs, because upon the execution thereof, time effectively started to run against the developer: As the defendant’s conduct had clearly caused hardship and inconvenience not only to the plaintiff but also the plaintiff’s purchasers, the courts will intervene and allow an interlocutory S/N qjL/God9xkOa/UJxURyccg injunction even when it is one of a mandatory nature: The Principles of Equitable Remedies at pp 435, 454 and 455, Miller v Jackson (CA) per Cumming-Bruce LJ and Gall v Mitchell, (HC of Australia). It is clearly inequitable and unconscionable for the defendant to have enjoyed the benefits under the JVA, and yet refused to comply with the obligations to execute the transfer documents, thereby denying the plaintiff and the plaintiff’s purchasers of their corresponding the rights and interests which therefore require immediate protection by way of an interlocutory mandatory injunction. On the foregoing grounds, I hold that the plaintiff has established an unusually sharp and clear case of hardship and inconvenience and has satisfied the principles set out by the Federal Court in Gibb & Co.” [43] It is my judgment that the Plaintiffs had proven in their affidavits that they have shown a good arguable case since Justice Nazlan had held the Defendants to be in contempt of court for failing to fully comply with the said Consent Order. This was enunciated with the following words in His Lordship’s judgment, at para [123] thereof: [44] There was also no doubt that the Defendants own assets within the jurisdiction of this court. Besides the money in their bank accounts, the 1st Defendant still owns a last plot of land, known as Lot 183, in the Project. S/N qjL/God9xkOa/UJxURyccg [45] As to whether there is a real risk of the Defendants’ assets being dissipated or removed out of the jurisdiction of this court before judgment, the Plaintiffs have proven that the 1st Defendant was actively seeking to sell its “last plot of land” after having sold Lot 65630 for a handsome sum but yet failed to utilise the sale proceeds to fully comply with the said Consent Order. There was no cogent evidence to explain the disposal of the sale proceeds from Lot 65630. The fact that the net value of the Defendants have been dwindling over the years is also factor pointing towards a propensity to dissipate assets before the trial of this civil suit could be concluded. [46] Next, I move on to consider whether the facts of this case would justify the issuance of an interim mandatory injunction. [47] With the judgment of Nazlan Ghazali J (as His Lordship then was) – as cited above – unequivocally declaring that the Defendant and its directors are in contempt of court for failing to comply with the said Consent Order, I had no difficulty in concluding that the Plaintiffs’ case is “unusually sharp and clear” – to quote the Court of Appeal in Foong Seong Equipment Sdn Bhd (supra). [48] The need for a mandatory injunction is further amplified by the fact that the 1st Defendant was actively seeking to sell its “last plot of land” after having sold Lot 65630 for a handsome sum – but yet failed to utilise the sale proceeds to fully comply with the said Consent Order. I found that this is certainly a valid ground for the Plaintiffs to seek interim relief because Lot 65630 was specifically mentioned in paragraph 9 of the S/N qjL/God9xkOa/UJxURyccg said Consent Order as the current location of a Resource Centre that the Defendants undertook to relocate. [49] Hence, I also felt “a high degree of assurance that at the trial a similar injunction would probably be granted”, to quote the words of our Federal Court in Gibb & Co. v Malaysia Building Society Bhd (supra). [50] Be that as it may, I am aware that the law requires me to consider the hardship and inconvenience to the parties, how the interests of all the parties may best be protected pending trial, to weigh the ease or difficulty with which the mandatory injunction, as sought, could be complied with, i.e. the extent of hardship which compliance will cause to the Defendants. It was an onerous balancing act to consider whether irreparable damage would be caused to the Plaintiffs if the Mareva Injunction and interim mandatory injunction issued ex-parte by Justice Ahmad Zaidi were not extended until the trial of this civil suit. [51] Looking deeper into the undisputed facts of this case, the solution would be for the Defendants to buck up and complete the outstanding works as soon as possible – so as to comply with the said Consent Order without further delay. In the event of the Defendants still failing to do so by the time of the trial of this civil suit, the final remedy for the Plaintiffs would be for this Court to award monetary judgment, i.e. ordering the Defendants to pay the Plaintiffs sufficiently for the outstanding works to be completed by contractors to be appointed by the Plaintiffs. [52] For the avoidance of doubt, I am not ruling that there is no triable issue in this civil suit – especially since Justice Rozana Yusoff had found S/N qjL/God9xkOa/UJxURyccg fit to convert the proceedings from an Originating Summons into a civil suit. The Plaintiffs still bear the burden to prove the amount of works that are still outstanding and the sum of money required to pay contractors to complete them satisfactorily. The Plaintiffs still need to prove the amount of works that are still outstanding because it is an undisputed fact that the Defendants did commence works after the said Consent Order was recorded but after some sporadic efforts, had yet to complete the job – causing the Plaintiffs to feel much aggrieved to be left waiting for years after the said Consent Order was recorded on 16th May 2017. [53] As mentioned above, the sum of RM1.75 million ordered in the interim mandatory injunction issued ex-parte by Justice Ahmad Zaidi was a figure that emanated from the Plaintiffs’ calculation as the amount required to complete the outstanding works, and the Defendants had complied by paying RM1,750,000.00 into Court. [54] As was reiterated in Foong Seong Equipment Sdn Bhd (supra), “An interlocutory application for a mandatory injunction is a very exceptional form of relief”. This is because the effect of such an injunction is akin to granting judgment summarily in favour of a plaintiff. In cases where there is no triable issue, Order 14 permits a court to grant summary judgment. Though there may still be a triable issue, the unusually sharp and clear facts in some rare cases could render it fair and just for an interim mandatory injunction to be issued, so that the plaintiff would not end up with an unenforceable judgment. Indeed, the facts of this case present a good example because there is a finding of contempt made by Justice Nazlan against the Defendants – that remains unpurged to this day. S/N qjL/God9xkOa/UJxURyccg [55] Based on the unusually sharp and clear facts of this case, I was convinced that the interim mandatory injunction was justified and ought to be extended until the disposal of this civil suit for the purpose of protecting the interest of the Plaintiffs in the said Consent Order. [56] As for whether the Mareva injunction should be extended or set aside, I was concerned that it would be an ‘overkill’ and oppressive if the interim Mareva injunction was to be extended too. By way of analogy, the interim Mareva Injunction coupled with the interim mandatory injunction had the effect of tying up the hands as well as the legs of the Defendants. How were they expected to complete the outstanding works if it is unclear whether they could not touch their assets at all or are allowed to touch only deposits in bank accounts with more than RM1 million? The ex-parte interim Mareva Injunction, in terms of the Plaintiffs’ prayer, did indeed had such a draconian effect, for it was worded as follows:- [57] The fundamental principle is as stated by the Federal Court in Alor Janggus Soon Seng Trading v. Sey Hoe Sdn Bhd [1995] 1 MLJ 241: “…the grant or refusal of an interlocutory injunction must be decided on the fundamental principle that the court should take whichever course that appears to carry the lower risk of injustice.” S/N qjL/God9xkOa/UJxURyccg S/N qjL/God9xkOa/UJxURyccg Counsel for the Plaintiffs: Nicholas Ooi Boon Seng (Natalie Ooi Wan Qing with him) SOLICITORS FOR THE PLAINTIFFS: MESSRS OOI & OOI. Advocates & Solicitors 8-03, Level 8, Menara MBMR 1, Jalan Syed Putra, 58000 KUALA LUMPUR. Counsel for the Defendants: Victor Pang Chee Siong SOLICITORS FOR THE DEFENDANTS: MESSRS JUSTIN VOON CHOOI & WING Advocates & Solicitors D6-5-13A, Bangunan Perdagangan D6, 801, Jalan Sentul, 51000 KUALA LUMPUR. S/N qjL/God9xkOa/UJxURyccg CASES REFERRED TO:

Teoh Seow Chiew (menyaman atas kapasitinya sebagai pemegang jawatan Persatuan Kediaman Country Heights Damansara Kuala Lumpur) & 39 Ors v. Mega Palm Sdn Bhd & Anor [2021] MLJU 2683.

Kong Peng Pew & Others v. Meru Valley Resort Berhad 5 [2003]

Tinta Press Sdn. Bhd. v. Bank Islam Malaysia Bhd [1987] 1 MLJ 192.

Gibb & Co. v Malaysia Building Society Bhd [1982] 1 MLJ 271.

Keet Gerald Francis Noel John v. Mohd Noor @ Harun Abdullah [1995] 1 CLJ 293.

Mareva Compania Naviera SA v. International Bulk Carriers [1980] 1 All ER 213.

Zainal Abidin bin Haji Abdul Rahman v. Century Hotel Sdn Bhd [1982]

S & F International Limited v. Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 9. Creative Furnishing Sdn Bhd v. Wong Koi [1989] 2 MLJ 153.

Biasamas Sdn Bhd v. Kan Yang Heng [1998] 4 MLJ 1.

Hock Hua Bank (Sabah) Bhd v. Yong Liuk Thin [1995] 2 MLJ 213

Foong Seong Equipment Sdn Bhd (receivers and managers appointed) v. Keris Properties (PK) Sdn Bhd (No.2) [2009] 5 MLJ 393

Alor Janggus Soon Seng Trading v. Sey Hoe Sdn Bhd [1995] 1 MLJ

241.

S.9(c) Societies Act 1966

Order 14 Rules of Court 2012 S/N qjL/God9xkOa/UJxURyccg