Innotech Labs Sdn Bhd v Seamless X Sdn Bhd (WA-24IP-40-11/2024)

INNOTECH LABS SDN BHD [No. Syarikat.: 200901033010 (876121-X)]

BGN TRADING SDN BHD [No. Syarikat.: 200301016302 618722-V] …PLAINTIF-PLAINTIF

SEAMLESS X SDN BHD [No. Syarikat.: 201801030658 (1292684-W)]

YAP ZHENG LYM [No. KP.: 950327-14-5973] [BERNIAGA SEBAGAI SEAMLESS INDUSTRIES] [No. Syarikat.: 201703032480 (002614302-P)]

AMAZON WEB SERVICES MALAYSIA SDN. BHD. [No. Syarikat.: 201501028710 (1154031-W)] …DEFENDAN-DEFENDAN ! ! ! 3! ! ! GROUNDS OF JUDGMENT (Enclosure 58: The 1st and 2nd Defendants' Application to Set Aside the Court Order in Enclosure 45, for Stay of Execution, Extension of Time, and Conversion to Writ Action) A. INTRODUCTION [1] This is the 1st and 2nd Defendants' Notice of Application via Enclosure 58 seeking the following reliefs:-

That the 1st Defendant be granted an extension of time of 27 days from the date of the expiry for the filing of this Application, i.e., from 19.04.2025;

That the execution of the Court Order dated 13.03.2025 in Enclosure 45 ("the OS Order") be stayed pending the disposal of this Application;

That the OS Order be set aside;

That the OS dated 12.11.2024 (Enclosure 1) be converted to a writ action; and [2] Having read and considered the written submissions of the parties, I dismissed the Application in Enclosure 58 in its entirety with costs. [3] For convenience, I shall refer to the parties as follows:- 4! ! i. The 1st Plaintiff, Innotech Labs Sdn Bhd, and the 2nd Plaintiff, BGN Trading Sdn Bhd, collectively as "the Plaintiffs"; ii. The 1st Defendant, Seamless X Sdn Bhd, as "D1"; iii. The 2nd Defendant, Yap Zheng Lym, trading as Seamless Industries, as "D2"; and iv. The 3rd Defendant, Amazon Web Services Malaysia Sdn Bhd, as "D3" or "AWS". B. BACKGROUND FACTS [4] The background facts of this case, insofar as they are relevant to the present Application, may be briefly stated as follows. [5] The Plaintiffs' claim herein relates to a project known as the Overvoltage Information System ("OVIS"). The OVIS Project is a technological platform designed and developed as a managed services solution to assist customers of Tenaga Nasional Berhad ("TNB") in obtaining monetary compensation for electricity outages or damages arising therefrom caused by overvoltage, pursuant to TNB's legal obligations under the Electricity Supply Act 1990. [6] The OVIS systems are a state-of-the-art and sophisticated cloud-based technological solution comprising multiple applications including the OVIS Portal, OVIS Technician App, OVIS WebView (integrated into the myTNB App), and an OVIS .NET module for integration into the myTNB Portal. The systems are hosted on cloud 5! ! infrastructure provided by D3 (Amazon Web Services Malaysia Sdn Bhd) under AWS Malaysia Server Account No: 737321122604. [7] The 1st Plaintiff is a contractor of TNB and was awarded the OVIS Project pursuant to a Letter of Award and contract between the 1st Plaintiff and TNB. The 2nd Plaintiff is an agent, representative and/or proxy of the 1st Plaintiff. D1 is a private limited company owned by D2 providing technological solutions, and was engaged as the developer of the OVIS systems. D2 is at all material times the sole director and sole shareholder of D1. D3 is the cloud service provider hosting the OVIS systems. [8] The relationship between the Plaintiffs and D1 and D2 began from an earlier project known as "1 Hari 1 Tiang" ("1H1T Project"), which involved the development of software platforms for TNB technicians. The arrangement for the OVIS Project was said to be similar in nature to the 1H1T Project. [9] The Plaintiffs instituted these proceedings by way of Originating Summons dated 12.11.2024 (Enclosure 1) seeking, inter alia, declaratory and mandatory orders relating to the OVIS systems, intellectual property rights therein, and the transfer of access to the AWS accounts hosting the OVIS systems. [10] The Originating Summons was served on D1 by way of personal service on 18.11.2024, as evidenced by the Plaintiffs' Affidavit of Service affirmed by Mohd Shamsury Bin Abas on 20.11.2024 (Enclosure 12). 6! ! [11] In respect of D2, after attempts at personal service proved unsuccessful, the Plaintiffs obtained an Order for Substituted Service dated 17.12.2024 (Enclosure 28) ("the 1st SS Order").

Posting on the Kuala Lumpur High Court notice board on 31.12.2024; and

Advertisement in the New Straits Times on 09.01.2025. The Plaintiffs filed the Affidavit of Substituted Service affirmed by Mohd Shamsury Bin Abas on 20.01.2025 (Enclosure 34) and the Affidavit of Advertisement affirmed by Doris Gertrude Mayappen on 20.01.2025 (Enclosure 35) to evidence compliance with the 1st SS Order. [12] Neither D1 nor D2 entered appearance or filed any affidavit in reply to the Originating Summons. [13] The Plaintiffs were directed to file written submissions (Enclosure 41), and the Originating Summons (Enclosure 1) was heard on its merits on 13.03.2025. Having considered the Plaintiffs' affidavit evidence and submissions, this Court granted the OS Order (Enclosure 45) on 13.03.2025 in favour of the Plaintiffs. [14] The OS Order was served on D1 at its registered address on 19.03.2025, as per the Affidavit of Service affirmed by Mohd Shamsury Bin Abas on 02.05.2025 (Enclosure 56). I note that while the 1st and 2nd Defendants' submissions refer to service on 20.03.2025, the Plaintiffs' affidavit evidence indicates service on 7! !

19.03.2025. The difference is immaterial because even taking the later date of 20.03.2025, the 30-day period under Order 42 rule 13 of the ROC 2012 would have expired on 19.04.2025, and the Application in Enclosure 58 was only filed on 15.05.2025. [15] The OS Order was served on D3 through its solicitors on 20.03.2025. [16] In respect of D2, the Plaintiffs obtained a further Order for Substituted Service dated 10.04.2025 (Enclosure 51) ("the 2nd SS Order") for service of the OS Order on D2. Service of the OS Order on D2 was effected by:

Posting on the Kuala Lumpur High Court notice board on 15.04.2025 (Enclosure 53); and

Advertisement in the New Straits Times on 17.04.2025 (Enclosure 52). [17] On 03.05.2025, D3 complied with the OS Order by performing the consequential relief stated therein, i.e., resetting the AWS Account and enabling the Plaintiffs to gain access to the AWS Accounts hosting the OVIS systems. As at the date of the hearing of the present Application, no further obligations remain outstanding on the part of D3 under the terms of the OS Order. ! 8! ! [18] On 15.05.2025, D1 and D2 filed the present Application (Enclosure 58) seeking, inter alia, to set aside the OS Order, to stay execution of the OS Order, for an extension of time for D1 to file the Application, and for the Originating Summons to be converted to a writ action. [19] D2's central contention is that he was abroad during the pendency of the Originating Summons proceedings and only became aware of the matter in April 2025, and that there are meritorious defences to the Plaintiffs' claims. C. THE APPLICATION IN ENCLOSURE 58 [20] As noted above, the Application in Enclosure 58 seeks several distinct reliefs which I shall address in turn: -

D1 seeks an extension of time of 27 days from the date of expiry for filing the Application (i.e., from 19.04.2025);

D1 and D2 seek a stay of execution of the OS Order pending disposal of the Application;

D1 and D2 seek to set aside the OS Order; and

D1 and D2 seek for the Originating Summons to be converted to a writ action. [21] As a preliminary observation, I note the Plaintiffs' submission, supported by the Court of Appeal decision in Jacy Tintang & Anor 9! ! v Mayan ak Nayang [2022] MLJU 1491, that it is undesirable for separate applications with different requirements to be lumped into a single notice of application. The Court of Appeal in that case observed at paragraph [59]: “[59] It is also germane to observe and it is also not disputed that the appellants had filed in one application seeking to be made co-defendant pursuant to Order 89 rule 5 and at the same time made an application to intervene under Order 15 rule 6 of the ROC 2012. It is trite that the requirements for each application are different. The requirements for an application to intervene under Order 89 rule 5 are separate from that of an application under Order 15 rule 6. Under Order 15 rule 6 requires the appellants to have legal interest. We are of the view that given the different legal consideration that underlies each application it is undesirable for two separate applications to be lumped into one notice of application.” [Underlined emphasis added] [22] In the present case, D1 and D2 have combined an application for extension of time, an application to set aside, an application for stay of execution, and an application to convert the proceedings into a writ action, all within a single notice of application. Each of these reliefs engages different legal considerations and requirements. While I accept the submission of learned counsel for D1 and D2 that the Court of Appeal's observation in Jacy Tintang was strictly obiter dicta and that the case was ultimately decided on the substantive merits of the intervention application, I nonetheless note the undesirability of such a practice. Be that as it may, I have proceeded 10! ! to consider the Application on its substantive merits rather than dismiss it on this procedural irregularity alone. D. THE APPLICABLE LAW Rehearing of the OS Order 28 Rule 4(1) of the ROC 2012 ! [23] The governing provision for the setting aside of an order made in the absence of a defendant in originating summons proceedings is Order 28 rule 4(1) of the ROC 2012, which provides:- "(1) The Court hearing an originating summons may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the Court, if satisfied that it is just to do so, may rehear the originating summons." [24] The operative words are "if satisfied that it is just to do so." The power to rehear is discretionary, and the Court must be satisfied that justice requires a rehearing in the circumstances of the case. A rehearing presupposes that the earlier order made in the absence of the defendant has first been set aside. As observed in Jeganathan a/l Paramachivain v Liberty Insurance Berhad [2020] MLJU 1176 at paragraph [37]:- 11! ! "…A rehearing of the originating summons can only take place if the earlier order made in absence of the defendant has been set aside. Therefore, by reason of the foregoing, the appellant has thirty days, after the receipt of the declaratory order by him, to make an application to set aside the said order." Setting aside judgement in default Order 42 Rule 13 of the Rules of Court 2012 [25] Order 42 rule 13 of the ROC 2012 prescribes the time limit for filing a setting aside application: - "Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him." [26] This provision is mandatory. The Federal Court in Hong Kwi Seong v Ganad Media Sdn Bhd and another appeal [2013] 6 MLJ 765 observed that:- “In other words a parry (party) intending to set aside an order or judgment must make his application and serve it on the party who obtained the order or judgment within thirty days after receipt of the order or judgment by him. If the application is made outside the thirty day period, unless time is enlarged, the application must fail (Development & Commercial Bank Ltd v 12! ! Dinesh Kumar a/l Jashbhai Nagjibhai & Ors [2002] 7 MLJ 430; [2002] 3 CLJ 108). Whether an enlargement of time will be granted, on the premise that an application was (has) been filed, will depend very much on the facts and circumstances of that application (VVDN Sockalingam Chettiar And Two Others v KRPRSM Somasundaram Chettiar [1941] 1 MLJ 103 (CA)).” [Underlined emphasis added] [27] In Shinning Crest Sdn Bhd (appointed receiver and manager) & Ors v Malaysia Building Society Bhd [2018] 10 MLJ 491, it was further observed that non-compliance with the mandatory requirements of Order 42 cannot be cured by invoking the general provisions of Orders 1A and 2 of the ROC 2012:- “[38] Further, I reiterate that the plaintiffs’ inordinate delay in their filing of the originating summons and any application for extension of time is fatal. As highlighted by the defendant, in RHB Bank Bhd v Nutriwira Sdn Bhd & Ors [2016] MLJU 1582; [2016] 1 LNS 1811, I stated thus: [22] As I have stated in RNS Oil and Gas Sdn Bhd v Norhayati binti Ahmad Kamal [2016] 6 AMR 668, Orders 1A and 2 are not and cannot be the true answer to every transgression of the rules of court. The court will not cure the failure to comply with requirements which are mandatory in nature such as those stipulated in O 42 of the RC 2012. Where rules are mandatory, and explanation for the violations 13! ! deemed unacceptable, considerations of lack of prejudice (as what is also contended by the first and second third parties in the instant case) and absence of substantial miscarriage of justice to the second defendant, whilst relevant, become secondary. When explanation for the non-compliance is not forthcoming or not acceptable, the infringement is more likely to have been intentional or at the minimum involve a reckless disregard for the rules of court, which the Court will at any rate not countenance.” [Underlined emphasis added] Setting Aside a Regularly Obtained Judgment [28] It is trite and well-established law that where a judgment has been regularly obtained, the defendant who seeks to set it aside bears a considerably heavier burden than in cases where the judgment was irregularly obtained. The rationale underlying this distinction is that a regularly obtained judgment carries with it the presumption of procedural propriety, and the successful litigant is entitled to the reasonable expectation that the judgment will stand unless displaced by cogent and compelling grounds. The Federal Court in Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 laid down the principle that a defendant seeking to set aside a regularly obtained judgment must disclose a defence on the merits. “The principle of setting aside a default judgment under O. 13 r. 8 has been well established and needs no detailed repetition. What is important to observe 14! ! is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be sufficient ground by itself for setting it aside. But where the default judgment has been obtained regularly, in order to succeed the defendant must file an affidavit of merits, i.e. the defendant must disclose by affidavit evidence that prima facie he has a defence of merits. Put in another way, the affidavit must disclose that he has an arguable or triable issue on the merits. (see Evans v. Bartlam [1937] AC 478).” [Underlined emphasis added] [29] The significance of this principle cannot be overstated. It is not open to a defendant to merely express dissatisfaction with a regularly obtained judgment or to advance bare assertions devoid of substantive merit. The defendant must disclose, with sufficient particularity and credibility, a defence that is bona fide and one that raises a genuinely arguable or triable issue. Vague, unsubstantiated, or speculative averments will not suffice to discharge this burden. [30] It must also be stressed here that the Court's power to set aside a final judgment especially one that has been drawn up, sealed, and perfected — is circumscribed and operates within strictly defined limits. The doctrine of functus officio dictates that once a court has delivered its judgment and the order has been perfected, the court becomes divested of jurisdiction over the matter, and the proper recourse for a dissatisfied party is to pursue an appeal. In Lee Gee 15! ! Pheng v RHB Bank Bhd [2004] 1 MLJ 618, the Court of Appeal laid down limited instances which allows the Court to set aside or amend a final order. The Court of Appeal in Lee Gee Pheng held as follows: “14. It is worthy of note that once an order of court has been drawn up and perfected as in this case, it cannot be altered, varied or set aside as the court is functus officio. The proper recourse for a party dissatisfied with the order is to appeal against it. However, this general principle is subject to certain established exceptions which allow the court to set aside or amend a final order. A final order may be set aside or amended without the need to appeal in the following cases:

to correct errors in expressions of the intention of thecourt (the slip rule)

(ii) where the order is made in the absence of a party at the hearing: O 28 r 4(1); O 32 r 6; O 35 r 2 of the RHC;

(iii) where the order has been obtained in breach of natural justice: Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374 refd;

(iv) where the order contravenes a substantive statutory provision rendering it defective on grounds of illegality or lack of jurisdiction; and

where the justice of the case requires the court tocorrect a serious defect in the order: Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 refd; Selvam Holdings

(M) Sdn Bhd v Grand Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, interveners) [2000] 3 MLJ 201 refd.” 16! ! [Underlined emphasis added] [31] The limited instances adumbrated above are to be construed narrowly and applied sparingly. They do not constitute an open-ended invitation for litigants to circumvent the appellate process by repackaging what is, in substance, an appeal as a setting aside application. A party who fails to bring himself squarely within any of the recognised exceptions cannot avail himself of this remedy, and any attempt to do so ought to be firmly resisted. [32] In the case of Kirba Daisy a/p John Das v Mahinder Singh a/l Bachittar Singh [2012] 5 MLJ 712, the Court of Appeal has observed that even though a judgment was entered for the plaintiff in the absence of a defendant at trial, the defendant should have mounted an appeal and should not be allowed to apply to set aside the said judgment. The Court of Appeal in Kirba Daisy held as follows: “[9] On 30 March 2009 the case came up for full trial before a different HCJ (Siti Mariah J). The plaintiff’s counsel was present but neither the defendant nor his counsel was present. Only one witness, that is, the plaintiff herself, was called to testify at the trial. On 31 July 2009 the HCJ gave judgment for the plaintiff and assessed damages at RM500,000. [10] The defendant received a sealed copy of the judgment on 4 December

He did not file any notice of appeal nor make any application to file a notice of appeal out of time. The defendant, instead, through his solicitors filed an 17! ! application by way of summons in chambers, dated 8 January 2010, to set aside the judgment entered on 31 July 2009 under O 35 r 2 and O 92 r 4 of the RHC 1980. [11] The application was not heard by the HCJ who had entered judgment on 31 July

However, the HCJ who heard the application allowed the defendant’s application and ordered a re-trial. [12] This appeal before us is by the plaintiff against the order for a retrial, pursuant to an interlocutory application to set aside a final judgment, after evidence had been adduced by the plaintiff albeit in the absence of the defendant and his counsel. [13] We are of the view that the judgment obtained by the plaintiff on 31 July 2009 was a regular judgment. It was not null and void on the ground of illegality or lack of jurisdiction or breach of natural justice, to warrant the judgment to be set aside ex debito justitiae. If the defendant was dissatisfied on the issue of liability or the amount of damages awarded, he should mount an appeal against the decision of the HCJ made on 31 July 2009 and not attempt to set it aside on the alleged grounds of a breach of the rules of natural justice because he was not heard on the hearing date. He cannot be now heard to say that he was absent because he was not informed of the hearing date.” [Underlined emphasis added] [33] The pronouncement of the Court of Appeal in Kirba Daisy is of particular significance. It establishes, in unequivocal terms, that a 18! ! party's own absence or default at trial does not, without more, transform a regularly obtained judgment into one that is amenable to being set aside. A defendant who, through his own neglect, inaction, or want of diligence, fails to attend trial or to prosecute his defence cannot subsequently seek to undo the consequences of his own default by invoking the setting aside jurisdiction. To permit such a course would be to reward indolence and to undermine the finality of judicial proceedings. The defendant's remedy, if any, lies in the appellate process and not in a collateral attack upon the judgment by way of a setting aside application. [34] Similarly, in Dong Moon Soo v SNC Process Services Sdn Bhd & Anor [2025] MLJU 394, the High Court in dismissing a setting aside application against an originating summons order held that a judgment granted after the court has considered the merits of the case remains valid, even if one of the parties was absent and did not file any affidavit in opposition. In such circumstances, the proper course of action for the absent party is to file an appeal to the Court of Appeal, rather than seeking to set aside the judgment and seek for a rehearing: “[29] In the case of Halim Saad v Chan Yok Peng [2021] 1 CLJ 499, the Court of Appeal held that Order 42 Rule 13 is only applicable vis-à- vis the provision under the Rules of Court 2012 which specifically provides for a setting aside or variation of any order or judgment. In this case, the 2nd Defendant had not referred to this Court the specific provision of the Rules of Court 2012 which provides for the setting aside of a judgment made in 19! ! an originating summons (unlike for example Order 35 Rule 2(1) of the Rules of Court 2012 which deals with judgment given in the absence of a party at the trial of an action [See: Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v. Awang Soh bin Mamat & Ors [2009] 4 MLJ 610). Although the 2nd Defendant did not appear and did not file any affidavits to oppose the OS, this does not mean that the OS was not heard on its merits when the Judgment was granted. This means that the proper route to be taken if the 2nd Defendant was not satisfied with the Judgment was to appeal to the Court of Appeal instead of filing an application to set aside.” [Underlined emphasis added] [35] The decision in Dong Moon Soo underscores a critical and often overlooked point: the absence of a party at the hearing does not deprive the judgment of its character as one decided on the merits. Where the court has considered the evidence and submissions before it and has arrived at a determination, that determination constitutes a judgment on the merits, regardless of whether all parties elected to participate in the proceedings. A party who, by his own volition or neglect, absented himself from the proceedings cannot thereafter be heard to contend that the judgment was not adjudicated on the merits, or that he is entitled to a de novo hearing through the mechanism of a setting aside application. The law does not countenance such an approach, and to permit it would be to open the floodgates to abuse of process and to strike at the very foundation of the principle of finality in litigation. 20! ! [36] In sum, the relevant considerations for setting aside a regularly obtained judgment include: (a) whether the application was made promptly and within time; (b) whether there is a satisfactory explanation for the defendant's absence or failure to defend; (c) whether there is an arguable or meritorious defence; and (d) whether the plaintiff would suffer irreparable prejudice that cannot be compensated by costs. Extension of Time [37] Under Order 3 rule 5 of the ROC 2012, the Court has a discretion to extend or abridge the time limited by any rules or by any order or direction of the Court for doing any act or taking any step. The established factors governing the exercise of this discretion include:

the length of the delay; (b) the reasons for the delay; (c) the chances of success if the extension is granted (i.e., the merits of the case); and (d) the degree of prejudice to the other party. Stay of execution [38] Order 45 Rule 11 ROC provides that: - “11. Matters occurring after judgment: Stay of execution (O. 45 r. 11) Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.” 21! ! [39] This provision confers upon the Court a broad discretionary power to grant a stay of execution, but such discretion is not to be exercised lightly or as a matter of course. It is a power circumscribed by well-established principles, and the burden falls squarely upon the applicant to demonstrate that the circumstances justify the Court's intervention to restrain a successful litigant from enjoying the fruits of the judgment obtained in his favour. [40] In relation to the law on a stay application, in the case of Tetap Tiara Sdn Bhd v Perbadanan Pengurusan Jaya One [2022] MLJU 3003, Hayatul Akmal Abdul Aziz J observed that: - “[12] In determining whether to grant a stay, the Court will consider whether there are “special circumstances” in the case to grant a stay. In Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49, CA, observed that: “The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of a judgment obtained in his favor unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common, or usual circumstances, and that goes to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal).” [41] The threshold of "special circumstances" is therefore deliberately set at a high bar. It is not sufficient for an applicant to merely assert 22! ! generalised inconvenience or hardship. The circumstances relied upon by the applicant must be of an exceptional and compelling nature that goes directly to the question of execution, rather than to the substantive merits of the underlying judgment or any pending appeal. [42] In Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49, the Court of Appeal held that “special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal)”, and that the ground that if the defendant is successful in his appeal he cannot be restored to the same position as before alone is not a sufficient ground on which to grant a stay. [43] Furthermore, it is a well-recognised principle that there would be nothing to warrant a stay of execution where the order in question has already been fully performed or complied with. In such circumstances, a stay application becomes wholly academic and devoid of practical utility, as there is no longer any extant order capable of being stayed. The rationale is self-evident in that the purpose of a stay is to suspend the enforcement of a judgment or order pending the determination of some further matter. As such, where the judgment or order has already been executed and the subject matter exhausted, the grant of a stay would serve no discernible purpose and would amount to an exercise in futility. E. MY FINDINGS 23! ! i. Whether the extension of time ought to be granted pursuant to Order 42 Rule 13 of the ROC 2012 [44] I have addressed the preliminary procedural point regarding the lumping of multiple applications in a single notice of application at paragraphs [21] and [22] above. While I have noted the undesirability of this practice, I have not dismissed the Application on this ground alone. I have proceeded to consider the substantive merits of each prayer in the Application. [45] It is not disputed that D1 was served with the OS Order on 19.03.2025 (or at the latest, 20.03.2025) at its registered address.

The extension of time should have been sought separately and prior to the filing of the substantive application 24! ! [48] As a threshold issue, the Plaintiffs submitted, relying on the Federal Court decision in Hong Kwi Seong, that the application to extend time ought to have been made prior to the filing of the substantive setting aside application. In that case, Suriyadi FCJ held at paragraph [13]:- “[13] It is crystal clear that no enlargement of time was ever applied for by the appellant prior to the filing of encls 129–130. A brief scrutiny of the dates of all of the relevant orders, and their dates of service, shows that the appellant was out of time by at least a year. Despite knowing that encls 129–130 were filed pursuant to O 42 r 13 of the RHC the appellant had disregarded the time factor prescribed to regularise the application. With no application filed to extend time pursuant to O 3 r 5 of the RHC prior to filing of those applications (and of course no reasonable explanation was given for the said delay), encls 129–130 were incompetent.” [Underlined Emphasis Added] [49] I note D1 and D2's submission that the High Court in Jeganathan a/l Paramachivain v Liberty Insurance Berhad [2020] MLJU 1176 at paragraph [37] stated that if the application is made beyond the 30-day period, "the appellant must include a prayer for time to be extended to file the application and provide an explanation for the delay." D1 and D2 argued that this authority supports the proposition that the extension of time prayer may be included within the same application, rather than filed separately beforehand. [50] I have considered both authorities carefully. The Federal Court authority of Hong Kwi Seong is binding on this Court and carries 25! ! greater weight than the High Court observation in Jeganathan. The Federal Court clearly disapproved of the practice of filing a setting aside application without first obtaining or at least concurrently applying for an extension of time in a separate application. The rationale is clear: an application filed out of time is, without an extension having been granted, incompetent ab initio. One cannot breathe life into a dead application by including a prayer for extension of time as one of several prayers within the very application that is incompetent. [51] However, even if I were to accept D1 and D2's submission that the prayer for extension of time could properly be included within the same application (as suggested by Jeganathan), and even if I were to exercise my discretion under Order 34 rule 1(1) of the ROC 2012 to consider the extension of time prayer first before addressing the remaining prayers, I would nonetheless refuse the extension of time for the reasons that follow.

The reasons for the delay are unsatisfactory [52] D2's primary explanation for the delay, as stated in his Affidavit in Support (Enclosure 59), is that he was abroad during the pendency of the Originating Summons proceedings and only became aware of the matter in April 2025. [53] I find this explanation to be wholly unsatisfactory for the following reasons: 26! ! [54] D2 is the sole director and sole shareholder of D1. The OS Order was served on D1 at its registered address on 19.03.2025 (or 20.03.2025). Service on D1 at its registered address is valid and effective service on the company. As the sole director and shareholder of D1, D2 is the directing mind and will of D1. It is D2's own responsibility to ensure that his company's registered address is properly attended to and that correspondence and legal process served at that address comes to his attention. The fact that D2 may have been abroad does not relieve D1 of the consequences of valid service at its registered address. [55] In my considered view, even before the OS Order was made, D1 had been personally served with the Originating Summons on 18.11.2024 (Enclosure 12). This was approximately four months before the OS Order was made. D1 did nothing. No appearance was entered, no affidavit in reply was filed, and no solicitors were appointed to act on behalf of D1. The 2nd Defendant, as the sole director of D1, must be taken to have been aware or at the very minimum, ought to have been aware of the service of the Originating Summons on D1 in November 2024. [56] Important to note that, D2 himself was served with the Originating Summons by way of substituted service pursuant to the 1st SS Order dated 17.12.2024, which was effected by posting on the High Court notice board on 31.12.2024 and advertisement in the New Straits Times on 09.01.2025. D2 likewise did nothing in response. [57] I find that, D2's assertion that he was abroad and unaware of the proceedings is a bare assertion that is contradicted by the 27! ! cumulative effect of the evidence. The Originating Summons was served on D1 by personal service in November 2024. I am unable to accept that D2, as the sole director and shareholder of D1, would have had no knowledge whatsoever of legal proceedings served on his own company for a period of nearly six months (from November 2024 to May 2025). As observed in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ 281:- "…where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted." The Plaintiffs have positively asserted that both D1 and D2 were validly served. D1 and D2 have not contended that service was irregular. The irresistible inference is that D1 and D2 had notice of the proceedings but chose not to respond. [58] Even accepting D2's argument that he only learned of the proceedings in April 2025 and the Application wasn't filed until May 15, 2025, he has not adequately justified the delay between becoming aware of the proceedings and the eventual filing date.

The merits of D1's proposed defence do not warrant an extension of time [59] I shall address the issue of merits in greater detail below in the later part of this judgement, but for present purposes, I note that the mere assertion of a defence does not automatically entitle a party to an extension of time. The proposed defence must be sufficiently 28! ! meritorious to warrant the exercise of the Court's discretion. For the reasons elaborated upon below, I am not satisfied that D1 has demonstrated a sufficiently meritorious defence.

Prejudice to the Plaintiffs and D3 [60] It is significant that D3 had already complied with the OS Order on 03.05.2025 by resetting the AWS Account and enabling the Plaintiffs to gain access to the OVIS systems. Setting aside the OS Order at this juncture would cause significant prejudice to the Plaintiffs, who have already taken steps in reliance on the OS Order, and to D3, which has already fully complied with the OS Order. The proverbial clock cannot be turned back. [61] For these reasons, I refuse the 1st Defendant's application for an extension of time. The consequence of this refusal is that D1's application to set aside the OS Order is incompetent and must fail, as held by the Federal Court in Hong Kwi Seong and in Development & Commercial Bank Ltd v Dinesh Kumar a/l Jashbhai Nagjibhai & Ors [2002] 7 MLJ 430. ii. Setting aside regularly obtained judgement [62] D1 and D2 submitted that D2's application to set aside was filed within the 30-day time limit prescribed by Order 42 rule 13 of the ROC 2012. Their argument rests on the premise that D2 was served with the OS Order by way of substituted service, with the last act of substituted service being the advertisement in the New Straits Times on 17.04.2025 (Enclosure 52). Counting 30 days from 29! !

17.04.2025, D2's deadline would have been 17.05.2025. Since the Application was filed on 15.05.2025, D1 and D2 contend that it was within time for D2. [63] Even accepting as a matter of argument that D2's application was within the 30-day period by reference to the date of the last act of substituted service, I am not satisfied that D2 is entitled to rely on this timeline for the following reasons. [64] As I have highlighted earlier, D2 is the sole director and sole shareholder of D1. When D1 was served with the OS Order on 19.03.2025 (or 20.03.2025), D2 had constructive notice of the OS Order by virtue of his position as an officer of D1. Under section 212 of the Companies Act 2016, a director owes duties to the company and is responsible for the management of the company's affairs. The sole director of a company is its directing mind and will. Service on D1 at its registered address must be taken to bring the contents of the documents served to the knowledge of the sole director. [65] In any event, even if I were to accept that D2's application was technically within time by reference to the substituted service dates, I would still dismiss D2's application on the substantive grounds that I am not satisfied that it is just to set aside the OS Order and rehear the Originating Summons, for the reasons elaborated upon in the sections that follow. [66] I note that D1 and D2 do not contend that service of the Originating Summons on D1 and D2 was irregular. This is a significant concession. 30! ! [67] Service of the Originating Summons on D1 was effected by way of personal service on 18.11.2024 at D1's registered address, as evidenced by the Plaintiffs' Affidavit of Service affirmed by Mohd Shamsury Bin Abas on 20.11.2024 (Enclosure 12). D1 and D2 do not contend that this service was irregular. Indeed, in D2's Affidavit in Support (Enclosure 59), there is no challenge whatsoever to the validity or regularity of service of the Originating Summons on D1. [68] Service of the Originating Summons on D2 was effected by way of substituted service pursuant to the 1st SS Order dated 17.12.2024 (Enclosure 28), which was granted by this Court after the Plaintiffs demonstrated that personal service on D2 could not be effected. The substituted service was carried out by posting on the Kuala Lumpur High Court notice board on 31.12.2024 and by advertisement in the New Straits Times on 09.01.2025. The regularity of this substituted service is likewise not challenged by D1 and D2. [69] The significance of the regularity of service cannot be overstated. Where service of an originating process is regular, the judgment or order obtained thereafter is a regular judgment or order. The distinction between a regular and an irregular judgment is fundamental. An irregular judgment may be set aside ex debito justitiae as of right, whereas a regular judgment will only be set aside in the exercise of the Court's discretion and upon the applicant satisfying the Court that it is just to do so. As the Court of Appeal held in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ 281:- 31! ! "…where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted." [70] The Plaintiffs have positively asserted that both D1 and D2 were validly and regularly served with the Originating Summons. D1 and D2 have not contradicted this assertion. Following the principle in Ng Hee Thoong, this is treated as an admission by D1 and D2 that service was regular. [71] I am further fortified in this finding by the observations of Vinodh Coomaraswamy J in PNG Sustainable Development Program Ltd v Rex Lam Paki and Others [2022] SGHC 188, where the learned judge drew a clear distinction between: (a) a non-party who had no notice of proceedings and who successfully applied to set aside a judgment under the equivalent of Order 28 rule 4(1); and (b) a duly served defendant who chose not to appear. The learned judge observed at paragraphs [71] to [73] that the Federal Court decision in United Overseas Bank Ltd v Chung Khiaw Bank Ltd [1968] 2 MLJ 85 is authority only for the proposition that a non-party affected by a judgment, who had no notice of the proceedings, may apply to set aside that judgment. It is not authority for the proposition that a duly served defendant who chose not to appear is entitled to set aside a judgment as a matter of course. ! [72] In United Overseas Bank Ltd the Party allowed to set aside an Originating Summons that was heard ex parte was a bank which was not a party to the Originating Summons and thus not regularly 32! ! served, which resulted in them not have notice of the proceedings. That is not the case here, as per the observation of Vinodh Coomaraswamy J in PNG Sustainable Development Program Ltd: “[71] UOB v CKB does not assist the first defendant. The two most important points to note about the case are that: (a) the defendant was duly served with CKB’s originating summons; and (b) it was UOB who applied to set aside CKB’s judgment, not the defendant. UOB v CKB is therefore authority as to the status of CKB’s judgment as against UOB, as a non-party to the proceedings affected by the judgment. That is not the issue before me now. The issue before me now is the status of a judgment entered against a duly served but absent defendant. UOB v CKB is not authority on that issue. [72] UOB succeeded in its application because the Federal Court accepted that UOB was a non-party affected by CKB’s judgment, but who had had no notice of CKB’s application. That is the basis on which the Federal Court held that UOB had a right to apply in CKB’s proceedings to set CKB’s judgment aside under O LIII r 4(1) of the 1934 Rules. Indeed, the Federal Court went so far as to hold that that CKB’s judgment could not stand ex debito justitiae (at [29]) as against UOB. The Federal Court did not have to consider, and did not therefore consider, whether CKB’s judgment could or should stand as against the defendant. [73] To put it another way, I have no doubt that the application to set aside CKB’s judgment under Order LIII r 4(1) of the 1934 Rules would have failed in either of the following two situations: (a) if it had been the defendant applying to set the judgment aside instead of UOB; or (b) if UOB had been given an opportunity to appear and present arguments when CKB secured its judgment against the defendant. In both those cases, there would be no grounds for setting the 33! ! judgment aside under O LIII r 4(1) of the Rules, even if there were other grounds under O XIII or some other provision of the Rules.” [73] This distinction is directly applicable to the present case. D1 was personally served with the Originating Summons on 18.11.2024. D2 was served by way of substituted service in accordance with a Court order. Both D1 and D2 were parties to the proceedings who had been duly served. They are not non-parties who had no notice. Their situation is fundamentally different from that of UOB in the United Overseas Bank case, and they cannot invoke that authority to support their application to set aside the OS Order. [74] I therefore find that service of the Originating Summons on both D1 and D2 was regular, and that both D1 and D2 had notice of the proceedings and the opportunity to defend the claim but chose not to do so. ! [75] Further, D2 is an officer of D1 and is deemed to have constructive notice once D1 had been validly and regularly served, as per Dato Seri S Samy Vellu v. Penerbitan Sahabat (M) Sdn Bhd & Ors (NO 1) [2005] 5 MLJ 489 where Abdul Malik Ishak J held: “Both these two sections - referring to ss 119 and 139 of the Companies Act 1965, fortify the position that the service of any document at the registered office through the company secretary should be during its office hours for it to be deemed as effective service on the company on the date of the service because the said Act clearly requires that the registered office to function during the ordinary office hours only. It is tenable to argue that the registered office is only to facilitate service of documents for and on behalf of the company (s 119 of 34! ! the Companies Act 1965). The secretary of the company is not an employee of the company to act or to do more than what is envisaged by the said Act. Thus, in order for the officers of the company to be restrained by "constructive notice" of the service of the ex parte injunction order or having notice thereof of the service on the company secretary at the registered address, it must be effected during its normal office hours in order to enable the company secretary to take the relevant actions to communicate to the officers of the company, who would in turn have to give instructions to their subordinates.” ! [76] I agree with the submissions advanced by learned counsel for the Plaintiff’s in that it is the responsibility of D1 and D2 to make appropriate arrangements in such an event where a sole director or sole shareholder is unable to manage the affairs of the Company as claimed, and not for a counterparty to halt or suspend their rights. In fact, under the Indoor Management Rule, a party dealing with a company is entitled to assume that the internal management of said company is regular. (refer Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & 12 Ors [1998] 1 MLJ 465) [77] Further thereto, the Companies Act 2016, specifically in Section 209, is structured in such a way that it prohibits a situation where there are no directors available to manage the affairs of a company. ! “Resignation, vacation or death of sole director or last remaining director 209 (1) Subject to subsection 196(3), where a company has only one director or the last remaining director, that director shall not resign office until that director has called a meeting of members to receive the notice of the resignation and to appoint one or more new directors. 35! !

Subsection (1) is also applicable to a company whose sole director is also the sole shareholder.

For the purpose of appointing a new director, in the event of the office of a sole director or the last remaining director of the company being vacated due to the circumstances referred to in paragraph 208(1)(d), (e),

or (g), the secretary shall, as soon as practicable, call a meeting of the next of kin, other personal representatives or a meeting of members, as the case may be.

The secretary shall be entitled to be indemnified by the company in relation to any reasonable costs and expenses of the meeting convened under subsection

(3).

Where the next of kin, personal representatives or members fail to appoint a director within six months of the death of the last director, the Registrar may direct the company to be struck off in accordance with Subdivision 1 of Division 4 of Part IV.

Where a sole director who is also the sole shareholder of a company is unable to manage the affairs of the company by reason of his mental incapacity, the committee appointed under the Mental Health Act 2001 to manage his estate may appoint a person as a director.” iii. Whether the OS order was regularly obtained and heard on the merits [78] D1 and D2 submitted, in their Written Submissions in Reply (Enclosure 81), that the OS Order was not a "regular judgment" because it was heard without the benefit of their defence, and that the Court only had the Plaintiffs' side of the story. [79] With respect, I find this contention is misconceived. The OS Order was not a default judgment entered without hearing. It was an order 36! ! made after a full hearing on the merits of the Originating Summons, upon written submissions filed by the Plaintiffs (Enclosure 41), and upon consideration of the affidavit evidence before the Court. The fact that D1 and D2 chose not to appear and not to file any affidavit in reply or any submissions does not render the OS Order irregular. On the contrary, the OS Order is a regular order made in the exercise of the Court's jurisdiction under Order 28 of the ROC 2012, after D1 and D2 had been given the opportunity to be heard but elected not to avail themselves of that opportunity. [80] The Plaintiffs correctly pointed out that there is a critical distinction between a judgment entered in default of appearance (which is entered as of right without any consideration of the merits) and an order made under Order 28 rule 4(1) after hearing the originating summons on its merits in the absence of a defendant who has been duly served but who has chosen not to appear. The latter involves a substantive judicial determination of the claims based on the evidence and submissions before the Court. [81] As the 3rd Defendant has submitted, D1 was served with the OS Order on 19.03.2025 (or 20.03.2025). At that point, D1 had the option of either: (a) filing an application to set aside within 30 days pursuant to Order 42 rule 13; or (b) filing an appeal against the OS Order. D1 did neither within time. D2 likewise took no timely action. The proper recourse for a party aggrieved by a regular order made after a hearing on the merits is an appeal. The fact that D1 and D2 chose not to appear at the hearing does not convert the resulting order into one that was irregularly obtained. 37! ! [82] For these reasons, I find that the OS Order was regularly obtained, having been made after a hearing on the merits of the Originating Summons, upon due service of the Originating Summons on all Defendants, and in circumstances where D1 and D2 had every opportunity to participate in the proceedings but failed and/or refused to do so. iv. Whether the OS ought to be reheard [83] The central question under Order 28 rule 4(1) of the ROC 2012 is whether the Court is "satisfied that it is just to do so" to rehear the Originating Summons. This requires the Court to weigh all the circumstances of the case, including the reasons for the defendant's absence, the delay in making the application, the merits of the proposed defence, and any prejudice that would be caused to the other parties. [84] Having considered all the circumstances, I am not satisfied that it is just to set aside the OS Order and rehear the Originating Summons. My reasons are as follows.

Inordinate delay and absence of satisfactory explanation [85] The chronology of events speaks volumes. D1 was personally served with the Originating Summons on 18.11.2024. From that date until the filing of the Application on 15.05.2025 — a period of approximately six months — neither D1 nor D2 took any steps whatsoever in these proceedings. During this entire period:- 38! !

D1 did not enter appearance after being served with the

(ii) D2 did not respond after being served by way of substituted service in January 2025;

(iii) Neither D1 nor D2 appeared at the hearing of the Originating Summons on 13.03.2025;

(iv) D1 did not file a setting aside application within 30 days of being served with the OS Order on 19.03.2025 (the deadline being 19.04.2025 at the latest); and

The Application was only filed on 15.05.2025, some 57 days after D1 was served with the OS Order, and approximately six months after D1 was first served with the Originating Summons. [86] D2's explanation that he was abroad during this entire period, as I have observed above, is wholly unsatisfactory. D2 is the sole director and sole shareholder of D1. He cannot abdicate his responsibilities as a director by simply being abroad. A director of a company has a duty to ensure that the company's affairs are properly managed, including the management of legal process served on the company. The suggestion that D2 had absolutely no knowledge of legal proceedings served on his own company for a period of six months is, in my judgment, not credible. [87] Furthermore, even taking D2's case at its highest, that he only became aware of the proceedings in April 2025, there is still an 39! ! unexplained delay from the time of his alleged awareness to the filing of the Application on 15.05.2025. If D2 truly became aware of the OS Order in April 2025 and considered it urgent enough to warrant a setting aside application, one would have expected him to act with greater promptness. [88] I am guided by the Federal Court's observation in Hong Kwi Seong and the High Court's observation in Shinning Crest Sdn Bhd that the time limits prescribed under Order 42 rule 13 are mandatory and strict, and that inordinate delay in filing a setting aside application is fatal.

Constructive notice through D2's position as sole director of D1 [89] The Plaintiffs submitted, and I accept, that D2 had constructive notice of the service of the Originating Summons and the OS Order on D1 by virtue of his position as the sole director and sole shareholder of D1. [90] Under section 213(1) of the Companies Act 2016, a director is required to exercise reasonable care, skill and diligence. As the sole director of D1, D2 was responsible for the management of D1's affairs. When the Originating Summons was served on D1 at its registered address on 18.11.2024, and when the OS Order was served on D1 on 19.03.2025, D2 is deemed to have had knowledge of these matters. The law does not permit a sole director who is indolent and then claim ignorance of legal proceedings served on his own company. 40! ! [91] I am satisfied that D2, as the directing mind and will of D1, had constructive notice of the proceedings from at least 18.11.2024 when D1 was personally served with the Originating Summons. It follows that D2 also had constructive notice of the OS Order from 19.03.2025 when it was served on D1. Accordingly, even D2's 30- day period under Order 42 rule 13 ought properly to be computed from 19.03.2025 (or 20.03.2025), making his application of 15.05.2025 also out of time.

The OS Order has been fully executed in relation to D3 [92] A critical factor weighing against setting aside the OS Order is that D3 has already fully complied with the OS Order on 03.05.2025 by resetting the AWS Account and enabling the Plaintiffs to gain access to the AWS Accounts. The Plaintiffs have already taken possession of and access to the OVIS systems and data hosted on the AWS cloud infrastructure. [93] Setting aside the OS Order at this juncture would create an extraordinarily complex situation. The status quo ante cannot be restored. The Plaintiffs have already gained access to and control over the AWS Accounts. D3 has fully discharged its obligations under the OS Order. To set aside the OS Order would effectively require this Court to order the Plaintiffs to relinquish access and return control of the AWS Accounts to D1 and D2, notwithstanding that the OS Order was regularly made, that D3 has acted in good faith by complying with the OS Order, and that D1 and D2's own inaction and delay caused this state of affairs. 41! ! [94] As the 3rd Defendant has submitted, there is nothing in the OS Order which is left to be stayed insofar as D3 is concerned. The consequential relief in paragraph (10) of the OS Order directed at D3 has been fully performed.

Prejudice to the Plaintiffs and D3 [95] If the OS Order were to be set aside and the Originating Summons reheard, significant prejudice would be caused to both the Plaintiffs and D3:-

The Plaintiffs have already gained access to the OVIS systems in compliance with the OS Order. They may have already taken steps to manage, operate or maintain the OVIS systems for the benefit of TNB and its customers. Setting aside the OS Order would throw all of this into uncertainty.

(ii) D3 has complied with the OS Order in good faith. D3 is a cloud service provider who was joined as a party only because of the consequential relief required against it. It would be unjust to D3 to set aside the OS Order and potentially expose D3 to conflicting obligations or claims.

(iii) The OVIS systems serve a public interest function — they are designed to assist TNB customers in obtaining compensation for overvoltage incidents. Disruption to the operation of these systems by setting aside the OS Order and rehearing the matter could have adverse consequences for the public. 42! ! [96] D1 and D2 have not demonstrated how any prejudice to them, arising from the refusal to set aside the OS Order, outweighs the prejudice that would be caused to the Plaintiffs and D3 (and potentially to the public interest) if the OS Order were to be set aside. If D1 and D2 have legitimate grievances or claims, they are not without remedy as they may pursue separate proceedings against the Plaintiffs, or they may appeal against the OS Order (though the time for appeal may have lapsed, which is again a consequence of their own inaction). [97] In Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223, the Court of Appeal stressed that there must be limits as to what may be done in the interest of justice, particularly where an indolent litigant has shown no urgency or diligence in prosecuting his case, as justice is not only for a defaulting defendant but also for the plaintiff as well. Even in cases where a right is exercisable ex debito justitiae, a court may refuse relief to an indolent litigant. v. Whether the D1 and D2 have disclosed a meritorious defence [98] Even if I were to find that the Application was made within time (which I have not), and even if I were to find that it is just to consider a rehearing (which I have not), I would still dismiss the Application on the ground that D1 and D2 have failed to disclose a sufficiently meritorious defence that would warrant setting aside the OS Order. [99] The Federal Court in Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 established that a defendant seeking to set aside a regularly obtained judgment must disclose a defence on the 43! ! merits. This is not merely a formality. The proposed defence must be real, credible and supported by evidence. It must be a defence that has a realistic prospect of success. [100] D1 and D2 raise the following purported defences in their affidavit evidence and submissions:- i. The Purchase Order No: 0037843 ("the PO") is false; ii. There are outstanding amounts owed to D1 and D2; iii. The OVIS systems are not contained in the stated AWS Accounts; and iv. D1 is the developer and owner of the intellectual property in the OVIS systems under the Copyright Act 1987. [101] I shall address each of these purported defences in turn. a) The allegation that the Purchase Order is false [102] D2 alleges in his Affidavit in Support (Enclosure 59) that the PO relied upon by the Plaintiffs is false. However, this is a bare allegation that is not supported by cogent evidence. The Plaintiffs exhibited the PO in their Affidavit in Support (Enclosure 2), and it was before the Court when the OS Order was made. D2's assertion that the PO is false is a bare denial that does not, without more, constitute a meritorious defence. [103] Furthermore, even if there were disputes about the authenticity of the PO, this is a matter that could have been raised by D1 and D2 if they had participated in the proceedings when the Originating 44! ! Summons was being heard. Their failure to do so, for reasons already found to be unsatisfactory, means they cannot now rely on this as a ground for setting aside the OS Order. A party who willfully or negligently fails to defend proceedings cannot expect the Court to set aside the resulting order merely because he belatedly raises a defence that he could and should have raised at the appropriate time. b) Outstanding amounts owed to D1 and D2 [104] D1 and D2 allege that there are outstanding amounts owed to them by the Plaintiffs. Even if this allegation is true, it does not constitute a defence to the Plaintiffs' claims in the Originating Summons. The Plaintiffs' claims relate to the ownership and control of the OVIS systems and the AWS Accounts. The existence of outstanding amounts owed by the Plaintiffs to D1 and D2 may give rise to a counterclaim or a separate cause of action, but it does not constitute a defence to the Plaintiffs' proprietary claims over the OVIS systems. [105] In any event, the assertion of outstanding amounts is not supported by contemporaneous documentary evidence that would establish a clear defence to the Plaintiffs' claims. c) The OVIS systems are not contained in the stated AWS Accounts [106] D1 and D2 assert that the OVIS systems are not contained in the AWS Account stated in the Originating Summons (i.e., Account No: 737321122604). This assertion, even if true, does not assist D1 and 45! ! D2. If the OVIS systems are not contained in the stated AWS Accounts, then the OS Order directing D3 to reset the AWS Account and grant access to the Plaintiffs would not have affected the OVIS systems. D1 and D2 would have suffered no prejudice, and there would be no basis for setting aside the OS Order. On the other hand, if the OVIS systems are contained in the stated AWS Accounts, then the OS Order was correctly made. Either way, this argument does not establish a meritorious defence. d) Ownership of intellectual property under the Copyright Act 1987 [107] D1 and D2's primary contention is that D1, as the developer of the OVIS systems, is the owner of the intellectual property therein under the Copyright Act 1987. However, this contention fails to account for the contractual arrangements between the parties. The Plaintiffs' case, as set out in the Originating Summons and the affidavit evidence before the Court when the OS Order was made, is that the OVIS systems were developed pursuant to a contractual arrangement whereby the intellectual property in the systems was to vest in TNB (through the Plaintiffs as TNB's contractor). The existence of such a contractual arrangement, if established, would override any default position under the Copyright Act 1987. [108] D1 and D2 have not demonstrated that there is no such contractual arrangement. Their submissions focus on the default position under the Copyright Act 1987, but they fail to engage with the contractual position. The Plaintiffs have exhibited the contract between the 1st Plaintiff and TNB (as referred to in Jilid 6 of D1 and D2's own 46! ! Affidavit in Support in Enclosure 64), which sets out the terms of the OVIS Project including provisions relating to intellectual property. D1 and D2's failure to squarely address the contractual position means that they have not established a meritorious defence on this point. [109] For all these reasons, I find that D1 and D2 have failed to disclose a defence on the merits that would warrant setting aside the OS Order. The purported defences raised by D1 and D2 are either bare assertions unsupported by evidence, irrelevant to the substantive claims, internally contradictory, or fail to engage with the contractual framework that governs the parties' relationship. vi. Whether the Plaintiff and D3 have engaged in acts of mala fide and non-disclosure [110] D1 and D2 allege in their submissions that the Plaintiffs and D3 have engaged in acts of mala fide, and that the Plaintiffs failed to make full and frank disclosure of all material facts when the Originating Summons was heard on 13.03.2025. [111] I address these allegations in turn.

Allegations of mala fide against the Plaintiffs [112] D1 and D2's allegations of mala fide against the Plaintiffs appear to center on the contention that the Plaintiffs deliberately used the Originating Summons procedure to obtain the OS Order without D1 and D2's participation, and that the Plaintiffs relied on a false Purchase Order to support their claims. 47! ! [113] I find no basis for these allegations. The Plaintiffs commenced the Originating Summons on 12.11.2024. D1 was personally served on 18.11.2024. D2 was served by substituted service pursuant to a Court order after personal service could not be effected. The Plaintiffs took proper and lawful steps to bring the proceedings to the attention of D1 and D2. The fact that D1 and D2 chose not to participate is not evidence of mala fide on the part of the Plaintiffs. [114] As for the allegation that the PO is false, this is, as I have noted above, a bare allegation unsupported by cogent evidence. The mere assertion by D2 that a document is false does not establish mala fide on the part of the party who relied on that document.

Allegations of mala fide against D3 [115] D1 and D2 also appear to allege that D3 acted in mala fide in complying with the OS Order. I find this allegation to be entirely without merit. D3 is a cloud service provider that was joined as a party to these proceedings because of the consequential relief sought against it in relation to the AWS Account. D3 complied with a lawful Court order. A party who complies with a Court order cannot be said to have acted in mala fide by doing so. Indeed, it would have been D3's failure to comply with the OS Order that would have exposed D3 to the risk of contempt proceedings. [116] D3 has, through its Affidavit in Reply (Enclosure 70), explained that it complied with the OS Order in good faith and that it takes no 48! ! position in respect of the substantive disputes between the Plaintiffs and D1 and D2. I accept D3's position in this regard.

Allegations of lack of full and frank disclosure [117] D1 and D2 further allege that the Plaintiffs failed to make full and frank disclosure of all material facts when the Originating Summons was heard. The duty of full and frank disclosure typically arises in ex parte applications, where only one party appears before the Court and the absent party has had no notice of the proceedings. [118] In the present case, the hearing of the Originating Summons on 13.03.2025 was not a true ex parte hearing. It was a hearing at which D1 and D2 had been duly served but chose not to appear. There is a distinction between an ex parte application (where the other party has no notice) and a hearing where a duly served party fails to appear. In the latter case, the strict duty of full and frank disclosure that applies in ex parte applications does not apply with the same rigour, because the absent party had the opportunity to present its case but chose not to do so. [119] In any event, even if the duty of full and frank disclosure were applicable, D1 and D2 have not demonstrated what material facts were withheld by the Plaintiffs that, if disclosed, would have caused this Court to refuse to grant the OS Order. The Plaintiffs placed before the Court their affidavit evidence, the contractual documents, the Purchase Order, and their written submissions. The Court made the OS Order based on this material. D1 and D2's blanket allegation of non-disclosure, without specifying precisely what was withheld 49! ! and how it would have affected the outcome, is insufficient to warrant setting aside the OS Order. vii. D1 and D2’s application for stay of execution [120] D1 and D2 seek a stay of execution of the OS Order pending the disposal of the Application. Having dismissed the Application to set aside the OS Order, the prayer for a stay of execution necessarily falls away. [121] In any event, even if the Application had not been dismissed, I would have refused the stay of execution for the following reasons. [122] First, as D3 has submitted, the OS Order has already been fully executed insofar as D3 is concerned. D3 complied with the consequential relief in paragraph (10) of the OS Order on 03.05.2025. The Plaintiffs have gained access to the AWS Accounts. There is nothing left to stay. [123] Second, D1 and D2 raise the purported special circumstance that there is a risk of permanent destruction of data and information belonging to D1 and D2 or their clients in the AWS Accounts. However, this allegation is not supported by sufficient evidence. D1 and D2 have not identified with specificity what data or information is at risk, what steps have been taken or not taken by the Plaintiffs that give rise to this risk, or why an order for preservation of evidence (rather than a stay of the entire OS Order) would not be a more proportionate remedy. 50! ! [124] Third, the established principles governing a stay of execution require the applicant to demonstrate, inter alia, that there are special circumstances warranting a stay, that the applicant will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours a stay. D1 and D2 have not satisfied any of these requirements. Their failure to participate in the proceedings, their delay in making the present application, and the fact that the OS Order has already been fully executed all militate strongly against the grant of a stay. viii. D1 and D2’s application to convert to a writ action [125] D1 and D2 further seek an order that the Originating Summons be converted to a writ action. This prayer is premised on the contention that there are substantial disputes of fact that cannot be resolved on affidavit evidence alone. [126] Having dismissed the application to set aside the OS Order, the prayer for conversion to a writ action is academic. The OS Order stands. There is no Originating Summons to convert. [127] In any event, even if the application to set aside had been granted, I note that the question of whether the Originating Summons ought to have been commenced by writ action rather than by originating summons was a matter that could and should have been raised by D1 and D2 at the time when the Originating Summons was being heard. D1 and D2 had ample opportunity to raise this objection but failed to do so. Under Order 28 rule 8 of the ROC 2012, the Court may, where the proceedings were commenced by originating 51! ! summons and the Court is of the opinion that the proceedings should have been begun by writ, order the proceedings to continue as if they had been begun by writ. However, this is a discretionary power, and the Court is not obliged to exercise it merely because one party belatedly asserts that there are disputes of fact. The fact that D1 and D2 chose not to participate in the proceedings and only now claim that there are factual disputes that require cross-examination is, at best, an afterthought designed to delay the resolution of this matter. F. CONCLUSION [128] For all the reasons set out above, I am not satisfied that it is just to set aside the OS Order in Enclosure 45 and rehear the Originating Summons. The Application in Enclosure 58 is dismissed in its entirety. [129] In summary, my reasons for dismissing the Application are as follows:-

D1's application for an extension of time of 27 days is refused. The reasons given for the delay are unsatisfactory. D2, as the sole director and sole shareholder of D1, must be taken to have had constructive knowledge of the service of the Originating Summons on D1 in November 2024 and of the OS Order on D1 in March 2025. The application for extension of time was not made prior to or separately from the substantive setting aside application, contrary to the Federal Court's guidance in Hong Kwi Seong. In any event, even considering the extension of 52! ! time prayer within the present Application, the factors governing the exercise of discretion to extend time, particularly the unsatisfactory reasons for the delay, the lack of merits in the proposed defence, and the prejudice to the Plaintiffs and D3, all militate against the grant of an extension. The consequence of refusing the extension is that D1's application to set aside is incompetent and must fail.

Even considering D2's application on the basis that it may have been within time (which I do not accept, given my finding on constructive notice), I am not satisfied that it is just to set aside the OS Order under Order 28 rule 4(1) of the ROC 2012. The service of the Originating Summons was regular. The OS Order was regularly obtained after a hearing on the merits. D1 and D2 had notice of the proceedings but chose not to participate. D2's explanation for his absence (being abroad) is unsatisfactory. The OS Order has been fully executed by D3, and the Plaintiffs have gained access to the AWS Accounts. Significant prejudice would be caused to the Plaintiffs and D3 if the OS Order were set aside. Furthermore, D1 and D2 have failed to disclose a meritorious defence. The allegations of mala fide and non-disclosure are without basis.

The application for stay of execution is dismissed. The OS Order has been fully executed insofar as D3 is concerned. There is nothing left to stay. In any event, D1 and D2 have failed to demonstrate special circumstances warranting a stay, and the balance of convenience does not favour a stay. 53! !

The application for conversion to a writ action is dismissed as academic, the OS Order standing. In any event, D1 and D2 could and should have raised the objection regarding the mode of commencement at the time the Originating Summons was being heard. [130] Accordingly, it is ordered that D1 and D2's application in Enclosure 58 is dismissed in its entirety, with costs of RM 5,000 to be paid to the Plaintiff and D3. Dated this day of 31st March 2026. -sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR 54! ! Counsel: For the Plaintiff : A.G.Kalidas together with Doris Gertrude Meyappen and Wesley Wong (Messrs. K Nadarajah & Partners) For the 1st – 2nd Defendant : Theng Kai Chi and Tan Gee Ang (Messrs. Ling & Theng Book) For the 3rd Defendant : Joshua Teoh Beni Chris and Valeria Chung Shu En (Messrs. Skrine)