1. ) KCSB Konsortium Sdn. Bhd. v The Store (M) Sdn. Bhd. (JA-37G-58-12/2023)

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1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA PELAKSANAAN NO: JA-37G-58-12/2023

Lampiran

Lampiran 2 unto them would be essential so as to provide them with the opportunity to oppose or otherwise of the application for the garnishee order to be made absolute. 32. With due respect, this Court finds no merit in the JD’s contention since it is trite law that garnishee proceedings mainly concern 33. the JC and the Garnishee. Refer to Pernas Trading Sdn Bhd v Senali Construction Works Sdn Bhd & Anor [1991] 3 CLJ Rep 439 (High Court): - “Garnishee proceedings are attachment proceedings also, though not in respect of chattels, but of debts. The order for garnishee to show cause that was obtained, though made ex parte, was based on some prima facie evidence. By analogy to proceedings of attachment of chattels, in a matter of who has to adduce evidence first, the garnishee is like a claimant/objector to the chattels attached. That this is right is reinforced by the nature or name of the order nisi, that is, the order for garnishee to show cause. The burden is shifted to a garnishee in showing cause to prove what he alleges, that he owed no money at the time of the service of the order to show cause. The right or the inconvenience of having to begin first is dependent on which party would fail if no evidence at all were given by either side. Please see s. 102 of Evidence Act.”. 34. From the authority above, as garnishee proceedings are taken by the JC against the Garnishee, the right to response and/ or to discharge the burden of proof lies with the Garnishee not the JD. If the JD is allowed to dispute on the money to be garnished, that may well create another back-door avenue for the JD to dispute the amount ordered earlier against the JD as pronounced by the High Court in the Civil Suit. This surely cannot be allowed since everyone in the garnishee proceeding is already at the enforcement of judgment stage. 35. Further, there is also authority to the effect that in garnishee proceedings, there is even no necessity for the JC to serve Enclosure 1 and 2 to the JD apart from the order nisi as per Form 97. Reference is made to NCFM Enterprise Sdn Bhd v Kejuruteraan Rasshin Sdn Bhd and Other [2011] 10 CLJ 572 where it was held by the High Court that: - “[5] The first ground is that the plaintiff did not serve the ex parte application for an order to show cause (Form 98) on the 1st defendant. However, counsel for defendant did not dispute that the order nisi itself was served. In support she cited the case of Loo Chay Meng v. Ong Cheng Hoe (Gamuda Sdn Bhd, Garnishee) [1989] 1 LNS 140. However, in my opinion this authority does not support the argument of the defendant. Order 49 r. 3 only requires that the garnishee must be served the order nisi before the hearing to make the order absolute. In Loo Chay Meng v. Ong Cheng Hoe (Gamuda Sdn Bhd, Garnishee), VC George J decided that not only must the order nisi be served on the garnishee before the hearing to make it absolute but the ex parte summons (Form 98) as well as the supporting affidavit must be served. However, O. 49 r. 3 does not require service of the nisi order or the ex parte summons on the defendant. In Loo Chay Meng v. Ong Cheng Hoe (Gamuda Sdn Bhd, Garnishee), the issue of service on the defendant was not raised and the court made no pronouncement whether the defendant is entitled to be served with the cause papers in respect of the garnishment proceedings. As stated above, in the instant case, the garnishee, ie, Affin Bank had been duly served and they indicated that they have no objection to the order being made absolute. I also note that although the 1st defendant was not served with the ex parte summons, they were served with the order nisi. Counsel for the 1st defendant appeared before the SAR to oppose the order nisi from being made absolute. If the 1st defendant wanted a copy of the ex parte summons and the supporting affidavit, he could have obtained it by making a search. The rules or case law do not require that he should be served with a copy for the ex-parte summons before the hearing to make the order nisi absolute. Therefore, the argument on the ground that the 1st defendant was not served should fail.”. 36. The JD had also attempted to persuade this Court that based on Thara Singh Sidhu v Sault & Co & Anor [2016] CLJU 980 (High Court), Malaysian International Trading Corporation Sdn Bhd cited above and Loo Chay Meng v Ong Cheng Hoe (Gamuda Sdn Bhd, Garnishee) [1990] 1 MLJ 445 (High Court), there is a proposition in law that supports their contention that there is a requirement for the JC to serve Enclosure 1 and 2 on both JD and Garnishee. 37. On a perusal of the authorities cited by the JD above, this Court readily finds all those authorities distinguishable from the present case. This is because firstly, in all those cases cited by the JD, the objection was taken by the Garnishee and not the JD, and secondly those cases do not lay down the proposition of law that Enclosure 1 and 2 need to be served personally on the JD. 38. Next, the JD’s reliance on Order 49 Rule 4 ROC 2012 is also without merit as this provision once again concerns the Garnishee and not the JD. For ease of reference, the provision reads: - “4. No appearance or dispute of liability by garnishee (O. 49 r. 4) (1) Where on the further consideration of the matter the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may, subject to rule 7, make an order absolute in one of the forms in Form 99 under rule 1 against the garnishee. (2) An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for the payment of money.”. 39. Upon Order 49 Rule 4 ROC 2012 being silent on the position of JD, it is this Court’s finding that it is not applicable to the JD but limited to the Garnishee only. To accede to JD’s contention would have the effect of adding words that are not there in Order 49 Rule 4 ROC 2012. Refer to Thein Hock Teng & Ors v Mohd Afrizan Husain & Another Appeal [2012] 1 CLJ 49 (Federal Court): - “[31] Under the circumstances it is not the function of the Court to rewrite the statute in a way in which it considers reasonable. In other words, the High Court was not entitled to read words into that provision. Where the words of the statute are plain and unambiguous, the Court ought to give effect to its plain meaning ...”. 40. Finally, it is also important to note that the Garnishees in the present case were not disputing the debt owed by them to the JD. Again, any attempt by the JD to dispute or to contest on the judgment debt pronounced in the Civil Suit to be garnished cannot be allowed at the garnishee proceeding stage. Full and frank disclosure of setting aside of WOP order dated 28.09.2022 41. The second issue arising in this case concerns the alleged failure of the JC to make a full and frank disclosure concerning the JD’s application to set aside the WOP order dated 28.09.2022. 42. It is not disputed that the JC had obtained the WOP order dated 28.09.2022 and that the JD had applied to set it aside though unsuccessful and that an appeal is now pending before the Court of Appeal. 43. It is also undisputed that Enclosure 1 makes no mention about the WOP proceedings taken out by the JC. 44. As a general rule, in an ex-parte application, it is mandatory for a full and frank disclosure to be made to prevent an abuse of court procedure since the application is heard in the absence of the other party. See Castle Fitness Consultancy Pte Ltd v Manz [1990] 1 MLJ 141 (Singapore High Court): - “This is a rule based on public policy. It is designed to prevent abuse of the procedure of court by a person who has a special advantage in view of the absence of the other party. The Court should deal with great strictness and severity with persons who apply for ex parte injunctions. A party applying is bound to put the Court in possession of all the facts in order to enable it to judge whether the Defendant ought to be put to what may be described as a very serious sanction, ie a temporary injunction.”. 45. While Castle Fitness was in relation to an injunction application, this rule on full and frank disclosure I would hold applies generally to all forms of ex-parte applications. 46. Refer further to Thomas A Edison Ltd v Bullock [1912] 15 CLR 679 (Australian High Court) where it was held: - “Ubberima fides is required, and the party inducing the court to act in the absence of the other party fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which the party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fail.”. 47. Granted that there is an omission on the JC’s part to disclose about the WOP proceedings, the duty of the Court is to determine whether such an omission concerns a material fact or not. Refer to Noor Jahan Bt Abdul Wahab v Md Yusoff B. Amanshah & Anor [1994] 2 CLJ 249 (High Court): - “I accept that facts (i), (ii), (iv) and (v) and to a lesser extent facts (iii) and (vi) were material for the Court to know although they are really facts which constitute part of the first defendant's case. It does not, however, necessarily follow that because the plaintiff had failed to disclose these facts that an order for discharge of the injunction must inevitably follow for the Court would still have to consider whether justice requires the injunction to continue. In considering this part of the case I have asked myself whether the non-disclosure of the facts concerned was so severe that, had there been full disclosure, this Court would not have granted the interlocutory injunction.”. 48. Accordingly, even if the application to set aside the WOP is a material fact, the Court needs to still determine whether its non-disclosure would cause the Court to not allow the ex-parte order (Enclosure 6) eventually obtained by the JC. 49. In this regard, it is instructive to refer to Bakmawar Sdn Bhd v Malayan Banking Bhd [1991] 2 CLJ Rep 323 where the High Court held that: - “It is true that the defendant's letter was exhibited to the plaintiff's ex parte application but it is incumbent upon the plaintiff on an ex parte application of this nature not only to make full disclosures but also to draw attention to all relevant factors so as not to mislead the Court into making an order that it would not have necessarily made. Had my attention been drawn to the fact that the second limb of the interim injunction was no longer necessary as the Biro had already been informed of the plaintiff's account, I would not have granted the order. In this case the Court has been mislead into believing that the Biro has not yet been informed of the plaintiff's account and on this ground alone, the interim injunction - at least the second limb of the injunction, must be dissolved.”. 50. In another case of PECD Bhd & Anor v Amtrustee Bhd & Other Appeals [2010] 1 CLJ 940, the Court of Appeal held that:- “[69] The appellants' contention that there may not be a need to disclose the aforementioned facts as the appellants were making a fresh application is unacceptable. On the contrary the fact that it was a new application based on the same Scheme of Arrangement makes it all the more necessary that all facts relating to the previous application be disclosed for whatever reason it may have been dismissed. Without disclosing the antecedent of the new application the judge would not be able to undertake an objective assessment whether to grant the order sought on an ex parte basis. I would go so far as to say that the appellants' omission to provide the necessary antecedents of the application in this case is an abuse of the process of the court which may necessitate citing the 1st appellant's Chief Executive Officer who deposed the affidavit supporting the application for contempt.”. 51. In the matter instant, the learned TP held that the JD’s application to set aside the Writ of Possession order dated 28.09.2022 is unrelated to Enclosure 1. According to the TP: - “33. Sebagaimana dihujahkan JC, Mahkamah berpendapat bahawa permohonan JD di Mahkamah Tinggi untuk mengetepikan kebenaran mengeluarkan Writ Milikan adalah tidak berkaitan dengan permohonan garnisi di sini yang mana JC ingin menguatkuasakan penghakiman kewangan (monetary judgment).”. 52. This Court fully agrees with the TP’s finding above as it is evident that the Writ of Possession and the garnishee proceedings are not related to one another. Both proceedings are separate in nature as different form of execution proceedings. 53. This Court further finds that the facts concerning the JD’s application to set aside the WOP order dated 28.09.2022 is not material to the garnishee proceedings since the WOP involves property (chattel) and the garnishee proceedings involves money (debt). Thus, this Court is of the view that the learned TP did not commit any error of law in exercising his discretion. Refer to Dormeuil Frerers SA & Anor v Nicolian International (Textiles) Ltd [1988] 3 ALL ER 197 (Court of Appeal): - I will deal first with the application to set aside the ex-parte order. It is a basic principle, applicable to all ex-parte applications, that a plaintiff seeking ex-parte relief must make full disclosure to the Court of all facts which are material to the exercise of the Court's discretion whether or not to grant the relief. If such disclosure is not made by the plaintiff, the Court may discharge the ex-parte injunction on that ground alone. But if, in the circumstances existing when the matter comes before the Court inter partes, justice requires an order either continuing the ex-parte injunction or the grant of a fresh injunction, such an order can be made notwithstanding the earlier failure of the plaintiff to make such disclosure. Moreover, there is authority that, contrary to the law as it was originally laid down, there is no absolute right to have an ex-parte order obtained without due disclosure set aside: there is a discretion in the Court whether to do so or not.”. 54. In other words, even if there was a disclosure made concerning the JD’s application to set aside the WOP order dated 28.09.2022, it would not have changed the outcome of the ex-parte order made in Enclosure 6. On the facts and circumstances of the instant matter, such non-disclosure of the WOP does not by any stretch of imagination tantamount to a misrepresentation and thus cannot be held to be fatal to the garnishee proceedings. 55. To illustrate further, instances where non-disclosure of material facts would affect the validity of the ex parte order can be made to Ong Kong Kuan v Ong Kong Beng & Anor (CIMB Bank Bhd & Ors, Garnishees] [2023] CLJU 2236 (High Court). In this case, the High Court dismissed the garnishee application as the JC had failed to disclose that there was a pending bankruptcy proceedings against the JD which if allowed would have placed the JC as a secured creditor as compared to an unsecured one thus giving him priority over other creditors. “[28] Pendency of bankruptcy proceeding against the judgment debtor is a material fact to be disclosed in the ex parte application for garnishee nisi. This is because the bankruptcy proceeding is intended to preserve the assets and properties of the bankrupt for the creditors as a whole for future distribution accordance to the priority ranking recognised by the laws. When a person is adjudged bankrupt, his/her personal monies in bank accounts which have not been garnished prior to the commencement of bankruptcy shall form part of the "property of the bankrupt divisible among his creditors" within the meaning of s.48 of Bankruptcy Act. A garnishee order when granted has the effect of turning the judgment creditor from being an unsecured creditor into the secured creditor in respect of the judgment debtor's monies sough to be garnished, thereby giving the judgment creditor the priority ranking over other unsecured creditors insofar as the garnished monies are concerned. As such, pendency of bankruptcy proceeding against the judgment debtor is a material fact to be disclosed in the ex parte application for garnishee nisi.”. 56. On the other hand, the Court of Appeal in Hong Leong Ltd v Sunbird (PTE) Ltd [1990] 3 MLJ 65 (Court of Appeal) had held that such non-disclosure may not be fatal. In Hong Leong, the Appellants filed a civil suit and also applied for an ex-parte injunction to restrain the Respondents from carrying out and continuing road construction work which encroached or trespassed on their land. In the course of proceedings, an issue was raised about a letter dated 08.12.1981 that a retaining wall would be built in accordance with the plans approved by the relevant authorities. This letter was not revealed in the application for the injunction in question. 57. According to the Court of Appeal, the non-disclosure of the letter was not fatal and would not have affected the outcome of the case at all: - “Though we think that the letter of 8 December 1981 was certainly relevant to the matter in issue, we do not think that this non-disclosure is so severe that, even if it were disclosed, the judge hearing the application would not have granted the order together. We note that the trial judge did not place any significance on the non-disclosure of this letter at all. We would observe that this letter, other than stating that a retaining wall would be built in accordance with the plans approved by the relevant authorities, did not forward the plans in question. In this letter the respondents had argued that they were entitled, as a matter of necessity, to a temporary right of access to the adjacent land just for the purposes of constructing the retaining wall. This argument was accepted by the trial judge. In our opinion this argument overlooked the fact that even the respondents' own consulting engineer, Dennis Ong (DW9), admitted that the retaining wall could be constructed by another means without having to intrude beyond the 11-metre limit. One method was by the use of steel sheet piles (see evidence of PW1, Mr Tan Ee Peng). Another was by the driving of tantalized piles; in fact this was the method eventually used by the respondents. It was only a question of higher cost and a little more time. That being the case, we fail to see how it could validly be argued that the intrusion was a necessity for the purposes of constructing the wall.”. 58. In the matter instant, it is the TP’s finding that nowhere was there an explanation rendered by the JD in what manner would the non-disclosure alleged on the JC’s part affect the decision of the court in issuing the show cause order (Enclosure 6). According to the TP: - “37. Mahkamah juga bersetuju dengan hujahan JC bahawa tiada di mana-mana dalam hujahan JD yang ada diterangkan berkenaan bagaimana pendedahan maklumat tersebut akan mempengaruhi keputusan Mahkamah sama ada untuk membenarkan atau tidak permohonan JC untuk garnisi menunjuk sebab. Maka, atas alasan-alasan ini, Mahkamah berpendapat bahawa bantahan JD berkenaan isu ini juga adalah tidak bermerit.”. 59. What this means is that the JD had failed to demonstrate in detail and specifically how the alleged non-disclosure as alleged by the JD would have affected the outcome of the garnishee application and the ex-parte order (Enclosure 6) given by the Court previously. In this regard, this Court finds that the learned TP did not commit any error of law in imposing the burden on the JC to provide proof on how the so called non-disclosure of facts relating the WOP had affected the validity of the garnishee proceeding. It is trite that discretions must be exercised judiciously, and from the facts this Court is satisfied that the JC has failed to provide relevant materials to show that the learned TP had acted otherwise. 60. Finally, this Court also finds that the JD had also failed to show that such non-disclosure of the WOP by the JC had caused any form of injustice to the JD. If injustice would otherwise be caused, even the garnishee order absolute can be set aside by the Court [see: Loo Chay Meng v. Ong Cheng Hoe (Gamuda Sdn Bhd, Garnishee) [1990] 1 MLJ 445; First Consolidated Sdn Bhd v. Padu Ehsan Sdn Bhd (Majlis Perbandaran Melaka Bandaraya Bersejarah Garnishee) [1994] 4 CLJ 668]. 61. Thus, since no injustice shown, such non-disclosure cannot be said to be fatal against the JC. Conclusion 62. For reasons stated above, the JD’s appeal is dismissed with costs of RM5,000.00 to be paid by the JD to the JC subject to allocator fees. Dated: 11th August 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru Solicitors for the Judgment Creditor : Felicia Paula Mojikon M/s Lee & Lim Petaling Jaya, Selangor Solicitors for the Judgment Debtor : Brian Ernest Cumming and Yip Man Fei M/s Gideon Tan Razali Zaini Petaling Jaya, Selangor