1. Ler Cheng Chye v Billion Shopping Centre Sdn Bhd (24-752-06/2015)

1.

LUM TUCK CHEONG … PLAINTIFFS BILLION SHOPPING CENTRE SDN BHD … DEFENDANT 2 Grounds of Judgment (Encosure 18 – Application to cross examine deponent) A. BACKGROUND FACTS [1] The present application before this Court is an application by the Defendant in Enclosure 18 to cross-examine Mr. Ler Cheng Chye on all the affidavits that he had deposed in support of the Plaintiffs’ Originating Summons. [2] Before this Court proceeds to consider the merits of the Defendant’s Enclosure 18, this Court will first set out the background facts that led the Defendant to file the present application. [3] Both the Plaintiffs (i. Ler Cheng Chye ii. Lum Tuck Cheong) are accountants by profession having an address at C/O Ler Lum Advisory Services Sdn Bhd, B-3-11, Megan Avenue 11, No.12 Jalan Yap Kwan Seng, Kuala Lumpur. 3 [4] The Defendant (Billion Shopping Centre Sdn Bhd) is a company incorporated under the Companies Act 1965 which operates Billion Shopping Centre in Kajang Selangor and has investments in unquoted shares in 35 other subsidiary companies throughout Malaysia. [5] In 2006, an individual by the name of Chin Keat Seng had filed a petition under Section 181 (“181 Petition”) of the Companies Act 1965 in the Shah Alam High Court vide Petition No. 26-5-2006 against the Defendant and six other individuals. Chin Keat Seng (Petitioner), at the material time was one of the Defendant’s directors and was also a shareholder. It must be noted that the Defendant here was the First Respondent in the 181 Petition. [6] Pending the hearing and disposal of the 181 Petition, the Petitioner had also filed an interlocutory application for an Interim Receiver to be appointed to take control and manage all assets, money and/or proceeds of the Defendant and to operate and manage the Defendant’s back accounts and/or cash balances. 4 [7] The Petitioner’s application was granted by the High Court on 23.8.2010 (“First High Court Order”). This First High Court Order also set out provisions for the appointed Interim Receiver’s remunerations, liabilities, payments, costs, charges and expenses relating to their tasks and duties during the receivership. The relevant terms of the First High Court Order in respect of such provisions can be found in items 1, 5 and 6 of the order which are as follows: “Item 1: Bahawa sehingga perbicaraan tindakan ini atau sehingga sebarang perintah selanjutnya, Ler Cheng Chye (No. K.P. 531103-10-5757) [Lesen Liquidator No. 871/04/11 (J/PH)] dan Lum Tuck Cheong (No. K.P. 581012-10-6389) [Lesen Liquidator No. 1005/05/11 (J/PH)] dilantik untuk mengendali dan mengurus semua aset, wang dan/atau hasil Responden Pertama dan diberi autoriti untuk mengoperasi dan mengendalikan akaun-akaun bank dan/atau baki-baki tunai Responden Pertama;” “Item 5: Bahawa Pemegang Interim diberi indemniti terhadap semua liabiliti, upah, kos, caj dan bayaran yang dibuat secara berpatutan oleh Pemegang Interim semasa menggunakan kuasa dan menjalankan kewajipan yang dinyatakan, DAN 5 BAHAWA bayaran tersebut dibuat dari aset Responden Pertama dan diberi keutamaan sebelum semua pemiutang. Item 6: Bahawa upah Pemegang Interim dibuat dari aset Responden Pertama secara bulanan menurut bil yang dikeluarkan, dan dibayar berasaskan kos masa yang dihabiskan oleh Pemegang Interim dan/atau pekerjanya pada kadar jam biasanya;” [8]

pelantikan penerima-penerima interim Encik Ler Cheng Chye (No. K/P: 531103-10-5757) Lesen Likuidator No. 871/04/11 (J/PH) dan Encik Lum Tuck Cheong (No. K/P: 581012-10-6389) Lesen Likuidator No. 1005/05/11 (J/PH) (“PI”) bukanlah suatu perkara yang diperlukan (not necessary) untuk memelihara 7 aset-aset Billion Shopping Centre Sdn Bhd (“BSCSB”) sementara menunggu pelupusan Petisyen No. 26-5-2006 (“Tindakan tersebut”).

…

PI dilantik sebagai Akauntan Pemantau BSCSB berkuatkuasa dari hari perintah ini.

Pengurusan BSCSB dikembalikan sepenuhnya kepada lembaga pengarah BSCSB.

Fi akauntan Pemantau hendaklah dibayar oleh pihak yang kalah dalam Tindakan tersebut.

…

Terma-terma dalam perintah Mahkamah Tinggi bertarikh 23.08.2010 dipinda selaras dengan terma perintah ini. [13] Having carried out their statutory duties as Interim Receivers of the Defendant pursuant to the First High Court Order until the substitution 8 ordered by the Court of Appeal and on the premise of Items 5 and 6 of the First High Court Order, the Plaintiffs had demanded for their remuneration and charges be paid by the Defendant. By issuing a letter of demand dated 18.8.2011 to the board of directors of the Defendant, the Plaintiffs demanded the payment of the sum of RM886,005.90 being the outstanding Interim Receivers’ costs and expenses due to them for interim receivership period between 23.8.2010 to 20.7.2011. Together with their letter of demand, the Plaintiffs had also enclosed a schedule (the schedule) containing full particulars of time spent and the basis of time cost for the various tasks and duties dated 21.4.2011 comprising of 197 pages. [14] This Court must emphasize here that the schedule is also exhibited as Exhibit “LCC-14” of the Affidavit in Support of the Plaintiffs’

[15] The Defendant’s board of director by its letter dated 14.9.2011 insisted that the Plaintiffs to apply to the Court for approval of their remuneration or have their charges validated by Court. 9 [16] The insistence of the Defendant’s board of director for a Court Approval had led the Plaintiffs to file an Originating Summons (Enclosure 1) on 23.6.2015. By their Enclosure 1, the Plaintiffs sought for the following reliefs: i. A declaration that the Plaintiffs are entitled to be paid their remuneration on the terms contained in the Order dated 20.7.2011. ii. That the Plaintiffs’ remuneration as Interim Receivers from 23.8.2010 to 20.7.2011 be approved in the amount of RM926,809.00. iii. That all costs and expenses incurred by the Plaintiffs from July 2010 to July 2011 be approved in the sum of RM135,496.45. iv. That the remuneration paid to the Plaintiffs totaling RM176,299.55 out of the assets of the Defendant towards 10 payment of their remuneration as Interim Receivers and out of pocket expenses be approved. v. That the Defendant do pay the Plaintiffs the outstanding remuneration and costs and expenses of RM886,005.90 as fixed by this Honourable Court. vi. That the costs of this application on solicitor-client basis be paid by the Defendant. vii. Further or other relied as this Honourable Court thinks fair and expedient. [17] The Plaintiffs’ application was strenuously opposed by the Defendant and by November 2015, the Defendant had filed two affidavits in reply in opposing the Plaintiffs’ application. While the parties were still in the midst of exchanging their affidavits in respect of Enclosure 1, the Defendant had on 12.11.2015 filed Encl.18 to seek a court order compelling the attendance of the 1st Plaintiff, Mr Ler Cheng 11 Chye (“LCC”) to be cross-examined on all the affidavits he had deposed in support of the Plaintiffs’ Originating Summons. B. THE LAW [18] The law and the principle relating to an application for cross-examination of a deponent are trite and well settled. It is trite law that where in any matter or cause which had been begun by Originating Summons and in such proceedings, on the application by any party the Court has discretionary power to order or to compel a deponent of an affidavit to attend court for cross-examination on his/her affidavit. [19] The Court’s wide discretionary power to summon attendance of a deponent to be cross-examined is clearly stipulated under Order 38 Rule 2(2) of the Rules of Court 2012 (ROC 2012) which reads; “ In any cause or matter begun by originating summons and on any application made by notice of application, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the court may, on the application of any party, 12 order the attendance for cross examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.” [20] While this Court recognizes the conferment of such general and unlimited power under Order 38 Rule 2(2) of the ROC 2012, this Court also acknowledges that this discretionary power must be judiciously exercised with due regard to the principle of law and authorities binding on it. Thus it would be apt for this Court at this juncture to address and digest the cases which were brought to this Court’s attention by both solicitors of the Plaintiffs and the Defendant in light of this discretionary power. i. In Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638, it was held in paragraph [25] that there are three prime considerations which would influence the Court in the exercise of its discretion to allow or disallow cross-examination on affidavits, namely:- 13 i) the truth of the averment in the affidavit must be challenged or the issues of fact identified. ii) cross-examination would only be allowed if the disputed fact is relevant to the issue to be decided and must be limited to that issue only; and iii) cross-examination would not advance the cause of justice and should be refused if there is sufficient affidavit evidence or contemporaneous documents to enable the court to property decide without the need of cross-examination. ii. In Regional Centre for Arbitration v Ooi Beng Choo & Anor [1998] 2 MLJ 383, it was held at page 391 that:- “It is settled law that the court retains an absolute discretion whether or not to allow to cross-examine a deponent on his affidavit. Generally, cross-examination will not be allowed unless there is a question of fact to be tried which requires viva voce testimony tested by cross-examination (see Arab-Malaysian Merchant Bank Bhd v City Properties Sdn Bhd [1992] 4 CLJ 2123), or where there are ‘special circumstances’” Re Smith & Fawcett Ltd [1942] 1 All ER 542; [1942] Ch 304. In 14 the sphere of judicial review proceedings, it is matter for the discretion of the court; it should not be allowed except where the court believes that it is necessary in order that justice may be done between the parties (per Lord Denning MR in George v Secretary of State for Environment & Anor (1979) 38 P & CR 609…” iii. In Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189, Salleh Abas FJ in considering whether to exercise his discretion as regards the respondent’s application for cross-examination at page 190 had stated this: “It is necessary for me to see how the proposed cross-examination would be relevant to the issue in the appellant’s application. An examination of this issue is therefore essential…” iv. In Emporium Jaya (Bentong) Sdn Bhd v Emporium Jaya (Jerantut) Sdn Bhd (No. 2) [2002] 5 MLJ 675, Ramly Ali J ( as he then was ) stated at page 685 C-D:- 15 “In order to enable me to exercise my judicial discretion as regards the present application made by the applicants in the present case, it is necessary for me to see how the proposed cross-examination would be relevant to the issue in the petition. An examination of this issue is therefore essential in order to enable me to determine whether the applications are made ‘without just cause, or motivated by desire to delay proceedings or without bona fide or sham or vexatious.” v. In Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd [2001] 4 MLJ 56, the Court of Appeal held inter-alia:

(Per Siti Norma Yaakob, NH Chan JJCA and KC Vohrah J concurring) As to whether the dismissal of the appellants' oral application fell within the ambit of ss 67(1) and 68 of the Courts of Judicature Act 1964 so as to be a judgment or order which was appealable, the instant case was concerned with a substantive application under O 38 r 2(3) of the Rules of the High Court 1980 ('the RHC'). The lack of formal application here which the parties were prepared to do away with due to a constraint of time did not change the character of the application. As such, when the judge decided that 16 the petition could proceed without the necessity of cross-examining any deponent, he had made an order on a substantive application for which a dissatisfied party could appeal (see pp 60H, 61D-E); Re Products Ltd [1985] 1 NZLR 710 distinguished.

(Per Siti Norma Yaakob JCA, KC Vohrah J concurring) The grant or refusal of an application under O 38 r 2(3) of the RHC was very much an exercise of a judge's power of discretion and the question which had to be determined was whether the judge had exercised his discretion judicially. He had taken into consideration that the appellants had never identified the issues for which they maintained cross-examination had become necessary, nor had they shown that the factual disputes which they alleged were raised by the respondents' affidavits were relevant to their petition to warrant cross-examination. The judge had also taken into consideration the appellants' delay in making the application to cross-examine. Under these circumstances, the trial judge had not erred in law or in principle when he exercised his discretion, as he had 17 put his mind to relevant considerations in deciding as he did (see pp 61F-I, 62A, C).

(Per KC Vohrah J, Siti Norma Yaakob JCA concurring) It was important to take into account all factors when considering an application for cross-examination and if it has little relevance or little weight to the issue which the judge has to decide, then cross-examination should not be permitted (see p 64B); Comet Products v Hawkex Plastics [1971] 1 All ER 1145 (folld) and Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189 (folld) followed. The judge below had certainly considered the issue of relevancy. He was mindful that although the petition was grounded under s 218 of the Act, yet counsel for the petitioners had argued that cross-examination was necessary because the basis of the petition was not only mismanagement of the affairs of the company, which fell under s 218 of the Act, but also oppression of minority rights, which fell under a different provision, s 181 of the Act. Quite clearly, the bringing in of the ground of oppression of minority rights under s 181 of the Act was completely irrelevant (see pp 64H-65A). 18 vi. Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng [2003] 5 MLJ 56), Abdul Aziz J (as he then was) held inter-alia: “It is, therefore, not true in every case that the court is equipped to deal with conflicts in affidavit evidence without resort to cross-examination. Where it is necessary to come to a determination of the matter that is the subject of a conflict of affidavit evidence and it is not possible to reject the evidence of one side for any of the stated reasons, the court is not equipped to deal with the conflict without resort to cross-examination.” [21] The Plaintiffs had objected to the Defendant’s application on two grounds, namely: i. there was delay on the part of the Defendant in making application; and ii. there are no merits in the Defendant’s application. The Defendant’s Argument 19 [22] The Defendant’s application to cross-examine LCC was grounded on the following arguments: i. the Plaintiffs by their Enclosure 1 are claiming from the Defendant payment for all charges, remuneration and expenses due to them for carrying out substantial works and tasks during the interim receivership and to substantiate their claims, the Plaintiffs had exhibited voluminous documents in their affidavits supporting Enclosure 1. The Defendant however had challenged the Plaintiffs’ necessity to carry out many of the works the Plaintiffs claimed that were necessary. The Defendant had also in their affidavits in reply alleged that the Plaintiffs’ artless discharge of its office has caused damage to the Defendant’s business. The artless conducts of the Plaintiffs according to the Defendant do not warrant the Plaintiffs to be paid any remuneration. ii. In view of the numerous challenge raised by the Defendant against the Plaintiffs’ claims, the Defendant had contended that there are 14 Disputed Matters / Issues that require this Court’s 20 determination. The 14 disputed matters / issues which have been tabulated by the Defendant in Exhibit LSH-1 of Enclosure 22 are as follows:

Whether the Plaintiffs are entitled to claim from the Defendant remuneration, costs and expenses for the following:

remuneration as Interim Receivers from 23.8.2010 to 20.7.2011 in the amount of RM926,809.00;

costs and expenses incurred by the Plaintiffs from July 2011 in the sum of RM135,496.45 which consist of –

RM25,368.75 as costs and expenses incurred;

(ii) RM92,368.75 as fees for the Plaintiffs’ solicitors, Messrs Iza Ng Yeoh & Kit;

(iii) RM10,000.00 as charges of Datamet Merchant Consultants Sdn. Bhd. (“Datamet”); and

(iv) RM7,759.20 as charges of Anirass Gaya Security Services Sdn. Bhd. (AGSS’). 21

Whether it was necessary for the Plaintiffs to peruse personal files of the Defendant’s employees.

Whether AGSS’ the appointment as additional security guards by the Plaintiffs was necessary.

Whether renewal of the Defendant’s insurance policies by the Plaintiffs with Hayat Insurance Brokers Sdn. Bhd. (“Hayat Insurance”) instead of Hong Leong Assurance Berhad (“HLAB”), which was the Defendant’s existing insurers prior to the Plaintiff’s appointment as interim receivers of the Defendant, was for the best interest of the Defendant.

Whether the Plaintiffs’ services as interim receivers of the Defendant was required for the renewal of licenses and permits even though this was something that could have easily been undertaken by the Defendant’s existing staff.

Whether the Plaintiffs failed to prevent RHB Bank Berhad (“RHB”) from recalling the Defendant’s only overdraft facility. 22

Whether the Plaintiff’s actions in denying the Defendant’s directors from the affixing the seal on the seal on the share certificates was just and reasonable.

Whether the Plaintiffs were entitled to retain the Defendant’s properties as liens over the purported unpaid charges of the Defendant.

Whether the Plaintiffs had caused the Defendant to lose their suppliers.

Whether the issue of indemnity of the Plaintiffs’ charges was not challenged by the Defendant in the appeal to the court of Appeal, Civil Appeal No. B-02(IM)-2771-2010.

Whether the Defendant objected to the Shah Alam High Court Order dated 23.8.2010 (“HC Order”) when it was granted.

Whether the cash collected at the Defendant’s premises was less than the payments recommended by the Defendant’s staff. 23

Whether the Plaintiffs were empowered to deal with the AGM of the Defendant.

Whether the Defendant’s subsidiaries and their employees had to be dealt with by the Plaintiffs as interim receivers of the Defendant. iii. It was also the argument of the Defendant that these 14 issues are live issues which are crucial in determining whether the Plaintiffs are justified in their remuneration claims. iv. It was further argued by the Defendant that evidence relevant to these 14 issues can only be obtained by calling LCC to give evidence as evidence by way of affidavit is not sufficient for this Court to make its finding. The Defendant finds support from the following authorities: (Lindwall v Lindwall [1967] 1 All ER 470, Chai Chung Ching Chester v Diversey (Far East) Pte Ltd [1991] 3 CLJ 444, Kay Hian & Co v Jon Phua Ooi Yong [1989] 1 MLJ 284, Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng [2003] 5 MLJ 56). 24 C. THE DEFENDANT’S DELAY IN APPLYING FOR CROSS-EXAMINATION [23] It was submitted on behalf of the Plaintiff that there was a delay on the part of the Defendant in making the application as the Defendant had only filed its application six months after the Plaintiffs’ application was filed. In support of their contention, the counsel for the Plaintiffs has relied on the decision of the Court of Appeal in the case of Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd where the Court of Appeal had affirmed the High Court Judge’s decision and held inter alia that delay would defeat the right to cross-examine. Indrani’s decision was followed by the High Court in Dato’ Dr Henry Ooi Kwee Lim v Majlis Perubatan Malaysia [2012] 3 CLJ 619. [24] On the allegation of delay, this Court is in agreement with the Plaintiffs’ counsel that there was a delay on the part of the Defendant in applying for LCC to be cross-examined on his deposition. The Defendant here had only filed Enclosure 18 on 12.11.2015. LCC’s affidavit affirmed 19.6.2015 in support of the Originating Summons 25 was served on the Defendant on 25.6.2015 and in opposing the Plaintiffs’ application, the Defendant was able to file two affidavits in reply, namely Enclosure 14 affirmed on 27.8.2015 and Enclosure 17 affirmed on 26.10.2015 refuting the Plaintiff’s claim on without the need to cross-examine LCC. [25] It must be noted that Enclosure 14 is a 24 pages affidavit, whilst Enclosure 17 runs to 14 pages. The Defendant’s ability to file two lengthy affidavits without oral evidence of LCC is telling that the Defendant was able to address the particularized items for claims put forth by the Plaintiffs. It is more probable than not that the Defendant itself finds no real necessity to call LCC for cross-examination, owing to the delay in making the application, and the Defendant’s ability to address the Plaintiffs’ claims through the Defendant’s own affidavits. [26] It is trite law that an application to cross-examine a deponent must be made without delay and should be made once the affidavit that is intended to be cross-examined has been filed. Thus, on the ground of delay, the Defendant’s application must fail. 26 [27] For the sake of completeness, this Court would proceed to consider the merits of the Defendant’s application. D. THERE IS NO NECESSITY TO CROSS-EXAMINE LCC TO DETERMINE THE ISSUES RAISED IN THE ORIGINATING SUMMONS [28] This Court is very much guided by the principles laid down by numerous decided authorities on the exercise of court’s power under Order 38 of the ROC 2012. In the present case, for this Court to determine whether the cross examination of LCC is necessary to enable this Court to make its finding on the issues raised, this Court must firstly closely examine the reliefs sought by the Plaintiffs in their application. In prayer 1 of its Enclosure 1, the Plaintiffs are basically seeking a relief of declaratory in nature that this Court declares that the Plaintiffs is entitled to be paid their remuneration during their receivership. [29] In this connection, this Court must take cognizance of the fact that when the Plaintiffs first demanded their payment in 2011 from the 27 Defendant, the Defendant’s board of director had in its letter dated 14.9.2011, insisted that the Plaintiffs should get a court order to validate their claim. In the same letter dated 14.9.2001, despite receiving the schedule itemizing the claims by the Plaintiffs, the Defendant did not at all challenge claims made by the Plaintiffs. There were no complaints at all from the Defendant that the Plaintiffs’ claims are not justified, exorbitant, the claims are for unnecessary works, unreasonable claims, artless works and so forth. This Court must reiterate here that the Defendant merely responded to the Plaintiffs’ claims asking the Plaintiffs to channel its claims through a Court’s approval. The Defendant had never contended to challenge any of the itemized claims by the Plaintiff to be unjustified, exorbitant, unreasonable, unnecessary or artless works. [30] Now, when the Plaintiffs applied for a declaration that they are entitled to their remunerations of RM926,809.00 and costs/expenses of RM 135,496.45, the Defendant had strongly challenged the claims and contended that there are 14 disputed facts which are relevant to the issues and these disputed issues cannot be resolved by affidavit evidence. It was also the contention of the Defendant that the 28 voluminous documents exhibited by the Plaintiffs in support of their claims are in-house documents and were generated by the Plaintiffs themselves, and therefore those documents are self-serving documents and must be scrutinized vide cross-examination. The Defendant suddenly contends that there is a need to cross-examine LCC on the contents of his affidavits and for him to prove the same when all this while at the time the Defendant initially received the claims itemized in volume (through the Plaintiffs’ letter) by the Plaintiffs, the Defendant never disputed any of the claims. [31] In this regard, upon close scrutiny of the two affidavits in reply filed by the Defendant in opposing the Plaintiffs’ application, this Court is in full agreement with the Plaintiffs that what the Defendant is alleging is simply that the Plaintiffs must discharge the burden of proving that the Plaintiffs are entitled to the remunerations that they are claiming. [32] It is this Court’s considered view that all of the 14 issues raised are issues that should be determined at the hearing of the Originating Summons. However, although the 14 issues may be relevant to determine the Originating Summons, this Court nonetheless 29 disagrees with the alleged necessity to call LCC for cross-examination simply because LCC’s attendance would not advance the cause of justice. In fact calling LCC for cross-examination would be a cause to an injustice causing undue delay to the proceedings. The affidavits and its exhibits have given ample room for the Defendant to dispute the claims by the Plaintiff. The hours, particulars, nature, and charges of the Plaintiffs’ claim have been clearly itemized and particularized by the Plaintiffs. [33] In fact, the Defendant has had the room to dispute the Plaintiffs’ claim since the year 2011, five (5) years ago when the Plaintiffs first demanded payment from the Defendant. The Defendant did not even bother to dispute the particulars since then and only now at this juncture five (5) years later viciously dispute the Plaintiffs’ claim. Not only that, ample room for dispute is available merely through the due process of the Originating Summons. All that the Defendant has to do is to have its own deponents to depose its grievances against the particulars of claim and exhibit its own set of evidences to challenge the Plaintiffs’ set of depositions and exhibited evidences. 30 [34] In the simplest iteration, the Plaintiffs have put forth their claims and evidences to the claims, and the Defendant has all the room to dispute the claims and put its own evidences against the Plaintiffs’ claims via exchange of exhibits. It is not as though that the truth of the Plaintiffs’ claim cannot be proven or disproven via depositions and affidavit evidences. There were evidences exhibited to corroborate the claim, surely then the Defendant (if indeed having a defence against the claim) without the need to cross-examine LCC, would have its own set of evidences and depositions to dispute the Plaintiffs’ claim. [35] The present case is not a case of an abject lack of evidences for this Court to properly determine the case. The Plaintiffs have come forth with evidences to support their claim. The case is then open for the Defendant to disprove the claim through its affidavits. The truth or the determination of the case can be addressed without the need to call LCC for cross-examination. The Defendant in its application to cross-examine had only raised 14 issues that it intends to prove to be crucial to the determination of the Originating Summon. However, what was also crucial to be proven is that cross-examination is 31 required to determine these issues. This Court has no problem to find that the issues may be relevant to the Originating Summon. But the Defendant has utterly failed to prove that there is a dire need to call LCC for cross-examination and that there is a lack of contemporaneous evidences for the Court to make a proper finding. Proving the pertinence of an issue is a matter entirely different from proving the necessity of a cross-examination.

[36] Thus, it is this Court’s finding that calling LCC’s attendance for cross-examination in the present case would only cause undue delay to the proceeding. There is sufficient affidavit evidence and contemporaneous documentation to enable this Court to determine the issues without the necessity to cross-examine LCC. [37] Based on the aforementioned reasons, this Court finds no merits in the Defendant’s application. Hence the Defendant’s application in Enclosure 18 is dismissed with costs of RM 6000.00. 32 ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 20th July, 2016 For the Plaintiff - Messrs Iza Ng Yeoh & Kit Izabella De Silve Chow Yee Wan For the Defendant - Messrs Wang Kuo Shing & Co Roger Peter Karen Lee