1. ) Mk Cooling Services v Chong Kek Fong (BA-22NCvC-435-10/2019)

MK COOLING SERVICES (No. Pendaftaran Perniagaan: SA0208112-H)

KOK YOKE MEI (No. K/P: 720827-14-5036) … PLAINTIF-PLAINTIF DAN CHONG KEK FONG (No. K/P: 801115-06-5403) … DEFENDAN GROUNDS OF DECISION

After full trial of the Plaintiff’s claim and Defendant’s counterclaim, the learned trial judge had, on 7 March 2023, allowed part of the 09/09/2025 14:50:57 BA-22NCvC-435-10/2019 Kand. 121 S/N 7DdpVlewke3Ul7Q0oAgcg Defendant’s counterclaim in Enclosure 6 and dismissed all the Plaintiffs’ claims in Enclosure 2, resulting in the following judgment (“Judgment”): “(a) Tuntutan Plaintif-Plaintif ditolak dengan kos;

Defendan dideklarasikan berhak untuk mendapat setengah bahagian semua aset, dana dan keuntungan MK COOLING SERVICES (No. Pendaftaran SA0208112-H) (selepas ini dirujuk sebagai “Perniagaan Tersebut”) yang ditaksir adalah wujud setakat 09.10.2019;

Suatu akaun dibuat ke dalam aset dan dana Perniagaan Tersebut untuk tempoh antara 01.01.2018 dan 09.10.2019, termasuk butir-butir semua simpanan, pengeluaran dan pembayaran (“deposits, withdrawals and payments”) yang dibuat dari akaun bank Perniagaan Tersebut, di mana Plaintif-Plaintif dikehendaki untuk menyerahkan kepada peguam cara Defendan semua butir-butir sedemikian dalam tempoh masa DUA (2) bulan dari tarikh penyerahan Perintah ini;

Suatu akaun dibuat untuk semua bil, invois, pesanan belian, pesanan hantaran, resit bayaran, baucer gaji S/N 7DdpVlewke3Ul7Q0oAgcg dan/atau mana-mana dokumen lain yang berkaitan dengan pengendalian perniagaan Perniagaan Tersebut untuk tempoh antara 01.01.2018 dan 09.10.2019 di mana Plaintif-Plaintif dikehendaki menyerah kepada peguam cara Defendan semua dokumen-dokumen sedemikian dalam tempoh masa DUA (2) bulan dari tarikh penyerahan Perintah ini;

Semua dana, asset dan keuntungan (atau nilai wangnya) yang dimiliki oleh Perniagaan Tersebut setakat 09.10.2019, seperti yang diakuan dalam ini, diperintahkan untuk dibahagikan secara sama rata di antara Defendan dan Plaintif Ke-2 dan untuk bayaran selarasnya dibayar oleh Plaintif Ke-2 kepada Defendan; dan

Kos RM15,000.00 dibyar oleh Plaintif-Plaintif kepada Defendan.” (emphasis added)

Both parties were aggrieved with the Judgment and subsequently filed their respective notices of appeal to the Court of Appeal:

vide Notice of Appeal No.: B-02(NCvC)(W)-579-04/2023 dated 4 April 2023, the Plaintiffs are appealing against the entire Judgment (“Plaintiffs’ Appeal”); and

vide Notice of Appeal No. B-02(NCvC)(W)-580-04/2023 dated 4 April 2023, the Defendant is appealing against part of the Judgment, which dismissed the Defendant’s other prayers in the counterclaim (“Defendant’s Appeal”).

Two years after the Judgment was delivered, the Defendant filed an application in Enclosure 108 under Order 43 rule 3 of the Rules of Courts 2012 (“RC 2012”) for an account taking in respect of funds, assets and profits held by the First Plaintiff.

Subsequent to the filing of Enclosure 108, the Plaintiffs filed an application in Enclosure 111 to stay the execution of the entire Judgment pending the disposal of the aforesaid appeals.

In the Defendant’s Written Submission in Enclosure 117, the Defendant raised an issue regarding the Plaintiffs’ alleged contempt for not complying with the Judgment within the stipulated two-month deadline. The Defendant contended that the Plaintiffs must first purge their contempt before they can be heard, which they failed to do. The Defendant relied on the decision of the Supreme Court in Wee Choo Keong v MBF Holdings & Anor and another appeal [1993] 2 MLJ 217.

It is pertinent to note that:

in Wee Choo Keong v MBF Holdings & Anor and another appeal [1993] 2 MLJ 217, the applicant obtained leave of the Court to initiate contempt proceedings against Wee Choo Keong for failing to comply with an interlocutory ex-parte injunction. In that case, there was a prima facie finding of contempt on Wee Choo Keong;

unlike Wee Choo Keong’s case, for the past two years, the Defendant did not file any leave application to commence contempt proceedings against the Plaintiffs. Since no leave to commence contempt proceedings against the Plaintiffs has been obtained, there cannot be any prima facie finding of contempt against them. The Defendant’s complaint against the Plaintiffs is a mere allegation of contempt. Therefore, it would be premature for the Defendants to demand that the Plaintiffs purge their contempt before they can be heard when there is no prima facie finding of contempt made against the Plaintiffs;

even if the Plaintiffs are in contempt, I am of the opinion that this Court still has the discretion to allow the Plaintiffs to be heard. In Wee Choo Keong v MBF Holdings & Anor and another appeal [1993] 2 MLJ 217, Abdul Hamid Omar LP S/N 7DdpVlewke3Ul7Q0oAgcg (as he then was) in delivering the decision of the Supreme Court observed: “… We are in favour of the views expressed by Denning LJ in Hadkinson’ that it is a matter of discretion depending on the circumstances of the case whether or not a litigant ought to be heard notwithstanding his contempt. This flexible approach to the jurisdiction is based upon a discretion to be exercised in accordance with the circumstances of the case which was accepted by the House of Lords in X Lid & Anor u Morgan-Grampian (Publishers) Ltd & Ors…” (emphasis added)

in this case, both parties are challenging the Judgment and have filed appeals to the Court of Appeal. Both appeals are now fixed for another part-heard on 13 March 2026; and

nowhere in the affidavits filed by both parties does it show that the Defendant has raised the same issue of contempt in the aforesaid appeals before the panel of the Court of Appeal. When no such complaint is made in either appeal, the Defendant’s attempt to raise the issue of contempt now (after the part heard of the appeals on 3 March 2025) is a clear afterthought on the part of the Defendant. The Defendant cannot now approbate and reprobate on this S/N 7DdpVlewke3Ul7Q0oAgcg issue (Cheah Theam Kheng v. City Centre Sdn Bhd & Other Appeals [2012] 2 MLRA 125).

Based on the foregoing factors, the Plaintiffs have the right to be heard.

Now, I will deal with Enclosure 111.

Is there any special circumstance to justify Enclosure 111?

For Enclosure 111, both the Plaintiffs and Defendant went to great lengths to show the merits of their appeals. However, this is not necessary. The court will not consider the merits of the appeal when deciding whether to stay the execution of the Judgment. I am guided by the decision of the Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1. In that case, the Federal Court dismissed the applicant’s application for a stay of execution. In delivering the decision of the Federal Court, Augustine Paul FCJ (as he then was) held that: S/N 7DdpVlewke3Ul7Q0oAgcg “Having expressed my views on the law I shall now consider the motion. Both parties delved into some length on the merits of their respective case in the affidavits filed and the submission made in court. The merits of a party’s case in a stay application is not a relevant matter for consideration… As Abdul Hamid Mohamad JCA (as he then was) said in Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 3 CLJ 380at p. 403: The weight of authorities appears to me to say that the 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). Lee Hun Hoe CJ (Borneo) said in the Federal Court in Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1974] CLJU 136; [1974] 1 LNS 136; [1976] 1 MLJ 131 at p. 132: S/N 7DdpVlewke3Ul7Q0oAgcg Allegations that there has been misdirection that the verdict of judgment was against the weight of evidence, or that there was no evidence to support the verdict or judgment, are not special circumstances on which the court will grant the application. See Monk v. Bartram [1891] 1 QB 346. It is therefore unnecessary for me to consider the merits of the respective case of the applicants and respondents.” (emphasis added)

Based on the foregoing factors, the merits of the appeals are not special circumstances and thus, they should not be considered for the purpose of Enclosure 111.

The Defendant contended that Enclosure 108 will not destroy the substratum of the appeals. The Defendant also contended that Enclosure 111 should be dismissed based on the following reasons:

first, according to the Judgment:

the Defendant was entitled to half of the assets, funds and profits of the First Plaintiff as of 9 October 2019. All the assets, funds and profits of the First Plaintiff as of 9 October 2019 must be equally divided between the Second Plaintiff and Defendant; and

(ii) the Defendant was entitled to obtain information and financial documents pertaining to the First Plaintiff’s accounts such as deposit, withdrawal payments, bills, invoice, purchase order, delivery order, payment receipt, salary voucher and any other business-related documents transacted between 1 January 2018 and 9 October 2019. All this must be provided within two months from the date of the Judgment;

second, the Defendant had the right to execute the

after the sealed Judgment was served on the Plaintiffs’ former solicitors on 9 June 2023; and

(ii) after the sealed Judgment was served on the Plaintiffs on 3 March 2025; S/N 7DdpVlewke3Ul7Q0oAgcg

first, both parties are appealing against the Judgment. The Plaintiffs’ Appeal and the Defendant’s Appeal were part-heard on 3 March 2025. The part-heard will resume on 13 March 2026 (Exh. “KYM-4” of Encl. 112). This is no longer the case when the appeal has not been heard at all. Therefore, the substratum of the appeals should not be disturbed or destroyed by the execution of the Judgment before the next round fixed for part-heard on 13 March 2026. If the execution of the Judgment is not stayed, it will undermine the appeal process. Therefore, it is crucial to preserve the status quo of the parties pending the disposal of the appeals (Erinford Properties Ltd v. Cheshire

second, if the execution of the Judgment is not stayed and Enclosure 108 is allowed, all the information and accounts related documents will be furnished to the Defendant. Once the Plaintiffs have provided their accounting information and documents to the Defendant, this action cannot be reversed. The circumstances of this case differ from those in situations involving a monetary judgment that can be refunded if the S/N 7DdpVlewke3Ul7Q0oAgcg appeal is successful. If the Plaintiffs’ Appeal is allowed following the account-taking process, the outcome of the Plaintiffs’ Appeal would be rendered nugatory (Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1; RHB Sakura Merchant Bankers Bhd v Tan Sri Dato’ Ting Pek Khiing (No 2) [2004] 2 MLJ 315).

third, as stated paragraph 17.2 of the Defendant’s Affidavit In Reply (Encl.114), the two-month deadline commenced on 3 March 2025 and ended on 3 May 2025. Enclosure 108 was filed on 29 May 2025. This shows that the Defendant is serious about Enclosure 108;

fourth, all the allegations of breach of fiduciary duties did not hold water. At the material times, the Defendant was the First Plaintiff’s partner;

fifth, in the Plaintiffs’ Reply To Defence and Defence To Counterclaim, the Plaintiffs pleaded this: “Defendan turut diberikan akses kepada akaun dan maklumat penuh tentang [semua hal berkenaan dengan Perniagaan Tersebut]”

sixth, the account taking application in Enclosure 108 is the Defendant’s statutory right to do so; and

seventh, there are no special circumstances to justify Enclosure 111. S/N 7DdpVlewke3Ul7Q0oAgcg 12 13. I am unable to accept the Defendant’s contention that there are no special circumstances to justify Enclosure 111. I am of the view that there are special circumstances to justify Enclosure 111. They are as follows:

It is pertinent to note that the Defendant waited more than two years before filing Enclosure 108. This indicates that there is no urgency in proceeding with Enclosure 108 pending the hearing dates of the appeals, scheduled for 3 March 2025 and 13 March

It is also pertinent to note that the Defendant only filed Enclosure 108 after both appeals were partly heard by the Court of Appeal on 3 March 2025. In fact, it was filed two months after the part-heard.

I am also of the view that there is no prejudice to the Defendant if Enclosure 111 is allowed. In the event the Plaintiffs’ Appeal is dismissed, the Defendant can proceed with the hearing of Enclosure 108.

There are special circumstances to justify Enclosure 111.

Based on the foregoing reasons and in the interest of justice, I allow Enclosure 111 with no Order as to cost. Dated 9 September 2025 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiffs : Mr. Ganeraja Krishnan (Mr. Harshaan Zamani) (Messrs. Karpal Singh & Co.) Counsel for the Defendant : Ms Ng Yueng May (Messrs. Amutha Wong)