Ng Hoe Keong v Oag Engineering Sdn Bhd (08(i)-67-03/2021(W))

1.

2.

SUN MARINE COATING (M) SDN. BHD. (Company No.: 201801016615 (1278631-D))

SYAHIRAH BINTI SAHARUDIN (NRIC NO.: 901228-14-5758) 5 THEVAGAR A/L GURUNATHAN … PERAYU - (NRIC NO.: 801011-10-6135) PERAYU

OAG ENGINEERING SDN. BHD. (Company No.: 199901027176 (502076-K))

OAG OFFSHORE PIPELINE SERVICES SDN. BHD. (Company No.: 201301000809 (1030646-X)

OAG INTERNATIONAL PIPELINE SERVICES LTD – ABU DHABI (Company No.: CN-1750397)

OAG INTERNATIONAL PIPELINE LTD. (Company No.: LPC00044)

SETIA OFFSHORE SERVICES SDN. BHD. … RESPONDEN - (Company No.: 200301029388 (631808-U) RESPONDEN) 21/04/2022 14:49:04 08(i)-67-03/2021(W) Kand. 85 S/N pkq0DNsf0y132iEzOMCmw (Dalam Perkara Mahkamah Rayuan Malaysia Rayuan Sivil No.: W-02(IM)(IPCv)-1605-10/2020

Ng Hoe Keong

Devandran A/L Arumugam

Sun Marine Coating (M) Sdn. Bhd. … Perayu - (Company No.: 201801016615 (1278631-D)) Perayu Dan

OAG Engineering Sdn. Bhd. (Company No.: 199901027176 (502076-K))

OAG Offshore Pipeline Services Sdn. Bhd. (Company No.: 201301000809 (1030646-X)

OAG International Pipeline Services Ltd – Abu Dhabi (Company No.: CN-1750397)

OAG International Pipeline Ltd. (Company No.: LPC00044)

Setia Offshore Services Sdn. Bhd. … Responden - (Company No.: 200301029388 (631808-U) Responden) S/N pkq0DNsf0y132iEzOMCmw (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia Permohonan untuk Semakan Kehakiman No.: WA-22IP-42-07/2020 Antara

OAG ENGINEERING SDN. BHD. (Company No.: 199901027176 (502076-K))

OAG OFFSHORE PIPELINE SERVICES SDN. BHD. (Company No.: 201301000809 (1030646-X)

OAG INTERNATIONAL PIPELINE SERVICES LTD – ABU DHABI (Company No.: CN-1750397)

OAG INTERNATIONAL PIPELINE LTD. (Company No.: LPC00044)

SETIA OFFSHORE SERVICES SDN. BHD. … PERAYU - (Company No.: 200301029388 (631808-U) PERAYU Dan

1.

2.

SUN MARINE COATING (M) SDN. BHD. (Company No.: 201801016615 (1278631-D))

SYAHIRAH BINTI SAHARUDIN (NRIC NO.: 901228-14-5758) 5 THEVAGAR A/L GURUNATHAN … RESPONDEN - (NRIC NO.: 801011-10-6135) RESPONDEN) S/N pkq0DNsf0y132iEzOMCmw CORAM ZALEHA YUSOF, FCJ HASNAH MOHAMMED HASHIM, FCJ RHODZARIAH BUJANG, FCJ GROUNDS OF JUDGEMENT BRIEF BACKGROUND FACTS [1] The respondents had filed a suit (suit 42) at the High Court against the applicants for, inter-alia, breach of fiduciary duty and a permanent injunction. Before the Statement of Claim was served on the applicants, the respondents obtained an Anton Pillar Order and a Protective Order against the appellants. Both orders were granted exparte by the High Court. [2] The applicants’ applications to set aside the said two Orders and to dismiss the suit for failure to serve the Statement of Claim were dismissed by the High Court. However, the High Court directed the respondents to serve the applicants with a redacted Statement of Claim which the respondents did on 21.10.2020. [3] The applicants’ appeal to the Court of Appeal against the said decision of the High Court was also dismissed on 25.2.2021. [4] Aggrieved, the applicants filed a Notice of Motion dated 9.3.2021 (Motion of 9.3.2021) for leave to appeal to the Federal Court pursuant to subsection 96(a) of the Courts of Judicature Act 1964 (Act 91). The said motion of 9.3.2021 was heard on 22.7.2021 before a single Judge of this S/N pkq0DNsf0y132iEzOMCmw Court pursuant to subsection 97(3) of Act 91. The single Judge dismissed the said motion of 9.3.2021 after hearing the submissions of the parties. [5] Now before us, the applicants filed this Notice of Motion in enclosure [47] pursuant to subsection 97(4) to discharge the order of the single Judge dated 22.7.2021. [6] Enclosure [47] was fixed for hearing before us on 15.3.2022. ISSUE [7] Whether there is any burden imposed on an aggrieved party against whom the decision by a single Judge was made under subsection 97(3) of Act 91, to show justification before his application under subsection 97(4) of the same Act can be allowed. SUBMISSIONS OF COUNSEL [8] Learned counsel for the respondents raised a preliminary objection that enclosure 47 must be dismissed in limine. [9] Learned counsel for the respondents, Encik Razlan contended that an order for discharge means the applicants are relieved from obligations as contained in the Order. Hence, there must be a positive Order or an active obligation contained in the Order sought to be discharged. In this case, he argued, the applicants’ application for leave to appeal was dismissed. Upon the dismissal, there are no obligations, sanctions or limitations placed upon the applications. Therefore, he argued, the Order of this Court dated 22.7.2021 was not capable of being discharged. S/N pkq0DNsf0y132iEzOMCmw [10] He further submitted that the said phrase “affirm, vary and discharge” also appear in sections 44 and 80 of Act 91. As those sections deal with interim, preservation or stay order pending the hearing of a full appeal at the Court of Appeal or the Federal Court, subsection 97(4) also must be read to limit its application for instances where there remains a pending proceeding such as an appeal before the Federal Court. [11] Further learned counsel for the respondents submitted, the appellants had failed to show what was wrong with the decision of the learned single Judge. Nothing in the affidavit of the applicants made averment that the learned single Judge was wrong in her decision and the reasons for saying so. [12] He cited the cases of Terengganu Forest Products Sdn. Bhd. v. Cosco Containeer Lines Co. Ltd. & Anor and other applications [2011] 1 MLJ 25 and the case of The Iran Nabuvat [1990] 3 AllER 9 to support his argument that an order made by a single Judge should not be overturned unless there are very strong and compelling reasons to do so. [13] For the applicants, learned counsel Dato Seri Gopal Sri Ram submitted the general rule is, that all proceedings in the Federal Court shall be heard before a panel of three judges as provided under subsection 74(1) of Act 91. However, by virtue of the non-obstante clause found in subsection 97(3) of Act 91, that provision of subsection 74(1) is overridden. Subsection 97(3) allows a single Judge to hear an application for leave to appeal to the Federal Court, notwithstanding section 74. [14] He further referred to the Hansard when section 97 was amended and the Bill was tabled at Parliament. The Minister-in-charge had stated S/N pkq0DNsf0y132iEzOMCmw that any party who is not satisfied with the decision of a single Judge can apply for his application to be heard before a panel of three judges. He, therefore, submitted that the purpose of the section was for an aggrieved party to come before the court, and that section 97 does not impose any burden to show the single Judge is wrong. He said the full Panel must hear once an application is made within 10 days after the Order of the single Judge. [15] Learned counsel for the applicant had cited the case of Gurubachan Singh a/l Bagawan Singh and Anor v Vellasamy a/l Ponnusamy and 3 others, Federal Court Civil Application No. 8(i)-67- 03/2021 (w) whereby this Court had allowed similar applications under subsection 97(4) of Act 91 on 1.11.2021 DECISION [16] We begin by reproducing the relevant sections 74 and 97 of Act 91 to better understand the issue. “Composition of the Federal Court

74.

97.

(v) Pindaan kepada Seksyen 97 adalah bertujuan untuk membolehkan permohonan bagi kebenaran untuk merayu kepada Mahkamah Persekutuan dibuat kepada seorang hakim sahaja. Buat masa ini permohonan perlu didengar oleh panel tiga orang hakim Mahkamah Persekutuan. Bagaimanapun pihak yang tidak puas hati dengan keputusan seorang hakim itu boleh memohon untuk ke panel penuh tiga orang hakim.” [27] The above quote is found at page 31 of the Hansard. However, we noted at page 30 of the same, the Minister also stated that the purpose of the amendment is “untuk mempercepatkan proses pendengaran kes-kes di Mahkamah atasan khususnya Mahkamah Persekutuan” (to expediate the process of hearing of cases at the apex court). In our considered view, that was the intention of the Legislature when amending section 97 of Act 91. S/N pkq0DNsf0y132iEzOMCmw [28] We found there was nothing wrong to refer to the Hansard to ascertain what the intention of Parliament when enacting the law; especially when the statement reported in the Hansard was made by a Minister. See the decision of this Court in Chor Phaik Har v Farlim Properties Sdn. Bhd. [1994] 3 MLJ 345. [29] Learned counsel for the appellants had referred to the decision of this Court in Gurubachan Singh, supra. In that case it was brought to this Court’s attention in the affidavit in support of the application as well as the submission of the applicants’ counsel, of two conflicting decisions of the Court of Appeal on the same issue. From the CMS recording, it was recorded that was the reason why the application was allowed. In other words, the applicants had forwarded his grounds of application and this Court allowed the application as this Court was satisfied with the ground submitted by the applicants in that case. [30] In this application before us, we found the affidavit in support of enclosure [47], i.e. enclosure [48], merely contains 8 paragraphs, from which the relevant paragraphs are reproduced below: “5. On 22.7.2021, a single judge of this Honourable Court acting under section 97(3) of the Courts of Judicature Act 1964 dismissed the Applicants’ aforesaid motion for leave with an ordered cost of RM40,000.00 subject to the drawing of allocator.

The Applicants abovenamed respectfully moves this Honourable Court under section 97(4) of the Courts of Judicature Act 1964 to discharge the said order and grant the Applicants’ leave to appeal on the questions of law formulated and attached to the motion filed herein. S/N pkq0DNsf0y132iEzOMCmw

A copy of the Writ dated 29.7.2021, Ex parte Anton Piller Order dated 5.8.2021 and Ad Interim Order dated 25.8.2021 is reproduced and shown to me and marked as Exhibit A-31, Exhibit A-32 and Exhibit A- 33 respectively.

Wherefore, I humbly pray for the order in terms for the motion filed herein.” [31] There was nothing in the affidavit in support to show why the application was filed other than the fact that the leave application filed earlier had been dismissed by the single Judge hearing it. No reasons were given as to what was wrong with the decision of the learned single Judge. The applicant treated the application under subsection 97(4) as a matter of right. To the applicants, once an application for leave to appeal is dismissed by a single Judge, the aggrieved party can straight away within 10 days file another application for it to be heard by a panel of three judges without giving reason and the panel must hear and determine the application without looking at its merit. [32] We did not think that was the right approach. Such an approach in our view, will open the floodgates and this Court will be inundated with a host of such applications. This will merely defeat the purpose of amending the said section 97, i.e. to expediate (mempercepatkan) the hearing of such application. [33] The key point here is therefore whether this application needs justification. We agree that there was so far no direct decision of this Court on subsections 97(3) and (4) of Act 91. However, the special panel of this Court in the Terengganu Forest, supra which was established to resolve the issue concerning the proper interpretation to be given to section 96 of S/N pkq0DNsf0y132iEzOMCmw Act 91, on application for leave to appeal to the Federal Court; had also dealt with the issue of review of decision of a single Judge by a panel of three Judges. This Court had referred to the English case, The Iran Nabuvat, supra. We reproduce the relevant paragraphs thus: “[35] It has also been the gravamen of many an appellant that once leave is granted the panel hearing the appeal should not set aside that leave. Let us view the practice by other commonwealth countries on whether the appellate court, once leave is given, can or would rescind that leave. Cases seem to show that when the facts of the case or all relevant and material facts are not disclosed candidly, concisely and comprehensively, particularly when leave was granted ex parte, such appellate court is not prevented from rescinding that leave. See Toronto Railway-Company. v Corporation of the City of Toronto where facts are nor correctly brought to the notice of the appellate court to which leave was sought but the appeal was from the Board of Railway Commissioners for Canada and not from a court in the true sense. See also Mossoorie Bank Ltd. v Albert Charles Raynor. [36] In some circumstances appeal to the Court of Appeal in England also require leave. In The Iran Nabuvat a full court of three members panel of Court of Appeal was asked to review leave to appeal granted by a single judge viz. Bingham LJ. Lord Donaldson of Lymington MR had this to say: It is the power to ask for a consideration inter partes in open court which has been exercised by the defendants in this case. They seek a reconsideration of the leave to appeal which was granted by Bingham LJ on a consideration of the written application of the plaintiffs for leave to appeal, and in the light of the documents which accompanied that written application. … The grant or refusal of leave to come to the Court of Appeal is a very sensitive power which has to be exercised by the court. This bias must S/N pkq0DNsf0y132iEzOMCmw always be towards allowing the Full Court to consider the complaints of the dissatisfied litigant, and the justification for leave to appeal in its present form or (if as I hope will come to pass) in an extended form must be that it is unfair to the respondent that he should be required to defend the decision below, unfair to other litigants because the time of the Court of Appeal is being spent listening to an appeal which should not be before it and thereby causing delay to other litigants, and unfair to the appellant himself who needs to be saved from his own folly in seeking to appeal the unappealable. The test of counsel for the defendants would really involve the single Lord Justice or, as is likely to be the case when there are changes in legislation, two Lords Justices hearing the application and deciding, if not whether the appeal should succeed, at least, as counsel would have us say, whether there was a probability and a reasonable likelihood of the appeal succeeding. This comes very near to actually hearing the appeal. For my part, I have no doubt at all that no one should be turned away from the Court of Appeal if he has an arguable case by way of appeal. That leads one on to the question of whether there is an arguable case in these particular circumstances. Again for my part, if a Lord Justice of Appeal, having studied the matter on paper, is satisfied that there is an arguable case and grants leave. I think it would require some very cogent reasons for disagreeing with his decision, and it certainly would not be a reason that the court which was asked to reconsider his decision did not itself think that the matter was arguable. It is certainly within my experience, and I do not doubt within the experience of every member of the Court of Appeal, that having preread an appeal, one member of the court will say, “I really think this is unarguable”, and other members of the court will say, “I do not know, I really think there is a point here which needs looking at seriously.” In the end, you may get a dissenting judgment or it may be that they will all S/N pkq0DNsf0y132iEzOMCmw come to the conclusion that the appeal is arguable or even that it should succeed. But the point that I am making is that, if one Lord Justice thinks that an appeal is arguable, it is really necessary, in my view, for anybody seeking a reconsideration of that to be able to point fairly unerringly to a factor which was not drawn to the Lord Justice’s attention, because, perhaps, it did not feature in the documents which has been studied, or to the fact that he has overlooked some statutory provision which is decisive, or some authority which is decisive, in the sense that the appeal will inevitably fail. That is really what leave to appeal is directed at, screening out appeals which will inevitably fail. [37] If that is the test of reviewing the decision of a single judge deciding the question on paper of whether leave should be granted, what more when leave is granted by a panel of three judges as is the practice of our Federal Court. According to The Iran Nabuvat’s decision in order for any leave granted to be reconsidered, it has to be shown that certain facts or documents had not been studied by the judge granting leave or if that judge had overlooked some statutory provision or authority which is decisive based on which the appeal would inevitably fail if such appeal had been heard. This principle is similar to that based in the other cases earlier cited by me. [38] It is to be noted that none of these cases touch on the merits of the case. They were all based on reasons that the applicants had not been honest and sincere in disclosing the facts of their cases. To me this principle is correct because the court can always set aside any order obtained by misrepresentation or fraud.” [emphasis added] [34] It has to be noted that in The Iran Nabuvat, supra, leave to appeal was heard by a single Judge based on subsection 54(6) of the English Supreme Court Act 1981, which section had been repealed in 1999. See S/N pkq0DNsf0y132iEzOMCmw 37 Halsbury’s Laws (4th Edition) paragraphs 683 and 695. Presently, as alluded to earlier, an application for leave to appeal in the United Kingdom is considered by a panel of at least three judges, decided on paper, without a hearing. [35] As submitted by learned counsel for the respondents and we agreed, The Iran Nabuvat, supra, established a stringent test for overturning an order made by a single Judge on an application for leave to appeal. Unless there are very strong, cogent and compelling reasons to do so, an order made by a single Judge should not be overturned. [36] The Iran Nabuvat, supra, had been adopted and approved by this Court in the Terengganu Forest, supra. To apply what the Honourable Zaki Tun Azmi, CJ had stated in paragraph 37 of that case into this case, the applicants therefore need to show that “certain facts or documents had not been studied by the Judge granting leave or that the Judge had overlooked some statutory provision or authority which is decisive based on which the appeal would inevitably fail if such appeal has been heard” or if there is misrepresentation or fraud on the part of a party which has influenced the Judge’s decision. But those reasons are not exhaustive. There can be some other cogent reasons which, in our view, the applicants must justify to the Court. [37] The learned single Judge of this Court who heard this leave application and made the impugned order had given Her Ladyship broad grounds which were recorded in the CMS minutes dated 22.7.2021; thus: “I thank parties for parties’ able submission. This is my decision, for proposed leave questions No. 1 & 2 my view is that they are facts-sensitive to the matter S/N pkq0DNsf0y132iEzOMCmw which is between the parties and left to the discretion of judge hearing the application of the AP order i.e. the Anton Pilar order. This ties in with question 3, 6, 7, 8 & 12. On the proposed question 5, it talks about privileged self-incrimination, the proposed question does not reflect the facts of the case. On proposed question 9, the answer to the question is obvious that there is a presumption that the order is void. However, this does not meet the threshold to be brought up to the Federal Court. Proposed question 10 is also fact sensitive, it seeks to limit the power of the High Court in the matter which is specified in the question. Question 11 & 13 fall under the same category. Question 13 should be subjected to the discretion of the judge, premised on the facts that is before him. This question attempts to limit the scope of the discretion of the judge hearing the application of the AP order. So is question 14. Question 15 is framed on terms which are vague although it made references to the Legal Profession Act Sec. 77 & 57(b) and Legal Practices. There is no identification of which aspect of such practise to enable the court to make a proper assessment of the complaint. Based on the aforesaid, the proposed questions fail to fall within the ambit of Section 96(a) of CJA and the threshold requirements of the said section of the Act and the principles of Terengganu Forest. Therefore, the motion in Enclosure 1 is dismissed with costs of RM40,000.00 to be paid to Respondents subject to allocator fee.” S/N pkq0DNsf0y132iEzOMCmw [38] From the reasons given by Her Ladyship, it was obvious to us that Her Ladyship had thoroughly studied and deliberated all the issues before her. So, what was wrong with that decision? How did the learned single Judge err in her decision? The applicants did not explain. [39] Section 74 of Act 91 which provides for a minimum panel of three judges, is a general provision which has to be read subject to other provisions of the Act. With the amendment in 1998 to section 97 of Act 91, section 74 has to be read subject to subsection 97(3) of Act 91 which allows an application for leave to appeal to the Federal Court to be heard by a single Judge. Subsection 97 (4) provides for any aggrieved party to that decisions under subsection 97(3) to apply within 10 days of the decision to affirm, vary or discharge the said order before a panel of minimum three judges. Hence, we had no doubt that the applicants here had the right to apply accordingly under subsection 97(4) of Act 91. [40] However, we are also of the view that in order for any order under subsection 97(3) to be reconsidered before a minimum panel of three judges, cogent reasons must be given by the applicants as explained by the case of Terengganu Forest, supra; as per paragraphs 35 to 38 of the case. The subject matter of Terengganu Forest, supra was section 96 of Act 91 which was amended at the same time as section 97. Even though subsections 97(3) and (4) are not mentioned in Terengganu Forest, supra, the rationale of reconsidering the decision of a single Judge under subsection 97(4) is clearly stated in these paragraphs. To our mind, to say otherwise, will defeat the intent and purpose of inserting the subsections 97(3) and (4) of Act 91. The amendment was intended to have the result to expediate the disposal of leave applications which would entail saving judicial costs and times. To allow leave to be granted S/N pkq0DNsf0y132iEzOMCmw automatically upon the discharge of the dismissal order would definitely delay and hamper the proper administration of justice. [41] To emphasis this point, we reproduce the explanatory statement of Clause 9 of the Bill to amend subsection 97 of Act 91, thus:

Clause 9 seeks to amend section 97 of Act 91 by inserting a new subsection (3). An application for leave to appeal from the Court of Appeal to the Federal Court is currently heard by a panel of three Judges of the Federal Court. This is a waste of the court’s time. An application for leave to appeal is considered to be interlocutory matter. If an application for leave to appeal can be heard by a single Judge, three such applications can be heard by three Judges sitting separately but simultaneously and thus expediate the disposal of those applications. Those unhappy with an order made by a Judge can apply to be heard by the full panel of three Judges. [emphasis added] [42] We must reiterate, there was no cogent reasons given by the appellant, in the Motion and its affidavit in support. We are of the opinion that an application under subsection 97(4) cannot be made arbitrarily. The burden is on the applicants to show cogent reasons or that the single Judge had committed fundamental error in her decision. We therefore, answered the issue raised in the affirmative. [43] We would also like to add, that an application under subsection 97(4) of Act 91 is actually a review application. The decision made by a single Judge is still the decision of this Court. Under no circumstances will this Court review its own decision unless it can be shown that it falls within the limited ground and very exceptional circumstances as S/N pkq0DNsf0y132iEzOMCmw explained by this Court in Asean Security Paper Mills Sdn. Bhd. v Mitsui Sumitomo Insurance (Malaysia) Bhd. (2008) 6CLJ I. CONCLUSION [44] Premised on the abovementioned, we allowed the preliminary objections raised by the respondents. Consequently, enclosure [47] is dismissed in limine with costs of RM40,000.00 subject to allocator. My learned sisters Hasnah Mohammed Hashim FCJ and Rhodzariah Bujang have read this judgment in draft and concur with the reasons given and the conclusions reached. -Signed- (ZALEHA BINTI YUSOF) Judge Federal Court Malaysia Dated: 18 April 2022 For the Applicants Dato’ Sri Gopal Sri Ram, Aston Paiva, Yasmeen Soh and Rossa Severinus Messrs. Vazeer Akhbar Majid & Co. For The Respondents Razlan Hadri Zulkifli, Wong Kah Hui, Soong Hon Ming, Jess Pang and Chai Tze Jing Messrs. K H Wong & Co. S/N pkq0DNsf0y132iEzOMCmw