1. NGV TECH Sdn Bhd v Network South Pacific Limited (Admiralti in Rem: 27NCC-5-02/2015)

NGV TECH SDN BHD (No. Syarikat: 235885 – M) (Penerima dan Pengurus dilantik) (Dalam Penyelesaian)

MALAYAN BANKING BERHAD (No. Syarikat: 3813 – K) … PLAINTIF-PLAINTIF DAN NETWORK SOUTH PACIFIC LIMITED … DEFENDAN Grounds of Judgment Azizah Nawawi, J: Introduction [1] In this suit, the plaintiffs are seeking the following orders:

a declaration that the 1st plaintiff is the legal and beneficial owner of the three (3) Vessels bearing Hull Nos. 1116, 1182 and 1187 at all material times;

(ii) a declaration that the three (3) Vessels bearing Hull Nos. 1116, 1182 and 1187 were charged by the 1st plaintiff in favour of the 2nd plaintiff at all material times and the 2nd 2 plaintiff’s rights as charge of the said three (3) vessels take priority over any alleged claim of the defendant;

(iii) a declaration that the 1st plaintiff was the legal and beneficial owner of the two (2) vessels bearing Hull Nos. 1115 and 1175 at all material times and that the said two vessels were charged to the 2nd plaintiff until these vessels were delivered to one Sribima (M) Shipping Sdn Bhd and Crossborder Scrapes (M) Sdn Bhd respectively;

(iv) that the Consent Judgment dated 9.2.2011 entered in the Kuala Lumpur High Court Civil Suit No. S – 22NCVC – 62 – 2011 be set aside;

further and/or in the alternative that paragraph 3 of the Consent Judgment dated 9.2.2011 entered in the Kuala Lumpur High Court Civil Suit No. S – 22NCVC – 62 – 2011 be varied and/or set aside such that the Receiver and Manager of the 1st plaintiff, the 2nd plaintiff and the vessels bearing Hull. Nos. 1116, 1115 and 1187 are not affected in any manner by the said Consent Judgment; and

(vi) costs. [2] Having considered the evidence and the submissions of all parties, this court has dismissed the plaintiffs’ claim with costs. 3 The Salient Facts [3] The 1st plaintiff is a private limited company incorporated in Malaysia and was involved in the business of design, construction and supply of vessels and crafts. [4] The 2nd plaintiff is a licensed financial institution incorporated in Malaysia with its registered address at 14th Floor, Menara Maybank, 100 Jalan Tun Perak, 50050 Kuala Lumpur. [5] The defendant is a company incorporated in the British Virgin Islands with an address for service at No. 33, Jalan Bola Jaring, Section 13, Shah Alam, Malaysia. [6] The 1st plaintiff had obtained various credit facilities from the 2nd plaintiff totalling RM884,330,000.00 to finance, inter alia, the construction of vessels. [7] As security for the said credit facilities, the 1st plaintiff created, inter alia, charges over all its assets in favour of the 2nd plaintiff under two (2) debentures dated 24.1.2008 and 11.6.2010 and four (4) debentures dated 26.6.2012 (the “Debentures”). [8] The 1st plaintiff has entered into shipbuilding contracts dated 26.10.2009 with the defendant, whereby the 1st plaintiff has agreed to construct and deliver to the defendant, and the defendant had agreed to purchase, four units of vessels Hull No. 1116, 1121, 1122 and 1182 (the “Vessels”). The salient terms of the shipbuilding contracts are as follows: 4

the purchase price for Vessel Hull No. 1116, 1121, 1122 and 1182 were RM10,000,000.00 each (“purchase price”);

(ii) upon the payment of the purchase price by the defendant, the 1st plaintiff holds and will hold the Vessels on trust for the defendant;

(iii) the 1st plaintiff undertook to complete the construction of the Vessels and deliver the same to the defendant by 28.2.2010 with a grace period of 30 days; and

(iv) the defendant has granted the 1st plaintiff an option to purchase all the Vessels from the defendant within a period of 6 months from the date of the Agreements for the sum of RM50,000,000.00. [9] The defendant states that the purchase price for the Vessels have been paid by the defendant. Consequently, trust deeds dated 26.10.2009 in respect of the Vessels were executed between the 1st plaintiff and the defendant, wherein the 1st plaintiff declared, inter alia that:

the purchase price for the Vessels have been fully paid by the defendant;

(ii) the 1st plaintiff was in possession and will be in possession of the Vessels and all equipment, fixture and other property which have been affixed and may be installed or affixed to the Vessels upon trust for the defendant. 5 [10] In respect of Vessels Hull No. 1121 and 1122, the 1st plaintiff and the defendant has entered into a supplemental agreement dated 22.10.2010, which include the following terms:

the purchase price for the re-purchase of Vessel Hull No. 1121 and 1122 by the 1st plaintiff is RM25,000,000.00;

(ii) the defendant agreed to purchase from the 1st plaintiff three

vessels Hull No. 1155, 1175 and 1187 at the purchase price of RM25,000,000.00. [11] The terms of the agreement for the purchase of Vessel Hull No. 1155, 1175 and 1187 (“Batch 2 Vessels”) includes:

the purchase price for Vessel Hull No. 1115, 1175 and 1187 were RM25,000,000.00 each (“Batch 2 purchase price”);

(ii) upon the payment of the Batch 2 purchase price by the defendant, the 1st plaintiff holds and will hold the Batch 2 Vessels on trust for the defendant;

(iii) the 1st plaintiff undertook to complete construction of the Batch 2 Vessels and deliver the same to the defendant by 28.3.2010 with a grace period of 30 days; and

(iv) the defendant has granted the 1st plaintiff an option to purchase the Batch 2 Vessels from the defendant any time before the Batch 2 Vessels delivery date within a period of 6 6 months from the date of the Agreements for the sum of RM25,000,000.00. [12] The trust deed for the Batch 2 Vessels, inter alia, provides that:

the purchase price for the Batch 2 Vessels has been fully paid by the defendant;

(ii) the 1st plaintiff was in possession and will be in possession of the Batch 2 Vessels and all equipment, fixture and other property which have been affixed and may be installed or affixed to the Vessels upon trust for the defendant. [13] On 9.2.2011, a Consent Judgment (“Consent Judgment dated 9.2.2011”) was entered between the 1st plaintiff and the defendant in Kuala Lumpur High Court Civil Suit No. S – 22NCVC – 62 – 2011 on the following terms:

that the 1st plaintiff shall pay the defendant the sum of RM50,000,000.00 as a settlement sum in the following manner:-

the sum of RM9,000,000.00 on or before 20.2.2011;

the sum of RM10,000,000.00 on or before 20.3.2011;

the sum of RM8,000,000.00 on or before 30.4.2011;

the sum of RM10,000,000.00 on or before 30.5.2011; and

the sum of RM13,000,000.00 on or before 30.6.2011. 7

(ii) should the 1st plaintiff fail, refuse and/or neglect to pay the Settlement Sum according to paragraph (i) above, any outstanding sum shall become immediately due and payable; and

(iii) that the 1st plaintiff and/or their agents and nominees are restrained in any way from dealing with the five (5) Vessels bearing Hull Nos. 1116, 1115, 1175 and 1187 respectively in any way until the Settlement Sum has been paid in full by the 1st plaintiff to the defendant. [14] On 14.3.2013, a Winding-up Petition was presented by one Nordic International Ltd against the 1st plaintiff under Kuala Lumpur High Court – Companies (Winding-Up) Petition No. 28NCC-221-03/2013 (the “Winding – Up Petition”) and was served on the 1st plaintiff on 18.3.2013. [15] By a letter dated 20.3.2013 issued by the 2nd plaintiff’s solicitors, and served on the 1st plaintiff on 20.3.2013, the floating charges created under the Debentures over the assets and rights of the 1st plaintiff were crystallized into fixed charges in favour of the 2nd plaintiff under the terms of the Debentures. [16] On 3.4.2013, as a result of default in payments under the credit facilities by the 1st plaintiff, the 2nd plaintiff had, in the exercise of its rights and powers under the Debentures, appointed Mr. Duar Tuan Kiat as the Receiver and Manager (“R & M”) over the 1st plaintiff. 8 [17] On 14.5.2013, the 1st plaintiff was wound up and Mr. Lim Tian Huat was appointed as the liquidator of the 1st plaintiff. [18] As part of the functions and responsibilities of the R & M of the 1st plaintiff, the R&M had taken steps to realise the assets of the 1st plaintiff charged to the 2nd plaintiff, including the vessels owned by the 1st plaintiff. [19] On 5.8.2014, the R&M filed an application in Kuala Lumpur High Court Civil Suit No. S – 22NCVC – 62 – 2011 to set aside the Consent Judgment dated 9.2.2011 but the same was dismissed on the basis that the Court had opined that a fresh action ought to be filed in order to set aside the Consent Judgment dated 9.2.2011. [20] Hence, the plaintiffs filed this writ in order to set aside the Consent Judgment dated 9.2.2011. The Findings of the Court [21] The core issue is this case is the setting aside of the Consent Judgment dated 9.2.2011 and/or alternatively that the Consent Judgment dated 9.2.2011 be varied. A consent judgment, being a contractual agreement having the force of law was considered by the Federal Court decision in Tan Geok Lan v. La Kuan [2004] 2 CLJ 301 where the Court held as follows: "a consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there 9 is superadded the command of the court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order. A consent order must be given its full contractual effect, even if it relates to an interlocutory step in the action (see para. 390 @ p. 286, Halbury's Laws of England, 4th edn vol. 37). We gather from this proposition that (i) the agreement on the terms reached between the parties at the interlocutory stage of an action is a contract between the parties and

(ii) the consent judgment or order arising out of that contract is also a contract between the parties except that the latter is superadded with the command of the court. In short, there are two contracts, one, before the court makes the order and two, after the order is made. After the order is made the first contract merges into the second contract. That being the case, short of the order being made, the first contract will have to be separately considered on its binding effect based on incidents of a contract". [22] On the issue of setting aside a consent judgment, the Federal Court in Tong Lee Hwa & Anor v. Chin Ah Kwi Tong Fah [1971] 2 MLJ 75 held that: "After a judgment by consent has been passed and entered, it cannot afterwards be varied on the ground of mistake, except for reasons sufficient to set aside an agreement. The general rule is that after a judgment has 10 been passed and entered, even where it has been taken by consent and under a mistake the court cannot set it aside otherwise than in a fresh action brought for the purpose unless (a) there has been a clerical slip or omission, or (b) the judgment as drawn up does not correctly state what the court actually decided and intended to decide, in either of which cases the application may be made by motion in the action. The same rule must apply, a fortiori, where the parties have entered into an agreement in pursuance of the terms of settlement embodied in the consent order." (emphasis added) [23] The same position was taken by another decision of the Federal Court in Badiaddin Mohamad Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLRA 183, where Peh Swee Chin, FCJ said as follows: “the grounds referred to for setting aside a consent order of a judgement by consent are grounds which basically relate to consensus ad idem or the free consent of parties to a binding agreement or contract. It is elementary that if it is proved that there are grounds which vitiate such free consent, the agreement is not binding. Now a consent order or a judgement by consent is undoubtedly based on an agreement of both parties where consent to the agreement must or should have been free in the first place. If the agreement upon which a consent order or judgement by consent is based, is vitiated by any 11 ground recognized in equity as vitiating such free consent, such as fraud, mistake, total failure of consideration, (see Huddesfield Banking Co. v. Henry Lister [1895] 2 Ch. 273 and the cases cited therein), then such a perfected consent order or judgement by consent could be set aside in a fresh action filed for the purpose. Grounds which would vitiate such free consent should also include misrepresentation, coercion, and undue influence and other grounds in equity.” (emphasis added) [24] Therefore, premised on the case of Badiaddin (supra), the grounds to set aside a consent judgment will include “fraud, mistake, total failure of consideration, misrepresentation, coercion, undue influence and other grounds in equity.” [25] In the plaintiffs’ ‘Submission in Reply’, the plaintiffs took the position that the Consent Judgment dated 9.2.2011 is irregular because:-

the 1st plaintiff and its directors knew that they had no authority to enter in the same and/or were prohibited from doing so;

(ii) the 1st plaintiff and/or its purported agreement in entering into the Consent Judgment dated 9.2.2011 is worthless and is vitiated by fraud, misrepresentation, total failure of consideration and/or is illegal as an agreement in breach of section 24 of the Contracts Act 1950; 12

(iii) the 2nd plaintiff as the chargee of the Vessels, whose rights and interests over the Vessels are adversely affected by the Consent Judgment dated 9.2.2011 was not heard to protect its rights and interests before the Consent Judgment dated 9.2.2011 was entered; and

(iv) that the defendant was fixed with notice, actual/constructive, of the Debentures and the prohibition on the 1st plaintiff in dealing with the Vessels. [26] The first issue here is whether the Consent Judgment dated 9.2.2011 is vitiated by fraud or misrepresentation as asserted by the plaintiffs. However, there are no particulars of fraud or misrepresentation in the plaintiffs’ amended Statement of Claim. [27] The issue was fraud was considered by Justice Varghese George in Goh Hock Hai v. EON Bank Bhd [2012] 4 CLJ 956, where the court held as follows:- "I could not agree with counsel for the plaintiff that just because he was now crying 'fraud' or 'forgery', the plaintiff was entitled to a full trial to impeach the judgment duly entered in the 2001 suit in favour of the defendant…. …… "However, to carry that 'right'" ie, the right to set aside a judgment obtained by fraud "to its conclusion there had to (sic ) some prima facie evidence to form the foundation of the allegation of 'deliberate fraud' or 'deception' practiced (sic ) on the court or of the withholding of some material 13 from which an inference of 'concealment or 'suppression' be ground drawn from…. ….. There was no basis for an impeachment of the judgment of 26 August 2010 in the 2001 suit either, as there was no prima facie material produced to show that the sought to be impugned judgment was obtained as a result of a deliberate fraud perpetrated on the court in the 2001 suit or by reason of a deception on the court or by suppression of any material evidence by the defendant." (emphasis added) [28] In the present case, I am of the considered opinion that there is no evidence to show that the Consent Judgment dated 9.2.2011 was obtained as a result of a deliberate fraud perpetrated on the court or by reason of a deception on the court or by suppression of any material evidence by the defendant. Indeed, PW2 has also testified that there was no fraud or collusion on the part of the defendant:- “KSV: You can’t be sure but you have no evidence to show that there was any fraud or collusion, do you, Ms. Leong? LEONG: No, sorry, no to fraud but collusion I am not sure” [29] It must also be emphasized that the 1st plaintiff was represented by a firm of solicitors, Messrs. Edlin Ghazaly & Associate in the said suit which culminates in the Consent Judgment dated 9.2.2011. DW1 has given evidence on the process of entering the consent judgment and the plaintiffs did not call the 1st plaintiff’s 14 solicitor nor a representative of the 1st plaintiff. Therefore, I agree with the defendant that the parties have agreed to the terms of the Consent Judgment dated 9.2.2011 and realized the implications of the same. [30] On the issue of total failure of consideration, it is not in dispute that payment was not made to the 2nd plaintiff. However, it is the defendant’s case that they have made payment to Dato’ Zul’s account as instructed by the 1st plaintiff’s Directors and this is supported by the Directors’ Resolution. This is further confirmed by the trust deeds which the 1st plaintiff had executed with the defendant. [31] Having considered the evidence, I accept the evidence of DW2 with regards to the issue of payment. The plaintiffs did not call any witness, namely the directors of the 1st plaintiff, to rebut the defendant’s assertions. It is not as if the directors were not available as PW2 had given evidence that they have met the directors of the 1st plaintiff on numerous occasions. Surely they should have ascertained whether the payments have been made to the directors. The attitude of the plaintiffs can be seen from the evidence of PW2: “KSV: Ok. Now, Question 19, the question that was put to you by your counsel was did the Directors and/or officers of NGV inform you of any dealings, between NGV and NSPL? ...My question to you Ms Leong is did you ask them? ...you can say that I was not told about any dealings with NSPL, did you ask them whether NGV 15 had entered into any dealings with Network South Pacific Limited? LEONG: No. KSV: So …. let me put it this way, after you had knowledge of the consent judgment and documents were forwarded to the R&M, did you ask the Directors and officers of NGV? LEONG: No.” [32] Premised on the reasons enumerated above, I am of the considered opinion that the plaintiffs have failed to establish “fraud, mistake, total failure of consideration, misrepresentation, coercion, undue influence and other grounds in equity” in order to set aside the Consent Judgment dated 9.2.2011. [33] However, the plaintiffs also take the position that the Consent Judgment should be set aside premised on the issue of illegality. In the case of Badiaddin (supra) Justice Azmi, FCJ held as follows:- “It is of course settled law as laid down by the Federal Court in Hock Hua Bank case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But one special exception to this rule (which was not in issue and therefore not discussed in Hock Hua Bank ) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction so as to bring the aggrieved party within the 16 principle laid down by a number of authorities culminating in the Privy Council case of Isaacs v. Robertson[1985] AC 97 where Lord Diplock while rejecting the legal aspect of voidness and voidability in the orders made by a court of unlimited jurisdiction, upheld the existence of a category of orders of the court "... which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court, without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity, and give to the judge a discretion as to the order he will make. ….. For my part, I must hasten to add that apart from breach of rules of natural justice, in any attempt to widen the door of the inherent and discretionary jurisdiction of the Superior Courts to set aside an order of court ex debito justitiae to a category of cases involving orders which contravened "any written law", the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction. It should not for instance be applied to a defect in a final order which has contravened a procedural requirement of any written law. The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases the 17 normal appeal procedure should be adopted to set aside a defective order, unless the aggrieved party could bring himself within the special exception.” (emphasis added) [34] In Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLRA 175, the Federal Court held as follows:- “[31] It is settled law that the High Court cannot set aside a final judgment/order regularly obtained from another High Court unless the judgment was made in defiance of a substantive statutory prohibition which renders it null and void on the grounds of illegality or lack of jurisdiction. Only in that exceptional case can a defective judgment be struck out ex debitiojusticiae. It is only in this situation that a High Court may exercise its inherent jurisdiction to strike out a regularly obtained judgment of another court of concurrent jurisdiction (see Badiaddin’s case) …. [35] We are thus in agreement with the appellant’s stand that an earlier judgment can only be impeached when it is prohibited by statute; and that Badiaddin to us merely reaffirmed that rule and does not extend the inherent jurisdiction of the court to correct a perfected order or judgment beyond any statutory prohibition... 18 [36] As regards the appellant's submission on the court being functus officio and that a fresh suit needs to be filed to strike out a previous regularly obtained order on the ground of fraud, we adopt the finding of this court in Hock Hua Bank Bhd v. Sahari bin Murid [1982] CLJ 125; [1981] 1 MLJ 143 which we think has settled these issues. The head notes from the report in that case, which need no further explanation, or expansion, is now reproduced as our answer to those related questions: In this case the learned judge had made an order for sale in a foreclosure proceeding. The order was made after hearing all the parties and was made despite a claim of non est factum and allegations of fraud and forgery by the respondent. The order was drawn up and perfected. There was no appeal against it. The respondent applied to set aside the judgment and this application was refused. Subsequently the respondent applied again to set aside the previous orders. The learned judge thereupon set aside his order. The appellant appealed. Held:

the learned judge was functus officio;

the court had no power under any application in the same action to alter, vary or set aside a judgment regularly obtained after it had been 19 entered or an order after it has been drawn up, except under the slip rule, so far as is necessary to correct errors in expressing the intention of the court, unless it is a judgment by default or made in the absence of a party at a trial or hearing;

if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment;

in this case the learned judge had no jurisdiction to set aside his own order and the original order must be restored, leaving it to the respondent to take out a fresh action to set aside the order on the ground fraud. [37] Although both the courts below had referred to the cases of Ling Kuok Teck & Anor v. Tseng Choon Chin @ Tay Bak Hui & 5 Ors [1995] 3 CLJ 889; MLJU 329 and the Hock Hua Bank Bhd, which cases involved applications to impeach perfected judgments previously obtained on the grounds of fraud or non-disclosure of material documents, both the courts unfortunately missed to observe that in both 20 cases fresh actions were filed to trash out the issue of fraud. In fact, Chang Min Tat FJ speaking for the Federal Court in the latter case, clearly stated that a 'fresh action will lie to impeach the original judgment', and that the court had 'no power under any application in the same action to alter, vary or set aside a judgment regularly obtained.” (Emphasis added.) [35] It is the submission of the plaintiffs that the Vessels were properly charged to the 2nd plaintiff, and that under the Debentures, whether fixed or floating charges, the 1st plaintiff cannot dispose the charged property without the consent from the 2nd plaintiff. Since the 1st plaintiff has entered into the sale agreements with the defendant after the crystallization of the floating charges, then without the consent of the 2nd plaintiff, the sale agreements with the defendant are invalid as the directors of the 1st plaintiff were not authorised to deal with Vessels, and that any attempt by the directors to do so amounts to fraud or mistake. As such, the plaintiffs submit that there is a serious issue of illegality in this case. [36] In Suit S-22NCVC-62-2011, where the Consent Judgment dated 9.2.2011 was entered, the defendant’s claim against the 1st plaintiff was for the sum of RM50,000,000.00, premised on the agreement whereby the defendant has paid for the Vessels, which are yet to be built. After the defendant paid for the Vessels, the 1st plaintiff is to hold the Vessels on trust for the defendant until the completion of the construction. The 1st plaintiff was also 21 granted the option to purchase the Vessels for RM50,000,000.00. Subsequent agreements were executed by the 1st plaintiff and the defendant whereby 1st plaintiff agreed to buy back the Vessels for the full price of the option amounting to RM50,000,000.00. When the 1st plaintiff failed to pay the RM50,000,000.00, the defendant sued the 1st plaintiff for the sum of RM50,000,000.00. The parties then enter into the Consent Judgment on 9.2.2011. [37] In the present case, the plaintiffs have tried to establish that the agreements between the 1st plaintiff and the defendant are null and void due to the lack of consent by the 2nd plaintiff under the debentures. However, I am of the considered opinion that these are based on the construction of the documents and not “a defiance of a substantive statutory prohibition which renders it null and void on the grounds of illegality or lack of jurisdiction.” [38] Added to that, there is no evidence that the defendant was privy to the alleged fraud committed by the directors of the 1stplaintiff, namely to sell the vessels without the consent of the 2nd plaintiff. In any event, if the directors of the 1st plaintiff have committed fraud on the 1st plaintiff, then the plaintiffs can pursue a claim against the said directors. [39] The plaintiffs have also submitted that there is illegality because the 2nd plaintiff was not given an opportunity before the Consent Judgment dated 9.2.2011 was entered and to its prejudice. With regards to this, the issue before the court in Suit S-22NCVC-62- 2011 was the agreement between the 1st plaintiff and the defendant. Added to that, at the time the consent judgment was 22 entered, the 2nd plaintiff has not invoked its rights under the Debentures. [40] The last issue is on the restraining order in the Consent Judgment dated 9.2.2011, that is, ‘the 1st plaintiff and/or their agents and nominees are restrained in any way from dealing with the five (5) Vessels bearing Hull Nos. 1116, 1115, 1175 and 1187 respectively in any way until the Settlement Sum has been paid in full by the 1st plaintiff to the defendant.’ [41] The plaintiffs take the position that the above restraining order would effectively amount to a perpetual injunction against the R&M. This is because by reason of the 1st plaintiff’s being wound up, the 1st plaintiff would no longer be able to settle the judgment sum under the Consent Order dated 9.2.2011. Pursuant to section 51(2) of the Specific Relief Act 1950, a perpetual injunction can only be granted after hearing the merits of the case, and not as in this case, under a consent judgment. [42] However, I am of the considered opinion and I agree with the defendant that the above restraining order is merely to restrain the 1st plaintiff from dealing with the Vessels until the judgment sum is fully settled. It is not a perpetual injunction and was granted before the 1st plaintiff was wound up. [43] In view of my findings with regards to the setting aside of the Consent Judgment dated 9.2.2011, I will not deal with the other prayers and issues raised between the parties. 23 Conclusion [44] Based on the reasons enumerated above, I am of the considered opinion that this case does not fall within the ambit of Badiaddin (supra) and Serac Asia Sdn Bhd (supra) to enable this court to invoke its inherent jurisdiction and set aside the Consent Judgment dated 9.2.2011. The plaintiffs’ case is therefore dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 16 April 2018 For the Plaintiffs : KK Chan / Winnou Chung Messrs Shook Lin & Bok Kuala Lumpur. For the Defendant : K Selva Kumaran / G Shanker Messrs Rose Hussin Kuala Lumpur. Cases referred:

Tan Geok Lan v. La Kuan [2004] 2 CLJ 301.

Tong Lee Hwa & Anor v. Chin Ah Kwi Tong Fah [1971] 2 MLJ 75.

Badiaddin Mohamad Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLRA 183. 24

Goh Hock Hai v. EON Bank Bhd [2012] 4 CLJ 956.

Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd [2013]