1. ) Pestech Technology Sdn Bhd v Syarikat Pembenaan Yeoh Tiong Lay Sdn Bhd (WA-22C-84-12/2024)

PESTECH TECHNOLOGY SDN BHD [COMPANY NO: 201301045990 [1075814-X]

PESTECH INTERNATIONAL BHD [COMPANY NO: 201101019901 [948035-U] …PLAINTIFFS AND SYARIKAT PEMBENAAN YEOH TIONG LAY SDN BHD [Company No.: 197201000862 [12479-V] …DEFENDANT GROUNDS OF JUDGMENT (Enclosure 42) [1] In the matter before me, the Plaintiffs herein being Pestech Sdn Bhd (“P1”) and Pestech International Bhd (“P2”) (“Plaintiffs”) have applied to this Court via Enclosure 42 (Enclosure 42) for an Erinford injunction to restrain the Defendant, either personally and/or through its agents and/or S/N b3yQuN1aEucvr90GrahTA servants, be restrained from initiating, continuing, maintaining, or taking any further action in the arbitration proceedings initiated through the Notice of Commencement of Arbitration Proceedings dated 18.10.2023 until final and complete disposal of the Plaintiff’s Appeal on the dismissal of Enclosure 3. Brief Background Facts [2] On 07.12.2024, the Plaintiffs’ filed an application for an “Anti-Arbitration Injunction” (“AAI”) in Enclosure 3 primarily to injunct any further steps from being taken in the arbitration proceedings that had been commenced by the Defendant against the First Plaintiff pending full disposal of the Plaintiffs’ Writ in Enclosure

[3] On 11.04.2025, this Court dismissed the Plaintiffs’ Application for an AAI in Enclosure

[4] On 06.05.2025, the Plaintiffs’ filed a Notice of Appeal to the Court of Appeal following the dismissal of Enclosure 3. Subsequently, an application for an Erinford Injunction was filed by the Plaintiffs’ in Enclosure 42. Court’s Findings [5] The Plaintiffs have submitted in support of Enclosure 42 that they have demonstrated that there is a likelihood of a successful appeal being rendered nugatory as they have lodged an appeal vide Appeal No. W-02(IM)(C)-807-05/2025 (Appeal 807) against S/N b3yQuN1aEucvr90GrahTA the dismissal of enclosure 3 i.e the Plaintiffs application for an injunction restraining the Defendants from inter alia continuing or taking any further action in the arbitration proceedings initiated through the Notice of Commencement of Arbitration dated 18.10.2023 until final disposal of this Civil Suit before this Court (Enclosure 3), which has yet to be disposed by the Court of Appeal. [6] It is further submitted by the Plaintiffs that:

6.1 if Enclosure 42 is dismissed, the Defendant will proceed to pursue the pending arbitration proceedings against P1 which will eventually render Appeal 807 nugatory;

6.2 the Appeal 807 is a statutory right and should be protected; and 6.3 damages is not an adequate remedy. [7] On the other hand the Defendant has submitted that Enclosure 42 is a blatant abuse to collaterally undermine the otherwise consensually submitted to and recognised 2023 Agreed Consolidated Arbitrations i.e the Defendant’s Notice of Arbitration dated 11.9.2023 against P1 (PTSB Arbitration) seeking inter alia a declaration that the Notice of Termination for default was valid and where P1 had filed its response to the Notice of Arbitration and secondly the Defendant’s Notice of Arbitration dated 18.10.2023 against P2 (PIB Arbitration) seeking relief on amongst others a declaration that P2 has breached and/or defaulted under the Parent Guarantee and where P2 has also had filed its S/N b3yQuN1aEucvr90GrahTA response to the Notice of Arbitration. Both the said PTSB Arbitration and PIB Arbitration were then consensually consolidated with approval of AIAC on 6.12.2023 (2023 Agreed Consolidated Arbitrations). [8] Based on the chronology of events in the matter herein before this Court, this Court had on 11.4.2025 dismissed Enclosure 3 for amongst others the grounds that this Court ‘would not permit the proceedings to stifle the 2023 Agreed Consolidated Arbitrations’ and that the same was an abuse of court process. [9] I also observed that on 7.5.2025 the Plaintiffs then proceeded to file this Erinford injunction under Enclosure 42 but had also proceeded on 8.5.2025 to have participated in the case management before the Arbitral Tribunal in the 2023 Agreed Consolidated Arbitrations and that the Plaintiffs did not file an Affidavit In Reply to the present Enclosure 42. [10] The law to grant injunctions is as specified under section 50 of the Specific Relief Act 1950 (“SRA”) which provides: “Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.” [11] The above section is however subject to inter alia section 54(j) of the SRA which states that: “An injunction cannot be granted: S/N b3yQuN1aEucvr90GrahTA

when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court” [12] Following from section 54(j) of the SRA, it is with respect my view that the Plaintiffs failure to file an Affidavit In Reply to the present Enclosure 42 appears to have been done so as to avoid disclosure to this High Court of events subsequently arising. Thus in the circumstances, I hold that the Plaintiffs said conduct would disentitle them to the injunction they have sought under Enclosure

I am further fortified in my findings herein as I find that the Plaintiffs have further abused the ongoing process before this Court by attempting to scuttle the 2023 Agreed Consolidated Arbitrations by delaying the same and making such applications before me. [13] I also rely on Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd [2002] 5 MLJ 662; [2002] 2 AMR 2364; [2002] 3 CLJ 165 where Ramly Ali J (as he then was) had held: “…. the relevant principles expounded by Megarry J (in the Erinford Case) (as far as the present application is concerned) could be summarized as follows:

that a decision that no injunction should be granted pending the trial is not inconsistent with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction; S/N b3yQuN1aEucvr90GrahTA

that by refusing an injunction pending the trial, the judge does not become functus officio quoad granting any injunction at all;

that the balance of convenience (ie the comparative effects of granting or refusing an injunction pending an appeal) are such that it would be right to preserve the status quo pending the appeal;

that it would be wrong to grant an injunction pending appeal in cases where the appeal would be frivolous, or to grant the injunction would inflict greater hardship than it would avoid;

(5)that when a party is appealing, exercising his undoubted right of appeal, the court ought to see that the appeal, if successful, is not nugatory; and

(6)that an injunction pending appeal is not applicable in cases where damages seem to be a suitable and adequate remedy;

(7)that to grant or not to grant the injunction is a matter of the court's discretion which must be exercised based on the facts of each particular case. It is not a matter of right. [14] In Kilang Kosfarm Sdn Bhd (supra) the High Court therein had declined the Erinford injunction amongst others on grounds that there were ‘no change of circumstances’ and ‘no new material evidence’. I too following the aforesaid case and based on the materials placed before this Court, hold that there are no change of circumstances and no new material evidence placed before this Court under Enclosure 42 and since the events referred to in S/N b3yQuN1aEucvr90GrahTA Enclosure 3, for me to exercise my discretion to grant the said Erinford injunction under Enclosure 42. [15] As to the Plaintiffs contention that the sum of RM282,416,801.67 being claimed in the arbitration proceedings gives inter alia a significant and negative effect to its Board of directors and others and that if P1 is put through liquidation, no amount of damages will be able to reverse the effects of liquidation; this in this Courts decision is pure speculation and of no substance as nothing has been decided in the Arbitration proceedings as yet and no evidence have been met out before me to show the same may occur. [16] I, therefore, find that the Plaintiffs have failed to proof and meet the necessary grounds required for an Erinford Injunction and accordingly I exercise the balance of convenience in favour of the Defendants in dismissing Enclosure 42 with costs of RM25,000.00. [17] I am also directing pursuant to Order 92 rule 4 of the Rules of Court 2012 that the Plaintiffs apply to the Court of Appeal within the next 10 working days for the Appeals to be heard on an urgent basis. Dated: 18th day of June 2025 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 S/N b3yQuN1aEucvr90GrahTA COUNSEL FOR THE PLAINTIFF: Arun Ganesh Boopalan and Marcus Chong Chao Shern (Messrs Kamil Hashim Raj & Lim (Petaling Jaya)] COUNSEL FOR THE DEFENDANT: Logan Sobapathy, Felix Dorairaj, Samuel Chong and Vivian Oh (Messrs Dorairaj Low & Teh) S/N b3yQuN1aEucvr90GrahTA