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1 IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24NCC-526-09/2023
WA-24NCC-526-09/2023
High Court of Malaysia6 Oct 2025
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“(11) interest on the judgment sum and all other sums ordered payable by the defendants under section 11 of the Civil Law Act 1956 at the rate of 5% per annum from the date of this Originating Summons until full and final settlement or at such rate and for such period as this Honourable Court deems fit;”
“pplications [Enclosures 1, 16 and 34] are-i. Whether the OS [Enclosure 1] should be allowed or dismissed; Whether the plaintiffs have locus standi to seek the remedies sought under section 351 of the Companies Act 2016 [“CA 2016”] and whether there are disputes of facts which require the OS to dismissed with liberty to”
“hat the Defendant had caused grave prejudice or that it had caused an injustice to the defendant. Support for this proposition can be found in the case of Booker Mc Connell Plc & Anor v Plascow & Ors [1985] RPC 425 whereby the court succinctly ruled thus: “The retrospective discharge of fully executed Anton Piller Orde”
“of the inter partes. However, the Court has jurisdiction to hear an application to set aside the ex-parte APO, even after it has been executed. [See N-Visio Sdn Bhd v Horizon Multimedia Sdn Bhd & Ors [2009] MLJU 1249, HC].”
“5. My decision for the OS [Enclosure 1] which I dismissed with liberty to file as a writ has been reported as Poh Kee Lock & Anor v Ivan Goh-Lee En Tatt & Anor [2025] MLJU 2726 HC.”
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1 IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24NCC-526-09/2023
1
POH KEE LOCK …PLAINTIFFS (IC No.: 641030-04-5243)
2
FENG YU HOLDINGS SDN BHD (Company No.: 201801032030 (1294055-P))
1
IVAN GOH-LEE EN TATT …DEFENDANTS (IC No.: 720521-07-5573)
2
MOHD FAIZ BIN SAZALI (IC No.: 930314-07-5621)
para
[Enclosure 16 setting aside ex-parte anton piller order]
1
I heard three applications together. The applications [Enclosures 1, 16 and 34] are-i. Whether the OS [Enclosure 1] should be allowed or dismissed; Whether the plaintiffs have locus standi to seek the remedies sought under section 351 of the Companies Act 2016 [“CA 2016”] and whether there are disputes of facts which require the OS to dismissed with liberty to file a writ action; ii. Whether the defendants’ application [Enclosure 16] to set aside an ex-parte Anton Pillar order [“APO”] granted on 29- 09-2023 and executed on 06-10-2023 should be allowed; and iii. Whether the plaintiffs’ ex-parte application [converted to opposed ex parte] for leave to issue contempt against the defendants and one other person should be allowed [Enclosure 34].
2
The applications arose as the plaintiffs had filed the OS pursuant to section 351 of the CA 2016 against the defendants, inter alia, for: i. Declarations that the 1st defendant contravened sections 213, 218, 220 and/or 248 of the CA 2016; ii. Injunction be granted to restrain the defendants from dealing with and misusing assets and information belonging to a company called Parkspots Sdn Bhd [“Parkspots”]; iii. Injunction be granted to compel the 1st and 2nd defendants and/or their officers, agents, servants or employees to provide all financial information and documents with regard to Parkspots, and discovery of the same.
3
On the same day as the filing of the OS, the plaintiffs filed an ex-parte Anton Piller Application against the defendants [Enclosure 3]. On 29-09-2023, the High Court granted the Ex-Parte APO [Enclosure 11], which was subsequently executed on 06-10-2023.
4
On 10-11-2023, the plaintiffs further filed for leave to issue committal proceedings against the defendants and one Lee Hooi Min for alleged breach of the Ex-Parte APO. [Enclosure 34].
5
My decision for the OS [Enclosure 1] which I dismissed with liberty to file as a writ has been reported as Poh Kee Lock & Anor v Ivan Goh-Lee En Tatt & Anor [2025] MLJU 2726 HC.
6
On 06-10-2025, I had allowed the defendants’ application to set aside the ex-parte APO with costs of RM 40,000 subject to allocatur. Briefly, my reasons are that the plaintiffs had failed to satisfy the stringent pre-conditions for an ex-parte APO. An ex-parte APO is a draconian order. In this case the plaintiffs had used it not to prevent the defendants from destroying evidence against them - “Ivan and Faiz will destroy the evidence against them”- but to search for incriminating evidence against the defendants and against a third-party Datuk Choy Wai Seong [“Datuk Choy”].
7
On 21-10-2025 the plaintiffs have appealed to the Court of Appeal against my decision. These are my Grounds of Decision. Background Facts Parties
8
The 1st plaintiff is Poh Kee Lock [“Edward Poh”]. The 2nd plaintiff is Feng Yu Holdings Sdn Bhd [“Feng Yu”].
9
Edward Poh is the director and sole shareholder of Feng Yu.
10
The 1st defendant is Ivan Goh-Lee En Tatt [“Ivan Goh”]. The 2nd defendant is Mohd Faiz Bin Sazali [“Faiz”]. Datuk Choy and 1st plaintiff/Edward Poh set up Parkspots as a joint venture
11
The dispute here arose from the involvement of Datuk Choy and Edward Poh in Parkspots.
12
Parkspots was set up in 2018 as a joint venture by Datuk Choy together with Edward Poh. Both used nominees as shareholders. Edward Poh used Feng Yu the 2nd plaintiff as his nominee. Datuk Choy’s nominees are Liew Soon Hin and Mohd Nurazamuddin Bin Hamzah.
13
The 1st defendant Ivan Goh is also an indirect 10% shareholder in Parkspots through his nominee IG Management Resources Sdn Bhd (“IG Management”). Ivan Goh is the Chief Executive Officer of Parkspots.
14
The 2nd defendant Faiz is a Sales & Operations Executive of Parkspots. Directors of Parkspots
15
The directors of Parkspots are Edward Poh and four others. Datuk Choy is an alternate director. [See CCM search of Parkspots dated 28-07-2023 in Enclosure 2 plaintiffs’ supporting affidavit dated 22-09-2023 at pages 69 - 70]. Fight between Edward Poh and Datuk Choy
16
From the affidavits and the written submissions that are filed it is clear this is a fight between Edward Poh and Datuk Choy. The two defendants are but mere pawns caught in the cross fire. They are collateral damage to use a modern military parlance. As the Malay peribahasa says "Gajah sama gajah berjuang, pelanduk mati di tengah-tengah".
17
The historical background to the setting up of Parkspots as averred by Datuk Choy in his affidavit [Enclosure 38/170 PDF copyable at page 78] is as follows-
4
I am a property developer … I have no prior experience in the carpark operating industry.
5
I had come to know the 1st Plaintiff (“Edward Poh”) sometime on or around 1997 whilst he was the Managing Director of Secure Parking Corporation Sdn Bhd (“Secure Parking”). At that time, Secure Parking was providing carpark management services in properties owned by companies in which I had an interest.
6
Sometime on or around 2018, Edward Poh informed me of his resignation from Secure Parking, and his intention of forming another company to provide carpark management services. Edward Poh represented to me that …, he required the necessary capital and carpark sites to realise such a venture.
7
I had agreed to team up with Edward Poh with a view of establishing a carpark management company.
8
During follow-up discussions, Edward Poh informed me that he owned a company by the name of ParkAide Sdn Bhd (“ParkAide”) which had intellectual property rights to software which would be helpful in the provision of carpark operation and management services.
9
Edward Poh proposed a business model where we would acquire a carpark management company whilst contracting ParkAide to deliver the software and equipment necessary in the provision of carpark operation services.
10
Given Edward Poh’s background carpark operations industry and his representations, I gained confidence in participating in the proposed venture.
11
Sometime in 2018, Edward Poh introduced me to the 1st Defendant (“Ivan Goh”). I was made to understand that Ivan Goh previously held a senior management role in Secure Parking, and possessed the necessary expertise to manage carpark operations.
12
Edward Poh had offered Ivan Goh the position of CEO with a 10% shareholding of ParkSpots, to which he accepted. …
13
Sometime on or around the end of 2018, I acquired an interest ParkSpots through Liew Soon Hin and Mohd Nurazamuddin Bin Hamzah …
14
I was made to understand that Edward Poh’s interest in ParkSpots was through the 2nd Plaintiff (“Feng Yu”).
15
On 30-01-2019, a license agreement (“LA”) was executed between ParkSpots and ParkAide, whereby ParkAide granted ParkSpots a license to use its trademark and intellectual property rights for an agreed fee.
16
On the same day, a shareholder’s agreement (“SA”) was executed between all shareholders of ParkSpots and ParkSpots, wherein it was agreed, amongst others that: -
16
16.1 Mohd Nurazamuddin bin Hamzah, through me, would procure the necessary capital expenditure of the first five carpark sites for ParkSpots’ business venture;
16
16.2 The license fee payable to ParkAide for the use of its intellectual property rights shall be 10% of ParkSpots operating revenue; and
16
16.3 ParkSpots was to only use the software and related services offered by ParkAide in its business, unless such software and related services were not offered by ParkAide.
17
…
18
Edward Poh represented to me that ParkSpots was to only pay ParkAide a licensing fee for the software and related services which were developed, owned, and offered by ParkAide. As Edward Poh also had an interest in ParkSpots, I trusted his representations and did not believe that he would do anything to undermine ParkSpots’ interest.
19
I also noticed a discrepancy in both the LA and SA concerning the license fee payable by ParkSpots to ParkAide, whereby the SA provides for a payment of 10% of ParkSpots’ operating revenue (gross sales minus tax, rent or performance rent) whilst the LA provides for payment of 10% of ParkSpots’ gross sales.
20
Edward Poh once again assured me that the license fee payable to ParkAide would be 10% of ParkSpots’ operating revenue, as per the SA. Now shown to me and annexed hereto is a copy of Edward Poh’s email dated 16-11-2018, marked as Exhibit “CYC-1”.
21
Sometime on or around August 2019, Edward Poh informed me that ParkAide was to go through a restricting exercise to raise further capital, which necessitated a novation agreement being executed to transfer ParkAide’s rights and obligations under the LA to Snatch Park Bizsolutions Sdn Bhd (“Snatch”). Shareholders agreement and license agreement
18
On 30-01-2019, a Shareholders Agreement (“SHA”) was executed between all shareholders of Park Spots. [See Enclosure 18/170 Exhibit 3].
19
On 30-01-2019, a license agreement (“LA”) was executed between ParkSpots and ParkAide. [See Enclosure 18/170 Exhibit 2]. Disputes arose between Edward Poh and Datuk Choy Edward Poh’s version of the disputes
20
The plaintiffs contend they discovered several acts under Ivan Goh's management that contravened the CA 2016, which not only caused harm to ParkSpots but also to the plaintiffs’ interests as a director and shareholder. [See Enclosure 157 plaintiffs’ Written Submissions paragraphs 8 and 13 - 49]. ParkPlus Sdn Bhd
21
The plaintiffs further contend that in or around early 2023, they discovered that Ivan Goh and Faiz were involved in a company known as ParkPlus Sdn Bhd (“ParkPlus”). They contend ParkPlus is in a competing business against ParkSpots. [See Enclosure 157 plaintiffs’ Written Submissions paragraphs 14 - 20].
22
The plaintiffs further submit that Ivan Goh has also wrongfully induced ParkSpots to commit a breach of the SHA by not using ParkAide’s software and/or its services contrary to clause 3.3 of the SHA. Instead, Ivan Goh engaged another company, Sonicboom Solutions Sdn Bhd (“Sonicboom”), and installed their poles and system at ParkSpots’ parking sites. [See Enclosure 157 plaintiffs’ Written Submissions paragraphs 21 - 30].
23
The plaintiffs also submit that Ivan Goh has committed various breaches concerning ParkSpots’ financial statements and audited accounts. [See Enclosure 157 plaintiffs’ Written Submissions paragraphs 31 - 49].
24
In summary, the plaintiffs thus say the defendants contravened the CA 2016 by – i. Engaging in a competing business against ParkSpots; ii. Inducing breach of the SHA by ParkSpots; iii. Failing to permit inspection of ParkSpots’ financial statements; iv. Under-declaring ParkSpots’ income in the accounts; v. Failing to prepare, keep, and audit ParkSpots’ accounts; and vi. Failing to circulate and lodge ParkSpots’ financial statements. Dato Choy’s version of the disputes Allegation that Ivan Goh and Dato Choy set up ParkPlus to engage in a competing business against ParkSpots
25
Ivan Goh and Dato Choy both dispute Edward Poh’s version of the disputes that he was not aware of the setting up of ParkPlus. Both swore affidavits to refer to a settlement meeting of December 2022 attended by Ivan Goh, Dato Choy and Edward Poh.
26
Edward Poh in his reply affidavit dated 06-12-2023 [See Enclosure 48 paragraph 7e] denies there was a meeting. However, in an earlier reply affidavit dated 14-11-2023 [See Enclosure 37 paragraph 45(b)(i)], Edward Poh admitted there was a meeting on 17-12-2022. There is thus a changing of stance by Edward Poh as to whether there was a meeting in December 2022 or not.
27
The facts sworn by Ivan Goh and Dato Choy are as follows. Agreement reached in meeting in December 2022
28
Ivan Goh and Dato Choy contend due to discovery by Ivan Goh and Dato Choy of certain misconduct by Edward Poh, there was a meeting in December 2022 whereby an arrangement was reached between Edward Poh, Datuk Choy and Ivan Goh to go their separate ways and explore alternative opportunities in the carpark operations industry through different entities whilst in the interim carrying out the existing business of ParkSpots. Parkplus was thus set up by Datuk Choy and Ivan Goh.
29
The reason for the agreement reached in the meeting of December 2022, Dato Choy and Ivan Goh contend are [See Enclosure 164 defendants’ Reply Written Submissions] and I quote –
4
Whilst the Plaintiffs have alleged that the Defendants have breached Sections 213(1) and 218 of the CA, the Plaintiffs Affidavits No. 1 and No. 2 are completely silent of Edward Poh s own initial conduct of acting in competition with the business and interest of ParkSpots through Parkaide/Snatch.
5
It was only upon Edward Poh s misconduct becoming clear to Ivan Goh and David Choy, was the meeting held between parties on or around the end of 2022, where it was agreed that parties will explore alternative opportunities in the carpark operations industry through separate entities.
6
Through Edward Poh s interest in ParkSpots and by him being privy to its business development strategies, Edward Poh used his direct knowledge of ParkSpots intended and existing projects to submit similar tenders through ParkAide/Snatch by offering more competitive rates at the detriment of ParkSpots interest. [enclosure 18/170 Ivan Goh’s affidavit pg. 15, paras. 69 70/ 18]
7
Examples of such misconduct are: - a. Edward Poh through ParkAide/Snatch submitted a proposal to G-Village for the provision of carpark management services and equipment at a better rate than what was initially proposed by ParkSpots [pgs. 15 16, paras. 71 76/ 18]; b. Edward Poh would cause the margins of ParkSpots profits to be reduced. By causing ParkAide/Snatch to submit proposals to Kinta Riverfront Service Suits JMB with more competitive rates than that which was offered by ParkSpots, ParkSpots was compelled to submit a revised proposal thus obtaining lesser profits from the said project [pg. 17, paras. 78 81/18]; c. Edward Poh would suppress ParkSpots financial position by charging a higher rate for equipment rental than ParkAide/Snatch charged to third parties [pg. 18, para. 84/ 18]; d. Edward Poh caused ParkAide/Snatch to also submit a proposal to Permata Alasan Sdn Bhd, an intended customer of ParkSpots [pgs. 19, para. 87/ 18]
8
Curiously, upon being confronted by the 2nd Defendant of ParkAide/Snatch submitted its proposal to ParkSpots intended customers despite being aware of the same, Edward Poh’s only response was to merely suggest that he would have considered sub-contracting portions of the services to ParkSpots.
9
This, My Lord, points to the fact of Edward Poh having prioritised his personal interest through ParkAide/Snatch to the detriment of ParkSpots.
10
In response to the above, Edward Poh averred that: - a. He was rarely involved in the day-to-day management of ParkSpots; b. His knowledge of and access to the business development of ParkSpots is rather limited; and c. There was never any restriction for ParkAide/Snatch to have its own clientele. [pg. 49, para. 38/ 37]
11
Such contentions of Edward Poh allegedly not being privy to ParkSpots business development strategies can be easily dispelled, and are simply untrue.
12
Edward Poh was always privy to information relating to ParkSpots business development strategies, with such reports being furnished to Edward Poh by email. [pgs. 52 58/ 41]
13
Edward Poh’s insistence on having regular meetings with a view to having access to ParkSpots business plans even up till after the filing of these proceedings is also telling. [pgs. 60 64/ 41]
14
In pg. 13, para. 16(f) of the Plaintiffs Submissions, it was alleged that the Defendants diverted or attempted to divert certain of ParkSpots contract to ParkPlus.
15
15.Whilst Edward Poh contends that there was no restriction for ParkAide/Snatch to have its own clientele given that its nature of business is different from that of ParkSpots, the evidence tendered in the Defendants AIS [Encl. 18 20] is compelling as it clearly shows Edward Poh having submitted proposals to the exact same intended clients of ParkSpots.
16
My Lord, a perusal of pgs. 48 51, paras. 37 41 of the Plaintiffs Affidavit No. 5 [Encl. 37] shows that whilst Edward Poh had made certain attempts to explain his misconduct, what cannot be disputed is the fact of Edward Poh having engaged in competitive business and benefiting from his knowledge of ParkSpots business development plans.
17
Notwithstanding there being no contractual obligation by Edward Poh to not compete with ParkSpots, noteworthy is that Edward Poh’s conduct was calculated to enrich himself at the detriment of ParkSpots.
30
Datuk Choy avers in his affidavit dated 28-11-2023 [Enclosure 38/170 PDF copyable page 83] as follows-MEETING WITH EDWARD POH
30
Edward Poh’s conduct as described above was of great concern to me as it involved my investment into ParkSpots, which I believe Edward Poh was jeopardising.
31
As such, sometime on or around the end of December 2022, I met with Edward Poh and Ivan Goh at a café in Bukit Tunku where I confronted Edward Poh with the various issues that was plaguing ParkSpots as a result his conduct. I had also confronted him about ParkAide/Snatch bidding for sites in competition with ParkSpots, which was directly causing loss and damage to ParkSpots. Now shown to me and annexed hereto is a picture of the meeting invitation, marked as Exhibit “CWC-3”.
32
Edward Poh’s response was flippant and he was not able to give any proper explanation. I then informed him that the business development of ParkSpots will no longer be viable if he continues with such conduct. He merely responded by asking me to buy out his shares in ParkSpots.
33
I declined his offer and informed him that I will pursue my interest in the carpark industry with Ivan Goh through a different entity and explore alternative opportunities in the industry while in the interim period continuing with ParkSpots. Edward Poh did not express any disagreement to my suggestion.
34
It was in the spirit of this agreement, that I and ParkSpots decided against taking any action against Edward Poh for his conduct in prejudicing and jeopardising the business and financial viability of ParkSpots. Edward Poh was always aware of our arrangement to go our separate ways through different entities.
35
ParkPlus Sdn Bhd (“ParkPlus”) was later established for Ivan Goh and I to explore other opportunities within the carpark operations industry.
36
I verily believe that Edward Poh has become concerned at the potential success of ParkPlus and it competing with ParkAide/Snatch. I am left to rue the fact that my investment in ParkSpots has been greatly diminished by Edward Poh/ParkAide/Snatch’s conduct.
37
Compounding matters is ParkSpots’ inability to pay rent due to several sites belonging to companies in which I have interests. [Emphasis added]
31
Ivan Goh corroborated the testimony of Dato Choy. He avers in his affidavit dated 20-10-2023 [Enclosure 18/170 Affidavit in Support PDF copyable page 50] as follows-Edward Poh’s conduct of acting in competition with the business and interest of ParkSpots through ParkAide/Snatch
68
Sometime on or around early 2022 onwards, I became aware of Edward Poh acting in competition with ParkSpots through ParkAide/Snatch, by tendering for the same projects as ParkSpots.
69
As Edward Poh was always aware of the details of ParkSpots’ project tenders, he was able to submit similar tenders through ParkAide/Snatch by offering more competitive rate, thus at the detriment of ParkSpots’ business and interest.
70
… Now shown to me and annexed hereto is an email from ParkSpots’ to Edward Poh dated 11-09-2020 and the relevant attachments, collectively marked as Exhibit “15”. Now shown to me and annexed hereto are ParkSpots’ Board Meeting Agenda dated 21-01-2022 and ParkSpots’ Budget Presentation of 2022, collectively marked as Exhibit “16” G Village @ Desa Pandan (“G-Village”)
71
On 31-05-2021, ParkSpots’ proposal was submitted to G-Village for the provision of carpark services and equipment which included amongst others, … Now shown to me and annexed hereto is ParkSpots’ proposal to G-Village 31-05- 2021, marked as Exhibit “17”.
72
Discussions pertaining to the intended proposal was also held with Edward Poh’s representative in ParkAide/Snatch, Sky Chin. Now shown to me and annexed hereto are the email correspondence between ParkSpots and Sky Chin dated October 2021, marked as Exhibit “18”.
73
Sometime on or about October 2021, Edward Poh approached me with an offer to sub-contract certain services to ParkSpots for a project that ParkAide/Snatch had secured. Upon receipt of ParkAide/Snatch’s service agreement letter of award, I realised they concerned G-Village. Now shown to me and annexed hereto is ParkAide/Snatch’s Letter of Award dated 21-10-2021, marked as Exhibit “19”.
74
At that time, Edward Poh also falsely represented to me that he had managed to persuade G-Village to outsource some parts of the carpark operation services consisting of human resource and support services, whilst purchasing the necessary carpark software and equipment directly from ParkAide/Snatch.
75
I had initially trusted Edward Poh’s representations. ParkSpots accepted ParkAide/Snatch’s offer for the provision of human resource and support services to G-Village.
76
However, I was later informed by Sky Chin that Edward Poh had through ParkAide/Snatch submitted a proposal to G-Village for the provision of carpark management services and equipment at a better rate than what was proposed by ParkSpots. I was able to retrieve a redacted copy of the ParkAide/Snatch’s proposal from a party who has requested remain anonymous for fear of repercussion. Now shown to me and annexed hereto is a redacted copy of ParkAide/Snatch’s proposal to G-Village, marked as Exhibit “20”. Kinta Riverfront Service Suits JMB (“KRJMB”)
77
On 1-02-2022, ParkSpots submitted a proposal to KRJMB for the provision of carpark services and equipment. …
78
On 16-03-2022, a meeting was held between KRJMB, Faiz and myself where I was informed that they had received another proposal with similar rates to that of ParkSpots’. ParkSpots was requested to offer more competitive rates should we be interested in securing the project.
79
I was then informed by KRJMB that the other proposal was in fact submitted by ParkAide/Snatch. …
80
As a result, ParkSpots was compelled to submit a revised proposal to Kinta Riverfront on 21-03-2022 by agreeing to pay KRJMB an additional sum as contribution cost for labour services. …
81
I verily believe that Edward Poh’s conduct through ParkAide/Snatch had resulted in ParkSpots obtaining lesser profits from its project with Kinta Riverfront.
82
…
83
I had very recently requested and received the KRJMB ParkAide/Snatch proposal dated 2-03-2022. I had discovered that Edward Poh had through ParkAide/Snatch quoted a lesser amount for equipment cost to KRJMB than they had to ParkSpots.
84
It would appear that Edward Poh would cause the margins of ParkSpots to be reduced by competing with ParkSpots … Now shown to me and annexed hereto is ParkAide/Snatch’s quotation dated 27- 10-2022 marked as Exhibit “23”. Now shown to me and annexed hereto is ParkAide/Snatch’s proposal to Kinta Riverfront dated 2-03-2022 marked as Exhibit “24”.
85
I am advised by Faiz and verily believe that sometime on or around June or July 2022, Faiz confronted Edward Poh on ParkAide/Snatch submitting its proposal to KRJMB despite being aware that ParkSpots had also done so. Edward Poh’s response was to merely suggest that he would have considered sub-contracting portions of the services to ParkSpots.
86
I verily believe that G-Village and KRJMB are two examples for which ParkSpots is able to produce documents, while there are other proposals that had been submitted by ParkAide/Snatch in competition with ParkSpots.
87
I was also able to obtain the carpark management proposal submitted by ParkAide/Snatch to Permata Alasan Sdn Bhd in respect of the Amp Walk site on Jalan Ampang. Now shown to me and annexed hereto is ParkAide/Snatch’s proposal to Permata Alasan Sdn Bhd dated 6-05-2022 marked as Exhibit “25”.
88
… Edward Poh and ParkAide/Snatch’s conduct as alluded to in the paragraphs above became a big source of concern for Datuk Choy.
89
It was clear to us that his conduct through ParkAide/Snatch was designed to prejudice ParkSpots, its business, and jeopardise the long-term business viability of ParkSpots.
90
In such circumstance, particularly with Edward Poh competing with ParkSpots after having had the benefit of knowledge of ParkSpots’ clients and business strategy, Datuk Choy decided to explore the possibility of carrying out the carpark operations business in partnership with third parties.
91
… it is in that regard that ParkPlus Sdn Bhd (“ParkPlus”) was established. The establishment of ParkPlus and its intended business operations were well within Edward Poh’s knowledge.
92
The decision was taken as there clearly was a breakdown in relationship between Edward Poh and Datuk Choy in light of Edward Poh’s own conduct.
93
93.During a conversation between Edward Poh, Datuk Choy and I sometime on or around the end of 2022, it was agreed that Datuk Choy will himself explore alternative opportunities in the carpark operations industry through separate entities whilst in the interim period carrying out the business of ParkSpots.
94
94.The understanding was that Edward Poh would further ParkAide/Snatch’s business operations, whilst Faiz and I would also assist Datuk Choy with the business operations of another company which he intended on forming. I state that Edward Poh was always aware of this arrangement.
95
I am advised by Datuk Choy and verily believe that it is in the spirit of this agreement that he and/or ParkSpots decided against taking any action against Edward Poh or ParkAide/Snatch for their conduct in jeopardising the business and financial viability of ParkSpots.
96
ParkSpots’ existence in the carpark operations industry was only made possible by Datuk Choy facilitating the provision of carpark operation contract and various sites belonging companies in which he was director or shareholder.
97
I state that any allegations of me or Faiz attempting to conceal ParkPlus from Edward Poh is simply untrue.
98
No attempts whatsoever were made by either Faiz or myself to conceal the existence of ParkPlus from Edward Poh. In fact, Exhibit PKL-20 of the Plaintiffs’ Affidavit No. 1 shows that Faiz kept ParkPlus documents openly on his workstation table, which Edward Poh had access to.
99
I have been advised by Faiz and verily believe that he had in fact had a conversation with Edward Poh regarding the business dealings of ParkAide/Snatch as well as ParkPlus. No objections were raised by Edward Poh.
100
I verily believe that the originating summons proceedings and the Anton Pillar Application were deliberately premised on facts that are materially untrue and designed to bear pressure on Faiz and I.
101
I am advised by Datuk Choy and verily believe that he and Edward Poh have discussed their ongoing disputes particularly concerning Edward Poh’s conduct. I am informed by Datuk Choy that Edward Poh had demanded that Datuk Choy buy out Feng Yu’s interest in ParkSpots, which Datuk Choy had declined to do. Allegation that Ivan Goh has wrongfully induced ParkSpots to commit a breach of the SHA
32
The plaintiffs further submit that Ivan Goh has also wrongfully induced ParkSpots to commit a breach of the SHA by not using ParkAide’s software and/or its services contrary to clause 3.3 of the SHA. Instead, Ivan Goh engaged another company, Sonicboom Solutions Sdn Bhd (“Sonicboom”), and installed their poles and system at ParkSpots’ parking sites. [See Enclosure 157 plaintiffs’ Written Submissions paragraphs 21 - 30].
33
This allegation is denied by Ivan Goh. He avers in his affidavit dated 20-10-2023 [Enclosure 18/170 PDF copyable page 42] as follows-
27
… ParkAide and Snatch will be referred to collectively “ParkAide/Snatch” because of their direct link to Edward Poh. All of ParkAide and Snatch’s conduct must necessarily be attributed to Edward Poh, given his dominant position, directly or indirectly in ParkAide and Snatch. PARKAIDE/SNATCH’S SOFTWARE, SYSTEM & FACILITIES WERE
28
… I discovered that Edward Poh had misrepresented the nature of ParkAide/Snatch’s software systems, intellectual property rights, and its ability to assist ParkSpots in the execution of its carpark operating services.
29
ParkAide/Snatch in fact did not possess the necessary software to accommodate contactless terminal transactions by contactless card access through facilities provided by third parties such as Touch ‘n Go, MasterCard and Visa (“Contactless Card Access”). At that time, ParkAide/Snatch was only able to support QR codes transactions via mobile phone applications.
30
As such, ParkSpots had to secure the necessary Contactless Card Access services from third-party vendors, such as Sonicboom Solutions Sdn Bhd (“Sonicboom”), … (“Third-Party Vendors”) in order to ensure that ParkSpots’ business operations were not delayed, …
31
The provision of Contactless Card Access service was vital …for ParkSpots as most customers prefer accessing parking sites by way of Touch n’ Go or EMV cards, …
32
Edward Poh was at all times aware of the need for ParkSpots to procure the software services from Third-Party Vendors due to ParkAide/Snatch’s inability to provide the same.
33
In fact, I had engaged with Edward Poh in the process of vetting the letter of award received from Sonicboom. He had also given his input on the terms of the agreement between ParkSpots and Sonicboom. As such, any allegations of Edward Poh being unaware of ParkAide/Snatch’s use of Sonicboom’s system is patently untrue. Now shown to me and annexed hereto is an email correspondence between ParkSpots and Edward Poh dated 25-06-2020 marked as Exhibit “4”
34
Edward Poh had not objected to ParkAide/Snatch securing the services of Third-Party Vendors, given ParkAide/Snatch’s inability to provide those services.
35
…
36
Besides being unable to provide Contactless Card Access services, the use of ParkAide/Snatch’s system had also resulted in ParkSpots facing numerous operational challenges.
37
ParkSpots had at all material times conveyed such operational challenges to ParkAide/Snatch, nevertheless such issues were never rectified … Now shown to me and annexed hereto is an email correspondence between ParkSpots and ParkAide/Snatch dated 10-10-2019 and 6-02-2020 respectively, collectively marked as Exhibit “5”.
38
Further, ParkSpots had also received complaints from its client, Bay Avenue Management Corporation (“Bay Avenue”) with regard to the terminal scanner of ParkAide/Snatch’s system, concerning inability to access the carpark. ... Now shown to me and annexed hereto is an email correspondence between Bay Avenue and ParkSpots dated 5-03-2021 and 14-06-2021, and Customer Complaint Report of February 2021, collectively marked as Exhibit “6”
39
In fact, even after Edward Poh had represented to ParkSpots that ParkAide/Snatch’s system had been integrated with Contactless Card Access, ParkSpots continued to face operational challenges as a result of ParkAide/Snatch’s provision of services. Now shown to me and annexed hereto is a letter dated 23-06-2022 from Lambang Prima Sdn Bhd and email correspondence between ParkSpots and ParkAide/Snatch dated July and August 2022, marked as Exhibit “7” [Emphasis added] Allegation that Ivan Goh breached sections 245, 248, 251, 257 and 259 of the CA 2016 concerning ParkSpots’ financial statements and audited accounts
35
The plaintiffs also submit that Ivan Goh has committed various breaches concerning ParkSpots’ financial statements and audited accounts. [See Enclosure 157 plaintiffs’ Written Submissions paragraphs 31 - 49].
36
These allegations are denied by Ivan Goh in his affidavit dated 20- 10-2023 [Enclosure 18/170 PDF copyable page 48] and rebutted in the defendants’ Reply Written Submissions Enclosure 164 at paragraphs 43 - 52. OS filed
41
On 22-09-2023, the plaintiffs filed the OS under sections 213, 218, 220, 248, 257, 259, 350 and 351 of the CA 2016 for the following orders:
1
a declaration that the 1st defendant had contravened sections 213, 218 and/or 220 of the CA 2016 for using information acquired by virtue of his position as a director or officer of ParkSpots Sdn Bhd (“ParkSpots”) to gain directly or indirectly a benefit for himself of any other person, or cause detriment to the company;
2
a declaration that the 1st defendant had contravened sections 213 and 248 of the CA 2016 for failure to ensure that the financial statements of ParkSpots are prepared and audited within six (6) months of its financial year end;
3
alternatively, if the financial statements of ParkSpots have been audited, a declaration that the 1st defendant had contravened sections 213, 257 and/or 259 of the CA 2016 for failure to circulate and lodge copies of the audited financial statements and report for the financial years 2020, 2021, and 2022 with the Companies Commission of Malaysia;
4
an injunction be granted to restrain the 1st defendant from utilising, disposing, distributing and/or transfer any assets of ParkSpots without the unanimous approval of the Board of Directors of ParkSpots;
5
an injunction be granted to restrain the 1st defendant, and/or their officers, agents, servants or employees from disclosing and/or using or otherwise misusing in any way, information acquired by virtue of the 1st defendant’s position as a director or officer of ParkSpots Sdn Bhd (“ParkSpots”) to gain directly or indirectly a benefit for himself of any other person, or cause detriment to the company.
6
an injunction be granted to restrain the 1st defendant, 2nd defendant and/or their officers, agents, servants or employees from aiding, abetting, advising and/or procuring any others to do any or all of the offending acts referred to in prayers (4) and (5) above;
7
an injunction be granted to compel the 1st and 2nd defendants and/or their officers, agents, servants or employees to provide all financial information and documents and/or supporting documents including but not limited to invoices, contracts, agreements, customer records, sales records, delivery records to the Board of Directors of ParkSpots and/or and independent financial consultant to be determined by the Plaintiffs for the purpose of preparing and auditing the financial statements of ParkSpots financial years 2020, 2021, and 2022 and to ensure compliance with sections 248 of the CA 2016 within fourteen
14
days from the date of this order and subsequently file an affidavit(s) affirming his compliance with this term;
8
an order for full discovery of all relevant documents and/or information, particularly yearly audited accounts, invoices, contracts, agreements, customer records, sales records, delivery records relating to the diversion of business of ParkSpots to third parties and for the full discovery to be carried out and performed by the defendants within fourteen (14) days from the date of service of the Judgment of the Honourable Court upon the Defendants or their solicitors;
9
that the 1st and 2nd defendants, whether jointly and/or severally, pay to the plaintiffs’ damages to be assessed by this Honourable Court together with interest at the rate of 5% per annum accruing thereon;
10
exemplary, punitive and/or aggravated damages to be assessed;
11
interest on the judgment sum and all other sums ordered payable by the defendants under section 11 of the Civil Law Act 1956 at the rate of 5% per annum from the date of this Originating Summons until full and final settlement or at such rate and for such period as this Honourable Court deems fit;
12
that the costs of this application be paid by the 1st and 2nd defendants, whether jointly and/or severally;
13
that the plaintiffs be given liberty to apply for further orders and/or directions from this Honourable Court; and
14
any further and other reliefs as may be deemed fit and proper by this Honourable Court. Grounds in support of the OS
42
The alleged grounds in support of the OS as set out by the plaintiffs in its OS are-
a
The plaintiffs have discovered that under the management of the 1st defendant, several issues have arisen in relation to ParkSpots which would constitute a contravention, or an attempt to contravene, the CA 2016. In particular: -
i
The 1st defendant who was assisted by the 2nd defendant had used information acquired by virtue of his position as a director or officer of ParkSpots to gain directly or indirectly a benefit for himself of any other person, or cause detriment to the company in violation of section 213 and 218 of the CA 2016;
II
(ii) The defendants have caused ParkSpots business to be diverted to other parties including a company known as ParkPlus Sdn Bhd (“ParkPlus”) and this is supported by evidence where projects meant for ParkSpots have now been taken over by ParkPlus;
III
(iii) The first defendant has contravened sections 213 and 248 of the CA 2016 for failing to ensure that the financial statements of ParkSpots are prepared and audited within six (6) months of its financial year end;
IV
(iv) Alternatively, if the financial statements of ParkSpots have been audited, Ivan had contravened sections 213, 257 and/or 259 of the CA 2016 for failure to circulate and lodge copies of the audited financial statements and report for the financial years 2020, 2021, and 2022 with the Companies Commission of Malaysia;
v
the 1st defendant’s failure to ensure that ParkSpots provided its management accounts and documents to the 1st plaintiff as the director of ParkSpots without reason, has amounted to a denial and infringement of the 1st plaintiff’s rights as the company’s director;
VI
(vi) The first defendant has caused and/or exposed ParkSpots to breach its contractual obligations under the Shareholder Agreement and License Agreement dated 30-01-2019 which is a breach of section 213 of the CA 2016;
VII
(vii) The 1st defendant has caused and/or exposed ParkSpots to litigation and/or potential litigation by engaging the company in actions that breach its contractual agreements and under-declaring the company’s income, all of which are in clear contravention of section 213 of the CA 2016;
f
As a result of the issues identified above, the interests of the Plaintiffs, being the director and shareholder of ParkSpots, are affected or would be affected by the conduct of the defendants; and Plaintiffs filed for ex-parte APO
71
On the same day as the filing of the OS, the plaintiffs filed an ex-parte Anton Piller Application against the defendants which was granted on 29-09-2023 but executed only on 06-10-2023. This time lag is significant as I will explain below.
72
The plaintiff justified the ex-parte application on the ground “Ivan and Faiz will destroy the evidence against them quickly without an Anton Piller Order.” [Emphasis added] [See paragraph [14] grounds of application in enclosure 3]. Executing the APO
73
Despite the alleged urgency, the plaintiff waited 7 days before executing the APO on 06-10-2023.
74
The delay was, it is likely, because the plaintiff wanted to call the defendants to attend a purported meeting so that, inter-alia, their communication devices like laptops and mobile phones can be seized. The defendants submit in Defendants’ Written Submissions Enclosure 184-
41
On 29-09-2023, Edward Poh issued an email to all senior management personnel of ParkSpots requesting for a meeting to be held on 6-10-2023 for the purposes of reviewing ParkSpots performance for the year 2023 and budgeting exercise for the year 2024. [Please see 1143/ 20].
42
Other senior management personnel, along with Ivan Goh and Faiz attended that meeting at Edward Poh’s request…
43
It was during that meeting that the Ex-Parte APO was suddenly executed.
44
At the conclusion of the execution exercise, the Defendants discovered a Memo … detailing amongst others, the objectives for the execution.
45
Interestingly, the primary focus of the Ex-Parte APO was on Datuk Choy’s link to ParkPlus, and to gather evidence of alleged misconduct on Datuk Choy’s part.
46
… none of the objectives listed in the Memo was disclosed to this Honourable Court when applying for the Ex-Parte APO. [Emphasis added] Memo
75
The Memo dated 05-10-2023 [“Memo”] was prepared by Cheang & Ariff for the search teams for the purpose of execution of the ex-parte APO. It can be seen in pages 1145 - 1151 of Enclosure 20 as Exhibit 28.
76
The Memo does not state the “Objectives” of the APO is to prevent the defendants from destroying evidence ,as stated in the grounds to support the application for ex-parte APO [See Enclosure 3 Ground 14] , “Ivan and Faiz will destroy the evidence against them”. Instead, the Objectives were, inter alia, stated as: i. To link Ivan, Faiz and Datuk Choy to Parkplus. ii. To show breach, fraud and or other legal wrongdoings of Ivan, Faiz and Datuk Choy; iii. To find irresponsible acts of negligence by Ivan in dealing with the Bay Avenue matter; and iv. To link Ivan and Datuk Choy as the puppet master of Parkplus and the cause of the Bay Avenue Suit. Non - disclosure
77
It is clear from the Memo that the primary focus of the Ex-Parte APO was on Datuk Choy’s link to ParkPlus, and to gather evidence of alleged misconduct on Datuk Choy’s part as well as the defendants. All these were not disclosed to the judge when applying for the ex-parte APO, in particular the targeting of Datuk Choy who is not even a defendant in the OS. Ex-Parte APO was draconian
78
The Ex-Parte APO was wide and draconian. It allows the plaintiff to enter six premises of the defendants “to search and inspect and to image, photograph, photocopy or transfer into an external storage medium (“Copy”) all the documents and articles believed to be those described in “Schedule B” hereto (“Listed Items”) either in hard copy (“Hard Copies”) or those electronically stored in any email accounts or text messaging/WhatsApp services or other communication applications or hard drives in any computers, laptops, mobile phones, tables, servers or cloud storage or USB and other forms of external hard drives or devices (“Electronic & Communication Medium & Devices”)” [See Enclosure 11 Order ex-parte dated 29-09-2023]. Defendant applied to set aside the ex-parte APO
79
On 16-10-2023 the defendants applied [Enclosure 16] to set aside the ex-parte APO.
80
I shall now procced to consider the defendant application to set aside the ex-parte APO. Court has jurisdiction to set aside an ex-parte APO that had been fully executed
81
In situation where the ex parte APO had been fully executed there is no necessity for the hearing of the inter partes. However, the Court has jurisdiction to hear an application to set aside the ex-parte APO, even after it has been executed. [See N-Visio Sdn Bhd v Horizon Multimedia Sdn Bhd & Ors [2009] MLJU 1249, HC].
82
In N-Visio Sdn Bhd v Horizon Multimedia Sdn Bhd & Ors [2009] MLJU 1249, HC, the High Court said-Mark S.W Hoyle in his book “The Mareva Injunction and related Orders” 3rd Edition at page 107 clearly explains the nature of Anton Piller as follows: “Anton Piller orders are potentially as far-reaching as mareva injunction and involve many potential difficulties, not only because of consequenent interference with the rights of individuals and companies, but also because of the effect on third parties. Anton Piller orders can be described as a formidable ally in preserving evidence and preventing empty judgment. The anton piller order, designed to prevent the destruction of evidence and/or the subject matter of a dispute, is a mandatory order placing a heavy burden on a defendant. It usually comes as a surprise to the recipient of the order, and is only effective if it is planned and executed efficiently and discreetly. By its nature it can do great harm to a defendant, and the courts have always been careful to emphasize the extraordinary nature of the order.” At the ex parte stage the order may/may not be executed fully depending on the circumstances of the case. In other words, the Plaintiff would have executed the search of the defendant’s premises and obtained the relevant documents pursuant to the ex parte order. In situation where the ex parte order had been fully executed, the purpose of the order had been served, there is no necessity for the hearing of the inter partes. … …. However, English cases over the years seems to recognize that after an ex parte Anton Piller Order had been granted there is no necessity for the Plaintiff to bring it forward, however the court would always entertain an application for the discharge of an Anton Piller order because of the undertaking as to damages, i.e if the order had been obtained wrongfully and there is the necessity to assess for damages incurred by the Defendant. But nowhere does the cases states that parties are to proceed for an inter partes hearing subsequently after an ex parte order had been granted. Bearing in mind the nature of an Anton Piller order, it does not serve any purpose for an Anton Piller Order which had been served, executed and spent, to proceed for an inter partes hearing. Subsequent hearing would only follow if the defendant wishes to set aside the ex parte order on grounds that it had been improperly granted or that the Defendant had caused grave prejudice or that it had caused an injustice to the defendant. Support for this proposition can be found in the case of Booker Mc Connell Plc & Anor v Plascow & Ors [1985] RPC 425 whereby the court succinctly ruled thus: “The retrospective discharge of fully executed Anton Piller Orders: Since this was raised as an issue or principle, it is convenient to deal with it before turning to the parties’ other contentions. There are two decisions of this court which clearly show, I think, that even a fully executed order can be discharged if it is established that it should never have been made. Indeed, this must be so whenever a defendant raises this contention and seeks to enforce the plaintiffs cross-undertaking in damages on the basis of which the order against him was made. [Emphasis added] Stringent requirements to be satisfied by an applicant for an Anton Piller order at an ex-parte stage
83
In Anton Piller KG v Manufacturing Processes Ltd and others [1976] 1 All ER 779 the requirements for an Anton Piller Order are stated as follows: There are three essential pre-conditions for the making of such an order, in my judgment. First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the plaintiff. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made. [ emphasis added]
84
Besides the three essential pre-conditions set out in Anton Piller KG v Manufacturing Processes Ltd and others [1976] 1 All ER 779, when applying for an ex-parte order an applicant is duty-bound to make an honest, full and frank disclosure of all relevant material facts within his knowledge, which failure may be a ground to set aside any order granted. [See Arthur Andersen & Co v Interfood Sdn Bhd [2005] 6 MLJ 239; [2005] 2 AMR 650; [2005] 2 CLJ 889, CA].
85
The Court of Appeal in Arthur Andersen & Co v Interfood Sdn Bhd [2005] 6 MLJ 239; [2005] 2 AMR 650; [2005] 2 CLJ 889, CA on ex parte APO said- [25] … we are entirely in agreement with the observation of the learned judge in the case of Makonka Electronic Sdn Bhd v Electrical Industry Workers’ Union & Ors when he said: It is a draconian order, granted by the court upon the balance of undertakings by the applicant and upon specific terms and conditions. Those terms, conditions and undertakings cannot be ignored or left for subsequent compliance at will. Compliance with the terms of the conditions and undertakings are necessary pre-conditions to the enforcement of the order… … [40] As expressed by the English courts it is also the law in this country that when applying for an ex-parte order an applicant is duty-bound to make an honest, full and frank disclosure of all relevant material facts within his knowledge, which failure may be a ground to set aside any order granted…
86
I shall now consider the three essential pre-conditions set out in Anton Piller KG v Manufacturing Processes Ltd and others [1976] 1 All ER 779 and the additional ground of “honest, full and frank disclosure of all relevant material facts within his knowledge” set out by the Court of Appeal in Arthur Andersen & Co v Interfood Sdn Bhd [2005] 6 MLJ 239; [2005] 2 AMR 650; [2005] 2 CLJ 889, CA. First, there must be an extremely strong prima facie case
87
Has the plaintiff satisfied this pre-condition?
88
My answer is negative. In my view the plaintiffs have failed to prove they have an extremely strong prima facie case based on the grounds set out in their written submissions dated 26-09-2023 filed for the ex-parte APO in Enclosure 8 at paragraphs 7and 8.
89
In my decision on Enclosure 1 I had dismissed the plaintiff’s OS with liberty to file afresh as a writ on the ground that the plaintiffs have failed to prove their case as there are disputes of facts that require a trial. My decision has been reported as Poh Kee Lock & Anor v Ivan Goh-Lee En Tatt & Anor [2025] MLJU 2726 HC. Secondly, the damage, potential or actual, must be very serious for the plaintiff
90
Has the plaintiff satisfied this pre-condition?
91
My answer is also negative. I have perused the plaintiffs’ Written Submissions dated 09-12-2023 at paragraphs 31 to 32. They alleged- 31 The breach of the Companies Act 2016 by the Defendants entails mismanagement and/or abuse of their respective positions in ParkSpots. The consequences of such breach include the loss of reputation, goodwill, and competitive edge of the company, which cannot be compensated by damages…
32
Therefore, the refusal of the APO Application would result in irreparable harm not just to ParkSpots, but also to the Plaintiffs’ interests as the director and shareholder of the company. Should the wrongdoings of the Defendants left unremedied, this would cause the evaporation of the Plaintiffs’ investments in and control over the company.
92
In my view, the plaintiffs have failed to adduce evidence the damage, potential or actual, would be very serious for the plaintiff. The refusal of the APO Application would not result in irreparable harm. The claims of the plaintiffs are all monetary and can be compensated by damages if they win later at trial. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made
93
Has the plaintiff satisfied this pre-condition?
94
My answer is also negative. I have perused the plaintiffs’ Written Submissions dated 09-12-2023 at paragraph 27. The plaintiffs have failed to adduce evidence to show the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.
95
Disagreements between parties to a joint venture and alleged breaches of a jv agreement are not synonymous with dishonesty and are no indication of any intention on the part of the defendants here to destroy evidence. I echo the following sentiments expressed by the Court of Appeal of Singapore in Computerland Corp v Yew Seng Computers Pte Ltd [1991] 3 MLJ 201, CA at 205– … the appellants on the evidence produced before the court were not entitled to the two Anton Piller orders which they had obtained. In the lengthy affidavit …, there was no evidence that there was a ‘grave danger’ or ‘real possibility’ that the respondents would or might destroy any documents and other evidence in their possession. … It was evident that the parties were engaged in ongoing disputes for some years, and there was no suggestion that in relation to these disputes the respondents had at any stage destroyed or threatened to destroy any documents or records. In that affidavit, Michael A McConnell alleged breaches of the agreement by the respondents and in particular the respondents' underpayment of royalties, their under-reporting of sales, their failure to furnish accounts, and their refusal to allow the appellants' accountant access to the accounting records of the respondents or to allow an audit. All such breaches of the agreement are, as the learned judge said, not synonymous with dishonesty and are no indication of any intention on the part of the respondents to destroy any evidence and thus frustrate the whole process of justice. The fact that the respondents had thus behaved wrongfully in their commercial relationship with the appellants, assuming that what was alleged … was substantially true, does not necessarily justify the granting of an Anton Piller order. … We cannot over-emphasize the draconian nature of the Anton Piller order and the very drastic effect and far-reaching consequences such an order has on a defendant when it is executed. It should be granted only in an exceptional case. [Emphasis added] Fourthly, when applying for an ex-parte order an applicant is duty-bound to make an honest, full and frank disclosure of all relevant material facts within his knowledge
96
Has the plaintiff satisfied this pre-condition?
97
My answer is also negative. The plaintiffs have failed to disclose the objectives stated in their Memo which were targeted to obtain evidence to sue the defendants and not to preserve evidence.
98
The plaintiffs have also failed to disclose they were searching for incriminating evidence against Datuk Choy.
99
The plaintiffs attempted to justify by asserting - “In any event, the information and averments raised in respect of Datuk Choy are not relevant to the subject matter of the APO Application and the Plaintiffs’ suit herein against the Defendants.” [See Enclosure 68 plaintiffs’ Written Submissions paragraph 11c].
100
But the facts, which I have set out above, show the real dispute is between Edward Poh and Datuk Choy and the target of the ex-parte APO was to obtain incriminating evidence against Datuk Choy.
101
For the reasons above, I allow Enclosure 16 which is the defendants’ application to set aside the ex-parte APO with costs of RM 40,000 subject to allocatur.
102
Lastly, I thank both counsel and their teams for their helpful submissions. Dated: 13th November 2025 …..…(signed)……… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiffs: Cindy Goh Joo Seong and Jessye Ng Ann Jerl Cheang & Ariff (Kuala Lumpur) Counsel for defendants: Mishand Pathmanathan and Celinne Teh Haris Ibrahim Kandiah Partnership (Petaling Jaya) CASES REFERRED TO: 1) Anton Piller KG v Manufacturing Processes Ltd and others [1976] 1 All ER 779. 2) Arthur Andersen & Co v Interfood Sdn Bhd [2005] 6 MLJ 239; [2005] 2 AMR 650; [2005] 2 CLJ 889, CA. 3) Booker Mc Connell Plc & Anor v Plascow & Ors [1985] RPC 425. 4) Computerland Corp v Yew Seng Computers Pte Ltd [1991] 3 MLJ 201, CA. 5) Makonka Electronic Sdn Bhd v Electrical Industry Workers’ Union & Ors. 6) N-Visio Sdn Bhd v Horizon Multimedia Sdn Bhd & Ors [2009] MLJU 1249, HC. 7) Poh Kee Lock & Anor v Ivan Goh-Lee En Tatt & Anor [2025] MLJU 2726, HC. LEGISLATION REFERRED TO: 1) CA 2016 sections 213, 218, 220, 245, 248, 251, 257, 259, 350 and 351. BOOK REFERRED TO: 1) Mark S.W Hoyle The Mareva Injunction and related Orders 3rd Edition.
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