1. Quantum Petroleum (M) Sdn Bhd v 1. Manimaran Periasamy (WA-22IP-14-04/2017)

QUANTUM PETROLEUM (M) SDN BHD (Co. No.: 705805-T)

RALPH MICHAEL (Passport No.: E4112053) … PLAINTIFFS

MANIMARAN PERIASAMY (NRIC No.: 660311-06-5455)

HO SEE KEONG (NRIC No.:540204-10-5611)

CLOUD DIGITAL TRADE IMPACT EXPORT SDN BHD (Co. No.: 1086289-H)

QUANTUM SUPREMO OIL (M) SDN BHD (Co. No.: 1088787-X)

NANO C VENTURES SDN BHD (Co. No.: 734618-A)

NANO C SDN BHD (Co. No.: 659613-D)

QS LUBRICANTS SDN BHD (Co. No.: 1183157-K) … DEFENDANTS 2 JUDGMENT (Court enc. no. 267)

This suit (Original Action) has been filed by the plaintiffs (Plaintiffs) on the ground that, among others, the seven defendants (Defendants) have infringed various intellectual property rights of the Plaintiffs (Plaintiffs’ IP Rights). The second Plaintiff (2nd Plaintiff) is an Australian citizen.

In the Original Action -

the Plaintiffs obtained an ex parte Anton Piller Order (APO) and an interlocutory restraining injunction (Interlocutory Injunction) against the Defendants. The Plaintiffs have given an undertaking to pay damages to the Defendants if, among others, the APO and Interlocutory Injunction are subsequently set aside by the Court (Plaintiffs’ Undertaking);

on 2.2.2018 -

the 1st to 5th and 7th Defendants obtained the following orders -

the 2nd Plaintiff was ordered to furnish security for costs (SFC Order) totaling RM250,000.00 (SFC Sum); and

(ii) the Plaintiffs were ordered to fortify the Plaintiffs’ Undertaking (Fortification Order) in a total sum of RM150,000.00 (Fortification Sum); 3

the Plaintiffs were given one week to propose, among others, when the SFC Sum and Fortification Sum (2 Sums) would be provided; and

if the Plaintiffs failed to provide the 2 Sums within the time period which would be subsequently ordered by the Court, the Original Action “shall” be dismissed (Peremptory Order);

on 9.2.2018, the Plaintiffs proposed three months from that date to provide the 2 Sums. The 1st to 5th and 7th Defendants however counter-proposed that the Plaintiffs should provide the 2 Sums within 3 weeks from 9.2.2018. This Court ordered -

the 2 Sums to be provided by the Plaintiffs within one month from 9.2.2018, namely the Plaintiffs shall provide the 2 Sums on or before 9.3.2018 (1st Dateline); and

the Plaintiffs have the liberty to apply to Court to extend the 1st Dateline [Order (9.2.2018)];

the Plaintiffs did not appeal to the Court of Appeal against the SFC Order, Fortification Order, Peremptory Order and Order (9.2.2018); and

on 8.3.2018, the Plaintiffs applied to Court to extend the 1st Dateline for a further two months. The 1st to 5th and 7th Defendants objected 4 strongly to this application. I however ordered a final extension of the 1st Dateline for six weeks from the 1st Dateline (Extension Order). According to the Extension Order, the Plaintiffs shall provide the 2 Sums on or before 19.4.2018 (2nd Dateline). There was no appeal to the Court of Appeal by any party against the Extension Order.

The Plaintiffs did not provide the 2 Sums on 19.4.2018. On 20.4.2018 -

the Original Action was dismissed pursuant to the Peremptory Order (Dismissal); and

the Plaintiffs filed Court enclosure no. 257 (Enc. 257) to, among others, to extend the 2nd Dateline for a period of two months. By consent of all parties, Enc. 257 was amended by the Plaintiffs. Court enclosure no. 267 (Enc. 267) is the amended Enc. 257. B. Issues

The following questions arise in Enc. 267:

whether Enc. 267 should be dismissed on one or both of the following grounds -

the Court is functus officio and has neither jurisdiction nor power to hear Enc. 267; and/or

the Plaintiffs should have appealed against the Dismissal to the Court of Appeal (instead of filing Enc. 267); and 5

if the Court has jurisdiction or power to hear Enc. 267, whether the Court should exercise its discretion under O 3 r 5(1) and (2) of the Rules of Court 2012 (RC) to extend the 2nd Dateline. C. Is Court functus officio regarding Enc. 267?

Learned counsel for the 5th Defendant, Mr. Donovan Cheah Swee Kin, contended that the Court has neither the jurisdiction nor the power to hear Enc. 267 because the Court is functus officio. Mr. Cheah relied on the High

Court’s decision in Public Prosecutor v Nasrun Effendi [2009] 3 CLJ In Nasrun Effendi, at p. 396-400, Mohd. Zawawi Salleh JC (as he then was) held that once the Magistrate’s Court had fined the accused for an offence under s 49(1) of the Customs Act 1967 and ordered the forfeiture of the exhibits in that case, the Magistrate’s Court was functus officio and could not subsequently ordered the release of the boat under a bond.

Firstly, there is a difference in the meaning between the term “jurisdiction” and the term “power”. I refer to the judgment of Thomson CJ (as he then was) in the Court of Appeal of the Federation of Malaya in Lee Lee Cheng v Seow Peng Kwang [1960] 1 MJ 1, at 3, as follows: “… the word "jurisdiction" is used to denote the types of subject matter which the Court may deal with and in relation to which it may exercise its powers. It cannot exercise its powers in matters over which, by reason of their nature or by reason of extra-territoriality, it has no jurisdiction. On the other hand, in dealing with matters over which it has jurisdiction, it cannot exceed its powers.” 6 (emphasis added).

Based on Lee Lee Cheng, this Court has “jurisdiction” to hear Enc. according to s 23(1)(a), (b) and (c) of the Courts of Judicature Act 1964 (CJA). I reproduce the relevant part of s 23(1)(a), (b) and (c) CJA as follows: “23(1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where -

the cause of action arose;

the defendant or one of several defendants resides or has his place of business;

the facts on which the proceedings are based exist or are alleged to have occurred; or … within the local jurisdiction of the Court …” (emphasis added).

I am not able to accede to Mr. Donovan Cheah’s above submission for the following reasons:

the Court’s “jurisdiction” to hear Enc. 267 is conferred by s 23(1)(a), (b) and/or (c) CJA;

this Court has “power” to hear Enc. 267 based on O 3 r 5(1) and (2) RC which read as follows - 7 “5(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings.

The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.” (emphasis added);

Nasrun Effendi is a criminal case where the functus officio doctrine has a wide application. However, in civil cases, the court is not functus officio and has the power to re-visit any order or judgment which has not been drafted, approved, sealed and extracted. This is clear from the following 2 Federal Court cases -

the judgment of Ong Hock Thye FJ (as he then was) in Ling Nam Rubber Works v Leong Bee & Co (No 2) [1968] 1 MLJ 265, at 266; and

Abdul Hamid FJ’s (as he then was) decision in Seong Fatt Sawmills Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd [1984] 1 MLJ 286, at 292-293; and

functus officio doctrine is based on case law and is subject to written law such as O 3 r 5(1) and (2) RC. 8 D. Whether Plaintiffs should have appealed against Dismissal to Court of Appeal

Mr. G. Rajasingam, learned counsel for the 1st to 5th and 7th Defendants, submitted that Enc. 267 should be dismissed solely on the ground that the Plaintiffs should have appealed to the Court of Appeal against the Dismissal. Reliance was placed on the following Federal Court cases:

the judgment of Steve Shim CJ (Sabah & Sarawak) in Lim Oh & Ors v Allen & Gledhill [2001] 3 CLJ 233; and

the decision of Zulkefli Makinuddin CJ (Malaya) (as he then was) in Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461.

In Lim Oh -

the first suit (1st Suit) was struck out by the learned Senior Assistant Registrar (SAR’s Order) due to the plaintiffs’ failure to comply with a peremptory order regarding the amendment of the writ and statement of claim;

the plaintiffs did not appeal against the SAR Order. Instead, the plaintiffs filed a second suit based on the same facts (2nd Suit); and

the Federal Court affirmed the striking out of the 2nd Suit on the ground that the 2nd Suit constituted an abuse of court process and the plaintiffs should have appealed against the SAR’s Order in the 1st Suit. 9

Syed Omar concerned the following:

the High Court granted a discovery order against the plaintiff in the first action (1st Action). The 1st Action was struck out by the learned Deputy Registrar due to the Plaintiff’s failure to comply with the discovery order (DR’s Order);

the plaintiff’s appeal against the DR’s Order to the High Court Judge was dismissed [High Court Order (1st Action)] and the plaintiff did not appeal to the Court of Appeal against the High Court Order (1st Action);

the plaintiff filed a second action based on the same facts (2nd Action); and

upon the defendant’s application, the High Court struck out the 2nd Action. The Court of Appeal reversed the High Court’s decision and reinstated the 2nd Action. However, the Federal Court reversed the Court of Appeal’s decision and restored the High Court’s order on the ground that the 2nd Action was an abuse of court process and the plaintiff should have appealed to the Court of Appeal against the High Court Order (1st Action).

I am not able to accept Mr. G. Rajasingam’s above submission. Lim Oh and Syed Omar can be easily distinguished from this case as follows: 10

in Enc. 267, the Plaintiffs have applied to Court under O 3 r 5(1) and

RC to extend the 2nd Dateline. If this Court exercises its discretion to extend the 2nd Dateline and if the Plaintiffs provide the 2 Sums within the extended time period (3rd Dateline), the Dismissal shall be set aside and the Original Action shall be reinstated. In Lim Oh and Syed Omar, no application for extension of time had been filed; and

the Plaintiffs in this case did not file a second action, unlike Lim Oh and Syed Omar. Hence, the Plaintiffs were not guilty of committing any abuse of court process. E. Should Court extend 2nd Deadline?

The Plaintiffs have advanced the following grounds in support of Enc. 267:

the 2 Sums (RM400,000.00) are substantial;

the Plaintiffs’ attempts to obtain financing for the 2 Sums have been “frustrated” by a third party;

the 2nd Plaintiff’s attempt to sell his property had been hindered by his own conveyancing solicitor. The 2nd Plaintiff even proposed for the Defendants to enter a private caveat over his property!;

the 2nd Plaintiff spends “all” his time in Malaysia and should be “treated” as a Permanent Resident of this country. The 2nd Plaintiff could not obtain his “D-10” visa due to the 1st Defendant’s “fault”; 11

the 1st to 4th and 7th Defendants continue to “flout” the orders of this Court by selling “Quantum Supremo” products which bear a registered trade mark (which has been licensed to the 2nd Plaintiff);

the 1st to 4th and 7th Defendants had lied about the 2nd Defendant’s whereabouts during the execution of the APO;

the Defendants had committed various breaches of APO;

the Defendants had wrongfully “poached” the Plaintiffs’ customers;

the 1st Plaintiff deals primarily with semi-governmental bodies; and

the 1st Plaintiff’s business is the first of its kind since the last 13 years (Plaintiffs’ Reasons).

My understanding of case law regarding O 3 r 5(1) and (2) RC is as follows:

the Court has a discretion to extend time under O 3 r 5(1) and (2) RC - please see Arifin Zakaria CJ’s judgment in the Federal Court case of National Union of Bank Employees v Director General of Trade Unions & Anor [2013] 5 AMR 729, at paragraph 27 (NUBE’s Case). In an application to extend time, the relevant matters which may be considered in the exercise of the court’s discretion (these matters are not exhaustive) are as follows -

the length of the delay; 12

whether there is any explanation for the delay and whether the opposing party has caused or contributed to the delay;

whether the delay has caused prejudice to the opposing party; and

if the delay has occasioned prejudice to the opposing party, whether such prejudice may be compensated in costs - please see NUBE’s Case;

the burden to persuade the Court to exercise its discretion to extend time under O 3 r 5(1) and (2) RC is on the applicant; and

the exercise of the Court’s discretion to extend time or otherwise is dependent on the particular facts of the case (which have been adduced by way of affidavits). Accordingly, cases on extension of time cannot constitute binding legal precedents from the view point of the doctrine of stare decisis - please see Ravichanthiran A/L Ganesan v Dato’ Mat Shah bin Safuan & Anor [2016] 1 LNS 66, at sub-paragraph 27(b).

I am unable to exercise my discretion under O 3 r 5(1) and (2) RC to extend the 2nd Dateline. This is due to the following reasons:

the Plaintiffs have been given more than 2½ months from the date of the SFC Order and Fortification Order to provide the 2 Sums; 13

the 1st to 5th and 7th Defendants had strenuously objected to the extension of the 1st Dateline. I had overruled such an objection and granted the Extension Order with the condition that the Extension Order was final;

the Plaintiffs’ Reasons did not provide any real or reasonable prospect on when the Plaintiffs can provide the 2 Sums. In other words, even if I have allowed Enc. 267 with a 3rd Dateline, the Plaintiffs may still fail to provide the 2 Sums on or before the 3rd Dateline;

in the Original Action, the Plaintiffs had applied to Court to lift the corporate veil of the 3rd, 4th 5th, 6th and 7th Defendants. The Plaintiffs had also pleaded that the Defendants had -

infringed the registered trade marks and copyright of the 1st

committed the tort of passing off and the tort of breach of confidence; and

conspired to -

infringe the Plaintiffs’ IP Rights; and

(ii) interfere unlawfully with the 1st Plaintiff’s business. 14 Before Enc. 267 was heard, the trial of the Original Action had started - one witness had already been called by the Plaintiffs and his examination had been completed. As the Original Action is based on many causes of action, if a 3rd Dateline is given by me, this means that the 1st to 5th and 7th Defendants have to expend much time, expense and effort to defend the Original Action. In this manner, the 1st to 5th and 7th Defendants would suffer irreparable prejudice in the event Enc. 267 is allowed (the Original Action has to be continued as a corollary) and if the Plaintiffs fail to furnish the 2 Sums by the 3rd Dateline; and

the prejudice occasioned to the 1st to 5th and 7th Defendants as described in the above sub-paragraph 4, cannot be compensated in costs to be paid by the Plaintiffs.

It is not disputed that the Plaintiffs bear the onus to persuade this Court to exercise its discretion to extend time under O 3 r 5(1) and (2) RC. Premised on the reasons explained in the above paragraph 15, I am of the view that the Plaintiffs have failed to discharge the burden for this Court to allow Enc. 267. 15

Based on the above reasons, Enc. 267 is dismissed with costs. WONG KIAN KHEONG Judge High Court (Commercial Division) Kuala Lumpur DATE: 28 SEPTEMBER 2018 Counsel for Plaintiffs: Mr. Dipendra A/L Harshad Rai & Mr. Pravind Suppiah (Messrs Koh Dipendra Jeremiah Law) Counsel for 1st to 4th Mr. Rajasingam Gothandapani, and 7th Defendants: Dato’ Kevin Sathiaseelan A/P Ramakrishnan, Puan Azura bt. Adnan & Ms. VC Thubasheni A/P Casinathan (Messrs Kevin & Co.) Counsel for 5th Defendant: Mr. Donovan Cheah Swee Kin & Encik Amirul Izzat bin Hasri (Messrs Donovan & Ho)