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 enclosure nos. 448 and 480)

In this suit -

the plaintiffs (Plaintiffs) claimed that the seven defendants had infringed various intellectual property rights of the Plaintiffs (Original Action);

the first, second, third, fourth and seventh defendants (1st Defendant, 2nd Defendant, 3rd Defendant, 4th Defendant and 7th Defendant) counterclaimed that the Plaintiffs had committed the following torts against the 1st to 4th and 7th Defendants (Counterclaim) -

defamation;

conspiracy to injure the good name and reputation of the 1st to 4th and 7th Defendants; and

abuse of court process; and

the Plaintiffs and the sixth defendant had resolved amicably the Original Action.

In the Original Action, the Plaintiffs had obtained an ex parte Anton Piller Order (APO) and an interlocutory restraining injunction (Interlocutory 3 Injunction) against all the defendants. The Plaintiffs had given an undertaking to pay damages if, among others, the APO and Interlocutory Injunction were subsequently set aside by the court (Plaintiffs’ Undertaking).

On 2.2.2018, the 1st to 4th Defendants, fifth defendant (5th Defendant) and 7th Defendant obtained the following orders from this court:

the second plaintiff (2nd Plaintiff) was ordered to furnish security for costs for the conduct of the Original Action (SFC Order) totaling RM250,000.00 (SFC Sum); and

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

This court subsequently ordered as follows, among others -

the SFC Sum and Fortification Sum (2 Sums) shall be furnished by the Plaintiffs on or before 9.3.2018 (1st Dateline);

the Plaintiffs are given liberty to apply to court to extend the 1st Dateline; and

if the Plaintiffs fail to provide the 2 Sums within the 1st Dateline or any time period which is extended by the court, the Original Action shall be dismissed (Peremptory Order). 4

On 8.3.2018, upon an application by the Plaintiffs to extend the 1st Dateline, the court extended the 1st Dateline for six weeks (Extension Order) whereby the Plaintiffs were required to pay the 2 Sums on or before 19.4.2018 (2nd Dateline).

The Plaintiffs did not appeal to the Court of Appeal against SFC Order, Fortification Order and Peremptory Order. The 1st to 5th and 7th Defendants did not file an appeal to the Court of Appeal against the Extension Order.

The Original Action and Counterclaim were tried together. The trial commenced with the Plaintiffs calling their first witness, Mr. Khoo Boon Ping (SP1).

The Plaintiffs did not provide the 2 Sums on or before the 2nd Dateline (19.4.2018). On 20.4.2018, the Plaintiffs applied to extend the 2nd Dateline for a period of two months (Enc. 267). This court dismissed Enc. 267 with costs and consequently, the Original Action was dismissed pursuant to the Peremptory Order (Dismissal Order). The grounds of judgment regarding the Dismissal Order are reported in [2018] 6 MLRH 618. The Dismissal Order has been affirmed by the Court of Appeal.

In view of the Dismissal Order, only the trial of the Counterclaim proceeded as follows: 5

the 1st to 4th and 7th Defendants called all their witnesses to support the Counterclaim and closed their case (Counterclaimants’ Case) on 30.5.2019;

the Plaintiffs then opened their defence against the Counterclaim [Plaintiffs’ Defence (Counterclaim)]; and

during the re-examination of the 2nd Plaintiff on 1.7.2019, for the first time, the 2nd Plaintiff testified that the articles which allegedly defamed the 1st to 4th and 7th Defendants (Impugned Articles) were not written by the Plaintiffs but were written by the 2nd Plaintiff’s nephew, Mr. Peter Michael (Mr. Michael). B. Two applications by Plaintiffs (2 Applications)

On 11.7.2019, the Plaintiffs applied in court enc. no. 448 (Enc. 448) for, among others, leave to call Mr. Michael as a witness for the Plaintiffs’ Defence (Counterclaim). With regard to Enc. 448, I gave directions for the exchange of affidavits and written submission. I then fixed the decision of Enc. 448 to be delivered on 19.8.2019.

The affidavit and written submission the 1st to 4th and 7th Defendants opposed Enc. 448 on the ground, among others, that the Plaintiffs’ pleading did not plead that Mr. Michael had written the Impugned Articles.

Before I could deliver my decision on Enc. 448, the Plaintiffs applied on 19.9.2019 in court enc. no. 480 (Enc. 480) for, among others, leave to 6 amend the Plaintiffs’ “Reply to Defence and Defence to Counterclaim” (Proposed Amendment). The Proposed Amendment pleaded for the first time as follows, among others:

the Plaintiffs did not write the Impugned Articles. Nor were the Plaintiffs involved in any manner with the publication and uploading of the Impugned Articles on the Internet;

the Impugned Articles were written by Mr. Michael;

Mr. Michael emailed the soft copy of the Impugned Articles (Soft Copy) to a person named “Jack”. The full name of Jack was not pleaded;

Jack emailed the Soft Copy to Jack’s “friend” (Jack’s Friend) who was not known to the Plaintiffs. No details regarding Jack’s Fried were given in the Proposed Amendment; and

Jack’s Friend uploaded the Impugned Articles on the Internet.

In the interest of justice, I decided to hear Enc. 480 before Enc. 448. If I have heard Enc. 448 first, this would be unjust to the Plaintiffs because such a course of action would have rendered Enc. 480 redundant. C. Issues

The questions to be determined in these 2 Applications are as follows:

in respect of Enc. 480 - 7

whether the court should exercise its discretion to allow Enc. 480 when -

it is unjust to the 1st to 4th and 7th Defendants who have closed the Counterclaimants’ Case and will be irreparably prejudiced by the Proposed Amendment;

(ii) Enc. 480 had not been made in good faith and was only filed after the affidavit and written submission the 1st to 4th and 7th Defendants had objected to Enc. 448 on the ground that the Plaintiffs did not plead that the Impugned Articles were written by Mr. Michael;

(iii) the Proposed Amendment would change the Plaintiffs’ Defence (Counterclaim) from one character into another and inconsistent character;

(iv) there is no “real prospect of success” that the Plaintiffs can prove the Proposed Amendment in this case; and

there was an excessive delay in the filing of Enc. 480 which had not been explained in the Plaintiffs’ affidavit; and

can the court depart from its earlier ruling made on 5.7.2018 during the cross-examination of the 1st Defendant (Ruling)? In the Ruling, I allowed an oral objection by the learned counsel of the 1st to 4th and 7th Defendants that the Plaintiffs’ learned 8 counsel could not put to the 1st Defendant that the Impugned Articles were not written by the Plaintiffs;

regarding Enc. 448 -

whether the court’s discretion should be exercised to allow the Plaintiffs to call Mr. Michael as a witness in support of the Plaintiffs’ Defence (Counterclaim) when -

the Plaintiffs’ pleading had admitted that the Impugned Articles were written by the Plaintiffs; and

(ii) there would be prejudice to the 1st to 4th and 7th Defendants who had closed the Counterclaimants’ Case and such a prejudice could not be compensated in costs; and

is the court bound by the Ruling?; and

whether this court’s decision in the 2 Applications (2 Decisions) are appealable to the Court of Appeal in view of the definition of “decision” in s 3 of the Courts of Judicature Act 1964 (CJA). D. Enc. 480

I reproduce below O 1A, O 2 r 1(2), O 20 rr 5(1) and 8(1) of the Rules of Court 2012 (RC): 9 “Regard shall be to justice O 1A In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. O 2 r 1(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. Amendment of writ or pleading with leave O 20 r 5(1) Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct. Amendment of certain other documents O 20 r 8(1) For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct.” (emphasis added).

It is decided in Limatic Holdings Sdn Bhd v Perbadanan Kemajuan Negeri Selangor [2019] MLJU 980, at [8], as follows: 10 “[8] I am of the following view regarding the court’s power to allow parties to amend their pleadings:

by reason of O 1A and O 2 r 1(2) RC, all the RC, including O 20 rr 5(1) and 8(1) RC, “shall” be applied by the court with regard to the “overriding interest of justice” and not only to the technical non-compliance with RC. It is to be noted that O 2 r 1(2) RC is not found in the Rules of High Court 1980 (RHC). O 1A has been inserted into RHC with effect from 16.5.2002 [please see Rules of the High Court (Amendment) 2002, PU(A) 197/02]. Cases regarding amendment of pleadings which have been decided before the introduction of O 1A RHC and O 2 r 1(2) RC, in my opinion, should be read with caution;

whether the court allows a pleading to be amended pursuant to O 20 rr 5(1) and 8(1) RC is an exercise of the court’s discretion. Accordingly, cases on the exercise of the court’s discretion to allow amendment of pleadings under O 20 rr 5(1) and 8(1) RC, cannot constitute binding legal precedents from the view point of the stare decisis doctrine;

the following matters, not exhaustive, may be considered in the exercise of the court’s discretion pursuant to O 20 rr 5(1) and 8(1) RC -

the “overriding” consideration is whether it is just for the court to allow an application to amend a pleading (Amendment Application); 11

whether an Amendment Application is made in good faith or otherwise - please see the Federal Court’s judgment delivered by Mohamed Azmi FJ in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213, at 214. The Amendment Application is not bona fide if -

the Amendment Application is a “tactical manoeuvre” - please see the judgment of Zulkefli Ahmad Makinudin CJ (Malaya) (as he then was) in the Federal Court case of Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1, at [28];

(ii) the Amendment Application is filed to delay an expeditious disposal of the action in question. It is to be noted that the three-fold objective of RC is to ensure a just, expeditious and economical disposal of cases - please see O 34 r 1(1)(b) RC and CELCOM (M) Bhd & Anor v Tan Sri Dato’ Tajudin bin Ramli & Ors and another case [2017] 4 AMR 418, at [19] and [20]; or

(iii) the Amendment Application is made for an ulterior, improper or collateral purpose;

whether there is a delay in the filing of the Amendment Application - Hong Leong Finance, at [25]. In this regard -

at what stage of the proceedings is the Amendment Application made? If the Amendment Application is made when the case is at an advanced stage, the applicant bears a “heavy onus” to persuade the court to allow the Amendment Application - Hong Leong Finance, at [21]; and 12

(ii) does the applicant have a reason affirmed by way of an affidavit to explain the delay in the filing of the Amendment Application? - Hong Leong Finance, at [25]; and

the following nature of the proposed amendment to the pleading has to be considered -

does the Amendment Application introduce a new cause of action or a new defence? In this sense, has the Amendment Application changed the action from one character into an action of another and inconsistent character? - Yamaha Motor, at p. 214-215;

(ii) if the Amendment Application introduces or substitutes a new cause of action which is time-barred, the court should consider O 20 r 5(2) and (5) RC (not in this case);

(iii) has the Amendment Application disclosed full particulars of the proposed amendment of the pleading for the court to decide that there is a real prospect of success for the applicant in proving the same? - Hong Leong Finance, at [33(e)]; and

(iv) would the Amendment Application prejudice the opposing party and if so, can such a prejudice be compensated in the form of costs to be paid by the applicant? - Yamaha Motor, at p. 214; and 13

the applicant in an Amendment Application has the burden to persuade the court to exercise its discretion to grant the Amendment Application.” (emphasis added). The decision in Limatic Holdings has been affirmed on appeal to the Court of Appeal.

I exercise my discretion under O 1A, O 2 r 1(2), O 20 rr 5(1) and 8(1) to refuse Enc. 480 with costs. This exercise of discretion is premised on the following reasons:

it is not in the interest of justice for this court to allow Enc. because paragraphs 38, 40 and 41 of the Plaintiffs’ “Reply to Defence and Defence to Counterclaim” have pleaded a defence of justification against the Counterclaim. The Plaintiffs’ learned counsel had put the defence of justification to the witnesses for the 1st to 4th and 7th Defendants. As such, the 1st to 4th and 7th Defendants did not adduce any evidence in the Counterclaimants’ Case that the Plaintiffs had made the Impugned Articles. The 1st to 4th and 7th Defendants had already closed the Counterclaimants’ Case. To allow Enc. 480 at this eleventh hour, will cause prejudice to the 1st to 4th and 7th Defendants which cannot be compensated in costs;

the purpose of making Enc. 480 is important as explained by Mohamed Azmi FJ in the Federal Court case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213, at 214. 14 Enc. 480 had not been made in good faith because Enc. 480 was only filed after the affidavit and written submission the 1st to 4th and 7th Defendants had objected to Enc. 448 on the ground that the Plaintiffs did not plead that the Impugned Articles were written by Mr. Michael (Opposition to Enc. 448). Accordingly, Enc. 480 was a “tactical manoeuvre” to circumvent the Opposition to Enc. 448 - please see the judgment of Zulkefli Ahmad Makinudin CJ (Malaya) (as he then was) in the Federal Court case of Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1, at [28];

the Plaintiffs’ “Reply to Defence and Defence to Counterclaim” relied on the defence of justification (the Plaintiffs had written the Impugned Articles). The Proposed Amendment would change the Plaintiffs’ Defence (Counterclaim)] from one character into another and inconsistent character (Plaintiffs did not write the Impugned Articles) - please see Yamaha Motor, at p. 214-215;

the Plaintiffs have to satisfy this court that there is a “real prospect of success” that the Plaintiffs can prove the Proposed Amendment in this case - please refer to Hong Leong Finance, at [33(e)]. SP1 testified that the 2nd Plaintiff had informed SP1 that the 2nd Plaintiff had written and published the Impugned Articles. SP1 is an independent witness. The 2nd Plaintiff was present in court when SP1 gave the above evidence. Premised on SP1’s evidence, there is no real prospect of success that the Plaintiffs can prove the Proposed Amendment in this case; and 15

if the Plaintiffs did not write the Impugned Articles, the Plaintiffs could have easily pleaded as such in their “Reply to Defence and Defence to Counterclaim” (filed on 28.8.2017). At all material times, the Plaintiffs were legally represented. The Plaintiffs need not wait until 19.9.2019 to file Enc. 480. There is no reasonable explanation in the Plaintiffs’ affidavit for an inordinate delay of 2 years 22 days (from 28.8.2017 to 19.9.2019) in the filing of Enc. 480.

Additionally or alternatively, I am not satisfied that the Plaintiffs have discharged the onus to persuade this court to exercise its discretion pursuant to O 1A, O 2 r 1(2), O 20 rr 5(1) and 8(1) RC to allow Enc. 480.

It is trite law that once a court has decided a matter regarding evidence and procedure during proceedings, all parties are estopped from applying to the same court to re-visit the matter. I rely on the following Court of Appeal cases, all decided by Gopal Sri Ram JCA (as he then was) -

Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 CLJ 57, at 65-66;

Syarikat Telekom Malaysia v Business Chinese Directory [1997] 1 CLJ 596, at 599-600; and

Tenaga Nasional Bhd v Prorak Sdn Bhd & Anor [2000] 1 CLJ 553, at 563-566. 16 Based on the above Court of Appeal decisions which are binding on me by reason of the stare decisis doctrine, the Plaintiffs are estopped from re-visiting the Ruling by way of Enc. 480. If otherwise, before the conclusion of the trial of this case, all my rulings in respect of evidence and procedure can be subsequently challenged by any party. In such an event, an expeditious and economical disposal of this case cannot be attained. The RC has a three-fold objective (3 Objectives), namely to ensure a just, expeditious and economical disposal of cases - please see O 34 r 1(1)(b) RC and CELCOM (M) Bhd & Anor v Tan Sri Dato’ Tajudin bin Ramli & Ors and another case [2017] 4 AMR 418, at [19] and [20]. I should add that the Plaintiffs have a right to challenge the Ruling as follows -

after the trial of the Counterclaim has been concluded;

this court delivers a decision against the Plaintiffs (Final Decision);

the Plaintiffs appeal to the Court of Appeal against the Final

in the Plaintiffs’ Appeal (Final Decision), the Plaintiffs are entitled to submit that the Ruling has been made erroneously.

I have not overlooked O 92 r 4 RC, the court’s inherent jurisdiction and inherent power. There cannot be any resort to O 92 r 4 RC, the court’s inherent jurisdiction and inherent power to support Enc. 480 when the 17 Rules Committee has expressly provided in O 20 rr 5(1) and 8(1) RC for the court’s discretionary power to amend pleadings - please see CELCOM (M) Bhd & Anor v Tan Sri Dato’ Tajudin bin Ramli & Ors and another case [2017] AMEJ 1009, at [14].

O 34 r 2(2)(l) and (m) RC provide as follows: “O 34 r 2(2) At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including - …

the period within which the parties have to exchange and file their list of witnesses;

the period within which the parties have to exchange and file witness statements of all witnesses who may give evidence at the trial; …” (emphasis added).

This court had given pre-trial case management directions (PTCM Directions) for, among others, all parties to file and serve their -

list of witnesses under O 34 r 2(2)(l) RC (List of Witnesses); and

witness statements before the commencement of trial of this case. 18 The PTCM Directions were given to achieve the 3 Objectives and to prevent a “trial by ambush”.

I am of the view that the court has a discretion under O 92 r 4 RC, the court’s inherent jurisdiction and inherent power to allow a party (X) to call a witness (New Witness) who is not listed in X’s List of Witnesses. In exercising this discretion, the court may consider the following matters (which are not exhaustive):

whether it is in the interest of justice for the New Witness to be called;

does X have a good reason for not including the New Witness in X’s List of Witnesses? In other words, whether X’s application for leave to call the New Witness (X’s Application) is made in good faith and is not filed for an ulterior, improper or collateral purpose (eg. to delay the trial);

the opposing party (Y) is not prejudiced by the calling of the New Witness and if there is any prejudice to Y, such a prejudice can be compensated by costs or by an adjournment of the trial under O 35 r 3 RC (with X bearing the costs thrown away in respect of the adjournment of the trial); and

X’s Application should be made promptly. If there is any delay in the filing of X’s Application, there should be a reasonable explanation for such a delay. 19 Needless to say, X has the burden to persuade the court to exercise its discretion to allow X to call the New Witness.

I am not able to exercise my discretion pursuant to O 92 r 4 RC, the court’s inherent jurisdiction and inherent power to allow Enc. 448. This decision is premised on the following reasons:

the Plaintiffs are bound by their “Reply to Defence and Defence to Counterclaim” - please see the judgment of Azahar Mohamed FCJ (as he then was) in the Federal Court in Saiman bin Umar v Lembaga Pertubuhan Peladang & another appeal [2015] 6 MLJ 492, at [41]. The Plaintiffs’ “Reply to Defence and Defence to Counterclaim” pleaded a defence of justification against the Counterclaim. If this court allows Enc. 448, this means the Plaintiffs can call Mr. Michael to give evidence which will be contrary to the Plaintiffs’ own pleading in their “Reply to Defence and Defence to Counterclaim”;

it is unjust to allow Enc. 448. This is because firstly, in view of the Plaintiffs’ “Reply to Defence and Defence to Counterclaim” (which had pleaded a defence of justification against the Counterclaim), the 1st to 4th and 7th Defendants did not adduce any evidence in the Counterclaimants’ Case that the Plaintiffs had made the Impugned Articles. Secondly, the 1st to 4th and 7th Defendants had closed the Counterclaimants’ Case. If I have allowed the Plaintiffs to call Mr. 20 Michael to testify in this case, the 1st to 4th and 7th Defendants will suffer prejudice which cannot be compensated in costs; and

the Plaintiffs are represented by lawyers at all material times. There is no reasonable explanation why -

the Plaintiffs could not have included Mr. Michael in the Plaintiffs’ List of Witnesses which was filed on 15.12.2017 (court enclosure no. 151) (Enc. 151);

the Plaintiffs could not have promptly added Mr. Michael to Enc. 151; and

Enc. 448 is filed so late (11.7.2019).

There is another reason for disallowing Enc. 448. The Plaintiffs are estopped from challenging the Ruling by way of Enc. 448 - please refer to the Court of Appeal cases and reasons stated in the above paragraph 19. F. Whether Plaintiffs can appeal against 2 Decisions

I reproduce below the definition of “decision” in s 3 CJA and s 67(1) CJA: 21 “Interpretation s 3. In this Act, unless the context otherwise requires - … “decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties; … Jurisdiction to hear and determine civil appeals 67(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought.” (emphasis added).

In Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614, at [28], [29], [36], [37], [40] and [44], Zainun Ali FCJ delivered the following judgment of the Federal Court: “[28] On the interpretation of the word ‘decision’, the relevant paragraph in s 3 is divided into two parts. The first part identifies ‘decision’ in the form of ‘judgment, sentence or order’ of the court. It provides an extensional definition of the word decision by listing instances of the set of things included therein. In other words the concept of decision is not explained but the objects that fall under this word are listed. [29] The second part of the paragraph qualifies that these forms of decision do not include ‘any ruling made in the course of a trial or 22 hearing of any cause or matter which does not finally dispose of the rights of the parties’. It is noted that the second part was inserted in s 3 by Act A1031 which came into effect on 31 July 1998. Based on the said provision, at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of s 3. There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties. … [36] The intention of the Legislature when drafting the amendment to s 3 was that the amendment should serve as a filter process for appeals. It must be emphasised that for this purpose, s 3 is intended to be read together with sub-s 67(1) [CJA]. [37] This is evident from the explanatory statement to the Bill of Act A1031 which reads:

Clause 2 seeks to amend section 3 of Act 91. At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts. … [40] At this juncture, it is noted that the decision of the Court of Appeal in Tycoon Realty Sdn Bhd which was relied on by Perkayuan 23 failed to give regard to the purposive and literal construction of sub-s 67(1) and s 3 [CJA]. … [44] In view of the above, we are unable to agree with the approach taken by learned counsel for Perkayuan, that the scope of a ‘decision’ in s 3 is excluded from sub-section 67(1) [CJA]. Sub-section 67(1) [CJA] must be read together with s 3 [CJA].” (emphasis added).

It is clear that the 2 Decisions are rulings “made in the course of a trial” which do “not finally dispose of the rights of the parties” in this case. Hence, premised on Kempadang Bersatu, the 2 Decisions are not appealable to the Court of Appeal by reason of the definition of “decision” in s 3 read with s 67(1) CJA.

When I delivered my oral grounds for the 2 Decisions, I had informed all learned counsel that until a delivery of the Final Decision of this case, the Plaintiffs could not appeal against the 2 Decisions by virtue of the definition of “decision” in s 3 read with s 67(1) CJA (as construed in Kempadang Bersatu). After I have given the Final Decision in this case, the Plaintiffs can, of course, challenge the 2 Decisions by way of an appeal to the Court of Appeal against the Final Decision - please see the above paragraph 19. 24

The upshot is the 2 Applications are dismissed with costs. WONG KIAN KHEONG Judge High Court (Commercial Division) Kuala Lumpur DATE: 2 DECEMBER 2019 Counsel for Plaintiffs: Mr. Sheelan A/L Arjunan, Ms. Hema Nandhini A/P Maseeahpillai & Ms. Ryshinah A/P Ramamoorthi (Messrs Sheelan Arjunan) Counsel for 1st to 4th Mr. Rajasingam Gothandapani, and 7th Defendants: Dato’ Kevin Joshua, Ms. Margaret Tan Hui Ling & Mr. Davey Wan Guan Hui (Messrs Kevin & Co.)