Cip Group Sdn Bhd v 1. ) Renqui Dongtai Import & Export Trade Co Ltd (BA-22NCvC-98-03/2025)

RENQUI DONGTAI IMPORT & EXPORT … DEFENDAN-TRADE CO. LTD.

SITC CONTAINERS LINES MALAYSIA SDN. BHD. [NO. PENDAFTARAN SYARIKAT : 202001026746 (1383066-K)]

KMTC LINE (MALAYSIA) SDN. BHD. [NO. PENDAFTARAN SYARIKAT : 500612-P]

HEUNGA-A (M) SDN. BHD. [NO. PENDAFTARAN SYARIKAT : 199501012998 (342200-X)] DAN 18/09/2025 15:52:58 BA-22NCvC-98-03/2025 Kand. 136 … PENCELAH- (NO. PENDAFTRAAN SYARIKAT KOREA : PENCELAH 110111-0406531)] (NO. PENDAFTRAAN SYARIKAT KOREA : 110111-7291597)] GROUNDS OF JUDGMENT (Enclosure 97 and 99) A.

Enclosures 97 and 99 are the plaintiff’s application to strike out the affidavits filed by and on behalf of the proposed intervenors, Heung A Line Co Ltd and Korea Marine Transport Co Ltd, respectively, pursuant to Order 41 rule 6, Order 32 rule 13, Order 34 rule 1, and Order 92 rule 4 of the Rules of Court 2012.

On 28 July 2025, this Court dismissed Enclosures 97 and 99. B.

The plaintiff is a company engaged in general trading, import, export and distribution of goods, including carpets and having its business address in PT24335, PT 24336 and PT 24380 Kawasan Perindustrian Nilai Utama Enterprise Park, Nilai, 71800 Negeri Sembilan.

The first defendant is a company incorporated in China and engaged in the trade of artificial grass carpets.

The second, third and fourth defendants are a company incorporated in Malaysia and is the charge liner withholding the retainer cargo containing goods.

The plaintiff and the first defendant had an existing commercial and contractual relationship. On 10.3.2025, they entered into a Payment Terms Agreement for the purchase of artificial grass carpets. The plaintiff claimed that the first defendant had breached their obligations under the contract.

There are five Bills of Lading under the second defendant, two Bills of Lading under the third defendant, and two Bills of Lading under the fourth defendant. Based on the Bills of Lading, 16 containers are currently detained at Port Klang by the second, third and fourth defendant.

The cause of action against the second, third and fourth defendants is for tort of conversion and/or negligence.

According to the plaintiff, the first defendant failed and refused to release the cargo containing the goods to the plaintiff despite the required payment being settled by the plaintiff and acknowledged by the first defendant.

On 19 March 2025, the plaintiff obtained an ex parte prohibitory injunction preventing the defendants, including their shareholders, directors, officers, employees, and/or agents, from interfering with and/or obstructing the plaintiff from using and/or enjoying the cargo container containing the goods. This includes, but is not limited to, prohibiting the change of the List of Bills of Lading to the defendant and/or third parties, as well as preventing the return of the cargo container containing the goods to the defendant in China and/or third parties until the full disposal of this case.

Besides that, the prohibitory injunction also prevents the Defendants, whether by themselves or through their staff, employees, and/or agents, from taking any further steps that may obstruct the Plaintiff's ability to enjoy benefits from the contractual agreement and/or continue business operations relating to the supply of the cargo container of goods until further order from this Court.

There are two proposed interveners in this Suit, which are Korea Marine Transport Co. Ltd (KMTCL) and Heung A Line Co Ltd.

KMTCL is a Korean company applying as an intervener in this suit to defend its interest. KMTCL is the carrier carrying the cargo in the containers no. BMOU6365991, FCIU7232100 dan BMOU6925592 (“Cargo”), from the Port of Tianjin, China to Port of Port Klang North, Malaysia. Two draft Bills of Lading No. KMTCXGG2753252A and KMTCXGG2753252B (“Draft Bills of Lading”) [145-148] were drafted by KMTCL to the shipper, Renqiu Dongtai Import & Export Trade Co Ltd (“Renqiu”) in China.

The third defendant, KMTC Line (Malaysia) Sdn Bhd is KMTCL’s agent in Malaysia to handle the shipments carried by KMTCL to and from Malaysia. At all material times, the relationship of KMTCL and the Third Defendant is governed by the Agency Agreement dated 1 January 2020 (“Agency Agreement”) [149-157].

Heung A Line Co Ltd (HALCL), a Korean Company, is filing Enclosure 40 to seek leave to intervene in this present Suit. HALCL is the carrier that carried the cargo contained in containers numbered SKHU9973596, SKHU6389510 and HALU5685114 (“the Cargo”). HALCL was the party in possession of the Cargo at the time when the (Ex Parte) Injunction Application dated 15 March 2025 was applied for and the (Ex Parte) Injunction Order for Enclosure 3 dated 19 March 2025 ("(Ex Parte) Injunction Order") was executed against the

HALCL also prepared the draft Bills of Lading No. HASLC02241200927 and HASLC02241200929 (“Draft Bills of Lading”), which the Plaintiff cited as evidence of its claimed ownership of the Cargo. According to HALCL, the fourth defendant named in this action is merely an agent or representative of HALCL, the principal of the Fourth Defendant, under an Agency Agreement dated 20 December 2019 ("Agency Agreement").

The plaintiff objects to both the intervening application and seeks an order for the affidavits filed to be struck out on the following grounds, among others. i. Affidavit in Support filed by the solicitors of the proposed intervener exhibited a copy of an unsworn affidavit of the deponent. ii. Sijil Perakuan for the exhibits in the Affidavit in Support filed by the solicitors of the proposed intervener were not attested. iii. Affidavit in Support of Son Youngwon (Enclosure 79) and Affidavit in Support of Seil Kim (Enclosure 82) were filed after 14 days and in breach of Order 32 rules 13(2)(a) RoC iv. The solicitors for the proposed intervenors should not file affidavit in support because the contested matter is not within the personal knowledge of the solicitors and contravene with Order 41 rules 5 RoC 2012. v. There is indolence and undue delay by the deponents in filling the Affidavits. vi. The irregularities are fundamental and cannot be cured. C.

The main issue to be decided is whether the intervenors’ application is tainted with serious and fundamental defects that are not curable. D.

The main reason stated by the plaintiff is that the affidavit supporting Enclosures 27 and 40 is affirmed by counsel instead of the proposed intervenors. Besides that, the exhibits, which include the affidavit by the deponent, were not signed and stamped by the Councillor and contravene Order 15, Rule 16, RoC 2012. The plaintiff asserts that affidavits must be affirmed before a Commissioner for Oaths, Notary Public, or Consular Office.

The plaintiff also asserted that the proposed intervenors have breached their undertaking to file an affidavit within 21 days from the date of the application. According to the plaintiff, the proposed intervenors also failed to file a formal application for leave to regularise affidavits of the deponent.

The learned counsel for the plaintiff is relying on the case of Gan Thing Phing v Ong Gek Kim (No. 2) [1998] 7 MLJ 351 and Metro Kajang Construction Sdn Bhd v Eka Bahtera Sdn Bhd [2001] AMEJ 0219; [2001] 6 MLJ 129; [2001] 3 CLJ 951.

In Gan Thing Phing v Ong Gek Kim (supra), it was held that:

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have been completed by the commissioner for oaths. The answer is obviously in the negative. The jurat manifests only the name of the interpreter once, whereas there are two blanks for the name of the interpreter Yee Mei Ken to be entered ie twice, before it can be said to have been ‘completed … by the person before whom it is sworn’ as prescribed in O 41 r 1(7) of the RHC. There is a plethora of authorities to the effect that O 41 of the RHC contains provisions which are mandatory and a failure to comply therewith would render the impugned affidavit or affidavits defective and null and void.

Conversely, the learned counsel for the defendant submitted that they filed the solicitors' affidavit, attaching the deponents’ affidavit. In paragraph 4 of the Affidavit of Tan Hui Ling (Enclosure 28), it was explained that the affidavit of the counsel was filed because the proposed intervenors had to legalise the document and scheduled an appointment with the Councillor to affirm the affidavits.

This Court is of the view that both cases referred to by the learned counsel for the plaintiff were decided prior to the enforcement of the Rules of Court 2012.

Order 1A of the RoC 2012 reads – 1A Regards shall be to justice 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.

After evaluating the submissions from the learned counsel for both parties, this Court is of the opinion that no prejudice has been caused to the plaintiff. Later on, the representative of Heung A Line Co., Ltd, Son Youngwon affirmed an Affidavit In Support of Enclosure 79 before the Consular Officer at the Embassy of Malaysia in Seoul on 27 May 2025 to support the application to intervene.

The Notice of Application to intervene was filed on 5 May 2025, and the Affidavit in Support of Seil Kim was filed on 20 June 2025 (Enclosure 82). The plaintiff has the opportunity to reply to the said affidavit.

The Rules of Court under Order 32 Rule 13(2) (d) RoC 2012 clearly give discretion to the Court to otherwise direct parties with regard to the filing of affidavits.

This Court refers to paragraph 4 of the Counsel’s Affidavit (Enclosure 28) which explained the reason for the delay as follows – “4. Memandangkan wakil Pencelah yang Dicadangkan adalah berpangkalan di Republik Korea, wakil mereka tidak dapat mengikrarkan Afidavit Sokongan (Afidavti tersebut) untuk menyokong Permohonan tersebut dalam masa yang ditetapkan. Saya telah difahamkan oleh Pencelah yang Dicadangkan bahawa wakil Pencelah yang Dicadangkan SEIL KIM sedang membuat segala persiapan yang berkenaan untuk mengikrarkan Afidavit tersebut di hadapan Pegawai Konsular dan ini mungkin akan mengambil masa beberapa minggu. Semua Afidavit tersebut yang ditandatangani dan akan diikrarkan oleh Seil Kim selepas ini adalah dilampirkan di sini dan ditandakan sebagai THL-1.

Memandangkan wakil Pencelah yang Dicadangkan dapat mengikrarkan dan memfailkan Afidavit tersebut sebelum / pada tarikh yang ditetapkan oleh Kaedah-kaedah Mahkamah 2012, kami selaku peguam cara Pencelah yang Dicadangkan memfailkan Afidavit yang ditandatangani tersebut yang dibekalkan oleh wakil Pencelah yang Dicadangkan Seil Kim melalui Afidavit Peguamcara ini yang mana dilampirkan di sini dan ditandakan sebagai Ekshibit THL-1.

This Court finds that the learned counsel for the proposed intervener has given a reasonable explanation regarding the filing of Solicitor's Affidavit in Enclosure 41 and the delay in filing the Affidavit in Support by Son Youngwon.

The affidavit affirmed by Tan Hui Ling in Enclosure 41 is not an affidavit in support of Enclosure 40. This Court finds that although the said affidavit was filed after the lapse of 21 days from the date of filing Enclosure 40, pursuant to Order 32 Rule 13(2)(d) RoC 2012, the contents of the Affidavit in Support by the deponent have been attached as an exhibit in the counsel’s affidavit. This Court is of the opinion that no element of surprise can prejudice the plaintiff if this Court accepts the Affidavits in Support and the affidavit in reply.

In the case of Chai Say Fah v Hartawan Aman Sdn Bhd [2015] 6 MLJ 277, the Court of Appeal, it was held that justice requires that litigation is disposed of on the merits of the case, and not on the secondary merits of adherence to provisions of the rules, unless it is demonstrated that non-compliance is contumelious or has denied the other party from a fair opportunity to defend himself.

This Court has an obligation to consider the rights and duties of all parties based on the merits. Therefore, pursuant to Order 92 rule 4 RoC 2012, this Court exercise its inherent jurisdiction to do justice between parties. E.

Based on the reason above, Enclosures 97 and 99 are dismissed with costs in the cause. Dated 18th September 2025. Signed .......................................... HAZIZAH KASSIM Judicial Commissioner High Court of Civil (NCvC10) Shah Alam, Selangor

For the Plaintiff : Bhavanash Sharma, Chetna Brijmohan Messrs Bhavanash Sharma (Wilayah Persekutuan Kuala Lumpur)

For the 1st Defendant : - For the 2nd Defendant : Messrs Ricky Tan & Co (Wilayah Persekutuan Kuala Lumpur) For the 3rd and 4th Defendant and the Proposed Intervener : Oon Thian Seng, Lionel Navin Noel, Tan Hui Ling & Ng You Xian Messrs T S Oon & Partners (Wilayah Persekutuan Kuala