Climax Sdn Bd v Nicholasia Else A/P A.G De Cruz (WA-12ANCvC-162-09/2024)

NICHOLASIA ELSE A/P A.G DE CRUZ

SHAUN ADRIAN NETTO (NO K/P: 781109-10-5119) (DEFENDAN KEDUA DAN DEFENDAN KETIGA DISAMAN SEBAGAI RAKAN KONGSI DI BAWAH NAMA DAN GAYA PERKONGSIAN CRUZ GOURMET

AXIS DINER SDN BHD (NO SYARIKAT: 201501027135 (1152459-V)) ...RESPONDEN-RESPONDEN DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA NO GUAMAN SIVIL. WA-B52NCvC-190-05/2023 ANTARA 13/01/2025 15:12:50 WA-12ANCvC-162-09/2024 Kand. 16 CLIMAX SDN BHD (NO SYARIKAT: 202201009995(14556922-U)) ….PLAINTIF

NICHOLASIA ELSE A/P A.G DE CRUZ

SHAUN ADRIAN NETTO (NO K/P: 781109-10-5119) (DEFENDAN KEDUA DAN DEFENDAN KETIGA DISAMAN SEBAGAI RAKAN KONGSI DI BAWAH NAMA DAN GAYA PERKONGSIAN CRUZ GOURMET

AXIS DINER SDN BHD (NO SYARIKAT: 201501027135 (1152459-V)) ...DEFENDAN-DEFENDAN

The Plaintiff’s appeal to this Court is against the decision of the Sessions Judge who had disallowed an application for committal filed against the Defendants. Brief facts

The dispute between the Plaintiff and the Defendants was the period of sub tenancy agreed upon of a premise at No 125A, Jalan Gasing, section 10. 46000 Petaling Jaya, Selangor (“the said premise”).

The Plaintiff contends that the Defendant had represented to him the period of tenancy will be for a period of 3 years. The Defendant on the other hand contend that as per the sub tenancy agreement the sub tenancy was for 1 year with an option of a further 1 year.

In pursuance of his claim the Plaintiff had applied for discovery of documents which include the whole sub tenancy agreement which the Defendants contend that they do not have.

On Defendants refusal to produce the sub tenancy agreement as directed by the court the Plaintiff filed leave for committal by way of an ex parte application. The leave application was allowed by the Court on 10/1/2024.

The leave application was filed in pursuance of Order 52 Rule 3(2) of the Rules of Court 2012 (“the Rules”) which provides:

Application to Court (O. 52 r. 3)

No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

The main grounds for asking for committal is the denial of the Defendants that they have the sub tenancy agreement when they had produced the sub tenancy agreement to the Majlis Bandaraya Petaling Jaya (“MBPJ”) when it was applied for by another party. According to the Plaintiff the Defendants by their actions were intentionally concealing the sub tenancy agreement.

The main ground the learned Judge in disallowing the application for committal is that the burden to proof that the sub tenancy agreement produced at the MBPJ is the same sub tenancy agreement relied upon by the Plaintiff in this case. Was upon the Plaintiff. The Plaintiff had failed to discharge this burden. This Court’s decision

This Court agreed with the learned Sessions Judge that the Court will have to first determine and ascertain that the agreement to the MBPJ is the same agreement that the Plaintiff is relying in this case.

The Plaintiff could have discharged the burden by applying to the MBPJ to produce this agreement to this court. This would have shown that the Defendants were intentionally concealing the sub tenancy agreement to defeat the Plaintiff’s claim

The Plaintiff could have applied for MBPJ to produce the sub tenancy agreement under Order 24 Rule 7(1) of the Rules which provide as follows:

Order for discovery of particular documents (O. 24 r. 7)

Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

Order 24 Rule 7A is also relevant as it provides:

Discovery against other person (O. 24 r. 7A)

An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

Further in the Court’s view an application for committal before the beginning of the trial by the Plaintiff is mala fide as it has the effect of tainting the credibility of the Defendants. This was done in order to bolster up the Plaintiff’s claim. This is a clear abuse of the process of court.

In the upshot the Court dismissed the Plaintiff’s appeal with a cost of RM3,000. Dated: 10.1.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Bhavanash Sharma A/L Gurchan Singh Sharma Tetuan Bhavanash Sharma Blok L, Level 7-1, No. 2 Jalan Solaris, Solaris Mont Kiara, 50480 Kuala Lumpur. For the Defendant: Nama Peguamcara: Kavan Wee Kien Guan / Vishnu Kumar Tetuan Syed Alwi, Ng & Co 18th Floor, Bangunan Ambank, 55, Jalan Raja Chulan, 50200 Kuala Lumpur.