D Aman Crimson Management Corporation v 1. ) Matrix Parking Solution Sdn Bhd (BA-22NCvC-69-02/2024)

MATRIX PARKING SOLUTION SDN BHD

SIMPLEX EQUITY SDN BHD

CHIN WING WAH

SUKUMARAN A/L K.S. NAIR

MAJLIS BANDARAYA PETALING JAYA …DEFENDAN-DEFENDAN

The 1st and 2nd Defendants applied for interlocutory injunctions on an ex-parte basis in Enclosure 83 together with Certificate of 17/09/2025 13:04:12 BA-22NCvC-69-02/2024 Kand. 110 S/N gfdj/7q90Sihr6yoOdFrg Urgency on 17-7-2025 and were granted orders on 18-7-2025 by another High Court (“Ex-Parte Order”). The Plaintiff filed Enclosure 88 on 21-7-2025 to set aside the Ex-Parte Order.

The Ex-Parte Order was sought in response to the Plaintiff’s notice to the 1st Defendant on 16-7-2025 to remove the automatic barrier gate, access card machine, guard post etc. (collectively “Boomgate Structures”) erected on the common property that control access into and exit from the strata property of which the Plaintiff is the Management Corporation (“D’Aman Crimson”). The injunction would have restrained the Plaintiff from dismantling the Boomgate Structures, disconnecting power and interfering with the same pending trial.

Both applications were heard inter partes before this Court on 5-8-2025 and decision was reserved until 19-8-2025. These are grounds for the Court’s decision on 19-8-2025 to dismiss Enclosure 83 and allow Enclosure 88 in part. Background facts

D’Aman Crimson comprises retail and office lots on the ground and first floor, with residential lots above it. It was developed by Crimson Commercial Park Sdn. Bhd. The 2nd Defendant owns Strata Parcel No. 70 in the development. Several car park lots in the podium and basement level car park (“Basement Car Park”) and all of the open-air perimeter car parks (“Perimeter S/N gfdj/7q90Sihr6yoOdFrg Car Park”) are designated as accessory parcels belonging to the 2nd Defendant.

The Basement Car Park and Perimeter Car Park were managed and controlled by the 1st Defendant under license from the 2nd Defendant since arrangements to that effect were established with the agreement of Crimson Commercial Park Sdn. Bhd. before the Plaintiff was formed on 7-7-2009. The 1st Defendant had allegedly incurred expenditure to maintain and operate the Boomgate Structures and contributed to some costs of upkeeping the Perimeter Car Park. The arrangement carried on for some time after with the concurrence of prior committees of the management corporation, until disputes arose.

The Boomgate Structures facilitate the 1st Defendant’s private car park business using the car park lots belonging to the 2nd Defendant at D’Aman Crimson. It is not disputed that the Boomgate Structures are erected on common property, and the underlying premise of the Plaintiff’s present action is for trespass. There is a pending suit in another High Court where the Plaintiff seeks to claim title over the 2nd Defendant’s car park lots.

The 1st and 2nd Defendants had earlier moved this Court for a similar urgent injunction affecting the barrier gate at the Basement Car Park at the start of this action. Then, the Plaintiff had already acted to remove the automatic barrier gate before the 1st and 2nd Defendants could move the Court for the S/N gfdj/7q90Sihr6yoOdFrg injunction. Then, the interlocutory injunction was dismissed as this Court was of the view that damages were an adequate remedy and the balance of convenience justified the Plaintiff assuming control of the barrier gate for entry into the Basement Car Parks due to the security reasons cited. Analysis and findings

In moving the Court for an interlocutory injunction, it is trite that the burden is on the 1st and 2nd Defendants to satisfy the American Cyanamid test (American Cyanamid Co v Ethicon Ltd [1975] AC 396, Keet Gerald Francis Noel John v Mohd Noor @ Harun bin Abdullah & 2 Ors [1995] 1 CLJ 293).

As submitted by the 1st and 2nd Defendants, the threatened act of dismantling the Boomgate Structures at the Perimeter Car Park would constitute a trespass to the 1st Defendant’s personal property before the issue of the 2nd Defendant’s right to operate a car park business for the car park lots it owns, and 1st Defendant’s rights as its licensee are determined at trial.

This Court agreed with the 1st and 2nd Defendants that there are bona fide issues to be tried, and the Plaintiff conceded as much. Based on the facts, however, this Court found that the physical Boomgate Structures threatened to be removed are compensable in damages, as is any loss in business revenue S/N gfdj/7q90Sihr6yoOdFrg caused by disruption to the 1st Defendant’s car park business. The 1st and 2nd Defendants also have a pending counterclaim for damages in this action.

This Court could find no factual or evidential basis in the affidavits to support counsel’s assertion in the course of arguments that damages are inadequate because long-term car park users who have leased car park lots at the Perimeter Car Park will be barred from entry. It is not clear if the facts are related, but this Court noted that there are substantial outstanding charges allegedly due and owed by the 2nd Defendant to the Plaintiff. This fact was not highlighted. Perhaps the fear is that the 1st and 2nd Defendants and their sub-licensees will be barred from entry for that reason, but it is not for this Court to speculate.

Conceptually, there was force in the argument advanced by the 1st and 2nd Defendants that the Plaintiff’s actions are obstructive to the administration of justice as the threatened act of dismantling the Boomgate Structures is precisely the remedy that the Plaintiff is seeking at the trial set down on 4 to 7 May 2026, and that the Plaintiff is in effect destroying evidence of its wrongdoing. However, the short answer to this is that: a) there is no prohibition against self-help by the Plaintiff to recover possession of the common property on which the Boomgate Structures are erected since the 1st and 2nd S/N gfdj/7q90Sihr6yoOdFrg Defendants are not occupiers within the meaning of section 7(2) of the Specific Relief Act 1950; and b) the existence of the Boomgate Structures and their location are well documented and not in dispute. Survey plans and photographic evidence of the boom gates should suffice for the trial of this action, which is a straightforward claim of trespass on the one hand, and a claim to a license coupled with equity on the other.

In any case, this Court was also constrained to find that the balance of convenience is not with the 1st and 2nd Defendants. The grounds upon which the Plaintiff had given notice to remove the Boomgate Structures were as follows: a) discovery that the 1st Defendant was conducting an unlicensed car park business at the property, as its business license had not been renewed by the Petaling Jaya City Council for 2025; and b) prior incidents, of which one on 24-2-2025 was illustrative, when emergency responders were prevented by the presence of the automatic barrier gates among the Boomgate Structures for the Perimeter Carpark, from responding promptly to emergencies at D’Aman Crimson. The next section of this Judgment considers these allegations in more detail. S/N gfdj/7q90Sihr6yoOdFrg

This Court set aside the Ex-Parte Order because in moving the Court on an ex-parte basis, there was clearly non-compliance with Order 29 Rule 1 (2A) of the Rules of Court 2012 by the 1st and 2nd Defendants. In particular, the affidavit in support of an application made ex parte must contain a clear and concise statement of: “(d) any answer by the other party (or which he is likely to assert) to the claim or application;

any facts which may lead the Court not to grant the application ex parte or at all”.

The supporting affidavit for Enclosure 83 did not highlight the material fact that the 1st Defendant had been operating the car park business throughout 2025 without a business license, facilitated as it were, by the presence of the Boomgate Structures. The 1st and 2nd Defendants’ affidavits also offered no version of the 24-2-2025 incident involving the obstruction of emergency responders, whether in support of the Ex-Parte Order or to refute the Plaintiff’s version of events at the inter-partes hearing. S/N gfdj/7q90Sihr6yoOdFrg

In any ex-parte application, it is trite that there must be full and frank disclosure of all relevant materials, including points that may be unfavourable to an applicant. As a useful reminder, Lordship Bingham J (as he then was) said this in Siporex Trade SA v. Comdel Commodities Ltd [1986] 2 Lloyd's Rep 428: “The scope of the duty of disclosure of a party applying ex parte for injunctive relief is, in broad terms, agreed between the parties. Such an applicant must show the utmost good faith and disclose his case fully and fairly. He must, for the protection and information of the defendant, summarize his case and the evidence in support of it by an affidavit or affidavits sworn before or immediately after the application. He must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. He must investigate the nature of the cause of action asserted and the facts relied on before applying and identify any likely defences. He must disclose all facts which reasonably could or would be taken into account by the judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed, the court may discharge the injunction even if after full enquiry, the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure. Most of these principles are established by authorities such as Rex v. S/N gfdj/7q90Sihr6yoOdFrg The Kensington Income Tax Commissioners [1917] 1 KB 486; Thermax Ltd v. Schott Industrial Glass Ltd [1981] FSR 289; Wardle Fabrics Ltd v. G Myristis Ltd [1984] FSR 263; BankMellat v. Nikpour [1985] FSR 87.” (Emphasis added.) (See also Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2004] 1 CLJ 239; Lim Sung Huak & Ors v Syarikat Pemaju Tanah Tikam Batu Sdn. Bhd. [1994] 1 CLJ 264).

Although the notice from the Plaintiff alluding to the reasons for the notice to dismantle the Boomgate Structures was exhibited in the affidavit, it was not set out in the body of the affidavit in any meaningful way. All that the deponent of the 1st and 2nd Defendants’ affidavit averred to was as follows at the end of a 68 paragraph affidavit: S/N gfdj/7q90Sihr6yoOdFrg

In the circumstances, the 1st and 2nd Defendants did not make full and frank disclosure of material facts as they were duty-bound to do, by setting out expressly and unambiguously, what answers are likely to be asserted by the Plaintiff in response to the injunction application, namely: a) facts relating to the illegality of the 1st Defendant’s continued operation of an unlicensed carpark on the common property at D’Aman Crimson; b) the incident on 24-2-2025 involving delay and obstruction to the entry of emergency responders; and c) the 2nd Defendant’s unpaid dues to the Plaintiff. all of which, albeit disputed, may have led the Court not to grant the application ex-parte or at all if they had been highlighted.

Finally, it was also noted that the 1st and 2nd Defendants also gave no undertaking as to damages on affidavit as is required in any interlocutory injunction application. S/N gfdj/7q90Sihr6yoOdFrg

Thus, upon review of the affidavits and submissions and after hearing both enclosures on an inter-partes basis, this Court dismissed Enclosure 83 and allowed only prayer 1 of Enclosure 88 to set aside the Ex-Parte Order, both with costs in the cause. This Court further allowed an oral application for a stay of execution for two (2) weeks pending the filing of a formal stay application with the status quo remaining as at the date of the Order. However, it is noted that as at the date of this Judgment, no formal application for stay was filed.

As a post-script, although this Court had determined that Enclosure 83 ought to be dismissed, it was by no means an endorsement or an invitation to the Plaintiff to engage in pre-emptive self-help actions before the issue is resolved in the action set down for trial. This Court had granted an ad interim injunction after hearing arguments and pending the decision which called for a level of cooperation between the parties in the interim.

The Plaintiff was reminded that while the Boomgate Structures are erected on common property, it is also undisputed that until it is decided otherwise in other pending Court proceedings, the 2nd Defendant is the registered proprietor of the car park accessories. The substantive merits of this case have yet to the determined, and it remains to be seen if the Plaintiff is right and if financial consequences will follow from any unwarranted use S/N gfdj/7q90Sihr6yoOdFrg of its powers as the management corporation. The Plaintiff’s pre-emptive actions since filing this action may be taken into account in the assessment of damages. Bertarikh : 17 September 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif: Parma a/l Chandravevah (Messrs Parma’s Chamber) Peguam bagi pihak Defendan Pertama, Kedua. Ketiga & Keempat: Joseph George (The Law Office of Patrick Samuel) Peguam bagi pihak Defendan Kelima: Tashalini Kopal (Messrs Kanesh Sundrum & Co.) S/N gfdj/7q90Sihr6yoOdFrg